Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD204528, Melinda J. Lasater, Judge. Affirmed.
McDONALD, J.
Jared Jacobson appeals a judgment following his jury convictions on two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). On appeal, he contends the evidence is insufficient to support his convictions.
All statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On the morning of February 4, 2007, Caroline Ridout-Stewart and her husband, Donald Stewart, were walking near a pharmacy in San Diego. Caroline heard a person running behind them and yelling in an angry or threatening manner. That person, Jacobson, ran past them, pivoted, and then ran toward them. He stabbed Caroline in the back with a knife and she fell to the ground and screamed for help. Jacobson then stabbed Donald in his armpit and also in his upper back. Several witnesses yelled at Jacobson to stop. Jacobson then threw his knife to the ground, sat down on a nearby curb, and lit a cigarette. Witnesses called 911 and Caroline and Donald were transported to a hospital.
Both Caroline and Donald required surgery for their stab wounds.
When police arrived, Jacobson was calmly sitting on the curb. When an officer asked whether he had any weapons, he pointed toward some parked cars and stated: "That's the knife." Jacobson was arrested and placed in a patrol car. He was animated and made faces at the news media's cameras as he sat in the car. Officer Edmund Lavalle transported Jacobson to police headquarters. After they departed, Jacobson's demeanor changed and he was not animated or making faces. On the way, Jacobson stated: "I hope the county will put up with me." He further stated: "I just stabbed those people." He also stated: "I should have stabbed him more. Am I in big trouble?" He commented that people were fragile and the knife went in like butter. He also stated: "It's so easy to shank people. Give me another shank, and I will shank more people. That was f---ing fun." Jacobson said he was a "cutter" and had cut himself, including his penis. He asked Lavalle whether he was going to kill him.
A second amended information charged Jacobson with two counts of torture (§ 206) and two counts of assault with a deadly weapon (§ 245, subd. (a)(1)). It also alleged that in committing each of the assaults Jacobson personally used a deadly weapon (§ 1192.7, subd. (c)(23)) and personally inflicted great bodily injury (§ 12022.7, subd. (a)). It further alleged that Jacobson had one prior prison term (§§ 667.5, subd. (b), 668).
At trial, Caroline, Donald, various percipient witnesses, police officers, and others testified for the prosecution. The prosecution also played a videotape of the attack recorded by the pharmacy's parking lot surveillance cameras. The prosecution also presented a photograph of the knife used in the attack. It was a paring knife with a blade about two to three inches long.
In his defense, Jacobson presented the testimonies of witnesses to show he suffered from a mental illness at or about the time of the incident. On January 28, 2007, Jacobson was admitted to the San Diego County Psychiatric Hospital. He tested positive for methamphetamine. Benjamin Bensoul, a California Parole Department staff psychiatrist, testified that on January 29, 2007, Jacobson came to see him at his office a few days after he (Jacobson) had been released from custody after a parole violation. Jacobson was cooperative, but easily distracted. He made bizarre and illogical statements and laughed inappropriately. He stated he had been hearing voices in his head and had cut parts of his body, including his penis. He had not been taking the medication he was given on his release from prison. Jacobson told Bensoul he had first been hospitalized for psychiatric reasons at age 13. In the past, he had tried to commit suicide by hanging himself, jumping off the Brooklyn Bridge, and overdosing on medication. Bensoul concluded Jacobson was psychotic and suffered from schizophrenia.
On January 31, 2007, police responded to a call that Jacobson had injured himself. Jacobson appeared sleepy and not "fully there." The officers observed Jacobson had injuries to his arms and legs, and blood had soaked through his pants. He stated he had injured himself and had used methamphetamine. Police took Jacobson to the hospital and on the way Jacobson sang songs about self-mutilation and suicide. He asked police to shoot him. After he was treated at the hospital, Jacobson was taken to the San Diego County Psychiatric Hospital for evaluation. There, Jacobson tested negative for methamphetamine. He was lethargic, his speech was slurred, and he was anxious. He was admitted to the hospital for a few days and, on one occasion, screamed, appeared angry, and pounded on windows. He demanded to be discharged so he could go to an emergency room for dental work. He was given Seroquel, commonly used to treat psychosis, disorganized thinking, and schizophrenia. On February 2, 2007, after calming down, Jacobson was discharged from the hospital.
In rebuttal, the prosecution presented the testimony of Robert Bloomgarden, a psychiatrist in the emergency room at the San Diego County Psychiatric Hospital. He testified that on January 27, 2007, Jacobson was admitted to the hospital for being a danger to himself and others. He had been detained by police for screaming at people, throwing trash cans, and threatening to kill people. On his admission, he was frothing at the mouth, screaming and yelling profanities, and highly agitated. Jacobson was treated with antipsychotic medications. On January 28, Jacobson admitted he had used methamphetamine. Bloomgarden diagnosed Jacobson's condition as polysubstance dependence and probable methamphetamine intoxication with borderline mixed personality disorder and antisocial features. On January 28, Jacobson was discharged from the hospital. Later that day, he returned and claimed he had a greater desire to cut himself. He tested positive for methamphetamine. On January 29, he was pleasant and relatively normal, and he was discharged that day.
On January 31, Jacobson returned to the hospital. Although Jacobson tested negative for drugs, Bloomgarden believed he was possibly suffering from a drug-induced psychosis. He was agitated, screaming, and banging on the walls. Bloomgarden again concluded Jacobson was suffering from polysubstance dependence and an antisocial personality disorder. Bloomgarden stated the symptoms of methamphetamine dependence could not, in most cases, be differentiated from paranoid schizophrenia because their symptoms appear the same. Nevertheless, Bloomgarden attributed Jacobson's psychotic behavior to substance abuse and malingering, although he admitted there were no tests for, and he had not diagnosed Jacobson's condition as, malingering.
As noted above, Jacobson was discharged from the hospital on February 2, 2007.
San Diego County Deputy Sheriff Chris Pangalos testified that he was working as a court bailiff on February 7, 2007. Jacobson was in the courtroom and appeared agitated, upset, and angry. He was screaming and causing a commotion during his hearing. Pangalos helped remove Jacobson from the courtroom. Immediately after he left the courtroom, Jacobson's demeanor drastically changed and he became relaxed. He told Pangalos: "Okay. Okay, I'm done. I just want to get it on the record."
The jury found Jacobson guilty on both assault counts and not guilty on both torture counts. The jury also found true the allegations that Jacobson, in committing the assaults, personally used a deadly weapon and personally inflicted great bodily injury. He admitted the truth of the prior prison term allegation. The trial court sentenced him to a total term of 10 years in prison. Jacobson timely filed a notice of appeal.
The court imposed the upper term of four years for Jacobson's first assault conviction, with a consecutive three-year enhancement for the related great bodily injury allegation, and a consecutive one-year term for the second assault conviction, with a consecutive one-year enhancement for the related great bodily injury allegation. The court also imposed a consecutive one-year term for his prior prison term.
DISCUSSION
I
The Offense of Assault and Mental Impairment Evidence Generally
Section 240 defines the offense of assault as "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." Section 245, subdivision (a)(1), defines the offense of assault with a deadly weapon as the commission of "an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury." Assault is a general intent crime. (People v. Williams (2001) 26 Cal.4th 779, 788.) "[A]ssault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another." (Id. at p. 790.)
"Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent." (§ 22, subd. (b); People v. Hood (1969) 1 Cal.3d 444, 458-459; People v. Williams, supra, 26 Cal.4th at p. 788; People v. Atkins (2001) 25 Cal.4th 76, 81.) Because assault is a general intent crime, evidence of a defendant's voluntary intoxication in determining whether an assault was committed or whether general intent existed is not relevant. Evidence of a defendant's involuntary intoxication generally is admissible and may be considered by the jury in determining whether a defendant had the requisite specific intent for an offense. (People v. Scott (1983) 146 Cal.App.3d 823, 831-833.) However, we are unaware of any case that has decided whether evidence of involuntary intoxication is admissible to show a defendant did not have the requisite general intent for a general intent crime (although in certain circumstances § 26 defenses such as unconsciousness, accident, or mistake of fact presumably could apply). (Cf. People v. Chaffey (1994) 25 Cal.App.4th 852, 856 [in case involving a specific intent crime, the court stated: "A person whose intoxication is not voluntary is relieved from liability because of excusable mistake."].)
Unlike evidence of intoxication, admissibility of evidence of mental illness, disease, or defect has not, to date, been based on whether that illness, disease, or defect is "voluntary" or "involuntary." Rather, those types of mental impairments apparently have been grouped together and that evidence has been deemed admissible only on the issue of whether a defendant had the requisite specific intent for an offense. (§ 28, subd. (a) ["Evidence of mental disease, mental defect, or mental disorder shall not be admitted to show or negate the capacity to form any mental state, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act. Evidence of mental disease, mental defect, or mental disorder is admissible solely on the issue of whether or not the accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged."]; People v. Williams (1997) 16 Cal.4th 635, 677; People v. Mejia-Lenares (2006) 135 Cal.App.4th 1437, 1450.) Regarding a general intent crime, one court stated: "Evidence of defendant's mental condition is not admissible to prove the absence of general intent." (People v. Jefferson (2004) 119 Cal.App.4th 508, 519, citing People v. Gutierrez (1986) 180 Cal.App.3d 1076, 1082.) Gutierrez stated: "Mental illness poses a policy dilemma similar in many respects to that of voluntary intoxication." (Gutierrez, at p. 1082.) "Accordingly, the rule has developed that evidence of mental illness may be offered to show the absence of specific intent but not to prove the absence of general intent." (Ibid.)
We are unaware of any case that directly addresses the issue of whether evidence of an "involuntary" mental illness, disease, defect, disorder, or condition is admissible to show a defendant did not have the requisite mental state for a general intent crime. Nevertheless, People v. Coddington (2000) 23 Cal.4th 529 (overruled on another ground by Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13) arguably supports the admissibility of evidence of mental illness to disprove that the defendant actually harbored the mental state element required for an offense. Coddington noted section 28 permits "introduction of evidence of mental illness when relevant to whether a defendant actually formed a mental state that is an element of a charged offense, " but not on whether a defendant had the mental capacity to form that mental state. (Coddington, at p. 582.) We believe it has yet to be decided whether "involuntary" mental illness, disease, defect, disorder, or condition is admissible to show a defendant did not have the requisite mental state for a general intent crime. In contrast, evidence of "voluntary" mental impairment caused by voluntary intoxication presumably is inadmissible to disprove a general intent crime in accordance with the general rule excluding evidence of voluntary intoxication on the issue of general intent. Nevertheless, one court has concluded evidence of voluntary intoxication with its resultant mental impairment or disorders is admissible to disprove a specific mental state (e.g., knowledge) that is an element of a general intent crime. (People v. Reyes (1997) 52 Cal.App.4th 975, 982-985.)
II
Substantial Evidence to Support Assault Convictions
Jacobson contends the evidence is insufficient to support his convictions for assault with a deadly weapon; his mental illness precluded him from having the intent required for an assault offense.
A
When a defendant contends on appeal there is insufficient evidence to support his or her conviction of an offense, we apply the substantial evidence standard of review. "In determining evidentiary sufficiency, the court reviews the entire record, in the light most favorable to the judgment, for the presence of substantial evidence. Substantial evidence is evidence sufficiently reasonable, credible, and of such solid value 'that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.] The same standard of review applies in considering circumstantial evidence...." (People v. Chatman (2006) 38 Cal.4th 344, 389.) If substantial evidence supports the verdict, we defer to the trier of fact and do not substitute our evaluation of a witness's credibility for that of the trier of fact. (People v. Snow (2003) 30 Cal.4th 43, 66.) If the circumstances reasonably support the trier of fact's findings, our belief that the circumstances might also reasonably support a contrary finding does not warrant a reversal of the judgment. (People v. Abilez (2007) 41 Cal.4th 472, 504.) " 'Before the judgment of the trial court can be set aside for the insufficiency of the evidence, it must clearly appear that on no hypothesis whatever is there sufficient substantial evidence to support the verdict of the [finder of fact].' [Citation.]" (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573, quoting People v. Hicks (1982) 128 Cal.App.3d 423, 429.)
When arguing insufficiency of the evidence on appeal, a defendant must affirmatively show the evidence is insufficient. (People v. Sanghera, supra, 139 Cal.App.4th at p. 1573.) That showing cannot be made by citation only of evidence in the defendant's favor or by portraying the evidence in the record most favorably to the defendant. (Id. at pp. 1573-1574.)
B
The trial court instructed with a modified version of CALCRIM No. 875 on the offense of assault with a deadly weapon. That instruction, however, omitted three of the four elements set forth in the standard CALCRIM No. 875 instruction. Its instruction omitted the element that the defendant did the act "willfully." Nevertheless, its instruction stated: "Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage." Furthermore, the court instructed on the lesser included offense of simple assault, including the element that "the defendant did that act willfully."
The trial court's instruction omitted elements 2 through 4 of the standard CALCRIM No. 875 instruction: "2. The defendant did that act willfully; [¶] 3. When the defendant acted, (he/she) was aware of facts that would lead a reasonable person to realize that (his/her) act by its nature would directly and probably result in the application of force to someone; [¶] [AND] [¶] 4. When the defendant acted, (he/she) had the present ability to apply force (likely to produce great bodily injury/with a deadly weapon...) to a person[.]"
The trial court also instructed with a modified version of CALCRIM No. 3428 on the defense of mental impairment: "You've heard evidence that the defendant may have suffered from a mental disease or disorder. You may consider this evidence only for the limited purpose of deciding whether at the time of the charged crime the defendant acted with the intent or mental state required for that crime. The People have the burden of proving beyond a reasonable doubt that the defendant acted with the required intent or mental state. If the People have not met this burden, you must find the defendant not guilty of torture."
C
Considering all of the evidence, including reasonable inferences from the evidence, favorably to support the judgment, we conclude there is substantial evidence to support Jacobson's two convictions of assault with a deadly weapon. With a knife in his hand, Jacobson angrily ran toward Caroline and Donald, stabbed Caroline, and then stabbed Donald. The circumstances of the incident support a reasonable inference that Jacobson willfully and intentionally committed each act of stabbing Caroline and Donald with the knife. In fact, there is no substantial evidence to support a contrary finding (e.g., that the stabbings were accidental or that Jacobson was unconscious at the time). Furthermore, Jacobson's statements to police after the incident show he was aware of the nature of his acts and intended to commit those acts. Jacobson admitted he stabbed Caroline and Donald, stating: "I just stabbed those people, " and "I should have stabbed him [Donald] more." He commented that the knife went in like butter. He further stated: "It's so easy to shank people. Give me another shank, and I will shank more people. That was f---ing fun." Considering all of the evidence, including reasonable inferences, favorably to support the judgment, there is substantial evidence to support findings that Jacobson intentionally stabbed Caroline and Donald with a deadly weapon and actually knew facts sufficient to establish that those acts by their nature would probably and directly result in the application of physical force against another. (People v. Williams, supra, 26 Cal.4th at p. 790.)
Because Jacobson does not contend on appeal that the trial court erred in instructing the jury on the offense of assault with a deadly weapon, he has waived or forfeited that contention. In any event, based on our reading of the instructions as a whole, we believe the jury was effectively instructed that the defendant must commit the act "willfully" to be found guilty of assault with a deadly weapon. Assuming arguendo Jacobson had raised that contention on appeal, we likely would have concluded that any such instructional error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
To the extent the trial court's instruction with CALCRIM No. 3428 effectively limited the jury's consideration of evidence of Jacobson's mental disease or disorder to the issue of whether he committed the charged torture offenses, the jury presumably followed the instruction and that evidence was not considered in determining whether he committed the assault offenses. Nevertheless, assuming arguendo that the court's instructions did not so limit the jury's consideration of evidence of Jacobson's mental disease or disorder and the jury therefore considered that evidence in deciding whether he committed the assault offenses, we conclude that evidence does not disprove he had the requisite general intent and knowledge for the charged offenses of assault with a deadly weapon. The jury could have concluded that, at the time of the incident, Jacobson was, at most, suffering from psychosis or other mental impairment resulting from his voluntary intoxication (e.g., abuse of methamphetamine or other substance). The jury was instructed that voluntary intoxication is not a defense to assault.
Bloomgarden testified that on January 31, 2007, he believed Jacobson was possibly suffering from a drug-induced psychosis. He was agitated, screaming, and banging on the walls. Bloomgarden concluded Jacobson was suffering from polysubstance dependence and an antisocial personality disorder. Although the symptoms of methamphetamine dependence could not, in most cases, be differentiated from paranoid schizophrenia because their symptoms appear the same, Bloomgarden nevertheless attributed Jacobson's psychotic behavior to substance abuse and malingering. Bloomgarden's testimony could support an inference by the jury that Jacobson's conduct during the incident a few days later was likewise attributable to voluntary substance abuse and/or malingering.
Pangalos's testimony provides additional evidence to support a finding that Jacobson's conduct during the incident was attributable to possible malingering. Pangalos, the bailiff, testified that on February 7, 2007, Jacobson appeared agitated, upset, and angry while in the courtroom. He was screaming and causing a commotion during his hearing. Immediately after Pangalos helped remove him from the courtroom, Jacobson's demeanor drastically changed and he became relaxed. He told Pangalos: "Okay. Okay, I'm done. I just want to get it on the record." Accordingly, assuming arguendo the jury considered evidence of Jacobson's mental disease or impairment in deciding whether he committed the assault offenses, we nevertheless conclude there is substantial evidence to support his convictions of those offenses. Although Jacobson cites extensive evidence that would have supported contrary findings by the jury, in so doing he misapplies the substantial evidence standard of review. (People v. Sanghera, supra, 139 Cal.App.4th at pp. 1573-1574.) Even had the jury found Jacobson was schizophrenic, paranoid, and/or delusional at the time of the incident, there nevertheless is substantial evidence to support its finding he acted willfully and with the requisite knowledge when he stabbed Caroline and Donald. There is substantial evidence to support his convictions for assault with a deadly weapon. (People v. Chatman, supra, 38 Cal.4th at p. 389.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: HALLER, Acting P. J.AARON, J.