Opinion
B106003 (Super. Ct. No. KA027420)
Filed April 27, 1998
APPEAL from a judgment of the Superior Court of Los Angeles County. Clarence A. Stromwall, Judge. (Retired judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.) Affirmed as modified.
Neoma Kenwood and Jennifer Cohn, under appointments by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Pamela C. Hamanaka, Supervising Deputy Attorney General, and Audree S. Wong, Deputy Attorney General, for Plaintiff and Respondent.
Defendant and appellant Alan R. Kidd appeals from a judgment following a jury trial in which he was convicted of second degree murder with use of a knife and found not to be insane, and two prior serious felony conviction allegations were found to be true. In the published portion of this opinion, we conclude the question of whether a prior felony conviction is a serious or violent felony within the meaning of Penal Code sections 667 and 1170.12 is for the trial court, not the jury, to determine. In the unpublished portion of this opinion, we address defendant's remaining contentions. He contends: the trial court erred when it refused to instruct the jury as to the lesser included offense of voluntary manslaughter; the sanity verdict must be reversed because of improper questioning of a defense witness by the trial court; the prosecutor engaged in misconduct during the sanity phase; and the trial court erred when it used the same two prior serious felony convictions to triple the minimum term of his life sentence and add ten years; and the sentence for the knife enhancement is one year not three years. We modify the judgment to reduce the weapon enhancement and otherwise affirm.
PROCEDURAL BACKGROUND
Defendant was charged by information with the murder of Lola Mary Ramirez in violation of Penal Code section 187, subdivision (a). It was further alleged defendant personally used a knife in the commission of the murder within the meaning of Penal Code section 12022, subdivision (b). It was also alleged defendant suffered two prior serious felony convictions within the meaning of Penal Code sections 1170.12 and 667, subdivision (a). Defendant pled not guilty and not guilty by reason of insanity. The jury convicted defendant as charged in the information, finding the murder to be of the second degree. The jury found defendant not to be insane. The jury found the two prior serious felony conviction allegations to be true. The trial court sentenced defendant to 45 years to life, consecutive to three years for the use of a knife, consecutive to ten years for the prior serious felony conviction enhancements. Defendant appealed.
FACTS
Ramirez lived in West Covina with her parents, sister, brother-in-law, nieces, and nephews. Her boyfriend was Albert Balderas. Ramirez and defendant played tennis and went to the gym together. Defendant became obsessed with Ramirez. Ramirez began to reduce her contact with defendant.
On May 15, 1995, Ramirez and defendant went to the gym and then ate lunch together at a restaurant. They both appeared to be more silent than usual. Defendant asked Ramirez if she still liked him. They returned to her residence. Between 1:30 and 2:13 p.m. on that afternoon, defendant stabbed Ramirez multiple times in her chest with a knife he had taken from her kitchen. Shortly after the stabbing, defendant and Ramirez were discovered by her parents. Ramirez was lying on the floor of the den. Defendant stated repeatedly that he loved Ramirez. He told her mother that he had put the knife away. Defendant complained of "voices." Ramirez died of the multiple stab wounds.
Defendant confessed to stabbing Ramirez, but indicated "voices" had compelled him to do so.
There was no defense presented at the guilt phase of the trial.
DISCUSSION
I. Voluntary Manslaughter Lesser Included Offense Instructions
Defense counsel requested heat of passion or sudden quarrel voluntary manslaughter instructions. The trial court refused the request on the ground no evidence supported such instructions.
On appeal, defendant contends he was entitled to voluntary manslaughter instructions on the theory that he killed Ramirez because she spurned his love and rejected him. He cites the following evidence supporting the instructions: Ramirez had recently begun to reduce her contact with him; at the restaurant on the day of the murder, they were not speaking to each other in their usual manner; defendant and Ramirez appeared to be angry and the two appeared to be arguing; and the den in which Ramirez had been stabbed was disordered, a couch was askew and the television remote control was in two pieces. In response, the prosecution notes that no loud words had been spoken at the restaurant and the "anger" was inferred by witnesses only from facial expressions.
We conclude no substantial evidence supports heat of passion voluntary manslaughter instructions. First, Ramirez's rejection of defendant's proffered love does not constitute the type of provocation which would mitigate murder to voluntary manslaughter. (Cf. People v. Dixon (1995) 32 Cal.App.4th 1547, 1556 [refusal to engage in sexual relations after being provided drugs]; People v. Hyde (1985) 166 Cal.App.3d 463, 472-473 [victim dated defendant's former girlfriend].) A woman's rejection of a man's proffered love, without more, does not constitute sufficient provocation to satisfy the objective or reasonable person element of heat of passion voluntary manslaughter. It would not cause ordinary men of average disposition to act rashly and without due reflection, and from passion rather than from judgment.
Second, there is no evidence defendant was under the actual influence of a strong passion at the time of the killing. ( People v. Dixon, supra, 32 Cal.App.4th at p. 1552.) There is no evidence that defendant's reason was actually obscured by passion at the time of the killing. ( Ibid.) The fact that the two argued quietly and appeared to be angry at lunch does not constitute substantial evidence of defendant's subjective state of mind at the time of the killing. The fact that in the course of a multiple stabbing, a couch was moved and a television remote control was dropped or knocked to the floor adds nothing to the issue of defendant's state of mind.
II. Sanity Phase
During the sanity phase of the trial, the defense presented the testimony of two psychiatrists, Dr. Jeffrey Peterson and Dr. Kaushal Sharma. Both psychiatrists opined that defendant had been legally insane at the time of the stabbing of Ramirez. Both opined that defendant had suffered for an extended period of time from paranoid schizophrenia, suffered from auditory hallucinations, and was taking psychotropic medication. Both opined that although defendant had known the nature and quality of his acts, he had not understood that his acts were wrong.
Defendant had suffered for an extended period from schizophrenia and had complained of hearing voices for almost 20 years. He had been hospitalized on more than one occasion, stabilized on medication, and released. In 1980, he ran through a plate glass door, assertedly under compulsion of the auditory hallucinations. In 1987, he attacked an unknown woman in a Laundromat with a tire iron and sexually assaulted her, again assertedly under compulsion of the auditory hallucinations. He pleaded guilty and was sentenced to state prison for two years, but was apparently housed in a psychiatric hospital. In 1989, he strangled a friend's mother and sexually assaulted her, once again assertedly under compulsion of the auditory hallucinations. At that time, defendant was examined by Dr. Sharma, who found that defendant suffered from paranoid schizophrenia and was legally insane. Nevertheless, defendant pleaded guilty and was sentenced to state prison for seven years, but was again apparently housed in a psychiatric hospital. Defendant was on parole when he committed the murder of Ramirez.
The prosecution presented a videotape of an interrogation of defendant by police officers four hours after the stabbing. In that videotaped statement, defendant confessed, requested to be executed, attributed the stabbing to his "voices," but admitted that he had known he was stabbing Ramirez and had known it was wrong.
A. Questioning of Dr. Sharma by the Trial Court
During the redirect examination of Dr. Sharma, the following occurred.
"The Court: Let me ask you a question or two.
[¶] At the time he walks through these glass doors and in response to these bad voices and makes a determination that he had this mental problem and so they take him to the hospital, obviously, and they examine him and the psychiatrist talked to him and at some point in time they decide that with medication we can release him back into society so he is no longer a danger to himself or others?
[¶] [Dr. Sharma]: Yes.
[¶] The Court: Time goes by. He sees the lady in the [L]aundromat. He goes in there and hits her over the head with a tire iron and he is arrested and he goes to trial. [¶] And they indicate that at the time of this striking over the head with the tire iron he did that as a result of these bad voices and as a result of these bad voices, even though he is culpable, he was the person that did the striking, because he is insane, he is not responsible, therefore we don't put him in jail, you put him in a hospital and the psychiatrists talk to him, this that and the other thing, there for a period of time.
[¶] After a period of time they say with medication we can release him on the street because he is no longer a danger to himself or others.
[¶] Times goes by.
[¶] He attacks a friend's mother, strangles her, goes to jail and to trial, tells them I heard these voices. Everybody believes because of the voices he is not responsible for his conduct because he is insane.
[¶] He doesn't go to jail, he is found not guilty by reason of insanity and he goes to the hospital and the psychiatrist examines him and at a point in time they realize with medication we can release him back into society because he is no longer a danger to himself or others.
[¶] That brings us to here where he has stabbed this young lady, what, seventeen times or whatever.
[¶] [Defense Counsel]: Eight times, fourteen if you count the cuts, Your Honor.
[¶] The Court: And he indicates that at the time he heard these bad voices and because of these bad voices he was — he did this, did not know what he was doing was wrong and therefore at the time he shouldn't go to jail because he is insane, so we put him in the hospital.
[¶] He would be in the hospital and at the hospital they say with medication and for a period of time they decide he is no longer a danger to himself or others and they release him again.
[¶] At what point does this train come to the station?
[¶] [Defense Counsel]: Your Honor, may I interrupt in the sense —
[¶] The Court: Well, let's get an answer.
[¶] [Dr. Sharma]: Okay.
[¶] If the facts are true, it is not my understanding that in `87 or `89 he did go to a hospital.
[¶] The Court: Well, I don't know.
[¶] [Dr. Sharma]: He went to prison, at least in `89, but if we keep on doing this, the train doesn't stop until he is dead.
[¶] The Court: That is what I'm curious about. At what point does the train reach the station?
[¶] [Dr. Sharma]: Yeah. I think if the history is true that he has every time in a sense been able to beat the system and end up in a hospital and get out, I think that would be very serious concern on my part, but my information is that he did not go to [the] hospital last time, so he did time in prison like anybody else.
[¶] The Court: Well, you indicated that you didn't believe he was faking because of the history, but would indicate that he heard these bad voices and there was a history of that and therefore it is not recently contrived. If it worked once, might it not work again?
[¶] [Dr. Sharma]: If we accept that it worked before, yes, but he didn't use insanity before. He didn't go to hospital before; he just did the time.
[¶] So does that increase his desire to make a claim to a psychiatrist, all psychiatrists, gee, voices made me do it? Yes, that is always a possibility and I have no way of knowing — knowing whether he is just saying it or this was true. I don't know.
[¶] The Court: Then at the time he went to jail, rather than to the hospital, they didn't believe the fact that the bad voices made him do these things and he was not responsible?
[¶] [Dr. Sharma]: I think there was a tactical reason why he decided to go, because from the documents I had he was afraid that he will do a lot more time in a hospital than he will do in prison.
[¶] The Court: Even though he would be legally innocent?
[¶] [Dr. Sharma]: Yes.
[¶] The Court: All right.
[¶] Q By [Defense Counsel]: Under NGI he would be legally innocent?
[¶] A [Dr. Sharma]: Yeah, legally innocent but —
[¶] Q [Defense Counsel]: To your knowledge this is the first time in his history that he has gone this far with a jury under a not guilty by reason of insanity, correct?
[¶] A [Dr. Sharma]: Yes.
[¶] Q [Defense Counsel]: So the system or the train works each time he is released without the benefit of long-term hospitalization?
A [Dr. Sharma]: Yeah, but he is not released by hospitals.
[¶] Q [Defense Counsel]: No.
[¶] A [Dr. Sharma]: He is released by the prison system or jail system.
[¶] Q [Defense Counsel]: And this way he would not be going directly to a prison situation?
[¶] A [Dr. Sharma]: If the jury finds him to be insane, he would not be going to a prison.
[¶] Q [Defense Counsel]: He would not go home tomorrow?
[¶] A [Dr. Sharma]: Not unless the judge would let him out.
[¶] The Court: If he were legally insane, if not for the statutes I suppose conceivably I could. The statutes require me to do other things, however.
[¶] Q [Defense Counsel]: By statute he is going to live a very long time in a hospital?
[¶] The Court: `Long time' is somewhat subjective.
[¶] [Dr. Sharma]: But yes, he would be going to a hospital for criminally insane.
[¶] The Court: A minimum of 90 days?
[¶] [Dr. Sharma]: Minimum of 90 days, Your Honor.
[¶] [Defense Counsel]: Maximum, Your Honor?
[¶] The Court: There is no maximum.
[¶] Well, the maximum my guess is the length of the offense were he convicted without —
[¶] [Defense Counsel]: And this is a life offense for the record, Your Honor.
[¶] The Court: Well —
[¶] [Defense Counsel]: May I proceed, Your Honor?
[¶] The Court: — That depends on the parole board and prison system which of course is not something that the jury should conjecture or speculate about.
[¶] Q By [Defense Counsel]: But Dr. Sharma, to your knowledge and the recent history of him, this is the first time he has gone this far?
[¶] A [Dr. Sharma]: That is my understanding.
[¶] Q [Defense Counsel]: Through the legal system?
[¶] A [Dr. Sharma]: Yes.
[¶] Q [Defense Counsel]: Because certain people have certain psychological defects the system is geared or designed to have this procedure?
[¶] A [Dr. Sharma]: Yes.
[¶] Q [Defense Counsel]: To decide whether they are criminally insane?
[¶] A [Dr. Sharma]: Yes.
[¶] Q [Defense Counsel]: Versus shortcutting the system and making a deal or going to prison?
[¶] A [Dr. Sharma]: Yes.
[¶] Q [Defense Counsel]: With that information in mind, would that change your opinion to any degree as to whether he was sane on May 15 of 1995?
[¶] A [Dr. Sharma]: The —
[¶] Q [Defense Counsel]: At the time of the stabbing?
[¶] A [Dr. Sharma]: Given this information, no, it does not change my opinion, but if you were to give me information that he has been previously able to shortchange the system and get out much quicker, yes, I would be very, very, very suspicious of somebody making claims of voices asked me to do it, absolutely.
[¶] Q [Defense Counsel]: That reminds me of the Jack Nichol[son] movie `One Flew Over the [Cuckoo]'s Nest' where he tried to hide in a mental institution?
[¶] A [Dr. Sharma]: Yes.
[¶] Q [Defense Counsel]: Is that what you are referring to, people that will malinger or fake the situation?
[¶] A [Dr. Sharma]: Yeah. Many people in the legal system I see on an almost daily basis who have nothing wrong with them mentally but will go to great length to act crazy so they can, in their opinion, beat the system.
[¶] Q [Defense Counsel]: Do you see any of that in [defendant's] scenario or this case?
[¶] A [Dr. Sharma]: I see nothing to support that, but as I said before, I have no way of knowing whether on this particular day at this time he heard voices or not. I have absolutely no way of knowing that."
Following the examination of Dr. Sharma and out of the presence of the jury, defendant moved for a mistrial on the basis of the trial court's questioning of Dr. Sharma. The following occurred. "[Defense Counsel]: There is going to be a defense motion for a mistrial based on the statement of his Honor to the jury in terms of what happened after the process [defendant] goes through as to whether he is going to be released or not. [¶] I think the jurors already run the risk of worrying about whether my client is going to be released to the street. I made an effort to try and clear that up in questioning the doctor, but I think the hypothetical that the court presented, including [defendant's] history, as to when the train stops, leaves them with the unfair impression that — [¶] The Court: I didn't say when it stops. I said when does it reach the station? [¶] [Defense Counsel]: I don't mean to misquote you. In some respects I respect your statement and it might even help our defense. [¶] The Court: Well, all I was doing is following up on the comments that you made and then I also indicated to them that they are not to concern themselves with the ultimate penalty, punishment or whatever at the conclusion of the case, and there is a jury instruction with reference to that also. [¶] [Defense Counsel]: And to protect the record, motion for a mistrial. [¶] The Court: All right. [¶] The motion for a mistrial is denied."
The trial court instructed the jury as to the consequences of an insanity verdict as follows: "A verdict of not guilty by reason of insanity does not mean the defendant will be released from custody. Instead he will remain in confinement while the courts determine whether he has fully recovered his sanity. If he has not, he will be placed in a hospital for the mentally disordered or other facility or in out-patient treatment, depending upon the seriousness of his present mental illness. [¶] Moreover, he cannot be removed from that placement unless and until the court determines and finds the defendant's sanity has been fully restored in accordance with the law of California, or until the defendant has been confined for a period equal to the maximum period of imprisonment which could have been imposed had he been found guilty. [¶] So that you will have no misunderstanding relating to a verdict of not guilty by reason of insanity, you have been informed as to the general scheme of our mental health laws relating to a defendant, insane at the time of his crimes. What happens to the defendant under these laws is not to be considered by you in determining whether the defendant was sane or not at the time he committed this crime. Do not speculate as to if or when the defendant will be found sane. [¶] You are not to decide whether the defendant is now sane. You are to decide only whether the defendant was sane at the time he committed his crime. If upon consideration of the evidence, you believe the defendant was insane at the time he committed his crime, you must assume that those officials charged with the operation of our mental health system will perform their duty in a correct and responsible manner, and that they will not release this defendant unless he can be safely returned into society. [¶] It is a violation of your duty as jurors if you find the defendant sane at the time he committed his offense because of a doubt that the Department of Mental Health or the courts will properly carry out their responsibilities."
On appeal, defendant contends the sanity verdict must be reversed because the questioning by the trial court improperly suggested that defendant would be released into society if the jury returned a verdict of insanity. Defendant argues that the questioning elicited improper testimony concerning the consequences of an insanity verdict and inaccurately characterized defendant's criminal history. We conclude that defendant did not timely object to the questioning concerning the consequences of an insanity verdict and did not object at any time to the mischaracterization of defendant's criminal history. Therefore, the objections have been waived. We conclude further that the jury instructions informed the jury of the consequences of an insanity verdict and thus the testimony elicited by the trial court on this subject was not prejudicial.
During the questioning by the trial court, defense counsel never interposed an objection. On one occasion, he interposed a correction as to the number of knife wounds inflicted on the victim. On another occasion, he attempted to interrupt the trial court. The trial court asked defense counsel to wait until Dr. Sharma had answered. Defense counsel did not pursue the objection. Thus, any objection to the trial court's questions was waived. ( People v. Sanders (1995) 11 Cal.4th 475, 530-531.) Nothing in the record indicates that the trial court may not have reconsidered its questions if defense counsel had objected for the reasons stated on appeal. (Cf. Evid. Code, § 353.) Nor is there any indication that a timely objection and admonishment would not have cured any prejudice. Indeed, the trial court admonished the jurors twice that they were not to consider the consequences of an insanity verdict, once at the conclusion of the questioning and again during instructions. After the examination of Dr. Sharma and out of the presence of the jury, defense counsel moved for a mistrial on the ground the trial court had informed the jury as to the consequences of an insanity verdict. This motion for a mistrial could not cure the absence of a timely objection. ( People v. Sanders, supra, 11 Cal.4th at p. 532.) Moreover, even in the motion for a mistrial, defense counsel never objected to the mischaracterization of the criminal record. Thus, any objection to the trial court's questioning of Dr. Sharma has not been preserved for appeal.
On the merits, we are also not persuaded. A trial court has the right to examine witnesses. (Evid. Code, § 775; People v. Sanders, supra, 11 Cal.4th at pp. 531-532.) The trial court stated in its hypothetical that defendant had gone to the hospital after each of his prior crimes, not to prison. This was not technically accurate. However, defendant was in fact housed at a prison psychiatric hospital while he was serving his prison sentences. In any event, the expert did not agree with the trial court's characterization of defendant's criminal record, the trial court admitted that it wasn't sure and the record is crystal clear that defendant had never previously been found not guilty by reason of insanity, but in fact had pleaded guilty and been sentenced to state prison on the two prior felony offenses. Thus, any error was harmless. (Cf. People v. Flores (1971) 17 Cal.App.3d 579, 588.)
As to the consequences of an insanity verdict, it was defense counsel who first raised this issue with Dr. Sharma. Defense counsel asked Dr. Sharma whether defendant would go to prison if the jury found him to be insane. Dr. Sharma responded in the negative. Defense counsel then asked Dr. Sharma if defendant would be released immediately. Dr. Sharma responded that he would not be released immediately unless the trial court released him. The trial court interjected that although it was conceivable it could release defendant immediately, it was required by law to do otherwise. Defense counsel then asked whether defendant would by statute be hospitalized for "a very long time." At this point, the trial court elicited testimony which clarified that defendant could be hospitalized for any period between 90 days and life. The trial court advised the jury not to speculate about the potential length of defendant's hospitalization. The jury is presumed to have followed the trial court's instructions and admonitions. ( People v. Frank (1990) 51 Cal.3d 718, 728.) Defense counsel conceded in the motion for mistrial that this information might even have been beneficial to the defense.
To the extent the trial court and Dr. Sharma were referring to restoration of sanity proceedings under Penal Code section 1026.2 after a defendant has been committed to a state hospital, the minimum period of confinement has been increased to 180 days. (Pen. Code, § 1026.2, subd. (d).) However, if the trial court finds that a defendant's sanity has been fully recovered at the time of the sentencing proceedings, the defendant may be immediately released. (Pen. Code, § 1026, subd. (a).)
In any event, the jury was instructed in the language of CALJIC No. 4.01 as to the consequences of an insanity verdict. This instruction informed the jury of all the consequences elicited by the trial court's questions, except for the fact that there was a minimum term. The existence of a mandatory minimum term was not prejudicial to the defense but rather confirmed defense counsel's point that defendant would not be immediately released into the community. (Cf. People v. Moore (1985) 166 Cal.App.3d 540, 556; People v. Dennis (1985) 169 Cal.App.3d 1135, 1141, fn. 14.) The jury was also instructed in the language of CALJIC No. 1.02 that questions were not evidence. The trial court asked questions of witnesses throughout the proceedings, so there was no likelihood that the jurors would give undue weight to these particular questions.
For the first time in his reply brief, defendant contends counsel was ineffective for failing to timely and properly object to the trial court's questioning of Dr. Sharma. Contentions may not be raised for the first time in a reply brief. ( Board of Administration v. Wilson (1997) 52 Cal.App.4th 1109, 1144.) Moreover, the record suggests a tactical reason for the failure to object — letting the jury know that defendant would not be released immediately if it returned an insanity verdict.
B. Prosecutorial Misconduct
During the cross-examination of Dr. Peterson, the prosecutor questioned the expert about an opinion of a Dr. Missy Nadeau concluding defendant was not insane. This testimony was elicited over defense objection. The objection was overruled and the admission of the evidence was not limited in any way.
During the opening argument of the defense, defense counsel noted that Dr. Nadeau had concluded defendant was legally sane, but the prosecution had failed to call her as a witness. During the prosecutor's argument, the following occurred. "Then we note disagreement by the psychiatrists. Dr. Sharma and Dr. Peterson declared, in their opinion, the defendant was legally insane. We find out that Dr. Peterson is a student of Dr. Sharma. We find out that Dr. Peterson also reviews Dr. Sharma's conclusions, but we also learn of Dr. Nadeau who interviews the defendant after Dr. Sharma and before Dr. Peterson. We learn that Dr. Nadeau's conclusions disagree with Dr. Peterson's and [Dr.] Sharma's conclusion[s], and the disagreement pertains to the defendant's ability to distinguish right from wrong. [¶] We can reasonably infer that since Dr. Peterson was provided all materials by the defense that Dr. Peterson's opinions were sought by the defense because the defense provides Dr. Peterson with her report. [¶] We reasonably infer also that since Dr. Nadeau disagrees with the two other psychiatrists sought by the defense and called by the defense's witnesses, that the defense does not want you to hear Dr. Nadeau's testimony. [¶] Again the defense seeks to present now, you the jury, with selective information just like it did, say, in the case of Dr. Sharma who was given selective police reports, not all the police reports. [¶] We also learn of Dr. Kim who tells Dr. Peterson the defendant seemed very content, the defendant had a routine schedule, but most importantly, the defendant claimed to hear voices that were usually meaningless, yet we don't hear from Dr. Kim. [¶] And remember who has the burden of proof. The prosecution, as [defense counsel] said during the guilt phase, [defense counsel] could have sat there and read the paper and smiled to you. In this phase the prosecution can just sit here, look at you and smile at you because the prosecution no longer has the burden at this point in this phase. The defense does. The defense has to present the case to you, and it is rather interesting that you are being presented only selective information yet you have Dr. Kim, you have Dr. Nadeau, that is not being presented to you. [¶] Do you get the impression you are only getting one side of the story? [¶] But I remind you, you can still consider all the evidence presented in the guilt phase to help you make a determination, not just strictly what was presented to you during the insanity phase. [¶] The defense has raised the issue, well, the prosecution could have brought you their own psychiatrist to testify the defendant was sane and given you the opposing view. [¶] Understand several things here. The People have no burden of proof here. We don't have to prove his sanity. The defense has to prove by a preponderance of the evidence whether he was insane at the time of the commission of the crime. [¶] In particular, they have to prove by a preponderance of the evidence that at the time the defendant was stabbing Lola Ramirez that he was incapable of knowing right from wrong. Let's really narrow the focus here as to what it is they have the burden of proof. [¶] In essence, why call psychiatrists, say, if you are in my position, when it is quite apparent that there is a disagreement among the psychiatrists who evaluated the defendant? [¶] Also understand that there is privileges, there is evidentiary privileges, there is rules here that limit, say, the prosecution from calling Dr. Nadeau or calling Dr. Kim. Why? Because these are psychiatrists who have seen the defendant and hence there is a privilege involved here. [¶] But no, you don't hear from them. You only hear from those who are going to give you one perspective. [¶] Again who has the burden of proof and who has presented you with that type of proof or limited proof? [¶] Also, do you get the impression that what was presented to you is that psychiatry is not a precise science and there is a potential for hit and miss here in the evaluation, especially since there appears to be disagreement regarding [D]r. Kim, and whether he was sane or not at the time of the commission of the crime? [¶] You know, the psychiatrists, Dr. Sharma and Dr. Peterson, by their own statements were not — as they told you, they do not have a monopoly on detecting deception for malingering or dishonesty." The defense interposed no objection.
Dr. Kim was defendant's treating psychiatrist. He was not called as a witness in the trial.
On appeal, defendant contends that this portion of the prosecutor's argument constituted misconduct because the evidence of Dr. Nadeau's opinion was admissible only to impeach Dr. Peterson's opinion and not for its truth. However, defendant cannot raise this issue for the first time on appeal. By failing to object, the prosecutorial misconduct contention has been waived. ( People v. Cain (1995) 10 Cal.4th 1, 48.) Moreover, the argument was fair commentary on the evidence which had not been admitted by the trial court for a limited purpose. ( Id. at p. 50.) Moreover, since the prosecutor did not engage in misconduct, defense counsel was not ineffective for failing to object to the misconduct. ( Id. at p. 48.)
III. Dual Use of Prior Serious Felony Convictions
Defendant contends the trial court erred when it used the same two prior serious felony convictions to triple his second degree murder sentence and add two five-year enhancements. The Supreme Court has decided this issue adversely to defendant. ( People v. Dotson (1997) 16 Cal.4th 547, 551-560.)
IV. Penal Code Section 12022, subdivision (b) Enhancement
The jury found true an allegation that defendant personally used a knife in the commission of the murder within the meaning of Penal Code section 12022, subdivision (b). The trial court imposed a three-year enhancement for the use of a knife. However, the Penal Code section 12022, subdivision (b) enhancement for offenses other than carjacking or attempted carjacking is one year. The abstract of judgment must be amended.
V. Prior Serious Felony Conviction Allegation
In 1988, defendant was convicted of a felony violation of Penal Code section 245, subdivision (a)(1), assault with a deadly weapon or by means of force likely to cause great bodily injury. The abstract of judgment for the 1988 conviction indicates that the deadly weapon was a tire iron. The jury found the prior serious felony conviction allegation, based on the 1988 assault conviction, to be true. In sentencing defendant, the trial court used the 1988 assault conviction and another prior serious felony conviction to triple the minimum 15-year term of his life sentence and add ten years to the sentence.
Defendant contends the evidence is insufficient to establish that the 1988 assault was a serious or violent felony, because an assault is a serious or violent felony only if the defendant personally inflicts great bodily injury on the victim (Pen. Code, §§ 667.5, subd. (c)(8), 667, subd. (d)) or personally uses a deadly or dangerous weapon (Pen. Code, §§ 1192.7, subd. (c)(23), 667, subd. (d)). Defendant argues that there is no evidence great bodily injury was inflicted on the victim by anyone. Defendant argues further that there is no evidence defendant personally used the tire iron, but rather may have been only an aider and abettor. (See People v. Armendariz (1985) 174 Cal.App.3d 674, 684-686.) Defendant concedes that he testified during the sanity phase of the trial that he personally used the tire iron on the victim in the 1988 case. He contends, however, that the jury was instructed to disregard the evidence presented in connection with the murder conviction and therefore his testimony cannot support the true finding.
The jury was instructed in the language of CALJIC No. 17.26 in pertinent part as follows: "In considering this question, you must not be influenced by the previous conviction of Penal Code section 187 on which you have already returned a verdict or any evidence received in support of that allegation."
Defendant's contention would have some merit if we were to agree that the question of whether a prior felony conviction is a serious or violent felony is one for the jury. We, however, are not in accord with this proposition. The Supreme Court has never decided this precise question, but rather has recently indicated that it continues to be an open question. ( People v. Woodell (1998) 17 Cal.4th 448, 460, as mod. Apr. 1, 1998 [98 Daily Journal D.A.R. 3325] ["(Here, the issue was presented to the jury. We express no view regarding the respective roles of the court and jury. [See Pen. Code, § 1025.])"].)
"It is clear that the federal Constitution does not confer a right to have a jury determine [any] aspect of a sentence enhancement imposed upon a defendant for previously having been convicted of a serious felony . . . . In general, `there is no Sixth Amendment right to jury sentencing, even where the sentence turns on specific findings of fact.' " ( People v. Wiley (1995) 9 Cal.4th 580, 585.) "Neither does the California Constitution grant a right to have a jury determine the truth of prior conviction allegations that relate to sentencing." ( Id. at p. 586.) "Thus, the ability of courts to make factual findings in conjunction with the performance of their sentencing functions never has been questioned." ( Ibid.) "Although there is no constitutional right to have a jury determine factual issues relating to prior convictions alleged for purposes of sentence enhancement, California is one of a minority of states that, by statute, has granted defendants the right to have a jury determine the truth of such prior conviction allegations. [Citation.] The applicable statutes, however, are limited in nature . . . ." ( Id. at p. 589.) Thus, a defendant does not have the right to have a jury determine whether charges were brought and tried separately within the meaning of Penal Code section 667, subdivision (a). ( Ibid.) Nor does a defendant have the right to have a jury determine whether the defendant is the person who has suffered the prior conviction. (Pen. Code, § 1025, subd. (c).)
Penal Code section 1025 was amended effective January 1, 1988, to read in full as follows: "(a) When a defendant who is charged in the accusatory pleading with having suffered a prior conviction pleads either guilty or not guilty of the offense charged against him or her, he or she shall be asked whether he or she has suffered the prior conviction. If the defendant enters an admission, his or her answer shall be entered in the minutes of the court, and shall, unless withdrawn by consent of the court, be conclusive of the fact of his or her having suffered the prior conviction in all subsequent proceedings. If the defendant enters a denial, his or her answer shall be entered in the minutes of the court. The refusal of the defendant to answer is equivalent to a denial that he or she has suffered the prior conviction. [¶] (b) Except as provided in subdivision (c), the question of whether or not the defendant has suffered the prior conviction shall be tried by the jury that tries the issue upon the plea of not guilty, or in the case of a plea of guilty or nolo contendere, by a jury impaneled for that purpose, or by the court if a jury is waived. [¶] (c) Notwithstanding the provisions of subdivision (b), the question of whether the defendant is the person who has suffered the prior conviction shall be tried by the court without a jury. [¶] (d) Subdivision (c) shall not apply to prior convictions alleged pursuant to Section 190.2 or to prior convictions alleged as an element of a charged offense. [¶] (e) If the defendant pleads not guilty, and answers that he or she has suffered the prior conviction, the charge of the prior conviction shall neither be read to the jury nor alluded to during trial, except as otherwise provided by law. [¶] (f) Nothing in this section alters existing law regarding the use of prior convictions at trial."
"[Penal Code s]ection 1025 provides that if a defendant denies having suffered an alleged prior conviction, `the question whether or not he has suffered such previous conviction must be tried by the jury which tries the issue upon the plea of not guilty . . . .' Similarly, [Penal Code] section 1158 states that if a defendant is found guilty of an offense charged in an accusatory pleading that also alleges that the defendant suffered a prior conviction, `the jury, or the judge if a jury trial is waived, must . . . find whether or not he has suffered such previous conviction.' By their terms, [Penal Code] sections 1025 and 1158 grant a defendant the right to have the jury determine only whether he or she `suffered' the alleged prior conviction . . . ." ( People v. Wiley, supra, 9 Cal.4th at p. 589.)
Questions concerning prior conviction sentence enhancements that are largely legal in nature and depend upon the interpretation of complex and detailed provisions of California criminal procedure are properly matters for the trial court to determine. ( People v. Wiley, supra, 9 Cal. 4th at p. 590.) Questions concerning whether alleged prior felony convictions qualify as serious or violent felonies within the meaning of Penal Code sections 667 and 1170.12 are just such questions, legal in nature and dependent on the interpretation of complex and detailed provisions of California criminal procedure. In pertinent part, Penal Code section 667, subdivision (c) provides: "[I]f a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior felony convictions as defined in subdivision (d)," the court shall sentence the defendant in the manner prescribed. Penal Code section 1170.12, subdivision (a) refers to its own subdivision (b) and is substantially the same. In pertinent part, Penal Code section 667, subdivision (d) defines "a prior conviction of a felony" as follows: "(1) Any offense defined in subdivision (c) of Section 667.5 as a violent felony or any offense defined in subdivision (c) of Section 1192.7 as a serious felony in this state." Penal Code section 1170.12, subdivision (b) is virtually identical. Penal Code sections 667.5, subdivision (c) and 1192.7, subdivision (c) are themselves exceedingly complex provisions. They enumerate a large number of specifically identified offenses. Complicating the analysis even further, is the fact that some offenses, while not specifically identified as violent or serious felonies, become such as a result of the manner in which they are committed. For example, a prior felony conviction for violation of Penal Code section 245, subdivision (a) is not a specifically identified serious or violent felony, but it becomes so when the defendant personally inflicts great bodily harm within the meaning of Penal Code section 12022.7 or 12022.9, personally uses a firearm within the meaning of Penal Code section 12022.5 or 12022.55, or personally uses a dangerous or deadly weapon. (Pen. Code, §§ 667.5, subd. (c)(8), 1192.7, subds. (c)(8) and (c)(23).)
A jury cannot reasonably be expected to wade through this morass of Penal Code sections. Accordingly, we hold that whether prior felony convictions alleged under Penal Code section 667 or 1170.12 are serious or violent felonies is to be determined by the trial court and not the jury. The jury is to determine whether the defendant suffered the prior convictions.
Our holding is supported by the Supreme Court's citation in Wiley to People v. Leever (1985) 173 Cal.App.3d 853. ( People v. Wiley, supra, 9 Cal.4th at p. 591.) The Supreme Court noted that "in Leever, the jury's role was limited to finding true the allegations that defendant had suffered the prior convictions. It was the trial court that determined whether those prior convictions qualified as serious felonies within the meaning of [Penal Code] section 667[, subdivision] (a). [Citation.] The Court of Appeal in Leever did not suggest that the jury, rather than the court, should have determined whether the prior convictions constituted serious felonies." ( Ibid.)
We note that our colleagues in Division Six of this district, in People v. Winslow (1995) 40 Cal.App.4th 680, discussed at length the requisite jury instructions concerning whether the alleged conviction was a serious or violent felony. However, in Winslow, the question had been presented to the jury and the opinion was concerned with the adequacy of the instructions. Thus, the issue of whether the question is one for the court or one for the jury was not squarely before the court. To the extent, Winslow suggests that the jury must decide this issue, we respectfully disagree.
In this case, the trial court impliedly found defendant's 1988 conviction for a violation of Penal Code section 245, subdivision (a)(1) to be a serious felony as defined in Penal Code section 1192.7, subdivision (c)(23), personal use of a dangerous or deadly weapon. This implied finding is supported by defendant's testimony that he personally used the tire iron on the victim. ( People v. Harris (1992) 8 Cal.App.4th 104, 106-110.) We conclude substantial evidence supports the prior serious felony conviction true finding for the 1988 assault conviction.
Even were the jury required to find personal use of a dangerous or deadly weapon in connection with the 1988 assault conviction, their failure to do so was harmless in light of defendant's testimony admitting such personal use. (Cf. People v. Winslow, supra, 40 Cal.App.4th at p. 689.) If the jury were required to make such a finding, they also would have been permitted to consider defendant's testimony for this purpose.
DISPOSITION
The judgment is modified by reducing the weapon enhancement from three years to one year. In all other respects, the judgment is affirmed.
Appellant's petition for rehearing is denied. This modification constitutes a change in the judgment.
CERTIFIED FOR PARTIAL PUBLICATION
Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of the Facts and parts I through III of the Discussion.
_____________________________ GRIGNON, J.
We concur:
_____________________________ TURNER, P.J.
_____________________________ GODOY PEREZ, J.