Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF04010
SCOTLAND, P.J.
Defendant Scott Krause, charged with first degree murder with special circumstances and various other offenses, pled guilty to second degree murder with the personal use of a deadly weapon (a truck). The negotiated plea was conditioned on his receiving a jury trial on sanity, being sentenced to no more than 16 years to life in state prison, and preserving appellate review of his Sixth Amendment right to the effective assistance of counsel. The jury found defendant sane, and the court imposed the maximum sentence allowed by the plea agreement.
On appeal, defendant contends that the trial court committed prejudicial error in instructing jurors on the defense of insanity and that his conviction also must be reversed because of his trial counsel’s potential and/or actual conflict of interest. We shall affirm the judgment.
FACTS
On January 6, 2004, defendant, who was under the influence of methamphetamine and claimed he was being pursued by “hemodrones,” drove a stolen truck at a high rate of speed and crashed into a United Parcel Service (UPS) delivery truck, killing the driver, Drew Reynolds. The following events led up to this tragic incident:
Shortly before midnight on January 5, 2004, defendant arrived unannounced at the house of his ex-wife, Tracy Krause, because he had a “gut feeling” that she and their children had been hurt. Defendant, who had been using methamphetamine for a few days, described his intoxication level as “off the charts,” and he had not slept for many days. Telling Tracy that he had fought with his girlfriend, Marlena Brennan, he asked if he could stay the night. Tracy refused because defendant smelled like he had not showered in several days, talked rapidly, was “gesticulating wildly,” had dilated pupils, and looked “really high.”
Defendant did not tell Tracy about his concerns for her safety because he believed that if he did, the danger would materialize. He felt he had to leave or the “hemodrones” would burn down the house. According to defendant, hemodrones were “humanistic” or “shadow-like” aliens that had invaded the world and were involved in the Holocaust. They were a “shadowy evil demonic presence that basically wanted to kill him and serve him for dinner.”
Defendant left Tracy’s house and spent the night in a vacant house where he “chased shadows for a good part of the night.” The next morning, he returned to the apartment he shared with Brennan, told her he wanted to end the relationship, and said he was leaving to get away from the hemodrones. He packed his bags and walked to a nearby gas station to see a woman named Linda Goldsmith, whom he thought could help him leave town.
When defendant asked Goldsmith if she knew where he could buy some methamphetamine, she reminded him he had recently completed a rehabilitation program. According to Goldsmith, defendant was under the influence of a stimulant, and she observed him approach two men in the parking lot when he left. Defendant bought some methamphetamine.
Defendant became concerned that the hemodrones were coming after him and he was going to die. He returned to his apartment and, when Brennan arrived, she was a “whirlwind of sorts” and was talking to “others,” who were not present. Defendant threw a hutch through a window where he thought “they were looking.” He left via the apartment window because “there was something there at the door.” He walked to a cemetery to get away from the “imminent danger” and saw some cars that might have been police cars arriving at the apartment. Defendant believed that Brennan had been shot because she told him about the hemodrones, and that the police were acting on behalf of the hemodrones. He thought he heard Brennan being tortured by the hemodrones, and he heard voices telling him to run because it was not safe.
Defendant decided to walk to Goldsmith’s home and came upon Betty Brewer’s house along the way. He entered the home to obtain the keys for the car in the carport. Brewer, who was startled to see him, screamed. Defendant felt “totally uninvited at that point, so [he] left.” He walked to a well-drilling company, where he believed that he had a friendly “relationship” because someone had let him borrow tools to fix his car “as much as a couple years” ago. Based on this relationship, defendant thought that he could “borrow” their diesel truck. A man came out of the office while defendant was trying to open the truck door, and refused to let defendant take the truck. A short time later, Tina Harrison drove up in a white truck and stopped to refuel. Defendant climbed in the passenger side door, causing Harrison to scream and run away. Defendant thought that she screamed because of “something that was engulfing [him]” and she wanted him to take the truck “[t]o get the evil away.”
Michael Power, who was nearby when defendant stole Harrison’s truck, called 9-1-1 and followed defendant. The truck was weaving and jerking in and out of its lane, was traveling faster than the speed of traffic, and the passenger door was open. Defendant drove rapidly through an intersection into the lane of oncoming traffic. Power observed cars taking evasive measures to avoid colliding with the truck.
Defendant rammed into Drew Reynolds’s UPS truck, causing it to spin out of control and strike a utility pole. Reynolds suffered massive injuries and died at the scene.
Witnesses described defendant as “wildly angry,” “screaming and ranting,” and “very agitated and belligerent.” He cursed at responding law enforcement officers, repeatedly telling them to kill him or shoot him because he wanted to die. The officers restrained defendant and handcuffed him when he tried to leave. They held his legs after he kicked a firefighter. According to defendant, the restraints “coincided completely with [hemodrones] putting [him] in a barrel.” He asked to be shot because he “wasn’t even convinced that [he] could die at that point, because the impact seemed so tremendous that [he] wasn’t convinced even if they did shoot [him] that [he] wouldn’t be digested for eternity.”
About an hour after the crash, defendant’s blood contained .06 milligrams per liter of amphetamine and .29 milligrams per liter of methamphetamine. Defendant admitted that, between December 31, 2003, and the date of the collision, he injected methamphetamine twice a day and had not slept for five days prior to the accident. The parties stipulated that binge methamphetamine use can result in extended periods of sleep disruption or sleep deprivation, which can precipitate a delusional or psychotic state, and that “[t]here is a significantly greater risk if the user has an underlying psychopathology such as schizophrenia or other mental illness.” An expert on forensic toxicology opined that at the time of the collision, defendant’s driving was impaired by his methamphetamine use “irrespective of any underlying psychopathology or even mental illness.”
Defendant, who stated that he had used drugs his whole life, described his drug use as “cocaine in the 80[’]s, crank in the 90’s, and injecting in the new millennium.” His former wife, Tracy, filed for divorce in August 2001 after she learned he was using methamphetamine and he began acting violently. He had been committed for mental observation under Welfare and Institutions Code section 5150 during their marriage. A doctor prescribed Lithium for defendant, which is typically used to treat bipolar disorder. But the medication made defendant feel “[b]ogged down.”
The Nevada County Family Court Mediation Department referred defendant to Dr. Kevin Dugan after concerns arose about defendant’s mental status during the mediation of a parenting plan between defendant and Tracy. Dr. Dugan suspected defendant had “bipolar one disorder with psychotic features.” He was concerned that defendant may have been “self-medicating” with methamphetamine in that he appeared under the influence of methamphetamine at the time of the interview. Two months later, defendant’s behavior had improved, and Dugan believed this was because defendant no longer used drugs, having begun substance abuse counseling two weeks earlier. Dugan still had the impression that defendant might be bipolar with psychotic features, but could not make a specific diagnosis. He concluded defendant also suffered from substance dependency.
In late 2002, defendant moved in with Brennan, a schizophrenic, and continued to use drugs. Brennan believed in hemodrones, her name for aliens, and defendant came to believe in them too while trying to help Brennan deal with them. He found their presence extremely disturbing.
In February 2003, defendant went to stay with his uncle. When defendant arrived, he looked like a disheveled Howard Hughes. He told his uncle that he “loved speed and wouldn’t kid [him] by saying he was going to quit.” Defendant stated he had been diagnosed as bipolar, “but it wasn’t true.” Defendant left after one week.
In March 2003, defendant was arrested for being under the influence of a controlled substance, which resulted in his referral to a Proposition 36 drug treatment program. He told Jan Spreier, a mental health therapist, that he had used methamphetamine 28 out of the prior 30 days. Spreier examined defendant and concluded that he suffered from amphetamine dependence. She acknowledged that defendant exhibited serious anxiety and racing thoughts, but she would not have referred him to a Proposition 36 treatment program if he had serious mental health issues.
By the time that defendant left the drug treatment program in November 2003, he had detoxified and his thought processes were greatly improved. Unfortunately, his sobriety did not last, as is evidenced by his methamphetamine binge prior to the collision.
Three mental health experts testified concerning defendant’s sanity, or lack thereof, at the time of the offense.
Dr. Donald Stembridge met with defendant three times between January 15 and February 11, 2004, regarding defendant’s mental competency. Initially, Dr. Stembridge opined defendant was not competent to stand trial, but altered his opinion as defendant’s thought processes improved over time and “many of the psychotic symptoms were clearing.” As part of the subsequent sanity hearing, Dr. Stembridge interviewed defendant several times between May and October 2004 and administered the MMPI-2. Although defendant’s responses to the test were somewhat exaggerated, Dr. Stembridge ultimately concluded defendant suffered from an underlying pre-existing schizophrenia mental disorder of a paranoid type, which was enhanced or exacerbated by his methamphetamine abuse.
According to Dr. Stembridge, the combination of defendant’s schizophrenia and methamphetamine use produced a blatant psychotic episode on the date of the collision. Defendant had been trying to flee from hemodrones, which he thought were trying to kill him, and he was incapable of evaluating his delusional misperception of the situation. Defendant’s “blatant psychosis” rendered him incapable of knowing or understanding the nature and quality of his acts at the time of the collision, and incapable of knowing the difference between right and wrong.
Dr. Shawn Johnston, who had previously evaluated defendant concerning his ability to provide proper parenting for defendant’s children, also performed competency and sanity evaluations. During the parenting evaluation in October 2002, having observed defendant exhibit signs of paranoid delusions of persecution, Dr. Johnston opined defendant “might” suffer from a delusional disorder or even paranoid schizophrenia. Dr. Johnston was also concerned about defendant’s methamphetamine use. As a result of the competency evaluation in February 2004, Dr. Johnston opined defendant was suffering from the same disorder observed in 2002, but that it had worsened.
After the sanity evaluation in September 2004, Dr. Johnston opined defendant most likely suffered from paranoid schizophrenia at the time of the accident, with his abuse of methamphetamine exacerbating his mental illness. He explained that “without the use of methamphetamine, [defendant is] mentally ill, and with the use of methamphetamine he’s terribly mentally ill.” But he could not “absolutely guarantee” defendant’s problems were not solely the result of drug abuse. Dr. Johnston also acknowledged the results of the MMPI he administered to defendant indicated that defendant engaged in “symptom magnification or exaggeration.” Nevertheless, he opined that defendant did not understand the nature and quality of his acts when he committed the crimes and believed that he was morally right in violating traffic laws in an attempt to elude and escape the pursuing hemodrones. In Dr. Johnston’s view, Dr. Meloy, who also evaluated defendant, “understated” or “basically ignored” defendant’s mental history, “dramatically overstated” defendant’s “criminal or psychopathic or aggressive tendencies,” and “ignored evidence of the kind of thought disorder that [defendant] was experiencing at the time and how it did relate to a developed delusional system.”
Dr. Reid Meloy opined that defendant was not legally insane at the time he committed the second degree murder, concluding that defendant did not suffer from any pre-existing mental disorder such as schizophrenia or bipolar disorder; simply stated, any mental disorder or psychosis that defendant exhibited was caused by his abuse of methamphetamine. Dr. Meloy explained that if defendant had underlying schizophrenia independent of his drug use, he would have been receiving anti-psychotic medication while incarcerated because his condition would have deteriorated; instead, his condition had improved, as was historically the case every time defendant ceased using methamphetamine.
Dr. Meloy concluded that defendant was malingering psychotic symptoms during the interview and that the hemodrones were not a genuine delusion. There was no record of defendant having such a delusion prior to the fatal crash, and no one heard him discuss hemodrones during the hours leading up to and after the crash. In fact, defendant’s belief in hemodrones was not documented until his interview with Dr. Stembridge on January 15, 2004.
Disagreeing with Dr. Stembridge’s diagnosis that defendant suffered from a “mild form” of schizophrenia, Dr. Meloy explained that there is no such diagnosis. In his view, it was like saying someone is “mildly pregnant.” Dr. Meloy diagnosed defendant with a personality disorder not otherwise specified with schizotypal and narcissistic features, and opined that defendant was “in the midst of a narcissistic rage” at the time of the collision because he was being evicted, had lost his job, and had relationship problems.
DISCUSSION
I
Defendant contends the trial court erred in modifying the 2003 version of CALJIC No. 4.00 as follows in relevant part: “The Defendant has been found guilty of the crime of murder. You must now determine whether he was legally sane or legally insane at the time of the commission of the crime. . . . Mental illness and mental abnormality, in whatever form either may appear, are not necessarily the same as legal insanity. A person may be mentally ill or mentally abnormal and yet not be legally insane. A person is legally insane when by reason of mental disease or mental defect he was incapable of either, one, knowing the nature and quality of his act, or two, understanding the nature and quality of his act, or three, distinguishing right from wrong at the time of the commission of the crime. The Defendant has the burden of proving legal insanity at the time of the commission of the crime by a preponderance of the evidence. The term ‘wrong’ as used in this instruction refers to both legal and moral wrong. A ‘legal wrong’ is an act which violates the law. A ‘moral wrong’ is an act which violates society’s generally accepted standards of moral obligation. Thus, a Defendant is incapable of distinguishing right from wrong if at the time of the crime by reason of mental disease or defect he, one, could not understand that his act was a violation of the law, or two, could not understand that his act was a violation of generally accepted standards of moral obligation. However, this defense of legal insanity does not apply when the sole or only basis or causative factor for the mental disease or mental defect is a personality or adjustment disorder, or an addiction to or an abuse of intoxicating substances.”
In defendant’s view, the trial court erred in advising the jury that “[t]he term ‘wrong’ as used in this instruction refers to both legal and moral wrong.” Relying on People v. Torres (2005) 127 Cal.App.4th 1391, he claims this language incorrectly conveyed that defendant had the burden of proving both an inability to distinguish (1) legal right from legal wrong and (2) moral right from moral wrong. (Id. at p. 1402.)
The People respond that defendant forfeited his claim of error under the invited error doctrine because defense counsel stipulated to the modification of the instruction, and the record supports an inference that counsel did so for tactical reasons. According to the People, the court modified the instruction to clarify that the inability to distinguish between right and wrong included moral right and wrong, not just legal right and wrong. (See People v. Coddington (2000) 23 Cal.4th 529, 608, overruled on another point in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) This modification benefited defendant given the fact Dr. Johnston testified that at the time of the crash, defendant “believed he was being actively pursued by superhuman or supernatural conspirators, and that he believed that he was morally right in attempting to escape and allude [sic] them.”
Our review discloses that no error occurred. Thus, we need not decide whether defendant forfeited his ability to raise the claim of error.
In reviewing a claim of instructional error, we examine the instructions to determine whether the law was correctly conveyed to the members of the jury. (People v. Kelly (1992) 1 Cal.4th 495, 525.) We consider the specific language challenged, as well as the instructions as a whole (People v. Cain (1995) 10 Cal.4th 1, 36), and assume that the jurors were intelligent persons capable of understanding and correlating all of the instructions given. (People v. Mills (1991) 1 Cal.App.4th 898, 918.) The correctness of jury instructions is determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction viewed in isolation. (People v. Castillo (1997) 16 Cal.4th 1009, 1016.) Defendant must show that there is a reasonable likelihood the jury understood the instructions in the manner he asserts. (People v. Cain, supra, 10 Cal.4th at p. 36 .)
Here, unlike in People v. Torres, supra, 127 Cal.App.4th 1391, upon which defendant relies, the instruction given included the following advisement: “[A] Defendant is incapable of distinguishing right from wrong if at the time of the crime by reason of mental disease or defect he, one, could not understand that his act was a violation of the law, or two, could not understand that his act was a violation of generally accepted standards of moral obligation.” (Italics added.) Thus, viewed as a whole, the instruction correctly advised the jury that defendant had the burden of proving that he was incapable of distinguishing right from wrong at the time he committed the crime; “wrong” included both legal and moral wrong; and to prove that he was insane, defendant need only show either that he could not distinguish what is legally right from what is legally wrong, or what is morally right from what is morally wrong.
There is no reasonable likelihood that the jury understood the instruction as requiring defendant to prove that he was incapable of distinguishing between both legal right and wrong and moral right and wrong. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1192 [“if defendant believed the instruction was unclear, he had the obligation to request clarifying language”].)
II
Defendant argues the sanity verdict must be reversed because his trial counsel was acting under a potential and/or actual conflict of interest arising out of counsel’s prior representation of defendant’s girlfriend, Marlena Brennan.
Both the California and United States Constitutions grant criminal defendants the right to the effective assistance of counsel, which includes the right to representation that is free from conflicts of interest. (People v. Cox (2003) 30 Cal.4th 916, 948 (hereafter Cox.) “‘Conflicts of interest . . . “embrace all situations in which an attorney’s loyalty to, or efforts on behalf of, a client are threatened by his responsibilities to another client or a third person or by his own interests.”’” (People v. Hardy (1992) 2 Cal.4th 86, 135, italics omitted.)
“Under the federal Constitution, when counsel suffers from an actual conflict of interest, prejudice is presumed. [Citation.] This presumption arises, however, ‘only if the defendant demonstrates that counsel “actively represented conflicting interests” and that “an actual conflict of interest adversely affected his lawyer’s performance.”’ [Citations.] An actual conflict of interest means ‘a conflict that affected counsel’s performance--as opposed to a mere theoretical division of loyalties.’ [Citation.]” (People v. Roldan (2005) 35 Cal.4th 646, 673.) In other words, the possibility of a conflict is insufficient to overturn a criminal conviction. (Cox, supra, 30 Cal.4th at p. 948.)
In contrast, under the state Constitution a defendant need show only a potential conflict; however, there must be a factual basis in the record supporting an “informed speculation” that the asserted conflict adversely affected counsel’s performance. (Cox, supra, 30 Cal.4th at p. 948; People v. Frye (1998) 18 Cal.4th 894, 998.) Whether counsel’s performance was “adversely affected” “requires an inquiry into whether counsel ‘pulled his punches,’ i.e., whether counsel failed to represent defendant as vigorously as he might have, had there been no conflict.” (Cox, supra, 30 Cal.4th at p. 948.) “[W]here a conflict of interest causes an attorney not to do something, the record may not reflect such an omission.” (Id. at p. 949.) In such a circumstance, we must “examine the record to determine (i) whether arguments or actions omitted would likely have been made by counsel who did not have a conflict of interest, and (ii) whether there may have been a tactical reason (other than the asserted conflict of interest) that might have caused any such omission.” (Ibid.)
Defendant argues that Brennan was a crucial witness because she “substantiat[ed] [his] psychotic hemodrone delusion,” which would have helped to refute Dr. Meloy’s opinion that defendant did not have a genuine hemodrone delusion as reflected by the fact he never mentioned the hemodrones to anyone until after the crash. He observes the record contains evidence he had battered Brennan during their relationship and she suffered from schizophrenia. Thus, in his view, the record permits an informed speculation that his trial counsel declined to call Brennan as a witness because counsel had divided loyalties and “sought to protect his fragile, former client against her attacker and the stressful ordeal of testifying.” According to defendant, this shows both a potential and actual conflict of interest because counsel “placed himself in a position conducive to divided loyalties.” We are not persuaded.
Prior to trial, defendant moved to remove his trial counsel (People v. Marsden (1970) 2 Cal.3d 118 (hereafter Marsden)) because, having represented Brennan at her competency hearing, counsel might have difficulty questioning her. Defendant expressed doubts that counsel “could press [Brennan] if he needed to” on direct or cross-examination.
Defense counsel acknowledged that he had represented Brennan, who was “in custody right now serving time”; however, counsel said that the representation was over and he did not believe there was a conflict because (1) Brennan and defendant did not have contrary interests, and (2) the People never charged defendant with any domestic violence against Brennan. In counsel’s view, Brennan actually would be helpful to defendant’s case, and counsel did not see any conflict regardless of whether he, or the People, called Brennan as a witness.
As we will explain, the trial court did not abuse its discretion in denying the Marsden motion.
A trial court may decline to relieve defense counsel if it determines that the risk of a conflict of interest is too remote; in making its determination, the court may rely on representations of defense counsel that no conflict exists. (People v. Lawley (2002) 27 Cal.4th 102, 146.)
Whether a conflict exists is a “highly fact-intensive” question that is dependent on numerous “factors, including, but not limited to, whether the [trial] attorney has confidential information that is helpful to one client but harmful to another; whether and how closely the subject matter of the multiple representations is related; how close in time the multiple representations are related; and whether the prior representation has been unambiguously terminated.” (United States v. Infante (5th. Cir. 2005) 404 F.3d 376, 392.) For example, “[a] conflict may arise if a former client is a witness in a new case because the attorney is forbidden to use against a former client any confidential information acquired during that attorney-client relationship. [Citations.] [¶] But if the attorney possesses no such confidential information, courts have routinely held that no actual or potential conflict of interest exists.” (Cox, supra, 30 Cal.4th at p. 949.)
A conflict of interest also may exist when defense counsel places himself in a position conducive to divided loyalties, such as when a counsel has to choose between vigorously cross-examining a former client (which might jeopardize the former client’s future legal rights and remedies) and not vigorously cross-examining the former client (which would risk allowing the prosecution to use the former client’s testimony to establish an essential element of the case against counsel’s current client.) (U.S. v. Infante, supra, 404 F.3d at pp. 392-393.) However, there is no actual conflict of interest unless “defense counsel is compelled to compromise his or her duty of loyalty or zealous advocacy to the accused by choosing between or blending the divergent or competing interests of a former or current client.” (Perillo v. Johnson (5th Cir. 2000) 205 F.3d 775, 781.)
Here, defendant has not shown an actual conflict. He points to no evidence that the subject matters of the multiple representations were closely related. He does not establish that counsel obtained confidential information from Brennan that counsel was forbidden to use in defendant’s trial. Nor does he demonstrate that counsel’s vigorous examination of Brennan would jeopardize her legal rights, but not doing so would jeopardize defendant’s because Brennan was a crucial prosecution witness. Defendant merely raises a possibility that his trial attorney did not call Brennan as a witness in order to protect her fragile mental health. This is nothing more than a mere theoretical division of loyalties.
Furthermore, this is insufficient to demonstrate a potential conflict of interest. At the Marsden hearing, defendant described Brennan as volatile and questioned whether she would be helpful to his case. During defense counsel’s opening statement, he stated he intended to call Brennan and explained she was schizophrenic, heard voices, and acted on them. Dr. Meloy’s report portrayed Brennan as a severely damaged individual with a plethora of mental health issues, and the report contained statements by Brennan about defendant that supported Meloy’s hypothesis that defendant was acting under a narcissistic rage when he committed the offense. This evidence supports an inference that counsel may have opted not to call Brennan because he ultimately determined that she would not be a helpful, reliable, or credible witness; the mere fact she may have heard defendant discuss hemodrones before the collision was not helpful given that it was originally Brennan’s delusion. It is also possible that Brennan had suffered a psychotic relapse and was not available to testify at trial, or that counsel feared Brennan’s demeanor would tangibly demonstrate for the jury the difference between true schizophrenia and defendant’s claim of schizophrenia. Thus, based on this record, there are tactical reasons that might have caused defense counsel not to call Brennan as a witness, and it is likely that a different attorney, who did not share defense counsel’s alleged conflict, also would not have called Brennan to testify. (Cox, supra, 30 Cal.4th at p. 949.)
It follows that defendant has failed to show that defense counsel’s performance was adversely affected by the alleged conflict in interest and that counsel did not represent defendant as vigorously as he might have, if there had been no conflict. (Cox, supra, 30 Cal.4th at p. 948.)
Defendant also suggests that, at a minimum, we should remand the matter to the trial court for an evidentiary hearing regarding whether a conflict of interest existed. However, absent evidence that defense counsel’s failure to call Brennan was the result of an “obvious potential conflict of interest” which adversely affected
his performance, remand is unwarranted. (Cf. People v. Cornwell (2005) 37 Cal.4th 50, 78.)
DISPOSITION
The judgment is affirmed.
We concur: MORRISON, J., BUTZ, J.