Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. 1105509, Ricardo Cordova, Judge.
R. Shanti Bright Brien for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Janis Shank McLean, David A. Rhodes, and Paul A. Bernardino, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Wiseman, Acting P.J.
Procedural History
Appellant Danise Marie McFadden was charged with gross vehicular manslaughter, a violation of Penal Code section 192, subdivision (c)(1). She was convicted of the lesser-included offense of misdemeanor vehicular manslaughter. (§ 192, subd. (c)(2).) McFadden was sentenced to 90 days in jail, 250 hours of community service, and four years of formal probation.
All further references are to the Penal Code unless noted.
Factual HISTORY
On November 16, 2005, around 3:00 a.m., McFadden was driving her car above the posted speed limit. She rear-ended a vehicle stopped for a red light at the intersection of Claus Road and Briggsmore Avenue in Modesto, California. McFadden did not attempt to brake before the collision. Tragically, the driver of the stopped vehicle was killed.
McFadden testified that she and her husband had been having marital problems and she had been unable to sleep for several days before the accident. She said that the night of the accident she had approached her husband after putting her children to bed, hoping to talk. He was watching television and became very angry with her. He yelled at her and looked threatening. She became “[s]cared out of [her] mind,” afraid that her husband would harm her. At trial, McFadden said her husband had never been violent with her. The probation department reported that McFadden had been having weird thoughts in the days before the accident. On the night of the accident, she was concerned that her husband would burn down the house and blow up Modesto. She took off her clothes and left the house in a Mexican blanket, stating she needed to reconnect with her heritage. McFadden is not of Mexican decent.
McFadden has little recollection of the accident. She remembers driving, but does not remember getting into the car. She felt she needed to go to Mexico, although she knows no one there. Fearing for her life, McFadden was in a hurry to get away from her husband. She did not see the traffic lights at the intersection (located a short distance from her home). As she approached the intersection, she saw two square red lights, low to the street, but thought they were an illusion, a mirage through which she could drive. She did not see the decedent’s truck. After the accident, the naked McFadden got out of her car and ran into the Stanislaus Behavioral Health Center (Center) seeking help and calling for people she once knew. She was ultimately retained under the authority of Welfare and Institutions Code section 5150.
The responding police officer testified that after the accident McFadden’s demeanor was strange. He said she was able to focus on questions, answering some coherently, but as to others he had no idea “where she was with things.” The officer was limited in his description of McFadden’s condition by the court’s evidentiary rulings excluding evidence of McFadden’s mental health status. A second responding officer testified that McFadden told him her husband was trying to kill her.
Within 36 hours of the accident, McFadden was evaluated by Dr. Philip Trompetter. He reported that, before and after the accident, McFadden engaged in extremely bizarre behavior and thought processes. He concluded that at the time of the accident McFadden was “acutely and actively psychotic,” citing the “consistency and credibility of the reported and observed symptoms by [Modesto Police Department], [Center] Security, Memorial North [Hospital] ER staff, [Center] staff, [McFadden’s] family and [himself].” He opined that McFadden’s perception of reality was profoundly impaired by delusions and hallucinations. Her psychotic confusion led to bizarre actions that caused this accident to occur. He concluded that McFadden “was unable to appreciate the danger of driving ‘through’ [the decedent’s] vehicle as she delusionally thought his vehicle was a mirage or illusion. In her psychotic state of mind, she was neither acting negligently, nor was she being intentionally reckless.” This evidence was not presented to the jury, having been excluded by the court’s pretrial evidentiary rulings.
On our own motion, we take judicial notice of Dr. Trompetter’s report, filed under seal in the companion case of In re McFadden, case No. F054547, filed on January 17, 2008. (Evid. Code, § 452, subd. (d).)
Discussion
I. Failure to admit mental health evidence
The central issue on appeal is whether evidence of McFadden’s alleged psychotic break, or mental health status, was relevant to the issue of guilt. Specifically, McFadden argues that the trial court erred in excluding much of the testimony she wished to rely on to establish that she lacked the requisite mental state to commit the crime charged. The trial court ruled that, because gross negligent vehicular manslaughter is a general-intent crime, evidence of a defendant’s mental status at the time of or subsequent to the accident is irrelevant and prohibited by sections 25 and 28. Generally, we review a trial court’s rulings on relevance and the admission or exclusion of evidence for abuse of discretion. (People v. Harrison (2005) 35 Cal.4th 208, 230.)
Section 25, subdivision (a), states: “The defense of diminished capacity is hereby abolished. In a criminal action, … evidence concerning an accused person’s intoxication, trauma, mental illness, disease, or defect shall not be admissible to show or negate capacity to form the particular purpose, intent, motive, malice aforethought, knowledge, or other mental state required for the commission of the crime charged.”
Section 28, subdivision (a), provides in part: “Evidence of mental disease, mental defect, or mental disorder shall not be admitted to show or negate the capacity to form any mental state .…” Subdivision (b) of the statute states: “As a matter of public policy there shall be no defense of diminished capacity, diminished responsibility, or irresistible impulse in a criminal action .…”
The existence of a guilty mind, or mens rea, is paramount to the principles of Anglo-American criminal jurisprudence. In nearly every criminal conviction, the prosecution must prove some form of guilty intent, knowledge, or criminal negligence. To impose criminal liability, “there must exist a union, or joint operation of act and intent, or criminal negligence.” (§ 20; In re Jennings (2004) 34 Cal.4th 254, 267; In re Jorge M. (2000) 23 Cal.4th 866, 872.) Only strict-liability offenses eliminate the requirement of mens rea. (People v. Rubalcava (2000) 23 Cal.4th 322, 331.) The remaining two categories of criminal offenses require either specific or general criminal intent. The difference between general- and specific-intent crimes is that when “‘the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act. This intention is deemed to be a general criminal intent. When the definition refers to [a] defendant’s intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent.’ [Citation.]” (Id. at p. 328; see also People v. Sargent (1999) 19 Cal.4th 1206, 1215 [general-intent crime is one where no further mental state beyond willing commission of act proscribed is required].) It is sufficient in general-intent crimes that the defendant intentionally completes the act declared to be a crime. (People v. Cole (2007) 156 Cal.App.4th 452, 477.)
While recognizing that gross vehicular manslaughter has been classified as a general-intent crime, McFadden argues that the offense has an additional mental-intent element that must be proven. (People v. Bennett (1991) 54 Cal.3d 1032, 1036 [gross negligence is exercise of so slight a degree of care as to raise presumption of conscious indifference to consequences; an “‘“I don’t care what happens”’” attitude]; People v. Thompson (2000) 79 Cal.App.4th 40, 54 [gross negligence involves aggravated, reckless, or flagrant disregard for human life or indifference to consequences of one’s conduct].) The jury was instructed that gross vehicular manslaughter “involves more than ordinary carelessness, inattention, or mistake in judgment.” A person acts with gross negligence when she acts recklessly “in a reckless way that creates a high risk of death or great bodily injury.”
We need not, however, determine whether the offense charged requires a particular mental state, because the jury did not convict McFadden of gross vehicular manslaughter. She was convicted of the lesser offense of simple vehicular manslaughter, which requires only ordinary negligence. (§ 192, subd. (c).) Given the jury’s verdict, in order to show prejudice, McFadden must establish that the evidence excluded was relevant to the offense of which she was convicted. There can be no prejudice in restricting evidence of a defense to a crime of which she was acquitted. (See People v. Benavides (2005) 35 Cal.4th 69, 91 [to prevail on claim evidence was wrongfully excluded, defendant must show it reasonably probable that jury would have reached different result on issue of guilt had evidence not been excluded].)
McFadden was convicted of a general-intent crime where the mental state was that of ordinary criminal negligence. Criminal negligence is conduct that amounts to a departure from what would be the conduct of an ordinarily prudent or careful person under the same circumstances. From this departure, we can presume a disregard for human life. (People v. Valdez (2002) 27 Cal.4th 778, 783; In re Dennis B. (1976) 18 Cal.3d 687, 696 [ordinary negligence may form basis of vehicular manslaughter conviction under section 192].) The test, however, is an objective one. If a reasonable person in a defendant’s position would have been aware of the risk involved in acting, then it is presumed the defendant was aware of the risk created by his or her behavior and chose to act in any event. (Williams v. Garcetti (1993) 5 Cal.4th 561, 574; Walker v. Superior Court (1988) 47 Cal.3d 112, 136 [criminal negligence evaluated objectively].) There is no mental state to be negated because the necessary mental state is presumed from the prohibited acts themselves. Criminal negligence alone is sufficient to make an act a criminal offense. (§ 20; see People v. Sargent, supra, 19 Cal.4th at p. 1215.) Evidence that McFadden was not aware of the risk of driving at a high speed because of her mental status was irrelevant to the jury’s determination of guilt; an objective person would have been aware of the risks created by driving at such a high speed.
Further, evidence of mental health status is not permitted to disprove general-intent crimes in California. (§§ 28, 25; People v. Drew (1978) 22 Cal.3d 333, 344; People v. Gauze (1975) 15 Cal.3d 709, 719; People v. Noah (1971) 5 Cal.3d 469, 477-478; People v. Gutierrez (1986) 180 Cal.App.3d 1076, 1082.) A defendant may no longer introduce evidence of mental disorders as an affirmative defense to a crime. (People v. Reyes (1997) 52 Cal.App.4th 975, 982.) Although McFadden correctly argues that the abolition of the diminished-capacity defense does not preclude jury consideration of a mental condition in deciding whether a defendant actually formed a requisite criminal intent (see People v. Williams (1997) 16 Cal.4th 635, 677), this distinction applies only to crimes having a subjective component. It has never been applicable to general-intent crimes lacking a subjective component such as the one here. (People v. Drew, supra, 22 Cal.3d at p. 343 [concept of diminished capacity allowed defendant to introduce evidence of mental incapacity to negate specific intent, malice, or other subjective elements of charged crime].)
McFadden also argues that the jury was entitled to hear the circumstances of the offense so that it could determine whether she acted intentionally and with the requisite criminally culpable mens rea. Section 21 states that “the intent or intention is manifested by the circumstances connected with the offense.” (§ 21, subd. (a).) It also, however, provides that, “[i]n the guilt phase of a criminal action …, evidence that the accused lacked the capacity or ability to control his conduct for any reason shall not be admissible on the issue of whether the accused actually had any mental state with respect to the commission of any crime.…” (§ 21, subd. (b), italics added.)
The statutory language is clear. The law in California precludes evidence of mental health status to address McFadden’s capacity to act purposefully in the context of a criminal negligence or general-intent crime. In other words, if McFadden’s defense is that she suffered from a mental disorder that precluded her actions from being intentional, purposeful, or with appreciation of the risks involved, her sole remedy is to plead not guilty by reason of insanity (NGI). She chose not to do so. However tragic mental illness might be, “[t]he position of the mentally ill defendant has been accommodated by providing for the NGI plea, by allowing evidence of mental illness to prove the absence of specific intent, and by permitting consideration of mental illness as a mitigating factor for sentencing purposes.” (People v. Gutierrez, supra, 180 Cal.App.3d at p. 1084.) This is a policy call by the Legislature intended to balance sympathy toward the mentally ill defendant against “considerations that such a person, being either legally sane or having voluntarily relinquished an insanity defense, may not be entirely blameless and may present a continuing public danger.” (Id. at p. 1082)
As the United States Supreme Court observed in Clark v. Arizona (2006) 548 U.S. 735, there is a vigorous debate within the profession about the contours of mental disease. (Id. at p. 774 [when considering constitutionality of state evidentiary rule excluding diminished capacity evidence in all but NGI cases].) Additional concerns identified by the court are the controversial character of some categories of mental disease and the potential of mental-disease evidence to mislead. (Ibid.) Although McFadden claims the elimination of her defense violated constitutional guarantees of due process and fundamental fairness, the decision in Clark defeats her argument. The court held that a state may choose to limit the evidence of mental illness in an NGI trial. The defendant in Clark alleged that evidence of his mental illness should have been considered to show he did not at the time of the offense have the knowledge or intent to shoot a police officer, in other words, a specific mental-state element. (Id. at p. 788.) In Arizona, under the law at the time Clark was decided, even mental health evidence defeating specific-intent mens rea was limited to NGI trials. The court stated:
Clark v. Arizona, supra,California’s policy determination is to limit admission of mental health evidence in a less restrictive way than Arizona, allowing the evidence in the guilt phase of a trial for the limited purpose of negating a specific mental-state element, but not to negate general criminal intent. This is a legitimate policy call by the Legislature and one we will not undercut. The trial court correctly excluded the evidence.
II. Accident and unconsciousness defense
McFadden also argues that she was entitled to instructions on the defenses of accident and unconsciousness. She claims the trial court had a sua sponte duty to give the instructions even in the absence of a request by counsel and, as an alternative, that she was denied effective assistance of counsel when her attorney failed to request the instructions. We disagree.
Although trial counsel did not use the terms “accident” or “unconscious” when arguing to admit the mental health evidence, this was the essence of his argument. He clarified that “I am not raising a mental health defense of the kind that’s discussed in [sections] 25 and 28 of the Penal Code. I am talking about my client’s knowledge of what was going on, and I am talking about how her perceptions at the time are instructive to the jury on whether or not she was, A, negligent; or, B, grossly negligent.” By arguing that the trial court should have instructed the jury on accident and/or unconsciousness, McFadden is essentially arguing that she did not act intentionally or purposefully and that she did not have the capacity to commit a crime. “Capacity” is understood to mean the ability to form a certain state of mind or motive, to understand or evaluate one’s actions, or control them. (Clark v. Arizona, supra, 548 U.S. at p. 752, fn. 7.) In California, capacity is defined by statute. Section 26, subdivision Four, states that an unconscious person is incapable of committing a crime. The term “unconscious” includes those who are capable of physical motion, but are not conscious of acting. (People v. Kelly (1973) 10 Cal.3d 565, 572.) Subdivision Five of the same section declares that a person who has committed an act by misfortune or accident is also incapable of committing a crime.
Mental health evidence is, by statute, inadmissible to prove that McFadden’s acts were not volitional. Section 26 has been held to include only those who are otherwise sane, for example those who are suffering with delirium from a fever or experiencing a blackout from an epileptic fit. (People v. Kelly, supra, 10 Cal.3d at p. 575.) Section 21 precludes the admission of any mental health evidence to establish that a defendant lacked the ability to control his or her conduct for any reason. The cases McFadden has cited in support of her argument that one need not be of sound mind to raise the defense of unconsciousness are inapposite. People v. Williams (1971) 22 Cal.App.3d 34, 53, and People v. Kitt (1978) 83 Cal.App.3d 834, 843, overruled on another ground in People v. Cooper (1991) 53 Cal.3d 771, 836, are cases involving some type of epileptic seizure, not mental illness. People v. Lisnow (1978) 88 Cal.App.3d Supp. 21, 24-25, involves the assertion of the defense of unconsciousness resulting from mental illness to negate a specific-intent element. As we have already stated, mental health evidence is admissible in California for this limited purpose. People v. Thurmond (1985) 175 Cal.App.3d 865 did not involve the admission of mental health evidence at all in its discussion of an accident defense. Additionally, all of these cases were decided before the addition of section 21, subdivision (b), to the Penal Code, which excludes mental health evidence to show capacity or volition. (§ 21, as amended by Stats. 1982, ch. 893, § 1.)
The only evidence of unconsciousness or accident presented at trial, or argued on appeal, is the evidence of McFadden’s severe psychosis. This evidence was properly excluded for the reasons we have stated. There was no other basis on which to give or request instruction on the defenses of unconsciousness or accident.
III. Speeding vs. failure to stop
McFadden claims that the prosecutor erred in charging the wrong predicate offense, and the trial court erred in instructing on the wrong predicate offense. She claims the proper predicate offense was failure to stop, not speeding, because the failure to stop was the actual cause of death. We reject this contention for a number of reasons. First, it was not raised at trial and therefore has been waived. (People v. Saunders (1993) 5 Cal.4th 580, 589-590.)
Second, McFadden’s contention that it was not her speeding that caused the death is unsupported by any citation to the evidence. There was no evidence at trial on what was the legal cause of death other than that it was the collision. It is the appellant’s responsibility to show affirmatively legal error. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.) Absent an indication in the record that an error occurred, we must presume there was no error. (Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 679.) Further, it is clear the speed at the very least contributed to the cause of death—we can take judicial notice of the universal truth that a car moving at 74 miles per hour is more deadly than a car moving at 50 miles per hour, and that it is more difficult to stop a car moving at a faster speed. (Evid. Code, § 451, subd. (f); Post v. Prati (1979) 90 Cal.App.3d 626, 633 [judicial notice may be taken of law or fact that is not reasonably subject to dispute].)
Instructional error does not require reversal unless there is prejudice. (People v. Rogers (2006) 39 Cal.4th 826, 875.) Here, there is no prejudice. There is no dispute that McFadden was speeding and that she failed to stop or even attempt to stop at the intersection. If the predicate offense had been the failure to stop instead of speeding, it is not reasonably probable that the trial would have had a different outcome. A reasonable person would have stopped for the red light before plowing into a car waiting at the intersection. The same rules regarding the admission of the mental health evidence would have applied regardless of whether the predicate offense was speeding or failure to stop. The bottom line: The result would have been the same.
IV. Prosecutorial misconduct
McFadden also argues that the prosecutor engaged in prosecutorial misconduct when he incorrectly defined the law of negligence in his closing argument. No objection was raised at the time. The prosecutor explained that there were different levels of negligence and stated that, because McFadden was going 74 miles per hour and the decedent was stopped, the decedent was not at fault, “[s]o we’re not here. So here, somewhere this goes from simple to gross [negligence].” According to McFadden, this statement falsely implies that only when the victim causes the collision can the defendant escape criminal liability for vehicular manslaughter. We reject this contention.
First, the issue has been waived by failing to raise it at trial. (People v. Ayala (2000) 23 Cal.4th 225, 284.) In response to the obvious waiver, McFadden argues she was denied effective assistance of counsel when her attorney failed to object. We will therefore address the merits of her claim in order to resolve the ineffective-assistance claim. (See People v. Williams (1998) 61 Cal.App.4th 649, 657.)
Even if we were to read the prosecutor’s remarks as being a misstatement of the law, something we do not do after considering the remarks in their context, there is no prejudice. In order to prevail on a claim of prosecutorial misconduct based on remarks to the jury, a defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. (People v. Gurule (2002) 28 Cal.4th 557, 627; People v. Frye (1998) 18 Cal.4th 894, 970.) Here, the jury properly was instructed on the law of criminal negligence. They were told that the arguments of counsel are not the law, and if there are any conflicts between what the attorneys state as law and what the court states as law, the jury must follow the instructions given by the court. We presume the jury understood and followed the instructions given in the absence of evidence to the contrary. (People v. Hinton (2006) 37 Cal.4th 839, 871.)
McFadden cannot establish that she was prejudiced by any prosecutorial misconduct. It follows that McFadden could also not establish any prejudice from her attorney’s failure to object to the prosecutor’s statements. When a defendant cannot establish that it is reasonably probable that a more favorable result would have occurred absent counsel’s failings, it is unnecessary to first consider whether counsel’s performance was deficient. (People v. Welch (1999) 20 Cal.4th 701, 751.) Since we find no prejudice, we need not consider whether counsel was deficient in failing to object.
In light of the fact that there was no error, McFadden’s claim that there was a cumulative prejudicial impact resulting from the many errors at trial also fails.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Levy J., Dawson J.