People v. Mejia-Lenares

Full title: THE PEOPLE, Plaintiff and Respondent, v. JOSE LUIS MEJIA-LENARES…

Court: Court of Appeal of California, Fifth District

Date published: Jan 26, 2006

135 Cal.App.4th 1437 (Cal. Ct. App. 2006)

38 Cal. Rptr. 3d 404

Opinion

No. F045355.

January 26, 2006. [CERTIFIED FOR PARTIAL PUBLICATION^_]

_ Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication. The portions directed to be published are the Intorudction, part I of the Discussion and the Disposition.

Appeal from the Superior Court of Kern County, No. BF101579A, Clarence Westra, Jr., Judge.

Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Clayton S. Tanaka and Paul A. Bernardino, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

ARDAIZ, P. J.

INTRODUCTION ^_

_ See footnote, ante, page 1437.

On April 21, 2003, an information was filed in Kern County Superior Court, charging appellant Jose Luis Mejia-Lenares with murder involving the use of a knife. (Pen. Code,¹ §§ 187, subd. (a), 12022, subd. (b)(1).) A jury subsequently acquitted him of first degree murder, but convicted him of second degree murder and found the knife use allegation to be true. The jury further found him to have been sane at the time he committed the offense. He was sentenced to prison for 15 years to life, enhanced by one year for the knife use, and filed a timely notice of appeal.

1 All statutory references are to the Penal Code unless otherwise stated.

In the published portion of this opinion, we hold that so-called imperfect self-defense cannot be based on delusion alone; hence, the trial court did not err in rejecting appellant's requested modification of CALJIC No. 8.73.1. In the unpublished portion of the opinion, we reject appellant's claims of evidentiary error. Accordingly, for the reasons which follow, we affirm the judgment.

FACTS ^_

_ See footnote, ante, page 1437.

I

PROSECUTION EVIDENCE

Appellant (also known as Diego) and Harry Howard first met in approximately December 2000, then began living together as a couple sometime in 2001. They first lived in Howard's Hollywood apartment; then, in October or November 2002, they moved to a residence Howard rented on Lancer Way, in Lebec. During their relationship, they got along well and had only normal disagreements that did not involve violence. On the weekend of February 16, 2003, Howard visited the Huntington Beach home of Dolly and David Gaspar, his sister and brother-in-law, to pick up some money that he had asked Dolly Gaspar to loan him. Howard said that he and appellant had gone to a movie in Hollywood, then appellant had left. Howard, who said he had given appellant all of his money, planned to go to Hollywood to look for appellant. The Gaspars offered to go with him so that David Gaspar, who spoke Spanish, could translate for Howard (who spoke little Spanish) and appellant (who understood some English, but did not speak it well). The search was unsuccessful, and they returned to their respective homes. Early the next afternoon, February 17, Howard returned to the Gaspar residence. With him were appellant and someone Dolly Gaspar knew only as Caesar. David Gaspar assisted Howard and appellant in a lengthy conversation that concerned money. Appellant was angry because, due to the move to Lebec, Howard had not given him money in two months to send to appellant's country, El Salvador. Howard had David Gaspar explain to appellant that Howard had cashed in his 401(k) account, and that he was going to give appellant $1,000. After being told this, appellant started to smile and said everything was okay. Appellant, Howard, and Caesar all appeared happy when they left early that evening. At 11:07 that night, 911 dispatcher Tammy Wulfekuehler received a call with, initially, an open line. In response, Kern County Sheriff's Deputy Hallmark was dispatched to Howard's home on Lancer Way. California Highway Patrol Officers Huot and Yanez also responded. Wulfekuehler then listened while the caller — subsequently identified as Howard — stated he had just been stabbed. He named appellant as his assailant and said he was breaking into the house. Howard described himself as bleeding badly and dying. He then related that appellant was stabbing him at that moment and was cutting his throat. Wulfekuehler was then left with an open line once more.³ During this time, Timothy Ellis, who lived across the street from Howard, was awakened by pounding and a man's voice yelling something to the effect of, let me in, or, open the door. From his window, Ellis could see a man's figure moving back and forth erratically on the front porch of Howard's residence He was banging "manically" on the outside of the house and the windows. This person was "very out of control." Ellis called 911, then saw the man pick up what looked like a chair and smash the window to the left of the door. Ellis subsequently saw the man moving around the inside of the house and heard a lot of commotion. At this point, he could hear two voices. There was a lot of yelling and screaming, then someone started moaning loudly.⁴ Approximately five to ten minutes later, Ellis saw someone exit the house, walking casually and carrying a large object over his shoulder. Ellis believed him to be the man he had seen on the porch. At this point, Deputy Hallmark arrived and saw appellant coming from the rear of the residence. When Hallmark asked what was going on, appellant, who was carrying a blanket, stopped, then turned and began to walk away from Hallmark. Hallmark identified himself and ordered appellant to stop, but appellant ran. Hallmark gave chase and knocked appellant to the ground, and appellant then submitted to arrest. Appellant had blood on his hands and pants, but Hallmark did not notice any injuries. Neither he nor Officer Huot observed any obvious indications of drug or alcohol use.⁵ Huot remained with appellant, who was kind of crying and speaking in Spanish. After a few minutes, he calmed down and said nothing else. Meanwhile, Hallmark and Officer Yanez ran toward the front of the house. As they approached, they saw Caesar Figueroa coming out of the house. Hallmark took him into custody, then continued on into the house. Inside was a body with multiple stab wounds to the head and abdomen. A cordless telephone was nearby. Hallmark determined that the victim was Harry Howard. Numerous drops of blood were subsequently found on the stairs leading up to the front porch, as well as on the porch itself. A bloody shovel was found on the porch, and there was broken glass underneath the window just west of the front door. There was also blood on the door, which was standing open. Inside the front door was a very thick puddle of blood. Howard's body was lying between two chairs in the living room. Paperwork regarding a 401(k) plan in his name was in a plastic bag on one of the chairs. A pair of bloody jogging pants lay on the floor. A drawer containing knives and other utensils was standing open in the kitchen. In one of the bedrooms, detectives found Howard's wallet and identification, as well as his and appellant's clothing. A broken lamp lay on the floor next to the bed, and there were what appeared to be cast-off bloodstains on the sheet toward the bottom of the bed. In the other bedroom were bags belonging to Caesar Figueroa. At the rear of the house was a covered driveway, with stairs leading to a door and the laundry room. There was blood on the back door. A bloody paring knife with a three-inch blade was found on the concrete area just below the stairway. A bloody shirt and a butcher knife with a bloody handle were found in the laundry room. A bloody softball-size rock was on the stairway. Another bloody rock was found in the yard east of the residence. A Nissan Sentra was parked in the driveway, next to the stairs. Appellant was found to have the keys to the Nissan in his pocket. He had no cash or credit cards. He was wearing several layers of clothing, all of which were bloodstained, as were his hands, head, and feet. He was wearing a ring on each hand.⁶ He had one small laceration on the outer portion of his left wrist and another cut on his left ring finger. Caesar Figueroa had no injuries, and the only blood was on the cuff of one sleeve. He was subsequently released. The Thursday following the homicide, Dolly Gaspar picked up Howard's mail. In it was a check made out to him from an IRA account in the amount of $15,000. Within a month after Howard's death, an ax was found in David Gaspar's truck, which was parked at Howard's residence and had been in Howard's possession on February 17. An autopsy revealed that Howard had suffered 101 stab wounds, a number of which were potentially fatal. These included a cluster of 19 wounds to the neck that went into the area of the carotid sheath,⁷ and two penetrating wounds to the liver. There were also slashing wounds to the abdomen, as well as stab wounds to the head, face, right shoulder, right side, back, abdomen, and legs. There were defensive wounds on the hands and legs, and blunt force trauma to the face, including a broken nose, that could have been caused by a rock. The cause of death was exsanguination due to multiple stab wounds. Death occurred within minutes.

3 A tape-recording of the call was played for the jury.

4 Ellis's call was logged at 11:16 p.m. Linda Elmendorf, who lived on Lancer Way, was awakened by someone screaming for help. She believed it was Howard. She went outside and heard, "Jose, we can't let you have it," and "lady get down." She also heard what sounded like someone being hit or a fight. Her call to 911 was logged at 11:20 p.m.

5 A urine sample was subsequently obtained from appellant. It was negative for drugs.

6 One of the rings was Howard's class ring from college. Although appellant wore the ring on a couple of occasions, Howard almost always wore it.

7 A cluster of wounds generally indicates that the victim is not resisting or struggling to get away.

II

DEFENSE EVIDENCE Appellant presented evidence of his good character for nonviolence, the peaceable nature of his relationship with Howard, and the fact that he was subservient to Howard in their relationship. In his homeland of El Salvador, he had romantic relationships with women. Those who knew him never saw anything to suggest he had a sexual interest in men, nor did they know him to have any mental problems. Although appellant and Howard exchanged vows and went through a ring ceremony in July 2002, appellant's family did not know he and Howard were in a gay relationship. In July 2002, Howard revealed to his niece that appellant had had a sore on his leg that did not heal. In August or September of that year, Howard learned that he himself was HIV-positive. Patricia Robinson worked with Howard. During the 90 days preceding his death, she noticed that his appearance was uncharacteristically unkempt, and he seemed more anxious than usual. He said something about how appellant was acting. Robinson was aware Howard had been having financial difficulties since at least January 2002, as he was sending money to help appellant's family in El Salvador. In January 2003, Howard told his niece that appellant was upset because he did not have any money to send to his family since Howard was buying the Nissan that was in his possession at the time of his death. On February 16, Howard related to his niece that, when he told appellant he had no money to send to appellant's family, appellant immediately started getting weird and hearing voices and talking about the devil. Howard also mentioned that appellant had started sleeping with an ax. Kern County Sheriff's Detective Soliz was asked to assist in the investigation of this case in part because he was fluent in Spanish. His first contact with appellant occurred at the sheriff's substation approximately three hours after appellant's arrest. Soliz, who had close physical contact with appellant, did not notice any symptoms of recent alcohol or drug use. During the interview, appellant was passive and cooperative. He told Soliz that he thought Howard was the devil and that he transformed. Appellant said Howard had something in the bed, and that he sometimes talked to his dead mother. Appellant admitted that he had not seen this person, but said he felt someone was there when he was alone. He said that soldiers lived under the house, although he had not seen them. Appellant also said that Howard had given him AIDS.⁸ Appellant related that he believed in witchcraft, and he asked Soliz to examine his head because he (appellant) did not know what was wrong with himself. He reported that he was suicidal. Appellant underwent a mental health screening at the jail on February 18, 2003. The licensed vocational nurse found him to present as very psychotic (having hallucinations or delusions) and delusional (having false beliefs). Appellant related that there was smoke in the house that he breathed constantly and that contained diseases as a result of black magic. He said he would not eat because his partner put diseases in his food and drink. He also said he was refusing to sleep. He did not appear to be malingering. When a licensed vocational nurse saw him the next day, he complained of hearing voices that were commanding him to kill himself. He did not appear to be malingering. Dr. Sincoff, the jail psychiatrist, saw appellant on February 20. Based on appellant's symptoms of major depression, which included a history of depressed mood for more than four months, not sleeping or eating well, and having suicidal thoughts, Sincoff diagnosed major depression with psychotic features, including delusions. Psychosis is a symptom of mental illness. It can take several forms, including hallucinations (hearing or seeing things that are not there), delusions, and not organizing thoughts well. Sincoff prescribed antidepressant and antipsychotic medications, and appellant's symptoms decreased. Appellant testified on his own behalf. Born in El Salvador, he was considerably smaller than Howard physically and had only a third-grade education. He neither spoke nor understood English. Prior to this case, he had never been in trouble with the law. He was raised as a Catholic, but believed in witchcraft. In El Salvador, he had romantic relationships with women. He did not have any sexual interest in men. In 2000, he came to the United States and began living with Miriam, a woman with whom he had had an intimate relationship of several years' duration. While he was with her, he used his true name. During the time he was living with Miriam, he met Howard, and they became friends. After meeting Howard, appellant had an interest in seeing what it was like to live with men. They became romantically involved within the first two months of knowing each other, and appellant moved in with Howard. When he was with Howard, he called himself "Diego," changing his name because he was embarrassed and ashamed. While appellant and Howard lived in Hollywood, appellant had a job at a furniture factory. Their apartment was very small and appellant loved the countryside, so they moved to Lebec. They did not know anyone there. Howard was able to talk to people, but appellant could not because of the language barrier. Appellant felt torn between Howard and Miriam, whom he unsuccessfully tried to contact. At the time they moved to Lebec, appellant was happy in his relationship with Howard, although he was embarrassed to be living with a man. He did not disclose the relationship to his family for fear they would ostracize him. He sent money to his family while he was working in Hollywood; after the move, Howard would sometimes give him $100 and he would send it. Appellant was only able to do this every two or three months, as Howard did not have a lot of money. Appellant was not employed after the move to Lebec because he was undocumented, did not know anyone, and was timid. Howard told appellant to just stay home and work in the yard, which appellant did. After the move to Lebec, appellant attempted suicide three times because he felt sick and depressed. He "felt something in [his] head." He wanted to return to El Salvador because he was not feeling well, but Howard said no. Appellant had begun to believe he might have AIDS in July 2002, when he developed a sore on his leg. Howard informed appellant of his own HIV-positive status in September 2002, after they had been having sexual relations in which they never used condoms. Appellant believed Howard had infected him. Approximately a month before his arrest in this case, appellant started sleeping with an ax. He began to get sick and felt like someone wanted to damage him. When he would see appellant with the ax, Howard would sleep in the other bedroom because he was afraid. The weekend prior to his arrest, appellant felt bad and heard voices. There was a bad odor, as if something was burning. Appellant felt the house was haunted. He told Howard that he heard voices underneath the house and asked if they could both go and look, but Howard said he did not hear anything. Appellant discussed this situation by telephone with his sister in El Salvador and told her he felt "fatal," like he was crazy. He would hear voices, as if the house was bewitched, and he felt a desire to commit suicide. Appellant's sister told him to return to El Salvador. Appellant was also having physical problems with sores that would not heal. Howard, who had similar lesions, gave him some pills. Appellant believed the sores were the result of AIDS, and he felt "fatal." That weekend, the two men went to Hollywood to see a movie. Afterward, appellant told Howard that he wanted to leave because he felt very bad. He took a briefcase containing a change of clothing, and left. He wanted to return to Miriam, and intended to leave Howard permanently because he felt bad about being with a man. At some point, appellant ran into Caesar, who had previously lived with appellant and Howard. Appellant told Caesar that he wanted to go to the doctor to see what he had in his head. Caesar suggested telephoning Howard; as appellant had been unable to locate Miriam, he agreed. Howard picked them up, and they all went to the Gaspar residence. Although he was not angry, appellant said that he did not want to return to Lebec with appellant, but instead wanted to go back to El Salvador. It was decided that Dolly Gaspar would lend Howard $200 to send to appellant's family. There was no discussion about Howard obtaining a large sum of money or about him giving appellant money to return to El Salvador.⁹ After being told that Howard was getting some money, appellant agreed to go home with him. Howard, Caesar, and appellant then returned to Lebec. Howard drove, as usual, since appellant did not know how to drive. Appellant was not upset or angry about anything when they left the Gaspar residence. That night, Howard and appellant retired to their room, while Caesar used the other bedroom. Howard and appellant argued over who gave AIDS to whom. Both were still angry when they went to bed. There was no argument concerning Howard's college ring; he had given it to appellant several days before as it no longer fit him. After appellant went to bed, he felt a chilling sensation, like bad spirits were grabbing him. It felt like a dream. He woke up when Howard hit him, and he saw Howard getting a knife from underneath the pillow. Howard said he was going to kill appellant. When appellant asked why, Howard replied, "I'm going to kill you because I'm the devil." It seemed as if Howard's nose and ears were getting bigger. There was a rock holding the bedroom door, and appellant threw it at Howard's head. He then ran to the kitchen and grabbed a knife. He returned to the bedroom, and he and Howard began to fight. The fight moved into the living room. Appellant put his knife into Howard's stomach, but he felt bad, lost consciousness, and did not know what he was doing. Howard no longer had a knife when appellant stabbed him. Howard went outside, and appellant went after him. On the porch, they started grabbing each other, and appellant stabbed Howard more.¹⁰ Howard went back into the house and closed and locked the door. Appellant banged on the door, wall, and window, trying to get in, then broke the window with a shovel and gained entry that way. Howard was not doing anything to appellant, but the devil was in appellant by this time. Appellant cut his wrist when he broke in through the window. It was the only injury he received. When appellant broke in, Howard was on the telephone, begging for help.¹¹ Appellant did not recall whether he then started stabbing Howard in the neck. As appellant was covered in blood, he went into the bedroom and changed clothes. He kept hearing men's voices from all over. He did not know what to do; the only idea that came to him was to run. He left the knife he used in the laundry room. He did not recall whether, as he left, he took outside the rock he threw at Howard and the knife Howard had had. After his arrest, appellant told Detective Soliz that he and Howard had been "disputing." Appellant said the house was haunted and contained bad spirits, and he related that Howard was transforming himself into the devil. He also related that, in this form, Howard was trying to inject appellant with something. This was how things had appeared to appellant that night, but it was just his imagination. Throughout the incident, Howard appeared to appellant to be the devil, and appellant told Soliz that. When appellant stabbed Howard, he was afraid Howard was the devil and wanted to kill appellant.

8 Dr. Ragland, a physician at Kern Medical Center, confirmed that appellant had AIDS. Ragland could not tell when he developed it. Other than in pediatric cases, however, he was unaware of documented cases in which someone progressed from being HIV-positive to having AIDS in six months.

9 According to David Gaspar, appellant was upset, and so Howard offered to borrow money for a ticket so appellant could return to El Salvador. Appellant needed to say when he wanted to go, however, and never specified a date.

10 On cross-examination, appellant said he ran out the front door after grabbing the knife from the kitchen, and Howard followed him outside. Once on the porch, appellant turned and started stabbing Howard (who no longer had a knife) in the stomach. Howard was not touching appellant, but was insulting him.

11 Appellant initially testified that he did not see Howard after he broke back into the house.

DISCUSSION I ^fn_ IMPERFECT SELF-DEFENSE BASED ON DELUSION

As described at length in an unpublished portion of this opinion, appellant presented evidence that he fatally stabbed Harry Howard out of fear that Howard was transforming into the devil and wanted to kill him. Appellant conceded that he just imagined Howard was turning into the devil, but presented evidence that he was diagnosed near the time of the homicide as suffering from major depression with psychotic features, including delusions.

The trial court instructed the jury on first and second degree murder, as well as manslaughter based on sudden quarrel or heat of passion, or on the actual but unreasonable belief in the need to defend oneself against imminent peril to life or great bodily injury. The court also instructed in the language of CALJIC No. 8.73.1 (evidence of hallucination may be considered in determining degree of murder), to wit: "A hallucination is a perception that has no objective reality. If the evidence establishes that the perpetrator of an unlawful killing suffered from a hallucination which contributed as a cause of the homicide, you should consider that evidence solely on the issue of whether the perpetrator killed with or without deliberation and premeditation." Based on this court's opinion in People v. Padilla (2002) 103 Cal.App.4th 675 [ 126 Cal.Rptr.2d 889] ( Padilla), the trial court refused appellant's requested modification, which would have instructed jurors also to consider evidence of hallucination on the issue of whether the perpetrator "killed in the actual but unreasonable belief in the necessity to defend oneself against imminent peril to life or great bodily injury."¹²

12 As proposed, appellant's modified instruction read: "A hallucination is a perception that has not [ sic] objective reality, [¶] If the evidence establishes that the perpetrator of an unlawful killing suffered from a hallucination which contributed as a cause of the homicide, you should consider that evidence on the issues of whether the perpetration [sic] killed with or without deliberation or killed in the actual but unreasonable belief in the necessity to defend oneself against imminent peril to life or great bodily injury."

Appellant now says the evidence was sufficient to permit the jury to find that although a reasonable person would not have perceived the circumstances as life-threatening, appellant, because of his mental disease, actually but unreasonably believed Howard was threatening his life and so he needed to defend himself by using lethal force. Accordingly, the argument runs, the trial court erred by refusing the requested modification, and this refusal to instruct on appellant's theory of defense violated his state and federal constitutional rights, and constituted prejudicial error because no other instruction explained the relationship between appellant's mental disorder and unreasonable self-defense.

Appellant acknowledges that in Padilla, supra, 103 Cal.App.4th at page 679, this court held: "Failing the objective test, [a defendant's] hallucination cannot as a matter of law negate malice so as to mitigate murder to voluntary manslaughter — whether on a 'sudden quarrel or heat of passion' theory of statutory voluntary manslaughter [citations] or on a 'diminished actuality' theory of nonstatutory voluntary manslaughter [citations]. [Citations.]" (Fns. omitted.) He points out, however, that the opinion dealt solely with manslaughter based on sudden quarrel or heat of passion, as Padilla expressly disavowed a defense of imperfect self-defense both at trial and on appeal. ( Id. at p. 678, fn. 3.) He urges us to find that Padilla's, holding does not apply within the context now before us. As we will explain, we conclude that imperfect self-defense cannot be based on delusion alone.¹³

13 In People v. Wright (2005) 35 Cal.4th 964 [ 28 Cal.Rptr.3d 708, 111 P.3d 973], the California Supreme Court granted review to consider whether to extend the doctrine of imperfect self-defense "to a case in which the defendant's actual, though unreasonable, belief in the need to defend himself was based on delusions and/or hallucinations resulting from mental illness or voluntary intoxication, without any objective circumstances suggestive of a threat." ( Id. at p. 966.) After studying the record in the case, however, the court concluded that it did not need to reach the issue. ( Ibid.)

"California statutes have long separated criminal homicide into two classes, the greater offense of murder and the lesser included offense of manslaughter. The distinguishing feature is that murder includes, but man-slaughter lacks, the element of malice. [Citations.] [¶] Malice exists, if at all, only when an unlawful homicide was committed with the 'intention unlawfully to take away the life of a fellow creature' [citation], or with awareness of the danger and a conscious disregard for life [citations]." ( People v. Rios (2000) 23 Cal.4th 450, 460 [ 97 Cal.Rptr.2d 512, 2 P.3d 1066], fn. omitted.)

"Under the doctrine of imperfect self-defense, when the trier of fact finds that a defendant killed another person because the defendant actually, but unreasonably, believed he was in imminent danger of death or great bodily injury, the defendant is deemed to have acted without malice and thus can be convicted of no crime greater than voluntary manslaughter." ( In re Christian S. (1994) 7 Cal.4th 768, 771 [ 30 Cal.Rptr.2d 33, 872 P.2d 574] ( Christian S.); see, e.g., People v. Flannel (1979) 25 Cal.3d 668, 674 [ 160 Cal.Rptr. 84, 603 P.2d 1] ( Flannel); People v. Curtis (1994) 30 Cal.App.4th 1337, 1354 [ 37 Cal.Rptr.2d 304].) In such a situation, unreasonable or imperfect self-defense is not a true defense, but instead is a shorthand description of one form of voluntary manslaughter, a lesser included offense of murder. ( People v. Barton (1995) 12 Cal.4th 186, 200-201 [ 47 Cal.Rptr.2d 569, 906 P.2d 531].) "Accordingly, when a defendant is charged with murder the trial court's duty to instruct sua sponte . . . on unreasonable self-defense is the same as its duty to instruct on any other lesser included offense: this duty arises whenever the evidence is such that a jury could reasonably conclude that the defendant killed the victim in the unreasonable but good faith belief in having to act in self-defense." ( Id. at p. 201.) Likewise, "[t]he trial court need not give such instructions on request absent substantial evidence to support them. [Citations.]" ( People v. Stitely (2005) 35 Cal.4th 514, 551 [ 26 Cal.Rptr.3d 1, 108 P.3d 182].)

Even if it does not inspire confidence, a defendant's testimony constitutes substantial evidence. ( People v. Webster (1991) 54 Cal.3d 411, 443 [ 285 Cal.Rptr. 31, 814 P.2d 1273]; People v. Melton (1988) 44 Cal.3d 713, 746 [ 244 Cal.Rptr. 867, 750 P.2d 741].) Accordingly, the trial court here instructed on the theory of imperfect self-defense based on appellant's testimony that he saw Howard with a knife at the beginning of the incident. It is unclear whether appellant was hallucinating in that regard. In any event, appellant admitted throwing a rock at Howard's head at that point, then running to the kitchen and grabbing a knife. Although appellant's testimony was not clear concerning whether he then returned to the bedroom (where the incident started) or whether Howard followed him outside, appellant admitted that Howard no longer had a knife when appellant began stabbing him. Throughout the incident, appellant testified, Howard appeared to be the devil. By the end of events, however, Howard was not doing anything to appellant, but the devil was now in appellant. Appellant stabbed Howard because he was afraid Howard was the devil and wanted to kill him.

From the foregoing, it is clear that the evidence offered in support of appellant's claim of imperfect self-defense as to the killing itself (as opposed merely to the onset of events) showed that his alleged belief in the need to defend himself from imminent peril arose solely from his mental delusion that Howard was transforming into the devil and wanted to kill him. The issue thus presented is whether a belief that one is in danger of imminent harm, founded upon a delusion alone, can support a claim of imperfect self-defense so that the trial court should have given appellant's requested modification of CALJIC No. 8.73.1.

California follows the test of insanity laid down in M'Naghten's Case (1843) 8 Eng.Rep. 718, under which the accused must have been "incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense." (§ 25, subd. (b).)¹⁴ It has long been the rule in California that "insanity may not be used as a basis for extending leniency. It is either a complete defense, or none at all. There is no degree of insanity which may be established to affect the degree of crime." ( People v. Cordova (1939) 14 Cal.2d 308, 311 [ 94 P.2d 40].) Thus, "'"there is no degree of insanity sufficient to acquit of murder but not of manslaughter."'" ( People v. Phillips (1929) 102 Cal.App. 705, 708 [ 283 P. 821].)

14 The test is in the disjunctive, despite the literal wording of the statute. ( People v. Skinner (1985) 39 Cal.3d 765, 769 [ 217 Cal.Rptr. 685, 704 P.2d 752].)

At least in part to "ameliorate the law governing criminal responsibility" prescribed by the M'Naghten rule ( People v. Nicolaus (1967) 65 Cal.2d 866, 877 [ 56 Cal.Rptr. 635, 423 P.2d 787], disapproved on other grounds in People v. Wetmore (1978) 22 Cal.3d 318, 323-325 fn. 5 [ 149 Cal.Rptr. 265, 583 P.2d 1308]), two separate and independent, although occasionally overlapping, doctrines emerged: diminished capacity and imperfect self-defense (see People v. Saille (1991) 54 Cal.3d 1103, 1109-1111 [ 2 Cal.Rptr.2d 364, 820 P.2d 588] ( Saille) [reviewing history of diminished capacity doctrine]; Flannel, supra, 25 Cal.3d at pp. 675-677 [reviewing history of imperfect self-defense doctrine]). Under the diminished capacity doctrine, "evidence of diminished mental capacity, whether caused by intoxication, trauma, or disease, [could] be used to show that a defendant did not have a specific mental state [including malice] essential to an offense." ( People v. Conley (1966) 64 Cal.2d 310, 316 [ 49 Cal.Rptr. 815, 411 P.2d 911].) Under the doctrine of imperfect self-defense, as previously described, a defendant can seek to negate malice by introducing evidence that he or she actually, albeit unreasonably, believed it was necessary to defend himself or herself from imminent peril to life or great bodily injury. ( Flannel, supra, 25 Cal.3d at p. 674.)

For the most part, the cases construing these doctrines distinguish, at least implicitly, between absence of a specific state of mind due to mental disease or defect (diminished capacity) and unreasonable belief in a state of facts (imperfect self-defense). (Compare diminished capacity cases such as People v. Wetmore, supra, 22 Cal.3d at pp. 321-324 [defendant's evidence, establishing he entered apartment under delusion he owned it, admissible at guilt phase to show he lacked specific intent necessary for burglary, despite the fact such evidence was also probative of insanity]; People v. Poddar (1974) 10 Cal.3d 750, 758-760 [ 111 Cal.Rptr. 910, 518 P.2d 342] [defendant was paranoid schizophrenic; in context of implied malice, defendant, even if aware of duty to act in accordance with law, must also be able to act in accordance with that duty]; People v. Nicolaus, supra, 65 Cal.2d at p. 877 [defendant, who had long-standing mental problems, decided to bring his children to an extreme state of happiness and kill them; if defendant was legally sane but suffered from a mental illness that prevented his acting with malice aforethought or premeditation and deliberation, he could not be convicted of first degree murder]; People v. Conley, supra, 64 Cal.2d at pp. 318, 322 [defendant was intoxicated; malice aforethought can be negated by showing person who intentionally killed was incapable of harboring malice due to mental disease or defect or intoxication, as mental component of malice requires that defendant be aware of obligation to act within the law]; People v. Gorshen (1959) 51 Cal.2d 716, 726-727, 731-733 [ 336 P.2d 492], disapproved on other grounds in People v. Lasko (2000) 23 Cal.4th 101, 110 [ 96 Cal.Rptr.2d 441, 999 P.2d 666] and People v. Wetmore, supra, 22 Cal.3d at pp. 323-325 fn. 5 [defendant was intoxicated and suffering from mental disease; diminished capacity evidence properly admitted not as complete defense negating capacity to commit any crime, but as partial defense negating specific mental state essential to particular crime; murder can be reduced to manslaughter not only on statutory basis of provocation, but also on subjective standard of voluntary intoxication or mental impairment]; People v. Duckett (1984) 162 Cal.App.3d 1115, 1118-1119, 1126 fn. 4 [ 209 Cal.Rptr. 96] [defendant, a paranoid schizophrenic, believed one victim was the devil and the other a witch, and he heard auditory command hallucinations telling him one victim was going to kill him or have him killed; even though defendant apparently felt he had to kill to protect himself, case was tried only on theory of diminished capacity (and insanity), not on theory of imperfect self-defense]; People v. Lee (1979) 92 Cal.App.3d 707, 711-712 [ 155 Cal.Rptr. 128] [defendant, who killed victim during attempted sexual assault, had delusional system focused on belief people were trying to kill him and victim was part of ambush, so defendant thought he had to protect himself; offense could be no greater than manslaughter under diminished capacity if mental illness precluded defendant from entertaining malice] with imperfect self-defense cases such as Christian S., supra, 7 Cal.4th at pp. 772, 784 [minor shot and killed individual whose friends had verbally and physically threatened minor, and who, when shot, was chasing and threatening minor; case remanded for finding whether minor held actual belief of imminent harm]; Flannel, supra, 25 Cal.3d at pp. 673-674, 681 [defendant shot and killed victim after victim either pulled a knife or defendant believed he was pulling a knife; manslaughter would have been appropriate verdict]; Roads v. Superior Court (1969) 275 Cal.App.2d 593, 595-597 fn. 2 [ 80 Cal.Rptr. 169] [victim forced his way into defendant's house and menaced defendant despite warnings defendant would shoot, and when victim lunged at defendant, gun discharged, killing victim; prosecutor's failure to produce sufficient evidence of murder did not necessarily establish justifiable homicide since jury could find man-slaughter based on lack of reasonable belief]; People v. Lewis (1960) 186 Cal.App.2d 585, 593-594, 598 [ 9 Cal.Rptr. 263] [defendant struck victim with hatchet in response to assault with firearm; defendant entitled to voluntary manslaughter instructions on imperfect self-defense theory as jury could have found he acted under influence of fear not reasonably justified by circumstances]; People v. Best (1936) 13 Cal.App.2d 606, 608-610 [ 57 P.2d 168] [verbal altercation grew physical and when victim came after defendant, defendant struck him in head, causing fatal blood clot; voluntary manslaughter appropriate where act committed under influence of uncontrollable fear of death or great bodily harm, caused by the circumstances, but such belief unreasonable].)

Even People v. Wells (1949) 33 Cal.2d 330 [ 202 P.2d 53], disapproved on other grounds in People v. Wetmore, supra, 22 Cal.3d at pages 323-325 and footnote 5, which represents an early step in the development of both diminished capacity ( Saille, supra, 54 Cal.3d at p. 1109) and imperfect self-defense ( Christian S., supra, 7 Cal.4th at p. 776; Flannel, supra, 25 Cal.3d at p. 675), involved a belief which, although skewed by mental illness, was nevertheless factually based. In that case, the defendant suffered from a condition in which his body and mind were in a state of high sensitivity to external stimuli, causing him to react abnormally to situations and such stimuli. His threshold of fear was lower than that of an ordinary person, so that stimuli which would normally not cause fear would cause fear in him. ( People v. Wells, supra, 33 Cal.2d at pp. 344-345.) Under the circumstances, the California Supreme Court held that he should have been permitted to introduce evidence, against a charge requiring malice aforethought, that because of his abnormal condition he acted not with malice, but under a genuine fear for his safety and a belief he was defending himself from attack. ( Id. at p. 344.) The court pointed out that if the defendant acted only under fear of bodily harm and in the genuine, although unreasonable, belief he was defending himself against such harm by the use of a necessary amount of force, he would not be guiltless, but also would not be guilty of the crime charged because an essential element — malice aforethought — was lacking. ( Id. at p. 345.) In People v. Wells, however, the defendant was not suffering from a delusion, but from an abnormal reaction to reality.

Diminished capacity was eliminated by the Legislature in 1981¹⁵ and by voter initiative in 1982.¹⁶ (See Saille, supra, 54 Cal.3d at pp. 1111-1112.) However, "diminished actuality" remains a viable concept. While the Legislature, in eliminating the diminished capacity defense, "precluded jury consideration of mental disease, defect, or disorder as evidence of a defendant's capacity to form a requisite criminal intent, . . . it did not preclude jury consideration of mental condition in deciding whether a defendant actually formed the requisite criminal intent." ( People v. Williams (1997) 16 Cal.4th 635, 677 [ 66 Cal.Rptr.2d 573, 941 P.2d 752]; see People v. Coddington (2000) 23 Cal.4th 529, 583 [ 97 Cal.Rptr.2d 528, 2 P.3d 1081], overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13 [ 108 Cal.Rptr.2d 409, 25 P.3d 618]; People v. Hernandez (2000) 22 Cal.4th 512, 520 [ 93 Cal.Rptr.2d 509, 994 P.2d 354].)

15 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. . . ."

16 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."

Even the concept of diminished actuality is circumscribed, however. As the California Supreme Court explained in Saille, the law no longer "permits a reduction of what would otherwise be murder to nonstatutory voluntary manslaughter due to voluntary intoxication and/or mental disorder." ( Saille, supra, 54 Cal.3d at p. 1107, fn. omitted.) Saille recognized that sections 25, 28, and 29, while removing a defendant's ability to use evidence of a mental disorder to negate the capacity to form a requisite mental state, do permit such evidence on the issue of whether the accused actually formed the required mental state. ( Saille, supra, 54 Cal.3d at pp. 1111-1112.) Those statutes, however, must be read in conjunction with the definition of malice contained in section 188, which was amended as part of the same legislation that abolished diminished capacity. Section 188, which defines malice vis-à-vis section 187's definition of murder as "the unlawful killing of a human being . . . with malice aforethought" ( id. subd. (a)), provides:

"Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.

"When it is shown that the killing resulted from the intentional doing of an act with express or implied malice as defined above, no other mental state need be shown to establish the mental state of malice aforethought. Neither an awareness of the obligation to act within the general body of laws regulating society nor acting despite such awareness is included within the definition of malice." (§ 188.)

The Supreme Court found that the first sentence of the second paragraph limits malice to the definition contained in section 188, so that "once the trier of fact finds a deliberate intention unlawfully to kill, no other mental state need be shown to establish malice aforethought. Whether a defendant acted with a wanton disregard for human life or with some antisocial motivation is no longer relevant to the issue of express malice. [Citation.]" ( Saille, supra, 54 Cal.3d at pp. 1113-1114.) Since malice aforethought is established once an intentional unlawful killing is shown, the concept of "'diminished capacity voluntary manslaughter,'" i.e., nonstatutory manslaughter, is no longer valid.¹⁷ ( Id. at p. 1114.) Section 192, however, still negates malice when an intentional killing results from a sudden quarrel or heat of passion induced by adequate provocation. ( Saille, supra, 54 Cal.3d at p. 1114.) In reconciling section 188's definition of malice with the language of sections 22, subdivision (b) and 28, subdivision (a) (which made evidence of voluntary intoxication and mental illness admissible solely on the issue of whether the accused " 'actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged'"), the court noted that sections 22 and 28 apply to any crime, whereas section 188 defines malice for purposes of murder. ( Saille, supra, 54 Cal.3d at pp. 1112, 1115-1116.) "In combination, the statutes provide that voluntary intoxication or mental condition may be considered in deciding whether there was malice as defined in section 188." ( Id. at p. 1116.) Since section 188 equates express malice with intent unlawfully to kill,¹⁸ a defendant "is still free to show that because of his mental illness or voluntary intoxication, he did not in fact form the intent unlawfully to kill (i.e., did not have malice aforethought). [Citation.]" ( Saille, supra, 54 Cal.3d at p. 1117.)

17 The court made clear it was not considering the imperfect-self-defense form of nonstatutory voluntary manslaughter. ( Saille, supra, 54 Cal.3d at p. 1107, fn. 1.)

18 "'The adverb "unlawfully" in the express malice definition means simply that there is no justification, excuse, or mitigation for the killing recognized by the law. [Citation.]'" ( Saille, supra, 54 Cal.3d at p. 1115, italics added.)

Since appellant intended to kill Howard, he was not entitled, under Saille, to use mental illness to reduce the offense from murder to manslaughter unless he could do so under an imperfect self-defense theory.¹⁹

19 We recognize that voluntary manslaughter does not require an intent to kill ( People v. Lasko, supra, 23 Cal.4th at p. 110), and appellant's jury was instructed accordingly. However, in light of undisputed evidence that appellant inflicted on Howard 101 stab wounds (a number of which were potentially fatal), as well as significant blunt force trauma, defense counsel appropriately conceded, in argument to the jury, that appellant intended to kill. Appellant implicitly makes the same concession here. Accordingly, we have no occasion to determine the effect of delusion on imperfect self-defense where the killing involves not an intent to kill, but a conscious disregard for life. (See People v. Stitely, supra, 35 Cal.4th at p. 551 [unlawful killing involving intent to kill or conscious disregard for life constitutes voluntary manslaughter when defendant acts upon actual but unreasonable belief in need for self-defense]; People v. Blakeley (2000) 23 Cal.4th 82, 88-89 [ 96 Cal.Rptr.2d 451, 999 P.2d 675]; Christian S., supra, 7 Cal.4th at p. 780, fn. 4.) We note, however, that the law does not distinguish between express and implied malice for purposes of voluntary manslaughter based on imperfect self-defense. (See People v. Blakeley, supra, at p. 89.) Accordingly, we question whether it logically would distinguish between the mental states of intent to kill and conscious disregard for life where, as here, the issue is the viability of imperfect self-defense based on delusion.

Despite Saille's reasoning concerning the definition of malice set out in section 188, which would appear to be equally applicable to the imperfect self-defense doctrine (see Christian S., supra, 7 Cal.4th at pp. 792-795 (dis. opn. of Lucas, C. J.)), that doctrine remains viable, untouched by the abolition of diminished capacity ( Christian S., supra, 7 Cal.4th at p. 771). In Christian S., the state Supreme Court found no indication in the 1981 amendments to the Penal Code that the Legislature intended to eliminate imperfect self-defense along with diminished capacity, and it rejected the notion that the two concepts are so closely related that when the Legislature eliminated one, it necessarily also eliminated the other. ( 7 Cal.4th at pp. 774-778.) The court explained: "The two doctrines relate to the concept of malice, but the similarity ends there. Unlike diminished capacity, imperfect self-defense is not rooted in any notion of mental capacity or awareness of the need to act lawfully. To the contrary, a person may be entirely free of any mental disease, defect, or intoxication and may be fully aware of the need to act lawfully — and thus not have a diminished capacity — but actually, although unreasonably, believe in the need for self-defense. Put simply, an awareness of the need to act lawfully does not — in fact or logic — depend on whether the putative victim's belief in the need for self-defense is correct. A person who actually believes in the need for self-defense necessarily believes he is acting lawfully. He is thus aware of the obligation to act lawfully. A defendant could assert one doctrine even though the facts did not support the other. The diminished-capacity defense could be — and often has been — asserted when self-defense was not an issue; and, conversely, imperfect self-defense could be raised when there was no claim of diminished capacity." ( Id. at pp. 777-778.)

The court further found that imperfect self-defense was not eliminated by the language added to section 188 in 1981. ( Christian S., supra, 7 Cal.4th at p. 778.) Seemingly contrary to the interpretation given the statutory phrase "deliberate intention unlawfully to take away the life" in Saille (see Saille, supra, 54 Cal.3d at pp. 1114 — 1115), the Christian S. court determined that "unlawfully" modifies "intention" so that the statute requires an intent to act unlawfully, i.e., the defendant must have a wrongful intent. ( Christian S., supra, 7 Cal.4th at p. 778.)²⁰ The court noted: "A person who actually believes in the need for self-defense necessarily believes he is acting lawfully." ( Ibid.) Thus, "[w]hen the trier of fact finds that a defendant killed another person because the defendant actually but unreasonably believed he was in imminent danger of death or great bodily injury, the defendant is deemed to have acted without malice and cannot be convicted of murder." ( Id. at p. 783.)²¹

20 The Christian S. court found no inconsistency with Saille. ( Christian S., supra, 7 Cal.4th at pp. 779-780.)

21 An actual but unreasonable belief in the need to use deadly force in self-defense is deemed to negate malice essentially because the killer does not have an antisocial motive or evil state of mind. Under the plain language of section 188 as it has existed since 1981, however, when there is intent to kill, no other mental state need be shown to establish malice. Hence, the existence of an antisocial motive or evil state of mind is immaterial.

Although Christian S. settled the question of the imperfect self-defense doctrine's viability following the elimination of the diminished capacity defense, neither it nor any subsequent Supreme Court opinion suggests this "narrow" doctrine ( Christian S., supra, 7 Cal.4th at p. 783) now covers aspects of diminished capacity or diminished actuality not previously included. Thus, imperfect self-defense remains a species of mistake of fact (see id. at p. 779, fn. 3); as such, it cannot be founded on delusion. In our view, a mistake of fact is predicated upon a negligent perception of facts, not, as in the case of a delusion, a perception of facts not grounded in reality.²² A person acting under a delusion is not negligently interpreting actual facts; instead, he or she is out of touch with reality. That may be insanity, but it is not a mistake as to any fact.

22 A delusion is defined as "something that is falsely or delusively believed or propagated . . . as . . . a false conception and persistent belief unconquerable by reason in something that has no existence in fact [or] a false belief regarding the self or persons or objects outside the self that persists despite the facts. . . ." (Webster's 3d New Internat. Dict. (1986) p. 598.)

At least insofar as general intent crimes are concerned, it is settled that a mistake-of-fact defense, pursuant to section 26, class Three, cannot be predicated upon delusions which are the product of mental illness.²³ ( People v. Castillo (1987) 193 Cal.App.3d 119, 124-125 [ 238 Cal.Rptr. 207]; People v. Gutierrez (1986) 180 Cal.App.3d 1076, 1083 [ 225 Cal.Rptr. 885].) We fail to see why the rule should be any different simply because we are considering a specific intent crime or a mistake-of-fact defense under section 188. As noted in People v. Gutierrez, a mentally ill defendant who suffers from a delusion may represent a continuing threat and "may be blameworthy to some degree, although perhaps not as much as a completely sane individual. The position of the mentally ill defendant has been accommodated by providing for the NGI [not guilty by reason of insanity] 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.)

23 Section 26 provides in part: "All persons are capable of committing crimes except those belonging to the following classes: [¶] . . . [¶] Three — Persons who committed the act or made the omission charged under an ignorance or mistake of fact, which disproves any criminal intent."

We recognize that Flannel states: "No matter how the mistaken assessment is made, an individual cannot genuinely perceive the need to repel imminent peril or bodily injury and simultaneously be aware that society expects conformity to a different standard." ( Flannel, supra, 25 Cal.3d at p. 679.) In our view, this statement does not render irrelevant the basis of a defendant's actual belief: it relied on the expanded mental component of malice construed and applied in People v. Conley, supra, 64 Cal.2d 310, which established the defense of diminished capacity. As the California Supreme Court has since recognized, this portion of Flannel's reasoning is no longer valid due to the abolition of diminished capacity. ( Christian S., supra, 7 Cal.4th at p. 777.) Moreover, Flannel was not dealing with the case of a delusional defendant.

We further recognize that section 28 specifically allows evidence of mental illness at the guilt phase of a trial, where relevant to show that the accused did not harbor malice aforethought. This does not assist appellant, however, because, in our view, it does not mean the Legislature has authorized evidence of delusions specifically to support an imperfect self-defense claim.

We reach this conclusion for three reasons. First, our determination that a delusion, unsupported by any basis in reality, cannot sustain an imperfect self-defense claim, does not preclude all mentally ill defendants from using evidence of mental illness to assert imperfect self-defense. We are dealing in this case only with a mental aberration rising to the level of delusion and a killing which results solely from that delusion, and nothing we say should be read any more broadly.

Second, section 28 has no impact on the imperfect self-defense doctrine. The court in Christian S. specifically found that the Legislature intended no change in the doctrine of imperfect self-defense when it enacted the 1981 legislation — including section 28 — that abolished diminished capacity. ( Christian S., supra, 7 Cal.4th at p. 775.) Since the cases upon which imperfect self-defense is founded show no intent to have the doctrine apply in situations where there are no facts to support the defendant's belief in the need to use self-defense, our conclusion the doctrine cannot be used by appellant to reduce his offense to voluntary manslaughter merely follows the law that was in effect when Flannel was decided. As the Legislature intended no change in that law, section 28 has no effect on the doctrine.

It is true that the legislative history of the 1981 statutory changes states that, following those changes, "'to reduce murder to manslaughter, except in the delusional self-defense kinds of cases, there will have to be a showing of provocation, the traditional basis of manslaughter, to reduce murder to manslaughter.' [Citation.]" ( Christian S., supra, 7 Cal.4th at p. 781.) This statement does not persuade us that the Legislature intended imperfect self-defense to apply to cases where the defendant's actual belief is unsupported by any factual basis, since the legislative history suggests the Legislature did not focus on the question of imperfect self-defense.²⁴ ( Id. at pp. 781-782.)

24 Indeed, if the word "delusional" were read literally, it could be argued the Legislature meant to eliminate nonstatutory manslaughter in all cases except those involving self-defense based on true delusions. Instead, it is apparent the reference is to unreasonable self-defense situations.

Third, section 28 is not the only statute that must be taken into account. Section 1016, which permits pleas of, inter alia, not guilty and not guilty by reason of insanity ( id., subds. 2, 6), specifies that "[a] defendant who does not plead not guilty by reason of insanity shall be conclusively presumed to have been sane at the time of the commission of the offense charged. . . ." (Italics added.) In the present case, of course, appellant did enter pleas of both not guilty and not guilty by reason of insanity. When such is the case, the defendant must first be tried as if only a not guilty plea was entered, "and in that trial the defendant shall be conclusively presumed to have been sane at the time the offense is alleged to have been committed. . . ." (§ 1026, subd. (a), italics added.)

"Although guilt and sanity are separate issues, the evidence as to each may be overlapping." ( People v. Hernandez, supra, 22 Cal.4th at p. 520.) Thus, in spite of the literal language of section 1020,²⁵ "at the guilt phase, a defendant may present evidence to show that he or she lacked the mental state required to commit the charged crime. [Citations.]" ( Hernandez, at p. 520; see Saille, supra, 54 Cal.3d at pp. 1111-1112.) A lack of the requisite mental state is not the same, however, as insanity. "A finding of such mental state does not foreclose a finding of insanity. Insanity, under California law, means that at the time the offense was committed, the defendant was incapable of knowing or understanding the nature of his act or of distinguishing right from wrong. [Citations.] [¶] The plea of insanity is thus necessarily one of 'confession and avoidance.' [Citation.] 'Commission of the overt act is conceded' but punishment is avoided 'upon the sole ground that at the time the overt act was committed the defendant was [insane].' [Citation.]" ( Hernandez, at pp. 520-521, italics omitted.)

25 Section 1020 provides: "All matters of fact tending to establish a defense other than one specified in the . . . sixth subdivision of Section 1016, may be given in evidence under the plea of not guilty."

Persons operating under a delusion theoretically are insane since, because of their delusion, they do not know or understand the nature of their act or, if they do, they do not know that it is wrong. By contrast, persons operating under a mistake of fact are reasonable people who have simply made an unreasonable mistake. To allow a true delusion — a false belief with no foundation in fact — to form the basis of an unreasonable-mistake-of-fact defense erroneously mixes the concepts of a normally reasonable person making a genuine but unreasonable mistake of fact (a reasonable person doing an unreasonable thing), and an insane person. Thus, while one who acts on a delusion may argue that he or she did not realize he or she was acting unlawfully as a result of the delusion, he or she may not take a delusional perception and treat it as if it were true for purposes of assessing wrongful intent. In other words, a defendant is not permitted to argue, "The devil was trying to kill me," and have the jury assess reasonableness, justification, or excuse as if the delusion were true, for purposes of evaluating state of mind.

To hold otherwise would undercut the legislative provisions separating guilt from insanity. Allowing a defendant to use delusion as the basis of unreasonable mistake of fact effectively permits him or her to use insanity as a defense without pleading not guilty by reason of insanity, and thus to do indirectly what he or she could not do directly while also avoiding the long-term commitment that may result from an'insanity finding. If a defendant is operating under a delusion as the result of mental disease or defect, then the issue is one of insanity, not factual mistake. To allow a mistake-of-fact defense to be based not on a reasonable person standard but instead on the standard of a crazy person would undermine the defense that is intended to accommodate the problem.

Appellant asserts that "[a] delusional belief in the need to defend oneself is considered enough evidence to support instructing on imperfect self-defense." Although appellant cites no authority in support of this proposition, our research has uncovered some cases which arguably might be read as buttressing his position. A close examination of several of them, however, reveals the existence of at least some facts to support the defendant's actual belief in the need to use deadly force. Thus, for instance, in People v. Hardin (2000) 85 Cal.App.4th 625, 631-632 [ 102 Cal.Rptr.2d 262], the defendant killed an elderly woman after he refused to leave her residence and she threatened him with a hammer. In DePetris v. Kuykendall (9th Cir. 2001) 239 F.3d 1057, 1058-1060, the defendant, after suffering years of abuse, killed her husband while he was asleep in bed. In Seidel v. Merkle (9th Cir. 1998) 146 F.3d 750, 752, the defendant killed while involved in a fight.

Appellant's claim is not bolstered by the cases we have found in which no such facts seemingly existed. In People v. Webber (1991) 228 Cal.App.3d 1146 [ 279 Cal.Rptr. 437], there apparently was no factual basis to support the defendant's belief that he was going to be the victim of a drive-by shooting and therefore had to shoot into a car traveling on a street next to the vehicle in which he was riding. Although the defendant proffered imperfect self-defense at trial, the issue raised on appeal was whether he was entitled to an instruction on involuntary manslaughter. ( Id. at pp. 1154-1155, 1160-1165.) As the Court of Appeal had no occasion to determine whether a delusion alone could support an imperfect self-defense claim, the case cannot stand for such a proposition.

In People v. Uriarte (1990) 223 Cal.App.3d 192 [ 272 Cal.Rptr. 693] (upon which appellant relied below), the defendant, who sometimes suffered from hallucinations due to his drug and alcohol abuse, killed his neighbors in the delusional belief they were holding his wife hostage. ( Id. at pp. 194-196.) On appeal, he contended the trial court erred by refusing to instruct the jury that he was guilty of voluntary manslaughter, not murder, if, as a result of his delusional mental state, he honestly but unreasonably believed the killings were necessary to prevent imminent great bodily injury to his wife. ( Id. at pp. 196-197.) As the Court of Appeal found insufficient evidence to support the doctrine of imperfect self-defense ( id. at pp. 197-198), its statement that the defendant's theory for requesting such an instruction was correct ( id. at p. 197), is dictum. Moreover, it is dictum with which we disagree: the cases which form the basis of the imperfect self-defense doctrine, and which are cited in Flannel, state that the defendant's belief must be "caused by the circumstances." (See, e.g., People v. Lewis, supra, 186 Cal.App.2d at p. 598; People v. Best, supra, 13 Cal.App.2d at pp. 609-610; see also People v. Wright, supra, 35 Cal.4th at pp. 982-984 (cone. opn. of Brown, J.).) When there are no circumstances to support the belief, the doctrine does not apply.

In People v. Scott (1983) 146 Cal.App.3d 823 [ 194 Cal.Rptr. 633], Division Two of the Fourth District Court of Appeal considered a case in which the defendant was convicted of attempted vehicle theft.²⁶ The defendant was at a party and became involuntarily intoxicated to the point of hallucination after someone spiked the punch. While in this state, he appropriated two vehicles, apparently believing he was a government agent who was trying to save his own life or possibly that of the President. ( Id. at pp. 826-829.) At trial, the defendant asserted a diminished capacity defense in order to negate the specific intent requirement of the vehicle theft statute. On appeal, the court declined to discuss diminished capacity, finding instead that no crime was committed pursuant to class Three of section 26. The court found the defendant acted under a mistake of fact in that he believed he was a government agent who was acting to protect his own life or that of the President; where mistake of fact is concerned, guilt or innocence is determined as if the facts were as the accused perceived them; had the facts been as the defendant perceived them, his actions would have been legally justified under the doctrine of necessity; and, although the defendant's mistake of fact was irrational, it was reasonable under the circumstances of his having been involuntarily intoxicated with a hallucinogenic substance. ( People v. Scott, supra, at pp. 831-832.)

26 Although the defendant originally entered an insanity plea, it was withdrawn, without trial, after he was granted summary probation. ( People v. Scott, supra, 146 Cal.App.3d at p. 826.)

The Scott court itself has cautioned that the case's holding is limited to the facts presented therein. ( People v. Gutierrez, supra, 180 Cal.App.3d at p. 1083.) Those facts are not presented here and, whatever the merit of the court's reasoning with regard to those facts, we do not find it applicable to appellant's situation. By appellant's own admission, Howard did not have a knife when appellant started stabbing him.

Courts in other states have held that defendants whose belief in the need to use self-defense stems entirely from mental delusions and paranoia, cannot avail themselves of the doctrine of imperfect self-defense. For example, in State v. Ordway (1997) 261 Kan. 776 [ 934 P.2d 94], the Kansas Supreme Court held that its statutory version of imperfect self-defense, which provides that voluntary manslaughter is the intentional killing of a human being "'upon an unreasonable but honest belief that circumstances existed that justified deadly force'" ( id. at p. 100), does not apply "where a defendant raises the defense of insanity, and more specifically, the 'unreasonable but honest belief' necessary to support the 'imperfect . . . self-defense manslaughter' cannot be based upon a psychotic delusion." ( Id. at p. 104.) The court based its conclusion on the absence of any express indication that the Legislature contemplated an unreasonable belief might be based on psychotic delusions, the absence in Kansas case law of any indication that application of imperfect self-defense to cases where the defendant denied criminal responsibility due to mental illness was envisioned, and an Illinois case in which the court interpreted a similar statute as not intending an "unproved insanity defense" to be a mitigating factor in the crime of second degree murder. ( Id. at pp. 103-104.)

In Commonwealth v. Sheppard (1994) 436 Pa.Super. 584 [648 A.2d.563], the court held that trial counsel was not ineffective for failing to assert imperfect self-defense at trial where the defendant's belief in the need for self-defense arose from his paranoid mental state, and there was no objective basis for a subjective, although unreasonable, belief the defendant was in danger and acted in self-defense. ( Id. at pp. 567, 570.) In so holding, the court interpreted its statutory provision of imperfect self-defense, which states in part that "[a] person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify the killing . . . but his belief is unreasonable." ( 18 Pa. Cons. Stat. Ann. § 2503(b); Commonwealth v. Sheppard, supra, at p. 569.)

In Peterson v. State of Maryland (1994) 101 Md.App. 153 [ 643 A.2d 520], the Maryland appellate court concluded, under Maryland case law establishing that a defendant was guilty of voluntary manslaughter based on imperfect self-defense "'if the jury concluded that the defendant honestly believed that the use of force was necessary but that this subjective belief was unreasonable under the circumstances,'" that an "imperfect self-defense instruction should not be given unless the evidence generates the issue of whether, under the circumstances, the defendant was entitled to take some action against the victim." ( Id. at p. 522.) The court observed that in every Maryland case holding imperfect self-defense had been shown, the evidence was sufficient to support a reasonable conclusion the defendant was entitled to take some action against the victim. By contrast, in every case holding imperfect self-defense was not shown, the evidence was insufficient to support a reasonable conclusion the defendant was entitled to take any action against the victim. ( Id. at pp. 522-523.)

In State v. Seifert (1990) 155 Wis.2d 53 [ 454 N.W.2d 346], the Wisconsin Supreme Court, interpreting its imperfect self-defense statute that provides for "imperfect self-defense manslaughter" when a defendant causes death "'[u]nnecessarily, in the exercise of his privilege of self-defense or defense of others or the privilege to prevent or terminate the commission of a felony,'" held that imperfect self-defense was "never intended to cover situations . . . where it is entirely the defendant's mental disease or defect, not an error in judgment or perception or a negligently-formed perspective of the situation, that motivates the defendant's actions." ( Id. at pp. 349-350, 352, fn. omitted.) The court explained "that unnecessary or unreasonable acts in the context of imperfect self-defense manslaughter refer to acts resulting from an error in judgment or perception in contrast to the acts of a person of ordinary intelligence and prudence, not to acts resulting from a complete absence of reason and rational thought." ( Id. at p. 352, fn. 5.) The court concluded that "when a defendant's unlawful actions are totally the product of the defendant's mental illness, the law relieves the defendant of criminal responsibility for those actions" by a "finding of not guilty by reason of mental disease or defect." ( Id. at p. 353.)

While the statutory schemes differ in these other states, the reasoning in the cited cases applies with equal force here. That reasonableness is even an issue in determining whether a defendant acted in imperfect self-defense implies the defendant must be able to evaluate the facts as a reasonable person. When a defendant's belief in the need to use self-defense is based entirely on delusions, the defendant does not have a belief based on a reasonable perception of the circumstances. Instead, such a defendant's actions show he or she is entirely incapable of reasoning, comprehending, or judging the nature of the situation. As the courts found in State v. Ordway, supra, 934 P.2d 94 and State v. Seifert, supra, 454 N.W.2d 346, an unreasonable belief cannot be based on a psychotic delusion.

In People v. Tufunga (1999) 21 Cal.4th 935 [ 90 Cal.Rptr.2d 143, 987 P.2d 168], the California Supreme Court held it was prohibited from abolishing the claim-of-right defense to robbery because the Legislature codified, in the current robbery statute, the common law recognition that the defense can negate the felonious intent-to-steal element of the crime. ( Id. at p. 950.) In our view, this case does not stand for the proposition that, because imperfect self-defense is established as a recognized means of raising a reasonable doubt as to the existence of malice, its scope may not be narrowed or diminished except by legislative action. We are aware of no authority showing the Legislature recognized imperfect self-defense as a defense to murder (or means of establishing voluntary manslaughter as a lesser included offense thereto) by incorporating malice into the definition of the crime when it enacted the murder statutes in 1872, or that it otherwise codified the doctrine. To the contrary, the state Supreme Court has recognized that imperfect self-defense is a judicially-developed theory of voluntary manslaughter that is not expressed in the statutory scheme at all. ( People v. Rios, supra, 23 Cal.4th at p. 465; see People v. Wright, supra, 35 Cal.4th at pp. 983-984 (cone. opn. of Brown, J.).) As explained in Christian S., because malice is a statutory requirement for a murder conviction, the statute required courts to determine whether an actual but unreasonable belief in the imminent need for self-defense rose to the level of malice within the statutory definition. ( Christian S., supra, 7 Cal.4th at pp. 773-77'4.) Moreover, since we are not eliminating imperfect self-defense, we are not expanding the statutorily defined mens rea of malice. Instead, we find nothing in the language of sections 187 and 188 that suggests the Legislature intended to extend imperfect self-defense claims to defendants whose actual belief in the need to use self-defense is based on a delusion. Therefore, we are free to interpret the doctrine of imperfect self-defense as being inapplicable to such defendants. In so doing, we neither create a new form of manslaughter nor eliminate a form which already exists. (See People v. Anderson (2002) 28 Cal.4th 767, 770 [ 122 Cal.Rptr.2d 587, 50 P.3d 368] ["if a new form of manslaughter is to be created, the Legislature, not this court, should do it"].)

Last, we reject any notion that a rule barring delusion from supporting an imperfect self-claim, if applied to appellant, is unconstitutionally retroactive. We recognize that, in People v. Blakeley, supra, 23 Cal.4th at pages 91-92, the California Supreme Court stated that "'an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates in the same manner as an ex post facto law.'" In that case, the court concluded that an unintentional killing in unreasonable self-defense is voluntary man-slaughter, but declined to apply this holding to the defendant because previous appellate decisions had uniformly held that such a killing was only involuntary manslaughter. ( Id. at pp. 88-89, 92.) Thus, ex post facto principles precluded the. imposition of increased criminal liability to voluntary manslaughter for conduct that at the time was considered to be only involuntary manslaughter.

No similar ex post facto problem exists here. Unlike the situation in People v. Blakeley, supra, 23 Cal.4th 82, there is no uniform appellate rule interpreting the doctrine of imperfect self-defense contrary to our holding that said doctrine cannot be based on delusion. Moreover, our opinion does not deprive appellant of an affirmative defense that was available to him at the time he killed Howard. (See Moss v. Superior Court (1998) 17 Cal.4th 396, 429-430 [ 71 Cal.Rptr.2d 215, 950 P.2d 59].)

As imperfect self-defense cannot be based on delusion alone, appellant was not entitled to have jurors instructed to consider evidence of hallucination on the issue of whether appellant killed in the actual but unreasonable belief in the need to defend against imminent peril. Accordingly, the trial court did not err in refusing appellant's request to so modify CALJIC No. 8.73.1.

II, III ^fn_

ADMISSION OF APPELLANT'S STATEMENT As described in the statement of facts, ante, appellant gave a statement to Detective Soliz shortly after his arrest. At trial, the prosecutor moved, in limine, to exclude the statement from evidence unless appellant testified. In contrast, appellant sought to have the entire statement admitted. Appellant asserted that the only issue in this case was his state of mind at the time of the offense, and that the statement would support the proposition that he was suffering from some sort of delusion. Appellant represented that the statement was being offered for the non-hearsay purpose of showing that he was delusional at the time of the offense; moreover, if it was deemed to be hearsay, it was admissible pursuant to Evidence Code section 1250. The trial court undertook a line-by-line examination of the transcript of the English translation of the tape-recorded interview, and determined what was relevant and admissible pursuant to Evidence Code section 1250, and what should be excluded, for the most part as irrelevant or pursuant to Evidence Code sections 352 and 1251. As previously described, appellant elicited portions of the interview from Soliz, including that appellant said he thought Howard was the devil and that he transformed. Following his own testimony, appellant sought to recall Soliz in order to elicit the full interview as a prior consistent statement. Appellant argued that, when the whole interview was presented in context, it was apparent he was "clearly quite delusional," and that, by questioning whether he told the arresting officers about the house being haunted, the prosecutor had implied a fabrication. The prosecutor countered that, at the time the statement was made, appellant was under arrest and being questioned about a homicide, and so the statement was not made before the motive to fabricate existed. The court determined that the portions of the interview already in evidence contained the exact information to which appellant testified, and that the prosecutor's examination did not challenge the accuracy of appellant's testimony in that regard. Accordingly, it ruled that the information appellant wanted to bring to jurors' attention was already before them through Soliz's testimony, and so the request for admission of the entire interview was denied. Appellant now claims the trial court committed federal constitutional error when it precluded the jury from hearing his complete statement, because the court's ruling excluded the most relevant evidence of appellant's mental state just before, and during, the time of the killing, and thereby deprived appellant of his right to present a defense. Appellant says portions of the statement were circumstantial evidence of his state of mind and, hence, not hearsay (see People v. Ortiz (1995) 38 Cal.App.4th 377, 389-390); and, to the extent the statement constituted hearsay, it was admissible in its entirety as a statement of appellant's then-existing mental state (Evid. Code, § 1250) and as a prior consistent statement (Evid. Code, §§ 791, 1236). It is apparent, from the record citations contained in appellant's brief, that his argument relates to the trial court's guilt phase rulings, and not to anything that occurred during sanity phase.²⁷ In our view, evidence of appellant's assertedly delusional state of mind at the time of the killing was relevant, at guilt phase, only with respect to whether appellant committed manslaughter or murder and, if murder, whether he premeditated and deliberated. Appellant identifies no other purpose for such evidence. The jury rejected the notion that appellant premeditated and deliberated; we have rejected the notion that appellant could base a claim of imperfect self-defense on his delusional state.²⁸ Under the circumstances, assuming the trial court erred by refusing to admit the entire interview with Soliz, such error was harmless under any standard.

III

ADMISSION OF THE 911 TAPE During in limine motions, appellant sought to exclude the tape recording of Howard's 911 call, which included Howard's contemporaneous account of appellant stabbing him and Howard's death. Appellant contended the tape did not have much probative value since the only issue was state of mind, and that it was highly prejudicial in that it was likely to influence jurors on an emotional level. Since the tape contained Howard's identification of appellant as his assailant and also revealed that Caesar was in the house, appellant offered to stipulate that he was the sole person responsible for Howard's injuries. The prosecutor contended that the tape was admissible as a dying declaration and as a spontaneous statement, and that it showed the order in which events occurred. She argued that this was highly probative of appellant's state of mind, especially since it supported the idea that appellant stabbed Howard on the porch and then broke back into the residence and stabbed him again, and that it was also probative because it did not contain sounds of appellant screaming or yelling or doing things that might be considered consistent with not knowing what one was doing. The prosecutor also argued that the tape was about 12 or 13 minutes long, and that the time frame was probative with respect to whether appellant committed murder or manslaughter. Appellant clarified that he sought exclusion of the tape itself, and agreed that the statements made could be admitted either through a verbal description from a witness or from a transcript of the recording, but the prosecutor still sought to have the actual tape played for the jury. She argued that the tape showed how much time appellant had, from infliction of the final stab wound until the deputy's arrival, to change clothes and move things around. She also argued that the time frame — which was not shown by the transcript — was highly probative of first degree murder. The trial court listened to the tape, then ruled that it constituted a spontaneous statement (Evid. Code, § 1240) and a dying declaration ( id., § 1242). It found the audio portion reflective of the time frame over which events occurred, and concluded that the time frame and what was heard by listening to the tape were the best evidence of the perpetrator's state of mind, specifically with respect to intent to kill and premeditation. The court concluded: "It is overwhelmingly valuable evidence, so valuable that it is hard to conjure up the amount of prejudice that would be necessary for the Court to rule that it's not admissible. [¶] . . . [I]t has such value that the probative value is so great, that even though certainly the trier of fact will be put in a unique position of hearing a person who's speaking his last words, I'm of the considered opinion that the probative value far, far, far outweighs that prejudicial, possible or potential prejudicial impact, such that the Court's of the considered opinion that . . . it is admissible, and will rule it admissible under Section 352, with those considerations in mind." The tape subsequently was admitted into evidence as exhibit 3 (with the transcript admitted as exhibit 3A) and played for the jury. Appellant now says the trial court abused its discretion when it overruled his Evidence Code section 352 objection to the evidence, and that the error resulted in a violation of his right to due process.²⁹ He argues that a transcript of the tape, along with a stipulation regarding the time lapse, could have been admitted, and that the tape itself was prejudicially inflammatory. Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." Under this section, "the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion 'must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]' [Citation.]" ( People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.) We have been unable to find any published case in which a sound recording of an actual homicide has been played for the jury.³⁰ Accordingly, we turn for guidance to cases involving the admission of victim, crime scene, and autopsy photographs. These cases lead us to the conclusion that the trial court's ruling was well within the bounds of reason. Appellant's not guilty plea put in issue all of the elements of the offense. ( People v. Balcom (1994) 7 Cal.4th 414, 422.) Since the People were proceeding on a theory of first degree murder, the prosecutor also had to prove premeditation and deliberation, which cannot be established solely by the brutality of a killing. ( People v. Anderson (1960) 70 Cal.2d 15, 24-25.) Moreover, under the circumstances of this case, the prosecutor had to prove malice by establishing appellant's mental state, and by showing a lack of provocation or imperfect self-defense. (See People v. Rios, supra, 23 Cal.4th at pp. 461-462.) The tape recording was highly probative on these issues, as it tended to establish the sequence of events (including that, after seriously injuring Howard, appellant did not stop his attack but instead broke back into the house to resume stabbing his victim and to inflict the final blows) and, significantly, the amount of time that elapsed. With respect to photographs of murder victims, the California Supreme Court has said, "'The prosecutor "'was not obliged to prove these details solely from the testimony of live witnesses' [citation] or to accept antiseptic stipulations in lieu of photographic evidence. '[T]he jury was entitled to see how the physical details of the scene and the bod[y] supported the prosecution theory. . . .'" [Citation.]' [Citations.]" ( People v. Scheid (1997) 16 Cal.4th 1, 16-17; see also People v. Arias (1996) 13 Cal.4th 92, 131 [prosecution in criminal case generally cannot be compelled to accept stipulation if effect would be to deprive state's case of persuasiveness and forcefulness].) We fail to see why the tape recording at issue should be assessed any differently. The California Supreme Court has "'described the "prejudice" referred to in Evidence Code section 352 as characterizing evidence that uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues. [Citation.] As [that court has] observed, victim photographs and other graphic items of evidence in murder cases always are disturbing. [Citation.]' [Citations.]" ( People v. Scheid, supra, 16 Cal.4th at p. 19.) We have listened to the tape, and find it to be not as shocking or horrific as one might expect, given the subject matter. Although it undoubtedly was disturbing to jurors, it was not so gruesome as to have impermissibly swayed them, especially in view of the fact they were shown gory photographs and presented with testimony concerning a number of the wounds and details of the bloody crime scene. (See People v. Scheid, supra, 16 Cal.4th at p. 20.) Moreover, the tape was, as we have discussed, highly probative; and, given the existence of periodic intervals of extended silence, we doubt the passage of time could have been accurately conveyed by stipulation. Additionally, the jury was instructed "not [to] be influenced by pity for a defendant or by prejudice against the defendant," and "not [to] be influenced by sentiment, . . . sympathy, passion, [or] prejudice. . . ." "We assume that the jurors followed that instruction [citation] and considered the [tape recording] for [its] evidentiary value alone." ( People v. Memro (1995) 11 Cal.4th 786, 866.) To summarize, we find the trial court reasonably determined that the probative value of the tape recording outweighed its potentially prejudicial effect. Accordingly, it did not abuse its discretion under Evidence Code section 352 by overruling appellant's objection, admitting the tape into evidence, and permitting it to be played for the jury. As there was no error, appellant's constitutional rights cannot have been violated thereby.

29 Appellant may raise the constitutional claim in this manner for the first time on appeal. ( People v. Partida (2005) 37 Cal.4th 428, 431.)

30 In People v. Bittaker (1989) 48 Cal.3d 1046, a tape recording the defendant made of himself torturing a victim was admitted into evidence, but apparently without objection. ( Id. at pp. 1066-1068, 1078.)

DISPOSITION

The judgment is affirmed.

Cornell, J., and Dawson, J., concurred.

Appellant's petition for review by the Supreme Court was denied May 17, 2006, S141539. Baxter, J., did not participate therein.