Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F08826
CANTIL-SAKAUYE , J.
Defendant Juan Peyton Menendez was found guilty of first degree murder (Pen. Code, § 187, subd. (a)) and assault with a firearm. (§ 245, subd. (a)(2).) With respect to the murder count, the jury found true the special circumstance that defendant intentionally committed the murder while lying in wait within the meaning of section 190.2, subdivision (a)(15) and the enhancement allegation that defendant had intentionally and personally discharged a firearm causing death within the meaning of section 12022.53, subdivision (d). With respect to the assault count, the jury found true the enhancement allegation that defendant had personally used a firearm within the meaning of section 12022.5, subdivision (a). In the sanity phase of defendant’s trial, the jury found defendant was legally sane when he committed each offense.
Hereafter, undesignated statutory references are to the Penal Code.
For some reason the information alleged this enhancement by reference to a previous version of the statute - section 12022.5, subdivision (a)(1), instead of to the applicable section 12022.5, subdivision (a). (See Stats. 2002, ch. 126 (A.B. 2173), § 3.) The jury verdict and abstract of judgment also reference subdivision (a)(1), instead of subdivision (a). The defect is one of form, not substance, and does not prejudice any substantial right of the defendant. (§ 960.) We also note the abstract of judgment erroneously reflects defendant’s assault with a firearm conviction was count one of the information. In fact, it was count two. In the interest of judicial economy, we shall order the abstract of judgment corrected. Any party wishing to address these issues may petition for rehearing. (Gov. Code, § 68081.)
The trial court sentenced defendant for his murder conviction to life in prison without the possibility of parole, plus 25 years to life for the related firearm enhancement. With respect to the assault conviction, the trial court sentenced defendant to prison for the middle term of three years, plus a consecutive four-year middle term for the firearm enhancement.
On appeal, defendant claims (1) his trial counsel provided ineffective assistance of counsel by requesting the jury be instructed in the sanity phase of his trial with an unmodified version of CALJIC No. 4.01, (2) the trial court instructions regarding the presumption of sanity and burden of proving insanity impermissibly lightened the prosecution’s burden of proving the elements of the charged offenses, (3) the trial court erred in refusing to hold an evidentiary hearing to determine whether prejudicial juror misconduct had occurred during the guilt phase of trial, (4) there is insufficient evidence to support his assault with a firearm conviction, (5) the lying-in-wait special circumstance violates due process, and (6) the lying-in-wait special circumstance is unconstitutionally vague in violation of the Eighth Amendment. Finding no merit in these claims, we shall affirm the judgment.
FACTUAL BACKGROUND
Guilt Phase
In June 2005, defendant Juan Peyton Menendez was hired by Carter & Burgess, a national architectural engineering consulting firm, as a computer aid design and drafting (CAD) technician. Defendant received the majority of his work assignments from Ryszard (Rick) Topor, one of the project managers for Carter & Burgess.
Topor, other project managers, and other CAD technicians raised concerns about defendant’s work performance, complaining that defendant did not take direction, took too long to complete his assignments, and that his work lacked quality. Patrick Flynn, the area manager for Carter & Burgess, met with defendant in mid-August and expressed these concerns. Defendant thought he was doing fine at work, but he felt there were some “mind games” going on. He seemed particularly concerned with Topor. He did not want to explain.
When defendant’s performance did not improve, Flynn decided in mid-September to terminate defendant’s employment. Flynn fired defendant at a meeting attended by Elizabeth Bentley, a human resources administrative assistant. Defendant seemed surprised, asked questions and pleaded his case. He again referred to mind games. In his exit interview with Bentley, defendant specifically said he thought Topor and other CAD technicians were playing mind games. Defendant was upset with Topor and angry.
At about 1:30 a.m. on October 3, 2005, defendant’s sister Maria Nicole Wilson woke up to see defendant about a foot and a half from her face. Defendant asked to borrow her truck as he needed to move some things into storage and simplify his life. Maria gave him the keys. Defendant left his car, a black Mustang, parked at Maria’s house and left her his keys.
Maria Wilson and her husband Chad Wilson both testified at both the guilt and sanity phases of defendant’s trial. For clarity, we refer to them by their first names, meaning no disrespect.
Edward Lujan, a surveyor with Carter & Burgess, was driving into the parking lot of Carter & Burgess on October 3, 2005, when he saw out of his peripheral vision someone standing on the other side of the street wearing something like a blue jumpsuit. He then saw Topor drive into the parking lot. Lujan waved to Topor and walked into the office building.
Bruce Thomas, a facility inspector for Carter & Burgess, had arrived at the office around 6:50 a.m. on October 3, 2005. Thomas had parked in front of the office building, as did all employees, gone upstairs, turned on his computer, and made coffee. A minute or two after 7:00 a.m., Thomas went back downstairs to have a cigarette. He saw Topor arrive and park in his usual place. Topor entered the building lobby as Thomas went out. A couple of seconds later, Thomas noticed defendant near the rear of Topor’s pickup truck, coming toward the lobby. Defendant was wearing a hooded sweatshirt with the hood pulled up over his head. Defendant walked into the lobby. Before the door closed, Thomas heard Topor say in a strange voice, “I didn’t do anything.” Thomas turned back and saw Topor going down on his knees. Defendant was four or five feet from Topor, pointing what looked like an automatic pistol at Topor’s head. Thomas entered the lobby as Topor said, “Please don’t do this.”
Thinking at first it was a practical joke, Thomas walked over and asked defendant, “What the hell do you think you’re doing?” Defendant turned towards Thomas. Holding his arm straight out with the gun pointing directly at Thomas’s upper chest area, defendant looked Thomas in the eye. Thomas stood still. Defendant turned back to Topor and shot him in the head. The bullet entered through Topor’s right eye, causing multiple skull fractures and injuries to the brain, killing Topor almost instantaneously. Topor fell forward to the floor. Defendant turned, walked around Thomas, and went out the door. Thomas went outside and dialed 911. He saw defendant walking away.
Phillip Brady, a CAD technician with Carter & Burgess, arrived on his motorcycle in time to see a person coming from the front door of the office building holding a semiautomatic pistol in his hand. The person was wearing a dark hooded sweatshirt, with the hood over his head, underneath a set of blue coveralls. The person did not look at Brady and Brady did not see his face. Thomas shouted to Brady that “[h]e just shot him.” Brady looked back to see the person with the gun walking across a little grassy hill that separates the sidewalk from the parking lot. The person reached the sidewalk, stopped to pick up something from the gutter and then started jogging down the street. Brady followed the person for a distance before returning to the Carter & Burgess parking lot and office.
Sheriff’s officers responded and found Topor lying dead on the floor of the office lobby, still holding his black nylon briefcase. A .9-millimeter casing was on the floor about six feet from Topor.
When defendant’s sister Maria returned to her house around 10:30 that morning, her truck had been returned to the house and defendant’s Mustang was gone. Defendant had left some money where the keys to the Mustang had been, along with the keys to the truck. Defendant returned Maria’s phone calls around 11:00 or 11:30 a.m. and they talked for awhile. Defendant told Maria everything was fine. Maria described the call as odd, but no different than normal for defendant.
Later Maria’s husband, Chad Wilson, received a phone call from defendant. On the instruction of detectives who were at the house, Chad asked defendant where he was. Defendant gave Chad directions to his place. Defendant said everyone was calling him and telling him his face was on television. Defendant seemed puzzled and did not seem to know what was going on.
Officers responded to defendant’s residence and took defendant into custody. Officers found the .9-millimeter Beretta handgun used to shoot Topor inside a backpack on top of a table inside defendant’s home. Inside defendant’s car, officers found a Ziploc bag containing 38 live .9-millimeter bullets and a pair of black Adidas shoes with grass clippings on the soles. Defendant had purchased the handgun on August 3, 2005, and picked it up after the 10-day waiting period on August 14, 2005.
Subsequent investigation revealed defendant had driven his Mustang, after he retrieved it from Maria and Chad’s house that morning, to a Circle K 76 gas station and to a self-storage facility. Surveillance tape from the gas station showed defendant pumping gas, buying a bottle of Gatorade, telling the clerk to “have a nice day,” looking something up in a phonebook, and leaving. Surveillance tape from the storage facility showed defendant’s vehicle arriving, defendant getting something from his trunk, and defendant putting it into his storage unit. Officers found a Safeway bag containing a black T-shirt and a black hooded sweatshirt inside defendant’s storage unit. Officers found items of male clothing thrown away in garbage cans at defendant’s residence.
Sanity Phase
Defendant’s mother testified defendant was a small baby and child, but his childhood was every parent’s dream. Defendant participated in everything he could, including sports, volunteer organizations, and boy scouts. He became an Eagle Scout. He received many awards. As part of the Youth Leadership in America award, defendant traveled to Washington D.C. and met President Reagan. Defendant graduated from Christian Brothers High School, attended a prep school and then went to West Point for two years.
Defendant did not complete his education at West Point; he essentially flunked out. When he came back home, he seemed “broken.” His mother would find him sitting on the roof of their house for hours on end in the middle of the night. Sometimes he sat on the fence. He was no longer considerate and loving. He felt he had been duped by the traditions of scouting. He started thinking people were after him. He feared the CIA and being assassinated. He stayed up all night and told his mom that he could not shut his head down.
Defendant’s sister Maria described defendant when he was a boy as charming, kind, compassionate, loving, generous, gentle, talkative, a great communicator and a good listener. He was changed when he came back from West Point and was never the same again. In 1991, he came and lived with her in San Rafael, where she was going to college. Maria and defendant started using drugs. Over a six- to-eight-month period, they tried marijuana, alcohol, LSD, mushrooms, methamphetamine and cocaine.
On one occasion, defendant disappeared. He turned up almost a week later looking a mess, like he had been living off the land a long time. He had feathers in his hair. He blackened his face with a cork, burnt himself with a lighter, and rambled about numbers and birthdates. At one point he thought he was Jesus Christ. Maria panicked and called their mother, who told her to take defendant to the hospital. Defendant was admitted to Marin General Hospital, first on a 72-hour hold and then held for a further week. He was treated with antipsychotic medications and mood stabilizers for possible schizophrenia or affective disorder, bipolar disorder or schizoaffective disorder.
Defendant’s mother moved Maria and defendant from the Bay Area. She placed defendant in a drug and alcohol treatment facility in Placer County, but defendant left the facility and walked all the way back to Sacramento. Defendant’s mother placed defendant at another drug and alcohol treatment facility, where he stayed for several weeks and was treated for drugs and alcohol abuse.
Defendant continued to be obsessed with the fear that the CIA was after him. He accused his stepmother, who had worked for the CIA sometime in the past, of wiring the garage and “now the CIA was after him.” Defendant was picked up on the street in 1991 and taken to the Sacramento Mental Health Crisis Center (SMHCC), where he was treated for schizophrenia. In 1992, defendant was again involuntarily hospitalized at SMHCC for erratic behavior. In early 1993, defendant’s mother placed defendant, at his request, in another drug and alcohol facility, where he stayed for three months. Defendant was clean and sober between 1993 and 1998.
Between 1997 and 1998, defendant lived with his cousin Justine in downtown Sacramento. Defendant’s paranoia increased during this time. He talked about people at his work wanting to see him fail and wishing him ill. He became more secretive and warned Justine it might be dangerous for her to know him. He claimed to hear things on the static of the radio. He told his sister he could not shut his head up. Nevertheless, defendant was able to complete his associate’s degree at Sacramento City Junior College in 1998.
In 2000, defendant moved back to the Bay Area. He had a job and a girlfriend. In August of 2002, however, the girlfriend called defendant’s mother and told her to come get defendant from the mental health ward of Highland Hospital. Defendant returned to his mother’s home for three months. He finished his bachelor’s degree in civil engineering at Sacramento State University in 2002 and got a job at a firm called German Engineering. Defendant was laid off a year and a half later after he suffered a DUI. He moved back in with his mother.
Defendant saw a psychiatrist, who diagnosed him with schizophrenia and placed him on antipsychotic medication. Nonetheless, he was extremely paranoid, often accusing his family of calling the police on him and imagining grand plots against him. He believed he was being racially profiled by the police as a result of his Hispanic background. He could not sleep, telling his mom that he could not turn off the voices in his head.
Defendant got some temporary jobs in 2004 and 2005. In 2005, he stopped taking his medication. In June of 2005, he started working at Carter & Burgess.
Defendant believed people at Carter & Burgess were conspiring against him and mistreating him partly because of his ethnic background and partly because he had some secret information. In August 2005, defendant began tape recording background noises and conversations at Carter & Burgess. Although the conversations were not related to defendant in any way, defendant said on one recording: “August 8, 2005, Saturday evening, a little recognizance [sic] mission was planned against me and I caught it, for a hit to take my life. Now I’ll keep the private parties private for now.”
Dr. Albert Globus, a psychiatrist, was hired by the defense to conduct an evaluation of defendant’s sanity at the time he shot Topor. After reviewing the medical and police records and interviewing defendant, Globus diagnosed defendant with chronic paranoid schizophrenia since as far back as 1985. Defendant told Globus he felt persecuted by the people at Carter & Burgess, which they were out to injure him and destroy his family. Voices in defendant’s head were telling him to be afraid and to get out of the office. The voices told him the basis for his layoff from Carter & Burgess was bullshit and that staff mind games were involved. Defendant told Globus “Mr. Topor and Raider were threatening his family.” Defendant told Globus he did not have any clear memory of the events surrounding his offense.
Globus opined that defendant was legally insane at the time he murdered Topor. Globus believed defendant was acting from a motivation based on a delusional state and auditory hallucinations. Defendant felt a moral obligation to protect himself and did not understand in a moral sense that shooting Topor was wrong.
A person is legally insane when “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.” (People v. Hernandez (2000) 22 Cal.4th 512, 520; § 25, subd. (b).)
Dr. Baljit Atwal, a forensic psychologist, was appointed by the court to evaluate defendant. Atwal interviewed defendant and gave him a number of psychological tests. Atwal diagnosed defendant with paranoid schizophrenia and a dissociative amnesia. Defendant had grandiose and persecutory delusions and auditory hallucinations. Defendant told Atwal he was unable to remember the events of October 3, 2005, between the hours of 2:00 a.m. and 8:00 or 8:30 a.m., although he did vaguely remember being in the lobby of the building. Defendant told Atwal voices told him it was Topor who was the main culprit behind his firing and the one who was leading the others to support his termination. Defendant said the voices wanted him to go see a lawyer and file a lawsuit. Defendant did go to see a lawyer.
Atwal expressed the opinion that defendant met the criteria for legal insanity at the time of his crime due to his severe psychological deterioration into psychoses in the weeks and months preceding the crime. On October 3, 2005, defendant was likely in a “floridly psychotic state[.]” Atwal thought defendant did not have the ability to distinguish right from wrong because the psychotic nature of his disease was so significant it impaired his ability to process information in a realistic fashion.
Dr. Charles Schaffer, a forensic psychiatrist, was also appointed by the court to evaluate defendant. Defendant told Schaffer that he had positive feelings about Topor at the beginning of his employment, but they turned to negative feelings as he came to believe Topor was threatening his safety. Defendant initially told Schaffer he could not remember anything from 7:00 to 8:30 a.m. on October 3, 2005. Later, defendant told Schaffer he recalled fragments. He recalled being at the scene and seeing Topor. He recalled a gun going off, but did not recall holding it or pulling the trigger. He did not recall observing witnesses at the scene. His memory resumed when he went to the storage unit. Defendant told Schaffer he thought he shot Topor in self-defense.
Schaffer diagnosed defendant as suffering most likely from a bipolar disorder with psychotic features. Schaffer thought there were two other possible diagnoses; schizoid affective disorder bipolar type or schizophrenia paranoid type. Schaffer believed defendant knew the nature and quality of his acts when he shot Topor and that he understood what he did was legally wrong. Schaffer was not able to reach a conclusion on whether defendant understood what he did was morally wrong.
DISCUSSION
I.
Defense Counsel Did Not Provide Ineffective Assistance Of Counsel In Requesting Unmodified CALJIC No. 4.01
In People v. Moore (1985) 166 Cal.App.3d 540, the appellate court held that whenever requested by the defendant or jury, the trial court should give an appropriate instruction regarding the consequences of an insanity verdict to ensure the jury does not erroneously believe such a verdict will result in the immediate freeing of the defendant. (Id. at pp. 554, 556.) “CALJIC No. 4.01 was drafted in response . . . . It is intended to aid the defense by telling the jury not to find the defendant sane out of a concern that otherwise he would be improperly released from custody.” (People v. Kelly (1992) 1 Cal.4th 495, 538.) Based on defense counsel’s concerns about language in Judicial Council of California Criminal Jury Instructions (2006-2007), CALCRIM No. 3450 (Insanity and Civil Commitments), it was agreed the trial court would instruct defendant’s jury in the sanity phase of defendant’s trial with CALJIC No. 4.01.
Defendant’s argument focuses on only a portion of CALJIC No. 4.01 that informed the jury about the possible placement of a defendant found not guilty by reason of insanity in outpatient treatment. Defendant now claims ineffective assistance of counsel in defense counsel’s failure to offer a modification that would inform the jury that “placement in an outpatient treatment program was not a possible outcome unless and until five separate criteria had been met.” Defendant asserts that the jury should have been informed of the following five criteria: “(1) defendant served at least 180 days in a state mental health hospital, (2) the director of the state hospital found the defendant is no longer a danger to himself or others, (3) the director recommends that defendant will benefit from outpatient status, (4) the court has a hearing to consider the director’s recommendation as well as the circumstances of the crime and the defendant’s criminal history[,] and (5) the court approves the recommendation.” (§§ 1026, subd. (a), 1601, subd. (a), 1603, subd. (a), 1604, subds. (c) & (d).) Defendant contends that use of CALJIC No. 4.01 in his case without such a detailed description of the statutory requirements and procedures was grossly misleading and inaccurate, especially because there was evidence before the jury of his unsuccessful history in treatment.
The jury was instructed with CALJIC No. 4.01 as follows: “A verdict of ‘not guilty by reason of insanity’ does not mean the defendant will be released from custody. Instead, he will remain in confinement while the courts determine whether he has fully recovered his sanity. If he has not, he will be placed in a hospital for the mentally disordered or other facility, or in outpatient treatment, depending upon the seriousness of his present mental illness. [¶] Moreover, he cannot be removed from that placement unless and until the court determines and finds the defendant’s sanity has been fully restored, in accordance with the law of California, or until the defendant has been confined for a period equal to the maximum period of imprisonment which could have been imposed had he been found guilty. [¶] So that you will have no misunderstandings relating to a verdict of not guilty by reason of insanity, you have been informed as to the general scheme of our mental health laws relating to a defendant, insane at the time of his crimes. What happens to the defendant under these laws is not to be considered by you in determining whether the defendant was sane or insane at the time he committed his crimes. Do not speculate as to if, or when, the defendant will be found sane. [¶] You are not to decide whether the defendant is now sane. You are to decide only whether the defendant was sane at the time he committed his crimes. If upon consideration of the evidence, you believe defendant was insane at the time he committed his crimes, you must assume that those officials charged with the operation of our mental health system will perform their duty in a correct and responsible manner, and that they will not release this defendant unless he can be safely returned into society. [¶] It is a violation of your duty as jurors if you find the defendant sane at the time he committed his offenses because of a doubt that the Department of Mental Health or the courts will properly carry out their responsibilities.” (Emphasis added.)
“To establish ineffective assistance of counsel, a defendant must show that (1) counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant. [Citation.] ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ (Strickland v. Washington (1984) 466 U.S. 668, 694 [104 S.Ct. 2052, 2068, 80 L.Ed.2d 674].)” (People v. Scott (1997) 15 Cal.4th 1188, 1211-1212.)
We conclude defense counsel was not deficient in failing to object to the unmodified CALJIC No. 4.01. A series of statutes apply to outpatient treatment for a defendant found not guilty by reason of insanity. We briefly refer to several of those statutes.
Section 1026 provides that if a jury finds a defendant was insane at the time his offense was committed and the court does not find his sanity has been recovered fully, the court must direct the defendant to be confined in a state mental hospital or any other appropriate public or private treatment facility approved by the community program director, or placed on outpatient status pursuant to “Title 15 (commencing with Section 1600) of Part 2.” (§ 1026, subd. (a).) The referenced section 1600 generally authorizes outpatient status, subject to the specific procedures outlined in subsequent statutory sections. Section 1601, subdivision (a) provides for an initial period of confinement in a state hospital or other facility for a number of enumerated felonies, including murder. For those enumerated offenses, section 1603 provides further detailed requirements. For misdemeanors and felonies not described in subdivision (a) of section 1601, outpatient status may be granted prior to actual confinement upon satisfaction of the conditions listed in section 1602. (§§ 1601, subd. (b), 1602.) Section 1604 then provides additional detailed procedures applicable to both those defendants considered under the procedures of section 1602 and those considered under section 1603.
We reject the claim that a jury must be informed of all the applicable procedural prerequisites for an outpatient treatment placement under section 1600 et seq. in order for CALJIC No. 4.01 to be accurate. The purpose of the instruction is to ensure the jury does not improperly find a defendant sane based on a fear that the defendant will otherwise “walk free[.]” (People v. Moore, supra, 166 Cal.App.3d at p. 554.) The purpose is not to give the jury a detailed summary of the outpatient placement procedures and requirements, which are not relevant to the jury’s task of considering the defendant’s sanity at the time of the offense. (See People v. Hart (1999) 20 Cal.4th 546, 656 [the specific details of the Governor’s clemency power (that the jurors were told not to consider) are not relevant to jury’s death sentence determination].) CALJIC No. 4.01 adequately accomplished its purpose by telling the jury a verdict of not guilty by reason of insanity “does not mean the defendant will be released from custody[,]” informing the jury of the “general scheme” of the applicable mental health laws, including an assurance that defendant will not be released unless the appropriate officials determine “he can be safely returned into society[,]” and specifically instructing the jurors not to consider “what happens to the defendant under these laws” in deciding the defendant’s sanity at the time of his crimes. (CALJIC No. 4.01.) The instruction was adequate to advise the jurors not to consider at all what would happen to defendant if they determined he committed his crimes while legally insane.
In his reply brief, however, defendant refers us to four federal cases that he claims found jury instructional error “in an almost identical context.” (See Coleman v. Calderon (9th Cir. 2000) 210 F.3d 1047, 1050; McLain v. Calderon (9th Cir. 1998) 134 F.3d 1383, 1386, overruled in part as stated in Berryman v. Ayers (E.D.Cal., July 10, 2007, No. CV-05309-AWI) 2007 U.S. Dist. LEXIS 51738; Gallegos v. McDaniel (9th Cir. 1997) 124 F.3d 1065, 1076; Hamilton v. Vasquez (9th Cir. 1994) 17 F.3d 1149, 1162-1163.) These cases all involved a so-called “Briggs instruction” given at the request of the prosecution, which informed the jury of the Governor’s power of clemency, apparently in an effort to persuade the jury to choose death. The cases each found the instruction given was inaccurate and misleading to the circumstances present for the particular defendant because of the failure to include additional information relating to the Governor’s power of commutation in the defendant’s case.
In California v. Ramos (1983) 463 U.S. 992 [77 L.Ed.2d 1171], the United States Supreme court approved the use of what is known as a Briggs instruction. The instruction informs a jury charged with choosing between imposing a death sentence and life without possibility of parole (LWOP) of the Governor’s power to commute LWOP to a lesser sentence, possibly including parole. (McLain v. Calderon, supra, 134 F.3d at pp. 1384-1385.) The California Supreme Court has found “the Briggs Instruction violates the due process clause of the California Constitution both because it is misleading and because it invites the jury to consider speculative and impermissible factors in reaching its decision.” (People v. Ramos (1984) 37 Cal.3d 136, 159.) Unless the jury specifically inquires about the issue or the defendant makes a tactical decision to request the instruction, the instruction should not be given. (Id. at p. 159, fn. 12; People v. Beames (2007) 40 Cal.4th 907, 931.)
We are not persuaded the context of these cases is “almost identical” to the situation here. Moreover, when the holdings of these federal cases have been raised before it, the California Supreme Court has specifically stated it requires “no such detailed advice regarding judicial limitations on the Governor’s commutation power.” (People v. Martinez (2003) 31 Cal.4th 673, 698; accord People v. Beames, supra, 40 Cal.4th at pp. 932-933.) And even if a more complete explanation should have been given, the failure to provide the additional advice was “insignificant” “because the specific details of the commutation process bore no relevance to the jury’s task.” (People v. Beames, supra, at p. 933.) We reach the same conclusions here and reject defendant’s arguments. Defendant has not shown his counsel was ineffective for failing to offer a modified CALJIC No. 4.01.
II.
The Jury Instructions did not Impermissibly Lighten the Prosecution’s Burden of Proving the Elements of the Charged Offenses - Sanity is not an Element of the Charged Offenses
Defendant claims relatively recent decisions of the United States Supreme Court (Ring v. Arizona (2002) 536 U.S. 584 [153 L.Ed.2d 556] (Ring); Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi); Jones v. United States (1999) 526 U.S. 227 [143 L.Ed.2d 311]; see also Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403]) have impliedly overruled established law holding sanity is not an element of any offense. (People v. Drew (1978) 22 Cal.3d 333, 348-349, superseded by statute as noted in People v. Skinner (1985) 39 Cal.3d 765, 768-769; People v. Hernandez, supra, 22 Cal.4th at p. 522; see Leland v. Oregon (1952) 343 U.S. 790 [96 L.Ed.2d 1302] [statutes requiring defendant to prove the affirmative defense of insanity beyond a reasonable doubt were constitutional]; Evid. Code, § 522 [assigning burden of proof of insanity to defendant].)
Although not entirely clear in defendant’s brief, it appears defendant is challenging both the jury instruction providing for a presumption of sanity applicable to the guilt phase of his trial and the instructions allocating to him the burden of proving his legal insanity by a preponderance of the evidence applicable in the sanity phase of his trial. He claims the instructions impermissibly lightened the prosecution’s burden of proving the elements of the charged offenses. Thus, a determination of whether sanity is an element of the charged offenses, as defendant contends, resolves defendant’s claim of instructional error as to both phases of his trial.
In People v. Ferris (2005) 130 Cal.App.4th 773, the Fifth District Court of Appeal rejected an identical claim. (Id. at pp. 777-780.) The appellate court concluded Leland v. Oregon, supra, 343 U.S. 790 [96 L.Ed.2d 1302] was still good law after Apprendi and Ring. (Leland v. Oregon, supra, at p. 790 [96 L.Ed.2d 1302].) The court explained: “Insanity has not been characterized by the United States Supreme Court or California courts as an element of the offense; it is found to be in the nature of a defense that relieves defendant of culpability for his or her convictions. ‘An insanity plea . . . is a plea to the effect that the defendant, even if guilty, should not be punished for an offense because he was incapable of knowing or understanding the nature and quality of his or her act or of distinguishing right from wrong at the time of the offense.’ (People v. Hernandez, supra, 22 Cal.4th at p. 523.)” (People v. Ferris, supra, at p. 780.)
“Apprendi instructs that a state cannot disguise ‘elements’ by calling them enhancements or sentencing factors, when in fact they are used to impose a higher sentence than was authorized by the jury’s verdict alone. The sanity portion of a trial does not involve questions of guilt versus innocence, but involves questions of criminal responsibility versus legal insanity. A finding of sanity does not increase the maximum penalty one can receive if punished according to the facts as reflected in the jury verdict alone. Neither Apprendi nor Ring in any way impliedly overrules the decisions holding that insanity is not an element of a criminal offense.” (People v. Ferris, supra, 130 Cal.App.4th at p. 780.)
We agree with the reasoning of Ferris and on the same basis, reject defendant’s claim.
III.
The Trial Court Did Not Err In Refusing To Hold A Further Evidentiary Hearing Regarding Juror Misconduct
During the jury’s sanity phase deliberations, the trial court received a written communication from the jury raising concerns about the statements and conduct of a member of the jury, subsequently identified as Juror No. 4. The trial court conducted an evidentiary hearing and concluded Juror No. 4 had committed prejudicial misconduct. The trial court granted the prosecution’s motion to remove Juror No. 4 and replaced her with an alternate juror. Defendant does not challenge the trial court’s removal of Juror No. 4, but claims the trial court erred in refusing to hold a further evidentiary hearing to determine whether Juror No. 4 had committed prejudicial juror misconduct during the guilt phase of trial. We find no error.
A. Factual Background
On the fifth day of deliberations of the sanity phase of defendant’s trial, the jury sent a note to the trial court indicating some of members of the jury believed another member of the jury was “not able to openly discuss the evidence, and is biased against one of the parties.” This was based, according to the note, on (1) statements by the juror “about counsel’s conduct and questions that ‘pissed them off’ and ‘insulted their intelligence[,]’” (2) statements by the juror telling other members of the jury that “‘you guys are going to have problems with me in Phase 2’, prior [to] hearing all the evidence[,]” and (3) on the juror’s bringing “in typewritten notes made over the weekend.” After conferring with counsel, the trial court ruled the allegations in the communication from the jury required it to conduct an inquiry into alleged juror misconduct. The jury foreperson identified Juror No. 4 as the subject of the jury’s note. The trial court then proceeded to question each individual juror.
Juror No. 1
Juror No. 1 recalled Juror No. 4 saying something similar to “there would be a problem or could be a problem in the next phase” towards the end of the guilt phase deliberations. The comment was made to the jury as a group. Juror No. 4 also brought typewritten notes into the jury room during the sanity phase of deliberations. Juror No. 4 indicated the notes helped her collect her thoughts and were not any kind of research. She did not share them with anyone else.
Juror No. 2
Juror No. 2 stated Juror No. 4 discussed how outraged she was at the prosecutor’s closing argument and made a comment that “if you think you had trouble with me in the first phase --[.]” Juror No. 4 made these remarks as the jury was walking down the hall to the jury room to start deliberations on the sanity phase of trial and it became an issue later when it was brought up in the jury room. According to Juror No. 2, Juror No. 4 was “pissed off” by the prosecutor’s closing remarks, which she thought were rude and insulting to her intelligence. Based on that, Juror No. 4 said she pretty well knew she was “gonna have a tough time in this second half.” Juror No. 2 reported that Juror No. 4 brought four pages of notes with her into deliberations. Juror No. 4 indicated she had spent the weekend “journaling” and said the notes were just her private thoughts. Juror No. 2 did not look at the notes. Juror No. 2 said at times Juror No. 4 participated in deliberations, but repeatedly told the other jurors that they could not change her mind.
Juror No. 3
Juror No. 3 said she heard Juror No. 4 say they were going to have problems with her in phase two. Juror No. 3 was not sure of the timing, but was certain Juror No. 4 made the comment before the sanity phase was completed. Juror No. 4 made the comment on other occasions as well. Juror No. 4 made comments during the sanity phase deliberations that the way the prosecutor presented the evidence, badgered the witnesses and made faces during some of the testimony “really pissed [her] off.” Juror No. 3 confirmed Juror No. 4 brought four pages of personal notes into the jury room.
Juror No. 5
Juror No. 5 overheard Juror No. 4 say “you guys are gonna have a hard time with me” while the jury was in the hallway right after the sanity phase of trial started. When the comment was brought up during deliberations, Juror No. 4 said things “were held to a very high standard in the first phase” and “she was gonna do that with this one.” Juror No. 5 said Juror No. 4 brought notes into the jury room. Juror No. 4 indicated the notes were thoughts she had written down over the weekend. Juror No. 5 did not look at the notes. Juror No. 4 made comments about disliking the way things were handled in questioning and argument.
Juror No. 6
Juror No. 6 heard Juror No. 4 comment that they were going to have problems with her in phase two more than once. She thought Juror No. 4 made the statement before phase two started, as well as sometime after phase two started. Juror No. 6 also remembered Juror No. 4 saying, as a number of jurors were leaving the courthouse after the beginning of phase two, that “I’m not sure if I really made the right decision in phase one. I think maybe I should have changed my decision.” During deliberations for the sanity phase, Juror No. 4 brought notes into the jury room. She said they were her thoughts; her attempt at journaling. Juror No. 6 did not read the notes. Juror No. 6 also recalled a statement by Juror No. 4 offered as a justification or motive for defendant’s crime that “I understand what it’s like to be gay in the military[.]”
Juror No. 7
Juror No. 7 overheard Juror No. 4 comment that “you’re going to have problems with me in phase two.” Juror No. 7 was not sure when she heard the comment, but thought it was during the middle of the sanity phase, before deliberations for that phase. It might have been at the end of phase one. Juror No. 4 made comments about the prosecution insulting their intelligence. She was angry with the prosecutor for not proving certain things in phase two. Juror No. 4 did not appear open to discussion of the case because of her anger. Juror No. 4 brought in notes she had written up over the weekend. Juror No. 7 browsed them a little bit. They did not appear to be research. They looked more like Juror No. 4’s personal thoughts.
Juror No. 8
Juror No. 8 also heard Juror No. 4 say “you’re gonna have problems with me in regards to the second phase of this trial.” The comment was made while the jurors were in the deliberation room right near the end, if not at the end, of phase one. During sanity phase deliberations, Juror No. 4 said she did not like the way the prosecutor questioned witnesses, especially Atwal. She thought the gestures the prosecutor made when defense counsel was questioning Atwal “treated her with disrespect.” Juror No. 8 confirmed Juror No. 4 brought in four pages of notes reflecting her thoughts about the case. Juror No. 8 did not read the notes. Juror No. 4 also made a comment two or three days into the sanity phase deliberations that she “still questioned the assault felony charge from phase one.”
Juror No. 9
Juror No. 9 heard Juror No. 4 make a statement that the People “will have a tough time in proving their case.” Juror No. 9 thought the statement was made in the deliberation room after the jury made its decision on phase one or it could have been made in the hallway soon after phase one. Juror No. 4 was mad at the prosecutor. She said something to the effect that “she did not live up to my expectation[s].” Juror No. 4 brought in notes that she said were her personal thoughts, but Juror No. 9 did not look at them.
Juror No. 10
Juror No. 10 did not personally hear Juror No. 4 make the statement about the other jurors having problems with her in phase two, but when it was brought up during the sanity phase deliberations, Juror No. 4 said the statement was being taken out of context. Juror No. 10 did not view any notes brought in by Juror No. 4.
Juror No. 11
Juror No. 11 said Juror No. 4 made the comment that they were going to have problems with her in phase two when they were in the jury room during deliberations for phase one after they had already made their decision. When Juror No. 11 challenged the comment, Juror No. 4 denied she had made it. Juror No. 11 also challenged Juror No. 4 on bringing in her notes. Juror No. 11 looked at the first page of the notes and thought they looked like her personal thoughts.
Juror No. 12
Juror No. 12 said Juror No. 4 made the comment about them having problems with her in phase two while the jury was in the jury room during phase one of the trial. Juror No. 12 confirmed Juror No. 4 said she was upset with the prosecutor. Juror No. 4 brought notes into the jury room, but Juror No. 12 did not look at them.
Juror No. 4
When questioned by the trial court, Juror No. 4 denied making the statement that “you guys are going to have problems with me in phase two” prior to hearing all the evidence. She said she may have said something similar, but she did not say anything that meant that. Juror No. 4 said that “during phase one I had a different opinion than many people on the jury, and . . . what I was trying to say was that the other side had the burden of proof, and, you know, maybe we would be closer on the same page.” Juror No. 4 said she probably made comments about the prosecutor during the second phase, but denied they were personal. Juror No. 4 admitted making the statement about knowing what it is like to be gay in the military. She said she was making a personal reference to some of the evidence that defendant was perceived to be gay when he was at West Point. Juror No. 4 said she had been in the military, that she is gay, and she was not treated very well in the military once that came out. Juror No. 4 said the notes she brought in were not research, but were basically a journal. She denied making comments outside the jury room. She denied making comments about holding the prosecution to a high standard of proof in phase two or that the People would have a tough time proving their case.
The trial court found Juror No. 4’s denials were not credible based on the trial court’s observation of her demeanor and attitude. The trial court found the other jurors’ statements to be “forthright and credible.” According to the trial court, the information received from the other jurors indicated Juror No. 4 “repeatedly and systematically failed to follow the law as follows:
“Number one: Juror Number Four violated the Court’s order by talking about phase two of the case, both before and during phase two of the trial. She did so on more than one occasion, including in the deliberation room in phase two and as she was leaving the courtroom in phase two during a recess in phase two.
“Number two: By repeatedly making statements to the effect that she would cause a problem with the other jurors during phase two, Juror Number Four violated her duty to keep an open mind throughout the trial. She violated her duty to keep an open mind about the verdict or any issue until after she discussed the case with the other jurors during deliberations. Juror Number Four disregarded the Court’s daily admonitions not to form or express an opinion on the case.
“Number three: Juror Number Four violated her duty to refrain from letting bias, sympathy or prejudice influence her decision. Juror Number Four exhibited personal animus and prejudice towards the prosecutor. Further, Juror Number Four expressed bias, sympathy and prejudice towards the defense by indicating that she knew what it was like to be gay in the military, based on her supposition that the Defendant had been similarly situated, despite the fact that no evidence regarding Defendant’s . . . sexual orientation was presented.
“Number four: Although Juror Number Four did deliberate pro forma to the extent that she engaged in discussions with the other jurors about the facts of the case, the evidence is overwhelming that she did so solely for the purpose of advancing an opinion which she had arrived at before phase two of the trial had even commenced. The unusual decision of Juror Number Four to produce and bring to the jury room four typewritten pages that she described as a journaling of her thoughts further evidences solitary deliberations.
“Number five: Juror Number Four made untruthful statements to the Court.”
The trial court granted the prosecution’s motion to remove Juror No. 4 and replaced her with one of the alternate jurors. Defendant requested that before Juror No. 4 was released she be questioned “about her verdict in phase one, whether or not that was her true and correct verdict.” The trial court responded that Juror No. 4 was polled with the other jurors in phase one and that she “did indicate, based on the polling, that that was her true and correct verdict.” Defendant suggested that “we now have evidence that it may not have been.” The trial court disagreed, stating “I don’t think that there’s evidence that that was not her true and correct verdict.”
At judgment and sentencing, defendant made a motion for new trial of the entire trial based on Juror No. 4’s misconduct. Defendant indicated “there was some evidence that the misconduct may have occurred during the first phase of the trial.” The trial court denied defendant’s motion.
B. Analysis
“We review for abuse of discretion the trial court’s denial of defendant’s postverdict request for an evidentiary hearing into allegations of jury misconduct. [Citations.] When a trial court is aware of possible juror misconduct, it must make whatever inquiry is reasonably necessary, but ‘only when the defense comes forward with evidence that demonstrates “a strong possibility” of prejudicial misconduct.’ [Citations.] ‘Even upon such a showing, an evidentiary hearing will generally be unnecessary unless the parties’ evidence presents a material conflict that can only be resolved at such a hearing.’ [Citation.]” (People v. Carter (2003) 30 Cal.4th 1166, 1216; accord People v. Brown (2003) 31 Cal.4th 518, 581; see also People v. Hedgecock (1990) 51 Cal.3d 395, 415 .)
The trial court found Juror No. 4 committed juror misconduct in five ways, but each of them related solely to the sanity phase of defendant’s trial. Although there was evidence that Juror No. 4 did not keep an open mind about the sanity phase, in fact making up her mind about the sanity phase at the end of the guilt phase, possibly at the end of deliberations in the guilt phase, there is no evidence that any of Juror No. 4’s misconduct related to the jury’s decision of guilt in the first phase of trial. As the trial court noted, the jurors were polled regarding the verdicts in the guilt phase of trial and, along with the others, Juror No. 4 confirmed each verdict was her true and correct verdict. The evidence before the trial court did not demonstrate “a strong possibility” of prejudicial juror misconduct regarding the guilt phase. (People v. Carter, supra, 30 Cal.4th at p. 1216.)
Defendant claims, however, “there is a genuine risk Juror [No. 4] may have voted for guilt too easily under the view that she would find [defendant] insane at the sanity phase.” Defendant points us to the comments of Juror No. 6 and Juror No. 8. Juror No. 6 remembered Juror No. 4 saying, as a number of jurors were leaving the courthouse after the beginning of phase two, that “I’m not sure if I really made the right decision in phase one. I think maybe I should have changed my decision.” Juror No. 8 noted Juror No. 4 made a comment two or three days into the sanity phase deliberations that she “still questioned the assault felony charge from phase one.”
We are not convinced these comments reflect a lack of firm decision by Juror No. 4 as to her guilt phase verdicts. Rather, it seems likely that Juror No. 4’s comments were a reflection of her dissatisfaction with the course of the sanity phase proceedings. That is, in light of those subsequent events, she was wishing something different had happened in the guilt phase. This is not strong evidence of any misconduct by her in the guilt phase.
However, even if defendant’s construction of the comments is accurate, a fundamental problem exists with his argument. Defendant is relying on Juror No. 4’s comments to speculate as to what Juror No. 4’s mental processes were in reaching her verdicts during the guilt phase. But a jury verdict may not be impeached by inquiry into the jurors’ mental processes. (People v. Steele (2002) 27 Cal.4th 1230, 1260-1261, 1264; People v. Blau (1956) 140 Cal.App.2d 193, 217; see also Evid. Code, § 1150 [no evidence is admissible concerning the mental processes by which a verdict was determined].) As an inquiry into the reasons for Juror No. 4’s verdicts in the guilt phase was prohibited, there was no reason to hold an evidentiary hearing regarding them.
Therefore, the trial court did not abuse its discretion in refusing to hold a further evidentiary hearing into juror misconduct when Juror No. 4 was removed during the sanity phase deliberations and by denying defendant’s subsequent motion for mistrial based on her misconduct.
IV.
Sufficient Evidence Supports Defendant’s Assault Conviction
Defendant contends substantial evidence does not support his conviction for assault of Thomas because there was no evidence of his intent to harm Thomas. We reject his claim.
Although this court has criticized the reasoning (People v. Wright (2002) 100 Cal.App.4th 703), we are bound by People v. Williams (2001) 26 Cal.4th 779 (Williams). In Williams, our Supreme Court held that assault does not require “a specific intent to cause injury or a subjective awareness of the risk that an injury might occur.” (Id. at p. 790.) On the contrary, it requires only “an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.” (Ibid.)
In reviewing the record for evidence of defendant’s mental state, we follow the usual rules for a challenge to the sufficiency of evidence. We examine the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence--evidence that is reasonable, credible and of solid value--from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Romero (2008) 44 Cal.4th 386, 399.)
Here, Thomas interrupted defendant as he was about to shoot Topor. Defendant turned towards Thomas. Holding his arm straight out with the gun pointing directly at Thomas’s upper chest area, defendant looked Thomas in the eye. When Thomas stood still, defendant turned back to Topor and shot him in the head. A reasonable inference from this evidence is that defendant would have shot Thomas if he had continued to interfere with defendant’s principal objective of killing Topor. Thus, contrary to defendant’s claim, there was sufficient evidence to show defendant intended to harm Thomas. Certainly this evidence more than amply meets the standard announced by Williams. (See People v. Colantuono (1994) 7 Cal.4th 206, 219 [presenting a gun at a person who is within its range is an assault]; People v. Miceli (2002) 104 Cal.App.4th 256, 269 [pointing a loaded gun in a threatening manner at another constitutes an assault].)
V.
The Lying-In-Wait Special Circumstance Does Not Violate Due Process
Defendant contends the lying-in-wait special circumstance (§ 190.2, subd. (a)(15)) is unconstitutionally vague, violating federal and California standards of due process, because it fails to distinguish lying in wait from any other intentional killing. Defendant’s claim has been rejected by the California Supreme Court (People v. Morales (1989) 48 Cal.3d 527, 557; see People v. Stevens (2007) 41 Cal.4th 182, 203-204) and the federal Ninth Circuit Court of Appeals. (Houston v. Roe (9th Cir. 1999) 177 F.3d 901, 907-908.) We are bound by California Supreme Court precedent (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455) and similarly reject defendant’s claim.
Defendant recognizes this court is bound by Supreme Court precedent, but raises this claim to preserve it for further review.
VI.
The Lying-In-Wait Special Circumstance Does Not Violate The Eighth Amendment
Defendant contends that even if the lying-in-wait special circumstance does not violate due process, it is unconstitutionally vague in violation of the Eighth Amendment. Again, this claim has been repeatedly rejected by the California Supreme Court. (E.g., People v. Lewis (2008) 43 Cal.4th 415, 515-516; People v. Nakahara (2003) 30 Cal.4th 705, 721; People v. Edelbacher (1989) 47 Cal.3d 983, 1023; see also Morales v. Woodford (9th Cir. 2003) 388 F.3d 1159, 1174-1178.) We too reject the claim. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
DISPOSITION
The judgment is affirmed.
The trial court is directed to amend the abstract of judgment to reflect defendant’s assault with a firearm conviction was count two, not count one, and that the enhancement found true for such conviction is section 12022.5, subdivision (a), instead of subdivision (a)(1). The trial court shall forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: NICHOLSON , Acting P.J. ROBIE , J.