Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F09015
ROBIE, J.
Defendant Wisdom Akwafo Ofoe pled no contest and not guilty by reason of insanity to a charge of first degree murder with a lying-in-wait special circumstance for stabbing his wife to death. The jury found he was not legally insane at the time of the offense, and the court sentenced him to life in prison without the possibility of parole.
On appeal, defendant contends the trial court violated his federal constitutional rights by instructing the jury that he had to prove he was insane at the time of the offense. Defendant also contends his trial attorney was ineffective because: (1) counsel failed to produce expert testimony he promised he would produce during his opening statement; and (2) counsel requested an instruction that told the jury defendant could be placed in outpatient treatment if the jury found him insane.
We conclude defendant’s constitutional rights were not violated by the court’s instruction on the burden of proof and defendant has failed to prove he received ineffective assistance of counsel. Accordingly, we will affirm the judgment.
DISCUSSION
I
Constitutionality Of The Presumption Of Sanity
The trial court instructed the jury that “defendant must prove that it is more likely than not that he was legally insane when he committed the crime.” Defendant contends this instruction violated his federal constitutional rights. Defendant is wrong.
California law provides that “[i]n any criminal proceeding, including any juvenile court proceeding, in which a plea of not guilty by reason of insanity is entered, this defense shall be found by the trier of fact only when the accused person proves by a preponderance of the evidence that he or she was 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.” (Pen. Code, § 25, subd. (b); see also Evid. Code, § 522.)
All further statutory references are to the Penal Code unless otherwise indicated.
More than 50 years ago, in Leland v. Oregon (1952) 343 U.S. 790 [96 L.Ed. 1302], the United States Supreme Court held that an Oregon statute requiring a criminal defendant to prove insanity beyond a reasonable doubt did not violate due process. Defendant acknowledges Leland but contends it should not be followed because of more recent decisions by that court -- including Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435]. According to defendant, under Apprendi and related cases, any “fact which the prosecution must prove in order to convict a defendant” must be proved by the state beyond a reasonable doubt and sanity is one such fact.
Defendant misreads the Apprendi decision. The United States Supreme Court did not hold in Apprendi -- or in any other decision defendant cites -- that the United States Constitution requires the state to prove beyond a reasonable any “fact which the prosecution must prove in order to convict a defendant” -- as defendant puts it -- or any fact necessary to punish a defendant for a crime. What the court held in Apprendi was that under the Fourteenth Amendment, “‘any fact (other than prior conviction) that increases the maximum penalty for a crime must be . . . submitted to a jury, and proven beyond a reasonable doubt.’” (Apprendi v. New Jersey, supra, 530 U.S. at p. 476 [147 L.Ed.2d at p. 446].)
The fact of sanity does not “increase[] the maximum penalty for a crime” within the meaning of Apprendi. As this court explained in People v. Severance (2006) 138 Cal.App.4th 305, “‘a finding of insanity under California law “is dispositive only on the question of whether the accused is to be held criminally responsible for committing the charged offense[,] it is not determinative of whether the elements of the offense, and thus the criminal conduct itself, have been established.”’” (Id. at p. 318, quoting People v. Hernandez (2000) 22 Cal.4th 512, 529 (conc. opn. of Brown, J.).) And as the Fifth Appellate District explained in People v. Ferris (2005) 130 Cal.App.4th 773, “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.” (Id. at p. 780.) We agree with the Ferris court -- and disagree with defendant -- that Apprendi did not “overrule[] the decisions holding that insanity is not an element of a criminal offense.” (Ferris, at p. 780.) Accordingly, defendant’s claim of instructional error fails.
II
Ineffective Assistance Of Counsel
“To show ineffective assistance of counsel, defendant has the burden of proving that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been different.” (People v. Kelly (1992) 1 Cal.4th 495, 519-520.) “If a defendant has failed to show that the challenged actions of counsel were prejudicial, a reviewing court may reject the claim on that ground without determining whether counsel’s performance was deficient.” (People v. Kirkpatrick (1994) 7 Cal.4th 988, 1008.) “‘A reasonable probability [of a different result] is a probability sufficient to undermine confidence in the outcome.’” (People v. Maury (2003) 30 Cal.4th 342, 389.)
Here, defendant asserts his trial counsel was ineffective for two different reasons. We address each of those arguments in turn.
A
Failure To Produce Testimony Referenced In Opening Statement
In his opening statement, defense counsel represented to the jurors that they would hear testimony from three doctors who examined defendant. According to defense counsel, two of the doctors (Hassan and Edwards) would testify that at the time of the offense defendant suffered from a mental disease, defect, or disorder. Counsel explained it was “unclear” what the testimony of the third doctor (Temporini) would be on that point, because in his report Dr. Temporini “said that if [defendant] suffered from a mental disease, defect of disorder, it would be X, and he labeled what that disorder is.” Nonetheless, counsel interpreted Dr. Temporini’s report as concluding defendant did suffer from a mental disease, defect, or disorder because “the way it’s written and the way I read it, he’s saying that, yes, [defendant] did at the time.”
Defense counsel then represented, “You’ll hear Dr. Hassan say that, yes, this mental disease, defect or disorder caused [defendant] not to be able to distinguish” between right and wrong. He represented that Dr. Edwards would testify “that [defendant] could distinguish between right and wrong, however, that ability to distinguish between right and wrong was overruled by the mental disease, defect or disorder.” Finally, defense counsel admitted that Dr. Temporini would testify that defendant could distinguish between right and wrong.
At trial Dr. Temporini testified that at the time of the offense, defendant was suffering from “adjustment disorder with mixed disturbance of emotions and conduct.” He testified that adjustment disorder does “not qualify as a mental disease or defect for purposes of an insanity defense.” Dr. Temporini also testified that, in his opinion, defendant had the capacity to distinguish between right and wrong at the time of the offense. Neither Dr. Edwards nor Dr. Hassan testified at trial.
Defendant contends that “defense counsel’s promise in opening statement to produce specific testimony, and his complete failure to produce that evidence” amounted to ineffective assistance of counsel. We disagree, because even assuming counsel’s actions fell below an objective standard of reasonableness, defendant has failed to show there is a reasonable probability that, but for counsel’s actions, the result would have been different.
As we have noted, a defendant claiming ineffective assistance of counsel bears the burden of proving he was prejudiced by his attorney’s actions. Where defense counsel promises in his opening statement to produce certain evidence favorable to the defendant, but then fails to do so, prejudice can be shown by establishing what the foregone evidence would have been and how it would have aided the defendant. (See, e.g., Harris v. Reed (7th Cir. 1990) 894 F.2d 871, 879 [defendant carried burden of proving prejudice by showing “that the testimony of [two witnesses who did not testify] would have greatly aided his case”].)
Here, in support of his argument that “[c]ounsel’s failure to produce the evidence he repeatedly promised in opening statements undermines confidence in the outcome of trial,” defendant makes no attempt to inform us what the testimony of Dr. Hassan and/or Dr. Edwards would have been had defense counsel called them to testify. Nor could he do so, because “prejudice must be affirmatively proved” and “the record must demonstrate ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’” (People v. Maury, supra, 30 Cal.4th at p. 389, italics added.) Here, the record does not demonstrate a reasonable probability of a different result if Dr. Hassan and/or Dr. Edwards had testified because the record does not show what their testimony would have been. That is why a claim of ineffective assistance of counsel based on the failure to produce certain evidence is more effectively raised in a petition for a writ of habeas corpus -- as it was in Harris -- than on direct appeal, because in support of such a petition the defendant can actually produce the evidence his trial attorney failed to produce, in order to show that the production of that evidence probably would have made a difference.
We cannot simply assume that the testimony of the two doctors would have been what defense counsel represented it would be during his opening statement. To show prejudice resulting from ineffective assistance, defendant needs to produce evidence of what their testimony would have been, which he cannot do on this appeal. Indeed, the need for such evidence makes this the sort of ineffective assistance of counsel claim that is better raised by means of a petition for writ of habeas corpus. (See People v. Waidla (2000) 22 Cal.4th 690, 744 [in some instances, a claim of ineffective assistance of counsel “must be raised, if at all, ‘by petition for writ of habeas corpus’ [citation], which is not limited to the record on appeal’s four corners [citation], ‘rather than [on] appeal’ itself”].)
Because defendant has not shown us what the omitted testimony would have been, he has not carried his burden of proving that testimony would have made a difference. Accordingly, this aspect of his ineffective assistance claim fails.
B
Jury Instruction Regarding Outpatient Treatment
The trial court instructed the jury with CALJIC No. 4.01, relating to the effect of a verdict of not guilty by reason of insanity.
Defendant quotes only a small portion of the instruction in his opening brief. The instruction, in its entirety, was as follows:
On appeal, defendant contends he received ineffective assistance of counsel related to the giving of this instruction because it “vastly understated the considerable hurdles to outpatient status.” According to defendant, “this instruction made it seem as if defendant could simply be released back in public,” and “there was no legitimate reason for defense counsel to have requested an instruction which so significantly understated the hurdles of outpatient status.” We are not persuaded.
Under section 1600, it is generally true that “[a]ny person committed to a state hospital or other treatment facility under the provisions of Section 1026 [i.e., based on a verdict of not guilty by reason of insanity] may be placed on outpatient status from that commitment subject to the procedures and provisions of this title.” (Italics added.) The statutes that follow contain a number of requirements that must be satisfied before a person found not guilty of murder by reason of insanity can be placed on outpatient status, including these:
(1) the person must have “actually been confined in a state hospital or other facility for 180 days or more after having been committed” (§ 1601, subd. (a));
(2) “[t]he director of the state hospital or other treatment facility to which the person has been committed [must have] advise[d] the committing court and the prosecutor that the defendant would no longer be a danger to the health and safety of others, including himself or herself, while under supervision and treatment in the community, and will benefit from that status” (§ 1603, subd. (a)(1));
(3) “[t]he community program director [must have] advise[d] the court that the defendant will benefit from that status, and [must have] identifie[d] an appropriate program of supervision and treatment” (§ 1603, subd. (a)(2)); and
(4) after considering “the circumstances and nature of the criminal offense leading to commitment and . . . the person’s prior criminal history,” the court, following a hearing, must have “approve[d] . . . the recommendation for outpatient status” (§ 1604, subds. (c) & (d)).
In defendant’s view, because the instruction did not inform the jury of the foregoing requirements, “the instruction was grossly inadequate” and “there was no legitimate reason for defense counsel to have requested [it].” We disagree. As we have noted, defendant failed to quote the entire instruction in his brief, and thus his argument is based on an incomplete picture of what the jury was told. Considered as a whole, the instruction provided assurance to the jury that defendant would not be released from custody simply because the jury found him not guilty by reason of insanity, but at the same time the instruction told the jurors they were not to consider what might happen to defendant if they found him insane at the time of the offense. Given this latter fact, we do not agree that a reasonably prudent attorney would have insisted that the instruction contain more detail about how difficult it would be for defendant to be placed on outpatient status or else have opposed the instruction altogether. As given, the instruction served the laudable purpose of preventing the possible miscarriage of justice that could result if the jury determined to find defendant sane simply because they feared he would otherwise be immediately released from custody (see People v. Moore (1985) 166 Cal.App.3d 540, 555), and thus it was reasonable for defense counsel to request it. At the same time, since the jury was not entitled to actually consider how defendant would be treated under the mental health laws in determining whether he was sane or insane at the time he committed his crime, defense counsel could have reasonably determined that any further detail regarding outpatient placement would not have materially assisted defendant.
In any event, even if we were to assume that counsel’s failure to request a more detailed instruction on the effects of a finding of not guilty by reason of insanity as it related to placement on outpatient status fell below an objective standard of reasonableness, we would conclude that defendant has (once again) failed to show there is a reasonable probability that, but for counsel’s actions, the result of the trial would have been different. According to defendant, “had the jury been properly instructed on the hurdles to outpatient therapy,” the evidence at trial “would have suggested [to the jury] the extreme unlikelihood that [defendant] would receive outpatient treatment.” He goes on to suggest that had the jury known of the extreme unlikelihood that he would be placed on outpatient treatment, it is reasonably probable they would have found him insane. According to defendant, “advising the jury [he] could be placed in outpatient treatment effectively told the jury the only way it could keep [him] off the streets was by finding him sane.”
We must emphasize again that defendant’s argument is based on a failure to quote the entire instruction. As we have noted, the instruction as a whole told the jurors they could not consider what might happen to defendant under the mental health laws. Defendant’s argument, however, rests on the premise that the jury must have done so. In his view, the jurors must have made the determination they did because they feared defendant would be placed on outpatient status, and therefore if they had been told of the requirements for defendant being placed on outpatient status, they probably would have reached a different verdict. There is nothing in the record, however, to sustain such a conclusion. Neither the length of the jury’s deliberations nor the jury’s request to have certain testimony read back is suggestive of the fact that the jury was concerned about defendant’s possible placement on outpatient status. On this record, defendant has failed to prove that instructing the jury what would be required for defendant to be placed on outpatient status probably would have made a difference in the result of the sanity trial.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P. J., NICHOLSON, J.
“A verdict of not guilty by reason of insanity does not mean the defendant would 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 outpatient treatment, depending on 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 of 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 this crime.
“Do not speculate as to if or when the defendant will be found sane. You are not to decide whether the defendant is now sane. You are only to decide whether the defendant was sane at the time he committed his crime.
“If upon consideration of the evidence you believe that the defendant was insane at the time he committed the crime, you must assume that those official[s] charged with the operation of our mental health system will perform their duty in their correct and responsible manner, and that they will not release this defendant unless he can be safely returned into society.
“It’s a violation of your duty as jurors if you find the defendant sane at the time he committed this offense because of a doubt with [sic] the department of mental health, or the courts will properly carry out their responsibilities.”