Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RIF134882 Paul E. Zellerbach, Judge.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr. and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P.J.
Defendant pled guilty to first degree murder (Pen. Code, § 187, subd. (a)), during which he used a deadly weapon (§ 12022, subd. (b)(1)). He also admitted having suffered a prior conviction for which he served a prison sentence (§ 667.5, subd. (b)). In bifurcated proceedings, a jury determined that defendant was sane at the time of the crime. Defendant was sentenced to prison for 25 years to life, plus two years and appeals claiming his requested jury instruction was erroneously rejected by the trial court and he was improperly denied closing argument by the trial court or his trial attorney was incompetent by failing to request it. We reject his contentions and affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
Facts
On April 15, 2004, defendant, dressed like a construction worker so he would not “stick out like a sore thumb, ” drove in a rented car to the parking lot of a club store near construction sites. He walked several blocks to where the construction sites were and waited there for about an hour. He asked the victim, a total stranger, for a ride to a discount store. The victim drove to behind the discount store and stopped his truck at defendant’s direction. Defendant then attacked the victim, who tried to deflect the blows and get away from defendant, and killed him by repeatedly hitting him with a hatchet which he had in the tool belt he was wearing. Defendant jumped into the victim’s truck and told the discount store manager that another person who was armed was trying to rob him or take his truck and had just fled the scene. He drove to the front of the store, parked the victim’s truck and asked a customer for a ride to a mall, saying he was supposed to meet his wife there. At the mall, defendant got a haircut and cleaned up his face, which had been injured during the attack. He boarded a bus that stopped at the discount store where he had killed the victim. Defendant saw the after-effects of his crime, then walked back to his rental car and left.
Defendant claimed he killed the victim because God had given him the ability to distinguish good people from evil and the victim was evil and defendant, as God’s seventh son, had been mandated by God to eliminate evil. Defendant insisted that he was not mentally ill and until trial began, he refused to allow a psychologist to interview him.
Defendant saw his girlfriend on April 17, but said nothing about the killing or his mission to rid the world of evil in the manner he employed.
A psychologist called by the prosecution opined that defendant was not insane at the time of the crime and a psychologist called by the defense opined that he was.
Issues
1. Requested Jury Instruction
The jury was given the following instruction on sanity: “The defendant was legally insane if: One, when he committed the crime he had a mental disease or defect; and, two, because of that disease or defect, he did not know or understand the nature and quality of his act or did not know or understand that his act was morally or legally wrong.”
Defendant requested that the following instruction also be given: “Once the existence of a delusional system has been proved, the trier of fact must look to the nature of the delusion and its relationship to the crime to determine whether insanity has been proved. In other words, the delusion and its effect on sanity must be judged as if its contents were real. If under that assumption the delusionary material would constitute justification for the crime, the defendant is insane.” The trial court refused to give this instruction. Defendant here contends that this, or the trial court’s failure “to craft an instruction regarding delusions and insanity, ” was prejudicial error. We disagree.
The proffered instruction adds nothing to the task the jury had to perform-neither would have any instruction “craft[ed by the trial court] regarding delusions and insanity.” If, as a result of a delusion, the defendant did not either know or understand the nature and quality of his act or did not know or understand that his act was morally or legally wrong, then the jury had only to apply the instruction that was given to determine that he was insane and not responsible for the murder. The only thing the proffered jury instruction, or one the trial court could have crafted, added was the notion that a delusion could be viewed as or constituted a mental disease or defect. However, defendant points to nothing in the record that suggested otherwise to the jury-in fact, in his statement of facts, he points out that the psychologist called by the prosecution testified that defendant’s “major mental illness... [¶]... [¶]... of a delusional disorder” met the first requirement in showing insanity, i.e., that defendant had a mental disease or defect. This opinion was echoed by the defense’s psychologist. During his argument to the jury, defense counsel continually asserted that if defendant was delusional, he was insane. During her argument to the jury, the prosecutor conceded that it was “apparent” that defendant “is suffering from a mental disease or defect, paranoid delusions[.]” However, she argued that defendant failed to establish that he was insane because he did not prove the second prong of the test, i.e, that he did not know or understand the nature and quality of his act or did not know or understand that it was morally or legally wrong. Additionally, the instruction that was given did not include delusions in its list of things that did not constitute a mental disease or defect.
See text at page nine, infra.
The cases defendant cited below, and which he again cites here, in support of the proffered instruction, People v. Skinner (1985) 39 Cal.3d 765, 781 (Skinner), People v. Nash (1959) 52 Cal.2d 36, 45 (Nash) and People v. Hubert (1897) 119 Cal. 216 (Hubert), merely state the unremarkable proposition that the insanity defense is available to a defendant whose mental illness causes an insane delusion that renders the defendant incapable of appreciating that his or her act is wrong. However, defendant cites to nothing in the record before this court that prohibited this jury from basing a finding of insanity on defendant’s delusion. Moreover, these cases do not support the assertion that the proffered instruction or one similar to it crafted by the trial court should have been given in addition to the one that was.
Specifically, in Skinner, the holding was that Proposition 8, which, on the surface appeared to require a defendant claiming insanity to be incapable of both knowing or understanding the nature and quality of his or her acts and of distinguishing right from wrong, could not be so read. (Skinner, supra, 39 Cal.3d at pp. 765, 769.) Skinner also concluded that insanity was established if the defendant knew his act was unlawful, but believed it was morally right. (Id. at pp. 778-780, 783.) The trial court had concluded that that the defendant knew the nature and quality of his act, but his schizophrenia produced a delusion that left him unable to distinguish moral right and wrong. (Id. at p. 770.) The court’s comment about delusions was part of its review of California case law on insanity that supported its conclusion that the defendant was entitled to entry of a judgment of not guilty by reason of insanity because he was unable to appreciate the moral wrongfulness of his act. (Id. at pp. 770, 781, 784.) In a footnote, the court noted that application of the insanity defense to insane delusions, which it called a “type of mental illness” was anticipated by the framers of the M’Naghten test, who distinguished between a delusion in which the defendant believes his victim is about to kill him, so he kills the victim in self defense, and the defendant who believes his victim has injured his character or financial well-being, so he kills him for revenge, the latter of which does not suggest that defendant believed his act was lawful or morally justified. (Skinner, at p. 781, fn. 13.) However, as we have stated, defendant points to nothing that prohibited this jury from considering his delusional state in determining whether he was insane.
M’Naghten’s Case (1843) 8 Eng.Rep. 718 (M’Naghten).
In Nash, supra, 52 Cal.2d 36, 54, the court rejected the defendant’s attack on the M’Naghten rule. In describing the case law history of the insanity defense, the court merely stated that Hubert, supra, 119 Cal. 216, adopted from M’Naghten the following test, “‘If the defendant had certain special delusions which completely possessed him but was perfectly sane on all other subjects, ... then he must be judged as though the facts with respect to which the delusions exist were real.’” (Nash, at p. 45.) It went on to note that the holding of Hubert was that the irresistible impulse test had been rejected in that even if defendant acted under irresistible impulse, if he had “‘the requisite knowledge as to the nature and quality of the act, and of its wrongfulness [, ]’” he would be liable for his acts. (Nash, at p. 45.)
In Hubert, supra, 119 Cal. 216, the court commented, in dicta, that if the defendant showed that he was partially insane, i.e., insane as to a few matters but sane as to all other matters, the prosecution was free to introduce evidence of his sanity as to all matters, because the extent of defendant’s insanity then became an issue. (Id. at p. 221.) The court added, “If the defendant had certain special delusions which completely possessed him, but was perfectly sane on all other subjects, ... then he must be judged as though the facts with respect to which the delusions existed were real” citing M’Naghten. (Hubert, at p. 221.) However, the court went on to conclude, “There is no evidence tending to establish a delusion as to facts which, if the facts had been as he believed they were, would constitute such jeopardy as would justify the homicide.” (Id. at p. 222.) Skinner, supra, 39 Cal.3d at page 781, noted that Hubert had concluded that an instruction given in the latter case that defendant was, indeed, laboring under an insane delusion that prevented him from knowing the difference between right and wrong, was erroneous because “it took from the jury the factual issues as to the existence of the delusions” and there could be no question that the test for insanity applied to delusions that rendered the defendant incapable of appreciating the wrongfulness of his or her conduct. (Skinner, at p. 781.) As stated before, there is nothing remarkable about this proposition and the instruction given this jury did not foreclose it.
We disagree with the People that the proffered instruction was like the instruction condemned in Hubert that directed the jury to find that defendant suffered from delusions that rendered him insane. The proffered instruction did not direct the jury to find that defendant suffered from such delusions.
Skinner also rejected the People’s argument in that case that Proposition 8 “was intended to ‘clarify’ the meaning of the right/wrong prong of the... M’Naghten test by establishing that the ‘wrong’ which the defendant must comprehend is a legal, rather than a moral wrong. Under this formulation this defendant, who was able to recognize that his act was unlawful, would not escape criminal responsibility even though he believed his act was commanded by God.” (Skinner, supra, 39 Cal.3d. at p. 778.) Skinner went on to cite a number of cases holding that “a defendant who could comprehend that his act was unlawful could not be legally insane.” (Id. at pp 778-780.) Defendant, in his opening brief, cites additional cases holding that legal and moral wrongfulness are not always the same and a defendant may establish his insanity by showing he could not distinguish between moral right and wrong. (People v. Stress (1988) 205 Cal.App.3d 1259 (Stress), 1275; People v. Coddington (2000) 23 Cal.4th 529, 608 (Coddington).) Defendant asserts that this portion of the holding in Skinner, and the holdings in Stress and Coddington “stand for the proposition that a trial court may be required to give an additional instruction upon request where the evidence suggests that defendant knew his act was illegal, but did not understand it was morally wrong.”
First, the definition given this jury covered the situation in which defendant knew his act was legally wrong, but believed it was morally right, when it made the insanity defense available if the defendant, “[because of] mental disease or defect, ... did not know or understand... that his act was morally or legally wrong.” In contrast, the instruction in Stress made no reference whatsoever to legal or moral wrong-it provided only that the defendant be unable to distinguish right from wrong in order to be insane. (Stress, supra, 205 Cal.App.3d at p. 1271, fn. 4.) The trial court in Stress had determined that the defendant was sane, based on its conclusion that defendant knew his act was legally wrong, irrespective of his belief that it was morally right. (Id. at p. 1273.) The appellate court in Stress held “It is clear that... ‘wrong’... refers both to legal wrong and moral wrong.” (Id. at p. 1272.) The Stress court went on to define “morally right” as “generally accepted moral standards and not those standards peculiar to the accused.” (Id. at p. 1274.)
Aside from the result-determinate difference in facts between Stress and this case, the fact that Stress did not even involve a jury makes it meager precedent for defendant’s assertion that this jury should have been given supplementary instructions.
In Coddington, the California Supreme Court cited this latter holding in Stress, adding, “The morality contemplated by [the insanity defense] is... not simply the individual’s belief in what conduct is or is not good. While it need not reflect the principles of a recognized religion and does not demand belief in a God or other supreme being, it does require a sincerely held belief grounded in generally accepted ethical or moral principles derived from an external source.... [¶] Religious beliefs are often the source of generally accepted moral standards, but a defendant need not show that he or she believed that Judeo-Christian standards of morality justified the criminal conduct. An insane delusion that the conduct was morally correct under some other set of moral precepts would satisfy this prong of the M’Naghten test of legal insanity. However, ‘[t]he fact that a defendant claims and believes that his acts are justifiable according to his own distorted standards does not compel a finding of legal insanity.’ [Citation.]” (Coddington, supra, 23 Cal.4th 529, 608.) The Supreme Court termed as an “overly expansive understanding of the concept of morality found in the M’Naghten test” defense counsel’s argument to the jury that defendant “had a concept of God that might differ, and had rejected established religion and had his own moral system, but emphasized that whatever it was called, if the jury believed the evidence, it established [that the defendant] was following what he believed were commands from that source. If the jury believed that [defendant] was following what he believed to be signs from God, or from a higher entity, ... ‘and, therefore, did not believe that it was morally wrong, ’ the jury had to find him not guilty by reason of insanity.” (Id. at p. 609.)
Defendant totally mischaracterizes the context of the above-quoted portion of Coddington by stating, “... [T]he... [California Supreme Court] affirmed the supplemental M’Naghten test instructions given at trial therein” and defendant goes on to cite some of the material we have quoted from Coddington in the text. However, the relevant issue in Coddington was not the giving of supplemental instructions on the M’Naghten test. It was defendant’s assertion that the prosecutor had committed misconduct by telling the jury “that it could not find [defendant] not guilty by reason of insanity because his conception of God was pantheistic rather than ‘Judeo-Christian.’” (Coddington, supra, 23 Cal.4th at p. 607.) The only mention made of defendant’s supplemental instructions on the M’Naghten test was in the context of the court’s conclusion that nothing the prosecutor implied while questioning defense expert witnesses or during argument to the jury “precluded the jury from finding [defendant] legally insane under the court’s instructions or under the test [defendant] now argues was the sole appropriate objective means by which to measure his sanity.” (Coddington, at p. 609.) The Supreme Court never commented on the merits of the instructions given at the defense’s request and it certainly did not hold, as defendant here claims it did, that such instructions were necessary or appropriate.
None of these three cases require a trial court to give additional instructions on this concept where there is evidence that defendant knew his act was legally wrong, but believed it to be morally right. Moreover, nowhere in defendant’s briefs does he point to any evidence showing that he knew what he was doing was legally wrong. Therefore, there was no need for an additional instruction on this concept. Finally, the proffered instruction did not address this issue, and no “adaptation” of it fashioned by the trial court would logically have, either.
See text following footnote five, ante, page nine.
Finally, defendant asserts that the absence of the proffered instruction, or some version of it, prohibited him from arguing “that [he] had an insane delusion that his conduct was morally correct under his moral precepts and he acted pursuant to that set of beliefs, thereby satisfying the test of legal insanity-even if he understood his conduct was unlawful.” The following is what the defense argued to the jury, in pertinent part, “... [T]he view of the defense is that [defendant] is the seventh son of God. And if he is the seventh son of God and he has proved it to you, then he would be sane, because he wouldn’t be delusional. [¶]... [I]f [defendant] is... not... the seventh son ofGod... then... is it a delusion and did he fall within the other criteria of insanity?” “[Defendant said h]e was killing evil.... [¶]... [S]omething took over him and... forced him to do what he did.... [¶]... [¶] [The prosecution’s psychologist] comes to the conclusion... that [defendant] was delusional, ... but the [second prong] of the two-pronged test [of insanity] was not met, that [defendant] knew and understood the nature and quality of his acts and he knew that they were unlawful morally and legally.... [¶]... [The defense psychologist]... came to a conclusion that not only was [defendant] delusional but that... he did not know and understand the nature and quality of his acts, nor did he know that they were morally or legally unlawful. [¶]... [Defendant] said... that he doesn’t answer to man’s law, he answers to God’s law. God’s law supersedes man’s law.... [¶]... [¶]... [Defendant] was legally insane, delusional, did not know and understand the nature and quality of his acts. Or in the alternative that he was the... seventh son of God. Those are the only two ways you can interpret the facts of this case. [¶]... [I]f you... make a decision that he was not delusional, ... that he is what he purports to be [i.e., the seventh son of God], then... you have no choice but to find that he was sane. [¶] But if you... make a decision that he was suffering from a delusion, and that he did not know, then you have to find him insane. [¶]... [¶] I would like you to... make a decision as to whether or not... he was delusional or he was God. That’s it.” “[W]as he delusional or was he sane?” It is clear from defense counsel’s remarks that there was no real issue in this case about moral wrong versus legal wrong. Certainly, the prosecutor never argued that defendant failed to meet the second prong of the insanity test merely because he knew what he was doing was legally wrong.
But see footnote seven, ante, page 11.
The defense psychologist testified that defendant “lacked substantial capacity to determine the wrongfulness of his actions” without specifying what kind of wrongfulness. However, during cross-examination, he testified that he was “looking at whether or not the defendant understood that it was morally wrong to commit the murder....” The psychologist added that defendant “may have had some understanding at some point after the crime that his actions would be judged [to be] illegal... by the laws of man. But of course from [his] view, his position as the son of God, and his deity then supersedes those laws, it places him above those laws.” Defendant testified that after the crime, when he got in the victim’s truck and drove it to the front of the store, he knew what he had done “was a bad thing in the court’s eye and the normal law....” Defense counsel asked defendant if he believed at the time of the crime that he “was doing it in a lawful manner pursuant to God’s wish?” Defendant responded, “I was paying back what happened from the very beginning. When [Cain] killed Abel, God was in-“ Defense counsel asked defendant if he was performing his duties pursuant to God’s law. Defendant said he was. Counsel added, “Not man’s law but God’s law?” Defendant said it was God’s law. When counsel asked defendant if he recognized that there is a man’s law, defendant said that God’s law supersedes everything. During cross-examination, defendant testified that “[w]hen [he] murdered [the victim]... [he] believed that [he] had done nothing wrong.” The prosecutor asked defendant, “So when you murdered [the victim], in your mind, you had done nothing wrong, had not broken any laws?” Defendant replied, “I am here now because I broke this law, but God’s law I did not break.” Defendant went on to state, in response to the prosecutor’s question whether murder was against the law, “You should not murder. You should not take a life. God is the only one that can take a life.”
2. Argument to the Jury
Before the sanity phase of the trial began, the parties and trial court agreed that the defense would present its case in chief first because it had the burden of proof and each party should have only one opportunity to argue the case to the jury, with the defense going first. Defendant here contends that the trial court erred in denying him the right to make a closing argument. However, since trial counsel agreed to having only an opening argument and did not request a closing argument, there is no action by the trial court for us to review. Defendant also presents the fall-back argument that his trial attorney was incompetent for agreeing to present only an opening argument.
In so arguing, defendant carries a heavy burden of showing reasonable probability that had he presented a closing argument, he would have been adjudged insane by the jury. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692.) Given the wealth of evidence that defendant was not insane at the time he killed the victim, we cannot conclude that defendant has carried his burden.
Disposition
The trial court is directed to pick one of the two indeterminate abstracts of judgment it filled out and amend that abstract by showing that defendant was convicted of first degree murder by plea, not by jury trial, as both abstracts currently state. The trial court is further directed to state that the term imposed for this crime is 25 years to life, not life, as both abstracts currently stated. Finally, the trial court is directed to fill out a determinate abstract of judgment for the weapon use and prison prior enhancements and a copy of the abstract must be sent to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: HOLLENHORST J., MILLER J.