Opinion
A144550
05-30-2018
THE PEOPLE, Plaintiff and Respondent, v. CAMERON ALLEN WIESS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. VCR214764)
Defendant Cameron Allen Wiess appeals a judgment entered after a jury found him guilty of second degree murder and attempted murder and rejected his claim that he was not guilty by reason of insanity. He contends that the trial court committed instructional error, that the sanity finding is not supported by substantial evidence, and that his sentences should run concurrently rather than consecutively. We shall affirm the judgment.
I. BACKGROUND
A. Guilt Trial
1. Prosecution Evidence
Defendant lived with his aunt, Lisa Davis-Hernandez, in a trailer park in Vallejo. He socialized with a group of other residents: Robert Hughes; Davin O'Reilly (O'Reilly), who lived with his mother, Mary O'Reilly; and O'Reilly's fiancée, Tracie Mathisen. Defendant occasionally brought Mathisen small gifts.
O'Reilly had a BB rifle, and he had told Hughes he had a .22 caliber firearm. On occasion, O'Reilly, Hughes, and defendant would play with the BB gun, shooting bottles and cans. On one occasion, defendant and O'Reilly started "playing around and shooting each other"; O'Reilly shot defendant in the leg and told defendant to go ahead and shoot him. Hughes described the incident as "a joking fun thing," and no one was injured. A few weeks before the crimes at issue here, Hughes was with defendant and Mathisen. Hughes flicked a bottle cap; O'Reilly thought the bottle cap hit his house, and he became angry. He approached Hughes, yelling and cursing, and "swung at [him]." Defendant then punched O'Reilly several times.
On May 4, 2012, Davis-Hernandez drove defendant back home to Vallejo after he had been visiting his mother. Defendant appeared agitated, and Davis-Hernandez considered taking him to the emergency room, but she was exhausted and did not do so.
That night, shortly after midnight, defendant knocked on Hughes's door and had a conversation with him. He was sweating and breathing heavily, his eyes were bulging, he was grunting, and he appeared irate. He said something about an uncle, which Hughes did not understand. Defendant told Hughes he had a new knife and showed him the knife, which was about eight inches long. He grabbed another knife, which was by Hughes's barbeque pit, and started swinging both knives, making karate-style moves and chanting as if he were "speaking in tongues." Hughes told defendant to calm down, and he did so.
Hughes had seen defendant acting odd and chanting in the past, but defendant's behavior that evening was stranger than usual.
Shortly afterward, Mathisen called and asked to speak with defendant. She asked him to return 30 dollars he had borrowed from her. After initially sounding angry and arguing with her about whether he had to repay the money, defendant became calm and told her to come to Hughes's home for the money. Mathisen came to Hughes's trailer. Defendant was standing on the porch; Mathisen saw that he was sweating and his eyes were bulging.
As Mathisen approached, defendant "growled," jumped down the stairs and lunged toward her, stabbed her in the abdomen with a knife, then walked back toward his home. Mathisen walked toward Mary O'Reilly's home, which was next door, calling, "Davin, help me." Hughes helped Mathisen to Mary O'Reilly's house.
Mathisen later had surgery and survived her injuries.
O'Reilly emerged from his mother's house, a gun tucked under his shoulder, with the muzzle pointed upward. He did not stop to check on Mathisen or ask what had happened. Hughes did not see him point the rifle at defendant. O'Reilly approached defendant, saying something like, "What did you do that shit for?" or "What the fuck?" Defendant grabbed the barrel of the gun and stabbed O'Reilly in the chest. The knife pierced O'Reilly's heart, and he later died of the wound.
O'Reilly owned rifle BB guns. His mother did not allow real guns in the house. She testified that when Mathisen called for help, O'Reilly went to his room and got a BB gun.
Defendant went to the home he shared with Davis-Hernandez, woke her, and said, "I had to do it. I had to do it." As he was being arrested, he told an officer he stabbed O'Reilly because O'Reilly was pointing a rifle at him. After he was arrested and taken to the police station, defendant spoke to police officers. In the statement, he explained that "she" (presumably Mathisen) called Hughes's house to talk to him, they argued about whether he owed her money, she told him she would come over and he should not "mess[]" with her, she went to Hughes's house, and defendant took the gun from O'Reilly's hand.
2. Defense Evidence
Defendant's brother testified that defendant visited him twice in the days immediately preceding the crimes, and he was acting "a little off than normal." He engaged in behaviors such as talking to himself, stomping his feet, or batting at his head more often than he normally did, and it was difficult to talk with him. When his brother asked defendant to calm down, defendant would continue to talk to himself, he spoke "gibberish," and it was hard to understand what he was talking about. Defendant's behavior was disturbing enough that his brother asked him to leave. Another brother also testified that defendant was acting stranger than usual when he visited on the day before the attacks. He was talking quickly and would change the topic in a way that was "all over the wall." Defendant's brother asked him to leave. An aunt testified that defendant was "not normal" the day before he was arrested. He made hand and leg movements, talked to himself in gibberish, made grunting noises, and "spac[ed] out." He was talking to "people that aren't there." It appeared to her from his communication that he was "off in his own world," and "wasn't seeing reality around him."
Dr. Janice Nakagawa, a psychologist who evaluated defendant, testified on his behalf as an expert in forensic psychology. She opined that he suffered from schizoaffective disorder bipolar type. The disorder involves psychotic-type symptoms of schizophrenia (which can include hallucinations, delusions, paranoia, persecutory beliefs and severe distortions of reality); mood or emotional symptoms, such as depression; and agitation or being "amped up." This form of mental illness involves problems with impulse control and regulating emotions. Defendant had a long history of treatment, and he had been medicated with anti-psychotics and mood stabilizers.
When Dr. Nakagawa interviewed defendant, he told her he was hearing voices the night of May 4, 2012. She believed his mental functioning was impaired and he was suffering from hallucinations that night. The fact that he was talking to himself suggested he was responding to auditory hallucinations. Defendant told her he believed he was his dead cousin's father and Mathisen was trying to hurt him. His symptoms of chanting, speaking gibberish, sweating, and being irate were consistent with a person experiencing extreme psychological distress.
Dr. Nakagawa had evaluated defendant previously, in 2008, and on that occasion had concluded he was malingering. She had administered a clinical test for malingering, called the Miller Forensic Assessment of Symptoms Test (M-FAST). Any score of six or above, on a scale of 25, indicates a patient is malingering. Defendant's score in 2008 was 18. She also administered a memory test, the Test of Memory Malingering (TOM) in 2008, which likewise indicated malingering. When Dr. Nakagawa evaluated defendant after the May 5, 2012 crimes, she concluded he was not malingering. She did not perform the M-FAST or TOM tests at that time, because she used them only if her clinical judgment suggested the patient might be malingering.
Defendant's theory as to the crime against Mathisen was that, due to his mental illness, he did not form the intent necessary for attempted murder, and that he was guilty only of the lesser offense of assault with a deadly weapon causing great bodily injury. As to the killing of O'Reilly, he took the position that he acted in self-defense.
The jury found defendant guilty of second-degree murder of O'Reilly (Pen. Code, § 187, subd. (a), count one) and attempted murder of Mathisen (§§ 187, subd. (a) & 664, count two), and found true allegations that he personally used a deadly and dangerous weapon in connection with both counts (§ 12022, subd. (b)(1)) and personally and intentionally inflicted great bodily injury on Mathisen (§ 12022.7, subd. (e)). The trial court then found true allegations as to both counts that defendant had suffered a prior conviction of a serious or violent felony (§§ 1170.12, subds. (a)-(d) & 667, subd. (b)) and a serious felony (§ 667, subd. (a)(1)).
All further statutory references are to the Penal Code unless otherwise indicated.
B. Sanity Trial
1. Defense Evidence
The issue of defendant's sanity was tried next. Dr. Nakagawa, who had evaluated defendant to determine his state of mind on the date of the crimes, again testified on his behalf as an expert in forensic psychology. She opined that he suffered from schizoaffective disorder bipolar type. A person with the disorder may experience delusions, hallucinations, paranoia, and thought disorganization, as well as depression, agitation, or feelings of despair. Disorganized thoughts may be manifested in speech patterns in which the person uses neologisms, or words that do not make sense, and "talk[s] about anything and everything," in a way that does not make sense. Medication is an essential part of managing the disorder. Defendant's behavior on the night of the crimes was consistent with his not having taken his medications for several weeks beforehand. His actions in talking to himself the day of the offenses was consistent with verbal or visual hallucinations.
In addition to reviewing defendant's medical records, Dr. Nakagawa interviewed him three times. She believed he was as stable as he could be with his medications, but he was still easily agitated. When he talked about the days before the crimes, when he was visiting his mother, he said he had been hearing voices, but was happy to be visiting his mother, so he ignored them. He had been having trouble getting his medication renewed, and he needed an appointment with a psychiatrist. He had been off his medications for about a month. He bought an elaborate knife he saw in a store and he was "entranced" with it.
Defendant told Dr. Nakagawa that he began to hallucinate as he returned home with his aunt on the night of the offenses, seeing lights and hearing voices. When he got home, he took the knife to Hughes's house to show it to him. Defendant reported he "[s]tarted believing I was somebody else because I had the knife," and that "I thought I was my cousin's father." The cousin's father was dead. Defendant's belief was consistent with a delusion. Defendant said that his paranoia increased when Mathisen called on the telephone and asked for him; as she yelled at him, he kept thinking that he was his cousin's father and that Mathisen had killed him. When she knocked on Hughes's door, he could not get past her, and he "just wanted to go home and smoke that weed [he] had saved." He also said he believed Mathisen had killed his son; however, he did not in fact have a son. Describing the crimes, he said he stabbed Mathisen, but added, "But I didn't know I stabbed her." He then saw O'Reilly on the steps with a gun; he jumped off the step; O'Reilly pointed the rifle at him; defendant took the rifle and pulled the trigger; and he took the gun and the knife home. He did not know he had stabbed O'Reilly until he got home and saw blood on the knife.
A note from defendant's jail records, from 9:00 on the morning following the crimes, stated, "Unable to obtain information. Delusional. Not answering questions. Unpredictable." Later that day, defendant said, "It was self-defense. He put a gun in front of my face and shot my feet four times." He reported he was experiencing auditory hallucinations. A psychiatric note from the next day indicated defendant reported he had not been taking his medications, that his thought process was "mildly disorganized," and that he reported seeing hallucinations. Defendant's records in the days following the crimes indicated he was becoming increasingly stable as he received psychotropic medications.
Dr. Nakagawa opined that defendant's behavior the night of the crimes was directly related to his mental illness, and that he was experiencing auditory hallucinations, paranoid delusions, thought disorganization, increased agitation, and difficulties in thinking coherently and rationally. As a result, his ability to perceive what was happening around him, use good judgment, rationally consider and deliberate his actions, and know and understand the quality of his actions was impaired. She believed that under California's standard for insanity, defendant was not capable of knowing and understanding the nature of his acts, and he was insane.
Dr. Nakagawa considered whether defendant was malingering and concluded he was not. She did not administer any clinical tests for malingering, as she had done in 2008, because he "did not present as malingering" in the interviews in 2013.
Defendant's mother testified defendant had been mentally ill since the age of 18, and he took medication. Three weeks before the crimes, he ran out of his medication. When defendant was not taking his medications, he became "a different person"; his tongue darted in and out of his mouth, he laughed or talked inappropriately, he said things that made no sense; he thought he could speak a different language; he thought he had super powers; he could not remember who his family members were; he had hallucinations; and he was easily angered and frightened.
Defendant stayed at his mother's house from May 1 through May 4, 2012. He was not taking his medications, and he was acting in the manner described above. She had to travel to San Diego, and defendant was frightened and begged her to stay home. She called Davis-Hernandez and asked her to pick defendant up and take him to the hospital.
After the crimes, a police detective who was investigating the case searched defendant's bedroom. He saw several empty prescription pill bottles on the headboard.
2. Prosecution Evidence
a. Dr. Gretchen White
Two forensic psychologists testified for the People. The first, Dr. Gretchen White, reviewed police reports and medical records and interviewed defendant. When she interviewed defendant, he told her his visual and auditory hallucinations began when he was 18 years old, after he took "acid."
In describing the crimes, defendant told Dr. White he had gone to Hughes's house with a knife. Defendant and Mathisen were good friends but had an ongoing disagreement about whether he owed her money, or whether she owed him various items he had loaned her, including a crystal ball his mother had given him. She called to talk with him, and during the conversation, he learned she intended to keep the crystal ball. He told Dr. White, "She came over with her boyfriend, and he had a rifle. They tried to get the money. They came to the door. The person's house it was opened the door, and [Mathisen] was screaming real loud that she wanted her money and wasn't going to give me my crystal ball and the other things. Her boyfriend was there behind her with a .22 caliber rifle pointed at my head, about one foot away." He went on, "I took the gun and stabbed him. And before that it was her. I stabbed her because they had a gun. Period. They were right there. And I had to get away from them." He said, "I took the gun away from him. I had a knife on me already. I took the rifle and used the knife at the same time. . . . He had a gun right there, and I grabbed it. And I had the knife, and it was, like, at the same time, like that." Dr. White asked defendant if he had been hearing voices at the time, and he told her he believed he was not himself, but his cousin's dead father, and later that Mathisen had caused the death of his deceased relative. He also said he tried to frighten Mathisen by telling her that he was his cousin's father and that he had killed 500 people in prison.
Dr. White had seen a report indicating that the day before the crimes, defendant's aunt noticed him talking to himself. Defendant had been making unusual sounds and behaving oddly, and family members had asked the aunt to take defendant to the hospital to get his medications. Defendant appeared to be having severe psychological problems, and "parts of his thought process were impaired." His psychosis could affect his impulse control.
Dr. White diagnosed defendant with schizophrenia, although he could be suffering from another serious mental disorder on the schizophrenia spectrum, such as schizoaffective disorder or bipolar disorder with psychotic features. She testified that not everyone who suffers from a mental illness is legally insane; the question was whether the psychotic symptoms "impinge directly on the person's thinking and behavior and are causal at the time of the crime."
Dr. White opined that the crime was motivated not by defendant's psychosis, but by the disagreement over money and the items he had given Mathisen. Defendant said he told Mathisen about his delusional belief he was his dead cousin in order to frighten her, and there is no indication his delusion caused him to stab O'Reilly. It was possible to be both psychotic and legally sane at the same time, and to have reduced impulse control as a result of mental illness and still be legally sane. Dr. White did not believe defendant was legally insane at the time of the crimes.
b. Dr. Janella Street
Dr. Janella Street also evaluated defendant. She reviewed his previous psychological evaluations and police reports, and she met with him twice. She conducted an assessment and a test for malingering, and the results indicated he was malingering. Defendant's initial version of events was logical and succinct, but when he reached the point of the stabbing, he claimed not to be able to recall what had happened. When she challenged defendant on inconsistencies in his story, he would suddenly say he was confused or claim to be having visual or auditory hallucinations. This led her to suspect he was feigning mental health symptoms. Dr. Street testified that if she had concluded defendant was malingering in an interview several years in the past, she would have given him a new test to determine whether he was feigning or exaggerating his symptoms.
In describing the offenses, defendant told Dr. Street he bought the knife a day or two before because "Rob" liked to collect knives. He went to Rob's house to show him the knife, and they started play-acting with the knife. Mathisen called the house, asked to speak to him, and asked for the money he owed her. He told her he would not give her the money because he wanted her to return the items that belonged to him. She knocked on the door, Rob opened the door, and defendant saw Mathisen and her boyfriend, who had a gun. Defendant jumped past Mathisen and took the gun, and did not recall anything after that, until someone told him he had stabbed them. He tried to wave down the police, but waited outside. When he saw that his knife was red and shiny, he realized something had happened. He also mentioned that O'Reilly had shot him with a pellet gun in the past. When Dr. Street asked defendant about his mental health symptoms and the crimes, defendant said he had a delusional thought that he was his uncle and one of the victims had injured or killed his cousin and defendant had to seek revenge.
When Dr. Street asked defendant why he had tried to get the attention of a police officer, he indicated either that he was confused, that he did not understand the question, or that he was having hallucinations.
Although Dr. Street concluded defendant suffered from schizoaffective disorder bipolar type and that he experienced psychotic symptoms, she opined that he was legally sane at the time of the offenses. He understood right from wrong or that there would be consequences for his actions. Defendant's action in trying to wave down the police and then waiting for the police indicated he knew there would be consequences or that the police would want to talk with him. Based on defendant's explanation of his actions, Dr. Street did not think defendant was experiencing psychosis at the exact time of the stabbings; even if he were, that would not necessarily mean he could not distinguish right from wrong.
The jury found defendant was sane during the commission of the crimes.
II. DISCUSSION
A. Instructional Error in Guilt Phase
Defendant contends that the trial court erred in giving two specific instructions on self-defense that were not supported by the evidence and that he was prejudiced by the error. The Attorney General concedes the instructions defendant challenges should not have been given but contends the error was not prejudicial.
The Attorney General contends defendant forfeited his challenges to the self-defense instructions by failing to raise them below. (See People v. Virgil (2011) 51 Cal.4th 1210, 1260.) Although defendant did not specifically object to the form of the modified version of CALCRIM No. 3470 or to CALCRIM No. 3472, his counsel raised numerous concerns about the self-defense instructions the prosecutor proposed, and there was a lengthy colloquy on the appropriate instructions to give under the unusual facts of this case, in which defendant attacked one victim, a second person confronted defendant, and defendant then attacked the second person and claimed he did so in self-defense. In the circumstances, we shall consider defendants' claims on the merits.
1. The Self-Defense Instructions
The challenged instructions must first be placed in context. The trial court instructed the jury with the standard instructions regarding the right to self-defense: CALCRIM No. 3470 (right to self-defense or defense of another), CALCRIM No. 3471 (right to self-defense: initial aggressor), CALCRIM No. 3472 (right to self-defense: may not be contrived) and CALCRIM No. 3474 (danger no longer exists or attacker disabled). The instructions defendant challenges are CALCRIM No. 3470, which the court modified in a manner we shall discuss below, and CALCRIM No. 3472.
At the outset of the self-defense instructions, the court informed the jury, "In this case, the instructions regarding self-defense may apply to your analysis of the conduct of defendant, as well as the conduct of Davi[n] O'Reilly. You the jury must determine what you believe to be the true facts in this case. Based upon your determination of those true facts, you must then determine whether the following instructions are applicable to the facts at hand."
The court then provided the following version of CALCRIM No. 3470: "A person acted in lawful self-defense or defense of another if: [¶] 1. That person reasonably believed that either he, or another person, was in imminent danger of suffering bodily injury; [¶] 2. The person reasonably believed that the immediate use of force was necessary to defend against that danger; [¶] AND [¶] 3. The person using force used no more force than was reasonably necessary to defend against that danger." (Italics added.) The instruction given substitutes references to a "person" for CALCRIM No. 3470's references to the "defendant." The court went on to explain that belief in future harm was not sufficient; that if defendant or O'Reilly used more force than was reasonable to defend himself or someone else, that person did not act in lawful self-defense; that the jury should consider all the circumstances known to the person and consider what a reasonable person would have believed; that the person's belief that he was threatened must be reasonable; that a person is not required to retreat; and that the People had the burden to prove beyond a reasonable doubt that defendant did not act in self-defense. Again, CALCRIM No. 3470 refers to the circumstances in which the defendant, rather than the person, has a right to self-defense.
Thus, the pattern instruction CALCRIM No. 3470 provides: "The defendant is not guilty of (that/those crime[s]) if (he/she) used force against the other person in lawful (self-defense/ [or] defense of another). The defendant acted in lawful (self-defense/ [or] defense of another) if: [¶] 1. The defendant reasonably believed that (he/she/ [or] someone else/ [or] __________ <insert name of third party>) was in imminent danger of suffering bodily injury [or was in imminent danger of being touched unlawfully]; [¶] 2. The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; [¶] AND [¶] 3. The defendant used no more force than was reasonably necessary to defend against that danger."
For example, CALCRIM No. 3470 provides, "The defendant must have believed there was" imminent danger, that if "the defendant used more force than was reasonable, the defendant" did not act in lawful self-defense, that the jury should consider all the circumstances as they were known to "the defendant," that "the defendant" must have actually and reasonably believed the threat was true, and that "[a] defendant is not required to retreat." (Italics added.)
The instruction on "right to self-defense: initial aggressor," adapted from CALCRIM No. 3471, informed the jury: "A person who starts a fight has a right to self-defense only if: [¶] 1. He actually and in good faith tried to stop fighting; [¶] AND [¶] 2. He indicated, by word or by conduct, to his opponent, in a way that a reasonable person would understand, that he wanted to stop fighting and that he had stopped fighting. [¶] If a person meets these requirements, he then had a right to self-defense if the opponent continued to fight. [¶] However, if a person used only non-deadly force, and the opponent responded with such sudden and deadly force that the person could not withdraw from the fight, then the person had the right to defend himself with deadly force and was not required to try to stop fighting, or communicate the desire to stop to the opponent."
The court instructed the jury regarding contrived self-defense verbatim according to CALCRIM No. 3472: "A person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force."
Finally, the court instructed the jury pursuant to CALCRIM No. 3474 that "[t]he right to use force in self-defense or in defense of others continues only as long as the danger exists or reasonably appears to exist. When the attacker withdraws or no longer appears capable of inflicting any injury, then the right to use force ends."
2. CALCRIM No. 3472
Defendant contends, and the Attorney General agrees, that the court should not have provided CALCRIM No. 3472 regarding contrived self-defense. "It is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case." (People v. Guiton (1993) 4 Cal.4th 1116, 1129 (Guiton).) The instruction is a correct statement of the law. (People v. Eulian (2016) 247 Cal.App.4th 1324, 1334 (Eulian), citing People v. Enraca (2012) 53 Cal.4th 735, 761.) However, it does not apply to the facts of this case: there is no evidence that defendant provoked a fight or quarrel with either Mathisen or O'Reilly in order to create an excuse to use force.
In Guiton, our high court concluded that an error in giving a correct instruction that is inapplicable to the facts of the case was one of state law subject to the Watson test for prejudice, under which reversal is required if it is reasonably probable the defendant would have obtained a more favorable result in the absence of the error. (Guiton, supra, 4 Cal.4th at p. 1130; People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); see People v. Robinson (1999) 72 Cal.App.4th 421, 429 [error in giving inapplicable instruction "does not require reversal unless it is affirmatively shown that defendant was prejudiced thereby and that there is a reasonable probability that, absent the error, the jury would have returned a verdict more favorable to the defendant"].)
Our high court explained in People v. Guiton that prejudice may be found, for example, where the district attorney stressed only an invalid ground during jury argument, and the jury asked the court questions during deliberations directed solely toward the invalid ground. (Guiton, supra, 4 Cal.4th at p. 1129.)
We find no such error here. "[T]he jury is presumed to disregard an instruction if the jury finds the evidence does not support its application. [Citation.]" (People v. Frandsen (2011) 196 Cal.App.4th 266, 278 [CALCRIM No. 3472].) The court in People v. Olguin (1994) 31 Cal.App.4th 1355 (Olguin), considered this issue. The defendants there, members of a gang, confronted members of another gang who they believed had defaced their graffiti. (Id. at pp. 1366-1367.) One of the defendants punched an opposing gang member in the face; one of the opposing gang members approached defendants, and one of the defendants pulled out a gun and fired, killing an opposing gang member. (Id. at p. 1367.) The jury was instructed pursuant to CALJIC No. 5.55 (the predecessor to CALCRIM No. 3472) that "[t]he right of self-defense is not available to a person who seeks a quarrel with the intent to create a real or apparent necessity of exercising self-defense." (Id. at p. 1381 & fn. 10.) Although the instruction was inapplicable to the facts of the case, the appellate court found no reversible error. "[The instruction] was part of a packet of a dozen self-defense instructions, some of which were mutually exclusive. It was obvious to anyone that not all of those instructions could apply to the case, and the jurors were specifically instructed they were to 'Disregard any instruction which applies to facts determined by you not to exist.' [Citation.]" (Id. at p. 1381.) The court went on: "[Defendant] suggests the instruction might have kept the jury from evaluating his self-defense claim, but we don't see how. This very same argument about the same instruction was made—and rejected—in People v. Crandell (1988) 46 Cal.3d 833, [872-873,] where the court concluded, 'we are confident the jury was not sidetracked by the correct but irrelevant instruction, which did not figure in the closing arguments, and we conclude that the giving of the instruction was harmless error.' [Citations.] So do we." (Id. at pp. 1381-1382.)
We reach the same conclusion here. The instruction was but a small part of the self-defense instructions. The jury was informed at the outset of the jury instructions that some of the instructions might not apply, depending what it found about the facts of the case, and at the outset of the instructions on self-defense that based on its determination of the true facts of the case, it must "then determine whether the following instructions are applicable to the facts at hand." The predicate fact that would make CALCRIM No. 3472 applicable was a finding that defendant "provoke[d] a fight or quarrel with the intent to create an excuse to use force"; absent such a finding, the instruction would not authorize the jury to conclude defendant did not "have the right to self-defense." (CALCRIM No. 3472.) Although the prosecutor stated in his closing argument that defendant "creat[ed] the situation himself," he did not mention CALCRIM No. 3472, and did not suggest defendant provoked a fight "with the intent to create an excuse to use force." More important, the evidence did not support such a conclusion. In the circumstances, there is no basis to conclude the jury relied improperly on the instruction in rejecting defendant's claim of self-defense. (See People v. Eulian, supra, 247 Cal.App.4th at p. 1335 ["If CALCRIM No. 3472 was erroneously given because it was irrelevant under the facts, the error is merely technical and not grounds for reversal"].)
Our focus here is not on the arguments counsel made to the court about what instructions should be given; rather, it is on the instructions the jury actually heard.
We are not persuaded otherwise by the fact that the jury requested additional copies of the jury instructions and asked for read-backs of the testimony of Hughes (including testimony regarding the earlier incidents between defendant and O'Reilly), Mary O'Reilly, and the officer who arrested defendant. Those requests suggest no more than that the jury was conscientious in its effort to evaluate the facts of the case.
Defendant relies heavily on People v. Ramirez (2015) 233 Cal.App.4th 940 (Ramirez), which, on the facts of that case, concluded it was erroneous to instruct the jury on contrived self-defense. Ramirez is inapposite. The defendants there, members of a gang, went with an associate to confront members of a rival gang that had been harassing them, and a fistfight broke out. (Id. at p. 944.) A member of the rival gang held out an object that looked like a gun, and one of the defendants pulled out a gun and fatally shot him. (Id. at p. 945.) The trial court instructed the jury on contrived self-defense pursuant to CALCRIM No. 3472, and the defendants were convicted of murder. (Id. at p. 943.) In closing argument, the prosecutor repeatedly highlighted the instruction, arguing it precluded any claim of self-defense even if the defendants instigated only a fistfight. (Id. at p. 946.) The appellate court reversed the judgment, concluding the instruction erroneously prevented the jury from considering defendants' claim of self-defense. (Id. at pp. 943, 953.) On those facts, the court held that the instruction misstated the law, and that "[a] person who contrives to start a fistfight or provoke a nondeadly quarrel does not thereby 'forfeit[] . . . his right to live.' [Citation.]" (Id. at p. 943.) Here, however, there is no evidence defendant intended to use only nondeadly force. (See Eulian, supra, 247 Cal.App.4th at p. 1334 ["CALCRIM No. 3472 is generally a correct statement of law, which might require modification in the rare case in which a defendant intended to provoke only a nondeadly confrontation and the victim responds with deadly force"].) Nor did the prosecutor refer to the instruction in his closing argument, or suggest that defendant did not have a right to self-defense. Rather, he acknowledged that the People had the burden to prove that defendant was not acting in self-defense, and argued that the evidence met that burden. The differences between the circumstances of this case and those of Ramirez compel a different result.
Defendant argues that it was error to give CALCRIM No. 3472 because it does not apply to a situation in which a defendant attacks one victim, a second person carries out a "cross assault" on him in response, and the defendant then uses deadly force against the second victim. However, as we have already explained, the instruction is unsupported by the facts before the jury. The facts of this case were relatively straightforward, and there is no reason to conclude the jury was unable to discern that CALCRIM No. 3472 was inapplicable to them.
Defendant argues that we should apply the standard of review for federal constitutional error because the instruction curtailed his ability to prevent his defense. (Chapman v. California (1967) 386 U.S. 18.) He relies on Ramirez, supra, 233 Cal.App.4th at p. 953, and People v. Quach (2004) 116 Cal.App.4th 294, 303, both of which applied the Chapman standard to analyze the prejudicial effect of instructional error. Those cases are readily distinguishable. The court in Ramirez concluded that, under the unusual circumstances of that case, CALCRIM No. 3472 was an erroneous statement of the law because it required the jury to conclude the defendants had entirely forfeited the right to self-defense. (Ramirez, supra, 233 Cal.App.4th at pp. 947, 953.) Likewise, Quach applied the Chapman standard where the instructions were erroneous, in that they misinformed the jury of the test to be applied where a mutual combatant claimed the right of self-defense, and precluded the jury from distilling the correct rule from the other instructions. (Quach, 116 Cal.App.4th at pp. 300-301, 303.) Here, on the other hand, the trial court gave an instruction that was merely inapplicable. It did not preclude the jury from considering any element of the claim of self-defense. The Watson standard therefore applies. (See Guiton, supra, 4 Cal.4th at pp. 1129-1130.)
3. CALCRIM No. 3470
Defendant also contends the trial court erred in instructing the jury with a version of CALCRIM No. 3470 that had been modified to apply not only to defendant's actions, but also to those of O'Reilly. He contends that O'Reilly's motivation in confronting him was irrelevant to the question of whether defendant acted in fear of imminent injury or death. The Attorney General concedes that there was no basis to instruct the jury on the question of whether O'Reilly was lawfully acting in defense of another, because the evidence showed that after defendant stabbed Mathisen, he turned and walked toward his home.
Defendant contends the instruction, as modified, prejudiced him because it misdirected the jury to view the evidence from O'Reilly's perspective and, in doing so, shifted the burden to defendant to prove O'Reilly did not attack him in self-defense. As a result, he argues, we must apply the Chapman standard for constitutional error and reverse only if the error is harmless beyond a reasonable doubt. We disagree. Nothing in the instructions implies that defendant had the burden to show O'Reilly was not acting in self-defense. On the contrary, the jury was correctly instructed that the People had the burden of proving beyond a reasonable doubt that defendant did not act in lawful self-defense. Moreover, the prosecutor expressly acknowledged in his closing, "it's my obligation to prove that [defendant] wasn't acting in self-defense." The instruction did not remove any element of the crime or defense from the jury's consideration. (See People v. Sakarias (2000) 22 Cal.4th 596, 624-625 [instructional error of constitutional dimension, requiring Chapman standard of prejudice, where court "relieved the jury of its obligation to determine whether all the elements of [the crimes] were proven beyond a reasonable doubt"]; accord People v. Flood (1998) 18 Cal.4th 470, 479-480].) We shall consider whether there was prejudice under the Watson standard for state law error, under which we reverse only if it is reasonably probable the defendant would have achieved a more favorable result in the absence of the error.
We find no prejudicial error. The jury was comprehensively instructed on the law of self-defense. (See Olguin, supra, 31 Cal.App.4th at p. 1381.) In particular, it was instructed that a person who starts a fight has a right to self-defense if he tried to stop fighting and he indicated by words or conduct that he had stopped fighting (CALCRIM No. 3471), and that a defendant's belief that he was at risk of imminent harm must be reasonable (CALCRIM No. 3470).
Defendant suggests that the prosecutor's argument magnified the error in giving the instruction. In his closing argument, when discussing defendant's contention that he stabbed O'Reilly in self-defense, the prosecutor first drew the jury's attention to the instruction on defense of others, and argued that O'Reilly was acting in lawful defense of others when he confronted defendant. However, he went on, "[S]econd, and kind of more to the point is that Mr. Weiss was not in actual danger, in the sort of danger that gave him the lawful right to use deadly force when he used that deadly force. As I talked about earlier, he knew it wasn't a gun right away. That's both because of his history with Mr. O'Reilly and the way he acted. [¶] We know he didn't think he was about to get shot. It was never pointed at him. He was never attacked. He was never hurt whatsoever. At the time he chose to do force, it was absolutely, completely unnecessary." (Italics added.) Thus, although the prosecutor argued O'Reilly acted in defense of others, he did not argue that defendant therefore had no right to self-defense. Rather, he argued that self-defense was unnecessary and defendant knew it. Moreover, defense counsel reminded the jury that a person who starts a fight regains the right to self-defense if he tried to stop fighting, and argued that the evidence showed defendant had stopped fighting when he turned his back and walked away from Hughes's home after stabbing Mathisen.
Thus, although we agree that there was no basis to modify the self-defense instruction to apply to O'Reilly's conduct as well as defendant's, we find no prejudice. There is no basis—in either the instructions or the arguments—to conclude the modification of CALCRIM No. 3470 led the jury to believe defendant had no right to self-defense if he tried to stop fighting and reasonably believed he was at risk of imminent harm. Any error in giving the modified instruction therefore was harmless. (See People v. Robinson, supra, 72 Cal.App.4th at p. 429 [harmless error to give special instruction where "a reasonable jury would simply have dismissed the special instruction as inapplicable"].)
We have also considered, and reject, defendant's contention that he was prejudiced by the cumulative error of providing the two challenged instructions. Neither instruction misstated the law, and defendant has not shown it is reasonably probable he would have achieved a more favorable result if CALCRIM No. 3472 had not been given and CALCRIM No. 3470 had not been modified.
B. Sanity Issues
1. Evidence in Support of Sanity Finding
When a defendant pleads both not guilty and not guilty by reason of insanity, the trial is bifurcated. (§ 1026, subd. (a).) The issue of guilt is tried first; in that trial, the defendant is conclusively presumed to be sane at the time of the offense. (Ibid.) If the defendant is found guilty, the trial proceeds to the sanity phase. (Ibid.) In that phase, the defendant bears the burden to prove 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." (§ 25, subd. (b); see § 1026, subd. (a); People v. Elmore (2014) 59 Cal.4th 121, 140-141 (Elmore).) Insanity may be shown under either the 'nature and quality' prong or the 'right from wrong' prong of the test. (People v. Skinner (1985) 39 Cal.3d 765, 775-777 (Skinner I).)
Defendant contends the sanity finding should be reversed because there is insufficient evidence to support a finding that he understood the wrongfulness of his act. He argues that the evidence established that his mental illness caused him to have delusions and stab people based on those delusions and, thus, his mental illness prevented him from being able to understand the quality of his actions when he stabbed Mathisen and O'Reilly.
We first note that, because defendant bears the burden of proof in the sanity trial, " 'the question on appeal is not so much the substantiality of the evidence favoring the jury's finding as whether the evidence contrary to that finding is of such weight and character that the jury could not reasonably reject it.' [Citations.]" (People v. McCarrick (2016) 6 Cal.App.5th 227, 247-248.) Appellate review of a jury finding of sanity under this standard is highly deferential. In particular, as our high court long ago observed, jurors "are not automatically required to render a verdict which conforms to the expert opinion" presented at trial. (People v. Drew (1978) 22 Cal.3d 333, 350.) Even in cases—unlike this one—in which the experts testify unanimously that a defendant is insane, courts have applied this deferential standard to uphold jury findings of sanity. " 'However impressive this seeming unanimity of expert opinion may at first appear . . . our inquiry on this just as on other factual issues is necessarily limited at the appellate level to a determination whether there is substantial evidence in the record to support the jury's verdict of sanity . . . under the law of this state. [Citations.] It is only in the rare case when "the evidence is uncontradicted and entirely to the effect that the accused is insane" [citation] that a unanimity of expert testimony could authorize upsetting a jury finding to the contrary. [Citation.] Indeed we have frequently upheld on appeal verdicts which find a defendant to be sane in the face of contrary unanimous expert opinion.' " (People v. Drew, supra, 22 Cal.3d at p. 350; see also, e.g., People v. McCarrick, supra, 6 Cal.App.5th at pp. 247-249 [although each of the experts who testified concluded defendant was not able to understand that her actions were legally or morally wrong, the jury could have reasonably rejected their opinions]; People v. Skinner (1986) 185 Cal.App.3d 1050, 1059-1061 [trial court properly rejected insanity defense, despite unanimous agreement by experts that defendant was insane at the time of the incident, where it could have concluded, among other things, that diagnoses based on interviews months after the crime were "necessarily somewhat speculative" and that "even if [defendant] was operating within a delusional system, this would not necessarily compel a finding of insanity"].)
Defendant's argument fundamentally misconceives this standard. In asserting courts have consistently held that "a jury could reasonably have found the defendant insane" based on evidence he killed because he was suffering from a paranoid delusion that led him to believe his crimes were morally or legally acceptable, defendant stands on its head his burden on appeal. The question before us is not whether the jury could have reasonably found defendant insane, but rather whether the evidence of insanity was so strong and undisputed that the jury could not have reasonably rejected it. Defendant cannot possibly meet that burden here, where two expert witnesses testified that although he was suffering from mental illness, he was sane at the time he committed the offenses.
Defendant argues the evidence at the sanity hearing "indisputably showed that [he] killed based on delusion" and that his mental illness prevented him from understanding the nature of his actions. Not so. There was conflicting expert evidence regarding defendant's sanity. Dr. Nakamura explained defendant reported he was suffering from verbal or visual hallucinations on the day of the crimes, that he had a delusion that he was his cousin's (dead) father and that Mathisen had killed him, and that he could not recall his actions in stabbing his victims. She was of the view that defendant was not malingering, that due to his mental illness, defendant's ability to know and understand the quality of his actions was impaired, that his behavior that night was directly related to his mental illness, and that he met California's standard for insanity. Although she had concluded defendant was malingering in an evaluation several years previously, she did not administer any tests for malingering when she interviewed him in connection with this case.
The two psychologists who testified for the People acknowledged that defendant suffered from serious mental illness on the schizophrenia spectrum, but were of the opinion that he was sane under California law on the night of the stabbings. They explained the basis for their opinions in detail. Dr. White believed the crime was motivated by defendant's disagreement with Mathisen over the money she had lent him, rather than by his delusion that he was his dead cousin. She testified it was possible to be both psychotic and legally sane at the same time. Dr. Street's evaluation of defendant indicated he was feigning mental health symptoms when he described the stabbings. She concluded that defendant understood right from wrong on the night of the offenses, that he was not experiencing psychosis when he stabbed his victims, and that even if he were, he might still be able to distinguish right from wrong.
"It was for the jury to evaluate the testimony of the experts, examine the bases for their opinions and determine whom to believe." (People v. Chavez (2008) 160 Cal.App.4th 882, 891.) Here, defendant has failed to demonstrate that Dr. Nakamura's opinion was of such weight that the jury could not reasonably reject it, particularly in light of conflicting expert testimony by Dr. White and Dr. Street.
The authorities upon which defendant relies do not persuade us otherwise. In People v. Stress (1988) 205 Cal.App.3d 1259, 1271-1275, the appellate court concluded that the trial court had applied the wrong test for sanity, and that a defendant may be found not sane if he or she cannot distinguish the act's moral (as opposed to merely legal) rightness or wrongness. The court concluded the evidence would support a finding that the defendant did not appreciate the moral wrongfulness of his act in killing his wife while in the throes of a delusion that her death would contribute to some higher good, and therefore remanded the matter for a new hearing on the issue of sanity. (Id. at p. 1275.) The court in Stress followed Skinner I, which concluded that "a defendant who is incapable of understanding that his act is morally wrong is not criminally liable merely because he knows the act is unlawful." (Skinner I, 39 Cal.3d at p. 783; Stress, 205 Cal.App.3d at pp. 1271-1272.) The question here is not whether, under the proper standard, the evidence would support a different conclusion than the jury reached, but whether the evidence is such that it compels a conclusion that defendant did not appreciate the wrongfulness of his acts.
Defendant also relies on People v. Leeds (2015) 240 Cal.App.4th 822, 831-833, in which the appellate court ruled that the trial court had erred when its instructions to the jury indicated that the relevant question was whether the defendant's belief in the need for self-defense was reasonable under the objective circumstances, not under his subjective perceptions based on his delusions or hallucinations. (Accord, People v. Elmore, supra, 59 Cal.4th at p. 140 ["A claim of unreasonable self-defense based solely on delusion is quintessentially a claim of insanity under the M'Naghten standard of inability to distinguish right from wrong"].) No such error appears here.
2. Instruction on Sanity Finding
The trial court instructed the jury pursuant to CALCRIM No. 3450 as to the consequences of a finding of not guilty by reason of insanity. As pertinent here, the instruction provided: "If you find the defendant was legally insane at the time of his crimes, he will not be released from custody until a court finds he qualifies for release under California law. Until that time he will remain in a mental hospital or outpatient treatment program, if appropriate. He may not, generally, be kept in a mental hospital or outpatient program longer than the maximum sentence available for his crimes. If the state requests additional confinement beyond the maximum sentence, the defendant will be entitled to a new sanity trial before a new jury. Your job is only to decide whether the defendant was legally sane or insane at the time of the crimes. You must not speculate as to whether he is currently sane or may be found sane in the future. You must not let any consideration about where the defendant may be confined, or for how long, affect your decision in any way." The predecessor to this instruction, CALJIC No. 4.01, was "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; see also People v. DeHoyos (2013) 57 Cal.4th 79, 146 [same].)
Defendant contends the trial court erred in failing to modify this instruction to inform the jury that he was facing a life sentence and there was no risk he would be "precipitously" released. We reject this contention. First, defendant did not raise it below and has therefore forfeited it. (People v. Kelly, supra, 1 Cal.4th at p. 538 [where defendant neither requested nor objected to giving CALJIC No. 4.01, "[g]iven the instruction's intent to protect the defense, we do not find it error of which the defendant can complain to give it under these circumstances, and certainly not prejudicial error"]; see People v. Leeds, supra, 240 Cal.App.4th at 835 [defendant having requested CALCRIM No. 3450, he could not complain on appeal that it was misleading]; see generally People v. Virgil, supra, 51 Cal.4th 1210 [failure to object to instruction forfeits claim on appeal]; People v. Fernandez (2013) 216 Cal.App.4th 540, 559 ["Failure to object below to an instruction correct in the law forfeits the claim on appeal"].)
In any case, the contention is meritless. The instruction informed the jury that if it found defendant legally insane, he could remain in custody for the length of the maximum sentence for his crimes, unless he was found to be not sane in a new sanity hearing. (See People v. Moore (1985) 166 Cal.App.3d 540, 556 [upon request, jury should be informed, inter alia, that defendant found insane cannot be removed from confinement until sanity has been restored or "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 rather than not guilty by reason of insanity"].) The jury had already convicted defendant of murder and attempted murder and found true various enhancements. There is no basis to conclude it assumed the maximum sentence for those crimes was anything but lengthy, or that it was misled in any way by CALCRIM No. 3450.
C. Consecutive Sentences
Defendant asks us to order the trial court to issue an amended abstract of judgment reflecting concurrent sentences for counts one and two. He contends the court did not specify whether the counts should run concurrently or consecutively, and therefore, under section 669, they should be deemed to run concurrently.
Section 669, subdivision (a), provides in part: "When a person is convicted of two or more crimes, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same judge or by different judges, the second or other subsequent judgment upon which sentence is ordered to be executed shall direct whether the terms of imprisonment or any of them to which he or she is sentenced shall run concurrently or consecutively. . . . Whenever a person is committed to prison on a life sentence which is ordered to run consecutive to any determinate term of imprisonment, the determinate term of imprisonment shall be served first . . ." Subdivision (b) provides in part: "Upon the failure of the court to determine how the terms of imprisonment on the second or subsequent judgment shall run, the term of imprisonment on the second or subsequent judgment shall run concurrently." The Attorney General contends section 669 is inapplicable because the court imposed only one judgment in a single proceeding. Because we conclude the trial court expressly imposed consecutive sentences, we need not consider this contention.
We reject this contention. During the sentencing hearing, the trial court first set the sentence for count two, attempted murder, as a determinate term of 27 years. The court then imposed an indeterminate term for count two, second degree murder, of 36 years to life, "which would commence after the determinate term." Although the court did not use the word "consecutive," the court's statement makes clear that the terms were intended to run consecutively, rather than concurrently.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Schulman, J. We concur: /s/_________
Streeter, Acting P.J. /s/_________
Reardon, J.
Judge of the Superior Court of California, City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.