Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF101499A
RAYE, Acting P. J.A jury convicted defendant Rainer Christopher Wilson of elder abuse likely to cause great bodily injury or death upon B.T. (Pen. Code, § 368, subd. (b)(1)—count 1); battery on a peace officer, a misdemeanor (§ 243, subd. (b)—count 2); providing false information to a peace officer, a misdemeanor (§ 148.9, subd. (a)—count 3); and battery upon B.N., a misdemeanor (§ 242—count 4). In connection with count 1, the jury found that defendant personally inflicted great bodily injury on a person older than 70 years of age. (§ 12022.7, subd. (c).) In a separate sanity trial, the jury found that defendant was sane at the time of the offenses. In bifurcated proceedings, the court sustained two prior prison term allegations. (§ 667.5, subd. (b).)
All further statutory references are to the Penal Code.
Sentenced to state prison, defendant appeals. He contends (1) the prosecutor committed prejudicial misconduct in her argument to the jury during the guilt phase of the trial, misstating the law with respect to the knowledge element of the offense of elder abuse; (2) insufficient evidence supports the jury’s sanity finding, violating defendant’s “state and federal constitutional right to due process of law and must be reversed with prejudice”; and (3) the court erred in instructing the jury in the sanity phase of trial. We will reverse the judgment and remand for new trial.
FACTS
Guilt Phase of Trial
About 10:00 a.m. on August 26, 2006, B.N., the manager of a market, asked defendant to leave the store because he was causing a disturbance. Defendant refused and headed to the produce department with B.N. and another employee in pursuit. Defendant picked up a bowl used for weighing produce and threatened to kill store employee C.C. Defendant then said he would kill a woman’s “baby” with the bowl, holding it to the infant’s face. Moving on to the delicatessen department, defendant hit B.N. in the head with the bowl, then dropped it and started running through the store.
Once in the dairy department, defendant ran by 80-year-old B.T. and punched her in the face, causing her to fall to the floor with blood coming from her nose and mouth. The blow fractured B.T.’s eye socket, her nose, and her front teeth and dental bridge. B.T. also suffered bruised ribs.
Employees continued to follow defendant around the store while he threw items at them. An employee finally tackled defendant and, with the assistance of several other employees, held him down at the front door. Defendant struggled to get away, saying things about God or Jesus and about killing someone’s mother.
Police officers arrived and found that defendant was sweating profusely and unable to track movement with his eyes, the pupils of which were dilated. Defendant asked an officer if he was God or Jesus. When asked why he hit the elderly woman, defendant claimed he could save and heal her. When asked if he had used drugs, defendant said that he “had to do it one more time,” explaining that he meant “crystal” and “cocaine.” The officer believed “crystal” referred to methamphetamine. Defendant did not answer when asked when he had last used drugs.
At the store, defendant identified himself as Chris Rainy, Christian Fontier, and Christian Rainey. Defendant had on his person an envelope addressed to Christian Fontier, and officers drove defendant to the address on the envelope. Defendant said he lived with his mother, and once at the house, officers spoke with her. Defendant then identified himself as Rainer Wilson.
When the officers drove defendant away from his home, he became agitated, screamed racial slurs, and accused the officers of being racist. Defendant spit on one of the officers when the officer said defendant was the only one using racial epithets. Although defendant calmed down in the car after the spitting incident, he continued to scream periodically, sing songs, and talk about Jesus.
The defense called two psychologists to explain defendant’s mental disorder and to testify regarding the knowledge element of the elder abuse charge and the intent to evade proper identification element of the false information charge.
Dr. John Chellsen interviewed defendant when he was taking antipsychotic medication. Based on defendant’s description of his symptoms, family history, abuse of drugs and alcohol, and deterioration since his teens, Dr. Chellsen diagnosed defendant as a paranoid schizophrenic, that is, someone who suffers from hallucinations, usually grandiose or persecutory in nature, and delusional thinking. Dr. Chellsen explained that someone with schizophrenia is able to make decisions and function even when hallucinating. Although agreeing that methamphetamine use seriously exacerbates and mimics many symptoms associated with paranoid schizophrenia, including paranoia, delusions, and unclear thinking, Dr. Chellsen believed that defendant suffered from a mental defect or disease because the disorder was apparent while defendant was in custody and not abusing alcohol and drugs for an extended period of time.
Dr. Wendy Weiss also interviewed defendant and concluded that he suffered from a “psychotic disorder not otherwise specified,” that is, schizophrenia, paranoid type; the symptoms were present but the duration, etiology, and nuances of the disorder were not clear. Dr. Weiss explained that a person who hallucinates may not be able to differentiate reality or control his behavior. She also diagnosed him with polysubstance dependence. Although agreeing that drug use can cause and exacerbate psychotic symptoms and paranoia, Dr. Weiss believed defendant suffered from a psychotic disorder because he exhibited symptoms before and after the date of the offenses and, according to defendant, had previously sought treatment.
The evidence presented during the sanity phase of defendant’s trial will be set forth in our discussion of his challenge to that portion of the proceedings.
DISCUSSION
I. Prosecutorial misconduct
Defendant first contends that the prosecutor’s argument to the jury during the guilt phase of the trial misstated the law with respect to the knowledge element of the offense of elder abuse, lowering the prosecution’s burden of proof and violating defendant’s right to a fair trial. We disagree.
In her closing argument, the prosecutor discussed the knowledge element of the offense of elder abuse as follows:
“Now, the second element that I must prove beyond a reasonable doubt is that when defendant acted, he knew or reasonably should have known that [B.T.] was an elder. And that’s someone who is at least 65 years old.
“Is there any question that the lady who you saw here, [B.T.], is not an elder? She’s an elderly lady. Witnesses told you that she looked like a grandma. She had graying hair. Although she’d like you not to remember that, but, you know, she’s a feisty elderly woman. She, in every sense of the word, is elderly. There is no question there. And, furthermore, she told you that she was 80 years old when this happened. Now, a reasonable person therefore would know that she is elderly.
“[Defense counsel]: You know, I don’t think that’s the standard whether it’s a reasonable person, so I’m going to object to that argument.
“The Court: I’ll overrule the objection.
“[Prosecutor]: You even heard from witnesses who were present at the scene that they looked at her and thought she was elderly and thought that she was a grandmother. That is what the law defines as the element. That either the defendant knew or that it was reasonable for a person to have known that she was an elder.
“Now, there’s an or in that element. It’s either that the defendant knew or that a reasonable person would have known.
“[Defense counsel]: I’m sorry, I have to reiterate that objection. I’ll just ask that it be a continuing objection.
“The Court: The section says the defendant knew or reasonably should have known that [B.T.] was an elder. That’s what the elements are.
“[Prosecutor]: Okay. So when we look at this element that the defendant knew, is there any question that he didn’t know that she was an elder?
“When you hear testimony that one of the first things that he does when he walks up into that store is he identifies a baby. He walked into that store, as you heard witnesses say, and said to the mother with her child in a stroller, ‘I’ll kill that baby.’
“Now, based on that, that shows you that he knows the difference between young and old. He knows a baby when he sees a baby.
“And let me also point out the evidence that you heard from witness [C.C.], that when it -- when [B.T.] was in this aisle of all of these customers, there are somewhere about 20 customers, and of those customers that he remembers, there was not another elderly person that he can recall having seen. That is when [sic] he testified to.
“So when one walks in and can identify that there’s a baby, and then to turn around and say that he doesn’t know or to present evidence that he doesn’t know for some reason that this is an elderly woman, that just doesn’t make sense. That’s not reasonable.”
The court instructed the jury on elder abuse in the language of CALCRIM No. 830, in relevant part, as follows:
“To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant willfully inflicted unjustifiable physical pain or mental suffering on [B.T.]; and [2.] when the defendant acted, he knew or reasonably should have known that [B.T.] was an elder. [¶] Someone commits an act willfully when he does it willingly or on purpose.”
The trial court correctly told the jury, and later formally instructed the jury, that the offense of elder abuse required that “defendant knew or reasonably should have known” that B.T. was an elder. (CALCRIM No. 830; § 368, subd. (b)(1).) The prosecutor did not misstate that requirement.
Although cloaked in terms of prosecutorial misconduct, the true nature of defendant’s claim is that because of his mental impairment, the prosecution was required to prove that defendant knew or that “a reasonable person with a similar mental disability” would have known that his victim was an elder. He cites People v. Reyes (1997) 52 Cal.App.4th 975 (Reyes) and People v. Mathews (1994) 25 Cal.App.4th 89 (Mathews). Again, we disagree.
We first observe that the phrase “a reasonable person with a similar mental disability” is something of an oxymoron where, as here, the mental disability with which a person has been diagnosed is paranoid schizophrenia. At least in the eyes of the law, the ubiquitous “reasonable person” is not one who is a paranoid schizophrenic. But we need not wrestle with metaphysics here.
Pared to the bone, defendant’s argument is that the jury should have been instructed—and the prosecutor should have been required to argue—that the prosecution had to prove defendant knew his victim was elderly or that a “reasonable paranoid schizophrenic” would or should have known she was elderly. His defense then would have been that he did not in fact know his victim was elderly, and due to his schizophrenia, he could not be charged with that knowledge, objectively speaking. At its essence, the argument depends on the concept of diminished capacity.
Prior to 1981 California law recognized a defense of “diminished capacity” where the defendant had been charged with a specific intent crime or where it was necessary for the prosecution to prove malice, deliberation, and premeditation, and knowledge of a particular fact or facts. (1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Defenses, §§ 22, 23, pp. 351-354.) In 1981 the Legislature enacted section 28, which stated in part that “[a]s a matter of public policy there shall be no defense of diminished capacity, diminished responsibility, or irresistible impulse in a criminal action...” (§ 28, subd. (b)) and that “[e]vidence of mental disease, mental defect, or mental disorder shall not be admitted to show or negate the capacity to form any mental state, including... knowledge...” (§ 28, subd. (a)). Further, “[e]vidence of mental disease, mental defect, or mental disorder is admissible solely on the issue of whether or not the accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged.” (Ibid., italics added.)
In 1982, through the passage of Proposition 8, the electorate decided to abolish the defense of diminished capacity and decreed that in a criminal action, “evidence concerning an accused person’s... mental illness, disease, or defect shall not be admissible to show or negate capacity to form the particular purpose, intent, motive, malice aforethought, knowledge, or other mental state required for the commission of the crime charged.” (§ 25, subd. (a), added by Prop. 8, as approved by the voters, Primary Elec. (June 8, 1982).)
Defendant essentially argues that his paranoid schizophrenia should have been considered in determining whether he reasonably should have known that B.T. was elderly within the meaning of section 368, subdivision (b)(1) at the time he struck her. The argument is untenable given the provisions of sections 25 and 28 and the facts that the jury was properly instructed and the prosecutor did not misstate the law. There was no error.
The two cases upon which defendant relies are of no help to him here. In Reyes, supra, 52 Cal.App.4th 975, the defendant was charged with receiving stolen property in violation of section 496, subdivision (a). (Reyes, at pp. 979-980.) In defense of the charge, defendant offered, but the court precluded, the testimony of a psychologist intended to show that he did not know the property he had received was stolen. (Id. at p. 981.)
The Reyes court, noting that even a general intent crime “‘may... involve a specific mental state, such as knowledge’” (Reyes, supra, 52 Cal.App.4th at p. 983, quoting People v. Cleaves (1991) 229 Cal.App.3d 367, 380), held that evidence of the defendant’s mental impairment arising from the use of drugs was properly admissible because it went to an element of the crime, that is, whether the defendant in fact knew that the property he possessed had been stolen. The knowledge element of the crime of receiving stolen property made the offense a specific intent crime within the meaning of sections 22 and 28. (Reyes, at pp. 984, 985.)
Reyes does not apply to the facts before us. Actual knowledge that one’s victim is elderly is not alone an element of the crime of elder abuse. The knowledge element of the crime is that a defendant actually knows his victim was elderly or that he reasonably should have known that the victim was elderly. If the knowledge element of the crime with which defendant was charged required actual knowledge of a fact and nothing less, as it did in Reyes, an inability to gain that knowledge because of a mental defect arguably could provide a defense to the charge. But the knowledge element of the crime of elder abuse is stated in the alternative, i.e., that defendant must have known or reasonably should have known B.T. was elderly. Here defendant attempts to use his mental impairment to argue that he could not have formed the capacity to know that B.T. was elderly within the meaning of the statute, that is, that he could not gain the knowledge of an objectively reasonable person. His argument falls squarely within the prohibitions of sections 25, subdivision (a) and 28, subdivision (a).
Defendant also relies on Mathews, supra, 25 Cal.App.4th 89. In Mathews, the defendant was charged with exhibiting a firearm in the presence of a police officer in violation of section 417, subdivision (c). Because the defendant was blind and hearing impaired, he claimed he did not know that the people who were at his house were police officers. (Mathews, at p. 94.) The trial court refused to instruct the jury that concerning the element of the crime that a defendant must know or reasonably should know that the persons in his presence are peace officers, the defendant is charged with reasonably knowing only what a person who is blind and hearing impaired should know. (Id. at pp. 98-99.)
The Court of Appeal found error. The court held that “the failure to instruct on the principle of physical handicap, i.e., sensory impairment, was erroneous. It makes no sense, either in law or logic, to hold appellant to the standard of a reasonable person with normal eyesight and hearing.” (Mathews, supra, 25 Cal.App.4th at p. 99.)
We have no quarrel with Mathews, but the holding does not benefit defendant here. Mathews dealt with the effect of a physical impairment, which type of impairment does not come within the provisions of sections 25 and 28. If defendant here wanted to claim that he could not reasonably have known B.T. was elderly because for some reason he could not see her, he would have come within the holding in Mathews. But defendant’s impairment was mental and his argument depends on the now-abolished defense of diminished capacity.
Put succinctly, “[m]ental deprivation, in fact, never has been considered an attribute of the reasonable man.” (People v. Castillo (1987) 193 Cal.App.3d 119, 124.)
Again, there was no error.
II. SANITY
Defendant next contends that insufficient evidence supports the jury’s finding that he was legally sane at the time of the offenses. We disagree.
The defense called the same psychologists to testify at the sanity phase as it had called to testify at the guilt phase of the trial. The prosecution presented no evidence on the issue.
Dr. Weiss, appointed by the court to evaluate defendant’s sanity, reviewed the police report as well as prison and medical files, and interviewed defendant on January 19, 2007, for about 50 minutes. She had previously interviewed defendant in September 2006 and gathered information about his background and history. Based on defendant’s statements as reported to the police by witnesses, defendant’s self-reported mental health history during the interview, and Dr. Weiss’s review of the prison files, Dr. Weiss concluded that defendant was not sane at the time of the offenses; he suffered from a mental disorder, that is, “psychiatric symptoms, primarily delusional beliefs” that “distort[ed] his perceptions of reality.” She stated that the mental disorder “interfered with [defendant’s] ability to fully understand and know the nature and quality of his actions,” he was impaired to the point that he was “unable to distinguish right from wrong,” and that he was unable to “appreciate the wrongfulness of his behavior.” Dr. Weiss also diagnosed defendant as having polysubstance dependence. Defendant scored 55 on the Global Assessment of Function (GAF) in both interviews, meaning he had a mental illness and his functioning was somewhat impaired. The prison medical file “didn’t provide much additional information over and above the information that [Dr. Weiss] had from the crime report.” The prison medical file reflected that defendant had reported a history of hallucinations, and the file confirmed that defendant was taking the antipsychotic medication he claimed for schizophrenia, paranoid type and drug dependence.
During the January 19, 2007, interview, defendant had “limited recollection” of the offenses but did recall that “he had been reading the Bible outside the store” prior to the offenses and “he felt fearful” based on a “threat from a demon.” Defendant reported that he had been hearing voices since he was a child and experienced visual hallucinations later in life. He claimed that in March 2006 his mother had taken him to the county mental health department for treatment of paranoia, but he was not admitted for in-patient treatment, just given housing in a hotel. Defendant claimed his symptoms had improved since taking antipsychotic medication while in custody. Dr. Weiss believed that defendant was insane because of his mental disorder rather than his ingestion of illegal drugs.
Dr. Weiss could not express an opinion whether defendant was insane the night before the offenses when he chose to obtain and ingest the drugs. Even though she did not know whether defendant was in fact seen by a professional and did not try to obtain any such records, Dr. Weiss considered defendant’s claim that his mother took him to a mental health facility in 2006. Dr. Weiss said her opinion did not change based on the fact that defendant had given several names to officers after the offenses. His ability to provide directions to his home suggested to Dr. Weiss that defendant “started to deescalate to some degree.”
Defendant reported that when he was a child, he kept money from sales of candy for a school fundraiser; committed burglary; and engaged in fighting, fire setting, property damage, and animal cruelty. Dr. Weiss agreed a diagnosis of an antisocial personality disorder described those types of behavior and that malingering should be suspected where an antisocial personality disorder is present. She also agreed people can be antisocial and malingerers and be sane. Dr. Weiss concluded the antisocial personality disorder was a “rule out diagnosis” in defendant’s case. She did not use any tools to test whether defendant was malingering because she did not believe he was faking his symptoms based on her experience with mentally ill patients. Defendant told Dr. Weiss that he was a “con artist.” She agreed that her opinion would be unreliable if defendant had been lying.
Defendant stated he had been using illegal drugs on a daily basis. Dr. Weiss admitted that the side effects of extensive drug use may include paranoia.
Dr. Chellsen was appointed by the court to evaluate defendant’s sanity. Dr. Chellsen reviewed the arrest reports, witness statements, and a competency evaluation he conducted in September 2006, and interviewed the 28-year-old defendant on January 26, 2007, for about one hour. Defendant reported having graduated from high school. In junior high, he was placed in gifted student classes and remained in such classes for the first two years of high school. He had earned 25 credits in college and had been employed in the past. He denied prior hospitalizations. Defendant reported that he had abused alcohol from the ages of 12 to 16 years; had used cocaine, marijuana, and methamphetamine since adolescence; and that he had stopped cocaine use after his father died of a cocaine overdose. Defendant stated he had experienced auditory hallucinations—hearing evil, threatening, and negative voices—since he was 13 years old, and visual hallucinations—“seeing various demonic figures”—since he was 18 years old. Defendant claimed he was hearing voices and having visions while out in front of the store. He also reported that he had used methamphetamine and not slept for three days prior to committing the offenses. Defendant felt threatened and thought that if he got in the store, he would be safe. He detailed the offenses, except for punching B.T., and reported that he had falsely identified himself to the officers in order to avoid jail. Defendant claimed he first used prescribed medications in county jail in September 2006. Defendant had a flat affect. Dr. Chellsen did not confirm that defendant had been prescribed the medications he claimed.
Based on defendant’s statements, his self-reported history, the police reports, and Dr. Chellsen’s observations of defendant during the interview, Dr. Chellsen concluded that defendant was legally insane at the time of the offenses, in that he was “incapable of knowing and understanding the quality” and “wrongfulness” of his actions; he was “acutely psychotic” at the time of the offenses; and he was unable to differentiate his hallucinations from reality. Dr. Chellsen diagnosed defendant as suffering from paranoid schizophrenia but admitted that his symptoms were also similar to a person under a methamphetamine-induced psychosis. Dr. Chellsen noted that an amphetamine-induced psychosis clears after a period of abstinence. When defendant was not given antipsychotic medication for a few days, he reported having hallucinations, which meant his symptoms on the date of the offenses were not the result of an amphetamine-induced psychosis. Dr. Chellsen found that defendant’s statements and bizarre behavior in the store matched up to his claimed mental state.
Dr. Chellsen noted that defendant’s ability to remember his address, something “very well rehearsed,” or something “known for a long time” did not tend to be impacted by an acute mental disorder. Dr. Chellsen’s opinion of defendant’s insanity was not changed by defendant’s use of different names to identify himself.
Dr. Chellsen agreed it was a possibility that defendant had an antisocial personality disorder. When defendant described his symptoms, he slightly downplayed them, which was the opposite of someone who is a malingerer.
Defendant told Dr. Chellsen that it was likely he threatened the baby and hit the elderly lady, having mistaken them for demons. He said he sees angels and demons when he is under the influence of methamphetamine. Dr. Chellsen agreed that defendant was functional when he abstained from methamphetamine.
Dr. Chellsen did not express an opinion on whether defendant was sane prior to the offenses when he bought and ingested drugs. Defendant scored 25 on the GAF, meaning he was severely impaired when he committed the offenses while under the influence of methamphetamine. When he was not under the influence of methamphetamine but treated with antipsychotic drugs at the time of the interview, defendant scored 50 on the GAF, meaning he was moderately impaired with psychiatric symptoms still present but moderately stable and in remission.
Defendant argues that the jury found him sane at the time of the offenses even though both experts concluded he was insane. He argues the jury’s finding of sanity is not supported by sufficient evidence. We disagree.
Legal insanity is shown where the defendant proves by a preponderance of the evidence that he had a mental disease or defect when he committed the offenses and that he was incapable of knowing or understanding the nature and quality of his act or did not understand his act was morally or legally wrong. (§ 25, subd. (b); People v. Kelly (1992) 1 Cal.4th 495, 533; People v. Skinner (1985) 39 Cal.3d 765, 768-769 (Skinner I); CALCRIM No. 3450.) Defendant had the burden of proving by a preponderance of the evidence that he was insane at the time of the offenses. (People v. Drew (1978) 22 Cal.3d 333, 348-349, 351 (Drew).)
“[B]efore we can overturn the trier of fact’s finding to the contrary, we must find as a matter of law that the [trier of fact] could not reasonably reject the evidence of insanity.” (People v. Skinner (1986) 185 Cal.App.3d 1050, 1059 (Skinner II).) “[T]he 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.” (Drew, supra, 22 Cal.3d at p. 351.)
“The value of expert testimony in assisting the trier of fact on the sanity question depends on the material from which the opinion is drawn and on the reasoning of the witness.” (Skinner II, supra, 185 Cal.App.3d at p. 1060.) “‘“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.... [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... finding to the contrary.” [Citation.] Indeed [the Supreme Court has] frequently upheld on appeal verdicts which find a defendant to be sane in the face of contrary unanimous expert opinion. [Citations.]’ [Citations.]” (Id. at pp. 1059-1060.)
In People v. Coogler (1969) 71 Cal.2d 153 (Coogler), the defendant presented the testimony of three experts, a psychiatrist, a neurologist, and a clinical psychologist, who agreed that, based upon his diminished capacity, the defendant was unable to act with deliberation and premeditation to commit a murder; the prosecutor presented no contrary testimony by an expert. (Id. at pp. 161-166.) Coogler stated: “Although unanimity of expert opinion carries persuasive value [citation], a jury, under certain circumstances, can properly reject such opinions.... ‘“The chief value of an expert’s testimony in this field, as in all other fields, rests upon the material from which his opinion is fashioned and the reasoning by which he progresses from his material to his conclusion....”’ [Citation.]” (Id. at p. 166, italics omitted.) Coogler concluded the jury could properly reject the opinion of each expert because of doubt as to the material upon which each expert relied. (Ibid.) “In short, a jury in considering defendant’s capacity to premeditate and deliberate could properly accept defendant’s evidence or it could equally properly reject the lone psychiatrist’s opinion based upon defendant’s self-serving descriptions of his alleged past blackouts and lack of memory of the acts in question.” (Id. at pp. 167-168, fn. & italics omitted.)
Here, both experts concluded that defendant was “legally insane” at the time of the offenses, finding that he was unable to understand the nature and quality of his actions and was unable to distinguish right from wrong at the time of the offenses. We conclude the jury could have reasonably rejected their testimony.
Both experts interviewed defendant twice—the first time for a competency evaluation a month after the offenses, and the second time for a sanity evaluation five months after the offenses. Their testimony on sanity was necessarily speculative as to how defendant was behaving at the time of the offenses months earlier. Further, it does not appear that either Dr. Weiss or Dr. Chellsen investigated anything defendant told them. To the extent the experts relied on defendant’s statements, the jury could properly reject the opinions. (See Coogler, supra, 71 Cal.2d at pp. 167-168.)
Both experts agreed that methamphetamine use could mimic the psychotic symptoms displayed by defendant. Defendant reported to Dr. Chellsen that he used methamphetamine and had not slept for three days before committing the offenses. Defendant reported to both doctors that he began abusing alcohol and drugs at an early age and continued to abuse drugs up to the date of the offenses. This evidence tended to undermine the opinions of Drs. Weiss and Chellsen.
Both experts relied in substantial part upon defendant’s self-serving report of his symptoms and mental health history. Defendant admitted to Dr. Weiss that he was a con artist and that he had used drugs the night before the incident. Dr. Weiss admitted that defendant had symptoms suggesting an antisocial personality disorder, polysubstance abuse, and malingering. Dr. Weiss did not obtain and examine medical files of any claimed prior mental health treatment or conduct any test to determine whether defendant was malingering. Dr. Chellsen admitted he had not confirmed whether defendant was taking antipsychotic medication. Defendant admitted he gave officers his brother’s name to avoid going to jail. Defendant gave a detailed account of the offenses except for punching B.T. Dr. Chellsen did not believe defendant was malingering despite these deceptions.
Drs. Weiss and Chellsen did not arrive at the same diagnosis, the former concluding that defendant suffered from a psychotic disorder, not otherwise specified, and the latter concluding that defendant was a paranoid schizophrenic. Both scored defendant on the GAF, and their scores were different each time the test was administered. Neither obtained additional information from alleged treating doctors or attempted to corroborate defendant’s claims concerning his history or drug use.
We conclude there was substantial evidence to support the jury’s verdict of sanity. The jury could have reasonably rejected the contrary opinions of Drs. Weiss and Chellsen as unreliable. This is not the rare case where the unanimity of expert testimony authorizes us to upset the jury’s finding to the contrary. Sufficient evidence supports the jury’s finding that defendant was legally sane at the time of the offenses. There was no due process violation.
III. THE INSTRUCTIONS
Finally, defendant contends that the instructions during the sanity phase of the trial effectively directed a verdict, focusing on the following language in CALCRIM No. 3450 given to the jury here:
“If you conclude that at times the defendant was legally sane and at other times the defendant was legally insane, you must assume that he was legally sane when he committed the crimes.”
The language of CALCRIM No. 3450 at issue here was challenged in People v. Thomas (2007) 156 Cal.App.4th 304 (Thomas). As the People note, CALCRIM No. 3450 no longer includes the challenged language. Instead, the instruction now reads: “You may find that at times the defendant was legally sane and at other times was legally insane. You must determine whether (he/she) was legally insane when (he/she) committed the crime.” (CALCRIM No. 3450, revised April 2008.)
In Thomas, we agreed that the challenged portion of the instruction, when viewed in isolation, could be misleading, but when the instruction is viewed as a whole, we concluded that a reasonable juror would not have been misled. (Thomas, supra, 156 Cal.App.4th at p. 310.) “[T]he thrust of CALCRIM No. 3450 is to inform the jury that the burden is on the defendant to prove he was insane at the time of the offenses. This is consistent with section 25, subdivision (b). The instruction states that if the jury determines the defendant had a mental disease or defect at any time before he committed the offenses, the jury may conclude that same condition existed at the time of the offenses. It concludes by stating that, if the jury decides the defendant proved it is more likely than not he was insane at the time of the offenses, the jury must return a verdict of not guilty by reason of insanity. Thus, even if the jury was directed to ‘assume’ the defendant was sane, this assumption is subject to defendant presenting evidence to prove otherwise. An assumption of sanity, like an assumption of innocence, is just another way of saying the burden is on the party claiming otherwise to prove it.” (Thomas, at pp. 310-311.)
Defendant disagrees with Thomas and invites us to revisit the issue and reach a different conclusion. He also raises the issue to preserve it for federal review.
Though a Court of Appeal panel is free to disagree with a decision by another panel (Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 21 (conc. opn. of Baxter, J.)), we are generally loath to do so except for compelling reasons. “[D]espite the inevitable differences among justices of appellate courts, stare decisis remains a vital principle.” (People v. Bolden (1990) 217 Cal.App.3d 1591, 1598.) It is also significant that the Supreme Court denied review in Thomas, and this “‘may be taken as an approval of the conclusion there reached, but not necessarily of all of the reasoning contained in that opinion.’” (DiGenova v. State Board of Education (1962) 57 Cal.2d 167, 178, quoting Cole v. Rush (1955) 45 Cal.2d 345, 351, fn. 3.)
However, a denial of hearing is not an expression of the Supreme Court on the merits of the cause (McGlothlen v. Department of Motor Vehicles (1977) 71 Cal.App.3d 1005, 1018) and, for whatever worth it may have, three justices voted to grant the petition for review (Thomas, supra, 156 Cal.App.4th at p. 311).
However, stare decisis is of less force in cases where the outcome is controlled by a statute or an instruction that was later amended to address the issue resolved in the previously published decision. Indeed, in the present case the later alteration of the instruction, a tacit acknowledgment that the prior instructional language was problematic, insures that the Thomas decision, now only a little more than two years old, will have a limited shelf life; the language that it construed is no more. We also note that the Thomas opinion does not contain an extended discussion of the sanity evidence. Thus it is impossible to assess whether the error alleged by Thomas would have affected the outcome. Here, the sanity issue was very close, and consequently the instructional issue is critical. In light of these factors, we accept defendant’s invitation and will revisit the issue previously considered in Thomas.
Defendant makes the same argument as the defendant in Thomas: “Defendant contends that, because virtually all mentally ill persons have lucid moments, the [challenged] portion of this instruction effectively directed a finding of sanity. According to defendant, the instruction ‘require[d] [the] jury to find [him] sane even though he might have been insane at the time of the crime if at any other time he was sane.’ Defendant further argues a directed verdict was inappropriate, because he presented sufficient evidence of insanity to go to the jury.” (Thomas, supra, 156 Cal.App.4th at p. 309.)
Defendant goes further and argues a directed verdict against a defendant is never appropriate, no matter how overwhelming the evidence may be.
Defendant offers the example of testimony provided by Dr. Chellsen that he did not know whether defendant was sane when he last used methamphetamine and argues the jury was effectively directed to find defendant sane at the time he committed the offenses, because he may have been sane when he last used methamphetamine. Defendant also points out that the former CALJIC instruction properly focused the jury’s attention on a defendant’s mental state at the time of the crime: “When the evidence shows that at times the defendant was legally insane and at other times he was legally sane, he has the burden of proving by a preponderance of the evidence that he was legally insane at the time of the commission of the crime.” (CALJIC No. 4.04 (Fall 2006 ed.).) Conversely, CALCRIM No. 3450, according to defendant, requires the jury to find defendant sane even though he might have been insane at the time of the crime if he was sane at any other time.
Neither the prosecution in this case nor the court in Thomas effectively counters defendant’s argument. Both concede the challenged language cannot be applied literally and in isolation. To do so would create an irrebuttable and unconstitutional presumption that a defendant who is legally sane at any time must be presumed sane at the time he committed the crime. Only when “viewed as a whole,” in the words of Thomas (156 Cal.App.4th at p. 310), does the instruction become tenable. “Viewed as a whole,” the instruction could be construed to mean that you assume a sane person remains sane unless evidence shows the contrary. It is possible that jurors may have adopted this holistic view. However, the instructions were not structured or phrased in a manner that creates confidence in that outcome.
We appreciate that jurors are presumed to be intelligent people capable of understanding and correlating jury instructions. (People v. Carey (2007) 41 Cal.4th 109, 130.) In order to prevail on a claim that jury instructions are misleading, a defendant must demonstrate a reasonable likelihood that the jury misunderstood the instructions as a whole. (People v. Van Winkle (1999) 75 Cal.App.4th 133, 147.) It is also true, as pointed out in Thomas, that “[i]n evaluating a claim that the jury could have misconstrued an instruction, the test on review is ‘“‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution.”’ [Citation.]” (Thomas, supra, 156 Cal.App.4th at p. 310.)
Here, there is a reasonable likelihood. While Thomas concluded “the thrust of CALCRIM No. 3450 is to inform the jury that the burden is on the defendant to prove he was insane at the time of the offenses” (156 Cal.App.4th at p. 310), the awkwardly phrased language does not carry that thrust. And the usual cure for misleading instructions—that one must view the instructions as a whole—does not work in this instance.
According to Thomas, the instructions also told the jury “if [it] decides the defendant proved it is more likely than not he was insane at the time of the offenses, the jury must return a verdict of not guilty by reason of insanity” (156 Cal.App.4th at p. 310), and “[t]hus, even if the jury was directed to ‘assume’ the defendant was sane, this assumption is subject to defendant presenting evidence to prove otherwise” (id. at pp. 310-311). However, this later charge to the jury remained qualified by the assumption they were earlier told to make: that if at times he was legally sane and at other times legally insane, they must assume he was legally sane when he committed the crimes. The jury was never clearly told the assumption was rebuttable, and the jury had no way to know that this mandatory directive was actually subject to other instructions. Thus, the general instruction could not overcome the misleading specific instruction, notwithstanding the rule that instructions are to be construed together.
We therefore disagree with Thomas. While it is possible that the error in Thomas was harmless, that is not the case here. Although we have concluded there was substantial evidence to support the jury’s verdict, defendant also presented compelling evidence that he was insane at the time of the offense. Indeed, the only expert testimony presented at trial was to that effect, and though we earlier concluded the jury could reasonably reject defendant’s expert testimony, we cannot conclude a properly instructed jury would have considered the testimony in the same light. The instruction created a mandatory presumption that undermined defendant’s ability to establish his insanity at the time of the offense.
We reject defendant’s argument that the error is reversible per se but agree that it is subject to the harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705]. Our Supreme Court has applied the Chapman standard to criminal jury instructions that create impermissible presumptions. (People v. Roder (1983) 33 Cal.3d 491, 504.) We cannot declare the instructional error here to be harmless beyond a reasonable doubt.
DISPOSITION
The judgment is reversed and the case is remanded for new trial.
I concur: BUTZ, J., HULL, J.
I concur in Parts I and II of the decision, but I respectfully dissent as to Part III.
Notwithstanding the majority’s thoughtful discussion of an awkward and now revised instruction, in my view defendant’s argument concerning the legal sufficiency of former CALCRIM No. 3450 is without merit. Taking the instructions as a whole, no reasonable juror would have been misled by the wording of the version of CALCRIM No. 3450 given in this case. (People v. Thomas (2007) 156 Cal.App.4th 304.)