Filed 8/29/17 P. v. Alcala CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. John M. Davis, Judge. Affirmed with directions.

Arthur Martin, under appointment by the Court of appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Sabrina Lane-Erwin and Barry Carlton, Deputy Attorneys General, for Plaintiff and Respondent.

Following a jury trial, defendant and appellant Juan Carlos Alcala was found guilty of murdering Felipe Lozano (Felipe) and his two-year-old daughter, and attempting to murder Felipe’s mother. (Pen. Code,[1] §§ 187, subd. (a), 664.) It was further found true that he personally used a firearm. (§§ 12022.53, subd. (d), 1192.7, subd. (c)(8).) The jury rejected defendant’s insanity defense. He appeals, contending the evidence does not support the jury’s finding that he was sane, and the court erred in not requiring the jury to make separate sanity determinations as to each of the shootings. He further asserts that one of his multiple-murder special-circumstance findings must be stricken. We agree with his last claim but reject his others.

I. PROCEDURAL BACKGROUND AND FACTS

A. Guilt Phase.

Defendant lived with his wife and children in an apartment complex in Palm Desert, Apartment B6. Felipe’s mother and her sons lived next door in B5. On April 7, 2011, when Felipe arrived at his mother’s apartment, he greeted defendant with, “‘Hey, crazy man, how you doing?’” Thinking that defendant might do something to his truck in retaliation for the slight, Felipe watched his truck through a window. He saw defendant extending his arms as he walked beside the truck and he heard a screeching noise. Felipe ran out and found fresh scratches on the paint. Felipe confronted defendant and called the sheriff’s department. Defendant told him, “‘I’m going to kill you, dumb ass.’” Defendant denied scratching the truck, claiming he would not do something like that because he was a security guard. He received a citation.

The next day, Felipe brought his two-year-old daughter to his mother’s apartment. The two went to the playground while Felipe’s mother was in the kitchen preparing breakfast. As she looked for them to return, she saw Felipe, looking pale, gripping his daughter closely, trying to get through the gate into the apartment’s patio. She saw defendant behind Felipe with a gun. She opened the sliding glass patio door, and Felipe entered and fell in the hallway, clutching the baby. She closed the door; however, defendant shot through the glass, causing it to shatter. Defendant came through the door and fired more shots at Felipe, as well as her, hitting her in the leg and knocking her down. Defendant entered the apartment and continued shooting at Felipe. One of Felipe’s younger brothers came downstairs and tried to get out of the apartment. Felipe’s mother suffered two gunshot wounds. Immediately afterward, defendant ran back to his apartment.

Responding sheriff’s deputies found Felipe’s daughter on the floor, with a bullet hole above her left eye. Felipe was lying on his back in the kitchen, with several bullet holes in his clothing; his eyes were fixed open, he was not breathing, and his hand had a bullet hole through it as it was covering his heart. The deputies found over a dozen shell casings and an empty 10-round magazine for a Glock handgun. Defendant saw the deputies and called 911 to negotiate his surrender. Deputies searched defendant’s apartment and found a Glock .45-caliber semiautomatic handgun with an empty 10-round magazine.

Felipe died of multiple gunshot wounds. His daughter died from a gunshot wound to her head.

B. Sanity Phase.

The parties stipulated the jury could consider the evidence from the guilt phase in the sanity phase.

Five family members testified that, starting in 2009, defendant was convinced people were spying on him through a chip someone had implanted in his brain. He told his wife and one of his sisters it was the neighbors. He told another sister he thought it might have been someone from work. The chip allowed the people to spy on him and talk to him. The voices in the chip told him they were going to defraud him, kidnap his children, and rape his daughter. Defendant took countermeasures by wearing multiple pairs of goggles to make it hard for the chip “to see his information.” He put mirrors, Christmas ornaments, and tinsel around the apartment in order to deflect the voices and make it harder for the people to see. He once shut himself in a hot car so the people would “feel the heat that he was feeling.” He would also twist himself into uncomfortable positions so the people would feel “what he would do to his own body.” He shaved off all his body hair on the theory that he would not hear the voices. One time a relative found him with his head in the toilet. He explained it was so he would not hear the voices from the chip. Defendant’s mother also suffered from hallucinations and believed her neighbors were spying on her and trying to harm her.

Defendant worked as a security guard and was good at it. His employer of five years found him reliable and trustworthy. One day in 2010, defendant came in and explained to his boss about the chip in his head, that the neighbors were using it to spy on him, and they would talk to him through it. His boss referred him to Riverside County Mental Health. Defendant, after taking some time off work, came back and said he now realized it was all in his head. He seemed better.

Two psychologists interviewed defendant: Dr. Martha Rogers, a forensic neuropsychologist, interviewed him on the night of the shooting, and Dr. Michael Kania, a clinical forensic psychologist, interviewed him eight months later. On the night of the shooting, defendant insisted to Dr. Rogers that his victims were alive because he could hear their voices. He insisted the doctor was lying to him about their deaths, even after she showed him a photograph of the body of Felipe. He claimed he remembered nothing of the incident. He explained to her about the chip in his head, about the voices, and how people were following him. When the police left defendant alone with his wife, he told her the same thing about the victims being alive.

Dr. Rogers concluded defendant had paranoid schizophrenia, and had had it for some time. She found it significant that his mother had displayed similar symptoms. She believed defendant had an ongoing “delusional system” built around the neighbors. She believed defendant was insane during the shootings because of the length and stability of his delusions.

Dr. Rogers noted, however, that there were some signs pointing to defendant’s sanity during the events. First, defendant’s claimed memory loss was atypical. Dr. Rogers analogized bona fide memory loss to a slide show with missing images. Defendant’s claimed memory loss, however, was of the entire event, which suggested that it was “volitional.” The doctor noted that most schizophrenics are not assaultive, and that defendant had never previously displayed assaultive behavior.

Eight months later, defendant provided to Dr. Kania a detailed story of the shootings. He claimed that on the day of the killings, a voice told him to look outside his window. He did so, and saw two men holding his son. When the voices told him they were going to kill the boy, defendant panicked. He felt he had to save his son, so he followed the men into the apartment and shot at the ground. When he saw Felipe’s baby on the floor, he realized it was not his son, so he left the apartment.

Dr. Rogers was troubled that defendant had provided a different story to Dr. Kania. For her, it was a “tough call to understand what [was] going on”; however, it was “clear” there was “some confabulation.” Dr. Rogers opined that defendant’s claim of shooting only at the ground suggests an awareness of what he did was wrong, and it is “evidence that at that moment he is saying that he understands that it was a crime and wrong to shoot at a person.” Dr. Rogers continued: “So he is reconstructing eight or nine months later, and some of that we know not to be true and some of it could be self-serving.” Dr. Rogers thought that the claim of shooting only at the ground could suggest actual sanity, as could the claim of complete memory loss. Defendant’s hiding the gun in his apartment would suggest a sense that something had happened with the gun that defendant did not want people to know. Dr. Rogers acknowledged that the incident that happened the day before may have been the motivation for the killings. She opined it was possible that defendant had simply been acting out of anger. Defendant had told his wife afterwards that “‘what happened had to happen.’” This statement could be interpreted as meaning the defendant was not “going to put up with this any longer.” Also, Dr. Rogers thought it significant that defendant shot at people rather than other objects, and not just people, but specific people, stopping after he killed Felipe. The fact that defendant had to walk around the child, who was on the floor, to accomplish killing Felipe suggests goal-oriented behavior. Finally, Dr. Rogers opined that defendant’s statement to Felipe the day before, “‘I’m going to kill you, dumb ass,’” supports a finding of sanity.

Both Dr. Rogers and Dr. Kania opined that defendant was insane at the time of the shootings. Both ultimately rested their opinions, not on defendant’s actions on the day of the shooting, but on defendant’s history of delusions which were long-term and stable, beginning well before the shootings and persisting all the way to the present.

II. DISCUSSION

A. The Jury Could Reasonably Find Defendant Sane When He Shot the Victims.

Section 25, subdivision (b), provides the defense of insanity “shall be found by the trier of fact only when the [defendant] proves by a preponderance of the evidence that he or she was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense.” Although the statute uses the conjunctive “and,” rather than the disjunctive “or,” the Supreme Court has recognized that section 25, subdivision (b), establishes two distinct and independent bases on which a verdict of not guilty by reason of insanity may be returned. (People v. Lawley (2002) 27 Cal.4th 102, 170; People v. Skinner (1985) 39 Cal.3d 765, 769; see People v. Elmore (2014) 59 Cal.4th 121, 140.) The defendant’s incapacity to understand the nature and quality of his or her act or to know it was morally or legally wrong “‘“must be based on a mental disease or defect even though that requirement is not specifically mentioned in [Penal Code section] 25, subd[ivision] (b).”’” (People v. Blakely (2014) 230 Cal.App.4th 771, 774.) The defendant’s insanity need not be permanent to establish the defense; the relevant inquiry is whether he or she was insane at the time the offense was committed. (People v. Kelly (1973) 10 Cal.3d 565, 577, superseded by statute as stated in People v. Boyer (2006) 38 Cal.4th 412, 470.)

Insanity is a plea raising an affirmative defense to the crime charged. (People v. Hernandez (2000) 22 Cal.4th 512, 522.) The burden is on the defendant to prove by a preponderance of the evidence he or she was not sane at the time of the offense. (Id. at p. 521.) Mental health experts who have examined the defendant may assist the jury in determining his or her sanity. (People v. Williams (1988) 44 Cal.3d 883, 961.) However, even when the expert opinion is unanimous, jurors are not required to accept it. (People v. Drew (1978) 22 Cal.3d 333, 350, overruled on another ground by statute as set out in People v. Skinner (1985) 39 Cal.3d 765, 769.) Here, defendant offered the testimony of two experts, while the prosecution did not present any evidence during the sanity trial. The same happened in Drew. (Drew, supra, at p. 351.) Recognizing that the defendant has the burden of proof on the issue of sanity, the Supreme Court observed, “f neither party presents credible evidence on that issue the jury must find [the defendant] sane. Thus the question on appeal is not so much the substantiality of the evidence favoring the jury’s finding as whether [i]the evidence contrary to that finding is of such weight and character that the jury could not reasonably reject it.” (Id. at pp. 350-351, italics added.)

Defendant contends the jury’s finding that he was sane at the time he committed his crimes must be reversed, because the evidence of insanity was of such weight that a jury could not reasonably reject it. We disagree. Although the experts opined that defendant was legally insane, they explained that “insanity” is a legal concept, not a psychological one. To be found legally insane, a defendant must show that he 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).) Although defendant may believe there is a chip implanted in his head, he may still understand that killing is wrong and shooting directly at his neighbors will kill. One of defendant’s experts testified that it is possible for a person to operate under a delusion, but know right from wrong and appreciate the nature of his or her own actions. There is evidence that such was the case with defendant.

For years, defendant believed the neighbors were spying on him; however, he did not take any action until the day Felipe called him crazy. In response, defendant vandalized Felipe’s truck by scratching it. Felipe confronted defendant, saying that he was calling the sheriff’s department to report the crime. Defendant told Felipe, “‘I’m going to kill you, dumb ass.’” When the deputy sheriff arrived, defendant claimed that he would never do such a thing because he is a security guard.

The next day when Felipe returned to his mother’s apartment, defendant pursued him with a gun that had a fully-loaded magazine and a fully-loaded spare magazine.[2] Felipe was carrying his daughter as defendant followed, shooting at them. Two shots hit the child. When Felipe went inside the apartment, defendant continued to follow him by shooting through the glass door, injuring Felipe’s mother. Defendant walked over the child, past Felipe’s mother, and focused his attention on Felipe. Standing over Felipe, defendant fired several shots into his body and then returned to his apartment.

Back at his apartment, defendant attempted to hide his gun, told his wife that what happened had to happen, and then called 911. One of the experts opined that such actions suggest defendant’s awareness that his actions were wrong. Later that night, when defendant spoke to Dr. Rogers, he claimed that he had no memory of the event. Eight months later, he recalled what happened, but claimed that he thought Felipe and another male had his child and they were going to kill him. Confronted with defendant’s change in stories, Dr. Rogers testified that she was troubled by this “confabulation.”

Notwithstanding the above, defendant contends that comparing the facts of this case to those in People v. Duckett (1984) 162 Cal.App.3d 1115 (Duckett) is instructive. In Duckett, three experts testified that the defendant suffered from chronic paranoid schizophrenia and could not substantially appreciate the criminality of his conduct or conform his conduct to the requirements of the law. This testimony was uncontradicted. Nonetheless, the jury found that the defendant was sane at the time he murdered the victim. (Id. at pp. 1118-1119.) The appellate court reversed the jury’s determination that the defendant was legally sane, concluding that “there were no circumstances present that would have permitted the jury to reject the expert opinion” that the defendant was insane. (Id. at p. 1123.) That is not a conclusion we can reach in this case. Moreover, the Duckett case involved a different, more lenient, standard of insanity than that applicable now. At the time of the Duckett case, the California Supreme Court imposed the substantial capacity irresistible impulse test; however, in 1982, the electorate rejected such test in favor of the traditional M’Naghten test. (Skinner, supra, 39 Cal.3d at pp. 768-769 [history of “M’Naghten test” in California].)

Based on the above, it was reasonable for the jury to reject the experts’ opinions and conclude that defendant was sane at the time he committed the offenses.

B. The Trial Court Had No Duty to Instruct on Separate Sanity Verdicts.

“‘In criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury’s understanding of the case.’ [Citation.] That duty extends to ‘“instructions on the defendant’s theory of the case, including instructions ‘as to defenses “‘that the defendant is relying on . . . , or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.’”’”’ [Citation.]” (People v. Anderson (2011) 51 Cal.4th 989, 996.) In this case, the trial court instructed defendant’s sanity phase jury with CALCRIM No. 3450.[3] The jury received one verdict form that provided: “We, the jury in the above-entitled action, having previously found the defendant, JUAN CARLOS ALCALA, guilty of willful and premeditated murders as charged under counts 1 and 2 of the information and guilty of willful and premeditated attempted murder as charged under count 3 of the information, find that during the commission of the aforementioned offenses the defendant was: [¶] Legally sane: X Legally insane:___”

Defendant did not object to CALCRIM No. 3450 and the verdict form, nor did he request that either be modified in any respect. Nonetheless, he contends the trial court violated his constitutional right to due process by failing to sua sponte instruct the jury to render separate sanity verdicts for each offense. Although he notes that there are no California cases supporting his claim, he argues that, because the jury could have found him insane with respect to his shooting of the child and Felipe’s mother, but sane as to his shooting of Felipe, they should have been given the opportunity to do so. We disagree.

In his defense, defendant asserted that he was in a constant, stable delusional state that prevented him from knowing the nature or moral wrongfulness of his acts. In support of his assertion, defendant offered the testimony of family members, his work supervisor, the psychologist who interviewed him on the night of the shootings, and the psychologist who interviewed him eight months after the shootings. These witnesses provided testimony of defendant’s long-standing, continuing, delusional state. Defendant argued that the evidence showed that he had been delusional for several years before the shootings, continuing through the time of the shootings, and beyond. In contrast, the prosecution did not question that defendant was delusional. Rather, the People argued that defendant’s delusions did not make him insane. Neither side argued that defendant moved in and out of sanity, or that his mental illness ebbed and flowed.

When discussing jury instructions, the trial court referenced the recent decision in People v. Leeds (2015) 240 Cal.App.4th 822 (Leeds) and inquired into whether defendant’s delusion extended to Felipe’s mother and his child.[4] According to the trial court, CALCRIM No. 3450 needed modification pursuant to Leeds to address the issue of whether defendant was delusional as to some, but not all, of his shootings. Noting that the People may argue that defendant was delusional only as to specific acts, but not all, in contradiction of the defense arguing that defendant was delusional as to all his acts, the trial court inquired: “[H]ow does the jury know how to handle those two arguments which seem to be that you can’t reconcile the two?” Defense counsel objected to any suggestion that the jury be given the option to find defendant insane for only some of the killings. Counsel insisted that the record “is clear” that the defense is not requesting any modification of CALCRIM No. 3450 because the only evidence was that everything defendant did was part of his delusion.[5]

Notwithstanding the above, defendant argues that Leeds “demonstrates that separate and different sanity verdicts for different convictions can be supported by the evidence even if the offenses are part of one continuous transaction very close in time.” In Leeds, five mental health experts testified that the defendant had been insane when he committed four murders because he had been operating under a delusion that the victims were part of a Mexican drug cartel that wanted to kill him. (Leeds, supra, 240 Cal.App.4th at p. 827.) The jury found the defendant sane as to all four counts, but the appellate court reversed as to one count, for which evidence was presented that the defendant shot the victim in response to a perceived imminent lethal threat. (Id. at p. 833.) The court concluded the jury instructions were erroneous because they suggested the defendant’s belief in an imminent threat must be reasonable for the insanity defense to apply, whereas the appropriate question was whether, due to his mental disease or defect, the defendant actually believed he was in imminent danger of suffering death or great bodily injury. (Id. at pp. 832-833.) The analysis in Leeds, which involved an instructional error in a case where five experts testified the defendant was insane, does not assist defendant in his effort to show that the evidence in his case was sufficient to support separate sanity verdicts.

Based on the evidence and defendant’s theory of the case, the trial court had no duty to instruct the jury on separate sanity verdicts.

C. One of the Multiple-murder Special-circumstance Findings Should Be Stricken.

Defendant contends, and the People concede, that one of the two multiple-murder special-circumstances findings must be stricken. We agree.

Defendant was convicted of two counts of first degree murder, and the jury made true findings on two multiple-murder special circumstances. (§ 190.2, subd. (a)(3).)[6] Only one multiple-murder special circumstance may be found true. (People v. Halvorsen (2007) 42 Cal.4th 379, 422.) The appropriate remedy is to strike or vacate the superfluous finding. (Ibid.)

III. DISPOSITION

We vacate one multiple-murder special-circumstances finding and otherwise affirm the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

MCKINSTER

J.

FIELDS

J.