P. v. Derouen

Filed 8/4/06 P. v. Derouen CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Christine K. Goldsmith, Judge. Affirmed as modified.

A jury convicted Junius Derouen of first degree murder (Pen. Code, §§ 187, subd. (a), 189), making a criminal threat (id., § 422), felony child abuse (id., § 273a, subd. (a)), misdemeanor battery on a peace officer (id., § 243, subd. (b)), and misdemeanor vandalism (id., § 594, subd. (a)(b)(2)(A)). The jury also found true allegations that Derouen personally used a deadly weapon, a knife, in committing the murder (id., § 12022, subd. (b)(1)), and had suffered a "serious felony" prior conviction (id., § 667, subd. (a)(1)), constituting a strike (id., §§ 667, subds. (b)-(i), 1170.12, 1192.7, subd. (c)(1)), and served a prior prison term (id., § 667.5, subd. (b)). The trial court sentenced Derouen to 66 years four months to life in state prison.

Derouen appeals contending that his convictions must be reversed because the trial court erred by: (i) admitting evidence of his prior conviction for voluntary manslaughter; (ii) admitting evidence of prior acts of domestic violence by Derouen against the murder victim; (iii) instructing the jury pursuant to the standard jury instructions relating to the admission of evidence of prior crimes; and (iv) ruling that the evidence Derouen presented to support his plea of not guilty by reason of insanity was insufficient to be considered by the jury. Derouen also contends that his sentence is unlawful because it was enhanced for both a prior prison term and a prior serious felony conviction based on the same offense in violation of People v. Jones (1993) 5 Cal.4th 1142 (Jones).

We reject each of Derouen's contentions regarding his convictions, but agree, as does the Attorney General, that the trial court's sentence violated the rule announced in Jones. Consequently, we will strike the one-year prior prison term enhancement, and affirm the judgment as modified.

FACTS

In 2003, Derouen and his wife, Amy Derouen (Amy), lived together in New Mexico along with Derouen's four-year-old son by another woman. While Amy was living in New Mexico, she often came to work with injuries, such as bruises, bloody noses and lips, which she informed her colleagues she suffered at the hands of Derouen.

In July 2003, Amy arranged to move in with a friend, Jessica Saiz, to escape her abusive home environment. The day she was to move in, however, Amy called Saiz to say that Derouen "was threatening to kill her" and she was leaving immediately for California to get further away from him. One of Amy's coworkers saw her on the day she departed for California and testified that Amy was crying, scared and in a hurry.

When Amy reached California, she stayed with a friend, Irene Epling, and Epling's friend Kim Jackson in an apartment in La Mesa. Amy continued to speak with Derouen by telephone from California, and Derouen and his son occasionally came to visit.

At some point in 2003, Amy asked Derouen to mail her some items that she had left behind in New Mexico. In September 2003, Derouen called to say that he would be coming to San Diego to deliver them personally. Amy moved out of Epling's apartment in advance of Derouen's visit, informing her friends that she did not want to bring any trouble to their home.

On September 12, 2003, Derouen sold all of the furniture and possessions in his New Mexico apartment to a neighbor for $250. He then drove from New Mexico to San Diego, arriving at around 11:30 a.m., on September 13. Accompanied by his son, Derouen promptly went to Epling's apartment asking for Amy. When he learned that she was not there, Derouen informed Epling that he would be getting a motel room and would call later. Derouen called Epling to say he was staying at a local EZ‑8 Motel in room 414. Derouen, increasingly agitated, later called Epling again to ask if she had gotten in touch with Amy.

Later that afternoon, Amy, Epling and Jackson met to discuss how Amy might safely meet with Derouen to collect her belongings and inform him that she was not going back to New Mexico; Amy "didn't know how he was going to take it." Amy, crying and frightened, informed her friends that Derouen was "going to be the death of her." At the meeting, Amy decided not to meet with Derouen, but later changed her mind.

After Amy left her friends, Epling repeatedly tried calling her cell phone, but was never able to get through to Amy. Instead, on two occasions Derouen answered. The first time, Derouen said that Amy had taken [R.] to McDonald's. The second time, he said Amy was "a little tied up." Alarmed, Epling and Jackson decided that Jackson, along with a friend Alan McGee, would go to the motel to look for Amy, while Epling remained at her apartment trying to get in touch with Amy by telephone.

After Jackson left the apartment, Derouen arrived. He banged angrily at the front door, "screaming" profanities at Epling for several minutes. Derouen was screaming "at the top of his lungs" that it was Epling's fault that people had to die; that it was her "turn," she "should die, too"; he wanted her to "feel the pain that he was feeling"; and Epling should come out and get what she was "supposed to get." Epling, who was aware that Derouen had killed someone in the past, did not answer the door, and hid, terrified, in the apartment. Derouen then left, later leaving a series of messages on Epling's answering machine between 6:21 p.m. and 9:18 p.m. The messages, laced with profanity, include the statements: "Ya'll hurt me bad man, my [son] too"; "So you don't want to die tonight? But you'll let everybody else die tonight. That's coward shit . . . ya'll gonna remember me!"

At the EZ‑8 Motel, Jackson and McGee found Amy's van parked near Derouen's room. They knocked on the door of room 414 at 7:00 or 7:30 p.m. and received no answer; the television was on "extremely loud" in the room. Jackson went to the motel office and told the clerk that she believed her friend was in serious danger. The clerk entered the room with a motel key and found Amy dead in the bathtub.

Amy had been stabbed 24 times with two kitchen knives found in the bathroom; she also suffered multiple cuts and blunt force injuries, including a number of defensive wounds. One of the knives used in the attack was broken into three pieces. There were bloody footprints on the bathroom floor that matched the flip flops Derouen was wearing when he was later arrested.

After speaking with Epling and Jackson, the police staked out their apartment and arrested Derouen when he returned again at 11:10 p.m. The police searched Derouen's car and found a folding knife under the seat, and a number of beer cans. A knife matching the two knives found in the motel bathroom was found in the trunk. Derouen's son was crying and hysterical in the car.

When he was arrested, Derouen had superficial scratches on his upper left arm and his lower left leg, and apparent spots of blood on his feet. Derouen was uncooperative, refusing to give a blood or urine sample until forced. While being restrained at the police station, he kicked a police officer in the groin.

The knives used in the murder and found in Derouen's car were part of a set that the police later located in Derouen's New Mexico apartment. Blood traces on Derouen's watch and flip flops were analyzed and matched Amy's DNA.

Derouen's son, who was one month shy of his sixth birthday at the time of trial, told police in a videotaped interview that his father murdered Amy, and testified similarly at trial. Derouen's son stated that while Derouen was stabbing Amy in the bathtub, Derouen told him to get out of the bathroom, and told Amy, "Shut up, nobody can save you now."

DISCUSSION

We evaluate each of Derouen's challenges separately below.

I

The Trial Court Did Not Abuse its Discretion in Admitting Evidence of

Derouen's Prior Manslaughter Conviction

Derouen contends that the trial court erroneously admitted evidence of his prior conviction of manslaughter, and that this error violated his constitutional rights under the federal and state Constitutions.

A

Background

At trial the prosecutor moved in limine to introduce evidence of Derouen's 1991 voluntary manslaughter conviction. The prosecutor argued the evidence was relevant on two grounds: (i) it provided evidence of Derouen's intent on the first degree murder charge; and (ii) it provided evidence to support the criminal threats charge because the victim of the threats was aware of Derouen's previous conviction. Derouen objected on the grounds that the "similarities" between the prior conviction and the instant offense made its admission "hugely prejudicial."

The court overruled Derouen's objections to the evidence, ruling that under Evidence Code^[1] section 1101, the prior incident was admissible on both grounds noted by the prosecution, and any undue prejudice from the evidence did not outweigh its probative value under section 352. The court granted Derouen's subsequent request for a limiting instruction that the evidence could be used only "for purposes of intent and for the [threats] victim's knowledge of [Derouen's] background."^[2]

The prosecution then introduced testimony that in September 1990, during a heated argument, Derouen killed his cousin with a kitchen knife. The court also took judicial notice of Derouen's resulting March 1991 conviction for voluntary manslaughter.

B

The Trial Court Did Not Abuse Its Discretion in Admitting the Evidence

Section 1101 permits the introduction of "evidence that a person committed a crime" when that evidence is "relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act." (§ 1101, subd. (b); People v. Gray (2005) 37 Cal.4th 168, 202 (Gray).) Because such evidence may be highly inflammatory, " ' "its admissibility should be scrutinized with great care" ' " under both sections 1101 and 352. (Gray, at pp. 202, 204.) A trial court's ruling admitting such evidence under sections 1101 and 352 is reviewed for abuse of discretion. (Gray, at pp. 202, 204.)

In the instant case, the trial court did not abuse its discretion in ruling that the evidence of Derouen's prior killing was relevant on issues other than criminal disposition and therefore admissible under section 1101. The evidence was relevant both with respect to an element of the criminal threats charge and to the prosecution's contention that the murder was premeditated -- i.e., with respect to the requisite intent for the first degree murder charge.

To prove the offense of criminal threats, the prosecution had to establish, among other things, that "the [alleged] threat actually caused the person threatened 'to be in sustained fear for his or her own safety,' " and that the "fear was 'reasonabl[e]' under the circumstances." (People v. Toledo (2001) 26 Cal.4th 221, 228.) "The victim's knowledge of defendant's prior conduct is relevant in establishing that the victim was in a state of sustained fear." (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) Here, the victim of Derouen's criminal threat, Epling, testified she was aware that Derouen had previously killed a relative with a knife, and that this fact increased her subjective fear of Derouen's threats. Consequently, Derouen's prior offense was relevant to material issues other than criminal disposition -- i.e., whether Derouen's threats placed Epling in a state of sustained fear and whether that fear was reasonable -- and therefore was admissible under section 1101.

In addition, a prior criminal act is admissible under section 1101 to demonstrate that the defendant acted with the requisite criminal intent in committing the instant offense and to " 'negative accident or inadvertence or self-defense or good faith or other innocent mental state.' " (People v. Ewoldt (1994) 7 Cal.4th 380, 402; Gray, supra, 37 Cal.4th at p. 202.) Here, Derouen's primary defense to the first degree murder charge was that he killed Amy in the heat of passion and without premeditation, and therefore lacked the requisite mental state required for conviction of first degree murder. The prosecution countered by arguing that Derouen planned Amy's murder from the time he left New Mexico. In support of this argument, the prosecution introduced the circumstances of Derouen's prior offense -- that Derouen had previously killed with a kitchen knife -- to argue that his inclusion of three kitchen knives among the few belongings he brought to California was not innocent, as the defense contended, but part of a premeditated plan to kill Amy.^[3] As the evidence of Derouen's prior offense under this theory was again relevant to a material issue other than criminal disposition (i.e., Derouen's intent), it was admissible on this ground as well under section 1101.

Derouen contends that even if the trial court did not abuse its discretion under section 1101, it abused its discretion under section 352 by determining that the probative value of the evidence under section 1101 was not "substantially outweighed by the probability that its admission [would] . . . create substantial danger of undue prejudice." (§ 352; Ewoldt, supra, 7 Cal.4th at p. 404 [evidence admissible under section 1101 must still be evaluated under section 352].)

We disagree that the trial court abused its discretion under section 352. As discussed above, evidence regarding Derouen's prior offense had significant probative value, and we cannot say, as a matter of law, that this probative value was "substantially outweighed" (§ 1101) by the danger of undue prejudice. In fact, any potential prejudice from the jury's learning of Derouen's prior crime was limited in this case by a number of factors. First, the jury was informed that Derouen had already been convicted of the prior offense and so would not "have been inclined to punish defendant for the uncharged offense[]." (Ewoldt, supra, 7 Cal.4th at p. 405.) Second, given the inflammatory facts of the instant offense and the more serious nature of the first degree murder charge, it is highly unlikely that the jury would have sought to convict Derouen in this case based on an emotional reaction to his commission of the prior manslaughter. (Ibid. [prejudice under section 352 limited where "[t]he testimony describing defendant's uncharged acts . . . was no stronger and no more inflammatory than the testimony concerning the charged offenses"].) If the jury was inclined to be improperly swayed by the evidence of Derouen's prior offense, it would be, as the defense argued in closing argument, to assume that Derouen had a propensity to kill in the heat of passion (i.e., manslaughter), and that Derouen was again guilty only of manslaughter -- not murder.^[4] Third, the jury was specifically instructed not to consider the prior offense for criminal disposition -- the very risk of undue prejudice that Derouen contends required exclusion of the evidence. (People v. Michaels (2002) 28 Cal.4th 486, 535.) We must assume, absent contrary evidence, that the jury followed the trial court's instructions. (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.)

Having concluded that the trial court did not abuse its discretion in admitting the challenged evidence, we also conclude that admission of that evidence did not violate Derouen's constitutional rights. (People v. Kraft (2000) 23 Cal.4th 978, 1035; People v. Cudjo (1993) 6 Cal.4th 585, 611.) Finally, we note that given the overwhelming evidence of Derouen's guilt in this case, we would conclude that the admission of the evidence of Derouen's prior offense, even if in error, would not warrant reversal. (People v. Jablonski (2006) 37 Cal.4th 774, 822-823.)

II

The Trial Court Did Not Violate Derouen's Constitutional Rights or Abuse Its

Discretion in Admitting Evidence of Derouen's Prior Acts of Domestic Violence

Derouen contends that the trial court's admission of evidence of his prior acts of domestic violence against Amy under sections 1101, subdivision (b) and 1109 violated his federal and state constitutional rights to due process and equal protection. Derouen acknowledges that "[t]he law in this state is presently contrary to []his argument," and that "this Court may be bound by those decisions."

Section 1109, subdivision (a)(1) states that with exceptions not applicable here, "in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by Section 1101['s prohibition on propensity evidence] if the evidence is not inadmissible pursuant to Section 352."

Derouen's contention that the admission of evidence of prior domestic violence under section 1109 violated his due process rights has been repeatedly rejected by the courts of appeal considering the issue. (See People v. Hoover (2000) 77 Cal.App.4th 1020, 1029; People v. Brown (2000) 77 Cal.App.4th 1324, 1334; People v. Johnson (2000) 77 Cal.App.4th 410, 420; People v. Escobar (2000) 82 Cal.App.4th 1085, 1096; People v. Price (2004) 120 Cal.App.4th 224, 240 (Price); People v. Jennings (2000) 81 Cal.App.4th 1301, 1310 ["the constitutionality of section 1109 under the due process clauses of the federal and state Constitutions has now been settled"].) Those courts have relied on People v. Falsetta (1999) 21 Cal.4th 903, 916-918, where our Supreme Court rejected a due process challenge to section 1108, which applies an identical rule to evidence of prior sex crimes. We agree that Falsetta is controlling. As Derouen offers no analysis that would call into question the unanimous conclusion of the courts of appeal on this question or distinguish Falsetta, we conclude that Derouen's due process challenge is without merit.

Similarly, Derouen's claim that section 1109 violates his constitutional right to equal protection of the laws because defendants charged with acts of domestic violence are treated differently than those charged with other crimes, such as nondomestic violence murder, violent assault or burglary, has also been rejected by the courts of appeal. (Jennings, supra, 81 Cal.App.4th at p. 1313; Price, supra, 120 Cal.App.4th at p. 240; cf. People v. Fitch (1997) 55 Cal.App.4th 172, 184.) Again, Derouen presents no argument that calls into question the analysis of those cases, and we find them persuasive.^[5]

Finally, we reject Derouen's conclusory assertion that "the court abused its discretion under . . . section 352 by failing to rule that the prior [domestic violence] acts evidence was so prejudicial and tangential to the current offense that it ought to have been excluded." The trial court "enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time," and its exercise of that discretion " 'must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.' " (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)

Derouen fails to demonstrate any abuse of discretion. The prior acts of domestic violence introduced into evidence were particularly probative in this case because they concerned violent acts by Derouen against the same victim as the instant offense. (People v. Zack (1986) 184 Cal.App.3d 409, 415.) In addition, the potential for undue prejudice was minimal. Derouen's prior acts of domestic violence paled in comparison to the violence involved in the charged offense, and thus the jury was highly unlikely to seek to punish Derouen for the prior acts of domestic violence by convicting him of first degree murder, absent an abiding conviction that he was, in fact, guilty of that murder. (Jennings, supra, 81 Cal.App.4th at p. 1315 ["The prior incidents of domestic abuse introduced in this case were no more egregious than the charged offense, and posed no danger of confusing the jury. Nor do we believe that any inclination to punish appellant for his prior offenses was a significant factor in this case"].) The jury was, in fact, specifically instructed that it could not do so, even if it was so inclined.^[6] Consequently, Derouen has failed to demonstrate an abuse of discretion here.

III

The Trial Court's Instruction Regarding Prior Criminal Offenses Is Not Unconstitutional

Derouen contends that the standard instruction regarding evidence of prior criminal acts given by the trial court is unconstitutional because it "permits the jury to convict by a preponderance of the evidence rather than by proof beyond a reasonable doubt, and it permits use of the evidence of prior acts of domestic violence to deduce from them that appellant had a propensity to commit murder." (See CALJIC Nos. 2.50, 2.50.02, 2.50.1, and 2.50.2.)

As Derouen acknowledges, our Supreme Court has rejected this contention with respect to a virtually identical instruction in People v. Reliford (2003) 29 Cal.4th 1007, 1012. Derouen thus again concedes "[t]he law in this state is presently contrary to []his argument, and this Court may be bound by those decisions."

Derouen makes no effort to distinguish Reliford, instead suggesting that it was wrongly decided. As we are bound by Reliford and believe it controls, we reject Derouen's contrary contention that the standard CALJIC instructions violate "appellant's fundamental right to be convicted by proof beyond a reasonable doubt, in violation of his federal and state due process rights." In addition, Derouen's contention is virtually devoid of analysis -- providing an independent ground for its rejection. (See People v. Williams (1997) 16 Cal.4th 153, 215 [contentions " 'perfunctorily asserted without argument in support' " are not properly before appellate court]; People v. Stanley (1995) 10 Cal.4th 764, 793 [it is "not [the] role" of a reviewing court to "construct a theory" of relief for an appellant, but rather to evaluate " 'legal argument with citation of authorities on the points made' "].)

IV

The Trial Court Did Not Err in Removing from the Jury Derouen's Claim of

Not Guilty by Reason of Insanity

Derouen argues that the trial court erred in ruling that he failed to present sufficient evidence for his plea of not guilty by reason of insanity to be considered by the jury. Derouen contends that the trial court did not have the authority to take the issue from the jury, and even if the court did have the authority, it abused its discretion in doing so in this case.

A

Background

After the jury rendered verdicts on the underlying charges, and on the enhancement allegations, the trial court commenced a third proceeding with the same jury to consider Derouen's alternative plea of not guilty by reason of insanity. (See Pen. Code, § 1026.) The sole evidence presented at the proceeding consisted of written, court-ordered psychiatric evaluations of Derouen.^[7]

The first report by Dr. Jaga Glassman concludes, "There is no evidence to support a Not Guilty By Reason Of Insanity finding in this case. [¶] Eyewitness descriptions of [Derouen's] speech and behavior in the time leading up to the incident in question, and in the time immediately after the events in question, reflect no evidence of the presence of a psychotic disorder . . . ." While Glassman noted that Derouen was uncooperative during his examination, he accounted for Derouen's behavior as "malingering" because Derouen "behaved and spoke in a manner that is not consistent with any known mental disorder."

The second report by Dr. Alan Abrams, which was based on his interview with Derouen and a review of approximately 500 pages of psychiatric records, concludes "[t]here is no evidence that Mr. Derouen lacked the ability to distinguish right from wrong, or to know or understand the nature or quality of his actions." Dr. Abrams, in a follow-up report based on a second interview with Derouen, states that "with the exception of Mr. Derouen reporting occasional hallucinations at [Atascadero State Hospital] in 1992, there is nothing to suggest that Mr. Derouen has ever lacked the ability to distinguish right from wrong, or to know or understand the nature or quality of his actions."

After reviewing these reports, the court ruled that the evidence presented by the defense was insufficient to support a finding of not guilty by reason of insanity, and granted a prosecution motion to discharge the jury and strike Derouen's insanity plea. The court stated, "There is nothing in any of these reports that would suggest . . . that Mr. Derouen was insane at the time" of his crimes.

B

The Trial Court Did Not Err in Removing the Issue of Sanity from the

Jury's Consideration

Derouen points out, without any analysis or argument, that the issue of whether a trial court can constitutionally remove the issue of insanity from the jury has not been decided by our Supreme Court. Nevertheless, two courts of appeals have decided the issue and we find them persuasive.

A plea of not guilty by reason of insanity "rais[es] an affirmative defense to a criminal charge," but "does not negative an element of the offense." (People v. Hernandez (2000) 22 Cal.4th 512, 522 (Hernandez).) Rather the plea assumes that the defendant is guilty, but raises the possibility that he is nonetheless " 'not amenable to punishment under the law.' " (Ibid.) In People v. Ceja (2003) 106 Cal.App.4th 1071, 1089, the Second District, Division Four, concluded that in light of the special nature of this plea, "there is no constitutional infirmity, either under the California Constitution or the United States Constitution, for a judge to remove the issue of sanity from the jury when the defendant has failed to present evidence sufficient to support" it. Our colleagues reasoned, "As recognized by Justice Brown [concurring] in Hernandez, and the prior cases involving double jeopardy, courts retain an inherent power to remove an affirmative defense from the jury where there is no evidence to support it." Recently, in People v. Severance (2006) 138 Cal.App.4th 305, 317 (Severance), the Third District Court of Appeal agreed with Ceja, concluding that:

"Just as a criminal defendant may be 'precluded from presenting to a jury defense[s] such as unconsciousness [citation], diminished capacity [citation], [or] entrapment [citation], where there is insufficient evidence from which a reasonable jury could conclude that the particular facts underlying the instruction requested exist' (People v. Mapp (1983) 150 Cal.App.3d 346, 350 . . .), so a criminal defendant may be precluded, through the grant of a directed verdict, from presenting an insanity defense where the evidence is insufficient for a reasonable jury to find the defendant was insane at the time of his crimes."

We find Severance and Ceja persuasive, and thus, to the extent Derouen argues that the trial court lacked authority to take the question of insanity from the jury, we reject the argument. (See also Leach v. Kolb (7th Cir. 1990) 911 F.2d 1249, 1258; People v. Hill (Colo. 1997) 934 P.2d 821, 826.)

Derouen also contends that even if the trial court had the authority to take this issue from the jury, it erred in doing so here because he presented sufficient evidence that he was legally insane at the time of the crimes. The standard for review of the trial court's ruling is that employed in reviewing a directed verdict. (Severance, supra, 138 Cal.App.4th at p. 319.) Under this standard, we review the trial court's action de novo, and "look for substantial evidence from which the jury reasonably could have found defendant was not sane. If we find such evidence, then a directed verdict of sanity was improper." (Id. at p. 320.) Incorporating the definition of insanity into the standard of review, "the question here, then, is whether defendant offered sufficient evidence for a jury to reasonably conclude that, based on a mental disease or defect, he was incapable of: (1) knowing or understanding the nature and quality of his acts; or (2) distinguishing right from wrong when he" killed Amy. (Id. at p. 322.)

Derouen contends that this standard is met here because the expert reports recounted a childhood injury to Derouen's brain, low intelligence, a number of psychiatric hospitalizations and various mental health problems. We agree with Derouen that the psychiatric reports contain some evidence that Derouen had a history of mental disease or defect. The reports, however, fail to support the requisite conclusion that based on this mental disease or defect, Derouen was legally insane at the time he committed his crimes. (See People v. Coddington (2000) 23 Cal.4th 529, 608 [" 'Mental illness and mental abnormality, in whatever form either may appear, are not necessarily the same as legal insanity. A person may be mentally ill or mentally abnormal and yet not be legally insane' "]; CALIC No. 4.00.)^[8] To allow a jury to conclude that he could not be punished for his crimes, Derouen needed to present evidence not only that he had a mental disease or defect, but also that because of this mental disease or defect, he "was incapable of: (1) knowing or understanding the nature and quality of his acts; or (2) distinguishing right from wrong when he" committed those crimes. (Severance, supra, 138 Cal.App.4th at p. 322.) Derouen's presentation in the sanity proceeding was completely devoid of any such evidence. Consequently, the trial court acted properly in removing the issue of sanity from the jury's consideration.^[9]

V

The One-year Enhancement for the Prison Prior Must Be Stricken

Derouen contends that his sentence is unlawful because it was enhanced for both his prior prison term and a prior serious felony conviction based on the same offense, violating the rule of Jones, supra, 5 Cal.4th 1142. We agree, as does the Attorney General, that the trial court's sentence violated the rule announced in Jones. Consequently, we order the one-year prior prison term enhancement be stricken.

DISPOSITION

The case is remanded to the trial court with directions to strike the one-year enhancement of defendant's sentence for his prior offense of manslaughter under Penal Code section 667.5, subdivision (b), and to send to the Department of Corrections a corrected abstract of judgment. In all other respects, the judgment is affirmed.

IRION, J.

WE CONCUR:

McDONALD, Acting P. J.

McINTYRE, J.

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^[1] All further statutory references are to the Evidence Code unless otherwise specified.

^[2] The limiting instruction eventually given by the court, without objection, instructed the jury it could use this evidence only "for the purpose of showing, if at all, intent or motive," and the evidence "may not be used by you to simply state that Mr. Derouen, in your opinion, is a bad person." Later, the court again instructed the jury under CALJIC 2.50 that evidence of other crimes committed by Derouen "may not be considered . . . to prove that defendant is a person of bad character or that he has a disposition to commit crimes," but only "for the limited purpose of determining if it tends to show the existence of . . . intent."

^[3] The significance of the kitchen knives was squarely at issue in the trial; the defense contended in closing argument that the fact that Derouen brought some of the smaller kitchen knives in his set to San Diego negatived the inference of intent, and suggested as an alternate explanation for Derouen's bringing the knives that there had been a rope in Derouen's car holding the hood closed that had to be adjusted by a knife.

^[4] Derouen's counsel argued at trial that there were "a lot of similarities in th[e] two [offenses]" -- "[a] knife, heated words exchanged, somebody ended up dead, and Mr. DeRouen gets convicted of manslaughter"; "[t]hey got it right," counsel urged, "[i]t was a manslaughter."

^[5] As stated in Jennings, the constitutional requirement of equal protection of the laws in this context simply requires that " 'in defining a class subject to legislation, the distinctions that are drawn have "some relevance to the purpose for which the classification is made." ' " (Jennings, supra, 81 Cal.App.4th at p. 1311, quoting Estelle v. Dorrough (1975) 420 U.S. 534, 538-539.) We agree with Jennings and the other courts that have addressed this question that because of the unique nature of domestic violence, the Legislature could rationally distinguish between domestic violence offenses and other offenses, and thus there is no equal protection violation. (Jennings, at p. 1311.)

^[6] The jury was instructed: "If you find other crimes were committed by a preponderance of the evidence, you are, nevertheless, cautioned and reminded that before a defendant can be found guilty of any crime charged, or any included crime in this trial, the evidence as a whole must persuade you beyond a reasonable doubt that the defendant is guilty of that crime."

^[7] Defense counsel stated: "Your Honor, the only evidence that we have is a matter of record in the court file and that is from the [court-appointed] doctors that have examined Mr. Derouen. Other than that, we have no other additional evidence."

^[8] Derouen also contends that the jury should have been able to determine whether he was insane at the time of the offenses by "evaluat[ing] appellant's testimony in light of his demeanor and conduct in the courtroom." This contention, however, overlooks that Derouen did not testify in the sanity proceeding (or at any portion of the trial), and thus presented no testimony for the jury to evaluate. Similarly, Derouen contends in his reply brief that the evidence presented in the psychiatric reports could have "negat[ed] the intent required for conviction" of the substantive offenses. The reports, however, were not offered into evidence until after the jury had already returned convictions on the substantive offenses. Thus, there can be no argument that the trial court erred by depriving the jury of that evidence on "the issue of appellant's intent." (People v. Thuss (2003) 107 Cal.App.4th 221, 233 [where "defendant's trial counsel never offered the 23 warrant affidavits in evidence, and received no ruling on their admissibility, there is no ruling for this court to review, and defendant's contention of error may not be sustained"].)

^[9] The case Derouen cites for his contention that the trial court erred -- Hernandez, supra, 22 Cal.4th at pages 518, 527 -- is inapposite. Our Supreme Court in Hernandez ruled that the trial court erred in removing the question of sanity from the jury because there "was substantial evidence from which reasonable jurors could have concluded that [the defendant] was insane at the time he committed the . . . offenses." (Id. at p. 527.) The Court referenced the testimony, from the defendant and other witnesses, that the defendant committed the offenses because he "believed he had a mission from God and that he was the person on the white horse in the Book of Revelations who had been given authority to conquer the earth," as well as a court-appointed psychiatrist's opinion that defendant suffered from multiple psychiatric disorders and committed the shootings because he "believed that he was a messenger from God and lacked the capacity to control his conduct." (Id. at p. 518.) There was no comparable evidence of Derouen's insanity at the time of the offenses in the instant case.