Filed 6/28/17 P. v. Njuguna CA4/3





NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

JOHN NGANGA NJUGUNA,

Defendant and Appellant.

G052542

(Super. Ct. No. 14NF1079)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Steven D. Bromberg, Judge. Affirmed.
Wayne C. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted John Nganga Njuguna of second degree robbery and resisting a police officer. (Pen. Code, §§ 211/212.5, subd. (c); 148, subd. (a)(1).) The trial court placed Njuguna on five years of formal probation, with terms that included 252 days in jail offset by credit for time served. Njuguna contends the court erred by denying his request to call a jail psychiatrist to testify regarding his bizarre behavior two days after the robbery and to relay her diagnosis that Njuguna suffered from a “psychotic disorder not otherwise specified” at that time. But the doctor explained at a pretrial hearing that as a clinician rather than a forensic psychiatric expert, and with no opportunity to conduct a formal examination, nor to contact Njuguna’s family members or otherwise learn of any relevant medical or social history, she would not be able to give an opinion concerning Njuguna’s mental state at the time of the offense. Njuguna neither sought a different expert, nor availed himself of the court’s offer to admit the evidence of his jail behavior if the prosecutor argued he was malingering at the time of the offense. We discern no abuse of discretion in the court’s ruling excluding testimony regarding Njuguna’s actions days after the offense. Consequently, we affirm the judgment.

I
FACTUAL AND PROCEDURAL BACKGROUND
As Brandon Dang held an advertising sign for his employer and watched a video on his iPad on a street corner in Anaheim, Njuguna approached him with his hand extended and asked, “How are you?” The men shook hands and Dang gave his name when Njuguna inquired, but when Dang asked where Njuguna was headed, Njuguna grabbed Dang’s backpack and rebuffed Dang’s attempt to follow him, repeating in a threatening tone, “Do you want war? Do you want war” and “Do you want to get killed? Do you want to get killed?” Landing slight blows, Njuguna kicked and punched at Dang, who retreated and entered the nearby gas station, telling the attendant, “[T]here is a crazy guy out there.”
Njuguna put on Dang’s backpack, seated himself on Dang’s stool on the street corner, and then crossed the street when the walk sign illuminated. Another witness testified he saw Njuguna try to enter the gas station, pulling on the doors, but then Njuguna gave up and ran away, only to be almost struck by a bus while crossing the street against a red light.
Dang retrieved his cell phone from the street corner, where it had fallen out of his pocket. The police arrived, and Dang followed them to a nearby parking lot, where he saw them arrest Njuguna. Dang retrieved his backpack, which held his sunglasses, a towel, food, a bottle of water, and now also contained Njuguna’s wallet and “a lot of cards,” which were apparently identification cards bearing Njuguna’s name and likeness.
When the officers stopped Njuguna and handcuffed him, he was initially compliant. But within a few moments, he became aggressive, the officers wrestled him to the ground, and one sat on him to restrain him. As Njuguna kicked and thrashed while struggling with the officers, he sang in Swahili and called out for “Mommy” and for “Michael” the archangel. A witness testified Njuguna appeared to be scared of the police, tried to escape before they restrained him, and continued to scream and sing as they escorted him into a patrol car.
At trial, the jury heard an audio recording of Njuguna’s arrest in which he called out “Michael” and “Mommy.” Njuguna testified and explained he had been jogging and asked Dang to press the crosswalk button, but Dang did not initially respond and then moved his stool so Njuguna could press the button himself. Njuguna continued jogging, then stopped outside a nearby restaurant, where he saw a police car pass him, but then turn around and drive toward him. Two officers jumped out of the car and approached him with their pistols drawn. Tackled to the ground by the officers, Njuguna thought “I was going to die.” Seeing an angel that was “like a bright light and somebody there,” he called out the angel’s name, “Michael.” He also saw his mother stretching her hand out to him; he called her name and began singing a Swahili gospel song used at funerals because “I thought I was dead, and I was seeing things, and I was on the ground. And when you see people on the ground they’re probably dead.” He also saw “a lot of butterflies and ladybugs.”
Njuguna denied he had a backpack in his possession when the police arrested him. He presented character witnesses who testified he was an honest and nonviolent person.
Before trial, Njuguna had sought a ruling to allow a jail psychiatrist to testify regarding her observations of Njuguna’s behavior and mental state two days after his arrest, when he was referred to the jail’s mental health module. Counsel did not intend to ask the doctor to opine on Njuguna’s mental condition at the time of the offense, which prompted the trial court to inquire, “So what’s the jury supposed to do with” her observations. The court nevertheless conducted a hearing at the defense’s request.
Dr. Esra Soydinc explained at the hearing that nurses on the jail staff referred Njuguna to the mental health module she supervised because of “bizarre” and “unpredictable” behavior. The staff clothed Njuguna in a “safety gown” for his protection, a precaution taken for inmates in the unit who “can self harm, [be] suicidal, or [are] unpredictable.” Soydinc heard Njuguna making loud noises in his cell, including banging on the glass door, while she conducted other interviews.
When she interviewed Njuguna, he exhibited strange behavior including “talking to unseen people.” He also spoke in a foreign language though he acknowledged he knew English. He had urinated on the table and on the floor. Triage notes from the nurses’ care indicated similar symptoms, including banging his handcuffed hands on a bench. Soydinc ordered “immediate P.O. medication,” administered orally, “to help him control his unpredictable behavior” and to prevent self-injury.
Njuguna denied any history of mental illness, but Soydinc believed he was experiencing a psychotic episode when she interviewed him. She defined psychosis as a “disorder that makes people . . . have false beliefs or experienc[e] hallucination[s],” including delusional thinking She diagnosed Njuguna at the time with “psychotic disorder not otherwise specified,” which she explained is a general, catch-all diagnosis “[i]f you don’t have any past psychiatric history that we can rely on, if the patient is not giving any past psychiatric history, and if we are not sure what we are looking at [i]s a disorder or an end result of a condition.”
Soydinc cautioned that psychosis does not necessarily indicate the person suffers from mental illness. She explained it can arise from a “delirious state” induced by “metabolic abnormalities in the brain . . . or it can be induced by drugs, . . . by symptoms from alcohol, or any kind of heroin products, [or] it can be happening because of [a] bipolar condition, . . . severe depression,” or other causes, including schizophrenia. She explained that a psychotic episode can “last for a long time,” even a month, though “it’s hard to say” and, “[i]f it is schizophrenia, sometimes people remain psychotic for [a] longer time period.”
Soydinc declined to offer any opinion regarding Njuguna’s mental state at the time of his encounter with Dang or the police. She explained, “I’m not [a] forensic psychiatrist, I’m a clinician, and I observe and I treat if [the] patient needs treatment at that moment. And that’s what I did.” She had not read the police report arising from Njuguna’s arrest, and the record does not suggest she spoke with him about the incident. She had not interviewed his family nor any of his neighbors or friends, and her contact with Njuguna during his episode was brief. Her notes reflected she “could talk to him, but it wasn’t too extensive,” complicated also by the fact he spoke another language. She conducted no psychiatric tests such as “an MMPI test,” inkblot or Rorschach test, nor a “S-T-I-R-S test” or others the prosecutor identified.
At the close of the hearing, the trial court concluded, “Right now I cannot find a basis to allow the testimony to come in. There is just no connection. There is no nexus” between “the time of the arrest [and] when the doctor saw him.” The court explained, “I’m not going along the lines [of] whether or not he was faking it or not faking it. I don’t think that’s even an issue for this court to determine at this point. That might be something for the jury to determine.” Consequently, the court resolved to revisit the issue “based on the testimony that comes in.”
Following the testimony of eyewitnesses and the officers regarding Njuguna’s strange behavior at the time he was arrested, the trial court again considered the defense’s request to call Soydinc to testify regarding her observations at the jail. The court, however, reached the same conclusion as before, explaining, “His intent is what it was at the time [of the incident and his arrest] based on what occurred then, not later. So if he was having issues later, even if they were somewhat consistent with before, I’m not seeing a need to bring it in or even a reason to bring it in.”
But the court also explained that if the prosecution argued Njuguna “was faking all of that at the time of the alleged robbery,” “then we may open this discussion up again” for the defense to rebut any claim he was malingering. The court warned the prosecutor, “I’m not telling you you can’t do it, because you can do it if you want to, but that opens the door.” Njuguna did not later object and seek admission of the doctor’s jail observations on grounds the prosecutor overstepped the line the court drew. The jury convicted Njuguna as noted at the outset, and he now appeals.

II
DISCUSSION
Njuguna contends the trial court erred by denying his request to call Dr. Soydinc to describe his conduct in the jail mental health module and to give her opinion he was suffering a psychotic episode at that time. Njuguna argues “her observations and opinion tended to prove [he also] was having a psychotic episode during the [charged] incident . . . and, therefore, did not have the specific intent to commit robbery.” He insists the court was mistaken in finding “just no connection” or “nexus” between the two time frames. Njuguna reasons that “[t]he jury could have inferred that since he was having a psychotic episode in jail, the episode was also happening during the incident. Thus, the doctor’s observations and opinion provided relevant circumstantial evidence of appellant’s mental state at the time of the incident.”
In essence, the trial court determined that Njuguna’s mental state when Soydinc interviewed him two days after the offense was not relevant to the jury’s task of determining whether he harbored the requisite specific intent to rob Dang of his backpack. The elements of robbery, in addition to taking property by means of force or fear from another person’s possession, require “a specific intent to permanently deprive the victim of his property.” (In re Stankewitz (1985) 40 Cal.3d 391, 399, italics omitted; see People v. Letner and Tobin (2010) 50 Cal.4th 99, 166.)
“[A]ll relevant evidence is admissible” (Evid. Code, § 351), unless excluded under the federal or California Constitutions or by statute. (Cal. Const., art. I, § 28; People v. Scheid (1997) 16 Cal.4th 1, 13.) Evidence is relevant if it has a tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. (Evid. Code, § 210.) The trial court is vested with broad discretion to determine the relevance and admissibility of evidence. (People v. Riggs (2008) 44 Cal.4th 248, 289.) Discretionary rulings may not be set aside unless the appellant establishes the ruling was arbitrary, capricious or patently absurd, and caused a miscarriage of justice. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) Njuguna does not meet that high standard here for two reasons.
We do not see how the trial court abused its discretion in finding Soydinc evidence irrelevant when Soydinc herself refused to testify her observations or opinion were relevant to ascertaining Njuguna’s earlier mental state. She explained her role as a clinician rather than a forensic psychiatrist and that in light of her brief contact with Njuguna only for immediate treatment purposes, and without any relevant social or medical history nor the opportunity to conduct any psychiatric tests, she could not reliably offer an opinion regarding his mental state at the time of the incident.
Njuguna defends his decision not to seek a forensic psychiatrist to examine him and potentially opine on his mental state at the relevant time period because he contends “another expert who did not observe [him] within a reasonable time after the incident [would] not have nearly as much probative force as Dr. Soydinc’s testimony.” The flaw in this argument, however, is that by her own admission Soydinc’s testimony had no probative value as to the earlier time frame. She was unwilling to offer an opinion that would only be speculative on that issue.
Njuguna suggests the jury could use Soydinc’s later observations and opinion as circumstantial evidence to draw an inference connecting Njuguna’s mental state during the two time periods. But where an expert in the field will not draw such an inference, the trial court did not abuse its discretion in regarding this proposal skeptically. As the court observed, if the evidence were admitted for the jury’s untutored consideration, “the question now is, well, what in the world are they supposed to do with it?”
There is another problem with Njuguna’s argument. As our high court recently explained, “the scope of the diminished actuality defense” recognized in section 28(a) “is necessarily limited by the presumption of sanity, which operates at a trial on the question of guilt to bar the defendant from claiming he is not guilty because he is legally insane.” (People v. Elmore (2014) 59 Cal.4th 121, 141 (Elmore), original italics.) Thus, controlling case law has long held that “if the proffered evidence tends to show not merely that [the defendant] did or did not, but rather that because of legal insanity he could not, entertain the . . . essential mental state, then that evidence is inadmissible under the not guilty plea and is admissible only on [a] trial on the plea of not guilty by reason of insanity. . . . Evidence which tends to show legal insanity (likewise, sanity) is not admissible at the first stage of the trial because it is not pertinent to any issue then being litigated.” (People v. Wells (1949) 33 Cal.2d 330, 350-351 (Wells).)
Consequently, as Elmore explained, “[T]he provisions of section 28(a) allowing evidence of diminished actuality are ‘qualified’ by the caveat that at a trial on the question of guilt, ‘evidence tending to show lack of mental capacity to commit the crime because of legal insanity is barred . . . .’ [Citation.]” (Elmore, supra, 59 Cal.4th at p. 144; see also id. at pp. 139, 143-144 [noting legislature’s and electorate’s “abolition of the diminished capacity defense”].) Nevertheless, as Elmore also explained, it remains true that “[a]ll relevant evidence of mental states short of insanity is admissible at the guilt phase under section 28(a).” (Elmore, at p. 146, italics added.) But a defense strategy “based solely on delusion is quintessentially a claim of insanity.” (Id. at p. 140.) Accordingly, a claim that a delusional belief mitigates a defendant’s criminal responsibility “is reserved for the sanity phase, where it may result in complete exoneration from criminal liability. [Citations.] It may not be employed to reduce a defendant’s degree of guilt” at trial. (Id. at p. 145, original italics.)
In light of these principles, the trial court did not err in precluding Njuguna from calling Soydinc to testify he was psychotic at the time she interviewed him because Njuguna’s stated strategy to have the jury draw the same conclusion regarding his mental state at the time of the incident ran afoul of the presumption of sanity governing the trial. As Soydinc explained, psychosis is essentially a “disorder that makes people . . . have false beliefs or experienc[e] hallucination[s],” including delusional thinking. Because such a defense is essentially a claim of insanity, it is barred at trial.
Njuguna misplaces reliance on People v. Herrera (2016) 247 Cal.App.4th 467 (Herrera) and other recent cases authorizing defense evidence of mental disease or defect on all charges in the guilt phase. Herrera held the trial court erred by prohibiting expert testimony regarding the defendant’s diagnosis of posttraumatic stress disorder (PTSD). Similarly, in People v. Townsel (2016) 63 Cal.4th 25 (Townsel), the Supreme Court reversed the jury’s true finding on a special circumstance for murdering a witness and a conviction for the offense of attempting to dissuade a witness because the jury was not instructed it could consider evidence of the defendant’s intellectual disability on the specific intent elements of these counts, but rather only on the specific intent necessary for murder.
But Herrera and Townsel are inapposite because neither involved delusions. No evidence suggested the defendants in either case suffered from insane delusions, nor was there any evidence putting the defendant’s sanity in question. Instead, the PTSD and intellectual disabilities the defendants suffered in Herrera and Townsel, respectively, fell well short of insanity. As Elmore anticipated and recognized, in such cases “[o]ur construction of section 28(a) has no effect on evidence of mental disorders that do not amount to legal insanity.” (Elmore, supra, 59 Cal.4th at p. 145.)
Invoking his due process right to present a defense also does not aid Njuguna. (E.g., Crane v. Kentucky (1986) 476 U.S. 683.) As Elmore observed, the federal high court “has confirmed that state law does not violate due process by ‘restricting consideration of defense evidence of mental illness and incapacity to its bearing on a claim of insanity, thus eliminating its significance directly on the issue of the mental element of the crime charged.’ [Citation.]” (Elmore, supra, 59 Cal.4th at p. 144, quoting Clark v. Arizona (2006) 548 U.S. 735, 742.)
 

III
DISCUSSION
The judgment is affirmed.



ARONSON, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



IKOLA, J.