P. v. Tran

Filed 3/22/07 P. v. Tran 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed in part, reversed in part and remanded.

Conrad Petermann, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and David Delgado-Rucci, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Phuc Van Tran challenges the jurys finding he was legally sane when he committed attempted murder and assault with a firearm. He contends the court wrongly refused his proposed special instruction clarifying the definition of insanity. We agree. The court should have instructed the jury that distinguishing right from wrong refers to moral right and wrong, as well as legal right and wrong. We affirm the judgment of conviction, but reverse the sanity finding and remand for a new sanity trial.

FACTS

The Shooting

Defendant was playing a video game one night at a miniature golf course in Stanton. Another man placed a token on the video game to reserve the next game. After finishing his game, defendant left. He returned about 30 minutes later, wearing black clothing and a Darth Vader mask. He walked up to the man who had placed the token on the video game and shot him in the stomach. Defendant fled, hitting another man in the head with his gun as he left. He hid the gun and black clothing in a nearby parking lot.

Police officers later found defendant walking near the parking lot. He was sweating, breathing hard, and seemed nervous. Defendant claimed to be out jogging, although he was wearing pants and leather shoes. The officers patted him down, finding two automatic handgun magazines in his pocket. Defendant was arrested.

The People filed an information charging defendant with one count each of attempted murder (Pen. Code, 187, 664)[1] and assault with a semiautomatic firearm ( 245, subd. (b)). The information alleged defendant personally inflicted great bodily injury, personally used a firearm, and personally discharged a firearm causing great bodily injury. ( 12022.5, subd. (a), 12022.53, subd. (d) & 12022.7.) Defendant pleaded not guilty by reason of insanity.

The court initially found defendant incompetent to stand trial. It eventually found his competence had been restored in 2004. A jury found him guilty on all counts, and found all allegations true.

The Sanity Hearing

For the sanity phase of the trial, the parties stipulated the jury could consider the evidence presented during the guilt phase. That evidence included testimony from defendant, his father, his sister, and a court-appointed psychologist.

Defendant testified he had served in the Navy and worked as a truck driver until he began receiving messages from the Borge [sic] in 2001.[2] They told him, Resistance is futile. He then started getting sick from poison gas attacks. He saw poisonous spores coming into his apartment. Superman told defendant to write a letter to his employer complaining about his work truck being a poison gas chamber. To avoid the poison gas, defendant changed jobs and apartments. He eventually moved in with his parents. Defendant began wearing a surgical mask and, later, a Darth Vader mask.

Defendant further testified the Borg were making signals and poisoning him at the arcade. He saw fumes and started feeling sick. He left the arcade to lie down, but Superman told him to shoot the victim because he was one of these damn people trying to kill him. He stated, Superman told me to shoot him, I shoot him. I dont know what to do anymore.

Defendants sister testified he began acting strangely in 2001. He was very much fixated on the idea that he is being harmed and became unable to function. She saw him burning his clothes in 2001 to eliminate microbial super germ[s]. Later, he would point out dust particles in the air to her and claim they were poison gas coming to kill him.

Defendants father testified defendant seemed sad and very afraid in 2001. He was terrified by dirt. He wrapped himself in plastic to protect him from people trying to kill him. He refused to sleep in the house, choosing instead to sleep in a doghouse in the backyard.

The court-appointed psychologist testified defendant suffered from very strong . . . psychotic delusions and hallucinations and persecutory delusions. She saw defendant grab at the air and put his jumpsuit over his nose to ward off poison fumes. He claimed he was being hunted like an animal. He told her a religious group called the Jamboreees [sic] was trying to kill him with poison gas. He also told her Superman protected him and ordered him to shoot the victim because the victim was causing the poison gas at the arcade. She concluded defendant suffered from a chronic, unspecified psychotic disorder.

Three additional mental health expert witnesses testified during the sanity phase of the trial. A court-appointed forensic psychologist concluded defendant suffered from paranoid schizophrenic disorder. He stated persons with this condition can believe it is morally right to commit a legal wrong. He reported defendant felt morally compelled to shoot the victim, just as a concentration camp prisoner would be justified in shooting a Nazi guard. He opined defendant was so engrossed in his delusional system at the time of the shooting that he was incapable of making a rational decision or withholding an action from the command[s] he heard.

The defenses forensic psychiatrist similarly concluded defendant suffered from chronic paranoid schizophrenia. He further concluded defendant shot the victim due to delusions, auditory hallucinations, and in what defendant considered to be self-defense. He opined defendant could not appreciate either the nature of the shooting or its wrongfulness.

The prosecutions forensic psychiatrist conceded defendant suffered from a schizophrenic, psychotic, or delusional disorder. But he also opined defendant was legally sane when he shot the victim. He believed defendant could distinguish right from wrong, noting defendant had disguised himself, hid evidence, and lied to the police.

The court agreed to pre-instruct the jury on the definition of legal insanity by giving a form jury instruction, CALJIC No. 4.00. As given, that instruction provided in part, A person is legally insane when, by reason of mental disease or mental defect, he was incapable of either, one, knowing the nature and quality of his act; or, two, understanding the nature and quality of his act; or, three, distinguishing right from wrong at the time of the commission of the crime.

Defendant asked the court to give a special jury instruction regarding insanity. The proposed instruction stated, Able to distinguish right from wrong refers to inability to tell moral right from moral wrong, as well as inability to tell legal right from legal wrong. The defense requested this instruction because there has been testimony from doctors regarding the difference between someone understanding the [sic] conceptually a legal right or wrong versus a moral right or wrong or believing that they committed an act not thinking that it was wrong, even though theoretically or conceptually they understand that its legally wrong.

The court refused to give the instruction. It stated, I dont think its necessary up front. It agreed to reconsider if the jury asked the court to clarify the meaning of right and wrong.[3]

The defenses closing argument focused on defendants belief he shot the victim in self-defense and his inability to accurately distinguish between moral right and wrong. Counsel argued, At the time of the crime, [defendant] thought he was defending himself from an elaborate delusional system that was trying to kill him. He thought it was morally right. He thought it was okay. There was testimony about shooting the Nazi prison guard, that somehow that would be morally right. Obviously, its legally wrong, but somehow someone could feel that was morally right to do. That is the question for you to answer.

The prosecutions closing argument focused on defendants knowledge of how to care for himself, and suggested defendant similarly knew right from wrong. The prosecutor argued, If you find that the defendant was insane at the time, this is what youre accepting, ladies and gentlemen: that schizophrenia or mental illness equals insanity. He noted, The defendant is able to care for himself, feed, clothe himself, earn money to pay for a motor home, pay for rent, guns, and play video games. The prosecutor also argued, Our moms and dads and teachers have taught us that, you know what, its wrong to shoot another human being. He continued, But [defendant] can take care of himself, feed himself. You look at the photos of him that night, clean shaven, his hair is not long like it is now. It looked like it had been cut, been trimmed. His responses to the police officers, lies, yet he doesnt know its wrong to shoot a fellow human being. You would be accepting this, because he can do everything else, but he wouldnt know that it was wrong to shoot a fellow human being.

The jury found defendant sane at the time of the shooting. The court sentenced him to life in state prison with the possibility of parole on the attempted murder count. It further imposed a consecutive sentence of 25 years to life for the personal discharge of a firearm causing great bodily injury enhancement. It imposed a total concurrent sentence of 10 years on the assault count and personal use of a firearm enhancement.

DISCUSSION

Defendant contends the court erred by rejecting his proposed jury instruction clarifying the definition of legal insanity.[4] It provided, Able to distinguish right from wrong refers to inability to tell moral right from moral wrong, as well as inability to tell legal right from legal wrong. Defendant is entitled upon request to correct, nonargumentative jury instructions pinpointing the theory of his defense when supported by the evidence. (See People v. Earp (1999) 20 Cal.4th 826, 886 (Earp); see also People v. Saille (1991) 54 Cal.3d 1103, 1119 [pinpoint instructions are required to be given upon request when there is evidence supportive of the theory].) The Attorney General concedes the instruction is nonargumentative and supported by the evidence, leaving only the question of whether it is correct.

We start by defining legal insanity. A defendant is legally insane if he or she is incapable of (1) knowing and understanding the nature and quality of his or her act, or (2) distinguishing right from wrong at the time of the act. (People v. Skinner (1985) 39 Cal.3d 765, 768-769, 775-777 (Skinner) [construing 25, subd. (b)].) In Skinner, the Supreme Court rejected the prosecutions contention that the wrong which the defendant must comprehend is a legal, rather than a moral wrong. (Skinner, at p. 778.) Rather, it concluded, a defendant who is incapable of understanding that his act is morally wrong is not criminally liable merely because he knows the act is unlawful. (Id. at p. 783.) It is clear that in California wrong, . . . refers both to legal wrong and moral wrong. (People v. Stress (1998) 205 Cal.App.3d 1259, 1272 (Stress).) Thus, a defendant is legally insane if the defendant is incapable of distinguishing either legal right from wrong or moral right from wrong.[5] (People v. Torres (2005) 127 Cal.App.4th 1391, 1400-1402 (Torres) [error to instruct jury that defendant must be incapable of distinguishing both legal right from wrong and moral right from wrong].)

Thus, defendants proposed instruction correctly stated the law. Legal insanity refers to the inability to distinguish moral right from wrong, as well as the inability to distinguish legal right from wrong. (See Skinner, supra, 39 Cal.3d at p. 783; see also Torres, supra, 127 Cal.App.4th at pp. 1400-1402; Stress, supra, 205 Cal.App.3d at p. 1272.) The court should have given the instruction upon defendants request.

The Attorney Generals counterarguments are unpersuasive. It cites People v.Kelly (1992) 1 Cal.4th 495 (Kelly), for the proposition that CALJIC No. 4.00 correctly and adequately defines legal insanity. (Kelly, at p. 535.) But the defendant in Kelly did not raise the issue defendant raises here, and instead challenged the form instruction on other sundry grounds. (Id. at pp. 535-536.) [C]ases are not authority for propositions not considered. (People v. Barragan (2004) 32 Cal.4th 236, 243.) Moreover, the defendant in Kelly contended the court had a duty to clarify the form instruction sua sponte. (Kelly, supra, 1 Cal.4th at pp. 535-536.) Kellys approval of the form instruction does not preclude other defendants from obtaining correct clarifying instructions upon request.[6] (See Earp, supra, 20 Cal.4th at p. 886.) Indeed, Kelly repeatedly noted the defendant there could have request[ed] an additional or clarifying instruction, as defendant did here.[7] (Kelly, supra, 1 Cal.4th at p. 536.)

The Attorney General also cites Stress, supra, 205 Cal.App.3d 1259 for the proposition a defendant is free to argue he or she could distinguish legal right from wrong but not moral right from wrong. (Id. at p. 1275.) Placed in context, this comment merely allows a defendant to choose between two distinct means of showing legal insanity. (Ibid. [noting legal and moral wrongfulness are often equivalent, but not always].) It does not imply, as the Attorney General maintains, the court may refuse to give a correct clarifying instruction if it allows defense counsel to argue the clarification in closing argument. A court may not use argument as a substitute for instructions that should have been given. (People v. Miller (1996) 46 Cal.App.4th 412, 426, fn. 6, disapproved on other grounds in People v. Cortez (1998) 18 Cal.4th 1223, 1240.)

The Attorney General did not respond to defendants assertion that the failure to instruct was prejudicial. Defendant maintained he believed the shooting was morally right. Three mental health experts testified defendant believed he shot the victim in self-defense. None of the three concluded defendant was able to understand the shooting was morally wrong. The prosecution essentially argued defendant knew shooting the victim was legally wrong. It likened that knowledge to defendants knowledge of basic life skills, and offered expert opinion based on defendants fear of getting caught.

Thus, it is reasonably probable a properly instructed jury one instructed that defendant is legally insane if he cannot distinguish moral right from wrong would have found defendant legally insane. (See Peoplev. Watson (1956) 46 Cal.2d 818, 836; see also People v. Hoover (1986) 187 Cal.App.3d 1074, 1079 [applying Watson standard to instructional error on insanity defense].) Defendant is entitled to a new sanity trial.

DISPOSITION

The verdicts on the guilt phase are affirmed. The finding of sanity is reversed. The matter is remanded for a new sanity trial.

IKOLA, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

ARONSON, J.

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[1] All further statutory references are to the Penal Code.

[2] The Borg are Star Trek villains known for the catchphrase, Resistance is futile. It was first spoken in the Star Trek: The Next Generation episode The Best of Both Worlds, written by Michael Piller. (Wikipedia, The Free Encyclopedia http://en.wikipedia.org/wiki/Resistance_is_futile (as of March 1, 2007).)

[3] The defense also requested a second special instruction. This instruction stated, A defendant must believe his action is moral based on some source of authority outside himself. In other words, he must believe that if others knew what he knew, and/or had experienced what he had experienced, they would agree that his act was morally right. The prosecution objected the instruction was confusing. The court agreed, and refused the instruction.

[4] Defendant further contends the court erred by rejecting his second proposed jury instruction, which defined moral right in reference to an outside authority and hypothetical people who knew what he knew, and/or had experienced what he had experienced. This instruction is potentially confusing, justifying the courts refusal to issue it. (See People v. Gurule (2002) 28 Cal.4th 557, 659.)

[5] The form jury instructions were modified after defendants sanity trial to make this point explicitly. The court gave the 1996 version of CALJIC No. 4.00, which provided a defendant is legally insane if he or she is incapable of merely [d]istinguishing right from wrong. (CALJIC No. 4.00 (6th ed. 1996).) The 2006 version of CALJIC No. 4.00 now expressly sets forth the inability to [d]istinguish[] what is morally right from what is morally wrong and the inability to [d]istinguish[] what is legally right from what is legally wrong as separate, independent bases for finding a defendant legally insane. (CALJIC No. 4.00 (7th ed. 2006).)

[6] The Attorney General similarly contends Torres, supra, 127 Cal.App.4th 1391, tacitly approved CALJIC No. 4.00 because it criticized a modification to that instruction. We see no such approval. Even if we did, courts must still give correct clarifying instructions upon request.

[7] The Attorney General is similarly off-base when it claims, [n]either Skinner nor Stress suggests that a court must instruct sua sponte that wrong refers to both legal and moral wrong. Defendant does not assert a sua sponte duty.