Filed 4/26/17 P. v. Serna CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
LETICIA CERDA SERNA,
Defendant and Appellant.
H042076
(Santa Clara County
Super. Ct. No. B1156218)
Defendant Leticia Cerda Serna suffocated her infant son with a plastic bag. The
prosecution charged her with murder and child assault resulting in death. Serna pleaded
not guilty by reason of insanity and proceeded to a jury trial bifurcated on guilt and
sanity. In the guilt phase, the jury found her guilty of first degree murder and child
assault resulting in death. In the sanity phase, the jury found her sane. The trial court
sentenced Serna to a term of 25 years to life.
Serna raises two claims on appeal. First, she contends the trial court erred by
excluding mental health expert testimony in the guilt phase. Second, she contends the
trial court erred by instructing the jury that the prosecution did not have to prove she
“maturely and meaningfully reflected upon the gravity of her act” to prove it was
deliberate and premeditated.
We conclude the trial court erred by excluding portions of the mental health
expert’s proffered testimony in the guilt phase, but we find the error harmless. We
2
further conclude the trial court properly instructed the jury as to deliberation and
premeditation. We will affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Overview
In 2011, Serna and her partner, German Hipatl Morales, were living in a twobedroom
apartment in Sunnyvale with their eight-month-old son, German Jr. They
shared the apartment with Morales’ two brothers, Librado and Erasmo.1
Serna and
Morales lived in the master bedroom, while Librado and Erasmo shared a second
bedroom.
Around 6 p.m. on September 22, 2011, while Morales was working out of town,
Serna killed German in their bedroom by placing a plastic bag over his head and
suffocating him. She then attempted to kill herself by ingesting a large quantity of pills
and stabbing herself in the abdomen, among other things.
The next day, Librado found German lying dead on the bed. Serna was gone.
Librado had the apartment manager call the police. Soon after the police arrived, they
received a call concerning a woman—later determined to be Serna—threatening to jump
off an overpass over Highway 101. Police proceeded to the scene and pulled Serna off
the overpass before she could jump.
At trial, counsel for Serna proffered expert witness testimony that, at the time of
the killing, she suffered from chronic major depressive disorder with psychotic features
including hallucinations, delusions, and cognitive dysfunction, among other mental
defects. The trial court, however, excluded all such testimony at the guilt phase and
allowed the expert to testify only during the sanity phase.
After the jury found Serna guilty, her expert testified in the sanity phase and
opined that she was legally insane at the time of the killing. The prosecution called two

1
To avoid confusion, we refer to the father as Morales, to the brothers by their first
names, and to baby German by his first name.
3
experts who opined that Serna was legally sane at the time of the killing. The jury found
Serna sane.
B. Guilt Phase Evidence
Serna was a 27-year-old stay-at-home mother at the time of the offense. Morales,
a construction worker, was working at a site in Stinson Beach. To save gas money, he
stayed in Stinson Beach during the work week. He would leave Monday morning and
return Friday afternoon.
1. Circumstances of the Killing
Morales last spoke with Serna by cell phone from Stinson Beach after he got off
work on the afternoon of Thursday, September 22, 2011. The conversation seemed
normal to Morales. Serna put German on the phone to listen to the sound of Morales’
voice, and Morales heard the baby laugh. Morales was planning to return home the
afternoon of the next day.
Librado and Erasmo were gone that Thursday afternoon. Erasmo got home
around 8:00 p.m. that evening, but he did not see Serna or German. Their bedroom door
was closed. Librado got home shortly after 1:00 a.m. on the morning of September 23.
Again, Serna’s bedroom door was closed. After the brothers talked for a while, they went
to bed.
Librado got up around 11:00 a.m. or 12:00 p.m. on September 23. Serna’s
bedroom door was still closed, and Librado did not see or hear her. Librado thought this
was unusual, so he knocked on her door several times and called out to her. When
nobody answered, he opened the door. Serna was gone, and German was lying face
down on the bed. Librado turned German over and saw foam coming out of his mouth.
Librado attempted to revive him, but he realized German was dead. Librado ran
downstairs to the apartment manager’s unit, and the manager called the police. Police
then arrived and found German dead.
4
About 20 minutes after the police arrived at the apartment, they received a call of a
despondent female attempting to commit suicide on an overpass over Highway 101. The
overpass was about a half mile from the apartment. The firefighters who first responded
to the scene found Serna standing just inside a railing on the overpass, facing the freeway
and rocking back and forth. As the firefighters approached her, she jumped over to the
outside of the railing and stood on a small ledge above the highway. The firefighters
managed to grab Serna and pull her off the ledge before she was able to jump. Speaking
in Spanish, she said she wanted to die because she had killed her son.
Serna was taken to the hospital by ambulance. She had nine to 12 puncture
wounds in her abdomen. She also had a white dried powdery substance on her upper
chest area. She said she had taken 200 pills the night before, and that the powdery
substance was residue from vomiting the pills. She told a doctor she had suffocated her
baby the night before.
2. Physical Evidence
Police found German’s body lying face up on the bed in Serna’s bedroom.
German’s body was fully dressed in jeans, a shirt, a sweater, socks, and sneakers. Two
pillows had been placed on either side of his body. On one of the pillows, police found a
plastic bag with dried blood and a clear dried substance inside. There was also a small
soccer ball placed next to the body.
Various items were strewn about on the floor of the bedroom. There were ripped
up pieces of photographs and pieces of blue tape all over the floor. Two of the pieces of
tape appeared to be fashioned into rings, consistent with being wound around someone’s
ankles or wrists. A white dried crusty substance appeared to have been spat on the
carpet, the television, the dresser, and the nightstand. A kitchen knife was found at the
foot of the bed near a chair. In the closet, two pieces of cloth that been tied in a
makeshift noose were hanging from a wooden dowel.
5
Police also found numerous writings by Serna in the bedroom.2
Many of the
writings blamed Morales for creating circumstances in which Serna was driven to kill
German and attempt her own suicide. On the headboard of the bed, directly above
German’s body, Serna had written, “You are the only guilty one, German HipatlMorales.”
On the side of a nightstand, she had written, “You will remember all that we
have lived. You are to be blamed for our death of your little ray of sunshine and your
[female little one].”
3 On a closet door, Serna had written, “Why German, why love, why
did this have to happen. Noooo . . . That’s why I would tell you, give everything, say
what you feel because perhaps there will be no tomorrow. That is what I was referring to
when I would tell you that one should say what one feels because there is no tomorrow
and today is today, the present. Bury me together with my son, the two together, don’t
separate us. I don’t know where that would be but that we are together, it is my wish.
I’ve already made the decision. I am the only one.”
On a chair at the foot of the bed, police found handwritten letters, a notepad with
writing on it, and a cell phone. The items appeared to be neatly arranged. A six-page
letter was enclosed in an envelope addressed to Morales. On the outside of the envelope,
Serna had written, “At Christmas I expected you to give me something and you didn’t
give me anything. I felt real bad because it turned out that way. Remember everything
that we lived. Our songs ‘Between you and I.’ Why my love, why did it have to happen
to us, my life, little darling, my sky, my lollypop, my little good looking one. I heard you
for the last time.” The contents of the letter generally blamed Morales for abandoning
Serna and causing her suffering in various ways. The letter alleged Morales had had an
affair with another woman. The letter stated, among other things, “Why weren’t you
different German, I thought that you were different than the rest of them, 100% different,

2 All writings were in Spanish. The quotations in this opinion are taken from the
English translations.
3
The phrase “female little one” is the literal English translation for “chiquita”.
6
but I was wrong. [. . .] You are the only guilty one for what is happening. [. . .] You
left me alone, abandoned, you did with me what you wanted. You ended everything
beautiful we had at the beginning of our relationship. Separate from the baby, with him it
was a different thing, you behaved well with him. But with me you ended it. You made
me suffer some of the worst. And everything began when I was pregnant. You probably
remember everything we lived, everything you said. You started cheating on me with
that old lady, talking and texting, when I was pregnant, you started since then. You said
you would never do it again and you did it for a second time. That’s why my son
received all the rage you gave me when I was pregnant. And this is what I am referring
to when I would tell you that we should enjoy today, give everything of oneself, because
there is no tomorrow. And that I would take my son and I did it.” The letter repeatedly
accused Morales of abandoning Serna, emotionally abusing her, humiliating her, drinking
alcohol, and having an affair with another woman. Another two-page letter to Morales
made similar accusations. The letter told Morales to “admit your fault, you are the guilty
one for us not being here . . . .”
Serna also mailed a letter to her brother. The letter was dated September 22, 2011.
Serna’s brother received it on September 26. Among other things, the letter stated, “[I]
am writing to you because I didn’t have the nerve to see you face to face or call you on
the phone. My son and I say goodbye. When you receive this letter I will be in another
life, go around the apartment and you will know what I am referring to. [. . .] [I] don’t
know how you will give the notice to my parents (how you will tell my parents). Tell
them that it was best this way but that now I am taking my son, tell them that I love them
a lot, both of them. To be strong. I know I am causing them a big heartache but life is
like that. [. . .] I felt alone, abandoned, just with my son for one side (pushed to the
side). One, 2 failures I didn’t want. But in great part I blame what I did on German
Hipatl Morales from Chilchotla, Chilchotla, Puebla. He is the only guilty one. It should
fall on him, this, what is happening, he pushed me to this.” Similar to the letter she had
7
written to Morales, Serna’s letter to her brother repeatedly blamed Morales for
mistreating her, causing her suffering in various ways, and creating the conditions that
drove Serna to kill German.
C. Sanity Phase Evidence
1. Testimony of German Hipatl-Morales
Morales testified for the defense in the sanity phase. He refuted the accusations
Serna had made against him in her letters. He denied treating her badly or losing his
temper with her. He denied abandoning her or ignoring her feelings. He expressed shock
and confusion over the letters because she had always spoken nicely to him and she had
never complained to him before. He denied cheating on her with another woman. He
stated there was one occasion on which he had received a text from another woman, but
he told Serna he wanted nothing to do with the woman, and they never discussed it again.
2. Expert Testimony
Dr. Pablo Stewart testified for Serna as an expert in psychiatry and forensic
psychiatry. Dr. Stewart personally examined Serna on three separate occasions in
November and December 2011 for a total of seven hours. He opined that Serna was
suffering from major depressive disorder with psychotic features at the time of the
offense. He testified that she was aware of what she was doing at the time, such that she
knew and understood she was killing her baby. However, he opined that she did not
understand that her actions were legally or morally wrong. He concluded that Serna was
legally insane at the time of the killing.
Dr. Jeffrey Kline testified for the prosecution as an expert in forensic psychology.
Dr. Kline was appointed by the court. He personally met with Serna on two occasions in
2013 for a total of about 5.3 hours. Dr. Kline diagnosed her as suffering from recurrent
major depressive disorder, general anxiety disorder, and personality disorder with
avoidance and dependent features. He opined that Serna understood the nature and
quality of her actions, such that she knew the consequences of her conduct—i.e., that
8
suffocating her child would lead to his death. He further opined that Serna understood
her conduct was legally wrong. As to her understanding of the morality of her actions, he
opined that she had a “personal, idiosyncratic, moral justification” for her actions, but
that she was capable of understanding that society in general would disapprove.
Dr. Kline concluded that Serna did not meet the criteria for the legal definition of
insanity.
Dr. Jonathan French testified for the prosecution as an expert in forensic
psychology. Dr. French met with Serna for about 11 hours over a two-day period in
April 2014. He opined that Serna suffered from recurrent, moderate-to-severe depression
with generalized anxiety disorder and somatic symptoms. He also diagnosed her with
personality disorder, not otherwise specified, with dependent and avoidant features. He
opined that she was capable of understanding that it was morally and legally wrong to kill
her child, and that she knew the difference at the time. Dr. French concluded Serna did
not meet the criteria for legal insanity.
3. Police Interviews of Serna
Police interviewed Serna on three occasions in the days following the killing.
Detective Fabian Monge, who interviewed Serna, testified for the prosecution that Serna
made the following statements in the interviews. She stated that her marriage to Morales
was initially happy, but after she got pregnant, he became distant and declined to engage
her in conversation. Serna suspected Morales of cheating on her because she found text
messages from another woman on his cell phone and he received phone calls that she was
not allowed to answer. She held Morales responsible for the fact that she had killed her
baby.
Serna said she had been thinking about killing herself and the baby for more than a
month beforehand. On the day of the offense, she decided on using a plastic bag to
suffocate him. She stated that she dressed the baby in his best clothes to ensure he would
be well-dressed as he went to the next life. She killed him at about 6 p.m. that evening.
9
The police asked Serna to reenact the killing using a doll and a plastic bag. She agreed to
do so. The police videotaped the reenactment. She demonstrated how she held the baby
in her arms, put the bag around his neck, and held the bag in place. As the baby began to
gasp and kick, she turned him around and held him away from her. After about two
minutes, he stopped moving, whereupon she placed the baby on the bed and covered him
with a blanket. She then laid down next to the baby and placed a bag over her own head
in an attempt to suffocate herself, but it did not work.
When asked about one of the letters to Morales found at the foot of the bed, Serna
stated that she had begun writing the letter that afternoon, prior to the killing. She wrote
the messages on the headboard and the closet door after the killing.
When asked whether she knew it was wrong to kill her baby, Serna stated that she
understood it was wrong and hurtful. She also said she understood that it was against the
law. She initially denied that she killed the baby to get revenge on Morales. She
explained that she wanted to end her life but she did not want to leave the baby behind.
She also admitted, however, that she killed the baby “in part” to make Morales feel bad.
D. Procedural Background
In June 2012, the prosecution charged Serna by information with: Count One—
Murder (Pen. Code, § 187, subd. (a))
4
; and Count Two—Assault on a child with force
likely to produce great bodily injury, resulting in death (§ 273ab, subd. (a)). Serna
pleaded not guilty by reason of insanity.
The guilt phase of the trial began on November 4, 2014. On November 18, after
about five hours of deliberation, the jury found Serna guilty on both counts. The sanity
phase began the next day. On December 16, after about six and a half hours of
deliberation, the jury found Serna legally sane.

4
Subsequent undesignated statutory references are to the Penal Code.
10
The trial court imposed a term of 25 years to life on Count One. On Count Two,
the court imposed a term of 25 years to life, stayed under section 654.
II. DISCUSSION
A. Exclusion of Mental Health Evidence in the Guilt Phase
Serna contends the trial court erred by excluding evidence of her mental illness in
the guilt phase. The Attorney General contends the trial court properly excluded the
evidence. We conclude that some portions of the proffered mental health evidence
should have been admitted in the guilt phase, but we find the error harmless.
1. Legal Principles
Sections 25, 28, and 29 circumscribe the introduction of mental health evidence in
the guilt phase of a criminal trial. Section 25 prohibits the defense of diminished capacity
and provides that evidence of “mental illness, disease, or defect shall not be admissible to
show or negate capacity to form the particular purpose, intent, motive, malice
aforethought, knowledge, or other mental state required for the commission of the crime
charged.” (§ 25, subd. (a).) Similarly, section 28 provides in part: “Evidence of mental
disease, mental defect, or mental disorder shall not be admitted to show or negate the
capacity to form any mental state, including, but not limited to, purpose, intent,
knowledge, premeditation, deliberation, or malice aforethought, with which the accused
committed the act.” (§ 28, subd. (a).)
Mental health evidence is not completely inadmissible, however. “Evidence of
mental disease, mental defect, or mental disorder is admissible solely on the issue of
whether or not the accused actually formed a required specific intent, premeditated,
deliberated, or harbored malice aforethought, when a specific intent crime is charged.”
(§ 28, subd. (a), italics added.) This theory of relevance has been called “diminished
actuality.” “[T]he jury may generally consider evidence of . . . mental condition in
deciding whether defendant actually had the required mental states for the crime.”
(People v. Steele (2002) 27 Cal.4th 1230, 1253.)
11
Under Section 29, “any expert testifying about a defendant’s mental illness,
mental disorder, or mental defect shall not testify as to whether the defendant had or did
not have the required mental states, which include, but are not limited to, purpose, intent,
knowledge, or malice aforethought, for the crimes charged. The question as to whether
the defendant had or did not have the required mental states shall be decided by the trier
of fact.” (§ 29.) “In other words, the defendant can call an expert to testify that he had a
mental disorder or condition (such as or PTSD, or dissociation), as long as that testimony
tends to show that the defendant did or did not in actuality (as opposed to capacity) have
the mental state (malice aforethought, premeditation, deliberation) required for
conviction of a specific intent crime (as opposed to a general intent crime) with which he
is charged, except that the expert cannot offer the opinion that the defendant actually did,
or did not, harbor the specific intent at issue. Put differently, sections 28 and 29 do not
prevent the defendant from presenting expert testimony about any psychiatric or
psychological diagnosis or mental condition he may have, or how that diagnosis or
condition affected him at the time of the offense, as long as the expert does not cross the
line and state an opinion that the defendant did or did not have the intent, or malice
aforethought, or any other legal mental state required for conviction of the specific intent
crime with which he is charged.” (People v. Cortes (2011) 192 Cal.App.4th 873, 908
(Cortes).) We apply the abuse of discretion standard of review to the trial court’s
decision to admit or exclude evidence under these sections. (Ibid.)
2. Procedural Background
The parties litigated at length the admissibility of mental health evidence in the
guilt phase. The prosecution, relying on People v. Elmore (2014) 59 Cal.4th 121
(Elmore), moved in limine to exclude evidence of delusions and argued that Serna should
be precluded from arguing heat of passion or imperfect self-defense. Serna asserted a
diminished actuality defense. She argued that evidence relevant to her mental state was
relevant and admissible because the prosecution bore the burden of proving malice,
12
deliberation, and premeditation. Serna, relying on section 29, argued that expert
testimony on mental health was relevant to the question of whether she harbored the
requisite mens rea, provided the expert did not testify to the ultimate fact that she did not
harbor such a state of mind.
a. Proffered Mental Health Evidence
Serna proffered testimony by Dr. Stewart regarding the existence and duration of
her mental disorders, the symptoms of the disorders, and the sources and evidence he
relied upon. Specifically, Serna proposed Dr. Stewart would testify that, in the days
leading up to the killing, she was in a “psychotic episode caused by a major depressive
disorder”; that she was suffering from “a ‘complex and paranoid delusion’ regarding the
afterlife, [and] the “suffering” that this life caused”; and that she held a “concrete belief
system that was fueled by her psychosis,” including the belief that “in death she and the
infant would be transported to the afterlife where they would be together.” Dr. Stewart
would also testify that evidence of Serna’s conduct on the day of the killing was
“consistent with persons suffering from major depressive disorder with psychotic features
and who have a delusional thought process.”
Dr. Stewart also wrote a 33-page report describing his observations of Serna and
setting forth his analyses and diagnoses. Although the record does not show that Serna’s
trial counsel included the report in her written filings, the trial court’s written order
quotes from the report at length. It thus appears the trial court had the report before it
when it ruled on the admissibility of Dr. Stewart’s testimony. We granted appellate
counsel’s motion to augment the record with the report. The Attorney General lodged no
objection. Accordingly, we will treat the contents of the report as evidence proffered by
Serna’s trial counsel.
As set forth above, Dr. Stewart interviewed Serna for about seven hours over three
interviews in November and December 2011. Dr. Stewart also reviewed several
interviews with family members conducted by defense investigators, among other
13
documents and evidence. His report detailed symptoms of mental illness dating back to
Serna’s early childhood in Mexico, including signs of major depression. Serna had a
prior marriage, before her partnership with Morales, which resulted in two children born
in 2004 and 2007. She left her husband and children in 2010, and the couple later
divorced. Serna blamed her ex-husband for the failure of the marriage, citing his abuse,
anger, drinking, and controlling behavior, among other things. Serna also suffered from
episodes of major depression that worsened progressively after the birth of her children.
Dr. Stewart’s report detailed Serna’s state of mind leading up to the time of the
offense as follows. Serna claimed Morales would not permit her to see her children from
her prior marriage. In the summer of 2011, Morales began working in Marin and leaving
Serna at home with the baby and without any money. When he returned home on the
weekend, he drank alcohol, watched television, and ignored Serna or emotionally abused
her. As a result of all this, Serna became increasingly lonely and depressed, and she
began experiencing psychotic symptoms. She started experiencing hallucinations and
hearing the murmuring of voices when nobody else was around. She saw “shadows” of
people walking by out of the corner of her eye, but when she turned to look, nobody was
there. Serna also developed “cognitive impairments,” “cognitive dysfunction,” and
“cognitive distortions” as her depression worsened. Her thinking became disorganized,
her memory deteriorated, and she began to “lose her ability to manipulate information
and think in a logical and rational fashion.”
Serna also started to have suicidal thoughts. Two weeks before the offense, she
began giving away her personal possessions. She began to believe that “suicide was the
only answer to her torment.” Serna called her sister-in-law and told the sister she was
leaving her two prior children in the sister’s care. She believed that her death would
result in baby German being left all alone or sent to live with foster parents. She was
certain the baby’s suffering would dramatically worsen after her death. Serna denied that
her actions were motivated by vengeance for Morales. Dr. Stewart observed,
14
“Regardless of the illogical scenarios Leticia thought of, she believed her son would
suffer needlessly, and she did not want him to suffer anymore. She firmly believed that
bringing her baby with her was the right thing to do, as she believed it was the only
solution to prevent his ongoing suffering.” Dr. Stewart noted that mental health
researchers have developed the concept of “delusional altruistic homicide” to describe the
psychological phenomenon wherein a mother suffering postpartum depression kills her
infant with the intent to spare it suffering.
Dr. Stewart opined that the letters Serna left at the scene of the offense also
demonstrated her cognitive dysfunction. The letters contained misspellings, punctuation
errors, and grammar shortcuts atypical of her usual level of writing skill. They put forth
contradictory assertions and demonstrated non-linear thought processes. The messy and
disheveled surroundings in the bedroom, in contrast to the neat and orderly conditions in
which she normally kept her living spaces, provided further evidence of her disorganized
thought processes at the time of the offense.
Serna’s interviews with the police also showed evidence of cognitive impairments.
Serna suffered from confusion at a number of points in the interviews and she gave
nonsensical responses to simple questions. Her disorganized thinking did not allow her
to fully comprehend and answer questions in a logical, rational manner.
Dr. Stewart concluded that, in the period leading up to the killing, Serna suffered
from “a chronic case of Major Depressive Disorder, recurrent, severe with psychotic
features, which resulted in a severely depressed mood, auditory hallucinations (false
perceptions of sound), delusions (fixed false beliefs that are resistant to reason or
confrontation with actual facts), cognitive distortions (exaggerated and irrational
thoughts), and cognitive dysfunction, including impaired executive functioning (a group
of essential mental tasks, including planning, strategizing, organizing, setting goals, and
paying attention to the important details, that will help to achieve those goals), impaired
short and long-term memory, and disorganized thinking (illogical, nonsensical thought
15
patterns).” Dr. Stewart also opined that Serna suffered from posttraumatic stress
disorder.
b. The Trial Court’s Rulings
The trial court filed a lengthy written order excluding Dr. Stewart’s expert
testimony in the guilt phase. After examining the case law, the court ruled that Serna’s
defense was based on evidence of delusions, which the court concluded was inadmissible
under Elmore, supra, 59 Cal.4th 121. The court also concluded that Dr. Stewart’s
testimony was prohibited under section 25 because it concerned Serna’s diminished
mental capacity, and not diminished actuality. The court ruled that Dr. Stewart’s
testimony was admissible only in the sanity phase because it pertained to the issue of
insanity and not guilt.
Serna moved for reconsideration, orally and in writing, citing People v. Padilla
(2002) 103 Cal.App.4th 675 (Padilla) and CALCRIM No. 627.5
She argued that
evidence of her mental illness was relevant to show that her thought processes were
encumbered or defective, tending to negate deliberation and premeditation. The trial
court denied the motion in a second written order. The court characterized Serna’s
argument as a diminished capacity defense, which is prohibited under section 25. The
court also concluded there was no nexus between Serna’s symptoms and her commission
of the offense, distinguishing her argument from the holdings set forth in Padilla, supra.
Serna filed a written response objecting to the court’s ruling as “overly restrictive
and narrow” with respect to the relevance of her mental health symptoms. Serna argued
that her hallucinations, delusions, and suicide attempts were symptoms of the same

5 At the time of trial, CALCRIM No. 627 stated, in part: “A hallucination is a
perception not based on objective reality. In other words, a person has a hallucination
when that person believes that he or she is seeing or hearing [or otherwise perceiving]
something that is not actually present or happening. You may consider evidence of
hallucinations, if any, in deciding whether the defendant acted with deliberation and
premeditation.”
16
mental disorders that caused her disorganized thinking and negated her deliberation and
premeditation. Serna also argued that the prosecution’s theory of the case—that Serna
killed German out of vengeance or a desire to hurt Morales—made defense evidence of
her psychological state relevant. The prosecution filed a written response adopting the
trial court’s interpretation of Padilla, supra. The court acknowledged Serna’s response
but made no changes to its rulings.
Serna moved for reconsideration again during the prosecution’s case in chief.
After the prosecution sought to introduce evidence regarding Serna’s motive and state of
mind at the time of the killing, she argued that the prosecution had “opened to door” to
evidence rebutting her psychological state. The trial court, finding that the prosecution
had not “gone into anything to do with mental health,” denied the motion.
3. Portions of Dr. Stewart’s Proffered Testimony Were Admissible
Serna contends Dr. Stewart should have been allowed to testify concerning her
mental health because his proffered testimony was relevant to negate malice,
deliberation, and premeditation. The Attorney General contends the evidence was
properly excluded because evidence of delusions is inadmissible in the guilt phase under
Elmore, supra. Serna argues that Elmore did not make Dr. Stewart’s testimony
inadmissible because Elmore concerns “pure delusions,” and Serna’s symptoms were not
pure delusions. Serna also contends Elmore only concerns imperfect self-defense, which
is not at issue here.
In Elmore, supra, 59 Cal.4th 121, a mentally ill defendant was convicted of first
degree murder after the trial court refused to instruct the jury on imperfect self-defense.
The California Supreme Court held that the trial court properly refused to instruct the jury
on imperfect self-defense because the defendant’s belief in the need to defend himself
was purely delusional: “[D]efendants who contend they killed in self-defense because of
a purely delusional perception of threat must make that claim at a sanity trial.
Unreasonable self-defense and legal insanity are distinct theories, and must be
17
adjudicated separately.” (Id. at p. 146.) The court identified imperfect self-defense as a
form of “mistake of fact,” which must be “ ‘predicated upon a negligent perception of
facts, not, as in the case of a delusion, a perception of facts not grounded in reality. A
person acting under a delusion is not negligently interpreting actual facts; instead, he or
she is out of touch with reality.’ ” (Id. at p. 136, quoting People v. Mejia-Lenares (2006)
135 Cal.App.4th 1437, 1453-1454, fn. omitted.)
The court in Elmore did not address the relevance of delusions to the existence of
deliberation or premeditation. Nor did the court hold that evidence of delusions is
categorically inadmissible to negate malice. Elmore held that malice cannot be negated
through imperfect self-defense or heat of passion when the requisite state of mind is
based purely on delusions. But this case does not involve imperfect self-defense or heat
of passion. As such, Elmore has limited application to this case.
The Attorney General, echoing the trial court, takes the position that delusions
cannot negate malice or premeditation, and that evidence of delusions can only be
admitted in the sanity phase. But we do not read Elmore so expansively. Analyzing
section 28, the court in Elmore observed that “[a] claim of unreasonable self-defense
based solely on delusion is quintessentially a claim of insanity under the M’Naghten
standard of inability to distinguish right from wrong.” (Elmore, supra, 59 Cal.4th at p.
140.) Because evidence of insanity may not be admitted in the guilt phase to prove
insanity, the court reasoned that evidence of a delusional belief in the need for selfdefense
must be reserved for the sanity phase. But this does not mean that all evidence of
delusions must be reserved for the sanity phase. Some delusions may fall short of
insanity. The court expressly declined to exclude such evidence: “Our construction of
section 28(a) has no effect on evidence of mental disorders that do not amount to legal
insanity. As noted in [People v. Mills (2012) 55 Cal.4th 663], ‘a defendant may suffer
from a diagnosable mental illness without being legally insane under the M’Naghten
standard.’ ” (Id. at pp. 145-146.)
18
Some portions of Dr. Stewart’s proffered testimony were properly excluded in the
guilt phase because they pertained solely to the issue of sanity. For example, Dr. Stewart
wrote that Serna suffered from the delusion that it was necessary to kill her baby to spare
it from some imagined state of suffering. As a result of this delusion, Serna believed in
her mind that the killing was morally justified. On this basis, Dr. Stewart opined that she
was incapable of understanding that her conduct was morally wrong. This evidence goes
directly to one prong of the M’Naghten standard for insanity. (See section 25, subd. (b).)
The trial court did not err by excluding this portion of his proffered testimony.
However, not all of Dr. Stewart’s proffered testimony concerned delusions that
amounted to insanity. Dr. Stewart also opined that Serna suffered from cognitive
dysfunction, cognitive distortions, disorganized thinking, impaired memory, and impaired
executive functioning. Dr. Stewart described “executive functioning” as “a group of
essential mental tasks, including planning, strategizing, organizing, setting goals, and
paying attention to the important details, that will help to achieve those goals.” Mental
defects in these areas are relevant to the existence of deliberation and premeditation.
Deliberation and premeditation typically involve planning activity, motive, and killing
according to a “preconceived design.” (People v. Anderson (1968) 70 Cal.2d 15, 26-27.)
Evidence of such mental activity “support[s] an inference that the killing was the result of
‘a pre-existing reflection’ and ‘careful thought and weighing of considerations’ rather
than ‘mere unconsidered or rash impulse hastily executed’ . . . .” (Id. at p. 27.) Evidence
tending to negate the presence of such mental activity would therefore tend to negate the
existence of deliberation and premeditation. Section 28 expressly makes evidence of
such mental defects admissible “on the issue of whether or not the accused actually
formed a required specific intent, premeditated, [or] deliberated.” (§ 28, subd. (a).)
The trial court characterized much of Dr. Stewart’s opinion as evidence of
diminished capacity, which is inadmissible under section 25. But Dr. Stewart did not
claim Serna was incapable of engaging in planning or considering the consequences of
19
her actions. He opined that her thought processes were dysfunctional or distorted, not
that they rendered her mentally incapacitated or unable to premeditate or deliberate.
Based on the proffered testimony regarding cognitive defects, Serna could have argued
that she did not have the requisite state of mind, provided that she did not claim she was
unable to form the requisite state of mind. This may be a distinction in degree only, but it
is one that the law recognizes. “Sections 28 and 29 permit introduction of evidence of
mental illness when relevant to whether a defendant actually formed a mental state that is
an element of a charged offense, but do not permit an expert to offer an opinion on
whether a defendant had the mental capacity to form a specific mental state or whether
the defendant actually harbored such a mental state. An expert’s opinion that a form of
mental illness can lead to impulsive behavior is relevant to the existence vel non of the
mental states of premeditation and deliberation regardless of whether the expert believed
appellant actually harbored those mental states at the time of the killing.” (People v.
Coddington (2000) 23 Cal.4th 529, 582-583, overruled on other grounds by Price v.
Superior Court (2001) 25 Cal.4th 1046, italics added, fn. omitted.) Under this rule,
evidence that Serna suffered from cognitive defects was relevant to whether she
possessed the requisite state of mind. (See Cortes, supra, 192 Cal.App.4th at p. 908;
Padilla, supra, 103 Cal.App.4th at p. 679.)
For the reasons above, we conclude the trial court erred by excluding this portion
of Dr. Stewart’s proffered testimony. Reversal, however, is required only if Serna was
prejudiced.
4. Harmless Error Analysis
The harmless error standard for the erroneous exclusion of expert mental health
testimony is fixed by state law. (Cortes, supra, 192 Cal.App.4th at p. 912.) Under this
standard, Serna was prejudiced if it is reasonably probable she would have achieved a
more favorable result had the error not occurred. (People v. Watson (1956) 46 Cal.2d
818.) Serna contends she was denied the right to present a defense in violation of her
20
federal due process rights, requiring harmless error analysis under the standard of
Chapman v. California (1967) 386 U.S. 18. (See Crane v. Kentucky (1986) 476 U.S.
683, 690 [exclusion of testimony regarding circumstances of confession violated
defendant’s right to present defense].) We are not persuaded by this argument, but we
need not resolve this dispute because we conclude the error was harmless beyond a
reasonable doubt.
Serna does not dispute that she killed her child. At trial, the sole point of
contention concerned her state of mind at the time of the offense. But the evidence of
malice, deliberation, and premeditation was strong. First, there was no doubt that Serna
acted with express malice. There was no evidence of heat of passion, imperfect selfdefense,
or any mitigating circumstances that might have reduced the killing to
something less than murder. Nor was there any evidence of implied malice. The
evidence conclusively established express malice—the fact that Serna intentionally killed
her baby. Although defense counsel’s initial filing on the admissibility of mental health
evidence argued that the evidence could negate malice, she subsequently conceded that
this evidence pertained only to deliberation and premeditation. She stated that her
strategy in the guilt phase was to obtain a verdict of second degree murder.
But the prosecution presented strong evidence of deliberation and premeditation.
“ ‘Deliberation’ refers to careful weighing of considerations in forming a course of
action; ‘premeditation’ means thought over in advance.” (People v. Koontz (2002)
27 Cal.4th 1041, 1080.) The evidence showed Serna thought about killing her baby in
advance and considered the consequences of doing so. She wrote multiple letters prior to
the killing in which she set forth her reasons for why she intended to kill her baby,
blaming Morales for creating the underlying circumstances. In her letter to her brother,
Serna acknowledged the pain the killing would cause her parents. But she also expressed
her belief that she and the baby would be better off dead. She also stated an obvious
desire—whether characterized as vengeance or something else—to demonstrate to
21
Morales his supposed blameworthiness for the killing. She dressed the baby in nice
clothes before killing him. She selected the method of suffocation by plastic bag, in a
decision apparently designed to minimize the degree of physical suffering. This conduct
is overwhelming evidence of the kind of planning, motive, and consideration of
consequences that exemplify deliberation and premeditation.
Defense counsel argued that Serna’s perception of Morales’ mistreatment had no
basis in reality. In oral arguments over the admissibility of Dr. Stewart’s testimony,
defense counsel acknowledged the abundant evidence of planning activity, but she
characterized it as the product of mental illness. She argued to the court that “[t]he
planning is defective. The planning is poisoned . . . .” The record supports such a
conclusion. There was abundant evidence that Serna’s thinking was based on deeply
mistaken premises, if not outright delusions. At the very least, the evidence showed her
thought processes were extremely irrational and dysfunctional.
However, planning, motive, and deliberation may constitute premeditation
sufficient for first degree murder even when they are based on irrational or delusional
thought processes. Prior to 1981, California courts would sometimes reduce first degree
murder to second degree murder where a defendant’s deliberation and premeditation
process was infected by mental illness. (See, e.g., People v. Bassett (1968) 69 Cal.2d
122, 148; People v. Nicolaus (1967) 65 Cal.2d 866, 878.) But in 1981, the Legislature
amended section 189 to add the following: “To prove the killing was ‘deliberate and
premeditated,’ it shall not be necessary to prove the defendant maturely and meaningfully
reflected upon the gravity of his or her act.” (Stats. 1981, ch. 404, § 7.) As a
consequence of this amendment, evidence of deliberation and premeditation based on
mentally deficient thought processes can support a conviction for first degree murder.
“The effect . . . of the removal of mature and meaningful reflection as part of the
elements of deliberation and premeditation is to narrow those elements. We conclude
that with the removal of the vague requirement for mature and meaningful reflection,
22
deliberation and premeditation are proved when the trier of facts concludes not merely
that the defendant harbored an intent to kill but when that intent was the result of
forethought and reflection, and when careful thought and a weighing of considerations
are demonstrated. A finding of deliberation and premeditation is not negated by evidence
a defendant’s mental condition was abnormal or his perception of reality delusional
unless those conditions resulted in the failure to plan or weigh considerations for and
against the proposed course of action.” (People v. Stress (1988) 205 Cal.App.3d 1259,
1270.)
The evidence shows beyond a reasonable doubt that Serna intentionally killed her
baby; that she engaged in planning activity before doing so; and that she weighed the
consequences of her conduct, notwithstanding the evidence that her thinking was
irrational, delusional, or mentally defective. It is therefore clear beyond a reasonable
doubt that a rational jury would have found Serna guilty absent the error. (See People v.
Gonzalez (2012) 54 Cal.4th 643, 663 [summarizing Chapman harmless error standard].)
Accordingly, Serna was not prejudiced by the erroneous exclusion of mental health
testimony. We conclude this claim is without merit.
B. Jury Instruction on Deliberation and Premeditation
Over defense counsel’s objection, the trial court instructed the jury in the guilt
phase as follows: “To prove the killing was deliberate and premeditated, it shall not be
necessary to prove the defendant maturely and meaningfully reflected upon the gravity of
her act.” Serna contends this instruction violated her right to present a defense and her
right to a fair trial. She argues that the instruction cannot be reconciled with CALCRIM
No. 521, which provides: “A decision to kill made rashly, impulsively, or without careful
consideration is not deliberate and premeditated.” The Attorney General contends the
instruction was proper.
We independently review the correctness of jury instructions. (People v. Waidla
(2000) 22 Cal.4th 690, 733.) If the instruction is ambiguous, we inquire “whether there is
23
a reasonable likelihood that the jury has applied the challenged instruction in a way” that
violates the Constitution. (Boyde v. California (1990) 494 U.S. 370, 380.)
Serna claims the instructions are ambiguous because “careful consideration”
necessarily requires “meaningful reflection.” We are not persuaded. It is possible to
reflect on a matter in a way that is “careful” yet not “meaningful.” Reviewing the
instructions as a whole, and assuming jurors are capable of understanding and correlating
instructions, there is no reasonable likelihood the jury misapplied the instruction.
Furthermore, the language is taken nearly verbatim from the statute defining first degree
murder: “To prove the killing was ‘deliberate and premeditated,’ it shall not be necessary
to prove the defendant maturely and meaningfully reflected upon the gravity of his or her
act.” (§ 189.) “ ‘[T]he language of a statute defining a crime or defense is generally an
appropriate and desirable basis for an instruction, and is ordinarily sufficient when the
defendant fails to request amplification. If the jury would have no difficulty in
understanding the statute without guidance, the court need do no more than instruct in
statutory language.’ ” (People v. Estrada (1995) 11 Cal.4th 568, 574, quoting People v.
Poggi (1988) 45 Cal.3d 306, 327.)
The California Supreme Court rejected a similar challenge to a jury instruction
based on this same language in People v. Smithey (1999) 20 Cal.4th 936. The high court
observed, “The words in the phrase ‘maturely and meaningfully reflected’ are commonly
understood terms that convey the same meaning in both section 189 and our decision in
[People v. Wolff (1964) 61 Cal.2d 795, 821].” (Id. at p. 981.) The court rejected the
defendant’s argument that the jury was likely to be confused regarding the required
mental state. The court held, “Considering the instruction as a whole, we find no
reasonable likelihood that the jury misunderstood the phrase ‘maturely and meaningfully
reflected’ in the manner suggested by defendant. The instruction made clear that
reflection must have preceded commission of the crime and could not have been
unconsidered or rash, but rather must have resulted from careful thought and a weighing
24
for and against the chosen course of action.” (Ibid.) Serna makes no argument
distinguishing Smithey from this case.
For the reasons above, we conclude this claim is without merit.
III. DISPOSITION
The judgment is affirmed.
_________________________
RUSHING, P.J.
WE CONCUR:
_________________________
PREMO, J.
_________________________
ELIA, J.
People v. Serna
H042076