Filed 6/24/22 P. v. Spire CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Michael E. Dellostritto, Judge.

Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos M. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

A jury convicted appellant Shawn Israel Spire of multiple felonies, including attempted murder, torture, and two counts of rape. The crimes involved appellant’s ex-girlfriend. Following the guilty verdicts, a sanity phase occurred and the jury found it not true that appellant was legally insane when he committed these crimes. Appellant received a determinate prison sentence of 13 years, along with a consecutive aggregate indeterminate term of 50 years to life.

Appellant argues that insufficient evidence supports his conviction for attempted murder. He also contends that a reasonable jury could not have found him sane when he committed these crimes. Finally, he claims instructional errors occurred in both the guilt and sanity phases of trial, and he alleges cumulative error. We reject these arguments. However, we agree with the parties that appellant’s conviction in count 4 must be modified to misdemeanor assault.[1] We also direct the correction of clerical errors appearing in the determinate abstract of judgment. We remand for resentencing but otherwise affirm the judgment as modified.

BACKGROUND

We summarize the material trial evidence supporting appellant’s convictions. We provide additional facts later in this opinion when relevant to the issues raised.

I. Appellant Severely Beat and Raped his Ex-Girlfriend.

It was undisputed at trial that appellant severely beat and raped his ex-girlfriend, Sylvia, on the evening of December 9, 2016. He raped her a second time early the next morning.

Leading up to this attack, appellant and Sylvia had been residing together, but they were no longer in a romantic relationship. Appellant hoped they could reconcile. Sylvia, however, had been communicating with at least one other man. At trial, appellant admitted that he had felt emotionally hurt, and he was depressed when she broke up with him. Around Thanksgiving in 2016, just weeks before he attacked her, appellant left an engagement ring for Sylvia, but she ignored it.

A big issue surrounding their relationship was appellant’s drinking. It was undisputed at trial that appellant is a chronic alcoholic. He typically drank about a fifth of vodka daily, which he had done for years. He admitted at trial that, on the day he attacked Sylvia, he started drinking vodka in the early afternoon. He claimed he had “maybe just two drinks.” He admitted having another drink in the garage later that night just before he attacked her after he and Sylvia had returned home.[2]

On the night in question, appellant and Sylvia began arguing sometime after 9:30 p.m. Without warning, he punched her head with his fists. She tried to fight back, but he picked up a large metal candlestick which he used to strike her head and face about eight to 10 times. Sylvia fell to the living room floor. At trial, Sylvia agreed that this metal candlestick was heavy. It broke apart while appellant repeatedly struck her with it.

After she fell down, appellant hit her left leg several times with the candlestick. He said he wanted to break her kneecap. He put his hands on her neck and applied pressure. She had trouble breathing. She started to cry a little and she asked why he was doing that. He “kind of let up” and she was able to breathe. Around that time, appellant stated that he wanted to kill her, and she did not deserve to live. Sylvia told the jury that she thought she was going to die.

While Sylvia was lying on the ground, appellant broke at least one of her ribs by kicking or stomping on her. She was in pain, extremely dizzy, and she could not get up.

Appellant asked Sylvia where she had placed her handgun. He told her that she was not bleeding out fast enough. He said he wanted to shoot her or she could shoot him. He said that he did not intend to get arrested and they were not going to get out of there alive. Appellant retrieved a knife from the kitchen. He pretended to stab Sylvia’s abdomen with it, but he did not touch her. He put down the knife and said he was going to drown her in the bathtub. Sylvia is terrified of water, a fact that she had previously conveyed to appellant.

While threatening to kill her, appellant picked up one of Sylvia’s cats, which is disabled. Appellant said the cat was also going to have to die. Appellant, however, did not harm the cat, which he put down.

Appellant orally copulated Sylvia and he placed his penis inside her vagina. She was in severe pain and unable to resist. The first rape occurred around 11:00 p.m.

At some point during the night in question, Sylvia told appellant that she needed to go to a hospital, but he ignored her. He brought her a bag to vomit in. He also brought her a blanket and a glass of water. She fell asleep on the floor. Early the next morning, she managed to get to a bathroom and she saw herself in the mirror. She was “covered with blood” and she was “still bleeding.”

Sylvia lay down on a bed. Appellant came into the room and he again placed his penis inside her vagina. She tried to stop him but he pushed her away. At trial, Sylvia estimated that the second rape occurred at about 6:30 a.m. on December 10, 2016.

At some point after raping her the second time, appellant fell asleep. Sylvia managed to drive to her parents’ home, arriving there just before 7:30 a.m.[3] Her family drove her to a hospital, and law enforcement was notified.

II. Sylvia’s Injuries.

Sylvia suffered “significant head injuries” from appellant’s attack. She was admitted to a hospital at around 9:00 a.m. on the morning of December 10, 2016. At that time, her face was covered in dried blood. She had several “relatively large lacerations” to her head and face. Two lacerations to the top of her head required staples and the ones on her face required sutures. A “substantial” number of sutures were needed to repair her face. The lacerations were “long and deep” and extended to the subcutaneous tissue. She had a large amount of bruising and swelling on her face.

Sylvia had at least one rib fracture on her right side. She had a variety of facial fractures that were very complicated. There were fractures of the cheekbone, orbit, and the maxillary sinus. She was treated for a diagnosed concussion.

III. Appellant Fled.

It was undisputed at trial that appellant fled after he woke on December 10, 2016. Law enforcement did not locate appellant until April 2017, when he was arrested without incident in the San Diego area.

At trial, appellant admitted that he fled once he woke up and saw the damage in the residence. He saw a lot of blood on the carpet and everything was in shambles. He “knew that something bad had happened.” He told the jurors that he did not turn himself into police because he was scared. He left the state for a time and then traveled to San Diego, where he stayed with family. Appellant knew police were looking for him after he fled and before he was apprehended. He admitted at trial that he had been avoiding arrest.

At some point after he fled but before he was apprehended, appellant exchanged text messages with Sylvia. He agreed at trial it sounded “familiar” that, when he texted her, he wrote that he had told some of his family members that he had assaulted her. However, he then claimed at trial that he could not remember making such a text. He then admitted to the jurors that he had told some of his family members that he had assaulted Sylvia.[4]

IV. Appellant’s Statements to Detectives.

Detectives interviewed appellant on April 19, 2017. The recorded interview was played for the jury. Appellant claimed both he and Sylvia were drinking at the time these crimes occurred. He said he was “really drunk.” He claimed Sylvia was intoxicated, too. Appellant admitted he “vaguely” remembered arguing with Sylvia when they got home on the night in question. He remembered “pulling her hair and then that’s it.” Appellant claimed he could not remember why he pulled her hair and he could not remember saying anything to her.

Appellant said he vaguely knew that they had argued about Sylvia’s car and her friend. Appellant mentioned to the detectives that something had happened “months before” with another man, but appellant did not know the extent of it. He admitted to the detectives that the prior incident with the other man had upset him.

Appellant denied remembering hitting or assaulting Sylvia. He could vaguely recall having sex with Sylvia that night, which he described as “normal sex.” He said he did not ejaculate inside of her, but pulled out and used a napkin to clean it off of her.

Appellant said he remembered seeing blood on the carpet. He became scared and he “just ran.” He denied raping Sylvia. The detectives showed him at least one picture of Sylvia with her injuries. Appellant denied remembering seeing her like that. He said he “couldn’t have done that.” The interview ended when appellant asked for an attorney.

V. Appellant’s Prior Rape.

The jury learned that, in 1992, appellant had raped his prior girlfriend, Michelle S., who was 17 years old at the time. Appellant was about 19 years old when this prior incident occurred in the area of Reno, Nevada. When this rape occurred, appellant and Michelle were having difficulty in their relationship. Appellant was angry with Michelle because she had aborted his child. He drove her to a rural area. He said he was going to kill himself. Michelle told the jury that appellant wanted to have sex with her, which she did not want. He forced himself on her and put his penis inside her vagina. She cried the entire time and told him to stop.

After a few minutes, appellant stopped and said he was sorry. He drove Michelle back to town. When he got out of the car, he said, “I know you’re going to tell, I’m going to kill myself.” That same day, Michelle reported this incident to law enforcement, and she underwent an examination at a hospital. Appellant was arrested the next morning.

At trial, appellant said he had been young when his prior incident with Michelle had occurred. He stated that he did “something wrong and I paid the price for it.” However, although he claimed he could not recall a lot of details about the incident. he denied having sex with Michelle against her will. Instead, he remembered it more that he “guilted her into sex.”

VI. Appellant’s Trial Testimony About his Attack on Sylvia.

Appellant explained to the jury that he had lived with Sylvia since approximately 2008, and they were still living together when he committed his crimes against her. In 2016, appellant searched Sylvia’s social media accounts without her permission. She was livid when she found out he went looking through her social media accounts. He had discovered that Sylvia was exchanging messages with a man that contained a lot of sexual innuendo. Appellant became jealous and angry by what he found, and he was emotionally hurt. He told the jury that he was depressed when Sylvia broke up with him, which he believed occurred in September 2016.[5]

Appellant admitted to the jury that he struggles with alcohol, and his drinking was a problem in his relationship with Sylvia. He had prior convictions for driving under the influence. In general, he was drinking alcohol every day. He tried to stop drinking in September 2016. He was sober approximately 59 days. However, he started drinking again on November 9, 2016, and a week later, he was drinking every day. He would drink about a fifth of vodka. He was drinking like that leading up to the incident on December 9, 2016.

Appellant told the jury that his memory of the event with Sylvia on December 9 and 10, 2016, was “[s]urreal, like a dream.” He could remember some arguing, and then “coming behind her, reaching out to grab her hair and there’s a flash and then that’s the last I remember that part.” He remembered “standing above her in front of the couch” and “sitting in front of her on the couch.” She was sitting on the other couch facing him, and he “was weeping.” He remembered walking into the bedroom and kneeling on the bed. He then woke up in the morning and Sylvia was gone. He became scared and he ran from the house when he saw a lot of blood on the carpet and everything in shambles.

At trial, appellant claimed he could not recall striking Sylvia with the candlestick or otherwise hitting her with his fists. He could not recall having sex with her. He could not remember telling her that he was going to kill her. He testified that he knew he was responsible for what had happened because he was the only one in the house, but he did not know what had happened. However, he said on cross-examination that he “had an idea” he had assaulted her. He admitted at trial that he had been “upset” with Sylvia on December 9, 2016.

VII. Appellant’s Use of Chantix.

A big emphasis of appellant’s defense was his deteriorating mental health leading up to his attack of Sylvia. Before this incident, they had no history of violence together.

On or about October 4, 2016, appellant started taking prescription Chantix to try to stop smoking. He had this prescription refilled on or about November 5, 2016. He was supposed to take pills twice a day, but he would sometimes miss a dose and he would then double up the dosage the next day. He estimated that he missed a Chantix dose “a little bit more than 12 times” in the 60-day period. Appellant admitted at trial that he knew he was not supposed to double up his Chantix doses.

Appellant claimed that he could not recall if the prescribing doctor gave him any paperwork regarding Chantix. He could not remember if the doctor talked to him at all about his past drinking, depression, mental health, attempted suicides, or suicidal thoughts. He could not remember discussing with the prescribing doctor the side effects of Chantix. However, appellant admitted at trial that it was fair to assume the prescribing doctor had explained to him what Chantix is and how to use it, including its risks and side effects.

John Treuting, Ph.D., a toxicologist, testified for appellant during the guilt phase. Treuting provided information to the jury about Chantix, which is manufactured by Pfizer. Information can be found on the Internet that shows how to use Chantix, its adverse reactions and the warnings associated with it. Adverse effects are noted in the literature regarding the consumption of alcohol while taking Chantix. In part, alcohol with Chantix can cause (1) unusual or aggressive behavior; (2) decreased tolerance to the alcohol; and (3) memory lapse. This is sort of amnesia or “an amnestic response” otherwise known as a blackout. Treuting clarified that an amnestic response is where a person will do something and not have any memory of it. He stated, “It’s not like you’re unconscious; you just don’t remember.” A person might remember certain portions but not others.

Treuting testified that Chantix can impact people with mental health disorders. It can create or worsen mental health problems regarding behavior or thinking, aggression, hostility, agitation, mood and depression. An increase in suicidal thoughts and suicide attempts may occur.

Treuting opined that the presence of alcohol with Chantix could create a change in cognition of an individual, and cause aggressive behavior. Alcohol with Chantix could cause an amnestic response due either to Chantix or to alcohol. However, Treuting admitted that alcohol by itself can cause blackouts and increase violence.[6]

VIII. Appellant’s Mental Health.

The jury learned that appellant had two prior suicide attempts. He tried to overdose with sleeping pills while he was a young man in Reno, Nevada. Another time in San Diego he sliced his wrist. He had other occasional suicidal thoughts.

From about September 12, 2016, through November 8, 2016, appellant was sober. However, on or about November 9, 2016, he relapsed and began drinking again. Just before relapsing, appellant sought help for his mental health. On November 4, 2016, he checked into the Mary K. Shell Mental Health Center, which is a crisis center for mental health. Appellant was experiencing severe depression at that time. He was going through the separation with Sylvia, fighting alcoholism, trying to quit smoking, his work was very demanding,[7] and “everything was so overwhelming.” He felt that he was in a crisis when he checked in. He could not recall if he was asked about his prescription drugs at that time. He went to that center two more times until his insurance coverage ran out. He then received some counseling in November 2016 at Kern Mental Health. He could not recall being asked about his prescription drugs.

In November 2016, appellant was drinking alcohol while taking Chantix, including an occasional double dosage if he missed a prior dose. He could not recall how often or how many times he took Chantix, and he did not know if he took Chantix on December 8 or 9, 2016. However, he believed he took Chantix in both October and November 2016 because he refilled his prescription. He told the jurors that he was taking the drug up until the time of the incident on December 9, 2016. He told the jury that, in December 2016, he was not working and he was drinking every day.

On November 28, 2016, appellant saw a psychiatrist, who diagnosed appellant with severe alcohol use disorder, and adjustment disorder. Bipolar disorder was neither diagnosed nor ruled out. The record from that visit showed that appellant did not report taking Chantix. During this visit, appellant was prescribed Trazodone and Gabapentin, which are antidepressants but can be used for a variety of issues. Appellant told the jury that he felt “a little bit different” because of the pills.[8]

IX. Appellant’s Convictions and his Prison Sentence.

The jury convicted appellant of all charged crimes. His convictions were as follows:

1. In count 1, guilty of attempted murder (Pen. Code, §§ 664/187).[9] The jury found it true that appellant personally used a dangerous weapon (the candlestick) (§ 12022, subd. (b)(1)), and he inflicted great bodily injury (§ 12022.7, subd. (e)).

2. In count 2, guilty of rape by force or fear (§ 261, subd. (a)(2)). The jury found it true that appellant personally inflicted torture (§ 667.61, subd. (d)(3)) and great bodily injury (§ 667.61, subd. (d)(6)), and he personally used dangerous weapons (the candlestick and the knife) (§ 667.61, subd. (e)(3)).

3. In count 3, guilty of assault with a deadly weapon (the candlestick) (§ 245, subd. (a)(1)). The jury found it true that appellant personally inflicted great bodily injury (§ 12022.7, subd. (e)).

4. In count 4, guilty of felony assault with a deadly weapon (the knife) (§ 245, subd. (a)(1)). However, in addition to finding appellant guilty of a felony in this count, the jury also returned a verdict indicating that appellant was guilty of the lesser included offense of misdemeanor assault (§ 240). Later in this opinion, we agree with the parties that appellant’s conviction in count 4 must be modified to reflect a conviction of the lesser included offense.

5. In count 5, guilty of making a criminal threat (§ 422). The jury found it true that appellant personally used a dangerous weapon (the knife) (§ 12022, subd. (b)(1)).

6. In count 6, guilty of torture (§ 206). The jury found true that appellant personally used dangerous weapons (the candlestick and the knife) (§ 12022, subd. (b)(1)).

7. In count 7, guilty of rape by force or fear (§ 261, subd. (a)(2)). The jury found true that appellant personally inflicted torture (§ 667.61, subd. (d)(3)) and personally used a dangerous weapon (the candlestick) (§ 667.61, subd. (e)(3)).

For both counts of rape (counts 2 and 7), appellant was sentenced to prison for consecutive terms of 25 years to life. For attempted murder (count 1), the trial court imposed a consecutive midterm of seven years, which was enhanced by one year because appellant personally used a dangerous weapon, and further enhanced by five years because appellant inflicted great bodily injury. For making a criminal threat (count 5), appellant received two years in prison, which was enhanced by one year because the jury found true that appellant had personally used a dangerous weapon (a knife) during the commission of this crime. The sentence in count 5 was ordered to run concurrently with the indeterminate term imposed in count 2 for one of the rape convictions.[10]

DISCUSSION

I. Substantial Evidence Supports the Conviction for Attempted Murder.

Appellant argues that his conviction in count 1 for attempted murder must be reversed. He contends that substantial evidence did not establish his intent to kill.

A. Standard of review.

When considering a challenge to the sufficiency of the evidence to support a conviction, we review the record in the light most favorable to the judgment and decide whether it contains substantial evidence from which a reasonable finder of fact could make the necessary finding beyond a reasonable doubt. The evidence must be reasonable, credible and of solid value. We presume every inference in support of the judgment that the finder of fact could reasonably have made. We do not reweigh the evidence or reevaluate witness credibility. We cannot reverse the judgment merely because the evidence could be reconciled with a contrary finding. (People v. D'Arcy (2010) 48 Cal.4th 257, 293.)

B. Analysis.

Appellant asserts that this record fails to support a reasonable conclusion that he definitely and unambiguously intended to kill Sylvia. He maintains that, had he wanted to end her life, “he simply could have done so and quite easily.” He notes that, instead of killing Sylvia, he provided a plastic bag for her to vomit in, he brought her water, and he brought her a blanket to keep her warm. He argues that these acts are “completely inconsistent with an intent to kill.” He contends that the evidence regarding his intent to kill was “at best equivocal” under the circumstances. He asks this court to reverse his conviction for attempted murder. We reject appellant’s arguments.

The elements of attempted murder are (1) at least one direct but ineffective step toward killing another person and (2) an intent to kill that person. (CALCRIM No. 600.) Although implied malice is sufficient for murder, express malice is required to prove attempted murder.[11] (People v. Stone (2009) 46 Cal.4th 131, 139–140; People v. Swain (1996) 12 Cal.4th 593, 604–605.)

Appellant struck Sylvia on her head and face with a large metal candlestick. He hit her head with this object approximately eight or 10 times. She fell to the ground. At trial, Sylvia agreed that this metal candlestick was heavy. It broke apart while appellant was using it to strike her head repeatedly.

Sylvia suffered a concussion, and she was dizzy. She suffered multiple facial fractures. The jury saw pictures of the extensive injuries she suffered to her head and face as a result of the beating which appellant rendered while using the heavy candlestick. The jury also saw pictures of the staples that were needed to close the wounds to her head.

The mental state required to convict a defendant of attempted murder may be inferred from the defendant’s acts and the circumstances of the crime. (People v. Smith (2005) 37 Cal.4th 733, 741.) Here, a reasonable inference exists that appellant intended to kill Sylvia when he struck her head repeatedly with a heavy object. Indeed, striking her head in this fashion is, by itself, substantial evidence to support the jury’s determination that appellant intended to kill. (See, e.g., People v. Seaton (2001) 26 Cal.4th 598, 667 [intent to kill strongly suggested when defendant hit victim on head with a hammer more than 40 times; People v. Lasko, supra, 23 Cal.4th 101, 112 [intent to kill strongly suggested by defendant hitting victim’s head with a baseball bat].)

Moreover, in addition to striking Sylvia’s head eight to 10 times with a deadly weapon, appellant put pressure on her neck after she fell down. She had trouble breathing. She started to cry a little and she asked why he was doing that. He “kind of let up” and she was able to breathe. Around that time, appellant stated that he wanted to kill her, and she did not deserve to live. Appellant’s actions in putting pressure on Sylvia’s neck, and stating that he wanted to kill her, is further substantial evidence supporting the jury’s finding of an express intent to kill.

At some point during this ordeal, appellant complained to Sylvia that she was not “bleeding out fast enough” and he wanted to locate her firearm. He looked for Sylvia’s handgun in the house but he could not find it.

While Sylvia was lying on the ground, appellant broke at least one of her ribs by kicking or stomping on her. At some point during the night in question, Sylvia told appellant that she needed to go to a hospital, but he ignored her. Early the next morning, she managed to get to a bathroom and she saw herself in the mirror. She was “covered with blood” and she was “still bleeding.” Although appellant provided Sylvia with a plastic bag for her to vomit in, some water, and a blanket, he never summoned medical aid for her when she clearly needed emergency care. He ignored her plea for help. From all of this, a reasonable inference may be drawn that appellant intended for Sylvia to succumb to her injuries during the night.

Viewing the record in the light most favorable to the judgment, overwhelming sufficient evidence supports the jury’s verdict of attempted murder. Appellant repeatedly struck Sylvia’s head with a heavy deadly object, and he told her that he wanted her to die. He asked why she was not bleeding out faster. Although she asked for help and she appeared in obvious distress, he did not summon aid for her throughout the ordeal but, rather, raped her twice. The evidence establishing appellant’s express intent to kill was reasonable, credible and of solid value. We will not reweigh this evidence or reevaluate witness credibility. We will not reverse the judgment merely because appellant can point to other interpretations that may be drawn from the record. (People v. D'Arcy, supra, 48 Cal.4th at p. 293.) Consequently, reversal is not warranted and this claim fails.

II. Substantial Evidence Supports the Jury’s Sanity Finding.

Appellant contends that the evidence in the sanity phase was of such weight that a jury could not reasonably reject it. He seeks reversal of the jury’s verdict finding it not true that he was legally insane when these crimes occurred.

A. Background.

During the sanity phase, the jury heard from three expert witnesses. Appellant called two of those witnesses, Thomas Middleton and Dean Haddock. The People called Michael Musacco.

1. Middleton’s testimony for the defense at the sanity trial.

Middleton is a licensed psychologist. The defense retained him to evaluate whether appellant met the criteria for legal insanity at the time of his offenses. In February and March 2018, Middleton met with appellant four times. They had about seven or eight hours together. Middleton reviewed appellant’s records, and he issued a report dated March 17, 2018. According to Middleton, nothing suggested appellant was malingering or being dishonest.

In relevant part, Middleton diagnosed appellant with bipolar I disorder, severe depression, and severe alcohol use disorder. Middleton told the jury that it appeared appellant had suffered from a long-term mental illness for which he had been self-medicating with alcohol. On more than one occasion, appellant had sought treatment for his alcohol dependence, and he had sought treatment for his psychiatric issues.

According to Middleton, appellant was insane at the time of these offenses. Middleton opined that appellant’s mental disease or defect had been exacerbated by Chantix and alcohol. Appellant suffered a blackout, during which time he did not understand the nature and quality of his actions, and he did not understand right from wrong.[12]

Middleton explained that Trazodone and Chantix alter brain chemistry. Chantix poses significant risk factors for people with an underlying mental disorder. Chantix has been known to enhance adverse reactions regarding bipolar disorder. Aggression, hostility, and depressed mood can occur. When combined with a pre-existing mental illness, Chantix can have adverse neuropsychiatric effects. Middleton opined that Chantix amplified appellant’s mental illness and led, in part, to the criminal incident. The antidepressant prescribed to appellant just before the incident “may certainly” have been “a very toxic combination.”

Middleton was “very confident” that, at the time of this criminal incident, appellant had been incapable of knowing whether his actions were legally right or wrong. Middleton was also very confident that this criminal incident had been based on Chantix and alcohol exacerbating a prior mental health disorder.

2. Haddock’s testimony for the defense at the sanity trial.

Haddock is a licensed psychologist. He had been appointed by the court in this case to evaluate appellant and determine if he was insane at the time of the incident. Haddock met with appellant and he conducted testing. Haddock did not believe that appellant was malingering.

Haddock issued a final report on June 4, 2018. He had read Middleton’s report before doing his assessment. In relevant part, Haddock diagnosed a substance/medication-induced psychotic disorder, and a severe depressive disorder. Haddock also found severe alcohol abuse. Finally, Haddock diagnosed bipolar I disorder with psychotic anxious mixed features.

Haddock explained that bipolar disorders are a hereditary condition which may stay dormant unless a person experiences trauma. It can also be caused by medication or illegal drugs.

Haddock did independent research on Chantix. He was surprised by his research and he believed Chantix explained the symptoms which he had observed in appellant. According to Haddock, if mixed with other medications or alcohol, Chantix can change a person’s behavior and mental state. It was possible that appellant’s depressive disorder and bipolar I disorder were exacerbated by Chantix.

Haddock opined that appellant was legally insane when he committed these crimes. Appellant was unable to know his act was morally or legally wrong. Haddock explained that a dissociative state can cause a person to behave in ways that they cannot remember.

3. Musacco’s testimony for the People at the sanity trial.

Musacco is a licensed psychologist who was appointed by the court in this matter. He met with appellant on one occasion in May 2018 and conducted an assessment interview. He obtained certain medical records pertaining to appellant. He also received Middleton’s report.

Musacco testified that he did not see a pattern of mental disorder prior to appellant’s breakup with Sylvia. Musacco was aware of one prior suicide attempt by appellant, and that appellant had been in a psychiatric hospital for a period of time.[13]

Musacco diagnosed appellant with severe alcohol use disorder, depression, and an “unspecified suppressive disorder” based on “some features of an adjustment disorder.” Musacco explained to the jury that psychologists and psychiatrists are “not really great” at rendering a diagnosis. Five different doctors may say someone has a mood disorder and some type of depressive disorder, but they may diagnose major depression or adjustment disorder because “sometimes there’s only slight differences.” According to Musacco, it was inaccurate to diagnose appellant with a bipolar disorder because there was no evidence of mania.

Musacco testified that, when these crimes occurred, appellant was suffering from depression and alcohol use disorder, which are recognized as a mental disease or defect. However, there was no information to support a finding that, because of his disease or defect, appellant was incapable of knowing or understanding the quality of his act, or incapable of knowing whether his act was morally or legally wrong. Musacco opined that appellant was not insane when he committed these crimes. Musacco told the jury that voluntarily drinking alcohol and then “doing something horrible” does not equate to insanity. Musacco emphasized that people do many things under the influence of alcohol or drugs that they would not normally do, which they might regret the following day.

Musacco noted that appellant woke up, realized he had done something wrong, and he fled the state. According to Musacco, appellant’s flight showed he knew his behavior had been wrong. After fleeing, appellant spoke with Sylvia and expressed remorse, which further showed he had understood right from wrong. Musacco did not see appellant as having a mental illness that prevented him from understanding right from wrong.

Musacco reviewed Haddock’s report a few weeks before testifying. Musacco did not see evidence of either bipolar disorder or a brief psychotic disorder. Musacco explained that a psychosis is a break from reality, and evidence did not support that finding.

Musacco was aware that appellant had claimed to have taken Chantix. Musacco believed Chantix may have led to appellant’s behaviors, but that did not meet the criteria for insanity. Instead, Musacco emphasized that the root cause of this incident was appellant’s use of alcohol. Musacco explained that, when alcohol is the tipping factor, it moves the discussion outside the realm of legal insanity.

Appellant had told Musacco that he had no prior history of violence or sexual violence, but that was not accurate. According to Musacco, appellant’s prior incident with Michelle S. showed a history of similar behavior.

B. Standard of review.

We must clarify the appropriate standard of review. Appellant contends that the question is not whether substantial evidence supports the jury’s sanity finding, but, rather, whether contrary evidence exists of such weight and character that the jury could not reasonably have rejected it. He primarily relies on two opinions: (1) People v. Drew (1978) 22 Cal.3d 333, 351 (Drew), superseded by statute on other grounds as stated in People v. Marsh (2018) 20 Cal.App.5th 694, 696, fn. 1; and (2) People v. Duckett (1984) 162 Cal.App.3d 1115, 1119 (Duckett).

We disagree that Drew articulates the correct standard of review. Drew involved a sanity trial wherein the only evidence introduced was the testimony of two court-appointed psychiatrists, both of whom opined that defendant was insane. The prosecution presented no evidence at all. (Drew, supra, 22 Cal.3d at pp. 338–339, 350.)

Our high court has subsequently observed that the Drew standard “arose in the context of a sanity trial in which the expert evidence of insanity was uncontested, and we have applied Drew’s articulation of the standard only in that specific context.” (People v. Powell (2018) 5 Cal.5th 921, 956–957.) In contrast to Drew, where the evidence of sanity is contested, “a jury’s finding of sanity will be affirmed if it is supported by evidence that is reasonable, credible, and of solid value, from which a reasonable trier of fact could find the defendant sane by a preponderance of the evidence.” (People v. Powell, supra, 5 Cal.5th at p. 957.)

Here, the evidence regarding appellant’s sanity was in dispute. Accordingly, we reject appellant’s reliance on the Drew standard. The jury’s finding of sanity will be affirmed if it is supported by evidence that is reasonable, credible, and of solid value, from which a reasonable jury could find that appellant was sane by a preponderance of the evidence. (People v. Powell, supra, 5 Cal.5th at p. 957.)

C. Analysis.

Appellant argues that Musacco’s testimony that he was sane was not adequately supported by the evidence. Appellant contends that Musacco’s reasoning was flawed, and the jury should have rejected it. Appellant notes that Musacco met with him only once, and Musacco did not conduct extensive psychological testing similar to that of Middleton. When Musacco interviewed appellant, Musacco was unaware of appellant’s two prior suicide attempts, his psychological crisis, or his attempts to seek help. Appellant asserts that Musacco was unaware of his polypharmacy use.

Appellant maintains that his two experts both opined that his alcoholism was a symptom masking a more severe bipolar depressive disorder. According to appellant, Musacco improperly took a “narrow” view of his condition. Appellant also argues that Musacco was incorrect about some of his facts, including an erroneous belief from Sylvia that both she and appellant had been drinking leading up to the crime. Appellant’s various arguments are unpersuasive.

A defendant bears the burden to prove by a preponderance of the evidence that he was insane at the time of the offense. (People v. Hernandez (2000) 22 Cal.4th 512, 520.) “Insanity, under California law, means that at the time the offense was committed, the defendant was incapable of knowing or understanding the nature of his act or of distinguishing right from wrong.” (Ibid.) Under this standard two distinct and independent bases exist upon which a verdict of not guilty by reason of insanity might be returned. (People v. Skinner (1985) 39 Cal.3d 765, 769.) A defendant may suffer from a diagnosable mental illness without being legally insane. (People v. Mills (2012) 55 Cal.4th 663, 672.)

In Duckett, an opinion which appellant cites, three psychiatrists testified in the sanity phase that the defendant could neither substantially appreciate the criminality of his conduct, nor conform his conduct to the requirements of the law. No alternative expert opinions were provided. The jury, however, found the defendant sane. (Duckett, supra, 162 Cal.App.3d at p. 1119.) Citing Drew, the Duckett court stated that the issue on appeal was not necessarily the substantiality of the evidence favoring the jury’s finding, but, instead, whether the evidence contrary to that finding was of such weight and character that the jury could have reasonably rejected it. (Duckett, supra, at p. 1119, citing Drew, supra, 22 Cal.3d at pp. 350–351.) Duckett concluded that a reasonable jury could not have rejected the evidence of the defendant’s insanity. (Duckett, supra, at p. 1120.) The defendant had a long history of chronic paranoid schizophrenia. (Id. at p. 1121.) He had prior violent episodes, and he was previously committed to state hospitals. (Ibid.) The prosecution’s psychiatrist who interviewed the defendant concluded that he was insane, and the appellate court determined that no circumstances were present that would have permitted the jury to reject that expert opinion. (Id. at p. 1123.) The jury’s verdict finding the defendant legally sane was reversed. (Ibid.)

Duckett is distinguishable from the present matter because appellant’s jury heard from competing expert witnesses. Appellant’s two experts, Middleton and Haddock, opined that appellant was insane when these crimes occurred. In contrast, the People’s expert, Musacco, took the opposite view. As such, Duckett does not establish that error occurred. Moreover, Duckett’s reliance on the Drew standard is misplaced in the present situation because the evidence of appellant’s sanity was in dispute. (See People v. Powell, supra, 5 Cal.5th at p. 957 [in contrast to Drew, where the evidence of sanity is contested, “a jury’s finding of sanity will be affirmed if it is supported by evidence that is reasonable, credible, and of solid value, from which a reasonable trier of fact could find the defendant sane by a preponderance of the evidence”].) Consequently, Duckett is inapposite.

Appellant asks this court to reject Musacco’s testimony as a matter of law. We decline to do so. During the sanity phase, the trial court instructed the jury with CALCRIM No. 332. The jurors were asked to consider each expert witness’s knowledge, skill, experience, training, and education. The jurors were told to consider the reasons each expert gave for his opinions, and the underlying information on which each expert relied in reaching that opinion. The jurors were informed they could disregard any opinion that they found unbelievable, unreasonable, or unsupported by the evidence.

The jurors had the exclusive role to judge the credibility of the competing expert witnesses, and to determine the truth or falsity of the facts. (§ 1127; People v. Letner and Tobin (2010) 50 Cal.4th 99, 162.) The jurors were entitled to accept Musacco’s testimony, and reject Middleton’s and Haddock’s contrary expert opinions. (People v. Carter (1961) 56 Cal.2d 549, 560 [“it was for the jury to resolve the conflicts in the expert testimony, accepting such of it, or none of it, as they saw fit”]; People v. Mercer (1999) 70 Cal.App.4th 463, 466 [credibility of experts and their conclusions is for trier of fact to resolve].)

The testimony of a single witness is sufficient to establish any fact. (Evid. Code, § 411.) It is not our role on appeal to reweigh the credibility of the various expert opinions. Consequently, although appellant raises concerns in this appeal regarding the sufficiency of Musacco’s expert opinions, we will not disturb the jury’s credibility determinations.

In any event, we disagree with appellant’s contention that Musacco gave the jury a speculative opinion based on unfounded assumptions. To the contrary, Musacco explained how he reached his opinions, including a meeting with appellant and an assessment interview. After the interview, he conducted a mental status examination. Musacco had reviewed some of appellant’s medical records. Musacco was aware that appellant had one prior suicide attempt, and appellant was in a psychiatric hospital for a period of time.

Musacco also explained why he disagreed with a diagnosis of bipolar disorder because there was no evidence of mania. He had reviewed Middleton’s and Haddock’s reports, and neither changed his opinion. Musacco opined that appellant did not have a mental disorder that influenced him so that he did not understand the nature and quality of his act, or made him incapable of knowing or understanding that his acts were morally or legally wrong. Musacco acknowledged that appellant was suffering from alcohol addiction and some degree of depression before these crimes. He became depressed when his relationship with Sylvia ended. However, although he was very depressed, he was not insane.

Musacco agreed that it was “very possible” Chantix and alcohol led to a blackout state. However, Musacco opined that any such blackout state did not equate with insanity. Instead, appellant used alcohol on the night in question and then he engaged in these horrible behaviors. According to Musacco, appellant’s use of alcohol moved the discussion outside the realm of insanity.

Based on this record, a reasonable jury could find it not true that appellant was legally insane when these crimes occurred. We will not reweigh the conflicting testimony from the expert witnesses. The jury’s sanity determination is supported by evidence that is reasonable, credible, and of solid value. As such, substantial evidence supports the jury’s sanity verdict. (See People v. Powell, supra, 5 Cal.5th at p. 957.) Accordingly, appellant’s arguments are without merit, and reversal is not required.

III. Any Alleged Instructional Error Was Overwhelmingly Harmless.

Appellant asserts that the trial court prejudicially erred during both the guilt and sanity phases when it refused to instruct on the doctrines of unconsciousness (CALCRIM No. 3425) and involuntary intoxication (CALCRIM No. 3427). He maintains that he was unable to present his full defense.

A. Background.

1. An overview of CALCRIM No. 3425.

CALCRIM No. 3425 instructs a jury on the doctrine of unconsciousness. This states that a defendant is not guilty if he “acted while unconscious. Someone is unconscious when he or she is not conscious of his or her actions. [Someone may be unconscious even though able to move.] [¶] Unconsciousness may be caused by (a blackout[,]/ [or] an epileptic seizure[,]/ [or] involuntary intoxication[,]/ [or] ______________ <insert a similar condition>).”

This instruction provides that the defense of unconsciousness “may not be based on voluntary intoxication.” The prosecution bears the burden to prove beyond a reasonable doubt that the defendant was conscious when he acted. “If there is proof beyond a reasonable doubt that the defendant acted as if [he] were conscious, you should conclude that [he] was conscious, unless based on all the evidence, you have a reasonable doubt that [he] was conscious, in which case you must find [him] not guilty.” (CALCRIM No. 3425.)

2. An overview of CALCRIM No. 3427.

CALCRIM No. 3427 instructs a jury on the doctrine of involuntary intoxication. This directs a jury to “[c]onsider any evidence that the defendant was involuntarily intoxicated in deciding whether the defendant had the required (intent/ [or] mental state) when [he] acted. [¶] A person is involuntarily intoxicated if [he] unknowingly ingested some intoxicating liquor, drug, or other substance, or if [his] intoxication is caused by the (force/[, [or] duress/, [or] fraud/, [or] trickery of someone else), for whatever purpose[, without any fault on the part of the intoxicated person].”[14] (CALCRIM No. 3427.)

3. The instruction conference during the guilt phase.

During the guilt phase, appellant requested the trial court to instruct the jury regarding the doctrines of unconsciousness and involuntary intoxication. According to appellant’s trial counsel, although Chantix appears to be safe, it has an intoxicating impact and it causes adverse neuropsychiatric reactions. Counsel asserted that it should not be accepted as true that taking prescription drugs and alcohol together implicitly means a person has accepted the risk of an adverse reaction. Treuting had testified that many people have a few drinks while taking prescription medications and suffer no adverse reactions. Defense counsel argued that appellant could not recall ever receiving any warnings about Chantix. According to counsel, this meant appellant did not have knowledge of its adverse effects, and “this is a classic case of innocent use.” Finally, defense counsel noted that Treuting had testified that appellant was not unconscious. However, counsel argued that the doctrine of unconsciousness had a different legal definition, and an unconsciousness instruction was warranted.

After hearing arguments from the prosecutor, the trial court stated that it did not see evidence that appellant was not at fault. According to the court, appellant was voluntarily intoxicated when these crimes occurred. The court stated its belief that it is “common knowledge” a person should not mix alcohol with prescribed medication. Because appellant voluntarily drank alcohol and he voluntarily took the medication, an instruction on involuntary intoxication was not warranted.

Defense counsel memorialized two points for the record. First, Treuting had testified about sleep walking, which counsel believed is similar to the drug Ambien. Second, it was not just the adverse effects of Chantix with alcohol. Instead, appellant had “very limited knowledge” of his underlying mental condition. According to counsel, Chantix was unique because it could cause adverse neuropsychiatric effects even without alcohol being involved. After hearing defense counsel’s two points, the trial court confirmed it would not give the requested instructions.

4. The instruction conference during the sanity phase.

During the sanity phase, appellant’s trial counsel argued that the standard instruction regarding insanity (CALCRIM No. 3450) is confusing, and it did not anticipate appellant’s unique situation wherein appellant involuntarily intoxicated himself with Chantix without knowing its adverse effects. Defense counsel requested some type of instruction on involuntary intoxication to supplement an instruction on insanity. The trial court noted defense counsel’s “consistent request” regarding involuntary intoxication. The court denied a request for an instruction on involuntary intoxication.

B. Analysis.

Appellant contends that the trial court’s refusal to give the requested instructions deprived him of his right to present a complete defense. He maintains that his use of Chantix, which resulted in severe side effects which were unknown to him, raised the possibility of legal unconsciousness and involuntary intoxication. He argues expert testimony in both phases of trial supported these instructions. In contrast, respondent maintains that the trial court had no duty to instruct the jury on either unconsciousness or involuntary intoxication because no evidence supported such instructions.

We need not resolve the parties’ dispute regarding whether or not instructional error occurred at either the guilt or sanity phases of trial. Instead, this record overwhelmingly demonstrates that any alleged instructional error was harmless by any applicable standard.

1. Any alleged instructional error was overwhelmingly harmless at the guilt phase.

During the guilt phase, the trial court instructed the jurors that a specific criminal intent was necessary for the following alleged crimes and special allegations:

1. Attempted murder (§§ 664/187; count 1);

2. Making criminal threats (§ 422; count 5);

3. Torture (§ 206; count 6); and

4. The additional allegations in counts 2 and 7 that appellant inflicted torture during the infliction of great bodily injury (§ 667.61, subd. (d)(3)).[15]

The jurors were told that, if they found appellant guilty of these crimes or found these allegations true, appellant must not only have intentionally committed the prohibited act, but must have done so with a specific intent and/or mental state, which was explained in more detail for each crime or allegation.

The jurors were informed that, for attempted murder, appellant must have held a specific intent to kill. For making criminal threats, appellant must have acted with the specific intent that his statement or statements be understood as a threat and with the specific intent that it be communicated to Sylvia. Finally, for torture and the special allegations associated with rape, appellant must have acted with the specific intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion or for any sadistic purpose.

With CALCRIM No. 3426, the jurors were instructed that they could consider evidence of appellant’s voluntary intoxication in deciding whether he acted with an intent to kill, an intent to make and communicate a criminal threat, and/or an intent to cause cruel or extreme pain and suffering.

With CALCRIM No. 3428, the court informed the jury that it had heard evidence appellant may have suffered from a mental disorder. This evidence could be considered only for the limited purpose of deciding whether appellant had acted with the intent or mental state required for each crime at the time of the charged crimes. The jury was told that the prosecution had the burden of proving beyond a reasonable doubt that appellant acted with the required intent or mental state, in part, for attempted murder (count 1); making a criminal threat (count 5), and torture (count 6).

During closing argument in the guilt phase, defense counsel focused on specific intent. Counsel asserted to the jury that appellant had lacked specific intent because of four factors: (1) stress; (2) a mental health disorder that became “exacerbated”; (3) Chantix; and (4) alcohol. Counsel argued that all four factors impacted appellant, which caused appellant “to basically be in a psychosis, which is important because he didn’t have clear and specific intent.” Counsel emphasized that, if the People had not proven specific intent beyond a reasonable doubt, the jurors must find appellant not guilty.

Defense counsel noted that appellant had acted strangely leading up to this event, which had prompted Sylvia to hide her gun.[16] During the incident, Sylvia said appellant had acted like a zombie or robot.[17] Defense counsel argued that appellant had not acted with intent, but, rather, in a frenzied and bizarre manner. Counsel noted that appellant had threatened to hurt one of Sylvia’s cats, but appellant then fed the cats the following morning at Sylvia’s request.[18]

Defense counsel focused on appellant’s use of Chantix. Counsel noted that Chantix is known to exacerbate symptoms related to mental health and alcohol. It was concerning that appellant was using Chantix along with an antidepressant. Chantix had many negative side effects, and most people, including appellant, would not be aware of those issues. Counsel argued that the evidence supported a finding drugs and alcohol were impacting appellant, who had a disturbed episode and acted without clear specific intent.

Following these arguments, the jury convicted appellant of all charged crimes, including those that required a specific criminal intent. The jurors also found true those special allegations that required a specific intent.

The trial evidence was overwhelming that appellant had formed specific criminal intents when he severely beat Sylvia, ignored her cries for help, and tortured her. After severely injuring her, he raped her twice. Based on the verdicts rendered, it is readily apparent that the jury rejected appellant’s claim during the guilt phase that Chantix had prevented him from forming a specific criminal intent.

In People v. Boyer (2006) 38 Cal.4th 412 (Boyer), the defendant argued that instructional error occurred because the trial court failed to instruct on the complete defense of unconsciousness. (Id. at p. 468.) The high court declined to address whether instructional error had occurred, finding that any instructional error “was harmless by any applicable standard.” (Id. at p. 470.) The jury had been instructed that voluntary intoxication warranted a verdict of involuntary manslaughter, rather than murder. However, the jury convicted the defendant of murder, found true a special circumstance allegation that rendered him eligible for the death penalty, and sentenced him to death. The only logical inference was that the jury had entirely rejected the defendant’s claim of unconsciousness. (Id. at p. 471.) “Hence, an instructional failure to explain the jury’s duty in the event it found involuntary unconsciousness can have caused no prejudice.” (Ibid.)

In People v. Heard (2003) 31 Cal.4th 946 (Heard), the defendant ingested cocaine and alcohol. (Id. at p. 981.) The jury was instructed that a specific intent was required to find the defendant guilty of specified sexual offenses, and the jury was told to consider the effect of the defendant’s intoxication in deciding his mental state. (Id. at p. 982.) The Supreme Court concluded that, in convicting the defendant of the sexual offenses, the jury necessarily determined that the defendant had formed the requisite specific intent despite his consumption of drugs and alcohol. (Ibid.) The jury could not have concluded he was unconscious. Thus, even if instructional error had occurred, any such error was clearly harmless. (Ibid.)

Here, similar to Boyer and Heard, any alleged error in failing to instruct on unconsciousness or involuntary intoxication was harmless under any applicable standard. (See Boyer, supra, 38 Cal.4th at p. 470; Heard, supra, 31 Cal.4th at p. 982.) The jury necessarily determined that, despite appellant’s consumption of alcohol and prescription medications, he had the specific criminal intent necessary to find him guilty of multiple felonies committed during the course of his conduct. Thus, prejudice did not occur at the guilt phase, and we reject appellant’s various arguments to the contrary.

2. Any alleged instructional error was overwhelmingly harmless at the sanity phase and we need not resolve the parties’ dispute regarding forfeiture.

At the sanity phase, appellant requested an instruction on involuntary intoxication to supplement the standard instruction regarding insanity under CALCRIM No. 3450. Defense counsel argued that the insanity instruction is confusing, and it did not anticipate appellant’s unique situation wherein he involuntarily intoxicated himself with Chantix without knowing its adverse effects. The trial court noted defense counsel’s “consistent request” regarding an instruction on involuntary intoxication, which the court denied.

Respondent argues that appellant has forfeited his claim of instructional error at the sanity phase regarding the doctrine of unconsciousness. According to respondent, appellant was obligated to request this instruction if he wanted it to provide clarification or amplification. (See People v. Lee (2011) 51 Cal.4th 620, 638.) In contrast, appellant contends that unconsciousness is not a “pinpoint” instruction, and the court’s failure to instruct on this doctrine at the sanity phase impacted his substantial rights. (§ 1259 [an appellate court may “review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby”].)

We need not resolve the parties’ dispute regarding whether the trial court had a sua sponte duty at the sanity phase to instruct on the doctrine of unconsciousness, or whether appellant has forfeited this particular claim. Instead, we determine that any alleged instructional error at the sanity phase involving both unconsciousness and/or involuntary intoxication was harmless.

With CALCRIM No. 3450, the trial court instructed on the legal definition of insanity. The jurors were told to determine whether appellant was legally insane when he committed the crimes, and appellant had the burden of proof. Appellant was insane if (1) he had a mental disease or defect when he committed the crimes and (2) because of that mental disease or defect, he was incapable of knowing or understanding the nature and quality of his act, or was incapable of knowing or understanding that his act was morally or legally wrong.

In relevant part, the court informed the jurors that abusing drugs or intoxicants, or being addicted to them, does not qualify as legal insanity. This was true even if the intoxicants caused a settled mental disease or defect that lasted after the immediate effects of the intoxicants have worn off. Likewise, a temporary mental condition caused by recent use of drugs or intoxicants was not legal insanity. The jurors were instructed that a settled mental disease or defect is one that remains after the effects of the drugs or intoxicants have worn off.

During closing argument at the sanity phase, defense counsel asserted that appellant had a prior mental disease or defect, which had been exacerbated by Chantix. Sylvia had said appellant was acting like a zombie and robot on the night in question, and appellant had not been making any sense. Appellant had no clear recollection of what had happened, which was consistent with a dissociative episode.

During rebuttal argument in the sanity phase, defense counsel noted that appellant had been sober for 53 days when he went to Mary K. Shell Mental Health Center on November 4, 2016. He was sober but having mood swings, panic attacks, and racing thoughts. According to defense counsel, Chantix was the root cause of what had happened because appellant became violent with Sylvia about 65 days after his first Chantix prescription was filled. It exacerbated his mental disease or defect. Defense counsel reminded the jurors that Sylvia had hidden her gun two weeks before the incident because appellant’s behavior was different.

After hearing from appellant’s expert witnesses and the arguments from defense counsel, the jury returned a verdict against appellant, finding it not true that he was legally insane when he committed his crimes. This record overwhelmingly supports the jury’s finding.[19]

Sylvia testified that, sometime after he violently struck her head and knocked her to the ground, appellant said he did not intend to get arrested and they were not going to get out of there alive. At some point during this ordeal appellant hid her cell phone. Appellant’s act of hiding her cell phone and his statement about avoiding arrest overwhelmingly demonstrate that, at the time he was victimizing Sylvia, he knew he was committing crimes. It is readily apparent appellant knew his actions were legally or morally wrong, and he knew law enforcement would respond.

Moreover, appellant admitted at trial that he could remember drinking vodka during the day in question, including just after they came home from dropping off Sylvia’s friend, which occurred just before he attacked Sylvia. He remembered arguing with Sylvia, and reaching out to grab her hair. The following morning, he woke and saw that Sylvia was gone. He saw a lot of blood on the carpet and everything in shambles. He “knew that something bad had happened.” He became scared and he ran from the house. He told the jury that he did not turn himself into law enforcement because he was scared.

After appellant fled but before he was apprehended, he exchanged text messages with Sylvia. He agreed at trial it sounded “familiar” that, when he texted her, he wrote that he had told some of his family members that he had assaulted Sylvia. However, he then claimed at trial that he could not remember making such a text. He then admitted to the jurors that he had told some family members he had assaulted Sylvia.

As Musacco testified during the sanity phase, appellant’s flight shows that he knew his behavior had been wrong immediately after it had happened. Further, after fleeing, appellant spoke with Sylvia and expressed remorse. As Musacco opined, this further showed that appellant had understood right from wrong.

With detectives following his arrest, appellant admitted that he recalled having sex with Sylvia. He ejaculated on her, and used a napkin to clean it off. At trial, Sylvia confirmed appellant’s memory. She explained that, during the second rape in the morning, appellant ejaculated on her thigh and he cleaned it up with a tissue.

Appellant’s various statements, both before trial and while testifying, overwhelmingly suggest he was conscious during the commission of his crimes. His immediate flight is further evidence from which a reasonable inference may be drawn that he was conscious of what he had done. He purposefully beat, threatened, and raped Sylvia during one prolonged attack at night, only to again rape her early the next morning. His purposeful criminal conduct over an extended period of time overwhelmingly suggests he was aware of his actions. (See People v. Halvorsen (2007) 42 Cal.4th 379, 418 [the defendant’s complicated and purposeful conduct “in driving from place to place, aiming at his victims, and shooting them in vital areas of the body” suggests awareness of his actions and a lack of unconsciousness].)

Under any standard of review, any alleged instructional error was harmless at the sanity phase. The defense was able to argue that Chantix had exacerbated appellant’s prior mental disease or defect, and rendered appellant insane at the time of these crimes. The jury heard from appellant’s expert, Middleton, who opined that appellant was in a blackout when he committed these crimes. According to Middleton, appellant’s dissociative episode “made it impossible for him to consciously and rationally appreciate the wrongfulness at a moral or a legal level.” According to Middleton, appellant could have acted purposefully without being conscious of what he was doing. Likewise, appellant’s other expert, Haddock, opined that appellant had a brief psychotic disorder from mixing alcohol and drugs together. According to Haddock, appellant’s behavior during the incident was a result of alcohol mixed with Chantix and stress. Appellant did not understand right and wrong, or the nature or quality of his acts due to Chantix mixed with alcohol.

It is readily apparent from this record that the jury rejected the opinions rendered by the defense experts and concluded that appellant was capable of knowing or understanding the nature and quality of his act, or was capable of knowing or understanding that his act was morally or legally wrong. This record conclusively and overwhelmingly demonstrates that any presumed instructional error at the sanity phase was harmless under any standard of review. Appellant’s arguments to the contrary are without merit, and this claim fails.

IV. Cumulative Error did not Occur.

Appellant argues that reversal is required based on cumulative error. “Under the ‘cumulative error’ doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial.” (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) A claim of cumulative error is essentially a due process claim. (People v. Rivas (2013) 214 Cal.App.4th 1410, 1436.) The test is whether the defendant received a fair trial. (Ibid.)

We reject appellant’s claim of cumulative error because we have denied all of his individual claims. (People v. Bradford (1997) 14 Cal.4th 1005, 1057 [cumulative prejudice argument rejected because each individual contention lacked merit or did not result in prejudice].) After reviewing this entire record, we are satisfied that appellant received a fair adjudication.

V. The Conviction in Count 4 Must be Modified To Misdemeanor Assault.

The parties agree, as do we, that appellant’s felony conviction in count 4 must be modified to misdemeanor assault.

The jury returned two different guilty verdicts for the charge in count 4. One verdict found appellant guilty in count 4 of felony assault with a deadly weapon in violation of section 245, subdivision (a)(1). However, in the same count, the jury also returned a guilty verdict for misdemeanor assault in violation of section 240 as a lesser but necessarily included offense. The court’s record reflects that the felony conviction was recorded without mention of the misdemeanor conviction. The jury was not polled.

In count 4, the trial court sentenced appellant to a stayed midterm of three years following his conviction for felony assault with a deadly weapon in violation of section 245, subdivision (a)(1).

Respondent concedes that appellant’s sentence in count 4 must be modified to reflect the jury’s verdict of the lesser included offense. We agree. A defendant may not be convicted of both a greater and a lesser included offense. (People v. Moran (1970) 1 Cal.3d 755, 763.) A conviction on a lesser included offense is an implied acquittal of the greater offense. (People v. Scott (2000) 83 Cal.App.4th 784, 793.)

Because the jury found appellant guilty of the lesser included offense in count 4, we modify the conviction in count 4 to misdemeanor assault (§ 240). In light of the changed circumstances, we vacate appellant’s sentence and remand this matter for resentencing. (See People v. Buycks (2018) 5 Cal.5th 857, 893 [when part of a sentence is stricken on review, a full resentencing as to all counts is appropriate so the trial court can exercise its sentencing discretion in light of the changed circumstances].)

VI. Because Appellant will be Resentenced, We do not Resolve the Parties’ Dispute Regarding Section 654.

In count 5, the jury convicted appellant of making a criminal threat in violation of section 422. The trial court sentenced appellant in this count to a midterm of two years in prison, which was enhanced by one year because the jury found true that appellant had personally used a dangerous weapon (a knife) during the commission of this crime (§ 12022, subd. (b)(1)). The sentence in count 5 was ordered to run concurrently with the indeterminate term imposed in count 2 for one of the rape convictions.

When imposing this sentence, the trial court stated that a unanimity instruction had been given to the jurors, who could have found the criminal threat in count 5 “in a variety of different places throughout the acts involved in this case.” The court believed it was impossible to say that this criminal threat was not “part and parcel of some other act that was involved in this case,” so it decided a concurrent sentence, and not a consecutive sentence, was appropriate. The court did not address section 654 when it sentenced appellant in count 5.

Appellant argues that the trial court erred. According to appellant, his criminal threat was incidental to, and therefore part of, his continuing assault, torture, and/or attempted murder of Sylvia. He contends he held a single objective of wanting her to die and/or suffer. He asserts the court should have stayed the sentence in count 5.[20] In contrast, respondent contends that sentencing error did not occur.

We have already determined that resentencing is required. As such, we decline to resolve this dispute at this juncture. Instead, we direct the trial court to state at resentencing whether or not any imposed sentence in count 5 should be stayed pursuant to section 654. We take no position on how the court should exercise its sentencing discretion.

VII. Clerical Errors Must Be Corrected in the Determinate Abstract of Judgment.

Based on our independent review of the record we have discovered clerical errors appearing in the determinate abstract of judgment. (See People v. Mitchell (2001) 26 Cal.4th 181, 185 [appellate court may correct clerical errors appearing in an abstract of judgment].) Appellant’s middle name is misspelled. In addition, the conviction in count 1 is erroneously listed under section 667 instead of section 664. We direct the trial court to correct these clerical errors following resentencing.

DISPOSITION

The felony conviction in count 4 is modified to misdemeanor assault (§ 240). Appellant’s sentence is vacated and this matter is remanded for resentencing. At resentencing, the trial court shall state whether or not it intends to stay imposition of sentence in count 5 pursuant to section 654 and, if so, to state the basis for its decision. Following resentencing, the trial court shall provide amended abstracts of judgment to the appropriate authorities, and the court shall ensure that the clerical mistakes appearing in the determinate abstract of judgment are corrected. In all other respects, appellant’s judgment as modified is affirmed.

LEVY, Acting P. J.

WE CONCUR:

DETJEN, J.

SNAUFFER, J.

[1] As we explain in greater detail later in this opinion, the jury returned two guilty verdicts in count 4, one for the greater offense and one for the lesser included offense. It appears that the trial court did not recognize that two guilty verdicts were returned in this count.

[2] On the night in question, appellant and Sylvia left their residence together and gave a ride to one of Sylvia’s male friends, who had called her at home around 8:40 p.m. Appellant drove and he seemed normal. During the ride, the friend had complained about his girlfriend. Appellant handed a pocketknife to the friend and told him to “kill the bitch.” Sylvia made her friend give back the knife to appellant.

[3] Sylvia testified that, during the attack the night before, appellant took her cell phone from her and she did not have a landline in the residence. When appellant fell asleep after raping her the second time, Sylvia was unable to find her cell phone.

[4] Sylvia and appellant also spoke together in a phone call before he was arrested. The conversation was secretly recorded by law enforcement, and it was played for the jury.

[5] Appellant used the GPS in Sylvia’s cell phone to track her movements and, on one occasion, he spied her with a man in a parked car, which made him angry.

[6] Treuting believed that a majority of people imbibe some alcohol while taking prescription medications. However, Treuting also believed that most people moderate their alcohol intake when taking prescription medications.

[7] Appellant was a journeyman electrician. He told the jury he was having trouble concentrating.

[8] While appellant was in custody following his arrest and prior to this trial, a psychiatrist met with him in jail. The psychiatrist diagnosed appellant with “adjustment disorder with mixed anxiety and depression, with rule out of substance induced mood disorder; rule out depressant disorder, unspecified; and alcohol use disorder in early remission, in controlled environment.” The psychiatrist saw appellant about six months after the criminal incident with Sylvia.

[9] All future statutory references are to the Penal Code unless otherwise noted.

[10] The sentences on the remaining counts were stayed.

[11] For murder, malice may be express or implied. “Malice is express when the killer harbors a deliberate intent to unlawfully take away a human life. Malice is implied when the killer lacks an intent to kill but acts with conscious disregard for life, knowing such conduct endangers the life of another.” (People v. Lasko (2000) 23 Cal.4th 101, 104.)

[12] Middleton told the jury that a blackout is an “amnestic or dissociative phenomena” where the conscious mind is suspended and the individual continues to function. Such a person may not be aware of right or wrong.

[13] The record suggests that, sometime in the 1990’s, appellant had been hospitalized at a psychiatric hospital following his prior suicide attempts.

[14] The BENCH NOTES to CALCRIM No. 3427 state a trial court “has no sua sponte duty to instruct on involuntary intoxication, unless the intoxication results in unconsciousness. [Citation.] If the defendant is relying on the defense of unconsciousness caused by involuntary intoxication, see CALCRIM No. 3425, Unconsciousness.”

[15] The court misspoke and stated that these special allegations applied to counts 2 and 6, when these special allegations were asserted in counts 2 and 7. The verdicts in counts 2 and 7 correctly showed these special allegations.

[16] Sylvia told the jury that, in the summer of 2016, she found appellant sitting alone in the dark garage when he should have been at work. After that incident, she noticed he was acting “strangely.” He was not working, he was drinking a lot more, and “he always acted strangely when he drank.” Sylvia told the jury that, about two weeks before the incident on December 9, 2016, she hid her gun because appellant had been acting strangely.

[17] Sylvia agreed at trial that, on the day of the assault, appellant had made statements that appeared nonsensical or illogical. She testified that, during the assault, he alternated between displaying anger and showing no emotion. She said he acted “focused” and “determined.” He was like “a zombie” and “a robot.”

[18] Before the second rape had occurred, Sylvia had asked appellant to feed her four cats.

[19] When a defendant pleads both not guilty and not guilty by reason of insanity, the trial is bifurcated, but that bifurcation is only to keep the issues of guilt and sanity distinct; for other purposes, the trial is considered single and continuing. (People v. Elmore (2014) 59 Cal.4th 121, 141.) Thus, we will examine the entire trial record when addressing the issue of appellant’s sanity.

[20] “ ‘In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct.’ ” (People v. Sloan (2007) 42 Cal.4th 110, 116.)