Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 05CF1959, Carla M. Singer, Judge.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RYLAARSDAM, J.
While under the influence of marijuana, defendant George William Carter II drove his automobile inside a parking structure in such a fashion as to pin the victim between his vehicle and another, resulting in her death. (We relate other relevant facts in our discussion.) A jury convicted him of gross vehicular manslaughter while intoxicated. (Pen. Code, § 191.5, subd. (a); all further statutory references are to this code except as otherwise stated.) He pleaded not guilty by reason of insanity but the jury found him to have been sane when he committed the offense. In a trifurcated trial, the court found he had previously committed three “strike” offenses. (§§ 667, subds. (d), (e)(2)(A), 1170.12, subds. (b), (c)(2)(A).) The court imposed a third strike term of 25 years to life on the § 191.5, subdivision (a) conviction and a 5-year determinate term for the prior serious felony enhancement, resulting in a state prison sentence of 30 years to life. The court also granted presentence credit and imposed a restitution fine and victim restitution.
Defendant raises four issues in his appeal: (1) the evidence defendant was insane is “of such weight and character that the jury could not reasonably reject it” (capitalization omitted); (2) CALCRIM No. 3450 (Insanity) is incomplete; (3) the court abused its discretion in failing to dismiss a prior “strike”; and (4) the sentence imposed is cruel and unusual. We reviewed the evidence and considered defendant’s legal challenges and disagree with each of his contentions. We therefore affirm the judgment.
DISCUSSION
1. There was substantial evidence to support the jury’s finding defendant was not insane.
a. Standard of Review
Defendant quotes from People v. Drew (1978) 22 Cal.3d 333 (Drew), overruled on an another ground by statute as set out in People v. Skinner (1985) 39 Cal.3d 765, 769, to the effect that, with regard to a sanity verdict, the issue is “whether the evidence contrary to [the jury’s] finding is of such weight and character that the jury could not reasonably reject it.” (Id. at p. 351.) Thus defendant suggests that we are to employ a standard of review other than substantial evidence and, contrary to normal appellate practice, engage in a weighing process. We decline to do so. In Drew our Supreme Court rejected the M’Naghten test for legal insanity and adopted a test proposed by the American Law Institute. (Id. at p. 336.) In 1982, a version of the M’Naghten test was reinstated with the adoption of Proposition 8. (§ 25, subd. (b).)
The quoted statement in Drew was made in a case where two experts both testified that, at the time of the crime, the defendant was unable to appreciate the difference between right and wrong and the prosecution offered no evidence as to sanity. (Drew, supra, 22 Cal.3d at pp. 338-339.) We read the quoted statement in light of the holding overruling the standard under which the defendant was tried and in light of the absence of conflicting evidence of the defendant’s sanity; we do not interpret the quoted statement as changing the standard of review as being anything other than the substantial evidence standard. Drew itself confirms this. The court quoted from People v. Wolff (1964) 61 Cal.2d 795, 804, overruled on another ground by statute as set out in People v. Bloom (1989) 48 Cal.3d 1194, 1211, in stating “‘our inquiry on this just as on other factual issues is necessarily limited at the appellate level to a determination whether there is substantial evidence in the record to support the jury’s verdict of sanity . . . .’” (Drew, supra, 22 Cal.3d at p. 350.)
b. The Test for Insanity
Section 25, subdivision (b) provides, “In any criminal proceeding, . . . in which a plea of not guilty by reason of insanity is entered, this defense shall be found by the trier of fact only when the accused person proves by a preponderance of the evidence that he or she was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the offense.” People v. Skinner, supra, 39 Cal.3d at p. 777, holds that the conjunctive between “her act” and “of distinguishing” should be read as the disjunctive “or.”
Evidence Code section 522 provides that a “party claiming that any person, including himself, is or was insane has the burden of proof on that issue.”
c. The Evidence Relating to Defendant’s Sanity or Insanity
There was a great deal of evidence of defendant’s aberrant statements and behavior, both immediately before and well after the commission of the crime. This evidence, which we need not detail here, but some of which we will refer to in our discussion of the expert testimony, could demonstrate mental illness, the effect of narcotic use, feigned symptoms of insanity, or some of each at various times. We need not determine whether, standing alone, this behavior constitutes substantial evidence either of sanity or insanity.
Two court-appointed psychologists reached contrary conclusions as to defendant’s sanity at the time he committed the crime. Richard Lettieri, a clinical and forensic psychologist and psychoanalyst, testified for the defense. He had reviewed a substantial number of reports of defendant’s interviews as well as police reports. He also interviewed defendant and a number of persons acquainted with him. The documents and interviews attributed statements to defendant such as asking “are you ready for the end of the world,” and that he was “the savior of the universe,” that “God had personally contacted him,” and “that he was God himself.” Lettieri also considered reports of bizarre behavior, such as defendant reportedly pulling out one of his teeth while in jail and masturbating in court.
Lettieri told the jury about his interview with defendant, who had told him, among other religious revelations, that “he heard the voice of God, that God told him that he had to do great things.” He related that defendant was “very unstable in his mood, and he was preoccupied with that throughout that weekend,” i.e., the weekend when the crime was committed.
Lettieri also administered a series of psychological tests. He expressed the opinion “that at the time of the offense . . . [defendant] had a psychotic break. . . [but t]here was no evidence that he suffered from a major mental illness like schizophrenia or bipolar disorder, even though he was psychotic on that weekend. So I diagnosed him with brief psychotic episode.” He added that his diagnosis also included “mania, because of the manic-like symptoms that he had” and stated that defendant was hallucinating. Lettieri expressed the opinion that, at the time of the crime, defendant “was insane.”
Dr. Veronica Thomas, a psychologist, was called by the prosecution. She also reviewed a substantial number interview transcripts and reports before meeting with defendant. She then spent about seven hours with defendant, talking with him and administering tests. She stated that her diagnosis was that defendant suffered from a personality disorder “including passive/aggressive and narcissistic features.” But such a disorder “doesn’t necessarily represent an inability to function or a break with reality, for example, or a failure to understand one’s behavior.” Dr. Thomas also concluded that defendant suffered from a cannabis abuse problem. She had considered but ruled out defendant having suffered a brief psychotic disorder. Generally someone with this disorder demonstrates characteristics, which she described, not present in defendant. She did not believe that, at the time of the crime, defendant suffered from a mental illness or disease.
Based on her conversations with defendant, Thomas described defendant’s state of mind at the time he committed the crime as being “enormously overwhelmed” by his behavior, which had resulted, among other things, from financial issues and having to go to court the next day. She added “[h]e had smoked some marijuana and he was feeling completely overwhelmed. He’d probably never felt so helpless in many years.” She considered that immediately before the commission of the crime, defendant’s girlfriend ran out of the house because he was acting strange; defendant chased her although he was naked and then returned to put his pants on and get his car keys to look for her. She opined that he was legally sane at the time. Part of Thomas’s conclusion that defendant knew and could appreciate what he had done was based on his statement to the first person who arrived on the scene, “oh, shit, oh, shit, the cops are going to come. I’ve really done it this time.”
Our task is simply to decide whether Thomas’s testimony supplied substantial evidence that defendant was not insane at the time he drove his automobile with fatal results. We may not weigh the evidence provided by the two experts. Nor may we second-guess whether, based upon the evidence of defendant’s bizarre statements and conduct, we would have reached one conclusion or another. Thomas’s testimony furnishes substantial evidence supporting the verdict. Even employing the standard urged upon us by defendant, we cannot conclude that the evidence contradicting Thomas’s testimony “is of such weight and character that the jury could not reasonably reject it.”
2. The court properly instructed the jury on the issue of insanity.
a. The Language of the CALCRIM 3450
The court instructed the jury in the language of CALCRIM No. 3450. As edited by the court, the instruction given reads:
“You have found the defendant guilty of [g]ross [v]ehicular [m]anslaughter while [i]ntoxicated. Now you must decide whether he was legally insane when he committed the crime.
“The defendant must prove that it is more likely than not that he was legally insane when he committed the crime.
“The defendant was legally insane if:
“1. When he committed the crime, he had a mental disease or defect AND
“2. Because of that disease or defect, he did not know or understand the nature and quality of his act or did not know or understand that his act was morally or legally wrong.
“None of the following qualify as a mental disease or defect for purposes of an insanity defense: personality disorder, adjustment disorder, seizure disorder, or an abnormality of personality or character made apparent only by a series of criminal or antisocial acts.
“If the defendant suffered from a settled mental disease or defect caused by the long-term use of drugs or intoxicants, that settled mental disease or defect combined with another mental disease or defect may qualify as legal insanity. A settled mental disease or defect is one that remains after the effect of the drugs or intoxicants has worn off.
“You may consider any evidence that the defendant had a mental disease or defect before the commission of the crime. If you are satisfied that he had a mental disease or defect before he committed the crime, you may conclude that he suffered from that same condition when he committed the crime. You must still decide whether that mental disease or defect constitutes legal sanity.
“If you find the defendant was legally insane at the time of his crime, he will not be released from custody until a court finds he qualifies for release under California law. Until that time he will remain in a mental hospital or outpatient treatment program, if appropriate. He may not generally, be kept in a mental hospital or outpatient program longer than the maximum sentence available for his crime. If the state requests additional confinement beyond the maximum sentence, the defendant will be entitled to a new sanity trial before a new jury. Your job is only to decide whether the defendant was legally sane or insane at the time of the crime. You must not speculate as whether he is currently sane or may be found sane in the future. You must not let any consideration about where the defendant may be confined, or for how long, affect your decision in any way.
“If you conclude that the defendant was legally sane at the time he committed the crime, then it is no defense that he committed the crime as a result of an uncontrollable or irresistible impulse.
“In reaching your decision, consider all of the evidence from the entire trial. If, after considering all the evidence, all twelve of you conclude the defendant has proved that it is more likely than not that he was legally insane when he committed the crime, you must return a verdict of not guilty by reason of insanity.”
b. Proper Instruction
One of defendant’s concerns with the CALCRIM instruction is that it is not identical to the earlier CALJIC instructions dealing with insanity. But we need not compare the two types of instructions as long as the instruction given adequately and fairly apprised the jury of its task. (People v. Ibarra (2007) 156 Cal.App.4th 1174, 1188.)
Defendant’s first attack on the instruction is that it fails to tell the jurors that evidence of his mental state after the commission of the crime could be considered in deciding the sanity issue. But the court instructed: “In reaching your decision, consider all of the evidence from the entire trial.” This necessarily included all of the evidence that might bear on defendant’s sanity. Defendant’s argument seems to be that the instruction is unclear in that the court failed to add to the quoted phrase something like, “including evidence of his mental state after the commission of the crime.” But “[a] party may not argue on appeal that an instruction correct in law was too general or incomplete, and thus needed clarification, without first requesting such clarification at trial. [Citation.]” (People v. Hillhouse (2002) 27 Cal.4th 469, 503)
The Attorney General argues any error was harmless because during closing argument “[b]oth parties were permitted to, and did, argue the import of [defendant’s] behavior both before and after the offense.” Unfortunately, the Attorney General did not deem it necessary to present us with a record reference supporting this statement. But defendant does not contradict it and our own review of the record supports it. Were we to engage in a harmless error review on this issue, this fact would support a conclusion that any error would be harmless.
Defendant next argues that CALCRIM is defective because it does not include temporary insanity. Citing a number of cases, defendant correctly states that “temporary insanity, as well as permanent insanity, constitutes a defense to a crime.” (People v. Kelly (1973) 10 Cal.3d 565, 576; People v. Ford (1902) 138 Cal. 140, 141-142.) There is nothing in the instruction that limits the defense to permanent insanity; the language is “defendant must prove that it is more likely than not that he was legally insane when he committed the crime.” (CALCRIM No. 3450, italics added.) Defendant fails to explain why this suggests that the insanity must be permanent.
3. The trial court did not abuse its discretion in failing to strike prior convictions.
As defendant acknowledges, a trial court’s refusal to strike a prior strike conviction is subject to review under a deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 374.) As our Supreme Court noted, ‘“[w]here the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court’s ruling, even if we might have ruled differently in the first instance.’ [Citation.]” (Id. at p. 378.)
Defendant had three prior strikes. In addition, he sustained two non-strike felony convictions in Utah. All five of these felonies occurred in 1989 and defendant alleges all were related. The three Orange County convictions were for three separate burglaries. One of the Utah convictions was for vehicle theft. Even though not convicted, defendant also told police officers he had broken into about 50 cars and stolen stereos and other items of value.
Although there was no record of further felony convictions, defendant had continued to use marijuana, passed a stolen check, engaged in exhibitions of speed, had his driver’s license suspended several times, and, during the two year period preceding the present offense, received seven traffic citations for which he failed to appear. Considering this history of anti-social behavior, we cannot say that the trial court abused its discretion in refusing to strike his prior felony convictions.
4. The sentence was not cruel and unusual punishment.
Defendant also argues that his 30-years-to-life sentence constituted cruel and unusual punishment in violation of his rights under the United States and California Constitutions. We disagree.
The Eighth Amendment to the United States Constitution applies to the states by virtue of the Fourteenth Amendment (Ewing v. California (2003) 538 U.S. 11, 20 [123 S.Ct. 1179, 155 L.Ed.2d 108]) and “contains a ‘narrow proportionality principle’ that ‘applies to noncapital sentences.’ [Citation.]” (Ibid.) “A punishment violates the Eighth Amendment if it involves the ‘unnecessary and wanton infliction of pain’ or if it is ‘grossly out of proportion to the severity of the crime.’ [Citation.]” (People v. Retanan (2007) 154 Cal.App.4th 1219, 1230-1231.) As the Attorney General points out, the United States Supreme Court noted that this principle is “applicable only in the ‘exceedingly rare’ and ‘extreme’ case. [Citations.]” (Lockyer v. Andrade (2003) 538 U.S. 63, 73 [123 S.Ct. 1166, 155 L.Ed.2d 144].)
In deciding whether the sentence constitutes cruel and unusual punishment, we normally are to consider “[t]hree objective factors,” “‘(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.’ [Citation.]” (People v. Carmony (2005) 127 Cal.App.4th 1066, 1076.) Essentially the same factors are normally to be considered in determining whether the sentence violates the California Constitution. (In re Lynch (1972) 8 Cal.3d 410, 424-427.) But the analysis does not apply to sentences imposed under the three strikes statute. (People v. Cline (1998) 60 Cal.App.4th 1327, 1338 [“this step is inapposite to three strikes sentencing because it is a defendant’s ‘recidivism in combination with his current crimes that places him under the three strikes law’”].)
The sentence is harsh. Nevertheless, we cannot conclude that it is cruel and unusual. Earlier we noted defendant’s anti-social behavior. Defendant makes much of the fact that his conviction is based upon reckless rather than intentional wrongdoing. But his driving after becoming intoxicated on marijuana resulted in the horrible death of an innocent bystander. He may not have intended to kill but he intended to drive while incapacitated.
DISPOSITION
The judgment is affirmed.
WE CONCUR: SILLS, P. J., IKOLA, J.