Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC303972
RUSHING, P.J.
STATEMENT OF THE CASE
A jury convicted defendant James Matthew Wood of attempted murder, first degree burglary, and aggravated mayhem. (Pen. Code, §§ 664, 187, 459-460, subd. (a), 205.) Concerning the attempted murder, the jury found that he acted with premeditation and also found true enhancement allegations that he personally used a deadly weapon and inflicted great bodily injury on a person at least 70 years old. (§§ 12022, subd. (b)(1), 12022.7, subd. (c).) Concerning the burglary, the jury found true allegations that defendant personally used a deadly weapon and that the victim was at least 65 years old. (§ 667.9, subd. (a).) The jury also found that defendant had a prior strike conviction. (§§ 667, subds. (b)-(i), 1170.12.)
Defendant was also charged with torture, but the jury deadlocked, and the court declared a mistrial.
At sentencing, the court imposed a total term of 14 years to life plus a consecutive 20 years.
On appeal from the judgment, defendant claims the trial court erred in failing to conduct a competency hearing during trial and refusing to give pinpoint instructions concerning aggravated mayhem. He also claims there was insufficient evidence to support a conviction for aggravated mayhem or a finding of premeditation.
We uphold defendant’s convictions for attempted murder and burglary. However, we agree that the court committed prejudicial error in failing to give one pinpoint instruction concerning aggravated mayhem. Thus, defendant’s conviction for that offense cannot stand. Accordingly, we reverse the judgment and remand for further proceedings.
FACTS
On the morning of February 6, 2003, Geraldine Silva, aged 79, opened the blinds of her home on Old Calaveras Road in Milpitas and saw a man, whom she identified as defendant, coming toward her house holding a knife in the air. He was expressionless and showed no emotion, like a “zombie.” When she saw him heading to the back of her house, she called 911. Suddenly she saw him in the house and screamed.
Silva could not remember the attack. However, she suffered a defensive cut that severed the tendons on her hand. Defendant slashed her face several times, stabbed her in the shoulder and chest, and then struck her with a hammer in the eye and cheek. Silva lost her eye, and her cheekbone was crushed. Her face is now partially paralyzed, and she cannot close two fingers on her hand.
The hammer had been in the house before the attack, and defendant took it when he left.
Police officers and sheriff’s deputies arrived within minutes of Silva’s call and found defendant hiding in a creek bed a quarter mile from the house. He had blood on his hands, shoes, and pants. Near him, police found a hammer with Silva’s blood on it. At the house, police found a window open and a slashed window screen on the ground. They also found a knife handle and the blade that had broken off. Defendant had taken the knife from his aunt’s home a few days before.
Defense counsel stipulated that the blood on defendant’s pants was that of Sonjia Crowder, and the blood on his shoes was Silva’s.
During an interview with the police, defendant falsely identified himself as Jerome Smith and denied having anything to do with the attack. He said he had smoked some crack cocaine the night before and then slept in the creek bed. He said that the hammer was already there when he arrived. He explained that he had been bloodied in a fight in downtown San Jose the night before.
The interview was videotaped, and the tape and a transcript were admitted into evidence.
At trial, defense counsel stipulated that defendant’s blood tested negative for alcohol and drugs.
Sonjia Crowder, who had been defendant’s girlfriend from 1999-2000, testified that on February 3, 2003, she picked up defendant and brought him home. He seemed normal, and they had dinner. At one point, he went into the bathroom. When he came out, he stabbed her in the head, face, and neck with a scissors and knife and then beat her with a fire extinguisher. He took her money and car and left. According to Crowder, defendant did not seem crazy; she felt he simply wanted to rob her. Later, when defendant was at Atascadero State Hospital (ASH), Crowder spoke to him. He told her that he was pretending to be crazy by saying that Janet Jackson owed him a lot of money. He explained that he had to do so because he was facing a long sentence.
The Defense
Jacqueline Brock, defendant’s aunt, testified that although defendant was normal as a boy, he changed in his 20’s, becoming quiet, withdrawn, and strange. She thought he needed psychiatric help but felt too uncomfortable to suggest it.
James Wood, Sr., defendant’s grandfather, testified that he had not seen defendant since his arrest. However, defendant sent him some bizarre and illogical letters about hidden guns and money and children he had allegedly fathered. Wood thought defendant was mentally unbalanced and posed a danger to others if released.
Anna Harrison, defendant’s mother, testified that as a youth, defendant had threatened her and his stepfather with a weapon. Although she had not seen him since he was 17, his communications with her were bizarre. He believed that she was dating Johnny Cochran. He told her that he had fathered children with Janet Jackson. He said his girlfriend in Denver had hidden a lot of money for him. And he claimed that he had girlfriends in other cities. She found him “scary” and thought he had a serious problem with women and needed psychiatric treatment.
Tomara Jackson, defendant’s aunt, testified that defendant had lived with her and her husband Joseph from time to time. In February 2003, defendant visited her. He said someone was after him, and he asked for a gun. A couple of days later, defendant came by and again said someone was after him. He left, taking a large knife with him.
Anthony Cozzolino, M.D., chief outpatient psychiatrist at Santa Clara Valley Medical Center in San Jose, testified as an expert in forensic psychology. He reviewed defendant’s mental health records from the Department of Corrections, ASH, and county jail as well as documents related to the current prosecution. Based on defendant’s disorganized behavior and speech and symptoms, including paranoid, persecutory, and grandiose delusions, Doctor Cozzolino opined that defendant was schizophrenic and had been since 1999.
Doctor Cozzolino noted that before the current offense, defendant had told a psychiatrist at San Quentin that his mother was crazy, practiced witchcraft, and worshiped the devil and that drugs had been planted in his room. After his arrest, defendant told jail authorities that he was a college graduate and had attended UCLA, San Jose State University, and San Jose City College. He also said that he was born in Egypt, his mother was living in Israel, and he had fathered children all over the world. At that time, he was diagnosed with a psychotic disorder and found to have poor insight, judgment, and impulse control.
In November 2003, a court-appointed psychologist reported that defendant exhibited “psychotic demeanor, with confabulations, circumstantiality . . . .” He was “clearly paranoid” and “highly delusional and hallucinatory.” He was diagnosed with “paranoid schizophrenia with consideration of a substance abuse disorder and a possibility of malingering, as well . . . .”
At ASH in January 2004, defendant was diagnosed with grandiose delusions, a psychotic disorder, and severe delusions and hallucinations. Defendant’s records indicated that he had stopped taking medication and become more manic and paranoid and had failed competency tests. He was discharged in April but returned in September and again refused to take medication. He continued to claim that he was born in Egypt and had degrees in law and computers and that his mother was Egyptian. He was diagnosed with paranoid schizophrenia.
Doctor Cozzolino viewed the videotape of defendant’s interview with the police and observed negative symptoms of schizophrenia, including a lack of willful movement, monotonous speech, and a withdrawn appearance. He explained that schizophrenia can impair the ability to think and result in a lack of insight into one’s condition, which he found evidence of in this case. He noted that when defendant was sent to ASH for competency treatment and had taken his medication, his competency had been restored. Doctor Cozzolino did not believe that defendant was malingering because (1) he had said a number of times that if convicted, he did not want to go to the “crazy house”; (2) his symptoms had been consistent over time; and (3) his symptoms were not exaggerated, as is common with malingerers.
Doctor Cozzolino also concluded that defendant had an antisocial personality disorder based, in that he disregarded the rights of others and failed to conform to social norms; and he was irritable and aggressive, deceitful, irresponsible, impulsive, and remorseless.
Doctor Cozzolino interviewed defendant twice, the last time on June 8, 2005, just before trial. Both times, defendant was able to communicate; and at the latter interview, defendant’s demeanor was improved, he seemed more cooperative and less irritable and angry, and his answers to questions seemed logical. He noted that medication had been prescribed, and it appeared that defendant was taking it. Although defendant still exhibited some symptoms of paranoia, Doctor Cozzolino agreed with the conclusion reached in a February 5, 2005, by a court appointed psychologist that despite a significant mental disorder, defendant was competent for trial.
Based on his review of the police reports, Doctor Cozzolino opined that defendant intended to kill Silva when he attacked her.
Defendant testified. He admitted being on Old Calaveras Road when the attack occurred but denied entering Silva’s house or having ever seen her before. He also denied having a knife, seeing a hammer, or having blood on him. He explained that he had been staying with Tomara Jackson but got locked out of her house that day. He was in the area of Silva’s house smoking some crack. When police stopped him, he hid it. He said he gave police a false name because he was on parole and wanted to avoid another parole violation.
FAILURE TO CONDUCT A NEW COMPETENCY HEARING
Defendant contends that the court erred in failing to suspend the trial and conduct a competency hearing.
Background
On April 14, 2003, defendant’s attorney declared a doubt concerning defendant’s competency. The court suspended proceedings and appointed a psychologist to evaluate him. Because defendant initially refused to cooperate, the court reinstated proceedings, finding that defendant was malingering.
Thereafter, the psychologist filed a report. He opined that defendant was a chronic liar, who knew the difference between the truth and a lie and right and wrong, and who could understand the nature of the proceedings. However, he considered defendant incapable of assisting counsel in a rational manner. He noted that defendant denied the assault, claimed he was not mentally ill, and said he was born in Egypt and spoke Arabic.
In August 2003, counsel again declared a doubt, and the court suspended the proceedings and appointed a psychiatrist and psychologist to evaluate defendant. In September, the psychiatrist filed a report. The psychiatrist reported that defendant was cooperative during the interview. He understood that he needed an attorney. He wanted to plead not guilty and have a jury trial but complained that counsel was causing delays. He denied being involved in the incident. He said that he was from Egypt and his mother was in Israel. He denied being married but said he had children in Egypt, Israel, Ethiopia, and the United States. He admitted using drugs but denied having a drug problem. He said he was college educated.
Defendant also complained that ASH had forced him to take medication. He said he did not need it and indicated that he would refuse to take it in jail.
The psychiatrist observed that although defendant was paranoid, somewhat defensive, easily insulted, and at times irritable, he appeared to have control. He opined that defendant had an unspecified mental disorder, which did not impair his cognitive function. He concluded that defendant could understand the proceedings and rationally assist defense counsel.
In October 2003, the psychologist filed his report. He noted that despite his time at ASH, defendant denied any history of psychiatric treatment. Defendant’s thoughts were grossly disorganized, he did not know the month, and he gave a false Arabic name. His attention and concentration were impaired, and he did not maintain eye contact, saying it was disrespectful. He denied hallucinations but appeared internally preoccupied, whispering or singing to himself and laughing for no apparent reason, and he often asked to have questions repeated. His speech was labored, and certain innocuous questions enraged him. He had delusions about being from Egypt. He spoke about his experiences in Africa, referred to Africans in racist terms, and said he had only recently come to the United States. He also claimed to have attended college at UCLA and San Jose State University and San Jose City College.
The psychologist opined that defendant had a severe mental disorder manifested by symptoms of psychosis, thought disorganization, delusions, agitation, and mania. He noted that defendant was internally preoccupied, could not accurately describe the functions of courtroom participants, did not understand the chances of being found guilty, did not know what he would do as a witness, and had claimed he was arrested only because he is black. The psychologist concluded that defendant could not understand the nature of the proceedings or assist counsel in a rational manner.
After receiving this report, the court appointed a third psychologist. He reported that defendant could not give a coherent social history or accurate age, said he had attended various colleges, and claimed he was from Africa and was not married but had children. Defendant said he had taken medication at ASH but claimed it was not necessary and said he would refuse medication in jail.
The psychologist observed that defendant was unkempt and disheveled, depressed and preoccupied, sensitive, and easily offended. He also glowered and was slightly intimidating. Defendant was oriented as to time and place and spoke with appropriate phrasing. He was also histrionic. He sometimes slurred and whispered, seemed internally preoccupied, and perseverated about his linkage to Egypt and his health. Defendant remained focused until there was a pause in conversation, and then he lost attention. He whined; he was emotional; he was sarcastic, sardonic, and accusatory; and he felt victimized and persecuted.
The psychologist opined that despite a mental disorder, defendant knew that he was at a psychiatric facility to regain his competence and understood the charges against him. However, defendant denied involvement and did not show a coherent understanding of the trial process or know who would be in the courtroom and what their functions would be, including his own. He was also unable to address the overwhelming evidence of guilt. Accordingly, the psychologist concluded that defendant’s psychosis prevented him from competently understanding the nature of the proceedings or rationally cooperating with defense counsel.
In November, the court found defendant to be incompetent and committed him to the Department of Mental Health for participation in a competency treatment program for up to three years.
In April 2004, the staff at ASH concluded that with medication, defendant had regained competency. One staff psychologist reported that defendant initially had failed three competency assessments. During the first assessment he stared blankly and was intimidating, unmotivated, and showed no insight into the charges, his legal problems or mental health, or courtroom procedures. During the second assessment, he was unmotivated, disrespectful, irritable, and vulgar. He did not pay attention, denied psychotic symptoms, complained of being forced to take medication, and said he would refuse to take them. He showed no insight into his legal difficulties and did not care about his potential sentence. During the third assessment, he was more motivated, cooperative, oriented, and alert. However, he continued to deny psychotic symptoms, had difficulty paying attention, and showed little insight into his mental illness, saying he had been forced to take medication. He also reported delusional thoughts about being from Africa and became irritable and hostile. He still did not appreciate the charges against him or the potential penalties he faced.
During a fourth assessment, defendant was much more motivated, cooperative, oriented, and alert. Although he had little insight into his mental illness, he could describe what paranoia, delusions, and hallucinations were. He appeared to understand the charges and demonstrated some ability to cooperate with counsel. Defendant also passed a mock trial competency hearing.
In sum, the staff at ASH found that although defendant denied having a mental illness and needing medication, he had passed a competence assessment and understood that it was important to take his medication. He demonstrated understanding of the charges, the police report, and the pleas available to him. Although he minimized the evidence against him, he said he would speak to his attorney. Accordingly, he was deemed competent. However, staff advised that defendant needed to remain on medication to maintain his competency and warned that if he refused, he would quickly relapse. In April, defendant was returned to the court.
In June 2004, the court appointed a psychiatrist to reevaluate defendant status. The psychiatrist found that defendant understood the charges, the possible penalties, and the functions of judge, jury, prosecutor, and public defender. However, defendant said he thought his attorney was a transvestite and was collaborating with the court to send him to the mental hospital. He could not explain the evidence against him but claimed innocence. He said he could not trust white people because they were Satanists. He denied having a mental illness and said he would refuse to take medication in jail. He claimed he was born in Cairo but could not remember details about his past or the names of his parents or his education.
The psychiatrist concluded that although defendant was able to understand the charges, nature of the proceedings, and potential consequences if found guilty, his suspicions toward the court and paranoid delusions affected his ability to interact with others. Moreover, his lack of insight into his psychiatric condition and his inability to tolerate contradiction from others made it difficult for him to share the type of information that could assist his defense. According, the psychiatrist concluded that defendant was unable to assist counsel.
In August 2004, the court concluded that defendant’s competency had not been restored.
In November 2004, a staff psychiatrist at ASH reported that defendant had started taking his medication again and had quickly regained competency and passed competency tests. Given defendant’s prior history, the psychiatrist predicted that defendant would take his medication at ASH but then refuse to do so in jail and as a result decompensate and become incompetent. At the time, however, defendant was oriented and cognitive, and his thoughts were focused and not disorganized, although at times they were illogical. He denied having hallucinations, delusions, or any mental illness. He distrusted his attorney, who kept sending him to ASH. And he continued to say that he had been born in Cairo, where his mother and family live. Nevertheless, the psychiatrist concluded that defendant had regained competency. He recommended that jail staff make sure defendant took his medication, warning that if he did not do so, he would quickly relapse.
In December 2004, the court reinstated criminal proceedings, and defendant pleaded not guilty. In January 2005, defense counsel informed the court that defendant had rejected his advice to plead not guilty by reason of insanity. Defendant confirmed that he had rejected that advice.
On January 28, 2005, defense counsel declared a doubt as to defendant’s competency. In February, the court appointed a psychologist. The psychologist later reported that defendant understood the charges, the nature of proceedings, and the possible consequences of a guilty verdict. Nevertheless, defendant denied the evidence and charges against him and claimed he had never seen the victim before. He remembered his last court appearance but could not remember his attorney’s name. He complained that counsel had initiated the competency issue and was always trying to have him hospitalized. He said he was frustrated and wanted to get the case over.
Concerning defendant’s ability to cooperate with counsel in a rational way, the psychologist explained that defendant suffered from a psychotic disorder manifested by paranoid delusions, which would affect his interactions with the court. Although defendant denied having a mental disorder, he was taking his medication to avoid having to go back to ASH. Defendant presented his thoughts logically and clearly without disorganization, and his responses to questions had been concrete. Thus, the psychologist did not find that defendant’s psychosis would affect his ability to understand the proceedings and cooperate with counsel. Although defendant was apprehensive, he did not exhibit signs of irritation, defensiveness, or anger. The psychologist concluded that defendant was competent and could assist counsel.
The court appointed a second psychologist, who filed a report in March 2005. Defendant continued to claim that he was born in Egypt and deny that he had mental illness. However, the psychologist concluded that he was still competent. Defendant was coherent and oriented. He was able to maintain his concentration. He denied having intrusive or disturbing thoughts. He knew he had been sent to ASH, and he agreed to take medication to avoid returning to ASH. He said that he had adjusted to being in jail, where was he treated fairly, ate well, and watched movies.
The psychologist reported that defendant understood the charges, possible consequences, and pleading options. He was also aware of the difficulties of his case but was anxious to proceed. He understood the roles of people in court and could describe the working relationship between him and his attorney and appropriate courtroom behavior. He did not present delusional or unusual thinking about the incident. The psychologist concluded that because defendant continued to take his medication, he was, despite his mental illness, competent and was motivated and willing to assist counsel. However, he too opined that if defendant stopped taking his medication, he could become incompetent again.
On April 20, 2005, the court declared defendant competent, and the proceedings recommenced. Trial began on June 14. Defendant testified on June 22.
In addition to the testimony directly relevant to the attack on Silva, defendant made a number of other statements about less relevant matters. In response to Anna Harrison’s testimony that defendant had “something against women,” defendant explained, “That is real crazy. Only a homosexual would have something against women. I hate homosexuals. There’s nothing on the face of this earth colder than a homosexual.” Defendant said he loved women and was not a “fag.” When the court explained that he needed to answer counsel’s questions, defendant said he was simply trying to defend himself and not look like a “faggot,” saying “Fags go to hell.”
Defendant also denied that Anna Harrison was his mother. He said his mother’s name was really Ford, and “[s]he’s from Cairo, Egypt, but she lives in Israel. Africa is a world. Africa is a dope world. You’ve got Egypt, Israel, and Ethiopia, Hebrew. I’m from Egypt, okay? I bought my mother a house in Israel in about 1999, after I got out of the penitentiary in U.S.A., when I gave a man a bloody nose and a bloody lip.”
Defendant admitted that he had lived with Harrison in Denver. He said she’s “with Satan, believing that we’ll be in hell or in spirit one day for eternity. Electric chair on top of his head—her head. Excuse me. That’s a woman.”
Defendant said that he was taking his medication every night while he was in jail because he wanted his day in court and did not want to have to return to “a crazy hospital.” However, he denied needing medication, having a mental illness, or being crazy or schizophrenic. He said the “crazy doctor” said he was schizophrenic just to make him look “soft.” He said he was sane and intelligent. He claimed that he had attended college in San Jose and Miami and had a law degree. However, his criminal record prevented him from practicing, so he studied law “just so I know what I’m doing if I were to catch a case.” He also said that he had studied psychology, computer engineering, computer technology, auto mechanics and auto engineering.
Defendant testified that he was released from prison in January 2003, but was returned because of a parole violation. In prison, he spent most of his time in “the hole” and denied that he had received mental health treatment there. He said that happened later after an incident in the yard, when he was sent to “a crazy house, Atascadero State Hospital.” “And when I just went—when I come back for this—this little bogus case right here, I went to Atascadero State Hospital.” He opined, “If I lose, which my public defender told me I’m going to lose, I prefer to be in the penitentiary.”
Defendant denied knowing Sonjia Crowder and said she looked like a man. He also denied ever being in Oakland, where “[t]here’s nothing but gay people out there. I come to San Jose. I’m from Africa. Anybody from God-believing community, African community, meaning the continent of Africa, continent of Asia, the country of Iraq, Saudi Arabia, Belize, Jamaica, Cuba, Columbia, we come to San Jose. San Jose is a decent city. They don’t too much hate us, you know. There was a decent amount of black people in San Jose.” Defendant said, “We come down there sometimes to sell drugs. There’s a lot of gay people in America. Gay people get hooked on drugs. I was walking down the street smoking a crack joint, because Tomara Jackson, someone who I was staying with for a couple of days.” He denied fathering children with Jackson or ever touching her.
He also denied that Sonjia Crowder had been his girlfriend. He asserted that he had many wives and said again that he was not gay, had no problem with women, and would “get down on somebody if [he] [found] out he’s a fag.” He could not understand “why this person, Sonjia, came in the court to prove a whole [other] case that I didn’t participate in to look me bad.”
On cross-examination, defendant agreed that he had spoken to defense counsel and done his best to help him.
During a recess, defense counsel informed the court that defendant appeared to be manifesting some of the negative symptoms described by Doctor Cozzolino. He further reported that defendant had never cooperated with him. Counsel then declared a doubt about defendant’s competency.
The prosecutor noted that defendant’s own expert Doctor Cozzolino had visited defendant in jail, and as of June 8, he considered defendant to be competent. The prosecutor argued that defendant’s testimony was consistent with the conclusions of the last two evaluators—i.e., that despite mental illness, defendant could understand the trial and could cooperate with counsel.
Defense counsel pointed out that defendant had been moved from the fourth floor of the jail to the mental health unit. Counsel asserted that defendant’s competency was a day-to-day issue and suggested that the court obtain defendant’s medical records from the jail.
Based on the totality of circumstances, including defendant’s attendance, demeanor, conduct, and interactions with counsel during the trial and his direct and cross-examination, the court found that defendant appeared capable of understanding the proceedings and assisting counsel. Focusing on defendant’s current functional capacity, the court observed that when asked pointed questions and not allowed to ramble, defendant responded appropriately, denied events, and remembered what he was doing on the day of the incident. The court tentatively found no grounds to declare a doubt but postponed its ruling until counsel had a chance to review the jail records.
After reviewing the records up to June 3, counsel said, “There doesn’t seem to be anything in there that would suggest that he had deteriorated to a point of being incompetent, although there are no records after . . . the 3rd of June. So I have nothing more to offer other than what we discussed earlier.”
The court asked the custodian of records whether she had brought over all of defendant’s records. She confirmed that she had. She was not aware of additional records, although some inmates do have multiple volumes.
The court then declined to declare doubt as to defendant’s competency. The court opined that defendant’s bizarre statements were often expressions of hostility rather than mental incompetence and did not demonstrate that he was unable to comprehend the proceedings or assist counsel.
Discussion
Consistent with the due process clause of the Fourteenth Amendment and state law, the state may not try or convict a mentally incompetent defendant. (Godinez v. Moran (1993) 509 U.S. 389, 396; Drope v. Missouri (1975) 420 U.S. 162, 171-172; Pate v. Robinson (1966) 383 U.S. 375, 378; People v. Ramos (2004) 34 Cal.4th 494, 507; § 1367 et seq.) Under the state standard for competency, which is essentially the same as the federal standard, a defendant who is “unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner” is incompetent to stand trial. (§ 1367; see Dusky v. United States (1960) 362 U.S. 402 [“ ‘sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding’ ” and a “ ‘rational as well as factual understanding of the proceedings against him’ ”].)
If “a doubt arises in the mind of the judge as to the mental competence of the defendant” at any time prior to judgment, the court is required to conduct a hearing pursuant to Penal Code section 1368 to determine the defendant’s competence. (§ 1368; People v. Rodrigues (1994) 8 Cal.4th 1060, 1110.) In particular, the trial court is required to conduct a section 1368 hearing to determine a defendant’s competency “whenever substantial evidence of incompetence has been introduced. [Citations.] Substantial evidence is evidence that raises a reasonable doubt about the defendant's competence to stand trial. [Citations.]” (People v. Frye (1998) 18 Cal.4th 894, 951-952.) By contrast, evidence that “merely raises a suspicion that the defendant lacks present sanity or competence but does not disclose a present inability because of mental illness to participate rationally in the trial is not deemed ‘substantial’ evidence requiring a competence hearing.” (People v. Deere (1985) 41 Cal.3d 353, 358, disapproved on other grounds in People v. Bloom (1989) 48 Cal.3d 1194, 1228, fn. 9.)
In determining whether there is substantial evidence of incompetence, the court must consider all of the relevant circumstances, including defendant’s behavior and demeanor, prior medical opinion, defense counsel’s experience, and the court’s own observations. (Drope v. Missouri, supra, 420 U.S. at p. 180; People v. Howard (1992) 1 Cal.4th 1132, 1164; People v. Jones (1991) 53 Cal.3d 1115, 1153.)
“There are, of course, no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed; the question is often a difficult one in which a wide range of manifestations and subtle nuances are implicated.” (Drope v. Missouri, supra, 420 U.S. 162, 180; Cooper v. Oklahoma (1996) 517 U.S. 348, 365 [“the ‘inexactness and uncertainty’ that characterize competency proceedings may make it difficult to determine whether a defendant is incompetent or malingering”].) However, “more is required to raise a doubt than mere bizarre actions [citation] or bizarre statements [citation] or statements of defense counsel that defendant is incapable of cooperating in his [or her] defense [citation] or psychiatric testimony that defendant is immature, dangerous, psychopathic, or homicidal or such diagnosis with little reference to defendant’s ability to assist in his own defense [citation].” (People v. Laudermilk (1967) 67 Cal.2d 272, 285; accord, People v. Davis (1995) 10 Cal.4th 463, 527; People v. Ramos, supra, 34 Cal.4th at p. 508 [defendant must show more than a preexisting psychiatric condition].) And, the burden is on the defendant to establish that he or she is not competent to stand trial. (§ 1369, subd. (f); People v. Marshall (1997) 15 Cal.4th 1, 31; People v. Stanley (1995) 10 Cal.4th 764, 816.)
Moreover, “[w]hen, as here, a competency hearing has already been held and the defendant was found to be competent to stand trial, a trial court is not required to conduct a second competency hearing unless ‘it “is presented with a substantial change of circumstances or with new evidence” ’ that gives rise to a ‘serious doubt’ about the validity of the competency finding. [Citation.]” (People v. Marshall, supra, 15 Cal.4th at p. 33, italics added.)
On appeal, we give the trial judge’s determination great deference. (People v. Ramos, supra, 34 Cal.4th at p. 507.) “An appellate court is in no position to appraise a defendant’s conduct in the trial court as indicating insanity, a calculated attempt to feign insanity and delay the proceedings, or sheer temper.” (People v. Merkouris (1959) 52 Cal.2d 672, 679.)
Defendant first notes the evidence of his lengthy history of mental illness, his statements at ASH that he would refuse medication in jail, and the warnings from professionals that defendant would relapse if he stopped taking medication. With this as background, defendant claims (1) that the lengthy period between the court’s April 2005 determination of competency and the commencement of trial in June, (2) defendant’s transfer in June to the mental health unit in the jail, (3) his subsequent bizarre testimony and its similarity to statements he made when he previously had been found to be incompetent, and defense counsel’s statement that defendant had not cooperated with him constituted evidence of a substantial change in circumstances—i.e., defendant’s mental status had significantly deteriorated. Defendant argues that this new evidence raised serious doubts concerning the court’s prior determination that defendant was competent. We disagree.
Defendant’s mental history, his previous refusals to take medication in jail, and the warnings that he would relapse without medication do not represent changed circumstances or new evidence. That information was provided to the court long before defendant testified. Moreover, the length of time between the court’s April 2005 determination of competency and the start of trial in June—around two months—does not reasonably imply that defendant’s mental condition had deteriorated. We note that defendant was declared competent in November 2004, and, despite defense counsel’s declared doubt in January 2005, subsequent psychological evaluators found that he remained competent in February and in March, and the court declared him competent in April.
Similarly, without more, the fact that defendant was transferred to the mental health unit sometime before trial does not establish that he was not taking medication or had suffered a significant deterioration before or after the transfer. Apparently, defendant’s jail records up to June 3, did not so suggest. And Doctor Cozzolino testified that on June 8, after the transfer, he interviewed defendant for 45 minutes and found that he was able to communicate rationally and answer questions logically, he was more cooperative and less irritable and angry than he had been, and it appeared that he was taking his medication. Thus, Doctor Cozzolino agreed with the prior evaluations and found that defendant was still competent for trial. Moreover, at trial, defendant confirmed that he had been taking his medication every night.
We acknowledge that during the June 8 interview, Doctor Cozzolino observed signs of paranoia. However, defendant’s paranoia was not a new circumstance; nor was it necessarily inconsistent with being competent. Defendant had exhibited paranoid symptoms to numerous psychological evaluators in the past. And although some of them had concluded that defendant was incompetent, other had concluded that with medication, he was competent despite his mental illness.
We also acknowledge that at trial, defendant made bizarre statements similar to those he had made to the psychological evaluators who had declared him to be incompetent. However, defendant also made some bizarre and some obviously untrue and delusional statements about his birth in Egypt, his mother, his educational achievements, his taking medication so he could avoid returning to ASH, and his frustration with the delay to other evaluators, who nevertheless found him to be competent. Therefore, repetition of bizarre statements at trial does not necessarily represent new evidence or indicate a recent deterioration in defendant’s mental state.
Defendant’s anger and disparaging remarks about his mother, Crowder, and homosexuals in general were also bizarre. However, they were coherent and understandable as responses to Harrison’s and Crowder’s testimony. Anna Harrison, had testified, in essence, that defendant was scary and crazy and had a serious problem with women, which defendant took as a suggestion that he was homosexual. Crowder had accused him of attacking her. Under the circumstances, defendant’s statements are not substantial evidence that his condition had changed. As noted, something more than bizarre statements and behavior is needed to raise a doubt concerning a defendant’s competence. (People v. Laudermilk, supra, 67 Cal.2d at p. 285; e.g., People v. Weaver (2001) 26 Cal.4th 876, 952-954 [doctor’s observation of defendant during trial and opinion that he was losing touch with reality and suffering from schizophrenia did not require second competency hearing]; People v. Medina (1995) 11 Cal.4th 694, 734-735 [same re cursing and disruptive behavior requiring removal from the courtroom]; People v. Kelly (1992) 1 Cal.4th 495, 543 [no second hearing required where “[t]he substance of the defense testimony relied upon on appeal was generally included in the facts defense counsel recited when they expressed their doubts as to competency in the first place”].)
For the same reason, defendant’s angry statements during a “402” hearing about his brother Jamell, who defendant thought would testify that defendant was a “punk,” do not necessarily reflect changed circumstances.
We observe that the record does not show that, in addition to his bizarre statements, defendant exhibited some of the more serious symptoms of psychosis that previously had been observed by those who had found defendant to be incompetent. For example, the record does not reveal that defendant was wholly confused, disoriented, or grossly disorganized; had disturbing or intrusive thoughts; or was unmotivated. The record does not reveal that his speech was labored or slurred; or that he intimidated others, was overly sensitive, angry, or irritated by innocuous questions or comments. Moreover, the record reveals that he was able to concentrate and focus, and it does not appear that he was having auditory hallucinations or that he whispered or laughed to himself or seemed internally preoccupied.
Certainly, if defendant had stopped taking his medication and his condition had substantially deteriorated before or during trial, one would reasonably expect some of those symptoms to reappear. However, counsel did not declare a doubt before defendant testified.
Moreover, at that time, defense counsel simply asserted that defendant exhibited “many signs that Dr. Cozzolino had described as delusional in the records, as well as features that would suggest negative symptoms.” Counsel did not specify what those signs and symptoms were, and the court did not agree that defendant’s demeanor indicated a substantial change in circumstances and undermined the previous finding of competency. The trial court’s findings, especially when based on its observations of defendant’s demeanor and behavior, are entitled to deference. (People v. Ramos, supra, 34 Cal.4th at p. 507; see People v. Merkouris, supra, 52 Cal.2d at p. 679.) Moreover, counsel’s additional statement that defendant had never cooperated with him is not by itself sufficient to raise a doubt concerning defendant’s competence. (People v. Laudermilk, supra, 67 Cal.2d at p. 285.)
Defendant argues that counsel’s assertion of non-cooperation is supported by his testimony, which demonstrates that he was incapable of understanding the proceedings and cooperating with defense counsel in a rational way. Defendant notes that defense counsel’s strategy was to admit that defendant attacked Silva with the intent to kill but argue that due to his mental illness, defendant did not act with premeditation and deliberation or with the specific intents required for aggravated mayhem and torture. Moreover, counsel had stipulated that defendant’s blood did not contain illicit drugs, the blood on defendant’s pants was Crowder’s, and the blood on his shoe was Silva’s. At trial, however, defendant contradicted the stipulations and counsel’s theory of the case. He testified that (1) he was smoking crack just before the police found him; (2) he did not know Crowder; and (3) he did not attack Silva and had never seen her before.
As noted, counsel also wanted defendant to plead not guilty by reason of insanity, but defendant rejected that plea option.
We agree that defendant did not cooperate with defense counsel’s strategy. However, we note that during his interview with the police, defendant denied attacking Silva and also said he had been smoking crack. He consistently told the various psychological evaluators that he did not have a mental illness and was innocent, and despite his claim and the apparently strong evidence against defendant, some evaluators nevertheless found him capable of assisting counsel.
The record further reveals that defendant knew that defense counsel believed he had a mental illness. He told evaluators that he was frustrated by the delay in proceedings and blamed counsel for his being sent to ASH. Defendant was also aware that defense counsel wanted him to plead not guilty by reason of insanity; and after being declared competent, defendant rejected that advice.
Under the circumstances, and in the absence of substantial evidence of mental deterioration, defendant’s contradictory testimony does not so much demonstrate that he was incapable of cooperating with counsel as show that he simply disagreed with and knowingly rejected it, just as he had previously rejected counsel’s advice to plead not guilty by reason of insanity. (See, e.g., People v. Welch (1999) 20 Cal.4th 701, 742 [that defendant disagreed with counsel over defenses, distrusted the system, and thought counsel was “in league with” the prosecutor did not require second competency hearing].) However misguided defendant’s decisions may now appear to have been, his testimony denying culpability was consistent with and maintained the position he had asserted since his arrest. And, despite strong contrary evidence, defendant’s testimony about why he was near Silva’s house and what he was doing was not on its face incoherent, illogical, or irrational. Finally, we note that during closing argument, defense counsel accommodated defendant’s testimony. Instead of expressly admitting that defendant attacked Silva, counsel argued that “whoever” entered Silva’s house did so with an intent to kill. He argued that if the jury believed defendant’s testimony, he must be acquitted. However, if the jury disbelieved him and found that the prosecutor had proved beyond a reasonable doubt that defendant committed the assault, then it should find that due to his mental illness, he did not act with premeditation and deliberation or the specific intent necessary to convict him of aggravated mayhem and torture.
In sum, defendant has failed to convince us that the court abused its discretion in declining to hold another competency hearing. Nor do we find that as a matter of law, there was evidence of a substantial change in defendant’s mental condition or new evidence that gave rise to a serious doubt concerning defendant’s competence. (People v. Marshall, supra, 15 Cal.4th at p. 33.)
SUFFICIENCY OF THE EVIDENCE
Defendant contends there is insufficient evidence to support his conviction for aggravated mayhem and the finding that he acted with premeditation.
When considering a challenge to the sufficiency of the evidence to support a criminal conviction or enhancement, we determine whether there is substantial evidence—i.e., evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could make the necessary findings beyond a reasonable doubt. In making that determination, we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. Rather, we review the whole record in the light most favorable to the judgment, we draw all reasonable inferences from the evidence that support it, and we presume the existence of every fact the trier of fact could reasonably deduce from the evidence. (Jackson v. Virginia (1979) 443 U.S. 307, 319-320; People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Vy (2004) 122 Cal.App.4th 1209, 1224.)
Aggravated Mayhem
“Aggravated mayhem is a specific intent crime which requires proof the defendant specifically intended to cause the maiming injury, i.e., the permanent disability or disfigurement. [Citation.] ‘[S]pecific intent may be inferred from the circumstances attending an act, the manner in which it is done, and the means used, among other factors.’ [Citation.] Thus evidence of a ‘controlled and directed’ attack or an attack of ‘focused or limited scope’ may provide substantial evidence of such specific intent. [Citation.] However, where the evidence shows no more than an ‘indiscriminate’ or ‘random’ attack, or an ‘explosion of violence’ upon the victim, it is insufficient to prove a specific intent to maim. [Citation.]” (People v. Quintero (2006) 135 Cal.App.4th 1152, 1162.)
Section 205 provides, “A person is guilty of aggravated mayhem when he or she unlawfully, under circumstances manifesting extreme indifference to the physical or psychological well-being of another person, intentionally causes permanent disability or disfigurement of another human being or deprives a human being of a limb, organ, or member of his or her body. For purposes of this section, it is not necessary to prove an intent to kill. Aggravated mayhem is a felony punishable by imprisonment in the state prison for life with the possibility of parole.”
Defendant asserts that “[t]here was a great deal of evidence in this case that suggested that this was an indiscriminate attack.” He notes that defendant had “a history of being a wildly erratic, irrational, violent person. His zombie-like attack on Mrs. Silva, without uttering a word to her appears to have been a horrific, but indiscriminate attack.” He claims that “[t]he only arguable evidence that [he] intended to maim Mrs. Silva is the circumstantial fact that she was, in fact, maimed.” However, without more, her resulting injuries are insufficient to support a finding of an intent to maim.
In People v. Park (2003) 112 Cal.App.4th 61 (Park), the defendant attacked a member of a rival group with a long, steel knife-sharpener, bringing it from behind his head and forward over his shoulder in a throwing motion. The victim held out his arm to protect his face. The defendant hit him in the arm three or four times and then hit him in the mouth, breaking eight of his teeth and causing profuse bleeding. (Id. at p. 65.) The defendant was convicted of aggravated mayhem and on appeal claimed there was insufficient evidence of an intent to maim. (Id. at p. 68.) In rejecting this claim, the court explained, “For one thing, defendant’s mode of attack demonstrates this was not an indiscriminate attack. He attacked using the steel knife-sharpener in a throwing motion by bringing the weapon from behind his head and over his shoulder. This action gave his blows more force and therefore gave him a greater ability to inflict serious injury than if he had simply held the sharpener in front of him and tried to jab or stab [the victim]. Significantly, defendant aimed at an extremely vulnerable portion of [the victim’s] body: his head. When [the victim] tried to defend himself by holding his arm in front of his face, defendant did not strike other portions of [the victim’s] body but instead first hit [the victim’s] arm several times to break through this defense and then hit [the victim] in the mouth. Defendant’s limiting the scope of his attack to [the victim’s] head shows this was not an indiscriminate attack but instead was an attack guided by the specific intent of inflicting serious injury upon [the victim’s] head. It is particularly significant that defendant stopped his attack once he had maimed [the victim’s] face: he had accomplished his objective.” (Id. at p. 69.)
Here, defendant severely cut Silva’s hand as she tried to defend herself. He also stabbed her in the chest and shoulder. However, he primarily focused his attack on her face, slashing it numerous times and then bashing her in the eye with a hammer. Although the evidence of intent is not overwhelming, a rational juror could infer from such a focused and deliberate attack on Silva’s face that defendant intended to permanently disfigure her. (Cf. People v. Ferrell (1990) 218 Cal.App.3d 828, 835-836 [single gunshot to the neck of stranger sufficient to show intent to maim]; People v. Campbell (1987) 193 Cal.App.3d 1653, 1668-1669 [focused and controlled attacked on head and face showed intent to maim].)
Moreover, although the evidence could reasonably support a finding that the attack was an indiscriminate explosion of violence, evidence that defendant may have had a history of wildly erratic, irrational, and violent behavior does not necessarily or conclusively establish that it was an indiscriminate explosion of violence; nor does it preclude a finding that he intended to maim Silva. On the contrary, the jury discounted the evidence of defendant’s mental illness and found that he acted with premeditation and deliberation. Moreover, counsel implicitly conceded that despite his mental illness, he was able to harbor the specific intent to kill.
Defendant argues that Park is distinguishable because in finding an intent to maim, the court also relied on the fact that the defendant apparently planned his attack following demonstrated antagonism between his and a rival group. Such circumstances, the court reasoned, “show defendant’s attack was the product of deliberation and planning, not an explosion of indiscriminate violence.” (Park, supra, 112 Cal.App.4th at p. 70.) Here, defendant armed himself, went to Silva’s house, cut through a screen door, and then attacked Silva. Although he may not have known Silva in advance, such evidence is akin to that in Park because it tended to show that defendant had a plan when he approached Silva’s house armed with a knife.
We also find defendant’s reliance on People v. Lee (1990) 220 Cal.App.3d 320 (Lee) to be misplaced. There, a tenant attacked another tenant, punching the victim in the face three times and kicking him in the body twice. (Id. at p. 326.) The court concluded that the evidence showed only “a sudden, indiscriminate, and unfocused battering of [the victim’s] body. While this evidence undoubtedly shows extreme indifference to [the victim’s] physical well-being, it does not show a controlled, directed, limited attack . . . from which a jury could reasonably have inferred that defendant specifically intended to disable [the victim] permanently.” (Id. at p. 326.)
Lee is distinguishable because here, there was evidence of planning and premeditation, and defendant repeatedly attacked Silva’s face with a knife and hammer, implements that, unlike fists and feet, are more likely to cause permanent disfigurement.
Premeditation
Attempted first degree murder requires a finding of premeditation and deliberation. (People v. Villegas (2001) 92 Cal.App.4th 1217, 1223.) In this regard, “ ‘[d]eliberation’ refers to careful weighing of considerations in forming a course of action; ‘premeditation’ means thought over in advance. [Citations.]” (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) “The process of premeditation and deliberation does not require any extended prior of time. ‘The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . .’ [Citations.]” (People v. Mayfield (1997) 14 Cal.4th 668, 767.)
In People v. Anderson (1968) 70 Cal.2d 15, the California Supreme Court explained that in assessing the sufficiency of evidence concerning premeditation and deliberation, a reviewing court could consider three relevant categories of evidence: planning activity, motive, and manner of killing. These categories or factors, however, are not exclusive. Nor need they be present in some special combination or accorded a particular weight. (People v. Steele (2002) 27 Cal.4th 1230, 1249; People v. Sanchez (1995) 12 Cal.4th 1, 32-33.)
In People v. Morris (1988) 46 Cal.3d 1, 23, disapproved on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 545, footnote 6, the court opined that “when one plans to engage in illicit activity at an isolated location during the early morning hours, and one brings along a deadly weapon which is subsequently employed, it is reasonable to infer that one considered the possibility of homicide from the outset.”
Here, defendant stole a knife from his aunt. Days later, he went to Silva’s house in an isolated location early in the morning, cut through her screen door, and repeatedly and viciously attacked her with a knife and hammer. Both the planning and manner of the attack support an inference that before he commenced his attack, defendant had carefully weighed the considerations in forming his plan of action.
Defendant argues that the substantial evidence of his mental impairment, his blank and zombie-like appearance to Silva, and his totally unprovoked and violent attack on a stranger established that he did not have “the capacity to premeditate” and “negate[d] any type of possible premeditation.”
Contrary to the rules governing our review on appeal, defendant draws inferences from the evidence in his favor and, in effect, assumes that the jury was compelled to find that as a result of his mental illness, he did not deliberate. However, “[a] finding of deliberation and premeditation is not negated by evidence a defendant’s mental condition was abnormal or his perception of reality delusional unless those conditions result in the failure to plan or weigh considerations for and against the proposed course of action. The mental process necessary for a finding of deliberation and premeditation is not dependent on the motivation for the act. Nor is the necessary mental process lacking when the considerations reflected on by the defendant were the product of mental disease and defect.” (People v. Stress (1988) 205 Cal.App.3d 1259, 1270-1271.) In other words, even if the jury accepted that defendant suffered from a mental disorder, including paranoia and delusions, it could still have concluded that he acted with premeditation and deliberation.
Moreover, contrary to defendant’s argument, we do not find that the evidence of his mental illness and behavior before and during the attack as a matter law negated premeditation and deliberation or precluded such a finding. Indeed, during his interview with the police shortly after his arrest, defendant’s responses were coherent and logical, he responded to questions appropriately, he did not appear to be hallucinating, and he did not appear to be laboring under the burden of a mental disorder that might have prevented him from acting with intent to kill but not premeditation or deliberation. Although Doctor Cozzolino testified that he observed negative symptoms of schizophrenia—i.e., a lack of willful movements and a monotonous speech pattern—during the taped interview, he did not opine that defendant was in an irrational, psychotic, or completely delusional state. Moreover, he explained that while schizophrenia can affect a person’s ability to weigh the consequences of his or her actions, people with schizophrenia can function normally.
PINPOINT INSTRUCTIONS ON AGGRAVATED MAYHEM
Defendant contends that the court erred in refusing to give three pinpoint instructions on his alternate theory of the case, which was that he attacked Silva with an intent to kill but not an intent to maim.
Defendant requested that the court give the following instructions.
“If your find that defendant had the specific inten[t] to kill Mrs. Silva beyond a reasonable doubt, but cannot find that the defendant had the specific inten[t] to maim or permanently disable Mrs. Silva beyond a reasonable doubt, you must find the defendant not guilty of aggravated mayhem.”
“A specific intent to kill is insufficient to prove aggravated mayhem. In order to prove aggravated mayhem you must find, beyond a reasonable doubt, that there was a specific intent to maim or permanently disable.”
“Aggravated mayhem is a specific intent crime that requires proof beyond a reasonable doubt that the defendant intended to cause the victim permanent disability or disfigurement. [¶] The specific intent to maim may not be inferred solely from evidence that the injury actually constituted mayhem; there must be other facts and circumstances that support an inference of intent to maim rather than to attack indiscriminately. [¶] Evidence that show[s] no more than an indiscriminate attack is insufficient to prove the required specific intent for aggravated mayhem.”
In rejecting these instructions, the court found them to be duplicative of CALJIC No. 9.32. As given, that instruction provided, “The defendant is accused in Count 3 of having committed the crime of aggravated mayhem, in violation of section 205 of the Penal Code. [¶] Every person who unlawfully, under circumstances manifesting extreme indifference to the physical or psychological well-being of another person, intentionally causes permanent disability or disfigurement of another human being or drives a human being of a limb, organ, or member of her body, is guilty of the crime of aggravated mayhem, in violation of Penal Code Section 205. [¶] In order to prove this crime, each of the following elements must be proved: [¶] 1. One person intentionally and unlawfully caused another person to sustain permanent disability or disfigurement or deprived another person of a limb, organ, or member of his or her body; [¶] 2. The person who inflicted the injury did so with the specific intent permanently to disable, disfigure, or to deprive the other person of a limb, organ, or member of her body; [¶] 3. The person who inflicted the injury did so maliciously; that is, with an unlawful intent to vex, annoy, or injury another person; and [¶] 4. That person engaged in the conduct under circumstances which demonstrated his extreme indifference to the physical or psychological well-being of the person subsequently injured. [¶] An intent to kill is not an element of the crime.”
“A criminal defendant is entitled, on request, to an instruction ‘pinpointing’ the theory of his defense. [Citations.]” (People v. Wharton (1991) 53 Cal.3d 522, 570.) On the other hand, the trial court is only required to instruct the jury with legally correct statements of law that are not confusing, duplicative or argumentative. (See People v. Berryman (1993) 6 Cal.4th 1048, 1079, overruled on another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) Thus, pinpoint instructions are permitted when they describe “ ‘the theory of the defense’ ” but not if they “highlight ‘ “specific evidence as such.” ’ [Citations.]” (People v. Earp (1999) 20 Cal.4th 826, 886.)
Defendant’s first and second proposed instructions simply stress that even if the jury found that defendant intended to kill Silva, that finding is not enough to convict him of aggravated mayhem; it had to independently find a specific intent to maim.
We agree with the trial court that those two proposed instructions are duplicative of the court’s instruction, which explained that (1) an intent to kill is not an element of aggravated mayhem; and (2), to convict defendant of that offense, it had to find a specific intent permanently to disable, disfigure, or to deprive the other person of a limb, organ, or member of her body. Given the court’s instruction, we find no reasonable likelihood that jurors would, or did, base the mayhem conviction on a finding of intent to kill and not specifically and independently on an intent to maim or that jurors mistakenly believed that an intent to kill was equivalent to or a substitute for a finding of intent to maim. (See Boyde v. California (1990) 494 U.S. 370, 381; People v. Kelly (1992) 1 Cal.4th 495, 525-526.)
Defendant’s third proposed instruction was also duplicative in that it too stressed the need for a separate finding of specific intent to maim. However, unlike the court’s instruction, the proposed instruction further advised jurors concerning the factual showing necessary to prove an intent to maim: (1) it “may not be inferred solely from evidence that the injury actually constituted mayhem” and (2) there must be additional circumstances that show an intent to maim “rather than to attack indiscriminately.” This additional guidance was not duplicative and comprised correct statements of law. (People v. Ferrell, supra, 218 Cal.App.3d at p. 835; accord, Park, supra, 112 Cal.App.4th at p. 64.)
In People v. Ferrell, supra, 218 Cal.App.3d at page 835, the court stated, “Evidence which shows no more than an “indiscriminate attack” is insufficient to prove the specific intent to commit mayhem . . . . [Citations.] Furthermore, specific intent to maim may not be inferred solely from evidence that the injury inflicted actually constitutes mayhem; instead, there must be other facts and circumstances which support an inference of intent to maim rather than to attack indiscriminately. [Citation.]”
Moreover, the additional guidance tended to pinpoint defense counsel’s theory of the case: If defendant attacked Silva, then he did so with only an intent to kill; he did not premeditate and deliberate; nor did he specifically intend to maim her. He simply entered her house and indiscriminately attacked her with a knife and then a hammer with an intent to kill.
More specifically, concerning aggravated mayhem, counsel conceded that Silva was maimed, but he argued, “But the law is—and if you have a question about that, you can ask the Court. The law is you cannot look at the injury to find aggravated mayhem. You have to look at the intent. [¶] Did he intend to disable her, disfigure her? Was that his intent? No. His intent was to kill her. It wasn’t, ‘I’m going to take the eye out.’ Why not the other eye, then? He’d beaten her with a hammer. He’s stabbing her. That was his intent. [¶] Again, the law is you cannot use the intent to kill to establish the intent to commit aggravated mayhem.”
Counsel also argued that defendant did not act with the intent necessary for a torture conviction—i.e., “the specific intent to cause cruel or extreme pain and suffering for revenge, extortion or persuasion or any sadistic purpose.” (People v. Lewis (2004) 120 Cal.App.4th 882, 888, fn. omitted.)
Under the circumstances, we conclude that the court erred in refusing to instruct the jury in accordance with those parts of defendant’s third proposed instruction that were neither duplicative nor argumentative.
We review the failure to give a properly requested pinpoint instruction under People v. Watson (1956) 46 Cal.2d 818, 836 and therefore focus on whether it is reasonably probable defendant would have obtained a more favorable result had the instruction been given. (See People v. Hughes (2002) 27 Cal.4th 287, 363 ; People v. Wharton, supra, 53 Cal.3d at p. 570.)
Where the prosecution’s case is strong, defense counsel’s jury argument pinpoints the defense, and the instructions given sufficiently cover the topic, the failure to give an instruction has been considered harmless. (E.g., People v. Gutierrez (2002) 28 Cal.4th 1083, 1142; People v. Hughes, supra, 27 Cal.4th at p. 363; People v. Earp, supra, 20 Cal.4th at p. 887; People v. Fudge (1994) 7 Cal.4th 1075, 1111-1112.)
Here, the evidence of an intent to kill was overwhelming. However, apart from Silva’s injuries, the evidence of an intent to maim, while sufficient to support the jury’s finding, was not overwhelming. Given the injuries to numerous parts of Silva’s body, the jury reasonably could have found that defendant indiscriminately attacked her with only an intent to kill her. It could then have found that because she lost an eye, he must have also intended to maim her. The court’s instructions did not prevent or preclude such a finding.
Moreover, the court instructed the jurors that they must follow the law as given by the court and ignore contrary statements by the attorneys. (See CALJIC No. 1.00.) Here, defense counsel correctly asserted that the law prohibited jurors from finding intent based solely on Silva’s injuries and invited jurors to ask the court any questions it might have in this regard. The jury later asked to be reinstructed on aggravated mayhem. However, the court simply reread its previous instruction. Thus, it did not corroborate defense counsel’s correct statement of the law and thereby implied that jurors should disregard it.
Last, we note that although the evidence could reasonably have supported a finding that defendant attacked Silva with a sadistic intent to cause pain—i.e., had the requisite intent for a torture conviction—the jurors were unable to reach a unanimous verdict on the torture count. In our view, the jury’s deadlock indicates that jurors had some difficulty evaluating defendant’s intent.
Under the circumstances, we find a reasonable probability that defendant would have obtained a more favorable result, which would include a mistrial, had the court given defendant’s third requested instruction. (See People v. Watson, supra, 46 Cal.2d at p. 836; People v. Bowers (2001) 87 Cal.App.4th 722, 735-736 [mistrial a more favorable result].) Accordingly, defendant’s conviction for aggravated mayhem cannot stand.
Defendant asserts that the erroneous failure to give a pinpoint instruction violated his federal constitutional rights and constitutes per se reversible error. In support, he cites United States v. Escobar De Bright (9th Cir.1984) 742 F.2d 1196, where the Ninth Circuit held that the refusal to instruct on a defense was reversible per se. (Id. at pp. 1201-1202.)
DISPOSITION
The judgment is reversed. The matter is remanded for further proceedings.
WE CONCUR: PREMO, J., ELIA, J.
All unspecified statutory references are to the Penal Code.
Defendant cites no California case adopting the Ninth Circuit’s approach, and decisions of lower federal courts on federal matters, while persuasive, are not binding on this court. (See Rohr Aircraft Corp. v. County of San Diego (1959) 51 Cal.2d 759, 764-765; People v. Figueroa (1992) 2 Cal.App.4th 1584, 1587.) Moreover, we doubt whether the failure to instruct on self-defense represents the sort of structural error which the United States Supreme Court reversible per se. (See Neder v. United States (1999) 527 U.S. 1, 9, 18; cf. People v. Flood (1998) 18 Cal.4th 470 [failure to instruct on element subject to harmless-error review]; Arizona v. Fulminante (1991) 499 U.S. 279 [erroneous admission of evidence in violation of Fifth Amendment rights]; Delaware v. Van Arsdall (1986) 475 U.S. 673 [erroneous exclusion of evidence in violation of Sixth Amendment rights].) However, given our analysis and conclusion that the failure to give defendant’s pinpoint instruction was prejudicial under a different standard, we need not decide the issue.