PEOPLE v. ELMORE

Appellant’s Petition for Review

Cal.November 30, 2010

SUPREME COURT NO., {oy fet at od IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, ) Court ofAppeal ) No.: B216917 Plaintiff and Respondent, ) ) (Superior Court Vv. ) No.: TA090607) ) CHARLES ELMORE, ) ) Defendant and Appellant. ) ) APPEAL FROM THE SUPERIOR COURT OF LOS ANGELES COUNTY Honorable Arthur Lew, Judge Presiding PETITION OF APPELLANT FOR REVIEW AFTER THE UNPUBLISHED OPINION OF THE COURT OF APPEAL, SECOND APPELLATE DISTRICT, DIVISION SEVEN, VACATING AND REMANDING WITH INSTRUCTIONS THE JUDGMENT OF CONVICTION SUPREME COURT Eric R. Larson, SBN 185750 - 330 J Street, # 609 ° San Diego, CA 92101 NOV 20 2010 (619) 238-5575 “&. Graech Clerk Attorney for Appellant Charles Elmore Deputy Y By Appointmentofthe Court ofAppeal under the California Appellate Project independent case system TOPICAL INDEX PAGE(S) TABLE OF AUTHORITIES 0000 ceccccsececsesecsesesescescseseceeseeseseseseesesaesesees ill ISSUE PRESENTED FOR REVIEW.....000.000...eccesccseseseseeseeesesesessesseeseseaeees 2 STATEMENT OF CASE AND FACTS 0.occeceeeceeeesesesesesesessensteeseseeeenenes 2 ARGUMENT...cccscccessessncesesesecseeseseseeesceseceseaseseseseneseeeeseaeaaeaeeaesesesee 3 L THIS COURT SHOULD GRANT REVIEW TO SETTLE AN IMPORTANT QUESTION OF LAW, NAMELY, WHETHER UNDER CALIFORNIA LAW, THE DOCTRINE OF IMPERFECT SELF-DEFENSE APPLIES IN A CASE IN WHICH THE DEFENDANT’S ACTUAL, THOUGH UNREASONABLE, BELIEF IN THE NEED TO DEFEND HIMSELF WASBASED ON DELUSIONS AND/OR HALLUCINATIONS RESULTING FROM MENTAL ILLNESS, WITHOUT ANY OBJECTIVE CIRCUMSTANCES SUGGESTIVE OF A THREAT. ................. 3 CONCLUSION000iccsesescseseseensesesescnesecscseneasseneeseesssseseeensnesseaneeseeass 14 CERTIFICATE OF WORD COUNT..0000..cccccccscsseesssessesseeseesssessessesneess 15 il TABLE OF AUTHORITIES PAGE(S) CASES Inre Christian S. (1994) 7 Cal4th 768 .......cccccccsseeesessessssesseseeees 7, 8, 9, 10, 13 People v. Conley (1966) 64 Cal.2d 310 vo. .ccceccccsecssssssessessesssssssesesecsseseseees 7 People v. Flannel (1979) 25 Cal.3d 668........cccccsccsccssssssssessescesssssessseeees 7, 8, 13 People v. Hernandez (2000) 22 Cal.4th 512 .....cccccccsssessesscsssssssssescsscsecseees 12 People v. Mejia-Linares (2006) 135 Cal.App.4th 1437.00.00... 4-7, 9-12 People v. Saille (1991) 54 Cal.3d 1103 oeccsesssesesseeeessesesstsesesssseseseesees 12 People v. Stuart (1956) 47 Cal.2d 167 ......ccccccssssssssessssessessssessesseseseseessesceeeess 13 People v. Wright (2005) 35 Cal4th 964......cccccssessessseeseeees 3, 4, 5, 8,9, 11, 13 CALIFORNIA CODES Penal Code section 28 ........cccccccssssssesessessssssseccceccsseceececesssessneaners 6,9, 11, 12 Penal Code section 192 oo... eeeeseecesseesseesseeseesseecsesseeesecssecueessessseesesseesenss 6 RULES OF COURT California Rules of Court rule 8.500 00.0... cceesssescssesseessetessssasesessesseneeseenes 2 California Rules of Court rule 8.504 0... .eccceecsssscesessseeceesessesssseessesseseenees 15 iil SUPREME COURTNO. IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, ) Plaintiff and Respondent, Vv. CHARLES ELMORE, Defendant and Appellant. N e N e e N e e N o m e N e ” e e N e e n e ” e e ” Court ofAppeal No.: B216917 (Superior Court No.: TA090607) APPEAL FROM THE SUPERIOR COURT OF LOS ANGELES COUNTY Honorable Arthur Lew, Judge Presiding PETITION OF APPELLANT FOR REVIEW AFTER THE UNPUBLISHED OPINION OF THE COURT OF APPEAL, SECOND APPELLATE DISTRICT, DIVISION SEVEN, VACATING AND REMANDING WITH INSTRUCTIONS THE JUDGMENT OF CONVICTION TO THE HONORABLE RONALD M. GEORGE, CHIEF JUSTICE, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE SUPREME COURT OF CALIFORNIA: Appellant, Charles Elmore, respectfully requests this Court grant review in the above-entitled case following the unpublished opinion of the Court of Appeal, Second Appellate District, Division Seven, vacating and remanding with instructions the judgment of the Superior Court of Los Angeles County. The opinion of the Court of Appeal was filed on October 27, 2010. A copy ofthe Opinionis attached hereto as Appendix A. Pursuant to California Rules of Court, rule 8.500, review is urged to settle an important issue of law. ISSUE PRESENTED FOR REVIEW 1. Under California law, does the doctrine of imperfect self- defense apply in a case in which the defendant’s actual, though unreasonable, belief in the need to defend himself was based on delusions and/or hallucinations resulting from mental illness, without any objective circumstances suggestive of a threat? STATEMENT OF CASE AND FACTS Appellant adopts the procedural and factual backgroundas set forth in the Court ofAppeal’s Opinion. (Appendix A pp. 1-11.) //]/ [// /// /// /// /// /// ARGUMENT I THIS COURT SHOULD GRANT REVIEW TO SETTLE AN IMPORTANT QUESTION OF LAW, NAMELY, WHETHER UNDER CALIFORNIA LAW, THE DOCTRINE OF IMPERFECT SELF-DEFENSE APPLIES IN A CASE IN WHICH THE DEFENDANT’S ACTUAL, THOUGH UNREASONABLE, BELIEF IN THE NEED TO DEFEND HIMSELF WAS BASED ON DELUSIONS AND/OR HALLUCINATIONS RESULTING FROM MENTAL ILLNESS, WITHOUT ANY OBJECIVE CIRCUMSTANCES SUGGESTIVE OF A THREAT In People v. Wright (2005) 35 Cal.4th 964 (“Wright”), this Court previously granted review to determine whether to extend the doctrine of imperfect self-defense to a case in which the defendant’s actual, though unreasonable, belief in the need to defend himself was based on delusions and/or hallucinations resulting from mental illness or voluntary intoxication, without any objective circumstances suggestive of a threat. (/d. at p. 966.) However, after examining the record in Wright, this Court concluded that it was unnecessary to decide the issue, because the defendant had suffered no prejudice, as he wasable to claim imperfect self-defense, the jury heard evidence supporting that defense, and the trial court’s exclusion of additional evidence supporting that defense was not prejudicial to defendant. (People v. Wright, supra, 35 Cal.4th at p. 966.) Subsequent to this Court’s ruling in Wright, one decision from the Court of Appeal addressed this question, and concluded that imperfect self- defense cannot be based on delusion alone. (People v. Mejia-Linares (2006) 135 Cal.App.4th 1437 (“Mejia-Linares’’).) The Fifth District Court of Appeal in Mejia-Linares held that to trigger application of this doctrine, there must also be some evidence of objectively reasonable circumstances that would support a defendant’s belief in the need to defend himself from imminent peril. bid.) The case at bar squarely presents the issue left open by this Court in Wright. In this case, appellant was, by all accounts, mentally ill, and there was substantial evidence that appellant experienced a psychotic, delusional episode during which time he committed a fatal stabbing based on the actual, though unreasonable, belief in the need to defend himself, without any objective circumstances suggestive of a threat. For example, in addition to his history of mental illness including schizophrenia, there was evidence that appellant actually, but unreasonably, believed there wasa violent situation at the time of the stabbing, that he was hit in the face and body with a crowbar immediately before the stabbing, that he was “cracked in the head,” that he fell to the ground from being struck, and that he responded by stabbing a person at a bus stop whodid not present any objective threat. (See Appendix A pp. 2-11; 6 R.T. pp. 2187, 2190-2191; 7R.T. pp. 2512, 2514; 8 R.T. pp. 3402-3406.) Based on this evidence, appellant requested his jury be instructed on voluntary manslaughter based on imperfect self-defense, but the trial court refused. (Appendix A p. 12; 8 R.T. pp. 3325, 3330; 9 R.T. pp. 3609-3613.) On appeal, appellant urged that the trial court erred in refusing the requested instruction on imperfect self-defense, and maintained that the doctrine of imperfect-defense should apply when a defendant kills in the actual, though unreasonable, belief in the need to defend himself when the mistaken belief is based on delusion and/or hallucination as a result of mental illness, without any objective circumstances indicative of a threat. (Appendix Ap. 12.) The Court of Appeal instead agreed with the decision in Mejia- Linares, and held that the doctrine of imperfect self-defense does not apply where the subjective belief in the need to defend oneself arises not from objective circumstances but purely from the defendant’s mental illness. (Appendix A p. 12.) Appellant respectfully requests this Court grant to review to decide this question of law left open in Wright. Moreover, appellant notes that unlike in Wright, if this Court were to grant review and decide that the defense applies, this case would involve prejudice, as demonstrated by both the evidence herein and the Court of Appeal’s reversal of appellant’s first degree murder conviction based on instructional error on the element of premeditation. (Appendix A pp. 13-19.) Finally, as will be set forth below, appellant respectfully urges that there are numerous reasons why Mejia-Linares was incorrectly decided, and that a defendant whokills in the actual, but unreasonable, belief in the need to defend himself purely as a result of delusion or hallucination should be entitled to rely upon the doctrine of imperfect self-defense. Initially, the plain language of Penal Code sections 28 and 192 support’s this conclusion. These sections provide in relevantpart: “Manslaughter is the unlawful killing of a human being without malice.” (Pen. Code § 192.) “Evidence of mental disease, mental defect, or mental disorder is admissible solely on the issue ofwhether or not the accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, whena specific intent crime is charged.” (Pen. Code § 28.) Consistent with this plain statutory language, evidence of mental defect, i.e. evidence of delusion or hallucination, may negate the malice aforethought element required for murder. There is nothing in the statutory scheme to require an additional finding that the defendant’s subjective belief due to mental defect was supported by some objective circumstances. Moreover, the Court of Appeal’s decision to additionally require objective reasonableness of a defendant’s subjective belief in Mejia-Linares hinged in part on failing to correctly interpret Flannel as having placed the imperfect self-defense doctrine outside the ambit of a reasonableness requirement. Asstated by the Court in Mejia-Linares: “We recognize that Flannel states: ‘No matter how the mistaken assessment is made, an individual cannot genuinely perceive the need to repel imminent peril or bodily injury and simultaneously be aware that society expects conformity to a different standard.’ ([People v.| Flannel [1979] 25 Cal.3d [668] at p. 679.) In our view, this statement does not render irrelevant the basis of a defendant's actual belief: it relied on the expanded mental component of malice construed and applied in People v. Conley [(1966)] 64 Cal.2d 310, which established the defense of diminished capacity. As the California Supreme Court has since recognized, this portion of Flannel’s reasoning is no longer valid due to the abolition of diminished capacity. Un re Christian S. [1994] 7 Cal.4th 768 at p. 777.) (People v. Mejia-Linares, supra, 135 Cal.App.4th at p. 1454.) However, this Court in Christian S. did not recognize that the above quoted portion ofFlannel’s reasoning was no longer valid becauseit related to the doctrine of diminished capacity. (See In re Christian S., supra, 7 Cal.4th at p. 777.) Rather, in Christian S., this Court recognized that Flannel’s recognition of the doctrine of imperfect self-defense was based on two independent premises, the prior concept of diminished capacity, and both the common law and statutory requirement of malice. (Jbid.) The fact that the Legislature later chose to abrogate the defense of diminished capacity negated Flannel’s prior premise, but had no affect on its latter which remains fully intact subsequent to the legislative amendment eliminating diminished capacity. (/bid.) Thus, the express language in Flannel stating that imperfect self- defense applies as long as the belief in the need to defend oneself is actual, “[njo matter how the mistaken assessment is made,” remains fully applicable. (People v. Flannel, supra, 25 Cal.3d at p. 679.) Also remaining goodlaw is Flannel’s express rejection of the Attorney General’s argument that an actual belief in the need to defend oneself, if unreasonably held, can be consistent with malice. (/bid.) There is further support for appellant’s position in the Flannel decision. As set forth in Justice Brown’s concurrence, “in Flannel by disconnecting imperfect self-defense from heat-of-passion manslaughter, we arguably disconnected it also from this long-standing reasonableness requirement....” (People v. Wright, supra, 35 Cal.4th at p. 982 (conc. opn. of Brown, J.).) “We separated these doctrines because imperfect self- defense by definition involves an unreasonable response to the circumstances (for otherwise it would be true self-defense), whereas heat- of-passion manslaughter requires a provocation that would arouse the passions of a “‘reasonable person.’ ” ({[People v. Flannel, supra, 25 Cal.3d at p. 678], italics added.) We believed these standards to be mutually inconsistent. ([bid.)” Ud. at p. 980.) Appellant urges that these standards are mutually inconsistent, and a reasonableness requirement should not be grafted upon the doctrine ofunreasonable or imperfect self-defense. The Mejia-Linares decision also reasoned that “section 28 has no impact on the imperfect self-defense doctrine. The court in Christian S. specifically found that the Legislature intended no change in the doctrine of imperfect self-defense when it enacted the 1981 legislation -- including section 28 -- that abolished diminished capacity.” (People v. Mejia-Linares, supra, 135 Cal.App.4th at p. 1455, citing In re Christian S., supra, 7 Cal.4th at p. 775.) This reasoning if flawed, however, because neither Christian S. nor the 1981 legislation rejected the applicability of section 28 to the imperfect self-defense doctrine. The portion of Christian S. referenced in Mejia-Linares is properly understood as answering in the negative the question of whether Legislative abolition of the diminished capacity defense abrogated the doctrine of imperfect self-defense. In re Christian S, supra, 7 Cal.4th at p. 775.) Christian S. and the Legislative amendment actually support the opposite proposition, namely, that the Legislature did not intend to require a defendant exhibit some level of reasonableness in order to support a voluntary manslaughter finding based on delusional self-defense. As stated in Christian S., “In abolishing the diminished capacity defense, the Legislature stated that except in the delusional self-defense kinds of cases, there will have to be a showing of provocation, the traditional basis of manslaughter, to reduce murder to manslaughter. (nm re Christian S., supra, 7 Cal.4th at p. 781, quoting from Letter from Joint Com. for the Revision of the Pen. Code to Governor's Deputy Legal Affairs Sect., Sept. 4, 1981, italics added.) Thus, both Christian S. and the Legislature expressly recognized the existence of delusional self-defense without any requisite showing ofprovocation, which is fully consistent with appellant’s position. The Mejia-Linares decision effectively dispensed with this legislative history, explaining that “{t]his statement does not persuade us that the Legislature intended imperfect self-defense to apply to cases where the defendant's actual belief is unsupported by any factual basis, since the legislative history suggests the Legislature did not focus on the question of imperfect self-defense.” (People v. Mejia-Linares, supra, 135 Cal.App.4th at p. 1455.) Appellant urges that the court’s reasoning is unpersuasive in light of a plain reading of the Legislative statement, and the lack of any legislative statements to the contrary. The Mejia-Linares decision further explained that Penal Code section 28 would be fully operable under its ruling because evidence of mental illness, if accompanied by other facts that would lead a reasonable person to perceive the need for self-defense, would still be admissible to 10 negate malice and support a claim of imperfect self-defense. (People v. Mejia-Linares, supra, 135 Cal.App.4th at pp. 1454-1455.) However, the language of section 28 does not state that other objectively reasonable evidence, in addition to an actual belief in the need for self-defense, whether such belief is based on delusion or otherwise, is required to negate malice. It says that evidence of mental illness may negate malice, and it appears that section 28 would be impermissibly altered, rather than effectuated, should the rule set forth in Mejia-Linares be allowedto stand. Indeed, a defendant who kills in imperfect self-defense because of mental illness alone appropriately lacks malice just as a defendant whokills because of mental illness and some other circumstance lacks malice. As the concurrence in Wright recognized, “[w]le can cite as a limitation on imperfect self-defense the long-standing objective requirement that it be ‘caused by the circumstances,’ [Citations] but doing so does not necessarily solve the problem of how, without a statutory provision, we can fictionally impute malice where there is no actual malice in the defendant's delusional inner world.” (People v. Wright, supra, 35 Cal.4th at p. 986.) The distinction drawn in Mejia-Linares would also arguably produce anomalous results in which more seriously mentally ill individuals who kill are faced with juries that may only choose between murder and exoneration, while the less seriously mentally ill, who kill based on delusion and some 11 additional objective fact, are aided by the middle road afforded by the imperfect self-defense doctrine. In support of its position, the Mejia-Linares decision also reasoned that “[t]o hold otherwise would undercut the legislative provisions separating guilt from insanity. Allowing a defendant to use delusion as the basis of unreasonable mistake of fact effectively permits him or her to use insanity as a defense without pleading guilty by reason ofinsanity ... If a defendant is operating under a delusion as the result of mental disease or defect, then the issue is one of insanity, not factual mistake.” (People v. Mejia-Linares, supra, 135 Cal.App.4th at p. 1456.) This particular reasoning is misplaced for two reasons. First, insanity is a term of art, and a lack of requisite mental state at the guilt phase ofa trial is not the sameasa finding ofinsanity at the sanity phase. (See, e.g., People v. Hernandez (2000) 22 Cal.4th 512, 520; People v. Saille (1991) 54 Cal.3d 1103, 1111-1112; Pen. Code, §§ 21, 28, 29.) Second, within Penal Code section 28, the Legislature expressly incorporated mental disease or defect within the guilt phase ofa trial. Thus, Mejia-Linares’ conclusion that such a mental illness question is appropriately reserved only for the sanity phase ofa trial is misplaced. Even if section 28 could somehow be deemed ambiguous, which it appears not to be at least with respect to whether evidence of mental illness 12 may negate malice in the guilt phase of a trial, it must be construed in appellant’s favor. “When language which is reasonably susceptible of two constructions is used in a penal law ordinarily that construction which is more favorable to the offender will be adopted.” Un re Christian S., supra, 7 Cal.4th at p. 779; People v. Stuart (1956) 47 Cal.2d 167, 175.) The Wright concurrence concludedthat “the only sensible solution, then,” to solve the conflict between the common law principal that reasonableness is an element of voluntary manslaughter and the holding from Flannel, “would be to correct the error we made over a quarter- century ago and once again locate imperfect self-defense within the statutory category of heat-of-passion manslaughter. The Legislature could easily correct our 1979 misstep by providing clear definitions of malice and imperfect self-defense, and I urge the Legislature to do so, thereby restoring coherence and common sense to California's homicide law.” (People v. Wright, supra, 35 Cal.4th at pp. 985-986.) Considering both the inherently unreasonable nature of imperfect self-defense, and the applicable statutory scheme, appellant respectfully urges that Flannel wascorrectly decided rather than being a misstep. Indeed, as a matter of policy, equity, and logic, it ultimately would be inappropriate to hold that a person who kills in the actual, but unreasonable belief in the need for self-defense because of a severe mental 13 illness that caused him to misperceive reality should be considered to have acted with malice, whereas a person who kills in the actual, but unreasonable belief in the need for self-defense for any other reason that caused him to misperceive reality, such as because he has moderate mental illness and poor physical vision, should be considered not to have acted with malice. Forall of the above reasons, appellant urges this Court grant review to settle this important question of law. CONCLUSION For the reasonsset forth above andin the interests ofjustice, appellant respectfully requests that this Court grant his petition for review. Dated: November 15, 2010 gE.as Dram Eric R. Larson Attorney for Defendant and Appellant Charles Elmore 14 CERTIFICATE OF WORD COUNT Pursuant to California Rules of Court rule 8.504, I, Eric R. Larson, hereby certify that according to the Microsoft Word computer program used to prepare this document, this Petition for Review contains a total of 3,146 words. Executed this J35eK day of November, 2010, in San Diego, California. a Eric R. Larson, SBN 185750 15 APPENDIX A Filed 10/27/10 P. v. Elmore CA2/7 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 opinionsnotcertified 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 SECOND APPELLATEDISTRICT DIVISION SEVEN THE PEOPLE, B216917 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA090607) V. CHARLES ELMORE, Defendant and Appellant. APPEAL from a judgmentofthe Superior Court of Los Angeles County. Arthur Lew, Judge. Vacated and remanded with instructions. Eric R. Larson, under appointment by the Court ofAppeal, for Defendant and Appellant. Edmund G. Brown,Jr., Attorney General, Dane R.Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent. Charles Elmore stabbed Ella Suggs to death at a bus stop. He appeals his conviction for first degree murder on the groundthat the jury should have had the option of convicting him ofvoluntary manslaughter based on imperfect self-defense arising from psychotic delusions. He further claimsthat the trial court should have instructed the jury concerning the effects of hallucinations on the elements ofpremeditation and deliberation. Because there was substantial evidence that Elmore washallucinating at the time of the killing, we vacate the judgment and remand the matter to the trial court with instructions. FACTUAL AND PROCEDURAL BACKGROUND Charles Elmore was, by all accounts, mentally ill. He had beeninstitutionalized on several occasions and diagnosed with schizophrenia and psychosis. As ofApril 2007, Elmore wasliving in a rehabilitation center. On April 29, he visited his grandmother in the late morning. Witnesses estimated his arrival as occurring between 10:00 a.m. and 12:30 p.m. or between 11:30 a.m. and 12:00 p.m. Elmore was fidgety and anxious. He did not seem like himself and was animated, antsy, and wild. His uncle, Sheldon Daniels, thought that Elmore appeared as if he were on PCP. Daniels’ girlfriend observed that Elmore did not sound rational. At one point, Elmore began to crawl under cars whenhis family and friend were trying to speak with him. Elmoreleft his grandmother’s home at 12:30 p.m. or perhapsas late as 1:00 p.m. The same day, Ella Suggs was going about her weekend routine: shoppingat a local thrift store and a grocery store. When she shopped, she wore a necklace with a charm in the shape ofa turtle with a small magnifying glass in the place of the turtle shell; this allowed her to examine closely potential purchases. She also wore reading glasses on a chain around herneck.' ! Neither Suggs’ turtle necklace nor her reading glasses were recovered from the scene or found amongherpossessions. Brandon Wilson was looking out the window in a restaurant around 1:00 p.m. and saw Suggs seated with a bag and a purseat a bus stop across the street. As he watched, Elmore walked past Suggs without stopping. Elmore stopped a distance away and looked in both directions, then returned to the bus stop. Elmore was not walking normally: he seemed to be holding up his pants. He did not appearto be talking to himself or to someone whowasnotthere. Elmore grabbed Suggs around the chest area and appearedto be pulling on something—Wilson thought he waspulling at a necklace. Suggs put her hands up to defend herself and then stood and tried to walk away. Elmore pushed her back down to a seated position. Elmore raised his hands together over his head and brought them down at Suggs’s chest area around the collarbone. After five to 10 seconds ofthis movement, Elmorefled, with a slow limp, looking around as he ran. Suggs stood, then fell immediately to the ground. Suggs had beenstabbed in the lower neck area with a paintbrush’ sharpenedto a point. The weapon penetrated six to seven inches, perforating one lung, puncturing her aorta, and entering her heart. This injury was fatal. Police respondedto a call about the incident at approximately 1:00 p.m. Wilson called the attention ofhis sister, Brittany Todd, to the bus stop. Todd saw Elmore running away with a limp in his run. Fifteen to 30 minutes later, they saw Elmore returning to the scene. Elmore approachedthe area of the bus stop with a puzzled look on his face, then ran in the other direction. Wilson alerted a security officer, who told the police that Wilson had seen Elmore, and Elmore was apprehended. Elmore resisted arrest, requiring four officers to subdue him. As Elmore struggled with the police officers—and before Elmore had been advised ofwhy he was being detained— Elmore said, “I didn’t do it.” Elmore’s behavior at the time of his arrest was sufficiently bizarre that he was placed on a psychiatric hold for evaluation. He was diagnosed as psychotic. Asof early 2 Paintbrushesofthis sort, although not sharpened to a point, were available to the residents of Elmore’s residential program. May Elmore continued to display bizarre behavior and affect, was uncooperative and illogical, and demanded two lemonadesanda pair of dress shoes and socks before he would answer doctors’ questions. Elmore was charged with murder and pleadednot guilty by reason of insanity. At trial, forensic psychiatrist Jack Rothberg opined that Elmore was schizophrenic and was psychotic at the time he stabbed Suggs. Rothberg based this conclusion on the incident itself, an interview ofElmore, and psychiatric records dating back to 2001. Rothberg believed that Elmore’s conduct in committing the crime demonstrated that he was psychotic at the time: “[T]he victim was a complete stranger, someone he had never met before. The attack, by all accounts, was totally unprovoked. [§] In my understanding, it does not appear that there was any other motive to commit the crime. His behavior subsequentto the stabbing involved him walking [a]way briskly and then kind of wandering back, even though there were people looking for him. He didn’t make a rational attempt to flee the scene completely. He went away and came back. [§] He wasvery agitated at the time that he was apprehended and appears to have been hospitalized, placed on a hold once he wasin custody.” Rothberg also relied on Elmore’s psychiatric history in forming his opinion. During a 2001 hospitalization at Olive View Medical Center, Elmore was considered gravely disabled: he demonstrated pooractivities of daily living; respondedto internal stimuli, meaning that he was seeing and hearing things that no one else could see; was paranoid; wasdisoriented and confused; and demonstrated impaired judgment. Elmore was medicated at that time with two antipsychotic medications, an anti-anxiety medication, and an antidepressant. In 2004 and 2005 Elmore wasa patient at Patton State Hospital with a diagnosis of schizophrenia, undifferentiated type, and antisocial personality disorder. His insight into his condition and thought processes were impaired, he required sustained psychiatric treatment, and his affect was inappropriate. According to the medical records, he was limited in his ability to provide daily care for himself, his thinking was disorganized, his speech incoherent, his impulse control poor, and he experienced paranoid ideations. Elmore was delusional. When Rothberg interviewed Elmore in 2008, more than one year after the incident, Elmore never reported having visual hallucinations; and in all the records Elmore had never claimed to experience visual hallucinations. However, Elmore described the incident to Rothberg by saying, “Two people beat the shit out ofme and I killed them.” Healso stated that these people had fled. Elmore denied hearing voices or being in a blackoutat the time. Elmore’s conduct and psychiatric history also included information suggesting that he wasat least at times able to try to usehis illness to his advantage. It was unclear to at least one doctor at Patton whether Elmore was experiencing the symptoms ofmental illness or whether he was exaggerating his impairment to avoid a criminal prosecution. He tended to exaggerate his disability for self-gain. During Elmore’s post-arrest hospitalization, the medical records included a note stating that Elmore asked for an evaluation so that he could show it to the judge and be sent to a psychiatric hospital rather than a jail. When asked what his symptoms were, Elmore answeredthat he heard voices. Heaskedfor a prescription medication to make him “a little crazy.” The doctor concluded that Elmore wanted a psychiatric diagnosis to assist him in his case. Forensic psychiatrist Kaushal Sharmatestified to his opinion that Elmore was schizophrenic but that there was no credible evidence that he was psychotic at the time of the stabbing. Sharmatestified that there was no evidence that Elmore was hallucinating at the time—Elmoredid not report hallucinations to him and there wasno indication that he reported hallucinations to the police or to Rothberg. Sharma put great emphasis on Elmore’s statements to the medical professionals asking for their help in making him “a little crazy,” which Sharma understood as “clearly show[ing] that he was trying to and wanted to fake mental illness.” When Sharmainterviewed Elmore, Elmore did not make any delusional statements about the victim. Because of their inconsistencies, he did not believe that Elmore’s conflicting accounts of the stabbing reflected delusions. Sharma acknowledgedthat at other times Elmore had claimed to have heard voices, but Elmore did not claim to have heard voices in the time frame surrounding the stabbing. Sharma had not been aware of the report of Elmore trying to crawl under cars on the day ofthe incident. A person with schizophrenia who was engaging in such behavior could be psychotic, Sharma stated. Sharma acknowledged that Elmore hada long history of respondingto internal stimuli, which canbe evidence of a psychotic state. He also acknowledged that within days of the incident Elmore had been diagnosed as psychotic while on his psychiatric hold. Elmore was placed on an antipsychotic medication but was observed nonetheless possibly to be psychotic, Sharma noted. Elmore told Sharmathat he wassitting at the bus bench when “they knocked the shit out ofme with a crowbar,”hitting him on the face and body. He did not know who hit him. He said he used the paintbrushto stab the person, but he could not or would not answer Sharma when Sharma asked who“the person” was. Sharmadid not understand Elmore to be saying that he was underattack by the victim: Sharmareported that Elmore “never said to me that the person, the woman, wasafter him or she said to him anything to him in any of the descriptions [of the incident] except he believes one time she said Mr. Elmore owed her money.” Sharmasaid that no matter how he asked about the “they” at the bus stop or what Suggs did—whethershe had a crowbar, whethershe hit, him, etc_—Elmore nevergavea straight answer. Elmoretestified in his own defense. He claimed that he cameinto the police department for a ticket and wassent to a mental hospital in 2001. When he wasat Olive View, they did not tell him what was wrong with him,just tied him downand “shot” him with medication. He described feeling “a little insane” and “messed up in the head”at that time. Elmore said that he went to Patton State Hospital because he hada stalking case, but he said that people lied about him and he was accused ofthings he had not done. Elmore acknowledged having paranoid schizophrenia, which he defined as “all the parts are crazy up above.” Turning to the stabbing, Elmoretestified that he had taken the bus to Compton. He could not remember whether he went anywhere in particular, saying he had blanked 6 out. He said, “I—went home [meaning his grandmother’s house] and got out and walked around and I was just walking around roaming, and then something happened—went wrong out there—outthere in the street.” Elmore repeatedly said “something went wrong out there in thestreet.” Elmore consistently failed to describe the events in detail, resorting to conclusory language in response to most questions. When asked what the problem was, Elmoresaid, “Somebody was saying something violent to me, and I didn’t really—it was something violent happening while I wasout there.” Counsel asked what violent thing happened, and Elmore responded, “Somebody said something. It was just violent.” Counsel asked who wasviolent, and Elmore just answered, “Well, when I was standing outthere.” Counsel pursued the question ofwho wasviolent, and Elmore said “Someperson out there,” and when asked whether the person was a man or a woman Elmoreclaimed not to know and to have blacked out: “The only thing I know something went wrong.” “What went wrong?” counsel asked. “Something—I mean—it was something wrong.” Elmore’s counsel asked if he knew he was being accusedofkilling someone. Elmore responded, “Yeah, somebody cracked mein the head while I was out there.”? Elmore’s counsel asked, “Did you kill somebodythat day?” Elmore answered, “Somebody—it wasnotintentionally. Somebody had to do something in order for me to just do something intentionally.” Elmore denied having the paint brush with him: “I picked it up somewhereafter I was—for a person to just do what—I mean I—something happened out there wrong and, you know,I just—I wouldn’t just do nobody intentionally.” 3 Immediately after this statement, the court said it would “sustain the objection on relevancy grounds,” but the most recent objection in the record wasto the previous question. The court, however, had already sustained an objection to the previous question and stricken the response, which wasnearly identical to the question posed here, so althoughthe recordis unclear, it may be that an objection is missing from the record or that the court wasanticipating an objection that the prosecutor was beginning to make. Wesimply cannottell. The court, however, did notstrike this answer. 7 Elmoresaid that he had seen a black woman about 50 years old (presumably Suggs) come up to him at the bus stop. Hesaid he was about to drink a beer he had “and somebody—somebodysaid something, and, you know, one word led off to another.” Whenasked what they said to him, Elmore answered, “Take it somewhere else. I don’t know.” Counsel asked if that statement bothered him, and he said, “It was more than take it somewhereelse. It was violent, so you know.” “What was the violence?” counsel asked. “It was just violent. I don’t know. I blanked out. I don’t know. I just hit the ground somewhere andgot up andjust got out of anger and did something.” He repeated, “Yeah,it was out of anger I did something. I didn’t do it intentionally.” Counsel asked if the woman at the bus stop did something violent to him, and he said, “Violent—I don’t know if violent. It had to be for me to just do what I had to do.” “What did you have to do?” said Elmore’s counsel. “I mean, I picked something off the ground and just—anddid whatever possible.” Elmore continued,“I didn’t kill nobody intentionally. I mean, I’ve been lied on, shit.” Counsel turned to the stabbing: “Did you pick that paint brush off the ground?” Elmoresaid, “Yeah, I made an object.” “What wasit?” counsel asked. “I made an object after I was out on the ground dazed somewhere. After I was on the ground or whatever. Howeverit happened.” Elmore said that he used the object but did not elaborate further on how heused it. Whenaskedifhe stabbed someone with it, he responded, “I suppose.” Counsel asked whohe stabbed and Elmoresaid, presumably indicating Suggs’s daughter who waspresentin court that day, “They say her mother.” Counsel pressed: “Did you?” “T guess,” Elmoresaid. When asked whyhe stabbed Suggs, Elmore answered, “Person said something and did something to me, I didn’t just go do it to be doingit.” Counsel asked what she had done to Elmore, and Elmore refused to answer: “It don’t matter. It don’t benefit me.” Elmoredenied taking anything from Suggs. Elmore also did not appear to believe that he had done anything that merited his arrest, as he complained that when hestarted to go back to drink his beer, the police picked him up and “lied on me.” Looking at a photograph of Suggs, Elmore denied seeing her on the day ofthe stabbing, but then said he did not know if she was the lady who said something to him. Whenaskedifhe stabbed her, he said, “I mean, I had something said to me—ordid for me just to do something, but not intentionally.” Counsel asked why hedid it, and he answered, “Whydid I do it? I was minding my own business where I wasat, and somebody said something to me right out there. I mean, it wasn’t intentionally. Whatever happened out there. I had to be provokedjust to just do something.” Counsel asked if something had provoked Elmore, and he said, “I was scared. I mean, it happenedintentionally. I was scared.” Counsel asked what Elmore wasafraid of, and Elmore said, “I mean, what done happened to me. I was scared and paranoid and just—I wasreal scared.” “Scared of what?” counsel asked. Elmore responded, “What done happened to me after—not me—just being scared.” Counsel askedifhe wasafraid something bad was going to happen to him, and Elmore answered: “Something already did bad happen to meso, you know,I took precaution into my—into my—Itookit into— I didn’t really—I took it into my handsandit led meinjail, but it wasn’t intentionally. Whatever happened to meout there, you know, I was—it wasn’t intentionally. I was scared, and I just whatever happened, I did whatever was possibly—I mean, got up and just—wasout on the ground somewhere, and I just got up and did something real—real intentionally. It wasn’t intentionally.” Elmore denied intending to kill Suggs. Counsel asked once more, “Were you afraid of that lady?” and Elmore answered,“WasI afraid? Can’t answerthe question.” On cross-examination, Elmore was asked about the paintbrush. Hesaid, “After I got into an incident, I seen it on the ground and made one. After I got into it—whatever happened to me out there onthe streets.” He said he found it by the bus station. When asked whether he was the one whosharpenedthe brush into a point, he respondedthat he found the brush. When asked again whether he had sharpenedit, he said he could not recall and that he “done blanked out.” When the prosecutor began to ask about the day of the stabbing, Elmore began to complain abouthis attorney not representing him right. Responding to questions once again, Elmore denied feeling mad for more than a minute when heleft his grandmother’s house. The prosecutor was no more successful than Elmore’s counsel had been at eliciting a coherent accountofthe stabbing from Elmore. Elmore said that when he was at the bus stop, “They said something to me.” The prosecutor attempted to ask him about his assertion that someoneat the bus stop told him to take it—presumably panhandling or bus token sales he was engaged in—somewhereelse, and he went backto his assertion that “Someone said something to me violent.” Elmore denied asking Suggs for money or trying to sell her a bus token, and he denied being angry that she would not give him money. Elmoresaid, “Somebody said something—did something to me violent. I got scared, and out of fear, it was reaction. I blanked out.” The prosecutor said, “You blanked out, and because you blanked out you can’t tell us what you did; is that right?” and Elmore said that he wasin fear and traumatized. The prosecutor asked whichit was—washeblacked out and unable to recall anything, or did he know that he was afraid? Elmore answeredthat he wasreally scared. Elmore admitted that he made the paintbrush into a weapon “after I got up. I was mad and scared,”then said he did not know if he had madeit and that he thought he pickedit up like that. He admitted that he usedit to stab Suggs, but claimed it was not intentional. He denied stabbing her because he wastryingto steal her necklaces, stating that he did not steal, at which point he was confronted with his prior conviction for felony grand theft person. Elmore acknowledged that he understood that stabbing a person with a paintbrush would hurt the person andthat the person could die. The prosecutor asked what Elmore meant about not doing anything intentionally—did he mean that he did not intendto kill her, or he did not intend to stab her? Elmoresaid, “I got into it—in order for me to really just do it—I was out there enjoying myself and somebodysaid something violent—did something. And I just found it and madeit and used it—and used the mother fucker— used the thing.” Elmore claimed, “I was provoked. Something happened out there on Sunday ....” The prosecutor asked if he was maintaining he was provoked, and Elmore 10 responded, “Something happenedthat day to me, and I got violent.” He continued,“I was provoked and something happenedout there. It was more than just you saying something to me for order for me just to just drive something through somebody’s heart. I made it somebody—it wasn’t intentionally. I just sit there and go get up and do something.” Elmoresaid that if he had had a gun, he “probably would have shot the mother fucker.” He said he did not know where on her body he stabbed Suggs. “After I was violent and something happened,I just picked it up and got up anddidit out of anger. Whatever happened to me out there, I was scared and did it out of anger.” He said he was “more than provoked.” “The only thing I did,” he claimed, “is got violent and stuck the person after what they did to me.” The prosecutor tried once moreto elicit Elmore’s account. After Elmore again claimed that “Something happened to me for me to stab somebody,” she responded, “But you can’t tell us what it is that happened to you?” Elmore said, “I done been lied on, so I ain’t worried aboutit.” Attrial, Elmore’s counsel requested that the jury be instructed with CALCRIM Nos. 571 [voluntary manslaughter based on imperfect self-defense], 627 [hallucinations impacting degree of murder], and 3406 [mistake of fact]. The court refused each instruction. The jury was instructed with CALCRIM No. 3428, which told the jury to consider the evidence of Elmore’s mentalillness for the purpose of deciding whether at the time of the offense Elmore acted with malice aforethought andthe intent to permanently deprive Suggs of her property. Elmore was convicted offirst degree murder. After the guilt phase ofthetrial, against the advice of counsel, he withdrew his plea ofnot guilty by reason of insanity and proceededto sentencing on the murder conviction. He was sentenced to 25 yearsto life in prison. Elmore appeals. 11 DISCUSSION IL. Absence of Voluntary Manslaughter Instructions Elmore contends that his conviction should be reversed because the jury was not offered the opportunity to convict him ofvoluntary manslaughter based on imperfect self- defense due to delusions. The doctrine of imperfect self-defense, however, does not apply where the subjective belief in the need to defend oneself arises not from objective circumstancesbut purely from the defendant’s mentalillness. (People v. Mejia-Lenares (2006) 135 Cal.App.4th 1437.) Imperfect self-defense “is predicated upon negligent perception of facts, not, as in the case of a delusion, a perception of facts not grounded in reality. A person acting under a delusion is not negligently interpreting actual facts; instead, he or she is out oftouch with reality. That may be insanity, but it is not a mistake as to any fact.” (/d. at pp. 1453-1454; see also People v. Wright (2005) 35 Cal.4th 964, 982 [conc. opn. of Brown,J.] [imperfect self-defense must be measured against some minimum objective standard to be consistent with case law requiring objective reasonableness to negate malice].) Thetrial court, therefore, properly declined to offer the jury the option of convicting Elmore ofvoluntary manslaughter based on imperfect self-defense, and properly instructed the jury that it was required to determine whether or not Elmore actually formed the specific intent necessary for murder. (People v. Saille (1991) 54 Cal.3d 1103, 1116-1117 [if “a crime requires a particular mentalstate the Legislature may not deny a defendant the opportunity to prove he did not possessthat state”].) The impact ofElmore’s mental illness would have been considered by the jury in thetrial’s sanity phase. Unfortunately, immediately before the sanity phase would have begun, Elmore exercised his right to withdraw his plea of not guilty by reason of insanity. By so doing, Elmore precluded the consideration of the extent of and impact of his mental illness on his ultimate criminal culpability. 12 I. Failure to Instruct with CALCRIM No. 627 When Elmore requested that the jury be instructed with CALCRIM No.627, which would havetold the jury that evidence of hallucination can negate the elements of premeditation and deliberation that are required for first degree murder,thetrial court denied the instruction on the basis that although there was evidence that Elmore may hallucinate at times, there was no evidence that Elmore washallucinating at the specific time of the crime. A trial court must give a requested instruction concerning a defense if there is substantial evidence to support the defense. (People v. Mentch (2008) 45 Cal.4th 274, 288 (Mentch).) On appeal, we “ask only whether the requested instruction was supported by substantial evidence—evidencethat, if believed by a rational jury, would have raised a reasonable doubt as to whether” Elmore’s killing of Suggs was premeditated and deliberated. (/bid.) We have reviewed the record and concludethat there was substantial evidence from which the jury could have inferred that Elmore was hallucinating andthat thetrial court should have instructed the jury with CALCRIM No.627. CALCRIM No.627assists a jury in considering evidence that a defendant was hallucinating when the jury determines whether the defendant acted with deliberation and premeditation. (CALCRIM No. 627.) It potentially negates the premeditation element of first degree murder and reducesa first degree murder to second degree murder. (People v. Padilla (2002) 103 Cal.App.4th 675, 677 (Padilla).) The instruction reads, “A hallucination is a perception not based on objective reality. In other words, a person has a hallucination whenthat person believes that he or she is seeing or hearing [or otherwise perceiving] something that is not actually present or happening. [{] You may consider evidence of hallucinations, if any, in deciding whether the defendant acted with deliberation and premeditation. [{]] The People have the burden ofproving beyond a reasonable doubt that the defendant acted with deliberation and premeditation. If the People have not met that burden, you must find the defendant not guilty offirst degree murder.” (CALCRIM No. 627.) 13 Certainly there was evidence that Elmore hada history of hallucinations: his records from the 2001 and 2004-2005 hospital stays were replete with indicia that Elmore was respondingto internal stimuli. We agree with the trial court that due to their remoteness in time, these records are not particularly relevant to the question of hallucinations in 2007 beyond revealing the longstanding nature, characteristics, and gravity of Elmore’s mentalillness. But Elmorealso offered substantial evidence of his mental state on the day of the incident. He presented the evidence ofthose who observed him on that day both shortly before and shortly after the stabbing, as well as expert psychiatric opinion that he was schizophrenic andin a psychotic state at the time he stabbed Suggs. Defense psychiatrist Rothberg testified that persons who are paranoid schizophrenics “by definition . . . have a paranoid psychosis so that they misinterpret the motives of others and perceive things in waysthat are not based onreality.” Their judgment, perception, and ability to be rational are impaired. “They may perceive things that we don’t see?” asked Elmore’s counsel. “By definition they do,” answered Rothberg. According to Rothberg’s testimony, by definition, if Elmore was experiencing paranoid schizophrenia and psychosis, he was experiencing perceptions that were not based on objective reality—the definition of hallucinations in CALCRIM No. 627. Through the testimony ofElmore’s grandmother, uncle, and uncle’s girlfriend, Elmore presented evidence from which the jury could have concluded that when those witnesses saw him between 10:00 a.m. or 11:00 a.m. and 12:30 p.m. on the day ofthe stabbing, Elmore wasin the state described above by Rothberg and was responding to internal stimuli rather than to reality. When Elmorevisited his family, he was acting bizarrely: he was excited and agitated. Elmore’s uncle’s girlfriend, Deniece Bonner, said that she thought Elmore was under the influence of a drug or alcohol. (Toxicology reports showed that Elmore was not on drugsat the time of the incident.) Elmore’s uncle, Daniels, was more explicit: he thought that Elmore wasacting as if he were on PCP, a drug which, Sharmatestified, “essentially makes a wild beast of a normal man.” Sharma testified that based on his knowledge ofhow people underthe influence ofPCP act, that 14 acting as though were on that drug would “very likely” be evidence of an auditory hallucination. Elmore’s behavior deteriorated during the visit. At one point he left the house and the family chased after him by car and on foot “because he was kind oflike being wild” and they were concerned about him. He was speaking, but they could not make any sense of his words: “Just, you know,kind oflike talking, not really making much sense that we could makeof. [§]] You know, I don’t know what was going through his head. But the wordsthat were coming out of his mouth,it didn’t sound, you know,rational.” When Bonnerand Elmore’s grandmother located Elmore, he wasin a church parking lot. As they tried to speak with him, Elmore began crawling underthe cars in the parking lot. Even the prosecution’s expert witness testified that a person whois schizophrenic and described as acting like he is on PCP, acting weird, crawling under cars, could be in the midst of a psychotic episode. Crawling undercars to get away from one’s family, Sharmatestified, “can be a behavioral manifestation of auditory hallucination.” Elmore’s family was able to coax him to return to his grandmother’s house, but he left soon after, at 12:30 p.m.or a little later. Within half an hour he had killed Suggs—he wasseen stabbing her at approximately 1:00 p.m., and the police respondedto callat about that time. Elmore wasarrested within 15 minutes to half an hourafter the stabbing, and the gravity of Elmore’s mental impairment became apparent immediately. When Elmore wastaken for medical treatment after the April 27 arrest, a doctor noted his “bizarre affect.” Sharma conceded this was evidence of psychosis. The notes from the hospital describe Elmore as behaving bizarrely on the day of the incident. Elmore wasplaced on a psychiatric hold on April 30 and was observed on that day to be gravely disabled and unable to remain linear in conversation, other behaviors that Sharmatestified were consistent with psychosis. The May 1 medical notes indicated that Elmore was exhibiting bizarre behavior, claiming that he was suffering from heat stroke and displaying inappropriate affect, also observed by Sharmato be evidence of psychosis. As 15 Rothberg explained, “It’s what he’s not complaining ofthat’s critical. He has some other explanation for his bizarre behavior that’s not a mental one.” On May 2, Elmore was diagnosed as psychotic. Notes concerning the expiration of the psychiatric hold state that during the hold, Elmore wastreated with Risperdal, an antipsychotic medication, but may have been psychotic despite this treatment. On May 7, Elmore wasobservedto be continuing to exhibit bizarre behavior and affect and could not provide logical responses; he was paranoid anddelirious. Althoughlittle can be derived from Elmore’s testimony and statements, for he rambled, provided no coherentnarrative, and relied on conclusory assertions as opposed to describing his perceptions and experiences, there is also some evidence in Elmore’s statements that is consistent with his theory of hallucinations. Elmore told Rothberg that what happened wasthat “‘Two people beat the shit out ofme and I killed them.’” He also asserted that “[S]omebody cracked mein the head while I was out there.” Elmore said he stabbed Suggs because, “Person said something and did something to me, I didn’t just go doit to be doingit.” Weconclude that Elmore produced evidence which,if believed by the jury, would have permitted the jury to infer that Elmore was hallucinating when he stabbed Suggs: Elmore offered substantial evidence that he was a paranoid schizophrenic and psychotic at the time ofthe killing, and he also presented evidence that people with this condition, by definition, perceive things that others do not see. Even Sharma, whobelieved that Elmore was not psychotic at the time of the crime, admitted that a number ofElmore’s behaviors on the day ofthe stabbing were evidence ofpsychosis and/or indicative of a person respondingto auditory hallucinations. Although there was also evidence from which the jury could conclude otherwise, from this evidence ofElmore’s behavior and mental state both immediately before and after the crime the jury could have inferred that Elmore was hallucinating when he stabbed Suggs. The jury, therefore, should have been instructed in how to consider hallucinations with respect to the element ofpremeditation and deliberation that was necessary to convict him offirst degree murder. (Mentch, supra, 45 Cal.4th at p. 288 [the trial must consider the evidence presented in thelight 16 most favorable to the defendant, in determining whether it could establish an affirmative defense].) The People contendthat anyerrorin failing to instruct the jury with CALCRIM No. 627 was harmless because the jury was instructed with CALCRIM No. 3428, which tells the jury that it may consider the defendant’s mental defect with respect to determining whether he formed the requisite mental state ofmalice aforethought, or, because of the felony murdertheory here, intent to permanently deprive another ofhis or her property. CALCRIM Nos. 3428 and 627, however, are not interchangeable or even particularly similar: while both instructions address mental impairments, the similarity stops there. CALCRIM No. 3428 guides the jury in deciding whether the defendant had the requisite mental state: that is, as used here, whether Elmore harbored malice or had the specific intent to commit robbery (for the felony murder theory). This permits the defendantto present the defense that because of his mental impairment, he did not actually form the specific intent necessary for the commission of a crime. The specific intent to commit an act that is a crime, however,is distinct from the element of deliberation and premeditation that is necessary for a murderto bein thefirst degree, rather than the second degree. CALCRIM No.3428 offered no guidanceto the jury in evaluating how to consider the evidence ofElmore’s “hallucinations,if any, in deciding whetherthe defendant acted with deliberation and premeditation.” (CALCRIM No. 627.) Because it covered a separate subjectentirely, the fact that CALCRIM No. 3428 was given does not rendertheinstructional error harmless. In fact, the giving of CALCRIM No. 3428 may have compoundedthe problem arising from the failure to instruct the jury with CALCRIM No. 627. CALCRIM No. 3428 stated that evidence of Elmore’s “mental defect” could be considered “only for the limited purpose of deciding whether” Elmore acted with malice orthe intent to rob. This instruction directed jurors that even if they credited the evidence that Elmore was hallucinating, they could consider that evidence for no purpose beyond determining whether he had malice aforethought or the intent to rob Suggs. Therefore, they were not permitted to consider whether Elmore was hallucinating when they decided whetherthe 17 murder wasofthe first or second degree. CALCRIM No.3428, while properly given for other reasons, did not remedy the problem here. The People also argue that the error was harmless because Elmore’s “intent to kill” was established by the fact that he committed an “unprovokedattack with a sharpened paintbrush on a defenseless woman.” Elmore’sintent to kill, or malice, relates to whethera killing is murder, manslaughter, or, under the circumstances here where mentalillness is involved, not a criminalkilling. It is irrelevant to the determination of whether Elmore killed Suggs with premeditation and deliberation. Because evidencethat a defendant was hallucinating can “negate deliberation and premeditation so as to reduce first degree murder to second degree murder” (Padilla, supra, 103 Cal.App.4th at p. 677), the fact that the jury wasnot instructed on how it could use that evidence is not made harmless by the People’s assertion that Elmore intendedto kill. The People next contend that the error was harmless because the evidence of Elmore’s “guilt” was overwhelming. That Elmore killed Suggs was uncontested, but the fact that he committed the killing does not make superfluousajury instruction that would have guided the jury in determining what crime was committed: whether Elmore acted with deliberation and premeditation. The evidence ofwhether Elmore washallucinating at the time ofthe stabbing wasfar from overwhelming—andtwopsychiatrists each arrived at thoroughly reasoned and supported, but opposing, conclusions abouthis condition based on the same evidence. The People similarly argue that the error was harmless because “Dr. Sharma said that appellant’s prior statements clearly showed that he was feigning mental illness and malingering.” The fact that if the jury believed Sharma’s testimony it would have rejected Elmore’s planned defense that he did not premeditate or deliberate Suggs’s killing has no place in this analysis. Provided that the evidenceis sufficient to permit a reasonable jury to conclude that the specific facts supporting the instruction exist, we assess a defendant’s entitlement to an instruction by taking the proffered evidenceastrue, regardless of whether it was of a character to inspire belief. (People v. Petznick (2003) 114 Cal.App.4th 663, 677.) 18 The parties disagree as to whetherthe error should be judged under a Watson or Chapman standard for harmlessness, but we need not resolve that question, for under either standard the error cannot be said to be harmless. (People v. Watson (1956) 46 Cal.2d 818, 836; Chapman v. California (1967) 386 U.S. 18, 24.) Ifthe jury had been instructed that it could consider hallucinations in evaluating whether Elmore killed Suggs with premeditation and deliberation, the evidence could well have persuaded the jury to find that his hallucinations resulted in his having committed nota first degree murder but a second degree murder. Therefore, a more favorable result was reasonably probable in the absence of the error and we cannotdeclare this error harmless beyond a reasonable doubt. DISPOSITION Wevacate the judgment of conviction of first degree murder and remand the matterto the trial court with directions. If the prosecutorfiles a written election to try Elmore on a chargeof first degree murder within 60 days after the filing of the remittitur in the trial court and if Elmoreis “brought to trial within 60 days . . . after the filing of the remittitur in the trial court,” the trial court shall proceed accordingly. (§ 1382, subd. (a)(2).) Otherwisethetrial court shall enter a judgment of conviction of second degree murder and sentence him accordingly. (See In re Bower (1985) 38 Cal.3d 865, 880.) ZELON,J. Weconcur: PERLUSS,P.J. JACKSON,J. 19 Eric R. Larson, #185750 Court of Appeal No.: B216917 330 J Street, # 609 Superior Court No.: TA090607 San Diego, CA 92101 DECLARATION OF SERVICE BY MAIL I, Eric Larson, declare as follows: I am overthe age of eighteen (18), a citizen ofthe United States, am employed in the County of San Diego, and nota party to the within action. My business addressis 330 J Street, #609, San Diego, California, 92101. I further declare that I am readily familiar with the business’ practice for collection and processing of correspondencefor mailing with the United States Postal Service. Correspondence so collected and processed is deposited with the United States Postal Service that same dayin the ordinary course of business. On this 15th day ofNovember, 2010, I caused to be served the following: PETITION FOR REVIEW of which a true and correct copy of the document(s) filed in the causeis affixed, by placing a copy thereof in a separate sealed envelope, with postage fully prepaid, for each addressee named hereafter, addressed to each such addressee respectively as follows: California Appellate Project Clerk, Los Angeles Superior Court 520 S. Grand Avenue, 4" Floor 200 W. Compton Blvd. Los Angeles, CA 90071 Compton, CA 90220 Office ofthe Attorney General Office of the District Attorney 300 S. Spring Street 200 W. Compton Blvd, 7th Floor Los Angeles, CA 90013 Compton, CA 90220 Charles Elmore Second District Court of Appeal North Kern State Prison Division Seven D5-110 300 S. Spring Street P.O. Box 5005 Floor 2, N. Tower Delano, CA 93216 Los Angeles, CA 90013-1213 I declare under penalty of perjury under the laws ofthe State of California that the foregoing is true and correct. Executed on November15, 2010, at San Diego, California. bee Bape Eric Larson