Filed 9/29/15 P. v. Smallen CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E060839
v. (Super.Ct.No. SWF1200448)
KURT ALEXANDER SMALLEN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Angel M. Bermudez,
Judge. Affirmed in part; reversed in part with directions.
Ron Boyer, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Susan Miller,
Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant and appellant Kurt Alexander Smallen appeals his conviction for
willful, deliberate and premeditated attempted murder and assault with a deadly weapon.
His principal contention is that his attempted murder conviction must be reversed
because, despite evidence to support it, the trial court failed to give an instruction on
unconsciousness. We conclude that even if we assume that there was substantial
evidence in support of such an instruction, the court had no sua sponte duty to give the
instruction because it is clear from the record that the defense chose not to rely on the
defense of unconsciousness.
PROCEDURAL HISTORY
A jury convicted defendant of willful, deliberate and premeditated attempted
murder and assault with a deadly weapon. (Pen. Code, §§ 664, 187, subd. (a), 245,
subd. (a)(1).)1 The jury also found it true that defendant personally used a deadly
weapon (§ 12022, subd. (b)(1)) in the commission of the attempted murder and that he
personally inflicted great bodily injury (§ 12022.7, subd. (a)) in the commission of both
offenses. The victim of both crimes was identified as Jane Doe.
The court sentenced defendant to a term of seven years to life2 in prison for the
attempted murder, and imposed and stayed the assault sentence pursuant to section 654,
1 All further statutory citations refer to the Penal Code unless another code is
specified.
2 As we discuss below, the only authorized sentence for attempted murder is life
in prison with the possibility of parole. (§ 664.)
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subdivision (a). The court imposed consecutive terms of one year and three years,
respectively, for the weapon use and great bodily injury enhancements.
Defendant filed a timely notice of appeal.
FACTS
On February 2, 2012, defendant, then 19 years old, stabbed and slashed Jane Doe
multiple times with a pocket knife. Doe had been walking and jogging on a hiking trail
in the neighborhood where both she and defendant lived. Doe did not know defendant
and had never seen him before. Defendant approached Doe from the opposite direction,
then turned and walked behind her, at first at a distance of 30 to 50 yards. He passed her
on a hill, then fell behind and walked behind her again for some distance. Doe heard
someone running up behind her and then felt a knife stab her left shoulder and then her
back. She turned and looked defendant in the face. Defendant said nothing but smiled
and continued striking at Doe with the knife as she attempted to block the blows with her
arms. Doe said that defendant appeared to be “whacked out” or “crazy.” Doe saw
William Dennick riding toward them on a bicycle. She fell to the ground to attract
Dennick’s attention, and defendant turned and ran. Dennick, who was then studying to
become an emergency medical technician, tended to Doe and called 911.
Ric Van Der Linden, who lived in a house adjacent to the trail, heard screaming
and saw defendant running away as Dennick rode up on his bicycle. Defendant took off
his shirt as he ran. Van Der Linden got on his bicycle and pursued defendant. Defendant,
who had been sprinting when Van Der Linden first saw him, was slowing down by the
time Van Der Linden caught up with him. Van Der Linden yelled something like, “Hey,
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what’s going on here?” Defendant responded, “What?” His tone was “kind of” innocent,
and he appeared startled. Defendant said that someone had attacked a woman and that he
was going to get help. Defendant continued to jog, but Van Der Linden eventually cut
him off with his bicycle and told him to stop. Another person on a bicycle and someone
in a truck helped detain defendant.
After he was detained by Van Der Linden and the others, defendant sat motionless
on the curb. He didn’t say much. He was bloody and looked like he had been in a fight.
When sheriff’s deputies arrived, defendant appeared dazed. They handcuffed him and
walked him to the patrol car without incident. Defendant had a folding knife in the
pocket of his shorts.
LEGAL ANALYSIS
1.
DEFENDANT WAS NOT PREJUDICED BY THE COURT’S FAILURE TO
INSTRUCT THE JURY ON UNCONSCIOUSNESS
A person who “committed the act charged without being conscious thereof” is
legally incapable of committing a crime, as long as the unconsciousness was not
voluntarily induced. (§ 26, par. Four; see § 29.4, subd. (a); People v. Rogers (2006) 39
Cal.4th 826, 887.) Legal unconsciousness “does not mean that the actor lies still and
unresponsive. Instead, a person is deemed ‘unconscious’ if he or she committed the act
without being conscious thereof.” (People v. Haley (2004) 34 Cal.4th 283, 313.)
Defendant contends that there was substantial evidence that he was unconscious during
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the attack on Jane Doe and that the trial court had the duty to instruct on the defense of
unconsciousness despite his failure to request the instruction.
Defendant presented the following evidence: Defendant had been a star athlete in
Temecula from grade school through high school. He was passionate about baseball, and
he was a model student, well-behaved and not prone to lose his temper. He began to
experience difficulties during his first year in college. He had a baseball scholarship, but
his playing deteriorated and his grades, which were excellent in his first semester,
declined. At the end of his third semester, he dropped out and returned home. Shortly
before the attack on Jane Doe, defendant had an argument with his mother, who was
upset that he appeared not to be attending classes at a local community college, as they
had agreed he would.
The day after his arrest, defendant was examined by a doctor, who diagnosed him
as paranoid schizophrenic.3
A clinical psychologist retained by the defense, Dr. Kania, interviewed defendant
twice in April 2013, for a total of over six hours. He reviewed the videotape of
defendant’s interview with detectives, reviewed police reports and medical records from
the jail, and administered the Minnesota Multiphasic Personality Inventory (MMPI), a
standard psychological assessment tool. Dr. Kania noted that during defendant’s
interview with detectives shortly after his arrest, defendant was emotionally flat
(“[E]verything was kind of at a monotone”) and that he appeared to be struggling to
3 Schizophrenia typically first manifests in people in their late teens through
early 20’s.
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understand what he had done. Dr. Kania was aware that defendant had been diagnosed as
paranoid schizophrenic the day after the attack, but he did not reach a formal diagnosis
himself. He concluded instead that defendant had suffered a brief psychotic episode.
Dr. Kania questioned defendant at length about his personal history and his
family. He also questioned him closely about the events leading to the charged offenses.
He found defendant’s responses to the MMPI to be consistent with what defendant told
him, and found no evidence that defendant was malingering, or seeking to gain an
advantage by claiming a mental defect. Dr. Kania’s assessment of defendant was that he
has trouble understanding his emotions and being aware of them, and that in stressful
periods, defendant might decompensate or regress. He said that people with defendant’s
profile are likely to experience periods when they may “lose track of what’s going on,
become briefly psychotic and have problems with impulse control during those periods
when you just kind of can’t hold it together for whatever reason, usually some form of
stress or some loss of support of some kind.” Dr. Kania testified that defendant’s flat
affect during and immediately after the incident and the fact that he sat motionless and
did not speak were consistent with a person who was experiencing a psychotic episode.
Defendant found it very stressful to be living at home again; he felt that his parents were
making unreasonable demands. He also appeared to be having an identity crisis.
Dr. Kania opined that the circumstances “were the type that could have resulted in a
psychotic episode during which a person may have become disoriented and impulsive
and could have struck out aggressively without full awareness or control of his behavior.”
He also stated that in a psychotic state such as he believed defendant experienced, “a
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person who was normally able to control their behavior might not be able to control their
behavior.” He stated that defendant “gave some indication of what’s known as a
dissociative reaction. So he wasn’t aware of what he was doing at the time.”
As with any other defense, a trial court must instruct on unconsciousness on its
own motion if it appears the defendant is relying on the defense, or if there is substantial
evidence supporting the defense and the defense is not inconsistent with the defendant’s
theory of the case. (People v. Rogers, supra, 39 Cal.4th at p. 887; see generally People v.
Breverman (1998) 19 Cal.4th 142, 157.) We will assume, without deciding, that
Dr. Kania’s testimony does constitute substantial evidence that defendant was
unconscious when he attacked Jane Doe. However, the record shows that the defense did
not rely on unconsciousness and that doing so would have negated its strategy.
Unconsciousness is a complete defense, not only to murder or attempted murder,
but to any offense. (People v. Rogers, supra, 39 Cal.4th at p. 887.) The defense chose,
as a matter of tactics, to concede that defendant committed the lesser offense of assault
with a deadly weapon, thus giving the jury the option of acquitting him of attempted
murder while still finding him guilty of a serious felony. In furtherance of this strategy,
defense counsel argued that Dr. Kania’s testimony and other evidence compelled the
conclusion that defendant did not form the intent to kill and that he did not premeditate
the attack on Jane Doe. Although, as defendant states, defense counsel argued that in his
psychotic state, defendant was not aware of what he was doing, the point she was making
throughout her argument was that he did not form the intent to kill and did not
premeditate or deliberate. She did not argue that he was unconscious. And, counsel
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argued that the mental state defense she relied on does not apply to assault, because
assault is a general intent crime. She told the jury that if it found that defendant did not
form the intent to kill, “what we’re left with is assault with a deadly weapon, great bodily
injury, personal use of a knife.” She asked the jury to find him guilty of that offense.
Accordingly, because the defense did not rely on unconsciousness, the trial court did not
have a duty to instruct on that defense. (People v. Rogers, supra, 39 Cal.4th at p. 887.)
A trial court also does not have a sua sponte duty to instruct on a defense which is
inconsistent with the defense theory of the case. (People v. Salas (2006) 37 Cal.4th 967,
982.) On the contrary, the defendant has the right to determine the defense or defenses he
wishes to rely on. (People v. Breverman, supra, 19 Cal.4th at p. 157.) If the court
believes that the evidence supports a defense not proffered by the defendant, the court
should ascertain from the defendant whether he or she wants instructions on the
alternative theory. (Ibid.; see also People v. Salas, at p. 982.) As we have discussed
above, the defense strategy was to persuade the jury that because of his mental state,
defendant did not premeditate or form the intent to kill. The defense sought to persuade
the jury to convict him of assault with a deadly weapon rather than attempted murder.
An instruction on unconsciousness would have negated that strategy. Because
unconsciousness is a complete defense to all offenses (People v. Rogers, supra, 39
Cal.4th at p. 887), an instruction would necessarily have informed the jury that if it found
that defendant was unconscious at the time of the attack on Jane Doe, it must find him not
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guilty of both charged offenses.4 Accordingly, if the court had inquired whether the
defense desired an instruction on unconsciousness, the answer certainly would have been
“no.” For that reason, any failure by the trial court to discharge its duty to inquire
whether defendant wanted an instruction on unconsciousness was harmless under any
standard. (See People v. Salas, at p. 984 [California Supreme Court has not yet
determined what standard of prejudice applies to failure to give instruction on affirmative
defense requested by the defense].)
Moreover, even if the trial court had erred in omitting the instruction on
unconsciousness, the error would have been harmless even under Chapman v. California
(1967) 386 U.S. 18, the more stringent of the two standards which apply to instructional
errors. (People v. Salas, supra, 37 Cal.4th at p. 984; People v. Simon (1995) 9 Cal.4th
493, 506-507 & fn. 11.)5 Under Chapman, the state must prove that the error was
harmless beyond a reasonable doubt. (Chapman, at p. 24.) Here, the jury was instructed
that it could consider defendant’s mental disorder in determining whether at the time of
the incident defendant acted with the intent to kill and with premeditation and
deliberation, both of which are elements of premeditated attempted murder. By finding
defendant guilty of premeditated attempted murder, the jury necessarily rejected any
4If a trial court gives an instruction, it must provide a complete and accurate
statement of the law. (People v. Ramirez (2015) 233 Cal.App.4th 940, 949.)
5 Structural error, which is reversible per se, applies only to instructional errors
that “‘categorically “‘vitiat[e] all the jury’s findings.’”’ [Citation.]” (People v. Mil
(2012) 53 Cal.4th 400, 412.) Omission of the unconsciousness instruction in this case,
even if it had been required, would not rise to that level of error.
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assertion that defendant’s mental disorder prevented him from forming the necessary
mental state and intent. Accordingly, we are convinced beyond a reasonable doubt that
the jury would not have found defendant unconscious if the instruction had been given.
2.
SENTENCING ERRORS
The parties agree that defendant is entitled to one additional day of credit for
actual time served before his conviction. We concur.
Defendant contends that the trial court expressed its intention to impose the
minimum restitution and probation revocation fines, which at the time of his offenses
were $240. Instead, however, the court imposed $300 fines.
At sentencing, the court stated as follows with respect to those fines: “There is a
restitution fine in the case. There’s a conviction fee in the case, as well. [¶] This offense
occurred, Madam Clerk, back in 2012, so we have to make sure that we’re using the 2012
numbers. . . . [¶] There’s a parole revocation fine. . . . That’s $300.” The sentencing
minutes reflect that the restitution fine and the parole revocation fine were both $300.
(The abstract of judgment reflects neither fine.)
Defendant is correct that in 2012 the minimum restitution and parole revocation
fines for felony convictions were $240. (§§ 1202.4, subd. (b)(1), 1202.44.) And, the
amount imposed as a parole revocation fine pursuant to section 1202.44 must be the same
as that imposed pursuant to section 1202.4. (§ 1202.44.) However, the trial court has the
discretion to impose such fines in any amount from the minimum up to $10,000,
commensurate with the seriousness of the offense. (§ 1202.4, subd. (b)(1).) Here,
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contrary to defendant’s contention, it is not clear that the court intended to impose the
minimum fine available in 2012, although that is certainly one plausible interpretation of
the court’s comments. Because the court did not actually state the amount it intended to
impose as a restitution fine but apparently left it up to the clerk to decide what the “2012
numbers” were, we will remand the matter with directions to the trial court to exercise its
discretion to determine and impose restitution and parole revocation fines in any amount
authorized by the pertinent statutes.6
Finally, as we noted in footnote 2, ante, the court purported to impose a sentence
of seven years to life on count 1. This is erroneous as a matter of law. The statutory term
for willful, deliberate and premeditated attempted murder is life with the possibility of
parole. (§ 664.) A person sentenced to that term is not eligible for parole until he or she
has served seven years. (§ 3046.) However, although that parole ineligibility period is
deemed to be a minimum term for purposes of second strike offender sentencing under
the three strikes law (People v. Jefferson (1999) 21 Cal.4th 86, 92-97; §§ 667, subd.
(e)(1), 1170.12, subd. (c)(1)), it is not otherwise a minimum term. (People v. Felix
(2000) 22 Cal.4th 651, 654, 657-659.) Accordingly, the correct sentence for each count
of attempted murder is life with the possibility of parole, not seven years to life. We will
6 In light of our resolution of the issues pertaining to credits and fines, defendant’s
contentions that his trial attorney provided ineffective assistance at sentencing are moot.
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remand the cause with directions to issue a corrected abstract of judgment and corrected
sentencing minutes.7
DISPOSITION
The judgment is reversed to the extent that it imposes a term of seven years to life
on count 1. The superior court is directed to determine and impose restitution and parole
revocation fines in any amount authorized by sections 1202.4, subdivision (b)(1) and
1202.44. The court shall thereafter issue a corrected abstract of judgment and corrected
sentencing minutes reflecting imposition of a sentence of life with the possibility of
parole on count 1, imposition of restitution and parole revocation fines, and presentence
credit for 772 days in actual time served. The superior court is directed to provide a copy
of the corrected abstract of judgment and the corrected sentencing minutes to the parties
and to the Department of Corrections and Rehabilitation.
The judgment is otherwise affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur:
KING
J.
MILLER
J.
7 The indeterminate abstract of judgment form includes, at item 5, a box to
indicate that the sentence is “Life with the possibility of parole on counts _____.”
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