People v. Ruiz-Lopez CA5

Filed 9/25/20 P. v. Ruiz-Lopez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,
F077922
Plaintiff and Respondent,
(Super. Ct. No. 16CR-04656)
v.

GERARDO OSCAR RUIZ-LOPEZ, OPINION
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Merced County. Jeanne
Schechter, Judge.
Benjamin Owens, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Paul E.
O’Connor, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
 INTRODUCTION
After defendant Gerardo Oscar Ruiz-Lopez threatened his ex-girlfriend by phone
that he and their daughter were dead, police found them alive in a bedroom closet with
two leaking propane tanks. Defendant pled not guilty and not guilty by reason of
insanity. During the guilt phase of the bifurcated trial, the jury convicted defendant of
attempted premeditated murder (Pen. Code, §§ 664/187/189; count 1)1 and child abuse
likely to produce great bodily harm or death (§ 273a, subd. (a); count 2).2 During the
second trial phase, the jury found that defendant was legally sane at the time he
committed the crimes. (§ 1026, subd. (a).) The trial court imposed a sentence of life
with the possibility of parole for attempted premeditated murder and the upper term of six
years for child abuse, stayed under section 654.
On appeal, defendant requests remand for a hearing on his eligibility for mental
health pretrial diversion under section 1001.36. (Stats. 2018, ch. 34, § 24, pp. 34–37.)
Defendant also claims that the trial court committed error under state law when it
instructed the jury during the guilt phase that he is presumed sane, in contravention of
People v. Mills (2012) 55 Cal.4th 663 (Mills), and that the erroneous instruction violated
his federal constitutional rights by shifting the prosecutor’s burden of proof. Finally,
defendant claims that the trial court erred in limiting the scope of his expert witnesses’
testimony about mental illness, in violation of his rights under state and federal law, and
that cumulatively, these errors violated his right to due process and a fair trial.
The People dispute defendant’s entitlement to any relief on his claims.
After briefing was complete in this case, the California Supreme Court held in
People v. Frahs (2020) 9 Cal.5th 618, 624–625 (Frahs) that section 1001.36 is

1 All further statutory references are to the Penal Code unless otherwise specified.
2 The jury found the sentence enhancement allegations for personal infliction of great
bodily injury on a child under the age of five years, attached to counts 1 and 2, not true.
(§ 12022.7, subd. (d).)

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retroactive. As there is evidence in the record that defendant suffers from a qualifying
mental disorder, he is entitled under Frahs to a conditional limited remand to determine
whether he is eligible for pretrial diversion. (Ibid.) However, we conclude that to the
extent Mills is controlling on the facts of this case and the trial court’s curative instruction
was erroneous under state law, it was harmless and we reject the claim that the instruction
violated defendant’s due process rights. We also reject defendant’s claim that the trial
court abused its discretion in limiting the scope of Dr. Terrell’s and Dr. Blak’s testimony
during redirect examination, and his claim of cumulative error.
FACTUAL SUMMARY3
I. Prosecution Case
Defendant and F.N. lived together for approximately five or six years and they had
a daughter together. In December 2015, F.N. told defendant she wanted to break things
off. In response, defendant threatened to harm or kill their daughter, A.R. However,
A.R. was not harmed and the responding officer concluded that F.N. was lying about
danger to the child. F.N. left the house and A.R. remained there with defendant. F.N.
testified that was the first time defendant made threats and his subsequent threats were
always directed at harming or killing A.R. rather than herself.
During their relationship, F.N. denied observing mood swings or depression in
defendant, but she said he drank a lot of beer, sometimes all day long. F.N. described the
situation as “awkward, but not crazy” due to his drinking. After they broke up, defendant
said he was depressed and F.N. offered to help.
F.N. also testified that during their relationship, defendant would tell her objects
were moving in the house, but she never saw anything moving or anything that had been
moved. On one occasion, F.N. had a dream she was being strangled and when she awoke

3 Defendant’s claims on appeal are limited to guilt phase issues and therefore, we do not
include a summary of the sanity phase evidence.

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and told defendant, he said, “‘I seen it. I seen it[,]’” and he described something black
going inside the wall. He also said he felt something on top of him, but she did not see
anything.
After they broke up, defendant and F.N. shared custody of A.R. On July 10, 2016,
A.R. was with defendant. He called and sent “aggressive” texts to F.N. throughout the
day. He called her a “‘whore,’” said A.R. was dead, and demanded to know if F.N. was
with another man. F.N. testified that she did not pay much attention until that night,
when defendant texted that she no longer had a daughter, that they were both dead and
that they went to the mountains. She described the texts as “really strange” and after she
recorded several of defendant’s phone calls, she called the authorities from her location in
Ceres but was told she needed to make the report in Merced. F.N. then asked her mother
by phone to make the report and she drove to defendant’s house in Merced.
When police arrived at defendant’s house at approximately 10:30 p.m. to
investigate, no one responded when they knocked and announced themselves. After
kicking the door in, four officers entered and began clearing the rooms. The house was
dark and quiet. When they reached the second floor master bedroom, one of the officers
pushed the closet door open and was met with a strong odor of propane. Defendant and
A.R. were lying on the closet floor with their eyes closed. There were pillows, blankets,
toys, a computer tablet in a pink case and two Pez candy dispensers on the floor of the
closet, along with two propane tanks that were leaking gas from their cut hoses.
One of the officers grabbed A.R., who was completely limp, and carried her
outside. The remaining officers attempted to take defendant into custody, but they ran
from the house when they heard a beeping sound, concerned it might be a detonator or
the gas might otherwise ignite. The beeping was later determined to be from defendant’s
cell phone.

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 A.R. quickly regained consciousness once outside and she was handed over to
F.N. before being transported to the hospital. She was released in the morning and
suffered no injury other than a cough, which F.N. described as rough and recurrent.
After A.R. was removed from the house, defendant remained inside for another
hour or two before coming out. He was taken into custody and transported to the
hospital.
Defendant was interrogated at the hospital and the audio recording of his
interrogation was played for the jury. Defendant stated he and F.N. were trying to get
back together, but he found out she was still talking with another man and he told her he
was tired of it. He denied he used drugs or was on any medication, but he said he drank
12 or so beers that night. Defendant stated he was told he was found in his closet with his
daughter and tanks of propane, but he had no memory of it and he denied any memory of
repeatedly sending texts or making calls to F.N. that day. Officer Russell, who
interrogated defendant at the hospital, testified that defendant did not appear to be under
the influence of drugs or alcohol.
II. Defense Case
A. J.U.’s Testimony
J.U., a pastor who had known defendant for more than 10 years, testified that
sometimes people lose consciousness and open themselves up to the spirit world. He
stated that people who practiced black magic or witchcraft had called on him to expel
demons before. People who prayed to the dead, but then turned to church also called on
him for help, and he had to burn down their altars of “holy death.”
J.U. testified that defendant consulted him regarding “some dark things”
happening that related to demons. Defendant told J.U. that “[t]hey felt a horrible
presence in one of the rooms” and A.R. “would have a dialogue with [the] spirit” in there.
Defendant also told J.U. that they moved out of that apartment due to the spirit.

5.
 B. Dr. Terrell’s Testimony
Dr. Howard Terrell, a forensic psychiatrist, reviewed case-related material from
the district attorney, the police department and Dr. Hamm, a psychologist; he reviewed
the transcript of defendant’s phone conversation with F.N. and listened to the call; he
reviewed the transcript of defendant’s interrogation; and he met with defendant and
evaluated him. During the evaluation, defendant denied using street drugs, but said that
for two or three years prior to his arrest, he was drinking between 12 and 24 beers per
day, which Dr. Terrell described as evidencing “a very serious alcohol problem.”
Defendant reported that in his youth in Mexico, he felt people talked about him and
laughed at him, and he was on an unspecified medication. He also reported having
auditory hallucinations on and off for years during which he heard whispering and
someone call his name, and having visual hallucinations over the past several years
during which he saw shadows and ghosts. He believed his mother-in-law engaged in
witchcraft against him, and he reported engaging in witchcraft to protect himself.
In addition, defendant reported experiencing periods of euphoria and elevated
energy since his 30’s, and he said he could go for up to five days without needing sleep.
During these periods, defendant experienced racing thoughts, rapid speech and
dramatically increased productivity; he felt much stronger, more powerful and
exceptionally optimistic; and he believed he would become wealthy. Defendant related
experiencing periods of depression with decreased energy and feelings of worthlessness
and although he was offered psychiatric treatment at the jail, he declined it. Dr. Terrell
testified that defendant’s history raises red flags, and he observed that in contrast with
healthy people, defendant frequently went off on tangents without any logical transition,
requiring redirection back to the topic of discussion.
After evaluating defendant, Dr. Terrell diagnosed him with bipolar I disorder and
unspecified alcohol-related disorder, and he thought defendant might have
schizoaffective disorder, but did not have enough evidence to conclude so with medical

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certainty. Dr. Terrell saw no evidence of malingering, which he explained is the false
production of physical or psychiatric problems for secondary gain.
Dr. Terrell testified that bipolar disorder, or manic depression, is a brain disorder
that may be inherited or caused by a brain injury. Its hallmark is one or more episodes of
mania, often manifested by elevated mood and energy levels. People often experience
rapid thoughts, can go days without sleep, and have impaired judgment, insight and
impulse control. They “may be unusually funny and tell jokes that may or may not make
sense, or they can become incredibly angry, hostile, violent, [or] even homicidal.”
People may also become psychotic during a manic episode and see or hear things that are
not there, or they may become delusional with “fixed and unshakeable thoughts” and
“paranoid beliefs [that] people are out to get them or kill them .…”
As well, people with bipolar disorder may experience depressive episodes where
they feel extremely down and suicidal; they may experience a mixture of both mania and
depression; and they may often experience periods of normalcy even without treatment.
Dr. Terrell described the disorder as “very complex” with “a very high risk factor for
becoming suicidal.” A person’s level of impairment will necessarily depend on how
manic or depressive the person is and whether alcohol or street drugs are a factor.
Dr. Terrell noted that in the phone call recorded by F.N., defendant’s speech was
“very, very rapid and pressured” and, in his opinion, it “is highly suggestive of someone
who is mentally ill.” Defendant’s speech was also abnormally rapid and pressured during
Dr. Terrell’s interview with him, and Dr. Terrell opined that one possible explanation for
defendant’s speech in the phone call with F.N. is bipolar disorder in the manic phase.
Another explanation might be that defendant was under the influence of a stimulant such
as methamphetamine or cocaine. However, based on defendant’s history and his
observations of defendant during their interview, Dr. Terrell thought the most likely
explanation for defendant’s angry, hostile, rapid speech during the phone call was bipolar
disorder during a manic phase. Dr. Terrell explained that making repeated phone calls

7.
and sending repeated texts throughout the day is also consistent with an abnormal state of
mind and bipolar disorder in the manic phase; people in this phase can become “hyper
verbal,” and talk rapidly, make a lot of phone calls, or send a lot of letters or texts.
Dr. Terrell testified that if defendant had been drinking, even greater impairment of his
judgment, insight and impulse control would be expected, and drinking 12 to 36 beers a
day indicates “someone with a very serious drinking problem, … who’s at high risk of
having episodes of very abnormal behavior, including episodes of alcohol blackout .…”
Defendant reported that he drank “‘a lot’” of beer on the day of the crime, that it
“usually takes at least 12 or more beers for him to black out,” and that hours were
unaccounted for, including the time of the crime. While acknowledging it is possible
defendant was lying, Dr. Terrell stated that his inability to account for blocks of time is
consistent with an alcohol blackout. In Dr. Terrell’s opinion, on the day of the crime,
defendant “was very likely intoxicated” and “very likely had bipolar [I] disorder with
manic symptoms, … likely [with] some depressive symptoms, which were mixed in
leading to him feeling suicidal as well as homicidal.”
On cross-examination, Dr. Terrell testified that he did not hear what sounded like
slurred speech during defendant’s phone call with F.N., and that someone who is enraged
and making threats can be acting purely out of anger. Dr. Terrell also explained that
people in a manic phase are capable of making decisions and forming intent, but if one is
severely mentally ill and in a manic phase or is drunk, or both, their judgment is faulty.
C. Dr. Blak’s Testimony
Dr. Blak, a forensic psychologist, evaluated defendant twice in person and
reviewed the police reports, Dr. Terrell’s report, Dr. Neufeld’s report, the recorded phone
calls and interrogation, and the crime scene photographs. Dr. Blak observed that
defendant was hypomanic, meaning he had high tempo, pressured, rapid speech and he
moved from topic to sometimes only vaguely connected topic. Dr. Blak observed some
anxiety, tension and worry, but no particular depression.

8.
 Defendant related that he preferred to be alone and was in lockdown at the jail by
choice. He told Dr. Blak his mother was stern and abusive, physically and emotionally,
and she sometimes hit him with a belt or other object. Defendant experienced bad
dreams involving his mother, and he reported having a psychiatric consultation at some
point, but did not indicate he was prescribed medication or had ongoing treatment.
Defendant reported seeing disembodied hands around F.N.’s throat and seeing shadows.
He also mentioned good and bad magic, and reported that spirits moved things in his
house, he felt them and he believed they were responsible for the tension in his
relationship with F.N. On the advice of someone he consulted, he lit candles and went to
the cemetery to pray to the spirits.
Defendant told Dr. Blak he loved his daughter and a week before the crime, he,
F.N. and A.R. went to Disneyland together. He thought they had a good time and was
optimistic for a reconciliation with F.N., representing to Dr. Blak that F.N. wanted to get
back together and she communicated that to him. Defendant also told Dr. Blak he drank
a 12-pack of beer every day and he did not have a criminal record.
Dr. Blak did not see any sign that defendant was malingering, and he diagnosed
defendant with chronic bipolar disorder with severe mania. His testimony regarding
bipolar disorder was materially consistent with Dr. Terrell’s testimony. Dr. Blak noted
that defendant’s moods appeared to cycle rapidly between high and low even within the
span of a day; and that repeatedly calling and texting a girlfriend after the end of a
relationship is characteristic of a manic episode, as was defendant’s agitation and anger
during his phone conversation with F.N. Dr. Blak interpreted defendant’s phone
conversation with F.N. as focused on finding out if she was with someone else, and his
anger and language reflected his “mixed attachment” to her, which was due to his
unstable upbringing.
Dr. Blak also diagnosed defendant with substance use disorder and
undifferentiated schizophrenia. He explained schizophrenia is a thought disorder that

9.
includes auditory and visual hallucinations, delusions and “ideas as reference,” in which
the person will attribute a meaning to an event that has no logical connection; that is, a
mere idea to support the person’s thinking. Dr. Blak testified that defendant’s reports of
seeing something black go into the wall, seeing his daughter talk to someone who is not
there and seeing disembodied hands choking his girlfriend are consistent with
schizophrenia; and his belief that his girlfriend wanted to reconcile with him when she
did not is consistent with delusional thinking. He also testified that rage over a partner
leaving for someone else or being with someone else can be a triggering event for
schizophrenia or psychosis.
Dr. Blak testified that psychosis and schizophrenia are interchangeable words, and
a person can experience a psychotic break due to trauma, such as abandonment by
someone the person is attached to, or due to chemical ingestion, such as
methamphetamine use. Thought disorders like schizophrenia result in impaired
judgment, including illogical interpretations and angry or agitated reactions to a
perceived threat. Thought disorders also impact the ability to weigh options and
appreciate the consequence of actions.
Dr. Blak attributed defendant’s inability to recall the events on the day of the
crime, other than his recollection that he ordered pizza, to a fugue or dissociative state
during which awareness is blocked. Dissociative states can be the product of significant
trauma or of chemical ingestion, but they are also a component of schizophrenia, which
Dr. Blak believed was the situation with defendant. He explained that when people with
a thought disorder act contrary to their beliefs, the disorder causes an impairment in their
observational ability and they block the act out, in contrast with consciously lying about
the act. If they do something “syntonic, that is, fits with what they believe about
themselves, they have no problem. However[,] when [they do something] dystonic, or
different from what they believe about themselves, then they [have] to do something
about the conflict, like[,] ‘[W]hat do I do about this. Either I admit that I’m not the

10.
person I think I am, or I didn’t do it.’” Dr. Blak testified that defendant said he does not
feel guilty because he loves his daughter. However, those two things do not go together,
and defendant’s contradictory statement follows from his feeling of guilt and is the
product of his thought disorder and dissociative state.
In addition to a fugue or dissociative state attributable to schizophrenia, Dr. Blak
opined that defendant’s angry, agitated behavior during the recorded phone call with F.N.
on the day of the crime evidenced someone in the manic phase of bipolar disorder.
Dr. Blak also opined that these disorders affected defendant’s judgment on the day of the
crime.
On cross-examination, Dr. Blak agreed that if someone says something untrue,
such as expressing a belief in reconciliation, that statement might be a lie or made to save
face and is not necessarily the result of a delusion or false belief. However, in his
opinion, making a victim comfortable in the closet with a pillow—a loving gesture
coupled with a hurtful gesture on the opposite end of a spectrum—evidences delusional
thinking. He also testified that “rage has to do with aggression [toward] others,” and
when people act out of rage during a manic phase, they want to act and intend to act, but
they do not think of the consequences and do not, in their mind, have a choice. That is,
they have control, but do not feel they do, and they act compulsively and impulsively.
DISCUSSION
I. Remand Request for Eligibility Determination Under Section 1001.36
Defendant was convicted on May 9, 2018, and sentenced on July 27, 2018.
Effective June 27, 2018, the Legislature added section 1001.36 to the Penal Code. (Stats.
2018, ch. 34, § 24, pp. 34–37.) Pursuant to section 1001.36, certain defendants suffering
from mental disorders may be eligible for pretrial diversion (id., subds. (a), (b)), which is
defined as “postponement of prosecution, either temporarily or permanently, at any point
in the judicial process from the point at which the accused is charged until adjudication,
to allow the defendant to undergo mental health treatment[]” (id., subd. (c)). “If the

11.
defendant has performed satisfactorily in diversion, at the end of the period of diversion,
the court shall dismiss the defendant’s criminal charges that were the subject of the
criminal proceedings at the time of the initial diversion.” (Id., subd. (e).)
There is evidence in the record that defendant suffers from a qualifying mental
disorder under subdivision (b)(1)(A) of section 1001.36. Relying on the Court of
Appeal’s decision in People v. Frahs, which held that section 1001.36 applies
retroactively to all judgments not yet final on appeal, defendant seeks remand for a
determination on his eligibility for diversion under section 1001.36. (People v. Frahs
(2018) 27 Cal.App.5th 784, 791, review granted Dec. 27, 2018, No. S252220.) In their
brief, the People argue that People v. Frahs was wrongly decided and section 1001.36 is
not retroactive.
After briefing was complete in this case, the California Supreme Court affirmed
the decision in People v. Frahs and held that under the rule of In re Estrada (1965) 63
Cal.2d 740, section 1001.36 is retroactive. (Frahs, supra, 9 Cal.5th at p. 624.) In light of
Frahs and evidence that defendant suffers from a qualifying mental disorder, defendant is
entitled to a conditional, limited remand for an eligibility determination under section
1001.36. (Frahs, supra, at p. 625.) Pursuant to the procedure adopted in Frahs, “‘[i]f the
trial court finds that [the defendant] suffers from a mental disorder, does not pose an
unreasonable risk of danger to public safety, and otherwise meets the six statutory criteria
(as nearly as possible given the postconviction procedural posture of this case), then the
court may grant diversion. If [the defendant] successfully completes diversion, then the
court shall dismiss the charges. However, if the court determines that [the defendant]
does not meet the criteria under section 1001.36, or if [the defendant] does not
successfully complete diversion, then his convictions and sentence shall be reinstated.’”
(Id. at p. 641.) As remand is conditional, we turn to defendant’s remaining claims.

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II. Instructional Error
A. Background
Prior to the commencement of evidence during the guilt phase, both parties gave
opening statements. During defendant’s opening statement, the following exchange
occurred:

“[DEFENSE COUNSEL:] [W]hen he … learned [F.N.]’s already
with another guy, this jealous, hatred, disappointment, depression comes
from this falling out triggered psychosis. And when he’s in manic
psychosis, you’ll hear from testimony of [a] professional that his mind is
not sane.

“[PROSECUTOR]: I’m going to object to sanity.

“THE COURT: Sustained.

“[DEFENSE COUNSEL]: “He suffers from mental illness that will
impair his judgment, impair his knowing what can happen to people of his
actions. And this mental illness will cause him to do things that he doesn’t
intend to do. [¶] So when you hear all this evidence, you will see that he
didn’t have specific intent to kill his loving daughter, and you will hear
evidence that he’s never been in trouble in his life. He never had intent to
kill his daughter with premeditation, deliberation. And that’s what
evidence will show to you. And your righteous verdict will be not guilty.
Thank you.”
Immediately following, the court held a bench conference at the prosecutor’s
request and then instructed the jury:

“All right. Ladies and gentlemen, I do just want to remind you this
is just the guilt phase of the jury trial. For this portion of jury trial, you do
need to presume that the defendant is sane[. T]he only issue is whether
he’s guilty of these crimes. If you find that he is guilty of one or both of
these crimes, then we’ll get to the next phase of trial where we’ll be
examining the issue regarding his sanity. Okay. I just want to remind you
[of] that.”
Relying on the California Supreme Court’s decision in Mills, defendant claims that
the trial court’s instruction to the jury was error under state law, that the error also
violated his right to due process by shifting the prosecutor’s burden of proof, and that the

13.
error was prejudicial under both the state and federal standards of review. Alternatively,
defendant argues that if trial counsel failed to adequately preserve this issue for review,
he rendered ineffective assistance of counsel.
The People contend that defendant forfeited his claim of instructional error by
withdrawing any objection to the curative instruction during the conference that followed
the court’s admonishment to the jury. With respect to the merits, they concede that the
trial court committed error under state law when it instructed the jury to presume
defendant’s sanity, but they contend the error did not violate defendant’s due process
rights and it was harmless under the state standard of review.
As explained below, we reject defendant’s claim that the trial court committed an
instructional error of constitutional magnitude and we conclude that even if erroneous
under Mills, the instruction did not prejudice defendant. Therefore, we need not resolve
the parties’ disagreement over whether defendant forfeited his claim of instructional
error. (§ 1259; People v. Delgado (2017) 2 Cal.5th 544, 572, fn. 15; People v. Townsel
(2016) 63 Cal.4th 25, 59–60; People v. Lua (2017) 10 Cal.App.5th 1004, 1014.)
B. Standard of Review
We review allegations of instructional error de novo. (People v. Waidla (2000) 22
Cal.4th 690, 733; People v. Martin (2000) 78 Cal.App.4th 1107, 1111.) “[I]nstructions
are not considered in isolation. Whether instructions are correct and adequate is
determined by consideration of the entire charge to the jury.” (People v. Holt (1997) 15
Cal.4th 619, 677; accord, People v. Thomas (2011) 52 Cal.4th 336, 356.) “If the charge
as a whole is ambiguous, the question is whether there is a ‘“reasonable likelihood that
the jury has applied the challenged instruction in a way” that violates the Constitution.’”
(Middleton v. McNeil (2004) 541 U.S. 433, 437 (per curiam).) Jurors are presumed to
have understood and followed the trial court's jury instructions. (People v. Sandoval
(2015) 62 Cal.4th 394, 422.)

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 C. Analysis
1. Error Under State Law
In Mills, during the guilt phase of a bifurcated trial, the trial court instructed the
jury, at the prosecutor’s request and over defense counsel’s objection, that “‘[f]or the
purpose of reaching a verdict in the guilt phase of this trial, you are to conclusively
presume that the defendant was legally sane .…’” (Mills, supra, 55 Cal.4th at pp. 676,
678–679, fn. 10, italics omitted.) Although the California Supreme Court found the error
was harmless (id. at p. 681), it concluded that instructing the jury on the presumption of
sanity during the guilt phase was error under state law because it “had no bearing on any
issue before the jury at the guilt phase of [the] defendant’s trial[,]” and “[t]the instruction
is susceptible to the interpretation that the presumption of sanity is relevant to the jury’s
guilt phase deliberations. That reading is inconsistent with the bifurcated scheme
established by section 1026, which requires the prosecution to prove guilt before the
defendant assumes the burden of proving insanity[]” (id. at p. 676). However, the court
rejected the argument that the error violated the defendant’s due process rights (id. at
pp. 676–677), finding “there [was] no reasonable likelihood that the jury would have
applied the presumption of sanity to reduce the prosecutor’s burden of proof[]” (id. at
p. 680).
In contrast with Mills, where the trial court instructed the jury after the close of
evidence and in conjunction with its other final instructions on the law, the trial court
here admonished the jury that the defendant is presumed sane during the guilt phase after
defense counsel commented during his opening statement that the jury would hear
evidence that defendant was not sane. As such, the isolated instruction was directly
responsive to and intended to cure an affirmative error made by defense counsel, and it
was not repeated during the final instructions given after the close of evidence. The
context in which the instruction was given in this case is, therefore, distinguishable from
the concerns that informed the decision in Mills; namely, the pertinence of the instruction

15.
and whether it “complicates matters at the guilt phase by injecting the subject of sanity
before it is at issue.” (Mills, supra, 55 Cal.4th at p. 680, fn. omitted.)
In any event, we need not decide whether the curative instruction violated state
law even under the circumstances of this case, because, as we discuss below, even if we
assume error, it was not prejudicial. Before we turn to prejudice, however, we resolve
defendant’s claim that the error he complains of also violated his right to due process
under federal law.
2. Due Process Claim
In arguing a due process violation occurred, defendant urges us to follow the Ninth
Circuit Court of Appeal’s decisions in Patterson v. Gomez (2000) 223 F.3d 959
(Patterson) and Stark v. Hickman (2006) 455 F.3d 1070 (Stark). Defendant
acknowledges that Mills declined to do so, but contends that the California Supreme
Court distinguished Patterson and Stark on grounds present in Mills but absent in this
case. (Mills, supra, 55 Cal.4th at p. 677.)
a. Patterson
In Patterson, the defendant, who had a history of mental illness, ran onto a
freeway and into the pathway of a semitruck with his 10-year-old daughter in his
arms. (Patterson, supra, 223 F.3d at p. 961.) His daughter was killed and, during
the guilt phase of the bifurcated trial, the jury convicted him of first degree
murder. (Id. at pp. 961–962.) The trial court instructed the jury at the conclusion
of the guilt phase as follows:

“Evidence has been received regarding a mental disease or mental
disorder of the defendant at the time of the crime in the Information. You
may consider such evidence solely for the purpose of determining whether
or not the defendant actually formed the mental state which is an element of
the crime charged in the Information, and are [sic] found in the definitions
of murder.

“If from all the evidence you determine to be credible you have a
reasonable doubt whether the defendant formed any required mental state

16.
 or had the necessary specific intent, you must find that he did not have such
mental state or specific intent.

“At the time of the alleged offense charged in the Information, you
were [sic] instructed to presume that the defendant was sane.” (Patterson,
supra, 223 F.3d. at p. 964.)
The Ninth Circuit concluded that the instruction violated the due process clause of
the Fourteenth Amendment by shifting the prosecutor’s burden of proof on an element.
(Patterson, supra, 223 F.3d at p. 965.) The court explained, “Where, as here, evidence is
introduced at trial that a defendant was suffering from a mental disease, defect, or
disorder, the jury is entitled to consider evidence of such disease, defect, or disorder in
determining whether the defendant actually had the mental state necessary for first degree
murder. But if a jury is instructed that a defendant must be presumed ‘sane’—that is,
‘rational’ and ‘mentally sound,’ and ‘able to anticipate and appraise the effect of [his]
actions,’—a reasonable juror could well conclude that he or she must presume that the
defendant had no such mental disease, defect, or disorder. If a juror so concludes, he or
she presumes a crucial element of the state’s proof that the defendant was guilty of
willfulness, premeditation, and deliberation.” (Id. at p. 966.)
In considering the sanity instruction in the context of the other instructions, the
Patterson court concluded it violated due process, stating, “Nowhere in his preliminary or
concluding instructions did the judge explain that the presumption of sanity was the
analytical basis for the bifurcated trial; nowhere did he provide the M’Naghten definition
of insanity that the jury was asked to presume; and nowhere did he warn the jury that
‘sane’ was being used in something other than the conventional lay sense that the jurors
were likely to have had in mind.” (Patterson, supra, 223 F.3d at p. 966.) After finding
that the trial court committed an instructional error of constitutional magnitude, the court
expressed “‘grave doubt’” that the error was harmless. (Id. at p. 968.)

17.
 b. Stark
Subsequently, in Stark, a first degree murder case in which the defendant shot and
killed his estranged wife’s boyfriend (Stark, supra, 455 F.3d at pp. 1072–1074), the trial
court instructed the jury:

“In the guilt phase of a criminal action the defendant is conclusively
presumed to be sane; however, you have received evidence regarding a
mental defect or mental disorder of the defendant at the time of the
commission of the crime charged, namely, murder of the first degree,
murder of the second degree, or the lesser crime thereto, namely, voluntary
manslaughter. You should consider this evidence solely for the purpose of
determining whether the defendant actually formed the required specific
intent, premeditated, deliberated, or harbored malice aforethought which
are an element of the crime charged, namely murder of the first degree,
murder of the second degree, or the lesser crime of voluntary
manslaughter.” (Stark, supra, 455 F.3d. at p. 1075.)
The court concluded that the instruction was equivalent in all material respects to
the erroneous instruction given in Patterson and that Patterson was controlling. (Stark,
supra, 455 F.3d at p. 1078.) The court stated, “[T]he instruction read as a whole did not
explain or cure the error because the jury was not told how to reconcile the presumption
of sanity with [the] petitioner’s attempts to prove he lacked the requisite intent to commit
murder because of his mental condition. Thus, the potential for confusion was rife, and a
reasonable juror could have concluded that he or she must presume that [the] petitioner
had no mental disease, defect, or disorder. As we noted in Patterson, ‘if a juror so
concludes, he or she presumes a crucial element of the state’s proof that [the petitioner]
was guilty of [the requisite intent].’ Patterson, 223 F.3d at 966. The error in Patterson
was thus repeated in this case. In fact, the error here was even more pronounced, as the
charge told the jury that [the] petitioner was ‘conclusively presumed’ to be sane.” (Ibid.,
italics added.) As in Patterson, the Stark court concluded that the instructional error was
not harmless. (Id. at p. 1080.)

18.
 c. Mills
Defendant correctly asserts that in Mills, in which the defendant claimed
unreasonable self-defense, the California Supreme Court distinguished Patterson and
Stark on the ground that unlike in those cases, the “defendant did not claim that his
mental illness resulted in ‘diminished actuality,’ i.e., a general absence of the requisite
mental state. His claim was narrower and less directly related to considerations of sanity,
in the lay sense, than were the defenses in Patterson and Stark.” (Mills, supra, 55 Cal.4th
at p. 677, fn. omitted.) Moreover, the court in Mills specifically stated that it was
expressing “no view on whether Patterson and Stark were correctly decided.” (Ibid.,
fn. 8.)
However, the Mills court also recognized that in People v. Blacksher, which did
not involve a claim of unreasonable self-defense, it had summarily rejected the claim that
the trial court lowered the prosecutor’s burden of proof, in violation of the defendant’s
due process rights, by instructing the jury, “‘“[I]n the guilt trial or phase of this case, the
defendant is conclusively presumed to have been sane at the time[] the offenses … are
alleged to have been committed[]”’” (Mills, supra, 55 Cal.4th at p. 675, fn. omitted,
quoting People v. Blacksher (2011) 52 Cal.4th 769, 831 (Blacksher) [following People v.
Coddington (2000) 23 Cal.4th 529, 584–585 (Coddington), overruled on another ground
in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13]). In rejecting the
defendant’s due process claim in Blacksher, the court commented that it was “neither
persuaded nor bound by any contrary decisions of the lower federal courts.” (Blacksher,
supra, at p. 831; see People v. Brooks (2017) 3 Cal.5th 1, 90 [“We are not bound by the
decisions of the federal appellate courts, although they may be considered for their
persuasive weight.”].)
Defendant points out that this case does not involve the narrow defense claim of
unreasonable self-defense as in Mills and instead involves the broader “general absence
of the requisite mental state[]” as in Patterson and Stark. (Mills, supra, 55 Cal.4th at

19.
p. 677.) However, we reiterate that Blacksher did not involve a claim of unreasonable
self-defense, and “‘[c]ourts exercising inferior jurisdiction must accept the law declared
by courts of superior jurisdiction. It is not their function to attempt to overrule decisions
of a higher court.’” (People v. Letner and Tobin (2010) 50 Cal.4th 99, 197–198, quoting
Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) In any event, we
are not persuaded that in this case, the court’s curative sanity instruction lowered the
prosecutor’s burden of proof as to mental state. To the contrary, the distinctions
discussed with respect to state law error also inform our conclusion that there was no
violation of defendant’s due process rights.
In contrast with the instructions in Stark and Patterson, the trial court here
instructed the jury on mental impairment pursuant to standard pattern instruction and did
not mention the presumption of sanity, as follows:

“You have heard evidence that the defendant may have suffered
from a mental disorder. You may consider this evidence only for the
limited purpose of deciding whether at the time of the charged crime the
defendant acted with the intent or mental state required for that crime.

“The People have the burden of proving beyond a reasonable doubt
that the defendant acted with the required intent or mental state
specifically—I can’t even talk any more. I’m sorry ladies and gentlemen.
It’s getting late. The specific intent to kill [A.]R. If the People have not
met this burden, you must find the defendant not guilty of attempted
murder as charged in Count 1. The People have the burden of proving
beyond a reasonable doubt that the defendant acted with the required intent
or mental state, specifically deliberation and premeditation as alleged in the
additional allegation.

“If the People have not met this burden, you must find the defendant
not guilty of the additional allegation that the attempted murder was done
willfully, deliberately, and with premeditation.” (See CALCRIM
No. 3428.)
The trial court did not, in combination with these instructions, repeat that the jury
must presume defendant’s sanity. Under the circumstances of this case and viewing the

20.
instructions in their entirety, defendant fails to persuade us that the isolated instruction on
the presumption of sanity, which was given prior to the commencement of evidence, was
intended to cure defense counsel’s inadvertent error during opening statement, and was
not repeated by the court during final instructions, shifted the prosecutor’s burden of
proof by confusing the jury and creating the risk that a reasonable juror might conclude
he or she must presume defendant had no mental disorder.4 (Stark, supra, 455 F.3d at
p. 1078; Patterson, supra, 223 F.3d at pp. 965–966.)
Additionally, the parties properly focused on the relevant issues during closing
arguments. Specifically, the parties addressed the prosecutor’s burden of proof on the
issue of defendant’s specific intent to commit attempted premeditated murder and
addressed defendant’s theory that in light of his mental disorder and intoxication, he
lacked the specific intent to commit attempted premeditated murder.5 Accordingly, we

4 In his reply brief, defendant directs our attention to the Ninth Circuit’s opinion in Mills v.
Swarthout (2019) 761 Fed. Appx. 695, 697, in which the Court of Appeal affirmed the denial of
Mills’s habeas petition and distinguished the case, stating, “In Stark and Patterson, the
instructions were to presume the defendant was ‘sane’ at the time of the offense, but here, the
instruction was to presume Mills was ‘legally sane.’” Because the decision is unpublished, it is
not precedential (Fed. Rules App. Proc. Rule 32.1; U.S. Cir. Ct. Rules (9th Cir.) rule 36-3(a)),
but regardless, our analysis does not turn on the presence or absence of the word “‘legally[.]’”
(Mills v. Swarthout, supra, at p. 697.)
5 To the extent that defendant’s brief may be interpreted as contending, in part, that the
prosecutor misstated the law by arguing that evidence of a mental disorder is irrelevant to the
issue of intent, we do not agree with this characterization. The focus of the prosecutor’s
argument was that the evidence of defendant’s mental health issues did not negate his intent in
this case. During rebuttal argument, the prosecutor briefly referred, twice in a row, to the
defense experts’ testimony while attempting to argue that defendant had the specific intent to
commit attempted premeditated murder. The first comment was perhaps susceptible to the
interpretation that the defense experts opined on defendant’s intent and the second comment
expressly referred to the lack of expert testimony that defendant could not premediate and
deliberate. Defense counsel’s objections were sustained and the court admonished the jury,
“Ladies and gentlemen, there are certain things that doctors are allowed to testify to and that
they’re not allowed to testify to. And what you heard today and yesterday was [what] the
doctors were allowed to testify to. [¶] And with respect to opinions, there are certain findings
that you have to make that go to the ultimate issues in this case as to whether [defendant]
actually formed the specific intent.” The prosecutor thereafter closed by arguing that even if the
jury concluded defendant was delusional, it did not negate his intent. In view of the parties’

21.
find “no reasonable likelihood that the jury would have applied the presumption of sanity
to reduce the prosecutor’s burden of proof[]” (Mills, supra, 55 Cal.4th at p. 680), and we
reject defendant’s claim to the contrary.
3. Any Error Under State Law Harmless
State law errors are reviewed under People v. Watson (1956) 46 Cal.2d 818, 837,
which requires us to determine “whether there is a ‘reasonable probability’ that a result
more favorable to the defendant would have occurred absent the error.” (People v.
Aranda (2012) 55 Cal.4th 342, 354.) Even assuming the trial court’s curative instruction
was erroneous under Mills, it was harmless. As previously discussed, the isolated
instruction was given during opening statements, was intended to cure defense counsel’s
error and was not repeated during the court’s final instructions. The parties’ arguments
also focused appropriately on defendant’s specific intent to kill and to premeditate, the
prosecutor’s burden of proof, and whether or not he had the specific intent to commit
attempted premeditated murder given the evidence of his mental disorder and voluntary
intoxication.
In addition, the evidence that defendant formed the specific intent to kill A.R. and
that he did so willfully, deliberately, and with premeditation was strong, mental illness
notwithstanding. The jury had for consideration defendant’s text messages from the day
of the crime threatening to kill A.R. and taunting F.N. about it, a recorded phone call
from the day of the crime demanding to know where F.N. was and if she was with
another man, and defendant’s recorded interrogation. Indeed, the jury requested to hear
the recorded phone call and defendant’s recorded interrogation, and view the Spanish to
English translation, again during deliberation. Both pieces of evidence factored centrally
in the parties’ competing arguments regarding intent, and the jury’s review of that

closing arguments in their entirety, we are not persuaded that the prosecutor’s brief statements
risked confusing or misleading the jury with respect to the evidence or the prosecutor’s burden of
proof.

22.
evidence suggests it took care in determining whether the evidence indicated defendant
had the specific intent to commit attempted premeditated murder or instead whether, as
Dr. Terrell and Dr. Blak opined, the evidence showed that defendant was in a manic or
dissociative state on the day of the crime, from which the jury could have inferred that
defendant did not form the specific intent to commit the crime.
Besides the recordings, the crime scene evidence depicted a calculated, methodical
crime. Inside the enclosed space of a closet, defendant placed pillows, blankets, candy
and A.R.’s tablet. He then closed himself and A.R. inside the closet with two propane
tanks that he turned on. The hoses of both tanks were cut to allow gas to leak out inside
the closet and a knife was found in the master bathroom next to another propane tank
adaptor. Given the facts of the case, the instructions as a whole, and the parties’
arguments, we conclude that “a result more favorable to the defense was not reasonably
probable absent the instruction on the presumption of sanity.” (Mills, supra, 55 Cal.4th at
p. 681; accord, People v. Aranda, supra, 55 Cal.4th at p. 354.)
III. Limitation on Scope of Experts’ Testimony
A. Background
Relevant to defendant’s challenge regarding the scope of Dr. Terrell’s and
Dr. Blak’s testimony during the guilt phase, section 28, subdivision (a) provides,
“Evidence of mental disease, mental defect, or mental disorder shall not be admitted to
show or negate the capacity to form any mental state, including, but not limited to,
purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with
which the accused committed the act. Evidence of mental disease, mental defect, or
mental disorder is admissible solely on the issue of whether or not the accused actually
formed a required specific intent, premeditated, deliberated, or harbored malice
aforethought, when a specific intent crime is charged.”
Section 29 provides, “In the guilt phase of a criminal action, any expert testifying
about a defendant’s mental illness, mental disorder, or mental defect shall not testify as to

23.
whether the defendant had or did not have the required mental states, which include, but
are not limited to, purpose, intent, knowledge, or malice aforethought, for the crimes
charged. The question as to whether the defendant had or did not have the required
mental states shall be decided by the trier of fact.”
Thus, “[e]xpert opinion on whether a defendant had the capacity to form a mental
state that is an element of a charged offense or actually did form such intent is not
admissible at the guilt phase of a trial. [Citation.] Sections 28 and 29 permit introduction
of evidence of mental illness when relevant to whether a defendant actually formed a
mental state that is an element of a charged offense, but do not permit an expert to offer
an opinion on whether a defendant had the mental capacity to form a specific mental state
or whether the defendant actually harbored such a mental state. An expert’s opinion that
a form of mental illness can lead to impulsive behavior is relevant to the existence vel
non of the mental states of premeditation and deliberation regardless of whether the
expert believed appellant actually harbored those mental states at the time of the killing.”
(Coddington, supra, 23 Cal.4th at pp. 582–583.)
B. Standard of Review
We review a trial court’s ruling on the admission or exclusion of evidence for
abuse of discretion. (People v. Kopatz (2015) 61 Cal.4th 62, 85; People v. DeHoyos
(2013) 57 Cal.4th 79, 131.) “Under this standard, a trial court’s ruling will not be
disturbed, and reversal of the judgment is not required, unless the trial court exercised its
discretion in an arbitrary, capricious, or patently absurd manner that resulted in a
manifest miscarriage of justice.” (People v. Guerra (2006) 37 Cal.4th 1067, 1113,
disapproved on other grounds in People v. Rundle (2008) 43 Cal.4th 76, 151, disapproved
in part on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; see
People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 390.) “‘[W]e review the
ruling, not the court’s reasoning and, if the ruling was correct on any ground, we

24.
affirm.’” (People v. Zamudio (2008) 43 Cal.4th 327, 351, fn. 11; accord, People v.
Brooks, supra, 3 Cal.5th at p. 39.)
C. Claim of Error
Defendant claims that the trial court improperly precluded Dr. Terrell and Dr. Blak
from opining that mental illness can affect or obviate intent and “can lead to
overwhelming compulsion and unintentional activity.” Defendant also suggests that the
court precluded Dr. Blak from answering a hypothetical question. We disagree.
1. Reliance on Cortes and Herrera
Defendant cites People v. Cortes (2011) 192 Cal.App.4th 873 (Cortes) and People
v. Herrera (2016) 247 Cal.App.4th 467 (Herrera) for the proposition that the trial court
improperly limited his expert witnesses’ testimony. We agree with the People that Cortes
and Herrera are inapt.
The defendant in Cortes stabbed another man to death during an altercation at a
party and was subsequently convicted of first degree murder. (Cortes, supra, 192
Cal.App.4th at pp. 876–877.) He was evaluated by Dr. Dondershine, a psychiatrist who
also testified at trial. (Id. at p. 891.) However, the court precluded “Dr. Dondershine
from testifying about [the] defendant’s upbringing, traumatic events in his life or their
effect on his mental condition at the time of the crime, at all.” (Id. at p. 899.) With
respect to dissociation and posttraumatic stress disorder (PTSD), the trial court prohibited
Dondershine from testifying “that (1) [the] defendant was in a dissociative state; or
(2) exhibited any kind of behavior that established a foundation for a finding that he was
in a dissociative state; or (3) to any hypotheticals, ‘[be]cause that’s just leading to linking
up an opinion’; or (4) it is psychiatrically likely [the] defendant’s mental functioning was
overwhelmed and impaired, because it goes to his state of mind before the crime;
(5) [the] defendant has a history of extreme emotional distress, bad upbringing and
mothering, because the court doubted that Dr. Dondershine spent enough time with [the]
defendant to have an adequate foundation to testify about ‘any of that’; or (6) [the]

25.
defendant has a history of emotional distress, including PTSD; or (7) [the] defendant had
PTSD at the time of the act or that in his past there were any particular features that met
those criteria, except to the extent that the jury was going to hear about his prior bad acts;
or (8) Dr. Dondershine diagnosed [the] defendant with an adjustment disorder involving
conduct and emotional control issues, because ‘that’s essentially the same as his
testimony about a dissociative state’; or (9) [the] defendant experienced an emotional
trauma leading to a somatic sensory recall of some incident, because Dr. Dondershine
was not going to be allowed to render any opinion about [the] defendant and his
behavior; or (10) why [the] defendant stabbed the victim 13 times.” (Id. at pp. 899–900.)
In terms of what testimony should have been admitted, the Court of Appeal
recognized that “the devil is in the details” (Cortes, supra, 192 Cal.App.4th at p. 909),
but concluded that “at a minimum, Dr. Dondershine should have been permitted to testify
to [the] defendant’s diagnoses of adjustment disorder with emotional and conduct
problems, attachment problems related to personality development, and psychiatric
problems that could be characterized variously as PTSD, anxiety disorder or
psychophysiological instability. He should have been permitted to testify about [the]
defendant’s upbringing and traumatic experiences as a child and/or adolescent, inasmuch
as [the] defendant’s prior traumatic experiences informed Dr. Dondershine’s opinion, and
explained the connection between [the] defendant’s diagnoses, his mental state and his
behavior. He should have been permitted to explain both the psychological condition and
the phenomenon of dissociation, and dissociation’s relationship to PTSD and [the]
defendant’s upbringing and traumatic experiences. He should have been permitted to
explain the bases for his opinions, including [the] defendant’s statements describing his
perception of the stabbing[]” (id. at p. 910). As well, he “should have been permitted to
testify that in [his] opinion, [the] defendant entered a dissociated state. He should also
have been able to testify, as he did, about dissociation: its physiological basis, its
psychosocial basis, and its behavioral manifestations even if, as Dr. Dondershine

26.
testified, ‘a lot of people’ who have reported experiencing dissociation have described it
as ‘I went on automatic.’ And, ‘[i]f de-linking or dissociation happens,’ a person’s
memory can be impaired, and can cause the person to act without conscious volition.”
(Id. at p. 911.)
The court concluded that the error was prejudicial under Watson because it
“effectively eviscerated any defense [the] defendant had to premediated and deliberated
murder” and “prevented the jury from properly evaluating evidence that would have been
relevant to its considerations of the self-defense, imperfect self-defense and heat of
passion instructions given .…” (Cortes, supra, 192 Cal.App.4th at p. 912.) Furthermore,
“[t]he prosecutor took full advantage of the court’s ruling in closing argument[,]” arguing
“that there was no alternative explanation for [the] defendant’s infliction of 13 stab
wounds, except premeditation and deliberation[; dismissing] Dr. Dondershine’s testimony
as ‘a lot of general information’[;] [and arguing] that PTSD was about warfare, not [the]
defendant, and repeatedly denigrat[ing] the evidence about [the] defendant’s upbringing
as so much whining .…” (Ibid.)
In Herrera, the defendant presented evidence that he was repeatedly sexually
molested between the ages of 8 and 11, he was raped when he was 15 years old, he was
subsequently raped again by the same man four years later, and he was repeatedly
punched in the face by his then-best friend after rebuffing that friend’s sexual advances.
(Herrera, supra, 247 Cal.App.4th at pp. 471–472.) Thereafter, in the two-year window
preceding the charge that he murdered a different friend, the defendant was diagnosed by
a psychiatrist with PTSD. (Id. at p. 474.) Prior to trial, a psychologist also evaluated the
defendant and concluded that he was suffering from PTSD and major depressive
disorder. (Ibid.) Neither the psychiatrist nor the psychologist thought the defendant was
malingering. (Ibid.)
At trial, the defense presented evidence that the defendant stabbed his friend after
the victim put his hand down the defendant’s pants, touched the defendant’s penis and

27.
then came at the defendant with a knife when rebuffed, triggering a flashback during
which the victim “‘became’” the men who abused the defendant as a child. (Herrera,
supra, 247 Cal.App.4th at p. 473.) During trial, the psychologist testified regarding
PTSD and peritraumatic dissociative state, which “‘occurs in response to something
extremely threatening that signals danger and possible harm.’ Someone experiencing this
state might feel ‘emotionally distant, which is called detachment,’ or feel ‘like it [is]
happening to someone else …, which is called derealization.’” (Id. at p. 475.) However,
the psychologist was precluded from giving her opinion that on the date of the murder,
the defendant was psychiatrically impaired or suffering from PTSD or peritraumatic
dissociative state. (Ibid.) The Court of Appeal concluded that the trial court prevented
the defendant from “present[ing] the critical evidence in support of his only defense:
expert testimony explaining how his past history of trauma was likely to affect his mental
state at the time of the offense.” (Id. at p. 480.) As such, the court found the error was
prejudicial. (Id. at pp. 478, 480.)
Here, Dr. Terrell and Dr. Blak were permitted to testify regarding the mental
disorders they believed defendant had, explain the bases for their diagnoses, and describe
the characteristics of those mental disorders. They were also permitted to give their
opinions that on the day of the crime, defendant was likely in the manic phase of bipolar
disorder. In addition, Dr. Terrell opined that defendant “very likely [had] some
depressive symptoms,” leading him to be suicidal and homicidal, and that he was likely
intoxicated that day given his claim during interrogation that he drank 12 beers and his
history of heavy, daily drinking. As well, Dr. Blak opined that defendant’s inability to
recall what happened that day was attributable to a fugue or dissociative state, which led
him to block out the crime. Under these circumstances, neither Cortes nor Herrera
supports defendant’s claim of error.

28.
 2. Hypothetical Questions
Nor was defendant precluded from relying on hypothetical questions. “‘Generally,
an expert may render opinion testimony on the basis of facts given “in a hypothetical
question that asks the expert to assume their truth.” [Citation.]’” (People v. Vang (2011)
52 Cal.4th 1038, 1045.) However, “‘a hypothetical question must be rooted in facts
shown by the evidence[]’” (ibid.), and it may not be used to elicit indirectly an opinion
regarding specific intent in contravention of section 29 (People v. Bordelon (2008) 162
Cal.App.4th 1311, 1327).
In this case, the prosecutor objected to the following question to Dr. Blak on the
basis that it misstated the evidence: “So when you have thought disorder, when you have
delusion, and when you have manic phase, you say that you end up doing something that
you don’t want to do, correct?” After the trial court sustained the objection, defense
counsel asserted he was asking a hypothetical question and the court responded that
hypothetical questions need to be based on the evidence, correctly observing that defense
counsel did not ask a question rooted in the facts of the case. Thus, the ruling did not
purport to bar counsel from asking a proper hypothetical question. Defense counsel
subsequently succeeded in obtaining an answer to the line of questioning he was pursuing
when he asked Dr. Blak if people with mental disorders “do things that they want to do?”
3. Limitation During Redirect Examination
Finally, what remains of defendant’s argument fails to demonstrate that the trial
court abused its discretion in sustaining the prosecutor’s objections during redirect
examination of Dr. Terrell and Dr. Blak. Defendant’s claim that his experts’ redirect
testimony was unduly restricted by the court, thereby undermining his defense, must be
viewed in the context of their earlier testimony, in which they were permitted to explain
their diagnoses of defendant, describe the characteristics of those disorders or conditions,
and opine on his likely mental state on the day of the crime. (People v. Nunn (1996) 50
Cal.App.4th 1357, 1365; People v. Young (1987) 189 Cal.App.3d 891, 906–907; cf.

29.
Coddington, supra, 23 Cal.4th at pp. 581–582; Herrera, supra, 247 Cal.App.4th at
pp. 474–478; Cortes, supra, 192 Cal.App.4th at pp. 910–912.)
The record expressly reflects the trial court’s awareness of and sensitivity to the
contours of permissible expert testimony. During Dr. Terrell’s direct testimony, the
parties discussed Coddington and Herrera outside the presence of the jury and the court
agreed with defense counsel that it was permissible to elicit testimony regarding whether
defendant’s behavior on the day of the crime was consistent with his diagnosed mental
disorder and how the mental disorder might affect him, as long as counsel did not veer
into areas such as how the disorder affected his intent or whether it prevented him from
forming intent. During Dr. Blak’s redirect testimony, the court again conferred with the
parties outside the presence of the jury after the prosecutor objected to defense counsel’s
question, which was framed to elicit the opinion that A.R. was not the target of
defendant’s destructive plan that day. The court stated it had reviewed Herrera again and
was giving defense counsel a lot of leeway but would not allow him to “back door in”
expert opinion evidence on defendant’s intent that day.
a. Dr. Terrell
Turning to the challenged rulings concerning Dr. Terrell’s testimony, the trial
court sustained the prosecutor’s objections to questions whether a person in a manic
phase “would end up making decision[s] to do something that they would not normally
do but for the mental illness,” whether the intent of someone with mental illness is
“affected by the mental illness[,]” and whether someone who is mentally ill or in a manic
phase has “the same intent to do things” as a person who is not mentally ill. The court
excluded this evidence on the basis that the questions went to the ultimate issue whether
defendant was able to form intent or whether he did form intent. (Coddington, supra, 23
Cal.4th at p. 582.)
Dr. Terrell and Dr. Blak testified regarding the impaired judgment, insight and
decision-making that accompany mental illness such as mania and schizophrenia. Within

30.
the context of redirect examination, which is where defendant’s challenge lies, Dr. Terrell
testified that people with mental illness do not make the typical mistakes that people
without mental illness make, mentally ill people have an impaired reality, and that
impaired reality leads them to make bad decisions. He also testified that depending on
the nature and severity of the mental illness, the person’s level of impairment can range
from mild to moderate to severe and the person may do things he or she would not do if
in a rational state of mind. Finally, responsive to his earlier testimony during cross-
examination that if someone manic makes the poor decision to punch someone else, it is
his or her decision to make a fist and punch, Dr. Terrell explained that a mentally ill
person “can form that intent to punch the other person in the nose, but that intent is based
upon faulty judgment or faulty insight, faulty reasoning due to that mental illness. Or,
someone who is manic can go into states of incredible rage and anger and do horrible
things and say horrible things they would not normally say or do if they were not in a[n]
irrational frame of mind.”
This record belies defendant’s claim that he was precluded from eliciting evidence
that mental illness can affect actions or intent. Defendant had the opportunity to present
relevant evidence regarding his mental disorder and his mental condition on the date of
the crime, and the court permitted inquiry into areas of impairment and impulsivity
during redirect examination. (People v. Young, supra, 189 Cal.App.3d at p. 907.) We
find no error.
b. Dr. Blak
During redirect examination of Dr. Blak, the trial court sustained the prosecutor’s
objections to the following conclusion: “A schizophrenic does not have an ability to put
the brakes on.” The court also sustained the prosecutor’s objection to the question, which
was prefaced by confirmation that defendant was suffering from schizophrenic thought
disorder on the day of the crime, whether someone suffering from the disorder “do[es]
things that they don’t want to do?”

31.
 However, the court permitted defense counsel to ask whether people with mental
disorders do things that they want to do, and Dr. Blak responded that “it’s a matter of
degree because there’s certain disorders that involve compulsion, which is engaging in an
act.” Although the court sustained the prosecutor’s objection and struck the last portion
of Dr. Blak’s answer that “[o]ne could argue if freewill would determine that they could
stop doing it[,]” Dr. Blak subsequently testified that matter of degree meant severity of
the mental illness and the court expressly permitted defense counsel to question Dr. Blak
regarding impulsivity. To that end, Dr. Blak responded affirmatively that in a rage, some
people cannot stop what they plan to do, they feel they have no control and they feel
compelled to act.
As with Dr. Terrell’s testimony and in the context of Dr. Blak’s testimony in its
entirety, we reject defendant’s claim that the trial court abused its discretion by
impermissibly limiting Dr. Blak’s ability to offer an opinion on mental illness and its
impact on intent. The record reflects otherwise.
IV. Cumulative Error
Finally, defendant claims cumulative error. “In examining a claim of cumulative
error, the critical question is whether [the] defendant received due process and a fair trial.
[Citation.] A predicate to a claim of cumulative error is a finding of error.” (People v.
Sedillo (2015) 235 Cal.App.4th 1037, 1068.) Even if we assume the trial court’s curative
instruction was erroneous under Mills, we conclude that defendant did not meet his
burden of demonstrating error with respect to the court’s evidentiary rulings and,
therefore, defendant’s claim of cumulative error necessarily fails. (People v. Williams
(2013) 56 Cal.4th 165, 201, disapproved on another ground by People v. Elizalde (2015)
61 Cal.4th 523, 538, fn. 9; People v. Sedillo, supra, at p. 1068; People v. Leeds (2015)
240 Cal.App.4th 822, 837.)

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 DISPOSITION
The judgment is conditionally reversed and remanded for an eligibility
determination under section 1001.36. In accordance with Frahs, supra, 9 Cal.5th at
page 641, “‘[i]f the trial court finds that [the defendant] suffers from a mental disorder,
does not pose an unreasonable risk of danger to public safety, and otherwise meets the six
statutory criteria (as nearly as possible given the postconviction procedural posture of this
case), then the court may grant diversion. If [the defendant] successfully completes
diversion, then the court shall dismiss the charges. However, if the court determines that
[the defendant] does not meet the criteria under section 1001.36, or if [the defendant]
does not successfully complete diversion, then his convictions and sentence shall be
reinstated.’”

MEEHAN, J.
WE CONCUR:

LEVY, Acting P.J.

SNAUFFER, J.

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