Filed 2/2/21 P. v. Hughes CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B299683
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA071692)
v.
WILLIAM FRANKLIN HUGHES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Charles A. Chung, Judge. Affirmed
and remanded with directions.
Elizabeth K. Horowitz, under appointment by the
Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Senior Assistant Attorney General, Steven D. Matthews and
David F. Glassman, Deputy Attorneys General, for Plaintiff
and Respondent.
_______________________________________________
INTRODUCTION
Appellant William Franklin Hughes fatally strangled
repairperson Lyndi Fisher when, for a second time, she
visited his house to repair his refrigerator. Charged with
Fisher’s premeditated murder, he entered pleas of not guilty
and not guilty by reason of insanity, resulting in the
bifurcation of his trial into guilt and sanity phases. At the
guilt phase, over appellant’s objection, the trial court
admitted evidence of an incident in which, several weeks
before Fisher’s killing, appellant made sexual advances to a
fellow college student at their school. Relying on this
evidence, the prosecution suggested that Fisher’s rejection of
a sexual advance by appellant might have motivated him to
kill her, but further argued such motivation was immaterial,
in light of compelling evidence that appellant had been the
initial aggressor, that he had battered Fisher to overcome
her resistance, and that he had crushed her neck for 90
seconds or more. Defense counsel, pointing to evidence that
appellant had a psychotic illness that caused paranoid
delusions, suggested appellant had been motivated by a
delusion that Fisher was planting or retrieving a
surveillance device in the refrigerator. Relying on evidence
2
of such delusions, defense counsel argued appellant had
acted in “imperfect” self-defense.
Also at the guilt phase, appellant’s father testified that
several weeks before Fisher’s killing, appellant had reported
an armed intruder in his house. Appellant’s father believed
the motive for this prior report of an intruder was
appellant’s desire to avoid blame for creating a mess in his
house. The jury heard recordings of false statements
appellant had made to detectives shortly after Fisher’s
killing, including the claim that at the insistence of an
armed intruder, he had been taking a 45-minute walk
around the neighborhood at the time of the killing. Without
objection, the court delivered both CALCRIM No. 362
(allowing the jury to infer appellant’s consciousness of guilt
from any knowingly false pretrial statements he had made
related to the offense) and CALCRIM No. 3428 (prohibiting
the jury from considering evidence of appellant’s mental
illness for any purpose other than determining his mental
state at the time of the offense). Appellant did not testify.
The jury convicted appellant of Fisher’s murder,
finding it to be premeditated and deliberate. At the sanity
phase, tried to the court, the guilt-phase evidence was
admitted into the record, along with additional expert
evidence. Only one expert, whom the court found the least
helpful, opined that appellant had been unable to
understand the moral wrongfulness of killing Fisher (the
only theory of insanity advanced by appellant). Again,
appellant did not testify. The court found appellant had
3
failed to prove insanity by a preponderance of the evidence.
At sentencing, defense counsel made an oral Romero motion
to strike a charged three-strikes enhancement (which the
court denied), but did not ask the court to strike a charged
serious-felony enhancement.1 The court sentenced appellant
to an aggregate term of 55 years to life, comprising a
25-years-to-life term on the first degree murder conviction
(doubled under the three strikes law) and a five-year term on
the serious-felony enhancement.
On appeal, appellant challenges the guilty verdict on
the grounds that: (1) no substantial evidence supported the
jury’s finding of premeditation and deliberation; (2) the trial
court prejudicially erred by admitting the evidence of
appellant’s sexual advances on his fellow student; (3) the
court prejudicially erred by failing to modify CALCRIM
No. 3428 to permit the jury to consider evidence of
appellant’s mental illness in deciding whether his false
pretrial statements to the detectives were knowingly false,
as necessary to support an inference of consciousness of
guilt; (4) many of the prosecutors’ remarks during closing
argument constituted misconduct; and (5) his trial counsel
were ineffective for failing to object to the admission of
testimony from appellant’s father regarding appellant’s
motive for reporting an intruder several weeks before
Fisher’s killing. Appellant also challenges the sanity verdict,
contending the trial court misapplied the law by relying on
1 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
4
its personal belief that finding appellant sane was necessary
to deliver justice to Fisher’s family, and asserting that the
court erred in various ways in describing and weighing the
sanity-phase evidence. We construe appellant’s assertion of
the latter errors as a contention that no substantial evidence
supported the sanity verdict under the proper legal standard.
Finally, appellant challenges his sentence on the ground
that his trial counsel were ineffective for failing to ask the
court to exercise its discretion, under Senate Bill No. 1393
(Stats. 2018, ch. 1013, §§ 1-2), to strike his serious-felony
enhancement. The People do not argue defense counsel had
a conceivable tactical purpose for failing to request the
striking of the serious-felony enhancement.
Though we find the admission of certain evidence
erroneous, we find no reversible error at the guilt or sanity
phases of appellant’s trial. We do conclude that defense
counsel’s failure to request the striking of the serious-felony
enhancement deprived appellant of effective assistance at
sentencing. Accordingly, we affirm the judgment, and
remand to the trial court with instructions to decide whether
to exercise its discretion to strike the serious-felony
enhancement.
PROCEEDINGS BELOW
A. Prosecution Case
The People charged appellant with Fisher’s willful,
premeditated, and deliberate murder (Pen. Code, §§ 187,
subd. (a), 189, subd. (a)). The People alleged that appellant
5
had been convicted in 2013 of making criminal threats (id.,
§ 422), and that this prior conviction was both a strike
within the meaning of the three strikes law (id., §§ 667,
subds. (b)-(i), 1170.12, subds. (a)-(d)) and a serious felony
within the meaning of Penal Code section 667, subdivision
(a).
Appellant entered pleas of not guilty and not guilty by
reason of insanity. Accordingly, his trial was bifurcated into
a guilt phase (tried to a jury) and a sanity phase (tried to the
court). (See Pen. Code, § 1026, subd. (a).) We summarize
the sanity phase in a later subsection of this opinion.
1. Fisher’s Repair Visits
In June 2017, appellant was living alone in a house his
parents had bought for him. Appellant’s father testified that
around that time, appellant reported that his refrigerator
was not keeping food cold, so his father examined it and
discovered a broken gasket. Appellant admitted he had
slashed the gasket because he thought “somebody was
putting radio transmitters in there” to spy on him.
Appellant’s father replaced the gasket, but the door was not
fully closing, so he asked his wife to place a repair order with
Arrow Appliance.
Fisher was then working for Arrow Appliance. On
June 17, 2017, Fisher visited appellant’s house and worked
on his refrigerator. Appellant and his mother were present.
Unable to complete the repair, Fisher ordered parts to be
used on a return visit.
6
Fisher returned to appellant’s house in her company
truck on July 14, 2017, at 6:09 p.m., as confirmed by a
tracking device installed on her truck. Fisher’s employer,
Carol Savoie, testified that Fisher sent her a text message
minutes before her arrival at appellant’s house, but Fisher
failed to respond to a series of text messages Savoie sent
between 6:45 p.m. and 8:30 p.m., even though Fisher was
supposed to pick up her paycheck from Savoie that evening.
She further testified that the tracking device confirmed that
someone started the truck’s engine at 8:50 p.m., but turned
it off within a minute, without moving the truck.
One of appellant’s neighbors testified that around 9:00
p.m. the same evening, she left her home and saw appellant
walking from his yard to Fisher’s truck, briefly looking
inside it, and entering his garage through the open garage
door, which he then closed. Savoie testified she drove to
Fisher’s truck (located by the tracking device) around 9:30
p.m., found no sign of Fisher inside other than her personal
cell phone and tools, and saw appellant standing outside his
house. She left without interacting with appellant.
2. Discovery of Fisher’s Battered Body
Around 11:30 p.m. on the night of Fisher’s second
repair visit, Los Angeles County Sheriff’s Department
Deputy Kenneth Towles responded to a 911 call from
appellant. Appellant silently directed him to the garage,
where he found Fisher’s body on the floor. He also found
clothing in the washing machine, which was running when
7
he arrived. A photograph of two “painter shifts” found in
appellant’s washing machine was admitted into evidence.
A medical examiner conducted an autopsy on Fisher
and opined that her cause of death was manual
strangulation. He testified that she had hemorrhages in the
interior muscles of her neck, indicating that sufficient
pressure had been applied to block her carotid arteries,
which carry blood to the brain. He further testified that in
general, blockage of the carotid arteries will not render the
victim unconscious until after 90 seconds. After 90 seconds,
the brain will be “on its way towards death” if oxygen is not
restored.
The medical examiner also identified dozens of bruises
and abrasions on Fisher’s body. Fisher had half a dozen in
the area of her neck (including her lower jaw and
sternocleidomastoid muscle). She had seven in the area of
her eyes, nose, and inner lip. She had numerous bruises and
abrasions on her forehead, chin, and cheek. Additionally,
she had bruises and abrasions on both legs and on her groin.
Finally, she had over a dozen bruises on her arms, and
abrasions and bruises on her hands.
The examiner testified that Fisher’s forearm injuries
were “defensive-type” injuries, suggesting she had sustained
them while “trying to block any kind of blow to her head or
chest.” He further testified the injuries to her hands were
“assault-type” injuries, suggesting she had punched her
assailant. Appellant’s DNA was found on Fisher’s forearms
and under the fingernails of her left hand.
8
3. Appellant’s Interviews with Detectives
Deputy Towles testified that appellant’s behavior at
the crime scene appeared “odd,” explaining, “[H]e displayed
very little emotion. He didn’t seem concerned that he had
just found a dead body in his garage. His answers to many
basic questions were short, or ‘I don’t know’ or ‘I guess.’
Little things like that.” Appellant’s face and hands were
extremely sweaty. Deputy Towles arranged for appellant to
be interviewed by Detectives Kasey Woodruff and Karen
Shonka at a police station, where appellant was advised of
his Miranda rights. The detectives conducted two recorded
interviews of appellant, both of which were played for the
jury.
The detectives first interviewed appellant at 5:45 a.m.
on the morning after the killing. (July 15, 2017). Appellant
told the detectives that after Fisher arrived and began
working on his refrigerator, he merely sat on the couch until
a large, dark-skinned intruder wearing dark clothes and
gloves -- whom he could not otherwise describe -- came
through the door and pressed a gun against his eye. The
detectives observed appellant had a black eye or similar
mark. Appellant further claimed the intruder commanded
him, at gunpoint, to take a walk. Appellant complied by
taking a 45-minute walk around his neighborhood before
returning home; he described his route to the detectives. He
found himself alone in the house, and spent two hours there
before finding Fisher’s body in the garage, even though
Fisher’s truck remained parked in front. He claimed not to
9
know what had happened to her. He acknowledged he was
responsible for the clothing being washed when the police
arrived. After concluding the interview, Detective Woodruff
viewed footage from a camera located along the route
appellant claimed to have walked, which contradicted
appellant’s claim.
Several hours after the first interview (around 11:15
a.m. on July 15, 2017), the detectives interviewed appellant
again. Despite being informed that the camera footage had
contradicted his claim to have walked his specified route,
appellant repeated his account of the intruder and his walk
around the neighborhood. Detective Woodruff told appellant
the detectives knew what happened, but did not know “why,
the reason.” Appellant responded, “The reason, the
reason . . . . It’s interesting.” When asked what the reason
was, appellant responded, “Well, the reason implicates me,
or --” When asked how it implicated him, appellant
responded, “It makes me guilty of a crime eventually.” He
then denied that he could tell the detectives why Fisher died,
and, when pressed, reiterated his claim to have left the
house before she died.2
2 According to evidence admitted only at the sanity phase,
appellant initiated a third interview with the detectives several
hours after the second. During this interview, appellant stated
that “a mental illness thing” had brought about Fisher’s killing,
which he characterized as an “instinctual move” to protect his
and his parents’ lives. Appellant identified no basis for this
alleged belief.
10
4. Appellant’s Prior Report of an Intruder
In May 2017, appellant moved into the house his
parents had bought for him. On a date soon thereafter,
appellant told his father that earlier that day, a man had
entered his house, forced him into a closet at gunpoint, and
ransacked the house. Appellant said he had called 911, but
the police had not responded to the call. Appellant’s father
went with appellant to the sheriff’s department, where he
discovered that appellant’s neighbor had made a 911 call, at
appellant’s request, earlier that day. The neighbor had
reported appellant’s claim about the intruder, but had called
again an hour later and suggested “something [was] wrong
with” appellant and appellant might “have autism.” As a
result of this second call, the department had not responded
to appellant’s house. At appellant’s father’s insistence, the
department sent officers to the house.
Appellant’s father also went to the house. He testified,
“I didn’t think it had been ransacked because there were
areas, targeted areas that had been disturbed, like a dresser
moved or pill bottles, prescription medicine strewn across
the kitchen.” It did not seem to him that there had been an
intruder. Without objection, he testified, “I thought he got
mad, knocked all of his stuff around. Didn’t want to have to
explain to his mother why he had messed up this beautiful
new house he just moved into. And told a story.”
On cross-examination, appellant’s counsel elicited
testimony concerning appellant’s long history of mental
illness and drug abuse. Appellant’s father testified that he
11
had not known appellant to have any drug abuse problem
since appellant completed a rehab program in 2015. But
appellant had continued experiencing paranoia between his
completion of rehab and Fisher’s killing. About five or six
times, appellant had thrown his phone on the ground and
stomped on it due to concerns about the phone’s connection
to the cloud.3 After appellant moved into the house in which
he killed Fisher, he told his father that he was hearing
things, such as a person trying to cut a hole in the roof.
Appellant glued shut the panel granting access to and from
the attic, and slept with a “samurai sword.” He “mentioned
a lot of things” about people, including white supremacists,
being “out to get him and his family.” His father found
knives hidden atop picture frames in the house.
5. Appellant’s Prior Assertion of a Mental
Health Defense
Appellant’s father testified that on October 31, 2012,
his wife (appellant’s mother) phoned from their home to alert
him that appellant had been screaming at her and throwing
things. He returned home, where appellant said he was
angry at his mother because she had refused to give him
money to buy “spice” (synthetic marijuana). Appellant’s
parents attempted to leave through the garage, but
appellant began choking his mother. He told his father he
3 When the police found appellant’s cell phone, there was
tape across the phone’s camera.
12
would stop if his father closed the garage door. Appellant’s
father complied, and appellant stopped choking his mother;
the choking had lasted 10 to 15 seconds. As a result of this
incident, appellant was charged in 2013 with an unspecified
crime. His parents provided the prosecutor with medical
records showing appellant had a history of mental illness,
and hired a defense attorney to advocate for appellant’s
treatment rather than punishment.
Forensic psychiatrist Kory Knapke, M.D., testified that
he conducted a psychological evaluation of appellant in
connection with the 2013 case. He had not evaluated
appellant again for the instant case, and he did not offer any
opinions regarding appellant’s mental state at the time of
the instant offense. Dr. Knapke testified that during his
2013 evaluation, appellant said that he had been psychotic
as a result of using spice at the time he choked his mother,
but that he was not acting on a delusion (instead, he was
acting on anger at being refused money to buy more spice).
Dr. Knapke further testified that spice can cause “very
violent psychotic symptoms . . . .” Appellant also told
Dr. Knapke that methamphetamine was his drug of choice.
Dr. Knapke testified that extended, heavy use of meth can
cause severe paranoid symptoms and violent behavior,
sometimes causing users to be “misdiagnosed with a major
mental illness, like schizophrenia, or bipolar disorder, or
schizoaffective disorder . . . .”
Dr. Knapke testified that in his report from the 2013
evaluation, he had opined that appellant was neither
13
psychotic nor delusional. He explained, “I was very
reluctant to give him a diagnosis of a psychotic disorder,
such as schizophrenia or bipolar disorder, given his
extensive history of drug abuse, which dated back to his
teenage years. [¶] And I recommended in my report that the
defendant remain clean and sober from all substances for a
good six months, and then be reevaluated once he is clean
and sober to determine if there’s any ongoing psychotic
symptoms or mood symptoms that might need [to be] treated,
so that we can more accurately give him the diagnosis that
truly fits with him.” Appellant’s attorney had disclosed
Dr. Knapke’s report to the prosecution in an attempt to
secure a more favorable result for appellant in the 2013 case.
Appellant was placed on probation as part of a plea
deal in the 2013 case. After his arrest for Fisher’s murder in
2017, during a recorded phone conversation appellant had in
jail (which was played for the jury), appellant made the
following aside: “I was here in 2013, for -- you know, I beat
50 years in 2013.”
6. The Arias Incident
a. Ruling on Admissibility
At the time he killed Fisher, appellant was enrolled as
a student at Antelope Valley College. Cinthia Arias was also
a student there. Before trial, the People filed a motion in
limine to introduce evidence of an incident several weeks
before Fisher’s killing, in which appellant made aggressive
sexual advances on Arias at their school. The People
14
expressed an intent to use this evidence to argue that
appellant made a sexual advance on Fisher. Anticipating an
objection that the evidence was barred by Evidence Code
section 1101, subdivision (a), which prohibits the admission
of evidence of a defendant’s uncharged conduct to prove he
acted in conformity with a propensity for such conduct, the
People argued the evidence was admissible to prove motive
under Evidence Code section 1101, subdivision (b), which
allows the use of evidence of a defendant’s uncharged act to
prove a fact “other than his or her disposition to commit such
an act.” Specifically, the People argued that by supporting
an inference that appellant made a sexual advance on Fisher,
the evidence supported a further inference that Fisher’s
rejection of this advance motivated appellant to kill her.
Appellant filed a motion in limine to exclude the evidence.
The trial court held a hearing on the admissibility of
evidence of the Arias incident. After the court noted there
was no independent evidence that appellant made a sexual
advance on Fisher, the prosecutor argued as follows: “I’m not
alleging a sexual assault because in my mind nothing like
that happened, but what did happen is he propositioned her.
She said no and he became angry and attacked her. And I’m
going to argue that with or without Miss Arias. But I think
that is something that will sound somewhat outlandish to a
lot of jurors if they don’t understand that he is a person who
is comfortable doing that.” The court ultimately accepted
this reasoning, stating, “I think what [the prosecutor is]
saying is, look, unlike most people, unlike most men,
15
[appellant] has a certain comfort level. It’s driven by a
motive for female companionship or for sex, but he has this
motive coupled with this comfortableness where he doesn’t
mind approaching women in ways that can be highly
offensive toward women. And that because he has exhibited
that comfort level just three weeks prior, that is
circumstantial evidence that that’s what happened in this
case. That when he propositioned the current victim in this
manner, it went bad in the sense that she reacted negatively,
perhaps even strongly. That then caused him to react and
there was this building up and escalation until there was
this physical alteration that led to death.” The court
concluded the evidence was admissible for the proffered
purpose under Evidence Code section 1101, subdivision (b).
b. Arias’s Testimony
Arias testified that in June 2017, several weeks before
Fisher’s killing, she visited the college’s office and saw
appellant, whom she did not know, sitting inside. While she
waited to speak with a college employee, appellant came up
behind her, and she felt an object strike her leg and fall to
the floor. She ignored it until appellant said, “Ma’am, you
dropped something on the floor.” She picked up the object
and, discovering it was a condom, discarded it, telling
appellant it was not hers. He reiterated that he had seen it
fall out of her pocket. The college employee then became
available to speak with Arias. During their conversation,
within earshot of appellant, Arias stated her phone number.
16
When Arias left the office, appellant followed her. She
testified, “He kept telling me -- he kept referring back to the
condom. Kept saying, ‘Ma’am, ma’am, I know it’s yours.’
Wanting me to show him how to use it because I was an
older woman. And by that point I got really scared so I ran
into my car and drove off. [¶] . . . [¶] Even though I could
have walked to where I was going.” She told appellant she
was married and uninterested, but he persisted in following
her to her car.
Arias circled the campus in her car to prevent
appellant from discerning her destination. When she parked,
she received a phone call from an unknown number, which
she answered. The caller identified himself as “the guy with
the condom incident,” and asked her to have coffee with him,
again referring to the condom and asking her to show him
how to use it. She said no, reiterated that she was married,
and hung up. Preparing to block his phone number, she
noticed she had received text messages from the same
number, including a message stating, “‘I find you very
attractive!!!’” Feeling “really scared,” she blocked the
number and reported the incident to the on-campus sheriff’s
office.
On cross-examination, Arias acknowledged that
appellant had not threatened her or displayed anger.
B. Defense Case
Appellant did not testify. He called only one witness,
psychiatrist Jack Rothberg, M.D., Ph.D. Dr. Rothberg
17
testified that mental health records dating back to 2003,
when appellant was 16 years old, reflected diagnoses of
ADHD and bipolar disorder. The records also reflected an
unusually large gap between appellant’s verbal IQ and
performance IQ, which was indicative of a problem in the
structure of his brain. A 2003 report of brain imaging
results reflected “a great many abnormalities,” including
abnormalities affecting areas of the brain controlling
emotions and decisionmaking. Other records indicated
appellant was placed on a psychiatric hold in 2011 as a
result of erratic behavior, including “running around naked
in the desert believing that people were trying to kill him.”
These records also stated that appellant denied his psychosis,
which Dr. Rothberg interpreted to show that appellant had
little insight into his medical condition, increasing the
likelihood he would believe his delusions were real and act
upon them. Later medical records were consistent with
these. Additionally, non-medical records from appellant’s
college indicated that appellant had cut the cord to a camera
during a computer class, for no apparent reason other than
presumed paranoia.
In addition to reviewing appellant’s medical records,
Dr. Rothberg received a summary of appellant’s father’s
description of appellant’s symptoms, and personally
examined appellant on January 23, 2019. Dr. Rothberg
opined, “He’s got major mental disorder, a psychosis, which
simply means he has delusions and hallucinations at times.”
He defined delusions as thoughts “out of touch with reality,”
18
such as a belief that one’s life is being threatened by
Martians, and hallucinations as false sensory perceptions.
Dr. Rothberg continued, “Now, to be more specific, it is
challenging because he has a second problem, which is the
substance abuse and, in particular, the use of
methamphetamine, which aggravates the psychosis. . . .
[O]rdinary people, if they use enough methamphetamine,
will become delusional. They will become paranoid, and they
may hear voices. So those two interact, and it is difficult to
know how much is one and how much is the other.” With
reference to Dr. Knapke’s 2013 report, he testified, “[I]f there
is ongoing use of drugs, then you really don’t know what’s
going to be left when the drugs stop and whether it is going
to go in one direction or another. So that’s why it is
difficult.” He concluded that appellant had a severe mental
illness, and that diagnoses of schizophrenia, bipolar disorder,
and schizo-affective disorder all “could potentially be
correct.”
Dr. Rothberg indicated that appellant’s symptoms were
not limited to hallucinations and delusions. Specifically, he
testified that appellant’s illness caused “substantially
impaired ability to make a rational decision.” Dr. Rothberg
elaborated, “He doesn’t have restraint. He can’t say, ‘Well, if
I do such and such, this will follow.’ So he’s just thinking
about that in a very kind of primitive, almost animal-like
way.”
On cross-examination, Dr. Rothberg testified that
appellant’s medical records made “many” references to
19
concerns of malingering, which he defined as “feigning or
pretending an illness that does not exist.” He further
testified, “[I]n this case, there is certainly evidence of the
capacity to malinger. [¶] . . . [¶] Not always being truthful,
exaggerating, taking advantage of certain situations. So I
think what we’ve got is some serious, real problems, and also
this additional component which we can’t really deny.”
Dr. Rothberg acknowledged he had concluded, in a written
report, that appellant had substantial antisocial personality
characteristics. He had further concluded appellant was
prone to violence, and could be manipulative, aggressive,
threatening, intimidating, and predatory.
The parties stipulated to the following testimony from
forensic psychiatrist Risa Grand, M.D., which was read into
the record: “The defendant meets criteria for unspecified
schizophrenia spectrum and other psychotic disorder. He
may meet diagnostic criteria for schizoaffective disorder
versus substance-induced psychosis. I do believe he
demonstrated symptoms of paranoia, a belief in a conspiracy
theory, and unusual presentation of seeming sweaty. He
may have been using methamphetamine at the time of the
instant offense. [¶] I do believe he has a major mental
illness, has received treatment for it since he was 15 years
old, and symptoms were present at the time of the instant
offense. He also has a history of cannabis use disorder,
amphetamine-type use disorder, and alcohol use disorder.”
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C. Jury Instructions
The trial court instructed the jury on premeditated and
deliberate murder, and further instructed the jury that it
could consider evidence of hallucinations, provocation, and
voluntary intoxication in deciding whether appellant
premeditated and deliberated. The court also delivered
instructions on two theories of voluntary manslaughter, viz.,
heat of passion and “imperfect” self-defense. Outside the
presence of the jury, the court declined to instruct the jury
on “complete” self-defense, explaining, “The defendant did
not testify. He did not claim self-defense. None of [his]
statements to the detectives asserted any type of self-defense.
There are no statements to the doctors claiming self-defense.
There were no pieces of physical evidence that indicated
self-defense. [¶] Now, the defendant did have a slight bruise
under one of his eyes, but that by itself, without anything
more, I don’t think is enough to give self-defense. [¶] We
have a victim who has strangulation marks, who was killed,
in that regard. We have the defendant with no injuries that
would indicate any type of need for a deadly use of force.”
The court instructed the jury, per CALCRIM No. 362,
that if appellant had made a false or misleading pretrial
statement related to the charged crime, “knowing the
statement was false or intending to mislead,” the jury was
permitted to infer that the statement showed he “was aware
of his guilt of the crime . . . .” The instruction continued, “If
you conclude that the defendant made the statement, it is up
to you to decide its meaning and importance.” The court
21
further instructed the jury, per CALCRIM No. 3428, that it
could consider evidence that appellant “suffered from a
mental disease or defect or disorder . . . 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.” Defense counsel did not object to
these instructions or request modification.
The court instructed the jury that it was permitted to
consider evidence of appellant’s uncharged conduct (i.e., the
Arias incident) in deciding whether appellant “had a
willingness to proposition women in certain ways . . . .” It
further instructed the jury that the attorneys’ arguments
were not evidence and should be disregarded to the extent
they were inconsistent with the jury instructions.
D. Guilt-Phase Arguments and Verdict4
The first prosecutor to deliver closing argument argued
that appellant and Fisher became embroiled in a conflict
upon her completion of her work on his refrigerator. The
prosecutor continued, “I don’t know what the conflict
necessarily is about, right? From the evidence we heard, it
sounds like knowing how he is, . . . probably he hit on her. . . .
And I’m sure she turned him down. [¶] . . . [¶] But it doesn’t
matter what the conflict is about. Whether it was that [i.e.,
4 We provide additional information concerning the
guilt-phase arguments in our discussion of appellant’s challenges
to many remarks made by the prosecutors.
22
Fisher’s rejection of an advance], whether it was that he was
unhappy with the refrigerator work, it cost too much money,
whatever it is, it does not really matter. The point is [he]
gets mad at her about something. And he punches her in the
face at least 24 times. Because . . . there are 24 separate
bruises or abrasions on her.”5 Noting that appellant was
much larger than Fisher, he argued appellant’s blows caused
Fisher to fall to the ground before he strangled her.6
The prosecutor argued the fact that appellant inflicted
numerous blows to Fisher’s body and strangled her for a
substantial period of time -- which he estimated as two
minutes, relying on the medical examiner’s testimony that
the brain began to die after 90 seconds -- proved the killing
was premeditated and deliberate. He asked the jury to
imagine that appellant was “crushing her with all of his
strength and weight to kill her” throughout the two minutes,
and argued, “That is an eternity that she is there struggling
and dying. And every one of those seconds, he could have
stopped. Don’t tell me he didn’t think about what he was
doing and decide to just do it. [¶] There is no way to do this
5 The prosecutor understated the number of bruises and
abrasions on Fisher’s body. The People observe, and appellant
does not dispute, that the medical examiner identified an
estimated 36 such injuries.
6 According to the medical examiner, Fisher was 5’ 4” tall,
and weighed 165 pounds. Appellant, who had played football at
his college the year before, told the detectives he was 6’ 1” tall,
and weighed nearly 300 pounds.
23
to another person and not realize what he is doing, and
decide to finish it. That is a first degree murder.”
The prosecutor argued there was no evidence that
Fisher provoked appellant. Acknowledging that the
evidence indicated Fisher punched appellant, he argued that
she did so only in self-defense. Noting her relatively smaller
frame, he characterized the theory that appellant acted in
self-defense as “ridiculous.”
Defense counsel argued the case was “about . . .
delusion and mental illness.” He asserted that the imperfect
self-defense theory of voluntary manslaughter is satisfied
where either the defendant’s belief in an imminent threat or
his belief in the need to counter the threat with deadly force
is “unreasonable, i.e., delusion.” Similarly, he asserted that
the theory concerns “[t]he notion someone’s head is not
screwed on right and delusional.” Relying exclusively on
evidence of appellant’s delusions, he argued appellant acted
on a belief that he needed to defend himself from Fisher.
Specifically, he implied appellant acted on a delusional belief
that Fisher was planting or retrieving a surveillance device
in the refrigerator.7
Defense counsel urged the jury to reject, as speculative,
the prosecution theory that appellant made a sexual advance
on Fisher. In the alternative, he asked the jury to assume
7 As explained below, defense counsel’s “delusional
self-defense” theory was invalid as a theory of manslaughter.
(People v. Elmore (2014) 59 Cal.4th 121, 130 (Elmore).)
24
the truth of the sexual-advance theory, and argued that
Fisher responded to the advance by insulting or punching
appellant, provoking him into a heat of passion.
Defense counsel argued the prosecution had failed to
prove premeditation and deliberation, particularly in light of
Dr. Rothberg’s testimony that appellant’s mental illness
interfered with his decisionmaking and impulse control. He
disputed the prosecutor’s assertions that appellant punched
Fisher 24 times and strangled her for two minutes,
characterizing the assertions as an attempt to inflate the
time in which appellant might have deliberated. He
reminded the jury that it could consider evidence of
hallucinations or voluntary intoxication in deciding
premeditation and deliberation, asking, “[H]ow can you
meaningfully deliberate if you’re laboring under [a]
delusion? . . . Are you meaningfully reflecting if you think
that there’s something -- somebody is planting a device in
your refrigerator?”
A different prosecutor delivered the rebuttal. While
suggesting that appellant made a sexual advance on Fisher
as he had made on Arias, she argued it was immaterial
whether appellant became angry with Fisher because of the
rejection of a sexual advance or any other reason, such as
dissatisfaction with the refrigerator repair. She argued that
premeditation and deliberation were shown by appellant’s
inflicting many blows on Fisher’s body and strangling her for
a substantial period of time.
25
The jury convicted appellant of murder and found the
murder premeditated and deliberate.
E. Sanity Phase
At the sanity phase, appellant waived his right to a
jury trial. Forensic psychiatrist Rose Pitt, M.D., was the sole
sanity-phase witness. A psychological report she had
written, based on interviews with appellant conducted over
six days between February 2018 and May 2019, was
admitted into evidence. All evidence from the guilt phase,
including the testimony of Drs. Grand, Rothberg, and
Knapke, was admitted into the sanity-phase record. Two
reports by Dr. Grand and two reports by Dr. Rothberg were
also admitted.
1. Dr. Pitt’s Report and Testimony
In her own words, Dr. Pitt’s report “exhaustively”
recited appellant’s statements. These included his
statement that he had resisted the instructions of voices that
“wanted him to do something against his values and morals;
they wanted him to kill an African-American.” In his first
five interviews with Dr. Pitt, appellant consistently claimed
he did not recall being present when Fisher was killed. In
his fifth interview, he told Dr. Pitt that while Fisher had
been working on the refrigerator, he had heard voices
talking about a surveillance device in the house. The voices
also had told him that he would “have to suck Black dicks for
the rest of his life,” and that a man he had stolen from was
26
going to kill him. He also had heard his parents’ voices
telling him to protect them. He told Dr. Pitt he had been
suspicious of Fisher because she had not really fixed
anything. But he maintained that he did not recall being
present when Fisher was killed.
In his sixth and final interview, appellant told Dr. Pitt
that he recalled fatally strangling Fisher. He again claimed
to have heard his parents’ voices telling him to protect them,
but clarified that he had not heard any voice telling him to
kill Fisher. Instead, he had grown suspicious of her because
she had looked under the refrigerator, put something in her
pocket, and failed to accomplish anything helpful. He had
concluded she was present to use a surveillance device to
collect evidence related to his theft from one man and his
unspecified connection to another man. He had further
concluded she was a “snitch” who would deliver this evidence
to the men, who would then kill him and his parents. He
had therefore ambushed her from behind, causing her to
strike him in an attempt to defend herself. After she had
fallen unconscious, he had “‘felt remorse,’” moved her to a
couch, and unsuccessfully attempted to restore her breathing.
He told Dr. Pitt, “‘It was horrific, I’m not sitting here making
excuses, I am just telling you why I did it.’” Dr. Pitt
concluded, “He was very conflicted about hurting her but
wanted to prevent her from giving the recording devi[c]e to
someone who would then kill him and his family.”
Dr. Pitt opined that appellant had a psychotic illness
independent of any substance use disorder, and that he had
27
not malingered. She concluded that appellant had
understood the nature of his actions at the time he killed
Fisher. She further concluded, “[Appellant] did understand
the difference between right and wrong but not the
wrongfulness of his actions at the time of the instant offense
due to his psychotic mental illness.” Similarly, she testified,
“I believe that he understood that to kill someone was wrong,
but he committed the crime because of his delusional beliefs
that the victim [Fisher] . . . was in collusion with other
people that wanted to hurt him and that he was going to be
killed and/or his family.” More specifically, she opined that
appellant had believed Fisher would plant or retrieve a
surveillance device and thereby “provide information to
other people who were going to hurt him . . . .”
2. Dr. Grand’s Reports
Dr. Grand’s first report was prepared in September
2018, after an examination of appellant the month before.
She opined that appellant had understood the nature and
quality of his actions at the time of Fisher’s killing. She
indicated she was unable to form an opinion on whether he
had understood the wrongfulness of his actions, as appellant
had been unable or unwilling to discuss Fisher’s killing with
her. She noted, “He minimized his ability to remember what
happened on the day of the instant offense and did not want
to implicate himself, which directly is concerning and goes
against being able to plead [not guilty by reason of
insanity].”
28
Dr. Grand’s second report was prepared in June 2019,
after she had reviewed additional materials, including
Dr. Pitt’s report and an investigator’s notes from a
November 2018 interview of appellant. According to
Dr. Pitt’s report, appellant claimed that he had been
uncomfortable during Dr. Grand’s examination due to the
proximity of corrections officers, and that Dr. Grand had
spoken with him for only a short time before abruptly
terminating her examination when he failed to immediately
respond to a question about Fisher’s killing. Dr. Grand
acknowledged that she had examined appellant near
corrections officers, but found his description of her
examination misleading, noting she had spoken with
appellant for nearly an hour before he refused to discuss the
killing.
The investigator’s notes indicated that appellant had
given an account of the killing similar to his account in his
final interview with Dr. Pitt: Fisher’s behavior made him
suspicious and led him to conclude that she was planting a
surveillance device for a purpose related to his prior theft
from the Aryan Brotherhood. He heard his parents’ voices
telling him to protect them, leading him to believe that
Fisher’s surveillance would eventually endanger his and his
parents’ lives. He strangled Fisher for 60 seconds, rendering
her unconscious, and then strangled her for another 30
seconds to ensure she was dead. Appellant told the
investigator, “‘I didn’t want her to be alive at all. I didn’t
want her to snitch me out and hurt me and my family.’” He
29
further stated he had searched Fisher’s body, found her
driver’s license, and wiped his fingerprints off the license.
Dr. Grand opined that the evidence for an insanity
finding was “extremely” weak. She explained, “With regard
to moral and legal wrongfulness, while it is possible that he
did not at the instant time of the crime appreciate the moral
or legal wrongfulness of his actions, there is more data in my
mind to suggest that he did understand that it was wrong,
based on the fact that he has given inconsistent stories and
accounts of the reasons for his actions of what occurred that
day, his attempt to clean the crime scene including wiping
fingerprints, his lack of expression of concern for these overt
delusions and auditory hallucinations he stated he
experienced not being shared with police officers during
interviews initially[,] and . . . [appellant’s] inconsistent
account of my interactions with him in [Dr. Pitt’s] report,
which leads me to believe that the defendant habitually
misinterprets situations to his benefit, lies, and may even
overstate symptoms and pejorative actions towards him.”
3. Dr. Rothberg’s Reports
Dr. Rothberg’s first report was prepared in January
2019, after an examination of appellant earlier that month.
During the examination, appellant “acknowledge[d] that
many of the things he had said to the detective[s] were
fabricated lies to avoid criminal responsibility.” He further
acknowledged that he had strangled Fisher, claiming to have
heard his parents’ voices telling him to protect them.
30
Appellant did not claim to have believed that Fisher was
planting or retrieving a surveillance device, or that she
would deliver information to anyone who would kill him or
his parents; rather, he claimed to have believed that Fisher’s
actions would “manipulate him to do things for blacks, like
suck their dicks.” He claimed to have felt he was in jeopardy,
but acknowledged that Fisher had done “nothing specific” to
cause him to feel that way. Dr. Rothberg did not expressly
address whether appellant had understood the wrongfulness
of the killing.
Dr. Rothberg’s second report was prepared in May
2019, after Dr. Rothberg had reviewed additional documents,
including records of appellant’s treatment at Antelope Valley
Rehabilitation Center in 2015. These records “confirm[ed]
the presence of very substantial polysubstance abuse,” and
indicated that appellant had a “long history” of both
malingering and violence, including violence “apart from
psychosis . . . .” Dr. Rothberg found the additional evidence
of malingering “not completely surprising, especially in light
of [appellant’s] concocted story to the police regarding what
had happened during the murder.” Again, Dr. Rothberg did
not expressly address whether appellant had understood the
wrongfulness of the killing. Instead, he concluded, “All I can
say is that [appellant] certainly has a psychotic disorder,
that he becomes very violent and agitated when he is not on
medication, that he has at times heard voices, but that he
also has substantial antisocial personality characteristics, is
prone to violence and acting-out behavior, in addition to
31
substance abuse. One just cannot be certain what
percentage of any of that mixture contributed to the murder
of the victim in this case. I believe the most likely
explanation is that it is a combination of severe mental
disorder, combined with very substantial antisocial
personality characteristics.”
4. Sanity-Phase Arguments
Appellant’s counsel argued appellant had been
incapable of understanding the moral wrongfulness of killing
Fisher at the time he killed her. Counsel urged the court to
accept Dr. Pitt’s opinion to that effect, arguing she was the
most reliable expert because she had spent the most time
with appellant. He observed that appellant had told both
Dr. Pitt and Dr. Rothberg that the killing resulted from a
delusion.
The prosecutor urged the court to accept Dr. Grand’s
opinion that appellant likely had understood the moral
wrongfulness of killing Fisher. He argued Dr. Pitt’s contrary
opinion was unreliable, in part because she had relied on
appellant’s report of a delusion that Fisher’s planting or
retrieval of a surveillance device would eventually endanger
his and his parents’ lives, despite appellant’s failure to
report a delusion of that nature in his first five interviews
with her. The prosecutor argued that appellant’s
understanding of the wrongfulness of the killing was
reflected in his attempts to hide or destroy evidence, his
jailhouse statement to a friend that he had previously beaten
32
a case in which he had faced a 50-year sentence, and his
statement to the detectives that the reason for the killing
implicated him and made him guilty of a crime.
In rebuttal, appellant’s counsel again argued that the
record supported an inescapable conclusion that appellant
had experienced “paranoid schizophrenic delusional
thinking” at the time of the offense. He neither specified the
nature of appellant’s reported delusions, nor related them to
appellant’s ability to understand the wrongfulness of the
killing.
5. Sanity Verdict
The trial court found (as the parties had not disputed)
that appellant had a mental disease or defect, but that he
had understood the nature and quality of his actions at the
time of the offense. The court further found that appellant
had failed to establish, by a preponderance of the evidence,
that he had been unable to understand the moral
wrongfulness of his actions at the time of the offense.
The court acknowledged that the evidence of
appellant’s delusions indicated that at the time of the offense,
appellant “lived in [an] altered reality to a degree where he
felt that people were pursuing him.” However, the court
found the nature of appellant’s delusions at the time of the
offense to be critical, finding “he was not under the delusion
that he had to kill [Fisher] for his protection or his family’s
protection.” The court reasoned that such a delusion was
inconsistent with appellant’s actions, inferring appellant’s
33
consciousness of guilt from, inter alia, the following: (1)
appellant’s attempts to hide or destroy evidence, reflected in
his dragging Fisher’s body from the kitchen to the garage
and washing clothing immediately after the killing; (2)
appellant’s “elaborate” false statements to the detectives
about an intruder, which displayed “a level of
sophistication”; and (3) appellant’s claim to Dr. Pitt, which
the court found to be false, that he had attempted to place
Fisher on a couch and restore her breathing. Among the
four experts who had provided evidence -- Drs. Grand,
Rothberg, Knapke, and Pitt -- the court found Dr. Pitt the
least helpful, reasoning that her reliance on appellant’s
statements had been excessive and “unquestioning,” in light
of her failure to address inconsistencies in his statements.
The court concluded, “This [decision] weighed heavily
on my mind last night. I was very well aware that if I found
him sane and if I got it wrong, that he would be spending a
lifetime in some very difficult conditions. . . . I have family
members who are dealing with . . . other mental issues, and I
even thought about . . . how would I feel if my family
member . . . were put into a prison situation, wouldn’t I want
something more for them? And so I’m keenly aware of the
implication of my decision. It was a hard decision but I
think I need to make the right decision. And so I ultimately
find him sane. [¶] I wish that weren’t the case. I wish we
could do something else, but I think ultimately, justice for
the family and just the right result drives this decision.”
34
F. Sentencing
Appellant admitted the truth of the three-strikes and
serious-felony allegations concerning his 2013 conviction for
criminal threats. Appellant’s counsel made an oral Romero
motion to strike the three-strikes enhancement, submitting
on the 2013 conviction’s age and, generally, the record before
the court. The court denied the motion, observing that the
2013 conviction was not very remote in time and finding that
appellant fell squarely within the spirit of the three strikes
law. Appellant’s counsel did not ask the court to exercise its
discretion to strike the serious-felony enhancement.
The court sentenced appellant to an aggregate term of
55 years to life, comprising a 25-years-to-life term on the
first degree murder conviction (doubled under the three
strikes law) and the five-year serious-felony enhancement.
Appellant timely appealed.
DISCUSSION
Appellant challenges the guilty verdict on the grounds
that (1) no substantial evidence supported the jury’s finding
of premeditation and deliberation; (2) the trial court
prejudicially erred by admitting the evidence of the Arias
incident; (3) the court prejudicially erred by failing to modify
CALCRIM No. 3428 to permit the jury to consider evidence
of appellant’s mental illness in deciding whether his false
pretrial statements to the detectives were knowingly false,
as necessary to support an inference of consciousness of
guilt; (4) many of the prosecutors’ remarks during closing
35
argument constituted misconduct; and (5) his trial counsel
were ineffective for failing to object to the admission of
testimony from appellant’s father regarding appellant’s
motive for reporting an intruder several weeks before
Fisher’s killing. Appellant also challenges the sanity verdict,
contending the trial court misapplied the law by relying on
its personal belief that finding appellant sane was necessary
to deliver justice to Fisher’s family, and asserting that the
court erred in various ways in describing and weighing the
sanity-phase evidence. We construe appellant’s assertion of
the latter errors as a contention that no substantial evidence
supported the sanity verdict under the proper legal standard.
Finally, appellant challenges his sentence on the ground
that his trial counsel were ineffective for failing to ask the
court to exercise its discretion to strike his five-year serious-
felony enhancement.
A. Premeditation and Deliberation
Appellant contends no substantial evidence supported
the jury’s finding that his murder of Fisher was
premeditated and deliberate.
1. Principles
A decision to kill is “premeditated” if considered
beforehand and “deliberate” if resulting from careful thought
and weighing of competing considerations. (People v. Lee
(2011) 51 Cal.4th 620, 636.) The required extent of reflection
may occur quickly. (Ibid.) “A finding of deliberation and
36
premeditation is not negated by evidence a defendant’s
mental condition was abnormal or his perception of reality
delusional unless those conditions resulted in the failure to
plan or weigh considerations for and against the proposed
course of action.” (People v. Stress (1988) 205 Cal.App.3d
1259, 1270; accord, People v. Bobo (1990) 229 Cal.App.3d
1417, 1434, review granted Oct. 11, 1990 (S016988) and
opinion superseded (Cal. 1990) 274 Cal.Rptr. 370, and
publication ordered Dec. 11, 1991 (Cal. 1991) 3 Cal.Rptr.2d
677.)
In assessing the sufficiency of evidence of
premeditation and deliberation, courts often consider three
“Anderson factors”: planning, motive, and manner of killing.
(People v. Shamblin (2015) 236 Cal.App.4th 1, 10 & fn. 16
(Shamblin), citing People v. Anderson (1968) 70 Cal.2d 15,
26-27.) The Anderson factors are merely guidelines. (People
v. Gonzalez (2012) 54 Cal.4th 643, 663.) Although motive is
one Anderson factor, “the lack of a discernable rational
motive does not preclude a conviction for first degree
premeditated murder.” (People v. Whisenhunt (2008)
44 Cal.4th 174, 202; accord, People v. Thomas (1992)
2 Cal.4th 489, 519 (Thomas) [“‘A senseless, random, but
premeditated, killing supports a verdict of first degree
murder’”].)
“In reviewing a sufficiency of evidence challenge, we
view the evidence in the light most favorable to the verdict
and determine whether any rational trier of fact could have
found the essential elements of the crime proven beyond a
37
reasonable doubt.” (People v. Gonzalez, supra, 54 Cal.4th at
653.) We do not review “the theories articulated in the
prosecutor’s argument,” but instead review “the evidence
presented and the possible inferences drawn therefrom . . . .”
(People v. Perez (1992) 2 Cal.4th 1117, 1125-1126; accord,
People v. Clark (2011) 52 Cal.4th 856, 947.)
2. Analysis
Substantial evidence supported the jury’s finding of
premeditation and deliberation. The manner in which
appellant killed Fisher strongly supported the jury’s finding.
The medical examiner’s testimony supported findings that
appellant applied sufficient pressure to Fisher’s neck to
cause internal bleeding and block her carotid arteries, and
maintained that level of pressure for at least 90 seconds.
(See Shamblin, supra, 236 Cal.App.4th at 11 [evidence that
defendant “applied significant force to the victim’s neck for a
significant period of time” weighed in favor of finding
premeditation and deliberation].) Further, the jury
reasonably could have inferred that appellant dealt Fisher a
series of blows before the fatal strangling in order to
overcome her resistance, as evidenced by (1) Fisher’s many
bruises and abrasions; (2) the medical examiner’s
interpretation of Fisher’s wounds as evidence that she had
attempted to defend herself, both by blocking a blow to her
chest or head, and by punching her assailant; (3) the
evidence of appellant’s DNA under Fisher’s fingernails; and
(4) appellant’s black eye. (See id. at 12 [defendant’s hitting
38
victim’s head several times, while victim fought back,
“necessarily prolonged the duration of defendant’s attack
and thus afforded him additional time to deliberate on his
decision to kill the victim” (footnote omitted)].) The jury
reasonably could have inferred that in the course of
battering Fisher to overcome her resistance and crushing
her neck for 90 seconds or more, appellant considered what
he was doing and made a deliberate decision to end Fisher’s
life. (See ibid. [evidence of approximately five-minute
strangulation preceded by struggle was “substantial
evidence of premeditation and deliberation in itself”]; cf.
People v. Williams (2018) 23 Cal.App.5th 396, 412 [where
“the victim was stabbed twice in the neck, had a defensive
cut on her thumb, and had recent blunt force injuries,” jury
reasonably could have interpreted victim’s injuries as
evidencing premeditation and deliberation].)
Evidence of motive further supported a finding of
premeditation and deliberation, as the jury reasonably could
have inferred that appellant was motivated to kill Fisher in
retaliation for her perceived role in planting or retrieving a
surveillance device in his refrigerator. Indeed, appellant’s
own counsel implied this was his motive. It is immaterial
that the prosecution did not argue this motive. (See People v.
Perez, supra, 2 Cal.4th at 1125-1126; People v. Clark, supra,
52 Cal.4th at 947.) It is also immaterial that this motive
was delusional. (See People v. Bobo, supra, 229 Cal.App.3d
at 1433-1436 [substantial evidence supported jury finding
that defendant’s killing of her children was premeditated
39
and deliberate, where defendant was motivated by paranoid
delusion that killing was necessary to save children from
worse fate, and defendant was “purposefully planning and
acting in the context of that delusion”]; People v. Stress,
supra, 205 Cal.App.3d at 1268-1271 [“strong” evidence
supported trial court’s finding, after bench trial, of
premeditation and deliberation, where defendant’s killing of
his wife was motivated by desire to draw public attention to
his delusional conspiracy theories, even though trial court
found this motive delusional and “‘crazy’”].)
In sum, the jury’s finding of premeditation and
deliberation was supported by substantial evidence. Though
the Anderson factors are merely guidelines, they support our
conclusion, as there was both evidence of motive and strong
manner-of-killing evidence.
B. Evidence of Uncharged Conduct
Appellant contends the trial court prejudicially erred
by admitting evidence of the Arias incident, which he argues
should have been excluded under the relevance rule,
Evidence Code section 1101, or Evidence Code section 352.
We agree the evidence was admitted in violation of Evidence
Code section 1101. However, we conclude the error was
harmless.
1. Principles
Generally, “evidence of a person’s character or a trait of
his or her character,” including such evidence in the form of
40
“evidence of specific instances of his or her conduct,” is
inadmissible “when offered to prove his or her conduct on a
specified occasion.” (Evid. Code, § 1101, subd. (a).) This rule
does not prohibit the admission of “evidence that a person
committed a[n] . . . act when relevant to prove some fact
(such as motive . . .) other than his or her disposition to
commit such an act.” (Id., § 1101, subd. (b).) “‘[T]he
probativeness of other-crimes evidence on the issue of motive
does not necessarily depend on similarities between the
charged and uncharged crimes, so long as the offenses have
a direct logical nexus.’”8 (People v. Fayed (2020) 9 Cal.5th
147, 191 (Fayed).)
The erroneous admission of evidence violates a
defendant’s federal due process rights if it renders the trial
fundamentally unfair. (People v. Covarrubias (2011) 202
Cal.App.4th 1, 20 (Covarrubias); cf. People v. Abilez (2007)
41 Cal.4th 472, 503 [exclusion of proffered defense evidence
violates federal constitutional right to present defense only
in “extraordinary and unusual” circumstances].) Otherwise,
the erroneous admission of evidence violates only state law
8 The People assert that People v. Daveggio and Michaud
(2018) 4 Cal.5th 790 established an eight-part test for evaluating
the admissibility of evidence of uncharged conduct. Not so. At
the cited portion of Daveggio, our Supreme Court merely noted,
as factual background, the trial court’s articulation of eight
factors it considered in deciding whether evidence of uncharged
conduct was inadmissible under Evidence Code section 352. (Id.
at 822.)
41
and is reviewed for prejudice under the standard established
in People v. Watson (1956) 46 Cal.2d 818, requiring reversal
only if it is reasonably probable that the defendant would
have obtained a more favorable result had the evidence been
excluded. (Covarrubias, supra, 202 Cal.App.4th at 21.) A
“‘reasonable’” probability under this test is one sufficient to
undermine the reviewing court’s confidence in the outcome.
(In re Richards (2016) 63 Cal.4th 291, 312-313.)
2. Error
We conclude the trial court erred in admitting evidence
of the Arias incident and in instructing the jury that it could
consider such evidence in deciding whether appellant had “a
willingness to proposition women in certain ways . . . .” The
evidence of appellant’s actions toward Fisher was not
admitted to prove a fact “other than his . . . disposition” to
commit such actions, as necessary to qualify for admission
under Evidence Code section 1101, subdivision (b). Though
the evidence was ostensibly offered and admitted to prove
motive, it was probative of motive only through the following
series of inferences: (1) appellant had a propensity for
making sexual advances on unfamiliar women, as he did
with Arias; (2) appellant acted in conformity with that
propensity by making a sexual advance on Fisher; (3) Fisher
rejected his advance; and (4) Fisher’s rejection motivated
appellant to kill her in retaliation. Evidence Code section
1101, subdivision (a), barred use of the evidence to prove the
first two inferences. Without the prohibited propensity
42
inferences, the Arias incident had no logical nexus to the
instant offense, as necessary to render the Arias incident
admissible to prove motive. (See Fayed, supra, 9 Cal.5th at
191; cf. People v. Guerrero (1976) 16 Cal.3d 719, 726-729
[trial court abused its discretion by admitting evidence of
defendant’s prior rape of unrelated woman for purpose of
proving defendant killed murder victim in course of
attempted rape, where there was no independent evidence
defendant attempted to rape murder victim].)9
9 The cases on which the People rely do not assist them. In
most, the courts deemed uncharged conduct admissible due to its
similarities to the charged conduct. (See People v. Spector (2011)
194 Cal.App.4th 1335, 1381-1385 [in prosecution for defendant’s
murder of woman, trial court did not err by admitting “testimony
from five women who, over a 20-year period, were the victims of
armed assaults by [defendant]” to prove motive, where record
revealed ten similarities among prior assaults, many of which
were shared by charged offense]; People v. Kelly (2007) 42 Cal.4th
763, 785-786 [in prosecution for defendant’s murder of woman
met at fitness center in his apartment, evidence of defendant’s
assault on other woman in same apartment several days earlier
was admissible as part of “remarkably similar and consistent
pattern” of luring women from fitness center and other locations
to his apartment in order to rob and rape them]; People v. Kipp
(1998) 18 Cal.4th 349, 370-371 [uncharged and charged acts were
“sufficiently similar to support an inference that defendant
harbored the same intent” in committing both, where “the
number and the distinctiveness of the shared characteristics”
revealed “a highly distinctive pattern”].) In another, the court
relied on a logical nexus between the charged and uncharged
conduct independent of any prohibited propensity logic;
specifically, the uncharged conduct suggested the defendant
(Fn. is continued on the next page.)
43
3. Prejudice
We find no extraordinary circumstances of the type
necessary to render the admission of the challenged evidence
a federal constitutional violation. (See Covarrubias, supra,
202 Cal.App.4th at 20-21; People v. Abilez, supra, 41 Cal.4th
at 503.) Thus, we ask only whether it is reasonably probable
that appellant would have obtained a more favorable result
had the evidence been excluded. (See Covarrubias, supra, at
20-21.) We conclude it is not.
The jury was not faced with a close case. Appellant’s
counsel properly conceded, in the face of overwhelming
evidence, that appellant intentionally killed Fisher, leaving
the jury to decide only whether the killing was voluntary
manslaughter or murder and, if murder, whether it was
premeditated and deliberate. The case for murder was
overwhelming. Appellant’s heat of passion claim was
founded on an admittedly speculative inference that
appellant made a sexual advance on Fisher -- an inference
his own counsel urged the jury to reject.10 His imperfect
needed money at the time of the charged conduct, supplying a
motive to rob. (See People v. Demetrulias (2006) 39 Cal.4th 1,
14-15.) And in the People’s final cited case, we held uncharged
conduct inadmissible to prove motive for the same reason we do
here, viz., its lack of any logical nexus to the charged conduct.
(See People v. Scheer (1998) 68 Cal.App.4th 1009, 1015,
1019-1020.)
10 Appellant did not rely on evidence of delusions to support
his heat of passion claim. Nor could he. (See People v. Padilla
(2002) 103 Cal.App.4th 675, 679 [“A perception with no objective
(Fn. is continued on the next page.)
44
self-defense claim was premised on his counsel’s assertion
that he acted on a purely delusional perception of Fisher as a
threat, and was therefore invalid at the guilt phase. (See
Elmore, supra, 59 Cal.4th at 146 [“defendants who
mistakenly believed that actual circumstances required their
defensive act may argue they are guilty only of voluntary
manslaughter, even if their reaction was distorted by mental
illness. But defendants who contend they killed in
self-defense because of a purely delusional perception of
threat must make that claim at a sanity trial”].)11 Even
disregarding the invalidity of his “‘delusional self-defense’”
claim (id. at 130), there was insufficient evidence to satisfy
the imperfect self-defense doctrine’s requirement of an
honest belief in an “‘imminent’” threat of death or great
bodily injury (id. at 134). Nothing but speculation could
reality cannot arouse the passions of the ordinarily reasonable
person”].)
11 In support of his challenges to the sanity verdict, appellant
quotes Elmore’s conclusion that a self-defense claim based “‘solely
on [a] delusion’” that allegedly “‘caused the defendant to perceive
an illusory threat’” is a claim of insanity, and argues he
“perceive[d] an illusory threat” in this manner. (Elmore, supra,
59 Cal.4th at 140.) But in his challenges to the guilty verdict,
appellant fails to acknowledge that under Elmore, it was
improper for his counsel to rely on identical reasoning to urge
reduction of the murder to voluntary manslaughter. (See id. at
145 [“a claim of delusional belief in the need for self-defense is
reserved for the sanity phase, where it may result in complete
exoneration from criminal liability. [Citation.] It may not be
employed to reduce a defendant’s degree of guilt”].)
45
support a finding that appellant drew a connection between
Fisher and any of his prior delusions, other than his delusion
concerning a surveillance device in the refrigerator she was
repairing. There was no evidence appellant irrationally
perceived surveillance as an imminent physical threat.
Indeed, appellant neither testified nor claimed, in his
admitted pretrial statements, that he had perceived Fisher
as an imminent physical threat. Faced with the compelling
physical evidence that appellant was the aggressor, no
reasonable juror could have found a reasonable doubt
whether appellant had acted on such a perception.
The case for premeditation and deliberation was also
strong. As explained above, the evidence that appellant
battered Fisher to overcome her resistance and crushed her
neck for 90 seconds or more strongly supported an inference
that appellant considered what he was doing and made a
deliberate decision to end Fisher’s life. And the evidence
reasonably suggested a motive for doing so, viz., retaliation
for her perceived role in planting or retrieving a surveillance
device in the refrigerator she was working on. This motive
was consistent with Dr. Rothberg’s testimony that appellant
had substantial antisocial personality characteristics,
including tendencies toward violent and predatory behavior.
In the face of this evidence, appellant neither testified nor
previously claimed that his intent to kill had been impulsive
rather than calculated; instead, in his only admitted
statements, he denied killing Fisher at all.
46
On this record, we find no reasonable likelihood
appellant would have obtained a more favorable result had
the evidence of the Arias incident been excluded.
Appellant’s behavior toward Arias was hardly inflammatory
compared to Fisher’s brutal killing, and to the unchallenged
evidence that appellant had choked his mother for refusing
to pay for drugs. Further, contrary to appellant’s contention,
the evidence was not essential to “the prosecution’s main
theory of the case . . . .” On the contrary, both prosecutors
argued it was immaterial whether appellant attacked Fisher
because of her rejection of a sexual advance (the only fact
they sought to prove through the challenged evidence), or for
some other reason.
In sum, we conclude that even had the court excluded
the evidence of the Arias incident, the jury would have found
appellant guilty of premeditated and deliberate murder. We
therefore find the evidence’s admission harmless. (See In re
Richards, supra, 63 Cal.4th at 312-313.)
C. CALCRIM No. 3428
Appellant contends the trial court prejudicially erred
by failing to modify CALCRIM No. 3428 (prohibiting the jury
from considering evidence of appellant’s mental illness for
any purpose other than determining his mental state at the
time of the offense) to permit the jury to consider evidence of
his mental illness in deciding whether his false pretrial
statements to the detectives were knowingly false, in light of
the court’s delivery of CALCRIM No. 362 (allowing the jury
47
to infer consciousness of guilt from any knowingly false
pretrial statements related to the offense). He acknowledges
his counsel did not object or request modification, but argues
(1) the contention was not forfeited because the error
violated his federal due process rights; and (2) his counsel
was ineffective for failing to object or request modification.
We conclude that defense counsel’s failure to object forfeited
the contention, and that this failure did not render counsel’s
assistance ineffective.
People v. McGehee (2016) 246 Cal.App.4th 1190
(McGehee), on which both parties rely, is directly on point.
There, at the guilt phase of the defendant’s trial for murder
of his mother, the jury heard evidence that the defendant, in
order to prevent discovery of his mother’s body, attempted to
keep his sister away from the body and made false
statements to her, including statements implying their
mother was still alive. (Id. at 1197-1199, 1204.) It was
undisputed that the defendant was “mentally disturbed” at
the time of the offense, though the nature and severity of the
disturbance was disputed. (Id. at 1194.) The jury was
instructed with unmodified versions of CALCRIM Nos. 362
and 3428; defense counsel did not object. (McGehee, supra,
at 1203.) On appeal from his conviction, the defendant
contended the court erred, in a manner violating his federal
due process rights, by failing to modify CALCRIM No. 3428
to permit the jury to consider evidence of his mental illness
in deciding whether his false pretrial statements to his sister
were knowingly false. (Id. at 1204.)
48
The Court of Appeal agreed that the unmodified
instruction erroneously deprived the jury of permission to
consider the mental-illness evidence in assessing
consciousness of guilt, reasoning that the evidence could
show the false statements were unknowingly false (and
therefore not probative of consciousness of guilt) because
“mental illness or impairment has obvious relevance to the
question of ability to perceive or recall events.” (McGehee,
supra, 246 Cal.App.4th at 1204-1205.) However, the court
rejected the defendant’s contention that the error violated
his due process rights, reasoning that the permissive
inference of consciousness of guilt was reasonable in light of
appellant’s attempt to keep his sister away from the body; he
would have had no reason to make that attempt had he
believed the truth of his implications that their mother was
alive. (Id. at 1205-1206.) For the same reason, the court
concluded the error did not affect the defendant’s substantial
rights, and that his trial counsel’s failure to object therefore
forfeited his challenge to the error on appeal. (Id. at
1206-1207.)
Here, as in McGehee, defense counsel’s failure to object
forfeited appellant’s contention on appeal. The inference
that appellant’s false story to the detectives reflected
consciousness of guilt was reasonable. The jury heard
evidence that appellant experienced hallucinations of voices
and delusions that other people intended to harm him, but
heard no evidence that appellant’s mental illness caused him
to have false memories of his own conduct. Thus, the jury
49
reasonably could have inferred that appellant’s false claim to
have taken a 45-minute walk around his neighborhood, on a
specified route, reflected consciousness of guilt rather than a
hallucination or delusion. This inference was additionally
supported by appellant’s statements to the detectives that
the reason for Fisher’s fatal strangling “implicate[d]” him
and “ma[de] him guilty of a crime eventually.” The jury
reasonably could have inferred that had appellant actually
believed he had been walking around the neighborhood
when Fisher was killed, he would not have claimed that the
reason for the strangling implicated him. Because the jury
reasonably could infer consciousness of guilt from appellant’s
false statements to the detectives, the asserted instructional
error did not violate his due process or other substantial
rights, and his counsel’s failure to object below forfeited his
contention on appeal. (See McGehee, supra, 246 Cal.App.4th
at 1205-1207.)
Regardless of whether defense counsel’s performance
was deficient for failing to object, it was not prejudicial. (See
In re Crew (2011) 52 Cal.4th 126, 150 [“If a claim of
ineffective assistance of counsel can be determined on the
ground of lack of prejudice, a court need not decide whether
counsel’s performance was deficient”].) As noted, the jury
heard no evidence that appellant’s mental illness caused
symptoms comparable to false memories of taking a
45-minute walk around the neighborhood on a specific route.
Thus, even had the instructions invited the jury to consider
the mental-illness evidence with respect to appellant’s false
50
statements, it is not reasonably probable the jury would
have found he did not know his statements were false.
Moreover, CALCRIM No. 362 merely permitted the jury to
infer consciousness of guilt, without requiring it to do so, and
made clear that the “importance” of any knowingly false
statement was for the jury to decide. Even disregarding the
consciousness-of-guilt evidence, the evidence was more than
sufficient to support the jury’s finding of a premeditated and
deliberate murder. In short, we are confident the jury would
have returned the same verdict even had defense counsel
secured the relevant modification to CALCRIM No. 3428.
(See In re Crew, supra, at 150 [counsel’s deficient
performance is prejudicial if probability of more favorable
result absent counsel’s failings is reasonable, i.e., sufficient
to undermine confidence in the outcome].)
D. Asserted Prosecutorial Misconduct
Appellant contends many of the prosecutors’ remarks
during closing argument constituted misconduct. He
acknowledges that his trial counsel failed to object to any of
the challenged misconduct. He argues that his misconduct
claim was not forfeited because the misconduct affected his
substantial rights, and (in the alternative) that his trial
counsel were ineffective for failing to object.
1. Principles
A prosecutor’s “use of deceptive or reprehensible
methods to persuade the court or jury” violates state law,
51
and further violates the federal constitution if it “‘“so
infect[s] the trial with unfairness as to make the resulting
conviction a denial of due process.”’” (People v. Flores (2020)
9 Cal.5th 371, 403.) “It is prosecutorial misconduct to
misstate the law. [Citation.] It is also misconduct to
misstate the evidence or go beyond the record. [Citation.]
However, the prosecution ‘enjoys wide latitude in
commenting on the evidence, including the reasonable
inferences and deductions that can be drawn therefrom.
[Citations.] ‘A defendant asserting prosecutorial misconduct
must . . . establish a reasonable likelihood the jury construed
the remarks in an objectionable fashion.’ [Citations.]”
(Fayed, supra, 9 Cal.5th at 204.) In assessing such a
likelihood, “[w]e presume not only that jurors follow
instructions in general [citation], but also ‘that jurors treat
the court’s instructions as a statement of the law by a judge,
and the prosecutor’s comments as words spoken by an
advocate in an attempt to persuade’ [citations].” (People v.
Potts (2019) 6 Cal.5th 1012, 1037.)
“To preserve a claim of [prosecutorial] misconduct for
appeal, a defendant must make a timely objection and ask
the court to admonish the jury, unless an objection would
have been futile and a request for admonition ineffective.”
(People v. Flores, supra, 9 Cal.5th at 403.) “When the record
on direct appeal sheds no light on why counsel failed to act
in the manner challenged [on a claim of ineffective
assistance], [the] defendant must show that there was ‘“‘no
conceivable tactical purpose’” for counsel’s act or omission.
52
[Citations.]’” (People v. Centeno (2014) 60 Cal.4th 659, 675.)
“‘[T]he decision facing counsel in the midst of trial over
whether to object to comments made by the prosecutor in
closing argument is a highly tactical one’ [citation], and ‘a
mere failure to object to . . . argument seldom establishes
counsel’s incompetence’ [citation].” (Ibid.)
2. Forfeiture
Defense counsel’s failure to object to any of the
prosecutors’ asserted misconduct forfeited appellant’s
misconduct claim on appeal. (See People v. Flores, supra,
9 Cal.5th at 403.) Appellant expressly disclaims any
argument that objections would have been futile. Though he
argues the claim was nevertheless preserved for appeal
because it affected his substantial rights, he cites only one
case in support of this argument, and that case did not
address prosecutorial misconduct. (People v. Espiritu (2011)
199 Cal.App.4th 718, 724-725 [defendant did not forfeit
objection to trial court’s failure to record jury’s not-true
finding on deadly-weapon allegation].)
We conclude appellant’s misconduct claim was forfeited.
We nevertheless address the merits of the claim to resolve
his alternative contention that his counsel were ineffective
for failing to object.
3. Error
We conclude that many of the prosecutors’ challenged
remarks were permissible. Several fell within a prosecutor’s
53
“wide-ranging right” to urge the jury to draw inferences from
the evidence. (People v. Tully (2012) 54 Cal.4th 952, 1043.)
These include arguments that (1) Fisher fell to the ground by
the end of appellant’s series of blows; (2) appellant used all
his strength and weight to crush Fisher’s neck; and (3)
appellant watched the life drain from Fisher. We find
nothing unreasonable about these inferences on the record
before the jury. In another challenged remark, the
prosecutor urged the jury to infer, from the number of
bruises and abrasions on various parts of Fisher’s body, that
appellant punched Fisher “in the face” 24 times or more.
The record did not reasonably support that specific
inference; the dozens of injuries Fisher suffered covered
more than her face, and it was speculative whether each
injury was inflicted by a separate blow. But “[o]pposing
counsel may not complain on appeal if the reasoning is
faulty or the deductions are illogical because these are
matters for the jury to determine.” (Ibid.) The jury was
equipped to reject the proffered inference, especially given
that defense counsel argued, at some length, that the
inference was not supported by the evidence.12
12 The prosecutors also encouraged the jury to draw (while
deeming immaterial) an inference that appellant made a sexual
advance on Fisher. In doing so, they referenced the evidence of
the Arias incident. Thus, we reject appellant’s contention that
the prosecutors merely asserted their personal beliefs regarding a
sexual advance. In any event, such assertions would have been
(Fn. is continued on the next page.)
54
It was also permissible for the prosecutors to make
their challenged remarks to the effect that the experts were
uncertain whether appellant’s mental illness was
substance-induced. Though Dr. Grand’s stipulated
testimony was somewhat ambiguous, and she was not
present at trial to clarify, she appeared to express certainty
that appellant had a psychotic disorder of some type
(“Unspecified Schizophrenia Spectrum and Other Psychotic
Disorder”), but uncertainty regarding whether his disorder
was “Substance-Induced Psychosis” or another type. Both
prosecutors conceded that appellant had a mental illness,
and permissibly argued that Dr. Grand was uncertain
whether his illness was substance-induced. Similarly, the
prosecution accurately observed that Dr. Rothberg testified
that appellant’s drug use prevented a more certain diagnosis.
Dr. Rothberg identified several diagnoses that were
“potentially” correct, and testified, with reference to
Dr. Knapke’s 2013 report, that a more certain diagnosis was
difficult because “if there is ongoing use of drugs, then you
really don’t know what’s going to be left when the drugs
stop.”
As appellant observes, Dr. Rothberg did not mirror
Dr. Knapke’s language recommending that appellant be
re-evaluated after six months of sobriety. Appellant argues
it was therefore inaccurate and misleading for the prosecutor
harmless for the same reasons we found the admission of the
Arias incident harmless.
55
to argue, “Dr. Rothberg and Dr. Knapke both say . . . that
there are symptoms that correspond both with these
schizo-type disorders as well as drug use. We can’t tell
which one they are or are not. We need him sober for six
months to be able to tell what remains.” But although the
implication that Dr. Rothberg had mirrored Dr. Knapke’s
language was inaccurate, it was not misleading in light of
Dr. Rothberg’s reference to Dr. Knapke’s report in support of
a similar opinion. Relatedly, the prosecutor’s references to
these opinions clarified the prosecutor’s arguments that
Dr. Knapke had testified to the effect that “‘there’s no way
that you can diagnose [appellant] with schizoaffective
disorder because he’s got too much drug abuse in his
history,’” and “‘It seems like mostly a drug problem. It’s not
schizoaffective disorder.’” Dr. Knapke did testify that he had
concluded that appellant was neither psychotic nor
delusional at the time of the 2013 examination, and that
appellant’s “primary” problem seemed to be drug use. The
prosecutor communicated the tentative nature of these
opinions to the jury by referencing Dr. Knapke’s
recommendation for a re-evaluation after six months of
sobriety. Thus, appellant fails to show a reasonable
likelihood that the jury drew, from these challenged remarks,
objectionable conclusions regarding the record.
With respect to other challenged remarks, appellant
fails to show a reasonable likelihood that the jury drew
objectionable conclusions regarding the law. First, we are
confident the jury did not interpret the following remarks as
56
a representation that appellant’s mental illness was
irrelevant: “There can be a temptation in a case like this to
say, ‘Well, he’s crazy.’ Well, of course he’s crazy. Everyone
who murders a stranger is crazy.”13 Almost immediately
after making these remarks, the prosecutor discussed two
ways in which appellant’s mental illness was potentially
relevant. Second, we are confident the jury did not interpret
any of the prosecutors’ remarks as a representation that
premeditation and deliberation may be inferred from the
passage of time alone. The prosecutors’ arguments
emphasized not only the time in which appellant could have
premeditated and deliberated, but also the nature of his
actions throughout that time, viz., battering Fisher to
overcome her resistance and steadily crushing her neck.
Thus, appellant’s reliance on People v. Boatman (2013) 221
Cal.App.4th 1253 is misplaced. There, the defendant’s sole
action directed toward the killing -- a single gunshot to the
face, using a gun taken from the victim just before -- was
nearly instantaneous. (See id. at 1267-1271.)
13 Appellant challenges the prosecutor’s use of the word
“crazy” in reference to people with delusional illnesses, arguing
such use is demeaning and “can only be intended to incite the
stigma often attached to mental illness.” We express no approval
of the prosecutor’s use of this term, but we find it neither
inflammatory nor prejudicial in the context of this case. We
further note that the term’s use does not compel an inference of
nefarious intent. Appellant’s own counsel used the term to refer
to appellant and his conduct.
57
Finally, appellant fails to show a reasonable likelihood
that the jury interpreted any remark as “disparaging
defense counsel by implying [they] had fabricated a delusion
defense.” Appellant points out that the prosecutor remarked,
“We don’t even hear anything about this idea that maybe it
was a delusion until he’s talking to doctors like a year and a
half later. And all of a sudden, he starts coming up with this
-- they have this idea in their head that there’s going to be a
delusion defense.” But the general thrust of the prosecutor’s
argument was that appellant had fabricated claims to the
experts in accord with his asserted history of malingering.
Even assuming defense counsel were included in the
prosecutor’ reference to “they,” the most that could be
inferred was the suggestion that defense counsel had shared
appellant’s idea to rely on his claims of delusion, not that
they had induced or joined in his fabrication of the
underlying claims. (See People v. Young (2005) 34 Cal.4th
1149, 1191-1192 [prosecutor did not imply defense counsel
was responsible for witness’s allegedly false testimony,
where general thrust of prosecutor’s argument was that
physical evidence proved witness was not credible, not that
defense counsel knew witness had lied]; Thomas, supra,
2 Cal.4th at 529-530 & fn. 14 [same, where general thrust of
prosecutor’s argument was that witness’s boyfriend induced
her allegedly false testimony, despite prosecutor’s arguing,
“‘Now, I suppose Mr. Chaffee [defense counsel] would have
you think, just another little mistake. How many mistakes
58
does the defense get to make before you realize perhaps
they’re contriving something?’”].)
The numerous remarks we have already addressed are
only some of the many remarks challenged by appellant. We
need not decide whether the remaining remarks were
misconduct, for as explained below, we find they were not
prejudicial.
4. Prejudice
The prosecutors’ remaining challenged remarks were
not prejudicial. They did not infect the trial with unfairness
in a manner violating due process, and there is no
reasonable probability the jury relied on them, rather than
the ample prosecution evidence, to find that Fisher’s killing
was a premeditated murder.
This is particularly true with respect to the
prosecutors’ challenged remarks related to evidence of
delusions.14 As explained above, appellant’s “delusional
self-defense” claim was both improper at the guilt phase and
14 These were remarks that: (1) appellant’s past delusions, as
evidenced by his father’s testimony, all concerned being watched,
rather than people coming to kill him; (2) Dr. Rothberg’s
examination of appellant in January 2019 was the first time
appellant had reported any delusion or hallucination at the time
of the offense; and (3) appellant’s failure to report any delusion in
his interviews with the detectives was particularly significant
because “all the experts” had indicated that “‘crazy people don’t
know that they are crazy,’” and instead believe their delusions
are real.
59
lacking in evidentiary support, and evidence of a delusional
motive for killing Fisher could support the prosecution case
for premeditation and deliberation. Thus, to the extent the
prosecutor’s challenged remarks might have discredited the
evidence of delusions, they were as likely to help appellant
as to prejudice him.
Any potential prejudice from the remaining challenged
remarks was mitigated by the jury instructions and defense
counsel’s arguments. (See People v. Flores, supra, 9 Cal.5th
371 at 405 [“In light of the court’s cautionary instructions
and defendant’s challenge of the very evidence the
prosecutor misstated, we discern no prejudice or denial of
defendant’s right to a fair trial”].) The jury was instructed
that the attorneys’ arguments were not evidence and should
be disregarded to the extent they were inconsistent with the
jury instructions. Defense counsel reminded the jury that
the prosecutors’ arguments were not evidence, and that no
evidence directly supported the challenged prosecution
argument that the strangling had lasted two minutes (30
seconds beyond the time necessary to render a victim
unconscious and the brain “on its way towards death,”
according to the medical examiner). Further, defense
counsel argued that Dr. Rothberg’s testimony concerning
appellant’s impaired judgment and impulse control weighed
against a finding of premeditation and deliberation,
implicitly contradicting the prosecution’s asserted
implication that delusions were the only symptoms of mental
60
illness relevant to that issue.15 Moreover, defense counsel
reminded the jury of the instruction that it could consider
evidence of voluntary intoxication in deciding whether
appellant acted with premeditation and deliberation,
mitigating any potential prejudice from the prosecution’s
asserted implication that drug-induced symptoms were
irrelevant. Finally, defense counsel reminded the jury that
Dr. Rothberg had never concluded appellant was
malingering, and argued that Dr. Knapke was not credible
because he had not examined appellant since 2013. These
arguments mitigated any potential prejudice from the
prosecutor’s assertion that both Dr. Rothberg (who testified
that appellant’s medical records made “many” references to
concerns of malingering) and Dr. Knapke (who did not
address malingering in his testimony) had testified that all
the mental health records they reviewed reflected concerns
about malingering.
As we have explained above, the jury was not faced
with a close case. For these reasons, we find no prejudice.
Having found many of the challenged remarks permissible,
and the remainder harmless, we conclude defense counsel
15 The prosecution also assertedly implied that evidence of
mental illness was irrelevant to appellant’s imperfect self-defense
claim, which posited that appellant acted without malice and
therefore committed voluntary manslaughter rather than murder.
But the jury was instructed that it could consider mental-illness
evidence in deciding whether appellant acted with the intent or
mental state required for murder.
61
were not ineffective for failing to object. (Thomas, supra,
2 Cal.4th at 531.)
E. Motive for Appellant’s Prior Report of an
Intruder
Appellant does not challenge the admission of evidence
that some weeks prior to Fisher’s killing, he reported that an
intruder ransacked his house after forcing him into a closet
at gunpoint. Appellant does challenge, as speculative, his
father’s testimony that his motive for this prior report of an
intruder was his desire to avoid blame for creating a mess in
his house. He does not dispute that his trial counsel’s failure
to object to this testimony forfeited his evidentiary
contention on appeal. (See People v. Redd (2010) 48 Cal.4th
691, 729 [applying general rule that “‘trial counsel’s failure
to object to claimed evidentiary error on the same ground
asserted on appeal results in a forfeiture of the issue on
appeal’”].) Instead, he contends his trial counsel were
ineffective for failing to object.
We disagree. Regardless of whether defense counsel’s
failure to object constituted deficient performance, it was not
prejudicial. The jury was equipped to understand the
common-sense proposition that appellant’s father could not
read his son’s mind. Further, neither appellant’s prior
report of an intruder, nor his motive for making it, was
material. Even disregarding the prior report, it was
reasonable for the jury to infer that his similar false report
to the detectives reflected consciousness of guilt (as
62
explained above, in our discussion of appellant’s contention
concerning CALCRIM No. 3428). And even the latter false
report was inessential to the prosecution case.16
F. Sanity
In challenging the trial court’s finding that appellant
had been capable of understanding the wrongfulness of
Fisher’s killing at the time he killed her, appellant asserts
that the court erred in various ways in describing and
weighing the evidence. Both parties properly cite People v.
Belcher (1969) 269 Cal.App.2d 215 (Belcher) for the
proposition that we must affirm the sanity verdict if it was
supported by substantial evidence.17 (Id. at 220.) We
therefore construe appellant’s evidentiary arguments as a
contention that no substantial evidence supported the sanity
verdict.
16 Having rejected many of appellant’s contentions of error,
and having found the remaining asserted errors harmless, we
reject appellant’s contention that he was prejudiced by the
cumulative effect of the asserted errors.
17 Elsewhere in his appellate brief, appellant asserts --
without citation to authority -- that the sanity verdict must be
reversed if there is a reasonable probability that the trial court
would have reached a different conclusion absent its asserted
errors in describing and weighing the evidence. This
unsupported assertion is at odds with appellant’s own citation to
Belcher, where the appellate court recognized its obligation to
affirm a trial judge’s sanity verdict unless it found “‘“no
hypothesis whatsoever”’” under which the evidence supported the
verdict. (Belcher, supra, 269 Cal.App.2d at 220.)
63
1. Principles
“‘[I]nsanity is established if the defendant was unable
either to understand the nature and quality of the criminal
act, or to distinguish right from wrong when the act was
committed.’” (People v. Powell (2018) 5 Cal.5th 921, 955
(Powell).) Here, the parties’ dispute concerns only the
second, wrongfulness issue. This issue concerns the
defendant’s understanding of “generally accepted moral
standards” rather than “those standards peculiar to the
accused.” (People v. Coddington (2000) 23 Cal.4th 529, 608,
overruled on another ground by Price v. Superior Court
(2001) 25 Cal.4th 1046; accord, People v. Rittger (1960)
54 Cal.2d 720, 734 [“The fact that a defendant claims and
believes that his acts are justifiable according to his own
distorted standards does not compel a finding of legal
insanity”].) Though the issue concerns the defendant’s
understanding of morality rather than law, the defendant’s
knowledge that his act is illegal “will in most cases permit
the inference of knowledge that, according to the accepted
standards of mankind, it is also condemned as an offense
against good morals.” (People v. Leeds (2015) 240
Cal.App.4th 822, 831 (Leeds).)
“‘If [a] mental illness is manifested in delusions which
render the individual incapable either of knowing the nature
and character of his act, or of understanding that it is wrong,
he [or she] is legally insane . . . .’” (People v. Blakely (2014)
230 Cal.App.4th 771, 780 (Blakely).) Thus, “[a] person
suffering from a delusion that causes him to fear that
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another is attempting to take his life is legally insane if the
facts perceived as the product of his delusion would legally
justify his acting in self defense.” (Leeds, supra, 240
Cal.App.4th at 829.) But if his delusions have no such effect,
the defendant may be sane. (See id. at 833; Blakely, supra,
at 781.)
“In a sanity trial, the burden is on the defendant to
prove insanity by a preponderance of the evidence.” (Powell,
supra, 5 Cal.5th at 955.) We must review the record in the
light most favorable to the sanity verdict and affirm if the
verdict is supported by “evidence that is reasonable, credible,
and of solid value, from which a reasonable trier of fact could
find the defendant sane by a preponderance of the evidence.”
(Id. at 957.) “‘[E]xpert testimony, even if uncontradicted, is
not binding on the trier of fact, and may be rejected . . . .’”
(People v. McCarrick (2016) 6 Cal.App.5th 227, 247
(McCarrick), italics omitted.)
2. Analysis
Substantial evidence supported the trial court’s finding
that appellant had failed to prove, by a preponderance of the
evidence, that he had been incapable of understanding the
wrongfulness of killing Fisher at the time he killed her.
None of the expert evidence suggested that appellant’s
mental illness interfered with his ability to understand that
killing people is typically wrong. Suggesting the opposite, he
reported to Dr. Pitt (the sole expert to opine appellant had
been insane at the time of offense) that he had resisted
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voices telling him to violate his “morals” by killing a Black
person, and Dr. Pitt testified that appellant generally
“understood that to kill someone was wrong . . . .” Appellant
did not testify, and he never expressly claimed in his
psychiatric interviews that he had believed Fisher’s killing
was morally justified. (See Blakely, supra, 230 Cal.App.4th
at 781 [defendant failed to establish insanity, despite his
testimony he acted on delusion victim was a demon, where
he failed to state “he believed it was morally acceptable to
attack [victim] and take his money”].) On the contrary,
when appellant finally discussed the killing with Dr. Pitt,
his statements indicated he had been “conflicted” about
hurting Fisher and “‘felt remorse’” immediately after she
died. These statements supported a reasonable inference of
consciousness of moral guilt, as did the following: (1)
appellant’s false story to the detectives about an intruder; (2)
appellant’s admission to Dr. Rothberg that he had lied to the
detectives to avoid criminal responsibility; (3) appellant’s
dragging Fisher’s body from the kitchen to the garage in an
apparent attempt to hide it; and (4) appellant’s washing
clothing in an apparent attempt to destroy DNA evidence.
(See Leeds, supra, 240 Cal.App.4th at 833 [where defendant
shot victims dead, acting on delusional belief that victims
were conspiring to kill him, defendant’s “discarding his gun
and outer clothing afterwards, and attempting to leave the
crime scene rather than seeking out the police, . . . indicated
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that he knew his actions were wrongful”].)18 The foregoing
was substantial evidence in support of the sanity verdict,
independent of the further support provided by experts other
than Dr. Pitt.19
The implication of appellant’s arguments is that the
court was compelled to accept Dr. Pitt’s opinion that
appellant, acting on a delusion that Fisher would provide
information to men who would eventually kill him and/or his
parents, had believed Fisher’s killing was morally justified.
Not so. First, Dr. Pitt’s opinion was far from conclusive
evidence that appellant had actually experienced the
reported delusion, which he had not reported in his
interviews with the detectives, his interviews with the
experts other than Dr. Pitt, or his first five interviews with
Dr. Pitt. Second, even assuming appellant did experience
the reported delusion, Dr. Pitt failed to persuasively explain
her opinion that the delusion caused appellant to believe
18 Appellant argues this evidence supported a reasonable
inference only of his understanding of the legal wrongfulness of
Fisher’s killing, not his understanding of its moral wrongfulness.
But he acknowledges that the former permits an inference of the
latter in “most” cases. (Leeds, supra, 240 Cal.App.4th at 831.)
He identifies no persuasive reason to deem this homicide case an
exception to the general rule.
19 Dr. Grand opined that the case for insanity was
“extremely” weak, and Dr. Rothberg opined that it was uncertain
whether Fisher’s killing resulted from appellant’s psychotic
disorder rather than from his “very substantial antisocial
personality characteristics.”
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Fisher’s killing was morally justified. As noted, appellant
indicated to Dr. Pitt that he had been “conflicted” about
hurting Fisher and “‘felt remorse’” immediately after she
died. He also told Dr. Pitt that his explanations for the
“horrific” killing were not “excuses.” Moreover, he indicated
to both Dr. Pitt and an investigator that he had killed Fisher
to prevent her from “snitch[ing]” on him in connection with a
theft he had committed. Though he reportedly had believed
Fisher’s snitching might result in other people eventually
killing him and/or his parents, such a belief would not have
morally justified Fisher’s murder under generally accepted
moral standards. (See People v. Rittger, supra, 54 Cal.2d at
734 [expert’s opinion did not undermine sanity finding,
where expert’s opinion was to effect that defendant’s
paranoid delusional thinking led him to believe victim
“might attack him at some future time,” and that defendant
therefore felt justified in killing victim “according to
defendant’s personal, prison-influenced standards”]; Leeds,
supra, 240 Cal.App.4th at 833 [defendant was not prejudiced
at sanity phase, with respect to three of his murder victims,
by instructional error prohibiting jury from evaluating
defendant’s self-defense claim in light of his delusions that
each victim “conspired with the others to kill him,” where
“there was no evidence that he perceived he was in
imminent danger from [those three victims], and
considerable evidence that he knew he was not”].)
In sum, even had Dr. Pitt been the sole source of expert
opinion, the court reasonably could have rejected Dr. Pitt’s
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opinion and found that appellant had been capable of
understanding it was morally wrong to kill Fisher at the
time he killed her. (See McCarrick, supra, 6 Cal.App.5th at
235, 246-248 [jury reasonably could have found defendant
understood moral wrongfulness of murders at time of
offenses, despite unanimous contrary opinions of three
experts].) We conclude the sanity verdict was supported by
substantial evidence.20
G. Serious-Felony Enhancement
Appellant contends his trial counsel were ineffective
for failing to ask the trial court to strike his five-year
enhancement for a prior serious felony, viz., his 2013
conviction for criminal threats. The People do not argue
there was a conceivable tactical purpose for defense counsel’s
failure to make the request. (See People v. Centeno, supra,
20 Appellant also contends the trial court misapplied the law
at the sanity phase by relying on its personal belief that finding
appellant sane was necessary to deliver justice to Fisher’s family.
The record does not support this contention. The court made only
a single stray remark concerning justice for Fisher’s family, after
a lengthy discussion of the evidence within the governing legal
framework. Moreover, this remark followed its comments that it
wished it could reach a different result in light of the
consequences of the verdict, the court’s familial relationships
with mentally ill individuals, and its resulting empathy with
appellant’s family. In that context, the court’s remark that its
decision was driven by justice for Fisher’s family “and just the
right result” appeared to mean that the court had resisted
potential bias in appellant’s favor.
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60 Cal.4th at 675.) Instead, they argue there is no
reasonable probability the court would have granted the
request, relying solely on the court’s denial of defense
counsel’s oral Romero motion.
We disagree with the People. The court’s denial of the
Romero motion reflected only a finding that no extraordinary
circumstances warranted departure from the three strikes
law. (See People v. Carmony (2004) 33 Cal.4th 367, 378;
People v. Johnson (2019) 32 Cal.App.5th 26, 69 [rejecting
argument that trial court’s denial of Romero motion showed
it would not have stricken serious-felony enhancement].) In
denying the Romero motion and sentencing appellant, the
court made no comments indicating it approved of the
55-year determinate term of appellant’s sentence. Further,
in finding appellant sane, the court indicated the
consequences of its decision had weighed heavily on it, and
expressed a wish that a different result were possible. We
cannot say there is no reasonable probability that had
defense counsel asked the court to strike the enhancement,
the court would have exercised its discretion to reduce the
determinate term of appellant’s sentence from 55 to 50 years.
We therefore remand for a hearing at which the court will
decide whether to exercise that discretion.
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DISPOSITION
The judgment is affirmed. The matter is remanded
with directions to the trial court to decide, at a hearing at
which appellant has the right to be present with counsel,
whether it will exercise its discretion to strike the
enhancement imposed under Penal Code section 667,
subdivision (a). (See People v. Rocha (2019) 32 Cal.App.5th
352, 359-360.) If the court elects to strike the enhancement,
it shall resentence appellant, issue a new abstract of
judgment, and forward the new abstract of judgment to the
California Department of Corrections and Rehabilitation. If
the court elects not to strike the enhancement, appellant’s
original sentence shall remain in effect. (See id. at 361;
People v. Buckhalter (2001) 26 Cal.4th 20, 35.)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, P. J.
We concur:
WILLHITE, J.
CURREY, J.
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