P. v. Moncada

Filed 6/18/08 P. v. Moncada CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, Carol C. Koppel, Judge. Affirmed.

Marcia C. Levine, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.

___________________________________

Defendant Leonel Moncada was convicted of the first degree murder of his grandmother, Elvira Diaz, in violation of Penal Code section 187, subdivision (a).^[1] In a separate proceeding, the jury found defendant was sane^[2]at the time he committed the murder.

Defendant received a sentence of 25 years to life. A court security fee was imposed, along with a restitution fine under section 1202.4, subdivision (b), and a parole revocation restitution fine under section 1202.45, which was stayed. Defendant was ordered to make direct restitution in the amount of $5,000, under section 1202.4, subdivision (f).

Defendants primary appellate contentions concern his sanity trial. He argues he was prejudiced because the trial court erroneously and prejudicially permitted the prosecutions mental health expert to opine on the ultimate issue of defendants sanity at the time of the murder. He also argues Judicial Council of California Criminal Jury Instructions (2007-2008), CALCRIM No. 3450, the pattern instruction defining the burden of proof and the legal standards for assessing sanity pursuant to sections 25 and 25.5, improperly imposed a mandatory presumption of sanity if the jury found at times defendant was legally sane. We reject both claims and affirm. The trial court did not abuse its discretion in admitting the expert testimony, nor was there a reasonable possibility that defendant was prejudiced by the opinion. Although the challenged aspect of CALCRIM No. 3450 is potentially misleading in the abstract, we hold that a reasonable juror would not be misled based on the instruction as a whole and there is nothing in the record to suggest the challenged aspect of the instruction improperly affected the jurys verdict in this case. As we reject both claims arising out of the sanity trial, defendants cumulative error claim must fail. In the final section of this opinion, we agree with the parties that the trial court was not required to impose court construction fees at sentencing.

STATEMENT OF FACTS

The Murder Trial

Prosecution

Defendant had been arrested on February 15, 2004, and served 38 days in county jail. His personality changed when he returned home. He was afraid people were out to kill him, and he did not like to leave the house. Defendants mother, Martha Gonzalez, testified her son was 25 years old on the date of the murder, May 29, 2004. Defendant lived in the home of his uncle Aubrey Tex Holly, along with his aunt, Gonzalez, and her motherthe victim, Elvira Mercedez Diaz.

Gonzalez left the house at approximately 8:00 a.m. on the day of the murder. Defendant was in his bedroom; Diaz was sleeping. Defendants car was parked outside the house in its usual place. Aurora Duran, who did yard work for Diaz, arrived at the house at approximately 1:00 p.m. Defendants car was parked in the same place. As was her custom, Duran tried to enter the house through the garage door which was usually left unlocked. The garage door was locked from the inside, so she tried the sliding glass door, but it too was uncharacteristically locked. Duran looked through the glass door and knocked. She saw defendant in the hallway. He was not wearing a shirt. Defendant motioned her away toward the front door. Duran went to the front door, but found it locked. When she knocked, she heard Diaz tell her to leave. Her voice sounded different. Duran left and later tried telephoning Diaz, but no one answered.

A neighbor, Dennis Maxfield, saw defendants car parked outside the house from approximately 2:00 to 3:30 p.m. No one entered or left defendants house during that time.

At 5:01 p.m., defendant called the 9-1-1 operator and reported that [s]omebody just murdered my grandma. Sheriffs Deputy Stephen ONeal and his partner Deputy Rubio responded to the murder scene. Defendant was waiting for them on the front porch. He did not appear upset. It looked like he had just showered. Defendant told them, My grandmothers been murdered. Her throat was slashed. Defendant became uneasy when the deputies accompanied him inside the house. Defendant told them drug dealers were responsible. When asked why he thought so, defendant said, Because I do drugs. Defendant, however, did not know the identity of the drug dealers. Defendant also told the deputies that Duran had come by the house at 1:30, but he did not open the door for her. He left the house sometime between 1:00 and 3:00 p.m., and returned at 5:00 p.m. to find Diaz murdered. However, there were no tracks from the dirt area where defendants car was parked. Defendant initially said that he had showered earlier that morning, but later denied it.

The victim was in the kitchen. She died before the deputies arrived, as the blood had begun to congeal into different colors. Defendant was not arrested, but placed in a patrol car for his safety and to preserve the crime scene. He was not handcuffed. Detective Sandra Nava identified herself and asked for consent to enter the house to investigate. Defendant responded, I murdered my grandma. A search of defendants car uncovered defendants green back pack, containing his wallet, clothing, and a towel. The clothes and towel were damp and appeared to be blood-stained.

There were blood stains in the hallway and bathroom, including on the floor, the tub area, and the bath drain. The sweatpants and towel from defendants backpack in his car tested positive for blood, as did defendants underwear and socks. DNA analysis of the sweatpants, underwear, a sock, as well as blood from the hallway floor and bathroom sink and floor, revealed the blood matched defendant and the victim.

Diaz had been killed by multiple slash wounds and blunt force injuries. There were approximately 14 incised wounds to her neck, one being eight inches long and three inches deep, severing her carotid artery. She also suffered multiple incised wounding to her head and defensive lacerations to her hand.

Defense

Defendant testified on his own behalf. At the time of Diazs death, defendant was neither working nor attending school. He had recently been released from jail. He had been using methamphetamine intermittently since 1998. On the day of the killing, he awoke at approximately 10:00 a.m. His mother had left the house. Only Diaz was at home with him. Duran came by the house at some point in the early afternoon, asking to come in. He told her to go around, or made a gesture to that effect, but she never entered the house. Defendant left the house at approximately 4:00 p.m. He drove his car and went somewhere in the neighborhood to go see somebody. He was looking to obtain a firearm and some dope too. He could not remember the names of the persons he went to see, but they were not home. When he returned, he found his grandmother dead, and he made the 9-1-1 call. Defendant remembered speaking to Detective Nava about the crime, but did not recall what he said to her. He did not recall putting a towel in his car. Defendant admitted entering a guilty plea to felony battery causing serious bodily injury on May 25, 2004.

Sanity Trial

Defense Case

Aubrey Holly, defendants uncle, considered defendant like a son. Defendant loved his grandmother very much. Holly owned the home where the murder took place. He also owned the Lancaster restaurant where defendant worked on weekends. Defendant was a very good student through high school. Defendant stopped working at the restaurant two or three months before the murder incident. Holly had to fire him because defendants behavior gradually deteriorated. Defendant became short tempered with Holly, other employees, and customers. Defendant also began to voice paranoid concerns and believed there were listening devices and hidden cameras at the restaurant. Defendant took his car to the airport to have it inspected for listening devices he believed had been secreted inside by the Federal Bureau of Investigation. At home, he would sleep on the floor instead of his bed. Defendant admitted to experimenting with meth.

Paula Toner worked at Hollys restaurant with defendant; they got along well. Defendant was a good worker, but his behavior changed. He stopped being friendly to customers. He constantly complained of being frightened. He thought he was being followed and that somebody would hurt his family.

Forensic psychiatrist Kory Knapke examined defendant on June 6, 2005. He opined that defendant suffered from paranoid delusions at the time of the crime. The expert found no rational motive for the murder. Although he was unable to diagnose defendant with paranoid schizophrenia with absolute medical certainty, Dr. Knapke opined that defendant had characteristics that are very similar to an individual who is experiencing schizophrenia. Dr. Knapke did not believe defendant was malingering. Defendants drug abuse could have been responsible for his psychotic symptoms, but there was no evidence defendant was voluntarily intoxicated at the time of the murder.

Dr. Knapke believed defendant was experiencing paranoid delusions in the time leading up to the commission of the crime, but he could not give an opinion about the two prongs of the insanity standard because, when interviewed, defendant denied killing Diaz, which prevented Dr. Knapke from inquiring into defendants thoughts during the crime. For these reasons, the expert could not explore whether defendant thought his act was right or wrong. Nevertheless, Dr. Knapke concluded that defendant was psychotic at the time of the crime and was not operating in realitybut he could not be sure whether [defendants] psychosis was a direct result of his methamphetamine abuse or whether he was indeed experiencing psychotic symptoms as both a result of his drug abuse and/or his underlying schizophrenia.

Forensic psychologist Ronald Fairbanks examined defendant on five occasions for a total 10 to 15 hours. Defendant told the psychologist that two persons had repeatedly hypnotized him to get him to do things that he wouldnt normally do. Defendant also gave the psychologist a paranoid description of a weird outer space thing near the airport. Dr. Fairbanks administered a variety of psychological tests. Defendant tested less than average for aggression and near the average range for hostility. His scores were high for anxiety, depression, impulse control, fear, paranoia, and psychotic symptoms. His scores indicated that defendant was a paranoid schizophrenic.

From his interview with defendant, Dr. Fairbanks believed that in killing Diaz, defendant had a disassociative experience. . . . [Defendant] saw it happening, [but] he couldnt control it. According to the expert, defendant could not understand why he would do such a thing to someone he loved. With regard to defendants mental state at the time of the murder, Dr. Fairbanks was confident that defendant suffered from paranoid schizophrenia with disassociative components.

Prosecution Case

Carolina Sonner, a cousin of defendant, was a methamphetamine user in 1997 and 1998, but she stopped in early 1999. She used the drug with defendant in 1998. Defendant used it four to five times a week. She often observed defendants methamphetamine use and his behavior in the hours after such usage. Defendants voice on the 9-1-1 recording sounded similar to the way it did when defendant had used methamphetamine four to six hours before. From defendants voice during his interview with the detectives the next day, it sounded like defendant was no longer under the drugs influence.

Deputy ONeal testified that nothing in defendants demeanor or his responses at the crime scene was indicative of delusional thinking or paranoia. Deputy Richard Lopez testified that during an interview, defendant appeared to understand the questions and responded appropriately, if evasively.

Defendants uncle Jorge Gonzalez testified as to the incident in which defendant attacked him, which resulted in defendants prior conviction and jail term. The evidence was admitted only for its bearing on the issue of defendants sanity. On February 15, 2004, Gonzalez drove to the Holly residence to pick up his daughter. When he arrived, defendant was in front of the house. He approached Gonzalez, who was in the driver seat, and punched him in the side of his face, through the car window. Gonzalez passed out, but when he regained consciousness, defendant continued to punch him. Gonzalez, who was bleeding, ran into the house with defendant in pursuit. Defendants attack broke Gonzalezs nose and destroyed his eardrums. Gonzalez, as a recovering alcoholic, recognized that defendant had been using drugs for a long time.

Psychiatrist Gregory Cohen interviewed defendant twice and reviewed the police report and related documents concerning the murder. When asked for his opinion as to defendants sanity at the time of murder, the expert opined that defendant did not meet the criteria for insanity thatanother way of putting that is that he was legally sane at the time of the offense. The defense objected that his answer was improper as an opinion on the ultimate issue. The trial court did not sustain the objection but stated, the jury will make its own finding . . . based on the evidence and the law.

Dr. Cohen explained further that defendant was suffering from a major mental disorder at the time of the offensea psychosis whereby defendant experienced a break from reality. He was also expressing paranoid fears, was depressed and withdrawn, and had lost a lot of weight, consistent with clinical depression. Nevertheless, to be legally insane at the time of the offense, it was not enough to have a major mental disorder, like defendants depressive and psychotic disorders. Legal insanity also required that defendants mental illness rendered him unable to understand what he was doing at the time of the crime and unable to understand the wrongfulness of that behavior. The expert believed the available data did not demonstrate defendants inability to understand the nature or wrongfulness of his actions. Another way of putting it is despite his mental illness, he understood the nature and quality of his action. The defense again objected to the statement as an improper conclusion, but the trial court disagreed. The expert testified that despite defendants mental illness, he understood both the nature and quality of his action and its wrongfulness. Again, the defense objected on the ground that the statement was conclusory and improperly invaded the jurys province as to deciding that issue. The trial court overruled the objection, but instructed the jury to make up its own mind as to that issue.

DISCUSSION

Expert Opinion

Defendant contends the trial court abused its discretion in admitting improper expert testimony as to the ultimate jury question of defendants sanity. He also asserts the admission of that evidence was so prejudicial as to violate his right to due process under the federal Constitution. We will assess whether the admitted evidence should have been excluded on the ground stated and that the error . . . complained of resulted in a miscarriage of justice. (Evid. Code, 353, subd. (b).) However, defendant forfeited any due process claim by failing to raise it below. Defendant objected solely on the ground that the challenged testimony amounted to an improper expert opinion. As such, the limited exception to the contemporaneous objection rule under People v. Partida (2005) 37 Cal.4th 428 does not apply. (See id. at p. 435 [defendant may make a very narrow due process argument on appeal notwithstanding failure to object on that ground when the appellate argument is that the asserted error in admitting the evidence over [the defendants] Evidence Code section 352 objection had the additional legal consequence of violating due process].)

A trial court has discretion concerning the admission of evidence, including expert testimony. (See, e.g., People v. Carter (2003) 30 Cal.4th 1166, 1194 (Carter).) An expert may offer opinion testimony if the subject is sufficiently beyond common experience so that it would assist the trier of fact. (Evid. Code, 801, subd. (a); People v. Ochoa (2001) 26 Cal.4th 398, 438; People v. Gardeley (1996) 14 Cal.4th 605, 617 (Gardeley); People v. Killebrew (2002) 103 Cal.App.4th 644, 651 (Killebrew).) Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact. (Evid. Code,  805; People v. Olguin (1994) 31 Cal.App.4th 1355, 1371.) For instance, in People v. Doss (1992) 4 Cal.App.4th 1585, 1596, it was proper to permit an expert in the illegal distribution of pharmaceutical drugs to opine that, under the facts of the hypothetical question posed to him, drugs were possessed for the purpose of illegal street sales.

As our Supreme Court has explained, trial courts retain discretion to admit evidence that coincides with the ultimate issue in the case. (People v. Wilson (1944) 25 Cal.2d 341, 349.) [T]he true rule is that admissibility depends on the nature of the issue and the circumstances of the case, there being a large element of judicial discretion involved. . . . Oftentimes an opinion may be received on a simple ultimate issue, even when it is the sole one, as for example where the issue is the value of an article, or the sanity of a person; because it cannot be further simplified and cannot be fully tried without hearing opinions from those in better position to form them than the jury can be placed in. [Citations.] (Ibid., emphasis added; People v. Valdez (1997) 58 Cal.App.4th 494, 507.) Nevertheless, [t]here are limits to expert testimony, not the least of which is the prohibition against admission of an experts opinion on a question of law (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1178), and [t]he manner in which the law should apply to particular facts is a legal question and is not subject to expert opinion (Ferreira v. Workmens Comp. Appeals Bd. (1974) 38 Cal.App.3d 120, 126).

We hold that the trial courts determination was within its proper bounds of its discretion. The trial court instructed the jury during Dr. Cohens examination that despite the experts testimony as to defendants sanity at the relevant time, it was the jurys responsibility to make that ultimate decision. Moreover, contrary to defendants assertion that Dr. Cohen usurped the jurys role in deciding whether defendant was sane, the jury was instructed pursuant to CALJIC No. 2.80 that the jurors were required to assess the expert witnesses credibility based on the strength and weaknesses of their supporting reasonsand the jurors were not bound by any expert opinion, but were free to disregard any opinion found unreasonable. [It is] the almost invariable assumption of the law that jurors follow their instructions. [Citation.] [We] presume that jurors, conscious of the gravity of their task, attend closely [to] the particular language of the trial courts instructions in a criminal case and strive to understand, make sense of, and follow the instructions given them. [Citations.] (United States v. Olano (1993) 507 U.S. 725, 740.)

Defendant adduces no authority for his assertion that a mental health experts sanity opinion is tantamount to an opinion on the ultimate issue of a defendants guilt or innocence. Indeed, as the Attorney General points out, our Supreme Court has implicitly recognized the legitimacy of such testimony in a sanity trial. (See People v. Kelly (1992) 1 Cal.4th 495, 539, fn. 10 [When the prosecution asked ultimate questions under the MNaghten test, the court properly allowed them over defense objection.]; see also People v. Skinner (1986) 185 Cal.App.3d 1050, 1063 [defendant found sane at time of homicide, despite unanimous psychiatric testimony to the contrary].)

Defendant contends Dr. Cohens testimony was prejudicial because of the danger the jurors would accord undue weight to his expert opinion in light of the prosecutors argument that neither defense expert could offer an opinion as to defendants legal sanity at the time of the crime. There was nothing inaccurate or misleading, however, in that argument. Drs. Knapke and Fairbanks both opined that defendant was psychotic at the time of the murder, but remained ambivalent as to whether defendants psychotic episode prevented him from fulfilling the requirements for legal sanity.

The fact remains that despite the prosecution and defense experts agreement that defendant was psychotic, there was no strong evidence to suggest he was incapable of knowing or understanding the nature and quality of his . . . act and of distinguishing right from wrong at the time of the commission of the offense. ( 25, subd. (b).) For one thing, the experts could not rule out the likelihood that it was defendants voluntary drug use, rather than a mental disease or defect, that triggered whatever psychotic state defendant might have been suffering at the time. For another, the manner in which the murder was committed showed planning, deliberation, and specific intent to kill. Further, defendants actions after the crime in attempting to destroy the physical evidence and in fashioning a false alibi are plainly inconsistent with any supposed ignorance of the nature and wrongfulness of his action. In light of the trial courts instructions and the overwhelming evidence of sanity, any error in admitting Dr. Cohens challenged testimony would have been harmless whether assessed under the federal or state Constitutions. (Cal. Const., art. VI, 13; Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.)

Jury Instruction

Defendant contends CALCRIM No. 3450 improperly imposed a mandatory presumption of sanity whenever a jury found at times defendant was legally sane. Since there was evidence as to defendants sanity prior to the murder, as well as evidence supporting a finding of legal insanity at the relevant time, defendant argues the instruction effectively directed a verdict of sanity. We reject this argument based on the rationale offered in the Third Districts decision in People v. Thomas (2007) 156 Cal.App.4th 304 (Thomas).

Without objection,^[3]the trial court instructed the jury pursuant to CALCRIM No. 3450, as to the jurors obligation to decide whether [defendant] was legally insane when he committed the crime. The multi-paragraph instruction recited the more likely than not burden of proof and explained that defendant bore that burden. It defined the legal standard for assessing sanity pursuant to section 25, subdivision (b), as well as the exclusions for personality/adjustment disorders and substance abuse pursuant to section 25.5. The instruction also explained the consequences of an insanity verdictgenerally, custody in a mental hospital. More pertinent to this appeal, the jury was instructed: You may consider any evidence that the defendant had a mental disease or defect before the commission of the crime. If you are satisfied that he had a mental disease or defect before he committed the crime, you may conclude that he suffered from that same condition when he committed the crime. You must still decide whether that mental disease or defect constitutes legal insanity. That was followed by another paragraph cautioning the jury that its sole responsibility was to decide whether the defendant was legally sane or insane at the time of the crime, and that it was not to let any consideration about where the defendant may be confined, or for how long, affect [its] decision in any way.

Next, came the paragraph on which defendant bases his appellate claim: If you conclude that at times the defendant was legally sane and at other times the defendant was legally insane, you must assume that he was legally sane when he committed the crime. (Emphasis added.) The final two paragraphs advised that commission of the crime as a result of an uncontrollable or irresistible impulse would not be a defense in the face of a jury determination of defendants legal sanity, and that [i]f, after considering all the evidence, all twelve of you conclude the defendant has proved that it is more likely than not that he was legally insane when he committed the crime, you must return a verdict of not guilty by reason of insanity.

The Thomas court set forth the standard of appellate review: It is well established in California that the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction. (People v. Burgener (1986) 41 Cal.3d 505, 538-539; see People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) In evaluating a claim that the jury could have misconstrued an instruction, the test on review is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution. (People v. Raley (1992) 2 Cal.4th 870, 901, quoting Estelle v. McGuire (1991) 502 U.S. 62, 72.) (Thomas, supra, 156 Cal.App.4th at p. 310.)

As our colleagues in the Third District explain, [w]hen viewed in isolation, the challenged paragraph of the pattern instruction is potentially misleading. When read in context, it does no more than emphasize the fact that it remains defendants burden to prove legal insanity at the time of the offense, even if evidence has been presented that that the defendant was sane or insane at different times, including the time of the offenses. (Thomas, supra, 156 Cal.App.4th at p. 310.) However, this re-emphasis of the defendants burden is unnecessary and poses the danger that the jury might understand it to mean the assumption [of legal sanity] is irrebuttable. (Ibid.)

Nevertheless, when read as a whole, the instruction makes it clear that even if the jury was directed to assume the defendant was sane, this assumption is subject to defendant presenting evidence to prove otherwise. (Thomas, supra, 156 Cal.App.4th at pp. 310-311.) Indeed, to read the challenged paragraph as imposing an irrebuttable presumption of sanity would make the instruction self-contradictory and unreasonable, for it would impose on defendant the burden of proving that he was not only insane at the time of the crime, but that he had always been so. An understanding that mere proof of a defendants mental lucidity at any timeeven if interspersed with periods of insanitywould require a finding of sanity cannot be logically squared with other aspects of the instruction which, repeatedly emphasized the jurys obligation to determine whether the evidence showed defendant was sane or insane at the time of the crime. Certainly in this case none of the experts opined that episodes of sanity precluded a finding of insanity at the relevant time, and neither party argued or intimated that proof of defendants sanity at any one time precluded a finding of insanity as a matter of law. We agree with the Thomas court that when the instruction is viewed as a whole, we do not find a reasonable juror would have been mislead. (Id. at p. 310.)

Cumulative Error

Defendant argues the cumulative effect of the errors. We have found no errors that can be deemed cumulatively prejudicial. (People v. Box (2000) 23 Cal.4th 1153, 1219.)

Construction Fines

This court directed the parties to address in their briefs the effect of this courts decision in People v. Chavez (Apr. 19, 2007, B190270), review granted August 15, 2007 (S153920), review dismissed and remanded October 24, 2007, in light of the Legislatures amendment of Government Code section 70372 (Stats. 2007, ch. 302,  2)that is, whether the state court construction surcharge under Government Code section 70372, subdivision (a) applied to any fines imposed in this case. The parties addressed this issue in their briefing.

At sentencing, the trial court imposed a court security fee and restitution finesbut no construction fines. Consistent with our opinion in People v. McCoy (2007) 156 Cal.App.4th 1246, 1251-1254, we find the state court construction surcharge applies to neither the restitution fines nor the security assessment. Under the Legislatures amendment to Government Code section 70372, the construction penalty does not apply to [a]ny restitution fine or the state surcharge authorized by Section 1465.7 of the Penal Code. (Gov. Code, 70372, subd. (a)(3).) Defendant is entitled to the benefit of these amendments. (People v. McCoy, supra, 156 Cal.App.4th at p. 1257; see People v. Vieira (2005) 35 Cal.4th 264, 305 [a defendant generally is entitled to benefit from amendments that become effective while his case is on appeal].) Accordingly, the trial court was correct in not imposing the construction penalties.

DISPOSITION

The judgment is affirmed.

KRIEGLER, J.

We concur:

TURNER, P. J.

ARMSTRONG, J.

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^[1] All further statutory references are to the Penal Code, unless stated otherwise.

^[2] Pursuant to defense counsels request prior to trial, a doubt as to defendants mental competency was declared, criminal proceedings were suspended, and two psychiatrists were appointed to conduct evaluations. Having considered the doctors reports, the court found defendant mentally competent to stand trial.

^[3] As defendant requests, we find no forfeiture as to this instructional claim because we review defendants challenge under section 1259 as to whether the alleged instructional error affected his substantial rights.