Filed 5/4/17 P. v. Cary CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
JONATHAN CARY,
Defendant and Appellant.
B271286
(Los Angeles County
Super. Ct. No. SA087131)
APPEAL from a judgment of the Superior Court of
Los Angeles County, Mark T. Zuckman, Judge. Affirmed.
_______________
Christian C. Buckley, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant Attorney
General, Scott A. Taryle and Timothy L. O’Hair, Deputy Attorneys
General for Plaintiff and Respondent.
________________________________
2
Appellant Jonathan Cary appeals from his convictions
and challenges his sentences for attempted murder, assault
with a deadly weapon and residential burglary. He contends
that the prosecutor’s remarks during closing argument concerning
appellant’s sanity, defense counsel, appellant’s expert witness,
and his temporary pro. per. status amounted to misconduct that
undermined his defense and denied him due process and a fair trial.
Appellant further complains that the court abused its discretion in
sentencing when it considered improper aggravating factors and
ignored mitigating evidence. We disagree and therefore affirm.
FACTUAL AND PROCEDURAL SUMMARY
David Ditlow, the victim in this case, is appellant’s father.
Appellant, who is almost 40 years old, lived with his mother until
he was a pre-teen, and then lived with Ditlow for several years.
Appellant has suffered from psychological and mental health issues
throughout his life; appellant reported hearing voices and had
delusions. In 2014, Ditlow and appellant shared an apartment.
In April, 2014 according to Ditlow, appellant had been breaking
the house rules, coming home drunk, and becoming belligerent.
At Ditlow’s request, appellant moved out of the apartment.
On the afternoon of April 17, 2014, Ditlow sent a text
message to appellant indicating that appellant’s Social Security
card had arrived in the mail. They also spoke by telephone, and
because Ditlow believed appellant was intoxicated, he instructed
appellant to come to the apartment the next day when he was
“straight.” Several hours later, however, when Ditlow was taking
a nap1 in his bedroom, he was awakened by the sound of breaking
glass. Ditlow got up, walked into the living room, and saw that
appellant had smashed a chair through the sliding glass door and

1 During this time, Ditlow was not working and suffered from
chronic back pain and took medication for the pain every day.
3
was entering the apartment. Appellant immediately walked to the
kitchen and grabbed a 10- to 11-inch kitchen knife and “started
coming” at Ditlow. As he approached, appellant said “This is it.
This time, it’s all over for you now,” and he began stabbing Ditlow
in the head and chest. Although Ditlow attempted to defend
himself and plead for help, appellant continued to attack him.
Although appellant had stabbed his father in the head and the
chest about 10 times, Ditlow survived.
An information charged appellant with attempted murder
(Penal Code,2 §§ 664, 187, subd. (a) (count 1)),3 assault with a
deadly weapon (§ 245, subd. (a)(1) (count 2)), and first degree
residential burglary (§ 459 (count 3)). As to all counts, the
information alleged that appellant inflicted great bodily injury on
the victim (§§ 1203.075, subd. (a), 12022.7), and as to counts 1
and 3, that appellant used a deadly weapon (§ 12022, subd. (b)(1)).
During the trial, appellant presented the testimony
of Dr. Rose Pitt, a forensic psychiatrist, who interviewed
appellant and reviewed his mental health and medical records.
Dr. Pitt opined that appellant had schizoaffective disorder. She
described the symptoms and characteristics of the disorder, testified
regarding the treatment, the impact of a patient failing to take
medication and the effects of alcohol on a person suffering from the
disorder. Based on a hypothetical question similar to the facts of
this case, Dr. Pitt opined that appellant’s behavior was consistent
with someone experiencing symptoms of schizoaffective disorder.

2 Unless otherwise specified, subsequent statutory references
are to the Penal Code.
3 Shortly before trial the prosecution attempted to amend
count 1 to alleged premeditated, willful and deliberate attempted
murder, but the court denied the motion.
4
A jury found appellant guilty of all counts and found the
special allegations true. The court sentenced appellant to a term of
13 years—the nine-year high term for count 1, plus four years on
the enhancements. Pursuant to section 654, the court stayed the
sentences on counts 2 and 3.
Appellant timely filed a notice of appeal.
DISCUSSION
Appellant asserts that he is entitled to a reversal because
the prosecutor committed prejudicial misconduct during closing
argument and the court erred in the sentence it imposed. We
disagree.
I. Prosecutorial Misconduct Claims
Appellant contends that the prosecutor made four sets of
improper comments: (1) remarks about appellant’s sanity;
(2) a critique of appellant’s expert, Dr. Pitt; (3) a reference to
appellant representing himself for a short period before trial; and
(4) a comment about defense counsel’s knowledge of appellant’s
sanity.
A. Background.
In 2015, the court postponed the trial while appellant’s
counsel pursued a defense of “not guilty by insanity” (NGI) defense.
In November 2015, appellant decided that he wanted to act as
his own counsel and after a psychiatric report revealed that he
was competent to do so, the court granted appellant’s request to
appear pro. per. Several weeks later, however, appellant asked
for reappointment of counsel because he was having difficulty
preparing for trial. The case proceeded to trial in late February
2016. Ultimately, the matter did not proceed to trial as an NGI
5
case. Instead at trial, appellant asserted “mental impairment” as a
defense to specific intent.4
During the closing argument, the prosecutor told the jury
“[y]ou may be familiar with the phrase ‘not guilty by reason of
insanity.’ This is not a trial about insanity or temporary insanity.
If this were a trial about insanity or temporary insanity, the
witnesses would be doctors on both sides. There would have been
testing done.” She noted that, had the trial been about insanity,
the prosecution would have presented its own doctor, would have
had the opportunity to examine the defendant and the trial would
have involved “a lot” of experts “trying to decide whether or not
the defendant was sane or not.” In the prosecutor’s opinion, “this
[was] a regular guilt trial about a very serious crime that was
almost a first-degree murder.” The prosecutor also told the jury
that defense counsel was going to argue that because appellant
“may . . . have a mental illness . . . that means you [the jury] can’t
hold [appellant] responsible for what he did that day. But that’s not
true. And that’s up for you to decide, what any mental condition he
has, if any, had to do with his intent that day.”
In closing, defense counsel argued that appellant did not
harbor the requisite specific intent for attempted murder because of

4 The jury was instructed with CALCRIM No. 3428 “Mental
Impairment” as a defense to specific intent under section 28: “You
have heard evidence that the defendant may have suffered from a
mental disease, defect or disorder. You may consider this evidence
only for the limited purpose of deciding whether, at the time of the
charged crime, the defendant acted with the intent or mental state
required for that crime. [¶] The People have the burden of proving
beyond a reasonable doubt that the defendant acted with the
required intent or mental state, specifically: An intent to kill in
Count 1 and either an intent to kill or commit an assault with a
deadly weapon in Count 3. If the People have not met this burden,
you must find the defendant not guilty of those offenses.”
6
his mental illness; she repeatedly told the jury that “[m]ental illness
negates specific intent.”
On rebuttal, the prosecutor stated that defense counsel
was trying to distract the jury with the “mental illness issue”
and reminded the jury that there were no jury instructions
that indicated that mental illness negated specific intent. The
prosecutor argued, “[t]his shouldn’t be a trial about mental illness,
but the defense wants it to be, because it’s their only hope.”
The prosecutor later acknowledged, however, that when it was
considering whether appellant had the specific intent to commit
the crimes it could consider the fact that appellant had a mental
illness. Near the end of her argument, the prosecutor also said,
“[appellant] probably has some sort of mental illness. A lot of
people have a mental illness. But that doesn’t mean he’s crazy.
[Defense counsel] wants you to think that he’s crazy and that he
can’t control himself.” The prosecutor implored the jury not to “be
distracted by [the mental illness evidence].”
The prosecutor also observed that appellant was a pro. per.
for a time in this case and explained, “[t]hey do not let people
represent themselves for a day, a week, or a month, if they are
not competent to represent themselves. And not just competent
because they know what’s going on, but competent, understanding
the legal process.” Defense counsel objected to the reference to
appellant’s pro. per. status, and the court sustained the objection
and admonished the jury that it must “disregard the prosecutor’s
former statement about a judge allowing a defendant to represent
himself. That’s not part of your consideration. That’s not evidence
before you and you are to draw no conclusions as to whether or not
the defendant is or was competent, which is a totally different issue
than the issues before you.”
The prosecutor also argued that Dr. Pitt was not a credible
witness because she never treated appellant, did not consult his
7
treating physicians or people familiar with him in forming her
opinion, and did not conduct testing. The prosecutor criticized
the manner in which Dr. Pitt recorded her interview notes and
prepared her report.
Later in her rebuttal, the prosecutor remarked that “[defense
counsel] knows that [appellant] is not insane.” Appellant’s counsel
objected. And after sustaining the objection, the court admonished
the jury that “[t]he personal opinion of a lawyer is not relevant
in any regard. Whether she thinks her client is sane or insane
or guilty or not guilty, or whether the prosecutor thinks the
defendant is guilty or not guilty or sane or insane, is not important.
It’s ultimately up to you to determine what the evidence is.”
After the jury had begun deliberations, defense counsel
moved for a mistrial. She argued that the prosecutor’s references
to appellant’s sanity, and prior pro. per. status were improper
misconduct. The court, disagreed and denied the motion.
B. Analysis
Under the federal Constitution, conduct by a prosecutor that
does not result in the denial of specific constitutional rights but is
otherwise worthy of condemnation, is not a constitutional violation
unless the challenged action so infected the trial with unfairness as
to make the resulting conviction a denial of due process. (People v.
Harrison (2005) 35 Cal.4th 208, 242.) Less egregious conduct may
nonetheless constitute misconduct under state law if it involves the
use of deceptive or reprehensible methods to attempt to persuade
the court or jury. (Ibid.)
If a prosecutorial misconduct claim is based on the
prosecutor’s arguments to the jury, this court considers how the
statement would, or could, have been understood by a reasonable
juror in the context of the entire argument and determine whether
there is a reasonable likelihood that the jury construed or applied
8
any of the complained-of remarks in an objectionable fashion.
(People v. Dennis (1998) 17 Cal.4th 468, 522.) “In conducting
this inquiry, we ‘do not lightly infer’ that the jury drew the most
damaging rather than the least damaging meaning from the
prosecutor’s statements.” (People v. Frye (1998) 18 Cal.4th
894, 970, disapproved on another ground in People v. Doolin (2009)
45 Cal.4th 390, 421, fn. 22.) Indeed,“ ‘ “the prosecution has broad
discretion to state its views as to what the evidence shows and what
inferences may be drawn therefrom.” ’ [Citation.]” (People v. Welch
(1999) 20 Cal.4th 701, 752.)
First, the prosecutor’s arguments about appellant’s sanity
and impairment defense do not amount to prosecutorial misconduct.
The prosecutor did not misstate the law or the process by which
an NGI case is presented at trial. (See § 1026; People v. Hernandez
(2000) 22 Cal.4th 512, 520 [describing the trial process of an
NGI case].) Likewise the prosecutor’s argument on the mental
impairment evidence as it related to specific intent was not
improper and did not undermine appellant’s defense. (See People v.
Vieira (2005) 35 Cal.4th 264, 292; § 28, subd. (a) [holding that
evidence of a mental disorder shall not be admitted to negate the
capacity to form any mental state; such is admissible solely on
the issue of whether or not the accused actually formed a required
intent when a specific intent crime is charged].) Rather, the
prosecutor’s argument clarified the legal issues at stake by
providing an analytical framework for the mental illness issue that
was before the jury and by explaining what is not at issue—an NGI
defense. The prosecutor’s argument was also fair given that the
defense lawyer argued to the jury that if it found appellant suffered
from a mental illness it must find he lacked the specific intent to
commit the crimes. (See People v. Cummings (1993) 4 Cal.4th
1233, 1302, fn. 47 [“An argument which . . . point[s] out that the
defense is attempting to confuse the issues and urges the jury to
9
focus on what the prosecution believes is the relevant evidence is
not improper.”].)
Moreover, contrary to appellant’s argument on appeal, the
prosecutor acknowledged that evidence existed that appellant may
have suffered from a mental illness or disorder. Given the latitude
afforded in closing arguments, the prosecutor’s comments were not
improper.
Second, with respect to the prosecutor’s critique of Dr. Pitt,
appellant did not object to this line of argument in the trial
court, and thus he forfeited his claim of prosecutorial misconduct.
(People v. Riggs (2008) 44 Cal.4th 248, 298 [“ ‘ “[A] defendant may
not complain on appeal of prosecutorial misconduct unless in a
timely fashion—and on the same ground—the defendant made
an assignment of misconduct and requested that the jury be
admonished to disregard the impropriety. [Citation.]” ’ ”].)
Appellant’s arguments fail on the merits as well. “Although
prosecutorial arguments may not denigrate opposing counsel’s
integrity, ‘harsh and colorful attacks on the credibility of opposing
witnesses are permissible. [Citations.]’ [Citation.] Moreover, a
prosecutor ‘is free to remind the jurors that a paid witness may
accordingly be biased and is also allowed to argue, from the
evidence, that a witness’s testimony is unbelievable, unsound,
or even a patent “lie.” ’ [Citations.]” (People v. Parson (2008)
44 Cal.4th 332, 360, italics omitted.) The prosecutor’s arguments
focused on the evidentiary reasons why the jury should not trust
the opinions of Dr. Pitt. Comments about Dr. Pitt’s methods of
evaluation of appellant, her assessment of appellant’s mental
health issues and her preparation of her reports were a fair critique
of her credibility. Finally, on the prosecutor’s reference to
appellant’s prior pro. per. status, we agree that the comment was
improper, but any misconduct was cured by the court’s
admonishments to the jury to disregard it. Similarly, the
10
prosecutor’s comment about defense counsel’s awareness of
appellant’s sanity was remedied by the court’s instruction to the
jury. In reaching this conclusion, we do not agree that these
comments were likely to have been construed by the jury as an
attack on defense counsel’s personal integrity. Instead, the
prosecution’s remarks were likely interpreted as “an admonition not
to be misled by the defense interpretation of the evidence, rather
than as a personal attack on defense counsel.” (People v.
Cunningham (2001) 25 Cal.4th 926, 1002-1003.)
In sum, none of the prosecution’s comments appellant
assails on appeal warrant reversal; the jury was not likely to have
construed the comments in an objectionable manner, and the
appellant was not denied a fair trial.
II. Purported Sentencing Errors
Appellant asserts the trial court considered improper
aggravating factors when imposing the upper term of nine years,
including considering the lack of remorse and charges not alleged,
and that the court violated the prohibition against the dual use of
facts by using the same facts to impose the upper term and the
enhancements. He further contends that the court failed to
consider the mitigating evidence relating to his mental health.
A. Background
Following the guilty verdict, counsel for both parties filed
sentencing memorandums. In its memorandum, the prosecution
argued that, pursuant to California Rules of Court, rule 4.421,
five aggravating factors supported the high term: (1) the crime
involved great violence and great bodily harm; (2) appellant used
a weapon; (3) the victim was particularly vulnerable; (4) appellant
engaged in violent conduct that indicates he is a danger to society;
and (5) appellant’s prior convictions were of increasing seriousness.
The prosecution requested the high term of nine years for count 1,
11
plus a three-year enhancement for great bodily injury, and a
one-year weapons enhancement. In its sentencing memorandum,
the defense requested the low term of five years on count 1, and
encouraged the court to strike the special allegations. Defense
counsel urged the court to consider appellant’s mental disorder as
mitigation.
At the sentencing hearing, both counsel argued their
respective sentencing recommendations. The court reflected that
appellant lacked insight and remorse, observing that appellant
had told one of his evaluators that he thought the attack was
“accidental.” The court also noted that the results might have been
different had appellant taken his medicine. Nonetheless, in the
court’s view, the evidence showed that appellant attacked his father
because he was angry with him.
The court then addressed its rationale for the sentence,
stating that it agreed “with the People with regard to all their
points”—specifically: “The victim was particularly vulnerable. He
was in his own home. He is not a young man. He did nothing to
contribute to the situation. The crime was particularly vicious and
violent. The danger to society remains because the [appellant’s]
lack of insight.” The court further acknowledged: “[A]nd although
I sympathize with your mental health condition and I understand
that some degree of personal responsibility may be alleviated by
virtue of your mental illness, it ultimately still is my paramount
consideration to best assure the public that this not happen again.”
The court and counsel discussed appellant’s custody credits,
the imposition of fines and fees and appellate rights. The court
asked appellant whether he had any questions about his appellate
rights; and appellant asked why “Proposition 8 was violated by the
court” during the trial.
12
B. Analysis
“When a judgment of imprisonment is to be imposed and the
statute specifies three possible terms, the choice of the appropriate
term shall rest within the sound discretion of the court.” (§ 1170,
subd. (b).) The choices available include the decision to impose the
lower or upper term instead of the middle term of imprisonment.
5
Here, at no time during the sentencing hearing did defense
counsel object to the court’s consideration of the aggravating factors
and mitigation evidence. In People v. Scott, the California Supreme
Court held that if the party had a “meaningful opportunity to
object” at sentencing but fails to do so (People v. Scott (1994)
9 Cal.4th 331, 356), that party may not later raise claims
“involving the trial court’s failure to properly make or articulate
its discretionary sentencing choices.” (See id. at p. 353.) The

5 In imposing an upper term, the trial court may consider
circumstances in aggravation (People v. Sandoval (2007) 41 Cal.4th
825, 848; Cal. Rules of Court, rules 4.420–4.421), including:
“(a) Factors relating to the crime [¶] Factors relating to the crime,
whether or not charged or chargeable as enhancements include
that: [¶] (1) The crime involved great violence, great bodily harm,
threat of great bodily harm, or other acts disclosing a high degree
of cruelty, viciousness, or callousness; [¶] (2) The defendant was
armed with or used a weapon at the time of the commission of
the crime; [¶] . . . [¶] (8) The manner in which the crime was
carried out indicates planning, sophistication, or professionalism;
[¶] . . . [¶] (b) Factors relating to the defendant [¶] Factors relating
to the defendant include that: [¶] (1) The defendant has engaged
in violent conduct that indicates a serious danger to society;
[¶] (2) The defendant’s prior convictions as an adult or sustained
petitions in juvenile delinquency proceedings are numerous or of
increasing seriousness; [¶] (3) The defendant has served a prior
prison term.” (Cal. Rules of Court, rule 4.421(a)(1), (2), (8) &
(b)(1), (2), (3), boldface omitted.)
13
Scott rule applies to “cases in which the stated reasons allegedly
do not apply to the particular case, and cases in which the court
purportedly erred because it double-counted a particular sentencing
factor, misweighed the various factors, or failed to state any reasons
or give a sufficient number of valid reasons.” (Ibid.)
Accordingly, appellant forfeited his challenges to his
sentences by failing to raise them at sentencing. Appellant argues,
however, that the Scott forfeiture rule should not apply because he
was not given an opportunity to object to the proposed sentence.
We disagree; appellant had a sufficient and meaningful opportunity
both before and during the sentencing hearing to object to the
court’s sentencing decision. Before the hearing, both parties filed
sentencing memorandums and evidence. During the hearing the
court allowed argument and evidence from both sides. The record
also shows that after pronouncing the sentence, the court discussed
various matters with counsel and that during that time defense
counsel could have raised an objection to the court’s consideration of
sentencing factors. Nothing in the record suggests that the court
would not have allowed counsel to object to the manner in which
the court weighed the aggravating and mitigating circumstances.
The record thus demonstrates that appellant was afforded ample
opportunity to object and his failure to do so waives the issue on
appeal.
In any case, appellant’s claim fails on the merits. First,
as to appellant’s argument that the court did not fully consider
appellant’s mental health as a mitigating factor, appellant has
failed to demonstrate an abuse of discretion. (People v. Superior
Court (Alvarez) (1997) 14 Cal.4th 968, 977-978 [the burden is on the
party attacking the sentence to show that the sentencing decision
was irrational or arbitrary].) The record reflects that the trial court
considered mitigating mental health evidence. Several times
during the sentencing hearing the court acknowledged appellant’s
14
mental health issues—the court “sympathize[d]” with appellant’s
mental health condition and “under[stood] that some degree of
personal responsibility may be alleviated by virtue of [appellant’s]
mental illness[.]” Although the court did not find that the
mitigating evidence outweighed the aggravating circumstances,
it appears the trial court properly considered mitigating evidence.
(People v. Kelley (1997) 52 Cal.App.4th 568, 582 [“The court is
presumed to have considered all relevant factors unless the record
affirmatively shows the contrary.”].) And appellant’s claim that
the court failed to give sufficient weight to mitigating evidence
does not—absent a showing that the court failed in its duty to
consider such evidence—demonstrate error. (See People v. Abilez
(2007) 41 Cal.4th 472, 530 [The fact that the trial court “did not find
defendant’s proffered mitigating evidence as persuasive as he would
have liked does not undermine” the conclusion that the court
weighed the aggravating and mitigating evidence].)
Second, appellant has failed to demonstrate reversible error
as to the aggravating factors. Although the court indicated that it
agreed with the prosecutor as to all of its points, the court primarily
focused on appellant’s lack of remorse, the vulnerability of the
victim and the danger to society posed by appellant based on his
conduct. Appellant maintains that the court erred in considering
appellant’s lack of remorse and insight because he denied his guilt
and the evidence of specific intent was in conflict. (People v. Leung
(1992) 5 Cal.App.4th 482, 507, italics omitted; see also People v.
Holguin (1989) 213 Cal.App.3d 1308, 1319 [“Lack of remorse may be
used as a factor to aggravate under California Rules of Court . . .
unless the defendant has denied guilt and the evidence of guilt is
conflicting.”].) He further complains that the violent nature of the
attack was punished with the sentences imposed for the weapon
and great bodily injury enhancements, and thus those facts could
not also be used to support the upper term sentence. (§ 1170,
15
subd. (b) [the trial court “may not impose an upper term by using
the fact of any enhancement upon which sentence is imposed”];
Cal. Rules of Court, rule 4.420(c).)
Even if those contentions are correct, other aggravating
factors support his sentences. The court properly considered
the vulnerability of Ditlow, the serious danger to society posed by
appellant’s conduct and that appellant’s prior convictions were of
increasing seriousness. Appellant does not challenge any of these
aggravating factors on appeal and a single aggravating factor will
suffice to justify a trial court’s discretionary selection of an upper
term. (People v. Black (2007) 41 Cal.4th 799, 812.) Remand for
resentencing is not required when, as here, a “court could have
selected disparate facts from among those it recited to justify the
imposition of both a consecutive sentence and the upper term.”
(People v. Osband (1996) 13 Cal.4th 622, 728-729.)
Lastly, appellant’s argument that the court improperly
considered the fact that appellant could have been charged and
convicted of first-degree attempted murder is without merit.
During the sentencing before the court stated its rationale for
selecting the upper term, the court made a passing remark that
appellant was “very lucky that the People did not allege the
allegation of premeditation and deliberation because that would
carry with it a lifetime [sentence].” Nonetheless, it does not appear
that the court relied on that circumstance in reaching the sentence.
After discussing what could have been alleged, the trial court
further noted that although the facts supported a finding of
“premeditation and deliberation, . . . it wasn’t alleged, and the jury
did not have to grapple with that.” The court then proceeded to
discuss its reasons for imposing the high-term—the aggravating
factors listed in the prosecutor’s sentencing memorandum.
Given the foregoing, we conclude appellant’s challenge to his
sentences fails.
16
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
JOHNSON, J.
LUI, J.