P. v. Engel

Filed 8/6/08 P. v. Engel CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Nevada)

----

A jury convicted defendant Fred Paul Engel of attempted willful, deliberate, premeditated murder (Pen. Code, 187, subd. (a), 664, subd. (a); count 1),^[1]assault with a deadly weapon ( 245, subd. (a)(1); count 2), arson of an inhabited structure ( 451, subd. (b); count 3), and first degree burglary ( 459, 460, subd. (a); count 4). The jury found that defendant personally inflicted great bodily injury ( 12022.7, subd. (a)) in the commission of counts 1, 2 and 4; used a deadly and dangerous weapon ( 12022, subd. (b)(1)) in the commission of counts 1, 3 and 4; and intentionally caused damage exceeding $150,000 ( 12022.6, subd. (a)(2)) and used a device designed to accelerate a fire ( 451.1, subd. (a)(5)) in the commission of count 3. The trial court granted his motion for acquittal of two counts of animal cruelty.

In a bifurcated proceeding, the jury found that defendant was not insane at the time of the offenses.

Defendant was sentenced to state prison for a determinate term of 15 years 4 months plus a consecutive indeterminate term of life with the possibility of parole.

On appeal, defendant contends the trial court committed prejudicial error in its response to a jury question regarding the meaning of a sanity phase instruction. We affirm the judgment.

FACTS

Guilt phase

Prosecution case-in-chief

In April 2005, Susan Wallace hired a local company to clean her carpets and area rugs. Defendant, its employee, came to her home and cleaned the carpets. He said that he would take the area rugs to be cleaned off-site but left the house without taking them. He returned for the rugs after Wallace made a series of telephone calls to the company.

On May 6, 2005, Wallace went to bed between 10:00 p.m. and midnight. At some point her four dogs awakened her but she was confused as to why they had done so. Because they would not let her go back to bed, she went to her computer where she smelled the odor of gasoline. She left the computer, went to the foyer, turned on a light switch and saw a gasoline can but did not know where it had come from. She called out to her tenant, even though she thought he was not present, and she became frightened when she got no response.

Defendant appeared from another part of the house that Wallace could not see. He made a strange back-and-forth movement and made a loud eek, eek, eek sound. She did not see a weapon but did see him holding a cloth or canvas. He ran something up against her throat, cut her trachea, and cut her thumb to the bone. She recalled thinking she would die and wondering, [W]hy is the carpet cleaner trying to kill me? Although she did not recall being hit on the head, she had a large bruise and a wound on her side that went about 12 inches into her body. Eventually she fled to another part of the house where defendant did not follow.

Wallace telephoned 911 and fled to her neighbors house. She told them that her throat had been cut, that she probably was dying, that she needed to tell them who had attacked her, and that it was the man that cleaned [her] carpets.

The neighbors heard the sound of a smoke alarm and could see a glow through the living room windows. After paramedics arrived, the neighbors went outside and saw that Wallaces house was on fire.

Wallace was taken by ambulance and helicopter to a medical center in Roseville. The emergency room physician estimated that she had lost approximately 40 percent of her blood volume. She had stab wounds to her neck, shoulder, left chest, and left flank. She also had internal injuries as a result of these wounds.

Two of the four dogs died in the fire. The house was completely destroyed. Fire investigators determined that a road flare had been ignited at a distance safe from ignitable vapors and thrown onto the stairway, which had been doused with gasoline.

Defendant lived with his mother, Lois Engel. On the morning of the offenses, she noticed that her wooden block of kitchen knives was missing.

Surveillance video from that morning showed defendant buying gasoline at a local station.

Later that morning, defendant was detained at a gate of Beale Air Force Base. Wallace viewed him in a live lineup at the jail. When he stepped forward, she gasped and identified him as the one who had attacked her.

Defense

Defendants younger brother testified that during the latter part of 2004 and into 2005, he saw changes in defendants behavior and heard him making strange statements.

A military policeman testified to defendants bizarre behavior at the gate of Beale Air Force Base.

Defendants older brother described his unusual behavior preceding the attacks and in their immediate aftermath.

Defendants mother, Lois Engel, testified to bizarre behavior that he exhibited in the days preceding and following the offenses.

Rebuttal

On the day of the offenses, a burning pile of leaves was discovered at a Colfax campground. In the fire were a firemans axe, a hatchet, a cell phone, a cell phone charger, and several pieces of broken flare.

When Lois Engel spoke to law enforcement after the offenses, she did not express any concern about defendants mental health but did express concern about his use of methamphetamine. She explained that when defendant uses a drug other than marijuana, he gets paranoid and believes that there are cameras in light fixtures.

Sanity phase

Defense case-in-chief

Defendant testified at length about his delusional thought patterns during the years and days preceding the offenses. Only a portion of his delusional scheme involved Wallace. He believed that she was his real mother and that she was keeping underage girls in an upstairs bedroom for sexual abuse. He planned to kill her and burn down her house in order to start a civil war. He was capable of starting the war because he was a pedigree, a genetically superior being. He did not worry about getting arrested because he had diplomatic immunity and was above the Constitution.

In the Nevada County Jail, defendant was examined by a psychiatrist and given medications. He no longer hears frequent voices in his thoughts, no longer makes up false beliefs, and is no longer delusional. He can carry on a normal conversation and is not afraid to look people in their eyes.

Dr. Eugene Roeder is a psychologist. The court appointed him to determine whether defendant was sane or insane at the time he attacked Wallace. Dr. Roeder opined that defendant was suffering from a mental disease or defect in May 2005. He showed symptoms of schizophrenia. Dr. Roeder opined that defendant was insane at the time of the attack.

Dr. Charles Scott is a psychiatrist. He has performed or participated in 75 to 100 legal insanity evaluations. He made findings of legal insanity in just four or five of those cases.

Dr. Scott evaluated defendant, and he reviewed reports by Dr. Roeder and by Drs. J. Reid Meloy and Irwin Lyons. Dr. Scott opined that defendant suffered from schizophrenia paranoid type. In Dr. Scotts opinion, defendant was insane at the time of the acts due to the severity of his psychosis.

Prosecution case

Dr. Irwin Lyons has been a psychiatrist since 1961. He reviewed the other doctors reports and standardized testing. He also interviewed defendant for an hour and a half, which he believed was a sufficient amount of time. He opined that defendant was sane at the time of the offenses. Dr. Lyonss primary diagnosis was not schizophrenia but methamphetamine-ism.^[2]

Dr. J. Reid Meloy is a forensic psychologist. He diagnosed defendant with paranoid schizophrenia. Dr. Meloy opined that defendant has had a history of substance abuse and had a clinically significant level of methamphetamine in his system the night of May 6 and 7, 2005. Methamphetamine exacerbates, magnifies and worsens the symptoms of paranoid schizophrenia.

Dr. Meloy opined that defendant knew or understood the nature and quality of his acts when he attacked Wallace with a knife and burned down her home. He also was capable of distinguishing right from wrong during the commission of the crimes. Defendant therefore was not legally insane.

Defense rebuttal

Dr. Donald Stembridge is a clinical and forensic psychologist. He concluded that at the time of the attacks, defendant was suffering from a mental disease or defect. Further, defendant did not understand whether the act was morally right or morally wrong. Dr. Stembridge concluded that defendant was legally insane. He opined that defendant had been seriously impaired for a period of years before the attack.

Defendants father and paternal grandfather were paranoid schizophrenics. His maternal grandmother reportedly had been strange and delusional. The family history was a clue that defendant was not experiencing substance-induced psychosis. Another clue was the complexity of defendants delusional system. Finally, methamphetamine-induced psychosis usually occurs only to people who inject the drug, which defendant was not doing. Dr. Stembridge concluded that defendant knew he was going to try to kill Mrs. Wallace. However, he did not know that it was legally and morally wrong.

DISCUSSION

Defendant contends the trial court committed prejudicial federal and state constitutional error when it responded to a jury question regarding the meaning of a sanity phase instruction. We are not persuaded.

Background

During the sanity phase the jury was instructed with a modified version of Judicial Council of California Criminal Jury Instructions (2006-2007), CALCRIM No. 3450, which stated in relevant part: You have found the defendant guilty of attempted murder, assault with a deadly weapon, arson of an inhabited structure and burglary. You must -- now you must decide whether he was legally insane when he committed the crimes. The defendant must prove that it is more likely than not that he was legally insane when he committed the crimes. The defendant was legally insane if, number one, when he committed the crimes he had a mental disease or defect; and, number two, because of that disease or defect he did not know or understand the nature and quality of his act or did not know or understand that his act was morally or legally wrong. [] The term wrong as used in this instruction refers to both legal wrong and moral wrong. A legal wrong is an act that violates the law. A moral wrong is an act that violates societys generally accepted standards of moral obligation. Thus a defendant is incapable of distinguishing right from wrong if at the time of the crime by reason of a mental disease or defect he, number one, could not understand that his act was a violation of law or, number two, could not understand that his act was a violation of generally accepted standards of moral obligation.^[3]

During deliberations the jury sent the trial court a question regarding CALCRIM No. 3450.^[4] The questions meaning was clarified in this exchange:

THE COURT: . . . [Y]ou have sent us out a written question. And I want to make sure I understand. The question seems to have a couple of different parts. So I want to make sure I understand the question, which Im not going to answer today.

JUROR: Right.

THE COURT: Ill answer it or I should say respond to it because sometimes when we answer we have to duck the question because sometimes jurors ask us questions that are really your question to answer. And sometimes you dont. And the lawyers and I have to spend a little time parsing through this to make sure youre asking us something that were supposed to answer, okay. Which is why I want to have this little discussion to make sure I understand the question clearly. And, Mr. [Juror], this is your handwriting Im reading?

JUROR: No. Its clearer than mine.

THE COURT: I never criticize anybody elses penmanship. Okay. So it begins hypothetically speaking, which is intriguing. And then that doesnt seem to actually connect to the next part of the sentence. Maybe thats just letting off steam, okay. On 3450, which is the insanity instruction, if we the jury decided and agreed on number one or number two and -- and Im not quite sure.

JUROR: No, no, no. Or number one, period.

THE COURT: If we the jury decided on number one, period. Okay. Number one is?

JUROR: That he had a mental defect.

THE COURT: Okay. On number two do we need to agree the defendant did or did not know or understand, or being underlined, the nature and quality of his act. Or did not -- did or did not know or understand that his act was morally or legally wrong. Do we infer the or to mean either, or do we infer the or to mean both must be agreed upon? Okay. And Im not sure what the both in that.

JUROR: Mean and/or.

THE COURT: So, put succinctly, is your question do each of these ors that youve underlined mean or or do they mean and. Is that your question?

JUROR: Yes.

JUROR: How many of them do we have to decide to make that?

THE COURT: Well, youve asked an age old question here. And well spend some time coming up with a precise answer for you, which Ill give you at 9:00 a.m. on Tuesday morning, okay?

Defendants counsel submitted a proposed response to the jurys question. The court formulated a response, to which defendant filed an objection.^[5] The court responded to the jurys question as follows:

Your question [] number one [] suggests two sub parts[. Here are] the responses. [Or] as used in jury instruction 3450 is a dysjunctive [sic] meaning either. [And] as used in jury instruction 3450 is a conjunctive meaning that both items conjoined with an and must be taken together. Therefore, remembering that the defendant bears the burden of proof on the issue of insanity, the defendant has met that burden as to any one element of the defense of not guilty by reason of insanity if the defendant has established by a preponderance of the evidence that one of the alternatives within that element that is separated by an or is more likely true than not true. Okay.

Number two, with respect to the elements of the defense of not guilty by reason of insanity. In order to sustain its burden of proof, the defense must convince all twelve jurors, A, that it is more likely than not that on May 7, 2005, the defendant had a mental disease or defect and any one of the following; B, that as a result of that mental disease or defect, it is more likely than not that the defendant did not know or understand the nature and quality of his acts; or, C, that as a result of that mental disease or defect, it is more likely than not that the defendant did not know or understand that his acts were legally wrong; or, D, that, as a result of that mental disease or defect, it is more likely than not that the defendant did not know or understand that his acts were morally wrong.

Please remember that you must read this response together with the full text of jury instruction 450 [sic] that you have been given. This response is intended to address your questions and does not supersede and is not intended to alter the jury instructions read to you at the end of the trial.

Following the sanity phase verdict, defendant filed a new trial motion. One of the grounds for the motion was the courts response to the jurys question. The People filed opposition, and the court denied the motion.

Analysis

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. [Citations.] [T]he fact that the necessary elements of a jury charge are to be found in two instructions rather than in one instruction does not, in itself, make the charge prejudicial. [Citation.] The absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole. [Citation.] (Peoplev.Burgener (1986) 41 Cal.3d 505, 538-539, overruled on another point in People v. Reyes (1998) 19 Cal.4th 743.) We assume that jurors are intelligent persons who are capable of understanding and correlating all jury instructions that are given. (People v. Mills (1991) 1 Cal.App.4th 898, 918; People v. Kegler (1987) 197 Cal.App.3d 72, 80.) These rules apply equally to the courts original charge and to its response to the jurys question.

The trial court told the jury that its response does not supersede and is not intended to alter the jury instructions read to you at the end of the trial. The court also told the jury that or, as used in the instruction, is a disjunctive meaning either. Although the court did not expressly state that or, as defined for the instruction, had the same meaning when used in the response, reasonable jurors would readily perceive that this was so.

The trial courts response told the jury that defendant meets his burden as to any one element of the insanity defense if he has established by a preponderance of the evidence that one of the alternatives within that element that is separated by an or is more likely true than not true. (Italics added.)

The response set forth four elements, labeled A, B, C and D.^[6] Within element A were two alternatives separated by an or, namely, mental disease or defect. Within element B were two alternatives, did not know or understand the nature and quality of his acts. Within element C were two alternatives, did not know or understand that his acts were legally wrong. Within element D were two alternatives, did not know or understand that his acts were morally wrong. (Italics added.)

The courts response told the jurors that defendant was required to prove element A and prove element B or element C or element D. Thus, in addition to proving element A, defendant also had to prove one of the three succeeding elements, B, C or D. But, because elements B, C and D each could be proved by establishing one of the two alternatives separated by an or, defendant was required to prove only one alternative within element B, or one alternative within element C, or one alternative within element D.

Defendant contends the trial courts response erroneously suggested, by its structure and phrasing, that [he] was required to prove that he both failed to know and to understand various matters at the time of the offenses in order to prevail on the insanity defense.^[7] (Original italics.) He reasons that, because the court chose to group the available alternatives into elements B, C and D, and because each element was separated by an or, jurors could readily treat each of the three [elements] as disjunctive but nevertheless conclude that [he] was required to prove each of the matters -- absence of knowledge or understanding -- that were further subsumed within each [element]. (Original italics, fn. omitted.) Defendant claims he was prejudiced because the expert testimony suggested that, while he may have known certain matters placed in issue by the insanity requirements, he had not truly understood them.

Defendants argument requires the jurors to read or properly, as a disjunctive, where it separates elements B, C and D; and to read the same word improperly, as a conjunctive, where it separates know from understand within elements B, C and D. It is not reasonably likely that any juror understood the instruction in this strained and unreasonable manner. (Peoplev.Clair (1992) 2 Cal.4th 629, 663; Peoplev.Kelly (1992) 1 Cal.4th 495, 525-526.) The court expressly defined and and or as used in CALCRIM No. 3450, and told the jury to read its response together with that instruction. No reasonable juror could have believed that and or or had a different meaning in the response than in the instruction. Thus the stated definition, that or is a disjunctive, applied equally to CALCRIM 3450 and to the courts response. The definition necessarily applied to the alternatives within elements B, C and D. No error is shown.

DISPOSITION

The judgment is affirmed.

NICHOLSON , J.

We concur:

SCOTLAND, P.J.

CANTIL-SAKAUYE , J.

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^[1] Further undesignated statutory references are to the Penal Code.

^[2] Dr. Meloy testified that prior to the trial, he had never heard the term methamphetamine-ism.

^[3] The Attorney General contends defendant invited error and forfeited any claim of error with respect to the standard jury instruction on sanity, CALCRIM No. 3450, because counsel collaborated on the formulation of that instruction. However, defendants claim of error relates to the trial courts response to the jurys question about that instruction during deliberations. Because defendant proposed a response to the question, which the trial court rejected in favor of its own response, he has preserved his claim for review on appeal.

^[4] The jury note stated: Hypothetically speaking . . . [o]n 3450, if we the jury decided and agreed on #1. On #2, do we need to agree the defendant did or did not know or understand the nature & quality of his act or did or did not know or understand that his act was morally or legally wrong. Do we infer the or to mean either? Or do we infer the or to mean both must be agreed upon. (Original underscoring.)

^[5] Defendants objection was limited to the portion of the response that required jury unanimity. He does not renew that objection on appeal.

^[6] In his reply brief, defendant complains that [n]owhere did the trial court inform jurors that the alternatives listed under A, B, and C were themselves elements of the insanity defense. We believe the response made that fact reasonably evident to intelligent jurors. The response referred to alternatives within that element that are separated by an or. (Italics added.) The alternatives . . . separated by an or were located within A, B, C and D, thus implying that those were the elements.

^[7] Defendants opening brief argues that the trial courts response apparently required a unanimous verdict that [he] failed to both know and understand (1) nature and quality, (2) legal wrong, and (3) moral wrong. Alternatively stated, the response required [defendant] to show that he neither knew nor understood (1) nature and quality, (2) legal wrong, and (3) moral wrong. (Italics added.) By these words, the brief appears to contend that the response required him to prove all six alternatives. Defendants reply brief appears to retreat from such an extreme contention.