Filed 2/23/18 P. v. Howard CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

TED PRESTON HOWARD,

Defendant and Appellant.
D073008



(Super. Ct. No. SWF1201647)

APPEAL from a judgment of the Superior Court of Riverside County, Bernard J. Schwartz, Judge. Affirmed with directions.
Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C. Taylor, Genevieve Herbert and Daniel Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
A jury found Ted Preston Howard guilty of first degree murder (Pen. Code, § 187, subd. (a)). In a separate proceeding, the court found Howard had not established he was insane at the time of the offense. The court subsequently sentenced him to 25 years to life in prison.
Howard appeals, contending we must reduce his conviction from first degree murder to second degree murder because there was insufficient evidence to support the premeditation and deliberation elements of first degree murder. In addition, he contends we must remand the matter for a new sanity trial because the court abused its discretion by denying his request for a continuance to allow him to be further evaluated for malingering his psychotic symptoms. Lastly, he contends we should direct the court to correct two clerical errors in the abstract of judgment.
We conclude there was substantial evidence to support the premeditation and deliberation elements of first degree murder. We further conclude the court did not abuse its discretion in denying Howard's request for a continuance of the sanity trial. Finally, the People concede and we agree the abstract of judgment contains clerical errors requiring correction. We, therefore, remand the matter with directions to make the required corrections. In all other respects, we affirm the judgment.
II
BACKGROUND
A
Guilt Phase Evidence
1
Howard called 911 and reported he killed his wife. When the dispatcher asked him for basic factual information, such as his name, address, the cross street, and where in the house his wife was located, he answered the dispatcher's questions clearly and directly. However, when the dispatcher tried to find out from him what happened, he evaded the dispatcher's questions by answering "I don't know," "She's dead," "Huh," or similar nonresponses.
When police officers arrived at Howard's home, they found it filthy and in disarray. There were cat feces and trash on the floor. They found his wife lying face down in the hallway. She was not breathing or moving, she had no pulse, she was cold to the touch, and she showed signs of lividity (i.e., her blood was pooling toward the ground). Cut pieces of electrical cord bound her arms and her feet. A plastic trash bag covered her head and its drawstring ties were tied in a tight knot around her neck. The part of the bag above the head was knotted and the top of the bag was cut off.
A forensic pathologist believed Howard's wife died from asphyxia with a plastic bag because there was no evidence of trauma or strangulation and there was a distinct pattern of paleness in the lividity consistent with the drawstring ties. The pathologist believed the plastic bag and the extension cord bindings were applied before Howard's wife died and the bindings were applied before the plastic bag. The pathologist based these opinions on the distinct patterns of paleness in the lividity from the drawstring ties and the bindings as well as the absence of defensive wounds on Howard's wife's neck and around the bindings. Had Howard's wife been bound after she was asphyxiated with the plastic bag, the pathologist would have expected Howard's wife's neck to be injured because an adult would have tried to pull the bag off. The pathologist acknowledged a person being bound would also actively resist, causing injury to the skin around the bindings, and there would not be any defense wounds around the bindings if they were applied after Howard's wife died. The pathologist also acknowledged there would be some pattern of paleness in the lividity even if the bindings were applied after Howard's wife died; however, had this been the timing, the pathologist believed the patterns of paleness in lividity from the drawstring ties and bindings would be less distinct than they were.
2
During an evaluation by a clinical psychologist, Howard said he had a mental breakdown when he was 18 years old. After the breakdown, he became paranoid and went into hiding. Shortly before he killed his wife, he experienced delusions of persecution. He thought an entity was coming up from under his floor and doing things to him. On the day he killed his wife, he received a radio message about zombies and the need "to do something between 9:30 and noon that day." He choked his wife to death sometime afterward. He then bound his wife with an extension cord and placed a plastic bag over her head to prevent her from turning into a zombie.
The clinical psychologist diagnosed Howard with major depression with psychotic features, alcohol abuse, and schizotypal personality disorder. The psychologist administered the test of memory malingering to determine if Howard was "[m]alingering as to telling the truth about what occurred during the events surrounding the killing of his wife." Howard passed the test, indicating he was not malingering.
3
Howard's stepsons had known Howard for decades and had never seen Howard experience hallucinations or delusions. Howard did not express any delusions or hallucinations during his booking interview.
A forensic psychologist explained major depressive disorder affects a person's mood, but not a person's cognitive functions, such as the ability to plan. The psychologist also explained a personality disorder is an enduring trait apparent throughout a person's lifespan and is not associated with hallucinations and delusions. A person with schizotypal personality disorder usually has odd beliefs, social anxiety, difficulty interacting with other people, and odd perceptual experiences. People with the disorder "stay to themselves, appear odd, say odd things, and have a difficult time sort of functioning normally in society." However, the disorder does not affect a person's ability to plan.
The forensic psychologist further explained the test of memory malingering is a test to assess whether a person is faking memory impairment. The psychologist did not believe it was an appropriate test to assess whether a person was malingering psychotic symptoms. A more appropriate test is the structured interview of reported symptoms (SIRS-2), which is specifically designed to assess malingering of psychiatric symptoms.
Finally, the forensic psychologist reviewed Howard's 911 call and booking interview. Howard was very clear and coherent in them and the psychologist did not note anything in them indicative of psychosis.
B
Sanity Phase Evidence
Subject to the same objections and court rulings, the court admitted all of the exhibits and testimony from the guilt phase into evidence at the sanity phase of the trial.
1
a
A forensic psychologist and a forensic psychiatrist testified for the prosecution. The prosecution's psychologist evaluated Howard, but was unable to diagnose him with a specific type of mental illness. The psychologist believed, if Howard had a severe psychotic mental illness, his family members would have likely noticed signs of it. The psychologist believed Howard was sane at the time of the killing because the psychologist did not find enough evidence during the evaluation to conclude Howard was insane. The psychologist also believed some of Howard's beliefs seemed contrived, and it would be very unusual for a person to suffer a delusion at the time of a crime and exhibit no signs of it shortly after.
b
The prosecution's psychiatrist diagnosed Howard with acute chronic alcohol intoxication and dependence, but with no other mental illness. The psychiatrist believed Howard was sane at the time of the killing and was induced to act by alcohol intoxication. Like the prosecution's psychologist, the prosecution's psychiatrist believed it was unlikely, although not impossible, for Howard to be lucid a few hours after the killing if Howard had suffered a psychotic episode during the killing. Moreover, in the psychiatrist's experience, very few people with psychosis can be determined to be legally insane.
2
a
A forensic psychologist and a forensic psychiatrist also testified for the defense. During Howard's evaluation with the defense psychologist, Howard stated he had a personal and family history of mental illness. Before the killing he was experiencing delusional thinking and paranoia. He felt there was an "unseen force" causing strange things to happen in his home. He choked his wife sometime after hearing zombies on the radio. After he killed her, he put a bag over her head to protect her from bugs.
The defense psychologist diagnosed Howard with schizophrenia and alcohol use disorder. The psychologist believed Howard was legally insane when he killed his wife because he did not know right from wrong at the time.
The defense psychologist administered the SIRS-2 test to evaluate whether Howard was exaggerating or feigning mental illness. The psychologist initially testified the results showed there was no increased likelihood Howard was feigning. However, on cross-examination, the psychologist admitted she made calculation errors in scoring the test. When scored correctly, the test results placed Howard in the "indeterminate evaluate" category. For people in this category, the likelihood of feigning exceeds 50 percent and further evaluation is required to make a malingering determination.
b
The defense psychiatrist diagnosed Howard with paranoid schizophrenia and moderate severe alcohol misuse. The psychiatrist also believed, before Howard killed his wife, Howard experienced delusions of influence, persecutory delusions, and visual and auditory hallucinations and, at the time Howard killed his wife, Howard experienced psychosis.
The defense psychiatrist observed no signs or symptoms of malingering by Howard. To the contrary, Howard did not want to be found insane. He wanted to go to prison, not a mental hospital. Moreover, in the psychiatrist's experience, malingerers cannot malinger the thought disorder associated with psychosis. The psychiatrist testified he had never given a malingering test. He would perform a detailed record review rather than rely on a malingering test if he thought a person was feigning symptoms. He also strongly criticized the SIRS-2 test, believing it was not a particularly good instrument for detecting malingering.
The defense psychiatrist believed Howard was insane at the time of the killing because, although there was evidence Howard knew the nature and quality of his actions, there was no evidence he considered or appreciated the morality or illegality of killing his wife.
3
A second forensic psychologist testified for the prosecution in rebuttal. The psychologist believed Howard had schizotypal personality disorder. However, the psychologist explained being mentally ill or psychotic at the time of an offense does not equal insanity.
Regardless, the psychologist did not believe Howard was psychotic at the time he killed his wife. The psychologist explained psychosis does not come and go quickly. It takes days, weeks, or months for psychosis to build up and, once an episode is over, it takes days, weeks, or months for the psychotic symptoms to resolve. The symptoms do not suddenly disappear in a matter of minutes or hours. Consequently, had Howard been psychotic when he killed his wife, the symptoms would have been apparent during the 911 call, when the police officers encountered him in his home, and during the booking interview. Yet, the psychologist saw no evidence of psychosis at any of those points in time.
The psychologist did not believe Howard was insane when he killed his wife. Based on the psychologist's evaluation of him, the circumstances of the crime, and the information in the record, including his statements during the 911 call, the psychologist believed Howard understood the nature and quality of his actions and could distinguish right from wrong. The psychologist also believed Howard exaggerated his symptoms during her evaluation of him.
The psychologist indicated the SIRS-2 test is an appropriate and reliable test for assessing malingering of mental illness symptoms. She also acknowledged the results for Howard were indeterminate and could not be used as direct or indirect evidence he was malingering. Although there were other means of further evaluating whether Howard was malingering, the psychologist did not believe any further evaluation was necessary.
III
DISCUSSION
A
Howard contends we must reduce his first degree murder conviction to second degree murder because there was insufficient evidence to support the jury's finding he killed his wife with premeditation and deliberation. " 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.] '[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " (People v. Lewis (2009) 46 Cal.4th 1255, 1289–1290, italics omitted.)
First degree murder includes any willful, deliberate and premeditated killing. (Pen. Code, § 189.) "In this context, ' "premeditated" means "considered beforehand," and "deliberate" means "formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action." ' " (People v. Jennings (2010) 50 Cal.4th 616, 645.) " ' "An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse.' [Citation.] A reviewing court normally considers three kinds of evidence to determine whether a finding of premeditation and deliberation is adequately supported—preexisting motive, planning activity, and manner of killing—but "[t]hese factors need not be present in any particular combination to find substantial evidence of premeditation and deliberation." ' " (People v. Burney (2009) 47 Cal.4th 203, 235; accord, People v. Brady (2010) 50 Cal.4th 547, 561–562.)
In this case, Howard's motive, if any, for killing his wife was not known. Nonetheless, the jury could have reasonably found from the forensic pathologist's testimony that Howard bound his wife's hands and feet to disable her before he asphyxiated her and, consequently, had ample time to reflect upon and plan her death. (See People v. Soloman (2010) 49 Cal.4th 792, 814–815; People v. Proctor (1992) 4 Cal.4th 499, 529.) The jury also could have reasonably found from the manner of killing, asphyxiation, that Howard had time to consider the murderous nature of his actions. (People v. Soloman, supra, at p. 815; see People v. Bonillas (1989) 48 Cal.3d 757, 792 ["Ligature strangulation is in its nature a deliberate act"]; see also People v. Memro (1995) 11 Cal.4th 786, 863–864 [method of killing may be sufficient by itself to support a finding of premeditation and deliberation].) Accordingly, we conclude there was substantial evidence of premeditation and deliberation to support Howard's first degree murder conviction.
B
1
After the prosecution impeached the defense psychologist with her miscalculation of Howard's score on the SIRS-2 test, Howard sought a continuance for "at least a couple of months" to allow Howard to undergo further evaluation to determine whether he was feigning psychosis. The prosecutor opposed the motion, arguing the sanity phase of the trial had already been delayed for 11 months for other unrelated reasons and the court had ample evidence, including six or seven expert opinions and evaluations, to make an informed decision on Howard's sanity. The court deferred ruling on the request until after it had heard the remainder of the evidence, but indicated it was unclear what additional evaluation would be necessary since the test results placed Howard in the category of people who were more likely than not to be feigning. The court was also concerned that, if the defense experts evaluated Howard further, the prosecution's experts would need to evaluate Howard further, and there would be no end to the evaluations.
After the close of evidence, the court once again heard from counsel on the matter. Defense counsel requested the court either not rely on the SIRS-2 test at all or allow defense counsel to have Howard further evaluated. The prosecution reiterated its prior argument that there was not good cause for the continuance because the SIRS-2 test does not reveal much by itself and further testing would significantly delay the proceedings with little likelihood of giving the court more information than was included in the evaluations and testimony already before the court.
The court denied the continuance, finding further evaluation would substantially delay the proceedings and was unlikely to be helpful to the court since, as the defense psychiatrist testified, there was no one definitive test that would provide certainty as to whether Howard was feigning. At best, a continuance would only result in two more diametrically opposed expert opinions. To resolve the matter, the court excluded consideration of the SIRS-2 test from the court's determination of Howard's sanity, which the court found rendered further evaluation of malingering unnecessary.
2
Howard contends we must reverse the judgment and remand the matter for a new sanity trial because the court abused its discretion by denying his request for a continuance to allow him to be further evaluated for malingering his psychotic symptoms. "A continuance in a criminal case may be granted only for good cause. (§ 1050, subd. (e).) Whether good cause exists is a question for the trial court's discretion. [Citation.] The court must consider ' " 'not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion.' " ' [Citation.] While a showing of good cause requires that both counsel and the defendant demonstrate they have prepared for trial with due diligence [citation], the trial court may not exercise its discretion 'so as to deprive the defendant or his attorney of a reasonable opportunity to prepare.' [Citation.]
"A reviewing court considers the circumstances of each case and the reasons presented for the request to determine whether a trial court's denial of a continuance was so arbitrary as to deny due process. [Citation.] Absent a showing of an abuse of discretion and prejudice, the trial court's denial does not warrant reversal."
(People v. Doolin (2009) 45 Cal.4th 390, 450; accord, People v. Garcia (2011) 52 Cal.4th 706, 758; People v. Alexander (2010) 49 Cal.4th 846, 934–935.)
Here, the court declined to grant the continuance because it had already received a significant amount of evidence on the sanity question. In addition, it did not believe further evidence regarding malingering would prove fruitful as there was no one definitive test of malingering. Indeed, the parties' experts disagreed as to whether the SIRS-2 test or other malingering tests actually produced valid and reliable information. Thus, the court concluded a continuance was not likely to resolve the question and, instead, would only result in additional conflicting evidence for the court's consideration. To obviate concerns about the SIRS-2 test performed by the defense psychologist, the court excluded the test results from its consideration of Howard's sanity. Under these circumstances, we cannot conclude the court's decision was so arbitrary as to deny due process. Accordingly, we conclude Howard has not established the court abused its discretion in denying the continuance.
C
1
The abstract of judgment mistakenly indicates Howard was convicted by the court rather than by a jury. The abstract of judgment also mistakenly records Howard's presentence credits in section 12, rather than in section 15. Howard contends, the People concede, and we agree these errors require correction. Accordingly, we remand the matter for the trial court to make the appropriate corrections. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [the court has the inherent power to correct clerical errors in court records].)


IV
DISPOSITION
The matter is remanded to the trial court with directions to correct the abstract of judgment to show Howard was convicted by a jury, rather than by the court, and to record Howard's presentence credits in section 15, rather than section 12. The court is further directed to forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.



McCONNELL, P. J.

WE CONCUR:



BENKE, J.



IRION, J.