P. v. Willison

Filed 5/21/08 P. v. Willison CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. F. Paul Dickerson, III, Judge. Affirmed.

Stephen S. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Jeffrey J. Koch, Supervising Deputy Attorney General, for Plaintiff and Respondent.

Defendant stole the purse of an 89-year-old woman, Sadie Steiner (Sadie/victim) by grabbing it out of the shopping cart where she had placed it. After defendant took the purse, Sadie fell to the ground and sustained injuries. When defendant tried to escape with the purse, several bystanders chased after him. Defendant tried to fend them off by brandishing a tire iron^[1]but they eventually captured and detained him until police arrived.

Defendant was charged with one count of robbery (Pen. Code,^[2] 211), one count of elder abuse ( 368, subd. (b)(1)), and five counts of assault with a deadly weapon for each bystander defendant assaulted during the chase. ( 245, subd. (a)(1).) On the robbery count, the prosecution alleged two enhancements: that the victim was over 65 years of age ( 667.9, subd. (a)), and defendant personally inflicted great bodily injury on a person over 70 years of age. ( 12022.7, subd. (c).)

After a jury trial, defendant was convicted of robbery and the jury found true the enhancements that the victim was over 65 years old, and defendant personally inflicted great bodily injury on a person over the age of 70. The jury deadlocked on the remaining counts and the trial court declared a mistrial as to those counts.

Defendant pled guilty to one count of assault with a deadly weapon in exchange for an agreement that the assault conviction would not be considered a strike prior, and that any sentencing term imposed would run concurrent to the robbery count. The trial court sentenced defendant to a total of nine years in state prison as follows: the midterm of three years for the robbery, plus a consecutive five-year enhancement for great bodily injury on a person over 70, and a consecutive one-year enhancement for a victim 65 years or older.

On appeal, defendant asserts that (1) the trial court failed to sua sponte instruct on diminished actuality, (2) defense counsel rendered ineffective assistance by failing to request diminished actuality instructions, (3) the jurys deadlock on the elder abuse count was tantamount to a finding of not true on the section 667.9 and section 12022.7 elderly victim enhancements, and (4) section 654 bars imposition of multiple punishment for the section 667.9 and section 12022.7 enhancements. We reject all of defendants claims and affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

On January 7, 2005, 89-year-old Sadie and her daughter, Donna, were shopping at a large discount store in Hemet. When they exited the store, Sadie was pushing a shopping cart with her purse in the basket of the cart. Sadie had passed her arm through the handles of the purse.^[3]

Maria Mulherin and her daughter Illiana were walking through the stores parking lot on their way into the store. They acknowledged the elderly women as they passed by.

As Donna loaded her purchases into her cars trunk, she heard a commotion behind her. She turned to see defendant grabbing Sadies purse. Sadie flew through the air and landed face first onto the wet pavement. Sadie received bruises to her face, arm, and neck, and her front teeth were loosened. Sadies hand was cut, exposing a tendon, and her right knee was fractured in the fall.

Donna screamed, then yelled, help me, and Purse snatcher, purse snatcher[!] Defendant continued past Maria and Illiana with Sadies purse. Maria attempted to chase defendant but was restrained by her daughter. Maria then pointed at defendant and yelled, Grab him, . . . he just assaulted an old lady.

Three male bystanders began chasing defendant. As defendant tried to elude the men, he ran past four teenage boys. One of the men told the teenagers that defendant hit an old lady and had taken her purse. The teenage boys then took up the chase.

Defendant ran down a nearby street and across a field. He swung the tire iron he was carrying at the teenagers then continued his escape by hopping over a backyard fence, ran down a driveway, and onto another street. Defendant swung the tire iron several more times and then dropped it. Defendant was finally captured by the teenage boys who held him until the police arrived.

A videotape of the theft was recorded by the stores surveillance cameras.

DISCUSSION

A. The Mental Impairment Jury Instruction Was Properly Omitted.

Prior to the preliminary hearing, defense counsel informed the court that defendant was unable to cooperate with him. Up until the date of the offenses, defendant had been taking two medications prescribed by a psychiatrist; however their use was discontinued once defendant was incarcerated. Defendant was also subjected to a Welfare and Institutions Code section 5150 hold.

Based on defense counsels representations, the trial court suspended criminal proceedings and appointed Drs. Assandri and Sewani pursuant to section 1368 to evaluate (1) whether defendant was competent to stand trial, (2) whether he could be restored to competency with antipsychotic medications, and (3) whether he was a danger to himself or others. The doctors opined defendant was not competent to stand trial and believed medication would restore him to competency. Both doctors believed defendant was a danger to himself, but only Dr. Assandri believed he was a danger to others.

Upon receipt of the doctors reports, the trial court found defendant mentally incompetent to stand trial and referred him to the Department of Mental Health for a recommendation regarding placement. It was recommended that defendant be placed at Patton State Hospital. The court ordered the recommended placement. The court also made findings that defendant needed antipsychotic medications, that the medications would restore him to competency, and that he was a danger to himself and/or others.

Within approximately three months, Patton State Hospital provided a certificate that defendant was restored to mental competency and criminal proceedings were reinstated.

After a preliminary hearing, defendant was held to answer on the charges. When defendant was arraigned on the information, he pled not guilty by reason of insanity as to all counts and denied the enhancements.

Dr. Assandri was appointed pursuant to sections 1026 and 25, subdivision (b), to evaluate (1) whether defendant was legally insane at the time of the offenses; (2) whether he had a mental disease or defect that prevented him from understanding right from wrong; and (3) if he was insane at the time of the offenses, had fully recovered his sanity, and was no longer a danger to himself and others. After interviewing defendant, Dr. Assandri opined that defendant was sane at the time of the offenses.

The matter was assigned to trial, a jury panel was selected, and voir dire began. During a break in voir dire, the prosecutor informed the court that he had received a witness list from the defense that afternoon and among the defense witnesses listed were Drs. Sewani, Assandri, and Leonard. The prosecutor objected that he did not know the defense was going to mount a mental defense. He conceded that he had received reports from Drs. Sewani and Assandri, but complained that he never received any report from Dr. Leonard.

Defense counsel stated that he did not have a report from Dr. Leonard but he had planned to call the doctors to see if they could provide information as to whether defendant had the ability to form the specific intent to steal. He had planned to contact the doctors during breaks. The trial court responded that there must be a report from a doctor that stated defendant could not form the specific intent to steal, before he would allow defense counsel to call that doctor to the stand. The court indicated it would defer ruling on the matter until defense counsel had spoken with the doctors.

The prosecutor complained that the doctors reports should have been produced in discovery so that he would not be ambushed at the time the jury panel was being voir dired. Defense counsel admitted he did not provide the prosecutor a witness list. The trial court chided defense counsel for not providing Dr. Leonards name to the prosecution when defense counsel knew the doctor had treated defendant 18 months earlier. Defense counsel explained that he had not wanted to burden the doctors until he knew the matter was actually going to go to trial.

The court ordered defense counsel to provide a written memorandum as to what Drs. Sewani and Assandri would testify to. The court further made a tentative order that Dr. Leonard could not be called to testify. At the conclusion of the trial day, the court reiterated its tentative ruling.

The following day, defense counsel reported to the court that he was unable to contact Drs. Sewani or Assandri. He believed they might be relevant as rebuttal witnesses, so he was not going to call them. Defense counsel stated, if the intent issue became big in this case, that then I wouldthink about calling them. But right now I dont have any plans to call them. The court stated it was not going to make a ruling on Drs. Sewani and Assandri as the defense was not going to call them. It also retracted its earlier ruling regarding Dr. Leonard because defense counsel was not going to call her either.

Defendant claims that the trial court had a duty to instruct the jury on diminished actuality^[4]because there was sufficient evidence in the record to support giving the instruction. In closing argument, defense counsel contends there was sufficient evidence defendant had emotional and mental problems that caused him to steal the purse. Concomitantly, defendant also asserts that his counsel rendered ineffective assistance because he failed to request the instruction.

1. Insufficient Evidence to Instruct on Diminished Actuality.

Defendant claims that there was evidence in the record to support a mental defense. During the defense case-in-chief, defendant testified that at the time of the offenses he was paranoid, very afraid, panicked, took the purse on impulse, and only intended to enter a nearby store to call his grandmother so she could take his car back home.

Defendant further claims he acted bizarrely towards the citizens who chased him, he bizarrely stated to the interrogating officer that he had a tire iron with him in case someone tried to hurt him, and he was upset and crying during the police interview.

We disagree with defendants contention that there was sufficient evidence to give the mental impairment instruction and that counsel was ineffective for failing to request the instruction.

To begin with, the California Supreme Court has already established that there is no sua sponte duty to instruct on a mental impairment defense absent a request. (People v. Ervin (2000) 22 Cal.4th 48, 91; People v. Saille (1991) 54 Cal.3d 1103, 1119.)

Second, defense counsels failure to request the instruction waives the matter on appeal. (People v. Mayfield (1997) 14 Cal.4th 668, 778-779.) Even if the matter had not been waived, there was insufficient evidence to support giving CALCRIM No. 3428.

CALCRIM No. 3428 is in the nature of a pinpoint instruction that is required to be given only on request where substantial evidence supports the defense theory. (People v. Ervin, supra, 22 Cal.4th at p. 91, [referencing CALJIC No. 3.32, predecessor to CALCRIM No. 3428]; In re Christian S. (1994) 7 Cal.4th 768, 783.) Mental illness, disorder, or defect is a medical diagnosis. (People v. Kelly (1992) 1 Cal.4th 495, 540; People v. Moore (2002) 96 Cal.App.4th 1105, 1116-1117.) Expert medical testimony is necessary to establish a defendant suffered from a mental disease, mental defect, or mental disorder because jurors cannot make such a determination from common experience. (People v. Moore, at pp. 1116-1117.)

Defendant contends medical testimony existed that would have shown he could not form the specific intent to steal the purse. He argues that defense counsel was ineffective because (1) counsels belated discovery disclosure of Dr. Leonard, defendants treating psychiatrist prior to the offenses, resulted in an evidentiary sanction which deprived him of the doctors medical records and testimony, and (2) counsel should have tendered Dr. Sewanis and Dr. Assandris medical evaluations as proof that he suffered from a mental illness that prevented him from actually forming the specific intent to commit robbery.

With respect to Dr. Leonards expert testimony, there is nothing in the record that reveals what she would have testified to. As there was no offer of proof regarding the content of her testimony, we cannot say that the courts exclusion of her testimony was error.^[5]

The record is replete with defendants admissions that he could form the specific intent to permanently deprive the victim of her purse at the time he grabbed it out of the cart. Defendant had a motive to steal: he testified his grandparents were his sole means of support; he had no money for school, and he intended to use the stolen money to pay for his schooling.

On the day of the incident, defendant felt depressed, so he used $9 of the allowance his grandmother gave him to buy beer. He drank six to eight cans in his grandparents car for an hour and a half.

Defendant testified that the cars transmission slipped, so he parked the car on a side street next to a store parking lot. He wanted to call his grandparents to have them come and pick up their car. Defendant testified he was drunk, paranoid, and wasnt in [his] right mind. Prior to exiting the car, he placed a tire iron in his back pocket because he believed the tire iron would protect him from anyone who attacked him. He stated he did not have a plan to do anything when he exited the car.

As defendant walked across the parking lot toward the store entrance, he had a knee-jerk impulse^[6]to steal a purse. He walked across the large parking lot towards the front of the store and stood at the entryway. He looked around for someone who had a purse. Instead of walking inside the store, he walked away from the store entrance and moved towards the center of the parking lot. As he walked to the center of the parking lot, he intended to take the first purse he saw. He crossed the victims path and in a split moment he made the decision to take the purse. He turned toward the victim to quickly grab the purse and make a clean getaway. He grabbed the purse out of the victims shopping cart with his right hand and headed out of the parking lot toward his car to escape. Defendant said the instant he took the purse, and even before he grabbed the purse, he knew it was wrong.

Once defendant had grabbed the purse, he headed toward a nearby street to the side of the store. He had the purse in his possession for approximately 50 to 75 yards. Defendant heard a female scream and people running behind him, which he knew was a result of what he had just done. He felt panicked, paranoid, and afraid because he was being pursued by the bystanders and was afraid they would hurt him.

Defendant testified that he felt remorse for stealing the victims purse, saying it was the biggest mistake he ever made and regrets it every day. He stated that he did not take anything from the victims purse; however $25 to $35 was, in fact, found missing. After his capture, defendant admitted to a police officer that he took the purse. He confessed because he knew it was wrong, not because there were witnesses and a videotape of the offenses.

As the state of the evidence was that he wanted to steal money for school and not because of a mental defect, there was no evidentiary basis for the trial court to instruct on mental impairment. The crux of defendants claim was that the prosecution did not prove he used force or fear to deprive the victim of her property. Defendant denied using force to pull the purse away from the victim. During closing argument, defense counsel argued that defendant admitted stealing the purse and should be found guilty of the lesser-included crime of grand theft, but not robbery. Counsel argued there was no direct or circumstantial evidence that defendant used force. Defendant did not cause the victim to fall and sustain injuries; rather, she fell down because she was elderlyshe became startled and let go of the cart she had been holding onto for support, slipped and fell on the wet pavement.

2. Counsels Failure to Mount a Diminished Actuality Defense Was a Competent Tactical Decision.

Defendants second contention was that trial counsel should have tendered Dr. Sewanis and Dr. Assandris medical evaluations as proof that he suffered from a mental illness that prevented him from actually forming the specific intent to commit robbery. He asserts that defense counsels discovery violation barred him from presenting medical evidence of his impairment.

As a preliminary matter, the court retracted its evidentiary sanction barring defendant from tendering medical testimony of mental impairment. Thus, the trial court did not make such a ruling because defense counsel removed his expert witnesses from his witness list.

Next, there was no evidence that Dr. Sewanis and Dr. Assandris medical reports supported a theory that defendant suffered a mental defect which prevented him from forming the specific intent to rob the victim. As the People cogently noted, the two doctors conducted general section 1368 competency evaluations, and did not make any determinations regarding his actual ability to form the specific intent at the time he actually robbed the victim.^[7]

Dr. Assandri also assessed defendant to evaluate whether defendant was insane at the time of the crime. Dr. Assandri observed that while there was ample evidence that defendant was suffering from a severe mental disorder, there was no indication that the disorder was the motivating factor for the crime. It was Dr. Assandris opinion that defendants mental disorder did not make him incapable of knowing or understanding the nature and quality of his act and of distinguishing right from wrong. Dr. Assandri found that defendant was sane at the time of the offenses.

Dr. Assandris medical assessment was supported by defendants testimony. At the time defendant grabbed the purse, he knew it was wrong to take the victims property, and he stated that he took the purse because he wanted money, not because he was impaired. Defendant walked away from the store entrance and entered the parking lot when he saw a purse he could take. Defendant left the parking lot after grabbing the purse. He took a weapon with him so as to protect himself if someone fought back. These actions show cunning rather than delusional impairment.

Defendants claim that he acted bizarrely is not supported by the record. The officer and two of the witnesses who pursued defendant after the robbery never testified that defendant acted bizarrely. Defendants crying and being upset is not evidence of impairmentit is natural that many people experience emotional distress after being arrested. Defendants paranoia, panic, and fear are merely his own descriptions of his internal emotions caused by his alcohol consumption and the reality that people were chasing him.

Defendant did not provide any bizarre or delusional reasons for the crime after police arrested him. Defendants acts of (1) leaving the area when an alarm was sounded, and (2) throwing down the purse reflect a consciousness of guilt. A guilty conscience would not have been evident if defendant had suffered hallucinations or delusions that the victim made a gift of her purse or if he had believed that the purse belonged to him.

In his interviews with the doctors, defendant knew the bases of the charges filed against him. He felt depressed after his arrest, a natural consequence of being confined to a mental hospital. Defendants statement that he was not under the influence of drugs or alcohol at the time of the crime was contradicted by his trial testimony that he drank six to eight beers prior to the robbery as well as witness testimony that defendants person smelled of alcohol.

Dr. Assandri asked defendant to describe the details of the crime. At first, defendant professed not to have remembered the crime itself, only the events immediately before and after the incident. When Dr. Assandri confronted defendant with the details in the police report, defendant was able to remember and provide details of the crime. Dr. Assandri noted that defendants claim of total amnesia was unusual in that people with acute mental illness often had a better ability to remember events after being stabilized on medications, as defendant had been. Dr. Assandri found that defendant provided coherent, rational, and congruent answers to the officers questions during the police interview. Dr. Assandri opined that defendants motive for the crime was financial, rather than due to any delusional, psychotic-like motive or preoccupation.

Defendants contention that defense counsel should have tendered a diminished actuality defense is unsound. Defendant must meet two prongs to establish inadequate legal representation: (1) he must show, under prevailing professional norms, his counsels performance was deficient because it fell below an objective standard of reasonableness, and (2) prejudice resulted from counsels act or omission. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692.) Prejudice will be found if there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (In re Sixto (1989) 48 Cal.3d 1247, 1257, citing Strickland v. Washington, at p. 694.) A defendant must also show that counsels act or omission was not attributable to a tactical decision which a reasonably competent, experienced criminal defense attorney would make. (People v. Gurule (2002) 28 Cal.4th 557, 611.)

We conclude that defense counsels decision to forego a mental defense was a reasonable tactical decision.

As the People aptly state, Dr. Assandris mental evaluation would have been problematic at trial had defense counsel sought to mount a diminished actuality defense. Immediately after the crime, defendant confessed to police that he stole the purse. However, during the doctors interview, defendant claimed an inability to remember the details of the crime. Defendant again reversed himself when he admitted on the stand that he took the victims purse. The prosecutor could have easily impeached any asserted claim at trial that defendant did not have the ability to form the specific intent to commit robbery with defendants own changing stories. As the People argue, defendants detailed trial testimony, police interview (wherein he confessed to the theft), and the videotape of the robbery would negate his amnesia claim, and cast great doubt on the rest of his statements in the other psychological reports.

Defense counsel could properly forgo a mental impairment defense in order to preserve defendants credibility. The People correctly posit that defense counsel was hemmed-in by defendants prior admissions of theft. The defense could not obtain additional medical reports to affirm defendant suffered from delusions at the time of the crime; therefore, defendant was at risk of being impeached by the prosecution if he then claimed to have heard voices or experienced hallucinations. Moreover, defendants amnesia would have rendered it impossible for Dr. Assandri to offer any expert opinion on defendants ability to form specific intent at the time defendant committed the robbery.

Consequently, we conclude defense counsel did not render ineffective assistance in failing to mount a diminished actuality defense.

B. A Hung Verdict on the Elder Abuse Charge Does Not Vitiate a True Finding on the Elderly Victim Enhancements.

The jury found true the two enhancements alleged with the robbery countthat defendant committed a crime against someone who was 65 years of age or older ( 667.9, subd. (a)), and that defendant personally inflicted great bodily injury on a person 70 years of age or older. ( 12022.7, subd. (c).)

The jury deadlocked on the elder abuse charge. The elements of elder abuse are: (1) defendant willfully inflicted unjustifiable physical pain or mental suffering, (2) inflicted suffering under circumstances or conditions likely to produce great bodily harm or death, (3) the victim was at least 65 years of age, and (4) defendant acted, knew, or reasonably should have known the victim was at least 65 years of age.

Paraphrasing defendants contention, he states that when the elements of elder abuse are compared to the two elderly victim enhancements, it becomes clear that the jurys inability to reach a verdict on [the elder abuse charge] or its lesser included offense negates as a matter of law the jurys ability to reach a finding of true on the enhancements . . . . However, defendant does not explain which elements of the elder abuse offense negated the elements of the elderly victim enhancements.

The People rejoin defendants argument by stating that the enhancements are not substantive crimes but instead are factual characteristics of a crime. Thus the crime of elder abuse cannot be compared with the elderly victim enhancements as they are apples and oranges. The People argue the two age-related enhancements do not contain a specific intent element,^[8]and are triggered by the factual circumstances that the victim was over 65 years of age and suffered great bodily injury.

We conclude the trial court properly imposed the two elderly victim enhancements because the jurys deadlock on the elder abuse charge does not nullify the jurys true finding on the enhancements.

It is true that the substantive crime of elder abuse shares some common elements with the two age-related enhancements. The substantive crime requires both great bodily injury and a victim over the age of 65. The section 12022.7, subdivision (c) enhancement requires great bodily injury and a victim 70 years of age. Section 667.9, subdivision (a) requires a victim at least 65 years of age. All three have a requirement in common that a victim be of a certain ageat least 65 or 70. The crime of elder abuse and the section 12022.7 enhancement requires bodily injury, that is, injury defined as significant or substantial. ( 368, subd. (b)(2), 12022.7, subd. (f).)

But the fact that the substantive crime of elder abuse shares common elements with the elderly victim enhancement does not inexorably lead to the conclusion that the jury deadlocked on the shared elements. In our view, there are two important distinctions.

The first is intent. As the People have pointed out, the substantive offense of elder abuse necessarily contains a mens rea, which in this case was one of general intent. By their nature, enhancements do not contain a mens rea element because they only prescribe enhanced punishment when crimes are committed under certain factual circumstances.

The second is the unjustifiable pain element. That element is contained in the elder abuse crime but not the elderly victim enhancement. We believe that difference created the results in this case.

Unjustifiable physical pain or mental suffering is defined as pain or suffering that is not reasonably necessary or is excessive under the circumstances. (CALCRIM No. 830, italics added; see also People v. Whitehurst (1992) 9 Cal.App.4th 1045, 1050.) The main thrust of the dispute in this case was whether defendant used force to inflict the significant and substantial injuries Sadie suffered; whether defendant inflicted excessive injuries or did Sadie suffer injuries that were reasonably foreseeable because of her advanced age.

The prosecution argued that defendant tugged on the purse so hard that he caused Sadie to fall to the ground. In contradistinction, defendant argued that Sadie was unsteadily holding onto the shopping cart for support and once startled by the purse snatching, lost her support and slipped on the wet pavement. During deliberations, the jury asked the court what prohibited act the prosecution had to prove for the elder abuse count. The court informed the jury that the prohibited act they had to decide upon was whether defendant willfully inflicted unjustifiable pain or mental suffering on Sadie. The jury could have easily deadlocked on whether Sadies injuries resulted from defendants actions or if her advanced age caused her to be unsteady, and led to the natural and probable consequences of suffering a knee fracture, a gashed hand, facial bruises, and loosened teeth.^[9]

The jury could also have deadlocked as to whether defendant inflicted unjustifiable (i.e. excessive) physical pain on Sadie. The prosecutions failure to prove unjustifiable pain beyond a reasonable doubt does not a fortiori lead to the conclusion that the jurys true findings that Sadie suffered great bodily injury and was over 65 or 70 years of age were negated. Thus, the trial court properly imposed a one-year prison term for the section 667.9, subdivision (a) age enhancement, and a five-year prison term for the section 12022.7, subdivision (c) great bodily injury enhancement.

C. The Legislature Intended That Defendant Receive Punishment For Both Enhancements.

Defendant alleges that the section 12022.7, subdivision (c) enhancement subsumed the section 667.9, subdivision (a) enhancement, and that section 654 bars multiple punishments for the single incident of purse snatching of one elderly victim. We disagree.

When section 667.9 was added to the Penal Code, the Legislature wrote in the introductory language, It is the intent of the Legislature that the enhancements provided in Sections 12022.7 and 12022.8 shall be imposed in addition to any enhancement provided in Section 667.9 or 667.10. (Stats. 1985, ch. 1086, 1, p. 3638; italics added.) In his reply brief, defendant acknowledges the Peoples point that the Legislature stated its intent that both enhancements be imposed, but maintains that the intent is not reflected in the actual language of the statute. Defendant cites no authority for his implied proposition that if the intent is not actually stated in the statute, then the enhancements cannot be imposed. We remain unpersuaded by defendants rebuttal.

As it was the Legislatures intent that both enhancements could be imposed, we conclude that the trial court properly imposed both the one-year age enhancement and the five-year great bodily injury enhancement.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ MILLER

J.

We concur:

/s/ GAUT

Acting P.J.

/s/ KING

J.

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^[1] Throughout the record this object is referred to as a tire iron, a lug wrench, a tire wrench, an iron pipe, a black bar, etc. For ease of reference, the object will be referred to in this opinion as a tire iron.

^[2] All further statutory references will be to the Penal Code unless otherwise indicated.

^[3] [Defense Counsel:] . . . So where was your purse? [] [Sadie:] I think I was hanging on to it. [] [Defense Counsel:] Okay. Which hand? [] [Sadie:] Well, I only have two. It had to be one or the other.

^[4] Judicial Council of California Criminal Jury Instructions (2006-2007), CALCRIM No. 3428 provides: Mental Impairment: Defense to Specific Intent or Mental State[.] [] You have heard evidence that the defendant may have suffered from a mental (disease[,]/ [or] 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: [specific intent]. If the People have not met this burden, you must find the defendant not guilty of [robbery].

^[5] It is possible that defendant has a habeas corpus writ remedy available if Dr. Leonards testimony could describe an inability on defendants part to form the specific intent to steal at the time he took Sadies purse. However, that is doubtful in light of defendants own testimony that he intended to steal the purse and he knew it was wrong at the time he took it.

^[6] Defendant commonly used the term impulse to describe his feelings.

^[7] As there is no medical evidence that defendant suffered from a mental disorder that impaired his ability to form specific intent, his claim that the failure to give CALCRIM No. 3428 violated his federal due process right is without merit.

^[8] As is required to prove the crime of robbery.

^[9] There was conflicting evidence at trial as to whether Sadie temporarily lost consciousness.