Filed 8/11/16 P. v. Hardin CA5



                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068705
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF133303A)
                   v.
                                                                          ORDER DENYING PETITION
JEFFREY THOMAS HARDIN, JR.,                                                   FOR REHEARING;
                                                                         MODIFICATION OF OPINION
         Defendant and Appellant.                                        [NO CHANGE IN JUDGMENT]


         Respondent, The People of the State of California, filed a petition for rehearing on
July 28, 2016. We deny the petition for rehearing.
         The unpublished opinion filed herein on July 15, 2016, is modified in the
following particulars. (The page numbers referenced in this order are based on the
pagination in the slip copy of the original opinion filed in the clerks’ office, a copy of
which is attached to this order for reference.)
         1.        Page 3: Delete the second sentence of the first paragraph under the heading
entitled “Guilt phase.”
         2.        Page 20: Delete second sentence of the first paragraph under the heading
“Prosecutorial error in the guilt phase.”
         3.        Page 35: Delete the fourth sentence in the second paragraph under the
heading “Defense’s closing and prosecutor’s rebuttal arguments” beginning with
“Defense counsel then stated .…”
       4.     Page 42: Modify the first sentence of the first paragraph under the heading
entitled, “Analysis,” to read as follows: “Here, the defense adopted the theory of
diminished actuality to argue that Hardin was not guilty of first-degree murder.”
       5.     Page 47: Before the first full paragraph, currently beginning with “Since it
is reasonably probable the outcome of the proceeding would have been more favorable,”
add a new paragraph as follows:
       The error was prejudicial with respect to second-degree murder as well. There is a
reasonable probability that, absent the prosecutor’s mischaracterization of the
diminished-actuality defense, the jury would have found Hardin acted without malice.
Defense counsel’s failure to argue the point does not preclude this probability.
       6.     Page 47: Add footnote No. 20, at the end of the new paragraph stated in
No. 5, above, as follows:
              20
                The People request rehearing in this matter arguing that the
       prosecutor’s error did not impact the second-degree murder finding
       necessarily included in the jury’s determination that Hardin was guilty of
       first-degree murder. We reject this argument. The diminished-actuality
       defense encompasses all the mental states applicable to first- and second-
       degree murder, and the prosecutor’s mischaracterization of this defense
       affected the jury’s consideration of all the mental states incorporated in its
       verdict.

               The People contend the defense impliedly conceded Hardin was
       guilty of second-degree murder at trial, therefore, the prosecutor’s error was
       harmless as to a jury finding of second-degree murder. However, our
       consideration of the prejudicial effect of the prosecutor’s error is not limited
       in the way the People contend. Here, the jury was instructed pursuant to
       CALCRIM No. 3428 that it could consider evidence of “mental disease,
       defect or disorder” for the “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 jury was further instructed under CALCRIM
       No. 3428, that “[t]he People have the burden of proving beyond a
       reasonable doubt that the defendant acted with the required intent or mental
       state, specifically express malice aforethought and premeditation and
       deliberation for first degree murder or malice aforethought, either express
       or implied, for the lesser crime of second degree murder. If the People

                                              2.
      have not met this burden, you must find the defendant not guilty of the
      charged crime or the lesser included offense based on your finding.” We
      cannot say that the prosecutor’s improper characterization of the scope of
      CALCRIM No. 3428 was harmless in terms of the jury’s consideration of
      the elements of second-degree murder that were necessarily included in its
      verdict.
      7.     Renumber all subsequent footnotes after the newly inserted footnote
No. 20.
      Except for the modifications set forth in this order, the opinion previously filed
remains unchanged.


                                                                                   Smith, J.

WE CONCUR:



 Gomes, Acting P.J.



 Peña, J.




                                            3.
Filed 7/15/16 P. v. Hardin CA5 (unmodified version)

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




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068705
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF133303A)
                   v.

JEFFREY THOMAS HARDIN, JR.,                                                              OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. John S. Somers,
Judge.
         Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Eric L. Christoffersen and Jennevee H. de Guzman, Deputy Attorneys General,
for Plaintiff and Respondent.
                                                        -ooOoo-
         In the guilt phase of a bifurcated trial, Jeffrey Thomas Hardin, Jr., was found
guilty of the first-degree murder of Michael Kabonic. In the subsequent insanity phase,
the jury rejected the contention that Hardin was not guilty by reason of insanity.
         Hardin raises three issues relating to the guilt phase, and three issues relating to
the insanity phase, of his trial. As to the guilt phase, Hardin raises claims of prosecutorial
misconduct and argues that the evidence was insufficient to sustain a finding of first-
degree murder. Regarding the insanity phase, Hardin contends (1) the trial court erred in
rejecting a defense request to reopen its case after initial closing arguments in order for
Hardin to testify; (2) the trial court’s special instruction defining one of the prongs of the
test for legal insanity constituted prejudicial error; and (3) the prosecutor committed
misconduct by incorrectly defining another prong of the same test.
       As to one of his claims of prosecutorial misconduct in the guilt phase, Hardin
argues the prosecution misstated the law on diminished actuality, which was the heart of
his defense. We agree with Hardin that the prosecutor erred in his representation of the
diminished-actuality defense and that the error was prejudicial. Accordingly, we reverse
Hardin’s conviction and remand the matter for a new trial. Finally, we note the evidence
in the record was sufficient to support a first-degree murder conviction; in light of our
resolution of Hardin’s claim of prosecutorial misconduct in relation to his diminished-
actuality defense, we need not address the other issues he has raised in this appeal.
                         FACTS AND PROCEDURAL HISTORY
       An information filed on February 4, 2013, charged Hardin with committing the
first-degree murder of Michael Kabonic on August 4, 2010.1 (Pen. Code,2 § 187,
subd. (a).) The information further alleged that Hardin personally used a knife to commit


       1The  initial complaint in the case was filed in August 2010. Thereafter, on
November 1, 2010, criminal proceedings were suspended to determine whether Hardin
was competent to stand trial. Dr. Thomas Middleton was appointed to evaluate Hardin’s
competency. On December 21, 2010, the court found Hardin incompetent to stand trial
and committed him to Patton State Hospital. The court found that Hardin was restored to
competence on August 25, 2011. However, on October 6, 2011, the court once again
found that Hardin was incompetent. On November 3, 2011, the court appointed Dr.
Sincoff to evaluate Hardin. Hardin was again committed to Patton State Hospital for
treatment and the restoration of competency. On January 8, 2013, the court found Hardin
to be competent, and criminal proceedings were reinstated.
       2Subsequent   statutory references are to the Penal Code unless otherwise specified.


                                              2.
the murder. (§ 12022, subd. (b)(1).) Hardin entered pleas of not guilty and not guilty by
reason of insanity to the count alleged in the information; he further denied the allegation
that he personally used a knife in the commission of the offense.
       The guilt phase of the trial began on November 6, 2013. The jury found Hardin
guilty of first-degree murder on November 14, 2013. The insanity phase commenced on
November 18, 2013. On November 21, 2013, the jury found that Hardin was not insane
at the time of the killing. The trial court sentenced Hardin to 25 years to life plus one
year in prison.
Guilt phase
       There was no dispute at trial that Hardin had killed Michael Kabonic with a knife.
Rather, the question for the jury was whether Hardin was guilty of murder in the first or
second degree. The prosecution argued that the jury should find Hardin guilty of first-
degree murder because Hardin acted with express malice aforethought and with
deliberation and premeditation. The defense presented a diminished-actuality defense
based on section 28, which is entitled “[e]vidence of mental disease, mental defect, or
mental disorder,”3 arguing that Hardin suffers from paranoid schizophrenia and, as a
result of its symptoms, did not actually deliberate and premeditate in killing Kabonic as
required for first-degree murder.
       The prosecution called two percipient witnesses who had personal knowledge of
the circumstances of the murder: Tamara Humes, Hardin’s aunt (the sister of Hardin’s
mother) and Douglas Jones (a friend of Humes’s). Humes testified that, in August 2010,

       3Section  28, states, in pertinent part, as follows: “Evidence of mental disease,
mental defect, or mental disorder shall not be admitted to show or negate the capacity to
form any mental state, including, but not limited to, purpose, intent, knowledge,
premeditation, deliberation, or malice aforethought, with which the accused committed
the act. Evidence of mental disease, mental defect, or mental disorder is admissible
solely on the issue of whether or not the accused actually formed a required specific
intent, premediated, deliberated, or harbored malice aforethought, when a specific intent
crime is charged.”


                                             3.
she lived in the Oildale area of Bakersfield with Kabonic, who had been her friend for 20
years. Hardin and Kabonic knew each other through Humes; there was no hostility
between them.
       At the time of the murder on August 4, 2010, Hardin had been staying with Humes
for three days, while he waited for a bed at Teen Challenge, an alcohol and drug
rehabilitation center. Hardin was headed to Teen Challenge for treatment of his
methamphetamine addiction. Hardin, who was 25 years old in 2010, had started using
methamphetamine sometime after high school.4 Humes did not see Hardin use drugs
during the time he stayed with her that August and did not believe he used drugs during
that period.
       On August 4, Humes, Jones, and Hardin spent the day together. Hardin had not
been “acting right that day.” He would “burst out in laugh[ter], start laughing like
somebody was there and there was no nobody there. He was just acting bizarre, just
really strange.” Humes did not question Hardin’s behavior because he acted oddly on
virtually a daily basis, often referencing a “network” that was “watching him.” Hardin
had been talking about the network since he was 17 years old.
       At approximately 5:30 p.m. on August 4, 2010, Humes started preparing a dinner
of tacos at her house for herself, Jones, and Hardin. Her housemate, Kabonic, came
home at 6:15 or 6:30 p.m.; he was tired from working in the oil fields all day and went to
bed shortly thereafter. Humes, Jones, and Hardin sat down to dinner. Hardin stood up
from the table and poured salsa on his tacos “from way up high,” making a mess. Humes
was upset and sent Hardin to his room, which was next to Kabonic’s room, to finish his
dinner. Hardin “just grabbed his plate and went to his room, walked down the hallway”
without a word.



       4Hardin   was born in 1985.


                                             4.
        About two or three minutes after Hardin left the table, Humes and Jones heard
Kabonic suddenly yell, “you’re fucking stabbing me.” Humes ran into Kabonic’s
bedroom and found Hardin sitting on top of Kabonic’s stomach. Noticing that Kabonic
was lying in blood, as well as blood stains on the walls of the room, Humes said, “no,
Jeffrey, no.” Hardin “just turned around and looked at [her], and that was it. He was not
there.” Humes was panicked and scared; she called for Jones and ran downstairs to call
911. In the hallway outside Kabonic’s room, she passed Jones, who was going into the
room.
        Jones testified that, as he stood in the doorway of Kabonic’s room, he saw Hardin,
who was sitting on Kabonic’s torso, “pulling [a] knife out of [Kabonic’s] neck” with both
hands. The knife “[l]ooked like a carving knife.” Jones continued, “[Hardin] looked up
at me and he gave me an evil look, and then he started crawling off of [Kabonic] like he
was coming after me” so “I ran.” Jones explained that he ran down the hallway in the
direction of the living room and banged into a wall where the “hallway makes a little jog
then goes into the living room like a little wall there. [¶] … [¶] … I turned around and I
hit my head. Then I heard something else hit the wall, and he had thrown the knife at me.
[¶] … [¶] … [The knife] hit the wall … [and fell] on the floor.”
        Humes was in the living room on the phone with the 911 dispatcher when Hardin
walked past her with blood on his hands. He said something to the effect of, “Aunt
Tammy, help me.” Hardin then drove away in Humes’s Dodge Ram pickup truck.
Kabonic was pronounced dead by emergency medical personnel at the scene. The
coroner testified that the cause of death was multiple stab wounds to the front of his
body.
        Humes’s pickup was found by law enforcement crashed into a guardrail at an
intersection in Rosedale in the early morning hours of August 5, 2010. A canine unit
located Hardin shortly thereafter in the front yard of a nearby residence; Hardin told the



                                             5.
officer, “I’m here,” when the dog approached the area. Hardin was arrested and taken to
the Kern County Sheriff’s Department for questioning.
       Hardin’s police interrogation
       Hardin was questioned by Sergeants Damon McMinn and Avery Simpson of the
Kern County Sheriff’s Department on August 5, 2010.5 The video of the entire
interrogation was played for the jury.
       Hardin told the officers he had thought of hurting people for years because he had
long been mentally tormented by a “network” of people but no one in his family, among
his mental health providers, or in law enforcement had ever taken the issue of the
network seriously, despite the deep anguish and anxiety it caused him. As to what the
network did, Hardin explained that it was “going to kill my family … and now … this
network is just playing like people are suffering … [and] people don’t need to suffer .…”
He also said, “People are like suffering in this network and I don’t know [if] it’s just a
joke or not but it’s driving me—it’s driving me batty because it’s playing like it’s my
family. And [they are] using my famil[y]’s voices and it might sound crazy but [they are]
acting like [they are] suffering and it’s fucking driving me insane.” He said he “hurt”
Kabonic “because of this suffering thing that they keep playing.”
       Regarding the day of the murder, Hardin said he took his dinner to his room but
“[did not] know if [he] took a bite of it or not .…” He took a knife from his bag (he had
taken the knife from his stepmother’s house about two weeks earlier) and “attacked
[Kabonic].” Hardin explained that Kabonic “was in bed he was just laying down on his
back,” and “I walked up there[,] I stabbed him and … I just hurt him. [¶] … [¶] I did.”
He did not have a quarrel with Kabonic and had not planned to kill him: “I did not plan
it … or two weeks ago … like I said it’s been … years coming on … it’s been years.”


       5InAugust 2010, when Kabonic was murdered, Sergeant McMinn was a detective
in the Homicide Unit of the Kern County Sheriff’s Office.


                                              6.
Hardin acknowledged Kabonic just happened to be in the wrong place at the wrong time.
Hardin said he should have hurt someone a long time ago because the network had driven
him crazy for so long.
       Hardin admitted he knew the stabbing would kill Kabonic and he knew it was
wrong. At the same time, Hardin did not think Kabonic would want to live with the
injuries Hardin had inflicted. Hardin also understood he would get into trouble and go to
jail for doing what he did and consequently he left the scene in his aunt’s truck.
Specifically he stated: “I broke the law … I hurt somebody … and then I took a truck
and then I left it and it’s a lot.” Hardin explained that, after he fled in the truck, he
wanted to turn himself in or get arrested, and so he intentionally crashed the truck, albeit
at a low rate of speed so he could jump out of it without injury before it crashed.
       Hardin stated in the interrogation that he had last used methamphetamine about 10
days before the murder. Sergeant McMinn also testified that Hardin did not appear to be
under the influence of methamphetamine at the time of the interview.
       Dr. Michael Musacco
       Michael Musacco, Ph.D., a psychologist, was retained and testified as an expert
for the defense. He evaluated Hardin in September 2010 to assess his competency to
stand trial and the applicability of a plea of not guilty by reason of insanity. Musacco
evaluated Hardin again in July 2013 to assess whether he was insane at the time of the
murder.
       Musacco diagnosed Hardin with severe paranoid schizophrenia, a chronic mental
illness. Regarding the degree of severity of Hardin’s schizophrenia, Musacco noted as
follows:

               “There’s people that I’ve … treated and people that I’ve worked
       with that have schizophrenia that have jobs and families. Their illness is
       fairly well controlled. [¶] Occasionally in a point of stress they might hear
       voices or things like that. They go back to the doctor, have the medications
       tweaked, doing better. That would be a mild form of schizophrenia. [¶]


                                               7.
       Severe schizophrenia would be the person even with medications and
       psychosocial support that are still real mixed up about reality. They’re still
       hearing voices, still delusional. [¶] The extent of Mr. Hardin’s mental
       illness, the severity, the details of his symptoms seem to be more on a
       severe end of things. It’s not a black and white thing. [¶] Mental
       illness[es] wax and wane over the course of time, but we have a fairly long
       history. He’s still a young man relatively—fairly long history of symptoms
       that have really affected the course of his life.”
       Musacco testified that, in evaluating Hardin, he noted “[v]ery prominent
delusional beliefs; inescapable, severe delusional beliefs that really affected the course of
[the] interview with him.” He further expounded on the nature of Hardin’s delusional
beliefs as follows:

       “Mr. Hardin believed and believes that there is—that he is the—he is the
       target of a network of individuals .… [¶] … [¶] … He shared with me that
       there was a network of persons, including drug dealers, the FBI, the police,
       perhaps family, that had done a variety of things to him, including targeted
       him. They placed a microchip in his brain that traveled around his body
       that kept track of him, that controlled him. [¶] He felt that he was being
       targeted for mental and emotional torture. There was nothing that he could
       do to escape it. [¶] At some point he felt that this network of people were
       targeting his family, they were going to harm his family. On other
       occasions he thought his family may have been part of this network of
       people. [¶] And this isn’t the kind of thing [where] I wonder if this is
       going on. This is I’m convinced this is going on, and, you know, very
       distressed by it. Felt the whole sum total of it was that he was being
       mentally and emotionally tortured and it was all orchestrated by this
       network of people.”
       Musacco also diagnosed Hardin with a polysubstance disorder in light of Hardin’s
dependence on alcohol and methamphetamine. Musacco opined that the use of these
substances exacerbated Hardin’s schizophrenia. Musacco testified that paranoid
schizophrenia can impair the ability to premeditate and deliberate because it profoundly
alters an affected person’s perception of reality and results in a disorganized and
confused thought process. He further testified that, “[a]t the same time[,] a person with
schizophrenia can make decisions that are based on reality and act on them without being
influenced by their mental illness.”


                                             8.
       On cross-examination, Musacco testified that “mental illness and substance abuse
commonly … co-exist .…” He confirmed that it can be difficult to confirm mental health
diagnoses in such a situation because of overlapping symptomology. He agreed that the
symptoms of schizophrenia were analogous to the symptoms of methamphetamine-
induced psychosis, which included “auditory hallucinations, delusional beliefs, [and]
impaired reality contact.”
       The prosecutor also discussed Hardin’s medical records with Musacco,
specifically a 2004 report by a Dr. Prather. Musacco agreed the report noted that
(1) Hardin started using methamphetamine at the age of 17; (2) the 2004 visit with Dr.
Prather, when Hardin was 19, represented the first time Hardin had seen a mental health
professional; and (3) Dr. Prather concluded he could not make a firm mental health
diagnosis because Hardin had only been “clean,” in terms of his methamphetamine use,
for less than a month.
       Musacco further acknowledged that in all the years since Hardin’s initial visit with
Dr. Prather, Hardin’s methamphetamine-use disorder, which was also severe, had not
been ruled out as the potential cause of his mental health problems, since doing so would
require Hardin to stay off the drug for a reasonable length of time. Indeed, Hardin
reported to Musacco that he had been “meth free” for only about a week prior to the
murder. Before that time, Hardin was using, intravenously, a “dime” or $10 worth of the
drug daily. Based on his review of Hardin’s medical history, Musacco nonetheless
concluded that “the vast majority of people have said [Hardin’s] got schizophrenia and a
drug use disorder.”
       Finally, Musacco stated that “[l]ots of people with a severe mental disorder
commit crimes that may not be related to their mental illness whatsoever. [¶] … [¶]
[These people] are criminally organized and oriented. So I may be mentally ill, but if I
go into the 7-11 and steal a six pack of beer because I don’t have money and I want beer,
my mental illness, that’s not—if I go in and tell the clerk that he’s an alien from another

                                             9.
country and I try to beat him up—different scenario there. [¶] So most of the time, even
people with mental illnesses, their crimes are committed out of criminality rather than
mental illness.”
Insanity phase
       The insanity phase opened with the defense calling Hardin’s mother, Lisa Hardin,
who was the only fact witness in this phase of the trial. Lisa Hardin testified that Hardin
was raised in the Rosedale area of Bakersfield. Hardin did “very well” in high school
and graduated, but had developed mental health problems in his senior year. Shortly after
high school, he slit both his wrists in a suicide attempt late at night, leading to a dual
diagnosis of “schizophrenic bipolar.” Thereafter, Hardin managed to start at Bakersfield
College and initially did well there, but he was on numerous medications and “it was
really hard to get him adjusted to those.” He began to exhibit eccentric behavior,
breaking mirrors in the house because he thought networks of people were behind them
and shutting off the electricity because he heard voices through the electrical outlets.
Hardin also became very resentful toward his mother because he believed she had placed
a microchip in his head to monitor him.
       Hardin continually talked about a network of people who were after him. He
became “just real fearful for his life [and his family’s] lives” because the network told
him it was going to kill them all. Over a 10-year period, Lisa Hardin repeatedly heard
Hardin pleading with the network, having conversations when no one was there. She
would hear “[a lot] of cursing, crying, pleading, requesting them to please stop, to leave
his family alone, that he wasn’t nobody important. He didn’t know why they were out to
get him or to get us.” Hardin called the police hundreds of times in this regard, “so many
times it’s unbelievable.” He also cut his wrists another three times. Hardin self-
medicated with methamphetamine and described bugs flying out of his head; his mental
illness “got more intense” with the drug abuse. In 2008, he damaged his mother’s house
and, consequently, was placed on felony probation and sent to a residential drug-

                                              10.
treatment facility. However, for about a year prior to the murder, he was living in his
own apartment, taking his medication, and going to school.
       Defense’s expert witnesses
              Dr. Thomas Middleton
       Thomas Middleton, Ph.D., a psychologist, testified for the defense. Middleton did
not evaluate Hardin’s sanity at the time of the murder but, rather, on three separate
occasions evaluated Hardin’s competency to stand trial: November 2010 (appointed by
the court); August 2011 (retained by the defense); and December 2012 (retained by the
defense). On all three occasions, Middleton diagnosed Hardin with paranoid
schizophrenia; he testified that Hardin’s schizophrenia was severe. In the 2012
evaluation, Middleton also diagnosed Hardin with amphetamine dependence and
polysubstance dependence in institutional remission, but his primary diagnosis was
paranoid schizophrenia. He explained the symptomology of schizophrenia as follows:

       “Typically it involves … a deterioration. So there has to be a baseline and
       then a drop off [in the teens or early 20’s], and then the individual can
       manifest a variety of psychotic symptoms such as hallucinations, visual
       abnormalities, auditory abnormalities, tactile abnormalities as well as
       delusional beliefs, so distorted thoughts regarding demons or planets or
       aliens or chips or whatever it happens to be. [¶] They may take the form of
       very bizarre symptoms such as chips or aliens or networks or they may just
       be a constellation of pervasive and severe lesser hallucinations and
       delusions.”
Middleton also noted that, during his initial evaluation, Hardin reflected “delusional
beliefs that there was a chip in his head, that there was a network that was monitoring his
functioning, and he reported a variety of psychotic symptoms.” Similarly, during his
August 2011 evaluation, Hardin “continued to be quite bizarre, delusional” and when
asked open-ended questions, “his responses became increasingly bizarre and rambling.”
Finally, Middleton noted, with regard to Dr. Prather’s 2004 report, that “Dr. Prather was
of the opinion that Mr. Hardin had a history of substance abuse, but the underlying



                                            11.
condition was a severe mental illness such as schizophrenia.” He also pointed out Dr.
Prather’s report noted that Hardin’s father had schizophrenia.
       Middleton testified that Hardin told him he “had used IV drugs, that he abused
alcohol and marijuana, and he had been doing so since he was 17 years old.” Middleton
further stated that long-term methamphetamine use can cause psychotic symptoms,
including hallucinations and hearing voices; similarly, methamphetamine withdrawal can
lead to delusions, hallucinations, and paranoia. Middleton concluded he did not attribute
Hardin’s mental health issues solely to drug abuse:

       “In my opinion it shows a clear pattern of psychosis.… [I]t’s taken two
       stays at Patton State Hospital, multiple psychotropic medications, two and a
       half to three years treatment in order to have him stabilized. [¶] He
       continues to have the underlying delusional belie[fs] about the chip and the
       network and so forth, but he’s able to tone it down on his current
       medications. [¶] The DSM-IV-TR, the diagnostic manual, indicates that a
       substance[-]induced psychosis typically lasts for a much shorter period of
       time. The fact that it’s taken three years for Mr. Hardin to stabilize in my
       opinion strongly supports that he has an underlying schizophrenia disorder
       and that this was clear evidence in 2004 when the psychiatrist evaluated
       him there when he had fairly brief exposure to substance abuse but he was
       experiencing bizarre delusions. [¶] It’s my experience that individuals
       abusing methamphetamine may have auditory hallucinations or paranoia in
       a general sense. They do not have specific voices. They do not have fixed
       delusional beliefs such as the network or a chip.”
              Dr. Ross Kremsdorf
       Ross Kremsdorf, Ph.D., a clinical psychologist, was appointed by the trial court
and evaluated Hardin in May 2013 to determine whether he met the criteria for entering a
plea of not guilty by reason of insanity. Dr. Kremsdorf diagnosed Hardin with
schizophrenia, paranoid type. Dr. Kremsdorf found significant Hardin’s “periodic
comments about his beliefs of the, quote, unquote, network and the perception that—of
being fearful of this—kind of hard to get a clear picture of what it was, this vague group
that was fearful to him and scary and was threatening to harm him and his family, and
that persisted. [¶] And I saw some of that in the records before, but when I read some


                                            12.
other records later that was always there, and in the police reports for that matter.” Dr.
Kremsdorf found Hardin’s consistent references to the network significant because
“[p]ersistent delusions is one of the major symptoms” of schizophrenia. Dr. Kremsdorf
found it noteworthy that, although Hardin seemed less agitated when discussing the
network with Dr. Kremsdorf than reflected in prior records, he still maintained a belief in
the existence of the network.
       Applying the California definition of legal insanity, Dr. Kremsdorf opined that
Hardin was legally insane at the time he murdered Kabonic. He explained the basis of
his opinion as follows:

       “[I]n my experience the gestalt, the whole situation, was compelling to me
       because it wasn’t a case where he did something that was for gain, let’s say
       a robbery or something. He wasn’t—and there was no apparent—all the—
       some of the witness statements that were made at the time in the police
       investigation, there was no apparent problem between him and the victim.
       There was no anger or major upset. [¶] It was just sudden and out of the
       blue and just got up from the table and went in there and did this terrible
       thing, but it seemed to have no logic to it at all, and he immediately
       afterwards mentioned the comments about his delusions, that this person
       was somehow connected with the network and he had—he just did that
       action. [¶] So those were the things that really stood out, his long term
       delusion that suddenly just made him act, which strongly implied to me that
       he didn’t understand the nature or quality of his actions at the time and he
       didn’t necessarily think it was wrong because he had to defend himself.”
       As to whether a mental disease or defect was the cause of Hardin’s insanity,
Kremsdorf stated that Hardin’s psychiatric records also indicated that Hardin had a
“severe and ongoing mental illness.” Kremsdorf specifically referenced Dr. Prather’s
2004 report, noting: “There was some discussion about if substance abuse was the cause
or not and the historical beginnings or causation of these things, but I think that in one of
the reports, one of the earliest reports, that person was also struggling with trying to sort
those two things out but felt that there probably was an underlying mental illness. This
was the report by Dr. Prather.”



                                             13.
       Dr. Kremsdorf also noted that, although Hardin’s statements to the police appear
to indicate that Hardin knew he was stabbing Kabonic and that it was wrong to do so, it
was possible that at the moment Hardin committed the murder he did not know what he
was doing and/or that it was wrong but, immediately afterward, realized he had hurt or
killed Kabonic by stabbing him and had done something that was clearly wrong. In other
words, Hardin’s statements to the police may not reflect what Hardin actually knew or
understood at the moment he committed the murder.6 Thus, “[i]t could be that he—
immediately after he did his action he could observe it, you know, that—what he just did
without actually being aware [at the time of the action].” Similarly, “at the moment of
the action,” Hardin may have thought “he was defending something, himself, not sure
who [from the network] and that means that at that moment he might have felt that it was
not wrong .…”7 Indeed, Kremsdorf concluded, “it didn’t make any sense any other
way .…” On the other hand, Kremsdorf acknowledged, under cross-examination, that
there was no evidence Hardin thought he was doing something other than stabbing
Kabonic at the time he committed the murder, so it would be “highly speculative” to
suggest Hardin was thinking something other than what was reflected in his statements to
the police. Kremsdorf also testified that he understood the knowing-the-nature-and-
quality-of-the-act prong of the insanity definition to include a motive component.
       Finally, Kremsdorf testified that simply suffering from schizophrenia or a mental
illness by itself did not render a person legally insane; the person in question would still
have to satisfy the criteria of the applicable legal standard for insanity.




       6Kremsdorf   observed that, during the police questioning, Hardin “sometimes …
sound[ed] rational, other times he didn’t,” which was not unusual for the mentally ill.
       7Kremsdorf    noted that Hardin claimed in his police statement that the network had
something do with why Hardin attacked Kabonic. He also noted that Hardin told the
police “he just felt he had to defend himself in effect.”


                                              14.
              Dr. Michael Musacco
       Dr. Musacco first evaluated Hardin in September 2010 to assess his competency to
stand trial and the applicability of a plea of not guilty by reason of insanity. He also
reviewed a range of prior psychiatric and psychological records and police reports and
spoke to Hardin’s mother. Regarding his assessment, Musacco testified as follows:

       “[Hardin’s] mental functioning at that time was exceedingly impaired.
       He—his sense of what was real and what wasn’t real was very—well, he
       had very poor reality contact. [¶] He believed that there … were people in
       the drug world and people in the FBI and other organizations that were
       setting out to torture him mentally or harm him or hurt his family members.
       [¶] He was hearing voices. His mood was very labile, meaning his—he
       could go from very sad and upset to happy, to normal. So his sense of
       reality was substantially and obviously impaired. [¶] His perceptions,
       hearing things that weren’t there, was impaired. [¶] His insight, in other
       words his understanding that these are symptoms of a mental disorder that
       I’m suffering versus this is reality, that was completely impaired, because
       in his mind the reality did revolve around this network that had been
       essentially torturing him so, again, extreme disconnection with reality, a
       lack of appreciation for the fact that his mental illness was responsible for
       that. His thoughts and his mood was substantially influenced by those
       symptoms. [¶] … [¶] … [T]here was no evidence of malingering at that
       time.”
Musacco concluded that on August 5, 2010, when Hardin killed Kabonic, he “met criteria
for a finding that he was not guilty by reason of insanity.” Musacco explained his
reasoning as follows:

       “Well, [Hardin] suffers from a mental disease or defect that impaired his
       reality contact and his—his perceptions to a significant degree. His
       understanding of reality was completely at odds with the world as most
       people would see it. As a result of that he felt he was being tortured by this
       network, and he was at his wits end. He didn’t know what to do. [¶] He,
       without any particular reason, chose this person who he had no problem
       with and seriously assaulted him resulting in that person’s death, and the
       alternative hypothesis that this was a criminally motivated behavior or a
       product of intoxication. There is no evidence of alternative explanations,
       and instead all of the data we have puts together this picture that this person



                                             15.
       has a severe mental illness that caused him to be unable to appreciate the
       quality of his actions at the time that the offense occurred.”
       Musacco explained that the mental illness at issue was schizophrenia, paranoid
type, and that Hardin was unable to appreciate the nature and quality of his actions
because of that mental illness.
       Musacco again evaluated Hardin in July 2013, after Hardin had spent a
considerable period at Patton State Hospital. Musacco testified that he had additional
records from the state hospital to review, which provided a more complete picture of
Hardin’s mental functioning over several months. He stated, “I did my usual interview
and the malingering test and everything came out that malingering isn’t an issue in this
case.” Although Hardin still had paranoid schizophrenia and continued to manifest his
concern with the network, Musacco said that, “consistent with the records I reviewed
there had been a substantial improvement. He wasn’t so obsessed with these topics of the
network or people being out to get him.” The improvement “would be expected.
[Hardin] had been restored to trial competency so you would expect that the symptoms
would be less prominent or more controlled than they had been before or maybe even
complete remission for that matter.” After this second evaluation, Musacco again found
that Hardin met the criteria for being legally insane when he killed Kabonic.
       Regarding Hardin’s statement to the police, Musacco testified as follows:

       “[The police statement was] [s]ignificant insofar as it contained data that
       has been pretty well consistent throughout the records that Mr. Hardin’s
       mental state was, and his emotional functioning was, significantly impaired.
       Again, this is not mild or moderate. This is severe. [¶] His sense of what
       is happening in the world was completely upside down, and when you look
       at what he said to the police and the investigating officers it provides pretty
       strong evidence which led all the doctors to kind of reach that same
       conclusion in terms of his ability to appreciate the quality of his actions.
       He was not—not all there or even close to it at the time of the offense.”
       On cross-examination, Musacco testified that he understood the quality-and-
nature-of-the-act prong of the insanity test to incorporate a motive component, whereby


                                            16.
the lack of a rational motive for the act (as in Hardin’s case) would suggest that Hardin
did not know the nature or the quality of his actions. Nonetheless, when the prosecutor
asked whether Hardin knew “he was knifing a guy” and “physically doing an act that
caused death,” Musacco responded as follows: “I think based on what [Hardin] said at
the time he was arrested … he knew that [his act] was wrong and he knew the person was
seriously injured and maybe not alive.” Musacco repeated that conclusion, stating: “I
think that [Hardin] knew he was stabbing a human being, and I think that pretty quickly
upon doing that he realized that the victim might die as a result of that.” Indeed,
Musacco acknowledged that Hardin would not “fit” the definition of insanity if knowing
the nature and quality of the act as used in the definition meant whether Hardin knew he
was knifing Kabonic to death at the time he was doing so. Similarly, regarding the
knowing-that-the-actions-were-wrong prong of the insanity test, Musacco testified that
Hardin’s police statement revealed that Hardin knew the difference between right and
wrong at the time he committed the murder: “[Hardin] clearly said that what he did was
wrong immediately when it happened.” Musacco further testified that the police
interview was “key to this case” because the interview makes clear that “[Hardin] knew
[his action] was wrong” and that “he was going to get into get in trouble” for it.
       People’s Expert Witness
              Dr. Lauren Thomas
       Lauren Thomas, Ph.D., a clinical and forensic psychologist, testified as an expert
witness for the People. Thomas was appointed by the court to evaluate Hardin to
determine whether he was legally insane when he killed Kabonic. Thomas met with
Hardin in April 2013 and determined he displayed no signs of being mentally ill or
delusional. She testified that “[h]is thought process was clear and organized,” “[t]here
was no evidence of any kind of thought disturbance[,]” and “[h]e wasn’t endorsing any
psychiatric symptoms .…”



                                            17.
       Thomas testified that Hardin’s presentation and answers to her questions
suggested he was not a candidate for a diagnosis of schizophrenia. Thomas diagnosed
Hardin with “[s]ubstance-induced psychotic disorder that was resolved.” She explained
that, “now that time has passed, this disorder doesn’t exist. Meaning there is no mental
defect or mental disorder with the exception of methamphetamine abuse.”
       Thomas opined that Hardin did not meet the legal standard for insanity for the
following reasons: “[I]t’s my professional judgment that [Hardin] does not have a mental
defect or mental disorder. His meth substance abuse is what was creating these
symptoms that have now cleared up; so that’s one thing. [¶] … [¶] … The second one is
he understood right from wrong at the time of the offense.” Thomas explained that
“[Hardin] fled the scene after he committed the offense, which indicates he knew that
there was something wrong with what he did, and that when the police picked him up
about four and a half hours, I believe, after the offense, he indicated he broke the law, he
hurt somebody, and took the truck. [¶] When he was asked if he knew what he did was
wrong, he said, yes, he did know it was wrong and bad. When asked if he thought he was
going to be arrested for it, he said, yes. So those things are relevant in terms of whether
he knew right from wrong at the time of the offense.” Finally, Thomas explained that
“[Hardin] understood he was killing someone. He understood the nature of that. He
stated he hoped [Kabonic] would die because he stabbed him in the eye and he didn’t
think he would want to live that way. That’s understanding the nature of what you’re
doing.”
       Thomas admitted on cross-examination that she had reached a contrary conclusion
in her written report of Hardin’s evaluation. Specifically, in her written report, Thomas
had opined that Hardin did not have the ability to appreciate and understand the quality of
his actions at the time of the offense. However, her opinion changed when she “focused
more on the fact that he didn’t even have a mental defect or mental disorder, that it was



                                             18.
the methamphetamine abuse that was a factor in the commission of the crime.”8 She
clarified that “I’m now saying that with further information I believe that he does meet
that—does not meet the standard of under—he understands the nature and quality of his
act. [¶] At that time I was stating because of the methamphetamine abuse and the fact
that he was cognitively impaired with the network and everything that he didn’t. But I
now, upon having further knowledge and specific examples, have changed my
perspective, yes.”9
       Other witnesses
       The People called Jay Winn, an investigator for the Kern County District
Attorney’s Office, who had interviewed Lisa Hardin on October 6, 2010. Lisa Hardin
told Winn that Hardin’s mental health issues began after he was involved in an ATV
accident at the age of 17. She also told him that Hardin began using methamphetamine
around the same time.
       The People also called Ana Ovando, an investigator for the Kern County Public
Defender’s Office, who had interviewed Lisa Hardin on August 20, 2013. Lisa Hardin
told Ovando that Hardin began to self-medicate with drugs shortly after being diagnosed
with a mental illness, and, as a result, his mental illness was exacerbated.
       The defense called Pam Singh, an attorney with the Kern County Public
Defender’s Office, as a rebuttal witness. Ms. Singh had represented Hardin at the
preliminary-hearing stage in two unrelated criminal matters. Singh had concerns about


       8Thomas   appears to be drawing a distinction between organic mental disorders
and drug-induced disorders for purposes of the insanity defense. As discussed below, in
the insanity phase, such a distinction is significant for reasons that do not apply in the
guilt phase. (See §§ 28, subds. (a) & (b), 29.8.)
       9Thomas    offered two examples of a person who did not understand the nature and
quality of his actions: (1) “[i]f someone cut a woman’s throat thinking they were slicing
into a loaf of bread” and (2) “[i]f someone cut off a man’s head thinking it would be fun
watching him wake up in the morning looking for his head .…”


                                             19.
Hardin’s competency and mental health status, which she discussed with the district
attorney on those cases. Based on her concerns, she sought plea deals for Hardin, one of
which required him to obtain treatment at a “dual diagnosis” residential treatment facility.
                                      DISCUSSION
I.     Prosecutorial error in the guilt phase
       Hardin was charged with first-degree murder. Although he pleaded not guilty to
the charge, he conceded he was guilty of the lesser-included offense of second-degree
murder in the guilt phase of the trial. The defense strategy was to defeat the first-degree
murder charge. The defense sought to accomplish this by relying on the diminished-
actuality defense because Harden had long suffered from delusions, hallucinations, and
other psychotic symptoms that led to a jumbled thought process and a distorted sense of
reality. Hardin’s specific theory of defense was that his delusions and other psychotic
symptoms prevented him from actually deliberating and premeditating in committing
Kabonic’s murder.
       Hardin now argues the prosecutor committed misconduct in his rebuttal to the
defense’s argument. More specifically, he contends the prosecutor mischaracterized the
scope of the diminished-actuality defense as set forth in CALCRIM No. 3428 (which was
given to the jury) by connecting Hardin’s psychotic symptoms to his substance-abuse
disorder rather than his paranoid schizophrenia, and insinuating, incorrectly, that drug-
related mental disorders, unlike organic mental diseases, could not be the basis of this
defense.
       The People respond that the prosecutor did not draw an unwarranted distinction
between drug-induced and organic mental disorders so as to eviscerate Hardin’s
diminished-actuality defense, but rather argued that evidence of both types of disorders
was not probative of Hardin’s mental state in contrast to more applicable evidence such
as Hardin’s statement to the police and his actions in committing the murder. The People
further argue that, even if the prosecutor’s argument was improper, the error was

                                            20.
harmless in light of evidence demonstrating that Hardin had the requisite mental state for
first-degree murder.
       We agree with Hardin that the prosecutor’s rebuttal was improper to the extent he
questioned whether Hardin’s psychotic symptoms were caused by schizophrenia or,
rather, a substance-abuse disorder, because the implication of such an argument is that
the distinction makes a difference for purposes of the diminished-actuality defense when
the law states to the contrary. Under the law, the jury was free to consider the effect of
Hardin’s psychotic symptoms on his mental state regardless of whether the source of the
symptoms was his diagnosed schizophrenia, his diagnosed substance-induced disorder, or
both. By implying that drug-induced disorders were outside the purview of the
diminished-actuality defense, the prosecutor mischaracterized the law. Moreover, since
there is a reasonable probability the outcome of the proceeding would have been more
favorable to Hardin absent the prosecutor’s error, the error is prejudicial. Accordingly,
we reverse Hardin’s conviction and remand the matter for a new trial.
       A.     Diminished-actuality defense and relevant jury instructions
       The diminished-actuality defense is premised on section 28. Section 28 abolished
the defense of diminished capacity, which addressed a defendant’s “‘general capacity or
ability to form a specific intent or harbor a mental element of an offense.’” (People v.
Reyes (1997) 52 Cal.App.4th 975, 982, quoting People v. Visciotti (1992) 2 Cal.4th 1, 56;
see also People v. Steele (2002) 27 Cal.4th 1230, 1253 [“‘The essence of a showing of
diminished capacity is a “showing that the defendant’s mental capacity was reduced by
mental illness, mental defect or intoxication”’”]; People v. Saille (1991) 54 Cal.3d 1103,
1111-1112; § 28, subd. (b); § 25, subd. (a); § 29.4, subd. (a).) As a result of the
abolishment, evidence of mental disorder may no longer be used as an affirmative
defense to a crime. (Reyes, supra, at p. 982.) However, pursuant to section 28,
subdivision (a), evidence of a mental disorder is admissible to raise a doubt as to whether



                                             21.
a defendant actually formed a mental state that is an element of a charged offense.10
(Reyes, supra, at p. 982; People v. Coddington (2000) 23 Cal.4th 529, 582-583, overruled
on other grounds by Price v. Superior Court (2001) 25 Cal.4th 1046.) In other words,
section 28 permits a defendant to offer evidence of “diminished actuality,” i.e., that “a
mental disease, mental defect, or mental disorder,” including a mental disorder caused by
drug intoxication, could prevent actual formation of the requisite mental state. (§ 28,
subd. (a); see also People v. Cortes (2011) 192 Cal.App.4th 873, 908; People v.
Coddington, supra, at pp. 582-583.) An expert may testify regarding a defendant’s
mental condition(s) so long as the expert gives no opinion on the ultimate question of
whether or not that defendant actually had the requisite mental state.11
       Section 28, by its express terms, applies only to the guilt phase of a bifurcated
trial. (See § 28, subd. (c).) In the insanity phase, evidence of a mental disorder caused
by drug intoxication is subject to the limitation set forth in section 29.8,12 which provides

       10Section  28 provides as follows: “(a) Evidence of mental disease, mental defect,
or mental disorder shall not be admitted to show or negate the capacity to form any
mental state, including, but not limited to, purpose, intent, knowledge, premeditation,
deliberation, or malice aforethought, with which the accused committed the act.
Evidence of mental disease, mental defect, or mental disorder is admissible solely on the
issue of whether or not the accused actually formed a required specific intent,
premeditated, deliberated, or harbored malice aforethought, when a specific intent crime
is charged. [¶] (b) As a matter of public policy there shall be no defense of diminished
capacity, diminished responsibility, or irresistible impulse in a criminal action or juvenile
adjudication hearing. [¶] (c) This section shall not be applicable to an insanity hearing
pursuant to Section 1026. [¶] (d) Nothing in this section shall limit a court’s discretion,
pursuant to the Evidence Code, to exclude psychiatric or psychological evidence on
whether the accused had a mental disease, mental defect, or mental disorder at the time of
the alleged offense.”
       11“In the guilt phase of a criminal action, any expert testifying about a defendant’s
mental illness, mental disorder, or mental defect shall not testify as to whether the
defendant had or did not have the required mental states .… The question as to whether
the defendant had or did not have the required mental states shall be decided by the trier
of fact.” (§ 29.)
       12Section   29.8 was previously numbered as section 25.5.


                                             22.
that the insanity defense “shall not be found by the trier of fact solely on the basis of …
an addiction to, or abuse of, intoxicating substances.” (§ 29.8, italics added; see also
People v. Robinson (1999) 72 Cal.App.4th 421, 427 [§ 29.8 “erects an absolute bar”
prohibiting use of voluntary ingestion of intoxicants—as well as brain damage and
mental disorders solely caused by such substance abuse—as sole basis of insanity
defense]; People v. Cabonce (2009) 169 Cal.App.4th 1421, 1434 & fn. 5.)
       No such limitation applies in the guilt phase, in which evidence of voluntary
intoxication and related mental disorders are admissible, pursuant to sections 28 and
29.4,13 to show that a defendant actually lacked the requisite mental state, including,
when the charged offense is first-degree murder as here, that the defendant did not
deliberate and premeditate. (See, e.g., People v. Ervin (2000) 22 Cal.4th 48, 89-91
[discussing CALJIC No. 3.32, predecessor to CALCRIM No. 3428, and indicating that
evidence of defendant’s “substance use disorder” caused by his past heavy cocaine and
heroin use warranted jury instruction on diminished actuality upon defense request];
People v. Aguilar (1990) 218 Cal.App.3d 1556, 1561, 1569, disapproved on other
grounds by Ervin, supra, at p. 91 [given expert testimony that defendant suffered from
paranoid personality traits that could have been caused or exacerbated by defendant’s
cocaine use and were relevant to issue of whether he formed requisite mental state, trial
court erred in not instructing on diminished actuality]; People v. Cox (1990) 221
Cal.App.3d 980, 987-989, 991 [instruction on diminished actuality proper when
defendant suffered from psychosis that was likely caused by his drug use]; People v.
Saille, supra, 54 Cal.3d at pp. 1116-1117 [when crime requires particular mental state,

       13Section  29.4, subds. (b) and (c), provide as follows: “(b) Evidence of voluntary
intoxication is admissible solely on the issue of whether or not the defendant actually
formed a required specific intent, or, when charged with murder, whether the defendant
premeditated, deliberated, or harbored express malice aforethought. [¶] (c) Voluntary
intoxication includes the voluntary ingestion, injection, or taking by any other means of
any intoxicating liquor, drug, or other substance.”


                                             23.
defendant must have opportunity to prove he did not possess that state].) Therefore, in
the guilt phase, the jury is “free to consider both the long-term and immediate effects of
substance abuse on defendant’s formation of the requisite mental state.” (Ervin, supra, at
p. 91.) In sum, in the guilt phase, evidence of both organic and substance-induced mental
disorders can be exculpatory pursuant to a diminished-actuality theory, a point the People
do not dispute. (§ 28.)
       As stated above, Hardin was charged with first-degree murder and presented
evidence that he suffered from paranoid schizophrenia and a substance-induced mental
disorder that caused him to have delusions, hallucinations, and other psychotic
symptoms. His theory of defense was that his psychotic symptoms prevented him from
acting with deliberation and premeditation in killing Kabonic. Accordingly, the judge
instructed the jury with CALCRIM No. 521, which delineates and defines the mental
state required for first-degree murder, including the elements of deliberation and
premeditation, and CALCRIM No. 3428,14 which addresses the diminished-actuality
defense. The jury was instructed with CALCRIM No. 521 as follows:

               “The defendant is guilty of first degree murder if the People have
       proved that he acted willfully, deliberately, and with premeditation. [¶]
       The defendant acted willfully if he intended to kill. [¶] The defendant
       acted deliberately if he carefully weighed the considerations for and against
       his choice and, knowing the consequences, decided to kill. [¶] The
       defendant acted with premeditation if he decided to kill before completing
       the act that caused death.

               “The length of time the person spends considering whether to kill
       does not alone determine whether the killing is deliberate and premeditated.
       The amount of time required for deliberation and premeditation may vary
       from person to person and according to the circumstances. [¶] A decision
       to kill made rashly, impulsively or without careful consideration is not
       deliberate and premeditated. On the other hand, a cold, calculated decision


       14CALCRIM    No. 3428 is entitled “Mental Impairment: Defense to Specific intent
or Mental State (Pen. Code, § 28).”


                                            24.
       to kill can be reached quickly. The test is the extent of the reflection, not
       the length of time.

               “The People have the burden of proving beyond a reasonable doubt
       that the killing was first degree murder rather than a lesser crime. If the
       People have not met this burden you must find the defendant not guilty of
       first degree murder and the murder is second degree.”
Thereafter, the jury was instructed with CALCRIM No. 3428, as follows:

              “You have heard that the defendant may have suffered from mental
       disease, defect or disorder. You may consider this evidence only for the
       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
       express malice aforethought and premeditation and deliberation for first
       degree murder or malice aforethought, either express or implied, for the
       lesser crime of second degree murder. If the People have not met this
       burden, you must find the defendant not guilty of the charged crime or the
       lesser included offense based on your finding.”
The instruction did not define the terms “mental disease, defect or disorder” as used
therein; nor was the jury instructed as to the definition of these terms in any other
instruction.
       B.      Testimony of Dr. Michael Musacco, the defense expert in the guilt phase
       Dr. Michael Musacco, a psychologist called by the defense in the guilt phase,
testified on direct examination as follows: “My opinions are that Mr. Hardin suffers from
pretty serious mental illness that has, I would say, substantial impact on his reality
contact, his ability to know what’s truly going on around him. It affects his mood, his
perceptions of reality, his behaviors. [¶] The mental illness is chronic. It’s been going
on for a long time. It’s had a significant impact on his functioning to the extent that he
has been found to be disabled. He’s been in and out of the legal system. His
relationships have been affected.” Dr. Musacco diagnosed Hardin’s mental illness as
severe schizophrenia, paranoid type, and added, “I also found that he suffers from



                                             25.
substance use disorder particularly associated with methamphetamine and alcohol. His
use of those drugs exacerbates or worsens his mental disorder. [¶] It’s not uncommon, in
fact it’s common, for persons with a major mental illness to suffer from a co-existing
substance use disorder, and I found that to be the case in Mr. Hardin’s situation.”
       Musacco described the symptoms of schizophrenia as including an impaired
ability to communicate; disorganized thoughts and speech; auditory hallucinations and
hearing voices other people cannot hear; tactile hallucinations” or “feel[ing] things that
aren’t there”; “[s]omatic types of hallucinations, i.e., “things that are going on inside [the]
body”; and delusional beliefs. Musacco concluded that “in general [schizophrenia] tends
to be a lifelong illness, and clinically what we see with [Hardin], that seems to fit the
pattern.”
       Musacco then described Hardin’s specific symptoms, including “[v]ery prominent
delusional beliefs; inescapable, severe delusional beliefs that really affected the course of
my interview with him.” Musacco noted that the network was a very real phenomenon
for Hardin, subjecting him to ongoing mental and emotional torture.
       Musacco testified that he understood the legal definitions of the terms
“deliberate[d]” and “premeditated” as set forth in CALCRIM No. 521.15 He further
testified that paranoid schizophrenia could “[a]bsolutely” affect the ability to act with
deliberation and premeditation because it “profoundly” impacts “thought processes” and
“perceptions of reality,” resulting in “confused and disorganized” thoughts and
“perverted” perceptions such that “a person’s entire sense of reality is upside down.” He
stated that impulsivity can also be associated with paranoid schizophrenia but that usually
the impulsivity emanated from the person’s misapprehension of reality.


       15The   jury was instructed with CALCRIM No. 521, which states that “[t]he
defendant is guilty of first degree murder if the People have proved that [he] acted
willfully, deliberately, and with premeditation,” and defines the terms “willfully,”
“deliberately” and “with premeditation.”


                                             26.
          Musacco further testified that, “I think it’s pretty well accepted now the vast
majority of persons with mental illness also have or have had some form of substance
abuse disorder that co-exists with their mental disorder. You can’t just treat one and
successfully treat the condition. You’ve got to treat both, the substance abuse disorder
and the mental illness.”
          The prosecutor then cross-examined Musacco, shifting the focus to Hardin’s
methamphetamine use. The prosecutor’s line of questioning reveals he sought to show
that Hardin’s delusional beliefs, hallucinations, and other psychotic symptoms stemmed
from a substance-abuse disorder caused by his methamphetamine addiction rather than
from paranoid schizophrenia, and, indeed, that Hardin may not suffer from schizophrenia
at all.
          With his opening questions, the prosecutor established that, although Musacco
addressed the symptomology of schizophrenia on direct examination, he had also
specifically diagnosed Hardin with a polysubstance-abuse disorder based on Hardin’s
abuse of alcohol and methamphetamine. The prosecutor continued to focus on Hardin’s
substance-abuse disorder throughout his cross-examination, as follows:

          “Q [by the prosecutor]. [Y]ou are familiar with what certain substances,
          specifically drugs, do to people who abuse them?

          “A [by Musacco]. Yes.

          “Q. Okay. And would it be fair to say that a long term methamphetamine
          abuse also produces the same kind of symptomology that schizophrenia
          shows?

          “A. They can—the symptoms of somebody with methamphetamine—a
          person using a lot of meth can show auditory hallucinations, delusional
          beliefs, impaired reality contact. The symptoms can mimic one another,
          and they can be very difficult to determine, you know, what the cause of it
          is. However, there are some ways to look at that.

          “Q. But they do mimic one another in terms of the symptomology you
          described?


                                               27.
“A. Yes. Very much so. [¶] … [¶]

“Q. … It would be fair to say that the defendant has acknowledged and
admitted to you, as well as other mental health professionals, a long history
of methamphetamine abuse?

“A. Yes. I would agree with that.

“Q. Okay. And, in fact, the first physician to see him in terms of a mental
health professional was a Dr. Prather?

“A. Yes.

“Q. That was 2004?

“A. There was reference to a suicide attempt occurring prior to that, but I
have no records for that, but 2004 records are the first ones that I have
access to.

“Q. Okay. Actually show him going to a mental health professional?

“A. Yes.

“Q. That’s what Dr. Prather was?

“A. Correct.

“Q. In fact, Dr. Prather says this is—he says that this is the first time
[Hardin] had seen a psychiatrist or been involved in any kind of psychiatric
care, referring to the defendant?

“A. Okay.

“Q. Does that sound accurate?

“A. Yes. That sounds accurate.

“Q. I’ve got it here if you need to look at it.

“A. No. That’s okay.

“Q. Sound right to you? [¶] In there he actually says in terms of
interviewing the defendant and trying to diagnose him, unfortunately, at the
time I initially saw him he had been clean for methamphetamine for less
than a month. Does that sound right?



                                      28.
“A. Yes.

“Q. So a firm diagnosis could not be made?

“A. Correct.

“Q. And is that because, as you said a moment ago, methamphetamine
abuse mimics in many ways, not most ways, schizophrenia?

“A. Yes. [¶] … [¶]

“Q. Dr. Prather indicated that [Hardin] started using crank, which is a form
of amphetamine. That would be referring to actual methamphetamine?

“A. Methamphetamine, yeah.

“Q. He started using that at the age of 17 years old?

“A. Yes.

“Q. And he described that he got up to—at that point in time, January of
’03 till shortly before he saw Dr. Prather, an almost daily use of the drug?

“A. Yes. [¶] … [¶]

“Q. I think one of them was Truxtun Psychiatric?

“A. Yes.

“Q. And multiple—most of the times he’s seen he is diagnosed with
either—well, schizophrenia of some sort or another but they also diagnosed
him with a drug disorder?

“A. I would agree with that, yes.

“Q. He acknowledged—in fact, they repeatedly tell him throughout the
records, again apologize for summarizing, but to really figure out what’s
going on with him he needs to get off of meth?

“A. I would agree with that. However, I would also say that may misstate
it, because the vast majority of people have said he’s got schizophrenia and
a drug use disorder.

“Q. Right.




                                     29.
“A. But, you know, the rule is, and this is where I would agree with you, if
somebody’s coming in and they’re on drugs and they may be mentally ill,
what you want to do is get them off the drugs and let’s see if those
symptoms continue while they’re drug free and/or getting mental health
treatment. If that’s the case then we can kind of rule out that it may be a
drug related mental illness.

“Q. That’s an issue that Dr. Prather first keyed into originally in 2004 and
also something you at least had to grapple with. Would that be accurate?

“A. Yes.

“Q. During your first interview, the one in September 2010, what did he
tell you regarding his drug use?

“A. Regular use of methamphetamine. Regular use of alcohol. He had
been, I think, meth free for a period of several days, maybe a week prior to
the date of the offense. [¶] He was trying to get clean so he could enter the
Teen Challenge program.…

“Q. In fact, in your report he told you he had a daily use of
methamphetamine prior to July of 2010?

“A. Yes.

“Q. He told you that he used substance intravenously?

“A. Yes.

“Q. That means with a syringe?

“A. Correct.

“Q. And approximately a dime per day?

“A. Ten dollars.

“Q. Ten dollar amount of meth?

“A. Yes.

“Q. How much meth is that if you’re aware?

“A. You know, I think that’s about like one shot, maybe turn it into two
shots. It’s not a lot. However, if a drug user tells you they’re using a dime,
they might be using two. So you take—


                                     30.
“Q. So you would agree with me they tend to under report how much
they’re using?

“A. Yes. Yes. I think that that’s pretty common and universally
understood. That’s not to say people wouldn’t accurately report it, but it’s
a self-report. You take it with a grain of salt. [¶] … [¶]

“[Q.] To be clear, and I think your direct testimony was very clear, all that
you’re saying is in terms of premeditation and deliberation committing, say,
a murder is that people with schizophrenia, it’s possible that can affect
them but it’s also possible they can sort through the options, review the
potential consequences, and go ahead and make a decision?

“A. Lots of people with a severe mental disorder commit crimes that may
not be related to their mental illness whatsoever. [¶] … [¶] So most of the
time, even people with mental illnesses, their crimes are committed out of
criminality rather than mental illness.

“Q. I was going to ask you that. All the terms you discussed during your
direct, competency, what NGI is briefly, and premeditation, these are legal
concepts. They’re not psychological concepts?

“A. Yes.

“Q. So what you’re attempting to do is apply your expertise as a
psychologist to the legal concepts that are presented by the law?

“A. Correct.

“Q. You indicated that you had talked to the defendant’s mother. Did you
at any point talk to his Aunt Tamara Hume?

“A. No.

“Q. You did review her statement?

“A. Yes.

“Q. I believe I provided you with a transcript of her interview. Do you
recall that?

“A. I know you—a typed out transcript?

“Q. Yes.

“A. I don’t recall that.


                                     31.
“Q. Okay. Assume for a moment she told the detective when she was
interviewed that all of his issues started with methamphetamine. Would
that be the kind of witness that you would want to talk to who was kind of
around him at the beginning?

“A. Sure could. Again going back to the idea that in a mental illness and
substance abuse commonly exist or co-exist [sic], that may be important.…

“Q. That would also coincide with what Dr. Prather said, that it was
difficult to confirm the diagnoses because of the mimic[k]ing
symptomology?

“A. It can be very difficult, yes, particularly in the short run. [¶] … [¶]

“[Q.] You indicated that long term methamphetamine abuse, are you
familiar with physically what—when people use methamphetamine, what
does it physically do to them?

“A. There’s—are you talking mentally or physically? [¶] The, you know,
breakdown in their body is tooth decay, lesions on their arms.

“Q. Let’s talk with physically. Physically what can it do?

“A. Commonly you see people with a bad meth disorder they’ve lost a lot
of their teeth due to the dental hygiene issues that come up with
methamphetamine. You’ll see sores on their body having to do perhaps
with, you know, collapsed veins, using … needles that aren’t completely
clean. Not just the fact that they’re putting basically, you know, a
homemade, you know, toxin in their bloodstream, but then they’re leading a
life-style that goes along with it, which isn’t [eating] healthy, sleeping
healthy, bathing regularly. [¶] … [¶] But in terms of mentally, what
happens the biochemical things that occur in methamphetamine is similar
to the biomedical actions that occur in the brain of a person with
schizophrenia. [Their] brain chemicals, if you will, get out of whack, and
that’s why it can be difficult to distinguish between someone who has a
meth induced psychosis and schizophrenia. [¶] The same brain chemicals
that are in abundance in the person with methamphetamine is the same in
schizophrenia. Where you tend [to] see the differences then afterwards is
when the person has been off the meth or they’ve been treated that stuff
goes away whereas that is not the case with schizophrenia. But the brain
chemical that’s involved, the actions in the brain are very similar.

“Q. Okay. In fact, when they take methamphetamine, it raises—one of the
things that it does biochemically is [it] raises the dopamine levels?


                                      32.
       “A. Yes. Yeah. Dopamine is the specific brain chemical that gets elevated
       that is found elevated in persons with schizophrenia that don’t use meth.

       “Q. So then it’s even more complicated when you are trying to decide
       between the two. Correct?

       “A. Well, you can’t—don’t do a brain chemical test for anything, for any
       mental illness really.

       “Q. The levels—isn’t it true that the levels of—dopamine is the chemical
       in your body that makes you feel good?

       “A. It’s one of them, yes.

       “Q. When you—the meth raises it incredibly high?

       “A. Yes.

       “Q. And one of the problems with chronic meth abusers is they get used to
       the high level of dopamine?

       “A. Correct.

       “Q. And so they—even when they withdraw from it, they still experience
       hallucinations and other things because their body doesn’t have the level of
       dopamine that they’re accustomed to. Is that accurate?

       “A. That can be part of the [symptoms], yes.

       “Q. So some of the things they will talk about are in terms [of] delusions
       because of this meth, withdrawal or abuse, is that organs are separated from
       their body?

       “A. Very often there’s physical kinds of components like that.

       “Q. That sometimes call it crank bugs. They talk about bugs bouncing off
       their head?

       “A. Bugs, that’s common in meth. It can exist in schizophrenia, but it’s
       also common in meth. [¶] … [¶]

       “[The prosecutor]: I don’t have any further questions.” (Italics and bolding
       added.)
       After the prosecutor’s cross-examination, Musacco, on redirect, addressed the
concept of “dual diagnosis,” i.e., that substance-induced disorders are often seen

                                            33.
alongside mental illnesses such as schizophrenia; he also characterized Hardin’s
schizophrenia as “severe.” The prosecutor then recross-examined Musacco exclusively
on the issue of Hardin’s substance-induced psychosis, as follows:

      “Q [by the prosecutor]. Would you also characterize—would it be fair to
      say Mr. Hardin’s polysubstance abuse methamphetamine use is also
      severe?

      “A. Yes.

      “Q. And would it be fair to say that both of the issues manifested at the
      same time in terms of in 2004 when he first presented both issues were on
      the table?

      “A. I don’t think that we can—we can say with certainty if—what
      happened first, the chicken or the egg. Very often things happen
      coincidentally. [¶] A person that is vulnerable to schizophrenia may be
      vulnerable to a substance induced psychotic illness as well, but it’s more
      common than not that those things co-exist. You can have a lot of people
      that do drugs that don’t have schizophrenia. You can have a lot of people
      that do drugs that develop short acting symptoms of schizophrenia.

      “Q. But in Mr. Hardin’s case when it presented it was both of them?

      “A. It—yeah, I don’t think that we can—we can’t tear apart and say where
      does the methamphetamine come in versus the—you know, because the
      methamphetamine clearly played a negative role in this man’s life, clearly
      exacerbated his mental illness.

      “Q. And they presented at the same time?

      “A. At the time of the offense?

      “Q. In terms of—Dr. Prather was the first reported mental health
      professional to see the defendant. Right?

      “A. That we have documentation of, yes.

      “Q. In terms of his symptomology, whatever is causing it, whether it’s
      schizophrenia or drugs or both, they all merged at approximately the same
      time as best you can tell from those records?

      “A. From that doctor’s note that is accurate.


                                           34.
       “[The prosecutor]: Thank you, Judge.” (Italics added.)
       C.      Defense’s closing and prosecutor’s rebuttal arguments
       After the prosecutor’s cross-examination of Dr. Musacco, the judge instructed the
jury, including with CALCRIM Nos. 521 and 3428, and closing arguments followed.
With reference to CALCRIM Nos. 521 and 3428,16 the defense argued that Hardin was
not guilty of first-degree murder because, as a result of his mental illness and “self-
medicating” with methamphetamine, he did not actually deliberate and premeditate;
rather, the ongoing delusions, hallucinations, and distorted perceptions about being
persecuted by a network led him to “snap[]” or “explode[]” and stab Kabonic in the grip
of a psychosis.
       Defense counsel told the jury in closing argument, “[a]s you probably figured out
a long time ago, this is a pretty unusual case in that it’s not a who done it. It’s not a
murder that happened where we’re saying Mr. Hardin didn’t do it, Mr. Hardin wasn’t
there, it was somebody else. It’s kind of unusual in that regard.” Defense counsel then
stated that Hardin killed Kabonic, but the purpose of the trial was to determine whether
Hardin was guilty of first- or second-degree murder. Defense counsel discussed the
mental state required for first-degree murder and contended that Hardin’s crime was
“heinous … but it was not first degree murder because there was no premeditation and
deliberation.” He continued as follows:

              “How do we know this? There’s too many reasons we know it
       wasn’t deliberated and premeditated. The first is the fact of the case itself.
       The second is the mental health issues that Mr. Hardin has had for many
       years. [¶] Let’s talk about the first factor, the fact[s] of the case. [¶] … [¶]
       It was a quick, rash event. Mr. Hardin had no motive to kill Mr. Kabonic.
       [¶] … [¶] [It was an] unexpected, quick, violent encounter that no one saw
       coming.

       16The   reporter’s transcript indicates that counsel referenced CALCRIM
No. “2428” as the instruction regarding “mental impairment and how that applies to a
defense.” However, it is clear that counsel was discussing CALCRIM No. 3428, and the
error in the reporter’s transcript appears to be typographical.


                                              35.
       “The second factor is Mr. Hardin’s mental illness. You might ask
why this is important. [¶] It’s important because you’ll get a jury
instruction, number [3428], that talks about mental impairment and how
that applies to a defense.

       “That instruction reads you heard evidence that the defendant may
have suffered 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 one I’ll talk about is premeditation and deliberation. Okay.
So, in other words, you can consider evidence of Mr. Hardin’s mental
illness in evaluating whether he acted with premeditation and deliberation
on the night that he killed Michael Kabonic.

       “So why is it important? [The prosecutor] referred to it as a Hail
Mary, but it’s not that at all. [¶] Listen to what Dr. Musacco testified to
this morning. He said Jeffrey Hardin suffers from schizophrenia, paranoid
type. It’s not something that occurred recently last week or in the last year
or even the last three years. It’s something that’s been going on and been
documented for the past roughly nine years or so. [¶] … [¶]

       “He also diagnosed … his level of paranoid schizophrenia as severe.
He talked about various levels, various levels of mental illness. He said he
would classify Mr. Hardin’s level of mental illness as severe.

        “He talked about Mr. Hardin’s delusions. You heard some of them
in the recorded interview talk about the network. You heard something
about his intestines coming out of his body. Again, these are delusions that
have afflicted Mr. Hardin not before this case but many, many years going
back to when he was almost a teenager.

        “Dr. Musacco testified how schizophrenia, paranoid type, influences
someone’s brain, what effects it has. He said it affects thinking, affects
reason, judgment, affects their reality contact. Their very perception of
reality, what’s going on, is completely different than a normal person. [¶]
They suffer from delusions, confused thoughts, misperceptions, and they
can be impulsive. That’s very important when you’re talking about
whether this crime was deliberated upon, whether it was premeditated.
This mental illness goes right to that issue. [¶] You can’t think of Mr.
Hardin as the normal guy off the street. You have to think of him as he is, a
mentally ill person.



                                     36.
        “Dr. Musacco testified. [The prosecutor] cross-examined him and
said, well, can a person with schizophrenia, paranoid type, premeditate and
deliberate? He said, yes, it’s possible. Depending on the level of mental
illness, could premeditate a deliberate act, but he also said, generally
speaking, this type of disease generally impairs the ability to premediate
and deliberate. It impairs the ability to premediate and deliberate an act.
[¶] … [¶]

       “What does the evidence show? The evidence makes pretty clear
what happened here. [¶] Jeffrey Hardin was staying with his aunt. He’s
severely mentally ill, been that way for many years. He’s been tormented
for many years, at least in his mind, by this network, feelings of
persecution, feelings that they were somehow a threat to his family,
hallucinations, delusions. He thought about hurting someone for a long
time.

       “He was kind of building up over time. He thought about hurting
someone. He didn’t do it, but he was thinking about it. It was something
that was building to a head.

       “It didn’t help the issue by self-medicating himself with
methamphetamine, and that probably at least in some way played some
type of factor.

        “One moment—nobody knows why, probably nobody ever will—
one moment sometime between getting his food and taking it to his room,
Douglas and Tamara hearing the commotion, a switch went off in his head.
It wasn’t something that was planned, wasn’t something orchestrated. Just
in that moment, for whatever reason, something went off in his brain and he
did what he did.

      “Almost like a volcano. He’s there one day and all [of a] sudden he
explodes. [¶] … [¶]

“We know from Dr. Musacco’s testimony and from the testimony of his
aunt, Tamara Humes, Jeffrey has been talking about the network for years.
At least six years before this killing he had been talking about the network,
telling people about it, and everyone said, hey, I don’t know what you’re
talking about. [¶] It wasn’t real. We all know it wasn’t real, but to Jeffrey
in his mind on that evening it was real, and that played a huge role in what
he did.




                                     37.
              “So, as I said. It was in his head a long time. The night of
       August 4th it just exploded and … Michael Kabonic was the guy that bore
       the brunt of it. [¶] … [¶]

              “[What we have here is a] [m]entally ill person being tormented for
       years. He has a knife for whatever reason. He’s planning on doing
       something. He pulls a knife out. Something snaps in his head. He goes
       over and does it. It’s done. [¶] In seconds it was over. It wasn’t planned.
       It wasn’t orchestrated. It wasn’t thought through. It wasn’t premeditated
       murder. [¶] … [¶]

               “Your job is to look at CALCRIM [No.] 521, understand it, apply
       [the] law to the facts, take into consideration the facts of the case, how
       quickly it happened, Dr. Musacco’s testimony about Jeffrey’s mental
       illness, long ongoing mental illness, and just find … reasonable doubt that
       there was premeditation and deliberation and find Jeffrey Hardin not guilty
       of first degree murder.”
       In his rebuttal argument, the prosecutor noted that the jury instruction on the
“mental health” issue was framed in terms of a “mental disease,” and added that the
evidence in this case raised a real question about whether Hardin’s delusional symptoms,
i.e., his talk “about crazy networking stuff,” were caused by schizophrenia or his
methamphetamine-induced disorder. Specifically, the prosecutor told the jury:

               “So it’s abundantly clear that on each of those, willfully,
       deliberately, and with premeditation—again three separate things—but the
       evidence is there, and just because he talks about crazy networking stuff—
       one of the things Dr. Musacco said this morning was he doesn’t know and
       can’t tell you which came first, the methamphetamine abuse or the mental
       health issues, but what he did tell you was isn’t it amazing that he starts
       having problems at the same time he starts to use the drugs?

             “And it’s not like I’m telling you something where they don’t match
       up. The word Dr. Musacco used was mimic. The symptoms look the same.
       [¶] And we heard from Tamara Humes he was a straight A student before
       the meth.” (Italics added).
Defense counsel objected to the prosecutor’s line of argument as constituting “improper
argument” but the court overruled the objection.
       The prosecutor continued:



                                            38.
       “So when you’re looking at—the instruction on this mental health issue is
       [sic] may have suffered from a mental disease, and I think there is a real
       debate as to whether it’s really schizophrenia or it’s methamphetamine
       caused[,] especially [in] someone who told Dr. Musacco that he was using
       intravenously, was shooting up [every day] and was using $10 worth,
       which he called either one syringe or two syringes full, but he also told you
       that people who admit drug use tend to underreport and minimize.” (Italics
       added.)

       D.     Prosecutor committed prejudicial misconduct by mischaracterizing the
              scope of the diminished-actuality defense
       In his rebuttal comments, the prosecutor drew a distinction between schizophrenia
and a drug-induced or “methamphetamine caused” disorder, with reference to CALCRIM
No. 3428, “the instruction on this mental health issue.” The unmistakable implication of
the prosecutor’s comments was that the distinction was legally significant, when, in fact,
it was not. The prosecutor made the same point through his cross-examination of Dr.
Musacco, i.e., that it mattered whether Hardin’s delusions and distorted perceptions were
caused by his schizophrenia or his substance-abuse disorder, when, in fact, for purposes
of the jury’s consideration of these psychotic symptoms, it did not matter at all. Taken in
conjunction with his cross-examination of Dr. Musacco, the prosecutor’s rebuttal
comments gave rise to the legally incorrect inference that, in contrast to evidence of an
organic mental disorder, evidence of a drug-induced mental disorder was not exculpatory
under CALCRIM No. 3428. More specifically, the prosecutor’s comments implied that,
in assessing whether Hardin had the requisite mental state, the jury could not consider the
evidence of Hardin’s delusional symptoms if these were related, to any extent, to his
substance-abuse disorder, because the latter was not a mental disease, defect, or disorder
within the meaning of CALCRIM No. 3428. The prosecutor thus effectively misstated
the law applicable to diminished actuality, i.e., section 28 as reflected in CALCRIM
No. 3428.




                                            39.
       In so mischaracterizing the scope of the diminished-actuality defense, the
prosecutor committed misconduct under the applicable standards, and, in light of the
record as a whole, the error was prejudicial.
              1.      Legal standards
       Although counsel have wide latitude in discussing the legal and factual merits of a
case, “it is improper to misstate the law.” (People v. Bell (1989) 49 Cal.3d 502, 538;
People v. Hill (1998) 17 Cal.4th 800, 829 (Hill).) Moreover, “‘[a] prosecutor is held to a
standard higher than that imposed on other attorneys because of the unique function he or
she performs in representing the interests, and in exercising the sovereign power, of the
state. [Citation].’” (Hill, supra, at p. 820.) Indeed, “[i]t is well settled, requiring no
citation of authority,” that “improper remarks in the opening statement, improper
examination or cross-examination, or improper argument” by a prosecutor in a criminal
trial constitutes prosecutorial “‘misconduct.’” (People v. Asta (1967) 251 Cal.App.2d 64,
86-87, disapproved on other grounds by People v. Bolton (1979) 23 Cal.3d 208, 213
(Bolton).)
       More generally, a prosecutor commits misconduct by using deceptive or
reprehensible methods of persuasion. (People v. Barnett (1998) 17 Cal.4th 1044, 1133.)
It is not necessary for the defendant to show the prosecutor acted in bad faith because the
prosecutor’s conduct is evaluated in accordance with an objective standard. (Ibid.; see
also People v. Crew (2003) 31 Cal.4th 822, 839 [“Because we consider the effect of the
prosecutor’s action on the defendant, a determination of bad faith or wrongful intent by
the prosecutor is not required for a finding of prosecutorial misconduct.”]; Bolton, supra,
23 Cal.3d at p. 214 [“‘[Injury] to [defendant] is nonetheless an injury because it was
committed inadvertently rather than intentionally.’”]; Hill, supra, 17 Cal.4th at pp. 822-
823 & fn. 1 [“[T]he term prosecutorial ‘misconduct’ is somewhat of a misnomer to the
extent that it suggests a prosecutor must act with a culpable state of mind[;] [a] more apt
description of the transgression is prosecutorial error.”].) Finally, when a claim of

                                              40.
misconduct is based on the prosecutor’s comments before the jury, “‘the question is
whether there is a reasonable likelihood that the jury construed or applied any of the
complained-of remarks in an objectionable fashion.’” (People v. Smithey (1999) 20
Cal.4th 936, 960, quoting People v. Samayoa (1997) 15 Cal.4th 795, 841.)
       “Prosecutorial misconduct, however, will not be grounds for reversal unless it is
shown to be prejudicial.” (People v. Villa (1980) 109 Cal.App.3d 360, 366.) Just as a
finding of misconduct hinges on fairness to the defendant rather than the intentionality of
the prosecutor, so too is reversal of judgment on the basis of prosecutorial misconduct
“designed not so much to punish prosecutors as to protect the fair trial rights of
defendants.” (Bolton, supra, 23 Cal.3d at p. 214.) The Bolton court held that either of
the two traditional tests of prejudice could apply to a particular instance of misconduct:
“Under traditional application of this state’s harmless error rule, the test of prejudice is
whether it is ‘reasonably probable that a result more favorable to the defendant would
have occurred had the district attorney refrained from the comment attacked by the
defendant. [Citations.]’ [Citation.] However, if federal constitutional error is involved,
then the burden shifts to the state ‘to prove beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.’ (Chapman v. California (1967)
386 U.S. 18, 24.)” (Ibid.)
       Finally, before addressing the merits of this issue, we note the People do not argue
that Hardin has forfeited this claim. Indeed, the issue is properly before us. To preserve
for appeal a claim of prosecutorial misconduct, Hardin must make a timely objection at
trial and request an admonition to the jury. (People v. Farnam (2002) 28 Cal.4th 107,
167.) “A defendant will be excused from the necessity of either a timely objection and/or
a request for admonition if either would be futile. [Citations.]” (Hill, supra, 17 Cal.4th
at p. 820.) The “absence of a request for a curative admonition does not forfeit the issue
for appeal if ‘the court immediately overrules an objection to alleged prosecutorial
misconduct [and as a consequence] the defendant has no opportunity to make such a

                                              41.
request.’” (Id. at pp. 820-821, quoting People v. Green (1980) 27 Cal.3d 1, 35, fn. 19,
abrogated on other grounds by People v. Martinez (1999) 20 Cal.4th 225.)
       Here, defense counsel objected to the prosecutor’s misleading rebuttal comments
as being improper, but the court immediately overruled the objection, thus depriving
counsel of a basis to request a curative admonition. (See People v. Green, supra, 27
Cal.3d at p. 35 [issue of prosecutorial misconduct preserved for review in absence of
request for curative admonition where counsel objected on basis of improper argument
but court overruled objection].) We also have the discretion to reach the issue even if it
were forfeited. (People v. Smith (2003) 31 Cal.4th 1207, 1215.)
              2.     Analysis
       Here, the defense adopted the theory of diminished actuality to argue that Hardin
was guilty of second-degree murder but not first-degree murder. Specifically, based on
relevant expert testimony, Hardin argued that his delusional symptoms prevented him
from deliberating and premeditating, both of which were elements the prosecution was
required to prove beyond a reasonable doubt in order to obtain a conviction for first-
degree murder. Hardin’s theory of defense was squarely encompassed by CALCRIM
No. 3428 on account of Dr. Musacco’s testimony that Hardin suffered from diagnosed
mental disorders, i.e., paranoid schizophrenia and drug-induced psychosis, which caused
a disordered and delusional thought process and impaired his perception of reality, and
that these symptoms could, in turn, impair his ability to deliberate and premeditate.
Accordingly, defense counsel urged the jury to consider the evidence of Hardin’s
schizophrenia in assessing his mental state pursuant to CALCRIM No. 3428.
       The prosecutor questioned whether Hardin even had schizophrenia and argued that
Hardin’s symptoms were more likely caused by his methamphetamine-use disorder: “Dr.
Musacco said this morning … he doesn’t know and can’t tell you which came first, the
methamphetamine abuse or the mental health issues, but what he did tell you was isn’t it
amazing that he starts having problems at the same time he starts to use drugs?

                                            42.
[¶] … [¶] And we heard from Tamara Humes he was a straight A student before the
meth. [¶] … [¶] … So when you’re looking at—the instruction on this mental health
issue … may have suffered from a mental disease, and I think there is a real debate as to
whether it’s really schizophrenia or it’s methamphetamine caused .…” (Italics added).
The prosecutor’s point was reinforced by his cross-examination of Dr. Musacco in which
the prosecutor also sought to show that Hardin’s symptoms matched the symptoms of
both schizophrenia, as well as methamphetamine-use disorder, and, in his case, were
likely caused by the latter disorder.17 However, the prosecutor’s argument was
misleading and, in effect, deceptive, because it suggested that the source of Hardin’s
delusional symptoms, i.e., whether they were caused by schizophrenia or a substance-
induced disorder, was material for the application of CALCRIM No. 3428, when it was
not. The jury could consider Hardin’s delusional symptoms in assessing his mental state
under CALCRIM No. 3428 and whether they were caused by his schizophrenia, his drug-
induced disorder, or both. The prosecutor’s comments, on the other hand, suggested that,
in assessing Hardin’s mental state, the jurors had to disregard his delusional symptoms
entirely if they determined the symptoms were caused by his substance-abuse disorder, or
even if they were unsure whether his symptoms were caused by schizophrenia or his
substance-abuse disorder. The prosecutor’s argument thus mischaracterized the law.
       We further conclude there is a reasonable likelihood the prosecutor’s remarks
misled the jury. (See People v. Frye (1998) 18 Cal.4th 894, 970 [“To prevail on a claim
of prosecutorial misconduct based on remarks to the jury, the defendant must show a
reasonable likelihood the jury understood or applied the complained-of comments in an

       17The  prosecutor similarly addressed the relationship between Hardin’s
methamphetamine use and his delusional symptoms when questioning his aunt, Tamara
Humes, in the guilt phase of the trial. In rebuttal, the prosecutor argued, based on
Humes’s testimony, that “[t]he symptoms [of schizophrenia and methamphetamine-
induced disorder] look the same. [¶] And we heard from Tamara Humes he was a
straight A student before the meth.”


                                            43.
improper or erroneous manner.”], disapproved on another ground in People v. Doolin
(2009) 45 Cal.4th 390, 421, fn. 22.) Here, the jury was instructed, via CALCRIM
No. 3428, that it could consider evidence of Hardin’s mental disorder(s) for the sole,
limited purpose of assessing his mental state at the time of the crime. However, neither
CALCRIM No. 3428 itself, nor any other instruction, clarified that the jury could
consider evidence of organic mental disorders as well as drug-induced psychoses under
this instruction.
       Further, the import of the prosecutor’s comments was strongly reinforced by his
cross-examination of Dr. Musacco, in which the prosecutor tried to show that Hardin’s
symptoms were caused by his methamphetamine-induced disorder rather than
schizophrenia, and that Hardin may not even have had schizophrenia as his psychological
symptoms began when he started abusing methamphetamine. In his own closing, defense
counsel did not rebut the misleading implications of the prosecutor’s cross-examination
of Dr. Musacco, i.e., that CALCRIM No. 3428 encompassed only organic mental
disorders to the exclusion of substance-abuse disorders. Defense counsel did, however,
object to the prosecutor’s improper rebuttal comments but the judge overruled the
objection, thereby bolstering the prosecutor’s argument. Finally, since the prosecutor
made his misleading comments in his rebuttal closing, defense counsel had no
opportunity to respond directly to them. Thus, there is every reason to believe that the
jury drew and applied the only logical inference from the comments: It could consider
Hardin’s delusional symptoms in assessing his mental state only if the symptoms were
caused by schizophrenia; to the extent the jury believed the symptoms were related to
Hardin’s substance-abuse disorder in any way, it had to disregard the symptoms entirely.
Since the prosecutor’s comments mischaracterized the law, and there is a reasonable
likelihood the jury was misled, the comments constituted misconduct.
       For the prosecutor’s error to be reversible, it must be prejudicial under the facts of
the case. Here, the error was prejudicial under both the Watson and Chapman standards.

                                             44.
(People v. Watson (1956) 46 Cal.2d 818, 837 (Watson) [error warrants reversal if it
appears reasonably probable that result more favorable to defendant would have occurred
absent error]; Chapman v. California, supra, 386 U.S. at p. 24 [state must prove that error
did not contribute to verdict].)
       The jury was instructed on first- and second-degree murder. Under section 28,
evidence of mental disease or disorder is admissible “solely on the issue of whether or
not the accused actually formed a required specific intent, premeditated, deliberated, or
harbored malice aforethought, when a specific intent crime is charged.” Section 28 is
thus relevant to whether Hardin had the requisite mental states applicable to first- and
second-degree murder, respectively. (See, e.g., People v. Whitfield (1994) 7 Cal.4th
437,18 450; People v. Reyes, supra, 52 Cal.App.4th at pp. 982-986; Ho v. Carey (9th Cir.
2003) 332 F.3d 587, 592; People v. Saille, supra, 54 Cal.3d at pp. 1116-1117; People v.
Bobo (1990) 229 Cal.App.3d 1417, 1442-1443.) The trial court instructed the jury as to
the mental state required for second-degree murder, as well as the mental state required
for first-degree murder, and further instructed the jury pursuant to CALCRIM No. 3428
as follows:

              “You have heard that the defendant may have suffered from mental
       disease, defect or disorder. You may consider this evidence only for the
       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
       express malice aforethought and premeditation and deliberation for first
       degree murder or malice aforethought, either express or implied, for the
       lesser crime of second degree murder. If the People have not met this
       burden, you must find the defendant not guilty of the charged crime or the
       lesser included offense based on your finding.”


       18Superseded by statute on another ground in People v. Mendoza (1998) 18
Cal.4th 1114, 1123-1126 and People v. Martin (2000) 78 Cal.App.4th 1107, 1113-1115.


                                            45.
       CALCRIM No. 3428 was critical to Hardin’s defense, and the prosecutor’s
mischaracterization of its scope potentially affected the jury’s deliberations as to both
first- and second-degree murder.
       Through his cross-examination of Dr. Musacco, the prosecutor sought to show that
Hardin had a substance-induced disorder and not schizophrenia, and that his delusional
and psychotic symptoms were caused by the substance-induced disorder.
       Next, in his rebuttal comments, the prosecutor argued that “the instruction on this
mental health issue … may have suffered from a mental disease, and I think there is a real
debate as to whether it’s really schizophrenia or it’s methamphetamine caused .…”
(Italics added.)
       In combination, the prosecutor’s cross-examination and his rebuttal comments
created the erroneous impression that drug-induced psychosis was not exculpatory under
the law.19 Put differently, the jury was led to believe that only symptoms independently
caused by organic mental diseases were exculpatory under the law. The prosecutor’s
tactic narrowed the scope of the diminished-actuality defense as delineated in CALCRIM
No. 3428. If the jury determined that Hardin’s delusional and psychotic symptoms were
caused to any extent by his methamphetamine-induced disorder, it would have to
disregard them in assessing his mental state in committing the offense. The error thus
tainted the jury’s consideration of the question whether Hardin was guilty of first-degree
murder, as well as the question whether he was guilty of second-degree murder.
       The People’s theory was based in large part on Hardin’s police interrogation on
the night of the killing; however, substantial portions of the statement were incoherent
and reflected Hardin’s delusional beliefs about the network. The prosecutor argued that
Hardin’s responses in the interrogation indicated he had resolved to kill Kabonic before

       19Even  though the defense did not specifically argue that Hardin’s drug-induced
psychosis was exculpatory under CALCRIM No. 3428, the jury could still have found it
to be so absent the prosecutor’s error.


                                             46.
he completed the act and he was aware his actions were wrong. The prosecutor argued
that this evidence, along with other facts (e.g., that Hardin fled from the scene after the
murder; that he tried to kill Jones, who had witnessed the attack on Kabonic, by throwing
a knife at him; and that he took a knife from his room and went along the corridor to
Kabonic’s room and attacked him in bed when he was most vulnerable), revealed that
Hardin acted with deliberation and premeditation. The defense attempted to refute the
prosecution’s theory that Hardin acted with deliberation and premeditation. Counsel
highlighted the suddenness of the attack and the lack of a motive, arguing that Hardin did
not deliberate or premeditate but, rather, reached a breaking point as a result of his long
history of delusions, hallucinations, and other psychotic symptoms caused by his
paranoid schizophrenia. CALCRIM No. 3428 was directly relevant to the jury’s
consideration of the narrow issue presented by the parties: Did Hardin deliberate and
premeditate in killing Kabonic? In suggesting that the jury could not refer to CALCRIM
No. 3428 if it believed Hardin’s symptoms were in any way related to his
methamphetamine-induced disorder, the prosecutor’s error was prejudicial.
       Since it is reasonably probable the outcome of the proceeding would have been
more favorable to Hardin absent the prosecutor’s error, we reverse the judgment and
remand the matter for a new trial.20 (See Watson, supra, 46 Cal.2d at p. 837.) We note
that reversal of the judgment would also necessarily require the retrial of Hardin’s
insanity defense, assuming he re-enters pleas of not guilty and not guilty by reason of
insanity on remand and is convicted upon retrial of the guilt phase. (See People v. James
(2015) 238 Cal.App.4th 794, 813, fn. 6 [“In the eyes of the law there is only one trial
even though it is divided into two sections or stages if insanity is pleaded as a defense.”].)



       20Probability under Watson “does not mean more likely than not, but merely a
reasonable chance, more than an abstract possibility.” (People v. Superior Court
(Ghilotti) (2002) 27 Cal.4th 888, 918.)


                                             47.
II.    Sufficiency of the evidence for a first-degree murder conviction
       Hardin argues the evidence in the record was insufficient to “prove deliberation
and premeditation beyond a reasonable doubt,” and, in turn, to convict him of first-degree
murder. He contends that, given the “sudden and rash” nature of, as well as the lack of
motive for, the killing, the evidence supports at most, a finding of second-degree
murder.21 Finally, Hardin asserts that the repeated references to “the network” and the
many incoherent responses that are woven throughout his police interrogation further
confirm that his delusional state precluded him from deliberating and premeditating as
required for first-degree murder.
       The standard of review for a challenge to the sufficiency of the evidence
supporting a conviction is well established:

               “‘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.… We presume in support of the judgment the existence of every
       fact the trier of fact reasonably could infer from the evidence. [Citation.] If
       the circumstances reasonably justify the trier of fact’s findings, reversal of
       the judgment is not warranted simply because the circumstances might also
       reasonably be reconciled with a contrary finding. [Citation.] A reviewing
       court neither reweighs evidence nor reevaluates a witness’s credibility.
       [Citation.]’ [Citation.]” (People v. D’Arcy (2010) 48 Cal.4th 257, 293.)
       Here the jury considered the entirety of Hardin’s police interrogation. Hardin
explained how the attack on Kabonic unfolded. Hardin said he took his dinner to his
room. He took a knife from his bag (he had taken the knife from his stepmother’s house
about two weeks earlier) and “attacked [Kabonic].” Hardin explained that Kabonic “was
in bed he was just laying down on his back,” and “I walked up there[,] I stabbed him

       21Tamara   Hume testified that, about two or three minutes after she told Hardin to
leave the table, she heard Kabonic yell that Hardin was stabbing him. Hardin had never
had a conflict with Kabonic, and Ms. Hume could perceive no reason for the attack.


                                               48.
and … I just hurt him. [¶] … [¶] I did.” He did not have a quarrel with Kabonic and had
not planned to kill him: “I [did not] plan … it … or two weeks ago … like I said it’s
been … years coming on it’s been years,” but acknowledged that Kabonic was in the
wrong place at the wrong time. Hardin admitted he knew the stabbing would kill
Kabonic and he knew it was wrong. Hardin also understood he would get into trouble
and go to jail for doing what he did and consequently he left the scene in his aunt’s truck.
Specifically, he stated: “I broke the law I hurt somebody and then I took a truck and then
I left it and it’s a lot.” Hardin explained that, after he fled in the truck, he wanted to turn
himself in or get arrested, and so he intentionally crashed the truck, albeit at a low rate of
speed so he could jump out of it without injury before it crashed.
       The prosecutor argued that Hardin’s interrogation responses indicated he had
resolved to kill Kabonic before he completed the act and that he was aware his actions
were wrong. The prosecutor argued that this evidence, along with other facts (e.g., that
Hardin fled the scene after the murder; that he tried to kill Jones, who had witnessed the
attack on Kabonic, by throwing a knife at him; and that he took a knife from his room
and went along the corridor to Kabonic’s room and attacked him in bed when he was
most vulnerable) indicated that Hardin knew what was going on and acted with
deliberation and premeditation.
       Dr. Musacco, the only expert witness to testify in the guilt phase, diagnosed
Hardin with severe paranoid schizophrenia, as well as a substance-induced disorder; the
symptoms of both disorders included “auditory hallucinations, delusional beliefs, [and]
impaired reality contact.” Musacco opined that Hardin’s schizophrenia was exacerbated
by his long-term substance abuse. Finally, Musacco testified that paranoid schizophrenia
can impair the ability to premeditate and deliberate because it profoundly alters an
affected person’s perception of reality and results in a disorganized and confused thought
process, but, “[a]t the same time[,] a person with schizophrenia can make decisions that
are based on reality and act on them without being influenced by their mental illness.”

                                              49.
       Based on this record, we conclude the evidence was sufficient for a reasonable
trier of fact to find that Hardin committed first-degree murder, i.e., that he killed Kabonic
willfully, deliberately, and with premeditation and express malice aforethought. We
recognize that the record would also support a contrary finding and that the jury’s ability
to consider the psychiatric evidence properly in this case was constrained by the
prosecutorial error addressed above. Nonetheless, the totality of evidence in the record is
sufficient to support Hardin’s first-degree murder conviction. (See, e.g., People v. Stress
(1988) 205 Cal.App.3d 1259, 1270 [“A finding of deliberation and premeditation is not
negated by evidence a defendant’s mental condition was abnormal or his perception of
reality delusional unless those conditions resulted in the failure to plan or weigh
considerations for and against the proposed course of action.”], italics added.)
       In light of our conclusion that a finding of first-degree murder is supported by the
record but the judgment nevertheless must be reversed on account of prejudicial
prosecutorial error, we need not address Hardin’s other claims.
                                      DISPOSITION
       The judgment is reversed.

                                                                  _____________________
                                                                                Smith, J.
WE CONCUR:


 _____________________
 Gomes, Acting P.J.


 _____________________
 Peña, J.




                                             50.
