Filed 6/9/16 P. v. Hernandez CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A140625
v.
CHRISTOPHER HERNANDEZ,                                               (Solano County Super. Ct. No.
                                                                     FCR276952)
         Defendant and Appellant.


         Defendant and appellant Christopher Hernandez (appellant) pled not guilty and not
guilty by reason of insanity to a charge of murder. A jury convicted him of first degree
murder and, following a separate sanity trial, found he was sane at the time of the murder.
Among other things, appellant contends the sanity finding is not supported by substantial
evidence, the trial court prejudicially erred in its questioning of appellant’s sanity-phase
experts, and the court’s instruction on the legal definition of sanity was flawed. We
reject those and appellant’s other contentions and affirm.
                                      PROCEDURAL BACKGROUND
         In April 2011, the District Attorney of Solano County filed an information
charging appellant with murder (Pen. Code § 187, subd. (a))1 and alleged an enhancement
for use of a knife (§ 12022, subd. (b)(1)) and two prior strikes (§ 667, subds. (b)–(i)).
Appellant pled not guilty and not guilty by reason of insanity.



1
    All undesignated statutory references are to the Penal Code.

                                                             1
       In June 2013, a jury found appellant guilty of murder in the first degree and found
true the weapon enhancement. The trial court found the prior strike allegations true.
Subsequently, the jury found appellant was sane during commission of the murder.
       In November 2013, the trial court denied appellant’s motion for a new sanity trial
and sentenced appellant to a prison term of 76 years to life, consisting of a 25-year-to-life
term tripled due to the two strikes, plus one year for the weapon enhancement. This
appeal followed.
                              FACTUAL BACKGROUND2
       In June 2010, appellant and his mother lived in a trailer park in Fairfield. The
victim, Karen Harrison, lived a few trailers away. Appellant and Harrison were friends;
appellant and another neighbor, Ken White, were helping Harrison remodel her trailer.
       In May 2010, following an incident with appellant, Harrison started sleeping at her
mother’s home instead of in her trailer. Harrison told White’s mother, Lois Olson, that
appellant had overpowered her and tried to take her pants off.3 Harrison said she had
spoken with appellant afterwards and he had promised to “be a gentleman.” White’s
sister, Gay Clark, also heard about the incident and warned Harrison to be careful around
appellant, but Harrison said she only worried if appellant drank.
       White died of liver disease on June 4, 2010. On June 5, Clark went to Harrison’s
trailer and through an open door she heard Harrison say, “Don’t you ever do that again.
And I mean it. You need to be a gentleman.” Appellant was in the trailer with Harrison;
there was also a man from the cable company there. On June 7, Clark warned Harrison
again that she should be careful; Harrison responded, “I know Chris won’t hurt me.”
Olson also warned Harrison to be careful around appellant; Harrison said, “I will not
have sex with Chris. The only way he’s going to get sex with me is he’s gonna have to
kill me.”

2
  Because the issues on appeal all relate to appellant’s sanity plea, this factual summary
omits many details not important to this court’s analysis. The sanity-phase expert
testimony is summarized in the discussion of appellant’s claims.
3
  Harrison’s statement was admitted for the limited purpose of showing her “state of mind
at the time of her death.”

                                              2
         On June 14, 2010, just before 5 a.m., appellant knocked on the door of his
mother’s home. When his 13-year-old niece, Arselia, opened the door, appellant said, “I
fucked up” and “I killed Karen.” A friend of Arselia’s was sleeping over, and appellant
said “Oh, great. Another witness” or “Oh man. We have a witness.” Appellant told
Arselia that he and Harrison had been drinking, and Harrison “got naked” and asked him
to kill her. Appellant was holding a shirt containing a bloody kitchen knife. He told
Arselia he was going to prison, and asked her to visit him there.
         Appellant told his mother Harrison asked him to kill her. He said Harrison told
him she did not want to live anymore because White had died. Appellant’s mother called
911 at 5:53 a.m.4 Appellant admitted on the 911 call that he killed Harrison; he said
Harrison told him, “Take me out. I’m really tired of this stuff.” He said he was “guilty”
and asked the 911 operator to send police to arrest him. Police arrived and arrested
appellant.
Appellant’s Police Interviews
         In a police interview the day of the killing, appellant said he and Harrison made a
pact in which he would kill her, and then kill himself. He and Harrison were drinking,
and Harrison took off her clothes and began “parading around . . . naked.” They kissed,
but she was depressed. She was upset about White’s death, stressed about various things,
and taking a lot of pills. She said she “couldn’t deal with life anymore” and asked
appellant to kill her. Harrison laid down and asked appellant to choke her. He tried but
was unable to do so, and Harrison asked him to stab her with a knife. He stabbed her
once. He had planned to stab himself next, but he was scared and could not do it.
Appellant told the police he was “gonna pay for it because I’m the one that did it,” and he
asked whether “they still do the . . . gas chamber.” He claimed he had been in a romantic
relationship with Harrison, and they had sexual contact the night he killed her. He denied
raping her.




4
    Appellant’s mother claimed she called 911 after talking to him for about six minutes.

                                               3
         The police interviewed appellant a second time the next day, June 15, 2010.
Appellant acknowledged an “incident” about a month before when he “went too rough
on” Harrison. With respect to the killing, he explained Harrison said she did not want to
live anymore because she was always taking pills, her ex-husband’s family thought she
was “walking trash,” her mom wanted her to move out, and her ex-husband did not
provide adequate child support. After appellant failed to choke Harrison, she told him to
use a knife. Appellant said he told her, “But I’ll get in trouble.” She suggested he kill
himself as well, and he agreed. After appellant killed Harrison, he spent time in her
apartment trying to build up the courage to kill himself, but he could not do it. Appellant
accounted for bruises on Harrison’s body by claiming she had fallen repeatedly on the
floor while drunk. He said Harrison had scraped his penis while orally copulating him.
The Physical Evidence
         The physical evidence showed no indication of strangling. The stab wound
indicated the knife entered Harrison’s chest and was moved up and down while inside her
body; there was only one entry wound, but there were 11 wounds on her back. Harrison
had abrasions on her face, bruises on her arms, and faint contusions on her back. There
was dark-colored material on Harrison’s thighs, legs, buttocks, and vagina; some of it
appeared to be blood and some of it appeared to be fecal matter. Appellant had three
abrasions on his penis, a cut on his hand, a bite mark on his chest, and abrasions on his
knees.
Defense Witnesses
         A friend and former boyfriend of Harrison testified he gave her Vicodin pills once
or twice, although he told a police officer he gave her pills two times a week. The friend
also testified he received a text from her on June 13, 2010 referring to a “crazy” party at
her house with “dope flowing.” The prosecutor elicited that Harrison said she was fearful
of appellant, whom she said was “stalker status.” She said appellant once tried to pull off
her pants, and she was not romantically interested in him.
         A neighbor testified she saw appellant and Harrison together twice in February
2010. She observed appellant being physically affectionate towards Harrison. The


                                              4
neighbor testified Harrison was not responding to appellant’s affections, although she
admitted that Harrison had her hand on top of appellant’s hand.
       Harrison’s ex-husband testified she had mental problems, including attention-
seeking behavior. She was like a roller coaster, always either very high or very low.
Once in 1999 he came home and found her passed out with superficial cuts on her
forearm, above the wrist. Sometimes when they argued Harrison would say she wished
she were dead.
                                       DISCUSSION
I.     Substantial Evidence Supports the Jury’s Sanity Finding
       Appellant contends the jury’s finding he was sane when he killed Harrison must
be reversed because the evidence of insanity—essentially the testimony of the two expert
witnesses during the sanity phase of trial— was of such weight that a jury could not
reasonably reject it. We reject the contention.
       A.     Legal Background
       “Under California’s statutory scheme, ‘[p]ersons who are mentally incapacitated’
are deemed unable to commit a crime as a matter of law.[5] [Citation.] Mental incapacity
. . . is determined by the M’Naghten test for legal insanity provided in section 25,
subdivision (b). (M’Naghten’s Case (1843) 8 Eng.Rep. 718, 722; [additional citations].)
Under M’Naghten, insanity is established if the defendant was unable either to
understand the nature and quality of the criminal act, or to distinguish right from wrong
when the act was committed.” (People v. Elmore (2014) 59 Cal.4th 121, 140 (Elmore).)6


5
  While acknowledging the issue is undecided, appellant contends the United States
Constitution requires states to recognize an insanity defense. (See Clark v. Arizona
(2006) 548 U.S. 735, 752, fn. 20.) We need not and do not address that issue in the
present case.
6
  Section 25, subdivision (b) provides, “In any criminal proceeding . . . in which a plea of
not guilty by reason of insanity is entered, this defense shall be found by the trier of fact
only when the accused person proves by a preponderance of the evidence that he or she
was incapable of knowing or understanding the nature and quality of his or her act and of
distinguishing right from wrong at the time of the commission of the offense.” In People
v. Skinner (1985) 39 Cal.3d 765, 775–777, the Supreme Court held that, despite the

                                              5
“Notably, a defendant may suffer from a diagnosable mental illness without being legally
insane under the M’Naghten standard.” (People v. Mills (2012) 55 Cal.4th 663, 672
(Mills).)
       When, as in this case, the defendant pleads both not guilty and not guilty by reason
of insanity, “[t]he trial is bifurcated, with the question of guilt tried first . . . . [I]n order to
reserve the issue of sanity for the second phase of trial[,] the defendant is . . .
conclusively presumed to have been legally sane at the time of the offense. [Citations.]
Evidence of the defendant’s mental state may not be admitted at the guilt phase to prove
insanity. [Citations.] If the defendant is found guilty, the trial proceeds to the sanity
phase, where the defendant bears the burden of proof by a preponderance of the evidence.
[Citations.] ‘The separation of the two stages of the bifurcated trial is solely for the
purpose of keeping the issues of guilt and sanity distinct; for other purposes, the trial is
regarded as single and continuing.’ ” (Elmore, supra, 59 Cal.4th at pp. 140-141; see also
§ 1026, subd (a); Mills, supra, 55 Cal.4th at p. 672.)
       On appeal, we review the jury’s determination for substantial evidence. (People v.
Chavez (2008)160 Cal.App.4th 882, 891.) We view the evidence in the light most
favorable to the verdict and presume in support of the judgment the existence of every
fact the jury could reasonably deduce from the evidence. (People v. Kraft (2000) 23
Cal.4th 978, 1053.) In determining the issue of sanity, it is the role of the jury to evaluate
the expert opinions and the bases therefor. (Chavez, at p. 891; see also People v. Mercer
(1999) 70 Cal.App.4th 463, 466–467 [the “credibility of the experts and their
conclusions” are matters for determination by the jury].) Ultimately, “[b]ecause the
burden was on the defense to show by a preponderance of the evidence that appellant was
insane, before we can overturn the [jury’s] finding to the contrary, we must find as a
matter of law that the [jury] could not reasonably reject the evidence of insanity.”
(People v. Skinner (1986) 185 Cal.App.3d 1050, 1059; see also People v. Drew (1978) 22


statutory use of “and,” the intent in enacting the statute was to reinstate the M’Naghten
test in which insanity can be shown under either the “nature and quality” prong or the
“right from wrong” prong of the test.

                                                  6
Cal.3d 333, 351, superseded by statute on another ground as stated in People v. Skinner,
supra, 39 Cal.3d at p. 769 [“the question on appeal is” whether the evidence of insanity
was “of such weight and character that the jury could not reasonably reject it”].)7 Stated
differently, the question for this court is whether “there is any reasonable hypothesis upon
which the [jury] could have found [appellant] legally sane during the commission of the
crime.” (People v. Belcher (1969) 269 Cal.App.2d 215, 220; accord People v. Severance
(2006) 138 Cal.App.4th 305, 319.)
       B.     Factual Background
       During the sanity phase of trial, appellant presented testimony from two expert
witnesses, as described hereafter.
              1.     Dr. Robert Wagner
       Dr. Robert Wagner was appointed by the court to evaluate appellant. He has a
Ph.D. in clinical psychology. About half his practice involves mental evaluations; he has
been doing such work for over 20 years. Wagner’s primary sources of information were
a 90-minute interview with appellant, medical records from the county jail, and a 42-
minute conversation with appellant’s mother.
       Appellant’s mother told Wagner she felt there was something wrong with
appellant from when he was an infant. He did not have many friends and was in special
education classes for 10 years. Appellant’s father probably suffered from depression.
Appellant’s sister has been diagnosed with schizophrenia and is under the protection of a
conservator. Schizophrenia has a genetic origin.
       Appellant told Wagner he began to hear voices at about the age of 14. He did not
tell anyone, which is not unusual. Appellant began drinking alcohol at around the same


7
  In Drew, the California Supreme Court abandoned the M’Naghten test and adopted the
test for mental incapacity proposed by the American Law Institute. (Drew, supra, 22
Cal.3d at p. 345; see also Skinner, supra, 39 Cal.3d at p. 768.) Nevertheless, Drew
considered whether there was substantial evidence to support the jury’s finding under the
M’Naghten test because, if not, the defendant could have avoided a retrial. (Drew, at pp.
349–350.) Subsequently, the California electorate adopted an initiative measure that
reinstated the M’Naghten test. (Skinner, at pp. 768–769.)

                                             7
time he began having auditory hallucinations; people who hear voices often use alcohol
to self-medicate. Appellant described a prior occasion when he contemplated suicide
because a voice he referred to as “Dodger” commanded him to kill himself.
       Wagner concluded that Hernandez suffers from a “severe mental defect” called
“schizoaffective disorder.” Schizoaffective disorder is a combination of schizophrenia
with an emotional disorder, in this case depression. Wagner gave appellant a 35 on a
global assessment of functioning scale, which is “very low.” Wagner acknowledged
appellant was working around the time of the killing, but Wagner explained that many
jobs do not require a high level of functioning.
       Wagner always looks for malingering when doing mental evaluations. He did not
believe appellant was malingering because the level of impairment appellant described
was consistent with Wagner’s diagnosis; Wagner was able to confirm his diagnosis with
information provided by appellant’s mother and from medical records; and appellant’s
apparent low IQ suggested it would be difficult for him to fabricate mental illness.
       Appellant was unemotional when he described the killing. Appellant said
Harrison asked him to kill her, and he heard a voice he referred to as “Dodger” telling
him to kill her. At the time, appellant thought it was “the right thing to do,” but after
Harrison died he realized “almost right away that he had done something wrong.”
Appellant said he knows it was wrong to kill Harrison, and he feels sad about it. He also
told Wagner that Harrison has visited him in custody, that she looks happy, that they’re
still friends, and that she is waiting for him to join her.
       Wagner opined that at the time of the offense appellant was not able to understand
the nature and quality of his act and was unable to distinguish right from wrong. On
cross-examination, Wagner acknowledged he had not seen appellant’s police interviews
or heard the 911 call. When questioned about various statements appellant made in the
course of his police interviews, Wagner acknowledged the statements showed appellant
knew what he did was wrong at the time of the interviews. When questioned about
appellant’s statement that he told Harrison he would get in trouble if he killed her,
Wagner said the comment was “taking place in the context of what I think is a delusional


                                                8
situation between the two of them.” Wagner said it might affect his analysis if appellant
had tried to sexually assault Harrison in the past or if Harrison denied any interest in a
romantic relationship with appellant.
       On questioning by the court, Wagner testified his opinion was premised on a belief
appellant was telling the truth when he said Harrison asked him to kill her. His opinion
probably would be different if he did not believe appellant on that point.
              2.     Dr. Randall Solomon
       Dr. Randall Solomon is a medical doctor who practices forensic psychiatry.
Solomon evaluated appellant at defense counsel’s request. He interviewed appellant for
six hours over three separate occasions. He also relied on police reports, interview
reports, video-recordings of the police interviews, Dr. Wagner’s report and the report of
another court-appointed psychiatrist,8 appellant’s school and jail records, and a meeting
with appellant’s mother.
       In his testimony, Solomon related various details about appellant’s childhood and
schooling. Appellant told him that he started hearing voices when he was in seventh
grade. He avoided interaction with others, used drugs to quiet the voices, and rocked
back and forth to soothe himself. Appellant dropped out of school in tenth grade; he was
not sure if people were making fun of him, but the voices were telling him they were.
There were multiple voices that appellant heard: two were of the same person, whom he
called “Dodger”; another “voice” was just a presence that did not speak; and at the time
of the interview he also heard Harrison’s voice in his head.
       At age 18, appellant had suicidal thoughts because the voices told him to kill
himself. About two months before he killed Harrison, the voices told appellant to go to a
cemetery with a knife and kill himself; he was not able to do it. Some months before the
killing, the voices began to tell him that he would have to kill Harrison, but he did not
know why.


8
 Dr. Murray Eiland was another doctor appointed by the court. He also concluded
appellant was insane at the time of the offense, but did not testify at trial.

                                              9
       Appellant told Solomon that he and Harrison were drinking on the day of the
killing. Harrison told Hernandez to kill her; at one point she taunted him, saying “bitch,
you can’t do it.” He wasn’t able to choke her, so he obtained a knife. Appellant and
Harrison struggled with the knife. The voices were very loud, and kept saying “stab,
stab, stab.” Appellant stabbed Harrison; the knife got stuck, so he had to work to get it
out. The voices told him he had to kill himself, but he was unable to do it.
       Appellant did not show much emotion during the interviews with Solomon.
Solomon explained that the inability to relate emotionally is a classic symptom of
schizophrenia. Appellant also exhibited an inability to grasp abstract concepts and a
looseness of association, meaning that when he spoke he would change topics and it
would be difficult to figure out the connection. Solomon diagnosed appellant with
schizophrenia, alcohol dependency, and marijuana and methamphetamine abuse. Within
the range of schizophrenics, appellant is fairly high functioning. Solomon saw “no
evidence” that appellant was malingering; he exhibited the signs and symptoms of
schizophrenia, and appellant’s background and life story were consistent with that
diagnosis. Solomon was “very confident” in his diagnosis.
       Solomon opined that appellant was unable to differentiate right from wrong at the
time of the killing. Appellant knew he was killing Harrison, but he did not understand
the distinction between a “release” and a death. What appellant said after the crime
would be relevant only if his statements referred to his mental state at the time of the
crime. Solomon opined that appellant realized it was wrong immediately after he killed
Harrison. Solomon explained, “once the act was committed, he had a reality in front of
him and now he wasn’t dealing with a picture of something influenced by voices,
ambivalent thoughts, everything that was going on, he had a dead body, and he was able
to recognize that he had a dead body, and then he knew what happened.”
       On questioning by the court, Solomon testified that, even if the events appellant
described in his police interview did not occur, Solomon would still believe appellant was
insane at the time of the crime, because Solomon was “pretty firm in [his] conviction that
this is how [appellant] understands it.”


                                             10
       C.     Analysis
       Appellant contends the evidence of his insanity was of such weight and character
that the jury could not reasonably reject it. In particular, two expert witnesses testified
appellant was insane, and the prosecution presented no expert testimony to the contrary.
       Appellant first emphasizes that the overwhelming weight of the evidence was that
appellant has schizophrenia. We need not consider whether the evidence obligated the
jury to agree because, assuming appellant is a schizophrenic, that does not mean he was
legally insane at the time he killed Harrison. (Mills, supra, 55 Cal.4th at p. 672 [“a
defendant may suffer from a diagnosable mental illness without being legally insane”].)
The ultimate issue is whether, due to his mental illness, appellant was unable to
understand the nature of his action or to distinguish right from wrong when he killed
Harrison. (Elmore, supra, 59 Cal.4th at 140.) Appellant concedes there is sufficient
evidence that he understood the nature of his act, so the real determinative issue is
whether he was able to appreciate the wrongfulness of the act. (See People v. Blakely
(2014) 230 Cal.App.4th 771, 779 [“While we acknowledge [defendant] presented
evidence that he suffered from paranoid schizophrenia, he did not present sufficient
evidence for the jury to reasonably conclude he was incapable of distinguishing the moral
rightness or wrongness of his actions when he attacked and robbed [the victim].”].)
       There was little direct evidence of appellant’s state of mind at the time of the
killing. Appellant’s experts concluded appellant was unable to distinguish right from
wrong based essentially on appellant’s diagnosis as a schizophrenic and an assumption
that appellant was telling the truth about what happened or believed he was telling the
truth. The one piece of evidence that is directly reflective of appellant’s state of mind is
his statement to the police that he told Harrison he would get in trouble if he killed her.
Appellant argues that statement “suggested, at most, the knowledge that killing Harrison
was legally wrong; it did not suggest an understanding that it was morally wrong.” We
agree the statement is not an unambiguous admission that appellant knew killing Harrison
was morally wrong. It can be construed narrowly to mean only that appellant knew it
was contrary to the law. (Skinner, supra, 39 Cal.3d at p. 783 [“a defendant who is


                                             11
incapable of understanding that his act is morally wrong is not criminally liable merely
because he knows the act is unlawful”]; see also People v. Torres (2005) 127 Cal.App.4th
1391, 1401–1402 (Torres).)9 On the other hand, the jury reasonably could infer that
appellant’s admission he made that comment to Harrison meant appellant was not
incapable of moral reflection at the time of the killing. To find appellant insane in light
of that comment required the jury to accept that, despite the fact that appellant was aware
of the nature of his act and was able to recognize it was not an action sanctioned by law,
his mental illness rendered him entirely unable to assess whether the act was moral.
Appellant points to nothing in the expert witnesses’ testimony that explained how
schizophrenia could produce such a nuanced mental state, or how it might have in the
present case.
       In any event, even putting appellant’s comment to Harrison aside, the jury could
have been skeptical appellant killed Harrison under the influence of a schizophrenic
delusion due to the absence of corroboration in appellant’s statements and behavior
following the killing. Appellant never mentioned to the police or the sexual assault
examination (SART) nurse that he had been hearing voices the night of the killing, and he
did not tell jail officials about hearing voices for six months. Dr. Solomon testified he
would not have expected appellant to mention hearing voices to the police, and, to the
contrary, he would have been suspicious had appellant done so. However, that testimony
did not preclude the jury from making its own assessment of that circumstance.
Furthermore, appellant did not display what Solomon described as typical behavior for
schizophrenics in the first police interview following the killing, such as disorganized or
incoherent speech, rocking, or catatonic behavior. Appellant demonstrated an
understanding of what he had done and that it was wrong. He was also calm and

9
  In Skinner, the People suggested the evidence showed the defendant was aware his
killing was unlawful, even though he believed it was commanded by God. (Skinner,
supra, 39 Cal.3d at p. 783.) In Torres, the defendant presented evidence he felt morally
justified in shooting doctors he believed, as a result of a delusion, were poisoning him
and others, even though he was aware his conduct would be considered wrong by society.
(Torres, supra, 127 Cal.App.4th at p. 1402.)

                                             12
cooperative when examined by the SART nurse hours after the murder. Appellant’s
experts testified they believed appellant regained his sanity after the killing. But that did
not preclude the jurors from considering the lack of corroboration in appellant’s behavior
following the killing in determining whether he was sane at the time of the crime. (See,
e.g., People v. Skinner, supra, 185 Cal.App.3d at p. 1051 [defendant’s behavior following
killing and statements “exhibiting extreme remorse and a clear understanding of what he
had done” supported finding defendant was sane at time of killing].)
       Moreover, appellant fails to seriously engage with the possibility that the jury
believed appellant was lying about what happened the night of the killing. There is a
likelihood the jury believed that appellant sexually assaulted Harrison (or attempted to do
so) and that Harrison did not ask appellant to kill her. There was evidence from which
the jury could infer that appellant had tried to sexually assault Harrison in the past and
that she was uninterested in appellant romantically. That evidence was contrary to
appellant’s claims of a romantic relationship with Harrison. There was physical evidence
suggestive of violence (injuries on both appellant and Harrison) and rough sexual contact
(the abrasions on appellant’s penis), as well as evidence suggesting the killing was
accomplished in a particularly violent manner (repeated knife thrusts). Other than
appellant’s statements, there is no evidence Harrison wanted to end her life at around the
time of her killing. If the jury concluded appellant was lying about the events
surrounding the killing, the jury reasonably could have inferred the lies were inconsistent
with a conclusion appellant was insane at the time of the killing. Instead, the jury
reasonably could have concluded appellant killed Harrison in a fit of drunken violent
anger after her rejection of a romantic advance and then invented the story about the
voices in his head and the suicide pact in order to diminish his culpability. The fact that
appellant turned himself in reasonably could be given little weight, since appellant would
have been the obvious suspect in any event.10

10
  It is worth noting that appellant’s descriptions of the killing were not entirely
consistent. Appellant told the police and the testifying experts that Harrison asked him to
kill her. But appellant told the non-testifying appointed doctor Eiland that voices alone

                                             13
       The experts were asked what effect it would have on their opinion if appellant was
lying. Dr. Wagner admitted it would probably affect his opinion. Dr. Solomon denied it
would affect his opinion, explaining that he was not searching for a motive and re-
asserting that he believed appellant’s story was how appellant understood what occurred.
But appellant points to no testimony explaining how a conclusion he was insane is
consistent with a scenario in which he killed Harrison in a sexually-related violent attack
and then invented a story about a suicide pact. Thus, the expert testimony left a huge
analytic gap. Neither does appellant point to any testimony explaining how appellant’s
schizophrenia might have led appellant to commit a violent murder during a sexual
assault. There was no hypothesis offered of how such a killing could occur without
appellant understanding its wrongfulness, much less a hypothesis that the jury was
obligated to accept. (See Blakely, supra, 230 Cal.App.4th at p. 779 [trial court properly
directed a verdict of sanity where experts failed to explain what defendant “believed or
did not believe was morally correct at the time he attacked” the victim].)
       Ultimately, appellant’s contention fails because “expert testimony, even if
uncontradicted, is not binding on the trier of fact, and may be rejected, especially where
experts are asked to speculate about a defendant’s state of mind at the moment the crime
was committed.” (People v. Green (1984) 163 Cal.App.3d 239, 243; see also Drew,
supra, 22 Cal.3d at p. 350 [“we have frequently upheld on appeal verdicts which find a
defendant to be sane in the face of contrary unanimous expert opinion”].)11 Instead,
“[t]he trier of fact may consider the reasons given for expert opinions, and may weigh
expert testimony with all of the evidence including the circumstances before, during, and
after the offenses.” (Green, at p. 244.) In the present case, the experts based their
opinion about appellant’s sanity at the time of the offense almost entirely upon their
diagnosis that he was a schizophrenic and their belief that the killing as he described it

told him to kill Harrison, that nothing she did brought about the killing, and that he
formed the intent to kill her over a period of weeks or possibly months.
11
   As the Supreme Court pointed out in Drew, a defendant’s mental state at the moment
of a crime “is not a matter which psychiatrists can detect by testing or interview.” (Drew,
supra, 22 Cal.3d at p. 351.)

                                             14
was consistent with that diagnosis. But, assuming the jury accepted the diagnosis, the
jury was entitled to consider the totality of the evidence surrounding the crime in
deciding whether appellant proved he was legally insane at the time of the killing.
       We conclude the evidence at trial did not obligate the jury to conclude that
appellant met his “burden of proving, by a preponderance of the evidence, that he was
legally insane when he” killed Harrison. (Mills, supra, 55 Cal.4th at p. 672.)12
II.    The Trial Court’s Questions to Appellant’s Experts Were Not Prejudicial Error
       Over objections from appellant, the trial court questioned appellant’s experts after
the prosecutor had cross-examined them. Appellant contends the court’s questions were
adversarial, repetitive of the prosecutor’s questions, and misleading. He argues the
questioning “created the impression that the judge was ‘allying himself with the
prosecution,’ violating [appellant’s] rights under state law and the state and federal
constitutions. (People v. Harris (2005) 37 Cal.4th 310, 347 [(Harris)]; U.S. Const., 14th
Amend.; Cal. Const., art. I, §§ 7, 15, 16.)”
       A.     Factual Background
              1.     Questioning of Dr. Wagner
       At the end of Dr. Wagner’s testimony, the trial court asked a series of questions,
with the preface, “Well, I have a couple of questions I’d like to ask you, Doctor, just so I
understand this.” The court confirmed that Wagner spoke only to appellant and his
mother, and asked about the length and circumstances of the conversation with
appellant’s mother and the length of the interview with appellant. The court also
confirmed Wagner did not rely on any additional materials, other than those

12
   People v. Duckett (1984) 162 Cal.App.3d 1115, is not to the contrary. There, the court
of appeal concluded the jury could not reasonably reject the evidence of insanity, which
included evidence of a history of violence related to the defendant’s mental illness and
testimony from a non-relative that, before commission of the murder at issue, the
defendant described seeing demons, was obsessed with the victim, said she was a
“witch,” and threatened to kill her. (Id. at p. 1120.) But similar evidence is not present in
this case, and Duckett acknowledges “[a] jury may reasonably reject psychiatric
testimony on the ground that the psychiatrists did not present sufficient material and
reasoning to justify their opinions.” (Id. at p. 1119.)

                                               15
conversations and the jail records. In particular, the court confirmed that Wagner did not
have the transcripts of the police interviews and 911 call before he wrote his report.
Appellant’s counsel objected, and the court overruled the objection. The court said it was
“entitled” to ask “clarify[ing]” questions, and “[w]e’re all trying to get to one thing and
that’s . . . the correct decision here.”
       The trial court continued to question Dr. Wagner, stating, “the other thing I wanted
to ask you is this, your opinion is the defendant did not understand what he was doing
was wrong when he stabbed the decedent, the victim?” Wagner responded that appellant
did not understand “in the moment,” and the court asked, “But almost immediately after
when he recognized that she was dead he did realize what he had done was wrong?”
Wagner responded affirmatively and the court asked, “how do you explain . . . this pact
that the defendant says he entered with the victim because he was worried about what he
was going to do was wrong so he was going to kill himself?” Wagner said, “Right. I see
what you’re saying,” and the court asked, “Doesn’t that show that before he did this he
knew it was wrong?”
       Appellant’s counsel objected and, after the court noted the objection and asked for
an answer, Dr. Wagner stated, “The entire notion to me of a pact, a murder-suicide pact,
is delusional, um, that rational people don’t do that sort of thing. Um, so perhaps that
explains to me why even though questions of right and wrong may come up in the
context of something like that, it isn’t until after the horrible event happens that people,
so to speak, snap out of it or come back to reality now.” The court said “all right” and
then asked, “I guess then the last thing I’d like to know is all of these opinions that you
have are premised on . . . believing that the defendant’s version of how this occurred is
true?” Wagner answered affirmatively and the court followed up, “What I mean by that
is, it’s premised on believing that the victim asked the defendant to kill her?” Wagner
answered affirmatively, and the court asked, “And if . . . hypothetically . . . you did not
believe . . . [t]hat that was true, would your opinion be different?” Wagner responded, “I
would most definitely have to think about that, yes.” Finally, the court asked, “Well,
what does that mean? Would your opinion be different, or would you just want to think


                                              16
about it?” Wagner responded, “I’m going to have to leave it at I would have to think
about it, and it probably would be different, yes.”
       On redirect, defense counsel, among other things, elicited from Dr. Wagner that
none of the questions posed by the trial court had changed his opinion appellant was
insane at the time of the crime.
              2.      Questioning of Dr. Solomon
       At the end of Dr. Solomon’s testimony, the trial court asked a series of questions,
starting with, “Am I correct in understanding that in your opinion the explanation that
[appellant] gave to the police in the interviews has nothing to do with whether or not in
your opinion he was insane at the time he committed this offense?” Solomon hesitated
and started saying “the pieces that help me understand that,” and the court said, “Can you
just answer the question? Did I understand you correctly to say it doesn’t matter whether
what he was saying was true or not, in your opinion?” Solomon asked, “Which part was
true?” and the court responded, “The entire explanation that he gave, that he was doing
this because, um, the victim had asked him to do it . . . that they had been in this
consensual gathering and that they were drinking and that after a period of time she
became depressed and asked him to kill her, that he initially attempted to strangle her,
then she asked him to stab her, he explained he felt he might get in trouble, . . . they
agreed that, well, if he killed himself, then there would be no consequence to him, no
penalty, he thought that sounded okay, so he went ahead and stabbed her?”
       Appellant’s counsel objected that the question was not presented as a hypothetical,
and the court confirmed with Dr. Solomon that the facts the court described are what
appellant described to Solomon. The court asked, “Is it your testimony today that it
doesn’t matter whether any of that was true or not, he still is insane at the time he
committed this offense?” After some back and forth the court clarified its question,
asking “I’m saying, . . . hypothetically if none of that is true, none of it, and he killed her,
for example, hypothetically, in a sexual assault . . . .” Appellant’s counsel again objected
and was overruled. After a brief further exchange, Solomon answered, “Yes. Because
I’m pretty firm in my conviction that this is how he understands it. Although, uh, each


                                               17
time he talked about it, more details come out. But it doesn’t change the overall
opinion.” The court concluded that line of questioning by stating, “Okay. So - - all right.
So I understand that, and I just wanted to make sure.”
       The court then began another line of questioning, asking, “Secondly, you referred
several times in making your diagnosis and coming to these conclusion[s] it was
important you thought that he had been consistent in his story?” Dr. Solomon answered
affirmatively and, over another objection, the court asked Solomon whether he had asked
appellant why appellant did not mention hearing voices to the police. Solomon
answered, “Um, actually I thought I had the answer already to that. It didn’t occur to ask
that. He had already explained—he explained several times that every time he’s brought
up voices he’s pretty much discounted and so he tends to hide that. I would not have
expected him to bring that up voluntarily. It comes up in a different kind of interview.
The fact that he didn’t bring it up in this particular context is consistent with what I
would expect someone in his position to have done.” The court followed up with the
question, “When they’re explaining why they committed a murder?” Solomon answered,
“if he brought it up and emphasized it there, I would be more concerned that he was
fabricating, so I sort of see it the opposite.” The court said, “All right. Thank you,” and
offered the parties an opportunity to follow up, which they both declined.
              3.      Questions from the Jury, Deliberations, and New Trial Motion
       The trial court instructed the jurors with CALCRIM No. 3550, which states in
relevant part, “It is not my role to tell you what your verdict should be. Do not take
anything I said or did during this trial as an indication of what I think about the facts, the
witnesses or what I think your verdict should be.” During deliberations, the jury sent the
trial court a note asking, “Your Honor, in CALCRIM 222 it states, nothing attorneys ask,
discuss or remarks are evidence. However, can we take into consideration while
deliberating your comments and/or questions to the witnesses?” CALCRIM No. 222
states in part, “Nothing that the attorneys say is evidence. . . . Their questions are not
evidence. Only the witnesses’ answers are evidence. The attorneys’ questions are
significant only if they helped you to understand the witnesses’ answers. Do not assume


                                              18
that something is true just because one of the attorneys asked a question that suggested it
was true.” After consultation with counsel, the court responded, “Neither the questions
of the Attorneys or the Court are evidence—They may only be considered to help you
understand the witnesses[’] answers. It is the testimony of the witnesses that you should
consider as evidence.”
       Subsequently, the jury sent a second note stating, “We are looking to find out what
Dr. Wagner based his opinion on. So we’d like to hear when he was examined by [the
prosecutor] and when he was questioned by the judge.” Appellant’s counsel moved for a
mistrial, arguing that the court’s “very pointed” questioning of the experts had led “the
jury to conclude that the Court’s opinion is that [appellant] was not being truthful to the
doctors.” The trial court denied the motion. Appellant’s counsel requested that the read-
back include the direct examination as well. The court told the jury, “Unless you
specifically tell me that you don’t want to hear the direct testimony as well, I would be
inclined to have you listen to the direct and cross-examination of Dr. Wagner so that you
hear perhaps all of the reasons that are given. . . . [T]here may be some reasons raised by
[the prosecutor] and other reasons that were raised by the defense.” The jury chose to
hear the entire examination read back.
       The court also told the jury, “The other thing I want to remind you, folks, and I’m
going to do this because both of your questions have touched a little bit on the questions
that the Court asked during this sanity phase, so I want to remind you again of the
following, that it is not my role to tell you what the verdict should be, and you are not to
take anything that I said or did during the trial as an indication of what I think about the
facts, the witnesses or what your verdict should be. So I just want to remind you of that.”
After explaining the read-back procedure, the trial court again admonished jurors before
they returned to deliberations, “And please keep in mind again that the evidence is the
testimony of the witness. The questions that are being asked to the witness are significant
only as it helps you understand the answers.”
       Later, the jury indicated to the trial court that they wanted to “skip further a little
forward” after having heard the read-back of part of the first day of the direct


                                              19
examination of Dr. Wagner. The court instructed the jurors to identify the areas they
wished to have the court reporter cover the next day, because the attorneys needed to
know what portions were being read back. Subsequently, apparently without any
additional read-back, the jury reached a verdict finding appellant was sane when he killed
Harrison.
       Appellant moved for a new sanity trial based on the purported impropriety of the
trial court’s questions to the two experts. The court denied the motion, noting that it set
forth questions to the witnesses for purposes of clarification pursuant to its “right and
obligation” to do so. The court explained that it felt a lot of the issues it raised got “lost”
in the extensive questioning from the parties. The court asked the doctors about the
significance of the plausibility of appellant’s story “because . . . the jury is entitled to
know exactly what it is the doctors are basing their opinions on, and . . . the state of the
record before [the court] asked the questions was very confusing.”
       B.     Analysis
       “Evidence Code section 775 ‘ “ ‘confers upon the trial judge the power, discretion
and affirmative duty . . . [to] participate in the examination of witnesses whenever he
believes that he may fairly aid in eliciting the truth, in preventing misunderstanding, in
clarifying the testimony or covering omissions, in allowing a witness his right of
explanation, and in eliciting facts material to a just determination of the cause.’ ”
[Citation.] . . . The constraints on the trial judge’s questioning of witnesses in the
presence of a jury are akin to the limitations on the court’s role as commentator. The trial
judge’s interrogation “must be . . . temperate, nonargumentative, and scrupulously fair.
The trial court may not . . . withdraw material evidence from the jury’s consideration,
distort the record, expressly or impliedly direct a verdict, or otherwise usurp the jury’s
ultimate factfinding power.” ’ ” (Harris, supra, 37 Cal.4th at p. 350.)13 The court may


13
  Evidence Code section 775 states, “The court, on its own motion or on the motion of
any party, may call witnesses and interrogate them the same as if they had been produced
by a party to the action, and the parties may object to the questions asked and the
evidence adduced the same as if such witnesses were called and examined by an adverse

                                               20
not “assume the role of either the prosecution or of the defense.” (People v. Cook (2006)
39 Cal.4th 566, 597.) “ ‘ “Ordinarily the proper course . . . is to allow the examination by
counsel—direct, cross, redirect and recross—to conclude, and then if anything in the
judgment of the trial court remains obscure, which may be material for the jury to know
. . . the trial court may . . . intervene.” ’ [Citation.] The examination should be
‘conducted impartially, so that the jury will not receive improper inferences as to the
judge’s opinions on the case.’ ” (People v. Camacho (1993) 19 Cal.App.4th 1737, 1744–
1745.)
         Appellant contends the trial court’s questioning was improper because the court
effectively allied itself with the prosecution, due to the manner of the court’s questions
and because the court’s questions “essentially replicated questions by the prosecutor on
cross-examination.” As to the second point, appellant cites no authority that a court
oversteps its authority under Evidence Code section 775 merely by asking questions that
are arguably duplicative of those asked by a party. The trial court explained it believed
that some of the points had become lost or confused in the extensive questioning by the
parties. The court did not err in seeking clarification in its questioning, even if a
thorough re-examination of the previous questioning could have uncovered the same
information. Furthermore, appellant has not shown that all of the areas covered by the
court were covered in the prior questioning. For example, appellant points to no portions
of the prior questioning where appellant’s counsel or the prosecutor elicited clear
responses from the experts regarding the extent to which their opinions depended on the
truth of appellant’s description of the killing.14 For another example, appellant points to


party. Such witnesses may be cross-examined by all parties to the action in such order as
the court directs.”
14
   The prosecutor elicited testimony from Dr. Solomon that he believed appellant
believed Harrison asked to be killed. But the trial court’s questioning attempted to clarify
more broadly whether it would affect Solomon’s opinion if the killing in fact did not
occur in the manner appellant described (i.e., if the evidence showed the killing occurred
during or following a sexual assault, although the trial court’s questions were not so
pointed). The court’s questioning was not repetitive. Indeed, even the court was unable
to elicit a clear answer on the issue.

                                              21
no portion of the cross-examination where the prosecutor asked Dr. Solomon whether he
asked appellant why appellant did not mention hearing voices to the police, which is the
initial question posed by the court on that subject.
       Appellant also asserts that, to the extent the trial court’s questioning elicited new
information, it was all adverse to appellant. We agree the answers elicited by the trial
court were largely unfavorable to appellant. However, that was not due to the manner of
the court’s questioning—the court was persistent in its effort to get answers to its
questions, but the questions were largely neutrally phrased and the questioning was not
unduly adversarial or prolonged. (Cf. People v. Santana (2000) 80 Cal.App.4th 1194,
1207 [“the trial court repetitiously, disparagingly and prejudicially questioned defense
witnesses” and its questioning “consumed more time than was necessary to elicit the
point the trial court sought to make”].) To the extent the court’s questions were
damaging to appellant, it was because the court’s questions exposed that the experts were
unable to adequately explain how their opinion that appellant was insane at the time of
the killing could still be the same if the killing actually occurred during a sexual assault.
As explained previously (Part I, ante), that was an important issue in the case. As it was
left unclear during the parties’ examination of the experts, the trial court properly sought
to determine in its questioning to what extent the truth or falsity of appellant’s story was
relevant to the experts’ opinions.15 For example, in questioning Dr. Solomon, the court


15
  Appellant also complains that the court, in its questioning of Dr. Wagner, misleadingly
suggested appellant had said before the killing that he knew it was wrong. As explained
previously (Part I, ante), appellant’s statement that he could get in “trouble” did not
unambiguously indicate an awareness of moral wrongfulness, but it did suggest a level of
mental functioning that arguably undermined appellant’s claim of insanity. In any event,
the trial court’s questioning in that respect was not prejudicial. The trial court instructed
the jury not to take the court’s questions as reflecting its view of the facts and that its
questions were not evidence. (See People v. Cook, supra, 39 Cal.4th at p. 598
[emphasizing that jury was instructed “of the trial judge’s role as an impartial presiding
officer whose occasional questions to witnesses were designed to clarify the evidence
without favoring either side”].) Moreover, the trial court instructed the jury that a finding
of insanity could be based on appellant’s inability to understand his act was morally or
legally wrong. (See Part V, post.) We presume the jury followed all those instructions.

                                              22
persisted in that line of questioning until Solomon explained his opinion did not depend
on whether appellant’s version of events was what actually happened because Solomon
was “pretty firm in [his] conviction that this is how [appellant] understands it.” Although
that answer left unclear how appellant’s schizophrenia might have led him to commit a
violent murder during a sexual assault, the trial court did not press the point. Instead, the
court said, “Okay. So - - all right. So I understand that, and I just wanted to make sure.”
       In any event, even if certain of the trial court’s questions were improper due to
their tone or repetitive nature, it is not reasonably probable the result would have been
more favorable to appellant absent the impropriety. (Harris, supra, 37 Cal.4th at pp.
350–351 [applying reasonable probability standard of People v. Watson (1956) 46 Cal.2d
818 to similar claim].)16 We recognize many of the questions posed by the trial court
were significant because they touched on the heart of appellant’s claim of insanity; such
questioning is perilous and should be undertaken with great caution. However, any
adverse effect on appellant was due to the experts’ inability to provide adequate answers,
not to the manner of the questioning. (See People v. Cook, supra, 39 Cal.4th at p. 598
[“Although answers by two witnesses . . . to the trial court’s questions may not have been
favorable to the defense, the questions themselves did not create the impression that the
court was allied with the prosecution.”].) In particular, as explained in Part I, the expert
testimony left a huge analytic gap because the experts failed to explain how a conclusion


(People v. Sanchez (2001) 26 Cal.4th 834, 852.) For the same reasons, we reject
appellant’s contention that the trial court’s questions misled the jury as to the legal
standard governing the sanity determination.
16
   In People v. Cook, supra, 39 Cal.4th 566, the Court stated in regard to a similar claim,
“even were we to assume the court’s questions were improper, any error was harmless
beyond a reasonable doubt.” (Id. at p. 599, citing Chapman v. California (1967) 386 U.S.
18, 24.) Cook did not actually decide whether the Chapman standard of review applies to
claims of improper judicial questioning and did not question its application of the Watson
standard of review in Harris, decided one year before. (Cook, at p. 599; Harris, supra,
37 Cal.4th at pp. 350–351.) Because any impropriety in the court’s questioning did not
deprive appellant of a fair trial in violation of the federal constitution, we follow Harris
in applying the Watson standard for review of state law error. But our conclusion would
be the same under either standard of review.

                                             23
appellant was insane is consistent with a scenario in which appellant killed Harrison in a
sexually-related violent attack and then invented a story about a suicide pact. The trial
court’s questions were not calculated to pointedly expose that gap, but the court did
properly seek clarification on how it would affect the experts’ opinions if the killing did
not occur in the manner appellant claimed. Any improper aspects of the trial court’s
questions were harmless, particularly in light of the court’s very clear instruction not to
take anything it said “as an indication of what [it thought] about the facts, the witnesses
or what [the jury’s] verdict should be.” (See Cook, at p. 598 [relying on similar
instruction in prejudice analysis]; Harris, at pp. 350–351 [same].)
III.   Appellant Has Not Shown the Prosecutor’s Questioning Regarding A Publication
       Not in Evidence Was Reversible Error
       During the cross-examination of Dr. Wagner in the sanity trial, the prosecutor
asked a series of questions about the difficulty in determining whether a patient is
malingering. The prosecutor asked Wagner if he agreed “studies have shown that it’s
fairly easy to fake certain mental illnesses.” Wagner responded in part, “I don’t know
that it’s easy to do that. I would have to be familiar with the studies. I’ve seen people try
to fake illnesses, and it was pretty bad. I’ve seen other people do it, and they’re really
quite good. I’m not familiar with the—maybe you have the data on that. I don’t know.”
The prosecutor then asked Wagner whether he would agree there is “considerable
controversy amongst psychologist[s] about accurately being even able to . . . diagnose
mental illness.” Wagner responded that he would not say there is “a lot of disagreement
about it.”
       The prosecutor then proceeded to ask Dr. Wagner whether he was familiar with
three particular publications and/or studies. Wagner testified he had not read the first
book the prosecutor mentioned. The prosecutor then asked, “Are you familiar with the
works of Margaret Hagen?” Wagner said he had heard her name before. The prosecutor
then asked, “She wrote a book called Whores of the Courts, and she talks about
psychiatric testimony in the courtroom and how it’s really difficult basically to . . .
predict somebody’s mental state?” Defense counsel objected “to counsel testifying,” and


                                              24
the trial court overruled because it was a “hypothetical question.” Following a second
identical objection, Wagner proceeded to acknowledge it is “hard” to determine
somebody’s state of mind at a particular moment. The prosecutor then asked Wagner
about a study involving people faking mental illness; Wagner said he was aware of the
study.
         On appeal, appellant contends the trial court erred in permitting the prosecutor to
ask Dr. Wagner about Margaret Hagen’s book because it permitted the prosecution to
“introduce the hearsay opinion of a nontestifying witness—Margaret Hagen—that it is
very difficult to assess a person’s mental state at the time of a crime, as well as her
apparent opinion that experts who attempt to do so are ‘whores.’ ” He contends the
questioning violated Evidence Code section 721, which prohibits cross-examination of an
expert on the content of a publication unless the witness relied on the publication, it has
been admitted in evidence, or it has been established as a reliable authority. (See also
McGarity v. Department of Transportation (1992) 8 Cal.App.4th 677, 683.)17
         Assuming the trial court erred (see People v. Visciotti, supra, 2 Cal.4th at p. 81), it
is not reasonably probable appellant would have obtained a more favorable result absent
the error (People v. Watson, supra, 46 Cal.2d at p. 836).18 Dr. Wagner agreed with the
proposition that it is difficult to determine someone’s mental state, without hesitation. He
explained, “I think that these are very difficult cases to know . . . exactly the state of the
mind of any us when we are doing anything, but particularly in this particularly high
stakes, if you will, situation. It is hard.” Because Wagner readily agreed with the point,


17
   We reject the People’s contention that the claim has been forfeited because appellant’s
counsel failed to refer to Evidence Code section 721 in stating his objection. The
objection that the prosecutor was “testifying” adequately communicated to the trial court
that the concern was that the questioning improperly put the non-testifying expert’s
opinion before the jury. (See People v. Visciotti (1992) 2 Cal.4th 1, 81 [discussing
Evidence Code section 721 objection and stating, “party may not by its questions testify
regarding the content of that material”]; cf. People v. Demetrulias (2006) 39 Cal.4th 1, 22
[counsel “cannot make a ‘placeholder’ objection stating general or incorrect grounds”].)
18
   We reject appellant’s assertion that any error in admitting the reference to Hagen’s
book violated appellant’s federal constitutional rights to due process and a fair trial.

                                               25
there is no basis to conclude the prosecutor’s brief reference to Hagen’s conclusion
caused appellant any prejudice. (See McGarity, supra, 8 Cal.App.4th at p. 683
[explaining that the primary purpose of Evidence Code section 721, subdivision (b) is “to
prevent an adverse party from getting before the trier of fact the inadmissible hearsay
views of an absent expert, which may be contrary to the expert witness’ opinion”]
(emphasis added).)
       Further, the title of the book alone, without elaboration, did not communicate any
clear message to the jury. Even assuming the jury linked the title to experts, there was no
basis to infer whether Hagen believed all experts were “whores” or only certain experts in
certain circumstances. Further, there is no reason to believe the jury gave any weight to
any message implied by the title. Notably, the jury was aware that the testifying witness,
Dr. Wagner, was appointed by the court rather than retained by the defense.19 And there
is no basis to conclude the jury would have had the title of Hagen’s book in mind in
considering the subsequent testimony of the expert the defense did retain, Dr. Solomon.
The prosecutor argued in her closing that Solomon’s testimony was less reliable because
he was a paid witness; that argument was not meaningfully more potent simply because
the jury heard there was a book titled Whores of the Court.
       Because any error was harmless, appellant’s claim fails.
IV.    Appellant Has Not Shown The Prosecutor’s Questioning About Appellant’s
       Motivation to Lie Was Improper
       During the sanity trial cross-examination of Dr. Solomon, the prosecutor asked
whether appellant had a motive to lie to the doctor. Solomon responded that, since
appellant “never said to me that he was trying to evade culpability or guilt, I’m not sure
what the purpose of him lying would be.” The prosecutor asked whether a person facing
murder charges would have a motive to lie to avoid going to prison. Solomon responded
that appellant might be an “exception” because appellant said he expected to go to prison

19
   Because the significance of the title was unclear and did not, in any event, appear to
apply to Dr. Wagner, we reject appellant’s assertion that the questioning was equivalent
to permitting Hagen to opine on Wagner’s credibility.

                                            26
and should be sent to the gas chamber for killing Harrison. The prosecutor asked whether
the fact that defendant pled not guilty by reason of insanity showed that appellant had
changed his mind about going to prison. Defense counsel objected on the basis that the
prosecutor was “arguing punishment.” The trial court overruled the objection, reasoning
“the matter under question is whether . . . the doctor feels [appellant] had a motive to lie.
If the doctor doesn’t think there’s any difference between prison and a hospital setting,
then the . . . prosecution is entitled to go into that.” The prosecutor then asked, “you’re
saying that . . . you think that he demonstrated that he wanted to go to prison, right?”
Solomon responded that appellant expected to be imprisoned and was not asking to be
released. The prosecutor then obtained Solomon’s agreement that “[a]t this point
[appellant has] entered a plea of . . . not guilty by reason of insanity” and “that’s the
difference between going to State Prison and a hospital.”
       On appeal, appellant contends the prosecutor’s questioning was improper because
it effectively “invited jurors to draw an adverse inference from [appellant’s] entry of a
plea of not guilty by reason of insanity, his presentation of an insanity defense, and his
exercise of his right to a jury trial on this issue. . . . [T]he prosecutor here suggested
that jurors infer, from [appellant’s] insanity plea, that he had a motive to lie.” (See
United States v. Whitten (2d Cir. 2010) 610 F.3d 168, 194–196 (Whitten) [prosecutor
improperly used the defendant’s demand for a trial as evidence of lack of remorse and
refusal to accept responsibility].)
       “Under the ‘unconstitutional conditions doctrine,’ ‘the government may not do
indirectly what it cannot do directly.’ [Citation.] The doctrine keeps the prosecution
from ‘trench[ing] on [a] defendant’s constitutional rights and privileges.’ [Citation.]
‘The prosecution cannot use the defendant’s exercise of specific fundamental
constitutional guarantees against him at trial.’ ” (Whitten, supra, 610 F.3d at p. 194.)
Although the United States Supreme Court has not ruled on whether the federal
constitution mandates that states provide defendants an insanity defense (Clark v.
Arizona, supra, 548 U.S. at p. 752, fn. 20), we assume for purposes of the present



                                              27
decision that the prosecution could not use appellant’s exercise of his right to plead
insanity against him. That is not, however, what occurred in the present case.
       The jury was ultimately instructed that, “[i]n evaluating the believability of an
expert witness . . . consider the expert’s knowledge, skill, experience, training and
education, the reasons the expert gave for any opinion, and the facts or information on
which the expert relied in reaching that opinion. You must decide whether information
on which the expert relied was true and accurate. You may disregard any opinion that
you find unbelievable, unreasonable or unsupported by the evidence.” One of the
primary sources of information supporting Dr. Solomon’s opinion was the statements of
appellant, both to the doctor and to the police. By inquiring whether appellant had a
motive to lie, the prosecutor’s questioning was calculated to probe the reliability of
Solomon’s opinion. Indeed, Solomon testified that, in determining whether he believes
what an interviewee is saying, he “ha[s] to look at each statement to try to figure out what
it would be for.” Following that testimony, the prosecutor suggested appellant did have a
motive to lie, and Solomon disagreed, stating “since he never said to me that he was
trying to avoid culpability or guilt, I’m not sure what the purpose of him lying would be.”
The questioning that led to the references to appellant’s plea followed, as the prosecutor
sought to rebut Solomon’s assertion that appellant did not care whether he went to prison.
Thus, the questioning at issue properly sought to show that Solomon was relying on
unreliable information, rather than to penalize appellant for asserting his right to plead
insanity.
       People v. Bunyard (1988) 45 Cal.3d 1189, disapproved on another ground in
People v. Diaz (2015) 60 Cal.4th 1176, is instructive. There, the defendant contended the
prosecutor “committed misconduct by arguing that defendant was an ‘interested party’
and that the jury should consider his interest and motive to lie when assessing his
credibility.” (Bunyard, at p. 1222.) The Supreme Court concluded the prosecutor’s
comments were derived from the evidence and proper. (Ibid.) The Court also concluded
the jury was free to consider anything relevant in assessing the truthfulness of the
defendant’s testimony, including any motive to lie. (Id. at p. 1223.) Similarly, in the


                                             28
present case, any motive appellant had to lie was highly relevant to the jury’s
determination of the weight to accord to Dr. Solomon’s opinion.
       The trial court properly overruled appellant’s objections to the prosecutor’s
questioning of Dr. Solomon about appellant’s motive to lie.20
V.     The Trial Court Did Not Err in Instructing the Jury With CALCRIM No. 3450
       As noted previously, it is well established that a “defendant who is incapable of
understanding that his act is morally wrong is not criminally liable merely because he
knows the act is unlawful.” (Skinner, supra, 39 Cal.3d 765, 783; Torres, supra, 127
Cal.App.4th at pp. 1401–1402.) Thus, a defendant can show he was insane at the time of
commission of an offense if he can show he was incapable of understanding his action
was morally wrong, even if he knew his action was legally wrong. Appellant contends
the trial court erred in instructing on the elements of the insanity defense using
CALCRIM No. 3450 because, under his grammatical analysis, the instruction required
appellant to show he was incapable of understanding that killing Harrison was both
morally and legally wrong. Appellant’s claim fails.
       A.     General Principles Regarding Claims of Instructional Error
       “It is settled that, even in the absence of a request, a trial court must instruct on
general principles of law that are commonly or closely and openly connected to the facts
before the court and that are necessary for the jury’s understanding of the case.” (People
v. Montoya (1994) 7 Cal.4th 1027, 1047.) “When an appellate court addresses a claim of
jury misinstruction, it must assess the instructions as a whole, viewing the challenged
instruction in context with other instructions, in order to determine if there was a
reasonable likelihood the jury applied the challenged instruction in an impermissible


20
  In any event, the alleged error is harmless under any standard. The jury was aware that
appellant had pled not guilty by reason of insanity and was instructed that, if the jury
found he was insane at the time of the crime, he would “remain in a mental hospital or
outpatient program, if appropriate.” Thus, the prosecutor’s questions introduced no new
information. Moreover, the prosecutor did not belabor the point and her questions stayed
focused on probing whether Dr. Solomon adequately considered and accounted for the
possibility that appellant was lying.

                                              29
manner. [Citations.]” (People v. Wilson (2008) 44 Cal.4th 758, 803–804.) “The
reviewing court also must consider the arguments of counsel in assessing the probable
impact of the instruction on the jury.” (People v. Young (2005) 34 Cal.4th 1149, 1202.)
We presume the jurors are intelligent and capable of understanding and correlating all the
instructions given to them. (People v. Riley (2010) 185 Cal.App.4th 754, 767.)
       B.     Analysis
       The trial court instructed the jurors with CALCRIM No. 3450, in relevant
part, as follows:
       “You have found the defendant guilty of Murder. Now you must decide whether
he was legally insane when he committed the crime.
       “The defendant must prove that it is more likely than not that he was legally
insane when he committed the crime.
       “The defendant was legally insane if:
       “1. When he committed the crime, he had a mental disease or defect;
       “AND
       “2. Because of that disease or defect, he was incapable of knowing or
understanding the nature and quality of his act or he was incapable of knowing or
understanding that his act was morally or legally wrong.”
       Appellant argues CALCRIM No. 3450 informs jurors that, “with respect to
the right/wrong prong, the defendant must prove that he was incapable of knowing or
understanding that his act was morally wrong and that he was incapable of knowing or
understanding that his act was legally wrong.” He reasons that “[a]s a matter of logic and
English grammar,” when the court told the jury appellant was required to show he was
incapable of understanding “that his act was morally or legally wrong,” the jury
necessarily understood that to mean he had to show he was incapable of understanding
both the moral and the legal wrongfulness of his act.21

21
  Appellant did not object to the instruction as written or request a clarifying instruction.
A defendant may not contend on appeal that jury instructions are impermissibly
ambiguous without first requesting a clarifying instruction at trial. Failure to make such a

                                             30
       To support that assertion, appellant asserts as a rule of English grammar that
“when preceded by a negative, ‘or’ is conjunctive. In other words, ‘not A or B’ is the
same as ‘not A and not B.’ ” Applied to the instruction at hand, his claim is that, when
the jury was instructed he had to prove he was “incapable of . . . understanding that his
act was morally or legally wrong” it was equivalent to instructing the jury he had to prove
he was “incapable of understanding that his act was morally wrong and incapable of
understanding that his act was legally wrong.” To support this proposition he quotes
from Henry Fowler’s English language usage dictionary, where it was observed that
“[T]here is much difference between without falsehood or deceit (which implies that
neither is present) and without falsehood or without deceit (which implies only that one
of the two is not present).” (H.W. Fowler, The New Fowler’s Modern English Usage (3d
ed. 1996, p. 555 (New Fowler’s).)22 However, appellant’s argument at the most
establishes that the instruction is ambiguous. Appellant cites no authority that we must
assume the jury construed the instruction consistent with Fowler’s grammatical
observation, circa 1926. (See New Fowler’s, at p. vii.) New Fowler’s itself states that
the grammatical “ ‘rule’ ” observed by Henry Fowler “[i]n practice . . . is not to be
literally applied.” (Id. at p. 555.) The instruction is at least equally susceptible to a
construction that the “or” between morally and legally actually means “or.” (See People
v. Alselmi (1890) 85 Cal. 434, 435 [in determining whether jury was misled by language
in an instruction, courts “must consider it by the light of common understanding, rather
than the strict rules of grammar, and also in connection with its context”]; see also People
v. Kelly (1992) 1 Cal.4th 495, 536 [“We believe, however, that the standard instruction is


request forfeits the claim on appeal. (People v. Hart (1999) 20 Cal.4th 546, 622.)
Nonetheless, appellant urges that we review the issue because the asserted error affected
his substantial rights by misstating the sanity test. (Pen. Code § 1259; People v. Rogers
(2006) 39 Cal.4th 826, 881, fn. 28.) To determine whether that is so, it is necessary for
this court to consider appellant’s claim on the merits.
22
   Appellant also cites to Willard Van Orman Quine’s Elementary Logic (Harvard Univ.
Press 1980), first published in 1941. However, the cited portions do not set forth the
broad rule of grammar appellant asserts. (See id. at p. 13; see also id. at p. 14 [referring
to “[t]he ambiguity of ‘or’ ”].)

                                              31
sufficiently clear. If defendant believed the jury might engage in the same tortuous
grammatical analysis as he does on appeal, . . . he should have requested” a
modification].)
       Assuming that the instruction is ambiguous, there is no reasonable likelihood the
jury understood CALCRIM No. 3450 in the way appellant suggests. In his closing
argument, defense counsel discussed the sanity instruction and noted there were two
elements—first, that appellant has a mental defect, and, second, that due to that defect
appellant was incapable of understanding the wrongfulness of his act. As to the second
element, counsel emphasized that the language of the instruction (“incapable of knowing
or understanding the nature and quality of his act or was incapable of knowing or
understanding that his act was morally or legally wrong”) provided for “multiple ways in
finding the defendant was not legally sane.” Counsel also expressed the pertinent
question without the negative phrasing that appellant emphasizes on appeal, stating “the
question [Dr. Wagner] was asked by the Court was the same question that you as jurors
are now being asked to decide. At the time . . . the murder was committed, did
[appellant] know or understand that his act was morally or legally wrong . . . .” Counsel
subsequently repeated that characterization of the required showing in discussing Dr.
Solomon’s testimony.
       Furthermore, the prosecutor did not suggest in her closing argument that
appellant’s knowledge of the legal wrongfulness of his act was sufficient to defeat his
claim of insanity. Her principal argument on the issue of wrongfulness was that, “Every
shred of evidence in this case shows that [appellant] knew what he was doing was wrong.
In fact, he made a pact with her, remember that, when he said, this is wrong and I’m
going to get in trouble, right. So they made this pact where, okay, so because of that, I’m
going to go ahead and kill myself. Remember that pact. So he knew what he was doing
was wrong beforehand, and you know, based on his own words afterwards, that he knew
what he was doing was wrong because, well, he told the police he knew he was a bad
person. That shows he knew what he was doing was morally wrong, and you have every
single statement afterwards that shows that he knew what he was doing was legally


                                            32
wrong because the very first thing he tells the 9-1-1 operator is I’m guilty, come and get
me.” Nowhere in that passage did the prosecutor suggest appellant had to show he knew
the act was both morally and legally wrong. It would have been easy for the prosecutor
to argue that appellant’s statement about getting in trouble showed he knew the act was
legally wrong and, thus, the jury was obligated to reject appellant’s insanity claim.
Instead, the prosecutor argued the evidence showed appellant understood both the legal
and moral wrongfulness, which communicated to the jury that appellant’s insanity claim
could be based on either ground.
       Because appellant has not shown it is reasonably likely the jury misunderstood
CALCRIM No. 3450, his claim fails.23
VI.    The Trial Court Did Not Err in Refusing to Discharge the Venire or Provide an
       Admonishment During Voir Dire
       Appellant contends the trial court erred in refusing to discharge the jury panel after
a prospective juror made reference to the release of a person who killed a friend of hers
and was found insane, and in failing to admonish the prospective jurors they would not be
able to consider the consequences of an insanity finding. We reject the claim.
       A.     Factual Background
       During voir dire, a prospective juror revealed there was “something that I had
experienced in my life that might affect my feelings towards this whole thing.” The trial
court asked her if she would prefer to discuss the matter at the bench, and she said, “I
don’t mind speaking about it. . . . I have a friend who was murdered by her son, and it
was an insanity plea; and it was very upsetting to me. And several years later he was out,




23
   We also reject appellant’s parallel contention that CALCRIM No. 3450 prejudicially
misinformed the jury he had to show he was both incapable of knowing and incapable of
understanding the wrongfulness of his act. Even assuming there is a reasonable
likelihood the jury so misunderstood the instruction, any misunderstanding was harmless.
Appellant points to nowhere in the record where counsel or any witness made a
distinction between appellant’s capacity to know and his capacity to understand the
wrongfulness of killing Harrison.

                                             33
so that’s upsetting to me.” She said either the murder or the release had happened in
2001. The prospective juror was excused.
       The following day, defense counsel asked the trial court to discharge the panel,
arguing that the prospective juror’s statement had prejudiced the venire. The court
denied the motion, noting counsel had not objected the day before and the statement was
“a very short comment made in passing.” Counsel then asked the court to read a portion
of CALCRIM No. 3450 explaining that, if the jury found appellant insane at the time of
the crime, he would not be released until a court found he qualified under the law, as well
as a portion of the instruction informing the jury that it “must not let any consideration
about where the defendant may be confined or for how long affect [its] decision in any
way.” The court denied the request. The court had previously addressed that possibility,
commenting that “even mentioning it now before the jury would be more harmful than
helpful” and indicating that it would instruct the jury “at the appropriate time that the
jurors are not to concern themselves with any of the consequences of [an insanity]
finding.”
       At the conclusion of the sanity trial, the trial court instructed the jury pursuant to
CALCRIM No. 3450: “If you find the defendant was legally insane at the time of his
crime, he will not be released from custody until a court finds he qualifies for release
under California law. Until that time he will remain in a mental hospital or outpatient
treatment program, if appropriate. He may not, generally, be kept in a mental hospital
or outpatient program longer than the maximum sentence available for his crime. If the
state requests additional confinement beyond the maximum sentence, the defendant will
be entitled to a new sanity trial before a new jury. Your job is only to decide whether the
defendant was legally sane or insane at the time of the crime. You must not speculate as
to whether he is currently sane or may be found sane in the future. You must not let any
consideration about where the defendant may be confined, or for how long, affect your
decision in any way.” After closing arguments and before deliberations, the trial court
instructed the jury pursuant to CALCRIM No. 3550 that, “You must reach your verdict
without any consideration of punishment.”


                                              34
       B.      Analysis
       Appellant asserts the prospective juror’s comments were equivalent to an improper
suggestion that appellant would be set free if found not guilty by reason of insanity. (See
People v. Babbit (1988) 45 Cal.3d 660, 704.) He contends the prospective juror’s
comments biased the jury against his insanity defense and denied him a fair trial on the
issue of sanity.
       Appellant fails to appreciate that discharge of the venire is a “drastic remedy” and
the trial court “possesses broad discretion to determine whether or not possible bias or
prejudice against the defendant has contaminated the entire venire to such an extreme that
its discharge is required.” (People v. Medina (1990) 51 Cal.3d 870, 889.) Medina
explained, “discharging the entire venire is a remedy that should be reserved for the most
serious occasions of demonstrated bias or prejudice, where interrogation and removal of
the offending venire persons would be insufficient protection for the defendant.” (Ibid.)
In Medina, prospective jurors made very inflammatory comments (apparently while court
was not in session) reflecting prejudgment of the defendant, including “ ‘even his own
lawyers think he’s guilty’ ” and “ ‘bring the guilty S.O.B. in, we’ll give him a trial, and
then hang him.’ ” (Id. at p. 888.) Nevertheless, the trial court did not err in refusing to
discharge the entire venire, where it had identified and excused the offending prospective
jurors. (Id. at p. 889.)
       In the present case, the prospective juror’s comments reflected her personal
discomfort with serving on the jury. She was excused from service. The issue did not
come up again during voir dire, and appellant points to no place in the record suggesting
any other juror was influenced by the comments at issue. (See People v. Ramos (2004)
34 Cal.4th 494, 515 [“there is no indication that” prospective juror’s remarks “affected
the other prospective jurors”].) Appellant has not shown the trial court abused its
discretion in refusing to discharge the entire venire.
       Neither has appellant shown the trial court abused its discretion in refusing to
admonish the venire. It was not unreasonable for the trial court to conclude it would be
more harmful than beneficial to bring up the issue again, given that the original exchange


                                             35
was very brief and no other juror had raised any concern about punishment. As the
California Supreme Court has observed, “ ‘[A]s a general matter, it is unlikely that errors
or misconduct occurring during voir dire questioning will unduly influence the jury’s
verdict in the case. Any such errors or misconduct “prior to the presentation of argument
or evidence, obviously reach the jury panel at a much less critical phase of the
proceedings, before its attention has even begun to focus upon the penalty issue
confronting it.” ’ ” (People v. Seaton (2001) 26 Cal.4th 598, 636.) The same reasoning
applies to problematic comments made by prospective jurors. The trial court knew the
jury would be instructed not to consider punishment before deliberations on the sanity
issue, and the trial court indeed did instruct the jury using the language of CALCRIM No.
3450 at that time.24
                                      DISPOSITION
       The judgment is affirmed.




24
  Appellant criticizes CALCRIM No. 3450 in various respects, but only in the context of
arguing that the alleged error in failing to discharge or admonish the venire was
prejudicial. Because there was no error, we need not and do not address appellant’s
criticisms of CALCRIM No. 3450.
        We also reject appellant’s claim of cumulative prejudice; the few arguable errors
we have identified were, even in combination, of little significance in light of the
evidence supporting the jury’s verdict.

                                            36
                   SIMONS, J.




We concur.




JONES, P.J.




NEEDHAM, J.




(A140625)



              37
