Filed 2/14/14 P. v. Suazo CA4/1
                       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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                     COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                          D060885

         Plaintiff and Respondent,

         v.                                                          (Super. Ct. No. SCD 216401)

IAN ALEX SUAZO,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, John S.

Einhorn, Judge. Affirmed.



         Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Julie L. Garland, Assistant

Attorneys General, Lilia E. Garcia and Lynne G. McGinnis, Deputy Attorneys General,

for Plaintiff and Respondent.
       A jury convicted Ian Alex Suazo of the second degree murder of Ocie Raines

(Pen. Code,1 § 187, subd. (a)), and found true an allegation that Suazo used a knife

during the murder. (§ 1192.7, subd. (c)(23).) The jury found that Suazo was sane at the

time he committed the offense. The court sentenced Suazo to an indeterminate term of

15 years to life. The court denied Suazo's new trial motion brought on grounds that the

court had erroneously instructed the jury regarding the presumption of sanity in the guilt

phase of the trial, and insufficient evidence supported the jury's finding of sanity.

       Suazo contends: (1) He was denied a fair trial before an impartial jury because the

jury selection process was flawed; (2) the court erroneously instructed the jury regarding

the presumption of sanity during the guilt phase; (3) the court erroneously instructed the

jury regarding flight; (4) the jury could not reasonably reject the substantial evidence of

his insanity; (5) the court incorrectly instructed the jury regarding the effect of

intoxication on the defense of insanity; (6) the court violated his right to a fair trial by

rejecting his requested jury instruction specifying that he acted on the advice of counsel

in refusing to meet with the prosecution's psychiatrist; and (7) there was cumulative error.

We affirm the judgment.




1      All statutory references are to the Penal Code unless otherwise stated.

                                               2
                   FACTUAL AND PROCEDURAL BACKGROUND

       Prosecution Case—Guilt Phase

       In September 2008, Suazo, his cousin Paul Suazo,2 and Raines lived together in a

Pacific Beach apartment. Suazo and Raines had a good relationship. They both worked

at Sinbad's Cafe, a hookah bar. Suazo worked as an attendant and Raines as a bouncer.

Suazo drank alcohol every day. On September 17, 2008, Suazo was fired for being drunk

on the job. He became angry, scared, and concerned about how he would pay his rent

and other bills.

       On September 21, 2008, Suazo stole and swallowed approximately 20 of Raines 's

Xanax pills in an apparent suicide attempt.

       Near midnight on September 23, 2008, Paul invited two female friends from his

work to a party at the apartment. Raines joined them to watch a movie. Suazo and others

at the party drank alcohol and smoked marijuana. Suazo was sad and angry. He did not

watch the movie but instead paced around. At one point, Paul was scared because he

thought Suazo "looked like a demon." Suazo flirted with the females, but they were not

interested in him. Before the movie ended, Suazo told the females they were getting loud

and asked them to leave, which they did.

       On September 24, 2008, at approximately 2:30 a.m., Raines contacted one of the

females by telephone and text message.




2      To avoid confusion, we refer to all of Suazo's family members by their first names.
                                              3
       At approximately 2:30 a.m., Suazo's neighbor, Blair Robb, heard Raines return

home and speak on his cell phone. A few minutes afterwards, an altercation began in

Suazo's apartment. Robb testified at trial, "It sounded like somebody being thrown into a

wall. And then I heard somebody saying, 'what the fuck is your problem, man? What the

fuck is your problem?' " Afterwards, Raines, whose voice was muffled as if he was

pinned down, said something like, "Help. Help. Ian, Ian, you are killing me. Ian, you

are killing me. I don't want to die." The altercation lasted approximately 10 minutes. It

sounded to Robb like someone left Suazo's apartment approximately 20 minutes later.

       Around 4:00 a.m., Paul returned to Suazo's apartment and found Raines dead on

the living room floor. Water was running in the bathtub and it was almost overflowing.

Forensic Evidence

       Detectives investigating the crime scene found a knife handle underneath Raines's

body. The serrated portion of the knife was bent and found in the bathtub.

       Crime scene reconstruction expert Brian Kennedy reviewed the crime scene

photos and sketches, autopsy reports and statements by emergency responders. He

concluded based on the bloodstain patterns and Raines's lack of many defensive wounds

that Suazo and Raines did not engage in much mutual combat. Kennedy opined Suazo

likely either pulled Raines's shirt over his head or waited until Raines was getting

undressed and surprised him. Raines possibly was kneeling during any combat.

Autopsy

       The forensic pathologist who performed the autopsy testified Raines had abrasions

on his knees and the top of his left foot, indicating he was kneeling on a carpet floor

                                             4
shortly before his death. Raines was cut across the neck and throat with a serrated knife.

He died of multiple sharp force injuries to his face and neck and primarily bled to death,

but he probably had difficulty breathing because of his cut epiglottis. Raines's carotid

arteries also might have been compressed. The pathologist testified that given Raines's

failure to escape the attack, and the placement of his injuries, he most likely was attacked

from behind, making it easier for his assailant to expend the fair amount of effort

necessary to cause Raines's death, which was not quick. Further, Raines likely was

conscious for a significant time during the attack. Suazo's blood sample was taken at

approximately 9:43 a.m. on September 24, 2008, and he tested positive for alcohol and

cocaine.

Suazo's Apprehension

       On September 24, 2008, at approximately 9:00 a.m., police received reports that

Suazo was running in and out of traffic. Police found Suazo lying in the street. His

breath had a strong odor of alcohol. His hands were bloody, and one hand seemed almost

sawed off. Suazo was in and out of consciousness, and did not recall what had happened.

He identified himself to police using a different surname.

Suazo's Interview with Detectives

       At approximately 11:00 a.m. on the day police apprehended Suazo, San Diego

Police Department Detective Ron Newquist and another detective interviewed Suazo at

the hospital following his surgery, and approximately 15 minutes after Suazo had

received pain medication. Detectives questioned Suazo to verify he was alert, and he

correctly identified the current United States President and the two nominees in the

                                             5
upcoming presidential elections. Detectives administered warnings to Suazo as required

by Miranda v. Arizona (1966) 384 U.S. 436. When detectives informed Suazo he was

under arrest, Suazo asked whether it related to his suicide attempt. Suazo said he did not

much remember the events relating to Raines's death. He mentioned he had consumed

approximately 15 Xanax pills a couple of days earlier. Suazo said that in the past few

months he had blacked out five or six times because he had drunk alcohol. Suazo said

that for three days he had been hearing voices tell him to hurt himself, but they did not

tell him to hurt Raines or Paul. Suazo said, "I was trying to be good and the voices were

going away." The voices he heard at the hospital were mean and repeatedly called him "a

bitch and a faggot."

       During the interview, Suazo remembered returning home before the incident and

taking a line of cocaine that Raines gave him. When detectives asked if Suazo had taken

other drugs that night, he admitted drinking alcohol, and also stated, "I smoked some

weed, I don't know." Suazo remembered that Raines was in the living room during the

incident. Suazo said he had blacked out, adding, "I woke up in the tub and I was carving

my wrists." Suazo did not remember cutting Raines, stating, "I don't know why I hurt

[Raines]" and, "I don't have any reason to hurt [Raines]. I don't know why I did that."

When asked if he had hurt Raines, Suazo acknowledged, "I must have. I was the only

one there when I woke up." Suazo had memory "flashes" of himself stabbing in a

downward motion, but not of any fight with Raines. Suazo said that when he awoke, he

saw Raines dead on the bathroom floor, with blood near Raines's stomach. Suazo ran to

the beach and slept. Detectives asked Suazo if he was sure he had blacked out or if he

                                             6
just did not want to remember what had happened. Suazo cried and replied, "I don't want

to remember." Police asked Suazo if he thought anybody else was involved in Raines's

death, and Suazo replied, "No." Suazo did not at first remember getting hit by a vehicle.

      Defense Case—Guilt Phase

Suazo's Early Drug Use and Mental Health Problems

      Suazo's father Nathan testified Suazo started drinking alcohol and smoking

marijuana at age 16. In March 2005, Nathan tried to get Suazo help for his drug and

alcohol abuse, but Suazo threatened to run away. Later in 2005, Suazo was 18 years old

and hearing voices. He was placed on a hospital hold for 72 hours for attempted suicide.

At that time Suazo's blood tested positive for PCP and marijuana. Afterwards, Suazo was

hospitalized for approximately three weeks. A few weeks after Suazo's hospitalization,

he complained of hearing guns going off in his head, someone singing rap music to him,

and crows chasing him. Nathan took Suazo to Psychiatric Centers of San Diego, but they

did not admit him because they did not consider him a harm to himself. A few weeks

later, Suazo was arrested for stealing a purse and possession of methamphetamine. He

was placed on probation for 18 months, prohibited from using drugs or alcohol, and

subjected to random drug tests. Ever since Suazo's 2005 hospitalization, Nathan was

concerned Suazo would become paranoid and delusional again. Nathan did not know the

source of Suazo's problem, but realized drugs and alcohol "agitated" it. A doctor had

specifically warned Suazo in 2005 that he could no longer use any type of drug, or he

risked having another psychotic episode.



                                            7
       Suazo's mother Julie testified that while Suazo was on probation he spoke to her

several times about his belief that the movie "The Matrix" was probably true; all humans

are dreaming, and we are not really here on earth. Suazo believed his dreams were

significant, and that during them he could travel into peoples' minds and they could enter

his mind. Suazo believed freemasons were powerful, secretive, and probably up to bad

things in the world. Suazo also was very worried about crows and other black birds. He

said several times that crows and certain bugs, like mosquito hawks and palmetto bugs,

had evil spirits. Suazo insisted Julie research whether some black birds that appeared in a

television commercial were crows. Suazo also would tell Julie that things he heard on

television were said just to him. Suazo obsessively read the Bible's Book of Revelations

and searched for references to 666 and the anti-Christ. Suazo several times referred to

himself as the Lamb of God. Suazo started working at Sinbad's in September 2007 and

he was certain he could hear people talking about him through the air vents. He believed

voices talked to him through fans and from white noise on television sets.

       Julie testified that in early 2008, Suazo returned to live with her temporarily, and

still drank alcohol in violation of his probation conditions and her house rules. He

continued working full time at Sinbad's and saved money to afford the rent on his Pacific

Beach apartment.

       In approximately June 2008, Courtney Fond-Leoncini met Suazo when she stayed

at Suazo's apartment with Paul. Whenever she and Paul became affectionate with each

other, Suazo would get angry and yell, "Fuck you," to no one in particular. Suazo drank

beers every morning. At first Suazo appeared happy, but after he was fired he drank and

                                             8
smoked marijuana more, did not eat much food, and was disheveled. Suazo became

increasingly negative and said his friends hated him and his life was worthless. He also

repeatedly referred to his ex-fiancée.

Events before the Murder

       On September 16, 2008, Suazo asked Nathan for advice about his "mid-life crisis,"

stating he would be dead by age 40. Shocked by this conversation, Nathan told Suazo he

was too young for such a crisis, and he would not die so soon. Nathan asked Suazo if he

was using marijuana, which Suazo confirmed. Suazo also said he was using Vicodin that

Raines had sold him. Nathan cautioned Suazo, "You know you're not supposed to be

taking these types of drugs because your mind can't handle it." Suazo replied, "It's under

control." The next evening, Nathan was visiting Suazo when Suazo's employer phoned

and said he likely would fire Suazo for drinking on the job. Suazo was angry. Nathan

offered Suazo a better paying job, and eventually persuaded him to spend the night at

Nathan's home. Nathan was surprised when Suazo said he loved Nathan and asked him

for a goodnight hug.

       To Nathan, it seemed Suazo became obsessed with his job loss, causing Suazo "a

ping-pong ball of emotions from one second to the next." Suazo acted paranoid once

when Nathan's watch alarm was activated. On September 19, 2008, Suazo was manic

and agitated when working with Nathan and requested Xanax, saying he was hearing

voices. Nathan reluctantly gave Suazo a Xanax pill, but refused Suazo's request for a

second pill. Nathan instead offered Suazo a beer. But Suazo explained that alcohol no

longer quieted the voices. Suazo explained that he was fired because when things got

                                            9
quiet at his work, he started hearing voices; therefore, he went to a next door bar and

drank alcohol. Suazo claimed Raines or other persons had betrayed him by telling his

employer about his drinking.

       On September 20, 2008, Nathan again took Suazo to work with him, but Suazo

was unproductive and complained about hearing voices. Nathan did not take Suazo to

work the next day, fearing Suazo would again be unproductive.

       On September 21, 2008, Suazo consumed approximately 20 Xanax pills in

addition to beers, Vicodin and Robitussin. He could barely stand up. Fond-Leoncini

thought he was going to die. She suggested that they take Suazo to the hospital, but Paul

refused, noting that drugs and drug paraphernalia were inside their apartment.

       On September 22, 2008, Suazo said he was hearing a screaming voice in his head,

and insisted that Nathan take him to the doctor. Nathan canceled all his work plans and

picked up Suazo, who told him he had taken five Xanax pills with alcohol. Nathan took

Suazo to the Psychiatric Center in Chula Vista, expecting they would prescribe Seroquel

to stop the screaming voices in Suazo's head. But the doctor instead referred Suazo to a

detoxification center. Nathan and Suazo were angry and Nathan proposed taking Suazo

to either the emergency room or San Diego County Mental Health Services, but Suazo

refused, saying that at those places they "put stuff in the orange juice." That night,

Nathan took Suazo to Julie's house, where Suazo did another "bizarre act" by sitting in

Julie's lap. He also hugged and kissed her. Julie testified that Suazo had felt better while

at her house.



                                             10
The Hours before the Murder

       On the morning of September 23, 2008, Julie dropped off Suazo at the bus stop.

He was sad and quiet. She was concerned he might miss the bus, so she drove around the

block. But she did not see him after the bus had left, and assumed he had caught it. She

telephoned him around noon and he said he had slept and was feeling much better. In

another phone call that day, Suazo asked Julie whether salt "would keep out the soul

collector."3 She jokingly told him, "I [don't] know what it would do for the soul

collector, but it might keep the ants out." He seemed to laugh at the comment. Around

6:00 p.m., she took him food and he seemed calm. He pointed out he had placed salt on

his apartment window frames, and they laughed at that. Julie tried to convince Suazo to

spend the night at her house, but he refused, saying she would have to seal all her

windows and doors with salt.

       Nathan telephoned Suazo to check on him and Suazo said everything was okay

because he "was searching the Internet for ways to keep the soul collector from getting

him," and Suazo was required to put salt on the window frames and around doorjambs to

keep the soul collector out of the house. Nathan admonished him to stop researching on

the Internet about that topic.

       Fond-Leoncini saw Suazo put salt on the window frames and around the carpet in

his apartment. He told her not to ask what he was doing, and so she did not. He later told

her he was protecting himself from evil spirits, and folded his arms across his chest and


3     The parties stipulated that police found a web page titled "Protection Against Soul
Collection" on Suazo's laptop.
                                            11
rocked back and forth. He said he had obtained the information from the Internet. Suazo

told Fond-Leoncini that he could hear people's thoughts.

      In the night, Raines had asked the housemates to leave the apartment because he

was bringing a female over, so Fond-Leoncini took Suazo for a drive, during which

Suazo said he had feelings for her. She told him she was not interested. Around 10:30

p.m., while they were driving around, he asked her to stop at a church, saying he wanted

to go in by himself. Approximately 15 minutes later, he came for her, saying he needed

company inside the church. She sat with him in the church. He cried and said his life

was worthless. She told him his life was worth something. She dropped him off at his

apartment around 11:00 p.m.

      Nathan telephoned Suazo around 11:30 p.m., and Suazo sounded happy, told

Nathan he loved him and said, "I'm all right, Dad. Everything's under control."

      Defense Case—Sanity Phase

      Psychiatrist Zvjezdan Nuhic testified that on September 22, 2008, he met with

Suazo and Nathan at the Psychiatric Center. Suazo complained that auditory

hallucinations had commanded him to hurt himself, and the Bible told him to kill witches.

Dr. Nuhic diagnosed Suazo with alcohol dependence, marijuana abuse and nonspecified

psychosis. The psychiatrist recommended Suazo go to a drug detoxification facility.

      On September 24, 2008, San Diego Department Police Officer Omar Sinclair rode

with Suazo in an ambulance to the hospital. Suazo provided his name and birth date, but

did not remember what had happened that day. Suazo told Sinclair, "I want to see your



                                           12
eyes. I can't see you." Sinclair could not understand other things Suazo said, except

"Zanzibar," which is the name of another hookah bar.

       Court appointed psychologist Katherine Di Francesca evaluated Suazo to

determine his sanity. She interviewed him in February and March 2009. He told her

witchcraft was real, his belief in it came from studying it since he was 17 years old, and it

had a hold on him. Suazo spoke about crows torturing him, the third eye, freemasons and

matrixes. Suazo ascribed powers to someone named "Q," and said he could not say no to

Q.4 Dr. Di Francesca concluded that Suazo suffered from schizophrenia, paranoid type,

and possibly schizoaffective disorder, depressive type. She opined that when he killed

Raines, Suazo could not understand the nature and quality of his actions or understand

the difference between right and wrong. She testified that if Suazo's "mental state was

caused by intoxication and not by a settled mental illness, then he does not qualify for an

insanity defense at all." Dr. Di Francesca concluded that in the moments leading to

Raines's death, Suazo was "very confused. He was agitated. He was symptomatic in that

he was hearing voices and in a severe delusional state." Dr. Di Francesca stated Suazo's

"heightened emotionality" was manifested by the wounds he inflicted on Raines, and his




4       Quinton Franklin, also known as "Q," testified for the prosecution in the sanity
phase. He stated he knew Raines and Suazo because he frequented Sinbad's. Franklin
testified he and Suazo shared an interest in rap music. Suazo was upset and angry about
his firing, and would say things like, "They think it's funny. But if I, like, blow up the
building, then they would take me seriously." Franklin denied ever telling Suazo that
Raines was a racist, or that Raines had to die.

                                             13
attempts to kill himself. She also noted Suazo aggravated his mental condition by using

alcohol and drugs.

       Psychiatrist Jaga Glassman interviewed Suazo four times, beginning in October

2008. He opined Suazo was "very psychotic and the data fit best for a diagnosis of

schizophrenia." Dr. Glassman concluded Suazo was not legally sane when he killed

Raines. Dr. Glassman stated that in an October 2008 interview, Suazo did not remember

killing Raines and was unable to provide a coherent account of the murder. Instead,

Suazo "was immediately talking about soul catchers and demons and talking to crows and

having crows talk back to him and voices he was hearing through the fan, and on, and on,

and on about more delusional beliefs."

       Dr. Glassman testified Suazo gave delusional responses regarding why he killed

Raines, and Suazo claimed to act under orders from Q. Dr. Glassman stated: "[I]t was

clear that [Suazo] was terrified that the soul collector was coming after him or that his

soul was going to be collected and that Q, or this deity or God or supernatural force

named Q was part of it. [¶] At times [Suazo] seemed to believe that [Raines] was being

controlled by Q and had been sent to collect [Suazo's] soul. At other times he seemed to

believe that he himself was being controlled by Q and was the soul collector. [¶] Suazo

also talked about delusional beliefs involving race. He believed that although his skin is

not African-American that in some way he is really African-American in his soul. And

because [Raines] had used the 'N' word . . . that he was being directed to have to take

[Raines] out for that reason and that the supernatural forces or God were telling him that

that was something that he had to do."

                                             14
       Dr. Glassman opined, "Since [Suazo] was fired from his job four or five days

before that, his psychotic symptoms were building. He was filled with these delusions

we've talked about, about soul collectors, hearing voices, hearing this God or idol talking

to him. [¶] He was becoming terrified because he believed that some force was taking

him over, was going to collect his soul. He was desperately spending time on the internet

trying to find out how to ward off soul collection and demon possession, and things like

that. [¶] Desperately trying to find some way to save himself from something that was

worse than death; losing his soul."

       Psychologist Clark Clipson, Ph.D., interviewed Suazo in April and May 2009, and

testified that on September 24, 2008, Suazo was suffering from schizophrenia. Suazo

told Dr. Clipson that Q had told him to kill Raines, and "Q was like God. He was the

only voice I heard in church." Suazo said Q had told him to jump in front of a car. When

Suazo woke up in the hospital, he thought he was dead and they were harvesting his soul.

Dr. Clipson concluded that when Suazo killed Raines, Suazo was acutely psychotic;

intoxicated and legally insane. Suazo's alcohol and drug use worsened his underlying

mental illness.

Prosecution Case—Sanity Phase

       The manager and Owner of Sinbad's testified that on September 23, 2008, between

9:00 p.m. and 10:00 p.m., Suazo went to Sinbad's to pick up Raines's pay; but the

manager refused to give it to Suazo, and instead gave Suazo his own wages owed

following his termination.



                                            15
       On September 27 and September 28, 2008, Psychiatrist Charles Ettari evaluated

Suazo, who was oriented as to time and place; his thinking was logical, and his memory

intact, except for a period of amnesia surrounding events of the previous days. Suazo did

not have any psychosis or suicidal ideation. Dr. Ettari diagnosed Suazo with

polysubstance abuse, but noted Suazo was experiencing anxiety and depression because

of the murder charges against him. Suazo reported that for approximately the past year

and a half he had had auditory hallucinations telling him demeaning things. The voices

also commanded him to reapply for his job. Nevertheless, Dr. Ettari ruled out a

schizophrenia diagnosis for Suazo.

       In a jailhouse telephone call on October 7, 2008, Suazo told his friend, Corrine

Senske, that Dr. Glassman had arrived for his first interview earlier that day, and Suazo

had checked Dr. Glassman's identification card before the meeting, prompting Dr.

Glassman to ask if Suazo was paranoid. Suazo told Senske he was worried about the

impression he had made on Dr. Glassman. Suazo felt Dr. Glassman was trying to see if

Suazo was faking his symptoms, and that annoyed Suazo.

       In a jailhouse telephone call on October 20, 2009, Suazo defied Julie's instruction

that he not speak on the telephone regarding his desire to file a lawsuit against the

psychiatrist at Psychiatric Centers for failing to prescribe him any drug to help him in

September 2008. Julie reminded Suazo the call was being monitored, but Suazo replied

that his defense involved his mental health; therefore, he could speak about that topic.

Julie told Suazo to consult with his counsel, and Suazo said he had done so and his

attorney had said, "If you're feeling anything is wrong, don't hesitate to, to screw yourself

                                             16
on medical. But [defense counsel] said that . . . they can use whatever they feel they can

against you." Suazo continued to say that he had talked to the psychiatrist in jail, asking

if their conversations were confidential. The psychiatrist replied that the judge can look

at it if he wants. Suazo's reaction to that reply was, "Like fuck you buddy." Suazo also

told Julie, "I'm almost thinking about like people I should, old people I should try to call

up to try to add, just be witnesses for me. Shit, they could be good witnesses. I've told

them so much shit." Julie asked who he was referring to, and Suazo replied, "Ryan and

all them. Got them actually to believe a lot of my shit that I believe. They might, that

might be even a reason that they wouldn't go cause they, they'd all think it's wrong."

       Court-appointed psychiatrist Matthew Carroll interviewed Suazo on February 6,

2009, and diagnosed him with polysubstance dependence and psychotic disorder not

otherwise specified. Dr. Carroll opined Raines's death was "a direct result of alcohol and

drug usage," and if Suazo had not used them in the hours before the incident, it is highly

unlikely he would have killed Raines. Dr. Carroll concluded Suazo did not meet the test

for insanity. Dr. Carroll testified that in reaching that determination, "We have to go

through the actions and see did [Suazo] understand that what he was doing could likely

result in the death of another person. . . . So the first step, he got a knife. He had to get

the knife from somewhere. He didn't pick up a [television] remote or something and start

hitting [Raines] with it. He doesn't pick up a book and just start hitting [Raines] in the

knee with it. No. He gets a knife and goes to [Raines]. We don't know exactly what

happened, but the reconstruction suggests that he effectively ambushes [Raines] from

behind in some way."

                                              17
       Dr. Carroll opined Raines's death was not accidental: "This is much more

purposeful. We're looking at the nature of quality [sic] in an act. . . . Is [Suazo] sitting

there screaming, 'There's demons around me,' swinging the knife around and his

roommate happens to get hit? No. It looks like he specifically went after [Raines] for the

purposes of harming [him] severely. You look at what did he do with the knife. We

know based on the autopsy report and the crime scene that he cut [Raines] in the neck

several times." Dr. Carroll added, "We have another witness saying he hears [Raines]

saying, 'You're killing me. You're killing me.' There's nothing to suggest that, in my

opinion, [Suazo's] mental illness was so severe he wouldn't have understood those words.

. . . It's not like he lost his ability to understand the English language. " Dr. Carroll also

analyzed Suazo's interview with detectives and noted, "At no time does [Suazo] make

any statements such as, 'I got rid of the soul catcher,' or 'I got rid of the demon' or

something of that sort to suggest that [Suazo] doesn't think [Raines] is a human being."

       Dr. Carroll also addressed Suazo's statement to Dr. Glassman that Raines had to be

killed because Raines was racist. Dr. Carroll stated: "There are many, many racist

people in this country. We don't have a right to just go kill them because they're racist.

It's still legally wrong. It's still morally wrong. And the fact that [Suazo] talks about how

he had to kill [Raines] suggests he fully understood the nature and quality. Maybe he

said he doesn't remember what happened, but he understood [he] was killing a human

being. [He] was killing [Raines]." Dr. Carroll believed Suazo's views on this issue did

not show he was insane, because Suazo knew the nature and quality of his acts, and that

his conduct was wrong.

                                              18
       Dr. Carroll referred to Suazo's accounts of the events that occurred the night of the

murder as "a changing, evolving story that has changed from the day of the crime through

all the doctors. So [Suazo's] gone to the point now where he's saying that he has to do

this for God, which is giving more of a reason to do that. It's somewhat interesting. I

don't know the answer, but it certainly appears it's somewhat self-serving, as each time he

changed the story with the doctor[s] to make it worse and worse."

       In analyzing Suazo's post-murder conduct, Dr. Carroll noted Suazo had attempted

suicide: "You have someone who is feeling guilty about what they've done that they tried

to kill themselves. They want to die because of what they've done. Now, he may have

other reasons too. He talks about hearing voices telling him to kill himself. I'm not

saying that's not possible, but those factors when you look at them are highly suggestive

of somebody who is feeling guilty about the situation. [¶] [Suazo] wakes up from the

beach. He is not dead. He then runs in front of a car at this point. Again, he doesn't

exactly remember it. Highly suggestive of somebody who is again trying to kill himself.

. . . [¶] Now the police come at this point. Police ask him his name. He gives a false

last name," suggesting that Suazo understood that his conduct was wrong.

       Dr. Carroll noted Suazo did not appear to have symptoms of psychosis during his

interview with Dr. Ettari. In fact, Suazo did not receive medication until a month after

his interviews with Dr. Ettari. These facts prompted Dr. Carroll to state: "Well, if you

have someone that is this mentally ill during their crime that they can't understand the

nature and quality of their acts and can't understand the difference between right and



                                            19
wrong, why are they all of a sudden better? And we have a whole month they're not even

needing any mental health treatment during this period."

       Dr. Carroll further noted Suazo did not sound psychotic or delusional in his

jailhouse calls to Senske and Julie, despite the fact he had not yet received antipsychotic

medication. Specifically, Dr. Carroll noted Senske laughed when Suazo said he had

checked for Dr. Glassman's identification card. Dr. Carroll continued, "Well, that shows

some normal social interaction—[Senske and Suazo] kind of actually had a little joke

about that, that [Suazo's] not really paranoid. He's afraid, and legitimately. He's never

been in this situation before, doesn't want some doctor to come in. He wants to make

sure that was the defense doctor that he knew was coming before he was going to say

anything. So he has to see his I.D. [Suazo] explains that. Dr. Glassman sort of

interpreted that in his report, that he thought [Suazo] was acting paranoid. But when you

take it into context—and we have a phone conversation noting that—it really wasn't so

paranoid. It was normal behavior."

       Psychiatrist Park Dietz testified he had tried to interview Suazo, who refused to

meet him based on the advice of his counsel. Dr. Dietz diagnosed Suazo as follows:

"My judgment based on everything I do know about this case is that it isn't just drugs and

alcohol. I think he has an illness . . . probably schizophrenia. That he probably had the

delusions and hallucinations, which are called positive symptoms of schizophrenia,

earlier than he would have otherwise because he is such a drug abuser and drinks so

much so I think he hastened the onset of his illness by about two years from that drug



                                             20
abuse."5 Dr. Dietz added, "I think if [Suazo had] been clean and sober he wouldn't have

done this homicide." Dr. Dietz testified that Suazo's firing from his job might explain the

reason Suazo committed the murder: "So one of the people [Suazo] was angry with for

losing his job happens to be the man he would soon kill. And one has to wonder is this a

reason he would kill him?"

       Dr. Dietz was skeptical whether Suazo was telling the truth to Dr. Glassman,

noting that in Suazo's phone call to Senske, "[Suazo] said he didn't know whether [Dr.

Glassman] believed him or thought he was making things up. [Suazo] said that [Dr.

Glassman] pushed him to see if he was faking. And [Suazo] had been tempted to ask

[Dr. Glassman] what he thought. [¶] The significance to me of that is that [Suazo is]

concerned for the impression he's making on the evaluator, and how that will affect his

case." Dr. Dietz compared Suazo to two different groups of mentally ill patients:

"Sometimes mentally ill defendants are completely oblivious [of] the legal defense. They

may be uncooperative with their attorney. They may insist that they're not mentally ill

and that there is nothing wrong with them and they try to conceal it." According to Dr.



5      Dr. Dietz elaborated on this diagnosis: "I think there may be some dispute as to
the role that [Suazo's] drug abuse played in causing his mental disease or hastening it or
worsening it. [¶] . . . [¶] . . . [Suazo] has said he began drinking alcohol at [age] 15.
There is considerable evidence indicating that he drank heavily for years. He said he
began using drugs at 13 or 16, and he's given quite inconsistent accounts of this.
Different doctors get different stories from him so it's hard to know what is true about it.
[¶] He's smoked marijuana daily for years prior to his arrest. [¶] And he's abused at one
time or another cocaine, methamphetamines, hallucinogenic mushrooms, oxycodone and
PCP. That's a serious history of drug abuse. [¶] Then he admitted to detectives that he
snorted cocaine shortly before the homicide and that has been corroborated by
toxicology."
                                             21
Dietz, other mental patients, who are complete malingerers, often proclaim their

craziness, insisting they do not know right from wrong. Dr. Dietz concluded: "[Suazo is]

neither of those extremes but he's evidencing concern about the impression he's making

on Dr. Glassman and that makes me a bit skeptical."

       Dr. Dietz testified regarding Suazo's jailhouse telephone comment during a

discussion regarding possible harm to him in prison, and Suazo's comment, "Hopefully

I'll end up going to some state hospital, though." Dr. Dietz said the comment "shows

[Suazo is] very aware of the effect that his presentation of symptoms might have on his

future lodging. And that does not necessarily mean that he's trying to mislead people to

have a better life but it makes it possible that he would do that." In another telephone

call, Suazo told his mother, "The symptoms have gone away." And Suazo asked her,

"What is supposed to help me now?" Suazo also complained he looked "regular." Dr.

Dietz concluded Suazo was concerned that if he looked "normal" and did not have any

symptoms the jury might not find him insane.

       Dr. Dietz concluded Suazo understood the nature and quality of his actions

because Suazo told detectives he did not hear voices telling him to kill Raines. Dr. Dietz

also testified: "Of great importance is that [Suazo's] actions show that he used a serrated

knife to inflict lethal stab and incise wounds on [Raines's] neck. The fact that the wounds

are inflicted on a vital region is significant in that if someone were not at all in touch with

reality, were acting in a wild fashion, there would be no particular reason that the wounds

would cluster in any lethal area of the body. They would be randomly located." Dr.

Dietz added, "One always needs to wonder how does a victim end up under the control of

                                              22
the offender and particularly so when [Raines] was somewhat heavier and taller than

[Suazo]. And so in a fair fight equally armed, [Suazo] wouldn't necessarily have an edge.

But if he attacks [Raines] from behind and by surprise, of course he has an edge. And

that also suggests an intent to harm and knowledge of how [Raines] is likely to react."

       Dr. Dietz noted the altercation had lasted approximately 10 to 15 minutes and

Raines screamed for help; yet, Suazo persisted in killing Raines. This showed Suazo 's

actions were intentional and purposeful. Dr. Dietz concluded, "It's my opinion with

reasonable medical certainty that at the time of the homicide, [Suazo] knew and

understood the nature and quality of his acts, namely that he was taking the life of

another human being."

       On the question of whether Suazo knew his conduct was wrong, Dr. Dietz

observed, "Here, the evidence is not as clear. First of all, I found no indication that

[Suazo] believed what he was doing was right when he killed [Raines] and several pieces

of evidence that are consistent with his knowing that what he did was wrong." Dr. Dietz

elaborated that the altercation had lasted approximately ten minutes, raising a possibility

that Suazo had planned the attack and ambushed Raines.

       Regarding the question of whether Suazo was insane when he committed the

murder, Dr. Dietz stated it was a jury question, and posed two questions for the jury's

consideration: "First, did [Suazo] truly hear any voice tell him to kill the victim?" And

second, "Assuming [Suazo] did hear a voice whom he identifies as Q telling him to kill

[Raines], then the question is does [Suazo's] saying that Q was a god or like God . . . .

Does [Q] have the same moral authority as God Almighty?"

                                             23
                                        DISCUSSION

                                               I.

                                               A.

       Relying on Wainwright v. Witt (1985) 469 U.S. 412 and Adams v. Texas (1980)

448 U.S. 38, Suazo contends "jurors in cases involving insanity pleas should be qualified

for service analogous to the way jurors are qualified for service on capital cases."

(Capitalization and emphasis omitted.) Suazo concedes that Wainwright has not been

extended beyond the death penalty context, but urges us to do so in this case.

       We reject the contention on grounds Suazo failed to preserve it. "A party must

make a timely and specific objection to the manner in which a trial court conducts jury

selection or the matter is forfeited for appeal." (People v. Mills (2010) 48 Cal.4th 158,

170.) "[A]n objection is necessary to enable the court to avoid or correct error." (People

v. Holt (1997) 15 Cal.4th 619, 656.) Suazo contends he preserved the issue for appeal by

objecting at the new trial motion hearing. But that was not a timely objection because it

did not enable the trial court to avoid or correct any perceived error in the jury selection

process. Accordingly, the matter is forfeited.

       In any event, Suazo has not shown that his jury was biased against him. "We have

observed that the adequacy of voir dire is a matter ' " 'not easily subject to appellate

review. The trial judge's function at this point in the trial is not unlike that of the jurors

later on in the trial. Both must reach conclusions as to impartiality and credibility by

relying on their own evaluations of demeanor evidence and responses to questions.' " '

[Citations.] The applicable standard is a demanding one: 'Unless the voir dire by a court

                                               24
is so inadequate that the reviewing court can say that the resulting trial was

fundamentally unfair, the manner in which voir dire is conducted is not a basis for

reversal. [Citation.] . . .' [Citations.] [¶] . . . 'The right to voir dire, like the right to

peremptorily challenge [citation], is not a constitutional right but a means to achieve the

end of an impartial jury.' " (People v. Carter (2005) 36 Cal.4th 1215, 1250-1251.)

       Finally, we note that Code of Civil Procedure section 197 et seq. outlines a

comprehensive scheme for selecting jurors in criminal cases. Suazo has adduced no

evidence that this scheme was inadequate for purposes of selecting an impartial jury in

his case. Therefore, we have no basis for abandoning the Legislature's scheme and

embarking on a judicially created experiment mandating qualified juries in cases where

the defendant pleads insanity.

                                                     B.

       Suazo contends the trial court erred by denying his challenges of prospective

jurors for cause.

       "Assessing the qualifications of jurors challenged for cause is a matter falling

within the broad discretion of the trial court. [Citation.] The trial court must determine

whether the prospective juror will be 'unable to faithfully and impartially apply the law in

the case.' [Citation.] A juror will often give conflicting or confusing answers regarding

his or her impartiality or capacity to serve, and the trial court must weigh the juror 's

responses in deciding whether to remove the juror for cause. The trial court's resolution

of these factual matters is binding on the appellate court if supported by substantial

evidence." (People v. Weaver (2001) 26 Cal.4th 876, 910.)

                                                25
       "If a defendant contends that the trial court wrongly denied a challenge for cause,

he or she must demonstrate that the right to a fair and impartial jury thereby was affected.

[Citations.] Initially, a defendant must establish that he or she exercised a peremptory

challenge to remove the juror in question, exhausted the defendant's peremptory

challenges, and communicated to the trial court the defendant's dissatisfaction with the

jury selected. [Citations.] '[I]f he can actually show that his right to an impartial jury

was affected because he was deprived of a peremptory challenge which he would have

used to excuse a juror who sat on his case, he is entitled to reversal; he does not have to

show that the outcome of the case itself would have been different.' " (People v.

Crittenden (1994) 9 Cal.4th 83, 121.)

       Here, defense counsel moved to excuse Prospective Jurors Nos. 1, 12, 18 and 32

for cause. The court granted the challenge only as to Prospective Juror No. 32, and

counsel exercised peremptory challenges to remove Prospective Jurors Nos. 1, 12, and

18. Counsel did not exhaust all of his 10 peremptory challenges; he had one challenge

remaining. Defendant concedes he did not express his dissatisfaction with the jury

selected until during the new trial motion, but claims that sufficed. We disagree. "[T]he

issue was not preserved for appeal, as it is possible that counsel, despite initial

misgivings, was ultimately satisfied with the overall composition of the jury. Also

possible is that, had counsel expressed dissatisfaction, the trial court would have allowed

him to exercise additional peremptory challenges." (People v. Weaver, supra, 26 Cal.4th

at p. 911.)



                                              26
       To the extent Suazo contends he received ineffective assistance of counsel under

Strickland v. Washington (1984) 466 U.S. 668, the claim fails because he cannot establish

prejudice in light of the fact he exercised his peremptory challenges to remove three of

the allegedly biased jurors, and he did not exercise all of his peremptory challenges.

(Accord, People v. Beames (2007) 40 Cal.4th 907, 924 925; People v. Avila (2006) 38

Cal.4th 491, 540.) "Establishing Strickland prejudice in the context of juror selection

requires a showing that, as a result of trial counsel's failure to exercise peremptory

challenges, the jury panel contained at least one juror who was biased." (Davis v.

Woodford (9th Cir. 2004) 384 F.3d 628, 643.) Suazo concedes he is unable to identify

any particular biased juror who was empanelled in this case. (See People v. Blair (2005)

36 Cal.4th 686, 742-743 ["defendant fails to identify any juror whom he would have

excused had he not used his peremptory challenges to remove [2 jurors]. [Citations.]

Accordingly, focusing on the 12 jurors who actually decided defendant's case, as we

must, [citation], we conclude that defendant has not established that his right to an

impartial jury was violated."] )

                                             C.

       Suazo contends the trial court impermissibly restricted his voir dire by its

comment made to defense counsel outside of the prospective jurors' hearing. We

disagree.

Background

       During voir dire, a prospective juror asked about the bifurcation of proceedings

between a guilt phase and a hearing regarding the insanity defense. The court explained

                                             27
the differences between the guilt and sanity phases. Other prospective jurors asked how

they would know if the defendant was faking the symptoms of insanity to avoid going to

prison, and who had the burden of proof in the insanity phase. The court responded to

both questions. Defense counsel next asked some prospective jurors whether they

considered the insanity defense a loophole in the law, and they replied that they would

require proof before making a finding of the defendant's insanity.

       Immediately afterwards, the court told counsel the statement that Suazo challenges

on appeal: "In light of the questions by [defense counsel], what I propose at this time is

to tell the jury that as to insanity, were we to get to phase two of this trial, the burden of

proof is on the defendant to prove he was insane at the time of the . . . crime, and the

burden of proof is by a preponderance of the evidence, and that I will be giving them

specific instructions on what constitutes legal insanity. [¶] And then let's try and drop

that because we're going to be here for a week, and nobody's going to give you the

answer you want." (Italics added.)

       The court proceeded to instruct the prospective jurors on California law regarding

bifurcated proceedings involving insanity pleas: "In light of [defense counsel's] questions

concerning, if we get to phase two of the trial, what's this insanity stuff, I want to tell you

briefly and then move on, that were we to get to the second phase of the trial, the question

is whether or not Mr. Suazo was legally insane at the time of the commission of the

homicide. That's the issue. [¶] The burden of proof on that phase of the trial is that of

the defendant. So it's a different party that has the burden of proof. And the definition of

the burden is not beyond a reasonable doubt, but, rather, a lower burden of proof called

                                              28
by a preponderance of the evidence. In short, that means was it more likely than not that

Mr. Suazo was legally insane at the time of the crime. [¶] Finally, as to the definition of

legal insanity, California law has a rather specific definition of what constitutes legal

insanity, and that law I will give you if and when the time comes. So I hope this puts it in

a better framework. Because I didn't get into this with you earlier as to how this type of

trial would proceed assuming you find him guilty, assuming we have a second trial,

second phase of insanity. So it's a whole different process. I will painstakingly take you

through it as to how we approach it and how you approach it. But at this point in time, I

think you now have enough information as to the process, the legal process that we go

through when a plea of not guilty by reason of insanity is also made."

       Following the court's instruction, defense counsel asked prospective jurors

whether they would hold the defendant to a higher burden of proof than the

preponderance of the evidence standard applicable in the insanity phase, and they replied

they would follow the applicable law. Defense counsel also asked whether anyone

thought the defense should be required to prove insanity under the beyond a reasonable

doubt standard, and some agreed, but insisted that they would abide by the court's

instructions regarding the law.

Analysis

       "It shall be the duty of the judge to control all proceedings during the trial, and to

limit the introduction of evidence and the argument of counsel to relevant matters, with a

view to the expeditious and effective ascertainment of the truth regarding the matters

involved." (§ 1044.) "In exercising its discretion under section 1044, a trial court must

                                              29
be impartial and must assure that a defendant is afforded a fair trial. [Citation.] When

there is no patent abuse of discretion, a trial court's determinations under section 1044

must be upheld on appeal." (People v. Cline (1998) 60 Cal.App.4th 1327, 1334.)

       Suazo did not preserve the issue for appeal because he did not object to the court's

suggestion that he restrict his questions regarding the prospective jurors' attitude toward

the insanity phase. "The controlling principle is that a defendant may not challenge on

appeal alleged shortcomings in the trial court's voir dire of the prospective jurors when

the defendant, having had the opportunity to alert the trial court to the supposed problem,

failed to do so." (People v. Fuviava (2012) 53 Cal.4th 622, 653.)

       Moreover, the court's ruling came after it had permitted the defense an extended

opportunity to question the prospective jurors regarding the insanity phase, and in light of

the court's instruction on that matter. Suazo has presented no evidence that the court

abused its discretion in controlling the proceedings by its ruling. Finally, following the

court's ruling, defense counsel continued asking the prospective jurors questions

regarding their view of the insanity standard. Thus, defense counsel plainly was not

inhibited by the court's earlier suggestion.

       We reject Suazo's reliance on People v. Cash (2002) 28 Cal.4th 703, which unlike

the present case, involved the death penalty. The Cash court concluded it was error for

the trial court to prohibit any question about the death penalty during jury selection.

Here, the court permitted inquiry regarding the insanity defense and provided counsel an

opportunity to explore the prospective jurors' views on that issue. Again, "[a]ny claim of



                                               30
prejudice, however, is necessarily speculative." (People v. Ochoa (1998) 19 Cal.4th 353,

448.)

                                              II.

        Suazo contends the trial court erroneously instructed the jury regarding the

presumption of sanity during the guilt phase, violating his constitutional rights to due

process and a fair trial under the Fifth and Sixth Amendments of the Federal

Constitution.6 He further contends the instructions violated California law. He argues

the court compounded the error when it rejected his proposed instruction that sanity is a

legal issue and not a medical one. Suazo relies on two federal cases, Stark v. Hickman

(9th Cir. 2006) 455 F.3d 1070 and Patterson v. Gomez (9th Cir. 2000) 223 F.3d 959,

involving murder trials and bifurcated proceedings to address insanity pleas, as well as

the California Supreme Court's decision in People v. Mills (2012) 55 Cal.4th 675 (Mills),

which was decided after the trial in this case.



6       Here, the court instructed prospective jurors during voir dire: "When a defendant
pleads not guilty by reason of insanity, during the guilt phase of the trial, the defendant
shall be conclusively presumed to have been sane at the time of the offense that is alleged
to have been committed, which means that for purposes of the guilt trial, Mr. Suazo is
conclusively presumed to have been sane. [¶] If and only if we get to the sanity trial,
then that issue of whether he was sane or not comes into play." The Court continued, "As
I indicated to you, you'll get further instructions on the issues of sanity and insanity at the
second phase of the trial, if we get there."
        After the close of evidence during the guilt phase, the court similarly instructed the
jury: "When we talked earlier about the two phases of a trial such as this, we talked
about the guilt phase and we talked about the sanity phase. You will remember that I
gave you an earlier instruction as follows: [¶] When a defendant pleads not guilty by
reason of insanity, during the guilt phase of trial, the defendant shall be conclusively
presumed to have been sane . . . at the time the offense is alleged to have been
committed."
                                              31
                                                    A.

       Mills, supra, 55 Cal.4th 675 governs this case. The court there instructed the jury

in part that " '[f]or the purpose of reaching a verdict in the guilt phase of this trial, you are

to conclusively presume that the defendant was legally sane at the time the offenses [are]

alleged to have occurred.' " (Id. at p. 678, fn. 10.) The California Supreme Court

concluded, based on the facts and manner in which the case was tried that there was no

due process violation. It stated, "Whether or not the instructions as a whole were

sufficient to overcome the effect of the presumption of sanity instruction, however, the

manner in which this case was tried leaves us confident there is no reasonable likelihood

that the jury gave effect to the conclusive presumption. Defense counsel strongly urged

the jury to consider the mental health evidence in determining whether defendant had

acted in unreasonable self-defense. Indeed, this was the centerpiece of the defense." (Id.

at p. 679.)

       The instruction given here is substantively identical to the one the Mills court

found "had no bearing on any issue before the jury at the guilt phase of defendant's trial."

(Mills, supra, 55 Cal.4th at p. 676.) However, here, in light of the way this case was

tried, we are likewise confident there is no reasonable likelihood the jury gave effect to

the conclusive presumption. During closing argument, defense counsel repeatedly

emphasized that the crux of the case was Suazo's reduced mental state. Specifically,

defense counsel argued: "[D]uring jury selection, you said you want the facts. Well, we

gave you the facts. We gave you all the evidence. We gave you facts. And you heard

about [Suazo's] thought disorders. You heard about his bizarre behavior. This is not

                                               32
because of drugs. This is not because of alcohol. Ian Suazo is mentally ill. And if the

government felt that this was all because of drugs and alcohol, why didn't they bring in a

psychiatrist or psychologist to tell you otherwise? Couldn't find one." Defense counsel

further argued: "[Suazo] was completely irrational that night. Sawing off your arm to

the point where—even Officer Hartman, [the pathologist], and even Brian Kennedy told

you he almost severed his arm off. Is that rational? Is that rational? Pouring salt around

your windows to keep out the evil spirits. Is that rational behavior? Is Googling

protection against soul collection rational? Is that rational behavior?" Defense counsel

also criticized the prosecution's theory of the case: "[The prosecution] can't have it both

ways. They can't stand here in their closing argument and during their cross-examination

of all the witnesses and take you down this path of drugs, alcohol, drugs, alcohol, this is

drugs, alcohol, and then stand here and tell you, 'well, he was rational and able to

premeditate and deliberate.' Can't have it both ways."7




7       In summarizing the evidence, defense counsel further called attention to Suazo's
mental illness, arguing: "What did Paul tell you about that night? That he was so
concerned about [Suazo] . . . because he was pacing back and forth inside the house, back
and forth, in and out of the house. He was just pacing. . . . [Suazo] had his hands on his
chest. He looked up like a demon. Looked like a demon. Delusional. He's mentally ill.
He was hearing voices. He was drinking. He was doing drugs. And [Suazo] told you, 'I
just remember carving my wrist.' "
        Defense counsel also argued: "You heard Julie's testimony. From 2006 to 2008
when [Suazo was] free of drugs and alcohol, he was suspicious of birds. He was
suspicious of bugs. He thought he could hear voices from the vents. He was always
talking about these crows and these black birds . . . paranoia, mental illness, completely
irrational. And Julie told you and Nathan told you that in that time frame he was still
hearing voices. He was completely paranoid still."
                                             33
       In fact, so strong was defense counsel's focus on Suazo's mental condition during

closing arguments that at the start of rebuttal arguments, the prosecutor stated, "At one

point in time I thought I had fallen asleep and woken during the sanity phase of the case

because that's what it sounded like we were talking about there. But as I indicated before

and as his honor indicated to you, this particular phase that we're in, it's the guilt phase."

       Although here the prosecution did refer to the presumption of sanity more times

than the one time the prosecutor in the Mills case did, the thrust of the prosecutor's

closing argument here was the same as in Mills: "She placed great weight on the

testimony of the eyewitnesses and the physical evidence, contending that defendant's

version of the events was inconsistent with what others saw." (Mills, supra, 55 Cal.4th at

p. 679.) Accordingly, we also conclude that "In light of the prosecutor's arguments

challenging the merits of the defense theory, it is highly unlikely that the jury would base

its decision on the presumption of sanity instead of the evidence and the proper

instructions." (Ibid.)

                                                   B.

       The Mills court held that as a matter of state law, the instruction is no longer to be

given in the guilt phase: "The presumption of sanity is not pertinent to any issue at a trial

on the question of guilt. The matter of the defendant's sanity is not before the jury, and

evidence of insanity is inadmissible. [Citations.] In a bifurcated trial under section 1026,

it is proper to inform the jury of the procedure specified by statute, but there is no reason

to tell it, before or during the guilt phase, that the defendant is conclusively presumed

sane for purposes of trial. [¶] The Legislature's intent in providing for bifurcation when

                                              34
a defendant pleads both not guilty and not guilty by reason of insanity was to simplify the

issues before the jury, by 'remov[ing] entirely from the first stage of the trial any issue as

to legal sanity.' [Citation.] The defendant is presumed sane for procedural purposes, not

for any evidentiary purpose. [Citations.] An instruction on the presumption of sanity

only complicates matters at the guilt phase by injecting the subject of sanity before it is at

issue." (Mills, supra, 55 Cal.4th at p. 681.) Nevertheless, the court noted that this

instructional error regarding an inapplicable legal theory is reviewed under the reasonable

probability standard of People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (Mills, at

p. 681.)

       Applying the Watson standard, we conclude it is not reasonably probable Suazo

would have had a more favorable outcome. The evidence of Suazo's guilt was strong and

direct. He does not deny he killed Raines. The trial court properly instructed regarding

the mental state required for a finding of homicide and first and second degree murder.

"We have explained in connection with defendant's due process argument that the jury

was not reasonably likely to have applied the presumption of sanity to foreclose

consideration of his mental state evidence. That analysis applies equally to the question

of prejudice under Watson[, supra, 46 Cal.2d 818]." (Mills, supra, 55 Cal.4th at p. 766.)

We are satisfied that it is not reasonably probable that absent the instruction on the

presumption of sanity that the jury would have reached a different verdict. 8



8       The trial court rejected Suazo's new trial motion brought on the ground that the
court had improperly instructed regarding the presumption of sanity in the guilt phase,
stating: "I thought [the defense] hit a home run on the guilt phase. That could have just
                                              35
                                             III.

       Suazo contends the court erroneously instructed the jury with CALCRIM No. 372

regarding flight because insufficient evidence supported it. He specifically argues: "[B]y

exiting the apartment and venturing out onto the public street dripping a visible 'blood

trail,' [he] patently increased, rather than lessened, the odds of his discovery and capture.

[¶] Likewise, his subsequent decision to throw himself in front of a moving vehicle,

preceded by reports he was running in and out of traffic, could hardly be viewed as

efforts to avoid apprehension as they also increased the odds of his discovery and

capture." He maintains the flight instruction lessened the prosecution's burden of proof,

thus violating his rights under the Sixth and Fourteenth Amendments to the United States

Constitution.

       During the guilt phase of the trial, the court instructed the jury with CALCRIM

No. 372: "If the defendant fled or tried to flee immediately after the crime was

committed, that conduct may show that he was aware of his guilt. If you conclude that

the defendant fled or tried to flee, it is up to you to decide the meaning and importance of

that conduct. However, evidence that the defendant fled or tried to flee cannot prove

guilt by itself."




as easily been first degree murder. But the manner in which the defense presented its
case, essentially the jury found that the killing was not premeditated. And it appears to
the court, who heard the case along with this jury, that the jury accepted the defense
position that . . . without calling expert witnesses but referring colloquially to witnesses
who describe Mr. Suazo as nuts, crazy. [¶] And with the evidence of . . . intoxication
through alcohol and/or drugs, [the jury] . . . unanimously found that the prosecution did
not prove [first degree murder in the guilt phase]."
                                             36
         Whenever the prosecution relies in part on evidence of the defendant's flight, the

trial court has a sua sponte duty to instruct the jury with CALCRIM No. 372 or its

equivalent. (§ 1127c.) "Evidence that a defendant left the scene is not alone sufficient;

instead, the circumstances of departure must suggest a purpose to avoid being observed

or arrested." (People v. Bonilla (2007) 41 Cal.4th 313, 328, internal quotations omitted.)

         Here, when Paul returned to the apartment, water was running in the bathtub and

Suazo had left. Detectives found a blood trail leading to the beach. Suazo told detectives

that after the murder, he ran to the beach. When police detained Suazo several hours

later, he gave them a false surname. The foregoing evidence sufficed to instruct the jury

regarding flight. We note that Suazo's trail of blood and his subsequent suicide attempt

in traffic are not inconsistent with flight. "To obtain the instruction, the prosecution need

not prove the defendant in fact fled, i.e., departed the scene to avoid arrest, only that a

jury could find the defendant fled and permissibly infer a consciousness of guilt from the

evidence." (People v. Bonilla, supra, 41 Cal.4th at p. 328.)

         Suazo concedes that his giving the police a false surname "could have been

consistent with 'consciousness of guilt.' " He adds, "However. . . it was equally

consistent with confusion on Suazo's part given his psychosis and all that had occurred."

The argument is unavailing. "The evidentiary basis for the flight instruction requires

sufficient, not uncontradicted, evidence." (People v. Richardson (2008) 43 Cal.4th 959,

1020.)

         California courts have rejected the contention that the flight instruction creates an

unreasonable inference and lowers the prosecution's burden of proof. (People v.

                                               37
Navarette (2003) 30 Cal.4th 458, 502 [CALJIC No. 2.52]; People v.Mendoza (2000) 24

Cal.4th 130, 179-180 [" ' "A permissive inference violates the Due Process Clause only if

the suggested conclusion is not one that reason and common sense justify in light of the

proven facts before the jury." ' "]; People v. Paysinger (2009) 174 Cal.App.4th 26, 31-32

[CALCRIM No. 372]; People v. Hernandez Rios (2008) 151 Cal.App.4th 1154, 1157-

1159 [CALCRIM NO. 372].) Permitting "a jury to infer, if it so chooses, that the flight

of a defendant immediately after the commission of a crime indicates a consciousness of

guilt" does not violate due process. (Mendoza, at p. 180.)

                                               IV.

       Suazo contends the jury's finding he was sane must be reversed because the

evidence of his insanity was so substantial that a jury could not reasonably reject it.

Standard of Review

       Insanity, under California law, means that at the time the offense was committed,

the defendant "was incapable of knowing or understanding the nature and quality of his

or her act and of distinguishing right from wrong." (§ 25, subd. (b); People v.Skinner

(1985) 39 Cal.3d 765, 776-777.) However, insanity may not be based solely on an

addiction to, or the abuse of, intoxicating substances. (§ 29.8 ["In any criminal

proceeding in which a plea of not guilty by reason of insanity is entered, this defense

shall not be found by the trier of fact solely on the basis of . . . an addiction to, or abuse

of, intoxicating substances."].)

       "The 'sanity trial is but a part of the same criminal proceeding as the guilt phase '

[citation] but differs procedurally from the guilt phase of trial 'in that the issue is confined

                                               38
to sanity and the burden is upon the defendant to prove by a preponderance of the

evidence that he was insane at the time of the offense.' " (People v. Hernandez (2000) 22

Cal.4th 512, 521.)

       We apply the substantial evidence test in our review of the jury's sanity verdict.

"A state court conviction that is not supported by sufficient evidence violates the due

process clause of the Fourteenth Amendment and is invalid for that reason." (People v.

Rowland (1992) 4 Cal.4th 238, 269, citing Jackson v. Virginia (1979) 443 U.S. 307, 313-

324.) In determining the sufficiency of the evidence, "[t]he relevant question is whether,

after viewing the evidence in the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime beyond a reasonable doubt."

(Jackson v. Virginia, at p. 319.) "[T]he court must review the whole record in the light

most favorable to the judgment below to determine whether it discloses substantial

evidence—that is, evidence which is reasonable, credible, and of solid value—such that a

reasonable trier of fact could find the defendant guilty beyond a reasonable doubt."

(People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Chavez (2008) 160 Cal.App.4th

882, 891 ["[T]he substantial evidence test applies to appellate review of a sanity

determination."].) However, "[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 trier

of fact's finding to the contrary, we must find as a matter of law that the [trier of fact]

could not reasonably reject the evidence of insanity." (People v. Skinner (1986) 185

Cal.App.3d 1050, 1059.) In addition, "jurors are not automatically required to render a

verdict which conforms to [even] unanimous expert opinion as to a defendant's sanity.

                                              39
Our Supreme Court has frequently upheld on appeal verdicts finding a defendant sane in

the face of contrary unanimous opinion." (People v. Duckett (1984) 162 Cal.App.3d

1115, 1119.)

Analysis

       Here, Dr. Dietz opined Suazo understood the nature and quality of his actions

because he told the detectives that the voices he heard did not tell him to hurt Raines or

Paul. Further, based on the wounds he inflicted on Raines's vital regions, Suazo appeared

intent on harming him. Dr. Carroll testified based on Raines's wounds and in light of

Blair Robb's testimony that he heard Raines plead that Suazo was killing him, that Suazo

was aware of the nature and quality of his acts. This expert evidence itself constitutes

substantial evidence to support the jury's finding of sanity, despite the existence of

contrary expert opinion and evidence. Accordingly, we adopt the complete analysis of an

earlier case on similar facts: "As to the question whether defendant was sane at the time

the crime was committed, the opinion of the psychiatrist[s] called by defendant was

opposite to that of the qualified expert called by the prosecution. . . . [T]he jury's

finding, supported both by the presumption and other substantial evidence, is immune

from successful attack." (People v. Dean (1958) 158 Cal.App.2d 572, 577-578; accord,

People v. Chavez (2008) 160 Cal.App.4th 882.)

       Suazo's reliance on People v. Duckett, supra, 162 Cal.App.3d at page 1123 is

unavailing. There, the court concluded the jury was presented with no circumstances

permitting it to reject the expert's opinion that the defendant was legally insane. By

contrast, here, as noted, Dr. Dietz's and Dr. Carroll's testimony provided sufficient basis

                                              40
contradicting that of other experts' findings that Suazo was insane when he murdered

Raines. (People v. Chavez, supra,160 Cal.App.4th at p. 891.) 9

                                             V.

       Suazo contends the court did not adequately nor accurately instruct the jury with

CALCRIM No. 3450 regarding the effect of intoxication on the defense of insanity.

Specifically, he contends the court preinstructed the jury with one version of the



9       We note the trial court rejected Suazo's similar argument at the new trial motion
and stated the evidence sufficed to support the jury's finding of sanity: "The second basis
[for the new trial motion] is that the jury's verdict of sanity was contrary to the law and to
the evidence. Likewise, seated as a 13th juror, that basis fails. [¶] No one testified, as
this Court recalls, that Mr. Suazo did not have a mental illness. Were it to stop there and
were the only requirement to be that Mr. Suazo at the time of the killing had a significant
severe mental illness, if that were the definition of insanity, I'd grant a new trial. [¶] But
to follow through the law of insanity in California, the defense must prove that because of
the mental illness, Mr. Suazo did not know . . . both the nature and quality of his act and
the difference between right and wrong . . . it fails on both accounts. [¶] This was a . . .
lying in wait killing where Mr. Suazo used and selected . . . not a rubber duck to slice the
roommate's neck but a serrated knife, and he waited with that knife. And when the
roommate said, 'Stop. You're killing me,' [Suazo] didn't stop. He kept doing it. [¶] And
then afterwards the acts of Mr. Suazo, albeit strange and seemingly unbelievable, were
nonetheless consistent with a consciousness of guilt. He tried to drown himself. He tried
to cut off his hand. And failing both of those attempts, he jumps in front of a car, and
that doesn't . . . work either. [¶] There's no question but that Mr. Suazo knew that what
he was cutting was a person, not . . . an inanimate object or animal. That the
instrumentality was appropriate to the task. That the lying in wait was appropriate to
catching the roommate by surprise. And then we know from the evidence that his . . .
recent employment termination is believed by Mr. Suazo to be [Raines's] fault. [¶] So,
you know, all of that is consistent with knowing the nature and quality of the act that
caused the death of the roommate. And it's also consistent with the finding that Mr.
Suazo—the implied finding that Mr. Suazo knew this was morally wrong. His conduct
right after the incident was a clear indication of a consciousness of guilt. . . . [¶] And
this is a horribly bothersome case that was sad and everybody lost. But whether or not
the jury erred in concluding that Mr. Suazo was legally sane at the time of the homicide,
this court finds that there was plenty of evidence to support that finding both on the
nature and quality and the right and wrong tests."
                                             41
instruction, but later instructed with a modified version of the same instruction. Further,

the court did not formulate an instruction for the precise facts presented here. Suazo

contends the errors were prejudicial because the jury was already hostile to the insanity

defense and likely was poisoned by the court's preinstruction with CALCRIM No. 3450,

despite the court later changing its instruction; the prosecutor's examination of expert

witnesses aligned with the disputed portions of CALCRIM No. 3450; and, the

prosecutor's arguments to the jury emphasized the experts' testimony that "but for"

Suazo's use of drugs, the murder would not have happened.

Background

       At the beginning of the sanity phase, the court preinstructed the jury with

CALCRIM No. 3450, including two optional bracketed paragraphs relating to the use of

alcohol and drugs.10 At the end of the sanity phase, the court changed course and,



10      We set forth the court's preinstruction to the jury with the disputed sections of
CALCRIM No. 3450 in brackets: "You must now determine whether Mr. Sauzo was
legally sane or legally insane at the time of the commission of the crime. This is the only
issue for you to determine in this proceeding. You should consider all of the evidence
received in the guilt phase of this trial along with all of the instructions you have been
given which are not inconsistent with the instructions that I will be giving to you. [¶]
You must decide whether Mr. Suazo 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 did not know or understand the nature and quality of his act or did
not know or understand that his act was morally or legally wrong. [¶] None of the
following qualify as a mental disease or defect for purposes of an insanity defense:
personality disorder, adjustment disorder, seizure disorder, or an abnormality of
personality or character made apparent only by a series of criminal or antisocial acts.
        "[Special rules apply to an insanity defense involving drugs or alcohol. Addiction
to or abuse of drugs or intoxicants, by itself, does not qualify as legal insanity. This is
                                             42
following extensive discussions with counsel, instructed the jury with a version of

CALCRIM No. 3450 that excluded the bracketed sections. The court explained its

dilemma revolved around its wanting to give the first bracketed paragraph but not the

second one, for which there was no evidentiary basis; however, the court did not want to

confuse the jury. Defense counsel asked the court, "[Do] you think we should try to

create a special instruction of [CALCRIM No.] 3450?" The court replied, "I think you

true even if the intoxicants cause organic brain damage or a . . . settled mental disease or
defect that lasts after the immediate effect of the intoxicants have worn off. [¶]
Likewise, a temporary mental condition caused by the recent use of drugs or intoxicants
is not legal insanity.]
        "[If the defendant suffered from a settled mental disease or defect caused by the
long-term use of drugs or intoxicants, that settled mental disease or defect combined with
another mental disease or defect may qualify as legal insanity. A settled mental disease
or defect is one that remains after the effect of the drugs or intoxicants has worn off.]
        "You may consider any evidence that the defendant had a mental disease or defect
before the commission of the crime. If you're satisfied that he had a mental disease or
defect [before] he committed the crime, you may conclude that he suffered from the same
condition when he committed the crime. You must still decide whether that mental
disease or defect constitutes legal insanity. [¶] 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's currently sane or may be found sane in
the future. You may not let any consideration about where the defendant may be
confined, or for how long, affect your decision in any way. [¶] You may find that at
times the defendant was legally sane and at other times was legally insane. You must
determine whether he was legally insane when he committed the crime. If you conclude
that the defendant was legally sane at the time he committed the crime, then it is no
defense that he committed the crime as a result of an uncontrollable or irresistible
impulse. [¶] If, after considering all the evidence, all 12 of you conclude the defendant
has proved to you that it is more likely than not that he was legally insane when he
committed the crime, you must return a verdict of not guilty by reason of insanity."

                                            43
ought to read that [first bracketed] paragraph and see if that lets us do what you want to

do, [defense counsel], without going to the . . . next paragraph, which requires, as I read

it, that the mental disease has to be caused by the long-term use of drugs and intoxicants,

which we don't have through expert witnesses verifiable in this case."

       In discussions the next day, the prosecutor argued in favor of instructing with the

two bracketed paragraphs: "[T]his is kind of a hybrid situation we find ourselves in,

insofar as this factually speaking because usually it's . . . either drugs only or it's mental

illness. We have a guy that has a mental illness. We're all agreed on that. Our doctors

agree as well, but what we tried to establish as far as the case was concerned, just because

you have a mental illness doesn't allow you, especially if you have a subjective awareness

of how dangerous using drugs are to your situation, to allow you, if you otherwise

conduct your life in what . . . can be otherwise considered a normal manner."

       The court stated it would not give the second bracketed paragraph, but questioned,

"Does giving the [first bracketed paragraph] without giving the [second bracketed

paragraph], could that confuse the jury such that if they find that Mr. Suazo is not insane,

that an appellate court would on review of the evidence, the opinions and that instruction,

conclude that the jury was improperly instructed and confused by the giving of that

paragraph? I don't have the answer, obviously."

       Defense counsel replied: "I think that the [first bracketed paragraph] is talking

about addiction or abuse of drugs only, and doesn't talk at all about the use of drugs in

addition to a settled mental disorder independent of the drugs resulting in a temporary

condition. What's happening is the jury is going to be encouraged, as they have been

                                               44
throughout the whole trial, to hold Mr. Suazo responsible for possibly exacerbating an

already severe psychotic condition which has already resulted in at least one attempt on

his own life, and other overt psychotic behaviors on that night also resulted in another

two attempts on his own life, and so what the prosecution is saying is that if a person who

is already involved in a psychotic episode exacerbated his already existing psychotic

episode by doing drugs, that he loses the insanity defense. And that's not what's the law."

       The court concluded, "I'm giving [CALCRIM No.] 3450 except for the two

bracketed paragraphs . . . and I don't think that precludes either [party] from talking about

your theory of the case. So unless you want both [bracketed paragraphs, defense

counsel], I'm going to give neither." Defense counsel replied, "I don't want either."

Defense counsel asked the court to clarify whether the prosecution would "be allowed to

argue to the jury that because Dr. Carroll and Dr. Dietz said that the homicide would not

have occurred but for the ingestion of the cocaine, that therefore Mr. Suazo is ineligible

for the insanity defense?" The court replied in the negative, and later explained: "I just

wish there had been a case before our case that dealt with the use of drugs and alcohol

and a schizophrenic diagnosis. There isn't. I've done the best I can to listen to you all

and be fair to you all, but I just don't believe the state of the law in California on insanity

defenses is that 'but for' the use of alcohol and drugs on the part of Mr. Suazo, who is

schizophrenic, that precluded the defense of insanity."

       Analysis

       The People contend any error was invited. We agree. The doctrine of invited

error applies "to estop a party from asserting an error when 'his own conduct induces the

                                              45
commission of error.' " (People v. Perez (1979) 23 Cal.3d 545, 549-550, fn. 3, italics

omitted.) " 'When a defense attorney makes a "conscious, deliberate tactical choice" to

[request or] forego a particular instruction, the invited error doctrine bars an ar gument on

appeal that the instruction was [given or] omitted in error.' " (People v. McKinnon (2011)

52 Cal.4th 610, 675.)

        Here, defense counsel made a deliberate, tactical decision, telling the court it did

not want instruction with either of the bracketed paragraphs in CALCRIM No. 3450

because including those paragraphs would encourage the jury to hold Suazo responsible

for exacerbating his severe psychosis. Suazo is therefore precluded from challenging the

correctness of the instruction on appeal. (Accord, People v. Hardy (1992) 2 Cal.4th 86,

152.)

        Moreover, defense counsel specifically proposed to the court that he could

formulate a pinpoint instruction, but he never did so. A defendant's failure to request a

clarifying or amplifying instruction at trial waives a claim on appeal that the instruction

given was ambiguous or incomplete. (Id. at pp. 778-779; People v. Cole (2004) 33

Cal.4th 1158, 1211; People v. Hart (1999) 20 Cal.4th 546, 622; People v. Sanchez (2001)

94 Cal.App.4th 622, 635.)

        In any event, on the merits, we still would find no reversible error. The first

disputed bracketed paragraph in CALCRIM No. 3450 is an accurate statement of the law.

It incorporates section 29.8, which states a not-guilty-by-reason of insanity determination

"shall not be found by the trier of fact solely on the basis of a personality or adjustment

disorder, a seizure disorder, or an addiction to, or abuse of, intoxicating substances." The

                                              46
court erred by not instructing the jury with this paragraph, which was applicable here.

However, the asserted error was not prejudicial. Rather, defense counsel was allowed to

argue to the jury in the sanity phase that despite Suazo's drug use he was still entitled to a

sanity defense, and defense counsel stated: "And there has been evidence that Mr. Suazo

used drugs which made his mental condition worse. That doesn't deny him the insanity

defense. It is sad and it is tragic, but it doesn't deny him the insanity defense."

       Defense counsel also rebutted the prosecutor's defense relating to Suazo's drug

use, arguing: "[W]hat you've heard from the prosecution in their argument in the guilt

phase and their . . . opening statement in the insanity phase, was what was presented to

you by [Dr.] Dietz. Drugs, drugs, drugs, drugs, drugs, drugs, drugs; choice, choice,

choice; voluntary, voluntary, voluntary, voluntary. [¶] . . . Even assuming that the

cocaine caused a worsening of Mr. Suazo's psychosis so that it resulted in the death of

Ocie Raines, and if in the opinion of the doctor that the death would not have happened

without the cocaine, does that take the insanity defense away from Mr. Suazo? And what

you heard from Dr. Dietz yesterday afternoon, no, it doesn't. [¶] And so later on today

when you hear about drugs and you hear about Mr. Suazo's voluntary ingestion of the

drugs, and when you hear about how Mr. Suazo took a dose of cocaine that caused him to

do something that he has never done before, that is to be violent, you need to ask yourself

with respect to the insanity law and the insanity analysis that you have to engage in to

follow the law, 'So what?' That ship sailed yesterday afternoon." Here, "if the instruction

had any effect at all, it benefitted appellant by increasing the prosecution's burden of



                                              47
proof." (People v. Aznavoleh (2012) 210 Cal.App.4th 1181.) Therefore, any error was

harmless.

       The court did not err by excluding the second bracketed paragraph because the

evidence did not support giving it. There was no evidence that Suazo suffered from "a

settled mental disease or defect caused by the long-term use of drugs or intoxicants."

"Request for instruction on a legal point should be refused if there is no evidence to

which the instruction may be properly related." (People v. Robinson (1999) 72

Cal.App.4th 421, 428.)

       Misreading of jury instructions is at most harmless error when the written

instructions received by the jury are correct. (People v. Osband (1996) 13 Cal.4th 622,

687.) The written version of jury instructions controls should there be any conflict

between the written instructions and the oral instructions. (People v. Osband, supra, 13

Cal.4th at p. 717; People v. Rodriguez (2000) 77 Cal.App.4th 1101, 1113.) Here, any

error caused by the court's preinstruction with the full version of CALCRIM No 3450

was cured by the jury's access to the redacted version during deliberations. Finally, as

noted, in light of the experts' testimony regarding Suazo's sanity, it is not reasonably

probable the jury would have returned a more favorable verdict absent any error in the

court's instruction regarding Suazo's use of intoxicants.

                                             VI.

       Suazo contends the trial court improperly instructed the jury that it could consider

his refusal to be interviewed by Dr. Dietz. Suazo claims the court should have granted

his request to additionally inform the jury his refusal was on the advice of counsel.

                                             48
Specifically, Suazo argues, "Inviting the jury to speculate, or to punish Suazo for

following the advice of counsel, without informing jurors that he was, in fact, following

the advice of counsel, violated [the] basic tenet" that discovery rules are designed to

ensure a fair and reasonable search for the truth, based on reliable information.

Background

       Before trial, the prosecutor filed a motion asking the court to co mpel Suazo to

submit to an examination by Dr. Dietz under section 1054.3 because Suazo had placed

his mental state at issue. Defense counsel opposed the motion, arguing the requested

examination would violate Suazo's rights to due process and against self-incrimination.

       At a pretrial hearing on the motion, the court tentatively granted the motion

because by pleading not guilty by reason of insanity, Suazo had waived his Fifth and

Sixth Amendment rights to the extent necessary for Dr. Dietz to complete the forensic

examination. The court cautioned that if Suazo refused to submit to the examination, an

instruction regarding the effect of such refusal would be given to the jury. The court

asked Suazo, "Do you refuse to submit to the mental examination by the prosecution

psychiatrist Dr. Dietz?" Suazo answered, "Based on the advice of my counsel, I do

refuse to, your Honor." The court asked Suazo whether he was aware of the

consequences as explained. Suazo responded, "Yes, I am, your Honor."

       During the sanity phase, before the People's first witness, the court reminded the

parties that it had ordered Suazo to be examined by Dr. Dietz, but Suazo had refused.

The court stated that if the People requested it, it would instruct the jury regarding that



                                              49
refusal. The prosecutor stated she was making that request. The court asked her to

prepare a suggested instruction for review.

       In the sanity phase, Dr. Dietz testified he tried interviewing Suazo in 2009, but

defense counsel declined to permit him to evaluate Suazo. In 2010, Dr. Dietz again

unsuccessfully tried to interview Suazo, who stated that "based on advice of counsel, he

refused to be examined."

       The prosecutor submitted a proposed jury instruction stating, "The court in this

case ordered the defendant to submit to an evaluation by Dr. Park Dietz, a psychiatrist

retained by the prosecution, as requested by the prosecution. If you find that the

defendant refused to submit to such evaluation, it is up to you to decide the meaning and

importance of the refusal." Defense counsel asked the court to insert the words, "on

advice of counsel" after "to submit to such evaluation." The court declined the request

and instructed the jury in the language the prosecutor proposed.

Analysis

       Under section 1054.3, subdivision (b)(1), the Legislature broadly authorizes

examination by a prosecution-retained expert whenever the defendant has put his or her

mental condition at issue. (Sharp v. Superior Court (2012) 54 Cal.4th 168, 174-175.)

Here, the court specifically informed Suazo that the consequence of his failure to permit

the interview with the prosecution's psychiatrist was a jury instruction on that issue, but

Suazo nonetheless refused to participate in an interview with Dr. Dietz.

       We conclude Suazo suffered no prejudice from any claimed instructional error

under the applicable Watson standard (People v. Vasquez (2006) 39 Cal.4th 47, 66). As

                                              50
noted, the jury was aware from Dr. Dietz's testimony that Suazo refused the interview

based on his attorney's advice. Additionally, the jury heard testimony from several

psychiatrists, who argued both sides of the issue of Suazo's sanity. Sufficient evidence

supported the jury's finding Suazo was sane when he murdered Raines.

                                                  VII.

       Suazo contends that even if we find no individual error in the guilt phase to have

been prejudicial, the cumulative effect of the alleged errors requires reversal. (People v.

Holt (1984) 37 Cal.3d 436, 458-459.) Having identified but two nonprejudicial

instructional errors, we find no error that, either alone or in conjunction with others,

prejudiced Suazo. (People v. Williams (2013) 56 Cal.4th 165, 201.)



                                       DISPOSITION

       The judgment is affirmed.




                                                                              O'ROURKE, J.

WE CONCUR:


McCONNELL, P. J.


AARON, J.




                                             51
