Filed 4/26/16
                         CERTIFIED FOR PARTIAL PUBLICATION*




                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                               THIRD APPELLATE DISTRICT
                                         (San Joaquin)
                                              ----



THE PEOPLE,

                  Plaintiff and Respondent,                          C073027

        v.                                                 (Super. Ct. No. SF118835A)

DAWSON ANDREW MCGEHEE,

                  Defendant and Appellant.


      APPEAL from a judgment of the Superior Court of San Joaquin County,
William D. Johnson, Judge. Affirmed.

      Scott Concklin, under appointment by the Court of Appeal, for Defendant and
Appellant.

      Kamala D. Harris, Attorney General, Michael P. Farrell, Senior Assistant Attorney
General, Julie A. Hokans and John W. Powell, Deputy Attorneys General, for Plaintiff
and Respondent.




*       Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is
certified for publication with the exception of parts III through VI of the discussion.


                                               1
       Defendant Dawson Andrew McGehee stabbed his mother ten times in the neck,
chest, and abdomen with a kitchen knife; eight of the stab wounds were independently
fatal. By all accounts, defendant was mentally disturbed when he did so. The central
dispute during both the guilt and sanity phases of his murder trial involved the nature and
severity of the disturbance―in the guilt phase, whether defendant actually “premeditated,
deliberated, or harbored malice aforethought” (Pen. Code, § 28); in the sanity phase,
whether defendant was “incapable of knowing or understanding the nature and quality of
his . . . act and of distinguishing right from wrong”―when he stabbed his mother to
death.1 (§ 25, subd. (b).)
       The jury found defendant guilty of second degree murder, during the commission
of which he personally used a deadly weapon, and further found he was legally sane
when he committed the crime. The trial court sentenced defendant to state prison for an
indeterminate term of 15 years to life for the murder, plus a consecutive determinate term
of one year for the use of a deadly weapon, and imposed other orders.
       In the published portion of this opinion, we address and reject defendant‟s claims
that (1) the trial court prejudicially erred and violated his federal constitutional right to
due process by instructing the jury, during the guilt phase of the trial, with CALCRIM
No. 362 on consciousness of guilt along with CALCRIM No. 3428 on the limited use of
evidence of mental impairment; and (2) the trial court prejudicially erred by failing to
instruct the jury on involuntary manslaughter as a lesser included offense to murder.
With respect to the first claim, defendant argues the trial court should have modified
CALCRIM No. 3428 to allow the jury to consider evidence of his mental illness or
impairment―in addition to determining whether he premeditated, deliberated, or


1      Undesignated statutory references are to the Penal Code. Defendant also disputed
his identification as the perpetrator during the guilt phase.


                                               2
harbored malice―in determining whether certain untruthful statements were knowingly
made, and therefore evidenced his consciousness of guilt. As we explain, defendant did
not object to either CALCRIM No. 362 or CALCRIM No. 3428 as given to the jury in
this case. He has therefore forfeited the contention unless the claimed error affected his
substantial rights, i.e., resulted in a miscarriage of justice. (See People v. Anderson
(2007) 152 Cal.App.4th 919, 927.) While we agree the instruction should have been
modified, on this record, there was no miscarriage of justice. Nor were defendant‟s due
process rights violated. Accordingly, the claim is forfeited.
       With respect to the second claim, we conclude there is no substantial evidence in
this record indicating defendant did not actually form the intent to kill when he stabbed
his mother ten times with a kitchen knife. While there is substantial evidence indicating
he may have believed she was a demon when he did so, whether or not this delusion
existed, and if so, whether or not the delusion exonerated defendant for killing―with
express malice―the person he believed to be a demon, was properly reserved for the
sanity phase of the trial.
       In the unpublished portion of the opinion, we reject defendant‟s remaining
contentions. Specifically, we reject his claim the trial court prejudicially erred and
violated his federal constitutional rights by excluding certain out-of-court statements
defendant made, e.g., that demons were coming after him, and admitting other out-of-
court statements establishing the same, but limited the jury‟s consideration of these
statements to circumstantially prove defendant‟s state of mind, rather than allowing the
jury to consider the statements to prove the truth of the matters asserted. The latter
statements were properly admitted as circumstantial evidence of defendant‟s state of
mind, i.e., that he was hallucinating, and not to prove demons were actually coming after
him. And while certain statements were improperly excluded, the error was harmless




                                              3
because the jury heard ample evidence to support the conclusion defendant was
hallucinating. We also reject defendant‟s claim the trial court prejudicially erred and
violated his constitutional rights by instructing the jury, during both the guilt and sanity
phases of the trial, with a modified version of CALCRIM No. 360 regarding the
testifying experts‟ reliance on out-of-court statements in forming their opinions. This
contention is forfeited for failure to object to the modified instruction below; while we
conclude the instruction was technically incorrect in certain respects, the error did not
affect defendant‟s substantial rights. Defendant further asserts prosecutorial misconduct,
including indirect comment on his failure to testify, requires reversal. This claim is also
forfeited, and his alternative claim of ineffective assistance of counsel also fails. And
while defendant did request an instruction informing the jury no adverse inference may
be drawn from his failure to testify, the trial court‟s failure to provide such an instruction
was harmless. Finally, defendant‟s claim of cumulative prejudice also fails.
       We therefore affirm the judgment.
                                           FACTS
       Following the well-established rule of appellate review, we recite the facts in the
light most favorable to the judgment. (People v. Bogle (1995) 41 Cal.App.4th 770, 775.)
Because defendant pleaded both not guilty and not guilty by reason of insanity, trial was
bifurcated into guilt and sanity phases in accordance with section 1026. (See People v.
Elmore (2014) 59 Cal.4th 121, 140-141 (Elmore).) The vast majority of defendant‟s
claims on appeal relate solely to the guilt phase. Indeed, in only one of his contentions
does he claim an error that occurred in the guilt phase also occurred in the sanity phase.
We therefore base our factual recitation solely on the evidence adduced during the guilt
phase of the trial. Sanity phase evidence will be addressed, where relevant, in the
discussion portion of the opinion.




                                              4
                                         The Murder
       In October 2011, defendant lived with his mother and father, Kathleen and
Thomas McGehee, in Manteca.2 He was 26 years old. While defendant previously
worked as a music instructor and server at a local restaurant, his employment “ground to
a halt” earlier in the year. Defendant‟s younger sister, Katelyn, also lived at the house,
having moved back home the previous month after completing a master‟s degree
program. Thomas frequently traveled for business and was out of town during the latter
part of October.
       On Friday, October 28, Katelyn went to a weekend church retreat with her friend,
Samantha. Defendant was home when Samantha came to pick Katelyn up. Despite the
fact defendant and Samantha “had been good friends and he had previously been a
groomsman in her . . . wedding,” defendant “seemed like he wasn‟t very comfortable”
talking to her and “ended up leaving pretty quickly.” Before Katelyn left for the retreat,
her mother agreed to pick her up at the University of the Pacific (UOP) in Stockton the
following Sunday, October 30. The plan was for Katelyn to call her mother about an
hour before she arrived at the school.
       The morning of October 30, Kathleen went to church with one of defendant‟s
older brothers, Justin, and his family. Sometime during the day, she called another of
defendant‟s older brothers, Colin, and left him a voicemail. Colin returned her call
around 4:00 p.m. She was making jambalaya for a potluck the following day and needed
instructions on how to use the rice cooker Colin left at his parents‟ house when he moved
out. The potluck was part of a victims advocacy training program; Kathleen signed up to
become a volunteer advocate in the program through her church. Colin provided his


2       Because of their common last name, we refer to members of defendant‟s family by
their first names.


                                             5
mother with the requested instructions. Kathleen mentioned during the phone call that
she planned to pick Katelyn up that evening. Colin described his mother‟s mood as “very
good.”
         Around 5:00 p.m., Katelyn called her mother to let her know she was about an
hour away from UOP. There was no answer so Katelyn left a message on the home
answering machine. A few minutes later, she received a call from defendant‟s cell
phone, but the call ended “almost immediately.” Katelyn thought the call was a mistake
because defendant “almost never” called her, so she did not try to call him back. Instead,
she called her mother‟s cell phone, which also went unanswered. Katelyn left a
voicemail. About a minute later, she received another call from defendant, who claimed
he was “just calling to see how [she was].” Katelyn told him she had been trying to reach
their mother to pick her up. Defendant responded: “Oh, yeah, I think the home phone
hasn‟t really been working.” Katelyn said she also tried their mother‟s cell phone.
Defendant responded: “Oh, yeah, I don‟t think that‟s been working, either. I think she‟s
having trouble with those two.” Assuming defendant was home, Katelyn asked him to
find out whether their mother was still coming to pick her up. Defendant replied sternly:
“I‟m not at home, Katelyn. I‟m not at home.” Katelyn then asked defendant whether
their mother asked him to pick her up. Defendant denied having been asked to do so
before ending the call. Katelyn found the conversation to be “bizarre” because defendant
rarely called her, and especially not “to just chat.” A couple minutes later, Katelyn tried
the home phone again and left another message.
         Closer to 6:00 p.m., as Katelyn was approaching UOP, she called the home phone
three more times, leaving a final message, and also tried her mother‟s cell phone once
more. Two minutes after Katelyn‟s last message on the answering machine, defendant
again called her. This time, defendant said: “Oh, you know what? We actually sort of




                                             6
talked about that, like maybe we had talked about maybe I could come pick you up.”
Defendant also “made a few remarks about how [their mother] had just been seeming
kind of tired that day.” Katelyn agreed to have defendant pick her up and hung up the
phone.
         Kathleen was murdered in her bedroom sometime between her conversation with
Colin and Katelyn‟s missed calls. She was stabbed ten times in the neck, chest, and
abdomen. There was also evidence of neck compression. Strong circumstantial evidence
pointed to defendant as the murderer, including the fact the jacket defendant was wearing
when he was arrested two days later had his mother‟s blood on it, there was no sign of a
break-in at the house, Kathleen‟s bedroom was “neat, orderly, nothing appeared to have
been taken or broken,” defendant was the only other family member at the house that
weekend, the strange phone calls between defendant and Katelyn described above, and
his equally strange and incriminating behavior after he picked her up at UOP, which we
recount immediately below.
                   Defendant’s Attempts to Prevent Discovery of the Body
         Katelyn‟s friend Samantha and Samantha‟s husband, Ben, waited with Katelyn
until defendant arrived at about 6:30 p.m. Katelyn and Samantha were walking another
girl to her apartment near the UOP campus when defendant pulled into the parking lot.
Defendant engaged in “small talk” with Ben while he waited for Katelyn to get back, but
Ben “got the impression he didn‟t want to really talk.” When Katelyn and Samantha
returned and joined the conversation, defendant “started looking elsewhere” and “seemed
uncomfortable.” Samantha and Ben then helped Katelyn get her bags loaded into
defendant‟s car.
         As defendant and Katelyn drove away, defendant said he had “some errands” to
run, including picking up his “medicine,” which Katelyn understood to be marijuana.




                                            7
Katelyn assumed these would be local errands. Instead, defendant got on the freeway and
headed north to Sacramento. During the drive, defendant seemed “more social” than he
had been in recent years. Katelyn described: “He actually seemed like he was in a good
mood. He seemed cheerful. He was talkative and chatty and just seeming like very
casual.” Defendant talked “positively” about their mother, saying: “Oh, yeah, she‟s been
doing great on her diet. She‟s lost 21 pounds in the last four weeks, but this diet she‟s
doing it‟s only like 500 calories a day. She‟s been acting really tired lately. I think it‟s
not enough calories for her. She‟s been seeming really tired.”
       At some point, Katelyn mentioned her lips were chapped. Defendant offered to
stop at a drugstore so she could pick up some Blistex, which surprised Katelyn because
defendant rarely offered to do things for people, at least during the previous few months.
When defendant stopped at a Walgreens in Sacramento, Katelyn went inside, bought the
Blistex, and used the restroom at the store. She then returned to the car, but defendant
was not there. Katelyn found defendant inside the store, “sort of pacing the aisles.”
       After Walgreens, defendant and Katelyn drove to a fast food restaurant to get
some food. They ate in the car on the way to pick up the marijuana, but defendant
appeared to be lost. He apologized and said: “I usually come out here in the daylight,
but it‟s dark this time, so I‟m -- it‟s throwing me off a little bit.” After about an hour of
“driving up and down . . . the same few streets,” Katelyn asked defendant: “Is there a
specific street that you‟re looking for?” They arrived at the apparent destination soon
thereafter, which was “maybe a minute or two away” from where they started at the
Walgreens. Defendant parked at a Mexican restaurant and said: “I know this might seem
a little strange, but Mom understands. We‟ve done this before. I need to park here and
walk to where I‟m going to go.” Katelyn stayed in the car and locked the doors.




                                               8
Defendant returned from wherever he went about 20 minutes later and said he vomited
during the walk back to the car.
       Defendant then drove Katelyn back to their home in Manteca, arriving just before
11:00 p.m., about four hours after they left UOP. Katelyn unloaded her bags in her room
and then walked to the bathroom. Defendant stopped her in the hallway and said:
“Katelyn, Mom‟s asleep.” Katelyn described his tone as “abrupt and urgent.” She found
the warning to be strange since she assumed their mother was asleep and did not
normally bother her in the middle of the night. Katelyn used the bathroom and then
returned to her room. At various points later in the night, she left her room and found
defendant “sort of pacing in the hallways.”
       The next morning, defendant was already up when Katelyn emerged from her
room. He asked whether she got his text message. Katelyn‟s cell phone died the night
before, so she had not. Defendant explained he texted her earlier in the morning to say
their mother got up at 5:00 or 6:00 a.m. and told him she had not slept well so she would
be staying in bed for the day. When defendant went outside for a few minutes, Katelyn
knocked lightly on their mother‟s door and called for her, but did not receive a response.
She tried to open the door, but it was locked. Concerned, but also conflicted because of
what defendant told her about their mother not sleeping well the night before, Katelyn
knocked a little louder and again called for her mother, but again received no response.
Katelyn then went outside to try to look into her mother‟s window, but the shutters were
closed. Feeling like she was being “paranoid” because she did not have any reason to
disbelieve defendant, Katelyn returned to her room. She then went about her day.
       At defendant‟s suggestion, which he claimed was a request their mother made
earlier that morning, defendant drove Katelyn to the bank so she could take care of an
errand there. Katelyn described his demeanor as “much like the previous night,”




                                              9
explaining: “He was being unusually, you know, cheerful, seeming -- being chatty and
just, you know, eager to have conversations, and just being very casual.” After Katelyn
was done at the bank, defendant asked if she needed to go anywhere else, suggesting
Target. Katelyn said she did not need to go to Target and asked if he did. Defendant
answered: “Not really. Just for fun. Just to go walk around Target.” Katelyn then asked
to go to the AT&T store located on the way back to the house to buy a phone charger.
Defendant suggested they go to a different AT&T store farther away from the house.
After picking up the charger, they returned home. Katelyn then went out to lunch with a
friend. When she returned later in the afternoon, defendant was not home.
      Around 5:30 p.m., still seeing no sign of her mother, Katelyn decided to check on
her again. Knocking on her door and calling for her, progressively louder with each
attempt, Katelyn again received no response. She then called her brother Justin, who told
her to call 911, which she did. Emergency responders arrived a short time later, broke
the lock off the bedroom door, and found Kathleen‟s body in the condition previously
described. Police were then dispatched to the scene. Defendant was arrested early the
next morning. As mentioned, his mother‟s blood was on his jacket when he was taken
into custody.
                                 State of Mind Evidence
      In college, defendant was “energetic,” “outgoing,” “friendly and sociable.” This
began to change sometime between 2008 and 2010. According to Katelyn, he became
reticent to engage in social interaction and was “not very cheerful.” During the two
months Katelyn was back home before the murder, she and defendant “had barely
spoken.” However, she did see defendant being “disrespectful” to their mother on more
than one occasion during these two months. The worst such incident involved defendant,
in Katelyn‟s words, “just berating her and belittling her.” Katelyn continued: “She




                                           10
would speak up for herself sometimes, but [defendant] would usually just stare her down,
and he just was more powerful with words than she was.”
       Defendant‟s older brother Justin testified to changes he observed in defendant‟s
physical movements, placing the onset of these changes around April 2011. That month,
police officers responded to their parents‟ house based on a reported disturbance between
defendant and their father that apparently involved defendant‟s belief his parents could
not kick him out of the house without initiating eviction proceedings; one of the
responding officers informed defendant he could in fact be removed from the house
without such proceedings. According to Justin, it was after this incident that defendant‟s
physical movements changed. Justin described: “I observed him begin to exhibit a lot of
physical mannerisms, physical behaviors that I hadn‟t seen before, and it was very
sudden, sudden emerging of those things, not a very gradual one. It was very sudden. He
began exhibiting lots of shaking mannerisms. He would look off to the side. He would
talk differently, in a stuttering, halting way.” Justin also explained he had seen similar
mannerisms in an uncle, Kathleen‟s brother, who had previously died of Parkinson‟s
disease. However, unlike his uncle‟s symptoms, defendant‟s mannerisms appeared to
come and go. Justin described an incident in which defendant was reading a children‟s
book to Justin‟s children when they were over at the house: “I observed as he sat down
to read to them and he began talking, all of his stuttering stopped and all of his physical
shaking stopped. . . . [¶] . . . I saw his body go from completely normal, functioning
normally, to suddenly resuming all of those physical shaking and eye movements and
voice shaking. It went from on to off as he was reading and all the way back on when he
was done.”
       Justin also testified to a change in his mother‟s behavior before the murder. He
explained she was a “caretaker” for both her brother who died of Parkinson‟s disease and




                                             11
her sister who died of a brain tumor, and she gravitated towards caring for defendant after
her siblings passed away. According to Justin, his mother treated her children “very
differently” depending on “how much life difficulty she believed [they] were
experiencing,” and based on that criterion, defendant received the most attention from
her. Justin described her as “far more protective of him . . . than she was . . . of everyone
else in her life put together.” She also actively avoided conflict and made decisions
based on whether the decision would upset anyone. However, when she began training to
become a victim‟s advocate, she “began to be more assertive.” Justin explained he
“observed her begin to say and do little things that were the kinds of things that would
make someone mad because she believed it needed to be said or done,” which was
something she would never have done in the past.
       Defendant saw a psychiatrist, Dr. John Yarbrough, on two occasions during the
weeks preceding the murder. Dr. Yarbrough described defendant as “noticeably
agitated” during the first interview, elaborating: “He was writhing, moving. He looked
very restless, very uncomfortable. That was pretty much throughout the interview. And
at different parts of the interview when we were talking about things that were very
difficult to talk [about] he would demonstrate difficulty breathing, and it was very
difficult even for someone to talk to him and watch the struggle that he was going
through.” Dr. Yarbrough diagnosed defendant as having post-traumatic stress disorder
(PTSD) and conversion disorder, the latter diagnosis pertaining to the abnormal physical
movements that had no known medical reason. Defendant was taking Celexa, an anti-
depressant, prior to the first appointment. Dr. Yarbrough increased the dosage and added
another medication, Klonopin, for the anxiety. Two weeks later, defendant came back
for a follow-up appointment. His abnormal movements were slightly decreased during




                                             12
the second interview, but were “still quite visible.” During neither appointment did
defendant complain of auditory or visual hallucinations.
       Based on the foregoing, and on expert testimony from Dr. Kent Rogerson, a
psychiatrist who evaluated defendant following the murder and concluded he did not
have a psychotic disorder, but instead suffered from “marijuana dependence in
institutional remission[,] anxiety disorder with panic attacks and psychosomatic
symptomatology, [and] adjustment disorder with anxiety and depression,” the
prosecution argued to the jury that defendant killed his mother with malice and with
premeditation and deliberation. According to the prosecution‟s theory, defendant‟s
mother was his caregiver and defender, at least until the incident that brought the police
to the house the April before the murder. During that incident, defendant‟s mother did
not come to his defense, but instead took her husband‟s side and acquiesced in defendant
being told he could be kicked out at any time. From that point on, defendant started to
mimic the symptoms of Parkinson‟s disease he saw his uncle exhibit in an attempt to gain
his mother‟s sympathy. At the same time, his mother was becoming more assertive due
to her victim‟s advocacy training, which led to confrontations with defendant, and
ultimately to him stabbing her to death.
       The defense theory was that defendant, if he killed his mother at all, did so
because of hallucinations that demons were coming after him, negating the element of
malice required for murder and the elements of premeditation and deliberation required
for first degree murder. This theory was based on the following evidence.
       Dr. Wendy Weiss, a psychologist appointed by the trial court to evaluate
defendant, testified he suffered from schizophrenia. She based this diagnosis on her
review of the police case file, defendant‟s previous psychiatric records, and an interview
with defendant she conducted at the jail. During the interview, defendant‟s grooming




                                            13
was “sloppy” and he made “odd gestures” with his hands, “rubbing his left arm with his
right hand and . . . rubbing his abdomen in an unusual manner.” Defendant also
“complained a lot about physical discomfort,” explaining he felt like there was “fire on
his skin” and “blades under his fingernails.” Defendant‟s history revealed he saw a
psychiatrist in 2010, “complaining of anxiety and hallucinations,” was diagnosed with an
unspecified “psychotic disorder,” and prescribed Perphenazine, an antipsychotic
medication. He also reported hallucinations to at least one therapist he saw around the
same time. Dr. Weiss also reviewed defendant‟s journal, which contained “voluminous”
references to religious concepts that Dr. Weiss concluded, “went well beyond simply
having religious beliefs.” In the journal, defendant recounted visions in which Jesus and
the Holy Spirit visited him in different forms. However, at some point, the visions or
hallucinations became darker, involving “being basically haunted by demons.”
       Two of defendant‟s friends, Andrew Green and Jeffrey Moorehouse, also testified
he complained of being tormented by demons. Green described an incident in which
defendant showed up on his doorstep in the middle of the night wearing pajamas and
saying, “there were demons after him, actual live demons.” Green allowed defendant to
spend the night on his couch, explaining: “He looked very disheveled. He began to
twitch around. He said [the demons] were actually physically attacking him. He was
scared. He didn‟t want to go home.” Defendant also told Moorehouse about the demons.
According to Green and Moorehouse, defendant also began to talk to himself, as though
he were having a conversation with someone who was not there. Green further
confirmed defendant made “shuddering” and “twitching” movements. Eventually,
defendant stopped spending time with Green and Moorehouse altogether.
       Defendant‟s older brother Colin also testified during cross-examination that,
beginning sometime in 2010, while Colin visited home, defendant would sometimes walk




                                            14
around the house at night, in the dark, wearing a Halloween-style mask and coveralls.
Colin described two specific instances in which defendant walked into a room at the
house wearing such a mask, for no apparent reason. On a third occasion, the previous
April, Colin and defendant went to a horror movie together. While they began the movie
sitting next to each other, defendant eventually got up and walked away from his seat.
Colin did not see him for a while and got up to look around the theater. He spotted
defendant sitting alone, in a different row and off to the side, again wearing a mask.
       The jury found defendant guilty of second degree murder. Following the sanity
phase of the trial, the jury found he was legally sane when he committed the crime.
                                        DISCUSSION
                                                I
              Combination of CALCRIM No. 362 and CALCRIM No. 3428
       Defendant contends the trial court prejudicially erred and violated his federal
constitutional right to due process by instructing the jury, during the guilt phase of the
trial, with CALCRIM No. 362 on consciousness of guilt along with CALCRIM No. 3428
on the limited use of evidence of mental illness or impairment. Defendant did not object
to these instructions at trial. “Failure to object to instructional error forfeits the issue on
appeal unless the error affects defendant‟s substantial rights. [Citations.] The question is
whether the error resulted in a miscarriage of justice under People v. Watson (1956) 46
Cal.2d 818, 299 P.2d 243. [Citation.]” (People v. Anderson, supra, 152 Cal.App.4th at
p. 927.) We conclude there was error, but no miscarriage of justice. The claim is
therefore forfeited.
       As given to the jury in this case, CALCRIM No. 362 provided: “If the defendant
made a false or misleading statement before this trial related to the charged crime,
knowing the statement was false or intended to be -- to mislead, that conduct may show




                                               15
he was aware of his guilt of the crime and you may consider it in the determining of his
guilt. [¶] If you conclude that the defendant made the statement, it is up to you to decide
its meaning and importance. However, evidence that the defendant made such a
statement cannot prove guilt by itself.” CALCRIM No. 3428, as given to the jury,
provided: “You have heard evidence that the defendant suffered from a mental disease or
defect or disorder. You may consider this evidence only for the limited purpose of
deciding whether at the time of the charged crime, the defendant acted with the intent or
mental state required for that crime. [¶] The People have the burden of proving beyond
a reasonable doubt that the defendant acted with the required intent or mental state,
specifically express or implied malice aforethought. If the People have not met this
burden, you must find the defendant not guilty of murder.” (Italics added.)
       Defendant argues the trial court should have modified CALCRIM No. 3428 to
allow the jury to consider evidence of defendant‟s mental disturbance in determining
whether the false statements he made to Katelyn following the murder (i.e., their mother
asked him to pick Katelyn up at UOP, she was asleep when defendant and Katelyn
returned home later that night, she got up early the next morning and told defendant she
would be spending the day in bed, and she asked defendant to take Katelyn to run an
errand at the bank) were knowingly false, and therefore evidenced his consciousness of
guilt. We agree.
       In People v. Wiidanen (2011) 201 Cal.App.4th 526 (Wiidanen), the defendant was
convicted of orally copulating an unconscious person. He was intoxicated at the time of
the crime. (Id. at p. 528.) When interviewed by police a few hours later, the defendant
repeatedly denied he orally copulated anyone. (Id. at p. 533.) We held “the trial court
erred in instructing the jury with both the consciousness of guilt instruction (CALCRIM
No. 362) and an unmodified version of the voluntary intoxication instruction (CALCRIM




                                            16
No. 3426)” (id. at p. 528) that informed the jury it may consider evidence of the
defendant‟s voluntary intoxication “only in deciding whether the defendant had the
knowledge that the victim was unconscious of the act at the time of its occurrence.” (Id.
at p. 533, fn. 5.) As we explained, prohibiting the jury from considering evidence of the
defendant‟s voluntary intoxication for any purpose other than deciding whether he knew
the victim was unconscious of the oral copulation was error because such evidence was
also probative of whether or not the defendant‟s denials to police were knowingly false
and therefore evidenced his consciousness of guilt. (Id. at p. 533.)
       Similarly, here, CALCRIM No. 3428 prohibited the jury from considering
evidence of defendant‟s mental illness or impairment for any purpose other than deciding
whether he possessed the required mental state for murder. Like intoxication, mental
illness or impairment has obvious relevance to the question of ability to perceive or recall
events. (See People v. Gurule (2002) 28 Cal.4th 557, 591-592 [mental illness can be
relevant on the issue of credibility if such illness affects the witness‟s ability to perceive,
recall or describe events]; People v. Lewis (2001) 26 Cal.4th 334, 356-357 [insane
delusions of a witness relevant to the jury‟s assessment of the witness‟s ability to
perceive and recollect events].) Here, defendant presented evidence he was suffering
from insane delusions at the time he stabbed his mother to death. Shortly after the
murder, as Katelyn was trying to reach her mother to pick her up at UOP, defendant
called Katelyn and said their mother had asked him to pick her up. Later that night,
defendant stopped Katelyn in the hallway and told her their mother was asleep. The next
morning, defendant told Katelyn their mother got up early, asked defendant to take
Katelyn to run an errand at the bank, and then said she would be staying in bed all day
because she had not slept well. None of these statements was true. If defendant knew
them to be false, they would be evidence of his consciousness of guilt. If, however,




                                              17
defendant‟s mental illness or impairment prevented him from knowing those statements
were false, the statements would not have been probative of his consciousness of guilt.
The jury should have been allowed to consider the evidence of defendant‟s mental illness
or impairment for purposes of assessing consciousness of guilt. (See Wiidanen, supra,
201 Cal.App.4th at p. 533.)
       Defendant also argues the combination of CALCRIM Nos. 362 and 3428 created
an “irrational permissive inference” in violation of his right to due process under the
federal Constitution. Not so. As we explained in Wiidanen, supra, 201 Cal.App.4th 526,
“ „[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.‟ [Citation.]” (Id. at p. 533, italics added.) We concluded there was no
due process violation in Wiidanen “because the „suggested conclusion,‟ i.e., defendant
was aware of his guilt when he made the false statements, was reasonable „in light of the
proven facts before the jury,‟” explaining: “It was not reasonable that defendant made
these false statements due to his intoxication (and therefore without knowledge they were
false) because, as pointed out by the prosecutor during closing argument, defendant
selectively remembered certain things about what allegedly happened at the party that, if
believed, would exculpate him (i.e., he did not orally copulate anybody) but claimed a
hazy memory about other facts (i.e., whether he returned to the house that night) that
would not necessarily inculpate or exculpate him. That defendant had the ability to fake
a clear memory about events that exculpated him and to fake a hazy memory about
neutral facts suggested defendant knew how to contrive even while allegedly drunk.
Therefore, the permissive inference, i.e., defendant was aware of his guilt when he made
the false statements, was reasonable, and the court did not violate defendant‟s due
process rights by giving these instructions.” (Id. at p. 534.)




                                             18
       Here, too, the suggested conclusion defendant was aware of his guilt when he
made the false statements at issue in this case was reasonable in light of the proven facts
before the jury. Indeed, we conclude such a conclusion was more reasonable in this case
than in Wiidanen, supra, 201 Cal.App.4th 526. In addition to making the false
statements, defendant engaged in a concerted effort to keep Katelyn away from their
deceased mother. He picked Katelyn up at UOP and, rather than drive her home,
defendant took her on a four-hour road trip to Sacramento, purportedly to pick up
marijuana. When Katelyn mentioned her lips were chapped, defendant stopped at
Walgreens to allow her to purchase Blistex, which was contrary to his usual reluctance to
do things for people. He then paced the aisles when Katelyn was in the restroom. Back
on the road, defendant drove back and forth down the same street, claiming to be lost.
When he eventually arrived at the purported location, defendant parked the car and
disappeared on foot. Defendant did not drive Katelyn back to the house until after the
time their mother usually retired to her bedroom, which gave defendant the pretext to tell
Katelyn not to disturb her while she slept. Defendant also seemed to be patrolling the
hallway that night. The following day, defendant told Katelyn their mother got up early
and told him she would be staying in bed all day, but she wanted him to take Katelyn to
run an errand at the bank. While defendant and Katelyn ran that errand, defendant also
asked if Katelyn wanted to go to Target to just walk around. Finally, when Katelyn said
she did not need to go to Target, but wanted to go to the AT&T store on the way back to
the house, defendant suggested they go to a different store location, farther from the
house. There would be no reason for defendant to have engaged in this effort to keep
Katelyn away from their mother if he actually believed she were alive. Thus, the
permissive inference that defendant was aware of his guilt when he made the false




                                             19
statements was reasonable, and the trial court did not violate his due process rights by
giving the challenged instructions.
       As we concluded in Wiidanen: “For the same reason the instructions did not
violate due process, the error in giving these instructions was harmless under the state
law standard articulated in People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243.
Namely, it was not „reasonably probable that a result more favorable to the appealing
party would have been reached in the absence of the error.‟ [Citation.]” (Wiidanen,
supra, 201 Cal.App.4th at p. 534.) This also means the error did not affect defendant‟s
substantial rights. (People v. Anderson, supra, 152 Cal.App.4th at p. 927.) Therefore,
the claim is forfeited.3
                                              II
                     Failure to Instruct on Involuntary Manslaughter
       Defendant also claims the trial court prejudicially erred by failing to instruct the
jury, sua sponte, on involuntary manslaughter as a lesser included offense to murder. We
disagree.
       In a criminal case, the trial court “must instruct on lesser included offenses, even
in the absence of a request, whenever there is substantial evidence raising a question as to
whether all of the elements of the charged offense are present. [Citations.] „Substantial
evidence is evidence sufficient to “deserve consideration by the jury,” that is, evidence




3      Anticipating forfeiture, defendant also claims his trial counsel rendered
constitutionally deficient assistance by failing to object to these instructions. Because
such a claim requires a showing of prejudice, i.e., a reasonable probability of a more
favorable result but for counsel‟s unprofessional errors (see Strickland v. Washington
(1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693] (Strickland)), and because we have
concluded there was no such probability, defendant‟s claim of ineffective assistance of
counsel also fails.


                                             20
that a reasonable jury could find persuasive.‟ [Citation.]” (People v. Lewis (2001) 25
Cal.4th 610, 645; People v. Souza (2012) 54 Cal.4th 90, 114.) “On appeal, we review
independently whether the trial court erred in failing to instruct on a lesser included
offense.” (People v. Booker (2011) 51 Cal.4th 141, 181.)
       “Murder is the unlawful killing of a human being . . . with malice aforethought.”
(§ 187, subd. (a).) “Such malice may be express or implied.” (§ 188.) Our Supreme
Court has explained express malice “requires an intent to kill that is „unlawful‟ because . .
. „ “there is no justification, excuse, or mitigation for the killing recognized by the law.” ‟
[Citation.] [¶] Malice is implied when an unlawful killing results from a willful act, the
natural and probable consequences of which are dangerous to human life, performed with
conscious disregard for that danger. [Citations.]” (People v. Elmore (2014) 59 Cal.4th
121, 133 (Elmore).)
       “Manslaughter is the unlawful killing of a human being without malice.” (§ 192.)
“A defendant commits voluntary manslaughter when a homicide that is committed either
with intent to kill or with conscious disregard for life—and therefore would normally
constitute murder—is nevertheless reduced or mitigated to manslaughter.” (People v.
Bryant (2013) 56 Cal.4th 959, 968.) “Two factors may preclude the formation of malice
and reduce murder to voluntary manslaughter: heat of passion and unreasonable self-
defense.” (Elmore, supra, 59 Cal.4th at p. 133.) Prior to 1981, a third factor mitigating
an intentional killing to voluntary manslaughter was diminished capacity. (See Bryant,
supra, 56 Cal.4th at pp. 969-970; see also People v. Saille (1991) 54 Cal.3d 1103, 1110-
1111 (Saille).)
       “Involuntary manslaughter is „the unlawful killing of a human being without
malice aforethought and without an intent to kill.‟ [Citation.]” (People v. Rogers (2006)
39 Cal.4th 826, 884 (Rogers), italics added.) While diminished capacity no longer




                                              21
mitigates an intentional killing to voluntary manslaughter (Saille, supra, 54 Cal.3d at p.
1114), a defendant “is still free to show that because of his [or her] mental illness or
voluntary intoxication, he [or she] did not in fact form the intent unlawfully to kill (i.e.,
did not have malice aforethought). [Citation.] In a murder case, if this evidence is
believed, the only supportable verdict would be involuntary manslaughter or an acquittal.
If such a showing gives rise to a reasonable doubt, the killing (assuming there is no
implied malice) can be no greater than involuntary manslaughter.” (Id. at p. 1117; see
also § 28, subd. (a) [“Evidence of mental disease, mental defect, or mental disorder is
admissible solely on the issue of whether or not the accused actually formed a required
specific intent, premeditated, deliberated, or harbored malice aforethought, when a
specific intent crime is charged”].)
       Thus, in a murder case, instructions on involuntary manslaughter are required
where there is substantial evidence that may come in the form of evidence of the
defendant‟s mental illness, raising a question as to whether or not that defendant actually
formed the intent to kill. (Rogers, supra, 39 Cal.4th at p. 884.)
       Here, defendant stabbed his mother ten times in the neck, chest, and abdomen.
Eight of these stab wounds were independently fatal. There was also evidence of neck
compression. The medical examiner aptly described the infliction of these injuries as
“overkill.” There can be no serious dispute defendant intended to kill when he did this to
his mother. Nor does defendant claim he lacked an intent to kill. Instead, defendant
argues: “If [he] believed, due to a hallucination or delusion, that he was being tormented
and attacked by a demon, as he had hallucinated in the past, the killing would be without
express or implied malice, because he did not believe that he was acting against a human
life.” This argument is foreclosed by the reasoning of Elmore, supra, 59 Cal.4th 121, as
we explain immediately below.




                                              22
       In Elmore, supra, 59 Cal.4th 121, the mentally ill defendant stabbed a woman to
death at a bus stop with a sharpened paint brush handle. He claimed at trial certain
unspecified delusions made him actually, although unreasonably, believe he needed to
defend himself. After requested instructions on imperfect self-defense voluntary
manslaughter were refused, the defendant was convicted of first degree murder. (Id. at p.
130-132.) Our Supreme Court held the instructions were properly refused because the
imperfect self-defense theory, “a form of mistake of fact,” has “no application when the
defendant‟s actions are entirely delusional,” explaining: “A defendant who makes a
factual mistake misperceives the objective circumstances. A delusional defendant holds a
belief that is divorced from the circumstances. . . . Unreasonable self-defense was never
intended to encompass reactions to threats that exist only in the defendant‟s mind.” (Id.
at pp. 136-137.)
       The court then rejected the defendant‟s argument, similar to the one made in this
case, that section 28, subdivision (a), allowed him to introduce evidence of his mental
illness, which “gave rise to his belief in the need for self-defense, and precluded him
from actually harboring malice.” (Elmore, supra, 59 Cal.4th at p. 139.) Acknowledging
such an interpretation of the section was “logically defensible” based on its plain
meaning, the court concluded the statutory scheme as a whole and section 28‟s legislative
history required a different result. (Ibid.) The court explained: “Under California‟s
statutory scheme, „[p]ersons who are mentally incapacitated‟ are deemed unable to
commit a crime as a matter of law. [Citation.] Mental incapacity . . . is determined by
the M’Naghten test for legal insanity provided in section 25, subdivision (b). [Citations.]
Under M’Naghten, insanity is established if the defendant was unable either to
understand the nature and quality of the criminal act, or to distinguish right from wrong
when the act was committed. [Citations.] [¶] A claim of unreasonable self-defense




                                             23
based solely on delusion is quintessentially a claim of insanity under the M’Naghten
standard of inability to distinguish right from wrong. Its rationale is that mental illness
caused the defendant to perceive an illusory threat, form an actual belief in the need to
kill in self-defense, and act on that belief without wrongful intent. [Citations.]” (Id. at p.
140.)
        Where, as in Elmore, supra, 59 Cal.4th 121 and this case, a defendant pleads both
not guilty and not guilty by reason of insanity, “[t]he trial is bifurcated, with the question
of guilt tried first. The defendant is presumed innocent, of course, but in order to reserve
the issue of sanity for the second phase of trial the defendant is also conclusively
presumed to have been legally sane at the time of the offense. [Citations.] Evidence of
the defendant‟s mental state may not be admitted at the guilt phase to prove insanity.
[Citations.] If the defendant is found guilty, the trial proceeds to the sanity phase, where
the defendant bears the burden of proof by a preponderance of the evidence. [Citations.]
„The separation of the two stages of the bifurcated trial is solely for the purpose of
keeping the issues of guilt and sanity distinct; for other purposes, the trial is regarded as
single and continuing.‟ [Citations.]” (Elmore, supra, 59 Cal.4th at pp. 140-141, italics
added; see §§ 1020, 1026; see also People v. Mills (2012) 55 Cal.4th 663, 681
[“Legislature‟s intent in providing for bifurcation when 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‟”].)
        Thus, while section 28, subdivision (a), “allows defendants to introduce evidence
of mental disorder to show they did not actually form a mental state required for guilt of
the charged crime,” this provision “is necessarily limited by the presumption of sanity,
which operates at a trial on the question of guilt to bar the defendant from claiming he [or
she] is not guilty because he [or she] is legally insane.” (Elmore, supra, 59 Cal.4th at p.




                                              24
141; italics added.) That, the court concluded, is exactly what the defendant in Elmore
attempted to do when he claimed imperfect self-defense based solely on delusion during
the guilt phase of the trial: “A claim of self-defense based solely on delusion is more
than a claim of unreasonable self-defense; as we have shown, it is a claim of legal
insanity. If section 28(a) were applied to allow the defendant to make that claim at the
guilt phase, the burden would shift to the prosecution to prove beyond a reasonable doubt
that the defendant was not insane. The statutory scheme would be turned on its head.”
(Id. at p. 145.) Instead, only “relevant evidence of mental states short of insanity is
admissible at the guilt phase under section 28(a)” to negate malice under an imperfect
self-defense theory, e.g., where a defendant “mistakenly believed that actual
circumstances required [his or her] defensive act . . . even if [the] reaction was distorted
by mental illness.” (Id. at p. 146, italics added.) However, evidence that “purely
delusional perceptions caused the defendant to believe in the necessity of self-defense”
may be presented only during the sanity phase of the trial. (Ibid.)
       Here, while defendant makes a slightly different argument than the one advanced
in Elmore, supra, 59 Cal.4th 121, the result is the same. Defendant does not argue he
was entitled to voluntary manslaughter instructions because substantial evidence
supported the view he hallucinated an attack by a demon, and therefore actually, although
unreasonably, believed in the need to use deadly force in self-defense. Such an argument
would be foreclosed by the holding in Elmore. Instead, defendant argues he was entitled
to involuntary manslaughter instructions because substantial evidence supported the view
he hallucinated an attack by a demon, and therefore did not intend to kill a human being,
but instead intended to kill a demon. This too is quintessentially a claim of insanity. Its
rationale is that because of defendant‟s mental illness, he was unable to understand the




                                             25
nature and quality of the criminal act, i.e., he was killing a human being rather than a
demon. Such a claim may be made, but must be made during the sanity phase of the trial.
       The trial court did not err in declining to provide the jury with involuntary
manslaughter instructions.
                                             III
                                      Hearsay Claim
       Defendant also claims the trial court prejudicially erred and violated his federal
constitutional rights by excluding certain out-of-court statements made by defendant, e.g.,
demons were coming after him, and admitting other similar out-of-court statements, but
limiting the jury‟s consideration of these statements to circumstantially prove defendant‟s
state of mind, rather than allowing the jury to consider the statements for their truth. We
disagree.
                                             A.
                                  Additional Background
       Detective Wayne Miller with the Manteca Police Department testified during
cross-examination that he looked through defendant‟s journal. When defense counsel
asked the detective about the contents of the journal, the prosecutor objected on hearsay
grounds, prompting defense counsel to respond: “Judge, it‟s not offered for the truth of
the matter. It‟s going toward what the state of mind of the defendant was. I‟m not saying
demons were coming after him, but he believed they were.” After an unreported bench
conference, the trial court struck from the record defense counsel‟s reference to demons
coming after defendant and admonished the jury not to consider counsel‟s comment for
any purpose. Defense counsel then asked the detective whether defendant‟s journal was
“mostly about religious topics,” to which the detective answered: “Yes.”




                                             26
       Two of defendant‟s friends, Green and Moorehouse, testified during the defense
case. As previously indicated, these witnesses testified defendant told them demons were
coming after him. Green described an incident in which defendant showed up on his
doorstep in the middle of the night wearing pajamas and saying, “there were demons after
him, actual live demons.” Green allowed defendant to spend the night on his couch,
explaining: “He said [the demons] were actually physically attacking him. He was
scared. He didn‟t want to go home.” Defendant also told Moorehouse about the demons.
Prior to the testimony of these witnesses, the prosecutor objected to “either of these
witnesses [coming] in and say[ing] the defendant told me he was having hallucinations.”
Based on defense counsel‟s offer of proof, the trial court allowed the witnesses to testify
defendant told them demons were coming after him, explaining such out-of-court
statements were not being admitted to prove the truth of the matter asserted, i.e., demons
were actually coming after him, but rather as circumstantial evidence of defendant‟s state
of mind. During the testimony, the trial court overruled multiple hearsay objections and
instructed the jury the out-of-court statements were not being offered for their truth, but
as circumstantial evidence defendant was having hallucinations. However, the trial court
did sustain one such objection during Green‟s testimony, after which defense counsel
indicated she would “move on.” The trial court also sustained an unspecific objection
lodged after Moorehouse testified defendant told him God was speaking to him directly.
       In sum, through three witnesses, defense counsel sought to elicit several out-of-
court statements from defendant, most of which were variations of the statement,
“demons are coming after me.” Most of these statements were admitted as circumstantial
evidence of defendant‟s state of mind, i.e., defendant was having hallucinations, and the
jury was so instructed. However, the prosecutor‟s hearsay objection was sustained on




                                             27
two occasions, and a third unspecific objection to a similar out-of-court statement, “God
speaks to me directly,” was also sustained.
                                              B.
                                          Analysis
       Defendant argues the foregoing out-of-court statements were admissible hearsay
under the state of mind exception to the hearsay rule. He is mistaken. They are not
hearsay at all.
       Subject to numerous exceptions, “hearsay evidence is inadmissible.” (Evid. Code,
§ 1200, subd. (b).) Such evidence is defined to mean “evidence of a statement that was
made other than by a witness while testifying at the hearing and that is offered to prove
the truth of the matter stated.” (Id., subd. (a), italics added.) Under the state of mind
exception to the hearsay rule, “evidence of a statement of the declarant‟s then existing
state of mind, emotion, or physical sensation . . . is not made inadmissible by the hearsay
rule when: [¶] (1) The evidence is offered to prove the declarant‟s state of mind,
emotion, or physical sensation at that time or at any other time when it is itself an issue in
the action; or [¶] (2) The evidence is offered to prove or explain acts or conduct of the
declarant.” (Evid. Code, § 1250, subd. (a).)4 For example, had defendant in this case
stated, “I am having hallucinations,” this would be a statement of his then-existing state
of mind offered to prove the truth of the matter stated, i.e., defendant was having
hallucinations.
       “In contrast, a statement which does not directly declare a mental state, but is
merely circumstantial evidence of that state of mind, is not hearsay. It is not received for



4      This exception is also subject to Evidence Code section 1252, which provides:
“Evidence of a statement is inadmissible under this article if the statement was made
under circumstances such as to indicate its lack of trustworthiness.”


                                              28
the truth of the matter stated, but rather whether the statement is true or not, the fact such
statement was made is relevant to a determination of the declarant‟s state of mind.”
(People v. Ortiz (1995) 38 Cal.App.4th 377, 389, italics added.) In the out-of-court
statements offered into evidence in this case, defendant essentially stated, “demons are
coming after me” and “God speaks to me directly.” While offered to prove defendant‟s
state of mind, these statements do not directly declare that mental state, and are therefore
not offered to prove the truth of the matter stated. In other words, the statements were
not offered to prove demons were coming after defendant or God was speaking to him
directly. Instead, the fact defendant made these statements was offered as circumstantial
evidence of his state of mind, i.e., he was having hallucinations. Indeed, defendant
acknowledges in his opening brief: “Obviously, [defendant‟s] claim that he saw demons
was not offered to prove that he was encountering real demons.” Thus, the trial court
correctly allowed most of the statements into evidence as non-hearsay statements relevant
to prove defendant‟s mental state. Moreover, we are more than a little perplexed
defendant would challenge the trial court‟s ruling admitting these statements as
nonhearsay circumstantial evidence of his state of mind simply because of his mistaken
belief they were actually hearsay statements directly stating his mental state, and
therefore admissible under the state of mind exception. Either way, the statements were
admitted, and for the very purpose sought below, i.e., to prove defendant‟s state of mind.
       Where hearsay objections were sustained, the trial court was mistaken. However,
because the jury heard ample evidence defendant believed demons were coming after
him, the error was harmless. (See, e.g., People v. Garcia (2005) 134 Cal.App.4th 521,
540 [assuming exclusion of hearsay statement was error, it was harmless because the
defense presented ample other evidence on the point for which the hearsay statement was
offered].)




                                              29
                                             IV
                               Modified CALCRIM No. 360
       Defendant‟s claim the trial court prejudicially erred and violated his federal
constitutional rights by instructing the jury, during both the guilt and sanity phases of the
trial, with a modified version of CALCRIM No. 360 regarding the testifying experts‟
reliance on out-of-court statements in forming their opinions is forfeited by his failure to
object to the modified instruction below.
                                             A.
                                  Additional Background
       Unmodified, CALCRIM No. 360 informs the jury a particular testifying expert
considered certain out-of-court statements in reaching his or her conclusions as an expert,
and instructs the jury to consider those out-of-court statements only to evaluate the
expert‟s opinion and not as proof the information contained in the statements is true.
       During the guilt phase instruction conference, the prosecutor requested a
modification of this instruction so that a single instruction would apply to the testimony
of Drs. Weiss, Yarbrough, and Rogerson. The modified instruction, as given to the jury,
stated: “Dr. Weiss, Dr. Yarbrough and Dr. Rogerson each testified that in reaching his or
her conclusion as an expert, he or she considered statements made by the defendant,
statements by witnesses who testified about the defendant, and statements made by other
persons who had knowledge about the defendant. You may consider those statements
only to evaluate the expert‟s opinion. Do not consider those statements as proof that the
information contained in the statements is true.” The defense did not object to the
modification.




                                             30
       The same modified instruction was given during the sanity phase of the trial,
except that experts who testified during the sanity phase were named in that instruction.
Again, the defense did not object to the modification.
                                               B.
                                           Analysis
       We first note that because defendant did not object to the modifications below, the
claim of error is forfeited unless “the error affects defendant‟s substantial rights,” i.e.,
“resulted in a miscarriage of justice.” (People v. Anderson, supra, 152 Cal.App.4th at p.
927.) We conclude there was error, but no miscarriage of justice. The claim is therefore
forfeited.
       Defendant argues that because the modified instruction included “statements by
witnesses who testified about the defendant” and instructed the jury to consider those
statements “only to evaluate the expert‟s opinion,” the instruction “effectively precluded
the jury from considering actual trial testimony, including [testimony] about
[defendant‟s] mental condition [which] supported Dr. Weiss‟s opinion that [he] suffered
from schizophrenia prior to and at the time of the offense.” He further argues the claimed
instructional error amounted to a violation of due process because another instruction,
CALCRIM No. 332, informed the jury to “disregard any opinion that you find
unbelievable, unreasonable, or unsupported by the evidence,” and defendant‟s “mental
defect defense was primarily dependent upon Dr. Weiss‟s diagnosis of schizophrenia,
which required a history of hallucinations and delusions,” testimony as to which
defendant claims the jury was precluded from considering for its truth by modified
CALCRIM No. 360.
       We disagree with defendant‟s interpretation of the instruction. A reasonable juror
would have understood CALCRIM No. 360 to be referring to out-of-court statements




                                               31
made to the testifying expert. The fact certain witnesses testified about defendant‟s
mental condition does not render any out-of-court statements made to a testifying expert
admissible for the truth of the matters stated in those out-of-court statements. It was
those out-of-court statements the instruction told the jury to consider only to evaluate the
expert‟s opinion. What was admissible for all purposes was their actual trial testimony.
No reasonable juror would have understood the instruction to preclude the jury from
considering such testimony. For this reason, the combination of modified CALCRIM
No. 360 and CALCRIM No. 332 did not violate defendant‟s federal constitutional right
to due process.
       Defendant also claims the modified version of CALCRIM No. 360 improperly
precluded the jury from considering admissible hearsay statements made by defendant to
Dr. Yarbrough. Specifically, he argues that because Dr. Yarbrough was called as a
prosecution witness, out-of-court statements made to him by defendant were admissible
under the party admission exception to the hearsay rule, and therefore those statements
should have been excluded from the scope of the modified instruction. We agree, but
conclude the error was harmless.
       CALCRIM No. 360‟s bench notes explain: “This instruction should not be given
if all of the statements relied on by the expert were admitted under applicable hearsay
exceptions.” Because the only out-of-court statements relied upon by Dr. Yarbrough
were made by defendant, and these statements were admissible for their truth as
admissions by a party opponent (see People v. Ledesma (2006) 39 Cal.4th 641, 700, fn.
15; Evid. Code, § 1220), Dr. Yarbrough‟s name should have been excluded from the
modified instruction. Defendant asserts the error was prejudicial because defendant told
Dr. Yarbrough he was experiencing pain during the interview, which Dr. Yarbrough
concluded was genuine based on defendant‟s demeanor and physical movements, and Dr.




                                             32
Weiss, in turn, relied in part on defendant‟s complaint of pain to Dr. Yarbrough to
support her diagnosis of schizophrenia. We disagree.
       Even with the inclusion of Dr. Yarbrough‟s name in the modified instruction, such
that the jury was precluded from considering defendant‟s statements to the doctor for
their truth, the jury was not precluded from considering Dr. Yarbrough‟s observations of
defendant, which also evidenced the fact he was experiencing pain during the interview.
Moreover, the lynchpin of defendant‟s prejudice argument is the purported fact Dr. Weiss
relied on defendant‟s statements to Dr. Yarbrough, but this simply is not true. As the
Attorney General points out, Dr. Weiss testified she relied on Dr. Yarbrough‟s records,
which included his conclusion defendant was suffering from psychosomatic pain, not Dr.
Yarbrough‟s testimony concerning defendant‟s statement to him that he was experiencing
such pain. Because Dr. Yarbrough‟s records were hearsay and admissible through Dr.
Weiss‟s testimony not for their truth, but only for the limited purpose of evaluating that
testimony, the jury was properly instructed with CALCRIM No. 360 as to Dr. Weiss‟s
review of those records. Thus, the error in precluding the jury from considering
defendant‟s complaint of pain to Dr. Yarbrough for the truth of the complaint would not
have affected the jury‟s consideration of Dr. Weiss‟s testimony. In any event, as we have
explained, Dr. Yarbrough‟s observations of defendant also supported his conclusion
defendant was genuinely experiencing pain. We therefore conclude the inclusion of Dr.
Yarbrough‟s name in the modified version of CALCRIM No. 360 did not result in a
miscarriage of justice.
       Finally, defendant complains the modified instruction credited prosecution experts
with relying on material they did not actually consider. While technically true, we
conclude this error was harmless as well. As defendant correctly notes, the modified
instruction stated: “Dr. Weiss, Dr. Yarbrough and Dr. Rogerson each testified that in




                                             33
reaching his or her conclusion as an expert, he or she considered statements made by the
defendant, statements by witnesses who testified about the defendant, and statements
made by other persons who had knowledge about the defendant.” (Italics added.) By
making the instruction applicable to each expert witness, the modification states each
such witness considered out-of-court statements made by each category of declarant, i.e.,
defendant, testifying witnesses, and other persons who had knowledge about defendant.
Defendant argues that whereas the modified instruction was correct as to Dr. Weiss, the
prosecution experts did not consider out-of-court statements made by the latter two
categories of declarant at all; therefore, the modified instruction “misled jurors to believe
that the other two relied on the same evidence that Dr. Weiss relied on, . . . and that their
conclusions were as informed as Dr. Weiss‟s conclusion.”
       Viewing the instructions as a whole, as we must, we conclude a reasonable juror
would not have been so misled. This is because the jury was also instructed to “weigh
each opinion against the others” and “examine the reasons given for each opinion and the
facts or other matters on which each witness relied.” At the start of each witness‟s
testimony, the jury learned the basis of that testimony. The jury was also instructed that
some of the instructions “may not apply, depending on [the jury‟s] findings about the
facts.” We conclude the jury would have read these instructions together and determined
that, because Drs. Yarbrough and Rogerson did not testify that they based their expert
opinions on out-of-court statements made by testifying witnesses or other persons with
knowledge about defendant, that portion of modified CALCRIM No. 360 did not apply
and the jury was required to examine their testimony based on the information upon
which they did rely. Thus, while the modified instruction was technically incorrect in
this respect as well, there is no reasonable probability the jury was misled in the way
defendant suggests.




                                             34
       In sum, while the modifications made to CALCRIM No. 360 were erroneous in
the ways described above, there was no miscarriage of justice. For the same reasons, we
reach the same conclusion with respect to the modified instruction provided during the
sanity phase. Accordingly, defendant‟s failure to object to the error forfeits the claim on
appeal.5
                                               V
               Prosecutorial Misconduct and Related Instructional Error
       We address defendant‟s next two contentions together. He claims prejudicial
prosecutorial misconduct, including improper comment on defendant‟s failure to testify,
requires reversal, and further asserts the trial court also violated his federal constitutional
rights by failing to instruct the jury no adverse inference may be drawn from his failure to
testify. Defendant‟s prosecutorial misconduct claims are forfeited for failure to object
and request a curative admonition below. We also reject defendant‟s alternative assertion
of ineffective assistance of counsel. While his related claim of instructional error has
merit, we conclude the error was harmless.
                                              A.
                                   Additional Background
       The prosecutor argued during her closing argument that this case was not about
who killed defendant‟s mother. Defendant stabbed her to death. The main question for
the jury to resolve, the prosecutor argued, was defendant‟s intent when he did so. The
prosecutor then argued the means used, the manner in which the victim was killed, the




5     As with his first forfeited instructional error claim, defendant argues his trial
counsel rendered constitutionally deficient assistance by also failing to object to these
modified instructions. For the reasons expressed in footnote 3, we reject this argument as
well.


                                              35
surrounding circumstances, and defendant‟s statements to Katelyn following the murder
supplied evidence of malice aforethought, as well as premeditation and deliberation.
       Defense counsel began her closing argument by noting the prosecution was
required to prove defendant killed his mother and argued the only evidence connecting
defendant to the crime was the fact his mother‟s blood was found on his jacket, which
could mean he killed her or could mean he found her body, tried to revive her, and then
panicked. Because the latter conclusion was reasonable, defense counsel argued, the jury
was required to accept it. Defense counsel then directed the remainder of her argument to
the points argued by the prosecutor, i.e., defendant‟s intent, and argued defendant‟s
mental disorder negated his actual formation of malice, as well as his having
premeditated and deliberated the crime. At one point during the argument, while
addressing the medical examiner‟s testimony that the method of attack was “overkill,”
defense counsel also challenged his estimate the victim was killed sometime between
4:00 p.m. and 6:00 p.m. the day before her body was discovered, which was based in part
on the fact she spoke to her son Colin around 4:00 p.m. while making jambalaya and had
jambalaya in her stomach contents at the time of the autopsy, which the medical
examiner estimated was consumed shortly before her death. Defense counsel posited
instead that the victim could have been alive that night, ate the jambalaya the following
day around 11:00 a.m., and was murdered sometime after that.
       The prosecutor argued during her rebuttal argument that defense counsel‟s
argument was “full of good storytelling” that was not “based on the evidence.” Rebutting
the suggestion an intruder might have entered the house and killed defendant‟s mother,
the prosecutor pointed out there was no evidence of forced entry into the house, no signs
of a struggle, and nothing was missing. With respect to the suggestion perhaps
defendant‟s mother was alive when defendant picked Katelyn up at UOP and drove her to




                                            36
Sacramento and back, defendant was telling the truth when he told Katelyn the next
morning that their mother got up early and said she would be spending the rest of the day
in bed, and perhaps she was murdered later in the day after getting up while defendant
and Katelyn were out of the house to eat some of the jambalaya she made the day before,
the prosecutor asked the jury to consider whether that theory was “reasonable.” The
prosecutor also pointed out the medical examiner‟s estimate as to time of death was also
based on the level of rigor mortis of the body that would not have fully set in by the time
the victim‟s body was discovered had she been killed after 11:00 a.m. that day.
       It was at this point the prosecutor made the comments defendant claims amount to
prosecutorial misconduct: “Look at the evidence. Look at the evidence. Look at what
you have. Because there‟s always possibilities. We can all sit here and fabricate some
sort of possibility as to what happened. Your job is to just concentrate on what you have,
and that is that testimony and those photographs. [¶] And the most telling explanation is
People‟s Exhibit Number 5. Blood on his jacket. How do you get blood on your jacket if
you don‟t kill her? You‟ve heard no other explanation in evidence. None. Nobody has
got on that witness stand and said anything different to you as to another reasonable
explanation.” Defense counsel did not object to these comments or request a curative
admonition.
       Prior to the closing arguments, during the instruction conference, the trial court
noted the defense requested CALCRIM No. 355, instructing the jury not to consider the
fact defendant did not testify. When defense counsel answered, “Yes,” the trial court
responded: “Okay.” However, that instruction was omitted, apparently unintentionally,
from the instructions given to the jury.




                                             37
                                             B.
                                 Prosecutorial Misconduct
       Defendant argues the prosecutor engaged in reversible misconduct by (1)
misstating the law, specifically the rule that “to justify a conviction on circumstantial
evidence the facts and circumstances must not only be entirely consistent with the theory
of guilt but must be inconsistent with any other reasonable conclusion” (People v. Towler
(1982) 31 Cal.3d 105, 118); and (2) indirectly commenting on his failure to testify in
violation of Griffin v. California (1965) 380 U.S. 609 [14 L.Ed.2d 106] (Griffin).
However, as mentioned, he did not object to the prosecutor‟s comments or request a
curative admonition.
       “„As a general rule a defendant may not complain on appeal of prosecutorial
misconduct unless in a timely fashion―and on the same ground―the defendant made an
assignment of misconduct and requested that the jury be admonished to disregard the
impropriety. [Citation.]‟ [Citation.]” (People v. Hill (1998) 17 Cal.4th 800, 820.) “A
defendant will be excused from the necessity of either a timely objection and/or a request
for admonition if either would be futile. [Citations.] In addition, failure to request the
jury be admonished does not forfeit the issue for appeal if „ “an admonition would not
have cured the harm caused by the misconduct.” ‟ [Citation.] Finally, the absence of a
request for a curative admonition does not forfeit the issue for appeal if „the court
immediately overrules an objection to alleged prosecutorial misconduct [and as a
consequence] the defendant has no opportunity to make such a request.‟ [Citations.]”
(Id. at pp. 820-821.)
       Defendant attempts to get around the forfeiture by arguing he did object to the
prosecutor‟s comment that defense counsel‟s argument was “full of good storytelling.”
However, this objection was phrased simply as, “improper argument,” after which a




                                             38
bench conference was held. The record does not reveal the content of that conference or
the ruling on the objection. Nevertheless, this nonspecific objection to “storytelling”
references would not have put the trial court on notice defendant was also objecting to
later comments purportedly misstating the circumstantial evidence rule and improperly
commenting on defendant‟s failure to testify. For the same reason, defendant‟s reliance
on the exception to the requirement that a curative admonition be requested where the
initial objection is overruled is also misplaced. Defendant made no timely and specific
objection to the comments claimed on appeal to have been improper, nor did the trial
court overrule such an objection so as to obviate the further requirement that a curative
admonition be requested.
       Defendant also argues that because the trial court overruled his objection to the
“storytelling” comments, “any further objection to prosecutorial misconduct in a similar
vein would have been futile.” While we certainly agree similar objections to similar
comments would have been futile, the arguments defendant makes on appeal are very
different than the objection made below. We simply do not know what the trial court
would have done had defendant raised below the issues he now raises on appeal. Finally,
defendant relies on the exception for circumstances in which admonition would not have
cured the harm caused by the misconduct, arguing the purported Griffin error was too
“blatant” to have been cured by admonition. (Griffin, supra, 380 U.S. 609.) We
disagree. The prosecutor‟s comments, even assuming they improperly drew the jury‟s
attention to defendant‟s failure to testify, were not remotely similar to the blatant
violations that occurred in People v. Rodgers (1979) 90 Cal.App.3d 368, 371-372, and In
re Rodriguez (1981) 119 Cal.App.3d 457, 468, upon which defendant relies. Defendant‟s
claims of prosecutorial misconduct are therefore forfeited.




                                              39
       Anticipating forfeiture, defendant argues in the alternative his trial counsel
provided constitutionally deficient assistance by failing to object and request curative
admonitions as to the comments now claimed to have been prosecutorial misconduct.
This argument also fails. “„In order to demonstrate ineffective assistance of counsel, a
defendant must first show counsel‟s performance was “deficient” because his [or her]
“representation fell below an objective standard of reasonableness . . . under prevailing
professional norms.” [Citations.] Second, he [or she] must also show prejudice flowing
from counsel‟s performance or lack thereof. [Citation.] Prejudice is shown when there is
a “reasonable probability that, but for counsel‟s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.”‟” (In re Harris (1993) 5 Cal.4th
813, 832-833; accord, Strickland, supra, 466 U.S. at p. 687.)
       Here, even assuming the prosecutor‟s comments were improper and defense
counsel‟s failure to object and request curative admonitions fell below an objective
standard of reasonableness, we conclude there was no prejudice. Generally, prosecutorial
misconduct is reversible under the federal Constitution “only if the conduct infects the
trial with such „“unfairness as to make the resulting conviction a denial of due process.”‟
[Citation.] By contrast, our state law requires reversal when a prosecutor uses „deceptive
or reprehensible methods to persuade either the court or the jury‟ [citation] and „“it is
reasonably probable that a result more favorable to the defendant would have been
reached without the misconduct”‟ [citation].” (People v. Davis (2009) 46 Cal.4th 539,
612.) Griffin error is reversible unless we can conclude “beyond a reasonable doubt the
error did not contribute to the verdict obtained,” i.e., the standard of Chapman v.
California (1967) 386 U.S. 18 [17 L.Ed.2d 705] (Chapman); Griffin, supra, 380 U.S.
609. (People v. Mesa (2006) 144 Cal.App.4th 1000, 1008.) However, because




                                             40
defendant‟s trial counsel failed to object to the challenged comments, the standard of
prejudice is converted to that of Strickland, i.e., we may reverse only if there is a
“„reasonable probability‟” the result of the proceeding would have been different had
counsel objected. (Id. at pp. 1008-1009; see People v. Ledesma (1987) 43 Cal.3d 171,
208-209; People v. Lucero (1988) 44 Cal.3d 1006, 1032, fn. 6; In re Avena (1996) 12
Cal.4th 694, 721-722; see also Kimmelman v. Morrison (1986) 477 U.S. 365, 382-383 &
fn. 7 [91 L.Ed.2d 305].)
       We conclude there is no such probability. The challenged comments related
solely to whether or not defendant was the killer. While circumstantial in nature, the
evidence that defendant stabbed his mother to death, including the blood on his jacket,
the absence of any evidence of forced entry into the house, the fact defendant was the
only other person home that weekend, the medical examiner‟s estimated time of death
being between 4:00 p.m. and 6:00 p.m., which coincided with defendant‟s strange phone
calls to Katelyn and his agreement to pick her up at UOP, followed by his concerted
efforts to keep her from discovering the body that night and the following morning, was
compelling.
                                              C.
                                    Instructional Error
       For the same reason, we also reject defendant‟s assertion reversal is required
because the trial court failed to instruct the jury no adverse inference may be drawn from
his failure to testify. As in People v. Evans (1998) 62 Cal.App.4th 186, defendant
requested such an instruction below, and it was omitted from the instructions,
“[a]pparently through inadvertence.” (Id. at pp. 188-189.) While this was error under
Carter v. Kentucky (1981) 450 U.S. 288 [67 L.Ed.2d 241], it was harmless under the
Chapman standard of assessing prejudice. (Chapman, supra, 386 U.S. 18.) The only




                                              41
prosecutorial comments arguably drawing the jury‟s attention to defendant‟s failure to
testify were those relating to whether defendant was the killer. Because, as we have
explained, the evidence establishing defendant‟s identification as the killer was
compelling, we also conclude the error was harmless beyond a reasonable doubt.
                                            VI
                                   Cumulative Prejudice
       Finally, we reject defendant‟s assertion cumulative prejudice flowing from the
foregoing assertions of error requires reversal. Each of the errors noted above was
manifestly harmless. We cannot conclude the cumulative effect of these errors requires
reversal.
                                      DISPOSITION
       The judgment is affirmed.



                                                              /s/
                                                 HOCH, J.



We concur:



          /s/
ROBIE, Acting P. J.



             /s/
MAURO, J.




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