Filed 9/8/14 P. v. Lopez CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F065052
    Plaintiff and Respondent,
                                                                              (Super. Ct. No. F09906875)
    v.

JOEY JESSE LOPEZ,                                                                        OPINION
    Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Fresno County. Arlan L.
Harrell, Judge.
         Heather MacKay, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and
Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
       Joey Jesse Lopez appeals from the judgment entered after a jury found him guilty
of first degree murder (Pen. Code, § 187, subd. (a))1 and found true the allegation that he
personally used a firearm in the commission of the offense (§ 12022.53, subd. (d)).
Lopez admitted that he had served a prior prison term (§ 667.5, subd. (b)). The jury
rejected Lopez’s defense that he was legally insane at the time of the killing. The trial
court sentenced Lopez to a total term of 51 years in state prison.
       On appeal, Lopez contends the trial court erroneously admitted evidence of
Lopez’s gang membership and photographs of the victim’s corpse. He also contends
that, in the sanity phase of the trial, the prosecutor committed various instances of
misconduct and that erroneous instructions were given. Finally, he claims cumulative
error. We conclude no prejudicial error occurred and affirm the judgment.
                            STATEMENT OF THE FACTS
Guilt Phase
       On the evening of December 6, 2009, Lopez and his friend Christopher Gonzalez2
were together drinking alcohol and using methamphetamine. The next morning, the two
drove Gonzalez’s uncle’s truck to a friend’s house to continue partying, but were unable
to find the house. With Gonzales driving, Lopez began “acting crazy” and started
shooting a nine-millimeter handgun out the window into the air. Lopez did not respond
to anything Gonzalez said to him. Gonzalez said he had seen the gun before in his
uncle’s truck and assumed Lopez found it there, although he did not see him get the gun.
       Gonzalez drove to a nearby gas station to use a payphone. Once there, Gonzalez
walked toward the payphone while Lopez remained in the truck. When Gonzalez heard
gunshots, he ran back to the truck and saw Lopez, gun in hand, running back to the truck

1      All further statutory references are to the Penal Code unless otherwise stated.
2     In a deal made with the prosecution, Gonzalez pled guilty to being an accessory to
murder in this case.



                                             2.
from a beer truck parked at the gas station. Gonzalez and Lopez jumped into the truck
and drove away.3 Although multiple police cars followed them, Lopez repeatedly told
Gonzalez to keep driving.4 After losing the police vehicles chasing them, the truck
stopped due to tire damage and Gonzalez and Lopez got out and ran.
       The body of Richard Hernandez, dressed in blue clothing, was located face down
near a beer truck in the gas station parking lot. Three spent nine-millimeter shell casings
and bullet fragments from Lopez’s gun were found near the body. Hernandez had been
shot three times, including two bullets that went through both lungs and his aorta, which
caused his death. Officer Todd Frazier did not think Hernandez had any gang ties.
       Four hours after the shooting, Lopez, wearing a hooded sweatshirt, knocked on
Kathy Weber’s door. He was crying and said he wanted help because the police were
after him. Weber shut the door and called 911. Lopez’s gun was found the following
day in Weber’s yard, partially buried, loaded with four live rounds of ammunition.
       Law enforcement officers found Lopez, matching the description given by Weber,
in an alley near Weber’s residence. He identified himself as a Bulldog gang member.
Lopez, sobbing and gasping for air, said he was having problems with his family. The
officers took Lopez to police headquarters. As they passed the murder scene, Lopez cried
profusely, made grunting noises, and stomped his feet in the patrol car.
       In interviews with law enforcement officers, Lopez admitted that he had gotten
drunk the night before, but claimed he did not know anything about the murder, nor did
he know the victim or Gonzalez.5 Lopez told the officers he first tried to fit in to be a
Bulldog when he was about 12 years old. He had multiple tattoos associated with the
Bulldog gang, including a dog paw on his upper right cheek, a dog paw on his stomach,

3      Video surveillance from the store capturing the incident was played for the jury.
4      Video from a police vehicle during the chase was played for the jury.
5      The interviews were recorded, transcribed, and played for the jury.



                                             3.
“Fresno” on his chest, and a dog collar with a dog tag around his neck. According to
Lopez, ever since he started smoking crack when he was 13 or 14 years old, he had
“twisted thoughts” “to go kill scraps,” a derogatory term used by Bulldog gang members
to describe rival gang members. Lopez said the first person to give him crack was a
“scrap,” and voices in his head told him to kill Hernandez and “handle [his] business.”
But Lopez continued to maintain that he was not there when Hernandez was killed.
       Lopez presented no defense.
Sanity Phase
       1. Defense
       On December 4, 2009, just days before the shooting, Lopez’s mother called the
police because Lopez was “going crazy” and might kill himself. Lopez’s mother told
dispatch that she thought Lopez was high on methamphetamine. Paramedics were called
to transport Lopez to a hospital. Because he was so upset and angry, he had to be put on
a gurney in four-point restraints for safety reasons. Lopez admitted girlfriend and family
issues, but denied having hallucinations and delusions. Lopez was diagnosed with
alcohol intoxication.
       On December 6, 2009, the day before the incident, Lopez was seen walking
through the neighborhood barking, screaming, kicking, cussing, and flailing his arms.
When police arrived, Lopez ignored them until they called him by name. Lopez was
again transported to the hospital in restraints. His vital signs were consistent with
“possible sympathomimetic stimulant use,” although he denied any alcohol or drug use.
A paramedic thought Lopez was hearing voices. Lopez was released six hours before the
shooting.
       Lopez’s girlfriend, Nicole Reyes, testified that Lopez needed “a lot of psychiatric
help.” Lopez often got upset and angry because he heard voices in his head, maybe four
times a week. He also got upset and angry that Reyes might leave him, which she did for
a few weeks in November and December of 2009.

                                             4.
       Lopez’s family members explained that Lopez was seriously injured in a car
accident as a small child. His behavior began to change when he tried to become a gang
member while in middle school. Lopez was struck in the head with pieces of asphalt
when he was jumped by a gang, but he did not receive any medical attention for the
injuries. Lopez began exhibiting bizarre behavior when he was 17 or 18; he fought with
his brothers for no apparent reason; he called girls on the telephone and told them the
police were after him; he claimed to hear voices in his head; and he always thought the
mailman was a policeman coming to get him.
       Both Lopez’s girlfriend and brother testified that Lopez smoked marijuana but
denied he had done other drugs, although a former girlfriend said he had used
methamphetamine. He mentioned suicide to his mother and father, but not to the others.
       Dr. Harold Seymour, a clinical psychologist, was retained by the defense to
conduct a sanity evaluation of Lopez. Dr. Seymour examined Lopez for two hours on
November 29, 2011, almost two years after the shooting, and reviewed his psychiatric
history and previous evaluations. Because there was evidence of prior psychotic episodes
dating back almost 11 years, Dr. Seymour did not assess Lopez to determine whether he
was malingering. Based on his review of police reports and interviews, his own
interview with Lopez, and psychiatric records, Dr. Seymour opined that Lopez
understood what he was doing at the time of the shooting but lacked the ability to
distinguish between right and wrong and was, therefore, legally insane. In Dr. Seymour’s
view, Lopez determined something was wrong when police began to follow them while
fleeing the scene.
       Dr. Seymour diagnosed Lopez with bipolar disorder, type 1, mixed with
hallucinations as psychotic features; with personality disorder, not otherwise specified,
with some traits associated with antisocial personality disorder; and as having a history of
polysubstance dependence, although he could not say if Lopez was under the influence at
the time of the shooting. In Dr. Seymour’s view, Lopez’s inability to distinguish right

                                             5.
from wrong was caused by the “psychosis inherent in the bipolar disorder” and not the
personality disorder. Nor did he think drugs or alcohol were the likely cause of the
killing. When asked, Dr. Seymour agreed that a person cannot be found insane due to a
personality disorder.
       According to Dr. Seymour, Lopez had been enrolled in a drug treatment program
in May of 2003 and had not had access to illegal substances for months when he reported
experiencing hallucinations. He received antipsychotic medication, which he claimed
was helping with the voices. But Dr. Seymour acknowledged that Lopez had said that,
after leaving the drug treatment program, he again began using street drugs and the
voices became stronger. Dr. Seymour also acknowledged that delusions and auditory
hallucinations are the easiest type of symptoms to malinger.
       Dr. Laura Geiger, a psychologist, was also retained by the defense to conduct a
sanity evaluation of Lopez, which she did in July of 2011. Dr. Geiger diagnosed Lopez
with schizoaffective disorder, depressive type; as having a personality disorder, with
borderline and narcissistic and antisocial features; and with adult antisocial behavior. Dr.
Geiger explained that the usual age of onset for a psychotic break begins around the age
of 19 or 20.
       Dr. Geiger opined that Lopez’s actions had been in response to command
hallucinations. She thought the prosecution’s expert’s description of Lopez’s auditory
hallucinations as likely not “real” was inaccurate, because it did not take into account
previous examples of Lopez responding to internal stimuli.6 Dr. Geiger tested Lopez “in
part” for malingering, but did not do every available test because there did not seem to be
evidence in the psychological material, interviews, record or tests to support a diagnosis



6     Due to a scheduling conflict, Dr. Geiger testified after the expert for the
prosecution.



                                             6.
of malingering. Instead, Dr. Geiger noted that Lopez exhibited “a very strong motivation
to not want to appear mentally ill.”
       On cross-examination, Dr. Geiger could not rule out the possibility that some of
Lopez’s behavior in December of 2009, including the shooting, was the result of alcohol
intoxication.
       2. The People’s Case
       Dr. Luis Velosa, a psychiatrist, was appointed by the trial court to conduct a sanity
evaluation of Lopez. Dr. Velosa interviewed Lopez in August of 2010 after reviewing
police reports and interviews, interviews with Lopez’s parents, video evidence of the
shooting, medical records, and other evidence relating to the case. Dr. Velosa did not
detect any evidence of bizarre, disorganized, or psychotic behavior during his
examination of Lopez. Although Lopez claimed he heard voices, Dr. Velosa believed
they were not auditory hallucinations but simply internal dialogue, explaining that the
nature of the voices was not irrational or out of context with reality. Lopez
acknowledged that the voices he heard were not real but that he had conversations with
them back and forth in his mind. Lopez told Dr. Velosa that his girlfriend had left him
and he had been kicked out of his house shortly before the shooting; he did not mention
hearing voices when he described those events.
       Dr. Velosa repeatedly opined that, at the time of the offense, Lopez knew what he
was doing, knew that what he was doing was wrong, was able to differentiate right from
wrong, and was not psychotic. Dr. Velosa did not think Lopez was suffering from any
type of mental disease or defect at the time of the shooting and that he was sane at the
time. Instead, he diagnosed Lopez with polysubstance drug dependence because of his
addiction to methamphetamine and cocaine, but that the problem was in remission
because he had not used illegal drugs for some time.
       Former probation officer Cathy Doyden interviewed Lopez in 2004 to prepare a
sentencing report on an unrelated matter. During that interview, Lopez stated he suffered

                                             7.
from depression, diagnosed in 2003, that stemmed from issues he had with his son’s
mother. He did not indicate any other psychotic or mental health issues. Lopez was
particularly proud of the tattoos he had. Lopez admitted drinking alcohol once or twice a
month since age 13 and smoking two blunts of marijuana a day since age 11. Lopez liked
to use LSD, acid, and Ecstasy in combination, but he denied any cocaine use. Lopez
admitted taking methamphetamine once or twice, but did not like it because it made him
“flip out.”
                                      DISCUSSION

   I. DID THE TRIAL COURT PREJUDICIALLY ERR IN ALLOWING GANG
      EVIDENCE?
       Lopez contends that the trial court abused its discretion in admitting prejudicial
gang evidence. He contends the evidence should have been excluded, or at least strictly
limited, because it was of low probative value, unnecessarily cumulative and highly
prejudicial. Specifically, Lopez objects to the detailed photographs and testimony about
his various gang tattoos, as well as the general testimony about Hispanic gangs. Lopez
further asserts that admission of the evidence resulted in a fundamentally unfair trial. We
find no prejudicial error.
Background
       Before trial, the prosecutor asked to present 26 photos of Lopez’s gang tattoos.
The prosecutor wished to introduce the photos in the guilt phase, but was willing to wait
and introduce the photos during the sanity phase to show that, because of his gang
affiliation, Lopez’s “moral standards are different than those generally accepted in our
own community.” The prosecutor also noted the psychological experts considered the
photos in their evaluations and that Lopez’s Bulldog affiliation provided an explanation
for why he was barking at people the night before the shooting, negating the idea that he
had “mental issues.”




                                             8.
       Defense counsel objected to the photos, arguing they were not necessary because
he intended to admit that Lopez was a Bulldog and that Bulldog members sometimes
bark, and because the jury could plainly see the tattoos on Lopez’s hands, face and neck.
Defense counsel thought delaying admission of the photos until the sanity phase “would
almost be worse … because it carries perhaps more impact.” Defense counsel asserted
the photos would add nothing of relevance and that displaying them would serve only to
prejudice the jury.
       The trial court overruled defense counsel’s objection and issued a tentative ruling,
finding that the photos appeared probative on issues for the sanity phase.
       During the guilt phase of trial, defense counsel elicited from both Officer Richard
Badilla, who arrested Lopez, and Detective Frazier that Lopez had admitted he was a
Bulldog. The prosecutor played the recorded interview in which Lopez told police he
began trying to join the Bulldogs at age 12. During that interview, Lopez also said his
“twisted thoughts” “were fuckin’ tellin’ [him] to go kill scraps.” Detective Frazier
testified that “scraps” is a derogatory term used by Bulldog gang members to describe
rival southern gang members.
       The prosecution then asked Detective Frazier if Lopez had any tattoos and whether
photographs were taken of the tattoos. Detective Frazier testified that Exhibits 56
through 81 were accurate photographs of Lopez’s tattoos. The prosecutor asked that the
photos be moved into evidence and published. Defense counsel stated, “That is
agreeable, at this time.”7



7      The record is not clear at this point when and if the trial court changed its tentative
ruling and allowed the photos into evidence in the guilt phase. Later, during the
discussion on jury instructions, the trial court noted that the tattoo photos had been
offered in the guilt phase, defense counsel had not objected, and that the trial court
assumed the issue had been “discussed … and understood.” Noting no reasoning had
been placed on the record, the trial court stated it “allowed that information in … because


                                              9.
       Detective Frazier then commented on the admitted photos as follows: The tattoo
of a dog paw on Lopez’s upper right cheek, in Exhibit 57, was a common identifier of
Bulldog gang members. Exhibit 59 showed Lopez’s exposed chest and arms. Exhibit 60,
showed a dog paw on Lopez’s stomach, along with “BDS,” meaning Bulldogs. Exhibit
61, showed Lopez’s chest, neck, and arms with tattoos showing Bulldog affiliation,
including the word “Fresno” on his chest and a dog collar around Lopez’s neck.
       Defense counsel objected, pursuant to Evidence Code section 352, to any
additional tattoo photographs as being an undue consumption of time. The prosecutor
agreed to withdraw 11 of the remaining tattoo photographs.8
       When court resumed the following day, the prosecutor questioned Detective
Frazier on the additional tattoo photos that had not been withdrawn. Detective Frazier
testified that Exhibit 65 was another picture of the dog paw on Lopez’s face; Exhibits 67
and 68 showed various tattoos of Bulldogs on Lopez’s upper arm; Exhibit 69 was a right
forearm tattoo showing the word “Pleasant,” which stood for the Pleasant Street faction
of the Northside Bulldogs; Exhibit 71 was a left arm tattoo of the letters “NFS,” meaning
Northside Fresno; Exhibit 73 showed a demon head on Lopez’s upper left arm; Exhibit
74 depicted the eyes and teeth of a Bulldog and the letters “MNTL” on Lopez’s left hand
and wrist; and Exhibits 75 and 76, which showed additional tattoos on Lopez’s left arm.
       According to Detective Frazier, putting a gang tattoo on one’s face, where it is
seen by all, is a sign of commitment to a gang. Detective Frazier testified that the “more
hard core” a gang member, the more tattoos he is likely to have. Detective Frazier
described Lopez as “like a walking billboard for the Bulldogs.”




the Court felt it did deal with the issue of motive based upon the Court’s review of the
recorded statement of Mr. Lopez.”
8      The photos not shown were Exhibits 62-64, 66, 70, 72, 77-81.



                                            10.
       Detective Frazier testified generally that there are Northern and Southern Hispanic
gangs in California, and that the Bulldogs used to be Northerners, but have separated off
into their own group. He testified that Bulldogs and Nortenos, who wear red, continue to
be rivals of Southerners, who wear blue. Bulldogs “bark” to let other people know who
they represent. On cross-examination, Detective Frazier admitted that there was no
evidence the victim Hernandez was a gang member.
       The trial court subsequently instructed the jury with CALCRIM No. 1403 as
follows:

       “ … [Y]ou may consider evidence of gang membership only for the limited
       purpose of deciding whether: The defendant had a motive to commit the
       crime charged. [¶] You may not consider this evidence for any other
       purpose.… [Y]ou may not conclude from this evidence that the defendant
       is a person of bad character or that he has a disposition to commit crime.”
       During closing, the prosecutor argued Lopez made a premeditated and deliberate
decision to kill Hernandez because he was wearing a blue work uniform.
       During the sanity phase of the trial, the prosecutor continued to emphasize
Lopez’s Bulldog membership. After paramedic Arturo Carreon testified that Lopez was
not wearing a shirt on December 4, when he was transported to the hospital, the
prosecutor showed Carreon a photo of Lopez’s chest and arms (EXH. 51) and asked
whether the tattoos looked familiar. The prosecutor did the same when paramedic Byron
Diel testified that Lopez was bare-chested on December 6, when he was again transported
to the hospital. Diel testified that he had heard Bulldog members bark in the past and he
would be scared if a heavily-tattooed man was walking around barking. And former
probation officer Doyden said she remembered Lopez because he was proud of his
Bulldog collar and other tattoos.




                                           11.
       On cross-examination, Dr. Seymour testified that he had seen Lopez’s tattoos
before rendering his evaluation, but he did not know “specifically” what the extensive
tattooing signified for a criminal street gang member. Dr. Seymour did not think the fact
that Hernandez was wearing blue had any significance, because, had Lopez been sane at
the time of the shooting, he would have recognized Hernandez as a truck driver wearing a
uniform, not a Sureno.
       In closing during the sanity phase, the prosecutor argued that Lopez’s motive for
the shooting was to kill a “scrap.”
Applicable Law and Analysis
       “‘Relevant evidence’ means evidence, including evidence relevant to the
credibility of a witness or hearsay declarant, having any tendency in reason to prove or
disprove any disputed fact that is of consequence to the determination of the action.”
(Evid. Code, § 210.) “Gang evidence should not be admitted at trial where its sole
relevance is to show a defendant’s criminal disposition or bad character as a means of
creating an inference the defendant committed the charged offense.” (People v. Sanchez
(1997) 58 Cal.App.4th 1435, 1449.) “In cases not involving the gang enhancement, we
have held that evidence of gang membership is potentially prejudicial and should not be
admitted if its probative value is minimal. [Citation.] But evidence of gang membership
is often relevant to, and admissible regarding, the charged offense. Evidence of the
defendant’s gang affiliation - including evidence of the gang’s territory, membership,
signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like - can
help prove identity, motive, modus operandi, specific intent, means of applying force or
fear, or other issues pertinent to guilt of the charged crime.” (People v. Hernandez
(2004) 33 Cal.4th 1040, 1049-1050.) Specifically, “[g]ang evidence is relevant and
admissible when the very reason for the underlying crime, that is the motive, is gang
related. [Citation.]” (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167.) In a
sanity proceeding, a history of conduct, past as well as present, is an important

                                             12.
consideration in an appraisal of mental status. (People v. Houser (1965) 238 Cal.App.2d
930, 933.)
       Evidence Code section 352 provides: “The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create substantial danger
of undue prejudice, of confusing the issues, or of misleading the jury.” Evidence related
to gang membership is not insulated from the general rule that all relevant evidence is
admissible if it is relevant to a material issue in the case other than character, is not more
prejudicial than probative, and is not cumulative. (People v. Avitia (2005) 127
Cal.App.4th 185, 192.)
       “‘[A]n appellate court applies the abuse of discretion standard of review to any
ruling by a trial court on the admissibility of evidence, including one that turns on the
relative probativeness and prejudice of the evidence in question [citations]. Evidence is
substantially more prejudicial than probative (see Evid. Code, § 352) if, broadly stated, it
poses an intolerable “risk of the fairness of the proceedings or the reliability of the
outcome.” [Citation.]’ [Citation.]” (People v. Jablonski (2006) 37 Cal.4th 774, 805.)
“‘[B]ecause a motive is ordinarily the incentive for criminal behavior, its probative value
generally exceeds its prejudicial effect, and wide latitude is permitted in admitting
evidence of its existence.’ [Citation.]” (People v. Gonzalez (2005) 126 Cal.App.4th
1539, 1550.) “Nonetheless, even if the evidence is found to be relevant, the trial court
must carefully scrutinize gang-related evidence before admitting it because of its
potentially inflammatory impact on the jury. [Citations.]” (People v. Albarran (2007)
149 Cal.App.4th 214, 224 (Albarran).)
       “The admission of gang evidence over an Evidence Code section 352 objection
will not be disturbed on appeal unless the trial court’s decision exceeds the bounds of
reason. [Citation.]” (People v. Olguin (1994) 31 Cal.App.4th 1355, 1369.) In assessing
prejudice, we must remember that “[t]he prejudice which exclusion of evidence under

                                              13.
Evidence Code section 352 is designed to avoid is not the prejudice or damage to a
defense that naturally flows from relevant, highly probative evidence. ‘[A]ll evidence
which tends to prove guilt is prejudicial or damaging to the defendant’s case. The
stronger the evidence, the more it is “prejudicial.” The “prejudice” referred to in
Evidence Code section 352 applies to evidence which uniquely tends to evoke an
emotional bias against the defendant as an individual and which has very little effect on
the issues … [it] is not synonymous with “damaging.”’ [Citation.]” (People v. Karis
(1988) 46 Cal.3d 612, 638.)

       Furthermore:

               “To prove a deprivation of federal due process rights, [a defendant]
       must satisfy a high constitutional standard to show that the erroneous
       admission of evidence resulted in an unfair trial. ‘Only if there are no
       permissible inferences the jury may draw from the evidence can its
       admission violate due process. Even then, the evidence must “be of such
       quality as necessarily prevents a fair trial.” [Citations.] Only under such
       circumstances can it be inferred that the jury must have used the evidence
       for an improper purpose.’ [Citation.] ‘The dispositive issue is … whether
       the trial court committed an error which rendered the trial “so ‘arbitrary and
       fundamentally unfair’ that it violated federal due process.” [Citation.]’
       [Citation.]” (Albarran, supra, 149 Cal.App.4th at pp. 229-230, fn.
       omitted.)
       Lopez contends that the gang evidence, particularly the extensive photos of his
gang tattoos and the police officer’s testimony about the Bulldogs was irrelevant and
cumulative because there was no evidence Lopez killed Hernandez for any reason related
to Lopez’s Bulldog affiliation. Lopez argues the trial court’s admission of the gang
evidence violated rules of evidence and prejudiced the verdict under state law, and also
that the erroneous admission of this evidence was so serious as to violate his federal
constitutional rights to due process, rendering his trial fundamentally unfair.




                                             14.
       In support of his argument, Lopez relies on Albarran, supra, 149 Cal.App.4th 214,
in which the appellate court found the admission of gang evidence violated due process,
rendering the trial fundamentally unfair. (Id. at p. 232.) In Albarran, the defendant was
charged with multiple offenses based on his participation in a shooting at the victim’s
home. He was not charged with the gang substantive offense, but gang enhancements
were alleged. (Id. at p. 217.) The trial court permitted the prosecution to introduce gang
evidence to prove the defendant’s motive and intent. The jury convicted the defendant of
the substantive offenses and found the gang enhancements true. Thereafter, the court
granted a motion to dismiss the gang allegation for insufficient evidence. (Ibid.)
       Albarran held that, while the trial court may have initially found the defendant’s
gang activities were relevant and probative to his motive and intent, the court abused its
discretion when it permitted the prosecution to introduce additional gang evidence that
was completely irrelevant to the defendant’s motive or the substantive criminal charges.
(Albarran, supra, 149 Cal.App.4th at pp. 226-228, 230.) The irrelevant evidence
included other gang members’ threats to kill police officers, lengthy descriptions of
crimes committed by other gang members, and references to the Mexican Mafia prison
gang. Albarran characterized the irrelevant gang evidence as “extremely and uniquely
inflammatory, such that the prejudice arising from the jury’s exposure to it could only
have served to cloud their resolution of the issues.” (Id. at pp. 227, 230, fns. omitted.)
Albarran also classified this evidence as “overkill,” and said it was “troubled” by the trial
court’s failure to scrutinize the potential prejudice of the gang offense on the substantive
charges. (Id. at p. 228, fn. omitted.) Albarran found the irrelevant and prejudicial gang
evidence so inflammatory it “had no legitimate purpose in this trial” and held its
admission violated the defendant’s due process rights. (Id. at pp. 230-231.)
       Here, the gang evidence was properly admitted during the guilt phase on the issue
of motive, providing the missing link between what could appear to be an otherwise
random shooting and Lopez’s statements to officers. The prosecution’s theory was that

                                             15.
Lopez killed Hernandez because he was wearing blue, the color of Lopez’s rival gang,
and the killing was the result of Lopez’s premeditation and deliberation to kill rival gang
members. Lopez admitted to law enforcement that he killed Hernandez because the
voices in his head were telling him to “go kill scraps” and “handle [his] business.” As
noted by the trial court, the evidence of Lopez’s gang membership was necessary to give
the jury a proper understanding of Lopez’s statements, since a layperson would not
understand what it meant to kill “scraps” and handle his business. The prosecution did
not argue that the shooting was in any way sanctioned by or for the benefit of the gang.
       The extent of Lopez’s gang tattoos tended to show his level of commitment to the
gang, which in turn strengthened the prosecution’s theory of Lopez’s motive to kill
Hernandez. When someone adorns one’s body with tattoos, especially to the extent of
the tattoos in this case, it demonstrates what can be argued to be a certain degree of
allegiance, loyalty, and commitment to a particular group or organization. This
commitment relates directly to issues of motive in this case.
       The gang evidence was also properly admitted during the sanity phase to show
Lopez was sane at the time of the killing and that he acted pursuant to his Bulldog
commitment.
       Even if we were to assume error for the admission of excessive photographs, for
the sake of argument, Lopez has not demonstrated prejudice under either People v.
Watson (1956) 46 Cal.2d 818, 836 (Watson), or under Chapman v. California (1967) 386
U.S. 18, 24 (Chapman). (See People v. Boyette (2002) 29 Cal.4th 381, 428 [Watson
standard applied to prejudicial error analysis for errors of state law, while beyond-a-
reasonable-doubt standard of Chapman applies to similar analysis for federal
constitutional errors such as deprivation of due process].)
       The evidence against Lopez was overwhelming. He was caught on video getting
out of the truck, looking around, shooting Hernandez and then running back to the truck.
He admitted he was a gang member and that he wanted to kill “scraps.” There was also

                                            16.
solid evidence of Lopez’s sanity. Given the nature and amount of gang evidence at issue,
relative to the other evidence presented at trial, we are convinced under either the state or
federal standards of prejudicial error that reversal is unwarranted.

   II. DID THE TRIAL COURT PREJUDICIALLY ERR IN ALLOWING
       PHOTOGRAPHS OF THE VICTIM?
         Lopez contends that the trial court abused its discretion in admitting a number of
prejudicial photos of the victim Hernandez during the guilt phase. Lopez also asserts that
admission of the evidence resulted in a fundamentally unfair trial. We find no prejudicial
error.
Background
         During in limine motions, the prosecutor sought to admit 20 photos of
Hernandez’s corpse at the scene of the shooting (EXHS. 25-44). Defense counsel
objected that the photos were more prejudicial than probative. After discussion, the
prosecutor withdrew 11 of the photos (EXHS. 26, 28-29, 31-33, 35-37, 39-40). In
addition, defense counsel withdrew his objection to five photos that showed Hernandez’s
gunshot wounds cleansed of blood (EXHS. 41-44), conceding that these photos could be
relevant to Lopez’s mental state, showing that he was able to fire the gun accurately.
Defense counsel also stated that he did not object to photos of the corpse covered in a
tarp, to show the location where Hernandez was killed. This left five photos in dispute -
exhibits 25, 27, 30, 34, and 38. The trial court concluded all five disputed photos were
admissible, finding they were not unduly prejudicial because they were “not much
different than what basically is shown on television.” The trial court further determined
the photos relevant to prove that Hernandez was killed, the circumstances of his death,
and whether the murder was deliberate or premeditated.
         Discussion was then had concerning eight autopsy photos the prosecution wished
to admit (EXHS. 94-101). The prosecutor stated the photos would assist the medical
examiner in testifying about Hernandez’s wounds. The prosecutor also thought it


                                              17.
important that the jury understood Lopez shot Hernandez three times. Defense counsel
objected that the photos were irrelevant because the cause of death was undisputed and
that they were more prejudicial than probative. The trial court allowed the autopsy
photos to be admitted, opining that they were relevant to the coroner’s testimony and
were not unduly prejudicial because they showed little blood.
       At trial, the five disputed photos showing Hernandez’s body taken at the crime
scene were admitted and Detective Frazier testified that they showed Hernandez’s body
lying face down by the delivery truck. The disputed autopsy photos were admitted
during the testimony of medical examiner, Dr. Gopal, who testified that the photos
showed fatal wounds to Hernandez’s back and chest caused by three bullets.
Applicable Law and Analysis
       “The admission of photographs of the victim lies within the broad discretion of the
trial court when a claim is made that they are unduly gruesome or inflammatory.
[Citations.] The court’s exercise of that discretion will not be disturbed on appeal unless
the probative value of the photographs clearly is outweighed by their prejudicial effect.
[Citations.]” (People v. Crittenden (1994) 9 Cal.4th 83, 133-134.) But it is also true, as
stated previously, that the trial court has no discretion to admit irrelevant evidence.
(Evid. Code, § 350; People v. Turner (1984) 37 Cal.3d 302, 321, disapproved on another
point in People v. Anderson (1987) 43 Cal.3d 1104, 1149-1150.)
       Lopez contends that the photos were irrelevant, since there was no dispute that he
shot Hernandez three times in the back and that the bullet wounds were the cause of
death. It is true that, when “‘a defendant offers to admit the existence of an element of a
charged offense, the prosecutor must accept that offer and refrain from introducing
evidence … to prove that element to the jury.’ [Citation.]” (People v. Poggi (1988) 45
Cal.3d 306, 323 (Poggi).) In Poggi, one photo at issue depicted the victim alive with her
husband and son on Christmas and the other was an autopsy photo depicting the incisions
made during a tracheotomy in an attempt to save the victim’s life but not depicting any of

                                             18.
the wounds the victim sustained during her attack. (Id. at pp. 322-323.) The manner of
killing was not relevant in Poggi, and the photos were merely introduced for
identification purposes. (Ibid.)
       But here, while Lopez admitted killing Hernandez, the question of intent and
deliberation was at issue, which the prosecutor hoped to show by the fact that Lopez got
out of the truck with a loaded gun, approached Hernandez near the back of the delivery
truck and shot him three times. Also at issue was Lopez’s sanity, which the prosecutor
hoped to show in part by his ability to successfully and accurately fire the gun in the
manner intended.
       We cannot say, after looking at the exhibits in question, that the evidence was
unduly gruesome. While there was blood shown in some of the photos of Hernandez’s
body lying on the ground, it was not so pervasive as to unnecessarily evoke undue
emotional bias. And the autopsy photos admitted showed very little, if any, bodily fluids
or blood. The more graphic autopsy photos showing more blood, the peeling back of
Hernandez’s skull, the removal of Hernandez’s brain, and the upper cavity of his skull
were not admitted.
       Under the facts of this case, even if it was error to admit the photos, the error was
not prejudicial. As we have observed, the evidence against Lopez was overwhelming.
We conclude no prejudicial error occurred under either Watson or even under the more
stringent Chapman standard. (Watson, supra, 46 Cal.2d at p. 836; Chapman, supra, 386
U.S. at p. 24.)

   III. DID THE PROSECUTOR COMMIT MISCONDUCT DURING THE SANITY
        PHASE OF TRIAL?
       Lopez contends the judgment in the sanity phase of his trial must be reversed
because the prosecutor engaged in misconduct during cross-examination and closing
argument. We find no merit to his claim.



                                             19.
Background
       Lopez first contends the prosecutor committed misconduct during cross-
examination and closing by urging the jury to conclude that Lopez’s not guilty by reason
of insanity (NGI) plea was evidence of malingering.
       On cross-examination, the prosecutor asked defense expert Dr. Geiger how she
reconciled her testimony that Lopez did not want to appear to be mentally ill with the fact
that Lopez had entered an NGI plea. Dr. Geiger responded:

       “ … I think you can reconcile it because someone has an underlying
       dynamic of, in general, not wanting to appear as crazy or sick or mentally
       ill. It doesn’t necessarily mean that they’re foolish when it comes to being
       involved in a life-changing legal situation. And I don’t actually know the
       mechanics of what happened or what transpired between Mr. Lopez and his
       counsel, as far as how he got to that plea.… [¶] … [¶] The fact that he said
       it personally doesn’t negate his dynamic, his underlying dynamic that he
       doesn’t want to be seen as mentally ill on a day-to-day basis.”
When asked if this was “another situation or another circumstance where [Lopez] is using
his mental illness to his advantage,” Geiger stated, “Possibly,” but then noted various test
results that indicated Lopez was not trying to appear mentally ill.
       In closing, the prosecutor argued that Lopez’s tendency to tell the testifying
witnesses that he heard voices was inconsistent with the idea that he did not want to
appear mentally ill. The prosecutor also argued that Lopez consistently used mental
illness to manipulate people, just like the defense in this case.
       Lopez also contends the prosecutor committed misconduct during closing
argument by “acting as his own psychiatric expert, diagnosing Lopez as a ‘malingerer’
with no support in the evidence.”
       During the sanity phase, defense expert Dr. Seymour testified that he did not
suspect Lopez was malingering, given that he had a long documented history of
psychiatric problems, he complained to family and friends about hearing voices when he




                                             20.
had no motive to lie, and he was reluctant to tell the police that he was hearing voices for
fear that the officers would think he was crazy.
       On cross-examination by the prosecutor, Dr. Seymour acknowledged that he had
not administered a test for malingering even though delusions and auditory hallucinations
are symptoms most commonly and easily faked. The prosecutor recited a list of four
diagnostic criteria for malingering from the DSM-IV9: being referred by an attorney;
marked discrepancy between a person’s claimed stress or disability and the objective
findings; lack of cooperation during the diagnostic evaluation and non-compliance with
the prescribed treatment regimen; and the presence of an antisocial personality disorder.
Dr. Seymour agreed that the diagnostic criteria mentioned by the prosecutor were
accurate, that Lopez had been referred to him by an attorney, that Lopez had traits of
antisocial personality disorder, and that Lopez had shown noncompliance with prescribed
treatment at the jail. But Dr. Seymour did not agree that Lopez fit the definition of a
malingerer.
       Defense expert Dr. Geiger testified that she considered the possibility that Lopez
was malingering to avoid criminal consequences, but found her testing of him was
consistent with actual mental illness. She also did not administer any specific
malingering test. Instead, she found that Lopez did his best to downplay his mental
problems and had a significant ability to mask his illness.
       On cross-examination, the prosecutor went through the same DSM-IV criteria for
malingering with Dr. Geiger, who also admitted Lopez had been referred to her by an
attorney, had given some invalid responses to questions, had been uncooperative on one




9       DSM-IV refers to the American Psychiatric Association’s Diagnostic and
Statistical Manual of Mental Disorders, fourth addition. (People v. Hajek and Vo (2014)
58 Cal.4th 1144, 1241.)



                                            21.
occasion, and had exhibited noncompliance with prescribed treatment at the jail. But she
too did not think specific testing for malingering was warranted.
       The parties subsequently stipulated that, “on July 20th 2010, the defendant agreed
that his plea in this case would be not guilty by reason of insanity.” During closing,
defense counsel explained to the jury that, although a defendant must personally enter an
insanity plea, his lawyer advises the defendant on what to do.
       The prosecutor, in closing, criticized Dr. Geiger and Dr. Seymour for failing to
test Lopez for malingering, and argued, “You have plenty of evidence that the defendant
has a motive to get himself out of trouble to the extent he can,” and that Lopez had a
history of claims of mental illness “as a manipulation” “[j]ust like he did in this case.”
The prosecutor again mentioned the DSM-IV criteria, argued that three of the criteria had
been met and that “we could probably make a case for the fourth one,” and that Lopez
“actually fits the criteria for malingering. Absolutely.”
Applicable Law

          1. Not Guilty by Reason of Insanity Plea

               “Under California law, if a defendant pleads not guilty and joins it
       with a plea of not guilty by reason of insanity, the issues of guilt and sanity
       are tried separately. Penal Code section 1026, subdivision (a), provides
       that in such circumstances, ‘the defendant shall first be tried as if only such
       other plea or pleas had been entered, and in that trial the defendant shall be
       conclusively presumed to have been sane at the time the offense is alleged
       to have been committed. If the jury shall find the defendant guilty, or if the
       defendant pleads only not guilty by reason of insanity, then the question
       whether the defendant was sane or insane at the time the offense was
       committed shall be promptly tried, either before the same jury or before a
       new jury in the discretion of the court. In that trial, the jury shall return a
       verdict either that the defendant was sane at the time the offense was
       committed or was insane at the time the offense was committed.’” (People
       v. Hernandez (2000) 22 Cal.4th 512, 520-521.)




                                             22.
“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 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’ [citation]. As in the
determination of guilt, the verdict of the jury must be unanimous. [Citation.]” (Ibid.)
           2. Prosecutorial Misconduct
       “‘A prosecutor who uses deceptive or reprehensible methods to persuade the jury
commits misconduct, and such actions require reversal under the federal Constitution
when they infect the trial with such “‘unfairness as to make the resulting conviction a
denial of due process.’” [Citations.] Under state law, a prosecutor who uses deceptive or
reprehensible methods commits misconduct even when those actions do not result in a
fundamentally unfair trial. [Citation.]’ [Citations.]” (People v. Salcido (2008) 44
Cal.4th 93, 152, italics omitted.)
       “‘“[T]he prosecution has broad discretion to state its views as to what the evidence
shows and what inferences may be drawn therefrom.”’” (People v. Welch (1999) 20
Cal.4th 701, 752.) But a prosecutor “may not examine a witness solely to imply or
insinuate the truth of the facts about which questions are posed.” (People v. Visciotti
(1992) 2 Cal.4th 1, 52.) And “[t]o prevail on a claim of prosecutorial misconduct based
on remarks to the jury, the defendant must show a reasonable likelihood the jury
understood or applied the complained-of comments in an improper or erroneous manner.
[Citations.] In conducting this inquiry, we ‘do not lightly infer’ that the jury drew the
most damaging rather than the least damaging meaning from the prosecutor’s statements.
[Citation.]” (People v. Frye (1998) 18 Cal.4th 894, 970, overruled on other grounds in
People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
       “In general, ‘“‘a defendant may not complain on appeal of prosecutorial
misconduct unless in a timely fashion - and on the same ground - the defendant
[requested] an assignment of misconduct and [also] requested that the jury be

                                              23.
admonished to disregard the impropriety.’”’ [Citation.]” (People v. Young (2005) 34
Cal.4th 1149, 1184-1185.)
       The People contend Lopez forfeited his prosecutorial misconduct argument by
failing to raise objection in the trial court, when objections and admonitions would have
cured the alleged harms. Lopez concedes he did not object. For the sake of judicial
efficiency, we will address the merits of Lopez’s prosecutorial misconduct contentions.
(People v. Ochoa (1998) 19 Cal.4th 353, 428.) By doing so, we avoid an unnecessary
analysis of whether he received ineffective assistance of counsel, which he argues in the
alternative. (People v. Ibarra (2007) 156 Cal.App.4th 1174, 1179.)
Analysis
       Lopez objects to the prosecutor’s line of questioning during cross-examination
about Lopez’s NGI plea, claiming it is misconduct for a prosecutor to comment on the
exercise of a defendant’s legal right. While this is true (e.g., a prosecutor may not
comment on a defendant’s right to remain silent and not testify (Griffin v. California
(1965) 380 U.S. 609, 611-615)), “[a]n insanity plea is not the assertion of a ‘right.’”
(People v. Hernandez, supra, 22 Cal.4th at p. 523.) Instead, insanity is a “special plea to
the effect that … the defendant … is not amenable to punishment under the law,” and the
defendant has the burden of proving the defense by a preponderance of the evidence. (Id.
at pp. 521, 522.)
       Lopez analogizes the prosecutor’s argument to the blatant misconduct described in
a sanity trial in People v. Sorenson (1964) 231 Cal.App.2d 88 (Sorenson). The analogy
fails. In Sorenson, the defendant entered a plea of not guilty by reason of insanity to
charges that he had written three bad checks. (Id. at p. 90.) He had a history of writing
bad checks. (Ibid.) In closing, the prosecutor argued: “‘[W]e get caught and we tried this
other road before, and it doesn’t work so now let’s have a new plea, let’s try something
different, nothing worked before, let’s try a plea of insanity this time. “If I am going to be
confined for anything at all, let’s make it some time in the hospital instead of jail.” If the

                                             24.
doctor feels he is not in one of these states of being manic depressive this particular
minute, this turns him loose.’” (Id. at p. 91.)
       The Sorenson court found the argument “obvious misconduct” for several reasons:

       “Defendant’s immediate or ultimate destination - whether state hospital,
       state prison or to be ‘turned loose’ - was a judgment which the law reposed
       in other hands than the jury’s. [Fn omitted.] The Prosecutor’s statement
       was a thinly disguised appeal to the jurors to abdicate their lawful role and
       to decide the issue of sanity in terms of their own opinion that
       imprisonment, not hospitalization, was defendant’s proper fate. In effect,
       the district attorney was urging the jury to usurp functions reposed by
       statute in other hands. The statement was an appeal to prejudice, an
       attempt to arouse aversion toward a verdict which might ‘turn him loose’ to
       victimize innocent people with more bad checks. Finally, the argument
       misstated the law, telling the jury that after defendant’s commitment to a
       state hospital, ‘the doctor’ could release him. Penal Code sections 1026
       and 1026a, to the contrary, prevent the release of a defendant without a
       judicial hearing and a finding of restoration to sanity.” (Sorenson, supra,
       231 Cal.App.2d at pp. 91-92.)
The court found the misconduct to be prejudicial, noting the only medical evidence was
presented by the defendant and “[a]though not compelling, that evidence strongly tended
to support a verdict of legal insanity.” The court also noted there had been no admonition
to the jury, making it likely the “impropriety” of the prosecutor materially influenced the
verdict. (Id. at pp. 93-94.)
       Here, it was not misconduct for the prosecutor to impeach Dr. Geiger’s claim that
Lopez did not want to appear mentally ill. A prosecutor has wide latitude to test the
credibility of an expert witness on cross-examination so that the jury may determine the
weight to be given the testimony. (People v. Ryan (1956) 140 Cal.App.2d 412, 421.)
Lopez’s presentation of an insanity defense, and the evidence he presented, contradicted
Dr. Geiger’s opinion that Lopez tried not to appear mentally ill, a fact the prosecutor took
advantage of. It was not misconduct for the prosecutor to emphasize Lopez’s tendency
not to hide any mental illness and that he used it to manipulate those around him.



                                             25.
       Lopez also contends the prosecutor committed misconduct because he, in essence,
told the jury in closing that, based on specialized knowledge and expertise on his part,
Lopez had been diagnosed as a malingerer. It is true that a prosecutor, serving as his
own unsworn witness, is beyond the reach of cross-examination in violation of a
defendant’s right to confront all witnesses against him. (People v. Bolton (1979) 23
Cal.3d 208, 214-215, fn. 4.)
       But here, the prosecutor never claimed that Lopez had been diagnosed as a
malingerer, nor did he present his argument under a false cover of scientific authority that
he had proved Lopez was malingering based on the malingering criteria alone. Instead,
the prosecutor argued that defense experts’ opinions were flawed because they had failed
to test Lopez for malingering, even though he fit several of the criteria that should have
lead an evaluator to strongly suspect such.
       In any event, even if we were to find the complained of questioning on cross-
examination and argument during closing error, it was not prejudicial on either state or
federal grounds. While defense counsel presented expert testimony supporting the claim
of insanity, the prosecutor presented expert testimony refuting that claim. It is the
exclusive function of the trier of fact to assess the credibility of witnesses and draw
reasonable inferences from the evidence. (People v. Alcala (1984) 36 Cal.3d 604, 623,
disapproved on other grounds by People v. Falsetta (1999) 21 Cal.4th 903, 911.) The
trial court properly instructed the jury on the proper manner to evaluate expert witness
testimony. (CALCRIM No. 332.) In addition, the jury was instructed that “[n]othing that
the attorneys say is evidence,” and that evidence consists of the testimony of witnesses.
(CALCRIM No. 222.) We presume the jury followed this instruction, giving the
prosecutor’s remarks little significance. (People v. Boyette, supra, 29 Cal.4th at p. 453;
People v. Morales (2001) 25 Cal.4th 34, 47.)




                                              26.
   IV. DID CALCRIM NO. 3450 VIOLATE SECTION 25 OR LOPEZ’S
       CONSTITUTIONAL RIGHTS TO DUE PROCESS AND TO PRESENT A
       DEFENSE?
       Lopez contends that CALCRIM No. 3450 as given was inconsistent with the legal
test for insanity, violating section 25 and his constitutional rights to due process and to
present a defense. We disagree.
       We note first that Lopez never objected to CALRIM No. 3450 on several of the
grounds he now raises. Generally, a party may not complain on appeal that an instruction
correct in law and responsive to the evidence was too general or incomplete unless the
party requested appropriate clarifying or amplifying language. (People v. Lang (1989) 49
Cal.3d 991, 1024; People v. Hart (1999) 20 Cal.4th 546, 622.) Lopez contends, while no
objection was made, none was necessary because the instruction issue affects his
substantial rights. (§ 1259; see, e.g., People v. Harris (1981) 28 Cal.3d 935, 956.) We
will address the issue without deciding whether an objection should have been made.
Section 25 and CALCRIM No. 3450
       As noted earlier, “Insanity, under California law, means that at the time the
offense was committed, the defendant was incapable of knowing or understanding the
nature of his act or of distinguishing right from wrong.” (People v. Hernandez, supra, 22
Cal.4th at pp. 520-521.) The statutory definition of insanity is provided in section 25,
subdivision (b), which provides, in relevant part:

       “In any criminal proceeding, … in which a plea of not guilty by reason of
       insanity is entered, this defense shall be found by the trier of fact only when
       the accused person proves by a preponderance of the evidence that he or
       she was incapable of knowing or understanding the nature and quality of
       his or her act and of distinguishing right from wrong at the time of the
       commission of the offense.”
       CALCRIM 3450, the pattern instruction defining the burden of proof and the legal
standards for assessing sanity, as given and pertinent to the discussion here, instructed
that Lopez was insane if:


                                             27.
       “One, when he committed the crime, he had a mental disease or defect; [¶]
       And two, because of that disease or defect, he was incapable of knowing or
       understanding the nature and quality of his act or was incapable of
       knowing or understanding that his act was morally or legally wrong. [¶] …
       [¶] You may find that at times the defendant was legally sane and at other
       times he was legally insane. You must determine whether he was legally
       insane when he committed the crime.” (Italics added.)
Applicable Law and Analysis
       Appellate courts determine de novo whether a jury instruction correctly states the
law. (People v. Posey (2004) 32 Cal.4th 193, 218.) “Review of the adequacy of
instructions is based on whether the trial court ‘fully and fairly instructed on the
applicable law.’ [Citation.]” (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)
“‘“In determining whether error has been committed in giving or not giving jury
instructions, we must consider the instructions as a whole … [and] assume that the jurors
are intelligent persons and capable of understanding and correlating all jury instructions
which are given.” [Citation.]’ [Citation.]” (Ibid.) “‘Instructions should be interpreted, if
possible, so as to support the judgment rather than defeat it if they are reasonably
susceptible to such interpretation.’ [Citation.]” (Ibid.)
       Lopez contends that CALCRIM No. 3450 as given was faulty because it did not
set forth the proper test for insanity, or that “[a]t the very least, it was confusing and
misleading.” Specifically, Lopez claims that the italicized portion of the instruction was
incorrect because it lacked “reference to the time of the offense,” implying that if a
defendant “could possibly have known his act was morally wrong under any
circumstances, then he is not legally insane.” We disagree.
       “[T]he thrust of CALCRIM No. 3450 is to inform the jury that the burden is on the
defendant to prove he was insane at the time of the offense[]. This is consistent with
section 25, subdivision (b).” (People v. Thomas (2007) 156 Cal.App.4th 304, 310.)
While the challenged paragraph of the pattern instruction, when viewed in isolation, may
be potentially misleading, when read in context, it certainly is not. The first prong in


                                              28.
assessing sanity stated Lopez was legally insane if, “when he committed the crime, he
had a mental disease or defect,” thus expressly stating that the only relevant time period
for the mental disease or defect was at the time of the offense. The second prong then
references the first prong by starting, “because of that disease or defect …,” necessarily
referencing the relevant time period. Thus, while the phrase “when he committed the
crime” did not appear in the second prong of the test itself, it clearly related to that
specific time period. Moreover, the complete instruction, as given, plainly states no less
than seven times that to find Lopez insane it had to find him so at the time he committed
the offense.
       Viewing the instruction as a whole, there is no “reasonable likelihood” the jury
understood the instructions as Lopez asserts. (Estelle v. McGuire (1991) 502 U.S. 62,
72.) We reject his contention to the contrary. Because we do so, we need not address his
further argument that the instruction, as it pertained to the definition of insanity, violated
his due process rights or his right to present a defense.

   V. DID CALCRIM NO. 3450 VIOLATE SECTION 29.8 OR LOPEZ’S
      CONSTITUTIONAL RIGHTS TO DUE PROCESS AND TO PRESENT A
      DEFENSE?
       Lopez also contends that CALCRIM No. 3450, as given, did not accurately reflect
the law set forth in section 29.8, violating his constitutional rights to due process and to
present a defense. We disagree.
Section 29.8 and CALCRIM No. 3450
       Section 29.8 provides, in relevant part:

       “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 a personality or adjustment disorder, a seizure disorder, or
       an addiction to, or abuse of, intoxicating substances.…”




                                              29.
In other words, the defense of legal insanity can never be proven, as a matter of law,
when the only mental disease or defect is a personality disorder. (People v. Cabonce
(2009) 169 Cal.App.4th 1421, 1436.)
       The jury was instructed on this concept in part of CALCRIM No. 3450 as follows:

       “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. [¶] 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.”
Applicable Law and Analysis
       Lopez contends that the instruction as given was flawed for several reasons. First,
he contends that CALCRIM No. 3450 is defective because it does not tell the jurors that
they cannot find insanity “solely on the basis of personality disorder,” as provided in
section 29.8. Instead, Lopez argues that, in a case like his where he has multiple
diagnoses, the instruction prohibits the jury from considering whether he was insane due
to the effect of a personality disorder in combination with some other non-exempted
mental illness. We disagree.
       To recap, defense expert Dr. Geiger opined that Lopez had a schizoaffective
disorder with various sub-components, as well as a personality disorder, not otherwise
specified, with borderline narcissistic and antisocial features. Defense expert Dr.
Seymour diagnosed Lopez with a bipolar disorder with psychotic features and a
personality disorder not otherwise specified, with borderline and antisocial features. He
also found Lopez had a history of polysubstance dependence, but could not say if he was
under the influence at the time of the crime. Court-appointed expert Dr. Velosa




                                            30.
diagnosed Lopez with polysubstance drug dependence, which was now in remission. No
mention was made by Dr. Velosa of Lopez having a personality disorder.
       Lopez cites the predecessor CALJIC instruction which, he argues, did not contain
the error he claims exists in CALCRIM No. 3450. That instruction, CALJIC No. 4.00,
states, in pertinent part: “this defense of legal insanity does not apply when the sole or
only basis or causative factor for the mental disease or mental defense is [a personality or
adjustment disorder] [a seizure disorder] [, or] [an addition to, or an abuse of, intoxicating
substances].]” (Italics added.)
       We find Lopez’s contention contrary to the plain language of the instruction as
given. While the statement may be improved upon, the CALCRIM instruction did not
preclude the jury from considering a bipolar or schizoaffective disorder in tandem with a
personality disorder in deciding whether Lopez was insane at the time of the murder. Not
every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a
due process violation. The question is ‘“whether the ailing instruction … so infected the
entire trial that the resulting conviction violates due process.”’ [Citations.]” (Estelle v.
McGuire, supra, 502 U.S. at p. 72.) When read in context, as we must, the instruction
states that the jury could find Lopez legally insane if it found he had a mental disease or
defect; that because of the disease or defect he was incapable of knowing or
understanding the nature and quality of his act or was incapable of knowing or
understanding that his act was morally or legally wrong; and that, in making that
determination, a personality disorder did not qualify as a mental disease or defect.
(CALCRIM No. 3450.)
       Furthermore, we note that, in his testimony, Dr. Seymour specifically stated that
Lopez’s inability to distinguish right from wrong was caused by his “psychosis inherent
in the bipolar disorder” and not his personality disorder. And, when asked, Dr. Seymour
agreed that a person cannot be found insane due to a personality disorder.



                                             31.
       We reject Lopez’s claim that the instruction, as given, was inaccurate.
       Lopez also asserts the trial court erred in instructing the jury based on section 29.8
because it did not apply to the evidence and therefore undermined his ability to present a
defense. According to Lopez, his insanity defense was not based solely on evidence that
he had a personality disorder, but also on evidence he suffered from psychotic disorders.
       We find Lopez’s reliance on People v. Robinson (1999) 72 Cal.App.4th 421,
misplaced. There, the appellate court concluded the trial court should not have given a
special instruction based on section 25.5 (the predecessor to section 29.8) because neither
the prosecutor nor the defendant relied on the defendant’s “long-term substance abuse
and possible resulting mental damage or disorder as the sole cause of his insanity.”
(Robinson, supra, at pp. 423, 428.) But here the prosecution’s theory was that Lopez did
not suffer from any psychotic disorder, and if he did suffer from any mental illness, it was
only a personality disorder. The instruction was therefore applicable under the evidence
presented and argued by the prosecution and we reject Lopez’s argument to the contrary.
       Finally, Lopez argues the exclusion of personality disorders from the definition of
insanity for the purpose of the legal defense under section 29.8 is unconstitutional. The
crux of Lopez’s argument is that section 29.8 precludes an insanity defense based on a
personality disorder even if that disorder renders a person legally insane under the
provision of section 25, which states, in relevant part, that a person may be found not
guilty by reason of insanity “only when the accused person proves by a preponderance of
the evidence that he or she was incapable of knowing or understanding the nature and
quality of his or her act and of distinguishing right from wrong at the time of the
commission of the offense.” (§ 25, subd. (b).)
       Lopez’s argument is without merit. When read together, sections 25 and 29.8 are
not inconsistent. Rather, section 29.8 serves to specify the disorders that cannot, by the
legislature’s evaluation, cause a person to be “incapable of knowing or understanding the



                                             32.
nature and quality of his or her act and of distinguishing right from wrong at the time of
the commission of the offense.” (§ 25, subd. (b).)
       The limitation of that which qualifies as legal insanity under section 29.8 is
entirely within the state legislature’s discretion, and is not unconstitutional. (see, e.g.,
Clark v. Arizona (2006) 548 U.S. 735, 752, fn. 11 [“[T]he jurisdictions limit, in varying
degrees, which sorts of mental illness or defect can give rise to a successful insanity
defense. Compare, e.g., Ariz. Rev. Stat. Ann. § 13-502(A) (West 2001) (excluding from
definition of ‘mental disease or defect’ acute voluntary intoxication, withdrawal from
alcohol or drugs, character defects, psychosexual disorders, and impulse control
disorders) with, e.g., Ind. Code § 35-41-3-6(b) (West 2004) (excluding from definition of
‘mental disease or defect’ ‘abnormality manifested only by repeated unlawful or
antisocial conduct’).”])

 VI. DID THE TRIAL COURT PROPERLY DENY LOPEZ’S REQUEST TO
     MODIFY CALCRIM NO. 3450 ON THE CONSEQUENCES OF AN INSANITY
     DEFENSE, THEREBY VIOLATING HIS RIGHT TO DUE PROCESS?
       Lopez makes one final argument concerning CALCRIM No. 3450: the trial court
erroneously refused to give a modification suggested by defense counsel that would have
accurately informed the jury about the effects of an insanity verdict. Lopez claims that
the resulting instruction improperly permitted the jurors to speculate about whether they
would endanger public safety by finding Lopez insane. We disagree.
Procedural Background
       At the outset of the sanity phase of the trial, the trial court expressed its intent to
instruct the jury with CALCRIM No. 3450 prior to the opening statements by counsel.
CALCRIM No. 3450 includes the following optional paragraph:

       “[If you find the defendant was legally insane at the time of (his/her)
       crime[s], (he/she) will not be released from custody until a court finds
       (he/she) qualifies for release under California law. Until that time (he/she)
       will remain in a mental hospital or outpatient treatment program, if


                                              33.
       appropriate. (He/she) may not, generally, be kept in a mental hospital or
       outpatient program longer than the maximum sentence available for
       (his/her) crime[s]. 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[s]. You must not speculate
       as to whether (he/she) is currently sane or may be found sane in the future.
       You must not let any consideration about where the defendant may be
       confined, or for how long, affect your decision in any way.]” (CALCRIM
       No. 3450 (Oct. 2010 rev., italics added.)
       Defense counsel requested that the italicized portion of the instruction be deleted,
arguing that it would mislead the jury by incorrectly suggesting that Lopez’s sentence
would be anything less than a life sentence. Defense counsel suggested that the trial
court replace the two sentences with the statement, “He may or may not be kept in a
mental hospital or outpatient program for the rest of his life.” The trial court noted it was
not given any authority for the proposed change or that the instruction, as written, was an
incorrect statement of the law. The trial court gave defense counsel time to research the
issue and present authority. In the meantime, the trial court agreed, with concurrence
from both the prosecutor and defense counsel, not to include the above referenced
paragraph when it pre-instructed the jury with the CALCRIM No. 3450. The instruction
was given without this paragraph prior to opening statements by counsel.
       At a jury instruction conference during the sanity phase, the trial court readdressed
the issue. Defense counsel reiterated his request to delete the two challenged sentences.
The trial court noted that, according to the bench notes on the instruction, the paragraph
need not be given sua sponte but may be given on request. Defense counsel requested
that the paragraph be given, minus the complained of sentences. The trial court denied
defense counsel’s request, stating that it would either give the entire paragraph as written
or not give it at all, because it “[did not] make it a habit to kind of cut and paste from one
section and delete wholesale sentences like that.”




                                             34.
       After some discussion, defense counsel conceded that CALJIC No. 4.01 contained
“the same problem of referring to a maximum sentence that in this case doesn’t exist.”
When finally faced with the choice to give the paragraph in the instruction in its entirety
or omit it entirely, defense counsel chose to omit the paragraph in CALCRIM No. 3450.
He also declined to have the jury instructed with CALJIC No. 4.01 instead. But defense
counsel then requested the last paragraph of CALJIC No. 4.01 be substituted for the
objected portion of CALCRIM No. 3450. Defense wished to use the wording of CALJIC
No. 4.01, which states:

       “It is a violation of your duty as jurors if you find the defendant sane at the
       time he committed his offense because of a doubt that the Department of
       Mental Health or the courts will properly carry out their responsibilities.”
The trial court again ruled that it would not give the paragraph at issue and was not
inclined to make any modifications to it, such as adding language from CALJIC No. 4.01.
       The jury was subsequently again instructed prior to closing argument with
CALCRIM No. 3450, sans the contested paragraph. Following closing argument and
after further discussion about defense counsel’s original request, the trial court instructed
pursuant to CALCRIM No. 3550, in relevant part, “You must reach your verdict without
any consideration of punishment.”
Applicable Law and Analysis
       Lopez now argues that the trial court erred by refusing to modify the instruction as
requested, and that not doing so was prejudicial because the jury may have found him
sane simply due to concerns he would be released early if the jury found he was insane.
We disagree.
       Lopez’s argument is based on People v. Moore (1985) 166 Cal.App.3d 540
(Moore), which held that whenever requested by the defendant or jury, the trial court
should give an appropriate instruction regarding the consequences of an insanity verdict




                                             35.
to ensure the jury does not erroneously believe such a verdict will result in the immediate
freeing of the defendant. (Id. at pp. 554, 556.)
       “California law originally did not provide” for the type of instruction
contemplated by Moore. (People v. Kelly (1992) 1 Cal.4th 495, 538.) As a result of
Moore, however, CALJIC No. 4.01 was drafted in response and it was “intended to aid
the defense by telling the jury not to find the defendant sane out of concern that otherwise
he would be improperly released from custody.” (Kelly, supra, at p. 538.) The
instruction’s intent is to “protect the defense” in an insanity trial. (Ibid.)
       CALCRIM No. 3450 is the successor instruction to CALJIC No. 4.01.10
CALCRIM No. 3450, like its predecessor, is designed to protect a defendant in an

10      CALJIC No. 4.01 provides, in its entirety: “A verdict of ‘not guilty by reason of
insanity’ does not mean the defendant will be released from custody. Instead, [he] [she]
will remain in confinement while the courts determine whether [he] [she] has fully
recovered [his] [her] sanity. If [he] [she] has not, [he] [she] will be placed in a hospital
for the mentally disordered or other facility, or in outpatient treatment, depending upon
the seriousness of [his] [her] present mental illness. [¶] Moreover, [he] [she] cannot be
removed from that placement unless and until the court determines and finds the
defendant’s sanity has been fully restored, in accordance with the law of California, or
until the defendant has been confined for a period equal to the maximum period of
imprisonment which could have been imposed had [he] [she] been found guilty. [¶] So
that you will have no misunderstandings relating to a verdict of not guilty by reason of
insanity, you have been informed as to the general scheme of our mental health laws
relating to a defendant, insane at the time of [his] [her] crimes. What happens to the
defendant under these laws is not to be considered by you in determining whether the
defendant was sane or insane at the time [he] [she] committed [his] [her] crime[s]. Do
not speculate as to if, or when, the defendant will be found sane. [¶] You are not to
decide whether the defendant is now sane. You are to decide only whether the defendant
was sane at the time [he] [she] committed [his] [her] crime[s]. If upon consideration of
the evidence, you believe defendant was insane at the time [he] [she] committed [his]
[her] crime[s], you must assume that those officials charged with the operation of our
mental health system will perform their duty in a correct and responsible manner, and
that they will not release this defendant unless [he] [she] can be safely returned into
society. [¶] It is a violation of your duty as jurors if you find the defendant sane at the
time [he] [she] committed [his] [her] offense[s] because of a doubt that the Department of
Mental Health or the courts will properly carry out their responsibilities.”



                                              36.
insanity trial by alleviating the possible fears of the jury that he will be released into the
community if he is found not guilty by reason of insanity. (People v. Kelly, supra, 1
Cal.4th at p. 538.) The paragraph at issue in CALCRIM No. 3540 is not limited to the
two sentences to which Lopez objected. Instead, the instruction advises the jury of
several important facts: if the defendant is found insane, he will not be released from
custody until a court finds he qualifies for release under state law and, until that time, he
will remain in the appropriate treatment facility. The instruction concludes with the
important admonition: “You must not let any consideration about where the defendant
may be confined, or for how long, affect your decision in any way.” (CALCRIM No.
3450.)
         Both the paragraph with the contested language from CALCRIM No. 3450 and
CALJIC No. 4.01 are to be given if requested by the defense. (People v. Dennis (1985)
169 Cal.App.3d 1135, 1140-1141.) Defense counsel was asked several times whether he
wished to include the contested paragraph from CALRIM No. 3450 and was also asked if
he wished to have the jury instructed instead with CALJIC No. 4.01 in its entirety.
Defense counsel declined in each instance. Either one of these instructions would have
adequately addressed defense counsel’s concerns, and we reject his claim to the contrary.
         We note also that the jury was eventually instructed following argument by
counsel, pursuant to CALCRIM No. 3550, that it must reach its verdict without any
consideration of punishment. Absent evidence to the contrary, we presume the jurors
followed the court’s instruction. (People v. Yeoman (2003) 31 Cal.4th 93, 139.)
   VII.      CUMULATIVE ERROR
         Finally, Lopez contends that the cumulative impact of all of the above errors
deprived him of a fair trial. We have either rejected Lopez’s claims of error and/or found
that any errors, assumed or not, were not prejudicial. Viewed cumulatively, we find that
any errors do not warrant reversal of the judgment. (People v. Stitely (2005) 35 Cal.4th
514, 560.)

                                              37.
                                 DISPOSITION
     The judgment is affirmed.

                                               _____________________
                                                            Franson, J.
WE CONCUR:


 _____________________
Hill, P.J.


 _____________________
Cornell, J.




                                     38.
