Filed 5/23/16 P. v. Camunas CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D068197

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCS264069)

MIGUEL CAMUNAS,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Edward P.

Allard III, Judge. Affirmed.

         Robert Booher, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Christine

Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
       A jury found Miguel Camunas committed misdemeanor assault, robbery, and

burglary while at a Target store and store parking lot. (Pen. Code, §§ 211, 240, 459.)1

The jury found Camunas not guilty of assault with a deadly weapon and that he did not

personally use a deadly or dangerous weapon in committing the robbery. The court

reduced the burglary charge to a misdemeanor and placed Camunas on three years'

summary probation.

       Camunas contends (1) the prosecutor committed prejudicial misconduct during her

cross-examination and closing argument; (2) the court erred in failing to sua sponte give

an unconsciousness instruction; and (3) the court erred in failing to recognize it had the

discretion to dismiss the robbery count. We determine the contentions are without merit

and affirm.

                                 FACTUAL SUMMARY

Prosecution Case

       On the afternoon of April 14, 2013, 24-year-old Camunas entered a Target store,

took stereo equipment without purchasing the product, and then placed this large item in

the store parking lot. Camunas then immediately reentered the store and took two video

game systems, walked outside the store without purchasing the items, and placed the

systems in two empty shopping carts in the parking lot.

       Camunas then again reentered the store and went to a locked case containing

iPads. An employee asked if he needed assistance, and when Camunas did not respond,



1      All further statutory references are to the Penal Code.
                                             2
the employee called loss prevention. Camunas then went to the hardware department,

picked up a screwdriver, returned to the iPad case, and tried to pry it open. After a short

time, Camunas was able to open the case and took four iPads, and again walked out of

the store without paying for the items.

       Under Target's policy, the store employees did not confront Camunas and instead

called the police. But two Target employees (Christian Santiago, a security employee,

and Connor Nix, the general manager) followed Camunas outside the store and watched

him from a distance. They saw Camunas throw one of the iPads into the bed of a truck

leaving the parking lot.2

       Nix began speaking loudly into a walkie-talkie to identify the truck's description

and license plate number. Apparently hearing Nix, Camunas turned toward Nix and

began chasing him, yelling, "What the hell are you doing?" Nix testified he thought

Camunas had a screwdriver in his hand while he was chasing him, but other evidence

showed that Camunas threw the screwdriver into the bushes before he began running

towards Nix.3 During the chase, Camunas dropped all but one of the remaining iPads,

which he threw at Nix when he was about 15 feet away, but did not hit him. Camunas




2       Later investigation determined the truck owners had no knowledge or involvement
in the crimes; the owners returned the iPad shortly after discovering it in the back of their
vehicle.

3      The jury verdict shows the jury credited the evidence that Camunas did not have
the screwdriver while he was chasing Nix.

                                              3
then followed Santiago's commands to stop, and Camunas began collecting the iPads

from the ground.

       Meanwhile, Nix (who was terrified) ran into an adjacent store, where he told an

off-duty transit officer what had happened. The transit officer arrested Camunas, who

then sat on the ground. Police officers arrived shortly after, and Camunas complied with

the officers' directions. The officers testified that Camunas was silent, and did not

engage in schizophrenic-type behaviors such as grabbing at the air, hitting his head on the

ground, or talking to himself.

       Camunas was charged with several crimes, including: (1) robbery with an

enhancement allegation that he personally used a deadly and dangerous weapon (§§ 211,

12022, subd. (b)(1)); (2) assault with a deadly weapon (§§ 245, subd. (a)(1); and (3)

burglary (§ 459).

Defense

       Camunas's primary defense was that he did not have the requisite intent or state of

mind to commit the charged crimes because he suffered from mental illness. In support,

he presented the testimony of his mother (Mother) and adult sister, who testified to

Camunas's gradual mental decline and eventual paranoid schizophrenia diagnosis. When

Camunas was growing up and in his young adulthood, he was a successful, high-

functioning individual who attended college, was employed, coached soccer, and had

many friends. However, beginning in 2012, when he was about 23 years old, Camunas

began isolating himself and acting strangely. Soon after, he lost his job and broke up



                                             4
with his long-time girlfriend. When his family took Camunas to a doctor in December

2012, the doctor diagnosed him with depression and prescribed medication.

       During the next several months, Camunas's behavior continued to get worse. He

suffered from auditory hallucinations and had to be watched by his parents at all times.

On the morning before he committed the crimes, Camunas told Mother he was hearing

people talking about him, although "there was nobody there." Without his parents'

knowledge, Camunas then took their car and drove to the Target store. Later that day, he

was arrested for the robbery/burglary/assault offenses.

       At trial (which took place about two years after Camunas's arrest), Camunas's

counsel presented evidence of Camunas's postarrest mental health issues. About two or

three months after his arrest, in July 2013, Camunas's physicians again diagnosed him

with depression. About seven months later, in February 2014, Camunas was admitted to

a mental hospital (referred to as "Aurora Hospital"), where he stayed for about two

weeks. At the hospital, the doctors diagnosed Camunas with paranoid schizophrenia and

gave him medication for this condition. During the hospitalization, he suffered from

command hallucinations and florid psychotic symptoms, "basically the full schizophrenia

presentation . . . ."

       At the time of trial, Camunas was being treated by Dr. Neil Alex, who prepared a

letter regarding Camunas's current diagnosis. The letter, a defense exhibit at trial, read:

           "[Camunas] is currently under my care and has current diagnoses of
           major depression, generalized anxiety disorder, and psychotic
           disorder. He was diagnosed with chronic paranoid schizophrenia
           while under the care of Michael Takamur at Aurora Hospital and this
           diagnosis was [also] given by [a] therapist . . . . He continues to

                                              5
          have feelings that the Bible talks with him specifically, but no longer
          has command hallucinations which resulted in his hospitalization."

       Dr. Francesca Lehman, a clinical and forensic psychologist, testified at trial as a

defense expert. Dr. Lehman opined that at the time of the alleged crimes, Camunas was

in the "onset phase" of a schizophrenia disorder, "sometimes called schizophrenic break

or psychotic break"4 and he also engaged in marijuana abuse. She testified that during

the onset schizophrenia phase, there is a "decline in functioning," which can "be the

highest risk time" because "[t]hey do not know what is going on" and it may feel as if the

individual "is losing [his] mind." She said that during this time, "the diagnosis is often

missed or misdiagnosed and not treated properly. This is a time when they are declining

and often not getting the help they need, and the people around them are very

confused. . . . So this is a high risk time for a person who is sort of declining into mental

illness." Dr. Lehman opined that when Camunas committed the offenses he had

"impaired judgment," meaning he was not weighing the consequences of his actions in a

logical manner. Dr. Lehman said it was "unquestionable" that Camunas was engaging in

"goal-directed behavior" while he was at Target, but that his conduct—taking items from

the store and leaving them unattended in the parking lot—did not make sense and

"seemed strange and bizarre in nature."

       Regarding the marijuana abuse, Dr. Lehman testified this "is common with people

who are coming down with mental illness, particularly when they are untreated, they are


4      Dr. Lehman identified the formal name of the disease as "other schizophrenia
spectrum and other psychotic disorder-attenuated psychosis syndrome."

                                              6
trying to, often trying to get ahold of their mental states. It is kind of self-medicating

with marijuana . . . ." Dr. Lehman said that marijuana "can exacerbate the onset and

prognosis" of schizophrenia.

       After deliberations, the jury returned verdicts finding Camunas: (1) guilty of

robbery, but that he did not personally use a deadly or dangerous weapon in committing

this crime; (2) not guilty of assault with a deadly weapon, but guilty of the lesser included

misdemeanor simple assault crime; and (3) guilty of burglary.

                                       DISCUSSION

                            I. Alleged Prosecutorial Misconduct

       Camunas contends the prosecutor twice engaged in misconduct: (1) cross-

examining Camunas's mother about her testimony that marijuana caused Camunas's

schizophrenia; and (2) suggesting during oral argument that Camunas's current doctor did

not diagnose him with schizophrenia. We determine the prosecutor did not engage in

misconduct, and even if the prosecutor's challenged questions and arguments were not

fully supported by the record, the prosecutor's conduct did not preclude a fair trial or

affect the outcome of the trial.

                               A. Generally Applicable Law

       A criminal prosecutor is held to elevated standards "because of the unique

function he or she performs in representing the interests, and in exercising the sovereign

power, of the state." (People v. Hill (1998) 17 Cal.4th 800, 819-820.) " 'A prosecutor's

conduct violates the Fourteenth Amendment to the federal Constitution when it infects

the trial with such unfairness as to make the conviction a denial of due process.'

                                              7
[Citations.] Under California law, a prosecutor who uses deceptive or reprehensible

methods of persuasion commits misconduct even if such actions do not render the trial

fundamentally unfair." (People v. Doolin (2009) 45 Cal.4th 390, 444.)

       " ' "A defendant's conviction will not be reversed for prosecutorial misconduct"

that violates state law, however, "unless it is reasonably probable that a result more

favorable to the defendant would have been reached without the misconduct."

[Citation.]' [Citation.] Bad faith on the prosecutor's part is not a prerequisite to finding

prosecutorial misconduct under state law. [Citation.] . . . . ' "[T]he term prosecutorial

'misconduct' is somewhat of a misnomer to the extent that it suggests a prosecutor must

act with a culpable state of mind. A more apt description of the transgression is

prosecutorial error." ' [Citation.]" (People v. Lloyd (2015) 236 Cal.App.4th 49, 60-61.)

       Generally, a claim of prosecutorial misconduct or error is not preserved for appeal

if a defendant fails to object and seek a jury admonition, unless an objection and

admonition would not have cured the injury. (People v. Seumanu (2015) 61 Cal.4th

1293, 1339; People v. Crew (2003) 31 Cal.4th 822, 839.)

                             B. Cross-Examination of Mother

                                    1. Factual Summary

       During direct examination, Mother testified that Camunas's mental health

problems began in 2012 and continued through the trial date in March 2015. When

defense counsel asked Mother about Camunas's release from the mental hospital in

March 2014 (about 11 months after the charged crimes), Mother testified that she and her

husband and adult children had a family meeting with Camunas's psychiatrist, and during

                                              8
the meeting, "[t]he psychiatrist told us that [Camunas] was a paranoid schizophrenia, and

she told us that she thought it would be because he told her that he had smoked

marijuana." (Italics added.) She said the psychiatrist gave Camunas several

medications, but that the hallucinations continued. Mother testified that Camunas was

doing better by the time of trial after his doctors adjusted the medications.

       During cross-examination, the prosecutor elicited Mother's testimony that at the

time of the arrest Camunas had not yet been diagnosed with schizophrenia. The

prosecutor then referred to Mother's testimony about the connection between Camunas's

marijuana use and his schizophrenia diagnosis in March 2014. This exchange was as

follows:

           "[Prosecutor]: And it was at that time that his doctor informed you
           that he was diagnosed with paranoid schizophrenia and that was
           partly or because he smoked marijuana. Do you remember telling
           us that this morning?"

           "[Mother]: Yes."

           "[Prosecutor]: Were you aware that your son had been smoking
           marijuana?"

           "[Mother]: Before, he did not smoke marijuana."

           "[Prosecutor]: Before when?"

           "[Mother]: All of — before all of this." (Italics added.)

       In responding to several additional questions, Mother again said she had been

unaware of Camunas's marijuana use, but acknowledged that he might have used

marijuana to help him sleep. After this testimony, the prosecutor repeated: "And you,

again, you didn't see him smoking the marijuana that his doctor talked about and had led

                                              9
to schizophrenia, correct?" (Italics added.) Camunas replied "No. No." The prosecutor

then later repeated: "Returning your attention back to what the doctor told you about his

paranoid schizophrenia being from marijuana use, you don't know when he began using

marijuana, correct?" (Italics added.) Mother then denied that Camunas smoked

marijuana on the day of his arrest.

       On redirect, defense counsel asked Mother whether in March 2014, the

psychiatrist "told you [Camunas] got schizophrenia from smoking marijuana, or did she

tell you that smoking marijuana could make the schizophrenia worse? Mother replied

that Camunas's treating psychiatrist "said that she saw . . . that [Camunas] had paranoid

schizophrenia, and she thought that [the marijuana smoking] affected him even more."

Defense counsel then asked whether the doctor told her that "the marijuana caused the

paranoid schizophrenia or did she say that the marijuana could make the paranoid

schizophrenia worse?" Mother responded: "What she said was she told him to stop and

take his medication to see how . . . it would go."

       During recross, the prosecutor again asked several questions about Mother's

knowledge of Camunas's prior marijuana use, and then asked: "But the doctor who you

met with [at the family meeting in March 2014] noted that [Camunas's] marijuana use

was part of why he had paranoid schizophrenia?" (Italics added.) Mother responded:

"[The doctor] said that [Camunas] was paranoid schizophrenia and if he smoked

marijuana, that could make it worse." The prosecutor later again asked Mother whether

at the March 2014 family meeting, the doctor "discussed with you and your family that



                                             10
your son had paranoid schizophrenia and that was because he smoked marijuana,

correct?" Mother responded, "That it could be."

       The court then interrupted the prosecutor and (in the jury's presence) expressed

concern that the prosecutor was asking questions about the basis for Camunas's diagnosis

without having seen or evaluated the psychiatrist's report. The prosecutor acknowledged

she had not reviewed the report, and in response, the court implied the prosecutor's line of

questioning had been improper. The prosecutor then ended her cross-examination after

asking two additional questions about Mother's knowledge of Camunas's marijuana use.

       At the end of the trial, the court referred to this colloquy with the prosecutor, and

told the jury the exchange should have occurred outside the jury's presence because it

concerned a legal issue. The court assured the jury that the prosecutor was "a very good

lawyer and she is a very ethical lawyer," and that defense counsel is also "a very good

lawyer."

                                          2. Analysis

       Camunas contends the prosecutor engaged in prejudicial misconduct by asking

Mother questions about whether Camunas's marijuana use caused his schizophrenia

without any reasonable belief regarding the existence of such a link.

       Camunas's contention is without merit. The permissible scope of cross-

examination is broad. (People v. Cooper (1991) 53 Cal.3d 771, 822; see People v. Letner

and Tobin (2010) 50 Cal.4th 99, 199.) If a prosecutor has evidence providing a good

faith belief in the existence of a fact, then the prosecutor is entitled to question the

witness on the subject. (See People v. Lucas (1995) 12 Cal.4th 415, 467.) Mother

                                              11
testified during direct examination that Camunas's doctor told the family that his

schizophrenia was caused by marijuana use. Based on this testimony, the prosecutor was

entitled to at least inquire into the subject matter to clarify Mother's statement.

       We recognize that once Mother answered this question and provided clarification,

it was unnecessary for the prosecutor to repeat the question several more times and to

continue to dwell on this subject matter. But there is nothing in the record showing the

prosecutor's questions were deceptive or constituted reprehensible conduct that would

support a finding of prosecutorial error or misconduct. Moreover, to the extent the

prosecutor may have overly emphasized Mother's testimony regarding the schizophrenia-

causation issue, the court's comments to the prosecutor made clear to the jury that the

prosecutor's questions were not based on any medical or expert opinion. Further, the

question regarding the cause of Camunas's mental illness was a collateral issue. The jury

was instructed it could consider Camunas's mental illness to determine whether he acted

with the requisite intent or mental state, and the instruction did not contain any

limitations regarding the cause of the mental illness. (CALCRIM No. 3428.)5 Thus,



5       As read to the jury, this instruction stated: "You have heard evidence the
defendant may have suffered from a mental disease, defect, or disorder. You may
consider this evidence for the limited purpose of deciding whether, at the time of the
charged crime, the defendant acted or failed to act with . . . intent or mental state required
for that crime. [¶] The People have the burden of proving beyond a reasonable doubt
that the defendant acted or failed to act with the required intent or mental state,
specifically: [¶] As to [the robbery count], the intent to permanently deprive the owner of
his or her property; [¶] As to [the assault count], an awareness of facts that would lead a
reasonable person to realize that his act by its nature would directly and probably result in
the application of force to someone; [¶] And as to [the burglary count], the intent to
commit a theft when entering a building. [¶] If the People have not met this burden, you
                                              12
even assuming Camunas's voluntary behavior somehow caused his mental illness, this

was not a relevant consideration under the jury instructions and we presume the jury

followed those instructions.

       Additionally, it was essentially undisputed at trial that the connection between

marijuana and schizophrenia is that the drug use can exacerbate schizophrenia symptoms

or disease, and not that it is a cause of the illness. We reject the notion that the

prosecutor's references to Mother's hearsay testimony about what Camunas's psychiatrist

told her in March 2014 would have altered the jury's understanding of this undisputed

fact. And the prosecutor's questions, on balance, provided a strong potential benefit to

the defense. By repeatedly delving into the possible cause of Camunas's mental illness,

the prosecutor gave Mother the opportunity to elaborate on Camunas's symptoms and

illness, strengthening the defense arguments regarding Camunas's mental defects. There

was no prejudicial error.

          C. Prosecutor's Statements Regarding Camunas's Current Diagnosis

                                    1. Factual Summary

       During her closing argument, the prosecutor first detailed the evidence supporting

that Camunas committed the charged crimes. The prosecutor then stated "[w]e need to

talk about the elephant in the room"—the evidence of Camunas's mental illness. The

thrust of this latter argument was to urge the jury to view the objective manifestation of


must find the defendant not guilty of the crime of robbery as charged in count . . . 1 . . . ;
the [assault crime] as charged in count 2 . . . , [and] burglary . . . as charged in count
3 . . . ."

                                              13
Camunas's conduct (as seen on the store security videotape and related by the various

prosecution witnesses), and not to be improperly swayed by evidence of Camunas's

mental health issues. The prosecutor additionally referred to Dr. Lehman's opinions that

at the time of the incident Camunas did not suffer from schizophrenia, and instead was in

the "early onset" phase of the disease.

          During this discussion, the prosecutor briefly questioned the accuracy of

Camunas's current diagnosis, stating:

             "This is a very difficult diagnosis. Experts in this field even
             disagree. The defendant's current doctor [Dr. Alex], currently as
             recently as 10 days ago, has his current diagnosis is major
             depression, anxiety disorder and a psychotic disorder. [¶] The
             person treating him and seeing him consistently doesn't even go to
             the point where he says schizophrenia." (Italics added.)

Immediately after this comment, the prosecutor said: "But, again, this does not matter

because we're talking about [what occurred] in April [2013]" and told the jury that it "did

not need to decide [Camunas's] diagnosis." The prosecutor then spoke about the

objective manifestation of Camunas's conduct while he was committing the offenses and

argued that Camunas had the intent to commit the offenses despite his mental health

issues.

          After her argument, outside the presence of the jury, the court expressed concern

that both counsel were taking "liberties" with Dr. Alex's current diagnosis because neither

counsel had actually spoken with him. The court stated it believed the prosecutor was

arguing that Camunas "doesn't suffer from paranoid schizophrenia," and that this

argument was not based on any reasonable inferences from the evidence. The prosecutor


                                               14
disagreed that was her argument, stating she was merely suggesting that experts may

disagree on a schizophrenia diagnosis, and also noted "that [Dr. Alex] could have been

more specific and chose not to be in this letter that he specifically wrote."

       In her final argument, the prosecutor returned to the intent issue, directed the jury's

attention to the jury instruction on mental disease or defect (CALCRIM No. 3428), and

discussed Dr. Lehman's testimony that although Camunas currently suffers from

schizophrenia, he was suffering only from the "early onset" stage of the disease in April

2013. The prosecutor also highlighted Dr. Lehman's testimony that individuals with

schizophrenia can make decisions and commit crimes, and that although Camunas's

actions were "bizarre," the objective evidence showed he intended to steal the property

and knew what he was doing when he chased Nix.

                                         2. Analysis

       Camunas contends the prosecutor committed misconduct by suggesting in her

closing argument that he did not suffer from schizophrenia at the time of trial. The

contention is forfeited because Camunas's counsel did not object to the argument and ask

for an admonition. (See People v. Seumanu, supra, 61 Cal.4th at p. 1339.)

       Even if Camunas preserved the issue, the argument is without merit. The

prosecutor's challenged comments concerned the contents of Dr. Alex's letter regarding

Camunas's diagnosis at the time of trial (two years after the commission of the charged

crimes). In his letter, Dr. Alex did not directly state that Camunas suffers from

schizophrenia. He instead said this diagnosis was made by a doctor at Aurora hospital

and by a therapist. In the letter, Dr. Alex identified Camunas's current diagnoses as

                                             15
"major depression, generalized anxiety disorder and psychotic disorder." Although there

was evidence showing schizophrenia falls within the rubric of a "psychotic disorder," it

was not error for the prosecutor to briefly point out the ambiguity in the letter regarding

the current schizophrenia diagnosis. The prosecutor's argument about Dr. Alex's letter

fell within the prosecutor's wide latitude to vigorously argue the case and to make fair

comment upon the evidence during closing argument. (See People v. Peoples (2016) 62

Cal.4th 718, 797; People v. Sandoval (2015) 62 Cal.4th 394, 439; People v. Dykes (2009)

46 Cal.4th 731, 768.)

       In any event, in the remainder of her argument, the prosecutor essentially

conceded the current schizophrenia diagnosis, but argued this diagnosis did not preclude

the jury from finding Camunas had the requisite intent to commit the crimes, particularly

because Camunas's expert conceded that Camunas did not suffer from schizophrenia in

April 2013, and instead suffered only from an early onset version of the disease, and that

even assuming he had the disease, Camunas was capable of engaging in goal directed

behavior.

       Finally, any error was harmless. (Chapman v. California (1967) 386 U.S. 18, 24;

People v. Watson (1956) 46 Cal.2d 818, 836.) The trial court instructed the jury that the

attorneys' closing statements were not evidence and that if anything the attorney said

conflicted with the evidence or the court's instructions, the jury must independently

consider the evidence and follow the court's instructions. The jury had the opportunity to

examine Dr. Alex's letter and determine for itself the nature of Camunas's current

diagnosis. We presume the jurors understood and followed the trial court's instructions

                                             16
regarding its consideration of the evidence and counsel's argument. (See People v.

Sanchez (2001) 26 Cal.4th 834, 852.) Further, the issue of Dr. Alex's diagnosis was

collateral to the main issues at trial. Regardless whether Camunas suffered from a more

generalized psychosis condition or paranoid schizophrenia in 2015, the issue was whether

his mental illness in April 2013 precluded him from forming the requisite intent or state

of mind when he engaged in the alleged criminal acts.

                              II. Unconsciousness Instruction

       Camunas next contends the court erred in failing to sua sponte instruct the jury on

unconsciousness. (CALCRIM No. 3425.)

       Unconsciousness not resulting from voluntary intoxication is a complete defense

to a criminal offense. (See People v. Rogers (2006) 39 Cal.4th 826, 887 (Rogers); People

v. James (2015) 238 Cal.App.4th 794, 804 (James); People v. Heffington (1973) 32

Cal.App.3d 1, 8.) " 'Unconsciousness for this purpose need not mean that the actor lies

still and unresponsive.' " (People v. Gana (2015) 236 Cal.App.4th 598, 609 (Gana).)

" '[U]nconsciousness " 'can exist . . . where the subject physically acts in fact but is not, at

the time, conscious of acting.' " ' " (Ibid.) This may occur as a result of a mental illness

or mental defect. (James, at pp. 804-810.)

       A trial court has a sua sponte duty to instruct on the unconsciousness defense if

there is substantial evidence to support the defense. (Rogers, supra, 39 Cal.4th at p. 887;

see People v. Ray (1975) 14 Cal.3d 20, 25.) This duty arises if it appears the defendant is

relying on the defense, or if there is substantial evidence supporting the defense and the

defense is not inconsistent with the defendant's theory of the case. (Rogers, at p. 887.)

                                              17
       In this case, Camunas did not rely on an unconsciousness defense and the evidence

did not warrant an instruction. There were no facts showing Camunas was unconscious

at the time of the charged offenses. On the morning of the offense, Camunas's mother

saw him crying in his room, and offered to take him shopping. Once his mother went

into a different part of the house, Camunas secretly took his parents' car and drove to a

nearby Target store. He then engaged in a multi-step process of taking goods from the

store. He walked into and out of the store three times, taking items that likely had value

to this young man—stereo equipment, video games, and iPads—and he had the

wherewithal to obtain a tool from the hardware department to open the locked iPads case.

He later chased after the store manager who was reporting Camunas's actions on a

walkie-talkie. These events do not support a reasonable inference that Camunas was

unconscious at the time, in the sense that he had no control over, or awareness of, his

actions.

       We reach the same conclusion even when crediting Camunas's evidence that he

was suffering from substantial mental illness at the time he committed the offenses.

Mother and Camunas's sister testified about Camunas's mental health problems, including

his hearing voices, depression, and inability to engage with others. Dr. Lehman opined

that Camunas suffered from a pre-schizophrenia condition at the time, and that this

condition could have resulted in his acting in an illogical, strange, and bizarre fashion.

But neither Camunas's family members nor Dr. Lehman stated or suggested that

Camunas was wholly unaware of his actions or had no control over his actions while he

was at the Target store.

                                             18
       The fact that a person acts in an illogical manner does not equate with

unconsciousness. In this regard, this case differs from the decisions relied upon by

Camunas. (See, e.g., James, supra, 238 Cal.App.4th 794; Gana, supra, 236 Cal.App.4th

598.) In Gana, the defense expert testified that the defendant was manifesting " 'a

delirium' " during which she was experiencing a " 'fluctuating level of consciousness.' "

(Gana, at p. 610.) In James, the defendant was unresponsive to police officer commands,

and expert opinion established the defendant was "experiencing a severe psychotic

episode" and he " 'did not have awareness of what took place' during the incident."

(James, at p. 810.) Here, the undisputed evidence showed that Camunas responded to

officer commands and was aware of the relevant events.

       Further, the absence of an unconsciousness instruction "is not prejudicial if ' "the

factual question posed by the omitted instruction was necessarily resolved adversely to

the defendant under other, properly given instructions." ' " (Gana, supra, 236

Cal.App.4th at p. 610.) Camunas's central defense was that he did not form the requisite

intent to commit any of the defenses because of his mental condition. The court

instructed the jury it could consider the evidence of Camunas's "mental disease, defect or

disorder" in determining whether the People met their burden to prove Camunas acted or

failed to act with the required intent or mental state with respect to each of the charged

crimes. (See CALCRIM No. 3428.) And the jury was told that if Camunas did not act

with the requisite intent or mental state based on his mental illness, "you must find the

defendant not guilty" of the robbery, assault, and burglary crimes. (Italics added.)



                                             19
       Given this instruction, the evidence, and counsel's arguments, the jury had the full

opportunity to consider Camunas's mental state defense and it necessarily rejected the

notion that Camunas had no conscious awareness of his actions when he committed the

offenses. By finding Camunas guilty, the jury found the prosecution proved beyond a

reasonable doubt the allegations that Camunas acted with the requisite state of mind and

intent in committing the offenses and was not unconsciousness at the time. Accordingly,

even if the court erred in failing to instruct on unconsciousness, the error was harmless.

                          III. Court's Authority to Strike Offense

       Camunas contends the court erred because it did not realize it had the authority to

dismiss the robbery conviction under section 1385.

                                 A. Factual Background

       At the sentencing hearing, the trial judge spoke at length about his concern and

empathy for Camunas's situation and his mental health condition. The court expressed its

view that the prosecution had overcharged the case, particularly with respect to the

robbery charge and had failed to engage in a meaningful plea bargaining process. The

court emphasized that Camunas's mental illness had been improperly diagnosed at the

time he committed the charged offenses, and that Camunas was not at fault for his

disease.

       During this discussion, the court made clear it did not view the case as a robbery

case, and expressed considerable unease with the fact that the robbery would constitute a

strike under California's Three Strikes law and Camunas would "[have] to live with" the

strike "his entire life." The court stated a robbery strike would impose a significant

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burden on Camunas's future prospects, noting it would be difficult for Camunas to find

employment: "That is the problem that I have. It is already taking somebody who is

going to have a difficult life to begin with and really needs continued care and

treatment. . . . He's been hamstrung now even further as a result of this case. [¶] . . .

[T]he idea that he has to basically be somebody that we have to label as a robber with a

strike, No. The designation doesn't fit him and these facts don't fit."

       On the other hand, the court acknowledged the evidence supported the jury's

findings and the jury had the full opportunity to consider Camunas's mental health

defense but found he acted with the requisite intent. The court indicated that during trial

it had conducted independent legal research and had concluded that the evidence

supported a robbery conviction based on an Estes-robbery theory. (People v. Estes

(1983) 147 Cal.App.3d 23, 27.)6 The court also commended the Target employees for

following their security directives, and stated that they were not responsible for

Camunas's criminal behavior.

       At the conclusion of this discussion, the court stated: "And before I impose

judgment, I will just make it very clear. If I could reduce the robbery, I would. I can't. If

I could, I would and I would do it in a second and . . . [my comments] in the last hour

. . . will bear out why. [¶] Anybody wants to look at it and [I] basically encourage them



6      Under Estes, "a robbery occurs when defendant uses force or fear in resisting
attempts to regain the property or in attempting to remove the property from the owner's
immediate presence regardless of the means by which defendant originally acquired the
property." (Estes, supra, 147 Cal.App.3d at pp. 27-28.)

                                              21
to look at this record, look at the court's statements. And anybody then can judge my

comments in this particular case."

       Based on its review of the entire record and the "substantial mitigation" associated

with Camunas's mental illness, the court found the appropriate sentence would be to

place Camunas on three years' summary probation. The court noted that Camunas has

"incredible family support" and Camunas has done well living with his family during the

two years after committing the offenses. The court also reduced the burglary conviction

to a misdemeanor.

                                        B. Analysis

       A court abuses its discretion if it erroneously believes it had no discretion or

misunderstands the extent of the discretion. (See People v. Superior Court (Romero) 13

Cal.4th 497, 530, fn. 13; People v. Marquez (1983) 143 Cal.App.3d 797, 803.) Relying

on this principle, Camunas contends the court abused its discretion because its comments

at the sentencing hearing indicate it wanted to dismiss the robbery offense but believed it

had no authority to do so. Camunas maintains the court had the authority to dismiss the

offense under section 1385, subdivision (a), which provides: "The judge . . . may, either

on his or her own motion or upon the application of the prosecuting attorney, and in

furtherance of justice, order an action to be dismissed."

       There was no abuse of discretion. Having carefully reviewed the record, we are

confident the court fully understood the scope and extent of its discretion. The court

never spoke of dismissing the robbery count; it referenced only its inability to "reduce"

the robbery to a lesser offense. Although the court expressed its disagreement with the

                                             22
manner in which the district attorney's office charged the case and handled the plea

bargaining and said it wished it could reduce the robbery count, the court's comments do

not support that it would have struck or dismissed the robbery conviction.

       Camunas argues that we should interpret the court's comments to mean it would

have done "anything within its power to reduce the burden on appellant resulting from

this case." (Italics added.) Camunas misreads the record. The court indicated it desired

to "reduce the robbery" (to a misdemeanor or nonstrike count), but never said or

suggested it had any desire to entirely strike the conviction. (Italics added.) The court

was correct there is no procedure for reducing a robbery to a misdemeanor or eliminating

the potential future burden of a current robbery being later pled as a strike. The focus of

the court's remarks was on its desire to minimize the potential consequences of

Camunas's criminal acts on his future life. The court achieved this objective by imposing

summary probation, discussing with the family the strong need to continue Camunas's

mental health care and medications, and presenting its views of the case for later

consideration in the event Camunas suffers a subsequent felony conviction and that

sentencing court is asked to strike this robbery conviction.

       The trial judge has substantial criminal trial experience and made clear it had

considered all the facts and circumstances as required by law, and took time to carefully

review the case before imposing the sentence. Although it may have disagreed with the

jury's verdict, it was satisfied the verdict was supported by the law and the facts of the

case. The trial court's comments about wishing it could reduce the robbery to diminish

the effect of the conviction on Camunas's future cannot be fairly interpreted to mean the

                                             23
court failed to appreciate the scope of its discretion. Viewed in context, the court was

acknowledging it could not reduce the robbery conviction to a lesser nonstrike conviction

and understood it would not be proper to dismiss the robbery conviction solely to relieve

Camunas from having a strike conviction on his record.

       Although the trial court expressed substantial compassion for Camunas, the court

accepted the fact that the jury found beyond a reasonable doubt that Camunas committed

the robbery. Absent any contrary indication in the record, we are required to presume

judges know and understand the law. (People v. Galvez (2011) 195 Cal.App.4th 1253,

1264.) The court's expressions of compassion and sympathy do not support a finding that

this presumption has been rebutted.

                                      DISPOSITION

       Judgment affirmed.



                                                                    HALLER, Acting P. J.

WE CONCUR:



MCDONALD, J.



IRION, J.




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