Filed 1/27/14 P. v. Basey CA2/3
              NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                SECOND APPELLATE DISTRICT

                                           DIVISION THREE


THE PEOPLE,                                                              B239723

         Plaintiff and Respondent,                                      (Los Angeles County
                                                                        Super. Ct. No. LA064105)
         v.

TYREESE BASEY,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Michael K. Kellogg, Judge. Affirmed.
         John Alan Cohan, under appointment by the Court of Appeal, for
Defendant and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Mary Sanchez,
Deputy Attorney General, for Plaintiff and Respondent.

                                   _________________________
       Defendant and appellant, Tyreese Basey, appeals his conviction for
attempted unlawful driving or taking of a vehicle, unlawful driving or taking of a
vehicle, hit and run (property), carjacking and attempted carjacking, with a prior
prison term enhancement (Veh. Code, §§ 664, 10851, 20002; Pen. Code, §§ 664,
215, 667.5).1 He was sentenced to state prison for a term of ten years and six
months.
       The judgment is affirmed.
                                 BACKGROUND
       Viewed in accordance with the usual rule of appellate review (People v.
Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established the following.
       1. Count 2: Attempted unlawful driving of the Cortez vehicle.
       Around 5:30 a.m. on January 9, 2010, Jose Cortez was returning home from
work. As he was getting out of his car, he ran into defendant Basey who asked for
Cortez’s car keys. When Cortez refused, Basey tried to grab the keys. Cortez
resisted and ran to the front of his apartment building and yelled for help. Basey
pushed Cortez to the ground and hit him in the forehead while unsuccessfully
trying to grab the keys. Basey fled when Cortez’s neighbors came outside.
       2. Count 3: Carjacking of Uribe.
       Later that same morning, Rudy Uribe was in a donut shop in Van Nuys.
He had just ordered food for himself and his daughter. He placed his car keys on
the table and was reading a book while waiting for his order. Basey walked by
and grabbed Uribe’s keys.
       Basey left the donut shop and tried to unlock a truck, but it wasn’t Uribe’s
vehicle. Uribe approached and said, “I want my keys back.” Basey asked, “Is this
your truck?” Without answering, Uribe asked for his keys back. Basey again
asked about the truck, this time more angrily. Uribe did not answer and Basey



1      All further references are to the Penal Code unless otherwise specified.
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walked over to Uribe’s car, which was parked next to the truck. Uribe again
approached and said, “I need my keys.” Basey reached into his waistband and
said, “I have a gun, you motherfucker.” Uribe put his hands up and walked back
to the donut shop. Basey drove off in Uribe’s silver Toyota Avalon.
        3. Count 4: Hit and run.
        Between 7:00 and 7:30 a.m. that same morning, Jesse Arispuro, a security
guard at the Skirball Cultural Center Museum, heard a loud boom and saw a silver
car hit the curb, fly into the air, hit a tree, and lodge itself between a fence and the
Skirball Center’s water main. Rushing over to the crash, Arispuro saw Basey exit
the car and walk past him. When Arispuro asked if he needed help, Basey said
“no” and continued walking away. Arispuro’s supervisor radioed him not to lose
sight of Basey, so Arispuro followed him to the second floor of the parking
structure. Basey tried to enter a Toyota truck, but it was locked. Basey then tried
to enter an elevator, but Arispuro’s supervisor had ordered the elevators locked.
While heading toward a stairwell, Basey ran into Arispuro and his supervisor, who
told Basey they had called the police to report a hit-and-run. Basey immediately
fled.
        4. Count 6: Taking Leonard’s vehicle.
        Shortly thereafter, at about 8:00 a.m., Christopher Leonard was at home in
Encino when he heard the motor of his Ford Expedition running. The Ford was in
his driveway and the keys had been left on his dining room table, which was
visible from the side yard. The house was unlocked at the time. Leonard came
out of the house and found Basey in the Ford’s driver’s seat. Leonard yelled,
“What are you doing?” and banged on the Ford. Basey was struggling to get the
vehicle into gear. When he was succeeded, he quickly backed out, sped down
Leonard’s steep driveway and crashed into a neighbor’s brick wall. Leonard ran
over and started banging on the Ford again, telling Basey to get out. Basey put the
Ford into gear again and drove off.
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       5. Basey’s arrest.
       On the following day, Los Angeles Police Sergeant James Kim responded
to a 911 call reporting a burglary suspect in a Laundromat on Lenox Ave. He
found Basey standing in his boxer shorts inside the Laundromat. Kim handcuffed
him and asked for identification. Basey directed him to a plastic shopping bag on
the floor. Inside the bag, Kim found Basey’s identification and a set of keys.
When Kim hit the key alarm, a Ford Expedition activated. Basey was arrested.
                                 CONTENTION
       The trial court erred by restricting the proposed testimony of a defense
psychiatric expert.
                                  DISCUSSION
       Basey contends the trial court erred by restricting a defense expert’s
proposed testimony about Basey’s schizophrenia. This claim is meritless.
       1. Background.
       In April 2010, Basey was found incompetent to stand trial on the basis of
psychiatric reports from Dr. Kory J. Knapke and Dr. Kaushal Sharma, and he was
admitted to Metropolitan State Hospital (MSH). Knapke later submitted a second
report concluding Basey was still incompetent, but Sharma’s second report
concluded Basey was now competent. On April 21, 2011, the trial court found
Basey mentally competent to stand trial.
       Before the jury was empanelled, defense counsel raised the issue of
whether Dr. Knapke could testify. The trial court expressed concern about the
relevancy of Knapke’s testimony because his report had addressed competency,
rather than the defense of not guilty by reason of insanity. Defense counsel took
the position Knapke’s opinion was relevant to the issue of Basey’s specific intent,2



2       Both carjacking and the unlawful taking or driving of a vehicle are specific
intent crimes.
                                         4
arguing that “if a person believes . . . it’s his property whether by a mental health
[defect] or by mistake of fact, it’s not a crime.” Counsel said he expected
Knapke’s testimony to demonstrate Basey “suffered from a serious mental health
defect from the date of arrest, that . . . he was under some . . . paranoid, delusional
thoughts[, and] believed he was the [prophet] of god.”
       The trial court ruled Knapke’s testimony might be relevant if Basey
decided to testify and put his mental health at issue. Subsequently, the court held
a mid-trial evidentiary hearing on the admissibility of Knapke’s testimony.
Although Knapke was not present for this hearing, defense counsel made a record
based on a letter he had received from Knapke.
       Defense counsel represented that, after reviewing the MSH records, the
police reports, and the transcript of a police interview from when Basey was
arrested, Knapke concluded Basey had been schizophrenic at the time of his arrest.
Knapke did not believe Basey was malingering. Defense counsel said he planned
to ask Knapke if someone suffering an extreme schizophrenic episode “could . . .
believe truly that the property is his and they are a messenger of god,” and that
Knapke would agree a “person in that situation going through that delusion may
truly believe that.”
       The trial court asked what Knapke would be talking about “other than
schizophrenia in general?”, to which defense counsel replied: “Delusional
behavior, the medications that my client required to regain competency,” and
“that [Basey] is schizophrenic and delusional at times. That he was suffering at
the time he observed him in Department 95. He was psychotic,” and that he may
have been “operating under those same type of delusions at the time of his arrest.”




                                           5
       Defense counsel then said he specifically asked Knapke if someone who
was delusional might steal a vehicle believing “that’s through God and not
intending to take property from another.”3 (Italics added.) The trial court replied:
“When you use that last phrase, that’s precluded in all case law. . . . Up until that
point it’s admissible. Up until the point where you changed it. By saying – and
you didn’t use specific intent[,] to form specific intent, you didn’t use any of that.
Just changing the wording or changing the definition doesn’t change the purpose
for which the testimony is being offered. [¶] If the testimony is being offered to
preclude the ability of your client to form any specific intent, it’s barred by both
[sections] 28 and 29 of the Penal Code. . . . All you’re doing is changing the
language. By changing the language you’re seeking admissibility of inadmissible
evidence . . . .”
       The trial court ruled Knapke “can and would be allowed to talk to this jury
in general terms about schizophrenia, about disassociation, about delusion,” but
not about whether or not Basey had the ability to “make a conscious decision as to
the specific intent involved.” Defense counsel asked if Knapke would be
permitted to offer an opinion as to “whether or not Mr. Basey was delusional or
psychotic at the time these incidents occurred? Without going into specific intent
to do these things, just was he . . . exhibiting delusional psychotic behavior at the
time.” The trial court said no: “It would be the same thing as using synonyms and
make up another word that would be identical to specific intent. . . . [B]ecause if
you say that he is delusional or if he is compulsive at that time, it’s one and the




3       Defense counsel said: “Then I asked [Knapke] in generalities what type of
symptoms in . . . extreme cases someone with delusional thoughts or
schizophrenia, what the symptoms would be and whether or not hypothetically a
person can be . . . in this type of scenario that vehicles were in front [sic], that
that’s through God and not intending to take property from another.”

                                           6
same of saying he didn’t have the ability to form specific intent. The doctors are
precluded from doing that.” (Italics added.)
       Defense counsel subsequently indicated that, based on the trial court’s
ruling, Knapke would not testify.
       2. Standard of review.
       A trial court has broad discretion in determining whether to admit expert
testimony and its ruling will be reversed on appeal only where the record reveals
an abuse of discretion. (People v. McAlpin (1991) 53 Cal.3d 1289, 1299
[“the decision of a trial court to admit expert testimony ‘will not be disturbed on
appeal unless a manifest abuse of discretion is shown’ ”]; People v. Ramos (2004)
121 Cal.App.4th 1194, 1205 [trial court did not abuse its discretion in refusing to
admit expert testimony regarding police interrogation techniques and false
confessions].)
       3. Discussion.
       Basey contends the trial court erred by limiting Dr. Knapke’s testimony
“to speaking about schizophrenia in generalities,” and precluding him from
testifying “whether appellant was operating under delusional behavior at the time
of the charged offenses and whether . . . there was evidence from which the jury
might infer that appellant lacked the mental state required to commit the charged
crimes.”
       We disagree. Letting Knapke testify Basey was delusional when he
committed the charged acts would, in effect, have allowed Knapke to testify Basey
had been acting with a state of mind that negated specific intent. “Expert opinion
on whether a defendant had the capacity to form a mental state that is an element
of a charged offense or actually did form such intent is not admissible at the guilt




                                          7
phase of a trial. [Citation.] Sections 28 and 29[4] permit introduction of evidence
of mental illness when relevant to whether a defendant actually formed a mental
state that is an element of a charged offense, but do not permit an expert to offer
an opinion on whether a defendant had the mental capacity to form a specific
mental state or whether the defendant actually harbored such a mental state.”
(People v. Coddington (2000) 23 Cal.4th 529, 582, fns. omitted, disapproved on
other grounds by Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)
       In People v. Nunn (1996) 50 Cal.App.4th 1357, Nunn had been charged
with assault with a deadly weapon and attempted murder after he fired his gun at
several people for no apparent reason. Dr. Lipson, a clinical psychologist,
examined Nunn and concluded that as a result of Vietnam war trauma he
overreacted to stress and apprehension. Lipson also concluded the encounter
giving rise to the criminal charges “was the type that could result in an impulsive
reaction from one with appellant’s mental condition.” (Id. at p. 1365.) The trial
court ruled Lipson’s conclusion that Nunn had fired his gun impulsively was




4       Section 28 states, in relevant part: “(a) Evidence of mental disease, mental
defect, or mental disorder shall not be admitted to show or negate the capacity to
form any mental state, including, but not limited to, purpose, intent, knowledge,
premeditation, deliberation, or malice aforethought, with which the accused
committed the act. Evidence of mental disease, mental defect, or mental disorder
is admissible solely on the issue of whether or not the accused actually formed a
required specific intent, premeditated, deliberated, or harbored malice
aforethought, when a specific intent crime is charged.”
        Section 29 states: “In the guilt phase of a criminal action, any expert
testifying about a defendant’s mental illness, mental disorder, or mental defect
shall not testify as to whether the defendant had or did not have the required
mental states, which include, but are not limited to, purpose, intent, knowledge, or
malice aforethought, for the crimes charged. The question as to whether the
defendant had or did not have the required mental states shall be decided by the
trier of fact.”

                                          8
inadmissible because it amounted to an opinion about Nunn’s intent at the time of
the shooting.
       The Court of Appeal found no error: “Appellant seems to suggest that
section 29 allows an expert to express any opinion, however specific and
determinative of the mental issues involved, as long as he does so without using
the name of the specific mental state involved, for example, malice aforethought.”
(People v. Nunn, supra, 50 Cal.App.4th at p. 1363.) “We conclude section 29
does not simply forbid the use of certain words, it prohibits an expert from
offering an opinion on the ultimate question of whether the defendant had or did
not have a particular mental state at the time he acted. An expert may not evade
the restrictions of section 29 by couching an opinion in words which are or would
be taken as synonyms for the mental states involved. Nor may an expert evade
section 29 by offering the opinion that the defendant at the time he acted had a
state of mind which is the opposite of, and necessarily negates, the existence of the
required mental state.” (Id. at p. 1364.)
       Nunn went on: “We conclude . . . sections 28 and 29. . . allow the
presentation of detailed expert testimony relevant to whether a defendant harbored
a required mental state or intent at the time he acted. Thus, in the present case it
was permissible for Dr. Lipson to opine that appellant, because of his history of
psychological trauma, tended to overreact to stress and apprehension. It was
permissible for him to testify such condition could result in appellant acting
impulsively under certain particular circumstances. Dr. Lipson could have
evaluated the psychological setting of appellant’s claimed encounter with the men
at the fence and could have offered an opinion concerning whether that encounter
was the type that could result in an impulsive reaction from one with appellant’s
mental condition. What the doctor could not do, and what the defense proposed he
do here, was to conclude that appellant had acted impulsively, that is, without the
intent to kill, that is, without express malice aforethought. The court acted
                                            9
properly in excluding Dr. Lipson’s opinion that appellant fired his weapon
impulsively.” (People v. Nunn, supra, 50 Cal.App.4th at p. 1365, fn. omitted,
italics added.)
       In the case at bar, the trial court properly indicated Dr. Knapke would have
been allowed to testify Basey suffered from schizophrenia, and to explain the
symptoms and effects of that disorder. Knapke could discuss the details of
Basey’s condition, his hospitalizations, and the medications he had been
prescribed. Knapke could explain the sort of delusions someone with Basey’s
diagnosis would typically experience, and opine that one such delusion would be
the belief stolen property actually belonged to him because he was God’s
messenger. On the other hand, the trial court properly precluded Knapke from
offering his opinion Basey was in fact delusional when he was taking or trying to
take the vehicles. Such testimony could have been understood by the jury as
Knapke’s expert opinion that Basey lacked the requisite specific intent because he
had been acting out of a delusion.
       Basey cites People v. Aris (1989) 215 Cal.App.3d 1178, disapproved on
other grounds in People v. Humphrey (1996) 13 Cal.4th 1073, 1086, as a case
where “restriction to testimony in ‘generalities’ was found to be in error.”
Aris killed her husband while he slept. At trial, she wanted to present expert
testimony on battered woman syndrome to support her self-defense claim.
Basey relies on the following portion of Aris: “[I]t was error not to permit
Dr. Walker to testify . . . how the defendant’s particular experiences as a battered
woman affected her perceptions of danger, its imminence, and what actions were
necessary to protect herself. An expert’s opinion about a defendant’s mental state
does not violate section 29 as long as the expert does not express an opinion on
the ultimate issue that defendant did or did not have a mental state required for a
charged offense. [Citations.] Dr. Walker’s proposed testimony that defendant
was a battered woman and how being a battered woman affected defendant’s
                                         10
perceptions and conduct stops short of the ultimate issue of what defendant’s
perception actually was and, therefore, does not violate section 29.”
(People v. Aris, supra, 215 Cal.App.3d at p. 1198, fn. omitted)
       But Basey is ignoring another portion of the same opinion: “However,
Dr. Walker’s opinion is inadmissible to the extent that it is testimony ‘the
defendant had or did not have . . . malice aforethought . . . .’ [Citation.] Since
having an actual perception that one is in imminent danger negates malice
aforethought [citation], we hold that Dr. Walker was properly prohibited from
stating an opinion that defendant actually perceived that she was in imminent
danger and needed to kill in self-defense.” (People v. Aris, supra, 215 Cal.App.3d
at pp. 1197-1198.) If anything, the reasoning in Aris supports the trial court’s
ruling here.
       Basey argues Knapke “should have been able to testify that, on the day of
the charged offenses, appellant was gripped by certain delusions, so long as his
cross examination did not offer an opinion on whether appellant’s mental defect
prevented him from having specific intent.” (Italics added.) We disagree. It is
clear from the record those “certain delusions” consisted of Basey’s purported
belief he was entitled to take the vehicles because he was acting on God’s orders.5
In this situation, Knapke’s testimony that Basey was delusional at the time of the
incidents amounted to expert evidence Basey did not have the specific intent
required to commit either carjacking or the unlawful taking of a vehicle. Such
testimony violates Penal Code sections 28 and 29.




5       As Basey acknowledges: “In Dr. Knapke’s report . . . he states that during
his interview with detectives . . . appellant said that he is a ‘prophet of God named
Royal Republic and is a joint heir with God. All things belong to God and he,
suspect Basey, can take whatever he wants but it was actually God taking those
things through him.’ ”

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      The trial court did not abuse its discretion by restricting the scope of
Knapke’s proposed testimony.
                                  DISPOSITION
      The judgment is affirmed.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                 KLEIN, P. J.


We concur:



             CROSKEY, J.




             ALDRICH, J.




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