Filed 9/28/15




                        CERTIFIED FOR PUBLICATION

         IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         SECOND APPELLATE DISTRICT

                                    DIVISION SIX


THE PEOPLE,                                               2d Crim. No. B243376
                                                         (Super. Ct. No. 1281737)
     Plaintiff and Respondent,                            (Santa Barbara County)

v.

LEE ISAAC BEDWELL LEEDS,

     Defendant and Appellant.




                A defendant accused of murder pleads not guilty by reason of
insanity. He claims that his delusional state caused him to believe that he was
acting in self-defense. Here we hold that an instruction on self-defense in the
sanity phase must inform the jury that a defendant's delusion caused him to
believe that he was in danger of great bodily injury or death that required the use
of deadly force and that he would be legally justified in doing so.
                Lee Isaac Bedwell Leeds shot and killed his father and three other
men whom he believed were conspiring to kill him. He was charged with their
murders (Pen. Code, §§ 187, subd. (a), 189)1 and multiple murder special
circumstance (§ 190.2, subd. (a)(3)) and gun use allegations (§ 12022.53, subds.


1
    All further statutory references are to the Penal Code unless otherwise stated.
(b), (c), (d)). When Leeds was arraigned on the complaint his counsel informed
the court that Leeds was incompetent to stand trial. (§ 1368.) Based on the
reports of the appointed mental health experts, the trial court found him to be
incompetent, suspended criminal proceedings, and committed him to Patton State
Hospital. (§§ 1369, 1370.) Three years later, he was found competent (§ 1372)
and criminal proceedings were resumed. (§ 1370, subd. (a)(1)(A).)
              Leeds is a diagnosed paranoid schizophrenic. Pursuant to a plea
agreement that precluded imposition of the death penalty, he entered pleas of
guilty and not guilty by reason of insanity to four counts of first degree murder.
(§§ 1016, subd. (6), 1026, subd. (a).) He claimed that due to the hallucinations
and delusions caused by his mental illness he was legally insane when he
committed the offenses because he believed that it was necessary to defend
himself by killing the "conspirators" before they killed him. He admitted the
special circumstance and gun use allegations. A jury found he was sane as to all
four counts. The trial court sentenced him to state prison for four consecutive
terms of life without the possibility of parole and four consecutive 25-year terms
for the gun use enhancements.
              Leeds contends that the jury was erroneously instructed that, in
determining whether he was insane, his right to claim self-defense was to be
measured by a reasonable person's "understanding that his act was morally or
legally wrong." We conclude that he was legally insane when he killed the
victims if, as a result of his delusion, the facts as he perceived them, even if
erroneous, would entitle him to claim self-defense. We conclude that the trial
court erred when it instructed the jury that to claim self-defense, Leeds's beliefs
also had to be reasonable. By definition, the beliefs of a paranoid schizophrenic
may not be those of a reasonable person presented with the same facts. As to
three of the victims, however, the error was harmless. As we shall explain, his
father could have been perceived as an immediate threat. We reverse as to that
count.

                                          2
              Leeds also alleges error due to (1) the admission of testimony about
the consequences of an insanity verdict; (2) a jury instruction on the
consequences of an insanity finding; (3) the content of the jury questionnaire;
and (4) cumulative error. We reject his other contentions of error. Accordingly,
we affirm in part, reverse in part, and remand.
                FACTS AND PROCEDURAL BACKGROUND
                                   Background
              Leeds's family owns Black Road Auto, a wrecking yard in Santa
Maria. His father, Robert Leeds, and his father's business partner once owned a
resort in Baja, Mexico. His father dissolved the partnership after discovering the
partner was involved in selling drugs and in prostitution. Leeds knew that the
partner threatened to send a Mexican drug cartel after Leeds's father.
              Leeds was diagnosed with paranoid schizophrenia in 2000 when he
was 22 years old. Approximately four months before the murders, he stopped
taking his antipsychotic medication. His mental condition began to deteriorate.
He became "weird." He often sat alone in the corner of a room, talking to
himself and laughing for no apparent reason.
              Leeds believed that the Mexican drug cartel had infiltrated his
family's business and was turning it into a drug distribution system. He thought
the cartel planned to kill him because he would not cooperate in transporting
drugs and that his father had succumbed to the cartel's threats. He hired a private
investigator to check up on Terry Majan, one of his father's employees, whom he
believed was lying to and stealing from his father.
              Leeds was concerned about a war he perceived being waged
between Santa Barbara County and other counties in the south. He believed that
there were missiles along the highway and that he saw one being fired. He was
concerned that drug cartel members were looking for him and knew he might be
leaving the area.

                                         3
              During this time Leeds withdrew money from his safe deposit box.
While there he overheard one of the bank employees speaking on the phone
about him, which made him suspicious. As he left the bank he ran into his
brother Lorne, who asked him to take some saw blades to the office. Leeds
believed he was followed from the bank by a banker in a silver Mercedes or
pickup truck, causing him to drive through a hay field to get away. When he
reached the wrecking yard, he gave the saw blades to his father.
              Leeds had seen Majan and David Duboise, another employee,
"high fiving" one another and heard them telling two others about how they were
turning his father's business into a drug delivery business. He went into the back
office and closed the door. He overheard voices on the business's walkie-talkies
discussing how they were going to kill him. He believed that his father was
being pressured by the drug cartel and had agreed to kill him. Leeds took a gun
from the desk drawer. He also cut the power to the office in order to turn off the
surveillance cameras and eliminate the noise from the fans.
              While he was in the office, Leeds called a family law attorney,
Buddy Jaquith, who had worked extensively with his father and brother. Leeds
told Jaquith that four members of a Mexican drug cartel were coming into the
wrecking yard and were going to kill him. When Jacquith asked what made him
think that, Leeds said, "I don't know but the banker's also in on this." He
sounded panicky. Jacquith told him to call 9-1-1 if he thought someone was
going to harm him. Leeds asked Jaquith, "If I do something to . . . defend
myself, will you defend me?" Leeds also called Tony Stevens, a security guard
at Black Road Auto. Leeds told him there may be a shooting and asked him to
escort Majan from the premises.
              Because the electricity was out, Leeds's father went to the office.
Unable to open the door, he tried to kick it open. The door opened. Leeds
thought his father was brandishing a gun. He shot and killed him. When Leeds
ran out of the office, he told Joyce Bowley, a nearby customer, to "take care of

                                         4
my dad." He chased down, shot, and killed the remaining three victims:
customer Richard Leal, Duboise, and after reloading, Majan. As Leeds later
described it, "'I got a gun and went on them before they could do me in.'"
              The police found him running towards and starting to climb over a
fence. As they closed in, he hid behind a car crusher. When officers ordered
him to get down on the ground and put his hands to his sides, he complied.
During the initial interview, Detective Robert Morris felt that Leeds "was acting
obviously different" and asked if he needed medication. Detective Morris
contacted Dr. James Tahmisian, a clinical psychologist used by the police
department, to evaluate his sanity.
                                      Sanity Trial
                                Defense Evidence
              Leeds has the burden of proving legal insanity by a preponderance
of the evidence. (People v. Elmore (2014) 59 Cal.4th 121, 144-145.) He called
several mental health experts, including Dr. Tahmisian, clinical psychologists
Robert Owen and Jamie Rotnofsky, psychologist Jeffrey Davis, and forensic
psychiatrist and clinical professor William Reid. Each of them diagnosed Leeds
with paranoid schizophrenia and concluded that he was legally insane at the time
of the killings. The experts opined that Leeds's acts were caused by his delusions
and paranoid belief that the victims were part of a Mexican drug cartel and
planned to kill him. They ruled out other possible motivations for the killings,
such as animosity towards his father, antisocial personality disorder,
psychopathy, or illegal drug use. Their opinions were based on factors including
Leeds's well-documented history of delusions and hallucinations, his mother and
sister also being diagnosed with schizophrenia, his history showing he had a
strong moral sense and did not intentionally do anything wrong or hurt someone
without cause, his fearful and panicky demeanor just before the killings, and his
false belief that his father was brandishing a pistol when he kicked open the door
to the back office.

                                           5
              Lay witnesses testified to Leeds's behavior and demeanor. Both his
brother and stepmother described his relationship with his father as good.
Leeds's stepmother testified that he had a kind heart and she did not know of any
reason why he would kill his father and the others. In the months prior to the
shootings, she had become concerned about Leeds's worsening mental condition.
Stevens testified that Leeds sometimes would pause when greeted "because he
was fighting whatever he had that was wrong with him." Leeds would tell
Stevens that "bad voices" were telling him something that he did not want to do.
A bank teller, who had known him for five years and on most days would engage
him in normal conversation, thought he seemed agitated and preoccupied on the
day of the shootings. When she called him by name, he did not respond and
appeared to be mumbling to himself. Jaquith testified that when Leeds called
him, he sounded incoherent and delusional based on the tenor of his voice and
the frenzy with which he was speaking. Just before Leeds shot his father,
Bowley thought he looked sick, with a "far away look on his face like he was
going to pass out."
                               Prosecution Evidence
              The prosecution called two forensic psychologists, only one of
whom, Dr. Brandon Yakush, offered evidence on Leeds's sanity. Dr. Margaret
Hagen, author of Whores of the Court: The Fraud of Psychiatric Testimony and
the Rape of American Justice, opined that neither psychiatrists nor psychologists
were any better qualified than a lay person to assess a patient's mental state.
Moreover, because there were no objective means of scientifically confirming
any given patient's mental state, such an opinion would be valueless. She did not
interview Leeds and had no opinion whether he was schizophrenic or knew right
from wrong at the time of the killings.
              Dr. Yakush agreed with the defense experts that Leeds is a
paranoid schizophrenic. However, he found that Leeds's behavior was "at odds
with somebody who believed that they were morally justified in defending

                                          6
themselves with deadly force against the Mexican Mafia" and "more consistent
with somebody who decided to preemptively stop what he believed was going to
happen." For example, for more than two years Leeds did not mention that
members of the Mexican Mafia were after him when he spoke with Stevens, the
police, or anyone else other than Jaquith. He did not make a phone call to 9-1-1
but called other people with phone numbers that he likely had to look up. Before
the shootings, he did not attempt to hide even though there were many places to
do so. He turned off the video surveillance system. Immediately after the
shootings, instead of throwing down the gun and telling the police what had
happened, Leeds ran towards the perimeter of the yard, got rid of the gun, the
extra cartridges, and his outer clothing, and attempted to scale the fence. Other
than his father, the victims were running or facing away from him when they
were shot. Although Leeds reported that they had guns in their pockets, he did
not claim to have seen them point their guns at him. Dr. Yakush opined that
Leeds might have had multiple motives for the killings, such as his "serious
problems" with Majan becoming close to his father and arguments with his father
over money.
              Several lay witnesses testified for the prosecution. Aida Williams,
a family friend, thought that Leeds had a lot of animosity towards his father, who
on more than one occasion belittled him in front of others by commenting on his
lack of life accomplishments. Leeds's private investigator testified that Leeds felt
his father was "leaning a little towards Majan and believing him instead of
believing his son." Carol Robles, a bank teller who earlier had assisted Leeds on
the afternoon of the shootings, did not notice anything different about the way he
presented himself. Black Road Auto employees Cody Bunderson and Tristan
Gallant testified that while they were taking cover from the bullets, Leeds told
them, "you guys need to . . . leave the state, everything is going to hell and back."
              Customer Dan Silva saw Leeds shoot Leal, first from a distance of
20-30 feet as Leal was walking away and then three or four more times as Leeds

                                         7
stood over him. Leeds then shot Duboise as he was running away. Customer
Brenten Brown was talking with Majan, who was on an idling tractor with
nothing in his hands when Leeds shot him. Leeds said either, "Here you go" or
"Check this out," and then shot Majan five to seven times. Leeds attempted to
fire three more times after running out of ammunition.
                                   DISCUSSION
                      Instruction on Insanity and Self-Defense
               A person suffering from a delusion that causes him to fear that
another is attempting to take his life is legally insane if the facts perceived as the
product of his delusion would legally justify his acting in self defense. (People v.
Rittger (1960) 54 Cal.2d 720, 732, quoting M'Naghten's Case, (1843) 10 Clark &
Fin. 200, 211 [8 Eng.Rep. 718] [killer who "'labours under . . . partial delusion
. . . must be considered in the same situation as to responsibility as if the facts
with respect to which the delusion exists were real'"].) Here we are concerned
with whether Leeds understood whether his conduct was legally wrong: As a
consequence of his delusion, did Leeds believe that he was in imminent peril of
great bodily injury or death? "'For example, if under the influence of his
delusion [the defendant] supposes another man to be in the act of attempting to
take away his life, and he kills that man, as he supposes, in self-defence, he
would be exempt from punishment. If his delusion was that the deceased had
inflicted a serious injury to his character and fortune, and he killed him in
revenge for such supposed injury, he would be liable to punishment.'" (People v.
Rittger, at p. 732; see Finger v. State (Nev., 2001) 117 Nev. 548, 576 ["Persons
suffering from a delusion that someone is shooting at them, so they shot back in
self-defense are insane under M'Naghten. Persons who are paranoid and believe
that the victim is going to get them some time in the future, so they hunt down
the victim first, are not"].)
               Leeds contends that the trial court denied him due process and a
fair trial because it refused his requested instruction defining morality as used in

                                          8
the sanity instruction. Instead, the court instructed the jury on the law of self-
defense to illustrate society's generally accepted standards of right or wrong. He
argues that the trial court's modified instruction on insanity combined with the
self-defense instruction improperly led the jury to apply the law of self-defense
to his acts. The propriety of jury instructions is a legal question we review de
novo. (People v. Dowdell (2014) 227 Cal.App.4th 1388, 1418.)
              The trial court instructed the jury on the law of insanity using a
modified version of CALCRIM No. 3450, California's version of the M'Naghten
test. In relevant part, the trial court gave the standard instruction that "[t]he
defendant was legally insane if: [¶] 1. When he committed the crimes, he had a
mental disease or defect; [¶] AND [¶] 2. 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." Only the second prong of the test was at issue.2
              Defense counsel requested an additional instruction, derived from
the discussion in People v. Coddington (2000) 23 Cal.4th 529 (Coddington),3 that
"[t]he morality contemplated by the Penal Code is not simply the individual's
belief in what conduct is or is not good. While it need not reflect the principles
of a recognized religion and does not demand belief in a God or other supreme
being, it does require each of the following: [¶] 1. A sincerely held belief. [¶] 2.
Grounded in generally accepted ethical or moral principles. [¶] THAT IS [¶] 3.
Derived from an external source." Defense counsel argued that this instruction


2
  Defense counsel conceded to the jury that Leeds "understood the nature of his
act" and argued that whether he understood the quality of his act was "included
in the second [prong of the test] that he did not understand that it was morally or
legally wrong.
3
 Coddington was overruled on another ground in Price v. Superior Court (2001)
25 Cal.4th 1046, 1069 & fn. 13.

                                           9
was necessary because it was "the only statement of the law in terms of what is
required for morality under the [CALCRIM No. 3450] instruction."
              The trial court rejected the requested Coddington instruction. It
nonetheless expressed concern that "the jury needs some basis of making a
determination of what morally and legally wrong is." Over defense counsel's
objections, the trial court read a modified version of CALCRIM No. 505
instructing jurors that they must accept it as "a standard jury instruction for the
law of self defense."4 In the modified portion of CALCRIM No. 3450, the trial
court instructed the jury that "[t]he concept of morally and legally wrong refers
to society's generally accepted standards, and not to the subjective standards of
the defendant. [¶] You may consider any evidence defining self defense ONLY
to assist you in determining what may be society's generally accepted moral and




4
  The instruction was as follows:
        "The defendant is not guilty of murder if he was justified in killing
someone in self-defense. The defendant acted in lawful self-defense if:
        "1. The defendant reasonably believed that he was in imminent danger of
being killed or suffering great bodily injury;
        "2. The defendant reasonably believed that the immediate use of deadly
force was necessary to defend against that danger; [¶] AND [¶]
        "3. The defendant used no more force than was reasonably necessary to
defend against that danger.
        "Belief in future harm is not sufficient, no matter how great or how likely
the harm is believed to be. The defendant must have believed there was
imminent danger of death or great bodily injury to himself. Defendant's belief
must have been reasonable and he must have acted only because of that belief.
The defendant is only entitled to use that amount of force that a reasonable
person would believe is necessary in the same situation. If the defendant used
more force than was reasonable, the killing was not justified.
        "When deciding whether the defendant's beliefs were reasonable, consider
all the circumstances as they were known to and appeared to the defendant and
consider what a reasonable person in a similar situation with similar knowledge
would have believed. If the defendant's beliefs were reasonable, the danger does
not need to have actually existed."

                                         10
legal standards. You should not specifically apply the law of self defense to the
conduct of the defendant."
              The trial court erred. First, the entire discussion of moral wrong, as
distinguished from legal wrong, is misplaced. Whatever may be the standard for
knowing an act is morally compelled is of no moment. It is true that "a
defendant who is incapable of understanding that his act is morally wrong is not
criminally liable merely because he knows the act is unlawful." (People v.
Skinner (1985) 39 Cal.3d 765, 783.) Yet, "in most instances legal wrongfulness
and moral wrongfulness are equivalent." (People v. Stress (1988) 205
Cal.App.3d 1259, 1275.) As Justice Cardozo explained a century ago,
"'[k]nowledge that an act is forbidden by law will in most cases permit the
inference of knowledge that, according to the accepted standards of mankind, it
is also condemned as an offense against good morals. Obedience to the law is
itself a moral duty. If, however, there is an insane delusion that God has
appeared to the defendant and ordained the commission of a crime, we think it
cannot be said of the offender that he knows the act to be wrong.' (People v.
Schmidt (1915) 216 N.Y. 324, 338-340 . . . .)" (People v. Skinner, at pp. 783-
784, fn. omitted.) This is not such a case.
              Leeds's conduct was based on the legal doctrine of self-defense and
the jury was required to apply it to his perception of reality in order to evaluate
his sanity. The jury was instructed on self-defense but erroneously prohibited
from applying it. Without applying the facts as Leeds perceived them to the law
of self-defense, the jury would have no way of evaluating whether his paranoid
schizophrenia rendered him incapable of appreciating the wrongfulness of his
actions.
              Second, the court's error was compounded when it instructed the
jury that Leeds's conduct and belief must have been reasonable. It stated that
self-defense applies only if the defendant "reasonably believed that he was in
imminent danger of being killed," "reasonably believed that the immediate use of

                                         11
deadly force was necessary," and "used no more force than was reasonably
necessary." It further stated that Leeds's belief in imminent harm "must have
been reasonable" and that he was "only entitled to use that amount of force that a
reasonable person would believe is necessary in the same situation." The
unqualified emphasis on reasonableness in the context of an insanity defense
allowed the jury to conclude that Leeds's beliefs, based on his hallucinations and
delusions, were objectively unreasonable and did not allow him to assert he was
acting in self-defense.
              Accordingly, the jury here should have been instructed on self-
defense modified in the context of insanity: Leeds was legally insane if, because
of a mental disease or defect that he had when he committed the crimes, he
actually believed that he was in imminent danger of being killed or suffering
great bodily injury and that the immediate use of deadly force was necessary to
defend against the danger. (See CALCRIM No. 571; People v. Elmore, supra,
59 Cal.4th at p. 140 ["A claim of . . . self-defense based solely on delusion is
quintessentially a claim of insanity under the M'Naghten standard of inability to
distinguish right from wrong. Its rationale is that mental illness caused the
defendant to perceive an illusory threat, form an actual belief in the need to kill
in self-defense, and act on that belief without wrongful intent"].)
              The self-defense instruction did state that "[w]hen deciding
whether the defendant's beliefs were reasonable, consider all the circumstances
as they were known to and appeared to the defendant and consider what a
reasonable person in a similar situation with similar knowledge would have
believed. If the defendant's beliefs were reasonable, the danger does not need to
have actually existed." However, the phrase "the circumstances as they were
known to and appeared to the defendant" refers to the objective circumstances,
not the defendant's subjective perceptions based on delusions or hallucinations.
(See People v. Jefferson (2004) 119 Cal.App.4th 508, 519 ["The issue is not
whether defendant, or a person like him, had reasonable grounds for believing he

                                         12
was in danger. The issue is whether a 'reasonable person' in defendant's
situation, seeing and knowing the same facts, would be justified in believing he
was in imminent danger of bodily harm. [¶] By definition, a reasonable person
is not one who hears voices due to severe mental illness"].)
              The sanity verdicts turned on whether Leeds actually believed he
was defending himself from imminent peril, and thus could not appreciate the
wrongfulness of his actions, rather than on whether his belief was reasonable in
light of the objective circumstances. The trial court's instruction on self-defense,
with its emphasis on reasonableness, was error.
              The error was harmless, however, as to three of these decedents.
While Leeds claims he believed each conspired with the others to kill him, there
was no evidence that he perceived he was in imminent danger from Majan,
Duboise, or Leal, and considerable evidence that he knew he was not. After
shooting his father, he hunted down the other three victims, surprising them or
shooting them from behind. Before he started the rampage, he called Jaquith
from the safety of the back office and, by asking if Jaquith could defend him,
indicated that he was already planning to kill the perceived cartel members. This
was further evidenced by his call to Stevens in which he said there would be a
shooting. Leeds himself told Dr. Reid, "I got a gun and went on them before
they could do me in." Moreover, there was much additional evidence, such as
Leeds's disconnecting the video surveillance system before the shootings,
discarding his gun and outer clothing afterwards, and attempting to leave the
crime scene rather than seeking out the police, all of which indicated that he
knew his actions were wrongful.
              We cannot say the error was harmless regarding the killing of
Leeds's father because there was evidence that Leeds believed he shot him in
response to an imminent lethal threat. Despite reports that he had had isolated
fights with his father, several witnesses, including Leeds's stepmother and
brother, testified that the two generally had a good relationship. Leeds did not

                                         13
mention anything to Jaquith about fearing his father and, when Jaquith asked him
where his father was, Leeds did not know. Leeds thought his father had agreed
to kill him. When his father surprised him by kicking in the office door, Leeds
immediately shot him once, and later stated that he thought his father was
brandishing a gun. After shooting his father, Leeds asked a bystander to "take
care of" him. In contrast, he pursued the other three victims and shot them
multiple times. Even Dr. Yakush, the only expert to opine that Leeds was sane
during some of the killings, thought that it was much less clear whether Leeds
perceived imminent danger from his father and that he "may not have actually
wanted his father to die."
              The instructional error on self-defense was not harmless beyond a
reasonable doubt (Chapman v. California (1967) 386 U.S. 18, 24), and there was
a reasonable probability that without the error the jury would have found Leeds
insane at the time he killed his father (People v. Watson (1956) 46 Cal.2d 818,
836). Thus, the verdict of sanity on that count cannot stand.
     Testimony and Instruction on the Consequences of an Insanity Verdict
              Leeds contends that the trial court denied him due process and a
fair trial by allowing the jury to hear expert testimony and receive instruction on
the consequences of an insanity verdict. Regarding the expert testimony, he
challenges the trial court's rulings on his evidentiary objections and its denial of
his request for a mistrial. In addition, he claims that the trial court improperly
instructed the jury with CALCRIM No. 3450 without being requested to do so.
We review the trial court's rulings on Leeds's evidentiary objections and motion
for mistrial for an abuse of discretion. (People v. Boyce (2014) 59 Cal.4th 672,
687; People v. Lightsey (2012) 54 Cal.4th 668, 718.)
             Objections to Expert Testimony and Motion for Mistrial
              At trial, the prosecutor questioned the defense expert witnesses
regarding Leeds's preference to go to a state mental hospital rather than prison.
Dr. Rotnofsky testified that Leeds told her "that he might go to prison for the rest

                                         14
of his life or he might go to a state hospital." Over objection the prosecutor
asked, "Did he tell you that if he is found insane he goes to a state hospital for
some indeterminate period of time versus prison?" Dr. Rotnofsky testified that
Leeds made a statement to other doctors that he "could get out and be back on the
streets" if he went to a state hospital. She considered this statement in order to
evaluate "potential exaggeration or malingering."
              Leeds argues that the trial court erred in admitting Dr. Rotnofsky's
testimony that he had told other examining doctors he might one day be released
if he were found insane and sent to a mental hospital. The purpose of Dr.
Rotnofsky's testimony, like that of all the mental health experts, was to evaluate
whether Leeds knew right from wrong at the time of the killings. The major
factor in their analyses was whether and to what extent he was experiencing
hallucinations and delusions. In order to assess that factor, the experts needed to
determine his credibility when he reported having psychotic thoughts. Any
motive he had to lie or malinger was thus highly relevant. His understanding that
he might one day be released from a mental hospital but would never leave
prison was precisely this type of motive. Although the testimony was hearsay,
"[s]uch declarations and statements, when they constitute in part the basis upon
which the opinion of an expert is based, and are by [her] declared to be necessary
to enable [her] to form an opinion as to the nature of the [mental] disease, are
admissible." (People v. Shattuck (1895) 109 Cal. 673, 678-679.) Dr.
Rotnofsky's testimony was properly admitted. Thus, the motion for mistrial was
properly denied.
              Even if these evidentiary rulings had been erroneous, they did not
prejudice Leeds. At the end of the trial, the jury was instructed not to consider
the consequences of an insanity finding when reaching a verdict. Moreover, as
we have discussed, there is no evidence of Leeds's legal insanity at the time he
killed Leal, Duboise, and Majan, and much evidence to the contrary. There is


                                         15
not a reasonable probability that, but for the testimony regarding the
consequences of an insanity verdict, the result would have been different.
                         Propriety of CALCRIM No. 3450
              Leeds argues that the optional paragraph of CALCRIM No. 3450
on the consequences of an insanity verdict was misleading.5 Having requested
the instruction himself, however, he cannot complain about it now. "[A]n
instruction on the consequences of a [not guilty by reason of insanity] verdict
must be given whenever requested by the jury or defendant." (People v. Dennis
(1985) 169 Cal.App.3d 1135, 1140.) That he requested the instruction prior to
voir dire is irrelevant. Requests for jury instructions need only be made "before
commencement of argument." (§ 1093.5.) The parties were discussing a "final
version" of the insanity instruction, and Leeds never subsequently informed the
trial court that he had a change of heart. "'When a defense attorney makes a
"conscious, deliberate tactical choice" to [request or] forego a particular
instruction, the invited error doctrine bars an argument on appeal that the
instruction was [given or] omitted in error.' [Citations.]" (People v. McKinnon
(2011) 52 Cal.4th 610, 675.)




5
  The relevant paragraph of CALCRIM No. 3450 provides as follows: "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 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."

                                         16
              Elimination of Questions from the Jury Questionnaires
              Leeds contends that the trial court denied him due process and a
fair trial when, over his objections, it eliminated questions from the juror
questionnaires after they revealed too much bias among the jury pool. We
review the trial court's procedure for questioning prospective jurors for abuse of
discretion and will not reverse absent a miscarriage of justice. (Code Civ. Proc.,
§ 223; People v. Tafoya (2007) 42 Cal.4th 147, 168.) "Discretion is abused when
the questioning is not reasonably sufficient to test prospective jurors for bias or
partiality." (People v. Tafoya, supra, at p. 168.)
              During jury selection, the first panel of prospective jurors
completed a 20-page juror questionnaire containing 57 questions. Based on the
responses to the questionnaire, defense counsel challenged "quite a few"
prospective jurors for cause.6 In the end, the trial court dismissed the entire
panel. Notwithstanding defense counsel's "encourag[ing] the court to maintain
the current questionnaire," the court subsequently used a generic, 5-page
questionnaire containing 11 questions, none of which pertained to the
prospective jurors' knowledge of or feelings about case-specific issues.
              Leeds argues that "the trial court's decision to change the selection
process to eliminate the candid expression of the potential jurors' views
constituted an abuse of discretion rising to a violation of due process." "'"The
Constitution . . . does not dictate a catechism for voir dire, but only that the
defendant be afforded an impartial jury."' [Citation.] '[T]he trial court is given
wide latitude to determine how best to conduct the voir dire . . . .' [Citation.]

6
  The original questionnaire asked several broad, open-ended questions such as
"What is your opinion of psychologists and psychiatrists in general?" and "Do
you have any strong beliefs about the use of forensic psychiatry in criminal
cases? . . . If so, please describe." Several prospective jurors responded with
comments reflecting bias, such as, "I wouldn't want the accused to come after me
if he was released" and "[I] wouldn't believe anything that a psychiatrist would
say. . . . [Leeds] killed four people and he should do the time."

                                          17
Whether the prospective jurors are required to complete a written questionnaire
is a matter within the trial court's discretion. [Citation.]" (People v. Tafoya,
supra, 42 Cal.4th at p. 168.)
               Here, the trial court concluded that the original questionnaire was
impractical because it forced prospective jurors to respond to legal issues on
which they had not yet been instructed and its numerous open-ended questions
encouraged jurors to lie to get out of jury duty. This was not an abuse of
discretion. The attorneys were given great latitude in orally questioning
prospective jurors so that they could inquire about any of the information that the
original questionnaire was intended to elicit. In addition, the attorneys were
permitted to question prospective jurors in chambers if there were issues they did
not feel comfortable discussing in the courtroom. Leeds identifies no instance
where defense counsel's opportunity to examine a prospective juror was
inadequate.
               The cases upon which he relies, Skilling v. United States (2010)
561 U.S. 358 and Irvin v. Dowd (1961) 366 U.S. 717, do not help him. In
Skilling, the defendant argued that "the voir dire [was] insufficient because . . .
jury selection lasted 'just five hours,' [and] '[m]ost of the court's questions were
conclusory[,] high-level, and failed adequately to probe jurors' true feelings."
(Skilling, supra, at p. 387.) Emphasizing that "[j]ury selection . . . is 'particularly
within the province of the trial judge,'" the Court rejected Skilling's challenge on
the ground that the trial court had "initially screened venire members by eliciting
their responses to a comprehensive questionnaire" that he had "drafted in large
part." (Id., at pp. 386, 388.) In Skilling, as here, the overall process was fair.
The only difference was its sequence: here, the trial court provided a short jury
questionnaire and later allowed comprehensive questioning; in Skilling, the trial
court provided a comprehensive questionnaire and subsequent questioning was
relatively brief.


                                          18
               Irvin, which involved the trial court's denial of a motion to change
venue in the face of strong local prejudice against the defendant, is inapposite.
Leeds did not move to change venue and does not now claim that a fair trial in
Santa Maria would have been impossible. He merely contends that the process
used to select the jury was inadequate. As we have explained, that contention
lacks merit.
                                 Cumulative Error
               Leeds also contends that cumulative error warrants reversal. As we
have identified only one error, there is nothing to cumulate. (See People v.
Myles (2012) 53 Cal.4th 1181, 1225.)
                                   DISPOSITION
               The judgment is reversed in part and this matter is remanded for a
new sanity trial regarding the killing of Leeds's father. In all other respects, the
judgment is affirmed.
               CERTIFIED FOR PUBLICATION.




                                           PERREN, J.


We concur:


               GILBERT, P. J.



               YEGAN, J.




                                         19
                              Edward H. Bullard, Judge

                       Superior Court County of Santa Barbara
                        ______________________________


             Jean Matulis, under appointment by the Court of Appeal, for Defendant and
Appellant.
             Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Shawn McGahey Webb, Supervising Deputy Attorney General, Gary
A. Lieberman, Deputy Attorney General, for Plaintiff and Respondent.
