Filed 12/29/15 P. v. Whittaker CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,                                       A141932

v.                                                                       (City & County of San Francisco
DWAYNE WHITTAKER,                                                        Super. Ct. Nos. SCN215200,
                                                                         SCN221056)
         Defendant and Appellant.


         A jury convicted defendant Dwayne Whittaker of multiple crimes committed
against four separate victims: attempted residential robbery (Pen. Code, §§ 211, 664),1
two counts of residential burglary committed while a person was home (§§ 459, 667.5,
subd. (c)(21)), two counts of assault by means of force likely to cause great bodily injury
(§ 245, subd. (a)(1)), inflicting injury on an elder with force likely to cause great bodily
injury with personal infliction of great bodily injury (§§ 368, subd. (b)(1), 12022.7,
subd. (c)), and possession of stolen property (§ 496, subd. (a)). The court found that
defendant has three prior robbery convictions. The court sentenced him to five
consecutive indeterminate life terms under the Three Strikes law (§§ 667, subd. (e)(2),
1170.12, subd. (c)(2)) and additional enhancements, with the court expressing its
intention that “defendant shall serve a sentence of life in prison with an indeterminate
term of 190 years minimum custody plus a determinate term of 249 years.”



1
    All further section references are to the Penal Code except as noted.


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       Defendant appeals and asserts three claims: (1) the trial court abused its discretion
in denying his motion to continue the trial; (2) the trial court erred in directing a verdict
on his plea of not guilty by reason of insanity; and (3) his sentence of consecutive life
terms is unconstitutional. We shall affirm the judgment.
                                 Trial Court Proceedings2
       Defendant was arrested in August 2008 and charged with robbery and assault. The
public defender appointed to represent defendant declared a doubt as to defendant’s
competency, and the court suspended criminal proceedings and ordered psychiatric
assessments. Two psychiatrists concluded that defendant was incompetent to stand trial
due to possible schizophrenia but expressed doubt as to whether defendant was feigning
mental illness in whole or in part. In January 2009, the court found defendant not
competent to stand trial and committed him to Napa State Hospital for treatment.
       In September 2011, the medical director of Napa State Hospital certified that
defendant was ready to stand trial. A psychiatrist at the hospital prepared an extensive
report in which he concluded that defendant does not suffer from schizophrenia and
attributed defendant’s prior reports of hallucinations to drug-induced psychosis. The
psychiatrist also concluded that defendant “malingered psychotic symptoms as opposed
to have genuinely experienced them.” A contested competency hearing was held in
March 2013 after multiple continuances, many of which were at defense counsel’s
request. In April 2013, the court ruled defendant competent and reinstated criminal
proceedings.
       Indictments had been filed on most charges but some charges were made in a
felony complaint. A preliminary hearing on those charges was held in October 2013 and
defendant pled not guilty to all charges at his arraignment later that month. A
consolidated amended information was filed in January 2014.



2
  We focus on procedural matters. Defendant does not contest the sufficiency of the
evidence to support the jury’s verdict and, thus, we need not summarize the extensive
trial evidence presented in support of the verdict.


                                               2
       Trial proceedings began on February 3, 2014, with the consideration of various
motions. Jury selection was set for February 5. On that day, defendant asked to change
his plea of not guilty to add an alternate plea of not guilty by reason of insanity. The court
granted the request and jury selection began with a review of requests to be excused from
jury service due to hardship.
       On February 6, 2014, defendant moved to continue the trial. Defense counsel said
he was “surprised” by defendant’s decision to plead insanity and needed additional time
to prepare the defense. Counsel stated he would have requested use of a juror
questionnaire had he known there would be a sanity phase of trial. While acknowledging
that he had reviewed “a number” of defendant’s medical records, counsel said he needed
time to compile mental health records, retain experts, and interview lay witnesses.
Counsel asked to continue the trial in its entirety because he “would be tailoring the guilt
phase so that it dovetailed with [his] theory and strategy of the insanity phase.” The
prosecution opposed continuance, arguing, among other things, that a continuance would
burden witnesses, many elderly, who had waited over five years for resolution of the
charges.
       The court denied the motion. The court found that “[n]othing has changed in
regard to the guilt or innocence phase of trial” to warrant delaying the entire trial. The
case was being tried in phases and the sanity phase of trial would not begin for a month
or more, after the guilt phase and a long recess, thus allowing sufficient time for
preparation. The court also noted that defense counsel was familiar with defendant’s
mental health history, as he had represented defendant at the March 2013 competency
hearing, and already had in his possession evidence relevant to an insanity defense. The
court pointed out that defense counsel had investigators and other attorneys in the public
defender’s office who could assist with preparation of an insanity defense while the guilt
phase proceeded, and that there would be time during the long recess between trial phases
when counsel could turn his entire attention to the insanity defense. The court offered to
accommodate counsel’s wish for a juror questionnaire, finding sufficient time to utilize a
questionnaire as voir dire had not yet started.


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       A juror questionnaire addressing mental health issues was prepared and submitted
to prospective jurors. The prosecutor and defense counsel were given three days over a
weekend to review the responses to the questionnaire before voir dire began on Monday,
February 10, 2015. Jury selection was completed on February 13 and the presentation of
evidence in the guilt phase of trial began that afternoon. Jury deliberations began on
February 26 and concluded the following day, February 27. The jury found defendant
guilty of seven of the 11 counts alleged. The court recessed the proceedings for three
weeks, until March 24, when the sanity phase of trial was set to begin.
       Prior to the start of the sanity phase of trial, two psychiatrists appointed to evaluate
defendant submitted reports concluding that defendant was not legally insane at the time
of the crimes. One expert opined that defendant “in all likelihood has been malingering”
and, even if defendant had a genuine mental disorder, he possessed the ability to
understand the nature of his acts and to know right from wrong. The other expert “saw no
genuine signs of psychosis,” observed defendant feign hallucinations, and concluded that
defendant was manufacturing or, at the least, exaggerating symptoms of mental illness.
The psychiatrist reported: “I believe that [defendant] has become the proverbial child
who cries wolf. I just don’t believe him.”
       Defense counsel informed the court he had no evidence to offer in support of the
insanity plea but that defendant would not agree to withdraw his plea. The sanity phase of
trial commenced and defense counsel stated he had no opening statement or evidence to
present. The trial court directed verdict against defendant and dismissed the insanity plea.
                                         Discussion
       As noted above, defendant makes three claims on appeal: (1) the trial court abused
its discretion in denying his motion to continue the trial thereby depriving him of due
process, effective assistance of counsel, and the ability to present a defense; (2) the trial
court denied his due process and jury trial rights by directing a verdict at the sanity phase
of trial because only a jury is empowered to rule on the factual issue of sanity; and (3) his
sentence of consecutive life terms is cruel and unusual punishment and violates due
process.


                                               4
1. Denial of motion to continue the trial.

       A continuance in a criminal case may be granted only for good cause. (§ 1050,
subd. (e).) “Whether good cause exists is a question for the trial court’s discretion.
[Citation.] The court must consider ‘ “ ‘not only the benefit which the moving party
anticipates but also the likelihood that such benefit will result, the burden on other
witnesses, jurors and the court and, above all, whether substantial justice will be
accomplished or defeated by a granting of the motion.’ ” ’ [Citation.] While a showing of
good cause requires that both counsel and the defendant demonstrate they have prepared
for trial with due diligence [citation], the trial court may not exercise its discretion ‘so as
to deprive the defendant or his attorney of a reasonable opportunity to prepare.’
[Citation.] [¶] A reviewing court considers the circumstances of each case and the reasons
presented for the request to determine whether a trial court’s denial of a continuance was
so arbitrary as to deny due process. [Citation.] Absent a showing of an abuse of discretion
and prejudice, the trial court’s denial does not warrant reversal.” (People v. Doolin (2009)
45 Cal.4th 390, 450.)
       The trial court reasonably found there was no good cause to further delay trial
under the circumstances presented here. As the court rightly observed, “[n]othing
changed in regard to the guilt or innocence phase of this trial” by the late addition of an
insanity plea. Jury selection was the only matter potentially impacted because the same
jury would decide, in separate phases of trial, both guilt and sanity. The court addressed
defense counsel’s concern in this regard by granting counsel’s request for a juror
questionnaire on mental health issues and allowing sufficient time to review the
completed questionnaires before voir dire commenced. The change of plea did, of course,
place additional demands on defense counsel. But the trial court reasonably found that the
insanity defense could be prepared during the guilt phase of trial and the three-week
recess between the guilt and sanity phases of trial. Defense counsel was familiar with
defendant’s mental health history as he had represented defendant at a competency
hearing months earlier. Competency and legal insanity present distinct issues but both are



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based on defendant’s mental state and psychiatric evidence. Defense counsel was not
“starting from scratch,” as the prosecutor rightly noted. Counsel had in his possession
extensive mental health records and psychiatric reports relevant to an insanity defense.
The trial court acted reasonably in denying the continuance in favor of a bifurcated trial
schedule that allotted time in between trial phases for preparation of the defense.

2. Directed verdict on the insanity plea.

       A defendant may claim legal insanity as an affirmative defense to a criminal
charge. (People v. Hernandez (2000) 22 Cal.4th 512, 522; § 25, subd. (b).) “It is
fundamental to our system of jurisprudence that a person cannot be convicted for acts
performed while insane.” (People v. Kelly (1973) 10 Cal.3d 565, 574.) When, as here, a
defendant enters a plea of not guilty by reason of insanity and joins with it a plea of not
guilty, he or she must be tried first as to guilt; only if the defendant is found guilty does
the sanity phase of the trial begin. (§ 1026, subd. (a).) In the sanity phase, the defendant
bears the burden of proof by a preponderance of the evidence. (Hernandez, supra, at
p. 521; § 25, subd. (b); Evid. Code, § 522.)
       At the start of the sanity phase of trial, defense counsel said he would not make an
opening statement and had no evidence to present. Defendant contends that in directing a
verdict and dismissing the insanity plea, the trial court denied his due process and jury
trial rights because only the jury is empowered to rule on the factual issue of his sanity.
The Attorney General argues, as a preliminary matter, that defendant has forfeited the
issues by failing to raise them in the trial court, citing People v. Stowell (2003) 31 Cal.4th
1107, 1114 and People v. Garceau (1993) 6 Cal.4th 140, 173. We do not need to resolve
this issue because in all events defendant’s contentions lack merit.
       Established law recognizes a trial court’s discretionary authority to direct a verdict
against a defendant in the trial of an insanity defense. People v. Ceja (2003) 106
Cal.App.4th 1071, 1085-1089, held that trial courts have the inherent power to remove an
insanity defense from the jury when there is no evidence to support it and found no
constitutional infirmity in the court doing so. In reaching this conclusion, the Ceja court


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noted that “a plea of not guilty by reason of insanity is a ‘special plea’ with the burden of
proof resting on the defendant.” (Id. at p. 1085.) Because the plea does not involve the
defendant’s guilt of the underlying crimes, the defendant has no presumption of
innocence to aid him and therefore must prove the defense. (Id. at pp. 1085-1086.) If the
defendant fails to offer sufficient evidence to do so, the court may remove the issue of
sanity from the jury. (Id. at p. 1089.) Numerous state and federal cases are in accord.
(People v. Blakely (2014) 230 Cal.App.4th 771, 775; People v. Severance (2006) 138
Cal.App.4th 305, 314-318; Singleton v. Ayers (C.D. Cal. Oct. 20, 2011, No. CV 06-3877
SJO(JC).) 2011 U.S. Dist. Lexis 145793, pp. **58-69; Severance v. Evans (E.D. Cal.
June 17, 2009, No. CIV S-06-1964 FCD KJM P) 2009 U.S. Dist. Lexis 50944, pp. **14-
23.)
       Defendant claims these cases were wrongly decided. He argues that the cases are
based on the flawed premise that a trial court may direct a sanity verdict because the
defendant has the burden of proof on that affirmative defense. He argues that the
assignment of the burden of proof has nothing to do with the core issue of who
determines the factual issue of sanity. Defendant asserts that the issue of sanity must
always be determined by the jury because section 25, subdivision (b) and section 1026,
subdivision (a) assign that factual question to the jury and no statute authorizes a trial
court to direct sanity verdicts.
       These same claims have been considered by other courts and rejected. (E.g.,
People v. Severance, supra, 138 Cal.App.4th at p. 316; Severance v. Evans, supra, 2009
U.S. Dist. Lexis 50944, pp. **16-21.) The statutes cited by defendant provide generally
that the issue of sanity shall be tried before a jury but do “not purport to require the issue
of sanity to be submitted to a jury under all circumstances, even when the defendant has
not offered substantial evidence of insanity” (Severance v. Evans, supra, at p. *21) or, as
here, no evidence whatsoever. “Like any issue that is usually treated as one of fact, the
issue of a defendant’s sanity can become one of law in the proper circumstances.”
(People v. Severance, supra, at p. 316.) We follow established precedent in concluding
that the trial court did not violate defendant’s due process and jury trial rights by


                                               7
directing a verdict on the sanity issue. It is also clear that any error in directing the verdict
is without prejudice as the jury could have made no other finding given the total absence
of evidence. There is also no basis to find that counsel was ineffective in failing to offer
evidence, as no evidence of legal insanity appears in the record. The psychiatric reports
are consistent in concluding that defendant was not legally insane at the time of the
crimes.

3. Sentencing.

       Defendant maintains that his sentence violates the constitutional prohibition
against cruel and unusual punishment and denies substantive due process. (U.S. Const.,
8th & 14 Amends.) The Eighth Amendment bars punishment that is excessive in relation
to the crime committed. (Coker v. Georgia (1977) 433 U.S. 584, 592.) “[A] punishment
is ‘excessive’ and unconstitutional if it (1) makes no measurable contribution to
acceptable goals of punishment and hence is nothing more than the purposeless and
needless imposition of pain and suffering; or (2) is grossly out of proportion to the
severity of the crime.” (Ibid.) Defendant rests his argument on the first element. He relies
upon a concurring opinion to argue that any sentence in excess of life imprisonment is
irrational and serves no legitimate purpose; “a sentence that no human being could
conceivably complete serves no rational legislative purpose under either a retributive or a
utilitarian theory of punishment.” (People v. Deloza (1998) 18 Cal.4th 585, 601 (conc.
opn. of Mosk, J.) [criticizing “multicentury sentences”].)
       However much we may agree with the views of Justice Mosk, a concurring
opinion has “no controlling weight” or precedential value. (People v. Ceballos (1974) 12
Cal.3d 470, 483.) Instead, weight must be given to the many cases holding that sentences
exceeding human life expectancy do not constitute cruel and unusual punishment. (See,
e.g., People v. Byrd (2001) 89 Cal.App.4th 1373, 1382 [115 years plus 444 years to life];
People v. Cartwright (1995) 39 Cal.App.4th 1123, 1134-1137 [375 years to life plus 53
years]; People v. Wallace (1993) 14 Cal.App.4th 651, 666-667 [283 years eight months
sentence]; People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 532 [129 years].) In Byrd,


                                               8
the court stated: “In our view, it is immaterial that defendant cannot serve his sentence
during his lifetime. In practical effect, he is in no different position than a defendant who
has received a sentence of life without possibility of parole: he will be in prison all his
life.” (Byrd, supra, 89 Cal.App.4th at p. 1383.) “[I]mposition of a sentence of life without
possibility of parole in an appropriate case does not constitute cruel or unusual
punishment under either our state Constitution [citation] or the federal Constitution.”
(Ibid.) Byrd discerned a legitimate purpose for a sentence in excess of a human life span.
A long sentence of this nature “serves valid penological purposes: it unmistakably
reflects society’s condemnation of defendant’s conduct and it provides a strong
psychological deterrent to those who would consider engaging in that sort of conduct in
the future.” (Ibid.) Defendant’s sentence violates neither the state nor federal ban on cruel
and unusual punishment, nor denies due process.
                                         Disposition
       The judgment is affirmed.

                                                   _________________________
                                                   Pollak, J.


We concur:


_________________________
McGuiness, P. J.


_________________________
Siggins, J.




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