Filed 6/10/16 P. v. Carter CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,                                                          B259905

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. TA112779)
         v.

JULIAN CARTER,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, John T.
Doyle, Judge. Reversed in part, affirmed in part.
         Brett Harding Duxbury, under appointment by the Court of Appeal, for
Defendant and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell and Eric E.
Reynolds, Deputy Attorneys General, for Plaintiff and Respondent.
                                             _________________________
        Defendant and appellant Julian Carter appeals from the judgment entered
following a jury trial that resulted in his conviction for second degree murder. Carter
contends the trial court committed prejudicial instructional error during the sanity portion
of the trial.1 We agree, and therefore reverse the jury’s sanity finding.
                    FACTUAL AND PROCEDURAL BACKGROUND
        1. Carter’s conviction for murdering Mireya
        Carter lived with his mother, Debra Carter, his sister, Tina Carter, and his five-
year-old niece, Mireya.2 Kristal and Luther “L.C.” Carter are his siblings, and Kyle
Blaylock is his cousin. Between approximately 2:00 a.m. and 6:00 a.m. on June 13,
2010, Carter killed Mireya by cutting her throat with a serrated knife.
        Carter was charged with murder, but was found incompetent to stand trial.
Proceedings were suspended and he was treated at Patton State Hospital.
        In February 2013, Carter’s competency was deemed restored. He pleaded not
guilty by reason of insanity. A jury found him guilty of murder (Pen. Code, § 187,
subd. (a))3 with the use of a deadly weapon. (§ 12022, subd. (b)(1).) It deadlocked on
the degree of the offense, and the trial court designated the crime as second degree
murder.4 The jury also deadlocked on the question of Carter’s sanity, with eight jurors
voting for a finding of insanity. The trial court declared a mistrial as to the sanity portion
of the trial.
        2. Second sanity trial
        A second sanity trial commenced in June 2014, at which the following evidence
was adduced.

1
        Carter also argues that he is entitled to one additional day of presentence custody
credit. Given our conclusion that reversal is required, this contention is moot.
2
       For ease of reference, and with no disrespect, we refer to defendant as “Carter”
and to his family members by their first names.
3
        All further undesignated statutory references are to the Penal Code.
4
        The validity of the jury’s verdict at the guilt phase is not challenged on appeal.


                                               2
      a. Carter’s mental health and behavior prior to the murder
      Carter was at some point committed to the California Youth Authority for
committing an armed robbery. He was released and returned to the Youth Authority on
probation violations one or more times. While committed to the Youth Authority, Carter
displayed indications of psychotic behavior, including exhibiting paranoia, making
nonsensical statements, and responding to internal stimuli.
      Carter had three psychiatric hospitalizations during the year preceding the murder.
According to Debra and Kristal, Carter’s behavior changed after he returned home from
the Youth Authority. Among other things, he had an aversion to being touched.
Concerned, Debra and Kristal attempted to obtain mental health assistance for him. In
August 2009, they drove Carter to Harbor-UCLA Medical Center, but he refused to exit
the car and the hospital was unable to admit him without his consent. On the drive home
he attempted to jump from the car and bit both women when they tried to restrain him.
Police officers transported him back to the hospital, where he was admitted. After
approximately three weeks, he was released with a 10-day supply of medication.
      During the months preceding the murder, Carter acted in a bizarre fashion. One
morning Debra saw him dancing in the middle of the street at 2:00 a.m. On another
occasion she saw him dancing in the street in the rain. A “couple weeks” before the
murder, he climbed out his bedroom window and walked back into the house through the
front door, repeating this cycle approximately 18 times. Debra chained the window shut.
He also talked to himself occasionally. On other occasions, he would laugh
inappropriately and for no reason. At some point after his return from the Youth
Authority, he began taking baths in oatmeal, remaining in the tub for hours at a time. He
stated on at least one occasion that he was “trying to wash away the demons.” Once,
when Kristal coaxed him out of the bath, he walked around naked, covered in wet oats.
He took such an oatmeal bath within the week before the killing.
      The day before the murder, June 12, 2010, Carter was acting “fairly normal.” That
evening, he left with Luther. When he returned home at approximately 10:00 p.m. or
11:00 p.m., he was incoherent and “tripping.” At some point during the day or evening,

                                            3
he did not recognize Blaylock. Blaylock conceded that it was possible Carter was under
the influence of alcohol or drugs. According to Debra, Carter was loud and cursed at her,
behavior that was out of character for him. Carter stated that his brother Luther was
actually his son.5 When Debra called Luther so Carter could speak to him, Carter insisted
the person on the phone was not Luther. Carter exited the house through the back door
and reentered through the front door several times. Carter then entered the bathroom,
where he remained for several hours, taking an oatmeal bath. Later, he stood at the
doorway of the living room and stared at Tina and Mireya. According to Debra, Carter’s
eyes did not look “normal.”
        b. The murder and investigation
        Debra, Tina, and Mireya fell asleep in the living room. At approximately
2:00 a.m., Carter came into the room and appeared to take a photograph of Tina and
Mireya with a cellular telephone.6 Debra asked what he was doing, but Carter left the
room.
        When Debra and Tina awoke the next morning at approximately 6:30 a.m., they
discovered Mireya was missing. Carter was not in his bedroom either. Blaylock had
seen Carter as he left the house that morning; Carter had not looked like himself and
appeared angry and frustrated. Blaylock went outside to look for Mireya and caught up
with Carter approximately a block from the house. When Blaylock told Carter that
Mireya was missing, Carter did not respond. Blaylock suggested that he and appellant
“ ‘go back’ ” to the house. Carter began to walk toward the house but then turned and
walked in the opposite direction. Meanwhile, Debra and a neighbor drove around the
neighborhood in the neighbor’s pickup truck looking for Mireya. They located Carter a
few blocks away. He was headed in the direction of a Metro station. Debra asked where
Mireya was, and Carter replied that she was “ ‘[a]t home.’ ” Carter followed Debra’s

5
        Carter does not have children.
6
       No such photograph was discovered during a subsequent search of Carter’s and
other family members’ cellular telephones.


                                            4
request that he get in the bed of the truck. Several police vehicles were around the house,
and the area was roped off. When the truck stopped near the house, Carter exited and
walked away. Someone brought him back to the house.
       A deputy sheriff found Mireya’s body in Carter’s closet, stuffed in a trash bag.
Carter had killed her by sawing her neck with a serrated kitchen knife. There were
several wounds to her neck, one fatal. After placing Mireya’s body in the bag in the
closet, Carter wrapped the knife in several shirts and a child’s jacket and hid the bundle
inside a drawer underneath his bed. Carter then changed his shirt and walked out of the
house. Unused condoms were strewn about the room, but there was no evidence of any
sexual contact between Carter and Mireya.
       Detectives Kevin Lowe and Ralph Hernandez interviewed Carter at the sheriff’s
station. Carter admitted killing Mireya. When asked why, he stated “Psychological,
that’s, uh, I mean, that’s basically it.” He was talking with Mireya after he “tried . . .
some little B.S.” He did “not really” intend the killing; it “just happened.” There was “a
lot of stuff . . . going off periodically.” He informed Hernandez that the knife was in the
bedroom. While being handcuffed during the booking process, Carter broke free and ran
towards a stairwell, but his progress was blocked by the detectives. Hernandez did not
observe evidence that Carter was intoxicated or on drugs, and no drug test was done.
       According to Debra, when Carter was “normal,” he treated Mireya like she was
his own daughter; he “loved that little girl.” Kristal testified that Carter and Mireya
“loved each other.” Carter never hit or argued with Mireya, and never behaved toward
her in an inappropriate or unusual way. Blaylock testified that when Carter was “normal”
he did “everything for” Mireya and never mistreated her.
       According to Debra, no medication was available for Carter to take during the
period preceding the murder.
       c. Expert and medical testimony
       (i) Patton State Hospital
       As noted, after his arrest Carter was treated at Patton State Hospital. Dr. Ron Foo,
Carter’s treating physician, testified that he diagnosed Carter with schizophrenia.

                                               5
Schizophrenia is a disorder that must be treated with medication if there is any hope for
success. Carter did not initially respond well to the medication given. Foo changed his
medications to a new drug, which resulted in “fairly noticeable improvement.”
       Patton records indicated when Carter arrived at the hospital he was considered to
be psychotic as a result of bizarre and disorganized behaviors, including grandiose
delusions and response to internal stimuli. Although HIV positive, he refused to take
medication for his HIV.
       (ii) Expert testimony
       Four experts opined regarding Carter’s sanity. Dr. Raphael Morris, a psychiatrist,
and Dr. Jack Rothberg, a forensic psychiatrist, testified for the defense. Forensic
psychologist Haig Kojian testified for the People, as did forensic psychiatrist Dr. Gordon
Plotkin, who had been appointed by the court. The People’s experts opined that Carter
was not legally insane; the defense experts testified to the contrary.
       All four experts agreed that Carter suffered from a major mental disorder. Kojian
and Morris opined that Carter suffered from Schizoaffective Disorder, Bipolar type.
Plotkin opined Carter suffered from a major mental disorder, “probably on the lines of
schizophrenia.” Rothberg concluded Carter was “severely mentally ill.”
       All four also agreed that Carter knew and understood the quality of his actions
when he killed Mireya: he knew Mireya was his niece and he knew he used a kitchen
knife to cut her throat. Carter never claimed he thought Mireya was, for example, a
demon or an inanimate object. The experts disagreed, however, about whether Carter
knew the wrongfulness of his actions.
       Dr. Kojian
       Based in part on Carter’s statements, Kojian concluded Carter knew his actions
were legally or morally wrong. Carter had attempted to hide Mireya’s body and the
murder weapon, left the house, and attempted to flee from apprehension, all of which
suggested consciousness of guilt. Carter would have had no reason to flee or hide
evidence if he believed he had done nothing wrong. Carter’s statement to detectives that



                                              6
he killed Mireya for “psychological” reasons potentially showed he was making an
excuse, which also demonstrated knowledge of the wrongfulness of his conduct.
       Dr. Plotkin
       Dr. Plotkin likewise opined that Carter knew the murder was wrongful because his
actions demonstrated consciousness of guilt. Plotkin based his opinion on Carter’s
statements to him that he argued with his sister and mother the day before the murder
regarding whether there was something wrong with his brother; he was angry at his sister
and mother; woke up angry; and decided to commit the killing. Neither Carter’s
statements nor any other evidence suggested an alternative explanation for his actions,
such as that he believed Mireya was a demon. There was “no delusion involved.” No
other psychotic mood or psychiatric symptoms existed that would have interfered with
his ability to know his behavior was wrong. Plotkin questioned whether Carter actually
suffered from auditory hallucinations; opined that Carter’s symptoms and actions on the
night of the murder may have been related to his use of marijuana and methamphetamine
rather than mental illness; and opined that some of Carter’s actions while incarcerated or
at Patton, such as drinking toilet water and smearing feces on the walls, were
manipulative.
       Dr. Morris
       Dr. Morris opined that Carter did not know the wrongfulness of his actions at the
time of the murder and was therefore insane within the meaning of M’Naghten.7 Many of
Carter’s actions made no sense and could only be explained by his schizoaffective
disorder. Carter had displayed paranoid and grandiose delusions, mutism, catatonia,
response to internal stimuli, agitation, and hallucinations. Morris doubted that Carter’s
schizophrenia was drug induced, although he could not rule it out completely. He did not
see evidence of malingering.
       Carter was an “extremely poor historian” and had difficulty thinking; he also had a
very limited ability to articulate the details of the crime, a circumstance possibly related

7
       M’Naghten’s Case (1843) 8 Eng.Rep. 718.


                                              7
to the fact his schizophrenia had been untreated for years. Morris disagreed with the
conclusion Carter’s behavior after the murder indicated he knew his actions were
wrongful. Carter’s actions were consistent with his primitive, concrete way of thinking
and were too limited to demonstrate knowledge of wrongfulness. He had placed the
knife and Mireya’s body where they were sure to be found; did not travel far from his
home; and told his mother Mireya was at home.
       Carter’s behavior in jail, his actions with his family, and his disorganized behavior
demonstrated “he’s not someone who’s able to make rational decisions and understand
what he’s doing exactly.” The “driving force here is the untreated mental illness and the
deteriorating course, delusions, disorganization, irritability, insomnia. All these
symptoms. His misinterpretation of the behaviors of his family, his hostility towards
them, and all these things were in play at the time of this tragedy.” Morris explained he
was confident in his conclusions: “I’ve seen him in the serial interviews. So he’s been
still psychotic, still has symptoms at times when off medication. I’ve seen him [floridly]
psychotic and out of control. . . . From putting it all together and taking all the evidence
into consideration, it seems that he was in that state, untreated psychotic state before the
death. [¶] So I’ve seen what he looks like when he’s untreated and that’s why I have this
opinion.”
       Dr. Rothberg
       Dr. Rothberg concluded Carter was insane. He did not believe Carter understood
the wrongfulness of his actions. Rothberg explained, “It’s well established that he is
severely mentally ill. He demonstrated this for quite some time prior to the incident with
multiple psychiatric hospitalizations in advance of the incident with clear psychotic
symptoms.” There was evidence Carter was highly delusional, paranoid, responding to
voices, mute, and agitated. When Carter took medication, he became “a little bit better”;
when he refused it, he got “worse, ultimately leading to his going to Patton now three
years ago.” Rothberg did not believe Carter’s actions after the crime indicated an
understanding that what he did was wrong. Because Carter was known to be “very
psychotic,” it was not possible to know why he left the house and fled. Rothberg

                                              8
explained: “I don’t know how anyone can come to a conclusion that this person was not
seriously deranged when this occurred. And so what his motivation for running was is
impossible for us to know. For all we know he could have thought the demons were
going to kill him, and he needed to get away or maybe he thought the police were demons
and they were going to execute him. . . . . we just don’t know.” Further, there was no
rational motive for the crime.
       3. Verdict, sentence and appeal
       The jury found Carter was sane when he committed the murder. After Carter
waived his right to a jury trial on the prior conviction allegation, the trial court found he
had suffered a prior “strike” conviction for robbery. (§ 667, subds. (b) – (i).) It denied
his Romero motion8 and his motion for a new trial. The court sentenced Carter to 15
years to life on the murder charge, doubled pursuant to the “Three Strikes” law, plus a
one-year deadly weapon enhancement, for a total term of 31 years to life. It imposed a
restitution fine, a suspended parole revocation fine, a court operations assessment, and a
criminal conviction assessment. Carter appeals.
                                       DISCUSSION
       The trial court’s answer to the jury’s question was prejudicial error
       1. Additional facts
       During the second day of deliberations, the jury sent the trial court the following
questions: “We would like to know if we can consider the lack of medical treatment
prior to the crime in our decision? If we are unable to come to a[] unanimous decision
how should we proceed?” The trial court sent back a written response stating: “No, you
may not consider lack of medical treatment prior to the crime. [¶] Continue to
deliberate. If you cannot reach a decision, notify the bailiff.”
       The court’s minute order states that “[o]ff the record,” the court and counsel
conferred regarding the jury’s question. The record does not suggest what prompted the



8
       People v. Superior Court (Romero) (1996) 13 Cal.4th 497.


                                               9
jury’s question, nor does it reveal the basis for the court’s written response or the parties’
positions on the issue.
       2. Discussion
       a. Applicable legal principles
       “Under California’s statutory scheme, ‘[p]ersons who are mentally incapacitated’
are deemed unable to commit a crime as a matter of law.” (People v. Elmore (2014)
59 Cal.4th 121, 140; § 26.) “Mental incapacity under section 26 is determined by the
M’Naghten test for legal insanity provided in section 25, subdivision (b). [Citations.]
Under M’Naghten, insanity is established if the defendant was unable either to
understand the nature and quality of the criminal act, or to distinguish right from wrong
when the act was committed.” (People v. Elmore, supra, at p. 140.) A defendant may
suffer from a diagnosable mental illness without being legally insane under the
M’Naghten standard. (People v. Mills (2012) 55 Cal.4th 663, 672.) A plea of not guilty
by reason of insanity “ ‘is a statutory defense that does not implicate guilt or innocence
but, instead, determines “whether the accused shall be punished for the guilt which has
already been established.” ’ ” (People v. Blakely (2014) 230 Cal.App.4th 771, 775.) The
defendant has the burden of proving, by a preponderance of the evidence, that he was
legally insane at the time he committed the crime. (§ 25, subd. (b); People v. Elmore,
supra, at pp. 140-141; People v. Mills, supra, at p. 672.)
       A trial court must instruct, sua sponte, on the general principles of law that are
closely and openly connected to the facts and that are necessary for the jury’s
understanding of the case. (People v. Moye (2009) 47 Cal.4th 537, 548; People v. Abilez
(2007) 41 Cal.4th 472, 517.) When a jury asks a question after retiring for deliberation,
section 11389 imposes upon the court a duty to provide information the jury desires on

9
        Section 1138 provides: “After the jury have retired for deliberation, if there be
any disagreement between them as to the testimony, or if they desire to be informed on
any point of law arising in the case, they must require the officer to conduct them into
court. Upon being brought into court, the information required must be given in the
presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel,
or after they have been called.”

                                              10
points of law. (People v. Roldan (2005) 35 Cal.4th 646, 729, disapproved on another
point in People v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22; People v. Hodges (2013)
213 Cal.App.4th 531, 539; People v. Montero (2007) 155 Cal.App.4th 1170, 1179.) We
apply the abuse of discretion standard to any decision by a trial court to instruct in its
exercise of its supervision over a deliberating jury. (People v. Waidla (2000) 22 Cal.4th
690, 745-746.) We independently determine whether the instructions given were correct
and adequate. (People v. Riley (2010) 185 Cal.App.4th 754, 767; People v. Mathson
(2012) 210 Cal.App.4th 1297, 1311.)
       b. Forfeiture
       The People argue that Carter has forfeited his claim, because the record does not
reflect that his counsel objected to the trial court’s answer to the jury’s question. Citing
People v. Roldan, the People argue that “[w]hen a trial court decides to respond to a
jury’s note, counsel’s silence waives any objection under section 1138.” (People v.
Roldan, supra, 35 Cal.4th at p. 729.) “ ‘The failure of defendant’s counsel to object or
move for a mistrial upon the court frankly informing him of the court’s action might also
be construed to be a tacit approval.’ ” (Ibid.) But Roldan distinguished People v. Gurule
(2002) 28 Cal.4th 557, on the ground that there, “the trial court declined a jury request for
a readback of defense counsel’s closing argument ‘[a]fter conferring with the parties.’
[Citation.] Contrary to defendant’s claim . . . there is no indication the defense attorney
in Gurule failed to object.” (People v. Roldan, supra, at p. 729.) Likewise, because the
discussion in the instant case regarding the jury’s question transpired off the record, the
record does not disclose whether defense counsel interposed an objection.
       Even if we could infer the absence of an objection from defense counsel’s failure
to place an objection on the record or move for a mistrial, we have discretion to consider
any instruction, even in the absence of an objection, “if the substantial rights of the
defendant were affected thereby.” (§ 1259; see, e.g., People v. Johnson (2016)
62 Cal.4th 600, 638-639; People v. Anderson (2007) 152 Cal.App.4th 919, 927.)
Accordingly, we consider the merits of Carter’s claim.



                                              11
       c. The response to the jury’s question was error
       Carter argues the trial court’s instruction was prejudicial error because “the lack of
medical treatment on a severe mental illness whose symptoms include psychosis logically
tends to increase the probability of a psychotic episode – and thus increase the likelihood
of legal insanity”; further, it is “axiomatic that a schizophrenic is more likely to
experience psychosis if his illness is in an untreated state as opposed to a treated one.”
       We agree. The phrase “lack of medical treatment,” at a minimum, encompasses
the circumstance that a patient is not taking medication to treat a mental illness. The
jury’s question referenced lack of treatment “prior to” the murder, but did not specify a
time frame. As phrased, “prior to” the crime encompasses the period immediately
preceding the murder. Thus, the trial court’s response effectively precluded jurors from
considering, among other things, whether Carter was or was not medicated when he
committed the killing, and any effect that the absence of treatment may have had on his
mental state.
       The People argue that the trial court’s response was correct. Because the experts
agreed Carter suffered from a mental illness at the time of the murder, but knew and
understood the nature and quality of his actions, the only real issue was whether Carter
“was incapable of knowing or understanding that his act was morally or legally wrong.”
(See CALCRIM No. 3450.) The focus of the wrongfulness prong is the defendant’s
mental state at time of the crime, an issue the People suggest should be determined only
by reference to Carter’s actions, statements, and behavior at the time of the murder.
Thus, in the People’s view, Carter’s prior lack of treatment had no bearing on whether he
knew the wrongfulness of his actions.
       We are not persuaded. The People cite no authority for the proposition that a
defendant’s lack of treatment before the crime is irrelevant to the M’Naghten test. On the
evidence here, whether Carter was, or was not, being treated and medicated in the period
prior to the murder was highly relevant to resolution of the “knowledge of wrongfulness”
prong. There was evidence Carter was not being treated or medicated during the period
just preceding the murder. His mother testified there was no medication available for

                                              12
him, and he told Dr. Kojian he had not been taking his medication at the time of the
murder. There was evidence that when untreated and unmedicated, Carter’s condition
deteriorated and he became psychotic.10 Whether he was, or was not, psychotic, and the
degree of his psychosis, at the time he committed the killing was obviously relevant to
determination of whether he knew the wrongfulness of his actions. Considering the
reverse of the situation here illustrates the point: had Carter been treated and taking
effective medication in the period before the murder, we have little doubt that the People
would have sought to rely on such evidence to establish his sanity.
       As recited above, Dr. Morris based his opinion in part on the premise that the lack
of treatment or medication made it more likely Carter was psychotic and symptomatic,
and unable to appreciate the wrongfulness of his actions when he committed the crime.
Further, the prosecution’s experts based their conclusions in large part on their view that
Carter’s actions after the murder – hiding the body and the knife, leaving the house –
demonstrated consciousness of guilt. Morris and Rothberg countered that given Carter’s
deranged state, it was impossible to determine the reason for his actions. Morris, for
example, rejected the notion that Carter’s act of changing his bloody clothing was an
effort to cover up the crime, explaining: “I can’t make that determination in his case. I
mean, he’s doing one disorganized thing after another. He’s drinking toilet water. He’s
bathing in oatmeal.” In other words, if Carter’s mental state had deteriorated due to the
lack of treatment and/or medication, his post-crime behavior was not susceptible to the



10
       For example, when Morris first saw Carter, Carter was medicated. When Morris
next saw Carter, Carter was in jail; he had been off medication for some time and his
mental state had deteriorated. For safety reasons, Morris was allowed to speak with
Carter only when accompanied by 10 sheriff’s deputies. Carter “looked like a totally
different person.” He hid under the bed, got up and paraded around naked, and was
agitated and pacing. When Morris saw Carter a third time, Carter was at Patton State and
was medicated. He looked totally different again, was no longer mute, and was able to sit
calmly in a room and speak with Morris. Conversely, Dr. Plotkin testified that Carter
stated he had been taking his medications at the time of the murder, and so Plotkin
“would presume that his illness would be stable.”


                                             13
characterization suggested by the prosecution’s experts. If the jury was precluded from
considering such evidence, it was less likely to accept the defense experts’ opinions.
       There was expert testimony that the fact a defendant suffers from delusions is
potentially relevant to show he lacked understanding of the wrongfulness of his acts.
Dr. Kojian acknowledged that delusions or hallucinations “could impact [a defendant’s]
ability to know whether what they did was wrongful.” There was evidence Carter
experienced delusions when untreated.11 Thus, whether Carter was being treated
immediately preceding the crime was relevant to whether he had decompensated and
become delusional, a factor relevant to analysis of M’Naghten’s “knowledge of
wrongfulness” prong.
       Finally, the experts all based their conclusions regarding the wrongfulness prong
in significant part on Carter’s own statements and descriptions of the crime. Evidence of
Carter’s past treatment, or lack thereof, was relevant to the jury’s evaluation of these
opinions. Morris testified Carter was a poor historian who was unable to provide relevant
information. He explained: “I considered the fact he’d been untreated for multiple years.
There’s cognitive decline related to schizophrenia. People get dumbed down[,] become
more simplistic,” and Morris wondered whether this was true in Carter’s case. Thus, the
long-term failure to treat might have provided an alternative explanation for Carter’s
inability to articulate any psychotic underpinning for his crime.



11
       There was evidence Carter suffered from delusions on the evening preceding the
murder: he denied that his brother was actually his brother and he took an oatmeal bath,
an activity he had previously associated with the delusion he was “washing off the
demons.” There was also evidence he slapped a three-year-old neighbor shortly before
the murder and made unpleasant faces at a four-year-old girl; Dr. Rothberg opined that
these activities, when coupled with other evidence, could suggest Carter’s delusions
extended to a belief that young girls “weren’t who they actually were.” During other
periods when he was not medicated, he suffered from delusions that bugs were coming
out of his legs; he was a music star and his family was attempting to steal the rights to his
work; and he had been married and divorced and had a child who died due to breathing
problems.


                                             14
          In sum, the evidence of prior treatment and medication was relevant, but the trial
court’s response to the jury’s question potentially precluded the jury from considering it.
          d. Prejudice
          The People argue that any error in the trial court’s response was harmless. They
posit that any error must be evaluated under the Watson standard applicable to state law
instructional errors. Under the Watson standard, prejudicial error is shown where it is
reasonably probable that a result more favorable to the appealing party would have been
reached in the absence of the error. (People v. Wilkins (2013) 56 Cal.4th 333, 350-352;
People v. Watson (1956) 46 Cal.2d 818.) A “ ‘ “probability” in this context does not
mean more likely than not, but merely a reasonable chance, more than an abstract
possibility.’ ” (People v. Wilkins, supra, at p. 351.) Carter argues that the error is subject
to the federal Chapman standard, which requires reversal unless it appears beyond a
reasonable doubt that the error did not contribute to the verdict obtained. (Chapman v.
California (1967) 386 U.S. 18, 24; People v. Wilkins, supra, 56 Cal.4th at p. 350.) We
need not determine which standard applies here, because the error was prejudicial under
either.
          The People urge that the evidence Carter knew his conduct was wrongful was
overwhelming, in that he attempted to hide the body and the murder weapon and flee
from police; he never told anyone that he killed Mireya because he believed she was a
demon, or because voices commanded him to do so; and defense counsel never argued
the lack of treatment was a significant factor.
          We agree there was certainly sufficient, even persuasive, evidence supporting the
jury’s sanity finding. But that evidence was not necessarily overwhelming. Two experts
opined Carter was sane at the time of the murder; two opined he was insane. The two
defense experts countered the prosecution experts’ views on the evidence suggesting
consciousness of guilt. All the experts premised their views on review of years of
psychiatric records, and all explained the bases for their opinions.
          Carter’s first jury deadlocked, with eight jurors finding he was insane. The jury’s
question in the second sanity phase trial was asked simultaneously with its query as to the

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proper procedure if it was unable to come to a unanimous decision. The jury rendered its
verdict 10 minutes after the trial court answered the jury’s question, suggesting the trial
court’s response was quite significant to the jury’s analysis. In light of the foregoing, we
cannot say the error was harmless, in that it is reasonably probable the jury would have
rendered a more favorable verdict had it been properly instructed.
                                      DISPOSITION
       The jury’s finding that Carter was sane when he committed the murder is reversed.
The matter is remanded for further proceedings consistent with the opinions expressed
herein. In all other respects, the judgment is affirmed.


       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                  ALDRICH, Acting P. J.




We concur:




              LAVIN, J.




              HOGUE, J.


        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


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