Filed 8/20/14 P. v. Rincon CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F064184
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F10902302)
                   v.

VANESSA RINCON,                                                                          OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Fresno County. W. Kent
Hamlin, Judge.
         Lynne S. Coffin, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Peter H.
Smith, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
         Vanessa Rincon tried to kill her young son with a steak knife while she was high
on methamphetamine. The child survived the attack despite sustaining 25 stab wounds
and being dropped down a flight of stairs. Rincon was convicted by jury of premeditated
attempted murder (Pen. Code, §§ 664, 187) and willful infliction of corporal injury upon
a child (Pen. Code § 273d, subd. (a)).1
       On appeal, Rincon claims there was insufficient evidence to support (1) the
attempted murder conviction and (2) the jury’s finding that she was not legally insane at
the time of the offense. Both assertions of error rest upon poorly developed arguments
which are untenable under the controlling standard of review. We therefore affirm the
judgment.
                   FACTUAL AND PROCEDURAL BACKGROUND
       The underlying incident occurred at an apartment complex in Fresno where
Rincon lived with her then three-year-old son and two-month-old daughter. Acting under
the influence of methamphetamine, Rincon repeatedly stabbed her son in the head, face,
chest, back, and abdomen. The commotion drew the attention of Rincon’s neighbors, one
of whom saw Rincon exit her apartment and toss the injured child down into the stairwell
between the first and second floors of the building.
       Eyewitnesses described Rincon as irate and hysterical, babbling loudly to a
growing crowd of people as police and paramedics arrived at the scene. Amid her
ramblings, Rincon said, “I did it. I stabbed him. He is the devil…. Kill me. I stabbed
my baby. Just give me the lethal injection.” Police had to restrain Rincon to prevent her
from interfering with the paramedics as they tended to her son. At that point she
screamed, “Don’t help him. I want him to die. He’s a bad kid…. Don’t revive him. Let
him die.”
       Crime scene technicians took pictures of what appeared to be bloodstains on the
carpet in the front room of Rincon’s apartment. A broken steak knife was found on the
floor next to the stains. The blade, which measured approximately four inches, had
separated from the handle, and both pieces of the knife appeared to be covered in blood.
       1   All further statutory references are to the Penal Code unless otherwise indicated.



                                               2.
         All told, Rincon’s son was stabbed nine times in the head and sixteen times in the
face and body. This resulted in a host of injuries, including punctured lungs and a
severely lacerated kidney. The boy also sustained an orbital fracture (a break in the bone
around the eye socket) and was treated for a possible second fracture at the base of his
skull.
         The Fresno County District Attorney charged Rincon by information with one
count of attempted willful, deliberate, and premeditated murder, and one count of
corporal injury upon a child. Both counts included enhancement allegations for personal
infliction of great bodily injury on a child under the age of five years (§ 12022.7, subd.
(d)) and personal use of a deadly or dangerous weapon (§ 12022, subd. (b)(1)). Rincon
answered the charges by entering a general plea of not guilty and a special plea of not
guilty by reason of insanity. At the request of Rincon’s trial attorney, all matters in
dispute were tried before a jury in a “unified” proceeding without bifurcation of the
insanity issue.2

         2The trial court may have erred by allowing this unorthodox procedure. (See
People v. Elmore (2014) 59 Cal.4th 121, 140-141.) Section 1026 provides, in pertinent
part, “When a defendant pleads not guilty by reason of insanity, and also joins with it
another plea or pleas, the defendant shall first be tried as if only such other plea or pleas
had been entered, and in that trial the defendant shall be conclusively presumed to have
been sane at the time the offense is alleged to have been committed. If the jury shall find
the defendant guilty … then the question whether the defendant was sane or insane at the
time the offense was committed shall be promptly tried, either before the same jury or
before a new jury in the discretion of the court….” (§ 1206, subd. (a).) Earlier cases
hold that a defendant may waive bifurcation when a trial judge sits as the trier of fact
during the guilt phase, but those authorities leave open the question of whether the same
is true for a jury trial. (E.g., People v. Dessauer (1952) 38 Cal.2d 547, 554 [“At least in a
case tried by the court without a jury[,] the right to have guilt and insanity separately tried
may be waived.”].) That being said, Rincon does not allege procedural error in her
briefs, and in any event the doctrine of invited error would preclude reversal on such
grounds. (See People v. Bailey (2012) 54 Cal.4th 740, 753 [“‘The doctrine of invited
error is designed to prevent an accused from gaining a reversal on appeal because of an
error made by the trial court at his behest.’”].)



                                              3.
       At trial, the prosecution’s case-in-chief included eyewitness testimony from
Rincon’s neighbors and from law enforcement officers who were involved in the case.
The nature and extent of the victim’s injuries was established through the testimony of a
physician who oversaw the child’s hospital care following the incident. Photographs and
physical items collected at the crime scene were also admitted into evidence.
       The defense case focused on Rincon’s state of mind at the time of the offenses.
Several of her friends and relatives testified that she had always been a good mother and,
as far as they knew, had no history of mental problems or illegal drug use. Other defense
witnesses acknowledged Rincon’s prior drug use, and claimed that she had shown signs
of depression and unusual behavior in the days preceding the attack on her son.
       Dr. Thomas Callahan, a psychiatrist, was the first medical expert called by the
defense to address the issue of Rincon’s sanity. Dr. Callahan had interviewed Rincon at
the Fresno County Jail approximately one year after the subject incident occurred.
Based on his personal observations and a review of the relevant police reports,
Dr. Callahan made an initial diagnosis of “brief psychotic disorder in remission.” The
expert believed Rincon had experienced a psychotic episode when she harmed her son,
but found no manifestations of a psychotic disorder when he interviewed her.
Dr. Callahan’s initial findings did not specify the cause of Rincon’s psychosis.
       To the apparent surprise of defense counsel, Dr. Callahan had updated and revised
his original conclusions by the time of trial. On the witness stand, he opined that Rincon
had a “substance induced psychotic disorder,” caused by the use of amphetamines, “with
delusions in remission.” In other words, he believed the defendant was psychotic at the
time of the offenses “because of an intoxication of amphetamines.” Dr. Callahan’s
revised diagnosis followed his review of documents concerning Rincon’s substance abuse
and her “socio-economic history,” which were provided to him by Rincon’s attorney
subsequent to his initial assessment.



                                            4.
       The second defense expert was Dr. James Missett, also a psychiatrist. Dr. Missett
performed a psychiatric evaluation of Rincon, reviewed her medical records from before
and after the incident, and watched video footage of a police interview conducted on the
day of her arrest. The video was shown to the jury in conjunction with Dr. Missett’s
testimony.3
       Dr. Missett concluded that Rincon had been suffering from a psychotic disorder at
the time of the incident which was unlikely to have been caused by her use of
methamphetamine. He believed Rincon’s psychosis was probably attributable to a
variety of different “stressors” in her life, including financial issues (she was unemployed
and on welfare); the fact that she was raising two small children conceived by different
fathers, neither of whom were involved in their lives; and her strained relationships with
certain family members. Ingesting methamphetamine effected Rincon, but in
Dr. Missett’s opinion, “it shouldn’t have made her psychotic.”
       A third psychiatrist, Dr. Howard Terrell, testified for the prosecution on rebuttal.
Like the other experts, Dr. Terrell met with Rincon in person to perform a psychiatric
evaluation and also reviewed the available documentation related to her case. He was
firmly of the belief that Rincon’s actions on the day in question occurred while she was in
a state of methamphetamine-induced psychosis. Citing toxicology reports in Rincon’s
medical records, Dr. Terrell noted that the levels of methamphetamine found in her blood
on that date were extremely high at 0.29 milligrams per liter (mg/L). He explained that
methamphetamine produces a psychoactive effect at levels between 0.05 mg/L and

       3  The video was recorded approximately two hours after Rincon stabbed her son.
It shows Rincon’s demeanor vacillate between calm, friendly conversation and manic
expressions of fear and grief. She admits to taking “a couple hits” of methamphetamine
earlier in the day, stabbing her son with a knife, and throwing him down a set of stairs.
Rincon also makes a number of bizarre references to God and the Bible, talks about
slaughtering “the lamb” and “the enemy,” and at times seems to have difficulty focusing
on the questions asked by the detective conducting the interview.



                                             5.
0.1 mg/L, and the potentially toxic range begins at 0.225 mg/L. Toxic levels indicate a
much higher likelihood of irrational, bizarre, and psychotic behavior.
       Dr. Terrell’s opinions differed significantly from those of Dr. Missett with respect
to the cause of Rincon’s psychotic episode. Defense counsel alluded to this on cross-
examination by asking Dr. Terrell if experts often hold different opinions about the same
subject matter. The witness replied, “They certainly can, depending on the complexity.”
Rincon’s attorney then asked, “[I]n regards to this particular case, did you find it very
complex?” Dr. Terrell replied, “Not really. I think it was about as straight-forward a
case of methamphetamine-induced psychosis as I’ve ever seen in my life, so no.”
Undeterred, counsel asked the witness if he believed there were other possible
explanations for Rincon’s behavior towards her son. Dr. Terrell responded, “I’d say most
anything’s possible, but is it probable that there’s a different reason other than the
methamphetamine-induced psychosis? Probably not. I think it’s very unlikely it would
be anything else that could legitimately explain it.”
       Rincon was convicted as charged and the jury returned true findings on the
enhancement allegations. On the question of insanity, the jurors found the defendant was
not legally insane when she committed her crimes. The trial court sentenced Rincon to
life in prison with the possibility of parole based on the conviction for attempted murder,
plus six years for the great bodily injury enhancement and one additional year for the
deadly weapon enhancement. In addition, though stayed pursuant to section 654, an
aggregate term of 13 years in prison was imposed for the commission of corporate injury
upon a child (6 years) with great bodily injury (6 years) and personal use of a dangerous
or deadly weapon (1 year). This timely appeal followed.
                                       DISCUSSION
Standard of Review
       “In reviewing a criminal conviction challenged as lacking evidentiary support,
‘“the court must review the whole record in the light most favorable to the judgment

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below to determine whether it discloses substantial evidence - that is, evidence which is
reasonable, credible, and of solid value - such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.”’” (People v. Streeter (2012) 54 Cal.4th
205, 241.) A jury’s factual findings are reviewed under the same standard. (People v.
Stanley (1995) 10 Cal.4th 764, 792-793.) “Even when there is a significant amount of
countervailing evidence, the testimony of a single witness that satisfies the standard is
sufficient to uphold the finding.” (People v. Barnwell (2007) 41 Cal.4th 1038, 1052.)
       Reversal is not warranted unless the evidence is insufficient to support the verdict
under any hypothesis. (People v. Bolin (1998) 18 Cal.4th 297, 331.) The appellate court
cannot reweigh the evidence, reinterpret the evidence, or substitute its judgment for that
of the jury. (People v. Baker (2005) 126 Cal.App.4th 463, 469.) “If the circumstances
reasonably justify the jury’s findings, the reviewing court may not reverse the judgment
merely because it believes that the circumstances might also support a contrary finding.”
(People v. Ceja (1993) 4 Cal.4th 1134, 1139.)
Attempted Murder
       “Attempted murder requires the specific intent to kill and the commission of a
direct but ineffectual act toward accomplishing the intended killing.” (People v. Ervine
(2009) 47 Cal.4th 745, 785.) Rincon claims the evidence at trial was insufficient to
establish that she took a “direct step” towards killing her son, but offers little in the way
of substantive argument to support this contention. Her position appears to be based on
the fact that she tossed her child into an open stairwell after stabbing him. She reasons
that such conduct “placed her son in a position that made him more, not less, accessible
to others [who might have rendered assistance], taking him from the seclusion and
isolation of her apartment to the visibility of the outside stairway.” We are not
persuaded.
       “Mental state and intent are rarely susceptible of direct proof and must therefore
be proven circumstantially.” (People v. Thomas (2011) 52 Cal.4th 336, 355.) The intent

                                              7.
to kill may be inferred from a defendant’s acts and the circumstances of the crime.
(People v. Avila (2009) 46 Cal.4th 680, 701 (Avila).) In Avila, supra, the California
Supreme Court affirmed a conviction for attempted murder under circumstances where
the defendant had stabbed at a trapped and unarmed victim more than 20 times using a
knife with a blade that was approximately six inches long. (Avila, supra, 46 Cal.4th at
pp. 686, 701.) The defendant succeeded in cutting the victim’s leg and slicing his bicep
in half. (Id. at p. 686.) On these basic facts, the high court held: “This evidence alone is
substantial evidence of defendant’s intent to kill.” (Id. at pp. 701-702.)
        The evidence which showed that Rincon stabbed her defenseless child 25 times
was sufficient to establish her intent to kill, and also constituted proof that she took a
“direct step” towards accomplishing that goal. (Avila, supra, 46 Cal.4th at pp. 701-702.)
Placing the injured victim in a location where he was likely to receive assistance from
others did not negate the elements of the crime. (See CALCRIM No. 600 [“A person
who attempts to commit murder is guilty of attempted murder even if, after taking a
direct step toward killing, he or she abandons further efforts to complete the crime….”].)
The jury could have further inferred Rincon’s intent to kill based on her attempt to
disrupt the paramedics’ efforts to save her son’s life, and the incriminating statements she
made at that time (“Don’t help him. I want him to die.”).
        Rincon additionally argues that the “element of preparation” was missing. We
assume she is speaking to the issue of premeditation. Planning and preparation are not
distinct elements of attempted murder, but the punishment for that offense increases if it
is shown that the attempt to kill was committed with premeditation and deliberation, as
the jury found in this case. (§ 664, subd. (a); People v. Gonzalez (2012) 54 Cal.4th 643,
654.)
        Attempted murder is premeditated and deliberate if it occurs “as the result of
reflection rather than unconsidered or rash impulse.” (People v. Nelson (2011) 51 Cal.4th
198, 213.) “However, the requisite reflection need not span a specific or extended period

                                              8.
of time. Thoughts may follow each other with great rapidity, and cold, calculated
judgment may be arrived at quickly.” (Ibid.)
       In her interview with police, Rincon twice confirmed that she retrieved a steak
knife from her kitchen and used it to stab her son. Physical evidence indicated that the
offense occurred in a different room of her apartment, thus supporting the conclusion that
she had time to consider her behavior before attempting to kill the victim. There was
additional time for reflection during the interval between the first and twenty-fifth
stabbing.
       One of the police officers who spoke with Rincon at the crime scene testified to
hearing her say, “I called my dad and told him what I was going to do.” Rincon’s father
and stepfather both acknowledged receiving phone calls from her earlier in the day, and
her stepfather admitted that she had wanted him to pick her son up from the apartment
because he was misbehaving. Although neither relative acknowledged Rincon had given
them advance notice of her intent to harm the boy, this evidence was probative of
appellant’s premeditation and deliberation. Accordingly, and for all of the reasons stated
above, we conclude the jury’s findings were supported by substantial evidence.
Insanity
       A defendant who proceeds at trial on a plea of not guilty by reason of insanity has
the burden of proving, by a preponderance of the evidence, that he or she was legally
insane at the time of the underlying offense. (§ 25, subd. (b); People v. Hernandez
(2000) 22 Cal.4th 512, 521 (Hernandez).) “Insanity, under California law, means that at
the time the offense was committed, the defendant was incapable of knowing or
understanding the nature of his act or of distinguishing right from wrong.” (Hernandez,
supra, 22 Cal.4th at p. 520.) However, insanity cannot be based upon the “addiction to,
or abuse of, intoxicating substances.” (§ 29.8.) It follows that while Rincon may have
experienced a psychotic episode, the jury was entitled to find her legally sane if it



                                             9.
believed her psychosis was caused by the voluntary ingestion of intoxicants. (§ 29.8;
People v. Robinson (1999) 72 Cal.App.4th 421, 427.)
       “Because the burden was on the defense to show by a preponderance of the
evidence that appellant was insane, before we can overturn the trier of fact’s finding to
the contrary, we must find as a matter of law that the [jury] could not reasonably reject
the evidence of insanity." (People v. Skinner (1986) 185 Cal.App.3d 1050, 1059.) We
cannot reach such a conclusion given the expert testimony provided by Drs. Callahan and
Terrell. Both experts were of the opinion that Rincon experienced methamphetamine-
induced psychosis, and provided reasoned explanations for their findings. Dr. Terrell
opined that it was not only improbable, but “very unlikely” that her wrongful behavior
was attributable to anything other than the use of methamphetamine. The jury’s finding
that Rincon was not legally insane at the time of the offense was thus supported by
substantial evidence. It is not our role to second-guess that determination.
                                     DISPOSITION
       The judgment is affirmed.



                                                                _____________________
                                                                              Gomes, J.
WE CONCUR:


 _____________________
Hill, P.J.


 _____________________
Cornell, J.




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