P. v. Hernandez

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Filed 6/7/07 P. v. Hernandez CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSHUA NATHAN HERNANDEZ,
Defendant and Appellant.
A111239
(Humboldt County
Super. Ct. No. CR040354S)
Defendant Joshua Nathan Hernandez appeals his conviction by jury trial of three
counts of attempted murder (Pen. Code, §§ 664, 187, subd. (a)),1 five counts of assault
with a deadly weapon (§ 245, subd. (a)(1)), first degree burglary (§§ 459, 460, subd. (a)),
infliction of unjustifiable physical pain or mental suffering on a child (§ 273a, subd. (a)),
and second degree burglary (§§ 459, 460, subd. (b)). The jury found true the great bodily
injury enhancement allegations charged in connection with the three attempted murder
counts and four of the assault with a deadly weapon counts, and found that defendant was
sane at the time the offenses were committed.2
Defendant contends the sanity finding was not supported by substantial evidence,
defense counsel provided ineffective assistance, the court’s insanity instruction was
1 All undesignated section references are to the Penal Code.
2 Defendant was sentenced to 22 years in state prison.

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erroneous and the court committed Blakely error (Blakely v. Washington (2004) 542 U.S.
296). We agree that Blakely error was committed and remand for resentencing.
B ACKGROUND
Bay Street Attack
On the evening of January 13, 2004, Brett Butler went to visit his ex-girlfriend
Rebecca Hamline at her Bay Street home in Eureka. As Butler turned onto Bay Street, he
saw defendant sitting on a wall about 100 yards from Hamline’s house. Butler and
defendant made eye contact but did not converse. About 10 minutes later, while Butler
was seated on Hamline’s porch with Hamline, Michael Wade, and Wade’s girlfriend
“Misty,” defendant walked by the house. Hamline’s dog began barking and defendant
said, “Hey, foxy.” Believing that defendant was referring to Hamline, Butler told him to
“shut up,” and defendant said something Butler could not hear and continued walking.
Sometime later that evening, while in a bedroom in Hamline’s home with Misty,
Wade, Hamline and an infant, Butler heard the front door open and shut. Defendant then
entered the bedroom, shut the door, walked past Misty and jumped on top of Wade, who
was sitting on the bed. Defendant put his knees on Wade’s shoulders and began
punching him in the head. After Butler punched defendant in the face to get him off of
Wade, defendant stabbed Butler in the face. Hamline screamed and hit defendant, and,
then, defendant stabbed Butler in the torso, hitting his liver and ribs. Butler fell into the
TV, defendant turned back toward Wade, and Butler fled.
At the time defendant entered Hamline’s home, Lucretia Prabhu was visiting her
elderly grandmother, who resided there. Prabhu, her sister and her 14-year-old niece
were with the grandmother in another room in the house when Prabhu heard her cousin,
Wade, and Misty screaming. Prabhu pushed her grandmother back and saw defendant
pulling Wade out of the room by his hair and holding a knife to his scalp. Defendant then
punched Prabhu’s 16-year-old nephew, Christopher. When Prabhu told defendant to
stop, he slit her throat and stabbed her between the ribs. Prabhu asked defendant why he
was stabbing her and said, “I don’t even know you.” Defendant did not reply.

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When defendant moved toward Prabhu’s sister and grandmother, Prabhu tried to
pull him away and he stabbed her again, nearly severing her thumb. Thereafter, while
defendant was standing in front of Prabhu, Butler stumbled in the back door, struck
defendant with a pitchfork, and defendant fled.
Alder Bay Attack
The next morning, on January 14, 2004, Virginia Williams was working as a
caregiver at the Alder Bay Assisted Living facility in Eureka (Alder Bay). She was in the
basement monitor room updating a resident’s chart when she felt a blow to the right side
of her head, causing her to be thrown to the ground. She then sustained repeated blows to
the head, causing her to go in and out of consciousness. When she tried to get up from
the floor, Williams saw the naked defendant trying to close and lock the exterior door.
When she tried to flee, defendant pulled her back into the room. After unsuccessfully
trying to pull her into the bathroom, defendant threw her to the floor, climbed on top of
her, pinned her arms with his knees and tried to choke her.
Maintenance worker William Hatton heard Williams screaming and found the
naked defendant sitting on Williams’s chest. Williams’s face was bloody. Hatton and
another Alder Bay employee tackled defendant and restrained him until the police
arrived. While being restrained, defendant’s demeanor was “pretty wild.” It took police
about five minutes to restrain him so that he could be transported to the hospital.
Thereafter, police found defendant’s fanny pack and clothes on a walkway in a wooded
area behind the facility.
Expert Testimony Regarding Defendant’s Sanity
Three expert witnesses testified for the defense.3 Clinical psychologist Michael
Ramirez examined defendant for about 30 to 40 minutes on February 6 and 10, 2004, to
determine whether he was competent to stand trial, not to form an opinion as to his sanity
at the time of the offenses. Dr. Ramirez reviewed available records and talked with jail
staff. Thereafter, Dr. Ramirez diagnosed defendant as suffering from a psychotic
3 The prosecution presented no expert testimony on the sanity issue.

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disorder, nonspecified, based primarily on his perceptual distortions, i.e., auditory and
visual hallucinations. Dr. Ramirez noted that defendant’s symptoms included thought
processes involving persecution and paranoia, anxious and agitated affect, and lability.
On cross-examination, Dr. Ramirez stated that during the evaluation defendant’s
intelligence level appeared average to above average, he exhibited no signs of
hallucination, and did not report having any hallucinations. Dr. Ramirez said that
defendant’s statement that people in the jail were “out to get him” was an example of
delusional-type thinking, but conceded that there could have been people in the jail that
really were “out to get” him. Although Dr. Ramirez believed that defendant had a
psychotic disorder, he did not have enough information to make a specific diagnosis, and
conceded he did not ask defendant to perform any quantifiable tests with regard to
defendant’s mental state.
Forensic and clinical psychologist Otto Vanoni evaluated defendant in March
2005 to determine whether he was not guilty by reason of insanity (NGI). Dr. Vanoni
opined that defendant was legally insane at the time of the incident based on his finding
that at the time of the incident defendant was unable to recognize the moral or legal
wrongfulness of his behavior. Dr. Vanoni diagnosed defendant as suffering from
paranoid schizophrenia with traits and features of a personality disorder, including
narcissism. Dr. Vanoni noted that at the time of the evaluation defendant was on
psychotropic medication for psychosis and showed no behavioral signs of paranoid
schizophrenia. Aside from interviewing and evaluating defendant, Dr. Vanoni reviewed
the police incident reports, May 2004 records from Atascadero State Hospital (ASH), a
prior hospitalization in Alaska and defendant’s writings. Dr. Vanoni noted that at age 18,
defendant was receiving SSI (supplemental security income) for a mental disorder.
Dr. Vanoni administered a Rorschach test, a Rogers Criminal Responsibility Assessment
Scale, and a Millon personality test. He described defendant’s psychosis as “so flagrant
and so obvious, it’s a no brainer.”
On cross-examination, Dr. Vanoni stated that although his legal insanity
conclusion was also based on defendant’s lack of comprehension of the nature and

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quality of his criminal behavior, he did not include that factor in his report and conceded
that “[he] left open a vague possibility that that [factor] may not have been totally
accurate.” He also conceded that he did not receive any reports from Alaska, made no
attempt to assess whether defendant’s treatment in an Alaska psychiatric facility ever
occurred, and relied on defendant’s self-reporting about the prior Alaska treatment and
his receipt of SSI for a serious psychiatric disorder. Dr. Vanoni also conceded that the
police reports following the incident made no mention of defendant’s hallucinating, and
referred to him only as violent, uncontrollable and disorganized, and stated defendant
“could not be understood.”4 Dr. Vanoni said his opinion of defendant’s lack of sanity
primarily applied to the Alder Bay incident, and that the Bay Street incident had little
impact on his opinions. He conceded that it would have been helpful to seriously review
the Bay Street incident, which occurred hours before the Alder Bay incident. He also
conceded that a mental health professional can be fooled as to the existence of a person’s
hallucinations and delusions, particularly if the professional has limited data and if the
person’s history is flawed, incomplete, or untrue. In addition, the person’s intelligence
level and sophistication as to the mental health system factor into his ability to fool the
mental health professional.
Forensic psychiatrist Robert Soper evaluated defendant in April 2005 and
determined that at the time of the offenses defendant was legally insane, showing signs
and symptoms of psychosis. In particular, Dr. Soper noted that defendant was delusional,
had hallucinations and had disordered speech. He diagnosed defendant as suffering from
schizo-affective disorder. His conclusion was based on interviews with defendant,
defendant’s writings, the police reports, the ASH discharge report, Dr. Vanoni’s report
and two interviews by Dr. Soper’s associate, a licensed clinical social worker. Dr. Soper
noted that defendant’s biological father apparently had severe delusions and that
hallucinations and chronic psychosis is typically an inherited disorder. Dr. Soper testified
4 The police officer reported that he did not think defendant was coherent enough to be
advised of his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436).

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that defendant’s writings two weeks after he was incarcerated described classic chronic
psychotic behavior, including hallucinations and delusions in which he was a god and
needed to please other gods by attacking humans. Dr. Soper stated that defendant’s
writings were the most contemporaneous description of what was going on in his mind at
the time of the offenses. Dr. Soper said he saw no signs or symptoms that defendant was
malingering or “faking” the delusions, and defendant’s writings were consistent with his
statements to Dr. Soper during the July 2005 trial. Dr. Soper opined that defendant’s
coherent behavior during the jail interviews was due to successful medication treatment.
On cross-examination, Dr. Soper conceded that while at ASH, defendant watched
a video which provided some information about how psychosis affects one’s judgment in
determining right and wrong, and presumably learned that there were legal implications.
Thereafter, defendant wrote a letter to Drs. Vanoni and Soper stating, in part: “A year
ago . . . I saw a video at [ASH], which showed a paranoid schizophrenic male who killed
his mother with a sword and did not think it was wrong at the time, I immediately felt
that I had something in common with this male because I knew at that time and still
do, . . . that I did not think at the time of the crime what I was doing was wrong.”
Dr. Soper conceded that another statement written by defendant was at least an indicator
that before being interviewed by him, defendant had a rudimentary knowledge of
paranoid schizophrenia and how a finding of that disorder might affect his legal case.
Dr. Soper admitted that at the time defendant was interviewed, defendant was hoping that
he would be found insane at the time of the offenses. He also conceded that although
“highly unlikely,” it was “theoretically possible” that defendant’s writings were
manufactured for “faking” an NGI defense. He also admitted that science fiction fantasy
novels and the game “Dungeons and Dragons” often have bizarre descriptions of god-like
individuals and dragons and “fights to the death.”
D ISCUSSION
I. Substantial Evidence Supports The Jury’s Sanity Finding
The insanity defense “shall be found by the trier of fact only when the [defendant]
proves by a preponderance of the evidence that he or she was incapable of knowing or

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understanding the nature and quality of his or her act and of distinguishing right from
wrong at the time of the commission of the offense.” (§ 25, subd. (b).) “Because the
burden was on the defense to show by a preponderance of the evidence that [defendant]
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.
[Citations.]” (People v. Skinner (1986) 185 Cal.App.3d 1050, 1059.) The fact that the
prosecution presented no expert testimony does not compel the trier of fact to accept
defendant’s experts’ opinions. (Ibid.) Expert testimony is circumstantial, not direct
evidence, and the expert’s credibility is for the jury to evaluate. (People v. Gentry (1968)
257 Cal.App.2d 607, 611.)
Defendant contends that the uncontradicted defense expert testimony established
that he was insane at the time he committed the instant offenses; and, therefore, the jury’s
sanity verdict was not supported by substantial evidence. He concedes that his experts
“did less than [a] perfect job in their evaluations of [defendant], especially in failing to
obtain reports or records to verify his past history.” However, he argues that the experts
found that his psychosis was “overwhelming and classic,” concluded he was not
malingering, and believed his written statements could not have been produced by
someone lacking a sophisticated understanding of psychiatry. He asserts that no rational
trier of fact could have concluded that he concocted an elaborate scenario of
hallucinations and delusions sufficient to convince three experienced doctors of his
insanity at the time of the instant offenses.
Based on the record before us, the jury could reasonably have rejected the defense
experts’ opinions and found defendant was sane at the time of the offenses. First, the jury
could reasonably have disregarded Dr. Ramirez’s testimony because he did not evaluate
defendant’s sanity at the time of the offenses, and instead evaluated only his competency
to stand trial. Second, the jury could have rejected the insanity finding by Dr. Vanoni
because it was based only on the Alder Bay assault despite Dr. Vanoni’s concession that
it would have been helpful to review the Bay Street incident since it occurred only hours
before the Alder Bay incident. Third, as defendant concedes, his experts failed to obtain

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relevant reports, relying instead on defendant’s own statements about his mental health
history. Given defendant’s express desire to have the experts find him insane, the jury
could have reasonably disregarded the self-serving information defendant provided to the
experts. Fourth, the jury could have concluded that defendant possessed above average
intelligence, a sophisticated knowledge of the mental health system, and an
understanding of the legal ramifications of a paranoid schizophrenia diagnosis. Relying
on that conclusion, the jury could properly reject the experts’ conclusions that defendant
was not malingering and could reasonably have found him sane at the time he committed
the offenses.
II. There Was No Prosecutorial Misconduct
Defendant notes that his failure to raise a prosecutorial misconduct objection and
request an admonition when such could have cured any error constitutes a waiver of a
prosecutorial misconduct claim. He contends his trial counsel was ineffective in failing
to object to the prosecutor’s misconduct in making “contemptuous remarks” about the
defense experts’ testimony.
“In order to demonstrate ineffective assistance, a defendant must first show
counsel’s performance was deficient because the representation fell below an objective
standard of reasonableness under prevailing professional norms. [Citation.] Second, he
must show prejudice flowing from counsel’s performance or lack thereof. Prejudice is
shown when there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome. [Citation.]” (People v.
Williams (1997) 16 Cal.4th 153, 214-215.)
“An attorney may choose not to object for many reasons, and the failure to object
rarely establishes ineffectiveness of counsel.” (People v. Kelly (1992) 1 Cal.4th 495,
540.) We thus examine each instance of alleged misconduct in determining defendant’s
incompetence of defense counsel claim.

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A. Remarks Regarding Forensic Psychiatry and Psychology
Defendant contends the following comments by the prosecutor constituted
misconduct:
In rejecting defense counsel’s argument that a change in defendant’s Axis 1
diagnosis did not matter, the prosecutor stated, “I submit to you, it matters a great deal
because it shows that, frankly—I’ll talk about this more—forensic psychology cannot
answer the question that is being asked in this case.”
In arguing that the testimony of Drs. Soper and Vanoni was “not worthy of
credibility,” the prosecutor stated, “the science—and I put quotes around that—on which
it is based is not science at all.”
“[N]ot only is forensic psychiatry or psychology useless and misleading, it’s
counterproductive, because this field, forensic psychology, forensic psychiatry, the
interaction of psychology and psychiatry with the court system is not science. It’s
incapable of answering the crucial question in this case. What’s his mental illness? It
can’t answer that question because in the forensic realm, particularly psychology and
psychiatry, is not a true science.”
“This isn’t science. . . . There was no scientific test that can tell you whether he
was psychotic, whether he had a personality disorder. They cannot do that.”
“You don’t have to accept [the defense experts’] opinion just because they’ve got
letters after their name or they went to school no more than you have to accept a snake oil
salesman’s opinion of what his product will do for you. That’s what this is. This is snake
oil.”
In discussing the defense experts’ diagnoses of defendant, the prosecutor stated,
“Once again, [this] is not a scientific procedure. . . . You can look at any criteria you
want in order to make the diagnosis. That’s the problem with all of this. It’s so
subjective on the part of the examiner.”
“In any event, of course, they’re applying a . . . procedure that . . . has nothing
scientific about it anyway.”

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“But it just shows you sort of the very subjective nature of this whole thing. It’s
really kind of a shoot by the hip, this is what I think sort of procedure. It is not the
scientific method. . . . This is not science.”
“You have [this] flawed procedure incapable of producing a consistent result,
incapable of truly distinguishing one mental illness from another.”
Defendant contends the prosecutor’s remarks about science were impermissible
because they were not based on any evidence presented, and improperly implied that the
prosecutor was privy to superior knowledge from sources unavailable to the jury. He
also contends the remarks improperly sought to persuade the jury to disregard the court’s
ruling qualifying the defense psychiatrist and psychologists as experts, and to substitute a
more rigorous standard of expert qualification based on “the scientific method.”
“A prosecutor may vigorously urge his points as long as he does not act unfairly
and may use appropriate epithets where warranted by the nature of the case and the
evidence adduced.” (People v. Babbitt (1988) 45 Cal.3d 660, 700.) In Babbitt, relied on
by defendant, the court found that the prosecutor’s comments were not directed to the
evidence of the defendant’s mental state at the time of the offenses or to the weight of the
expert’s testimony, but instead, to challenging the “entire system of permitting
psychiatric testimony on behalf of criminal defendants.” (Ibid.) The court stated, “[t]he
courtroom is not the proper forum to challenge the propriety of this system,” and
therefore the comments were improper. However, the court found the error harmless, in
part because the jury was instructed that the law permitted expert testimony on the issue
of the defendant’s mental capacity and that the jury should give that testimony the weight
it found it deserved. (Ibid.)
We reject defendant’s assertion that the prosecutor’s remarks did not rest on the
evidence presented. In discussing the Rogers Criminal Responsibility Assessment Scale
Dr. Vanoni utilized to determine defendant’s legal insanity, he testified that rating the 25
elements of the scale “doesn’t mean this is a . . . scientific standard.” He testified that
instead, “you take all of these questions and you cogitate, you examine, and you throw it

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up against the [M’Naghten] standard.”5 Dr. Soper testified that he relied on the testing
performed by Dr. Vanoni. In addition, Dr. Soper testified that psychiatrists rarely get
training in how to administer the Rorschach test and there is controversy about the
efficacy or accuracy of the different methods of test administration.
A prosecutor may urge, in colorful terms, that defense witnesses are not entitled to
credence. (People v. Earp (1999) 20 Cal.4th 826, 863.) The prosecutor’s disparaging
comments regarding forensic psychiatry and psychology not being science were based on
the evidence presented. In addition, contrary to defendant’s assertion, nothing about the
prosecutor’s comments suggested the prosecutor was privy to superior knowledge from
sources unavailable to the jury. Moreover, we reject defendant’s claim that the
prosecutor’s comments sought to persuade the jury to disregard the court’s expert witness
determination. At no time did the prosecutor argue that the expert witnesses were not
properly qualified as experts or should be disqualified.
Because the challenged statements were not improper, defense counsel was not
ineffective in failing to object to them.
B. Misstatement of the Evidence
Defendant next contends the following remarks by the prosecutor “seriously and
significantly” misstated the testimony of Drs. Soper and Vanoni: “Now, [defense
counsel] talked about how all the doctors said, hey, this was an easy one. I think
Dr. Vanoni even said it was a no brainer. That’s too easy. I’m not going to go there. But
you know what I mean. He also used the word ‘obvious.’ Folks, this isn’t easy. It’s not
obvious. And it’s not supposed to be. It’s not supposed to be easy to make a
determination as to whether someone is not guilty by reason of insanity. You heard
Dr. Soper testify that . . . it’s a pretty strict standard, particularly in this state. It’s hard in
California for whatever . . . people in other states like to make fun of California and the
criminal justice system. For whatever they say, it’s not easy to be found not guilty by
reason of insanity in this state. It’s a restrictive standard. Burden’s on the defense. They
5 M’Naghten’s Case (1843) 10 Clark & Fin. 200, 210 [8 Eng.Rep. 718, 722].

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have to show he didn’t know right from wrong. They have to show specific type of
mental illness. It’s not easy to do. It shouldn’t be. It shouldn’t be easy to absolve
someone of criminal responsibility for [11] serious felony offenses. That shouldn’t be
easy. And the people giving you the opinion shouldn’t approach this like it is easy or it is
obvious. . . .”
Defendant argues that Drs. Soper and Vanoni did not testify it was easy to meet
the California standard for criminal insanity and the prosecutor’s argument improperly
misrepresented their testimony to undermine their credibility. We disagree. The
prosecutor did not argue that Drs. Soper and Vanoni testified it was easy to meet the
California standard of criminal insanity. Instead, his argument was directed at
Dr. Vanoni’s testimony that the evidence of defendant’s psychosis was “so flagrant and
so obvious, it’s a no brainer.” The thrust of the prosecutor’s argument was that arriving
at a mental health diagnosis and a finding of legal insanity was not easy and obvious, and
the methods used by the experts in this case were deficient, rendering their conclusions
suspect. Such argument was proper and not misconduct. Consequently, defense counsel
was not ineffective in failing to object to it.
C. Personal Attack
Defendant also contends the prosecutor committed misconduct during closing
argument by making the following insulting and derogatory remarks about Drs. Soper
and Vanoni including: (1) their work was “sloppy,” “terrible,” “unconscionable,” “not
true,” “inadequate,” and “slipshod”; (2) Dr. Soper “couldn’t be bothered to take the time
to spend any particular amount of time with the defendant”; (3) Dr. Soper’s arrogance
was “stunn[ing]”; (4) they were “sloppy in their approach” and “cavalier in their
attitudes”; and (5) they applied a “fatally flawed procedure” in a “lazy, haphazard,
inconsistent manner every step of the way.” Defendant also asserts that the prosecutor
derided the Rorschach test administered by Dr. Vanoni. He contends the prosecutor’s
remarks constituted a personal attack “not worthy of his office,” were not based on the
evidence, and were therefore an improper expression of his personal beliefs. Again, we
disagree.

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“Harsh and vivid attacks on the credibility of opposing witnesses are permitted,
and counsel can argue from the evidence that a witness’s testimony is unsound,
unbelievable, or even a patent lie. [Citation.] Although defendant singles out words and
phrases, or at most a few sentences, to demonstrate misconduct, we must view the
statements in the context of the argument as a whole. [Citation.]” (People v. Dennis
(1998) 17 Cal.4th 468, 522; accord, People v. Huggins (2006) 38 Cal.4th 175, 253
[suggesting mental health expert’s testimony was “so poorly founded that it amounted to
malpractice” was permissible argument].) “Ultimately, the test for misconduct is whether
the prosecutor has employed deceptive or reprehensible methods to persuade either the
court or the jury. [Citation.]” (Dennis, at p. 522.) The thrust of the prosecutor’s
argument and the challenged comments in particular, was that the experts’ testimony was
“not worthy of credibility.” Although his lengthy argument was harsh and strident, it did
not employ deceptive or reprehensible methods to persuade the jury to reject the
testimony of the experts as lacking in credibility. Consequently, defense counsel cannot
be faulted for failing to object.
D. Reference to Facts Outside the Record
Finally, defendant argues that the following comment by the prosecutor
encouraged the jury to rely on matters outside the record: “With all due respect to
Dr. Soper, maybe he should play Dungeons and Dragons every once in awhile. Maybe
he should go down to the fantasy book section of Borders. Maybe he should play video
games. None of you do that, not before you reach your decision in this case. You can’t.
I’m not asking you to check anything. But for Soper to say that no one could have made
this up who hadn’t experienced it is ridiculous. Any [12] year old could have written
some of that stuff. Any beat poet from the [1950’s] could have come up with some of
this crap about the bird in the tree and it’s talkin’ to me and the spring and the -- come
on.”
Defendant’s argument lacks merit. The prosecutor’s argument was directly related
to his cross-examination of Dr. Soper as to whether Dungeons and Dragons, and fantasy
novels and computer games could have informed defendant regarding demons, vampires,

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and demi-gods enabling defendant to “fake” his psychosis. Dr. Soper rejected the
assertion, but admitted it was theoretically possible for someone who was not psychotic
or delusional to have written the types of things written by defendant. The prosecutor’s
argument was a fair comment on the evidence and defense counsel was not ineffective in
failing to object to it.
III. There Was No Instructional Error
The court instructed the jury, in relevant part, on legal insanity pursuant to
CALJIC No. 4.00: “A person is legally insane when by reason of mental disease or
mental defect he was incapable of distinguishing right from wrong at the time of the
commission of the crime.” Defendant contends the court’s insanity instruction was
erroneous because it did not address whether defendant knew his specific criminal acts
were wrong, and failed to clarify that the term “wrong” includes both moral and legal
wrong.
Preliminarily, we address the People’s assertion that defendant waived this
instructional issue by failing to object to the instruction given or request a clarifying
instruction below. Defendant concedes that generally, a claim of instructional error is
waived if an appellant failed to object or request a clarifying instruction in the trial court.
(See People v. Hillhouse (2002) 27 Cal.4th 469, 503.) However, he argues that where the
instructional error affects an appellant’s substantial rights, failure to object does not bar
appellate review. (§ 1259; People v. Flood (1998) 18 Cal.4th 470, 482, fn. 7.) He asserts
that the instruction given required him to prove the additional element that he could not
distinguish right from wrong in the abstract, the effect of which was to lessen the
prosecution burden of proof and thereby constitutes structural error. (Sullivan v.
Louisiana (1993) 508 U.S. 275, 280-282.) He also asserts that the court’s failure to
instruct that “wrong” includes legal and moral wrong permitted his conviction without
mens rea or wrongful intent and also rises to the level of structural error. Alternatively,
defendant argues that defense counsel’s failure to object was ineffective assistance of
counsel.

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Even assuming the failure to object or request a clarifying instruction below
constituted waiver, we address the merits of defendant’s instructional error claim as an
aspect of his assertion of incompetence of counsel.
In People v. Kelly (1973) 10 Cal.3d 565, 574, our Supreme Court stated, “Insanity,
under the California [M’Naghten] test, denotes a mental condition which renders a person
incapable of knowing or understanding the nature and quality of his act, or incapable of
distinguishing right from wrong in relation to that act. [Citation.]” More recently, in
People v. Jablonski (2006) 37 Cal.4th 774, 831, the court considered the argument that
CALJIC No. 4.00, as given here, erroneously failed to inform the jury that a defendant’s
incapacity to distinguish right from wrong must be in relation to the crime committed,
and not a general inability to do so. As in the instant case, prior to being instructed with
the CALJIC No. 4.00, the trial judge in Jablonski instructed the jurors, “ ‘You may
consider evidence of [defendant’s] mental condition before, during and after the time of
the commission of the crime as tending to show the defendant’s mental condition at the
time the crime was committed.’ ” Following the CALJIC No. 4.00 instruction, the court
instructed, in part: “ ‘If during the commission of the crime the defendant was incapable
of understanding that his act was morally wrong or was incapable of understanding that
his act was unlawful, then he is not criminally liable.’ ” (Jablonski, at p. 831.) In
rejecting the defendant’s argument, the court reasoned, “[e]ven if we assume that
defendant’s strained reading of CALJIC No. 4.00 is plausible, any ambiguity in that
instruction is resolved when it is considered in context of these further instructions
because they clearly focus the jury’s attention on defendant’s capacity to distinguish right
from wrong at the time of the commission of the crimes.” (Jablonski, at pp. 831-832.)6
Defendant argues that the trial court in this case did not give an instruction like
that given in Jablonski, which followed the CALJIC No. 4.00 instruction, and the
6 We note that effective January 1, 2006, the California Judicial Counsel adopted
CALCRIM No. 3450 to replace CALJIC No. 4.00. CALCRIM No. 3450 provides in
part, the defendant is legally insane if he or she “did not know or understand that (his/her)
act was morally or legally wrong.”

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instructions given included no language as to whether defendant understood that “his act”
was wrong. Thus, he argues that based on the instructions given, the jury could have
found him sane if they concluded he had the capacity to distinguish right from wrong “in
general” at the time of his offenses. Defendant’s argument has strained the interpretation
of the instructions given beyond the bounds of reason. Despite the fact that the
instructions given do not refer to “this act,” as in Jablonski, the instructions clearly focus
the jury on defendant’s capacity to distinguish right from wrong at the time his crimes
were committed.
Next, defendant contends that the version of CALJIC No. 4.00 given in this case
erroneously failed to denote whether “wrong” referred to legal or moral wrong. The
parties appear to agree that the term “wrong” as used in section 25, subdivision (b)
includes both moral wrong and legal wrong. (People v. Coddington (2000) 23 Cal.4th
529, 608; People v. Torres (2005) 127 Cal.App.4th 1391, 1402.) However, CALJIC No.
4.00 is a standard instruction which correctly states the law. (People v. Kelly, supra,
1 Cal.4th at p. 535; Torres, at p. 1402.) Where, as here, the instruction given was legally
correct and responsive to the evidence, defendant cannot complain that the instruction
was incomplete if he failed to request an appropriate amplifying or clarifying instruction.
(Kelly, at p. 535.)
Moreover, nothing in the record or in the other instructions given excluded from
the jury’s consideration defendant’s ability to distinguish moral right from wrong.
Dr. Vanoni expressly found that defendant was unable to distinguish legal and moral
right from wrong. In addition, neither the evidence nor the arguments of counsel
distinguished between defendant’s ability or inability to distinguish the legal
wrongfulness of his acts from the moral wrongfulness of those acts, and defense counsel
did not rely on a theory of moral wrong in urging that defendant be found legally insane.
Defense counsel was not ineffective in failing to request additional instructions clarifying
the defendant’s capacity to differentiate right from wrong; the word “wrong” denotes
both moral wrong and legal wrong.

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IV. There Was Sentencing Error
Finally, in reliance on Blakely v. Washington, supra, 542 U.S. 296, Apprendi v.
New Jersey (2000) 530 U.S. 466 and United States v. Booker (2005) 543 U.S. 220,
defendant contends the trial court’s imposition of the upper term on counts 1, 2, 4, 6, 7, 8,
and 11 was erroneous because it was based on facts not admitted by him or found true by
a jury in violation of his Sixth Amendment right to jury trial and his Fourteenth
Amendment right to due process. In Apprendi, the United States Supreme Court applied
the Sixth Amendment and held that other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the statutory maximum must be tried to a jury
and proved beyond a reasonable doubt. (Apprendi, at p. 490.) For this purpose, the
statutory maximum is the maximum sentence that a court could impose based solely on
facts reflected by a jury's verdict or admitted by defendant. When a sentencing court’s
authority to impose an enhanced sentence depends upon additional fact findings, there is
a right to a jury trial and proof beyond a reasonable doubt on the additional facts.
(Blakely, at pp. 301-305.) In Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct.
856, 860], the United States Supreme Court held that by “assign[ing] to the trial judge,
not to the jury, authority to find the facts that expose a defendant to an elevated ‘upper
term’ sentence,” California’s determinate sentencing law “violates a defendant’s right to
trial by jury safeguarded by the Sixth and Fourteenth Amendments.” (Cunningham, at
p. 860, overruling on this point People v. Black (2005) 35 Cal.4th 1238.)
Finally, in Washington v. Recuenco (2006) 548 U.S. ___ [126 S.Ct. 2546, 2551-
2553], the United States Supreme Court held that Blakeley error was not structural error,
but instead subject to harmless error analysis under Chapman v. California (1967)
386 U.S. 18. (Accord, People v. Sengpadychith (2001) 26 Cal.4th 316, 327.) Thus, any
error the trial court made in considering an aggravating circumstance is harmless under
Chapman, if we conclude, beyond a reasonable doubt, the jury would have found that
circumstance true.
The trial court decided to impose the aggravated term after balancing three
aggravating factors against one mitigating factor. In aggravation, the court found the

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following factors: (1) the victims’ vulnerability (Cal. Rules of Court, rule 4.421(a)(3));
(2) the imposition of concurrent terms where consecutive terms could have been imposed
(rule 4.421(a)(7)); and (3) the defendant was on probation for assault, a crime of
violence, at the time he committed this offense (rule 4.421(b)(4)). Against these
aggravating factors, the court treated defendant’s mental illness as a mitigating factor.
The trial court’s reliance on the first aggravating factor to impose the upper term
was inappropriate under Cunningham. Even if we were to find that the other two factors
relied upon were valid under Cunningham or harmless under Recuenco, we are unable to
find under Chapman that we are satisfied beyond a reasonable doubt the trial court would
have imposed the upper term even if it had not considered the first factor. Thus,
imposition of the upper term was inappropriate, and we vacate the sentence and remand
for further proceedings on this issue.7
7 We reject the People’s argument that appellant waived this issue by failing to raise it
below. Unlike the defendant in People v. Hill (2005) 131 Cal.App.4th 1089, 1103, who
waived a Blakely challenge by failing to raise it at his sentencing, which occurred after
Blakely but before Black, appellant was sentenced after Black, at which point a Blakely
objection would have been futile under controlling law that the court was compelled to
follow. Under these circumstances, appellant did not waive the issue. (People v. Chavez
(1980) 26 Cal.3d 334, 350, fn. 5; City of Long Beach v. Farmers & Merchants Bank
(2000) 81 Cal.App.4th 780, 784-785.)

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D ISPOSITION
The sentence is vacated and the matter remanded for resentencing. In all other
respects, the judgment is affirmed.
SIMONS, Acting P.J.
We concur.
GEMELLO, J.
MILLER, J.∗
∗ Judge of the San Francisco County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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