People V Ocular Ca41
Filed 7/24/25 P. v. Ocular CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D082872
Plaintiff and Respondent,
v.
(Super. Ct. No. SCD282186)
EMMANUEL OCULAR,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Marian F. Gaston, Judge. Affirmed.
Joseph Doyle, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Collette
C. Cavalier and Sahar Karimi, Deputy Attorneys General, for Plaintiff and
Respondent.
Emmanuel Ocular shot a woman twice in the back as she was standing
next to her mother in the parking lot of their apartment complex. He fled the
scene; disposed of the gun; and later told a court appointed psychiatrist that
he was a heavy methamphetamine user, that he had been hearing voices at
various times throughout his life, and that he shot the woman because he
believed that she was a “demon person possessed by the devil” that could
“shape shift” into other people. A jury convicted Ocular of attempted murder,
assault with a firearm, and being a felon in possession of a firearm. In a
subsequent, bifurcated proceeding, the jury found that Ocular was sane at
the time he committed the foregoing offenses. He now asserts the trial court
incorrectly instructed the jury, based on CALCRIM No. 3450, regarding the
impact of his voluntary use of intoxicants in determining whether he was
legally insane when he committed the crimes, thereby violating his rights to
due process and a fair trial. We disagree and affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
Because Ocular’s arguments are limited to the accuracy of the
instructions to the jury on insanity, we provide only a brief overview of the
offense, and focus our factual discussion on the portions of the record related
to Ocular’s claim that he was legally insane.
A. The Shooting
On June 13, 2019, at approximately 9:30 p.m., Ocular approached the
victim, Daniela Millan, from behind and shot her twice in the back as she
was helping her mother remove luggage from her car. Millan had no
interaction with Ocular before the shooting, however, Millan’s cousin had
seen Ocular “pacing” in the apartment complex parking lot prior to the
shooting. Ocular had family that lived in an apartment complex across the
street and the victim’s family recognized him. Immediately after the
shooting, Ocular walked to his car and drove away.
The police apprehended Ocular at an office building later that night.
One of the officers who first contacted him was wearing a body-worn camera
2
and the prosecution played the video for the jury. Ocular alerted the police to
the approximate location of the gun he used to shoot Millan, and the police
found the gun in some bushes about half a mile away from where Ocular was
apprehended.
The People charged Ocular with one count of attempted murder in
violation of Penal Code 1 section 187, subdivision (a); one count of assault
with a semi-automatic firearm in violation of section 245, subdivision (b); and
one count of being a felon in possession of a firearm in violation of section
29800, subdivision (a)(1). The People further alleged various firearm
enhancements as to the first two charges, and asserted Ocular had a serious
felony prior and a strike prior. Ocular pled not guilty and not guilty by
reason of insanity. The court bifurcated the trial into a guilt phase and an
insanity phase.
B. Guilt Phase Mental State Evidence
During the guilt phase, Ocular did not dispute that he shot Millan.
Rather, his primary defense was that he did not have the requisite specific
intent to kill a human, due to either voluntary intoxication or a mental
disease or disorder. 2
1. Defense Expert Dr. Alan Abrams
Ocular called Dr. Alan Abrams to testify in his defense. The court
assigned Dr. Abrams to conduct a psychological exam of Ocular to determine
1 Further unspecified statutory references are to the Penal Code.
2 During the guilt phase, the trial court instructed the jury with
CALCRIM Nos. 3426 and 3428, which stated, respectively, that the jury could
consider evidence of voluntary intoxication or a mental disease or disorder
only in deciding whether Ocular acted with the specific intent to kill a person.
Defense counsel argued, for the guilt phase, that it did not matter whether
Ocular was impaired because of long-term drug use.
3
whether he was sane in 2019. Because of the Covid-19 outbreak, Dr. Abrams
was not able to conduct the interview until April of 2021, approximately 33
months after the shooting. By that time, Ocular had been on an
antipsychotic medication for about a year and a half.
Ocular told Dr. Abrams that he used methamphetamine and “many
other drugs.” He said he heard voices at various times in his life but, starting
in 2018, he heard “troubling voices from angels and demons and supernatural
beings.” One of the voices told him that he needed to jump off the Imperial
Beach pier to save his family, which he did.
Ocular continued to use methamphetamine and other drugs after the
pier incident, and began carrying a gun because he believed the Illuminati
were after him. He was staying with his uncle around the time of the
shooting, but his uncle kicked him out because he was frightened by Ocular
talking about angels and demons. Ocular saw Millan in the parking lot and
believed she was part of the cosmic world and could shape shift into other
people. Ocular told Dr. Abrams that the shape shifter “reached out” to him,
and he shot her.
Dr. Abrams opined that Ocular was psychotic and, more specifically,
schizophrenic. He acknowledged that many factors, including substance
abuse, can play a role in psychosis, but asserted “that after a period of acute
intoxication and acute withdrawal has been met, and the person remains
with the symptoms 30 days after last use, the diagnosis is schizophrenia
continuous.” Dr. Abrams rejected the notion that using methamphetamine
was a form of “self-medication,” but noted that drug use is common in
schizophrenic individuals because schizophrenia destroys the brain’s ability
to feel happiness. He explained that drugs may offer a feeling of euphoria
4
that those suffering from schizophrenia cannot otherwise obtain, but that
ultimately, they make the condition worse.
Dr. Abrams reviewed the body-worn camera footage from the night of
the shooting, along with Ocular’s uncle’s statement and other
contemporaneous materials, and concluded that Ocular was not acting
rationally when he shot Millan. In his view, Ocular was “in the world of
make believe” and his actions were based on that. Dr. Abrams also reviewed
hospital records and noted that Ocular had been placed on a psychiatric hold
in 2018, which suggested to him that Ocular was mentally ill prior to the
shooting.
On cross-examination, Dr. Abrams conceded that Ocular also said that
the voices told him to kill himself—“that he was gutless and he should cut his
stomach open”—but that he did not do that. Dr. Abrams also said that
Ocular told him the victim “switch[ed] into another person that he called
Norma.” Ocular believed the person to be an actual human being when he
shot her, although he clarified that Ocular believed the victim was possessed
by a devil.
Dr. Abrams also reviewed a video and transcript of a police
interrogation of Ocular after the shooting. He conceded that Ocular initially
denied that anything happened. Ocular eventually admitted that he did
shoot someone, and that he tossed the gun, but did not speak of angels or
demons or say that was the reason he shot Millan. Dr. Abrams asserted this
was because the officer interrogating Ocular did not give him an opportunity
to explain. Dr. Abrams agreed, however, that some of Ocular’s actions (i.e.,
fleeing the scene and disposing of the gun) appeared to show “goal-directed
behaviors.”
5
2. Prison Psychologist Shanda Angioli
The People called Shanda Angioli as a rebuttal witness. Angioli
worked as a clinical psychologist for the Department of Corrections and
Rehabilitation. She evaluated Ocular when he was first booked into jail on
June 14, 2019. She said that Ocular did not appear to be responding to any
internal stimuli and he denied experiencing auditory hallucinations. He did
not have difficulty answering questions and his thought process was linear.
He did tell Angioli about his previous suicide attempt, when he jumped off
the pier. He was placed in Enhanced Observation Housing as a result, but
his risk level was “low.”
Ocular said that he used alcohol every day and used methamphetamine
often. Angioli diagnosed Ocular with alcohol-use disorder and
methamphetamine-use disorder.
3. Detective Christopher Tews
Christopher Tews was the detective assigned to investigate the
shooting. He interviewed Ocular on the night of the shooting, at
approximately midnight. Ocular was able to provide background information
about himself and had no trouble answering the questions asked. Detective
Tews did not observe any behaviors that would lead him to believe Ocular
needed to be medically evaluated. Ocular did speak of a person shape
shifting into another person, but Detective Tews testified on cross
examination that he did not consider that a nonsensical response.
The jury found Ocular guilty of all charges and found true the
associated firearm allegations.
C. Sanity Phase
The trial court then turned to the sanity phase of the trial. Before
allowing additional evidence, the trial court instructed the jury with a
modified version of CALCRIM No. 3450, informing them what they should
6
consider in evaluating whether Ocular was sane when he committed the
crimes. The trial court also informed the jury that they could rely on
evidence from the guilt phase in assessing whether Ocular was sane. The
trial court reiterated the CALCRIM No. 3450 instruction partway through
the testimony, at the request of both attorneys, and again before the jury
began deliberating.
1. Defense Expert Dr. Abrams
Dr. Abrams testified again during the sanity phase. He explained that
even people who are severely mentally ill can appear to function normally at
certain times. For example, they may do routine tasks like driving without
any problems. They may also carry on a lengthy conversation without any
indication of their distorted perceptions, particularly if the topics discussed
do not touch on their delusions. In addition, some mentally ill people may
avoid talking to others, particularly psychiatrists, about their mental illness
or delusions, because they do not want to be treated. Prison gangs also
frequently tell their members not to talk about mental illness.
Dr. Abrams distinguished between “substance-induced” short-term
psychosis, and longer-term persistent psychosis. He explained that
neurotoxins, like alcohol and methamphetamine, can cause permanent brain
damage that leads to “settled insanity.” The latter is typically diagnosed
after an individual has been sober for 30 days but continues to experience
psychosis. Because Ocular had not been using substances for more than 30
days in jail, Dr. Abrams was able to make a diagnosis of schizophrenia. Dr.
Abrams acknowledged that drugs are available in most jails but opined that
Ocular did not appear to be intoxicated during his interview, and therefore
assumed that he had been sober for more than 30 days.
Dr. Abrams opined that neurotoxic drugs “played a significant role” in
Ocular’s illness, “but not the only role.” He explained that the scientific
7
community agreed “we [cannot] tell whether there are genetic factors,
individual factors, life experience factors, nanotoxicities that cause
psychosis,” but there was agreement that “drugs make psychosis worse.”
When Ocular had been evaluated in the past, he had been under the
influence of neurotoxins, and there had not been a 30-day period after during
which the treating physician or psychiatrist could rule out schizophrenia
continuous.
He explained further, “There’s no blood test yet where we can say, you
have these three snips [of] nucleotide substitutions that mean you have the
genes for schizophrenia. So that makes it impossible for us to say whether
people who become psychotic from smoking marijuana; from using LSD; from
using methamphetamine; who become psychotic and stay psychotic beyond
30 days are psychotic because they have the genetic predisposition plus
damage to their brain cells, which results in the illness, or because everybody
who took those drugs would become psychotic for the rest of their life.”
However, he pointed out that some people use those same drugs and do not
become permanently psychotic.
Dr. Abrams reiterated his conclusion that Ocular had “a serious mental
disease,” which he diagnosed as schizophrenia continuous. Based on his
review of the contemporaneous records, he believed Ocular demonstrated
that same psychosis when he committed the underlying crime. Dr. Abrams
explained that, at the time of the shooting, Ocular believed he was shooting a
dangerous demon or possessed being. In that sense, Ocular believed he was
doing the right thing, even if he also understood that killing a human was
wrong.
Dr. Abrams again agreed that Ocular demonstrated some goal-oriented
behavior after the shooting but explained that a person may commit a
8
seemingly normal act for a delusional reason. During his interview, Ocular
told Dr. Abrams, “I saw the shadow go into street. I drove away chasing the
shadow which disappeared. I followed the shadow as far as I could. The
voices said they were going to get my nephew. I saw the cops, and the angel
told me to take off. I was in a panic. I fired at a demon in the car next to me.
I ran out of gas.” In Dr. Abrams’ opinion, that was delusional thinking
dictated by mental illness.
On cross-examination, Dr. Abrams agreed that methamphetamine can
cause delusions; that he was the first to diagnose Ocular with schizophrenia;
that Ocular had previously been diagnosed with substance-induced psychotic
disorder; and that while they are different diagnoses, the symptoms can
mimic one another. He said that Ocular told him he experienced auditory
delusions while using methamphetamine, but it was not clear to him whether
Ocular’s symptoms started only after he used methamphetamine. Dr.
Abrams noted that Ocular began using drugs at the age of 14, and did not
have a mental health diagnosis at that time.
Dr. Abrams testified that the DSM says that drug use by itself is
unlikely to cause persisting psychosis. When pressed, Dr. Abrams explained,
“The position of the [American Psychiatric Association] that I’ve been trying
to testify to is that no one can say that use of drugs causes the mental illness.
Or the view of the APA is, therefore, that people who develop persistent
mental illness and have a history of neurotoxic drug abuse, that the drugs
have accelerated the onset of the illness.”
2. Prosecution Fact Witnesses
The prosecution presented several fact witnesses in response to
Ocular’s asserted insanity defense, primarily centered on Ocular’s prior
mental health evaluations.
9
Katherine Rodriguez, a clinical psychologist, evaluated Ocular in prison
in 2012. Ocular was referred for mental health services because of
depression and trouble sleeping. He did not meet the criteria for mental
health housing but wanted therapy for his drug addiction.
Yoshinori Sato, a clinical psychologist, evaluated Ocular in prison in
September 2015. Ocular requested a mental health referral for anxiety,
anger, and irritability. He was alert and oriented and did not report any
prior mental health history.
Elizabeth Harris, a clinician, evaluated Ocular in prison in 2016. She
noted that Ocular had been on medication for anxiety and had participated in
a mental health program twice, in 2002 and 2015, for anxiety and sleep
issues. He did not disclose any other mental health treatment or history.
Takeshia Niday, a board-certified psychiatrist, evaluated Ocular at the
hospital in 2018 after he jumped off the pier. Ocular was placed on a 72-hour
psychiatric hold based on the suicide attempt. Ocular reported that he had
been using methamphetamine and that he jumped because he thought his
life was in danger. A toxicology test came back positive for alcohol, opiates,
and cocaine.
When Niday spoke with Ocular, his thought process was linear and
goal oriented. She diagnosed Ocular with “psychotic disorder not otherwise
specified with several rule outs including substance-induced psychosis,
chronic paranoid schizophrenia, and schizoaffective disorder.” She explained
that a “rule out” is something a psychiatrist would take into consideration
and try to rule in or out with further evaluation and treatment. Niday
thought it was likely that Ocular’s psychosis was drug induced and noted
that it did resolve while he was hospitalized.
10
Kyle Thorstenson supervised Ocular on parole from 2018 to 2019.
Ocular had to submit to regular drug testing. Ocular consistently tested
negative and maintained employment during that time.
Rodney Thomas, a police officer, contacted Ocular during a traffic stop
in May 2019. Ocular followed instructions and Thomas recalled that there
was nothing remarkable about the stop.
Charmaine Solmerano, a registered nurse, evaluated Ocular in San
Diego County jail in 2019. Ocular was calm, cooperative, and verbalized no
complaints.
Ryanne Colbert, a licensed psychologist, evaluated Ocular on July 3,
2019. Ocular reported having anxiety and post-traumatic stress disorder. He
denied seeing hallucinations at that time but reported that he had
hallucinated in the past and believed his hallucinations were initiated by his
substance use.
3. Prosecution Expert Stacey Berardino
Stacey Berardino, a clinical and forensic psychologist, testified as an
expert for the prosecution. Berardino was appointed by the court to provide a
sanity evaluation. She reviewed the relevant discovery and interviewed
Ocular in prison in April 2021.
Berardino assessed Ocular with the Miller Forensic Assessment of
Symptoms Test (M-FAST). Ocular’s score was “really elevated,” which
indicated that he could be exaggerating his symptoms.
Ocular said that he started drinking alcohol at 5 years old and was
drinking regularly by 14. He said the last time he drank was one week prior,
and that he had been drinking weekly while incarcerated. He also said that
he used methamphetamine in prison, although it was not clear when this
was.
11
Berardino opined that Ocular suffered from multiple substance abuse
disorders, including amphetamine, alcohol, marijuana, and cocaine. She also
made a rule-out diagnosis for mood disorder and psychotic disorder. Those
were rule-out because she did not have the opportunity to evaluate Ocular
while he was not abusing substances. She could not diagnose schizophrenia
for the same reason; substance abuse had always been and still was present.
Ocular did speak of demons during the evaluation, and Berardino said
there was no doubt that there were symptoms of psychosis when Ocular shot
Millan. However, she believed that Ocular could understand the nature and
quality of his act. He knew that he was in trouble when he saw the police
officers, and he knew that he was not allowed to possess a gun.
After hearing the evidence and argument the jury found that Ocular
was sane at the time he committed the crimes.
D. Sentencing
Ocular waived his right to a jury trial as to the allegations regarding
his prior conviction and the aggravating factors for sentencing. The trial
court found that he had a prior conviction that was both a serious felony and
a strike. The court declined to find that the victim was vulnerable but found
that the prosecution had proven four other aggravating factors beyond a
reasonable doubt: that Ocular had been convicted of numerous other crimes;
that he had served a state prison prior; that he was on parole at the time of
the shooting; and, that his prior performance on parole was unsatisfactory.
The trial court sentenced Ocular to 25 years to life, plus a determinate
term of 15 years 4 months.
Ocular filed a timely notice of appeal.
12
II. DISCUSSION
Ocular’s sole assertion on appeal is that the trial court incorrectly
instructed the jury on the role of intoxicants in determining whether he was
sane when he committed the crimes.
A. Relevant Legal Principles
Section 25 sets forth the parameters of an insanity defense and
provides, in relevant part, “this defense shall be found by the trier of fact only
when the accused person proves by a preponderance of the evidence that he
or she was incapable of knowing or 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).) “Our Supreme Court has
interpreted this statutory language to mean that insanity can be shown
under either the ‘nature and quality’ prong or the ‘right from wrong’ prong of
the test.” (People v. McCarrick (2016) 6 Cal.App.5th 227, 246 (McCarrick).)
“If a defendant pleads both not guilty and not guilty by reason of
insanity, the trial is bifurcated.” (McCarrick, supra, 6 Cal.App.5th at p. 246.)
If the jury finds the defendant guilty during the guilt phase, the trial then
proceeds to the sanity phase, where the defendant must prove either that he
or she was “incapable of knowing or understanding the nature and quality of
his or her act” or that he or she was incapable of “distinguishing right from
wrong” at the time he or she committed the crime. (Ibid.) “Although mental
illness (or defect) may cause insanity, the concepts are different. Mental
illness is a medical diagnosis; it alone does not necessarily establish legal
insanity.” (People v. Kelly (1992) 1 Cal.4th 495, 540.) Rather, the defendant
must establish the illness made him or her legally insane under the foregoing
statutory test. (Ibid.)
13
Section 29.8 puts certain limitations on the insanity defense, and
precludes application “solely on the basis of a personality or adjustment
disorder, a seizure disorder, or an addiction to, or abuse of, intoxicating
substances.” The statute, originally passed as section 25.5 in 1994, changed
the previous rule, which allowed a jury to find a person insane based on long-
term voluntary intoxication. (See People v. Robinson (1999) 72 Cal.App.4th
421, 427 (Robinson); Senate Bill No. 40 (Stats. 1993-1994, 1st Ex. Sess., ch.
10, §1) [original statute]; Senate Bill No. 1171 (Stats. 2012, ch. 162, § 120)
[renumbering].)
“The expressed purpose of the statute [was] to narrow the availability
of the insanity defense.” (Robinson, supra, 72 Cal.App.4th at p. 427.) “By
enacting this statute, the Legislature expressed its intent that individuals
rendered insane solely because of their substance abuse should be treated
differently than those afflicted by mental illness through no conscious
volitional choice on their part.” (Id. at p. 428.)
Accordingly, section 29.8 “makes no exception for brain damage or
mental disorders caused solely by one’s voluntary substance abuse but which
persists after the immediate effects of the intoxicant have dissipated. Rather,
it erects an absolute bar prohibiting use of one’s voluntary ingestion of
intoxicants as the sole basis for an insanity defense, regardless whether the
substances caused organic damage or a settled mental defect or disorder
which persists after the immediate effects of the intoxicant have worn off.”
(Robinson, supra, 72 Cal.App.4th at p. 427.)
However, “[w]here the mental disease or defect is caused in part by an
addiction or abuse of alcohol,” the defendant may still be entitled to an
insanity defense and whether the defense applies becomes a question of fact
14
for the jurors to resolve. (People v. Cabonce (2009) 169 Cal.App.4th 1421,
1436 (Cabonce).)
B. CALCRIM No. 3450
CALCRIM No. 3450 sets out the model jury instruction for legal
insanity. It provides two bracketed instructions addressing the impact of
substance abuse on the asserted defense:
“[Special rules apply to an insanity defense involving
drugs or alcohol. Addiction to or abuse of drugs or
intoxicants, by itself, does not qualify as legal insanity.
This is true even if the intoxicants cause organic brain
damage or a settled mental disease or defect that lasts after
the immediate effects of the intoxicants have worn off.
Likewise, a temporary mental condition caused by the
recent use of drugs or intoxicants is not legal insanity.]
“[If the defendant suffered from a settled mental disease
or defect caused by the long-term use of drugs or
intoxicants, that settled mental disease or defect combined
with another mental disease or defect may qualify as legal
insanity. A settled mental disease or defect is one that
remains after the effect of the drugs or intoxicants has
worn off.]”
The associated Bench Notes to CALCRIM No. 3450 state:
“Give the bracketed paragraph that begins with ‘Special
rules apply’ when the sole basis of insanity is the
defendant’s use of intoxicants. [(§ 29.8; Robinson, supra, 72
Cal.App.4th at pp. 427–428).] If the defendant’s use of
intoxicants is not the sole basis or causative factor of
insanity, but rather one factor among others, give the
bracketed paragraph that begins with ‘If the defendant
suffered from a settled mental. (Id. at p. 420, fn 5).’ ”
C. Instruction As Given in Ocular’s Case
In the present case, the trial court noted the bracketed portions of
CALCRIM No. 3450 and stated that it read the bench notes to suggest that
the two portions were offered as alternatives. The court invited counsel to
15
consider the bracketed portions and indicated that it was inclined to give
both. The prosecutor agreed, but Ocular’s counsel asserted the trial court
should give only the second portion. The trial court ultimately decided to
give both portions, over defense counsel’s objection.
Accordingly, the trial court instructed the jury, in relevant part as
follows:
“You have found the defendant guilty of attempted
murder, assault with a deadly weapon, and unlawful
possession of a firearm. Now you must decide whether he
was legally insane when he committed the crimes.
“The defendant must prove that it is more likely than
not that he was legally insane when he committed the
crimes.
“The defendant was legally insane if:
“1. When he committed the crimes, he had a mental
disease or defect;
“AND
“2. Because of that disease or defect:
“• he was incapable of knowing or understanding
the nature and quality of his act,
“• or he was incapable of knowing or understanding
that his act was morally wrong,
“• or he was incapable of knowing or understanding
that his act was legally wrong.
“Do not base a finding of not guilty by reason of insanity
solely on the basis of a personality disorder, adjustment
disorder, seizure disorder, or an abnormality of personality
or character made apparent only by a series of criminal or
antisocial acts.
16
“Special rules apply to an insanity defense involving
drugs or alcohol. Addiction to or abuse of drugs or
intoxicants, by itself, does not qualify as legal insanity.
This is true even if the intoxicants cause organic brain
damage or a settled mental disease or defect that lasts after
the immediate effects of the intoxicants have worn off, if
that brain damage or settled mental disease or defect was
caused solely by the defendant’s voluntary substance use.
Likewise, a temporary mental condition caused by the
recent use of drugs or intoxicants is not legal insanity.
“If the defendant suffered from a settled mental disease
or defect caused by the long-term use of drugs or
intoxicants, that settled mental disease or defect combined
with another mental disease or defect may qualify as legal
insanity. A settled mental disease or defect is one that
remains after the effect of the drugs or intoxicants has
worn off.”
D. Analysis
Ocular asserts the foregoing instruction was erroneous for two reasons.
First, the instruction improperly precluded a finding of insanity if the
insanity was even partially caused by drug use. Second, the instruction
improperly precluded a finding of insanity based on a singular mental disease
or defect caused partially by drug use.
We reject each of these contentions. As an initial matter, we note that
Ocular likely forfeited each of these challenges by failing to raise them in the
trial court. (See McCarrick, supra, 6 Cal.App.5th at p. 250 [defendant may
not argue instruction was too general or incomplete absent a request in the
trial court for clarifying or amplifying language].) When the parties first
discussed CALCRIM No. 3450, defense counsel objected to the trial court
giving both portions of the bracketed instructions dealing with substance use,
but did not suggest any changes or additions to the language. During a
subsequent discussion, defense counsel asked the court to read section 29.8,
17
instead of repeating the instruction, and stated, in reference to the
instruction, “I think it is confusing for the jury.” As Ocular concedes, these
arguments were not “as specific” as the claim he now raises on appeal.
However, because Ocular asserts that his arguments remain cognizant
on appeal by virtue of impacting his substantial rights and that his trial
counsel was ineffective for failing to object, we exercise our discretion to reach
the merits of his assertions. We are not persuaded by either.
1. Standard of Review
“We review instructional error claims under a de novo standard of
review.” (People v. Lapenias (2021) 67 Cal.App.5th 162, 175.) “The proper
test for judging the adequacy of instructions is to decide whether the trial
court ‘fully and fairly instructed on the applicable law.’ ” (People v. Martin
(2000) 78 Cal.App.4th 1107, 1111.) To do this, we assess the full set of
instructions, viewing the challenged instruction in context with the others to
determine whether there was a reasonable likelihood the jury applied the
challenged instruction in an impermissible manner. (People v. Jennings
(2010) 50 Cal.4th 616, 677.) “We presume that jurors understand and follow
the court’s instructions.” (People v. Pearson (2013) 56 Cal.4th 393, 414.)
2. The Instruction Did Not Improperly Preclude a
Finding of Insanity Based on a Mental Defect or
Disease Caused Partially by Intoxication
Ocular first asserts that the instruction was improper, or incomplete,
because it did not adequately instruct the jury that it could find him legally
insane even if his intoxication was a partial cause of the mental defect or
disease giving rise to his insanity defense.
He points first to the last statement of the first bracketed paragraph
which instructed the jury, consistent with CALCRIM No. 3450 that “a
temporary mental condition caused by the recent use of drugs or intoxicants
18
is not legal insanity.” He asserts this sentence did not properly inform the
jury that it is not legal insanity only if the temporary mental condition is
solely cause by drugs or intoxicants. We disagree.
Ocular focuses in on the last sentence of the first bracketed paragraph
and, in doing so, he fails to read the instruction as a whole, as required by the
law. After stating that special rules apply to an insanity defense involving
drugs or alcohol, the first bracketed paragraph informed the jury that the
“abuse of drugs or intoxicants, by itself, does not qualify as legal insanity.”
(Italics added.) The instruction then went on to explain that this is true even
if the substance abuse causes organic brain damage or a settled mental
disease or defect, “if that brain damage or settled mental disease or defect
was caused solely by the defendant’s voluntary substance use.” (Italics
added.) Notably, the trial court added the foregoing additional language to
the model CALCRIM instruction in this case, reminding the jurors that
organic brain damage or a settled disease or defect precluded an insanity
defense only if it was caused solely by voluntary substance use. The
instruction then concluded by telling the jury: “Likewise, a temporary mental
condition caused by the recent use of drugs or intoxicants is not legal
insanity.” (Italics added.)
Throughout the instruction, the jury was told, and reminded, consistent
with section 29.8, that Ocular could not prove insanity based solely on an
addiction to, or abuse of, intoxicating substances. Although the last sentence
is specific to a temporary mental condition, as opposed to a settled mental
disease or defect, the “likewise” at the start of the final sentence of the first
paragraph clearly indicates that sentence is to be read consistent with the
preceding statements, all of which specify, repeatedly, that the alleged
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damage or disease must be caused solely by substance abuse to be excluded
as the basis of an insanity defense.
Here, Ocular asserts, based on Dr. Abrams’s testimony that he was
suffering from a “long-standing mental disease or defect—schizophrenia—
and he was also a regular user of methamphetamine.” He argues that
substance abuse is not uncommon for individuals suffering from
schizophrenia, and that the jury was entitled to consider whether it was the
underlying schizophrenia, and not the use of intoxicants, that caused his
insanity. We see nothing in the instruction that would preclude the jury from
making such a determination.
If the members of the jury credited Dr. Abrams’s testimony and
believed that Ocular was schizophrenic, separate and apart from his drug
use, it follows that they would not have concluded that Ocular had a
temporary mental condition (i.e., temporary psychosis caused by intoxicants).
Rather, they would have concluded he had a settled mental disease or defect,
and then, according to the instruction, they would have had to consider
whether that settled mental disease or defect was caused solely by Ocular’s
extended use of intoxicants. 3 Such a determination would be consistent with
section 29.8, which precludes an insanity defense based solely on “an
addiction to, or abuse of, intoxicating substances.” (§ 29, subd. (b).)
3 Likewise, if the jury concluded that Ocular’s substance abuse caused
temporary psychosis, they still could have concluded that he also had a
separate settled disease, schizophrenia, that could qualify as the basis for an
insanity defense under the second bracketed paragraph of CALCRIM No.
3054, which discuss in more detail post.
20
Ocular likewise asserts the second bracketed paragraph of CALCRIM
No. 3450 precluded a finding of insanity based on a single mental disease or
defect that is caused, in part, by intoxication.
Again, Ocular relies on a single sentence in the instruction: “If the
defendant suffered from a settled mental disease or defect caused by the long-
term use of drugs or intoxicants, that settled mental disease or defect
combined with another mental disease or defect may qualify as legal
insanity.” He asserts this sentence informed the jury that if a settled disease
or defect is caused even partly by drug use, it must be combined with an
entirely separate disease or defect to establish an insanity defense. We
disagree. Like the first issue Ocular raises, the sentence must be read in
conjunction with the remaining portions of the instruction. Doing so, we
discern no error.
The second paragraph provides an alternative option to the defendant
for proving an insanity defense. After first informing the jury about the
limitations of section 29.8 in the first bracketed paragraph, namely that an
insanity defense cannot be based solely on the use of intoxicants, the second
bracketed paragraph of CALCRIM No. 3450 informed the jury that the
defendant could still prove insanity by demonstrating that he or she suffered
from another mental disease or defect that was not caused solely by the use of
intoxicants. Thus, if the jury credited Dr. Abrams’ testimony that Ocular
suffered from schizophrenia, it could have considered that diagnosis separate
from any psychosis induced by his substance abuse.
Ocular asserts the second paragraph of the instruction should have
repeated the word solely, stating instead, “If the defendant suffered from a
settled mental disease or defect caused solely by the long-term use of drugs or
intoxicants . . . .” Again, though, Ocular did not request such a modification
21
and, regardless, when read in conjunction with the preceding paragraph, it is
apparent that the use of intoxicants is preclusive only if it is the sole cause of
the resulting brain damage or mental disease or defect.
Here, after extensive testimony from two competing experts, the
prosecutor asserted that Ocular’s psychosis was induced by his drug use, and
argued, “the fact that Mr. Ocular used a lot of drugs from a very young age
and caused permanent organic brain damage does not mean he gets to avail
himself to this legal defense.” Neither that argument nor the instruction
indicated to the jury that it could not consider Dr. Abram’s testimony that
Ocular suffered from schizophrenia. However, the jury was also permitted to
consider whether and to what extent the schizophrenia was caused by
Ocular’s long-term use of intoxicants, and whether and to what extent the
schizophrenia or the use of intoxicants, alone, impacted Ocular’s ability to
understand the nature of his acts.
The instructions the trial court gave, when read in their entirety,
properly permitted the jury to conclude either that Ocular did understand the
nature of his act or that it was morally and legal wrong, or that any disease
or defect that impaired his ability to understand those things was caused
solely by his extended use of intoxicants. The latter is consistent with section
29.8. To the extent the jury declined to credit Dr. Abrams’ assertion that
Ocular had schizophrenia separate and apart from his drug use in reaching
that conclusion, and concluded instead that any psychosis was the result of
Ocular’s extended drug use, they were entitled to do so.
Ocular relies on Robinson, to assert that the use of intoxicants does not
always preclude a finding of insanity, and that section 29.8 applies only when
substance abuse is the sole cause of the condition. (See Robinson, supra, 72
Cal.App.4th at p. 427; see also People v. Kelly (1973) 10 Cal.3d 565, 577, fn.
22
17.) We have no quarrel with this assertion. We simply conclude the
instruction, read in its entirety, properly defines the limitation of the defense
as set forth in section 29.8.
As the parties seem to agree, Cabonce is instructive here. In Cabonce,
the court instructed the jury with CALJIC No. 4.00, and stated, in relevant
part, “ ‘However, this defense of legal insanity does not apply when the sole or
only basis or causative factor for the mental disease or mental defect is a
personality disorder, a seizure disorder, or an addiction to, or abuse of,
intoxicating substances.’ ” (Cabonce, supra, 169 Cal.App.4th at p. 1434.)
The Cabonce court further instructed the jury with CALJIC No. 4.02,
stating, “ ‘A person is legally insane if by reason of mental disease or mental
defect, either temporary or permanent, caused in part by the long continued
use of alcohol, drugs, [or] narcotics even after the effects of recent use of
alcohol, drugs, or narcotics have worn off, he was incapable [of understanding
the nature of his act or distinguishing right and wrong] at the time of the
commission of the crime. . . . [¶] However, this defense does not apply when
the sole or only basis or causative factor for the mental disease or mental
defect is an addiction to, or an abuse of, intoxicating substances.’ ” (Cabonce,
supra, 169 Cal.App.4th at p. 1434.)
When the Cabonce jury expressed difficulty in understanding these
instructions, the trial court provided a portion of CALCRIM No. 3450 and
instructed them further, consistent with the instruction given in this case:
“ ‘Special rules apply to an insanity defense involving drugs or alcohol.
Addiction to or abuse of drugs or intoxicants, by itself, does not qualify as
legal insanity. This is true even if the intoxicants cause organic brain
damage or a settled mental disease or defect that lasts after the immediate
effects of the intoxicants have worn off. Likewise, a temporary mental
23
condition caused by the recent use of drugs or intoxicants is not legal
insanity.’ ” (Cabonce, supra, 169 Cal.App.4th at p. 1435.)
Finally, when the jury continued to express confusion about the term
“causative factor” in CALJIC No. 4.02, the court instructed further: “ ‘The
defense of legal insanity never can be proved, as a matter of law, when the
mental disease or defect is caused only by an addiction to, or an abuse of,
intoxicating substances. [¶] 2. In some cases the defense of legal insanity
might not be proved, based on the weight of the evidence and the facts as the
jury finds them, when the mental disease or mental defect, is caused primarily
by an addiction to, or an abuse of, intoxicating substances.’ ” (Cabonce, supra,
169 Cal.App.4th at p. 1436.)
On appeal, Cabonce argued the second paragraph of the final
instruction “impermissibly allowed the jury to reject the insanity defense if it
found his intoxication at the time of the [crime] was merely the primary
cause of his mental disease or defect.” (Cabonce, supra, 169 Cal.App.4th at
p. 1436.) The court rejected this argument. It explained, “while the first
paragraph of the court’s response informed jurors that if intoxication was the
sole cause of the defendant’s mental disease or defect, the insanity defense
did not apply as a matter of law, the contested second paragraph told jurors
that if intoxication was merely a ‘primary’ cause of the defendant’s mental
disease or defect, whether the insanity defense applied was a question of fact
for the jurors to resolve based on the evidence, in light of the instructions.”
(Ibid.)
Likewise, here, although the trial court did not give any additional
instruction, the instruction it did give informed the jury that the insanity
defense was not available if the alleged mental disease or defect was caused
solely by Ocular’s use of intoxicants. If the jury concluded the alleged mental
24
disease or defect—schizophrenia—was not caused solely by Ocular’s use of
intoxicants, it then had to resolve the fact question of whether the defense
applied, based on the relevant instructions and evidence. We acknowledge
that the trial court here did not expressly instruct the jury that the defense
might still apply, but notably, the trial court also did not give the CALJIC
instruction that seems to have caused the confusion in Cabonce in the first
instance. Regardless, Ocular did not ask for that type of instruction and, for
the reasons we have explained, the instructions that were given did not
preclude the jury from reaching that same conclusion.
3. Any Further Instructional Error Related to
Temporary Insanity Was Not Prejudicial
As a final matter, to the extent Ocular asserts the instruction
improperly informed the jury that temporary insanity could not be caused by
drug use at all to qualify as a defense to the charged offenses, Ocular did not
raise a temporary insanity defense.
In discussing the last sentence of the first bracketed paragraph, Ocular
asserts that sentence “did not limit or define the extent to which the drug use
would have had to have caused the temporary condition to preclude a finding
of insanity. Rather, it barred a finding of insanity based on a temporary
condition in any way caused by drug use and thus precluded a finding of
insanity based on any drug use at all.”
As we have already discussed, the last sentence of the first bracketed
paragraph must be read in conjunction with the entire instruction. Doing so,
the last sentence simply clarifies that a temporary mental condition is
treated similarly to a settled mental condition in the sense that it, likewise,
cannot be caused solely by using intoxicating substances.
Regardless, any error related specifically to the instruction as it relates
to a temporary mental condition is not prejudicial because Ocular did not
25
assert that he was suffering from a temporary mental condition (although,
notably, he did assert voluntary intoxication as a defense in the guilt phase).
Ocular asserts that he was suffering from a “long-standing mental disease or
defect—schizophrenia—and he was also a regular user of
methamphetamine.” While Dr. Abrams, and defense counsel, suggested that
Ocular’s intermittent use of methamphetamine may have exacerbated or
enhanced the schizophrenia, neither characterized the schizophrenia as a
temporary condition. To the contrary, the only potentially temporary
condition discussed was methamphetamine induced psychosis, which is, by
definition, based entirely on the use of intoxicants.
The prosecutor argued, consistent with the evidence and the
instruction, “A temporary condition caused by the recent use of drugs is not
legal insanity. So the fact that Mr. Ocular was injecting methamphetamine,
smoking methamphetamine for the two weeks leading up to the crime,
slamming it in—his words—and then went out and shot Millan does not
qualify as a defense of mental insanity.” To the extent Ocular wished to
assert that he had some temporary mental condition at the time of the
charged offenses, a temporary condition that was not caused solely by
methamphetamine intoxication, nothing in the instruction or associated
argument precluded him from doing so; however, the record before us does
not reveal any such defense.
For the foregoing reasons, we conclude the trial court did not err in
instructing the jury on the role of intoxicants in determining sanity. For the
same reasons, we conclude the instruction, as given, did not violate Ocular’s
due process right to a fair trial under the Sixth and Fourteenth Amendments.
26
III. DISPOSITION
The judgment is affirmed.
KELETY, J.
WE CONCUR:
DATO, Acting P. J.
DO, J.
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