(San Mateo County Super. Ct. No. SC057817). Hon. John W. Runde.
The opinion of the court was delivered by: Needham, J.
CERTIFIED FOR PUBLICATION
Jerry Cabonce (Cabonce) appeals from a judgment of conviction and sentence imposed after a jury found him guilty of multiple offenses and rejected his defense of insanity. Challenging only the sanity finding, Cabonce contends the court's response to an inquiry by the jury during deliberations improperly suggested that his insanity defense could be rejected if Cabonce's insanity was caused in part by his intoxication at the time of the offense. We will affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
Cabonce was charged with two counts of deliberate and premeditated attempted murder of peace officers (Pen. Code, §§ 187, subd. (a); 664); two counts of assault with a deadly weapon (knife) by means of force likely to produce great bodily injury on peace officers (§ 245, subd. (c)); and two counts of assault with a deadly weapon (pellet gun) (§ 245, subd. (a)(1)).*fn1
As to counts 1 through 4, Cabonce was alleged to have personally inflicted great bodily injury (§ 12022.7 subd. (a)). As to counts 1 and 2, it was alleged that he personally used a deadly weapon (§ 12022, subd. (b)). The amended information further alleged that Cabonce had a prior serious felony conviction for aggravated assault (§ 667, subd. (a)), which constituted a strike under section 1170.12, subdivision (c)(1).
In early 2004, Cabonce was found incompetent to stand trial pursuant to sections 1367 and 1368. In November 2004, the court determined after a hearing that Cabonce's competence had been restored, and criminal proceedings were reinstated.
Cabonce entered a plea of not guilty by reason of insanity in January 2005. Criminal proceedings were suspended pursuant to sections 1026 and 1027, and doctors were appointed to examine Cabonce's competency. Cabonce was found incompetent to stand trial in August and September 2005.
In August 2006, Cabonce was again found competent to stand trial. The defense subsequently expressed renewed doubt about Cabonce's competency. After a hearing in November 2006, the court found there was no substantial change of circumstances and Cabonce remained competent to stand trial.
Defense counsel on two more occasions declared doubts regarding Cabonce's competency. The court ruled both times that there was neither a substantial change in circumstances nor new evidence of incompetency.
Cabonce entered a plea of not guilty and not guilty by reason of insanity (NGI) to the amended information and denied the special allegations.
Jury trial began on January 10, 2007. As to counts 5 and 6, the People asserted that Cabonce committed assault with a deadly weapon on Lisa and Jet Sze. As to counts 1 through 4, the People asserted that Cabonce committed assault with a deadly weapon and attempted murder on police officers investigating the incident.
1. Counts 5 and 6 (Assault With Pellet Gun On Lisa and Jet Sze)
Around 8:30 a.m. on August 11, 2003, Lisa Sze was walking her three-year-old son, Jet Sze, to his first day of pre-school.*fn2 Lisa heard a couple of popping sounds, heard Jet crying, and felt something strike her calf. She turned and saw a cab with ethnic flags on the dashboard and a flag painted on the trunk. The passenger door of the cab was open, and a man lying across the seats was shooting at her and Jet. Lisa looked directly at the shooter and smelled what she later identified to be Jack Daniels Wild Berry whisky coming from the cab. She saw blood on her son and screamed for help. The cab "tore off," and Lisa went to a nearby building and asked the doorman to call the police. Jet had been shot three times by what turned out to be a pellet gun. At trial, Lisa identified Cabonce as the shooter.
Gene McDonald was a passenger in a different cab on August 11. He observed a cab, bearing a flag on the trunk and checkered decals, pull over and then abruptly pull back out. A woman with a child was screaming and upset, and McDonald called 911 on his cell phone. McDonald's cab driver, William Creighton, also noticed the other cab pull over abruptly and heard screaming from the sidewalk.
San Francisco Police Officer John Ferrando responded to the scene. Lisa told him she was walking by a cab, which had a door open, and the driver pointed a gun and shot at her and Jet. Doorman George Cheisivili handed Officer Ferrando two BB gun pellets that he had found on the ground, and the officer found a third pellet. Sergeant Timothy Reid, the range master for the San Mateo County sheriff's office, explained that the pellet gun used by Cabonce constituted a dangerous and deadly weapon.
2. Counts 1-4 (Offenses Against Police Officers)
On August 11, 2003, San Francisco police inspector Leanora Militello and her partner Patricia Correa were investigating the reported assault by a cab driver on a woman and child with a pellet gun. They learned the license plate of the cab and that it had been found in front of 379 Woodrow in Daly City. The officers proceeded to the address in an unmarked Crown Victoria.
Officers Correa and Militello observed a cab in front of 379 Woodrow, matching the description and license plate of the cab involved in the shooting. They did not see anyone in the cab and decided to tow it. As they pulled up alongside, they noticed a man standing at the rear of the cab. Although they had a photograph of Cabonce, the man was disheveled and did not look like the photograph. The officers nonetheless decided to talk to him. Neither officer was in uniform or had her gun drawn.
Officer Correa pulled out her badge, approached the man, identified herself as a San Francisco police officer, put her hand on his shoulder, and asked if she could talk to him. At trial, Officer Correa identified this man as Cabonce.
Cabonce looked at Officer Correa, looked at the badge, and pulled away slightly. As Cabonce became agitated, Correa told him they only wanted to talk, and Officer Militello placed her hand on his shoulder to calm him. Cabonce grinned. Then he stabbed Correa in her left side about three inches above the waist, stabbed Militello in the breast area, turned back to Correa and stabbed her in the chest area, and started for Militello again. Both officers, severely injured, retreated to their vehicle.
Officer Militello next saw Cabonce in the window of 379 Woodrow, pointing what appeared to be a gun in their direction. Unable to get through on her police radio, Militello shouted for someone to call 911. A citizen came to the officers' aid and helped Correa get her weapon; when Cabonce came down the stairs of the house and raised his gun, she fired two shots. The Daly City police arrived at the scene. The officers were transported to the hospital and, subsequently, identified Cabonce in a photographic lineup as the person who stabbed them.
Cabonce's neighbor, Benedicto Navarro, testified that he saw Cabonce on August 11 cleaning his taxi. When a police car approached, Cabonce crouched down and went around the cab, opened the trunk, and took out a knife. Two women approached Cabonce and said they were San Francisco police officers.*fn3 Cabonce stabbed both officers. Navarro got a tool bar and approached Cabonce, who ran into his house. Cabonce later appeared in the window, pointing what appeared to be a gun. Navarro told the officers that Cabonce had a gun and helped one officer reach a safer position.
Carlos Montes was also on Woodrow Street on August 11. He saw a parked car, which, although it was unmarked, he realized was a police vehicle. The officers approached a cab, and a man appeared. The officers identified themselves as San Francisco police officers, and one officer displayed her badge. The man, whom Montes identified at trial as Cabonce, took an 18-inch knife from his trunk and stabbed one of the officers. He turned and lunged at the other officer, stabbing her, and then stabbed the first officer again. Montes ran after Cabonce, who ran into the house. When Montes saw Cabonce in the window with what looked like a gun, he ducked behind a car.
After Cabonce refused Daly City police orders to come out of his residence, a police SWAT team responded to the scene. Cabonce was observed drinking in the residence. The SWAT team members went through the backyard and saw Cabonce through a sliding glass door, apparently passed out, with what seemed to be a gun on his body and a knife nearby. The officers forced their way into the residence and arrested him.
Cabonce was taken to jail. In his shirt, police found two unspent CO2 cartridges and six pellets, which matched a pellet gun found at the scene. Two blood samples were drawn from Cabonce, an analysis of which revealed a.11 percent blood alcohol concentration.
In a search of Cabonce's residence, police found a nearly empty bottle of Jack Daniels Wild Berry whisky in the living room, a knife and pellet gun in the entertainment room, and a tequila bottle containing tequila. In a search of Cabonce's cab, they found a tequila bottle containing what appeared to be Jack Daniels Wild Berry whisky, a box of pellets and CO2 cartridges on the front seat, and toy police badges, guns, and a plastic sword in the passenger area.
Daly City Police Detective Gregg Oglesby conducted videotaped interviews of Cabonce on August 11 and 12, beginning around 6:00 p.m. on August 11. Cabonce appeared to be under the influence of alcohol. Cabonce claimed he had been drunk and was protecting himself, although he did not know from whom. As to the pellet gun incident, Cabonce stated, "Well, I want my SSI all right." He claimed he was mad at people because the government had taken away his money. Cabonce did not think what he did was wrong, stating it's "okay to protect yourself." When asked why he felt threatened by the officers, Cabonce stated, "They were a threat to me that's all."
During Cabonce's interview on August 12, forensic psychiatrist James Missett was present. When Cabonce was asked if he knew right from wrong, he replied, "Of course I do!" Cabonce admitted that shooting someone with a BB gun was wrong and acknowledged that if you stab someone, they could be killed.
Cabonce stated he had been seeing a psychiatrist, had been hospitalized for psychiatric problems in the past, and had been on medication, which he stopped taking. He denied he was an alcoholic but acknowledged "sometimes I can drink a whole bottle."
When Cabonce was asked why he shot the woman and her little boy, Cabonce stated that he "promised to [himself] if they cut off [his] SSI, that's what I..." Earlier Cabonce told the officers that he had told his mother that "if they cut of[f] my... my SSI, I would kill somebody."
Cabonce admitted it would be wrong to stab two officers for no reason, but not if they were invading his privacy. When asked if the officers were invading his privacy even though they were on the street rather than in his home, Cabonce replied, "A little bit, a little bit." Cabonce denied he knew the women were police officers, although he acknowledged they showed him a badge. He claimed he was drunk, but he knew that he stabbed them in the chest. Cabonce said that after ...