People v. Cowell

THE PEOPLE, Plaintiff and Respondent, v. JOHN LEE COWELL, Defendant and Appellant.

A160637

California Court of Appeals, First District, First Division

November 15, 2022

NOT TO BE PUBLISHED

Order Filed Date 12/1/2022

Alameda County Super. Ct. No. 18-CR-01-6431

ORDER MODIFYING OPINION AND DENYING REHEARING

THE COURT:

It is ordered that the opinion filed herein on November 15, 2022 be modified as follows:

1. On page 48: The first full sentence which reads, "And the fact the jury found defendant guilty of attempted murder and found true the allegation that he committed the attempted murder willfully and with premeditation and deliberation, demonstrates that any error in not including 'intent to kill' and not referencing the special circumstance of lying in wait in the CALCRIM No. 3428 instruction was harmless, as it is not reasonably probable a more favorable result would have been reached had the asserted error not occurred. (See People v. Ocegueda, supra, 247 Cal.App.4th at p. 1407 [whether error in limiting jury's consideration of mental disability evidence was prejudicial is determined under Watson standard].)" shall be modified to read:

And the fact the jury found defendant guilty of attempted murder and found true the allegation that he committed the attempted murder willfully and with premeditation and deliberation, demonstrates that any error in not including 'intent to kill' and not referencing the special circumstance of lying in wait in the CALCRIM No. 3428 instruction was harmless under either the federal or state standard of prejudicial error. (See Townsel, supra, 63 Cal.4th at p. 64.)"

2. Footnote 17 should be deleted, and all subsequent footnotes renumbered accordingly.

There is no change in the judgment.

The petition for rehearing is denied.

BANKE J.

Defendant John Lee Cowell was charged with first degree murder and attempted murder. Several enhancements were also alleged. He pled not guilty by reason of insanity. Following the guilt phase of his trial, a jury convicted him of all charges. Later, during the sanity phase, the trial court directed a verdict that defendant was sane at the time he committed the offenses.

On appeal, defendant claims numerous errors occurred during both phases, although he does not challenge the sufficiency of the evidence supporting his convictions. He contends the trial court erred by (1) failing to reinstate competency proceedings; (2) conditioning his presence at trial on his willingness to be cross-examined; (3) refusing to permit the jury to consider evidence of mental disease in connection with the lying-in-wait special circumstance; (4) striking his testimony for the sanity phase; (5) excluding defense expert witness testimony during the sanity phase; (6) directing a verdict on sanity after the jury began deliberations; and (7) denying motions for mistrial. He additionally maintains the prosecutor committed misconduct throughout the trial.

We affirm.

Background^[1]

On a July 2018 night, three sisters, N.W., L.W., and T.W.^[2] were waiting for a BART train at the Concord station. Defendant was also on the platform. All four boarded a train headed toward Oakland. T.W. and L.W. sat together, and N.W. stood nearby. Defendant, who was wearing a gray hoodie and sunglasses, sat near the sisters, but there was no interaction between them. At the MacArthur station, the sisters exited the train in order to transfer, and defendant followed.

When the next train arrived, T.W. boarded and took a seat. But before N.W. and L.W. could board, defendant stabbed both in the neck with a kitchen knife, which he had secreted in his pants pocket.

BART Police Officer Andres Rocha was on duty at the MacArthur station when he heard "people screaming and . . . running" towards him. They pointed Rocha toward the platform and told him "someone had a knife." Defendant had, by then, mixed in with the crowd and joined in "directing [the police] back towards the BART station." Rocha found N.W. and L.W. "seated on the ground, both bleeding." He began chest compressions on N.W., who had "blood pouring" from her neck and mouth, until an EMT arrived and took over. N.W. died at the scene from her injuries-a two-inch deep stab to her carotid artery. L.W. was transported to a hospital and released the following day.

About an hour after Officer Rocha was directed to the platform, defendant boarded a bus, telling the driver he had injured his leg. Defendant asked the driver to take him to the next nearest BART station, and the driver let him off near the 12th Street station.

The following day, using video footage that captured defendant's path after exiting the MacArthur station, BART police officers followed defendant's probable trail toward a parking structure. There, they recovered a pair of tan pants that matched the ones defendant was wearing in the footage. The pants had "three tears" in the front pocket. At a nearby construction site, officers found a kitchen knife.^[3] Officers also found a backpack containing defendant's medical documents, prescription bottles, and a hoodie matching the one defendant was wearing in the surveillance footage.

BART officers later arrested defendant on a train at the Pleasant Hill station. He was coherent, responsive, and did not exhibit any signs that caused "concern about his mental health well-being."

The Alameda County district attorney filed an indictment charging defendant with one count of murder (Pen. Code, § 187, subd. (a)-count 1)^[4]with alleged special circumstances of lying in wait (§ 190.2, subd. (a)(15)) and personally using a deadly weapon (§ 12022, subd. (b)(1)), and one count of attempted murder (§§ 187, subd. (a), 664, subd. (a)-count 2) with allegations that defendant had acted with deliberation and premeditation, had personally used a deadly weapon and had personally inflicted great bodily injury (§ 12022.7, subd. (a)). It was further alleged defendant had suffered two prior felony convictions within the meaning of the Three Strikes law. (§§ 667, subd. (e)(2), 1170.12, subd. (c)(2).)

Defendant entered a plea of not guilty by reason of insanity. In support of his plea, defendant presented extensive evidence of his mental health history, in the form of testimony from treating physicians, defendant's own testimony, testimony from family members, and testimony from expert witnesses.

Treating Providers

Dr Jesus Perez, a psychiatrist, treated defendant at Atascadero Hospital.^[5] During an interview, defendant told Dr. Perez that "he used marijuana and methamphetamines on a daily basis, multiple times per day," that he "also had an issue of using heroin on and off," and that he "was drinking up to a fifth of vodka a day leading up to his arrest." While defendant "was endorsing that he was hearing voices during the interview," he was "very vague with his report of the voices." Dr. Perez did not "see any evidence that he was actually experiencing outward hallucinations at the time." Dr. Perez diagnosed defendant with "schizoaffective disorder, bipolar type, antisocial personality disorder; amphetamine type use disorder; alcohol-use disorder; cannabis-use disorder, [and] opioid-use disorder."

A month before the stabbings, at Contra Costa County Hospital, Dr. Jonathan Patberg treated defendant two times, a week apart. On the first occasion, defendant appeared high. He stated he used heroin "every couple of days" and wanted to get Suvoxone, a medication to "treat[] opioid addiction." Dr. Patberg did not prescribe Suvoxone at that time. A week later, on the second occasion, defendant once again sought "treatment for his opioid use history." This time, he also complained about the "presence of breast implants," which he wanted evaluated and taken out. Defendant also told Dr. Patberg he was "hearing voices" but maintained he was still taking Zyprexa, "an anti-psychotic" medication and Buspar, an "[a]nti-depressant; anti-anxiety" medication. This time, Dr. Patberg prescribed the requested Suvoxone.

A little over a week before the stabbings, Dr. Teresita Pontejos-Murphy, a staff psychiatrist at John George Psychiatric Pavilion, an inpatient psychiatric hospital, testified she treated defendant after he was placed at the hospital on a Welfare and Institutions Code section 5150 hold. Defendant reported he "had been hearing voices telling him that people were out to kill him." Dr. Pontejos-Murphy believed "those problems . . . were to be associated with medication noncompliance." Upon initial evaluation, Dr. Pontejos-Murphy noted defendant was a" 'pleasant; somewhat manipulative male; limited eye contact; no gross . . . motor agitation,'" and he was "[a]lerted to person, place, and time." On the date defendant was discharged, he "denied any suicidal ideation or homicidal ideation," "denied any auditory hallucinations or visual hallucinations." If, on the expected date of discharge, a person is "a danger to himself or others," Dr. Pontejos-Murphy will not approve the discharge. Defendant had been scheduled to be released the day before, but was suicidal and "kept for another day."

Four days before the stabbings, defendant went to the Kaiser Oakland emergency department where he was seen by Dr. Yin Huang. Defendant told Huang he had suicidal ideations, was hearing auditory hallucinations, was homeless, and someone had stolen $800 from him and had thrown urine on him. Huang referred defendant to John George Psychiatric Pavilion on a Welfare and Institutions Code section 5150 hold. He was released the following day.

The day before the stabbings, defendant returned to the emergency department at Kaiser Oakland and was seen by Dr. Thomas Catron. Catron did not specifically remember the interaction but his notes indicate de...