People v. Larsen

12 Cal. Daily Op. Serv. 4797

140 Cal.Rptr.3d 762

2012 Daily Journal D.A.R. 5626

205 Cal.App.4th 810

The PEOPLE, Plaintiff and Respondent,

v.Chad Andrew LARSEN, Defendant and Appellant.

No. A128973.

Court of Appeal, First District, Division 1, California.

April 30, 2012.Certified for Partial Publication.*

Philip M. Brooks, Esq., for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Stan Helfman, Supervising Deputy Attorney General, Julia Y. Je, Deputy Attorney Genera, for Plaintiff and Respondent.

DONDERO, J.

Defendant Chad Andrew Larsen was convicted following a jury trial of conspiracy to commit murder and solicitation to commit murder. The trial court sentenced him to 25 years to life for the conspiracy conviction, and a concurrent nine-year term for the solicitation conviction. He contends the trial court infringed on his constitutional right to present a defense by failing to give an instruction on mental disorder and intent, failed to give instructions on entrapment and the criminal liability of his co-conspirator, and erred by denying his motion to recuse the entire prosecutor's office prior to sentencing.

We conclude that the trial court committed error by refusing to give the CALCRIM No. 3428 instruction on evidence of mental disorder and intent. The instructional error was, however, not prejudicial. We find that no other errors were committed. We therefore affirm the judgment.

STATEMENT OF FACTS

In January of 2008, defendant was arrested and subsequently charged with felony violations of unlawful sexual intercourse and oral copulation with a minor (Pen.Code, §§ 261.5, subd. (c), 288a, subd. (b)(1)), 16–year–old Jane Doe.¹ While defendant was held in the Humboldt County Jail awaiting trial, his father, Dennis Larsen (Dennis) regularly visited him. To avoid the recording devices on jailhouse phones, defendant would often communicate with Dennis by holding up handwritten notes to the glass partition in the visiting room.

DISPOSITION

The convictions for conspiracy to commit murder and solicitation to commit murder are affirmed.

I concur: BANKE, J.

MARCHIANO, P.J., Concurring and Dissenting.

I concur in the majority's affirmance of the judgment. I respectfully disagree with the majority's conclusion that the court erred in refusing to give CALCRIM No. 3428 regarding defendant's mental disorder and specific intent at the time of the commission of the crime.

This case involves 29–year–old defendant Chad Larsen who was facing charges of plying a 16 year old in January 2008 with oxycodone and cocaine and then forcing her into sexual acts with him. He was awaiting trial when he concocted a plan to kill the victim Jane Doe so she could not testify against him.

The majority misperceives the defense theory and theme presented by the record. Defense counsel's opening statement outlined the evidence and the defense from defendant's perspective. Nowhere does defense counsel suggest that Asperger's Syndrome would provide a mental defect defense for the charged crimes. He outlined some of defendant's behavioral manifestations and mentioned Catherine Silver, a physician's assistant, diagnosing defendant with Asperger's to explain why defendant was on social security and to explain how it affected his social interaction. But there is no hint that the evidence during the trial would show that Asperger's affected defendant's mental status so as to prevent defendant from actually forming the specific intent to commit any of the charged offenses.

Defendant contended throughout the trial that he did not plot or intend to kill the minor victim/witness Jane Doe, but rather his actions and statements were misconstrued by the authorities and the prosecution. A by-product of his Asperger's Syndrome was a preoccupation with games with fantastical plots and fantasy comic books. His defense was he was merely game playing, he was not inherently a violent or bad person, and his directions to his father and entreaties to other jail inmates were components of his game playing. The evidence showed the defendant instructed and participated in steps to eliminate Jane Doe. Because the trial evidence demonstrated defendant functioned in everyday life with Asperger's, defense counsel recognized he could not rely on Larsen's disorder as an excuse for his actions. His defense strategy was Larsen did not intend to kill Jane Doe or solicit anyone to do so because it was all a game, not that as a result of Asperger's Syndrome defendant did not actually form and act with the requisite mental intent when he solicited murder.

As judges know, evidence of mental disease, defect, or disorder is not admissible to negate the capacity to form any mental state, but is admissible solely on the issue of whether the defendant actually formed the required specific intent. With the abolishment of the diminished capacity defense in 1982 by Penal Code sections 25, 28, and 29, mental disorder or defect may no longer be used as a defense to a crime, but may be used to negate an element of the crime, such as specific intent. A defendant may show that because of Asperger's Syndrome or any recognized mental disorder, he did not form the specific intent to solicit to murder, with the jury instructed with CALCRIM No. 3428.¹

But simply because defendant had the mental disorder of Asperger's Syndrome when he was in jail, or that persons with Asperger's are susceptible to manipulation is not sufficient to warrant giving CALCRIM No. 3428. Defendant will always have Asperger's Syndrome. Susceptibility to manipulation does not necessarily negate the specific intent to solicit murder. Asperger's has varying symptoms and degrees of impairment, with many adults with Asperger's functioning successfully in society and engaging in purposeful activity. (See Asperger's in Adults http:// www. aspergers in adults. net [as of April 30, 2012].) Defendant's disorder must have in some way prevented him from forming and acting with the requisite criminal intent for the crime of solicitation of murder. There is no such evidence in this record from any expert witness. People v. Moore (2002) 96 Cal.App.4th 1105, 1116–1117, 117 Cal.Rptr.2d 715, explained: “Without expert medical testimony establishing the defendant was suffering from a mental disease, defect, or disorder at the time of the commission of the crime, there was no evidentiary or legal basis for the trial court to instruct with CALJIC No. 3.32.” (Italics added.) ² In affirming the refusal to instruct on CALJIC No. 3.32, the court pointed out the expert did not opine the defendant was suffering from a mental disease, defect, or disorder when he stabbed the victim.

Certainly, as the majority note, an expert cannot testify on the ultimate issue of whether a defendant had the requisite intent at the time he acted. (Pen.Code, §§ 28, 29; People v. Nunn (1996) 50 Cal.App.4th 1357, 1364, 58 Cal.Rptr.2d 294.) But an expert can testify as to whether a mental disorder generally impairs criminal intent, or testify in response to a hypothetical question that a form of mental illness can lead, for example, to impulsive behavior, without running afoul of Penal Code section 29's admonition. (See People v. Coddington (2000) 23 Cal.4th 529, 582–583, 97 Cal.Rptr.2d 528, 2 P.3d 1081, overruled on unrelated ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13, 108 Cal.Rptr.2d 409, 25 P.3d 618.) Ms. Silver, the defense expert, did neither, because she was not asked to. Indeed, she never mentioned criminal intent in her testimony nor did she generally relate Asperger's Syndrome to anything pertinent to the defendant's mental state as he plotted to solicit someone to kill Jane Doe. Counsel tactfully and tactically avoided the issue. Nor did the court prevent counsel from exploring the connection between defendant's Asperger's Syndrome and the crime, as was properly done in People v. Young (1987) 189 Cal.App.3d 891, 906–907, 234 Cal.Rptr. 819 and People v. Jackson (1984) 152 Cal.App.3d 961, 965–970, 199 Cal.Rptr. 848, where the experts testified the criminal acts were the product of the mental illness.³ Defendant's counsel chose not to address the connection between defendant's condition and the charged crime through the expert. And defense counsel did not argue Asperger impairment, but relied on his innocent game-playing theme.

Ms. Silver did testify defendant “lives in a[n] intellectual fantasy world much of the time.” This has little to do with criminal intent and its connection to the crime. An imaginative artist—or a man caught up in the intellectual fantasy world of role-playing games—may actually form and act with specific criminal intent as anyone else. Ms. Silver testified about defendant's Asperger's symptoms in general, including susceptibility to manipulation, without relating the condition to any mental impairment issue at the time of the commission of the crime. The majority states, “Silver specifically testified that defendant is socially naïve and subject to manipulation by others to say things adverse to his own interests.” (Maj. opn. p. 777.) This untethered opinion testimony about naïveté and manipulation is not the type of substantial evidence that supports a jury's consideration of CALCRIM No. 3428. Ms. Silver's testimony did not tie defendant's Asperger's Syndrome to his mental state at the time of the commission of the crime. As the Supreme Court explained in People v. Panah (2005) 35 Cal.4th 395, 485, 25 Cal.Rptr.3d 672, 107 P.3d 790, in concluding the evidence there was insufficient to give CALJIC No. 3.32 (alternative to CALCRIM No. 3428): “At best Palmer's equivocal testimony established that defendant may have suffered from long-standing latent psychosis and, at some point, his condition deteriorated. This does not constitute evidence of defendant's mental state at the time of the...