Filed 2/2/21 P. v. Hughes CA2/4

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IN THE COURT OF APPEAL OF THE STATE OF 

CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

WILLIAM FRANKLIN HUGHES,

Defendant and Appellant.

 B299683

 (Los Angeles County

 Super. Ct. No. MA071692)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Charles A. Chung, Judge. Affirmed 

and remanded with directions.

Elizabeth K. Horowitz, under appointment by the 

Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, 

Chief Assistant Attorney General, Susan Sullivan Pithey, 
2

Senior Assistant Attorney General, Steven D. Matthews and

David F. Glassman, Deputy Attorneys General, for Plaintiff 

and Respondent.

_______________________________________________

INTRODUCTION

Appellant William Franklin Hughes fatally strangled 

repairperson Lyndi Fisher when, for a second time, she 

visited his house to repair his refrigerator. Charged with 

Fisher’s premeditated murder, he entered pleas of not guilty 

and not guilty by reason of insanity, resulting in the 

bifurcation of his trial into guilt and sanity phases. At the 

guilt phase, over appellant’s objection, the trial court 

admitted evidence of an incident in which, several weeks 

before Fisher’s killing, appellant made sexual advances to a 

fellow college student at their school. Relying on this 

evidence, the prosecution suggested that Fisher’s rejection of 

a sexual advance by appellant might have motivated him to 

kill her, but further argued such motivation was immaterial, 

in light of compelling evidence that appellant had been the 

initial aggressor, that he had battered Fisher to overcome 

her resistance, and that he had crushed her neck for 90 

seconds or more. Defense counsel, pointing to evidence that 

appellant had a psychotic illness that caused paranoid 

delusions, suggested appellant had been motivated by a 

delusion that Fisher was planting or retrieving a 

surveillance device in the refrigerator. Relying on evidence 
3

of such delusions, defense counsel argued appellant had 

acted in “imperfect” self-defense.

Also at the guilt phase, appellant’s father testified that 

several weeks before Fisher’s killing, appellant had reported 

an armed intruder in his house. Appellant’s father believed 

the motive for this prior report of an intruder was 

appellant’s desire to avoid blame for creating a mess in his 

house. The jury heard recordings of false statements 

appellant had made to detectives shortly after Fisher’s 

killing, including the claim that at the insistence of an 

armed intruder, he had been taking a 45-minute walk 

around the neighborhood at the time of the killing. Without 

objection, the court delivered both CALCRIM No. 362 

(allowing the jury to infer appellant’s consciousness of guilt 

from any knowingly false pretrial statements he had made 

related to the offense) and CALCRIM No. 3428 (prohibiting 

the jury from considering evidence of appellant’s mental 

illness for any purpose other than determining his mental 

state at the time of the offense). Appellant did not testify.

The jury convicted appellant of Fisher’s murder, 

finding it to be premeditated and deliberate. At the sanity 

phase, tried to the court, the guilt-phase evidence was 

admitted into the record, along with additional expert 

evidence. Only one expert, whom the court found the least 

helpful, opined that appellant had been unable to 

understand the moral wrongfulness of killing Fisher (the 

only theory of insanity advanced by appellant). Again, 

appellant did not testify. The court found appellant had 
4

failed to prove insanity by a preponderance of the evidence. 

At sentencing, defense counsel made an oral Romero motion 

to strike a charged three-strikes enhancement (which the 

court denied), but did not ask the court to strike a charged

serious-felony enhancement.1 The court sentenced appellant 

to an aggregate term of 55 years to life, comprising a 

25-years-to-life term on the first degree murder conviction 

(doubled under the three strikes law) and a five-year term on 

the serious-felony enhancement.

On appeal, appellant challenges the guilty verdict on 

the grounds that: (1) no substantial evidence supported the 

jury’s finding of premeditation and deliberation; (2) the trial 

court prejudicially erred by admitting the evidence of 

appellant’s sexual advances on his fellow student; (3) the 

court prejudicially erred by failing to modify CALCRIM 

No. 3428 to permit the jury to consider evidence of 

appellant’s mental illness in deciding whether his false 

pretrial statements to the detectives were knowingly false, 

as necessary to support an inference of consciousness of 

guilt; (4) many of the prosecutors’ remarks during closing 

argument constituted misconduct; and (5) his trial counsel 

were ineffective for failing to object to the admission of 

testimony from appellant’s father regarding appellant’s 

motive for reporting an intruder several weeks before 

Fisher’s killing. Appellant also challenges the sanity verdict, 

contending the trial court misapplied the law by relying on 

1 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
5

its personal belief that finding appellant sane was necessary 

to deliver justice to Fisher’s family, and asserting that the 

court erred in various ways in describing and weighing the 

sanity-phase evidence. We construe appellant’s assertion of 

the latter errors as a contention that no substantial evidence

supported the sanity verdict under the proper legal standard. 

Finally, appellant challenges his sentence on the ground 

that his trial counsel were ineffective for failing to ask the 

court to exercise its discretion, under Senate Bill No. 1393 

(Stats. 2018, ch. 1013, §§ 1-2), to strike his serious-felony 

enhancement. The People do not argue defense counsel had 

a conceivable tactical purpose for failing to request the 

striking of the serious-felony enhancement.

Though we find the admission of certain evidence 

erroneous, we find no reversible error at the guilt or sanity 

phases of appellant’s trial. We do conclude that defense 

counsel’s failure to request the striking of the serious-felony 

enhancement deprived appellant of effective assistance at 

sentencing. Accordingly, we affirm the judgment, and

remand to the trial court with instructions to decide whether 

to exercise its discretion to strike the serious-felony

enhancement. 

PROCEEDINGS BELOW

A. Prosecution Case

The People charged appellant with Fisher’s willful, 

premeditated, and deliberate murder (Pen. Code, §§ 187, 

subd. (a), 189, subd. (a)). The People alleged that appellant
6

had been convicted in 2013 of making criminal threats (id., 

§ 422), and that this prior conviction was both a strike 

within the meaning of the three strikes law (id., §§ 667, 

subds. (b)-(i), 1170.12, subds. (a)-(d)) and a serious felony 

within the meaning of Penal Code section 667, subdivision 

(a). 

Appellant entered pleas of not guilty and not guilty by 

reason of insanity. Accordingly, his trial was bifurcated into 

a guilt phase (tried to a jury) and a sanity phase (tried to the 

court). (See Pen. Code, § 1026, subd. (a).) We summarize 

the sanity phase in a later subsection of this opinion.

1. Fisher’s Repair Visits

In June 2017, appellant was living alone in a house his 

parents had bought for him. Appellant’s father testified that 

around that time, appellant reported that his refrigerator 

was not keeping food cold, so his father examined it and 

discovered a broken gasket. Appellant admitted he had 

slashed the gasket because he thought “somebody was 

putting radio transmitters in there” to spy on him. 

Appellant’s father replaced the gasket, but the door was not 

fully closing, so he asked his wife to place a repair order with 

Arrow Appliance. 

Fisher was then working for Arrow Appliance. On 

June 17, 2017, Fisher visited appellant’s house and worked 

on his refrigerator. Appellant and his mother were present. 

Unable to complete the repair, Fisher ordered parts to be 

used on a return visit. 
7

Fisher returned to appellant’s house in her company 

truck on July 14, 2017, at 6:09 p.m., as confirmed by a 

tracking device installed on her truck. Fisher’s employer, 

Carol Savoie, testified that Fisher sent her a text message 

minutes before her arrival at appellant’s house, but Fisher 

failed to respond to a series of text messages Savoie sent 

between 6:45 p.m. and 8:30 p.m., even though Fisher was 

supposed to pick up her paycheck from Savoie that evening. 

She further testified that the tracking device confirmed that 

someone started the truck’s engine at 8:50 p.m., but turned 

it off within a minute, without moving the truck. 

One of appellant’s neighbors testified that around 9:00 

p.m. the same evening, she left her home and saw appellant 

walking from his yard to Fisher’s truck, briefly looking 

inside it, and entering his garage through the open garage 

door, which he then closed. Savoie testified she drove to 

Fisher’s truck (located by the tracking device) around 9:30 

p.m., found no sign of Fisher inside other than her personal 

cell phone and tools, and saw appellant standing outside his 

house. She left without interacting with appellant. 

2. Discovery of Fisher’s Battered Body

Around 11:30 p.m. on the night of Fisher’s second

repair visit, Los Angeles County Sheriff’s Department 

Deputy Kenneth Towles responded to a 911 call from 

appellant. Appellant silently directed him to the garage, 

where he found Fisher’s body on the floor. He also found 

clothing in the washing machine, which was running when 
8

he arrived. A photograph of two “painter shifts” found in 

appellant’s washing machine was admitted into evidence. 

A medical examiner conducted an autopsy on Fisher 

and opined that her cause of death was manual 

strangulation. He testified that she had hemorrhages in the 

interior muscles of her neck, indicating that sufficient 

pressure had been applied to block her carotid arteries, 

which carry blood to the brain. He further testified that in 

general, blockage of the carotid arteries will not render the 

victim unconscious until after 90 seconds. After 90 seconds, 

the brain will be “on its way towards death” if oxygen is not 

restored. 

The medical examiner also identified dozens of bruises 

and abrasions on Fisher’s body. Fisher had half a dozen in 

the area of her neck (including her lower jaw and 

sternocleidomastoid muscle). She had seven in the area of 

her eyes, nose, and inner lip. She had numerous bruises and 

abrasions on her forehead, chin, and cheek. Additionally, 

she had bruises and abrasions on both legs and on her groin. 

Finally, she had over a dozen bruises on her arms, and 

abrasions and bruises on her hands.

The examiner testified that Fisher’s forearm injuries

were “defensive-type” injuries, suggesting she had sustained 

them while “trying to block any kind of blow to her head or 

chest.” He further testified the injuries to her hands were 

“assault-type” injuries, suggesting she had punched her 

assailant. Appellant’s DNA was found on Fisher’s forearms 

and under the fingernails of her left hand. 
9

3. Appellant’s Interviews with Detectives

Deputy Towles testified that appellant’s behavior at 

the crime scene appeared “odd,” explaining, “[H]e displayed 

very little emotion. He didn’t seem concerned that he had 

just found a dead body in his garage. His answers to many 

basic questions were short, or ‘I don’t know’ or ‘I guess.’ 

Little things like that.” Appellant’s face and hands were 

extremely sweaty. Deputy Towles arranged for appellant to 

be interviewed by Detectives Kasey Woodruff and Karen 

Shonka at a police station, where appellant was advised of 

his Miranda rights. The detectives conducted two recorded 

interviews of appellant, both of which were played for the 

jury. 

The detectives first interviewed appellant at 5:45 a.m. 

on the morning after the killing. (July 15, 2017). Appellant 

told the detectives that after Fisher arrived and began 

working on his refrigerator, he merely sat on the couch until 

a large, dark-skinned intruder wearing dark clothes and 

gloves -- whom he could not otherwise describe -- came 

through the door and pressed a gun against his eye. The 

detectives observed appellant had a black eye or similar 

mark. Appellant further claimed the intruder commanded 

him, at gunpoint, to take a walk. Appellant complied by 

taking a 45-minute walk around his neighborhood before 

returning home; he described his route to the detectives. He 

found himself alone in the house, and spent two hours there 

before finding Fisher’s body in the garage, even though 

Fisher’s truck remained parked in front. He claimed not to 
10

know what had happened to her. He acknowledged he was 

responsible for the clothing being washed when the police 

arrived. After concluding the interview, Detective Woodruff 

viewed footage from a camera located along the route 

appellant claimed to have walked, which contradicted 

appellant’s claim. 

Several hours after the first interview (around 11:15 

a.m. on July 15, 2017), the detectives interviewed appellant 

again. Despite being informed that the camera footage had 

contradicted his claim to have walked his specified route, 

appellant repeated his account of the intruder and his walk 

around the neighborhood. Detective Woodruff told appellant 

the detectives knew what happened, but did not know “why, 

the reason.” Appellant responded, “The reason, the 

reason . . . . It’s interesting.” When asked what the reason 

was, appellant responded, “Well, the reason implicates me, 

or --” When asked how it implicated him, appellant 

responded, “It makes me guilty of a crime eventually.” He 

then denied that he could tell the detectives why Fisher died, 

and, when pressed, reiterated his claim to have left the 

house before she died.2

2 According to evidence admitted only at the sanity phase, 

appellant initiated a third interview with the detectives several 

hours after the second. During this interview, appellant stated 

that “a mental illness thing” had brought about Fisher’s killing, 

which he characterized as an “instinctual move” to protect his 

and his parents’ lives. Appellant identified no basis for this 

alleged belief. 
11

4. Appellant’s Prior Report of an Intruder

In May 2017, appellant moved into the house his 

parents had bought for him. On a date soon thereafter, 

appellant told his father that earlier that day, a man had 

entered his house, forced him into a closet at gunpoint, and 

ransacked the house. Appellant said he had called 911, but 

the police had not responded to the call. Appellant’s father 

went with appellant to the sheriff’s department, where he 

discovered that appellant’s neighbor had made a 911 call, at 

appellant’s request, earlier that day. The neighbor had 

reported appellant’s claim about the intruder, but had called 

again an hour later and suggested “something [was] wrong 

with” appellant and appellant might “have autism.” As a

result of this second call, the department had not responded 

to appellant’s house. At appellant’s father’s insistence, the 

department sent officers to the house. 

Appellant’s father also went to the house. He testified, 

“I didn’t think it had been ransacked because there were 

areas, targeted areas that had been disturbed, like a dresser 

moved or pill bottles, prescription medicine strewn across 

the kitchen.” It did not seem to him that there had been an 

intruder. Without objection, he testified, “I thought he got 

mad, knocked all of his stuff around. Didn’t want to have to 

explain to his mother why he had messed up this beautiful 

new house he just moved into. And told a story.”

On cross-examination, appellant’s counsel elicited 

testimony concerning appellant’s long history of mental 

illness and drug abuse. Appellant’s father testified that he 
12

had not known appellant to have any drug abuse problem 

since appellant completed a rehab program in 2015. But 

appellant had continued experiencing paranoia between his 

completion of rehab and Fisher’s killing. About five or six 

times, appellant had thrown his phone on the ground and 

stomped on it due to concerns about the phone’s connection 

to the cloud.3 After appellant moved into the house in which

he killed Fisher, he told his father that he was hearing 

things, such as a person trying to cut a hole in the roof. 

Appellant glued shut the panel granting access to and from 

the attic, and slept with a “samurai sword.” He “mentioned 

a lot of things” about people, including white supremacists, 

being “out to get him and his family.” His father found 

knives hidden atop picture frames in the house. 

5. Appellant’s Prior Assertion of a Mental 

Health Defense 

Appellant’s father testified that on October 31, 2012, 

his wife (appellant’s mother) phoned from their home to alert 

him that appellant had been screaming at her and throwing 

things. He returned home, where appellant said he was 

angry at his mother because she had refused to give him 

money to buy “spice” (synthetic marijuana). Appellant’s 

parents attempted to leave through the garage, but 

appellant began choking his mother. He told his father he 

3 When the police found appellant’s cell phone, there was 

tape across the phone’s camera. 
13

would stop if his father closed the garage door. Appellant’s 

father complied, and appellant stopped choking his mother; 

the choking had lasted 10 to 15 seconds. As a result of this 

incident, appellant was charged in 2013 with an unspecified 

crime. His parents provided the prosecutor with medical 

records showing appellant had a history of mental illness, 

and hired a defense attorney to advocate for appellant’s 

treatment rather than punishment. 

Forensic psychiatrist Kory Knapke, M.D., testified that 

he conducted a psychological evaluation of appellant in 

connection with the 2013 case. He had not evaluated 

appellant again for the instant case, and he did not offer any 

opinions regarding appellant’s mental state at the time of 

the instant offense. Dr. Knapke testified that during his 

2013 evaluation, appellant said that he had been psychotic 

as a result of using spice at the time he choked his mother, 

but that he was not acting on a delusion (instead, he was 

acting on anger at being refused money to buy more spice). 

Dr. Knapke further testified that spice can cause “very 

violent psychotic symptoms . . . .” Appellant also told 

Dr. Knapke that methamphetamine was his drug of choice. 

Dr. Knapke testified that extended, heavy use of meth can 

cause severe paranoid symptoms and violent behavior, 

sometimes causing users to be “misdiagnosed with a major 

mental illness, like schizophrenia, or bipolar disorder, or 

schizoaffective disorder . . . .” 

Dr. Knapke testified that in his report from the 2013 

evaluation, he had opined that appellant was neither 
14

psychotic nor delusional. He explained, “I was very 

reluctant to give him a diagnosis of a psychotic disorder, 

such as schizophrenia or bipolar disorder, given his 

extensive history of drug abuse, which dated back to his 

teenage years. [¶] And I recommended in my report that the 

defendant remain clean and sober from all substances for a 

good six months, and then be reevaluated once he is clean 

and sober to determine if there’s any ongoing psychotic 

symptoms or mood symptoms that might need [to be] treated, 

so that we can more accurately give him the diagnosis that 

truly fits with him.” Appellant’s attorney had disclosed 

Dr. Knapke’s report to the prosecution in an attempt to 

secure a more favorable result for appellant in the 2013 case. 

Appellant was placed on probation as part of a plea 

deal in the 2013 case. After his arrest for Fisher’s murder in 

2017, during a recorded phone conversation appellant had in 

jail (which was played for the jury), appellant made the 

following aside: “I was here in 2013, for -- you know, I beat 

50 years in 2013.”

6. The Arias Incident

a. Ruling on Admissibility

At the time he killed Fisher, appellant was enrolled as 

a student at Antelope Valley College. Cinthia Arias was also 

a student there. Before trial, the People filed a motion in 

limine to introduce evidence of an incident several weeks 

before Fisher’s killing, in which appellant made aggressive 

sexual advances on Arias at their school. The People 
15

expressed an intent to use this evidence to argue that 

appellant made a sexual advance on Fisher. Anticipating an 

objection that the evidence was barred by Evidence Code 

section 1101, subdivision (a), which prohibits the admission 

of evidence of a defendant’s uncharged conduct to prove he 

acted in conformity with a propensity for such conduct, the 

People argued the evidence was admissible to prove motive 

under Evidence Code section 1101, subdivision (b), which 

allows the use of evidence of a defendant’s uncharged act to 

prove a fact “other than his or her disposition to commit such 

an act.” Specifically, the People argued that by supporting 

an inference that appellant made a sexual advance on Fisher, 

the evidence supported a further inference that Fisher’s 

rejection of this advance motivated appellant to kill her. 

Appellant filed a motion in limine to exclude the evidence. 

The trial court held a hearing on the admissibility of 

evidence of the Arias incident. After the court noted there 

was no independent evidence that appellant made a sexual 

advance on Fisher, the prosecutor argued as follows: “I’m not 

alleging a sexual assault because in my mind nothing like 

that happened, but what did happen is he propositioned her. 

She said no and he became angry and attacked her. And I’m 

going to argue that with or without Miss Arias. But I think 

that is something that will sound somewhat outlandish to a 

lot of jurors if they don’t understand that he is a person who 

is comfortable doing that.” The court ultimately accepted 

this reasoning, stating, “I think what [the prosecutor is] 

saying is, look, unlike most people, unlike most men, 
16

[appellant] has a certain comfort level. It’s driven by a 

motive for female companionship or for sex, but he has this 

motive coupled with this comfortableness where he doesn’t 

mind approaching women in ways that can be highly 

offensive toward women. And that because he has exhibited 

that comfort level just three weeks prior, that is 

circumstantial evidence that that’s what happened in this 

case. That when he propositioned the current victim in this 

manner, it went bad in the sense that she reacted negatively, 

perhaps even strongly. That then caused him to react and 

there was this building up and escalation until there was 

this physical alteration that led to death.” The court 

concluded the evidence was admissible for the proffered 

purpose under Evidence Code section 1101, subdivision (b). 

b. Arias’s Testimony

Arias testified that in June 2017, several weeks before 

Fisher’s killing, she visited the college’s office and saw 

appellant, whom she did not know, sitting inside. While she 

waited to speak with a college employee, appellant came up 

behind her, and she felt an object strike her leg and fall to 

the floor. She ignored it until appellant said, “Ma’am, you 

dropped something on the floor.” She picked up the object 

and, discovering it was a condom, discarded it, telling

appellant it was not hers. He reiterated that he had seen it 

fall out of her pocket. The college employee then became 

available to speak with Arias. During their conversation, 

within earshot of appellant, Arias stated her phone number. 
17

When Arias left the office, appellant followed her. She 

testified, “He kept telling me -- he kept referring back to the 

condom. Kept saying, ‘Ma’am, ma’am, I know it’s yours.’ 

Wanting me to show him how to use it because I was an 

older woman. And by that point I got really scared so I ran 

into my car and drove off. [¶] . . . [¶] Even though I could 

have walked to where I was going.” She told appellant she 

was married and uninterested, but he persisted in following 

her to her car. 

Arias circled the campus in her car to prevent 

appellant from discerning her destination. When she parked, 

she received a phone call from an unknown number, which 

she answered. The caller identified himself as “the guy with 

the condom incident,” and asked her to have coffee with him, 

again referring to the condom and asking her to show him 

how to use it. She said no, reiterated that she was married, 

and hung up. Preparing to block his phone number, she 

noticed she had received text messages from the same 

number, including a message stating, “‘I find you very 

attractive!!!’” Feeling “really scared,” she blocked the 

number and reported the incident to the on-campus sheriff’s 

office. 

On cross-examination, Arias acknowledged that 

appellant had not threatened her or displayed anger. 

B. Defense Case

Appellant did not testify. He called only one witness, 

psychiatrist Jack Rothberg, M.D., Ph.D. Dr. Rothberg 
18

testified that mental health records dating back to 2003, 

when appellant was 16 years old, reflected diagnoses of 

ADHD and bipolar disorder. The records also reflected an 

unusually large gap between appellant’s verbal IQ and 

performance IQ, which was indicative of a problem in the 

structure of his brain. A 2003 report of brain imaging 

results reflected “a great many abnormalities,” including 

abnormalities affecting areas of the brain controlling 

emotions and decisionmaking. Other records indicated 

appellant was placed on a psychiatric hold in 2011 as a 

result of erratic behavior, including “running around naked 

in the desert believing that people were trying to kill him.” 

These records also stated that appellant denied his psychosis, 

which Dr. Rothberg interpreted to show that appellant had 

little insight into his medical condition, increasing the 

likelihood he would believe his delusions were real and act 

upon them. Later medical records were consistent with 

these. Additionally, non-medical records from appellant’s 

college indicated that appellant had cut the cord to a camera 

during a computer class, for no apparent reason other than 

presumed paranoia. 

In addition to reviewing appellant’s medical records, 

Dr. Rothberg received a summary of appellant’s father’s 

description of appellant’s symptoms, and personally 

examined appellant on January 23, 2019. Dr. Rothberg 

opined, “He’s got major mental disorder, a psychosis, which 

simply means he has delusions and hallucinations at times.” 

He defined delusions as thoughts “out of touch with reality,”
19

such as a belief that one’s life is being threatened by 

Martians, and hallucinations as false sensory perceptions. 

Dr. Rothberg continued, “Now, to be more specific, it is 

challenging because he has a second problem, which is the 

substance abuse and, in particular, the use of 

methamphetamine, which aggravates the psychosis. . . . 

[O]rdinary people, if they use enough methamphetamine, 

will become delusional. They will become paranoid, and they 

may hear voices. So those two interact, and it is difficult to 

know how much is one and how much is the other.” With 

reference to Dr. Knapke’s 2013 report, he testified, “[I]f there 

is ongoing use of drugs, then you really don’t know what’s 

going to be left when the drugs stop and whether it is going 

to go in one direction or another. So that’s why it is 

difficult.” He concluded that appellant had a severe mental 

illness, and that diagnoses of schizophrenia, bipolar disorder, 

and schizo-affective disorder all “could potentially be 

correct.”

Dr. Rothberg indicated that appellant’s symptoms were 

not limited to hallucinations and delusions. Specifically, he

testified that appellant’s illness caused “substantially 

impaired ability to make a rational decision.” Dr. Rothberg 

elaborated, “He doesn’t have restraint. He can’t say, ‘Well, if 

I do such and such, this will follow.’ So he’s just thinking 

about that in a very kind of primitive, almost animal-like 

way.” 

On cross-examination, Dr. Rothberg testified that 

appellant’s medical records made “many” references to 
20

concerns of malingering, which he defined as “feigning or 

pretending an illness that does not exist.” He further 

testified, “[I]n this case, there is certainly evidence of the 

capacity to malinger. [¶] . . . [¶] Not always being truthful, 

exaggerating, taking advantage of certain situations. So I 

think what we’ve got is some serious, real problems, and also 

this additional component which we can’t really deny.” 

Dr. Rothberg acknowledged he had concluded, in a written 

report, that appellant had substantial antisocial personality 

characteristics. He had further concluded appellant was 

prone to violence, and could be manipulative, aggressive, 

threatening, intimidating, and predatory. 

The parties stipulated to the following testimony from 

forensic psychiatrist Risa Grand, M.D., which was read into 

the record: “The defendant meets criteria for unspecified 

schizophrenia spectrum and other psychotic disorder. He 

may meet diagnostic criteria for schizoaffective disorder 

versus substance-induced psychosis. I do believe he 

demonstrated symptoms of paranoia, a belief in a conspiracy 

theory, and unusual presentation of seeming sweaty. He 

may have been using methamphetamine at the time of the 

instant offense. [¶] I do believe he has a major mental 

illness, has received treatment for it since he was 15 years 

old, and symptoms were present at the time of the instant 

offense. He also has a history of cannabis use disorder, 

amphetamine-type use disorder, and alcohol use disorder.”
21

C. Jury Instructions

The trial court instructed the jury on premeditated and 

deliberate murder, and further instructed the jury that it 

could consider evidence of hallucinations, provocation, and 

voluntary intoxication in deciding whether appellant 

premeditated and deliberated. The court also delivered 

instructions on two theories of voluntary manslaughter, viz., 

heat of passion and “imperfect” self-defense. Outside the 

presence of the jury, the court declined to instruct the jury 

on “complete” self-defense, explaining, “The defendant did 

not testify. He did not claim self-defense. None of [his] 

statements to the detectives asserted any type of self-defense. 

There are no statements to the doctors claiming self-defense. 

There were no pieces of physical evidence that indicated 

self-defense. [¶] Now, the defendant did have a slight bruise 

under one of his eyes, but that by itself, without anything 

more, I don’t think is enough to give self-defense. [¶] We 

have a victim who has strangulation marks, who was killed, 

in that regard. We have the defendant with no injuries that 

would indicate any type of need for a deadly use of force.” 

The court instructed the jury, per CALCRIM No. 362, 

that if appellant had made a false or misleading pretrial 

statement related to the charged crime, “knowing the 

statement was false or intending to mislead,” the jury was 

permitted to infer that the statement showed he “was aware 

of his guilt of the crime . . . .” The instruction continued, “If 

you conclude that the defendant made the statement, it is up 

to you to decide its meaning and importance.” The court 
22

further instructed the jury, per CALCRIM No. 3428, that it 

could consider evidence that appellant “suffered from a 

mental disease or defect or disorder . . . only for the limited 

purpose of deciding whether, at the time of the charged 

crime, the defendant acted with the intent or mental state 

required for that crime.” Defense counsel did not object to 

these instructions or request modification. 

The court instructed the jury that it was permitted to 

consider evidence of appellant’s uncharged conduct (i.e., the 

Arias incident) in deciding whether appellant “had a 

willingness to proposition women in certain ways . . . .” It 

further instructed the jury that the attorneys’ arguments 

were not evidence and should be disregarded to the extent 

they were inconsistent with the jury instructions. 

D. Guilt-Phase Arguments and Verdict4

The first prosecutor to deliver closing argument argued 

that appellant and Fisher became embroiled in a conflict 

upon her completion of her work on his refrigerator. The 

prosecutor continued, “I don’t know what the conflict 

necessarily is about, right? From the evidence we heard, it 

sounds like knowing how he is, . . . probably he hit on her. . . . 

And I’m sure she turned him down. [¶] . . . [¶] But it doesn’t 

matter what the conflict is about. Whether it was that [i.e., 

4 We provide additional information concerning the 

guilt-phase arguments in our discussion of appellant’s challenges 

to many remarks made by the prosecutors. 
23

Fisher’s rejection of an advance], whether it was that he was 

unhappy with the refrigerator work, it cost too much money, 

whatever it is, it does not really matter. The point is [he] 

gets mad at her about something. And he punches her in the 

face at least 24 times. Because . . . there are 24 separate 

bruises or abrasions on her.”

5 Noting that appellant was 

much larger than Fisher, he argued appellant’s blows caused 

Fisher to fall to the ground before he strangled her.6 

The prosecutor argued the fact that appellant inflicted

numerous blows to Fisher’s body and strangled her for a 

substantial period of time -- which he estimated as two 

minutes, relying on the medical examiner’s testimony that 

the brain began to die after 90 seconds -- proved the killing 

was premeditated and deliberate. He asked the jury to 

imagine that appellant was “crushing her with all of his 

strength and weight to kill her” throughout the two minutes, 

and argued, “That is an eternity that she is there struggling 

and dying. And every one of those seconds, he could have 

stopped. Don’t tell me he didn’t think about what he was 

doing and decide to just do it. [¶] There is no way to do this 

5 The prosecutor understated the number of bruises and 

abrasions on Fisher’s body. The People observe, and appellant 

does not dispute, that the medical examiner identified an 

estimated 36 such injuries. 

6 According to the medical examiner, Fisher was 5’ 4” tall, 

and weighed 165 pounds. Appellant, who had played football at 

his college the year before, told the detectives he was 6’ 1” tall, 

and weighed nearly 300 pounds. 
24

to another person and not realize what he is doing, and 

decide to finish it. That is a first degree murder.”

The prosecutor argued there was no evidence that 

Fisher provoked appellant. Acknowledging that the 

evidence indicated Fisher punched appellant, he argued that 

she did so only in self-defense. Noting her relatively smaller 

frame, he characterized the theory that appellant acted in 

self-defense as “ridiculous.” 

Defense counsel argued the case was “about . . . 

delusion and mental illness.” He asserted that the imperfect 

self-defense theory of voluntary manslaughter is satisfied 

where either the defendant’s belief in an imminent threat or 

his belief in the need to counter the threat with deadly force 

is “unreasonable, i.e., delusion.” Similarly, he asserted that 

the theory concerns “[t]he notion someone’s head is not 

screwed on right and delusional.” Relying exclusively on 

evidence of appellant’s delusions, he argued appellant acted 

on a belief that he needed to defend himself from Fisher. 

Specifically, he implied appellant acted on a delusional belief 

that Fisher was planting or retrieving a surveillance device 

in the refrigerator.7 

Defense counsel urged the jury to reject, as speculative, 

the prosecution theory that appellant made a sexual advance 

on Fisher. In the alternative, he asked the jury to assume 

7 As explained below, defense counsel’s “delusional 

self-defense” theory was invalid as a theory of manslaughter. 

(People v. Elmore (2014) 59 Cal.4th 121, 130 (Elmore).)
25

the truth of the sexual-advance theory, and argued that 

Fisher responded to the advance by insulting or punching 

appellant, provoking him into a heat of passion. 

Defense counsel argued the prosecution had failed to 

prove premeditation and deliberation, particularly in light of

Dr. Rothberg’s testimony that appellant’s mental illness 

interfered with his decisionmaking and impulse control. He 

disputed the prosecutor’s assertions that appellant punched 

Fisher 24 times and strangled her for two minutes, 

characterizing the assertions as an attempt to inflate the 

time in which appellant might have deliberated. He 

reminded the jury that it could consider evidence of 

hallucinations or voluntary intoxication in deciding 

premeditation and deliberation, asking, “[H]ow can you 

meaningfully deliberate if you’re laboring under [a] 

delusion? . . . Are you meaningfully reflecting if you think 

that there’s something -- somebody is planting a device in 

your refrigerator?” 

A different prosecutor delivered the rebuttal. While 

suggesting that appellant made a sexual advance on Fisher 

as he had made on Arias, she argued it was immaterial 

whether appellant became angry with Fisher because of the 

rejection of a sexual advance or any other reason, such as 

dissatisfaction with the refrigerator repair. She argued that 

premeditation and deliberation were shown by appellant’s 

inflicting many blows on Fisher’s body and strangling her for 

a substantial period of time. 
26

The jury convicted appellant of murder and found the 

murder premeditated and deliberate. 

E. Sanity Phase

At the sanity phase, appellant waived his right to a 

jury trial. Forensic psychiatrist Rose Pitt, M.D., was the sole 

sanity-phase witness. A psychological report she had 

written, based on interviews with appellant conducted over 

six days between February 2018 and May 2019, was 

admitted into evidence. All evidence from the guilt phase, 

including the testimony of Drs. Grand, Rothberg, and 

Knapke, was admitted into the sanity-phase record. Two 

reports by Dr. Grand and two reports by Dr. Rothberg were 

also admitted. 

1. Dr. Pitt’s Report and Testimony

In her own words, Dr. Pitt’s report “exhaustively”

recited appellant’s statements. These included his 

statement that he had resisted the instructions of voices that 

“wanted him to do something against his values and morals; 

they wanted him to kill an African-American.” In his first 

five interviews with Dr. Pitt, appellant consistently claimed 

he did not recall being present when Fisher was killed. In 

his fifth interview, he told Dr. Pitt that while Fisher had 

been working on the refrigerator, he had heard voices 

talking about a surveillance device in the house. The voices 

also had told him that he would “have to suck Black dicks for 

the rest of his life,” and that a man he had stolen from was 
27

going to kill him. He also had heard his parents’ voices 

telling him to protect them. He told Dr. Pitt he had been 

suspicious of Fisher because she had not really fixed 

anything. But he maintained that he did not recall being 

present when Fisher was killed. 

In his sixth and final interview, appellant told Dr. Pitt 

that he recalled fatally strangling Fisher. He again claimed 

to have heard his parents’ voices telling him to protect them, 

but clarified that he had not heard any voice telling him to 

kill Fisher. Instead, he had grown suspicious of her because 

she had looked under the refrigerator, put something in her 

pocket, and failed to accomplish anything helpful. He had 

concluded she was present to use a surveillance device to 

collect evidence related to his theft from one man and his 

unspecified connection to another man. He had further 

concluded she was a “snitch” who would deliver this evidence 

to the men, who would then kill him and his parents. He 

had therefore ambushed her from behind, causing her to 

strike him in an attempt to defend herself. After she had 

fallen unconscious, he had “‘felt remorse,’” moved her to a 

couch, and unsuccessfully attempted to restore her breathing. 

He told Dr. Pitt, “‘It was horrific, I’m not sitting here making 

excuses, I am just telling you why I did it.’” Dr. Pitt 

concluded, “He was very conflicted about hurting her but 

wanted to prevent her from giving the recording devi[c]e to 

someone who would then kill him and his family.”

Dr. Pitt opined that appellant had a psychotic illness 

independent of any substance use disorder, and that he had 
28

not malingered. She concluded that appellant had 

understood the nature of his actions at the time he killed 

Fisher. She further concluded, “[Appellant] did understand

the difference between right and wrong but not the 

wrongfulness of his actions at the time of the instant offense 

due to his psychotic mental illness.” Similarly, she testified, 

“I believe that he understood that to kill someone was wrong, 

but he committed the crime because of his delusional beliefs 

that the victim [Fisher] . . . was in collusion with other 

people that wanted to hurt him and that he was going to be 

killed and/or his family.” More specifically, she opined that 

appellant had believed Fisher would plant or retrieve a 

surveillance device and thereby “provide information to 

other people who were going to hurt him . . . .” 

2. Dr. Grand’s Reports

Dr. Grand’s first report was prepared in September 

2018, after an examination of appellant the month before. 

She opined that appellant had understood the nature and 

quality of his actions at the time of Fisher’s killing. She 

indicated she was unable to form an opinion on whether he 

had understood the wrongfulness of his actions, as appellant 

had been unable or unwilling to discuss Fisher’s killing with 

her. She noted, “He minimized his ability to remember what 

happened on the day of the instant offense and did not want 

to implicate himself, which directly is concerning and goes 

against being able to plead [not guilty by reason of 

insanity].” 
29

Dr. Grand’s second report was prepared in June 2019, 

after she had reviewed additional materials, including 

Dr. Pitt’s report and an investigator’s notes from a 

November 2018 interview of appellant. According to 

Dr. Pitt’s report, appellant claimed that he had been 

uncomfortable during Dr. Grand’s examination due to the 

proximity of corrections officers, and that Dr. Grand had 

spoken with him for only a short time before abruptly 

terminating her examination when he failed to immediately 

respond to a question about Fisher’s killing. Dr. Grand 

acknowledged that she had examined appellant near 

corrections officers, but found his description of her 

examination misleading, noting she had spoken with 

appellant for nearly an hour before he refused to discuss the 

killing. 

The investigator’s notes indicated that appellant had 

given an account of the killing similar to his account in his 

final interview with Dr. Pitt: Fisher’s behavior made him 

suspicious and led him to conclude that she was planting a 

surveillance device for a purpose related to his prior theft 

from the Aryan Brotherhood. He heard his parents’ voices

telling him to protect them, leading him to believe that 

Fisher’s surveillance would eventually endanger his and his 

parents’ lives. He strangled Fisher for 60 seconds, rendering 

her unconscious, and then strangled her for another 30 

seconds to ensure she was dead. Appellant told the 

investigator, “‘I didn’t want her to be alive at all. I didn’t 

want her to snitch me out and hurt me and my family.’” He 
30

further stated he had searched Fisher’s body, found her 

driver’s license, and wiped his fingerprints off the license. 

Dr. Grand opined that the evidence for an insanity 

finding was “extremely” weak. She explained, “With regard 

to moral and legal wrongfulness, while it is possible that he 

did not at the instant time of the crime appreciate the moral 

or legal wrongfulness of his actions, there is more data in my 

mind to suggest that he did understand that it was wrong, 

based on the fact that he has given inconsistent stories and 

accounts of the reasons for his actions of what occurred that 

day, his attempt to clean the crime scene including wiping 

fingerprints, his lack of expression of concern for these overt 

delusions and auditory hallucinations he stated he 

experienced not being shared with police officers during 

interviews initially[,] and . . . [appellant’s] inconsistent 

account of my interactions with him in [Dr. Pitt’s] report, 

which leads me to believe that the defendant habitually 

misinterprets situations to his benefit, lies, and may even 

overstate symptoms and pejorative actions towards him.” 

3. Dr. Rothberg’s Reports

Dr. Rothberg’s first report was prepared in January 

2019, after an examination of appellant earlier that month. 

During the examination, appellant “acknowledge[d] that 

many of the things he had said to the detective[s] were 

fabricated lies to avoid criminal responsibility.” He further 

acknowledged that he had strangled Fisher, claiming to have 

heard his parents’ voices telling him to protect them. 
31

Appellant did not claim to have believed that Fisher was 

planting or retrieving a surveillance device, or that she 

would deliver information to anyone who would kill him or 

his parents; rather, he claimed to have believed that Fisher’s 

actions would “manipulate him to do things for blacks, like 

suck their dicks.” He claimed to have felt he was in jeopardy, 

but acknowledged that Fisher had done “nothing specific” to 

cause him to feel that way. Dr. Rothberg did not expressly 

address whether appellant had understood the wrongfulness 

of the killing. 

Dr. Rothberg’s second report was prepared in May 

2019, after Dr. Rothberg had reviewed additional documents, 

including records of appellant’s treatment at Antelope Valley 

Rehabilitation Center in 2015. These records “confirm[ed] 

the presence of very substantial polysubstance abuse,” and 

indicated that appellant had a “long history” of both 

malingering and violence, including violence “apart from 

psychosis . . . .” Dr. Rothberg found the additional evidence 

of malingering “not completely surprising, especially in light 

of [appellant’s] concocted story to the police regarding what 

had happened during the murder.” Again, Dr. Rothberg did 

not expressly address whether appellant had understood the 

wrongfulness of the killing. Instead, he concluded, “All I can 

say is that [appellant] certainly has a psychotic disorder, 

that he becomes very violent and agitated when he is not on 

medication, that he has at times heard voices, but that he 

also has substantial antisocial personality characteristics, is 

prone to violence and acting-out behavior, in addition to 
32

substance abuse. One just cannot be certain what 

percentage of any of that mixture contributed to the murder 

of the victim in this case. I believe the most likely 

explanation is that it is a combination of severe mental 

disorder, combined with very substantial antisocial 

personality characteristics.” 

4. Sanity-Phase Arguments

Appellant’s counsel argued appellant had been

incapable of understanding the moral wrongfulness of killing 

Fisher at the time he killed her. Counsel urged the court to 

accept Dr. Pitt’s opinion to that effect, arguing she was the 

most reliable expert because she had spent the most time 

with appellant. He observed that appellant had told both 

Dr. Pitt and Dr. Rothberg that the killing resulted from a 

delusion. 

The prosecutor urged the court to accept Dr. Grand’s 

opinion that appellant likely had understood the moral 

wrongfulness of killing Fisher. He argued Dr. Pitt’s contrary 

opinion was unreliable, in part because she had relied on 

appellant’s report of a delusion that Fisher’s planting or 

retrieval of a surveillance device would eventually endanger 

his and his parents’ lives, despite appellant’s failure to 

report a delusion of that nature in his first five interviews 

with her. The prosecutor argued that appellant’s 

understanding of the wrongfulness of the killing was 

reflected in his attempts to hide or destroy evidence, his 

jailhouse statement to a friend that he had previously beaten 
33

a case in which he had faced a 50-year sentence, and his 

statement to the detectives that the reason for the killing 

implicated him and made him guilty of a crime. 

In rebuttal, appellant’s counsel again argued that the 

record supported an inescapable conclusion that appellant 

had experienced “paranoid schizophrenic delusional 

thinking” at the time of the offense. He neither specified the 

nature of appellant’s reported delusions, nor related them to 

appellant’s ability to understand the wrongfulness of the 

killing.

5. Sanity Verdict

The trial court found (as the parties had not disputed) 

that appellant had a mental disease or defect, but that he 

had understood the nature and quality of his actions at the 

time of the offense. The court further found that appellant 

had failed to establish, by a preponderance of the evidence, 

that he had been unable to understand the moral 

wrongfulness of his actions at the time of the offense. 

The court acknowledged that the evidence of 

appellant’s delusions indicated that at the time of the offense, 

appellant “lived in [an] altered reality to a degree where he 

felt that people were pursuing him.” However, the court 

found the nature of appellant’s delusions at the time of the 

offense to be critical, finding “he was not under the delusion 

that he had to kill [Fisher] for his protection or his family’s 

protection.” The court reasoned that such a delusion was 

inconsistent with appellant’s actions, inferring appellant’s 
34

consciousness of guilt from, inter alia, the following: (1)

appellant’s attempts to hide or destroy evidence, reflected in 

his dragging Fisher’s body from the kitchen to the garage 

and washing clothing immediately after the killing; (2) 

appellant’s “elaborate” false statements to the detectives 

about an intruder, which displayed “a level of 

sophistication”; and (3) appellant’s claim to Dr. Pitt, which 

the court found to be false, that he had attempted to place 

Fisher on a couch and restore her breathing. Among the 

four experts who had provided evidence -- Drs. Grand, 

Rothberg, Knapke, and Pitt -- the court found Dr. Pitt the 

least helpful, reasoning that her reliance on appellant’s 

statements had been excessive and “unquestioning,” in light 

of her failure to address inconsistencies in his statements. 

The court concluded, “This [decision] weighed heavily 

on my mind last night. I was very well aware that if I found 

him sane and if I got it wrong, that he would be spending a 

lifetime in some very difficult conditions. . . . I have family 

members who are dealing with . . . other mental issues, and I 

even thought about . . . how would I feel if my family 

member . . . were put into a prison situation, wouldn’t I want 

something more for them? And so I’m keenly aware of the 

implication of my decision. It was a hard decision but I 

think I need to make the right decision. And so I ultimately 

find him sane. [¶] I wish that weren’t the case. I wish we 

could do something else, but I think ultimately, justice for 

the family and just the right result drives this decision.”
35

F. Sentencing

Appellant admitted the truth of the three-strikes and 

serious-felony allegations concerning his 2013 conviction for 

criminal threats. Appellant’s counsel made an oral Romero

motion to strike the three-strikes enhancement, submitting 

on the 2013 conviction’s age and, generally, the record before 

the court. The court denied the motion, observing that the 

2013 conviction was not very remote in time and finding that 

appellant fell squarely within the spirit of the three strikes 

law. Appellant’s counsel did not ask the court to exercise its 

discretion to strike the serious-felony enhancement.

The court sentenced appellant to an aggregate term of 

55 years to life, comprising a 25-years-to-life term on the 

first degree murder conviction (doubled under the three 

strikes law) and the five-year serious-felony enhancement. 

Appellant timely appealed. 

DISCUSSION

Appellant challenges the guilty verdict on the grounds 

that (1) no substantial evidence supported the jury’s finding 

of premeditation and deliberation; (2) the trial court 

prejudicially erred by admitting the evidence of the Arias 

incident; (3) the court prejudicially erred by failing to modify 

CALCRIM No. 3428 to permit the jury to consider evidence 

of appellant’s mental illness in deciding whether his false 

pretrial statements to the detectives were knowingly false, 

as necessary to support an inference of consciousness of 

guilt; (4) many of the prosecutors’ remarks during closing 
36

argument constituted misconduct; and (5) his trial counsel 

were ineffective for failing to object to the admission of 

testimony from appellant’s father regarding appellant’s 

motive for reporting an intruder several weeks before 

Fisher’s killing. Appellant also challenges the sanity verdict, 

contending the trial court misapplied the law by relying on 

its personal belief that finding appellant sane was necessary 

to deliver justice to Fisher’s family, and asserting that the 

court erred in various ways in describing and weighing the 

sanity-phase evidence. We construe appellant’s assertion of 

the latter errors as a contention that no substantial evidence 

supported the sanity verdict under the proper legal standard. 

Finally, appellant challenges his sentence on the ground 

that his trial counsel were ineffective for failing to ask the 

court to exercise its discretion to strike his five-year seriousfelony enhancement. 

A. Premeditation and Deliberation

Appellant contends no substantial evidence supported 

the jury’s finding that his murder of Fisher was 

premeditated and deliberate. 

1. Principles

A decision to kill is “premeditated” if considered 

beforehand and “deliberate” if resulting from careful thought 

and weighing of competing considerations. (People v. Lee

(2011) 51 Cal.4th 620, 636.) The required extent of reflection 

may occur quickly. (Ibid.) “A finding of deliberation and 
37

premeditation is not negated by evidence a defendant’s 

mental condition was abnormal or his perception of reality 

delusional unless those conditions resulted in the failure to 

plan or weigh considerations for and against the proposed 

course of action.” (People v. Stress (1988) 205 Cal.App.3d 

1259, 1270; accord, People v. Bobo (1990) 229 Cal.App.3d 

1417, 1434, review granted Oct. 11, 1990 (S016988) and 

opinion superseded (Cal. 1990) 274 Cal.Rptr. 370, and 

publication ordered Dec. 11, 1991 (Cal. 1991) 3 Cal.Rptr.2d 

677.) 

In assessing the sufficiency of evidence of 

premeditation and deliberation, courts often consider three 

“Anderson factors”: planning, motive, and manner of killing. 

(People v. Shamblin (2015) 236 Cal.App.4th 1, 10 & fn. 16 

(Shamblin), citing People v. Anderson (1968) 70 Cal.2d 15, 

26-27.) The Anderson factors are merely guidelines. (People 

v. Gonzalez (2012) 54 Cal.4th 643, 663.) Although motive is 

one Anderson factor, “the lack of a discernable rational 

motive does not preclude a conviction for first degree 

premeditated murder.” (People v. Whisenhunt (2008) 

44 Cal.4th 174, 202; accord, People v. Thomas (1992)

2 Cal.4th 489, 519 (Thomas) [“‘A senseless, random, but 

premeditated, killing supports a verdict of first degree 

murder’”].)

“In reviewing a sufficiency of evidence challenge, we 

view the evidence in the light most favorable to the verdict 

and determine whether any rational trier of fact could have 

found the essential elements of the crime proven beyond a 
38

reasonable doubt.” (People v. Gonzalez, supra, 54 Cal.4th at 

653.) We do not review “the theories articulated in the 

prosecutor’s argument,” but instead review “the evidence 

presented and the possible inferences drawn therefrom . . . .” 

(People v. Perez (1992) 2 Cal.4th 1117, 1125-1126; accord, 

People v. Clark (2011) 52 Cal.4th 856, 947.)

2. Analysis

Substantial evidence supported the jury’s finding of

premeditation and deliberation. The manner in which 

appellant killed Fisher strongly supported the jury’s finding. 

The medical examiner’s testimony supported findings that 

appellant applied sufficient pressure to Fisher’s neck to 

cause internal bleeding and block her carotid arteries, and 

maintained that level of pressure for at least 90 seconds. 

(See Shamblin, supra, 236 Cal.App.4th at 11 [evidence that 

defendant “applied significant force to the victim’s neck for a 

significant period of time” weighed in favor of finding 

premeditation and deliberation].) Further, the jury 

reasonably could have inferred that appellant dealt Fisher a 

series of blows before the fatal strangling in order to 

overcome her resistance, as evidenced by (1) Fisher’s many 

bruises and abrasions; (2) the medical examiner’s 

interpretation of Fisher’s wounds as evidence that she had 

attempted to defend herself, both by blocking a blow to her 

chest or head, and by punching her assailant; (3) the 

evidence of appellant’s DNA under Fisher’s fingernails; and 

(4) appellant’s black eye. (See id. at 12 [defendant’s hitting 
39

victim’s head several times, while victim fought back, 

“necessarily prolonged the duration of defendant’s attack 

and thus afforded him additional time to deliberate on his 

decision to kill the victim” (footnote omitted)].) The jury 

reasonably could have inferred that in the course of 

battering Fisher to overcome her resistance and crushing 

her neck for 90 seconds or more, appellant considered what 

he was doing and made a deliberate decision to end Fisher’s 

life. (See ibid. [evidence of approximately five-minute 

strangulation preceded by struggle was “substantial 

evidence of premeditation and deliberation in itself”]; cf. 

People v. Williams (2018) 23 Cal.App.5th 396, 412 [where 

“the victim was stabbed twice in the neck, had a defensive 

cut on her thumb, and had recent blunt force injuries,” jury 

reasonably could have interpreted victim’s injuries as 

evidencing premeditation and deliberation].)

Evidence of motive further supported a finding of 

premeditation and deliberation, as the jury reasonably could 

have inferred that appellant was motivated to kill Fisher in 

retaliation for her perceived role in planting or retrieving a 

surveillance device in his refrigerator. Indeed, appellant’s 

own counsel implied this was his motive. It is immaterial 

that the prosecution did not argue this motive. (See People v. 

Perez, supra, 2 Cal.4th at 1125-1126; People v. Clark, supra, 

52 Cal.4th at 947.) It is also immaterial that this motive 

was delusional. (See People v. Bobo, supra, 229 Cal.App.3d 

at 1433-1436 [substantial evidence supported jury finding 

that defendant’s killing of her children was premeditated 
40

and deliberate, where defendant was motivated by paranoid 

delusion that killing was necessary to save children from 

worse fate, and defendant was “purposefully planning and 

acting in the context of that delusion”]; People v. Stress, 

supra, 205 Cal.App.3d at 1268-1271 [“strong” evidence 

supported trial court’s finding, after bench trial, of 

premeditation and deliberation, where defendant’s killing of 

his wife was motivated by desire to draw public attention to 

his delusional conspiracy theories, even though trial court 

found this motive delusional and “‘crazy’”].)

In sum, the jury’s finding of premeditation and 

deliberation was supported by substantial evidence. Though 

the Anderson factors are merely guidelines, they support our 

conclusion, as there was both evidence of motive and strong 

manner-of-killing evidence.

B. Evidence of Uncharged Conduct

Appellant contends the trial court prejudicially erred 

by admitting evidence of the Arias incident, which he argues 

should have been excluded under the relevance rule, 

Evidence Code section 1101, or Evidence Code section 352. 

We agree the evidence was admitted in violation of Evidence 

Code section 1101. However, we conclude the error was 

harmless. 

1. Principles

Generally, “evidence of a person’s character or a trait of 

his or her character,” including such evidence in the form of 
41

“evidence of specific instances of his or her conduct,” is 

inadmissible “when offered to prove his or her conduct on a 

specified occasion.” (Evid. Code, § 1101, subd. (a).) This rule 

does not prohibit the admission of “evidence that a person 

committed a[n] . . . act when relevant to prove some fact 

(such as motive . . .) other than his or her disposition to 

commit such an act.” (Id., § 1101, subd. (b).) “‘[T]he 

probativeness of other-crimes evidence on the issue of motive 

does not necessarily depend on similarities between the 

charged and uncharged crimes, so long as the offenses have 

a direct logical nexus.’”

8 (People v. Fayed (2020) 9 Cal.5th 

147, 191 (Fayed).)

The erroneous admission of evidence violates a 

defendant’s federal due process rights if it renders the trial 

fundamentally unfair. (People v. Covarrubias (2011) 202 

Cal.App.4th 1, 20 (Covarrubias); cf. People v. Abilez (2007) 

41 Cal.4th 472, 503 [exclusion of proffered defense evidence 

violates federal constitutional right to present defense only 

in “extraordinary and unusual” circumstances].) Otherwise, 

the erroneous admission of evidence violates only state law 

8 The People assert that People v. Daveggio and Michaud

(2018) 4 Cal.5th 790 established an eight-part test for evaluating 

the admissibility of evidence of uncharged conduct. Not so. At 

the cited portion of Daveggio, our Supreme Court merely noted, 

as factual background, the trial court’s articulation of eight 

factors it considered in deciding whether evidence of uncharged 

conduct was inadmissible under Evidence Code section 352. (Id.

at 822.) 
42

and is reviewed for prejudice under the standard established 

in People v. Watson (1956) 46 Cal.2d 818, requiring reversal 

only if it is reasonably probable that the defendant would 

have obtained a more favorable result had the evidence been 

excluded. (Covarrubias, supra, 202 Cal.App.4th at 21.) A 

“‘reasonable’” probability under this test is one sufficient to 

undermine the reviewing court’s confidence in the outcome. 

(In re Richards (2016) 63 Cal.4th 291, 312-313.)

2. Error

We conclude the trial court erred in admitting evidence 

of the Arias incident and in instructing the jury that it could 

consider such evidence in deciding whether appellant had “a 

willingness to proposition women in certain ways . . . .” The 

evidence of appellant’s actions toward Fisher was not 

admitted to prove a fact “other than his . . . disposition” to 

commit such actions, as necessary to qualify for admission 

under Evidence Code section 1101, subdivision (b). Though 

the evidence was ostensibly offered and admitted to prove 

motive, it was probative of motive only through the following 

series of inferences: (1) appellant had a propensity for 

making sexual advances on unfamiliar women, as he did 

with Arias; (2) appellant acted in conformity with that 

propensity by making a sexual advance on Fisher; (3) Fisher 

rejected his advance; and (4) Fisher’s rejection motivated 

appellant to kill her in retaliation. Evidence Code section 

1101, subdivision (a), barred use of the evidence to prove the 

first two inferences. Without the prohibited propensity 
43

inferences, the Arias incident had no logical nexus to the 

instant offense, as necessary to render the Arias incident 

admissible to prove motive. (See Fayed, supra, 9 Cal.5th at 

191; cf. People v. Guerrero (1976) 16 Cal.3d 719, 726-729 

[trial court abused its discretion by admitting evidence of 

defendant’s prior rape of unrelated woman for purpose of 

proving defendant killed murder victim in course of 

attempted rape, where there was no independent evidence 

defendant attempted to rape murder victim].)9 

9 The cases on which the People rely do not assist them. In 

most, the courts deemed uncharged conduct admissible due to its 

similarities to the charged conduct. (See People v. Spector (2011) 

194 Cal.App.4th 1335, 1381-1385 [in prosecution for defendant’s 

murder of woman, trial court did not err by admitting “testimony 

from five women who, over a 20-year period, were the victims of 

armed assaults by [defendant]” to prove motive, where record 

revealed ten similarities among prior assaults, many of which 

were shared by charged offense]; People v. Kelly (2007) 42 Cal.4th 

763, 785-786 [in prosecution for defendant’s murder of woman 

met at fitness center in his apartment, evidence of defendant’s 

assault on other woman in same apartment several days earlier 

was admissible as part of “remarkably similar and consistent 

pattern” of luring women from fitness center and other locations 

to his apartment in order to rob and rape them]; People v. Kipp

(1998) 18 Cal.4th 349, 370-371 [uncharged and charged acts were 

“sufficiently similar to support an inference that defendant 

harbored the same intent” in committing both, where “the 

number and the distinctiveness of the shared characteristics” 

revealed “a highly distinctive pattern”].) In another, the court 

relied on a logical nexus between the charged and uncharged 

conduct independent of any prohibited propensity logic; 

specifically, the uncharged conduct suggested the defendant 

(Fn. is continued on the next page.)
44

3. Prejudice

We find no extraordinary circumstances of the type 

necessary to render the admission of the challenged evidence

a federal constitutional violation. (See Covarrubias, supra, 

202 Cal.App.4th at 20-21; People v. Abilez, supra, 41 Cal.4th 

at 503.) Thus, we ask only whether it is reasonably probable 

that appellant would have obtained a more favorable result 

had the evidence been excluded. (See Covarrubias, supra, at 

20-21.) We conclude it is not.

The jury was not faced with a close case. Appellant’s 

counsel properly conceded, in the face of overwhelming 

evidence, that appellant intentionally killed Fisher, leaving 

the jury to decide only whether the killing was voluntary 

manslaughter or murder and, if murder, whether it was 

premeditated and deliberate. The case for murder was 

overwhelming. Appellant’s heat of passion claim was 

founded on an admittedly speculative inference that 

appellant made a sexual advance on Fisher -- an inference 

his own counsel urged the jury to reject.10 His imperfect 

needed money at the time of the charged conduct, supplying a 

motive to rob. (See People v. Demetrulias (2006) 39 Cal.4th 1, 

14-15.) And in the People’s final cited case, we held uncharged 

conduct inadmissible to prove motive for the same reason we do 

here, viz., its lack of any logical nexus to the charged conduct. 

(See People v. Scheer (1998) 68 Cal.App.4th 1009, 1015, 

1019-1020.)

10 Appellant did not rely on evidence of delusions to support 

his heat of passion claim. Nor could he. (See People v. Padilla

(2002) 103 Cal.App.4th 675, 679 [“A perception with no objective 

(Fn. is continued on the next page.)
45

self-defense claim was premised on his counsel’s assertion 

that he acted on a purely delusional perception of Fisher as a

threat, and was therefore invalid at the guilt phase. (See 

Elmore, supra, 59 Cal.4th at 146 [“defendants who 

mistakenly believed that actual circumstances required their 

defensive act may argue they are guilty only of voluntary 

manslaughter, even if their reaction was distorted by mental 

illness. But defendants who contend they killed in 

self-defense because of a purely delusional perception of 

threat must make that claim at a sanity trial”].)11 Even 

disregarding the invalidity of his “‘delusional self-defense’”

claim (id. at 130), there was insufficient evidence to satisfy 

the imperfect self-defense doctrine’s requirement of an 

honest belief in an “‘imminent’” threat of death or great 

bodily injury (id. at 134). Nothing but speculation could 

reality cannot arouse the passions of the ordinarily reasonable 

person”].) 

11 In support of his challenges to the sanity verdict, appellant 

quotes Elmore’s conclusion that a self-defense claim based “‘solely 

on [a] delusion’” that allegedly “‘caused the defendant to perceive 

an illusory threat’” is a claim of insanity, and argues he 

“perceive[d] an illusory threat” in this manner. (Elmore, supra, 

59 Cal.4th at 140.) But in his challenges to the guilty verdict, 

appellant fails to acknowledge that under Elmore, it was 

improper for his counsel to rely on identical reasoning to urge 

reduction of the murder to voluntary manslaughter. (See id. at 

145 [“a claim of delusional belief in the need for self-defense is 

reserved for the sanity phase, where it may result in complete 

exoneration from criminal liability. [Citation.] It may not be 

employed to reduce a defendant’s degree of guilt”].) 
46

support a finding that appellant drew a connection between 

Fisher and any of his prior delusions, other than his delusion 

concerning a surveillance device in the refrigerator she was 

repairing. There was no evidence appellant irrationally 

perceived surveillance as an imminent physical threat. 

Indeed, appellant neither testified nor claimed, in his 

admitted pretrial statements, that he had perceived Fisher

as an imminent physical threat. Faced with the compelling 

physical evidence that appellant was the aggressor, no 

reasonable juror could have found a reasonable doubt 

whether appellant had acted on such a perception.

The case for premeditation and deliberation was also 

strong. As explained above, the evidence that appellant 

battered Fisher to overcome her resistance and crushed her 

neck for 90 seconds or more strongly supported an inference 

that appellant considered what he was doing and made a 

deliberate decision to end Fisher’s life. And the evidence 

reasonably suggested a motive for doing so, viz., retaliation 

for her perceived role in planting or retrieving a surveillance 

device in the refrigerator she was working on. This motive 

was consistent with Dr. Rothberg’s testimony that appellant 

had substantial antisocial personality characteristics, 

including tendencies toward violent and predatory behavior. 

In the face of this evidence, appellant neither testified nor 

previously claimed that his intent to kill had been impulsive 

rather than calculated; instead, in his only admitted 

statements, he denied killing Fisher at all. 
47

On this record, we find no reasonable likelihood 

appellant would have obtained a more favorable result had 

the evidence of the Arias incident been excluded. 

Appellant’s behavior toward Arias was hardly inflammatory 

compared to Fisher’s brutal killing, and to the unchallenged 

evidence that appellant had choked his mother for refusing 

to pay for drugs. Further, contrary to appellant’s contention, 

the evidence was not essential to “the prosecution’s main 

theory of the case . . . .” On the contrary, both prosecutors 

argued it was immaterial whether appellant attacked Fisher 

because of her rejection of a sexual advance (the only fact 

they sought to prove through the challenged evidence), or for 

some other reason.

In sum, we conclude that even had the court excluded 

the evidence of the Arias incident, the jury would have found 

appellant guilty of premeditated and deliberate murder. We 

therefore find the evidence’s admission harmless. (See In re 

Richards, supra, 63 Cal.4th at 312-313.)

C. CALCRIM No. 3428

Appellant contends the trial court prejudicially erred 

by failing to modify CALCRIM No. 3428 (prohibiting the jury 

from considering evidence of appellant’s mental illness for 

any purpose other than determining his mental state at the 

time of the offense) to permit the jury to consider evidence of 

his mental illness in deciding whether his false pretrial 

statements to the detectives were knowingly false, in light of 

the court’s delivery of CALCRIM No. 362 (allowing the jury 
48

to infer consciousness of guilt from any knowingly false 

pretrial statements related to the offense). He acknowledges 

his counsel did not object or request modification, but argues 

(1) the contention was not forfeited because the error 

violated his federal due process rights; and (2) his counsel 

was ineffective for failing to object or request modification. 

We conclude that defense counsel’s failure to object forfeited 

the contention, and that this failure did not render counsel’s 

assistance ineffective.

People v. McGehee (2016) 246 Cal.App.4th 1190 

(McGehee), on which both parties rely, is directly on point. 

There, at the guilt phase of the defendant’s trial for murder 

of his mother, the jury heard evidence that the defendant, in 

order to prevent discovery of his mother’s body, attempted to 

keep his sister away from the body and made false 

statements to her, including statements implying their 

mother was still alive. (Id. at 1197-1199, 1204.) It was 

undisputed that the defendant was “mentally disturbed” at 

the time of the offense, though the nature and severity of the 

disturbance was disputed. (Id. at 1194.) The jury was 

instructed with unmodified versions of CALCRIM Nos. 362 

and 3428; defense counsel did not object. (McGehee, supra,

at 1203.) On appeal from his conviction, the defendant 

contended the court erred, in a manner violating his federal 

due process rights, by failing to modify CALCRIM No. 3428 

to permit the jury to consider evidence of his mental illness 

in deciding whether his false pretrial statements to his sister 

were knowingly false. (Id. at 1204.) 
49

The Court of Appeal agreed that the unmodified 

instruction erroneously deprived the jury of permission to 

consider the mental-illness evidence in assessing 

consciousness of guilt, reasoning that the evidence could 

show the false statements were unknowingly false (and 

therefore not probative of consciousness of guilt) because 

“mental illness or impairment has obvious relevance to the 

question of ability to perceive or recall events.” (McGehee, 

supra, 246 Cal.App.4th at 1204-1205.) However, the court 

rejected the defendant’s contention that the error violated 

his due process rights, reasoning that the permissive 

inference of consciousness of guilt was reasonable in light of 

appellant’s attempt to keep his sister away from the body; he 

would have had no reason to make that attempt had he 

believed the truth of his implications that their mother was 

alive. (Id. at 1205-1206.) For the same reason, the court 

concluded the error did not affect the defendant’s substantial 

rights, and that his trial counsel’s failure to object therefore 

forfeited his challenge to the error on appeal. (Id. at 

1206-1207.) 

Here, as in McGehee, defense counsel’s failure to object 

forfeited appellant’s contention on appeal. The inference 

that appellant’s false story to the detectives reflected 

consciousness of guilt was reasonable. The jury heard 

evidence that appellant experienced hallucinations of voices 

and delusions that other people intended to harm him, but 

heard no evidence that appellant’s mental illness caused him 

to have false memories of his own conduct. Thus, the jury 
50

reasonably could have inferred that appellant’s false claim to 

have taken a 45-minute walk around his neighborhood, on a 

specified route, reflected consciousness of guilt rather than a 

hallucination or delusion. This inference was additionally 

supported by appellant’s statements to the detectives that 

the reason for Fisher’s fatal strangling “implicate[d]” him 

and “ma[de] him guilty of a crime eventually.” The jury 

reasonably could have inferred that had appellant actually 

believed he had been walking around the neighborhood 

when Fisher was killed, he would not have claimed that the 

reason for the strangling implicated him. Because the jury 

reasonably could infer consciousness of guilt from appellant’s

false statements to the detectives, the asserted instructional 

error did not violate his due process or other substantial 

rights, and his counsel’s failure to object below forfeited his 

contention on appeal. (See McGehee, supra, 246 Cal.App.4th 

at 1205-1207.) 

Regardless of whether defense counsel’s performance 

was deficient for failing to object, it was not prejudicial. (See 

In re Crew (2011) 52 Cal.4th 126, 150 [“If a claim of 

ineffective assistance of counsel can be determined on the 

ground of lack of prejudice, a court need not decide whether 

counsel’s performance was deficient”].) As noted, the jury 

heard no evidence that appellant’s mental illness caused 

symptoms comparable to false memories of taking a 

45-minute walk around the neighborhood on a specific route. 

Thus, even had the instructions invited the jury to consider 

the mental-illness evidence with respect to appellant’s false 
51

statements, it is not reasonably probable the jury would 

have found he did not know his statements were false. 

Moreover, CALCRIM No. 362 merely permitted the jury to 

infer consciousness of guilt, without requiring it to do so, and 

made clear that the “importance” of any knowingly false 

statement was for the jury to decide. Even disregarding the

consciousness-of-guilt evidence, the evidence was more than 

sufficient to support the jury’s finding of a premeditated and 

deliberate murder. In short, we are confident the jury would 

have returned the same verdict even had defense counsel 

secured the relevant modification to CALCRIM No. 3428. 

(See In re Crew, supra, at 150 [counsel’s deficient 

performance is prejudicial if probability of more favorable 

result absent counsel’s failings is reasonable, i.e., sufficient 

to undermine confidence in the outcome].) 

D. Asserted Prosecutorial Misconduct

Appellant contends many of the prosecutors’ remarks 

during closing argument constituted misconduct. He 

acknowledges that his trial counsel failed to object to any of 

the challenged misconduct. He argues that his misconduct 

claim was not forfeited because the misconduct affected his 

substantial rights, and (in the alternative) that his trial 

counsel were ineffective for failing to object. 

1. Principles

A prosecutor’s “use of deceptive or reprehensible 

methods to persuade the court or jury” violates state law, 
52

and further violates the federal constitution if it “‘“so 

infect[s] the trial with unfairness as to make the resulting 

conviction a denial of due process.”’” (People v. Flores (2020) 

9 Cal.5th 371, 403.) “It is prosecutorial misconduct to 

misstate the law. [Citation.] It is also misconduct to 

misstate the evidence or go beyond the record. [Citation.] 

However, the prosecution ‘enjoys wide latitude in 

commenting on the evidence, including the reasonable 

inferences and deductions that can be drawn therefrom. 

[Citations.] ‘A defendant asserting prosecutorial misconduct 

must . . . establish a reasonable likelihood the jury construed 

the remarks in an objectionable fashion.’ [Citations.]” 

(Fayed, supra, 9 Cal.5th at 204.) In assessing such a

likelihood, “[w]e presume not only that jurors follow 

instructions in general [citation], but also ‘that jurors treat 

the court’s instructions as a statement of the law by a judge, 

and the prosecutor’s comments as words spoken by an 

advocate in an attempt to persuade’ [citations].” (People v. 

Potts (2019) 6 Cal.5th 1012, 1037.)

“To preserve a claim of [prosecutorial] misconduct for 

appeal, a defendant must make a timely objection and ask 

the court to admonish the jury, unless an objection would 

have been futile and a request for admonition ineffective.” 

(People v. Flores, supra, 9 Cal.5th at 403.) “When the record 

on direct appeal sheds no light on why counsel failed to act 

in the manner challenged [on a claim of ineffective 

assistance], [the] defendant must show that there was ‘“‘no 

conceivable tactical purpose’” for counsel’s act or omission. 
53

[Citations.]’” (People v. Centeno (2014) 60 Cal.4th 659, 675.) 

“‘[T]he decision facing counsel in the midst of trial over 

whether to object to comments made by the prosecutor in 

closing argument is a highly tactical one’ [citation], and ‘a 

mere failure to object to . . . argument seldom establishes 

counsel’s incompetence’ [citation].” (Ibid.) 

2. Forfeiture

Defense counsel’s failure to object to any of the 

prosecutors’ asserted misconduct forfeited appellant’s 

misconduct claim on appeal. (See People v. Flores, supra, 

9 Cal.5th at 403.) Appellant expressly disclaims any 

argument that objections would have been futile. Though he

argues the claim was nevertheless preserved for appeal 

because it affected his substantial rights, he cites only one 

case in support of this argument, and that case did not 

address prosecutorial misconduct. (People v. Espiritu (2011) 

199 Cal.App.4th 718, 724-725 [defendant did not forfeit 

objection to trial court’s failure to record jury’s not-true 

finding on deadly-weapon allegation].)

We conclude appellant’s misconduct claim was forfeited. 

We nevertheless address the merits of the claim to resolve 

his alternative contention that his counsel were ineffective 

for failing to object.

3. Error

We conclude that many of the prosecutors’ challenged 

remarks were permissible. Several fell within a prosecutor’s 
54

“wide-ranging right” to urge the jury to draw inferences from 

the evidence. (People v. Tully (2012) 54 Cal.4th 952, 1043.) 

These include arguments that (1) Fisher fell to the ground by 

the end of appellant’s series of blows; (2) appellant used all 

his strength and weight to crush Fisher’s neck; and (3) 

appellant watched the life drain from Fisher. We find 

nothing unreasonable about these inferences on the record 

before the jury. In another challenged remark, the 

prosecutor urged the jury to infer, from the number of 

bruises and abrasions on various parts of Fisher’s body, that 

appellant punched Fisher “in the face” 24 times or more. 

The record did not reasonably support that specific 

inference; the dozens of injuries Fisher suffered covered 

more than her face, and it was speculative whether each 

injury was inflicted by a separate blow. But “[o]pposing 

counsel may not complain on appeal if the reasoning is 

faulty or the deductions are illogical because these are 

matters for the jury to determine.” (Ibid.) The jury was 

equipped to reject the proffered inference, especially given 

that defense counsel argued, at some length, that the 

inference was not supported by the evidence.12

12 The prosecutors also encouraged the jury to draw (while 

deeming immaterial) an inference that appellant made a sexual 

advance on Fisher. In doing so, they referenced the evidence of 

the Arias incident. Thus, we reject appellant’s contention that 

the prosecutors merely asserted their personal beliefs regarding a 

sexual advance. In any event, such assertions would have been 

(Fn. is continued on the next page.)
55

It was also permissible for the prosecutors to make 

their challenged remarks to the effect that the experts were 

uncertain whether appellant’s mental illness was 

substance-induced. Though Dr. Grand’s stipulated 

testimony was somewhat ambiguous, and she was not 

present at trial to clarify, she appeared to express certainty 

that appellant had a psychotic disorder of some type

(“Unspecified Schizophrenia Spectrum and Other Psychotic 

Disorder”), but uncertainty regarding whether his disorder 

was “Substance-Induced Psychosis” or another type. Both 

prosecutors conceded that appellant had a mental illness, 

and permissibly argued that Dr. Grand was uncertain 

whether his illness was substance-induced. Similarly, the 

prosecution accurately observed that Dr. Rothberg testified 

that appellant’s drug use prevented a more certain diagnosis. 

Dr. Rothberg identified several diagnoses that were

“potentially” correct, and testified, with reference to 

Dr. Knapke’s 2013 report, that a more certain diagnosis was 

difficult because “if there is ongoing use of drugs, then you 

really don’t know what’s going to be left when the drugs 

stop.”

As appellant observes, Dr. Rothberg did not mirror 

Dr. Knapke’s language recommending that appellant be 

re-evaluated after six months of sobriety. Appellant argues 

it was therefore inaccurate and misleading for the prosecutor 

harmless for the same reasons we found the admission of the 

Arias incident harmless.
56

to argue, “Dr. Rothberg and Dr. Knapke both say . . . that 

there are symptoms that correspond both with these 

schizo-type disorders as well as drug use. We can’t tell 

which one they are or are not. We need him sober for six 

months to be able to tell what remains.” But although the

implication that Dr. Rothberg had mirrored Dr. Knapke’s 

language was inaccurate, it was not misleading in light of 

Dr. Rothberg’s reference to Dr. Knapke’s report in support of 

a similar opinion. Relatedly, the prosecutor’s references to 

these opinions clarified the prosecutor’s arguments that 

Dr. Knapke had testified to the effect that “‘there’s no way 

that you can diagnose [appellant] with schizoaffective 

disorder because he’s got too much drug abuse in his 

history,’” and “‘It seems like mostly a drug problem. It’s not 

schizoaffective disorder.’” Dr. Knapke did testify that he had 

concluded that appellant was neither psychotic nor 

delusional at the time of the 2013 examination, and that 

appellant’s “primary” problem seemed to be drug use. The 

prosecutor communicated the tentative nature of these 

opinions to the jury by referencing Dr. Knapke’s 

recommendation for a re-evaluation after six months of 

sobriety. Thus, appellant fails to show a reasonable 

likelihood that the jury drew, from these challenged remarks,

objectionable conclusions regarding the record.

With respect to other challenged remarks, appellant 

fails to show a reasonable likelihood that the jury drew 

objectionable conclusions regarding the law. First, we are 

confident the jury did not interpret the following remarks as 
57

a representation that appellant’s mental illness was 

irrelevant: “There can be a temptation in a case like this to 

say, ‘Well, he’s crazy.’ Well, of course he’s crazy. Everyone 

who murders a stranger is crazy.”

13 Almost immediately

after making these remarks, the prosecutor discussed two 

ways in which appellant’s mental illness was potentially 

relevant. Second, we are confident the jury did not interpret 

any of the prosecutors’ remarks as a representation that 

premeditation and deliberation may be inferred from the 

passage of time alone. The prosecutors’ arguments 

emphasized not only the time in which appellant could have 

premeditated and deliberated, but also the nature of his 

actions throughout that time, viz., battering Fisher to 

overcome her resistance and steadily crushing her neck. 

Thus, appellant’s reliance on People v. Boatman (2013) 221 

Cal.App.4th 1253 is misplaced. There, the defendant’s sole 

action directed toward the killing -- a single gunshot to the 

face, using a gun taken from the victim just before -- was 

nearly instantaneous. (See id. at 1267-1271.)

13 Appellant challenges the prosecutor’s use of the word 

“crazy” in reference to people with delusional illnesses, arguing 

such use is demeaning and “can only be intended to incite the 

stigma often attached to mental illness.” We express no approval 

of the prosecutor’s use of this term, but we find it neither 

inflammatory nor prejudicial in the context of this case. We 

further note that the term’s use does not compel an inference of 

nefarious intent. Appellant’s own counsel used the term to refer 

to appellant and his conduct. 
58

Finally, appellant fails to show a reasonable likelihood 

that the jury interpreted any remark as “disparaging 

defense counsel by implying [they] had fabricated a delusion 

defense.” Appellant points out that the prosecutor remarked, 

“We don’t even hear anything about this idea that maybe it 

was a delusion until he’s talking to doctors like a year and a 

half later. And all of a sudden, he starts coming up with this 

-- they have this idea in their head that there’s going to be a 

delusion defense.” But the general thrust of the prosecutor’s 

argument was that appellant had fabricated claims to the 

experts in accord with his asserted history of malingering. 

Even assuming defense counsel were included in the 

prosecutor’ reference to “they,” the most that could be 

inferred was the suggestion that defense counsel had shared 

appellant’s idea to rely on his claims of delusion, not that 

they had induced or joined in his fabrication of the

underlying claims. (See People v. Young (2005) 34 Cal.4th 

1149, 1191-1192 [prosecutor did not imply defense counsel 

was responsible for witness’s allegedly false testimony, 

where general thrust of prosecutor’s argument was that 

physical evidence proved witness was not credible, not that 

defense counsel knew witness had lied]; Thomas, supra,

2 Cal.4th at 529-530 & fn. 14 [same, where general thrust of 

prosecutor’s argument was that witness’s boyfriend induced 

her allegedly false testimony, despite prosecutor’s arguing, 

“‘Now, I suppose Mr. Chaffee [defense counsel] would have 

you think, just another little mistake. How many mistakes 
59

does the defense get to make before you realize perhaps 

they’re contriving something?’”].) 

The numerous remarks we have already addressed are 

only some of the many remarks challenged by appellant. We 

need not decide whether the remaining remarks were 

misconduct, for as explained below, we find they were not 

prejudicial.

4. Prejudice

The prosecutors’ remaining challenged remarks were 

not prejudicial. They did not infect the trial with unfairness 

in a manner violating due process, and there is no 

reasonable probability the jury relied on them, rather than 

the ample prosecution evidence, to find that Fisher’s killing 

was a premeditated murder.

This is particularly true with respect to the 

prosecutors’ challenged remarks related to evidence of 

delusions.14 As explained above, appellant’s “delusional 

self-defense” claim was both improper at the guilt phase and 

14 These were remarks that: (1) appellant’s past delusions, as 

evidenced by his father’s testimony, all concerned being watched, 

rather than people coming to kill him; (2) Dr. Rothberg’s 

examination of appellant in January 2019 was the first time 

appellant had reported any delusion or hallucination at the time 

of the offense; and (3) appellant’s failure to report any delusion in 

his interviews with the detectives was particularly significant 

because “all the experts” had indicated that “‘crazy people don’t 

know that they are crazy,’” and instead believe their delusions 

are real. 
60

lacking in evidentiary support, and evidence of a delusional 

motive for killing Fisher could support the prosecution case 

for premeditation and deliberation. Thus, to the extent the 

prosecutor’s challenged remarks might have discredited the 

evidence of delusions, they were as likely to help appellant 

as to prejudice him.

Any potential prejudice from the remaining challenged 

remarks was mitigated by the jury instructions and defense 

counsel’s arguments. (See People v. Flores, supra, 9 Cal.5th 

371 at 405 [“In light of the court’s cautionary instructions 

and defendant’s challenge of the very evidence the 

prosecutor misstated, we discern no prejudice or denial of 

defendant’s right to a fair trial”].) The jury was instructed 

that the attorneys’ arguments were not evidence and should 

be disregarded to the extent they were inconsistent with the 

jury instructions. Defense counsel reminded the jury that 

the prosecutors’ arguments were not evidence, and that no 

evidence directly supported the challenged prosecution 

argument that the strangling had lasted two minutes (30 

seconds beyond the time necessary to render a victim 

unconscious and the brain “on its way towards death,”

according to the medical examiner). Further, defense 

counsel argued that Dr. Rothberg’s testimony concerning 

appellant’s impaired judgment and impulse control weighed 

against a finding of premeditation and deliberation,

implicitly contradicting the prosecution’s asserted 

implication that delusions were the only symptoms of mental 
61

illness relevant to that issue.15 Moreover, defense counsel 

reminded the jury of the instruction that it could consider 

evidence of voluntary intoxication in deciding whether 

appellant acted with premeditation and deliberation, 

mitigating any potential prejudice from the prosecution’s 

asserted implication that drug-induced symptoms were 

irrelevant. Finally, defense counsel reminded the jury that 

Dr. Rothberg had never concluded appellant was 

malingering, and argued that Dr. Knapke was not credible 

because he had not examined appellant since 2013. These 

arguments mitigated any potential prejudice from the 

prosecutor’s assertion that both Dr. Rothberg (who testified 

that appellant’s medical records made “many” references to 

concerns of malingering) and Dr. Knapke (who did not 

address malingering in his testimony) had testified that all

the mental health records they reviewed reflected concerns 

about malingering. 

As we have explained above, the jury was not faced 

with a close case. For these reasons, we find no prejudice. 

Having found many of the challenged remarks permissible, 

and the remainder harmless, we conclude defense counsel 

15 The prosecution also assertedly implied that evidence of 

mental illness was irrelevant to appellant’s imperfect self-defense 

claim, which posited that appellant acted without malice and 

therefore committed voluntary manslaughter rather than murder. 

But the jury was instructed that it could consider mental-illness 

evidence in deciding whether appellant acted with the intent or 

mental state required for murder.
62

were not ineffective for failing to object. (Thomas, supra, 

2 Cal.4th at 531.) 

E. Motive for Appellant’s Prior Report of an 

Intruder

Appellant does not challenge the admission of evidence 

that some weeks prior to Fisher’s killing, he reported that an 

intruder ransacked his house after forcing him into a closet 

at gunpoint. Appellant does challenge, as speculative, his 

father’s testimony that his motive for this prior report of an 

intruder was his desire to avoid blame for creating a mess in 

his house. He does not dispute that his trial counsel’s failure 

to object to this testimony forfeited his evidentiary 

contention on appeal. (See People v. Redd (2010) 48 Cal.4th 

691, 729 [applying general rule that “‘trial counsel’s failure 

to object to claimed evidentiary error on the same ground 

asserted on appeal results in a forfeiture of the issue on 

appeal’”].) Instead, he contends his trial counsel were

ineffective for failing to object. 

We disagree. Regardless of whether defense counsel’s 

failure to object constituted deficient performance, it was not 

prejudicial. The jury was equipped to understand the 

common-sense proposition that appellant’s father could not 

read his son’s mind. Further, neither appellant’s prior 

report of an intruder, nor his motive for making it, was 

material. Even disregarding the prior report, it was 

reasonable for the jury to infer that his similar false report 

to the detectives reflected consciousness of guilt (as 
63

explained above, in our discussion of appellant’s contention 

concerning CALCRIM No. 3428). And even the latter false 

report was inessential to the prosecution case.16

F. Sanity

In challenging the trial court’s finding that appellant 

had been capable of understanding the wrongfulness of 

Fisher’s killing at the time he killed her, appellant asserts 

that the court erred in various ways in describing and 

weighing the evidence. Both parties properly cite People v. 

Belcher (1969) 269 Cal.App.2d 215 (Belcher) for the 

proposition that we must affirm the sanity verdict if it was 

supported by substantial evidence.17 (Id. at 220.) We 

therefore construe appellant’s evidentiary arguments as a 

contention that no substantial evidence supported the sanity 

verdict.

16 Having rejected many of appellant’s contentions of error, 

and having found the remaining asserted errors harmless, we 

reject appellant’s contention that he was prejudiced by the 

cumulative effect of the asserted errors. 

17 Elsewhere in his appellate brief, appellant asserts --

without citation to authority -- that the sanity verdict must be 

reversed if there is a reasonable probability that the trial court 

would have reached a different conclusion absent its asserted 

errors in describing and weighing the evidence. This 

unsupported assertion is at odds with appellant’s own citation to 

Belcher, where the appellate court recognized its obligation to 

affirm a trial judge’s sanity verdict unless it found “‘“no 

hypothesis whatsoever”’” under which the evidence supported the 

verdict. (Belcher, supra, 269 Cal.App.2d at 220.)
64

1. Principles

“‘[I]nsanity is established if the defendant was unable 

either to understand the nature and quality of the criminal 

act, or to distinguish right from wrong when the act was 

committed.’” (People v. Powell (2018) 5 Cal.5th 921, 955 

(Powell).) Here, the parties’ dispute concerns only the 

second, wrongfulness issue. This issue concerns the 

defendant’s understanding of “generally accepted moral 

standards” rather than “those standards peculiar to the 

accused.” (People v. Coddington (2000) 23 Cal.4th 529, 608, 

overruled on another ground by Price v. Superior Court

(2001) 25 Cal.4th 1046; accord, People v. Rittger (1960) 

54 Cal.2d 720, 734 [“The fact that a defendant claims and 

believes that his acts are justifiable according to his own 

distorted standards does not compel a finding of legal 

insanity”].) Though the issue concerns the defendant’s 

understanding of morality rather than law, the defendant’s 

knowledge that his act is illegal “will in most cases permit 

the inference of knowledge that, according to the accepted 

standards of mankind, it is also condemned as an offense 

against good morals.” (People v. Leeds (2015) 240 

Cal.App.4th 822, 831 (Leeds).) 

“‘If [a] mental illness is manifested in delusions which 

render the individual incapable either of knowing the nature 

and character of his act, or of understanding that it is wrong, 

he [or she] is legally insane . . . .’” (People v. Blakely (2014) 

230 Cal.App.4th 771, 780 (Blakely).) Thus, “[a] person 

suffering from a delusion that causes him to fear that 
65

another is attempting to take his life is legally insane if the 

facts perceived as the product of his delusion would legally 

justify his acting in self defense.” (Leeds, supra, 240 

Cal.App.4th at 829.) But if his delusions have no such effect, 

the defendant may be sane. (See id. at 833; Blakely, supra, 

at 781.) 

“In a sanity trial, the burden is on the defendant to 

prove insanity by a preponderance of the evidence.” (Powell, 

supra, 5 Cal.5th at 955.) We must review the record in the 

light most favorable to the sanity verdict and affirm if the 

verdict is supported by “evidence that is reasonable, credible, 

and of solid value, from which a reasonable trier of fact could 

find the defendant sane by a preponderance of the evidence.” 

(Id. at 957.) “‘[E]xpert testimony, even if uncontradicted, is 

not binding on the trier of fact, and may be rejected . . . .’” 

(People v. McCarrick (2016) 6 Cal.App.5th 227, 247 

(McCarrick), italics omitted.)

2. Analysis

Substantial evidence supported the trial court’s finding 

that appellant had failed to prove, by a preponderance of the 

evidence, that he had been incapable of understanding the 

wrongfulness of killing Fisher at the time he killed her. 

None of the expert evidence suggested that appellant’s 

mental illness interfered with his ability to understand that 

killing people is typically wrong. Suggesting the opposite, he 

reported to Dr. Pitt (the sole expert to opine appellant had 

been insane at the time of offense) that he had resisted 
66

voices telling him to violate his “morals” by killing a Black 

person, and Dr. Pitt testified that appellant generally 

“understood that to kill someone was wrong . . . .” Appellant 

did not testify, and he never expressly claimed in his 

psychiatric interviews that he had believed Fisher’s killing 

was morally justified. (See Blakely, supra, 230 Cal.App.4th

at 781 [defendant failed to establish insanity, despite his 

testimony he acted on delusion victim was a demon, where 

he failed to state “he believed it was morally acceptable to 

attack [victim] and take his money”].) On the contrary, 

when appellant finally discussed the killing with Dr. Pitt, 

his statements indicated he had been “conflicted” about 

hurting Fisher and “‘felt remorse’” immediately after she 

died. These statements supported a reasonable inference of 

consciousness of moral guilt, as did the following: (1) 

appellant’s false story to the detectives about an intruder; (2) 

appellant’s admission to Dr. Rothberg that he had lied to the

detectives to avoid criminal responsibility; (3) appellant’s 

dragging Fisher’s body from the kitchen to the garage in an 

apparent attempt to hide it; and (4) appellant’s washing 

clothing in an apparent attempt to destroy DNA evidence. 

(See Leeds, supra, 240 Cal.App.4th at 833 [where defendant 

shot victims dead, acting on delusional belief that victims 

were conspiring to kill him, defendant’s “discarding his gun 

and outer clothing afterwards, and attempting to leave the 

crime scene rather than seeking out the police, . . . indicated 
67

that he knew his actions were wrongful”].)18 The foregoing 

was substantial evidence in support of the sanity verdict, 

independent of the further support provided by experts other 

than Dr. Pitt.19

The implication of appellant’s arguments is that the 

court was compelled to accept Dr. Pitt’s opinion that 

appellant, acting on a delusion that Fisher would provide 

information to men who would eventually kill him and/or his 

parents, had believed Fisher’s killing was morally justified. 

Not so. First, Dr. Pitt’s opinion was far from conclusive 

evidence that appellant had actually experienced the 

reported delusion, which he had not reported in his 

interviews with the detectives, his interviews with the 

experts other than Dr. Pitt, or his first five interviews with 

Dr. Pitt. Second, even assuming appellant did experience 

the reported delusion, Dr. Pitt failed to persuasively explain 

her opinion that the delusion caused appellant to believe 

18 Appellant argues this evidence supported a reasonable 

inference only of his understanding of the legal wrongfulness of 

Fisher’s killing, not his understanding of its moral wrongfulness. 

But he acknowledges that the former permits an inference of the 

latter in “most” cases. (Leeds, supra, 240 Cal.App.4th at 831.) 

He identifies no persuasive reason to deem this homicide case an 

exception to the general rule.

19 Dr. Grand opined that the case for insanity was 

“extremely” weak, and Dr. Rothberg opined that it was uncertain 

whether Fisher’s killing resulted from appellant’s psychotic 

disorder rather than from his “very substantial antisocial 

personality characteristics.”
68

Fisher’s killing was morally justified. As noted, appellant 

indicated to Dr. Pitt that he had been “conflicted” about 

hurting Fisher and “‘felt remorse’” immediately after she 

died. He also told Dr. Pitt that his explanations for the 

“horrific” killing were not “excuses.” Moreover, he indicated 

to both Dr. Pitt and an investigator that he had killed Fisher 

to prevent her from “snitch[ing]” on him in connection with a 

theft he had committed. Though he reportedly had believed 

Fisher’s snitching might result in other people eventually

killing him and/or his parents, such a belief would not have 

morally justified Fisher’s murder under generally accepted 

moral standards. (See People v. Rittger, supra, 54 Cal.2d at 

734 [expert’s opinion did not undermine sanity finding, 

where expert’s opinion was to effect that defendant’s 

paranoid delusional thinking led him to believe victim 

“might attack him at some future time,” and that defendant 

therefore felt justified in killing victim “according to 

defendant’s personal, prison-influenced standards”]; Leeds, 

supra, 240 Cal.App.4th at 833 [defendant was not prejudiced 

at sanity phase, with respect to three of his murder victims, 

by instructional error prohibiting jury from evaluating 

defendant’s self-defense claim in light of his delusions that 

each victim “conspired with the others to kill him,” where 

“there was no evidence that he perceived he was in 

imminent danger from [those three victims], and 

considerable evidence that he knew he was not”].)

In sum, even had Dr. Pitt been the sole source of expert 

opinion, the court reasonably could have rejected Dr. Pitt’s 
69

opinion and found that appellant had been capable of 

understanding it was morally wrong to kill Fisher at the 

time he killed her. (See McCarrick, supra, 6 Cal.App.5th at 

235, 246-248 [jury reasonably could have found defendant 

understood moral wrongfulness of murders at time of 

offenses, despite unanimous contrary opinions of three 

experts].) We conclude the sanity verdict was supported by 

substantial evidence.20

G.Serious-Felony Enhancement

Appellant contends his trial counsel were ineffective 

for failing to ask the trial court to strike his five-year 

enhancement for a prior serious felony, viz., his 2013 

conviction for criminal threats. The People do not argue 

there was a conceivable tactical purpose for defense counsel’s 

failure to make the request. (See People v. Centeno, supra, 

20 Appellant also contends the trial court misapplied the law 

at the sanity phase by relying on its personal belief that finding 

appellant sane was necessary to deliver justice to Fisher’s family. 

The record does not support this contention. The court made only 

a single stray remark concerning justice for Fisher’s family, after 

a lengthy discussion of the evidence within the governing legal 

framework. Moreover, this remark followed its comments that it 

wished it could reach a different result in light of the 

consequences of the verdict, the court’s familial relationships 

with mentally ill individuals, and its resulting empathy with 

appellant’s family. In that context, the court’s remark that its 

decision was driven by justice for Fisher’s family “and just the 

right result” appeared to mean that the court had resisted 

potential bias in appellant’s favor.
70

60 Cal.4th at 675.) Instead, they argue there is no 

reasonable probability the court would have granted the 

request, relying solely on the court’s denial of defense 

counsel’s oral Romero motion. 

We disagree with the People. The court’s denial of the

Romero motion reflected only a finding that no extraordinary 

circumstances warranted departure from the three strikes 

law. (See People v. Carmony (2004) 33 Cal.4th 367, 378; 

People v. Johnson (2019) 32 Cal.App.5th 26, 69 [rejecting 

argument that trial court’s denial of Romero motion showed 

it would not have stricken serious-felony enhancement].) In 

denying the Romero motion and sentencing appellant, the 

court made no comments indicating it approved of the

55-year determinate term of appellant’s sentence. Further, 

in finding appellant sane, the court indicated the

consequences of its decision had weighed heavily on it, and 

expressed a wish that a different result were possible. We 

cannot say there is no reasonable probability that had 

defense counsel asked the court to strike the enhancement, 

the court would have exercised its discretion to reduce the 

determinate term of appellant’s sentence from 55 to 50 years. 

We therefore remand for a hearing at which the court will 

decide whether to exercise that discretion.
71

DISPOSITION

The judgment is affirmed. The matter is remanded 

with directions to the trial court to decide, at a hearing at 

which appellant has the right to be present with counsel, 

whether it will exercise its discretion to strike the 

enhancement imposed under Penal Code section 667, 

subdivision (a). (See People v. Rocha (2019) 32 Cal.App.5th 

352, 359-360.) If the court elects to strike the enhancement, 

it shall resentence appellant, issue a new abstract of 

judgment, and forward the new abstract of judgment to the 

California Department of Corrections and Rehabilitation. If 

the court elects not to strike the enhancement, appellant’s 

original sentence shall remain in effect. (See id. at 361; 

People v. Buckhalter (2001) 26 Cal.4th 20, 35.)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

 MANELLA, P. J.

We concur:

WILLHITE, J.

CURREY, J.