Filed 9/8/14 P. v. Lopez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

 Plaintiff and Respondent,

 v.

JOEY JESSE LOPEZ,

 Defendant and Appellant.

F065052

(Super. Ct. No. F09906875)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Arlan L. 

Harrell, Judge.

Heather MacKay, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and 

Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-
2.

Joey Jesse Lopez appeals from the judgment entered after a jury found him guilty 

of first degree murder (Pen. Code, § 187, subd. (a))1 and found true the allegation that he 

personally used a firearm in the commission of the offense (§ 12022.53, subd. (d)). 

Lopez admitted that he had served a prior prison term (§ 667.5, subd. (b)). The jury 

rejected Lopez’s defense that he was legally insane at the time of the killing. The trial 

court sentenced Lopez to a total term of 51 years in state prison. 

On appeal, Lopez contends the trial court erroneously admitted evidence of 

Lopez’s gang membership and photographs of the victim’s corpse. He also contends 

that, in the sanity phase of the trial, the prosecutor committed various instances of 

misconduct and that erroneous instructions were given. Finally, he claims cumulative 

error. We conclude no prejudicial error occurred and affirm the judgment. 

STATEMENT OF THE FACTS

Guilt Phase

On the evening of December 6, 2009, Lopez and his friend Christopher Gonzalez2

were together drinking alcohol and using methamphetamine. The next morning, the two 

drove Gonzalez’s uncle’s truck to a friend’s house to continue partying, but were unable 

to find the house. With Gonzales driving, Lopez began “acting crazy” and started 

shooting a nine-millimeter handgun out the window into the air. Lopez did not respond 

to anything Gonzalez said to him. Gonzalez said he had seen the gun before in his 

uncle’s truck and assumed Lopez found it there, although he did not see him get the gun. 

Gonzalez drove to a nearby gas station to use a payphone. Once there, Gonzalez 

walked toward the payphone while Lopez remained in the truck. When Gonzalez heard 

gunshots, he ran back to the truck and saw Lopez, gun in hand, running back to the truck 

 

1 All further statutory references are to the Penal Code unless otherwise stated. 

2

In a deal made with the prosecution, Gonzalez pled guilty to being an accessory to 

murder in this case. 
3.

from a beer truck parked at the gas station. Gonzalez and Lopez jumped into the truck 

and drove away.3 Although multiple police cars followed them, Lopez repeatedly told 

Gonzalez to keep driving.4 After losing the police vehicles chasing them, the truck 

stopped due to tire damage and Gonzalez and Lopez got out and ran. 

The body of Richard Hernandez, dressed in blue clothing, was located face down 

near a beer truck in the gas station parking lot. Three spent nine-millimeter shell casings

and bullet fragments from Lopez’s gun were found near the body. Hernandez had been 

shot three times, including two bullets that went through both lungs and his aorta, which 

caused his death. Officer Todd Frazier did not think Hernandez had any gang ties. 

Four hours after the shooting, Lopez, wearing a hooded sweatshirt, knocked on 

Kathy Weber’s door. He was crying and said he wanted help because the police were 

after him. Weber shut the door and called 911. Lopez’s gun was found the following 

day in Weber’s yard, partially buried, loaded with four live rounds of ammunition. 

Law enforcement officers found Lopez, matching the description given by Weber, 

in an alley near Weber’s residence. He identified himself as a Bulldog gang member. 

Lopez, sobbing and gasping for air, said he was having problems with his family. The 

officers took Lopez to police headquarters. As they passed the murder scene, Lopez cried 

profusely, made grunting noises, and stomped his feet in the patrol car. 

In interviews with law enforcement officers, Lopez admitted that he had gotten 

drunk the night before, but claimed he did not know anything about the murder, nor did 

he know the victim or Gonzalez.5 Lopez told the officers he first tried to fit in to be a 

Bulldog when he was about 12 years old. He had multiple tattoos associated with the 

Bulldog gang, including a dog paw on his upper right cheek, a dog paw on his stomach, 

 

3 Video surveillance from the store capturing the incident was played for the jury. 

4 Video from a police vehicle during the chase was played for the jury. 

5 The interviews were recorded, transcribed, and played for the jury. 
4.

“Fresno” on his chest, and a dog collar with a dog tag around his neck. According to 

Lopez, ever since he started smoking crack when he was 13 or 14 years old, he had 

“twisted thoughts” “to go kill scraps,” a derogatory term used by Bulldog gang members 

to describe rival gang members. Lopez said the first person to give him crack was a 

“scrap,” and voices in his head told him to kill Hernandez and “handle [his] business.” 

But Lopez continued to maintain that he was not there when Hernandez was killed. 

Lopez presented no defense. 

Sanity Phase

1. Defense

On December 4, 2009, just days before the shooting, Lopez’s mother called the 

police because Lopez was “going crazy” and might kill himself. Lopez’s mother told 

dispatch that she thought Lopez was high on methamphetamine. Paramedics were called 

to transport Lopez to a hospital. Because he was so upset and angry, he had to be put on 

a gurney in four-point restraints for safety reasons. Lopez admitted girlfriend and family 

issues, but denied having hallucinations and delusions. Lopez was diagnosed with 

alcohol intoxication. 

On December 6, 2009, the day before the incident, Lopez was seen walking 

through the neighborhood barking, screaming, kicking, cussing, and flailing his arms. 

When police arrived, Lopez ignored them until they called him by name. Lopez was 

again transported to the hospital in restraints. His vital signs were consistent with 

“possible sympathomimetic stimulant use,” although he denied any alcohol or drug use. 

A paramedic thought Lopez was hearing voices. Lopez was released six hours before the 

shooting. 

Lopez’s girlfriend, Nicole Reyes, testified that Lopez needed “a lot of psychiatric 

help.” Lopez often got upset and angry because he heard voices in his head, maybe four 

times a week. He also got upset and angry that Reyes might leave him, which she did for 

a few weeks in November and December of 2009. 
5.

Lopez’s family members explained that Lopez was seriously injured in a car 

accident as a small child. His behavior began to change when he tried to become a gang 

member while in middle school. Lopez was struck in the head with pieces of asphalt 

when he was jumped by a gang, but he did not receive any medical attention for the 

injuries. Lopez began exhibiting bizarre behavior when he was 17 or 18; he fought with 

his brothers for no apparent reason; he called girls on the telephone and told them the 

police were after him; he claimed to hear voices in his head; and he always thought the 

mailman was a policeman coming to get him. 

Both Lopez’s girlfriend and brother testified that Lopez smoked marijuana but 

denied he had done other drugs, although a former girlfriend said he had used 

methamphetamine. He mentioned suicide to his mother and father, but not to the others. 

Dr. Harold Seymour, a clinical psychologist, was retained by the defense to 

conduct a sanity evaluation of Lopez. Dr. Seymour examined Lopez for two hours on 

November 29, 2011, almost two years after the shooting, and reviewed his psychiatric 

history and previous evaluations. Because there was evidence of prior psychotic episodes 

dating back almost 11 years, Dr. Seymour did not assess Lopez to determine whether he 

was malingering. Based on his review of police reports and interviews, his own 

interview with Lopez, and psychiatric records, Dr. Seymour opined that Lopez 

understood what he was doing at the time of the shooting but lacked the ability to 

distinguish between right and wrong and was, therefore, legally insane. In Dr. Seymour’s 

view, Lopez determined something was wrong when police began to follow them while

fleeing the scene. 

Dr. Seymour diagnosed Lopez with bipolar disorder, type 1, mixed with 

hallucinations as psychotic features; with personality disorder, not otherwise specified, 

with some traits associated with antisocial personality disorder; and as having a history of 

polysubstance dependence, although he could not say if Lopez was under the influence at 

the time of the shooting. In Dr. Seymour’s view, Lopez’s inability to distinguish right 
6.

from wrong was caused by the “psychosis inherent in the bipolar disorder” and not the 

personality disorder. Nor did he think drugs or alcohol were the likely cause of the 

killing. When asked, Dr. Seymour agreed that a person cannot be found insane due to a 

personality disorder. 

According to Dr. Seymour, Lopez had been enrolled in a drug treatment program 

in May of 2003 and had not had access to illegal substances for months when he reported 

experiencing hallucinations. He received antipsychotic medication, which he claimed 

was helping with the voices. But Dr. Seymour acknowledged that Lopez had said that, 

after leaving the drug treatment program, he again began using street drugs and the 

voices became stronger. Dr. Seymour also acknowledged that delusions and auditory 

hallucinations are the easiest type of symptoms to malinger. 

Dr. Laura Geiger, a psychologist, was also retained by the defense to conduct a 

sanity evaluation of Lopez, which she did in July of 2011. Dr. Geiger diagnosed Lopez 

with schizoaffective disorder, depressive type; as having a personality disorder, with 

borderline and narcissistic and antisocial features; and with adult antisocial behavior. Dr. 

Geiger explained that the usual age of onset for a psychotic break begins around the age 

of 19 or 20.

Dr. Geiger opined that Lopez’s actions had been in response to command 

hallucinations. She thought the prosecution’s expert’s description of Lopez’s auditory 

hallucinations as likely not “real” was inaccurate, because it did not take into account 

previous examples of Lopez responding to internal stimuli.6 Dr. Geiger tested Lopez “in 

part” for malingering, but did not do every available test because there did not seem to be 

evidence in the psychological material, interviews, record or tests to support a diagnosis 

 

6 Due to a scheduling conflict, Dr. Geiger testified after the expert for the 

prosecution. 
7.

of malingering. Instead, Dr. Geiger noted that Lopez exhibited “a very strong motivation 

to not want to appear mentally ill.” 

On cross-examination, Dr. Geiger could not rule out the possibility that some of 

Lopez’s behavior in December of 2009, including the shooting, was the result of alcohol 

intoxication. 

2. The People’s Case

Dr. Luis Velosa, a psychiatrist, was appointed by the trial court to conduct a sanity 

evaluation of Lopez. Dr. Velosa interviewed Lopez in August of 2010 after reviewing 

police reports and interviews, interviews with Lopez’s parents, video evidence of the 

shooting, medical records, and other evidence relating to the case. Dr. Velosa did not 

detect any evidence of bizarre, disorganized, or psychotic behavior during his

examination of Lopez. Although Lopez claimed he heard voices, Dr. Velosa believed 

they were not auditory hallucinations but simply internal dialogue, explaining that the 

nature of the voices was not irrational or out of context with reality. Lopez 

acknowledged that the voices he heard were not real but that he had conversations with 

them back and forth in his mind. Lopez told Dr. Velosa that his girlfriend had left him 

and he had been kicked out of his house shortly before the shooting; he did not mention 

hearing voices when he described those events. 

Dr. Velosa repeatedly opined that, at the time of the offense, Lopez knew what he 

was doing, knew that what he was doing was wrong, was able to differentiate right from 

wrong, and was not psychotic. Dr. Velosa did not think Lopez was suffering from any 

type of mental disease or defect at the time of the shooting and that he was sane at the 

time. Instead, he diagnosed Lopez with polysubstance drug dependence because of his 

addiction to methamphetamine and cocaine, but that the problem was in remission 

because he had not used illegal drugs for some time. 

Former probation officer Cathy Doyden interviewed Lopez in 2004 to prepare a 

sentencing report on an unrelated matter. During that interview, Lopez stated he suffered 
8.

from depression, diagnosed in 2003, that stemmed from issues he had with his son’s 

mother. He did not indicate any other psychotic or mental health issues. Lopez was 

particularly proud of the tattoos he had. Lopez admitted drinking alcohol once or twice a 

month since age 13 and smoking two blunts of marijuana a day since age 11. Lopez liked 

to use LSD, acid, and Ecstasy in combination, but he denied any cocaine use. Lopez 

admitted taking methamphetamine once or twice, but did not like it because it made him 

“flip out.” 

DISCUSSION

I. DID THE TRIAL COURT PREJUDICIALLY ERR IN ALLOWING GANG 

EVIDENCE?

Lopez contends that the trial court abused its discretion in admitting prejudicial 

gang evidence. He contends the evidence should have been excluded, or at least strictly 

limited, because it was of low probative value, unnecessarily cumulative and highly 

prejudicial. Specifically, Lopez objects to the detailed photographs and testimony about 

his various gang tattoos, as well as the general testimony about Hispanic gangs. Lopez

further asserts that admission of the evidence resulted in a fundamentally unfair trial. We 

find no prejudicial error. 

Background

Before trial, the prosecutor asked to present 26 photos of Lopez’s gang tattoos. 

The prosecutor wished to introduce the photos in the guilt phase, but was willing to wait 

and introduce the photos during the sanity phase to show that, because of his gang 

affiliation, Lopez’s “moral standards are different than those generally accepted in our 

own community.” The prosecutor also noted the psychological experts considered the 

photos in their evaluations and that Lopez’s Bulldog affiliation provided an explanation 

for why he was barking at people the night before the shooting, negating the idea that he 

had “mental issues.” 
9.

Defense counsel objected to the photos, arguing they were not necessary because 

he intended to admit that Lopez was a Bulldog and that Bulldog members sometimes 

bark, and because the jury could plainly see the tattoos on Lopez’s hands, face and neck. 

Defense counsel thought delaying admission of the photos until the sanity phase “would 

almost be worse ... because it carries perhaps more impact.” Defense counsel asserted 

the photos would add nothing of relevance and that displaying them would serve only to 

prejudice the jury. 

The trial court overruled defense counsel’s objection and issued a tentative ruling, 

finding that the photos appeared probative on issues for the sanity phase. 

During the guilt phase of trial, defense counsel elicited from both Officer Richard 

Badilla, who arrested Lopez, and Detective Frazier that Lopez had admitted he was a 

Bulldog. The prosecutor played the recorded interview in which Lopez told police he 

began trying to join the Bulldogs at age 12. During that interview, Lopez also said his 

“twisted thoughts” “were fuckin’ tellin’ [him] to go kill scraps.” Detective Frazier 

testified that “scraps” is a derogatory term used by Bulldog gang members to describe 

rival southern gang members. 

The prosecution then asked Detective Frazier if Lopez had any tattoos and whether 

photographs were taken of the tattoos. Detective Frazier testified that Exhibits 56 

through 81 were accurate photographs of Lopez’s tattoos. The prosecutor asked that the 

photos be moved into evidence and published. Defense counsel stated, “That is 

agreeable, at this time.”7

 

7 The record is not clear at this point when and if the trial court changed its tentative 

ruling and allowed the photos into evidence in the guilt phase. Later, during the 

discussion on jury instructions, the trial court noted that the tattoo photos had been 

offered in the guilt phase, defense counsel had not objected, and that the trial court 

assumed the issue had been “discussed ... and understood.” Noting no reasoning had 

been placed on the record, the trial court stated it “allowed that information in ... because 
10.

Detective Frazier then commented on the admitted photos as follows: The tattoo 

of a dog paw on Lopez’s upper right cheek, in Exhibit 57, was a common identifier of 

Bulldog gang members. Exhibit 59 showed Lopez’s exposed chest and arms. Exhibit 60, 

showed a dog paw on Lopez’s stomach, along with “BDS,” meaning Bulldogs. Exhibit 

61, showed Lopez’s chest, neck, and arms with tattoos showing Bulldog affiliation, 

including the word “Fresno” on his chest and a dog collar around Lopez’s neck. 

Defense counsel objected, pursuant to Evidence Code section 352, to any 

additional tattoo photographs as being an undue consumption of time. The prosecutor 

agreed to withdraw 11 of the remaining tattoo photographs.8 

When court resumed the following day, the prosecutor questioned Detective 

Frazier on the additional tattoo photos that had not been withdrawn. Detective Frazier 

testified that Exhibit 65 was another picture of the dog paw on Lopez’s face; Exhibits 67 

and 68 showed various tattoos of Bulldogs on Lopez’s upper arm; Exhibit 69 was a right 

forearm tattoo showing the word “Pleasant,” which stood for the Pleasant Street faction 

of the Northside Bulldogs; Exhibit 71 was a left arm tattoo of the letters “NFS,” meaning 

Northside Fresno; Exhibit 73 showed a demon head on Lopez’s upper left arm; Exhibit 

74 depicted the eyes and teeth of a Bulldog and the letters “MNTL” on Lopez’s left hand 

and wrist; and Exhibits 75 and 76, which showed additional tattoos on Lopez’s left arm. 

According to Detective Frazier, putting a gang tattoo on one’s face, where it is 

seen by all, is a sign of commitment to a gang. Detective Frazier testified that the “more 

hard core” a gang member, the more tattoos he is likely to have. Detective Frazier 

described Lopez as “like a walking billboard for the Bulldogs.” 

 

the Court felt it did deal with the issue of motive based upon the Court’s review of the 

recorded statement of Mr. Lopez.” 

8 The photos not shown were Exhibits 62-64, 66, 70, 72, 77-81. 
11.

Detective Frazier testified generally that there are Northern and Southern Hispanic 

gangs in California, and that the Bulldogs used to be Northerners, but have separated off 

into their own group. He testified that Bulldogs and Nortenos, who wear red, continue to 

be rivals of Southerners, who wear blue. Bulldogs “bark” to let other people know who 

they represent. On cross-examination, Detective Frazier admitted that there was no 

evidence the victim Hernandez was a gang member. 

The trial court subsequently instructed the jury with CALCRIM No. 1403 as 

follows:

“ ... [Y]ou may consider evidence of gang membership only for the limited 

purpose of deciding whether: The defendant had a motive to commit the 

crime charged. [¶] You may not consider this evidence for any other 

purpose.... [Y]ou may not conclude from this evidence that the defendant 

is a person of bad character or that he has a disposition to commit crime.” 

During closing, the prosecutor argued Lopez made a premeditated and deliberate 

decision to kill Hernandez because he was wearing a blue work uniform. 

During the sanity phase of the trial, the prosecutor continued to emphasize 

Lopez’s Bulldog membership. After paramedic Arturo Carreon testified that Lopez was 

not wearing a shirt on December 4, when he was transported to the hospital, the 

prosecutor showed Carreon a photo of Lopez’s chest and arms (EXH. 51) and asked 

whether the tattoos looked familiar. The prosecutor did the same when paramedic Byron 

Diel testified that Lopez was bare-chested on December 6, when he was again transported 

to the hospital. Diel testified that he had heard Bulldog members bark in the past and he 

would be scared if a heavily-tattooed man was walking around barking. And former 

probation officer Doyden said she remembered Lopez because he was proud of his 

Bulldog collar and other tattoos. 
12.

On cross-examination, Dr. Seymour testified that he had seen Lopez’s tattoos 

before rendering his evaluation, but he did not know “specifically” what the extensive 

tattooing signified for a criminal street gang member. Dr. Seymour did not think the fact 

that Hernandez was wearing blue had any significance, because, had Lopez been sane at 

the time of the shooting, he would have recognized Hernandez as a truck driver wearing a 

uniform, not a Sureno. 

In closing during the sanity phase, the prosecutor argued that Lopez’s motive for 

the shooting was to kill a “scrap.” 

Applicable Law and Analysis

“‘Relevant evidence’ means evidence, including evidence relevant to the 

credibility of a witness or hearsay declarant, having any tendency in reason to prove or 

disprove any disputed fact that is of consequence to the determination of the action.” 

(Evid. Code, § 210.) “Gang evidence should not be admitted at trial where its sole 

relevance is to show a defendant’s criminal disposition or bad character as a means of 

creating an inference the defendant committed the charged offense.” (People v. Sanchez

(1997) 58 Cal.App.4th 1435, 1449.) “In cases not involving the gang enhancement, we 

have held that evidence of gang membership is potentially prejudicial and should not be 

admitted if its probative value is minimal. [Citation.] But evidence of gang membership 

is often relevant to, and admissible regarding, the charged offense. Evidence of the 

defendant’s gang affiliation - including evidence of the gang’s territory, membership, 

signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like - can 

help prove identity, motive, modus operandi, specific intent, means of applying force or 

fear, or other issues pertinent to guilt of the charged crime.” (People v. Hernandez

(2004) 33 Cal.4th 1040, 1049-1050.) Specifically, “[g]ang evidence is relevant and 

admissible when the very reason for the underlying crime, that is the motive, is gang 

related. [Citation.]” (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167.) In a 

sanity proceeding, a history of conduct, past as well as present, is an important 
13.

consideration in an appraisal of mental status. (People v. Houser (1965) 238 Cal.App.2d 

930, 933.) 

Evidence Code section 352 provides: “The court in its discretion may exclude 

evidence if its probative value is substantially outweighed by the probability that its 

admission will (a) necessitate undue consumption of time or (b) create substantial danger 

of undue prejudice, of confusing the issues, or of misleading the jury.” Evidence related 

to gang membership is not insulated from the general rule that all relevant evidence is 

admissible if it is relevant to a material issue in the case other than character, is not more 

prejudicial than probative, and is not cumulative. (People v. Avitia (2005) 127 

Cal.App.4th 185, 192.) 

“‘[A]n appellate court applies the abuse of discretion standard of review to any

ruling by a trial court on the admissibility of evidence, including one that turns on the 

relative probativeness and prejudice of the evidence in question [citations]. Evidence is 

substantially more prejudicial than probative (see Evid. Code, § 352) if, broadly stated, it 

poses an intolerable “risk of the fairness of the proceedings or the reliability of the 

outcome.” [Citation.]’ [Citation.]” (People v. Jablonski (2006) 37 Cal.4th 774, 805.) 

“‘[B]ecause a motive is ordinarily the incentive for criminal behavior, its probative value 

generally exceeds its prejudicial effect, and wide latitude is permitted in admitting 

evidence of its existence.’ [Citation.]” (People v. Gonzalez (2005) 126 Cal.App.4th 

1539, 1550.) “Nonetheless, even if the evidence is found to be relevant, the trial court 

must carefully scrutinize gang-related evidence before admitting it because of its 

potentially inflammatory impact on the jury. [Citations.]” (People v. Albarran (2007) 

149 Cal.App.4th 214, 224 (Albarran).) 

“The admission of gang evidence over an Evidence Code section 352 objection 

will not be disturbed on appeal unless the trial court’s decision exceeds the bounds of 

reason. [Citation.]” (People v. Olguin (1994) 31 Cal.App.4th 1355, 1369.) In assessing 

prejudice, we must remember that “[t]he prejudice which exclusion of evidence under 
14.

Evidence Code section 352 is designed to avoid is not the prejudice or damage to a 

defense that naturally flows from relevant, highly probative evidence. ‘[A]ll evidence 

which tends to prove guilt is prejudicial or damaging to the defendant’s case. The 

stronger the evidence, the more it is “prejudicial.” The “prejudice” referred to in 

Evidence Code section 352 applies to evidence which uniquely tends to evoke an 

emotional bias against the defendant as an individual and which has very little effect on 

the issues ... [it] is not synonymous with “damaging.”’ [Citation.]” (People v. Karis

(1988) 46 Cal.3d 612, 638.)

Furthermore:

“To prove a deprivation of federal due process rights, [a defendant] 

must satisfy a high constitutional standard to show that the erroneous 

admission of evidence resulted in an unfair trial. ‘Only if there are no 

permissible inferences the jury may draw from the evidence can its 

admission violate due process. Even then, the evidence must “be of such 

quality as necessarily prevents a fair trial.” [Citations.] Only under such 

circumstances can it be inferred that the jury must have used the evidence 

for an improper purpose.’ [Citation.] ‘The dispositive issue is ... whether 

the trial court committed an error which rendered the trial “so ‘arbitrary and 

fundamentally unfair’ that it violated federal due process.” [Citation.]’ 

[Citation.]” (Albarran, supra, 149 Cal.App.4th at pp. 229-230, fn. 

omitted.) 

Lopez contends that the gang evidence, particularly the extensive photos of his 

gang tattoos and the police officer’s testimony about the Bulldogs was irrelevant and 

cumulative because there was no evidence Lopez killed Hernandez for any reason related 

to Lopez’s Bulldog affiliation. Lopez argues the trial court’s admission of the gang 

evidence violated rules of evidence and prejudiced the verdict under state law, and also 

that the erroneous admission of this evidence was so serious as to violate his federal 

constitutional rights to due process, rendering his trial fundamentally unfair. 
15.

In support of his argument, Lopez relies on Albarran, supra, 149 Cal.App.4th 214, 

in which the appellate court found the admission of gang evidence violated due process, 

rendering the trial fundamentally unfair. (Id. at p. 232.) In Albarran, the defendant was 

charged with multiple offenses based on his participation in a shooting at the victim’s 

home. He was not charged with the gang substantive offense, but gang enhancements 

were alleged. (Id. at p. 217.) The trial court permitted the prosecution to introduce gang 

evidence to prove the defendant’s motive and intent. The jury convicted the defendant of 

the substantive offenses and found the gang enhancements true. Thereafter, the court 

granted a motion to dismiss the gang allegation for insufficient evidence. (Ibid.)

Albarran held that, while the trial court may have initially found the defendant’s 

gang activities were relevant and probative to his motive and intent, the court abused its 

discretion when it permitted the prosecution to introduce additional gang evidence that 

was completely irrelevant to the defendant’s motive or the substantive criminal charges. 

(Albarran, supra, 149 Cal.App.4th at pp. 226-228, 230.) The irrelevant evidence 

included other gang members’ threats to kill police officers, lengthy descriptions of 

crimes committed by other gang members, and references to the Mexican Mafia prison 

gang. Albarran characterized the irrelevant gang evidence as “extremely and uniquely 

inflammatory, such that the prejudice arising from the jury’s exposure to it could only 

have served to cloud their resolution of the issues.” (Id. at pp. 227, 230, fns. omitted.) 

Albarran also classified this evidence as “overkill,” and said it was “troubled” by the trial 

court’s failure to scrutinize the potential prejudice of the gang offense on the substantive 

charges. (Id. at p. 228, fn. omitted.) Albarran found the irrelevant and prejudicial gang 

evidence so inflammatory it “had no legitimate purpose in this trial” and held its 

admission violated the defendant’s due process rights. (Id. at pp. 230-231.) 

Here, the gang evidence was properly admitted during the guilt phase on the issue 

of motive, providing the missing link between what could appear to be an otherwise 

random shooting and Lopez’s statements to officers. The prosecution’s theory was that 
16.

Lopez killed Hernandez because he was wearing blue, the color of Lopez’s rival gang, 

and the killing was the result of Lopez’s premeditation and deliberation to kill rival gang 

members. Lopez admitted to law enforcement that he killed Hernandez because the 

voices in his head were telling him to “go kill scraps” and “handle [his] business.” As 

noted by the trial court, the evidence of Lopez’s gang membership was necessary to give 

the jury a proper understanding of Lopez’s statements, since a layperson would not 

understand what it meant to kill “scraps” and handle his business. The prosecution did 

not argue that the shooting was in any way sanctioned by or for the benefit of the gang. 

The extent of Lopez’s gang tattoos tended to show his level of commitment to the 

gang, which in turn strengthened the prosecution’s theory of Lopez’s motive to kill 

Hernandez. When someone adorns one’s body with tattoos, especially to the extent of 

the tattoos in this case, it demonstrates what can be argued to be a certain degree of 

allegiance, loyalty, and commitment to a particular group or organization. This 

commitment relates directly to issues of motive in this case.

The gang evidence was also properly admitted during the sanity phase to show 

Lopez was sane at the time of the killing and that he acted pursuant to his Bulldog 

commitment. 

Even if we were to assume error for the admission of excessive photographs, for 

the sake of argument, Lopez has not demonstrated prejudice under either People v. 

Watson (1956) 46 Cal.2d 818, 836 (Watson), or under Chapman v. California (1967) 386 

U.S. 18, 24 (Chapman). (See People v. Boyette (2002) 29 Cal.4th 381, 428 [Watson

standard applied to prejudicial error analysis for errors of state law, while beyond-areasonable-doubt standard of Chapman applies to similar analysis for federal 

constitutional errors such as deprivation of due process].) 

The evidence against Lopez was overwhelming. He was caught on video getting 

out of the truck, looking around, shooting Hernandez and then running back to the truck. 

He admitted he was a gang member and that he wanted to kill “scraps.” There was also 
17.

solid evidence of Lopez’s sanity. Given the nature and amount of gang evidence at issue, 

relative to the other evidence presented at trial, we are convinced under either the state or 

federal standards of prejudicial error that reversal is unwarranted. 

II. DID THE TRIAL COURT PREJUDICIALLY ERR IN ALLOWING 

PHOTOGRAPHS OF THE VICTIM?

Lopez contends that the trial court abused its discretion in admitting a number of 

prejudicial photos of the victim Hernandez during the guilt phase. Lopez also asserts that 

admission of the evidence resulted in a fundamentally unfair trial. We find no prejudicial 

error.

Background

During in limine motions, the prosecutor sought to admit 20 photos of 

Hernandez’s corpse at the scene of the shooting (EXHS. 25-44). Defense counsel 

objected that the photos were more prejudicial than probative. After discussion, the 

prosecutor withdrew 11 of the photos (EXHS. 26, 28-29, 31-33, 35-37, 39-40). In 

addition, defense counsel withdrew his objection to five photos that showed Hernandez’s 

gunshot wounds cleansed of blood (EXHS. 41-44), conceding that these photos could be 

relevant to Lopez’s mental state, showing that he was able to fire the gun accurately. 

Defense counsel also stated that he did not object to photos of the corpse covered in a 

tarp, to show the location where Hernandez was killed. This left five photos in dispute -

exhibits 25, 27, 30, 34, and 38. The trial court concluded all five disputed photos were 

admissible, finding they were not unduly prejudicial because they were “not much 

different than what basically is shown on television.” The trial court further determined 

the photos relevant to prove that Hernandez was killed, the circumstances of his death, 

and whether the murder was deliberate or premeditated. 

Discussion was then had concerning eight autopsy photos the prosecution wished 

to admit (EXHS. 94-101). The prosecutor stated the photos would assist the medical 

examiner in testifying about Hernandez’s wounds. The prosecutor also thought it 
18.

important that the jury understood Lopez shot Hernandez three times. Defense counsel 

objected that the photos were irrelevant because the cause of death was undisputed and 

that they were more prejudicial than probative. The trial court allowed the autopsy 

photos to be admitted, opining that they were relevant to the coroner’s testimony and 

were not unduly prejudicial because they showed little blood. 

At trial, the five disputed photos showing Hernandez’s body taken at the crime 

scene were admitted and Detective Frazier testified that they showed Hernandez’s body 

lying face down by the delivery truck. The disputed autopsy photos were admitted 

during the testimony of medical examiner, Dr. Gopal, who testified that the photos 

showed fatal wounds to Hernandez’s back and chest caused by three bullets. 

Applicable Law and Analysis 

“The admission of photographs of the victim lies within the broad discretion of the 

trial court when a claim is made that they are unduly gruesome or inflammatory. 

[Citations.] The court’s exercise of that discretion will not be disturbed on appeal unless 

the probative value of the photographs clearly is outweighed by their prejudicial effect. 

[Citations.]” (People v. Crittenden (1994) 9 Cal.4th 83, 133-134.) But it is also true, as 

stated previously, that the trial court has no discretion to admit irrelevant evidence. 

(Evid. Code, § 350; People v. Turner (1984) 37 Cal.3d 302, 321, disapproved on another 

point in People v. Anderson (1987) 43 Cal.3d 1104, 1149-1150.) 

Lopez contends that the photos were irrelevant, since there was no dispute that he 

shot Hernandez three times in the back and that the bullet wounds were the cause of 

death. It is true that, when “‘a defendant offers to admit the existence of an element of a 

charged offense, the prosecutor must accept that offer and refrain from introducing 

evidence ... to prove that element to the jury.’ [Citation.]” (People v. Poggi (1988) 45 

Cal.3d 306, 323 (Poggi).) In Poggi, one photo at issue depicted the victim alive with her 

husband and son on Christmas and the other was an autopsy photo depicting the incisions 

made during a tracheotomy in an attempt to save the victim’s life but not depicting any of 
19.

the wounds the victim sustained during her attack. (Id. at pp. 322-323.) The manner of 

killing was not relevant in Poggi, and the photos were merely introduced for 

identification purposes. (Ibid.) 

But here, while Lopez admitted killing Hernandez, the question of intent and 

deliberation was at issue, which the prosecutor hoped to show by the fact that Lopez got 

out of the truck with a loaded gun, approached Hernandez near the back of the delivery 

truck and shot him three times. Also at issue was Lopez’s sanity, which the prosecutor 

hoped to show in part by his ability to successfully and accurately fire the gun in the 

manner intended. 

We cannot say, after looking at the exhibits in question, that the evidence was 

unduly gruesome. While there was blood shown in some of the photos of Hernandez’s 

body lying on the ground, it was not so pervasive as to unnecessarily evoke undue 

emotional bias. And the autopsy photos admitted showed very little, if any, bodily fluids 

or blood. The more graphic autopsy photos showing more blood, the peeling back of 

Hernandez’s skull, the removal of Hernandez’s brain, and the upper cavity of his skull

were not admitted. 

Under the facts of this case, even if it was error to admit the photos, the error was 

not prejudicial. As we have observed, the evidence against Lopez was overwhelming. 

We conclude no prejudicial error occurred under either Watson or even under the more 

stringent Chapman standard. (Watson, supra, 46 Cal.2d at p. 836; Chapman, supra, 386 

U.S. at p. 24.) 

III.DID THE PROSECUTOR COMMIT MISCONDUCT DURING THE SANITY 

PHASE OF TRIAL?

Lopez contends the judgment in the sanity phase of his trial must be reversed 

because the prosecutor engaged in misconduct during cross-examination and closing 

argument. We find no merit to his claim.
20.

Background

Lopez first contends the prosecutor committed misconduct during crossexamination and closing by urging the jury to conclude that Lopez’s not guilty by reason 

of insanity (NGI) plea was evidence of malingering. 

On cross-examination, the prosecutor asked defense expert Dr. Geiger how she 

reconciled her testimony that Lopez did not want to appear to be mentally ill with the fact 

that Lopez had entered an NGI plea. Dr. Geiger responded:

“ ... I think you can reconcile it because someone has an underlying 

dynamic of, in general, not wanting to appear as crazy or sick or mentally 

ill. It doesn’t necessarily mean that they’re foolish when it comes to being 

involved in a life-changing legal situation. And I don’t actually know the 

mechanics of what happened or what transpired between Mr. Lopez and his 

counsel, as far as how he got to that plea.... [¶] ... [¶] The fact that he said 

it personally doesn’t negate his dynamic, his underlying dynamic that he 

doesn’t want to be seen as mentally ill on a day-to-day basis.” 

When asked if this was “another situation or another circumstance where [Lopez] is using 

his mental illness to his advantage,” Geiger stated, “Possibly,” but then noted various test 

results that indicated Lopez was not trying to appear mentally ill. 

In closing, the prosecutor argued that Lopez’s tendency to tell the testifying 

witnesses that he heard voices was inconsistent with the idea that he did not want to 

appear mentally ill. The prosecutor also argued that Lopez consistently used mental 

illness to manipulate people, just like the defense in this case. 

Lopez also contends the prosecutor committed misconduct during closing 

argument by “acting as his own psychiatric expert, diagnosing Lopez as a ‘malingerer’ 

with no support in the evidence.” 

During the sanity phase, defense expert Dr. Seymour testified that he did not 

suspect Lopez was malingering, given that he had a long documented history of 

psychiatric problems, he complained to family and friends about hearing voices when he 
21.

had no motive to lie, and he was reluctant to tell the police that he was hearing voices for 

fear that the officers would think he was crazy. 

On cross-examination by the prosecutor, Dr. Seymour acknowledged that he had 

not administered a test for malingering even though delusions and auditory hallucinations 

are symptoms most commonly and easily faked. The prosecutor recited a list of four 

diagnostic criteria for malingering from the DSM-IV9: being referred by an attorney; 

marked discrepancy between a person’s claimed stress or disability and the objective 

findings; lack of cooperation during the diagnostic evaluation and non-compliance with 

the prescribed treatment regimen; and the presence of an antisocial personality disorder. 

Dr. Seymour agreed that the diagnostic criteria mentioned by the prosecutor were 

accurate, that Lopez had been referred to him by an attorney, that Lopez had traits of 

antisocial personality disorder, and that Lopez had shown noncompliance with prescribed 

treatment at the jail. But Dr. Seymour did not agree that Lopez fit the definition of a 

malingerer. 

Defense expert Dr. Geiger testified that she considered the possibility that Lopez 

was malingering to avoid criminal consequences, but found her testing of him was 

consistent with actual mental illness. She also did not administer any specific 

malingering test. Instead, she found that Lopez did his best to downplay his mental 

problems and had a significant ability to mask his illness. 

On cross-examination, the prosecutor went through the same DSM-IV criteria for 

malingering with Dr. Geiger, who also admitted Lopez had been referred to her by an 

attorney, had given some invalid responses to questions, had been uncooperative on one 

 

9 DSM-IV refers to the American Psychiatric Association’s Diagnostic and 

Statistical Manual of Mental Disorders, fourth addition. (People v. Hajek and Vo (2014) 

58 Cal.4th 1144, 1241.) 
22.

occasion, and had exhibited noncompliance with prescribed treatment at the jail. But she 

too did not think specific testing for malingering was warranted. 

The parties subsequently stipulated that, “on July 20th 2010, the defendant agreed 

that his plea in this case would be not guilty by reason of insanity.” During closing, 

defense counsel explained to the jury that, although a defendant must personally enter an 

insanity plea, his lawyer advises the defendant on what to do. 

The prosecutor, in closing, criticized Dr. Geiger and Dr. Seymour for failing to 

test Lopez for malingering, and argued, “You have plenty of evidence that the defendant 

has a motive to get himself out of trouble to the extent he can,” and that Lopez had a 

history of claims of mental illness “as a manipulation” “[j]ust like he did in this case.” 

The prosecutor again mentioned the DSM-IV criteria, argued that three of the criteria had 

been met and that “we could probably make a case for the fourth one,” and that Lopez 

“actually fits the criteria for malingering. Absolutely.” 

Applicable Law

1. Not Guilty by Reason of Insanity Plea

“Under California law, if a defendant pleads not guilty and joins it 

with a plea of not guilty by reason of insanity, the issues of guilt and sanity 

are tried separately. Penal Code section 1026, subdivision (a), provides 

that in such circumstances, ‘the defendant shall first be tried as if only such 

other plea or pleas had been entered, and in that trial the defendant shall be 

conclusively presumed to have been sane at the time the offense is alleged 

to have been committed. If the jury shall find the defendant guilty, or if the 

defendant pleads only not guilty by reason of insanity, then the question 

whether the defendant was sane or insane at the time the offense was 

committed shall be promptly tried, either before the same jury or before a 

new jury in the discretion of the court. In that trial, the jury shall return a 

verdict either that the defendant was sane at the time the offense was 

committed or was insane at the time the offense was committed.’” (People 

v. Hernandez (2000) 22 Cal.4th 512, 520-521.) 
23.

“The ‘sanity trial is but a part of the same criminal proceeding as the guilt phase’ 

[citation] but differs procedurally from the guilt phase of trial ‘in that the issue is 

confined to sanity and the burden is upon the defendant to prove by a preponderance of 

the evidence that he was insane at the time of the offense’ [citation]. As in the 

determination of guilt, the verdict of the jury must be unanimous. [Citation.]” (Ibid.) 

2. Prosecutorial Misconduct

“‘A prosecutor who uses deceptive or reprehensible methods to persuade the jury 

commits misconduct, and such actions require reversal under the federal Constitution 

when they infect the trial with such “‘unfairness as to make the resulting conviction a 

denial of due process.’” [Citations.] Under state law, a prosecutor who uses deceptive or 

reprehensible methods commits misconduct even when those actions do not result in a 

fundamentally unfair trial. [Citation.]’ [Citations.]” (People v. Salcido (2008) 44 

Cal.4th 93, 152, italics omitted.) 

“‘“[T]he prosecution has broad discretion to state its views as to what the evidence 

shows and what inferences may be drawn therefrom.”’” (People v. Welch (1999) 20 

Cal.4th 701, 752.) But a prosecutor “may not examine a witness solely to imply or 

insinuate the truth of the facts about which questions are posed.” (People v. Visciotti

(1992) 2 Cal.4th 1, 52.) And “[t]o prevail on a claim of prosecutorial misconduct based 

on remarks to the jury, the defendant must show a reasonable likelihood the jury 

understood or applied the complained-of comments in an improper or erroneous manner. 

[Citations.] In conducting this inquiry, we ‘do not lightly infer’ that the jury drew the 

most damaging rather than the least damaging meaning from the prosecutor’s statements. 

[Citation.]” (People v. Frye (1998) 18 Cal.4th 894, 970, overruled on other grounds in 

People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)

“In general, ‘“‘a defendant may not complain on appeal of prosecutorial 

misconduct unless in a timely fashion - and on the same ground - the defendant 

[requested] an assignment of misconduct and [also] requested that the jury be 
24.

admonished to disregard the impropriety.’”’ [Citation.]” (People v. Young (2005) 34 

Cal.4th 1149, 1184-1185.) 

The People contend Lopez forfeited his prosecutorial misconduct argument by 

failing to raise objection in the trial court, when objections and admonitions would have 

cured the alleged harms. Lopez concedes he did not object. For the sake of judicial 

efficiency, we will address the merits of Lopez’s prosecutorial misconduct contentions. 

(People v. Ochoa (1998) 19 Cal.4th 353, 428.) By doing so, we avoid an unnecessary

analysis of whether he received ineffective assistance of counsel, which he argues in the 

alternative. (People v. Ibarra (2007) 156 Cal.App.4th 1174, 1179.)

Analysis 

Lopez objects to the prosecutor’s line of questioning during cross-examination 

about Lopez’s NGI plea, claiming it is misconduct for a prosecutor to comment on the 

exercise of a defendant’s legal right. While this is true (e.g., a prosecutor may not 

comment on a defendant’s right to remain silent and not testify (Griffin v. California

(1965) 380 U.S. 609, 611-615)), “[a]n insanity plea is not the assertion of a ‘right.’” 

(People v. Hernandez, supra, 22 Cal.4th at p. 523.) Instead, insanity is a “special plea to 

the effect that ... the defendant ... is not amenable to punishment under the law,” and the 

defendant has the burden of proving the defense by a preponderance of the evidence. (Id.

at pp. 521, 522.) 

Lopez analogizes the prosecutor’s argument to the blatant misconduct described in 

a sanity trial in People v. Sorenson (1964) 231 Cal.App.2d 88 (Sorenson). The analogy 

fails. In Sorenson, the defendant entered a plea of not guilty by reason of insanity to 

charges that he had written three bad checks. (Id. at p. 90.) He had a history of writing 

bad checks. (Ibid.) In closing, the prosecutor argued: “‘[W]e get caught and we tried this 

other road before, and it doesn’t work so now let’s have a new plea, let’s try something 

different, nothing worked before, let’s try a plea of insanity this time. “If I am going to be 

confined for anything at all, let’s make it some time in the hospital instead of jail.” If the 
25.

doctor feels he is not in one of these states of being manic depressive this particular 

minute, this turns him loose.’” (Id. at p. 91.) 

The Sorenson court found the argument “obvious misconduct” for several reasons:

“Defendant’s immediate or ultimate destination - whether state hospital, 

state prison or to be ‘turned loose’ - was a judgment which the law reposed 

in other hands than the jury’s. [Fn omitted.] The Prosecutor’s statement 

was a thinly disguised appeal to the jurors to abdicate their lawful role and 

to decide the issue of sanity in terms of their own opinion that 

imprisonment, not hospitalization, was defendant’s proper fate. In effect, 

the district attorney was urging the jury to usurp functions reposed by 

statute in other hands. The statement was an appeal to prejudice, an 

attempt to arouse aversion toward a verdict which might ‘turn him loose’ to 

victimize innocent people with more bad checks. Finally, the argument 

misstated the law, telling the jury that after defendant’s commitment to a 

state hospital, ‘the doctor’ could release him. Penal Code sections 1026 

and 1026a, to the contrary, prevent the release of a defendant without a 

judicial hearing and a finding of restoration to sanity.” (Sorenson, supra, 

231 Cal.App.2d at pp. 91-92.) 

The court found the misconduct to be prejudicial, noting the only medical evidence was 

presented by the defendant and “[a]though not compelling, that evidence strongly tended 

to support a verdict of legal insanity.” The court also noted there had been no admonition 

to the jury, making it likely the “impropriety” of the prosecutor materially influenced the 

verdict. (Id. at pp. 93-94.) 

Here, it was not misconduct for the prosecutor to impeach Dr. Geiger’s claim that 

Lopez did not want to appear mentally ill. A prosecutor has wide latitude to test the 

credibility of an expert witness on cross-examination so that the jury may determine the 

weight to be given the testimony. (People v. Ryan (1956) 140 Cal.App.2d 412, 421.) 

Lopez’s presentation of an insanity defense, and the evidence he presented, contradicted 

Dr. Geiger’s opinion that Lopez tried not to appear mentally ill, a fact the prosecutor took 

advantage of. It was not misconduct for the prosecutor to emphasize Lopez’s tendency 

not to hide any mental illness and that he used it to manipulate those around him.
26.

Lopez also contends the prosecutor committed misconduct because he, in essence, 

told the jury in closing that, based on specialized knowledge and expertise on his part, 

Lopez had been diagnosed as a malingerer. It is true that a prosecutor, serving as his 

own unsworn witness, is beyond the reach of cross-examination in violation of a 

defendant’s right to confront all witnesses against him. (People v. Bolton (1979) 23 

Cal.3d 208, 214-215, fn. 4.) 

But here, the prosecutor never claimed that Lopez had been diagnosed as a 

malingerer, nor did he present his argument under a false cover of scientific authority that 

he had proved Lopez was malingering based on the malingering criteria alone. Instead, 

the prosecutor argued that defense experts’ opinions were flawed because they had failed 

to test Lopez for malingering, even though he fit several of the criteria that should have 

lead an evaluator to strongly suspect such. 

In any event, even if we were to find the complained of questioning on crossexamination and argument during closing error, it was not prejudicial on either state or 

federal grounds. While defense counsel presented expert testimony supporting the claim 

of insanity, the prosecutor presented expert testimony refuting that claim. It is the 

exclusive function of the trier of fact to assess the credibility of witnesses and draw 

reasonable inferences from the evidence. (People v. Alcala (1984) 36 Cal.3d 604, 623, 

disapproved on other grounds by People v. Falsetta (1999) 21 Cal.4th 903, 911.) The 

trial court properly instructed the jury on the proper manner to evaluate expert witness 

testimony. (CALCRIM No. 332.) In addition, the jury was instructed that “[n]othing that 

the attorneys say is evidence,” and that evidence consists of the testimony of witnesses. 

(CALCRIM No. 222.) We presume the jury followed this instruction, giving the 

prosecutor’s remarks little significance. (People v. Boyette, supra, 29 Cal.4th at p. 453; 

People v. Morales (2001) 25 Cal.4th 34, 47.)
27.

IV.DID CALCRIM NO. 3450 VIOLATE SECTION 25 OR LOPEZ’S 

CONSTITUTIONAL RIGHTS TO DUE PROCESS AND TO PRESENT A 

DEFENSE?

Lopez contends that CALCRIM No. 3450 as given was inconsistent with the legal 

test for insanity, violating section 25 and his constitutional rights to due process and to 

present a defense. We disagree.

We note first that Lopez never objected to CALRIM No. 3450 on several of the 

grounds he now raises. Generally, a party may not complain on appeal that an instruction 

correct in law and responsive to the evidence was too general or incomplete unless the 

party requested appropriate clarifying or amplifying language. (People v. Lang (1989) 49 

Cal.3d 991, 1024; People v. Hart (1999) 20 Cal.4th 546, 622.) Lopez contends, while no

objection was made, none was necessary because the instruction issue affects his 

substantial rights. (§ 1259; see, e.g., People v. Harris (1981) 28 Cal.3d 935, 956.) We 

will address the issue without deciding whether an objection should have been made. 

Section 25 and CALCRIM No. 3450

As noted earlier, “Insanity, under California law, means that at the time the 

offense was committed, the defendant was incapable of knowing or understanding the 

nature of his act or of distinguishing right from wrong.” (People v. Hernandez, supra, 22 

Cal.4th at pp. 520-521.) The statutory definition of insanity is provided in section 25, 

subdivision (b), which provides, in relevant part:

“In any criminal proceeding, ... in which a plea of not guilty by reason of 

insanity is entered, this defense shall be found by the trier of fact only when 

the accused person proves by a preponderance of the evidence that he or 

she was incapable of knowing or understanding the nature and quality of 

his or her act and of distinguishing right from wrong at the time of the 

commission of the offense.” 

CALCRIM 3450, the pattern instruction defining the burden of proof and the legal 

standards for assessing sanity, as given and pertinent to the discussion here, instructed 

that Lopez was insane if: 
28.

“One, when he committed the crime, he had a mental disease or defect; [¶] 

And two, because of that disease or defect, he was incapable of knowing or 

understanding the nature and quality of his act or was incapable of 

knowing or understanding that his act was morally or legally wrong. [¶] ... 

[¶] You may find that at times the defendant was legally sane and at other 

times he was legally insane. You must determine whether he was legally 

insane when he committed the crime.” (Italics added.)

Applicable Law and Analysis

Appellate courts determine de novo whether a jury instruction correctly states the 

law. (People v. Posey (2004) 32 Cal.4th 193, 218.) “Review of the adequacy of 

instructions is based on whether the trial court ‘fully and fairly instructed on the 

applicable law.’ [Citation.]” (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) 

“‘“In determining whether error has been committed in giving or not giving jury 

instructions, we must consider the instructions as a whole ... [and] assume that the jurors 

are intelligent persons and capable of understanding and correlating all jury instructions 

which are given.” [Citation.]’ [Citation.]” (Ibid.) “‘Instructions should be interpreted, if 

possible, so as to support the judgment rather than defeat it if they are reasonably 

susceptible to such interpretation.’ [Citation.]” (Ibid.)

Lopez contends that CALCRIM No. 3450 as given was faulty because it did not 

set forth the proper test for insanity, or that “[a]t the very least, it was confusing and 

misleading.” Specifically, Lopez claims that the italicized portion of the instruction was 

incorrect because it lacked “reference to the time of the offense,” implying that if a 

defendant “could possibly have known his act was morally wrong under any 

circumstances, then he is not legally insane.” We disagree.

“[T]he thrust of CALCRIM No. 3450 is to inform the jury that the burden is on the 

defendant to prove he was insane at the time of the offense[]. This is consistent with 

section 25, subdivision (b).” (People v. Thomas (2007) 156 Cal.App.4th 304, 310.) 

While the challenged paragraph of the pattern instruction, when viewed in isolation, may 

be potentially misleading, when read in context, it certainly is not. The first prong in 
29.

assessing sanity stated Lopez was legally insane if, “when he committed the crime, he 

had a mental disease or defect,” thus expressly stating that the only relevant time period 

for the mental disease or defect was at the time of the offense. The second prong then 

references the first prong by starting, “because of that disease or defect ...,” necessarily 

referencing the relevant time period. Thus, while the phrase “when he committed the 

crime” did not appear in the second prong of the test itself, it clearly related to that 

specific time period. Moreover, the complete instruction, as given, plainly states no less 

than seven times that to find Lopez insane it had to find him so at the time he committed 

the offense. 

Viewing the instruction as a whole, there is no “reasonable likelihood” the jury 

understood the instructions as Lopez asserts. (Estelle v. McGuire (1991) 502 U.S. 62, 

72.) We reject his contention to the contrary. Because we do so, we need not address his 

further argument that the instruction, as it pertained to the definition of insanity, violated 

his due process rights or his right to present a defense. 

V. DID CALCRIM NO. 3450 VIOLATE SECTION 29.8 OR LOPEZ’S 

CONSTITUTIONAL RIGHTS TO DUE PROCESS AND TO PRESENT A 

DEFENSE? 

Lopez also contends that CALCRIM No. 3450, as given, did not accurately reflect 

the law set forth in section 29.8, violating his constitutional rights to due process and to 

present a defense. We disagree.

Section 29.8 and CALCRIM No. 3450

Section 29.8 provides, in relevant part:

“In any criminal proceeding in which a plea of not guilty by reason of 

insanity is entered, this defense shall not be found by the trier of fact solely 

on the basis of a personality or adjustment disorder, a seizure disorder, or 

an addiction to, or abuse of, intoxicating substances....”
30.

In other words, the defense of legal insanity can never be proven, as a matter of law, 

when the only mental disease or defect is a personality disorder. (People v. Cabonce

(2009) 169 Cal.App.4th 1421, 1436.) 

The jury was instructed on this concept in part of CALCRIM No. 3450 as follows:

“None of the following qualify as a mental disease or defect for purposes of 

an insanity defense: personality disorder, adjustment disorder, seizure 

disorder, or an abnormality of personality or character made apparent only 

by a series of criminal or antisocial acts. [¶] If the defendant suffered from 

a settled mental disease or defect caused by the long-term use of drugs or 

intoxicants, that settled mental disease or defect combined with another 

mental disease or defect may qualify as legal insanity. A settled mental 

disease or defect is one that remains after the effect of the drugs or 

intoxicants has worn off.” 

Applicable Law and Analysis

Lopez contends that the instruction as given was flawed for several reasons. First, 

he contends that CALCRIM No. 3450 is defective because it does not tell the jurors that 

they cannot find insanity “solely on the basis of personality disorder,” as provided in 

section 29.8. Instead, Lopez argues that, in a case like his where he has multiple 

diagnoses, the instruction prohibits the jury from considering whether he was insane due 

to the effect of a personality disorder in combination with some other non-exempted 

mental illness. We disagree. 

To recap, defense expert Dr. Geiger opined that Lopez had a schizoaffective 

disorder with various sub-components, as well as a personality disorder, not otherwise 

specified, with borderline narcissistic and antisocial features. Defense expert Dr. 

Seymour diagnosed Lopez with a bipolar disorder with psychotic features and a 

personality disorder not otherwise specified, with borderline and antisocial features. He 

also found Lopez had a history of polysubstance dependence, but could not say if he was 

under the influence at the time of the crime. Court-appointed expert Dr. Velosa 
31.

diagnosed Lopez with polysubstance drug dependence, which was now in remission. No 

mention was made by Dr. Velosa of Lopez having a personality disorder. 

Lopez cites the predecessor CALJIC instruction which, he argues, did not contain 

the error he claims exists in CALCRIM No. 3450. That instruction, CALJIC No. 4.00, 

states, in pertinent part: “this defense of legal insanity does not apply when the sole or 

only basis or causative factor for the mental disease or mental defense is [a personality or 

adjustment disorder] [a seizure disorder] [, or] [an addition to, or an abuse of, intoxicating 

substances].]” (Italics added.) 

We find Lopez’s contention contrary to the plain language of the instruction as 

given. While the statement may be improved upon, the CALCRIM instruction did not 

preclude the jury from considering a bipolar or schizoaffective disorder in tandem with a 

personality disorder in deciding whether Lopez was insane at the time of the murder. Not 

every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a 

due process violation. The question is ‘“whether the ailing instruction ... so infected the 

entire trial that the resulting conviction violates due process.”’ [Citations.]” (Estelle v. 

McGuire, supra, 502 U.S. at p. 72.) When read in context, as we must, the instruction 

states that the jury could find Lopez legally insane if it found he had a mental disease or 

defect; that because of the disease or defect he was incapable of knowing or 

understanding the nature and quality of his act or was incapable of knowing or 

understanding that his act was morally or legally wrong; and that, in making that 

determination, a personality disorder did not qualify as a mental disease or defect. 

(CALCRIM No. 3450.)

Furthermore, we note that, in his testimony, Dr. Seymour specifically stated that 

Lopez’s inability to distinguish right from wrong was caused by his “psychosis inherent 

in the bipolar disorder” and not his personality disorder. And, when asked, Dr. Seymour 

agreed that a person cannot be found insane due to a personality disorder. 
32.

We reject Lopez’s claim that the instruction, as given, was inaccurate.

Lopez also asserts the trial court erred in instructing the jury based on section 29.8 

because it did not apply to the evidence and therefore undermined his ability to present a 

defense. According to Lopez, his insanity defense was not based solely on evidence that 

he had a personality disorder, but also on evidence he suffered from psychotic disorders. 

We find Lopez’s reliance on People v. Robinson (1999) 72 Cal.App.4th 421, 

misplaced. There, the appellate court concluded the trial court should not have given a 

special instruction based on section 25.5 (the predecessor to section 29.8) because neither 

the prosecutor nor the defendant relied on the defendant’s “long-term substance abuse 

and possible resulting mental damage or disorder as the sole cause of his insanity.” 

(Robinson, supra, at pp. 423, 428.) But here the prosecution’s theory was that Lopez did 

not suffer from any psychotic disorder, and if he did suffer from any mental illness, it was 

only a personality disorder. The instruction was therefore applicable under the evidence 

presented and argued by the prosecution and we reject Lopez’s argument to the contrary.

Finally, Lopez argues the exclusion of personality disorders from the definition of 

insanity for the purpose of the legal defense under section 29.8 is unconstitutional. The 

crux of Lopez’s argument is that section 29.8 precludes an insanity defense based on a 

personality disorder even if that disorder renders a person legally insane under the 

provision of section 25, which states, in relevant part, that a person may be found not 

guilty by reason of insanity “only when the accused person proves by a preponderance of 

the evidence that he or she was incapable of knowing or understanding the nature and 

quality of his or her act and of distinguishing right from wrong at the time of the 

commission of the offense.” (§ 25, subd. (b).) 

Lopez’s argument is without merit. When read together, sections 25 and 29.8 are 

not inconsistent. Rather, section 29.8 serves to specify the disorders that cannot, by the 

legislature’s evaluation, cause a person to be “incapable of knowing or understanding the 
33.

nature and quality of his or her act and of distinguishing right from wrong at the time of 

the commission of the offense.” (§ 25, subd. (b).)

The limitation of that which qualifies as legal insanity under section 29.8 is 

entirely within the state legislature’s discretion, and is not unconstitutional. (see, e.g., 

Clark v. Arizona (2006) 548 U.S. 735, 752, fn. 11 [“[T]he jurisdictions limit, in varying 

degrees, which sorts of mental illness or defect can give rise to a successful insanity 

defense. Compare, e.g., Ariz. Rev. Stat. Ann. § 13-502(A) (West 2001) (excluding from 

definition of ‘mental disease or defect’ acute voluntary intoxication, withdrawal from 

alcohol or drugs, character defects, psychosexual disorders, and impulse control 

disorders) with, e.g., Ind. Code § 35-41-3-6(b) (West 2004) (excluding from definition of 

‘mental disease or defect’ ‘abnormality manifested only by repeated unlawful or 

antisocial conduct’).”])

VI. DID THE TRIAL COURT PROPERLY DENY LOPEZ’S REQUEST TO 

MODIFY CALCRIM NO. 3450 ON THE CONSEQUENCES OF AN INSANITY 

DEFENSE, THEREBY VIOLATING HIS RIGHT TO DUE PROCESS?

Lopez makes one final argument concerning CALCRIM No. 3450: the trial court 

erroneously refused to give a modification suggested by defense counsel that would have 

accurately informed the jury about the effects of an insanity verdict. Lopez claims that 

the resulting instruction improperly permitted the jurors to speculate about whether they 

would endanger public safety by finding Lopez insane. We disagree. 

Procedural Background

At the outset of the sanity phase of the trial, the trial court expressed its intent to 

instruct the jury with CALCRIM No. 3450 prior to the opening statements by counsel. 

CALCRIM No. 3450 includes the following optional paragraph: 

“[If you find the defendant was legally insane at the time of (his/her)

crime[s], (he/she) will not be released from custody until a court finds 

(he/she) qualifies for release under California law. Until that time (he/she)

will remain in a mental hospital or outpatient treatment program, if 
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appropriate. (He/she) may not, generally, be kept in a mental hospital or 

outpatient program longer than the maximum sentence available for

(his/her) crime[s]. If the state requests additional confinement beyond the 

maximum sentence, the defendant will be entitled to a new sanity trial 

before a new jury. Your job is only to decide whether the defendant was 

legally sane or insane at the time of the crime[s]. You must not speculate 

as to whether (he/she) is currently sane or may be found sane in the future. 

You must not let any consideration about where the defendant may be 

confined, or for how long, affect your decision in any way.]” (CALCRIM 

No. 3450 (Oct. 2010 rev., italics added.)

Defense counsel requested that the italicized portion of the instruction be deleted, 

arguing that it would mislead the jury by incorrectly suggesting that Lopez’s sentence 

would be anything less than a life sentence. Defense counsel suggested that the trial 

court replace the two sentences with the statement, “He may or may not be kept in a 

mental hospital or outpatient program for the rest of his life.” The trial court noted it was 

not given any authority for the proposed change or that the instruction, as written, was an 

incorrect statement of the law. The trial court gave defense counsel time to research the 

issue and present authority. In the meantime, the trial court agreed, with concurrence 

from both the prosecutor and defense counsel, not to include the above referenced 

paragraph when it pre-instructed the jury with the CALCRIM No. 3450. The instruction 

was given without this paragraph prior to opening statements by counsel. 

At a jury instruction conference during the sanity phase, the trial court readdressed 

the issue. Defense counsel reiterated his request to delete the two challenged sentences. 

The trial court noted that, according to the bench notes on the instruction, the paragraph 

need not be given sua sponte but may be given on request. Defense counsel requested 

that the paragraph be given, minus the complained of sentences. The trial court denied 

defense counsel’s request, stating that it would either give the entire paragraph as written 

or not give it at all, because it “[did not] make it a habit to kind of cut and paste from one 

section and delete wholesale sentences like that.” 
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After some discussion, defense counsel conceded that CALJIC No. 4.01 contained 

“the same problem of referring to a maximum sentence that in this case doesn’t exist.” 

When finally faced with the choice to give the paragraph in the instruction in its entirety 

or omit it entirely, defense counsel chose to omit the paragraph in CALCRIM No. 3450. 

He also declined to have the jury instructed with CALJIC No. 4.01 instead. But defense 

counsel then requested the last paragraph of CALJIC No. 4.01 be substituted for the 

objected portion of CALCRIM No. 3450. Defense wished to use the wording of CALJIC 

No. 4.01, which states:

“It is a violation of your duty as jurors if you find the defendant sane at the 

time he committed his offense because of a doubt that the Department of 

Mental Health or the courts will properly carry out their responsibilities.” 

The trial court again ruled that it would not give the paragraph at issue and was not 

inclined to make any modifications to it, such as adding language from CALJIC No. 4.01. 

The jury was subsequently again instructed prior to closing argument with 

CALCRIM No. 3450, sans the contested paragraph. Following closing argument and 

after further discussion about defense counsel’s original request, the trial court instructed 

pursuant to CALCRIM No. 3550, in relevant part, “You must reach your verdict without 

any consideration of punishment.” 

Applicable Law and Analysis

Lopez now argues that the trial court erred by refusing to modify the instruction as 

requested, and that not doing so was prejudicial because the jury may have found him 

sane simply due to concerns he would be released early if the jury found he was insane. 

We disagree. 

Lopez’s argument is based on People v. Moore (1985) 166 Cal.App.3d 540 

(Moore), which held that whenever requested by the defendant or jury, the trial court 

should give an appropriate instruction regarding the consequences of an insanity verdict 
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to ensure the jury does not erroneously believe such a verdict will result in the immediate 

freeing of the defendant. (Id. at pp. 554, 556.) 

“California law originally did not provide” for the type of instruction 

contemplated by Moore. (People v. Kelly (1992) 1 Cal.4th 495, 538.) As a result of 

Moore, however, CALJIC No. 4.01 was drafted in response and it was “intended to aid 

the defense by telling the jury not to find the defendant sane out of concern that otherwise 

he would be improperly released from custody.” (Kelly, supra, at p. 538.) The 

instruction’s intent is to “protect the defense” in an insanity trial. (Ibid.) 

CALCRIM No. 3450 is the successor instruction to CALJIC No. 4.01.10 

CALCRIM No. 3450, like its predecessor, is designed to protect a defendant in an 

 

10 CALJIC No. 4.01 provides, in its entirety: “A verdict of ‘not guilty by reason of 

insanity’ does not mean the defendant will be released from custody. Instead, [he] [she] 

will remain in confinement while the courts determine whether [he] [she] has fully 

recovered [his] [her] sanity. If [he] [she] has not, [he] [she] will be placed in a hospital 

for the mentally disordered or other facility, or in outpatient treatment, depending upon 

the seriousness of [his] [her] present mental illness. [¶] Moreover, [he] [she] cannot be 

removed from that placement unless and until the court determines and finds the 

defendant’s sanity has been fully restored, in accordance with the law of California, or 

until the defendant has been confined for a period equal to the maximum period of 

imprisonment which could have been imposed had [he] [she] been found guilty. [¶] So 

that you will have no misunderstandings relating to a verdict of not guilty by reason of 

insanity, you have been informed as to the general scheme of our mental health laws 

relating to a defendant, insane at the time of [his] [her] crimes. What happens to the 

defendant under these laws is not to be considered by you in determining whether the 

defendant was sane or insane at the time [he] [she] committed [his] [her] crime[s]. Do 

not speculate as to if, or when, the defendant will be found sane. [¶] You are not to 

decide whether the defendant is now sane. You are to decide only whether the defendant 

was sane at the time [he] [she] committed [his] [her] crime[s]. If upon consideration of 

the evidence, you believe defendant was insane at the time [he] [she] committed [his] 

[her] crime[s], you must assume that those officials charged with the operation of our 

mental health system will perform their duty in a correct and responsible manner, and 

that they will not release this defendant unless [he] [she] can be safely returned into 

society. [¶] It is a violation of your duty as jurors if you find the defendant sane at the 

time [he] [she] committed [his] [her] offense[s] because of a doubt that the Department of 

Mental Health or the courts will properly carry out their responsibilities.” 
37.

insanity trial by alleviating the possible fears of the jury that he will be released into the 

community if he is found not guilty by reason of insanity. (People v. Kelly, supra, 1 

Cal.4th at p. 538.) The paragraph at issue in CALCRIM No. 3540 is not limited to the 

two sentences to which Lopez objected. Instead, the instruction advises the jury of

several important facts: if the defendant is found insane, he will not be released from 

custody until a court finds he qualifies for release under state law and, until that time, he 

will remain in the appropriate treatment facility. The instruction concludes with the 

important admonition: “You must not let any consideration about where the defendant 

may be confined, or for how long, affect your decision in any way.” (CALCRIM No. 

3450.)

Both the paragraph with the contested language from CALCRIM No. 3450 and 

CALJIC No. 4.01 are to be given if requested by the defense. (People v. Dennis (1985) 

169 Cal.App.3d 1135, 1140-1141.) Defense counsel was asked several times whether he 

wished to include the contested paragraph from CALRIM No. 3450 and was also asked if 

he wished to have the jury instructed instead with CALJIC No. 4.01 in its entirety. 

Defense counsel declined in each instance. Either one of these instructions would have 

adequately addressed defense counsel’s concerns, and we reject his claim to the contrary. 

We note also that the jury was eventually instructed following argument by 

counsel, pursuant to CALCRIM No. 3550, that it must reach its verdict without any 

consideration of punishment. Absent evidence to the contrary, we presume the jurors 

followed the court’s instruction. (People v. Yeoman (2003) 31 Cal.4th 93, 139.)

VII. CUMULATIVE ERROR 

Finally, Lopez contends that the cumulative impact of all of the above errors 

deprived him of a fair trial. We have either rejected Lopez’s claims of error and/or found 

that any errors, assumed or not, were not prejudicial. Viewed cumulatively, we find that 

any errors do not warrant reversal of the judgment. (People v. Stitely (2005) 35 Cal.4th 

514, 560.) 
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DISPOSITION

The judgment is affirmed. 

_____________________

Franson, J.

WE CONCUR:

_____________________

Hill, P.J.

_____________________

Cornell, J.