PEOPLE v. HARRIS
THE PEOPLE, Plaintiff and Respondent,
v.
LaSHAUN HARRIS, Defendant and Appellant.
No. A116841.
Court of Appeals of California, First District, Division One.
Filed June 30, 2010.
NOT TO BE PUBLISHED IN OFFICIAL REPORTSMARGULIES, J.
Defendant LaShaun Harris, a diagnosed schizophrenic, threw her three children into the San Francisco Bay where they drowned. She was charged with three counts of murder and three counts of assault resulting in the death of a child under age eight. Defendant pleaded not guilty and not guilty by reason of insanity to all counts. In the guilt phase of her bifurcated trial, the jury found her guilty of three counts of second degree murder and other charges. The sanity phase was tried to the court, which found defendant not guilty by reason of insanity, sentenced her to concurrent terms of 25 years to life on the murder convictions, and ordered her committed to Napa State Hospital to serve her terms.
Defendant appeals from her guilt phase convictions, contending the trial court erred in (1) admitting defendant's statements to police on the day of the drowning, and (2) allowing two prosecution psychiatric experts to interview her and testify after she offered psychiatric testimony from her own experts negating her intent to kill her children. Based on the California Supreme Court's holding in Verdin v. Superior Court (2008) 43 Cal.4th 1096 (Verdin), we find merit in the latter contention, but we nonetheless affirm the judgment because defendant fails to establish the Verdin error was prejudicial. I. BACKGROUNDA.Trial Court Proceedings
Defendant was charged by information with three counts of murder (Pen. Code, § 187) and three counts of assault resulting in the death of a child under age eight (Pen. Code, § 273ab). The information further alleged as to the murder counts that, as a special circumstance under Penal Code section 190.2, subdivision (a)(3), defendant committed more than one offense of first or second degree murder.
1. Defendant was living with her sons at the Salvation Army shelter in Oakland. She received $687 per month in public assistance.
2. According to defendant's cousin, the father of defendant's children was rarely present and would be abusive toward defendant and the kids when he was around.
4. As discussed below, Danis was later held to have been superseded by statute on this point in Verdin, supra,43 Cal.4th 1096, 1106. 5. Although the prosecution motion states the prosecution had learned this from defense counsel on October 27, 2005, it appears from reviewing other parts of the record that this was a typographical error and that the prosecution was asserting it had only learned of the defense's planned mental state defense on October 27, 2006.
6. Enacted in June 1990 as part of Proposition 115, Penal Code section 1054, subdivision (e) provides in relevant part that "no discovery shall occur in criminal cases except as provided by this chapter, other express statutory provisions, or as mandated by the Constitution of the United States."
7. Danis justified the rule as a matter of procedural fairness because it would "`violate judicial common sense to permit a defendant to invoke the defense of insanity [or diminished capacity] and foreclose the Government from the benefit of a mental examination to meet this issue.'" (Danis, supra, 31 Cal.App.3d at p. 787, quoting Alexander v. United States (8th Cir. 1967) 380 F.2d 33, 39.) 8. McPeters and Carpenter involved claims that the prosecution's psychiatrist should not have been allowed to testify during the penalty phase of the defendant's capital murder trial that the defendant refused to cooperate in court-ordered examinations. Both opinions followed the same rationale as Danis's: "By tendering his mental condition as an issue in the penalty phase, defendant waived his Fifth and Sixth Amendment rights to the extent necessary to permit a proper examination of that condition. Therefore, those rights were not violated when the examining psychiatrist testified to defendant's refusal to cooperate. [Citations.] Any other result would give an unfair tactical advantage to defendants, who could, with impunity, present mental defenses at the penalty phase, secure in the assurance they could not be rebutted by expert testimony based on an actual psychiatric examination." (McPeters, supra, 2 Cal.4th at p. 1190; see Carpenter, supra, 15 Cal.4th at p. 412.)
9. In response to the Verdin decision, the Legislature amended Penal Code section 1054.3 in 2009, to provide statutory authorization for the discovery procedure at issue in this case and in Verdin. (See Pen. Code, § 1054.3, subd. (b)(2).) The new statute is not retroactive.
10. Dr. Roberts's substantive testimony on direct concerning defendant's mental condition took up barely more than four pages of the transcript.
11. Dr. Good asked defendant if she felt it was dangerous to throw her kids into the water. He testified she responded, "Yeah. I knew they couldn't swim. I wanted them to drown." Good further testified he asked her what she thought would happen when she threw them in the bay, and she responded, "[T]hey would drown." When he asked her what she meant, she said, "[T]hey would be dead."
12. At oral argument, defendant's appellate counsel argued the prosecution interviews of defendant were important because both Dr. Maldonado and Dr. Roberts used their interviews to ask her leading questions based on her statements to others and used her answers at trial to support their opinion that she understood death meant the cessation of life. The record fails to support counsel's assertion. The prosecution played two portions of Roberts's interview for the jury, neither containing leading questions. It played no part of Maldonado's interview. It was the defense that introduced extended portions of the DVD's of both interviews into evidence. If the interview questions and answers were so much more supportive of the prosecution experts' opinions than other evidence in the record, the defense would not have been so anxious for the jury to see the interviews. Further, contrary to counsel's assertion, Dr. Maldonado did not testify on cross-examination he could only be confident in his opinion because he interviewed her. Instead, Dr. Maldonado emphasized the consistencies between what defendant told him and what she had stated in her police interview, and to her doctors and retained expert.