No. D073335.

THE PEOPLE, Plaintiff and Respondent, v. DAVID ANTHONY STROUTH, Defendant and Appellant.

Court of Appeals of California, Fourth District, Division One.

Filed October 22, 2019.

Attorney(s) appearing for the Case

Carl Fabian , under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra , Attorney General, Gerald A. Engler , Chief Assistant Attorney General, Julie L. Garland , Assistant Attorney General, Steve Oetting , Warren Williams , and Matthew Mulford , Deputy Attorneys General, for Plaintiff and Respondent.


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

David Anthony Strouth stabbed and killed his friend Bradley Garner. A babysitter present at the scene testified that immediately following the stabbing, Strouth said he had slayed the beast and hell had fallen. Experts testified that Strouth suffered from Post-Traumatic Stress Disorder (PTSD) and depression, which Strouth argues led to his actions.

The court instructed the jury using CALCRIM No. 3428, which explains a jury can consider evidence of mental disease, defect, or disorder for the purpose of deciding whether the defendant acted with the appropriate mental state for the crime. The court also instructed the jury with CALCRIM No. 571, which explains a killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant kills someone while acting in imperfect self-defense because of an actual belief that the defendant was in imminent danger of being killed or suffering great bodily injury and the belief that the immediate use of deadly force was necessary, if at least one of those beliefs was unreasonable. The court instructed the jury that imperfect self-defense does not apply if the perception of facts is the product of hallucination, and the court referred jurors to CALCRIM No. 627, which defines hallucination and explains that evidence of hallucination may be used in deciding if a defendant acted with deliberation and premeditation.

The jury found Strouth guilty of murder in the second degree. (Pen. Code,1 187, subd. (a).) Strouth appeals, contending the court erred by failing to sua sponte modify the jury instructions to explain the jury could find the defendant guilty of voluntary manslaughter if he acted in response to a partial delusion We conclude the court had no obligation to offer the modified instruction sua sponte, and the jury instructions were correct as given. Accordingly, we affirm the judgment.




The Crime

Strouth was visiting Garner on April 24, 2015. The two were planning to move into an apartment together and had signed the lease agreement that day. That afternoon, they were hanging out at the home where Garner was living with his wife and two small children. Babysitter Jessica Gandarillas, had taken the children to the Schaefers', who were neighbors on a nearby street, where they played and had dinner. When Gandarillas returned home with the children and began preparing them for bed, Garner and Strouth moved to the garage.

The door separating the main house from the garage was open, and while she was reading a book to the children, Gandarillas heard a loud crash coming from the garage; it sounded like someone tripped over a drum set. Gandarillas heard Garner curse, then after some time passed, she heard a shaky, breathing sound.

Strouth entered the home from the garage, and Gandarillas thought he seemed calm and quiet. She asked Strouth if he was okay, but Strouth returned to the garage. He came back about five minutes later, stumbling around like he was intoxicated, and collapsing onto a couch where one of the children was sleeping. Gandarillas described him as dazed and pale, with fixed eyes, and she told him to watch out because a child was on the couch. Strouth apologized and sat up.

When Gandarillas asked Strouth where Garner was, Strouth told her Garner was the devil, but not to worry because Strouth had slayed the beast. Strouth also told Gandarillas that hell fell and the devil had fallen, and he sounded proud and confident. Gandarillas noticed blood on Strouth's hands, and when he returned to the garage, she unsuccessfully attempted to shut and lock the door connecting the garage to the house. Because the door would not lock, she grabbed her car keys and drove to the Schafers' house for help. She told the Schafers that Garner's children were still in their house, Strouth had blood on him, and she was worried about the children. Robert Burkhart was at the Schafers' home that evening, and he heard Gandarillas tell the Schafers that she thought someone was dead, and the killer told Gandarillas that he had slayed the beast.

Burkhart went to his home to grab ammunition and his gun. Scott Schafer grabbed a Ka-Bar knife2 to protect himself, then picked up Burkhart in his truck and drove to Garner's home. When the two men arrived, Burkhart approached the garage, where he could see a lot of blood on the floor and Strouth at the back of the garage on his knees, slicing at his arm. Schafer also noticed Strouth was slashing at his neck. Burkhart drew his weapon and pointed it at Strouth.

Schafer entered the garage and checked Garner's pulse. Schafer approached Strouth from behind. They struggled. Strouth told Schafer, "I'm going to kill you." After Schafer moved Strouth out of the garage and had him in a chokehold, Strouth said, "Just kill me. Put me out of my misery."

While Schafer pulled Strouth out of the garage, Burkhart rolled over Garner and checked for a pulse but found none. He noted a laceration near Garner's aorta with blood oozing, and he began chest compressions, which he continued until paramedics arrived

Schafer told neighbors to remove the children from the home, and he held down Strouth until police arrived. It took three police officers to place Strouth in handcuffs; they were able to gain control after the fire department arrived and administered a sedative. While police were handcuffing Strouth, he repeatedly told them he did not want to live anymore and implored them to just kill him.


Other Testimony

Todd Chaney testified that he first met Strouth in 2015 when Strouth was jumping a gate at the dock on Oceanside Harbor. Chaney spent time with Strouth that day, and while they talked, Strouth made references to the beast and wanting to kill a person named Brian, the beast, or the devil. Chaney also saw Strouth carrying a Ka-Bar knife in a sheath and thought Strouth was crazy, "way off his meds," and potentially violent.


Strouth's Testimony

As a Marine, Strouth had deployed to Iraq twice. The first time, he installed radar systems designed to detect enemy projectiles and sometimes came under attack while installing the systems. The second time he deployed, his job was to assess individuals, including children, to determine if they posed a threat. After leaving the military in 2014, Strouth suffered chronic knee, neck, and back pain. He met Garner through a Marine friend. Strouth believed that, as a Marine who had been with the First Recon Battalion, Garner had received special training in clandestine operations and gathering intelligence, as well as hand-to-hand combat.

At trial Strouth testified that he had been struggling, drinking too much and having difficulty sleeping because of nightmares. He made an appointment to see someone at the Veteran's Administration (VA) in April 2015, but he did not attend the appointment. He gave his gun to a neighbor because he did not think he needed it to protect himself, but he was concerned he might turn the gun on himself.

Strouth also testified about the events that took place in the garage. He said Garner was sitting in a chair in the center of the garage. About ten minutes after Strouth had entered the garage area, as Strouth passed by Garner, Garner made a loud exhaling sound, drawn out over three or four seconds. This prompted Strouth to look up and see that Garner was holding a sheathed Ka-Bar knife in his lap. Strouth noticed that Garner was staring at him in a "weird gaze that seemed strange" in addition to heavily breathing. Then Strouth heard a loud bang or collision, a crashing sound coming from Garner's direction. Garner grabbed Strouth by the throat with the hand that was not holding the knife, sending Strouth stumbling backward.

Strouth testified that he tried to get Garner's hand away from his throat. He believed he was under attack and felt afraid. He said he heard the snapping sound of the knife being unsheathed, and at that point, he thought the knife was coming out, but Strouth was able to get the knife from Garner and thrust it into Garner. When Garner rushed him again, Strouth thrusted the knife into Garner's chest area. Strouth said he stabbed Garner more than once because Garner continued to press forward, and he was 60 or 70 pounds heavier than Strouth.

Strouth testified that he felt disoriented, like he was spinning. He crouched down to Garner and discovered Garner was dead. He was concerned for his physical safety when he fought Garner, but he did not know why Garner would become physically aggressive. He began cutting himself because he was distraught over having just killed his friend and he wanted to kill himself.

Strouth explained his memories of the event came and went, and that he had no memory of talking about devil voices or of saying hell fell. He said he became aware of his surroundings when the police were on top of him.


Expert Testimony

The prosecution and defense each offered expert testimony from mental health professionals. The experts agreed that Strouth suffered from PTSD and depression.

Dr. Cynthia Boyd, the neuropsychologist who testified on Strouth's behalf, explained hallmark symptoms of PTSD include hypervigilance, being easily startled, nightmares, and irritability. She also explained that many people with severe PTSD present with some psychotic symptoms, which includes hearing voices while in an amped up state; psychotic breaks would not be unusual. A psychotic break occurs when, for a period of time, which can be very brief, a person is not in touch with reality, may feel detached from him or herself, and may have altered beliefs. She explained that many people who have psychotic breaks have hallucinations or delusions as part of it, which means they may be seeing or hearing things that are not actually happening. Auditory and visual hallucinations happen in rare instances when a person has a psychotic break.

Dr. Boyd testified that Strouth exhibited hypervigilance, experienced startled responses, cowered at the sound of helicopters, and suffered from nightmares and disrupted sleep. She explained that if a person with PTSD were to be in a violent encounter in which he believed he was fighting for his life, it could cause him to appear disoriented after the event. Dr. Boyd opined that Strouth's PTSD symptoms came and went and that he was suffering from PTSD the night he killed Garner. She did not believe he suffered from hallucinations, and she testified that Strouth did not talk to her about hearing voices, so she could only gather information about that from written reports, which included the information that Strouth said he was dealing with devil voices that he could not see, and voices were telling him to kill himself.

Dr. David Naimark, the psychiatrist who testified for the People, described Strouth as initially "semi out of touch with reality," mostly driven by depression. Dr. Naimark also concluded Strouth had a complicated mental state that included an adjustment disorder and an unspecified personality disorder in addition to PTSD and depression. Although he testified that Strouth did not seem psychotic when interviewed, Dr. Naimark also said he thought there was some evidence that Strouth may have been psychotic at the time he killed Garner or that he may have been at least partially out of touch with reality. However, Dr. Naimark believed Strouth's actions were likely the result of a combination of factors and not a single mental health diagnosis.


Motions Related to Evidence of Mental Disease, Defect, or Disorder

Before trial, the prosecution filed a motion to exclude or limit evidence of mental disorder. During the hearing, the court noted that testimony could be offered regarding Strouth's mental state beyond the issue of premeditation and deliberation "[b]ecause if there were some objective circumstances, the defendant could interpret it as a threat given whatever his condition was at the time." Uncertain about what the evidence would show, the court explained that if the testimony were limited to the issues of premeditation and deliberation, it would advise the jury of that using CALCRIM No. 627, the instruction regarding the effect of hallucination on premeditation and deliberation. However, if the evidence were properly offered for imperfect self-defense, the court would offer CALCRIM No. 571.

The court denied the motion to exclude or limit mental health evidence. The court discussed People v. Elmore (2014) 59 Cal.4th 121, 129 (Elmore), noting that mental health issues were not precluded from being introduced in an imperfect self-defense case because, while the Supreme Court had concluded the defendant in Elmore hallucinated, there could be circumstances in which a defendant has a mental health condition that placed the defendant in a state in which he "simply misinterpreted the circumstances."

Following the presentation of the cases, the court revisited the issue of whether evidence of Strouth's mental condition could be used to support a reduced charge of voluntary manslaughter through imperfect self-defense. The court decided to give the jury instructions for the lesser homicide offense, as requested by the defense. The court reviewed the proposed instructions, including CALCRIM No. 627, which addressed the impact of hallucinations on imperfect self-defense, and it asked if there were objections. Neither party objected to the substance of the instructions.3


Jury Instructions

The court instructed the jury on imperfect self-defense: "The defendant acted [in] imperfect self-defense if, one, the defendant actually believed that he was in imminent danger of being killed or suffering great bodily injury; two, the defendant actually believed the immediate use of deadly force was necessary to defend against danger; but three, at least one of those beliefs was unreasonable. [¶] . . . [¶] In evaluating the defendant's beliefs, consider all the circumstances as they were now and appeared to the defendant."

The court further instructed: "Imperfect self-defense does not [apply] when the defendant's perception of facts that he is in imminent danger of being killed or suffering bodily injury is the product of a hallucination. Referencing you to CALCRIM 627." Later, the court gave the instruction from CALCRIM No. 627: "A hallucination is a perception not based on objective reality. In other words, a person has a hallucination when that person believes that he or she is seeing or hearing or otherwise perceive something that is not actually present or happening. [¶] You may consider evidence of hallucinations, if any, deciding whether the defendant acted with deliberation and premeditation."

The court also said, "You've heard evidence that the defendant may have suffered from a mental disease or defect or disorder. You may consider this evidence 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."

The written jury instructions for imperfect self-defense included the following statement: "Imperfect self-defense does not apply when the defendant's perception of facts that he is in imminent danger of being killed or suffering bodily injury is the product of a hallucination. (see CALCRIM 627)."

The jury found Strouth guilty of murder in the second degree (§ 187, subd. (a)) and found he personally used a deadly and dangerous weapon (§ 12022, subd. (b)(1)). Strouth timely appealed.



Strouth argues the court had a sua sponte duty to instruct the jury on the lesser included offense of voluntary manslaughter in imperfect self-defense and those instructions, as given, erroneously prevented the jury from considering whether Strouth stabbed the victim based on a partial delusion rather than a pure delusion. He further contends the error was prejudicial. We disagree and affirm.


Legal Principles

"A killing committed because of an unreasonable belief in the need for self-defense is voluntary manslaughter, not murder." (Elmore, supra, 59 Cal.4th at p. 129.) There is no malice when there is unreasonable, or imperfect, self-defense because the actual belief that lethal action is necessary to avoid death or serious injury cannot coexist with a culpable mental state. (Id. at pp. 129-130, quoting People v. Beltran (2013) 56 Cal.4th 935, 951.) However, imperfect self-defense requires a mistake of fact, and a purely delusional belief of the need for self-defense may only be raised as an insanity defense, available in a separate phase of trial. (Elmore, at p. 130.)

Because imperfect self-defense is premised on a mistake of fact, "it cannot be founded on delusion." (People v. Mejia-Lenares (2006) 135 Cal.App.4th 1437, 1453-1454.) "[A] mistake of fact is predicated upon a negligent perception of facts, not, as in the case of a delusion, a perception of facts not grounded in reality. A person acting under a delusion is not negligently interpreting actual facts; instead, he or she is out of touch with reality." (Elmore, supra, 59 Cal.4th at p. 136.) Thus, imperfect self-defense is inapplicable when the defendant's actions are entirely delusional. (Id. at pp. 136-137.)

The Supreme Court has distinguished the individual who makes a factual mistake because he misperceived the objective circumstances from a delusional defendant, who "holds a belief that is divorced from the circumstances." (Elmore, supra, 59 Cal.4th at p. 137.) It explained: "A person who sees a stick and thinks it is a snake is mistaken, but that misinterpretation is not delusional. One who sees a snake where there is nothing snakelike, however, is deluded. Unreasonable self-defense was never intended to encompass reactions to threats that exist only in the defendant's mind." (Ibid.) The court explained that because the defendant's motivation must derive from objective facts and not delusions, "purely delusional perceptions of threats to personal safety cannot be relied upon to claim unreasonable self-defense." (Id. at pp. 138-139.) Instead, an imperfect self-defense claim based only on a delusion is essentially a claim of insanity. (Id. at p. 140.) Thus, "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. [Citations.] It may not be employed to reduce a defendant's degree of guilt." (Id. at p. 145.)

"In sum, 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." (Elmore, supra, 59 Cal.4th at p. 146.) Thus, "[a]t a trial on the question of guilt, the defendant may not claim unreasonable self-defense based on insane delusion." (Id. at p. 130.)



Strouth contends the court erred by failing to sua sponte provide additional information about partial delusions or hallucinations as a basis for reducing a charge to voluntary manslaughter due to imperfect self-defense. He argues that the court incorrectly stated the law in the jury instructions and that the court improperly failed to instruct on a lesser-included offense. We disagree.

We review de novo whether jury instructions correctly state the law and whether they improperly direct a finding adverse to a defendant by removing an issue from the jury's consideration. (People v. Posey (2004) 32 Cal.4th 193, 218 (Posey).)

Strouth acknowledges that he failed to object to the jury instructions at the time of trial but contends that because the instructions incorrectly state the law and affect a substantial right, no objection was required. The court had no sua sponte duty to provide the type of instruction Strouth now seeks, and, as we explain post, the jury instructions correctly state the law.

"[I]nstructions on the effect of a defendant's mental disease or disorder on his or her mental state need not be given sua sponte; rather, they are `in the nature of pinpoint instructions required to be given only on request where the evidence supports the defense theory.'" (People v. McCarrick (2016) 6 Cal.App.5th 227, 243 (McCarrick).) A court's duty to instruct does not extend to pinpoint instructions regarding the legal effect of mental health evidence. (People v. Ervin (2000) 22 Cal.4th 48, 91; People v. Ocegueda (2016) 247 Cal.App.4th 1393, 1406 (Ocegueda).) A "`party may not argue on appeal that an instruction correct in law was too general or incomplete, and thus needed clarification, without first requesting such clarification at trial.'" (People v. Livingston (2012) 53 Cal.4th 1145, 1165, quoting People v. Hillhouse (2002) 27 Cal.4th 469, 503.)

Here, Strouth did not ask the trial court to modify CALCRIM Nos. 521 or 627, even when the court asked if the parties had any objections. Strouth's failure to request a pinpoint instruction that distinguished pure delusion from partial delusion or explained how delusion evidence, if any, might be considered by a jury forfeits the argument that the court's failure to do so was erroneous. (See, e.g., McCarrick, supra, 6 Cal.App.5th at pp. 242-243.) Moreover, because the court's careful application of the reasoning in Elmore resulted in jury instructions that correctly reflect the law, Strouth suffered no prejudice.


Jury Instructions

We review the correctness of jury instructions de novo. (Posey, supra, 32 Cal. 4th at p. 218; Ocegueda, supra, 247 Cal.App.4th at p. 1406.) This includes a consideration of whether instructions improperly remove an issue from the jury's consideration. (Posey, at p. 218.)

Strouth contends there is nothing in the record that "would support a finding of a mental illness based on pure delusion." He also implies that because both experts testified that Strouth suffered from PTSD and depression, his act of killing his friend was the product of a combination of factors, not of a delusion.

Strouth's argument relies on his interpretation that his misperceptions were not attributable to pure delusions but instead involved misperceptions based on "objective correlates accompanied by delusions." However, there is evidence in the record that calls into question whether Strouth was reacting to hallucinations at the time of the incident. Gandarillas testified that she heard a loud crash, then heard Garner curse, followed by Garner's shaky breathing sound. This series of events could imply that the loud noise was part of the struggle between the two men, not a precipitating event triggering Strouth's PTSD or other mental disorder. Moreover, Gandarillas testified that after Strouth killed Garner, he commented proudly that Garner was the devil, but the devil had fallen, he had slayed the beast, and hell fell, evidence that he was reacting to a hallucination or delusion.4 Even though Strouth had no memory of talking about devil voices or saying hell fell, he admitted his memories of the event came and went, and he only became aware of his surroundings after he killed Garner and the police were on top of him.

Additionally, Chaney testified that Strouth had been talking about killing the beast or the devil in the weeks before Strouth stabbed Garner. Defense expert Dr. Boyd testified that Strouth may have experienced a psychotic break, which could include delusions or hallucinations, consistent with Gandarillas's testimony. Thus, there was evidence from which a jury could conclude that Strouth killed Garner as the result of a mistaken, but purely delusional, belief.

Strouth contends that the inclusion of the instruction prohibiting the jury from considering hallucination evidence was an implied finding that the evidence presented at trial involved pure delusion, rather than a recognition that Strouth could have experienced a partial delusion. We disagree.

The court's instruction directed the jury to consider all the circumstances at the time of the crime. Whether Strouth was acting in response to a hallucination, responding to a mistakenly perceived threat grounded in objective reality, or reacting to a combination of the two, was an issue of fact to be decided by the jury, and the jury instructions allowed for this consideration. The instructions properly tracked the requirements set forth in Elmore, limiting the application of imperfect self-defense if Strouth's perception of the events was the product of pure hallucination rather than grounded in objective reality. (See Elmore, supra, 59 Cal.4th at pp. 136-137.)


The judgment is affirmed.

AARON, J. and GUERRERO, J., concurs.


1. Further section references are to the Penal Code.
2. Schafer explained a Ka-Bar knife is a knife with a long blade.
3. Defense counsel offered two suggested edits of typos; neither was related to CALCRIM No. 627.
4. Dr. Naimark testified that a hallucination is distinguishable from a voice in one's head; a hallucination by definition is a voice that comes from outside, not inside.


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