PEOPLE v. BRAMLAGE

THE PEOPLE, Plaintiff and Respondent,
v.
CHASE BRAMLAGE, Defendant and Appellant.

No. B216782.

Court of Appeals of California, Second District, Division Three.

Filed June 22, 2010.

John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

Defendant and appellant, Chase Bramlage, appeals the judgment entered following his conviction, by jury trial, for second degree murder with a knife use enhancement (Pen. Code, §§ 187, 12022, subd. (b)(1)).^{[ 1 ]} He was sentenced to state prison for a term of 16 years to life.

The judgment is affirmed.

BACKGROUND

Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established the following.

1. Guilt Phase.

a. Prosecution Evidence.

Fukuko Kusakari was born in Japan in 1980. She came to the United States to study film and she attended Santa Monica College. She met defendant Bramlage and they were married in 2004.

William Norell and Bramlage took an acting class together at Santa Monica College starting in September 2005.^{[ 2 ]} Courtney Shane met Bramlage at the college and they became friends. Shane, Norell, Jonathan Deroko and Bramlage were in the cast of a play which began rehearsals in October. Bunny Saavedra Leslie was the stage manager for the play.

Bramlage told Shane he lived with his girlfriend and "they were struggling in their relationship." On three or four occasions Bramlage said, "I'm not sure if men and women can live together." He never acknowledged being married.

In September or October, Bramlage told Norell he was married, but that he was having some problems and wanted to end it. In November, Bramlage told Norell he was involved with another cast member, Rachel Stiller. Bramlage was excited because he felt this new "relationship was really real and going somewhere."

Bramlage told Deroko, "I have a girlfriend but we're having problems." He also said he considered Stiller to be one of the cute girls in the cast. In a subsequent conversation, Bramlage said he and Stiller had "gone out a couple times and that it went pretty well."

On the night of November 30, Bramlage told Shane he and his girlfriend had "broken up" and were now sleeping in different rooms: "One was sleeping in the bedroom and one was sleeping on the sofa and . . . they were switching off." Bramlage "said he was frustrated because he pays 100 percent of the rent and they've broken up, and he wanted her to move out and she wouldn't move out." He was also "frustrated with the fact that there was no more sex." When they did have sex, "she just lies there." Bramlage described his girlfriend as "helpless" and "lazy."

Jonathan Thomsen and Hugh Ragan lived together on the third floor of an apartment building in West Hollywood. On December 1, sometime between 6:30 and 7:15 a.m., they heard a woman scream. Ragan described the screaming as "very loud and prolonged." It came from a second floor apartment which was across a small courtyard. Thomsen got dressed and went to investigate. By the time he got to the other apartment the screaming had stopped. He knocked on the door and at first there was no response. He knocked again after a minute or two, and then a man's voice said, "Just a minute."

Two minutes later, Bramlage opened the apartment door very slightly, "just enough for [him] to look around the door." Thomsen could only see the top of Bramlage's head, his left shoulder, a portion of his left arm, and the left side of his chest. He could not see Bramlage's hands. Thomsen said he was concerned about the screaming coming from the apartment. Bramlage replied "his girlfriend was having night terrors" and he apologized. Thomsen had not said anything about hearing a woman scream. When Thomsen told Bramlage he had called the police because he was so concerned, Bramlage looked startled. He apologized again and shut the door. In fact, Thomsen had not called the police. He returned to his own apartment and called building security to report the disturbance.

Thomsen had been employed as a registered nurse for 24 years. During that time, he had worked at psychiatric hospitals for 14 or 15 years, and he had had experience dealing with mental patients suffering from bipolar disorder. Thomsen testified Bramlage did not appear to have any mental disability. He saw no sign that Bramlage was experiencing either the manic or the depressed phase of a bipolar disorder.

Larisa Novikova, who lived in the apartment directly below Bramlage and Fukuko, testified she was awakened at 7:00 or 7:15 a.m. on December 1 by "a loud, terrible screaming of a woman's voice." She looked out her front door and then went to her balcony, but she didn't see anything and the screaming stopped. A little later, Novikova saw a man jump from the balcony above hers to the ground. The man landed on his feet, pulled his pants up, and then ran off. The man did not fall down when he hit the ground.

Meanwhile, Ragan heard a loud crashing sound and went to his balcony. He saw someone in a black sweatshirt. The person "put something in their pocket, kind of ruffled up their clothes, and ran off." Ragan noticed Novikova was watching the same person.

Shortly after these events, Bramlage made a series of telephone calls. At 7:41 a.m., he called his brother Drew. He then called his mother, Carol Walstatter, at 7:43, 8:00, and 8:01 a.m. At 8:02 a.m., Walstatter called him back. At 8:05 a.m., Bramlage called Saavedra and said he would not be attending the play's opening night because he was going to jail. He had done something "ready bad," and he would probably have to move and change his name. He also said "he had to take responsibility for what he did."

At 8:27 a.m., Bramlage called his therapist, Dr. Jan Tucker. At 8:28 a.m., he called the First National Bank in Junction City, Kansas. This bank usually wired $4,000 a month directly to Bramlage's Los Angeles bank account from his trust fund. He cancelled all future wire transfers. That same morning, a debit or ATM card linked to Bramlage's bank account was used to buy gas, withdraw $300 from an ATM machine, have a car washed, and buy a cell phone charger.

On the morning of December 2, Bramlage turned himself in to the Los Angeles County Sheriff's Office in West Hollywood. He was very upset and crying. There were bloodstains on his shoes, jeans and boxer shorts. Subsequent DNA testing showed Fukuko had been the major contributor to the DNA in this blood.

Police searched Bramlage's apartment. The bedroom door was damaged along its edge and the door latch was missing. The latching mechanism was found lying on the bedroom floor. Fukuko's naked body was lying face up on the bedroom floor, in a pool of blood. There was a black plastic trash bag around her neck. Another plastic trash bag was on the floor near her right foot. Both bags were bloodstained. There was a bloody knife near her feet.

There was an open suitcase on the floor. Another black plastic trash bag had been used to "line[ ] the bottom of the suitcase." There was blood on the interior edge of the suitcase near the zipper. There was blood all over the bathroom. A shoeprint in the blood had been made by the shoe Bramlage was wearing when he walked into the Sheriff's station.

There were four empty prescription pill bottles in the kitchen cupboard. There was a prescription for Lamictal which had been filled on November 29. This prescription bottle contained 55½ pills of the original 60. Bramlage's wallet, keys and cell phone were not in the apartment.

The autopsy showed Fukuko had sustained 15 stab wounds to the central and left sides of her upper torso and abdominal area. There were seven stab wounds in her back. She had defensive wounds on the palm of her right hand, consistent with her having tried to grab the knife. She had died within minutes of the stabbing and there were no postmortem wounds.

b. Defense Evidence.

Bramlage was born in Kansas in 1979. As a child, he struggled to make friends and had trouble concentrating in school. He suffered from night terrors and spent most of his time alone. His mother, Carol Walstatter, wanted to get help for him, but his father, who had mental problems of his own, refused to take Bramlage for psychological counseling. When Bramlage was 10, his father, who was addicted to crack cocaine, was murdered.

Shortly thereafter, Bramlage was diagnosed with depression. Later, in the fourth grade, he was diagnosed with bipolar disorder and treated with lithium. He made the honor roll in middle school.

In the eighth grade, Bramlage began hitting himself. He was prescribed Ritalin for possible Attention Deficit Disorder ("ADD"). He became more agitated and withdrawn. He started "rapid cycling" between manic and depressed states. A psychiatrist recommended hospitalization and, at age 15, Bramlage spent six days in a mental hospital. He was taken off Ritalin, and given lithium and Depakote. He was able to finish high school after being hospitalized, but he had little social interaction. Bramlage's wealthy grandparents created a trust fund for him at the First National Bank in Kansas. Bramlage went to art school, earned a two-year associate degree, and moved to Los Angeles to attend film school.

Bramlage told his mother he had met a foreign student who was moving in with him. Walstatter and her husband met Fukuko in Los Angeles. Fukuko and Bramlage visited Walstatter in Michigan and Kansas City numerous times, and Fukuko was accepted as a member of the family.

Dr. Jan Tucker, a clinical psychologist, treated Bramlage from January to August, 2004. Bramlage suffered from bipolar disorder which, in response to internal stimuli, caused mood swings from very deep depression to mania. His bipolar disorder also had psychotic features. While in a psychotic state, people have trouble perceiving reality and remembering events. Bramlage began treatment with Tucker because he felt his medication was not working and this was affecting his relationship with Fukuko. Bramlage sometimes brought Fukuko along so she could describe his symptoms and learn about his illness. Although Bramlage's anger was usually directed at himself, he could also be emotionally, but not physically, abusive toward Fukuko. Bramlage denied hearing voices.

While continuing to treat Bramlage, Tucker referred him to a psychiatrist, Dr. Adib Bitar, in February 2004. Bramlage wanted to control his mania and said his medication was not working. Bitar diagnosed rapid cycling bipolar disorder, for which he prescribed Lamictal, in addition to the lithium Bramlage was already taking. By November 2004, Bitar took Bramlage off the lithium and prescribed only Lamictal. On April 18, 2005, Bitar saw Bramlage for the last time. Bramlage said he was suspicious of his girlfriend, had quit work, and was going back to school full time. He was symptomatic despite taking 300 milligrams of Lamictal a day. He never reported having hallucinations. Bitar approved Lamictal prescriptions on June 24, September 28, October 31, and November 29. Bramlage had an appointment scheduled for December 8.

Rachel Stiller testified she met Bramlage in the fall of 2005 while rehearsing a play at Santa Monica College. Bramlage said a long-term relationship with his girlfriend had ended recently and that he did not live with her anymore. Stiller and Bramlage went out to dinner in early November. During the meal, Bramlage got a phone call and said it was from his ex-girlfriend. He said she was "very needy and clingy." Stiller and Bramlage "made out" at end of their date. Stiller was living in cooperative housing on UCLA's fraternity row. Bramlage thought the building looked dumpy, and he told her she could move in with him when she was ready.

Bramlage and Stiller went on a second date, during which he again got a phone call from his ex-girlfriend. At the end of the date, they kissed. Bramlage told Stiller his ex-girlfriend was not "as passionate" as she was. Bramlage wanted to have sex, but Stiller said no.

After their second date, Stiller decided not to go out with him anymore and she told him she just wanted to be friends. Bramlage acted like he hadn't heard her and he kept calling. Bramlage never told her he was married.

On December 1, Bramlage called Walstatter at her home in Grand Rapids, Michigan. He was hard to understand because he was hyperventilating and crying. Finally he said, "I really did it, mom, this time," "I hurt Fukuko," "I stabbed her." Walstatter contacted a law firm in Los Angeles, which arranged to have Bramlage turn himself in on December 2. Walstatter flew out to California. She first discovered Bramlage and Fukuko had been married when he was arraigned on January 4, 2006.

Dr. Samuel Miles, a forensic psychiatrist, interviewed Bramlage after Fukuko died. Bramlage said he had been having auditory and visual hallucinations, and that the voices were telling him to do things. In the days before Fukuko died, the voices said "There is a change coming. You're going to have a change. You deserve it," and "Do it." Bramlage said he had trouble sleeping the night before the killing, that he was excited and agitated about the opening of the play. Around 3:00 a.m. he woke up, felt he was becoming more manic, and "took a bunch of Lamictal," which he had not been taking for a while. At 5:00 a.m., he took his regular morning dose of Lamictal. He was pacing around the apartment, struggling with the hallucinations. The voices told him to stab Fukuko. Bramlage hit himself to try to get the voices to stop. He looked at Fukuko in the bedroom and heard a voice saying, "Let me do this. It's my turn." Bramlage returned to the kitchen and then blacked out.

Bramlage told Dr. Miles the next thing he remembered was being on top of Fukuko and trying to choke her:

"Q. He said he was trying to choke her?

"A. Yes. He could see it but couldn't hear anything and didn't realize he had a knife [in] his hand. He wrestled her to the floor. One voice said, `Yes.' Another said, `Stop.' There was a knife inside her. He pulled back and she was bleeding. [¶] He tried to put clothes on her to stop the bleeding He tried to breathe into her mouth. He pumped on her chest. More blood came out. She was dying. He had blood on his hands. He realized he had done this, and he was horrified.

"Q. Okay. What did he tell you happened next?

"A. There was a knock on the door. He went to answer it. He looked at his hands. He went to the bathroom and washed them. He put his shirt on. He didn't accept what was happening. [¶] The man at the door said that the police were coming; that they had heard screams. He told the guy that she had had night terrors. He went back to the bedroom and thought maybe she was asleep.

"Q. Did he tell you that at this point after he went to the door that he understood what had happened?

"A. No. He came back and he thought maybe she was asleep, maybe it was a dream. And then he went back to go look in the bedroom and she was there . . . . [¶] He paced in the living room. He thought his life was over. He went to the balcony and jumped off.

"Q. What was the point of jumping off the balcony?

"A. He was trying to end it.

"Q. Did he tell you what happened after he jumped off the balcony?

"A. He lay on the ground for a while and then got up. He went into a garage, got in his car and drove down the street and stopped in a parking lot and called his mother."

Dr. Miles testified Bramlage suffered from rapid cycling bipolar disorder with psychosis, and opined he had been psychotic when he killed Fukuko. Miles also believed Bramlage had overdosed on Lamictal at the time of the killing, which could lead to a disconnection of normal mental functioning as it related to thought, reasoning, feeling, memory and planning. A Lamictal overdose could cause psychosis, particularly in someone suffering bipolar disorder with psychotic features. Miles opined Bramlage was in a dissociative state when he killed Fukuko.

Dr. Arthur Kowell, a neurologist, evaluated Bramlage and found no brain damage. Kowell saw no evidence of malingering. Bramlage reported having experienced ten blackouts over a three-month period prior to the day he killed Fukuko. He "described these as episodes in which the vision in both eyes would become black for one to two seconds, usually when he was manic." Kowell said such blackouts can be a symptom of a dissociative state and are consistent with a bipolar disorder. Bramlage also mentioned having hallucinations and rapid mood cycling prior to the killing.

Bramlage gave Kowell an account of the killing which differed somewhat from the one he gave Dr. Miles. Bramlage did not mention taking Lamictal, nor could he recall the actual killing. He remembered being in the kitchen and "knocking over a woode[n] block with knives in it. He grasped a big knife and held the knife to his throat. Voices told him to do something. [¶] He then went into the bedroom holding the knife, and he recalled the decedent being in bed asleep at that time." He later noticed there was blood on his hands.

Kowell opined Bramlage's "behavior and the symptoms that he reported to me . . . would be consistent with his primary disorder: bipolar disorder including psychosis . . . . [¶] He may also, as has been related to me, have taken an excessive amount of Lamictal which could have also resulted in psychotic behavior, confusion. Certainly not normal thinking." A person in a psychotic state could have impaired cognitive functioning, which would affect judgment, memory and emotional behavior.

c. The Verdict.

The jury acquitted Bramlage of first degree murder, but convicted him of second degree murder.

2. Sanity Phase.

a. Defense Evidence.

Dr. Richard Dudley, a psychiatrist, evaluated Bramlage and diagnosed pediatric onset bipolar disorder with psychotic features, and borderline personality disorder. Pediatric onset bipolar disorder is a worse condition than adult onset. A patient experiencing rapid cycling between manic and depressive states within 24 hours, without extended periods of normalcy, is more resistant to medication. A borderline personality disorder is the most severe personality disorder, "an instability across all the important areas of functioning." Having both bipolar and borderline personality disorders makes each condition more difficult to manage. The available medication is not completely effective.

Bramlage told Dr. Dudley he began having auditory hallucinations in his early twenties, primarily during manic episodes. He started seeing Dr. Tucker because he wanted to work on anger issues; he was worried about having thoughts of hitting Fukuko. He began blacking out; he would find himself somewhere, such as Santa Barbara, without knowing what he was doing or how he had gotten there.

Bramlage said he had been deteriorating in the weeks leading up to the killing. On November 30, "he was rapid cycling throughout the day from depressive episodes to manic episodes." The voices in his head were particularly commanding, "screaming at him so much that he spent part of the day just crying." Then he blacked out. He awoke at 4:00 a.m. because he thought he heard something out in the living room. He took some Lamictal pills, he didn't know how many, and blacked out again. The next thing he remembered was lying on the living room floor in his boxer shorts, hearing a knock on the apartment door. After talking to the neighbor, he went into the bedroom, saw Fukuko on the floor and noticed the blood. He was trying to figure out what happened. He felt suicidal. The voices were still screaming at him. He went to the living room and started screaming. He blacked out again. He next recalled being in the alley behind his apartment, picking his keys up off the ground. He figured he must have jumped from his balcony.

Dudley opined Fukuko's death was the result of Bramlage's mental illness. He believed Bramlage was not malingering, that he did not understand the nature and quality of what he was doing when he killed Fukuko, and that he was therefore legally insane at the time.

On cross-examination, Dudley testified Bramlage said that when he was a teenager he had been committed to a mental hospital for a couple of months. Dudley acknowledged the medical records of that commitment showed Bramlage had only been in the hospital for six days. Bramlage reported he had never told his doctors about hearing voices. Bramlage did not say anything to Dudley about choking Fukuko, pulling a knife out of her body, or doing anything with plastic trash bags.

Dr. Miles, who testified at the guilt phase, also evaluated Bramlage to determine his legal sanity. He opined there was a "good probability" Bramlage did not understand the nature and quality of his acts at the time he killed Fukuko. However, he could not say "for sure" because Bramlage "wasn't able to tell me or didn't tell me about memory [sic] of the specific acts." Bramlage's inability to relate what happened was consistent with a psychotic state. On cross-examination, Miles acknowledged his opinion was based on the assumption Bramlage had been honest with him.

Dr. Kowell, the neurologist who had testified at the guilt phase, testified Bramlage was psychotic at the time he killed Fukuko, and that he did not understand the nature and quality of his act.

b. Prosecution Evidence.

Dr. Kaushal Sharma, a forensic psychiatrist, examined Bramlage for the prosecution. Sharma concluded Bramlage was suffering from a mental illness on the day of the killing, and that the mental illness was bipolar disorder. However, Sharma believed Bramlage understood the nature and quality of his acts, and knew right from wrong, at the time he killed Fukuko.

Even giving Bramlage the benefit of the doubt, i.e., assuming he did hear voices even though he'd never reported such a symptom to any of his doctors before the killing, Sharma testified he did not find any evidence of psychosis. Bramlage had been experiencing two possible symptoms of his mental illness at the time of the killing: irritability and auditory hallucinations. However, Bramlage was not delusional. He knew Fukuko was his wife and the voice he claimed to have heard did not command him to stab her. When Thomsen knocked on the door and spoke to him, Bramlage did not exhibit any bizarre behavior. He had the presence of mind to get dressed, wash his hands, and then lie to Thomsen in the middle of committing the crime.

Sharma did not find any evidence Bramlage was a rapid cycler, and he strenuously disagreed that taking 675 milligrams of Lamictal could result in a psychotic state. Sharma did not believe Bramlage was trying to kill himself when he jumped off the balcony. To the extent Bramlage had given different accounts about when he blacked out the day of the killing, Sharma opined Bramlage either never blacked out or he was lying about the time.

c. Defendant's Rebuttal Evidence.

Dr. Thor Reyes was a psychiatrist at the Twin Towers Jail acute psychiatric unit. Bramlage was involuntarily committed to the unit on December 2, the day of his arrest. He was extremely agitated and in a manic phase at the time he was admitted. Reyes calmed Bramlage down by giving him Haldol, a very potent anti-psychotic drug, and Ativan, an anti-anxiety drug. He was placed on suicide watch. Reyes diagnosed Bramlage as having bipolar disorder with psychotic features. The average stay in the psychiatric unit is 5 to 12 days, but Bramlage was in the unit for a month.

d. The Verdict.

The jury found Bramlage had been sane at the time of the murder.

CONTENTIONS

1. There was Batson/Wheeler error.

2. The prosecutor committed misconduct during closing argument in the sanity phase.

DISCUSSION

1. There was no Batson/Wheeler Error.

Bramlage contends the trial court erred when it ruled he had failed to make out a prima facie case of discrimination regarding the prosecutor's peremptory challenges to female prospective jurors. This claim is meritless.

a. Legal Principles.

"A party [commits error under Batson v. Kentucky (1986) 476 U.S. 79 [106 S.Ct. 1712], and People v. Wheeler (1978) 22 Cal.3d 258, by using] peremptory challenges to remove prospective jurors solely on the basis of group bias. Group bias is a presumption that jurors are biased merely because they are members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds." (People v. Fuentes (1991) 54 Cal.3d 707, 713.)

"The United States Supreme Court recently reiterated the applicable legal standards. `First, the defendant must make out a prima facie case "by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose." [Citations.] Second, once the defendant has made out a prima facie case, the "burden shifts to the State to explain adequately the [apparently discriminatory] exclusion" by offering permissible . . . justifications for the strikes. [Citations.] Third, "[i]f a [non-discriminatory] explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful . . . discrimination."' [Citations.] [¶] In order to make a prima facie showing, `a litigant must raise the issue in a timely fashion, make as complete a record as feasible, [and] establish that the persons excluded are members of a cognizable class.' [Citation.]" (People v. Gray (2005) 37 Cal.4th 168, 186.)

The analysis begins with the presumption a party exercising a peremptory challenge is doing so on a constitutionally permissible ground. (People v. Wheeler, supra, 22 Cal.3d at p. 278.) "[T]he law recognizes that a peremptory challenge may be predicated on a broad spectrum of evidence suggestive of juror partiality. The evidence may range from the obviously serious to the apparently trivial, from the virtually certain to the highly speculative. [¶] For example, a prosecutor may fear bias . . . because [a juror's] clothes or hair length suggest an unconventional lifestyle." (Id. at p. 275.)

A trial court's ruling on a Wheeler motion is reviewed for substantial evidence. (People v. Alvarez (1996) 14 Cal.4th 155, 196.) "The determination of whether a defendant has established a prima facie case `is largely within the province of the trial court whose decision is subject only to limited review. [Citations.]' [Citation.] On appeal, we examine the entire record of voir dire for evidence to support the trial court's ruling. [Citation.] Because of the trial judge's knowledge of local conditions and local prosecutors, powers of observation, understanding of trial techniques, and judicial experience, we must give `considerable deference' to the determination that the appellant failed to establish a prima facie case of improper exclusion. [Citation.]" (People v. Wimberly (1992) 5 Cal.App.4th 773, 782.) "Because Wheeler motions call upon trial judges' personal observation, we view their rulings with `considerable deference' on appeal. [Citations.] If the record `suggests grounds upon which the prosecutor might reasonably have challenged' the jurors in question, we affirm. [Citation.]" (People v. Howard (1992) 1 Cal.4th 1132, 1155.)

b. Discussion.

Bramlage asserts there was Batson/Wheeler error because the prosecutor used 11 of 14 peremptory challenges to excuse female prospective jurors. However, we conclude Bramlage failed to make the requisite prima facie showing of Batson/Wheeler error because the record suggests non-discriminatory grounds upon which the prosecutor might have reasonably challenged these jurors.

(1) The Disputed Challenges.

The Attorney General points out the first of the 11 disputed prospective jurors, Juror 7792, was actually dismissed for cause on Bramlage's motion, not as a result of a peremptory challenge from the prosecution.

Juror 2985 was a licensed clinical social worker who was employed in the mental health field; she had regular contact with psychologists and psychiatrists. Her son had autism.

Juror 9229 said she might not be able to look at gruesome photographs because she gets "emotional when [she sees] that kind of thing." The Attorney General notes Bramlage essentially concedes this was a valid reason for exercising a peremptory challenge against this prospective juror.^{[ 3 ]}

Juror 0188 initially indicated she might have trouble complying with the presumption of innocence, saying she might "think that, well . . . he doesn't have anything to say in his defense." When the trial court asked if she could follow a jury instruction not to hold it against the defendant if he didn't testify, the juror immediately said yes. However, when defense counsel subsequently said Bramlage would not be testifying and asked, "Can you think of a reason why somebody who's a defendant in a criminal case might not want to testify?", the juror did not offer a reason, saying only: "I'm sure there are probably reasons why, yes." Juror 0188 had a friend who had been charged with driving under the influence.

Juror 4810 was a retired clinical child psychologist. She knew one of the defense expert witnesses, Dr. Miles, professionally and she had a "high regard for his work."

The Attorney General describes Juror 3220 as "a long-standing activist about ADD and about her son's learning disabilities." The record bears out this characterization.^{[ 4 ]} Her mother had been assaulted and robbed. After her ex-husband accused Juror 3220 of assault, police officers came to the classroom where she was teaching to arrest her, although they ultimately did not carry out the arrest.

The Attorney General points out it was actually Bramlage who used a peremptory challenge against Juror 0263.

Juror 6623 was a psychology student at a community college. She said she might be inclined to more readily believe the testimony of psychologists or psychiatrists. Her mother had been diagnosed with bipolar disorder, and her aunt had multiple psychological problems. She acknowledged this might affect her jury service: "I mean, I've dealt with my mother and also my aunt. It's really hard emotionally, and so it might [affect me]." Also, because her mother had been violent, hearing the evidence in this case "might be upsetting."

Juror 5609 had a co-worker who had been murdered by her husband; the husband then shot himself. Juror 5609's ex-husband had a girlfriend who has bipolar disorder. This girlfriend had been Juror 5609's co-worker before she was fired because she stopped taking her medication.

Juror 1976 had a brother who had been fired from his job at a prison for using excessive force. She had known someone with a severe mental illness who took medication. The brother of one of her best friends had been murdered.

Juror 3328 said, "Thinking about it overnight, being in judgment of such a serious crime would be hard for me." In his appeal brief, Bramlage acknowledges this was a valid reason for challenging this juror.

(2) No Prima Facie Case Established.

As to the nine prospective jurors actually challenged by the prosecution, Bramlage essentially concedes the peremptory challenges of Jurors 9229 and 3328 were legitimate. (See fn. 4. ante.) As to the remaining seven prospective jurors, "the record `suggests grounds upon which the prosecutor might reasonably have challenged'" them. (People v. Howard, supra, 1 Cal.4th at p. 1155.)

Prospective jurors having even second-hand negative experiences with the criminal justice system are properly subject to peremptory challenge. (People v. Fields (1983) 35 Cal.3d 329, 348 ["persons previously arrested, crime victims, believers in law and order, etc. are not identifiable groups whose representation is essential to a constitutional venire"]; People v. Douglas (1995) 36 Cal.App.4th 1681, 1690 ["use of peremptory challenges to exclude prospective jurors whose relatives and/or family members have had negative experiences with the criminal justice system is not unconstitutional"]; People v. Allen (1989) 212 Cal.App.3d 306, 315-316 [peremptory challenge properly used where close friend of prospective juror had been arrested for selling drugs].) This reasoning applies to Jurors 5609, 0188, 3220 and 1976.

Prospective jurors with certain occupations can reasonably be assumed to be more defense-oriented. (See People v. Young (2005) 34 Cal.4th 1149, 1174 [therapist]; People v. Trevino (1997) 55 Cal.App.4th 396, 411 [providers of health care or social services]; People v. Landry (1996) 49 Cal.App.4th 785, 790-791 [job in youth services agency and background in psychiatry or psychology]; People v. Perez (1996) 48 Cal.App.4th 1310, 1315 [those working in "social services or caregiving fields"].) This reasoning applies to Jurors 2985 and 4810. We think the same reasoning properly applies to Juror 6623, the college student who was training for a job in psychology.

In a case where the only contested issues concerned Bramlage's state of mind, the prosecutor could have been legitimately concerned about prospective jurors who had anything in their backgrounds indicating they might not be entirely neutral when evaluating mental health evidence. (See People v. Mills (2010) 48 Cal.4th 158, 185 [prospective juror's "`her high regard for psychiatrists'" was legitimate reason for peremptory challenge]; People v. Howard, supra, 1 Cal.4th at pp. 1155-1156 [no prima facie case shown where excused prospective juror was nonpracticing registered nurse with sociology degree]; Trawick v. State (Ala.Cr.App. 1995) 698 So.2d 151, 157 [where defendant was raising insanity defense, fact that prospective juror's son had been treated for psychiatric illness was legitimate reason for peremptory challenge].) This reasoning applies to Jurors 6623, 2985, 3220, 5609, 4810 and 1976.

The prosecution is not required to accept at face value a prospective juror's assurance that, despite an answer indicating the contrary, she would have no problem being neutral. In such cases, the juror's apparent uncertainty is a legitimate reason for excusal. (See People v. Taylor (2010) 48 Cal.4th 574, 643, fn. 19) [prosecutor legitimately could have believed prospective juror who worked as nurse would be inclined to credit defense mental health experts, despite her questionnaire statement to the contrary]; People v. Young, supra, 34 Cal.4th at p. 1174 [even though prospective juror who worked as therapist "gave assurances she harbored no biases or opinions that would affect her ability to be open-minded and fair, the prosecutor might have reasonably exercised a challenge to excuse [her] on this basis" because there might be evidence of "extreme mental disturbance" at penalty phase]; People v. Adanandus (2007) 157 Cal.App.4th 496, 505 [no inference of discriminatory purpose where challenged juror "was equivocal about the effect his views on the drug laws might have"].) This reasoning applies to Juror 0188, who initially expressed discomfort with the presumption of innocence, then told the trial court she could follow the rule, but subsequently appeared to manifest equivocation.

Hence, the "record `suggests grounds upon which the prosecutor might reasonably have challenged' the jurors in question." (People v. Howard, supra, 1 Cal.4th at p. 1155.)

Bramlage argues there was prima facie evidence of Batson/Wheeler error because the prosecutor did not challenge male prospective jurors who had characteristics similar to the female jurors who were excused. However, our Supreme Court has said: "`Whatever use comparative juror analysis might have in a third-stage case for determining whether a prosecutor's proffered justifications for [her] strikes are pretextual, it has little or no use where the analysis does not hinge on the prosecution's actual proffered rationales . . . .' [Citation.]" (People v. Taylor, supra, 48 Cal.4th at p. 617.)

Finally, the Attorney General asserts the final jury contained a majority of women, an assertion Bramlage does not contest. The ultimate composition of the jury, as well as the composition of the jury accepted at various points by the prosecutor, are factors to be considered in evaluating a Batson/Wheeler claim. (People v. Carasi (2008) 44 Cal.4th 1263, 1294-1295; People v. Bonilla (2007) 41 Cal.4th 313, 346; People v. Turner (1994) 8 Cal.4th 137, 168, disapproved on another ground in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5; People v. Douglas, supra, 36 Cal.App.4th at p. 1690.)

In sum, we conclude there was no Batson/Wheeler error.

2. There was no Prosecutorial Misconduct.

Bramlage contends the judgment in the sanity phase of his trial must be reversed because the prosecutor engaged in misconduct during closing argument. This claim is meritless.

a. Legal Principles.

(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.'

"Although guilt and sanity are separate issues, the evidence as to each may be overlapping. Thus, at the guilt phase, a defendant may present evidence to show that he or she lacked the mental state required to commit the charged crime. [Citations.] A finding of such mental state does not foreclose a finding of insanity. 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. [Citations.]

"The plea of insanity is thus necessarily one of `confession and avoidance.' [Citation.] `Commission of the overt act is conceded' but punishment is avoided `upon the sole ground that at the time the overt act was committed the defendant was [insane].' [Citation.]

"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.]" (People v. Hernandez (2000) 22 Cal.4th 512, 520-521.)

(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.)

"`"[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.) "To 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." (People v. Frye (1998) 18 Cal.4th 894, 970.)

b. Prosecutor's Comments About what Happens to Bramlage if Jury Finds him Insane.

Bramlage contends the prosecutor committed misconduct during closing argument at the sanity phase by commenting on what would happen to him if the jury found him not guilty by reason of insanity.

(1) Background.

In her initial closing argument, defense counsel said:

"A verdict of not guilty by reason of insanity does not relieve Chase [i.e., Bramlage] of responsibility. The prosecutor told you that in opening, and I have no doubt she will tell you that today. Chase will be punished for what he has done.

"A verdict of not guilty by reason of insanity is a determination of where Chase will be punished: locked up in a state hospital or locked up in state prison for the sentence prescribed by law for murder in the second degree.

"You're going to get an instruction that a verdict of not guilty by reason of insanity does not mean that the defendant will be released from custody. He will be confined by the Department of Mental Health, and he will be placed in locked facilities unless and until it's established that he is not a danger and that less restrictive measures can be used.

"He cannot be removed from placement in the Department of Mental Health unless the court, this court, the committing court determines and finds his sanity has been restored in accordance with the law in California. Or he could be finally released even if his sanity isn't restored when he has served the full sentence prescribed by first degree murder. In essence, you can't keep somebody in a mental hospital longer than you can keep them in prison for the same crime.

"The instruction tells you that you may not speculate. Do not speculate as to if or when Chase Bramlage might be found sane. And the instruction also says it's a violation of your duties as jurors if you find him sane at the time he committed this offense because of some doubt in your mind that the Department of Mental Health or the courts will properly carry out their responsibilities.

"The evidence that you've seen and heard in this courtroom clearly shows that Chase was psychotic, had broken from reality when he killed Fukuko, and he did not . . . understand the nature and quality of his acts. And this, ladies and gentlemen, means that he was legally insane at the time of Fukuko's death.

"We ask you to return a verdict finding him not guilty by reason of insanity."

The prosecutor then began her closing argument, and the first thing she said was in direct response to defense counsel's statement about what could happen to Bramlage if the jury found him not guilty by reason of insanity:

"[The prosecutor]: Actually the instruction that [defense counsel] spoke about at the end, it talks about what would happen to the defendant if he's found insane versus sane. Actually it also talks about another possibility: that the defendant could be put in an outpatient program and that within a year, if another jury finds that he's sane, he'd just go home.

"[Defense counsel]: Objection, Your Honor.

"[The prosecutor]: And ladies and gentlemen —

"[Defense counsel]: Objection.

"The Court: Counsel. Counsel.

"[The prosecutor]: — when she says —

"The Court: Counsel. Counsel, stay away from the argument, please.

"[The prosecutor]: I am. [¶] So when she's getting in front of you about what are possibilities and what could happen to him, that's something you're not supposed to consider because the instruction clearly says that all of those are possibilities. [¶] What happens to the defendant under these laws is not to be considered by you in determining whether the defendant is sane or insane at the time he committed his crime. You're not to discuss or consider the subject of penalty or punishment. So ask yourself why defense counsel brought it up and misstated it.

"[Defense counsel]: Objection, Your Honor.

"[The prosecutor]: Because in this case —

"The Court: The objection's noted and overruled. This is argument, ladies and gentlemen."

(2) Discussion.

Bramlage asserts the prosecutor committed misconduct by telling jurors they would be instructed that he might be sent to an outpatient program, arguing: "There is nothing in [CALJIC No. 4.01] about any `outpatient program.'" Bramlage is wrong.

"When the trial court finds that defendant was insane at the time of the offense, it may commit defendant to a state hospital or certain public or private treatment facilities, or it may order defendant placed on outpatient status pursuant to section 1600 et seq. (§ 1026, subd. (a).)" (People v. Sword (1994) 29 Cal.App.4th 614, 619-620.) And CALJIC No. 4.01 does indeed mention outpatient programs. As the trial court instructed Bramlage's jury: "A verdict of not guilty by reason of [in]sanity does not mean the defendant will be released from custody. Instead, he will remain in confinement while the courts determine whether he has fully recovered his sanity. If he has not, he will be placed in a hospital for the mentally disordered or other facility or in outpatient treatment, depending upon the seriousness of his present mental illness." (Italics added.)

Although the prosecutor should not have been talking about what would happen to Bramlage should he be found insane, the prosecutor was justifiably responding to misinformation defense counsel had given the jury. "[E]ven otherwise prejudicial prosecutorial argument, when made within proper limits in rebuttal to arguments of defense counsel, do [sic] not constitute misconduct." (People v. McDaniel (1976) 16 Cal.3d 156, 177; see also People v. Hill (1967) 66 Cal.2d 536, 560 ["prosecutor's comments can fairly be construed as having been provoked by defense counsel's foregoing improper argument"].)

In his reply brief, Bramlage fails to acknowledge his misreading of CALJIC No. 4.01. Instead, he shifts his focus by arguing the prosecutor committed misconduct by suggesting he "would `just go home' within a year if he were found insane." In People v. Modesto (1967) 66 Cal.2d 695, disapproved on another ground in Maine v. Superior Court (1968) 68 Cal.2d 375, 383, fn. 8, our Supreme Court called it "obvious misconduct" for the prosecution, in reference to a defendant's plea of not guilty by reason of insanity, to tell the jury "that, if the defendant were found insane at the time he committed the offense, he would be `turned loose.'" (People v. Modesto, supra, at p. 708.) This kind of misconduct has resulted in the reversal of sanity judgments.^{[ 5 ]} (See People v. Sorenson (1964) 231 Cal.App.2d 88, 91 [by saying "`If the doctor feels he is not in one of these states of being manic depressive this particular minute, this turns him loose,' "prosecutor improperly suggested defendant could be released from mental hospital without any judicial finding of restored sanity]; People v. Johnson (1960) 178 Cal.App.2d 360, 369 [prosecutor improperly told jury that, if it returned insanity verdict, the defendant "`"walks free and clear of this charge"'"]; People v. Mallette (1940) 39 Cal.App.2d 294, 299 [prosecutor improperly said: "`the crime requires the operation of a sane mind, and therefore [the defendant] will walk out free if you find she was insane at the time of the commission of the offense'"].)

But unlike these cases, the prosecutor here did not say, or even imply, that a verdict of not guilty by reason of insanity could result in Bramlage's release without any intervening judicial determination of restored sanity. All the prosecutor said was: "Actually it [i.e., CALJIC No. 4.01] also talks about another possibility: that the defendant could be put in an outpatient program and that within a year, if another jury finds that he's sane, he'd just go home." (Italics added.) This was not a "deceptive or reprehensible" method of persuading the jury. (See People v. Salcido, supra, 44 Cal.4th at p. 152.)

(3) Griffin error.

Bramlage contends the prosecutor committed misconduct by commenting on his failure to testify during the sanity phase, in violation of Griffin v. California (1965) 380 U.S. 609 [85 S.Ct. 1229]. This claim is meritless.

(a) Legal Principles.

"Griffin forbids argument that focuses the jury's attention directly on an accused's failure to testify and urges the jury to view that failure as evidence of guilt." (People v. Avena (1996) 13 Cal.4th 394, 443.) "A prosecutor may not directly or indirectly comment on a defendant's failure to testify in his or her own defense. [Citation.] But the prosecutor may comment on the state of the evidence, including the failure of the defense to introduce material evidence or to call witnesses." (People v. Mincey (1992) 2 Cal.4th 408, 446; see, e.g., People v. Medina (1995) 11 Cal.4th 694, 756 [no Griffin violation where "prosecutor's comments were directed to the general failure of the defense to provide an innocent explanation as to why defendant was armed . . . at the time of the robberies"].)

(b) Background.

During closing argument at the sanity phase, the prosecutor told the jury:

"Expert testimony. An opinion is only as good as the facts and reasons on which it is based. If you find that any fact has not been proved or has been disproved, then that means the opinion's no good.

"All these doctors, these three doctors that the defense called, they based their opinion on the defendant's statement to them. Ask, has it been proved, defendant's statement? Was it put on as evidence? If not, those experts are worthless. Or has the defendant's statement been disproven? If it has, those experts are worthless.

"First, that it hasn't been proven. I'm going to show you that she [i.e., defense counsel] hasn't proven it. And it's all in a jury instruction. The . . . statement of a defendant to a doctor is not considered by you as evidence of the truth of the facts disclosed in the defendant's statement. It's in a jury instruction because she never put it in for the truth of the matter, and she has the burden of proof. She needs to put that statement in front of you as evidence."

The following colloquy then occurred:

"[Defense counsel]: Objection, Your Honor. Fifth Amendment grounds.

"The Court: Okay. The objection's overruled. This is argument, ladies and gentlemen, and you will receive the instructions from the court.

"[The prosecutor]: The testimony is not in evidence for the truth of the matter. So already all three of her experts who base their opinion on that are worthless. That basically just says what I just said."

The prosecutor thereafter made several similar comments:

"Now, [Dr. Kowell] also says his opinion is based on the accuracy of what the defendant told him, but that statement has not been put into evidence for the truth of the matter. And then we know that that statement's false based on the witnesses. So his statements, his opinion's no good."

"Let's bring this back to the same thing that we had in the guilt phase. You must determine the facts based on the evidence received at trial. There's only one truth. [¶] Example: Did the defendant jump off the balcony to commit suicide as he said to the doctors and walked [sic] to his car, or did he run away because he thought the police were coming after Thomsen told him that? [¶] What is not evidence? Statements made by the attorneys and the statement the defendant made to the doctors."

"Evidence consists of the testimony of witnesses, those people who took the witness stand under oath and were cross-examined. That's Thomsen, Novikova and Ragan. [¶] Remember the defendant's statements to different doctors were inconsistent. They were not under oath. The defendant has lied in the past. He was inconsistent with other witnesses. He's been inconsistent with the physical evidence. He's been inconsistent with the physical evidence in the apartment. And he has an obvious motive to lie."

(c) Discussion.

Bramlage argues that prosecutor's comments were similar to those made by the prosecutor during the sanity phase of a trial in People v. Flores (1976) 55 Cal.App.3d 118. During closing argument, the prosecutor said: "`One witness testified, the doctor[.] Did anybody prove that the defendant heard voices? No one. That is a fatal flaw in their case. Defendant never told you. He was not cross-examined. [¶] Now ladies and gentlemen, obviously there is only one person that would have given you that kind of evidence. The defendant himself.'" (Id. at pp. 119-120.) Following a denied mistrial motion, the prosecutor continued: "`[T]here is no evidence before you that defendant heard those voices. Obviously, there is only one witness who could have given that evidence. That witness has been in court all during this proceeding. The witness I am referring to is the defendant . . . a witness who had to walk a mere 20 steps from where he now sits to the stand to get the evidence that he heard voices. And of course, to be cross-examined. He would have to answer non-friendly questions by myself. That would have shed light on these events. That would have helped him prove what he has to prove, that he was insane at the time. That did not occur. I believe that, in itself, is fatal to the moving party's case.'" (Id. at p. 120.)

The prosecutor's remarks in Flores were so extreme the People conceded they constituted Griffin error.^{[ 6 ]} Bramlage argues that, although the prosecutor's comments in his case "were not as blatant as those condemned in Flores . . . their import was the same." We disagree.

Bramlage asserts the "arguments [here] mirror those in Flores. The prosecutor argued that, despite the testimony of the doctors, there was no proof of appellant's state of mind at the time of the offense because he `never told you' and was `not under oath' or `cross-examined.'" But the prosecutor did not argue to the jury that Bramlage "never told you." This language was used by the prosecutor in Flores, not the prosecutor here.

Although the prosecutor did argue Bramlage's statements were "not under oath" and he was not "cross-examined" on them, she made these comments in the context of discussing CALJIC No. 2.10.^{[ 7 ]} The basis of this jury instruction is the rule that a "defendant [cannot] offer his own hearsay statements as evidence of the truth of what he told [a mental health expert]." (People v. Dennis (1998) 17 Cal.4th 468, 534.)

Griffin error occurs where a prosecutor "focuses the jury's attention" on the defendant's failure to testify and "urges the jury to view that failure as evidence of guilt." (People v. Avena, supra, 13 Cal.4th at p. 443; see People v. Morse (1969) 70 Cal.2d 711, 727, fn. 9 [Griffin error where prosecutor, in order to attack defense expert's testimony that defendant did not deliberate or premeditate, argued: "`The defendant hasn't told you what he was thinking. He hasn't told you why he did this or how he did this. You don't have . . . a word from the defendant'"]; Pope v. Harper (9th Cir. 1969) 407 F.2d 1303, 1305, fn. 1 [Griffin error where prosecutor attacked insanity defense by arguing: "`[W]ho is in a better position to know whether the defendant was or was not conscious . . . than the defendant himself?'" and "`Why has he not taken the stand to claim lack of memory of that period of time?'"].)

In the case at bar, the prosecutor did not try to focus the jury's attention on Bramlage's failure to testify. Rather, the prosecutor was arguing the import of CALJIC No. 2.10: that Bramlage's extra-judicial statements to his doctors did not constitute evidence of the truth of the facts disclosed by those statements, e.g., that Bramlage heard voices or that he tried to commit suicide by jumping from his balcony. There was no Griffin error here.

DISPOSITION

The judgment is affirmed.

We concur.

CROSKEY, J.

KITCHING, J.

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