Opinion
NOT TO BE PUBLISHED
San Diego County Super. Ct. No. SCE198946
McDONALD, Acting P. J.
Petition for writ of habeas corpus challenging a judgment of the Superior Court of San Diego County, Michael B. Harris, Judge. Petition denied.
Larry John Little filed a petition for writ of habeas corpus challenging the judgment entered after a jury convicted him of the second degree murder of Eddy Rabatore. His petition asserts that because his trial counsel did not investigate the existence of, and present evidence on, posttraumatic stress disorder (PTSD), he was denied his constitutional right to effective assistance of counsel. Although the performance of Little's trial counsel was below the applicable standard of objective reasonableness, we conclude that, based on the record in this case, his counsel's deficient performance was not prejudicial.
FACTUAL AND PROCEDURAL BACKGROUND
For consistency in describing the general factual background, we repeat, mostly verbatim, the factual description set forth in our opinion in People v. Little (Oct. 10, 2001, D035850) [nonpub. opn.] (Little), in which on appeal we affirmed Little's conviction of second degree murder. On March 22, 2007, Little filed a request that we take judicial notice of the record in Little, including the clerk's and reporter's transcripts, and our opinion in that case. The People do not oppose that request. We grant that request for judicial notice. (Evid. Code, §§ 452, subds. (a), (d), 459, subd. (a).)
In June 1999, Rabatore and his mother, Joyce Roesch, lived in an El Cajon apartment. At about noon on June 15, Alysen Brooks, Rabatore's friend, and Mary Ross came to the apartment to meet with Roesch, who was planning on moving with Ross into another apartment. There were between six and eight people in the apartment at the time, including Little, who was arguing with someone over cigarettes.
Brooks, Ross, and Roesch left the apartment to run errands and returned later that afternoon. After Roesch asked Little to get everyone out of the apartment, the group went outside to the parking lot and continued arguing. After the other group members left, Brooks, Roesch, Little, and Rabatore remained in the apartment. After 6:00 p.m., an argument began between Little and Rabatore. Behaving in a belligerent manner, Little called Rabatore a "punk-ass bitch," picked up a glass object, and threw it at him. Roesch then told Little she wanted him to leave the apartment. Little refused and stated he was tired and was going to lie down on the couch and try to sleep, which he then did. Roesch then told Rabatore she wanted Little to leave and asked him (Rabatore) to call a friend to help remove Little from the apartment. Rabatore called his friend, Israel Ackerman, who agreed to come over if Rabatore would pick him up. Rabatore called Ackerman again a few minutes later and told him he would pick him up, but Rabatore never did. During both telephone conversations, Ackerman could hear people arguing in the background.
After Rabatore's calls to Ackerman, Little told Roesch and Rabatore: "You don't want to cross me. If you want to do this, fine. We'll do it that way. But it will be a bloodbath. Because if you have your friends come over, then I'll call my brother Woods and the Martel brothers out in Lakeside, and we'll make this into a riot, into a bloodbath. That's up to you." Little then began gathering his belongings and putting them into a backpack. Roesch left the apartment, leaving only Brooks, Little, and Rabatore in the apartment.
While Little was gathering his belongings, Rabatore went to the kitchen and got a steak knife, which he put in his pocket. Rabatore showed the knife to Brooks, who told him to get rid of it because it would only cause trouble. While Little was in the bathroom, Rabatore put the knife on a sewing machine cabinet in his mother's room. Rabatore and Brooks then sat down at the dining room table and had cocktails, while Little was rummaging in various rooms, looking for his possessions.
While Rabatore and Brooks were sitting at the dining room table, Little entered the dining room and made a threat about getting even with people who cross him. Little picked up his backpack as if preparing to leave, then put it down. He picked up a glass figurine from a table and threw it at Rabatore. Brooks saw Rabatore lean back in his chair, attempting to deflect the thrown object with his hands. Little then stepped forward and stabbed Rabatore's arm. Rabatore yelled, "Oh, my God." As Rabatore leaned back in his chair, Brooks saw blood flowing from his arm. Little then stood over Rabatore and plunged a wooden-handled steak knife into Rabatore's chest. Little picked up his backpack, looked coldly at Brooks, and ran out of the apartment. Rabatore screamed he had been stabbed, stood up, took two steps, and then fell back onto the table and collapsed. Brooks, a registered nurse, called 911 and tried to put pressure on Rabatore's wound. When Rabatore stopped breathing, Brooks performed CPR on him. Rabatore stopped breathing again and his heart stopped. Paramedics then arrived and took Rabatore to the hospital, where he was pronounced dead 40 minutes later.
An autopsy showed the stab wound on Rabatore's arm was over two inches long and two and one-half inches deep. The stab wound to Rabatore's chest was about two and one-half inches long and about five inches deep. The knife went through Rabatore's second and third ribs (cutting the third rib), through the right lobe of his lung, through the pericardial sac, through the right atrium of his heart, and pierced his aorta. The direction of the chest wound was from right to left and slightly upward. Little had pushed the entire length of the knife blade into Rabatore's chest to reach his aorta.
One day after Rabatore was stabbed and died, Little was arrested. Although Little had a mustache at the time of the stabbing, he had shaved off his mustache before his arrest. Also that day, a neighbor across the street from Rabatore's apartment found in his backyard the knife used in the attack on Rabatore. The knife was bent and had Rabatore's blood on it.
In July, Little was sent to Donovan State Prison, where he was housed with an acquaintance, Robert Teal. After Rabatore's death, Little had left a message for Teal stating he wanted to see him. While in Donovan together, Teal asked Little why he sent the message. Little told Teal that he had stabbed someone and wanted Teal to get him out of town. During the next few days in prison, Little spoke at length with Teal and others about Rabatore's stabbing. Little told Teal he had been staying with "Ed" and his mother. Ed was unhappy with Little's selling and possessing drugs and had been nagging Little to leave. Little said they had argued before the stabbing. Although Ed had threatened to call someone to come over and help him get Little out of the apartment, Little admitted to Teal he was never concerned that would actually happen. After Little gathered up his belongings, he went back to the room where Ed and a woman were, reached across the woman, and stabbed Ed. Because the woman screamed, Little thought he might have stabbed her, so he stabbed again and struck Ed in the chest. Little told Teal he then left and took the knife with him, discarding it where he thought it would not be found. Little told Teal and other inmates that there had been only one witness and "if this broad would just get knocked off or just get taken out of here until this was over, I'd walk free." Little mentioned the woman was a nurse and in many prison conversations referred to having "this bitch knocked off." Little also described his planned trial defense. Little stated he had told police that Ed picked up an ashtray and attempted to hit him with it and that his stabbing of Ed was a mere reflexive action in self-defense. Little also admitted to Teal that his story of self-defense was wholly fabricated.
An information charged Little with the murder of Rabatore (Pen. Code, § 187, subd. (a)). It also alleged Little personally used a deadly and dangerous weapon (i.e., a knife) in the commission of the murder (§ 12022, subd. (b)(1)) and had two prior prison terms (§ 667.5, subd. (b)). At Little's trial, the prosecution presented evidence substantially as described above.
All further statutory references are to the Penal Code unless otherwise specified.
In his defense, Little testified and admitted his prior convictions for receiving stolen property and possessing drugs for sale. Little testified he had not tried to fabricate a defense and never wanted Brooks to be "knocked off." Little testified he had been stabbed in the eye at an earlier time, blinding him in that eye and making him "jumpy." He said that on June 15, 1999, everyone at the apartment but him had been using methamphetamine. He said Rabatore had used some methamphetamine and become hyperactive and aggressive. Little said Rabatore had called friends to come beat him (Little) and told him he would be "wiped out by some guys." Because he (Little) did not believe those statements, he did not leave the apartment. Little testified he later realized Rabatore was serious when he heard Rabatore tell his mother to wait outside for his friends. After Little collected his belongings and prepared to leave, Rabatore told him not to go anywhere, picked up an ashtray, and blocked Little from leaving the apartment. Little testified that he then picked up a knife from a table and, when Rabatore lunged at him with the ashtray, made two jabs with the knife and ran out the door. Little testified that Rabatore was standing when he lunged at him with the ashtray. Little said he was unaware he had actually stabbed Rabatore until he was told so in prison. He said he did not contact police afterward because he was unaware he had killed Rabatore. Little also said he did not attempt to change his appearance afterward. Little admitted he did not see Rabatore with a knife that evening.
The jury found Little guilty of second degree murder and found true the allegation he personally used a knife in committing the murder. The trial court found true the prior prison term allegations. The court sentenced Little to a term of 18 years to life with the possibility of parole. On appeal, Little contended the trial court erred in instructing the jury and admitting the testimony of an informant (i.e., Teal). On October 10, 2001, we issued our opinion in Little and affirmed the judgment. (Little, supra, D035850.)
On December 27, 2002, Little filed, in propria persona, a petition for writ of habeas corpus in the Superior Court of San Diego County, which assigned it the case number EHC388. In that petition, Little argued that he had been denied his constitutional right to effective assistance of counsel when his trial counsel did not investigate and present evidence to support a defense theory of imperfect self-defense based on PTSD. On February 19, 2003, the court issued an order to show cause (OSC) why the relief requested in the petition should not be granted. The OSC was issued only on the question of whether Little was denied effective assistance of counsel. The court appointed counsel (W. Allan Williams) to represent Little in the OSC proceeding. After considering the People's return to the petition and Little's denial of that return, the court ordered that an evidentiary hearing be held on the petition. Beginning on August 24, 2004, the court held an evidentiary hearing at which Little, his father, his sister, his trial counsel (Edward J. Peckham), and psychiatrist Allen A. Abrams, M.D., testified. On August 26, San Diego County Superior Court Judge Louis R. Hanoian issued a minute order denying the petition, stating:
"As to the issue of ineffective assistance of counsel for failure to have [Little] evaluated for [PTSD], Court finds that a reasonably competent attorney would have had [Little] evaluated and explored any relationship of PTSD to this case, but that the failure was not prejudicial to [Little] as PTSD does not fit the facts of this case."
On November 3, 2005, Little filed the instant petition for writ of habeas corpus (Petition) with this court, asserting he was denied his constitutional right to effective assistance of counsel. He asserted he was denied effective assistance of counsel when his trial counsel did not investigate, and present evidence on, a defense theory of imperfect self-defense based on PTSD. On August 3, 2006, we issued an OSC "[o]n the sole question of whether trial counsel rendered ineffective assistance by failing to investigate a [PTSD] defense." We also directed Little to file a supplemental petition on that sole question within 90 days after appointment of counsel. We subsequently appointed counsel (Athena Shudde) to represent Little in the OSC proceeding. On March 21, 2007, Little (by his appointed counsel) filed a supplemental petition on the specific issue of whether he was denied effective representation of counsel when his trial counsel failed to investigate, and present evidence on, a PTSD defense. In support of the supplemental petition, Little submitted various exhibits, including a supplemental opinion letter from Abrams and the declarations of two experienced defense counsel. The People filed a return to the supplemental petition, and Little filed a traverse.
The Petition also asserted Little was denied due process of law when the trial court did not instruct sua sponte with CALJIC No. 3.37.
The Petition also asserts Little was denied effective assistance of counsel when his trial counsel failed to: (1) investigate the facts of the case; (2) interview or subpoena the victim's mother and other witnesses regarding drug use and violence at her apartment; (3) present evidence on the effect of Little's alcohol use and lack of sleep on his state of mind; (4) impeach the prosecution's key witness; (5) request an involuntary manslaughter instruction; and (5) thoroughly object to admission of Teal's testimony. The Petition also argues he was denied effective assistance of counsel when his appellate counsel failed to: (1) file a petition for writ of habeas corpus based on ineffective assistance of his trial counsel and other matters outside the record; (2) move to correct our misstatement of fact in Little that the jury was instructed on involuntary manslaughter; and (3) argue the trial court's errors violated the federal Constitution.
Little also requested that we take judicial notice of the files and records in the proceedings on his petition for writ of habeas corpus filed in the superior court (Case Nos. EHC388/SCE198946), including the clerk's and reporter's transcripts. The People do not oppose that request. Accordingly, we grant that request for judicial notice. (Evid. Code, §§ 452, subds. (a), (d), 459, subd. (a).)
In issuing the OSC, we implicitly rejected, and now expressly reject, the People's argument that the Petition should be denied as untimely filed. In the circumstances of this case, we conclude Little did not unreasonably delay by filing the Petition 14 months after the superior court denied his petition for writ of habeas corpus filed in that court. (Cf. In re Clark (1993) 5 Cal.4th 750, 764-765.)
DISCUSSION
I
Constitutional Right to Effective Assistance of Counsel
A criminal defendant is constitutionally entitled to effective assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; Strickland v. Washington (1984) 466 U.S. 668, 684-685; People v. Pope (1979) 23 Cal.3d 412, 422, disapproved on another ground by People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.) To show denial of that right to counsel, a defendant must show: (1) his or her counsel's performance was below an objective standard of reasonableness under prevailing professional norms; and (2) the deficient performance prejudiced the defendant. (Strickland, supra, at pp. 687, 691-692; People v. Ledesma (1987) 43 Cal.3d 171, 216-217; Pope, supra, at p. 425.) To show prejudice, a defendant must show there is a reasonable probability he or she would have received a more favorable result had his or her counsel's performance not been deficient. (Strickland, supra, at pp. 693-694; Ledesma, supra, at pp. 217-218.) "When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the [trial counsel's] errors, the factfinder would have had a reasonable doubt respecting guilt." (Strickland, supra, at p. 695.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.]" (People v. Williams (1997) 16 Cal.4th 153, 215.) It is the defendant's burden on appeal to show that he or she was denied effective assistance of counsel and is entitled to relief. (Ledesma, supra, at p. 218.) "[T]he burden of proof that the defendant must meet in order to establish his entitlement to relief on an ineffective-assistance claim is preponderance of the evidence. [Citation.]" (Ibid.)
"In evaluating a defendant's claim of deficient performance by counsel, there is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance' [citations], and we accord great deference to counsel's tactical decisions. [Citations.] . . . Accordingly, a reviewing court will reverse a conviction on the ground of inadequate counsel 'only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission.' [Citations.]" (People v. Frye (1998) 18 Cal.4th 894, 979-980.)
Under the right to effective assistance of counsel, "the defendant can reasonably expect that in the course of representation his counsel will undertake only those actions that a reasonably competent attorney would undertake. But he can also reasonably expect that before counsel undertakes to act at all he will make a rational and informed decision on strategy and tactics founded on adequate investigation and preparation. [Citations.] If counsel fails to make such a decision, his action--no matter how unobjectionable in the abstract--is professionally deficient. [Citations.]" (People v. Ledesma, supra, 43 Cal.3d at p. 215.) Criminal defense counsel has the duty to investigate carefully all defenses of fact and of law that may be available to the defendant. (In re Williams (1969) 1 Cal.3d 168, 175.) "[T]o render reasonably competent assistance, an attorney bears certain basic responsibilities, including the investigation of available defenses and, in an appropriate case, the obtaining of a psychiatric examination. [Citation.]" (People v. Frierson (1979) 25 Cal.3d 142, 160-161, italics added.) "[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." (Strickland v. Washington, supra, 466 U.S. at p. 690-691.)
We "must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." (Strickland v. Washington, supra, 466 U.S. at p. 690.) Furthermore, we must consider the seriousness of the charges against the defendant in assessing counsel's performance. (In re Jones (1996) 13 Cal.4th 552, 566.)
II
The Supplemental Petition
The supplemental petition asserts that because his trial counsel did not investigate, and present evidence on, a PTSD defense, Little was denied his constitutional right to effective assistance of counsel. The record we consider consists of the Petition (including the supplemental petition), the exhibits to the supplemental petition, and the files and records of the habeas corpus proceedings below (which we have judicially noticed). For purposes of this opinion, we describe the salient portions of the record.
1. Testimony of Little's Sister. At the OSC evidentiary hearing in the superior court, Sharon Little (Sharon) testified that in 1993, Little was stabbed in his left eye and lost that eye. After that incident, Little became paranoid and a little panicky about someone coming up behind him. Little also suffered a major head injury from a bicycle accident when he was 12 years old. His personality changed after that accident. Little used marijuana during high school and methamphetamine after high school. About five years after Little's 1993 eye incident, Sharon began seeing a psychologist (Diana Weiss) for depression. She discussed with Weiss the 1993 incident in which Little lost his left eye and Little's arrest for the instant incident. Weiss told her that Little may suffer from PTSD. Weiss offered to testify at Little's trial about PTSD generally. Sharon told Little's trial counsel (Peckham) of Weiss's offer, but her offer was not pursued.
2. Testimony of Little's Father. At the OSC evidentiary hearing in the superior court, Larry John Little, Sr., (Father) testified that after Little lost his left eye in 1993, he became "real jumpy." If Father walked up behind him, Little would jump. Little did not want people to quietly walk up behind him because he would "freak out." Father told Peckham about Little's jumpiness. Father testified that Little had never been evaluated by a psychologist or psychiatrist outside the prison system.
3. Testimony of Little. At the OSC evidentiary hearing in the superior court, Little testified he told Peckham about his head injury and alcohol and methamphetamine use. He also told Peckham about the 1993 stabbing incident that resulted in the loss of his left eye. Little testified about the details of that incident. He and a friend were drinking and went to Pacers, a topless bar. Little had with him about $300 or $400 from his unemployment check. After leaving Pacers, they picked up a couple of girls (described as "hookers") who were standing on a street corner. Little pulled the money out of his pocket and showed it to one of the girls. That girl told him she was going to take his eye out if he did not give her the money. She then suddenly stabbed Little repeatedly in the eye. Little thought he was going to die. He was hospitalized and lost his left eye. He was "freaking out" because he did not have an eye. It was a very painful experience for him. With corrective glasses, he has 20/60 vision in his remaining (i.e., right) eye. He was not wearing his glasses when he stabbed Rabatore. During the first few weeks after the 1993 eye incident, Little was afraid to go outside and had nightmares.
About three months after the 1993 eye incident, a woman friend of Father's came up behind Little in the kitchen and started yelling at him. Little "went all crazy" and grabbed a kitchen knife. However, he did not tell Peckham about that incident. In 1997 or 1998, Little was attacked by a gang of Mexicans and was hospitalized for injuries to his face and foot. After that incident, Little felt "real jumpy" and "[e]ven way more jumpy" than before. Also, in about 1996, Little was attacked in his prison cell by an inmate with a sharp object. Little told Peckham about the attack by the Mexican gang, but not about the prison attack. Little also saw a few people stabbed in prison. The prison incidents made him more jumpy toward Mexican skinhead gangs. Little told Peckham he reacts "really bad" to people coming at him violently and reacts quickly because he does not want to lose his other eye. Little testified during his trial that he was "jumpy."
Apparently before trial, Little told Peckham he thought he had PTSD because he had been through a lot. Three months before trial, Little asked Peckham if he could be evaluated by a doctor, but Peckham said they did not need one. Little testified that when he was in prison prior to the instant incident, he saw a psychologist/doctor in connection with his request to be moved from the crowded section in which he was held. He told another doctor at that prison about the eye incident and how it caused him to panic and have bad dreams. Little testified he did not receive any counseling after the eye incident. Little told Peckham he reacted to Rabatore's movement by stabbing him because he thought he was being attacked and because there were people coming to get him.
4. Testimony of Little's Trial Counsel. At the OSC evidentiary hearing in the superior court, Peckham testified he was Little's trial counsel and Little's case was his second murder case. In a prior civil case, he had represented a plaintiff who claimed he suffered from PTSD as a result of being beaten by law enforcement officers. Little told him before trial about the 1993 eye incident. When Peckham heard about that incident, he recognized that was a traumatic event and asked Little questions to determine whether there was a connection between that prior incident and the instant incident. Peckham testified:
"I started asking . . . Mr. Little whether or not this event, this stabbing in his face caused him to have any kind of nightmares, if he had flashbacks, if he had fears about being in places, or was he afraid of people or anything like that -- that we could attribute to his reaction in this case. And he consistently indicated to me that he had no fears; that he didn't have any nightmares. That there wasn't anything about what happened back then that had anything to do with what went on with Mr. [Rabatore]."
Little consistently told Peckham that Rabatore came at him with an ashtray. Little was very concerned that he would lose his remaining eye if Rabatore hit him in the face with the ashtray. Little denied he had ever seen a psychiatrist. Despite what Little told him, Peckham thought Little had PTSD. Nevertheless, Peckham could not see a connection between Little's PTSD and his actions in killing Rabatore. Peckham testified: "I was considering hiring a psychiatrist, but from the comments that [Little] made to me, I thought that the psychiatrist would come to the same conclusion. Sure, he had P.T.S.D., but did it affect the way he responded that day? And I was convinced that the psychiatrist wouldn't be able to say that [it] did."
Although crime scene photos showed the presence of a knife on the floor near where Rabatore's body had been, Little denied that Rabatore came at him with a knife.
On cross-examination, Peckham testified that because he did not see anything in Little that would suggest a mental health expert should examine Little's mental status, he did not consider hiring an expert to explore any mental defenses. Although Peckham knew Little had PTSD, Peckham testified he could not put it in Little's defense case because he (Peckham) had a problem finding a way to get it into the defense case. On questioning from the court, Peckham testified that he generally did not like to present inconsistent defenses because they confuse the jury as to what the real defense is. Because Little would be testifying at trial that he acted in "true" self-defense, Peckham believed it would have been inconsistent to present a psychiatric defense based on Little's misperception.
5. Testimony of Abrams. At the OSC evidentiary hearing in the superior court, Abrams testified he had been retained by Williams (Little's appointed counsel in the superior court OSC hearing) to conduct a full evaluation of Little, had personally interviewed Little, had asked Little standard psychological evaluation questions, and had reviewed materials relating to Little's case. Abrams found Little had a form of PTSD, if not "full blown" PTSD, related to a number of incidents in his life. Little told him about the eye stabbing incident, the prison assault in 1996, and the assault on him at the trolley station. Abrams testified PTSD is a response to a significant life-threatening trauma that varies with people and the type of trauma. Responses may include re-experiencing the trauma, avoiding emotional reminders of the trauma, numbing of their responsiveness in life, and hyper-arousal to startling experiences. PTSD may be "full" or "partial" (i.e., sub syndromal), depending on how many trauma re-experiencing criteria set forth in the DSM-IV (Diagnostic and Statistical Manual of Mental Disorders) a person has. Seventy percent of persons who suffer from PTSD deny they have PTSD.
However, Abrams had not received for review Little's prison medical records prior to 2000.
Based on his interview with Little and his review of records, Abrams concluded it was more likely than not that Little had full or partial PTSD in 1999. In Abrams's opinion, it was quite likely that Little's PTSD played a significant role in his killing Rabatore. Abrams explained: "Little's prior experience with being stabbed in the eye, his prior experience with being assaulted at a trolley stop, [and] his prior experience when [in prison] would have made him overreactive to threats against his life, particularly if a knife was in the vicinity or involved." (Italics added.) Accordingly, Abrams believed Little's PTSD should at least have been pursued as part of his defense case. Because of Little's PTSD, it was highly unlikely Little, in testifying at trial, could have impartially articulated how his mental state at the time of the killing was affected by his prior traumatic experiences. Abrams testified it was likely a PTSD expert would have diagnosed Little with PTSD and would have been able to explain how Little's prior trauma, and particularly being stabbed in the face with a knife, would have affected his perception and response on the day of the killing. Abrams testified that in a homicide situation a person with PTSD can react automatically without malice or an intent to kill and could dissociate (in full or in part) and misperceive the situation.
On cross-examination, Abrams testified that as of the date of the OSC hearing he believed Little had partial, or subsyndromal, PTSD because he did not find any reliable documentation showing Little suffered PTSD symptoms or had been treated for PTSD prior to 1999. Little told Abrams he had bad dreams about being stabbed a couple times a year since the eye stabbing incident. Little also told him of a flashback incident three or four months after his eye injury in which he assaulted Father's girlfriend. Little explained that Father's girlfriend looked like the woman who had stabbed him and that she (the girlfriend) "got in my face" and was yelling at him "the same as the girl who stabbed me," so he picked up a butcher knife and told her to leave him alone. The girlfriend ran out of the house. Abrams testified that a person can be nervous and jumpy because of PTSD or because of methamphetamine use and that an expert would need to decide the cause. In connection with the theory of imperfect self-defense at Little's trial, PTSD testimony could have been used to explain Little's overreaction (in killing Rabatore) because of his prior traumatic event (e.g., 1993 eye incident). In questioning by the court, Abrams testified that women with knives would be very provocative to Little, but a man without a knife could still trigger a PTSD response "[i]f there was the perception or misperception in Mr. Little's mind that his life was being threatened by a violent action."
On redirect examination, Abrams testified that an attorney who suspects a client's mental state was affected by a prior trauma should hire an expert to investigate the client's mental state. Abrams believed there are not many more traumatic events than having one's eye stabbed out. Abrams testified that assuming Little had actually perceived (albeit mistakenly) he was being attacked, the most prominent association from his prior eye stabbing trauma could have been a feeling of unexpectedness or someone becoming emotionally aroused or the feeling of someone invading a personal distance. In questioning by the court, Abrams testified Peckham should have had Little evaluated by a psychiatric professional to determine whether Little had PTSD or another mental problem.
6. Abrams's Supplemental Letter Opinion. In support of the Petition, Little submitted Abrams's declaration stating he had been retained by Shudde in connection with the instant OSC proceeding in this court to conduct a supplemental reevaluation of Little after consideration of additional documents he (Abrams) did not have at the time of his testimony at the OSC hearing in the superior court in 2004. After reviewing about 1,500 pages of documents provided to him by Shudde, Abrams sent a supplemental opinion letter reevaluating Little. Abrams's 10-page supplemental opinion letter is attached to the Petition as Exhibit N. In that letter, Abrams notes that he reviewed police and medical records from the eye stabbing assault on Little on April 19, 1993, and the reporter's transcript from his attacker's preliminary hearing. He also notes he reviewed Little's prison medical records and other records. Abrams stated:
"As I stated in my [trial] court testimony, I believe that Mr. Little's mental status--his mens rea--at the time of the criminal act was the central issue in his trial. These additional records strongly support my thesis that Mr. Little's mental status was influenced by symptoms of PTSD from being stabbed in the eye on April 19, 1993, and that his act was an impulsive, hyper-exaggerated response to a perceived (or misperceived) threat that he believed actually existed. Further[,] the effects of substance abuse and possible brain damage needed to be considered in understanding this actual but possibly unreasonable perception. Though there was testimony at the original trial that Mr. Little committed the crime in a coldly deliberate manner, I believe that the majority of information I reviewed supports the defense of an extreme impulsive over-reaction based on a misperception of a life-threatening threat. I believe that the additional evidence would have firmly negated any claim that Mr. Little was malingering his mental state defense, if it was presented at trial. I believe that PTSD is fully relevant to Mr. Little's killing of Mr. Rabatore." (Italics added.)
Although Abrams testified at the trial court OSC hearing that Little has only partial, or subsyndromal, PTSD, Abrams now believes, based on his subsequent review of additional documents he did not have at that time regarding Little's behavior and symptoms, that Little met the full criteria for PTSD at the time he killed Rabatore. Those additional documents include hospital records after the eye stabbing incident showing he told a nurse on April 18, 1993, that he "always has bad dreams." The additional documents also include Little's prison medical records, including a September 6, 1995, report by psychologist Josh Haskett, Ph. D., in which Haskett, after a comprehensive psychological evaluation of Little, diagnosed Little with "Mild Major Depression with PTSD Features" and "Methamphetamine Abuse." Haskett's report indicated that Little complained of "intrusive thoughts with nightmares at times associated with [the eye] injury." Little also "became very sensitive in crowds, being with people, secondary to being stared at because of his obvious eye injury." Abrams's letter stated that Haskett's report "would have been highly significant in rebutting the prosecution's claim that Mr. Little acted with malice, and intent to kill, and was malingering his claim of an extreme over-reaction." Despite Haskett's diagnosis, it appears Little did not receive any treatment in 1995 from the prison mental health program.
Abrams's supplemental opinion letter described the "core symptoms" of PTSD according to the DSM-IV:
"A. Exposure to a traumatic event associated with intense fear or horror.
"B. Persistent reexperiencing of the event through intrusive recollection, nightmares or flashbacks, with intense distress when exposed to reminders of the event.
"C. Feelings of detachment, anhedonia, amnesia, restricted affect, or active avoidance of thoughts or activities that may be reminders of the event.
"D. A general state of persistently increased arousal after the traumatic event, which is characterized by poor concentration, hypervigilance, exaggerated startle response, insomnia, or irritability.
"E. Symptoms present for at least 1 month.
"F. Symptoms cause significant distress or impaired occupational or social functioning."
Abrams stated that had a mental health expert examined Little after his arrest and had access to his complete medical records, that expert likely would have diagnosed Little with the full syndrome of PTSD. Abrams explained:
"At the time of his crime, Mr. Little met diagnostic criteria for [PTSD], as Dr. Haskett observed in 1995, two years after his traumatic loss of vision and four years prior to his crime. His symptom of increased arousal surfaced in both subjective reports to prison psychologists (insomnia, irritability), but also through hyperexaggerated responses to misperceived threats, as when he brandished a weapon against his father's girlfriend. . . . That Mr. Little was suffering from PTSD at the time of his criminal act and well before it is established and documented, given existing medical records. The degree of his hyperexaggerated responses and their violent tone, although disturbing, is not inconsistent with individuals who experience behavioral disinhibition as a result of PTSD. There are numerous studies showing that patients with PTSD are more impulsive and more prone to violence because of their hypervigilance."
Abrams further noted Little's consumption of alcohol that night further disinhibited his responses. Also, Little's brain injury history could have caused increased impulsivity and aggression. Abrams also believed that because Little's truthfulness (i.e., credibility) was crucial in the jury's assessment of his mental state at the time of the killing, testimony of "a mental health expert could have explained the role of denial in people with PTSD, substance abuse and head injury."
In summary, Abrams stated that:
"5. Mr. Little was suffering from untreated PTSD at the time of his criminal act.
"6. Mr. Little's mental status--his perception, thought processing, judgment and reaction--was significantly influenced by an underlying PTSD when he stabbed and killed Mr. Rabatore.
"7. Mr. Little's preexisting PTSD and its [e]ffect on his perception and reaction to threats should have been investigated and addressed by his prior defense attorney, as it directly relates to his mental status at the time of the crime."
Abrams concluded Little's "untreated and underlying psychiatric condition was a crucial element in determining the presence or absence of malice and intent in this crime, and should have been addressed by his [trial] attorney."
7. Declaration of Attorney Inge Brauer. In support of the Petition, Little submitted a declaration of experienced defense attorney Inge Brauer in which she stated Shudde had requested that, in connection with the instant OSC proceeding, she evaluate Little's case as if it were one of first impression and submit her opinion regarding investigation and preparation of the case for trial. After reviewing documents in the case record, including Little's testimony during the superior court's OSC hearing, Brauer stated Little's "physical condition suggested a psychological disorder like PTSD or methamphetamine addiction or some combination or interrelationship between the two." Brauer would have had Little evaluated by one or more psychologists or psychiatrists, despite Little's statement he acted in self-defense and his denial that PTSD had any effect on his behavior. She could not unilaterally accept Little's statements or know whether his claims were consistent with PTSD or an interrelated or independent mental disorder. She would have requested a "full battery" of tests to determine whether Little suffered from PTSD, methamphetamine psychosis, or an impulse control disorder. Also, she would have searched for any available medical records to determine whether, and to what extent, Little had been previously treated for any mental defect or disorder or drug addiction. She also would have investigated Little's prior prison and civilian behavior for preoffense misconduct. Depending on the nature and circumstances of Little's medical history and preoffense misconduct, Brauer would have discussed those circumstances with an expert to determine whether those prior events were consistent with PTSD or another disorder. Only after such an investigation could Brauer rule out or determine whether any psychological defense existed. Brauer stated:
"Based on my training and experience, in light of [Little's] particular vulnerability due to the traumatic loss of vision in one eye, and assuming he suffered from PTSD or some other independent or associated disorder, including methamphetamine psychosis[,] at the time of the offense, my theory of the defense would have been geared toward manslaughter on the grounds [of Little's] disorder(s) affected his ability to form the intent to kill, thereby reducing his culpability from murder to manslaughter, or, more likely, he killed in the actual but unreasonable belief he needed to defend himself." (Italics added.)
Although at trial Peckham presented Little's testimony regarding his "jumpiness" after the loss of one eye, Peckham did not provide any context for that testimony. Without any background on PTSD (or another disorder), a jury could not have understood Little's testimony and "what he perceived, why he perceived it and why he acted or reacted as he did." Brauer stated:
"As a result, [Peckham] could not have given the jury a basis for anything other than a murder conviction. In my opinion, this tactical approach torpedoed the defense and ignored the available avenues of defense. In essence, defense counsel apparently hoped that the jury would accept and understand [Little's] actions without presenting any substantial evidence that could lead a jury to a reasonable doubt as to his mental state, or to the conclusion he acted in unreasonable self-defense, or the conclusion the killing was an involuntary manslaughter."
Brauer concluded: "In my opinion, no reasonably competent criminal defense attorney would have taken this approach without first having exhausted available investigation methods to determine the existence and scope of any mental defect or disorder." (Italics added.)
8. Declaration of Attorney Shudde. In support of the Petition, Little submitted Shudde's declaration stating she had been appointed to represent him in connection with the instant OSC proceeding in this court. Shudde had worked as a criminal defense trial attorney for 20 years. Shudde stated that, based on her training and experience, "any reasonably competent criminal defense trial attorney knows, or is chargeable with knowledge of, the elements of the offense or offenses charged against his client and investigates any and all defenses of fact and law, including apparent psychological defenses and any defenses which would tend to overcome or diffuse proof of the elements of the offenses." Furthermore, "any reasonably competent criminal defense trial attorney[,] acting as a diligent advocate, does not make a tactical decision as to, among other things, the theory of the defense, until such time as he or she exhausted every reasonable avenue of investigation suggested by the facts, the client and the law." Shudde stated that it was her opinion, based on her experience and her review of the files and records in the case, that Peckham's "acts and omission[s] fell outside this standard of a reasonably diligent advocate's duty to investigate. In my opinion, the files and records in the case demonstrated the need for a complete investigation of [Little's] background and a complete psychological or psychiatric assessment." (Italics added.) In addition, it was her opinion Peckham "was ineffective in failing to fully investigate [Little's] background, including obtaining readily available records from both hospitals and jail and/or prison facilities and other sources. It is also my opinion that defense counsel was ineffective in failing to explore a mental defense, specifically, PTSD, and any other associated disorders. Without such materials and expert evaluation, it is my opinion that a psychological defense could not be excluded nor could an intelligent decision be made regarding a potential psychological or other defense." (Italics added.) Because any reasonably competent defense attorney does not unilaterally accept a client's statements at face value, her opinion remained unchanged despite evidence Little claimed PTSD did not affect his behavior and insisted he acted in self-defense. Shudde stated "any reasonably competent criminal defense attorney would want to know whether [Little's] denial of PTSD and claims of self-defense were part of the syndrome and its effects."
Regarding the prejudice of Peckham's deficient performance on Little's case, Shudde stated:
"Given the report of Dr. Abrams (Exhibit N), which makes clear that [Little] suffered from PTSD and some associated disorders, it is my professional opinion . . . that the failure to present a defense based on PTSD and the associated disorders was prejudicial to [Little]. Expert testimony of the disorder and its associated symptoms would have provided [Little] with a state of mind defense, a defense of imperfect self-defense and a claim of involuntary manslaughter. Expert testimony would have explained the disorders from which [Little] suffers, explained their effects upon perception, explained why [Little], who seemingly stabbed Rabatore for no apparent reason, perceived that he was being attacked and acted or reacted or acted and overreacted in the manner that he did. Expert testimony also would have described the milieu in which a person suffering from PTSD exists and provided the jury with evidence from which it could determine whether [Little's] perceptions and actions or reactions were subjectively and objectively reasonable. Expert testimony also would have been relevant to [Little's] credibility, giving his testimony context and explaining the nature of his conduct."
Shudde further stated:
"[A]ny reasonably competent criminal defense attorney would have realized the import of such expert testimony and would have realized that presentation of any claim of self-defense or imperfect self-defense based on vision impairment was mere casuistry [i.e., specious or dishonest] and expert testimony was imperative. Without any expert testimony to explain [Little's] world and why [Little] perceived the facts in a certain fashion and acted or reacted as he did, there was no avenue for the jury to understand and assess [Little's] behavior at the time of the offense. Without such expert testimony, it is my opinion the jury was not provided with any substantial evidence which could lead to the conclusion that he acted with a mental state incompatible with murder or acted in actual, but unreasonable, self-defense, or committed involuntary manslaughter."
Shudde concluded Peckham's deficient performance "exceeded and violated defense counsel's ethical obligation to investigate and explore all reasonably apparent avenues of defense and to explore mental defenses and otherwise prejudicially violated [Little's] rights to due process."
III
Trial Counsel's Deficient Performance
In his supplemental petition, Little contends he has satisfied the first prong of the Strickland test for ineffective assistance of counsel because the record shows his trial counsel's performance was objectively unreasonable under prevailing professional norms. (Strickland v. Washington, supra, 466 U.S. at pp. 687, 691-692.) Little asserts his trial counsel failed to make a reasonable investigation regarding whether he had PTSD and, in particular, failed to retain a mental health expert to evaluate him for PTSD. Absent that investigation, his trial counsel could not make a reasonable, tactical decision that a PTSD--or other mental state--defense was not relevant to his case and/or not a viable defense.
Based on our independent review of the record, we conclude the performance of Little's trial counsel fell below an objective standard of reasonableness under prevailing professional norms. (Strickland v. Washington, supra, 466 U.S. at pp. 687, 691-692.) Little's trial counsel admitted he knew Little had been stabbed in his left eye, resulting in the loss of that eye. Based on Little's description of that prior incident and his counsel's familiarity with PTSD, his counsel stated he knew Little had PTSD from it. However, because Little's counsel could not envision how PTSD evidence could "fit" in the defense case, his counsel decided against retaining a mental health expert to evaluate Little for PTSD or another mental disorder. Because Little told his counsel that he acted in "true" self-defense in fear for his life or remaining eye when Rabatore attacked him with the ashtray, his counsel believed PTSD evidence would not be relevant to the defense case even if an expert found Little had PTSD. At the superior court's OSC hearing, his counsel testified he could not see a connection between Little's PTSD and his actions in killing Rabatore. His counsel testified: "I was considering hiring a psychiatrist, but from the comments that [Little] made to me, I thought that the psychiatrist would come to the same conclusion. Sure, he had P.T.S.D., but did it affect the way he responded that day? And I was convinced that the psychiatrist wouldn't be able to say that [it] did."
We independently evaluate the evidence and are not bound by the factual and legal determinations made by the superior court in denying Little's petition below after its OSC evidentiary hearing. (In re Resendiz (2001) 25 Cal.4th 230, 249.)
In so concluding, Little's trial counsel deficiently performed. First, he appeared to unilaterally accept Little's version of events and denial that the prior eye incident may have affected his perception or conduct in killing Rabatore. However, the duty of defense counsel to investigate cannot be circumscribed by the defendant's statements. (Cf. People v. Corona (1978) 80 Cal.App.3d 684, 715-716; 1 ABA Stds. for Crim. Justice (2d ed. 1980) std. 4-4.1, p. 4.53 ["The duty to investigate exists regardless of the accused's admissions or statements to defense counsel of facts . . . ."].) As the declarations of attorneys Brauer and Shudde essentially state, reasonable defense counsel in the circumstances of this case would not have accepted Little's statements in determining whether Little had PTSD or whether PTSD may have had any effect on his mental state, perception, or actions in killing Rabatore. Therefore, Little's trial counsel should have continued his investigation on that issue despite Little's statements to him.
Second, his trial counsel did not adequately investigate Little's medical and behavioral history. Hospital records show Little had bad dreams soon after the 1993 eye stabbing incident. Furthermore, in 1995 Little reported to a prison psychologist that he had nightmares and that psychologist diagnosed Little with PTSD. However, Little's trial counsel apparently did not promptly and/or diligently seek the hospital and prison records containing that information. Because Little's instant appointed counsel obtained those records, we presume his trial counsel likewise could have obtained those and other records relevant to a determination of whether Little had PTSD and, if so, how it affected him.
Third, and most importantly, Little's trial counsel performed deficiently by not retaining a mental health expert to evaluate Little and determine whether he had PTSD and/or another mental disorder and, if so, to explain how PTSD and/or the other mental disorder(s) may have affected his mental state, perception, and actions when he killed Rabatore. Little's trial counsel, as a layperson (albeit purportedly familiar with PTSD), was not a mental health expert qualified to make that determination or to fully understand and explain how PTSD or another mental disorder may have affected Little's mental state, perception, and actions. Therefore, even though Little's trial counsel stated he knew Little had PTSD, his counsel could not have fully understood what PTSD is and how it may have affected Little. By not retaining a mental health expert to evaluate Little and explain the effects, if any, on Little of PTSD and/or another mental disorder, his trial counsel failed to conduct a reasonable investigation and therefore performed unreasonably under prevailing professional norms, as Brauer and Shudde essentially concluded in their declarations. (People v. Frierson, supra, 25 Cal.3d at pp. 160-161; People v. Corona, supra, 80 Cal.App.3d at pp. 715-716; In re Saunders (1970) 2 Cal.3d 1033, 1048-1049.)
Although Little's trial counsel apparently was unable to envision how Little's PTSD could "fit" in the defense case, reasonable defense counsel, after making a reasonable investigation (including obtaining an evaluation of Little by a mental health expert), would have concluded in the circumstances of this case that Little's PTSD (if so diagnosed and explained by an expert) was not only consistent with Little's claim of "true" self-defense, but also presented a more believable alternative theory or version of the instant incident for the jury. The principal defense theory at Little's trial was that Little acted in the reasonable and actual belief that he needed to defend himself (i.e., "true," or perfect, self-defense). However, the alternative defense theory of imperfect self-defense was also presented at trial based on Little's physical inability to properly see Rabatore's actions because of the loss of his (Little's) left eye and his apparent lack of eyeglasses for his remaining eye. "An honest [i.e., actual] but unreasonable belief that it is necessary to defend oneself from imminent peril to life or great bodily injury negates malice aforethought, the mental element necessary for murder, so that the chargeable offense is reduced to [voluntary] manslaughter." (People v. Flannel (1979) 25 Cal.3d 668, 674, italics omitted, superseded by statute on another ground as noted in In re Christian S. (1994) 7 Cal.4th 768, 777; see also People v. Rogers (2006) 39 Cal.4th 826, 883; People v. Barton, supra, 12 Cal.4th at p. 200 [imperfect self-defense is not a true defense, but rather a short-hand description of one form of voluntary manslaughter]; Christian S., at pp. 773-774.) However, as Brauer, Shudde, and Abrams explained, evidence that Little suffered from PTSD would have been relevant at trial to show his mental state and perception (or misperception) at the time he killed Rabatore. (People v. Steele (2002) 27 Cal.4th 1230, 1253 [jury may generally consider evidence of defendant's mental condition in deciding whether defendant actually had the required mental state for the crime].) In particular, such evidence potentially could have shown Little actually misperceived Rabatore's actions (e.g., erroneously perceived Rabatore as holding an ashtray and/or attacking him). It also could have shown Little was hypervigilant and reacted in an exaggerated manner to his perceptions (or misperceptions) of Rabatore's actions. Given that evidence, a jury could have concluded Little acted in the actual, but unreasonable, belief that he needed to defend himself against an imminent peril to his life or great bodily injury (i.e., in imperfect self-defense).
Murder is the unlawful killing of a human being (or fetus) with malice aforethought. (§ 187, subd. (a).) Manslaughter is the unlawful killing of a human being without malice. (§ 192.) Although section 192 defines voluntary manslaughter as the unlawful killing of a human being, without malice, upon a sudden quarrel or heat of passion, California courts have recognized voluntary manslaughter also includes the unlawful killing of a human being in the actual, but unreasonable, belief in the need to defend oneself from imminent peril to life or great bodily injury because that belief negates malice. (People v. Barton (1995) 12 Cal.4th 186, 200-201.)
Furthermore, that evidence would not necessarily have been inconsistent with a primary defense theory of "true" self-defense. Rather, a theory of imperfect self-defense based on Little's PTSD would have been as consistent with "true" self-defense as the alternative defense theory of imperfect self-defense based on Little's physical visual impairment presented by Little's trial counsel. In particular, both "true" self-defense and imperfect self-defense require that a defendant have the actual belief in the need to defend oneself. The only difference is whether that actual belief was reasonable, which determination was one for the jury to make in the circumstances of this case. Therefore, evidence of Little's PTSD would not have necessarily detracted from Little's primary defense theory of "true" self-defense.
It is also possible evidence of Little's PTSD may have supported the defense theory that he reasonably believed he needed to act in self-defense (i.e., true self-defense). (Cf. People v. Humphrey (1996) 13 Cal.4th 1073, 1086 [evidence of defendant's battered women's syndrome was relevant to issue of reasonableness in purportedly acting in self-defense].)
Furthermore, evidence of Little's PTSD could also have been potentially relevant in disproving that Little had the requisite state of mind for murder (i.e., he lacked malice and/or the requisite intent to kill). (People v. Steele, supra, 27 Cal.4th at p. 1253.) Finally, because Little testified at trial that he believed he needed to act in self-defense when Rabatore attacked him with an ashtray, evidence supporting a finding that Little may have actually perceived (or misperceived) those circumstances because of his PTSD likely would have enhanced the credibility of Little's testimony. Little's trial counsel acted unreasonably by concluding, without first making a reasonable investigation of Little's mental health, that PTSD evidence was irrelevant to and/or inconsistent with his defense. To the extent Little's trial counsel made a tactical decision not to pursue a PTSD defense as purportedly inconsistent with the primary defense of "true" self-defense or on other grounds, that tactical decision was unreasonable because it was not based on a reasonable investigation of Little's mental health. As noted above, "strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." (Strickland v. Washington, supra, 466 U.S. at pp. 690-691.) The decision by Little's trial counsel, whether tactical or not, to not obtain an evaluation of Little by a mental health expert to determine whether he suffered from PTSD or another mental disorder fell below an objective standard of reasonableness under prevailing professional norms. (Id. at pp. 687, 691-692; People v. Ledesma, supra, 43 Cal.3d at pp. 216-217.)
Contrary to the People's assertion, the evidence admitted at trial regarding Little's "jumpiness" was not equivalent to, or a reasonable substitute for, a complete explanation by a mental health expert of any PTSD or other mental disorder that Little had or how it may have affected his perception and actions.
Accordingly, Black v. Collins (5th Cir. 1992) 962 F.2d 394, cited by the People, is inapposite and does not persuade us to conclude otherwise.
IV
Prejudice
In his supplemental petition, Little contends that because the record shows it is reasonably probable he would have received a more favorable result had his trial counsel's performance not been deficient, he has satisfied the second prong of the Strickland test for ineffective assistance of counsel. (Strickland v. Washington, supra, 466 U.S. at pp. 693-694; People v. Ledesma, supra, 43 Cal.3d at p. 217-218.) Little argues that had his trial counsel conducted a reasonable investigation, including obtaining an evaluation of his mental health from an expert, it is likely he would have been diagnosed with PTSD and expert and percipient testimony would have been presented at trial to support an imperfect self-defense theory, to show he lacked the requisite state of mind for murder, and to enhance his credibility. Had that evidence been presented, Little argues the jury "might well have found" he had an actual (and, possibly, a reasonable) belief in the need for self-defense and therefore found him guilty of, at most, voluntary manslaughter.
Little has the burden to show by a preponderance of the evidence that he was denied effective assistance of counsel and is entitled to relief. (People v. Ledesma, supra, 43 Cal.3d at p. 218.) He has the burden to show it is reasonably probable he would have obtained a more favorable result had his trial counsel's performance not been deficient. However, assuming Little's trial counsel had performed a reasonable investigation and presented at trial expert and percipient evidence on PTSD, we nevertheless conclude, based on our independent review of the record in this case, Little has not carried his burden to show his counsel's deficient performance was prejudicial.
At the outset, we conclude Little has shown by a preponderance of the evidence that had his trial counsel conducted a reasonable investigation, a mental health expert likely would have concluded Little suffered from PTSD because of the 1993 eye stabbing incident. We further conclude that, given that diagnosis, reasonable trial counsel likely would have presented PTSD evidence at trial to support an imperfect self-defense theory, to show he lacked the requisite state of mind for murder, and to enhance his credibility. However, even had that PTSD evidence been presented at trial, we conclude, based on the strong evidence of Little's guilt on the murder charge presented by the prosecution at trial, it is not reasonably probable he would have obtained a more favorable result than the jury verdict finding him guilty of second degree murder.
In his supplemental opinion letter Abrams concluded that a mental health expert would likely have diagnosed Little with full syndrome PTSD had that expert evaluated Little and reviewed all of Little's medical and behavioral records and history. Abrams noted that Little's PTSD symptom of "increased arousal surfaced in both subjective reports to prison psychologists (insomnia, irritability), but also through hyperexaggerated responses to misperceived threats, as when he brandished a weapon against his father's girlfriend." He also referred to studies that conclude persons with PTSD generally are more impulsive and more prone to violence because of their hypervigilance. Abrams concluded that Little's "mental status--his perception, thought processing, judgment and reaction--was significantly influenced by an underlying PTSD when he stabbed and killed Mr. Rabatore." (Italics added.) Abrams stated it was his "thesis that Mr. Little's mental status was influenced by symptoms of PTSD from being stabbed in the eye on April 19, 1993, and that his act was an impulsive, hyper-exaggerated response to a perceived (or misperceived) threat that he believed actually existed." (Italics added.) We conclude that had this expert testimony been presented at Little's trial, along with a detailed explanation of PTSD and its common effects and how it may have affected Little's perception and behavior in general, there would have been substantial evidence for a jury to conclude Little had an actual, but unreasonable, belief in the need to defend himself (i.e., imperfect self-defense) and therefore a jury could have found him guilty of voluntary manslaughter rather than second degree murder.
Similarly, at the OSC hearing in the superior court, Abrams testified it was his opinion that it was quite likely Little's PTSD played a significant role in his killing of Rabatore.
Because we believe Little's strongest defense based on that PTSD evidence would have been imperfect self-defense, rather than "true" self-defense, we need not discuss in detail why we also conclude it is not reasonably probable a jury would have found Little acted reasonably in defending himself and acquitted him on all charges.
However, that does not end our analysis of prejudice. The existence of substantial evidence to support a different verdict does not show it is reasonably probable a different verdict would have been obtained had that evidence been admitted at trial. Rather, we must review the entire record, including the evidence presented by the prosecution, to determine whether it is reasonably probable Little would have obtained a more favorable verdict had that PTSD evidence been presented at trial. Accordingly, we review the evidence presented by the prosecution that supports a finding Little acted with malice and an intent to kill Rabatore and not with an actual belief in the need to defend himself. At trial, Brooks testified regarding Little's actions immediately prior to and during his killing of Rabatore. While Rabatore and Brooks were sitting at the dining room table, Little entered the dining room and made a threat about getting even with people who cross him. Little picked up his backpack as if preparing to leave, then put it down. He picked up a glass figurine from a table and threw it at Rabatore. Brooks saw Rabatore lean back in his chair, attempting to deflect the thrown object with his hands. Little then stepped forward and stabbed Rabatore's arm. Rabatore yelled, "Oh, my God." As Rabatore leaned back in his chair, Brooks saw blood flowing from his arm. Little then stood over Rabatore and plunged a wooden-handled steak knife into Rabatore's chest. Little picked up his backpack, looked coldly at Brooks, and ran out of the apartment. Rabatore screamed he had been stabbed, stood up, took two steps, and then fell back onto the table and collapsed.
By finding Little guilty of second degree murder, the jury implicitly found Brooks's testimony regarding the incident credible and Little's contrary testimony that he acted in "true" self-defense not credible. Even had the jury been presented with PTSD evidence, it is likely the jury still would have found Brooks's eyewitness account of the incident more credible than Little's account. The jury likely would have found Rabatore was sitting at the time Little attacked him (and not standing, as Little testified). Also, it is likely the jury would have found Rabatore did not attack Little with an ashtray as Little testified, but rather that Rabatore did not lunge toward Little or make any other aggressive motion toward him. Instead, it is likely the jury would have concluded Rabatore acted defensively only by raising his hands when Little threw a glass figurine at him, leaning back in his chair as he attempted to deflect it. Therefore, the jury likely would have found Little did not act in an actual belief in the need for self-defense, but rather in an unprovoked manner, when he used a steak knife to first stab Rabatore in his arm and then plunge it into Rabatore's chest.
The prosecution's evidence also tends to show Little's actions after he stabbed and killed Rabatore were inconsistent with his claim that he actually believed he needed to act in self-defense when he stabbed Rabatore. After stabbing Rabatore, Little looked coldly at Brooks and then ran out of the apartment. Little then disposed of the bloody knife by tossing it into a neighbor's backyard. Apparently later that day, Little shaved off the mustache he had at the time he killed Rabatore. He also did not report the incident to police. A jury likely would conclude that had Little actually believed in the need to defend himself (a defense theory the PTSD evidence would have supported), he would not have taken those actions afterward and would have, instead, immediately reported the purported self-defense incident to police, not fled the scene and disposed of the knife, and not immediately shaved off his mustache. Those actions by Little after the killing would support jury findings that Little was conscious of his guilt and had not acted in either "true" or imperfect self-defense.
Furthermore, it is likely a jury would conclude Teal's testimony was strong evidence supporting Little's guilt of murder and showing Little did not act in either "true" or imperfect self-defense. Teal testified regarding conversations he had with Little while they were imprisoned together in July 1999. After Rabatore's death, Little had left a message for Teal stating he wanted to see him. While in prison together, Teal asked Little why he sent the message. Little told Teal that he had stabbed someone and wanted Teal to get him out of town. During the next few days in prison, Little spoke at length with Teal and others about Rabatore's stabbing. Little told Teal he had been staying with Ed (i.e., Rabatore) and his mother. Rabatore was unhappy with Little's selling and possessing drugs and had been nagging Little to leave. Little said they had argued before the stabbing. Although Rabatore had threatened to call someone to come over and help him get Little out of the apartment, Little admitted to Teal he was never concerned that would actually happen. After Little gathered up his belongings, he went back to the room where Rabatore and a woman (i.e., Brooks) were, reached across the woman, and stabbed Rabatore. Because the woman screamed, Little thought he might have stabbed her, so he stabbed again and struck Rabatore in the chest. Little told Teal he then left and took the knife with him, discarding it where he thought it would not be found.
Little told Teal and other inmates that there had been only one witness and "if this broad would just get knocked off or just get taken out of here until this was over, I'd walk free." Little mentioned the woman was a nurse and in many prison conversations referred to having "this bitch knocked off." Little also described his planned trial defense. Little stated he had told police that Rabatore had picked up an ashtray and attempted to hit him with it, and that his stabbing of Rabatore was a mere reflexive action in self-defense. Little also admitted to Teal that this story was wholly fabricated.
In finding Little guilty of second degree murder, the jury implicitly found Teal's testimony credible and Little's testimony not credible. Had PTSD evidence been presented at trial, it is likely the jury nevertheless would have found Teal's testimony credible. Teal's testimony provides strong evidence of Little's guilt of second degree murder. After he killed Rabatore, Little left a message for Teal and later explained to Teal that he had wanted his help in getting out of town. Therefore, that evidence shows Little wanted to flee, supporting an inference that Little was conscious of his guilt of murder and had not acted in an actual need for self-defense. Similarly, when Little told Teal and other prison inmates that Brooks was the only witness to the killing and that he wanted her "knocked off" so he could "walk free," Little also showed a consciousness of his guilt by essentially stating a wish that the only material eyewitness be killed and therefore unable to testify against him. That evidence also supports Little's guilt of murder and contradicts his claim he acted in an actual need for self-defense. Finally, and most importantly, Little, according to Teal, discussed with him and other inmates his (Little's) planned trial defense. Little admitted he fabricated his story that Rabatore had picked up an ashtray and attempted to hit him with it and that his stabbing of Rabatore was a mere reflexive action in self-defense. Based on that evidence, it is likely the jury would have disbelieved Little's testimony regarding how and why he killed Rabatore, even had PTSD evidence been presented at trial. It is likely the jury would have found Teal's testimony credible and Little's testimony not credible. By finding Teal's testimony credible, the jury would presumably believe Little essentially admitted to Teal and others that his story of actual self-defense was untrue, as he said it was wholly fabricated. That evidence presumably would be devastating to Little's defense and likely would be more persuasive on the issue of Little's guilt of murder than any PTSD evidence to the contrary.
Despite that strong evidence, Little's supplemental petition and traverse to the People's return make little, if any, attempt to substantively discuss the relative strength of the prosecution's evidence when compared to the defense's evidence, including PTSD evidence had it been presented at trial. Instead, Little focuses almost solely on the PTSD evidence that could have been presented at trial and asserts there would have been substantial evidence to support a voluntary manslaughter verdict. He then makes the conclusory argument that, had the PTSD evidence been presented at trial, it is reasonably probable he would have obtained, at worst, either a hung jury or a voluntary manslaughter conviction. Likewise, although Little submits the declaration of Shudde (his instant appointed counsel) in support of the Petition, her declaration also makes only a conclusory statement that his trial counsel's deficient performance was prejudicial. In so doing, he omits the necessary comparative weighing of the prosecution's evidence with the defense's evidence (as enhanced with PTSD evidence) that is essential in determining what the likely result of the trial would have been had the PTSD evidence been presented. Accordingly, Little has failed to persuade us that it is reasonably probable the defense evidence, including PTSD evidence, would have been more persuasive to a jury than the strong evidence presented by the prosecution supporting his guilt of second degree murder and, as a result, would have raised a reasonable doubt in the mind of at least one juror whether he was guilty of second degree murder.
For instance, in Little's traverse to the People's return, he argues that reasonable trial counsel "could have presented sufficient evidence of PTSD to support a defense of imperfect self-defense and occasion either a hung jury or a verdict of voluntary manslaughter." Similarly, in his supplemental petition, Little argues that if PTSD evidence had been presented at trial together with supporting instructions on voluntary manslaughter, "murder was not a foregone conclusion" and, instead, voluntary or involuntary manslaughter "was a more than viable outcome." By so arguing, Little has not carried his burden to show by a preponderance of the evidence that his trial counsel's deficient performance was prejudicial (i.e., it is reasonably probable he would have received a more favorable result had the PTSD evidence been presented at trial).
Furthermore, Shudde's declaration states: "Without such expert testimony, it is my opinion the jury was not provided with any substantial evidence which could lead to the conclusion that he acted with a mental state incompatible with murder or acted in actual, but unreasonable, self-defense, or committed involuntary manslaughter." Even had the jury been presented with substantial evidence to support a finding of imperfect self-defense (i.e., voluntary manslaughter), it does not follow that is reasonably probable the jury would have made that finding rather a finding of second degree murder. Little does not show the substantial evidence supporting his imperfect self-defense theory based on PTSD would have outweighed the strong (and even more substantial) evidence of his guilt presented by the prosecution so that it is reasonably probable at least one juror would have had a reasonable doubt regarding his guilt of second degree murder.
Seidel v. Merkle (9th Cir. 1998) 146 F.3d 750, cited by Little, is inapposite and does not persuade us to conclude otherwise. In People v. Webster (1991) 54 Cal.3d 411, cited by the People, the court applied an approach similar to that which we have applied in deciding the issue of prejudice in this case, but we do not rely on that case in disposing of this case.
Although PTSD evidence presumably would have bolstered Little's theory of imperfect self-defense, we conclude, based on the record in this case, that had reasonable trial counsel presented that evidence at trial, it is not reasonably probable Little would have obtained a more favorable result than the jury's verdict of second degree murder. (Strickland v. Washington, supra, 466 U.S. at pp. 693-694; People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.) Alternatively stated, we conclude the deficient performance of Little's trial counsel was insufficient to undermine our confidence in the outcome of Little's trial. (People v. Williams, supra, 16 Cal.4th at p. 215.) Because Little has not carried his burden to show he was prejudiced by his trial counsel's deficient performance, we conclude he has not satisfied the second prong of the Strickland test and therefore was not denied his constitutional right to effective assistance of counsel. (Strickland, supra, at pp. 687, 691-692; Ledesma, supra, at pp. 216-217.)
Because we issued the OSC solely on the question of whether Little was denied effective assistance of counsel because his trial counsel did not investigate a PTSD defense, we summarily deny, without any substantive discussion of, the other contentions raised by Little in the Petition.
DISPOSITION
The petition is denied.
WE CONCUR: AARON, J., IRION, J.