Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. VA082642. Thomas I. McKnew, Jr., Judge.
Eric R. Larson, 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, Scott A. Taryle and Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Miguel Alfonso Amador (appellant) appeals from a judgment entered after a jury trial in which he was convicted of second degree murder (Pen. Code, § 187, subd. (a)). Appellant’s sole contention is that his conviction must be reversed because he received ineffective assistance of counsel during the sanity phase of his trial. We affirm the judgment.
All further statutory references are to the Penal Code unless otherwise stated.
CASE BACKGROUND
1. Statement of the Case
By information, appellant was charged with one count of murder, in violation of section 187, subdivision (a). It was further alleged that appellant personally discharged a firearm causing death within the meaning of section 12022.53, subdivision (d), and that the offense was committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(C).
Appellant entered pleas of not guilty and not guilty by reason of insanity.
A bifurcated proceeding was held. After the guilt phase, a jury found appellant guilty of second degree murder. The jury further found the gun use allegation true, and the gang allegation not true. After a subsequent trial on the sanity phase, the jury found appellant sane.
On August 25, 2006, appellant was sentenced to a total prison term of 40 years to life, consisting of 15 years to life for his conviction of second degree murder, plus 25 years to life for the gun use enhancement.
2. Guilt Phase of Trial
A. Prosecution Evidence
The Murder
On the evening of May 4, 2004, Mark Fernandez, Teddy Sanchez, Bernie Parra, Erika Ramirez, and Victoria Ramirez were at Salt Lake Park in Huntington Park. With the exception of Sanchez, they all went inside the ladies’ room to smoke methamphetamine. Sanchez remained outside, talking to his girlfriend on his cell phone.
Mark Fernandez was a member of the tagging crew “TWP.” Members of a tagging crew would spray paint their monikers on various places to indicate their territory, but a tagging crew was not considered a street gang. Appellant, a known member of the Florencia 13 gang, approached on a bicycle. He got off his bike and entered the restroom. Appellant said he wanted to speak with Fernandez. In an angry manner, he asked Fernandez where he was from, adding that “this is Florencia.” Fernandez replied that he was from a tagging crew.
The Florencia 13 was one of the primary gangs in the Huntington Park area. The gang had been trying to recruit members of the TWP, but the tagging crew resisted. This caused problems between the gang and the TWP. Members of the Florencia 13 had also been “taxing,” or taking property from, TWP members in the park.
According to Sanchez and Erika Ramirez, if a gang member asked someone “where they were from,” he was inquiring as to which gang the person belonged. According to the prosecution’s gang expert, Sergeant Carlos Ponce of the Los Angeles Sheriff’s Department, violence usually follows such a question.
Appellant then told the other individuals to leave the restroom. However, Erika Ramirez reminded him that he was in the ladies’ room, and suggested that the men should leave. Appellant, Fernandez, Sanchez, and Parra then left the restroom. Appellant and Fernandez walked out of the restroom and over to a nearby park bench. Appellant and Fernandez talked for a time and then appellant punched Fernandez in the mouth. When Fernandez moved back, appellant pulled out a semi-automatic handgun, and pointed it at Fernandez. Fernandez tried to run away. Appellant fired three shots and Fernandez collapsed on the ground. Appellant then began to walk towards Fernandez. Parra yelled in Spanish, “Jura, jura, trucha,” which means, “watch out, police,” in an attempt to prevent appellant from shooting Fernandez again. Appellant got on his bike and rode away towards Florence Avenue.
Sanchez and Parra went over to where Fernandez was lying. Sanchez tried to pick up Fernandez, but laid him back down upon realizing that the back of his head was covered in blood. Sanchez then took Fernandez’s wallet and cell phone and left the scene. Parra and Erika Ramirez stayed with Fernandez at the scene until police and paramedics arrived.
Sanchez ran to his girlfriend Yaquelin Almeida’s house, which was located next to the park. As he ran towards her house, he threw Fernandez’s cell phone but kept his wallet, which he then gave to his girlfriend. Almeida later threw the wallet away in a trashcan at the hospital where she worked.
Fernandez died of multiple gunshot wounds. One gunshot wound was to the back of his head. The bullet exited over his left eyebrow. The other wound was to his right torso. Both wounds were fatal.
The Investigation and Arrest
Erika Ramirez spoke with police at the scene of the shooting. She identified appellant as Fernandez’s killer, identifying him with one of his gang monikers, “Gizmo.” Ramirez indicated that she had previously known appellant. She also later identified appellant as the shooter upon being shown a photo six pack. She indicated that she was 100 percent sure that appellant was Fernandez’s killer. Sanchez and Parra both spoke with police and also identified appellant as the shooter.
On June 7, 2004, Officer Carlos Garcia was called to a residence due to a domestic abuse investigation, and made contact with appellant, who identified himself as Isaac Alfonso Amador. Officer Garcia checked for outstanding warrants, but there were none under the name given by appellant. However, the officer was informed that an outstanding murder warrant had been issued for a similar name. Appellant was detained pending further investigation. Appellant was searched, and a piece of paper was retrieved. On the paper was written “F13” and another one of appellant’s gang monikers, “Spider.” A search of police records revealed that appellant had previously told police that he was a member of the Florencia 13 gang. Appellant also had that gang’s tattoos on his right and left arms. Appellant was arrested.
The Gang Evidence
Sergeant Ponce described the location of Florencia 13’s gang territory. He noted that asking, “Where you from?” was a way that a gang member would ask another person if he was loyal to a different gang, and that it was often viewed as a challenge to fight. Florencia 13 gang members engaged in such crimes as narcotics possession, weapons possession, and assault.
The tattoos on appellant’s arms identified him as a member of the Florencia 13 gang. The piece of paper recovered from appellant’s pocket at the time of the arrest contained gang information linking appellant to the Florencia 13 gang. Officer Ponce opined that appellant was a member of the Florencia 13 street gang and that the murder of Fernandez was carried out for the benefit of a criminal street gang.
B. Defense Evidence
Manuel Burgos, appellant’s cousin, testified to his belief that appellant was a “good person.” Appellant’s aunt, Rosa Maria Romero, with whom appellant lived prior to the shooting, testified that appellant was a “bad boy” but that he was not the type of person that would commit a murder.
3. Sanity Phase of Trial
A. Defense Evidence
Dr. Perrotti’s Testimony
On March 21, 2005 and April 5, 2005, clinical psychologist and assistant University of Southern California professor Michael Perrotti, Ph.D., interviewed appellant for a total of three hours. Dr. Perrotti opined that appellant suffered from severe depression and was suicidal. Dr. Perrotti also explained that appellant had a lengthy history of substance abuse, specifically PCP and amphetamines. In addition, appellant had suffered a head injury after being hit on the head by a baseball bat. He had been placed in special education classes and, based on psychological testing done by Dr. Perrotti, had an IQ of 67 which equated to mental retardation. However, Dr. Perrotti noted that another examiner had placed appellant’s IQ at 83, which was a low average range of intelligence.
Dr. Perrotti reviewed other psychiatric reports regarding appellant which indicated that appellant suffered from hallucinations, which are symptoms of psychosis, and suffered from a manic impulse control disorder. A report written by Dr. Allen in February 1999 indicated that appellant had a second grade spelling level, a first grade math level, and had attempted suicide several times. The report concluded that appellant was agitated and out of touch with reality. However, appellant had denied to Dr. Allen a history of head trauma, suicidal ideation, and hallucinations. Dr. Allen concluded that appellant “did not appear . . . as severely disturbed as has been noted in previous psychological evaluations.”
When asked to assume the facts of the case and render an opinion whether appellant understood the nature and quality of his act in the commission of the murder on May 4, 2004, Dr. Perrotti stated he did not have enough information to form an opinion. Dr. Perrotti also did not have enough information to offer an opinion as to whether appellant was suffering from a psychotic disorder on May 4, 2004, when the murder was committed. However, Dr. Perrotti believed appellant’s behavior was consistent with a psychotic disorder, and believed there was a possibility that appellant could not make the distinction between right and wrong at the time of the murder.
Dr. Collister’s Testimony
Dr. Timothy Collister, a psychologist and superior court panel expert, tested appellant at the request of the defense. Dr. Collister believed that appellant had a low IQ and functioned in the mildly retarded range. Dr. Collister opined that appellant suffered from a mental disease or disorder known as “Psychotic Disorder Not Otherwise Specified,” as well as an antisocial personality, substantial depression, and drug use. While appellant’s mental disorder was not a constant condition, Dr. Collister opined that appellant was suffering from this mental disorder on May 4, 2004.
Dr. Collister had also reviewed Dr. Allen’s report. Dr. Allen noted that during his evaluation, appellant did not exhibit any bizarre manifestations, and was articulate and acted appropriately under the circumstances. Dr. Allen found that appellant was able to have an organized, goal-directed, rational and logical thought process. Dr. Allen further found appellant to have an IQ of 83, which was not mental retardation.
Appellant had never previously been prescribed antipsychotic medications, nor was appellant ever hospitalized for any psychiatric disorder. Appellant had never been diagnosed with schizophrenia or bipolar disorder.
Dr. Collister could not opine whether, on May 4, 2004, appellant was incapable of knowing the nature and quality of his act. However, the doctor believed it was more likely than not that appellant did not understand the nature and quality of his actions when he committed the murder, given his mild retardation and purported methamphetamine use.
In a hypothetical based on the facts of this case, Dr. Collister believed appellant’s actions showed that appellant understood that what he did was wrong, and nothing in the fact pattern indicated appellant was incapable of understanding the nature and quality of his act. But Dr. Collister believed that appellant would not have understood the consequences of his actions. Dr. Collister did not have an opinion as to whether appellant, due to a mental defect, could understand what was legally right from legally wrong, or what was morally right from morally wrong.
B. Prosecution Evidence
On November 4, 2003, prior to the murder which is the subject of this appeal, Huntington Park police attempted to stop appellant for a traffic violation. After crossing through an intersection, the car driven by appellant stopped. Appellant and a passenger got out of the car and ran. Appellant was eventually captured and placed under arrest. Appellant possessed shaved keys, which were used to steal automobiles, for different models of cars. A slim jim was also found in the car appellant was driving. When appellant was interviewed, he appeared to understand what the interviewing officer was saying. Appellant was not confused, it did not appear that he was having hallucinations, and he was not exhibiting any kind of bizarre behavior. Appellant was calm, and could clearly communicate with the officer. Appellant admitted to stealing the car he had been driving. Appellant also admitted to being a member of the Florencia 13 gang, and told police that his moniker was Spider.
On June 7, 2004, the day appellant was arrested, Detective Rick Curiel interviewed appellant for over an hour. Appellant was not confused, did not appear to have any hallucinations, and was not exhibiting any kind of bizarre behavior. Appellant denied any involvement in the shooting of Fernandez.
DISCUSSION
I. Appellant’s Ineffective Assistance of Counsel Argument
Appellant argues that his case must be reversed because he received ineffective assistance of counsel during the sanity phase of his trial. (U.S. Const., Amends. VI, XIV; Cal. Const., art. I, § 15; Gideon v. Wainwright (1963) 372 U.S. 335; People v. Pope, supra, 23 Cal.3d 412.) Appellant contends that his defense counsel was ineffective at both the evidentiary and closing argument phases of the sanity trial.
Appellant acknowledges that habeas corpus is often a preferred method of reviewing claims of ineffective assistance of counsel. However, appellant argues that where the record on appeal “shows that counsel has failed to research the law or investigate the facts,” (People v. Pope (1979) 23 Cal.3d 412, 425-426, overruled on other grounds in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn.1) or where “there simply could be no satisfactory explanation” for counsel’s acts or omissions (People v. Pope, at p. 426), the conviction should be reversed on direct appeal. The people do not challenge the propriety of appellant’s appeal.
Appellant describes counsel’s ineffectiveness during the evidentiary phase as follows: preliminarily, counsel was unaware of what evidence must be introduced in order to establish a prima facie case of insanity. Prior to the commencement of the sanity phase of trial, defense counsel indicated to the court that this was her first sanity trial. At that time, the court explained to counsel that in order to make out a prima facie case of insanity, counsel needed to present expert testimony that the defendant either (1) did not know the nature and quality of his act; (2) did not understand the nature and quality of his act; or (3) could not distinguish what is right from what is wrong (M’Naghten factors). (See § 25, subd. (b); M’Naghten’s Case (1843) 10 Clark & Fin. 200, 210 [8 Eng. Rep. 718, 722]; People v. Severance (2006) 138 Cal.App.4th 305, 321.)
The first witness called by defense counsel was Dr. Perrotti. Counsel never asked Dr. Perrotti if he had any opinion as to whether appellant qualified as insane under any of the three M’Naghten factors. The court stepped in and proceeded to ask Dr. Perrotti the appropriate questions, and Dr. Perrotti testified that he had no opinion regarding any of the three factors. Counsel then stated that she had no further questions for Dr. Perrotti. In a conference at side bar, the court explained to counsel that she had not made out a prima facie case of insanity, and that upon the prosecution’s motion the court would strike Dr. Perrotti’s testimony. However, the prosecutor chose not to make such a request.
Defense counsel moved to excuse her second expert, Dr. Plotkin, because he had indicated that he could not render an opinion on any of the M’Naghten factors. Dr. Plotkin did not testify. Defense counsel then called Dr. Collister. Defense counsel did ask Dr. Collister whether he had an opinion as to the second M’Naghten factor. He responded in the affirmative, but when asked what his opinion was, his response elicited an objection which was sustained. Defense counsel resumed questioning. Eventually the court asked Dr. Collister if he had an opinion as to whether appellant was suffering from a mental disease or defect on May 4, 2004, which is a prerequisite to a finding of insanity. Dr. Collister responded to the court’s question in the affirmative, and defense counsel then asked him what his opinion was. In response, Dr. Collister opined that appellant was suffering from a mental disease or defect on that date. Defense counsel concluded her questioning without asking Dr. Collister whether this mental disease or defect prevented appellant from understanding the nature and quality of his act. However, upon recross-examination by the prosecutor and further questioning by the court, Dr. Collister testified that in his expert opinion, it was more likely than not that appellant did not understand the nature and quality of his act on May 4, 2004, thereby satisfying the second M’Naghten factor.
Thereafter, during closing argument, defense counsel failed to mention the second M’Naghten factor, which was the only basis upon which the jury could have returned a verdict of not guilty by reason of insanity. Counsel did, however, mention the first M’Naghten factor. In addition, counsel referred to CALJIC No. 4.02, and substantially quoting from that instruction, argued that the jury should find appellant “legally insane . . . by reason of mental disease and defect, either temporarily or permanently caused in part by the long continued use of narcotics even after the effects of the recent crime.” Appellant points out that the court did not instruct the jury with CALJIC No. 4.02, nor did counsel request such an instruction.
Appellant argues that this record makes it clear that defense counsel failed to diligently research the law and investigate the facts with respect to appellant’s defense of insanity. Appellant argues that counsel’s ineffectiveness was so egregious that it amounted to a breakdown of the adversarial process, thus requiring reversal per se. In addition, to the extent that reversal per se is not warranted, appellant contends that the error must be deemed prejudicial.
The people counter that this is not an appropriate case for reversal per se. The people note that appellant’s counsel actively participated in the hearing and eventually did elicit the required opinions from her experts. However, the people’s argument is focused on their position that, even if counsel’s representation was not objectively reasonable, appellant cannot show a reasonable probability of a different outcome. (People v. Gurule (2002) 28 Cal.4th 557, 610-611.)
The people cite In re Jackson (1992) 3 Cal.4th 578, 604 (disapproved on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 545 fn. 6) for the proposition that when an ineffective assistance claim can be resolved solely on the basis of lack of prejudice, it is unnecessary to determine whether counsel’s performance was objectively deficient. (See also Strickland v. Washington (1984) 466 U.S. 668, 697.) Because the issue of prejudice is dispositive, we will not address appellant’s claims regarding defense counsel’s deficient performance.
II. Appellant is Not Entitled to Reversal Per Se
There are certain particularly egregious situations in which a denial of the right to the effective assistance of counsel requires per se reversal of a defendant’s conviction. (United States v. Cronic (1984) 466 U.S. 648, 658-659 (Cronic).) Those situations include a complete denial of counsel at a critical stage of the trial, or an entire failure to subject the prosecution’s case to meaningful adversarial testing. (Id. at p. 659.) However, “[a]part from circumstances of that magnitude . . . there is generally no basis for finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the reliability of the finding of guilt. [Citations.]” (Id. at p. 659, fn. 26.)
In People v. Dunkle (2005) 36 Cal.4th 861, the California Supreme Court explained that the rule set forth in Cronic was a narrow one, which should be applied only where the attorney’s failure is complete. Where “defense counsel was present at and actively participating in” the trial, any purported ineffective assistance does “not reach the magnitude” of those circumstances “in which courts have concluded Cronic required reversal without a showing of prejudice.” (Dunkle, supra, at p. 931.)
We find that the circumstances here do not require reversal per se under Cronic. Appellant’s counsel was present and actively participated in the proceedings. She elicited an opinion from Dr. Collister that appellant suffered from a mental disease or defect, and with assistance from the court also provided evidence that appellant met the second M’Naghten factor at the time of the crime. Thus, she established the prima facie case of insanity. In addition, she argued to the jury that “[h]e is legally insane if he did not have the capacity to know the nature and quality of his acts.” Thus, the record shows that appellant’s counsel was actively engaged in the sanity phase of the trial and did not “entirely [fail] to function as the client’s advocate.” (Florida v. Nixon (2004) 543 U.S. 175, 189.) Therefore, reversal per se is inappropriate and we must analyze the question of prejudice.
III. Appellant Cannot Show Prejudice
A party claiming ineffective assistance of counsel bears the burden of showing both deficient performance and prejudice. We will find prejudice if the defendant can demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. (People v. Gurule, supra, 28 Cal.4th at pp. 610-611.)
Appellant argues that, to the extent reversal per se is not warranted, defense counsel’s purported ineffective assistance must be deemed prejudicial for three reasons: first, the prosecution did not present any expert witnesses to testify that appellant was legally sane at the time of the offense in question. Thus, had defense counsel properly presented and argued her defense of insanity on the basis of expert testimony, there is a reasonable possibility the jury would have been convinced by it, especially because no expert testimony to the contrary was presented. Second, appellant argues that defense counsel’s argument that the jury should find appellant insane based on CALJIC No. 4.02 was of little or no value because it was not supported by instructions. And third, the fact that defense counsel urged the jury to rely upon an instruction that was not given by the court likely damaged her credibility before the jury.
None of these arguments convinces us that there exists a reasonable probability that a different outcome would have resulted absent defense counsel’s purported ineffective assistance. (People v. Gurule, supra, 28 Cal.4th at pp. 610-611.) In response to appellant’s first claim of prejudice, we find that a better presentation and argument regarding appellant’s expert’s testimony would not have achieved a different result. There was overwhelming evidence that appellant was not legally insane. Dr. Collister admitted that his opinions regarding appellant’s mental state were contradicted by the findings of other experts. For example, Dr. Collister’s finding that appellant was mildly retarded was contradicted by the finding of a “regional center” that appellant “does not have mental retardation.”
In addition, Dr. Collister’s conclusion that appellant suffered from a “Psychotic Disorder Not Otherwise Specified,” which was based on records which indicated that appellant “believed that a television was talking to him,” and had reported to a probation officer that he “was smelling dead bodies,” was contradicted by Dr. Allen’s report which explained that appellant later denied the truth of those statements. Dr. Collister admitted that “Dr. Allen asked [appellant] about that, and he told Dr. Allen that he . . . was just angry when he was making those statements.” In addition, under cross-examination, Dr. Collister admitted that he had no direct evidence that on May 4, 2004, appellant was experiencing hallucinations, hearing voices, experiencing paranoia, or was not in touch with reality. Dr. Collister further admitted that two other doctors who evaluated appellant concluded that appellant did not have a mental disorder. Dr. Collister agreed that appellant had never been prescribed any antipsychotic medication or hospitalized for any psychiatric disorder.
Further, while the prosecution did not present any expert testimony regarding appellant’s mental state, they did present evidence of appellant’s own actions. The evidence of those actions further diminished any claim of insanity. Appellant shot directly at Fernandez, apparently because they had some sort of dispute. When someone shouted that the police were coming, appellant fled, thus evidencing an understanding of the nature and quality of his act. Appellant’s flight from the police six months before he murdered Fernandez also showed a clear understanding that his act of stealing the car was illegal and had serious consequences. When he was interviewed by police, he showed no signs of hallucination or other bizarre behavior. And when he was arrested one month after Fernandez’s murder, he gave a false name and denied culpability. This evidence, combined with the expert reports undermining appellant’s expert’s testimony, shows that there is no reasonable probability of a different outcome in the absence of defense counsel’s alleged errors in presenting the expert testimony.
Appellant’s second and third reasons for a finding of prejudice involve defense counsel’s citation to CALJIC No. 4.02, which permitted a jury to consider sustained drug use as a factor in determining whether a defendant had a mental disease or defect. Appellant argues that his reference was not supported by the instructions themselves and likely undermined defense counsel’s credibility. Appellant has failed to make out a case of prejudice based on defense counsel’s brief reference to this jury instruction. First, despite the reference to CALJIC No. 4.02, defense counsel properly argued that the jury should find that appellant was insane on May 4, 2004, because he had a mental disease or defect for which he had never been treated. Defense counsel also properly argued that the jury should consider CALJIC No. 4.00, which the court did read to the jury, and should review the totality of the evidence regarding appellant’s mental condition. In addition, defense counsel properly argued that appellant “did not have the capacity to know the nature and quality of his acts.” Finally, given that defense counsel made reference to this jury instruction only once and in passing, it is highly unlikely that the jury would have been aware of the reference, much less derived a negative impression of defense counsel as a result.
CALJIC No. 4.00, captioned “The Defense of Insanity,” states in part that in determining whether the defendant is legally sane or legally insane, the jury may consider evidence of his mental condition before, during, and after the time of the commission of the crime, as tending to show the defendant’s mental condition at the time the crime was committed.
Appellant argues that this reference to the first M’Naghten factor (lack of knowledge of the nature and quality of his act) compounded defense counsel’s ineffectiveness. Appellant argues that it was the second M’Naghten factor (inability to understand the nature and quality of his act), not the first, which Dr. Collister testified qualified appellant as legally insane. However, defense counsel’s precise words were that appellant “did not have the capacity to know the nature and quality of his acts.” This language was suggestive of either of the first two M’Naghten factors, and likely served its purpose of recalling to the jury Dr. Collister’s testimony regarding the second M’Naghten factor.
For the reasons set forth above, we find that appellant has failed to demonstrate the requisite prejudice under People v. Gurule, supra, 28 Cal.4th at pages 610-611. Therefore appellant’s ineffective assistance of counsel claim fails.
DISPOSITION
The judgment is affirmed.
We concur:BOREN, P. J., ASHMANN-GERST, J.