Opinion
C040274
10-20-2003
THE PEOPLE, Plaintiff and Respondent, v. ROBBIE BANKS, Defendant and Appellant.
A jury found defendant Robbie Banks guilty of second degree murder of Clarence Dinkins. The jury found defendant sane at the time of the crime. On appeal, defendant argues: (1) the trial court erred in refusing to grant use immunity to a defense witness; (2) her attorney failed to provide her with effective assistance by "failing to present any evidence whatsoever at the sanity phase" of her trial; and (3) the trial court erred in denying her "motion for a new trial based upon allegations of juror misconduct." We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant and her brother, Ronald Williams, killed Clarence Dinkins by stabbing him to death. In all, defendant and Williams stabbed Dinkins 11 times.
On the day of the murder, defendant went to visit an acquaintance at her home. While she was there, defendant and Dinkins got into an argument. Defendant smoked some rock cocaine and then passed out. When she awoke, Dinkins had taken her cigarettes, her pipe, and her money. She believed someone had gone through her pockets as well. When she confronted Dinkins about this, he told her there was nothing she could do about it. Defendant went to the store and got alcohol and returned to the acquaintances house. When she returned, she and Dinkins continued to argue.
Later that day, Dinkins and another man, James Oakley, confronted a woman who was trying to steal the car stereo from Oakleys truck. Defendant came over and got into an argument with Dinkins about the way he handled the thief. Oakley claimed defendant told Dinkins he should have beat up the thief. In her testimony, however, defendant claimed she said the woman was lucky Dinkins did not "whip her ass." During this argument, Dinkins slapped defendant in the face causing her lip to bleed.
Defendant got into Oakleys truck and refused to get out. Defendant demanded they drive her to her mothers house and Oakley and Dinkins complied. As they drove to defendants mothers home, Dinkins and defendant continued to argue. After they arrived at their destination, defendant told Dinkins that if he hit her on her own block, she would cut him and she would get her brother to cut him too. Then, defendant took Oakleys truck keys and threw them on the roof of the house. Defendant also hit Oakleys truck with a lawn chair several times. Oakley reported to the detectives who investigated the crime that defendant appeared to be on a "rage high."
Dinkins said he was going to get a knife. Dinkins left and then returned wearing a heavy jacket. Dinkins told Oakley he had a knife. Oakley did not see a knife, but did see something that appeared to be the outline of a knife under Dinkinss clothing. Dinkins left the scene as defendant threatened to get her brother.
Defendant went into the house. She was screaming at her mother: "[h]es going to beat me up." Defendant reemerged from the house shortly thereafter. Her brother, Williams, followed her. Oakley told the police Williams had a knife, a club, or a comb in his back pocket when he came outside. Defendants mother testified she did not see Williams pick up a knife or any other type of weapon before he left the house.
When Williams came outside, he told Oakley he would take care of what Oakley had not finished with Dinkins. Defendant and Williams ran down the street after Dinkins. Williams then got on a bike and started chasing Dinkins.
Several witnesses testified about the fatal confrontation. Marie Telf saw Dinkins walk by real fast. Next, she saw a second man, Williams, ride up on a bicycle, to catch Dinkins. Defendant followed behind yelling at Williams to catch Dinkins. Telf testified Williams took the first swing at Dinkins and hit him in the chest. Dinkins fell to the ground the second time Williams hit him. Dinkins never swung back. After this, Williams rode away on a bicycle. According to Telf, defendant seemed angry. When defendant reached Dinkinss prone body, she stabbed him. Telf claimed defendant stabbed Dinkins about 15 times. Dinkins did not move when she stabbed him. When she was done, defendant said she had killed Dinkins. Defendant jumped into the back seat of a car and the car drove off.
Williams and Dinkins were already fighting when J. C. Lampkin first saw them. Lampkin saw Williams stab Dinkins several times. After the last stab, Williams left the knife in Dinkins. As Williams got up and walked away, Williams said Dinkins had cut him. Lampkin testified defendant arrived in a car, got out, and stabbed Dinkins. When Lampkin attempted to assist the victim, defendant threatened Lampkin with the knife. After she was done, she got back into a car and drove away. As she got into the car, she told the driver to run Dinkins over.
Tammy Herman testified she saw two kids outside watching Dinkins and Williams fighting. Herman saw Williams swing at Dinkins first, then Dinkins swung back. Dinkins put his hands up and then fell to the ground. Williams kicked Dinkins two or three times and then walked away. Then defendant came up and stabbed Dinkins.
Fifteen-year-old Daniel Morris witnessed the stabbing too. Morris saw Dinkins running away from Williams. Dinkinss pants were falling down and he was bleeding from his posterior. Dinkins fell to the ground. Williams walked up to Dinkins, said something, and then walked away. Defendant came up and stabbed Dinkins. While she stabbed him, Morris testified she shouted, "You stabbed my brother." Morris testified defendant then walked away.
Twelve-year-old Zeke Derr saw Dinkins trying to defend himself while Williams attacked him with a knife. Williams was standing over the victim as Williams stabbed him. Williams then dropped the knife and raised his hands in the air and said "now what?" and then walked away. Defendant ran up to Dinkins and stabbed him several more times. As she stabbed Dinkins, defendant said, "you tried to kill my brother." Then she ran away.
Williams did not testify at trial, however, defendant did. Defendant claimed she was drinking alcohol the entire day of the murder and had ingested cocaine for two days prior to the murder. Later that same day, she spotted a woman trying to steal a stereo from Dinkins car and the ensuing argument and physical altercation started between defendant and Dinkins. When she arrived at her mothers house with Dinkins and Oakley, defendant was angry.
Defendant testified she did not see the start of the fight between Dinkins and Williams. When she got to the scene of the murder, defendant saw her brother covered in blood and heard him say, "He tried to kill me." The next thing defendant claimed to remember was waking up in jail. Defendant claimed she did not remember anything about the murder. She did not remember stabbing Dinkins, saying that she killed Dinkins, or getting in the car after that. Defendant claimed she did not know why she was in jail until the day after she was incarcerated.
Defendant testified that when she was five she suffered a head injury when she ran through a sliding glass door. Defendant also was in a car accident where she hit her head on the rear view mirror. Defendant testified she has had incidents in the past where she had gotten angry and experienced black outs. Defendant claimed she "went black" when she arrived at her moms house and continued fighting with Dinkins. Defendants mother testified defendant was "out of it" when her mother picked her up after the stabbing.
Defendants mother confirmed defendant had experienced black outs since defendant was about five years old. Defendants mother also testified defendant reported seeing things and hearing voices. Her mother attempted to obtain treatment for defendant but was unsuccessful. Defendant had been prescribed antidepressant medications for her mental condition, but her mother could not tell the jury which medications.
Defendant presented the testimony of several health care professionals about her mental health. The first witness was Dr. William Howard Green, a psychiatrist. Dr. Green treated defendant at the Sacramento County jail in 1990 and 1993. In 1993, Dr. Green prescribed Sinequan and Mallaril for defendant. Sinequan is an antidepressant and can be used to treat sleep disorders. Dr. Green testified the dosage he prescribed for Sinequan was quite a bit lower than it would have been if a doctor had been prescribing the medication to treat depression. Mallaril is an antipsychotic medication or major tranquilizer. In lower doses, it is used for agitation, anxiety, and can also help with sleep. Dr. Green testified the dosage he prescribed for Mallaril was low.
In 1990, Dr. Green prescribed imipramine for defendant. The doctor testified imipramine is used to treat depression, but can be used for panic disorders. Dr. Greens prognosis record from this time frame indicated defendant was suffering major depression. Dr. Green also testified he treated defendant for a sleep disorder and symptoms of irritability.
Dr. Green also testified that someone with a long history of cocaine use could suffer psychotic symptoms such as paranoid ideation and auditory hallucinations. Somone could also experience depressed mood states, anger, and be aggressive. Someone with a long history of alcohol abuse and/or cocaine abuse could suffer from periods of black outs as well. Dr. Green testified that in order to determine if a particular person had suffered organic brain damage from their use of drugs or alcohol, he would need to do significant testing. He was unable to conduct those types of tests at the jail.
The next witness defendant presented was Dr. Leslie Paul Kalman. Dr. Kalman is a psychologist. Dr. Kalman prepared a disability report for defendant in October 1996. He had not seen defendant since that time. Dr. Kalman diagnosed defendant with alcohol abuse, cocaine abuse, schizo-effective disorder and intermittent explosive disorder. Dr. Kalman defined schizo-effective disorder as having elements of schizophrenia and mood disturbance. Intermittent explosive disorder is a situation where a person can react violently at the "drop of a hat." According to Dr. Kalman, a person with intermittent explosive disorder is not able to control what he or she does. In those situations, the person just reacts. He or she does not formulate a plan to deal with the situation that provokes his or her anger. Dr. Kalman expected defendants condition to improve in the following six months to a year.
Dr. Kalman testified defendant reported experiencing hallucinations since she was five years old. When he interviewed defendant, she was unable to carry out simple one- or two-job instructions. Dr. Kalman, however, concluded defendants "form of thought was logical and goal oriented, there was no evidence of formal thought disorder."
Nurse Mark Lee Huffman works for the University of California, Davis, in the department of psychiatry and for the jail psychiatric services. Nurse Huffman treated defendant between September 14, 1995, and March 6, 1996. Defendant was taking trazodone when she was discharged. According to Huffman, defendant had a history of heavy substance abuse — alcohol, marijuana, cocaine, and methamphetatmine. Nurse Huffman wrote down his impressions of defendants mental condition as polysubstance abuse, institutional remission, major depression, and post-traumatic stress disorder.
The jail records demonstrated defendant was started on antidepressants in September 1995 and continued on antidepressant therapy at the time of her release. Defendant reported to nurse Huffman she had taken a number of psychotropic medications: Haldol, Prozac, Elavil, and trazodone. Haldol is a antipsychotic drugs. Prozac, Elavil, and trazodone are antidepressants. Nurse Huffman testified that defendant attempted to manipulate him to get different housing in the jail and to increase her medication.
The next witness who testified concerning defendants mental health was Irene Lader. Lader is a clinical social worker who provides psychiatric services for people at the jail. Defendant is one of her clients. In 1991, defendant reported to Lader that she was suicidal.
Defendant was referred to Lader in 1997 because defendant was reported as being suicidal. Lader testified defendant suffered from polysubstance abuse. Defendant was also diagnosed with depressive disorder not otherwise specified, personality disorder not otherwise specified, and post-traumatic stress disorder. Banks reported she suffered from depression, poor sleep, and auditory and visual hallucinations. In a psycho-assessment conducted in September 1997, defendant was diagnosed as depressed. When she was discharged from jail, defendant was given prescriptions for Haldol, artane, and trazodone. On cross-examination, Lader testified defendant was manipulative.
As her final witness, defendant called nurse Judith Johnson. She was employed by the jail psychiatric services. She took notes about defendant in 1993, which included a coded psychiatric diagnoses, but due to the change in the code numbers between 1993 and the time she testified, she was unable to tell the jury what her diagnoses meant. Nurse Johnson testified defendant was prescribed Haldol and artane in 1993. Nurse Johnson testified that defendants discharge form revealed defendant suffered from polysubstance dependence, personality disorder not otherwise specified.
The jury convicted defendant of second degree murder. (Pen. Code, § 187, subd. (a).) The jury also found true the allegation that defendant used a deadly and dangerous weapon in the commission of the crime. (§ 12022, subd. (b).)
All further statutory references are to the Penal Code unless otherwise indicated.
In a bifurcated proceeding, the question of defendants sanity was submitted to the jury without the presentation of further evidence. The jury found defendant sane at the time she committed the crime. She was sentenced to 36 years to life. Defendant appeals.
DISCUSSION
I
Use Immunity
Defendant argues the trial court erred in failing to grant use immunity to a defense witness who would testify, save an assertion of his Fifth Amendment privilege against self-incrimination, that Dinkins armed himself before the fight and stabbed Williams with it first. We conclude the trial court did not err in refusing to grant use immunity.
Use immunity is "`immunity from the use of compelled testimony, as well as evidence derived directly and indirectly therefrom. . . . [Citation.] Use immunity does not afford protection against prosecution, but merely prevents a prosecutor from using the immunized testimony against the witness." (People v. Cooke (1993) 16 Cal.App.4th 1361, 1366.) "[T]wo theories have emerged under which defendants would be entitled to a grant of immunity for prospective witnesses. The first theory, accepted in only a small minority of cases, can be labeled the `effective defense theory; it holds that a court has the inherent power to immunize witnesses whose testimony is essential to an effective defense. The second theory, accepted by a number of circuits, can be called the `prosecutorial misconduct theory; it holds that a court has the power to order the government to grant statutory immunity to a witness (or face a judgment of acquittal) where there exists prosecutorial misconduct arising from the governments deliberate intent to distort the fact-finding process." (U.S. v. Angiulo (1st Cir. 1990) 897 F.2d 1169, 1190.)
The "effective defense" theory originated in the Third Circuit in the case of Government of Virgin Islands v. Smith (3d Cir. 1980) 615 F.2d 964 (Smith). In Smith, the Third Circuit held "the opportunities for judicial use of this immunity power must be clearly limited: immunity must be properly sought in the district court; the defense witness must be available to testify; the proffered testimony must be clearly exculpatory; the testimony must be essential; and there must be no strong governmental interests which countervail against a grant of immunity." (Smith, at p. 972, fn. omitted.)
The California Supreme Court has not yet decided whether a trial court has inherent authority to grant use immunity to a witness to vindicate a defendants right to a fair trial under this "effective defense" theory. (People v. Lucas (1995) 12 Cal.4th 415, 460.) In Lucas, however, the court noted the vast majority of federal circuit court and state cases have rejected the notion of an inherent power to confer immunity. (Ibid.)
In analyzing a claim a trial court erred in refusing to grant immunity, theLucas court assumed "arguendo the doubtful proposition that the trial court has inherent authority to grant immunity" and applied "the stringent offer of proof requirements" of Smith. (People v. Lucas, supra, 12 Cal.4th at p. 460.)
Here, defendants attorney submitted the following offer of proof when she sought judicial use immunity for a witness named Jeff Montaie: "[O]n November 22nd, the day this happened, . . . [Montaie] was in a green house at the corner of Roanoke and South and May. Hes lighting up some dope when [Dinkins] walked in. . . . [¶] [Dinkins] reached over to grab one of my butcher knives, took one. He asked me if he could have it. He asked me if he could have it, and I said he could. . . . [¶] Then he describes the knife that [Dinkins] took. And then followed [Dinkins] outside on the sidewalk. And then he noticed [Dinkins] and [defendant] in the street arguing. And that [Dinkins] took the knife he got from me out of his waist band, he lunged at [Williams] and cut him. [¶] And the statement I have, he describes where Mr. Williams was cut. And he says hes pretty sure its his right arm. Hes not sure how Williams got the knife away from [Dinkins]. He thinks that Mr. Williams punched [Dinkins] who then dropped the knife, and he picked up the knife — Mr. Williams picked up the knife. [¶] And he recalls Mr. Williams and [Dinkins] struggling, and he cant recall seeing Mr. Williams stabbing [Dinkins]. He just remembers [Dinkins] was down on the street. [¶] He said he was two and a half car lengths away from where they were fighting, uh. That Mr. Williams dropped the knife, and that he saw [defendant] walk up yelling: What have you done to my brother. [¶] [Dinkins] tried to pick the knife up. He wasnt dead yet, I think he tried to stab [defendant]. She got angry, and she started stabbing him."
Montaie informed the court he believed he had a Fifth Amendment privilege not to testify and that he intended to assert that privilege. The court appointed counsel for Montaie. In addition to the statements concerning drug use and giving Dinkins a knife as stated in the offer of proof, Montaies counsel stated his client was concerned about his potential criminal liability for having taken the murder weapon after the crime and hidden it. The trial court ultimately found Montaie was entitled to assert the privilege.
Prior to ruling on the request for use immunity, the trial court asked defendants counsel, "So it is your request the Court grant judicial immunity for the purpose of calling [Montaie]?" Defense counsel stated: "Im asking for that limited purpose that I described to the Court, that he was there when the victim got [the] knife." Further, defense counsel agreed that the testimony she wanted to have admitted was "That [Dinkins] got — [Montaie] gave the knife — or [Dinkins] got the knife from him."
Defendants counsel also joined in her brothers written brief which solely pressed for the application of the four-factor test set forth in Smith, supra, 615 F.2d at pages 972-973. Those points and authorities argued Montaies testimony was "clearly exculpatory" because "Where and how this unknown knife originated is a key part of these trial proceedings. [Montaie] stated in his interviews that he(Jabez) `. . . exchanged the knife with the deceased [Dinkins] for dope. `. . . [Dinkins] then put the knife in his pants and left. [Citation.] He further stated in a later interview that [Montaie] . . . gave [Dinkins] a knife. [Citation.] Even later, [Montaie] told defense investigator . . . that [Montaie] `. . . let [Dinkins] take the knife. [Citation.] This testimony would clearly be exculpatory as to Defendant Williams, as his position is that he acted in self defense, and was attacked by the deceased with a knife. The People have attempted to bring out evidence that Defendant Williams may have had a knife with him when he confronted the deceased." (Italics added.) Notably, nothing in the offer of proof or argument of counsel explained why this testimony would be "clearly exculpatory" as to defendant who happened upon Dinkins after her brother had already stabbed Dinkins.
The court assumed it had the power to grant Montaie use immunity, but declined to exercise its discretion to grant it to him. The court concluded that Montaies testimony was cumulative of Oakleys testimony that Dinkins said he went to go get a knife and in fact had gotten one. The court also concluded this testimony was not clearly exculpatory as to the defendant because some of Montaies statements point out that defendant was the one who initiated the physical assault on Dinkins and describes defendant as stabbing Dinkins while he was lying on the street.
We, too, are skeptical of the "essential defense" use immunity proposed by Smith, supra, 615 F.2d 914. Assuming the dubious proposition that the court had the inherent power to grant use immunity, we conclude the Smith criteria for the granting of use immunity have not been satisfied. While the defendant properly sought use immunity from the court, and the People proffered no countervailing governmental interests, this testimony was not "clearly exculpatory" and was cumulative of other testimony offered at trial.
The proffered testimony that the victim armed himself with a knife was not clearly exculpatory as to the defense defendant did not intend to kill Dinkins when she confronted him. Defendants major defense was that she was insane at the time of the killing. She could not remember what happened from the time she saw Dinkins on the ground until the time she arrived at the jail. However the knife got there — whether from Williams or from Dinkins — defendant picked it up and stabbed Dinkins when she arrived. Whether Dinkins brought the knife she found when she killed him says little or nothing about the issue of her intent to kill. It certainly does not reach the level of being "clearly exculpatory."
Moreover, this evidence is not essential because it was cumulative of other evidence on this subject. The parties stipulated that Oakleys prior statements be read to the jury. In those statements, Oakley reported to the police Dinkins said he was going to get a knife. Further, Oakley reported when Dinkins returned, Dinkins confirmed he had a knife and Oakley saw what appeared to be a knife under Dinkinss clothing. In addition, defendants mother testified she did not see Williams take a knife from his house when he went to confront Dinkins. Montaies testimony on this point did no more than confirm this testimony.
Given our conclusion defendants offer of proof failed to meet the criteria enumerated by Smith, supra, 615 F.2d 964, we decline to address whether the trial court has the inherent power to grant use immunity to a defense witness.
Alternatively, defendant points to four Ninth Circuit cases for the proposition that the trial court had the power to grant Montaie use immunity based upon the "prosecutorial misconduct" theory: U.S. v. Croft (9th Cir. 1997) 124 F.3d 1109, 1116-1117 (Croft); United States v. Young (9th Cir. 1996) 86 F.3d 944, 948-949; U.S. v. Westerdahl (9th Cir. 1991) 945 F.2d 1083, 1086-1087; United States v. Lord (9th Cir. 1983) 711 F.3d 887, 889-892.
Croft summarizes the Ninth Circuits analysis of this subject as follows: "`[i]mmunity is an executive, not a judicial, function, and "[t]his court has emphatically rejected the argument that the sixth amendment provides a defendant with a right to demand use immunity for defense witnesses who invoke their privilege against self-incrimination." [Citation.] We have recognized an exception, however, when the defense witnesss testimony would have been relevant, and the prosecutors denial of immunity intentionally distorted the fact-finding process. [United States v. Lord, supra, 711 F.2d at p. 891.] We further have held that intentional distortion does not require affirmative misconduct by the prosecutor: [¶] For the government to grant immunity to a witness in order to obtain his testimony, while denying immunity to a defense witness whose testimony would directly contradict that of the government witness, is the type of fact-finding distortion we intended to prevent in Lord." (Croft,supra, 124 F.3d at p. 1116.)
Here, defendant claims the prosecutor distorted the fact-finding process when the prosecutor "essentially `grant[ed] immunity to James Oakley, but declin[ed] to grant immunity to [Montaie]." (Fn. omitted.) Defendant waived this argument by failing to argue this issue in the trial court. (People v. Lucas,supra , 12 Cal.4th at p. 460.) While defendants brother cited U.S. v. Westerdahl (9th Cir. 1991) 945 F.2d 1083, in his written brief, he made no argument the prosecutor had distorted the fact-finding process by the grant or refusal to grant immunity to any witness. Defendant did not raise this claim either. Rather, defendants sole contention was that use immunity should be granted under the auspices of the four-part test postulated in Smith, supra, 615 F.2d 964. This claim is waived.
Further, the record does not support her claim. The prosecutor did not grant use immunity to Oakley. Rather, the record establishes that after Oakley invoked his Fifth Amendment privilege, each of the parties stipulated that they had no further questions for him. Further, the parties each stipulated his preliminary hearing testimony and certain statements would be read to the jury. This stipulation between all the parties was not the granting of immunity to Oakley by the prosecution "essentially" or otherwise. It did not distort the fact-finding process of this trial. Further, nothing in the record suggests the prosecutor did anything to discourage Montaie from testifying. Thus, the conditions for the application of the Ninth Circuit exception do not apply here.
II
Ineffective Assistance of Counsel
Defendant argues her attorney was ineffective by failing to present "any evidence whatsoever at the sanity phase" of the trial. In the discussion portion of her brief, she hones in on counsels failure to "investigate [defendants] mental condition and seek to retain experts regarding the issue of [defendants] sanity at the time of the incident." We reject this claim.
"To establish constitutionally ineffective assistance of counsel under either the state or federal constitutional right to counsel, appellant must demonstrate (1) that his attorneys performance fell below an objective level of reasonableness, i.e., that counsels performance was not within an objective level of reasonableness and thus did not meet the standard to be expected of a reasonably competent attorney, and (2) that he suffered prejudice as a result of that failure. Prejudice is established if there is a reasonable probability that, absent counsels errors, the result would have been different." (People v. Coddington (2000) 23 Cal.4th 529, 651-652.) "In addition, however, when the reason for counsels action or inaction is apparent on the record, the court will determine whether that reason reflects reasonably competent performance by an attorney acting as a conscientious and diligent advocate. If no explanation appears, an ineffective counsel claim will be rejected unless the attorney was asked for and did not offer an explanation, or there can be no satisfactory explanation. [Citation.] In other cases the appellant is left to his remedy on habeas corpus where evidence outside the record may shed light on the reason for the attorneys action." (Id. at p. 652.) "In any assessment of trial counsels conduct of a criminal defense we are mindful of the admonition of the United States Supreme Court that we must make every effort `to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsels challenged conduct, and to evaluate the conduct from counsels perspective at the time. [Citation.] The burden is on an appellant who challenges the competence of his or her trial counsel to overcome the presumption that counsels conduct is within the range of reasonably professional assistance." (Ibid.)
To establish legal insanity, the accused must prove "by a preponderance of the evidence that he or she was incapable of knowing or understanding the nature and quality of his or her act [or] of distinguishing right from wrong at the time of the commission of the offense." (§ 25, subd. (b); People v. Kelly (1992) 1 Cal.4th 495, 533.)
In People v. Frierson (1979) 25 Cal.3d 142, 151, defendant was convicted of first degree murder. The Supreme Court concluded the defendants attorney was constitutionally ineffective because he failed to investigate and present the only potentially meritorious defense available to defendant of diminished capacity. (Id. at pp. 162-164) The only evidence counsel presented on this subject was that defendant had ingested mind-altering drugs the day of the murder. (Id. at p. 159.) Despite his knowledge of his clients activities, "counsel failed to request a psychiatric examination of defendant for the purpose of exploring defendants mental condition. [Citation.] He failed to consult any expert to determine whether the drugs ingested by defendant, either as to their nature or quantity, might have resulted in a diminished capacity to commit criminal acts." (Ibid.) In support of his habeas corpus petition, defendant produced declarations of experts that their research concerning the drugs defendant ingested could have diminished the capacity to form criminal intent. (Id. at pp. 159-160.) The court concluded, "We should not be understood as requiring that trial counsel must seek psychiatric or expert advice in every case wherein drug intoxication is a possible defense. Yet in a capital case, where diminished capacity appears to be the sole potentially meritorious defense, and counsel has in fact elected to present such a defense at trial, counsel must be expected to take those reasonable measures to investigate the factual framework underlying the defense preliminary to the exercise of an informed choice among the available tactical options, if any. In the present case, we need not speculate as to the likely prejudicial effect of counsels omissions, for counsels failure to take reasonable investigative measures actually resulted in the presentation to the jury of an incomplete, undeveloped diminished capacity defense. We conclude that defendant was thereby deprived of his right to effective trial counsel." (Id. at p. 164.)
In People v. Williams (1988) 44 Cal.3d 883, 936, the court rejected a slightly different claim of ineffective assistance of counsel based on a claimed failure of counsel to "investigate, and to obtain and offer evidence supportive of the diminished capacity defense." In Williams, defendant claimed his attorneys failure to obtain medical reports that would have supported and corroborated his diminished capacity and insanity claims, and his failure to retain "independent" experts on this subject constituted constitutionally ineffective assistance of counsel. (Id. at pp. 937-938.) In rejecting defendants claim, the court relied upon the fact counsel had defendant enter an insanity plea, which thereby brought about the appointment of two court appointed neutral psychiatrists who examined defendant. (Id. at p. 944.) Both of those psychiatrists opined defendant was sane and did not suffer from diminished capacity. (Ibid.) The court rejected defendants claim his attorney should have engaged independent experts. (Id. at pp. 944-945.) The court explained, "[d]efendants attorney did that which we held in Frierson, supra, 25 Cal.3d 142, was required. He made `reasonable efforts to investigate the factual framework underlying the defense of diminished capacity in an attempt to obtain additional evidence in the form of expert opinion to bolster the defense. Competent representation does not demand that counsel seek repetitive examinations of the defendant until an expert is found who will offer a supportive opinion." (Id. at p. 945.)
Here, defendants new trial motion was based in part on the claim her trial counsel rendered her ineffective assistance of counsel in failing to secure an expert on the issue of her sanity. In support of that motion, her trial counsel declared she used poor judgment, failed to make competent decisions, and that her representation of defendant failed to meet community standards of competency.
This motion was brought by counsel retained for this purpose.
The trial court rejected defendants ineffective assistance of counsel claim because it found "its nothing but the purest form of speculation to assume that such consultation would have resulted in an opinion favorable to [defendants claim of] insanity." The trial court found that it was likely that "the opposite would have been the case." Further, the court concluded "the Defense made a tactical decision to rely on the evidence presented in the trial." We agree with the trial courts analysis.
A
Competency of Counsel
Defendant presented significant evidence of her mental impairment to the jury through her own testimony, as well as the testimony of her mother and those who had treated her over the years. She presented the testimony of Dr. Green, Dr. Kalman, nurse Huffman, nurse Johnson, and a social worker. It is true that all this testimony predated this crime, but this evidence raised an inference concerning defendants mental state at the time the crime was committed.
More importantly, like defense counsel in People v. Williams, supra, 44 Cal.3d at page 944, trial counsel here had a report of a neutral court appointed psychologist, Dr. Daniel W. Edwards, that concluded defendant was sane at the time she committed this crime. Further, defendants trial counsel had a report from a Dr. Fong that "was disfavorable to [defendant] having a mental illness." On this record, defendants trial counsels decision not to obtain an independent psychiatrist appears to have been a reasonable tactical decision and not the result of incompetence.
This report was prepared as part of the evaluation required by section 1026 after defendants plea of not guilty by reason of insanity was entered.
Defendants trial counsels declaration undermines her own claim of incompetence. Her declaration demonstrates that counsel made calculated decisions to go with the testimony she had and not to present any additional testimony. She declared that she reviewed the records she received from the jail concerning defendants mental problems. She subpoenaed all but one of the doctors she found on those records. She declined to present Dr. Fongs testimony because of its unfavorable nature. The other report defendants trial counsel had, from Dr. Edwards, the court appointed psychologist, expressly stated defendant was sane at the time of the crime. While trial counsel claims she was unable to subpoena one of the doctors who treated defendant and that doctor "insinuated that he might purposely be a bad witness if he were forced into court," defendant has presented nothing to suggest this doctors testimony would have otherwise been favorable to defendants claim of insanity.
We reject defendants claim her trial counsel failed to subject the prosecutions case to any meaningful adversarial testing. Rather, defense counsel engaged in reasonable efforts to investigate the factual framework and made tactical trial decisions of presenting the favorable evidence she had and avoiding the unfavorable evidence that existed. Defendant has failed to demonstrate her trial attorney failed to meet the standard to be expected of a reasonably competent attorney in representing her.
B
Prejudice
Even if we were to conclude counsels representation somehow fell short of competency, we conclude defendant has failed to meet her burden of demonstrating prejudice. As we have already noted, the only direct evidence in the record concerning defendants sanity at the time of the crime is the report from Dr. Edwards that concluded defendant was legally sane. Despite the fact that defendant filed a posttrial motion complete with transcripts and declarations, she submitted no evidence that even suggests had her trial counsel sought out another expert on the issue of defendants sanity she would have found someone with an opinion defendant was legally insane at the time she committed the crime. (See People v. Wash (1993) 6 Cal.4th 215, 269 [defendants claim of ineffectiveness based on counsels failure to investigate and present evidence of defendants mental condition rejected because defendant failed to establish the nature of the attorneys contact with her expert witness]; People v. Cunningham (2001) 25 Cal.4th 926, 1034 [defendant could not show ineffective assistance of counsel for failure to present evidence of influence of alcohol and medication on his mental state because record did not show what evidence might have been derived from that fact].) Further, defendant has not established what effect any evidence concerning defendants sanity might have had on the jury had it been presented. (People v. Cunningham, supra, 25 Cal.4th at p. 1034.) Thus, she has not satisfied the prejudice prong of the ineffective assistance of counsel test.
III
Juror Misconduct
Defendants new trial motion also raised the issue of jury misconduct. Defendant argues the trial court improperly denied her new trial motion based on the possibility the bailiff engaged in prejudicial misconduct by providing information to the jury in this case. Defendant also argues the jury improperly "injected their own expertise into the jury deliberations with regard to the dosages of medication [defendant] received."
A
The Bailiff
We start with defendants claim the bailiff improperly advised the jury on the law.
"Evidence obtained by jurors from sources other than in court is misconduct and constitutes grounds for a new trial if the defendant has been prejudiced thereby." (People v. Garcia (2001) 89 Cal.App.4th 1321, 1338.) "`In ruling on a request for a new trial based on jury misconduct, the trial court must undertake a three-step inquiry. [Citation.] First, it must determine whether the affidavits supporting the motion are admissible. (Evid. Code, § 1150.) If the evidence is admissible, the trial court must determine whether the facts establish misconduct. [Citation.] Lastly, assuming misconduct, the trial court must determine whether the misconduct was prejudicial. [Citations.] A trial court has broad discretion in ruling on each of these issues, and its rulings will not be disturbed absent a clear abuse of discretion. [Citations.]" (Ibid.)
"[I]t is within the discretion of a trial court to conduct an evidentiary hearing to determine the truth or falsity of allegations of jury misconduct, and to permit the parties to call jurors to testify at such a hearing. This does not mean, however, that a trial court must hold an evidentiary hearing in every instance of alleged jury misconduct." (People v. Hedgecock (1990) 51 Cal.3d 395, 419, fn. omitted.) "[T]he defendant is not entitled to such a hearing as a matter of right. Rather, such a hearing should be held only when the trial court, in its discretion, concludes that an evidentiary hearing is necessary to resolve material, disputed issues of fact." (Id. at p. 415.) "The hearing should not be used as a `fishing expedition to search for possible misconduct, but should be held only when the defense has come forward with evidence demonstrating a strong possibility that prejudicial misconduct has occurred." (Id. at p. 419.)
Further, the "decision whether to grant a continuance of a hearing to permit counsel to secure the presence of a witness rests in the sound discretion of the trial court." (People v. Roybal (1998) 19 Cal.4th 481, 504.) "`To establish good cause for a continuance, defendant had the burden of showing that he had exercised due diligence to secure the witnesss attendance, that the witnesss expected testimony was material and not cumulative, that the testimony could be obtained within a reasonable time, and that the facts to which the witness would testify could not otherwise be proven. [Citation.]" (Ibid.)
Here, defendant submitted her investigators statements of two of the jurors. One of the jurors reported, "I dont think we asked the judge [about the instructions], but we asked the bailiff what it meant. I think he answered it. I cant recall what the question was we asked." When questioned further about whether the issue was malice, the juror stated, "Yes, I think that was the big one that we couldnt figure out for the longest time. With a little help from the bailiff, or maybe it was the judge, we figured it out. Im not sure who we asked. I know we asked the bailiff if we could view the evidence."
Although the statement is not under oath, the People conceded it could be treated as if it had been given under oath.
At the hearing on the new trial motion, defendant asked for a continuance to subpoena the juror who made the above statement and examine her under oath. The trial court denied the requested continuance. The bailiff was sworn and examined. The bailiff testified that nothing unusual happened during the jury deliberations, although the bailiff had no independent recollection of any particular contacts with the jury. The bailiff said he did not recall the jury asking him a specific question about the law or about malice, but that it could have happened. When asked for his response to this question, the bailiff testified: "So my normal response and my typical response is, always: [¶] Put it on a question form that I provided, clear, concise and legible. And Ill take it to the Judge, and they will answer that. It may take a minute before I come back with the answer." When asked if he would ever attempt to answer a question from the jury, the bailiff said: "Absolutely not." The court found "no evidence that the Bailiff improperly instructed the jury on the concept of malice."
The evidence proffered fails to demonstrate a strong possibility that prejudicial misconduct occurred. The defense evidence was that one of the jurors thought they might have asked the bailiff a question about malice. The juror said the answer to the question about malice came from the bailiff, "or maybe it was the judge." Ultimately, the juror concluded, "Im not sure who we asked." Contrasted with this equivocal statement, the bailiff unequivocally testified he would never give the jury this type of information. Defendants initial proffer was insufficient to require an evidentiary hearing at all. In light of the bailiffs testimony, we conclude the trial court did not err in refusing to hold a further evidentiary hearing on this alleged juror misconduct.
As to the continuance request, defendant failed to subpoena the witness for the hearing on the new trial motion and offered no explanation for her failure. Further, defense counsel failed to demonstrate she exercised due diligence to secure the witnesss attendance or that the witnesss testimony could be obtained within a reasonable time. In light of these circumstances, we conclude the trial courts refusal to grant defendant a continuance to present further evidence on this subject was not an abuse of discretion.
B
Medical Information
Defendants second claim of "juror misconduct" is based on the contention jurors "injected their own expertise into the jury deliberations with regard to the dosages of medication [defendant] received."
Our Supreme Court has held a juror committed misconduct when she "expressed negative opinions on the reliability of petitioners polygraph evidence, based on her own professional study of psychology." (In re Malone (1996) 12 Cal.4th 935, 963.) The court explained its conclusion as follows: "It is not improper for a juror, regardless of his or her educational or employment background, to express an opinion on a technical subject, so long as the opinion is based on the evidence at trial. Jurors views of the evidence, moreover, are necessarily informed by their life experiences, including their education and professional work. A juror, however, should not discuss an opinion explicitly based on specialized information obtained from outside sources. Such injection of external information in the form of a jurors own claim to expertise or specialized knowledge of a matter at issue is misconduct." (Ibid.)
More recently, however, the Supreme Court concluded jurors with "medical experience" did not commit misconduct when they offered their opinions about the potential validity of a brain electrical activity mapping test. (People v. Steele (2002) 27 Cal.4th 1230, 1241, 1265-1267.) The test was proffered to show the defendant had abnormalities in his brain. (Id. at p. 1241.) The evidence also disclosed the test was fairly new and the control groups for the test were broken down into groups of 15 to 40 people. (Ibid.) Two of the jurors with medical experience opined the sample size used to evaluate the test results was too small for the test to be valid. (Id. at pp. 1266-1267.) The Steele court concluded the trial court did not abuse its discretion in denying the defendants new trial motion because this did not constitute misconduct. (Id. at p. 1267) The court explained, "A fine line exists between using ones background in analyzing the evidence, which is appropriate, even inevitable, and injecting `an opinion explicitly based on specialized information obtained from outside sources, which we have described as misconduct." (Id. at p. 1266, citing In re Malone, supra, 12 Cal.4th at p. 963.) "A juror may not express opinions based on asserted personal expertise that is different from or contrary to the law as the trial court stated it or to the evidence, but if we allow jurors with specialized knowledge to sit on a jury, and we do, we must allow those jurors to use their experience in evaluating and interpreting that evidence. Moreover, during the give and take of deliberations, it is virtually impossible to divorce completely ones background from ones analysis of the evidence. We cannot demand that jurors, especially lay jurors not versed in the subtle distinctions that attorneys draw, never refer to their background during deliberations. `Jurors are not automatons. They are imbued with human frailties as well as virtues. [Citation.]" (Id. at p. 1266.) The court concluded, "This evidence was susceptible of various interpretations. The views the jurors allegedly asserted here were not contrary to, but came within the range of, permissible interpretations of that evidence. All the jurors, including those with relevant personal backgrounds, were entitled to consider this evidence and express opinions regarding it." (Id. at pp. 1265-1266.)
Here, the "misconduct" alleged by defendant is contained in this statement from one of the jurors: "Defendant wasnt receiving any medical help and never had. And her medication wasnt substantial, like 5 mg, not close to what an insane person would be receiving." When asked about how the jury came to the conclusion this medication was not substantial, the juror responded, "doctors treating her in prison told us how much and what, and it wasnt a substantial amount. We talked it over in the jury room. Several of the women were familiar with it and helped us understand the significance of the medications."
The trial court did not abuse its discretion in denying the new trial motion on this basis. The evidence presented at trial by witnesses examined by defendant was that defendant was prescribed some psychotropic medications. Further, the testimony defendant elicited was that the dosages of the medications offered to defendant were in the low range. The evidence was further that at this level, the dosages prescribed indicated the treatment was for anxiety and sleep disorders, not for mental conditions that rose to the level of legal insanity. There is nothing in the record that the jurors who "explained the significance" of this dosage were commenting based upon any specialized knowledge. Even if they were "medical professionals," their comments were completely in accord with the evidence presented at trial. In this sense, their participation in the deliberations is no different than what the jurors properly did in People v. Steele, supra, 27 Cal.4th at pages 1265-1267. There is no error.
DISCUSSION
The judgment is affirmed.
We concur: MORRISON, Acting P.J. & HULL, J.