Opinion
F052298
9-29-2008
THE PEOPLE, Plaintiff and Respondent, v. GEORGE HERNANDEZ BATALLA, Defendant and Appellant.
Nuttall & Coleman and Roger T. Nuttall for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Stephanie A. Mitchell, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
Defendant George "Jorge" Hernandez Batalla was convicted of second degree murder after colliding with a pickup truck driven by Diana Covell (the victim) and pushing it in front of an oncoming cargo truck. On appeal defendant contends (1) the trial court erred by not instructing the jury with a definition of "conscious disregard," (2) trial counsel was ineffective because he did not reasonably investigate defendants mental retardation as a defense to the requisite mental state of murder, (3) trial counsel was ineffective in his closing argument and (4) the one autopsy photograph admitted at trial was prejudicial and should not have been admitted. We affirm the judgment.
FACTS AND PROCEDURAL HISTORY
On June 20, 2005, defendant, while driving, hit the victims truck at the intersection of Central and Fig Avenues in Fresno. Defendants car struck the victims truck as both vehicles entered the intersection. The force of impact pushed the victims truck into the path of an oncoming cargo truck, which also struck the victims truck. The victim died at the scene.
Multiple witnesses reported seeing a white car traveling alongside the defendants car prior to the accident. The white car made it through the intersection before the accident. Witnesses approximated the speed of the two cars as they approached the intersection to be 70 miles per hour.
The first witness to reach defendants car found defendant strapped into the drivers seat of the car. Defendant told the witness he was not the driver and the driver had run off into a field. When a second witness came upon the scene, defendant had managed to extricate himself from the car. The second witness went to get water for defendant but when she returned, defendant was gone. As he was coming home that night, a third witness, whose house was about a mile from the accident, encountered defendant. Defendant offered the witness $100 for a ride, but the witness refused. The witness went inside his house and when he came back out defendant was sitting in his car. While the witness drove, defendant talked to someone on a cell phone. Eventually defendant gave the witness the phone and the person on the other end directed the witness to drive defendant to downtown Fresno. The witness dropped defendant off and defendant got into a waiting car. The driver of the waiting car, Ricardo Hernandez, gave the witness $40, and then drove off.
Hernandez offered to take defendant to St. Agnes Hospital, but defendant declined because he said he had ticket warrants. Hernandez took defendant to Madera Community Hospital instead.
The day after the accident, defendant was interviewed at Madera Community Hospital by the police. He expressed remorse at the victims death and said repeatedly that he did not mean to do it. He told the police that a Chinese man driving a white Dodge Neon brandished a gun at him and then chased him to the intersection of Fig and Central. Defendant said he slammed on his brakes when he saw a truck coming up to the intersection, but the Neon went on through the intersection. He told the police that he ran from the scene because he was told by a witness that he killed a woman and he was scared.
Defendant was later interviewed by a California Highway Patrol (CHP) officer. Defendant told the CHP officer that a Chinese man had committed a drive-by shooting in defendants neighborhood. Defendant said the Chinese man came by defendants house in a white Dodge Neon and then followed defendant out toward Fig and Central. The Chinese man pulled up alongside defendant while they were driving and pointed a gun at him. Defendant said he had accelerated to 90 miles per hour at this point.
Three days following the accident, defendant was again interviewed by the CHP officer. Defendant went to the CHP office where the officer was listening to a recorded interview of Miguel Silvas, a friend of defendant. Defendant walked into the office while the interview was playing on the officers computer. When defendant recognized Miguels voice, he admitted that he had fabricated the story about the Chinese man with the gun. He told the officer that Miguel had been driving the white car next to defendants, but he would not admit that he and Miguel were racing.
Defendant was charged with second degree murder (Pen. Code, § 187, subd. (a)), vehicular manslaughter (§ 192, subd. (c)(1)), leaving the scene of an accident (Veh. Code, § 20001, subd. (a)), two counts of reckless driving with great bodily injury (Veh. Code, § 23104, subd. (b)) and driving with a suspended license (Veh. Code, § 14601.2, subd. (a)). He entered a plea of no contest to the Vehicle Code violations, but he went to trial and was found guilty of murder and vehicular manslaughter. The trial court sentenced defendant to 15 years to life in prison, plus three years eight months pursuant to the plea agreement.
All statutory references will be to the Penal Code unless otherwise specified.
DISCUSSION
I. Jury Instruction
Defendant contends that the trial court erred by not giving a definition of "conscious disregard" in its instructions to the jury. This argument is without merit.
In instructing the jury on the charge of murder, the trial court employed CALJIC No. 8.11, which says in part, "Malice is implied when: [¶] (1) The killing resulted from an intentional act; [¶] (2) The natural consequences of the act are dangerous to human life; and [¶] (3) The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life." The court also used CALCRIM No. 200 (Judicial Council of Cal. Crim. Jury Instns. (2006-2007)) to clarify the meaning of phrases used in the jury instructions. The relevant part of CALCRIM No. 200 reads, "Words and phrases not specifically defined in these instructions are to be applied using their ordinary, everyday meanings."
Because defendant was charged with both murder and vehicular manslaughter, the trial court employed a special jury instruction to explain the difference between the subjective nature of implied malice and the objective nature of gross negligence. The jury was told that to find implied malice, it must find that defendant "actually" appreciated the risks involved, whereas for gross negligence, the jury must only find that a reasonable person in defendants shoes would have been aware of the risks.
The case law on this issue is well settled. In People v. Dellinger (1989) 49 Cal.3d 1212 (Dellinger), the California Supreme Court advised that instead of instructing with both the wanton disregard for human life and the conscious disregard for human life instructions, the better practice would be to use only the conscious disregard instruction. (Id. at p. 1221.) The court thought "wanton" was not common in everyday speech and the instruction would be clearer if the "straightforward language" of "conscious disregard" were utilized instead. (Ibid.) The court believed this single instruction would be more comprehensible to the average juror. (Id. at p. 1222.)
In several cases after Dellinger, the Supreme Court reiterated the standard of using conscious disregard as the definition for implied malice. (See, e.g., People v. Randle (2005) 35 Cal.4th 987, 994; People v. Taylor (2004) 32 Cal.4th 863, 867-868; People v. Lasko (2000) 23 Cal.4th 101, 107; People v. Hansen (1994) 9 Cal.4th 300, 308.) In People v. Knoller (2007) 41 Cal.4th 139, the trial court, deciding a motion for new trial, erroneously applied the Thomas standard to determine whether the defendant subjectively knew that her conduct had a high probability of death. (Knoller, supra, at p. 157.) The Supreme Court reiterated that the test of high probability was not the definition of implied malice and that the court should have used the definition of conscious disregard from Dellinger. (Knoller, supra, at p. 157.) In none of its holdings has the California Supreme Court ever required that CALJIC No. 8.11 include a definition of conscious disregard, suggesting that the phrase alone suffices.
People v. Thomas (1953) 41 Cal.2d 470.
In this case, the CALCRIM No. 200 instruction to the jury made it clear that since no special definition of conscious disregard existed in the instructions, the jury was supposed to apply the everyday meaning of the phrase. Moreover, the special instruction clarified any confusion between the subjective standard required by implied malice and the objective standard of gross negligence.
Defendants contention that the jury was not able to understand and apply the meaning of conscious disregard without a special definition is the equivalent of saying the average juror does not know the plain everyday definitions of the words "conscious" and "disregard." In light of the instructions given to the jury in this case and the precedent reiterated by the California Supreme Court, we reject this argument out of hand. The trial courts failure to give a definition of conscious disregard was not error.
Given that there was no error in the jury instructions, it was not ineffective assistance of counsel for trial counsel not to request a definition of conscious disregard. (Strickland v. Washington (1984) 466 U.S. 668, 692-694.)
II. Mental Deficiency Defense
Defendant argues that trial counsel was ineffective for not investigating the viability of using defendants possible mental retardation as a means to attack the mental state requirement for murder.
As a threshold issue, the People assert that the argument is moot because it is a diminished capacity defense barred by section 25, subdivision (a). However, section 28, subdivision (a) does allow a defendant to raise issues of mental deficiency for the purposes of attacking whether the defendant actually formed the requisite intent required by the specific intent crime charged. Second degree implied malice murder is a specific intent crime. (People v. Reyes (1997) 52 Cal.App.4th 975, 982-986.) "[I]f a crime requires a particular mental state, the Legislature cannot deny a defendant the opportunity to prove he did not entertain that state." (People v. Bobo (1990) 229 Cal.App.3d 1417, 1442.) Implied malice murder requires a showing that defendant knew of a risk to human life and consciously chose to disregard that risk. (People v. Lasko, supra, 23 Cal.4th at p. 107.) Defendant is entitled to attack the requisite mental state of knowledge by introducing evidence that because of mental deficiency, he did not have the required knowledge at the time of the accident. Such a defense is not barred by section 25.
Every criminal defendant is entitled to constitutionally adequate legal assistance. (People v. Frye (1998) 18 Cal.4th 894, 979.) To succeed on a claim of ineffective assistance, a defendant must show that "counsels representation was `deficient in that it `fell below an objective standard of reasonableness." (Ibid.) There is, however, "a `strong presumption that counsels conduct falls within the wide range of reasonable professional assistance [citations], and we accord great deference to counsels tactical decisions. [Citation.] Were it otherwise, appellate courts would be required to engage in the `"perilous process" of second-guessing counsels trial strategy. [Citation.] Accordingly, a reviewing court will reverse a conviction on the ground of ineffective counsel `only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission. [Citations.]" (Id. at pp. 979-980.)
Additionally, "a defendant is required to show he or she was prejudiced by counsels deficient representation. [Citations.] In determining prejudice, we inquire whether there is a reasonable probability that, but for counsels deficiencies, the result would have been more favorable to the defendant. [Citations.]" (People v. Frye, supra, 18 Cal.4th at p. 979.)
However, our ability to evaluate trial counsels purported deficiency is diminished when the record fails to reveal the "basis of counsels decision, and ... that decision is not one for which there could be no satisfactory explanation." (People v. Hart (1999) 20 Cal.4th 546, 589, fn. 8.) As the Supreme Court has repeatedly stressed, "`"[i]f the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] ... unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation," the claim on appeal must be rejected. [Citation.] A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding. [Citations.] `[The court] recommended in [People v.] Pope [(1979) 23 Cal.3d 412] that, "[t]o promote judicial economy in direct appeals where the record contains no explanation, appellate counsel who wish to raise the issue of inadequate trial representation should join a verified petition for writ of habeas corpus." [Citation.] Because claims of ineffective assistance are often more appropriately litigated in a habeas corpus proceeding, the rules generally prohibiting raising an issue on habeas corpus that was, or could have been, raised on appeal [citations] would not bar an ineffective assistance claim on habeas corpus." (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
Here, the record is sparse in its explanation of defendants mental deficiencies. Even with the short declaration from trial counsel that he noticed nothing abnormal in defendants mental capacity, we cannot glean from the record whether trial counsels failure to pursue a mental deficiency defense was reasonable or not. It is easily conceivable that counsel did not pursue such a defense because he had no reasonable means of knowing of defendants mental deficiencies. On the other hand, perhaps trial counsel simply failed to notice what a reasonable person in his shoes should have observed. The record of defendants mental retardation and trial counsels declaration is too thin for us to draw a reasonable conclusion either way. Because we cannot say there could be no satisfactory reason explaining counsels failure, we are compelled to permit counsel an opportunity to present his justifications for not pursuing a mental deficiency defense. Defendants ineffective assistance claim fails on direct appeal and is properly considered in a habeas corpus proceeding.
The doctors report on defendants mental retardation admits that its findings were preliminary and more investigation was required. Given the nature of defendants claim that trial counsel was inadequate, we are unwilling to conclude from a preliminary report alone that trial counsel was on notice of defendants mental deficiencies since we cannot determine the extent of those deficiencies from the record.
III. Trial Counsels Closing Argument
Defendant contends that trial counsels closing argument constituted ineffective assistance and prejudiced defendant before the jury. We disagree.
The United States Supreme Court has said that effective assistance of counsel extends to closing arguments (Yarborough v. Gentry (2003) 540 U.S. 1, 5 (Yarborough)) and that the purpose of closing arguments is for counsel to sharpen and clarify the issues the jury must decide (Herring v. New York (1975) 422 U.S. 853, 862). We defer to trial counsels tactical decisions when reviewing a claim of ineffective assistance of counsel. (People v. Wright (1990) 52 Cal.3d 367, 412.)
Defendant takes great issue with the beginning of trial counsels closing argument where he apologized to the jury for having to deal with matters in his argument that "dont have a lot to do with the case." Such a statement is completely in line with the Supreme Courts ruling in Yarborough. There the court said that bringing up irrelevant issues can be an effective tactic because it reminds the jury that the issues are indeed irrelevant. (Yarborough, supra, 540 U.S. at p. 9.) In addition, such an apology builds rapport with the jury and might keep the jury attentive to trial counsels argument.
Defendant further contends that trial counsel called him a liar and presented no defense whatsoever. This is a false characterization of trial counsels closing argument. Trial counsel did concede that defendant ran from the scene of the accident but went on to say that fact, in and of itself, did not mean anything as far as defendants guilt. Trial counsel did not call defendant a liar but commented on defendants lies to police to demonstrate a flaw in the logic of the prosecutions case. Conceding that defendant lied to police did not necessarily constitute ineffective assistance of counsel. (People v. Cain (1995) 10 Cal.4th 1, 30-31; People v. Lucas (1995) 12 Cal.4th 415, 446.) Trial counsel pointed out that the prosecution introduced defendants lies to hurt his credibility but also used defendants own statements to buttress the case against him. Trial counsel argued that the prosecution could not have it both ways, characterizing defendant as a liar while using his own statements as credible evidence. Given the weight of the prosecutions evidence, it would have been disingenuous for trial counsel to dispute defendants false statements to the police. (Lucas, supra, at p. 447.) Instead, conceding the lies allowed trial counsel to attack the logical consistency of the prosecutions case.
From the record, we conclude that trial counsel presented a valid argument to the jury and that the decisions challenged by defendant were tactical decisions in which trial counsel had legitimate reasons for doing what he did. Because the issue on appeal is one of tactics, we defer to the decisions of trial counsel and conclude that there was no ineffective assistance of counsel in the closing argument.
IV. Admission of Autopsy Photograph
Defendant contends that the single autopsy photograph displayed to the jury was cumulative and unduly prejudicial. We reject this argument.
Admission of photographs as evidence is at the discretion of the trial court and will not be overturned on appeal without a showing of abuse of discretion where the probative value of the photograph is outweighed by its prejudicial effect. (People v. Bolin (1998) 18 Cal.4th 297, 319.) The prosecution is not required to accept antiseptic stipulations from trial counsel as a means to block the introduction of photographs. (People v. Scheid (1997) 16 Cal.4th 1, 16.) Photographs serve to clarify the testimony of witnesses. (People v. Crittenden (1994) 9 Cal.4th 83, 132.) In Crittenden the court ruled that the jury had a right to see the physical details of the crime scene. (Id. at p. 133.) In addition, the autopsy photographs in Crittenden were highly probative as to the degree of force used on the victims. (Id. at p. 134.)
In People v. Allen (1986) 42 Cal.3d 1222, the court found the autopsy photographs introduced to be cumulative. (Id. at p. 1257.) Two different doctors testified about the injuries the victim sustained and their testimonies were both highly detailed and uncontested. (Ibid.) The court, however, did not believe that admission of the photographs was an abuse of discretion. It noted that the photographs were small and not "exceptionally" gruesome and their cumulative nature was harmless because the evidence against the defendant was overwhelming. (Ibid.)
The photograph in the present case was used twice. It was first introduced during the testimony of a CHP officer who found the victim at the scene. The photograph was designed to depict the victims condition at the scene. It was referenced again to supplement the testimony of the forensic pathologist, Dr. Gopal. The photograph was used to connect the autopsy findings with the victim by showing the person described in the autopsy report was the same person identified by the CHP officer. The photographs use during Dr. Gopals testimony was part of a stipulation between trial counsel and the prosecution. By stipulating to Dr. Gopals testimony regarding how the victim died, trial counsel limited the extent of Dr. Gopals testimony and prevented multiple photographs of the victim from being introduced.
Dr. Gopal did not personally testify at trial but his findings were read to the jury by the prosecution. The testimony itself was only a few sentences in length and, though technical, was not highly detailed. The testimony simply enumerated the injuries the victim suffered. Given the nature of the testimony, the photograph helped visually illustrate the technical information in Dr. Gopals statement. The photograph included only the victims face and was not unduly gruesome. Because there was an issue in the case as to how fast defendant was traveling when he hit the victim, a visual representation of the victims injuries was probative as to the amount of force at impact required for the victim to sustain such injuries.
The photograph was used both for identification purposes and to illustrate the nature of the victims injuries. We conclude that the photographs probative value outweighed any prejudice and that the trial court did not abuse its discretion in admitting the photograph.
Because there was no prejudice in admitting the photograph, trial counsels failure to object to its admission was not ineffective assistance. (Strickland v. Washington, supra, 466 U.S. at pp. 692-694.) Trial counsel is "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Id. at p. 690.) It is likely trial counsels tactical decision to stipulate to the photograph prevented the jury from hearing more detailed testimony from Dr. Gopal and seeing more photographs of the victim.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
Wiseman, Acting P.J.
Levy, J.