Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F04904894-3. Gary D. Hoff, Judge.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Alice Su, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, Acting P.J.
A jury convicted Jesse Lawrence Gonzales of first degree murder in the stabbing death of Larry L. Trevino. (Pen. Code, §§ 187, subd. (a), 189.) Gonzales admitted he killed Trevino, but claimed he acted in a fit of rage after Trevino made an unwanted sexual advance.
All further statutory references are to the Penal Code unless otherwise noted.
Gonzales argues there was not substantial evidence that the murder was the result of deliberation, premeditation, and malice aforethought. He also argues his trial counsel was ineffective because counsel’s attempts to introduce psychological testimony were unsuccessful. We reject Gonzales’s assertion that trial counsel was ineffective since he cannot demonstrate any prejudice as a result of the exclusion of his proposed expert’s testimony. We agree with Gonzales, however, that there was not substantial evidence to support the jury’s conclusion that the murder was the result of deliberation and premeditation. We will reverse the first degree murder conviction and remand the matter to the trial court with directions to enter a conviction of second degree murder and resentence Gonzales accordingly.
FACTUAL AND PROCEDURAL SUMMARY
Harold D. Willhoite lived in the apartment adjacent to Trevino. He described Trevino as friendly and open about his homosexuality. On the night of the murder, Willhoite woke up to the sounds of two loud male voices, some banging, and a loud stereo. One of the men, not Trevino, stated in a loud voice, “Oh, you want to play fuck, fuck.” The noise quieted down shortly thereafter, and Willhoite again fell asleep. The following morning Willhoite noticed drops of blood on the walkway located in front of both his and Trevino’s apartments.
Benito C. Hernandez, Jr., one of Trevino’s friends, discovered Trevino’s body three days after the murder. He confirmed that Trevino had been open about his sexuality. Olivia Trevino, Trevino’s mother, testified that after the murder several pieces of Trevino’s jewelry, his cell phone, and a DVD player were missing from Trevino’s apartment.
Jacky Parks, a detective with the Fresno Police Department, investigated the scene of the murder. He observed red drops that appeared to be blood on the walkway in front of Trevino’s apartment. Inside Trevino’s apartment, Parks also observed what appeared to be blood on the entryway floor, door handle, living room carpet, couch, coffee table, phone, floor and walls of the hallway leading to the bedroom, bedroom door and throughout the bedroom, and in the bathroom. Detective Solomen Wells opined that based on the blood evidence, the bleeding began in the living room on the couch and proceeded down the hallway to the bathroom and bedroom. The parties stipulated that the DNA extracted from the blood smears on the doorknob and entryway floor matched Gonzales’s DNA.
The pathologist identified 32 stab wounds to Trevino’s body, primarily to the chest and abdominal areas. He also identified numerous defensive wounds on Trevino’s hands. Trevino’s blood-alcohol level was 0.20 percent, and there were no illegal drugs in his system. Numerous internal organs were damaged, including the heart. Trevino also suffered blunt force trauma to his head. Death was attributed to multiple stab wounds.
Michele Ochoa, the lead detective in this case, testified that several calls were made on Trevino’s cell phone shortly after the murder. These calls were to Margarita Cebreros, to the home of Gonzales’s stepmother, where his stepbrother resided, to Gonzales’s friend, Jesse Hernandez, and to Gonzales’s mother, Bertha Gonzales. These phone calls led Ochoa to Gonzales.
Hereafter we refer to Bertha Gonzales by her first name, not out of disrespect but to avoid any confusion to the reader.
Cebreros, Gonzales’s girlfriend around the time of the murder, testified she received two phone calls from Gonzales on the night of the murder. In these calls, Gonzales said he stabbed someone and the victim died. Gonzales was crying and sounded scared. Gonzales stated he did not know why he had stabbed the victim. Cebreros did not know what to do, so she did nothing.
Carla Jimenez, Bertha’s friend, received a phone call from Bertha in the early morning hours after the murder. Gonzales and his uncle were fighting when Jimenez arrived. After breaking up the fight, Jimenez asked Gonzales why he was upset. Gonzales said he thought he had killed someone. At Bertha’s request, Jimenez drove Gonzales to a nearby location. Before they left, several items were placed in the trunk of Jimenez’s vehicle, including something like a CD player and some beer cans. These items had been in a grocery store shopping cart that was located inside the house. Also at Bertha’s request, Jimenez destroyed all of the items that had been put in her trunk.
Gonzales testified that on the night of the murder, he made arrangements with his stepbrother to pick him up at a nearby store. The store was closed, so Gonzales waited outside for approximately one hour. It was late at night and there was very little traffic, either vehicular or pedestrian. Although he knew it was unlikely his stepbrother would come by to pick him up after such a long wait, Gonzales waited at the store because he did not want to go home. Gonzales did not want to walk to his stepbrother’s house because he was dressed in gang colors, and he was concerned about a possible conflict with a rival gang.
While he was waiting, Gonzales saw a male walking down the street. This person, Trevino, eventually approached Gonzales and sat nearby. Gonzales did not know Trevino. A conversation ensued wherein both individuals stated they were waiting for someone to pick them up. Eventually, Trevino invited Gonzales to his nearby apartment to drink some beer. Gonzales, lacking a more attractive alternative, agreed to accompany Trevino.
When they arrived at the apartment, both men consumed several cans of beer and listened to some music. At this point, Gonzales testified that he did not realize that Trevino was gay. At some point during the night, Trevino touched Gonzales on the inner thigh and tried to kiss him. Gonzales became enraged and hit Trevino several times. Trevino fought back. Gonzales pulled out the knife he always carried and stabbed Trevino numerous times. Gonzales stated that during the attack he felt “real hot and everything just started moving real fast.” “I was mad. I was just, I don’t really -- I don’t really know. I was just mad and just felt like, I mean, what the fuck, you know? It’s like I ain’t gay. And I just started stabbing him.” When asked to describe his state of mind, Gonzales responded, “At that point I didn’t -- I couldn’t really -- I couldn’t really feel anything. It was just like everything was moving so fast. Like during the whole time as soon as he tried to kiss me everything just went, not blank, but it’s kind of like there was no sound, you know. Just like I was kind of like just watching something happen, but I knew what was going on, but I couldn’t really stop nothing. I couldn’t control, so I just seen myself stabbing him. And then the next thing you know he goes into the bedroom. I walk behind him and he’s laying on the bed.”
Gonzales’s state of mind changed when he realized that Trevino was dead. “At that point everything starts to slow down and I kind of just like, it’s not hot no more. It’s cold. And I’m just looking around and everything starts slowing down. It’s like everything was just spinning and now everything is just coming to a halt. And I look at him and I’m just standing there and I know I did something wrong. I knew I killed him and I was scared. I started getting worried. The only thing I could think of was like just going to prison for the rest of my life and I started just to panic. I looked at the blood. I looked at my hands. I looked at him. Just at that point I didn’t know how I came to be in that situation. It was hard for me to take it all in at that time.”
Gonzales walked around the apartment for a short while in a confused state and then picked up Trevino’s cell phone and started making phone calls trying to find someone to help him. The only completed phone call was to Cebreros. Gonzales told Cebreros that he had killed Trevino, but Cebreros refused to come pick him up. Gonzales stated he was very upset during this phone conversation and was crying while talking to Cebreros.
Gonzales realized he was on his own. He noticed a shopping cart in the complex and brought it inside Trevino’s apartment. He put all of the things that he thought he had touched into the shopping cart, including the CD player, some beer cans, and some cigarette butts. He went to the bathroom to check his appearance and saw some of Trevino’s jewelry on the counter. He took the jewelry and the shopping cart, left the apartment, and walked to his mother’s house. The rest of his testimony essentially was similar to the other witnesses.
Willhoite explained that grocery carts were kept at the complex for the tenants’ use when they walked to a nearby grocery store.
Gonzales called two additional witnesses in an attempt to support his testimony. John McCrery, a police officer with the Fresno Police Department, testified that in 1990 he was involved in an undercover operation designed to locate individuals who were soliciting lewd acts in public places. His task in the operation was to park his vehicle and wait. On the night in question, a vehicle drove past McCrery’s undercover vehicle several times and then parked in front of his vehicle. Trevino, the sole occupant of the second vehicle, exited his vehicle, approached McCrery, and started a conversation. McCrery eventually asked Trevino what he wanted. Trevino stated he was looking for whatever he could get, something fun and exciting. The conversation continued, with McCrery again asking Trevino what he wanted. Trevino reached into the car, briefly touched McCrery’s groin area, and said, “How about that.” Trevino was arrested for committing a lewd act in public.
Gonzales also presented testimony from an individual who had a romantic relationship with Trevino about one year before Trevino was killed. During this time the two often would go to various bars and nightclubs. This witness explained that when Trevino drank alcoholic beverages, he tended to become sexually aggressive with other males, both homosexual and heterosexual.
The third amended information charged Gonzales with murder, in violation of section 187, subdivision (a). The information also alleged two special circumstances applied to the crime -- murder committed during a burglary (§ 190.2, subd. (a)(17)(G)) and murder committed during a robbery (id., subd. (a)(17)(A)). Finally, the information alleged that Gonzales personally used a dangerous or deadly weapon during the commission of the crime within the meaning of section 12022, subdivision (b)(1).
The information also charged Gonzales with robbery. This count was dismissed on the motion of the People when the document was filed.
The prosecution argued Gonzales was guilty of murder in the first degree. Gonzales argued that he acted in a rage, not with malice aforethought, and thus was guilty of only voluntary manslaughter.
The jury found Gonzales guilty of first degree murder and found the arming enhancement true. The jury found the special-circumstance allegations (murder during a burglary or a robbery) not true. Gonzales was sentenced to the mandatory term of 25 years to life for the murder (§ 190, subd. (a)) and a one-year determinate term for the enhancement (§ 12022, subd. (b)(1)).
DISCUSSION
I. Sufficiency of the Evidence
Gonzales argues the evidence was insufficient to support the jury’s conclusion that he committed first degree murder.
Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) Murder can be either of the first or second degree. Section 189 provides that all murders are of the second degree unless specific circumstances are found to be true by the jury using the beyond-a-reasonable-doubt standard.
The People argued Gonzales could be convicted of first degree murder under either of two theories. First, the People claimed the murder was a willful, deliberate, and premeditated killing. Second, the People relied on a felony-murder theory, arguing that the murder was committed during either a robbery or a burglary. Each of the People’s theories is included in section 189 as the type of circumstance that will support a first degree murder conviction. Gonzales argues that the People’s theories were not supported by substantial evidence.
The jury rejected the felony-murder theories when it returned a verdict finding the special-circumstance allegations not true. (See People v. Chatman (2006) 38 Cal.4th 344, 389.) Therefore, the issue is whether there was substantial evidence to support the theory that Gonzales murdered Trevino with deliberation and premeditation. (People v. Johnson (1993) 6 Cal.4th 1, 42, overruled on other grounds in People v. Rogers (2006) 39 Cal.4th 826, 876.)
The People argue that some members of the jury could have relied on a felony-murder theory in reaching the first degree murder verdict. This is so, according to the People, because the jurors were not required to agree on the theory of the murder, only that Gonzales committed first degree murder. The presence of the special-circumstance findings establishes the People’s argument has no merit. As the People point out in their brief, the jury was instructed that it “must return a verdict form stating true or not true on each special circumstance on which you all agree. [¶] In order for you to return a finding that a special circumstance is or is not true, all twelve of you must agree.” Pursuant to this instruction, when the jury determined that the special circumstances of robbery and burglary were not true, it was informing the trial court that all twelve jurors agreed the murder was not committed during a burglary or a robbery.
“In reviewing the sufficiency of the evidence of premeditation and deliberation, we assess whether the evidence supports an inference that the killing occurred as the result of preexisting reflection, as opposed to an unconsidered or rash impulse. [Citation.] We do not substitute our judgment for that of the jury. Rather, we must draw all inferences in support of the verdict that can reasonably be deduced and must affirm the judgment if, after viewing all the evidence in the light most favorable to the prosecution, any rational jury could find premeditation and deliberation beyond a reasonable doubt. [Citations.]” (People v. Garcia (2000) 78 Cal.App.4th 1422, 1427.) “[T]he judgment is not subject to reversal on appeal simply because the prosecution relied heavily on circumstantial evidence and because conflicting inferences on matters bearing on guilt could be drawn at trial.” (People v. Millwee (1998) 18 Cal.4th 96, 132.)
“An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse. [Citation.] However, the requisite reflection need not span a specific or extended period of time. ‘“‘Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly....’”’ [Citation.]” (People v. Stitely (2005) 35 Cal.4th 514, 543 (Stitely).) “The law does not require that an action be planned for any great period of time in advance.” (People v. Rand (1995) 37 Cal.App.4th 999, 1001.) “Premeditation and deliberation are not to be confused with a deliberate intent to kill. Premeditation and deliberation require ‘substantially more reflection; i.e., more understanding and comprehension of the character of the act than the mere amount of thought necessary to form the intention to kill.’ [Citation.] It is therefore ‘obvious that the mere intent to kill is not the equivalent of a deliberate and premeditated intent to kill.’ [Citation.] Consequently, an intentional killing is not first degree murder unless the intent to kill was formed upon a preexisting reflection and was the subject of actual deliberation and forethought. [Citation.]” (People v. Van Ronk (1985) 171 Cal.App.3d 818, 822-823.)
When deciding whether the evidence supports the jury’s conclusion that a murder was committed with premeditation and deliberation, “Appellate courts typically rely on three kinds of evidence … motive, planning activity, and manner of killing. [Citations.] These factors need not be present in any particular combination to find substantial evidence of premeditation and deliberation. [Citation.] However, ‘[w]hen the record discloses evidence in all three categories, the verdict generally will be sustained.’ [Citation.]” (Stitely, supra 35 Cal.4th at p. 543.) These categories, however, “are descriptive, not normative. ‘The goal of [People v.] Anderson [(1968) 70 Cal.2d 15] was to aid reviewing courts in assessing whether the evidence is supportive of an inference that the killing was the result of preexisting reflection and weighing of considerations rather than mere unconsidered or rash impulse.’ [Citations.]” (People v. Davis (1995) 10 Cal.4th 463, 511 (Davis).) “For example, notwithstanding Anderson, supra, 70 Cal.2d at pages 26-27, the method of killing alone can sometimes support a conclusion that the evidence sufficed for a finding of premeditated, deliberate murder. [Citation.]” (People v. Memro (1995) 11 Cal.4th 786, 863-864.)
Gonzales argues that none of the Anderson factors was present in this case. In making his argument, he relies primarily on his own testimony. The jury, however, could have rejected this testimony. Gonzales attempted to conceal his involvement in the murder by removing all items from the apartment that he had touched. He also left the country in an effort to elude investigating officers. When he was arrested approximately one year after the murder, Gonzales claimed he knew nothing about Trevino’s death. (Stitely, supra, 35 Cal.4th at p. 542.) The jury could have concluded that these actions cast serious doubt on Gonzales’s credibility.
Viewed in a light most favorable to the judgment, the remaining evidence establishes that at 2:00 or 3:00 a.m. Gonzales was sitting by himself near a closed store when he saw Trevino pass by. While Gonzales claimed he did not realize Trevino was gay, several witnesses described Trevino as “obviously gay.” While we are unsure what that meant, the jury could have inferred that Gonzales suspected Trevino was gay when he was approached by Trevino.
It appears clear that Gonzales was invited into Trevino’s apartment. There was no evidence that anyone broke into the apartment. It also appears that Trevino and Gonzales did not know each other as there was no evidence that would permit a contrary conclusion. The only testimony on this issue was from Gonzales, who claimed he had not met Trevino before.
There was no evidence to support an inference that Gonzales intended to murder Trevino before they reached Trevino’s apartment. The only path to premeditation at this point is speculation. The issue becomes, therefore, what occurred inside the apartment.
It is clear some time passed inside the apartment before the altercation occurred. There was evidence that Trevino and Gonzales drank a few beers before any altercation occurred. It also appears that something of a sexual nature occurred. Trevino’s neighbor, Willhoite, heard Gonzales state in a loud voice, “Oh, you want to play fuck, fuck.” This statement was made after Willhoite was awakened by noise emanating from Trevino’s apartment. Willhoite heard both banging on the walls of Trevino’s apartment, as if two men were fighting, and loud music emanating from Trevino’s apartment. At the time of trial, some three years after the incident, Willhoite was unsure whether he was awakened by the banging on the walls or by the music. In either event, the statement occurred after Willhoite was awakened. The ruckus in Trevino’s apartment lasted two to three minutes, and then quieted down. Willhoite then went back to sleep.
We know it was Gonzales who made this statement because there was no evidence that anyone was inside the residence other than Gonzales and Trevino, and Willhoite testified that the statement was not made by Trevino.
The pathologist’s testimony also is relevant. He testified that Trevino was stabbed 32 times and that he suffered blunt force trauma to his head. The rest of the evidence relating to what occurred inside the apartment came from Gonzales.
Relying only on the independent evidence, the following summary represents the only plausible explanation of what occurred on the night of the murder. Once Gonzales was invited into Trevino’s apartment, the two shared some beverages and listened to music. Something of a sexual nature then occurred that caused a fight between Trevino and Gonzales. The altercation apparently started as a fistfight since Trevino was struck on the head several times. Sometime during the fight Gonzales pulled out his knife and stabbed Trevino 32 times. Clearly, Trevino was defending himself, as he suffered defensive stab wounds on his hands. In addition, Gonzales cut his hand on the knife, again indicating a struggle between Trevino and Gonzales. The entire fight, which was over in something less than five minutes, occurred inside the living room of Trevino’s apartment.
There is nothing in Gonzales’s testimony that contradicts these independently verifiable facts and the reasonable inferences that can be drawn therefrom. The issue, therefore, is whether these facts can support a reasonable inference of premeditation. To answer this question, we turn to the Anderson factors: motive, planning, and method of killing.
The evidence on motive to support a finding of premeditated murder was nonexistent. The encounter between Trevino and Gonzales started out as a friendly meeting. The two met on a street corner, went to Trevino’s apartment, listened to music, and drank a few beers. Clearly, Gonzales could not have been sitting on that street corner planning to murder Trevino. Nor was there any evidence that Gonzales was planning a murder that night, waiting for any possible victim. Nor was there any evidence that Gonzales was homophobic and decided to kill Trevino simply because Trevino was gay. In other words, prior to entering the apartment, there was no evidence that would support any possible motive for the murder. One would have to resort to speculation to conclude otherwise.
Once inside the apartment, we have some evidence of motive: the comment overheard by Willhoite. Again, this comment suggests something of a sexual nature occurred that caused Gonzales to react violently. But this statement, the only evidence from which one could infer a motive, must have been made during the fatal struggle. Therefore, this motive evidence does not support a finding of premeditation.
Evidence of planning was equally lacking. There was no evidence that prior to entering the apartment that Gonzales had decided to, and was planning to, kill Trevino. The two met by chance. Nor did the activities in the apartment suggest a plan to kill. Trevino apparently invited Gonzales into the apartment. Music was turned on and the two shared a few beers. These facts do not support a finding of planning.
The altercation started as a fistfight and escalated into a stabbing. If Gonzales was planning on murdering Trevino, the use of fists would have been unnecessary. A much more efficient manner of killing was to proceed directly to a knife attack. The noise made during the attack, the pounding on the walls, and the statement made in a loud voice during the attack suggest a complete lack of planning. The presence of the knife does not aid the analysis. Gonzales testified he always carried the knife for protection, and there was no evidence to the contrary.
While it is true that the method of killing may, in and of itself, provide sufficient evidence of premeditation, this is not such a case. People v. Hawkins (1995) 10 Cal.4th 920 provides an example of a case where the method of killing establishes premeditation and demonstrates why Trevino’s murder does not fall into this category.
Overruled on other grounds in People v. Lasko (2000) 23 Cal.4th 101, 109-110.
“The unrefuted testimony of a forensic expert showed that [the victim] was shot twice, once in the back of the head near the base of the skull and once in the back of the neck. According to the pathologist’s examination of the burned and unburned gunpowder residues found on [the victim’s] body, one of the shots was fired from a close range, between three and twelve inches away. The angle of entry and the downward trajectory of the bullets through [the victim’s] body suggest that the position of the gun was somewhere above his head. As defendant was several inches shorter than [the victim], it could be reasonably surmised that [the victim] may have been crouching or kneeling at the time the shots were fired. The manner of the killing clearly suggests an execution-style murder.
“Moreover, there was little if any evidence of struggle, except for a single scratch on [the victim’s] throat, that might lend support to the hypothesis that the murder occurred on impulse or in a rage. There were no signs that [the victim] had struggled with his assailant. The relatively superficial abrasions on the face and neck are consistent with the victim’s fall forward after having been shot in the back of the head. A trier of fact could have concluded from such evidence that the … murder was committed with premeditation and deliberation.
“Defendant contends that [Anderson] supports his argument that evidence of premeditation and deliberation was insufficient in this case. In Anderson we identified three types of evidence used to sustain a finding of premeditation. These were: ‘(1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing -- what may be characterized as “planning” activity; (2) facts about the defendant’s prior relationship and/or conduct with the victim from which the jury could reasonably infer a “motive” to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that the killing was the result of “a pre-existing reflection” and “careful thought and weighing of considerations” rather than “mere unconsidered or rash impulse hastily executed” [citation]; (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a “preconceived design” to take his victim’s life in a particular way for a “reason” which the jury can reasonably infer from facts of type (1) or (2).’ [Citation.] The Anderson court concluded that ‘this court sustains [a first degree murder conviction] when there is evidence of all three types and otherwise requires at least extremely strong evidence of (1) or evidence of (2) in conjunction with either (1) or (3).’ [Citation.] Defendant claims that there was no evidence of planning and motive, and that, under Anderson, manner-of-killing evidence alone is insufficient to prove beyond a reasonable doubt premeditation and deliberation.
“Defendant’s reliance on Anderson, however, is of no avail. As this court recently stated, ‘The Anderson analysis was intended only as a framework to aid in appellate review; it did not propose to define the elements of first degree murder or alter the substantive law of murder in any way.’ [Citation.] The Anderson guidelines were formulated as a synthesis of prior case law, and are not a definitive statement of the prerequisites for proving premeditation and deliberation in every case.
“Specifically, the Anderson court had no occasion to consider a case like the present one, in which evidence of the manner of killing strongly pointed to an execution-style murder. Anderson recognized that manner-of-killing evidence is often ambiguous, and frequently cannot be relied on by itself to support an inference of premeditation beyond a reasonable doubt. But Anderson did not confront the question whether manner-of-killing evidence which clearly indicates an execution-style murder was sufficient to sustain a first degree murder verdict. We have recognized elsewhere the strength of such evidence in support of a finding of premeditation and deliberation. (People v. Bloyd (1987) 43 Cal.3d 333.) In Bloyd the forensic evidence ‘described actions that were cold and calculated,’ shots to the head taken at extremely close range while one of the victims was on her back, the other kneeling, with no bruises and lacerations to show a struggle. [Citation.] Although the Bloyd court found evidence of motive as well, such evidence is not indispensable to proving premeditation when the manner-of-killing evidence is so compelling. [Citation.]
“In sum, although evidence of planning and motive was indeed minimal if not totally absent in the present case, we conclude that the manner-of-killing evidence was sufficiently strong to permit a trier of fact to conclude beyond a reasonable doubt that defendant committed the … murder with premeditation and deliberation.” (People v. Hawkins, supra, 10 Cal.4th at pp. 956-957.)
The obvious differences between Trevino’s murder and the murder in Hawkins demonstrate why the method of killing does not support a finding of premeditation, either by itself or in combination with the other evidence. Trevino’s murder was not an execution-style slaying. There were defensive wounds on Trevino’s hands, suggesting a struggle. Gonzales also injured his hand, again evidencing a struggle with Trevino. As recognized in Hawkins, such evidence suggests that murder occurred on an impulse or in a rage. It does not suggest premeditation.
In this case, the lack of evidence of motive and planning, when combined with the method of killing, all point to only one logical conclusion: the murder was not committed with premeditation. The only path the jury could have followed to reach the verdict was filled with speculation. “A judgment is not supported by substantial evidence if it is based solely upon unreasonable inferences, speculation or conjecture. [Citation.]” (In re H.B. (2008) 161 Cal.App.4th 115, 120.)
Our conclusion that there was not substantial evidence to support the jury’s conclusion that the murder was premeditated requires the first degree murder conviction be reversed. We need not remand for a new trial, however, because, as Gonzales concedes, the evidence establishes that Gonzales is guilty of second degree murder. Accordingly, we shall modify the verdict to reflect a conviction for second degree murder and remand to the trial court for sentencing consistent with the modified verdict. (§ 1181, subd. (6); People v. Cruz (1980) 26 Cal.3d 233, 242.)
II. Ineffective Assistance of Counsel
Gonzales claims he received ineffective assistance of counsel because his trial attorney failed to explain properly to the trial court why the proposed testimony of psychologist Paul S. Berg was admissible. The following testimony was obtained outside the presence of the jury in an Evidence Code section 402 hearing.
Berg reviewed various reports related to the case and met with Gonzales for approximately four to five hours. Berg interviewed Gonzales and provided him with some standardized psychological tests. Berg opined that the results of the testing suggested that Gonzales had an antisocial personality disorder that included dependent personality factors and general dysfunction. Gonzales also abused various substances and may have had an underlying schizophrenic disorder.
Based on Gonzales’s description of the events, Berg also opined that the murder occurred as a result of a perceived sexual advance by Trevino. The “advance was psychologically incomprehensible to a man like Mr. Gonzales.… That it overwhelmed his ability to think, to make decisions, to contemplate, to make choices, and he acted instinctually in this rage[] reaction leading to the death of Mr. Trevino both by blows to the head as well as by multiple stab wounds.”
We will attempt to summarize the basis for Berg’s opinion. Gonzales believed his grandmother was his mother until he was about seven or eight years old. When his mother came into his life, she exposed him to drugs, alcohol, and her multiple sex partners. Gonzales met his father when Gonzales was 15. His father was a gang member, drug abuser, and ex-convict. These factors made Gonzales a prime candidate for membership in a criminal street gang, which emphasized “extraordinary excessiveness [sic] masculinity.” Gonzales did not receive any training in empathy, or the ability to think before one acts, during his childhood. “[H]is only source of strength, emotional strength as an individual is his association with the machismo of” the gang culture. When Trevino made a sexual advance, Gonzales interpreted it as a threat to his masculinity. “It translates as if there’s something about you that’s gay, and that’s such an intolerable concept for [Gonzales] that I believe he had this rage reaction[,] sometimes known as a homosexual panic reaction, a concept that’s been known clinically since 1920 and is seen in the literature.”
The proposed testimony implicated sections 28 and 29. Section 28, subdivision (a) prohibits the admission of testimony about a mental disease, defect, or disorder for the purpose of showing or negating the capacity of a defendant to form “any mental state … with which the accused committed the act.” (Ibid.) On the other hand, section 28 permits the admission of evidence of a mental disease, defect, or disorder “solely on the issue of whether or not the accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged.” (Ibid.)
Section 29 precludes, in the guilt phase of a trial, an expert from testifying “as to whether the defendant had or did not have the required mental states … for the crimes charged.” (Ibid.) As explained in People v. Coddington (2000) 23 Cal.4th 529, 582-583, “Expert opinion on whether a defendant had the capacity to form a mental state that is an element of a charged offense or actually did form such intent is not admissible at the guilt phase of a trial. [Citation.] Sections 28 and 29 permit introduction of evidence of mental illness when relevant to whether a defendant actually formed a mental state that is an element of a charged offense, but do not permit an expert to offer an opinion on whether a defendant had the mental capacity to form a specific mental state or whether the defendant actually harbored such a mental state. An expert’s opinion that a form of mental illness can lead to impulsive behavior is relevant to the existence vel non of the mental states of premeditation and deliberation regardless of whether the expert believed appellant actually harbored those mental states at the time of the killing. [Fns. omitted.]”
Overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, footnote 13.
The trial court excluded the proposed testimony. It found the admissible portion of Berg’s testimony “may be relevant,” but expressed concern over whether Berg would be able to express his opinion without also opining about whether Gonzales actually acted with or without the mental states at issue. The trial court concluded, however, that Berg’s testimony would not assist the jury because the issue, a rage reaction to an unwanted homosexual advance, was not sufficiently beyond common experience that the testimony of an expert would assist the trier of fact. (Evid. Code, § 801, subd. (a).) The trial court also concluded that the proposed testimony should be excluded pursuant to Evidence Code section 352 because there was a substantial danger the proposed testimony would confuse the jury.
The cited authority establishes that Gonzales could have sought the introduction of evidence of his mental illness through Berg and, perhaps, through hypothetical questions, establish that his mental illness could cause the rage reaction he claimed resulted in Trevino’s death. It is the absence of an argument suggesting that Berg should have been permitted to testify on this basis that Gonzales claims resulted in ineffective assistance of counsel.
To prevail, Gonzales must establish that his attorney’s performance fell below an objective standard of reasonableness under prevailing professional norms, and that there is a reasonable probability that had counsel performed competently he would have received a more favorable outcome. (People v. Dennis (1998) 17 Cal.4th 468, 540-541.) A “‘reasonable probability’” is one that undermines our confidence in the outcome of the trial. (Ibid.)
We need not determine whether counsel’s performance was adequate in this case. Although this case presents a close call, we conclude that, even had the suggested testimony been presented, it is not reasonably likely that Gonzales would have obtained a more favorable result.
The issue Berg sought to address was thoroughly presented to the jury. Gonzales admitted he was responsible for killing Trevino but, in an attempt to reduce the crime from murder to voluntary manslaughter, argued that he acted in a rage, and not with deliberation, premeditation, or malice aforethought. This choice apparently was made before trial because in opening statements counsel admitted Gonzales’s responsibility for Trevino’s death.
The only issue from the beginning of trial, therefore, was Gonzales’s mental state at the time of the murder. He was able to introduce some evidence in support of his claim during the prosecution’s case. Gonzales elicited from Cebreros that when he (Gonzales) called on the night of the murder, he sounded scared and was crying. Cebreros also testified that Gonzales said he did not know why he had stabbed Trevino. Willhoite also provided some support by verifying that he heard a man, not Trevino, make a comment that could have been interpreted as a rejection of a sexual advance by Trevino. The heart of the defense, however, was provided by Gonzales. As the only living witness to the murder, Gonzales described his version of the events of that night, as well as his reaction to the alleged sexual advance by Trevino.
Closing argument by both attorneys focused on Gonzales’s mental state. The prosecution argued Gonzales was guilty of first degree murder on either a felony-murder theory or because the killing was deliberate, premeditated, and committed with malice aforethought. He urged the jury to reject Gonzales’s testimony as fabricated.
Defense counsel admitted the issue was whether Gonzales was guilty of first degree murder, second degree murder, or voluntary manslaughter. He argued Gonzales could not possibly have known Trevino was gay simply by looking at him, and Gonzales did not have the intent to commit robbery or burglary before the murder. Finally, he focused on whether Trevino made a sexual advance. Counsel admitted that if the jury concluded Trevino did not make a sexual advance, then the jury’s job was easy because Gonzales did not have a defense. He urged the jury, however, to find a sexual advance was made and suggested that if the jury agreed, the issue was whether Gonzales was guilty of second degree murder or voluntary manslaughter. He emphasized the testimony from witnesses that corroborated Gonzales’s testimony. He argued that all of the testimony was far more consistent with Gonzales’s testimony than with the prosecution’s theory.
Thus, the jury adequately was informed of the decision it had to make. As Gonzales’s counsel conceded, if the jury concluded that Trevino did not make a sexual advance, then there was no possible justification for the murder. The defense was based entirely on Gonzales’s reaction to the sexual advance allegedly made by Trevino.
Berg could not add anything to the facts underlying the murder, as he could rely only on what Gonzales had told him. Berg could have testified that Gonzales suffered from a mental illness and, perhaps, that individuals with a similar diagnosis were prone to violent reactions when facing a perceived challenge to their manhood. Berg also could have explained how Gonzales’s background could contribute to such a reaction. But the main issue to be decided by the jury was whether Trevino made a sexual advance and, if so, whether Gonzales’s reaction reduced his culpability for the murder. While Berg’s testimony would have touched on the second topic, we conclude the testimony would not have affected the outcome of the trial.
The difficulty Gonzales faces is the topics on which Berg could opine were not so far beyond common experience that they would have assisted the jury. As explained above, the issue was squarely in front of the jury. It was charged with deciding whether there was any possible reason to excuse Gonzales’s actions. The topics on which Berg could opine would not have changed the issue the jury was required to decide. Nor would Berg’s opinions have significantly aided the jury’s analysis. A rage reaction by a homophobic defendant is something with which an average juror would be familiar and easily could comprehend.
The jury apparently understood the issue it had to decide and had ample evidence to support any decision it made. It is unlikely that adding Berg’s testimony to the analysis would have changed the jury’s resolution of this issue. In other words, Gonzales did not suffer any prejudice as a result of counsel’s inability to convince the trial court that Berg should have been allowed to testify.
DISPOSITION
The judgment is modified to vacate the first degree murder conviction and enter a conviction for second degree murder. The enhancement pursuant to section 12022, subdivision (b)(1) for personal use of a deadly weapon is affirmed. The matter is remanded to the trial court for resentencing and the issuance of a new abstract of judgment.
WE CONCUR: HILL, J., KANE, J.