Opinion
A144846
08-30-2017
THE PEOPLE, Plaintiff and Respondent, v. STEPHANIE LORRAINE HAMASHIN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR287153)
I. INTRODUCTION
A jury convicted Stephanie Hamashin (appellant) of felony elder abuse likely to produce great bodily harm or death. (Pen. Code, § 368, subd. (b)(1).) The jury also found true an allegation that appellant proximately caused the death of the victim, appellant's 86-year-old mother. (§ 368, subd. (b)(3).) Appellant was sentenced to a 10-year prison term. On appeal, she contends she was denied the effective assistance of counsel because her trial counsel failed to utilize properly evidence that she suffers from Post-Traumatic Stress Disorder (PTSD) due to prior abuse by her mother. Appellant also contends the trial court erroneously excluded evidence that her mother hated doctors. We reject these contentions and affirm the judgment.
Statutory references are to the Penal Code, unless otherwise stated.
In a petition for writ of habeas corpus, case No. A150311, appellant attempts to challenge the competency of her counsel on a different but related ground. We have denied that petition by separate order filed this date.
II. STATEMENT OF FACTS
A. The Death of Martha Hamashin
On April 26, 2011, at approximately 8:30 p.m., Fairfield police detective Troy Oviatt was dispatched to appellant's home, in response to a report from patrol officers that a person had died there under suspicious circumstances. At the home, Oviatt found the body of appellant's mother, Martha. Appellant reported that Martha was alive when appellant got home from work, but died at around 6:45 p.m.
We use first names to distinguish between members of appellant's family.
When Oviatt walked in the home, he immediately noticed that it was "filthy, dirty." Debris, dirt, paper bags, and personal items were everywhere. Five years of built-up dust covered the objects. Every room in the house essentially was in the same condition. Oviatt also noticed a "horrific, overpowering smell of decay and rot and filth," which he likened to "rotting raw chicken or exposed sewage." The bathtub was full of water. Appellant later explained that the tub was the only working source of water, so she used that water for bathing, cooking, and to flush the toilets.
Oviatt found Martha's body on the living room floor. She looked like "a skeleton lying there with the skin tightly pulled across the bones." She wore a red shirt, but was nude from the waist down, and all of her bones were visible. Oviatt testified that Martha's body smelled "very strong, pungent, fo[u]l, rotting, decayed," like a mixture of an open sewer and rotting meat. There were 25 to 30 used diapers or pads piled around and under the body, soiled with feces, blood and pus. Near the body, Oviatt found decomposing food, but no signs of fresh food.
Jackson Harris, a deputy sheriff assigned to the coroner's office, examined Martha's body before it was moved. Harris described the body as "very cachectic, meaning there was extreme weight loss." Martha's muscles had deteriorated, there was "an incredible loss of fat," and many of her bones were visible. Harris could count "nearly every rib protruding or prominent above the skin." Once the body was moved, Jackson could see decubitus ulcers (bedsores) on the underside of the body. They were substantial in size, deep, and necrotic, meaning the tissue was rotting, and that they had not been treated. There were also bruises and abrasions coinciding with areas where there was "nothing but skin basically between the bone and the surface she was lying on."
Harris and Oviatt both testified about circumstances they observed that were indicative of neglect. Martha's hair was oily, matted and dirty; her arms, underarms and hands were covered in dirt; and there was dirt or feces encrusted under her fingernails. She had sores on her feet, head and face. There were layers of used diapers under and around her body. When the body was moved, the bedsores released "fluids, blood, [and] body tissue."
B. Appellant's Statements to Police
On the night Martha died, Detective Oviatt drove appellant to the Fairfield police station for an interview. Appellant was coherent and articulate. She told Oviatt that she was 54 years old, and she was Martha's only caregiver. Nobody but she and her mother had been inside their home in three or four years. Appellant stated that when she arrived home from work that night, she and Martha had a very short conversation about finances. They shared a bank account that appellant used for gas and groceries. Martha's Social Security checks were deposited into that account, and for the last three months Martha had needed assistance to sign those checks.
Appellant told Oviatt that Martha lost the ability to walk in March 2010, and had spent the last 13 months confined to the living room floor. Appellant stated that she did not know why Martha could not walk and had not sought any medical assistance for her. Appellant used to give Martha containers so she could relieve herself, which appellant would then dump in the toilet. However, for the last two months Martha had not been able to raise her hips, so appellant gave her pads and adult diapers, which appellant changed in the morning and in the evening when she got home from work.
Appellant said that Martha stopped eating regular meals around three months before she died. For the last month, her diet was limited to Ensure, pudding, applesauce and Jello, and for the last three weeks she was able to ingest only small amounts of food and water. Appellant said that she bathed Martha with a washcloth at least every other day and that she had taken measures to treat sores on Martha's feet when she noticed them a few days earlier. Appellant also reported that Martha's mental condition had declined in the months prior to her death.
Appellant admitted that she had never sought medical assistance for her mother at any stage of her declining condition. She explained that she had done her best under the circumstances, but she doubted other people would understand, and she was concerned about how the "authorities" would treat her. Appellant also acknowledged she had been "neglectful, inhumane and indignant," and that Martha looked like a Holocaust victim. When Oviatt told appellant that she should have called the authorities for assistance, appellant became defensive and responded that she felt like she was in a corner and did not know what to do.
The following day, on the afternoon of April 27, 2011, Oviatt interviewed appellant again. Appellant stated that a few years earlier, a coworker had told her about Adult Protective Services and she did some research about the services they provided, but she never called them. Appellant told Oviatt that she knew what bedsores were because she had watched a documentary about them. She also admitted that she had seen blood on one of the pads she used for her mother, but she was unable to determine where it came from. Appellant reiterated that she bathed Martha with a washcloth every day or every other day, but also recalled that a few days before Martha died, she groaned in pain when appellant washed her.
C. Forensic Evidence
Martha's autopsy was performed by Dr. Susan Hogan, a forensic pathologist with the Solano County Sheriff Coroner's office. Hogan concluded that Martha's cause of death was starvation and probable sepsis.
At trial, Hogan offered the expert opinion that a person cannot survive a loss of 40 percent of her body weight, and testified her finding that Martha starved to death was supported by the following circumstances: Martha was five feet two inches, and had previously weighed 140 pounds; Martha weighed 74 pounds at the time of her death, which was at least 37 percent lower than her ideal weight; her body was "essentially skin and bones"; she had "absolutely no fat or subcutaneous tissue left"; and her eyes were sunken into their sockets, which was a sign of dehydration.
Hogan's opinion that sepsis was a probable cause of death was based on the condition of two significant bed sores, both of which were infected. One sore covered an eight-by-four-inch surface area of Martha's left buttocks, and was two inches deep, exposing bone. The other sore on her right buttocks covered a three-by-nine-inch surface area and was four inches deep, exposing bone and tendon. Both sores were filled with pus, were necrotic, and were untreated, which indicated that Martha had not been moved for weeks. The condition of these sores indicated that infection had entered Martha's bloodstream and caused sepsis, which is almost always fatal.
Hogan also opined that Martha had been neglected prior to her death. Her hair and body were dirty; she had multiple layers of dead skin, which was inconsistent with being bathed every day; her nails were dirty and untrimmed; and there were areas of "skin breakdown" on her face, back and spine. She had been lying in her own excrement, she had not been rotated or moved in weeks, and she had not been fed "for a long period of time."
Dr. Arnold Josselson also testified as an expert at trial. Josselson became a forensic pathologist in 1981, had testified as an expert about a hundred times, and was the coroner pathologist for Contra Costa County when he testified in this case. Josselson reviewed the autopsy report, the police report and other pertinent records in order to formulate an opinion regarding Martha's death. Ultimately, he agreed with Hogan that Martha died from starvation and probably sepsis. Josselson also agreed that Martha had been neglected, stating "[t]here was starvation, there was dehydration, there were untreated decubitus ulcers, and there was very poor hygiene. Those are all indications of neglect."
D. Defense Witnesses
Appellant's two sisters, Patricia and Loretta, testified about their life growing up and the condition of the Fairfield home where Martha died. The family moved to that house in 1972, after Martha's husband retired from the Air Force. He died in 1984.
Patricia testified that she moved out of the family home in 1982 after she graduated from college. When she lived at home, it was sparsely furnished, the girls and their father slept on cots, and Martha slept on two beanbag chairs in the living room. Items like clothing were kept in boxes, as if the family was about to move, and the house was not clean because Martha was a hoarder. Patricia recalled that Martha became so agitated and angry when Patricia tried to clean the house that Patricia would have to leave for days or weeks because she feared for her safety. According to Patricia, Martha made all of the decisions about the upkeep of the house, and she "wouldn't allow anybody in the house ever." The plumbing in the house began to fail in the middle 1980's, but Martha would not allow anybody into the house to fix it.
Patricia testified that she moved out of the home because she was afraid of Martha. She did not return home other than for an occasional holiday visit. The last time Patricia saw Martha was around four years before her death, and at that time her mother was on the lean side because she was always busy and tended to forget to eat. Although Patricia did "[n]ot really" keep in contact with appellant, she did tell her to that if she ever needed help with their mother, she should just ask Patricia for it, but appellant never did.
Appellant's youngest sister Loretta testified that she moved out of the Fairfield home in 1989, after she was engaged to be married. Loretta's description of the home was consistent with Patricia's. She attributed the "clutter" to her mother, and also testified that her mother would become angry and violent if she tried to clean the house. Loretta and her sisters had friends, but nobody was allowed to come into the house.
Loretta testified that her mother hated doctors so much that a fight would ensue if Martha found out that Loretta had a doctor's appointment. Loretta told the jury, "[w]e used to have major fights when she found out that I had a doctor's appointment because she said that I was stupid to go because all doctors try to kill you."
Loretta testified that she saw Martha assault appellant throughout her life. Martha would jump on appellant, punch her and stomp on her, and once whipped her with a curtain rod. Martha would hit appellant and slap her face when she tried to clean the house or put dishes away. Loretta could not recall how long this abuse lasted, but testified that it certainly occurred while appellant was in high school. Martha also hit Loretta, who moved out of the family home to get away from her mother.
Loretta last saw Martha two or three years before she died. At that time, Martha was unhealthy, pale, and limping, but she could walk. She repeated herself several times, which made Loretta sad, but she appeared to be aware of her surroundings and who people were. She weighed approximately 140 pounds.
Several of appellant's friends and coworkers testified at trial about appellant's good qualities and character. They recounted positive interactions they had with appellant, which led them to conclude that she was compassionate, sympathetic and truthful. One such witness was Raymond Easton, a long time neighbor, and the father of childhood friends of the Hamashin sisters.
Easton also testified that he had been friendly with Martha, had chatted with her when she was outside gardening, and checked on her periodically. Easton last saw Martha approximately three to six months before she died when he went to her front door to check on her. Martha answered the door, opened it only a few inches, told Easton she was fine, and then closed the door. Easton could see that Martha was standing, but could not see very much of her body. Nothing about her appearance or demeanor made him think she needed outside assistance.
E. Appellant's Trial Testimony
Appellant testified that she was employed as an archivist for the California State Archives in Sacramento. She described her family background and home environment much as her sisters had: her mother did not allow guests; the house was sparsely furnished, but full of things her mother did not want to throw away. Appellant also testified that when she was growing up, her mother hit her for any number of reasons—if the house was not clean, if she was late coming home, if people called on the phone. Appellant recalled that she was only four years old the first time her mother hit her and the assaults continued throughout her life. About a year before Martha died, she tried to hit appellant because she thought appellant was not paying the bills. Appellant blocked Martha's arms, told her to stop and walked away.
Appellant testified that the plumbing in the home was "pretty much functional" until around the time her father passed away in 1984. After that, Martha refused to deal with maintenance problems, so when the toilet tank cracked, she turned off the water, and eventually appellant had to use buckets to flush the toilets. Appellant often told Martha they should hire a plumber, so she was aware of the problem, but she did not want anyone in the house, and appellant was never able to convince her to bring in a plumber.
At trial, appellant's account of her mother's failing health was not consistent with the account she gave during her interview with Detective Oviatt. Appellant testified that Martha was ambulatory throughout 2010. She used a cane but was able work in the garden and was mentally sound. Then, in January 2011, Martha became unable to walk, but she was still mentally competent.
Appellant testified that the last time she talked to her mother about going to a doctor was in 2010. Martha was experiencing pain in her arm and appellant said she wanted to take her to the hospital, but Martha responded "Hell, no." According to appellant, Martha hated doctors, and on this particular occasion she became so angry and combative that appellant was afraid she was going to have a heart attack or stroke. Martha had a history of high blood pressure, but had gone "cold turkey off her blood pressure medication" and just refused to take it.
According to appellant's trial testimony, Martha was already sleeping in the living room when she lost the ability to walk three months before her death. Once she began experiencing problems with her lower extremities, she could still lift her hips, "scoot" herself into an upright position, and move or roll herself around in her bean bag chairs. And, at that point, she was still coherent. She knew who people were and could carry on a conversation. She was a light eater but had a sweet tooth, and appellant prepared food for her that she loved, like cottage cheese, yogurt, pudding and peanut butter and jelly sandwiches. Before she went to work, appellant would leave these foods for Martha, along with drinks like Ensure, apple juice and water. It appeared to appellant that Martha was eating the food, which she continued to provide until the day Martha died.
Appellant testified that once Martha became immobile, appellant tried to bathe her with a washcloth, and changed her mother's diapers at least twice a day. A few days before Martha died, appellant noticed the sores on her feet, and immediately went to the pharmacy to purchase disinfectants and gauze, which she used to treat the wounds. Appellant did not notice the bedsores because she was not able to turn Martha over, and the smell was masked by the smell of food that had fallen around Martha when she tried to eat.
On the day Martha died, appellant arrived home from work between 6:30 and 7:00 p.m. Appellant talked to her mother about what they would watch on television and noticed that the containers of food she had left were partially empty. As appellant was changing her mother's diaper, Martha made a sound and then became unresponsive. Appellant then called 911, and emergency personnel arrived within five minutes, "banging on the door like a bunch of gorillas."
Appellant testified that when Detective Oviatt interviewed her at the police station, she made statements about her mother looking like a Holocaust victim because she was "under duress." She had lost her mother, and was physically separated from her and unable to "protect her in the house." Under cross-examination, appellant reiterated that Martha was mobile throughout 2010; testified that she saw Martha stand up and walk on her own with a cane during that time period; and told the jury that she was "confused" and "incorrect" when she told Detective Oviatt that Martha had been unable to walk in 2010. She was also "incorrect" when she told Oviatt that Martha had not moved from the living room floor since March 2010, and that she had not been able to lift her hips for two months before she died. Appellant testified that much of the information that she gave the detective about the timing and circumstances of her mother's deteriorating health was "incorrect." However, appellant did confirm that she was aware that services were available to her through Adult Protective Services, and she acknowledged that she never sought medical attention for her mother during the last year of her life.
III. DISCUSSION
A. Appellant Received Effective Assistance of Counsel
1. Issue Presented
As noted, appellant was convicted of violating section 368, subdivision (b)(1) (section 368(b)(1)). This statute "creates an expansive crime that punishes the abuse of elder or dependent adults. The defined punishable abuse is of several types and can be committed in a variety of ways." (People v. Adams (2001) 93 Cal.App.4th 1192, 1198, fn. omitted.) Pertinent here, a defendant can be convicted of felony elder abuse under this statute when he or she "knows or reasonably should know that a person is an elder . . . and . . . , under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits [that] elder . . . to suffer, or inflicts thereon unjustifiable physical pain or mental suffering." (§ 368(b)(1).)
Appellant asserts that her trial counsel's defense to the section 368(b)(1) charge was so flawed that she was denied her constitutional right to the effective assistance of counsel. Specifically, appellant contends that her trial counsel made a series of incompetent decisions that precluded the jury from learning that appellant suffers from PTSD as a result of the way Martha treated her when she was growing up.
2. Guiding Principles
" ' "A criminal defendant is guaranteed the right to the assistance of counsel by both the state and federal Constitutions. [Citations.] 'Construed in light of its purpose, the right entitles the defendant not to some bare assistance but rather to effective assistance.' " [Citation.]' " (People v. Vines (2011) 51 Cal.4th 830, 875, italics omitted (Vines).) " 'It is defendant's burden to demonstrate the inadequacy of trial counsel. [Citation.]' " (Ibid.)
To carry this burden, " ' "a defendant must first show counsel's performance was 'deficient' because his 'representation fell below an objective standard of reasonableness . . . under prevailing professional norms.' [Citations.]" ' " (People v. Lucas (1995) 12 Cal.4th 415, 436 (Lucas); see also People v. King (2010) 183 Cal.App.4th 1281, 1298 (King).) "In reviewing counsel's performance, we 'exercise deferential scrutiny.' [Citations.]" (King, at p. 1298.) We "defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' [Citation.]" (Lucas, at pp. 436-437.)
"Second, [the defendant] must also show prejudice flowing from counsel's performance or lack thereof. [Citation.] Prejudice is shown when there is a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' " ' [Citation.]" (Lucas, supra, 12 Cal.4th at p. 436.)
3. Background
Prior to the preliminary hearing, defense counsel retained a psychologist named Dr. Trombley to evaluate appellant, with the goal of using evidence of Martha's prior abuse to show that appellant lacked the "ability" to commit felony elder abuse within the meaning of section 368(b)(1). Although Trombley testified at the preliminary hearing, defense counsel subsequently determined that Trombley would likely be a hostile witness if she was subpoenaed to testify at trial. Thus, in November 2012, the defense retained a different psychiatric expert, Dr. Krell.
In September 2014, Krell issued a "Preliminary Psychiatric Report" in anticipation of her trial testimony as a defense expert. The brief report focused on appellant's family history, stating that Martha was "seriously emotionally disturbed," and had "severely verbally and physically abused" appellant and her sisters. Krell then reported that she had diagnosed appellant with PTSD and "Dependent Personality Traits," and concluded with the following recommendations: "In my opinion [appellant's] care of her mother was the very best she could do under the circumstances of her own psychopathology, (mainly created by the mother's abuse) and her mother's terrorizing behavior, to take care of her mother in the best way possible. Our focus here is on how [appellant] suffered due to her mother's conduct toward [appellant] all of [appellant's] life. Even so, [appellant] loved her mother and did not want to displease her in any way, taking care of her the best way she knew how under the circumstances of fear and terror of doing the wrong thing for which she would be severely punished. She loved and still misses her mother and is still grieving her mother's death. There is no specific or general deterrence issue here. Neither society nor this naïve, gentle, kind-hearted person would benefit from any kind of jail or prison sentence."
The People filed a pretrial motion to exclude Krell's testimony. They argued that Krell's opinion that appellant had done the best she could under the circumstances of her own psychopathology was irrelevant because appellant had been charged with violating section 368(b)(1) "based upon her criminally negligent level of care and treatment for the Victim," and criminal negligence is an objective standard based on what a reasonable person would do under similar circumstances. The People also argued that admitting expert testimony on this issue would invade the province of the jury to evaluate appellant's conduct under the reasonable person standard.
At a hearing on the motion, the trial court questioned the defense about how or why evidence of appellant's mental state at the time of Martha's death was relevant to the elements of a section 368(b)(1) violation. Defense counsel acknowledged that appellant was not presenting an insanity defense and, therefore, her mental capacity was not put at issue. But he argued there was a legal distinction between mental capacity and mental state, and that evidence of appellant's mental state could be admitted to show that there was an absence of "willful conduct," which was an element of the elder abuse charge. Discussion of this theory was extensive, and spread over more than one session of the pretrial hearings. Ultimately though, the court ruled that the proposed expert testimony was not admissible because evidence about appellant's mental state was not relevant to the issue of whether she committed a general intent crime, or was criminally negligent.
4. Analysis
Appellant contends her trial counsel was "ineffective" in three distinct ways: (1) he made an "incorrect" argument that evidence of appellant's PTSD was relevant to negate the "willfulness" element of the elder abuse charge; (2) he failed to argue that the PTSD evidence was admissible to prove a mistake of fact, and (3) he should not have elicited evidence of Martha's abuse once the trial court excluded expert testimony that appellant suffers from PTSD. We will separately address these three claims.
As discussed, defense counsel argued that the PTSD evidence was admissible to show that appellant did not "willfully" cause Martha to suffer, or place her in a position in which she would suffer great bodily harm or death. (§ 368(b)(1).)
"The word 'willfully,' when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate the law, or to injure another, or to acquire any advantage." (§ 7, subd. (1).) Our Supreme Court has recognized, however, that when the word "willfully" appears in a statute, its meaning depends on the context, and may or may not require knowledge of an underlying obligation. (People v. Valdez (2002) 27 Cal.4th 778, 788 [and cases cited].) Valdez was an appeal from a conviction for felony child abuse under section 273a. The appellate court found that statutory language requiring "willful" conduct meant that the accused had to have had subjective knowledge or awareness of the danger he or she created. However, the Supreme Court disagreed, finding that a criminal negligence standard of culpability applies to felony child abuse.
At least one appellate court has reached a similar conclusion with respect to elder abuse under section 368(b)(1). (People v. Medlin (2009) 178 Cal.App.4th 1092 (Medlin).) In that case, after a jury acquitted defendants of violating section 368(b)(1), the trial court filed an order finding they were factually innocent of the felony charge. However, the trial court order was reversed following the People's appeal. Finding that there was legal cause to believe that the respondents willfully caused the victim's death, the court stated: "The statute does not require specific intent to injure but does require criminal negligence. [Citations.] [¶] Criminal negligence requires a gross violation of an existing duty of care. [Citation.] There must be proof of 'aggravated, culpable, gross, or reckless conduct, which is such a departure from the conduct of an ordinarily prudent person under the same circumstances as to demonstrate an indifference to consequences or a disregard of human life.' [Citation.] The question is 'whether a reasonable person in the defendant's position would have appreciated the risk his or her conduct posed to human life.' [Citation.] The defendant's subjective awareness is irrelevant. [Citation.]" (Medlin, at pp. 1102-1103.)
Although Medlin did not address whether mental health evidence is admissible to rebut a section 368(b)(1) charge, its conclusions that elder abuse is not a specific intent crime and can be based on a finding of criminal negligence are consistent with the trial court's ruling regarding the PTSD evidence in this case. Under Medlin, supra, 178 Cal.App.4th at page 1103, the impact of PTSD on appellant's subjective awareness of the circumstances she faced was not relevant to the question of whether a reasonable person in her position would have appreciated the risk that her conduct posed to human life. The fact that the trial court properly sustained an objection to this defense evidence does not mean that defense counsel failed to provide appellant with effective assistance. As noted, to make that showing, appellant must establish that counsel acted in a professionally unreasonable manner which fell below an objective standard of competency. (Lucas, supra, 12 Cal.4th at pp. 436-437.)
Appellant argues that the decision by trial counsel to build a defense around the willfulness requirement of section 368(b)(1) did fall below acceptable standards because it meant that the request to admit PTSD evidence was "doomed from its inception." This assertion is demonstrably untrue. The trial court engaged the parties in an extensive discussion of this matter before making its final ruling. It also expressly acknowledged that the question of whether to admit the PTSD evidence is "not an easy issue and, in fact, it's a very confusing issue." Indeed, it appears that the trial court was not provided with any case authority squarely addressing the issue. In People v. Theil (2016) 5 Cal.App.5th 1201 (Theil), an appellant convicted of violating section 368(b)(1) argued that the trial court erred by precluding the jury from considering evidence of his alleged mental incompetence when determining whether he "willfully" inflicted unjustifiable pain or suffering on the victims. Although the Theil court rejected that argument, it did so in a published decision that was filed in November 2016, while this appeal was pending. (Id. at pp. 1207-1217.)
Appellant's second complaint is that her trial counsel failed to use the PTSD evidence to pursue a "mistake of fact" defense, rather than in an attempt to negate criminal intent. She argues that this defense would have allowed counsel to use the strong evidence of Martha's hatred of doctors to secure admission of the PTSD evidence in order to prove that appellant's "mental condition made it difficult for her to determine factually when she should countermand her mother's wishes." The obvious flaw in this theory is that appellant is still arguing that psychological evidence was admissible to prove her mental state notwithstanding the fact that her mental state was not relevant to the determination whether her actions constituted criminal negligence. In her opening brief, appellant fails to cite a single case supportive of this mistake of fact theory. In her reply brief, appellant cites a few mistake of fact cases for the first time, without discussing them. They are inapposite if not inconsistent with appellant's theory.
For example, in People v. Lucero (1988) 203 Cal.App.3d 1011 (Lucero), the defendant was charged with conspiracy to smuggle narcotics into a jail and related offenses. At trial, his defense was that he had an honest and reasonable belief that he was immune from prosecution because he was acting in furtherance of his work as a police informant. (Id. at pp. 1015-1016.) This defense was based on Health and Safety Code section 11367, which creates immunity from prosecution for persons working under the immediate direction, supervision or instruction of a peace officer investigating narcotics violations. However, the trial court refused to instruct the jury that if the defendant had an honest and reasonable belief that his actions were immune from prosecution then he lacked the requisite intent to commit the charged offenses. The Lucero court reversed the resulting convictions, finding that the instruction should have been given because mistake of fact was a valid defense to the narcotics charges and was supported by substantial evidence. (Id. at pp. 1016-1018.)
Lucero, supra, 203 Cal.App.3d 1011, is not on point, as it did not involve an elder abuse charge or a request to admit expert evidence of the alleged abuser's mental state. Beyond that, the Lucero court's mistake of fact analysis is inconsistent with appellant's contention that the defense was available to her. In finding that a mistake of fact defense was valid with respect to the narcotics offenses, the Lucero court emphasized two factors. First, the mistake must be of such a nature that if the perceived fact were true, the action would not constitute a crime. (Id. at p. 1016.) Second, the defense applies only if the mistake is reasonable, and "the question of reasonableness must be resolved on the basis of an objective standard." (Id. at p. 1017.) Thus, in the context of a defendant who thought his actions were immune from prosecution, the issue was "not whether it was reasonable for a narcotic addict with a 'deranged mind' to believe he or she was immune from prosecution; but rather whether an ordinary person could have a bona fide and reasonable belief in his or her immunity from prosecution." (Ibid.)
In the present case, there is no evidence that appellant made a mistake regarding the existence or nonexistence of an objective fact, which, if true, would have made her conduct lawful. Rather, if appellant made any mistake, it was with respect to her perception of facts about her mother's condition. Furthermore, because that misperception was allegedly due to appellant's PTSD rather than some objective circumstance, it would not support a mistake of fact defense to a charge of criminal negligence, both of which are objective tests measured by what a reasonable person would think or do.
Appellant's third and final complaint is that her defense counsel should have realized that presenting evidence of Martha's prior abuse without the context of appellant's PTSD diagnosis "created an inappropriate and devastating narrative for the jury" by suggesting that the defense was seeking to justify Martha's death. However, the record shows there was a sound tactical reason to elicit this type of evidence—not to justify Martha's death, but to help explain the condition of the home and Martha's character. In theory at least, this evidence was relevant to establish the circumstances surrounding Martha's death, circumstances that were relevant to the jury's assessment of what a reasonable person would have done in appellant's position.
Even if there was some evidence of deficient performance by trial counsel with respect to the way the PTSD evidence was handled, appellant cannot carry her heavy burden of establishing prejudice. First, the defense theory that PTSD evidence was relevant to rebut the willful conduct requirement, though ultimately unsuccessful, did not prejudice appellant's case. If anything, the pursuit of that theory garnered some leeway with respect to the presentation of percipient testimony about Martha's shortcomings as a mother. Second, the failure to pursue a mistake of fact defense was not prejudicial because that defense was not available to appellant. Third, there is no reasonable probability that the outcome of this case would have been more favorable to appellant if evidence of Martha's habits and character had not been presented to the jury.
B. Evidence that Martha Hated Doctors Was Not Excluded
Appellant contends that the trial court committed reversible error by sustaining a hearsay objection to her testimony that Martha hated doctors.
While appellant was testifying at trial, her counsel asked her if her mother had an opinion about doctors, and appellant replied that "She hated them." The prosecutor made a hearsay objection, which led to an off the record sidebar discussion, and then a statement by the court directing defense counsel "to rephrase." Appellant then proceeded to testify about a specific incident in 2010 when Martha refused to allow appellant to take her to the doctor. At one point during that testimony, the court sustained another objection that appellant was giving a narrative and nonresponsive answer to a question. However, the trial court did not strike any testimony, instruct the jury not to consider this evidence, or direct defense counsel to move off this subject.
In this court, appellant contends that her testimony that Martha hated doctors was relevant to explain appellant's state of mind with respect to her decision not to seek medical treatment for Martha, and was therefore admissible, either under the state of mind exception to the hearsay rule (Evid. Code, § 1250), or as nonhearsay circumstantial evidence of her state of mind. First, these rules apply when the declarant's state of mind is at issue, not to prove the state of mind of a nondeclarant witness. Second, the trial court's hearsay ruling was not prejudicial. Although the court asked counsel to rephrase his question, it did not strike appellant's answer or instruct the jury not to consider it. Furthermore, appellant's sister Loretta also testified about her mother's hatred of doctors and there was no limitation on that testimony.
Appellant contends the trial court's ruling was prejudicial because it made "it impossible for defense counsel to argue that the decision not to seek medical intervention was made by Martha Hamashin, not appellant." However, the trial court's ruling on the hearsay objection was to rephrase the question. It did not impose any restriction on the defense's ability to probe this issue. Indeed, during closing argument, defense counsel was able to highlight testimony from appellant's sister, Loretta, that Martha did not like doctors and refused to seek their treatment. Thus, the single hearsay ruling did not have any effect on the outcome of these proceedings.
IV. DISPOSITION
The judgment is affirmed.
/s/_________
RUVOLO, P. J. We concur: /s/_________
REARDON, J. /s/_________
RIVERA, J.