Opinion
H042235
08-01-2018
THE PEOPLE, Plaintiff and Respondent, v. JUAN ORSONIO MARTINEZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1243623)
A jury convicted defendant Juan Orsonio Martinez of first degree murder (Pen. Code, § 187) and found that he personally used a deadly weapon (Pen. Code, § 12022, subd. (b)(1)). The trial court sentenced defendant to a prison term of 25 years to life consecutive to one year.
On appeal, defendant makes the following arguments: 1) the trial court erred in refusing to instruct the jury that provocation could reduce murder from first degree to second degree; 2) the trial court erred in refusing to instruct the jury on heat of passion voluntary manslaughter as a lesser included offense of murder; 3) the trial court erroneously instructed the jury that it could not consider voluntary intoxication when determining whether defendant acted in imperfect self-defense; 4) the trial court erred in admitting defendant's statements to a police officer as rebuttal evidence; and 5) cumulative prejudice necessitates reversal. We reject his contentions and affirm the judgment.
I. Evidence Presented at Trial
A. The Prosecution's Case-in-Chief
Defendant and the murder victim, Irma Campos, dated for several years. Although they never married, they referred to each other as husband and wife. Due to a tumor in her wrist, Campos's right arm was amputated at the elbow. Defendant and Campos were homeless, and defendant always carried a wrench and a knife.
On August 25, 2011, defendant and Campos were staying at an abandoned house in San Jose. Cynthia Wade, who was also homeless, was staying at the house with defendant and Campos.
Sometime in the afternoon on August 25, 2011, defendant and Campos smoked PCP. According to Wade, defendant and Campos were acting "fine" after smoking the PCP.
Later that evening, defendant picked up his backpack and went to the store. When defendant returned to the abandoned house, he did not have his backpack. Defendant grabbed Wade's backpack, Wade told defendant that it was her backpack, and defendant called Wade a liar. Defendant and Campos started arguing about the backpack. Campos yelled at defendant and told him that he must have left his backpack at the store. Defendant searched the house for his backpack, and Campos "kept telling" defendant that his backpack was at the store.
Later that night, defendant and Campos went into a bedroom and shut the door. Wade thought defendant and Campos "smoked a joint" because she could "smell it . . . ." Wade heard defendant and Campos arguing. A few minutes later, Wade heard the sound of Campos "gagging, like somebody was choking her." Wade heard Campos "gasping for breath," and Wade "kept asking her if she's okay." Campos finally said that she was "okay."
Shortly after 9:00 p.m., police officers arrived at the abandoned house. They told Wade and Campos that they were trespassing and had to leave the house. Wade and Campos left the house. The officers saw defendant sleeping on a mattress, and they yelled at him to wake up. Defendant opened his eyes, tilted his head up, looked at the officers, and went back to sleep. The officers "figured" that defendant was "pretty intoxicated," so they "let him sleep it off" on the mattress. According to Wade, defendant was "KJ'd out" when the officers arrived, meaning that he had smoked "too much" PCP and could not move.
Campos and Wade later returned to the abandoned house, and defendant was upset that they had left him. Defendant was angry and argued with Campos. Wade left the house in order to move her belongings to a different location. Wade returned to the house, and defendant and Campos were arguing in the bedroom. Wade fell asleep in the living room. She woke up and "heard stuff breaking." The bedroom door was not closed all the way, so Wade was able to look inside the bedroom. She saw Campos "[l]ying on the mattress" and defendant "looking through the property" in the bedroom. Wade sat in the living room for five minutes. Wade then looked into the bedroom again. She saw that Campos was "still on the mattress" and "not moving." She saw defendant "towards the end of the mattress" with "a knife in his hand." Wade called Campos's name, but Campos did not respond. Defendant stared at Wade, and he looked "surprised" and "like he was coming off . . . the drug or something." Wade was scared that defendant was "going to come after" her, so she ran out of the house.
Around 10:00 a.m. on August 26, 2011, Campos's friend, Veronica Moreno, discovered Campos's body on the mattress under a pile of blankets. Moreno lifted up a blanket, and she saw that Campos's throat was "sliced." Moreno ran away to get help. Police officers arrived, and they found a "kitchen-type" knife "on top of" Campos's body. The knife was "heavily blood stained." The officers also found a "bloody crescent wrench" in a closet near Campos's body. There was blood spatter on the wall above the mattress. The pattern of the blood spatter was consistent with Campos being beaten in the head with a wrench while she was on the mattress.
A criminalist, Heather Parsons, tested the knife and wrench for DNA. Campos's DNA was on the blade and handle of the knife. Blood on the wrench matched Campos's DNA. There was "low-level male DNA" on the knife handle and the wrench handle, with "more than one male contributing to that DNA." Because of the low level of male DNA on the knife and wrench handles, Parsons could not include or exclude defendant as a contributor of that DNA.
Dr. Michelle Jorden performed an autopsy on Campos's body on August 29, 2011. There was "a lot of blood" on Campos's body, mostly around the head. Campos's face and head were "asymmetric" because of "the devastating nature of the injuries, particularly along the left side of the face and the head." Campos suffered "many" facial fractures, as well as numerous facial lacerations and bruises. Campos's nose, eye socket, cheekbone, jaw, and skull were fractured. Her left eyeball was "completely collapsed" due to the "numerous" injuries and fractures in that area. Campos had "multiple teeth that were dislodged," including one tooth that was found in her hair. There was a laceration on the back of Campos's head that was consistent with blunt force. Campos suffered "massive brain injuries," including a "diffuse axonal injury" in which "the cells in the brain are actually sheared apart."
Dr. Jorden testified that Campos also suffered a "large incised wound" across the front of the neck and a stab wound on the lower neck. The large incised wound involved "all the muscles of the neck," and it "completely transected" the trachea, esophagus, carotid arteries, and jugular veins. The large incised wound was jagged, suggesting that it was inflicted by pushing a knife "back and forth across the neck." Dr. Jorden explained that the injuries to Campos's neck would have taken "considerable force" to inflict, and she concluded that the neck injuries were "an attempted decapitation."
Dr. Jorden explained that Campos's head injuries were consistent with being hit in the head "repeatedly" with the wrench that was recovered from the scene. She noted that the shape of the wrench was consistent with the shape of wounds on Campos's face. Dr. Jorden explained that the knife recovered from the scene was consistent with a weapon that could have caused Campos's neck injuries.
Dr. Jorden opined that the cause of Campos's death was blunt trauma to the head. She opined that Campos "was either on the verge of death or had just passed away" when the neck wounds were inflicted. Dr. Jorden finally opined that Campos's injuries were consistent with Campos being struck on the back of the head with the wrench, falling unconscious onto the mattress, being beaten repeatedly in the face with the wrench, and being cut on the neck "at the moment of death or just after death . . . ."
One year and two months after Campos's death, Campos's sister, Norma Cota, saw defendant exit a market in Gilroy. Defendant initially "froze," and then he got on his bike and "took off." Cota called the police, and officers arrested defendant on October 25, 2012 in Gilroy.
B. Defense Evidence
San Jose Police Officer Wakana Okuma spoke with Wade on August 26, 2011. It was stipulated that Wade told Officer Okuma that defendant was "KJ'd out and unable to stand" when police officers came to the abandoned house on August 25, 2011. It was also stipulated that Wade never told Officer Okuma that she saw defendant with a knife on the night of the killing.
Juan Vallejo, a detective with the San Jose Police Department, interviewed Wade on August 26, 2011. At the beginning of the interview, it appeared to Detective Vallejo that Wade was unaware that Campos was dead. When Detective Vallejo informed Wade that Campos had died, Wade looked surprised. Wade told Detective Vallejo that she was with defendant and Campos on August 25 and 26, and Wade said that during that time she heard Campos "choking" like "she was dying or something." During the interview, Wade never told Detective Vallejo that she saw defendant holding a knife next to Campos. Four or five times during the interview, Wade told Detective Vallejo that defendant had been angry about a missing backpack. She said that defendant accused Campos of stealing his backpack. Wade also said that defendant was angry at Campos for leaving him when the police came to the abandoned house. She said that defendant yelled at Campos for leaving him.
San Jose Police Officer Jeanette Siversten testified that she responded to the abandoned house around 9:00 p.m. on August 25, 2011. When she arrived, defendant "appeared to be sleeping" on a mattress. She shined her flashlight on defendant and tapped his feet. Defendant opened his eyes, put his arm over his eyes, and "would not get up." Defendant "seemed to be either intoxicated or a heavy sleeper." Officer Siversten did not smell the odor of alcohol.
Dr. Melissa Piasecki, a forensic psychiatrist, testified as an expert in "substance abuse, including the effects of PCP on the human body." She explained that PCP is an anesthetic, meaning that it makes users "unconscious or unaware" and unable to "sense pain." She testified that PCP has disassociative anesthetic effects, meaning that PCP "disassociates an individual's awareness or consciousness from their environment" so that "they don't know where they are, who they are, what they are, or what time they're experiencing." She explained that a person in a disassociative anesthetic state is "mentally unconscious," yet "able to move." She testified that "the higher the dose" of PCP, "the more intense the effects of disassociation."
Dr. Piasecki testified that a street name for PCP is "KJ." She explained that the term "KJ'd out" means "using enough PCP that you are unable to move, unable to respond to your environment, basically in some type of coma state." She noted that a person who is "KJ'd out" is in an "extreme disassociative anesthetic state."
Dr. Piasecki opined that defendant was "severely intoxicated" with PCP and in a disassociative anesthetic state at the time Campos was killed. Her opinion was based, in part, on "facts . . . consistent with [defendant] not having any memory" of what happened.
Dr. Piasecki testified that defendant had a low IQ of 74. She explained that defendant's IQ score placed him in the "borderline intellectual functioning category."
On cross-examination, Dr. Piasecki testified that being under the influence of PCP "does not automatically mean that someone cannot control their behavior." She explained that there are "a range of levels of intoxication and a range of behavior disturbances as a result" of PCP usage. On cross-examination, Dr. Piasecki also testified that a person "having memory of what they've done under the influence of PCP would be some indication that they were aware of what was going on around them." She explained: "You have to be aware of your environment in order to create a memory of it."
C. The Prosecution's Rebuttal Evidence
Detective Vallejo testified that he interviewed defendant on the day of his arrest, October 25, 2012. At the beginning of the interview, defendant said that he did not know that Campos was dead, he said that he had no "memory of what happened to" Campos, and he "denied . . . that he killed [Campos] because he didn't have a memory of it." Defendant told Detective Vallejo that he left the abandoned house when police "kicked everyone out," that Campos remained at the house, and that Campos was alive at that time. Detective Vallejo testified that when defendant first mentioned police coming to the abandoned house, Detective Vallejo had not told defendant that police went to the abandoned house on August 25, 2011. When Detective Vallejo advised defendant that Campos left defendant at the abandoned house after police arrived, defendant continued to claim that he left the house on his bicycle and that Campos was alive when he left.
At least five times during the interview, Detective Vallejo asked defendant if he had "done something" to Campos in self-defense. In response to these questions regarding self-defense, defendant denied acting in self-defense and "repeatedly" stated that Campos was alive when he left her at the abandoned house. Later in the interview, Detective Vallejo asked defendant a "more specific" question regarding self-defense. Detective Vallejo asked defendant: "Was this self-defense? Did she come at you with a knife?" That question was the first time Detective Vallejo mentioned a knife to defendant. Detective Vallejo testified that defendant immediately "latched onto" the question regarding the knife and said: "Yes. She came -- she was on me with a knife. I was protecting myself." Defendant then stated that he grabbed a wrench and struck Campos twice with the wrench. Before defendant stated that he hit Campos with a wrench, no police officer had mentioned a wrench to defendant. Defendant explained to Detective Vallejo that Campos attacked him with the knife because she thought defendant was "cheating on her."
When defendant initially mentioned the wrench in the interview, he claimed that he "left immediately after hitting [Campos] twice with the wrench." Defendant told Detective Vallejo that Campos "was okay" when he left. Later in the interview, defendant said that Campos was "not responsive" and "not moving" after he struck her with the wrench, and he also said that he stayed with her for 15 minutes after he struck her. At a later point in the interview, defendant described "hitting [Campos] when she was wrapped in a blanket." Several times during the interview with Detective Vallejo, defendant stated that Campos had taken "his papers" and "his ID." Defendant "kept bringing that subject up" during the interview. Defendant told Detective Vallejo that "he was angry with [Campos] about this."
At one point during the interview, Detective Vallejo told defendant that Campos's "head was almost cut all the way off." Defendant responded with a "blank stare." Defendant "insisted" that he never used a knife, and he said that he "had no memory of ever doing anything to [Campos] with a knife."
On cross-examination, Detective Vallejo testified that, during the interview, defendant said "he had smoked more PCP . . . than he's ever smoked before" on the night of Campos's death. Defendant said that he "had used so much drugs" on the night of the killing that "his mind was gone" and he was "a sleep walker." Near the end of the interview, defendant said that he "was out of it on drugs."
D. Defense Surrebuttal Evidence
Dr. Richard Leo, a social psychologist and criminologist, testified as an expert in false confessions and psychological coercion in police interrogations. He testified that false confessions exist, although the "general belief" is that "false confessions are rare" and "are the exception rather than the rule." He testified that a person with low intellectual functioning can be "manipulated in an interrogation more easily than a person . . . of average intellectual functioning," and that "[p]eople of low intellectual functioning tend to be more compliant and at greater risk for making . . . false confessions . . . ." He explained that a person of low intellectual functioning who has "no memory of the specific details" of an event is at "greater risk" for making a false confession.
II. Discussion
A. Instructions on Provocation and Heat of Passion Voluntary Manslaughter
Defendant contends that the trial court erred in refusing to give CALCRIM No. 522, which provides that provocation may reduce a murder from first degree to second degree. Defendant also contends that the trial court erred in refusing to instruct on heat of passion voluntary manslaughter as a lesser included offense of murder.
1. Background
The trial court instructed the jury on first and second degree murder pursuant to CALCRIM No. 520 and CALCRIM No. 521. Defense counsel requested that the trial court also instruct the jury pursuant to CALCRIM No. 522 and CALCRIM No. 570. CALCRIM No. 522 provides, in relevant part: "Provocation may reduce a murder from first degree to second degree . . . . The weight and significance of the provocation, if any, are for you to decide. [¶] If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder." CALCRIM No. 570 defines voluntary manslaughter committed in the heat of passion.
Defense counsel argued that CALCRIM No. 522 and CALCRIM No. 570 were required "based on the evidence that came in through Detective Vallejo's testimony regarding [defendant's] statement that Miss Campos came at him with a knife first." The prosecutor objected to giving CALCRIM No. 522 and CALCRIM No. 570, arguing that the evidence described by defense counsel showed "either self-defense or imperfect self-defense" and not "a heat of passion or a provocation situation." The prosecutor asserted that there was "no evidence . . . that [defendant] hit [Campos] because he was provoked by that knife." The prosecutor emphasized that defendant told Detective Vallejo that he was defending himself when Campos approached him with the knife.
The trial court refused to give CALCRIM No. 522 and CALCRIM No. 570. The trial court explained that "those two instructions really go to a different factual scenario than what's been presented." The trial court noted that defendant's statements to Detective Vallejo arguably showed "self-defense or imperfect self-defense," and it accordingly instructed the jury regarding self-defense and voluntary manslaughter based on imperfect self-defense.
2. Legal Principles
CALCRIM No. 522 "is a pinpoint instruction" that describes provocation's effect on the degree of murder. (People v. Hernandez (2010) 183 Cal.App.4th 1327, 1333 (Hernandez).) "The evidentiary premise of a provocation defense is the defendant's emotional reaction to the conduct of another, which emotion may negate a requisite mental state." (People v. Ward (2005) 36 Cal.4th 186, 215 (Ward); accord People v. Nelson (2016) 1 Cal.5th 513, 541.) The premise of CALCRIM No. 522 is "that provocation (the arousal of emotions) can give rise to a rash, impulsive decision, and this in turn shows no premeditation and deliberation." (Hernandez, at p. 1334.)
CALCRIM No. 570 defines voluntary manslaughter committed in the heat of passion. "Where an intentional and unlawful killing occurs 'upon a sudden quarrel or heat of passion' [citation], the malice aforethought required for murder is negated, and the offense is reduced to voluntary manslaughter—a lesser included offense of murder." (People v. Carasi (2008) 44 Cal.4th 1263, 1306.) "Such heat of passion exists only where 'the killer's reason was actually obscured as the result of a strong passion aroused by a "provocation" sufficient to cause an " 'ordinary [person] of average disposition . . . to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.' " ' [Citation.]" (Ibid.)
"[A] subjective test applies to provocation as a basis to reduce malice murder from the first to the second degree: it inquires whether the defendant in fact committed the act because he was provoked. The rationale is that provocation may negate the elements of premeditation, deliberateness and willfulness that are required for that degree of the crime. [Citation.] But more is required to reduce malice murder to voluntary manslaughter. For that, an objective test also applies: the provocation must be so great that . . . it 'would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment.' " (People v. Jones (2014) 223 Cal.App.4th 995, 1000-1001 (Jones).)
A pinpoint instruction, such as CALCRIM No. 522 must be given "only if it is supported by substantial evidence." (Ward, supra, 36 Cal.4th at p. 214.) The trial court must instruct on a lesser included offense, such as heat of passion voluntary manslaughter, "when there is substantial evidence to support the instruction." (People v. Barton (1995) 12 Cal.4th 186, 203.)
3. Analysis
Defendant contends that his statements to Detective Vallejo regarding Campos's use of a knife constituted substantial evidence that required the trial court to give CALCRIM No. 522 and CALCRIM No. 570. The evidence showed that Detective Vallejo asked defendant the following question: "Was this self-defense? Did [Campos] come at you with a knife?" Defendant responded as follows: "Yes. She came -- she was on me with a knife. I was protecting myself." Defendant then told Detective Vallejo that he grabbed a wrench, struck Campos twice with the wrench, and left Campos shortly after striking her with the wrench.
Contrary to defendant's assertion, the foregoing evidence did not constitute substantial evidence of provocation that required the trial court to give CALCRIM No. 522. When a trial court determines whether to give a pinpoint instruction on provocation, "[t]he issue is whether the provocation precluded the defendant from deliberating." (People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1295.) The evidence here did not show that Campos's use of a knife precluded defendant from deliberating. Defendant's own statement showed that he deliberately picked up the wrench and hit Campos twice with it in order to protect himself. This evidence did not show that defendant made a "rash, impulsive decision." (Hernandez, supra, 183 Cal.App.4th at p. 1334.) Rather, the evidence showed that defendant made a reasoned, deliberate decision to defend himself in response to Campos's use of the knife. Because there was not substantial evidence of provocation, the trial court did not err in refusing to give CALCRIM No. 522.
Given that there was not substantial evidence of provocation, the trial court likewise did not err in refusing to instruct on heat of passion voluntary manslaughter pursuant to CALCRIM No. 570. (See Jones, supra, 223 Cal.App.4th at pp. 1000-1001 [there must be provocation to reduce murder to heat of passion voluntary manslaughter].) As we have already explained, the evidence showed that defendant made a deliberate decision to defend himself with two strikes of the wrench in response to Campos's use of a knife. Indeed, an instruction on heat of passion voluntary manslaughter is not required where the "thrust" of the proffered evidence is self-defense and the proffered evidence shows the defendant "acted deliberately in seeking to defend himself." (People v. Moye (2009) 47 Cal.4th 537, 554-555.)
Defendant relies on People v. Breverman (1998) 19 Cal.4th 142 (Breverman) in arguing that there was substantial evidence for a heat of passion voluntary manslaughter instruction. Citing Breverman, defendant contends that there is "sufficient provocation" to "provoke the heat of passion" where the victim "comes at the defendant with a knife." Defendant's reliance on Breverman is unavailing.
Breverman concluded that the trial court erred in failing to instruct on heat of passion voluntary manslaughter. (Breverman, supra, 19 Cal.4th at p. 164.) Breverman described the evidence of provocation as follows: "Here, there was evidence that a sizeable group of young men, armed with dangerous weapons and harboring a specific hostile intent, trespassed upon domestic property occupied by defendant and acted in a menacing manner. This intimidating conduct included challenges to the defendant to fight, followed by use of the weapons to batter and smash defendant's vehicle parked in the driveway of his residence, within a short distance from the front door. Defendant and the other persons in the house all indicated that the number and behavior of the intruders, which defendant characterized as a 'mob,' caused immediate fear and panic. Under these circumstances, a reasonable jury could infer that defendant was aroused to passion, and his reason was thus obscured, by a provocation sufficient to produce such effects in a person of average disposition." (Id. at pp. 163-164.)
Defendant's case is not akin to Breverman. Defendant's case lacks the hostile mob, trespassing, damage to personal property, and panic that were present in Breverman. Breverman does not compel us to conclude that substantial evidence supported a heat of passion voluntary manslaughter instruction in defendant's case.
In sum, there was not substantial evidence supporting CALCRIM No. 522 or CALCRIM No. 570. The trial court therefore did not err in refusing to give those instructions.
B. Instructions on Voluntary Intoxication
Defendant contends that the instructions on voluntary intoxication were erroneous because they prohibited the jury from considering evidence of voluntary intoxication in determining whether he acted in imperfect self-defense.
Pursuant to CALCRIM No. 571, the trial court instructed the jury on imperfect self-defense, in pertinent part: "A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because he acted in imperfect self-defense. [¶] . . . [¶] The defendant acted in imperfect self-defense if: [¶] 1. The defendant actually believed that he was in imminent danger of being killed or suffering great bodily injury; [¶] AND [¶] 2. The defendant actually believed that the immediate use of deadly force was necessary to defend against the danger; [¶] BUT [¶] 3. At least one of these beliefs was unreasonable."
Pursuant to CALCRIM No. 625, the trial court instructed the jury on voluntary intoxication as follows: "You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with an intent to kill, or the defendant acted with deliberation and premeditation, or the defendant was unconscious when he acted. [¶] A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect. [¶] You may not consider evidence of voluntary intoxication for any other purpose."
The trial court also instructed the jury regarding voluntary intoxication pursuant to CALCRIM No. 3426. That instruction provided, in pertinent part: "You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with the intent to kill."
In People v. Soto (2018) 4 Cal.5th 968, the California Supreme Court rejected the contention that defendant makes in this case and held that CALCRIM No. 625 properly instructs the jury that it cannot consider voluntary intoxication evidence in deciding a claim of imperfect self-defense. Consequently, we reject defendant's contention that the trial court erred in so instructing.
C. Defendant's Statements Offered as Rebuttal Evidence
Defendant contends that that his statements to Detective Vallejo constituted improper rebuttal evidence, and that the trial court therefore erred in admitting those statements as rebuttal evidence. Alternatively, defendant contends that if his claim is deemed forfeited by failure to object, defense counsel rendered ineffective assistance by failing to object to defendant's statements to Detective Vallejo as improper rebuttal evidence.
1. Background
Before the prosecution began presenting evidence, defense counsel requested a hearing to determine whether defendant's interview with Detective Vallejo involved a Miranda violation. The prosecutor responded that she did not intend to introduce defendant's statements to Detective Vallejo in her case-in-chief. The prosecutor then stated that she might introduce those statements as rebuttal evidence "depending on what the [d]efense case is." Defense counsel did not object that defendant's statements to Detective Vallejo constituted improper rebuttal evidence.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
At the conclusion of the prosecution's case-in-chief, the parties discussed the defense witnesses that would be testifying. During that discussion, the prosecutor stated that she might call Detective Vallejo as a rebuttal witness. Defense counsel did not object to Detective Vallejo's testimony as improper rebuttal evidence.
Immediately before the prosecutor called Detective Vallejo as a rebuttal witness, the trial court stated that it "wanted to explore a potential Miranda violation" because the parties had "talked about it a little bit at motions in limine." The trial court held a hearing and determined that defendant's interview with Detective Vallejo did not involve a Miranda violation. Detective Vallejo then testified as a rebuttal witness, without any objection that his testimony constituted improper rebuttal evidence.
2. Forfeiture
Given that defense counsel never objected that Detective Vallejo's testimony constituted improper rebuttal evidence, defendant has forfeited his claim that the trial court erred in admitting that testimony as rebuttal evidence. (People v. Nunez and Satele (2013) 57 Cal.4th 1, 30 [defendant forfeited the claim that testimony constituted improper rebuttal evidence where he "did not raise this objection at trial"].) Thus, the issue before us is whether defense counsel rendered ineffective assistance in failing to object to Detective Vallejo's testimony as improper rebuttal evidence.
3. Ineffective Assistance of Counsel
a. Legal Principles
The defendant bears the burden of proving ineffective assistance of counsel. (People v. Carter (2003) 30 Cal.4th 1166, 1211.) "To prevail on an ineffective assistance of counsel claim, appellant must prove two elements: (1) trial counsel's deficient performance and (2) prejudice as a result of that performance." (People v. Martinez (2014) 226 Cal.App.4th 1169, 1189, citing Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).)
Deficient performance is established "if the record demonstrates that counsel's performance fell below an objective standard of reasonableness under the prevailing norms of practice." (In re Alvernaz (1992) 2 Cal.4th 924, 937.) "Counsel's failure to make a futile or unmeritorious objection is not deficient performance." (People v. Beasley (2003) 105 Cal.App.4th 1078, 1092 (Beasley).) "[A] mere failure to object to evidence seldom establishes counsel's incompetence." (People v. Malone (1988) 47 Cal.3d 1, 33.)
Prejudice is established if "there is a reasonable probability that defendant would have obtained a more favorable result absent counsel's shortcomings." (People v. Cunningham (2001) 25 Cal.4th 926, 1003 (Cunningham).) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, supra, 466 U.S. at p. 694.)
A defendant who raises the issue on appeal must establish ineffective assistance "based upon the four corners of the record." (Cunningham, supra, 25 Cal.4th at 1003.) Where the record on appeal "does not show the reason for counsel's challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation." (People v. Anderson (2001) 25 Cal.4th 543, 569.)
b. Defense Counsel Did Not Render Ineffective Assistance
Here, defendant cannot show deficient performance because Detective Vallejo's testimony regarding defendant's statements constituted proper rebuttal evidence.
"Rebuttal evidence is relevant and admissible if it tends to disprove a fact of consequence on which the defendant has introduced evidence." (People v. Valdez (2012) 55 Cal.4th 82, 169.) Rebuttal evidence " 'is restricted to evidence made necessary by the defendant's case in the sense that he has introduced new evidence or made assertions that were not implicit in his denial of guilt.' " (People v. Young (2005) 34 Cal.4th 1149, 1199 (Young).)
Defendant's expert witness, Dr. Piasecki, testified that use of PCP can place a person in a disassociative anesthetic state. She explained that a person in a disassociative anesthetic state is "mentally unconscious," yet "able to move." Dr. Piasecki opined that defendant was severely intoxicated with PCP and in a disassociative anesthetic state at the time Campos was killed, an opinion based in part on "facts . . . consistent with [defendant] not having any memory" of what happened. Dr. Piasecki explained that a person "having memory of what they've done under the influence of PCP would be some indication that they were aware of what was going on around them." She further testified: "You have to be aware of your environment in order to create a memory of it."
The assertion that defendant was in a disassociative anesthetic state, and thus unconscious, at the time of the killing was "not implicit in his denial of guilt." (Young, supra, 34 Cal.4th at p. 1199.) Detective Vallejo's testimony tended to disprove that defendant was unconscious or in a disassociative anesthetic state because it showed that defendant had memories of the night of the killing. Specifically, Detective Vallejo's testimony showed that defendant remembered the following details: police "kicked everyone out" of the abandoned house in the hours before the killing, he used a wrench to hit Campos, he had been angry with Campos because she had taken "his papers" and "his ID," and Campos was wrapped in a blanket when he hit her with the wrench. Significantly, Detective Vallejo testified that defendant had not been informed that a wrench was found at the scene of the killing and had not been informed that police came to the abandoned house in the hours before the killing. Because Detective Vallejo's testimony showed that defendant had independent memories of the night of the killing, his testimony tended to disprove the defense evidence that defendant was in a disassociative anesthetic state and unconscious at the time of the killing. Detective Vallejo's testimony thus constituted proper rebuttal evidence, and defense counsel was not deficient for failing to object to Detective Vallejo's testimony. (Beasley, supra, 105 Cal.App.4th at p. 1092 [failure to make an unmeritorious objection is not deficient performance].)
In sum, defendant cannot show that defense counsel was deficient in failing to object to Detective Vallejo's testimony as improper rebuttal evidence. Defendant's claim of ineffective assistance of counsel therefore fails.
D. Cumulative Prejudice
Defendant contends that cumulative prejudice from multiple errors requires reversal of the judgment. "[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error." (People v. Hill (1998) 7 Cal.4th 800, 844.) Given that we have not found a series of errors, there is no cumulative prejudice.
III. Disposition
The judgment is affirmed.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Elia, Acting P. J. /s/_________
Bamattre-Manoukian, J.