Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. VCF187188. Darryl B. Ferguson, Judge.
Audrey R. Chavez, 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 Ryan B. McCarroll, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DAWSON, J.
A jury convicted Marco Antonio Navarro (appellant) of the first degree murder (Pen. Code, § 187, subd. (a)) of Tony Jimenez, a counselor at the group home at which Navarro was living. He also was convicted of dissuading a witness by threat (§ 136.1, subd. (c)(1)) and stealing an automobile (§ 487, subd. (d)(1)), charges which resulted from Navarro’s escape after the killing. The trial court sentenced appellant to 30 years 8 months to life in prison, consisting of a determinate four-year term for dissuading a witness, a one-year consecutive enhancement for personal use of a deadly weapon in the commission of the crime, and a consecutive eight-month term for stealing an automobile, plus an indeterminate 25-year-to-life term for the murder.
All further statutory references are to the Penal Code unless otherwise stated.
On appeal, appellant argues that reversal of the judgment is required because the trial court (1) erroneously limited the testimony of the defense expert, (2) erroneously instructed the jury, and (3) committed misconduct when it made inappropriate comments in the presence of the jury. Appellant also contends (4) he received ineffective assistance of counsel, (5) the sentence on grand theft must be stayed pursuant to section 654, and (6) he is entitled to additional presentence custody credits. We conclude appellant is entitled to additional custody credits and modify the judgment accordingly. In all other respects, we affirm.
FACTS AND PROCEDURE HISTORY
Factual Summary
In June of 2007, Jimenez was a counselor at the group home; he had worked there only a few weeks. Jimenez, a former Marine, was bigger and stronger than 16-year-old appellant, who was a resident at the home.
On June 25, fellow resident K.J. and appellant were “hanging out” with two other residents watching movies. Jimenez arrived about bedtime to work the night shift. Before K.J. went to bed, he observed “a little bit of an argument” between appellant and the kitchen staff, which K.J. described as “just an everyday thing.” A short while later, K.J. observed appellant sitting on his bed, and K.J. then headed for his own room.
That same evening, around 10:00 p.m., Jimenez called a coworker, Luis Jauregui, and told him appellant was refusing to go to sleep and asked Jauregui what he should do. Jauregui advised Jimenez to write an incident report and do nothing further. Jimenez wrote a note to the house manager stating that he had asked appellant to leave a fellow resident’s bedroom at 10:30 p.m. and that appellant “hit [Jimenez’s] shoulder with his and called [Jimenez] a fuck[ing] punk while leaving [the] room.”
A short while later, Jimenez and appellant fell through the sheet covering the entryway of K.J.’s bedroom while they were fighting, startling K.J. Appellant was on top of Jimenez and it looked as if the two were “punching each other.” The two eventually stood up and struggled against the wall. Jimenez then ran down the hallway and out the front door. It was at this time that K.J. noticed a knife in appellant’s hand. K.J. heard Jimenez screaming in the front yard. After appellant followed Jimenez outside, the screaming stopped.
K.J. saw appellant return to the house, wash his hands, and leave. Before he left, appellant, with the knife in his hand, told K.J. that if he said anything, the “same thing would happen to [him] or something of that matter.” After appellant left the house, K.J. heard the door to the group home’s van close, the engine start, and the van drive away.
K.J. left the home. He saw Jimenez in the front yard, but could not stay there because it made him sick. He ended up at the police department where he reported the homicide.
E.D., a resident at the group home, recalled that appellant and Jimenez argued about appellant wanting to watch television and not go to bed. Appellant told Jimenez he did not have to follow his directions.
An autopsy revealed that Jimenez was stabbed 92 times. He died from a loss of blood due to a stab wound in the neck. Most of the remaining stab wounds were superficial.
J.A., who had run away from the group home prior to the killing, received a call from appellant on the night of the killing asking him for directions to Los Angeles. At the preliminary hearing, J.A. had testified that appellant told him he was in the group home van when he asked for directions. But at trial, J.A. denied that appellant told him he had stolen the group home van or that he intended to kill Jimenez.
Isa Ribadu, the owner of the group home, spoke to J.A. a few days after the murder. J.A. told him that appellant had called him before the murder asking for a ride. J.A. had called appellant back to tell him he could not get him a ride, but appellant told him, “‘Don’t worry about it. I have it taken care of.’”
Appellant told Maura Espitia, a counselor at the group home, that he did not like Jimenez. She also had received a phone call from J.A. a few days after Jimenez was killed. At that time, J.A. told her he knew appellant “was going to do it.”
Appellant’s Statement
Appellant escaped to Mexico after the killing and was arrested four months later when he attempted to return to California. In a statement made to officers following his arrest, and played for the jury, appellant said he had been doing well in the group home until Jimenez began working there. Appellant had a lot of anger because his stepfather and his mother’s “other boyfriend” used to hit him “a lot.” His grandparents lived in California, but refused to take him when he was close to being released from juvenile hall. Appellant denied that he had an anger problem and blamed getting into trouble on other’s attempts to “do stuff” to him. When this happened, appellant would recall events from his childhood and became angry and aggressive.
Appellant was kicked out of a prior group home because he got into trouble. One of the other residents in the group home, a Norteno gang member, challenged appellant because he had friends in the Bulldogs gang. The other resident attempted to hit appellant, so appellant struck him in the head.
When Jimenez started working at the group home, he told appellant that appellant was a “stupid … Mexican” and “good for nothing.” On the day Jimenez was killed, Jimenez and appellant had a confrontation because appellant did not want to go to bed. Jimenez called appellant a “bitch” and told him he had “‘better be careful.’” Later, Jimenez entered appellant’s room and hit him “a couple times” breaking his nose and lip. When Jimenez tried to pull down appellant’s pants, appellant became angry and remembered he had a folding knife under his bed. Jimenez continued to hit him, so appellant pulled out the knife and stabbed Jimenez in the neck.
Appellant claimed he blacked out, but recalled being struck again. He also recalled chasing Jimenez and stabbing him repeatedly. Appellant chased Jimenez outside and stabbed him “a couple times in the neck.” Appellant became so angry that he kept stabbing Jimenez until Jimenez stopped moving.
Covered in blood, appellant became afraid and paranoid and decided to leave the group home. He removed the van keys from Jimenez’s pocket, went to his room and grabbed some possessions, and got into the van and left.
Before killing Jimenez, appellant had told J.A. he was going to run away if Jimenez was not removed from the group home. Appellant also had called J.A. after the killing.
Defense Evidence
Appellant did not testify at trial. The defense admitted that appellant killed Jimenez, but argued it was not done with premeditation or malice aforethought. Instead, defense counsel urged the jury to find appellant guilty of manslaughter. To advance his defense theory, appellant called Dr. Edwyn Ortiz-Nance, a clinical psychologist, to establish that appellant acted not with premeditation and deliberation but on impulse, based on the circumstances leading up to Jimenez’s death.
Dr. Ortiz-Nance did a psychological evaluation of appellant, which consisted of three interviews with appellant, a variety of clinical tests, and a review of his police records. He also reviewed information on an interview done with appellant’s mother. According to Dr. Ortiz-Nance, appellant’s mother was barely in her teens when he was born. Appellant’s mother was an inconsistent caregiver and appellant’s grandparents provided no support structure. Appellant was subjected to physical violence and also witnessed his mother involved in violence. He left home at age 13 to avoid physical abuse by his mother’s boyfriend, whom appellant described as “lazy and mean.”
Appellant worked in construction in Mexico for awhile, and when he returned to the United States to go to school, his grandparents would not enroll him. Testing done at age 17 showed appellant’s maturity level and reasoning abilities to be that of a nine-and-a-half-year old child.
Dr. Ortiz-Nance opined that appellant suffered from “reactive attachment disorder.” The disorder develops in the first three years of life where the child cannot trust his or her caregivers for protection due to neglect or abuse. Such children learn to trust only themselves and only situations where they are in control. They have a need to test their environment constantly to assess their level of control. A loss of control is perceived as a danger to their very survival. The predominant emotion of such children is fear, and they feel safest alone. They often behave impulsively to escape a situation in which they feel a loss of control. The more controlling an adult is, the more fearful such a child becomes. A child with this disorder who feels threatened will lash out and do whatever he or she can to escape the situation. These responses are not deliberate, but are instead deep subconscious emotional responses.
DISCUSSION
1. Limitation on the Scope of Defense Expert’s Testimony
Appellant contends that the trial court placed erroneous limitations on the scope of Dr. Ortiz-Nance’s testimony, namely, it precluded the expert from relating appellant’s psychiatric condition to the specific circumstances of the charged crime and precluded testimony regarding appellant’s upbringing that was necessary to establish foundational facts on which the expert’s opinion was based. Appellant also contends the trial court undermined the expert’s testimony by (a) making remarks during voir dire indicating the court’s skepticism of psychiatric testimony, and (b) interrupting the expert’s testimony at trial with remarks that implied the expert’s opinion was without a proper factual basis. Appellant alleges these errors resulted in a denial of his constitutional right to present a defense, to due process, and to a fair trial. We address each contention in turn.
A. Limitation on Expert Testimony on Appellant’s Mental Disorder
The defense proffered the testimony of Dr. Ortiz-Nance, a mental health expert who evaluated and diagnosed appellant and whose testimony, according to appellant, “was relevant to whether appellant had formed the necessary mental states for murder, and to whether appellant actually but unreasonably believed in the need to defend himself from imminent peril.”
At the Evidence Code section 402 hearing prior to trial, Dr. Ortiz-Nance stated he would testify that under the specific circumstances leading to this homicide, someone with reactive attachment disorder would have felt extreme fear and a loss of control, which would have triggered a physically aggressive response motivated by a pathological need to regain a feeling of control over the situation. He also would testify that, once this irrational response was triggered, someone with appellant’s condition would have been on “automatic pilot” until the reaction burned itself out.
Initially, the trial court ruled that expert testimony would be permitted for the limited purpose of determining whether a person with reactive attachment disorder can premeditate and deliberate to form intent. While Dr. Ortiz-Nance was not to testify that appellant’s reaction was consistent with that of a person with reactive attachment disorder, he could testify that a person with the disorder might behave or feel a certain way.
The following day, the court returned to the issue and ruled that Dr. Ortiz-Nance could “talk about [appellant’s] mental condition and what the characteristics of that mental condition are, but he’s not going to be able to testify that that affected [appellant’s] intent.” Relying on People v. Nunn (1996) 50 Cal.App.4th 1357, 1365, the court stated that Dr. Ortiz-Nance could testify that appellant’s condition could cause him to “act[] impulsively under certain particular circumstances, ” but not “to conclude that [appellant] had, in fact, acted impulsively, that is without the intent to kill.”
At trial, defense counsel did not question Dr. Ortiz-Nance about appellant’s behavior and whether it was consistent with the characteristics of reactive attachment disorder, asked no questions about how someone with the disorder might have reacted under the circumstances of the crime, and asked no hypothetical questions. Instead, as argued by appellant, defense counsel elicited Dr. Ortiz-Nance’s expert opinion that appellant suffered from reactive attachment disorder, and then confined the direct examination to generalities about how children with the disorder might behave.
Appellant contends now that the court’s “initial ruling placed impermissible limitations on the scope of the expert’s testimony” because the court “made it clear that the doctor could not testify that appellant’s reaction was consistent with that of a person with Reactive Attachment Disorder.” Although appellant recognizes that the court’s subsequent ruling “may have broadened the scope of what [it] would allow, ” he complains that the court “did not make it clear that [it] was doing so, as the ruling was couched in the language of limitations.” We find no error.
The California Supreme Court has summarized a defendant’s right to present expert testimony in support of a mental state defense:
“A criminal defendant has the due process right to the assistance of expert witnesses, including the right to consult with a psychiatrist or psychologist, if necessary, to prepare his defense. [Citation.] The Sixth and Fourteenth Amendments to the United States Constitution also guarantee a defendant’s right to present the testimony of these expert witnesses at trial. [Citation.]
“Nonetheless, expert psychiatric testimony may be limited by statute. [Citation.] Section 28, subdivision (a) provides that evidence of mental illness ‘shall not be admitted to show or negate the capacity to form any mental state.’ Subdivision (b) of section 28 states that as a ‘matter of public policy there shall be no defense of diminished capacity, diminished responsibility, or irresistible impulse in a criminal action.…’ Section 29 prohibits expert witnesses from directly stating their conclusions regarding whether a defendant possessed a required mental state. It provides, ‘[i]n the guilt phase of a criminal action, any expert testifying about a defendant’s mental illness, mental disorder, or mental defect shall not testify as to whether the defendant had or did not have the required mental states …. The question as to whether the defendant had or did not have the required mental states shall be decided by the trier of fact.’” (People v. San Nicolas (2004) 34 Cal.4th 614, 661-662.)
In People v. Nunn, on which the trial court relied in making its ruling here, the court held that the trial court did not abuse its discretion under section 29 when it prohibited the defendant from eliciting an expert opinion that the defendant acted impulsively without an intent to kill when he fired a rifle at several people who allegedly refused to move away from his fence. (People v. Nunn, supra, 50 Cal.App.4th at pp. 1361, 1365.) The court held that it would have been permissible for the expert to opine that the defendant, because of his psychological trauma, tended to overreact to stress and apprehension, that such condition could result in the defendant acting impulsively under certain conditions, and that the encounter with the men at the fence was the type that could result in an impulsive reaction from someone with the defendant’s mental condition. But what the expert “could not do, and what the defense proposed he do here, was to conclude that [the defendant] had acted impulsively, that is, without the intent to kill, that is, without express malice aforethought.” (Id. at p. 1365.)
Here, the court initially ruled that Dr. Ortiz-Nance could not offer an opinion regarding appellant’s actual state of mind at the time of the killing. The court ruled that (1) the doctor could testify that he diagnosed appellant as suffering from reactive attachment disorder, (2) a person with the disorder might react impulsively under certain circumstances, and (3) a person with the disorder might be inordinately fearful, while a person without the disorder would not. The court also ruled that Dr. Ortiz-Nance could testify about the characteristics of the condition, but not whether appellant, under the circumstances presented, reacted consistently with those characteristics.
In its ruling the following day, the trial court further addressed the issue of appellant’s mental state, ruling that “because of [appellant’s] history of psychological trauma, ” Dr. Ortiz-Nance would be permitted to “testify that [appellant] tended to overreact to stress and apprehension … [and] that this condition could result in the reactive attachment disorder, acting impulsively under certain particular circumstances.” The expert would not, however, be permitted “to conclude that [appellant] had, in fact, acted impulsively, that is without the intent to kill.” The expert would be permitted to “talk about [appellant’s] mental condition and what the characteristics of that mental condition are, but he’s not going to be able to testify that that affected [appellant’s] intent. He can just testify what the characteristics of that mental condition are. And then the jurors will have to determine whether that affected [appellant’s] ability to have the requisite intent to premeditate or deliberate.…”
We find that the trial court’s ruling, despite appellant’s claim to the contrary, plainly and properly informed trial counsel that counsel could elicit testimony from Dr. Ortiz-Nance regarding appellant’s mental disorder and how it might affect appellant’s mental state, but could not elicit an opinion regarding appellant’s actual state of mind at the moment of the killing. (People v. Coddington (2000) 23 Cal.4th 529, 583, disapproved on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13 [“Sections 28 and 29 do not preclude offering as a defense the absence of a mental state … or presenting evidence in support of that defense. They preclude only expert opinion that the (mental state) element was not present”].) And, in fact, Dr. Ortiz-Nance testified extensively regarding his diagnosis that appellant suffered from reactive attachment disorder and also about the affect that the disorder might have on a person’s conduct and state of mind when the person felt threatened.
The trial court’s ruling was well within the bounds of section 29, and we reject appellant’s claim to the contrary.
B. Limitation on Evidence Regarding Appellant’s Abuse as a Child
The prosecution filed a motion in limine, pursuant to Evidence Code section 352, asking the court to exclude evidence of appellant’s abuse as a child and arguing there was substantial danger of “ undue prejudice to the People from the sympathy this evidence will produce.” At the subsequent hearing on the motion, the prosecution clarified its position that it was asking the court to limit the quantity of such evidence, lest it become “cumulative” and that it was “not necessary … to start bringing in his mother, his brother, his other brother, to just keep hammering the point.”
Defense counsel stated he would most likely call only one person, appellant’s mother. Counsel also stated he preferred a stipulation, as appellant’s mother would need to be brought from Mexico.
The trial court subsequently ruled that Dr. Ortiz-Nance would be allowed to testify that he had considered claims and incidents of child abuse, without going into detail, and about how that abuse affected his medical opinion. But the court stated it would not allow testimony regarding the details of child abuse, including testimony from appellant’s mother and sister. Defense counsel then stated he was prepared to enter into a stipulation stating appellant had been beaten periodically by his stepfather. The prosecution agreed. At trial, however, no such stipulation was introduced, and Dr. Ortiz-Nance testified that, in reaching his diagnosis, he had relied on appellant’s statements to him regarding abuse and neglect he had suffered as a child.
Appellant now claims that the trial court abused its discretion in excluding testimony from appellant’s mother and sister because the testimony was necessary to prove that the child neglect and abuse upon which Dr. Ortiz-Nance relied actually occurred. He also contends the exclusion of evidence violated his constitutional right to present a complete defense. We disagree.
Evidence Code section 210 provides that “‘[r]elevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” But even if evidence is relevant, a court “in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid Code, § 352.)
“On appeal, ‘an appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence.…” (People v. Hovarter (2008) 44 Cal.4th 983, 1007-1008.) A trial court abuses its discretion when its ruling falls outside the bounds of reason. (People v. Benavides (2005) 35 Cal.4th 69, 88.)
Here, we cannot say the trial court abused its discretion in limiting the testimony about abuse and neglect. Further, we note that it was defense counsel who first suggested the use of a stipulation that appellant’s stepfather had subjected him to periodic physical abuse. Counsel wanted the stipulation in order to avoid transporting appellant’s family from Mexico. He never suggested that the stipulation upon which the parties agreed would be deficient. And while the record appears to indicate that the stipulation was not actually introduced at trial, the trial court had no way of foreseeing the subsequent omission and, thus, cannot be faulted for excluding the evidence.
As for appellant’s constitutional claims, we discern no violation of any constitutional guaranty. “[F]undamental fairness [is] the touchstone of due process.…” (Gagnon v. Scarpelli (1973) 411 U.S. 778, 790.) Thus, the court’s evidentiary ruling rose to the level of a due process violation only if it denied him the right to present a defense and rendered appellant’s trial fundamentally unfair. Because the court’s ruling did not violate state law in the first instance, we perceive no due process violation. That is also true to the extent that the right to present a defense implicated the Sixth Amendment and with regard to appellant’s Sixth Amendment confrontation clause claim. All of these claims rest on appellant’s claim of error under state law and, because his state law claim fails, his constitutional claim fails as well. “[R]ejection on the merits of a claim that the trial court erred on the issue actually before that court necessarily leads to rejection of the newly applied constitutional ‘gloss’ as well. No separate constitutional discussion is required in such cases, and we therefore provide none.” (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 990, fn. 5 [addressing due process claim that hinged on a claim of state law error].)
C. Limitation on Expert’s Opinion of Appellant’s Characterization of His Childhood
On cross-examination, Dr. Ortiz-Nance acknowledged that appellant had told him that “when he was little, his mother took, quote, good care of him.” On redirect examination, Dr. Ortiz-Nance testified that he did not know whether appellant’s description of his mother as being “always there for him” and appellant’s assertion that she parented him in a “typical wonderful fashion” were because appellant truly believed it or because he was “presenting himself in the most desirable light possible” and “trying to show himself as being very virtuous.” When asked on redirect if Dr. Ortiz-Nance thought appellant had a “distorted” view of his childhood, he responded, “Yes.” The trial court then interjected, stating that the expert “didn’t really know if it’s a distorted view because he can only listen to what the client says and what the mother says.” Defense counsel attempted to clarify that he was asking Dr. Ortiz-Nance the question “based on the evidence that he had before him.” Again, the trial court stated, “He wasn’t there, he doesn’t know.”
Appellant now contends that the trial court’s statements implied Dr. Ortiz-Nance “improperly opined without support or on an improper basis, ” and the court’s comment was “improper, contrary to law, impugned the expert’s opinion, and undermined appellant’s defense.” We find no prejudicial error.
Evidence Code section 801 provides guidelines for admission of expert witness testimony:
“If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is:
“(a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and
“(b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.”
“As a general rule, a trial court has wide discretion to admit or exclude expert testimony. [Citations.] An appellate court may not interfere with the exercise of that discretion unless it is clearly abused. [Citation.]” (People v. Page (1991) 2 Cal.App.4th 161, 187.)
Dr. Ortiz-Nance was able to testify that he did not know whether appellant’s description of his mother was based in reality or because appellant wished to present himself in a good light. He had also earlier described children with reactive attachment disorder as “manipulative” and “li[ars].” In essence, he was able to cast doubt on appellant’s description of his mother. Assuming arguendo that the trial court erred when it limited Dr. Ortiz-Nance’s testimony further on this question, we nevertheless conclude appellant has not shown it is reasonably probable that a verdict more favorable to him would have occurred had the court not done so. (People v. Watson (1956) 46 Cal.2d 818, 836.)
2. CALCRIM No. 360
The trial court instructed the jury concerning the limited use of appellant’s statements and the opinion testimony by Dr. Ortiz-Nance. (CALCRIM Nos. 332, 358, 360.) As given to the jury, these instructions provided:
CALCRIM No. 332:
“Witnesses were allowed to testify as experts and to give opinions. You must [consider] the opinions, but you are not required to accept them as true or correct. The meaning and importance of any opinion are for you to decide. In evaluating the believability of … an expert witness, follow the instructions about the believability of witnesses generally. In addition, consider the expert’s knowledge, skill, experience, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion. [¶] You must decide whether information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence. [¶] An expert may be asked a hypothetical question.”
CALCRIM No. 358:
“You have heard evidence that [appellant] made oral or written statements before the trial. You must decide whether or not [appellant] made any of these statements in whole or in part. If you decide that [appellant] made such statements, consider the statements along with all the other evidence in reaching your verdict. It is up to you to decide how much importance to give such statements.…”
CALCRIM No. 360:
“Dr. Edwin Ortiz-Nance testified that in reaching his conclusions as an expert witness he considered statements made by [appellant]. You may consider those statements only to evaluate the expert’s opinion. Do not consider those statements as proof that the information contained in the statements is true.”
Appellant now contends CALCRIM No. 360 was given in error. Appellant focuses on one particular sentence in CALCRIM No. 360, which instructed the jurors that they were not to rely on statements made by appellant to Dr. Ortiz-Nance for their truth but only to evaluate the expert’s opinion. As argued by appellant:
“The statements relied on by the expert described the abuse and neglect suffered by appellant during his upbringing [citation], facts the truth of which were essential to the diagnosis rendered by the expert of reactive attachment disorder [citation], which in turn was essential to [show] that appellant did not form the mental states necessary for conviction of murder. There was no evidence before the jury other than appellant’s statements recounted by the expert that established the foundational facts of abuse and neglect which were essential to the expert’s diagnosis. Without these necessary foundational facts, the expert’s opinion was void, and appellant was utterly deprived of his defense.”
In In re Spencer (1965) 63 Cal.2d 400, the court held that a court-appointed psychiatrist may examine a defendant without his or her attorney present and that said psychiatrist may testify at trial only if the defendant put his or her mental state in issue. In such event, an instruction is required to explain to the jury that the defendant’s incriminating statements to said psychiatrist should not be accepted as proof of the truth of the facts disclosed by the defendant, but rather only for the limited purpose of showing the information relied upon by the psychiatrist in reaching his or her opinion. (Id. at pp. 411-413.) Relying on In re Spencer, appellant argues that CALCRIM No. 360 was not applicable here because appellant’s statements to Dr. Ortiz-Nance did not constitute admissions and were not inculpatory in nature.
But in People v. Elliot (2005) 37 Cal.4th 453, our Supreme Court held that CALJIC No. 2.10, the predecessor instruction to CALCRIM No. 360, was properly given in a situation analogous to that presented here. In Elliot, a defense expert testified that, in his opinion, the defendant was manic-depressive and had an antisocial personality disorder. The expert based his opinion on various sources, including the defendant’s statements that he had been beaten as a child and suffered from a long-term addiction to alcohol, which the expert recounted without a hearsay objection by the prosecutor. At the prosecution’s request, the trial court instructed with CALJIC No. 2.10. (People v. Elliot, supra, at p. 480.)
On appeal, the Elliot defendant argued the instruction removed mitigating facts from the jury’s consideration. (People v. Elliot, supra, 37 Cal.4th at p. 480 .) Citing People v. Stanley (1995) 10 Cal.4th 764, the Supreme Court found the instruction appropriate except “in rare cases, [where] due process considerations may override state evidentiary rules so as to ‘require admission, at the penalty phase of a capital trial, of a highly relevant and reliable hearsay statement.’” (People v. Elliot, supra, at p. 481.) Not to instruct on the limited purpose of the defendant’s statements “would allow defendants to insulate factual assertions and self-serving testimony from any cross-examination simply by having an expert relate them to the jury. [Citation.]” (Ibid.) In addition, the defense was free to introduce competent evidence, including the defendant’s testimony, on the matters referred to in the interview. Elliot concluded that the instruction in both Stanley and Elliot was properly given “to clarify that defendant’s statements to [the expert] were to be considered only for the limited purpose of assessing [the expert’s] opinion. [Citations.]” (Ibid.)
We follow People v. Stanley and People v. Elliot in rejecting appellant’s analogous claim of error. The limiting instruction here was properly given by the trial court to clarify that appellant’s statements to Dr. Ortiz-Nance were to be considered only for the limited purpose of assessing the doctor’s opinion. To do otherwise would allow appellant “to insulate factual assertions and self-serving testimony from any cross-examination simply by having an expert relate them to the jury.” (People v. Elliot, supra, 37 Cal.4th at p. 481.)
3. Judicial Misconduct
Appellant contends that judicial misconduct during voir dire and trial denied him his constitutional right to due process and a fair trial. Specifically, he argues several comments by the trial judge (a) suggested special approval of prosecution witnesses, (b) diminished the burden of proof, and (c) undermined the defense. We disagree that the trial court’s conduct resulted in an unfair trial.
Criminal defendants have a fundamental right to a fair trial. Due process requires judges to protect the defendant’s right to a fair and impartial trial by conducting the proceedings without bias. (Bracy v. Gramley (1997) 520 U.S. 899, 904-905.) An accused’s Sixth Amendment right to an impartial jury hinges on the trial court’s fairness. To this end, the California Code of Judicial Ethics requires judges to treat all parties with patience and courtesy, and to perform their duties without bias. (Cal. Code Jud. Ethics, canon 3B(4) & (5).) In carrying out this duty, “‘[j]udges … should be exceedingly discreet in what they say and do in the presence of a jury lest they seem to lean toward or lend their influence to one side or the other.’ [Citation.]” (People v. Burnett (1993) 12 Cal.App.4th 469, 475.) Because judges can easily influence the decisions of jurors, the court must avoid “even the appearance” of favoring the prosecution. (United States v. Sheldon (5th Cir. 1976) 544 F.2d 213, 218.) Jurors expect no less, and “rely with great confidence on the fairness of judges, and upon the correctness of their views expressed during trials.” (People v. Sturm (2006) 37 Cal.4th 1218, 1233.)
To support his argument, appellant cites to numerous instances in the record.
A. References to the Crime as “Murder”
During voir dire, the trial court referred to the crime on two occasions as “the murder.” While the court did state that a murder occurred, it immediately corrected itself. In the first instance, the trial court stated, “This is a murder. And it’s a murder that was-or a killing charge of murder. That’s all-it is a charge, I should say. Whether it’s a murder or not is for you to decide.” In the second instance, the court stated that the victim “was murdered.” The court again corrected itself, stating the victim “was killed. And that’s a bad situation. And [the victim] didn’t deserve what he got, but he was killed. I keep on slipping into that saying it was murder, but that is incorrect. We don’t know that yet.”
In addition, during jury instructions, the court stated:
“At the beginning of this trial, I made certain comments during voir dire that this was a murder. And I corrected myself at the time. This is not a murder until you say it’s a murder. You are the judges as [to] whether it’s a murder, it’s a homicide, whether it’s first degree murder, second degree murder, involuntary manslaughter, or voluntary manslaughter. That’s for you to decide if, in fact, you find those charges to be-find him guilty beyond a reasonable doubt.”
B. Definition of Reasonable Doubt
Appellant contends that the trial court reduced the prosecution’s burden of proof by giving an erroneous definition of reasonable doubt during voir dire as follows:
“[Appellant] is presumed innocent until the People can prove him guilty beyond a reasonable doubt. That doesn’t mean beyond all doubt or all possible doubt. It means beyond a reasonable doubt. And there is a definition of that, but, basically, you’ll know it when you see it when they’ve done it.” (Italics added.)
But placed in context, the statement was immediately preceded with, “I’ve already given you a little bit of the law. And probably the most important part of that law is presumption of innocence.” And the statement was immediately followed with, “And will you all promise me that you’ll hold the prosecutor to that burden, no greater burden, no lesser burden? Is there anybody who couldn’t do that?”
In addition, before trial began, the court defined “reasonable doubt” with CALCRIM No. 103 as follows:
“I will now explain the presumption of innocence and the People’s burden of proof. [Appellant] has pled not guilty to the charge. The fact that a criminal charge has been filed against [appellant] is not evidence that the charge is true. You must not be biased against [appellant] just because he has been arrested, charged with a crime, or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove [appellant] guilty beyond a reasonable doubt. [¶] Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all of the evidence that was received throughout the entire trial. Unless the evidence proves [appellant] guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.”
The court gave the same instruction at the end of trial pursuant to CALCRIM No. 220.
C. Reference to Child Abuse as an Excuse for the Crime
Appellant contends the trial court undermined his defense by suggesting, during voir dire, that evidence of appellant having been subjected to child abuse was offered as an excuse and to get a “free ride.” During voir dire, the trial court posed numerous questions to the prospective jurors; several of these questions involved child abuse:
“… Does anybody feel that because a person has been abused as a child, that they are automatically entitled to sympathy so that they can’t be held accountable for what they do as an adult? Anybody feel that way or they shouldn’t be held accountable?”
“[T]here will be testimony, and there’s been some reference to it already, that [appellant] was hit periodically by his stepfather and that situation can be considered by you for what it’s worth, but does anybody feel automatically that if a person has been beaten or abused as a child, that that gives them added sympathy when they’re an adult, that that should be something that gives them a free ride, if you will, when they’re an adult? Anybody feel that way?”
“… During the course of the evidence, you will also hear-or there’s been a stipulation, actually, that [appellant] during his childhood was hit by his stepfather at times, and what that will be worth to you is what you decide. But would any of you-you’re not to give him any undue sympathy or prejudice or bias against him because of that experience. Does anybody feel that those kinds of experiences as a child automatically make you less culpable or more culpable as an adult? Anybody?”
But the court also presented the opposite side of the question when it asked, “Does anybody automatically feel that because a person has been abused as a child, that they automatically must be guilty of a charge of abuse? They’ve experienced it, they must-that’s their predisposition? Anybody feel that way?”
D. Reference to Skepticism about Psychiatric Testimony
Appellant contends that numerous remarks by the trial court conveyed the court’s own skepticism about psychiatric testimony. During voir dire, the court posed numerous questions to the prospective jurors involving psychiatrists and psychiatric testimony:
“Does anybody have any biases against psychologists or psychiatrists to the extent of, well, you know, ‘It’s witch doctors. They don’t really know what’s going on. I’m not going to believe anything a psychiatrist says or psychologist says’? Anybody feel that way? [¶] Does anybody feel like, ‘They’ve gone to school for a number of years, I’m going to believe anything a psychologist or psychiatrist believes or says. They’ve had the training. I’m just going to believe them’? Anybody like that?”
“Anybody feel that if somebody has undergone psychiatric or psychological care, that they should be given special sympathy and shouldn’t be held to the same standard? Anybody believe that right off the bat?”
“Now, there may be some testimony regarding psychology or psychiatry. We all have opinions about those professions. Some people believe that it’s kind of like witch craft, that they kind of pull these ideas out of the air. Other people believe they’ve had all this training, they know what they’re talking about, ‘I’m going to believe everything they say.’ They know that’s what they do, and it’s a valid science, and ‘I’m going to believe everything the doctors say.’”
But immediately following the first question, the trial court stated that each witness “starts out the same. You listen to their testimony and their qualifications and you give it the value you feel it deserves, but if you’re coming in here with some predisposition one way or the other, we don’t want to be there, okay.” Preceding the second question, the court had stated, “Does anybody feel that psychologist [sic] or psychiatry is not a valid science and should not be considered in a court proceeding in any way? Anybody feel that way?” And following the third question, the court stated, “[Y]ou can believe either way, but you have to be willing to listen to their testimony and give it the credibility that you feel it deserves. Does anybody believe that courts of law are no place for psychology or psychiatry, there should be no evidence of that, anybody believe any of that?”
E. Trial Court’s Sympathy for the Victim
Appellant contends the trial court’s remarks during voir dire implied that the jury could feel sympathy toward the victim but not toward appellant. During voir dire, the court stated, “[Jimenez] was killed.… And we feel sympathy for [him].” That statement, however, was immediately followed by: “But that sympathy can’t come into play in this case. Your decision must be based on the evidence and not because you feel bad for [the victim] and what happened to him. That’s certainly something you have to consider, but the sympathy aspect of it may not come into play. Can you all promise me that you’ll listen to the evidence and base your decision on the evidence?”
F. Trial Court’s Approval of Witnesses’ Military Connection
Appellant also contends the trial court made statements during trial about various prosecution witnesses that suggested approval of or identification with persons with a military background. Jimenez was a former Marine.
Prosecution witness S.B., who lived in the group home at one point, described Jimenez as “Not laid back at all. Just not real strict, ” to which the court stated, “Sounds like a Marine.”
In another instance, prosecution witness James Hunt, who worked at the group home at the time of the incident, testified that he and the victim were both “ex-military.” At the end of his testimony, the trial court asked Hunt the following:
“The Court: What did you do in the Navy?
“[Hunt]: Military policeman.
“The Court: MD [sic]?
“[Hunt]: Yes.
“The Court: Excellent. Take care. Call your next witness.”
At the end of prosecution witness Alex Espitia’s testimony, the trial court asked, “Are you going into the Marine Corps?” Espitia stated he was not, to which the trial court responded, “You look like you might be a marine. You’ve got that ‘high and tight.’ Thank you, sir. Good luck.”
And finally, during jury instructions, the trial judge stated he was a former Marine. What the trial court actually stated, in context, was:
“I … made a comment regarding the victim sounding like a Marine. Well, I’m a Marine, and I was in the Corps back in the late ’60s. And so sometimes I let my mouth get ahead of my brain. And so when I made that comment, that did not in any way indicate that I felt sympathetic-more sympathetic toward the victim or more non-sympathetic to [appellant]. A Marine, just like anybody else, there are different kinds of Marines just like there are different kinds of people. Just take that as an indication that I did not mean to encourage any additional sympathy for the victim or anger or disfavor towards [appellant].”
As set out above, we have reviewed each of the claimed instances of judicial misconduct and placed each in context. Our review reveals that, in several instances, as with the questions on child abuse, psychiatry, and sympathy for the victim, the trial court was attempting to ferret out the prospective jurors’ biases on those subjects. This is an entirely proper and necessary judicial function during jury voir dire. As the court explained in People v. Martinez (1991) 228 Cal.App.3d 1456, 1465:
“Some members of a community are of the opinion the criminal justice system does not work, believe all criminal defendants are guilty and believe law enforcement is infallible. The purpose of questioning by the court and counsel is to convince jurors to reveal their thoughts and opinions candidly. This is to the criminal defendant’s advantage since jurors who reflect such attitudes can be discovered and eliminated from the process.”
As for the statements suggesting the crime was murder, the trial judge corrected those statements several times, including during jury instruction. The judge correctly instructed on reasonable doubt, both before and after trial. The judge also explained his statements concerning the military and instructed the jury that he did not make the statements to encourage any favor for the victim or disfavor toward appellant. We presume the jury followed these instructions. (People v. Romo (1975) 14 Cal.3d 189, 195.) Hence, the giving of these instructions served to dispel any prejudice flowing from the challenged comments. (People v. Harbolt (1988) 206 Cal.App.3d 140, 158.)
In total, while it may be true that some of the trial court’s comments “‘would have been better left unsaid, ’” we do not believe the court’s behavior “‘was so prejudicial that it denied [appellant] a fair, as opposed to a perfect, trial.’ [Citation.]” (People v. Snow (2003) 30 Cal.4th 43, 81.)
4. Ineffective Assistance of Counsel
Appellant contends that he was denied effective assistance of counsel because his trial attorney committed various omissions, including: (1) failing to elicit testimony from the defense expert to link appellant’s actions to his mental disorder; (2) failing to ask a hypothetical question about how a person with appellant’s disorder might have reacted under the circumstances of the crime; (3) failing to introduce the stipulation that appellant was “beaten periodically by his stepfather”; (4) failing to object to CALCRIM No. 360; and (5) failing to object to numerous instances of improper judicial comments.
In order to prove a claim of inadequate representation, an appellant must show that “trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates.” (People v. Pope (1979) 23 Cal.3d 412, 425, overruled on other grounds in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10, in turn overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) Effective and competent representation requires “counsel’s ‘diligence and active participation in the full and effective preparation of his client’s case.’ [Citation.]” (People v. Pope, supra, at pp. 424-425.) We will reverse a conviction on the ground of inadequate counsel, however, only if the appellant affirmatively shows that the omissions of defense counsel cannot be explained on the basis of any knowledgeable choice of tactics. (People v. Zapien (1993) 4 Cal.4th 929, 980.)
The appellant also must establish prejudice from counsel’s acts or omissions. Ordinarily, prejudice must be proven affirmatively; the appellant must establish the reasonable probability that, had counsel’s representation been adequate, the proceeding would have had a different result. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Pope, supra, 23 Cal.3d at pp. 424-425.) Prejudice based on ineffective assistance of counsel is presumed only “[i]f counsel’s deficiencies were so severe as to result in a complete breakdown of the adversary process.…” (People v. McDermott (2002) 28 Cal.4th 946, 991.) “Otherwise, the defendant must show prejudice ‘in the sense that it “so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”’…” (Ibid., quoting People v. Kipp (1998) 18 Cal.4th 349, 366.)
While reviewing courts will normally first determine if counsel’s performance met the applicable standard of care before turning to the question of prejudice, it is not necessary to follow this approach in all cases. “‘If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.’ [Citation.] A defendant must prove prejudice that is a ‘“demonstrable reality, ” not simply speculation.’ [Citations.]” (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.)
Because we have determined in part 2, ante, that no error occurred in the giving of CALJIC No. 360, and in part 3, ante, that no prejudicial judicial misconduct occurred, we do not address those issues further in this context. Instead, we limit our discussion here to appellant’s remaining contentions, namely, that trial counsel was ineffective when he (a) failed to elicit testimony from the defense expert to link appellant’s actions to his mental disorder, (b) failed to ask a hypothetical question about how a person with appellant’s disorder might have reacted under the circumstances surrounding the crime, and (c) failed to introduce the stipulation that appellant was “beaten periodically by his stepfather.” Appellant claims that defense counsel’s failures resulted in appellant being unable to prove that he acted in imperfect self-defense, thus reducing the charge to manslaughter, or that he acted impulsively, thus eliminating a finding of premeditation or deliberation and reducing the crime to second degree murder.
“… If the record contains an explanation for the challenged aspect of counsel’s representation, the reviewing court must determine ‘whether the explanation demonstrates that counsel was reasonably competent and acting as a conscientious, diligent advocate.’ [Citation.] On the other hand, if the record contains no explanation for the challenged behavior, an appellate court will reject the claim of ineffective assistance ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.…’ [Citation.]” (People v. Cudjo (1993) 6 Cal.4th 585, 623.)
Dr. Ortiz-Nance opined that appellant suffered from reactive attachment disorder because his mother was too young and too often absent to bond with him in his early years. The diagnosis also was based on statements made to Dr. Ortiz-Nance by appellant, relating that he had been neglected as a younger child and physically abused by his mother’s boyfriend.
“Stepfather” and “boyfriend” are used interchangeably in the record.
Trial counsel, while conceding appellant killed the victim, attempted to minimize appellant’s culpability by arguing that appellant actually believed he was defending himself when he killed the victim. Counsel argued also that appellant acted impulsively, negating any premeditation and deliberation. Both of these theories were dependent on Dr. Ortiz-Nance’s theory that appellant suffered from reactive attachment disorder, a condition that originated from abuse and neglect in the first three to four years of life.
But while Dr. Ortiz-Nance provided the necessary basis for his opinions-his testimony that he had considered statements appellant made to him about his childhood-the jury was instructed pursuant to CALCRIM No. 360 to “consider those statements only to evaluate the expert’s opinion” and not as “proof that the information contained in the statements is true.” Appellant is thus correct in his assertion that defense counsel failed to place before the jury any competent evidence that appellant, in fact, had been neglected or abused earlier in his life. Defense counsel did not, for example, introduce the stipulation that appellant had been “beaten periodically by his stepfather, ” which had been discussed early in the proceedings when the prosecution moved to limit evidence that appellant had been a victim of abuse.
Appellant is also correct that, in his examination of Dr. Ortiz-Nance, defense counsel did not ask questions designed to elicit information explicitly linking appellant’s mental disorder to his attack on the victim Jimenez. Instead, counsel merely elicited Dr. Ortiz-Nance’s diagnosis, the reasons for it, and the typical behaviors that might be expected of a young person suffering from the disorder. Neither did defense counsel fashion a hypothetical question linking appellant’s actions to his mental disorder. (See People v. Boyette (2002) 29 Cal.4th 381, 449 [hypothetical question based on facts introduced at trial is proper tool for examination of expert witness].)
In an Evidence Code section 402 hearing, at which Dr. Ortiz-Nance testified about appellant’s disorder, defense counsel had been more successful in describing the relationship between appellant’s disorder and his reaction to the situation in which he found himself on the night of the crime. Dr. Ortiz-Nance testified at the Evidence Code section 402 hearing, for example, that a person suffering from reactive attachment disorder would have reacted that night predominantly out of fear and would have been on “automatic pilot” until the person’s reaction to fear burned itself out.
On the basis of the record before us on this appeal, however, we cannot ascertain why counsel failed to pursue certain evidence or take advantage of asking a hypothetical question. Counsel may have made a tactical choice in not putting into evidence what would have been, at best, a weak stipulation. Counsel may have determined that appellant’s mother’s testimony would not have been helpful. Perhaps counsel thought it best to rely on evidence submitted by the prosecution: appellant’s tape-recorded confession, in which he described some of the abuse and neglect he had suffered as a younger child.
As to the extent of his examination of Dr. Ortiz-Nance, we cannot say that, as a matter of law, the examination was incompetent.
As the California Supreme Court has often noted, claims such as those made by appellant are better suited to a petition for writ of habeas corpus than to an appeal:
“[N]ormally a claim of ineffective assistance of counsel is appropriately raised in a petition for writ of habeas corpus (see, e.g., People v. Mendoza Tello [(1997)] 15 Cal.4th 264, [266-267]), where relevant facts and circumstances not reflected in the record on appeal, such a counsel’s reasons for pursuing or not pursuing a particular trial strategy, can be brought to light to inform the two-pronged inquiry of whether counsel’s ‘representation fell below an objective standard of reasonableness, ’ and whether ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ [Citation.]” (People v. Snow, supra, 30 Cal.4th at p. 111.)
Here, the appellate record sheds little light on the basis for the challenged omissions. That is precisely why claims of ineffective assistance of counsel are more appropriately made by petition for writ of habeas corpus, where additional evidence outside the appellate record can be brought to the court’s attention. (See, e.g., In re Cordero (1988) 46 Cal.3d 161 [habeas corpus proceeding exploring whether defense counsel failed to conduct reasonable factual investigation of defendant’s potential defense of intoxication]; In re Avena (1996) 12 Cal.4th 694 [habeas corpus proceeding exploring whether defense counsel should have investigated and presented defense based on defendant’s drug intoxication during crimes and whether he should have challenged admission of taped confession].) The Supreme Court made clear in People v. Mendoza Tello, supra, 15 Cal.4th 264 that an appellate court should not “set aside a jury verdict, and brand a defense attorney incompetent unless it can be truly confident all the relevant facts have been developed.…” (Id. at p. 267.) We therefore do not reach the merits of appellant’s assertions against defense counsel here.
5. Section 654
Appellant argues the trial court violated section 654, which prohibits punishment for two offenses arising from the same act or from a series of acts constituting an indivisible course of conduct (People v. Latimer (1993) 5 Cal.4th 1203, 1216; People v. Harrison (1989) 48 Cal.3d 321, 335), when it imposed separate sentences for both grand theft auto and dissuading a witness. According to appellant, both counts were motivated by a single objective, to flee from the scene of the crime without apprehension, and both occurred during a course of conduct indivisible in time. We disagree.
Section 654, subdivision (a), provides: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.”
“The test for determining whether section 654 prohibits multiple punishment has long been established: ‘Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.’ [Citation.]” (People v. Britt (2004) 32 Cal.4th 944, 951-952.)
“If, on the other hand, defendant harbored ‘multiple criminal objectives, ’ which were independent of and not merely incidental to each other, [the defendant] may be punished for each statutory violation committed in pursuit of each objective, ‘even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.’ [Citation.]” (People v. Harrison, supra, 48 Cal.3d at p. 335.) “‘The principal inquiry in each case is whether the defendant’s criminal intent and objective were single or multiple.’ [Citation.] ‘A defendant’s criminal objective is “determined from all the circumstances.…”’” (In re Jose P. (2003) 106 Cal.App.4th 458, 469.)
Whether multiple convictions were part of an indivisible transaction is primarily a question of fact for the trial court. (People v. Coleman (1989) 48 Cal.3d 112, 162; People v. Avalos (1996) 47 Cal.App.4th 1569, 1583.) We review a challenge under section 654 for substantial evidence to support the trial court’s determination. (People v. Racy (2007) 148 Cal.App.4th 1327, 1336-1337.) Moreover, this deferential standard of review applies whether the trial court’s findings are express or implied. (People v. McCoy (1992) 9 Cal.App.4th 1578, 1585.) Thus, although section 654 was not raised in the trial court here, and the court made no express findings as to its possible application, we must presume from the fact it imposed separate sentences that it found appellant acted pursuant to multiple criminal objectives and must uphold that finding unless there is no substantial evidence to support it.
Appellant’s argument that he stole the van and dissuaded a witness merely to escape the scene of the killing is without merit. Substantial evidence supports the trial court’s conclusion that the two offenses were separate and distinct. Immediately following the killing and before leaving the scene of the crime, appellant threatened K.J., telling him if he “said anything” the “same thing would happened to [him] or something of that matter.” Not only did this statement aid in appellant’s escape, it also was intended to aid him in the subsequent investigation and trial by intimidating one of the only eyewitnesses.
As for stealing the van, there was evidence that even before the murder appellant asked J.A. to give him a ride. He later told J.A., “‘Don’t worry about it. I have it taken care of.’” Appellant’s own statement revealed that he then used the van not only to escape after the killing, but also to return to Mexico. According to appellant, he drove the van south, stopped for one half hour to call J.A. from some friends’ place in Los Angeles, got back into the van and continued driving until he ran out of fuel. After that, he walked the rest of the way to Mexico.
The offenses of dissuading a witness and stealing the van were two separate and distinct crimes, and section 654 does not bar separate punishment for both.
6. Presentence Custody Credits
Finally, appellant contends the trial court erred in not awarding him presentence custody credits. Respondent concedes, and we agree.
A defendant convicted of murder is entitled to credits for time spent in actual custody prior to sentencing, but is not entitled to any conduct credits. (People v. Herrera (2001) 88 Cal.App.4th 1353, 1366.) “[I]t is the duty of the sentencing court to calculate actual days spent in custody pursuant to section 2900.5, subdivision (d).” (People v. Thornburg (1998) 65 Cal.App.4th 1173, 1175-1176, disapproved on other grounds in People v. Buckhalter (2001) 26 Cal.4th 20, 39-40; see also § 2933.2.) When the facts are undisputed, a defendant’s entitlement to custody credits presents a question of law for the appellate court’s independent review, since the trial court has no discretion in awarding custody credits. (People v. Shabazz (1985) 175 Cal.App.3d 468, 473.) Appellant was arrested on October 22, 2007, and sentenced on January 8, 2009, a total of 444 days.
The trial court’s failure to award the proper amount of credits is an unauthorized sentence which may be corrected at any time. (In re Reeves (2005) 35 Cal.4th 765, 774.) We will order that the abstract of judgment be modified to reflect an award of 444 days’ actual presentence custody credits.
DISPOSITION
The judgment is modified to award appellant 444 days’ presentence custody credit. The trial court is directed to prepare an amended abstract of judgment in accordance with this disposition and to deliver it to the Department of Corrections and Rehabilitation. As so modified, and in all other respects, the judgment is affirmed.
I CONCUR: POOCHIGIAN, J.
CORNELL, J.
I respectfully dissent.
I agree with the majority’s analysis of most of the issues presented by appellant Marco Antonio Navarro. The trial court did not impermissibly limit the testimony of Navarro’s expert witness, Dr. Edwyn Ortiz-Nance. Navarro was given ample opportunity to present expert testimony and the trial court’s rulings were within the bounds of Penal Code sections 28 and 29. Nor was there any error in the instructions. And while some of the trial court’s comments perhaps were inappropriate, Navarro was not deprived of a fair trial on the basis of judicial misconduct. Where I disagree with the majority is on the issue of the competency of trial counsel.
The rules for analyzing a claim of ineffective assistance of counsel are well settled. A defendant is entitled to a new trial if he received ineffective assistance of counsel at trial. (People v. Lagunas (1994) 8 Cal.4th 1030, 1036.) “Establishing a claim of ineffective assistance of counsel requires the defendant to demonstrate (1) counsel’s performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient representation prejudiced the defendant, i.e., there is a ‘reasonable probability’ that, but for counsel’s failings, defendant would have obtained a more favorable result. [Citations.] A ‘reasonable probability’ is one that is enough to undermine confidence in the outcome. [Citations.]
“Our review is deferential; we make every effort to avoid the distorting effects of hindsight and to evaluate counsel’s conduct from counsel’s perspective at the time. [Citation.] A court must indulge a strong presumption that counsel’s acts were within the wide range of reasonable professional assistance. [Citation.] … Nevertheless, deference is not abdication; it cannot shield counsel’s performance from meaningful scrutiny or automatically validate challenged acts and omissions. [Citation.]” (People v. Dennis (1998) 17 Cal.4th 468, 540-541 (Dennis).)
“If the record contains an explanation for the challenged aspect of counsel’s representation, the reviewing court must determine ‘whether the explanation demonstrates that counsel was reasonably competent and acting as a conscientious, diligent advocate.’ [Citation.] On the other hand, if the record contains no explanation for the challenged behavior, an appellate court will reject the claim of ineffective assistance ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.…’ [Citation.]” (People v. Cudjo (1993) 6 Cal.4th 585, 623.)
The record here is undisputed. Trial counsel recognized that in the face of the overwhelming evidence of Navarro’s guilt, any attempt to claim innocence would be rejected by the jury. Trial counsel attempted to minimize Navarro’s culpability by arguing that Navarro believed he was defending himself when he killed Jimenez, even though that belief was unreasonable. He also argued that Navarro acted impulsively, thus there was no premeditation or deliberation. These tactics were designed to reduce the crime from first degree murder to either second degree murder or manslaughter.
Both theories were dependent on Ortiz-Nance’s testimony. Ortiz-Nance testified that he administered several psychological tests, interviewed Navarro on at least three occasions, and reviewed several police reports about the incident. He also received transcripts of a recording of an interview of Navarro’s mother. This interview supported the impression that Ortiz-Nance had developed regarding Navarro.
Ortiz-Nance stated that Navarro’s mother was barely in her teens when he was born. Ortiz-Nance opined that it was unlikely that she had the necessary maternal instincts and skills needed to raise a child. Navarro’s grandparents did not appear to support Navarro’s mother in her attempts to raise him, so Navarro was raised only by his mother. It did not appear that she was able to be with him consistently when she was raising him. Navarro also was hit by his mother’s boyfriend, whom Navarro described as lazy and mean. As a result, Navarro left his home at the age of 13. Navarro survived by working in construction and through support from friends. Navarro stated he completed the third grade while in Mexico. He came to the United States to go to school, but his grandparents refused to enroll him.
Test results indicated that Navarro’s thought process was the equivalent of approximately a nine-and-one-half-year-old child. In an attempt to look as virtuous as possible, he tried to hide any information that would suggest he was having problems.
Based on the test results and Navarro’s early history, Ortiz-Nance diagnosed Navarro as suffering from reactive attachment disorder. Ortiz-Nance explained that this disorder results from growing up in an environment of abuse or neglect. As a result of this environment, the child learns that he or she cannot trust adults and can rely only on himself or herself. A young baby, desiring to attach to a parent or other caregiver, will cry, seeking that attachment. The child in an abusive or neglectful environment will learn that crying brings only negative experiences. Therefore, that child will stop crying. As the child begins to grow up, he or she will learn that he or she cannot depend on or trust adults, but can trust only himself or herself. And the only situations the child can trust are those situations in which the child is in control. As a result of these learned behaviors, children with this disorder constantly are testing their environment to see if they are in control. As the child grows, his or her method of testing the environment becomes more sophisticated.
A child with reactive attachment disorder will present as defiant, superficially charming, manipulative, and a liar. The child is hypervigilant because he or she constantly is looking for sources of danger, and because he or she may learn something that will allow him or her to manipulate the environment later. The child feels safest when he or she is alone. The child typically has few friends. He or she will remain in a situation only if he or she feels a benefit can be obtained. If the situation will not benefit the child, he or she will leave.
The child also behaves impulsively. If the child feels threatened, he or she will do whatever is necessary to bring back the feeling of control. The child is driven by a constant fear of not being in control. In most instances the child will attempt to avoid confrontation. But if he or she feels threatened, the child can become aggressive. If faced with a situation where the child feels threatened, he or she will do whatever is necessary to escape the situation.
Because the child has learned adults cannot be trusted, the disorder becomes more apparent when the child is around adults because he or she becomes fearful. If an adult is controlling, then the child becomes concerned because he or she is losing control of the environment. The child often sees adults as tools to be used to get what he or she wants.
A teenager with reactive attachment disorder differs from a typical teenager in that a typical teenager will not turn every situation into a confrontation. Instead, a typical teenager will choose which battles to fight for a variety of reasons. A teenager with the disorder will turn every disagreement into a confrontation.
Ortiz-Nance emphasized throughout his testimony that reactive attachment disorder originates early in a child’s life, usually within the first three or four years.
On cross-examination, Ortiz-Nance testified that he found examples of Navarro’s conduct that were consistent with his diagnosis. Ortiz-Nance found it difficult to determine mother’s parenting style. It appeared that oftentimes mother was not there because she was working or she left Navarro in the care of a boyfriend.
Later, when Navarro arrived in the United States, he felt like his grandparents attempted to control him; so he left. He wanted to set his own rules, including drinking and staying out late. Navarro’s grandmother described him as extremely disrespectful and verbally abusive. The grandmother stated Navarro made threats to harm her and her husband. Navarro also was terminated from a group home for threatening staff and failing to follow the rules.
Navarro reported that his mother took good care of him. Ortiz-Nance opined that Navarro’s statement represented a distorted view of reality.
To analyze Ortiz-Nance’s testimony, the trial court instructed the jury with CALCRIM No. 332. This instruction informed the jury that it could accept or reject an expert’s opinion, and the importance of the opinion was for the jury to decide. In evaluating the opinion, the jury was instructed that it should consider “the expert’s knowledge, skill, experience, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion. [¶] You must decide whether information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence.” (See CALCRIM No. 332.)
The jury also was instructed with CALCRIM No. 360, which informed the jury that while Ortiz-Nance relied on statements made by Navarro, the jury could “consider those statements only to evaluate the expert’s opinion. Do not consider those statements as proof that the information contained in the statements is true.” (See CALCRIM No. 360.)
As the majority concedes, these instructions precluded the jury from considering Ortiz-Nance’s testimony about Navarro’s childhood as evidence that Navarro was abused or neglected as a child. As the majority also concedes, although the prosecution offered on the record to stipulate to the abuse, and perhaps the neglect, trial counsel failed to offer a stipulation or any testimony about Navarro’s childhood.
The result of trial counsel’s failure was to provide expert testimony that lacked any factual support or foundation. There was no admissible evidence presented to the jury about Navarro’s childhood. Ortiz-Nance’s diagnosis was based on his understanding of Navarro’s childhood. He repeatedly explained that reactive attachment disorder was a condition that originated in the first three to four years of a child’s life. Ortiz-Nance opined that Navarro suffered from reactive attachment disorder because his mother did not bond with him because she was often absent or incapable of bonding because of her very young age. The diagnosis also was based on Ortiz-Nance’s understanding that Navarro was abused as a child by his mother’s boyfriend.
While the trial strategy was sound-perhaps the only viable strategy in the face of the overwhelming evidence that Navarro brutally killed Jimenez-the execution of the strategy at trial was inadequate. While Ortiz-Nance provided the necessary opinions and the basis for those opinions, there was no foundation for the opinions. No admissible evidence was introduced to establish that Navarro’s mother was very young when Navarro was born, that she failed to bond with him, that she was often missing from his life, that he was rejected by his grandparents, or that he was physically abused by his mother’s boyfriend at any time during his childhood. In other words, the jury was left to wonder whether Navarro’s childhood was consistent with Ortiz-Nance’s assumptions.
As the Supreme Court has explained, an expert’s opinion is only as good as the facts on which it is based. (People v. Gardeley (1996) 14 Cal.4th 605, 618.) The jury instructions confirmed this principle when the jury was instructed that it should consider the facts on which the opinion was based in deciding whether to accept or reject Ortiz-Nance’s opinion. The need for independent evidence to support Ortiz-Nance’s opinion also was made clear when the jury was instructed that although Ortiz-Nance relied on Navarro’s statements in forming his opinion, the jury could consider those statements only in deciding whether to accept or reject Ortiz-Nance’s opinion. The jury could not consider those statements in deciding whether those events occurred. These instructions were proper and resulted in an absence of any admissible evidence to support the basis of Ortiz-Nance’s opinion.
The rule of law in California is we presume the jury understands and follows the instructions. (People v. Holt (1997) 15 Cal.4th 619, 662.) We follow this rule on a daily basis to affirm judgments in the face of questionable evidence and actions. Following that rule here results in a reversal. While the jury instructions informed the jury that it may reject any opinion that is not supported by the evidence, it is unlikely it would consider an opinion without any evidentiary basis. Thus, the failure of trial counsel to introduce any evidence of Navarro’s childhood to support the assumptions made by Ortiz-Nance emasculated Navarro’s only defense.
In evaluating an attorney’s performance at trial, we are required to apply the two-part test articulated in Dennis, supra, 17 Cal.4th 468 and set forth above. The first issue is whether counsel’s performance was deficient. While we must “indulge a strong presumption” that counsel acted within the wide range of professional competence (id. at p. 541), I can conceive of no justification for failing to introduce evidence to support the client’s only defense. I conclude that trial counsel’s performance fell below that required of a reasonably competent attorney.
The majority suggests the failure to put on any foundational evidence may have been the result of a tactical decision because the proposed stipulation was “weak, ” or Navarro’s mother’s testimony would not have been helpful. (See maj. opn., ante, at p. 26.) I cannot agree with this analysis. Even a weak stipulation is better than no evidence at all. Moreover, Navarro’s mother’s testimony could only be helpful. Ortiz-Nance testified that he reviewed the transcript of an interview with Navarro’s mother and he found the interview helpful. Presumably, Navarro’s mother would have testified in a manner consistent with the interview, and, if she did not, she could have been impeached with the statements she made in the interview. Under either circumstance, the result would have been far superior to no evidence at all, resulting in no defense at all.
The second issue is whether Navarro suffered prejudice from trial counsel’s deficient performance, i.e., whether there was a reasonable probability that Navarro would have obtained a more favorable result had the omitted evidence been introduced. I conclude this is one of those rare cases where trial counsel’s deficient performance shatters my confidence in the outcome of the trial. I cannot state that Navarro would have been convicted of a lesser crime than first degree murder had his mother testified. But I can state unequivocally that Navarro was entitled to have facts presented that would have allowed the jury to consider his only defense. Since there is potential merit to this defense, and the jury was precluded from considering those facts, and consequently Navarro’s defense, I simply cannot have any confidence in the outcome of the trial.
I am confident that all of the relevant facts in this case have been developed. Accordingly, refusing to reach the merits of the issue is merely delaying consideration of an issue that must be addressed. I would reverse the judgment and remand the matter for a new trial because of trial counsel’s ineffectiveness.