Opinion
C087386
10-17-2019
THE PEOPLE, Plaintiff and Respondent, v. COREY LEON WILLYARD, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16F7533)
Defendant Corey Leon Willyard fatally stabbed the victim as he lay sleeping. A jury found defendant guilty of first degree murder with special circumstances and other offenses. (Pen. Code, §§ 187, subd. (a); 190.2, subd. (a)(15).) Following a bifurcated bench trial on the issue of sanity, defendant was found to have been sane at the time of the offenses. Defendant was subsequently sentenced to a determinate prison term of seven years eight months, plus an indeterminate term of life without the possibility of parole.
Undesignated statutory references are to the Penal Code.
Defendant appeals, arguing the trial court committed reversible error by refusing to instruct the jury on provocation and voluntary intoxication. Defendant also argues he received ineffective assistance of counsel. We find no merit in any of these contentions and affirm the judgment.
I. BACKGROUND
Tiffany lived in a trailer in Redding with her mother and other family members. Defendant was a frequent visitor to the trailer, sometimes spending the night on a sofa in the living room, or a recliner in Tiffany's mother's room. Defendant was arrested on unrelated charges on September 3, 2016, and held in the Shasta County jail. While there, defendant wrote Tiffany, expressing an interest in a romantic relationship. Defendant's interest was not reciprocated.
Defendant was released from jail on November 18, 2016. He immediately made his way to Tiffany's trailer, where he spent much of the next two days. There, he encountered Cody. Defendant knew Cody from childhood.
Tiffany had a migraine headache on the evening of November 19, 2016. She retired to her bedroom early, accompanied by Cody, with whom she had recently started a romantic relationship. Defendant expressed unhappiness with this arrangement, and complained about the fact that Cody was allowed in Tiffany's bedroom, while he was not.
Martin lived in a travel trailer nearby. Martin was outside smoking in the early morning hours of November 20, 2016. He spoke with defendant on three separate occasions. On the first occasion, around midnight, defendant told Martin that he wanted to cut Cody's throat because he thought that Cody was drugging Tiffany. On the second occasion, around 2:00 a.m., defendant told Martin that he wanted to take Cody for a ride and "do something" to him. Martin understood defendant to mean that he wanted to beat Cody up. On the third occasion, around 3:00 a.m., defendant told Martin, again, that he wanted to cut Cody's throat. Martin noticed that defendant seemed "agitated" and "hyped[]up." Martin did not take defendant's threats seriously.
Defendant woke Tiffany up at 3:00 a.m. Tiffany thought that defendant was "acting paranoid," but "normal for him." Tiffany got out of bed and busied herself with household chores. She also snorted some methamphetamine with defendant. Around the same time, Tiffany's sister, Christy, returned to the trailer with her boyfriend, Jordan. Christy spoke with defendant, and noticed that he seemed "hyper" and "amped up." However, she thought that defendant's demeanor was "normal for somebody that had been locked up for a few months." Jordan, who was meeting defendant for the first time, thought defendant seemed like "a down-to-earth person" and "someone that had his head on straight and stuff." He gave defendant a cell phone and a knife with a folding blade. Jordan understood that defendant planned to use the knife to clean rocks in his rock collection. He would not have given defendant a knife had he believed that defendant was "a little bit off." Jordan did not see the knife again after giving it to defendant.
Tiffany went back to her room and fell asleep watching television. She was awakened by defendant at approximately 9:00 a.m. Cody continued to sleep. Tiffany spoke with defendant briefly. She did not notice anything unusual about defendant's demeanor. After approximately five minutes, Tiffany got up and went to the en suite bathroom, leaving the bathroom door ajar. Defendant closed and locked the bedroom door from inside while Tiffany was occupied in the bathroom. Moments later, Tiffany pushed the bathroom door open and saw defendant straddling Cody, pinning him to the bed with his knees. Cody was struggling to sit up. Tiffany demanded to know what defendant was doing. Defendant responded, "It's not Cody."
Tiffany screamed for help. Defendant grabbed Tiffany and pushed her against the bathroom door. Tiffany's mother and sister rushed to her aid, breaking down the bedroom door. Tiffany's mother pulled defendant away from Tiffany and began hitting him. Defendant ran away. Tiffany's mother and sister then turned their attention to Cody, who was sitting on the bed, bleeding profusely. Cody died of a single stab wound to the neck, which severed his carotid artery, trachea, and vagus nerve. Cody did not have any defensive wounds.
Defendant made his way to a nearby apartment complex, where he was seen knocking on doors. He eventually broke into the apartment of Peter. Defendant changed into Peter's clothes and stole his pick-up truck. The pick-up truck was later found in a remote location by means of the truck's global positioning system. Defendant was arrested on November 22, 2016, after two days on the run. Defendant was interviewed by police and denied stabbing Cody.
Defendant was charged by information with the first degree murder of Cody (§ 187, subd. (a)—count one), the battery of Tiffany (§ 242—count two), the first degree residential burglary of Peter (§ 459—count three), and the unlawful taking of Peter's pick-up truck (Veh. Code, § 10851—count four). The information further alleged that defendant carried out the murder by lying in wait (§ 190.2, subd. (a)(15)), and personally used a knife in the commission of the offense (§ 12022, subd. (b)(1).) Although special circumstances were alleged, the prosecution did not seek the death penalty. Defendant pleaded not guilty by reason of insanity.
During the guilt phase, defendant admitted stabbing Cody using the knife that Jordan had given him. Defendant also admitted restraining Tiffany, breaking into Peter's apartment and stealing his pick-up truck. Defendant also admitted lying to police.
Another knife was recovered from Tiffany's bedroom, in a toddler bed used by Tiffany's daughter. Although the blade was consistent with the murder weapon, DNA testing on the knife found in the bed was inconclusive.
Defendant explained that he stabbed Cody to protect Tiffany, who he believed was being drugged by Cody. Defendant acknowledged that he never saw Cody drug Tiffany, never heard any person say that Cody was drugging Tiffany, and never saw or heard anything to suggest that Cody posed any threat to Tiffany. Nevertheless, defendant claimed the Holy Spirit told him that Tiffany was being drugged.
Defendant explained that he entered Tiffany's room on the morning of the stabbing because he sensed there was a "spiritual war," involving "spiritual possessions," underway inside, and he wanted to protect her. Defendant recalled that he woke Tiffany up, and then looked at Cody. According to defendant, "there was no spiritual presence coming from Cody," who seemed "like he was dead." Defendant then looked back at Tiffany, and observed that "Cody's spirit was inside of her." According to defendant, "Tiffany was being consumed. You know, her spirit was being drowned out and she had been consumed by Cody who appeared in my eyes as a demon." Defendant recalled that he waited until Tiffany was in the bathroom, and then closed and locked the bedroom door. He then stabbed Cody. Defendant admitted that Cody was lying still on the bed at the time of the stabbing. Defendant also admitted that he intended to kill Cody.
The jury found defendant guilty on all counts. The jury also found that defendant intentionally committed the murder while lying in wait and personally used a knife in the commission of the offense. Defendant waived his right to a jury trial on the issue of sanity, and the trial court found he was sane at the time of the offenses. The trial court sentenced defendant to an aggregate determinate term of seven years eight months, followed by a consecutive indeterminate term of life without the possibility of parole. This appeal timely followed.
II. DISCUSSION
A. Claimed Instructional Errors
Defendant argues the trial court erred in refusing to instruct the jury with CALCRIM No. 522, which deals with the effect of provocation on the degree of murder, and CALCRIM No. 625, which deals with voluntary intoxication. We shall address each claim in turn.
We review claims of instructional error de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.) We determine whether the trial court fully and fairly instructed the jury on the applicable law. (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) "In reviewing a claim that the court's instructions were incorrect or misleading, we inquire whether there is a reasonable likelihood the jury understood the instructions as asserted by the defendant. [Citation.] We consider the instructions as a whole and assume the jurors are intelligent persons capable of understanding and correlating all the instructions. [Citation.]" (People v. Hernandez (2010) 183 Cal.App.4th 1327, 1332 (Hernandez).)
1. Provocation Instruction
Defendant argues the trial court erred in refusing to instruct the jury with CALCRIM No. 522, which provides, in pertinent 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." We conclude the instruction was not required by the evidence. But even assuming the trial court erred, we would find the error to be harmless.
a. Additional Background
After the close of evidence, and before instructing the jury, the trial court made a record of a previous jury instruction conference. The trial court recounted that defendant had requested the jury be instructed with CALCRIM No. 570, concerning voluntary manslaughter under a heat of passion theory, and CALCRIM No. 571, concerning imperfect self-defense. The trial court explained that it had denied both requests. As relevant here, the trial court found there was no substantial evidence to support giving CALCRIM No. 570 on voluntary manslaughter under a heat of passion theory, as "[a]ny evidence of any type of provocation would be the product of the [d]efendant's own standards."
Defense counsel agreed there was no substantial evidence to support a provocation instruction reducing first degree murder to voluntary manslaughter, but argued that "self-deluded provocation may negate malice [a]forethought or at least be able to be a sufficient factual question for the jury to go from first degree down to second degree." The trial court responded, "I did consider it as to reducing the degree of the crime from the first degree to second degree. I think the same analysis would apply, as well. It's not that I don't believe that provocation wouldn't reduce it from a first to a second degree murder. I find that there is simpl[y] not enough evidence to warrant that instruction, either as to a reduction to voluntary manslaughter or second degree murder. So I will adopt my tentative [ruling] on both of those two instructions."
b. Analysis
Defendant concedes he was not entitled to an instruction on voluntary manslaughter based on heat of passion, as there was no objective evidence the sleeping victim said or did anything to provoke an attack. But defendant argues jurors should have been instructed that subjective provocation can reduce first degree murder to second degree murder, as there was substantial evidence, in the form of his own testimony, that the stabbing was a response to his perception that Cody was a demon who had taken possession of Tiffany's body. We disagree.
"First degree murder is an unlawful killing with malice aforethought, premeditation, and deliberation. [Citation.] Malice may be express (intent to kill) or implied (intentional commission of life-threatening act with conscious disregard for life). [Citation.] Second degree murder is an unlawful killing with malice, but without the elements of premeditation and deliberation which elevate the killing to first degree murder. [Citation.] To reduce a murder to second degree murder, premeditation and deliberation may be negated by heat of passion arising from provocation. [Citation.] If the provocation would not cause an average person to experience deadly passion but it precludes the defendant from subjectively deliberating or premeditating, the crime is second degree murder. [Citation.] If the provocation would cause a reasonable person to react with deadly passion, the defendant is deemed to have acted without malice so as to further reduce the crime to voluntary manslaughter. [Citation.]" (Hernandez, supra, 183 Cal.App.4th at p. 1332.)
The word "provocation" has no technical meaning peculiar to the law. (Hernandez, supra, 183 Cal.App.4th at pp. 1332-1333.) Provocation means "something that provokes, arouses, or stimulates." (Merriam-Webster's Collegiate Dict. (11th ed. 2006) p. 1002, col. 1.) Provoke means, "to arouse to a feeling or action," and "to incite to anger." (Ibid.; see also People v. Ward (2005) 36 Cal.4th 186, 215 ["provocation . . . is the defendant's emotional reaction to the conduct of another, which emotion may negate a requisite mental state"].) "[P]rovocation (the arousal of emotions) can give rise to a rash, impulsive decision, and this in turn shows no premeditation and deliberation." (Hernandez, supra, at p. 1334.)
Defendant observes that subjective provocation can arise from a hallucination. He directs our attention to People v. Padilla (2002) 103 Cal.App.4th 675, 677-679 (Padilla), in which the defendant, an inmate in state prison, was charged with murdering his cellmate. (Id. at p. 677.) During the guilt phase, the defendant, Padilla, attempted to introduce the testimony of two psychologists to support a heat of passion defense. (Ibid.) One of the psychologists would have testified that Padilla hallucinated the victim killed his father and brother. (Id. at p. 678.) The other psychologist would have testified generally as to hallucination as provocation. (Ibid.) The trial court excluded the testimony, and the appellate court reversed. (Id. at pp. 677, 680.) The court explained, "A hallucination is a perception with no objective reality" which "cannot arouse the passions of the ordinarily reasonable person." (Id. at pp. 678-679.) "Failing the objective test," the court reasoned, "Padilla's hallucination cannot as a matter of law negate malice so as to mitigate murder to voluntary manslaughter—whether on a 'sudden quarrel or heat of passion' theory of statutory voluntary manslaughter [citations] or on a 'diminished actuality' theory of nonstatutory voluntary manslaughter." (Id. at p. 679, fns. omitted.) "On the other hand," the court continued, "nothing in the law necessarily precludes Padilla's hallucination from negating deliberation and premeditation so as to reduce first degree murder to second degree murder, as that test is subjective. [Citations.]" (Ibid.) Applying the subjective standard, the court found the exclusion of the testimony was prejudicial, as there was a reasonable probability the jury could have concluded that Padilla stabbed the victim in a heat of passion provoked by his hallucination, and could have reduced the murder from first degree to second degree. (Id. at pp. 678-679.) Accordingly, the court vacated the judgment of conviction on first degree murder. (Id. at p. 680.)
The trial court admitted the testimony during the sanity phase. (Padilla, supra, 103 Cal.App.4th at p. 677.)
Relying on Padilla, defendant argues that his hallucinations likewise constitute substantial evidence of subjective provocation, necessitating a provocation instruction. "Provocation may indeed reduce murder from first to second degree. [Citation.] But an instruction that provocation may be sufficient to raise a reasonable doubt about premeditation or deliberation, such as CALJIC No. 8.73 or CALCRIM No. 522, is a pinpoint instruction to which a defendant is entitled only upon request where evidence supports the theory. [Citation.]" (People v. Rivera (2019) 7 Cal.5th 306, 385.) We conclude, as the trial court did, that the requested instruction was not supported by substantial evidence.
The People argue that defendant failed to clearly request a provocation instruction. We disagree. Although defense counsel may not have asked for CALCRIM No. 522 by name, counsel sufficiently communicated that he was seeking a provocation instruction.
Although there was ample evidence that defendant suffered from hallucinations, there was no evidence that the stabbing was a direct and immediate response to any provocative act, either real or perceived. To the contrary, defendant testified that Cody was sleeping when he entered Tiffany's bedroom, and "seemed like he was dead." Even allowing for the possibility that defendant could have been subjectively provoked by a hallucination involving a person he accurately perceived as sleeping and inert, there is nothing to suggest that happened here.
Defendant testified that he anticipated the possibility of "spiritual possessions" from the moment he entered Tiffany's bedroom. According to defendant's version of events, he then spoke with Tiffany and observed that Cody's spirit had entered her body. Rather than impulsively react to this hallucinated observation, defendant waited until Tiffany had gone to the bathroom, and then closed and locked her bedroom door. He then opened the knife, straddled Cody, and stabbed him in the throat, as he had threatened to do hours before. No evidence suggests that the stabbing was a direct and immediate response to defendant's hallucination, such that defendant could be said to have acted without premeditation or deliberation. (See People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1705.) Neither defendant nor any other witness so testified, and we decline to speculate that defendant's hallucination necessarily provoked a heat of passion precluding the formation of malice. On this record, we conclude, as the trial court did, that the requested instruction was not warranted by the evidence.
Even assuming the trial court erred, the error was harmless. In evaluating the impact of the trial court's refusal to give a pinpoint instruction, we consider " 'the entire cause, including the evidence,' " defense counsel's focus including argument on the evidence supporting the defense theory, and whether any given instructions would have precluded the jury "from giving that evidence its due weight." (People v. Wharton (1991) 53 Cal.3d 522, 571, 572.) We review the erroneous failure to give a pinpoint instruction for prejudice under the Watson harmless error standard. (Id. at p. 571; People v. Watson (1956) 46 Cal.2d 818, 836.)
As noted, the jury found true the lying-in-wait special circumstance allegation. (§ 190.2, subd. (a)(15).) " 'The lying-in-wait special circumstance requires "an intentional murder, committed under circumstances which include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage." ' " (People v. Moon (2005) 37 Cal.4th 1, 22.) " '[L]ying in wait "[is] the functional equivalent of proof of premeditation, deliberation, and intent to kill." ' " (People v. Wright (2015) 242 Cal.App.4th 1461, 1496 (Wright).)
Provocation is irrelevant to first degree murder by means of lying in wait. (People v. Battle (2011) 198 Cal.App.4th 50, 75. ["if the jury found murder by lying in wait, provocation was irrelevant because the murder could not be reduced to second degree murder"].) Accordingly, the failure to instruct the jury on subjective provocation pursuant to CALCRIM No. 522 is generally harmless where, as here, the jury found true a lying in wait special circumstance. (See Wright, supra, 242 Cal.App.4th at pp. 1496-1497 [error in failing to give provocation instruction, as basis for reduction of murder from first to second degree, was harmless based on true finding as to lying in wait special circumstance]; see also People v. Cruz (2008) 44 Cal.4th 636, 665 [a lying in wait special circumstance finding renders the failure to instruct on provocation/heat of passion manslaughter harmless error].) We see no reason to depart from the general rule here.
Defendant resists this conclusion, arguing that a jury instructed on provocation might have found that he lacked the mental state required for lying in wait. We perceive no reasonable probability the jury would have reached such a result had a provocation instruction been given. As we have discussed, there was no objective evidence that Cody provoked defendant, and no evidence that defendant had an emotional reaction to Cody, or anything else, that caused him to react rashly or impulsively. Under the circumstances, we think it highly unlikely that jurors would have found that Cody somehow provoked the stabbing. We note that jurors instructed with CALCRIM No. 522 would have relied on the ordinary meanings of the terms "provoke," and "provocation," which do not, in the usual course, apply to sleeping persons. Absent some additional instruction on the effects of hallucination on premeditation and deliberation (e.g., CALCRIM No. 627), which defendant does not appear to have requested, we see no reasonable probability that the outcome of the trial would have been different had CALCRIM No. 522 been given. Any error arising from the omission of CALCRIM No. 522 was therefore harmless.
2. Voluntary Intoxication Instruction
Defendant contends the trial court erred in refusing to instruct the jury with CALCRIM No. 625 on voluntary intoxication. Although there was substantial evidence that defendant used drugs in the period preceding the stabbing, there was no evidence that defendant's drug use affected his ability to form the intent to commit a lying-in-wait murder.
a. Additional Background
During the trial, defendant described himself as a "functioning drug addict," who used heroin, marijuana, and methamphetamine on a daily basis. When asked how methamphetamine affects him, defendant responded, "It is a normal feeling. I mean, it's a stimulant that gives you the energy to carry out your day."
Defendant recalled that he remained sober in custody, but resumed his drug use upon being released. From the time of his release until the time of the stabbing, defendant estimated that he consumed less than one half of a gram of methamphetamine. Neither defendant nor any other witness offered any opinion as to whether this would be considered an unusual or excessive amount of methamphetamine for a longtime user.
Defendant recalled that he smoked, snorted, and injected methamphetamine in the period leading to the stabbing, and was under the influence at the time he entered Tiffany's bedroom. When asked to describe the effects of the drugs, defendant responded, "I would say the effects were on the same level as everybody else in the house." When pressed, defendant characterized the effects as "[i]ntense."
After the close of evidence, defense counsel requested an instruction with CALCRIM No. 625 on voluntary intoxication. The trial court refused the request, stating: "My recollection of [defendant's] testimony specifically as to methamphetamine's effect on him was that . . . that it gave him focus and energy and helped him do his daily tasks. [¶] None of those described symptoms [of] methamphetamine use would seem to rise to a level of intoxication that would relate to any of the specific intent or mental states in this case."
CALCRIM No. 625 provides: "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]. . . . [¶] 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." --------
b. Analysis
Evidence of voluntary intoxication is " 'admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought.' " (People v. Roldan (2005) 35 Cal.4th 646, 715, disapproved on another ground in People v. Doolin (2009) 4 Cal.4th 390, 421, fn. 22; see also § 29.4, subd. (b).) "Accordingly, a defendant is entitled to an instruction on voluntary intoxication 'only when there is substantial evidence of the defendant's voluntary intoxication and the intoxication affected the defendant's "actual formation of specific intent." ' [Citation.]" (People v. Roldan, supra, at p. 715; see also People v. Williams (1997) 16 Cal.4th 635, 677.) Evidence of "some impairment" unaccompanied by evidence of the effect of the defendant's alcohol or drug use on his state of mind will not constitute substantial evidence warranting giving an intoxication instruction. (People v. Marshall (1996) 13 Cal.4th 799, 848.)
Here, there was evidence that defendant was a longtime drug user, who consumed less than half a gram of methamphetamine in the nearly two-day period preceding the stabbing. At most, the evidence showed that defendant was under the influence of an "[i]ntense" methamphetamine high when he entered Tiffany's bedroom. But there was no evidence as to the effects of any such intoxication on defendant's mental state at the time of the stabbing. No witness testified that defendant's methamphetamine use had any impact on his mental state or actions. There was no expert testimony as to the quantity of drugs defendant consumed, or the likely effect of defendant's drug use on his ability to premeditate or deliberate. In fact, there was no evidence that defendant's methamphetamine use had any substantial effect on him at all. To the contrary, Tiffany and Christy described defendant's behavior as "normal for him" and "normal for somebody that that had been locked up for a few months." Even defendant opined that he was no more intoxicated than anyone else in the trailer. On this record, we conclude there was insufficient evidence to require an instruction on voluntary intoxication.
Defendant argues there was circumstantial evidence from which the jury could have inferred that methamphetamine use caused him to hallucinate that Cody was a demon who had taken possession of Tiffany's body. On the record before us, any such inference would have been entirely speculative. As defendant elsewhere concedes, there was no evidence establishing a connection between methamphetamine use and diminished actuality. We therefore reject the claim of instructional error.
2. Ineffective Assistance of Counsel
Defendant next argues that his trial counsel rendered ineffective assistance by failing to present expert testimony that he was suffering methamphetamine-induced psychosis. We are not persuaded.
A criminal defendant has a constitutional right to effective assistance of counsel. (U.S. Const., 6th Amend; Strickland v. Washington (1984) 466 U.S. 668, 684-685 (Strickland).) To establish a violation of this right, a defendant must show: (1) counsel's performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) this resulted in prejudice to the defendant. (Id. at pp. 687-688, 691-692.) There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." (Id. at p. 689.) " 'The burden of sustaining a charge of inadequate or ineffective representation is upon the defendant. The proof . . . must be demonstrable reality and not a speculative matter.' " (People v. Karis (1988) 46 Cal.3d 612, 656.)
If the record does not explain why counsel acted, or failed to act, in the manner challenged, a reviewing court must reject the ineffective assistance claim on appeal, unless counsel was asked for and did not provide an explanation, or unless there simply could be no satisfactory explanation. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) In such cases, a defendant can typically raise a claim of ineffective assistance in a habeas corpus proceeding where he can litigate matters outside of the appellate record. (Id. at p. 267 ["claims of ineffective assistance are often more appropriately litigated in a habeas corpus proceeding"].)
Here, the record does not reveal why defense counsel failed to call an expert on methamphetamine-induced psychosis. But we need not look far for a reasonable explanation. Counsel could reasonably conclude that a defense theory emphasizing drug use would be unlikely to succeed and could well be prejudicial. Jurors could be alienated by evidence that defendant is a habitual drug user, and could be reasonably expected to be more favorably disposed to a defendant who suffers from unexplained hallucinations than one who suffers from hallucinations as a result of chronic methamphetamine use. Counsel could also reasonably anticipate that expert testimony on methamphetamine-induced psychosis could open the door to impeachment with evidence that defendant was malingering, an opinion held by one of the court-appointed psychologists who evaluated defendant for competency prior to trial.
Defendant directs our attention to People v. Frierson (1979) 25 Cal.3d 142 (Frierson), a capital case in which trial counsel was ineffective in failing to consult an expert about whether the defendant's use of PCP and Quaaludes would support a defense of diminished capacity. (Id. at pp. 159-164.) Unlike Frierson, this was not a case in which the failure to present expert testimony on diminished capacity due to drug use was effectively a failure to present any defense at all. (Id. at p. 163.) Although diminished capacity may have been defendant's only defense, methamphetamine-induced psychosis was not, and defense counsel could have reasonably concluded that jurors would be more likely to accept defendant's explanation that he stabbed Cody as a result of a hallucination if he was not seen as having created the conditions that led to the hallucination in the first place. We decline to second guess defense counsel's tactical judgment. (People v. Lucero (2000) 23 Cal.4th 692, 728-279 [" 'When . . . the record sheds no light on why counsel acted or failed to act in the manner challenged, the reviewing court should not speculate as to counsel's reasons' "].) Accordingly, defendant's claim of ineffective assistance based on counsel's failure to present expert testimony fails.
3. Cumulative Error
Finally, defendant argues that cumulative error requires reversal. "Under the 'cumulative error' doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial. (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) Having rejected all of defendant's claims of error, "we discern no prejudice—singly or cumulatively—that warrants reversal." (People v. Tuggles (2009) 179 Cal.App.4th 339, 388.)
III. DISPOSITION
The judgment is affirmed.
/S/_________
RENNER, J. We concur: /S/_________
BLEASE, Acting P. J. /S/_________
MAURO, J.