Opinion
D076145
06-16-2020
In re STEPHANIE GONZALEZ on Habeas Corpus.
Susan L. Ferguson, under appointment by the Court of Appeal, for Petitioner. Xavier Becerra, Attorney General, Lance Winters and Julie Garland, Assistant Attorneys General, Daniel Rogers, Lise Jacobson and Kristen Kinnaird Chenelia, Deputy Attorneys General for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Diego County Super. Ct. No. SCN368968) ORIGINAL PROCEEDING in habeas corpus. Relief denied. Susan L. Ferguson, under appointment by the Court of Appeal, for Petitioner. Xavier Becerra, Attorney General, Lance Winters and Julie Garland, Assistant Attorneys General, Daniel Rogers, Lise Jacobson and Kristen Kinnaird Chenelia, Deputy Attorneys General for Respondent.
After a jury convicted petitioner Stephanie Gonzalez of three counts of attempted robbery (counts 1-3; Pen. Code, §§ 211/664), the trial court suspended execution of sentence and granted Gonzalez three years of formal probation. On appeal, Gonzalez contended her trial counsel rendered ineffective assistance by not requesting an instruction on voluntary intoxication. This court affirmed the judgment, concluding trial counsel had tactical reasons not to request the instruction and instead pursue a mental health defense; moreover, Gonzalez had failed to show resulting prejudice. (People v. Gonzalez (July 3, 2018, D072297) [nonpub. opn.].)
Under Evidence Code section 452, subdivision (d)(1), we grant the parties' requests that we judicially notice the record in the underlying case.
In rejecting Gonzalez's contentions, this court concluded:
"[B]ased on defense counsel's arguments in the motion in limine[,] she had tactical reasons for not requesting instruction on voluntary intoxication but instead focusing on mental illness. Further, defense counsel argued to the jury regarding Gonzalez's mental condition, pointing out that Gonzalez had been on a Welfare and Institutions section 5150 hold shortly before the attempted robbery incidents. Moreover, the witnesses' testimony supported this defense, as they described Gonzalez's affect as flat, and said she appeared confused or dazed during the different incidents. Defense counsel could also reasonably conclude the jurors would be more sympathetic to Gonzalez if they thought she suffered from a mental illness than if they believed she was voluntarily intoxicated. Nor can we conclude Gonzalez has shown counsel's representation resulted in any prejudice to her. The evidence regarding the intoxication defense was limited to the witnesses' impressions. It was not as substantial as that regarding mental health. The police officers did not administer sobriety or blood-alcohol tests because they did not detect that Gonzalez was intoxicated. [¶] The court instructed the jury with CALCRIM No. 3428 on mental illness affecting Gonzalez's ability to act with an intent to commit the charged crimes, but that did not change the jury's verdict. Therefore, no different result is reasonably likely if the court had instructed the jury regarding voluntary intoxication. The jury reasonably concluded Gonzalez seemingly was not intoxicated or otherwise mentally impaired, as she was able to carry out the attempted robberies by selecting three separate women victims to approach, pretending to have a weapon concealed in a bag, and demanding their purses. In light of the above, Gonzalez has not shown her trial attorney provided ineffective assistance in violation of her constitutional rights."
(People v. Gonzalez, supra, D072297 [2018 WL 3235852 at *3].)
Gonzalez petitioned for a writ of habeas corpus in this court, contending the prosecution violated her constitutional rights by failing to disclose material and exculpatory evidence—specifically a January 25, 2017 police incident report ("the incident report")—as required under Brady v. Maryland (1963) 373 U.S. 83 (Brady), and her trial counsel provided constitutionally ineffective assistance for failing to investigate and present a voluntary intoxication defense. The incident report states without elaboration that Gonzalez was placed on a Welfare and Institutions Code section 5150 hold that night. At trial, the jury had learned Gonzalez was placed on a separate hold under that statute on January 22, 2017.
This court issued an order requesting an informal response from the Attorney General. We issued an order to show cause. We deny the requested relief because Gonzalez has not shown a prima facie case of Brady error or ineffective assistance of counsel.
FACTUAL AND PROCEDURAL HISTORY
On January 26, 2017, Gonzalez stopped three women in separate incidents in a hospital parking lot in Oceanside, California, threatened them with what appeared to be a gun, and demanded their money. The victims testified Gonzalez seemed to be either under the influence of drugs or alcohol or mentally ill.
We quote from our prior opinion regarding the circumstances of Gonzalez's arrest:
"An Oceanside police officer responded to the scene and placed Gonzalez in handcuffs. Gonzalez was docile and quiet and seemed to understand what was going on. The police officer did not think she was drunk,
as he did not smell alcohol on her breath, and she was not falling down or staggering; therefore, he did not test her for intoxication. He recognized Gonzalez from four days earlier when he had responded to a report that she and three other persons were 'smoking out of a glass pipe.' That day, the police placed Gonzalez on a psychiatric hold under Welfare and Institutions Code section 5150 because she had expressed suicidal thoughts."(People v. Gonzalez, supra, D072297 [2018 WL 3235852 at *1].)
The officer testified at trial that Gonzalez committed the crimes in the parking lot of the same hospital where she had been admitted four days earlier.
Another Oceanside police officer who responded to the hospital parking lot testified that Gonzalez possibly was under the influence of alcohol and drugs because she seemed talkative, erratic, and shaky. But that officer did not include that impression in her arrest report. Further, she did not evaluate Gonzalez for intoxication. However, the officer wrote in her report that Gonzalez was recently placed on a Welfare and Institutions Code section 5150 hold. (People v. Gonzalez, supra, D072297 [2018 WL 3235852 at *1].)
As stated in our prior opinion:
"Defense counsel argued to the jury in closing that Gonzales needed money on the day of the incident, having just been released from the hospital due to her mental problems: 'I know she had no money on her. I think someone testified that she had a dollar. We don't have any information that she had any transportation, and all we know is she had a bag of personal property. We don't know what was in that [bag], because neither of the police officers bothered to look in there or catalog anything in there. I don't know if there was any discharge paperwork or information that could have been possibly relevant in this case. [¶] What is a [Welfare and Institutions Code section] 5150 hold? This is something that gives the government the right to take away your freedom. A peace officer can take away your freedom involuntarily if they [sic] find you're not in a proper state of mind. You have suicidal thoughts. You're unable to care for yourself. They can hold you in the hospital involuntarily for up to 72 hours.' " (People v. Gonzalez, supra, D072297 [WL 3235852 at *2].
[¶] Defense counsel added: "Now, mental impairment, you have heard evidence that [Gonzalez] may have suffered from a mental defect. When I say evidence, I mean the testimony of pretty much—actually, every witness, except something was wrong with [Gonzalez]. Something was wrong with her. [¶] [Victim M.J.] was just puzzled by the whole thing. [Victim C.F.] thought [Gonzalez] was mentally ill. [Victim V.C.] thought [Gonzalez] might have been a mental patient from the hospital. We know that she was booked on a [Welfare and Institutions Code section] 5150 hold a few days before where an officer thought she was such a danger to herself and mentally unfit that he, in fact, involuntarily committed her to the hospital. And we know this is right around the time when that commitment would have been statutorily up."(People v. Gonzalez, supra, D072297 [WL 3235852 at *2].)
In July 2018, after we decided the appeal, Gonzalez filed a petition for writ of habeas corpus in this court, contending Brady error, ineffective assistance of trial counsel, and cumulative error. This court denied the petition without prejudice to Gonzalez first seeking relief in the superior court. (In re Stephanie Gonzalez (July 16, 2018, D074289).)
Superior Court Writ Proceedings
Gonzalez filed a petition for writ of habeas corpus in the superior court on the same grounds as before, arguing the prosecution failed to disclose the incident report, in which the police officer stated Gonzalez "appeared upset and was crying. She also had the odor of an alcoholic beverage emitting from her breath and person. She had an unsteady gait, slurred speech, and watery/bloodshot eyes. I detained [Gonzalez] at this time and placed her in handcuffs for her safety. During my initial contact with [Gonzalez], she made spontaneous statements about wanting to die. She also stated, "Leave me alone, I'm going to go pimp myself out."
Gonzalez also contended her trial counsel was ineffective for not asserting a voluntary intoxication defense, and not obtaining and providing her medical records, including psychiatric reports, to a defense expert, who could have asserted a mental impairment defense separate from a voluntary intoxication defense.
The superior court denied the petition in a comprehensive order, finding no Brady violation because the incident report was not favorable to Gonzalez on the issue of her ability to form the specific intent for the attempted robberies, and the information in the report was not material. The court pointed out that even without the police report, Gonzalez's trial counsel knew about Gonzalez's substance abuse from Gonzalez's self-reporting to the defense's expert in the trial court, Dr. Rivers: "Defense counsel chose not to have [Dr. Rivers] testify, and her cross-examination of witnesses and argument was clearly directed at emphasizing the mental defect evidence of [Gonzalez's] observed affect at the time of the subject incident and the interplay of the [Welfare and Institutions Code section 5150] hold, and just being released from that hold, and negating being under the influence as the cause of [Gonzalez's] observed affect."
The superior court added, "Defense counsel would also be aware of [Gonzalez's] statement at the time of arrest from the arrest report and could assume that if she offered a voluntary intoxication defense this would be viewed by a jury as disingenuous as simply an extension of how [Gonzalez] tried to excuse her conduct to [the arresting officer:] 'I was just panhandling. I didn't try to rob anyone. I'm just sick, the drugs made me do it.' . . . [S]uch a statement would have been offered if a voluntary intoxication defense had been asserted as the statement clearly showed [Gonzalez] was trying to rationalize and excuse her conduct because of drugs immediately following that conduct, the opposite of someone who has lost contact with reality and doesn't understand what they are doing." (Italics omitted.)
The superior court concluded that even if trial counsel was "incompetent in her defense" of Gonzalez, no reasonable probability existed that absent that conduct Gonzalez would have received a different result: "Defense counsel fully developed the picture of [Gonzalez's] strange affect at the time of the subject crimes through the trial witnesses, related that to the [Welfare and Institutions Code section 5150 hold], and the release from that hold just before the subject crimes, argued it showed a mental defect (but unspecified) that negated the specific intent necessary[,] and cited to and argued CALCRIM [No.] 3428 on mental defect affecting one's ability to form specific intent. [¶] . . . [¶] . . . Despite her mental defect, whether caused by an unspecified mental disease, or drugs, [Gonzalez] mentally formulated a plan to assault lone females who were significantly younger or older than she, simulate a gun in a bag, to demand the victim's purses, to understand when the victims were balking at turning over their purses and in response, escalate the threat to a verbal threat to 'kill' or 'shoot' a victim if they didn't comply with her demand, to understand she was making a threat of violence . . . to understand a threat of violence when it was directed at her by one victim and abort her attempted robbery, and to understand that the other two victims had nothing of value in their purses after they showed [Gonzalez] their purses contained 'baby items' or lunch', causing [Gonzalez] to abort those attempted robberies."
Having resolved those issues dispositive of the Brady claim, the superior court declined to hold an evidentiary hearing on whether the police incident report had been in the prosecution's possession.
The Current Writ Petition
Gonzalez again contends the prosecutor committed Brady error, she received ineffective assistance of counsel, and there was cumulative error. She lists the following matters not presented at trial "because of the prosecution's failure to disclose material evidence and/or defense counsel's failure to investigate and pursue a voluntary intoxication defense:" (1) the fact she was hospitalized on January 22, 2017, administered antipsychotic medication, and released the next day; (2) the fact she was put on an involuntary hold and hospitalized for exhibiting bizarre behavior on the night before the attempted robberies; (3) her medical records showing her positive tests for cannabis, amphetamines, opiates, and benzodiazepines, and the fact she had a sustained history of severe substance abuse; (4) statements from her husband, who she called immediately before the attempted robberies and who described her unusual behavior; (5) Dr. Rivers's evaluation that concluded Gonzalez's psychiatric deterioration was drug induced; and (6) expert testimony concerning the pharmacological effects of the various legal and illegal drugs found in Gonzalez's system during the two involuntary holds.
Gonzalez has attached to her writ petition the incident report. She also attached medical records from her Welfare and Institutions Code section 5150 holds and overnight hospitalizations on January 25, 2017, and January 22, 2017, which show she tested positive for illegal drug use; suffered from polysubstance abuse; had psychiatric problems including suicidal ideations, self-harm and depression; and was administered antipsychotic medication and a sedative. A lawyer trained in pharmacology and forensic toxicology stated in an attached declaration that the drugs detected in Gonzalez's system during her two hospitalizations could induce psychosis; moreover, "she was place [sic] on two involuntary psychiatric holds, and she had a long history of substance abuse using illicit and prescription medications. All of these factors support a defense that [Gonzalez] was mentally incapacitated at minimum and possibly suffering from a drug induced psychosis which can last days months or even years." The expert also opined: "no reasonable defense could have been presented without expert opinion as to the effects of the substance abuse on Gonzalez's mental state and how it could negate specific intent." Gonzalez's appellate counsel submitted a declaration stating that Gonzalez's trial counsel had declined to make a statement explaining why she did not present an involuntary intoxication defense. Trial counsel said she never received the incident report.
Gonzalez argues her trial counsel provided ineffective assistance: "The defense of mental impairment, particularly where, as here, the defendant has twice been placed on a psychiatric hold immediately before the incident requires expert analysis and opinion. Without any information concerning the hospitalization and no expert testimony regarding [her] mental state, the jury was left with an unnecessary gap in evidence as to [her] mens rea."
The People argue in their informal response that the writ petition fails to state a prima facie case for relief because the incident report "contains no favorable information, contains no material information, was not in the possession of the prosecution team, and was not suppressed within the meaning of Brady." They point out Gonzalez was aware of the second hospitalization and therefore the defense could have obtained the incident report. The People assert Gonzalez's trial counsel "investigated and made a tactical decision to pursue a mental impairment defense without reference to voluntary intoxication." The People also assert that even if trial counsel's performance was deficient, there was no prejudice because Gonzalez discussed her drug use with Dr. Rivers, who like the defense's current expert, stated Gonzalez's mental impairment was caused by her drug abuse. The People further argue "there was no evidence that Gonzalez was under the influence of a controlled substance at the time she committed her crimes to support a voluntary intoxication defense."
After this court issued the order to show cause, the People filed a return to the order to show cause and Gonzalez filed a traverse.
DISCUSSION
I. Brady Error
Under Brady, supra, 373 U.S. 83, the prosecution violates due process when it withholds material evidence that is favorable to the accused. (People v. Mena (2012) 54 Cal.4th 146, 160.) The prosecution must disclose such evidence, even if the defendant does not request it. (In re Brown (1998) 17 Cal.4th 873, 879.) " 'There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.' " (People v. Salazar (2005) 35 Cal.4th 1031, 1042-1043.)
Prejudice, for purposes of a Brady violation, "focuses on 'the materiality of the evidence to the issue of guilt or innocence.' [Citations.] Materiality, in turn, requires more than a showing that the suppressed evidence would have been admissible [citation], that the absence of the suppressed evidence made conviction 'more likely' [citation], or that using the suppressed evidence to discredit a witness's testimony 'might have changed the outcome of the trial' [citation]. A defendant instead 'must show a "reasonable probability of a different result." ' " (People v. Salazar, supra, 35 Cal.4th at pp. 1042-1043.) A "reasonable probability" means a probability sufficient to " 'undermine[ ] confidence in the outcome' on the part of the reviewing court." (In re Sassounian (1995) 9 Cal.4th 535, 544.)
Gonzalez has not shown a reasonable probability of a different outcome if the prosecution had timely disclosed the incident report to the defense. The incident report was not material or favorable to support Gonzalez's mental impairment defense. The record at trial shows that Gonzalez informed Dr. Rivers about the Welfare and Institutions Code section 5150 hold on January 22, 2017. Dr. Rivers wrote in her report: "These charges result from events occurring on January 26, 2017 . . . Gonzalez had just been released from [the hospital], where she was evaluated for a psychiatric hold pursuant to [Welfare and Institutions Code section] 5150. A responding officer recognized [her] from a call on January 22, 2017[,] that resulted in a psychiatric hold." The arresting officer testified about recognizing Gonzalez. We therefore conclude it is not reasonably probable that information regarding Gonzalez's second hold would have altered the outcome of the trial because the defense presented the evidence to the jury indicating the hold was 72 hours and lasted until shortly before Gonzalez committed the crimes. Further, the incident report relates to matters occurring on the day before the crimes and therefore it does little to explain Gonzalez's mental state while she was committing the attempted robberies. In sum, the report does not negate that Gonzalez formed the specific intent to commit the crimes.
II. Ineffective Assistance of Counsel and Cumulative Error Claims
To prevail on an ineffective assistance claim, a defendant must demonstrate that counsel's performance was deficient such that it "fell below an objective standard of reasonableness" and that the deficient performance resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 (Strickland).) To show prejudice, a defendant must establish that if counsel's performance was not deficient, it is reasonably probable she would have received a more favorable result. (Id. at p. 694.) In considering a claim of ineffective assistance of counsel, it is not necessary to determine " 'whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . . 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.' " (In re Fields (1990) 51 Cal.3d 1063, 1079, quoting Strickland, at p. 697.)
In Strickland, the United States Supreme Court explained that "[j]udicial scrutiny of counsel's performance must be highly deferential [because] [i]t is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." (Strickland, supra, 466 U.S. at p. 689.) Thus, the court explained, reviewing courts "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' " (Ibid.; see People v. Lucas (1995) 12 Cal.4th 415, 437, quoting Strickland, supra, 466 U.S. at p. 689.) We reverse on the ground of inadequate assistance only if the record affirmatively discloses no rational tactical purpose for counsel's act or omission. (Lucas, supra, at pp. 436-437.)
We have already concluded the prosecutor did not commit Brady error and Gonzalez was not prejudiced by the prosecutor's failure to turn over the incident report. Based in part on our opinion in the previous appeal, we also conclude she cannot establish ineffective assistance of counsel. She cannot show a reasonable probability that but for her counsel's asserted errors, she would have received a more favorable result. (Strickland, supra, 466 U.S. at pp. 693-694.) Counsel's tactical decision to forego an intoxication defense was not unreasonable in light of the paucity of evidence Gonzalez was actually intoxicated, as shown by the fact the arresting officers declined to test her for drug and alcohol use. Therefore, to the extent Gonzalez claims defense counsel was ineffective by failing to obtain her medical records or testimony of individuals regarding her intoxication, the absence of that evidence did not prejudice Gonzalez, as trial counsel reasonably could have decided to present a mental impairment defense instead. Having found no Brady error and no ineffective assistance of counsel, there are no errors to cumulate. (See People v. Anderson (2001) 25 Cal.4th 543, 606.)
DISPOSITION
The petition for writ of habeas corpus is denied.
O'ROURKE, J. WE CONCUR: McCONNELL, P. J. AARON, J.