Opinion
H050201
03-28-2024
In re JESSE DELVIN QUIMING on Habeas Corpus.
NOT TO BE PUBLISHED
Order Filed On Date 4/23/24
(Monterey County Super. Ct. Nos. SS151045A, 19HC000110)
ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT]
THE COURT:
The court orders that the opinion filed March 28, 2024, be modified as follows:
On page 6, the first full paragraph under section II,C., delete the following text from the second sentence: "(the same judge who presided over petitioner's trial)."
On page 20, the second-to-last full paragraph, delete the first sentence that reads: "Trial counsel attached two undated handwritten notes to his second declaration." Replace the deleted sentence with the following:
The evidentiary hearing record also includes two undated handwritten notes from trial counsel. The petition for rehearing filed on behalf of petitioner Jesse Delvin Quiming is denied. There is no change in the judgment.
BAMATTRE-MANOUKIAN, ACTING P. J. GROVER, J. WILSON, J.
BAMATTRE-MANOUKIAN, ACTING P. J.
I. INTRODUCTION
Petitioner Jesse Delvin Quiming, an inmate of the Department of Corrections and Rehabilitation, filed a petition for a writ of habeas corpus alleging that he received ineffective assistance of counsel at his trial. In November 2015, a jury convicted petitioner of first degree murder (Pen. Code, § 187, subd. (a); count 1) and attempted voluntary manslaughter (§§ 664, 192, subd. (a); count 2). The jury found true allegations that petitioner personally used a deadly weapon (§ 12022, subd. (b)(1)) as to both counts and personally inflicted great bodily injury in the commission of the attempted voluntary manslaughter (§ 12022.7, subd. (a)). The trial court sentenced petitioner to a total prison term of 56 years to life.
All further statutory references are to the Penal Code unless otherwise indicated.
Petitioner raises three issues: (1) he received ineffective assistance of counsel because his trial counsel failed to investigate and raise mental health defenses at trial; (2) he was mentally incompetent to stand trial; and (3) he received ineffective assistance of counsel because his trial counsel failed to investigate his mental competence and failed to request a competency hearing. We follow the guidance from our Supreme Court in In re Saunders (1970) 2 Cal.3d 1033 (Saunders), People v. Mozingo (1983) 34 Cal.3d 926 (Mozingo), and People v. Ledesma (1987) 43 Cal.3d 171 (Ledesma) and conclude under the facts of this case that petitioner received ineffective assistance of counsel due to his trial counsel's failure to more fully investigate potential defenses raised by petitioner's mental health issues. For reasons we will explain below, we will vacate the judgment of conviction, and if the People do not elect to bring petitioner to trial within 60 days after service of a certified copy of this opinion pursuant to section 1382, subdivision (a)(2), we will order the trial court to enter a judgment reflecting a conviction for second degree murder on count 1 and attempted voluntary manslaughter on count 2 and to resentence petitioner accordingly under current law. We conclude petitioner has not demonstrated he was incompetent to stand trial or that his trial counsel was ineffective for failing to declare a doubt as to petitioner's competency.
II. BACKGROUND
This summary of the facts that led to petitioner's convictions is taken from this court's opinion in petitioner's direct appeal in People v. Quiming (Jan. 31, 2019, H043494) [nonpub. opn.]. We grant petitioner's request to take judicial notice of the transcripts, briefs, and relevant exhibits in People v. Quiming, supra, H043494, and in People v. Quiming (Jul. 26, 2021, H047387) [nonpub.opn.]. In addition, on our own motion, we take judicial notice of this court's prior opinions in these cases.
Just after midnight on June 19, 2015, petitioner stabbed Scott Long and Tyler Misamore. The stabbings took place behind the Monterey public library, in an area where the homeless community tended to "hang out." Long was killed, but Misamore survived. At trial, three eyewitnesses to the incident testified: Misamore, his girlfriend Jasmine Abercrombie, and Joseph Becerra.
Becerra was lying down near petitioner while Misamore, Long, and Abercrombie were drinking vodka. Petitioner got up and asked if he could "hit that," meaning drink some of the vodka. Long told petitioner, "No," and criticized petitioner for failing to introduce himself. Petitioner sat down and appeared to "brood[] on" what had just happened.
About 10 minutes later, petitioner asked Abercrombie if he could use her lighter. According to Misamore, petitioner lit a cigarette and then started stabbing Long. According to Abercrombie, petitioner lit a cigarette and then lay down for about 10 minutes before getting back up and stabbing Long.
As petitioner was stabbing Long, Misamore tried to intervene: he approached petitioner from behind and put his arm around petitioner's neck. Petitioner stabbed Misamore in the side, causing them both to fall down. Misamore tried to grab the knife, but petitioner "pulled back," cutting Misamore's fingers. Misamore yelled to Abercrombie, telling her that "the guy had a knife." Petitioner then got up and ran away, leaving his sleeping bag and a backpack behind.
Becerra heard petitioner get up, go ask for a lighter, and return to his sleeping bag. Becerra then heard "some scuffling." Becerra heard Abercrombie scream, "He's got a knife." Becerra heard "more scuffling," then saw petitioner run towards the front of the library. Becerra did not see Long, Misamore, or Abercrombie with any weapons.
Abercrombie went to the police station, which was across the street from the library. She reported the stabbing and described the perpetrator as a male who was about 5 feet 6 inches tall and was wearing a blue sweatshirt and denim pants or jeans.
An officer responded to the library, where he discovered Long, who was in a seated position, holding an iPhone and an iPad. Long had no pulse, so the officer began administering CPR.
Misamore told police that he had been stabbed and "chased around" by petitioner. Misamore said that petitioner had asked to drink with Misamore's group and was rebuffed. After lying down for about 10 minutes, petitioner had "jumped up" and started stabbing Long. Misamore had then jumped up to help Long. Misamore put petitioner in a headlock, and petitioner stabbed him a few times before running off. Misamore asserted that the stabbing was "not provoked" and that petitioner was "psychotic."Misamore took petitioner's belongings-including a backpack-after petitioner left.
The specific statements by Misamore, not quoted in full in this court's prior opinion, were that petitioner was "fucken psychotic" and acted "like a motherfucking sociopath."
Becerra told the police that petitioner had made "an aggressive motion towards Long" and that petitioner had then either punched or pushed Long, causing Long to fall backwards and hit his head on a retaining wall. At that point, Misamore jumped on petitioner's back and pulled him away from Long.
Long had a stab wound in his chest and three stab wounds in his armpit area. The stab wound to his chest had gone in a "downward" direction and had penetrated his heart. Two of the armpit area stab wounds had gone in at upward angles. Long also had some abrasions and contusions, which were consistent with defensive wounds. Long had two "multi tools" in his pocket, but both were in a closed position. Long had a blood alcohol level of 0.31 at the time of his death.
An officer found an empty black knife sheath next to petitioner's bedding. The sheath looked the same as a knife sheath found in petitioner's possession on May 25, 2015 (about one month before the stabbings), when City of Monterey Police Officer Brian Nino contacted petitioner.
Inside petitioner's backpack was a knife in a tan sheath, which was similar to a second knife found in petitioner's possession on May 25, 2015. There was no blood on the sheathed knife.
A few days after the stabbing, a woman brought a knife to the police department. She had found the knife in a yard where she was doing some gardening work. The knife had the same grip as the black sheathed knife that petitioner possessed on May 25, 2015.
On the night of June 19, 2015, Marla Tillery was driving home from a restaurant with some friends. Petitioner approached her car and asked "if he could go home" with her. Petitioner said "that he had killed two people the day before and that they deserved to die." Petitioner "went into details" but Tillery could not hear him as she thought about how to leave safely. She told petitioner she could not give him a ride. Petitioner "politely said 'Thank you, ma'am,' and walked away."
On the night of June 20, 2015, Monterey County Deputy Sheriff Daniel Lopez saw petitioner run across Highway 1 near Carmel High School, then hide in some trees and bushes. Deputy Lopez contacted petitioner and took him into custody.
When petitioner was booked, he had no injuries. He made a statement while being booked: "So how's prison these days?"
At trial, the defense presented no evidence. A jury convicted petitioner of first degree murder for Long's death. (§ 187, subd. (a).) The jury found petitioner not guilty of the attempted willful, deliberate, and premeditated murder of Misamore, instead finding petitioner guilty of attempted voluntary manslaughter. (§§ 664, 192, subd. (a).) The jury found true allegations that petitioner personally used a deadly weapon (§ 12022, subd. (b)(1)) as to both counts and that petitioner personally inflicted great bodily injury in the commission of the attempted voluntary manslaughter (§ 12022.7, subd. (a)). The trial court also found that petitioner was previously convicted of a serious felony (§ 667, subd. (a)(1)), and that petitioner suffered a prior serious or violent felony conviction (§ 1170.12, subd. (c)(1)). The trial court sentenced petitioner to a total prison term of 56 years to life.
B. Post-Trial Proceedings
Following petitioner's convictions, but prior to sentencing, petitioner's family members wrote letters to his trial counsel and to the trial court, informing them of petitioner's history of mental illness. After petitioner was sentenced, this court reversed the judgment and remanded the matter to the trial court for resentencing based on legislative changes involving sentencing and other matters. (People v. Quiming, supra, H043494.) In the decision, this court rejected a contention by petitioner that the trial court erred by failing to inquire into his mental competence prior to the sentencing hearing due to the information petitioner's family raised to the trial court about petitioner's history of mental health issues. (People v. Quiming, supra, H043494 .)
These changes impacted section 667, subdivision (a), section 1001.36, and section 1385, subdivision (b). (Stats. 2018, ch. 1013, § 1; Stats. 2018, ch. 34, § 24; Stats. 2018, ch. 1005, § 1.)
After the trial court resentenced petitioner, declining to strike petitioner's prior serious felony conviction, this court affirmed the judgment. (People v. Quiming, supra, H047387.) In affirming the judgment, this court held that petitioner did not demonstrate ineffective assistance of counsel based on an asserted conflict of interest, where petitioner was represented in resentencing proceedings by the same counsel who represented him at trial and petitioner had filed a petition for a writ of habeas corpus alleging ineffective assistance by that trial counsel, thus allegedly preventing petitioner from presenting evidence of his mental health issues at resentencing. (People v. Quiming, supra, H047387 .)
C. Habeas Petition and Evidentiary Hearing
Petitioner filed a petition for a writ of habeas corpus in the trial court in June 2019, alleging he was denied effective assistance of counsel and seeking to vacate the judgment of conviction. The trial court (the same judge who presided over petitioner's trial) found "there is a reasonable likelihood that Petitioner may be entitled to relief, which depends on the resolution of issues of fact," and ordered an evidentiary hearing.
The evidentiary hearing took place in January 2022. Petitioner introduced numerous exhibits, including: declarations from petitioner's family members and childhood friends; letters from petitioner's family members to the trial court and to trial counsel; a copy of a journal found in petitioner's backpack left at the scene of the charged offenses; declarations and notes from petitioner's trial counsel; notes from Kelvin Windham, the defense investigator; medical records; and a declaration from Dr. John Greene, a psychiatrist. Petitioner called four witnesses at the hearing: Dr. Greene; Windham; trial counsel; and Michael Ogul, a criminal defense attorney. Petitioner did not testify, and a declaration he had written was not admitted.
1. Declarations from petitioner's family and childhood friends
The declarations from petitioner's family and childhood friends detailed petitioner's long history of mental health issues, starting after petitioner sustained two traumatic head injuries when he was 16 years old and leading to petitioner being diagnosed with paranoid schizophrenia in 2003 or 2004. The declarations contained information about petitioner's worsening mental health over the ensuing years leading up to the charged offenses, including auditory hallucinations, delusions, and homelessness, despite efforts to treat his mental illness. A declaration from petitioner's aunt (a psychiatric social worker) stated that in 2014 and 2015, petitioner experienced a "marked deterioration" in his mental health, as he "was becoming increasingly paranoid, and was struggling with command auditory hallucinations, ideas of reference, thought insertion, grandiosity, delusional and disorganized thoughts, and impulsivity."
A declaration from petitioner's mother stated that petitioner's family sought to have him involuntarily committed in Florida in April 2015, but petitioner left for California. On May 7, 2015, petitioner's mother called the sheriff's office in Florida to report petitioner's absence and that he had not been taking his medication for schizophrenia. Petitioner's sister saw petitioner when he arrived on a bus in Sacramento on June 5, 2015 (two weeks before the charged offenses); her declaration stated that she was "horrified" by petitioner's appearance and that petitioner "was talking about hearing voices and saying that he needed to help people who weren't strong enough to protect themselves."
Petitioner's mother stated in her declaration that she flew to California soon after the charged offenses to meet with petitioner's counsel, and that "during that meeting, the most important thing I wanted to impress upon [petitioner's counsel] was that [petitioner] had had a serious mental breakdown and that he was schizophrenic." She stated that "[d]uring this and subsequent meetings, I mentioned many times to [trial counsel] that [petitioner] was very mentally ill and that he had snapped under the weight of voices and hallucinations." Petitioner's mother and aunt stated that they also met with trial counsel and detailed petitioner's mental health issues; both reported providing trial counsel and the defense investigator with written follow-up information about petitioner's mental health issues, including contact information for mental health providers who were familiar with petitioner's mental health issues. Petitioner's mother and aunt attached emails, a copy of a handwritten letter, and a fax with samples of petitioner's written thoughts to support the assertion that they sent information to petitioner's counsel and the defense investigator. Petitioner's father also reported meeting with petitioner's counsel in late 2015 and informing him of petitioner's mental health issues. Petitioner's aunt also stated that she met with the defense investigator on October 20, 2015 to discuss petitioner's mental health issues in greater depth, and that "I specifically discussed that [petitioner] had been diagnosed with schizophrenia and that he was experiencing auditory hallucinations." Petitioner's family reported that neither trial counsel nor the defense investigator contacted them for any additional information about petitioner's mental health or to serve as witnesses in petitioner's trial, and if they had been contacted, they would have provided additional information.
Petitioner's parents reported that soon after petitioner's trial, petitioner called his father and reported that he did not speak to his lawyer leading up to trial because "[t]he voices told me to be silent." Petitioner's mother, who heard the call, attached to her declaration a handwritten note that she said was made at the time of the call, reflecting the following statement from petitioner:" 'Dad I didn't - I didn't say a word.' 'The voices told me to be silent.' "
The evidence at the habeas hearing included the letters from petitioner's family members to petitioner's counsel and to the trial court, reporting petitioner's mental health issues. One of petitioner's aunt's letters reported that during her visits with petitioner both before trial and after trial, petitioner expressed delusional thoughts and reported hearing voices. Petitioner's aunt's other letter reported the following regarding statements from petitioner to his aunt: "I'm writing you again as I'm profoundly concerned that my nephew . . . was unable to confide in his attorney before his trial and I'm unsure if all the facts in his case were revealed. He has since confided in me that he heard the victim say perverse things and thought that a woman or two women were going to be hurt when he reacted to the situation on the night of the crime. [Petitioner] is especially sensitive to women being abused due to incidents he has been exposed to in his family history. He told me he heard a voice telling him not to ignore what was going on. Obviously, he seriously overreacted and committed an unspeakable act, but since he thought there was someone at risk of being harmed it changed my opinion of what happened that night and is more congruent with how I know my nephew." Another letter from petitioner's sister to the trial court stated that petitioner told her "that he heard a voice told him [sic] he couldn[']t let Mr[.] Long do any more bad things. He was concerned that Mr[.] [L]ong was going to hurt a woman that was near them and said that Mr[.] Long was extremely vulgar and disrespectful toward her. He believed he was acting to defend a woman[']s life."
2. Journal entry
Petitioner submitted excerpts from his handwritten journal, which contained the following entry from June 18, 2015, the day leading up to the charged offenses: "I think the old woman sitting in front of me on the bus was just going to try to 'hit' me. I was coming back from Sand City this afternoon and I got that feeling that I needed to be very still and alert or she just might kill me. I could be wrong, but that[']s how it is and ordered to be, but I thought she might have decided not to. Maybe she got scared. Everyone gets scared sometimes."
3. Medical records
The evidentiary hearing record contains numerous medical records of petitioner. Many of the records are from petitioner's time in confinement after his arrest and then following his sentence. The records documented petitioner's previous diagnosis of schizophrenia and stated that following petitioner's arrest, he was prescribed medication for his mental illness but refused treatment, though one note in late June 2015 characterized petitioner as "stable." A record dated April 28, 2016 (after petitioner's trial) noted that petitioner was "paranoid and delusional" and had "active irritability," and recounted petitioner's mental health history dating back to 2004, including the following: "The patient stated that he hears voices of the government. He has telepathy and psychic ability. He claimed this has been going on for about 10 years." Other records dating back to 2005 stated concerns about petitioner's schizophrenia, with auditory hallucinations and impaired judgment. Records from January 2015 - about five months before the charged offenses - stated that petitioner reported "his imagination runs wild and he believes, at times, that people are watching his family," though petitioner also reported that he was not experiencing hallucinations at that time. A record in February 2015 stated petitioner reported "problems keeping sanity due to the fact agents are always watching us."
The medical records also contained an "Outpatient Discharge Summary" from a treatment facility dated May 11, 2015, about five weeks before the charged offenses. The report stated that petitioner went to the facility to address cannabis dependence, and that he "further presented with significant mental health challenges including paranoia and a delusional thought pattern." The report stated petitioner was administratively discharged from the facility, and it stated: "It is highly recommended that [petitioner] re-engage in treatment and begin a medication regimen to address his paranoid ideation and delusional cognition."
4. Dr. Greene
Before the hearing, the parties agreed that Dr. Greene, a psychiatrist, qualified as an expert witness and that he would testify at the hearing to the facts and opinions stated in the declaration he provided. Dr. Greene reviewed several documents including mental health records, summaries of the facts of the charged offenses, letters and declarations from petitioner's family members and others, a probation officer's report, and petitioner's journal found at the crime scene. Dr. Greene also conducted two personal evaluations of petitioner while petitioner was incarcerated, meeting with petitioner for a total of about three and a half hours. Dr. Greene's declaration summarized petitioner's background, including that petitioner "suffered two traumatic head injuries at the age of 16 years old," and that after the head injuries, petitioner "became forgetful and depressed, and began withdrawing from friends." Dr. Greene reported that the head injuries, in addition to "other traumatic events that appeared to have a major negative impact on Mr. Quiming's mental state," led to petitioner being diagnosed with paranoid schizophrenia in 2003 or 2004. Dr. Greene observed that petitioner was "on and off, homeless and living on the streets from 2005 to 2015," and that while petitioner obtained mental health treatment at various points, he experienced symptoms including"' "whispering" and chronic symptoms of depression,'"" 'suspiciousness and paranoia,'" and hearing voices. Dr. Greene recounted reports that petitioner's mental health had worsened by 2014 and 2015, with petitioner exhibiting" 'extremely irrational behavior and . . . voices in his head.' "
Dr. Greene's declaration stated: "The evidence shows that this delusional and paranoid mental state persisted on the date of the offense (June 19, 2015)." Dr. Greene noted that family accounts and medical records showed that petitioner's "mental state was steadily deteriorating in the 2014-2015 time period" and that this "type of decompensation was not going to remedy itself, especially not when Mr. Quiming was off his medications and living on the streets." Dr. Greene based this opinion in part on petitioner's journal. Dr. Greene opined that the journal entry on the day leading up to the charged offenses "exhibited an actual but unreasonable fear in the threat posed by others." Dr. Greene also based his opinion as to petitioner's mental state at the time of the charged offenses on the nature of the crime, which he described as "highly irrational," and on petitioner's statements to family members and others that he stabbed Long "because the voices in his head told him to."
Dr. Greene also recounted information about petitioner's mental state during pretrial and trial proceedings, including records that reflect that petitioner refused mental health services soon after the charged offenses, and that "[t]here is no evidence of any further psychological assessment between the date of his admission to the Monterey County Jail and the end of his trial on November 18, 2015." Dr. Greene also summarized records about petitioner's post-conviction mental health treatment while in confinement, including that petitioner's "mental health significantly deteriorates when he is not under medication."
Dr. Greene's declaration then offered the following conclusions, which he stated were made to a reasonable degree of medical certainty:
"Mr. Quiming suffers from schizophrenia or schizoaffective disorder, which results in paranoia, delusional thoughts and auditory hallucinations (including command hallucinations). He has manifested symptoms associated with this diagnosis since 2003/2004, when he was first treated by Dr. Goldman. The [Department of Corrections and Rehabilitation] records reflect that the diagnosis remains valid to this day. Mr. Quiming also presents a range of risk factors associated with schizophrenia and schizoaffective disorder, including prior traumatic brain injury, [fn. omitted] a family history of the disease, childhood physical abuse, and other traumatic events in his past (including the abuse of his sister and the murder of his cousin).
"When Mr. Quiming's condition is not treated with anti-psychotic medication, Mr. Quiming decompensates and exhibits the symptoms of his mental illness. However, Mr. Quiming has developed many coping mechanisms over the years, including by remaining 'silent' in response to commands from the voices in his head.
"At the time of the offense, Mr. Quiming was not under medication and his mental health had steadily deteriorated over a period of months. Based upon the record, Mr. Quiming was likely suffering from his severe mental illness at the time of the offense, which resulted in paranoia, delusional thoughts and auditory hallucinations.
"The mental health evidence was relevant to the issue of premeditation and deliberation. Mr. Quiming's actions were made in response to a 'voice' in his head telling him not to ignore Mr. Long's comment. As noted above, many years before the incident, there is evidence that Mr. Quiming was hearing 'these whispering voices and it starts messin' with me.' [Citation.] The medical records from Florida reveal that only three months before the stabbing, Mr. Quiming 'presented with paranoia that appears to be worsening....' [Citation.] Only five weeks before the incident, Mr. Quiming's discharge summary stated that he presented 'significant mental health challenges including paranoia and a delusional thought pattern' and required 'a medication regimen to address his paranoid ideation and delusional cognition.' [Citation.] Mr. Quiming never received the needed medication, and his condition would only have persisted or worsened. Only hours before the stabbing, the evidence showed that Mr. Quiming was having paranoid delusions about the threat to personal safety posed by a woman on the bus. This evidence, along with the testimony of a medical expert and of the family, would have shown that Mr. Quiming's mental illness at the time of the offense severely impacted his ability to think in advance about what he was doing, and would have predisposed Mr. Quiming to act impulsively and rashly. Given his delusional and paranoid state, including the auditory hallucinations, it would have been very difficult, if not impossible, for Mr. Quiming to have been able to carefully weigh the considerations for and against his choice.
"The evidence was also material to Mr. Quiming's intent to kill with malice aforethought. Mr. Quiming's mental illness, and the resulting paranoia, delusional thoughts and auditory hallucinations, would have affected Mr. Quiming's reasoning, impaired his behavior, and impaired his ability to accurately perceive the situation. The evidence shows that his act was the product of a psychotic compulsion as a result of his chronic paranoid schizophrenia, which would have been relevant to whether he formed the required intent to kill.
"In addition, Mr. Quiming's condition would have resulted in him being unable to reasonably assess the threats posed by others. While at the jail, Mr. Quiming told his family and the probation officer that he felt compelled to stab Mr. Long because the victim had said something crude to the two other younger homeless individuals who were present, including Ms. Jasmine Aberc[r]ombie. Mr. Quiming was homeless, and he had experienced prior beatings while living on the streets. The incident occurred in the middle of the night, and the relevant area was very dark. Mr. Quiming had a history of abuse and trauma, including the physical violence from his father, the violent death of his cousin and the inability to protect his closest sibling from sexual abuse. The evidence shows that he had been recently decompensating, and having paranoid and unreasonable delusions only hours before the stabbing about the threats posed by a woman sitting on a bus. Based on all of this evidence, it is reasonably likely that Mr. Quiming's mental illness affected his perceptions regarding the fear of danger to self or others.
"The mental health evidence also shows that Mr. Quiming was incompetent to stand trial. Since Mr. Quiming did not receive treatment after the offense, he continued to decompensate during pretrial and trial proceedings. In fact, the stress of the incident, the arrest and the court proceedings likely made his symptoms worse. During this period, and through the time of trial in November 2015, Mr. Quiming lacked the ability to consult with his attorney with a reasonable degree of rational understanding. For example, the evidence shows that he told his relatives that the 'voices' in his head told him to remain silent and not speak to his attorney. This is consistent with the type of behavior exhibited by those suffering schizophrenia or schizoaffective disorder.
Mr. Quiming's condition could have been treated by Zyprexa or another anti-psychotic medication, but it was not. Given the lack of any treatment, Mr. Quiming's paranoid and delusional state would have persisted or worsened. Based upon all of the mental health evidence, I conclude that Mr. Quiming was incompetent to stand trial because he was unable to consult with his attorney with a reasonable degree of rational understanding."
5. Defense investigator
Windham, the defense investigator assigned to petitioner's case, testified that before trial, petitioner's relatives sent him information about petitioner's mental health history. Windham stated "[t]here may have been discussions" with trial counsel about possibly raising mental health defenses as part of petitioner's case, but he could not remember specific conversations in this regard; he only remembered discussing a selfdefense theory. Windham's notes also contained several entries indicating that petitioner's family informed Windham about petitioner's mental health issues, and that he left messages for several of these people. Windham stated he "vaguely" remembered trial counsel telling Windham that petitioner did not want to pursue a mental health defense, but he could not provide "clear details" about "when it happened or how much was discussed."
Windham testified that he talked to one mental health provider for whom petitioner's mother provided contact information. That provider supplied "limited" information, stating that she had not seen petitioner for some time and suggesting Windham obtain petitioner's medical records from the facility. However, Windham did not obtain these records, and he did not remember trial counsel asking him to obtain these or any other mental health records of petitioner. Windham did not contact any other providers about petitioner's mental health. Windham's notes stated that in early August 2015, he interviewed a person near the scene of the stabbings, and this person asked if petitioner "was going to claim mental illness as a defense."
Windham's log indicated an absence of investigative activity between September 1 and October 18, 2015; Windham stated that if any investigative activity took place during this period, it would have been related to a self-defense theory. Windham's investigation reports were dated November 12, 2015, the day opening statements were presented in petitioner's trial. Windham testified that two of the three witnesses he contacted in preparing the reports did not support a self-defense theory, and the third "actually didn't see how it initiated." Asked what self-defense theory the defense was pursuing, Windham testified: "Well, our theory was that [Long] was the heavy in that group; that he was the person that kind of ran the area, so to speak. [¶] And our guy was an outsider, and he was not welcome. So that was pretty much the gist of it."
Windham testified that he met with petitioner's mother on October 20, 2015, but that he did not remember what was discussed other than petitioner's mother generally discussing petitioner's mental illness. He stated he knew petitioner's mother at this meeting "was concerned about her son's mental wellbeing," and he remembered that "she was concerned about her son actually hearing voices," but he did not remember anything more about what petitioner's mother relayed and his notes did not contain information about what petitioner's mother stated.
Petitioner's aunt stated that she met with the defense investigator on October 20, 2015. Windham's notes state that he met with petitioner's aunt on this date, but the notes list the name of petitioner's mother, not petitioner's aunt. Windham clarified at the evidentiary hearing that he met with petitioner's mother but mistakenly listed her as petitioner's aunt.
The record in the evidentiary hearing contained emails from petitioner's family members to Windham providing contact information for people familiar with petitioner's mental health issues. The evidentiary hearing record also contained an investigation request from trial counsel, seeking Windham's assistance in talking to potential witnesses about a potential fight between Long and petitioner "over a smoking pipe." A second investigation request was also included in the evidentiary hearing record, requesting that Windham contact three witnesses to the stabbing who might testify that a group including petitioner and Long was fighting during the stabbing. Windham's report concerning his interview with Misamore, the surviving victim, stated that Misamore "insists that neither he nor [Long] said anything to [petitioner] to provoke him into to doing [sic] what he did."
6. Trial counsel
Petitioner's trial counsel was a public defender who had been a criminal defense attorney for about eight years at the time of petitioner's trial. Petitioner's case was trial counsel's second murder trial, and he had handled about five to ten murder cases and had taken 40 to 50 non-murder felony cases to trial by that point. Trial counsel was handling conservatorships for mentally ill persons and probate conservatorships at the time he represented petitioner, and he was handling "several" murder cases at the time, though he was not handling any non-murder felony cases while representing petitioner. By the time of the evidentiary hearing on the habeas petition, counsel had represented "hundreds" of clients who were diagnosed with schizophrenia.
Trial counsel testified that he later became Chief Deputy Public Defender, a supervisory position he had held for four years by the time of the January 2022 evidentiary hearing.
Trial counsel submitted two declarations in this matter. In the first, counsel stated that before trial, petitioner's family (including petitioner's mother, father, sister, and aunt) told him about petitioner's mental health problems, specifically that petitioner "had been diagnosed with paranoid schizophrenia," and that petitioner's family gave him "names of individuals and institutions who might have information regarding [petitioner's] mental health." The declaration also stated: "During my conversations with him, Mr. Quiming told me that he did not want his family to get involved in his case. He also told me that he did not want to pursue a mental health defense. I did not push him on the mental health defense, and deferred to his decision in this regard." The declaration noted that petitioner told a probation officer after trial that he heard one of the victims of the stabbings" 'say something perverse, '" that petitioner heard a voice in his head telling him not to ignore what was said, and that petitioner told the probation officer,"' "Something came over me and I couldn't stop myself"' and he stabbed [Long]." Counsel stated in his declaration that petitioner never told him this information before or during trial.
In this first declaration, trial counsel stated that petitioner had a "flat affect" during their meetings, but petitioner "generally seemed to be able to track what I was telling him." However, trial counsel's declaration stated that his meetings with petitioner were "different than meetings with other clients," and counsel stated: "There were times when Mr. Quiming did not appear engaged and did not appear to be in the 'right place' mentally. In particular, he was not forthcoming with information about the incident or about his mental state during the incident." Finally, trial counsel's declaration stated: "I did not present a mental health defense at trial, and did not request a mental health instruction (CALCRIM 3428) related to the charged offenses. As stated above, I planned to present a self-defense theory at trial. Based upon my prior conversations with Mr. Quiming, I anticipated presenting the self-defense claim through his testimony during the defense's case-in-chief. However, during the trial, Mr. Quiming informed me that he no longer wanted to testify on his behalf. I was therefore unable to present a self-defense theory properly, and in fact did not present any testimony or evidence during the defense's case-in-chief."
In the second declaration, trial counsel stated that he had "handled many cases in which my clients suffered from mental health issues," including serving as the public defender assigned to a mental health court. Trial counsel stated that he knew petitioner had "mental health challenges," and he stated: "Several of [petitioner's] family members contacted me and told me about his mental health issues and there was some evidence in the case - specifically his journal entries - which indicated the presence of mental illness." Trial counsel stated that he considered raising a doubt as to petitioner's competency, but he decided petitioner did not meet the criteria for raising a doubt, and he stated that "when we would talk, I felt [petitioner] had a factual and rational understanding of the crime and the proceedings." Trial counsel's second declaration then relayed the following:
"I considered raising a sanity defense at trial and discussed the issue with Mr. Quiming. He was adamant that he did not wish to proceed in that manner. He understood that an insanity defense could result in his commitment to a mental institution and that such commitment could be for an indefinite period of time. He was not willing to be institutionalized and explicitly told me that he did not want to pursue a mental health defense.
"Mr. Quiming and I discussed the potentiality of entering a plea to voluntary manslaughter, but he did not want to enter into that plea agreement due to the amount of time that he would face due to his strike prior. I had discussed this possible disposition with [the prosecutor]. [The prosecutor] said he was open to considering a plea deal for a stipulated term in the 'high twenties' (years in prison.). Mr. Quiming told me that would be the rest of his life and he would rather go to trial.
"During our conversations, Mr. Quiming was different from my clients without mental health issues. He had a flat affect, but he generally seemed to understand what I was telling him and was able to participate in conversations regarding his case. He was able to discuss potential defenses and potential outcomes of various scenarios. He understood the consequences of an insanity defense[ ] as well as the potential sentence that he faced.
"Prior to trial in this case Mr. Quiming had explained the events leading up to the stabbings. He articulated a factual scenario which made self-defense a viable theory on which to defend the case. Mr. Quiming described the incident that occurred and explained why his actions were justified. Mr. Quiming and I discussed the facts of the case, possible strengths and weaknesses of his proposed defense, and alternative defenses.
"At no time did I believe that Mr. Quiming was unable to participate in his own defense. At no time did I believe that Mr. Quiming did not understand the proceedings. At no time did I believe that Mr. Quiming was incompetent to proceed."
Trial counsel attached two undated handwritten notes to his second declaration. One noted that petitioner was homeless and stated: "We are not going to talk to any family for now." The second stated counsel spoke with petitioner's mother and noted information about petitioner's mental health, including that petitioner "may [have] had some auditory hallucinations." The evidentiary hearing record also contained two sets of typewritten notes regarding counsel's visits with petitioner in jail. One stated that petitioner "doesn't want to talk about that night" and "would like to be judged without having to talk about it." The second stated: (1) petitioner relayed that "he felt he was in danger and the group was using bad language"; (2) petitioner "says he doesn't want to testify"; and (3) counsel and petitioner talked "about our different options and how if we are going with self-defense we most [likely] need him to testify."
At the evidentiary hearing, trial counsel stated that he knew mental health issues could be relevant to defending a murder case, not only to support a not guilty by reason of insanity plea, but also to negate premeditation and deliberation or malice aforethought and to support an imperfect self-defense theory. Counsel stated that he "imagine[d]" that he would have asked petitioner about his mental health when first meeting him, but he had no independent memory of having had this discussion.
Trial counsel testified that he met with petitioner's mother "towards the beginning of my representation with" petitioner and also had a phone call with petitioner's mother. During these discussions, trial counsel stated, petitioner's mother told him petitioner suffered from schizophrenia. Trial counsel testified that he believed he contacted at least one of the mental health providers petitioner's mother provided contact information for, but this person just provided "some stories about how [petitioner] had been suffering," and counsel did not remember specific information this person provided about petitioner's mental health.
Trial counsel testified that he requested Windham's assistance to explore a selfdefense claim, and that petitioner told his counsel he was "interested in seeking some sort of a self-defense defense." Counsel testified that concerning the stabbings, petitioner "said that there was a guy who got aggressive with him and he was afraid that he was going to be robbed." Counsel testified that he was open to other potential defenses besides self-defense, but that he was not investigating other potential defenses in July 2015, the month after the stabbings. Counsel acknowledged that no testimony from petitioner's preliminary hearing supported a self-defense theory.
Trial counsel testified that he did not remember specific information about meeting with petitioner's family, but he testified that petitioner's family members informed him of petitioner's mental health issues including schizophrenia and auditory hallucinations, and that counsel told petitioner's aunt "there are certain things that we could do if we decided to go down that road" of potential mental health defenses. Counsel also testified that he was aware of petitioner's journal before trial, and that he believed the entry from the day leading up to the charged offenses showed petitioner was having "delusional thought process, at least." Counsel testified that he was aware that a police report from the stabbings stated petitioner was earlier diagnosed with "bi-polar and schizophrenia," and that counsel did not contact the doctor who provided this diagnosis. Counsel testified that based on the police report, he had reason to believe petitioner had previously received treatment for mental illness and that petitioner had stopped receiving treatment prior to the charged offenses.
Trial counsel then testified about a meeting with petitioner that took place on the eve of petitioner's arraignment, during which counsel took notes. Counsel testified that at this meeting, "[m]y thought at that time had still been to try and get him a deal for manslaughter," but petitioner "didn't really like that idea." Trial counsel testified that petitioner "also didn't like the idea of [a not guilty by reason of insanity] plea at any point because he didn't like the idea of being confined for those periods of time." Counsel testified that the prosecution offered no specific plea agreement, but the prosecution was "willing to plea the case down to manslaughter," in which case petitioner would have faced a sentence "in the high 20s." Because petitioner was not willing to accept such a deal or plead not guilty by reason of insanity, counsel sated, "I thought at this juncture it was best to get a trial date and see what we could do." Counsel testified that he told petitioner it would be difficult to obtain a self-defense instruction from the court if petitioner did not testify, and that petitioner responded: "If he had to, he would have. That's what he said. But he preferred not to."
Trial counsel also recounted a meeting he had with petitioner on September 30, 2015, in which they discussed prosecution witnesses, none of whom would support a self-defense theory at trial. Counsel testified that petitioner told him he" 'felt he was in danger'" at the time of the charged offenses and that the group that included the victims" 'was using bad language,'" and petitioner "said he thought they were going to try and rob him." Counsel testified that the prosecution's witnesses did not support a selfdefense theory, and he could not recall any specific facts that would support a selfdefense theory other than that petitioner told him at one point "that the individuals were coming after him for a pipe I think it was, and there was some type of scuffle about a pipe." However, counsel testified that he did not remember a pipe being recovered from the scene of the stabbings, or whether there was any physical evidence to support petitioner's articulated self-defense claim. Counsel testified that petitioner told him at this September 30 meeting that he did not want to testify, and that counsel believed petitioner would need to testify because there was no other evidence to support selfdefense. Counsel testified that early in counsel's representation of petitioner, petitioner "went back and forth" on testifying, but "that as we got closer to trial, Mr. Quiming was holding steady on not wanting to testify." Counsel testified that he did not remember asking petitioner any questions about his mental health during the September 30 meeting, that he was not aware petitioner had declined treatment for his mental illness in jail, and that he did not contact the jail to determine if petitioner was receiving treatment.
Trial counsel testified that presenting evidence of petitioner's mental health issues would not necessarily have been inconsistent with presentation of a self-defense claim in petitioner's case, stating he could have potentially presented an imperfect self-defense theory at the same time as he presented a perfect self-defense theory. Counsel acknowledged that his notes contained no entries regarding communicating with petitioner regarding potential mental health defenses, consulting with a mental health expert, considering a mental health evaluation of petitioner, making any efforts to obtain petitioner's mental health record, considering any mental health defense, evaluating petitioner's competency to stand trial, or talking with petitioner's family members apart from the discussions counsel already testified to.
Trial counsel reaffirmed the statements in his declarations that petitioner had a "flat affect" during their meetings, and that his meetings with petitioner were "different than meetings with other clients." Counsel testified that he knew petitioner suffered from some form of mental illness (most likely bipolar schizophrenia), so he handled petitioner differently from other clients. Counsel affirmed the statement in his declarations that petitioner appeared not to be in the" 'right place mentally,'" testifying that "sometimes if I was trying to focus on X, Mr. Quiming would be more interested in talking about Y," so counsel would try to focus petitioner. Counsel testified "[i]t took awhile for Mr. Quiming to even want to discuss anything that transpired" the night of the charged offenses.
Regarding a self-defense claim, trial counsel testified that he did not remember that Windham uncovered any information that would support such a claim at trial, and he agreed that he saw "problems" with the self-defense theory leading up to trial. He replied negatively when asked whether there was "any evidence showing that the victims had initiated the attack against Mr. Quiming" and whether "apart from anything Mr. Quiming might have said, was there any evidence showing that Mr. Quiming reasonably believed that the immediate use of deadly force was necessary to defend against the imminent danger of great bodily injury or death." Counsel stated that "Mr. Quiming was going to have to testify" to present a self-defense claim unless evidence supporting this defense came out during cross-examination, "but it mainly hinged on Mr. Quiming." Counsel testified that petitioner informed him during trial that he would not testify, and when asked what this did to the viability of the self-defense theory at trial, trial counsel stated, "I believe it was not a good defense." Thus, trial counsel presented no evidence during the defense's case-in-chief.
Trial counsel testified that after trial, he received correspondence from petitioner's aunt about petitioner's mental health issues but that he did not declare a doubt as to petitioner's competency as a result of these communications, and he did not remember if he contacted petitioner's aunt regarding her statement that petitioner had said he did not tell trial counsel details of the case due to voices petitioner heard.
Finally, trial counsel testified that he did not remember any meetings with petitioner other than the ones previously covered. Counsel testified that petitioner did not want to pursue a not guilty by reason of insanity defense, but that counsel did not document this. Counsel acknowledged that a not guilty by reason of insanity defense is not the only way mental health is relevant in defending a murder case. Counsel was then asked: "Did you ever discuss with Mr. Quiming the possibility of raising his mental health to negate the element of premeditation or deliberation required for first-degree murder?" Counsel replied: "We talked about it. I don't know if we talked about necessarily in that respect. We talked about it in order to get to a manslaughter." However, counsel acknowledged that he did not document this discussion. Counsel was then asked: "Did you discuss with Mr. Quiming the possibility of raising his mental health to negate the prosecution's claim that he had malice aforethought," and counsel replied affirmatively. Asked whether he documented this discussion, counsel replied: "Again, to the previous question, just so I'm clear, I don't think I ever really discussed it in those exact terms with Mr. Quiming. It would have been more, it's something we can use to get first down to a second or to a manslaughter. And then no, I did not document that." With that, the direct examination of trial counsel ended.
On cross-examination, trial counsel recounted that when speaking with petitioner, "every time we tried to come to some sort of resolution, it was just too much time, and that was really what he held onto." Counsel also testified that he assessed petitioner to be competent to stand trial, that over time petitioner talked more as he grew more comfortable, and that petitioner articulated a set of facts that would form the basis for a viable self-defense claim in that he felt threatened by the victims and thought he was in danger of being robbed. Trial counsel testified that he discussed possible defenses with petitioner, stating: "We would talk about what we could potentially do with the event that evening, what we could do if he was to testify, what we'd be able to do if some of the witnesses were unavailable -- because at the beginning I remember that being a potential issue for the prosecution. And then we talked a lot about plea bargains." Trial counsel testified that he talked to petitioner about how they could use mental health evidence to negate elements of first degree murder or otherwise gain a favorable disposition in the case. Counsel testified that petitioner did not want to pursue a not guilty by reason of insanity plea, and when asked about petitioner's views on using a mental health defense in some other way, counsel stated: "Again, it came down to him -- it was too much time." Asked whether petitioner believed a voluntary manslaughter verdict would involve too much prison time, counsel replied affirmatively. Counsel testified that petitioner initially did not want to testify at trial, but as trial began, petitioner agreed to testify. Trial counsel testified that in terms of choosing a defense strategy: "My view has always been I put a lot of the stock in what they want. It's their lives. At the time of this case, I don't believe that there was any caselaw about it. But I would always let the clients make the decisions as to how they wanted to proceed." Thus, trial counsel testified that he would not present a defense his client was adamantly against.
Counsel also testified on cross-examination that he did not obtain any of petitioner's medical records because "[a]t that time I just didn't think I was going to use them, so I didn't get them." Finally, he testified that he did not remember anyone telling him after trial that petitioner had remained silent when meeting with counsel, or that petitioner was actively experiencing auditory hallucinations, and that if petitioner had been silent when meeting with him, he would have remembered this and would have brought this to the trial court's attention.
7. Other defense expert
Ogul, a criminal defense attorney, was designated as an expert in standard of care and prevailing norms in defending murder cases in California at the time of petitioner's trial. Ogul generally noted the lack of documentation supporting aspects of trial counsel's testimony; he opined that trial counsel should have investigated petitioner's mental health issues regardless of whether trial counsel planned to present a mental health defense at trial; and he testified that evidence about petitioner's mental health issues could have been presented in conjunction with a self-defense claim. Ogul also opined that petitioner's refusal to testify at trial should have prompted trial counsel to declare a doubt as to petitioner's competency during trial.
D. Trial Court's Ruling
Following the evidentiary hearing, the trial court (the same judge who presided over petitioner's trial) issued a detailed written order denying the petition. The trial court first summarized its ruling as follows: "A higher court already considered petitioner's competence, determining him to be competent at the time of trial. The evidence presented at the evidentiary hearing further supports that conclusion. Because petitioner was competent and presented himself as such, there was no reason to declare a doubt. Moreover, petitioner explicitly told his counsel he would not allow presentation of mental health defenses or consider accepting a sentence which a mental health defense would warrant. Given these circumstances his counsel was not deficient for failing to investigate defenses which would not be useful. Finally, petitioner's refusal to testify meant that the foundation for any mental health defense would have been lacking. Thus, petitioner suffered no prejudice from failure to investigate or present such a defense. The petition is denied."
The trial court first found the declarations of petitioner's family credible insofar as they reflected what family members heard and believed, though the trial court found the statements by petitioner reflected in the family members' declarations to be "self-serving hearsay, inconsistent, and given no weight."
The trial court then summarized Dr. Greene's testimony, noting in particular: "Greene did not assert that petitioner had asserted mental illness at the time of the crime during his meetings with Greene." The trial court also noted that Dr. Greene had not spoken with petitioner's trial counsel, that he had not reviewed trial counsel's declarations, and that Dr. Greene "had no personal knowledge of petitioner's mental state at the time of trial and was attempting to 'reconstruct' it." The trial court concluded with regard to Dr. Greene: "The court finds that Dr. Greene is well qualified. However, the court gives no weight to Dr. Greene's conclusions that petitioner was 'likely suffering' from a mental illness at the time of the crime and that petitioner was incompetent at the time of trial. Greene's opinion regarding petitioner's mental state at the time of the crime was not supported by statements of petitioner to Greene, and only petitioner can know if he was delusional at the time of the crime; anything else is speculation. Moreover, Greene's 'reconstruction' of petitioner's mental state during trial did not consider the observations of the person who interacted with petitioner most at trial, his attorney . . ., and therefore cannot be said to have been a thorough investigation."
After summarizing the testimony of trial counsel and Windham and finding them credible, the trial court gave Ogul's testimony "little, if any, weight," finding Ogul "described an ideal, or the best practices standard" rather than the legal standard for ineffective assistance of counsel.
The trial court then found petitioner was competent to stand trial. The trial court noted four pieces of evidence introduced at the evidentiary hearing on this issue: (1) Dr. Greene's testimony concerning petitioner's incompetence at the time of trial; (2) trial counsel's testimony concerning petitioner's demeanor and actions leading up to and during the trial; (3) Ogul's testimony that trial counsel should have declared doubt as to petitioner's competency when petitioner declined to testify; and (4) petitioner's medical records. The trial court concluded that this information "confirmed what was known at the time of the first appeal: petitioner has a longstanding history of mental illness, and asserted to his family that he was hearing voices which told him not to cooperate with his attorney," and that trial counsel's testimony strengthened the position articulated in this court's initial opinion that petitioner was competent.
As to whether trial counsel was ineffective, the trial court found: "There is no question that [trial counsel] was on notice of petitioner's mental health issues, that they could be relevant at trial, and that [trial counsel] neither investigated beyond discussions with petitioner nor presented mental health defenses." However, the trial court concluded that trial counsel was not ineffective for failing to investigate petitioner's mental health issues or for failing to declare a doubt as to petitioner's competency. The trial court focused at first on the fact that trial counsel did not declare a doubt as to petitioner's competency, discussing trial counsel's observations of petitioner, the notion that declaring a doubt may not have benefitted petitioner in the "flow of trial," and the lack of a reasonable probability that the trial court would have found petitioner incompetent. As to trial counsel's failure to investigate possible mental health defenses, the trial court summarized: "Although counsel generally has a duty to investigate after being put on notice, petitioner presented himself as functional and insisted on eschewing mental health defenses; the court cannot oblige an attorney to investigate defenses which will not be presented at trial. And even if failing to investigate was a breach of [trial counsel's] duty, petitioner's refusal to testify rendered any mental health defense unpresentable. Therefore the lack of investigation caused no prejudice to petitioner's defense. The elements of ineffective assistance of counsel are not present."
The trial court summarized cases that held counsel generally is required to investigate possible defenses, but it distinguished these cases, ruling that "failure to investigate does not by itself establish deficient performance, particularly when the client would frustrate the defense ...." The court also stated that "there may also have been a strategic justification for not investigating the mental health defenses," as Windham testified that he had difficulty locating witnesses and trial counsel testified that locating witnesses "could be a potential challenge for the prosecution." Thus, the trial court stated, "a 'speedy trial' strategy, testing the ability of the prosecution to bring forth the necessary witnesses, may have been significant at the time, given petitioner's uncooperative nature regarding mental health defenses and the weakness of the selfdefense claim." The trial court concluded that "petitioner's lack of cooperation, informed decision to reject mental health defenses, and the possibility of a speedy [trial] strategy" indicated trial counsel was not ineffective for failing to investigate mental health defenses.
The trial court also concluded that no prejudice resulted from trial counsel's failure to investigate mental health defenses. The court concluded: "at the time of trial there was no known evidence-not even hearsay-that petitioner was suffering from a mental health episode at the time of the stabbings." Noting that petitioner told a woman he stabbed two people who" 'deserved to die,'" the trial court stated that "any evidence regarding [petitioner's] mental illness would have been properly excluded as without foundation or relevance and causing an undue consumption of time." The trial court also concluded that any evidence of petitioner's mental illness would not have demonstrated that petitioner's mental illness "played any part in the violence." The trial court focused on the following inconsistences in petitioner's statements about the stabbings: (1) petitioner told his aunt that he believed a woman was about to be sexually assaulted and that a voice told him not to ignore this, while the aunt's letter to the trial court omitted mention of sexual assault; (2) petitioner's sister's letter to the trial court stated that petitioner was motivated to protect a woman but this conflicted with the sister's declaration that petitioner told her he had no recollection of what happened during the stabbings; and (3) there was no record of petitioner making assertions about fearing for another or hearing voices to police, trial counsel, Dr. Greene, or in petitioner's own declaration that was ultimately not admitted. The trial court also ruled that "evidence of petitioner's mental health history would not have been able to negate premeditation, malice, or the intent to kill, or establish reasonable fear, without statements by petitioner regarding his mental state at the time" of the charged offenses. Finally, the trial court ruled that petitioner was not prejudiced by any deficiency in his counsel's performance because of the strength of the evidence against him, including evidence of petitioner's "brooding, repeated stabbings of the victims without provocation, and assertion that the victims 'deserved to die,' uncontradicted by properly admitted statements of delusion or fear on petitioner's part ...." Accordingly, the trial court denied the writ petition.
E. Subsequent Proceedings
Petitioner then sought a writ of habeas corpus in this court, which was summarily denied. The California Supreme Court granted review and transferred the matter with directions for this court to "vacate its summary denial" and "to issue an order to show cause, returnable before that court." We then vacated our order denying the petition and issued an order to show cause. The Attorney General filed a return, asserting the petition should be denied, and petitioner submitted a traverse. We then requested and received supplemental briefing.
This court requested supplemental briefing on the following four questions: (1) The trial court's order denying the petition found "petitioner explicitly told his counsel he would not allow presentation of mental health defenses or consider accepting a sentence which a mental health defense would warrant." If the trial court was correct in this conclusion, was trial counsel permitted to present evidence at trial about petitioner's mental health issues over petitioner's objection? (2) Assuming trial counsel was ineffective in failing to investigate possible mental health defenses in petitioner's trial, did this deficient performance prejudice petitioner with regard to his conviction of attempted voluntary manslaughter, or was it reasonably probable petitioner could have been found guilty of a lesser offense on this count had evidence of his mental health issues been investigated and presented? (3) Assuming trial counsel was ineffective in failing to investigate and present possible mental health defenses in petitioner's trial, and petitioner was prejudiced by the deficient performance with regard to his first degree murder conviction, what offense(s) is it reasonably probable petitioner would have been convicted of for count 1 had evidence of petitioner's mental health issues been investigated and presented? (4) Is the appropriate disposition for this court to modify the conviction for count 1 to a lesser degree and give the prosecution a specified period of time in which to set the case for retrial on the original charges?
III. DISCUSSION
A. Ineffective Assistance of Counsel
1. Legal Principles and Standard of Review
a. Ineffective assistance of counsel and habeas corpus petitions generally
To prevail on an ineffective assistance of counsel claim, a criminal defendant must establish both that his or her counsel's performance was deficient and that he or she suffered prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) The deficient performance component of an ineffective assistance of counsel claim requires a showing that "counsel's representation fell below an objective standard of reasonableness" under prevailing professional norms. (Id. at p. 688.)" 'Unless a defendant establishes the contrary, we shall presume that "counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy." [Citation.]'" (People v. Lopez (2008) 42 Cal.4th 960, 966.) "A reviewing court will not second-guess trial counsel's reasonable tactical decisions. [Citation.]" (People v. Kelly (1992) 1 Cal.4th 495, 520 (Kelly).) A reviewing court "must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." (Strickland, supra, at p. 690.) "Because '[r]epresentation of an accused murderer is a mammoth responsibility' [citation], the 'seriousness of the charges against the defendant is a factor that must be considered in assessing counsel's performance.' [Citation.]" (In re Jones (1996) 13 Cal.4th 552, 566.)
Regarding prejudice, a "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, supra, 466 U.S. at p. 694.) The prejudice component of the ineffective assistance of counsel test" 'is not solely one of outcome determination. Instead, the question is "whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair." [Citation.]' [Citation.]" (In re Hardy (2007) 41 Cal.4th 977, 1019.)
"A person unlawfully imprisoned or restrained of their liberty, under any pretense, may prosecute a writ of habeas corpus to inquire into the cause of the imprisonment or restraint." (§ 1473, subd. (a).) "We have repeatedly emphasized that a claim of ineffective assistance is more appropriately decided in a habeas corpus proceeding. [Citations.] The defendant must show that counsel's action or inaction was not a reasonable tactical choice, and in most cases '" 'the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged ....'"' [Citations.]" (People v. Michaels (2002) 28 Cal.4th 486, 526.)
"Because a petition for a writ of habeas corpus seeks to collaterally attack a presumptively final criminal judgment, the petitioner bears a heavy burden initially to plead sufficient grounds for relief, and then later to prove them." (People v. Duvall (1995) 9 Cal.4th 464, 474.) "Where, as here, the superior court has denied habeas corpus relief after an evidentiary hearing (viz., the hearing held on the order to show cause ordered in response to petitioner's first habeas corpus petition) and a new petition for habeas corpus is thereafter presented to an appellate court based upon the transcript of the evidentiary proceedings conducted in the superior court, 'the appellate court is not bound by the factual determinations [made below] but, rather, independently evaluates the evidence and makes its own factual determinations.' [Citation.]" (In re Resendiz (2001) 25 Cal.4th 230, 249, fn. omitted (Resendiz), abrogated on other grounds by Padilla v. Kentucky (2010) 559 U.S. 356, 370.) Thus, a Court of Appeal is entitled to undertake" 'an independent review of the record [citation] to determine whether petitioner has established by a preponderance of substantial, credible evidence [citation] that his [or her] counsel's performance was deficient and, if so, that [he or she] suffered prejudice.' [Citation.]" (Resendiz, supra, at p. 249.) However, "any factual determinations made below 'are entitled to great weight . . . when supported by the record, particularly with respect to questions of or depending upon the credibility of witnesses the [superior court] heard and observed.' [Citations.] On the other hand, if 'our difference of opinion with the lower court . . . is not based on the credibility of live testimony, such deference is inappropriate.' [Citations.]" (Ibid.)
b. Mental health defenses - duty to investigate
"Under the right to effective assistance of counsel, 'the defendant can reasonably expect that in the course of representation his [or her] counsel will undertake only those actions that a reasonably competent attorney would undertake. But he [or she] can also reasonably expect that before counsel undertakes to act at all he [or she] will make a rational and informed decision on strategy and tactics founded on adequate investigation and preparation. [Citations.] If counsel fails to make such a decision, his [or her] action-no matter how unobjectionable in the abstract-is professionally deficient.' [Citation.]" (In re Hill (2011) 198 Cal.App.4th 1008, 1016.) A criminal defendant "is entitled to the reasonably competent assistance of an attorney acting as his [or her] diligent and conscientious advocate. [Citation.] This means that before counsel undertakes to act, or not to act, counsel must make a rational and informed decision on strategy and tactics founded upon adequate investigation and preparation. [Citations.]" (In re Marquez (1992) 1 Cal.4th 584, 602.)
The United States Supreme Court in Strickland recognized a duty of trial counsel to investigate potential defenses, though it held that this duty depends on the actions and statements of the defendant. The court stated: "The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information. For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether. And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable." (Strickland, supra, 466 U.S. at p. 691.)
The California Supreme Court has addressed trial counsel's duty to investigate a client's mental health issues to present a possible mental health defense to a murder charge in three cases. First, in Saunders, the petitioner was sentenced to death for first degree murder and then alleged his appointed counsel "failed to consider, investigate, and present available evidence tending to establish his diminished capacity to commit the charged crimes." (Saunders, supra, 2 Cal.3d at p. 1036.) The court noted that two months before the petitioner's trial, the petitioner's mother wrote to trial counsel notifying counsel that the petitioner had suffered a fractured skull and two brain concussions a few years before the charged offenses, that three tests after the head injuries showed "slight organic brain damage," that the injuries "had the effect of triggering 'eratic [sic] behavior,'" that a doctor who treated the petitioner advised that at times the petitioner would not know the difference between right and wrong, and that hospital records showed the petitioner had" 'a type of epilepsy.'" (Id. at pp. 10361037.) Trial counsel did not answer the letter, personally contact the doctor named in the letter, or personally obtain the petitioner's medical records. (Id. at p. 1037.) However, two days after the petitioner's mother directed the letter, the petitioner directed a letter to his counsel indicating that the petitioner had" 'made arrangements to have complete medical and mental diagnosis sent to your offices for whatever help it may be.'" (Ibid.) At the petitioner's trial, trial counsel presented no evidence on the petitioner's behalf. (Ibid.) However, the same day as the verdicts, a psychologist sent a letter and several medical reports involving the petitioner to trial counsel noting issues with the petitioner's brain and related symptoms, and a few days later, the petitioner's mother sent additional information about a change in the petitioner's behavior following the petitioner's second concussion. (Id. at pp. 1037-1038.) Trial counsel did not offer evidence in mitigation in the penalty phase of the trial. (Id. at p. 1038.) In a letter to the petitioner after the trial, trial counsel acknowledged receiving information about the petitioner's mental health issues, stating," 'It is true that I did receive medical and psychiatric reports with regard to your case. I am certain that I did mention it to you and felt that it would in no way assist at the trial of your case.'" (Id. at pp. 1038-1039.) In post-trial proceedings, trial counsel generally agreed with a declaration by the petitioner stating that counsel" 'never considered nor investigated the possibility of using the above mentioned medical and psychiatric reports in either the guilt or penalty phase'" of the petitioner's trial. (Id. at p. 1040, italics omitted.)
The California Supreme Court, noting that the petitioner had already been granted a new trial on the death penalty sentence, held that the petitioner was entitled to a new trial as to guilt due to ineffective assistance of counsel. (Saunders, supra, 2 Cal.3d at pp. 1041, 1049-1050.) The court observed that fundamental among the standards for determining whether a criminal defendant's due process rights have been met "is that which places upon counsel the duty to conduct careful factual and legal investigations and inquiries with a view to developing matters of defense in order that he [or she] may make informed decisions on his [or her] client's behalf both at the pleading stage [citations] and at trial [citations]." (Id. at pp. 1041-1042.) The court noted that trial counsel made a decision to exclude or withhold the issue of the petitioner's diminished capacity with awareness of the doctrine of diminished capacity and its possible application to the petitioner's case, "and that counsel had 'tactical' and 'strategic' reasons for this decision which were, in his judgment, compelling." (Id. at p. 1048.) However, the court held as follows: "It is also established, however, that counsel's decision was made without the benefit of substantial factual inquiry into the specifics of petitioner's mental condition. Although counsel was advised some two months prior to trial that petitioner had earlier sustained head injuries which resulted in organic brain damage, and although he spoke briefly with petitioner and his mother about the matter, he undertook no serious efforts to obtain available medical reports reflecting past diagnosis and treatment. Moreover, he made no effort to have petitioner examined by a psychiatrist, even though petitioner's mother had volunteered to pay for the services of a private defense psychiatrist in the matter. In short, the record establishes beyond dispute that counsel made the decision not to raise the issue of diminished capacity wholly without the benefit of medical opinion in the matter and with full knowledge that medical reports were in existence." (Ibid.)
The court then held: "Although counsel's decision not to raise the defense of diminished capacity on petitioner's behalf was made for 'tactical' and 'strategic' reasons sufficient in counsel's judgment to support it, in the circumstances of this case the failure of counsel to avail himself of information relevant to the defense removed all rational support from that decision. We cannot say, of course, what such further inquiry might have revealed.... By failing to make any effort at all to follow the lead afforded by information in his possession counsel precluded himself from making a rational decision on the question. It must therefore be concluded on this record that the possible defense of diminished capacity 'was withheld not through deliberate though faulty judgment, but in default of knowledge that reasonable inquiry would have produced, and hence in default of any judgment at all.' [Citation.]" (Saunders, supra, 2 Cal.3d at p. 1049.) The court also stated: "[T]he possible defense so withheld must be termed a 'crucial' one -especially in view of the insubstantiality of the defense actually offered. [Citations.] Clearly a defense based upon petitioner's mental condition was in no way inconsistent with the defense offered by counsel." (Ibid.)
In Mozingo, the defendant was sentenced to death after being convicted of the first degree murder and rape of his stepmother. (Mozingo, supra, 34 Cal.3d at pp. 928-929.) A few days after the charged offenses, the defendant confessed to his sister that he had killed and raped his stepmother, but then later told his sister that this was not true. (Id. at pp. 929-930.) At trial, the defendant denied committing the charged offenses, testifying that his confession to his sister was false. (Id. at pp. 930-931.) Police found no physical evidence or fingerprints connecting the defendant to the charged offenses. (Id. at p. 930.) Before trial, the prosecutor gave trial counsel reports that a referee later concluded contained" 'significant material which would alert a reasonably competent attorney to investigate possible mental defenses.'" (Id. at p. 932.) However, trial counsel declined to investigate possible mental health defenses because such defenses would be inconsistent with the trial strategy of denying complicity in the murder and because the defendant "refused to enter an insanity plea and specifically instructed counsel that he wanted no psychiatrists to examine him." (Ibid.)
In combined appeal and habeas proceedings, the defendant asserted that his trial counsel was ineffective for failing to investigate a possible insanity or diminished capacity defense and failing to present evidence of the defendant's mental state and background as mitigating circumstances at the penalty phase. (Mozingo, supra, 34 Cal.3d at p. 931.) The court first noted that a diminished capacity defense could have "weakened or conflicted with" the defendant's alibi defense, but it held that "a possible conflict between a diminished capacity and an alibi defense would not excuse counsel's failure initially to investigate the potential strengths of a 'mental defense' vis-a-vis an uncorroborated alibi defense. [Citation.]" (Id. at p. 934.) The court, citing an earlier decision, held:" 'By his inaction, deliberate or otherwise, counsel deprived himself of the reasonable bases upon which to reach informed tactical and strategic trial decisions.'" (Ibid., quoting People v. Frierson (1979) 25 Cal.3d 142, 163.) The court also rejected the argument that trial counsel's failure to investigate possible mental health defenses was excused by the defendant's rejection of such defenses and the defendant's refusal to cooperate in developing such defenses. (Mozingo, supra, at p. 934.) The court held that cases the Attorney General cited for the proposition that the defendant's rejection of such defenses excused trial counsel's inaction "do not suggest . . . that a client's initial opposition should excuse counsel from undertaking sufficient investigation of possible defenses to enable counsel to present an informed report and recommendation to his client." (Ibid.) The court held that the defendant's case was distinguished from the cases the Attorney General cited, because the defendant's alibi was uncorroborated and contradicted by the defendant's confession to his sister, "a factor which should have induced defense counsel to investigate carefully all alternative theories of defense." (Ibid.) Thus, the court adopted the findings and conclusions of the referee and granted a writ of habeas corpus. (Id. at p. 935.)
Finally, in Ledesma, the defendant was convicted of first degree murder, kidnapping, and robbery and was sentenced to death. (Ledesma, supra, 43 Cal.3d at p. 176.) Trial counsel successfully petitioned to have a psychiatrist examine the defendant, and as the defendant pleaded not guilty, the trial court asked trial counsel whether the defendant would plead not guilty by reason of insanity or pursue a diminished capacity defense. Trial counsel replied that these approaches would not be pursued. (Id. at p. 179.) After his trial, the defendant petitioned for a writ of habeas corpus, alleging that his counsel was ineffective for failing to present a defense of diminished capacity, along with numerous other allegations of ineffective assistance of counsel. (Id. at pp. 191-192.)
The California Supreme Court noted that trial counsel did not "retain anyone to conduct a full and independent investigation into the facts of the case. Indeed, he made virtually no investigation at all." (Ledesma, supra, 43 Cal.3d at p. 193.) Specifically, the court noted that trial counsel did not pursue any investigation into the defendant's mental state at the time of the charged offenses, other than interviewing the defendant and seeking the appointment of the psychiatrist. (Id. at p. 194.) The court noted that trial counsel possessed information related to the defendant's background, drug use, and mental health issues at and before the time of trial, including information from several of the defendant's relatives. (Id. at pp. 194-195.) The court also noted that trial counsel made no motions except to have the psychiatrist appointed, that he made no objections during jury selection, and that at trial, "he did practically nothing to limit the prosecutor's comments and questions, did not protect his witnesses or engage in extensive cross-examination of the prosecutor's witnesses, and was otherwise in large part essentially passive." (Id. at p. 194) The court also noted that trial counsel "was gambling compulsively and as a result directed his energy and attention to his compulsion and not to the defense of his client." (Id. at p. 196.)
The court then found the defendant's counsel was constitutionally ineffective in failing to investigate possible mental health defenses related to the defendant's drug use, rejecting an argument from the Attorney General that the failure to investigate was excused by the defendant's insistence on presenting an alibi defense. The court first held that trial counsel actively participated in the decision to present an alibi defense and that the defendant did not insist on the alibi defense. (Ledesma, supra, 43 Cal.3d at p. 221.) The court then held: "But even if defendant had in fact insisted on the alibi defense from the very beginning and had as a consequence rejected the use of diminished capacity or any other 'mental defense' and refused to cooperate in developing such a defense, the Attorney General's contention would still lack merit. Counsel's first duty is to investigate the facts of his [or her] client's case and to research the law applicable to those facts. 'Generally, the Sixth Amendment and article I, section 15 [of the California Constitution] require counsel's "diligence and active participation in the full and effective preparation of his [or her] client's case." [Citation.] Criminal defense attorneys have a" 'duty to investigate carefully all defenses of fact and of law that may be available to the defendant ....'"' [Citation.] The client's initial insistence on one defense and opposition to all others does not 'excuse counsel from undertaking sufficient investigation of possible defenses to enable counsel to present an informed report and recommendation to his [or her] client.' [Citation.] This is especially so when, as here, the evidence available to counsel supports a mental defense and the defense allegedly insisted on by the client is uncorroborated or, indeed, contradicted in whole or in part by the available evidence. [Citation.] That counsel, as a plurality of this court have stated, may be compelled to yield to his [or her] client's right to insist on the presentation of a defense of his [or her] own choosing [citation] does not excuse him [or her] from his [or her] duty to investigate and research other defenses so as to make an informed recommendation to his [or her] client [citation]." (Id. at pp. 221-222.) The court therefore held that trial counsel had a duty to investigate potential mental health defenses, particularly where the tone of the defendant's confession caused trial counsel to have doubts about the defendant's mental state. (Id. at p. 223.)
2. Analysis
Petitioner's trial counsel in this situation decided to pursue a self-defense theory based on facts petitioner articulated that resulted in a "viable" self-defense claim. Our role is not to second-guess trial counsel's reasonable tactical decisions. (Kelly, supra, 1 Cal.4th at p. 520.) We understand that trial counsel handling criminal cases may be faced with limited time and resources, and sometimes limited viable defenses. We further acknowledge that the United States Supreme Court in Strickland recognized that trial counsel need not necessarily investigate every potential line of defense, depending on the statements and actions of the client. (Strickland, supra, 466 U.S. at p. 691.) Nonetheless, based on our Supreme Court's decisions in Saunders, Mozingo, and Ledesma, we conclude that petitioner's trial counsel was constitutionally ineffective in failing to more fully investigate mental health defenses, and that petitioner has demonstrated prejudice as a result of the deficiency with regard to his first degree murder conviction.
a. Trial counsel's failure to investigate potential mental health defenses constituted deficient performance.
Guided by our Supreme Court's decisions in Saunders, Mozingo, and Ledesma, we determine that California Supreme Court precedent supports that trial counsel here performed deficiently by not investigating potential mental health defenses more fully. All three decisions broadly hold that trial counsel in a murder case has a duty to investigate potential mental health defenses to enable counsel to make an informed recommendation to the client. Here, the record from the evidentiary hearing established that petitioner has a lengthy history of documented mental health issues, including delusions and auditory hallucinations, that worsened in the years leading up to the charged offenses. The record demonstrated that petitioner's family members informed trial counsel about these mental health issues. The record also established that neither trial counsel nor the defense investigator fully investigated petitioner's mental health issues apart from speaking with petitioner's family members and one or two mental health providers who offered little information. As the trial court found: "There is no question that [trial counsel] was on notice of petitioner's mental health issues, that they could be relevant at trial, and that [trial counsel] neither investigated beyond discussions with petitioner nor presented mental health defenses. The question is whether failure to do so (1) violated professional norms at the time and (2) caused prejudice to petitioner's case." The Saunders, Mozingo, and Ledesma decisions support the conclusion that the answer to the first question is yes.
Windham, the defense investigator, testified that he contacted a provider from Monterey County Behavioral Health before trial, and that this provider provided limited information about petitioner's mental health history. Trial counsel also testified that he believed he contacted at least one of the people for whom petitioner's mother provided contact information, but he did not recall who this person was and he testified that this person provided "just some stories about how [petitioner] had been suffering." It is not clear whether this person is the same provider that Windham recalled contacting.
The trial court's thorough ruling and the Attorney General on appeal both attempt to distinguish these three decisions on various bases. First, the trial court found Saunders, Mozingo, and Ledesma distinguishable because of petitioner's "informed decision to reject mental health defenses." However, Mozingo and Ledesma do not support distinguishing the decisions in this regard. While in Saunders, there was no indication the petitioner rejected a diminished capacity defense, Mozingo rejected the position "that a client's initial opposition should excuse counsel from undertaking sufficient investigation of possible defenses to enable counsel to present an informed report and recommendation to his [or her] client." (Mozingo, supra, 34 Cal.3d at p. 934 .) Similarly, the court in Ledesma held that trial counsel's failure to investigate mental health defenses was not excused "even if defendant had in fact insisted on the alibi defense from the very beginning and had as a consequence rejected the use of diminished capacity or any other 'mental defense' and refused to cooperate in developing such a defense ...." (Ledesma, supra, 43 Cal.3d at p. 221.)
Saunders, Mozingo, and Ledesma all discussed the possibility of the defendants raising a defense of diminished capacity, among other possible mental health defenses. (Saunders, supra, 2 Cal.3d at pp. 1048-1049; Mozingo, supra, 34 Cal.3d at pp. 931-934; Ledesma, supra, 43 Cal.3d at pp. 221-223.) "Diminished capacity was a judicially created concept. It allowed defendants to argue that because of mental infirmity, they lacked 'awareness of the obligation to act within the general body of laws regulating society,' and therefore were incapable of acting with malice. [Citations.]" (People v. Elmore (2014) 59 Cal.4th 121, 135 (Elmore).) The California Supreme Court recognized that the Legislature has "abolished the defense of diminished capacity." (Ibid.) The Attorney General does not argue that the abolishment of the diminished capacity defense renders Saunders, Mozingo, and Ledesma inapplicable, and we likewise conclude that the abolishment of the diminished capacity defense does not affect the applicability of these decisions from our Supreme Court. Saunders, Mozingo, and Ledesma all discussed diminished capacity as a potential mental health defense that could have been investigated and presented in those cases, but these decisions did not state that their holdings were limited to the applicability of this specific defense.
Generally, trial counsel retains responsibility for choosing the defense strategy. "A defendant does not have the right to present a defense of his [or her] own choosing, but merely the right to an adequate and competent defense. [Citation.] . . . 'When a defendant chooses to be represented by professional counsel, that counsel is "captain of the ship" and can make all but a few fundamental decisions for the defendant.' [Citation.]" (People v. Welch (1999) 20 Cal.4th 701, 728-729.) This court requested supplemental briefing on the question of whether trial counsel was permitted to present evidence at trial about petitioner's mental health issues over petitioner's objection. Petitioner asserted that trial counsel could have presented mental health defenses over petitioner's objection. The Attorney General agreed that trial counsel was permitted to do so, though the Attorney General argued trial counsel was not obligated to do so. Thus, trial counsel was not required to defer to petitioner's position regarding mental health defenses.
While trial counsel testified that petitioner articulated a viable theory of selfdefense, trial counsel also agreed that there were "problems" with this theory. Windham testified that the three witnesses to the stabbings he interviewed in the days leading up to trial did not provide information helpful for a self-defense theory. Trial counsel also testified that testimony at the preliminary hearing did not support a self-defense theory, and that he told petitioner that the expected testimony from prosecution witnesses would not support a claim of self-defense. Trial counsel also testified that he did not recall whether a pipe was recovered from the scene of the stabbings, or whether any physical evidence supported petitioner's self-defense account. Trial counsel testified that Windham's interviews with witnesses to the stabbings shortly before trial uncovered no evidence the victims were armed, no evidence showing the victims initiated an attack against petitioner, and no other information that would be useful to a defense of selfdefense at trial. Trial counsel agreed that there was no evidence apart from petitioner's statements showing that petitioner reasonably believed that immediate use of deadly force was necessary to defend against the imminent danger of great bodily injury or death, or that petitioner used no more force than was reasonably necessary to defend against the danger of great bodily injury or death. Thus, even if petitioner had testified, this defense presented challenges. While we do not second-guess trial counsel's decision to pursue what he characterized as a viable theory of self-defense, the duty to further investigate possible mental health defenses was particularly important where, as trial counsel acknowledged, a self-defense claim presented "problems." (See Saunders, supra, 2 Cal.3d at p. 1049 [counsel was ineffective for failing to investigate a diminished capacity defense "especially in view of the insubstantiality of the defense actually offered"]; Mozingo, supra, 34 Cal.3d at p. 934 [lack of support for the alibi defense offered at trial "should have induced defense counsel to investigate carefully all alternative theories of defense"]; Ledesma, supra, 43 Cal.3d at p. 222 [the duty to investigate mental health defenses "especially" applies where "the defense allegedly insisted on by the client is uncorroborated or, indeed, contradicted in whole or in part by the available evidence"].) Petitioner's expressed reluctance to testify presented additional challenges to a self-defense claim, making it more important for trial counsel to fully investigate possible mental health defenses. Trial counsel could have pursued a self-defense theory, but under the facts of this case, a reasonable trial counsel would have investigated potential mental health defenses in conjunction with a self-defense approach.
Additional aspects of this case demonstrate that petitioner's opposition to presenting mental health defenses did not excuse trial counsel from further investigating the matter. Trial counsel testified that presenting evidence as to petitioner's mental health would not be inconsistent with a claim of perfect self-defense, and that he could have pursued both self-defense and mental health defenses. As in Saunders, here "a defense based upon petitioner's mental condition was in no way inconsistent with the defense offered by counsel." (Saunders, supra, 2 Cal.3d at p. 1049.) Further, trial counsel could have further investigated potential mental health defenses without violating petitioner's opposition to his family becoming more involved in his case and his reluctance to talk about the stabbings or his mental state during the stabbings. For example, trial counsel could have contacted the providers petitioner's family members supplied contact information for or requested petitioner's mental health records, including records from petitioner's time in jail. In addition, counsel testified that petitioner's opposition to mental health defenses was based on a desire to minimize his time in hospitalization or confinement, but if counsel wanted to achieve petitioner's desire of minimizing his time in confinement, investigating mental health defenses was not inconsistent with this goal, particularly in light of the challenges associated with the only other strategy of self-defense. (See People v. Jones (1991) 53 Cal.3d 1115, 1140 (Jones) [trial counsel was not ineffective for arguing that defendant should be found guilty of lesser included offenses of voluntary manslaughter due to defendant's mental state instead of acceding to defendant's insistence on proclaiming his innocence; "[i]n view of the overwhelming evidence of guilt and the existence of a viable mental state defense," there was "no violation of defendant's right to make the 'fundamental' decisions regarding his defense."].) Trial counsel testified that he did not try to obtain petitioner's mental health records because "[a]t that time I just didn't think I was going to use them, so I didn't get them."" '[B]y its inherent nature, a mental defense is often beyond the client's understanding,' and consequently counsel must attempt to investigate the issue despite his [or her] client's objections, and thereafter inform and advise his [or her] client accordingly, leaving the ultimate decision to him [or her] [citation]." (Mozingo, supra, 34 Cal.3d at p. 933.) Petitioner would have had minimal ability to decide which defenses to pursue and which to forego without informed advice from his counsel, and counsel could not provide informed advice without investigating a category of defenses that had been presented to him. (See In re Long (2020) 10 Cal.5th 764, 777 (Long) [trial counsel was ineffective in not consulting a time of death expert where counsel believed such an expert would provide a timeframe too broad to be helpful to defense; without investigating this matter, trial counsel "was not in a position to make a reasonable decision as to which defense or defenses to focus on at trial."].)
Neither Windham nor trial counsel testified that their ability to further investigate petitioner's mental health issues was impacted by any lack of consent on petitioner's part to release of his mental health records.
Finally on the subject of petitioner's opposition to mental health defenses, trial counsel stated that he deferred to petitioner's desire not to present mental health defenses; however, petitioner also repeatedly stated his intention not to testify at trial and yet trial counsel continued to investigate a self-defense theory and continued to advise petitioner to testify to support such a defense. The decision whether to testify belongs to the client, and the defendant "may exercise the right to testify over the objection of, and contrary to the advice of, defense counsel. [Citations.]" (People v. Bradford (1997) 15 Cal.4th 1229, 1332.) Trial counsel could have continued to advise petitioner about testifying at trial (a matter within petitioner's authority), and trial counsel also could have further investigated potential mental health defenses (a matter within counsel's authority) despite petitioner's objections. (See Avila v. Galaza (9th Cir. 2002) 297 F.3d 911, 921 [trial counsel was ineffective for failing to investigate indications that the petitioner's brother was the shooter, because" 'going against the wishes of [the petitioner] and his family' . . . is a patently unreasonable basis not to investigate [the petitioner's brother's] involvement in the shooting."].) Thus, consistent with Saunders, Mozingo, and Ledesma, trial counsel had a duty in this case to more fully investigate potential mental health defenses even when petitioner expressed a desire to forego mental health defenses in favor of a self-defense theory.
The trial court also distinguished Mozingo and Ledesma on factual grounds. The trial court noted the client in Mozingo had been adjudged a mentally disordered sex offender and had been confined in mental health institutions for an extended period before the charged offenses, and the case was capital and trial counsel failed to introduce mitigating circumstances in the punishment phase. The trial court also observed that in Ledesma, trial counsel's deficient performance extended beyond failing to investigate mental health defenses, including gambling compulsively and doing little at trial to challenge the prosecution's case.
Saunders, Mozingo, and Ledesma were each based on their own facts. For example, in Saunders, counsel "made the decision not to raise the issue of diminished capacity wholly without the benefit of medical opinion in the matter" and also offered no evidence in mitigation at the penalty phase, while in Ledesma, counsel's deficiencies extended beyond a failure to investigate mental health defenses. (Saunders, supra, 2 Cal.3d at p. 1048; Ledesma, supra, 43 Cal.3d at pp. 196-197.) The Attorney General also notes that in Mozingo, trial counsel dismissed raising a diminished capacity defense because it was inconsistent with the defendant's denial of complicity in the crime. (Mozingo, supra, 34 Cal.3d at p. 932.) While each decision rests on its own facts, the broad principles outlined in Saunders, Mozingo, and Ledesma are not limited to the facts of those cases, and when those principles are applied to the instant case, they support the conclusion that trial counsel's performance was deficient. For example, Saunders does not state that defense counsel's duty to investigate is implicated only in cases where counsel makes the decision wholly without the benefit of medical opinion in the matter, and Ledesma does not state that a duty to investigate only arises in cases where defense counsel's performance is deficient in numerous ways. Mozingo's factual distinction actually supports the conclusion that trial counsel's performance in the instant case was deficient, because in Mozingo, counsel rejected mental health defenses because the defenses were inconsistent with the defendant's denial of complicity in the murder. (Mozingo, supra, 34 Cal.3d at p. 932.) Here, trial counsel acknowledged that presenting evidence of petitioner's mental health issues was not inconsistent with the defense's selfdefense claim. While the death sentence was adjudged in Saunders, Mozingo, and Ledesma (Saunders, supra, at p. 1035; Mozingo, supra, at p. 928; Ledesma, supra, at p. 176), nothing in the decisions demonstrates that their holdings were limited to counsel's duties in capital cases. Thus, we conclude that Saunders, Mozingo, and Ledesma remain applicable to the instant case and support that trial counsel had a duty to more fully investigate petitioner's potential mental health defenses.
Finally, the Attorney General attempts to distinguish the three California Supreme Court cases by arguing that trial counsel here actually did investigate petitioner's mental health issues. The Attorney General notes that trial counsel discussed petitioner's mental health issues with petitioner's family; Windham spoke with one provider who had little information on the subject; counsel may have spoken with another local provider about petitioner; and counsel reviewed petitioner's journal. Windham's notes also state that he left messages for several mental health providers for whom petitioner's relatives provided contact information.
However, we do not find Saunders, Mozingo, and Ledesma distinguishable on this basis. Saunders, Mozingo, and Ledesma all support that trial counsel in a murder case is required to do a more complete investigation than what trial counsel did here. Saunders held that trial counsel must conduct "substantial factual inquiry into the specifics of petitioner's mental condition." (Saunders, supra, 2 Cal.3d at p. 1048.) Mozingo held that trial counsel must undertake "sufficient investigation of possible defenses to enable counsel to present an informed report and recommendation to his [or her] client." (Mozingo, supra, 34 Cal.3d at p. 934.) Ledesma held that trial counsel must" '" 'investigate carefully all defenses of fact and of law that may be available to the defendant,'" '" and cited Mozingo's statement regarding the level of investigation trial counsel must conduct. (Ledesma, supra, 43 Cal.3d at p. 222.) Here, while trial counsel did take some steps to inquire into petitioner's mental health issues, trial counsel's actions did not rise to the level of a "substantial factual inquiry," "sufficient investigation of possible defenses to enable counsel to present an informed report and recommendation to his client," or" '" 'investigat[ing] carefully'" '" this matter. (Saunders, supra, at p. 1048; Mozingo, supra, at p. 934; Ledesma, supra, at p. 222.) The trial court concluded that there was "no question" trial counsel did not investigate mental health defenses beyond discussions with petitioner. At oral argument, petitioner's appellate counsel cited several actions trial counsel should have taken to investigate this matter but did not, such as obtaining petitioner's medical records, conducting formal interviews with petitioner's family members and friends familiar with his mental health history, documenting any information he found regarding potential mental health defenses, consulting with a mental health provider, and obtaining an expert to evaluate petitioner. In addition, the record demonstrates trial counsel did not take any information he did learn about petitioner's mental health issues and revisit the subject with petitioner so a decision informed by evidence developed in an investigation could be made as to whether to pursue any mental health defenses.
While trial counsel did have some awareness of petitioner's history of mental health issues, this did not excuse him from conducting a more complete investigation. In Saunders, Mozingo, and Ledesma, trial counsel learned some information about their clients' mental health issues before trial, but the California Supreme Court in each case held more complete investigation was necessary. (Saunders, supra, 2 Cal.3d at p. 1048; Mozingo, supra, 34 Cal.3d at p. 932; Ledesma, supra, 43 Cal.3d at pp. 194-195.) For example, in Ledesma, the California Supreme Court held that trial counsel's actions in interviewing the defendant and seeking the appointment of the psychiatrist did not excuse trial counsel from conducting a more complete investigation of potential mental health defenses. (Ledesma, supra, at p. 194.)
We recognize that a defense attorney's" 'duty to investigate does not force defense lawyers to scour the globe on the off chance something will turn up; reasonably diligent counsel may draw a line when they have good reason to think further investigation would be a waste.'" (In re Gay (2020) 8 Cal.5th 1059, 1083.) However, trial counsel can nonetheless be found ineffective where potentially helpful information "was discoverable with minimal effort." (Ibid.) Here, the evidentiary hearing record reveals that evidence about petitioner's mental health issues could have been obtained without great difficulty, particularly because petitioner's family supplied counsel and the defense investigator with information and would have been willing to provide more information if requested. If counsel had further investigated this matter, the record demonstrates counsel likely could have readily obtained information concerning potential mental health defenses. Thus, consistent with our Supreme Court's holdings in Saunders, Mozingo, and Ledesma, we conclude that any information trial counsel did preliminarily learn about petitioner's mental health issues did not excuse him from the obligation to conduct a more complete investigation.
Beyond the holdings of Saunders, Mozingo, and Ledesma, courts have broadly held that a trial counsel has a duty to investigate potential defenses before dismissing their use at trial. In People v. Corona (1978) 80 Cal.App.3d 684, the Court of Appeal set forth "general standards" to determine if trial counsel fulfilled his or her duty of effective representation, stating: "Fundamental among these is the duty of counsel to conduct careful factual and legal investigations and inquiries with a view to developing matters of defense in order that he [or she] may make informed decisions on his [or her] client's behalf, both at the pleading stage [citations], and at trial [citations]. If counsel's failure to undertake such careful inquiries and investigations of the facts or law results in withdrawing a crucial defense from the case, the defendant has not had the assistance to which he [or she] is entitled [citations]. [¶] The decision not to raise a defense, of course, may be fully justified on the basis that it was made deliberately as a matter of trial strategy or tactics. Such decision, whether wise or unwise, when viewed with benefit of hindsight, may not be second-guessed or disturbed by the reviewing court. However, even the tactical and strategic determinations of trial counsel must have some rational support founded on reasonable, sound, legal principles and fully developed facts. Therefore, when trial counsel fails to acquire facts necessary to a crucial defense or to follow the facts already in his [or her] possession or to develop facts to which his [or her] attention is called, or when he [or she] fails to do the requisite legal research to learn the applicable law, his [or her] failure to raise a defense or defenses which could have been established by making the aforestated requisite efforts cannot be justified by reference to trial strategy or tactics [citations]." (Id. at pp. 705-706, italics omitted.) Petitioner cites several other cases that contain similarly broad guidance about a trial counsel's duty to investigate potential defenses. (See, e.g., Douglas v. Woodford (9th Cir. 2003) 316 F.3d 1079, 1085 ["Trial counsel has a duty to investigate a defendant's mental state if there is evidence to suggest that the defendant is impaired"]; Seidel v. Merkle (9th Cir. 1998) 146 F.3d 750, 756 [trial counsel was ineffective where he "had both actual and constructive notice of [petitioner's] mental status" but "conducted no investigation to ascertain the extent or possible ramifications of his client's psychiatric impairment"; and thus "[c]ounsel's disregard for conspicuous pieces of evidence that pointed to a potentially fruitful trial strategy cannot be described as anything short of defective representation"]; People v. Cervantes (2017) 9 Cal.App.5th 569, 591 [trial counsel was ineffective in representing defendant on some charges because "[h]er minimal and ineffective communication with defense-retained experts caused her to make an uninformed decision in rejecting a theory of cognitive impairment as part of her voluntary intoxication defense"], disapproved in part on other grounds by People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 314-315.)
Saunders, Mozingo, and Ledesma all hold that trial counsel must be fully informed in a murder case about a client's potential mental health issues to make strategic decisions, consult with the client, and present possible defenses. That duty applied in the instant case. While petitioner articulated a theory of self-defense that trial counsel considered viable, trial counsel was required to more fully investigate potential mental health defenses, particularly given the severity of the charges petitioner faced. Trial counsel acknowledged that mental health defenses would not be inconsistent with a selfdefense claim, and nothing in the record demonstrates trial counsel could not investigate self-defense and mental health defenses simultaneously, even though petitioner proceeded to trial less than five months after the charged offenses. Trial counsel and Windham provided no testimony that they lacked the resources to pursue mental health defenses.
The trial court stated that trial counsel might have decided not to investigate mental health defenses because the prosecution might have had difficulty locating witnesses to the stabbing, and thus trial counsel might have believed it was in petitioner's interest to proceed to trial as quickly as possible. However, trial counsel never testified that this consideration existed or that it influenced his decision not to investigate mental health defenses.
In some cases, a trial counsel faced with limited time and resources might make a reasonable decision to pursue some potential defenses and forego others, particularly where the client insists on doing so. As our Supreme Court stated in In re Thomas (2006) 37 Cal.4th 1249, 1258 (Thomas): "In evaluating counsel's performance, we assess both the reasonableness of counsel's decisions and the reasonableness of the investigation that underlay each decision....' "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments."' [Citations.]" (See also People v. Geddes (1991) 1 Cal.App.4th 448, 454 ["for counsel to retain a psychiatrist to inform the defendant of facts he has already assumed to be true seems an academic exercise at best."].)" 'Surmounting Strickland's high bar is never an easy task,'" and "the standard for judging counsel's representation is a most deferential one." (Harrington v. Richter (2011) 562 U.S. 86, 105.) "[T]he question is not what the' "best lawyers would have done,'" nor' "even what most good lawyers would have done,"' but simply whether' "some reasonable lawyer"' could have acted, in the circumstances, as defense counsel acted in the case at bar. [Citations.]" (People v. Jones (2010) 186 Cal.App.4th 216, 235.)
Case law, including the decisions in Saunders, Mozingo, and Ledesma, does not require trial counsel to fully investigate every possible defense regardless of the time and effort involved or the prospects of success at trial resulting from an investigation. We apply Thomas's holding that, assessing for reasonableness in all the circumstances and applying a heavy measure of deference to counsel's judgments, trial counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. (Thomas, supra, 37 Cal.4th at p. 1258.) Under the facts of this particular case, applying guidance from our Supreme Court in Saunders, Mozingo, and Ledesma, we hold that trial counsel's performance in failing to further investigate mental health defenses fell below an objective standard of reasonableness under prevailing professional norms. (Strickland, supra, 466 U.S. at p. 688.)
b. Petitioner demonstrated prejudice as a result of the deficient performance.
To demonstrate prejudice, petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, supra, 466 U.S. at p. 694.) In the context of counsel's failure to investigate potential defenses, "[w]e examine what 'evidence counsel failed to discover and present in this case' and whether there is 'a reasonable probability that a competent attorney . . . would have introduced it' [citation], and then we address whether 'there is a reasonable probability that [the jury] would have returned' a different verdict if it 'had . . . been confronted with [that] evidence' [citation]." (Long, supra, 10 Cal.5th at p. 778.)
Applying these standards, we conclude that petitioner has demonstrated prejudice with regard to his conviction for first degree murder. Petitioner has demonstrated a reasonable probability that the result of the first degree murder count involving Long's death would have been different if trial counsel had investigated potential mental health defenses. A reasonable probability exists that evidence of petitioner's mental health issues would have negated the allegation that petitioner acted willfully, deliberately, and with premeditation in killing Long.
At the evidentiary hearing, trial counsel acknowledged that evidence that petitioner suffered from a mental health condition at the time of the charged offenses could have been relevant in various ways, including to potentially negate the elements of first degree murder that the murder was committed with premeditation and deliberation. Trial counsel's acknowledgement was appropriate, as evidence of mental health issues can be relevant to negate premeditation and deliberation. (See § 28, subd. (a) [evidence of a mental disease, defect, or disorder is admissible "on the issue of whether or not the accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged"].)
Petitioner had a history of delusional thoughts and auditory hallucinations, including thoughts that he had to protect himself or others from perceived threats. A reasonable probability exists that the jury would have concluded that such evidence, combined with the apparently unprovoked nature of the stabbings and a lack of any apparent motive for the killing, demonstrated that petitioner was guilty of a lesser offense than first degree murder. "[E]vidence of a hallucination--a perception with no objective reality-- . . . is admissible to negate deliberation and premeditation so as to reduce first degree murder to second degree murder." (People v. Padilla (2002) 103 Cal.App.4th 675, 677 (Padilla).) Evidence about petitioner's mental health issues likely would have prompted the trial court to give CALCRIM No. 3428 to the jury, an instruction that informs the jury that they may consider evidence of the defendant's mental disease, defect, or disorder "for the limited purpose of deciding whether, at the time of the charged crime, the defendant acted . . . with the intent or mental state required for that crime." In addition, if CALCRIM No. 627 had been given, it would have instructed the jury: "You may consider evidence of hallucinations, if any, in deciding whether the defendant acted with deliberation and premeditation." Misamore stated neither he nor Long said anything to petitioner to provoke the attacks, and he characterized petitioner as acting "psychotic" and like a "sociopath" during the stabbings. The evidence developed at the habeas hearing indicated petitioner may have attacked the victims based on some perceived threat or hallucination, though there was some lack of clarity concerning exactly what petitioner perceived and when this perception developed. Had evidence of petitioner's mental health issues been presented, a reasonable probability exists that the jury would have concluded that he did not act with premeditation and deliberation.
The trial court concluded that petitioner was not prejudiced by any deficient performance by his trial counsel because "at the time of trial there was no known evidence-not even hearsay-that petitioner was suffering from a mental health episode at the time of the stabbings." The trial court noted that petitioner told a woman after the stabbings that the victims" 'deserved to die,'" which the trial court stated "does not suggest any fear on petitioner's part." Therefore, the trial court concluded, "any evidence regarding [petitioner's] mental illness would have been properly excluded as without foundation or relevance and causing an undue consumption of time." However, Saunders, Mozingo, and Ledesma focus their prejudice analysis on the lack of informed decisionmaking leading up to trial, and as we have discussed, the lack of a more complete investigation into potential mental health issues caused petitioner to lack information to make decisions concerning trial strategy. In addition, the trial court's analysis assumes petitioner would not have testified about his mental health issues after the benefit of informed advice concerning mental health defenses. If petitioner had maintained his position regarding not testifying after receiving informed advice, we agree that trial counsel's options to present mental health defenses would have been limited, but the record does not demonstrate that all evidence regarding petitioner's mental health issues would have necessarily been excluded. Apart from petitioner's testimony, some evidence existed that petitioner was suffering from mental health issues at the time of the stabbings. Petitioner's journal entry from the day leading up to the stabbings about his fear that an "old woman" would try to kill him indicated delusions or a paranoid state.Petitioner's family provided declarations detailing how petitioner's mental health issues were growing worse in the time leading up to the charged offenses and that petitioner was not availing himself of treatment during this time, and petitioner's family members stated they were willing to testify on petitioner's behalf. A medical record entry dated about five weeks before the charged offenses stated petitioner "presented with significant mental health challenges including paranoia and a delusional thought pattern" and "highly recommended" petitioner obtain treatment, including medication, for his mental health issues. No evidence demonstrated petitioner obtained this treatment, and as Dr. Greene declared, this "type of decompensation was not going to remedy itself, especially not when Mr. Quiming was off of his medications and living on the streets." In addition, the prosecution's own witness, the survivor of the stabbings, stated that petitioner attacked without provocation, was "psychotic," and acted like a "sociopath."
The trial court stated that the journal entry "is generally coherent and generally uses proper grammar, spelling, and punctuation," and that "[n]o evidence was presented regarding whether the woman actually made threatening gestures or whether petitioner's perception was delusional." Regardless of the trial court's interpretation of the journal entry, the jury might have considered petitioner's recorded thoughts that an "old woman" was trying to kill him on the bus to be evidence of a mental health issue on petitioner's part that led him to commit the stabbings, particularly when petitioner did not record any actions by the woman that would have rationally caused such fear. The evidentiary hearing record demonstrated petitioner had a history of expressing a need to protect himself or others from perceived threats. Trial counsel also declared that he interpreted the journal entry as evidence of "delusional thoughts."
In such a situation, evidence of petitioner's mental health issues could be relevant and a foundation could potentially be established to admit such evidence, even if petitioner did not testify as to his mental state at the time of the stabbings.
On a related point, the trial court stated that it gave no weight to Dr. Greene's conclusions that petitioner was" 'likely suffering'" from a mental illness at the time of the charged offenses because this opinion "was not supported by statements of petitioner to [Dr.] Greene, and only petitioner can know if he was delusional at the time of the crime; anything else is speculation." Penal Code section 29 provides: "In 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, which include, but are not limited to, purpose, intent, knowledge, or malice aforethought, for the crimes charged. The question as to whether the defendant had or did not have the required mental states shall be decided by the trier of fact." Because petitioner did not wish to testify, any admissible opinion by Dr. Greene as to petitioner's mental state at the time of the charged offenses would be limited.
However, in a murder case, evidence of a defendant's mental health issues is admissible on the issue of whether the accused actually premeditated, deliberated, or harbored malice aforethought. (§ 28, subd. (a).) "An expert's opinion that a form of mental illness can lead to impulsive behavior is relevant to the existence vel non of the mental states of premeditation and deliberation regardless of whether the expert believed [the defendant] actually harbored those mental states at the time of the killing." (People v. Coddington (2000) 23 Cal.4th 529, 582-583, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Thus, "the defendant can call an expert to testify that he [or she] had a mental disorder or condition . . ., as long as that testimony tends to show that the defendant did or did not in actuality (as opposed to capacity) have the mental state (malice aforethought, premeditation, deliberation) required for a conviction of a specific intent crime . . . with which he [or she] is charged, except that the expert cannot offer the opinion that the defendant actually did, or did not, harbor the specific intent at issue. Put differently, sections 28 and 29 do not prevent the defendant from presenting expert testimony about any psychiatric or psychological diagnosis or mental condition he [or she] may have, or how that diagnosis or condition affected him [or her] at the time of the offense, as long as the expert does not cross the line and state an opinion that the defendant did or did not have the intent, or malice aforethought, or any other legal mental state required for conviction of the specific intent crime with which he [or she] is charged." (People v. Cortes (2011) 192 Cal.App.4th 873, 908 (Cortes).)
In this situation, the defense could have presented an expert such as Dr. Greene to testify "about any psychiatric or psychological diagnosis or mental condition [petitioner] may have, or how that diagnosis or condition affected him at the time of the offense[s], as long as the expert does not cross the line and state an opinion that [petitioner] did or did not have the intent, or malice aforethought, or any other legal mental state required for conviction of the specific intent crime[s] with which he is charged." (Cortes, supra, 192 Cal.App.4th at p. 908.) Dr. Greene's position in this regard was supported by reference to petitioner's medical records, petitioner's journal, correspondence from petitioner's family, and two in-person evaluations of petitioner. The defense potentially could have offered the opinion of an expert such as Dr. Greene concerning petitioner's mental health issues, in addition to other non-expert evidence the defense could potentially have presented, such as the observations from petitioner's family members about petitioner's declining mental health. Thus, evidence of petitioner's mental health issues could be relevant and a foundation could potentially be established for the admission of such evidence, even if petitioner was not going to testify about his mental health issues.
In ruling that petitioner was not prejudiced by any deficient performance by his trial counsel, the trial court also focused on what it saw as "conflicting statements" petitioner made after the charged offenses about why he committed the stabbings. Thus, the trial court concluded: "The convenience of suddenly remembering mental health symptoms after trial, yet refusing to declare them under penalty of perjury, or testify to them, renders petitioner's inconsistent hearsay statements less than credible." Despite the inconsistencies the trial court noted, the statements attributed to petitioner consistently conveyed that petitioner perceived some threat from Long and Misamore. To the extent that petitioner's statements reveal inconsistencies about the specific nature of the threat perceived, a reasonable probability exists that the jury would have viewed such inconsistent statements as further evidence that petitioner was experiencing significant mental health issues. Even excluding any consideration of statements petitioner made to others about his motivations for the stabbings, petitioner was apparently suffering from long-term, unresolved mental health issues and a reasonable probability exists that other evidence about petitioner's mental health issues would have resulted in a more favorable outcome for petitioner on the murder charge.
The trial court ruled, and the Attorney General now argues, that petitioner has not demonstrated prejudice regarding the murder charge because of the strength of the evidence of petitioner's guilt as to first degree murder, including evidence that petitioner repeatedly stabbed the victims, that he "brood[ed]" in between the time he asked for alcohol and the time of the stabbings, and his later statement that the victims" 'deserved to die.'" The Attorney General also notes that this court's opinion in petitioner's initial appeal stated: "There was no dispute that defendant stabbed Long, and there was overwhelming evidence supporting a finding that the stabbing was done with premeditation and deliberation." (People v. Quiming, supra, H043494 at p. 31.) However, this court's statement in petitioner's initial appeal was based on the appellate record as it existed at the time. The evidence presented at the habeas evidentiary hearing now indicates that petitioner experienced serious mental health issues leading up to the charged offenses.
The evidence at trial left no room for dispute that petitioner committed the stabbings. Instead, petitioner's mental state in committing the stabbings was the key issue disputed at trial. No rational motive was apparent for the stabbings; in fact, the surviving victim testified that petitioner acted without provocation. Petitioner made no statements before or during the crime that would have yielded insight as to whether he carried out the stabbings with deliberation and premeditation, and the statement he made to a woman afterward that he stabbed two people who" 'deserved to die'" could have been cast in a different light with evidence of petitioner's mental health issues, including petitioner's history of perceiving threats to himself or others. The prosecution argued that the nature of the attack, including the moments petitioner spent "brooding" between when he asked the victims for alcohol and when the stabbings occurred, demonstrated petitioner's willfulness, deliberation, and premeditation. However, the timing of petitioner's formation of his plan to stab the victims was unclear and a reasonable probability exists that the jury would have concluded that petitioner acted without premeditation and deliberation if presented with evidence of his mental health issues. Misamore also testified that petitioner's behavior in the moments leading up to the stabbings did not seem abnormal because "the homeless community is full of crazy." The fact that petitioner repeatedly stabbed Long - standing alone - does not necessarily demonstrate his guilt of first degree murder. (See People v. Anderson (1968) 70 Cal.2d 15, 24-25 ["It is well established that the brutality of a killing cannot in itself support a finding that the killer acted with premeditation and deliberation. 'If the evidence showed no more than the infliction of multiple acts of violence on the victim, it would not be sufficient to show that the killing was the result of careful thought and weighing of considerations.' [Citations.]"].) The evidence that petitioner carried out the stabbings was strong, but a reasonable probability exists that the evidence of petitioner's mental state in doing so would have been viewed differently if evidence about his mental health issues had been introduced. Thus, petitioner has met his burden of demonstrating prejudice. (Strickland, supra, 466 U.S. at p. 694.)
c. Remedy
Petitioner asks this court to "vacate petitioner's judgment of conviction" and "grant petitioner whatever alternative or further relief as may be appropriate in the interests of justice." We have determined that petitioner's trial counsel provided deficient representation by not fully investigating potential mental health defenses, and that petitioner was prejudiced by the deficient performance because a reasonable probability exists that evidence about petitioner's mental health issues would have led to a more favorable result for petitioner regarding his first degree murder conviction. However, this does not necessarily require this court to vacate petitioner's convictions in their entirety.
1. Petitioner has not demonstrated prejudice as a result of the deficient performance concerning count 2.
Petitioner has not demonstrated prejudice regarding his conviction for the attempted voluntary manslaughter of Misamore. Petitioner was charged with first degree attempted murder for the stabbing of Misamore, but the jury found petitioner guilty only of attempted voluntary manslaughter. As both parties acknowledge in supplemental briefing, attempted involuntary manslaughter is not a crime in California, and thus it is not reasonably probable petitioner would have been convicted of a lesser offense concerning this count. (People v. Johnson (1996) 51 Cal.App.4th 1329, 1332; People v. Brito (1991) 232 Cal.App.3d 316, 321; People v. Broussard (1977) 76 Cal.App.3d 193, 197.) Because there is no crime of attempted involuntary manslaughter, the Attorney General asserts that modification of count 2 is not appropriate. Petitioner contends he was prejudiced regarding this count because it is reasonably probable he would have been acquitted on this count had mental health defenses been further investigated and presented. Petitioner argues attempted voluntary manslaughter required proof of intent to kill, and that evidence of petitioner's mental illness would have been admissible to negate the specific intent to kill. "[I]ntent to kill is an element of the crime of attempted voluntary manslaughter." (People v. Montes (2003) 112 Cal.App.4th 1543, 1545.) However, petitioner does not sufficiently explain how evidence of his mental health might have impacted the jury in this regard. The jury convicted petitioner of the least severe offense possible regarding the stabbing of Misamore. Petitioner's actions at the time of the stabbings, his own statement after the stabbings that the two victims deserved to die, and his statements to family members about his motivations in stabbing the victims support that petitioner acted with intent to kill in the stabbings. While Misamore was not the primary target of petitioner's actions and sustained his injuries when he tried to stop the stabbing of Long, the jury heard evidence in this regard and nonetheless concluded, based on the instructions provided, that petitioner was guilty of attempted voluntary manslaughter concerning Misamore. Petitioner presented no evidence at the hearing on his habeas petition that would impact the jury's verdict regarding the stabbing of Misamore. Thus, there is no "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland, supra, 466 U.S. at p. 694.) Petitioner has not demonstrated" 'by a preponderance of substantial, credible evidence . . . that [he] suffered prejudice,'" concerning count 2 and he is not entitled to relief regarding this count. (Resendiz, supra, 25 Cal.4th at p. 249.)
2. It is appropriate to reduce the degree of the offense to second degree murder concerning count 1.
With regard to the first degree murder count, section 1260 provides: "The court may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed, and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial and may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances."" 'An appellate court is not restricted to the remedies of affirming or reversing a judgment. Where the prejudicial error goes only to the degree of the offense for which the defendant was convicted, the appellate court may reduce the conviction to a lesser degree and affirm the judgment as modified, thereby obviating the necessity for a retrial. [Citations.]' [Citation.]" (People v. Edwards (1985) 39 Cal.3d 107, 118.) In this situation, the reviewing court should preserve the option for the prosecution to retry the defendant on the original charges, should the prosecution so choose. (Ibid.) A court acting upon a petition for a writ of habeas corpus has the authority to "dispose of such party as the justice of the case may require ...." (§ 1484.) This statute "confers authority analogous to that which an appellate court exercises under section 1260 in modifying a judgment to reduce the degree of a crime. [Citation.]" (In re Bower (1985) 38 Cal.3d 865, 880.)
We requested supplemental briefing concerning whether it is appropriate for this court to modify the conviction for first degree murder (count 1) to a lesser degree and to provide the prosecution a specified of time in which to set the case for trial on the first degree murder charge. Both parties agree this court has the authority to take this action, but they disagree as to the proper modification of petitioner's first degree murder conviction to remedy any prejudice. The Attorney General asserts that, assuming trial counsel was ineffective, it is appropriate to modify petitioner's first degree murder conviction to second degree murder, because it is reasonably probable the jury would have returned this verdict had mental health defenses been further investigated and presented. In contrast, petitioner asserts it is reasonably probable that if mental health defenses had been further investigated and presented, he would have been convicted of either involuntary manslaughter or voluntary manslaughter, and thus this court should modify the first degree murder conviction to involuntary manslaughter. We conclude the record supports modifying petitioner's conviction for count 1 to second degree murder, because it is reasonably probable that if trial counsel had further investigated and presented mental health defenses, petitioner would have been convicted of this offense.
Petitioner does not argue in supplemental briefing that it is reasonably probable he would have been acquitted of the murder count or found not guilty by reason of insanity. Thus, we discuss only whether it is appropriate to reduce the degree of petitioner's conviction on count 1 to second degree murder, voluntary manslaughter, or involuntary manslaughter.
"Manslaughter is the unlawful killing of a human being without malice." (§ 192.) For purposes of the instant matter, manslaughter is of two kinds. Voluntary manslaughter is a killing "upon a sudden quarrel or heat of passion." (§ 192, subd. (a).) Involuntary manslaughter is a killing "in the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution or circumspection." (§ 192, subd. b).) "Manslaughter is an unlawful killing without malice, the element necessary for the greater offense of murder. Malice may arise when one kills, without legal justification or excuse, and with specific lethal intent or conscious indifference to the likelihood of death." (People v. Rios (2000) 23 Cal.4th 450, 454 (Rios).)
It is not reasonably probable that if mental health defenses had been investigated and presented, the jury would have found petitioner guilty of involuntary manslaughter. "Involuntary manslaughter is 'the unlawful killing of a human being without malice aforethought and without an intent to kill.' [Citation.] A verdict of involuntary manslaughter is warranted where the defendant demonstrates 'that because of his [or her] mental illness . . . he [or she] did not in fact form the intent unlawfully to kill (i.e., did not have malice aforethought).' [Citation.]" (People v. Rogers (2006) 39 Cal.4th 826, 884 (Rogers).) "When a person commits an unlawful killing but does not intend to kill and does not act with conscious disregard for human life, then the crime is involuntary manslaughter. [¶] The difference between other homicide offenses and involuntary manslaughter depends on whether the person was aware of the risk to life that his or her actions created and consciously disregarded that risk. An unlawful killing caused by a willful act done with full knowledge and awareness that the person is endangering the life of another, and done in conscious disregard of that risk, is voluntary manslaughter or murder. An unlawful killing resulting from a willful act committed without intent to kill and without conscious disregard of the risk to human life is involuntary manslaughter." (CALCRIM No. 580.)
Here, the evidence from petitioner's trial and the evidentiary hearing demonstrates that petitioner acted with full knowledge and awareness that he was endangering Long's life, and that petitioner acted either with intent to kill or in conscious disregard of that risk. Petitioner repeatedly stabbed Long in the chest and the armpit area. Moreover, he told a woman after the killing that Long" 'deserved to die.'" The evidence from the hearing demonstrates that petitioner suffered from auditory hallucinations, but the evidence about petitioner's mental health did not show that petitioner did not appreciate the danger to Long from repeatedly stabbing him. To the contrary, the nature and number of the stab wounds and petitioner's post-stabbing statement that Long and Misamore deserved to die demonstrate petitioner appreciated the danger inherent in the stabbings. The statements from petitioner's family members that petitioner stated he acted because he perceived some threat from Long and Misamore also support the conclusion that petitioner stabbed Long with the intent to kill or with conscious disregard for the risk to human life. It is reasonably probable the jury would not have convicted defendant of first degree murder if evidence of his mental health issues had been investigated and presented, but the evidence demonstrates defendant possessed malice sufficient for second degree murder despite his mental health issues. (See Rogers, supra, 39 Cal.4th at p. 867 ["The jury could have concluded the emotional, impulsive nature of the killing precluded a finding of premeditation and deliberation but that defendant nevertheless intended to kill."].)
Petitioner argues that evidence of his mental health issues could have been used to present a diminished actuality defense that would support a conviction for involuntary manslaughter. Under the doctrine of diminished actuality, a jury may "consider evidence of a mental disease, defect, or disorder solely for the purpose of determining whether [the defendant] 'actually premeditated, deliberated, harbored malice aforethought and/or intent to kill.'" (People v. Nelson (2016) 1 Cal.5th 513, 556.) However, if the prosecution establishes that the defendant acted with actual malice, the defendant is "not entitled . . . to use mental illness to reduce the offense from murder to manslaughter unless he [or she] could do so under an imperfect self-defense theory." (People v. Mejia-Lenares (2006) 135 Cal.App.4th 1437, 1452, fn. omitted (Mejia-Lenares.) Here, for reasons we explain below, it is not reasonably probable imperfect self-defense would succeed, and thus a diminished actuality defense would not benefit petitioner. The prosecution proved petitioner acted with malice aforethought in killing Long. The evidence presented about petitioner's mental state demonstrates that petitioner intended to kill or appreciated the risk to human life in stabbing Long, and petitioner's own statements after the fact support that he did, in fact, intend to kill Long. Thus, it is not reasonably probable evidence of petitioner's mental state would reduce his culpability to involuntary manslaughter.
Likewise, we conclude that it is not reasonably probable the jury would have convicted petitioner of voluntary manslaughter had mental health defenses been further investigated and presented."' "A defendant who commits an intentional and unlawful killing but who lacks malice is guilty of . . . voluntary manslaughter. [Citation.]" [Citation.]'" (Rios, supra, 23 Cal.4th at p. 460.) "When a killer intentionally but unlawfully kills in a sudden quarrel or heat of passion, the killer lacks malice and is guilty only of voluntary manslaughter." (People v. Lasko (2000) 23 Cal.4th 101, 104.)
"[T]his is also true of a killer who, acting with conscious disregard for life and knowing that the conduct endangers the life of another, unintentionally but unlawfully kills in a sudden quarrel or heat of passion." (Ibid.) As petitioner's jury was instructed, a defendant acts in a sudden quarrel or in the heat of passion if: "1. The defendant was provoked; [¶] 2. As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured (his/her) reasoning or judgment; [¶] AND [¶] 3. The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment." (CALCRIM No. 570.)
Here, the evidence about petitioner's mental health issues does not demonstrate that he acted in a sudden quarrel or in the heat of passion. Even assuming petitioner perceived that Long and/or Misamore provoked him, petitioner provided no evidence indicating that he acted under the influence of intense emotion that obscured his reasoning or judgment. Accepting the accounts from petitioner's family members about petitioner's statements at face value, these statements at most support that petitioner believed Long and Misamore were going to hurt an unnamed woman or women whom petitioner apparently had no prior interactions with. In addition, petitioner sat down and appeared to" 'brood[]'" on his interaction with Long and Misamore for about 10 minutes before he began stabbing Long. (People v. Quiming, supra, H043494 at p. 19.) This does not show petitioner was overcome by emotion. Petitioner's repeated stabbing of Long and Misamore, and his statements indicating his intent to kill Long and Misamore, also support that his killing was not unintentional. Thus, it is not reasonably probable that petitioner would have been found guilty of voluntary manslaughter had mental health defenses been further investigated and presented.
Petitioner nonetheless asserts that he might reasonably have been found guilty of voluntary manslaughter based on a claim of unreasonable, or imperfect, self-defense. "Imperfect self-defense . . . 'occurs when a defendant acts in the actual but unreasonable belief that he or she is in imminent danger of great bodily injury or death.' [Citation.] Imperfect self-defense reduces an intentional, unlawful killing to voluntary manslaughter, a lesser included offense of murder, by negating a defendant's malice. [Citation.]" (People v. Thomas (2023) 14 Cal.5th 327, 386.) "[N]ot every unreasonable belief will support a claim of imperfect self-defense but only one that, if reasonable, would support a claim of perfect self-defense." (People v. Valencia (2008) 43 Cal.4th 268, 288, fn. omitted.) "For either perfect or imperfect self-defense, the defendant's fear must be of imminent harm. [Citation.]" (People v. Lopez (2011) 199 Cal.App.4th 1297, 1305.)" 'Fear of future harm-no matter how great the fear and no matter how great the likelihood of the harm-will not suffice. The defendant's fear must be of imminent danger to life or great bodily injury." '[T]he peril must appear to the defendant as immediate and present and not prospective or even in the near future. An imminent peril is one that, from appearances, must be instantly dealt with.' [¶] . . ." . . .' [Citations.]" (People v. Manriquez (2005) 37 Cal.4th 547, 581.) Imperfect self-defense applies to defense of others: "[O]ne who kills in imperfect defense of others-in the actual but unreasonable belief he [or she] must defend another from imminent danger of death or great bodily injury-is guilty only of manslaughter." (People v. Randle (2005) 35 Cal.4th 987, 997, disapproved on another ground in People v. Chun (2009) 45 Cal.4th 1172, 1201.)
Here, it is not clear whether petitioner is alleging he could present a claim of imperfect self-defense based on some perceived threat to him, or a claim of imperfect defense of others based on a perceived threat to a woman or women. His reported statements to family members and trial counsel's testimony at the evidentiary hearing indicate he could have potentially sought to raise either type of claim. Either way, however, it is not reasonably probable that such a defense would successfully reduce his culpability to voluntary manslaughter. The evidence demonstrated petitioner suffered from auditory hallucinations in the time leading up to the stabbings, including hallucinations related to protecting himself or others from harm. However, the evidence presented did not demonstrate petitioner believed any threat to himself was of death or great bodily injury, or that the threat was imminent. Petitioner's trial counsel testified that petitioner articulated a set of facts that would form the basis for a viable self-defense claim in that he felt threatened by the victims and thought he was in danger of being robbed. However, petitioner did not testify to support this defense, and the testimony from Windham and trial counsel about the self-defense claim petitioner articulated lacked specific information to show petitioner perceived an imminent threat of death or great bodily injury to himself.
With regard to petitioner's statements about a perceived risk to a woman or women from Long and Misamore, the evidence again does not demonstrate that petitioner perceived any imminent risk of death or great bodily injury to such woman or women. Petitioner's aunt reported that petitioner "has since confided in me that he heard the victim say perverse things and thought that a woman or two women were going to be hurt when he reacted to the situation on the night of the crime." This letter noted that petitioner "is especially sensitive to women being abused due to incidents he has been exposed to in his family history," and that petitioner told his aunt "he heard a voice telling him not to ignore what was going on." Another letter from petitioner's sister to the trial court stated that petitioner told her "that he heard a voice told him he couldn[']t let Mr[.] Long do any more bad things. He was concerned that Mr[.] [L]ong was going to hurt a woman that was near them and said that Mr[.] Long was extremely vulgar and disrespectful toward her. He believed he was acting to defend a woman[']s life." However, despite the extensive habeas proceedings, petitioner has not demonstrated that any such threat he perceived was imminent. Although petitioner's sister relayed that petitioner believed he was acting to defend a woman's life, petitioner provided no evidence as to the specific threat he perceived from Long and Misamore in this regard. He has not specified the identity of the woman or women he believed to be at risk, what specific harm he believed might come to her or them, when that harm might occur, or the means through which the harm might occur. Petitioner's aunt first relayed that petitioner believed Long "said perverse things which he thought were targeted at a woman with a friend of the victim," and later that petitioner "heard the victim say perverse things and thought that a woman or two women were going to be hurt when he reacted to the situation on the night of the crime." It is not apparent from these statements what, if any physical threat petitioner believed was presented to the woman or women, let alone whether the threat was of death or great bodily injury or was imminent. In this situation, it is not reasonably probable that the jury would have found that imperfect self-defense applied to reduce petitioner's culpability to voluntary manslaughter.
In addition, "unreasonable self-defense, as a form of mistake of fact, has no application when the defendant's actions are entirely delusional." (Elmore, supra, 59 Cal.4th at pp. 136-137.) "Unreasonable self-defense was never intended to encompass reactions to threats that exist only in the defendant's mind." (Id. at p. 137.) "Persons operating under a delusion theoretically are insane since, because of their delusion, they do not know or understand the nature of their act or, if they do, they do not know that it is wrong. By contrast, persons operating under a mistake of fact are reasonable people who have simply made an unreasonable mistake. To allow a true delusion-a false belief with no foundation in fact-to form the basis of an unreasonable-mistake-of-fact defense erroneously mixes the concepts of a normally reasonable person making a genuine but unreasonable mistake of fact (a reasonable person doing an unreasonable thing), and an insane person." (Mejia-Lenares, supra, 135 Cal.App.4th at p. 1456.) Thus, "evidence of a hallucination--a perception with no objective reality--is inadmissible to negate malice so as to mitigate murder to voluntary manslaughter . . . ." (Padilla, supra, 103 Cal.App.4th at p. 677.) To the extent that petitioner is arguing that his mental health issues cause him to experience delusions or hallucinations about a threat that existed only in his mind, imperfect self-defense would not apply.
Therefore, we conclude that it is appropriate to modify petitioner's first degree murder conviction to second degree murder, because it is reasonably probable petitioner would have been convicted of this offense had mental health defenses been further investigated and presented. In our disposition below, we will vacate the judgment of conviction, and if the People do not elect to bring petitioner to trial within 60 days pursuant to section 1382, subdivision (a)(2) to prove first degree murder on count 1, we will order the trial court to enter a judgment reflecting a conviction for second degree murder on count 1 and attempted voluntary manslaughter for count 2 and to resentence petitioner accordingly under current law.
B. Competency to Stand Trial
Because we are modifying petitioner's conviction on count 1 and we are allowing the conviction on count 2 to stand, we address petitioner's contention that he was not competent to stand trial and that his trial counsel failed to investigate his competence and failed to request a competency hearing.
1. Legal Principles and Standard of Review
"A criminal trial of an incompetent person violates his or her federal due process rights. [Citation.] The state Constitution and section 1367 similarly preclude a mentally incompetent defendant's criminal trial or sentencing. [Citations.] A defendant is incompetent to stand trial if the defendant lacks' "sufficient present ability to consult with his [or her] lawyer with a reasonable degree of rational understanding . . . [or] a rational as well as factual understanding of the proceedings against him [or her]."' [Citations.]" (People v. Mickel (2016) 2 Cal.5th 181, 194-195 (Mickel).)
A person is mentally incompetent and thus may not be tried if the person, as a result of a mental health disorder or developmental disability, "is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner." (§ 1367, subd. (a).) "If counsel informs the court that he or she believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendant's mental competence is to be determined in a hearing which is held pursuant to Sections 1368.1 and 1369." (§ 1368, subd. (b).) "It shall be presumed that the defendant is mentally competent unless it is proved by a preponderance of the evidence that the defendant is mentally incompetent." (§ 1369, subd. (f).) "When the accused presents substantial evidence of incompetence, due process requires that the trial court conduct a full competency hearing. [Citation.] Evidence is 'substantial' if it raises a reasonable doubt about the defendant's competence to stand trial. [Citation.] The court's duty to conduct a competency hearing arises when such evidence is presented at any time 'prior to judgment.' [Citations.]" (Jones, supra, 53 Cal.3d at pp. 1152-1153.) "[E]vidence of mental illness alone is not sufficient to raise a doubt about a defendant's competence to stand trial. The question is whether defendant's mental illness interfered with his [or her] ability to understand the nature and purpose of the criminal proceedings or to communicate with his [or her] counsel about his [or her] defense. [Citations.] '[E]ven a history of serious mental illness does not necessarily constitute substantial evidence of incompetence that would require a court to declare a doubt . . . .' [Citation.]" (People v. Ghobrial (2018) 5 Cal.5th 250, 271 (Ghobrial).)
"Under section 1368, subdivision (a), a judge must state on the record any doubt that arises in [his or] her mind as to the mental competence of the defendant, and either seek defense counsel's opinion as to the defendant's mental competency, or appoint counsel if the defendant is unrepresented. The decision whether to order a competency hearing rests within the trial court's discretion, and may be disturbed upon appeal 'only where a doubt as to [mental competence] may be said to appear as a matter of law or where there is an abuse of discretion.' [Citation.] When the court is presented with 'substantial evidence of present mental incompetence,' however, the defendant is 'entitled to a section 1368 hearing as a matter of right.' [Citation.] On review, our inquiry is focused not on the subjective opinion of the trial judge, but rather on whether there was substantial evidence raising a reasonable doubt concerning the defendant's competence to stand trial. [Citation.] Evidence may be substantial even where it is contested or presented by the defense. [Citation.] A trial court reversibly errs if it fails to hold a competency hearing when one is required under the substantial evidence test. [Citation.]" (Mickel, supra, 2 Cal.5th at p. 195.)
2. Analysis
Petitioner asserts that his mental health issues rendered him incompetent to stand trial, contending that the evidence demonstrates he "was incapable during pretrial and trial proceedings of consulting with his attorney with a reasonable degree of rational understanding ...." He notes the nature of his mental health issues and the evidence indicating he was not being treated for these issues in the time leading up to his trial, and he asserts that in response to his mental health issues, he reverted to a coping mechanism of remaining silent with his attorney. As support for the position that his silence affected his competence to stand trial, petitioner cites statements petitioner's family members relayed from petitioner about his silence, trial counsel's notes about petitioner's lack of communication, petitioner's decision not to testify at trial, and Dr. Greene's opinion that petitioner was "incompetent to stand trial because he was unable to consult with his attorney with a reasonable degree of rational understanding." We conclude that petitioner has not presented substantial evidence raising a reasonable doubt concerning his competence to stand trial, and thus no error occurred in the petitioner's trial counsel not declaring a doubt as to petitioner's competency or in the trial court not conducting a competency hearing.
In this court's prior opinion, we concluded that the trial court did not err by failing to inquire into petitioner's mental competence prior to the sentencing hearing. This court stated: "Having reviewed the probation report, the letters from defendant's friends and family, and the trial court, we find no substantial evidence raising a doubt as to defendant's competence prior to the sentencing hearing. Although there was evidence that defendant had a long history of bizarre behavior and mental illness, nothing in the letters indicated that defendant lacked an 'understanding of the criminal proceedings against him' or lacked 'the ability to consult with counsel or otherwise assist' in his defense. [Citations.] Rather, the letters mainly showed 'generalized concerns' about defendant's mental state prior to and at the time of the stabbings. [Citation.]" (People v. Quiming, supra, H043494 at pp. 11-12.)
The evidence developed in the habeas proceedings does not alter this conclusion. Petitioner cites evidence concerning letters from his family that detail petitioner's history of mental health issues and statements attributed to petitioner that he remained silent with his counsel because voices told him to do so. However, at the time of this court's prior opinion regarding petitioner's competency to stand trial, petitioner had presented several of these letters from his family, including a letter from his aunt that asserted as follows: "She asserted that defendant believed he was 'hearing the voice of God who tells him what to do' but that defendant had not told his lawyer about hearing the voice, 'due to his paranoia and delusional belief system.' Defendant told her 'that his voices told him to be quiet and not tell his lawyer details of the case.'" (People v. Quiming, supra, H043494 at p. 7.) This court's prior opinion also noted that "[a]ccording to defendant's mother, defendant had remained silent during trial because he heard voices that told him to do so." (People v. Quiming, supra, H043494 at p. 9.) Despite this and other evidence presented about petitioner's mental health condition, this court concluded that petitioner was competent to stand trial. (People v. Quiming, supra, H043494 at p. 13.)
The evidence presented at the hearing on the petition supports this court's previous conclusion that petitioner was competent to stand trial. The declarations and testimony from petitioner's trial counsel demonstrate petitioner was able to understand the proceedings against him and participate in his defense. Trial counsel declared that petitioner had a "flat affect" during their meetings, but that petitioner "generally seemed to be able to track what I was telling him." Trial counsel's declaration acknowledged that his meetings with petitioner were "different than meetings with other clients," that "[t]here were times when Mr. Quiming did not appear engaged and did not appear to be in the 'right place' mentally," and that petitioner "was not forthcoming with information about the incident or about his mental state during the incident." However, trial counsel also declared that petitioner "was able to participate in conversations regarding his case," "was able to discuss potential defenses and potential outcomes of various scenarios," and "understood the consequences of an insanity defense[ ] as well as the potential sentence that he faced." Trial counsel also declared that "when we would talk, I felt [petitioner] had a factual and rational understanding of the crime and the proceedings." Trial counsel declared: "Prior to trial in this case Mr. Quiming had explained the events leading up to the stabbings. He articulated a factual scenario which made self-defense a viable theory on which to defend the case. Mr. Quiming described the incident that occurred and explained why his actions were justified. Mr. Quiming and I discussed the facts of the case, possible strengths and weaknesses of his proposed defense, and alternative defenses." Finally, trial counsel declared: "At no time did I believe that Mr. Quiming was unable to participate in his own defense. At no time did I believe that Mr. Quiming did not understand the proceedings. At no time did I believe that Mr. Quiming was incompetent to proceed."
While handwritten notes from petitioner's trial counsel indicate petitioner was reluctant to discuss the stabbings, trial counsel testified at the evidentiary hearing that petitioner articulated that he did not want to pursue a plea agreement for manslaughter or a not guilty by reason of insanity plea because petitioner did not like the idea of being confined or hospitalized for a long period. Counsel testified that petitioner articulated his desire not to testify. Trial counsel testified that he knew petitioner suffered from some form of mental illness (most likely bipolar schizophrenia), that he handled petitioner differently from other clients, and that petitioner appeared not to be in the" 'right place' mentally." However, while counsel testified it took time for petitioner to discuss anything about that night, trial counsel testified that over time petitioner talked more as he grew more comfortable, and petitioner articulated a set of facts that would form the basis for a self-defense claim. Trial counsel also testified that petitioner was able to voice his position on potential negotiated dispositions. Finally, counsel testified that he assessed petitioner to be competent to stand trial because petitioner expressed an understanding of the criminal proceedings, the roles of the participants in the proceedings, and the charges he was facing, and because petitioner was able to assist counsel in petitioner's defense. Trial counsel testified that if he believed petitioner met the criteria for raising a doubt as to his competency under section 1368, counsel would have declared a doubt.
Under these circumstances, we conclude petitioner has not presented substantial evidence raising a reasonable doubt concerning his competence to stand trial.
Petitioner's trial counsel - the person who worked with petitioner in the time leading up to trial - saw no reason to declare a doubt as to petitioner's competency. Petitioner was able to understand the proceedings and provide directions to his trial counsel in matters such as possible negotiated dispositions, a possible self-defense theory, and whether petitioner would testify at trial. While the letters and later declarations from petitioner's family members stated that petitioner made statements after trial about remaining silent with his counsel, the record in this matter demonstrates that petitioner did not remain silent with his counsel. Petitioner may initially have expressed a reluctance to discuss the stabbings with his attorney, but petitioner was ultimately able to articulate what occurred. The record does not reveal any information trial counsel was unable to procure from petitioner.
As the trial court concluded following the evidentiary hearing on the habeas petition: "A higher court already considered petitioner's competence, determining him to be competent at the time of trial. The evidence presented at the evidentiary hearing further supports that conclusion. Because petitioner was competent and presented himself as such, there was no reason to declare a doubt."
While it is undisputed that petitioner suffered from longstanding serious mental health issues, and that these issues apparently persisted leading up to trial," 'a history of serious mental illness does not necessarily constitute substantial evidence of incompetence that would require a court to declare a doubt ....' [Citation.]" (Ghobrial, supra, 5 Cal.5th at p. 271.) The evidence developed at the hearing demonstrates petitioner did not lack"' "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding . . . [or] a rational as well as factual understanding of the proceedings against him," '" and thus he was competent to stand trial. (Mickel, supra, 2 Cal.5th at pp. 194-195.) As such, the original trial court did not abuse its discretion in failing to order a competency hearing regarding petitioner, as substantial evidence does not exist that petitioner was incompetent to stand trial. (Id. at p. 195.)
Because we determine that petitioner has not presented substantial evidence of incompetence, trial counsel was not ineffective for failing to investigate petitioner's mental competence and for failing to request a competency hearing.
C. Conclusion
Petitioner's trial counsel's performance was deficient in failing to further investigate mental health defenses. This deficient performance prejudiced petitioner regarding petitioner's conviction of first degree murder. We remedy this prejudice by vacating the judgment of conviction, and if the People do not elect to bring petitioner to trial within 60 days pursuant to section 1382, subdivision (a)(2), we order the trial court to enter a judgment reflecting a conviction for second degree murder on count 1 and attempted voluntary manslaughter on count 2 and to resentence petitioner accordingly under current law. Petitioner has not presented substantial evidence that he was incompetent to stand trial, and his trial counsel therefore was not ineffective for failing to investigate petitioner's mental competence and for failing to request a competency hearing.
IV. DISPOSITION
The judgment of conviction is vacated as to the first degree murder count (Pen. Code, § 187, subd. (a); count 1), and the matter is remanded to the Superior Court of Monterey County. Upon issuance of the remittitur, the clerk shall remit a certified copy of this opinion to the superior court for filing, and respondent shall serve another copy thereof on the prosecuting attorney in conformity with Penal Code section 1382, subdivision (a)(2). If the People do not elect to bring petitioner to trial on count 1 within 60 days after service pursuant to Penal Code section 1382, subdivision (a)(2), the trial court shall enter a judgment reflecting a conviction for second degree murder on count 1 and attempted voluntary manslaughter on count 2 and shall resentence petitioner accordingly under current law. (See Pen. Code, § 1484; In re Bower (1985) 38 Cal.3d 865, 880.)
As required by statute, the clerk of this court is directed to forward a copy of this opinion to the California State Bar upon the issuance of the remittitur, and the clerk of this court is directed to notify the attorney involved that the matter has been referred to the California State Bar. (Bus. &Prof. Code, § 6086.7, subds. (a)(2) &(b).)
WE CONCUR: GROVER, J. WILSON, J.