Opinion
NOT TO BE PUBLISHED
PETITION for Writ of Habeas Corpus. Bob S. Bowers, Judge. Writ denied. Los Angeles County Super. Ct. No. BA239957
Meredith J. Watts for Defendant and Petitioner.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc E. Turchin and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.
COOPER, P. J.
Petitioner seeks relief by way of habeas corpus following his conviction for murder, attempted murder and related special findings. We deny the writ.
The Statement of Facts is taken from the unpublished opinion of this court in petitioner’s direct appeal from the judgment of conviction. It is repeated here without significant modification.
At the time of the events at issue in this case, Petitioner and Rosa Rivas had been married for approximately 20 years and they had four children. In 1994, Rosa came from El Salvador to join Petitioner and raise their children together. Over the years, petitioner had affairs with other women and was violent with Rosa. In July of 2002, petitioner was violent towards Rosa and one of their daughters, so Rosa began sleeping in a separate room. Petitioner agreed at one point to give Rosa a divorce, but then changed his mind. Petitioner underwent psychological counseling on several occasions.
In November 2002, Rosa moved out, taking the two daughters, and left one teenage son with petitioner. Although they were separated, petitioner sometimes gave her a ride to work or picked her up from work, especially when they had appointments for physical therapy. Petitioner often asked Rosa to move back to him and bring the family back together, but Rosa always declined and told petitioner she no longer had feelings for him. By this time, Rosa had also started dating Pedro Chavez, a co-worker. On one occasion petitioner saw the two together at a bus stop.
On the morning of December 4, 2002, Rosa and her seven-year-old daughter were on the way to the bus stop to go to school and work when petitioner approached and offered to give them a ride. Although surprised to see him, Rosa went willingly and they dropped their daughter at school. Petitioner then drove Rosa to her job at “Joy Fusion” in Los Angeles. Petitioner was visibly upset. When they arrived, petitioner again implored Rosa to come back to him and bring the family back together. Petitioner told her that he did not want to be alone during Christmas. He became angry when Rosa again declined. Rosa told him no, that she did not love him anymore, and felt hurt by him. Rosa then went into work, as she was already late.
Petitioner was to pick Rosa up at 3:30 that afternoon to take her to a physical therapy appointment. At 3:30, she was standing at her work station, cleaning her machine, when she heard a shot. When she looked up, she saw her husband walking toward her. First he hugged her with his left arm, then pointed the gun to her stomach and shot her. He then turned and walked away, throwing the gun down as he went. His face looked “different; like angry.”
The first shot occurred when petitioner entered Joy Fusion, carrying a loaded five-shot revolver under a towel, walked up to Chavez and fired a single shot into his head. Chavez died at the scene a few minutes later. Rosa was taken to the hospital, where she was treated for her gunshot wound and released two days later. The emergency room doctor testified that Mrs. Rivas was shot through the lower left quadrant of her torso. The bullet did not damage any of the organs present in that area, and was a “through and through” injury. At the time of her testimony, Rosa still had numbness to her hip area, but did not testify to any lasting pain or disability.
Mrs. Rivas testified that her husband had gone for psychological counseling several times in connection with an asylum application “because of the war” in El Salvador. On one occasion, she went along with him.
PROCEDURAL HISTORY
Rivas was convicted in a court trial of murder (Count 1, Pen. Code §187, subd. (a)) and willful, deliberate, premeditated attempted murder (Count 2, §§664/187, subd. (a).) The court found the allegations to be true that petitioner used a firearm (§12022.53, subds. (b), (c), & (d); 12022.5, subd. (a)(1)) and caused great bodily injury (§12022.7, subd. (e).) Petitioner was sentenced to state prison for life with the possibility of parole, plus 75 years to life. Petitioner filed a timely appeal from his conviction.
All further undesignated statutory references are to the Penal Code.
In a Supplemental Opening Brief, filed on March 30, 2005, Petitioner added the argument that the “trial court erred in excluding his proffered ‘mental state’ evidence of post traumatic stress disorder.” Trial counsel described the defense as that “[Petitioner] suffers from a mental disorder such that he could not form malice aforethought and therefore could not have had the necessary intent to kill required to prove first degree murder of Pedro Chavez and attempted murder of Rosa Rivas.” The offer of proof was that petitioner’s brother and cousin would testify to the effects of trauma upon his life and a consulting psychiatrist “would testify about his evaluation that petitioner suffers from chronic post-traumatic stress disorder . . . and that this condition could have affected his ability to form the necessary mental states.” The traumatic event occurred in El Salvador when petitioner and all his male relatives were taken into the jungle and shot. Petitioner was between 15 and 17 years old at the time and was the only survivor. On May 24, 2005, petitioner filed the present Petition for Writ of Habeas Corpus based on alleged ineffective assistance of counsel. The contentions in the petition are that: “1) [t]rial counsel’s tactical decision to present only one defense removed other meritorious defenses from consideration, and the tactical decision constituted ineffective assistance; 2) counsel failed to properly investigate and present his chosen “mental state” defense, and failed completely to investigate ‘heat of passion’ and ‘unreasonable self defense’ defenses to first degree murder and attempted murder; 3) counsel argued against [Petitioner’s] interest by affirmatively telling the court that he had no defense and making unauthorized admissions in closing argument; [and] 4) counsel’s general approach to the presentation of a defense in this court trial was so ineffectual and negligent as to constitute a breakdown of the adversarial system.”
On June 24, 2005, petitioner filed a multi-part motion requesting various things, including: to consolidate the appeal and the habeas petition; ordering the Attorney General to respond to petitioner’s supplemental opening brief, that oral argument on the consolidated matters be continued. Initially, this court granted the motion to consolidate the habeas petition with petitioner’s appeal.
On July 7, 2005, respondent filed an answering brief to petitioner’s supplemental brief. In that brief, respondent noted in a footnote that “(u)ntil this Court orders respondent to file an informal response or issues an order to show cause under Rules 60 or 4.551 of the California Rules of Court, respondent will not respond to the claim raised in the habeas corpus petition.”
On July 22, 2005, petitioner filed a motion to this court to approve the expenditure of funds to have petitioner examined by Dr. Ricardo Weinstein, to either continue the oral argument to allow the experts declaration to be added to the habeas exhibits or to “unconsolidate” the appeal and the habeas for the same reason. This court denied the motion. On August 30, 2005, petitioner filed a motion for reconsideration of the denial of the motion for the expenditure of additional funds for Dr. Weinstein. In the reconsideration motion, petitioner stated: “a primary consideration for the lower court in denying trial counsel’s efforts to present a PTSD mental state defense was that there was no offer of proof presented by trial counsel that Mr. Rivas suffered from symptoms of PTSD in the intervening twenty-some years since the massacre of his relatives and his shooting. Unfortunately, when trial counsel was given a chance ‘to fill in those blanks,’ he failed to do much at all. He submitted nothing in writing, although his second oral offer of proof was somewhat more precise than the first.” A declaration by Dr. Weinstein indicated that he was qualified to give an opinion in this area, but could not do so without an opportunity to conduct a “comprehensive evaluation.” On August 30, 2005, petitioner filed a Supplement to Petition for Writ of Habeas Corpus which contained the declarations of: Jesse Basbaum, defense investigator; appellate counsel; Dr. Ricardo Weinstein; and petitioner.
On October 14, 2005, on its own motion, this court ordered that the order joining the appeal and the petition for writ of habeas corpus be vacated. The parties were given 30 days to file any supplemental materials in the habeas proceeding.
On October 19, 2005, this court granted petitioner’s motion for reconsideration of motion for appointment of expert and authorized the examination of petitioner by Dr. Weinstein for post traumatic stress disorder. The motion also authorized additional funds for the expert witness and the filing of a supplemental brief.
Given the status of the record, this court felt that the appointment of an expert may have been necessary for appellate counsel to fully prepare and present the issues to be considered in connection with the petition for habeas corpus. Consequently we granted Petitioner’s motion for appointment of an expert on post traumatic stress disorder.
On October 25, 2005, this court issued its opinion affirming the judgment of the trial court.
People v. Rivas (Oct. 25, 2005, B171758, nonpublished opinion), review denied January 04, 2006.
On January 20, 2006, petitioner filed a Supplemental Letter Brief to the Petition for Writ of Habeas Corpus. The Supplemental Brief attached a letter from Dr. Weinstein to appellate counsel reporting on his interview and testing of Mr. Rivas. The letter contains Dr. Weinstein’s conclusions that “Mr. Rivas suffered undiagnosed and untreated long term psychiatric and psychological problems that interfered with his daily functioning. Dr. Weinstein’s conclusions were:
“Mr. Rivas is an individual with very limited cognitive abilities. He suffers from chronic post-traumatic stress disorder and chronic depression. The medical records reviewed indicate that he has been diagnosed with a major depressive disorder with psychotic symptoms for which he received psychotropic medication.
“It is my professional opinion to a high degree of psychological certainty that an individual with the cognitive limitations and emotional problems that Mr. Rivas exhibits is likely to lack the capacity to act with the requisite malice and fully premeditate an act to the degree that it would constitute first degree murder. From the records reviewed it is apparent that none of his cognitive and psychological limitations were properly explored prior to the trial in which he was convicted and that none of this information was properly presented to the trier of fact.”
After receipt of this supplemental letter brief, we requested an informal response from respondent. On May 17, 2007, the respondent’s filed an Informal Response to Petition for Writ of Habeas Corpus. In its response, respondent argues that petitioner failed to establish a prima facie case of ineffective assistance of counsel. Respondent contends that petitioner failed to present his case because there is no evidence that his trial counsel failed to thoroughly investigate a possible mental defense.
On June 4, 2007, petitioner filed a letter response to the court indicating that he was willing to file a formal reply. This court concluded no additional briefing was necessary.
PETITIONER’S CONTENTIONS
According to petitioner, trial counsel failed in several different respects to deliver constitutionally effective assistance. In specific, “(1) [t]rial counsel’s tactical decision to present only one defense removed other meritorious defenses from consideration, and the tactical decision constituted ineffective assistance; (2) counsel failed to properly investigate and present his chosen ‘mental state’ defense, and failed completely to investigate and present ‘heat of passion’ and ‘unreasonable self defense’ defenses to first degree murder and attempted murder; (3) counsel argued against appellant’s interest by affirmatively telling the court he had no defense and making unauthorized admissions in closing; [and] (4) counsel’s general approach to the presentation of a defense in this court trial was so ineffectual and negligent as to constitute a breakdown of the adversarial system.”
DISCUSSION
Ineffective Assistance of Counsel - General Principles
Because the essence of petitioner’s contentions is ineffective assistance of counsel, we shall begin with an examination of the general principles of law which apply to this area. We start with the accepted principle that a criminal defendant has the right to the reasonably competent assistance of an attorney acting as his diligent, conscientious advocate. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; Strickland v. Washington (1984) 466 U.S. 668 (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 215 (Ledesma).) A claim of ineffective assistance of counsel has two components: “‘First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’ [Citation.] [¶] To establish ineffectiveness, a ‘defendant must show that counsel’s representation fell below an objective standard of reasonableness.’ [Citation.] To establish prejudice he ‘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.’ [Citation.]” (Williams v. Taylor (2000) 529 U.S. 362, 390-391; see also In re Resendiz (2001)25 Cal.4th 230, 239, 248-254; In re Alvernaz (1992)2 Cal.4th 924, 934 (Alvernaz); People v. Cummings (1993) 4 Cal.4th 1233.)
Prejudice can be shown when counsel’s acts or omissions resulted in the withdrawal of a potentially meritorious defense or that there is a reasonable probability the result would have been different in the absence of the alleged ineffectiveness. (Strickland, supra, 466 U.S.atp. 694; People v. McPeters (1992) 2 Cal.4th 1148, 1187.) If the defendant does not carry his or her burden of showing prejudice, a reviewing court may reject the claim without determining whether counsel’s performance was deficient. (People v. Kipp (1998) 18 Cal.4th 349, 366; Alvernaz, supra, 2 Cal.4th at p. 945.)
“[T]he burden of proof that the defendant must meet in order to establish his entitlement to relief on an ineffective-assistance claim is preponderance of the evidence.” (Ledesma, supra, 43 Cal.3d at p. 218.) “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. ‘For purposes of collateral attack, all presumptions favor the truth, accuracy, and fairness of the conviction and sentence; defendant thus must undertake the burden of overturning them.’” (People v. Duval (1995) 9 Cal.4th 464, 474, italics omitted.) Furthermore, we engage in a presumption, which it is defendant’s burden to overcome, that trial counsel’s performance comes within the wide range of reasonable professional assistance and that his actions were a matter of sound trial strategy. (Strickland, supra, 466 U.S.at pp. 689-690; People v. Lewis (1990) 50 Cal.3d 262, 288.) Appellate courts “will not view counsel’s actions through ‘the distorting lens of hindsight.’ [Citations.] Rather, under the rule of contemporary assessment, an attorney’s actions must be examined according to what was known and reasonable at the time the attorney made his choices. [Citations.]” (Hendricks v. Calderon (9th Cir. 1995) 70 F.3d 1032, 1036.)
Counsel has the duty to conduct whatever investigation is necessary to allow him to competently prepare all aspects of a defendant’s case. This would include “an obligation to conduct an investigation which will allow a determination of what sort of experts to consult. Once that determination has been made, counsel must present those experts with information relevant to the conclusion of the expert.” (Caro v. Calderon (9th Cir. 1999) 165 F.3d 1223, 1226.) As a general rule “[i]n order to render reasonably competent assistance, a criminal defense attorney should . . . explore the factual bases for defenses that may be available to the defendant, and otherwise pursue diligently those leads indicating the existence of evidence favorable to the defense. [Citations.]” (In re Neely (1993) 6 Cal.4th 901, 919.)
Defense of Mental disease, defect or disorder
Under California law, where evidence is introduced at trial that a defendant was suffering from a mental disease, defect, or disorder, the jury is entitled to consider that evidence in determining whether the defendant actually had the mental state necessary for first degree murder. Sections 28 and 29 specifically permit introduction of this evidence when relevant to whether the defendant actually formed the requisite mental state for the charged offense. Section 28, subdivision (a), provides that evidence of mental disease, defect, or disorder is not admissible “to show or negate the capacity to form any mental state,” but is admissible solely on the issue whether the accused “actually formed a required specific intent . . . when a specific intent crime is charged.” (Italics added.) Section 29 also limits the admissibility of evidence of a defendant’s mental state: “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.” (See People v. Coddington (2000) 23 Cal.4th 529, 582 (Coddington).)
The Legislature has abolished the doctrine of diminished capacity. (People v. Anderson (2002) 28 Cal.4th 767, rehg. den.) Amendments to Penal Code eliminating diminished capacity defense did not abolish doctrine of imperfect self-defense. (In re Christian S. (1994) 7 Cal.4th 768, rehg. den.)
“An expert’s opinion that a form of mental illness can lead to impulsive behavior is relevant to the existence vel non of the [requisite] mental states . . . regardless of whether the expert believed [the defendant] actually harbored those mental states at the time of [the offense].” (Coddington, supra, 23 Cal.4th at pp. 582-583.) Sections 28 and 29 therefore allow a defendant to introduce evidence to negate generally the requisite mental state, but preclude an expert opinion that the element was not in fact present. (Id. at p. 583.) The result is that an expert at the guilt phase cannot offer an opinion on the ultimate question of whether the defendant had the capacity to form the intent required for the crime, or whether the defendant actually did form the requisite intent. (People v. McFarland (2000) 78 Cal.App.4th 489, 496; People v. Smithey (1999) 20 Cal.4th 936, 960-961; Coddington, supra, 23 Cal.4th at p. 582; People v. Vieira (2005) 35 Cal.4th 264.)
Applying these rules to petitioner’s case, relevant evidence regarding petitioner’s mental condition would have been admissible at trial. Assuming testimony such as that offered by Dr. Weinstein had been available, it could have been offered by the defense. The next question is therefore, whether trial counsel conducted an adequate investigation of this potential defense and what reason, if any, could be offered for the failure to present the defense. Lastly, assuming the failure to present this defense was ineffective assistance of counsel, was this error prejudicial.
Petitioner’s Mental State/Post Traumatic Stress Disorder
As noted above, the primary claim of ineffective assistance of counsel in this case relates to the investigation, development and presentation of a Post Traumatic Stress Disorder (PTSD) defense. To evaluate this claim we first investigate the efforts of trial counsel. The record shows that trial counsel took the following steps regarding developing a PTSD defense for petitioner. On September 8, 2003, trial counsel informed the trial court that he had obtained the services of a psychiatrist, Dr. Stephen Wilson, who was to evaluate petitioner in custody in order to attempt to prepare a mental state defense involving PTSD. We surmise that trial counsel was not satisfied with Dr. Wilson’s services and/or conclusions, because on September 8, 2003, he asked the court to appoint Dr. Hy Malinek, a second psychiatrist, to evaluate petitioner. Counsel informed the court that he had located a Spanish speaking doctor who could evaluate petitioner in two meetings for $2,000.00. Trial counsel indicted to the court that the doctor’s report would take approximately six weeks to prepare. The trial court agreed to approve the funds and continued the case for six weeks.
PTSD is a recognized mental disorder. (See, e.g., People v. Weaver (2001) 26 Cal.4th 876, 940; People v. Nesler (1997) 16 Cal.4th 561, 568.) “Expert testimony on BWS [Battered Woman Syndrome] and PTSD is routinely admitted in criminal trials in California and other states and no one suggests they are not recognized psychiatric conditions. [Citations.]” (Doe v. Superior Court (1995) 39 Cal.App.4th 538, 541, fn. 2.)
November 10, 2003 was day 7 of 10 for trial. On that date, both sides raised Evidence Code section 402 issues to the admissibility of mental state evidence. The prosecution filed a formal motion in limine to exclude defense evidence of post traumatic stress syndrome. The motion presumed that the evidence in support of the defense was to be offered through the testimony of Dr. Wilson, the first expert, who had interviewed petitioner on May 2, 2003. Defense counsel did not submit any written authorities in connection with the hearing on the motion in limine. The trial court ordered counsel to prepare a written motion and continued the case to November 13, 2003 for jury trial and continued discussion of the evidence issues.
A copy of Dr. Wilson’s 11-page report was attached to the motion.
There is no mention in the record of or further reference to any report from the second psychiatrist, Dr. Malinek. Petitioner’s Supplemental Petition states that “Dr. Malinek’s participation was limited to advice that he would not support counsel’s theory” regarding PTSD.
The discussion of the Evidence Code section 402 issues began on November 12, 2003. During the discussion, trial counsel argued that petitioner suffered from a mental disorder or disease such that he could not form malice or intent to kill. Defense counsel described to the court details about petitioner’s childhood in El Salvador, including when petitioner saw family members shot and killed. Defense counsel stated that Dr. Wilson would testify “essentially” that as result of PTSD, petitioner could not have formed the intent to kill or malice and therefore the jury should be allowed to consider manslaughter. In pertinent part, Dr. Wilson’s report stated:
“In my opinion this is a crime of passion and Mr. Rivas, by other witness’s accounts, was also quite depressed at the time, indeed, pleading with his wife to return and crying in her presence and a notation from their 16-year-old son of how he was depressed and crying as well. [¶] Complicating the picture is the defendant’s own history of witnessing his father, cousins and uncle massacred in El Salvador when he himself was a young man of age 18. It is clear that this traumatized him and, according to him, he and his wife did go for some counseling some time ago concerning this.”
Respondent’s position was that Dr. Wilson’s report did not support counsel’s oral offer of proof and his testimony would be irrelevant.
The trial court stated that it had reviewed the prosecutor’s motion, the doctor’s report, and the case of People v. McGowan and would not give requested instruction CALJIC 3.32 (Evidence of Mental Disease – Received for Limited Purpose) or allow reference to the massacre incident in El Salvador. The trial court indicated it had read the prosecutor’s motion to exclude the evidence and stated that it did not believe any testimony was necessary. The court also stated that Dr. Wilson’s report failed to demonstrate that petitioner suffered from any mental problems and failed to explain PTSD.
The trial court’s ruling in this regard was a ground in petitioner’s appeal. On this issue we held: “The trial court found, and we agree, that the proposed testimony of Dr. Wilson did not add any additional admissible information for the jury. Dr. Wilson did not render an opinion as to Mr. Rivas’ state of mind and did not give a diagnosis of PTSD. Given the content of the report and any testimony which might be based on those observations, the trial court did not err in the exclusion of this evidence.
Defense counsel stated on the record that he agreed Dr. Wilson’s report was insufficient on the PTSD defense, but blamed it on insufficient expert funds and the fact that Dr. Wilson was a “panel doctor.” The trial court indicated that it had read Dr. Wilson’s report and disallowed “at this point” the mental defense based on PTSD.
There is no evidence that Dr. Wilson did not have sufficient expertise to diagnose PTSD. Dr. Wilson rendered his professional opinion; it simply did not support the theory that PTSD would provide petitioner a defense in this case. Attorneys are entitled to rely on the opinions of mental health experts and have no duty to investigate independently of a request for information from an expert. (Hendricks v. Calderon (1995) 70 F.3d at 1038, 1039.)
At the conclusion of this hearing, petitioner and his counsel waived the right to a jury trial and agreed to a court trial; which began immediately after the hearing. On November 26, 2003, the trial court found petitioner guilty of all charges and allegations.
Discussion re Ineffective Assistance of Counsel re Mental Defense
We conclude that petitioner has not carried his burden of showing inadequate performance and find no ineffective assistance of counsel regarding the PTSD defense issues. Petitioner’s trial “counsel did far more than a mere cursory investigation” and well surpassed any constitutional minimum. (Strickland, supra, 466 U.S. at p. 1176.) The record is abundantly clear that trial counsel made reasonable efforts to develop a theory of defense for petitioner. Petitioner’s trial counsel did that which the California Supreme Court held in People v. Frierson (1979) 25 Cal.3d 142 was required. He made reasonable efforts to investigate the factual framework underlying the defense of diminished capacity in an attempt to obtain additional evidence in the form of expert opinion to bolster the defense. First, trial counsel engaged and consulted Dr. Wilson for the specific purpose of investigating a mental state defense; specifically a PTSD defense. Then, after he received an ambivalent opinion from Dr. Wilson with respect to the viability of a PTSD defense, trial counsel requested and received additional funds from the trial court for the appointment of a second expert to pursue the same issue. Trial counsel continued to investigate the PTSD defense with Dr. Malinek. Although we do not know the exact contents of Dr. Malinek’s report to trial counsel, it is apparent from the information available in the record that Dr. Malinek’s opinion did not support or advance defense counsel’s theory of PTSD defense. The habeas papers do not suggest otherwise. Trial counsel obtained information from two experts about the viability of mental defenses and thereafter made an informed decision about trial strategy. It was not unreasonable for trial counsel to design his trial strategy in light of the evaluations he received from Dr. Wilson and Dr. Malinek. The two psychiatrists hired by trial counsel did not support the defense theory. After pursuing his efforts to develop the PTSD defense, trial counsel ultimately elected to proceed with the “heat of passion” theory of defense. This was not an unreasonable trial strategy and by making this decision trial counsel did not render ineffective assistance of counsel.
At the time of sentencing, the trial court noted on the record, trial counsels efforts to get the PTSD issue before the court: “I want to say that, in the court’s opinion, you have argued at length and eloquently on at least three occasions regarding the issue of your client and what happened to him in El Salvador.”
“Competent representation does not demand that counsel seek repetitive examinations of the defendant until an expert is found who will offer a supportive opinion.” (People v. Williams (1988) 44 Cal.3d 883, 945; see also, In re Grissom (1978) 85 Cal.App.3d 840 (counsel not expected to order multiple tests in hope that one will produce useful information); Wilson v. Henry (9th Cir. 1999) 185 F.3d 986, 990 [counsel cannot be faulted for failing to pursue a mental state defense when such a defense seems unlikely]; Babbitt v. Calderon (9th Cir.1998) 151 F.3d 1170, 1174 (as amended) [counsel had no obligation to seek out specific PTSD experts rather than the experts counsel actually retained].) “[D]efendant’s ability to produce conflicting evidence four years later does not in itself establish that [counsel’s original] factual inquiry was inadequate. The proper test is whether the original inquiry by counsel was adequate in light of the facts he knew or should have known at the time the inquiry was undertaken.” (People v. Stanworth (1974) 11 Cal.3d 588, 613.)
It is true that the psychiatrist selected by appellate counsel offered a stronger opinion which may have satisfied the trial judge both about the experience of the expert and supported the potential viability of the PTSD defense. Dr. Weinstein was firm in his conclusion that petitioner suffered from PTSD and that that petitioner “is likely to lack the capacity to act with the requisite malice and fully premeditate an act to the degree that it would constitute first degree murder.” We are also mindful that according to California law, while a psychologist can testify that a defendant suffers from the disorder and can describe how the disorder typically affects the afflicted, he cannot establish by his testimony alone that a defendant did or did not actually harbor a particular intent. As provided by petitioner’s habeas counsel, the opinion of Dr. Weinstein is relevant to our evaluation of petitioner’s contentions, but does not turn a competent effort to develop a PTSD defense into an incompetent effort via the benefit of hindsight.
Harmless v. Prejudicial Error
Although we do not believe that a prima facie case of ineffective assistance of counsel was established, we shall nevertheless address the potential prejudice from the failure to present the PTSD defense. To establish prejudice, petitioner must show that “it is reasonably probable that a determination more favorable to defendant would have resulted in the absence of counsel’s failings.” (People v. Phillips (1985) 41 Cal.3d 29, 60; see also People v. Bradford (1997) 14 Cal.4th 1005, 1051.) Therefore, in this portion of our review we do not ask whether petitioner suffered from diminished capacity, but instead whether, taking the expert’s testimony as true, there is a reasonable probability that introduction of testimony similar to that of Dr. Weinstein might have made a difference in the outcome of the trial. In Ledesma the California Supreme Court explained: “‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’” (Ledesma, supra, 43 Cal.3d at p. 218.) Stated another way, “‘[w]hen a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.’” (Ibid., quoting, Strickland, supra,466 U.S at p. 695.)
On this point, we conclude that it is not reasonably probable that a different result would have occurred if psychiatric evidence had been presented at trial. Although the proposed evidence was that he was possibly suffering from PTSD at the time of the crimes and lacked the required mens rea for a first-degree murder conviction, this is still a few steps removed, in our opinion, from a “reasonable probability” that the jury would not have found him guilty of the charged offenses.
For this discussion, we are assuming that evidence similar to that presented by Dr. Weinstein would have been offered.
First of all, the traumatic events of petitioner’s early life in Salvador were 23 years in the past. Although there was evidence that petitioner suffered from depression and had undergone psychotherapy in the past, he had no criminal record or record of any substance abuse during that period. There was no prior violent manifestation based on alleged PTSD. However, there was evidence that petitioner was a womanizer, was abusive to his wife during their marriage, and that he was under the stress that customarily attends the break-up of a marriage. On the date of the shooting, there is no evidence of any specific provocation. It was hours after dropping his wife off at work that petitioner walked into the wife’s workplace with a weapon hidden under a towel, walked straight to Chavez and shot him in the head and then proceeded directly to his wife and shot her. He then walked out of the building, without saying a word further. We do not find it reasonably probable that a jury presented with this evidence, knowing also that petitioner suffered from PTSD, a condition which had not manifested itself in any overt acts in 23 years, would have reached a different result in this case.
Additional Contentions in Habeas Petition Voluntary Manslaughter/ Imperfect Self Defense
Petitioner contends that trial counsel’s tactical decision to present only one defense removed other meritorious defenses from consideration, in that he failed completely to investigate “heat of passion” and “unreasonable self defense” defenses to first degree murder and attempted murder and, the failure to request jury instructions on this point. Petitioner argues that “culturally sensitive psychological evaluation may nonetheless have uncovered a mental state defense that would be functionally similar to PTSD in its effect, but which would be described technically in some other fashion, such as ‘dissociative state.’” This suggestion was not furthered by the declaration of Dr. Weinstein and we regard the argument as speculative and not supportive of a claim of ineffective assistance of counsel. Petitioner also contends trial counsel failed to present a cultural defense. This contention was not developed further and we regard this argument as waived.
Voluntary manslaughter is the unlawful killing of a human being with intent, but without malice. (People v. Barton (1995) 12 Cal.4th 186, 199 (Barton).) “Generally, an intent to unlawfully kill reflects malice. [Citations.]” (People v. Lee (1999) 20 Cal.4th 47, 59 (Lee).) But “an intentional killing is reduced to voluntary manslaughter if other evidence negates malice.” (Ibid.) Malice is absent “when the defendant acts in a ‘sudden quarrel or heat of passion’ (§ 192, subd. (a)) or when the defendant kills in . . . the unreasonable but good faith belief in having to act in self-defense.” (Barton, supra, 12 Cal.4th at p. 199.) The second situation is often described as “imperfect self-defense.”
1. Heat of Passion
A defendant seeking to mitigate a killing from murder to heat of passion voluntary manslaughter must demonstrate both subjective heat of passion and objective provocation. (People v. Steele (2002) 27 Cal.4th 1230, 1252.) “‘[T]his heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances.’” (Id. at p. 1252.) In addition, to be entitled to voluntary manslaughter instructions, “the killing must be ‘upon a sudden quarrel or heat of passion’ (§ 192[, subd. (a)]); that is, ‘suddenly as a response to the provocation, and not belatedly as revenge or punishment. Hence, the rule is that, if sufficient time has elapsed for the passions of an ordinarily reasonable person to cool, the killing is murder, not manslaughter.’ [Citation.]” (People v. Daniels (1991) 52 Cal.3d 815, 868.)
“Heat of passion arises when ‘at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinary reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment.’” (Barton, supra, 12 Cal.4th at p. 201, quoting CALJIC No. 8.42 (5th ed. 1995 supp.).) “The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim. [Citations.] The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection.” (Lee, supra, 20 Cal.4th at p. 59.)
Adequate provocation must be affirmatively demonstrated. (Lee, supra, 20 Cal.4th at p. 60.) The events in this case that are identified as potential provocations are: (1) Rosa had been refusing petitioner’s requests to return to the relationship; (2) on the morning of the shooting she declined again and told petitioner that she longer loved him; and (3) on one occasion, petitioner saw Chavez with his arm around Rosa. None of these events, either individually or collectively, is sufficient to support a defense based on “heat of passion.” None of these events, nor anything else reflected in the record, is sufficiently provocative so to cause an average person to react with deadly passion. If events of the above routine variety were all that would be required for “heat of passion”, then sufficient provocation for homicide would be found in nearly every marital break-up. Our review did not reveal any factual evidence of a sudden quarrel between petitioner and his wife. Our review of the record indicates there was no substantial evidence of adequate provocation to support a defense theory of voluntary manslaughter committed upon a sudden quarrel or heat of passion.
2. Imperfect Self-Defense
A defendant engages in imperfect self-defense where the defendant kills in the honest but unreasonable belief that it is necessary to defend himself from imminent peril to life or great bodily injury. This mental state reduces the crime of murder to manslaughter because it also negates malice. (People v. Vasquez (2006) 136 Cal.App.4th 1176, 1178; People v. Flannel (1979) 25 Cal.3d. 668, 674 (superseded by statute on other grounds as stated in In re Christian S. (1994) 7 Cal.4th 768).)
There is no evidence in the record, substantial or otherwise, to support the contention that petitioner subjectively believed that he needed to protect himself from imminent harm of any sort. Petitioner’s declaration that Chavez said he would defend himself if petitioner attacked him does not create a threat of imminent harm. Petitioner offered no evidence of such a subjective belief and the prosecution’s evidence did not reveal the basis for any such belief. To posit that petitioner had such a state of mind would be pure speculation. Speculation does not support an instruction on a lesser included offense. (People v. Sakarias (2000) 22 Cal.4th 596,620; People v. Valdez (2004) 32 Cal.4th 73, 116.) By that standard, it would not support the argument presented here.
Given the lack of evidence to support a defense based on voluntary manslaughter, counsel was not obligated to have pursued such a defense or instruction. (See People v. Ochoa (1998) 19 Cal.4th 353, 434 [“Counsel cannot have been ineffective for failing to seek an instruction for which there was no supporting evidence.”].) As such, petitioner is unable to show either deficient performance or prejudice and cannot overcome the strong presumption on appeal that counsel’s conduct falls within the wide range of adequate professional assistance. (People v. Stanley (2006) 39 Cal.4th 913, 954.)
Further, petitioner contends that trial counsel argued against his interest by affirmatively telling the court that petitioner had no defense and making unauthorized admissions in closing argument. There is no merit to this contention. To begin with, trial counsel did not argue that petitioner had no defense, rather he argued that given the state of the case, he could not argue manslaughter, and could only argue lack of premeditation. It is simply a fact that trial counsel did not have a lot to work with to develop a defense for petitioner. Eye witnesses testified that petitioner dispassionately murdered one parson and shot another. Petitioner had motive and was apprehended immediately. Counsel argued what the evidence suggested was the most likely to benefit petitioner. There is no error in failing to make a more aggressive argument. Our interpretation of the record is consistent with trial counsel’s evaluation and we find no error on this point.
Similarly, we find no merit to the contention that trial counsel made unauthorized admissions in closing argument. By this argument we assume petitioner refers to trial counsel’s statement in argument that petitioner shot Chavez in the head and his wife in the abdomen. Unfortunately, these are undisputed facts and counsel’s reference to them merely acknowledges the obvious and is not error.
Petitioner’s final argument is that trial counsel’s “general approach to the presentation of a defense in this court trial was so ineffectual and negligent as to constitute a breakdown of the adversarial system.” Having carefully evaluated the record in this case as presented above, we found trial counsel’s performance was constitutionally sufficient and we found no instances of ineffective assistance of counsel. This being true, this final catch-all contention has no merit.
DISPOSITION
In light of all the evidence properly presented at trial or offered in the habeas corpus petition, we conclude petitioner did not establish ineffective assistance of counsel and failed to carry his burden of showing there was a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. The petition for a writ of habeas corpus is denied.
We concur: RUBIN, J. FLIER, J.