Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Super. Ct.No. SWF009833 Judith C. Clark, Judge. David James Adair, Jr., Edward Roy Arnott, Jr.
ORIGINAL PROCEEDING; petition for writ of habeas corpus. Judith C. Clark, Judge.
Allison H. Ting for Defendant and Appellant David James Adair, Jr.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant Edward Roy Arnott, Jr.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Heather F. Crawford, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
McKinster, J.
This is an appeal by David James Adair, Jr., and Edward Roy Arnott, Jr., defendants and appellants (hereafter individually referred to by last name or collectively referred to as defendants), following their joint trial on charges that defendants attempted to murder Robert Abraham (count 1), carjacked his vehicle (count 2) and assaulted him with a deadly weapon (count 3). The case was tried with separate juries because defendant Adair was charged with two additional counts that did not involve defendant Arnott. On the joint charges, defendant Adair’s jury found him guilty of carjacking in violation of Penal Code section 215, subdivision (a) (count 2) and assault with a deadly weapon in violation of section 245, subdivision (a)(1) (count 3), but acquitted him of attempted premeditated murder (count 1). Defendant Adair’s jury also found true special allegations in connection with counts 2 and 3 that he personally used a knife within the meaning of section 12022, subdivision (b)(1), and in connection with count 3, that he personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a). Defendant Arnott’s jury, in turn, found him guilty as charged of attempted murder in violation of sections 664/187, but without premeditation and deliberation (count 1), carjacking (count 2), and assault with a deadly weapon (count 3). The jury also found true special allegations in connection with all three counts that defendant Arnott personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a) and section 1192.7, subdivision (c)(8) on Robert Abraham, the victim of the crimes alleged in all three counts, and in connection with counts 1 and 2, that defendant Arnott personally used a deadly weapon, namely a flashlight, within the meaning of section 12022, subdivision (b)(1) and section 1192.7, subdivision (c)(23).
All further statutory references are to the Penal Code unless indicated otherwise.
Counts 4 and 5, respectively, applied only to defendant Adair and alleged that he kidnapped James Green law with the intent to facilitate a carjacking, within the meaning of section 209.5, and that he committed the crime of carjacking, within the meaning of section 215, subdivision (a). The jury found defendant Adair guilty on those two counts and further found true the special allegations in connection with both counts that defendant Adair personally used a firearm within the meaning of section 12022.53, subdivision (b).
Defendant Arnott raises two claims in this appeal—that the trial court committed prejudicial error when it denied his request to instruct the jury on the defense of voluntary intoxication and the trial court improperly imposed the upper term sentence on count 2, his conviction for carjacking. We disagree with both claims and will affirm the judgment as to defendant Arnott.
Defendant Adair raises various claims of error directed at challenging the jury’s verdicts finding him guilty of kidnapping in the commission of a carjacking as alleged in count 4, and carjacking as alleged in count 5. He also challenges the upper term sentence the trial court imposed on count 2. We agree with his claim that he was wrongly convicted of both kidnapping in the commission of a carjacking and carjacking and therefore will reverse the carjacking conviction and affirm the judgment as modified. In a petition for writ of habeas corpus, which we consolidated with this appeal for the purpose of determining whether an order to show cause should issue, defendant Adair alleges he was denied the effective assistance of counsel at trial. We conclude that his petition does not establish a prima facie basis for relief. Therefore, we will deny the writ.
STATEMENT OF FACTS
The facts pertinent to counts 1 through 3, the crimes that defendants jointly committed against Robert Abraham, are effectively undisputed. Defendant Adair does not challenge the jury’s verdicts finding him guilty of carjacking and assault with a deadly weapon (counts 2 and 3), and defendant Arnott does not dispute the pertinent events, but instead claims that because he was under the influence of methamphetamine he did not form the requisite intent to commit attempted murder (count 1). Therefore, we will not recount the details of the facts pertinent to those crimes. For purposes of defendant Arnott’s appeal it is sufficient to note that around 3:00 a.m. on November 9, 2004, defendant Adair (also referred to at trial by his nickname, Hueto) and defendant Arnott asked Robert Abraham to drive them to the Soboba Indian Reservation where they claimed they were going to get some methamphetamine. Instead of directing Abraham to a house that he and defendant Adair had been to earlier on the night of November 8, defendant Adair directed him to drive down a dirt road to a secluded area. While Abraham sat in the car, defendant Arnott hit him on the side of the head with “a rather large Mag flashlight.” Defendant Adair then held a knife to Abraham’s throat and directed him to get out of the car. Abraham opened the driver’s side door, used his feet to push defendant Adair back, and then slid out and ended up on his back on the ground. Once outside the car both defendants assaulted Abraham by kicking him, and defendant Arnott also hit him several times with the flashlight. Defendants hit Abraham several more times before they jumped in Abraham’s car and drove away.
Defendant Adair purports to join in the arguments raised by defendant Arnott, however, defendant Arnott’s arguments are not pertinent to defendant Adair.
Abraham chased after the car and caught hold of the moon roof but he lost his grip and slid down the back of the car where he grabbed on to the rear spoiler. Abraham held on for “a couple hundred yards” before he fell off the car. After defendants drove off, Abraham realized that he was bleeding badly from his right side and discovered he had been stabbed twice. Abraham walked to get help, and paramedics took him to a nearby hospital where he was treated for what turned out to be three stab wounds to the chest, two on his left side and one on the right that penetrated the chest and caused the lung to collapse. Abraham remained hospitalized for four days after the assault.
DISCUSSION
We first address defendant Arnott’s claim that the trial court committed prejudicial error by refusing to instruct the jury on voluntary intoxication and mental impairment.
1.
VOLUNTARY INTOXICATION INSTRUCTION
Defendant Arnott contends there was evidence to show that he was under the influence of methamphetamine at the time he and defendant Adair assaulted Robert Abraham and stole his car. Therefore, he contends that the trial court should have instructed the jury according to Judicial Council of California Criminal Jury Instructions, CALCRIM Nos. 404 (“Intoxication”), 625 (“Voluntary Intoxication: Effects on Homicide Crimes”), 3426 (“Voluntary Intoxication”), and 3428 (“Mental Impairment: Defense to Specific Intent or Mental State”). During the discussion about jury instructions, the trial court expressed doubt whether there was evidence that defendant Arnott was voluntarily intoxicated at the time of the crimes because defendant Arnott told the sheriff’s investigator that he had been clean for 40 days. Moreover, the trial court observed that the only evidence pertinent to the issue suggested that defendant Arnott might have been under the influence of Xanax and/or Valium rather than methamphetamine. Although expert testimony was presented at trial regarding the effect methamphetamine would have on someone who had ingested that drug, no evidence was presented regarding the effects of any other drug. Consequently, the trial court refused to give the first three instructions noted above. The trial court also found that the evidence did not warrant instructing the jury according to CALCRIM No. 3428 because there was no evidence to show that defendant Arnott suffered from a mental disease, defect or disorder. Defendant Arnott contends the trial court erred.
In determining whether the trial court should have given some or all of the instructions in question, we begin with the principle that “[a] defendant is entitled to . . . an instruction [on voluntary intoxication] when there is substantial evidence of the defendant’s voluntary intoxication and the intoxication affected the defendant’s ‘actual formation of specific intent.’ [Citations.]” (People v. Williams (1997) 16 Cal.4th 635, 677.) As the trial court observed, evidence was presented at trial to show that defendant Arnott had used methamphetamine and heroin in the past, that people with him or with whom he associated on the night of the crime had used drugs including methamphetamine, and that defendant Arnott had the opportunity to use drugs that night. The only evidence directly addressing the question of whether he in fact used drugs and therefore was under the influence at the time the crime was committed was defendant Arnott’s statements to Sheriff’s Investigator Duffy that he had been clean for 40 days except that he had smoked weed and had been taking Valium and Xanax for anxiety and that he had been abusing the Xanax, for which he had a prescription, by taking three or four at a time. When Investigator Duffy asked if he was under the influence at the time defendant Adair was fighting with Abraham, defendant Arnott said, “Yeah,” and when Duffy asked, “A lot, or just a little bit,” defendant Arnott said, “Actually, I just -- just woken up. [¶] . . . [¶] Probably, like, 5:00 o’clock [sic] that day or something.” Defendant Arnott also said, to explain his apparent animosity toward defendant Adair, “That’s just the way I think when I’m on drugs.”
The above noted evidence does not warrant instructing the jury on voluntary intoxication. At best, the evidence on the issue is equivocal, and suggests that defendant Arnott might have taken Valium and/or Xanax at some unspecified time before the assault on Abraham. However, as the trial court observed, no evidence was presented at trial to explain what if any effect those drugs would have on a person’s ability to form the requisite intent or mental state pertinent to the crimes in question. (See People v. Williams, supra, 16 Cal.4th at pp. 677-678 [“Assuming this scant evidence of defendant’s voluntary intoxication would qualify as ‘substantial,’ there was no evidence at all that voluntary intoxication had any effect on defendant’s ability to formulate intent”].)
We also conclude that the evidence did not warrant instructing the jury according to CALCRIM No. 3428 on the relationship between mental disease, defect, or disorder and defendant Arnott’s ability, either as the actual perpetrator or an aider and abettor, to form the intent or mental state required for the crime of attempted murder. To support his claim that the trial court should have given the instruction, defendant Arnott cites the testimony of his girlfriend regarding his long-time use of methamphetamine, her statement that several weeks before the crime defendant Arnott called her and asked her to call 911 because he was hyperventilating, and her testimony that when she saw him several weeks after the crime, he seemed “just real paranoid and just really bad.” Defendant Arnott also cites the testimony of Maureen Black, a toxicologist, who testified in pertinent part that long-term or chronic use of methamphetamine “can cause permanent mental conditions” such as anxiety, nervousness, and paranoia.
Defendant Arnott argues as he did in the trial court that, as evidenced by his statement to Investigator Duffy, he was very paranoid while in the car with defendant Adair and Robert Abraham, and believed they were going to attack him, or possibly even shoot him. Defendant Arnott contends the noted evidence is sufficient to show that he might have suffered from a mental condition caused by long-term drug use and therefore the trial court should have instructed the jury according to CALCRIM No. 3428.
As the trial court correctly observed, defendant Arnott’s statements that he was paranoid and fearful while with Abraham and defendant Adair could also have described appropriate emotions under the circumstances, i.e., he was in a remote area, late at night, he had $200 with him, and he was with two people he had just met, both of whom had been looking all night for a way to get methamphetamine for little or no money. Those circumstances warranted defendant Arnott’s claimed fear and paranoia. However, that evidence does not demonstrate that defendant Arnott suffered from a mental disease, defect, or disorder that might have affected his ability to form the required specific intent, and therefore did not warrant instructing the jury according to CALCRIM No. 3428.
But even if we were to conclude otherwise, we would nevertheless also conclude that failure to give the noted instructions was harmless. While defendant Arnott characterizes the error as affecting his due process right under the federal Constitution to present a defense, and therefore argues that the federal harmless error test applies, he does not cite specific authority to support his claim. As defendant Arnott correctly points out, the jury instructions in question are “pinpoint” instructions, i.e., instructions that relate evidence presented at trial to a specific element of the crime. (People v. Saille (1991) 54 Cal.3d 1103, 1119.) Prejudice resulting from failure to give such instructions is assessed under the state constitutional standard that requires reversal only if it is reasonably probable the jury would have reached a different result if the omitted instructions had been given. (People v. Earp (1999) 20 Cal.4th 826, 887; People v. Ervin (2000) 22 Cal.4th 48, 91.)
The trial court clearly instructed the jury that it could not find defendant Arnott guilty of the crimes charged unless the prosecutor proved every element of those crimes beyond a reasonable doubt, and in order to find defendant Arnott guilty of the crimes of attempted murder and carjacking, the prosecutor had to prove defendant Arnott committed those crimes with the specific intent stated in the definition of those crimes. In addition to the noted jury instructions, during closing argument defendant Arnott’s attorney argued the effect of drug use and addiction when he told the jury that defendant Arnott just flipped and wanted out of the car, actions that were consistent with what the toxicologist said about the neurotoxicity that often results from long-term drug use. Counsel also argued that if the jury had any doubt about defendant Arnott’s “mental state, [given] his paranoia, his drug use and the affect it had on him” the jury had to find defendant Arnott not guilty. The noted jury instructions and closing argument adequately advised the jury of the relationship between defendant Arnott’s claimed paranoia or mental defect as a result of long-term drug use and the mental state required to commit the crimes in question as well as the relationship between his claimed drug-induced mental defect and the mental state necessary to commit the noted crimes. Accordingly, we conclude it is not reasonably probable the jury would have reached results more favorable to defendant Arnott on either the attempted murder or carjacking charges if the trial court had instructed the jury according to CALCRIM Nos. 404, 625, 3426, and 3428.
2.
UPPER TERM SENTENCE
Both defendants contend that the trial court violated their respective rights under the Sixth and Fourteenth Amendments to the United States Constitution by imposing upper term sentences on count 2, the carjacking charge, based on a fact that was found true by a judge rather than by a jury. The United States Supreme Court held in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), that California’s determinate sentencing law violates the Sixth and Fourteenth Amendments because it allows a judge to impose an upper term sentence based on facts found true by the judge rather than the jury. (Id. at p. 860.) As the high court explained, “[T]he Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Ibid.) After the parties filed their briefs on this issue, the California Supreme Court decided People v. Black (2007) 41 Cal.4th 799 (Black II) and held, in pertinent part, that when one circumstance in aggravation is established in a manner that comports with the federal Constitution, i.e., by a jury, by the defendant’s admission, or based on a prior conviction, the upper term sentence becomes the statutory maximum sentence that the trial court can impose and the trial court may then rely on other aggravating circumstances, regardless of whether they were found true by a jury, without violating the federal Constitution, in exercising its discretion to impose an upper term sentence. (Black II, at p. 813.)
Defendant Arnott contends that Black II and its companion case, People v. Sandoval (2007) 41 Cal.4th 825, are not only wrongly decided but also are not binding on this court because both decisions address federal constitutional issues that the United States Supreme Court addressed and decided differently in Cunningham. Defendant Arnott is correct on the controlling legal principle but not on its application.
Decisions of the United States Supreme Court that squarely address a federal constitutional issue are binding on this court, and are controlling over decisions by our state Supreme Court that resolve the issue differently. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; People v. Whitfield (1996) 46 Cal.App.4th 947, 956-957; People v. Superior Court (Williams) (1992) 8 Cal.App.4th 688, 702-703.) Defendant Arnott’s contrary claims notwithstanding, the United States Supreme Court did not squarely rule in Cunningham on the issues addressed in Black II and People v. Sandoval. More particularly, defendant Arnott is wrong when he claims that the Supreme Court held in Cunningham that “each and every fact” used to impose an aggravated sentence must be found by the jury. The United States Supreme Court reiterated in Cunningham that in order to comport with the Sixth Amendment, “any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt . . . . ” (Cunningham, supra, 127 S.Ct. at pp. 863-864, emphasis added.) Because the United States Supreme Court did not “squarely” address the issue, we are bound by our state Supreme Court’s resolution of the issue in Black II.
The trial court imposed the upper term sentence of nine years on defendant Arnott’s carjacking conviction based in part on the fact that his prior convictions as an adult were becoming more numerous and of increasing seriousness, and on the fact that he was on probation at the time he committed the crime. Those facts all pertain to or are aspects of a prior conviction, what the court in Black II refers to as recidivism, and therefore are facts that comport with the requirements of the federal Constitution. (Black II, supra, 41 Cal.4th at p. 818.) Defendant Arnott challenges this expansive interpretation of a prior conviction but concedes that the United States Supreme Court has not yet addressed the question. Consequently we are bound by our state Supreme Court’s interpretation. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.) Because the trial court relied on the fact of defendant Arnott’s recidivism to impose the upper term sentence, recidivism is an aspect of a prior conviction, and a prior conviction is a fact that may be relied on to impose an increased sentence without running afoul of the federal Constitution, we must affirm that sentence.
The same analysis and conclusion applies to defendant Adair. In his case the trial court cited the fact of defendant Adair’s criminal history as a basis for imposing the upper term sentence on count 2. That history as recounted by the trial court includes a 1998 “carjacking as well [as] a robbery offense that also involved a high speed pursuit as a juvenile . . . and then numerous intervening efforts by the Court and placements of the defendant at various youth facilities resulting then, as an adult, in the defendant returning to that same course of criminal conduct, committing two subsequent violations of Vehicle Code Section 10851 for the subsequent theft of vehicles.” Because the trial court relied, in part, on the fact of defendant Adair’s recidivism to impose the upper term sentence on count 2, that sentence does not run afoul of the Sixth Amendment. (Black II, supra, 41 Cal.4th at p. 818.)
3.
ISSUES RAISED BY DEFENDANT ADAIR
The remaining issues on appeal all pertain to defendant Adair and involve his conviction on count 4 for kidnapping James Green law during the commission of a carjacking, and on count 5 for the carjacking in which Green law was the victim. The facts of those crimes are not in dispute because defendant Adair’s defense was that of mistaken identity, due in part to the fact that the victim, James Green law, a 36-year-old homeless man who lived in his car (a white Geo Prism), suffered from schizophrenia. Green law identified defendant Adair from a photo lineup as the person who, at 1:40 a.m. on October 30, 2004, walked up to Green law as he sat in his car behind a gas station. According to Green law, defendant Adair said that his car had broken down and asked Green law for a lift. A few minutes later, another man came around the corner of the gas station. Defendant Adair identified that man as his friend and asked Green law if he could also come along. After Green law agreed, defendant Adair pointed a gun at him and told him to get out of the car. Green law complied and then told defendant Adair to take the car. Defendant Adair, however, said that Green law was coming with them.
At defendant Adair’s direction, Green law sat in the front passenger seat, while defendant Adair drove Green law's car, and the other man, whom Green law did not get a clear glimpse of and therefore could not identify, sat in the back seat. After what Green law estimated to be about 15 minutes, defendant Adair drove past the Soboba Casino, stopped the car somewhere on the Soboba Indian Reservation, and told Green law to get out of the car. Defendant Adair took Green law's shoes and jacket and also patted Green law down to make sure he did not have a cell phone. Before driving off, defendant Adair said to Green law, “You’re pretty far out here.” Green law walked to the casino, where he was able to get in contact with his brother, who took him to the sheriff’s department to report the crime. Riverside County Sheriff’s Deputy Mott took the report. The sheriff’s department recovered Green law's car on November 2, 2004, on Jennifer Avenue, in the unincorporated area of Hemet. Green law got his car back, but all of his belongings were gone.
Nicholl Rowe, defendant Adair’s friend, lived on Jennifer Avenue. Rowe testified at trial that in late October or early November 2004 she saw defendant Adair driving a white, four-door Geo Prism. While driving around in the car with defendant Adair, Rowe opened the glove box and found prescription medication and Medicare cards that belonged to the car’s owner. When she asked defendant Adair about the car, he told her that she had nothing to worry about, she was not going to get caught in the car, because “they” had left the guy on the Soboba Indian Reservation, in the middle of nowhere, without his clothes or shoes so that he could not report the car stolen. Defendant Adair also told Rowe that he had used a gun to take the car from its owner.
Additional facts will be discussed as pertinent to the issues defendant Adair raises on appeal.
A. Pretrial Discovery of Green law's Psychiatric Records
Defendant Adair contends that the trial court erred when it denied his pretrial motion for discovery of James Green law's psychiatric records. In raising this claim, defendant Adair acknowledges that in People v. Hammon (1997) 15 Cal.4th 1117, our state Supreme Court held that a defendant does not have a right to pretrial disclosure of privileged information such as psychiatric records. (Id. at pp. 1122-1128.) Undaunted, defendant Adair urges us either to distinguish records generated by government psychiatric institutions, which defendant Adair argues are government generated records and therefore subject to pretrial discovery under Brady v. Maryland (1963) 373 U.S. 83, 87, or to hold that People v. Hammon is wrongly decided. We cannot do the latter, even if we were so inclined (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455), and need not do the former because even if we were to draw the distinction defendant Adair urges, we nevertheless would conclude that any error in failing to produce the purported records was harmless.
As an alternate claim, defendant Adair asserts that the prosecutor committed misconduct by failing to disclose the pertinent records. The claim is predicated on defendant Adair’s bald assertion that because James Green law might have received treatment at a psychiatric facility operated by a government agency, the prosecutor had a duty to obtain any records that were generated during that hypothetical treatment and to produce that information for defendant Adair. Brady v. Maryland, supra, 383 U.S. 83, the authority defendant Adair cites to support this claim, does not impose such an obligation on the prosecutor.
The pertinent factual and procedural details are that defendant Adair filed a standard pretrial discovery motion in which he requested disclosure of the standard information, e.g., statements made by witnesses, rap sheets on the victims and witnesses, and also requested “any and all discovery concerning this victim-witness, including mental health records pertaining to witness [] Green law (carjacking victim-witness).” In the points and authorities he submitted in support of his motion, defendant Adair did not address discovery of Green law's psychiatric records. Therefore, defendant Adair did not demonstrate that such records even existed or if they did exist that there was a legal basis justifying his request that the records be produced. For that reason alone the trial court correctly denied the discovery request.
At the hearing on the discovery motion, defendant Adair represented to the trial court that James Green law was in a mental institution and also had a “long-standing history of mental problems that have required prior hospitalizations.” Defendant Adair argued that Mr. Green law's mental disease or infirmity could have affected his ability to make a proper identification in this case and therefore the prosecution was obligated to demonstrate the reliability of that identification. The trial court found that defendant Adair had not made a sufficient showing and therefore denied the motion.
At trial James Green law testified in pertinent part that on October 29, 2004, he was living in his car because he had just left a residential alcohol rehabilitation program. He also stated that he has a mental illness, schizophrenia, and although he was not on medication at the time of trial, he had been taking medication to help him sleep and “to keep [him] even” at the time his car was stolen. Green law explained that the medication helps “to keep my emotions and my thinking straight, so I do not go over the deep end, so to speak.” Green law confirmed that he has hallucinations and sometimes does not see “reality the way it should be.” He also stated that he had not taken any medication during the 24 hours before his car was stolen but that he drank half of a 32 ounce bottle of Colt around 11:00 p.m. In an apparent contradiction, Green law stated that on the night his car was stolen, he had taken his medication with alcohol because it helps him sleep. Green law acknowledged that when he does not take his medication he sometimes has hallucinations, which he described as “like living in a cartoon world.” When asked to elaborate, Green law said, “It’s just not real. It’s like being in a cartoon. Not an actual cartoon, but it feels like it.” Green law again confirmed that he was not on medication, and when asked about his perceptions of events “right this minute,” he stated, “It’s puzzling me, but I’m coping.” Green law also testified that the day after his car was stolen, he returned to the residential rehabilitation program “and they let me back in.” When asked how he knew that the theft of his car was real and not a hallucination, Green law explained, “I was -- I was sober for seven months in a program, and then I was pretty much well -- well in my head to see. Okay? And of what was going on and -- and that’s as best as I can put it. Okay?” When asked if he felt like he was living in a cartoon during the course of the evening in which his car was stolen, Green law said that he had felt that way at the end “when he’s driving away,” apparently referring to defendant Adair driving off in Green law's car.
Defendant Adair’s contrary claim notwithstanding, during his trial testimony James Green law disclosed all the relevant information about his mental health. As a result, in his closing argument defendant Adair attacked Green law's credibility. Although defendant Adair asserts that additional information might have been contained in the psychiatric records, he does not identify what additional information would have been necessary or even simply useful to him in order to challenge Green law's credibility as a witness. Moreover, Nicholl Rowe’s testimony, recounted above, corroborated James Green law's identification of defendant Adair as the person who stole Green law's car. For these reasons we must conclude that, even if defendant Adair were entitled to disclosure of James Green law's psychiatric records, there is no reasonable possibility that the purported erroneous failure to disclose that information affected the jury’s verdicts on either of the charges in question. In short, if error occurred it was harmless beyond a reasonable doubt. (See People v. Jones (2003) 29 Cal.4th 1229, 1264, fn. 11 [“State law error occurring during the penalty phase will be considered prejudicial when there is a reasonable possibility such an error affected a verdict. . . . Our state reasonable possibility standard is the same, in substance and effect, as the harmless beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18, 24 . . . .”].)
In arguing prejudice, defendant Adair contends that the trial court instructed the jury that it could not “consider a mentally ill person as any more or less credible than another witness.” The trial court did not give such an instruction. Instead, the trial court instructed the jury, as it is required to do under section 1127g, that, “In evaluating the testimony of a person with a mental impairment, consider all of the factors surrounding that person’s testimony, including his or her level of cognitive development. [¶] Even though a person with a mental impairment may perform differently as a witness because of his or her level of cognitive development, that does not mean he or she is any more or less credible than another witness. [¶] You should not discount or distrust the testimony of a person with a mental impairment solely because he or she has such a [sic] impairment.” (CALCRIM No. 331, emphasis added.)
B. Evidence Explaining Why Green law Left Residential Treatment
As a separate but obviously related claim, defendant Adair contends that the trial court should have permitted him to ask James Green law why he left the residential alcohol treatment program he had been in in October 2004. Instead, the trial court sustained the prosecutor’s relevance objection when defendant Adair asked Green law, “[W]hy did you have to leave?” In a sidebar conference, defendant Adair stated that Green law is “a self treating schizophrenic. He treats with methamphetamine and alcohol. He’s hallucinatory.” The trial court apparently construed defendant Adair’s statement to suggest that the question was relevant because Green law might have been drinking or using drugs while in the treatment program. The trial court sustained the relevance objection and indicated that the relevant inquiry was whether Green law had been drinking or taking drugs at or near the time his car was stolen.
During the sidebar conference, counsel for defendant Adair stated that Green law “ended up in Patton.” Appellate counsel asks us to take judicial notice of the fact that Patton State Hospital treats mental illness; “its official website lists no alcohol treatment program.” Defendant Adair’s request for judicial notice is denied. Defendant Adair’s attorney did not state, as appellate counsel suggests, that Green law had been in Patton State Hospital when he claimed to have been in a residential alcohol treatment program. Defendant Adair’s attorney stated that Green law at some point “ended up” at Patton State Hospital, a statement that does not conflict with Green law's statement that shortly before his car was stolen he had been living at a residential alcohol treatment program.
Defendant Adair now asserts in this appeal that the reason Green law left the residential treatment program “was relevant to the manifestation of his schizophrenia in daily life,” and therefore was relevant to the issue of credibility. The quoted phrase at best is confusing, but we will not attempt to decipher its meaning because defendant Adair did not offer a similar explanation in the trial court and therefore may not assert it for the first time on appeal. Moreover, even if we were to decipher the meaning we nevertheless would hold that any error in excluding the evidence was harmless. As previously discussed, the details of Green law's schizophrenia, including the fact that the mental illness caused him to hallucinate, were fully developed at trial. Defendant Adair does not identify any additional information that would have been developed if the trial court had found the evidence relevant and had allowed Green law to respond. Here again, we must conclude that if Green law's reason for leaving the residential treatment program were relevant and therefore should have been admitted at trial, the purported error is harmless. It is not reasonably probable that the jury would have reached results more favorable to defendant Adair on any of the charges if the excluded evidence had been admitted at trial. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Although defendant Adair claims that the trial court’s ruling violated various rights guaranteed to him under the federal Constitution, “[t]he general rule remains that ‘“the ordinary rules of evidence do not impermissible infringe on the accused’s [constitutional] right to present a defense. Courts retain . . . a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice.”’ [Citations.]” (People v. Lawley (2002) 27 Cal.4th 102, 155, fn. omitted, quoting People v. Cudjo (1993) 6 Cal.4th 585, 611, quoting People v. Hall (1986) 41 Cal.3d 826, 834.)
C. Lesser Included Offense Instruction
Defendant Adair contends that the trial court should have instructed the jury sua sponte on kidnapping as a lesser included offense to the charged crime of kidnapping during the commission of a carjacking. Defendant Adair is wrong.
“‘“It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” [Citation.] That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.] The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given. [Citations.] Just as the People have no legitimate interest in obtaining a conviction of a greater offense than that established by the evidence, a defendant has no right to an acquittal when that evidence is sufficient to establish a lesser included offense. [Citation.]’ [Citations.]” (People v. Breverman (1998) 19 Cal.4th 142, 154-155.)
Defendant Adair contends that an instruction on kidnapping as a lesser included offense was warranted “based on the reasonable inference from the circumstantial evidence that [he] kidnapped Green law because it was pleasurable and felt good, and that he did not consider it [presumably referring to the kidnapping] necessary to facilitate the carjacking.” Despite his apparent contrary view, no evidence was presented at trial that would support an inference that defendant Adair kidnapped James Green law just for the pleasure or fun of it. The only support defendant Adair cites for his assertion is the prosecutor’s closing argument. Needless to say, the prosecutor’s argument is not evidence, and more to the point the prosecutor’s remarks were rank speculation at worst and hyperbole at best. (People v. Wilson (1992) 3 Cal.4th 926, 941 [“Speculation is an insufficient basis upon which to require the giving of an instruction on a lesser included offense”].) In short and simply put, the trial court was not required to instruct the jury on kidnapping as a lesser included offense of kidnapping during the commission of a carjacking because no evidence was presented at trial to support the instruction and thus to show that the crime defendant Adair committed was less than the crime charged. (People v. Breverman, supra, 19 Cal.4th at pp. 154-155.) If, as defendant Adair contends, the jury might have had a reasonable doubt about his intent, then the jury was instructed to find him not guilty of any crime.
D. Adequacy of Instruction on Kidnapping in the Commission of a Carjacking
Defendant Adair contends that the trial court did not correctly instruct the jury on the intent element of the crime of kidnapping during the commission of a carjacking. The trial court, as defendant Adair acknowledges, instructed the jury according to CALCRIM No. 1204, that, “The defendant is charged in Count 4 with kidnapping during a carjacking. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant committed a carjacking; [¶] 2. During the carjacking, the defendant took, held or detained another person by using force or by instilling reasonable fear; [¶] 3. The defendant moved the other person or made that person move a substantial distance from the vicinity of the carjacking; [¶] 4. The defendant moved or caused the other person to move with the intent to facilitate the carjacking or to help himself escape or to prevent the other person from sounding an alarm; [¶] 5. The person moved was not one of the carjackers; and [¶] 6. The other person did not consent to movement.”
Defendant Adair contends that the italicized language is incorrect because it does not comport with section 209.5, which defines the crime, and states in pertinent part that the kidnapping must be committed “during the commission of a carjacking and in order to facilitate the commission of the carjacking.” Defendant Adair acknowledges that the emphasized language in the trial court’s jury instruction identifies methods of facilitating carjacking. (See People v. Perez (2000) 84 Cal.App.4th 856, 861 [“Therefore, if there is substantial evidence that appellant intended the kidnapping to effect an escape or prevent an alarm from being sounded, his conviction for kidnapping during the commission of a carjacking must stand”].) The only arguable deficiency in the trial court’s instruction to the jury is that it does not expressly state that the escape effected must be “from the carjacking,” or that the alarm sounded must be “about the carjacking.” However, jury instructions must be viewed “as a whole to see if the entire charge delivered a correct interpretation of law.” (People v. Garrison (1989) 47 Cal.3d 746, 780.) The quoted phrases are implicit in the instruction when the instruction is viewed as a whole.
At worst, the trial court’s instruction required elaboration. It is well settled however that a defendant must request elaboration or clarification of an instruction in the trial court and failure to do so bars review of the issue on appeal. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1192; People v. Johnson (1993) 6 Cal.4th 1, 52; People v. Lang (1989) 49 Cal.3d 991, 1024 [“A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language”].) For each of the reasons discussed we reject defendant Adair’s challenge to CALCRIM No. 1204.
E. Instruction on Alternative Charges
Defendant Adair contends that the trial court erred when it instructed the jury according to CALCRIM No. 3515 that, “Each of the counts charged in this case is a separate crime. You must consider each count separately and return a separate verdict for each one.” Defendant Adair contends that count 4, which charged him with kidnapping Green law during the commission of a carjacking, and count 5, which charged him with the completed carjacking, were charged in the alternative. Therefore, defendant Adair contends that the trial court should have instructed the jury according CALCRIM No. 3516, which would have told the jurors that the crimes were charged in the alternative and the jury could only find defendant Adair guilty of one of the charges, not both. In his reply brief, defendant Adair concedes that the crimes were not charged in the alternative and therefore the trial court was not required to give CALCRIM No. 3516.
Defendant Adair also claims that the trial court should have given CALCRIM No. 3517 or No. 3518 because kidnapping and carjacking are both lesser included offenses of kidnapping during the commission of a carjacking. We will not address this claim. We have addressed and rejected defendant Adair’s assertion that the trial court should have instructed the jury on simple kidnapping as a lesser included offense. Therefore, we will not address the claim again in this context. In addition, we agree with defendant Adair’s separate claim, which we next address, that he was improperly convicted of both kidnapping in the commission of a carjacking and carjacking. Therefore, we will reverse his carjacking conviction and as a result, this entire claim is moot.
F. Conviction of Both Greater and Necessarily Included Offenses
Defendant Adair contends and the Attorney General correctly concedes that carjacking is a necessarily included offense of kidnapping in the commission of a carjacking because “a violation of section 209.5 ‘during the commission of a carjacking’ requires a completed offense of carjacking.” (People v. Contreras (1997) 55 Cal.App.4th 760, 765; see also People v. Ortiz (2002) 101 Cal.App.4th 410, 415.) The jury convicted defendant Adair of both crimes and the trial court sentenced him on both but stayed execution of the sentence on the carjacking conviction under section 654. The Supreme Court “has long held that multiple convictions may not be based on necessarily included offenses.” (People v. Pearson (1986) 42 Cal.3d 351, 355.) Therefore, we must reverse defendant Adair’s conviction on the included offense of carjacking. (Ibid.)
G. Cumulative Error
As his final contention, defendant Adair asserts that as a result of cumulative error, we must reverse his convictions on count 4 and count 5. We have addressed each of his claims and have concluded that if any error occurred it was harmless. Because the cumulative effect of harmless error necessarily is harmless, we must reject this final contention.
4.
DEFENDANT ADAIR’S HABEAS CORPUS PETITION
In a petition for writ of habeas corpus, defendant Adair alleges that he was denied the effective assistance of counsel at trial because his trial attorney (1) failed to hire Dr. Kathy Pezdek, a psychologist who specializes in eyewitness identification issues, to challenge James Green law's identification of defendant Adair from a photographic lineup; (2) did not adequately pursue disclosure of James Green law's medical and psychiatric records; (3) failed to investigate or present expert evidence on the effect of methamphetamine use on a witness’s credibility; (4) failed to object when the prosecutor accused defendant Adair of attempting to murder James Green law and then vouched for Green law's credibility as a witness; (5) requested CALCRIM No. 331 which instructed the jury that Green law's schizophrenia did not make him less credible than any other witness; (6) failed to object that the upper term sentence the trial court imposed on count 2 violated defendant Adair’s Sixth Amendment right to have a jury determine all issues of fact, other than the fact of a prior conviction; and (7) failed to object that the life sentence the trial court imposed on his conviction for kidnapping during the commission of a carjacking constituted cruel and unusual punishment in violation of the Eighth Amendment. We conclude for reasons we now explain that defendant Adair has not made a prima facie showing for relief.
The legal principles that govern our review of these allegations are well settled. First, “[w]e presume the regularity of proceedings that resulted in a final judgment [citation],” and place the burden on defendant to plead sufficient grounds for relief. (People v. Duvall (1995) 9 Cal.4th 464, 474.) We will only issue an order to show cause if the factual allegations of the petition if taken as true establish a prima facie case for relief. (Id. at p. 475.) To establish a prima facie case for relief based on ineffective assistance of counsel, defendant must allege facts in his habeas corpus petition that “demonstrate (1) counsel’s performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient representation prejudiced the defendant, i.e., there is a ‘reasonable probability’ that, but for counsel’s failings, defendant would have obtained a more favorable result. [Citations.] A ‘reasonable probability’ is one that is enough to undermine confidence in the outcome. [Citations.]” (People v. Dennis (1998) 17 Cal.4th 468, 540-541, citing, among other cases, Strickland v. Washington (1984) 466 U.S. 668.) “In evaluating defendant’s showing we accord great deference to the tactical decisions of trial counsel in order to avoid ‘second-guessing counsel’s tactics and chilling vigorous advocacy by tempting counsel “to defend himself against a claim of ineffective assistance after trial rather than to defend his client against criminal charges at trial . . . .”’ [Citations.]” (In re Fields (1990) 51 Cal.3d 1063, 1069-1070.)
Defendant Adair has failed to establish either requirement of his ineffective assistance of counsel claim. In his supporting points and authorities, defendant Adair engages in a convoluted argument with respect to his first allegation that trial counsel should have hired an expert witness to challenge the photographic lineup from which James Green law identified him. The argument begins with the assertion that the expert witness would have established that the lineup was unduly suggestive and concludes with the assumption that either a motion to suppress Green law's identification of defendant Adair would have been granted or, if denied, the ruling would have been reversed on appeal. We need not address the specifics of his claim because defendant Adair has not demonstrated either deficient performance or prejudice.
Defendant Adair has included as exhibits to his habeas petition the photo lineup from which James Green law identified him (Exh. H) and Dr. Pezdek’s expert evaluation of that photo lineup (Exh. I). In that analysis, Dr. Pezdek expresses the opinion that an unbiased lineup should include photos of the suspect and five other individuals that fit the description of the suspect given by the witness. Dr. Pezdek then notes ways in which the five men depicted in the other photographs vary from Green law's description of the suspect (two are not slender and one does not appear to be “Indian/Hispanic”). That analysis does not establish that the photo lineup is unduly suggestive.
The law on the point is clear—physical differences between the defendant and other participants in a lineup do not make the lineup unduly suggestive. “Because human beings do not look exactly alike, differences are inevitable. The question is whether anything caused defendant to ‘stand out’ from the others in a way that would suggest the witness should select him. [Citation.]” (People v. Carpenter (1997) 15 Cal.4th 312, 367.) Dr. Pezdek’s analysis describes psychological factors that could increase the likelihood that a witness would select the defendant’s photograph. That increased likelihood does not render the lineup unduly suggestive because it does not make defendant Adair’s photo stand out from the others. More significantly, Dr. Pezdek also identifies “numerous factors [that] would actually bolster the accuracy of the eyewitness identification of the suspect by Mr. Green law First, Mr. Green law was close to this suspect and, although he was looking at the dash-board [sic] while they were driving, he had several opportunities over the course of the incident to look at this suspect. Also, he identified him only 2-weeks [sic] later. Relative to most eyewitness identifications, this is not a very long time delay.”
In the context of defendant Adair’s petition for writ of habeas corpus based on ineffective assistance of counsel, Dr. Pezdek’s analysis supports the conclusion that trial counsel acted as a reasonably competent attorney, both in not moving to suppress the lineup, because the photo lineup was not unduly suggestive and therefore that motion would have been denied, and in not having Dr. Pezdek, or any other expert, testify at trial on the subject because that testimony would have included both the positive and negative aspects of the lineup. In short, trial counsel’s performance in this regard was not deficient as defendant Adair contends, and was a reasonable tactical choice under the circumstances. Stated in terms of prejudice, which defendant Adair also must show in order to demonstrate a claim of ineffective assistance of counsel, it is not reasonably probable that a motion to suppress the photo lineup would have been granted or that the jury would have reached a result more favorable to defendant Adair if expert testimony on eyewitness identification had been presented at trial.
Defendant Adair’s next allegation, that trial counsel should have pursued disclosure of James Green law's medical and psychological records, is equally insufficient. Although his discussion of the allegation is lengthy, defendant Adair does not add anything that was not addressed in his direct appeal. Instead, he makes the irrelevant argument that we cannot know what additional information would have been disclosed if trial counsel had pursued and obtained Green law's medical records. The assertion begs the dispositive question: What additional information did defendant Adair need to know about James Green law other than that disclosed at trial? We discussed the relevant issue in defendant Adair’s direct appeal and conclude here, as we did there, that the assertion lacks merit because defendant Adair has not identified any information he needed to know about James Green law's psychiatric condition that was not disclosed at trial. Nor has he demonstrated that the records in question would have contained that information. In other words, defendant Adair has not demonstrated that trial counsel’s performance was deficient and even if he had made that showing, defendant Adair has not established the requisite prejudice. The jury was fully apprised both of the fact and of the effect of James Green law's mental condition and it is not reasonably probable they would have reached a result more favorable to defendant Adair if additional information on that subject had been presented at trial.
The next allegation is that trial counsel’s performance was deficient because he did not present expert testimony on the effect chronic use of methamphetamine would have had on a witness’s credibility. Defendant Adair does not present the requisite evidence either, and instead apparently would have us assume that chronic use of methamphetamine would have a negative effect on a witness’s ability to perceive and recount events. Because he has not presented the necessary evidence to establish the critical fact, i.e., chronic drug use has a negative effect on witness credibility, we must reject his assertion that trial counsel’s performance was deficient. Defendant Adair has also failed to demonstrate prejudice. His showing on this point consists of speculation that “at least one properly informed juror would have been likely to find [defendant] not guilty of offenses in which the witnesses were a man suffering from hallucinatory schizophrenia who may have failed to take his prescription medications while abusing alcohol, and a woman [presumably a reference to Nicholl Rowe] whose methamphetamine use appeared to be chronic and severe.” In other words, defendant Adair would not only have us assume what the evidence would have been, but then also speculate about the effect that assumed evidence would have on a juror. Needless to say, defendant Adair has not made the pertinent showing and therefore we conclude that he has failed to make a prima facie showing that he was denied the effective assistance of counsel at trial.
Defendant Adair next alleges that during closing argument the prosecutor accused him of attempting to murder James Green law and also improperly vouched for Green law's credibility as a witness. The prosecutor did state during his closing argument that defendant Adair wanted James Green law “dead/tried to kill him.” He also stated that “James Green law was somebody [defendant Adair] wanted to borrow, use his car, take his life.” It occurs to us that the prosecutor’s statements may have been inadvertent and the result of confusing the victims of the two crimes, because earlier in his argument the prosecutor stated that the only mercy defendant Adair had “possibly extended was the fact that Green law was allowed to live. Robert Abraham wasn’t allowed to live. He fought for it.” Whether intentional or inadvertent, it is not reasonably probable the jury would have reached a result more favorable to defendant Adair if his trial attorney had objected and the jurors were admonished to disregard the prosecutor’s statements. First, the trial court instructed the jury that they must decide the case based on the evidence and, “Nothing that the attorneys say is evidence. In their opening statements and closing arguments the attorneys discuss the case, but their remarks are not evidence.” In addition, there was no suggestion in the evidence that defendant Adair had tried to kill James Green law The jurors most likely construed the prosecutor’s argument as a misstatement that resulted from his having confused the two victims, but even if they did not, the error was harmless given the trial court’s instruction.
As previously noted, defendant Adair also alleges that the prosecutor implied he had superior knowledge about the facts of the case and also effectively vouched for the truth of James Green law's testimony by arguing, “. . . [Y]ou’ve got to understand the sequence of events. They got -- law enforcement got the information about who it was -- who was doing this, that it was Hueto, David Adair, and then from that information, the photographic lineup, was compiled and then given to James Green law” Defendant Adair contends that the argument effectively states that law enforcement knew for certain that defendant Adair was committing these crimes and that suggestion had the effect of bolstering Green law's credibility as a witness. Although the quoted phrase can be interpreted in the manner defendant Adair suggests, that interpretation is not obvious. Moreover, even if we were to agree with the interpretation, and were to conclude that the argument was improper, defendant Adair has not demonstrated that he suffered prejudice as a result of the prosecutor’s phrasing. In short and simply put it is not reasonably probable the jury would have reached a result more favorable to defendant Adair if his trial attorney had objected to the noted argument and the trial court had admonished the jury to disregard the statement. Accordingly, we conclude that defendant Adair has not alleged facts sufficient to make a prima facie showing that he was denied the effective assistance of counsel because his trial attorney failed to object to purported misconduct committed by the prosecutor.
Next, defendant Adair alleges that he was denied the effective assistance of counsel because his trial attorney requested that the trial court instruct the jury according to CALCRIM No. 331. Defendant Adair contends, as his did in his appeal, that the instruction advised the jury that James Green law's “mental illness had no effect on his credibility, in that it did not make him more or less credible than another witness. This instruction virtually guaranteed [defendant Adair] would be convicted of the crimes of which Green law had accused him.”
We rejected defendant Adair’s characterization of CALCRIM No. 331 when he argued this same point in his direct appeal, albeit in the context of asserting prejudice as a result of the trial court denying his request for pretrial discovery of James Green law's psychiatric records. (See fn. 6, above.) As previously discussed, CALCRIM No. 331 instructs that the jury should not disregard or give less credibility to a witness solely because the witness has a mental impairment. Because we reject defendant Adair’s characterization of the jury instruction, we must also reject his ineffective assistance of counsel claim which is based on that characterization.
Defendant Adair’s remaining allegations relate to sentencing. First he contends that trial counsel was ineffective because he did not object on Sixth Amendment grounds when the trial court imposed an upper term sentence on count 2, defendant Adair’s carjacking conviction in which Robert Abraham was the victim. We addressed and rejected his claim on appeal that the upper term sentence violates his Sixth Amendment right to have a jury decide all disputed facts other than the fact of a prior conviction. Because we addressed the issue in his direct appeal, even though the objection was not raised in the trial court, we necessarily must conclude that trial counsel’s purported oversight was harmless. Moreover, the Supreme Court held in both Black II, supra, 41 Cal.4th at pages 810-811, and People v. Sandoval, supra, 41 Cal.4th at page 837, footnote 4, that an objection in the trial court is not required in order to preserve the issue for review on appeal. In other words, trial counsel’s performance was not deficient and therefore defendant Adair has failed to allege facts demonstrating a prima facie basis for relief.
Finally, defendant Adair alleges that trial counsel should have asserted an objection under the Eighth Amendment to the federal Constitution that the life sentence imposed on his conviction for kidnapping James Green law in the course of committing a carjacking constitutes cruel and unusual punishment. Defendant Adair acknowledges that there is no basis for such an objection under extant interpretations of the Eighth Amendment. He raises the claim merely to preserve the issue on the chance that the Supreme Court will change its course in the future.
In summary, we conclude that the factual allegations and supporting evidence do not demonstrate a prima facie case for relief based on ineffective assistance of counsel. Therefore, we will deny defendant Adair’s petition for writ of habeas corpus.
DISPOSITION
The judgment is affirmed as to defendant Arnott. Defendant Adair’s conviction on count 5 for carjacking is reversed, the charge is dismissed, and the judgment is modified accordingly. The trial court is directed to prepare an amended abstract of judgment that reflects the modified judgment.
Defendant Adair’s petition for writ of habeas corpus is denied.
We concur: Ramirez, P.J., Richli, J.