Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F00393
BUTZ, J.A jury convicted defendant Matthew James DeGroff of second degree murder (Pen. Code, § 187, subd. (a)) for shooting and killing his girlfriend in the home they lived in together. The trial court sentenced him to 40 years to life in state prison.
Undesignated statutory references are to the Penal Code.
On appeal, defendant claims pretrial statements he made were involuntary and thus admission of those statements violated his rights under the Fifth Amendment and Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda); his trial counsel was ineffective in failing to move to suppress those statements and in failing to adequately prepare the defense forensic expert for trial; and the cumulative error resulted in prejudice. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2007, defendant and his girlfriend, Renee Rose, were living together in defendant’s home. Two years prior, Rose had been living with her daughter, Rebecca Porter, and Porter’s husband, but was asked to leave when Porter’s husband discovered methamphetamine in her bedroom.
Defendant co-owned the home with his ex-girlfriend of four years, Sheree Henderson.
On January 11, 2007, Rose picked Porter and Porter’s two children up at the airport and drove them back to defendant’s house. Defendant was home but not feeling well. Rose fixed lunch for Porter and the children. At 1:45 p.m., Porter left with the children and headed to Stockton to visit a friend.
Shortly after leaving, Porter tried to reach Rose by telephone. There was no answer. Porter tried calling Rose’s phone again a few minutes later. This time, someone answered and quickly hung up without saying anything. Assuming Rose would call back, Porter went about her business.
At 1:55 p.m., defendant placed a call to 911 and told the dispatcher, “Hi, I just shot my girlfriend.” With emergency responders en route, defendant stayed on the telephone while dispatchers from the sheriff’s and fire departments tried to help him render assistance to Rose. When asked which part of Rose’s body was injured, defendant responded, “I—I don’t know. She was in my face. (Unintelligible) started (unintelligible) fight. Two nights ago she pulled a knife on me.” Defendant did not mention during the 911 call that Rose had a knife at the time of the shooting. Once emergency responders arrived, defendant complied with the dispatcher’s instruction to step outside with his hands in the air. As he walked out of the house, he told Sheriff’s Deputy Karl Griffiths, “she came at me with a knife.” Law enforcement officers took defendant into custody. Griffiths and several other officers went inside the house and found Rose lying on the bedroom floor beside the bed, covered in blood. She was alive but unconscious. Rose later died as a result of her injuries. Among other things, Deputy Brian Templeton found a handgun and some ammunition. Deputy Griffiths did not observe any knives at the scene.
Deputy Griffiths testified that he did not do a specific search for knives.
Detective John Linke interviewed defendant at the sheriff’s office approximately two and a half hours after defendant placed the call to 911. The interview began as follows:
“LINKE: Hi. I’m John—ooh; oh
“[DEFENDANT]: I’m
“LINKE: —I’m sorry.
“[DEFENDANT]: —sorry; I’m bloody.
“LINKE: Okay. You know, I normally would, obviously, but I see that your hands are a little messed up there. Okay. Um, do you go [b]y Matt or Matthew?
“[DEFENDANT]: Matthew.
“LINKE: Okay. Is that—you prefer I call you Matthew?
“[DEFENDANT]: Huh? Yeah.
“LINKE: Okay. Matthew, my name is John. I actually prefer if you call me that. Okay?
“[DEFENDANT]: Okay.
“LINKE: It’s just going to be you and I talking. All right?
“[DEFENDANT]: All right.
“LINKE: It just makes it actually—I want, uh—what I would like to do is—I know, um, something happened today, obviously; that’s why you’re down here. Okay? And a couple things I just want to tell you real quick is, um, I know there’s always two sides to every story. Okay? I been doing this job for a long time. Okay? And also being a detective, now, right, I can tell you that domestic situations, I’ve learned from experience, all right, are some of the most difficult things, the most stressful, right, in
“[DEFENDANT]: Yeah.
“LINKE: —many, many different ways. Okay? I’m not saying that’s the case here. I’m not putting words in your mouth. But I want to get your side of what happened today. Okay? One thing I want to start off by saying, um—uh, you are under arrest. Okay? Do you understand that?
“[DEFENDANT]: (No audible response.)
“LINKE: Huh?
“[DEFENDANT]: Yes.
“LINKE: Okay. As we’re talking here, um, it—it’s obvious to me that you—you look shaken up. Okay? As, um—as we’re talking, if you could look at me and try to open—speak as openly as you can, all right, um, and then we’ll go from there. Like I said, it’s just going to be you and I talking. Before I talk to you, though, I need to advise you of your rights. Okay?
“[DEFENDANT]: Okay.
“LINKE: Okay. You have the right to remain silent. Do you understand?
“[DEFENDANT]: Yes.
“LINKE: Anything you say may be used against you in court. Do you understand?
“[DEFENDANT]: Yes.
“LINKE: You have the right to the presence of an attorney before and during any questioning. Do you understand?
“[DEFENDANT]: Yes.
“LINKE: If you cannot afford an attorney, one will be appointed for you free of charge before any questioning if you want. Do you understand that?
“[DEFENDANT]: Yes.
“LINKE: Okay. Does your girlfriend—how does she pronounce her first name?
The interview was recorded and concluded after approximately two and one-half hours.
Defendant was charged by amended complaint deemed the information with murder (§ 187, subd. (a)—count one), possession of an assault weapon (§ 12280, subd. (b)—count two), possession of a short-barreled shotgun (§ 12020, subd. (a)—count three), and possession of a shotgun which did not bear the manufacturer’s number and other mark of identification (§ 12094—count four). The information alleged that, in the commission of count one, defendant intentionally and personally discharged a firearm proximately causing the death of Rose (§ 12022.53, subd. (d)) and personally used a firearm (§ 12022.5, subd. (a)(1)).
Chief Forensic Pathologist Mark Super performed the autopsy on Rose the day after she was killed. Dr. Super testified that Rose was normally developed and adequately nourished for a 39-year-old woman. She had no needle tracks on her body, and no lesions that would indicate she had been picking or scratching her skin. Rose had one gunshot wound to her face, with a trajectory “very slightly from her right to left and very slightly upward” approximately 10 to 20 degrees. According to Super, that type of wound would have caused the victim to become immediately unconscious, fall down, and then ultimately die. The second gunshot wound was to Rose’s chest, with a trajectory from left to right and downward at approximately 45 degrees.
Criminalist Bruce Moran testified that the first gunshot wound to Rose’s face was fired from a distance of six inches to two feet. Rose would immediately have lost consciousness and fallen to the floor. Moran opined that the second gunshot was fired from a distance of six inches to three feet and, according to the pattern of blood, was likely fired while Rose lay on the floor on her side.
Defense witness Jeremy Zerbe, a criminalist with the County of Sacramento, testified that Rose’s blood contained 0.29 milligrams per liter (mg/l) of methamphetamine, and 0.07 mg/l of amphetamine. He did not consider either level to be toxic, but did conclude that 0.29 mg/l was “indicative of abuse.” Zerbe testified regarding the effects of methamphetamine on the central nervous system, often causing one to have a fight-or-flight response, that is, the body reacts in such a way as to prepare “for defending yourself or running away.” Zerbe also testified that methamphetamine, being a stimulant, can be associated with irritability and aggressive behaviors.
Forensic psychiatrist Dr. Gregory Sokolov testified for the defense regarding the level of methamphetamine in Rose’s system at the time of the shooting and the negative effects of short- and long-term methamphetamine use on the body.
Defendant testified that he worked for Hewlett Packard (HP) for approximately six years and ran his own computer business on the side for extra income. In September 2006, he was laid off from HP and given three months’ severance pay. Defendant has practiced martial arts since the age of 10 to 12, and is a second degree black belt in Tae Kwon Do. He started shooting guns at the age of 13 or 14. In April 1998, he purchased a handgun for home protection. Defendant was trained in shooting, including classes in defensive shooting where he was taught to “fire twice in rapid succession” even when not aiming.
Defendant met Rose in October 2005, and she moved into his home several months later. Rose eventually quit her job, obtained another job for less than a month and again became unemployed. Despite her efforts, she was unable to find another job. According to defendant, Rose felt frustrated because she was unable to contribute to the household.
Defendant testified that, in June or July of 2006, Rose’s behavior began to gradually change, becoming more erratic and sometimes irritable. She became increasingly depressed and was more “physically aggressive” toward him, sometimes hitting and kicking him during arguments.
Several days prior to the shooting, defendant took Rose to the shooting range. When they returned home, he put the clip back in his handgun and placed it on the nightstand, leaving it there to be cleaned. He could not recall whether or not he left a round in the chamber.
Two days prior to the shooting, Rose had been depressed and cried all day. That evening, she and defendant had an argument in the bedroom. When defendant rebuffed her sexual advances, “it was like a switch went off.” Defendant testified that Rose “turned around, went directly to [his] knives, grabbed a knife, opened it up and came at [him]” with a “wild” look of anger on her face. Defendant grabbed Rose’s wrist, got behind her and tried to force her to drop the knife. He yelled for his daughter, Maegan DeGroff, intending for her to call the police; however, his daughter was in the shower. Rose said, “Why do you have to bring Maegan into this, ” and dropped the knife. She grabbed her purse and walked out of the house. When she returned several hours later, she acted as though the incident had never happened.
Defendant testified that he collected knives and kept many of them in the house, including a handmade short sword.
Defendant testified that on January 11, 2007, Porter and the grandchildren returned with Rose from the airport, finished lunch and left. Defendant told Rose he was going to call his father and wanted to “run some things by her and see what she thought” before he did. Within minutes, the conversation escalated into an argument and Rose began “ranting and yelling” at defendant and hitting him on the chest. The argument continued in the bedroom, where defendant grabbed Rose, told her to stop hitting him and pushed her back a few steps “to get some space.” Defendant went to his side of the bed and sat down “to take a break to get a breather.” Out of the corner of his eye, he saw Rose approaching with a knife. She was yelling obscenities at him. Defendant picked up the handgun that was still sitting on his nightstand, pointed it at Rose and said, “we’re not gonna do this again.” Rose quietly stared at defendant with an “empty, disturbing type stare” and, after a few seconds, she put the knife down on the desk and went back around to her side of the bed. Defendant got up, picked up the knife, along with another knife that was on the dresser, and put them both in his pocket. Rose was bent over and appeared to be rummaging through her nightstand or her purse. Defendant testified that, as he walked to within a couple of feet of her and asked her to talk with him, Rose “squatted down and lunged at [him], charged at [him]” with a “cold, angry, wild type of look” on her face. Defendant held his arm out straight and fired the gun twice and then “saw [Rose] on the ground and, uh, there was blood.” He realized the gun was still loaded, put it down and ran into the other room to call 911. Defendant tried to render assistance to Rose, then, when the 911 operator told him to exit the house, he emptied his pockets, placed the contents in the nightstand, picked up his identification and walked out of the house, where he was taken into custody.
Defendant testified that he held the gun “straight out parallel to the floor.”
Sheree Henderson testified for the defense regarding defendant’s good character and reputation. She testified that defendant was “peaceful and generous” and “not a violent person.” Henderson also testified that she went into defendant’s house the day after the shooting and found Rose’s purse, which contained a sunglass case “filled with crystal meth pipes, paraphernalia.”
Defense witness Merle Baker testified that Rose and her then husband, Mike, lived across from Baker for approximately seven years. Baker observed Rose to be young, social, nice looking and healthy when she first moved in. Over time, and particularly during the last two years there, “she started to lose weight. Her complexion changed.” She had lots of acne on her face and “didn’t look like she kept herself like she used to.” Baker said Rose’s disposition went from “a very nice, social neighbor to, I can’t say antisocial because she did have her friends, but not a good neighbor.”
Defendant’s 18-year-old daughter Maegan testified that Rose was “really hyperactive, sometimes irrational, kind of jumpy, ” and she “was always really skinny” and had bad skin. According to Meagan, Rose instigated fights with defendant.
A jury found defendant guilty of second degree murder, and found both enhancements true. The trial court sentenced defendant to 15 years to life on count one, plus a consecutive term of 25 years to life on the discharge of a firearm enhancement, for an aggregate term of 40 years to life in state prison. Defendant filed a timely notice of appeal.
DISCUSSION
I. Admission of Pretrial Statements
Defendant claims pretrial statements he made to Detective Linke during the interview were inadmissible under the Fifth Amendment and Miranda because he did not voluntarily waive his right to remain silent or to have an attorney present during interrogation. He further claims his counsel rendered ineffective assistance in failing to move to suppress those statements.
Defendant did not object at trial to admission of his pretrial statements to Detective Linke. “The general rule is that a defendant must make a specific objection on Miranda grounds at the trial level in order to raise a Miranda claim on appeal.” (People v. Mattson (1990) 50 Cal.3d 826, 854, quoting People v. Milner (1988) 45 Cal.3d 227, 236; People v. Rogers (1978) 21 Cal.3d 542, 548.) “[A] claim of involuntariness generally will not be addressed for the first time on appeal.” (People v. Ray (1996) 13 Cal.4th 313, 339.) In any event, his claims fail on the merits.
A. Voluntariness of Defendant’s Statements
A Miranda waiver can be express or implied. (North Carolina v. Butler (1979) 441 U.S. 369, 373 [60 L.Ed.2d 286, 292]; see, e.g., People v. Whitson (1998) 17 Cal.4th 229, 246, 247-248, 250.) Courts properly imply waiver where the officers read the Miranda admonition, the suspect acknowledges that he or she understands, and the suspect responds to the officers’ questions. (See, e.g., People v. Sully (1991) 53 Cal.3d 1195, 1233; People v. Davis (1981) 29 Cal.3d 814, 823-826.)
It is well settled that “a suspect who desires to waive his Miranda rights and submit to interrogation by law enforcement authorities need not do so with any particular words or phrases. A valid waiver need not be of predetermined form, but instead must reflect that the suspect in fact knowingly and voluntarily waived the rights delineated in the Miranda decision.” (People v. Cruz (2008) 44 Cal.4th 636, 667.) “[U]ltimately the question becomes whether the Miranda waiver was knowing and intelligent under the totality of the circumstances surrounding the interrogation.” (Id. at p. 668.)
“The litmus test of a valid waiver or confession is voluntariness. ‘The relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.’ [Citation.] No single event or word or phrase necessarily determines whether a statement was voluntary. The answer must be derived from the totality of the facts and circumstances of each case, keeping in mind the particular background, experience and conduct of the accused.” (People v. Kelly (1990) 51 Cal.3d 931, 950.)
The issue of a waiver is a factual question to be determined by the trial judge, whose ruling will not be disturbed on appeal where it is supported by substantial evidence. (People v. Brockman (1969) 2 Cal.App.3d 1002, 1008.)
Detective Linke interviewed defendant at the sheriff’s office. There were no other law enforcement personnel present. Linke introduced himself, told defendant he understood there are “always two sides to every story” and that “domestic situations... are some of the most difficult things, the most stressful.” Linke said he did not want to put words in defendant’s mouth, but rather that he wanted to get defendant’s “side of what happened today.” He told defendant he was under arrest and advised him of each of his Miranda rights, asking defendant if he understood each one. Defendant answered freely and unequivocally “Yes” to each admonishment. There was no “lengthy interrogation or incommunicado incarceration” before defendant’s statements were made, nor is there evidence suggesting that defendant was either “threatened, tricked, or cajoled into a waiver” (Miranda, supra, 384 U.S. at p. 476 [16 L.Ed.2d at pp. 724-725]) or that Linke’s brief discussion with defendant “overbore defendant’s free will” (People v. Gurule (2002) 28 Cal.4th 557, 602). The circumstances demonstrate that defendant’s waiver was valid and his statements voluntary.
Defendant’s background, experience and conduct also support that conclusion. At the time of the shooting, defendant was a 37-year-old, well-educated, English-speaking individual. He had earned multiple degrees, worked as a network engineer at HP for about six years, and ran a successful computer company on the side. He answered Detective Linke’s questions without hesitation, asked for clarification when he did not understand a question, and was able to adequately articulate his story in great detail in spite of being somewhat emotional.
Defendant told Detective Linke, “I have three fucking degrees.”
Defendant contends Detective Linke’s casual, friendly, nonintimidating conversation with him is equivalent to the “conversation-warning-interrogation sequence” that was condemned in People v. Honeycutt (1977) 20 Cal.3d 150, 158-161 (Honeycutt). We disagree.
In Honeycutt, the investigating officer, an old acquaintance of the defendant, who was arrested for suspicion of murder, transported the defendant to the police station and engaged in a brief exchange during the trip. (Honeycutt, supra, 20 Cal.3d at pp. 154, 158.) Once at the station, but prior to giving Miranda warnings, the officer engaged the defendant in a half-hour conversation during which they discussed unrelated past events, former acquaintances and the victim, who the officer mentioned had been a suspect in a homicide case and was thought to have homosexual tendencies. (Id. at p. 158.) The defendant eventually expressed a willingness to talk about the murder and only then was the Miranda admonishment given. (Ibid.) The officer admitted at the Miranda hearing that his intent in initiating the conversation with the defendant was to soften the defendant up and get him to talk. (Ibid.) The defendant argued that the waiver of his rights was neither knowing nor voluntary. (Id. at p. 159.) The Supreme Court agreed and held that, “When the waiver results from a clever softening-up of a defendant through disparagement of the victim and ingratiating conversation, the subsequent decision to waive without a Miranda warning must be deemed to be involuntary....” (Id. at p. 160.) The court recognized “that routine booking questions and responses as to a defendant’s identity and other statistical information do not render involuntary a later waiver of constitutional rights, ” but emphasized the fact that, under these circumstances, “the conversation-warning-interrogation sequence was intended to elicit a confession from the inception of the conversation.” (Id. at p. 159.)
There are few, if any, similarities between this case and Honeycutt. Here, defendant was transported to the sheriff’s office by another officer and spent no time at all with Detective Linke prior to the interview. Once the interview began, Linke introduced himself, but did not discuss anything specific about the case other than to indicate that he understood it was a “domestic situation[].” Linke told defendant he was under arrest and advised him of each of his rights. Defendant responded affirmatively that he understood each of those rights. From that point on, Linke asked defendant questions and defendant chose to answer them. Linke did not threaten, trick or cajole defendant prior to giving him the Miranda warnings. We therefore conclude that, under the totality of the circumstances, defendant’s statements were voluntary.
B. Claim of Ineffective Assistance of Counsel
Defendant insists that the failure of his trial counsel to move to suppress the pretrial statements amounts to ineffective assistance. We do not agree.
A defendant claiming ineffective assistance of counsel has the burden to show: (1) counsel’s performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms; and (2) the deficient performance resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674, 693-694] (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216, 218 (Ledesma).) That is, “there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been different.” (People v. Kelly (1992) 1 Cal.4th 495, 520 (Kelly).)
“‘Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.”’ [Citations.] ‘[W]e accord great deference to counsel’s tactical decisions’ [citation], and we have explained that ‘courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight’ [citation]. ‘Tactical errors are generally not deemed reversible, and counsel’s decisionmaking must be evaluated in the context of the available facts.’” (People v. Weaver (2001) 26 Cal.4th 876, 925-926.)
The record provides ample support for a reasonable tactical decision not to move to suppress defendant’s pretrial statements. It is likely counsel assessed her chances of winning such a motion to be slim, given the absence of any threats, trickery or cajoling by Detective Linke, and defendant’s clear, unequivocal responses indicating he understood each of his Miranda rights. Indeed, counsel may well have concluded that defendant’s statements, on the whole, actually might work to his advantage. During the interview, defendant admitted shooting Rose but maintained throughout that it was unintentional. His explanations about Rose’s change in behavior were consistent with his testimony at trial, as was his story that Rose had pulled a knife on him two nights prior to the shooting. The fact that he forgot the name of his ex-girlfriend of four years during the interview might also have been helpful to explain that any differences between his trial testimony and his pretrial statements might have been attributable to his confused and forgetful state of mind several hours after the shooting. A tactical decision to let the jury hear the pretrial statements would be reasonable.
Even so, defendant failed to demonstrate that the result of the trial would have been different had counsel moved to suppress the statements. The recorded 911 call contained statements by defendant that Rose pulled a knife on him two nights prior to the shooting, but nothing about her having a knife at the time of the shooting. Contrary to defendant’s trial testimony that Rose lunged at him from a crouching position, the forensic expert’s testimony tended to show that defendant shot Rose once in the face while she was standing, and once in the chest while she was lying on the floor. Two recorded jailhouse conversations likely undermined defendant’s credibility as well. The first, a conversation between defendant and a woman named Shauna Momeyer, contained statements by defendant that he “didn’t tell ’em [(the police)] everything” about the shooting. The second, a conversation between defendant and his daughter, contained statements by defendant that, “Um, I need to wait and see the toxicology report. ‘Cause if she [Rose] was on—if she was on meth, then... I can pretty much say what—you know, whatever the hell I want.... Because that would—that would explain all the erratic behavior.” Even assuming counsel was ineffective, based on the evidence, it is not reasonably probable that, but for counsel’s unprofessional errors, the result would have been different. (Kelly, supra, 1 Cal.4th at pp. 519-520.)
II. Preparation of Defense Forensic Expert
Defendant contends his trial counsel rendered ineffective assistance as a result of her failure to adequately prepare defense forensic expert Dr. Sokolov for trial. In particular, defendant claims that, as a result of his counsel’s failure, Dr. Sokolov’s testimony was “undermined by his misunderstanding of Renee Rose’s methamphetamine blood concentration level and his incorrect understanding of the level of methamphetamine found in a person’s blood necessary to constitute a high or life-threatening concentration.”
As previously explained, defendant has the burden to show his counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms, and that there is a reasonable probability that, but for counsel’s error, the result would have been different. (Strickland, supra, 466 U.S. at pp. 687-688 [80 L.Ed.2d at pp. 693-694]; Kelly, supra, 1 Cal.4th at pp. 519-520; Ledesma, supra, 43 Cal.3d at pp. 216, 218.) Defendant has not met his burden.
At trial, Dr. Sokolov testified that he reviewed the coroner’s toxicology report and a letter written by toxicologist Jeffery Zehnder of Drug Detection Laboratories, Inc., as well as law enforcement and investigative reports, medical records and witness statements. Sokolov testified that, with long-term use of methamphetamine, people can become psychotic. Users often develop skin lesions due to repeated scratching and picking, poor hygiene and lack of nutrients from a poor diet. Long-term effects include aggressive or violent behavior and mood disturbance. Sokolov testified that, according to Zehnder’s toxicology report, Rose’s blood contained “.029 milligrams per liter” of methamphetamine. He noted that “.02 is considered very high” and that “many toxicologists will say these are levels that are consistent with abuse.” Defense counsel then asked, “And you said.02 was a very high level or was it.2?” Sokolov answered, “.02, using this milligrams per liter. Now, there are other—there are other equivalent scales that would make that.2. But if we’re going to stick with this, it would be.02.” The following colloquy ensued:
Zehnder’s letter actually stated that the concentration of methamphetamine in Rose’s blood was “0.29 mg/l.”
“[DEFENSE COUNSEL]: Let me ask you what that level tells you, that.29 as an indication of chronic use? [¶]... [¶] “THE COURT: For clarification. It’s.029 using his—using his report, that toxicology report?
“[DEFENSE COUNSEL]: Yeah. The level is.29, 0.29; is that right?
“[SOKOLOV]: It’s.029 milligrams per liter. Just so that we’re on the right measurement.
“[DEFENSE COUNSEL]: All right. That level?
“[SOKOLOV]: Yes.
“[DEFENSE COUNSEL]: What does that tell you in terms of the chronic use of the person that was suffering with that level?
“[SOKOLOV]: What it tells me, just on that level alone, is that that’s a high level. And that toxicologists have determined that a level that high is likely consistent with somebody that’s been using the drug a long time. [¶]... [¶]
“[DEFENSE COUNSEL]: Okay. And let me ask you about rapid mood swings. Does that occur, like a switch going on?
“[SOKOLOV]: It can. It can. Again, it’s a stimulant. So if somebody has an underlying mood disturbance and they use a stimulant, it’s like putting kerosene on fire. It will ignite that mood instability even more.
“[DEFENSE COUNSEL]: Let me just give you a couple of description[s] and ask you if they’re consistent with what you’ve told us about methamphetamine abusers. [¶] Like a switch goes on, a certain look in a person’s eye, that that person just goes off, that they’re almost bipolar, are those things that are consistent with methamphetamine abuse?
“[SOKOLOV]: Uh, they can be, yes. Those are laypersons’ observations of what we, as psychiatrists, look for for psychosis for some type of possible mania or something like that.
“[DEFENSE COUNSEL]: I’d like to give you a hypothetical, Doctor, and it’s a little bit long, so my apologies. [¶] But I’d ask you to assume that in the year 2001 a subject undergoes a physical change. She loses weight. Her skin changes as if she’s got bad acne. She stops interacting with neighbors. She goes through a marital separation and divorce. Then in 2005, in May, that subject’s living with her daughter and husband and a young child. She’s caught with methamphetamine. She’s confronted and she runs off. Two days later she returns and apologizes and promises not to use again. Three months after that she’s again caught by the daughter possessing methamphetamine in that daughter’s home, and she’s thrown out of the house. And then, finally, in January of 2007, she’s found with a blood level of.029 methamphetamine. She’s driving under the influence when she’s got grandkids in the car. She has paraphernalia that you’ve looked at. And she has crystal meth, old crystal meth baggies in her car. [¶] In your opinion is that person a chronic sustained user of methamphetamine?
“[SOKOLOV]: Based on those facts, yes.
“[DEFENSE COUNSEL]: And is the following consistent with your assessment in terms of being chronically—a chronic user of methamphetamine. [¶] Overreaction to stimuli, a confused panicky state leading to sudden acts of violence, would those things happen, are they consistent?
“[SOKOLOV]: Yes.”
Sokolov also replied “Yes” when the prosecutor next cross-examined him and asked, “Did you say it’s.029 milligrams per liter?” and, “You sure that’s not.29 milligram [per] liter?” Sokolov responded, “I have the letter from Jeff[ery] Zehnder where it’s referred to as.029 [milligrams per liter].” The prosecutor then asked, “Now, wouldn’t.029 milligrams per liter be a pretty low dose, .029 milligrams per liter?” Sokolov replied, “The—I don’t have the original letter by Mr. Zehnder. But the level that he reports, and he’s a toxicologist, so he sees much greater levels than I do, is in his opinion consistent—a high dose, and considered to be in the realm of abuse of the drug. [¶] So I’m referencing his report and that level.” Sokolov also testified that while people who use methamphetamine long term may behave normally, they “can still get psychotic, have mood disturbances and be agitated.”
Defendant implies that his counsel failed to review Dr. Sokolov’s testimony with him in advance. However, neither defendant nor the record provide any evidence to support that allegation. To the contrary, Sokolov testified that he reviewed the coroner’s toxicology report; the letter written by Zehnder, the toxicologist; law enforcement and investigative reports; and the medical records and witness statements, all of which presumably were provided to him by defense counsel. Sokolov’s own report states that the toxicology report “revealed a methamphetamine blood level of.29 [mg/l], ” making clear that Sokolov did indeed read the report, even if his testimony mischaracterized it with respect to the concentration of methamphetamine.
Defendant also claims that, once it became clear that Dr. Sokolov was confused or mistaken about the concentration of methamphetamine found in Rose’s blood, defense counsel should have attempted to rehabilitate him by “act[ing] decisively, ” but instead “drop[ped] hints that had the effect of magnifying the prejudice.” However, not only does defendant leave us in the dark as to how defense counsel should have acted decisively to cure the error, but he also correctly notes that even the trial court’s inquiry seeking clarification on the issue of methamphetamine concentration in Rose’s blood rendered an erroneous response from Dr. Sokolov. Thus, it appears that in spite of defense counsel’s preparation efforts and efforts to rehabilitate Dr. Sokolov, there was no disabusing him of his belief, albeit incorrect, that the toxicology report reflected a methamphetamine concentration of.029 mg/l rather than 0.29 mg/l.
Even assuming defense counsel could have corrected Dr. Sokolov’s misunderstanding, we are not convinced it would have made any difference. Regardless of Rose’s actual blood concentration level, Dr. Sokolov maintained throughout his testimony that the concentration of methamphetamine (whatever he understood that to be) found in Rose’s blood was considered to be high and was likely consistent with chronic, long-term use such that she could have been suffering from psychosis, mood disturbance, agitation and even violence at the time of the shooting.
Defendant also had the benefit of Criminalist Zerbe’s testimony confirming that the concentration of methamphetamine in Rose’s blood was 0.29 mg/l, an amount that is “indicative of abuse, ” and the testimony of defense witnesses Henderson, Baker and defendant’s daughter Maegan regarding the gradual changes in Rose’s behavior and appearance.
The evidence in the record suggests that while Dr. Sokolov may have misunderstood the information in Jeffery Zehnder’s toxicology report, there is no evidence that his misunderstanding was the result of a failure of defense counsel to either prepare him for trial or to rehabilitate him on the stand. Even if there was evidence that counsel was ineffective, there is not a reasonable probability that, but for counsel’s error, the result would have been different.
III. No Cumulative Error
Defendant claims he suffered prejudice as a result of the cumulative errors urged herein. Given our adverse disposition of defendant’s first two claims, we reject this claim as well.
DISPOSITION
The judgment is affirmed.
We concur: RAYE, P. J. BLEASE, J.