Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FBV3863. Ronald M. Christianson, Judge.
Marianne Harguindeguy Cox, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
On the day of President George W. Bush’s second inauguration, defendant Jeffrey Joseph Gendreau shot up the mobile home park where he lived. He used up most of a box of 50 bullets, firing more or less aimlessly. However, when the manager of the mobile home park asked him what he was doing, he briefly denounced Bush, then shot the manager four times. He told police, “‘I killed him and I’m not sorry.’” (Actually, the manager was seriously wounded, but not killed.) Previously, defendant and the manager had always gotten along.
Defendant explained that he had a history of mental illness, including delusions and hallucinations. Immediately before the shooting, he heard his dead brother telling him to fire his rifle out of the door of his trailer; however, he did not remember leaving his trailer or shooting the manager. An expert witness confirmed that defendant had schizoaffective disorder, which can involve delusions.
A jury found defendant guilty of attempted murder. (Pen. Code, §§ 187, subd. (a), 664, subd. (a).) However, it declined to find that the attempted murder was willful, deliberate and premeditated. (See Pen. Code, § 664, subd. (a).) An enhancement for personally and intentionally discharging a firearm and causing great bodily injury was found true. (Pen. Code, § 12022.53, subd. (d).) An enhancement for personally inflicting great bodily injury was also found true. (Pen. Code, § 12022.7, subd. (a).) Defendant was sentenced to 32 years to life in prison.
Defendant now contends that:
1. There was insufficient evidence that defendant had the specific intent to kill.
2. Defendant’s trial counsel rendered constitutionally ineffective assistance by conceding that defendant was guilty of unpremeditated attempted murder.
3. The trial court erred by failing to instruct that evidence of mental illness was relevant to whether defendant had the specific intent to kill.
4. The trial court erred by failing to instruct on unconsciousness.
We find no error. Hence, we will affirm.
I
FACTUAL BACKGROUND
A. Prosecution Evidence.
Defendant lived in a mobile home park in Big Bear. Victim Nathan Steinbacher was the on-site manager of the mobile home park. He and defendant had a “cordial” relationship; from time to time, they played poker, along with other residents.
On January 20, 2005, around 4:45 p.m., a witness saw defendant at the mobile home park firing a rifle “into the snow.”
At the same time, Steinbacher and his father were fixing a furnace in the recreation room. They heard what they thought were firecrackers. Steinbacher walked outside and saw defendant walking toward him. Defendant was holding a rifle. It was pointed toward the ground, and he was reloading it.
Steinbacher asked him what he was doing. It was Inauguration Day; defendant said “something about Bush being... re-elected and that Bush was bad and that Bush was going to end the world.”
When they were five or six feet apart, defendant raised the rifle and shot Steinbacher. The bullet struck him in the left upper lip and lodged in his neck. Steinbacher turned and started to run. As he did so, defendant fired at least three more shots, striking Steinbacher in the left shoulder, the right elbow and the right forearm. Steinbacher’s radial nerve was severed, and he lost much of the use of his right hand.
A police officer dispatched in response to a “shots fired” call found defendant walking through the trailer park, holding a rifle. The officer drew his gun and ordered defendant to drop the rifle. Defendant said, “[O]kay, cop,” and put the rifle down in a snow bank. The officer then arrested him.
Defendant volunteered, “‘I killed the manager in the mother[-]fucking office.’” He then said, “‘I’ll shoot him, too,’” referring to an older man (possibly Steinbacher’s father) standing nearby. Later, defendant said, “‘[H]e’s dead, I used hollow[-]point Stinger rounds.’” He also said, “‘I killed him and I’m not sorry.’”
In general, defendant was compliant. However, when asked where he lived, he refused to answer, saying “[he] did not want anybody to know.” When asked his date of birth, he said it was November 1, then added, “‘All Saints’ Day, all you had to do was read a fucking calendar.’” Also, when asked what he wanted the police to do with his dog, he told them to take it to a particular animal hospital, then added, “‘ [T]hey better take care of it or [I]’ll fuckin’ level that place, too.’” His demeanor was “[m]atter of fact, but angry.” Two officers who observed him both agreed that he appeared to be “lucid” and not delusional or hallucinating.
Defendant’s rifle was a.22-caliber semiautomatic; it could hold up to 16 bullets, plus one in the chamber. Inside defendant’s trailer, investigating officers found an empty box for 50 Stinger hollow-point.22-caliber bullets. Eventually, they managed to account for all 50. They found 31 fired shell casings and 19 live rounds.
There were some shell casings and live rounds on the floor just inside the door of defendant’s trailer. There were more shell casings and live rounds in a deck area in front of defendant’s trailer. Still more shell casings and live rounds were found in the roadway leading from defendant’s trailer to the mobile home park office.
Ten bullets had hit a white truck; some of these, after passing through or ricocheting, also hit a nearby garage wall. One bullet hit an unoccupied trailer. One hit a fence. There were four live rounds left in the rifle, and defendant had eight live rounds in his pocket.
A test of defendant’s blood was negative for alcohol.
B. Defense Evidence.
Defendant testified in his own behalf.
Defendant had been an alcoholic since he was 15, but he had quit drinking in 1988, with only brief relapses in 1992 and 1998. He had also used marijuana, cocaine, LSD and a “[l]ittle bit” of methamphetamine. Sometimes, he had had blackouts.
While in the Army, in the late 1970s or early 1980s, defendant was hospitalized for depression, delusions and hallucinations. During this time, he had memory lapses. After he left the military, he was treated at a veteran’s hospital for delusions and paranoia.
In late 2004, defendant was treated for depression and anxiety. On the day of the of the Indian Ocean tsunami, he had a hallucination in which he was playing a game in an undersea cavern, killing monsters. After he used a “special weapon,” “like a nuclear weapon,” to kill the last monster, he “felt like something really terrible happened.” He turned on the news just as the first reports of the tsunami were coming in. He believed that he had caused it.
This date was not actually stated at trial; however, as jurors may well have known, it was December 26, 2004. We take judicial notice of the date.
In early January 2005, defendant felt light-headed and faint. He was taken by ambulance to a hospital emergency room, treated and released. At times during this experience, he “blacked out”; for example, he could not remember calling 911 or riding to the hospital.
On January 19, 2005, the night before the shooting, defendant had a hallucination in which his dead brother appeared to be a character in a video game.
Immediately before the shooting, defendant heard his dead brother’s voice: “He was agitated, angry. He wanted me to secure a time piece or watch that was supposed to be delivered to me. And he was yelling at me, telling me that they were calling our bluff. And that I needed to do something about it. And if I didn’t, his... 101st [A]irborne army of the dead would take care of it.... [¶]... And he was telling me to... fire the weapon. And make them believe... that we weren’t kidding around. That’s when I fired the shots out the door.” Defendant added: “I didn’t really want to, but... I couldn’t help myself. It was like my mind was there, but my body was controlled by something else. I just had... no free will.”
The next thing defendant knew, he was in the back of a police car. He did not remember leaving his trailer, seeing Steinbacher or shooting him. He did not remember hearing any voices telling him to shoot Steinbacher. He did remember talking about President Bush, but he did not remember making any of the other statements attributed to him.
Defendant denied intentionally shooting Steinbacher. He testified that he had “no animosity towards [Steinbacher] at all for any reason.”
Dr. Marjorie Graham-Howard an expert forensic psychologist, testified for the defense. In her opinion, defendant suffered from schizoaffective disorder, along with cannabis abuse. Schizoaffective disorder combines depression with symptoms of schizophrenia, such as hallucinations, delusions and disordered thinking. Cannabis abuse would not cause mental illness, though it could make it “more problematic”; it can be a form of self-medication.
Defendant had a history of mental illness, along with drug and alcohol problems, dating back to 1978 or 1979. However, his more recent medical records, from 2004 and 2005, did not indicate any mental health issues other than depression and anxiety.
When defendant was first arrested and jailed, he did not appear to have any mental health issues. Indeed, he specifically denied that he was having hallucinations. A day or two later, however, he reported auditory hallucinations. He appeared to be psychotic and paranoid; he was combative toward deputies.
Defendant’s statements to Dr. Graham-Howard were generally consistent with his testimony, except that he did not tell her he had had any memory lapses prior to the crime.
Dr. Graham-Howard conceded that defendant was not legally insane. She was not able to come to a conclusion as to whether he had been experiencing “diminished actuality.” She defined this as whether “there was some significant mental health impairment that prevented them from being able to form a particular type of thinking necessary for certain... crimes.”
In her opinion, defendant was not malingering. He had “legitimate mental health problems,” although he did appear “motivated to use that as a way of explaining his behavior at the time [of] the crime....”
II
THE SUFFICIENCY OF THE EVIDENCE OF INTENT TO KILL
Defendant contends that there was insufficient evidence of the specific intent to kill. We disagree.
“‘“To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.”’ [Citation.] The pertinent inquiry is ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citation.]” (People v. Romero (2008) 44 Cal.4th 386, 399.)
Here, immediately after the shooting, defendant stated, “‘I killed him and I’m not sorry.’” He also stated, referring to an innocent bystander, “‘I’ll shoot him, too.’” He used hollow-point bullets, the only purpose of which is to cause more severe injuries or death. Despite his claim of mental illness, he was aware that he had just shot a person and that that person was Steinbacher. Admittedly, he implied that he was just firing randomly, in response to a command hallucination, to show that he “w[as]n’t kidding around.” However, this was rebutted by the fact that he shot Steinbacher four times, tracking him while he was running away, and thus evidently targeted him. Dr. Graham-Howard conceded that defendant was not legally insane at the time of the crime, which necessarily meant that he understood the nature and quality of his act. (See Pen. Code, § 25, subd. (b); People v. Lawley (2002) 27 Cal.4th 102, 170.)
This was more than ample evidence of intent to kill.
III
DEFENSE COUNSEL’S CONCESSION THAT DEFENDANT WAS GUILTY
Defendant contends that his trial counsel rendered constitutionally ineffective assistance by conceding that he was guilty of unpremeditated attempted murder.
A. Additional Factual and Procedural Background.
In his opening statement, defense counsel stated: “The focus of the defense is going to be very, very focused. As you listen to the evidence it’s my suggestion that you will not hear evidence that he deliberated or premeditated this offense. That he did not intentionally discharge the weapon. He did not do it with the intent to cause him great bodily injury. And that’s all I ask you to listen for from the defense point of view.
“If you do that, if you agree with me, at the end of the case I will be asking you to find him guilty of the lesser included offense of attempted murder. Without deliberation and premeditation. And to find the special enhancement not true.’
Similarly, in closing argument, defense counsel stated, “[T]his is what you need to do with the charges. [¶]... [W]hat you find him guilty of is the lesser-included, attempt[ed] murder without deliberation and premeditation. And if you find him guilty of the lesser-included, you find the intentional discharge of the gun not true.
“Do you hold him accountable? Yes, you do. But you hold him accountable for what he did.”
B. Analysis.
“‘“In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel’s performance was deficient because it ‘fell below an objective standard of reasonableness [¶]... under prevailing professional norms.’ [Citations.] Unless a defendant establishes the contrary, we shall presume that ‘counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.’ [Citation.] If the record ‘sheds no light on why counsel acted or failed to act in the manner challenged,’ an appellate claim of ineffective assistance of counsel must be rejected ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.’ [Citations.] If a defendant meets the burden of establishing that counsel’s performance was deficient, he or she also must show that counsel’s deficiencies resulted in prejudice, that is, a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ [Citation.]”’ [Citation.]” (People v. Salcido (2008) 44 Cal.4th 93, 170.)
“The decision of how to argue to the jury after the presentation of evidence is inherently tactical.... [¶] Recognizing the importance of maintaining credibility before the jury, [the Supreme Court] ha[s] repeatedly rejected claims that counsel was ineffective in conceding various degrees of guilt. [Citations.]” (People v. Freeman (1994) 8 Cal.4th 450, 498; see, e.g., People v. Gurule (2002) 28 Cal.4th 557, 612 [where evidence of guilt was “quite strong,” reasonably competent counsel could have decided to concede it and try to avert the death penalty]; People v. Cain (1995) 10 Cal.4th 1, 31 [where evidence of guilt was strong, reasonably competent counsel could have decided to concede it, “while vigorously arguing against defendant’s guilt of the special circumstances”].) “[G]ood trial tactics often demand complete candor with the jury, and... in light of the weight of the evidence incriminating a defendant, an attorney may be more realistic and effective by avoiding sweeping declarations of his or her client’s innocence. [Citations.]” (People v. Mitcham (1992) 1 Cal.4th 1027, 1060-1061.)
Here, the evidence of guilt was quite strong. There was no question as to identity. The only question was whether defendant acted with the intent to kill. Admittedly, as we will hold in part IV, post, there was some evidence that, as a result of his mental illness, defendant did not form the intent to kill. However, this evidence was weak and unlikely to persuade the jury in the face of the ample evidence — including defendant’s own admissions — that he did have the intent to kill, as we have already discussed in part II, ante. Moreover, as we will hold in part V, post, there was insufficient evidence that defendant was unconscious at the time of the shooting.
Arguing lack of intent could even have backfired. The evidence that defendant was so delusional that he could shoot a neighbor while unconscious, or while believing that both he and the neighbor were in a video game, was somewhat inflammatory. It had a tendency to evoke passion and prejudice against defendant. Thus, it could have made the jury even less likely to accept that defendant did not premeditate and deliberate.
Under these circumstances, it could be sound trial strategy to do exactly what defense counsel did — to urge the jury to “hold [defendant] accountable” by convicting him of attempted murder, but to find that the attempted murder was not willful, deliberate and premeditated and that the firearm enhancement did not apply.
We therefore conclude that, on this record, defense counsel’s concession did not constitute ineffective assistance.
IV
FAILURE TO INSTRUCT THAT MENTAL ILLNESS CAN DEFEAT SPECIFIC INTENT
Defendant contends that the trial court erred by failing to instruct sua sponte that the jury could consider evidence of mental illness in deciding whether he had any necessary specific intent. (E.g., CALCRIM No. 3428.) Alternatively, assuming this instruction had to be requested, he contends that his trial counsel rendered constitutionally ineffective assistance by failing to request it.
CALCRIM No. 3428, as pertinent here, provides:
The People respond that there is no need to give such an instruction in the absence of specific expert testimony that the defendant was suffering from a mental illness that impaired his ability to form the necessary specific intent. In this case, Dr. Graham-Howard testified that defendant was suffering from a mental illness, but she was unable to come to a conclusion as to whether it impaired his ability to form the necessary specific intent. The People rely on People v. Moore (2002) 96 Cal.App.4th 1105. There, however, the court held that the trial court properly refused to give a similar instruction because there had been no expert testimony that the defendant was, in fact, suffering from any mental illness at all. (Id. at pp. 1114-1117.) Thus, it is not authority for the proposition that there must also be expert testimony that, as a result of a mental illness, the defendant could not form a specific intent.
Indeed, any such expert testimony would have been inadmissible. “‘Expert opinion on whether a defendant had the capacity to form a mental state that is an element of a charged offense or actually did form such intent is not admissible at the guilt phase of a trial. [Citation.] [Penal Code s]ections 28 and 29 permit introduction of evidence of mental illness when relevant to whether a defendant actually formed a mental state that is an element of a charged offense, but do not permit an expert to offer an opinion on whether a defendant had the mental capacity to form a specific mental state or whether the defendant actually harbored such a mental state.’ [Citation.]” (People v. Vieira (2005) 35 Cal.4th 264, 292, fns. omitted.)
There was some evidence that defendant lacked the intent to kill. Dr. Graham-Howard testified that he did have schizoaffective disorder, a mental illness featuring hallucinations, delusions and disordered thinking. Defendant testified that his dead brother told him to shoot just to show that he was not “kidding around.” Moreover, before shooting the victim, defendant fired many random shots, including into a truck and into the snow. A reasonable trier of fact could have concluded that he lacked the specific intent to kill. Of course, there was strong contrary evidence (as we held in part II, ante). Still, there was substantial evidence to support giving an instruction that evidence of mental illness can be considered in determining whether the defendant had a required specific intent.
Such an instruction, however, is a pinpoint instruction that need only be given on request, not sua sponte. (People v. Ervin (2000) 22 Cal.4th 48, 91.) Defense counsel’s failure to request CALCRIM No. 3428 or a similar instruction therefore forfeited the contention that it should have been given.
We turn, then, to defendant’s contention that this failure constituted ineffective assistance.
We see no reasonable probability that, if defense counsel had requested CALCRIM No. 3428, defendant would have enjoyed a more favorable outcome. Although there was minimally sufficient evidence to support giving CALCRIM No. 3428, it was far outweighed by the evidence — including defendant’s own admissions — that he did, in fact, have the intent to kill. Moreover, the jury was given other instructions that, while not as specific as CALCRIM No. 3428, were adequate to make the same point. (Indeed, this is why CALCRIM No. 3428 is a pinpoint instruction.) In particular, the jury was instructed that attempted murder required the specific intent to kill. (CALCRIM No. 600.) It was well aware that defendant was claiming that he did not shoot the victim intentionally, but rather under the influence of his mental illness. Thus, if it had believed him, presumably it would have acquitted him, even in the absence of an instruction like CALCRIM No. 3428.
We therefore conclude that defense counsel’s failure to request an instruction specifically allowing the jury to infer lack of specific intent from evidence of defendant’s mental illness did not constitute ineffective assistance.
V
FAILURE TO INSTRUCT ON UNCONSCIOUSNESS
Defendant contends that the trial court erred by failing to instruct sua sponte on unconsciousness. (E.g., CALCRIM No. 3425.) Alternatively, assuming this instruction had to be requested, he contends that his trial counsel rendered constitutionally ineffective assistance by failing to request it.
CALCRIM No. 3425 provides:
“Unconsciousness, when not voluntarily induced, is a complete defense to a charged crime. [Citations.] ‘Unconsciousness does not mean that the actor lies still and unresponsive. Instead, a person is deemed “unconscious” if he or she committed the act without being conscious thereof.’ [Citations.] A trial court must instruct on unconsciousness on its own motion if it appears the defendant is relying on the defense, or if there is substantial evidence supporting the defense and the defense is not inconsistent with the defendant’s theory of the case. [Citation.]” (People v. Rogers (2006) 39 Cal.4th 826, 887.) A “[d]efendant’s professed inability to recall the event, without more, [i]s insufficient to warrant an unconsciousness instruction. [Citations.]” (Id. at p. 888.)
In People v. Rogers, supra, 39 Cal.4th 826, the defendant testified that he had no independent recollection of a charged killing. (Id. at p. 843.) On appeal, he argued that this, when combined with expert testimony that he “‘blacked out,’” required the trial court to instruct on unconsciousness. (Id. at p. 887.) The Supreme Court disagreed that this was a correct characterization of the expert testimony: “The defense experts’ testimony..., fairly read, does not imply that [the defendant] was unconscious during the events. Rather, it suggests he was aware of the events as they were occurring, but reacted to them emotionally rather than logically. For example, Dr. Glaser testified the killing was an emotional, ‘impulsive heat of passion event,’ and Dr. Bird testified the killing was an impulsive, emotional act of passion and fear. Further, defendant’s own testimony that he could not remember portions of the events, standing alone, was insufficient to warrant an unconsciousness instruction. [Citation.]” (Id. at pp. 887-888.) It therefore concluded that there was no substantial evidence to support an unconsciousness instruction. (Ibid.)
Here, similarly, defendant claimed that he could not remember shooting the victim. Nevertheless, there was no expert or other testimony that he was in fact unconscious at the time. Admittedly, there was evidence that he suffered from schizoaffective disorder, and that schizoaffective disorder could cause delusions. However, there was no evidence that he was under a delusion at the time of the shooting — i.e., that he was unaware that he was shooting at a human being. His own contemporaneous statements to the police proved that he was aware of this. Also, Dr. Graham-Howard conceded that he was not legally insane; once again (see part II, ante), this meant that he was aware of the nature and quality of his act. Precisely because defendant claimed not to remember the shooting, he could hardly testify that he was unaware of it at the time. He admitted knowing, while he was still inside the trailer, that he was firing shots (albeit on the instructions of his dead brother and only to show that he meant business). Finally, Dr. Graham-Howard did testify that chronic alcoholism can cause memory gaps. She did not testify, however, that such memory gaps would be an indicator of unconsciousness, rather than mere forgetfulness.
We therefore conclude that the trial court was not required to instruct on unconsciousness. For this reason, defense counsel did not render ineffective assistance by failing to request such an instruction.
VI
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST, Acting P.J., McKINSTER, J.
“You have heard evidence that the defendant may have suffered from a mental (disease[,]/[or] defect[,]/[or] disorder). You may consider this evidence only for the limited purpose of deciding whether, at the time of the charged crime, the defendant acted [or failed to act] with the intent or mental state required for that crime.
“The People have the burden of proving beyond a reasonable doubt that the defendant acted [or failed to act] with the required intent or mental state, specifically: <insert specific intent or mental state required, e.g., ‘malice aforethought,’ ‘the intent to permanently deprive the owner of his or her property,’ or ‘knowledge that...’>. If the People have not met this burden, you must find the defendant not guilty of <insert name of alleged offense>.”
“The defendant is not guilty of <insert crime[s]> if (he/she) acted while legally unconscious. Someone is legally unconscious when he or she is not conscious of his or her actions. [Someone may be unconscious even though able to move.]
“Unconsciousness may be caused by (a blackout[,]/ [or] an epileptic seizure[,]/ [or] involuntary intoxication[,]/ [or] sleepwalking[,]/ or <insert a similar condition>).
“The People must prove beyond a reasonable doubt that the defendant was conscious when (he/she) acted. If there is proof beyond a reasonable doubt that the defendant acted as if (he/she) were conscious, you should conclude that (he/she) was conscious. If, however, based on all the evidence, you have a reasonable doubt that (he/she) was conscious, you must find (him/her) not guilty.”