Opinion
D072297
07-03-2018
THE PEOPLE, Plaintiff and Respondent, v. STEPHANIE GONZALEZ, Defendant and Appellant.
Susan L. Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Robin Urbanski and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCN368968) APPEAL from a judgment of the Superior Court of San Diego County, Sim Von Kalinowski, Judge. Affirmed. Susan L. Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Robin Urbanski and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Stephanie Gonzalez of three counts of attempted robbery. (Pen. Code, §§ 664/221.) The court imposed but suspended execution of her prison sentence and placed her on three years' probation.
Gonzalez contends her trial counsel provided ineffective assistance by failing to request that the court instruct the jury regarding voluntary intoxication with CALCRIM No. 3426. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
C.F. testified that on January 26, 2017, she was leaving a hospital in Oceanside, California, when Gonzalez came up behind her and pressed on C.F.'s back what felt like a gun inside a plastic bag. Gonzalez demanded C.F.'s purse. Gonzalez was talking "very slowly" and her tone of voice was "angry and confused." C.F. was scared and responded that she had nothing worth taking. Gonzalez kept threatening her with death until C.F. opened her bag and showed her its contents. Gonzalez said, "Sorry," looked really confused, and walked away. C.F. called 911 and said she thought Gonzalez was either under the influence of drugs or alcohol or mentally ill. Police arrived and C.F. identified Gonzalez at the scene.
M.J. testified that on that same day, she was in the same hospital's parking lot when Gonzalez approached her, saying she wanted M.J.'s purses. Gonzalez's demeanor was not threatening; rather, it was "just flat." M.J. told her no, and Gonzalez replied, "If I don't get those purses, I'll shoot you." M.J. again refused, and Gonzalez walked away. M.J. later told police she wanted Gonzalez to be prosecuted for the incident.
V.C. also testified that on that same day she was walking through the same parking lot when Gonzalez, with a hand in a bag holding what V.C. assumed was a gun, approached and told her, "Ma'am, I'm going to need your purse." V.C. was shocked and afraid, and opened her lunch bag. Gonzalez glanced inside it and walked away. V.C. reported the incident to police, saying Gonzalez might have been a recently released mental patient.
An Oceanside police officer responded to the scene and placed Gonzalez in handcuffs. Gonzalez was docile and quiet and seemed to understand what was going on. The police officer did not think she was drunk, as he did not smell alcohol on her breath, and she was not falling down or staggering; therefore, he did not test her for intoxication. He recognized Gonzalez from four days earlier when he had responded to a report that she and three other persons were "smoking out of a glass pipe." That day, the police placed Gonzalez on a psychiatric hold under Welfare and Institutions Code section 5150 because she had expressed suicidal thoughts.
Another Oceanside police officer responded to the hospital parking lot. She testified that she believed Gonzalez possibly was under the influence of alcohol and drugs because she seemed talkative, erratic, and shaky. But that officer did not include that impression in her arrest report. Further, she did not evaluate Gonzalez for intoxication. However, the officer wrote in her report that Gonzalez was recently placed on a Welfare and Institutions Code section 5150 hold.
Defense counsel argued to the jury in closing that Gonzales needed money on the day of the incident, having just been released from the hospital due to her mental problems: "I know she had no money on her. I think someone testified that she had a dollar. We don't have any information that she had any transportation, and all we know is she had a bag of personal property. We don't know what was in that personal property, because neither of the police officers bothered to look in there or catalog anything in there. I don't know if there was any discharge paperwork or information that could have been possibly relevant in this case. [¶] What is a [Welfare and Institutions Code section] 5150 hold? This is something that gives the government the right to take away your freedom. A peace officer can take away your freedom involuntarily if they [sic] find you're not in a proper state of mind. You have suicidal thoughts. You're unable to care for yourself. They can hold you in the hospital involuntarily for up to 72 hours."
Defense counsel added: "Now, mental impairment, you have heard evidence that the defendant may have suffered from a mental defect. When I say evidence, I mean the testimony of pretty much—actually, every witness, except maybe the security guard who did not have a long interaction with her. Everyone said something was wrong with [Gonzalez]. Something was wrong with her. [¶] [M.J.] was just puzzled by the whole thing. [C.F.] thought she was mentally ill. [V.C.] thought she might have been a mental patient from the hospital. We know that she was booked on a [Welfare and Institutions section] 5150 hold a few days before where an officer thought she was such a danger to herself and mentally unfit that he, in fact, involuntarily committed her to the hospital. And we know this is right around the time when that commitment would have been statutorily up."
DISCUSSION
Gonzalez contends her trial attorney rendered ineffective assistance by failing to ask the court to instruct the jury with CALCRIM No. 3426, which provides that voluntary intoxication can negate specific intent. A. Background
CALCRIM No. 3426 states: "You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted [or failed to do an act] with [specific intent]. [¶] A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect. [¶] In connection with the charge of [attempted robbery], the People have the burden of proving beyond a reasonable doubt that the defendant acted [or failed to act] with [specific intent]. If the People have not met this burden, you must find the defendant not guilty of [attempted robbery]. You may not consider evidence of voluntary intoxication for any other purpose." --------
During trial, the People moved in limine to exclude the defense from referring to Gonzalez's mental health problems for lack of evidence: "[A]t the point when we began this trial, there was no evidence there was going to be a mental health issue. We received a report from a psychologist, as a matter of fact, saying [Gonzalez] had no psychological issues and that it was all drug related, any issues that she had with her behavior. So, prior to this, starting this trial, we actually got a confirmation that she did not have any mental health issues from the defense counsel."
The court asked if the People wanted to call that psychologist to testify. The prosecutor responded: "[The psychologist is] not under subpoena for us. We just received the report last week. So we don't have that person to come in and testify. Defense counsel received it and probably realized it wasn't that good for the mental health defense and didn't subpoena that person to come in."
Defense counsel countered that Gonzalez's mental health was relevant to the issue of intent: "[T]he district attorney's implication that mental health or intent was never an issue in this case is, frankly, ridiculous, as that's always been my issue, which I have argued not only at every readiness, not only at the [preliminary hearing], but at every opportunity that I've had to talk with the district attorney."
The court denied the People's motion and admitted evidence regarding Gonzalez's mental health: "So based upon offers of proof and the fact that [Gonzalez] was taken in on a [Welfare and Institutions section] 5150 hold, which is circumstantial evidence of potential mental issue, the officer can testify as to his observations. He can also testify as to other things that may have been affecting it. That goes to the weight. And in view of the fact that some of the witnesses also made similar statements, although we don't have any expert there on a specific diagnosis, I do think it does—it potentially goes to the issue of intent. I'm going to let it in."
The court on its own motion instructed the jury with CALCRIM No. 3428: "[Y]ou have heard evidence that the defendant may have suffered from a mental defect. You may consider this evidence only for the limited purpose of deciding whether, at the time of the charged crime, the defendant acted with the intent or mental state required for that crime. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant acted with required intent or mental state, specifically the intent to commit a robbery. If the People have not met this burden, you must find the defendant not guilty of attempted robbery." B. Applicable Law
All defendants in criminal proceedings have a constitutional right to effective assistance of counsel. (Gideon v. Wainwright (1963) 372 U.S. 335.) To establish ineffective assistance of counsel, a defendant must demonstrate that counsel's performance was deficient such that it "fell below an objective standard of reasonableness" and that the deficient performance resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692.) To show prejudice, a defendant must establish by a reasonable probability that if counsel's performance was not deficient, she would have received a more favorable result. (Id. at p. 694.) In considering a claim of ineffective assistance of counsel, it is not necessary to determine " 'whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.' " (In re Fields (1990) 51 Cal.3d 1063, 1079, quoting Strickland, at p. 697.) "In general, reviewing courts defer to trial counsel's tactical decisions in assessing a claim of ineffective assistance, and the burden rests on the defendant to show that counsel's conduct falls outside the wide range of competent representation. [Citations.] In order to prevail on such a claim on direct appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission." (People v. Ray (1996) 13 Cal.4th 313, 349.) C. Analysis
We conclude based on defense counsel's arguments in the motion in limine that she had tactical reasons for not requesting instruction on voluntary intoxication but instead focusing on mental illness. Further, defense counsel argued to the jury regarding Gonzalez's mental condition, pointing out that Gonzalez had been on a Welfare and Institutions section 5150 hold shortly before the attempted robbery incidents. Moreover, the witnesses' testimony supported this defense, as they described Gonzalez's affect as flat, and said she appeared confused or dazed during the different incidents. Defense counsel could also reasonably conclude the jurors would be more sympathetic to Gonzalez if they thought she suffered from a mental illness than if they believed she was voluntarily intoxicated. Nor can we conclude Gonzalez has shown counsel's representation resulted in any prejudice to her. The evidence regarding the intoxication defense was limited to the witnesses' impressions. It was not as substantial as that regarding mental health. The police officers did not administer sobriety or blood-alcohol tests because they did not detect that Gonzalez was intoxicated.
The court instructed the jury with CALCRIM No 3428 on mental illness affecting Gonzalez's ability to act with an intent to commit the charged crimes, but that did not change the jury's verdict. Therefore, no different result is reasonably likely if the court had instructed the jury regarding voluntary intoxication. The jury reasonably concluded Gonzalez seemingly was not intoxicated or otherwise mentally impaired, as she was able to carry out the attempted robberies by selecting three separate women victims to approach, pretending to have a weapon concealed in a bag, and demanding their purses. In light of the above, Gonzalez has not shown her trial attorney provided ineffective assistance in violation of her constitutional rights.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J. WE CONCUR: McCONNELL, P. J. NARES, J.