Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCR215441
Ruvolo, P. J.
I.
Introduction
Miguel Aguirre Gutierrez (appellant) appeals from a judgment upon a jury verdict finding him guilty of attempted first degree murder. (Pen. Code, §§ 664, 187.) The jury also found true the allegations that appellant used and discharged a firearm during the commission of the offense. (Id. at § 12022.53, subds. (b), (c).) He contends that his conviction must be reversed because his trial counsel failed to move to suppress evidence and to present expert testimony on his alcoholism, and committed other evidentiary errors. Assuming his counsel’s conduct fell below the standard of care required, the record on appeal is insufficient to sustain appellant’s burden to show that he was prejudiced by counsel’s alleged misfeasance. Therefore, we affirm.
II.
FACTS
In April 2004, appellant and Maria Aguirre had been married for 27 years and had eight children. Aguirre had been in Mexico for several months caring for her father. She returned to her home on April 26, 2004, after her father died. She had determined that she was not going to sleep with appellant and would stay in another room because of appellant’s excessive drinking. When Aguirre told appellant that she was going to stay in their daughter Theresa’s room, appellant became upset and said that he was going to destroy his weapons because he did not want to kill her. Appellant then proceeded to cut up the two guns he owned.
The following morning, Aguirre awoke at 5:00 a.m. and found that appellant was awake in the kitchen. She asked him if he was going to work so that she could prepare his lunch. Appellant replied that he was not going to work “because you have never been grateful for my work . . . .” He was angry with Aguirre. She returned to Theresa’s bedroom. As the children were getting ready to go to school, appellant went to Aguirre and accused her of having an affair. Aguirre told appellant that he was wrong and denied the accusations. Appellant left the bedroom but returned again, this time to hand her their income tax refund check. He left but returned to retrieve the check.
Appellant returned again, this time with a gun. He pointed the gun at Aguirre’s head and fired; Aguirre put up her hands and ducked. At trial, Aguirre testified that she approached appellant when he entered the room, pushed him with her hand, screamed, and then the weapon fired. Aguirre was shot in her middle finger. She suffered a fracture and can no longer straighten that finger. After she was shot, Aguirre approached appellant, took the gun away from appellant, and gave it to Theresa.
Lieutenant Jose Cuevas of the Solano County Sheriff’s Office responded to the scene. He approached Aguirre, who was inside an ambulance about a quarter of a mile from her home. Aguirre told him that appellant had attempted to kill her. Cuevas went to appellant’s home and took him into custody. Cuevas told appellant that he was under arrest for the attempted murder of his wife. Appellant then told him, “She did not want to be with me anymore, so I wanted to end it, by shooting her in the head, but I only got her hand.” Cuevas took appellant to the hospital for a blood draw. While waiting for the blood to be drawn, appellant said, “You know, I aimed at her head. I don’t know how I shot her hand. Maybe she moved.”
Cuevas testified that appellant did not appear to be drunk but that he noticed a moderate odor of alcohol emitting from him. On cross-examination, Cuevas admitted that he probably would have arrested appellant for driving under the influence had he been driving.
Deputy Romero Fernandez interviewed Aguirre at the hospital. Aguirre said that she and appellant argued the previous evening and that he had been drinking. She stayed in her daughter Theresa’s room that evening, and the next morning appellant came in and they discussed getting him some help for his alcohol problem. Appellant became angry and walked away. He returned to the room while she was folding clothes, and yelled, “Hey.” Aguirre turned around, the appellant fired a rifle at her head. Aguirre put her hands up in front of her and ducked down. Aguirre said that appellant told her, “I shot to kill you.” Fernandez taped part of Aguirre’s statement and the tape was played for the jury. The tape was transcribed and translated from Spanish to English. The parties stipulated that the transcript was accurate and it was admitted into evidence. The parties further stipulated to have Aguirre’s preliminary hearing transcript read into evidence.
Detective James Clark interviewed appellant. The interview was videotaped and conducted in Spanish. The parties stipulated to admit a transcript of the videotape into evidence. Clark testified that he read appellant his Miranda rights, and appellant acknowledged that he understood them. Appellant told Clark that he had been having problems with Aguirre for a few months, that she did not want to have sex with him and intended to leave him. Appellant further stated that he first began thinking of killing Aguirre about four months earlier, and he told his brother he wanted to kill Aguirre. Appellant testified that he owned two rifles; he loaded three bullets into his Mauser rifle the evening before the shooting. He said that the following morning, he pointed the rifle at Aguirre’s head and fired it because he wanted to kill her.
Arturo Aguirre, appellant’s brother, testified that approximately a month to a month and a half before the shooting, appellant was drunk and told him that his wife was cheating on him and he wanted to kill her. On cross-examination, Arturo clarified that what appellant said was “[t]his woman, I’m fed up with her. Sometimes I feel like killing her.”
In defense, Theresa Aguirre, appellant’s daughter, testified that she saw her father the evening before the shooting in Davis. He was at the gas station and had an 18-pack of beer. They returned to appellant’s house where appellant stayed outside and drank. The next morning, Theresa heard her parents arguing in the kitchen. Her mother returned to the bedroom where Theresa was lying down in bed. Appellant subsequently returned to the bedroom and Theresa heard her mother scream her name as she ran towards the door, holding a towel, and Theresa heard a shot. Theresa got up and saw her parents holding a weapon. She approached them and took the weapon from appellant.
Dr. Larry Wornian, a forensic neuropsychologist, testified that functional alcoholics can consume excessive amounts of alcohol and seem completely unimpaired. For example, a functional alcoholic who consumes 18 beers would not be affected to the point where others would notice he was intoxicated. Alcohol, however, is toxic to the nerves, impairs memory, and results in shrinkage of the brain. A functional alcoholic may have significant memory lapses, and often suffers falls or head injuries that can result in traumatic brain injuries. On cross-examination, Dr. Wornian admitted that all functional alcoholics are not similarly impaired and that an individual assessment is required to determine the extent of the alcoholic’s impairment.
III.
DISCUSSION
Appellant contends that he was denied effective assistance of counsel because his counsel committed certain acts and omissions including failing to present expert testimony concerning his alcoholism and mental deficiency, failing to move to suppress his pretrial statements, and stipulating that a transcript of his confession be admitted into evidence.
In order to prove a claim of inadequate representation, an appellant must show that “trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates.” (People v. Pope (1979) 23 Cal.3d 412, 425, overruled on other grounds in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.) Effective and competent representation requires “counsel’s ‘diligence and active participation in the full and effective preparation of his client’s case.’ [Citation.]” (Id. at pp. 424-425.) We will reverse a conviction on the ground of inadequate counsel only if the appellant affirmatively shows that the omissions of defense counsel cannot be explained on the basis of any knowledgeable choice of tactics. (People v. Zapien (1993) 4 Cal.4th 929, 980.)
The appellant must also establish prejudice from counsel’s acts or omissions. Ordinarily prejudice must be affirmatively proved; the appellant must establish the reasonable probability that had counsel not been incompetent, the proceeding would have had a different result. (Strickland v. Washington (1984) 466 U.S. 668, 687.) Prejudice based on ineffective assistance of counsel is only presumed “[i]f counsel’s deficiencies were so severe as to result in a complete breakdown of the adversary process . . . .” (People v. McDermott (2002) 28 Cal.4th 946, 991.) “Otherwise, the defendant must show prejudice ‘in the sense that it “so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” ’ . . .” (Ibid., citing People v. Kipp (1998) 18 Cal.4th 349, 366.)
While normally reviewing courts will first determine if counsel’s performance met the applicable standard of care before turning to the question of prejudice, it is not necessary to follow this approach in all cases. “ ‘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. [Citation.] A defendant must prove prejudice that is a “demonstrable reality,” not simply speculation.’ [Citations.]” (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.)
Appellant claims on appeal that defense counsel’s failure to investigate and to develop the issue of appellant’s voluntary intoxication resulted in his inability to prove that he did not knowingly and intelligently waive his Miranda rights. Thus, had counsel performed adequately, there is a reasonable probability that he would have been able to convince the trial court to exclude his confession. He also argues that if the jury had heard further expert evidence of the effects of his voluntary intoxication, it was reasonably probable that it would have found that appellant was unable to have formed the requisite intent necessary to commit attempted murder. On this record, we cannot agree that appellant was prejudiced by counsel’s performance, assuming it was below the standard of care. Thus, we need not, and do not, determine if defense counsel’s conduct was ineffective under the appropriate legal standard.
The crime of attempted first degree murder requires proof that the defendant had the specific intent to kill, and that he or she took at least one step towards killing another. (CALCRIM No. 600; People v. Castillo (1997) 16 Cal.4th 1009, 1016.) In this case, the jury also determined that the attempted murder was committed willfully, and with deliberation and premeditation. Voluntary intoxication may be considered only as to whether appellant lacked the capacity to form the requisite mental states for attempted murder. (People v. Castillo, supra, 16 Cal.4th at p. 1016.) Even excluding appellant’s confession, there was ample evidence that appellant intended to kill his spouse when he shot her, and that the attempt to do so was done willfully and with deliberation and premeditation. First, appellant’s brother, Arturo Aquirre, testified that appellant told him he harbored thoughts of killing his wife more than a month before the shooting. On the night before the shooting, appellant took the extraordinary step of destroying two firearms in his possession in order to suppress the temptation to kill her. After the shooting the next morning, appellant admitted to his wife that he shot her in order to kill her. Indeed, the undisputed evidence is that appellant shot at his wife’s head, and struck her hand only because she ducked when he fired.
In light of this evidence, even if appellant had been able to suppress the additional evidence of his admissions to police officers after the shooting, there is no reasonable likelihood that the jury would have entertained a reasonable doubt that he shot his wife with the requisite intent to kill her, with premeditation and deliberation.
Despite this evidence, defense counsel proffered the testimony of neuropsychologist Dr. Larry Wornian on the issue of the effects of appellant’s chronic abuse of alcohol on his ability to have formed the specific intent to kill. Because counsel failed to list him as a prospective witness, the prosecutor objected to Dr. Wornian’s testimony, and the court limited his testimony. However, there is no evidence that had Dr. Wornian testified to the full extent envisioned, there would have been any substantial evidence adduced challenging the strong direct and circumstantial evidence of intent to kill with premeditation and deliberation summarized above.
Once the prosecutor noted her objection to the prospective testimony of Dr. Wornian because of his late disclosure by the defense, the court conducted an Evidence Code section 402 (section 402) hearing to allow defense counsel to make an offer of proof as to what Dr. Wornian would say if allowed to testify without restriction.
Evidence Code section 402, subdivision (b) provides: “The court may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury; but in a criminal action, the court shall hear and determine the question of the admissibility of a confession or admission of the defendant out of the presence and hearing of the jury if any party so requests.”
The opening statement is not a part of the record on appeal. The trial court alluded to trial counsel’s statement in discussing the admissibility of the testimony of Dr. Larry J. Wornian, a forensic neuropsychologist.
At the section 402 hearing, Dr. Wornian stated his conclusion that appellant was a “severe chronic alcoholic.” Appellant had suffered blackouts and had a tendency to fall and hit his head. Dr. Wornian was impressed with appellant’s “comportment” during the police interview after the shooting, and given that his blood alcohol was .25 percent when taken several hours after the shooting, the witness concluded that appellant was a functional alcoholic. In concluding the foundational hearing, Dr. Wornian stated he understood that, even if his testimony was not limited, he would not be allowed to testify whether appellant had the specific intent to kill on the morning of the shooting.
In front of the jury, Dr. Wornian testified as to what is a “functional alcoholic.” He explained that a functional alcoholic’s body adapts to alcohol consumption to the point where the person seems to others to be completely unimpaired; if a functional alcoholic drank 18 beers over the course of an evening, it would be like drinking water to most other people. Functional alcoholics oftentimes have significant memory problems. Drinking 18 beers can also affect a functional alcoholic’s mental reasoning. For example, the person can become much more impulsive, and uninhibited. Judgment may be impaired, including the ability to form plans, “do and review” may be more limited, including the ability to follow instructions. Such persons can also do things out of normal character for that person, such as picking fights and taking risks. Hallucinations are also not unusual. Chronic alcoholism also has “a pretty disastrous impact” on executive functioning of the brain. That is, it affects the ability to form plans; to think about what one is going to do before acting.
On appeal appellant argues that his trial counsel was ineffective in not timely designating Dr. Wornian as an expert witness, and in not preparing his testimony with greater care. However, the argument does not reveal what more Wornian could have permissibly said at trial, and how that additional testimony would have raised a reasonable doubt that appellant did not have the mental state required for attempted first degree murder. In light of the admissions made by appellant to his victim and brother, coupled with his actions leading up to the shooting, on this record we cannot say that appellant was prejudiced by having his expert’s testimony limited at trial.
In addition to limiting the testimony of Dr. Wornian, the court excluded evidence of appellant’s precise blood-alcohol level and how it might have affected him at the time of the shooting because defense counsel failed to disclose and call as a witness the toxicologist who conducted the blood-alcohol analysis. Again, assuming that his counsel’s failure to call the toxicologist to testify that appellant had a blood-alcohol level (BAC) of .25 percent on the morning of the shooting was ineffective assistance of counsel, appellant was not prejudiced by this omission. Appellant’s BAC was the result of his having consumed an 18-pack of beer the night before the shooting, a fact known to the jury. Dr Wornian told the jury, if it could not be otherwise inferred, that this amount of beer would produce “a lot of alcohol in the system.” In light of this evidence, it is not reasonably probable that testimony about appellant’s estimated actual numerical BAC level would have led to a different result in this case.
Indeed, defense counsel commented to the court that even without the toxicologist, “there is ample evidence already before the jury of my client consuming large amounts of alcohol and being highly intoxicated.”
My colleagues downplay this grave error. They assert that Gutierrez’s actual BAC would have added little to the defense case because it was “a fact known to the jury” that Gutierrez consumed an 18-pack of beer the night before the shooting, and Wornian testified that this amount of beer would produce “a lot of alcohol in the system.” (Maj. opn., ante, at p. 8.) As noted above, however, there was no competent evidence introduced as to the actual amount of beer consumed, and the district attorney took full advantage of that lack of evidence in closing argument. Further, the concept of “a lot of alcohol in the system” is a relative one, and simply does not communicate the dramatic fact that Gutierrez’s actual BAC level would put a normal person in a “frankly stuporous condition.”
We note that our Supreme Court has posited more than once that such claims are better suited to be brought by petition for habeas corpus than on direct appeal: “[N]ormally a claim of ineffective assistance of counsel is appropriately raised in a petition for writ of habeas corpus (see, e.g., People v. Mendoza Tello [1997] 15 Cal.4th 264[, 266-267], where relevant facts and circumstances not reflected in the record on appeal, such as counsel’s reasons for pursuing or not pursuing a particular trial strategy, can be brought to light to inform the two-pronged inquiry of whether counsel’s ‘representation fell below an objective standard of reasonableness,’ and whether ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ (Strickland v. Washington[, supra,] 466 U.S. [at pp.] 688, 694 . . . .)” (People v. Snow (2003) 30 Cal.4th 43, 111.)
As to all of appellant’s ineffective assistance of counsel claims, the appellate record provides no illumination of the basis for the challenged acts or omissions. That is precisely why claims of ineffective assistance of counsel are more appropriately made by petition for habeas corpus, where additional evidence outside the appellate record may be brought to the court’s attention. (See, e.g., In re Cordero (1988) 46 Cal.3d 161 [habeas corpus proceeding exploring whether defense counsel failed to conduct reasonable factual investigation of defendant’s potential defense of intoxication]; In re Avena (1996) 12 Cal.4th 694 [habeas corpus proceeding exploring whether defense counsel should have investigated and presented a defense based on defendant’s alleged PCP intoxication during the crimes and whether he should have challenged the admission of defendant’s taped confession].) The Supreme Court made clear in People v. Mendoza Tello, supra, 15 Cal.4th 264 that an appellate court should not “set aside a jury verdict, and brand a defense attorney incompetent unless it can be truly confident all the relevant facts have been developed . . . .” (Id. at p. 267.)
IV.
DISPOSITION
The judgment is affirmed.
I concur: Reardon, J.
Dissenting Opinion
Rivera, J.
I dissent from the majority’s conclusion that no prejudice accrued to defendant Miguel Aguirre Gutierrez in this case due to ineffective assistance of counsel. (Maj. opn., ante, at p. 6.)
In his opening statement, defense counsel conceded that Gutierrez committed the shooting but contested whether he premeditated and deliberated on killing his wife.1 Trial counsel’s strategy was to rely on Gutierrez’s voluntary intoxication, and the mental deficits resulting from his chronic alcoholism, to defeat the premeditation and deliberation element of the offense of first degree attempted murder. In pursuing that course, counsel made two egregious errors. First, he failed to place before the jury the essential factual predicate of this defense theory, that is, he failed to introduce evidence of Gutierrez’s high degree of intoxication at the time of the crime (.25 BAC or higher). Second, counsel failed to secure prior to trial an expert evaluation of the effects of Gutierrez’s intoxication and chronic alcoholism. This inexcusable lack of diligence effectively gutted Gutierrez’s defense. Accordingly, counsel’s preparation and presentation of Gutierrez’s only viable defense was ineffective as a matter of law and it is not necessary to await a habeas corpus petition to make this determination. (In re Saunders (1970) 2 Cal.3d 1033, 1048-1049 [where the record on its face discloses that counsel failed to investigate the facts necessary to make an informed, rational decision regarding whether and how to present a crucial defense, a determination of whether counsel’s representation was inadequate can be made without reference to counsel’s tactics or reasons because the failure to investigate “precluded [counsel] from making a rational decision on the question”].)
A. Failure to Introduce Evidence of Gutierrez’s Intoxication
Defense counsel failed to call the toxicologist as a witness to testify regarding Gutierrez’s blood alcohol level at the time of the crime and thereafter. As a result, the jury did not hear any competent testimony supporting the defense claim that Gutierrez was highly intoxicated—a staggering .25 BAC or higher—during the shooting and during the time he was making incriminating statements to the victim and to the police. It also precluded Wornian from providing his opinion on Gutierrez’s level of intoxication and its effects on his cognitive functioning.
There could have been no tactical reason for this omission. Indeed, during the argument regarding the testimony Wornian would be allowed to give, the court commented, “[t]he real question I have is how are you going to get the blood alcohol level of your client at the time of the commission of the alleged offense before the jury, which is a crucial issue. It’s your only issue[. I]n your opening statement you indicated the fact that a shooting took place is not going to be denied, but it was whether or not he premeditated, deliberated . . . .” (Italics added.) Defense counsel’s only response was that there was “ample evidence” of Gutierrez’s intoxication already before the jury. In fact, however, there was not, and the prosecutor was able to capitalize upon the absence of intoxication evidence in her final argument: “There is no evidence before you about what the defendant’s—how much the defendant had to drink. The defense counsel wants to say, ‘Well, he probably drank this 18 pack of beer.’ There is no evidence of that, and if there was, you would have heard about it. [¶] You hear, the evidence is, he went to get an 18 pack of beer. He comes home. Everybody goes to bed. That’s the last they see of him. And what do we know about his state of mind the next morning? He is acting normal, just like he always did. . . . [H]e didn’t seem drunk at all. He wasn’t bumping into anything. He wasn’t acting drunk, so there is no evidence that he was in this highly intoxicated state.” (Italics added.) The absence of this intoxication evidence, alone, was clearly prejudicial.2
B. Failure to Complete Factual Investigation Prior to Trial
Defense counsel’s second glaring omission was his failure to complete the factual investigation necessary to Gutierrez’s defense prior to trial. Wornian did not even begin his evaluation of Gutierrez until after the trial had started, on the day before he was to testify. Because defense counsel had not procured—and therefore did not disclose to the prosecutor during pretrial discovery—the results of testing which showed the serious effects of chronic alcoholism on Gutierrez, Wornian could not provide an opinion about the mental deficits of Gutierrez. Instead, Wornian could only offer to the jury generalities about “functional alcoholics.” While he pointed out the adverse effects of alcoholism including brain damage, memory impairment and impulsive behavior, and also noted that functional alcoholics have the ability to appear seemingly unimpaired by their alcohol consumption, he was forced to admit that these generalities would not necessarily apply to everyone, and that the degree to which a functional alcoholic can make and carry out plans will differ from person to person as it depends upon many factors. In sum, the restrictions placed on the expert witness due to defense counsel’s failure to complete his factual investigation prior to trial rendered the expert testimony useless.
That Wornian’s restricted testimony was of no value to Gutierrez’s defense—and possibly counterproductive—is reinforced by the fact that it was completely ignored in the prosecution’s closing argument and was barely alluded to in defense counsel’s closing argument.
Defense counsel’s failure to complete his investigation prior to trial had another serious consequence. Wornian ultimately concluded that Gutierrez was significantly impaired during the police interrogation although he did not appear so. Indeed, at the Evidence Code section 402 hearing defense counsel offered Wornian’s testimony that Gutierrez’s statements to the police were made while he was highly intoxicated and were therefore unreliable. But defense counsel had already failed to move to suppress Gutierrez’s pretrial statements. Had he secured Wornian as an expert witness before trial, a motion to suppress based on Gutierrez’s voluntary intoxication, among other grounds, would have been arguable.
Unquestionably, diligent counsel would have filed a motion to suppress based on an invalid waiver and based upon incapacity. The record does not include a full statement of the advisement of Detective James E. Clark, of the Solano County Sheriff’s Department, to defendant of his Miranda rights; and the transcript of the audiotape of Gutierrez’s interview is, at best, equivocal in demonstrating that he understood the warnings being given: “Q [Detective Clark:] ‘Anything that you tell me, can be used against you in the court of law.’ Do you understand that? [¶] A [Gutierrez:] A court of law (Unable to understand) [¶] Q Yes. Well, what this means is that if you tell me—if you tell me something, I’m going to write it, or we’ll—Uh—Uh—and— [¶] A Then that’s fine. [¶] Q Okay, good. Um—‘You have the right to have a lawyer present during the interview if you want.’ Do you understand that? Yes? [¶] A Yes. [¶] Q Okay. [¶] A Going to the Judge and there’s a lawyer that will be there. [¶] Q Yes. ‘And if you cannot pay for a lawyer, we can— [¶] A I don’t think so. [¶] Q —well—we could pro—pr—provide one for free. If you want, before the interview, if you want.’ Do you understand that? [¶] A Uh-hum. [¶] Q Yes? You have to say, ‘Yes’ or ‘No[.’] [¶] A No, Yes. [¶] Q Yes? Okay, fine.—Okay, Sir. The time is the 10:20. And what is your name Sir?” It appears that Gutierrez understood that Clark would record his statement, but it is far from clear whether he understood that he was entitled to a lawyer, at no cost, prior to the interview. Instead, at one point, he simply agreed with Clark that he could not afford a lawyer. And, Clark himself inaccurately confirmed Gutierrez’s clarification of his right to counsel as arising only when he appears before a judge. Further obfuscating matters is the fact that the interview was conducted in Spanish and the English transcript contains multiple instances in which the transcriber was “Unable to understand” Gutierrez’s statements. Given all of these facts, coupled with Wornian’s opinion concerning Gutierrez’s impaired condition at the time of the interview, no possible tactical purpose could have been served by failing to file a motion to suppress.
The majority concludes that nothing admissible could have been added to Wornian’s testimony that would have assisted Gutierrez’s defense. (Maj. opn., ante, at p. 8.) Again, I disagree. Upon completing his evaluation of Gutierrez after trial, Wornian prepared a “Neuropsychological Report” apparently requested by counsel for the purpose of presenting evidence of diminished capacity at the sentencing hearing. In it, Wornian describes Gutierrez’s poor, sometimes abysmal, performance on a battery of tests designed to measure various mental functions and places Gutierrez’s IQ at somewhere between 59 (well within the mentally deficient range) and 73 (borderline intellectual functioning range). Wornian further noted that Gutierrez had no memory of the shooting or of confessing to the police, and in Wornian’s opinion, this failure of memory was a function of his cognitive deficits, i.e., that Gutierrez was not lying but was “being as truthful as he can be.” He also opined that Gutierrez had sustained “broad damage . . . to the basic neuroanatomy of [his] frontal lobes among other areas of the brain,” and that he had deficits in his ability to “plan, do and review.” That this damage had occurred, Wornian wrote, was strongly reinforced by Gutierrez’s anosmia (the effective loss of smell), which “stood as a critical marker for the presence of orbito-frontal damage,” and therefore Gutierrez would likely display “poor planning and anticipation, [and] markedly poor decision making . . . .” As was explained at trial, the orbito-frontal portion of the brain governs “the ability to form plans, . . . the ability to be thoughtful about what you are going to do, . . . [and] the ability to slow down, and to think about, well, you know, this may not be such a good idea.”
This further reinforces counsel’s lack of competence. Counsel sought to introduce evidence of diminished capacity to the court at sentencing. Diligent counsel would have known that evidence of diminished capacity was irrelevant to Gutierrez’s sentencing because the sentence for attempted first degree murder is mandatory. (Pen. Code, § 190, subd. (a).)
The tests measured the following functions: visuo-spatial, sensory motor, intellectual, abstract/conceptual, and memory.
In short, had Wornian been able to testify based upon a complete evaluation of Gutierrez, his testimony would have been relevant and admissible on the issue of whether the shooting by Gutierrez was “accompanied by a clear, deliberate intent to kill, which was the result of deliberation and premeditation,” that is, whether Gutierrez “weigh[ed] and consider[ed] the question of killing and the reasons for and against such a choice and, having in mind the consequences, decide[d] to kill . . . .” (CALJIC No. 8.67.) In so saying, I do not suggest Wornian could have offered his opinion on whether Gutierrez had deliberated or premeditated, or even whether he had the capacity to do so—these are questions for the jury to decide. But Wornian could have testified concerning the effect on Gutierrez of his intoxication. And he could have testified concerning Gutierrez’s serious cognitive impairments—as opposed to the impairments of a purely hypothetical alcoholic. (People v. Rangel (1992) 11 Cal.App.4th 291, 299-303; cf. People v. Breaux (1991) 1 Cal.4th 281, 303.) This testimony would have been highly probative of Gutierrez’s inability to premeditate and deliberate.
The majority concludes that even apart from Gutierrez’s statements to the police there was “ample evidence” that Gutierrez’s attempt to kill was done with deliberation and premeditation. (Maj. opn., ante, at p. 6.) The majority cites, first, Gutierrez’s statement to his brother that he was “ ‘fed up’ ” with his wife and “ ‘[s]ometimes [felt] like killing her.’ ” But this statement was made when Gutierrez was intoxicated, and his brother “really didn’t pay a lot of attention.” The majority opinion then cites Gutierrez’s cutting of his weapons the night before the shooting to “suppress the temptation to kill [his wife]” and a statement made after the shooting that he had intended to kill her (id. at p. 6)—a statement that rationally supports a finding of specific intent to kill but hardly proves deliberation or premeditation. While this quantum of evidence, standing alone, might well be sufficient to support a finding of premeditation and deliberation, that is not the question before us. Our question is a narrow one: Had the jury also heard the substantial countervailing evidence demonstrating Gutierrez’s severe impairments due to intoxication and chronic alcoholism, is it reasonably probable it would have convicted Gutierrez of attempted murder without a finding of premeditation and deliberation? In my view fundamental fairness demands an affirmative response.
C. Conclusion
I would conclude that the record on its face demonstrates Gutierrez was denied the effective assistance of counsel, and that this denial was prejudicial. “ ‘By his inaction, deliberate or otherwise, counsel deprived himself of the reasonable bases upon which to reach informed tactical and strategic trial decisions . . . . [¶] [E]ven tactical decisions may demonstrate incompetence if made without the benefit of “substantial factual inquiry.” ’ ” (People v. Shaw (1984) 35 Cal.3d 535, 541-542, quoting People v. Frierson (1979) 25 Cal.3d 142, 163.) Defense counsel here could not make informed decisions at trial because he failed to complete an adequate factual inquiry prior to trial into the effects of Gutierrez’s chronic alcoholism and voluntary intoxication.
It is worth noting that, while representing Gutierrez in this case defense counsel was being investigated by the State Bar with respect to two other matters for, inter alia, violation of Rules of Professional Conduct, rule 3-110(A) (duty to perform legal services with competence) and violation of Business and Professions Code section 6068, subdivision (m) (duty to keep clients reasonably informed). The State Bar Court found that he had willfully violated the rule and the statute. (In the Matter of Nesin (Feb. 23, 2006, No. 05-01687-PEM) http://members.calbar.ca.gov/CourtDocs/ 05-O-01687.pdf [Cal. State Bar Ct. decision]) Counsel was suspended in August 2006 and then ordered to inactive status in June 2007. (See http://members.calbar.ca.gov/search/member_detail. aspx? x=119368 [as of Nov. 28, 2007].)
I would reverse the judgment and remand for a new trial.