Opinion
NOT TO BE PUBLISHED
Sup. Ct. No. CM023539
MORRISON, J.
Defendant was charged with inflicting corporal injury to a cohabitant (Pen. Code, § 273.5, subd. (a)) (count 1), and two counts of making criminal threats (Pen. Code, § 422) (counts 2 & 3). Count one further alleged that defendant had been convicted of two other domestic violence crimes (Pen. Code, § 273.5) in the last seven years. The information also alleged that defendant had (1) been convicted of a violent or serious felony within the meaning of Penal Code section 1170.12; (2) been convicted of a serious felony within the meaning of Penal Code section 667, subdivision (a)(1); and (3) served three prison terms within the meaning of Penal Code section 667.5. A jury convicted defendant on count 3, but acquitted him of counts 1 and 2. It also found the three prison term enhancements to be true. The court dismissed the strike and prior serious felony allegations for insufficient evidence.
First, defendant contends that the trial court erred in admitting evidence of prior acts of domestic violence because Evidence Code section 1109 (Section 1109) is unconstitutional, their prejudicial effect outweighed their probative value, and the jury instructions unconstitutionally diluted the People’s burden of proof.
Second, defendant contends he was prejudiced when the trial court abused its discretion by allowing the People to call an expert witness despite a violation of the criminal discovery statute. (Pen. Code, § 1054 et. seq.)
Third, defendant contends the trial court erred in denying his motion for a new trial, based on either (1) newly discovered evidence or (2) ineffective assistance of counsel.
We affirm.
Factual and Procedural Background
Defendant and longtime companion Gabriella Tedford have been together for 10 years and have 4 children. During the course of their relationship, defendant has physically abused Tedford.
On Sunday, April 17, 2005, Tedford called 911. She told the dispatcher that defendant threatened her and she was afraid he would punch her. She told a police officer who responded to her call that she and defendant had fought Friday night, April 15, 2005. She said that while she was lying down with one of her children, he grabbed and squeezed her face, pulled her hair, and told her that he was going to kill her. He also threatened to hurt her with a bat if she did not shut up. She claimed that defendant left scratches and bruises on her face. Police took pictures of an abrasion below her left eye and a swollen right cheek (which were later admitted at trial).
Defendant did not physically assault Tedford Sunday evening. Instead, when defendant returned home, he told Tedford “it was time” and “he was going to beat her ass,” while punching his hand with his fist, shutting the blinds in the house, breaking a cell phone and a potted plant, and knocking at least one picture off the wall. Police took pictures of the broken cell phone, picture frame, and potted plant.
At trial, the court admitted Tedford’s testimony describing two of defendant’s prior acts of domestic violence towards her on June 28, 1998, and November 11, 1999. The People admitted photographs of Tedford’s injuries from those two prior incidents. On cross-examination, defense counsel elicited that defendant was arrested and placed in jail following both incidents.
Tedford recanted concerning counts 1, 2, and 3 in this case. She denied telling police that defendant squeezed her face. She also testified that she lied to police when she claimed that defendant pulled her hair or threatened her in any way. Furthermore, Tedford testified that her injuries were from a fight that she had with a woman named Brandi Ross on Friday night, April 15. Ross was allegedly having an affair with defendant. According to Tedford, they bit and scratched each other. Defendant broke up the fight. Tedford did not tell police about the fight because she was embarrassed.
Among others, the People called Officer Scott Terry and Pamela Chambers to testify. Officer Terry recounted his investigation of the case and his collection of physical evidence at the scene. Over defense objection, Chambers, a victim’s counselor with the Butte County District Attorney’s Office, gave expert testimony on Battered Woman’s Syndrome (BWS) and its effect on victims, generally.
Defendant advanced an alibi defense. He called Ross, who testified that she and Tedford fought on Friday, April 15. Ross met defendant Saturday morning, April 16, and they spent the night together at a motel, checking out on Sunday, April 17, at 11:00 am. Defendant introduced a corroborating receipt.
Defendant also called his half-brother, Freddy Lee Bluford. Bluford testified that on Monday, April 18, Tedford told him that she falsely accused defendant, and that defendant did not abuse or threaten her on either Friday or Sunday nights. Bluford was impeached for his bias and by his conviction in 1994 for a theft-related felony.
Prior to sentencing, defendant filed a motion for a new trial, arguing that his mental illness was newly discovered evidence, or alternatively, trial counsel’s failure to present a mental illness defense amounted to ineffective assistance of counsel.
The court denied the motion for a new trial. It found the verdict supported by credible and substantial evidence and not contrary to law or the evidence. The evidence of mental illness was not newly discovered. Trial counsel’s tactical decision to not raise the mental health issues was “certainly reasonable under the circumstances.” The court would consider the defendant’s mental health at sentencing.
Defendant was sentenced to the middle term of two years in state prison, and three 1-year terms for the prison enhancements under Penal Code section 677.5.
Discussion
I
Validity of Section 1109: Due Process And Equal Protection
Defendant claims that Section 1109--which grants a trial court the discretion to admit uncharged acts of domestic violence to show his propensity to commit the charged offenses involving domestic violence--is “facially invalid under the [federal Constitution’s] due process and equal protection clauses.” We disagree.
The constitutionality of Section 1109 is settled. This court has held that Section 1109 does not offend due process. (People v. Johnson (2000) 77 Cal.App.4th 410, 417 [Section 1109 valid by “parity of reasoning” to “virtually identical” Evidence Code section 1108 (section 1108)]; see People v. Falsetta (1999) 21 Cal.4th 903, 920-922 [holding section 1108 does not violate due process requirements].) Nor does Section 1109 violate equal protection of law. (People v. Jennings (2000) 81 Cal.App.4th 1301, 1313; see People v. Fitch (1997)55 Cal.App.4th 172, 184 [Evid. Code, § 1108 did not offend equal protection].)
Defendant’s claim fails.
Admission of Prior Domestic Violence under Penal Code Section 1109
Defendant next contends that the trial court abused its discretion, under Evidence Code section 352 (section 352) by admitting his prior criminal acts to show his propensity for domestic violence. He argues that the trial court further abused its discretion by refusing to admit evidence of defendant’s guilty pleas to the prior criminal acts, once they had been admitted. We conclude that the trial court properly exercised its discretion under section 352.
Uncharged offenses offered to show a defendant’s propensity for domestic abuse are not made inadmissible by the general rule against propensity evidence. But such evidence must be admissible under section 352. (§ 1109, subd. (a).) Per section 352, a trial court has the discretion to “exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
A trial court’s exercise of its statutorily-vested discretion “‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.’” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124, original italics.) When a trial court makes a ruling denying a party's request for exclusion under Section 352, “‘the record must affirmatively show that the trial judge did in fact weigh prejudice against probative value.’” (People v. Mickey (1991) 54 Cal.3d 612, 656.) However, “the trial judge need not expressly weigh prejudice against probative value--or even expressly state that he has done so[.]” (Ibid.) Here, the trial court admitted two of three of defendant’s uncharged domestic violence offenses. We examine each ruling in turn.
The November 13, 1999 Incident
The court admitted the November 13, 1999 incident. The People’s offer of proof was that the defendant struck Tedford in the face with an open hand. She was holding their 20 month old child in her arms. The People had pictures of Tedford’s injuries from that incident. Defendant objected to the evidence, claiming undue prejudice under section 352. The court responded, saying that “[a]t some point 352 may come into play, but I don’t feel it comes into play at the very outset when we are talking about the very first incident under 1109.”
The court misstated the law. Admissibility of all Section 1109 evidence is predicated upon a balancing of undue prejudice against probative value in a section 352 balancing test. (Evid. Code, § 1109, subd. (a)(1); Fitch, supra, 55 Cal.App.4th at p. 183.) While the trial court’s statement of the law is erroneous, in other respects, the trial court’s analysis was correct, paying close attention to remoteness and corroboration. It is likely that the trial court felt that the evidence’s probity manifestly outweighed its prejudicial value. This conclusion is supported by our analysis, which shows the judgment was correct. (See People v. Brown (2004) 33 Cal.4th 892, 901 [“‘“[A] ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for the wrong reason.”’”].)
In People v. Harris (1998) 60 Cal.App.4th 727, 737-742, this court articulated five factors a trial court must consider when conducting a Section 352 balancing test in Section 1108 cases, applicable here, by “parity of reasoning[.]” (Johnson, supra, 77 Cal.App.4th 410, 417.) Section 1109 provides that corroboration of the evidence must be considered as a factor under a Section 352 balancing test. (Evid. Code, § 1109, subd. (d)(3).) Consequently, we look at the following six factors: (1) inflammatory nature of evidence; (2) probability of jury confusion; (3) remoteness of evidence; (4) undue consumption of time; (5) corroboration of the evidence; and (6) the prior acts’ probative value. (Harris, supra, 60 Cal.App.4th pp. 737-742; Evid. Code, § 1109, subd. (d)(3).)
All of the factors weigh in favor of admissibility of the November 13, 1999 incident. The evidence was “no stronger and no more inflammatory than the testimony concerning the charged offenses,” because the crimes and facts from the charged and uncharged offenses were similar, and the testimony was not graphic or lurid. (Harris, supra, 60 Cal.App.4th 727, 737-740; see People v. Ewoldt (1994) 7 Cal.4th 380, 405.) Nor was the jury confused on the issues. Evidence of actual conviction and sentencing for an uncharged offense “ensur[es] that the jury would not be tempted to convict the defendant simply to punish him for the other offenses, and that the jury's attention would not be diverted by having to make a separate determination whether defendant committed the other offenses.” (Falsetta, supra, 21 Cal.4th 903, 917; Harris, supra, at p. 738.) Any fear of the jury punishing defendant for the prior acts was dispelled by testimony that he was arrested and jailed for the uncharged offense. (See People v. Callahan (1999) 74 Cal.App.4th 356, 371.) The evidence was not too remote, as all of the uncharged offenses, including the November 13, 1999 offense, fell within the 10-year statutory period. (§ 1109, subd. (e).) The presentation of the evidence did not unduly consume time; it covered only two transcript pages, was only briefly mentioned in closing arguments, and required three additional jury instructions. The prior acts were corroborated by photographs of the injuries, which were introduced and authenticated at trial. Finally, the prior act evidence was “exactly the type of evidence contemplated by the enactment” of sections 1108 and Section 1109. (People v. Soto (1998) 64 Cal.App.4th 966, 991-992.) The uncharged offense evidence was very probative of defendant’s propensity to inflict corporal punishment on Tedford, “given [its] close resemblance” to the charged offenses. (People v. Yovanov (1999) 69 Cal.App.4th 392, 406.)
The trial court’s admission of the November 13, 1999 uncharged offense was not an abuse of discretion.
The June 28, 1998 Incident
The trial court also admitted the June 28, 1998 uncharged offense. As noted earlier, the offense was not too remote. The People offered that Tedford was washing dishes when the defendant grabbed her around the neck, choked her and lifted her off the floor. He then let go and choked her again. She was holding their 20-month-old child in her arms. The People also had pictures of Tedford’s injuries from the assault. Defense again objected on section 352 grounds. Before ruling, the trial court first asked the People “what type of physical violence was alleged” in count 1, the charged offense. The People offered that Tedford alleged defendant squeezed her face and crushed it, that he may have broken her jaw, and that he grabbed her hair and yanked her head around.
Here, the trial court properly exercised its discretion for the record. He compared the prosecution’s offer of proof to the description of the violence in count 1 before admitting the evidence. In doing so, the trial court impliedly weighed the prejudicial nature of the evidence, by evaluating the evidence’s inflammatory nature, corroboration, remoteness, and its probative value. For these reasons, as well as those set out above, the trial court did not abuse its discretion by admitting the June 28, 1998 uncharged offense.
Exclusion of Defendant’s Guilty Pleas
Defendant argues that, after admitting his prior acts, the trial court further abused its discretion by excluding evidence of his guilty pleas to those offenses. We disagree.
As noted earlier, the concern regarding uncharged offenses and juries’ confusion of the issues, relates to whether a defendant was punished, not to whether a defendant accepts responsibility for his actions. (See Falsetta, supra, 21 Cal.4th 903, 917; Harris, supra, 60 Cal.App.4th 727, 738.) At trial, defendant sought to admit his guilty pleas to show that he took responsibility for his actions. The trial court rightly found that admitting the pleas for this purpose irrelevant.
Assuming the guilty pleas were offered to show punishment and not remorse, as defendant now argues, his argument still fails. Tedford testified on cross-examination that defendant was arrested and “taken to jail” for the uncharged offenses. It is likely the jury inferred that defendant was incarcerated for the uncharged offenses. (See People v. Callahan, supra, 74 Cal.App.4th 356, 371.) Given this inference, it is unlikely the jury sought to punish the defendant for his prior crimes. The trial court did not abuse its discretion in excluding the guilty pleas.
Defendant Was Not Prejudiced By the Uncharged Offenses
Furthermore, defendant was not prejudiced because he was convicted only on count 3, which did not depend on the propensity evidence. Instead, count 3 was supported by strong evidence: Officer Scott’s testimony; Tedford’s 911 call; and photographs of a broken picture frame, plant, and cell phone at the scene. There is no reasonable probability that a result more favorable to the defendant would have been reached if the uncharged offenses were excluded. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Section 1109 Jury Instructions
Defendant contends that the trial court committed constitutional error by instructing the jury with the following standard jury instructions: CALJIC Nos. 2.50.02 (7th ed. 2003) [“Evidence of Other Domestic Violence (Evid. Code, § 1109)”]; No. 2.50.1 [“Evidence of Other Crimes by the Defendant Proved By A Preponderance of the Evidence”]; and No. 2.50.2 [“Definition of the Preponderance of the Evidence”]. This court has already held that instructing a jury with post-1999 revised CALJIC Nos. 2.50.02 and 2.50.1 does not dilute the People’s burden to prove guilt beyond a reasonable doubt. (People v. Pescador (2004) 119 Cal.App.4th 252, 261-262; accord People v. Brown (2000) 77 Cal.App.4th 1324, 1335-1337).
Defendant argues, however, that the instructions are deficient under Gibson v. Ortiz (9th Cir. 2004) 387 F.3d 812, which held that CALJIC Nos. 2.50.01 [section 1108 propensity evidence] and 2.50.1 (6th ed. 1996) unconstitutionally diluted the People’s burden of proof. (Id. at p. 822.) Defendant’s reliance on Gibson is misplaced. Gibson specifically limited itself to the language of pre-1999 CALJIC Nos. 2.50.01 and 2.50.1, noting in its opinion that the Falsetta court approved of the post-1999 revisions to the CALJIC instructions. (Gibson, supra, 387 F.3d 812, 818-819; see Falsetta, supra, 21 Cal.4th 903, 923 [section 1108 does not offend federal due process in part because defendant can request instructions such as CALJIC No. 2.50.01]; see also People v. Reliford (2003) 29 Cal.4th 1007, 1012 [CALJIC No. 2.50.01 constitutional for section 1108 propensity evidence].)
Accordingly, we reject defendant’s contention.
II
Defendant contends that the trial court abused its discretion by admitting Chambers’s expert testimony over trial counsel’s objection. He argues that Chambers’s testimony should have been excluded because the People, acting in bad faith, failed to notify him that they intended to call her until trial. The trial court did not abuse its discretion when it allowed Chambers’s limited testimony.
We review a trial court’s discovery ruling under an abuse of discretion standard. (People v. Lamb (2006) 136 Cal.App.4th 575, 581.) Under the Criminal Discovery Statute (Pen. Code, § 1054 et. seq.), a defendant is entitled to discover expert witnesses’ names, addresses, statements, and examination results that “the prosecution reasonably anticipates it is likely to call” to testify (Pen. Code, § 1054.1; Izazaga v. Superior Court (1991) 54 Cal.3d 356, 376, fn. 11.) Disclosure must be made at least 30 days prior to trial, and, if information is discovered within 30 days of trial, disclosure must be made immediately. (Pen. Code, § 1054.7.)
The trial court reasonably concluded that the prosecution violated the discovery law. The prosecution normally discloses Chambers as a potential witness in domestic violence cases, regardless of whether she is actually called to testify. When a domestic violence victim recants, the prosecution has a “reasonable intention” to have an expert witness, such as Chambers, testify about BWS. The prosecution claimed that it did not discover that Tedford would recant until after the trial readiness conference, which was scheduled over two days, July 11-12, 2005. Instead of “immediately” informing the defense it would call Chambers, the prosecution waited two weeks.
Defendant contends that Chambers’s testimony should have been excluded. “‘[A] trial court may, . . . “consider a wide range of sanctions” in response to [a] violation of a discovery order’” (People v. Ayala (2000) 23 Cal.4th 225, 299), including, but not limited to: (1) immediate disclosure; (2) contempt proceedings; (3) delaying the testimony of a witness; (4) excluding the testimony of a witness; (5) continuance of the matter; (6) dismissal of charges; (7) instructing the jury about the discovery violation. (Pen. Code, § 1054.5, subd. (b). A court can order the exclusion of an undisclosed witness’ testimony only if all other sanctions have been exhausted, and not if less severe sanctions will be effective. (Pen. Code, § 1054.5, subd. (c); People v. Edwards (1993) 17 Cal.App.4th 1248, 1265; People v. Jackson (1993) 15 Cal.App.4th 1197, 1203.)
Exclusion was not warranted in this case, because the trial court’s options to respond to the violation were neither exhausted nor insufficient. Defense counsel did not request a continuance, but instead, objected to Chambers offering her opinion as to the facts of the case. The trial court sustained the objection. It limited Chambers’s testimony to her meeting with Tedford (to rebut an allegation that Chambers threatened to charge Tedford with lying to the police), as well as to the general effects of BWS. The trial court also proposed a jury instruction on delayed discovery. The defendant refused it. We infer from this that even the defense felt the trial court’s sanctions were effective and exclusion of her testimony was not warranted.
In any event, defendant has not shown that he was prejudiced by its admission. (People v. Carpenter (1997) 15 Cal.4th 312, 386-387; see Watson, supra, 46 Cal.2d 818, 836.) Given that count 3 was supported by compelling evidence, we are unable to conclude that the late discovery of Chambers’s testimony prejudiced the defendant.
III
Defendant further argues that the trial court abused its discretion by denying his motion for a new trial, based on either (1) newly discovered evidence or (2) ineffective assistance of counsel. We disagree.
A trial court’s ruling on a motion for a new trial “must be judged from its own factual background” (People v. Dyer (1988) 45 Cal.3d 26, 52), and “‘will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.’” (People v. Williams (1988) 45 Cal.3d 1268, 1318.)
The parties stipulated to several facts concerning the defendant’s medical history. The defendant had been treated for paranoid schizophrenia and polysubstance abuse at Butte County Behavioral Health. He reported audio/visual hallucinations and psychotic behavior whenever he was not on his medication. Sometime prior to April 18, 2005, defendant stopped taking his medication. He receives supplemental security income, and his Social Security records indicate that defendant has been diagnosed with schizophrenia, paranoia, and other psychotic behaviors.
There is evidence in the defendant’s sentencing report, dated August 15, 2005, that directly contradicts this stipulation. Stipulated facts are binding on appellate review. Facts recited in an agreed statement take the place of factual findings, binding the parties and the court. (Institoris v. City of Los Angeles (1989) 210 Cal.App.3d 10, 17; Capital National Bank v. Smith (1944) 62 Cal.App.2d 328, 343.) Therefore, we take the stipulated facts as true.
The parties also stipulated to the substance of trial counsel’s testimony, if he were to testify. Defendant and trial counsel never discussed mental issues until after the receipt of the August 18, 2005 sentencing report. Trial counsel knew defendant took medication for mental illness because he had represented him previously. But he did not find the defendant mentally incompetent during trial preparation. Trial counsel and defendant discussed the facts of the case, and the defendant claimed a factual defense. Trial counsel offered two witnesses and a motel receipt to support defendant’s alibi.
The “Newly Discovered” Mental Illness Evidence
The mental illness evidence was not newly discovered. Evidence cannot serve as grounds for a new trial if it was actually known to the defendant or his counsel at the time of trial. (People v. Delgado (1993) 5 Cal.4th 312, 328; People v. Greenwood (1957) 47 Cal.2d 819, 822.) It is undisputed that both defendant and counsel knew about his mental illness before and during trial. The court did not abuse its discretion; defendant’s mental illness was not newly discovered and thus, does not justify a new trial.
Ineffective Assistance of Trial Counsel
We disagree with the defendant that there “was no excuse for the trial defense counsel failing to investigate [defendant’s] mental issues as a possible defense.” Nor has defendant shown that “counsel's performance was deficient” and that “the deficient performance prejudiced the defense[,]” depriving him of a fair trial. (Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].)
Trial counsel made a reasonable strategic choice to present the alibi defense, and was under no duty to further investigate the mental illness. “[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” (Id. at pp. 690-691).) We “evaluate the conduct from counsel’s perspective at the time. . . . indulg[ing] a strong presumption that counsel [provided] reasonable professional assistance[.]” (Id. at p. 689.) Trial counsel explained that he knew defendant took medication for mental illness, but the defendant claimed a factual defense during discussions of the case. Both Tedford and Ross could testify that Tedford’s injuries were due to a fight between the two women on Friday, April 15. Ross could also testify that she and defendant spent Saturday night in a motel, which was corroborated by a receipt for the room. Moreover, Tedford recanted, and Bluford could testify that Tedford told him the day after the defendant was arrested that she falsely accused defendant.
Defendant’s alibi provided a complete defense to counts 1 and 2: Not only was he not responsible for Tedford’s injuries, but he was not even at home on Saturday night, when the alleged assault occurred. As to count 3, the alibi, the motel receipt, Tedford’s recantation, and testimony from Ross and Bluford, combined to reveal Tedford’s accusations as false and disprove the People’s case. Choosing this alibi defense was reasonable.
Moreover, choosing to limit investigation into a mental illness defense was reasonable. Defendant was charged with a general intent crime (count 1) and two specific intent crimes (counts 2 & 3). Pen. Code, § 273.5, 422; see People v. Toledo (2001) 26 Cal.4th 221, 228; People v. Thurston (1991) 71 Cal.App.4th 1050, 1053.) Under Penal Code section 28, evidence of mental illness may be offered to show absence of specific intent but to not prove absence of general intent. (People v. Jefferson (2004) 119 Cal.App.4th 508, 519.) The alibi defense addressed all counts, while a mental illness defense only went to the domestic violence charge and it would have contradicted his alibi defense.
Where a weaker mental illness defense conflicts with a stronger alibi defense, it falls within the range of professional competence to not present evidence of mental illness which “‘contradict[s] the primary defense theory.’” (Bean v. Calderon (9th Cir. 1998) 163 F.3d 1073, 1082.) Choosing an alibi defense under those circumstances is a “reasonable strategic choice.” (Ibid.) “Once [defense counsel] reasonably chose that theory, largely on the basis of [defendant’s] own representations, his duty to investigate the directly conflicting [mental illness] defense was at an end.” (Ibid.)
Additionally, defendant cannot show that he was prejudiced. This case is similar to In re Avena (1996)12 Cal.4th 694. There, defendant was not prejudiced by counsel’s failure to investigate and present a defense of diminished capacity based on defendant's alleged phencyclidine (PCP) intoxication during commission of the crimes. Although defendant never told counsel that he was “high” on PCP the night of the crimes, evidence of defendant’s habitual PCP usage was available to counsel, and counsel should have investigated the defense. However, counsel’s unjustified failure was not prejudicial. The evidence only established that defendant was a habitual user, but not that he actually ingested PCP and was thus unable to form the specific intent during the crime. (Id. at pp. 723-724.)
The same reasoning applies here. Defendant does not allege, nor does he point to any evidence that he was actually experiencing a schizophrenic or psychotic episode while committing the offense charged under count 3. Rather, defendant merely points to the general symptoms and records of his diagnosed schizophrenia. As in Avena, supra, 12 Cal.4th 694this does not negate the specific intent element required by Penal Code section 422. It fails to show that he did not actually intend to threaten Tedford during the April 17th incident because of his mental illness. Defendant’s arguments are speculative, and he cannot demonstrate prejudice based on pure speculation. (People v. Lucas (1995) 12 Cal.4th 415, 436.)
Defendant was not prejudiced by his trial counsel’s reasonable, tactical decision to forego a mental illness defense in favor of an alibi defense. The trial court did not abuse its discretion in denying defendant’s motion for a new trial.
Disposition
The judgment is affirmed.
We concur: NICHOLSON, Acting P.J., ROBIE, J.