Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 1059693
OPINION
Before Vartabedian, Acting P.J., Wiseman, J., and Cornell, J.
APPEAL from a judgment of the Superior Court of Stanislaus County. Joseph R. Distaso, Judge.
Sharon Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Janis Shank McLean and Jane N. Kirkland, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant Albert Sandner of first degree murder (Pen. Code, §§ 187, 189). The court imposed a prison term of 25 years to life.
On appeal, appellant contends (1) he was denied his constitutional right to the effective assistance of counsel by his trial counsel’s failure to object to certain evidence elicited on cross-examination and recross-examination of an expert witness testifying for the defense, and (2) the abstract of judgment and sentencing hearing minute order incorrectly state that appellant was sentenced to life without possibility of parole. We will direct the trial court to issue an amended abstract of judgment and amended sentencing minute order, and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Facts
On June 15, 2003, police found the body of Alan Colossio in the roadway near a car wash in Turlock. Colossio had died as a result of multiple stab wounds. He had also suffered blunt-force injuries, and a blood test revealed he had methamphetamine in his system. Police found, on Colossio’s person, a wallet containing credit cards but no money, keys to Colossio’s apartment, and a ring. A photograph of Colossio’s body, as it appeared when police found it, was admitted into evidence.
Further references to dates of events are to dates in 2003.
On the night of June 14, Colossio borrowed a 1995 Geo car (the Geo) belonging to his sister-in-law, BuffyAnn French. Colossio was with Gary Reed at the time.
Tiffany Cox testified to the following: On the night of June 14, appellant and Reed arrived at her motel room. Reed told Cox that Colossio wanted to buy $10.00 worth of methamphetamine. Cox told Colossio she had the drugs and he would have to go to an ATM machine to get the money to pay for them. Colossio and Reed left, and returned a short time later with appellant and James Betts. Colossio purchased the drugs and “went out to the car,” accompanied by the others, presumably to “do his drugs.”
Cox further testified to the following: Thereafter, appellant, Reed and Betts returned to Cox’s room. Reed was angry because Colossio refused to share the drugs. He said Colossio was a “tight wad motherfucker” and a child molester. In response to the latter accusation, appellant said “[t]hat we should kill him” and “that they were going to take him and kill him.” Also in “[this] part of the conversation,” appellant or Reed said “they were going to rob [Colossio’s] house.” The four men left Cox’s room shortly thereafter, along with Cox’s friend, Corrine.
William Watson testified to the following: On the evening of June 14, appellant, Reed, Betts and Colossio went to Watson’s apartment in Turlock. At one point while Colossio and Betts were in the bedroom and appellant and Reed were in the living room with Watson, Reed asked Watson for a gun. Watson testified, “I don’t remember much of [appellant] asking me for anything except some kind of weapon. It was -- no, I told him I don’t use guns, knives only. So it had to be a knife.” Shortly thereafter, the following exchange took place:
“Q Did Sandner ask you for something?
“A Specifically? I don’t remember him asking for anything outright. We didn’t talk more than five minutes.
“Q You said he asked you for a weapon?
“A Yeah, I think it was a knife. [Reed] already asked for a gun.
“Q But your recollection is Sandner asked you for a weapon and you believe it to have been a knife?
“A Yes.”
Watson further testified to the following: The four men left Watson’s apartment shortly after 4:00 a.m. on June 15. At some point before they left, Watson “showed knives,” and he and the other men consumed a total of “four little lines” of methamphetamine. Watson did not give anyone a knife, but later learned that a “Kbar” knife belonging to him was missing. He learned the knife was missing “after the officers came back and said that it was used.”
Amanda Peacock testified to the following: In June 2003, she and appellant were living together at the Modesto Inn in Modesto. At some point on the evening of June 14, Peacock, appellant and Reed were in the room when the following occurred:
“ ‘[Reed]’ was talking to [appellant] about . . . some family member of his was kidnapped . . . . and [appellant] said, I have to go take care of a child molester. You know how I feel about them.” Appellant also said “that [child molesters] don’t deserve to live.”
Cox testified to the following: Approximately two hours after leaving Cox’s room on June 14, appellant, Reed, Betts and Corrine returned. The three men appeared “shocked,” and their clothing was “splatter[ed]” with blood. Corrine “went out in the parking lot” where she stole some clothes out of a car; returned to Cox’s apartment; and gave the three men the clothes. The men went into the bathroom and changed into the clothes Corrine had supplied. They handed the clothes they had been wearing to Corrine, and left.
Peacock testified to the following: “[S]ometime” after leaving her room, before dawn, appellant, Reed and Betts returned. After Peacock came out of the bathroom, the three men “rushed into the bathroom.” Peacock heard “a lot of water noise” after which the three men came out “with different clothes on.” Peacock asked appellant “what had been going on,” and appellant responded, “There are some things you don’t need to know.” At one point, “they were all talking about ‘smashing’ somebody,” and appellant said, “we did more than ‘smash’ someone, but we’re not going to talk about that.”
Cox testified to the following: She saw appellant “[a] day or two” after the occasion in her room when appellant, Reed and Betts changed into the clothes supplied by Corrine, at which time appellant said that “when he was sticking the guy,” he (“the guy”) reached up and grabbed appellant’s clothes, and appellant “pushed him back and started sticking him some more.” Appellant also said that Reed became frightened, and “[t]hat if [Reed] opens his mouth, that he’s going to kill him too.”
According to police testimony, the following occurred on June 15: The police found the Geo parked at the Modesto Inn. Subsequently, the Geo drove off and shortly thereafter police stopped the car and arrested two of its occupants, Reed and Betts. Reed had in his possession three credit cards which belonged to French and which she kept in the glove compartment of the Geo. In the Geo, police found clothing with Colossio’s blood on it. A California Department of Justice criminalist testified appellant could not be “excluded” as a “contributor” to some of the blood found on the clothing.
City of Turlock Police Officer Michael Morgan testified to the following: Police arrested appellant on June 16. Officer Morgan conducted two interviews of appellant, on June 16 and June 17, respectively, and during those interviews appellant stated the following: Appellant, Colossio, Reed and Betts drove to “Bill’s” residence in Modesto, where there was “some conversation . . . regarding trying to obtain a gun and dope and then going from Bill’s on over to the car wash.” “[A]t some point they ended up in Turlock at a car wash waiting on what [appellant] thought was a drug deal.” The four men got out of the car, and “[a]t some point [appellant] and [Betts] were back . . . in the car and there [were] . . . cross words between . . . [Colossio and Reed].” The “[n]ext thing [appellant] knows,” Reed “is throwing him the car keys and saying, let’s go.” About this time, appellant heard Colossio screaming. After Reed threw him the keys, appellant “drove three of them . . . back to Modesto.”
Officer Morgan further testified to the following: Appellant also “talked about them planning -- that [Reed] was attempting . . . to talk to them about robbing [Colossio] of his car [and, in Colossio’s] apartment, the VCR, TV and a carton of cigarettes.” Appellant further stated the following: It was agreed appellant would be “taking part” in the robbery, and “[p]art of him taking part was he agreed to at least drive the car.” Reed and Betts “were going to beat up [Colossio] and then [appellant] was going to drive the car to wherever they were going to get dope.”
Officer Morgan further testified that appellant told him that he (appellant) “didn’t pay attention to a lot of what [Reed] was saying,” but, “[appellant] did understand the fact that they were going to take [Colossio’s] car and rob him of his property in Modesto,” and appellant “was . . . surprised that somehow they ended up in the car driving to Turlock.”
Peacock testified to the following: In June 2003, she had been living with appellant for seven months. She and appellant were addicted to methamphetamine. Appellant “suffered from mental problems” and he “had to take psychiatric medications.” When appellant took his medications, he was “more balanced” and “he could be a, quote/unquote, ‘normal’ person.” But when he was “off his medication, he would be very angry and threatening and violent.” As of June 14, appellant was taking his medications “[s]poradically . . . .”
Psychologist Wendy Weiss, Ph.D., the sole witness for the defense, testified to the following. She was appointed by the court to conduct an evaluation of appellant; she met with him in May 2005, when he was 32 years old. In June 2003, appellant was suffering from “some type of psychotic disorder.” His reported symptoms included auditory hallucinations, including “command hallucinations telling him to harm other people”; paranoid thinking; poor impulse control; depression; and anxiety. Appellant also reported the following. He was using drugs and alcohol on a daily basis by the time he was 19 years old and he began abusing methamphetamine at that age. As a child his father physically abused him and he (appellant) witnessed his mother being raped. Appellant began seeking and receiving mental health treatment in his teen years. Dr. Weiss opined that appellant was not “making up [the reported] symptoms,” and that “he has experienced genuine mental health problems from a young age.”
The defense subsequently retained Dr. Weiss as an expert witness.
Dr. Weiss further testified to the following: The long-term effects of methamphetamine use can include violence, auditory hallucinations and “other psychotic symptoms, such as paranoia, delusions.” Methamphetamine use “would have a tendency to exacerbate [the] symptoms [of someone with a psychotic disorder].” Drugs and alcohol “tend to have a disinhibiting effect, preventing someone from having the kind of control over their behavior and emotions that they might have in the absence of drugs.” Dr. Weiss opined, “I don’t believe that [appellant] was in total control of his faculties on the date of the incident. . . . I also think that he was experiencing the effects of methamphetamine, some disinhibition, some inability to think as clearly as when he would be stable on medication and not taking drugs.”
On cross-examination, Dr. Weiss confirmed that in a report she submitted to the court in May 2005, she stated the following: “Even if [appellant] had experienced voices telling him to cause harm to the victim, there is no indication that he lacked knowledge that this behavior was wrong. It appears that he along with the codefendants were able to make a plan of action and that they acted in a purposeful and goal-directed way to execute this plan of action. It appears that they sought out weapons to commit the alleged events and inquired about an appropriate location to take the victim to in order to commit the alleged offense.” (Italics added.)
On recross-examination, Dr. Weiss confirmed that she had reviewed medical records which indicated the following: in a 1993 interview, appellant made the following statements: “ ‘I flipped out in March and almost killed my boss’ ”; “ ‘I like the taste, color, and smell of blood’ ”; and “ ‘I just like pain, getting it and inflicting it on others. I’ve always been violent, even as a kid.’ ”; Dr. Weiss also confirmed that she had reviewed a 2001 report which contained the observation that appellant “ ‘[a]ppears to enjoy talking about his past violent episodes and considers himself to be . . . ‘ “creative when angry[]” . . . .’ ”
We refer to the evidence summarized in this paragraph as the medical records evidence.
Closing Argument
Defense counsel told the jury in closing argument, “I’m about to do something I’ve never done in my almost 25 years of practicing law. I’m going to ask you to find my client guilty of murder, but murder in the second degree.” Counsel argued that appellant, because of his addiction and mental illness, could neither premeditate, deliberate nor form the specific intent to rob, and therefore did not have the mental state required for first degree murder.
The prosecutor countered by reading the portion of Dr. Weiss’s May 2005 report that included her opinion that appellant planned his acts and acted in accordance with his plan. The prosecutor then argued, “That was the defense expert’s testimony, saying that that was indeed her conclusion after evaluating [appellant], the police reports, and all the surrounding circumstances.”
Verdict
The jury’s verdict included the following statements: “We further find that the Murder was intentional, deliberate and premeditated. [¶] We further find that the Murder was committed during the course of a Robbery, in violation of Section 211 of the California Penal Code.”
DISCUSSION
Ineffective Assistance of Counsel
Appellant first argues that his trial counsel was constitutionally ineffective in failing to object to the evidence that Dr. Weiss had opined in her May 2005 report that at the time of the instant offense, appellant “was able to make a plan of action” and “acted in a purposeful and goal-directed way to execute this plan of action.” This evidence, appellant asserts, was inadmissible because it, in effect, allowed Dr. Weiss to testify as to elements of the mental state required for first degree murder—viz., premeditation, deliberation and, as relevant to the prosecution’s felony murder theory, specific intent to commit robbery—in contravention of Penal Code section 29, which provides, in relevant part, that “[i]n the guilt phase of a criminal action, any expert testifying about a defendant’s mental illness, mental disorder, or mental defect shall not testify as to whether the defendant did or did not have the required mental states . . . for the crimes charged.”
“Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel.” (People v. Ledesma (1987) 43 Cal.3d 171, 215.) “The burden of proving ineffective assistance of counsel is on the defendant.” (People v. Babbitt (1988) 45 Cal.3d 660, 707.) “To prevail on a claim of ineffective assistance, a defendant must show both that counsel’s performance was deficient—it fell below an objective standard of reasonableness—and that defendant was thereby prejudiced.” (People v. Cash (2002) 28 Cal.4th 703, 734.) On direct appeal, in order for a defendant to show deficient performance by counsel, “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.) And to show prejudice, the defendant must establish a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland v. Washington (1984) 466 U.S. 668, 694 [104 S.Ct. 2052, 2068] (Strickland).)
We assume without deciding the following: the evidence in question was inadmissible; the record establishes that counsel had no rational tactical purpose for not objecting to this evidence; and therefore appellant has made the required showing that his counsel’s performance was not objectively reasonable. Accordingly, we turn to an examination of the prejudice prong of our inquiry. (Strickland, supra, 466 U.S. at p. 697 [“a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies”].)
Resolution of this question turns on the distinction between first degree murder and second degree murder. First degree murder is defined as “willful, deliberate, and premeditated killing[.]” (Pen. Code, § 189.) “Second degree murder is defined as the unlawful killing of a human being with malice aforethought, but without the additional elements—i.e., willfulness, premeditation, and deliberation—that would support a conviction of first degree murder. [Citations.]” (People v. Nieto Benitez (1992) 4 Cal.4th 91, 102.) In addition, under what is commonly called the felony murder doctrine, first degree murder also includes any “murder . . . committed in the perpetration of, or attempt to perpetrate [certain enumerated felonies including robbery].” (Pen. Code, § 189.) “The felony-murder doctrine . . . eliminates the requirements of malice and premeditation for first degree murder and provides that a killing is still murder of the first degree, whether intentional or unintentional, if it is committed in the perpetration of, or the attempt to perpetrate, [the enumerated] felonies . . . .” (People v. Portillo (2003) 107 Cal.App.4th 834, 843.) “ ‘The mental state required is simply the specific intent to commit the underlying felony; neither intent to kill, deliberation, premeditation, nor malice aforethought is needed. [Citations.]’ ” (People v. Hart (1999) 20 Cal.4th 546, 608, quoting People v. Berryman (1993) 6 Cal.4th 1048, 1085.)
As indicated above, there was essentially no dispute that appellant was guilty of murder; the only point of contention was whether he committed murder in the first or second degree. And as appellant asserts, Dr Weiss’s opinion that appellant planned his actions is strong evidence that appellant acted with premeditation and deliberation and had the specific intent to commit robbery, and therefore possessed the mental state required for first degree murder.
However, the record contains ample properly admitted evidence on this point from other sources. First, the People presented evidence that appellant made certain statements in the hours leading up to Colossio’s murder: Cox testified that in response to Reed’s statement that Colossio was a child molester, appellant said “[t]hat we should kill [Colossio]” and “that they were going to take him and kill him”; Watson testified that appellant asked Watson for a weapon; and Peacock testified that appellant said, “I have to go take care of a child molester.” In addition, Officer Morgan’s testimony regarding statements appellant made while in custody, after Colossio was killed, regarding appellant’s participation in the planning to rob Colossio, provides further support for the proposition that appellant had the capacity to premeditate and deliberate at the time of the instant offense.
Moreover, putting aside the question of premeditation and deliberation, Officer Moran’s testimony regarding appellant’s statements constitutes strong evidence that appellant acted with the specific intent to rob Colossio, and was therefore guilty of first degree murder on a felony murder theory.
Appellant argues that the evidence tending to prove appellant acted with premeditation consists in large part of the testimony of unreliable witnesses. We recognize Watson, Peacock and Cox were admitted methamphetamine users; Watson and Cox had ingested methamphetamine near the time of the incriminating statements about which they testified; and several additional factors cast doubt on Cox’s veracity. She had suffered a prior conviction of aggravated assault, she was an admitted methamphetamine dealer and when interviewed by police in December 2003, she had difficulty identifying a photograph of Colossio. However, Cox and Peacock corroborated each other to some extent, in that both referred to appellant’s antipathy toward child molesters. And most significantly, the testimony of Officer Morgan, whose veracity appellant does not challenge, is, as demonstrated above, strong evidence that appellant had the mental state required for first degree murder. On this record, appellant has not met his burden of establishing that had Dr. Weiss’s opinion evidence been excluded, a result more favorable to appellant was reasonably probable.
Appellant also argues that he was denied his right to effective assistance of counsel by his counsel’s failure to object to the medical records evidence adduced on recross-examination of Dr. Weiss. This evidence, appellant argues “made it appear [he] was bloodthirsty, violent and sadistic,” and was inadmissible under Evidence Code sections 352, because it was “unduly prejudicial,” and 1101, subdivision (a), because it constituted improper character evidence. Again, we assume without deciding that counsel’s failure to object to the evidence in question was not objectively reasonable, and we proceed directly to the prejudice portion of the ineffective-assistance-of-counsel inquiry.
Evidence Code section 352 provides: “The court in its discretion may 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.”
Evidence Code section 1101, subdivision (a) provides, in relevant part, that, with exceptions, “evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.”
As summarized above, there was ample evidence that appellant participated in and, indeed, was the perpetrator of Colassio’s murder, including evidence that appellant admitted that he “was sticking” Colossio and, that after Colossio tried to defend himself, appellant “started sticking him some more.” We note also that in closing argument defense counsel acknowledged that the photograph of Colossio admitted into evidence “was just very, very difficult to see . . . .” In our view, is not reasonably probable that the medical records evidence added appreciably to the jurors’ view of appellant’s propensity for violence. Appellant has not met his burden of establishing that counsel’s failure to object was prejudicial.
Abstract of Judgment and Sentencing Minute Order
As appellant notes, although the court sentenced appellant to 25 years to life in prison, the sentencing hearing minute order indicates a sentence of 25 years to life without possibility of parole and the abstract of judgment similarly indicates a sentence of life without possibility of parole. We will direct the trial court to issue an amended abstract of judgment and an amended minute order correcting these errors, and to send a certified copy of each document to the Department of Corrections.
DISPOSITION
The trial court is directed to (1) issue an amended abstract of judgment and an amended sentencing minute order, with each document to indicate that appellant was sentenced to 25 years to life in prison, and (2) send a certified copy of each of these documents to the Department of Corrections. As modified, the judgment is affirmed.