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People v. Theriault-Odom

California Court of Appeals, Second District, Sixth Division
Feb 17, 2011
No. B223026 (Cal. Ct. App. Feb. 17, 2011)

Opinion

NOT TO BE PUBLISHED

Superior Court County of Los Angeles No. LA061232 Susan M. Speer, Judge.

Carla Castillo, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Kamala Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, David F. Glassman, Deputy Attorney General, for Plaintiff and Respondent.


YEGAN, J.

Rianne Theriault-Odom appeals from the judgment entered after her conviction by a jury of aggravated mayhem and torture. (Pen. Code, §§ 205, 206.) The jury acquitted her of attempted murder and attempted voluntary manslaughter. (§§ 664, 187, 192.) She was sentenced to state prison for life.

All statutory references are to the Penal Code.

Appellant contends that defense counsel was ineffective because (1) counsel failed to timely object to the prosecutor's improper rebuttal argument and request "an opportunity to respond in surrebuttal, " and (2) counsel failed to request an instruction - CALCRIM No. 3426 - informing the jury that it could consider appellant's voluntary intoxication in deciding whether she had the requisite specific intent for aggravated mayhem and torture. We affirm.

Facts

Prosecution Evidence

Roberta Busby worked as a dancer at a nightclub. At about 1:30 a.m. on February 5, 2009, Busby and appellant started fighting outside the nightclub. During the fight, appellant doused Busby with gasoline. Appellant pulled out a cigarette lighter, lit it, and put it close to Busby's clothing. Busby burst into flames. Two witnesses identified appellant as the one who had doused Busby with gasoline and had set her on fire.

Busby was hospitalized for five months and had 30 surgeries. She suffered severe, disfiguring injuries.

Defense Evidence

Appellant testified as follows: A man known to her as "Deuce" was living at her residence. Between 9:00 and 10:00 p.m. on February 4, 2009, appellant drove Deuce to the nightclub where Busby worked. Deuce introduced appellant to Busby, who insulted appellant. Appellant confronted Busby, but they quickly made up and appellant believed that the incident "was over."

Appellant and Deuce left the nightclub and returned shortly before 2:00 a.m. "[E]verything was really blurry" because appellant "was drunk." Starting at about 6:00 p.m. that evening, appellant had drunk "two double shots of Vanilla Stoli [vodka]... and half a fifth of Patron [tequila]." In addition, she had drunk "about five shots of Hennessy [cognac]."

Appellant walked toward the nightclub's restroom, but Busby blocked the way there. Appellant "turned around to walk out." When appellant stepped outside, she turned around again and Busby began hitting her in the face. Appellant "was trying to hold [her] hands up and block [her] face." Appellant fell to the ground. While she was getting up, Busby "suddenly went on fire." Before Busby caught fire, appellant saw Deuce throw a "liquid" at Busby. After Busby caught fire, Deuce grabbed appellant and said, "Let's go, I'm on probation, I don't have time for this." Appellant and Deuce drove away together in appellant's car.

Several days before the commission of the crime, Deuce told appellant that he "was gonna burn" Busby because she had "set him up" on a drug charge. At Busby's request, Deuce had held "her cigarette pack that had methamphetamines in it." The police "rolled up" and arrested Deuce. He was convicted of possessing methamphetamine and spent six months in jail.

Standard for Evaluating Claim of Ineffective Counsel

The standard for evaluating appellant's claim of ineffective counsel is enunciated in Strickland v. Washington (1984) 466 U.S. 668 [104 S.Ct. 2052, 80 L.Ed.2d 674]. "First, [appellant] must show that counsel's performance was deficient.... Second, [appellant] must show that the deficient performance prejudiced the defense." (Id., 466 U.S. at p. 687.)

"Judicial scrutiny of counsel's performance must be highly deferential.... [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, [appellant] must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' [Citation.]" (Strickland v. Washington, supra, 466 U.S. at p. 689.)

Appellant "must prove prejudice that is a ' "demonstrable reality, " not simply speculation.' [Citations.]" (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.) "[Appellant] must show that there is 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, supra, 466 U.S. at p. 694.)

Counsel's Asserted Failure to Object to Rebuttal Argument

Video cameras at the nightclub recorded the commission of the crime. During the People's case-in-chief, the videos were shown to the jury and received in evidence. The videos were again shown to the jury during the prosecutor's rebuttal argument. The prosecutor argued that the videos proved that appellant, not Deuce, had doused Busby with gasoline and had set her on fire.

Appellant contends that the prosecutor should have shown the videos during his initial closing argument. Appellant maintains that, by waiting until rebuttal to show the videos, the prosecutor denied defense counsel the opportunity to respond to his argument concerning the videos. Appellant claims that defense counsel was ineffective because she failed to timely object to the prosecutor's improper rebuttal and request "an opportunity to respond in surrebuttal."

"When the evidence is concluded, " the parties "may argue the case to the court and jury." (§ 1093, subd. (e).) The prosecutor has the right to open the argument and "the right to close." (Ibid.) "[A] prosecutor is justified in making comments in rebuttal... which are fairly responsive to argument of defense counsel and are based on the record." (People v. Hill (1967) 66 Cal.2d 536, 560.) However, a prosecutor commits misconduct if he "sandbags" the defense by giving a perfunctory initial closing argument followed by a lengthy rebuttal: "Section 1093, subdivision (e)... does not permit the prosecutor to give a perfunctory (three and one-half reporter transcript pages) opening argument designed to preclude effective defense reply, and then give a 'rebuttal' argument - immune from defense reply - 10 times longer (35 reporter transcript pages) than his opening argument. [Citations.]" (People v. Robinson (1995) 31 Cal.App.4th 494, 505.)

The prosecutor here did not commit misconduct. His rebuttal argument concerning the videos was based on the record and was fairly responsive to defense counsel's argument that Deuce, not appellant, had committed the crime. Defense counsel told the jury: "We have a fight. We have my client according to her getting knocked down to the ground. [¶] Deuce is standing very close to both of them. Deuce then douses [Busby] with this gasoline and he sets her on fire."

Moreover, the prosecutor's initial closing argument was not perfunctory. It comprises approximately nine and one-half reporter transcript pages, while rebuttal argument comprises approximately 16 reporter transcript pages. This is a far cry from the situation in People v. Robinson, supra, 31 Cal.App.4th at p. 505, where rebuttal argument was 10 times longer than the prosecutor's initial closing argument of only three and one-half reporter transcript pages. Appellant, therefore, has failed to show that defense counsel was deficient for not objecting to rebuttal argument concerning the videos.

Appellant has also failed to show that defense counsel was deficient for not requesting "an opportunity to respond in surrebuttal." Counsel may have reasonably believed that she should not focus on the videos because they were highly incriminating. The trial court stated, "I think the video aptly... shows Deuce at the very least clearly identified inside and outside by his clothing and by his body type and gender and he's clearly in the background when whoever sets the victim on fire." "When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel's challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation. [Citation.]" (People v. Anderson (2001) 25 Cal.4th 543, 569.)

In any event, appellant has failed to show that counsel's alleged unprofessional errors prejudiced her. Since two witnesses identified appellant as the perpetrator of the crimes, it is not reasonably probable that the result would have been different if defense counsel had objected to rebuttal argument and had requested an opportunity to respond in surrebuttal.

Counsel's Asserted Failure to Request Jury Instruction on Intoxication as to Aggravated Mayhem and Torture

At defense counsel's request, the trial court instructed the jury on voluntary intoxication as to the offenses of which appellant was acquitted: attempted murder and attempted voluntary manslaughter. The court gave CALCRIM No. 625, which provides in relevant part: "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 with an intent to kill, or the defendant acted with deliberation and premeditation. [¶]... [¶] You may not consider evidence of voluntary intoxication for any other purpose."

Appellant contends that defense counsel was ineffective because she failed to request an instruction - CALCRIM No. 3426 - informing the jury that it could also consider appellant's voluntary intoxication in deciding whether appellant had the requisite specific intent for aggravated mayhem and torture. "Aggravated mayhem... requires proof the defendant specifically intended to cause the maiming injury, i.e., the permanent disability or disfigurement. [Citation.]" (People v. Quintero (2006) 135 Cal.App.4th 1152, 1162.) Torture requires "the specific intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose. [Citation.]" (People v. Massie (2006) 142 Cal.App.4th 365, 370-371.)

"A defendant is entitled to [an instruction on voluntary intoxication] only when there is substantial evidence of the defendant's voluntary intoxication and the intoxication affected the defendant's 'actual formation of specific intent.' [Citations.]" (People v. Williams (1997) 16 Cal.4th 635, 677, italics added; see also People v. Ivans (1992) 2 Cal.App.4th 1654, 1661 ["an intoxication instruction is not required when the evidence shows that a defendant ingested drugs or was drinking, unless the evidence also shows he became intoxicated to the point he failed to form the requisite intent or attain the requisite mental state"].) Substantial evidence supports a jury instruction "if it is 'sufficient to "deserve consideration by the jury, " that is, evidence that a reasonable jury could find persuasive.' [Citation.]" (People v. Ross (2007) 155 Cal.App.4th 1033, 1049-1050.)

Appellant has not carried her burden of showing that defense counsel was deficient for failing to request CALCRIM No. 3426 as to aggravated mayhem and torture. Assuming for purposes of discussion that there was substantial evidence of appellant's voluntary intoxication, there was no substantial evidence "that voluntary intoxication had [an] effect on [appellant's] ability to formulate intent." (People v. Williams, supra, 16 Cal.4th at pp. 677-678.) Appellant testified that "everything was really blurry" because she "was drunk." But this testimony is insufficient to lead a reasonable jury to find that, because of her intoxication, she failed to form the specific intent to maim Busby or cause her extreme pain and suffering. (See Id., at p. 677 [no substantial evidence to support voluntary intoxication instruction where witness testified "that defendant was 'probably spaced out' on the morning of the killings" and defendant told the "police that around the time of the killings he was 'doped up' and 'smokin' pretty tough then' "]; People v. Simpson (1987) 192 Cal.App.3d 1360, 1369-1370 [no substantial evidence where defendant "had been drinking for several hours" and defendant's "own testimony was that he was only woozy and not completely 'blacked out' "].) Appellant's detailed account of the incident suggests that her intoxication had not appreciably affected her mental state. (See People v. Ramirez (1990) 50 Cal.3d 1158, 1181 [no substantial evidence where "[d]efendant purported to give a detailed account of all of the events of the night in question"]; People v. Simpson, supra, 192 Cal.App.3d at p. 1370 [no substantial evidence where defendant's testimony "demonstrated that he recalled clearly the evening [when the crime was committed], including the sequence of punches and kicks"].) A claim of ineffective counsel cannot rest on counsel's failure to request a jury instruction to which her client was not entitled.

Even if appellant had been entitled to an instruction on voluntary intoxication, she would not have been prejudiced by defense counsel's failure to request CALCRIM No. 3426 as to aggravated mayhem and torture. Appellant's defense was that Deuce had committed these crimes, not that she had failed to form the requisite specific intent because of voluntary intoxication. During opening statement, defense counsel made no mention of appellant's intoxication. During closing argument, defense counsel said that the jury could consider "the fact that [appellant] was drunk" in explaining her "initial reaction" to Busby's insult when Deuce introduced her to Busby four hours before the commission of the crimes. Counsel never related appellant's intoxication to the formation of specific intent. Thus, it is not reasonably probable that the result would have been different if the trial court had given CALCRIM No. 3426 as to aggravated mayhem and torture.

Appellant argues that the failure to give CALCRIM No. 3426 was prejudicial because she was acquitted of attempted murder and attempted voluntary manslaughter, offenses for which a voluntary intoxication instruction had been given. But it is not reasonable to infer that the acquittals were due to the jury's finding that appellant was so intoxicated that she failed to form the specific intent required for these offenses. The acquittals must have been due to the jury's conclusion that, although the People had proved beyond a reasonable doubt that appellant intended to maim Busby and cause her severe pain and suffering, they had not proved that appellant also intended to kill Busby.

Disposition

The judgment is affirmed.

We concur: GILBERT, P.J., PERREN, J.


Summaries of

People v. Theriault-Odom

California Court of Appeals, Second District, Sixth Division
Feb 17, 2011
No. B223026 (Cal. Ct. App. Feb. 17, 2011)
Case details for

People v. Theriault-Odom

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. RAINNE THERIAULT-ODOM, Defendant…

Court:California Court of Appeals, Second District, Sixth Division

Date published: Feb 17, 2011

Citations

No. B223026 (Cal. Ct. App. Feb. 17, 2011)