Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Ct. No. TA081639, Kelvin D. Filer, Judge. Affirmed in part; reversed in part with directions.
Alan Stern, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Sarah J. Farhat and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
BIGELOW, J.
David Vasquez was charged with aggravated mayhem (count 1), and assault by means of force likely to produce great bodily injury (GBI) with an ancillary allegation that he personally inflicted GBI (count 2). In 2006, a jury convicted Vasquez of assault by means of force likely to produce GBI with a finding that he inflicted GBI (count 2), but could not reach a verdict on the mayhem charge (count1), and the trial court declared a mistrial. In 2007, a second jury convicted Vasquez of aggravated mayhem (count 1). The trial court thereafter sentenced Vasquez to a total term of 19 years to life, following which he filed the appeal that is before us today. Vasquez sole argument on appeal is that his aggravated mayhem conviction (count 1) must be reversed because his trial counsel at his second trial was ineffective. We agree.
FACTS
Our statement of facts is based upon the evidence presented at Vasquez’s second trial at which he was convicted of aggravated mayhem (count 1). Where necessary to set a context for Vasquez’s arguments on appeal, we note the differences in the evidence that was presented at his first and second trial.
Some time after 2:00 a.m., on October 4, 2005, Patricia Roberts (the victim) and her friend, Gail Henderson, decided to get some beer “from the bootleg.” As they were walking on 92nd Street toward Figueroa Street, they saw Vasquez sitting in front of an apartment building. Roberts walked up to Vasquez, and may have asked him whether he had any drugs (she denied doing so), and Vasquez replied, “What you going to give me?” Vasquez then grabbed Roberts’s buttocks, and, over Roberts’s objections (“You can’t be touching me like that”) also grabbed her breasts.
At that point, Roberts grabbed Vasquez’s penis, and Vasquez reacted by punching Roberts in the forehead. Roberts stumbled backward off the sidewalk, and into the street. Vasquez followed Roberts, and Roberts slapped him and started to run. Vasquez chased Roberts, caught her, and knocked her to the ground. Roberts retreated toward Henderson, and they began walking down Figueroa Street, away from Vasquez.
Shortly thereafter, Roberts said that she was going home, and she and Henderson started walking back toward the area where they had encountered Vasquez. As Roberts and Henderson neared 92nd Street again, Vasquez crossed the street, accosted Roberts, and then repeatedly hit, kicked, and stomped on her for more than 10 minutes. The attack ended when a police car happened by the area.
Los Angeles Police Department Sergeant Lyle Young was driving northbound on Figueroa Street, approaching 92nd Street, when he saw Henderson and another person (an unidentified Black male) crouched over Roberts. Sergeant Young stopped his patrol car, and observed that Roberts “appeared to have a broken nose,” and had “lacerations over her eyebrows,” and was “bleeding profusely.” Roberts’s upper body was “covered” with blood, and “[t]here was [also] blood on the ground . . . around her.”
Paramedics transported Roberts to a local hospital where, a day after the attack, a surgeon, Joseph McQuirter, M.D., observed that she had a “footprint impression” on her face. The next day, Dr. McQuirter operated on Roberts for approximately seven hours to repair multiple facial fractures. The surgery was “very extensive,” and consisted of using plates and screws to fasten the broken bones in Robert’s face to strategic structures in her face to restore its form. In Dr. McQuirter’s experience, Roberts’s injuries were consistent with the type of injuries inflicted by “punching and stomping on the face repeatedly with great force,” and not with injuries suffered from falling from a standing position onto a sidewalk.
The First Trial
In January 2006, the People filed an information charging Vasquez with aggravated mayhem (count 1), and assault by means likely to produce GBI with an allegation that he personally inflicted GBI (count 2). The information further alleged that Vasquez had a prior robbery conviction, which qualified as a strike, as a prior serious felony conviction, and as a prior conviction with a prison term.
At a jury trial in August 2006, the People presented evidence establishing the facts summarized above. When Vasquez’s defense counsel (Alternate Public Defender Bobby Black) cross-examined Roberts, she testified that she thought Vasquez had been “high” at the time he attacked her, that his eyes had been “bloodshot red,” and that “[h]e was just like a zombie or something.” When defense counsel asked Roberts whether she believed that Vasquez had been “intoxicated” at the time of the attack, Roberts answered “yes.”
During his defense case, Vasquez called his father, brother, and sister, all of whom testified that they had observed scratches on Vasquez’s face and chest on the day Roberts had been attacked, or on the following days. During the prosecutor’s cross-examination of Vasquez’s father, he testified that Vasquez had returned home at about midnight, and that Vasquez had been “drunk” when he returned home.
According to Vasquez’s father, Vasquez had come home “one night” around midnight with a torn shirt and scratches on his face.
In argument to the jury, Vasquez’s counsel posited several grounds for reasonable doubt: the prosecution’s primary witnesses, Roberts and Henderson, were not credible; Roberts and Vasquez may have been involved in mutual combat and Vasquez may have been justified in using self-defense; and Roberts’s injuries could have been caused by a fall while she was running away. In addressing the aggravated mayhem count directly, Vasquez’s counsel reminded the jury of the evidence showing that Vasquez had been intoxicated, and argued that his intoxication could have prevented him from forming the specific intent to maim Roberts. The trial court instructed the jury in accord with all of Vasquez’s proffered arguments, including, over the prosecutor’s objection, an instruction that the jury could consider the evidence of voluntary intoxication when determining whether he had the specific intent required for the offense of aggravated mayhem. (See Judicial Council of California Criminal Jury Instructions (2006-2007) CALCRIM No. 3426.)
The cause was submitted to the jury at 3:06 p.m., on August 22, 2006. On August 23, 2006, at 2:28 p.m., the jury advised the trial court that it had reached a verdict on the assault charge (count 2), but was deadlocked on the aggravated mayhem charge (count 1). At 3:15 p.m., the court conferred with the jury, and found that further deliberations might result in a verdict on mayhem (count 1), but, at 3:32 p.m., the jury advised the trial court that it remained deadlocked. Shortly thereafter, the jury returned a verdict finding Vasquez guilty of assault by means likely to produce GBI with a finding that he personally inflicted GBI (count 2), and the trial court declared a mistrial on the aggravated mayhem charge (count 1).
The trial court’s minute order shows that the jury deadlocked on the mayhem charge (count 1) by a margin of 10 votes for guilty and two votes for not guilty.
The Second Trial
Before the aggravated mayhem charge (count 1) was retried, Vasquez retained private counsel (Stephen A. Rodriguez).
The law firm of Rodriguez & Rodriguez is comprised of Stephen Rodriguez, Sr., and Stephen Rodriguez, Jr. The record suggests that Mr. Rodriguez, Sr., acted as trial counsel.
At a second trial in January 2007, the People again presented evidence showing the facts summarized above. On cross-examination, Vasquez’s defense counsel elicited testimony from Roberts to establish that she had consumed drugs and alcohol on the day that she was attacked, and to show that her prior statements about the attack contained information which was inconsistent with her trial testimony, but no questions were asked regarding whether Vasquez had exhibited signs of intoxication and/or acted as though he was intoxicated.
The only defense witness at the second trial was Vasquez’s father. He again testified again that he had observed Vasquez return home at about midnight with scratches on his face. No questions were asked, either on direct or cross-examination, regarding whether Vasquez had been intoxicated.
At a jury instruction conference prior to the morning session on January 22, 2007, the following exchange occurred:
“[THE PROSECUTOR]: There’s another issue, voluntarily intoxication. [Sic.] I don’t recall during this trial that there [was] any evidence that the defendant was under the influence. [¶] . . . [¶] . . . So I would ask that voluntary intoxication be withdrawn. In know in the last trial there was, but there wasn’t in this trial.
“THE COURT: I think you’re right.
“[DEFENSE COUNSEL]: I think I remember Ms. Gail Henderson testifying as to the fact that [Vasquez] was intoxicated . . . .
“[THE PROSECUTOR]: Actually, I recall specifically. And Ms. Henderson has been consistent with this . . ., and I asked if [Vasquez] appeared to be under the influence of anything, and she said no.
“THE COURT: I don’t see anything about him being under the influence, making any reference to that at all.
“[DEFENSE COUNSEL]: Actually, maybe it was Roberts who testified that he was under the influence.
“THE COURT: Where is that? I don’t see anything at all. So I don’t think it applies.”
In his ensuing argument to the jury, and in the absence of a voluntary intoxication instruction, Vasquez’s counsel primarily challenged the credibility the prosecution’s eyewitnesses, Roberts and Henderson, regarding their testimony that Vasquez had beaten Roberts in an extended attack. As counsel put it, “Here’s our problem. . . . We’ve got two crack heads who [were] intoxicated [and] the prosecution is saying, ‘Well, that doesn’t matter.’ [¶] It does matter because it goes to their perception, it goes to their memory, and it goes to their judgment.”
In complimenting his credibility theme, Vasquez’s counsel highlighted the evidence showing that Vasquez had arrived home at about midnight with scratches on his face, and the evidence showing that the police had arrived upon the injured Roberts at about 3:00 a.m., and, based on these facts, offered the observation that, “during this three-hour period of time, there [was] a hell of a lot that [could] go [on] within South Central with people who [were] intoxicated and who [were] smoking crack cocaine.” Defense counsel also noted Roberts’s testimony that, during the incident with Vasquez, she had “grabbed his balls,” and conceded there had been a “fight” of some kind between Roberts and Vasquez, but then urged the jury, “[D]o not believe everything. . . . [D]o not believe that [Mr. Vasquez] did the things that Ms. Roberts said that he did, and that he did them in the way that Ms. Roberts said he did them.”
When Vasquez’s counsel suggested that Roberts may have gotten “into a fight with her pimp,” the trial court sustained the prosecutor’s objection.
The jury began deliberating at 2:14 p.m. on January 22, 2007. At 11:24 a.m., on January 23, 2007, the jury advised the trial court that it had reached a verdict, and, shortly thereafter, the jury returned its verdict finding Vasquez guilty of aggravated mayhem (count 2).
Vasquez thereafter admitted that he had been convicted of a prior strike offense and a prior serious felony, and the trial court sentenced Vasquez to state prison for a total term of 19 years to life as follows: seven years to life for aggravated mayhem, doubled to 14 years for his prior strike conviction, plus five years for his prior serious felony conviction. The trial court imposed and stayed sentence on Vasquez’s assault conviction (count 2) under Penal Code section 654.
DISCUSSION
Vasquez’s sole contention on appeal is that his aggravated mayhem conviction must be reversed because (1) his trial counsel at his second trial failed to present or otherwise develop evidence showing that he had been intoxicated when he attacked Roberts, and because (2) his trial counsel’s error denied him a voluntary intoxication instruction (and argument) which would have benefitted his defense. We agree.
A.
To prevail on a claim of ineffective assistance of counsel on appeal, a defendant must convince the reviewing court that trial counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms, and that he or she was prejudiced by trial counsel’s substandard performance. (See, generally, Strickland v. Washington (1984) 466 U.S. 668, 687-694; People v. Lucas (1995) 12 Cal.4th 415, 436.)
In assessing trial counsel’s performance on appeal, a reviewing court must avoid the “distorting effects of hindsight,” which is accomplished by presuming that counsel acted within a wide range of reasonable assistance and by according deference to his or her tactical decisions. (People v. Mendoza (2000) 24 Cal.4th 130, 158; see also People v. Frye (1998) 18 Cal.4th 894, 979.) Notwithstanding that a defendant’s burden to show substandard performance is “difficult to carry on direct appeal,” a reviewing court may reverse a conviction on appeal where the record discloses that trial counsel had “no rational tactical purpose” for his or her performance at trial. (People v. Lucas, supra, 12 Cal.4th at p. 437.)
In assessing prejudice, a reviewing court’s task is to determine whether there is a reasonable probability that the result of defendant’s trial would have been different in the absence of trial counsel’s substandard performance. (Strickland v. Washington, supra, 466 U.S. at p. 694.)
B.
Vasquez contends the record establishes that his defense counsel’s performance at his second trial “fell below an objective standard of reasonableness.” We agree. In our view, a fair reading of the record on appeal affirmatively discloses that Vasquez’s trial counsel had no rational tactical purpose for not presenting or developing evidence which showed that Vasquez had been intoxicated at the time he attacked Roberts. This exculpatory evidence mainly came from the same person who pointed the finger at him – the victim – which makes it especially probative. We find this particularly true where the critical component of the crime of mayhem is a specific intent to maim, and defense counsel himself recognized as much, and requested an instruction on intoxication, which would have supported a challenge to the specific intent element.
The Attorney General contends Vasquez’s argument may be reduced to the simple but incorrect proposition that his trial counsel at his second trial was ineffective because he did not present the same defense, which Vasquez believes resulted in a hung jury at this first trial. We agree with the Attorney General that a defendant may not complain that his or her counsel decided to present one rational defense rather than another rational defense. Vasquez’s argument, however, is more than a simple objection that his defense counsel chose the “wrong” defense. On the contrary, Vasquez contends his trial counsel failed to assure that there was evidence to support a defense, which counsel intended to put before the jury, particularly where that defense would have challenged a fundamental element of the charged offense.
We agree with Vasquez that his trial counsel’s failure to present or develop evidence of intoxication cannot be considered a tactical decision. As Vasquez notes on appeal, there is no room to indulge a presumption that his trial counsel reasonably elected to forego an intoxication defense because the record affirmatively discloses the opposite. In short, the record shows that Vasquez’s trial counsel failed to present or develop evidentiary support for a voluntary intoxication instruction which counsel, himself, understood was beneficial to Vasquez’s defense, and which counsel, himself, requested.
C.
The question, therefore, is whether Vasquez was prejudiced by his trial counsel’s failure to present evidence in support of critical defense. In other words, we must now determine whether there is a reasonable probability that Vasquez would not have been convicted of mayhem had his trial counsel presented or developed evidence in support of a voluntary intoxication defense at his second trial. Framed another way, we must determine whether there is a reasonable probability that Vasquez would have persuaded at least one juror at his second trial that he had not intended to disable or disfigure Roberts permanently when he attacked her. (Pen. Code, § 205; see also CALCRIM No. 800.) We agree with Vasquez such a probability exists.
The evidence in this case (summarized from both the first and second trials), without evidence of intoxication or other precipitating factor, tells a story of a senseless and brutal physical attack resulting in crippling injuries. Based on the nature of the attack, a reasonable trier of fact could infer that Vasquez had a specific intent to maim, and that is exactly what happened at Vasquez’s second trial. But the same facts could also tend to suggest a frenzied and unthinking attack, or, as Roberts testified at the first trial, an attack by someone who was acting like a “zombie.” Given this context, we must accept Vasquez’s argument that there exists a reasonable probability that jurors would have adopted the latter inference had they been exposed to evidence of his intoxication.
We disagree with the Attorney General that Vasquez’s argument may be reduced the simple and incorrect proposition that the deadlocked jury at his first trial, standing alone, establishes a reasonable probability that the result of his second trial would have been similar. Vasquez’s argument is more than a simple invitation to “look at his first trial.” Vasquez has presented us with an explanation of the evidence which was presented at this second trial, and a well-reasoned discussion establishing the probability of a different result had additional evidence of intoxication been presented to his second jury. We are satisfied that Vasquez was prejudiced when the issue of intoxication was withheld from the jury’s consideration at his second trial.
DISPOSITION
Vasquez’s conviction for assault by means of force likely to produce GBI with a finding that he personally inflicted GBI (count 2) is affirmed. Vasquez’s conviction for aggravated mayhem (count 1) is reversed. The cause is remanded to the trial court with directions to vacate Vasquez’s sentence, and to conduct such further proceedings consistent with this opinion.
We concur: FLIER, Acting P. J O’NEILL, J.
Judge of the Ventura County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.