Opinion
B238228
04-02-2014
THE PEOPLE, Plaintiff and Respondent, v. VICTOR FIDENCIO VELA, Defendant and Appellant.
Richard C. Neuhoff, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County
Super. Ct. No. SA067007)
APPEAL from a judgment of the Superior Court of Los Angeles County, Antonio Barreto, Jr., Judge. Affirmed.
Richard C. Neuhoff, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant, Victor Fidencio Vela, appeals his conviction for first degree murder and assault by means likely to produce great bodily injury, with deadly weapon use, prior serious felony conviction and prior prison term enhancements (Pen. Code, §§ 187, 245, subd. (a)(1), 12022, subd. (b)(1), 667, subds. (a)-(i), 667.5). He was sentenced to state prison for a term of 111 years to life.
All further references are to the Penal Code unless otherwise specified.
The judgment is affirmed.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established the following.
On February 28, 2008, Duwayne Bennett and co-workers Ryan Comstock and Shaun Lucy went for drinks after work at Brennan's Pub in Marina Del Rey. Defendant Vela and a friend arrived at Brennan's on skateboards at about 1:00 a.m. When one of the bar's bouncers told Vela skateboards were not allowed inside because they could be used as weapons, Vela said: "I have better weapons on me than that."
Vela was allowed inside without his skateboard just to look around. Comstock, who happened to be walking out of the bar at that moment, bumped into him. Vela got mad and told Comstock to apologize, which Comstock did but only "begrudgingly . . . like he really didn't have to say it." Rasaan Bowman, one of the bouncers, intervened. He told Vela that Comstock "had been inside drinking, and he probably didn't know what he was doing and . . . just to let it go."
Twenty or thirty minutes later, Comstock, Lucy and Bennett left the bar and went across the street to the International House of Pancakes (IHOP). As Comstock walked past a pole, he looked in Vela's direction and slapped the pole. Vela "wasn't happy about [this]" and his friend said, "Did you see that? We shouldn't let him get away with that." Vela told Bowman "he felt disrespected because he had to bring it to this person's attention to say excuse me and everything, and he felt disrespected in that regard." Bowman tried to calm Vela down, but it seemed Vela was "stewing it over in his head a little bit, thinking whether or not it would be a good idea to do anything about it." Eventually, Vela and his friend walked away.
While Comstock, Lucy and Bennett were in the IHOP parking lot, Lucy heard someone say, "There he is over there." Comstock saw Vela's friend pointing at him and saying, "Yeah, that's the guy." Vela and his friend approached Lucy and Bennett. Comstock was standing 10 or 15 feet away. Vela seemed agitated and angry. He told Lucy and Bennett he was upset about what happened at Brennan's. Lucy apologized to him and Bennett said they didn't want any trouble. Lucy and Bennett then talked to Vela about motorcycles in an attempt to calm him down. By this time Comstock was standing 20 to 25 feet away and was not involved in the conversation.
After talking for about 10 minutes, Lucy told Vela he was hungry and that he and his friends were going into the IHOP to eat. Lucy testified Vela "got angry [when Bennett] tried to clear the air for the last time before we went in to eat," and Vela "flipped out." From his pants, Vela pulled out a chain with a lock on the end of it. He moved toward Bennett and began hitting him with the chain, saying "Are you trying to be a hero?" Vela swung the chain like a whip, hitting Bennett in the back and in the head. Bennett said, "Stop. You don't want to do this. What are you doing?" Bennett was retreating and trying to defend himself, but Vela continued to hit him with the chain and lock. It appeared to Lucy and Comstock that Vela was controlled and focused as he swung the chain.
At some point, Bennett grabbed the chain and Vela got close to him. Lucy saw Vela make stabbing motions at Bennett with his left hand while holding the chain with his right hand. After the chain had fallen to the ground, Comstock saw Vela punching Bennett with a motion indicating Vela had something in his hand. Bowman, who was watching from across the street, saw Vela hitting Bennett. Another bystander, Jay Felker, saw Vela holding Bennett's shirt by the collar with one hand while he was "slugging [Bennett] in an upward motion" with the other hand. Comstock stepped in and hit Vela in the back with a skateboard. He testified Vela "backed up, grabbed the chain off the ground and ran off." Lucy testified he believed Comstock hit Vela either after or while Vela was stabbing Bennett.
Oswaldo Benedid, who had been inside the IHOP, ran outside to stop Vela from hitting Bennett with the chain. Benedid pushed Vela off Bennett and told him to leave. Vela hit Benedid with the chain and ran off. Bennett was covered in blood. He called out Lucy's name and then collapsed.
A police officer apprehended Vela about 1:45 a.m. By that time, Vela had neither a chain nor a knife in his possession. A knife, with Bennett's blood on it, was later recovered from a planter box in front of a nearby shop. A witness had seen someone throw an object into the planter box.
The autopsy revealed Bennett died from a "sharp force injury to the chest" consistent with a knife wound. A portion of Bennett's heart had been pierced. He also sustained two non-fatal sharp force injuries to his torso and one to the back of his head.
CONTENTIONS
1. The trial court erred by failing to hold a competency hearing.
2. There was insufficient evidence to sustain a first degree murder conviction.
3. Defense counsel was ineffective for not objecting to improper lay opinion testimony.
DISCUSSION
1. Trial court did not err by failing to hold a competency hearing.
Vela contends his convictions must be reversed because the trial court failed to hold a hearing to determine if he was competent to stand trial. This claim is meritless.
a. Legal principles.
"The due process clause of the federal Constitution's Fourteenth Amendment prohibits trying a criminal defendant who is mentally incompetent. [Citations.] A defendant is deemed competent to stand trial only if he ' "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" ' and ' "has a rational as well as factual understanding of the proceedings against him." ' [Citation.] [¶] When a trial court is presented with evidence that raises a reasonable doubt about a defendant's mental competence to stand trial, federal due process principles require that trial proceedings be suspended and a hearing be held to determine the defendant's competence. [Citations.] Only upon a determination that the defendant is mentally competent may the matter proceed to trial. [Citation.] [¶] California law reflects those constitutional requirements. Section 1368, in subdivision (a), requires a trial court to suspend criminal proceedings at any time 'prior to judgment' if the court reasonably doubts 'the mental competence of the defendant.' A defendant can create reasonable doubt through substantial evidence of mental incompetence, or the trial court can raise the issue on its own. . . ." (People v. Ary (2011) 51 Cal.4th 510, 517.)
"Under California law, a person is incompetent to stand trial 'if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.' (§ 1367, subd. (a).) A defendant is presumed to be mentally competent to stand trial. (§ 1369, subd. f).) [¶] . . . [S]ection 1368 provides that if the trial court has any doubt as to the defendant's competence to stand trial, it must state that doubt in the record and inquire of counsel whether, in his or her opinion, the defendant is mentally competent. (§ 1368, subd. (a).) The trial court is authorized to conduct a competency hearing on its own motion and at the request of counsel. (§ 1368, subd. (b).) [¶] . . .'[O]nce the accused has come forward with substantial evidence of incompetence to stand trial, due process requires that a full competence hearing be held as a matter of right. [Citation.] In that event, the trial judge has no discretion to exercise. [Citation.] As we also have noted, substantial evidence of incompetence is sufficient to require a full competence hearing even if the evidence is in conflict. [Citation.] We have concluded that where the substantial evidence test is satisfied and a full competence hearing is required but the trial court fails to hold one, the judgment must be reversed. [Citation.]' " (People v. Young (2005) 34 Cal.4th 1149, 1216-1217, fn. omitted.)
"In this context, substantial evidence means evidence that raises a reasonable doubt about the defendant's ability to stand trial. [Citation.] The substantiality of the evidence is determined when the competence issue arises at any point in the proceedings. [Citation.] The court's decision whether to grant a competency hearing is reviewed under an abuse of discretion standard. [Citations.] [¶] Substantial evidence of incompetence may arise from separate sources, including the defendant's own behavior. For example, if a psychiatrist or psychologist 'who has had sufficient opportunity to examine the accused, states under oath with particularity that in his professional opinion the accused is, because of mental illness, incapable of understanding the purpose or nature of the criminal proceedings being taken against him or is incapable of assisting in his defense or cooperating with counsel, the substantial-evidence test is satisfied.'. . . [A] defendant must exhibit more than bizarre, paranoid behavior, strange words, or a preexisting psychiatric condition that has little bearing on the question of whether the defendant can assist his defense counsel." (People v. Ramos (2004) 34 Cal.4th 494, 507-508.)
"[A] trial court is not required to order a competence hearing based merely upon counsel's perception that his or her client may be incompetent. [Citation.]" (People v. Welch (1999) 20 Cal.4th 701, 739, fn. 7.)
b. Background.
During a pretrial hearing, defense counsel informed the trial court he had received a report from Dr. Abraham Argun, a psychologist, opining that Vela was incompetent to stand trial. The following colloquy occurred:
"The Court: Now, that's not a report that I've seen. Do you happen to have it with you?
"[Defense counsel]: Well, this was a confidential report, and . . . I have part of the report. The other part . . . I don't want to release yet because it goes into other issues regarding sanity. But I can show the court the part on competence.
"The Court: That's the only part I want to see.
"[Defense counsel]: That's fine. May I approach, Your Honor?
"The Court: Sure. . . . [¶] . . . [¶] . . . Well, this is clearly what that pertinent part of the report says. And I agree with [defense counsel]. That comment cannot be ignored. Interestingly, Dr. Argun was not appointed for the purpose of making a competency evaluation, but he's taken it upon himself to do that which was within his professional discretion, I suppose. [¶] So now what we have to do is we have to have an appointment for the purpose of either confirming or excluding that very finding, so hang on a second."
The trial court restated its concern Argun had provided an unsolicited opinion, and also said Argun's desire to conduct an MRI examination in order to test Vela's competence seemed to contradict the notion he had already found Vela incompetent. The trial court declined to declare a doubt about Vela's competence based on Argun's findings.
At the next hearing, the trial court appointed two mental health professionals to examine Vela. Dr. Rebecca Crandall subsequently reported Vela had not cooperated at their interview, and she concluded his non-cooperation had been voluntary rather than the product of any mental illness. Dr. Marc Cohen opined Vela's "presentation was consistent with an individual attempting to feign memory impairment and is not consistent with any known mental illness." Cohen concluded Vela was competent to stand trial. After considering these two medical reports, the trial court again declined to declare a doubt as to Vela's competency.
c. Discussion.
Vela contends it was improper for the trial court to order additional reports by the other doctors before reaching its own decision as to his mental status because "this was precisely the course of action that was disapproved in [People v. Pennington (1967) 66 Cal.2d 508]." We cannot agree.
Vela asserts "Pennington establishes that the opinion of one psychologist is by itself, substantial evidence which compel[s] the court to order a section 1368 hearing." He cites People v. Bute (1969) 275 Cal.App.2d 143, for the proposition that "a medical expert's opinion amounts to substantial evidence even it if is expressed in a written report rather than via formal testimony," and argues this reading is confirmed by People v. Zatko (1978) 80 Cal.App.3d 534, and People v. Merkouris (1956) 46 Cal.2d 540. Vela is wrong.
It is unclear whether the evidence in Bute came only from unsworn reports because the issue was not litigated. At issue in Zatko was the testimony of a medical doctor, and in Merkouris there was "an affidavit of a qualified psychiatrist in which it was averred . . . that the defendant was medically and legally insane at the time of trial . . . ." (People v. Merkouris, supra, 46 Cal.2d at p. 552, italics added.) Pennington involved "[t]he diagnosis of Mr. Sussman [a psychologist], which he related on the stand while the judge was taking evidence," and evidence from "Dr. Larson . . . a medical doctor and psychiatrist . . . [whose] testimony constituted evidence of present insanity" (People v. Pennington, supra, 66 Cal.2d at pp. 519, 520, italics added.)
Bute states "the court had before it three psychiatric reports," but gives no further description of what form these reports took. (People v. Bute, supra, 275 Cal.App.2d at p. 144.)
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Indeed, even Pennington stated the rule as follows: "If a psychiatrist or qualified psychologist [citation], who has had sufficient opportunity to examine the accused, states under oath with particularity that in his professional opinion the accused is, because of mental illness, incapable of understanding the purpose or nature of the criminal proceedings being taken against him or is incapable of assisting in his defense or cooperating with counsel, the substantial-evidence test is satisfied." (People v. Pennington, supra, 66 Cal.2d at p. 519, italics added.)
Argun's opinion was not given under oath and, therefore, could not by iself raise a reasonable doubt as to Vela's competence to stand trial. Vela has failed to demonstrate the trial court abused its discretion by failing to hold a competency hearing.
2. Sufficient evidence to support first degree murder conviction.
Vela contends there was insufficient evidence to sustain his conviction for first degree murder. This claim is meritless.
a. Legal principles.
"In assessing a claim of insufficiency of evidence, the reviewing court's task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence - that is, evidence that is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.] ' "Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant's guilt beyond a reasonable doubt. ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." ' [Citations.]" ' [Citation.]" (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
" 'An appellate court must accept logical inferences that the [finder of fact] might have drawn from the circumstantial evidence.' [Citation.] 'Before the judgment of the trial court can be set aside for the insufficiency of the evidence, it must clearly appear that on no hypothesis whatever is there sufficient substantial evidence to support the verdict of the [finder of fact].' [Citation.]" (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) As our Supreme Court said in People v. Rodriguez, supra, 20 Cal.4th 1, while reversing an insufficient evidence finding because the reviewing court had rejected contrary, but equally logical, inferences the jury might have drawn: "The [Court of Appeal] majority's reasoning . . . amounted to nothing more than a different weighing of the evidence, one the jury might well have considered and rejected. The Attorney General's inferences from the evidence were no more inherently speculative than the majority's; consequently, the majority erred in substituting its own assessment of the evidence for that of the jury." (Id. at p. 12, italics added.)
The various types of premeditation and deliberation evidence have been described as follows: "The type of evidence which this court has found sufficient to sustain a finding of premeditation and deliberation falls into three basic categories: (1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing - what may be characterized as 'planning' activity; (2) facts about the defendant's prior relationship and/or conduct with the victim from which the jury could reasonably infer a 'motive' to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that the killing was the result of 'a pre-existing reflection' and 'careful thought and weighing of considerations' rather than 'mere unconsidered or rash impulse hastily executed' [Citation.]; (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a 'preconceived design' to take his victim's life in a particular way for a 'reason' which the jury can reasonably infer from facts of type (1) or (2). [¶] Analysis of the cases will show that this court sustains verdicts of first degree murder typically when there is evidence of all three types and otherwise requires at least extremely strong evidence of (1) or evidence of (2) in conjunction with either (1) or (3)." (People v. Anderson (1968) 70 Cal.2d 15, 26-27.)
b. Discussion.
Vela contends the trial evidence failed to satisfy the Anderson test. We disagree.
Vela argues there was no motive evidence because he did not have any interaction whatsoever with Bennett prior to the fight. And while Vela may have had an animus toward Comstock, the fight in the IHOP parking lot had been between him and Bennett, and nothing he did was directed at Comstock. But Bennett was Comstock's companion that night and there was ample evidence Vela transferred his animosity from Comstock, who had been rude to him at the bar, to Bennett. There was substantial evidence Vela had been motivated to kill Bennett because, after being angered by Comstock's rude behavior, Vela took offense when Bennett tried to calm him down.
The manner of the killing also tended to show premeditation and deliberation. " 'The process of premeditation and deliberation does not require any extended period of time. "The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. . . . " [Citations.]' " (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) The evidence showed Vela initially attacked Bennett with the lock and chain, and only after hitting him repeatedly with that weapon did Vela escalate his attack by pulling out a knife and stabbing the unarmed Bennett in the heart. (See People v. Harris (2008) 43 Cal.4th 1269, 1287 [that defendant "stabbed [the victim] without provocation directly in the heart with enough force to penetrate part of a rib and pierce entirely through the heart" constituted premeditation and deliberation evidence]; People v. Silva (2001) 25 Cal.4th 345 369 ["The manner of killing - multiple shotgun wounds inflicted on an unarmed and defenseless victim who posed no threat to defendant - is entirely consistent with a premeditated and deliberate murder."].)
Vela's suggestion he might not have premeditated and deliberated because Bennett triggered a sudden explosion of violence, by saying something terribly disturbing to him, is not supported by the evidence. Vela asserts there was "uncontradicted evidence [his] demeanor changed radically at what he thought Mr. Bennett had said and that he spoke words of disbelief or offense in response to Bennett's words ('What, what, what?' or 'Are you trying to be a hero?')" But the evidence showed Bennett's words were not provocative. Lucy testified Bennett was trying "to clear the air" and Comstock testified Bennett merely asked Vela, "Is everything cool?" Moreover, the evidence showing Vela had earlier bragged to one of the bouncers that he was in possession of dangerous weapons tended to show he was hardly in need of inflammatory provocation to become violent.
Finally, the fact Vela fled the scene after stabbing Bennett and tried to conceal his weapons tended to establish premeditation and deliberation. (See, e.g., People v. Perez (1992) 2 Cal.4th 1117, 1128 ["Additionally, the conduct of defendant after the stabbing . . . would appear to be inconsistent with a state of mind that would have produced a rash, impulsive killing."].)
We conclude there was sufficient evidence to sustain Vela's first degree murder conviction.
3. No ineffective assistance of counsel regarding lay opinion testimony.
Vela contends the trial court was ineffective for failing to object to testimony constituting improper lay opinion evidence. This claim is meritless.
a. Background.
During the prosecutor's examination of Lucy the following colloquy occurred:
"Q. And when [Vela] pulled the chain out, did he appear to be controlled to you?
"A. Yes.
"Q. In other words . . . knew what he was doing?
"A. Yes.
"Q. As he walked and swung the chain at [Bennett], did he appear in control to you?
"A. Yes.
"Q. When he was punching [Bennett], did he appear to be in control to you?
"A. Yes.
"Q. Did he appear to be focused?
"A. Yes."
During her examination of Comstock, the prosecutor asked: "During the time of this fight, did the defendant appear to be in control of what was going on?", to which Comstock answered, "Yes."
b. Legal principles.
A claim of ineffective assistance of counsel based on Strickland v. Washington (1984) 466 U.S. 668 , has two components: " 'First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.' [Citation.] To establish ineffectiveness, a 'defendant must show that counsel's representation fell below an objective standard of reasonableness.' [Citation.] To establish prejudice he '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.' [Citation.]" (Williams v. Taylor (2000) 529 U.S. 362, 390-391.) "[T]he burden of proof that the defendant must meet in order to establish his entitlement to relief on an ineffective-assistance claim is preponderance of the evidence." (People v. Ledesma (1987) 43 Cal.3d 171, 218.)
"[I]f the record sheds no light on why counsel acted or failed to act in the challenged manner, we must reject the claim on appeal unless counsel was asked for an explanation and failed to provide one, or there could be no satisfactory explanation for counsel's performance. [Citation.]" (People v. Castillo (1997) 16 Cal.4th 1009, 1015.) An appellate 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." (Strickland v. Washington, supra, 466 U.S. at p. 697.)
"Where the record shows that the omission or error resulted from an informed tactical choice within the range of reasonable competence, we have held that the conviction should be affirmed." (People v. Bunyard (1988) 45 Cal.3d 1189, 1215; see People v. Hillhouse (2002) 27 Cal.4th 469, 502 ["deciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance"]; People v. Mitcham (1992) 1 Cal.4th 1027, 1059 [decision whether to put on witnesses is "matter[] of trial tactics and strategy which a reviewing court generally may not second-guess"].) "It is not sufficient to allege merely that the attorney's tactics were poor, or that the case might have been handled more effectively. [Citations.] [¶] Rather, the defendant must affirmatively show that the omissions of defense counsel involved a critical issue, and that the omissions cannot be explained on the basis of any knowledgeable choice of tactics." (People v. Floyd (1970) 1 Cal.3d 694, 709, disapproved on other grounds by People v. Wheeler (1978) 22 Cal.3d 258, 287, fn. 36.)
c. Discussion.
Vela contends defense counsel should have objected to this testimony because lay witnesses may not give opinions about another person's state of mind. He argues, "Reasonably competent counsel would have objected to this line of questioning on the grounds of improper lay opinion, lack of personal knowledge, speculation, and irrelevance."
Evidence Code section 800 provides: "If a witness is not testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is: [¶] (a) Rationally based on the perception of the witness; and [¶] (b) Helpful to a clear understanding of his testimony." "A lay witness may express an opinion based on his or her perception, but only where helpful to a clear understanding of the witness's testimony [citation], 'i.e., where the concrete observations on which the opinion is based cannot otherwise be conveyed.' [Citation.]" (People v. Hinton (2006) 37 Cal.4th 839, 889.) " ' "Lay opinion testimony is admissible . . . as 'a matter of practical necessity when the matters . . . observed are too complex or too subtle to enable [the witness] accurately to convey them to court or jury in any other manner.' [Citations.]" ' " (People v. Chapple (2006) 138 Cal.App.4th 540, 547.)
Vela asserts "the prosecutor defined the term 'in control' as meaning whether appellant 'knew what he was doing.' With that definition, the prosecutor was not seeking a description of observed behavior but of what appellant was thinking." He argues: "[W]hether appellant was committing his assault in a calculated way or as an impulsive, rash reaction should have been left to the jury. The testimony apart from the questions about 'in control' and 'knew what he was doing' was detailed enough to provide a basis for the jury to formulate its own assessment as to appellant's state of mind."
But a percipient witness may offer such an opinion when it is based on personal observation and it helps to clarify the witness's testimony. (See, e.g., People v. Chatman (2006) 38 Cal.4th 344, 397 [witness who observed defendant kicking high school custodian was properly allowed to testify that defendant " 'seemed to be enjoying it' "]; People v. Farnam (2002) 28 Cal.4th 107, 153 [correctional officer's testimony that defendant stood " 'in a posture like he was going to start fighting' " was "based on his personal observations that defendant was being 'very defiant' about the court order and physically stood with his hands at his side and left foot forward"].)
Defense counsel was not ineffective for failing to object to this testimony.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN, P. J. We concur:
CROSKEY, J.
ALDRICH, J.