Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Ct. No. KA077536 Tia Fisher, Judge.
Julie Schumer, 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, Senior Assistant Attorney General, Lance E. Winters and Laura J. Hartquist, Deputy Attorneys General, for Plaintiff and Respondent.
Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Appellant Shane Williams appeals from the judgment entered following a jury trial in which he was convicted of attempted murder, assault with a deadly weapon, and corporal injury to child’s parent (Pen. Code, §§ 664; 187; 245, subd. (a)(1); and 273.5, subd. (a)). Appellant raises claims of evidentiary error and ineffective assistance of counsel. We affirm.
Unless otherwise specified, all statutory references pertain to the Penal Code.
FACTS
Appellant and Marza Ortega had known each other for eight years and had a child together. Appellant had lived with Ortega for a time, but moved out in February 2006. Appellant was in a hospital from December 2 through December 5. Ortega visited him every day while he was in the hospital and after his discharge, when he moved into his mother’s house. She knew that appellant had been given medication. He was “okay” when he took the medication, but he often refused it. Appellant’s mother testified the medication was for schizophrenia. Between December 5 and December 27, appellant came to Ortega’s house at all hours of the day and night to check on her and their son. Appellant was not eating or sleeping. He often sat in the dark in her living room while she slept. Sometimes he “couldn’t leave his house.”
All date references pertain to 2006, unless otherwise noted.
On December 27, appellant repeatedly called Ortega and asked her to bring him food because he had not eaten for more than a day. She went to appellant’s house at about 4:30 p.m. Ortega was reluctant to go into the house, but eventually agreed to do so.
Appellant asked Ortega to go to his room to talk. Ortega walked into the room ahead of appellant. Just as she was about to sit on the bed, she felt something heavy on her right shoulder. She turned to face appellant, who was holding a sword over his head. Ortega thought the sword was a fake, so she grabbed at its blade. It sliced her hand, and she ran out of the room screaming for help. Appellant chased her down the hall and outside the house, where he began choking her with his arm. Ortega lost consciousness several times.
Appellant’s brother, Dustin Beaman, came to Ortega’s aid. She was bleeding very badly from a deep laceration on her right shoulder that cut the external jugular vein. Beaman applied pressure to attempt to stop the bleeding, and appellant’s stepfather, Robert Brunston, called the sheriff’s department for help. Appellant repeatedly told Ortega that he loved her and paced around. He asked Beaman to put Ortega in the trunk, and said he was going to wait there for the police to “come get him.” Beaman told appellant to leave. When approaching sirens were audible, appellant jumped in his truck and drove away.
California Highway Patrol Officer Cliff Lester responded to a call regarding an accident on the 10 Freeway and saw appellant walking down an off ramp. Lester told appellant to stop. Appellant replied that he had a gun and wanted Lester to shoot him. After Lester aimed his gun at appellant, appellant held his left hand to mimic a gun and walked away. Lester sprayed appellant with pepper spray and, with the assistance of other officers, wrestled appellant to the ground. Because Lester saw a great deal of blood on appellant’s clothing, arms, and hands, he asked appellant if he was hurt. Appellant did not reply, so Lester asked him where all the blood came from. After a delay of about 30 seconds, appellant replied that he had stabbed his girlfriend. While sheriff’s deputies were transporting appellant, he spontaneously said, “I really fucked up.” One of the deputies shrugged. A few minutes later, appellant asked the deputies whether the victim was going to be okay and if she was going to live.
Appellant pled not guilty and not guilty by reason of insanity. In bifurcated proceedings, a jury convicted appellant of attempted murder, assault with a deadly weapon, and corporal injury to child’s parent and found that appellant personally used a deadly and dangerous weapon in the commission of the attempted murder and corporal injury, and that, in the commission of each crime, he personally inflicted great bodily injury on Ortega in circumstances involving domestic violence.
Appellant waived his right to a jury trial regarding his sanity and three prior prison term allegations. Appellant’s mother testified at the court trial that at some unspecified time prior to December 2, she took him to a hospital emergency room because he attempted suicide, but he refused to stay there, so they left. On December 2, she took him to a mental hospital because he was agitated and delusional. He was afraid that his family was going to be killed. His mother thought the hospitalization did not help appellant because he was “acting … schizophrenic” when he was released. He was prescribed medicine, but “was not taking it like he was supposed to.” She thought appellant seemed depressed on December 24. Also, he thought Ortega and her employer were part of the group that he thought was out to get him and his family. Appellant’s mother did not see him between December 24 and December 27. She spoke to him on the telephone on December 27, however, and he expressed fear of Ortega.
Beaman’s girlfriend, Rhiannon Flores, testified that when she saw appellant outside the house after he attacked Ortega, he had a blank look on his face.
Appointed defense psychiatrist Dr. Sanjay Sahgal interviewed appellant in May 2007 and reviewed records from two hospitals to which appellant was admitted on December 2nd and 3rd. On December 2 he was found to be a danger to himself because he was delusional and had suicidal ideations. He asked his mother to get a gun and “kill your family.” Sahgal testified that doctors at each of the hospitals rated appellant as “low functioning.” At one of the hospitals, appellant’s diagnosis was psychosis not otherwise specified, which meant he had a psychotic disorder with impairment, i.e., he did not have a normal connection to the accepted reality of the community. This diagnosis was consistent with information in the records that appellant was suffering from delusions that people intended to kill him. At the other hospital, his diagnosis was major depressive disorder with psychosis. Some individuals with psychotic disorders can distinguish between right and wrong, and others cannot. Appellant was not schizophrenic, and neither hospital reached such a diagnosis. Flight from the scene tended to indicate an awareness of at least the legal wrongfulness of the preceding assault, even if someone else encouraged the flight. Appellant was prescribed a variety of drugs for anxiety, agitation, depression, insomnia, and psychotic episodes. It was possible appellant’s condition would worsen if he stopped taking the medications. Appellant did not tell Sahgal that he had stopped taking any of his medications. He did not tell Sahgal that he feared Ortega. He told Sahgal that he did not remember the attack itself, but remembered events prior to it and his flight afterwards. Sahgal did not believe appellant because actual episodes of such “circumscribed amnesia” are exceedingly rare, while false claims of amnesia by people who do not want to provide information are common. Although Sahgal believed appellant has a mental disorder, it did not affect appellant’s understanding of the quality and nature of his actions, and Sahgal believed appellant understood the legal and moral wrongfulness of his actions, as shown by his flight and statements to the police officers. In addition, no facts indicated that appellant did not understand the wrongfulness of his action. For example, he made no bizarre statements during the attack and provided no bizarre explanation or description of his conduct. Therefore, Sahgal opined that appellant was sane at the time of the offense.
The parties stipulated that the court could consider evidence admitted during the guilt phase trial.
The trial court found that appellant was sane at the time he committed the offenses and that the prior prison term allegations were true. The court sentenced appellant to 18 years in prison, consisting of the upper term of 9 years for attempted murder, plus 5 years under section 12022.7, subdivision (e), plus 3 years under section 667.5, subdivision (b), and 1 year under section 12022, subdivision (b)(1). The court imposed and stayed the sentences on the remaining counts pursuant to section 654.
DISCUSSION
1. Admission of evidence of restraining order and trial counsel’s failure to object
On cross-examination of Ortega, defense counsel asked whether Ortega lived with appellant any time during the year 2006. Ortega responded that appellant lived with her, but moved out in February. Counsel asked whether that was by mutual agreement. Ortega replied, “Yeah. Because I got a restraining order against him.” Counsel did not object or ask the court to strike Ortega’s statement regarding a restraining order.
Appellant now contends his conviction should be reversed due to the introduction of this testimony. He argues the statement clearly implied that he had committed a prior act of domestic violence against Ortega.
Appellant forfeited this issue by failing to object in the trial court. (People v. Williams (1997) 16 Cal.4th 153, 208.)
Appellant alternatively contends that defense counsel rendered ineffective assistance by failing to object to Ortega’s testimony.
A claim that counsel was ineffective requires a showing, by a preponderance of the evidence, of objectively unreasonable performance by counsel and a reasonable probability that, but for counsel’s errors, appellant would have obtained a more favorable result. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) “ ‘A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” ’ ” (In re Jones (1996) 13 Cal.4th 552, 561, quoting Strickland v. Washington (1984) 466 U.S. 668, 689.)
The decision to object or not to the admission of evidence is inherently tactical, and counsel’s failure to object will seldom establish ineffective assistance. (People v. Williams, supra, 16 Cal.4th at p. 215.) In this case, counsel may have believed that an objection would have drawn additional and unwelcome attention to Ortega’s statement, and that the best strategy was to let the statement pass and move on. Alternatively, or in addition, counsel may have thought that Ortega’s revelation supported his goal of diminishing Ortega’s credibility. Counsel elicited testimony from Ortega that she had never previously mentioned that appellant choked her or that he told Beaman to put her in the trunk. Ortega explained that she did not want to get appellant into trouble. Her prior act of obtaining a restraining order against him was at least partially inconsistent with a desire to avoid getting appellant in trouble, and thus cast doubt upon the veracity of her explanation and the belatedly revealed details. We cannot conclude that defense counsel’s failure to object was unreasonable and not a tactical decision.
2. Trial counsel’s failure to present evidence of mental illness in guilt phase
Appellant also contends that defense counsel rendered ineffective assistance by failing to introduce evidence of his mental illness during the trial on guilt. He argues that counsel should have introduced his mother’s testimony and that of Dr. Sahgal, particularly Sahgal’s testimony regarding the records of appellant’s early December hospitalization.
Evidence that appellant was mentally ill was relevant and admissible in the guilt phase only with respect to whether he actually formed a mental state that was an element of a charged offense. (People v. Coddington (2000) 23 Cal.4th 529, 582 overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046.) Evidence of the effect of such a mental illness on appellant’s capacity to form a requisite criminal intent was inadmissible, however. (§ 28; Coddington, 23 Cal.4th at p. 582.) To this end, the jury was instructed that it could consider evidence that appellant had a mental disorder at the time of the commission of the charged offenses in determining whether he acted with the specific intent to kill (CALJIC Nos. 3.32, 8.66).
Just before defense counsel called appellant’s mother as a witness during the guilt phase, the court informed counsel that he should question her only regarding “what happened and what his mental state was at that time ….” The court cautioned defense counsel that he must “connect it somehow to that issue and what his thinking was on that day,” and warned against “get[ting] into the vagaries of how someone might have been acting two or three days before some crime occurred unless it’s really tied into it or might have explained some motive.”
Sahgal’s testimony during the sanity phase addressed appellant’s mental state during his hospitalization on December 2nd through 5th and on May 8, 2007. It did not reflect upon his mental state on December 27, only upon his mental capacity, which was inadmissible under section 28. It was therefore not reasonably probable that the trial court would have admitted this testimony during the guilt phase, especially in light of the court’s express warnings to defense counsel regarding the necessity of tying any mental state evidence to appellant’s mental state at the time of the attack. Counsel’s failure to attempt to introduce Sahgal’s testimony did not constitute ineffective assistance.
Furthermore, appellant’s introduction of Sahgal’s testimony would have been tactically unsound, allowing the prosecution to introduce aspects of Sahgal’s testimony that were detrimental to appellant’s case, such as Sahgal’s opinion that appellant’s flight and statements to the police revealed that he understood the quality and nature of his acts at the time of offense.
None of the testimony of appellant’s mother related to appellant’s mental state at the time of the offenses, except for her testimony that, in a December 27 phone call, appellant said he feared Ortega. However, this statement tended to establish a motive for the attack on Ortega, and would strengthen the inference that appellant intended to kill her. Counsel could therefore have made a tactical decision not to ask appellant’s mother about the phone call. In any event, appellant has not established any prejudice from counsel’s failure to elicit testimony about the phone call. Appellant’s statement that he feared Ortega had no tendency to show that he did not intend to kill her. The statement would also have been contradicted by the testimony from Ortega and others that appellant repeatedly called Ortega to come over on December 27, repeatedly asked her to come into the house when she came over, and repeatedly told her he loved her after the attack.
Accordingly, defense counsel did not render ineffective assistance by failing to introduce evidence of appellant’s mental illness in the guilt phase of the trial.
DISPOSITION
The judgment is affirmed.
We concur: MALLANO, P.J., ROTHSCHILD, J.