P. v. Phillips

Filed 11/24/09 P. v. Phillips CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

Consolidated appeal from a judgment of the Superior Court of San Diego County, Melinda J. Lasater, Judge, and petition for writ of habeas corpus. Judgment affirmed; petition denied.

Lanika Phillips was convicted of first degree murder of Penny Powell under alternate theories of premeditation or murder by torture. In her habeas corpus petition, Phillips contends she was provided ineffective assistance of counsel because defense counsel did not present expert testimony concerning her mental illness to negate the mental state required for first degree murder. We stayed the appeal, issued an order to show cause, and appointed the trial judge to act as referee and hold an evidentiary hearing. Having reviewed the evidentiary record, we reject Phillips's claim of ineffective assistance of counsel.

In her appeal, Phillips asserts (1) the trial court abused its discretion in admitting evidence of an assault she committed several months before the homicide, and (2) there was insufficient evidence to support the jury's finding of first degree murder. We hold the trial court did not err in admitting the evidence of the prior assault and the record supports the first degree murder verdict.

Overview

We provide a brief overview of the record relevant to Powell's habeas petition challenging defense counsel's failure to present expert testimony concerning a mental state defense.

In November 2005, Powell was stabbed to death at the apartment she shared with Phillips at an independent living facility. Nine months before Powell's death, Phillips had assaulted a former roommate (Swantay Nash) by repeatedly stabbing her with a knife. Phillips pleaded guilty in the Nash case, and within two months of Phillips's release from jail, Powell was killed.

Phillips's severe mental disorders are extensively demonstrated in the habeas record. She has a long history of documented mental illness, beginning in 2000 when she was hospitalized in another state, and continuing in 2005 and thereafter when she was arrested and incarcerated for the Nash assault and Powell homicide. Her diagnoses include bipolar disorder with psychosis and antisocial personality disorder. While incarcerated for over two years for the Nash and Powell offenses, she regularly refused medication and deteriorated into manic or psychotic states, and frequently engaged in unprovoked assaultive behavior. She was repeatedly found incompetent to stand trial by mental health experts, and to restore her competency was subjected to orders for involuntary medication and treated at the jail's psychiatric unit and Patton State Hospital (Patton).

Attorney Charles Guthrie was appointed to represent Phillips in May 2007, after a series of other appointed attorneys were relieved from representation. By the time Guthrie was appointed, Phillips's mental disorders and history of unpredictable aggression had been well developed in the case file. Guthrie was aware of her severe mental illness, her repeated competency evaluations, her stay at Patton, and her tendency to "act out" in an aggressive fashion. Further, Guthrie had reviewed information from Dr. Matthew Carroll, who had examined Phillips a few days after the Powell homicide at the request of her first appointed attorney. Dr. Carroll had reported that when he interviewed Phillips, she did not mention any psychotic or irrational reason for the crime, but rather she had discussed reasons why she was unhappy with her roommate.

Based on Phillips's severe mental illness and the strength of the prosecution's evidence showing that she committed the Powell homicide, Guthrie recognized that a mental state defense was the best defense to the charge of first degree murder. However, from the beginning of his representation and throughout the entire proceedings, Phillips adamantly rejected Guthrie's idea of presenting a mental state defense and stated that she intended to testify before the jury that she did not commit the homicide.

Taking into account Phillips's constitutional right to testify, her history of extreme aggression when she was upset, and Phillips's failure to report a psychotic state of mind when examined by Dr. Carroll, Guthrie made a tactical decision not to call a mental health expert to testify at trial. Guthrie was particularly concerned that he not undermine Phillips's trial testimony. He assessed that if he presented testimony from a mental health expert, Phillips would erupt aggressively in the courtroom, which would cause the jury to turn against her. Although he decided not to call a mental health expert, Guthrie nevertheless presented the mental state defense to the jury through Phillips's own testimony and the testimony of another lay witness (Phillips's aunt) which referred to her mental illness; Guthrie's argument to the jury that Phillips did not have the mental state for first degree murder; and instructions to the jury regarding the mental state defense. In her habeas petition, Phillips challenges Guthrie's tactical decision to refrain from presenting expert testimony to support the mental state defense.

At the reference hearing, the parties presented extensive documentary and testimonial evidence relevant to Guthrie's tactical decision, the standard of care, and Phillips's mental disorders. For reasons we shall explain, we hold that Guthrie's tactical decision not to call a mental health expert was within the range of reasonable representation.

FACTUAL AND PROCEDURAL BACKGROUND

Phillips's aunt (Evelyn Mills) is a nurse who operated an independent living facility at her home in San Diego. From 2002 to 2005, Phillips had periodically lived at Mills's home. Mills testified that Phillips suffered from "[b]ipolar paranoid schizophrenia," and that she was prescribed several medications designed to calm her anxiety, maintain a stable mood, and address "the voices." Phillips had repeatedly told Mills that she did not have a mental illness and did not need to take medication.

According to Mills, when Phillips did not take her medication, she experienced anxiety, had mood swings, and was short-tempered, volatile, and very aggressive. On several occasions, Phillips had grabbed, scratched, hit, and pushed other housemates at Mills's facility, and she had been aggressive, volatile, and confrontational towards Mills. When Phillips was taking her medication, Mills described her as "very pleasant, joyful. You could speak with her. She wasn't agitated."

In October 2004, Phillips went to live in an apartment with her friend Nash. On or about February 14, 2005, Phillips moved out of Nash's apartment and back in with Mills. On February 21, 2005, while Nash was visiting another friend at Mills's facility, Phillips assaulted and repeatedly stabbed Nash.[1] Phillips pleaded guilty to assault with a deadly weapon, and was placed on probation and ordered to serve one year in jail.

On October 5, 2005, Phillips was released from jail for the Nash assault. Phillips moved into an independent living facility on Broadway in San Diego, where she shared a one-bedroom apartment with Powell and another roommate. Powell's and the other roommate's beds were in the living room, and Phillips's bed was in the bedroom. The other roommate frequently did not stay at the apartment.

Mills did not know if Phillips was taking her medication after she moved in with Powell. About two or three weeks before Powell was killed, the assistant manager of the Broadway facility (Aracelis Terrio) observed a verbal altercation between Phillips and Powell. Powell told Phillips that she owed Powell two cigarettes because Powell went to the store for Phillips. Phillips responded, "Back the fuck up." A couple of minutes later, Powell repeated her statement about the cigarettes and Phillips repeated the same response.

On Wednesday, November 30, 2005, Powell was found dead in the apartment she shared with Phillips. The last time Powell had been seen alive by personnel of the independent living facility was on Monday morning (November 28).

Residents of the independent living facility were provided with meals which were delivered to their apartments if they called and made a meal request. Typically, each evening Powell called and requested delivery of a meal for her and her roommate. She made the meal request for Sunday evening, but on Monday and Tuesday evening she did not call. On Monday and Tuesday evening assistant manager Terrio went to Powell's apartment, but no one answered the door.

On Tuesday, November 29, around 7:40 p.m., Mills received a call that Phillips had unexpectedly arrived at her facility. Speaking on the phone with her aunt, Phillips stated that she had come over to talk and asked if she could stay for a while. When Mills arrived home at about 9:40 p.m., Phillips was in bed. Mills asked Phillips if she wanted to talk, and Phillips responded, "No, I took my medication. I just want to rest." The next morning, Wednesday, November 30, Phillips was calm and demure. Around 12:30 p.m. on Wednesday, Mills dropped Phillips off at the Broadway independent living facility.

On Wednesday afternoon, Terrio, accompanied by Leonora Melendi, went to the Broadway facility. While Terrio was upstairs at another apartment, Melendi saw Phillips outside the apartment she shared with Powell. Phillips was acting strange, "just standing there pulling her pants up and her shirt down constantly." When Terrio arrived outside the apartment, Melendi told her that Phillips had stated she lost her key. At this point Phillips was sitting on the stairs outside the apartment. Phillips told Terrio that she had been at her aunt's house.

Terrio, who had a spare key to the apartment, entered the apartment and saw that the area where Powell slept in the living room was "a total mess." Terrio went upstairs to another apartment to ask the apartment overseer (Larry Davis) for a pen and paper so she could write Powell a letter about keeping her space clean.

While Terrio was upstairs, Phillips did not move but stayed outside sitting on the steps. Terrio returned and entered the apartment, along with Davis and Melendi. Phillips accompanied them and stood near the front door. Terrio noticed what looked like chocolate (but was in fact blood) thrown up against the refrigerator. Terrio asked Phillips, "What happened here?" Phillips simply nodded and looked down. Davis and Terrio walked further into the apartment and discovered Powell's body slumped against a wall and the refrigerator. Terrio stated "Oh my God, [Davis]. She's dead." Davis called 911. Phillips made no statements and remained standing by the front door until the police arrived.

The authorities estimated that Powell was killed on either November 28 or November 29. She incurred 213 separate stab or cut wounds. Some of the wounds involved major arteries or veins and vital organs.[2] The primary cause of death was bleeding, with a collapsed lung as a possible minor contributor. There were 86 injuries on her head and neck, 27 on her chest area, 54 on her abdomen, 26 on her left arm and hand, six on her right arm and hand, five on her back, six on her left thigh, and three on her right thigh.

There were a large number of bloodstains in the kitchen and a few bloodstains in the bedroom and bathroom. There were stains on the refrigerator, on the kitchen cabinet and counters, and on the wall behind Powell's body. There was a blood smear on the door between the bedroom and bathroom, and diluted blood drops on the bathroom floor that could have come from a person cleaning blood off their person. Given the location and nature of the bloodstains, it appeared the attack occurred largely or entirely in the kitchen.

Inside a kitchen drawer, the police found four knives (one of which was serrated) and a carving fork. All of these items had bloodstains on them. One of the knives was bent; one of them had a blade that was detached; and the tip of the serrated knife was broken off. The broken blade tip was found embedded in Powell's head. Wounds on Powell's left wrist area were consistent with injuries from a serrated knife, and injuries on her left fingers were consistent with her trying to grab a knife blade. On Powell's back and shoulder area, there were parallel, superficial cuts that were consistent with injuries made from a two-pronged object like a barbecue fork.

Based on an examination of the bloodstains and the wounds, the authorities concluded Powell was stabbed 12 times on the left side of her neck, hitting a major vein and an artery. It appeared that this portion of the attack occurred while she was standing in front of the refrigerator. On the wall behind where her body was found, there were blood spatter stains at a height consistent with her standing while her blood traveled straight onto the wall. There were also spatter stains lower on the wall consistent with Powell being lower toward the floor, and transfer stains on the wall consistent with Powell moving her head against the wall while she was bleeding.[3] Spatter stains on the kitchen counters and cabinet were consistent with Powell both standing and being on the floor, and some of the stains were also consistent with blood traveling from the refrigerator area to the counter area. It appeared that Powell was stabbed 23 times on the right side of her neck, hitting the jugular vein, when she was slumped on the floor next to the refrigerator.

Inside plastic bags in the living room, the police found a sock and a tank top with bloodstains on them. The bloodstain on the sock was consistent with someone wiping blood off something such as hands or a weapon. On a dresser in Phillips's bedroom, there was a small knife and an appointment slip with Phillips's name on it.[4] On the floor of the bedroom closet, there was a bloodstained pair of corduroy pants with one of the pant legs cut off. The cut-off pant leg, which also had bloodstains on it, was found in a duffel bag in the closet. The nature of the heavy stains on the front of the pants indicated that the pants were in close proximity to the "bloodletting event."

Phillips's probation officer, Christopher Thomas, testified that on Monday morning, November 28, 2005, he went to Phillips's apartment. Phillips's roommate (apparently Powell) answered the door and directed him to where Phillips was standing in the bedroom. Phillips was wearing clothing that looked similar to the corduroy pants and tank top found at the scene with bloodstains. Forensic testing revealed that there was DNA from more than one person on the waistband of the corduroy pants, but the predominant DNA matched Phillips's DNA. The DNA of the blood on the pants, the tank top, and the sock matched Powell's DNA. Fingernail scrapings from Powell's left hand revealed a mixture of DNA that matched Powell's and Phillips's DNA. DNA on the handle of the serrated knife and on the carving fork matched Phillips's and Powell's DNA.[5]

Phillips was interviewed by the police at the scene of the homicide and later in the evening at the police station. According to the police, she appeared unemotional and responded appropriately to questions. At the scene, she told the police that she had last seen Powell on Monday evening (November 28); on that same evening she had gone to her aunt's home; and she had returned home on Wednesday afternoon. At the police station, she initially stated she did not remember when she last saw Powell but then stated it was on Thanksgiving (November 24), and that she had spent Monday night "out playing in the street." When Detective Jana Beard asked Phillips, "Does it surprise you to hear me tell you that you stabbed her[,]" Phillips answered, "Oh, no." Beard asked Phillips why, and Phillips replied, "I don't know." When questioning Phillips about why this had happened to Powell, Beard asked, "Was it over Q-tips or something?" and Phillips responded, "No, not over Q-tips." Beard asked, "So you don't want to talk about what it was over, but it's fair to say that there was a fight between the two of you?" and Phillips responded, "I guess." Beard observed that Phillips had scratches on her arms and hands, and asked if the scratches were from fighting with Powell. Phillips stated she did not know how she got scratched.

Testifying on her own behalf at trial, Phillips denied that she stabbed Powell. She stated the door to their apartment was often unlocked and strangers came in, and the area where their apartment was located was a high crime area. When asked about the DNA on the pants found in her closet, she stated that those were not her pants or that she was "[p]ossibly framed." After denying she stabbed Powell, defense counsel asked if she had any reason or motive for stabbing Powell. Phillips responded, "No, none at all that I can think of besides the fact that she used to ask me for cigarettes sometimes. That was about it."

Phillips acknowledged that in February 2005 she had attacked Nash with a knife. She explained that she was upset because Nash was carrying a purse that belonged to her and Nash had kept some of her belongings when she moved out, and that she was also under emotional stress. She stabbed Nash with a knife that she carried in her purse for self-defense; she lost control and had not planned the attack; and she felt bad about it. She testified that she suffered from bipolar mental illness. She stated that on the day she attacked Nash she drank a beer and had taken prescribed medication, and she was not supposed to mix her medication with alcohol. She claimed that during the November 30, 2005 time period (when Powell was killed), she was taking her medication and drinking.

The jury was instructed on first degree murder on alternate theories of premeditation or murder by torture, and on the lesser offenses of second degree murder and voluntary manslaughter. Although defense counsel (Guthrie) did not call an expert witness to address Phillips's bipolar illness, the jury was instructed that they could consider the evidence of her mental disorder when deciding whether she acted with premeditation and deliberation or intent to torture. (See CALCRIM No. 3428.)

In closing arguments to the jury, Guthrie argued that the prosecution had not proven that Phillips was the person who had killed Powell, asserting, for example, that the presence of Phillips's DNA could be explained merely because she lived at the apartment. Alternatively, Guthrie argued the prosecution had not shown that Phillips had the mental state for first degree murder. Regarding this alternative theory of defense, Guthrie stated to the jury that it was obvious from Phillips's testimony that she suffered from a mental disease, and argued that her "psychological dysfunction" and the circumstances of the case showed she "just went crazy" and did not premeditate or intend to torture.[6] In rebuttal, the prosecution asserted that if Phillips's mental illness affected her mental state, the defense would have presented expert testimony to support this theory, and the defense did not do so because this theory was not supportable.

The jury convicted Powell of first degree murder with a finding that she personally used a deadly weapon.

DISCUSSION

I. Legal Principles Governing Murder

To facilitate our review of Phillips's various assertions in her habeas petition and on appeal, we first briefly summarize relevant legal principles applicable in murder cases.

Murder is an unlawful killing committed with malice aforethought. (People v. Romero (2008) 44 Cal.4th 386, 402.) Malice may be express or implied; express malice exists when there is an intent to kill and implied malice exists when there is an awareness of the danger and a conscious disregard for life. (People v. Rios (2000) 23 Cal.4th 450, 460.) Second degree murder is an unlawful killing with malice aforethought, but without the elements of premeditation and deliberation which elevate the killing to first degree murder. (People v. Bohana (2000) 84 Cal.App.4th 360, 368.) Premeditationand deliberation for first degree murderrequire a level of reflection greater than that required to merely form the intent to kill. (People v. Halvorsen (2007) 42 Cal.4th 379, 419.) To establish premeditation and deliberation, the intent to kill must be formed upon a preexisting reflection and result from careful thought and weighing of considerations rather than unconsidered or rash impulse. (Ibid.; People v. Jurado (2006) 38 Cal.4th 72, 118.) Deliberation and premeditation do not require an extended period of time, merely an opportunity for reflection. (People v. Cook (2006) 39 Cal.4th 566, 603.)

Alternatively, first degree murder may be shown under a murder by torture theory when the defendant has the intent to torture, even without an intent to kill. (People v. Cook, supra, 39 Cal.4th at p. 602.) Murder by torture is committed when the defendant commits acts causing death that involve a high probability of death, and harbors a willful, deliberate, and premeditated intent to cause extreme pain or suffering for a sadistic purpose. (Ibid.; People v. Cole (2004) 33 Cal.4th 1158, 1194.) Although first degree torture murder does not require a premeditated intent to kill, it requires the same proof of deliberation and premeditation as is required for other types of first degree murderi.e., a "calculated deliberation" to inflict pain. (People v. Steger (1976) 16 Cal.3d 539, 546; People v. Whisenhunt (2008) 44 Cal.4th 174, 201, 219.)

II. Defense Counsel's Decision Not to Present Expert Evidence on Phillips's Mental Illness to Negate the Mental State for First Degree Murder

A. Background

In her habeas petition, Phillips contends she was denied effective assistance of counsel because her trial counsel did not present expert evidence regarding her mental illness to negate the premeditation and deliberation elements of first degree murder. We issued an order to show cause and appointed the trial judge as referee. We directed the referee to hold an evidentiary hearing to address whether a mental health expert could have testified on Phillips's behalf; the substance of any such testimony; the reasonableness (or lack thereof) of defense counsel's tactical reasons for failing to present any such testimony; and whether any deficiency in defense counsel's performance was prejudicial.

At the habeas proceeding, Phillips presented the testimony of defense counsel Guthrie concerning his tactical decisions; another criminal defense attorney (John Cotsirilos) to address the standard of care; and a psychologist (Dr. Judith Meyers) who had prepared a sentencing report on Phillips's behalf. The People's witnesses included the psychiatrist (Dr. Katherine Dixon) who treated Phillips while she was in jail; a psychiatrist (Dr. Ansar Haroun) who had examined Phillips for competency to stand trial; and Phillips's probation officer (Thomas) who had seen Phillips shortly before the homicide. Additionally, the parties presented the extensive documentation concerning Phillips's mental diagnoses and behavior that had been generated during her confinement, including competency reports, a psychiatric report from Patton, and a letter from the psychiatrist (Dr. Carroll) who had examined Phillips at the request of a predecessor defense counsel. After reviewing the testimonial and documentary evidence, the referee concluded that Guthrie's decision not to present the testimony of a mental health expert did not fall below an objective standard of reasonableness and, alternatively, any deficiency in his performance was not prejudicial.

1. Phillips's Mental Disorders

The habeas record shows that Phillips has been diagnosed with two mental disorders, bipolar disorder with psychosis and antisocial personality disorder. The defense and prosecution witnesses explained the characteristics of these disorders. As we shall detail below, bipolar disorder is a mood disorder that can create a psychotic state that interferes with premeditation, whereas antisocial personality disorder is a character disorder that does not have this effect on a person's deliberative abilities. At the habeas proceeding, the defense mental health expert (Dr. Meyers) questioned the accuracy of the antisocial personality disorder diagnosis for Phillips, which had been made by the jail psychiatrist (Dr. Dixon).

Bipolar disorder is a cycling mood disorder that involves mood swings between depressive and manic states that are out of the person's control. Symptoms of mania include rapid speech, restlessness, flamboyance, exaggeration, grandiosity, hyperactivity, poor judgment, agitation, and distractibility. Bipolar disorder can also include psychotic symptoms characterized by a "break with reality" arising from delusions, auditory hallucinations, paranoid ideation, racing thoughts, and perception distortions. When a person is psychotic they may be responding to "internal stimuli," i.e., responding to voices or paranoid ideation. The disorder can cause a person to be irritable, aggressive, violent, and dangerous.

A person with bipolar disorder can have mania without psychosis. Defense witnesses acknowledged that mania alone does not impact a person's ability to premeditate and deliberate. Rather, it is the psychosis that affects this ability. For example, during a psychotic episode the defendant might have paranoid delusions that cause the defendant to misunderstand the victim's actions or to believe the victim is someone else; the defendant might hear voices commanding a killing; or the defendant might experience extreme panic or disorganization so the defendant is not really aware of what he or she is doing and cannot engage in planning behavior.

Bipolar disorder is a mood disorder that can be controlled through medication. In contrast, antisocial personality disorder, which involves maladaptive personality characteristics, is a character disorder. Antisocial personality disorder relates to the structure of the personality that does not change over time and that cannot be controlled with medication. The disorder may cause a person to use violence to deal with problems. A diagnosis of antisocial personality disorder requires observation over the course of time or significant information from an outside observer. When a person has both bipolar disorder with psychosis and antisocial personality disorder, the latter condition may become apparent after the bipolar disorder has been stabilized with medication.

It is evident from the habeas record that Phillips's bipolar disorder is severe; she has a history of being noncompliant with her medications; and she has repeatedly experienced manic and psychotic episodes. Phillips's pattern of noncompliance with her medication and ensuing mental deterioration emerged during her confinements in jail for the Nash and Powell offenses. When she refused to take her medication, she became increasingly manic, psychotic, impulsive, and aggressive, including such symptoms as talking and laughing to herself, speaking incoherently, yelling, taking off all her clothes, throwing food and smearing feces around her cell, and engaging in unprovoked assaultive and hostile behavior. She was repeatedly examined for competency to stand trial (i.e., whether she was able to understand the proceedings and assist in her defense), and vacillated between competency and incompetency.

To illustrate this pattern, in April 2005 (while incarcerated for the Nash assault) a defense psychologist was unable to interview her at the jail because she was in a severe manic state and was aggressive and uncooperative. She was treated at the jail's psychiatric unit, and in May 2005 Dr. Carroll examined her and assessed that she was competent to participate in the proceedings for the Nash assault. In June 2005, she was readmitted to the jail's psychiatric unit because of her refusal to take medication and her increasing manic symptoms. By the time of her release from jail for the Nash assault in October 2005, she was again stable. During a 20-month period after her incarceration for the Powell homicide in late 2005 until the commencement of trial in September 2007, there were repeated incidents of her mental deterioration. She would be found competent, but then she would refuse medication, her condition would deteriorate, and she would no longer be competent. During her periods of mental deterioration, she was placed in the jail's psychiatric unit, was required to take medication pursuant to court order, and was sent to Patton for several months of treatment.[7] In August and September 2007, she was again assessed to be competent to stand trial by two psychiatrists (Dr. Haroun and a second psychiatrist), and she remained competent until the conclusion of the trial and sentencing in November 2007.

2. Guthrie's Strategic Decisions

After her arrest for the Powell homicide, from December 2005 to May 2007, Phillips was represented by several different appointed attorneys (not Guthrie).[8] Guthrie was appointed to represent Phillips in May 2007. At the habeas proceeding, Guthrie testified that he had been an attorney for 31 years, had handled about three or four homicide cases, and had handled cases involving psychiatric defenses.

By the time Guthrie was appointed as Phillips's counsel, she had already been repeatedly examined for competency; she had been to Patton for several months to restore competency; and there was extensive documentation concerning her mental illness. She had also already been examined by Dr. Carroll (shortly after the Powell homicide) at the request of a predecessor defense counsel.[9] Guthrie reviewed the extensive documentation in her case. He was aware of her bipolar mental illness, her antisocial personality disorder diagnosis, and her history of unpredictable aggression (including the Nash assault and her aggressive behavior while confined). Guthrie assessed that a psychiatric defense (including not guilty by reason of insanity and diminished actuality) was in her best interest. Although he thought there was room for reasonable doubt as to Phillips's identity as the person who committed the homicide, he recognized the prosecution's case concerning identity was strong.

Guthrie testified that during periods when Phillips was stabilized on medication and competent, he spoke with her multiple times about presenting a psychiatric defense. He tried to convince her that a psychiatric defense was in her best interest because it could substantially reduce her prison time or result in placement in a mental institution for life instead of prison. When Guthrie discussed a mental state defense with Phillips, she became angry and was adamant that she did not want any psychological evidence presented in her case. She told Guthrie she did not want anything to do with a psychiatrist or psychologist and she did not want a psychiatrist or psychologist to testify that there was something wrong with her. She stated she was not guilty; she did not want to be in a mental institution for the rest of her life; and she intended to testify before the jury that she was innocent. From the first time Guthrie met her and throughout the trial she never deviated from her claim that she was innocent. Guthrie stated she was so upset about his efforts to get her to accept a mental state defense that she asked for (and briefly received) self-representation status.[10] Guthrie testified that after he was reappointed as her counsel, she still did not want a psychiatric defense of any kind.

Guthrie felt he owed a duty to Phillips to support her identity defense since she claimed she did not commit the murder and intended to testify to this effect before the jury. Further, because of her opposition to a psychiatric defense, he decided not to call a mental health expert to support an alternate mental state defense. He acknowledged that a mental health expert could have testified at trial even without Phillips's cooperation, and he knew that it was unlikely the court would have permitted Phillips to regain her pro. per. status after having once relinquished the privilege. Nevertheless, Guthrie explained that he decided not to call a mental health expert because it was important that Phillips continue to cooperate with him and that she be peaceful and not "act[] out" in front of the jury. On a few occasions Phillips had briefly "go[ne] off" verbally and physically in his presence, and he knew she was capable of "going off in front of the jury." He believed that if he put a mental health expert on the stand, this would cause Phillips to "go off." He thought this would prejudice her case, explaining: "[W]hen they go off in front of the court and they're 10 feet away from the jury or 15 feet away from the jury or maybe even in the stand. The jury sits back on their heels. Their eyes get bigger, and it's no longer an academic discussion. It's a very personal thing. [] If I took Ms. Phillips to trial, one of my main considerations would be to try and keep her copacetic, peaceful at trial."

Guthrie also considered information set forth in a letter from the psychiatrist (Dr. Carroll) who had examined Phillips shortly after the Powell homicide at the request of the first attorney who was appointed to represent Phillips. Dr. Carroll interviewed Phillips on December 9, 2005, about 10 or 11 days after the Powell homicide. In the letter to the predecessor defense counsel, Carroll stated that Phillips appeared competent to stand trial and that it did not appear there was evidence to support a not guilty by reason of insanity plea. Carroll stated that Phillips was able to speak in a logical and coherent manner. Phillips did not directly discuss the offense with Carroll. However, Phillips told Carroll she was "extremely unhappy" with her roommate; her roommate was always asking her for cigarettes and stealing her clothes, money and food; and she reported her problems with her roommate to her family, her friends, her probation officer, and the independent living staff. Phillips told Carroll "the stress just built up on her" and she "had to take things into her own hands." Carroll stated that Phillips "did not report any psychotic or irrational reason for her crime," but "essentially stated that she was fed up with her roommate stealing her things."

Guthrie noted that Dr. Carroll's examination reflected that Phillips made no reports of delusions or voices and that she described her motive of "taking matters into her own hands." Guthrie also considered that if he called a mental health expert, the prosecutor would have a "field day" cross-examining the expert about the Nash assault to emphasize that the facts of that assault suggested Phillips knew what she was doing. Because of his decision to focus on the identity defense demanded by Phillips, Guthrie did not consult with or retain a mental health expert to assist with the case and did not contact the doctor who was administering Phillips's medications after her release from custody for the Nash assault about two months before the Powell homicide.

By the close of the prosecution's case, Guthrie recognized that the evidence of identity was "overwhelming." Also, he recognized that the manner in which Phillips had testified before the jury reflected her mental illness. He decided to present the mental state defense as an alternative defense without the use of expert evidence. He supported the defense through instructions, argument to the jury, and the evidence of her bipolar illness that was otherwise in the record (including her aunt's testimony, her own testimony, and the nature of the killing). He stated he used the mental illness evidence that was presented in the case without having caused Phillips to "go[] off" in front of the jury.

3. Standard of Care

To support her position that Guthrie's representation fell below the standard of care, Phillips presented the testimony of Attorney Cotsirilos, a criminal law specialist who had tried about 30 to 35 homicide cases and handled numerous cases involving mental state defenses. Cotsirilos testified that Guthrie should have, from the inception of his representation, retained a mental health expert to advise him and to meet with Phillips even over Phillips's objection. Cotsirilos stated that Guthrie should not have relied on Dr. Carroll's letter without speaking to Carroll because it was questionable whether Carroll had enough information to form an opinion concerning a mental state defense. The defense mental health expert should have met with Phillips consistently from the beginning of the case, so that he or she could develop a rapport with Phillips and Philips would "open up" and talk about what she was thinking at the time of the offense. For example, Phillips might have disclosed to the defense mental health expert whether she heard voices or thought Powell posed a threat to her. Cotsirilos stated Guthrie should have also investigated whether Phillips was taking her medications at the time of the homicide.

Cotsirilos testified that it is very common for persons with psychotic illnesses to have no insight into their illness and to deny that they committed the offense. Cotsirilos opined that Guthrie should have presented expert evidence concerning Phillips's mental illness even if (1) a defense mental health expert had been unable to secure Phillips's cooperation with a mental state defense; (2) Phillips planned to testify that she did not commit the crime; and (3) Phillips remained adamantly against the mental state defense.

Cotsirilos stated that even though mentally ill defendants may be competent to stand trial, they may not be competent to make a decision in their best interest as to how to defend themselves. To support his conclusion that Guthrie should have overridden Phillips's rejection of a mental state defense, Cotsirilos noted that Phillips had a long history of mental illness and psychosis; the evidence of her identity as the killer was overwhelming so as to make a mental illness defense the only viable defense; the nature of the killing reflected a "mindless frenzy" that was "detached from reality" and typical of a psychotic episode; and Phillips's mental illness was evident from her testimony before the jury.

Cotsirilos stated that it would not have been inappropriate for Guthrie to alert Phillips that he was going to go against her wishes and present the mental state defense. There would have been no danger of Phillips being given pro. per. status in response to this decision because the trial court had already revoked that status. Cotsirilos opined that it fell below the standard of care to refrain from presenting the expert evidence merely to prevent the defendant from "act[ing] out" in front of the jury because the goal is to convince the jury that the defendant has a mental illness, and acting out behavior would help the jury understand the defendant's mental illness. Cotsirilos opined that although Guthrie did argue the mental state defense to the jury, his failure to present expert evidence resulted in only minimal supporting evidence and undermined confidence in the outcome of the trial.

4. Proffered Testimony Relevant to Phillips's State of Mind

a. Defense Evidence

Dr. Meyers testified at the habeas proceeding on behalf of Phillips regarding expert testimony that could have been presented by the defense at trial. Meyers had performed a review of Phillips's records at the defense request for purposes of sentencing, and she testified she could have performed the same review for trial had she been asked to do so.

Dr. Meyers did not attempt to personally interview Phillips because of Phillips's history of dangerousness and lack of cooperation with psychiatrists or psychologists, and because Meyers felt she could provide an opinion based on the large amount of mental health information already available. Meyers opined that the excessive stabbing that occurred during the offense reflected mania and an inability to stop the behavior. The extremely high number of stabs also suggested that Phillips was experiencing psychosis, i.e., that she was responding to internal stimuli or paranoid ideation. Her use of multiple knives could suggest disorganized thinking reflective of psychosis.

Dr. Meyers testified that if Phillips was psychotic at the time of the offense, it would be expected that she would also be psychotic later on that day and the next day. She opined Phillips could have been psychotic when she went to her aunt's home and withdrew to her room because she might have "been preoccupied with her internal stimuli." Meyers referred to a police report that stated Phillips laughed when she was shown the body at the crime scene by the police. Meyers opined that this reflected psychosis because her "affect was out of touch with the circumstances and pretty uncontrolled." Meyers also reviewed a video of a November 30 police interview with Phillips after the homicide and noted that Phillips was "very shut down" or she was "labile, silly, giggling." Even though Phillips did not appear agitated, the silliness and inappropriate laughing suggested she was in a manic phase of her bipolar illness. Meyers could not ascertain from the video whether Phillips was having a psychotic episode, although she observed symptoms that were consistent with Phillips's chronic psychotic disorder. However, Meyers did not notice any signs that Phillips was reacting to internal stimuli, such as visual or auditory hallucinations, during the interview.

Dr. Meyers acknowledged that the information in Dr. Carroll's letter (derived from an examination of Phillips 10 or 11 days after the crime) reflected that Phillips had indicated that the reason for the killing was that she had a grudge against her roommate. However, Meyers noted that according to Carroll's report, Phillips did not specifically discuss the crime. Meyers surmised that Carroll's conclusion "was drawn from the fact that [Phillips] did discuss her feelings about her roommate and from that he concluded that there was a motive." Additionally, Meyers noted that Carroll's description of Phillips's state of mind as lucid and logical was different from the inappropriate behavior observed near the time of the offense, and that an interview very close in time to the offense was needed to get an actual estimate of what she was thinking at the time of the offense.

Dr. Meyers also questioned whether Phillips had antisocial personality disorder. She noted that the antisocial personality diagnosis (which was made by the jail psychiatrist, Dr. Dixon) had not been made by the Patton psychiatrist who treated Phillips when she was there to regain her competency. Meyers stated that Patton staff would have been in a position to observe her on a daily basis over time and to make a more complete evaluation, and if she had exhibited antisocial behavior it would have been included in the hospital's diagnosis.[11]

b. Prosecution Evidence

Testifying on behalf of the prosecution at the habeas proceeding, the jail psychiatrist (Dr. Dixon) stated that she saw Phillips on a regular basis from February to October 2005 when she was incarcerated after the Nash assault, and then again beginning in December 2005 after the Powell homicide.[12] Dixon testified that Phillips's psychosis was "episodic," meaning that sometimes she was psychotic and sometimes she was not. Her psychotic episodes came on gradually and required two to four weeks of treatment to bring her mood back to a normal level. Because the process was gradual, it is difficult to pinpoint when Phillips entered and left psychosis. The psychosis was at the height of the mania, and the psychosis could begin to resolve while the mania still continued for a period of time. Phillips's general pattern was that she became increasingly uncooperative, irritable, hostile, hyperverbal, and aggressive; she threw food around and smeared feces; her mood was elevated; and she had an excessive activity level and an inability to follow directions. When the psychosis had dissipated, her control was better; she was able to hold a conversation; and her irritability decreased. Dixon explained that some people with bipolar disorder experience rapid cycling between a manic and a depressed state from one day to the next. However, Dixon stated that Phillips never exhibited this pattern of rapid cycling, and her mania never resolved without medication.

Dr. Dixon testified that while in custody for the Nash assault Phillips took the mood stabilizer Depakote every day and received an injection of the antipsychotic medicine Risperdal every two weeks. The witnesses at the habeas proceeding could not verify whether Phillips had been taking her oral medication after her release from custody on October 5, 2005. While incarcerated for the Nash assault she received a Risperdal injection in late September 2005, and her next injection after her release would have been due on October 12. None of the witnesses knew whether she had received an October 12 injection or any subsequent injections in October or early November. The only information acquired was that she received an injection of the antipsychotic Haldol on November 28 at her doctor's office (the day of or the day before the homicide). Assuming a patient has not been compliant with previous medications, Haldol takes about two to three weeks to achieve a stabilizing effect, and Depakote takes about five days to achieve an effect. If oral medication is taken in conjunction with an injection, the patient can obtain faster relief.

Dr. Dixon testified that historically Phillips would not continue to take her medication on a long-term basis unless she was forced by court order or by injection. She might voluntarily take medication for a few weeks or longer, but would eventually discontinue it. When she refused to take medication, sometimes she would stay stable for a period of time and other times she would decompensate fairly quickly. Dixon stated that if Phillips had not received an injection after her release from custody in October until the November 28 injection, she could have decompensated. On the other hand, she could have remained stable because there were times when she did not decompensate for two to three months after medication refusals.

Phillips's probation officer (Thomas) testified at the habeas proceeding that he had contacts with Phillips on October 31, 2005, and on two occasions in late November 2005. During these contacts, she did not exhibit any unusual behaviors such as talking fast, agitation, or confrontation. Thomas visited Phillips at her apartment on Monday, November 28, 2005 (the day of or the day before the homicide) for about 10 minutes. A few days earlier, Phillips had been to his office and asked if she could get a place to live alone. Thomas told her he would visit her apartment and that if it was acceptable they would just leave her there for now. During the office visit and his subsequent visit to her apartment, her demeanor was essentially the same. When he visited her at the apartment, Phillips was awake, alert, and cooperative, although she was "[a] little flat" and "a little zoned out" and did not display a lot of energy. Phillips showed no signs of agitation or anger and did not appear unfocused or to be losing concentration. She was calm and their conversation was rational.

During this visit Phillips told Thomas she did not want to stay at the apartment any longer and asked if she could move out and get her own place by herself. She complained that the apartment was too small, she was not happy there, and it was boring. She did not make any specific complaints about her roommates, but stated she did not want to have roommates. Thomas told her she was living in a stable environment and they wanted her to stay there. She responded, "Well, I don't like it," but did not display any emotion or get excited or agitated and seemed to accept it.

Dr. Dixon saw Phillips at the jail on December 1, 2005 (two or three days after the homicide). Phillips was calm, cooperative, lucid and rational. Dixon did not see any indications that Phillips was decompensating, manic, or psychotic. Dixon opined that because there were no indications of mania or psychosis on December 1, a claim that she was manic or psychotic on November 28 or 29 would not be consistent with her pattern.

Dr. Dixon testified that she added the antisocial personality disorder diagnosis to Phillips's diagnosis in September 2006 after having had enough contact with Phillips when she was manic and when she was not manic. Even when Phillips's bipolar disorder was stabilized with medication and she had not decompensated, she still engaged in maladaptive behaviors, including violent behavior. Her maladaptive behaviors included repeated assaults and injury to others; disregard for authority and rules of behavior; lack of remorse for her behaviors; and poor behavioral controls.[13]

B. Analysis

We independently review Phillips's claim of ineffective assistance of counsel. (In re Thomas (2006) 37 Cal.4th 1249, 1256.) To show ineffective representation the defendant must establish by a preponderance of the evidence that counsel's performance fell below an objective standard of reasonableness, and that there is a reasonable probability that absent counsel's deficiency the result would have been different. (People v. Weaver (2001) 26 Cal.4th 876, 925; In re Thomas, supra, at p. 1257.) In evaluating claims of ineffective assistance of counsel, we " ' "address not what is prudent or appropriate, but only what is constitutionally compelled." ' " (In re Andrews (2002) 28 Cal.4th 1234, 1255.)

The proper measure of attorney performance is reasonableness under prevailing professional norms. (In re Thomas, supra, 37 Cal.4th at p. 1258.) There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. (People v. Weaver, supra, 26 Cal.4th at p. 925.) "We consider counsel's performance from his perspective, analyzing counsel's decisions based on what he knew or should have known at the time." (In re Thomas, supra, at p. 1257.) Courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight. (People v. Weaver, supra, 26 Cal.4th at p. 926.)

Even debatable trial tactics do not constitute a deprivation of effective assistance of counsel. (People v. Weaver, supra, 26 Cal.4th at p. 928.) As explained in People v. Wrest (1992) 3 Cal.4th 1088: " '[O]ur review of counsel's performance is . . . highly deferential. . . . "It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. . . . 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.'. . .  There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way." ' " (Id. at pp. 1114-1115.) If the record shows counsel's decisions resulted from an informed tactical choice within the range of reasonable competence, the conviction must be affirmed. (People v. Diaz (1992) 3 Cal.4th 495, 557.)

Evidence of mental illness may negate premeditation for first degree murder. (People v. Padilla (2002) 103 Cal.App.4th 675, 679; see People v. Steele (2002) 27 Cal.4th 1230, 1253.) Testimony from a mental health expert is important, and in some cases may be essential, to the jury's understanding of a mental state defense. (See People v. Frierson (1979) 25 Cal.3d 142, 163-164; People v. Moore (2002) 96 Cal.App.4th 1105, 1117.) Here, Guthrie reviewed extensive information concerning Phillips's mental illness, recognized that a mental state defense was the best defense, and repeatedly urged Phillips to accept a mental state defense. However, Phillips adamantly told Guthrie that she did not want the defense; she did not want a psychiatrist or psychologist to testify at trial that she was mentally ill; and she wanted Guthrie to present solely an identity defense. According to Guthrie, her opposition to a mental state defense was so entrenched that she requested self-representation because of his attempts to persuade her to accept a mental state defense.

Ordinarily, a defendant cannot prevail on a claim of ineffective representation when an attorney honors the defendant's request not to present certain evidence. (People v. Lang (1989) 49 Cal.3d 991, 1030-1032.) In Lang, the defendantinstructed defense counsel not to call a relative to present mitigating evidence at the penalty phase in the death penalty case to avoid emotional trauma to the relative. On appeal, the defendant argued trial counsel rendered ineffective assistance by abiding by the defendant's wishes. (Id. at p. 1029.) Rejecting this claim, the court noted that defense counsel did present some mitigating evidence in the form of testimony showing defendant's good conduct while in jail. (Id. at p. 1030.) Further, the court reasoned: "[A]n attorney's duty of loyalty to the client means the attorney 'should always remember that the decision whether to forego legally available objectives or methods because of non-legal factors is ultimately for the client. . . .' [Citation.] To require defense counsel to present mitigating evidence over the defendant's objection would be inconsistent with an attorney's paramount duty of loyalty to the client and would undermine the trust, essential for effective representation, existing between attorney and client. Moreover, imposing such a duty could cause some defendants who otherwise would not have done so to exercise their Sixth Amendment right of self-representation . . . resulting in a significant loss of legal protection for these defendants . . . ." (Id. at p. 1031.)

The Lang court recognized that selection of defense witnesses is generally a matter of trial tactics over which the attorney, not the client, has ultimate control. (People v. Lang, supra, 49 Cal.3d at p. 1031.) However, the court reasoned that "it does not necessarily follow that an attorney acts incompetently in honoring a client's request not to present certain evidence for nontactical reasons. . . . Given the attorney's ethical duty of loyalty to the client, it is 'not outside the range of competent attorney actions to fail to present mitigating evidence when the defendant adamantly endorses that position.' " (Ibid.; accord People v. Deere (1991)53 Cal.3d 705, 717; People v. Snow (2003) 30 Cal.4th 43, 112, 116.)

Alternatively, the Lang court concluded that even if counsel acted improperly in honoring the defendant's wishes, the invited error doctrine should be applied to bar the claim. Under this doctrine, a party is estopped from challenging the fairness of a trial based on circumstances of the party's own making. (People v. Lang, supra, 49 Cal.3d at pp. 1031-1032.) The court concluded this doctrine applied to estop the defendant from claiming ineffective assistance of counsel based on counsel's omission in conformance with the "defendant's insistent request that certain evidence not be presented." (Id. at p. 1032; accord People v. Deere, supra, 53 Cal.3d at p. 717; People v. Snow, supra, 30 Cal.4th at pp. 116, 120.)

In Foster v. Strickland (11th Cir. 1983) 707 F.2d 1339, 1343, a federal court reached essentially the same conclusion as in Lang, in the context of defense counsel's failure to present a " 'depraved mind' " defense to support second degree murder. The Foster court rejected the defendant's ineffective representation claim because the defendant had refused a mental state defense and instead insisted that his attorney blame the murder on two other individuals present at the scen