P. v. Treadaway and Logue

Filed 12/2/08 P. v. Treadaway and Logue CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Chelsea Marie Logue and Eric William Treadaway appeal from multiple convictions of offenses including residential burglary, residential robbery, attempted murder and assault with a firearm. Logues defense at trial was that she was forced by Treadaway to accompany him before and after the offenses. She contends that the trial court erred in excluding evidence critical to this defense and in denying her motions to sever her trial from Treadaways; that there was insufficient evidence she knowingly aided and abetted the attempted murders and assaults with a firearm; that the trial court erred in admitting other crimes evidence; and that the trial court erred in failing to instruct the jury sua sponte on the defense of accident or misfortune. In a related petition for writ of habeas corpus, Logue contends she was denied effective assistance of counsel by her attorneys failure to obtain a qualified expert witness in time for trial.

Treadaway joins Logues contention regarding the defense of accident or misfortune, and separately argues that the trial court precluded him from presenting a claim of right defense by limiting state of mind evidence to Logue; erred in giving a jury instruction on circumstantial evidence; erred in sentencing him to both an upper term and consecutive terms; and erred in failing to stay enhancements on two counts.

We affirm the judgment. Logues petition for writ of habeas corpus is denied.

STATEMENT OF THE CASE

An amended information, filed on February 16, 2006, charged appellants with first degree residential burglary (Pen. Code,  459^[1]count 1); two counts of attempted murder ( 187, subd. (a), 664counts 2 [Jason Rossi] and 3 [Marcus Derry]); four counts of attempted first degree residential robbery ( 211counts 4, 5, 6 and 7); and four counts of assault with a firearm ( 245, subd. (a)(2)counts 8, 9, 10 and 11). In addition, Treadaway was charged with one count of being a felon in possession of a firearm ( 12021, subd. (a)(1)count 12). The information alleged that Treadaway personally inflicted great bodily injury ( 12022.7, subd. (a)) in connection with counts 1, 2, 3, 4, 5, 6, 7, 8, and 10; personally used a firearm within the meaning of section 12022.5, subdivision (a), in connection with counts 1, 8, 9, 10 and 11, and within the meaning of section 12022.53, subdivision (b), in connection with counts 2, 3, 4, 5, 6, 7; personally discharged a firearm ( 12022.53, subd. (c)) and personally discharged a firearm causing great bodily injury ( 12022.53, subd. (d)) in connection with counts 2, 3, 4, 5, 6, and 7. With respect to Logue, the information alleged in connection with counts 1 through 11 that a principal in the offenses was armed with a firearm ( 12022, subd. (a)(1)). Finally, the information alleged that Treadaway had suffered four prior convictions and three prior prison terms ( 667.5, subd. (b)).

After a joint trial, the jury convicted Treadaway on all counts and found all the enhancement allegations true. The jury convicted Logue of all 11 counts with which she was charged and found the arming allegations true. On July 13, 2006, Treadaway was sentenced to a total prison term of 114 years eight months to life. On July 24, 2006, Logue was sentenced to a total prison term of 12 years.

Treadaway filed a timely notice of appeal on July 13, 2006. Logue filed a timely notice of appeal on July 27, 2006.

STATEMENT OF FACTS

Prior to July 28, 2004, Jason Rossi^[2]had known Logue for about a year; they had been involved in a sexual relationship, but had had an argument and he had not seen her for a couple of days. On the afternoon of July 28, Jason was at home in Castro Valley when Logue called and asked to come over. Jason had been drinking beer since the morning and was feeling the effects of the alcohol. Also at Jasons house were his brother, Erick, and Ericks friends Marcus Derry and Ashley OCallaghan. Erick and his friends had not been drinking alcohol or consuming other intoxicants.

About 20 or 30 minutes after Logue called, she came to the house and Jason answered the door. He saw a black Honda Prelude outside, still running. They walked to the car and Logue turned the car off by unhooking the battery. There was no one in the car and Jason did not notice anyone on the street. He and Logue returned to the house, Jason closed the door and believed he locked it. Jason went into the kitchen and saw Logue walk over to his brother, Erick, who was sitting in a chair in the family room. Logue appeared to give Erick a hug.

From the kitchen, Jason heard Erick say there was someone in the house. Jason went to see what Erick was talking about and, while standing where the kitchen met the family room, saw a person standing about 10 feet away, in the family room, wearing a mask and holding a gun. Jason laughed at the man, who appeared to be scared. He did not remember the exact sequence of events, but testified that he lunged forward and hit the man at least once, heard a gunshot and became aware he had been shot. He heard the man say something like break yourself, get on the ground. Jason testified that he remembered the man said something about demanding money, but acknowledged that in a taped statement to the police in October 2004 he had said the man did not mention money, and that in his preliminary hearing testimony he did not say anything about money. Jason testified that he wrestled with the man, trying to fight him, ended up shot again and fell to the ground. He did not remember whether the man also fell down. At the preliminary hearing, Jason had testified that the man looked spooked, he hit the man in the teeth before the first shot was fired, he hit the man more than once, the man fell to the ground and Jason jumped on top of him. Jason testified at trial that he exaggerated at the preliminary hearing because he was angry. Jason did not see Logue again after he observed her going to hug Erick. Jason acknowledged that at the time of trial he was on probation for three misdemeanor offenses and had a pending probation violation, but stated this did not influence his testimony. A sheriffs deputy who responded to the scene of the shooting testified that Jason told him Jacob Cowin might have been the shooter, but it was determined that Cowin was in custody at the time.

Erick testified that after Jason went to answer the door, he was gone for a while, so Erick went to the door and saw Jason holding up the hood of a black car. Erick returned to his chair and Jason came inside with Logue. Erick stood up to hug her and, as he was sitting down again, saw her walk toward the door. Five or ten seconds later, a man wearing a ski mask ran into the house with a handgun. The man stood between Erick and the television, pulled a gun out of his sweater and pointed it at Erick, sitting in the chair, and Derry and OCallaghan, who were sitting on the couch. The man told them to get on the ground. At trial, Erick did not remember the man also demanding money. Later on the day of the incident, however, Erick told a police officer that the man had said, Get on the ground and give me your fucking money. In a taped statement to a different officer, Erick did not mention the demand for money, saying only that the man had directed them to get on the ground. A few days later, the first officer asked whether the man had asked for money and Erick replied in the affirmative. At the preliminary hearing, Erick testified that the man demanded, Get on the ground and give me your fucking money.

Erick saw Jason run toward the man, who walked toward Jason and pointed the gun at him from about four feet away. Jason hit the man in the face and, simultaneously, Erick heard a gunshot. Erick testified that Jason was shot before he hit the man, although at the preliminary hearing he had testified that Jason hit the man, and there was a scuffle between them, before the shot was fired. Erick explained that he remembered things differently at the time of trial than he had at the preliminary hearing.

After the first shot, Erick saw Jason grab the mans arm, heard another shot and saw Jason fall down. Erick started to stand up and the man, about four feet away, pointed the gun at Ericks face and pulled the trigger. The gun did not fire, and Erick hit the man repeatedly. The man fell down onto his knees and elbows and Erick, continuing to hit the man, became aware of Derry kicking the man in the head. Erick heard a gunshot; Derry said ow, jumped back and ran toward the front door. Erick ran upstairs to his room and opened the window, intending to jump out onto the roof. Out the window, Erick saw the black Honda Prelude he had seen Jason with earlier, and saw Logue sitting in the passenger seat. Erick saw the gunman walk quickly from the garage to the car and reach under the hood. Erick ran downstairs and outside, where he saw the Honda Prelude turning the corner up the street. He ran back inside to help Jason, called 911, and called his mother. Erick estimated that the entire incident, from when he first saw the gunman to when he ran upstairs, lasted no more than three minutes. Later, Erick saw the car at the police department and recognized a jacket found in the car as the one Logue was wearing on July 28. At trial, Erick identified a tan sweatshirt as the one the gunman was wearing.

Derry testified that after Logue gave Erick a hug, she disappeared and Derry saw the masked gunman jog from the hall into the family room. The man pointed the gun at everyone and demanded, Everybody on the ground, give me your money. Jason ran from the kitchen toward the gunman, who pointed the gun at Jason and fired two or three shots. Jason reached the man and pushed or hit him, the two struggled and Jason fell to the ground. Derry saw the gunman point his gun at Ericks head and pull the trigger, and when Erick got up and began to tussle with the man, Derry joined by kicking the mans head. The man was on his back on the ground. The gunman shot again and Derry was hit in the groin, although he did not realize this until later. Derry ran to the door, in a state of shock and pretty frantic, with OCallaghan behind him. The door was open and Derry saw Logue standing by it, smiling. He and OCallaghan ran to a trail a couple of houses away and hid. Derry saw the masked man driving away in a black car, then he and OCallaghan returned to the house. The police were there and Derry fainted. He had surgery and was hospitalized for about two weeks. When first interviewed by the police, while he was at the hospital shortly after the incident, Derry did not relate the gunmans demand for money. Derry estimated that the incident, from the time he saw the gunman to the time he ran out the front door, lasted about two minutes.

Ashley OCallaghan testified that she heard Jasons phone ring and heard him say, Just a few people, no one to worry about. He got off the phone and told Erick that Logue was coming over. When Logue arrived, she came into the living room, hugged Erick, then walked away. OCallaghan then saw the masked gunman enter the living room and wave the gun around. OCallaghan testified that she did not hear the man say anything, although she acknowledged that in her police statement she related the man having said freeze. Jason came from the kitchen, walking fast and saying, Oh, hell, no. The gun was pointed directly at Jason and OCallaghan heard a shot either right before or right after Jason reached the gunman. Jason and the man wrestled, OCallaghan heard another shot, and the man let Jason down to the floor. Erick moved toward the gunman and begin hitting him, and Derry joined in, kicking the man. OCallaghan heard a third shot, and Derry jumped up and ran toward the front door. OCallaghan jumped over the back of the couch and followed him. The front door was open and OCallaghan saw Logue standing, holding onto the door. OCallaghan stopped, thinking Logue was trying to get out of the house. Logue did not move but looked and smiled at OCallaghan. OCallaghan ran outside, grabbed Derry, who was hunched over on the sidewalk, and they ran to a trail. On the way, OCallaghan saw the still-masked gunman driving a black car. In her police statement, OCallaghan had stated that she heard the second gunshot after Erick got up from his chair; at trial she testified this was not correct.

Mark Walton was in a parking lot opposite the Niles Canyon railway yard at about 3:40 p.m. on July 28, 2004, when he was approached by a young man asking to use his cell phone. Walton refused, and the man returned to a black car that Walton had seen him drive into the parking area. Walton saw the man take a jacket out of the trunk of the car and then walk toward the creek with a woman Walton had seen get out of the passenger side of the car. The woman did not appear to be in any distress and did not attempt to run away.

Alameda County Deputy Sheriff Timothy Schellenberg heard a broadcast about the shooting in Castro Valley and began to search for the suspect vehicle. At about 4:00 p.m., he saw a black Honda Prelude parked in the lot at Sims Park on Niles Canyon Road and noticed it was running but no one was inside. Schellenberg saw a black jacket on the passenger seat and a black mask on the drivers seat. In the trunk, Schellenberg found a black revolver, inside of which were five expended shell casings and one bullet. The police also found a tan hooded sweatshirt in the trunk. Subsequent DNA testing determined that saliva on the mask found in the black Honda Prelude matched Treadaways genetic profile and blood on the tan sweatshirt matched Jasons genetic profile.

The police recovered a bullet from the wall of the kitchen at the Rossi residence, and one from the floor of the family room, as well as one removed from Jasons torso during surgery. The three bullets were determined to match each other and to have been fired from the gun that was recovered from the black Honda Prelude. The criminalist who examined the revolver testified that the location of the live bullet found in the revolver was consistent with a hypothetical sequence in which a person fired a minimum of two rounds, then another round was fired or a misfire occurred, and then at least one more round was fired. She explained that each individual chamber in a revolver must be loaded by hand, and that the hammer must be pulled back for the weapon to fire.

Prior to July 28, 2004, Douglas Young had known Logue for about a month and Treadaway for a couple of weeks; the two had been at Youngs house on three or four occasions and Young had seen them talking to each other there. Youngs house was a party house where it was common for people to stop by and use methamphetamine. Jason Rossi had come by the house a few times. Young testified that Logue borrowed his Honda Prelude on July 28, 2004. They walked out of Youngs house together and Young gave Logue the car keys, then saw her drive toward the front of the complex where she stopped and Treadaway got into the passenger seat of the car. Young and Treadaway greeted each other briefly and Young confirmed that Treadaway was accompanying Logue to a doctors appointment. Young had described the events differently at the preliminary hearing, saying that Treadaway came to his house after Logue did and he gave Logue the keys after seeing her talking with Treadaway.

About three and a half hours after Logue and Treadaway left in Youngs car, a police officer contacted Young about his car; Young did not know where the car was and told the officer he had loaned it to someone. Young identified photographs of his car at trial and testified that when he loaned the car to Logue he did not have a weapon or a mask in it. A jacket found in the car was not Youngs. Young testified that his car had ignition problems and sometimes would continue to run even when the key was not in the ignition. About a month before July 28, a gun Young owned went missing and there was some talk about Jason having it. Young was on probation for a misdemeanor driving under the influence conviction at the time of trial, but testified that he did not feel compelled to help the prosecution because of this. He acknowledged that he did not have a really good memory of the events described in his testimony.

Janice Logue, Chelsea Logues stepmother, was contacted by the police on July 28, 2004, and told them she had had an argument with Chelsea the evening before. She also said she had seen Chelsea driving a black Honda the prior Thursday to Sunday.

On August 13, 2004, Alameda County Deputy Sheriff Emmanuel Christy saw Treadaway driving a gray Grand Am in Hayward with Logue in the front passenger seat. As Christy and his partner were driving next to the Grand Am, Treadaway and Logue looked at them and Treadaway swerved quickly to the left and sped away. Christy activated his vehicles lights and siren and pursued as Treadaway drove at a high rate of speed, running stop signs and red traffic lights. Christy lost sight of the Grand Am, then later found it, but not its occupants, down a ravine. Logue was found by the police later that day.

On the morning of August 14, Alameda County Deputy Sheriff John Pinnegar saw Treadaway walking on a street in Hayward. When Pinnegar attempted to stop him, Treadaway took off running and jumped over a chain link fence. Later that day, the police received an anonymous tip that Treadaway was at 381 Laurel Avenue. Officers attempted unsuccessfully to contact Treadaway by knocking at the front door and announcing their presence through an open window, then entered through the window, found Treadaway in the living room, and arrested him. Several other people were in the room, including Christopher Fernandes. Fernandes testified that he knew Treadaway slightly and that Treadaway had said the police were looking for him and asked Fernandes to hide him in the house.

The police found a Gucci pocketbook on the front passenger floorboard of the Grand Am that had been abandoned by appellants. In the trunk of the car, the police found a red notebook (exh. No.  33) containing a three-page letter that detailed facts about the events of July 28, and was signed on the second and third pages, always and forever, your goose girl, Chelsea Marie Duncan. This letter was written to Ronnie, and described being at Jasons house when a man barged in, Jason and his brother started beating him and there were gunshots. The writer said she was forced to drive away with the man, had been kept in a dark room ever since, did not know who had her, because the man always wore a black mask, did not know where she was, and did not even know whether she had eaten. The letter referred to being beaten by the man and wanting to come home and be with my family and my baby girl.

The police also found a drivers license in the name Rosa Elena Rivera Castro in a brown leather backpack in the trunk of the car, and another license in the same name in a wallet on the floor of the front passenger seat. A notebook found in a black bag on the rear passenger floorboard contained practice signatures for Rosey Rivera, written with an address matching that on two drivers licenses (exh. No. 31). Also in this notebook were writings starting with Hey baby and signed always and forever, Rosey. One of these contained statements including, Im really happy that Im in this with you. I trust you with my life and only you. I hope you see that Ill be by your side until the end no matter what.

The police also found in the car a clipboard with two notebooks. In one of these was a letter that read, Hey, lover. We walked to Walgreens, be right back. Love ya. Smiley face. x-o-x-o-x-o. Always and forever, Rosey. Another letter in this notebook read, Hey, babe, Im writing you this to let you know how grateful I am to have you in my life. I know you know how hard this has been for me, but I consider you my family now and I wouldnt . . . want to be doing this with anyone else. I hope you know that I plan on staying by your side through thick and thin until the end. In the other notebook was a writing with the name Jakob Cowin and what appeared to be an Alameda County Sheriffs Office personal file number (the number assigned to someone booked into the Alameda County Jail), followed by the address of the Santa Rita jail. This entry was followed by another number consistent with a personal file number and the name Ron. This notebook also contained letters concluding with thanks, always, Rosey and always and forever, Rosey. One of these read, Hey, Babe. Went to the pool because I needed to cool down. Come get me when you get here. Love you and x-o-x-o-x-o, thanks. Always, smiley face, Rosey. Another read, Hey, if you get here before I get back, I went down to the vending machine. Ill be right back and I might try to call you again. The phones are in the other buildings lobby. Okay, love you lots and see you soon, x-o-x-o-x-o-x-o-x-o. P.S. Good morning. Always and forever, Rosey, and a smiley face. Another, Hey, baby. Im just sitting here waiting for you to get back. I just tried to call you but you didnt answer. Im tired of being stuck here alone and I also have a funky feeling. I hope you make it home safely.

Defense

Treadaway presented no evidence. In closing argument, his attorney did not dispute Treadaways identity as the masked gunman, and acknowledged Treadaway assaulted the Rossi brothers, Derry and OCallaghan. He argued, however, that the evidence did not demonstrate Treadaway had the intent to commit robbery, to discharge the firearm or to kill, and but rather indicated Treadaway intended to protect himself or, more likely, the gun discharged accidentally during the struggle.

Logue testified that in July 2004, she was 19 years old and had a one-and-one-half-year-old daughter. She had known Jason Rossi for about five years and had dated him on and off. She used methamphetamine off and on. Logue had arranged to borrow Doug Youngs car to go to a doctors appointment on July 28. When she arrived at Youngs house, he told her Treadaway had the car. Logue had previously seen Treadaway at Youngs house a few times. Treadaway arrived at Youngs house and, when Young left the room, came over to Logue, put his hand on the wall above her shoulder and told her Jason has something of mine and I want it back and youre taking me there. Treadaway was standing very close to her and his demeanor was forceful, making Logue feel scared and threatened and obligated. She thought Treadaway would hurt her if she did not go with him.

After they left Youngs house, Logue pretended she did not know exactly which house was Jasons. Treadaway had her call Jason from a mini-market, standing behind her gripping her neck while she made the call. He then had her drive to Jasons house and drop him off at the corner, directing her to go into the house. Logue expected Treadaway to confront Jason about whatever it was that Jason had of Treadaways. Logue had not seen a gun or a mask in Treadaways possession and was not aware he had these items. Treadaway told her to see how many people were inside the house and give him a signal, but she did not do this.

Jason answered the door when Logue rang the bell, noticed Youngs car was still running, went with her to the car and did something under the hood to disconnect the engine. She did not think of telling Jason that Treadaway was around the corner; she was confused and scared and did not know what to do. They returned to the house, where Logue went to the family room and hugged Erick. As she stood next to Ericks chair, out of the corner of her eye Logue saw a person with a mask and gun running or walking fast from the hallway to the middle of the family room. Logue recognized the persons clothing as what Treadaway had been wearing. The man said something like, get on the ground. Jason ran in from the kitchen, jumped on Treadaways back and tackled him from behind. Erick got up and swung at the man. As Jason and the man wrestled, the gun fired. Logue did not see the gun pointed at anyone. She was in shock and felt she could not move. Derry ran over and kicked the man, then ran out of the family room, passing Logue at the beginning of the hallway by the family room and heading toward the front door. OCallaghan followed Derry. Logue was not standing by the front door at this point and was not smiling. Treadaway pointed the gun at her and said, Start the fucking car. Logue ran to the car, planning to take off without Treadaway, but he came out of nowhere, pushed her into the passenger seat, and drove off.

Treadaway drove to Niles Canyon, where Logue stood by the car while he asked a man to use his cell phone. Treadaway told Logue he would fucking kill her if she tried to leave or cause a scene. She believed him. Treadaway returned to the car, put his sweatshirt in the trunk, grabbed her arm and led her into the woods. At Treadaways direction, they climbed a tree, where Treadaway slept for some time. They then continued through the woods to the road. Logue made no attempt to get away because she believed Treadaway would kill her if she did. They walked to a trailer where they spent the rest of the night, then walked out of the canyon to a store where Treadaway made a phone call. A woman picked them up and took them to a motel in Hayward, where they spent a couple of days. Logue mostly slept and she did not remember Treadaway ever leaving her alone in the room. They stayed at other hotels in San Mateo or San Francisco, getting rides from people Treadaway knew and at the end driving the car they were in during the police chase. Treadaway threatened that if she tried to leave he would kill her and, if he could not find her, he would go after her family and her daughter. On a couple of occasions, Logue was left alone in a hotel but she did not try to get help because she was scared. Treadaway brought Logue food, changes of clothes and methamphetamine, which she used to help her cope with the situation and block[] out reality. Asked whether she ever had sexual intercourse with Treadaway, Logue responded, not willingly.

A couple of days before August 13, Logue objected when Treadaway told her they were leaving town, and he told her he should get rid of [her] and [her] mom should find [her] in a ditch somewhere dead. On August 13, Treadaway called a friend of Logues and asked her to bring Logue some clothes. Police arrived at the place they were supposed to meet. Treadaway drove away and into a ravine, where the car crashed into a tree and Treadaway got out and ran. Logue went to a nearby apartment complex, knocked on someones door, and had them call 911. Logue told the dispatcher, among other things, please dont let him find me and if anyone finds out that I was the one that said anything hell have people come after me. A portion of the 911 tape was played for the jury.

Police officers arrived and arrested Logue. Logue initially told the police she did not know whose car was used to go to the Rossi house because she did not want to get anyone involved who did not need to be involved. She later said the car belonged to Young, but said Treadaway borrowed it.

Logue testified that she did not go to the Rossi house freely and voluntarily, that she never intended to rob, assault or kill anyone there, and that she was not aware any crimes were going to be committed there. She denied having written any of the notes and letters in the notebooks found in the Grand Am except the letter to Ronnie. She testified that some of the contents of that letter were not true, including statements that about being kept in a dark room, not knowing where or with whom she was, and not eating. Logue testified that Ronnie was an ex-boyfriend who was incarcerated at the Santa Rita jail between July 28 and August 13. She acknowledged that his name was in one of the notebooks along with the address to the Santa Rita jail, though she said the handwriting was not hers, and said that Jakob Cowan, the other name written in this notebook, was a friend of Jasons. Logue acknowledged that there were similarities in characteristics of the writing on the letter to Ronnie and others she denied writing, such as happy faces, x-o-x-o-x-o notations, and symbols and letter is dotted with an x. She admitted having seen the drivers licenses found in the Grand Am and practicing Rosey Riveras signature, testifying that Treadaway wanted her to do this in order to rent hotel rooms and she was afraid to refuse. Logue acknowledged that she dyed her hair after the incident at the Rossi house.

DISCUSSION

I.

Logues defense at trial was that she did not willingly participate in the offenses or remain with Treadaway afterward, but rather was forced to accompany him. On this appeal, she contends the trial court violated her constitutional right to present a defense by excluding certain defense evidence. Specifically, she challenges the trial courts exclusion of expert testimony explaining the Stockholm Syndrome, evidence she was repeatedly raped by Treadaway, evidence that she suffered nightmares after the events at issue, and redaction of her call to 911. In a related petition for writ of habeas corpus, Logue argues she was denied effective assistance of counsel by her attorneys failure to exercise due diligence to obtain an expert witness qualified to testify regarding Stockholm Syndrome in time for trial.

A. Stockholm Syndrome

The Stockholm Syndrome has been described as a psychological phenomenon whereby a hostage develops positive feelings for his or her captor.  (U.S. v. Peralta (9th Cir. 1991) 941 F.2d 1003, 1009, fn. 1, quoting United States v. Chancey (11th Cir. 1983) 715 F.2d 543, 547.) Logues attorney sought to present expert testimony by Richard Ferry, a licensed marriage and family therapist, on this syndrome. At an Evidence Code section 402 hearing outside the presence of the jury, Ferry testified that in his private practice, he worked with domestic violence perpetrators and victims, including women who were oppressed or dominated, adults who were abused, neglected or molested as children, men dealing with issues of excess work, avoidance of intimacy and coping with loss, and children. Ferry explained that the Stockholm Syndrome is a form of traumatic bonding with four known applications: hostage situations, cults, battered women, and abused children. Ferry stated that one of the key ingredients in both battered womens syndrome and Stockholm Syndrome is the presence of a threat or perceived threat of violence, injury or death to the victim or her family. Stockholm Syndrome differs from battered womens syndrome in that it involves no prior relationship, but rather rapid onset of the connection between the hostage takers and the hostage.

The trial court initially stated its intention to permit Ferrys testimony, noting that Logues attorney wanted to use it to explain why Logue did not try to escape from Treadaway and why she would have written the letters to him that the prosecutor attributed to her. The court changed its mind, however, after Ferry testified on voir dire that he had expertise in treating women who had been forced to do things they did not want to do in the context of domestic violence in an ongoing relationship, and had worked with 20 or 30 people who had been victims of stranger assaults or robberies, but none of these cases involved someone being forced to go somewhere against their will. The trial court ruled that Ferry did not have the qualifications to testify as an expert in the case.

In closing argument, Logues attorney told the jury, theres all kinds of different theories about what happens either to people that are hostages or in a situation where they feel that theyre intimidated, frightened and warned if they try to leave or escape, theyre going to be killed. Counsel mentioned Jews who became friendly with their Nazi captors as the only way they felt they could survive, and spoke about a thing called a Stockholm Syndrome thats known to psychologists based on hostages taken in a robbery who, after a number of days, became friendly with the captors to the point that they were permitted to go into another room without being watched. Counsel stated that these kinds of things happen to somebody that is subject to the whim and will of a more dominating individual, and that although it appeared Logue stayed with Treadaway for two weeks despite opportunities for escape, she had been so frightened and intimidated by him that she feared for herself and her family if she left.

The prosecutor, in turn, told the jury that there was no expert testimony or other evidence about the Stockholm Syndrome in the case and that Logue had not claimed she fell in love with Treadaway and offered expert testimony to explain how this resulted from the Stockholm Syndrome, but only testified that she was forced to participate and afraid to run away.

A trial courts decision to admit or exclude evidence is reviewable for abuse of discretion. (People v. Vieira (2005) 35 Cal.4th 264, 292; People v. Avila(2006) 38 Cal.4th 491, 578.) A trial courts determination of whether a witness qualifies as an expert is also a matter of discretion. (People v. Bolin (1998) 18 Cal.4th 297, 321-322; People v. Panah (2005) 35 Cal.4th 395, 478.) Here, the proposed expert witnesss experience with people being forced to act against their will was in the context of an ongoing relationship; his experience with people who had been victims of crime by strangers involved assaults and robberies, but nothing like the circumstances Logue described. The trial court did not abuse its discretion in determining Ferry was not qualified to testify as an expert on the Stockholm Syndrome in this case.

In her petition for writ of habeas corpus, Logue argues that her trial attorneys failure to offer a qualified expert witness on the Stockholm Syndrome constituted ineffective assistance of counsel. She points out that at the sentencing hearing, when her attorney called licensed marriage family therapist Linda Barnard to testify on this subject, the prosecutor offered to stipulate to Barnards qualifications as an expert in psychology and stated he had no objection to her testifying about the Stockholm Syndrome. Barnard then testified that Stockholm Syndrome is a response of a victim to a trauma, a coping response when the person feels like theyre a captive and they perceive theres no way for them to escape. The elements of the syndrome are a perceived threat from the captor, which the victim perceives could be carried out; small kindnesses done by the captor for the victim; isolation of the victim from opinions other than the captors; and a perceived inability to escape.

Barnard stated that one of the biggest misconceptions about Stockholm Syndrome is that the victim chooses to be in the situation, whereas in fact the level of fear and threat that the person experiences actually renders them incapacitated to try to leave even though it seems to someone outside that she should be able to do so. In the Stockholm Syndrome, victims feelings about their captors become confused, and their thoughts and emotions become distorted, so they feel they are at the mercy of the captor and their own desires, their wishes have no impact and they become unable to make choices they would have been able to make in ordinary life. In the original case for which the syndrome is named, one of the captives later married one of the captors; Barnes explained that [b]ecause the relationship is so intense during the captive time, theres a bonding that occurs between those two people thats not what happens in a normal, natural situation . . . . Barnes testified that it was not unusual, with this syndrome, to see letters from the victims that seem positive toward their captors and letters exaggerating the situation due to guilt because the victim does not know what to do.

Barnes, who had interviewed Logue and reviewed records in the case, testified that Logues description of the events met the criteria for Stockholm Syndrome, including witnessing the shooting, being repeatedly subjected to threats against herself or her family, being raped, believing she had no way to escape, and becoming dependent on Treadaway for food and shelter. Barnes suggested Logue would have believed she could not escape because if she did, Treadaway would find her and harm her or her family, and that the letters attributed to Logue could reflect an attempt to placate him. Barnes believed Logue experienced the syndrome, felt this conclusion was confirmed by the 911 tape and the level of fear and hysteria it reflected, and stated that the nightmares and sleep problems Logue subsequently experienced were consistent with having been a victim of Stockholm Syndrome. In response to a question from the court, Barnes stated that the shortest documented time period leading to a case of Stockholm Syndrome was six to eight hours.

In support of her habeas petition, Logue submits a declaration from her trial counsel. Trial counsel states that prior to trial he intended to base the defense on Logues testimony, corroborated by her stepmothers testimony about Logues behavior after her arrest, the 911 tape, and Logues statement to the police. Counsel felt Logue was a believable witness. During trial, after the court held Logues stepmothers testimony inadmissible, permitted only a portion of the 911 tape and police statement, and ruled defense evidence inadmissible because of its potential to prejudice Treadaway, counsel considered presenting a defense based on Stockholm Syndrome. At first, after researching the issue, counsel was not convinced in my own mind that this evidence would be relevant or admissible because it primarily involved facts that occurred after the crimes in the Rossi home. Trial counsel then came to believe a jury would be able to understand Logues state of mind if a psychologist explained the effects of Stockholm Syndrome on hostages. He waited to see how the trial would develop, however, before attempting to locate experts. When he did look, only a few weeks of trial remained and he was unable to find an expert available on short notice. Dr. Barnard recommended Ferry, but the trial court did not qualify Ferry as an expert. Trial counsel stated that he should have arranged earlier for Barnard, or another equally qualified expert, to testify at trial in order to corroborate Logues testimony and explain the effects of Stockholm Syndrome, and that there was no tactical or strategic reason for his failure to do so.^[3]

 [I]n order to demonstrate ineffective assistance of counsel, a defendant must first show counsels performance was deficient because his representation fell below an objective standard of reasonableness . . . under prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 687-688; [People v.] Ledesma [(1987)] 43 Cal. 3d [171,] 215-216.) Second, he must also show prejudice flowing from counsels performance or lack thereof. (Strickland, supra, at pp. 691-692; Ledesma, supra, at pp. 217-218.) Prejudice is shown when there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (In re Sixto (1989) 48 Cal.3d 1247, 1257; Strickland, supra, at p. 694.) (People v. Jennings (1991) 53 Cal.3d 334, 357.) (In re Avena (1996) 12 Cal.4th 694, 721.)

 Reviewing courts defer to counsels reasonable tactical decisions in examining a claim of ineffective assistance of counsel (see People v. Wright (1990) 52 Cal.3d 367, 412), and there is a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance.  (People v. Lucas (1995) 12 Cal.4th 415, 436-437, quoting Strickland v. Washington, supra, 466 U.S. at p. 689.) [W]e accord great deference to counsels tactical decisions (People v. Frye (1998) 18 Cal.4th 894, 979), and we have explained that courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight (People v. Scott (1997) 15 Cal.4th 1188, 1212). Tactical errors are generally not deemed reversible, and counsels decisionmaking must be evaluated in the context of the available facts. (People v. Bolin [, supra,] 18 Cal.4th 297, 333.) (People v. Weaver (2001) 26 Cal.4th 876, 925-926.)

 [I]n evaluating defendants showing [a court accords] great deference to the tactical decisions of trial counsel in order to avoid second-guessing counsels tactics and chilling vigorous advocacy by tempting counsel to defend himself or herself against a claim of ineffective assistance after trial rather than to defend his or her client against criminal charges at trial. . . .   (In re Fields [(1990)] 51 Cal.3d 1063, 1069-1070, quoting In re Cordero (1988) 46 Cal.3d 161, 180, and People v. Ledesma, supra, 43 Cal.3d at p. 216.)  However, deferential scrutiny of counsels performance is limited in extent and indeed in certain cases may be altogether unjustified. [D]eference is not abdication [citation]; it must never be used to insulate counsels performance from meaningful scrutiny and thereby automatically validate challenged acts or omissions.   (51 Cal.3d at p. 1070; see also People v. Karis (1988) 46 Cal.3d 612, 621.) Finally, we note that a criminal defendant can reasonably expect that before counsel undertakes to act at all he will make a rational and informed decision on strategy and tactics founded on adequate investigation and preparation. (People v. Ledesma, supra, 43 Cal.3d at p. 215.) (In re Avena, supra, 12 Cal.4th at p. 722.)

Logue relies heavily upon Paine v. Massie (10th Cir. 2003) 339 F.3d 1194, which found ineffective assistance of counsel where the trial attorney failed to offer expert testimony on Battered Woman Syndrome (BWS) despite the fact that the defendant was a battered woman relying on a theory of self defense. Paine viewed such expert testimony as necessary to equip the jury to properly assess the reasonableness of [the defendants] fear and concluded that the absence of expert testimony effectively eviscerated the only defense offered. (Id. at p. 1204.)

Here, Logues defense at trial was duress: She testified that Treadaway forced her to participate in the offenses by threatening her and her family, and that she remained with him after the offenses for the same reason. To bolster her testimony, she offered evidence of her emotional state during the 911 call, her police statement, and afterwards. The prosecutor argued, in closing, that Logues willing participation in the offenses was demonstrated, in part, by her staying with Treadaway for so long, by the entries in the notebooks that appeared to reflect a voluntary relationship with him, and by Logue falsely disavowing having written these notes.

Logue sought to use evidence of the effects of Stockholm Syndrome to counter the prosecutions argument that her conduct after the offenses indicated her state of mind during the offenses was one of willing participation. The point of the evidence was not to demonstrate that Logue acted under the influence of the syndrome during the commission of the offenses, but to give the jury an explanation for her subsequent conduct that would be consistent with her defense of duress. Whereas the prosecution used the post-crime conduct evidence to argue Logue intended to help Treadaway all along, Logue wanted the jury to view her as a victim and, therefore, to explain the evidence that tended to paint her as a willing partner.

The trial courts comments at sentencing about the Stockholm Syndrome evidence being irrelevant misunderstood this aspect of the case. The court viewed the evidence as irrelevant because there was insufficient time before the commission of the offenses for the syndrome to come into play. The court did not view the evidence as bearing on the jurys evaluation of Logues state of mind during the offenses as explained above.

This does not mean, however, that Logue has demonstrated ineffective assistance of counsel. Trial counsel stated in his declaration that he at first intended to present only a duress defense and that even when he began to consider Stockholm Syndrome, he at first considered it potentially irrelevant or inadmissible because it primarily involved facts that occurred after the crimes in the Rossi home. Given the facts of this case, this view does not appear unreasonable. In any event, whatever the merit of this assessment, it was plainly a tactical decision. (See People v. Bolin, supra, 18 Cal.4th at pp. 334-335.) The same is true of counsels decision to see how trial developed before attempting to locate an expert witness. Trial counsel stated in his declaration, [a]s it turned out, this proved to be a bad decision, and stated that he had no strategic or tactical reason for failing to arrange for Dr. Barnards testimony sooner. Counsels post hoc view, however, is not dispositive. (See Hendricks v. Calderon (1995) 70 F.3d 1032, 1038; People v. Felix (1994) 23 Cal.App.4th 1385, 1400.) The decision to focus on a duress defense may appear to have been a poor one in hindsight, but hindsight is not the appropriate test. (People v. Weaver, supra, 26 Cal.4th at p. 926.) Additionally, Logue can only speculate that Barnard would have been available to testify at trial if trial counsel had contacted her earlier.

Finally, even if trial counsels conduct could be viewed as deficient, Logue has not demonstrated a reasonable probability the outcome of the trial would have been different if expert testimony on the Stockholm Syndrome had been presented. The value of the testimony, as we have stated, would have been to persuade the jury Logue did not remain with Treadaway after the offenses voluntarily and, therefore, to undermine the inference from her postoffense conduct that she collaborated with Treadaway in committing the offenses. The syndrome evidence, however, would have done nothing to save Logue, in the jurys eyes, from the effect of contradictions between her account of the offenses and that supplied by other witnesses and evidence.

Such contradictions abound. While Logue described an initial scene in which Treadaway secured her cooperation by threatening her while they were both inside Youngs house, Young testified that he gave Logue the keys to his car while they were outside walking to where the car was parked, and that Treadaway joined Logue in the car after she was already in it and driving away. Logue testified that she was in the family room during the shooting, while Erick, Derry and OCallaghan testified she had left the room before the gunman entered. Logue testified that she was standing in the hallway when Derry and OCallaghan ran out of the house and denied she was standing by the front door or smiling. Derry and OCallaghan testified that as they left the house they saw Logue standing by the front door smiling; OCallaghan testified that she stopped to give Logue a chance to leave before her, but Logue remained in the house. Logue testified that after the shooting she ran to the car, planning to leave without Treadaway, but Treadaway appeared and pushed her into the passenger seat. Erick, however, testified that from his window he saw Logue sitting in the passenger seat of the car before Treadaway got to it, and saw Treadaway reach under the hood before getting into the car. Since the car could not have been started without reconnecting the wires Jason had disconnected, Ericks testimony contradicted Logues suggestion that she was ready to drive away without Treadaway.

Additionally, the jury could only have concluded that Logue lied in the letter she admitted writing to Ronnie when she described being locked in a closet by a man who always wore a mask; the evidence showed that the mask was found in the car appellants abandoned at Niles Canyon. Moreover, Logues denial that she wrote the notebook entries other than that letter undermined any reliance on the Stockholm Syndrome: Had the notes been written under the effect of the syndrome, Logue would have admitted her authorship but tried to explain it. Logues testimony was simply that she was afraid of Treadaway and acted as she did, during and after the offenses, out of fear for herself and her family.

In short, the absence of expert testimony on the Stockholm Syndrome did not eviscerate Logues defense that she acted under duress. At best, that evidence might have suggested a view of her postoffense conduct consistent with her defense. The many contradictions between Logues account of the events and those of the other witnesses, however, make it highly unlikely the jury would have believed Logue even if the syndrome evidence had been presented.

B. Rape by Treadaway

Logue also challenges the trial courts exclusion of evidence that Treadaway raped her during the period she spent with him. On direct examination, Logue was asked whether she had sexual intercourse with Treadaway and responded, not willingly. Treadaways attorney objected and, in discussions outside the presence of the jury, argued this testimony was unduly prejudicial to his client and asked the court to sever the trials and grant a mistrial as to Treadaway. When Logues attorney said he would withdraw the question, Treadaways maintained this would make matters even worse, because the jury had heard the question and answer. The court noted that in a videotaped interview with the police, Logue denied there was any sexual activity with Treadaway, so that the substance of the testimony came as a surprise. The court denied the motions for severance and mistrial, but warned it was inclined to grant such a motion if something explosive or unexpected pops up again.

Subsequently, on redirect, after eliciting Logues testimony that her fear of Treadaway never went away while she was with him, her attorney asked whether Treadaway did anything else that really upset you and frightened you, and the court sustained Treadaways attorneys objection. The court also sustained objections to the next two questions, whether Logue ever had sex with Treadaway and whether she ever had unwanted sex with him. Outside the presence of the jury, Treadaways attorney again moved for a mistrial, arguing Logues attorney had asked three improper questions and the fact the court sustained objections to the questions reinforce[ed] the possibility that there had been sexual misconduct between Treadaway and Logue. The court denied the motion. Logues attorney stated that he should have been allowed to go into whether she was raped, but did not move for a mistrial or other relief.

Logue argues her testimony that Treadaway raped her was directly relevant to her state of mind (regardless of whether he in fact did so) and supported her defense that she acted under duress or effect of the Stockholm Syndrome. She relies upon Greene v. Lambert (9th Cir. 2002) 288 F.3d 1081, which granted habeas corpus relief based on a trial courts refusal to permit testimony from the defendant and the victim, his therapist, that the victim suffered from multiple personality disorder. The defendant sought to rely on a defense of insanity or diminished capacity and the therapist would have testified that the assault was committed by an alter who was a child less than seven years old. (Id. at pp. 1084-1085.) State courts had concluded that although the disorder was generally accepted in the scientific community, the evidence was not admissible in this case because it would not have been helpful to the trier of fact. (Id. at p. 1085.) Applying the rule that exclusion of evidence is  unconstitutionally arbitrary or disproportionate only where it has infringed upon a weighty interest of the accused  (id. at p. 1090), Greene held that the Federal Constitution affords [the defendant] an opportunity to present his own testimony and that of the victim concerning his state of mind at the time of the attack. (Id. at p. 1093.)

The exclusion of further testimony that Treadaway raped Logue does not rise to the same level as what occurred in Greene. There, the preclusion of testimony effectively prevented the defendant from presenting his defense. Here, at most, the testimony might have added weight to a defense Logue was able to put forward.

The trial court was presented with a dilemma, because testimony that Treadaway raped Logue, quite obviously, would be prejudicial to Treadaway. In fact, the jury was not prevented from considering Logues testimony that she did not willingly have sex with Treadaway; counsel for Treadaway and the prosecutor did not want to further highlight the issue by having Logues attorney withdraw the question or the court strike Logues answer. In light of the potential for prejudice to Treadaway, we cannot find the court abused its discretion in refusing to permit further questioning along this line. Additionally, we are not persuaded that the exclusion of further rape testimony prejudiced Logue. While such testimony would have added to the picture of duress upon which Logues defense was based, Logue testified repeatedly about her fear of Treadaway and his threats to kill her or her family. The jury did not believe her testimony. There is no reason it would have been more likely to accept her defense if it had heard her testify further that Treadaway raped her during the weeks following the offenses.

C. Evidence of Nightmares

Logue was also precluded from presenting testimony by her mother that Logue suffered from nightmares after she was released on bail. The court found the proposed testimony irrelevant and speculative, explaining that there had been no expert testimony linking the evidence to the case and for all I know she could be worried about . . . spending a long time in prison, there could be other reasons why shes upset or having these nightmares or crying . . . . Logues attorney moved for a mistrial, which the court denied. At sentencing, Logues mother testified that when Logue came to live with her in December, she witnessed Logue having night terrors: She would cry out in her sleep, wake up shaking, scared to death. She was afraid to be alone. She was traumatized by this whole thing and in particular by Eric Treadaway.

Logue sought to present this evidence as corroboration of the testimony she wanted to present regarding the Stockholm defense and Treadaway raping her. As the trial court pointed out, however, the significance of the evidence was highly speculative. Logues mother could not address the substance of Logues nightmares; she could only describe what she saw of Logues reaction to them. No evidence was offered to explain what the nightmares might mean and whether they related to Logues experiences with Treadaway, as her mother inferred, or something else, such as the fear of prison the trial court postulated. The court did not abuse its discretion in excluding this evidence.

D. Redaction of 911 tape

Another evidentiary ruling Logue challenges is the redaction of the tape of her call to 911. The prosecutor and Treadaways attorney objected that portions of the tape did not meet the requirements for the excited utterance exception to the hearsay rule because they did not concern the immediately preceding car chase and crash but rather the events on July 28 and during the ensuing two-week period. The prosecutor sought to have the entire tape excluded, arguing that any relevance of Logues description of the chase was outweighed by the undue consumption of time it would require to redact other portions of the tape. Additionally, Treadaways attorney argued that the transcripts Logues attorney proposed to give to the jury contained editorial comments and conclusions of the transcriber that would be inappropriate for the jury, such as victim can be heard pleading for help. Sounds nearly hysterical. The trial court ultimately permitted the jury to hear a redacted version of the tape corresponding to the first six pages of the transcript, without giving the jury the transcript. In the portion of the tape played for the jury, an audibly distraught Logue told the operator about the police chase and car crash, answered questions about where the crash occurred and who was involved, and expressed fear about Treadaway finding out she had called. In the portion not played for the jury, Logue additionally talked about the shooting and about Treadaway keeping her with him since the shooting.

At the hearing on Logues motion for a new trial, her attorney argued it was unfair that the jury did not hear the whole 911 tape, which actually showed how hysterical and upset she was and how fearful she was of Treadaway; certainly not somebody that would have been involved in the planning and participation in the robbery. Logues argument is that the redacted tape played for the jury did not accurately portray the degree of her hysteria when she finally escaped from Treadaway, thereby preventing her from presenting her entire defense.

The trial court did not abuse its discretion. While the portion of the tape not played for the jury reflected a high degree of distress on Logues part, the portion that was played made her distress apparent. The courts ruling did not prevent Logue from presenting her defense.

E. Cumulative prejudice

Logue argues that even if each of the allegedly erroneous evidentiary rulings was harmless on its own, together they served to gut her defense and therefore require reversal of her convictions. As discussed above, we disagree with Logues contention that the trial courts exclusion of the evidence was erroneous. Logue presented a defense based on duress: She testified about the threats appellant made and about her fear of him, and the portion of the 911 call the jury heard reflected significant distress.   As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accuseds right to present a