P. v. Warrick





















Filed 12/31/12 P. v. Warrick CA1/5

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 FIVE








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>THE PEOPLE, > Plaintiff and Respondent, >v. >DIANE CHERYL WARRICK, > Defendant and Appellant.

A131787 (Contra Costa County Super. Ct. No. 51013895)

Diane Cheryl Warrick appeals from
her conviction of second degree murder. (Pen. Code, §§ 187, 189.)href="#_ftn1" name="_ftnref1" title="">[1] She contends the lawyer who defended her at
trial rendered ineffective assistance of counsel by making offensive and
insensitive remarks during closing argument.
In her closing, defense counsel quoted from William Shakespeare’s play, >The Merchant of Venice, and she
repeatedly referred to the character Shylock as “the Jew.” Warrick argues that her counsel’s language
must have offended the jury and undermined counsel’s credibility as an
advocate.

We conclude Warrick has failed to
establish she was prejudiced by defense counsel’s comments. Accordingly, we reject her claim of
ineffective assistance of counsel and affirm her conviction.

Factual
and Procedural Background

Because Warrick’s only claim of error
on appeal is that her trial counsel
rendered ineffective assistance in making her closing argument, the details of
the crime are not relevant for our purposes.
We therefore set them forth in abbreviated fashion.

Warrick was charged with the
June 23, 2010 murder of Mary Jane Theresa Scanlon. Scanlon, who at the time of her death was 70
years old and confined to a wheelchair, had hired Warrick in late 2009 to serve
as her caregiver. Warrick moved into
Scanlon’s residence three months after being hired.

On June 23, 2010, Scanlon’s
friend and next-door neighbor made her daily visit to Scanlon’s home. The neighbor later discovered Scanlon’s dead
body lying on the floor. An autopsy
revealed that the cause of death was multiple stab wounds. Warrick testified at trial and admitted she
had stabbed Scanlon to death.

At Warrick’s trial, near the end of
her closing argument, Warrick’s trial counselhref="#_ftn2" name="_ftnref2" title="">>[2]
made the following statements to the jury:

“I want to digress for a
second. I love Shakespeare. I don’t know about any of you, but I love
Shakespeare. And probably one of my all
time heroines is Portia in [The] >Merchant of Venice. And Portia has a well-known speech about
mercy.

“If you recall the story of [>The] Merchant
of Venice, there was a merchant of Venice—well, there was a Jew, who was a
money lender. And there was a merchant
who entered into a contract with this money lender and then defaulted on the
contract. And back then the terms of the
contract were if the merchant defaulted, then the Jew could get a pound of
flesh.

“Portia is giving this speech to the
Jew about mercy and justice.

“‘The quality of mercy is not
strain’d. It droppeth as the gentle rain
from heaven upon the place beneath: it is twice bless’d; it blesseth him that
gives and him that takes.’”

“And then I’m going to skip a little
bit.

“‘Where mercy seasons justice. Therefore, Jew, though justice be thy plea,
consider this, that in the course of justice we all must see salvation: we all
do pray for mercy; and that same prayer, doth teach us all to render the deeds
of mercy. I spoke thus much to mitigate
the justice of thy plea; which if thou follow, this strict court of Venice must
needs give sentence against the merchant there.’”

“Then it goes on, because the terms
of that contract said that the Jew could get a pound of flesh. It didn’t say how he was going to get the
pound of flesh. So Portia says, Well,
you can take a pound of flesh but not one bit more. And guess what? Your contract doesn’t say that you can draw
any blood. So, you can take your pound
of flesh, Mr. Jew, but you can’t draw any blood to get the pound of flesh. And she goes on in that vein.

“Ultimately the Jew says, You know
what? I’ll just take the money. I don’t want my pound of flesh.

“And the moral of the story here is
exactly that, ladies and gentlemen. The
prosecution wants that pound of flesh and then some. He wants the first-degree murder. But you, as jurors, have to decide what’s
right in this case based on the evidence.
And what’s right in this case, based on the evidence, is that Ms.
Warrick should be found guilty of voluntary manslaughter.”

Outside of the presence of the jury,
the trial court expressed concern about defense counsel’s argument. The trial judge explained that counsel’s
repeated references to the character of Shylock, the money lender in
Shakespeare’s play, as “the Jew” had made the court uncomfortable. Although the court noted it did not mean to
suggest that defense counsel’s remarks were intended to be anti-Semitic, it
informed counsel, “I think I have an obligation to, under the ethical rules of
my court, to not let it pass without some kind of comment.” The court stated, “I just feel like it can’t
happen in my courtroom that there be some suggestion that the judge is okay
with anyone making what could be considered [an] anti-Semitic reference.”

Before the prosecutor’s rebuttal
argument, the trial court admonished the jury as follows:

“One of the hazards of quoting 16th
century literature is that we sometimes can use language that the writer, in
this case Shakespeare, may have used that is perhaps offensive to 21st century
sensibilities. And I know [defense
counsel] was not intending in any way to offend anyone by describing one of the
characters in [The] >Merchant of Venice – I’m a Shakespeare
fan myself; know the play well. I just
wanted to make sure that everyone understood that [defense counsel] did not
intend, and I certainly did not intend to countenance any derogatory statement
based on religion in my courtroom. I
don’t think that was the intention. I
hope that was not the effect.
[¶] But I just want to make sure that the jurors are not distracted
by language used in the argument from the merits of the argument that [defense
counsel] was making because Shakespeare may have been less than sensitive.”

On March 14, 2011, the jury
convicted Warrick of second degree murder.
Warrick was sentenced to an indeterminate term of 31 years to life. She filed a timely appeal on April 8,
2011.

Discussion

Warrick’s sole claim on appeal is
that “[b]y making comments during her closing statement that were sufficiently
offensive and insensitive to require an admonition from the court, counsel
failed to provide appellant with the effective assistance of counsel[.]” We disagree.

I. Standard of Review

On appeal, it is Warrick’s burden to
demonstrate, by a preponderance of the
evidence, that she is entitled to relief on the grounds of ineffective
assistance of counsel. (E.g., >People v. Ledesma (1987) 43 Cal.3d 171,
217-218.) To do so, she must show that:
(1) her counsel’s performance fell below an objective standard of
reasonableness under prevailing professional norms and (2) she was prejudiced
by the deficient performance. (>People v. Lucas (1995) 12 Cal.4th 415,
436.) It is difficult to carry this
burden on direct appeal from a conviction (id.
at p. 437), because the trial record often does not indicate why trial
counsel acted or failed to act in the manner she did. (See People
v. Mendoza Tello (1997) 15 Cal.4th 264, 266-268.) And we may not reverse a conviction on the
grounds of ineffective assistance of counsel unless the record affirmatively
discloses that counsel had no rational tactical purpose for the act or omission
in question. (People v. Jones (2003) 29 Cal.4th 1229, 1254.) Where the record sheds no light on the issue,
we must affirm unless there could be no conceivable reason for counsel’s act or
omission. (Ibid.) Furthermore, our
review of trial counsel’s performance is deferential (People v. Ledesma, supra, 43 Cal.3d at p. 216), and there is a
strong presumption that counsel’s actions fell within the wide range of
reasonable professional assistance. (>People v. Lucas, supra, 12 Cal.4th at
p. 437.)

We need not determine whether
counsel’s performance was deficient if Warrick is unable to show
prejudice. (See, e.g., >People v. Seaton (2001) 26 Cal.4th 598,
666.) To establish that she was
prejudiced by her counsel’s allegedly deficient performance, Warrick must show
“a reasonable probability that, but for counsel’s failings, the result of the
proceeding would have been more favorable to [her].” (Ibid.) In other words, we ask “‘whether counsel’s
conduct so undermined the proper functioning of the adversarial process that
the trial cannot be relied on as having produced a just result.’ [Citation.]”
(In re Cudjo (1999) 20 Cal.4th
673, 687.)

II. >Warrick Has Failed to Demonstrate She Was
Prejudiced by Counsel’s Allegedly Deficient Performance.

Warrick’s opening brief does not
articulate precisely how she may have been prejudiced by her trial counsel’s
argument.href="#_ftn3" name="_ftnref3" title="">[3] She agrees the trial court was correct to
admonish the jury her counsel “had stepped over the line” in closing argument. But Warrick contends her trial counsel
“engaged in offensive speech that almost certainly upset jurors >and she [trial counsel] was then the
subject of what must have been perceived as a scolding by the trial
judge.” We cannot agree.

Warrick has pointed to nothing in
the record demonstrating she was prejudiced.
There is nothing in the transcript of the trial suggesting the jurors
were offended or angered by counsel’s statements. Indeed, during the discussion between court
and counsel that followed defense counsel’s closing argument, the prosecutor
noted that he “didn’t see any looks from the jurors that expressed
frustration,” and he “didn’t see any visible signs of offense.” Moreover, the trial judge admonished the jury
that defense counsel did not intend—and the trial court would not
countenance—any derogatory comments based on religion. We must presume the jury heeded this
admonition. (Cf. People v. Tully (2012) 54 Cal.4th 952, 1020 [jury presumed to have
followed instruction to disregard portion of prosecutor’s closing argument].)

Warrick argues that the length of
the jury deliberations is significant here, although she does not explain
why. While she does not say so
explicitly, we can only presume she means that the length of the deliberations
demonstrates the jury was having a difficult time deciding whether she acted in
the “heat of passion” and was debating
whether it should convict her of murder under section 187 or of the lesser
included offense voluntary manslaughter under section 192. As the People point out, however, Warrick
“ignores the equally likely possibility that the jury wavered between
conviction of first and second degree murder, and was swayed to acquit her of
the former offense by trial counsel’s argument for mercy.” Thus, we cannot conclude from the length of
the jury’s deliberations alone that Warrick was somehow prejudiced by her trial
counsel’s argument.

We also see no basis for Warrick’s
claim that her counsel’s credibility was damaged by the trial judge’s so-called
“scolding.” The trial judge was careful
to raise the issue of counsel’s remarks outside
of the jury’s presence. The court then
sought counsel’s views on how best to deal with the issue, and both defense
counsel and the prosecutor addressed the matter on the record. In the end, the trial court carefully
admonished the jury, explaining that defense counsel did not intend to make any
derogatory statement based on religion and asking the jurors not to be
distracted from the merits of the defense argument merely “because Shakespeare
may have been less than sensitive.” Far
from scolding defense counsel, the trial court went out of its way to assure
the jury that, by quoting Shakespeare, counsel had not intended to make any
kind of offensive statement. The court’s
admonition made clear that any insensitivity in counsel’s remarks was
attributable to the Bard rather than defense counsel.

We conclude Warrick has failed to
show her trial counsel’s remarks prejudiced her. Consequently, her claim of ineffective assistance
of counsel fails.href="#_ftn4" name="_ftnref4"
title="">[4]

Disposition

The judgment is
affirmed.









_________________________

Jones,
P.J.





We concur:



_________________________

Simons, J.



_________________________

Needham, J.