P. v. Wilkinson

Filed 9/22/08 P. v. Wilkinson CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Madera County. Jennifer R.S. Detjen, Judge.

Robert Derham, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Janine R. Busch, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Juan Thomas Wilkinson was convicted of attempted voluntary manslaughter and various other crimes after he stabbed his friend in the neck. On appeal, he contends (1) defense counsel provided ineffective assistance by arguing an unconsciousness defense, upon which the jury was not instructed, and expressly withdrawing a voluntary intoxication defense, upon which the jury was instructed, and (2) the trial court erred by failing to instruct sua sponte on the defense of unconsciousness. We will affirm.

PROCEDURAL SUMMARY

On July 30, 2007, the Madera County District Attorney charged defendant in an amended information with attempted murder (Pen. Code,  664, 187, subd. (a);^[1]count 1); assault with force likely to cause great bodily injury ( 245, subd. (a)(1); count 2); unlawful possession of drug paraphernalia (Health & Saf. Code,  11364, subd. (a); count 3); and resisting arrest ( 148, subd. (a)(1); count 4). As to count 1, the information also alleged that defendant personally used a deadly weapon ( 12022, subd. (b)(1)). As to counts 1 and 2, the information alleged that defendant personally inflicted great bodily injury ( 12022.7, subd. (a)) and that he had served three prior prison terms ( 667.5, subd. (b)).

On count 1, a jury found defendant not guilty of attempted murder, but guilty of the lesser offense of attempted voluntary manslaughter. The jury found defendant guilty as charged on the other counts and found the special allegations true. The trial court found the prior prison term allegations true.

The trial court sentenced defendant to prison for 12 years 6 months.

FACTS

On the evening of January 30, 2007, Donnie Cribbs was in his second-floor apartment in Madera. He had gotten up early to go recycling, then had been drinking since about 11:00 a.m. Ernie, who rented Donnies garage, had left around 7:00 a.m. and had not come back that day. Rick, who rented a room from Donnie, had also left in the morning to go recycling.

Early in the evening, at about 7:00 or 8:00 p.m., Domingo came by and asked Donnie if defendant had been there. Domingo said, Oh. Well, I just wanted to make sure that he wasnt going to mess with you. Then Domingo left.

Later, Donnie and another friend were drinking and listening to music. Donnie ran out of beer and his friend left. Donnie had a knife on the arm of his couch because he was cutting and eating lemons.

Just before 10:00 p.m., defendant opened the door and entered with a half-gallon bottle of Jim Beam whiskey. Defendant said, Hey, whats up, Donnie? I got a bottle of Jim Beam. I stole it from [Longs]. Defendant was very friendly, just as he was on any other day. Defendant was one of Donnies best friends. Donnie was good to him and sometimes let him stay at his apartment. Donnie noticed that defendant smelled of methamphetamine. Donnie thought defendant was intoxicated and high. He described defendant as pretty wasted that night, and acting really cool. Defendant leaned forward slightly when he walked in the door. His eyes were baggy and his mouth was slack. Donnie thought he was definitely loaded.

Defendant gave Donnie a few shots of his whiskey. Defendant asked Donnie if he had $2 so he could buy himself some drugs. Donnie refused, saying, I aint got it. And furthermore, I wouldnt give you money for stuff like that.

They drank and conversed for about 20 minutes. They talked, joked and laughed. Even though defendant was under the influence, he was able to function, understand and converse. He did not lose his balance or fall down.

Then defendant went into the kitchen to get a glass of water to chase his whiskey. They had drunk very little of the whiskey. When defendant returned, he came up from behind Donnie with the knife, put his arm around Donnies throat and stabbed him repeatedly in the neck and chin. When Donnie tried to reach behind and get the knife away, defendant sliced his wrist and told him, Youre -- youre already dead, Donnie. Then he stabbed Donnie again. Donnie was not able to defend himself at all. He could not move or bend because of the way defendant was holding him.

Donnie was afraid and he knew that if he stayed in the apartment, defendant would kill him. He knew he needed to get outside where he might find a witness. But defendant kept his arm around Donnie and would not let go. Nevertheless, Donnie left the apartment with defendant holding onto him. Donnie went down the stairs, dragging defendant with him, until he reached the apartment window of Brenda, the apartment manager. Defendant still had Donnie in a chokehold with his body pressed up to him. Donnie tried to yell for help at the window, but the air was escaping through his stab wounds. When he tried to say, Help, Brenda, Brendas husband, Gustavo, turned around and saw them. At that moment, defendant froze and dropped the knife. Defendant had a cold, evil look in his eyes, as though he was going to kill someone and Donnie was lucky to get away. Defendant took off down the alley.

According to Bibiana, Brenda and Gustavos 12-year-old daughter, she came into the apartments living room where Gustavo was watching television. Brenda was washing dishes. Bibiana saw Donnie pushed up against their apartment window with defendant behind him. Donnie yelled Brendas name two or three times. His hand smeared blood on the window. After about three seconds, Donnie fell onto the grass in front of the apartment and defendant got on top of him and struck him two or three times. Bibiana could see them through the security screen door, but it was too dark for her to tell whether defendant had anything in his hand. Bibiana thought defendant looked angry and fierce; he did not want to stop attacking Donnie. But when Gustavo opened the door, defendant ran away. Brenda called the police. Donnie was holding his neck and coughing up blood.

Gustavo remembered that he was watching television when he heard an argument outside. He heard someone say something like, Leave me alone, and help. Gustavo opened the door but left the security screen door locked. Gustavo saw Donnie and defendant, one in front of the other, arguing. Gustavo got the telephone and continued to watch through the window as he called the police. Donnie tried to open the security door and yelled, Hes trying to kill me, and, He slit my throat. Defendant had his arms wrapped around Donnies head and chest and they were struggling. Defendant was swinging at Donnie, but Gustavo could not tell if defendant had anything in his hands. Gustavo approached the security door and yelled that he had called the police. At that point, defendant stopped attacking Donnie and walked away.^[2]

Police Officer Paul responded to the call. When she approached, she found Donnie in a squatting position with his hands around his throat. He was bleeding severely and was unable to speak. Bubbles were emanating from his injuries. Immediately next to Donnie was a butcher knife with an eight-inch blade covered in blood. The officer applied a towel and pressure to Donnies injuries and he was then able to tell her who had harmed him. Gustavo gave the police a description of defendant.

After Donnie left in an ambulance, the officer went to Donnies apartment. There was blood on the stairway leading to the apartment and in various places inside the apartment. On the outside wall of the managers apartment, the officer found a bloody handprint and there was blood on the doorknob, as though someone had tried to open the door.

An hour or an hour and one-half later, other officers located defendant outside a residence a block or two away. The police set up a perimeter and broke through the yards fence. They yelled at defendant to stop, but he refused and attempted to enter the house. He refused to show his hands, so an officer subdued him with her taser and handcuffed him.

Once defendant was handcuffed, he remained very upset and angry. Unsolicited, he yelled, I stabbed that motherfucker, that child molester motherfucker. The officer patted him down and found a glass pipe with white residue in his pocket. When the officer removed it and held it up, defendant said, Its a meth pipe. Then he yelled, again angrily and spontaneously, Is that motherfucker dead? If hes not, when I get out, Im going to kill him.

Defendant had a very small cut on his left hand and his clothing was covered with blood.

Dr. Bilello, a trauma surgeon, performed surgery on Donnie after he had undergone emergency surgery to stop the bleeding and ensure an airway. One of Donnies wounds penetrated almost halfway through his neck. Dr. Bilello explained at trial that the wounds required a significant amount of force to penetrate as far as they did.

The day after the stabbing, Officer Sauceda attempted to obtain information from Donnie at the hospital, but he was unable to speak. The officer waited until February 12 to speak to Donnie because she was told he was sedated and not in a condition to communicate until then. That day, Donnie told the officer he and defendant had been alone in his apartment. Donnie did not drink any whiskey and they did not argue. Donnie kept the knife on the back of his couch for protection because he lived in a bad neighborhood. Donnie told defendant he was going to bed and he walked from the kitchen to the living room, at which point defendant jumped up from the couch, rushed toward him and began stabbing at his neck.

When asked at trial to describe defendants demeanor and conduct that night, Donnie said defendant was acting like his mind was taken over or he was out of his mind because otherwise he would not try to kill a friend. Donnie explained defendants mental state as follows: But no, I think its not a matter of him not being all there. I think he was just -- just some cruel, cold, mean thoughts came into his mind. And he was aware of the thoughts and he followed through on them. Donnie previously had said it was like defendant blacked out. He explained that he meant defendant was not in the right state of mind. Donnie meant that defendant thought he was going to kill Donnie and he followed through on that thought. Defendant was so under the influence that he just wasnt in the right frame of mind. He was loaded on drugs and he had the intent to kill and he tried to follow through on it. It definitely seemed like something else had stepped into him. Donnie thought the drugs were probably controlling him. Donnie explained that his prior use of the word zombie only referred to defendants droopy eyes, not the way he was acting. Donnie could not say that defendant was not himself when he stabbed him. Donnie said, It wasnt like him to do that, but he did. So it doesnt excuse, you know, what he did .

Donnie had not threatened defendant in any way and he had not been angry with defendant. They had never been in a situation where they wanted to fight. Donnie had not ingested any methamphetamine that day, but he had smoked some marijuana. Donnie could think of absolutely no reason for defendant to stab him.

On cross-examination, Donnie agreed that he had considered defendant a very, very good friend. They had known each other about one year seven months before the incident. About three months after they met, Donnie told defendant that he had been convicted for having sexual relations with a 14- or 15-year-old girl. Defendant did not express any anger toward Donnie on that topic. He was a little bit argumentative, but then after that he pretty much just let it go. That conversation occurred one and one-half years before the incident.

Defense Evidence

Ernie lived in Donnies garage for two or three months. Ernie had also known defendant for several years. Ernie was in Donnies apartment the day of the stabbing. He arrived at Donnies at about 6:00 p.m. and he stayed for three or four hours. Donnies other roommate, Rick, was also there. He was asleep in a bedroom. Defendant was either already there or he came later. Donnies apartment was a place where everyone gathered and drank together.

Ernie could tell that Donnie and defendant were getting drunk that evening. Defendant and Ernie were smoking methamphetamine with Rick in his room. Defendant was drinking malt liquor, as he typically did. Everyone was getting along. Ernie decided to leave around 10:00 p.m. when there was a ruckus going on. He left and walked toward Burger King, but before he got there he saw defendant and Donnie in the alley near the apartment. Ernie saw defendant and Donnie go their separate ways. Ernie met a friend at Burger King and, within 10 minutes or so, he saw police cars and emergency vehicles swarming the area near the apartment. Ernie did not go back to the apartment that evening because he was on probation and did not want contact with the police. From a nearby park, Ernie saw Domingos car being towed away from the apartment area. Ernie went back the next morning, but Rick would not let him in.

On cross-examination, Ernie admitted he had used heroin that night.

DISCUSSION

Defendant contends defense counsel provided ineffective assistance during closing argument because he failed to argue an intoxication theory when there was evidence of intoxication and the court instructed on intoxication as it applied to specific intent. Defense counsel instead argued an unconsciousness theory, based not on intoxication but an unspecified cause. We conclude any deficiency was harmless.

To establish ineffective assistance of counsel, a defendant must show (1) counsels representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsels deficient performance was prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) To establish prejudice, the defendant must make a showing that but for counsels deficient performance there was a reasonable probability that the result of the proceeding would have been different. (Strickland v. Washington, supra, at pp. 693-694; People v. Ledesma, supra, at pp. 217-218.) The reviewing court can adjudicate an ineffective assistance claim solely on the issue of prejudice without determining the reasonableness of counsels performance. (Strickland v. Washington, supra, at p. 697; People v. Ledesma, supra, at pp. 216-218.)

During defense counsels opening statement, he described the case as a stabbing that occurred during an extremely drunken night of several friends. He also explained:

What we have is two drunks -- I would say toxic, drinking-themselves-to-death alcoholics -- fighting or arguing over a bottle of whiskey. Donnie told [defendant], You cant have anymore. [Defendant] wanted to leave. Donnie threatened [defendant], saying, Ill kick your ass. [] The evidence will show that in Donnies own words, [defendant] just within seconds, his mind was taken over as if by a demon. He describes [defendant] as blacking out. He said -- he will tell you that [defendant] was unconscious at the time of the stabbing. Unconscious. Now, he will tell you that [defendant] blacked out as though he was taken over by another person, that [defendant] blacked out. [] The evidence will show that [defendant] was in and out of consciousness that night and was, in the words of the Peoples witness -- the star witness in this case, the witness who was there -- that [defendant], his very, very good friend, was unconscious at the time of the stabbing. There was no intent to kill. There was no real intent to stab. [] [] But the evidence will show from Donnie[s] own mouth that they were very, very good friends, but [defendants] mind was taken -- just within seconds, was taken over as if by a demon for real . [] [] I think the evidence will show that [defendant] got a very small cut or very small wound that night, appears to be a defensive wound, and that [defendant] at some point got the knife, blacked out, completely blacked out as though -- as though he was taken over as if by a demon, as if he was taken over by another personality, and was unconscious and stabbed Donnie.

At one point during trial, defense counsel argued for admission of certain prior statements by Donnie. Counsel said, And this is absolutely the defendants defense of the case of unconsciousness. Donnie is the witness to unconsciousness. He testified here he did not want to be a witness to unconsciousness and told us a tale of [defendants] deceiving him, uh, and coming in, intending to kill him.

During closing argument, defense counsel conceded there was indisputable evidence that defendant stabbed Donnie, but the issue was defendants mental state at the time he did so. Counsel pointed out that Donnie and defendant were good friends and drinking buddies. Defendant was not angry that Donnie was a sex criminal. Indeed, defendant had no reason to hurt Donnie. But all of a sudden, defendants mind was [t]aken over by a demon. Defense counsel continued:

[Defendants] personality wasnt there. It is as though he was blank and operating under the influence of something else. Its like he blacked out. We understand what blacking out means. It means you are unconscious, you are not aware, you are not doing things intentionally, you dont have an intent in your head. You are blacked out. [] []

Donnie is a very interesting person and a very interesting witness. Like most witnesses, he gets more sure of himself and his testimony improves a little bit with time. [] But I submit what he told my investigator and what he told you about [defendants] intent, that he didnt have any, that he was blank. Again, Donnie told us its like [defendant] was a zombie. Thats another phrase thats very easily understood. Zombie in the trivial sense is the walking dead. But what it means is the body is moving and the mind isnt there. Thats what the meaning of the word is. [] []

Donnie does [know defendant] all too well. And he knows him well enough to be in a position to say that [defendant] blanked out. He knows [defendants] personality. They were drinking buddies for a long time. These arent strangers. They were very, very good friends. So Donnie knows what hes talking about. He knows [defendant] all too well.

So when [Donnie] says [defendant] blanked out, he was a zombie, and automaton, he knows it, he knows what hes saying and he means it. And really the zombie language came up yesterday. That was Donnies words. Donnie tried to backtrack and say, well, the guy really had this intent to kill and he was a false friend who apparently came in the door planning on killing him. Well, for one thing there were people there, not just [defendant] and Donnie and some other guy who came and went. Rick was there. Ernie was there. The usual drinking crowd was there. Not the worlds best place for a murder.

And, again, Donnie said it came out of the blue. [] []

Donnie is not the most reliable person in the world. I will accept what he gives me. But when yesterday he tried to backtrack and talk about how [defendant] intentionally was trying to kill him, thats not what he said a week afterwards when he said [defendant] was blank as if taken over by a demon. Yesterday in court he was going on and on. [] []

And what we have is the testimony of Donnie who is the heart and [soul] of this case. The eyewitness. The man who was there. The man who has no reason to lie. The man with the stab wounds. Who said then and who said now that they were very, very good friends. But [defendants] mind was just within seconds taken over. That its like he blacked out and someone is in control of him.

And Donnie expanded on this yesterday and said [defendant] was a zombie. And then Donnie backtracked and said, well, that means droopy eyes. Well, there is a little more to being a zombie than having droopy eyes. Its not a wardrobe malfunction. A zombie is someone who is moving[,] who is unconscious, who[se] body is moving and the mind and the intent are not there. And again, this is not from me. This is not from some expert. This is straight from Donnie, straight from the horses mouth.

And Id ask you to believe him. Okay. Its perhaps a little unusual that a defense attorney asks a juror, a trier of facts, to believe the victim. But here we are and thats what we have.

Id ask you to apply the Courts instructions to the facts that you have. What we have is [defendant] blanked out, acting a zombie, moving without intent, without motive, without reason, snapped and this happened. He wasnt aware of what he was doing. He had no intent to kill. He had no intent to commit great bodily injury. The use -- ordinarily looking at the facts, one person stabs another, its pretty obvious what they are doing. And that, of course, is the Peoples argument. Unfortunately for the People, we have the testimony of Donnie that thats not what was going on that night. [] [Defendants] body was moving. His personality that Donnie knew all too well wasnt there. Wasnt there. The intent, the awareness, the ability to focus an intention wasnt there. There is no intent to kill. There was no intent to do great bodily injury. There wasnt any intent at all. No awareness. And thats proven beyond a reasonable doubt by the testimony of Donnie. Thats what we have.

This is one of the strangest cases you are ever likely to see. And it gets even more peculiar. Because we -- I am not arguing that [defendant] was mindless due to voluntary intoxication. He wasnt passed out. No other witnesses have him passed out. He wasnt out of it due to voluntary intoxication. And thats not what Donnie described. What Donnie describes is someone who was blank, who acted as though he was under the control of something else or some strange force who is being a zombie. We dont have testimony from Donnie that [defendant] took one last hit and went crazy. That isnt what we have. That isnt what we have. That would be voluntary intoxication. What we have is maybe the strangest set of facts you are ever likely to see in a courtroom. But thats what we do have. And the People have proven it beyond a reasonable doubt from the testimony of their witness. And Id ask you to accept Donnie for what he said and for being correct. He was there and he knows.

Thank you very much.

As these passages demonstrate, rather than arguing that defendant lacked the intent to kill (or to inflict great bodily injury) because he was intoxicated, counsel argued that defendant lacked intent because he snapped, blacked out, blanked out, was like a zombie, was moving but unconscious, was unaware, was under the control of someone or something else, and had lost his personality. Defense counsel did not request instruction on unconsciousness caused by a blackout or other involuntary cause (Judicial Council of Cal. Crim. Jury Instns. (2006-2007), CALCRIM No. 3425).

Even if we assume counsels approach was deficient rather than tactical,^[3]we cannot conclude that it prejudiced defendant. As defense counsel acknowledged, the only issue in this case was defendants mental state. The evidence that defendant intended to kill Donnie was overwhelming. Defendants intent was established by his violent, repeated stabbing deep into Donnies neck; his youre already dead, Donnie statement ; his unrelenting pursuit and continuing attack as Donnie attempted to flee, dragging defendant with him; and, most notably, his emphatic statements of intent made to the police more than an hour and one-half after the stabbing, when he said he had stabbed that motherfucker, that child molester motherfucker, inquired whether he had killed that motherfucker, and asserted that, if he had not, he would kill him when he got out. In light of this evidence, it is inconceivable that a reasonable jury would conclude defendant did not intend to kill Donnie. Furthermore, there was no evidence that defendant was unconscious of his acts and therefore unable to act with volition or intent. He was able to function, converse and joke. He walked without losing his balance or falling down. He told Donnie he was already dead. He tenaciously pursued and attacked Donnie until he realized there was a witness to his attack and the police had been summoned, at which point he fled the scene, evaded the police and spontaneously informed them he hoped he had killed Donnie. This scenario does not even remotely suggest defendant was unconscious of what he was doing. Whatever motivated him to act (the jury apparently determined it was passion), the evidence overwhelmingly established he was perfectly aware of his actions and he engaged in them with the express intent to kill Donnie.^[4]

We conclude that defense counsels failure to argue an intoxication theory (or request an unconsciousness instruction) was harmless because there is no reasonable probability such an argument (or instruction) would have changed the result of the proceeding. Having found no prejudice, we need not address whether the performance of counsel was deficient. (Strickland v. Washington, supra, 466 U.S. at p. 697; People v. Ledesma, supra, 43 Cal.3d at pp. 216-217.) Defendants claim of ineffective assistance must fail.

DISPOSITION

The judgment is affirmed.

_____________________

Kane, J.

WE CONCUR:

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Wiseman, Acting P.J.

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Levy, J.

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^[1] All statutory references are to the Penal Code unless otherwise noted.

^[2] On cross-examination, Gustavo explained that Donnie and defendant got along, although sometimes they argued. They were always together drinking. When Gustavo saw Donnie, he usually could tell Donnie had been drinking.

^[3] Unlike voluntary intoxication (even to the point of unconsciousness), unconsciousness due to an involuntary cause had the potential to serve as a complete defense to all of the crimes charged against defendant because a person who is rendered unconscious due to, for example, epilepsy or the unknowing consumption of a spiked drink, is not held legally responsible for crimes he commits in that unconscious state. ( 26, subd. Four [unconscious person is incapable of committing crime]; People v. Boyer (2006) 38 Cal.4th 412, 469; People v. Kelly (1973) 10 Cal.3d 565, 572-573; People v. Scott (1983) 146 Cal.App.3d 823.)

^[4] For this reason, the trial court had no duty to instruct sua sponte on unconsciousness. (People v. Memro (1995) 11 Cal.4th 786, 868 [there is no duty, either sua sponte or at the defendants request, to instruct the jury on a defense that is not supported by substantial evidence].)