P. v. Latimer
Filed 1/23/13 P. v. Latimer CA2/3
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opinion has not been certified for publication or ordered published for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
SECOND
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
LORENZO MICQUELL LATIMER,
Defendant and Appellant.
B232280
(Los Angeles
County
Super. Ct.
No. KA085849 )
APPEAL
from a judgment of the Superior Court
of
County, Charles Horan, Judge. Affirmed.
Jennifer
Peabody, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Corey J.
Robins, Deputy Attorneys General, for
Plaintiff and Respondent.
_________________________
Defendant and appellant, Lorenzo Micquell Latimer, appeals his conviction
for premeditated attempted murder,
aggravated mayhem, inflicting corporeal injury on the mother of his child,
arson, hit and run driving, and the unlawful driving or taking of a vehicle,
with deadly weapon, great bodily injury and prior prison term enhancements
(Pen. Code, §§ 664, 187, 205, 273.5, 451, 12022, 12022.7, 667.5; Veh.
Code, §§ 20002, 10851).
name="_ftnref1" title="">[1] Latimer was sentenced to state prison for
life plus 11 years and two months.
The judgment is affirmed.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (
1206), the evidence established the following.
1. Guilt phase of the trial.
a. Prosecution
evidence.
(1) The
motel attack.
Defendant Latimer and Darlene Diaz started dating in 2007 and Diaz soon
became pregnant. When their child was a
year old, Diaz and Latimer began living together in Covina
along with Diaz’s two other children. In
November 2008, because they were having financial problems, they decided
to relocate to Georgia
to take advantage of a rent-free living situation arranged by Latimer’s
father. On the night they were to leave,
however, they apparently argued and Latimer went to Georgia
by himself. When he returned to California
in late January 2009, he and Diaz resumed living together. They again made plans to move to Georgia.
On January 26, 2009,
Diaz, Latimer, their baby son and Diaz’s two older sons checked into the Valley
Inn Motel in the City of Industry. Diaz testified that sometime after midnight Latimer woke her and told her to give
him oral sex. When Diaz refused, because
the children were in the room, Latimer became upset and threatened violence if
she did not comply. When she still
refused, Latimer punched her in the face.
They argued and Diaz said she would not go to Georgia
with him. Latimer left the motel
room. When he returned, around 3:15 a.m., he grabbed Diaz from behind and
threatened to kill her if she did not accompany him to Georgia. Latimer then left again, taking the keys to
Diaz’s SUV. Diaz stayed in the motel
room and fell asleep.
When Diaz awoke two or three hours later, Latimer was next to her on the
bed. She dressed and walked
outside. Latimer followed and asked her
for a hug, which Diaz refused. Latimer
then came up behind her, put one hand over her mouth and the other on her
neck. Diaz tried to break free. When another motel guest walked by, Latimer
let her go.
Diaz noticed there was blood on her fingers and she realized her neck was
bleeding. She went to the motel office
and asked the male employee to call the police, but he told her to leave. After a shift change, a new employee came
into the office. This woman also asked
Diaz and Latimer to leave.
Diaz and Latimer continued to argue in front of the motel office, Diaz
insisting she would not go to Georgia
because Latimer had punched her. Then
all of a sudden Latimer attacked her.
Diaz wasn’t sure exactly what he did to her, but she ended up on the
ground. She tried to use her hands to
defend herself and she thought she was going to die. Eventually, her 15-year-old son, Jeffrey,
came up and screamed at Latimer, who stopped assaulting Diaz for a moment but
then kicked her in the head. Latimer ran
to Diaz’s SUV. He had to replace a fuse
in order to get the SUV started, but he did this and then drove off. Diaz testified she was bleeding heavily. Three razor blades were later recovered from
the scene.
At the hospital, Diaz had surgery on her cheek, hand, finger, neck and
chest. Among other injuries, she had
sustained a two-and-a-half inch cut from the corner of her mouth straight
across her inner lip, and a five-to-six inch cut across her throat. She was also left with multiple scarring to
her fingers and hand.
(2) The
freeway collision.
Later that morning, between 8:00 and 8:30 a.m.,
Sandra Byers was driving on the 57 Freeway when Latimer, in Diaz’s SUV,
hit her from behind. It was a minor
collision and Byers was not injured. She
pulled over to the side of the road.
Latimer parked in front of Byers and walked over to her car. He had blood on his arms, fingers and
shirt. Latimer explained the blood by
saying he had cut his finger while working at a construction site and he was
trying to get to the hospital. He asked
her to come over to his car so they could exchange insurance information, but
Byers refused to leave her car because the situation “didn’t feel right.†When Byers said she wanted to call the
police, Latimer “started to panic†and said, “Don’t do that.†When Byers called 911 anyway, Latimer drove
off.
(3) Latimer’s
apprehension.
Around 9:30 a.m., passers-by
noticed Latimer sitting in an SUV on the side of the road in Lake
Elsinore. There was smoke coming from the vehicle. Latimer left the SUV and walked to a bus stop
across the street. When the police
arrived, the SUV was on fire and Latimer was still sitting at the bus
stop. The fire had been caused by
arson.
b. Defense
evidence.
Chien Wang testified she started her work shift at the Valley Inn Motel
office around 7:30 a.m. that
day. Latimer and Diaz were inside the
office, arguing about taking their children to Georgia. Wang told them to calm down and ushered them
from the office. Diaz did not ask for
any help at that time. Diaz and Latimer
continued arguing in front of the motel office.
Around 8:00 a.m., Diaz
screamed for help. Wang was scared, so
she locked the door and called 911.
Latimer was moving his hand in a stroking motion at Diaz’s neck, but
Wang could not tell if he was holding anything.
Latimer testified in his own
defense. He and Diaz began living
together in September 2008. They
had planned to move to Georgia
in December 2008, but that fell through and Latimer went without her. He returned to California,
but then on January 1, 2009,
he again went to Georgia
alone because Diaz “punched me in the face and began abusing me.†When he returned to California on
January 25, he, Diaz and the children went to stay at the Valley Inn
Motel.
That night, Latimer and Diaz slept in a bed with their 14-month-old
son. Latimer and Diaz had consensual
intercourse and oral sex. While Diaz was
orally copulating Latimer, the baby reached out to touch Latimer’s penis. This upset Latimer and he hit Diaz in the
face. Latimer testified: “It upset me for my son to be reaching for my
genitalia, as I spoke with Miss Diaz about many times before.†Diaz continued to orally copulate Latimer,
but then she stopped and said she would not go to Georgia with him. This caused Latimer to get “extra upset.†They argued and Diaz called Latimer mean
names. He left the motel room around
3:00 a.m. and sat in Diaz’s SUV. He
was starting to lose his mind. He felt
like a failure as a father and he felt suicidal. He went to a store, purchased razor blades
and thought about killing himself.
Latimer returned to the motel room a few hours later and began arguing
with Diaz again. They went outside, so
the children could sleep, and argued about going to Georgia. When Latimer tried to give her a hug, Diaz
pushed him away coldly. In doing so, she
happened to put her hand into the pocket containing his razor blades and nicked
her finger.
When Diaz started calling him names, Latimer put his hand over her mouth
and asked her to listen to him. At that
point, they went into the motel office and continued to argue. After Wang told them to leave, Diaz kept
calling Latimer names and swearing at him while he tried not to argue with her,
but then he lost his mind, considered suicide, and then he attacked Diaz.
triggered his assault on Diaz, although he could not recall all the details of
the attack:
“Q. [By the prosecutor]: When you were attacking her with the blades,
you were aiming for her throat, neck, and face area, correct?
“A. I can’t recall exactly my
aiming. I just started slashing. I just started going.
“Q. At that time Miss Diaz was on
the ground, wounded, as you were standing over her and slashing her; is that
correct?
“A. In my attack, I’m pretty sure
that’s what happened. I didn’t realize
any of those moments until her son called my name.
“Q. At that time Miss Diaz was
screaming for help; is that correct?
“A. Honestly . . . I
wasn’t coherent to most of that until my name was called.â€
He did recall kicking Diaz in the face after Jeffrey yelled at him:
“I realized what had taken place . . . and what I got
pushed to, and I just lashed in anger at that point.â€
Latimer insisted he never intended to kill Diaz. He denied having grabbed her by the hair or
threatening to kill her if she didn’t go to Georgia with him: “My intentions were actually to comfort Miss
Diaz. That is the only reason why I came
back to the motel that morning, was to comfort her and to assure her I just
wanted her to go to Georgia and get away from the problems that were
surrounding us. And so she could live
with me comfortably without the problems surrounding my life.â€
After kicking Diaz in the head, Latimer drove off in her SUV. He remembered colliding with Byer’s
vehicle, pulling over and talking to her.
He acknowledged falsely telling Byers he had cut his hand in a
construction site accident and that the SUV belonged to his sister. He then drove off and kept driving until he
ran out of gas. He thought he was in
Georgia. He did not recall setting the
SUV on fire because he “was really in a big blatant state of blur.â€
Latimer acknowledged having been convicted of two felonies. In 2002 he pled guilty to attempted forcible
sexual abuse in Utah. In 2004 he was
convicted in Los Angeles County for lewd and lascivious acts upon a child.
2. Sanity phase of the trial.
a. Defense
evidence.
(1) Latimer’s
testimony.
Latimer testified he has been diagnosed with delusional disorders,
paranoid schizophrenia and depression, and that he has taken medication for
these conditions on and off since 2004.
He hears voices in his head every day.
They are the voices of family members, particularly two male cousins who
say things like “I’m fucking your daughter†and “you are a punk.†He avoids these voices by answering them in
his mind, but when they become too aggressive he moves around, making hand
gestures and talking aloud as if the speakers were actually present. Latimer stopped taking his schizophrenia
medication in September 2008 because he could not afford the cost after
completing his parole term. He then
resorted to self-medication with marijuana.
Without his prescription medicine, the voices became more aggressive and
he heard them almost daily from 2006 through the date of the attack.
After he and Diaz had sex at the motel
that night, Latimer heard the voices saying “You ain’t pimping†or “You ain’t
pimping shit.†He left the motel the
next morning “because the pressure of the argument, pretty much. And then Miss Diaz saying that she
wasn’t going to go to Georgia with me was pretty much the point.†While sitting in Diaz’s SUV, Latimer heard
his cousin’s voice saying Diaz was not going back to Georgia with him, that she
was his cousin’s whore, and that things were going to be done to Latimer’s
children.
Latimer again heard the voices when he tried to hug Diaz in the motel
parking lot. The voices did not tell him
to hurt her, just that they were taking control of her. Latimer testified he was able to ignore the
voices: “[P]retty much I was just
ignoring [the voices] at that point.
When I attempted to, they were really oblivious [sic]. They didn’t matter too
much at all.†“I can’t really remember
paying too much attention to the voices at that point at all. Just the things that [Diaz] was saying is
what I was paying attention to.â€
(2) Testimony
of Latimer’s mother.
Latimer’s mother, Deanna Wright, testified that when the military
discharged Latimer in the 1990’s, after he was diagnosed with paranoid
schizophrenia, he moved in with her.
During this time he angered easily, did not take responsibility for
himself, and engaged in bizarre behavior like talking to people who were not
there. He spent time at two mental
hospitals from 2003 to 2005. The last
time Wright saw Latimer before the attack he looked like a “homeless bum.â€
On the afternoon before the attack, Latimer and Diaz came to Wright’s
house to pick up the children. Latimer
was wearing strange clothes, had a “villainous look on his face,†and seemed to
be “off in his own world.â€
In the hours before the attack, Latimer
called Wright. He sounded afraid and
said Diaz and her ex-husband were trying to kill him. Wright said no one was going to hurt him and that
he should come over to her house if he was scared. Wright could tell something was wrong by the
sound of Latimer’s voice: “His voice
always is changed when he’s not himself.
When he’s a different person, when voices are speaking to him, he’s not
the person that we know.â€
(3) Darlene
Diaz’s testimony.
Diaz testified Latimer never told her he
had mental health issues, a psychiatric
diagnosis, or that he was taking medication. Prior to the attack, Diaz had twice seen
Latimer talking to himself while waving his hands; each time was after Latimer
had been smoking marijuana. When Diaz
asked about this, Latimer said his cousins were talking to him. During their relationship, Latimer would
accuse Diaz of sleeping with her employer, the maintenance man for their
apartment, and her former husband.
When Latimer returned to the motel room on the morning of the attack, he
told Diaz she “wouldn’t have to worry about [her former husband] anymore, that
I would be free of him.†Although
Latimer appeared to be agitated and upset during the attack, it did not seem to
her that “he felt like he was beginning to lose his grip.†That night and during the attack, Latimer was
not talking to himself.
(4) Testimony
of Deputy Brooks.
Deputy Sheriff
Donald Brooks testified he and his partner responded to the report of a car
fire in Lake Elsinore. When they arrived
at the scene, Latimer complied with their command to lie prone on the
ground. After they arrested him, Latimer
kept saying, over and over again: “I
told them at the Christmas party they put that shit in my mouth. I told them they don’t live here, they were
just visiting.†The deputies then left
Latimer alone in the patrol car for 10 or 15 minutes with an onboard audio
recording device turned on. When the
deputies were out of earshot, Latimer did not speak at all. Once the deputies returned to the patrol
car, however, Latimer again started repeating, “I told them they were just
visiting.â€
(5) Defense
expert.
Dr. Marshal Cherkas testified Latimer had been diagnosed with paranoid
schizophrenia: “He mis-viewed things,
and maybe hallucinations, delusions, but also with a definite emphasis on
paranoia. He projected his fears of life
on to other people. He may have hated
people, so he assumed they hated him and were out to get him.†In Cherkas’s opinion, Latimer had been
insane at the time of the charged crimes.
This conclusion was based on Latimer’s long history of mental illness,
his claimed history of bizarre sexual abuse by his cousins,
his failure to remember setting the SUV on fire, and the termination of his
prescribed medications.
name="_ftnref4" title="">[4] Cherkas testified it was common for
schizophrenics to have “selective amnesia.â€
Cherkas acknowledged there was evidence tending to show Latimer knew his
actions were wrong: he stopped attacking
Diaz in the parking lot when someone walked by; he told the motel employee not
to call the police; he stopped and talked to Byers after the freeway collision
and tried to convince her not to call the police.
Cherkas testified Latimer knew and understood the nature and quality of
his acts. For example, he knew he was
slashing Diaz’s throat. However,
“at least during the time that he was angry with his wife, and hearing
voices, and talking crazy stuff about his son touching him and the cousins
. . . . [h]is ability to use judgment, his moral thinking was
gone. He was in such a state that he
wasn’t thinking right or wrong. He just
acted impulsively.†Cherkas conceded
that impulsivity did not constitute insanity, and that people who reacted
violently during domestic arguments might be mentally ill without being legally
insane.
(6) Prosecution
expert.
Dr. Sanjay Sahgal testified Latimer had “a history of psychotic symptoms
consistent with schizophrenia,†which he defined as “ a severe mental illness
characterized by a combination of either delusions, hallucinations, or
disorganized thinking.†Sahgal opined
there is no relationship between schizophrenia and selective amnesia, although
schizophrenics can experience memory problems.
Asked if the “types of memory problems that [Latimer] exhibited
through his testimony†was “something that you would see in schizophrenic
people?â€, Sahgal replied, “No.†He
explained: “[I]f someone were to have
complete amnesia, it wouldn’t wax and wane according to the context of events
in a couple-hour period. And it wouldn’t
be consistently and conveniently surrounding events that would affect
guiltiness or culpability. [¶] So amnesia is rare enough as it is, but in
this particular case . . . not remembering a stabbing, but completely
remembering a certain car model, that’s inconsistent with any sort of amnesia,
let alone amnesia from schizophrenia.â€
Sahgal opined Latimer had not been insane when he attacked Diaz. The quality and nature of his actions
demonstrated organization and logic.
Based on their interview, Sahgal concluded Latimer did not subjectively
believe he had been acting in a morally correct way: “He told me that he believed that the victim
was going to kill him or harm him, and he therefore struck her in
self-defense. [¶] Well, I asked him, if you really felt like
you were defending yourself, why didn’t you just run away? Or alternatively, given that you are a man
and she’s a woman, why . . . did you feel threatened in the first
place. I also asked . . . why
he may have come up from behind her. And
all those questions were answered with an ‘I don’t know.’ †After attacking Diaz, Latimer fled the scene,
lied to Byers about his injuries, and then set the SUV on fire to destroy
evidence. And while Latimer had made
“some very strange statements to the police when he was arrested and that might
suggest something of a motive that wasn’t rational,†those statements “were not
consistent with all the other behaviors.â€
Sahgal concluded that “even if [Latimer] was grossly psychotic through
the whole thing, his behaviors were one [sic]
of somebody who would then be grossly psychotic but aware of what they were
doing and that it was morally wrong.â€
Regarding the voices in Latimer’s head, there was this colloquy:
“Q. Did he indicate to you that at
the time of the event, that these thoughts about his cousins were coming into
his head?
“A. [Dr. Sahgal:] He did not.
“Q. Did you ask him
. . . if he had thought about his cousins in his head at the time of
the event?
“A. I did, because of his comments
to the police, which were of that theme, I did ask him.
“Q. What was his response?
“A. His response was he could not
recall anything relating to some of the swaths of time during the course of
events.
“Q. Now, his inability to recall
certain periods of time at the event, could that be a result of the voices that
he hears in his head?
“A. No.â€
CONTENTIONS
1. The trial court erred by
refusing to admit evidence of Latimer’s police statements when he was arrested.
2. Latimer was denied effective
assistance because defense counsel failed to present mental impairment evidence
at the guilt phase.
DISCUSSION
1.
Trial court did not err by
excluding evidence of Latimer’s police statements.
Latimer contends the trial court erred
during the guilt phase of his trial by excluding evidence of the statements he
made to deputies when he was arrested at the scene of the SUV fire. This claim is meritless.
a. Background.
In the guilt phase of the trial, during the cross-examination of Deputy
Brooks, defense counsel sought to ask about statements Latimer made when he was
detained at the scene of the burning SUV.
The following colloquy occurred:
“The Court: What did he say? What is the offer?
“[Defense counsel]: The statements
he made were, ‘I told them at the Christmas party they put that shit in my
mouth. I told them they don’t live here,
they were just visiting.’ That was his
statement. And according to the police
report, he kept on repeating that, repeating that.
“The Court: And therefore, what?
“[Defense counsel]: It’s just very
odd behavior.
“The Court: Want to be heard?
“[Prosecutor]: I would just say
it’s hearsay at this point in the case-in-chief. . . . It’s irrelevant and hearsay.
“The Court: I am going to sustain
the objection.â€
b. Discussion.
Latimer asserts this testimony would have been relevant because his
“defense at the guilt phase was that he did not premeditate or deliberate the
attack, did not intend to kill [Diaz] and did not intend to permanently
disfigure her.†He argues these
“repeated nonsensical comments at the time of his arrest supported the argument
that he did not have the ability to plan and premeditate the attack or form the
requisite specific intent. Brooks’
testimony would have explained the depth of appellant’s delusion and despair,
suggesting that his proffered testimony about his intentions and actions before
and during the attack were truthful and provided the jury with insight into
appellant’s state of mind during the rampage.â€
The Attorney General argues this evidence was properly excluded because
it constituted implied hearsay. That is,
the statements “were offered for the truth of their implied assertions that
[Latimer] was speaking to whomever he thought was there, and that appellant
honestly believed†what he was saying.
The Attorney General asserts Latimer’s “words were potentially relevant
only if they were truthful, that is, if appellant actually believed he was
truthfully speaking with people who were not present rather than to the
deputies who were arresting him. If
appellant was lying during his statements – e.g., if he did not really believe
he was talking to people who were not there about truthful matters – then his
statements could not possibly be relevant to show any contested issues of
fact.†We agree.
“A declarant’s express words that
are offered to prove the truth of an implied statement to be
inferred from such express words constitute a hearsay
statement . . . . (See Jefferson, Cal. Evidence
Benchbook (1972) Express Statement Offered for Truth of an Implied Statement,
§ 1.4, pp. 11-22.)†(
Cal.App.3d 824, 885, disapproved on other grounds by People v. Kimble (1988) 44 Cal.3d 480, 496, fn. 12; see
83 Cal.App.3d 718, 726 [“Any proposed relevancy of these two statements
[that declarant Lopez told the witness they were going to buy heroin and
that he was looking for a particular car] is to the effect that Lopez was
stating that he was looking for defendant
as the source of his purchase. As such,
Lopez was making an implied hearsay statement that defendant was a supplier of
heroin.â€].)
In People v. Morgan (2005) 125
Cal.App.4th 935, an officer executing a search warrant for evidence of drug
trafficking answered the telephone and heard someone ask to buy drugs. This was held to be hearsay: “[W]hen the man on the phone told Detective
Ashworth that ‘he was bogeying’ and then asked him if he ‘had any,’
implication taken from the spoken words.
While the ultimate fact the statement is offered to prove is not the
matter stated, the truth of the implied statement is a necessary part of the
inferential reasoning process. The
statement is relevant only if the caller actually wants drugs as he
states. If he does not want drugs, and
is asking for them only to cause trouble for the defendant or as a crank call,
then the call has no relevance because it is not circumstantial evidence that
defendant is selling drugs.
and his belief that he can obtain them by calling the defendant’s number that
creates the inference that defendant’s drugs are possessed for purposes of sale.†(Id.
at p. 943, italics added.)
In People v. Garcia (2008) 168
Cal.App.4th 261, defendant Ojito’s cellmate Thompson wrote two jailhouse notes,
the first threatening prospective witnesses and the second, addressed to Ojito,
saying: “Do you remember that kite that
I wrote . . . they are tripping in court that I’m doing or did you a
favor on that. . . . So
if my attorney Gretchen goes over there, tell her that someone else wrote it,
not us or me.†(Id. at p. 287.)
statements from the second note normally would not constitute hearsay,
because they were merely “requests or directions to make particular
representations to a third person,†the “statements reasonably can be viewed as
implied hearsay.†(Id. at
p. 289.) “The implied hearsay assertions
reasonably inferred from [the second note] are that Thompson wrote [the
first note] as a favor to Ojito, and that Ojito requested, authorized or
participated in the writing of [the first note].†(Ibid;
see People v. Pic’l, supra, 114
Cal.App.3d at p. 884 [witness’s statement – “Pic’l got busted. Kerbulas screwed us.†– was “intended to
convey . . . he and Pic’l were engaged in a criminal conspiracy plan
which had been thwarted by the victimâ€]; Stoddard v.
State (2005 Md.) 887 A.2d 564, 582 [young child’s question, “Is Erik going
to get me?†– as evidence child had seen defendant assault the victim – was
implied hearsay because jury “needed to infer first that [the child] meant
those words to convey a sincere inquiry as to whether Erik Stoddard was going
to harm herâ€].)
Similarly, Latimer’s statements to the deputies were relevant as
circumstantial evidence of his state of mind only if they were truthful, i.e.,
only if those seemingly unconnected and contextually inappropriate statements
had been sincerely uttered. If Latimer
had only been feigning craziness in order to avoid criminal responsibility,
then his statements were not relevant to show his state of mind.
Alternatively, Latimer argues his statements were admissible under the
state-of-mind exception to the hearsay rule (Evid. Code, § 1250).
Given the evidence showing Latimer made these statements only when he
thought the deputies could hear him, the statements would have been properly
excluded as having been “ ‘made under circumstances such as to indicate
[their] lack of trustworthiness.’ â€
(Evid. Code, § 1252; see People
v. Smith (2003) 30 Cal.4th 581, 629 [defendant’s statements to
his wife, which might have been relevant state-of-mind evidence at penalty
phase to show remorse for his crimes, were properly excluded as “untrustworthy
because [defendant’s] primary motivation in making them was to placate herâ€];
264 Cal.App.2d 350, 358 [“admissibility of declarations of a present state
of mind is . . . subject to the rule of trustworthinessâ€].)
This evidence was properly excluded.
2.
Latimer has failed to demonstrate
ineffective assistance of counsel.
Latimer contends
failing to present evidence of his mental impairment during the guilt phase of
the trial. This claim is meritless.
a. Legal
principles.
A claim of ineffective assistance of counsel has two components: “ ‘First, the defendant must show that
counsel’s performance was deficient.
This requires showing that counsel made errors so serious that counsel
was not functioning as the “counsel†guaranteed the defendant by the
deficient performance prejudiced the defense.
This requires showing that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is reliable.’ [Citation.]
To establish ineffectiveness, a ‘defendant must show that counsel’s
representation fell below an objective standard of reasonableness. [Citation.]
To establish prejudice he ‘must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.’ [Citation.]†(Williams
v. Taylor (2000) 529 U.S. 362, 390-391 [146 L.Ed.2d 389].) “[T]he burden of proof that the defendant
must meet in order to establish his entitlement to relief on an
ineffective-assistance claim is preponderance of the evidence.†(People
v. Ledesma (1987) 43 Cal.3d 171, 218.)
“Where
the record shows that the omission or error resulted from an informed tactical
choice within the range of reasonable competence, we have held that the
conviction should be affirmed.†(
1189, 1215; see People
v. Mitcham (1992) 1 Cal.4th 1027, 1059 [decision whether to put on witnesses is
“matter[] of trial tactics and strategy which a reviewing court generally may
not second-guessâ€].) “[T]he choice of which, and how many, of potential
witnesses [to call] is precisely the type of choice which should not be subject
to review by an appellate court.†(
709, disapproved on other grounds by People
v. Wheeler (1978) 22 Cal.3d 258, 287, fn. 36.) “It is not sufficient to allege merely that
the attorney’s tactics were poor, or that the case might have been handled more
effectively. [Citations.] [¶] Rather,
the defendant must affirmatively show that the omissions of defense counsel
involved a critical issue, and that the omissions cannot be explained on the
basis of any knowledgeable choice of tactics.â€
(People v. Floyd, supra, at p.
709.)
“ ‘When . . . the record sheds no light on why counsel
acted or failed to act in the manner challenged, the reviewing court should not
speculate as to counsel’s reasons. . . . Because the appellate record ordinarily does
not show the reasons for defense counsel’s actions or omissions, a claim of
ineffective assistance of counsel should generally be made in a petition for
writ of habeas corpus, not on appeal.’
[Citation.]†(
728-729.)
b. Discussion.
“Under California law, if a defendant pleads not guilty and joins it with
a plea of not guilty by reason of insanity, the issues of guilt and sanity are
tried separately. Penal Code section
1026, subdivision (a), provides that in such circumstances, ‘the defendant
shall first be tried as if only such other plea or pleas had been entered, and
in that trial the defendant shall be conclusively presumed to have been sane at
the time the offense is alleged to have been committed. If the jury shall find the defendant guilty,
or if the defendant pleads only not guilty by reason of insanity, then the
question whether the defendant was sane or insane at the time the offense was
committed shall be promptly tried . . . . In that trial, the jury shall return a
verdict either that the defendant was sane at the time the offense was
committed or was insane at the time the offense was committed.’ [¶]
Although guilt and sanity are separate issues, the evidence as to each
may be overlapping. Thus, at the guilt
phase, a defendant may present evidence to show that he or she lacked the
mental state required to commit the charged crime. [Citations.]
A finding of such mental state does not foreclose a finding of insanity. Insanity, under California law, means that at
the time the offense was committed, the defendant was incapable of knowing or
understanding the nature of his act or of distinguishing right from wrong. [Citations.]â€
(People v. Hernandez (2000)
22 Cal.4th 512, 520-521.)
Hence, “[a] defendant who elects to plead both not guilty and not guilty
by reason of insanity may have the opportunity to employ mental state evidence
in two different ways. At the guilt
phase, the People must prove all elements of the charged offense, including
mens rea. The defense may not claim
insanity. It may, however, produce
lay or expert testimony to rebut the prosecution’s showing of the required
mental state. If found guilty, at the
next phase of trial the defendant bears the burden of proving, by a
preponderance of the evidence, that he was legally insane when he committed the
crime. [Citations.]†(People
v. Mills (2012) 55 Cal.4th 663, 672, fn. omitted.) “The presumption of sanity is not pertinent
to any issue at a trial on the question of guilt. The matter of the defendant’s sanity is
not before the jury, and evidence of insanity is inadmissible. [Citations.]
(Id. at p. 681.)
Because Latimer has proceeded by way of direct appeal, rather than by
means of a habeas corpus petition, the records fails to disclose the reason
defense counsel decided to withhold certain evidence until the sanity
phase. Our Supreme Court has recognized
there is a standard reason for making this kind of decision: “[T]rial counsel could well have believed
that if he were to disclose his evidence of mental incapacity at the guilt
phase, ‘it would lose much of its impact on the [trier of fact] during the
insanity phase.’ [Citation.] We touch here on a difficult tactical problem
facing every defense counsel who possesses psychiatric evidence bearing on his
client’s condition at the time of the crime.
Since the development of the Wells-Gorshen
line of cases, this evidence is usually admissible at both the guilt phase and
the sanity phase. Counsel’s dilemma is,
therefore, at which phase should he introduce this evidence?†(People
v. Miller (1972) 7 Cal.3d 562, 572-573, fn. omitted.) “It is no solution to this dilemma for us to
engage in the perilous process of second-guessing whichever of the alternatives
counsel chooses.†(Id. at p. 573.)
The record in Miller did not
support a claim of ineffective assistance of counsel: “Nothing is seen more clearly than with
hindsight. The most that can be fairly said on this record, however, is that
counsel’s decision to delay introducing his evidence of defendant’s mental
state until the sanity phase was a debatable trial tactic.†(People
v. Miller, supra, 7 Cal.3d at p. 573.)
We come to the same conclusion here.
Latimer asserts there was substantial evidence showing he “suffered from
paranoid schizophrenia at the time of the offense, had not been taking his
medication in the months preceding the attack, and was suffering from
hallucinations or delusions prior to, during and after the attack.†He argues “there could have been no tactical
reason for failing to introduce evidence in support of his claim that he did
not premeditate and or harbor the requisite intent,†and that de
paranoid delusions and ideations in the moments before the attack and that he
was suffering from auditory hallucinations during the attack. Deputy Brooks would confirm that appellant
was acting bizarrely in the hours after the attack.â€
But this argument ignores the
substantial countervailing evidence undermining Latimer’s theory he attacked
Diaz because of the voices in his head.
There was copious evidence showing Latimer lashed out at Diaz in anger
during an extended domestic squabble involving both the on-again/off-again move
to Georgia and the fight over having oral sex that night in the motel.
The evidence showed Latimer and Diaz had
been having major difficulties in their relationship in the months leading up
to the assault. There had apparently
been several attempts to move with the children to Georgia; each time, however,
the trip was aborted and Latimer went by himself. According to Latimer’s testimony, he went to
Georgia alone on January 1, 2009, after Diaz punched him in the face and
abused him. Diaz testified Latimer was
jealous during their relationship, accusing her of sleeping with various
men. Diaz testified that on the night of
the assault Latimer was angry because she refused to have oral sex in the
presence of the children. After he hit
her in the face, she said she wasn’t going to Georgia. Latimer himself testified he became upset
when the baby reached out to touch his penis, something he had complained about
to Diaz in the past. Although Latimer
testified he heard voices before and during the attack, he also testified the
voices did not direct him to harm Diaz, and that what he reacted to was the way
Diaz had been treating him, e.g., her mean comments to him and her refusal to
go to Georgia. Dr. Sahgal testified
Latimer did not tell him the cousins’ voices were active during the attack. The evidence from Deputy Brooks would not
have “confirmed†Latimer was acting delusionally because Brooks’s testimony
tended to demonstrate Latimer was faking.
In sum, it appears defense counsel may have had legitimate reasons for
saving the mental impairment
evidence until the sanity phase.
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN,
P. J.
We concur:
CROSKEY,
J.
ALDRICH, J.
name="_ftn1" title="">[1]
All further references are to
the Penal Code unless otherwise specified.
name="_ftn2" title="">[2]
Latimer testified Diaz
“continued to call me all kinds of stupids and things and such. I’m stupid for coming here, this, that, and
the other. I was trying not to argue.†“And from there, she started calling me all
sorts of names. And I just really lost
my mind from there, as I went through a dilemma of suicidal moments before
coming back to her.†“[Diaz] was just
standing there, calling me aggressive, stupid names and cuss words and things
as I tried to plead her to just allow us to leave from the trouble in
California.â€
