P. v. Villalobos

















Filed 1/23/13 P. v. Villalobos CA4/2









NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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>



FOURTH APPELLATE DISTRICT



DIVISION TWO




>

THE PEOPLE, Plaintiff and Respondent, v. ALEJANDRO HERNANDEZ VILLALOBOS, Defendant and Appellant.

E054012 (Super.Ct.No. FSB1004485) OPINION

APPEAL from the Superior
Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">San
Bernardino County.
Bryan Foster, Judge. Affirmed.

Athena Shudde, under
appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney
General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland,
Senior Assistant Attorney General, and Melissa Mandel and Marissa Bejarano,
Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Alejandro Hernandez Villalobos
admittedly shot and killed his estranged wife.

After a jury trial, defendant was found guilty of
first degree murder (Pen. Code,
§§ 187, subd. (a), 189), with an enhancement for personally and
intentionally discharging a firearm, causing death (Pen. Code, § 12022.53,
subd. (d)). He was sentenced to 50 years
to life in prison, plus the usual fines and fees.

Defendant now contends:

1. The
trial court erred by excluding expert testimony regarding defendant’s mental
condition.

2. Defense
counsel rendered ineffective assistance by failing to request a jury
instruction that provocation can reduce first degree murder to second degree
murder.

We find no error.
Hence, we will affirm.

I

FACTUAL BACKGROUND

A. The Prosecution Case.

In September 2010, defendant’s wife Tania left
him, taking their baby daughter with her.
She moved into a house with her parents and other relatives. Defendant would come over to the house to
visit the baby. He also gave Tania money
for the baby.

1. Prior threats and
violence.

After Tania left defendant, there were a number of
incidents in which he was threatening or violent toward her.

Once, defendant took the baby without Tania’s
permission. As a result, there was a
confrontation between them; he pushed her, and she cried.

Another time, defendant followed Tania to a mall;
once there, he screamed at her and “made . . . a slashing motion
across his neck . . . .”

On another occasion, defendant ran his fingers
across his throat then kissed his fingers; this meant that he was swearing to
kill Tania. At the time, defendant also
remarked, “[W]e pay for everything in this life.”

Another time, defendant got into the house when
Tania was asleep. At first, “he was just
looking at her. Then he started saying a
bunch of bad words to her and pulling her by the hair.” When Tania said she was calling the police,
he “left running.”

Defendant asked Tania’s mother, “[W]hat day d[o]
you want your daughter to die?” Later,
he said he was “just kidding,” and he asked her “not to say anything to the
police.”

Defendant also showed Tania’s mother a gun. He said that some friends had lent it to him,
“for fun.”

2. The shooting.

On October
24, 2010, around 7:00 p.m.,
defendant showed up at Tania’s house. He
demanded that she show him receipts for the money he had given her for the
baby. She laughed and said she was not
going to show him any receipts.
Defendant then pulled out a gun and fired six or seven shots, killing
Tania. Later, the police found two
unfired bullets on the floor.

Tania’s brother ran in and asked what
happened. Defendant said “he was just
tired of [Tania] laughing at him.”
Family members called 911.
Defendant waited at the house until the police arrived. He told them that the gun was on the roof,
and in fact it was.

After defendant was arrested, he volunteered that
Tania “had messed up.”

When the police interviewed him, he said that
everything had been fine between him and Tania until she became romantically
involved with a man named “Junior.”
After that, “[s]he would tell [him] that she didn’t love [him]
anymore.” He told her, “[W]hat you have
done to me . . . I will not be able to forgive[,]
so . . . be ready.”

Defendant said that he bought a gun “[o]n the
street.” It did not come with bullets;
he bought bullets a day or two before the shooting.

Defendant admitted taking the gun to Tania’s
house. As he was walking over there, he
knew that, “if . . . someone was there [he] wasn’t going to shoot,”
but if Tania was “by herself,” “[he] was going to shoot her.”

When he arrived, he asked Tania to show him
receipts for the money he had given her for the baby. She said, “[O]kay, I’ll give them to you
. . . .” He then took out
the gun and shot her.

At one point, the gun “didn’t work right[.]” Defendant pulled the clip back; a bullet (or
bullets) fell out. Then he “continued
shooting . . . .”

B. The Defense Case.

Defendant testified that Tania moved out after
admitting that she had cheated on him.

Two or three weeks before the shooting, Tania
told defendant that she was dating Junior, whom she described as a gang member
who sold drugs. When defendant said that
he wanted to hit Junior, Tania told him that Junior had a gun and would kill
him.

About two weeks before the shooting, Tania
started telling defendant “how the[] sex was” with her boyfriend. She pushed him; in response, he pulled her
hair. She called the police, and he
left.

Once, with Tania’s mother’s permission, defendant
took the baby for about 15 minutes.
Tania got angry; she pushed him and “kept on hitting [him].” He pushed her back once.

Defendant denied the other asserted instances of
threats and violence.

About a week before the shooting, Junior phoned
defendant. Junior said “[t]hat he was
going to kill [defendant]” and “[t]hat he was going to be with Tania now.”

To protect himself from Junior, defendant bought
a gun “[o]n the street.” Defendant also
testified, however, that he bought the gun “about a month” before the
shooting. About two weeks before the
shooting, he bought bullets for it.

About a week before the shooting, defendant lost
his job.

On the day of the shooting, defendant brought his
gun with him in case he ran into Junior.
He asked Tania to show him receipts.
She refused. They started
arguing. Tania said “she was going to go
live with Junior. And that [defendant]
wasn’t going to see [his] daughter anymore.”
She started laughing and making fun of him. At that point, defendant testified,
“ . . . I pulled out the gun and I shot her.”

He denied intending to shoot her before he
arrived at the house. When the police
interviewed him, he said what they wanted him to say, “to make it easy, just to
get out of there” and because he felt guilty.

Tania’s mother admitted that Tania knew a man
named Junior who lived near her parents’ house.

II

THE EXCLUSION OF
EXPERT TESTIMONY

REGARDING DEFENDANT’S MENTAL
CONDITION

Defendant contends that the trial court erred by
excluding expert testimony regarding his mental condition.

A. Additional Factual and
Procedural Background.

In discovery, the defense produced a report by
Dr. Roberto Flores de Apodaca. The
People filed a motion in limine asking the trial court to preclude
Dr. Flores from testifying about defendant’s capacity to form any mental
state at the time of the crime.

As a result, the trial court held a hearing
pursuant to Evidence Code section 402.
The only witness was Dr. Flores.
Dr. Flores was a clinical psychologist. It was stipulated that he was qualified to
testify on “the psychological issues presented in this matter . . . .”

Dr. Flores had performed a psychological
evaluation of defendant.href="#_ftn1"
name="_ftnref1" title="">^[1] He found that defendant had an IQ of 83,
meaning that it was in the lowest 13 percent of the population. A low IQ “tends to make one a little more
prone to reacting [to stressors] emotionally rather than cognitively or rationally
. . . .”

Dr. Flores had not formed any opinions based
solely on defendant’s IQ. However, based
on defendant’s impoverished upbringing, lack of education, lack of training,
and limited occupational experiences, in addition to his low IQ, Dr. Flores
believed that defendant had certain “cognitive limitations.” These included a limited ability “to think
sequentially, to think cognitively, to problem-solve, to plan ahead
. . . .”

At the time of the crime, defendant was suffering
“economic distress” as well as emotional distress. He felt “abandoned,” “rejected,” and
“disdained.” These were “stressors” that
“contributed to his behavior . . . .”

Dr. Flores concluded: “The set of events surrounding this incident
. . . , in my judgment, overwhelmed his coping capabilities,
. . . and he shot his wife.”

He admitted that defendant did not have any
“mental disorder.”

He also admitted that it was “plausible” that
defendant premeditated, and that defendant “may very well have developed a
specific intent to kill . . . .”

The trial court ruled: “ . . . I’m going to
exclude the doctor’s testimony . . . . [I]t goes . . . to
irresistible impulse or the ability to control rage, which is an element that
is within the hands of the jury to make a determination . . . .”

B. Analysis.

“The trial court has broad discretion in deciding
whether to admit or exclude expert testimony [citation], and its decision as to
whether expert testimony meets the standard for admissibility is subject to
review for abuse of discretion. [Citations.]” (People
v. McDowell (2012) 54 Cal.4th 395, 426.)
“‘[A] “‘decision will not be reversed merely because reasonable people
might disagree. “An appellate tribunal
is neither authorized nor warranted in substituting its judgment for the
judgment of the trial judge.”’”
[Citation.] . . . [A] trial court does not abuse its discretion
unless its decision is so irrational or arbitrary that no reasonable person
could agree with it.’ [Citation.]” (Id.
at pp. 429-430.)

An expert may give opinion testimony only if,
among other things, the opinion is “[r]elated to a subject that is sufficiently
beyond common experience that the opinion of an expert would assist the trier
of fact . . . .” (Evid.
Code, § 801, subd. (a).) “Testimony
in the form of an opinion that is otherwise admissible is not objectionable
because it embraces the ultimate issue to be decided by the trier of
fact.” (Evid. Code, § 805.) However, “‘[e]xpert opinion is not admissible
if it consists of inferences and conclusions which can be drawn as easily and
intelligently by the trier of fact as by the witness.’ [Citations.]”
(People v. Valdez (1997) 58
Cal.App.4th 494, 506.)

Penal Code section 28, subdivision (a)
provides: “Evidence of mental disease,
mental defect, or mental disorder shall not be admitted to show or negate the
capacity to form any mental state, including, but not limited to, purpose,
intent, knowledge, premeditation, deliberation, or malice aforethought, with
which the accused committed the act.
Evidence of mental
disease, mental defect, or mental disorder is admissible solely on the
issue of whether or not the accused actually formed a required specific intent,
premeditated, deliberated, or harbored malice aforethought, when a specific
intent crime is charged.”

Penal Code section 29 provides: “In the guilt phase of a criminal action, any
expert testifying about a defendant’s mental illness, mental disorder, or
mental defect shall not testify as to whether the defendant had or did not have
the required mental states, which include, but are not limited to, purpose,
intent, knowledge, or malice aforethought, for the crimes charged. The question as to whether the defendant had
or did not have the required mental states shall be decided by the trier of
fact.”

As the Supreme Court has stated: “Expert opinion on whether a defendant had
the capacity to form a mental state that is an element of a charged offense or
actually did form such intent is not admissible at the guilt phase of a
trial. [Citation.] [Penal Code s]ections 28 and 29 permit
introduction of evidence of mental illness when relevant to whether a defendant
actually formed a mental state that is an element of a charged offense, but do
not permit an expert to offer an opinion on whether a defendant had the mental
capacity to form a specific mental state or whether the defendant actually
harbored such a mental state.” (>People v. Coddington (2000) 23 Cal.4th
529, 582, fns. omitted, overruled on unrelated grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)

Defendant relies largely on People v. Nunn (1996) 50 Cal.App.4th 1357. There, the defendant had been drinking when
he fired into a group of farmworkers, striking one of them. (Id.
at p. 1360.) The defendant
testified that he was drunk, that the men were hostile, and that he only
intended to scare them. (>Id. at p. 1361.) A defense expert testified that the defendant
had suffered psychological trauma in the Vietnam War and that this could cause
a person to overreact to stressful events.
(Id. at pp. 1362-1363,
1365, fn. 4.) However, the trial
court barred the expert from testifying that the defendant’s inebriation, as
well as his tendency to overreact, had caused him to fire “impulsively.” (Id.
at p. 1362.)

On appeal, the defendant argued that the trial
court erred by excluding the opinion that he acted impulsively. (People
v. Nunn, supra, 50 Cal.App.4th at
pp. 1361-1362.) The appellate court
found no error. It stated: “[I]t was permissible for [the expert] to
opine that appellant, because of his history of href="http://www.sandiegohealthdirectory.com/">psychological trauma, tended
to overreact to stress and apprehension.
It was permissible for him to testify such condition could result in
appellant acting impulsively under certain particular circumstances. [The expert] could have evaluated the
psychological setting of appellant’s claimed encounter with the [farmworkers]
and could have offered an opinion concerning whether that encounter was the
type that could result in an impulsive reaction from one with appellant’s
mental condition. What the doctor could
not do, and what the defense proposed he do here, was to conclude that
appellant had acted impulsively, that is, without the intent to kill, that is,
without express malice aforethought. The
court acted properly in excluding [the expert]’s opinion that appellant fired
his weapon impulsively.” (>Id. at p. 1365, fn. omitted.)

Defendant argues that the opinions proffered in
this case were like the opinions held “permissible” in Nunn. There is one crucial
distinction, however, between this case and Nunn. It must be remembered that, under Penal Code
section 28, subdivision (a), “[e]vidence of mental disease, mental defect, or
mental disorder is admissible solely on the issue of whether or not the accused
actually formed a required specific intent . . . .” In Nunn,
the expert testified that the defendant had suffered psychological trauma in
the Vietnam War. In other words, the
defendant had a mental “disease,” “defect,” or “disorder,” potentially
admissible under Evidence Code section 28.
Here, by contrast, Dr. Flores admitted that defendant did not have
any “mental disorder” or other “pathological” mental condition. Rather, his cognitive limitations arose out
of his “personality characteristics” and “intellectual characteristics.”

Defendant now claims that his “psychological
conditions” had “some pathological significance.” He also characterizes “a low IQ with judgment
impairment and associated pathology” as “a mental defect or disorder.” Once again, however, Dr. Flores agreed
that defendant’s psychological conditions did “not rise to the level of being
. . . pathological . . . .” He did not testify that defendant was
mentally retarded. (See >Atkins v. Virginia (2002) 536 U.S. 304,
308, fn. 3 [122 S.Ct. 2242, 153 L.Ed.2d 335] [threshold of mental
retardation is IQ of 70].) Rather, his
testimony was — essentially — that defendant was a slow-witted guy who had
caught some bad breaks in life and who was under a lot of stress. A lay jury would be adequately equipped to
evaluate this claim; it did not require any expert testimony.

The same factor also serves to distinguish the
other cases on which defendant relies.
For example, in People v. Cortes
(2011) 192 Cal.App.4th 873, the appellate court held that an expert should have
been allowed to testify that, as a result of posttraumatic stress disorder, an
adjustment disorder, and attachment problems, the defendant was in a
dissociative state when he killed the victim.
(Id. at
pp. 910-912.) Similarly, in >People v. McCowan (1986) 182 Cal.App.3d
1, the appellate court held that an expert was properly allowed to testify
that, due to a “major depressive episode,” including “periods of being overtly
psychotic” (id. at p. 10), the
defendant was having difficulty thinking clearly and making judgments when he
killed the victims. (>Id. at p. 13-14.) Here, defendant’s offer of proof lacked any
such evidence of any clinical disorder.

Accordingly, the provisions of Penal Code sections
28 and 29 dealing with evidence of a mental “disorder” do not apply. Their only provision that is apt is the
portion of Penal Code section 29 that states that “whether the defendant had or
did not have the required mental states shall be decided by the trier of
fact.” Otherwise, this case is governed
by the general rule that expert testimony must tend to “assist the trier of
fact . . . .” (Evid.
Code, § 801, subd. (a).) We need
not decide whether the trial court could have chosen, in its discretion, to
admit the evidence. We hold only that it
did not abuse its discretion by ruling that the mental element of the crime
could properly be left in “the hands of the jury” without the assistance of
Dr. Flores’s proposed testimony.

In arguing that the error was prejudicial,
defendant alludes to the federal constitutional standard of harmless
error. However, he never explains how
the federal Constitution was supposedly violated. We deem any claim of federal constitutional
error forfeited.

Even if not forfeited, a federal constitutional
claim would lack merit. “‘As a general
matter, the “[a]pplication of the ordinary rules of evidence . . .
does not impermissibly infringe on a defendant’s right to present a
defense.” [Citations.]’ [Citation.]
Because the trial court merely rejected some evidence concerning a
defense, and did not preclude defendant from presenting a defense, any error is
one of state law . . . .
[Citation.]” (>People v. McNeal (2009) 46 Cal.4th 1183,
1203.)

III

DEFENSE COUNSEL’S FAILURE TO
REQUEST AN INSTRUCTION

THAT PROVOCATION CAN REDUCE
THE DEGREE OF A MURDER

Defendant contends that his trial counsel
rendered ineffective assistance by failing to request a jury instruction that
provocation can reduce the degree of murder.

The jury was instructed that provocation can
reduce murder to voluntary manslaughter.
(CALCRIM No. 570.) It was also
instructed on second degree murder.
(CALCRIM Nos. 520 & 521.)
However, it was not given CALCRIM No. 522. CALCRIM No. 522, as it relates to second degree
murder, would have stated: “Provocation
may reduce a murder from first degree to second degree
. . . . The weight and
significance of the provocation, if any, are for you to decide. [¶] If
you conclude that the defendant committed murder but was provoked, consider the
provocation in deciding whether the crime was first or second degree murder.”

CALCRIM No. 522 is a “pinpoint” instruction,
meaning that the trial court is not required to give it except on request. (People
v. Rogers (2006) 39 Cal.4th 826, 877-880 [discussing CALJIC No. 8.73,
the predecessor of CALCRIM No. 522].)

“ . . . ‘In assessing claims
of ineffective assistance of trial counsel, we consider whether counsel’s
representation fell below an objective standard of reasonableness under prevailing
professional norms and whether the defendant suffered prejudice to a reasonable
probability, that is, a probability sufficient to undermine confidence in the
outcome. [Citations.] A reviewing court will indulge in a
presumption that counsel’s performance fell within the wide range of
professional competence and that counsel’s actions and inactions can be
explained as a matter of sound trial strategy.
Defendant thus bears the burden of establishing constitutionally
inadequate assistance of counsel.
[Citations.] If the record on
appeal sheds no light on why counsel acted or failed to act in the manner
challenged, an appellate claim of ineffective assistance of counsel must be
rejected unless counsel was asked for an explanation and failed to provide one,
or there simply could be no satisfactory explanation. [Citation.]’
[Citation.]” (>People v. Gamache (2010) 48 Cal.4th 347,
391.)

Defense counsel was never asked to explain his
decision not to request CALCRIM No. 522.
Thus, the issue before us is whether there could be a satisfactory
explanation for this. It could have been
a reasonable tactical decision, for two reasons.

First, the evidence of premeditation was
strong. Members of Tania’s family
testified that recently, defendant had made several threats to kill her. He had also purchased a gun. At trial, he claimed that he bought it to
protect himself from Junior. However, he
also testified that he bought it a month before the shooting, yet Tania did not
tell him about Junior until two or three weeks before the shooting, and Junior
did not threaten him until about a week before the shooting. Moreover, he told the police that he did not
buy any bullets for the gun until a day or two before the shooting. He brought the gun with him to Tania’s
house. Most strikingly, when interviewed
by the police, he admitted that he had a plan:
if he found Tania alone, he was going to shoot her; he did not mention
her laughing or making fun of him before he shot.

Second, there is a much greater difference in
punishment between second degree murder and manslaughter than there is between
first degree murder and second degree murder.
The penalty for first degree murder (absent special circumstances) is 25
years to life in prison; the penalty for second degree murder is 15 years to
life in prison. (Pen. Code, § 190,
subd. (a).) Thus, if defendant was
convicted of murder at all, regardless of the degree, he was facing the possibility
of spending the rest of his life in prison.
By contrast, the penalty for voluntary manslaughter is only three, six,
or eleven years in prison. (Pen. Code,
§ 193, subd. (a).) Defendant’s
trial counsel could have made a reasonable tactical decision to play down
provocation as a basis for second degree murder and to play it up as a basis
for voluntary manslaughter.

Defense counsel’s closing argument was consistent
with this strategy. He argued at some
length that defendant did not premeditate or deliberate. However, he also argued that the jury should
find voluntary manslaughter based on provocation rather than either first or
second degree murder.

Thus, we cannot conclude that defense counsel’s
decision not to request CALCRIM No. 522 fell below an objective standard of
reasonableness under prevailing professional norms.

IV

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS



RICHLI

J.



We
concur:





RAMIREZ

P. J.





KING

J.