P. v. Gattis























Filed 3/11/13 P. v. Gattis CA1/4

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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opinion has not been certified for publication or ordered published for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
FOUR




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THE PEOPLE, Plaintiff and Respondent, v. VANCE GATTIS, Defendant and Appellant.

A132506 (Contra Costa County Super. Ct. No. 51006154)

On
April 18, 2011, 58-year-old
Vance Gattis was convicted by a jury of second
degree murder, in violation of Penal Code section 187.href="#_ftn1" name="_ftnref1" title="">[1] As a result of his three prior convictions,
his prior state prison term, and serious felony findings, he was sentenced to
state prison for a total term of 46 years to life.

Defendant
claims that his constitutional rights
were violated by jury instructions that were contradictory, inaccurate, and
prejudicially misleading. He also argues
that he received ineffective assistance of counsel with respect to some jury
instructions and that the trial court erred in admitting irrelevant and remote
evidence of his prior domestic violence.
We disagree and affirm.

I.

FACTUAL AND PROCEDURAL

BACKGROUND

On January 5, 2010, defendant called
911 and asked for help. Defendant
reported that he was in a red Jeep, that he did not know where he was, and that
his dead girlfriend was in the car with him somewhere in Richmond. Defendant said he was “sorry” multiple times,
and he told the dispatcher many times his girlfriend was dead. The dispatcher determined defendant was at Florida
and South Seventh Streets, Richmond.

At
approximately 4:19 a.m., a Richmond
patrol officer received a dispatch about a “possibly intoxicated male” in a red
Jeep with his dead girlfriend. The
officer drove westbound on Florida
until he saw the red Jeep roll through a stop sign at about five miles per
hour, then come to a stop in the middle of the intersection. The officer saw that the driver, later
identified as defendant, was nodding off, with his head repeatedly falling
forward. The officer ordered defendant
to pull to the curb, and defendant was able to do so.

The
officer approached the Jeep, opened the driver’s door, and saw a woman lying on
her back on the front passenger floorboard.
She had blood on the top of her head and on different parts of her
clothing. After the officer asked
defendant several times who the woman was, he identified the woman as his
girlfriend, but did not provide her name.
The officer could not tell whether defendant was injured or whether the
woman was alive or dead. An ambulance
arrived, and ambulance personnel helped defendant walk to the ambulance,
because he could not walk by himself at that point. The officer retrieved defendant’s wallet from
his back pocket and determined defendant’s identification, as well as the fact
that defendant was the registered owner of the Jeep.

Another
officer saw blood spatter and fingerprints on the exterior of the Jeep and a
bottle of gin inside the car on the center console. The body of defendant’s girlfriend was
“contorted on the right front passenger floorboard.” Her knees were flexed, one arm was underneath
her, and the other arm was extended outside the car. She had a large laceration on the back of her
head, and her face, scalp, and clothes were smeared with blood. She was cold to the touch and appeared to be
in “full rigor,” according to a forensic pathologist who testified at trial. It was later determined that the victim died
from bleeding caused by multiple stab wounds.
She was stabbed seven times: just
below the clavicle, on the breastbone, the lower abdomen, the neck, and three
times in the back. The stab wound to the
breastbone punctured the victim’s left lung, and a large amount of blood around
the lung caused it to collapse.

The
victim also had blunt trauma
injuries. She had a large number of
bruises and contusions over her entire face.
The most prominent trauma was to the left side of her face, including
the temple, cheek, chin, and nasal bridge, and she had a blood clot around her
left eye. In addition, the victim had
defensive-type injuries on the backs of both hands. The victim had injuries consistent with
choking or strangulation, including abrasions, scrapes, and contusions on her
neck, with bruising in the muscle of the neck and hemorrhage bleeding in the
soft tissue, as well as ruptured small blood vessels in her eyes. The victim had a liter of blood in her chest,
which caused her heart to stop, killing her within minutes. With blood in her lungs, the victim would
have gasped for air as if she were drowning, lost the ability to breathe
properly, and made gurgling sounds as air bubbled through her blood.

A
crime scene investigator followed defendant’s ambulance to the hospital. He observed that defendant had minor
abrasions on both knees, bloodstains on his hands, and swollen knuckles. Defendant was nonresponsive to questions
until a nurse inserted a catheter, at which point he woke up. A nurse asked defendant what happened to
him. The investigator heard defendant
say that he had been in a fight with his girlfriend over her use of drugs and
the money she spent to buy drugs.
Defendant also told the nurse that his girlfriend was dead. A blood test showed that defendant’s blood
alcohol level was 0.21 percent.

Defendant
and the victim lived together in a mobile home, which police searched pursuant
to a warrant. They found a bottle of gin
and blood on the floor in the kitchen area and blood spatter in the parking
area outside the trailer. The blood
spatter was located on the ground, on a white car parked in the area, and on
some gravel and dirt areas. The blood
spatter on the car was downward drops, while the spatter in the parking area
traveled in a “distinctly westward direction and a northward direction, with an
abrupt change in direction.” There were
also three separate areas of blood smear, which contained denim fabric and shoe
impressions. The blood trail led away from
the trailer and terminated near the parking area next to the trailer. The police also found an upper denture in the
blood spatter outside the trailer, and the victim did not have teeth or
dentures in her mouth when her body was processed by the police.

Police
interviewed defendant at 10:45 p.m.
on January 5, 2010. The interview was recorded and played for the
jury. During the interview, defendant
admitted that he “cut her [the victim] with the knife [¶] . . .
[¶] like a camp knife.” Police did not find
a camp or pocket knife during their search of defendant’s trailer. During the interview, defendant told police
that he hurt his best friend, that he felt terrible, and that he was really
sorry about what happened. According to
defendant, he fell asleep after drinking alcohol, and was woken up by the
victim. He discovered that $400 was
missing from his coat pocket. He
protested when the victim said she wanted to get “rock,” but then they both
left to “pick some up.” When pressed
about what happened to the victim, defendant said “I don’t know what happened,”
but he recalled that he “stuck her in the car” and that he “got scared.” She was down on her knees, moaning and
crawling, and trying to whisper, and defendant told her to “[h]old on. Hold on.” Defendant heard the victim wheezing, and he
heard her stop breathing. Defendant said
that he did not remember calling 911 and that he hated himself for drinking a
lot of alcohol.

Defendant
also told officers his knuckles were bruised and swollen because he fell down
his stairs. His knees were bruised. He did not remember hitting the victim with
his fists, but he recalled cutting her with his knife. When asked where he put the knife, defendant
said the kitchen sink. When told there
was no camp or pocket knife in the trailer, defendant claimed he did not throw
anything away. Defendant acknowledged
that he and the victim “got in a . . . scuffle” after he
realized she had taken his money, but he did not recall if he punched her. When asked why he got so upset that he
actually stabbed the victim over “400 bucks,” defendant responded that he was
“just getting tired of getting, you know—you know, she’s got a habit of picking
up money and stuff.” Defendant said he
never thought it would “go this far.”
Defendant did not remember much, but he knew that the victim was not
running when he stabbed her. She was
facing him and yelling for a neighbor.

At
trial, defendant did not dispute killing the victim, but instead claimed that
he lacked the requisite intent to commit murder. A psychiatrist who evaluated defendant about
four months after the murder testified for the defense and opined that
defendant was gradually losing his memory due to a form of dementia. The memory loss was also likely caused by a
head injury, toxins to the brain from a long history of heavy drinking and
cocaine use, and medical problems, including diabetes, high blood pressure and
cholesterol, and coronary artery disease.
When cocaine and alcohol are used together, the toxin and insult to the
brain make the situation worse, according to the psychiatrist. A person under the influence of cocaine and
alcohol does not think clearly or rationally.
The combination of drugs and alcohol can impede concentration, affect
memory, and destroy logical thinking.
Thoughts are disturbed, chaotic, illogical, irrational, unrealistic, and
delusional, and behavior can be wild, frenzied, unaware, disturbed, and out of
control.

Based
on his examination of defendant and his review of reports and records, the psychiatrist
opined that at the time of the crime, defendant was in a delirious state
related to an alcohol blackout.
Delirium, which is a recognized mental health diagnosis, is a sudden
change in consciousness, and it involves severe mood changes, difficulty
controlling behavior, agitation, rage, and loss of control and focus. Delirium can last for hours or even
days. The state can end fairly quickly,
and the person will have no memory of what happened. Similarly, a person in an alcoholic blackout
can operate and do things, but have no memory of it. Delirium is a condition where the brain
becomes disturbed and shuts down, and there is a severe disorganization of
brain function. A person cannot act
clearly or in a rational manner, and often has no memory of what happened
during the delirious period. There are
many causes for delirium, including the use of alcohol and cocaine. A person in a delirious state probably cannot
talk sensibly with anyone or accomplish a complicated task. When a person has a motive to do something
and carries it out, that behavior is unimpaired and goal-directed, which is
inconsistent with delirium. Also,
stabbing a person seven times is goal-directed behavior as long as the stabber
is conscious enough to know what he is doing, according to the psychiatrist.

The
jury convicted defendant of second degree murder, and this timely appeal
followed.

II.

DISCUSSION

>A. >The Jury Instructions.

Defendant argues,
for the first time on appeal, that the instructions on unconsciousness were prejudicially
conflicting, irreconcilable, and ambiguous.href="#_ftn2" name="_ftnref2" title="">[2] Defendant additionally argues that trial
counsel was ineffective for failing to request a third involuntary manslaughter
instruction based on criminal negligence
and mental disease, defect, or disorder exacerbated by ingestion of drugs or
alcohol.

1.
General legal principles.

We
begin with the well-known principle in criminal law jurisprudence that a trial
court must instruct the jury on all general principles of law relevant to the
issues of the case, including defenses and lesser included offenses when they are
supported by substantial evidence. (>People v. Rogers (2006) 39 Cal.4th 826,
866-867; People v. Oropeza (2007) 151
Cal.App.4th 73, 78.) “[S]ubstantial
evidence means evidence which is sufficient to deserve consideration by the
jury and from which a jury composed of reasonable persons could conclude the
particular facts underlying the instruction existed. The trial court is not required to present theories
the jury could not reasonably find to exist.”
(Oropeza at p. 78.) The appellate court reviews independently the
question whether the trial court erroneously failed to instruct on defenses and
lesser included offenses. (>Ibid.)

The
jury in this case was instructed on href="http://www.sandiegohealthdirectory.com/">murder, manslaughter,
intoxication, mental deficiencies, and unconsciousness. Murder is the unlawful killing of a human
being with malice aforethought, which can be express or implied. Express malice is the intent to unlawfully
kill. (People v. Perez (2010) 50 Cal.4th 222, 233, fn. 7.) Implied malice is a “ ‘conscious
disregard for life.’ ” (>People v. Blakeley (2000) 23 Cal.4th 82,
87.) Specifically, malice is implied
“when a killing results from an intentional act, the natural consequences of
which are dangerous to human life, and the act is deliberately performed with
knowledge of the danger to, and with conscious disregard for, human life.” (People v.
Cook (2006) 39 Cal.4th 566, 596.)

The
unlawful killing of a human being without malice is manslaughter. (People
v. Rios (2000) 23 Cal.4th 450, 460.)
A defendant may be guilty of voluntary manslaughter if he or she acts
with intent to kill or conscious disregard for life, but, as a result of being
provoked, kills in a sudden quarrel, the heat of passion, or in unreasonable
self-defense. (People v. Blakeley, supra, 23 Cal.4th at pp. 87-89.) A person commits involuntary manslaughter
when he or she kills another without any intent to kill and without conscious
disregard of the risk to human life. The
mental state associated with involuntary manslaughter is href="http://www.fearnotlaw.com/">criminal negligence. (People
v. Butler (2010) 187 Cal.App.4th 998, 1007.)

Section 26
exempts from criminal responsibility “ ‘[p]ersons who committed the act
charged without being conscious thereof.’ ” (People
v. Chaffey (1994) 25 Cal.App.4th 852, 855.) However, unconsciousness caused by voluntary
intoxication is governed by former section 22 (now section 29.4, hereafter
referred to as § 22, as numbered at time of trial), rather than
section 26. (People v. Carlson (2011) 200 Cal.App.4th 695, 705 (>Carlson).) Pursuant to section 22, evidence of
voluntary intoxication is admissible solely on the issue of whether or not the
defendant actually formed a required specific intent, or, when charged with
murder, whether the defendant premeditated, deliberated, or harbored express
malice aforethought. (>People v. Turk (2008) 164 Cal.App.4th
1361, 1370-1371.) Section 22
precludes evidence of voluntary intoxication to negate implied malice. (Carlson,
supra, at p. 706.) Similarly, pursuant to section 28,
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, or
whether he premeditated, deliberated, or harbored malice aforethought, when a
specific-intent crime is charged. If a
defendant unlawfully kills without express malice due to voluntary intoxication
but still acts with implied malice, which voluntary intoxication cannot negate,
the defendant is guilty of second degree murder. (Carlson,
supra, at p. 707.) If, however,
a state of unconsciousness is induced by voluntary intoxication, both express
and implied malice are refuted, and the defendant is guilty of involuntary
manslaughter. (People v. Ochoa (1998) 19 Cal.4th 353, 423-424.)

Defendant
argues that there is a structural defect in a CALCRIM instruction on
unconsciousness because involuntary manslaughter based on criminal negligence
was missing, and because other instructions on unconsciousness were confusing,
contradictory, and ambiguous. We shall,
therefore, set forth the basic principles from which the instructions on
involuntary manslaughter based on unconsciousness are derived.

2. CALCRIM
No. 626.

Consistent
with defendant’s theory that he did not act with intent to kill because of his
voluntary intoxication, the jury was instructed, at his request, with CALCRIM
No. 626 (Voluntary Intoxication Causing Unconsciousness: Effects on Homicide Crimes), as follows: “Voluntary intoxication may cause a person to
be unconscious of his or her actions. A
very intoxicated person may still be capable of physical movement but may not
be aware of his or her actions or the nature of those actions. [¶] A person is voluntarily intoxicated
if he or she becomes intoxicated by willingly using any intoxicating drug,
drink, or other substance knowing that it could produce an intoxicating effect,
or willingly assuming the risk of that effect.
[¶] When a person voluntarily
causes his or her own intoxication to the point of unconsciousness, the person
assumes the risk that while unconscious he or she will commit acts inherently
dangerous to human life. If someone
dies as a result of the actions of a person who was unconscious due to
voluntary intoxication, then the killing is involuntary manslaughter. [¶] Involuntary manslaughter has been
proved if you find beyond a reasonable doubt that: [¶] 1. The defendant killed without
legal justification or excuse;
[¶] 2. The defendant did not act with the intent to kill;
[¶] 3. The defendant did not act with a conscious disregard for human
life; [¶] AND [¶] 4. As a result of voluntary intoxication, the
defendant was not conscious of his actions or the nature of those actions. [¶] The People have the burden of
proving beyond a reasonable doubt that the defendant was not unconscious. If the People have not met this burden, you
must find the defendant not guilty of (murder/ or voluntary
manslaughter).” (Italics added.)

Despite
requesting the instruction below and failing to object to the language of the
instruction italicized above, defendant argues for the first time on appeal
that CALCRIM No. 626 is “seriously imprecise and unfortunate,” and claims
that the problem with the language regarding assumption of the risk is
“obvious.” Defendant believes the
instruction should include criminal negligence.

Defendant
argues that because CALCRIM No. 626 told the jury that when a person
drinks to the point of unconsciousness the person assumes the risk that while
unconscious he will commit acts inherently dangerous to human life, it
contradicts CALCRIM No. 520, also given in this case, in which implied
malice was defined in terms of actual knowledge of dangerousness and conscious
disregard for human life. Defendant
argues that CALCRIM No. 626 should instruct the jury that under such
circumstances (upon a finding that defendant was voluntarily intoxicated to the
point of unconsciousness), the law implies only criminal negligence. In support of this argument, defendant relies
on People v. Graham (1969) 71 Cal.2d
303, which held that the trial court committed reversible error by not
instructing the jury on the elements of involuntary manslaughter, despite the
fact that the defendant in that case had introduced evidence that he was
unconscious due to voluntary intoxication.
(Id. at p. 316.) The court stated in a footnote that on
remand, the jury should be given instructions that are substantially similar to
the ones given in this case, with an additional instruction that
“ ‘[u]nder such circumstances, the law implies criminal
negligence.’ ” (>Id. at p. 317, fn. 4.) Such an instruction was unnecessary here,
because, unlike in Graham, the jury
was specifically instructed that if it found that defendant was unconscious due
to voluntary intoxication, “then the killing is involuntary manslaughter.”href="#_ftn3" name="_ftnref3" title="">[3] (Italics added.)

Moreover,
defendant’s argument is not supported by the CALCRIM advisory committee notes,
which state: “The committee has chosen
not to include the phrase ‘criminal negligence is deemed to exist’
because the committee concluded that this unnecessarily complicates the issue
for the jury.” (Judicial Council of
Cal., Crim. Jury Instns. (2012) Bench Notes to CALCRIM No. 626, p. 437.) The courts have long recognized that a
reference to criminal negligence should be omitted from jury instructions where
it is not an issue in the particular case. (People v. Lara (1996)
44 Cal.App.4th 102, 110.) At trial,
defendant did not argue that criminal negligence was an issue, and the focus of
arguments at trial and of defendant’s expert were based on delirium, a form of
unconsciousness.

In
addition to the alleged structural problems that defendant raises regarding
CALCRIM No. 626, he also claims there is a conflict between that
instruction and CALCRIM No. 3425href="#_ftn4" name="_ftnref4" title="">[4] that added to the jury’s
confusion as to the legal role of unconsciousness. According to defendant, CALCRIM No. 626
informed the jury that a death caused by an unconscious person is involuntary
manslaughter where the unconsciousness is based on voluntary intoxication. CALCRIM No. 3425, on the other hand, informed
the jury that an act by an unconscious person is not a crime. We disagree with that analysis and see no
conflict.

The
instructions clearly explained the difference between legal unconsciousness
caused by delirium, which excuses homicide (CALCRIM No. 3425), and
unconsciousness caused by voluntary intoxication, which does not excuse
homicide (CALCRIM No. 626). The
instructions explained the effects of unconsciousness and voluntary
intoxication on the various crimes of homicide.
(Carlson, supra, 200 Cal.App.4th at p. 703.) As we noted above, section 26 does not
advance defendant’s arguments here, and such arguments overlook a clarifying
amendment to section 22 enacted 18 years ago.

In
1995, the California Legislature amended section 22 so as to preclude
evidence of voluntary intoxication to negate implied malice. “To the extent that a defendant who is
voluntarily intoxicated [but not unconscious] unlawfully kills with implied
malice, the defendant would be guilty of second degree murder.” (Carlson,
supra, 200 Cal.App.4th at
p. 707.) When it amended Penal Code
section 22, the California Legislature eliminated the confusion which arose
when involuntary manslaughter was used as a defense in an implied malice case
and “bolstered the deterrent effect of the statute by underscoring the
long-standing principle in California law
that voluntary intoxication is no excuse for crime.” (People
v. Timms (2007) 151 Cal.App.4th 1292, 1302.) In sum, we find no error with respect to
CALCRIM No. 626.

3. CALCRIM No. 3425.

CALCRIM
No. 3425, as given in this case, states:
“The defendant is not guilty of murder or involuntary manslaughter if he
acted while legally unconscious. Someone
is legally unconscious when he or she is not conscious of his or her
actions. [Someone may be unconscious
even though able to move.]
[¶] Unconsciousness may be caused by an epileptic seizure or
involuntary intoxication or sleepwalking or delirium.^{[href="#_ftn5" name="_ftnref5" title="">[5]]} [¶] The People must prove beyond a
reasonable doubt that the defendant was conscious when he acted. If there is proof beyond a reasonable doubt
that the defendant acted as if he were conscious, you should conclude that he was conscious. If, however, based on all the evidence, you
have a reasonable doubt that he . . . was conscious, you must
find him not guilty.” (Italics added.)

Defendant
contends that the above italicized language of CALCRIM No. 3425 misstated
the “ ‘presumption of consciousness’ principle.” Defendant argues the instruction should have
stated “ ‘should presume’ ” (which permits a finding of unconsciousness despite the appearance of
consciousness), rather than “ ‘should conclude’ ” (which, according
to defendant, impermissibly compels a
finding of consciousness whenever there is an appearance of
consciousness). In essence defendant
argues—again, for the first time on appeal—that the instruction is ambiguous and
“potentially confusing.” Defendant
suggests the last sentence from CALJIC 4.31 be imported as a qualifier after
the italicized portion of CALCRIM 3425, above, as follows: “unless
from all the evidence you have a reasonable doubt that the defendant was in
fact conscious at the time of the alleged crime.” (Italics omitted.)

Respondent
claims that defendant’s argument was specifically rejected by the California
Supreme Court in People v. Babbit (1988)
45 Cal.3d 660. This overstates the
holding, as the instruction at issue in Babbit
was CALJIC No. 4.31, and the structural ambiguity complained of here was
not specifically addressed in Babbit. Nevertheless, the Babbit court concluded that the presumption of the defendant’s
consciousness at the time of the crime did not impermissibly lighten the
prosecution’s burden of proving the elements of murder because consciousness
was an affirmative defense, not an element of the crime. (Babbit
at pp. 689-696.) The instruction
did little more than guide the jury as to how to evaluate evidence bearing on
the defendant’s consciousness, and the instructions taken as a whole clearly
established that the prosecution had the burden of proving beyond a reasonable
doubt not only that the defendant appeared to be conscious, but also that he in
fact was conscious. (>Id. at p. 696.)

In
defendant’s reply, he directs this court to a recent Third District decision
which concluded that CALCRIM No. 3425 is “potentially confusing and should be modified.” (People
v. Mathson (2012) 210 Cal.App.4th 1297, 1317 (Mathson), italics added.)
The Mathson court recommended,
as defendant does on appeal, that CALCRIM No. 3425 be modified to state
that jurors should conclude a defendant was conscious “ ‘>unless’ ” (as opposed to “ ‘[i]f’ ”) from all the evidence
they have a reasonable doubt that he was in fact conscious, because
“ ‘[i]f’ ” is not the same as “ ‘unless,’ ” and might be
improperly interpreted to mean a jury “is only to consider whether there is
reasonable doubt based on the other evidence if it finds that a defendant acted
as if he was not conscious.” (>Mathson at p. 1323, original
italics.) The court also concluded that
the instruction was potentially confusing because it directs jurors to find a
defendant not guilty if they find he was unconscious, whereas that is not the
case where a defendant is unconscious due to voluntary intoxication. (Ibid.)href="#_ftn6" name="_ftnref6" title="">[6]

Even
assuming arguendo that CALCRIM No. 3425 might arguably be “potentially
confusing,” there is no indication that a more perfect instruction on the issue
of unconsciousness would have led to a different result in this case. Defendant argues that there was a “subtle
issue of unconsciousness” that was “squarely before the jury,” and poses the
following hypothetical question: “Was
[defendant’s] delirium with unconsciousness, or was this delirium with consciousness?” He argues that the cited instructional flaws
“precluded a trustworthy answer to that question.” We disagree.
There was abundant evidence that defendant had the legally requisite
consciousness, as the jury found when convicting him of second degree murder,
and a different jury instruction was not warranted in those circumstances.

In
sum, we conclude that the instructions given in this case, taken as a whole,
properly instructed the jury as to the potential legal effect of either
voluntary intoxication, or unconsciousness caused by a mental condition
(delirium) or involuntary intoxication.
The jury rejected defendant’s defense that he was unconscious for any
reason at the time of the killing, and, thus, he had the requisite express or
implied malice. There was ample evidence
supporting the jury’s findings, and therefore we find no reversible error in
connection with the jury’s instructions.

4. Trial
counsel was not ineffective.

The standard of review
for an ineffective assistance of counsel claim is well settled. A criminal defendant has both a federal and
state constitutional right to the effective assistance of counsel. To establish a claim of incompetence of
counsel, a defendant must establish that counsel’s representation fell below an
objective standard of reasonableness and that it is reasonably probable that,
but for counsel’s error, the result of the proceeding would have been
different. (Strickland v. Washington (1984) 466 U.S. 668, 686-688, 694-695 (>Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 215-218; see U.S. Const.,
6th & 14th Amends.; Cal. Const., art. I, § 15; People v. Benavides (2005) 35 Cal.4th 69, 92-93.) To prevail, a defendant must establish
incompetence of counsel by a preponderance of evidence. (Ledesma at p. 218.) As
an ineffective assistance of counsel claim fails on an insufficient showing of
either element, a court need not decide the issue of counsel’s alleged
deficiencies before deciding if prejudice occurred. (People v.
Rodrigues (1994) 8 Cal.4th 1060, 1126.)

Prejudice
must
be established as a demonstrable reality, not simply speculation as to the
effect of the error or omission of counsel.
(In re Clark (1993) 5 Cal.4th
750, 766.) In applying these principles,
“a court must indulge a ‘strong presumption’ that counsel’s conduct falls
within the wide range of reasonable professional assistance because it is all
too easy to conclude that a particular act or omission of counsel was
unreasonable in the harsh light of hindsight.”
(Bell v. Cone (2002) 535 U.S.
685, 702.) Accordingly, “a court must
‘view and assess the reasonableness of counsel’s acts or
omissions . . . under the circumstances as they stood at the
time that counsel acted or failed to act.’ ” (In re
Scott (2003) 29 Cal.4th 783, 812.)

The
tactical decisions of a trial attorney are afforded great deference. (People
v. Padilla (1995) 11 Cal.4th 891, 936, overruled on a different ground in >People v Hill (1998) 17 Cal.4th
800, 823, fn. 1.) “ ‘[I]n a
painstaking search of any record, a [team of] zealous appellate counsel can
find areas in which [they] would quibble with trial counsel.’ ” (People
v. Bolin (1998) 18 Cal.4th 297, 314.)
“The relevant inquiry under Strickland
is not what defense counsel could have pursued, but rather whether the
choices made by defense counsel were reasonable.” (Babbitt
v. Calderon (9th Cir. 1998) 151 F.3d 1170, 1173.)

As
to this claim, defendant’s instructional argument is that “[t]his was,
reasonably viewed, an ‘implied malice’ case.
CALCRIM [Nos.] 3428 and 580 were critical instructions and counsel’s
failure to request them was indefensible.”

CALCRIM
No. 3428 (Mental Impairment:
Defense to Specific Intent or Mental State (Pen. Code, § 28))
states, in pertinent part: “You have
heard evidence that the defendant may have suffered from a mental (disease[,]/
[or] defect[,]/ [or] disorder). You may
consider this evidence only for the limited purpose of deciding whether, at the
time of the charged crime, the defendant acted [or failed to act] with the
intent or mental state required for that crime.
[¶] The People have the burden of proving beyond a reasonable doubt that
the defendant acted [or failed to act] with the required intent or mental
state” required for that crime.

CALCRIM
No. 580 (Involuntary Manslaughter:
Lesser Included Offense (Pen. Code, § 192(b))) states, in pertinent
part: “When a person commits an unlawful
killing but does not intend to kill and does not act with conscious disregard
for human life, then the crime is involuntary manslaughter. [¶] The difference between other
homicide offenses and involuntary manslaughter depends on whether the person
was aware of the risk to life that his or her actions created and consciously
disregarded that risk. An unlawful
killing caused by a willful act done with full knowledge and awareness that the
person is endangering the life of another, and done in conscious disregard of
that risk, is voluntary manslaughter or murder.
An unlawful killing resulting from a willful act committed without
intent to kill and without conscious disregard of the risk to human life is
involuntary manslaughter. [¶] The
defendant committed involuntary manslaughter if: [¶] 1. The defendant committed (a
crime/ [or] a lawful act in an unlawful manner); [¶] 2. The defendant
committed the (crime/ [or] act) with criminal negligence; [¶] AND
[¶] 3. The defendant’s acts unlawfully caused the death of another
person.” The instruction further
provides: “Criminal negligence involves
more than ordinary carelessness, inattention, or mistake in judgment. A person acts with criminal negligence
when: [¶] 1. He or she acts in
a reckless way that creates a high risk of death or great bodily injury;
[¶] AND [¶] 2. A reasonable person would have known that acting
in that way would create such a risk.”
(Italics omitted.)

Instead
of the above two instructions that defendant’s counsel now suggests,
defendant’s trial counsel asked the court to instruct with CALCRIM 3425, as set
forth above. This instruction informed
the jury that a defendant is not guilty of murder or involuntary manslaughter
if he acted while legally unconscious (not caused by voluntary
intoxication). Trial counsel
specifically asked the court to add the word “delirium” in a blank space left
at the end of the standard sentence that states: “Unconsciousness may be caused
by . . . an epileptic seizure [or] involuntary intoxication or
sleepwalking [or] _______.” This
request—which was granted (ante,
fn. 5)—was based on the testifying psychiatrist’s opinion that at the time
of the crime, defendant was in a delirious state related to an alcoholic
blackout.

A
verdict of involuntary manslaughter is warranted where the defendant
demonstrates that because of mental illness, he did not form the intent to kill
unlawfully (i.e., did not have malice aforethought). (People
v. Rogers (2006) 39 Cal.4th 826, 884.)
Since the jury was so instructed using CALCRIM No. 3425, trial
counsel did not render ineffective assistance.
While appellate counsel may have asked for different instructions
(Nos. 3428 and 580), trial counsel’s theory of the case was
unconsciousness based on delirium, and the jury was properly instructed
according to that theory. (>People v. Hughes (2002) 27 Cal.4th 287,
345.) Defendant’s argument now is that
there was no way to know if the delirium caused consciousness or
unconsciousness unless CALCRIM Nos. 3428 and 580 rather than No. 3425
were given. We disagree. Trial counsel may have concluded this
argument could undercut the unconscious delirium theory of the defense set
forth in No. 3425. But even
allowing for the wisdom of hindsight, criminal negligence (as an alternate form
of involuntary manslaughter based on delirium) was never discussed by the court
and parties during the discussion on jury instructions because there was no
factual basis for it.

Respondent
relies on several key facts to show that there was no evidence warranting an
instruction on criminal negligence and that the evidence clearly established
that defendant acted with malice, and we agree with the Attorney General’s
analysis: defendant stabbed the victim
seven times, beat her until she had bruises and contusions over her entire
face, and choked her until small blood vessels ruptured in her eyes. Respondent argues that defendant killed the
victim because he was tired of her taking his money for drugs. Respondent suggests that since defendant was
conscious enough to recall details of his conduct, conscious enough to recall
the reason for his conduct, and conscious enough to dispose of the murder
weapon when he was finished, criminal negligence cannot be supported on any
theory. Respondent concludes that
“[s]ince the conduct underlying the charge did not include a misdemeanor, a
lawful act, or a noninherently dangerous felony, involuntary manslaughter
instructions based on a theory of criminal negligence were not warranted in
this case. Specifically, in light of the
number and severity of injuries inflicted, defendant did not engage in
misdemeanor or noninherently dangerous activity, much less commit a lawful act
without due caution and circumspection.
(People v. Garcia (2008) 162
Cal.App.4th 18, 33).” We agree that
because there was no evidence from which the jury could find that defendant
acted in a manner that was merely criminally negligent, defendant’s argument is
unfounded. (People v. Williams (2001) 26 Cal.4th 779, 788.)

“ ‘The
correctness of jury instructions is to be determined from the entire charge of
the court, not from a consideration of parts of an instruction or from a
particular instruction.’ ” (>People v. Harrison (2005) 35 Cal.4th
208, 252.) Here, the trial court and
both counsel treated mental disease, voluntary intoxication, and
unconsciousness as one issue, because defendant’s expert testified that at the
time of the crime, defendant was in a delirious state related to an alcohol
blackout. Since the instructions on
voluntary intoxication, delirium, and unconsciousness afforded defendant a full
consideration of his defense as it was presented at the trial, counsel’s
representation did not fall below an objective standard of reasonableness under
prevailing professional norms. (>People v. Carter (2003) 30 Cal.4th 1166,
1211.) Defendant likewise cannot
demonstrate prejudice, because even had the jury been instructed on other
involuntary manslaughter theories of criminal negligence, there is no
“reasonable probability” that it would have chosen another option. (People
v. Breverman (1998) 19 Cal.4th 142, 177.)

B. >No Error
to Admit Evidence of Defendant’s Prior Domestic Violence.

1. Background.

Over defendant’s objection, the court allowed the
testimony of defendant’s former girlfriend under Evidence Code section
1109. This included: that she dated and lived with defendant in
1999; that defendant assaulted her on two occasions during arguments; that on
August 14, 1999, defendant assaulted her with a belt and then choked her until
she released bodily fluids and lost consciousness; that on November 9, 1999,
defendant punched the girlfriend in the face with his closed fist between five
and seven times; that the girlfriend suffered a black eye and contusions to her
nose; that on March 19, 2001, defendant was convicted of two counts of
inflicting corporal injury on her resulting in a traumatic condition, and one
count of making criminal threats of death or great bodily injury and causing
her to be in sustained fear for her safety.
Defendant was sent to state prison for 12 years.

Respondent
also sought to admit into evidence that in 1980 defendant committed an assault with intent to commit
rape and that in 1990 defendant was convicted for corporal injury to a spouse. The court excluded that evidence.href="#_ftn7" name="_ftnref7" title="">[7]

2. Analysis.

Defendant
argues that the trial court erred in admitting evidence of his domestic
violence in 1999 against a former girlfriend.
Specifically, defendant argues the evidence was too remote and
irrelevant in a trial with issues concerning intoxication, dementia, and
delirium. The appellate court reviews a
challenge to a trial court’s decision to admit evidence pursuant to Evidence
Code section 1109 for abuse of discretion.
(People v. Johnson (2010) 185
Cal.App.4th 520, 531 (Johnson).)

Evidence
Code section 1109 states, in relevant part, that “in a criminal action in
which the defendant is accused of an offense involving domestic violence,
evidence of the defendant’s commission of other domestic violence is not made
inadmissible by Section 1101 if the evidence is not inadmissible pursuant
to Section 352.” (Evid. Code,
§ 1109, subd. (a)(1).)
Evidence Code section 352, in turn, provides: “The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability
that its admission will (a) necessitate undue consumption of time or
(b) create substantial danger of undue prejudice, of confusing the issues,
or of misleading the jury.” “By its
incorporation of section 352, section 1109, subdivision (a)(1) makes
evidence of past domestic violence inadmissible only if the court determines
that its probative value is ‘substantially outweighed’ by its prejudicial
impact.” (Johnson, supra, 185 Cal.App.4th
at p. 531.) The trial court has
broad discretion “ ‘in assessing whether [the] prejudicial effect [of
evidence] outweighs its probative value.’ ” (People
v. Jones (2011) 51 Cal.4th 346, 373, quoting People v. Horning (2004) 34 Cal.4th 871, 900.)

“ ‘ “The principal factor
affecting the probative value of an uncharged act is its similarity to the
charged offense.” ’ ” (>Johnson, supra, 185 Cal.App.4th at
pp. 531-532, quoting People v.
Hollie (2010) 180 Cal.App.4th 1262, 1274.)
Section 1109 was intended to make admissible a prior incident
“similar in character to the charged domestic violence crime, and which was
committed against the victim of the charged crime or another similarly situated
person.” (Assem. Com. on Public Safety,
Analysis of Sen. Bill No. 1876 (1995-1996 Reg. Sess.) June 25, 1996, p. 5
(Assem. An. of Sen. Bill 1876).) Thus,
the statute reflects the legislative judgment that in domestic violence cases,
as in sex crimes, similar prior offenses are “uniquely probative” of guilt in a
later accusation. (People v. Britt (2002) 104 Cal.App.4th 500, 505-506.) This suggests a psychological dynamic not
necessarily involved in other types of crimes.
(People v. Hoover (2000)
77 Cal.App.4th 1020, 1027.)

“ ‘The propensity inference is
particularly appropriate in the area of domestic violence because on-going
violence and abuse is the norm in domestic violence cases. Not only is there a great likelihood that any
one battering episode is part of a larger scheme of dominance and control, that
scheme usually escalates in frequency and severity. Without the propensity inference, the
escalating nature of domestic violence is likewise masked.’ ” (Johnson,
supra, 185 Cal.App.4th at p. 532, fn. 8.)

Considering a related statute
permitting the admission of prior sex offenses, the California Supreme Court
outlined factors for a trial court to consider when weighing the probative
value and prejudicial effect of prior offense evidence: “[the other offense’s] nature, relevance, and
possible remoteness, the degree of certainty of its commission and the
likelihood of confusing, misleading, or distracting the jurors from their main
inquiry, its similarity to the charged offense, its likely prejudicial impact
on the jurors, the burden on the defendant in defending against the uncharged
offense, and the availability of less prejudicial alternatives to its outright
admission, such as admitting some but not all of the defendant’s other sex
offenses, or excluding irrelevant though inflammatory details surrounding the
offense.” (People v. Falsetta (1999) 21 Cal.4th 903, 917; Evid. Code,
§ 1108.)

Defendant’s trial counsel argued
that the evidence was too remote, irrelevant on the issue of intent to kill,
and prejudicial pursuant to Evidence Code section 352. The prosecutor argued that the evidence was
not too remote since defendant had been incarcerated for domestic violence for
22 of the last 30 years. Counsel also
argued that the evidence was extremely probative on the issue of intent: “The fact that the defendant has a very
strong demonstrated history of abuse towards women, I think, is highly
probative for the jury’s determination in this case.”

The trial court excluded defendant’s
1980 assault with intent to commit rape because it was too remote. The court also excluded a 1990 conviction for
corporal injury to a spouse. The court
allowed the 1999 assaults on the former girlfriend as probative and admissible
under Evidence Code section 1109.
The court analyzed these incidents under Evidence Code section 352,
and concluded the priors were relevant and not too remote.

Evidence Code section 1109,
subdivision (e) establishes a presumption that conduct more than
10 years prior to the current offense is inadmissible unless the court
determines that admission is in the interest of justice. (Johnson,
supra, 185 Cal.App.4th at
p. 539.) However, “it sets a
threshold of presumed inadmissibility, not the outer limit of
admissibility . . . and vests the court with substantial
discretion . . . .”
(Ibid.) The time between the prior crimes and present
crime was 10 years and two months, which barely missed the 10-year mark. Also, as argued by respondent, “the prior
acts were recent when you toll the amount of time between the incidents [and]
the time [defendant] spent in prison.”
We conclude that defendant’s prior acts of domestic violence which
occurred in November 1999 were not too remote in time from his present crime,
which occurred during the first week of January 2010.

Furthermore, “the passage of time
generally goes to the weight of the evidence, not its admissibility.” (People
v. Hernandez (2011) 200 Cal.App.4th 953, 968.) Even a 30-year gap between offenses is not
too remote when the prior and current offenses are “ ‘remarkably
similar.’ ” (Ibid.) The offenses in this
case were remarkably similar, in that defendant beat and choked two girlfriends
during arguments. After considering all
the arguments and weighing the factors, the court excluded a 1980 incident and
a 1990 conviction for domestic violence. There is nothing in this record to suggest
anything less than a careful weighing of the requisite factors in the exercise
of the trial court’s discretion.

Nevertheless, even if the trial
court erred in admitting evidence of defendant’s prior domestic violence
pursuant to Evidence Code sections 1109 and 352, the error does not compel
reversal as it is not reasonably probable that the result at trial would have
been different without the prior offense evidence. There is no question that defendant killed
the victim. The only question was
whether he was unconscious or delirious when he did it. As noted above, the evidence clearly
established that defendant was not unconscious or delirious, but instead acted
with malice. Defendant’s argument now
that the Evidence Code section 1101 issues of intent and motive were not in
dispute at trial (so that the priors are irrelevant on intent) is without
merit. Although defendant admitted that
he killed the victim, he did not admit that he killed her while conscious and
angry that she took his money.

III.

DISPOSITION

The judgment is affirmed.











_________________________

Baskin,
J.*





We concur:





_________________________

Ruvolo, P. J.





_________________________

Rivera, J.









*
Judge of the Contra Costa Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.