People v. Dorsey CA2/2 ( 2015 )

Filed 3/10/15 P. v. Dorsey CA2/2
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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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B252126
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA083947)
v.
SHERMAN DORSEY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Stan Blumenfeld, Judge. Affirmed.
Emry J. Allen, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney
General, Scott A. Taryle and Pamela C. Hamanaka, Deputy Attorneys General, for
Plaintiff and Respondent.
_________________________
Sherman Dorsey (Dorsey) was charged with the murder of Gina Reano (Gina)
(count 1: Pen. Code, § 187, subd. (a))1 and the attempted murder of Grace Reano (Grace)
(count 2: §§ 664 & 187, subd. (a)). As to both charges, it was alleged that he personally
used a deadly and dangerous weapon (§ 12022, subd. (b)(1)). With respect to the
attempted murder, it was alleged that the offense was committed willfully, deliberately,
and with premeditation (§ 664, subd. (a)), and that Dorsey personally inflicted great
bodily injury upon Grace (§12022.7, subd. (a)).
A jury found Dorsey guilty of the second degree murder of Gina and the attempted
voluntary manslaughter of Grace. It found true that he personally used a deadly and
dangerous weapon in both crimes, and that he inflicted great bodily injury upon Grace.
The trial court sentenced Dorsey to state prison for 21 and a half years to life, calculated
as follows: for the second degree murder of Gina, he was sentenced to 15 years to life,
plus one year for the use of a deadly and dangerous weapon; for the attempted voluntary
manslaughter of Grace, he was sentenced to the low term of 18 months, plus three years
for the great bodily injury finding and one year for the use of a deadly and dangerous
weapon. The sentence were consecutive.
Dorsey appeals from the judgment, contending that the trial court erred when it
excluded expert testimony that would have explained why he stayed in a dysfunctional
relationship with Gina; lightened the prosecution’s burden by modifying the CALCRIM
instructions regarding adequate provocation; gave incomplete instructions on the lesser
included offenses; and improperly admitted rebuttal evidence regarding statements made
by Gina. In addition, Dorsey claims he received ineffective assistance of counsel. Last,
he urges us to reverse due to cumulative error.
We affirm.
1
All further statutory references are to the Penal Code unless otherwise indicated.
2
FACTS
The Prosecution’s Case-in-chief
Background
Gina and Grace were sisters. Gina was 45 years old when she was killed on
August 3, 2011, and Grace was a few years younger. Around August 2011, Gina was
4 feet, 10 inches tall and weighed about 90 pounds, while Grace was 5 feet, 1 inch tall
and weighed about 100 pounds. Dorsey, in contrast, was over six feet tall and weighed
between 200 and 230 pounds.
Since 1982, Gina and Grace lived together off and on in a home in San Gabriel
owned by their parents.
During her adult life, Gina suffered from bipolar disorder. At times her disorder
would manifest in uncontrollable screaming, throwing things, and physically attacking
people. She was married several times, and her disorder led to the breakup of her first
marriage.
Starting in 2004 or 2005, Dorsey worked with Grace at E! Entertainment. They
were good friends. Gina got a job there in 2006. In 2010, Dorsey began dating Gina, and
Grace told him about Gina’s disorder. At that time, he was living in an apartment in
Palms. Eventually, Gina moved into Dorsey’s apartment. But then, after Gina was laid
off from E! Entertainment in February 2011, they moved into the San Gabriel home with
Grace so, per Gina, that they could save money to buy a house together. According to
Grace, Dorsey and Gina fought verbally “quite a bit.”
Dorsey and Gina married in March 2011. A few months later, in June 2011,
Gina’s father asked them to move out of the San Gabriel home. They did. He rented an
apartment on Bagley near Culver City.
On July 30, 2011, Gina moved back to the San Gabriel home, saying she had an
argument with Dorsey because he would not acknowledge her on Facebook. Grace and
Gina went to dinner, and Gina said she was sad that her relationship with Dorsey did not
work. She said he had a “dark side.” Later that night, Grace drove Gina to Dorsey’s
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apartment because she was going to move and wanted to help him clean. The next day,
Gina returned to San Gabriel and seemed normal.
The Crimes
On Tuesday, August 2, 2011, Gina asked Grace to go to Dorsey’s Bagley
apartment to pick up a check for her. Grace texted Dorsey to inform him that she was
going to his apartment. He replied back, “Come over.”
At about 11:00 p.m., Grace arrived at the Bagley apartment, but Dorsey was not
home. Via a text from Gina, Grace learned that Dorsey was at the San Gabriel home.
She drove back to San Gabriel and got home about midnight. Inside, she heard Dorsey
and Gina talking in her upstairs bedroom. She repeatedly pleaded with him to leave.
There were two bottles of wine in the kitchen sink, an empty wine bottle in the
refrigerator, and beer cans in the garbage can in the kitchen.2
Because she was angry that Dorsey was not at the Bagley apartment, Grace called
for Gina to come downstairs. After 20 minutes, Gina came downstairs and said, “We’ll
just talk later.” Grace went to her downstairs bedroom. Later, she came out of her
bedroom to talk to Gina as she cooked. Dorsey walked halfway down the stairs, saw
Grace, and walked back up. Grace returned to her bedroom, put in earplugs and went to
sleep.
About 5:00 a.m., Grace heard Gina screaming and ran upstairs to Gina’s bedroom.
She was sitting on the foot of the bed, crying, and there was blood on her face.
Dorsey was standing in between the bed and bathroom door. Grace asked, “What
the fuck is going on?” In response, Dorsey lunged at Grace, grabbed her by the neck and
punched her in the face and on the head multiple times. He said, “Do you want to see
crazy? I’m crazy.” Gina screamed, “Not my sister. Not my sister.”
Dorsey dragged Grace to the bed and hit her face and head again. He took a wine
glass off the end table, and broke the glass against the headboard so only the stem and
bottom part of the glass were intact. Holding her down, he brought the glass down
2
At trial, Grace identified a photograph of an empty wine bottle in the garbage can
in Gina’s bathroom.
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toward her eye. She grabbed the glass, and it cut her hand. They struggled over the
broken glass, and he pushed it against her neck. She managed to get the glass away from
him. Right after that, Dorsey took the lamp off the end table and smashed the lamp on
Grace’s forehead.
He dragged Grace to the ground and slammed the back of her head against the
nightstand multiple times. All the while, Gina was screaming, crying, and hitting Dorsey.
He turned his attention to Gina, who was on the bed, and choked her with both hands.
Grace hit Dorsey in the stomach with one or more pieces of glass. For a while, he
continued to strangle Gina on the bed, but then he got on top of Grace and choked her on
the floor. She said, “Jesus save us.” She kicked, turned and twisted until she got away
and was able to scoot out of the room in a sitting position. By that time, Dorsey was at
the top of the stairs trying to keep Gina from leaving.
Dorsey kicked Grace in the back, and she scooted down the stairs. She ran out of
the family home and went to a neighbor’s house where she called 911. In the call, which
was played for the jury, Grace said, “My sister’s husband has gone crazy! He tried to kill
me with a broken glass and I think he’s killing my sister. . . .” According to Grace, she
left the front door to her house open so the police could enter. She said Dorsey stabbed
her in the hand, hit her face, strangled her, and slammed her head against a table. In
addition, she said she might have a broken thumb, and she was bleeding. When asked if
Dorsey was on drugs, Grace said, “I don’t know, he's probably on alcohol.” The 911
operated asked if Grace thought Dorsey was drunk, and said, “I think so; no one can act
like that if they aren’t drunk.”
Sheriff’s deputies responded to the scene. They saw Dorsey standing in the
driveway, covered in blood. He appeared to have some sort of chest injury. One of the
deputies asked if Dorsey was injured. Dorsey said, “I did it, man. I stabbed her.” Asked
again whether he was injured, Dorsey said he had stabbed himself. Another sheriff’s
deputy went inside the house and found Gina unclothed and face down on the living
room floor. Blood was everywhere. Emergency medical technicians rolled Gina over
and tried to resuscitate her. She was nonresponsive.
5
Grace’s Injuries
During Dorsey’s attack, Grace suffered an injury to her scalp, abrasions to her
neck area, scratches to her left collar bone, an abrasion to her upper back, bruising to the
bicep area on her right arm, a scratch to her bicep area, a bruise to the tricep area of her
left arm, cuts to her right hand (to the inside of her middle finger; to the webbing between
her index finger and thumb), and an injury to the palm of her hand. She also suffered a
torn tendon in her thumb, which required surgical repair, and lacerations to her forehead,
which required stitches.
The Crime Scene Investigation
Just before 8:00 a.m. on August 3, 2011, Los Angeles County Sheriff’s Detective
Philip Guzman and another detective responded to the crime scene. In his 30-year career,
the crime scene was the bloodiest Detective Guzman had ever investigated.
The master bedroom was disheveled. Detective Guzman saw blood, overturned
furniture, two broken lamps, two broken wine bottles, a broken wine glass, disturbed
bedding, clothes on the floor, and broken glass everywhere, including in the bed. There
was a broken wine glass against the wall, and it had what looked like long strands of
human hair on it.
Gina was found on the floor of the combination family/dining room, which was
separated from the kitchen by a counter. There was a bloodstained knife by her right
arm, and another knife against a wall. Her face was bloody, and it bore facial injuries
that were consistent with having been in a fight. She had been stabbed 13 times, with
three or four stab wounds to her upper back or base of her neck, two stab wounds to the
upper portion of her right chest or shoulder, and stab wounds to the left side of her chest
and neck. On her right forearm/wrist, she had an injury.
Detective Guzman collected the four bloodstained knives in the kitchen area.
Subsequently, he was informed that someone found a clean knife in the master bedroom
under the bed or mattress.
6
The Autopsy
Dr. Yulai Wang, a medical examiner for the Los Angeles County Coroner's
Department, conducted an autopsy on Gina.
Gina suffered a total of 13 stab wounds, five to her chest. Two stab wounds to her
right upper chest area were fatal because they went between her ribs and pierced internal
organs. Stab wounds to the back of her head and neck area caused significant bleeding.
She had a stab wound to the left arm above the bicep, which could have been a defensive
wound, and there were cuts on her left middle finger. There was an injury to her left
index finger that could have been caused by broken glass. Stab wounds on her right palm
between the fourth and fifth fingers were consistent with defensive wounds. She had a
laceration on her wrist.
Beyond the stab wounds, Gina suffered blunt force trauma, including to her head
and face. She had a combination contusion/laceration to her forehead area. In addition,
she suffered a contusion to the front part of her brain. She also had abrasions on her
upper left arm, which were consistent with scratches, and bruises on the back of her left
hand, which were consistent with offensive wounds. Further, she had multiple
contusions to the right upper arm, and there was bruising to the inner right arm consistent
with being held by that arm. She had a bruise to the right buttock. Gina had abrasions on
her neck that were consistent with manual strangulation.
A toxicology report established that Gina had alcohol and methamphetamine in
her blood.
Defense Evidence
Dorsey’s Testimony
Dorsey had bipolar family members, including his younger sister, his older sister,
his grandmother, and his aunt. When he was growing up, he tried to take care of
everybody. As a result, he had experience with people with mental illnesses, including
bipolar disorder. Dorsey knew that if Gina took her medicine, “it could . . . sustain her.”
On May 29, 2011, Gina and Dorsey attended a concert. As they were trying to
exit after the concert, Gina began screaming, asking why he touched the buttocks of the
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woman in front of them. When they got to Gina’s car, she hit Dorsey, and he asked her
to get in the car. Once in the car, she hit Dorsey and spit on him. As she drove, she
continued to hit him.
At one point in June 2011, Gina stayed in bed for three days straight. Following
that extended stay in bed, she became volatile. Sometimes, when Dorsey was asleep,
Gina would kick him in the back, and Dorsey would get up and sleep in the living room
or other bedroom. If Gina followed him to another room or threw things, Dorsey would
sleep in his Ford Explorer. On multiple occasions, Gina scratched Dorsey’s face.
Notwithstanding Gina’s violence and various outbursts, Dorsey chose to stay in
the relationship because he wanted to help her.
On Wednesday, July 27, 2011, Gina screamed at Dorsey when he got home from
work, and threw things at him, including a vase. He left and stayed the night in his truck.
He did not get any sleep.
The next day, they exchanged a series of text messages. She would not let him
into the apartment. To get back into his apartment, he went through a window. She
threatened to call the police and say he hit her. Dorsey dressed for work, and Gina said
she would see him there and get him fired.
Dorsey went to work and alerted his boss, Kenneth Falcon (Falcon), that Gina
might cause a problem. She parked outside the E! Entertainment offices in her car and
honked, but she did not get out. Then, at 4:00 p.m., she texted Dorsey and said, “I’m in
the building. Try stopping me from going to [Falcon’s] office.” Eventually, Gina drove
away. At some point, Dorsey sent Gina an e-mail saying their relationship was over.
The following day, at about 7:00 p.m., Dorsey went to the apartment, Gina
accused him of spending the night at a woman’s house and started cutting up the sofas.
Dorsey left about 15 minutes later.
On Saturday, July 30, 2011, at 1:00 a.m., Dorsey went back to the apartment,
believing Gina would be gone. She was still there. She had written “cheater, cheater,
cheater” on the walls. They spent the whole night talking. The next day, he helped her
move back into the San Gabriel house. In the evening, they returned to the apartment to
8
clean and stayed until Sunday morning. Dorsey had not slept more than an hour or two in
three days.
Dorsey drove Gina from Los Angeles to San Gabriel in his car and arrived around
9:00 a.m. They unpacked Gina’s things, and Dorsey drove back to Los Angeles. That
night, Gina called and said she was expecting an unemployment check in the mail.
Dorsey said he would send it to her. But when he could not find the mailbox key, he was
unable to look in the mailbox. Nonetheless, he said that he would “get her check [to]
her[.]”
On the morning of Tuesday, August 2, 2011, Gina arranged with Dorsey for Grace
to pick up the check at the Bagley apartment after work, maybe after 8:30 to 9:00 p.m.
He told Gina he did not have the key. She felt he was trying to keep her check, and
threatened to get him in trouble.
At 3:32 p.m., he texted Grace and asked what time she was coming for the check.
She asked if 9:00 p.m. was okay. He texted back, “Cool.” At that time, he had been
drinking. He left work at 5:00 p.m. and went to the Bagley apartment. A locksmith
opened the mailbox, and Dorsey retrieved the check. He started drinking vodka.
He wanted to take the check to Gina and show her the locksmith receipt, so he
drove to San Gabriel, arriving a little after 9:00 p.m. He was a “little edgy” because of
the “whole implication that [he] was trying to withhold her mail.” It was unnerving to
him that Gina said she was going to report him to the police for beating her. He gave
Gina the check and showed her the locksmith receipt. Gina was happy to get her check
and seemed fine. They both went upstairs and talked.
Gina told Dorsey to leave. He stayed because he wanted to end things civilly.
Eventually, she offered him something to eat. Also, she offered him a beer, which he
drank. They both drank wine. Sometime later that evening, Grace arrived at the house.
Gina went downstairs to cook hamburgers. When she came upstairs after cooking, she
used a knife to cut her hamburger.
After 1:00 a.m., they got into an argument about Dorsey’s Facebook account. He
went into another bedroom and deactivated the account. Gina “started getting very, like,
9
aggressive.” She pointed at him and “hit [him] a few times.” He walked to the master
bedroom. Gina threw something at him, possibly a glass, and approached him. Once the
situation escalated, he “got mad.” He punched her in the head. Then he pushed her
down, and they got into an altercation.
Grace came upstairs. She said, “What the fuck is going on?” Then she
approached Dorsey, which startled him. He reacted by grabbing her. He “may have”
grabbed Grace by the throat. When Grace and Dorsey were struggling and he was
holding on her down on the bed, Gina was hitting him. Grace had “one of [his] testicles
with the glass and was trying to cut [him].” At some point—he was not sure when—he
hit Grace in the head with a lamp to get her off of him. To get Gina off of him, he may
have used a wine glass. He did not “know what was going on in [his] head.” He was
“feeling weird,” his “mind started getting cloudy,” and his “mind was just racing.”
Dorsey testified that he could have kicked Grace down the stairs, but did not
remember if he did because his mind was “cluttered.” He further did not remember how
he and Gina ended up downstairs. He remembered “bits and pieces of being on the first
floor.”
He heard Gina “fumbling for something.” It was dark. She grabbed some knives,
and they scattered. Gina approached him with a knife, and he took it away. Then he
stabbed her because “she was about to get a knife” and they “got into a tussle.” He did
not remember how many times he stabbed her. All he remembered was that he stabbed
her at least once, “maybe in her arm or something.” They were battling. His “mind was
racing,” and he did not feel like himself. He testified, “[M]y mind was just . . . going
crazy.” When he stabbed her, he was trying to defend himself.
Dorsey denied that he had been physically abusive with Gina on any previous
occasion. In the past, when he hit Gina once or twice, he was just trying to push her off
of him.
Dr. Hy Malinek’s Testimony
Dr. Hy Malinek, a clinical and forensic psychologist, opined that at the time of the
crime, Dorsey was intoxicated and depressed. A toxicology report he reviewed indicated
10
that Dorsey was on an antianxiety medication called benzodiazepine. Dr. Malinek
doubted that an intoxicated person under the influence of benzodiazepine would be able
to adequately process a violent situation. Further, in Dr. Malinek’s opinion, Dorsey did
not fit the criteria for antisocial personality or psychopathy because he did not have any
history of psychopathic behaviors.
Rebuttal
Jerry Ho
In 1999, Jerry Ho (Ho) married Gina. After they separated in 2004, they lost
contact. Then, in 2011, they reconnected and decided to pursue a divorce.
At some point, Gina told Ho she was afraid of Dorsey.
During the last weekend in July 2011, Gina asked Ho to help her move from the
Bagley apartment to San Gabriel. Ho was unavailable. On Saturday, July 30, 2011, at
4:23 a.m., Gina texted Ho and said, “Should anything happen to me, I'm at [] Bagley
Avenue, apartment 1, Los Angeles, 90034.” Ho spoke to Gina by telephone and asked if
he should call the police. She said that Dorsey took her car and purse, and beat her up.
Also, she told Ho not to call the police or Dorsey would kill her. Nonetheless, she said
everything was okay because she had her purse and wallet.
On Monday, August 1, 2011, Ho met Gina at a restaurant to sign the final divorce
documents. He noticed that she had bruises on her wrist, arms and right hamstring. Also,
she had a bruise on her face. Because she was wearing thick makeup, he could not
discern whether she had a black eyes. She said the injuries had been caused by Dorsey.
He told her to call the local sheriff, and the Los Angeles Battered Women’s Organization.
Ralph De La Torre
On Tuesday, August 2, 2011, Gina telephoned her friend, Ralph De La Torre. She
said that she had not been to work for two or three days because her husband had beaten
her and given her a black eye.
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DISCUSSION
I. Exclusion of Expert Testimony.
Dorsey argues that he was denied his constitutional right to present a defense
because the trial court excluded Dr. Malinek’s hypothesis as to why Dorsey stayed in a
dysfunctional relationship with Gina.
We disagree.
A. Relevant Proceedings.
The defense proposed to call Dr. Malinek to testify that Dorsey stayed in a
relationship with Gina because she was mentally ill and he wanted to help her as he had
helped mentally ill family members. According to defense counsel, this evidence would
combat any suggestion by the prosecutor that Dorsey went to Gina’s house on the day of
the murder with the intent to kill her.
Prior to trial, the trial court excluded this expert testimony without prejudice to it
being offered if the People’s evidence suggested that Dorsey intended to kill Gina when
he went to her house.
When Dorsey took the stand in his own defense, he was asked: “Why is it that,
notwithstanding all the craziness, notwithstanding all the outbursts and violence that Gina
directed towards you, why did you choose to stay with her?” Dorsey testified, “I just
wanted to help her.” As a follow up, defense counsel asked if Dorsey had helped
somebody else in the past, and Dorsey answered, “I had family members.”
The trial court later held an Evidence Code section 402 hearing. Asked by the trial
court to state his hypothesis regarding why Dorsey chose to stay with Gina, Dr. Malinek
stated: “I think he felt that he has a need to heal her . . . because he himself grew up
around mentally ill and schizophrenic women. This was an opportunity to work through
some of his own earlier problems in his childhood and allow him to have a sense of
control or to try to have a sense of control where he did not have any of this earlier on.”
This hypothesis was based on his “knowledge of the dynamics of dysfunctional
relationships and about frequent patterns that we see in intrafamilial violence, and about
complimentary needs in dysfunctional relationships, why people who are not good for
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each other stay together. [¶] There is a body of knowledge that you could find in
developmental psychology or in relationship textbooks about dysfunctional relationships
that illuminate this. [¶] Just like we know that many people who have been victims of
sexual molestation themselves become molesters trying to work out a piece of that later
on in their lives. The same kind of thing happens in . . . this kind of situation where
someone who has been a victim or abused or neglected tries to be a healer later on in their
relationships, even if it doesn’t work out.” He further explained that his hypothesis was
based on his “knowledge and study of human behavior and dysfunctional relationship and
intrafamilial violence.”
On cross-examination, Dr. Malinek testified that in the past his practice involved
psychotherapy and couples therapy. He slowly moved into forensic work. At the time he
was testifying, he was no longer working with couples. He had worked as an expert for
the district attorney’s office in cases involving intrafamilial violence. In connection with
that work, he had opined that when a domestic violence victim does not leave the abuser,
it is because of their past, such as being a child who was exposed to domestic violence in
his or her family.
According to Dr. Malinek, Dorsey and Gina were “inescapably trapped in a cycle
of violence[.]” Dr. Malinek formed this opinion based on the frequent arguments
between Dorsey and Gina, their separation, Dorsey’s complaints to coworkers about
Gina’s jealousy, Gina calling Dorsey’s office, Gina accusing him of being unfaithful
without any basis, Gina’s history of mental illness and bipolarity that led to a hospital
stay, and Dorsey’s statements indicating that Gina and he were two people who could not
live either together or apart.
The trial court asked Dr. Malinek if he had worked on cases involving “similar
circumstances where people have had disorders of a similar nature that led to a similar
outcome that is causing you to create this hypothesis?” He replied: “It is a hypothesis,
your honor. It’s not a—well, there is no specific publication or research about it. It is a
hypothesis that I am developing from my clinical experience, from cases that I have seen,
you know, actually with my work for the court, from literature on the dynamics of
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dysfunctional relationships. [¶] Is there a specific article that supports it? Probably not.”
When Dr. Malinek used the word “hypothesis,” he was using it to mean “theory.”
Following up, the trial court asked if Dr. Malinek was aware of any case studies
that have made the correlation that he was seeking to make in support of his hypothesis.
Dr. Malinek stated: “Well, the literature . . . on battered person’s syndrome[—which]
looks at people who are abused in a relationship, emotionally or physically[—]does lend
quite a bit of support to the direction I am taking in trying to assess why people, men or
women, stay in relationships that are not good for them.” His hypothesis was based on
his experience as an expert.
The trial court ruled: “I am finding that the doctor may not testify with respect to
his hypothesis or theory. The court’s reasoning is as follows: first of all, it appears to me
that the only relevant issue is what was happening on August 2nd and August 3. Because
the relationship, in fact, had terminated. And, in fact, [Dorsey] had indicated that he was
walking away from the relationship.
“The question as to why he may have stayed in the relationship between the
months of February and the end of July are either irrelevant or only very tangentially
relevant here.
“It does appear to me that Dr. Malinek is not qualified to testify about the specific
hypothesis that he intends to present to the jury. And I will note that by presenting it as a
hypothesis, he adopted my characterization as this being a theory as opposed to an
opinion that is based upon any scientific analysis or basis in science or even case studies
and the like.
“I am also making a factual credibility determination that while I tried to ask
Dr. Malinek about his specific background and experience that would qualify him to give
this type of specific opinion, his response was general and in my view evasive, not
because he was necessarily attempting to deceive the court, but because it became very
clear to me that his opinion is drawing upon very general information about human
behavior. And in doing so, it appears to me that to permit that type of testimony also runs
the risk of interfering with the jury’s function of making its own determination from the
14
facts as opposed to having those facts be dressed up in an expert opinion that would then
supersede potentially the jurors’ own independent evaluation.
“Having said that, I am going to allow [Dorsey] himself, if he would like on
redirect, as we discussed, to explain anything that he would like concerning his mental
state, including his mental state regarding why he stayed in the relationship for five
months.” The trial court also stated that defense counsel could elicit from Dorsey
testimony regarding “whatever his mental state was on August 2nd and August 3.”
When the trial continued, Dorsey testified that his grandmother, aunt and two
sisters had mental illness, and he was one of the family members who helped take care of
everyone.
In closing argument, the prosecutor posited that when Dorsey came down the
stairs in the San Gabriel house, he had a choice of walking out to his car or finishing off
the woman “that I have been attacking, the woman who is trying to destroy me, the
woman that I don’t like, the woman who left me.” The prosecutor then stated: “And
she’s murdered not because she’s bipolar. She’s not murdered because she had
methamphetamine in her system. She’s murdered because he’s angry. He’s pissed off,
and that’s a motive.”
B. The Trial Court Did Not Commit State Law Error.
1. The Hypothesis was Irrelevant.
Evidence is relevant if it logically, naturally, and reasonably tends to prove or
disprove a material issue in dispute. (People v. Harris (2005) 37 Cal. 4th 310, 337.)
When a trial court excludes evidence as irrelevant, that ruling “will not be disturbed
except on a showing the trial court exercised its discretion in an arbitrary, capricious, or
patently absurd manner that resulted in a manifest miscarriage of justice [citation].”
(People v. Rodriguez (1999) 20 Cal. 4th 1, 9–10.)
Here, we find no abuse of discretion. The hypothesis had no tendency in reason to
disprove the prosecution’s theory of motive, which was that Dorsey killed Gina because
he was angry.
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In arguing that Dr. Malinek’s hypothesis was relevant to the issues presented at
trial, Dorsey states: “Immediately prior to the offenses, Gina and [he] were drinking
wine, conversing, laughing and sharing hamburgers. [Citation.] This is the very
phenomenon the expert was being called upon to explain. It was this behavior that the
prosecution contended demonstrated a motive to kill the victim, and to which the defense
sought to attach an alternative and more credible explanation. [Dorsey’s] stated
termination of the relationship between himself and [Gina] did not render the proposed
testimony irrelevant, as the [trial court] asserted, but in fact was the very behavior that
made such proposed testimony relevant.”
The problem is that Dorsey has not cited to any portion of the record suggesting
that the prosecution argued that drinking wine, conversing with Gina, laughing and
sharing hamburgers gave him a motive to kill. The point is waived. (Guthrey v. State of
California (1998) 63 Cal. App. 4th 1108, 1115 [“As a general rule, ‘The reviewing court is
not required to make an independent, unassisted study of the record in search of error or
grounds to support the judgment’”].)
Next, Dorsey states: “Absent the proposed expert testimony, the jury, unfairly,
was left with the prosecution’s explanation: [Dorsey] engaged in the odd behavior of
remaining or perpetuating a self-destructive relationship so he could kill the victim,
[Gina], and be free of her threats; that is, her threats to tell law enforcement authorities
that [Dorsey] had abused her.”
To support his characterization of the prosecution theory, Dorsey refers us to a few
paragraphs in the prosecutor’s closing argument. The prosecutor stated: “Look, I’m not
saying [Dorsey] went over there to kill her. But he knew that [she] was trying to destroy
. . . him. That’s what was going on in his mind. This woman is not returning my calls.
She just said that she’s going to report me and she’s trying to destroy me. He knew
Grace would be all the way in West [Los Angeles] [when] he [went] to Gina’s house in
San Gabriel[,] and she would be alone and maybe that would be his in. [¶] So when he
was told multiple times to leave, please leave, after he had come and dropped off the
check, which is his whole reason for going there obviously, does he leave? No. He
16
makes a choice to stay. He makes a choice to stay in that home of his estranged wife, and
chooses to continue drinking. No one forced him to do this. . . . [¶] It is a man making
a series of choices, going to confront and be with the person that has just left him, a
person that he’s been physically abusive towards. And the evidence is clear that he was
physically abusive towards her in the past. A woman that he knows is afraid of [him],
and is reporting him—and may be reporting him to the police, and is telling other people
that he’s been abusive towards her.”
At no point in the text cited above did the prosecutor argue that Dorsey
perpetuated a self-destructive relationship so he could kill Gina and be free of her threats.
2. Dr. Malinek’s Qualification to Render the Hypothesis.
The trial court ruled that Dr. Malinek was not qualified to render the hypothesis.
Dorsey does not clearly contend that this was error. Nonetheless, we have examined the
issue. “‘A person is qualified to testify as an expert if he has special knowledge, skill,
experience, training, or education sufficient to qualify him as an expert on the subject to
which his testimony relates.’ [Citation.] ‘“The trial court is given considerable latitude
in determining the qualifications of an expert and its ruling will not be disturbed on
appeal unless a manifest abuse of discretion is shown.”’ [Citation.]” (People v.
Davenport (1995) 11 Cal. 4th 1171, 1207.)
We conclude that the trial court did not abuse its discretion when determining that
Dr. Malinek was not qualified. As noted by the trial court, Dr. Malinek’s testimony was
vague regarding his experience, and it appeared his hypothesis was based on general
information about human behavior.
C. The Trial Court Did Not Violate Dorsey’s Constitutional Rights.
A defendant in a criminal trial is entitled to due process and a fair trial, which
includes an opportunity to present a complete defense. (Crane v. Kentucky (1986) 476
U.S. 683, 690.) A defendant is denied the right to present a defense if the trial court
excludes evidence that is vital to that defense. (People v. Babbitt (1988) 45 Cal. 3d 660,
684.) “The principle applies, however, only to ‘relevant and material’ evidence.
[Citations.]” (Ibid.)
17
Because we have determined that Dr. Malinek’s hypothesis was not relevant, the
exclusion of Dr. Malinek’s testimony regarding his hypothesis did not implicate any
constitutional concerns.
II. The Provocation Instruction.
Dorsey contends the trial court’s instructions on adequate provocation necessary
for a finding of voluntary manslaughter of Gina and attempted voluntary manslaughter of
Grace impermissibly lightened the prosecution’s burden of proof and therefore violated
his right to a jury trial.
This contention lacks merit.
A. Relevant Proceedings.
In a colloquy regarding jury instructions, the prosecutor requested that the trial
court modify CALCRIM Nos. 570 and 603 by adding the word “sober” to the definition
of sufficient provocation so that the definition given to the jury would be this: The
provocation would have caused a sober person of average disposition to act rashly and
without due deliberation, that is, from passion rather than from judgment. (CALCRIM
Nos. 570 & 603.)
Defense counsel objected, stating, “I believe that the CALCRIM instructions are
very comprehensive, and I’m not—it says an ordinary person, your Honor. And I think
by its very meaning it means a person that is sober.” When asked, defense counsel
clarified that he did not have a substantive objection. Rather, he simply believed the
modification was unnecessary.
The trial court asked if defense counsel planned to argue that Dorsey’s
intoxication should be considered with respect to the objective component of
provocation. Defense counsel replied, “Well, in my argument I will incorporate all the
factual evidence, the emotional environment, the continuing stressors between [Gina] and
[Dorsey], the lack of sleep, the fact that they had been drinking. But that is just as a
totality, in other words, as a background to it. And I think that that’s all the evidence. [¶]
But . . . the jury is going to have to interpret that as to how to apply it to this particular
case as far as manslaughter is concerned.”
18
Because of what defense counsel intended to argue, the trial court indicated that it
perceived a danger that the jury might get “a little bit lost in what they can consider
voluntary intoxication for and what they cannot consider it for.” The trial court went on
to state: “I don’t see that there is any prejudice if there is no substantive disagreement.
So I will give the adjective, but I will do no more than that.” When defense counsel
objected again, the trial court stated that “it is a matter of clarification, nothing more.”
Further, the trial court stated the adjective would be included “so that there is no
confusion on the part of the jury as to the limitation as to the use they can make of
voluntary intoxication,” but that it would not give a stand-alone pinpoint instruction.
The jury was instructed about voluntary manslaughter and attempted voluntary
manslaughter based on sudden quarrel or heat of passion. As to provocation, the trial
court instructed as the prosecution requested.
B. The Instructions Did Not Violate Dorsey’s Right to a Jury Trial.
If a trial court instructs a jury in a manner that lightens the prosecution’s burden to
prove every element of a crime beyond a reasonable doubt, the defendant is denied his
right to a jury trial. (People v. Hunter (2011) 202 Cal. App. 4th 261, 276 (Hunter).) We
review constitutional issues de novo. (Vargas v. City of Salinas (2011) 200 Cal. App. 4th
1331, 1341–1342.)
In our view, the trial court correctly instructed on the law.
A defendant who acts in a sudden quarrel or heat of passion because of sufficient
provocation is presumed to act without the malice necessary for murder and is therefore
guilty of only voluntary manslaughter. (People v. Sedeno (1974) 10 Cal. 3d 703, 719,
abrogated on other grounds by People v. Breverman (1998) 19 Cal. 4th 142, 149
(Breverman); §§ 187, subd. (a), 192, subd. (a).)
“A heat of passion theory of manslaughter has both an objective and a subjective
component. [Citations.]” (People v. Moye (2009) 47 Cal. 4th 537, 549 (Moye); People v.
Steele (2002) 27 Cal. 4th 1230, 1252.) The objective component is satisfied when the
heat of passion is due to provocation that would “‘render an ordinary person of average
disposition “liable to act rashly or without due deliberation and reflection, and from this
19
passion rather than from judgment”’ [citation][.]’” (People v. Trinh (2014) 59 Cal. 4th
216, 232–233.) The subjective component is satisfied when it is shown that the
defendant “killed while under ‘the actual influence of a strong passion’ induced by such
provocation.” (Moye, supra, 47 Cal.4th at p. 550.)
Regarding the objective component, our Supreme Court has explained that the
provocation “‘must be such that an average, sober person would be so inflamed that he or
she would lose reason and judgment.’ [Citation.]” (People v. Manriquez (2005) 37
Cal. 4th 547, 585–586; People v. Lee (1999) 20 Cal. 4th 47, 59–60 [“The provocation must
be such that an average, sober person would be so inflamed that he or she would lose
reason and judgment”].)
Despite the foregoing authorities, Dorsey argues that the modification of the
instructions “materially altered their meaning, to [his] substantial detriment.” But the
objective standard presumes a sober person of average disposition, so it cannot be said
that the meaning was altered.
Drawing upon Hunter, Dorsey argues the following. The modification drew
attention to the fact that he had been drinking and might not have been sober at the time
of the offenses. “Accordingly, the instruction served notice to the jury that [Dorsey], not
being a ‘sober’ person, was not being ‘objectively reasonable’ in being provoked and
therefore was not entitled to the operation and benefit of the voluntary manslaughter
instructions.” As a result, “the jurors were permitted to interpret the offending instruction
as a caution against finding a reasonable doubt on the basis of a finding of adequate
provocation[.]”
In Hunter, a jury convicted the defendant of multiple robberies and found that
during some of the robberies he had used a firearm. (Hunter, supra, 202 Cal.App.4th at
p. 264.) The defendant assigned error to an instruction stating that “‘[w]hen a defendant
commits a robbery by displaying an object that looks like a gun, the object’s appearance
and the defendant’s conduct and words in using it may constitute sufficient circumstantial
evidence to support a finding that it was a firearm.” (Id. at pp. 275–276.) The Hunter
court found that this instruction essentially pinpointed “a legal theory that favored the
20
prosecution by restricting the use of circumstantial evidence to raise a reasonable doubt.”
(Id. at p. 275.) There were two specific problems. The instruction was argumentative
because the jury was told how circumstantial evidence could be used to find that the
object was a firearm but not, conversely, how it could be used to find that the object was
not a firearm. (Id. at p. 276.) This permitted the jurors to “interpret the instruction as a
caution against finding a reasonable doubt on the basis that the victims were unable “to
‘say conclusively that the gun was real and not a toy.’” (Ibid.) According to Hunter, this
“impermissibly alleviated the district attorney’s need to persuade the trier of fact that the
gun used in the robbery was a real one, the most important fact at issue in the case.”
(Ibid.)
The insertion of the word “sober” into the provocation instruction was not
argumentative because it did not suggest that sobriety was the test for whether a person
acted in a reasonable manner. Rather, it properly explained to the jury that intoxication
would not change what was reasonable for purposes of determining whether a person of
average disposition would have been provoked. Properly understood, the instruction
simply defined the objective standard in the provocation inquiry. Nor did the
modification caution against a finding of provocation based on Dorsey being intoxicated
because it did not suggest that an intoxicated person was incapable of acting in an
objectively reasonable manner.
III. Instructions on Lesser Included Offenses.
Dorsey contends that the trial court violated its sua sponte duty to instruct on three
particular lesser included offenses. With respect to murder and attempted murder counts,
Dorsey asserts that the trial court should have given instructions on simple assault and
assault by means of force likely to cause great bodily injury. With respect to the murder
count, Dorsey asserts that the trial court should have given instructions on involuntary
manslaughter based on a killing committed without malice in the course of a serious
felony not inherently dangerous.
As discussed below, Dorsey’s assertions fail.
21
A. The Applicable Law.
Whether the trial court erred in failing to instruct on a lesser included offense is
reviewed de novo. (People v. Waidla (2000) 22 Cal. 4th 690, 739.)
“To determine whether a lesser offense is necessarily included in the charged
offense, one of two tests (called the ‘elements’ test and the ‘accusatory pleading’ test)
must be met. The elements test is satisfied when ‘“all the legal ingredients of the corpus
delicti of the lesser offense [are] included in the elements of the greater offense.”
[Citation.]’ [Citations.] Stated differently, if a crime cannot be committed without also
necessarily committing a lesser offense, the latter is a lesser included offense within the
former. [Citations.]” (People v. Lopez (1998) 19 Cal. 4th 282, 288.) “Under the
accusatory pleading test, a lesser offense is included within the greater charged offense
‘“if the charging allegations of the accusatory pleading include language describing the
offense in such a way that if committed as specified the lesser offense is necessarily
committed.” [Citation.]’ [Citations.]” (Id. at pp. 288–289.)
B. Simple Assault and Assault With a Deadly Weapon Are Not Lesser Included
Offenses of Murder and Attempted Murder.
In urging error, Dorsey relies on the elements test. But under that test, neither
simple assault nor assault with a deadly weapon are a lesser included offenses of either
murder or attempted murder because murder or attempted murder can be committed
without an assault. (People v. Sanchez (2001) 24 Cal. 4th 983, 988 [since murder can be
committed without a deadly weapon, assault with a deadly weapon is not necessarily
included within murder]; People v. Richmond (1991) 2 Cal. App. 4th 610, 616 [“assault
with a deadly weapon is not a lesser included offense of attempted murder with the use of
a deadly weapon, because attempted murder can be committed without using a deadly
weapon”]; People v. Benjamin (1975) 52 Cal. App. 3d 63, 71 [“one could commit murder
by withholding food and drink from an invalid”].)
Dorsey argues that “while the act of ‘withholding food and drink . . . ’ is by itself a
nonviolent act, the foreseeable consequences of that act is necessarily the application of
force which unless interrupted by some circumstance not intended by the original design,
22
will result in death. For example, it has been noted that a person in the process of dying
from dehydration would suffer many symptoms that could be characterized as ‘force’ or
‘violence’ directly attributable to the withholding of fluids, including but not limited to
vomiting and dry heaves, convulsions, swelling of the tongue, plugging of the lungs with
secretions and the failure of major organs.”
We are not persuaded. In support of his argument, Dorsey relies on a partial
dissent in Brophy v. New England Sinai Hospital, Inc. (1986) 497 N.E.2d 626, a
Massachusetts case. In Brophy, a family was faced with a family member who was in a
vegetative state. They wanted to cut off nutrition and hydration, but the hospital and
attending physician opposed, so the matter ended up going to court for resolution. The
majority sided with the family, and the dissenting judges sided with the state. In a
footnote, one of the dissenting judges stated: “The judge found that death by dehydration
is extremely painful and uncomfortable for a human being. The judge could not rule out
the possibility that Paul Brophy could experience pain in such a scenario. Paul Brophy’s
attending physician described death by dehydration as cruel and violent.” (Id. at p. 341,
fn. 2, Lynch, J., dissenting in part.)
The footnote merely describes the effects of dehydration and starvation on the
human body. It does not analyze whether assault is a lesser included offense of murder,
and therefore offers us no guidance.
C. With Respect to the Murder Count, the Trial Court Was Not Required to
Instruct on Involuntary Manslaughter Based on a Killing Committed Without Malice in
the Course of a Noninherently Dangerous Felony.
“[A] killing without malice in the commission of a noninherently dangerous
felony [constitutes] involuntary manslaughter if ‘committed without due caution and
circumspection.’ [Citation.]” (People v. Bryant (2013) 56 Cal. 4th 959, 966.) According
to Dorsey, the jury should have been instructed on this principle of law. He argues that
“one or more of the jurors could reasonably have found the killing to have been done
without malice, so as to render the offense involuntary manslaughter[.]” This argument
is unavailing. The duty to instruct on a lesser included offense is not triggered unless
23
substantial evidence suggests that the defendant is guilty of only the lesser offense.
(Breverman, supra, 19 Cal.4th at p. 162.) Dorsey does not contend—nor could he—that
his act of stabbing Gina 13 times was a noninherently dangerous felony. As a result,
there is no need for further analysis.
IV. Rebuttal Evidence.
Dorsey contends that he was denied due process because the erroneous admission
of the testimony of Ho and De La Torre during rebuttal denied him a fundamentally fair
trial. He relies on due process, Evidence Code section 1101, subdivision (a) and
Evidence Code section 352 objections that are being raised for the first time on appeal.
This contention is forfeited, and it lacks merit.
A. Relevant Proceedings.
The prosecutor submitted a trial brief which indicated, inter alia, that when Dorsey
was interviewed, he painted Gina as the aggressor. Anticipating that Dorsey would offer
evidence of self-defense or imperfect self-defense, the prosecution stated that it would
seek to introduce the following evidence: De La Torre saw Gina the day before the
murder, and she had the remnants of a black eye. She said that her husband beat her over
the weekend. Ho, the husband Gina separated from in 2004, spoke to Gina on three
occasions during which she described various instances of domestic violence involving
Dorsey.
According to the prosecutor, the evidence was admissible to prove Gina’s state of
mind, i.e., that she was afraid of Dorsey. If she was afraid of him, the prosecutor
maintained that evidence of her state of mind would rebut any claim by Dorsey that he
acted in self-defense or imperfect self-defense.
In a pretrial hearing, the trial court deferred its ruling.
When the matter was argued next, the prosecutor stated that it was offering the
testimony of De La Torre and Ho to show Dorsey knew Gina was telling others he was
abusive, which gave him a motive to kill her. The prosecutor outlined the anticipated
testimony of each witness. Also, he noted that the trial court had indicated a concern that
Dorsey was not aware of Gina’s statements. The prosecutor stated, “I think through my
24
cross-examination I have established that [Dorsey] did, in fact, know that Gina was
telling people that he was abusive toward her. So he did have a subjective awareness that
she was at least projecting or telling people that he was an abusive husband.”
Defense counsel complained that the De La Torre’s testimony was hearsay,
particularly as to whether Gina had a black eye. The trial court stated, “What is your
response, though, to the [prosecutor] . . . relying upon Evidence Code section 1250 to
admit this as being relevant, in effect, as evidence of motive of your client[?] Your client
knew that [Gina] was telling people that, in fact, he had beaten her, and he therefore was
concerned about her spreading these, from his perspective, lies that perhaps caused him
in part to have motive to kill her. That’s what I understand to be the argument that is
being raised, and why it can be overcome by [a hearsay] exception[.]” To this, defense
counsel stated he had no objection to allowing De La Torre to testify that Gina said “she
was involved in domestic violence with [Dorsey] on a broad basis,” but he did object to
De La Torre testifying “as to specifics because that comes in for the truth of the matter.
And the truth of the matter is that he never actually saw that black eye. He is only relying
on her telling him this.”
In response, the trial court asked why it would not be sufficient to give a limiting
instruction that the “evidence is not to be taken for the truth of the matter but [may be
used] only to the extent that it is relevant as to whether [Dorsey] had a motive to kill[.]”
The defense submitted.
Subsequently, the trial court stated it had revised the limited purpose instruction,
and it would “instruct [the jury] not only at the close, but also contemporaneously with
the witnesses who will testify when they testify about [Gina’s] statements.”
In the rebuttal case, De La Torre testified that Gina telephoned him on August 2,
2011 and said she had not been to work for two or three days because her husband had
beaten her and given her a black eye. Ho testified that Gina told him that she was scared
of Dorsey and, on July 30, 2011, said Dorsey had beaten her. Ho testified that he saw
bruises on Gina’s wrist, arms, right hamstring, and facial area on August 1, 2011. Gina
told him she got the injuries from Dorsey.
25
Following the testimony of Ho and De La Torre, the trial court addressed the jury
and stated: “[Y]ou did hear from both Jerry Ho who just testified, and also
[De La Torre], and they explained to you conversations they had with [Gina] and that
[Gina] told both of them that [Dorsey] hit her or hurt her in some way. [¶] You may not
consider those statements for their truth, but rather you may consider them only to the
extent that you find them to be relevant to motive.”
Before the jury deliberated, the trial court instructed: “During the trial certain
evidence was admitted for a limited purpose, and the example that I gave you or will give
you is what happened this morning. [¶] You heard evidence that [Gina] told
[De La Torre] and [Ho] that the [Dorsey] had hit or hurt her. You may not consider those
statements for the truth, rather, you may consider them only to the extent that you find
them relevant to motive.”
B. Forfeiture.
In general, a defendant cannot advance an appellate objection to evidence unless
he made that specific objection below. (People v. Cowan (2010) 50 Cal. 4th 401, 465;
People v. Price (1991) 1 Cal. 4th 324, 430.) While counsel for Dorsey objected to
De La Torre’s testimony based on hearsay, counsel did not lodge any other objections
regarding the testimony of the rebuttal witnesses. Thus, Dorsey has waived the due
process, Evidence Code section 1101, subdivision (a), and Evidence Code section 352
objections he now raises on appeal.
C. No Denial of Due Process.
To be complete, we have analyzed Dorsey’s due process claim.
The erroneous admission of evidence results in a violation of a criminal
defendant’s right to due process if it makes a trial fundamentally unfair. (People v.
Partida (2005) 37 Cal. 4th 428, 439.) “To prove a deprivation of federal due process
rights, [a defendant] must satisfy a high constitutional standard to show that the erroneous
admission of evidence resulted in an unfair trial. ‘Only if there are no permissible
inferences the jury may draw from the evidence can its admission violate due process.
Even then, the evidence must “be of such quality as necessarily prevents a fair trial.”
26
[Citations.] Only under such circumstances can it be inferred that the jury must have
used the evidence for an improper purpose.’ [Citation.] ‘The dispositive issue is
. . . whether the trial court committed an error which rendered the trial “so ‘arbitrary and
fundamentally unfair’ that it violated federal due process.” [Citation.]’ [Citation.]”
(People v. Albarran (2007) 149 Cal. App. 4th 214, 229–230.)
Dorsey contends that the rebuttal evidence was inadmissible propensity evidence
that invited the jury to speculate that he had a disposition for violence and probably
committed the charged offenses. He posits that the introduction of this evidence
necessarily rendered the trial fundamentally unfair because inadmissible propensity
evidence is highly prejudicial. The undoing of this contention is that Ho’s and
De La Torre’s testimony was admitted as motive evidence under Evidence Code section
1101, subdivision (b), not as propensity evidence subject to exclusion under Evidence
Code section 1101, subdivision (a).
Next, Dorsey argues that the testimony should have been excluded as more
prejudicial than probative. (Evid. Code, § 352.) Even if that is true, the testimony was
not of such a quality that it denied Dorsey a fair trial. It was only offered as motive
evidence. Moreover, it pertained to conduct that was tame compared to Dorsey’s attacks
on Grace and Gina, so the testimony was not likely to be given undue weight by the jury,
particularly after the jury was instructed not to consider the testimony for the truth of the
matter asserted in Gina’s statements. Finally, we note that Grace testified that maybe
three times Gina said Dorsey had beaten her, and Gina had claimed Dorsey threw her
across a room one time. Consequently, the rebuttal evidence was not the only evidence
of past domestic violence.
At most, any error was state law error. Based on the brutal nature of Gina’s
murder by stabbing, there was overwhelming evidence of malice. We therefore conclude
that the error, if any, was harmless because it is not reasonably likely that the jury would
have returned a more favorable verdict without the evidence. (People v. Watson (1956)
46 Cal. 2d 818, 836.) In other words, is not probable the absence of the rebuttal evidence
27
would have resulted in the jury finding a lack of malice and convicting Dorsey of
manslaughter instead of murder.
V. No Ineffective Assistance of Counsel.
Dorsey contends he was denied effective assistance of counsel because (1) trial
counsel failed to present expert testimony regarding the fight or flight syndrome, and
(2) trial counsel failed to raise sufficient objections to the testimony of Ho and
De La Torre offered by the prosecution in rebuttal.
These contentions lack merit.
A. Applicable Law.
The Sixth Amendment establishes that a defendant in a criminal trial has a right to
counsel. (Strickland v. Washington (1984) 466 U.S. 668, 685.) The United States
Supreme Court has recognized that the right to counsel is the right to effective assistance
of counsel. (Ibid.) To establish the denial of effective assistance, a “‘defendant bears the
burden of showing, first, that counsel’s performance was deficient, falling below an
objective standard of reasonableness under prevailing professional norms. Second, a
defendant must establish that, absent counsel’s error, it is reasonably probable that the
verdict would have been more favorable to him.’ [Citation.]” (People v. Hernandez
(2004) 33 Cal. 4th 1040, 1052–1053.) Generally, “a claim of ineffective assistance of
counsel will not be reviewed on appeal absent a record from which it may be ascertained
that there is no reasonable tactical explanation for an attorney’s alleged failure to perform
in a manner to be expected of a reasonably competent attorney.” (People v. Milner
(1988) 45 Cal. 3d 227, 241.)
B. The Failure to Call an Expert Regarding the Fight or Flight Syndrome Was
Neither Ineffective Assistance Nor Prejudicial.
In Dorsey’s view, defense counsel should have presented expert testimony on fight
or flight syndrome, a phenomenon whereby a person under stress may act impulsively or
without conscious thought. This evidence, he argues, would have proved that he did not
harbor the malice necessary for murder.
28
We are told that fight or flight syndrome is a neurologic condition characterized
by autonomic responses whereby a subject reacts spontaneously when confronted with a
life-threatening situation or a situation evoking extreme rage, and that this may be
exacerbated by a person’s intoxication.
To establish the syndrome, Dorsey cites Hill v. Virga (N.D. Cal. 2013) 2013 U.S.
Dist. Lexis 11305, at pp. *13–15 (Hill) and Dumontier v. Schlumberger Tech. Corp. (9th
Cir. 2008) 543 F.3d 569, 570–571 (Dumontier).
The defendant in Hill was a gang member who shot at two police officers with an
assault rifle. He filed a petition for habeas corpus raising various constitutional issues
after being convicted of second degree murder with a peace officer special circumstance
and firearm enhancements; attempted first degree murder; assault on a peace officer with
personal use of an assault weapon; and possession of an assault weapon with a gang
allegation. (Hill, supra, 2013 U.S. Dist. Lexis 11305, at pp. *1–3, 19.)
At trial, the defendant in Hill argued that he was at a street corner to buy
marijuana and thought the two police officers were rival gang members who were going
to shoot him, which prompted him to act in self-defense. (Hill, supra, 2013 U.S. Dist.
Lexis 11305, at pp. *15–16.) The surviving police officer’s statements regarding whether
his police star was over or under his shirt—and therefore whether it was apparent he was
a police officer—were inconsistent. Right after the shooting, he said his police star was
under his shirt. Two years later, he said it was over his shirt. A neurophysiologist
testified on the effects of high stress on human functioning, particularly perception and
memory. He then opined “that a hypothetical police officer’s statement, taken 48 hours
after an extremely traumatic event, that his police star was underneath his shirt (or he
could not remember the star’s location) was more reliable than the same officer’s trial
testimony two-and-a-half years later that this star was outside his shirt. [The
neurophysiologist] also opined that waiting 48 hours to interview a police officer whose
partner died in a shooting results in the officer’s memory being less accurate than it
would have been had he been interviewed much closer to the time of the shooting.” (Hill,
supra, 2013 U.S. Dist. Lexis 11305, at pp. *13–14.)
29
Next, the neurophysiologist “testified that a person under the influence of
marijuana will have ‘less acuity in terms of processing information, . . . discerning
intentions, assessing consequences . . . .’ He said that under the influence of marijuana a
person tends to get distracted, has a short attention span, does not process information as
carefully, and takes longer to make decisions. He opined that hypothetically, when a
person is under the influence of marijuana and is in a high stress situation where they feel
their life is threatened, the person is more prone to ‘automatic fight or flight responses. If
[the person has] the resources to fight, the research indicates the person would probably
engage in counterattack. If [the person] would have the . . . capability for flight but not
the resources to attack, [the person will] try to run . . . try to escape.’ [The
neurophysiologist] said this would include police officers and gang members.” (Id. at
pp. 15-16.)
In Dumontier, the court interpreted the meaning of bodily injury in connection
with the Price-Peterson Act (42 U.S.C. § 2014), federal legislation that provides a remedy
for bodily injury arising out of or resulting from the radioactive, toxic, explosive, or other
hazardous properties of source, special nuclear, or byproduct material. (Dumontier,
supra, 543 F.3d at p. 569.) At issue was whether subcellular damage qualified as bodily
injury. (Id. at p. 570.) The court stated: “Plaintiffs argue that the slightest exposure to
radiation damages cells by denaturing proteins and modifying DNA. This, they argue,
qualifies as bodily injury under the Act. But not every alteration of the body is an injury.
Thinking causes synapses to fire and the brain to experience tiny electric shocks; fear
stimulates the production of chemicals associated with the fight-or-flight response. All
life is change, but all change is not injurious. Adopting plaintiffs’ interpretation of bodily
injury would render the term surplusage, as every exposure to radiation would perforce
cause injury. [Citation.]” (Ibid., fn. omitted.)
Finally, to establish the fight or flight syndrome as a viable defense, Dorsey cites
Deutscher v. Whitley (9th Cir. 1989) 884 F.2d 1152, 1161 (Deutscher). In that case, a
defendant filed a petition for writ of habeas corpus after being sentenced to death for
murder and robbery. The court found that counsel provided ineffective assistance at the
30
penalty phase of the trial by failing to investigate the defendant’s possible mental
impairment and present any evidence in mitigation. (Id. at p. 1159.) Per the court, it
might have made a difference if counsel had called a psychiatrist who had previously
examined the client. The psychiatrist would have testified that “premature children such
as [the defendant] can develop a mental disorder characterized by episodes of
uncontrollable violence that are often accompanied by a temporary loss of memory. He
would have testified that stress and alcohol can make such an outburst more likely and
that [the defendant’s] story that he had blacked out was consistent with the symptoms of
this disorder. Mental health records would have shown diagnoses of schizophrenia,
pathological intoxication, and organic brain damage; commitments to mental institutions;
and a history of good behavior in institutional settings. The records would have also
shown that [the defendant] had asked for but had not received treatment for episodes of
uncontrollable violence.” (Id. at pp. 1160–1161.)
We find no basis to conclude that case law dictated that Dorsey’s counsel should
have called an expert regarding fight or flight syndrome. Hill did not establish—nor did
it discuss—whether the fight or flight syndrome negates malice and reduces a homicide
from murder to manslaughter. Neither did Dumontier or Deutscher. Regardless, if fight
or flight syndrome were a viable defense to murder, the appellate record would be
insufficient to determine there was no reasonable tactical explanation for the decisions
made by Dorsey’s counsel. And if ineffective assistance of counsel had been established,
it would not be grounds for reversal. Grace’s testimony plus the evidence that Dorsey
stabbed Gina 13 times was overwhelming evidence of malice, and it is not reasonably
probable that Dorsey would have been acquitted if his counsel had presented the expert
testimony being urged on appeal.
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C. The Failure to Assert More Objections to the Rebuttal Evidence Was Not
Prejudicial.
Assuming without deciding that Dorsey’s counsel should have asserted due
process and Evidence Code section 352 objections to the testimony of Ho and
De La Torre, there was no prejudice. As discussed in connection with Dorsey’s assertion
of evidentiary error related to that testimony, it is not reasonably probable that its absence
would have resulted in Dorsey obtaining a better outcome, i.e., a conviction for
manslaughter instead of murder.
VI. Cumulative Error.
Dorsey contends that the multiple errors infected his trial and were cumulatively
prejudicial, even if no one error was prejudicial standing alone. We have explained why
there was either no error, or why any errors were harmless. Thus, we decline to find that
there were errors that are cumulatively prejudicial. If there were errors, they do not
“create[] a negative synergistic effect, rendering the degree of overall unfairness to
defendant more than that flowing from the sum of the individual errors.” (People v. Hill
(1998) 17 Cal. 4th 800, 847.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
__________________________, J.
ASHMANN-GERST
We concur:
_____________________________, P. J.
BOREN
____________________________, J.
HOFFSTADT
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