People v. Jimenez CA2/7 ( 2021 )

Filed 9/22/21 P. v. Jimenez CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B297609
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA143132)
v.
ARSENIO JIMENEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, John J. Lonergan, Jr., Judge. Affirmed with
directions.
Rachel Varnell, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance
E. Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Senior Assistant Attorney General, Scott A. Taryle,
Supervising Deputy Attorney General, and Viet H. Nguyen,
Deputy Attorney General, for Plaintiff and Respondent.
INTRODUCTION
Arsenio Jimenez attacked his girlfriend, Byanka A., by
striking her multiple times in the face with his fists, a sharp
object, or both. Byanka suffered lacerations and brain injuries
and spent several weeks in the hospital. The People charged
Jimenez with, among other crimes, infliction of corporal injury on
a cohabitant and assault by means likely to cause great bodily
injury.
On the eve of trial, 15 months after the People initially filed
charges, Jimenez filed a motion to continue the trial. Jimenez
claimed he needed additional time to retain an expert witness
who could provide testimony to support a defense of temporary
insanity. The trial court continued the trial for two months. Two
months later, Jimenez filed another motion to continue the trial,
claiming that the last expert witness his attorney consulted could
not provide the testimony necessary to establish temporary
insanity and that he needed more time to obtain a (new) expert
witness. The trial court denied the motion. A jury ultimately
convicted Jimenez on both counts.
Jimenez argues the trial court erred in denying his second
motion to continue the trial. In the alternative, Jimenez
contends his trial counsel rendered ineffective assistance by
failing to obtain an expert witness who could testify in support of
the temporary insanity defense. Because the trial court did not
abuse its discretion in denying the motion, and because the
record does not demonstrate counsel for Jimenez’s representation
was deficient, we affirm.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. Jimenez Attacks Byanka
In April 2017 Jimenez and Byanka lived together with
their infant daughter, H.J. One morning Jimenez called his
sister, Tiffany J. Tiffany called law enforcement and reported
she was concerned Jimenez might kill himself and his family.
Los Angeles County Sheriff’s deputies arrived at Byanka
and Jimenez’s house and found Byanka unconscious on the floor.
She had puncture wounds between her eyes, her mouth was
swollen, her face was covered in blood, and there was blood
throughout the house. H.J. was uninjured, fastened into a child
car seat several feet from Byanka. Paramedics took Byanka to
the hospital.
Tiffany spoke with Jimenez again later that day and told
law enforcement Jimenez was at a hospital in Santa Clarita.
When deputies arrived at the hospital, they found that Jimenez’s
hands were swollen and that he had lacerations on his knuckles,
bandages around his wrists, and a mark on his neck.
A detective interviewed Jimenez the next day. Jimenez
said he and Byanka were arguing when Byanka got a knife and
threatened to have her brother harm him. Jimenez said Byanka
picked up H.J. and threw her on the couch, which caused H.J. to
cry. Jimenez admitted that he “lost it” or “snapped” and that he
punched Byanka six times. Deputies impounded and searched
Jimenez’s car and found a knife underneath a blue towel. There
was blood on the knife and the towel.
Byanka suffered injuries to several areas of her brain and
spent six weeks in the hospital. She was in a coma for the first
eight days. When she woke up, her right side felt “dead” and she
could not walk. After leaving the hospital, she spent one month
3
at a rehabilitation center learning to walk again and had two
surgeries on her face and mouth. Byanka had no memory of how
she suffered her injuries.
B. The People Charge Jimenez
On May 2, 2017 the People charged Jimenez with
attempted murder (Pen. Code, §§ 187, subd. (a), 664),1 inflicting
corporal injury on a cohabitant resulting in a traumatic condition
(§ 273.5, subd. (a)), and assault by means of force likely to
produce great bodily injury (§ 245, subd. (a)(4)). The People
subsequently added a fourth count for aggravated mayhem
(§ 205). For the first three counts, the People alleged Jimenez
personally inflicted great bodily injury that caused Byanka to
become comatose due to brain injury, within the meaning of
section 12022.7, subdivision (b), and under circumstances
involving domestic violence, within the meaning of section
12022.7, subdivision (e).
C. Jimenez Files Two Motions To Continue the Trial,
and the Trial Court (Effectively) Grants One of Them
The trial court initially set trial for April 6, 2018, but
subsequently continued it to August 21, 2018. On August 17,
2018 Jimenez filed a motion to continue the trial again. At the
hearing on the motion, counsel for Jimenez stated that he was
having a “great deal of difficulty finding [an expert] who was
willing and qualified to take on the assertions that [the defense]
believe[d] [it] should be able to make,” which counsel described as
“critical to [the] defense,” and that the Los Angeles County
Superior Court panel of experts did not have “adequate experts
1 Statutory references are to the Penal Code.
4
for what [the defense was] trying to show . . . . ” Counsel said he
“found one [expert] several months ago who did an evaluation
and then said that they weren’t able to participate further.”
Counsel said a new potential expert, Dr. Barry Hirsch, was “in
the process of evaluating” Jimenez.
When the court asked counsel for Jimenez how long it
would take Dr. Hirsch to complete his evaluation, counsel stated
that Dr. Hirsch had called Jimenez “yesterday,” that counsel
anticipated “they will be meeting soon,” and that counsel could be
ready for trial “within four weeks.” The trial court denied the
motion, but told counsel to file a new motion under section 1050
on August 21, 2018 (the date set for trial) and to “provide the
court with more information with regards to what day we can be
ready, what day [Dr. Hirsch] will have to meet with [Jimenez],”
and when any “report can be provided to the People.” The court
stated that, depending on the information provided in the motion,
the court might grant a reasonable continuance.
The record does not disclose whether Jimenez filed the
motion the court suggested. On August 21, 2018, however, the
court continued the trial date almost two months, to October 15,
2018. On October 15 the court continued the trial to October 17,
and on October 17 to October 19.
On October 19, 2018 Jimenez filed another motion to
continue the trial. Counsel for Jimenez stated in his declaration
that he had been in a trial in Long Beach since late September
and that on November 5, 2018 he was scheduled to begin a trial
in a “multiple defendant, multiple murder case.” He also said
Dr. Hirsch had “not yet returned a report” and had “not come
through.” The trial court denied the motion, stating counsel
began representing Jimenez over 15 months ago, had filed
5
multiple motions to continue, and was attempting to continue the
case for inappropriate reasons.
During the next several days, the court and counsel for
Jimenez had three separate discussions, which for some reason
the court conducted ex parte (i.e., without the prosecutor
present). During the first discussion, on October 22, 2018,
counsel for Jimenez explained he was trying to use a court-
appointed expert because he had limited funds. He said that
there was one expert “we felt was very promising,” but that the
expert, without explanation, “ended up refusing to take the case.”
Counsel explained he subsequently retained Dr. Hirsch, but
Dr. Hirsch had “been slow and difficult to communicate with” and
fell asleep during his evaluation of Jimenez. Counsel also said
that he told Dr. Hirsch that Jimenez intended to present
“testimony that would support a temporary insanity” defense, but
that, because Dr. Hirsch did not conduct the necessary
evaluation, counsel believed Dr. Hirsch was “not prepared to
service the defense as an expert at this point.” Counsel stated
that, when he realized Dr. Hirsch would not provide helpful
testimony, he “cleared with the family coming out of pocket for a
defense expert” and contacted two potential expert witnesses, but
neither was available. The court stated counsel had “plenty of
opportunity” to obtain any expert witnesses necessary to present
a temporary insanity defense, particularly given that Jimenez
was not in custody.
During the second ex parte discussion, on October 24, 2018,
counsel for Jimenez repeated the reasons he needed a
continuance, stating there was “no way this case can be tried
without an expert.” During the third ex parte discussion, on
October 25, 2018, counsel for Jimenez said he had recently
6
contacted a new potential expert, a Dr. Booker, who initially told
counsel he could participate in the trial, but later said he would
not be available until “well after” the trial finished. Counsel
stated he had been “trying to get the right expert” for
approximately six months, but was unsuccessful “because of the
financial difficulties” and because the “panel experts just have
proven incapable of following through.” Counsel reiterated
Dr. Hirsch did not “conduct[ ] the investigation that [counsel]
employed him to conduct and, therefore, [did not] have a report or
an opinion that is compatible with the defense.”
The trial court denied Jimenez’s request for a further
continuance. The court explained that the defense had “gone
through numerous experts” and that counsel for Jimenez had
“the case a year and a half” and could have made “proper
arrangements” to obtain an appropriate expert witness. The
court also told counsel it did not “know enough about . . . your
defense to know what the expert is going to do for you.”
D. The People Present Their Evidence, and Jimenez
Testifies in His Defense
Dr. Gracie-Ann Esther Dinkins, a trauma and acute
surgeon who treated Byanka, testified about Byanka’s facial
injuries. Dr. Dinkins stated Byanka had a triangular shaped
laceration between her eyebrows “that penetrated the skin . . . to
the depth of the actual skull.” In Dr. Dinkins’s opinion, the
laceration “was caused by a penetrating object,” such as a knife.
Dr. Dinkins stated Byanka had several other lacerations on her
face that were also “consistent with the use of” a knife or other
“penetrating object.”
7
Dr. Marvin Pietruszka, a doctor who specialized in
anatomic and clinical pathology, testified for Jimenez. In his
opinion, the lacerations on Byanka’s face were caused by blunt
force trauma, not a sharp object. Dr. Pietruszka also stated that,
in his opinion, even if a knife caused Byanka’s injuries, it could
not have been the knife recovered from Jimenez’s car.
A criminologist testified she performed DNA analyses of
the blood obtained in the investigation. The criminologist
concluded that Jimenez was the “major contributor,” and Byanka
a “possible minor contributor,” to the blood found on the knife
and that the blood at the residence was from Jimenez and
Byanka.
Jimenez testified in his defense. According to Jimenez, on
the day of the incident he and Byanka were arguing about how to
raise H.J. At one point, Byanka said Jimenez was going to cause
her kids to be taken from her. She pulled out a knife and
threatened to stab Jimenez if that happened.2 Byanka threw the
knife on the floor and said she would have her “brother do the
dirty work.”
Next, according to Jimenez, Byanka picked up H.J. and
said that H.J. did not look like her and that she was going to kill
the baby. Byanka threw H.J. on the couch, and H.J. screamed.
Jimenez wanted to help H.J., but Byanka picked up the knife and
told Jimenez that, if he touched H.J., she would stab him.
Jimenez then hit Byanka in the face six times. He did not
remember what happened immediately after that and “kind of
blacked out” after “punching her.”
2 Byanka has three other children. Jimenez is not their
father.
8
Jimenez testified he next remembered standing over
Byanka and putting H.J. into her car seat. He picked up the
knife, went into the kitchen, and slit his wrists. He grabbed a
towel, wrapped the knife in the towel, went to his car, and called
Tiffany.
E. A Jury Convicts, and the Trial Court Sentences
The jury convicted Jimenez of inflicting corporal injury on a
cohabitant resulting in a traumatic condition and assault by
means of force likely to produce great bodily injury. The jury also
found true the allegations that, in the commission of both
offenses, Jimenez personally inflicted great bodily injury that
caused Byanka to become comatose due to brain injury and under
circumstances involving domestic violence.3
On the conviction for inflicting corporal injury on a
cohabitant, the trial court sentenced Jimenez to the upper term
of four years, plus five years for the enhancement under section
12022.7, subdivision (b). On the conviction for assault by means
of force likely to produce great bodily injury, the court sentenced
3 The jury acquitted Jimenez of attempted murder and
deadlocked on the lesser included offenses of attempted voluntary
manslaughter in the heat of passion and attempted voluntary
manslaughter based on imperfect self-defense or defense of
another. The jury also deadlocked on the aggravated mayhem
count. The court declared a mistrial on the lesser included
offenses of attempted murder and, on the People’s motion,
dismissed the mayhem count.
9
Jimenez to the middle term of three years, but stayed execution
of the sentence under section 654.4 Jimenez timely appealed.
DISCUSSION
A. The Court Did Not Abuse Its Discretion in Denying
Jimenez’s Second Motion for a Continuance
Jimenez contends he demonstrated good cause for a
continuance by showing he needed additional time to obtain an
expert to testify in support of his defense of temporary insanity.
He argues the court’s order denying his request to continue the
trial was arbitrary and violated his due process rights.
Continuances of criminal trials “shall be granted only upon
a showing of good cause.” (§ 1050, subd. (e); see Cal. Rules of
Court, rule 4.113 [“Motions to continue the trial of a criminal case
are disfavored and will be denied unless the moving party . . .
presents affirmative proof in open court that the ends of justice
require a continuance.”].) “In making that determination, courts
consider whether the moving party has acted diligently, the
anticipated benefits of the continuance, the burden that the
continuance would impose on witnesses, jurors, and the court,
and whether a continuance will accomplish or hinder substantial
4 On the conviction for assault, the court stated it was
imposing and staying the five-year enhancement under section
12022.7, subdivision (b). On both the conviction for assault and
the conviction for inflicting corporal injury on a cohabitant, the
court stated it was imposing and staying the enhancement under
section 12022.7, subdivision (e). The court, however, did not
impose a three-, four-, or five-year enhancement under
subdivision (e). We will direct the court to impose terms under
that subdivision and stay execution of those terms.
10
justice.” (People v. Reed (2018) 4 Cal.5th 989, 1004; see People v.
Doolin (2009) 45 Cal.4th 390, 450.)
“Trial courts have wide discretion to determine whether
[good] cause exists.” (People v. Reed, supra, 4 Cal.5th at p. 1004;
see People v. Peoples (2016) 62 Cal.4th 718, 749; People v. Doolin,
supra, 45 Cal.4th at p. 450.) Where, as here, the trial court
denies a motion for a continuance, “we review all circumstances
relevant to the motion to determine whether the trial court’s
decision was so arbitrary as to deprive the movant of due
process.” (Reed, at p. 1004; see Doolin, at p. 450.) “‘“There are no
mechanical tests for deciding when a denial of a continuance is so
arbitrary as to violate due process. The answer must be found in
the circumstances present in every case, particularly in the
reasons presented to the trial judge at the time the request is
denied.”’” (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1181,
disapproved on another ground in People v. Rangel (2016)
62 Cal.4th 1192, 1216; see People v. Mungia (2008) 44 Cal.4th
1101, 1118.) “‘The party challenging a ruling on a continuance
bears the burden of establishing an abuse of discretion’” and
prejudice, “‘and an order denying a continuance is seldom
successfully attacked.’” (Peoples, at p. 749; see Doolin, at p. 450;
People v. Beames (2007) 40 Cal.4th 907, 920.)
Although Jimenez attempts to treat his efforts to continue
the trial as a single request, Jimenez in fact filed two separate
motions. He first moved to continue the trial in August 2017,
when his attorney argued he needed three to four weeks for
Dr. Hirsch to evaluate Jimenez. Although the court initially
denied the motion (and invited Jimenez to file a new motion with
more detail), four days later the trial court continued the trial
nearly two months—longer than Jimenez had requested.
11
Jimenez cannot show the trial court’s ruling on his first motion to
continue the trial was an abuse of discretion or caused him
prejudice. (See People v. Doolin, supra, 45 Cal.4th at p. 450
[“Absent a showing of . . . prejudice, the trial court’s denial does
not warrant reversal.”]; People v. McCann (1939) 34 Cal.App.2d
376, 378 [defendant “was not prejudiced” where he “moved for a
continuance of four or five days, which was denied,” but the court
nevertheless “continued [the trial] for seven days” to allow the
defendant to “procure the testimony of his allegedly absent
witness”].)
Two months later, Jimenez filed another motion to continue
the trial. This time, counsel for Jimenez stated that, because
Dr. Hirsch would not give the testimony Jimenez had anticipated
he would give, Jimenez needed additional time to obtain another
expert witness. It is the trial court’s order denying this motion
that is the subject of this appeal.
Where a defendant seeks a continuance to obtain the
testimony of a witness, “[g]ood cause requires a defendant to
show that he or she exercised due diligence in pursuing the
witness’s presence, the witness’s expected testimony was
material and not cumulative, the testimony could be obtained
within a reasonable time, and the facts the witness would provide
could not otherwise be proven.” (People v. Caro (2019) 7 Cal.5th
463, 499-500; see People v. Roybal (1998) 19 Cal.4th 481, 504.)
The trial court did not abuse its discretion or violate Jimenez’s
due process rights in ruling Jimenez did not satisfy all of these
requirements.
Whether Jimenez exercised reasonable diligence in
attempting to obtain an expert witness to testify on the defense of
temporary insanity is not clear from the record. Counsel for
12
Jimenez consulted with at least two experts, and during his
October 25, 2018 ex parte discussion with the court, counsel
stated he spent approximately six months trying to retain the
right expert witness. As the court observed, however, the People
charged Jimenez 17 months earlier, in May 2017 (although the
preliminary hearing was not until January 2018), counsel was
retained to represent Jimenez shortly thereafter, and counsel did
not say whether he had consulted with any potential experts
during the first 11 months of his work on the case. (See People v.
Jenkins (2000) 22 Cal.4th 900, 958 [“One year and nine months
. . . between the preliminary hearing and the evidentiary portion
of the trial” was “ample time [for the defendant] to investigate, to
examine the discovered material that had been provided by the
prosecution, and to prepare to meet the case against him.”];
People v. McFadden (1970) 4 Cal.App.3d 672, 687 [three months
and eight days was enough time for the defendant “to obtain
expert medical testimony favorable to [the defendant], if such
could be obtained,” about the defendant’s “ability to understand
questions asked of him” during his confession].) In addition,
counsel’s description of his efforts during the prior six months to
obtain the expert witness he was looking for was vague.
Although counsel mentioned one potential expert he thought
looked promising (but who ultimately decided not to testify),
counsel did not say when he learned the witness would not be
able to testify or how long he waited before consulting with
Dr. Hirsch.
But even if counsel for Jimenez exercised reasonable
diligence in seeking to obtain the expert testimony he thought he
needed, Jimenez did not meet the other requirements for a
continuance. In particular, Jimenez did not meet his burden to
13
show he would be able to obtain material testimony from an
expert witness. While counsel for Jimenez stated he was seeking
testimony that could establish a temporary insanity defense, he
did not describe—even in general terms—the facts an expert
witness would testify to that might support such a defense. (See
People v. Beeler (1995) 9 Cal.4th 953, 1004 [counsel’s statements
that the defendant potentially had brain damage that
“‘appear[ed] relevant’ and ‘suggest[ed]’ problems with defendant’s
mental state” were too general to justify a continuance]; People v.
Fountain (1915) 170 Cal. 460, 464 [“[i]t was necessary to show
what facts it was expected . . . witnesses would testify to in order
that the court might determine whether the testimony it was
expected they would give would be material to the defendant, and
so warrant the granting of a continuance”]; People v. Walton
(1929) 97 Cal.App. 782, 783 [trial court did not abuse its
discretion in denying a motion to continue the trial where “the
affidavit fail[ed] to state the facts to which the witnesses would
testify if present”].) To establish an insanity defense, a defendant
must “‘prove[ ] by a preponderance of the evidence that he or she
was incapable of knowing or understanding the nature and
quality of his or her act [or] of distinguishing right from wrong at
the time of the commission of the offense’” because of some
“‘mental disease or defect.’” (People v. Blakely (2014)
230 Cal.App.4th 771, 774; see People v. Lawley (2002) 27 Cal.4th
102, 169-170 & fn. 26.) Counsel for Jimenez did not explain what
mental disease or defect an expert would testify Jimenez suffered
from that rendered Jimenez temporarily insane when he
attacked Byanka. As the trial court stated during the last
ex parte discussion with counsel for Jimenez, the court did not
14
fully understand what Jimenez’s defense was or how the expert’s
testimony was going to support it.
But the most glaring shortcoming with Jimenez’s second
motion to continue the trial was that he did not show he could
obtain the desired testimony within a reasonable time. Counsel
for Jimenez initially stated in August 2018 that Dr. Hirsch
needed three or four weeks to prepare an opinion. It didn’t
happen. In October 2018, when counsel for Jimenez no longer
anticipated Dr. Hirsch would provide a favorable opinion, counsel
did not tell the court how long he needed to obtain a new expert,
how long the expert would need to evaluate Jimenez and prepare
an opinion, or how long counsel would need to prepare for trial
based on the new expert’s opinion. Given that counsel for
Jimenez had already consulted with two experts who were either
unable or unwilling to provide the testimony Jimenez was hoping
for, the court acted within its discretion in finding it was unlikely
Jimenez would be able to obtain within a reasonable time (or
ever) the desired-but-elusive expert witness. (See People v.
Howard (1992) 1 Cal.4th 1132, 1171 [trial court did not abuse its
discretion in denying the defendant’s request for a continuance to
obtain expert testimony where the “defendant did not show that
any expert existed who would be willing and able to offer
material testimony within a reasonable time” and the “defendant
could only offer the prospect of further delay while he searched”],
disapproved on another ground in People v. Rhoades (2019)
8 Cal.5th 393, 425, fn. 12; see also People v. Roybal, supra,19 Cal.4th at p. 505 [trial court did not abuse its discretion in
denying a motion to continue an evidentiary hearing where
“defense counsel’s vague expressions of hope that an appropriate
expert could be found and made available without undue delay
15
were not encouraging”]; People v. Beeler, supra, 9 Cal.4th at
p. 1004 [trial court did not abuse its discretion in denying a
motion for a continuance where the “lengthy delays and prior
continuances permit[ted] serious doubt whether the additional
time requested would have yielded meaningful evidence” and
counsel stated only that a “doctor believe[d] that he [could]
conclude the medical work needed” for the defense within a few
months].)
B. Jimenez Has Not Shown His Trial Counsel Provided
Ineffective Assistance
“To make out a claim that counsel rendered constitutionally
ineffective assistance, ‘the defendant must first show counsel’s
performance was deficient, in that it fell below an objective
standard of reasonableness under prevailing professional norms.
Second, the defendant must show resulting prejudice, i.e., a
reasonable probability that, but for counsel’s deficient
performance, the outcome of the proceeding would have been
different.’” (People v. Hoyt (2020) 8 Cal.5th 892, 958; see People
v. Mai (2013) 57 Cal.4th 986, 1009.) “Whether counsel’s
performance was deficient, and whether any deficiency
prejudiced defendant, are mixed questions of law and fact subject
to our independent review.” (In re Gay (2020) 8 Cal.5th 1059,
1073; accord, In re Long (2020) 10 Cal.5th 764, 774.)
“Usually, ‘ineffective assistance [of counsel claims are]
more appropriately decided in a habeas corpus proceeding.’”
(People v. Hoyt, supra, 8 Cal.5th at p. 958.) On direct appeal, “we
may reverse ‘only if (1) the record affirmatively discloses counsel
had no rational tactical purpose for the challenged act or
omission, (2) counsel was asked for a reason and failed to provide
16
one, or (3) there simply could be no satisfactory explanation.’”
(People v. Arredondo (2019) 8 Cal.5th 694, 711; see People v.
Johnsen (2021) 10 Cal.5th 1116, 1165; People v. Mai, supra,
57 Cal.4th at p. 1009.) “‘[W]here counsel’s trial tactics or strategic
reasons for challenged decisions do not appear on the record, we
will not find ineffective assistance of counsel on appeal unless
there could be no conceivable reason for counsel’s acts or
omissions.’” (Johnsen, at p. 1165.) “‘All other claims of
ineffective assistance are more appropriately resolved in a habeas
corpus proceeding.’” (Hoyt, at p. 958.)
Jimenez argues his trial counsel rendered ineffective
assistance by failing to obtain the expert witness that he was
looking for to support a temporary insanity defense. Jimenez
appears to contend there was no rational tactical purpose for his
trial counsel’s actions because his counsel admitted he wanted to
present the defense. The record does not affirmatively show,
however, counsel’s failure to obtain and call an expert witness on
temporary insanity was the result of deficient performance, nor
can we say there is no satisfactory explanation for counsel’s
conduct.
As discussed, the evidence on whether counsel for Jimenez
was diligent in seeking to obtain the sought-after expert was
mixed. Counsel for Jimenez stated he did not try to retain an
expert witness until a few months before the trial date. But
counsel told the court Jimenez’s lack of funds limited the
potential expert witnesses counsel could consult with. Moreover,
the record reflects that, once counsel began consulting with
experts, counsel’s inability to obtain one was not for lack of
trying. After consulting with one expert who ultimately decided
not to testify, counsel concluded Dr. Hirsch’s testimony would not
17
be helpful—a determination Jimenez does not challenge on
appeal. (See People v. Bolin (1998) 18 Cal.4th 297, 334 [“Whether
to call certain witnesses is [generally] a matter of trial tactics,
unless the decision results from unreasonable failure to
investigate.”]; see also People v. Frederickson (2020) 8 Cal.5th
963, 1001.) A very reasonable explanation for counsel’s failure to
obtain an expert was that counsel could not find an expert to say
what he (or Jimenez) wanted the expert to say.
Moreover, Jimenez did not show what specific testimony an
expert could have offered to support the defense of temporary
insanity or that any expert was available and willing to offer such
testimony. To show that counsel rendered ineffective assistance
by failing to call an expert witness, the defendant must identify
“‘exculpatory or impeachment evidence that counsel could have
revealed by . . . examination of defense experts . . . that would
have produced a more favorable result at trial. . . . Such claims
must be supported by declarations or other proffered testimony
establishing both the substance of the omitted evidence and its
likelihood for exonerating the accused.’” (People v. Bolin, supra,
18 Cal.4th at p. 334.)
Jimenez asserts an expert “could have explained that when
[Jimenez] said he ‘lost it,’ he was suffering from temporary
insanity or some other psychological impairment that caused him
to react the way he did . . . .” But Jimenez’s speculation about
what a hypothetical expert might have said is not sufficient. (See
People v. Mai, supra, 57 Cal.4th at p. 1018 [“‘“We cannot evaluate
alleged deficiencies in counsel’s representation solely on
defendant’s unsubstantiated speculation.”’”].) Jimenez did not
show what mental disease or defect an expert witness could have
testified Jimenez suffered from, or how the disease or defect
18
prevented Jimenez from understanding the nature of his actions
or distinguishing right from wrong. Indeed, there was strong
evidence Jimenez was not temporarily insane. For example, the
day after the incident Jimenez admitted that he remembered
punching Byanka six times and that he did so because he was
“tired of her throwing the baby,” which suggested Jimenez
understood the nature of his actions.
Finally, Jimenez points to his trial attorney’s statements to
the court that he had difficulty preparing for trial because of
family obligations and that he was involved in trials shortly
before and shortly after Jimenez’s trial. But Jimenez does not
identify any specific deficiency in counsel’s performance caused
by counsel’s other obligations (except for failing to obtain the
“right” expert witness), nor does he say how he was prejudiced by
counsel’s other obligations. Because the record does not clearly
and affirmatively demonstrate Jimenez’s counsel provided
ineffective assistance, his argument is more appropriately
resolved on a petition for habeas corpus.
19
DISPOSITION
The convictions are affirmed. The trial court is directed to
impose terms under section 12022.7, subdivision (e), and then
stay execution of those terms.
SEGAL, Acting P. J.
We concur:
FEUER, J.
IBARRA, J.*
* Judge of the Santa Clara County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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