People v. Tschida CA4/1 ( 2016 )

Filed 6/10/16 P. v. Tschida CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D067262
Plaintiff and Respondent,
v. (Super. Ct. No. SCE326600)
CASEY MICHAEL TSCHIDA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Lantz
Lewis, Judge. Affirmed.
Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Meagan J.
Beale and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and
Respondent.
Casey M. Tschida appeals a judgment following his jury conviction of one count
of first degree murder (Pen. Code, § 187, subd. (a))1 and true findings on allegations that
he committed the murder while lying in wait (§ 190.2, subd. (a)(15)) and personally
discharged a gun, causing death (§ 12022.53, subd. (d)). On appeal, he contends: (1) the
trial court erred by instructing with CALCRIM No. 625 on voluntary intoxication without
modifying it to address the lying in wait allegations; (2) the court erred by admitting
evidence of his bad character; (3) the prosecutor committed prejudicial error or
misconduct in cross-examining him and misstating the law in closing argument; (4) the
court erred by not holding a Marsden2 hearing when shortly before the jury returned its
verdict he complained about his counsel's pretrial preparation; and (5) the cumulative
prejudice from multiple errors denied him a fundamentally fair trial.
FACTUAL AND PROCEDURAL BACKGROUND
On November 26, 2012, Tschida purchased a handgun and two semiautomatic
rifles at a La Mesa firearms store. Because the handgun did not have an external safety,
it could be fired if a person's finger was firmly placed on the trigger and there was a
round in the chamber. Tschida passed the handgun safety test and, after a 10-day waiting
period, picked up the firearms.
In late November or early December 2012, Tschida met Jennifer Krajnak at Dirk's
Niteclub in Lemon Grove. She seemed interested in him at times and he pursued a dating
1 All statutory references are to the Penal Code unless otherwise specified.
2 People v. Marsden (1970) 2 Cal.3d 118.
2
relationship with her. They occasionally exchanged phone calls and text messages. On
December 22, responding to a text message from Krajnak, Tschida wrote: "I get what
was meant by goober now, and why my gut told me to take insult to it. I will never stand
by 4 that kind of treatment!!!!!!"
On January 2, 2013, Krajnak sent Tschida a text message asking him to meet her
for shots. At about 10:30 p.m., he went to Dirk's, parking his truck in the GTM Store's
lot across the street. He and Krajnak appeared to be having a good time together.
Krajnak drank five or six beers and Tschida drank five or six glasses of Crown Royal and
Coke. As they walked outside to smoke a cigarette, Krajnak bumped into Jeanette
Malanga, who was playing pool. Krajnak apologized to her and continued walking with
Tschida. On their return, Tschida approached Malanga and told her, "I heard you say that
you were going to hit me on the head with a pool cue." Tschida and Malanga argued, but
their argument was quickly broken up.
After that incident, Tschida and Krajnak started bickering and she called him an
asshole. When he offered to buy her drink, she replied, "I don't want anything from you.
That's why you don't have a girlfriend, because you're an asshole." Tschida left the bar,
got in his truck, and drove toward his house, about one and one-half miles away.
Because Krajnak appeared very agitated and upset, Clyde Stevenson, her friend,
asked her if she was all right. She replied she was okay and not to worry. He offered her
a ride home, but she said she wanted to walk. She was staying with a friend at the Olive
Tree Apartments, about one block from Dirk's.
3
Six and one-half minutes after he left, Tschida drove his truck back to the area,
parking in a lot next to the Olive Tree Apartments. Tschida waited there for Krajnak.
His truck remained parked in the same place for seven and one-half minutes. At Dirk's
closing time, Krajnak left and walked toward her apartment, carrying an electronic tablet.
At about 1:46 a.m., Tschida got out of his truck with a handgun in his waistband and
approached Krajnak. He shot her in the left side of her head.
After shooting Krajnak, Tschida got back in his truck and began driving with his
truck's headlights off. He stopped near Krajnak's body, took her tablet from her hands,
and wiped it clean of fingerprints. He got back in his truck and drove away. At about
2:00 a.m., two San Diego Sheriff's deputies found Krajnak, still alive, lying in the street.
She died shortly thereafter as a result of a single gunshot wound to the left side of her
head fired within inches of her head.
Tschida drove to his house, got his dog, and packed up his firearms and other
belongings. He drove north and discarded his cell phone so that he could not be tracked.
He arrived at his mother's house in Happy Valley, Oregon, about 1,091 miles from his
house.
On January 5, 2013, Portland police took Tschida into custody. When San Diego
homicide detectives arrived in Oregon and introduced themselves to Tschida, he replied:
"For the murder of who[m]?"
During a search of his truck, officers found two rifles, a shotgun, and a long gun.
A rifle and the shotgun were loaded. A large amount of various types of ammunition was
4
also found.3 Officers found Krajnak's blood on the driver's side armrest door handle of
Tschida's truck. During a search of Tschida's home, officers found six .38 caliber bullets,
a laptop computer, gun cleaning supplies, manuals for two firearms, and a rifle scope.
One and one-half months later, a Smith and Wesson handgun was found in the
Willamette River in Oregon. An expended 9 mm firearm casing found near Krajnak's
body was fired from that gun. A minimum of six and three-fourths pounds of weight was
required on the trigger to fire the gun.
An information charged Tschida with one count of murder (§ 187, subd. (a)) and
alleged that in committing the murder he personally discharged a firearm and caused
great bodily injury and death to a person (§ 12022.53, subd. (d)). A subsequent amended
information added a special circumstance allegation that Tschida committed the murder
by means of lying in wait (§ 190.2, subd. (a)(15)).
At trial, the prosecution presented evidence substantially as described above.
Tschida testified in his defense. He testified he served eight years in the Navy and served
time in Iraq. After leaving the Navy, he worked for a civilian contractor as a helicopter
mechanic. In October 2012, his divorce from his second wife was finalized. In late
November, he decided to buy more guns because he no longer had children living with
him. He had experience with guns during his time in the Navy and, after leaving the
Navy, enjoyed target shooting with friends. He carried the handgun he purchased with
3 Officers found over 331 shotgun shells, 382 .223 caliber cartridges, over 800 nine-
millimeter cartridges, 142 .357 and .38 cartridges, and 480 5.565 millimeter cartridges.
5
him at all times, except at work, after an intoxicated stranger threatened him with a gun.
On the night of January 2, 2013, he had the gun in his possession.
Tschida testified he met Krajnak at Dirk's Niteclub and asked her out on a date.
She declined because she had a boyfriend. After Krajnak broke up with her boyfriend,
she and Tschida went out on a date and he pursued a dating relationship with her. In
December, they went to Dirk's, but Krajnak began flirting with another man. Tschida got
angry, confronted the man, and later told Krajnak to never call him again.
In late December, Krajnak sent Tschida a "Merry Christmas" text and he decided
to resume contact with her. He wanted a romantic relationship with her and she knew it.
On January 2, 2013, Tschida was depressed and lonely. Krajnak sent him a text
asking him to meet her for shots. He drove to Dirk's, parking across the street, and met
Krajnak inside. Things went well between them at first, but changed after Krajnak
bumped into a pool player. The pool player said she was going to "smack a cue ball over
that bitch's head." Tschida thought he was defending Krajnak's honor by having words
with the pool player, but Krajnak became upset with him and called him a jerk. Wanting
to insult her, Tschida told Krajnak she had "giz" on her shirt. Krajnak told him the
reason he did not have a girlfriend was because he tried too hard. Feeling woozy,
Tschida left the bar and got into his truck. He testified he drank more than six mixed
drinks that night. The bartender joked he must have drunk an entire fifth of Crown Royal
or Captain Morgan. Tschida felt wobbly, had blurry vision, and believed he was drunk.
As he drove past a sheriff's substation, he realized he was too drunk to drive. Thinking
he might throw up, he pulled over and stood outside his truck for a few minutes. Because
6
he was too drunk to drive, he decided to ask Krajnak if he could stay at her apartment that
night. He also hoped to salvage the evening and that something might happen between
them. Tschida drove back toward Dirk's, parked near Krajnak's apartment building, and
waited for her to leave the bar.
When Tschida saw Krajnak walking from the bar, he got out of his truck and
approached her. He told her he was too drunk to drive and asked if he could stay with
her. She replied: "Yeah, fucking right. I only wanted you to come out and buy me
drinks." She also said she did not have anyone else to hang out with and was bored. As
he pulled his hands from his zip-up hooded sweatshirt, Tschida knocked the gun out of
the front of his pants. He bent down, picked the gun up, and then "snapped," shooting
Krajnak in the head. He "freaked out" when he saw blood everywhere and realized he
had killed her. He did not call 911 because he thought she was dead. He went back to
his truck, but remembered he had handled Krajnak's electronic tablet earlier that night.
He drove his truck and parked near her body. He rolled her onto her back, took her tablet
from her hand, wiped it clean of fingerprints, and then fled. He drove to his home,
packed up everything of value, including his dog, guns, ammunition, money, and a tent.
He drove north without much of a plan and ultimately decided to go to his family's home
in Oregon. Although he had suicidal thoughts, he decided not to kill himself because of
his dog. The day after arriving in Oregon, he tossed his gun into the Willamette River.
His parents took him to the V.A. hospital in Portland and checked him into the mental
health unit.
7
Tschida denied he went to Krajnak's apartment with the intent to kill her. He
snapped because of her statements about only wanting him to buy her drinks and because
she had no one else to hang out with.
The jury found Tschida guilty of first degree murder and found true the related
allegations. The trial court sentenced him to life in prison without the possibility of
parole, plus 25 years to life. Tschida timely filed a notice of appeal.
DISCUSSION
I
Instruction with CALCRIM No. 625 on Voluntary Intoxication
Tschida contends the trial court erred by instructing with CALCRIM No. 625 on
voluntary intoxication without modifying it to address the lying in wait allegations.
A
At trial, the prosecution had two theories for Tschida's commission of first degree
murder, namely that (1) the murder was willful, deliberate, and premeditated, and (2) the
murder was committed while lying in wait or immediately thereafter. Lying in wait was
also alleged as a special circumstance of the murder.
During trial, the trial court discussed with counsel its proposed jury instructions,
indicating it would give the instructions as presented in the packet it gave counsel unless
counsel objected or expressed a need to discuss an instruction. The prosecutor stated he
had included CALCRIM No. 625 to instruct on intoxication in homicide cases. Tschida's
counsel stated an instruction on voluntary intoxication, either CALCRIM No. 625 or
No. 3426, should be given, explaining the latter instruction was simpler. He argued
8
CALCRIM No. 3426 dealt with the issue of specific intent, which was involved in almost
all of the charges against Tschida, including the lying in wait allegation. He argued: "I
want to make sure it's clear that it [i.e., voluntary intoxication] can be used for all of
those. [CALCRIM No.] 3426 actually has it broken down that way. It goes down and
actually goes to the charge and then it goes to specific intent." The court replied: "Well,
[CALCRIM No.] 625, however, specifically is asking for intoxication for homicide
cases." Tschida's counsel then stated: "That's fine. We will stick with that." (Italics
added.)
The trial court instructed the jury on the prosecution's two theories of first degree
murder and instructed on the lying in wait theory, stating:
"The defendant is guilty of first degree murder if the People have
proved that the defendant murdered while lying in wait or
immediately thereafter. The defendant murdered by lying in wait if:
[¶] 1. He concealed his purpose from the person killed; [¶] 2. He
waited and watched for an opportunity to act; [¶] and [¶] 3. Then,
from a position of advantage, he intended to and did make a surprise
attack on the person killed.
"Lying in wait does not need to continue for any particular period of
time, but its duration must be substantial enough to show a state of
mind equivalent to deliberation and premeditation.
"A person can conceal his purpose even if the person killed is aware
of the person's physical presence. [¶] The concealment can be
accomplished by ambush or some other secret plan."
The court then instructed with CALCRIM No. 625 on voluntary intoxication, stating:
"You may consider evidence, if any, of voluntary intoxication only
in a limited way. You may consider that evidence only in deciding
whether the defendant acted with an intent to kill, or the defendant
acted with deliberation and premeditation.
9
"A person is voluntarily intoxicated if he becomes intoxicated by
willingly using any intoxicating drug, drink, or other substance
knowing that it can produce an intoxicating effect, or willingly
assuming the risk of that effect.
"You may not consider evidence of voluntary intoxication for any
other purpose."4
The court also instructed with CALCRIM No. 728 on the special circumstance of murder
committed while lying in wait.
In closing argument, Tschida's counsel stated the jurors had been instructed on
voluntary intoxication, which they could consider for a limited purpose. Because there
was evidence Tschida drank a lot the night of the incident and was very intoxicated, his
counsel argued the jury could consider his intoxication on the issue of whether he had the
intent to kill or acted with deliberation or premeditation. He also argued voluntary
4 In comparison, CALCRIM No. 3426, which was not given by the court, states:
"You may consider evidence, if any, of the defendant's voluntary intoxication only in a
limited way. You may consider that evidence only in deciding whether the defendant
acted [or failed to do an act] with . [¶] A person is voluntarily intoxicated if he or
she becomes intoxicated by willingly using any intoxicating drug, drink, or other
substance knowing that it could produce an intoxicating effect, or willingly assuming the
risk of that effect. [¶] In connection with the charge of the People have the burden of proving beyond a
reasonable doubt that the defendant acted [or failed to act] with . If the People have not met this burden, you must find
the defendant not guilty of . [¶] [¶] You may not consider evidence of voluntary intoxication for
any other purpose. [Voluntary intoxication is not a defense to .]"
10
intoxication also affected the issue of lying in wait, which requires a state of mind
equivalent to deliberation and premeditation.
B
"[T]he trial court normally must, even in the absence of a request, instruct on
general principles of law that are closely and openly connected to the facts and that are
necessary for the jury's understanding of the case." (People v. Carter (2003) 30 Cal.4th
1166, 1219.) A court has a duty to instruct on a defendant's theory of defense if there is
substantial evidence to support that defense. (People v. San Nicolas (2004) 34 Cal.4th
614, 669 (San Nicolas).) However, voluntary intoxication is not a defense. (Ibid.)
Rather, a defense theory of voluntary intoxication is "an attempt to raise a reasonable
doubt as to a specific element of the crime and [does] not trigger a judge's sua sponte
duty to instruct." (Id. at p. 670.) Evidence of intoxication is "relevant only to the extent
that it bears on the question of whether the defendant actually had the requisite specific
mental state." (People v. Saille (1991) 54 Cal.3d 1103, 1119.) Accordingly, "the burden
falls on the defendant to request a 'pinpoint' instruction [on voluntary intoxication]."
(San Nicolas, at p. 669.) "[A]n instruction on voluntary intoxication, explaining how
evidence of a defendant's voluntary intoxication affects the determination whether
defendant had the mental states required for the offenses charged, is a form of pinpoint
instruction that the trial court is not required to give in the absence of a request." (People
v. Bolden (2002) 29 Cal.4th 515, 559.) "[S]uch a pinpoint instruction does not involve a
'general principle of law' as that term is used in the cases that have imposed a sua sponte
duty of instruction on the trial court." (Saille, at p. 1120.)
11
C
The People assert, and we agree, that Tschida forfeited or waived any instructional
error by the trial court because he did not object to CALCRIM No. 625 or request
modification of CALCRIM No. 625 to address the lying in wait theories of first degree
murder and the special circumstance allegation. (Cf. San Nicolas, supra, 34 Cal.4th at
p. 669 [defendant forfeited any instructional error by not objecting below and instead
approving modified instruction]; People v. Lee (2011) 51 Cal.4th 620, 638 [failure to
request clarification of an otherwise correct instruction forfeits claim of error].) As
discussed above, when the trial court discussed its proposed jury instructions with
counsel, Tschida's counsel stated an instruction on voluntary intoxication, either
CALCRIM No. 625 or No. 3426, should be given and asserted CALCRIM No. 3426 was
simpler. He argued CALCRIM No. 3426 dealt with the issue of specific intent, which
was involved in almost all of the charges against Tschida, including the lying in wait
allegation. He argued: "I want to make sure it's clear that it [i.e., the voluntary
intoxication instruction] can be used for all of those. [CALCRIM No.] 3426 actually has
it broken down that way. It goes down and actually goes to the charge and then it goes to
specific intent." The court replied: "Well, [CALCRIM No.] 625, however, specifically is
asking for intoxication for homicide cases." Tschida's counsel then stated: "That's fine.
We will stick with that." (Italics added.)
Based on the record, it is clear Tschida's counsel did not object to CALCRIM
No. 625 or request its modification or replacement with CALCRIM No. 3426 and instead
expressly agreed with the court's proposed use of CALCRIM No. 625 to address the issue
12
of voluntary intoxication. By stating, "[t]hat's fine," his counsel expressly agreed with
the court's proposed use of CALCRIM No. 625. By further stating, "[w]e will stick with
that," his counsel also implicitly agreed with the form of CALCRIM No. 625 proposed
by the court without any modification. Therefore, Tschida forfeited or waived any error
by the court in instructing with CALCRIM No. 625 on voluntary intoxication. (Cf. San
Nicolas, supra, 34 Cal.4th at p. 669; People v. Lee, supra, 51 Cal.4th at p. 638.)
Contrary to Tschida's assertion, his counsel's initial suggestion that CALCRIM
No. 3426 may be the simpler instruction did not constitute an objection to the court's
proposed use of CALCRIM No. 625. Likewise, to the extent his counsel argued the
instruction on voluntary intoxication, whether with CALCRIM No. 625 or 3426, should
apply to both specific intent and the lying in wait allegation, he forfeited or waived any
objection to the form of CALCRIM No. 625, as proposed and given by the court, which
did not include any reference to lying in wait. Because voluntary intoxication is not a
defense, an instruction on voluntary intoxication is a pinpoint instruction that must be
requested by the defendant. (People v. Bolden, supra, 29 Cal.4th at p. 559.) Therefore,
Tschida had the obligation to request a specific instruction on voluntary intoxication.
(Cf. People v. Shoals (1992) 8 Cal.App.4th 475, 490 [when court generally instructs on a
point, defendant must request a more specific instruction or be deemed to have waived
any error]; People v. Beeler (1995) 9 Cal.4th 953, 983 ["In the absence of a request, . . . a
trial court is under no obligation to amplify or explain an instruction."].) Furthermore,
because he did not request clarification of the court's proposed form of CALCRIM
No. 625 to include its application to lying in wait, he is deemed to have forfeited or
13
waived any error in that instruction as given by the court. (People v. Loza (2012) 207
Cal.App.4th 332, 349-350.)
Furthermore, contrary to Tschida's assertion, CALCRIM No. 625, as given by the
court, was a correct statement of law, indicating the jury could consider evidence of his
voluntary intoxication in determining whether he acted with the intent to kill or with
deliberation and premeditation. The absence of language indicating evidence of
voluntary intoxication could also apply to the jury's consideration of the lying in wait
allegations did not make CALCRIM No. 625, as given by the court, either an incomplete
or incorrect statement of the law. Although Tschida argues CALCRIM No. 625, as given
by the court, erroneously precluded the jury from considering evidence of voluntary
intoxication on any issue other than specific intent or deliberation and premeditation
(e.g., jury could not consider evidence of voluntary intoxication on issue of lying in wait),
he forfeited or waived any such error by not objecting to the court's form of CALCRIM
No. 625 and/or not requesting an appropriate modification to that pinpoint instruction to
include its application to the lying in wait allegations. (People v. Beeler, at p. 983;
People v. Loza, at pp. 349-350.) Likewise, Tschida forfeited or waived any constitutional
due process claim based on the court's instruction with CALCRIM No. 625 by his failure
to object to that instruction on that ground. (In re Sheena K. (2007) 40 Cal.4th 875, 880-
881.)
D
Assuming arguendo Tschida did not forfeit or waive the trial court's purported
error by instructing with CALCRIM No. 625, we nevertheless conclude that purported
14
instructional error was harmless. In determining whether an erroneous instruction on
voluntary intoxication had a prejudicial effect, we apply the harmless error standard of
People v. Watson (1956) 46 Cal.2d 818, 836 (Watson), and reverse the judgment only if
the defendant shows it is reasonably probable he or she would have obtained a more
favorable verdict absent the error based on the entire cause, including the evidence.5
(People v. Mendoza (1998) 18 Cal.4th 1114, 1134-1135; People v. Moye (2009) 47
Cal.4th 537, 541; People v. Breverman (1998) 19 Cal.4th 142, 178; People v. Thomas
(2007) 146 Cal.App.4th 1278, 1289-1290.)
Based on our review of the evidence, we conclude it is not reasonably probable
Tschida would have obtained a more favorable verdict had the trial court instructed that
its instruction on voluntary intoxication also applied to the jury's consideration of the
lying in wait allegations. Although there was some evidence on which the jury could
have inferred Tschida was somewhat inebriated (e.g., he had five or six alcoholic drinks),
the evidence of his actions before, during, and after his shooting of Krajnak provided
strong, and even overwhelming, evidence that he was not so intoxicated that he did not
lie in wait before shooting her. Assuming he realized he was too intoxicated to drive
5 To the extent Tschida asserts the judgment must be reversed unless the People
show the error is harmless beyond a reasonable doubt under Chapman v. California
(1967) 386 U.S. 18, 24, he does not cite any apposite case holding that standard applies,
and does not otherwise persuade us that standard for prejudice for federal constitutional
error should apply. Furthermore, Tschida does not persuade us that the trial court's
purported instructional error resulted in a violation of his federal constitutional right to
due process, including a meaningful opportunity to present a complete defense.
(California v. Trombetta (1984) 467 U.S. 479, 485 [14th Amend. requires that criminal
defendants be given a meaningful opportunity to present a complete defense].)
15
home after leaving the bar that night, Tschida successfully drove his truck to the parking
lot near Krajnak's apartment and waited in the dark until she left Dirk's. Tschida's
memory of the incident, as shown by his testimony at trial, was quite specific. He
testified he removed his hands from his sweatshirt's pockets, causing his handgun to be
dislodged from his waistband and drop to the ground. He recalled Krajnak's statements
to him that made him "snap" when he picked up his gun and shot her in the head.
Importantly, after getting into his truck to leave, Tschida had the presence of mind to
remember he had handled Krajnak's electronic tablet that night and returned to her
critically injured body. He wiped her tablet clean of fingerprints, including his own, that
could inculpate him in the shooting. He then drove home, packed all of his valuable
property, including his dog and guns, into his truck, and starting driving north. He
successfully drove virtually nonstop for about 18 hours and arrived at his family's home
in Oregon over 1,000 miles away. He also had the presence of mind to disable his cell
phone to prevent police from tracking him.
Based on that evidence, we conclude it is not reasonably probable the jury would
have found Tschida was so intoxicated that, had it been instructed it could consider
voluntary intoxication on the issue of lying in wait, it would have found he did not
conceal his purpose from Krajnak, did not wait and watch for an opportunity to act,
and/or did not, from a position of advantage, intend to and did make a surprise attack on
her. On the contrary, the evidence of Tschida's actions was overwhelming that he was
not so intoxicated that he did not lie in wait for Krajnak. Even had the court instructed
16
that voluntary intoxication could be considered in determining the lying in wait
allegations, it is reasonably probable he would not have obtained a better result.
Furthermore, because we conclude that purported error was harmless, it
necessarily could not have affected Tschida's substantial rights under section 1259.6
Therefore, contrary to his assertion, he cannot raise that issue on appeal despite his failure
to object below to CALCRIM No. 625 or request its modification. (People v. Franco
(2009) 180 Cal.App.4th 713, 720; People v. Ramos (2008) 163 Cal.App.4th 1082, 1087.)
E
Tschida asserts that if he forfeited or waived the trial court's purported error by
instructing with CALCRIM No. 625 on voluntary intoxication without modifying that
instruction to apply to the lying in wait allegations, he was denied his constitutional right
to effective assistance of counsel. He argues his counsel performed deficiently by not
objecting to the court's instruction with CALCRIM No. 625 and not requesting
modification or clarification of that instruction so that it would apply to the lying in wait
allegations, and his counsel's deficient performance was prejudicial.
A criminal defendant is constitutionally entitled to effective assistance of counsel.
(U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; Strickland v. Washington (1984) 466
U.S. 668, 684-685 (Strickland); People v. Pope (1979) 23 Cal.3d 412, 422 (Pope).) To
show denial of the right to counsel, a defendant must show: (1) his or her counsel's
6 Section 1259 provides: "The appellate court may also review any instructions
given, refused or modified, even though no objection was made thereto in the lower
court, if the substantial rights of the defendant were affected thereby."
17
performance was below an objective standard of reasonableness under prevailing
professional norms; and (2) the deficient performance prejudiced the defendant.
(Strickland, at pp. 687, 691-692; People v. Ledesma (1987) 43 Cal.3d 171, 216-217
(Ledesma); Pope, at p. 425.) To show prejudice, a defendant must show there is a
reasonable probability that he or she would have received a more favorable result had his
or her counsel's performance not been deficient. (Strickland, at pp. 693-694; Ledesma, at
pp. 217-218.) "When a defendant challenges a conviction, the question is whether there
is a reasonable probability that, absent the [trial counsel's] errors, the factfinder would
have had a reasonable doubt respecting guilt." (Strickland, at p. 695.) "A reasonable
probability is a probability sufficient to undermine confidence in the outcome." (People
v. Williams (1997) 16 Cal.4th 153, 215.) It is the defendant's burden on appeal to show
that he or she was denied effective assistance of counsel and is entitled to relief.
(Ledesma, at p. 218.)
"In evaluating a defendant's claim of deficient performance by counsel, there is a
'strong presumption that counsel's conduct falls within the wide range of reasonable
professional assistance' [citations], and we accord great deference to counsel's tactical
decisions. [Citation.] . . . Accordingly, a reviewing court will reverse a conviction on the
ground of inadequate counsel 'only if the record on appeal affirmatively discloses that
counsel had no rational tactical purpose for his act or omission.' " (People v. Frye (1998)
18 Cal.4th 894, 979-980.)
However, a court need not address the issue of whether a defendant's counsel
performed deficiently before it addresses the issue of whether the defendant was
18
prejudiced by that purported deficient performance. "If it is easier to dispose of an
ineffectiveness claim on the ground of a lack of sufficient prejudice, which we expect
will often be so, that course should be followed." (Strickland, supra, 466 U.S. at p. 697;
see In re Alvernaz (1992) 2 Cal.4th 924, 945.)
Assuming arguendo Tschida's counsel performed deficiently as Tschida asserts,
we nevertheless conclude he has not carried his burden on appeal to show that deficient
performance prejudiced his case. (Strickland, supra, 466 U.S. at pp. 687, 691-692, 697;
Ledesma, supra, 43 Cal.3d at pp. 216-217; Pope, supra, 23 Cal.3d at p. 425.) Based on
our review of the evidence as discussed in section I(D) above, which discussion we
incorporate herein, we conclude it is not reasonably probable Tschida would have
obtained a more favorable verdict had his counsel not performed deficiently as Tschida
asserts by not objecting to the trial court's instruction with CALCRIM No. 625 and/or not
requesting modification of that instruction to apply to the lying in wait allegations.
Alternatively stated, our confidence in the outcome of Tschida's trial is not undermined
by the purported deficient performance of his counsel. Because Tschida was not
prejudiced by his counsel's purported deficient performance, he was not denied his
constitutional right to effective assistance of counsel. (Strickland, supra, 466 U.S. at
pp. 687, 691-692, 697; Ledesma, supra, 43 Cal.3d at pp. 216-217; Pope, supra, 23 Cal.3d
at p. 425.)
19
II
Admission of Bad Character Evidence
Tschida contends the trial court erred by admitting evidence of his bad character in
violation of Evidence Code section 1101, subdivision (a). He argues the court wrongly
admitted evidence that (1) he possessed firearms and ammunition other than that used to
kill Krajnak, did not have a concealed weapon permit, and used a handgun that did not
have an external safety; (2) he received a less than honorable discharge from the Navy;
and (3) he used marijuana. However, he concedes his counsel objected only to admission
of evidence of his marijuana use.
A
"Ordinarily a court cannot commit error in the admission of evidence unless it is
called upon to rule on an objection by a party." (People v. Viray (2005) 134 Cal.App.4th
1186, 1208.) "As a general rule a party objecting to evidence must make a timely and
specific objection in the trial court." (People v. Davis (2008) 168 Cal.App.4th 617, 627.)
This principle of law is codified in Evidence Code section 353, which states: "A verdict
or finding shall not be set aside, nor shall the judgment or decision based thereon be
reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears
of record an objection to or a motion to exclude or to strike the evidence that was timely
made and so stated as to make clear the specific ground of the objection or motion; and
[¶] (b) The court which passes upon the effect of the error or errors is of the opinion that
the admitted evidence should have been excluded on the ground stated and that the error
or errors complained of resulted in a miscarriage of justice."
20
"In the absence of a timely and specific objection on the ground sought to be urged
on appeal, the trial court's rulings on admissibility of evidence will not be reviewed [on
appeal]." (People v. Clark (1992) 3 Cal.4th 41, 125-126.) Accordingly, "the failure to
raise a timely objection forfeits the claim for appeal [citations] . . . ." (People v. Booker
(2011) 51 Cal.4th 141, 170.) The failure to object on grounds of Evidence Code section
1101, subdivision (a) (i.e., bad character evidence) or Evidence Code section 352 (e.g.,
unduly prejudicial evidence) forfeits those claims on appeal. (People v. Medina (1995)
11 Cal.4th 694, 729 [Evid. Code, § 1101, subd. (a) grounds]; People v. Gurule (2002) 28
Cal.4th 557, 626 [Evid. Code, § 352 grounds].)
Because Tschida, as he concedes, did not timely object to admission of evidence
regarding his possession of firearms and ammunition other than that used to kill Krajnak,
lack of a concealed weapons permit, use of a handgun that did not have an external
safety, and less than honorable discharge from the Navy, we conclude he forfeited or
waived any error by the trial court in admitting that evidence, whether on Evidence Code
section 1101, subdivision (a), grounds or other grounds, and cannot now raise it on
appeal. (People v. Clark, supra, 3 Cal.4th at pp. 125-126; People v. Booker, supra, 51
Cal.4th at p. 170; People v. Medina, supra, 11 Cal.4th at p. 729.)
B
By objecting to admission of evidence of his marijuana use, Tschida preserved for
appeal his claim of erroneous admission of that evidence, but we nevertheless conclude
the trial court did not abuse its discretion to the extent it admitted that evidence. On
cross-examination, the prosecutor asked Tschida whether it was correct he received a less
21
than honorable discharge from the Navy "because of your marijuana use while you were
employed by the U.S. Navy as a helicopter mechanic." Tschida's counsel objected and
the court instructed the prosecutor to "move on to a different topic." Tschida later
confirmed that on January 2 or 3, 2013, a Navy form showed his discharge was less than
honorable. The prosecutor asked him whether that was "for drug use." Tschida's counsel
objected and the court sustained his objection, instructing him to move to a new topic.
The prosecutor later asked Tschida whether he continued his marijuana use after he left
the Navy and worked for a private company repairing Navy helicopters. Tschida
answered: "I used occasionally." The prosecutor then asked him: "Not only did you use,
but you texted about your use, is that correct?" Tschida's counsel objected and the court
sustained his objection. The prosecutor asked Tschida: "You had a bong at your house?"
His counsel objected and the court implicitly sustained that objection, instructing the
prosecutor he should ask "no further questions regarding marijuana use."
Contrary to Tschida's assertion, we conclude the trial court properly admitted
evidence on the nature of Tschida's discharge from the Navy. Because Tschida testified
on direct examination regarding his eight years of service in the Navy, including time
served in Iraq, the prosecutor's questions on cross-examination were relevant to discredit
Tschida's apparent portrayal of himself as an upstanding citizen who served his country
in the Navy. (People v. Mayfield (1997) 14 Cal.4th 668, 755 [permissible scope of
prosecutor's cross-examination is wide].) Therefore, to the extent the trial court sustained
Tschida's objections to those questions but did not expressly strike his answers, the court
properly admitted that evidence as relevant to impeach his credibility. For the same
22
reasons, the court also did not err when it sustained Tschida's objections to the
prosecutor's questions about marijuana use after Tschida was discharged from the Navy.
C
In any event, assuming arguendo the trial court erred by admitting evidence of
Tschida's marijuana use during and after his service in the Navy, we conclude those
errors were harmless under the Watson standard of prejudice. " '[A]pplication of the
ordinary rules of evidence generally does not impermissibly infringe on a capital
defendant's constitutional rights.' " (People v. Prince (2007) 40 Cal.4th 1179, 1229.)
Accordingly, when a trial court errs in its application of rules of evidence and
erroneously admits evidence, we apply the Watson standard of prejudice in determining
whether the judgment should be reversed. (People v. Mendoza (2011) 52 Cal.4th 1056,
1093.) Under that standard, we determine whether it is reasonably probable a result more
favorable to the defendant would have occurred in the absence of the error. (Watson,
supra, 46 Cal.2d at p. 836.)
Based on our review of the evidence, we conclude it is not reasonably probable
Tschida would have obtained a more favorable verdict had the trial court excluded
evidence of his marijuana use. The primary issues at trial were whether Tschida intended
to kill Krajnak and whether he did so with deliberation and premeditation and/or by lying
in wait. The evidence supports an inference that when Tschida left Dirk's the night of the
incident he was angry at Krajnak for statements she made to him. The evidence also
supports an inference that either before or shortly after he left Dirk's he formed the plan
to retaliate against her. Tschida, with a loaded handgun in his waistband, drove his truck
23
to the parking lot near Krajnak's apartment and waited there in the dark until she left
Dirk's. When Krajnak left the bar, he approached her, placed his handgun within inches
of her head, and fired the fatal shot. His actions before and during the shooting were
strong evidence of his intent to kill Krajnak with deliberation and premeditation and/or
by lying in wait. Furthermore, there was strong evidence of his consciousness of guilt.
After getting into his truck to leave, Tschida had the presence of mind to remember he
had handled Krajnak's electronic tablet that night and return to Krajnak's critically injured
body. He destroyed incriminating evidence by wiping her tablet clean of fingerprints that
could inculpate him in the shooting. He then fled and drove home, packed all of his
valuable property, including his dog and guns, into his truck and started driving north.
He drove virtually nonstop for about 18 hours and arrived at his family's home in Oregon
over 1,000 miles away. He also disabled his cell phone to prevent police from tracking
him. The following day, he disposed of the handgun he used to shoot Krajnak, tossing it
into the Willamette River.
Based on that evidence, we conclude it is not reasonably probable the jury would
have found Tschida not guilty of first degree murder or not found true the related
allegations (i.e., lying in wait special circumstance and personal discharge of firearm
causing death allegations) had the trial court not admitted evidence of Tschida's
marijuana use. That evidence was not so inflammatory or otherwise prejudicial that it
could have caused the jury to convict him of first degree murder, or find the allegations
true, based on the marijuana use evidence rather than the overwhelming evidence of his
guilt of that offense and the truth of the related allegations. Any error by the trial court in
24
admitting the evidence of Tschida's marijuana use did not cause a miscarriage of justice
and was harmless error. (Watson, supra, 46 Cal.2d at p. 836; People v. Mendoza, supra,
52 Cal.4th at p. 1093.)
D
Tschida asserts he was denied his constitutional right to effective assistance of
counsel when his counsel did not object to admission of evidence that he possessed
firearms and ammunition other than that used to kill Krajnak, did not have a concealed
weapons permit, used a handgun that did not have an external safety, and received a less
than honorable discharge from the Navy. He also asserts his counsel performed
deficiently by not requesting that evidence of his marijuana use be stricken after the trial
court sustained his objections to the prosecutor's questions on that issue.
As discussed in part I(E) above, to show denial of the right to counsel, a defendant
must show: (1) his or her counsel's performance was below an objective standard of
reasonableness under prevailing professional norms; and (2) the deficient performance
prejudiced the defendant. (Strickland, supra, 466 U.S. at pp. 687, 691-692; Ledesma,
supra, 43 Cal.3d at pp. 216-217; Pope, supra, 23 Cal.3d at p. 425.) To show prejudice, a
defendant must show there is a reasonable probability that he or she would have received
a more favorable result had his or her counsel's performance not been deficient.
(Strickland, at pp. 693-694; Ledesma, at pp. 217-218.) "When a defendant challenges a
conviction, the question is whether there is a reasonable probability that, absent the [trial
counsel's] errors, the factfinder would have had a reasonable doubt respecting guilt."
(Strickland, at p. 695.) "A reasonable probability is a probability sufficient to undermine
25
confidence in the outcome." (People v. Williams, supra, 16 Cal.4th at p. 215.) It is the
defendant's burden on appeal to show that he or she was denied effective assistance of
counsel and is entitled to relief. (Ledesma, at p. 218.)
Tschida has not carried his burden on appeal to show it is reasonably probable he
would have obtained a more favorable result had his counsel objected to the prosecutor's
questions on the issues described above and/or requested that his answers to those
questions be stricken from the record. First, he does not show the trial court would have
sustained his counsel's objections and excluded that evidence had those objections been
made. Rather, it appears most, if not all, of that evidence was relevant to Tschida's
commission of murder and/or to impeach the credibility of his trial testimony. The
evidence of Tschida's possession of firearms and ammunition other than that used to kill
Krajnak was relevant to the issues of his intent to kill Krajnak, his deliberation and
premeditation in doing so, and his lying in wait for her, and therefore was not
inadmissible under Evidence Code section 1101, subdivision (a), as bad character
evidence. (Cf. People v. Smith (2003) 30 Cal.4th 581, 613-614 [evidence of defendant's
possession of gun and ammunition other than that used to commit the crime was
admissible to show defendant's state of mind]; People v. Jablonski (2006) 37 Cal.4th 774,
821-822; People v. Young (2005) 34 Cal.4th 1149, 1183.) Likewise, evidence of his
possession of a handgun without an external safety and his lack of a concealed weapon
permit was also relevant to the issues of his intent to kill, deliberation and premeditation,
and lying in wait. For example, a person with a loaded gun without an external safety
presumably can more easily and quickly fire the gun and take and shoot a victim (e.g.,
26
Krajnak) by surprise after lying in wait. Similarly, it can reasonably be inferred that a
person who carries a handgun in his or her waistband without a concealed weapon permit
does that so he or she can more easily take and shoot a victim (e.g., Krajnak) by surprise
after lying in wait and not as merely a general practice of carrying a handgun. The
evidence of Tschida's less than honorable discharge from the Navy was relevant to
impeach his credibility and therefore also was not inadmissible under Evidence Code
section 1101, subdivision (a), as bad character evidence.
Second, even if some or all of the above evidence would have been excluded had
his counsel made timely objections, we nevertheless conclude Tschida has not carried his
burden on appeal to show it is reasonably probable he would have obtained a more
favorable verdict had that evidence been excluded. As discussed above, the evidence
showing Tschida's guilt of first degree murder and the truth of the related allegations was
overwhelming. We refer to our discussion of the evidence set forth in part II(C) above,
which we incorporate herein, rather than restate the evidence. Tschida's actions before,
during, and after the shooting were strong evidence of this intent to kill Krajnak with
deliberation and premeditation and/or by lying in wait. Based on that strong evidence,
we conclude it is not reasonably probable the jury would have found Tschida not guilty
of first degree murder or not found true the related allegations (i.e., lying in wait special
circumstance and personal discharge of firearm causing death allegations) had his
counsel objected to, and the trial court excluded, the purported "bad character" evidence.
That evidence was not so inflammatory or otherwise prejudicial that it could have caused
the jury to convict him of first degree murder, or find the allegations true, based on
27
Tschida's bad character rather than the overwhelming evidence of his guilt of that offense
and the truth of the related allegations. Any deficient performance by Tschida's counsel
in not objecting to the purported evidence of Tschida's bad character was not prejudicial.
Because Tschida has not shown his counsel's purported deficient performance was
prejudicial, we need not address the issue of whether his counsel performed deficiently;
we conclude he was not denied his constitutional right to effective assistance of counsel.
(Strickland, supra, 466 U.S. at pp. 687, 691-692; Ledesma, supra, 43 Cal.3d at pp. 216-
217; Pope, supra, 23 Cal.3d at p. 425.)
III
Prosecutorial Error
Tschida contends the prosecutor committed prejudicial error or misconduct in
cross-examining him and misstating the law in closing argument.
A
In cross-examining Tschida, the prosecutor asked him whether he received a less
than honorable discharge from the Navy as a helicopter mechanic because of his
marijuana use and whether he continued to use marijuana after his discharge while he
was a civilian helicopter mechanic. Although the court sustained his counsel's objections
to questions about marijuana use, the prosecutor later asked Tschida about the bong
found in his house.
28
Also, during cross-examination, the prosecutor asked Tschida various questions
that he now contends were argumentative, abusive, or repetitive.7 For example, after
asking Tschida three times whether he pulled the gun's trigger, the prosecutor asked him
that question a fourth time. The trial court intervened, stating "he answered the
question." The prosecutor also asked him: "She was [lying] on the street gurgling when
you wiped the prints off, correct?" Tschida answered: "I don't remember whether she
was breathing or not. I was in a panic. I do remember her [lying] there and a lot of
blood." The prosecutor then asked: "And that's when you dialed 9-1-1?" Tschida
answered: "No, sir. I presumed her dead. . . ." The prosecutor stated: "She lived for 10
more minutes, Mr. Tschida." The trial court sustained the objection of Tschida's counsel
on grounds of an argumentative question.
The prosecutor also asked Tschida questions he now asserts were not founded in
the evidence, such as whether he had known Krajnak for 36 days, and later arguing in
closing he bought guns 37 days before he killed her and had bought a gun for execution.
The prosecutor also asked Tschida whether he could drive to his house from the location
of Dirk's in three minutes. Tschida answered: "I don't know that." The prosecutor asked
him: "Isn't it true, sir, you did not have a firearm upon your person, that you actually
drove home to get the gun out of your house?" Tschida answered: "No, sir." Tschida
7 For purposes of our opinion, we need not, and do not, discuss the details of each of
the many instances of purported prosecutorial error cited by Tschida because there is a
common theme among those alleged instances.
29
now asserts the prosecutor had no evidentiary basis on which to ask the question
regarding the time it took to drive from Dirk's to his house.
In closing, the prosecutor referred to instructions he stated were given by the trial
court, including CALCRIM No. 361 regarding the failure to explain or deny adverse
evidence, and he read the first sentence of that instruction. However, the court had not
given that instruction and the prosecutor did not read the entire CALCRIM No. 361
instruction.8 In so doing, Tschida asserts the prosecutor misstated the law.
B
"A prosecutor's conduct violates the Fourteenth Amendment to the federal
Constitution when it infects the trial with such unfairness as to make the conviction a
denial of due process. Conduct by a prosecutor that does not render a criminal trial
fundamentally unfair is prosecutorial misconduct under state law only if it involves the
use of deceptive or reprehensible methods to attempt to persuade either the trial court or
the jury." (People v. Morales (2001) 25 Cal.4th 34, 44.) To preserve a claim of
prosecutorial misconduct or error, a defendant must timely object and request a curative
admonition unless an admonition would not have cured the harm caused by the
8 CALCRIM No. 361 states: "If the defendant failed in (his/her) testimony to
explain or deny evidence against (him/her), and if (he/she) could reasonably be expected
to have done so based on what (he/she) knew, you may consider (his/her) failure to
explain or deny in evaluating that evidence. Any such failure is not enough by itself to
prove guilt. The People must still prove the defendant guilty beyond a reasonable doubt.
[¶] If the defendant failed to explain or deny, it is up to you to decide the meaning and
importance of that failure."
30
misconduct or error. (People v. Hinton (2006) 37 Cal.4th 839, 863; People v. Earp
(1999) 20 Cal.4th 826, 858.)
Absent a fundamentally unfair trial under the federal Constitution, prosecutorial
misconduct or error does not require reversal of the judgment unless it was prejudicial
under state law, i.e., it is reasonably probable the defendant would have obtained a more
favorable verdict absent the misconduct or error. (People v. Bell (1989) 49 Cal.3d 502,
534, 542 (Bell); People v. Castillo (2008) 168 Cal.App.4th 364, 386 (Castillo); People v.
Crew (2003) 31 Cal.4th 822, 839.) If the prosecutorial misconduct or error renders the
defendant's trial fundamentally unfair under the federal Constitution, reversal of the
judgment is required unless the misconduct or error is harmless beyond a reasonable
doubt. (Castillo, at pp. 386-387, fn. 9; People v. Bordelon (2008) 162 Cal.App.4th 1311,
1323-1324 (Bordelon).)
A prosecutor's cross-examination of a defendant may be vigorous and the
permissible scope of that questioning is wide. (People v. Mayfield, supra, 14 Cal.4th at
p. 755; People v. Cooper (1991) 53 Cal.3d 771, 822.) However, "[i]t is misconduct [i.e.,
error] for a prosecutor to ask a witness a question that implies a fact harmful to a
defendant unless the prosecutor has reasonable grounds to anticipate an answer
confirming the implied fact or is prepared to prove the fact by other means. [Citation.]
But if the defense does not object, and the prosecutor is not asked to justify the question,
a reviewing court is rarely able to determine whether this form of misconduct [i.e., error]
has occurred. [Citation.] Therefore, a claim of misconduct [i.e., error] on this basis is
31
waived absent a timely and specific objection during the trial." (People v. Price (1991) 1
Cal.4th 324, 481.)
Although a prosecutor is given wide latitude in vigorously arguing the People's
case, the prosecutor may not misstate the law. (Bell, supra, 49 Cal.3d at p. 538; People v.
Bandhauer (1967) 66 Cal.2d 524, 529.) The prosecutor "has the right to fully state his
views as to what the evidence shows and to urge whatever conclusions he deems proper.
Opposing counsel may not complain on appeal if the reasoning is faulty or the
conclusions are illogical because these are matters for the jury to determine." (People v.
Thomas (1992) 2 Cal.4th 489, 526.) "It has long been settled that appeals to the
sympathy or passions of the jury are inappropriate at the guilt phase of a criminal trial.
[Citations.] We recognize that the prosecutor 'may vigorously argue his case and is not
limited to "Chesterfieldian politeness" ' [citations], but the bounds of vigorous argument
do not permit appeals to sympathy or passion such as that presented here." (People v.
Fields (1983) 35 Cal.3d 329, 362-363, fn. omitted.)
"[W]hen the claim focuses upon comments made by the prosecutor before the
jury, the question is whether there is a reasonable likelihood that the jury construed or
applied any of the complained-of remarks in an objectionable fashion." (People v.
Samayoa (1997) 15 Cal.4th 795, 841.) Even if an error could not be cured by an
admonition to the jury, reversal of a defendant's conviction is warranted only if on the
whole record the error resulted in a miscarriage of justice. (Bell, supra, 49 Cal.3d at
p. 535.)
32
C
Although Tschida contends the prosecutor erred by improperly cross-examining
him and asking him questions that were argumentative, abusive, repetitive, and/or lacking
an evidentiary basis, we conclude he forfeited or waived those errors by not timely
objecting below to those purported errors on grounds of prosecutorial error and
requesting curative admonitions. (People v. Hinton, supra, 37 Cal.4th at p. 863; People
v. Earp, supra, 20 Cal.4th at p. 858.) Because the record shows Tschida did not object to
the challenged cross-examination questions and closing arguments by the prosecutor, he
cannot raise on appeal the issue of prosecutorial error. (Hinton, at p. 863; Earp, at
p. 858.)
D
However, to the extent Tschida did not forfeit or waive any prosecutorial error
and/or argues the jury instructions were incorrect and arguably affected his substantial
rights as a result of the prosecutor's challenged arguments (§ 1259; People v. Felix (2008)
160 Cal.App.4th 849, 857 [defendant need not object to preserve claim of instructional
error if it affects his or her substantial rights]), we nevertheless conclude those
prosecutorial and instructional errors did not prejudice him and do not require reversal of
the judgment. Alternatively stated, assuming arguendo the prosecutor improperly
questioned Tschida on cross-examination and/or misstated the law by reading a portion of
CALCRIM No. 361, those errors were harmless under either the state or federal standard
for prejudicial error.
33
First, we conclude beyond a reasonable doubt the prosecutor's questions in cross-
examining Tschida could not have affected the jury's findings on either his guilt or the
truth of the related allegations. As discussed above, the evidence in support of the jury's
verdict finding Tschida guilty of first degree murder and finding true the lying in wait
allegation was overwhelming. The evidence of Tschida's actions before, during, and after
the shooting provided strong evidence of his intent to kill Krajnak and deliberation and
premeditation and/or lying in wait. Because the purported prosecutorial errors on cross-
examination were harmless beyond a reasonable doubt, Tschida was not denied a
fundamentally fair trial under the federal Constitution that would require reversal of the
judgment. (Castillo, supra, 168 Cal.App.4th at pp. 386-387, fn. 9; Bordelon, supra, 162
Cal.App.4th at pp. 1323-1324.)
Second, it is not reasonably likely the jury applied CALCRIM No. 361 in its
deliberations despite the prosecutor's erroneous reference to it. (People v. Rundle (2008)
43 Cal.4th 76, 149; People v. Ayala (2000) 24 Cal.4th 243, 289; Estelle v. McGuire
(1991) 502 U.S. 62, 72-73 & fn. 4.) In determining that reasonable likelihood, we review
the instructions as a whole and the entire record, including arguments of counsel.
(People v. Young, supra, 34 Cal.4th at p. 1202; People v. Smithey (1999) 20 Cal.4th 936,
988.) In this case, the trial court instructed the jury with CALCRIM No. 200 that it must
follow the law as the court explains it and to the extent "the attorneys' comments on the
law conflict with my instructions, you must follow my instructions." Therefore, to the
extent the prosecutor's argument misstated the law as set forth in the court's instructions
by referring to a portion of CALCRIM No. 361 (which instruction was not given by the
34
court), we presume the jury followed the court's instructions, disregarded the prosecutor's
reference to CALCRIM No. 361, and did not consider CALCRIM No. 361 in its
deliberations.
Third, even had the jury considered CALCRIM No. 361 to be part of the court's
instructions on the law as the prosecutor argued, our review of the record shows beyond a
reasonable doubt the prosecutor's misstatement of the law did not, contrary to Tschida's
assertion, contribute to the jury's verdict. The portion of CALCRIM No. 361 cited by the
prosecutor stated: "If the defendant failed in his testimony to explain evidence used
against him, when he reasonably could have been expected to do so, you may consider
his failure to explain or deny in evaluating that evidence." (Italics added.) Therefore,
that instruction would not apply at all if, as Tschida asserts, there was no evidence that he
failed to explain evidence against him when he could reasonably be expected to do so
based on what he knew. Alternatively, had there been such evidence, the jury could then
have applied that instruction and considered Tschida's failure to explain it in considering
that evidence. Contrary to Tschida's assertion, the prosecutor's omission of the remaining
portion of CALCRIM No. 361 did not make that instruction misleading or otherwise
prejudicial.9 Therefore, regardless of whether or not there was such evidence, we
conclude the prosecutor's misstatement of the law given by the court was harmless
9 The omitted portion of CALCRIM No. 361 states: "Any such failure is not enough
by itself to prove guilt. The People must still prove the defendant guilty beyond a
reasonable doubt. [¶] If the defendant failed to explain or deny, it is up to you to decide
the meaning and importance of that failure."
35
beyond a reasonable doubt and did not deny Tschida a fundamentally fair trial under the
federal Constitution that would require reversal of the judgment. (Castillo, supra, 168
Cal.App.4th at pp. 386-387, fn. 9; Bordelon, supra, 162 Cal.App.4th at pp. 1323-
1324.)10
E
Tschida alternatively argues that if he forfeited or waived the prosecutor's errors,
he was denied his constitutional right to effective assistance of counsel. However, even
had his counsel timely objected to the purported prosecutorial errors discussed above and
requested curative admonitions, we nevertheless conclude Tschida has not carried his
burden on appeal to show it is reasonably probable he would have obtained a more
favorable verdict had his counsel's objections to those purported errors been sustained
and curative admonitions been given by the court. As discussed above, the evidence
showing Tschida's guilt of first degree murder and the truth of the related allegations was
overwhelming. We rely on our discussion of the evidence set forth in part II(C) above,
which we incorporate herein, rather than restate the evidence. Tschida's actions before,
during, and after the shooting were strong evidence of this intent to kill Krajnak with
deliberation and premeditation and/or by lying in wait. Based on that strong evidence,
we conclude it is not reasonably probable the jury would have found Tschida not guilty
10 To the extent the assumed errors involved only state errors, we conclude, based on
the same reasoning discussed above, those errors were harmless because it is not
reasonably probable Tschida would have obtained a more favorable verdict had those
errors not occurred. (Watson, supra, 46 Cal.2d at p. 836.)
36
of first degree murder or not found true the related allegations (i.e., lying in wait special
circumstance and personal discharge of firearm causing death allegations) had his
counsel objected to the prosecutor's purported improper cross-examination and
misstatement of the law. Those errors were not so inflammatory or otherwise prejudicial
that they could have caused the jury to convict Tschida of first degree murder, or find the
allegations true, based on those errors rather than the overwhelming evidence of his guilt
of that offense and the truth of the related allegations. Accordingly, any deficient
performance by Tschida's counsel in not objecting to the purported prosecutorial errors
was not prejudicial. Because Tschida has not shown his counsel's purported deficient
performance was prejudicial, we need not address the issue of whether his counsel
performed deficiently; we conclude he was not denied his constitutional right to effective
assistance of counsel. (Strickland, supra, 466 U.S. at pp. 687, 691-692; Ledesma, supra,
43 Cal.3d at pp. 216-217; Pope, supra, 23 Cal.3d at p. 425.)
IV
Marsden Hearing
Tschida contends the trial court erred by not holding a Marsden hearing when,
shortly before the jury returned its verdict, he complained about his counsel's pretrial
preparation.
A
After the jury informed the trial court it had reached a verdict but before the jury
entered the courtroom, Tschida stated to the court: "I have an objection about my trial
because of ineffective assistance of counsel." He explained:
37
"I believe that my attorney was not ready for trial due to the fact that
there was . . . a plea bargain on the table until Saturday before the
trial. Jury selection started on the third. I was told Saturday that that
was denied.
"I believe my attorney was not ready for this trial. He did not bring
any witnesses. He did not investigate anything. He didn't bring any
video witnesses to show that I never went over to pick up a weapon.
Nor did he research Mapquest. It takes five to eight minutes, not
three minutes, to get from the bar to my house. [¶] . . . [¶]
"There are things that were impossible that the D.A. used against
me. I believe I was not represented fairly."
The court replied: "All right. That's part of the record." The jury then entered the
courtroom and returned its verdict.
B
Marsden held the defendant was denied his constitutional right to effective
assistance of counsel when the trial court denied his midtrial motion to substitute new
counsel without giving him an opportunity to explain his reasons for his request. (People
v. Marsden, supra, 2 Cal.3d at pp. 120, 124.) When a Marsden motion for new counsel is
made, "the inquiry is forward-looking in the sense that counsel would be substituted in
order to provide effective assistance in the future." (People v. Smith (1993) 6 Cal.4th
684, 695.) When a Marsden motion is made, substitute counsel should be appointed only
when the trial court finds, "in the exercise of its discretion, the court finds that the
defendant has shown that a failure to replace the appointed attorney would substantially
impair the right to assistance of counsel [citation], or, stated slightly differently, if the
record shows that the first appointed attorney is not providing adequate representation or
38
that the defendant and the attorney have become embroiled in such an irreconcilable
conflict that ineffective representation is likely to result [citation]." (Id. at p. 696.)
In People v. Sanchez (2011) 53 Cal.4th 80 (Sanchez), the court addressed the
circumstances under which a trial court is obligated to conduct a Marsden hearing in the
context of a criminal defendant's desire to withdraw a guilty or no contest plea. (Sanchez,
at pp. 83-84.) Sanchez held: "[A] trial court must conduct such a Marsden hearing only
when there is at least some clear indication by the defendant, either personally or through
counsel, that the defendant wants a substitute attorney." (Id. at p. 84, italics added.)
Therefore, a court is required to conduct a Marsden hearing only if a defendant makes
" 'some clear indication' " that he or she wants a substitute attorney. (Sanchez, at p. 90.)
C
Based on our review of the record, we conclude Tschida did not make any " 'clear
indication' " that he wanted a substitute attorney to represent him. (Sanchez, supra, 53
Cal.4th at pp. 90, 93.) As shown by Tschida's statements to the trial court quoted above,
he simply expressed his belief that he did not receive effective assistance of counsel
because his attorney had not adequately prepared for trial. In so doing, Tschida focused
solely on what had happened in the past and before the trial that had recently concluded.
When Tschida expressed his dissatisfaction with his counsel's pretrial preparation, the
jury was already on its way to the courtroom to return its verdict. There was nothing in
Tschida's statements to the court that indicated he believed his counsel was so ineffective
that he could not adequately represent him during the taking of the jury's verdict. Absent
" 'some clear indication' " by Tschida that he wanted substitute counsel at that stage of the
39
proceedings, the court did not have any obligation to conduct a Marsden hearing.
(Sanchez, at pp. 90, 93.) Contrary to Tschida's assertion, the court properly did not hold a
Marsden hearing after he informed the court of his dissatisfaction regarding his counsel's
pretrial preparations. (Cf. People v. Richardson (2009) 171 Cal.App.4th 479, 485 [no
Marsden hearing required where defendant submitted a postverdict letter requesting a
new trial based on ineffective assistance of counsel during trial].)
People v. Reed (2010) 183 Cal.App.4th 1137, cited by Tschida, is inapposite to
this case and does not persuade us to reach a contrary conclusion. Furthermore, Reed
was issued before the California Supreme Court's 2011 decision in Sanchez, which
disapproved the cases on which Reed relied in concluding the defendant was entitled to a
Marsden hearing. (Sanchez, supra, 53 Cal.4th at p. 90, fn. 3.) Sanchez concluded the
decisions in People v. Mejia (2008) 159 Cal.App.4th 1081 and People v. Mendez (2008)
161 Cal.App.4th 1362 "incorrectly implied that a Marsden motion can be triggered with
something less than a clear indication by a defendant, either personally or through current
counsel, that the defendant 'wants a substitute attorney.' " (Sanchez, at p. 90, fn. 3.)
Therefore, it is doubtful Reed's holding survives after Sanchez. In any event, Reed is
factually and legally inapposite to this case. Reed involved a defendant's expressed
desire to file a motion for new trial based on ineffective assistance after the defendant had
made previous unsuccessful Marsden motions for substitute counsel. (Reed, at pp. 1145-
1146.) In those circumstances, Reed concluded the defendant had made a clear indication
he wanted substitute counsel to represent him in pursuing a motion for new trial. (Ibid.)
In this case, Tschida did not make any previous Marsden motions, nor did he, or his
40
counsel, express he wanted substitute counsel to represent him in pursuing a motion for
new trial based on ineffective assistance of counsel. In fact, because the jury had yet to
return its verdict, his trial had yet to be completed and a motion for new trial was
premature. Tschida's preverdict statements presumably did not indicate any desire for a
substitute attorney to represent him in moving for a new trial.
Finally, Tschida asserts that, if he did not clearly indicate a desire for appointment
of substitute counsel, the trial court nevertheless should have a sua sponte duty, after
hearing his complaints about his counsel, to inquire whether he wanted it to determine
whether he qualified for new counsel. However, he does not cite any case persuading us
the trial court had that duty in the circumstances of this case. We conclude the court was
not required to sua sponte inquire whether Tschida wanted it to hold a Marsden hearing
to determine whether he qualified for new counsel.11 (Cf. People v. Gay (1990) 221
Cal.App.3d 1065, 1070.)
V
Cumulative Prejudice
Tschida contends the cumulative prejudicial effect of the trial court's and
prosecutor's errors requires reversal of the judgment. However, based on our review of
the entire record, we conclude there is no prejudicial error, considered individually or
11 Because we conclude the trial court did not err by not holding a Marsden hearing,
we need not, and do not, address Tschida's argument that the purported error was
prejudicial.
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cumulatively, under the federal and state Constitutions. (Cf. San Nicolas, supra, 34
Cal.4th at p. 670; People v. Anderson (2001) 25 Cal.4th 543, 606.)
DISPOSITION
The judgment is affirmed.
McDONALD, Acting P. J.
WE CONCUR:
AARON, J.
IRION, J.
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