People v. Ward CA2/2 ( 2023 )

Filed 7/21/23 P. v. Ward CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B322508
Plaintiff and Respondent, (Tulare County
Super. Ct. No. VCF353970)
v.
PAUL BRIAN WARD,
Defendant and Appellant.
__________________________________
In re PAUL BRIAN WARD B325350
on Habeas Corpus.
(Tulare County
Super. Ct. No. VCF353970)
APPEAL from a judgment of the Superior Court of Tulare
County. Juliet L. Boccone, Judge. Affirmed and remanded with
directions.
ORIGINAL PROCEEDING; petition for a writ of habeas
corpus, Juliet L. Boccone, Judge. Petition denied.
Denise M. Rudasill, under appointment by the Court of
Appeal, for Defendant and Appellant and for Petitioner in the
Habeas Proceeding.
Rob Bonta, Attorney General, Matthew Rodriquez, Acting
Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Senior Assistant Attorney General,
Louis M. Vasquez and Eric L. Christoffersen, Supervising Deputy
Attorneys General, Amanda D. Cary, Jennifer Olesksa, Kari R.
Mueller and Lewis A. Martinez, Deputy Attorneys General, for
Plaintiff and Respondent and for Respondent in the Habeas
Proceeding.
_____________________________________________
Paul Brian Ward appeals the judgment entered following a
jury trial in which he was convicted of the attempted murder
(Pen. Code,1 §§ 664/187, subd. (a); count 1) and assault on Visalia
Police Officer Frank Lopez with force likely to produce great
bodily injury (§ 245, subd. (c); count 2), as well as multiple counts
of resisting an executive officer, assault, and battery.2 The jury
1 Undesignated statutory references are to the Penal Code.
2 The other counts of conviction included: three counts of
resisting an executive officer (§ 69; count 3–Officer Frank Lopez,
count 4–Officer Samantha Valenzuela-Adney, and count 5–
Officer Tim Haener), attempted removal of a weapon (baton) from
a peace officer (§§ 664/148, subd. (b), count 7–Officer Frank
Lopez), assault with force likely to produce great bodily injury
(§ 245, subd. (a)(4)), count 8–appellant’s son), attempted criminal
threats (§§ 664/422, a lesser included offense of criminal threats,
2
found not true the allegation that the attempted murder was
willful, premeditated and deliberate. The jury also acquitted
appellant of criminal threats as charged in count 9, convicting
him instead of the lesser included offense of attempted criminal
threats. The trial court sentenced appellant to 7 years to life plus
a determinate term of 5 years 4 months in state prison.
While this appeal was pending, and upon consideration of
the ineffective assistance of counsel arguments presented in
appellant’s briefs on appeal, we invited appellant to file a petition
for a writ of habeas corpus to permit inquiry into matters outside
the appellate record. On January 3, 2023, appellant filed a
redacted petition for writ of habeas corpus.3 An order to show
cause (OSC) returnable to this court was issued on February 8,
2023. Respondent filed a redacted return to the OSC on April 11,
2023,4 and a traverse in support of the writ petition was filed on
May 18, 2023.
In his appeal, appellant contends his conviction for
attempted murder was not supported by substantial evidence.
Specifically, he maintains that the evidence was too speculative
and insufficient to establish an intent to kill. Appellant further
contends that the trial court prejudicially erred by allowing
appellant to appear before the jury in jail clothes and restraints,
count 9), misdemeanor battery upon emergency personnel (§ 243,
subd. (b), count 10), and two counts of misdemeanor battery
(§ 242, counts 11 & 12).
3 An unredacted petition was filed under seal on January 5,
2023.
4
Respondent filed an unredacted return under seal on
April 12, 2023.
3
and by failing sua sponte to instruct the jury with CALCRIM No.
3425 on the defense of unconsciousness. Finally, appellant
asserts the trial court abused its discretion by admitting
testimony that he possessed a cache of guns, ammunition and
knives, as well as “antigovernment” and “occult” literature.
According to appellant, this evidence was not just irrelevant, but
it also constituted inadmissible propensity evidence under
Evidence Code section 1101, subdivision (b). The evidence was
highly prejudicial and opened the door for further testimony that
appellant met the criteria for an “active shooter,” which the
People emphasized in argument to the jury. Appellant argues
that given the overall weakness of the prosecution case, the trial
court’s errors and improper admission of this highly prejudicial
evidence resulted in a miscarriage of justice requiring reversal.
We reject appellant’s arguments. Having reviewed the
whole record in the light most favorable to the judgment, we
conclude substantial evidence supports appellant’s conviction for
attempted murder. The trial court had no sua sponte duty to give
an instruction on the defense of unconsciousness. Appellant’s
remaining claims are forfeited for lack of objection, and appellant
fails to demonstrate ineffective assistance of counsel.
However, we accept the parties’ agreement that remand for
resentencing is necessary to require the trial court to stay the
sentence on either count 1 or count 2 in accordance with section
654 as amended by Assembly Bill No. 518. On remand, the trial
court may also revisit all of its prior sentencing decisions,
including what term to impose under section 1170,
subdivision (b), as amended by Senate Bill No. 567.
In the petition for a writ of habeas corpus, petitioner
asserts he was deprived of his right to effective assistance of
4
counsel under the Sixth Amendment to the United States
Constitution and article I, section 15 of the California
Constitution by the following acts and omissions of defense
counsel: (1) failing to arrange for petitioner to wear civilian
clothing during trial and allowing petitioner to appear before the
jury without objection in jail clothing; (2) failing to object or
otherwise seek to exclude testimony concerning petitioner’s
possession of a large number of weapons and “antigovernment”
books; (3) failing first to investigate an involuntary intoxication
and/or “mental health” defense by obtaining petitioner’s medical
records from his Welfare and Institutions Code section 5150
hospitalization, and then failing to use those records to present a
“mental health” defense or to support his unconsciousness and
involuntary intoxication defenses.
We reject these claims, discharge the order to show cause,
and deny the petition for a writ of habeas corpus.
FACTUAL BACKGROUND
A. Prosecution
On July 30, 2017, appellant’s long-time friend and martial
arts instructor, Marcy Manuele, visited appellant at his home
where he lived with his mother to take him to church. Appellant
and Manuele had known each other since high school, and
Manuele started training appellant in martial arts when
appellant was in his twenties. By 2017, appellant had a brown
belt in judo, a second degree black belt in Aikido, and training in
weapon retention and weapon takeaways for swords, guns, and
batons. Appellant had also trained in MMA (mixed martial arts)
under another instructor.
When Manuele arrived at appellant’s home on July 30, his
eyes were bloodshot, he appeared groggy, and he was
5
nonresponsive. He told Manuele he had not slept in three days.
Manuele left and returned a couple hours later to check on
appellant and take him to breakfast. While appellant was taking
a shower, Manuele waited for him in the kitchen with Barbara
Bailey, appellant’s mother. Appellant had been in the shower for
over an hour when Manuele heard him screaming. Appellant
had been having “some mental health issues for the past year”
marked by “[r]andom outbursts of screaming,” and it was not
unusual for appellant to start yelling for no apparent reason.
Throughout the year Manuele had witnessed episodes of
appellant suddenly screaming and “talking . . . in tongues,”
chanting to God, and saying “he was . . . being possessed.”
Appellant’s son Terrill and Bailey went into appellant’s
room to check on him. They found appellant standing naked in
the shower facing the wall with his arms crossed, mumbling to
himself. Terrill and Bailey tried to get appellant’s attention by
shaking him, and Bailey tried to put a towel around him. But
appellant “was totally out of it” and did not respond. Suddenly,
appellant began shouting “like a deranged, crazy man” that
“anyone who doesn’t bow down to the God will be killed.” He
began counting down, and then turned around and started
swinging at Terrill. Terrill forced his father back into the
shower, and the two continued fighting. Appellant raised his
arms and tried to strangle Terrill, but his hands were wet and
slippery, and Terrill managed to escape his grip several times.
When Manuele heard more yelling, she went to appellant’s
room. There she saw appellant naked in the shower, screaming
that “everybody has to die” while trying to strangle Terrill with
both hands. Terrill broke free, and he and appellant started
“throwing punches and head butting” each other. Then appellant
6
turned on Bailey and Manuele, shoving his mother onto the bed,
and punching Manuele with a closed fist once in the face and
again on the side of her head.
The fighting moved outside to the backyard, with appellant
“wildly trying to attack” Terrill, Manuele, and Bailey. Manuele
called the police.
Visalia Police Officer Valenzuela-Adney was first to arrive
on the scene. Appellant was naked and being held facedown by
his son and his mother in the backyard. Appellant was yelling
that “he was God.” His arms were out to the side, and although
he did not comply with Officer Valenzuela-Adney’s command to
put his hands behind his back, he offered no resistance when the
officer grabbed his hands and put him in handcuffs. Once
handcuffed, appellant became calm and almost seemed to fall
asleep.
After speaking with the family, Officer Valenzuela-Adney
felt appellant presented a danger to others due to his mental
state and decided to place appellant on a “mental health hold”
pursuant to Welfare and Institutions Code section 5150.5 She
requested an ambulance to transport him to the hospital.
Officers Frank Lopez and Tim Haener and other Visalia
police officers arrived around the same time as the emergency
medical personnel and ambulance. The officers tried to move
appellant to a gurney, but appellant made his body go limp. At
six feet, two inches tall and between 250 and 280 pounds, he was
5 When a person presents a danger to others as a result of a
mental health disorder, Welfare and Institutions Code section
5150 authorizes a peace officer to take the person into custody for
a period of up to 72 hours for assessment, evaluation, and crisis
intervention.
7
bigger than the officers, and they were unable to move him
without his cooperation.
A paramedic asked that the handcuffs be removed to allow
the medical personnel to conduct an assessment and to facilitate
moving appellant to the gurney. But the moment Officer
Valenzuela-Adney removed one of the handcuffs, appellant
“immediately sprung up” and delivered a “very hard” MMA-style
kick to the groin area of one of the ambulance personnel. He
then began attacking the officers. As the officers tried to subdue
appellant, he was swinging the arm with the handcuff still
attached to the wrist. Fearing that appellant might use the open
handcuff as a hook or brass knuckles, Officer Haener began to
use his Taser. He tased appellant multiple times, to little effect.
As soon as Officer Haener stopped tasing him, appellant
charged Officer Lopez, who had drawn his baton. Officer Lopez
struck appellant in the legs with the baton. As Officer Lopez
moved to strike again, appellant grabbed the baton in the middle,
and Officer Lopez took hold of the other end. As the men
struggled over the baton, appellant punched Officer Lopez in the
face at least twice and kicked Officer Lopez’s leg. Appellant then
wheeled around the officer, wrapping his right arm around
Officer Lopez’s neck from behind and applying pressure to his
throat as he put the officer in a carotid restraint, or “chokehold.”
Manuele had trained appellant in chokeholds, which she
explained can cause the person to whom one is applied to pass
out by cutting off the blood supply to the brain. According to
Officer Haener, a chokehold is in the category of deadly force
because of the risk of breaking bones in the neck, which may be
fatal.
8
While appellant had his right arm around Officer Lopez’s
neck, his left hand moved within five inches of the officer’s gun,
and a female voice shouted something to the effect of “ ‘[w]atch
your gun’ ” or “ ‘[h]e’s going for your gun.’ ” Believing lethal force
might be necessary, Officer Haener drew his firearm, aiming for
appellant’s head. As Officer Haener tried to get a clear shot,
Officer Valenzuela-Adney struck appellant on the back of his
neck with her baton. The blow seemed to stun appellant
momentarily and he released Officer Lopez. It then took at least
six officers to finally restrain appellant as he continued to
struggle.
That night, appellant’s son told officers he thought his
father “ ‘[h]ad intent to kill,’ ” and that “[w]hen it comes to other
people, especially not in the family, [he was] positive that
[appellant] would have tried to kill them” in the state he was in.
A search of appellant’s room turned up a cache of firearms,
large capacity magazines, over 6,000 rounds of ammunition, and
more than “30 bladed-type instruments,” like knives, swords, and
machetes. Police also found marijuana and numerous
“antigovernment” books and “religious-occult-type literature.”
Officer Haener testified that he did not read or look at any of the
books carefully, but assumed their content based on the titles.
B. Defense
Bailey testified that in the weeks leading up to the incident
in this case, her son had been “very worried and wearing down”
because he knew he was going to lose his job as a result of
seizures he had been having. Appellant had not slept at all in the
three days prior to the incident, and Bailey was concerned about
him.
9
Appellant testified. After Officer Lopez took a two-handed
baseball-bat-style swing at his head with the baton, appellant
grabbed the baton and swung around to position himself behind
Officer Lopez. Seeing Officer Haener pointing his gun at him,
appellant threw his forearm across Officer Lopez’s neck to hold
him as a shield against “any incoming attack.” Appellant denied
ever placing Officer Lopez in a chokehold, explaining that there
can be no chokehold with only one arm because the choke must
be set with the other arm. Appellant also denied any intent or
attempt to kill Officer Lopez, and he never even thought to take
the officer’s gun, which he could have done very easily and
quickly. Rather, appellant asserted that everything he did was
“instinctual”—he was “in fear [for his] life, because [he saw] a
gun,” and was just “trying to stay alive.” If he had not acted as
he did, Officer Haener would have shot him in the head, and “[he]
would be dead right now.”
Appellant admitted using “[a] little marijuana” the day
before the incident. He explained that marijuana usually makes
him feel calm, and the CBD in marijuana had “aid[ed] in
preventing seizures until this incident.” Appellant testified that
he remembered only parts of the events that day. He
remembered fighting with Terrill, but “did not recognize him as
[his] son at the time,” nor did he realize any of the people he was
fighting were police officers or medical personnel. Throughout
the incident he “was in and out of consciousness” and was “trying
to get a message out” but could not recall what the message was.
Finally, appellant testified that he has books about the
Second Amendment and the unconstitutionality of the current
banking system of the United States, but no books about
resistance to the government.
10
DISCUSSION
I. The Appeal
A. Substantial Evidence Supports Appellant’s
Conviction for Attempted Murder
Appellant contends the evidence presented at trial was
insufficient to support his conviction for the attempted murder of
Officer Lopez. Specifically, appellant argues that there was no
competent evidence that appellant intended to kill Officer Lopez.
Moreover, appellant maintains that because his application of
pressure to Officer Lopez’s neck did not amount to an actual
chokehold, and because he never in fact reached for the officer’s
gun, appellant’s conduct did not establish the required element
for attempted murder of “a direct but ineffectual act toward
accomplishing the intended killing.” (People v. Juarez (2016) 62
Cal.4th 1164, 1170.)
1. Applicable legal principles
As our Supreme Court has repeatedly explained, when
considering a challenge to the sufficiency of the evidence in
support of a conviction, “ ‘ “we review the entire record in the
light most favorable to the judgment to determine whether it
contains substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt.” ’ [Citations.] We consider ‘ “whether . . . any rational
trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” ’ [Citations.] ‘[A] reviewing court
“presumes in support of the judgment the existence of every fact
the trier could reasonably deduce from the evidence.” ’ ” (People
v. Holmes, McClain and Newborn (2022) 12 Cal.5th 719, 780.)
“ ‘ “ ‘ “If the circumstances reasonably justify the trier of fact’s
11
findings, the opinion of the reviewing court that the
circumstances might also be reasonably reconciled with a
contrary finding does not warrant a reversal of the judgment.” ’ ” ’
[Citation.] ‘A reviewing court neither reweighs [the] evidence nor
reevaluates a witness’s credibility.’ [Citation.] Reversal is not
warranted ‘unless it appears “that upon no hypothesis whatever
is there sufficient substantial evidence to support [the
conviction.]” ’ ” (People v. Thomas (2023) 14 Cal.5th 327, 377–
378.) Finally, while “ ‘[e]vidence of a defendant’s state of mind is
almost inevitably circumstantial, . . . circumstantial evidence is
as sufficient as direct evidence to support a conviction.’ ” (People
v. Nguyen (2015) 61 Cal.4th 1015, 1055.)
2. Substantial evidence supports findings that appellant
took a direct but ineffectual step toward killing Officer
Lopez and intended to kill Officer Lopez
“ ‘Attempted murder requires the specific intent to kill and
the commission of a direct but ineffectual act toward
accomplishing the intended killing.’ ” (People v. Sanchez (2016)
63 Cal.4th 411, 457 (Sanchez); People v. Superior Court (Decker)
(2007) 41 Cal.4th 1, 7; § 21a.) Substantial evidence supports both
of these elements in the instant case.
There was substantial evidence to support the conclusion
that appellant’s act of positioning himself behind Officer Lopez,
wrapping his arm around the officer’s neck, and applying
pressure to his throat to place him in a chokehold constituted a
direct but ineffectual act toward killing Officer Lopez. Appellant
was about five inches taller and outweighed Officer Lopez by 70
to 100 pounds. He also had an extensive background in martial
arts as well as training in executing chokeholds, which can be
used to incapacitate a person by cutting off blood flow to the
12
brain and causing unconsciousness. Officer Haener explained
that application of a chokehold can kill a person by breaking
bones in the neck. If the person applying the chokehold is
significantly larger than the subject and strong enough, a
chokehold can be successfully executed with only one arm.
According to Officer Haener, because chokeholds constitute lethal
force, their use is prohibited by the Visalia Police Department
except under extreme circumstances.
On the strength of this evidence, a rational jury could
reasonably conclude that appellant’s act of placing Officer Lopez
in a chokehold⎯itself a potentially lethal maneuver⎯satisfied
the element of taking a direct step toward accomplishing the
officer’s murder. Indeed, that result was thwarted only by Officer
Valenzuela-Adney’s act of striking appellant on the back of his
neck with her baton, stunning appellant and forcing him to
release Officer Lopez.
Appellant argues that the evidence was insufficient to
establish a direct but ineffective step toward killing the officer
because, among other reasons, “Officer Lopez never felt he was
going to lose consciousness,” he could not remember if he had
trouble breathing, and appellant “never used his other hand to
set the choke hold.” But Officer Lopez’s reaction to the chokehold
is irrelevant to establishing the elements of the crime. Moreover,
there was abundant evidence that a chokehold could be
performed with just one arm, and the fact that appellant initiated
a chokehold on Officer Lopez was never in question: Manuele,
appellant’s own martial arts instructor, described the maneuver
as a chokehold, as did Officers Valenzuela-Adney, Lopez, and
Haener, among others.
13
Substantial evidence also supported the jury’s finding that
appellant intended to kill Officer Lopez when he placed the
officer in a chokehold. Appellant himself announced his intent to
kill when he yelled “everybody has to die” and “anyone who
doesn’t bow down to the God will be killed.” Appellant’s own son
told the police that, based on the “state” his father was in that
night, he was “positive” his father had the intent to kill,
especially when it came to other people outside the family. (See
People v. Stone (2009) 46 Cal.4th 131, 141 [a defendant who acts
with the intent to kill a random person is as guilty of attempted
murder as the defendant who intends to kill a specific person].)
In any event, “[b]ecause direct evidence of a defendant’s
intent rarely exists, intent may be inferred from the
circumstances of the crime and the defendant’s acts.” (Sanchez,
supra, 63 Cal.4th at p. 457; People v. Smith (2005) 37 Cal.4th
733, 741 (Smith).) Here, appellant’s extensive martial arts
training together with the inherently lethal nature of the
chokehold he initiated against Officer Lopez was sufficient
evidence from which the jury could reasonably infer appellant’s
intent to kill. (See Smith, at pp. 741–742 [act of firing gun
toward a victim at close, but not point blank, range is sufficient to
support an inference of intent to kill where the shot could have
inflicted a mortal wound had it been on target]; People v. Arias
(1996) 13 Cal.4th 92, 162 [jury could properly infer an intent to
kill from defendant’s purposeful use of a lethal weapon with
lethal force, “even if the act was done without advance
consideration and only to eliminate a momentary obstacle or
annoyance”]; see also People v. Hernandez (1988) 47 Cal.3d 315,
349 [killing by strangulation “is indicative of at least a deliberate
intent to kill”].)
14
“Whether a defendant possessed the requisite intent to kill
is, of course, a question for the trier of fact.” (People v. Lashley
(1991) 1 Cal.App.4th 938, 946; Smith, supra, 37 Cal.4th at
p. 739.) Although reasonable minds may differ on the resolution
of that question, our duty is to determine whether “ ‘ “any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” ’ ” (People v. Holmes,
McClain and Newborn, supra, 12 Cal.5th at p. 780.)
Applying this standard to the jury’s verdict compels the
conclusion that substantial evidence supported appellant’s
attempted murder conviction based on his act of placing Officer
Lopez into a chokehold.
B. By Failing to Object Below, Appellant Forfeited His
Claim that the Trial Court Erred and Violated His
Constitutional Rights by Allowing Him to Appear
Before the Jury in Jail Clothes and Restraints
1. Proceedings below
Appellant appeared in jail attire for jury selection and
testimony on the first day of trial, and was in leg restraints for
the entire trial. After Manuele had identified appellant and
described him as wearing a black and white striped “prison
outfit,” the following discussion took place between the court and
counsel outside the presence of the jury:
“THE COURT: . . . I know we discussed this prior to the
record, but on the record your client is not dressed out in civilian
clothes. He’s wearing jail clothes. That was your choice. You
decided to do that, [defense counsel]?
“[DEFENSE COUNSEL]: Yes.
15
“THE COURT: Okay. Because what I was told was he was
going to do that or have other clothes. He didn’t have other
clothes⎯
“[DEFENSE COUNSEL]: It wasn’t my choice, per se.
They weren’t provided.
“THE COURT: But you agreed to have him come out.
“[DEFENSE COUNSEL]: I did agree to that, yes.”
“THE DEFENDANT: They didn’t let me out of my cell to
be able to call, like, my mom or anybody. You know what I
mean?”
“THE COURT: Yes. [Defense counsel], you could have
called [his] mom.
“[DEFENSE COUNSEL]: I could have. There are some
other issues there. His mother has been ill.”
After the first day of trial, appellant appeared in the
courtroom wearing a gray shirt or sweater, and witnesses no
longer identified him by describing his attire as jail clothing.
As for the leg restraints, defense counsel never made an
objection or otherwise raised an issue about them to the trial
court. Indeed, counsel declined an admonition to the jury to
disregard the restraints, saying: “It’s not an issue. We don’t
need it. [¶] . . . [¶] He’s in a jail outfit. I think they know what’s
going on, or he’s an oddly dressed gentleman.” Initially, the trial
court also believed an instruction was unnecessary because the
jury had not seen the restraints. However, when appellant took
the stand to testify, the restraints were visible to the jury, and
the trial court instructed the jury sua sponte to disregard the fact
that defendant was in physical restraints during trial, not to
speculate about the reason, and not to consider it for any
purpose. (CALCRIM No. 204.)
16
2. Applicable legal principles
“The right to a fair trial is a fundamental liberty secured by
the Fourteenth Amendment,” and is a core principle of our
system of criminal justice. (Estelle v. Williams (1976) 425 U.S.
501, 503 (Estelle) [96 S.Ct. 1691, 48 L.Ed.2d 126].) In line with
that principle, “ ‘the State cannot, consistently with the
Fourteenth Amendment, compel an accused to stand trial before
a jury while dressed in identifiable prison clothes.’ ” (People v.
Garton (2018) 4 Cal.5th 485, 500 (Garton), quoting Estelle, at
p. 512.) Foremost among the “substantial reasons for the rule
that a criminal defendant is entitled to be tried in ordinary
clothing . . . is the rationale that compelling a defendant to go to
trial in jail clothing could impair the fundamental presumption of
our system of criminal justice that the defendant is innocent until
proved guilty beyond a reasonable doubt.” (People v. Taylor
(1982) 31 Cal.3d 488, 494 (Taylor); Garton, at p. 500.) Indeed,
“the defendant’s jail clothing is a constant reminder to the jury
that the defendant is in custody, and tends to undercut the
presumption of innocence by creating an unacceptable risk that
the jury will impermissibly consider this factor.” (Taylor, at
p. 494; Estelle, supra, 425 U.S. at pp. 504–505; Garton, at p. 500.)
Similar concerns arise when a defendant is required to
appear before the jury in physical restraints, which can “carry an
inordinate risk of infringing upon a criminal defendant’s right to
a fair trial.” (People v. Stevens (2009) 47 Cal.4th 625, 632
(Stevens); Deck v. Missouri (2005) 544 U.S. 622, 630 [125 S.Ct.
2007, 161 L.Ed.2d 953] [“Visible shackling undermines the
presumption of innocence and the related fairness of the
factfinding process. [Citation.] It suggests to the jury that the
17
justice system itself sees a ‘need to separate a defendant from the
community at large’ ”].)
“A trial court has broad power to maintain courtroom
security and orderly proceedings, and its decisions on these
matters are reviewed for abuse of discretion.” (People v. Simon
(2016) 1 Cal.5th 98, 115.) “ ‘However, the court’s discretion to
impose physical restraints is constrained by constitutional
principles. Under California law, “a defendant cannot be
subjected to physical restraints of any kind in the courtroom
while in the jury’s presence, unless there is a showing of a
manifest need for such restraints.” ’ ” (People v. Poore (2022) 13
Cal.5th 266, 285 (Poore), quoting People v. Lomax (2010) 49
Cal.4th 530, 558–559; Simon, at p. 115.) The federal
Constitution also “ ‘forbids the use of visible shackles . . . unless
that use is “justified by an essential state interest”—such as the
interest in courtroom security—specific to the defendant on
trial.’ ” (Poore, at p. 285, quoting Lomax, at p. 559; People v.
Covarrubias (2016) 1 Cal.5th 838, 870.) Our Supreme Court has
declared that “[t]he use of physical restraints in the absence of a
record showing of violence, a threat of violence, or other
nonconforming conduct is an abuse of discretion.” (Simon, at
p. 115; Covarrubias, at p. 871.)
“Although no formal hearing on the matter is required
[citation], ‘when the use of restraints is based on conduct of the
defendant that occurred outside the presence of the trial court,
sufficient evidence of such conduct must be presented on the
record so that the court may make its own determination of the
nature and seriousness of the conduct and whether there is a
manifest need for such restraints. [Citation.] The court may not,
we have emphasized, merely rely on the judgment of law
18
enforcement or court security officers or the unsubstantiated
comments of others.’ ” (Poore, supra, 13 Cal.5th at p. 285,
quoting Simon, supra, 1 Cal.5th at p. 115; Stevens, supra, 47
Cal.4th at pp. 641–642 [“it is the function of the trial court, not
the prosecutor or law enforcement personnel, to determine
whether manifest need supports the use of physical restraints in
the courtroom”].)
Both rights⎯to appear before the jury unrestrained and in
civilian rather than jail attire⎯must be asserted in the trial
court to preserve the issue for appeal. (Estelle, supra, 425 U.S.
512–513 [jail clothes]; Taylor, supra, 31 Cal.3d at pp. 495–496
[jail clothes]; In re Avena (1996) 12 Cal.4th 694, 731 [jail clothes];
People v. Ward (2005) 36 Cal.4th 186, 206 (Ward) [restraints];
People v. Majors (1998) 18 Cal.4th 385, 406 [restraints]; People v.
Tuilaepa (1992) 4 Cal.4th 569, 583 [restraints].) With regard to
jail attire, the United States Supreme Court has held that “the
failure to make an objection to the court as to being tried in
[prison] clothes, for whatever reason, is sufficient to negate the
presence of compulsion necessary to establish a constitutional
violation.” (Estelle, supra, 425 U.S. 512–513.) Likewise, “[i]t is
settled that the use of physical restraints in the trial court cannot
be challenged for the first time on appeal.” (Tuilaepa, at p. 583;
Ward, at p. 206 [same]; Majors, at p. 406 [same]; People v.
Stankewitz (1990) 51 Cal.3d 72, 95 [defendant “must object to the
use of physical restraints or the claim will be deemed waived on
appeal”].)
3. Analysis
Appellant made no objection nor did he otherwise raise any
issue in the trial court regarding his appearance before the jury
in jail attire or leg restraints. He therefore forfeited these claims
19
on appeal. (Taylor, supra, 31 Cal.3d at p. 495 [“Although the
right to be tried in civilian clothing is a constitutional right
valuable to a fair trial, the right may be waived by a failure to
timely object or otherwise bring the matter to the court’s
attention”]; Ward, supra, 36 Cal.4th at p. 206 [having failed to
make an objection at trial on constitutional or any other grounds
regarding his physical restraints, defendant forfeited the claim
on appeal].)
Appellant seeks to avoid forfeiture of the claim by asserting
that his counsel was ineffective for failing to object, thereby
violating his right to counsel under the Sixth Amendment to the
federal Constitution. Under California or federal constitutional
principles, the standard for judging an ineffective assistance of
counsel claim is “ ‘whether counsel’s conduct so undermined the
proper functioning of the adversarial process that the trial cannot
be relied on as having produced a just result.’ ” (In re Valdez
(2010) 49 Cal.4th 715, 729 (Valdez), quoting Strickland v.
Washington (1984) 466 U.S. 668, 686 (Strickland) [104 S.Ct.
2052, 80 L.Ed.2d 674].)
To establish ineffectiveness, a defendant must show both
that “counsel’s performance was deficient”⎯that is, the attorney’s
“representation fell below an objective standard of
reasonableness” “under prevailing professional norms,” and that
“the deficient performance prejudiced the defense.” (Strickland,
supra, 466 U.S. at pp. 687, 688; Valdez, supra, 49 Cal.4th at
p. 729; Williams v. Taylor (2000) 529 U.S. 362, 390–391 [120
S.Ct. 1495, 146 L.Ed.2d 389].) “This second part of the
Strickland test ‘is not solely one of outcome determination.
Instead, the question is “whether counsel’s deficient performance
renders the result of the trial unreliable or the proceeding
20
fundamentally unfair.” ’ ” (In re Hardy (2007) 41 Cal.4th 977,
1019; Valdez, at p. 729.)
In addressing an ineffective assistance of counsel claim, a
reviewing “ ‘court need not determine whether counsel’s
performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies.
. . . If it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice, which we expect will often
be so, that course should be followed.’ ” (People v. Carrasco
(2014) 59 Cal.4th 924, 982, quoting Strickland, supra, 466 U.S. at
p. 697.)
So it is in the case at bar. Appellant’s claim of ineffective
assistance fails because he has not demonstrated prejudice
warranting reversal. As a preliminary matter, given that
appellant was charged with the attempted murder of a police
officer, it would have come as no surprise to the jury that
appellant was in custody. Moreover, as set forth above,
substantial evidence supported the jury’s findings that with the
specific intent to kill, appellant took a direct but ineffectual step
toward the killing Officer Lopez. (Sanchez, supra, 63 Cal.4th at
p. 457.) But most significantly, the jury found not true the
allegation that the attempted murder was premeditated and
deliberate, and it acquitted appellant on the charge of criminal
threats. These verdicts clearly demonstrate that appellant’s
appearance at trial in jail clothes and leg restraints did not
prejudice the jury against him, much less result in a conviction
based on a view of appellant “as a dangerous criminal, who
belonged in jail.”
21
C. The Trial Court Had No Sua Sponte Duty to Instruct
the Jury with CALCRIM No. 3425 on the Defense of
Unconsciousness
Appellant contends that the trial court violated his
constitutional rights and committed reversible error by failing
sua sponte to instruct the jury with CALCRIM No. 34256 on the
defense of unconsciousness. We disagree.
1. Applicable legal principles
“ ‘Unconsciousness, if not induced by voluntary
intoxication, is a complete defense to a criminal charge.’ ” (People
v. Parker (2017) 2 Cal.5th 1184, 1223; People v. Halvorsen (2007)
42 Cal.4th 379, 417 (Halvorsen); see also § 26, class Four.) “To
constitute a defense, unconsciousness need not rise to the level of
coma or inability to walk or perform manual movements; it can
exist ‘where the subject physically acts but is not, at the time,
conscious of acting.’ ” (Halvorsen, at p. 417.) However, it is
presumed “that a person who appears to act in an apparent state
of consciousness is conscious. [Citation.] Therefore, the burden
is on a criminal defendant to produce evidence rebutting this
presumption of consciousness.” (People v. James (2015) 238
Cal.App.4th 794, 804 (James).)
6 CALCRIM No. 3425 provides that “[t]he defendant is not
guilty of [a crime] if [he or she] acted while unconscious.
Someone is unconscious when he or she is not conscious of his or
her actions.” A person “may be unconscious even though able to
move,” and unconsciousness may be caused by, among other
things, an epileptic seizure or involuntary intoxication. However,
“[t]he defense of unconsciousness may not be based on voluntary
intoxication.”
22
“A trial court must instruct on unconsciousness on its own
motion if it appears the defendant is relying on the defense, or if
there is substantial evidence supporting the defense and the
defense is not inconsistent with the defendant’s theory of the
case.” (People v. Rogers (2006) 39 Cal.4th 826, 887 (Rogers).) In
assessing the sufficiency of the evidence to warrant instruction on
a defense, the trial court does not judge the credibility of the
defense evidence, but determines “only whether ‘there was
evidence which, if believed by the jury, was sufficient to raise a
reasonable doubt’ ” as to the defendant’s guilt. (People v. Salas
(2006) 37 Cal.4th 967, 982.)
2. Analysis
Appellant’s actions during the encounter with police and
his own testimony demonstrated that appellant was fully aware
of his surroundings, he reacted quickly and purposefully to
changing circumstances, and he knew what he was doing
throughout the incident. Moreover, the defense presented no
medical evidence or expert testimony to show that appellant
might have been acting in a state of unconsciousness.
Accordingly, because substantial evidence did not support a
finding of unconsciousness and appellant plainly did not rely on
the defense, the trial court had no sua sponte duty to instruct the
jury with CALCRIM No. 3425 in this case.
Appellant had extensive training in martial arts and MMA
fighting, and used that training when he attacked the medical
and law enforcement personnel who responded to the 911 call
that day. Although appellant testified that throughout the attack
he was “out of it,” “in and out of consciousness,” and had very
little recollection of events, he directly contradicted those
statements when he testified about his memories of the precise
23
manner in which he put his arm around Officer Lopez’s neck,
exactly what he intended to accomplish with that maneuver, and
other specific details about the sequence of events. Contrary to
appellate counsel’s assertion in oral argument, appellant’s
testimony about his actions during the incident was not simply
what he would have done in response to hypothetical questions
posed by the prosecutor. Rather, throughout his testimony,
appellant described his precise movements in response to the
situation and explained in some detail his rationale behind each
of his actions.
Further, appellant’s actions told a very different story than
the one he sought to portray to the jury. As he lay handcuffed on
the ground, appellant first resisted the paramedics’ and officers’
efforts to move him to a gurney for treatment by going limp and
becoming dead weight. He remained still and limp until the
moment one of the handcuffs was released, at which point he
suddenly jumped up and delivered a hard MMA-style kick to the
EMT’s groin. As officers attempted to subdue appellant, he
continued kicking and fighting anyone who got close to him.
Appellant stopped fighting when Officer Haener used his Taser to
subdue him, but the moment the tasing cycle ended, appellant
charged Officer Lopez. After grabbing Officer Lopez’s baton,
appellant swung around and placed his forearm on the officer’s
neck, holding him as a human shield.
In light of the overwhelming evidence showing that
appellant was fully aware of his actions throughout his encounter
with the police, his claimed memory lapses and assertions of
being “out of it” do not constitute substantial evidence supporting
an instruction on the defense of unconsciousness. (See
Halvorsen, supra, 42 Cal.4th at p. 418 [“The complicated and
24
purposive nature of [defendant’s] conduct” suggested defendant
“did not lack awareness of his actions during the course of the
offenses”].) Indeed, a “defendant’s own testimony that he could
not remember portions of the events, standing alone, [is]
insufficient to warrant an unconsciousness instruction.” (Rogers,
supra, 39 Cal.4th at p. 888; see also People v. Froom (1980) 108
Cal.App.3d 820, 829–830 [evidence of defendant’s forgetfulness
and statement to psychiatrist that he “awakened” after the crime
was committed was insufficient for unconsciousness instruction];
People v. Heffington (1973) 32 Cal.App.3d 1, 10 [there is no
“ineluctable rule of law” that holds “a defendant’s inability to
remember or his ‘hazy’ recollection supplies an evidentiary
foundation for a jury instruction on unconsciousness”]; People v.
Coston (1947) 82 Cal.App.2d 23, 40 [“a defendant’s mere
statement of forgetfulness, unsupported by any other evidence, is
at most very little evidence of unconsciousness at the time of
performing a particular act” and does not justify a finding of
unconsciousness].)
Appellant’s reliance on James, supra, 238 Cal.App.4th 794,
to argue that his “erratic, unusual behavior” supported an
unconsciousness instruction is misplaced. In James, the court
reversed, finding substantial evidence that defendant was
unconscious during the commission of the offenses supported
instruction on the defense of unconsciousness, which the trial
court had refused. (James, at p. 797.) The appellate court’s
substantial evidence finding was based on witness descriptions of
defendant’s bizarre actions as well as medical expert reports and
testimony that defendant suffered from a seizure disorder and
posttraumatic stress, which had caused a “severe or bizarre
psychotic episode” during which he “ ‘did not have awareness of
25
what took place’ ” and “ ‘had no knowledge of his behavior’ ” when
he committed mayhem and assault with great bodily injury.
(James, at pp. 797–798, 800–801; see also People v. Gana (2015)
236 Cal.App.4th 598, 609–610 (Gana) [substantial evidence
supported unconsciousness instruction where medical expert
testified defendant was likely experiencing delirium brought on
by psychosis, symptoms of depression, and cancer medications].)
In stark contrast to the James and Gana cases, no medical
expert testimony was presented here to suggest that appellant
was unconscious when he committed the offenses. Moreover,
while witnesses stated appellant had a history of “seizures” and
described appellant’s unusual behavior that day and on previous
occasions (suddenly announcing he was God, appearing to speak
in tongues, etc.), there was no evidence appellant was unaware of
his surroundings or what he was doing when he resisted the
police and paramedics and launched his attacks. (Cf. Gana,
supra, 236 Cal.App.4th at p. 609 [defendant remained silent
when asked a series of standard questions, her eyes were wide
open in “a thousand mile stare,” and her face lacked emotion
when she shot the victim].)
Finally, the trial court had no sua sponte duty to give
CALCRIM No. 3425 because appellant did not actually rely on an
unconsciousness defense. Rather, the entire defense was built on
the premise that appellant’s mental state was such that he did
not form an intent to kill Officer Lopez. The defense did not
articulate any theory of unconsciousness or present any medical
evidence or expert testimony to support an unconsciousness
defense. (Gana, supra, 236 Cal.App.4th at p. 609 [“ ‘medical
testimony . . . as to why [the defendant] was unconscious’ can
support an instruction on this defense”].)
26
Moreover, even defense counsel observed that any
conclusion about appellant’s mental state that day would be
speculative: “What do you all make of [defendant’s] mental state
that day? As I said, we don’t have a doctor here. We don’t have a
professional. We’re all kind of guessing.” Indeed, rather than
argue unconsciousness as a defense, counsel urged the jury to
consider what evidence there was about appellant’s mental state
and find simply that he did not intend to kill. “[Defendant] very
plainly told you he had no intention to kill Officer Lopez by
choking him. . . . [¶] That’s basically our case. We’re asking you
not to find guilt on the criminal threats against his son, because
[Terrill] was not fearful for his safety, and the other charge,
Count 1, attempted murder of a police officer. He did not have
the intent to do it. That’s our case. We’re not refuting the other
stuff at all. You don’t get to punch police officers. No.”
D. Appellant Forfeited Any Argument that the Trial
Court Abused Its Discretion in Admitting Testimony
About the Weapons and Books Found in His Home
Appellant contends that the trial court abused its
discretion “by admitting testimony that [he] had a cache of guns
and knives in his house and that he read antigovernment books.”
Appellant argues that admission of this evidence allowed the
People to “portray appellant to the jury as a dangerous active
shooter, who always had killing on his mind.” Appellant
maintains that because the evidence was irrelevant, more
prejudicial than probative, and constituted highly inflammatory
propensity evidence, its admission was highly prejudicial and
violated his federal Constitutional rights, requiring reversal. We
conclude that in the absence of a specific objection, appellant
27
forfeited the claim and the trial court did not abuse its discretion
in admitting the evidence.
1. Proceedings below
On redirect examination, the prosecutor asked appellant’s
son Terrill if appellant read any antigovernment books. The trial
court overruled defense counsel’s objections on grounds of
speculation and lack of personal knowledge. Terrill said he only
knew appellant read the Christian Bible and had some books
about the constitution. The prosecutor then asked Terrill if
appellant had any guns. Terrill answered yes, and the prosecutor
asked how many. After the trial court overruled defense
counsel’s relevance objection, Terrill testified that appellant had
perhaps more than five guns and a lot of knives, which he
collected.
Officer Haener testified that during a search of appellant’s
house he discovered numerous firearms, more than 6,000 rounds
of ammunition, and large capacity-style magazines for firearms.
He also testified to seeing “numerous books, such as
antigovernment and certain religious-occult-type literature.”
When the prosecutor asked the officer what he meant by
“antigovernment books,” defense counsel interposed a relevance
objection. The prosecutor responded that “[i]t goes to motive,”
and the trial court overruled the objection. Officer Haener
answered: “. . . some were books for amendments to the
constitution. Some were books that were more leaning towards
antigovernment, like, you know, not complying with the
government. I didn’t actually read any of the books. It was just
the covers and laying about.” The officer added that he just saw
the titles. “I didn’t actually physically go into those books and
read those books, because it was such a chaotic scene. I was
28
actually more worried about the firearms, due to the fact that
what had just occurred, about doing something with those
firearms. And family members had stated that they wanted
those firearms removed from the house.” When asked if he had
found any swords, knives, or machetes, Officer Haener replied, “I
believe there was in excess of 30 bladed-type instruments.”
During the defense cross-examination of Officer Haener,
the following exchange occurred:
“[DEFENSE COUNSEL:] I just want to understand about
the antigovernment books as related to motive for the incident.
It’s your testimony that once you looked at [defendant’s] home
and you found the antigovernment books, that you felt that that
provided some motive for his actions that day?
“[OFFICER HAENER:] I believe that it was⎯it led to the
totality of the circumstances. Part of my training and experience,
too, has been training for active shooter situations. And in active
shooter training they talk about all the things I saw when I
walked into that room.
“[DEFENSE COUNSEL:] Certainly. So him yelling, ‘I am
God,’ is related somehow to the antigovernment motive; correct?
“[OFFICER HAENER:] Again, it’s the totality. It’s the
aggression. It’s the⎯it’s the totality of everything that I saw,
everything I experienced that day.”
In argument to the jury, the prosecutor cited the officer’s
testimony to argue premeditation and intent to kill:
“[PROSECUTOR]: . . . So he’s reading antigovernment
books. He’s got what could only be described as a cache of
weapons, which is fine. People are allowed to have weapons, a
second amendment right. It shows that killing’s on his mind. [¶]
When they searched the defendant’s room and his house, [Officer
29
Haener] saw, based on his training and experience in this
particular issue, matched up all the signs of an active shooter;
killing is on his mind. It’s always an option. It’s always on the
table. All he needs is the opportunity and a target. It’s always
there.”
2. Applicable legal principles
In general, “[e]xcept as otherwise provided by statute, all
relevant evidence is admissible.” (Evid. Code, § 351; People v.
Turner (2020) 10 Cal.5th 786, 805.) Relevant evidence is defined
as evidence “having any tendency in reason to prove or disprove
any disputed fact that is of consequence to the determination of
the action.” (Evid. Code, § 210; People v. Mataele (2022) 13
Cal.5th 372, 413 (Mataele).)
An appellate court reviews “the trial court’s rulings on
relevance and the admission of evidence under Evidence Code
sections 352 and 1101 for abuse of discretion.” (People v. Battle
(2021) 11 Cal.5th 749, 799.) The “trial court’s decision to admit
or exclude evidence ‘ “ ‘will not be disturbed unless there is a
showing that the trial court acted in an arbitrary, capricious, or
absurd manner resulting in a miscarriage of justice.’ ” ’
[Citations.] ‘This standard of review affords considerable
deference to the trial court provided that the court acted in
accordance with the governing rules of law. We presume that the
court properly applied the law and acted within its discretion
unless the appellant affirmatively shows otherwise.’ ” (Mataele,
supra, 13 Cal.5th at p. 414.)
Pursuant to Evidence Code section 353, subdivision (a), “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
30
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.” Accordingly, “a defendant
forfeits an argument on appeal where he fails to object at all to
the evidence in the trial court or when he objects on substantively
distinct grounds.” (People v. Flinner (2020) 10 Cal.5th 686, 726;
People v. Seijas (2005) 36 Cal.4th 291, 302 [“In accordance with
[Evidence Code section 353], we have consistently held that the
‘defendant’s failure to make a timely and specific objection’ on the
ground asserted on appeal makes that ground not cognizable”].)
3. Appellant forfeited any claim of error by failing to make
an appropriate objection
Appellant never sought exclusion of the evidence regarding
the cache of guns, magazines, ammunition, and bladed weapons
in his possession or the “antigovernment” books found in his
home under Evidence Code sections 352 or 1101. Although
defense counsel objected on relevance grounds to the question to
Terrill about the number of firearms appellant had in his
possession, there was no objection at all to the general questions
about whether appellant possessed any guns, swords, knives, or
machetes. Similarly, as appellant acknowledges, there was no
objection on any grounds whatsoever to Officer Haener’s
testimony about the firearms, 6,000 rounds of ammunition, and
large capacity magazines that police found in appellant’s room.
Defense counsel also did not object when the prosecutor asked
Officer Haener whether he found any swords, knives, or machetes
in the room, or when Officer Haener responded that he found “in
excess of 30 bladed-type instruments.” As for the
antigovernment books, appellant asserted one relevance
31
objection⎯when the prosecutor asked Officer Haener what he
meant by “antigovernment books.”
Appellant also appears to argue that Officer Haener’s
testimony regarding his impression that appellant had the
characteristics of an “active shooter” based on his possession of
the guns and antigovernment books was improperly admitted.
But it was defense counsel who elicited that testimony, and after
it came out, appellant neither objected to the officer’s testimony
nor requested that it be stricken.
The trial court did not abuse its discretion in overruling
appellant’s two relevance objections to the questions about the
number of guns in appellant’s possession and what the officer
meant when he described the books in appellant’s room as
“antigovernment.” The evidence that appellant possessed
numerous weapons was relevant because it corroborated
testimony that he was familiar with the use of these weapons and
weapon takeaways, which in turn tended to prove a contested
issue⎯that appellant’s actions in grabbing Officer Lopez’s baton
and reaching for his firearm were calculated acts. Further,
evidence that appellant had “antigovernment” books in his room
was relevant to explain appellant’s response to police authority
and show intent and a motive for his unrelenting resistance to
the police and medical personnel who were there at the family’s
request.
“A proper objection must ‘ “ ‘fairly inform the trial court, as
well as the party offering the evidence, of the specific reason or
reasons the objecting party believes the evidence should be
excluded, so the party offering the evidence can respond
appropriately and the court can make a fully informed
ruling.’ ” ’ ” (People v. Jackson (2016) 1 Cal.5th 269, 328.) Other
32
than his two relevance objections, appellant neither objected nor
asked the trial court to exercise its discretion under Evidence
Code section 352 to exclude (or strike) any of this testimony on
the ground that its probative value was outweighed by the
substantial danger of undue prejudice. Finally, the record is
devoid of any mention of Evidence Code section 1101, much less a
defense request to exclude evidence on that basis.
Having failed to object to the admission of the testimony
about appellant’s weapons and “antigovernment books” on the
grounds asserted on appeal, appellant has forfeited this claim of
error.
4. Appellant cannot establish ineffective assistance of
counsel
Appellant contends that his challenge to the admission of
testimony about the weapons and books in his possession has not
been forfeited because defense counsel was ineffective for failing
to properly object. He argues that where, as here, there could be
no satisfactory explanation for the failure to object or offer a
sufficient basis to exclude the evidence, trial counsel’s failure to
preserve an evidentiary error for appeal constitutes ineffective
assistance of counsel.
As our Supreme Court has observed, however, a defendant
“cannot automatically obtain merit review of a noncognizable
issue by talismanically asserting ineffective assistance of counsel.
[¶] Whether to object at trial is among ‘the minute to minute and
second to second strategic and tactical decisions which must be
made by the trial lawyer during the heat of battle.’ [Citation.]
Although trial counsel may have the duty to protect the record
when their client’s trial interests are truly at stake, they have no
duty to object simply to generate appellate issues. Sometimes,
33
the best action an attorney can take regarding an available
objection is not to make it.” (People v. Riel (2000) 22 Cal.4th
1153, 1202.)
Moreover, assuming deficient performance by counsel, to
establish prejudice under the Strickland standard, “[i]t is not
enough ‘to show that the errors had some conceivable effect on
the outcome of the proceeding.’ ” (Harrington v. Richter (2011)
562 U.S. 86, 104 [131 S.Ct. 770, 178 L.Ed.2d 624] (Harrington).)
Rather, the defendant must show a reasonable probability that
he would have received a more favorable result had counsel’s
performance not been deficient. (Strickland, supra, 466 U.S. at
pp. 693–694.) And “[t]he likelihood of a different result must be
substantial, not just conceivable.” (Harrington, at p. 112; People
v. Jacobs (2013) 220 Cal.App.4th 67, 75.)
Here, appellant fails to demonstrate prejudice in support of
his ineffective assistance claim regarding the admission of
testimony about his possession of guns, knives, and
“antigovernment” books. As discussed, the evidence was relevant
to the contested issues of motive and intent. Further, given the
jury’s not true finding on the premeditation allegation and its
acquittal on the criminal threats charge, appellant cannot show a
reasonable likelihood of a more favorable result had defense
counsel sought to exclude the testimony under Evidence Code
sections 352 or 1101.
E. Remand for Resentencing Is Required
The parties agree that the trial court erred in sentencing
appellant on both counts 1 and 2 in violation of section 654,
because both crimes were committed “by a single act, as part of
[a] continuous course of conduct, on the same occasion, against
the same victim,” that is, against Officer Lopez. (People v. Hester
34
(2000) 22 Cal.4th 290, 294 [“Section 654 precludes multiple
punishments for a single act or indivisible course of conduct”].)
At the time of appellant’s sentencing in 2019, section 654
provided that an act or omission that was punishable in different
ways under different provisions of law had to be punished under
the law that provided for the longest possible term of
imprisonment. (Former § 654, subd. (a).) Assembly Bill No. 518
amended section 654 by removing the requirement that the trial
court impose sentence under the law providing for the longest
term of imprisonment and gave the trial court discretion to
impose punishment under any applicable provision of law.
(Stats. 2021, ch. 441, § 1.) The new legislation became effective
on January 1, 2022, while this appeal was pending.
The parties agree that appellant is entitled to the
retroactive benefit of Assembly Bill No. 518 and remand for
resentencing is required. (People v. Mani (2022) 74 Cal.App.5th
343, 379 [“Because Assembly Bill 518 was enacted while
defendant’s appeal was not yet final and it provides the trial
court new discretion to impose a lower sentence, defendant is
entitled to its ameliorative benefit”]; People v. Sek (2022) 74
Cal.App.5th 657, 673 [same].) Accepting the parties’ agreement,
we remand the matter for resentencing to allow the trial court to
exercise its discretion in imposing sentence on either count 1, the
attempted murder of Officer Lopez, or count 2, assault on Officer
Lopez with force likely to produce great bodily injury.
Appellant also contends he is entitled to the retroactive
benefit of Senate Bill No. 567, effective January 1, 2022, which
amended section 1170, subdivision (b) to make the lower term the
presumptive sentence for a term of imprisonment under certain
35
circumstances.7 (Stats. 2021, ch. 731, § 1.3, adding § 1170, subd.
(b)(6).) Respondent agrees that section 1170, subdivision (b), as
amended by Senate Bill No. 567 applies retroactively in this case.
(People v. Flores (2022) 73 Cal.App.5th 1032, 1039 [“the amended
version of section 1170, subdivision (b) that became effective on
January 1, 2022, applies retroactively . . . as an ameliorative
change in the law applicable to all nonfinal convictions on
appeal”].)
Accordingly, on remand, the trial court may revisit all of its
prior sentencing decisions, including what term to impose under
section 1170, subdivision (b), as amended by Senate Bill No. 567.
(People v. Valenzuela (2019) 7 Cal.5th 415, 424–425 [“the full
resentencing rule allows a court to revisit all prior sentencing
decisions when resentencing a defendant”].)
7 Specifically, newly added subdivision (b)(6) of section
1170 provides:
“Notwithstanding paragraph (1), and unless the court finds
that the aggravating circumstances outweigh the mitigating
circumstances that imposition of the lower term would be
contrary to the interests of justice, the court shall order
imposition of the lower term if any of the following was a
contributing factor in the commission of the offense:
“(A) The person has experienced psychological, physical, or
childhood trauma, including, but not limited to, abuse, neglect,
exploitation, or sexual violence.
“(B) The person is a youth, or was a youth as defined under
subdivision (b) of Section 1016.7 at the time of the commission of
the offense.
“(C) Prior to the instant offense, or at the time of the
commission of the offense, the person is or was a victim of
intimate partner violence or human trafficking.”
36
II. The Habeas Petition
In reviewing a habeas corpus matter, we presume the
correctness of the criminal judgment, for “ ‘habeas corpus is an
extraordinary, limited remedy against a presumptively fair and
valid final judgment.’ ” (In re Reno (2012) 55 Cal.4th 428, 450,
quoting People v. Gonzalez (1990) 51 Cal.3d 1179, 1260
(Gonzalez).) Thus, “ ‘the petitioner bears a heavy burden initially
to plead sufficient grounds for relief, and then later to prove
them’ ” by a preponderance of the evidence. (In re Price (2011) 51
Cal.4th 547, 559, quoting People v. Duvall (1995) 9 Cal.4th 464,
474 (Duvall).)
The issuance of an OSC following an appellate court’s
receipt of a petition for a writ of habeas corpus does not “establish
a prima facie determination that petitioner is entitled to the
relief requested.” (In re Serrano (1995) 10 Cal.4th 447, 455.)
Rather, it “signifies the court’s preliminary determination that
the petitioner has pleaded sufficient facts that, if true, would
entitle him to relief.” (Duvall, supra, 9 Cal.4th at pp. 475, italics
added; People v. Ruiz (2023) 89 Cal.App.5th 324, 328–329.)
In response to the OSC, the respondent files a return,
alleging facts to justify the petitioner’s confinement, and the
petitioner answers the return with a traverse. (Duvall, supra,9 Cal.4th at pp. 475–476.) “Once the issues have been joined in
this way, the court must determine whether an evidentiary
hearing is needed. If the written return admits allegations in the
petition that, if true, justify the relief sought, the court may grant
relief without an evidentiary hearing. [Citations.] Conversely,
consideration of the written return and matters of record may
persuade the court that the contentions advanced in the petition
lack merit, in which event the court may deny the petition
37
without an evidentiary hearing.” (People v. Romero (1994) 8
Cal.4th 728, 739 (Romero).)
Here, petitioner alleges he was deprived of effective
assistance of counsel on account of the following acts and
omissions of his defense counsel: (1) failing to arrange for
petitioner to wear civilian clothing during trial and allowing
petitioner to appear before the jury without objection in jail
clothing; (2) failing to object or otherwise seek to exclude
testimony concerning petitioner’s possession of a large number of
weapons and “antigovernment” books; (3) failing first to
investigate an involuntary intoxication and/or “mental health”
defense by obtaining petitioner’s medical records from his
Welfare and Institutions Code section 5150 hospitalization, and
then failing to use those records to present a “mental health,”
unconsciousness, and involuntary intoxication defenses.
“The burden of proving ineffective assistance of counsel is
on the defendant.” (People v. Babbitt (1988) 45 Cal.3d 660, 707
(Babbitt).) As set forth above, “[t]o prevail on [his] claim[s],
petitioner must prove ‘ “that counsel’s representation fell below
an objective standard of reasonableness under prevailing
professional norms, and that counsel’s deficient performance was
prejudicial, i.e., that a reasonable probability exists that, but for
counsel’s failings, the result would have been more favorable to
the defendant.” ’ ” (In re Crew (2011) 52 Cal.4th 126, 150,
quoting In re Roberts (2003) 29 Cal.4th 726, 744–745.) Again, the
probability of a better result “must be substantial, not just
conceivable” (Harrington, supra, 562 U.S. at p. 112), such that
the result of the trial is unreliable or the entire proceeding
fundamentally unfair. (Valdez, supra, 49 Cal.4th at p. 729.)
38
A. Failure to Arrange for Civilian Clothing and
Allowing Petitioner to Appear Before the Jury
Without Objection in Jail Clothing
Petitioner asserts the same ineffective assistance of counsel
claim that he advances on appeal, and the facts alleged in the
petition to support the claim are the same as those discussed in
the context of the appeal. The sole factual dispute is whether
petitioner appeared before the jury in jail attire for the entire
trial or only on the first day. However, no evidentiary hearing is
warranted to resolve this dispute because, as set forth above,
petitioner cannot show a reasonable probability that he would
have received a more favorable result had defense counsel’s
performance not been deficient. (Strickland, supra, 466 U.S. at
pp. 693–694; Romero, supra, 8 Cal.4th at p. 739; Babbitt, supra,
45 Cal.3d at p. 708.) Accordingly, based on our review of the
entire record and our conclusion that defense counsel’s failures to
arrange for civilian clothing or object to petitioner’s appearance
before the jury in jail attire were not prejudicial, we need not
determine whether counsel’s performance was deficient in this
regard.
B. Failure to Object and Seek Exclusion of Testimony
Regarding Petitioner’s Cache of Weapons and
Antigovernment Books Under Evidence Code
Sections 352 and 1101, Subdivision (b)
Petitioner’s claim of ineffective assistance of counsel based
on the failure to object and seek to exclude testimony regarding
possession of weapons and “antigovernment” books is identical to
the ineffectiveness claim he advances on appeal, and lacks merit
for the same reasons. As discussed above, petitioner cannot
establish prejudice based on counsel’s omission because the
39
evidence was relevant to the contested issues of motive and
intent. And based on the jury’s not true finding on the
premeditation allegation and its acquittal on the criminal threats
charge, petitioner cannot show a reasonable likelihood of a more
favorable result had defense counsel sought to exclude the
testimony under Evidence Code sections 352 or 1101.
C. Failure to Investigate and Obtain Petitioner’s
Medical Records to Support Potential Mental State
Defenses
Petitioner asserts defense counsel rendered ineffective
assistance of counsel by failing to obtain petitioner’s medical
records from his Welfare and Institutions Code section 5150
hospitalization, failing to investigate possible “mental defenses”
based on those records, and failing to use the exculpatory
evidence in the medical records to support unconsciousness,
involuntary intoxication, and other mental-health-related
defenses.
It is undisputed that defense counsel did not obtain the
medical records from petitioner’s Welfare and Institutions Code
section 5150 hospitalization. However, this fact alone does not
establish deficient performance by counsel. Even in a death
penalty case, “[c]riminal trial counsel [has] no blanket obligation
to investigate possible ‘mental’ defenses.” (Gonzalez, supra, 51
Cal.3d at p. 1244; People v. Klvana (1992) 11 Cal.App.4th 1679,
1712.) To prevail on his claim that trial counsel’s investigative
omission amounted to constitutionally inadequate assistance,
“ ‘ “[t]he petitioner must demonstrate that counsel knew or
should have known that further investigation was necessary, and
must establish the nature and relevance of the evidence that
counsel failed to present or discover.” ’ ” (In re Cox (2003) 30
40
Cal.4th 974, 1016.) Thus, even assuming defense counsel did not
adequately investigate possible mental health defenses,
“petitioner must carry his burden of proving prejudice as a
‘demonstrable reality,’ not simply speculation as to the effect of
the errors or omissions of counsel.” (People v. Williams (1988) 44
Cal.3d 883, 937; People v. Orloff (2016) 2 Cal.App.5th 947, 956.)
To establish prejudice based on trial counsel’s incompetent
investigation or presentation of evidence, the petitioner must also
demonstrate that the undiscovered evidence would have been
exculpatory. (People v. Bolin (1998) 18 Cal.4th 297, 334; In re
Noday (1981) 125 Cal.App.3d 507, 522.) The reviewing court
must then determine the strength of any evidence trial counsel
could have discovered with reasonable investigation and the
strength of the evidence presented at trial. (In re Thomas (2006)
37 Cal.4th 1249, 1265.)
Here, petitioner asserts that the medical records contained
exculpatory evidence that would have negated specific intent. In
particular, the medical records submitted as an exhibit in
support of the petition show a positive drug test for cannabinoids
and benzodiazepines, a diagnosis of “Brief Psychotic Disorder”
with a note to “[rule out] substance induced Psychosis,” and
multiple references to “severe psychotic features including
delusions.” The July 31, 2017 assessment specifically states that
petitioner presented with “acute episode of psychosis . . . after
ingesting unknown substance (suspicious for Spice).” The
medical records also note periodic “religious hallucinations,” a
preoccupation with religion, “command hallucinations,” “altered
awareness of immediate physical environment,” and “severe
psychotic features including delusions” that “he is God and
everyone needs to bow down to him.”
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Finally, the follow-up psychiatry consultation notes dated
August 2, 2017, contain the following description of petitioner:
“[Patient] presents very intense, angry [with] psychotic features.
[Patient] when asked what started the fight that brought him
into the hospital states, ‘IT controlled those actions, IT DID! IT
DID! It is from below, far below many layers!’ [Patient] states
‘THE LORD, GOD, COMMUNICATES THROUGH ME AND
YOU SHOULD ALL BOW TO YOUR F***ING KNEES!’ ‘THIS
ONE IS UNDER HEAVEN, IS THE CHOSEN KING!’ [Patient]
remains very intense, aggressive [with] severe psychosis and
psychotic agitation. [Patient] has been noticeably responding to
internal stimuli and endorsing auditory hallucinations as well as
delusions that he is all powerful, he is God, and that he is
controlled by God and ‘others.’ [Patient] is very labile, starting
the interview calmly then becoming loud [with] intense eye
contact, changing his voice and banging his hand against side of
bed. [Patient] remains an imminent danger to himself, others
and is gravely disabled at this time.”
Petitioner has submitted more than 200 pages of medical
records in support of his claim of ineffective assistance of counsel.
But missing from the exhibits in support of the petition is any
sworn statement from a mental health expert or one of the
physicians who examined and treated petitioner interpreting the
medical records or explaining their significance in relation to
petitioner’s mental state at the time of the offenses in this case.
In the absence of any such expert opinion, the information in
petitioner’s medical records does not provide exculpatory
evidence that would negate the possibility that petitioner formed
the requisite specific intent for his crimes. In short, petitioner’s
medical records from his Welfare and Institutions Code section
42
5150 hospitalization⎯standing alone⎯do not establish petitioner
was prejudiced by trial counsel’s failure to obtain the medical
records and use them to support unconsciousness, involuntary
intoxication, and other mental-health-related defenses.
In analyzing the issue of prejudice from trial counsel’s
failure to obtain petitioner’s medical records, we must also
consider the evidence presented at trial to support the claim that
petitioner’s mental state prevented him from forming the specific
intent necessary for conviction. In this regard, the medical
records contained no information that was not presented to the
jury at trial:
(1) Manuele testified petitioner was groggy and
unresponsive on the day of the incident, and she believed he was
on drugs. Petitioner admitted using “[a] little marijuana” the day
before the incident, explaining that it usually makes him feel
calm, and the CBD helped to prevent seizures. But on this day,
petitioner described his “general state at the time [as] complete
inebriation/toxicity.” Petitioner testified that throughout the
incident he “was in and out of consciousness,” and only
remembered parts of the events that day. He stated he did not
recognize Terrill as his son, nor did he recognize any of the
responders as police officers or emergency personnel.
(2) Before physically attacking his son, his best friend, and
his mother, petitioner screamed that “everybody has to die,” and
“anyone who doesn’t bow down to the God will be killed.”
According to Terrill, petitioner “sounded like a deranged, crazy
man.”
(3) When the first officer arrived on the scene, petitioner
was yelling that “he was God,” as he was being held down, naked,
on the ground. The officer believed petitioner’s mental state
43
made him a danger to others, and decided to place him on a
mental health hold pursuant to Welfare and Institutions Code
section 5150. Later, as petitioner was kicking and punching
police officers and emergency personnel, he was shouting, “ ‘I’m
God. Bow down to me.’ His eyes were bloodshot, almost like they
were bleeding.”
All of this information supported petitioner’s claim that he
could not and did not form the requisite specific intent for any of
the charged offenses. Nevertheless, the jury still found that
petitioner had the necessary specific intent to convict him of
attempted murder and attempted criminal threats. The jury also
rejected petitioner’s statements that he did not recognize his son
or realize the people he was attacking were police officers.
Accordingly, there appears no reasonable likelihood of a more
favorable outcome had the jury been presented with the
information contained in petitioner’s medical records.
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DISPOSITION
The judgment of conviction is affirmed. The matter is
remanded to the trial court with directions to stay the sentence
on either count 1 or count 2 in accordance with Penal Code
section 654 as amended by Assembly Bill No. 518. On remand,
the trial court may also revisit all of its prior sentencing
decisions, including what term to impose under Penal Code
section 1170, subdivision (b), as amended by Senate Bill No. 567.
The order to show cause is discharged and the petition for a
writ of habeas corpus is denied.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
CHAVEZ, J.
HOFFSTADT, J.
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