Filed 7/31/14 P. v. Moore CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E057475
v. (Super.Ct.No. FVA901440)
LOUIS JEFFREY MOORE, JR., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes,
Judge. Affirmed.
Suzanne G. Wrubel, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Senior Assistant Attorney General, and Charles C. Ragland
and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
1 After defendant Louis Jeffrey Moore, Jr. and his girlfriend got into a drunken
argument, he shot her three times, killing her. When the police interviewed him, he
admitted knowingly shooting her. At trial, however, he testified that he blacked out;
when he came to, he was partially blind. He heard what he thought were “attack[ers]”
moving around in the kitchen. He fired blindly, intending only to scare them away.
A jury found defendant guilty of first degree murder (Pen. Code, § 187, subd. (a),
189) with an enhancement for causing death by personally discharging a firearm (Pen.
Code, § 12022.53, subd. (d)). Defendant was sentenced to a total of 50 years to life in
prison.
In this appeal, defendant contends:
1. The jury instructions erroneously failed to define second degree murder.
2. The jury instructions erroneously suggested that, for provocation to reduce first
degree murder to second degree murder, it must meet a reasonable person standard.
3. The trial court erred by admitting defendant’s ex-wife’s testimony about one
particular prior threat that he made to her.
4. The trial court erred by denying defendant’s post-trial Marsden motion to the
extent that it was based on defense counsel’s failure to obtain a psychological evaluation.
We find no error. Hence, we will affirm.
2 I
FACTUAL BACKGROUND
A. Third-Party Witnesses’ Accounts.
As of August 2009, defendant’s girlfriend, Jillian White, was living with him off
and on. They occupied an upstairs apartment in a fourplex in Fontana.
White drank every day. Sometimes when she drank, her “demeanor” got “nasty.”
Defendant also drank occasionally. Neighbors often heard them arguing.
There were complaints about White banging on the door, trying to get defendant to
let her in. On one occasion, paramedics were seen helping White downstairs; she had
bruises on her arm. On two occasions, the police were called; the first time, they asked
White to leave, and the second time, they arrested her. One neighbor overheard White
saying, “I want to kill my boyfriend by throwing him down a flight of stairs[.]”
Margaret Delgado and her husband Freddie Delgado owned the fourplex and
lived there as well. On the night of August 26-27, 2009, they were hanging out in the
garage, directly under defendant’s apartment. Around midnight, they heard what
sounded like marbles falling onto defendant’s tile floor. Freddie heard a “thump.”
Margaret heard a sound like furniture being dragged.
Margaret phoned defendant and asked “Is everything okay up there?” Defendant
sounded a “little bit” drunk. He said, “Yeah, everything is okay, we’re just sitting here,
[we] had an argument . . . .” He then volunteered that he did not have any guns, knives,
or weapons, and he was not a violent person. He added that White might be pregnant and
3 “was having some little issues.” White could be heard in the background, talking in a
loud voice.
Stephanie Sierra and her daughter, Sara Pena, lived in the apartment next to
defendant’s. They heard defendant and White arguing. At one point, Pena heard White
yell, “Oh my gosh[,] what are you doing?” Then both Sierra and Pena heard three
gunshots. The first two shots were close together, but there was a brief pause before the
final shot.
Margaret, Sierra, and a third neighbor all heard something fall onto the dirt below
defendant’s balcony. Sierra made out two separate sounds — a sound like a duffel bag
falling, followed by a sound like a person jumping over the balcony.
When the police arrived, they found White’s body lying on the kitchen floor. She
had been struck by three bullets. One entered her back on an upward trajectory; one
entered her back on a steep downward trajectory; and one entered her front left shoulder.
Two of the three bullets caused internal bleeding, which in turn caused unconsciousness
and death. White’s blood alcohol level at the time of death was 0.32 percent.
A rifle was lying on the floor in the middle of the living room. It held one spent
casing in the chamber and two unfired rounds in the magazine tube. There were two
more spent casings on the floor.
A police officer who was familiar with that make and model of rifle testified that it
has a safety. Moreover, it has to be cycled manually using a lever. The lever ejects any
spent casing and moves a fresh round from the magazine tube into the chamber. Thus,
4 “[i]t takes a deliberate action every time that you fire . . . .” The officer demonstrated the
lever action for the jury.
Around 12:30 p.m., the police spotted defendant walking north on Market Street in
Riverside. They followed him; when they caught up with him, he was sitting on a bench
in front of City Hall. They promptly arrested him.
B. Defendant’s Statement to the Police.
Defendant was Mirandized and gave police the following statement.
At the time of the shooting, defendant was drunk. He had had four or five shots of
vodka, half a pint of cognac, and three beers. He was also smoking marijuana. White,
too, was drunk. Defendant believed she was an alcoholic.
They got into an argument. At one point, defendant told White to stop drinking
and smoking because she was pregnant (or so she had told him).1 He grabbed her
cigarette. White said she was going to call the police. Defendant picked up her cell
phone and threw it at her. However, the battery was missing. She accused defendant of
taking it. She started screaming, “[G]ive me my battery or I’m gonna call the police.”
Defendant said, “[L]et me give [you] a reason to call them.”
Defendant went and got his rifle from his bedroom. He did not remember loading
it. As he came back around the corner, White was facing him; he cocked the rifle and
1 Defendant had had a vasectomy. He claimed that he nevertheless believed that White was pregnant and that he was the father, because he had heard that “after 10 years or so it can go back together.” The autopsy physician did not testify as to whether White was actually pregnant or not.
5 pulled the trigger. He did not remember how many times he fired. He saw White fall;
then he left. He walked from Fontana to Riverside. When he saw police activity, he
knew they were looking for him, so he went to City Hall and waited for them to find him.
C. Defendant’s Testimony at Trial.
Defendant gave the following account at trial.
About a week before the shooting, White told him that “some guy named John . . .
was going to kill [defendant] because [defendant] took his girlfriend.”
On the day of the shooting, both defendant and White were drinking. When White
drank, she wanted to argue and fight. White said she was going to call John “and tell him
to come over and teach [defendant] a lesson.”
Defendant drank so much that he blacked out. When he woke up again, he was
partially blind. He could not see anything at eye level; if he looked down, he could see
“the ground, maybe three feet ahead . . . .” He concluded that he had been “attacked.”
He heard what sounded like “more than one [person]” moving around in the kitchen. He
got his rifle, which was already loaded, and stood in the doorway. He was thinking, “I
can scare them out of the house.”
According to defendant, he did not have to turn off the safety; “when you grab the
weapon, . . . [the safety] automatically goes off.” He cocked the hammer and fired. He
did not aim. He did not remember how many times he fired.
He could not see White until she “dropped into [his] vision . . . .” He checked her
for breathing and a pulse, but found neither. He left the apartment. The next thing he
6 knew, he was walking into Riverside. After seeing himself on the news on television, he
went to City Hall to turn himself in.
D. Prior “Bad Acts” Evidence.
Kimberly White was defendant’s ex-girlfriend; she had lived with him from 2000
to 2005. She testified that he was usually “high or drunk or both.” He was verbally
abusive “all the time.” He would “get into altercations with people unnecessarily.”
In May 2005, during an argument, defendant grabbed her and “slammed” her to
the floor “with force,” hurting her ear. He punched the floor. Next, he pulled two phones
out of the wall. When she called 911 on a cell phone, he ran away.
Calynn Taylor Moore was defendant’s ex-wife. They were married from 1993 to
2002.
In January 2000, he got angry with her and told her to stop the car she was driving
and let him out. After getting out, he punched the driver’s side door of the car.
In October 2000, while speaking to her “in a hostile manner,” he punched the sofa
she was sitting on.
In Spring 2001, after cursing at her and calling her names, he said, “I would bust
you in your MF-ing mouth if it wasn’t for the fact that I know you would blow my brains
out.”
After the marriage ended, Taylor Moore attempted to get a restraining order
against defendant. While in court, the judge asked him to identify her; he replied that “he
wouldn’t recognize [her] unless [she] had a bullet hole.” Defendant “rant[ed]” for
7 awhile, then left the courtroom. About an hour later, three bailiffs escorted her to her car.
She testified, “By then, I had fear, big fear, that I would be snipered by [defendant].”
II
JURY INSTRUCTIONS ON SECOND DEGREE MURDER
Defendant contends that the standard jury instructions, as they stood at the time of
trial, failed to define second degree murder.
A. Additional Factual and Procedural Background.
With regard to first and second degree murder, the jury was instructed with
CALCRIM Nos. 520, 521, and 522.
CALCRIM No. 520, as relevant here, informed the jury that murder requires
express or implied malice; it defined both concepts. It then provided:
“If you decide that the defendant committed murder, you must then decide
whether it is murder of the first or second degree.”
CALCRIM No. 521, as relevant here, defined first degree murder. It informed the
jury that first degree murder requires deliberation and premeditation, which it defined. It
also provided:
“The People have the burden of proving beyond a reasonable doubt that the killing
was first degree murder, rather than a lesser crime. If the People have not met this
burden, you must find the defendant not guilty of first degree murder.”
8 CALCRIM No. 522 provided:
“Provocation may reduce [a] murder from first degree to second degree and may
reduce a murder to manslaughter. The weight and significance of the provocation, if any,
are for you to decide.
“If you conclude that the defendant committed murder but was provoked, consider
the provocation in deciding whether the crime was first or second degree murder. Also,
consider the provocation in deciding whether the defendant committed murder or
manslaughter.”
During its deliberations, the jury sent out the following question:
“We are seeking clarification on the requirements to move from murder one to
murder two. If we are not unanimous on murder one, do we move to murder two?”
The trial court responded:
“For definitions of murder and degrees of murder[,] please refer back to
CALCRIM 500, 520, 521 & 522.
“I cannot tell you the order in which to consider the possible verdicts (see
CALCRIM 640). You may consider each crime in whichever order you choose.
However, I can only accept a guilty verdict of a lesser included offense if you have
unanimously acquitted the defendant on the greater offense.”
B. Analysis.
Defendant argues that, while the instructions stated that a murder in the absence of
deliberation and premeditation is not first degree murder, they failed to state that it is
9 second degree murder. As he points out, after the trial in this case, CALCRIM Nos. 520
and 521 were amended to make this explicit.
“When considering a claim of instructional error, we view the challenged
instruction in the context of the instructions as a whole and the trial record to determine
whether there is a reasonable likelihood the jury applied the instruction in an
impermissible manner. [Citation.]” (People v. Houston (2012) 54 Cal.4th 1186, 1229.)
CALCRIM No. 520 stated that, if defendant killed another person with malice
aforethought, he was guilty of murder. It also stated that murder was either of the first or
second degree. CALCRIM No. 521 then stated that, if the People proved that defendant
was guilty of murder, and also proved that defendant acted “willfully, deliberately, and
with premeditation,” defendant was guilty of first degree murder. It necessarily followed
that, if the People proved that defendant was guilty of murder, but failed to prove that
defendant acted “willfully, deliberately, and with premeditation,” defendant was guilty of
second degree murder.
Would it be better to have stated this explicitly? Sure. Which is undoubtedly why
the Judicial Council subsequently amended the instructions. Nevertheless, the
instructions as given were accurate and complete. Their only flaw was that they
conveyed this one particular point by necessary implication, rather than explicitly.
Hence, this case comes within the rule that “[g]enerally, a party may not complain on
appeal that an instruction correct in law and responsive to the evidence was too general or
10 incomplete unless the party has requested appropriate clarifying or amplifying language.
[Citation.]” (People v. Castaneda (2011) 51 Cal.4th 1292, 1348.)
Defendant also notes that CALCRIM No. 522, dealing with provocation, referred
explicitly to second degree murder. He argues that the jury would have concluded that
the only way it could find second degree murder was by also finding provocation. Again,
however, this overlooks the necessary implication of CALCRIM No. 521. CALCRIM
No. 521 made it clear that first degree murder requires premeditation and deliberation.
Thus, the jury would have understood CALCRIM No. 522 to mean that provocation can
reduce murder from first degree to second degree because it shows lack of premeditation
and deliberation.
III
JURY INSTRUCTIONS ON PROVOCATION
Defendant contends that the standard jury instructions erroneously suggested that
provocation must be reasonable to reduce first degree murder to second degree murder.
As already mentioned (see part II, ante), the jury was instructed on provocation
using CALCRIM No. 522, which stated, as relevant here:
“Provocation may reduce [a] murder from first degree to second degree and may
reduce a murder to manslaughter.”
The jury was also instructed on voluntary manslaughter using CALCRIM No. 570,
which stated, as relevant here:
11 “A killing that would otherwise be murder is reduced to voluntary manslaughter if
the defendant killed someone because of a sudden quarrel or in the heat of passion.
“The defendant killed someone because of a sudden quarrel or in the heat of
passion if:
“1. The defendant was provoked;
“2. As a result of the provocation, the defendant acted rashly and under the
influence of intense emotion that obscured his reasoning or judgment;
“AND
“3. The provocation would have caused a person of average disposition to act
rashly and without due deliberation, that is, from passion rather than from judgment. [¶]
. . . [¶] . . .
“It is not enough that the defendant simply was provoked. The defendant is not
allowed to set up his own standard of conduct. You must decide whether the defendant
was provoked and whether the provocation was sufficient. In deciding whether the
provocation was sufficient, consider whether a person of average disposition, in the same
situation and knowing the same facts, would have reacted from passion rather than from
judgment. [¶] . . .
“The People have the burden of proving beyond a reasonable doubt that the
defendant did not kill as the result of a sudden quarrel or in the heat of passion. If the
People have not met this burden, you must find the defendant not guilty of murder.”
(Italics added.)
12 B. Analysis.
Provocation is an element of “heat of passion” voluntary manslaughter. “‘[T]he
factor which distinguishes the “heat of passion” form of voluntary manslaughter from
murder is provocation . . . .’ [Citation.]” (People v. Moye (2009) 47 Cal.4th 537, 549–
550.)
To reduce a murder to voluntary manslaughter, the provocation must meet an
objective standard of reasonableness. “Objectively, the victim’s conduct must have been
sufficiently provocative to cause an ordinary person of average disposition to act rashly
or without due deliberation and reflection. [Citation.]” (People v. Enraca (2012) 53
Cal.4th 735, 759.)
However, it has long been held that “the ‘“existence of provocation which is not
‘adequate’ to reduce the class of the offense [from murder to manslaughter] may
nevertheless raise a reasonable doubt that the defendant formed the intent to kill upon,
and carried it out after, deliberation and premeditation”’ — an inquiry relevant to
determining whether the offense is premeditated murder in the first degree, or
unpremeditated murder in the second degree. [Citation.]” (People v. Carasi (2008) 44
Cal.4th 1263, 1306.)
In other words, the provocation necessary to reduce first degree murder to second
degree murder does not have to pass an objective test. (People v. Fitzpatrick (1992) 2
Cal.App.4th 1285, 1295–1296.) “The issue is whether the provocation precluded the
13 defendant from deliberating. [Citation.] This requires a determination of the defendant’s
subjective state.” (Id. at p. 1295.)
Defendant notes that CALCRIM No. 570 specifically provided that provocation
must meet a reasonable person standard for the purpose of reducing murder to
manslaughter. Defendant therefore argues that the jury would have concluded that
provocation must likewise meet a reasonable person standard for the purpose of reducing
first degree murder to second degree murder.
Recently, in People v. Jones (2014) 223 Cal.App.4th 995, the court rejected an
identical argument. It stated: “[T]he instructions are correct. They accurately inform the
jury what is required for first degree murder, and that if the defendant’s action was in fact
the result of provocation, that level of crime was not committed. CALCRIM Nos. 521
and 522, taken together, informed jurors that ‘provocation . . . can give rise to a rash,
impulsive decision, and this in turn shows no premeditation and deliberation.’ [Citation.]
As the jury also was instructed, a reduction of murder to voluntary manslaughter requires
more. It is here, and only here, that the jury is instructed that provocation alone is not
enough for the reduction; the provocation must be sufficient to cause a person of average
disposition in the same situation, knowing the same facts, to have reacted from passion
rather than judgment.” (Id. at p. 1001.) We likewise reject defendant’s contention.
14 IV
THE ADMISSION OF DEFENDANT’S EX-WIFE’S TESTIMONY
ABOUT DEFENDANT’S CONDUCT AT A RESTRAINING ORDER HEARING
Defendant contends that the trial court erred by admitting his ex-wife’s testimony
about a restraining order hearing after their divorce. As noted earlier, defendant said at
the hearing that “he wouldn’t recognize [her] unless [she] had a bullet hole.” She also
testified that, when she left, she was afraid that he would “sniper[]” her.
The prosecution filed a motion in limine to introduce evidence of prior “uncharged
acts” that defendant had committed against his ex-girlfriend and his ex-wife.
Regarding the ex-wife, the prosecution stated: “She will . . . testify that during the
marriage, there w[ere] repeated verbal threats against her by the defendant and he . . .
attempted to strike her on more than one occasion. She believes that defendant was
capable of killing her. After the divorce, the defendant continued to make threats and
harassing phone calls.”
During the hearing on the motion, defense counsel argued that the ex-wife’s
statements were not trustworthy.
The trial court indicated that it was “concerned” about the ex-wife’s testimony
because it was “remote.” It was also concerned about letting her testify that she was
afraid of defendant unless she explained why she was afraid.
15 It ruled that it would not admit evidence of any incidents more than 10 years
before the crime. Otherwise, however, it ruled that the ex-wife’s testimony was not more
prejudicial than probative.
We begin by pointing out what defendant is not arguing. First, defendant is not
challenging any of his ex-girlfriend’s testimony. Second, he is not challenging any of his
ex-wife’s testimony other than her testimony about the restraining order hearing. Third,
he does not dispute that her testimony about the restraining order hearing was generally
admissible under Evidence Code section 1101, subdivision (b) and/or section 1109. His
sole argument is that his ex-wife’s testimony about the restraining order hearing should
have been excluded under Evidence Code section 352.
Defense counsel forfeited this argument, however, by failing to object to this
particular evidence on this particular ground. (Evid. Code, § 353, subd. (a).) Admittedly,
the trial court did consider admissibility under Evidence Code section 352 sua sponte. At
that point, however, it had to consider this issue in light of the prosecution’s offer of
proof, which referred only to “threats.” It had no opportunity to consider defendant’s
present contention about the unique prejudicial nature and lack of probative value of this
particular testimony. (See People v. Solomon (2010) 49 Cal.4th 792, 821 [“A motion in
limine can preserve an appellate claim, so long as the party objected to the specific
evidence on the specific ground urged on appeal at a time when the court could determine
16 the evidentiary question in the proper context.”].) Defense counsel could have objected
when the testimony came out during trial, but did not.
Defendant argues that any such forfeiture constituted ineffective assistance. “The
decision whether to object to the admission of evidence is ‘inherently tactical,’ and a
failure to object will rarely reflect deficient performance by counsel. [Citation.]”
(People v. Castaneda, supra, 51 Cal.4th at p. 1335.) Here, defense counsel was not
necessarily aware of the evidence in advance;2 that would explain why he did not
specifically object to it during the motion in limine. Later, when it came out at trial, he
“could . . . have decided that objecting would focus the jury’s attention on the threat
incident in ways that would not be helpful to the defense.” (People v. Harris (2008) 43
Cal.4th 1269, 1290.)
Even if not forfeited, the contention lacks merit. Defendant argues that the
evidence lacked probative value because it was not similar to the charged crimes.
However, it was similar enough to have probative value, because it involved a threat to
shoot an intimate partner. As defendant acknowledges, he admitted shooting White, so
the key issue in this case was his mental state when he shot. The fact that, in the past,
when angry with an intimate partner, he had entertained thoughts of shooting her was
2 It is not clear that even the prosecutor was aware that defendant’s ex-wife could offer this testimony. He seems to have expected her to testify to threats that defendant made out of court, during a conversation or conversations about child custody issues. After the ex-wife testified to the incident at the restraining order hearing instead, he seemed surprised; he asked, “[Was there] any other type of incident where he made a threat like that . . . ?” She replied, “Nothing comes to memory at this time.”
17 significantly probative evidence that he shot White intentionally in this case.
Defendant’s ex-wife’s fear that defendant would “sniper[]” her was also significantly
probative, because it meant that someone who knew defendant well understood his threat
to be serious.
Defendant also argues that the evidence was “inflammatory.” However, it
involved a mere threat. The jury heard evidence that, in the current case, defendant not
only threatened White, but shot her repeatedly, killing her. Thus, the prior incident pales
when compared to the current offense. Moreover, there was evidence of several incidents
in which defendant verbally threatened and/or physically lashed out at his ex-wife and his
ex-girlfriend. Against this background, evidence of a single additional threat was not
particularly prejudicial.
The fact that the trial court was not required to exclude the evidence affords a
second reason for concluding that defense counsel did not render ineffective assistance —
his failure to object was not objectively unreasonable. And the fact that the evidence was
not particularly prejudicial affords yet a third reason — defendant cannot show that the
asserted ineffective assistance had any effect on the outcome.
Finally, because the evidence was not particularly prejudicial, even assuming the
trial court did err, the error was harmless.
18 V
DEFENDANT’S POST-TRIAL MARSDEN MOTION
BASED ON FAILURE TO OBTAIN A PSYCHOLOGICAL EVALUATION
Defendant contends that the trial court erred by denying his post-trial Marsden
motion to the extent that it was based on failure to obtain a psychological evaluation.3
Defendant was represented at trial by an appointed member of the conflicts panel.
Before sentencing, when the probation officer interviewed defendant, defendant
said he wanted a Marsden hearing. As a result, on the date set for sentencing, the trial
court held a Marsden hearing in camera.4
The trial court allowed defendant to state all of the reasons why he believed he had
received ineffective assistance of counsel. One of the many reasons he stated was that
defense counsel had never requested a psychological evaluation of him.
3 A “Marsden motion” is a motion to discharge existing appointed counsel, based on ineffective assistance, and to appoint new counsel. (People v. Marsden (1970) 2 Cal.3d 118.) 4 The reporter’s transcript of the Marsden hearing was filed as confidential. (See Cal. Rules of Court, rule 8.45(b).)
In his opening brief, defendant discussed the events at the Marsden hearing and cited the confidential transcript. Defendant did not seek to file the brief under seal (Cal. Rules of Court, rule 47(b)(3)) and did not oppose the People’s request for a copy of the confidential transcript (Cal. Rules of Court, rule 8.47(b)(2)(C).) We therefore deem defendant to have waived any claim of attorney-client privilege or work product protection for the contents of the transcript. (Evid. Code, § 912, subd. (a); DeLuca v. State Fish Co., Inc. (2013) 217 Cal.App.4th 671, 688.)
19 The trial court then allowed defense counsel to respond. Regarding a
psychological evaluation, he stated, “[T]here were too many downside risks involved
there.” He explained that his “greatest fear” was that a psychologist might conclude that
defendant was malingering. He noted that, despite defendant’s claim to have had a
blackout, defendant had been able to remember some events before, during, and after the
shooting. He added: “[Defendant] knows more about that incident than what he’s
saying. There’s times that he’s telling me what happened. There’s times that he does not
remember. However, when there’s something that he deems helpful to him, he
remembers it and he could tell it to me in very vivid, articulate detail. . . . [T]hen at other
times he does not remember, and he vacillates . . . on these statements at different times.”
Defense counsel also stated: “And when the People, the prosecutor, if they were
to get ahold of that information, it is devastating to the defense. [¶] [M]y experience has
been any time a mental health expert comes in and mentions the word ‘malingering,’ it’s
devastating. It’s taken as, ‘Oh, he’s exaggerating,’ ‘He’s not being truthful,’ ‘He’s trying
to use this process to help himself,’ and it does not bode well. I did not feel it was worth
the risk.”
Finally, defense counsel was concerned that, if defendant did talk to a
psychologist, there might be an issue regarding “false evidence.”
20 When defense counsel was done, the trial court allowed defendant to respond.
Defendant did not say anything further about a psychological evaluation.5
The trial court denied the motion.
“When a defendant seeks to obtain a new court-appointed counsel on the basis of
inadequate representation, the court must permit her to explain the basis of her contention
and to relate specific instances of inadequate performance. The court must appoint a new
attorney if the record clearly shows the current attorney is not providing adequate
representation or that defendant and counsel have such an irreconcilable conflict that
ineffective representation is likely to result. [Citations.]” (People v. Rodriguez (2014) 58
Cal.4th 587, 623.)
“[A] defendant is entitled to appointment of substitute counsel upon a proper
showing posttrial . . . as well as pretrial.” (People v. Smith (1993) 6 Cal.4th 684, 692.)
“A defendant is entitled to competent representation at all times, including presentation
of a new trial motion . . . . Thus, when a defendant satisfies the trial court that adequate
grounds exist, substitute counsel should be appointed. Substitute counsel could then
5 The numerous other grounds that defendant offered for his Marsden motion are not relevant to this appeal. However, we commend the trial judge (the Hon. Steven A. Mapes) for his careful and methodical consideration of all of those grounds. The hearing was “the very model of a modern [Marsden hearing].” (Gilbert & Sullivan, The Major General’s Song (1879).)
21 investigate a possible . . . motion for new trial based upon alleged ineffective assistance
of counsel.” (Id. at pp. 695-696.)
“If the court holds an adequate hearing, its ruling is reviewed for abuse of
discretion. [Citation.]” (People v. Rodriguez, supra, 58 Cal.4th at p. 623.)
Defendant argues that defense counsel’s claimed reason for not obtaining a
psychological evaluation was unsound, because, even if the psychological evaluation
showed malingering, the prosecution could not obtain it in discovery. Under Penal Code
section 1054.3, subdivision (a)(1), the defense is not required to provide an expert’s
report in discovery unless it intends to call the expert and/or introduce the report at trial.
(Sandeffer v. Superior Court (1993) 18 Cal.App.4th 672, 678.)
This overlooks the fact that, if the psychological evaluation did show malingering,
it simply would not be helpful to the defense. If, on the other hand, the psychological
report did not show malingering, then once defense counsel declared his intent to call the
psychologist as a witness, the prosecution would become entitled to have its own
psychologist examine defendant. (Pen. Code, § 1054.3, subd. (b)(1).) Defense counsel
could reasonably be concerned that, even if his own expert found no malingering, a
prosecution expert might.
Defendant also criticizes defense counsel for relying on his own nonexpert opinion
that defendant was malingering. However, his explanation for suspecting malingering
was reasonable, and the trial court could reasonably accept it. Even though he was not a
psychologist, he had to make the strategy call one way or another, and in his opinion as
22 an attorney, it turned in part on how likely it was that a psychologist would find that
defendant was malingering. This is the kind of decision that a nonexpert often has to
make in deciding whether to call in an expert.
Defendant argues that a psychological evaluation was relevant not only to
unconsciousness, but also to intoxication; an expert could have testified that defendant
was, in fact, intoxicated, and could have testified about the effects of intoxication on
deliberation and premeditation. It is not clear, however, what an expert could have
added. If the facts were as defendant claimed — i.e., he had consumed a half pint of
cognac, four or five vodka shots, and two or three beers, along with marijuana — it did
not take an expert to conclude that he was intoxicated. It also did not take an expert to
conclude that he would have had a reduced ability to deliberate and premeditate. Finally,
an expert would have no magic way of knowing if defendant’s claim was, in fact, true.6
Defendant relies on People v. Frierson (1979) 25 Cal.3d 142, which held that trial
counsel was ineffective in failing to consult an expert about whether the defendant’s use
of PCP and Quaalude would support a defense of diminished capacity. (Id. at pp. 159-
164.) The court cautioned, however, “We should not be understood as requiring that trial
counsel must seek psychiatric or expert advice in every case wherein drug intoxication is
a possible defense.” (Id. at p. 164.) It emphasized that diminished capacity was the “sole
6 During the Marsden hearing, defense counsel revealed that defendant’s blood had been tested 12 hours after the shooting, and that the test showed a blood alcohol level of zero.
23 defense” (id. at p. 159), so that the failure to present expert testimony was effectively a
failure to present a defense at all. (Id. at p. 163.) Moreover, the ineffective assistance
claim was supported by the declaration of an expert psychologist to the effect that PCP
intoxication could mimic schizophrenia. (Id. at p. 159.) This was testimony that went
beyond common knowledge. Indeed, the court stated, “such evidence could not be
effectively presented through lay witnesses.” (Id. at p. 164.) Here, intoxication was not
the sole defense and it could be presented adequately through testimony by lay witnesses.
We therefore conclude that the trial court did not abuse its discretion by denying
defendant’s Marsden motion.
VI
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI J.
We concur:
RAMIREZ P. J.
MILLER J.