People v. Serna

          OPINION

          RICHLI J.

         Defendant James Christian Serna stabbed the mother of his children to death in their front yard, in full view of multiple witnesses. Thus, the key issue at trial was whether this act constituted first degree murder, second degree murder, voluntary manslaughter, or no crime at all because defendant lacked specific intent.

         A jury found defendant guilty of first degree murder (Pen. Code, § 187, subd. (a)), with an enhancement for personal use of a deadly weapon (Pen. Code, § 12022, subd. (b)(1)). In addition, defendant pleaded guilty to child endangerment. (Pen. Code, § 273a, subd. (a).) As a result, he was sentenced to 26 years to life in prison.

This charge arose out of the fact that two children of defendant and the victim were among those who witnessed the killing.

         Defendant’s sole appellate contention is that his defense counsel rendered constitutionally ineffective assistance in two respects: (1) presenting expert testimony regarding defendant’s “dependent personality trait” and (2) failing to argue that provocation can reduce a murder from first to second degree and failing to request a jury instruction to this effect.

         We find no error. Hence, we will affirm.

         I

         FACTUAL BACKGROUND

         Defendant lived with Melinda Larios, who was his fiancée and the mother of his three children.

         Around December 2007, defendant lost his job, so he and his family left Los Angeles and went to live with Melinda’s cousin, in Coachella. According to the cousin’s wife, defendant “accus[ed Melinda] of cheating a lot.” Once, she noticed bruises on Melinda’s forehead.

         On March 12, 2008, defendant quit his new job. He told Melinda they were moving back to Los Angeles. She did not want to go. They argued; once again, defendant accused her of cheating on him.

         Around 9:00 p.m., the cousin’s wife heard Melinda say, “Please, baby, don’t.” She then saw defendant pushing Melinda into running water in the bathtub. She grabbed her cell phone, ran out into the front yard, and called 911. Meanwhile, Melinda came out of the front door, then fell. Defendant “charg[ed]” out behind her. He got on top of her and started stabbing her.

         Baudelio Quintero, who lived across the street, ran to the scene. He told defendant to get off the victim, but defendant ignored him. Quintero hit defendant in the back and arms with a broomstick until it broke, but defendant just kept stabbing Melinda.

         Quintero hit and kicked defendant while his son ran and got an aluminum baseball bat. At one point, Quintero kicked defendant in the head. Defendant came toward Quintero, knife in hand, screaming “[t]hat he had told them to leave him alone.” Quintero, stepping back, tripped and fell. However, when his son screamed and cursed at defendant, defendant stopped. He went back to the victim and resumed stabbing her.

         Quintero used the bat to hit defendant on the back and side; defendant still kept stabbing the victim. Finally, Quintero hit him in the arm with the bat, which caused him to drop the knife. The victim told defendant that she loved him. Defendant said he loved her and “they were going to be angels.” Minutes later, the police arrived and arrested defendant.

         The victim died of multiple stab wounds. She had a total of 10 stab wounds, not counting numerous “incised wounds” and “poke wounds.” She also showed signs of strangulation. She had “some skull fractures” above her right eye. In addition, she had older, healing bruises all over her body.

         Defendant told police that he thought the victim was cheating on him. He had said to her, if she ever cheated on him, “I’m gonna[] kill you.” During their argument, she told him that she did not love him anymore and she had “found someone else.” At that point, he “snapped.” He told police, “I was like, ... if I can’t have her, nobody else can.” He admitted chasing the victim outside, grabbing her by the hair, and “slamm[ing] her down.” He went back in the house and got two kitchen knives; then he went outside again and started stabbing her. When the police arrived, he ran over to them and said, “I need an ambulance.” He told them he had a knife.

         A test of Melinda’s blood showed that she had been under the influence of methamphetamine when she died.

         The sole witness for the defense was Dr. Michael Kania, an expert forensic psychologist. On direct, Dr. Kania testified that defendant suffered from depression and a dependent personality trait. This caused him “to be very emotionally dependent upon [Melinda], to feel as if he couldn’t live without her....” It could also cause him to “act[] impulsively under... certain... circumstances[.]”

         According to Dr. Kania, Melinda told defendant that she did not love him and she was going to leave him. When he asked if she had another boyfriend, she said, “Maybe I do.” She said “she wanted a man who wouldn’t cry, ” then walked out of the room. “[T]hat particular situation... caused him to overreact....” Defendant felt that his life was ruined and that the lives of his children were ruined. As a result, “he reacted... in a way that was uncharacteristic of him.”

         In Dr. Kania’s opinion, the fact that defendant did not respond to being struck by Quintero indicated that “he was so blinded by his rage and his anger that he wasn’t even fully aware of what he was doing at the time....” That was why he kept stabbing the victim: “[A]n officer who’s being shot at and returns fire[] may not be able to say how many times they shot. Because... they’re caught up in their emotions.” “It was only after the knife was knocked out of his hand that [defendant] had to stop. He couldn’t continue on that kind of behavior that he was involved in, and it was only then that he realized... what he was doing.” At that point, he became himself again. He waited for the police, he admitted stabbing the victim, and he told them to call an ambulance.

         On cross-examination, Dr. Kania testified that defendant was “pathologically jealous.” He admitted that this meant that defendant was “abnormal” and that he had “more than average jealousy.” Defendant’s pathological jealousy made him “misinterpret events in a way that convinced him even more that she was seeing someone else....”

The court reporter rendered this as “admiral, ” but in context, it seems clear that the actual word was “abnormal.”

         II

         INEFFECTIVE ASSISTANCE OF COUNSEL

         Defendant contends that his trial counsel rendered constitutionally ineffective assistance by (1) presenting Dr. Kania’s testimony regarding his mental state, and (2) failing to argue that provocation can reduce a murder from first to second degree or to request a jury instruction to that effect.

         A. General Legal Principles.

         “We apply settled standards: ‘In assessing claims of ineffective assistance of trial counsel, we consider whether counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.] A reviewing court will indulge in a presumption that counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy. Defendant thus bears the burden of establishing constitutionally inadequate assistance of counsel. [Citations.] If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citation.]’ [Citation.]” (People v. Gamache (2010) 48 Cal.4th 347, 391.)

         B. Calling Dr. Kania to Testify.

         Defendant argues that his counsel rendered ineffective assistance by calling Dr. Kania, because Dr. Kania’s testimony undercut any voluntary manslaughter claim by suggesting that defendant responded unreasonably to the victim’s asserted provocation.

         Defense counsel was never asked to explain his decision to call Dr. Kania. “Generally, if it cannot be determined from the record whether counsel had a reasonable strategic basis for acting or failing to act in the manner challenged, a claim of ineffective assistance ‘is more appropriately decided in a habeas corpus proceeding.’ [Citation.]” (People v. Johnson (2009) 47 Cal.4th 668, 684-685.) The only exception would be if “there simply could be no satisfactory explanation. [Citation.]” (People v. Gray (2005) 37 Cal.4th 168, 207.)

         Here, the initial decision to call Dr. Kania could have been reasonable. As the jury was instructed (Judicial Council of Cal. Crim. Jury Instns. (CALCRIM) No. 3428), evidence of defendant’s mental disorder was relevant to show that he did not intend to kill. (Pen. Code, § 28, subd. (a).) Thus, Dr. Kania’s testimony that defendant was not really aware of what he was doing was potentially exculpatory. In addition, his testimony that defendant was prone to act “impulsively” tended to disprove premeditation.

         Dr. Kania’s testimony was also helpful in another way. The single biggest problem for the defense was the excessive violence of defendant’s attack. The fact that he would not stop stabbing the victim — even while Quintero was hitting him with a baseball bat — made him look like a monster. The autopsy physician’s testimony, illustrated by gruesome photographs, detailed the victim’s extensive injuries. Dr. Kania was able to turn this evidence around, at least to some extent, by testifying that what it actually showed was that defendant was not himself. Once the knife was knocked out of his hand, Dr. Kania testified, defendant “reverted back to the sort of person that he had been in the years of that relationship. Someone who was concerned about her well[ ]being, who told... people to call an ambulance....”

         None of this testimony was necessarily inconsistent with defendant’s claim that the crime was merely voluntary manslaughter. “A heat of passion theory of manslaughter has both an objective and a subjective component. [Citations.]” (People v. Moye (2009) 47 Cal.4th 537, 549.) “To satisfy the subjective element of this form of voluntary manslaughter, the accused must be shown to have killed while under ‘the actual influence of a strong passion’ induced by such provocation. [Citation.]” (Id. at p. 550.) To satisfy the objective element, “the requisite provocation must be one that would provoke an ordinarily reasonable person. [Citation.]” (People v. Avila (2009) 46 Cal.4th 680, 706.) Dr. Kania’s testimony tended not only to humanize defendant, but also to show that defendant was subjectively acting under the influence of a strong passion.

         Meanwhile, Dr. Kania’s testimony did not establish that defendant’s response to the victim’s provocation was objectively unreasonable. “[Sufficient] provocation can include the verbal taunts of an unfaithful wife and infidelity.” (People v. Le (2007) 158 Cal.App.4th 516, 528.) Admittedly, as the testimony developed — particularly on cross — it tended to show that defendant was jealous to an abnormal, pathological extent. What Dr. Kania specifically identified as abnormal, however, was defendant’s tendency to suspect the victim of infidelity based on inadequate evidence. He added that the victim had confirmed defendant’s (otherwise abnormal) suspicions by admitting that she had another boyfriend. The jury could still have concluded that this would provoke even an average person.

         Admittedly, the prosecutor could and, in fact, did use Dr. Kania’s cross-examination testimony in closing argument to argue that defendant was abnormal, not only in his suspicions of the victim, but also in the way that he responded to her provocation. Even so, defendant’s psychological condition neither proved nor disproved the objective sufficiency of the provocation. “[T]he fact the defendant... suffers from a mental abnormality or has particular susceptibilities to events is irrelevant in determining whether the claimed provocation was sufficient. [Citation.]” (People v. Oropeza (2007) 151 Cal.App.4th 73, 83.)

         Finally, it is not at all clear that defense counsel should have foreseen Dr. Kania’s cross-examination testimony. Even reasonably competent counsel can be surprised by a witness who “goes sideways” on cross.

         For all these reasons, we cannot conclude that defense counsel’s decision to call Dr. Kania fell below an objective standard of reasonableness under prevailing professional norms.

         C. Failure to Request CALCRIM No. 522.

         Defendant also argues that his counsel rendered ineffective assistance by “failing to... argue that provocation may reduce first degree murder to second degree murder and to request a jury instruction to that effect (CALCRIM No. 522).” (Fn. omitted.)

         The jury was instructed that provocation can reduce murder to voluntary manslaughter. (CALCRIM No. 570.) It was also instructed on second degree murder. (CALCRIM No. 521.) However, it was not given CALCRIM No. 522. CALCRIM No. 522, as it relates to second degree murder, would have stated: “Provocation may reduce a murder from first degree to second degree.... 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.”

         CALCRIM No. 522 is a “pinpoint” instruction, meaning that the trial court is not required to give it except on request. (People v. Rogers (2006) 39 Cal.4th 826, 877-880 [discussing CALJIC No. 8.73, the predecessor of CALCRIM No. 522].)

         Once again, defense counsel was never asked to explain his decision not to request CALCRIM No. 522 or his decision not to make an argument along these lines. Thus, the issue before us is whether there could be a satisfactory explanation for this.

         Defense counsel did not wholly fail to argue second degree murder. He specifically asserted that defendant did not premeditate or deliberate: “He didn’t have any plan. He just acted impulsively. A person deliberates if he or she carefully weighs the considerations for and against his or her choice and knowing the consequences decides to act. We don’t have that here, no. The actions seem like somebody that thought this out and well planned it, no.”

         Admittedly, he discussed provocation exclusively in terms of voluntary manslaughter; he did not argue that provocation could, alternatively, reduce first degree murder to second degree murder. However, this could have been a reasonable tactical decision. The penalty for first degree murder (absent special circumstances) is 25 years to life in prison; the penalty for second degree murder is 15 years to life in prison. (Pen. Code, § 190, subd. (a).) Thus, if defendant was convicted of murder at all, regardless of degree, he was facing the possibility of spending the rest of his life in prison. By contrast, the penalty for voluntary manslaughter is only three, six, or eleven years in prison. (Pen. Code, § 193, subd. (a).) Defendant’s trial counsel could have made a reasonable tactical decision to play provocation down as a basis for second degree murder and to play it up as a basis for voluntary manslaughter.

         Once again, then, we cannot conclude that defense counsel’s decision not to request CALCRIM No. 522 or his decision not to specifically link provocation to premeditation in closing argument fell below an objective standard of reasonableness under prevailing professional norms.

         III

         DISPOSITION

         The judgment is affirmed.

          We concur: RAMIREZ P.J., CODRINGTON J.