Filed 7/5/17 P. v. Acuna CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Sacramento)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

DAVID ACUNA,

Defendant and Appellant.
C080573

(Super. Ct. No. 13F00954)





A jury found defendant David Acuna guilty of first degree murder (Pen. Code, § 187, subd. (a); unless otherwise set forth, statutory references that follow are to the Penal Code) and arson of an inhabited dwelling (§ 451, subd. (b)). The jury also found true the allegations that defendant personally used a deadly and dangerous weapon during the commission of the murder, i.e., a knife (§ 12022, subd. (b)(1)), and used a device designed to accelerate the fire or delay ignition (§ 451.1, subd. (a)(5)). The trial court sentenced defendant to an aggregate term of 39 years to life.
On appeal, defendant contends: (1) the prosecutor engaged in prejudicial misconduct by asking improper questions to the defense expert witness that suggested she violated “the rules of the system” by not producing an expert report; (2) the trial court erred in overruling his objections to the prosecutor’s improper questions; (3) trial counsel rendered ineffective assistance by requesting the trial court not instruct the jury on voluntary intoxication; and (4) the trial court erred in calculating his custody credits. We will modify the judgment to reflect that defendant is awarded 915 days of custody credit. In all other respects, we affirm the judgment.
FACTS AND PROCEEDINGS
In light of the issues raised on appeal, we will not provide a detailed recitation of the underlying facts. Instead, we will only discuss the facts relevant to the resolution of the appeal.
On February 1, 2013, defendant went to Patrick Kendrick’s apartment to sell him a PlayStation 3 and a laptop. Defendant wanted cash for the items but Kendrick wanted to pay him with heroin. After ingesting heroin and spending around seven hours playing video games and watching movies, defendant, again, asked Kendrick to give him cash for the items. Kendrick responded, “ah man, fuck you,” while lifting up his shirt to show defendant he had a gun in his waistband. Kendrick then told defendant, “get the fuck out, nigga, or I’ll get you out.” When Kendrick turned away from defendant and bent down to look for something, defendant grabbed an aluminum baseball bat and struck Kendrick in the head three times, knocking him unconscious. Defendant then dragged Kendrick’s body into the kitchen and repeatedly stabbed him in the back and neck with a knife.
Later that day, defendant returned to Kendrick’s apartment with his girlfriend, Guadalupe Cabrera, and set the apartment on fire using gasoline. While setting the fire, defendant accidentally lit himself on fire, causing severe burns to his hands and face.
During the execution of a search warrant on Cabrera’s apartment, the police found, among other things, mail belonging to defendant and a plastic garbage bag containing blood-stained clothes and shoes, several identification and bank cards belonging to Kendrick, and a kitchen knife. The garbage bag also contained black tubing and a funnel that smelled of gasoline.
A forensic analysis revealed that Kendrick’s DNA was on items found inside the garbage bag, including a pair of bloody jeans, the knife, and shoes. Defendant’s DNA was found on the knife handle and a second pair of jeans. While defendant claimed that Kendrick had threatened him with a gun, no firearms were found inside Kendrick’s apartment or on Kendrick’s body.
When interviewed by the police, defendant initially denied killing Kendrick. However, he eventually admitted to killing Kendrick and burning his apartment to destroy evidence. During the interview, defendant expressed anger toward Kendrick, saying, “[f]uck, that nigga,” and calling him a “dick,” a “sorry ass piece of shit,” and a “fuckin’ piece of shit.” He also acknowledged that his ego played a role in the killing, noting that Kendrick was not a humble guy at all, and that Kendrick was “actin’ like he was the fuckin’ man, . . . like a fuckin’ white horse or somethin’ . . . .” Defendant claimed he “wasn’t . . . that scared” when Kendrick showed him the gun, explaining that if Kendrick would not have said “fuck you,” he probably would have left the apartment without harming him. Defendant also admitted to taking numerous items from Kendrick’s apartment, including Kendrick’s clothes.
A jury found defendant guilty of first degree murder (§ 187, subd. (a)) and arson of an inhabited dwelling (§ 451, subd. (b)). The jury also found true the allegations that defendant personally used a deadly and dangerous weapon during the commission of the murder, i.e., a knife (§ 12022(b)(1)), and used a device designed to accelerate the fire or delay its ignition (§ 451.1, subd. (a)(5)). The trial court sentenced defendant to an aggregate term of 39 years to life. The court ordered defendant to pay various fines and fees, and awarded him 845 days of custody credit.
Defendant filed a timely notice of appeal.
DISCUSSION
I
Prosecutorial Misconduct and Evidentiary Rulings
Defendant contends reversal is warranted because the prosecutor engaged in prejudicial misconduct by asking improper questions of defendant’s expert witness that suggested the witness violated “the rules of the system” by not producing an expert report. Defendant further contends that reversal is warranted because the trial court erred in overruling his objections to the prosecutor’s improper questions.
We review claims of prosecutorial misconduct pursuant to a settled standard. “Under California law, a prosecutor commits reversible misconduct if he or she makes use of ‘deceptive or reprehensible methods’ when attempting to persuade either the trial court or the jury, and it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted. [Citation.] Under the federal Constitution, conduct by a prosecutor that does not result in the denial of the defendant’s specific constitutional rights--such as a comment upon the defendant’s invocation of the right to remain silent--but is otherwise worthy of condemnation, is not a constitutional violation unless the challenged action ‘ “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” ’ ” (People v. Riggs (2008) 44 Cal.4th 248, 298.) In addition, “ ‘a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion--and on the same ground--the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]’ ” (People v. Stanley (2006) 39 Cal.4th 913, 952.) Objection may be excused if it would have been futile or an admonition would not have cured the harm. (See People v. Hill (1998) 17 Cal.4th 800, 820.)
In this case, the defense theory was that defendant acted in self-defense when he killed Kendrick. In support of this theory, defendant called a forensic psychologist, Dr. Lisa Jeko, to testify regarding the effects of traumatic experiences on a person and how those experiences affect a person’s reaction. On cross-examination, the prosecutor questioned Dr. Jeko about whether she had prepared a written report describing the nature of her testimony.
Defendant complains about the following portion of the cross-examination: “[Prosecutor]: Would you agree that when you are appointed by a court, a judge of the superior court, that you are required to write a report? [¶] [Expert]: Yeah. That’s typically the case. [¶] [Prosecutor]: And that report is filed with the court? [¶] [Expert]: Typically the case. Some cases I’ve been asked and because of the timing I don’t write a report, I go straight to the witness stand if it’s been court appointed. I’m thinking of a couple of occasions where that has occurred. It was a timing issue. They needed me fast, so there was no report. They just asked for testimony. [¶] [Prosecutor]: But other than those very limited, we need to get moving on something, there is a report? [¶] [Expert]: Typically so. [¶] [Prosecutor]: And when you’re hired, um, by the prosecution you also write a report because the prosecution has an ethical duty to discover things to the defense? [¶] [Expert]: Correct. [¶] [Prosecutor]: You didn’t write a report in this case? [¶] [Expert]: That’s correct. [¶] [Prosecutor]: And you’ve been retained since last summer, right? [¶] [Expert]: Um, yeah, I believe so. That’s about right, yes. [¶] [Prosecutor]: Any reason why you didn’t write a report in this case? [¶] [Defense counsel]: I’ll object, your Honor, to the relevance of it. [¶] The Court: Overruled. [¶] You can answer. [¶] [Expert]: I wasn’t asked to do an evaluation. [¶] [Prosecutor]: But you know in preparing for testimony sort of the rules of the system, the process, are most lawyers should be on an equal footing in preparing for testimony and potential witnesses, right? [¶] [Expert]: Sure. [¶] [Defense counsel]: I will object as beyond the scope of what her understanding is of both lawyer’s conduct. [¶] The Court: Overruled. [¶] You can answer. [¶] [Expert]: Do you want to ask me the question again? [¶] [Prosecutor]: So your answer is even despite knowing how the system works and both lawyers wanting or needing to be on the same page, because you didn’t evaluate [defendant] you didn’t write a report about what you intended to testify about? [¶] [Expert]: I did not write a psychological evaluation in this case because I did not evaluate him. I didn’t interview him.”
In response to further questioning, Dr. Jeko went on to explain that she provided defense counsel with a written document on May 1, 2015 (i.e., several days after trial commenced but five days before Dr. Jeko testified), which described the nature of her testimony. Dr. Jeko also indicated that she had sent e-mails to defense counsel about the nature of her testimony prior to May 1, 2015.
Outside the presence of the jury, the trial court held a hearing to determine whether a discovery violation had occurred. As relevant here, defense counsel explained that he had not received an expert report from Dr. Jeko; instead, he received a document on May 1, 2015, describing the nature of her testimony, which he provided to the prosecution. Dr. Jeko explained that the e-mails she sent to defense counsel prior to May 1, 2015, did not reflect her final opinions, and that the document she provided defense counsel on May 1, 2015, contained all the information she had previously provided defense counsel. At the conclusion of the hearing, the trial court determined that the prosecution did not need Dr. Jeko’s e-mails.
When the jury returned, the following exchange between the prosecutor and Dr. Jeko occurred: “[Prosecutor]: I think we were talking about the lack of anything in writing until May 1st of this year. Would you agree that is the first time that you reduced to writing your opinions and your intended scope of testimony? [¶] [Expert]: Reduced to my ultimate before I walked into the courtroom, yes, this is the final. [¶] [Prosecutor]: Yes. You had exchanged e-mails with [defense counsel] but nothing final and beneficial? [¶] [Expert]: That’s correct. I finished up on May 1st.”
Preliminarily, defendant has forfeited his claim of misconduct because he did not object to the complained-of questions on the basis of prosecutorial misconduct and did not request an admonition. (People v. Dykes (2009) 46 Cal.4th 731, 763, 766.) Further, defendant failed to show that trial counsel’s omission should be excused because an objection would have been futile or admonition would not have cured the purported harm from the questions.
In any event, defendant’s claim lacks merit. The prosecutor was entitled to inquire about whether Dr. Jeko had prepared a written report or otherwise documented her findings in some other discoverable form. (See People v. Lamb (2006) 136 Cal.App.4th 575, 580 [defense must disclose not only expert’s written report but also any “statements of experts made in connection with the case”].) The prosecutor’s suggestion that Dr. Jeko’s failure to prepare a written report was improper because it prevented him from meaningfully cross-examining her, did not constitute misconduct. Moreover, even assuming the prosecutor’s questions were improper, the prosecutor’s conduct did not amount to prejudicial misconduct under either the federal or state constitution. (See People v. Gionis (1995) 9 Cal.4th 1196, 1218-1219 [prosecutor’s conduct did not “render the trial fundamentally unfair” or amount to “a deceptive or reprehensible method of persuasion,” therefore it “did not constitute misconduct under federal or state standards”].)
We reject defendant’s contention that the trial court erred in overruling his objections to the prosecutor’s questions. According to defendant, reversal is warranted because the trial court allowed the prosecutor to ask Dr. Jeko irrelevant questions.
A judgment shall not be reversed on grounds that evidence has been erroneously admitted unless “[t]here appears of record an objection to . . . the evidence that was timely made and so stated as to make clear the specific ground of the objection . . . .” (Evid. Code, § 353, subd. (a).) “Evidence Code section 210 defines ‘relevant evidence’ as ‘evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.’ ” (People v. Steele (2002) 27 Cal.4th 1230, 1263; italics omitted.)
During the relevant portion of the prosecutor’s cross-examination of Dr. Jeko, defendant interposed two objections. With respect to the first objection, the trial court did not abuse its discretion in overruling defendant’s relevance objection. As discussed above, the prosecutor was entitled to inquire about whether Dr. Jeko had prepared a written report. (See People v. Lamb, supra, 136 Cal.App.4th at p. 580.) With respect to the second objection, defendant did not object on relevance grounds. Instead, trial counsel objected on the ground that the prosecutor sought to illicit testimony from Dr. Jeko that was “beyond the scope of what her understanding is of both lawyer’s conduct.” Therefore, defendant’s claim that the trial court erred in overruling the objection is forfeited on appeal. (People v. Pearson (2013) 56 Cal.4th 393, 438.)
II
Ineffective Assistance
Defendant contends trial counsel rendered ineffective assistance by requesting the trial court not instruct the jury on voluntary intoxication. According to defendant, there was no conceivable tactical reason for counsel’s conduct.
In order to establish a claim of ineffective assistance of counsel, a defendant bears the burden of demonstrating both that counsel’s performance fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694 [80 L.Ed.2d 674, 693]; People v. Ledesma (2006) 39 Cal.4th 641, 745-746.)
A trial court must instruct the jury sua sponte on the general principles of law relevant to the issues raised by the evidence. (People v. Moye (2009) 47 Cal.4th 537, 548.) A trial court is not obligated, however, to instruct sua sponte on voluntary intoxication unless requested by the defendant. (People v. Rundle (2008) 43 Cal.4th 76, 145, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421.) A defendant is entitled to a voluntary intoxication instruction “only when there is substantial evidence of the defendant’s voluntary intoxication and the intoxication affected the defendant’s ‘actual formation of specific intent.’ ” (People v. Williams (1997) 16 Cal.4th 635, 677.) “Substantial evidence is evidence sufficient to ‘deserve consideration by the jury,’ that is, evidence that a reasonable jury could find persuasive.” (People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8.)
We conclude defendant has failed to carry his burden to show ineffective assistance. Prior to instructing the jury, the trial court provided the parties a packet of jury instructions to review, which included an instruction on voluntary intoxication. After reviewing the packet, defense counsel asked the court not to instruct the jury on voluntary intoxication because there was insufficient evidence in the record to support such an instruction. On this record, trial counsel’s performance was not deficient. There was no substantial evidence to show that defendant was voluntarily intoxicated or that his purported state of intoxication prevented him from forming the requisite specific intent. The only evidence of defendant’s intoxication was his statement to police that he used heroin around seven hours before killing Kendrick. There was no third party testimony concerning defendant’s condition at or near the time he killed Kendrick. Nor was there any physical evidence that defendant used alcohol or drugs before killing Kendrick. Under these circumstances, there was insufficient evidence that defendant was intoxicated. (See, e.g., People v. Williams, supra, 16 Cal.4th at p. 677 [scant evidence that defendant was “ ‘doped up’ ” and “ ‘probably spaced out’ ” did not qualify as substantial evidence of intoxication].) Further, even if the record contained substantial evidence of intoxication, there was insufficient evidence that defendant was unable to form the specific intent to commit the crime of first degree murder. (See People v. Marshall (1996) 13 Cal.4th 799, 847-848 [even though defendant was intoxicated, evidence of the effect on his state of mind was lacking].) Accordingly, we reject defendant’s claim of ineffective assistance of counsel.
III
Custody Credit
Defendant contends that the trial court erred in calculating his custody credits. According to defendant, the trial court should have awarded him 915 days of custody credit, not 845 days. The People concede the point, and we accept the People’s concession.
Every person sentenced to prison for criminal conduct is entitled to actual custody credit for time served in custody before sentencing for the same conduct. (§ 2900.5, subd. (a); People v. Buckhalter (2001) 26 Cal.4th 20, 30.) Here, it is undisputed that defendant served 915 days in jail from the date of his arrest (Feb. 11, 2013) to the date of sentencing (Aug. 14, 2015). Accordingly, the trial court erred in awarding defendant 845 days of custody credit. We shall modify the judgment to correct this error.
DISPOSITION
The judgment is modified to reflect that defendant is awarded 915 days of custody credit (§ 2900.5). In all other respects the judgment is affirmed. The trial court shall prepare an amended abstract of judgment and send a copy to the Department of Corrections and Rehabilitation.



HULL , Acting P. J.



We concur:



BUTZ , J.



RENNER , J.