Filed 2/17/21 P. v. Kendrick CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Daviann L. Mitchell, Judge. Affirmed in part and reversed in part.

ORIGINAL PROCEEDINGS; petition for writ of habeas corpus, Daviann L. Mitchell, Judge. Petition denied.

Susan Morrow Maxwell, under appointment by the Court of Appeal, for Defendant, Appellant, and Petitioner.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted Tony Kendrick, Jr., of first degree burglary, assault by means of force likely to produce great bodily injury, and dissuading a witness. Kendrick argues that his counsel provided ineffective assistance for failing to properly investigate his case or request an instruction on voluntary intoxication.[1] He also asserts that the sentences for his prior prison terms must be stricken and that the trial court’s imposition of fees, fines, and assessments violated due process. We remand for resentencing but otherwise affirm the judgment.

BACKGROUND

I. Incident and arrest

Kendrick broke into the victim’s apartment and physically assaulted her while her children were home. Kendrick was the victim’s ex-boyfriend and he was upset that she might be with another man. During the break in, Kendrick ripped off the metal security door to the victim’s apartment and then kicked in the front door. The victim called 911 and told the operator that her ex-boyfriend was drunk and trying to break in. Once inside, Kendrick grabbed the victim and threw her to the ground. He then kicked and kneed her in the face. Kendrick only stopped attacking the victim when her daughter hit Kendrick in the nose with a stick.

Kendrick left the victim’s apartment and was detained by police. A Los Angeles County Sheriff deputy responded to the 911 call. When the deputy arrived at the scene, medical personnel were attending to Kendrick’s injuries he had sustained during the break in. The deputy read Kendrick his Miranda[2] rights. Kendrick stated that he understood his rights and did not appear confused. Kendrick admitted that he broke the door open because he thought the victim was inside her apartment with another man. The deputy smelled alcohol emitting from Kendrick’s breath and body, but she did not perform any field sobriety tests because Kendrick did not appear intoxicated.[3]

After the arrest, Kendrick was treated at a hospital for his injuries for approximately 30 minutes. Thereafter, Kendrick was booked into custody. The deputy testified that Kendrick did not receive additional medical treatment but admitted that she would have no way of knowing if Kendrick received additional medical treatment after he was booked into custody.

II. Trial and sentence

Kendrick was charged with first degree residential burglary (Pen. Code,[4] § 459; count 1), and assault by means likely to produce great bodily injury (§ 245, subd. (a)(4); count 2). It was further alleged that Kendrick suffered two prior serious felony convictions (§§ 667, subds. (a)(1), (b)–(i), 1170.12, subds. (a)–(d)), and served five prior prison terms. The prosecution amended the information to add count 3, dissuading a witness (§ 136.1, subd. (b)) after Kendrick contacted the victim from jail and asked her not to testify at his trial.

Kendrick’s first trial ended after the trial court declared a mistrial when Kendrick’s public defender declared a conflict of interest.

During pretrial discussions before Kendrick’s second trial, the trial court denied the prosecution’s request to exclude on relevance grounds any argument by Kendrick that he could not have formed the requisite intent to commit burglary due to his intoxication. Defense counsel acknowledged that he did not have an expert who could testify as to how Kendrick’s intoxication precluded him from forming the specific intent required to commit a burglary. Nevertheless, the trial court allowed defense counsel to elicit testimony from the deputy and the victim related to Kendrick’s claim of intoxication and argue to the jury that Kendrick was “out of his mind that night” and that he “had no idea what he was doing.”

At the second trial, evidence of Kendrick’s intoxication included the deputy’s testimony that Kendrick smelled like alcohol, the victim’s testimony that Kendrick had a history of drinking excessively and was drunk on the night of the incident, the 911 call wherein the victim stated Kendrick was drunk, and jail call wherein the victim told Kendrick he was “trippin” and acting like “a whole different person.”

In his closing argument, defense counsel discussed the evidence that Kendrick was intoxicated on the night of the incident. He told the jury that, although that evidence could not be used as a defense to assault, the jury could use the evidence to conclude that Kendrick did not act with the specific intent necessary to commit a burglary. Although defense counsel argued the point, he did not request a voluntary intoxication instruction and the trial court did not instruct the jury on that defense. However, the trial court instructed the jury that voluntary intoxication was not a defense to assault.

Kendrick was found guilty as charged. In a bifurcated proceeding, the prosecutor moved to dismiss two of the priors and the trial court found true the remaining prior convictions. Kendrick was sentenced to 24 years in state prison.

Kendrick appealed and petitioned for a writ of habeas corpus.

DISCUSSION

I. Petition for writ of habeas corpus

Kendrick’s petition for a writ of habeas corpus argues that his counsel was ineffective for failing to properly investigate his case. Specifically, Kendrick claims that his counsel never obtained his medical records from the period after his booking, which would have shown that Kendrick was treated for five days at the hospital for alcohol intoxication and opioid withdrawal. With this evidence, Kendrick asserts his trial counsel could have rebutted the deputy’s testimony that Kendrick received limited medical treatment after his arrest for injuries sustained during the break in and bolstered his voluntary intoxication defense.

Kendrick attached the subject records to his petition. Kendrick claims these records show: (1) he was admitted a second time to the hospital after his arrest, and was discharged five days later; (2) he had difficulty walking and had an altered mental state upon this second admittance and that, upon discharge, he was able to stand, walk a few steps, and his balance and mental state improved; (3) his discharge summary included a final diagnosis of alcohol intoxication and opioid overdose and withdrawal; (4) his urine toxicology screen tested positive for cannabinoids and methamphetamines; and (5) his blood alcohol level was .111 more than 14 hours after his arrest. However, Kendrick’s petition did not contain a declaration from a doctor or medical expert to interpret his medical records. It also did not include a declaration from his trial counsel explaining why he did not obtain the records. The petition did, however, include a declaration from Kendrick’s appellate counsel, stating that Kendrick’s trial counsel told her that he “did not have any medical report on Mr. Kendrick” and “it obviously was never ordered by myself or his previous attorney.”

“To establish ineffective assistance of counsel, a defendant must show that (1) counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient performance was prejudicial.” (People v. Scott (1997) 15 Cal.4th 1188, 1211; Strickland v. Washington (1984) 466 U.S. 668, 687.) Prejudice is shown when there is a reasonable probability that but for counsel’s error the result of the proceeding would have been different. “ ‘A reasonable probability is [one] . . . sufficient to undermine confidence in the outcome.’ ” (Scott, at pp. 1211–1212.)

We must defer to trial counsel’s reasonable tactical decisions and indulge the “ ‘ “strong presumption that counsel’s conduct falls within the wide range of . . . professional assistance.” ’ ” (People v. Weaver (2001) 26 Cal.4th 876, 925.) Courts should not “second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight.” (People v. Scott, supra, 15 Cal.4th at p. 1212.) “Tactical errors are generally not deemed reversible, and counsel’s decisionmaking must be evaluated in the context of the available facts.” (People v. Bolin (1998) 18 Cal.4th 297, 333.) We must be mindful that competent criminal defense attorneys will not always defend the same client in the same way. (Strickland v. Washington, supra, 466 U.S. at p. 689.)

To establish ineffectiveness of counsel for failure to investigate, the appellant must show that counsel failed to make particular investigations and that the omissions resulted in the denial of or inadequate presentation of a potentially meritorious defense. (People v. Williams (1988) 44 Cal.3d 883, 936.) In particular, the appellant must show that counsel knew or should have known that further investigation was necessary and establish the nature and relevance of the evidence that counsel failed to present or discover. The failure to discover or present the evidence will be considered prejudicial only if it might have caused a reasonable jury to conclude that the defendant lacked the mental capacity that constituted an element of the charged offense. (Id. at p. 937.) Finally, it must also be shown that the omission was not attributable to a tactical decision which a reasonably competent, experienced criminal defense attorney would make. (In re Sixto (1989) 48 Cal.3d 1247, 1257.)

While Kendrick’s medical records appear to be additional evidence of his intoxication on the night of the incident, his petition fails to show how the medical records would have bolstered his voluntary intoxication defense or rebutted the deputy’s testimony.

A defendant is entitled to instruction on voluntary intoxication only when there is substantial evidence the intoxication affected the defendant’s actual formation of specific intent. (People v. Roldan (2005) 35 Cal.4th 646, 715.) Evidence that the defendant ingested drugs or alcohol by itself is insufficient to warrant the instruction. (People v. Ivans (1992) 2 Cal.App.4th 1654, 1661.) There must also be evidence of the effect of the defendant’s drug consumption on the defendant’s state of mind. (People v. Marshall (1996) 13 Cal.4th 799, 848.)

Notably absent from Kendrick’s petition is a declaration from a medical expert to interpret the meaning of the medical records. Likewise, before trial, Kendrick’s trial counsel indicated that he did not have an expert to support a voluntary intoxication defense.[5] Without expert testimony, the medical records could not be introduced and Kendrick would have still had to rely on the same evidence that was presented at trial, mainly, the testimony from the victim and the deputy of their personal observations. Had defense counsel obtained Kendrick’s medical records, they would not have caused a reasonable jury to conclude that Kendrick lacked the specific intent to commit a burglary.

Further, the medical records would not necessarily rebut the deputy’s testimony that Kendrick only received limited medical treatment after being arrested because the deputy acknowledged that she was unaware if Kendrick received additional treatment after he was booked.

II. Voluntary intoxication instruction

On direct appeal, Kendrick makes a related ineffective assistance of counsel claim, arguing that his trial counsel was ineffective for failing to request an instruction on voluntary intoxication as a defense to burglary. We disagree.

There was some evidence that Kendrick was intoxicated when he broke into the victim’s apartment and assaulted her. The victim told the 911 operator that Kendrick was drunk and, in the jail calls between her and Kendrick, she said that Kendrick was acting differently that night. The deputy smelled alcohol emitting from Kendrick’s body although he did not appear intoxicated and was responsive to her questioning. However, beyond the direct personal observations of the deputy and the victim, the evidence of the effect of defendant’s alcohol consumption on his state of mind is lacking. There was no evidence that Kendrick’s intoxication rose to the level where he did not form the intent required to commit burglary. As stated above, to warrant the instruction, evidence of the defendant’s intoxication is not enough. There must also be evidence that the level of intoxication prevented defendant from forming specific intent. That evidence was lacking.

Moreover, under the circumstances, even if Kendrick’s counsel should have requested a voluntary intoxication instruction, there was no prejudice. During closing argument, Kendrick’s counsel argued that Kendrick’s intoxication was a defense to the burglary charge. “I’ll start with burglary and, that is, there’s no doubt that . . . Kendrick came in without approval of the owner of the apartment, so to speak. However, we always get—we get back to that intent when he entered. And I think—as I pointed out—and it’s also pointed out in your jury instructions that voluntary intoxication is not a defense to the assault. However, it is, in effect, whether or not there was an intent coming to commit the burglary.” The trial court did not instruct the jury to disregard the evidence of Kendrick’s intoxication. Rather, the trial court instructed the jury on the intent or mental state necessary to find Kendrick guilty of burglary and to decide whether that fact had “been proved based on all of the evidence,” including evidence that Kendrick smelled of alcohol and appeared drunk. The only limitation on the intoxication evidence concerned whether he committed the assault. Thus, it is clear the jury rejected the defense’s theory that Kendrick’s voluntary intoxication prevented him from forming the intent necessary to commit a burglary. An additional instruction on voluntary intoxication would not have altered the outcome.

III. Prior enhancements

Kendrick’s second contention is that Senate Bill No. 136 requires reversal of the three one-year prior prison term enhancements pursuant to section 667.5, subdivision (b).

Effective January 1, 2020, Senate Bill No. 136 (2019–2020 Reg. Sess.) amended section 667.5, subdivision (b), to provide that the one-year prior prison term enhancement only applies when there is a prior separate prison term for a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). (Stats. 2019, ch. 590, § 1.) “By eliminating section 667.5, subdivision (b) enhancements for all prior prison terms except those for sexually violent offenses, the Legislature clearly expressed its intent in Senate Bill No. 136 . . . to reduce or mitigate the punishment for prior prison terms for offenses other than sexually violent offenses.” (People v. Jennings (2019) 42 Cal.App.5th 664, 682.)

Because the judgment in the current case is not yet final, Senate Bill No. 136 applies here. (See People v. Winn (2020) 44 Cal.App.5th 859, 872–873.) Kendrick’s prior prison term enhancements were based on convictions for burglary (§ 459) and receiving stolen property (§ 496, subd. (a)). Neither crime was a sexually violent offense (Welf. & Inst. Code, § 6600, subd. (b)), therefore, the 3 one-year enhancements should be stricken.

The parties agree that we should remand the case for resentencing consistent with People v. Burbine (2003) 106 Cal.App.4th 1250, 1258.

Because we remand the matter for resentencing, we need not decide whether Kendrick is entitled to an ability to pay hearing under People v. Dueñas (2019) 30 Cal.App.5th 1157. Kendrick may raise any challenge to the fees or fines at the resentencing hearing.

DISPOSITION

The judgment is modified to strike the three one-year enhancements imposed under Penal Code section 667.5, subdivision (b). The sentence is vacated and the matter is remanded for resentencing. In all other respects, the judgment is affirmed. The petition for writ of habeas corpus is denied.

NOT TO BE PUBLISHED.

DHANIDINA, J.

We concur:

EDMON, P. J.

LAVIN, J.

[1] Kendrick has also petitioned for a writ of habeas corpus on the ground that his counsel failed to investigate his case and asked that we consider his petition along with his direct appeal.

[2] Miranda v. Arizona (1966) 384 U.S. 436.

[3] During the deputy’s testimony, a juror asked the trial court if there was evidence of Kendrick’s blood alcohol level on the night of the incident, including breathalyzer test results or a blood or urine screening.

[4] All further statutory references are to the Penal Code unless otherwise indicated.

[5] During pretrial discussions before the first trial, Kendrick’s prior counsel indicated that she knew he had been treated for drug and alcohol intoxication for several days after he was booked. Nevertheless, she also decided to elicit testimony from the victim and the deputy about their observations of Kendrick that night.