P. v. Shattuck

Filed 2/23/07 P. v. Shattuck CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Bernardino County, Arthur A. Harrison, Judge. Affirmed.

A jury convicted Joshua Wayne Shattuck of sodomy (Pen. Code,^[1] 286, subd. (c)(2)) (count 1); forced oral copulation ( 288a, subd. (c)(2)) (count 2); torture ( 206) (count 3); assault with a deadly weapon ( 245, subd. (a)(1)) (count 4); corporal injury to a cohabitant ( 273.5, subd. (a)) (count 5); and possession of methamphetamine (Health & Saf. Code,  11377, subd. (a)) (count 6). The jury also found that Shattuck committed torture ( 667.61, subd. (d)(3)) in connection with counts 1 and 2. The trial court sentenced Shattuck to prison for 25 years to life.

Shattuck contends that (1) the trial court committed prejudicial error by excluding evidence that was relevant to his defense, and (2) defense counsel provided ineffective assistance in failing to request that the trial court instruct the jury regarding voluntary intoxication.

As we will explain, we conclude that Shattuck's contentions lack merit. Accordingly, we affirm.

I

FACTUAL AND PROCEDURAL BACKGROUND

Starting in June 2003, Shattuck and Angela shared a house as roommates. They had sporadic sexual contact until around the end of 2003, when they developed a more serious romantic relationship. According to Angela, in February or March 2004 she and Shattuck started to spend less time with each other, although around that time she also accepted his marriage proposal.

Beginning in the evening of April 27, 2004, Shattuck and Angela started arguing about Shattuck's suspicion that Angela had a sexual relationship with one of his relatives.^[2] The argument continued through the night into the next morning. Early in the morning, Shattuck lightly poked Angela's chest with a kitchen knife several times, and told her that he would stop if she told him the truth about the sexual relationship with his relative. Angela admitted to a sexual relationship with the relative.

Next, before the sun rose, Shattuck and Angela drove to visit the girlfriend of Shattuck's relative, and Angela told the girlfriend that she had slept with Shattuck's relative. Angela and Shattuck then returned home. When Angela was walking toward the garage to go to work, Shattuck smashed food into her face, saying that she would have to change and would not be able to go to work right away.

When Angela went upstairs to change her clothes, Shattuck followed her into her bedroom. Shattuck struck Angela's face repeatedly and called her a bitch, whore and slut. Shattuck told Angela she would not be able to go to work because of the bruises on her face. Shattuck then followed Angela into another bedroom and started to hit her on the arms, chest, face and head for approximately 10 minutes. Angela was able to get away into another bedroom, but Shattuck followed Angela, threw her down on the bed, and pulled her sweater's hood over her face and tightened the strings on the hood. After Angela got out of that position, Shattuck told Angela to have sex with him, and she said "no." Shattuck told her that if she complied, he would stop hitting her. Shattuck then forced Angela to have anal sex with him for approximately 10 minutes, causing physical pain to Angela.

After the sex act ended, Shattuck told Angela to clean herself, and she went into the restroom. Shattuck came into the restroom with a taser gun. He repeatedly shocked Angela on the arm, ankle and neck with the taser gun. He also shocked Angela on the chest, right above her heart, as he wondered aloud how many times he could shock her before her heart stopped. Shattuck stopped shocking Angela and told her to go into his bedroom. Angela sat on the floor and Shattuck told her she was a bad person and deserved everything that was happening to her.

Angela said she was thirsty and wanted to go downstairs to get a drink of water. Shattuck allowed her to do so, but as Angela was descending the stairs, Shattuck commented that it would be easy to push her down the stairs. Shattuck then laughed and walked downstairs in front of Angela. Once downstairs, Angela went from the kitchen into the garage, but Shattuck pulled her back before she could get outside the garage, hit her for trying to leave, and led her back into the house.

Shattuck then asked Angela questions about having slept with his relative. When Angela gave an answer Shattuck didn't like, he would hit her in the upper body. He also shocked her with the taser gun several more times. Shattuck demanded to see a journal that Angela kept, and he hit her as she tried to look for it.

While he was downstairs with Angela, Shattuck smoked a glass pipe containing drugs and blew the smoke in Angela's face. Angela did not know what kind of drug Shattuck was smoking. Angela described Shattuck's eyes as almost empty after he smoked the drugs, and Shattuck told her that the drug made him feel colder and more separate from what was happening.

Shattuck told Angela that she had a choice to let him do one of several things to her, after which the ordeal would be over. She could be burned with the pipe, have her tongue cut out, have the pipe stuck inside her, or have her face disfigured. Shattuck laughed when Angela refused.

Shattuck then told Angela to go back upstairs to his bedroom. While upstairs, Shattuck hit Angela and told her to perform oral sex on him. She complied. Shattuck told Angela that as long as she continued to perform oral sex, he would not hit her. Shattuck eventually told Angela to stop performing oral sex and resumed asking her questions, hitting her and shocking her with the taser gun. Shattuck then choked Angela by squeezing his hands around her throat, which made her feel sleepy.

Shattuck's grandmother then telephoned. Shattuck told his grandmother that he was hitting Angela. Shattuck gave Angela the phone. She told Shattuck's grandmother that she was not "okay," but, because she did not want to further enrage Shattuck, Angela did not ask Shattuck's grandmother to come to the house to intervene.

After the telephone conversation ended, Shattuck told Angela that he was having a girl come over to "finish [her] off." Shattuck said that he wanted to kill Angela, but God would not let him. At some point during the ordeal, Shattuck stated that he might attach a car battery to a metal chair and have Angela sit down in it. Angela was also aware that Shattuck had two guns in the house.

In the early afternoon, Shattuck's uncle showed up at the house. Shattuck told Angela it was her lucky day and that she could leave. She walked out of the house and drove off in her car.

Angela drove to the school where her mother worked and showed her mother the bruises under her shirt. Her mother drove Angela to the San Bernardino Police Department. Then, at the request of the police, Angela was examined at a hospital by registered nurse Ann Kristine Rowney.

Rowney observed significant injuries. Angela had swelling to the face and genitals, tearing in the anal area, and bruises on her arms, her upper abdomen, her inner thighs, and both breasts. Angela's left breast was swollen with blood to almost twice the size of her right breast. The bruising to Angela's breast was the worst case that Rowney had ever observed, and Angela was given an IV because she had lost so much blood into the swollen breast.

That evening, police officers went to the house where Shattuck and Angela lived. They encountered Shattuck coming out of the house with 1.5 grams of methamphetamine in his pocket. The police officers found a taser gun and two firearms inside the house.

Shattuck was charged with sodomy ( 286, subd. (c)(2)) (count 1); forced oral copulation ( 288a, subd. (c)(2)) (count 2); torture ( 206) (count 3); assault with a deadly weapon ( 245, subd. (a)(1)) (count 4); corporal injury to a cohabitant ( 273.5, subd. (a)) (count 5); and possession of methamphetamine (Health & Saf. Code,  11377, subd. (a)) (count 6). With regard to counts 1 and 2, the information alleged that Shattuck was subject to the life sentence provided for in section 667.61, subdivision (a) because he committed aggravated mayhem or torture ( 667.61, subd. (d)(3)), inflicted great bodily injury ( 667.61, subd. (e)(3), 12022.53, 12022.7, 12022.8), and personally used a deadly weapon or firearm ( 667.61, subd. (e)(4), 12022, 12022.3, 12022.5, 12022.53) in connection with those offenses.

At trial, Shattuck admitted that he hit Angela during the incident, but he described their altercation as "mutual combat," during which Angela also struck him. He stated that he never shocked Angela with a taser gun. Shattuck admitted that he engaged in oral and anal sex with Angela on that day, but he claimed that she consented to the activity. According to Shattuck, he did not do anything to prevent Angela from leaving the house. He admitted to having used methamphetamine on April 28, 2004, but claimed that the drug generally calmed him down and made him a more passive and a nicer person.

The jury convicted Shattuck on all counts, and with respect to counts 1 and 2 made a true finding that Shattuck committed torture. ( 667.61, subd. (d)(3).) The trial court sentenced Shattuck to prison for 25 years to life.

II

DISCUSSION

A. Shattuck's Challenges to the Trial Court's Evidentiary Rulings

Shattuck challenges four of the trial court's evidentiary rulings in which it excluded certain evidence on the basis of relevancy.

We apply an abuse of discretion standard when reviewing a trial court's exclusion of evidence for lack of relevance. (See People v. Waidla (2000) 22 Cal.4th 690, 717-718 ["an appellate court . . . examines for abuse of discretion a decision on admissibility that turns on the relevance of the evidence in question. That is because it so examines the underlying determination as to relevance itself," citations omitted].) An abuse of discretion is defined as " 'an arbitrary, capricious or patently absurd [exercise] that resulted in a manifest miscarriage of justice.' " (People v. Sanders (1995) 11 Cal.4th 475, 512 (Sanders).) "[A]ll exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue." (People v. Russel (1968) 69 Cal.2d 187, 195.)

1. Exclusion of Evidence as to WhetherShattuck Was Crying During the 7:00 a.m. Telephone Conversation with His Grandmother

Shattuck's first contention is that the trial court prejudicially erred in excluding evidence about whether he was crying during certain telephone conversations with his grandmother.

Shattuck's grandmother testified that she had five telephone conversations with Shattuck on the day of the crimes  at 6:00 a.m., 7:00 a.m., 10:00 a.m., 12:00 p.m. and 3:00 p.m. Describing Shattuck's demeanor during the conversations, Shattuck's grandmother testified that Shattuck was upset "first thing in the morning" when she spoke to him, but was not as upset later in the day. She explained that by "upset," she meant that he was hurt.

During recross-examination, defense counsel asked Shattuck's grandmother if she heard Shattuck crying. She answered, "[Shattuck] was crying a little bit." The exchange then occurred:

"Q: During the phone conversations?

"A: Yes.

"Q: Do you recall which ones? Was it all of them or - -

"A: Um, I would say the first one that morning, when he called me at 6:00, he was crying.

"Q: What about the next one, around about 7:00?"

At that point, the prosecutor objected on the ground that the question was asked and answered and that it exceeded the scope of recross-examination. The trial court sustained the objection, adding, "It's also not relevant."

Shattuck argues that the trial court erred in sustaining the objection. He argues that the question was not asked and answered, did not exceed the scope of recross-examination, and was relevant.

Without deciding whether the question was asked and answered or beyond the scope of recross-examination, we conclude that the trial court was within its discretion to conclude that the evidence was not relevant and to exclude the evidence on that basis.

Evidence Code section 210 states: " 'Relevant evidence' means 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." "The test of relevance is whether the evidence tends 'logically, naturally, and by reasonable inference' to establish material facts such as identity, intent or motive." (People v. Garceau (1993) 6 Cal.4th 140, 177.) " '[T]he trial court is vested with wide discretion in determining relevance.' " (Sanders, supra, 11 Cal.4th at p. 512.)

Shattuck argues that evidence that he was crying during the 7:00 a.m. conversation with his grandmother would have been relevant to negate specific intent. He points out that his conviction for torture (count 3) and the true finding that he committed torture in connection with counts 1 and 2 required the jury to find that he had the specific "intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose." ( 206; see also  667.61, subd. (d)(3).) Shattuck argues that the "description of [his] demeanor as 'hurt' rather than angry logically relates to whether he harbored the specific intent that is a necessary element the prosecution had to prove."

We conclude that the trial court did not abuse its discretion in excluding the evidence. The fact that Shattuck was crying at 7:00 a.m. would not logically tend to prove that Shattuck lacked the specific intent to torture Angela. Instead, such evidence would simply suggest that Shattuck still felt hurt by Angela at 7:00 a.m. A person who is hurt can form the specific intent to cause cruel and unusual pain for the purpose of taking revenge. Thus, evidence that Shattuck was crying at 7:00 a.m. would not tend to establish that Shattuck lacked specific intent.

Moreover, even if the trial court did err in excluding the evidence, we would conclude that the error was harmless under People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).^[3] Under Watson, we assess whether "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (Ibid.) Applying that standard, we conclude that it is not reasonably probable that the jury would have reached a different verdict if it had information that Shattuck was crying at 7:00 a.m., as well as at 6:00 a.m. Other testimony from Shattuck's grandmother already established that Shattuck was generally in a saddened state of mind in the morning. Further, as we have explained, that fact that Shattuck was crying would not tend to disprove that he formed the specific intent to torture Angela. Thus, even if the evidence was marginally relevant, it would not create a reasonable probability of a different verdict.^[4]

2. Exclusion of Evidence About WhetherShattuck Retaliated in a Past Incident when Angela Hit Him

Shattuck next contends that the trial court prejudicially erred in excluding evidence about his reaction on a former occasion when Angela struck him during an argument.

Shattuck testified that on other occasions when he and Angela argued, she would shove and hit him. He testified that on such one occasion, she locked him in the garage and when he came back in the house, she hit him in the face and the ear, causing him to lose 80 percent of his hearing for two months.

With respect to that incident, defense counsel asked Shattuck, "Did you do anything to her in retaliation?" The trial court interposed its own objection to the question and asked, "How is this relevant?" Defense counsel explained, "It's relevant in terms of explaining the relationship between the two of them, which goes to explaining the context of the events of April 27th." The trial court sustained its own relevancy objection.

Shattuck contends that the trial court erred because the question was relevant. He argues that "the question relates directly to [his] reaction to a dispute with Angela." According to Shattuck, "[h]is past reaction to Angela striking him is relevant to his perception of her conduct during the current argument and how he intended to respond. By logical inference, it is relevant to the disputed issue of the specific intent he harbored at the time of the current offenses." He states that, further, "[b]y not allowing [Shattuck] to testify as to his past reaction to Angela striking him, the jury was deprived of evidence to [Shattuck's] perception of the current argument and, thus relevant on the issue of [his] intent."

Applying the rule that the " '[t]he trial court is vested with wide discretion in determining relevance,' " we conclude that the trial court was within its discretion to exclude the evidence as irrelevant. (Sanders, supra, 11 Cal.4th at p. 512.) The trial court could reasonably conclude that Shattuck's reaction to a past physical blow by Angela would not, as Shattuck claims, tend to prove whether he had the specific intent to cause cruel or extreme pain and suffering to Angela during a later confrontation.

Moreover, even if we were to conclude that the trial court erred, the error would be harmless under Watson, supra, 46 Cal.2d 818, 836. Shattuck admitted that on April 28, 2004, he did hit Angela, and he and Angela did engage in what he described as "mutual combat." Further, the jury had before it graphic evidence of Angela's severe injuries. Thus, because of the irrefutable evidence of the violence that occurred on April 28, 2004, even if the jury had been permitted to hear evidence that Shattuck refrained from inflicting injury on Angela in past confrontations, we conclude that had the evidence been admitted, a different verdict would not be reasonably probable.

3. Exclusion of Evidence AboutWho Initiated Sexual Activity After Past Arguments

Shattuck contends that the trial court prejudicially erred in excluding evidence about who initiated sex on past occasions after he and Angela argued.

Shattuck testified that during his relationship with Angela, they would have sex upon the resolution of an argument. Defense counsel asked, "And in the past, when that sort of thing happened, was it always you initiating sexual activity, always her initiating sexual activity, or something that is mutually agreed upon?" The prosecutor objected on relevancy grounds, and the trial court sustained the objection.

According to Shattuck, the trial court erred in excluding the evidence because "whether Angela initiated consensual sexual activity with [Shattuck] at the conclusion of past arguments relates directly to [Shattuck's] good-faith belief in her consent on the date of the charged offenses despite what might have been the absence of positive cooperation." Shattuck argues that "[t]he jury was not given a complete factual basis for deciding the issue of consent and the issue of [Shattuck's] good faith reasonable belief that Angela consented because the jury did not hear evidence about who initiated sexual acts on prior occasions."

We agree that the evidence was relevant. The charges of sodomy and forced oral copulation both required a finding that the sexual activity was performed against Angela's will. (See  286, subd. (c)(2), 288a, subd. (c)(2).) Evidence that Angela and Shattuck commonly engaged in sexual activity after arguments and that the sexual activity was initiated by Shattuck would have a tendency to prove (1) that during the April 28, 2004 confrontation Angela voluntarily actually did submit to Shattuck's advances as she had done at the conclusion of prior arguments, or (2) that Shattuck reasonably understood Angela to be voluntarily submitting to his advances based on past experience. Indeed, as Shattuck points out, the jury was instructed, pursuant to CALJIC No. 10.61.1, that evidence that Shattuck and Angela engaged in consensual sexual acts in the past could be considered "for the purpose of tending to show that Angela consented to the sexual acts charged in this case, or that the defendant had a good faith reasonable belief that Angela consented to the sexual acts." The excluded evidence would have been directly relevant to that instruction. Accordingly, because the evidence was relevant, the trial court abused its discretion by excluding it on the basis of relevancy.

We conclude, however, that the error was harmless under Watson, supra, 46 Cal.2d 818, 836.

First, Angela's severe injuries, including the tearing to her anus, constitute strong evidence that Shattuck exercised force and intimidation during the incident, strongly corroborating Angela's testimony that she performed the sex acts against her will and submitted only because of threats of violence.

Second, because of the violence and physical injury that occurred to Angela on April 28, 2004, Angela's consent to Shattuck's sexual advances after past arguments is not strongly probative of Shattuck's belief that she was consenting on April 28, 2004. Even if Shattuck had experience with Angela submitting to his sexual advances after past arguments, a jury likely would not conclude that Shattuck believed, after his violent conduct on April 28, 2004, that Angela was voluntarily consenting, as she had done in the past under different circumstances.

Third, we find it significant that the objection was sustained during Shattuck's testimony. Although the evidence might have been indirect evidence of whether Angela consented to the sex acts on April 28, 2004, the jury heard Shattuck testify to more direct evidence of whether Angela consented on that day: he testified that she consented to both acts and that he did not force her. The jury rejected Shattuck's testimony on that issue, impliedly finding that Shattuck lacked credibility. In our view, it is not reasonably probable that, having rejected Shattuck's direct testimony about Angela's consent, the jury would have credited and given weight to Shattuck's indirect testimony relevant to the same issue.

For all of these reasons, we do not find it reasonably probable that the jury would have reached a different verdict if it heard Shattuck testify about who initiated sex after past arguments.

4. Exclusion of Evidence Relating to the Possible Bias of theExamining Nurse

Shattuck contends that the trial court prejudicially erred in excluding testimony that might have revealed bias in Rowney, the examining nurse who testified about Angela's injuries.

Rowney testified that she works as a sexual assault nurse examiner for Law Enforcement Medical Services, performing acute forensic examinations on sexual assault victims. She explained that the majority of her cases arise when law enforcement agencies contact her to conduct a sexual assault exam. She testified that in Angela's case, she was contacted by the San Bernardino Police Department to conduct an exam.

On cross-examination, Rowney testified that she is a co-owner of Law Enforcement Medical Services. Defense counsel asked, "And you have a contract, then, with various law enforcement agencies to render certain services; is that correct?" After an affirmative response from Rowney, defense counsel asked, "And what agencies do you have contracts with?" The trial court interposed it's own objection to the question, stating, "It's not relevant counsel, move on."

Shattuck argues that the trial court erred because "[t]he compensation paid or to be paid to an expert witness by the party calling the expert is a proper subject of inquiry . . . . It follows that the source of the compensation is relevant and, in this case, the jury was entitled to know if the prosecution's expert had a financial interest beyond her contract to review evidence in this case. The extent to which she may have been under contract with various law enforcement and prosecutorial agencies involved in this case is a proper line of inquiry because it relates to her possible bias in rendering an opinion favorable to the agencies that are paying her." (Citations omitted.)

We conclude that the question was not relevant insofar as it sought to elicit evidence beyond the facts that were already established at trial, i.e., that Rowney (1) is the co-owner of a company that contracts with law enforcement agencies, and (2) that in this case she was working under a contract with the San Bernardino Police Department to conduct a sexual assault examine of Angela. Having established that Rowney worked for law enforcement agencies generally and was doing so in this case, a listing of other specific law enforcement agencies with which Rowney contracts would not have added any meaningful information relevant to assessing Rowney's bias. Accordingly, we conclude that the trial court did not abuse its discretion in sustaining the objection.

In addition, even if the ruling was erroneous, it was not prejudicial under Watson, supra, 46 Cal.2d 818, 836. Rowney's testimony was significant primarily because she authenticated the photographs of Angela's injuries. The graphic photographs had powerful probative value regardless of the jury's assessment of Rowney's credibility. Therefore, a different verdict would not have been reasonably probable had the jury heard evidence relevant to Rowney's possible bias in favor of law enforcement.

B. Ineffective Assistance of Counsel

Shattuck argues that he received ineffective assistance of counsel because defense counsel failed to request that the jury be instructed on voluntary intoxication as relevant to the issue of specific intent.^[5] He argues, "This instructional omission prevented the jury from having a legal basis of applying evidence of [Shattuck's] use of methamphetamine to the specific intent that the prosecution was required to prove."

We begin by summarizing the standards applicable to a claim of ineffective assistance of counsel. "Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel." (People v. Ledesma (1987) 43 Cal.3d 171, 215.) That right "entitles the defendant not to some bare assistance but rather to effective assistance." (Ibid.) A defendant claiming ineffective assistance of counsel has the burden to show: (1) counsel's performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms; and (2) the deficient performance resulted in prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687; Ledesma, at pp. 216, 218.) Prejudice is shown when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, at p. 694.)

Further, "[r]eviewing courts reverse convictions on direct appeal on the ground of incompetence of counsel only if the record on appeal demonstrates there could be no rational tactical purpose for counsel's omissions." (People v. Lucas (1995) 12 Cal.4th 415, 442 (Lucas); see also People v. Anderson (2001) 25 Cal.4th 543, 569 ["When a claim of ineffective assistance is made on direct appeal, and the record does not show the reason for counsel's challenged actions or omissions, the conviction must be affirmed unless there could be no satisfactory explanation"].)

Here, we determine that the record does not demonstrate that there could be no rational tactical reason for defense counsel's failure to request the voluntary intoxication instruction. On the contrary, as we will explain, we perceive at least two possible tactical reasons for defense counsel's decision not to request such an instruction.

First, " '[a] trial judge must only give those instructions which are supported by substantial evidence' " and " '[a] party is not entitled to an instruction on a theory for which there is no supporting evidence.' " (People v. Roldan (2005) 35 Cal.4th 646, 715.) "[A] defendant is entitled to an instruction on voluntary intoxication 'only when there is substantial evidence of the defendant's voluntary intoxication and the intoxication affected the defendant's "actual formation of specific intent." ' " (Ibid., italics added.) Without evidence of the effect of a drug on the formation of specific intent, mere evidence that the defendant used a drug does not provide substantial evidence to support a voluntary intoxication instruction. (See People v. Williams (1988) 45 Cal.3d 1268, 1312.) Here, defense counsel could have made a tactical judgment that the evidence of the effect of Shattuck's use of methamphetamine on his ability to form specific intent was so minimal as not to warrant the request for an instruction.^[6]

Second, defense counsel could have made a tactical judgment that a defense of voluntarily intoxication was inconsistent with and would have diluted the main defense theory that the sex between Angela and Shattuck was consensual and that the physical harm inflicted by Shattuck on Angela was not the result of an intent to torture, but the result of a mutually combative confrontation in which Angela was also the aggressor.

Defense counsel may in fact have had other tactical reasons for failing to request an instruction on voluntary intoxication. We need not speculate further, however. Shattuck's claim for ineffective assistance fails because based on the possible tactical considerations we have identified, the "record does not demonstrate there could be no rational tactical reason" for the challenged actions. (Lucas, supra, 12 Cal.4th at p. 442.) Thus, Shattuck's contentions are more properly raised in a petition for habeas corpus and must be rejected on direct appeal. (People v. Mayfield (1993) 5 Cal.4th 142, 188 ["tactical choices presented . . . on a silent record" are "better evaluated by way of a petition for writ of habeas corpus" and will be rejected on direct appeal].)

DISPOSITION

The judgment is affirmed.

IRION, J.

WE CONCUR:

BENKE, Acting P. J.

O'ROURKE, J.

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^[1] Unless otherwise specified, all further statutory references are to the Penal Code.

^[2] We base our narrative of the events on Angela's testimony.

^[3] Shattuck argues that the harmless error standard applicable to constitutional errors (see Chapman v. California (1967) 386 U.S. 18) should apply in this case because the purported evidentiary errors, in combination, deprived him of his Fourteenth Amendment due process rights and cumulatively denied him " 'a fair opportunity to defend against the [state's] accusations.' " We disagree. The "application of ordinary rules of evidence generally does not impermissibly infringe on an accused's right to present a defense" (People v. Rodriguez (1999) 20 Cal.4th 1, 10, fn. 2) and, thus, "the mere erroneous exercise of discretion under such 'normal' rules does not implicate the federal Constitution" (People v. Cudjo (1993) 6 Cal.4th 585, 611). Further, the asserted evidentiary errors do not rise to the level of a due process violation. "Although the complete exclusion of evidence intended to establish an accused's defense may impair his or her right to due process of law, the exclusion of defense evidence on a minor or subsidiary point does not interfere with that constitutional right." (People v. Cunningham (2001) 25 Cal.4th 926, 999, italics added.) Here, the purported evidentiary errors relate to minor or subsidiary factual issues.

^[4] On the issue of prejudice, we note that defense counsel apparently also did not view as crucial the information of whether Shattuck was crying during the 7:00 a.m. telephone conversation, because when given a chance during Shattuck's testimony to elicit testimony on that issue, defense counsel did not do so. Specifically, Shattuck testified that he was crying during the 6:00 a.m. conversation and then described the substance of the 7:00 a.m. telephone call, but defense counsel did not follow up and ask Shattuck whether he was crying during the 7:00 a.m. conversation.

^[5] Specifically, Shattuck contends that defense counsel should have requested that the jury be instructed with CALJIC Nos. 4.21 and 4.21.1, both of which state that when specific intent is an element of the crime, the jury may consider the defendant's intoxication in deciding whether the defendant had the required specific intent.

^[6] The sole testimony from Shattuck regarding the effect of the drug was that it calmed him down and made him more passive. Shattuck told Angela during the incident that the drug made him feel colder and more separate from what was happening, and she observed that his eyes seemed almost empty.