P. v. Soderstrom

Filed 6/20/07 P. v. Soderstrom CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from a judgment of the Superior Court of Orange County, James P. Marion, Judge. Affirmed.

Original proceedings; petition for a writ of habeas corpus, after judgment of the Superior Court of Orange County. Writ denied.

Sally P. Brajevich, and Leonard J. Klaif, under appointment by the Court of Appeal, and Randy Lee Soderstrom, in propria persona, for Defendant, Petitioner and Appellant.

Edmund G. Brown, Jr. and Bill Lockyer, Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Randy Lee Soderstrom appeals from the judgment sending him to prison for a total of 12 years after a jury found him guilty of attempted voluntary manslaughter, attempted first degree robbery, assault with a firearm and residential burglary. (See Pen. Code, 192, 211, 213, 245, subd. (b), 459, 664.)[1] All of these counts were enhanced because he personally used a firearm in the commission of the offenses. (See 12022.5, subd. (a), 12022.53, subd. (b).) The jury acquitted him of attempted murder and four counts of attempted robbery; and one count of making a criminal threat was dismissed before any evidence was presented to the jury.

On appeal, Soderstrom contends the trial court erred in its jury instructions regarding the mental intent required for voluntary manslaughter. He then argues the evidence is insufficient to sustain the conviction for attempted voluntary manslaughter, and the trial court erred when it denied him trial transcripts to prepare his motions for new trial and to relieve appointed counsel. (See People v. Marsden (1970) 2 Cal.3d 118; 1179, 1200, 1201, subd. (b), 1202.) We affirm the judgment.

In the 310-page petition for writ of habeas corpus, which we hereby order to be consolidated with the appeal on our own motion and for good cause, Soderstrom raises various factual disputes. However, subsequent to our appointing him counsel,[2] he continued to file multiple pleadings[3] which we have included in his original petition and address here to forestall future petitions on the same grounds.

He alleges in the petition that the prosecutor committed misconduct in a variety of ways: (1) by failing to disclose prosecution witnesses criminal records and a tape of a police interview of a prosecution witness; (2) by suppressing exculpatory evidence at the preliminary hearing; (3) by presenting and relying on allegedly false testimony; (4) by relying and presenting a case alleged by him to have been ineptly investigated; and (5) by making improper comments in its argument. Soderstrom also attacks his trial counsels representation, contending the attorney ineffectively represented him by failing to fully cross-examine multiple prosecution witnesses, to investigate potentially helpful information in cross-examining prosecution witnesses, to voir dire the jury panel as to possible racial bias or animus, and to investigate or develop a mental defense to the charges or his incompetency to stand trial. He also contends trial counsel rendered ineffective assistance by forcing him to testify even though Soderstrom had told him he desired to remain silent. He then attempts to attack the trial courts rulings regarding three instructions (see CALJIC Nos. 2.71, 2.72, 9.40) and its evidentiary ruling that the prosecution could present a firearm demonstration. After fully reviewing all materials, including his motion to augment the record which we deny, we deny the writ.

FACTS

A group of acquaintances, most of whom abused various drugs, gathered in April 2002 at the residence of Wayne Dennis Corder, Jr. for a party to watch a Lakers game. Corderwho testified under a grant of transactional immunity due to the drug issuesshared the premises with Perry OKeefe, Darren Smeltzer and Anthony Montana. Corder and OKeefe had their girlfriends as guests for the night and other people arrived throughout the evening, including Soderstrom, although he had not been invited.

Corder had known Soderstrom for about two years, and occasionally the two men had partied together, meaning they would share drugs. Corder had also sold drugs throughout that period but only to people he trusted, and Soderstrom was not one of those he trusted. Corder insisted that he never asked Soderstrom to sell drugs for him. According to Corder, their relationship was one of a casual acquaintanceship in which Corder had given him small amounts of drugs on infrequent occasions.

Corder and Soderstrom, as well as the other party-goers,[4] used cocaine that night. The party ended at around 1:00 a.m., and the residents and their guests retired. At around 3:30 a.m., they were aroused by loud knocking on the front door: It was Soderstrom, who stood at the threshold, refusing to answer Corder when he asked his purpose for being there. Fearful that the police might be chasing Soderstrom, Corder and Smeltzer walked to the kitchen window to see if there were officers surrounding the place. As they turned back to the entry, they saw Soderstrom standing in the doorway, aiming a gun at them with both hands.

Corder immediately lifted his hands into the air and said, Whoa! Soderstroms response was to order him to Shut up! About this time, OKeefe emerged from his bedroom, and Soderstrom ordered him down onto his knees. Immediately after this, Soderstrom ordered the women who were still in the two bedrooms to join the men on the floor. When Corders girlfriend, Jill Carl, began crying, Soderstrom threatened to shoot her if she wasnt silent.

Corder again tried to engage Soderstrom in conversation, asking him, I thought we were friends. Soderstroms response was that he was desperate, adding this is what I do for a living. He demanded they give him $5000.[5] Corder did not have that much money,[6] but told Soderstrom that he had it in order to pacify him.

Soderstrom pulled out a roll of duct tape from his backpack and demanded Corder bind everyone with it. When he learned there was one more person in another bedroom, he ordered OKeefes girlfriend, Jamie Marquez, to awaken Montana and bring him out. As Soderstrom watched Marquez go towards the back bedroom,[7] Corder attempted to tackle Soderstrom. They struggled as Corder tried to overpower the man, but Soderstrom maintained control over the gun and hissed, Youre dead. Corder then heard a click from Soderstrom pulling the trigger, while the barrel of the gun was next to Corders left ear. Corder then heard a loud and long ringing in his ear, but he kept a firm grip on the hand holding the gun.

In the interim, Smeltzer managed to grab Corders football helmet from a table and struck Soderstrom in the head with it as forcefully as he could. Soderstrom seemed to be weakened by the blow but continued to grasp the gun in his hand. Corder demanded he release the weapon, but Soderstrom did not obey. Corder then bit him on the forearm, while Smeltzer continued to strike Soderstrom with the helmet. Finally, Soderstrom released the gun which Corder then propelled across the room, beyond Soderstroms reach. While Smeltzer continued hitting Soderstrom with the helmet, Corder was able to retrieve the gun which Soderstrom told him was not loaded.

Angered by all that had happened, Corder crossed the room with the gun in his hand and began hitting Soderstrom in the head with it. After receiving six or seven blows, Soderstrom rose and ran for the front door. Corder pursued him as did Smeltzer, both of whom reached Soderstrom before he was able to open the door. They both began raining blows on Soderstroms head which appeared to burst with a spray of blood. Nonetheless, Soderstrom was able to get out of the door, flee to his car and drive away.

While Corder, Smeltzer and Soderstrom struggled, OKeefe reached a cordless telephone and called for help. The emergency dispatcher recorded this call, and it was played for the jury. On the tape, OKeefes voice could be heard crying that they were being robbed at gunpoint.

In his trial testimony, Corder admitted that he lied at the preliminary hearing when he testified about the following subjects: (1) his prior use and sales of drugs; (2) the presence and use of drugs at the Lakers party that night; (3) his continued use of drugs after that night, resulting in his arrest and conviction for possessing cocaine and heroin while driving under the influence of drugs and alcohol; (4) his prior sales of drugs to Soderstrom before that night; and (5) his use of drugs at the time of the preliminary hearing.

Newport Beach Police Officer Mario Montero arrived at Corders place, having been waved down by Corder a short distance from the residence. When he arrived, he spotted a backpack on the floor which contained a ski cap or mask, a fanny pack, .45 caliber bullets, and a knife. Nearby, a .45 caliber, semiautomatic Glock handgun was lying on the floor, with its trigger cocked.

An officer ejected the guns magazine, and then pulled the slide back to ensure no bullet remained in the chamber. The magazine removed from the gun held nine live rounds and one spent casing. A weapons expert found the gun was operable.

Outside the home, a blood trail led from the doorway area to a spot a short distance away, where the blood spots ended. A deoxyribonucleic acid (DNA) sample was taken from some of the blood splatters which later was compared to a blood sample drawn from Soderstrom, and they matched.

Soderstrom testified in his own defense. He admitted he had a prior felony conviction for perjury, which was a crime of moral turpitude. He also admitted he used drugs, naming Corder as his dealer from whom he bought drugs in the past. After losing his job at American Express, Soderstrom became one of Corders drug sellers, which resulted in his owing Corder $12,000 after a planned transaction failed in 2001. He had to pay off this debt by selling drugs for Corder exclusively.

According to Soderstrom, he was invited to the Lakers party with the understanding that he would also be expected to make a cocaine delivery. Once at the party, however, Corder handed him a gun and told him to rob a cocaine dealer of a quarter kilogram of cocaine later that night. Soderstrom was uneasy about this request and returned to Corders place about 4:00 a.m. to inform Corder that he would not do it.

Corder told him he had to do it; otherwise they would both be killed. Soderstrom continued to hesitate, prompting Corder to aim the gun at Soderstrom and threaten him. Corder insisted that Soderstrom still owed him $5000, and this debt had to be paid immediately. Suddenly, Soderstrom grabbed the gun from Corder, and fearing an assault by the other people in the room, ordered all of them onto the floor. He denied ever demanding money from any of them; and he professed that he never even tried to fire the gun. He specifically denied ever robbing anyone that night.

DISCUSSION

II. THE APPEAL

A. Instruction on the Intent for Attempted Voluntary Manslaughter

The trial court instructed the jury that a lesser included offense to the charged crime of attempted murder was an attempt to commit voluntary manslaughter. (CALJIC Nos. 8.37, 8.40, 8.50, 17.10, as given.) These instructions were given with the express agreement of defense counsel. Nonetheless, Soderstrom now argues that the instructions were misleading because they failed to clearly mandate the jury find he harbored an intent to kill before rendering a verdict of attempted voluntary manslaughter.

The trial court told the jury that the . . . crime of attempted voluntary manslaughter is lesser to that of attempted murder charged in Count 1. . . . (CALJIC No. 17.10, as given.) This directive was followed with the simple definition that the crime of attempted manslaughter [was] the unlawful attempted killing of a human being without malice aforethought. (CALJIC No. 8.37, as given.) This description was preceded with the mandate that [a]n attempt to commit a crime consists of two elements, namely, a specific intent to commit the crime, and a direct but ineffectual act done toward its commission. . . . (CALJIC No. 6.00, as given.)

Attempted voluntary manslaughter was then further defined as the unlawful[] kill[ing of] another human being without malice aforethought but either with an intent to kill, or with conscious disregard for human life[,] having the following elements: 1. A human being was killed; [] 2. The killing was unlawful; and [] 3. The perpetrator of the killing either intended to kill the alleged victim, or acted in conscious disregard for life; and [] 4. The perpetrators conduct resulted in the unlawful killing. [] A killing is unlawful, if it was not justifiable. (CALJIC No. 8.40, as given.)

Finally, the court established the distinction between murder and manslaughter when it stated that murder requires malice while manslaughter does not. [] When the act causing the death, though unlawful, is done in the heat of passion or is excited by a sudden quarrel that amounts to adequate provocation, or in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury, the offense is manslaughter. In that case, even if an intent to kill exists, the law is that malice, which is an essential element of murder, is absent. [] To establish that a killing is murder and not manslaughter, the burden is on the People to prove beyond a reasonable doubt each of the elements of murder and that the act which caused the death was not done in the heat of passion or upon a sudden quarrel or in the actual, even though unreasonable, belief in the necessity to defend against imminent peril to life or great bodily injury. (CALJIC No. 8.50, as given.)

Although the defense waived this instructional complaint by expressly agreeing with the courts set of instructions on lesser included offenses and by failing to craft and request any clarifying or amplifying instructions (see People v. Welch (1999) 20 Cal.4th 701, 757), we address it nonetheless because the trial court has a responsibility to give accurate instruction on all elements of the offenses sua sponte. (See United States v. Gaudin (1995) 515 U.S. 506, 522-523; People v. Sanchez (1950) 35 Cal.2d 522, 528.)

Soderstrom leads us to the decision from the Fifth District, People v. Montes (2003) 112 Cal.App.4th 1543, in which the reviewing court found a similar attempted voluntary manslaughter instruction in error: The jury should have been directly told its responsibility to find that the defendant had the specific intent to kill in order to return a guilty verdict for attempted voluntary manslaughter. (Id. at pp. 1551-1552.) The trial court in Montes, like the lower court here, modified the standard definition of voluntary manslaughter found in CALJIC Nos. 8.37 and 8.40 by inserting the word, attempted, before the crime but not adding the requisite specific intent to achieve the crime into the elements. (Id. at pp. 1546-1547.)

In other words, the Montes court held that an attempt to commit voluntary manslaughter requires the specific intent to kill the victim even though the statutory definition of voluntary manslaughter fails to require such a mental element. (Id.at pp. 1548-1549; see People v. Lasko (2000) 23 Cal.4th 101, 104; Pen. Code,  192.) Based on the Montes holding, an attempted voluntary manslaughter cannot be committed by engaging in conduct in conscious disregard for human life as is the statutory definition for the crime of voluntary manslaughter if attempted and completed. (Id. at p. 1549-1550.) The holding rested on the rule that an attempted crime must be done with the specific intent to complete that crime. Thus, even though an intent to kill is not an element of voluntary manslaughter, it is absolutely essential to prove attempted voluntary manslaughter. (Ibid.)

The trial court erred in failing to instruct the jury that attempted manslaughter requires the perpetrator to have the specific intent to kill someone.[8] A person cannot specifically intend to kill another through mere reckless conduct; it requires the intent to kill. The question remains whether the error is one in which a miscarriage of justice must be shown to warrant reversal (cf. People v. Watson (1956) 46 Cal.2d 818, 836; Cal. Const. art. VI,  13), or if it must be harmless beyond a reasonable doubt to affirm. (Cf. Chapman v. California (1967) 386 U.S. 18.) The Attorney General argues the harmless error standard applies in assessing instructional errors, as delineated in the California Constitution article VI, section 13. Soderstrom merely argues reversal is required in this case, without differentiating the standard to be employed.

The Montes court held the instructional error must be reviewed under the Watson standard. (See People v. Montes, supra, 112 Cal.App.4th at 1552.) Under either standard, reversal was not warranted here: The prosecutor directed the jury in her argument that it had to find a specific intent to kill to reach a verdict of attempted voluntary manslaughter. Moreover, the evidence clearly supported the ultimate finding: Placing a gun next to a persons head and pulling the trigger after hissing, Youre dead! meets anyones standard of proof of an intent to kill.

B. Sufficiency of Evidence to Sustain Attempted Voluntary Manslaughter

Soderstrom contends the evidence is insufficient to sustain the conviction as the record is devoid of proof that he intended to kill Corder. Specifically, he emphasizes that there is no proof that he ever fired the gun. And if he did, he only did it to scare Corder, not to harm him. It was irrelevant, he argues, that he made threats to kill Corder because he really only intended to frighten Corder into paying him the money and releasing him from his involuntary servitude.

As has been often repeated, to determine the sufficiency of evidence to sustain a conviction, we review the evidence in the light most favorable to the verdict, drawing all reasonable inferences from the evidence, and accepting all credibility assessments as made by the trier of fact below, to see if any reasonable trier of fact could have found all elements of the offense beyond a reasonable doubt. (See People v. Carpenter (1997) 15 Cal.4th 312, 387; People v. Marshall (1997) 15 Cal.4th 1, 34.)

Soderstroms argument rests on his own version of events, ignoring all facts supportive of the jurys findings. Two of the witnesses testified to hearing a click emanate from the gun, immediately after Corder heard Soderstrom say, Youre dead! Moreover, this fact was corroborated by the officers who found the gun with nine live rounds in the magazine and one spent casing, and the witnesses who testified they heard a gun discharge that night. Even though the jury rejected the charge of attempted murder, it found he committed the above acts by convicting him of attempted voluntary manslaughter. The presumption in favor of the judgment applies under such facts.

C. Denial of Trial Transcripts

Soderstrom contends the trial court erred when it denied his request for personal copies of the trial transcripts following his conviction but before judgment was imposed. His request rested on his desire to bring a motion for new trial and substitution of appointed counsel, based on his belief that trial counsel had ineffectively represented him. Soderstrom concedes an indigent defendant does not have an absolute right to a personal copy of the trial transcript to prepare a new trial motion. (Cf. People v. Bizieff (1991) 226 Cal.App.3d 1689, 1700.) Nonetheless, he characterizes the courts denial of his request as depriving him of a fair trial because such a transcript may be essential to bring a motion at a critical stage. (Ibid.) That stage was met in his case because his attorney allegedly would not assist him in preparing such a motion simply because he was attacking that counsels competency.[9]

The main argument Soderstrom makes is that his efforts in raising the motion were unduly hampered without the transcript. He contends he could not recall in depth and detail all the instances of incompetence, although he had been present throughout the trial. Moreover, he posits that his indigency was undisputed, and thus, a copy should have been provided to him.

Soderstroms counsel informed the court on the original date for sentencing that Soderstrom desired to bring a motion for new trial and a habeas motion (sic), adding that his client wanted another attorney appointed for him. A hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 was conducted, resulting in the requests denial.

Two weeks later, another Marsden hearing was held, and Soderstroms motions for substitution of counsel and new trial were denied.[10] On the same day, Soderstrom filed a handwritten document alleging prosecutorial misconduct, ineffective assistance of counsel, judicial error in evidentiary rulings and insufficiency of evidence. In this written argument, he contended a personal copy of the full trial transcript was necessary for him to prove each of the alleged errors and to assist him in asserting them.

An indigent defendant is not entitled, as a matter of absolute right, to a full reporters transcript of his trial proceedings for his lawyers use in connection with a motion for a new trial; but, since a motion for a new trial is an integral part of the trial itself, a full reporters transcript must be furnished to all defendants . . . whenever necessary for effective representation by counsel at that important stage of the proceeding. [Citation.] There are no mechanical tests for deciding when the denial of transcripts for a motion for new trial is so arbitrary as to violate due process or to constitute a denial of effective representation. Each case must be considered on its own peculiar facts and circumstances. (People v. Bizieff, supra, 226 Cal.App.3d at p. 1700 [italics added], quoting from People v. Lopez (1969) 1 Cal.App.3d 78, 83.)

The trial court properly denied Soderstroms request. The transcript was not needed for counsel to prepare and present the motion; it was entirely for the benefit of Soderstrom to prepare a motion despite his counsels rejection of such a motion and despite the trial courts rejection of Soderstroms claims against counsel made under the Marsden seal.

In both Bizieff and Lopez, similar denials for such transcripts were upheld in spite of the fact that the requests were made by new counsel for the two defendants, and those attorneys had not been present during their clients trials. Noting that accurate transcripts are indeed necessary for a criminal appeal or retrial, the appellate court emphasized that no statutory right to such a transcript exists for the purpose of a new trial motion. (People v. Lopez, supra, 1 Cal.App.3d at 81; People v. Bizieff, supra, 226 Cal.App.3d at 1699.) Moreover, the need for such a transcript is not as great for a motion for new trial as it is for an appeal because the defense and the trial judge are normally present at the trial, and the motion will be heard and ruled on at a time when the testimony is still fresh in everyones mind. (Bizieff, supra, 226 Cal.App.3d at 1700; Lopez, supra, 1 Cal.App.3d at 82.)

Although Soderstrom made allegations against his trial counsel, the court rejected those allegations by denying the Marsden motions; and there was no showing that trial counsel refused to consult with him on the preparation of the motion. Clearly, the lack of the transcript did not impede or obstruct the preparation of Soderstroms motion because he completed and filed it on the day of the second Marsden hearing.

[I]f we were to hold that full trial transcripts must be provided to defendants, rich or poor, in every case in which new trial motions are made or contemplated, we would not only add to the tremendous burden which the trial courts of this state are already bearing, but in courts with heavily congested criminal trial calendars and a scarcity of qualified court reporters, we could even cause the wheels of justice to come to a grinding halt. (People v. Lopez, supra, 1 Cal.app.3d at p. 83.) Because due process does not require such a procedural right, trial transcripts for the purpose of preparation of new trial motions should be provided only in the very rare circumstances of extreme need and justification, such as the untimely death of the trial lawyer or the judge who presided at the trial . . . . (Ibid.)

As no such extreme need or justification was provided, the trial court properly denied the request for the transcript.

II. THE PETITION FOR WRIT

A.     Prosecutorial Misconduct

Soderstrom petitions us for a writ of habeas corpus, alleging many mistakes were made by the prosecutor and prosecution team. We group these allegations into five main categories and deny the petition without the need for any further hearing.

1.      Failure to Disclose

Soderstrom alleges the prosecutor failed to disclose that OKeefecharacterized by him as the key prosecution witnesshad prior felony convictions for conspiracy to sell [large amounts] of cocaine and an out-of-state conviction for possession of cocaine. He also contends the prosecutor failed to disclose a taped police interview of OKeefe, in which OKeefe allegedly made statements that exculpated Soderstrom. In that regard, Soderstrom alleges that a written report of the interview, provided to the defense before the preliminary hearing, contained incriminatory statements by OKeefe which were never made. Finally, Soderstrom acknowledges the defense received a copy of the taped interview but not until the day OKeefe testified, thus rendering it useless for impeachment and untimely under the discovery orders.

The record fails to support Soderstroms claims regarding OKeefes prior felony convictions. On the record but before the jury was selected, the parties discussed OKeefes prior convictions, and the prosecutor stated that all discovery had been met concerning all of the prosecution witnesses felony records. Moreover, two years before the trial commenced, the defense had formally requested information concerning both prior convictions, specifically describing them as the conviction for possession of cocaine in Las Vegas, NV on 10/11/99 and the conviction on 2/12/90 of PC 182 [conspiracy] and 11350 [possession of cocaine] in Case C-756818 in Orange County, thus indicating the defense was fully aware of the charges, dates and sites of both prior convictions early in the case.[11] Moreover, when information of prior convictions for the purpose of impeaching a witness is requested, it is not the prosecutions duty to provide background materials on those prior convictions: The proof of the convictions is all that is required. (See People v. Allen (1986) 42 Cal.3d 1222, 1270; see  1054.1, subd. (d).)

Finally, OKeefe was not the pivotal witness Soderstrom now makes him out to be.[12] Clearly, Corder was the witness whose testimony was most incriminating and whose credibility was most subject to attack. OKeefe corroborated Corders testimony in some particulars, but he was not present when Soderstrom first pulled a gun on Corder and Smeltzer. Therefore, OKeefe was unable to contribute in any way to support Soderstroms main point that Corder was the one who initially pulled the gun on him. Secondly, OKeefes trial testimony failed to corroborate Corders story in that OKeefe said he could not hear if Soderstrom threatened to kill Corder or if the handguns trigger was ever pulled. Had the taped interview been admitted into evidence or even discussed on cross-examination, that very corroboration would have been provided: OKeefe stated in that taped interview that Soderstrom had threatened Corder and then pulled the trigger on the gun.

2.      Suppressing Exculpatory Evidence

(a) OKeefes Taped Interview

Soderstrom alleges that the prosecutor intentionally suppressed a taped recording of a pretrial interview of OKeefe in which he allegedly made both

exculpatory and inconsistent statements regarding the issue of [Soderstroms] guilt . . . . Soderstrom says the prosecutor provided a report referring to, and allegedly summarizing this interview at the time of Soderstroms preliminary hearing. However, this report allegedly misrepresented OKeefes statements, thus misleading the defense into believing OKeefes testimony was consistent with the earlier interview. Moreover, the prosecutor failed to provide the actual tape until the day of OKeefes testimony at trial which was far too belated for purposes of impeaching OKeefes trial testimony because it could not be studied before OKeefe testified, and its inconsistencies with the report were left undiscovered due to the tapes untimely delivery. The result of this allegedly intentional misrepresentation and failure to divulge was to deprive Soderstrom of a substantial right at his preliminary hearing[13] and a subsequent fair trial.

Soderstrom argues that the significance of the statements is clear: In this interview, OKeefe allegedly told the detective he heard a click indicating the trigger was pulled immediately after Soderstrom was overheard saying that he was going to kill Corder. OKeefe failed to testify to these critical facts, saying instead that there was too much noise and commotion to hear either the click of the gun or a discharge, and he failed to recall hearing any threat allegedly made by Soderstrom.

Soderstrom contends the prosecution intentionally suppressed certain key points in OKeefes interview because they would have exculpated him. For instance: (1) OKeefe said Corder was a drug dealer; (2) the report of the interview failed to refer to this fact; and (3) Corder testified at the preliminary hearing that he was not a drug dealer and from this the magistrate concluded Corder was a credible, truthful witness, holding Soderstrom to answer on all charges.

The record fails to support Soderstroms allegations on any point. OKeefe did not say Corder was a drug dealer in the taped interview; the report of the interview accurately reported the essential details of the taped interview; and the magistrate never made any reference or conclusion regarding Corders credibility in his conclusion to bind Soderstrom over on the charges.

(b) Corders Inconsistencies

Soderstrom also argues that Corder was arrested on drug sale charges after his preliminary hearing testimony but before trial. Because of this arrest, the prosecutor granted him immunity in exchange for his testimony against Soderstrom, and Corder then admitted he had lied at the preliminary hearing as to the drug dealing. Soderstrom maintains this admission was inadequate because Corder allegedly continued to lie about other matters in his preliminary hearing testimony, such as never having fired a handgun and not having given Soderstrom permission to enter the residence on the morning in question.[14]

Again, the record fails to support any of Soderstroms allegations. In the preliminary hearing, Corder testified he hadfired a handgun once before but did not know whether it was a Glock firearm. At trial, he testified he fired a gun once before, in the company of his father, but the gun was a rifle. He was then cross-examined as to this inconsistency. He said he did not remember being specifically asked about firing a handgun; he explained he could have meant I fired a gun before. I dont have a handgun because Ive only went to a firing range with my father, thats the only time I fired a gun in my life. He conceded he was probably mistaken. Finally, at trial Corder testified he did not allow Soderstrom to enter the house that early morning, yet conceded he had left the door open when he and Smeltzer went to check out the kitchen window, apparently giving Soderstrom the opportunity to enter behind them.[15]

Thus, each of the alleged falsities was examined at trial, giving the jury a full opportunity to assess Corders credibility in an accurate light.[16] Moreover, there is no indication that any of the allegations were intentionally misrepresented by the prosecutor, or that the taped interview was in any substantive way inconsistent with the written report delivered to the defense before the preliminary hearing. Finally, nothing argued here indicates that the magistrate would have reached a different conclusion had these inconsistencies regarding the handgun or the entry into the house been presented at that preliminary hearing. The magistrate noted in his ruling that there were questions in the case suggesting that, in the magistrates mind, a negotiated disposition was appropriate. But the magistrate also noted that there was evidence to support each of the elements of the charges.

Most importantly, allegations of errors occurring in the preliminary hearing are not cognizable on appeal unless shown to have deprived the defendant of a fair trial. (See generally People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529; 4 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Pretrial Proceedings,  230, pp. 439-441.) No such showing has even been attempted here. Soderstrom merely argues the magistrate would have surely rendered a different ruling had these matters been presented to him, and thus, he would never have had to go to trial. Such an argument fails to show that his trial was fundamentally unfair which is the prerequisite for prejudice.

(c) Jamie Marquezs Arrest

In Soderstroms second supplemental brief, he contends the prosecutor suppressed potentially exculpatory evidence concerning OKeefes girlfriend, Jamie Marquez. He presents a copy of a document charging OKeefe with the drug possession case in November 1999 in Las Vegas, Nev. This complaint also names Jamie Marquez as a codefendant. From this, Soderstrom extrapolates that Marquez could have been impeached with these felony charges had the prosecution divulged all exculpatory evidence pursuant to Brady v. Maryland (1963) 373 U.S. 83 as required.

Soderstrom fails to meet the threshold showing necessary for a Brady claim: For impeachment evidence, there must be information of a felony conviction. No such evidence exists for Marquez. Based on anecdotal rumor, Soderstrom alleges that Marquez and OKeefe both pleaded guilty to the same offer made by the prosecutor in Las Vegas and received a 30-day jail sentence. Assuming that to be true, that would only support the allegation of a misdemeanor conviction, not a felony. (See People v. Vessell (1995) 36 Cal.App.4th 285, 291-294.) Misdemeanor convictions cannot be used to impeach a witness.[17] On both substantive and technical grounds, Soderstrom has failed to meet the showing necessary for a Brady issue.

3. Presenting False Testimony

Soderstrom contends the prosecutor elicited false testimony from a key witness at trial, namely Corder. He extrapolates the prosecutors bad faith from the fact the same prosecutor questioned Corder at both the trial and the preliminary hearing in which Corder denied drug use or sales[18] and denied Soderstrom carried a bag when he entered the party.

Soderstrom fails to comprehend that witnesses often testify in slightlyor even greatlydifferent ways between a preliminary hearing and the resulting trial. This disparity does not necessarily equate with a prosecutors subornation of perjured testimony. (See People v. Gonzalez (1990) 51 Cal.3d 1179, 1242 [The petitions point to a number of contradictions in [a witnesss] statements on the stand in this and other cases. However, one cannot state a prima facie case of perjury or concealment simply by showing inconsistencies in the witnesss testimony.].) And it would be faulty lawyering if the prosecutor had not argued that the bag found at the scene was left there by Soderstrom, considering witnesses other than Corder testified they had seen Soderstrom with it at the party and had seen Soderstrom withdraw the duct tape from it with which he made Corder bind the others. (See generally People v. Lawley (2002) 27 Cal.4th 102, 156 [prosecutor entitled to comment on all evidence in the record properly admitted by the court in arguing defendants guilt].)

In one of Soderstroms supplemental briefs, he alleges the prosecutor presented and argued knowingly false information. Specifically, he discovered that between the time Corder was arrested and convicted for cocaine possession while driving under the influence and Soderstroms trial in which Corder testified under a grant of immunity, Corder had twice tested positive for drug use. Thus, he argues, Corders testimony at trial that he stopped using drugs entirely after spending time in jail for the cocaine possession was a lie, knowingly presented by the prosecution.

Soderstroms information fails to show the prosecutor even knew of the drug testing by the probation officer much less knew of the results before Corders testimony in Soderstroms trial. Soderstrom attached the probation officers pleading reflecting a filing date of May 2005. Soderstroms trial occurred in August 2004. Thus, the probation officer, who is not a member of the prosecution team but an adjunct to the court, may not have even reported the two tests to anyone before the May 2005 pleading in which the first violation of probation was brought against Corder.

4. Deficient Investigation

Soderstrom contends his right to a fair trial was compromised when certain law enforcement officers, searching a backpack found at the scene, found and seized various items without covering their hands with gloves. Soderstrom also alleges the officers were in the presence of Corder while searching the backpack and discussed the items with him before concluding they belonged to Soderstrom. Soderstrom emphasizes no fingerprints were recovered from any of the items seized from the backpack, although three latent prints, never matched to anyone, were lifted from the duct tape roll Soderstrom allegedly handed to Corder during the incident. Finally, a few hairs found on the ski mask in the backpack were never tested and compared with his genetic typing. According to Soderstrom, such an inappropriate investigation deprived him of a fair trial.

The core of this issuethe failure to search for exculpatory evidencehas already been raised by Soderstrom and denied previously by this Court in a petition treated as a petition for writ of mandate or prohibition. Soderstrom then petitioned the California Supreme Court which likewise rejected his petition.[19] It is law of the case that the issue was either factually unsupported or unmeritorious.[20] (See In re Clark (1993) 5 Cal.4th 750, 767 [the court will not consider repeated applications for habeas corpus presenting claims previously rejected.]; see also People v. Hogan, supra, 31 Cal.3d at p. 851 [no duty on the state to seize all possible evidence for defense or test for potential defense purposes].)

5. Improper Argument

Soderstrom accuses the prosecutor of misconduct when she allegedly:

(a) argued facts outside the record, (b) misstated the law, (c) speculated as to Soderstroms actions during the incident, (d) minimized the purported lies told by prosecution witnesses and then attempted to justify such lies, (e) expressed her personal belief in his guilt, and (f) invited the jury to render a verdict based on passion and prejudice. Because all of these contentions should have been raised in the direct appeal, we could reject them from the outset. (See generally People v. Duvall (1995) 9 Cal.4th 464, 478; In re Dixon (1953) 41 Cal.2d 756 [the Dixon rule].)

However, we choose to exercise our discretion and resolve them here because Soderstrom, in filing multiple subsequent petitions in pro. per., raises them in repeated fashion. (See 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Writs,  23, pp. 544-545.) Moreover, Soderstrom makes each of these contentions notwithstanding his failure to object in the trial court, which results in his waiver of the issues for post-judgment review. (See People v. Cleveland(2004) 32 Cal.4th 704, 761-762.)

(a) Facts Outside the Record

Soderstrom complains the prosecutor argued facts outside the record. Specifically, he points to comments the prosecutor made in argument that Soderstrom had a motive to lie and a motive to rob, even though concededly no one testified to that, but like I said, its not just what people [said], its what they [didnt] say. Before and after this statement, she invited the jury to overlook discrepancies in the testimony of Carl and Corder, and minimized Corders previous testimony about never having sold or used drugs when he, in fact, had sold and used drugs. Finally, Soderstrom complains the prosecutor improperly argued that he resented Corder due to the drug-dealing obligations he owed him and attempted the home invasion robbery to take what he believed was his . . . . As no one testified directly as to these facts, he characterizes their expression as prosecutorial misconduct.

A prosecutor is given wide latitude in argument, and may discuss the facts and the law as seen fit, advance any theory fairly within the evidence, and urge any conclusions deemed proper. The logic of the prosecutors argument is for defense counsel to challenge and for the jury ultimately to determine. [Citations.] (5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial,  570, pp. 813, italics added.) This scope permits expression of the prosecutors view of the deductions or inferences warrantedin his or her opinionby the facts. Their reasoning may be faulty, their deductions from the premises illogical, but this is a matter for the jury ultimately to determine, and not a subject for exception on the part of [the defense]. [Citations.] (Ibid.)

Moreover, [a] court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations.[21] (People v. Gonzalez (1990) 51 Cal.3d 1179, 1224, fn. 21.) Thus, a prosecutor may argue his or her opinion as to a persons motive in doing something or testifying in a particular way, even though that person never actually testified to his or her motive. (See e.g., People v. Frye (1998) 18 Cal.4th 894, 972.)

Prosecutorial misconduct is defined as rude and intemperate behavior violat[ive of] the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. . . . But conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. (People v. Espinoza (1992) 3 Cal.4th 806, 820.) None of the prosecutors comments reached this level. In context, each was a valid exercise of zealous but reasonable oratory.

(b) Misstatement of the Law

Soderstrom focuses on certain comments made by the prosecutor referring to the lesser included offenses to attempted murder. He contends the prosecutor erred when she argued that the difference between murder and manslaughter is malice aforethought. . . . [In both,] you still have to have the intent to kill; okay. The difference is what negates the malice aforethought is the legal fiction.[[22]] []This is what I mean. Under certain circumstances the law understands why a person did what they did and kind of gives you a discount. So you have the intent to kill, okay but we as the community or the law recognizes a reason for that. We understand justification that kind of mitigates . . . malice aforethought. The prosecutor then described that heat of passion or imperfect self-defense may be such circumstances, noting that the law doesnt excuse it, but the law says we understand how you got there. . . . [] So if you believe the testimony and if you believe that the person was under the influence of heat of passion, they didnt know what was going on, they saw red [or were unreasonably but sincerely afraid] and thats when they committed the act, then theyre guilty of voluntary manslaughter, okay. Because its intent to kill is there, its just the justification for it.

Soderstrom misstates the prosecutors argument and contends she was expressing her personal belief on a matter in issue. We reject such a characterization. Moreover, it was up to the jury to determine what the facts were and then to render a verdict consistent with those findings. They did so, rejecting the prosecutors case of attempted murder and attempted robbery of all other occupants except Corder; but simultaneously, the jury rejected Soderstroms strange tale of arriving in the early morning hours and being assaulted by Corder before he wrested the gun from him and held five people at bay until he was attacked by them.

(c) Speculations

Soderstrom characterizes the prosecutor as arguing to the jury certain speculations as fact when no testimony was received on the issue. Specifically, he now objects to Corders testimony that Smeltzer was deaf, thus explaining why Smeltzer told the officers at the scene that he did not recall hearing any demand by Soderstrom for money. Smeltzer was never called to testify at either the preliminary hearing or the trial. Nonetheless, Soderstrom alleges Smeltzer would have exculpated him had his trial counsel procured his attendance. His absence permitted this allegedly contrived explanation by the prosecution and Corder. From this, Soderstrom contends he was deprived of a fair trial.

Soderstroms allegations comprise the speculation, and not the prosecutors arguments. He maintains that Smeltzers interview was videotaped; and in this interview, Smeltzer never informed the police he was deaf and required a hearing device. Likewise, Soderstrom notes Corder never testified at the preliminary hearing that Smeltzer was deaf.[23] From this absence of information, Soderstrom concludes the prosecutor suborned perjury from Corder as to Smeltzers hearing impairment. He has failed to carry his burden: He must show by evidence in the record that error occurred. No error has been shown: Statements of observable disabilities or characteristics are not hearsay[24] at all, and assuming Corders testimony was hearsay, his comments were arguably admissible under Evidence Code sections 1250-1251.

(d) Minimizing Witnesses Lies

Soderstrom complains that the prosecutor was permitted to argue that the inconsistencies in the prosecution witnesses stories were reasonable or explainable while his were irrational or incredible. He characterizes these statements as minimizing overt lies and providing justification for those lies while attributing irrationality to his story. But parties in argument are permitted to comment on the evidence and may invite the jury to draw all reasonable inferences from it, such as opining the various motives for specific testimony. (See People v. Frye (1998) 18 Cal.4th 894, 971 [[A]s long as a prosecutors assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the facts of the record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief, her comments cannot be characterized as improper vouching.].)And as noted before, mere inconsistencies in a witnesss testimony or that between two witnesses testimonial records does not establish perjury or even false testimony. (See People v. Gonzalez, supra, 51 Cal.3d at p. 1242.)

Nothing untoward occurred here; and Soderstroms failure to object to any of the comments during argument eliminated any possible curative admonition, assuming any error could be found. Thus, as an alternative grounds to reject the issue, it was waived. (People v. Cleveland, supra, 32 Cal.4th at pp. 761-762.)

(e) Personal Expression of Defendants Guilt

A prosecutor should not express his or her personal opinion as to the defendants guilt and is limited to arguing that the evidence establishes such guilt. (See People v. Dillinger (1968) 268 Cal.App.2d 140, 144; see also 5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial,  576, pp. 824-826.) Soderstrom contends the prosecutor crossed this line, but the record fails to support him in this accusation.[25] Thus, he has failed to make even a prima facie case.

(f) Inviting a Verdict Based on Passion

Soderstrom similarly characterizes another portion of the prosecutors argument as unfairly invoking passion and prejudice. He emphasizes that she focused on his alleged statements during the incident that he was desperate and that he allegedly committed robberies for a living. She then stated, I dont care what you think the amount was, whether its five hundred, five thousand dollars, one thousand dollars a week, it doesnt matter. But do you honestly believe that he came to that house at 4:00 in the morning knowing theres other people there[,] to rob Denny without taking into consideration that theres other people there? Do you honestly believe that once you realize that Denny doesnt have that kind of money, he wasnt going to take the property from the rest of them?

Nothing in these comments supports Soderstroms characterization of them as prosecutorial misconduct. Contrary to his opinion, these statements are not an attempt to improperly influence the jury to return a verdict of guilty.

B.     Ineffective Assistance of Counsel

Soderstrom attacks his trial counsels representation as ineffective for a number of reasons. We group these contentions into five categories: (1) errors in cross-examination of witnesses; (2) errors in investigation; (3) errors in jury voir dire; (4) the erroneous failure to pursue a mental defense; and (5) the erroneous forced compulsion of Soderstroms testifying in his own behalf. In our analysis of each group, we bear in mind that Soderstrom carries the burden of showing counsels performance was deficient and that deficiency resulted in the denial to him of a fair trial. (See generally Bell v. Cone (2002) 535 U.S. 685, 695; People v. Riel (2000) 22 Cal.4th 1153, 1175.)

1.      Defective Representation in Cross-Examination

Soderstrom alleges that his trial counsel failed to cross-examine OKeefe at trial. Specifically, he says OKeefes prior convictions should have been used to impeach OKeefe; and the inconsistencies between OKeefes pretrial taped statement and his trial testimony should have been vigorously pursued.

The record fails to support Soderstrom in these attacks. Trial counsel did cross-examine OKeefe,[26] eliciting OKeefes admission that he had been a drug abuser in the past. OKeefe was not impeached with the prior felony convictions, but the issue was discussed in limine in conjunction with the prosecutions motion to impeach Soderstrom with prior felony convictions in the event he testified. As the prosecutor agreed to use only the existence of the prior convictions concerning moral turpitudeand not concern herself with any of Soderstroms other prior convictionsto impeach Soderstrom, the discussion then turned to the limitations on using the prosecution witnesses prior convictions.

It was agreed that the defense could cross-examine both Corder and OKeefe as to their prior felony convictions even though they were simply drug possession and transportation charges. As the defense cross-examined OKeefe as to his previous drug use, impeachment with the actual conviction for drug possession was generally unnecessary: The jury learned OKeefe was a drug abuser without needing the prior conviction to prove it. Thus, Soderstrom suffered no prejudice from counsels tactical choice to not use the prior conviction but to rely on the generalized admission by OKeefe of prior drug abuse. (Cf. Strickland v. Washington (1984) 466 U.S. 668, 687 [petitioner attacking trial counsels performance must show deficient performance by attorney and reasonable likelihood of more favorable outcome in absence of the defect]; People v. Ledesma (1987) 43 Cal.3d 171, 215.)

Soderstroms real argument is that he now contends counsel should have questioned OKeefe in such a way as to establish that his conviction in 1990 was from a conspiracy to sell a large amount of cocaine, implying that OKeefe and Corder were presently cocaine dealers because they sold drugs in the past. This point, he contends, would bolster his defense story that Corder was forcing him to sell drugs for him now.

These interpretations may be interesting but fail to have any nexus to the situation and characters in the case before us.[27] Moreover, one cannot impeach a witness with the facts underlying a prior felony conviction, only with the fact of the prior conviction. (See Evid. Code,  786-787; People v. Heckathorne (1988) 202 Cal.App.3d 458, 462 [The scope of inquiry when a [witness] is impeached with evidence of a prior felony conviction does not extend to the facts of the underlying offense.].) Thus, counsels tactical decision to not pursue them cannot be deemed to be unreasonable and deficient. (Cf. People v. Terrell