P. v. Sandner

Filed 8/21/07 P. v. Sandner CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Stanislaus County. Joseph R. Distaso, Judge.

Sharon Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Janis Shank McLean and Jane N. Kirkland, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted appellant Albert Sandner of first degree murder (Pen. Code, 187, 189). The court imposed a prison term of 25 years to life.

On appeal, appellant contends (1) he was denied his constitutional right to the effective assistance of counsel by his trial counsels failure to object to certain evidence elicited on cross-examination and recross-examination of an expert witness testifying for the defense, and (2) the abstract of judgment and sentencing hearing minute order incorrectly state that appellant was sentenced to life without possibility of parole. We will direct the trial court to issue an amended abstract of judgment and amended sentencing minute order, and otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Facts

On June 15, 2003,^[1]police found the body of Alan Colossio in the roadway near a car wash in Turlock. Colossio had died as a result of multiple stab wounds. He had also suffered blunt-force injuries, and a blood test revealed he had methamphetamine in his system. Police found, on Colossios person, a wallet containing credit cards but no money, keys to Colossios apartment, and a ring. A photograph of Colossios body, as it appeared when police found it, was admitted into evidence.

On the night of June 14, Colossio borrowed a 1995 Geo car (the Geo) belonging to his sister-in-law, BuffyAnn French. Colossio was with Gary Reed at the time.

Tiffany Cox testified to the following: On the night of June 14, appellant and Reed arrived at her motel room. Reed told Cox that Colossio wanted to buy $10.00 worth of methamphetamine. Cox told Colossio she had the drugs and he would have to go to an ATM machine to get the money to pay for them. Colossio and Reed left, and returned a short time later with appellant and James Betts. Colossio purchased the drugs and went out to the car, accompanied by the others, presumably to do his drugs.

Cox further testified to the following: Thereafter, appellant, Reed and Betts returned to Coxs room. Reed was angry because Colossio refused to share the drugs. He said Colossio was a tight wad motherfucker and a child molester. In response to the latter accusation, appellant said [t]hat we should kill him and that they were going to take him and kill him. Also in [this] part of the conversation, appellant or Reed said they were going to rob [Colossios] house. The four men left Coxs room shortly thereafter, along with Coxs friend, Corrine.

William Watson testified to the following: On the evening of June 14, appellant, Reed, Betts and Colossio went to Watsons apartment in Turlock. At one point while Colossio and Betts were in the bedroom and appellant and Reed were in the living room with Watson, Reed asked Watson for a gun. Watson testified, I dont remember much of [appellant] asking me for anything except some kind of weapon. It was -- no, I told him I dont use guns, knives only. So it had to be a knife. Shortly thereafter, the following exchange took place:

Q Did Sandner ask you for something?

A Specifically? I dont remember him asking for anything outright. We didnt talk more than five minutes.

Q You said he asked you for a weapon?

A Yeah, I think it was a knife. [Reed] already asked for a gun.

Q But your recollection is Sandner asked you for a weapon and you believe it to have been a knife?

A Yes.

Watson further testified to the following: The four men left Watsons apartment shortly after 4:00 a.m. on June 15. At some point before they left, Watson showed knives, and he and the other men consumed a total of four little lines of methamphetamine. Watson did not give anyone a knife, but later learned that a Kbar knife belonging to him was missing. He learned the knife was missing after the officers came back and said that it was used.

Amanda Peacock testified to the following: In June 2003, she and appellant were living together at the Modesto Inn in Modesto. At some point on the evening of June 14, Peacock, appellant and Reed were in the room when the following occurred:

[Reed] was talking to [appellant] about . . . some family member of his was kidnapped . . . . and [appellant] said, I have to go take care of a child molester. You know how I feel about them. Appellant also said that [child molesters] dont deserve to live.

Cox testified to the following: Approximately two hours after leaving Coxs room on June 14, appellant, Reed, Betts and Corrine returned. The three men appeared shocked, and their clothing was splatter[ed] with blood. Corrine went out in the parking lot where she stole some clothes out of a car; returned to Coxs apartment; and gave the three men the clothes. The men went into the bathroom and changed into the clothes Corrine had supplied. They handed the clothes they had been wearing to Corrine, and left.

Peacock testified to the following: [S]ometime after leaving her room, before dawn, appellant, Reed and Betts returned. After Peacock came out of the bathroom, the three men rushed into the bathroom. Peacock heard a lot of water noise after which the three men came out with different clothes on. Peacock asked appellant what had been going on, and appellant responded, There are some things you dont need to know. At one point, they were all talking about smashing somebody, and appellant said, we did more than smash someone, but were not going to talk about that.

Cox testified to the following: She saw appellant [a] day or two after the occasion in her room when appellant, Reed and Betts changed into the clothes supplied by Corrine, at which time appellant said that when he was sticking the guy, he (the guy) reached up and grabbed appellants clothes, and appellant pushed him back and started sticking him some more. Appellant also said that Reed became frightened, and [t]hat if [Reed] opens his mouth, that hes going to kill him too.

According to police testimony, the following occurred on June 15: The police found the Geo parked at the Modesto Inn. Subsequently, the Geo drove off and shortly thereafter police stopped the car and arrested two of its occupants, Reed and Betts. Reed had in his possession three credit cards which belonged to French and which she kept in the glove compartment of the Geo. In the Geo, police found clothing with Colossios blood on it. A California Department of Justice criminalist testified appellant could not be excluded as a contributor to some of the blood found on the clothing.

City of Turlock Police Officer Michael Morgan testified to the following: Police arrested appellant on June 16. Officer Morgan conducted two interviews of appellant, on June 16 and June 17, respectively, and during those interviews appellant stated the following: Appellant, Colossio, Reed and Betts drove to Bills residence in Modesto, where there was some conversation . . . regarding trying to obtain a gun and dope and then going from Bills on over to the car wash. [A]t some point they ended up in Turlock at a car wash waiting on what [appellant] thought was a drug deal. The four men got out of the car, and [a]t some point [appellant] and [Betts] were back . . . in the car and there [were] . . . cross words between . . . [Colossio and Reed]. The [n]ext thing [appellant] knows, Reed is throwing him the car keys and saying, lets go. About this time, appellant heard Colossio screaming. After Reed threw him the keys, appellant drove three of them . . . back to Modesto.

Officer Morgan further testified to the following: Appellant also talked about them planning -- that [Reed] was attempting . . . to talk to them about robbing [Colossio] of his car [and, in Colossios] apartment, the VCR, TV and a carton of cigarettes. Appellant further stated the following: It was agreed appellant would be taking part in the robbery, and [p]art of him taking part was he agreed to at least drive the car. Reed and Betts were going to beat up [Colossio] and then [appellant] was going to drive the car to wherever they were going to get dope.

Officer Morgan further testified that appellant told him that he (appellant) didnt pay attention to a lot of what [Reed] was saying, but, [appellant] did understand the fact that they were going to take [Colossios] car and rob him of his property in Modesto, and appellant was . . . surprised that somehow they ended up in the car driving to Turlock.

Peacock testified to the following: In June 2003, she had been living with appellant for seven months. She and appellant were addicted to methamphetamine. Appellant suffered from mental problems and he had to take psychiatric medications. When appellant took his medications, he was more balanced and he could be a, quote/unquote, normal person. But when he was off his medication, he would be very angry and threatening and violent. As of June 14, appellant was taking his medications [s]poradically . . . .

Psychologist Wendy Weiss, Ph.D., the sole witness for the defense, testified to the following. She was appointed by the court to conduct an evaluation of appellant;^[2]she met with him in May 2005, when he was 32 years old. In June 2003, appellant was suffering from some type of psychotic disorder. His reported symptoms included auditory hallucinations, including command hallucinations telling him to harm other people; paranoid thinking; poor impulse control; depression; and anxiety. Appellant also reported the following. He was using drugs and alcohol on a daily basis by the time he was 19 years old and he began abusing methamphetamine at that age. As a child his father physically abused him and he (appellant) witnessed his mother being raped. Appellant began seeking and receiving mental health treatment in his teen years. Dr. Weiss opined that appellant was not making up [the reported] symptoms, and that he has experienced genuine mental health problems from a young age.

Dr. Weiss further testified to the following: The long-term effects of methamphetamine use can include violence, auditory hallucinations and other psychotic symptoms, such as paranoia, delusions. Methamphetamine use would have a tendency to exacerbate [the] symptoms [of someone with a psychotic disorder]. Drugs and alcohol tend to have a disinhibiting effect, preventing someone from having the kind of control over their behavior and emotions that they might have in the absence of drugs. Dr. Weiss opined, I dont believe that [appellant] was in total control of his faculties on the date of the incident. . . . I also think that he was experiencing the effects of methamphetamine, some disinhibition, some inability to think as clearly as when he would be stable on medication and not taking drugs.

On cross-examination, Dr. Weiss confirmed that in a report she submitted to the court in May 2005, she stated the following: Even if [appellant] had experienced voices telling him to cause harm to the victim, there is no indication that he lacked knowledge that this behavior was wrong. It appears that he along with the codefendants were able to make a plan of action and that they acted in a purposeful and goal-directed way to execute this plan of action. It appears that they sought out weapons to commit the alleged events and inquired about an appropriate location to take the victim to in order to commit the alleged offense. (Italics added.)

On recross-examination, Dr. Weiss confirmed that she had reviewed medical records which indicated the following: in a 1993 interview, appellant made the following statements: I flipped out in March and almost killed my boss ; I like the taste, color, and smell of blood ; and I just like pain, getting it and inflicting it on others. Ive always been violent, even as a kid. ; Dr. Weiss also confirmed that she had reviewed a 2001 report which contained the observation that appellant [a]ppears to enjoy talking about his past violent episodes and considers himself to be . . . creative when angry[] . . . . ^[3]

Closing Argument

Defense counsel told the jury in closing argument, Im about to do something Ive never done in my almost 25 years of practicing law. Im going to ask you to find my client guilty of murder, but murder in the second degree. Counsel argued that appellant, because of his addiction and mental illness, could neither premeditate, deliberate nor form the specific intent to rob, and therefore did not have the mental state required for first degree murder.

The prosecutor countered by reading the portion of Dr. Weisss May 2005 report that included her opinion that appellant planned his acts and acted in accordance with his plan. The prosecutor then argued, That was the defense experts testimony, saying that that was indeed her conclusion after evaluating [appellant], the police reports, and all the surrounding circumstances.

Verdict

The jurys verdict included the following statements: We further find that the Murder was intentional, deliberate and premeditated. [] We further find that the Murder was committed during the course of a Robbery, in violation of Section 211 of the California Penal Code.

DISCUSSION

Ineffective Assistance of Counsel

Appellant first argues that his trial counsel was constitutionally ineffective in failing to object to the evidence that Dr. Weiss had opined in her May 2005 report that at the time of the instant offense, appellant was able to make a plan of action and acted in a purposeful and goal-directed way to execute this plan of action. This evidence, appellant asserts, was inadmissible because it, in effect, allowed Dr. Weiss to testify as to elements of the mental state required for first degree murderviz., premeditation, deliberation and, as relevant to the prosecutions felony murder theory, specific intent to commit robberyin contravention of Penal Code section 29, which provides, in relevant part, that [i]n the guilt phase of a criminal action, any expert testifying about a defendants mental illness, mental disorder, or mental defect shall not testify as to whether the defendant did or did not have the required mental states . . . for the crimes charged.

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.) The burden of proving ineffective assistance of counsel is on the defendant. (People v. Babbitt (1988) 45 Cal.3d 660, 707.) To prevail on a claim of ineffective assistance, a defendant must show both that counsels performance was deficientit fell below an objective standard of reasonablenessand that defendant was thereby prejudiced. (People v. Cash (2002) 28 Cal.4th 703, 734.) On direct appeal, in order for a defendant to show deficient performance by counsel, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission. (People v. Ray (1996) 13 Cal.4th 313, 349.) And to show prejudice, the defendant must establish a reasonable probability that, but for counsels 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 v. Washington (1984) 466 U.S. 668, 694 [104 S.Ct. 2052, 2068] (Strickland).)

We assume without deciding the following: the evidence in question was inadmissible; the record establishes that counsel had no rational tactical purpose for not objecting to this evidence; and therefore appellant has made the required showing that his counsels performance was not objectively reasonable. Accordingly, we turn to an examination of the prejudice prong of our inquiry. (Strickland, supra, 466 U.S. at p. 697 [a court need not determine whether counsels performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies].)

Resolution of this question turns on the distinction between first degree murder and second degree murder. First degree murder is defined as willful, deliberate, and premeditated killing[.] (Pen. Code, 189.) Second degree murder is defined as the unlawful killing of a human being with malice aforethought, but without the additional elementsi.e., willfulness, premeditation, and deliberationthat would support a conviction of first degree murder. [Citations.] (People v. Nieto Benitez (1992) 4 Cal.4th 91, 102.) In addition, under what is commonly called the felony murder doctrine, first degree murder also includes any murder . . . committed in the perpetration of, or attempt to perpetrate [certain enumerated felonies including robbery]. (Pen. Code, 189.) The felony-murder doctrine . . . eliminates the requirements of malice and premeditation for first degree murder and provides that a killing is still murder of the first degree, whether intentional or unintentional, if it is committed in the perpetration of, or the attempt to perpetrate, [the enumerated] felonies . . . . (People v. Portillo (2003) 107 Cal.App.4th 834, 843.) The mental state required is simply the specific intent to commit the underlying felony; neither intent to kill, deliberation, premeditation, nor malice aforethought is needed. [Citations.] (People v. Hart (1999) 20 Cal.4th 546, 608, quoting People v. Berryman (1993) 6 Cal.4th 1048, 1085.)

As indicated above, there was essentially no dispute that appellant was guilty of murder; the only point of contention was whether he committed murder in the first or second degree. And as appellant asserts, Dr Weisss opinion that appellant planned his actions is strong evidence that appellant acted with premeditation and deliberation and had the specific intent to commit robbery, and therefore possessed the mental state required for first degree murder.

However, the record contains ample properly admitted evidence on this point from other sources. First, the People presented evidence that appellant made certain statements in the hours leading up to Colossios murder: Cox testified that in response to Reeds statement that Colossio was a child molester, appellant said [t]hat we should kill [Colossio] and that they were going to take him and kill him; Watson testified that appellant asked Watson for a weapon; and Peacock testified that appellant said, I have to go take care of a child molester. In addition, Officer Morgans testimony regarding statements appellant made while in custody, after Colossio was killed, regarding appellants participation in the planning to rob Colossio, provides further support for the proposition that appellant had the capacity to premeditate and deliberate at the time of the instant offense.

Moreover, putting aside the question of premeditation and deliberation, Officer Morans testimony regarding appellants statements constitutes strong evidence that appellant acted with the specific intent to rob Colossio, and was therefore guilty of first degree murder on a felony murder theory.

Appellant argues that the evidence tending to prove appellant acted with premeditation consists in large part of the testimony of unreliable witnesses. We recognize Watson, Peacock and Cox were admitted methamphetamine users; Watson and Cox had ingested methamphetamine near the time of the incriminating statements about which they testified; and several additional factors cast doubt on Coxs veracity. She had suffered a prior conviction of aggravated assault, she was an admitted methamphetamine dealer and when interviewed by police in December 2003, she had difficulty identifying a photograph of Colossio. However, Cox and Peacock corroborated each other to some extent, in that both referred to appellants antipathy toward child molesters. And most significantly, the testimony of Officer Morgan, whose veracity appellant does not challenge, is, as demonstrated above, strong evidence that appellant had the mental state required for first degree murder. On this record, appellant has not met his burden of establishing that had Dr. Weisss opinion evidence been excluded, a result more favorable to appellant was reasonably probable.

Appellant also argues that he was denied his right to effective assistance of counsel by his counsels failure to object to the medical records evidence adduced on recross-examination of Dr. Weiss. This evidence, appellant argues made it appear [he] was bloodthirsty, violent and sadistic, and was inadmissible under Evidence Code sections 352,^[4]because it was unduly prejudicial, and 1101, subdivision (a),^[5]because it constituted improper character evidence. Again, we assume without deciding that counsels failure to object to the evidence in question was not objectively reasonable, and we proceed directly to the prejudice portion of the ineffective-assistance-of-counsel inquiry.

As summarized above, there was ample evidence that appellant participated in and, indeed, was the perpetrator of Colassios murder, including evidence that appellant admitted that he was sticking Colossio and, that after Colossio tried to defend himself, appellant started sticking him some more. We note also that in closing argument defense counsel acknowledged that the photograph of Colossio admitted into evidence was just very, very difficult to see . . . . In our view, is not reasonably probable that the medical records evidence added appreciably to the jurors view of appellants propensity for violence. Appellant has not met his burden of establishing that counsels failure to object was prejudicial.

Abstract of Judgment and Sentencing Minute Order

As appellant notes, although the court sentenced appellant to 25 years to life in prison, the sentencing hearing minute order indicates a sentence of 25 years to life without possibility of parole and the abstract of judgment similarly indicates a sentence of life without possibility of parole. We will direct the trial court to issue an amended abstract of judgment and an amended minute order correcting these errors, and to send a certified copy of each document to the Department of Corrections.

DISPOSITION

The trial court is directed to (1) issue an amended abstract of judgment and an amended sentencing minute order, with each document to indicate that appellant was sentenced to 25 years to life in prison, and (2) send a certified copy of each of these documents to the Department of Corrections. As modified, the judgment is affirmed.

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^*Before Vartabedian, Acting P.J., Wiseman, J., and Cornell, J.

^[1] Further references to dates of events are to dates in 2003.

^[2] The defense subsequently retained Dr. Weiss as an expert witness.

^[3] We refer to the evidence summarized in this paragraph as the medical records evidence.

^[4] Evidence Code section 352 provides: The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.

^[5] Evidence Code section 1101, subdivision (a) provides, in relevant part, that, with exceptions, evidence of a persons character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.