P. v. Reszetylo

Filed 2/11/10 P. v. Reszetylo 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 San Bernardino County, Douglas M. Elwell, Judge. Affirmed.

Daniel J. Kessler, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Robin Derman and Theodore M. Cropley, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Introduction

A jury convicted Linda Reszetylo (Appellant) of the attempted willful, deliberate, and premeditated murder of Nancy Terry (Pen. Code,  664, 187, subd. (a), 1192.7, subd. (c)).[1] The jury found true the special allegations that in committing attempted murder, Appellant discharged a firearm proximately causing Terry great bodily injury within the meaning of Penal Code section 12022.53(d), personally and intentionally discharged a firearm within the meaning of section 12022.53(c), and personally used a firearm within the meaning of section 12022.53(b). The trial court sentenced Appellant to life in prison with the possibility of parole and imposed a consecutive sentence of 25 years to life for the enhancement under section 12022.53(b). The court stayed imposition of sentence for the other two enhancements.

Early in the case, Appellant prepared for her then attorney a written statement setting out the facts she intended to present in her defense. Without Appellants permission, her attorney turned that statement over to the prosecution, which shared the document with an expert witness and the victim. Appellant had different counsel at trial, who asserted the attorney‑client privilege just before Appellant was to testify. The trial court concluded the attorney‑client privilege, if it existed, had been waived and permitted the prosecutor to use the statement to impeach Appellants trial testimony.

Appellant contends the trial court erred by concluding the attorney‑client privilege had been waived and by permitting the prosecutor to use the statement to impeach her testimony. Alternatively, she argues her trial counsel was ineffective for giving the statement to the prosecution and for not asserting the attorney‑client privilege earlier.

The statement prepared by Appellant appears to have been a confidential communication between attorney and client for purposes of the attorney‑client privilege. But our thorough examination of the record compels our conclusion that any error in finding the privilege had been waived and in permitting the prosecutor to use the statement in a few areas of impeachment was harmless. Appellants trial testimony was largely consistent with her written statement. We need not decide whether counsels conduct was deficient because we similarly conclude any deficiencies did not result in prejudice. Accordingly, we affirm.

Facts

I.

Prosecution Evidence

A. Appellants Financial and Personal Relationship with Terry

Terry, a financial advisor and stockbroker, met Appellant, also a stockbroker, in 1996 when they both worked at Morgan Stanley. They became close friends and confidants.

In December 2002, Terry began working with Appellant at LPL Financial Services (LPL) in Claremont. They had an oral agreement by which Terry would pay Appellant a percentage of Terrys net commissions up to a certain dollar amount in exchange for an office, a computer, and a sales assistant. Appellant knew Terrys password for stock trading and knew how to trade on Terrys account.

The sales assistant and LPL office manager was Betsy Saunders, who was Appellants life partner. Terry and Saunders also became good friends. In late 2002 or early 2003, Appellant and Terry began a casual love affair that lasted until Terry was shot. Appellant enjoyed gambling, and Terry would often go out gambling with her.

Terry completely trusted Appellant and Saunders. Terry named Appellant and Saunders her personal representatives in her will and trustees of the Terry Family Trust, and appointed them under her advanced health care directive.

B. Appellants Financial Problems

In September 2004, Appellant was fired from LPL, lost her stockbrokers license, and lost her computer password for trading stock. The agreement between Appellant and Terry did not change, and Terry continued to pay a percentage of her commissions to Appellant. Terry was, to her knowledge, Appellants sole source of income. Appellant and Terry remained friends and lovers.

Despite losing her job with LPL, Appellant kept a key to the Claremont office and knew Terrys password for trading stock. Terry maintained two personal accounts: a retail account and an IRA account. By April 2005, Terrys retail account had a value of about $3,000 and her IRA account had a value of about $500,000. Funds could be withdrawn from the retail account at any time. Funds could be withdrawn from the IRA account only through a process, called journaling, by which funds would be transferred from the IRA account to the retail account. As a stockbroker, Appellant knew how to journal funds.

The agreement between Appellant and Terry came up for renewal in June 2005. Terry did not plan to renew the agreement because most of Appellants clients had become her clients and she intended to take over the lease to the Claremont office.

By April 2005, Appellant was having financial problems. Morgan Stanley was suing her for $2 million and she had $200,000 in credit card debt. She ultimately filed for bankruptcy.

C. Terry is Shot.

On April 15, 2005, Appellant arrived at Terrys house to stay for four nights. Appellant brought an overnight bag and oxygen (needed for her medical condition). Packed inside the overnight bag were clothing, medication, hair care products, and latex gloves.

When Appellant stayed with Terry, they shared a bed. In a nightstand next to the bed, Terry kept an unloaded .38‑caliber handgun. Terry had never used the gun and did not know how to load it; she kept it because she feared the night stalker. Appellant knew how to shoot a gun and owned several guns. Earlier in April 2005, Appellant had asked Terry about buying the gun in the nightstand, but Terry refused. Sometime before then, Terry had caught Appellant loading the gun. Terry demanded that Appellant take the bullets out and never touch the gun again.

In the afternoon of April 18, 2005, after leaving work, Terry saw her psychiatrist, Dr. Donald Horowitz. She told Dr. Horowitz she was depressed because her beloved dog had died. In the past, she had been depressed and had contemplated suicide, and had spoken with Appellant about those issues, but was not contemplating suicide on April 18.

After her appointment with Dr. Horowitz, Terry withdrew some money from the bank, returned home, and went to bed about 9:30 pm. About an hour later, Appellant, who was agitated, woke Terry up and told her she had to leave for a while and would be back. Terry did not think that unusual because Appellant often drove to Palm Springs late at night to gamble. Terry got up and moved her car, which was parked behind Appellants car. After watching Appellant drive off, Terry parked her car in the garage and went back to bed.

Several hours later, Appellant again woke up Terry and asked her to move her car so Appellant could park in the garage. Terry moved her car and went back to bed.

Around 3:00 a.m. on April 19, Terry got up to use the bathroom. As she walked to the bathroom, she saw Appellant using a computer in the computer room. When Terry returned to the bedroom, she saw her handgun lying on the bed. She picked up the gun by the handle, walked into the computer room, and told Appellant, youre not to give this to anybody, youre not to touch this gun. Terry returned the gun to the nightstand drawer, shut the drawer, and went back to bed.

As Terry lay on her stomach with her left ear on the pillow, she suddenly felt as though an elephant had stomped on her head or as though she was experiencing an earthquake. She saw blue lights, lost control of her limbs, and shook. She managed to push herself up on her elbows, looked over, and saw Appellant standing less than an arms length away. Appellant looked at Terry and said, thats for those 10‑hour massages. Appellant was not holding a gun. Terry fell backwards and passed out.

When Terry woke up later, the lights were on and she saw Appellant talking on the telephone. Terry yelled, Linda. Appellant looked at Terry and said nothing. Terry asked, why did you shoot me? Appellant responded, lay down and go back to sleep.

The next time Terry awoke, she heard Appellant and Saunders talking in the computer room but could not understand what they were saying. Terry called out Linda several times and said, call 911. Appellant replied: I tried calling 911, and the phones dont work. Go back to sleep. Terry fell back asleep.

When Terry woke up later, she tried to get out of bed to get to the telephone and dial 911, but she had no feeling in her feet and fell onto the floor. As she sat on the floor with her head leaning against the bed, Appellant walked into the bedroom and said: [W]hat do you think youre doing? Get back in bed. Go back to sleep. After helping Terry back into bed, Appellant left the room. Terry called to Appellant, and when she returned to the bedroom, Terry said, I think Im dying; please call 911. Appellant replied: I called 911 several times and theyre busy. Theyre not coming. Go back to sleep. Terry fell asleep.

Terry woke up again and saw Appellant and Saunders leaving the bedroom with Appellants overnight bag. Terry lay still until it was quiet, then climbed out of bed. Holding onto anything she could, she struggled to the kitchen, where she threw herself at the telephone and dialed 911.

D. Terry is Taken to the Hospital

The 911 operator received Terrys call at 12:18 p.m. on April 19, 2005. No other 911 calls had been received from Terrys telephone up to that point on April 18 or 19.

Paramedics soon arrived and found Terry propped up against a wall. There was a large amount of dried blood on her head, nightgown, right shoulder, and chest. She told the paramedics she did not know what had happened to her. By then, Saunders had returned to Terrys house but had not dialed 911. As the paramedics loaded Terry into an ambulance, Saunders held her hand and said, remember we love you. Saunders told the paramedics she would secure the house. She knew Terry owned a gun but did not tell the paramedics.

The medical examination revealed that Terry had been shot at close range at her right ear. The bullet entered near Terrys right earlobe, traveled through the soft tissue of the brain, exited the right side of the skull, passed through the soft tissue of her neck, and exploded out of the left side of her neck.

It was highly unusual that Terry survived. Dr. James Fisgus, who treated Terry in the emergency room, testified that, if the gunshot wound were self‑inflicted, Terry would be the only survivor of a self‑inflicted gunshot wound to the head he had seen in 26 years as an emergency room physician. He had never seen a bullet trajectory from a self‑inflicted wound like the one in Terrys head.

Terry remained in the intensive care unit of the hospital for some time. Terry was later transferred to a rehabilitation center, where she stayed until September 2005. When she arrived, she could not control her bodily functions or bathe herself, needed assistance to use the bathroom, and suffered from dizziness and double vision. She had to relearn how to walk, speak, write, do mathematics, feed herself, shop, and be among other people. She saw a psychologist because she suffered nightmares and insomnia. In January 2006, she was able to resume working part time as a stockbroker.

E. Appellant Is Taken to the Same Hospital

Later in the afternoon of April 19, Virginia Lamb arrived at Terrys house to clean it. Saunders met her at the house and then left. Lamb noticed the master bedroom door was locked, which was unusual, so she unscrewed the doorknob to gain access. She peered in and saw blood and a gun. Frightened, she replaced the doorknob in the door without screwing it in and left the house. Lamb called Saunders and said something horrible had occurred.

Saunders returned to her house to find Appellant with a wounded leg. At 3:20 p.m. on April 19, Saunders dialed 911, and police and paramedics soon arrived. The police officers saw what appeared to be a bullet wound in Appellants right calf. The wound was clean and was not bleeding. Appellant told the officers that Terry had shot her and immediately afterwards shot herself. Appellant was taken by ambulance to the same hospital to which Terry had been taken.

When Appellant arrived at the hospital at 4:38 p.m. on April 19, she reported that about 4:00 a.m. earlier that day, she heard a pop and a crack and felt a slight sting in her right leg, but did not think much about it. Dr. Fisgus reviewed Appellants emergency room records and testified her leg wound was superficial and appeared as though it had occurred only a few hours earlier. Although not a serious wound, it would have hurt significantly. Based on the bullets trajectory, Dr. Fisgus believed Appellants gunshot wound was self‑inflicted. Appellant was treated with a tetanus shot and antibiotics, and was discharged at 7:49 p.m.

F. Police Interviews and Investigation

The emergency room physicians notified the police when they determined Terry had been shot. Police Officer Carlos Flores arrived at the hospital and spoke with the surgeon, who showed him Terrys X‑rays. Flores also spoke with Terry, but she drifted in and out of consciousness, her speech was slurred, and she could not remember anything from after about 8:00 p.m. on April 18. Later, after calling for detectives, Flores spoke with Terry again. This time, though her memory remained foggy, she recalled arguing with Appellant about one shooting the other and about who was going to call 911. Flores asked Terry if Appellant had shot her, and she replied she did not think she would do something like that. Terry denied shooting herself and told Flores she had thought about committing suicide in the past but was too much of a coward to follow through with it. Gunshot residue was found around Terrys ears and face.

Ontario Police Detectives Robert Marquez, David John Rowe, and Billy Joe Lee were dispatched to the hospital to investigate the shootings. Marquez interviewed Terry. He noticed she had a bullet exit wound on the left side of her neck, bruises on her knees, and a laceration on her ankle. Although Terry was in a great deal of pain and had difficulty communicating, she told Marquez what she remembered. Terry said she had arrived home about 8:00 p.m. on April 18 and had fallen asleep on the bed with Appellant. When she woke up about 6:00 a.m., she had a lot of pain in her head. She saw her handgun on the bed and, looking up, saw Appellant standing over her. Appellant said she had called the paramedics and they were on the way. After Appellant left the room, Terry tried to get out of bed and fell onto the floor. Although she felt like she was going to die, she crawled to the kitchen and dialed 911. She adamantly told Marquez she had not tried to kill herself.

Terry explained her financial arrangement with Appellant, but did not believe anyone would want to kill her for money, and told Marquez that Appellant knew the handgun was kept in the nightstand. Terry expressed concern over her dogs and told Marquez she would pay $60,000 to anybody who would take care of them if anything happened to her.

Meanwhile, Rowe interviewed Saunders at the hospital. Saunders told him that Appellant called her between 4:00 and 5:00 a.m. on April 19 to say that Terry had shot Appellant and then shot herself. When the call ended, Saunders immediately went to Terrys house. After arriving at the house, she did not call the paramedics because Appellants injury did not appear to be serious. Saunders was afraid of Terry because she had a gun and therefore did not go into the bedroom to check on her. Saunders stayed at Terrys house for about 45 minutes then left to run unspecified errands. After completing the errands, Saunders received a call from Lamb, who was going to clean Terrys house that day. Saunders drove to Terrys house because she was concerned Lamb would be afraid about what she would see there. While knocking on a side door at the house, Saunders saw Appellant drive away. Saunders followed in her car and caught up with Appellant down the street. Appellant told Saunders to go back to Terrys house and wait for Lamb.

Lee had the task of interviewing Appellant, who told him the following. Appellant and Terry stayed at their office in Claremont until about 2:00 a.m. on April 19. They returned to Terrys house, where Terry went to bed and Appellant went to the computer room. While working on the computer around 4:00 a.m., Appellant heard a crack or a pop come from another room. A few moments later, Terry was standing in the doorway of the computer room and screaming. After a few minutes, Terry walked back into the bedroom and closed the door. Appellant heard another crack or pop. She walked into the bedroom to see what happened and saw a large amount of blood on the bed and the handgun. Rather than dial 911, Appellant called Saunders because she t[ook] care of the problems.

Lee conferred with Rowe, and then interviewed Appellant again. This time, Lee told Appellant he believed Saunders might have shot Terry in jealous anger. Appellant stared at Lee for about 15 seconds then told him that did not happen.

As Appellant stood next to her car after being discharged, Rowe detained her to ask more questions. When Rowe told Appellant she could not leave in her own car, she became angry and called a taxi. Rowe physically blocked the door to the taxi and told Appellant she could not leave. Appellant yelled at Rowe to arrest her or let her go. He arrested her.

Police officers searched Appellants house and found numerous credit card bills totaling nearly $200,000, an unloaded rifle under Appellants bed, a loaded handgun inside of an antique clock, and a gun club membership card. Appellant told the police the guns were hers. At the foot of Appellants bed were some drops of blood, and draped over a pillow on the bed was a towel with small amounts of blood on it. Next to the pillow was a plastic bag containing paper towels with blood on them.

Rowe and Marquez carefully searched the computer room in Terrys house and found no blood or anything else indicating someone had been shot in that room.

G. Craig Peterss Testimony

Craig Peters, a forensic specialist with the Ontario Police Department, had Appellant, Saunders, and Terry swabbed for gunshot residue. A gunshot residue analyst found no gunshot residue on Terrys hands or Appellants hands. Gunshot residue was found on the right side of Terrys head and a few particles of gunshot residue were found on Saunderss left hand. Peters searched Terrys house and found a .38‑caliber handgun with .38 SP long bullets in it and two spent casings in the cylinder. He swabbed the gun for DNA, and criminalist Monica Siewertsen identified Terrys DNA on the gun. Peters found no strike marks in the house and found only one bullet. He found no suicide note.

Peters searched Appellants car and, in the wheel well of the trunk, found a box of Winchester .38‑caliber SP long bullets with six bullets missing. The bullets were the same type as found in Terrys gun.

Peters examined Terrys gun and found no high energy spatter. He explained he would expect to find high energy spatter on a gun used for suicide because the gun likely would be within arms length of the target. Based on the lack of high energy spatter, Peters believed the gun was 12 to 16 inches from Terrys head when fired. Although the gun appeared to have been wiped off, wiping off the gun likely would not have removed high energy spatter from inside the barrel and cartridge and on the tips of the bullets. Peters believed the gun was laid on the bed after it had been wiped because he saw no evidence that blood from the gun had transferred onto the mattress at the place on the bed where the gun had been placed.

H. Saunderss Testimony

Saunders testified she had been Appellants life partner for 35 years, she was Terrys good friend, and she had worked with Appellant and Terry as the office manager at LPL. Saunders learned Appellant and Terry were in a sexual relationship at the time of the shooting. Saunders knew that in April 2005 Appellant was heavily in debt to credit card companies.

Saunders testified that, between 4:00 and 5:00 a.m. on April 19, 2005, she received a telephone call from Appellant, who said she needed help and to come quickly to Terrys house. When Saunders arrived at Terrys house, she did not see Terry, and found Appellant sitting alone in the computer room. Appellant, shaking and pale, said, I think Nancy shot me. . . . Its burning. Its burning. [] . . . My leg. My leg. Saunders looked down and saw holes in Appellants right pant leg. She did not see any blood. Saunders helped Appellant remove her pants and saw what she thought were two gunshot wounds. Saunders asked where Terry was; Appellant replied she was in the bedroom and had a gun.

Saunders sat down to figure out what she should do. She considered dialing 911 but did not do so because she saw nothing urgent about Appellants wound.

Saunders got up and, as she walked toward Terrys bedroom, heard Terry yell Linda[,] Linda. When Appellant yelled that Terry had a gun, Saunders became scared. As Saunders pondered what to do next, Appellant said to her: I never should have called you. Go, go, just go. Sanders left. She had been at Terrys house for about 40 minutes.

Saunders returned home. She did not call the police or paramedics but paced around her house. Later that morning, Saunders received a call from Lamb, Terrys housekeeper, who was looking for Terry. Lamb explained she was planning to clean Terrys house that day even though it was not the usual cleaning day. Saunders said she did not know where Terry was.

After Lamb had called Saunders a couple more times, Saunders decided to return to Terrys house. As Saunders tried to enter Terrys house, she saw Appellant drive away. Saunders got into her car and followed Appellant until she pulled over. Pale and shaking, Appellant said, I got to get away. I got to get away. Im so afraid.

Appellant looked terrible, but Saunders did not dial 911. Though afraid of Terry, Saunders decided to check on her and calm her down. Saunders was parking her car at Terrys house just as a fire truck and ambulance arrived. After the paramedics had taken Terry to the hospital and everyone else had left, Saunders entered the house to check on Terrys dogs, but did not go into the bedroom. After a short while, Saunders met Lamb outside when she arrived to clean the house. They discovered Saunders had locked her car keys inside the car with the engine running. The automobile club arrived and unlocked Saunderss car, and she drove home without telling Lamb what had happened.

Saunders arrived home and found Appellant in bed. Her injured leg had started to bleed and she looked terrible. Saunders tried to clean the wound, but realized Appellant needed medical attention and called 911. The 911 call was placed about 3:20 p.m. Paramedics and police soon arrived.

I. Trades on Terrys Accounts/Terry Denies Shooting Appellant

At the time of the shooting, Appellant had access to Terrys checks and the debit card linked to Terrys money market account. Computer records showed trades were placed on Terrys retail money market account or IRA account about 11:51 p.m. on April 18 and at 12:41 a.m., and 6:31 a.m. on April 19, 2005. All of the stocks in both accounts were ordered to be sold. The total value of stocks sold out of Terrys retail money market account and IRA account on the morning of April 19 was $466,182.35. Terry neither sold any of her stock nor authorized any trades on her account on April 18 or 19, 2005.

At trial, Terry denied shooting Appellant or even pointing a gun at her. Terry denied trying to kill herself that night; she had made future plans, including a trip to Indiana for a reunion, had just paid her taxes, and had made another appointment with her psychiatrist.

II.

Defense Evidence

A. Appellants Testimony

Appellant testified in her defense. She testified she suffered from chronic obstructive pulmonary disease, emphysema, chronic bronchitis, an enlarged heart, and brain aneurysms.

At the time of the shootings, Appellant and Terry were involved in a love affair. Appellant claimed Terry owed her $152,500, of which $150,000 was from their business agreement.

On Friday, April 15, 2005, Appellant drove to Terrys house to stay with her for four days. During that stay, Appellant and Terry discussed Appellant leaving the business and the amount Terry owed Appellant under their agreement. On Saturday night, April 16, Appellant and Terry went to the LPL office, where Terry was going to sell enough stock to pay Appellant the money owed her. Appellant waited in the car while Terry went inside the office to make the trades. After about an hour, Terry returned to the car agitated and upset. She had not sold the stock.

In the afternoon of Monday, April 18, Terry returned home and took medication because she was not feeling well. Appellant asked her if she told Dr. Horowitz she was feeling suicidal. Terry did not answer. When Appellant said she would tell Dr. Horowitz herself, Terry became upset and went to bed, turned her back toward Appellant, and fell asleep. They fell asleep together about 5:00 p.m.

They woke up between 8:30 and 9:00 p.m., drank some coffee, and talked about going back to the LPL office so Terry could sell some of her stock. After eating, they drove to the LPL office. Again, Appellant waited in the car while Terry went inside to sell her stock. After two hours had passed, Appellant went inside and asked Terry if she had sold the stock. Terry did not answer and began swearing at Appellant. Without creating a printout of the transactions, Terry left the office and returned to the car. Appellant printed the transaction information and closed the office. While walking to the car, Appellant reviewed the transaction information, which appeared to show that Terry had sold all of her stock. Back in the car, Appellant asked Terry why she had sold all of her stock. She replied that she had intended to do so several months earlier. They both cried, then drove back to Terrys house.

As Appellant drove into Terrys driveway, Terry jumped out of the car and shut the gate behind her, knowing Appellant was not able to open it. Appellant used her cell phone to call Terry and asked her to come back out and open the gate. Terry appeared in a bathrobe and forcefully opened the gate. Terry walked back into the house and went to the bedroom while Appellant went to the computer room and watched television.

About 5:00 a.m. on April 19, Terry walked into the computer room and leaned against Appellant, who was standing in front of the computer. Appellant heard a crack. Terry left. Appellant fell and crawled to a chair where she sat down. She realized Terry had shot her in the leg.

Appellant soon heard another crack, this time coming from the bedroom. She thought it was a gunshot, perhaps Terry had tried to hurt herself. Appellants legs were shaking; she was dizzy, sweating profusely, and scared. Not finding a telephone in the computer room, Appellant decided to use the red telephone in the bedroom. When Appellant walked into the bedroom, Terry was lying on the bed, making a snoring sound. Rather than dial 911, Appellant called Saunders and told her, we need help, we need help. Appellant was terrified of Terry because she was mentally ill and hurriedly left the bedroom.

Appellant walked back to the computer room and passed out in a chair. Saunders arrived and awakened her. While showing Saunders part of the gunshot wound, Appellant said she thought she had been shot or Terry hit her with something. Appellant told Saunders, [p]lease, please, please, dear God, dont go in there because she has to have a gun. They did not dial 911.

When Terry started calling out Linda, Linda, Linda, Appellant froze. She said she would call 911 and asked Saunders to leave. Saunders took the overnight bag and left the house. Appellant peered into the bedroom and saw Terry. Appellant heard the sound of glass breaking and thought perhaps Terry, who started calling out Appellants name again, was breaking bottles of perfume that Appellant had bought her. Appellant spotted a portable telephone in the computer room and tried to use it to dial 911, but the telephone battery was dead.

After Terry called out Appellants name a few more times, Appellant walked into a hallway, looked into the bedroom, saw Terry sitting on the floor at the foot of the bed, and saw the gun. Appellant asked, Nancy, why did you shoot me? Terry replied, [y]ou shot me and Im going to shoot you in your heart. At that point, Appellant left Terrys house.

As Appellant was driving away from Terrys house, Saunders came out from the side of house and the two spoke brieflypossibly about the fact Lamb was coming that day to clean Terrys house. Appellant then drove home, and Saunders followed her.

When Appellant walked into her house, she noticed her leg had started to bleed, so she removed her clothes and put them in the washing machine. She had got blood on the robe she had been wearing, which was Terrys robe, and left it in the guest bedroom. She slipped, got up, and walked to her bedroom, where she fell into bed after taking Xanax and Vicodin.

The fire department and detectives later arrived. Appellant was transported to the hospital, treated, and released the same day. She was arrested on her release from the hospital, and soon released from custody.

Appellant testified she did not know Terrys computer password, could not access Terrys brokerage account, and could not access any LPL brokerage account. As trustee of Terrys trust, Appellant would not receive any money from the trust if Terry died.

Appellant acknowledged that at the time of the shooting she owed $200,000 on credit cards, and though she did consider herself to be, at the time, somewhat in financial straits, the debt did not concern her. After her termination from LPL in September 2004, Appellant lived off of savings, her brother, and what Terry paid her. After the shooting, she sold her home, which left her about $200,000 in net proceeds. The criminal prosecution caused Appellant to seek bankruptcy protection. Terry was not listed as a creditor on the bankruptcy schedules, which were prepared by Saunders.

Appellant testified the bullets found in the wheel well of her car trunk were left over from when she and Terry had gone to a firing range a year earlier.

B. Dr. Horowitzs Testimony

Terrys psychiatrist Dr. Horowitz testified for the defense. He testified he had treated Terry since June 2004 for major depression and panic disorder. When Terry saw Dr. Horowitz on April 18, 2005, she was cynical and depressed and looked as though she had the weight of the world on her shoulders. She told Dr. Horowitz for the first time she did not care whether she lived or died. His notes for the session did not, however, indicate whether Terry made that statement.

Dr. Horowitz counseled her on taking her medications properly, which she had not been doing. As of April 18, Terry was taking quite a few medications Dr. Horowitz had not prescribed and, at the time, did not know she was taking. If Dr. Horowitz knew that Terry had a gun in her house, he would have made arrangements to dispose of it.

Dr. Horowitz believed that Terry has what is called passive suicidal ideationmeaning she would not take her own life, but if God took her or struck her down right then that would be okay.

C. Lance Martinis Testimony

Lance Martini, a forensic firearms expert, studied photographs and, using a gun similar to that used to shoot Terry, performed a number of tests to determine the distance between the gun and Terry when she was shot. He concluded the barrel of the gun was between one and four inches from Terrys ear when fired. He testified he would not expect to find blood inside the barrel of the gun after it was fired, and FBI studies show that gunshot residue does not appear on the hands of 19 to 60 percent of people who commit suicide with a gun.

Discussion

Appellant contends the trial court erred by concluding the attorney‑client privilege had been waived as to a written statement she had prepared early in the case and by permitting the prosecutor to use the statement to impeach her testimony. Alternatively, she argues her trial counsel was ineffective for giving the statement to the prosecution and for not asserting the attorney‑client privilege earlier.

I. Background

Sometime around June 1, 2005, before the preliminary hearing, Appellant wrote a statement about the events of the case for her original attorney, Antonio Bestard. On June 1, 2005, Bestard sent the statement, unsolicited, to the district attorney. Appellant did not authorize Bestard to send the statement to the district attorney. Bestard subsequently withdrew as Appellants counsel, and she thereafter was represented by the public defender. The prosecutor sent a copy of the statement to Appellants new counsel, Mr. Daroca, and provided copies of the statement to Terry and to the prosecutions forensic expert.

At trial, Appellant was represented by Lee Sonnenberg. On April 15, 2008, just before Appellant was to testify, Sonnenberg asserted the attorney‑client privilege, arguing, [Appellant] should not be able to be impeached should she testify, and should she testify to some things different [sic] th[a]n whats contained in this report.

After an unreported in‑chambers conference, the trial court determined that if the statement were protected by the attorney‑client privilege, the privilege had been waived. The court permitted the prosecutor to cross‑examine Appellant with the statement if she chose to testify.

During Appellants cross‑examination, the prosecutor used the statement to impeach Appellant in the following respects:

In her statement, Appellant wrote she was up to [her] neck in debt. Appellant did not deny that at trial but testified she did not think the debt was a big deal because she had paid off debt of that amount before.

In her statement, Appellant wrote she took gloves to Terrys house when she went there on April 15, 2005 to stay for four days. At trial, Appellant did not deny taking gloves and testified she took gardening gloves. Appellant denied bringing latex gloves, but that was not inconsistent with her statement, which merely said gloves.

In her statement, Appellant wrote that after Terry was shot, Saunders went into her bedroom and took Appellants overnight bag. On direct examination at trial, Appellant testified that Saunders took my overnight bag but was not sure when she took the bag. When impeached with her statement on cross‑examination, Appellant first testified it was not true that Saunders went into Terrys bedroom and took her overnight bag. She then testified, I remember [Saunders] took my overnight bag and some oxygen and said okay, then testified she did not know whether Saunders took the overnight bag. She then testified, [n]one of my stuff was in [Terry]s room. Ultimately, when asked if it was true that after Terry was shot, Saunders went into her bedroom and took Appellants overnight bag, Appellant responded, I cant answer that. I dont know.

In her statement, Appellant wrote that she and Terry went to the LPL office between 10:30 and 11:00 p.m. on April 18, 2005. Appellant testified at trial that she and Terry arrived at the LPL office between 9:30 and 10:00 p.m. On cross‑examination, Appellant denied her statement was true. (The significance is that trade confirmation reports show that Terrys stock was sold at around 11:00 p.m.)

In her statement, Appellant wrote that Terry usually slept in a fetal position. On cross‑examination, Appellant testified that Terry often slept on her back.

In her statement, Appellant wrote that after hearing the gunshot, she heard Terry call out, Linda, Linda, Linda, help me. On direct examination, Appellant testified that Terry called out, Linda, Linda, Linda. On cross‑examination, Appellant testified that Terry might also have said help me but confirmed Terry said her name three times.

The jury was instructed that it could consider a witnesss prior inconsistent statements in assessing credibility.

II.

Appellant Suffered No Prejudice from
Use of Her Statement at Trial

The statement prepared by Appellant appears to have been a confidential communication between client and attorney within the meaning of Evidence Code section 952. The communication is presumed to have been made in confidence as it was undisputed Appellant wrote the statement to her original trial counsel at his request. (Evid. Code,  917(a).) The prosecution produced no evidence to meet its burden, as the opponent of the privilege, of establishing the statement was not confidential. (Ibid.)

The Attorney General asserts the statement was not a confidential communication because it was prepared with the intent of giving it to the prosecutor for settlement negotiations. There is no evidence in the record to support that assertion; that the statement was prepared to facilitate settlement discussions was merely a surmise which the trial court did not accept. Further, there is nothing in the record to suggest Appellant knew or authorized the disclosure or to explain counsels reason for it.

We need not decide, however, whether the trial court erred in finding the attorney-client privilege had been waived, or whether trial counsels performance was deficient, because, in either case, we find no prejudice. The trial courts finding the attorney-client privilege had been waived, if erroneous, is subject to a harmless error standard of Peoplev.Watson (1956) 46 Cal.2d 818, 836 (Watson). (See People v. Canfield (1974) 12 Cal.3d 699, 707‑708 [error in receiving evidence in violation of attorney‑client privilege is reviewed under Watson standard].)[2] To prevail on a claim of ineffective assistance of counsel, Appellant must prove her attorneys representation, if deficient, subjected her to prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Cain (1995) 10 Cal.4th 1, 28.)

The Watson standard is whether it is reasonably probable a result more favorable to the appealing party would have been reached in absence of the error. (Watson, supra, 46 Cal.2d at p. 836.) Prejudice necessary to establish ineffective assistance of counsel means a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. (Strickland v. Washington, supra, 466 U.S. at p. 694; People v. Salcido (2008) 44 Cal.4th 93, 170.)

Had Appellants statement not been disclosed to the prosecution, or had the trial court not permitted the statements use at trial, it is not reasonably probable the jury would have reached a different verdict. Appellants testimony was largely consistent with her written statement. Appellants attorney argued in closing: In fact, [Appellant] put her story in writing back in June 2005. She wrote it out and gave it to her attorney who then gave it to the district attorney. The district attorney has had that statement, her written statement, for almost three years now. She took the stand knowing that the D.A. had the statement and if she changed her story in any way she was going to get creamed by it. She did it anyways. She put what happened in writing and she stuck to it and nothing significant changed. Even through the course of the investigation of this case, she stuck to her story.

In several instances, the prosecutor failed to impeach Appellant with her statement. Appellant always acknowledged she was heavily in debt at the time of the shooting. In her statement, Appellant did not write that she packed latex gloves to bring to Terrys house, as the prosecutor suggested. Appellant wrote that she packed gloves, which was consistent with her testimony she packed gardening gloves. Appellants trial testimony that Terry called out Linda, Linda, Linda left out the words help me which appear in the statement. But Appellant did not deny Terry said help me, and, in both the statement and the testimony, Appellant related that Terry said Linda precisely three times. Finally, Appellant wrote in her statement that Terry usually, but not always, slept in a fetal position, which is not inconsistent with Appellants testimony that Terry sometimes slept on her back.

The prosecutor, to be sure, did successfully impeach Appellants testimony on the issue whether Saunders went into Terrys room to retrieve Appellants overnight bag after Terry had been shot and the time at which Appellant and Terry went to the LPL office. Ultimately, Appellant testified she did not know whether Saunders went into Terrys room, and denied her written statement that she and Terry were at the LPL offices between 10:00 and 11:00 p.m. on April 18, 2005. By finding Appellant guilty, the jury necessarily disbelieved her testimony.

But the large quantity of credible and solid evidence discrediting Appellants testimony and revealing improbabilities in her story leads us to conclude it is reasonably probable the jury would have disbelieved Appellant if her written statement had not been available for impeachment at trial. For example:

Police found one bullet in Terrys room but no other bullets or strike marks in the house.

Appellant claimed Terry shot her in the computer room, but police found no blood or other signs of a shooting there. Saunders testified she did not see any blood when she looked at Appellants leg in the computer room. No blood was found in Appellants car. Blood was found in Appellants bedroom.

Saunders, Appellants life partner, testified she did not go into Terrys bedroom. Saunders testified Appellant told her not to go into Terrys bedroom because Terry had a gun. At the hospital, Saunders told Police Detective Rowe she did not go into Terrys bedroom.

According to Appellant, after she walked into Terrys bedroom after hearing the second gunshot, she did not dial 911. She called Saunders instead. When Saunders arrived at Terrys house, neither Appellant nor Saunders dialed 911. Appellant testified she tried to dial 911 after Saunders left, but the telephone in the computer room was not operating. Appellant drove home, and had time and energy to remove her clothing and stuff it into the washing machine, but still did not dial 911.

Records showed that trades were placed on Terrys accounts about 11:51 p.m. on April 18 and at 12:41 a.m., and 6:31 a.m. on April 19, 2005. Under Appellants testimony, the final trade could not have been placed by Terry.

Dr. Fisgus treated Terry in the emergency room and testified that if her gunshot wound were self‑inflicted, she would be the only survivor of a self‑inflicted gunshot wound to the head he had seen in 26 years as an emergency room physician.

Dr. Fisgus testified the bullet trajectory through Terrys head was not consistent with a self‑inflicted gunshot.

Dr. Fisgus reviewed Appellants emergency room records and testified he believed Appellants wound was self‑inflicted and appeared as though it had occurred only a few hours before treatment.

Dr. Horowitz testified that Terry had told him on April 18, 2005 that she did not care whether she lived or died. But Dr. Horowitz also testified that Terry had passive suicidal ideation, meaning she would not take active steps to end her own life.

No suicide note was ever found. In the emergency room, Terry expressed concern over her dogs and who would take care of thema concern inconsistent with suicide.

A box of bullets was found in the wheel well of the trunk of Appellants car. The bullets were the same type as those found in Terrys gun. Six bullets were missing from the box.

Appellants firearms evidence and shooting reconstruction expert acknowledged the bullet trajectory through Appellants leg was inconsistent with Terry firing the gun from the doorway of the computer room. Based on the bullet trajectory through Appellants leg, the expert acknowledged the possibility Appellant shot herself while sitting with her leg held out.

When Appellant arrived at the hospital on April 19, she reported that at 4:00 a.m. that day, she heard a pop and a crack and felt a slight sting, but did not think much about it. At the hospital, Appellant told Police Officer Lee she heard a pop or crack from another room, and a few moments later, saw Terry standing in the doorway to the computer room. At trial, Appellant testified that Terry walked into the computer room, leaned against her, and shot her in the leg.

Peters testified he believed Terrys gun had been wiped off after being fired because he saw no evidence that blood from the gun had transferred onto the mattress at the place on the bed where the gun was placed.

Appellant, who needed oxygen and often a wheelchair, claimed she was standing in the computer room while watching the computer when Terry entered, leaned against her, and shot her in the leg.

This evidence was so utterly at odds with Appellants testimony that Terry had tried to commit suicide after shooting Appellant in the leg in the computer room that Appellant would have effectively been discredited without the written statement. Given these circumstances, we conclude Appellant suffered no prejudice if the trial court erred in permitting the prosecutor to impeach her testimony with her written statement, or if counsels performance were defective in giving the statement to the prosecution or not asserting the attorney‑client privilege earlier.

Disposition

The judgment is affirmed.

FYBEL, J.

WE CONCUR:

ARONSON, ACTING P. J.

IKOLA, J.

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[1] The designation of subdivision or subd. is omitted from citations because the use of parentheses surrounding a letter already establishes the reference to a subdivision.

[2] The trial courts ruling is not subject to the heightened standard of Chapmanv.California (1967) 386 U.S. 18 because a defendant does not have a constitutional right to testify free from impeachment. (McGautha v. California (1971) 402 U.S. 183, 215.) The trial courts ruling did not deprive Appellant of her constitutional right to testify on her own behalf and placed no arbitrary or disproportionate limitations on that right. (See Rock v. Arkansas (1987) 483 U.S. 44, 51‑53; People v. Gutierrez (2009) 45 Cal.4th 789, 821‑822.) The trial courts ruling was substantially the same as an evidentiary ruling based on the applicability or waiver of the attorney‑client privilege, and therefore was subject to the harmless error standard of Watson.