Filed 1/11/18 P. v. Hunter CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO


THE PEOPLE,
Plaintiff and Respondent,
v.
DARRELL HUNTER,
Defendant and Petitioner.

A147789

(San Francisco County
Super. Ct. No. 224111)


In re DARRELL HUNTER,
on Habeas Corpus. A151511

(San Francisco County
Super. Ct. No. 224111)

Darrell Hunter was convicted of making criminal threats. On his direct appeal, he contends the trial court erred in failing to give a jury instruction on unanimity and in denying his motion for a new trial based on ineffective assistance of counsel. He also raises the ineffective assistance of counsel claim in a petition for writ of habeas corpus, which we hereby order consolidated with the appeal. For the reasons explained herein, we conclude the relief sought in the petition must be granted. Accordingly, we will vacate the judgment and dismiss the appeal as moot.

STATEMENT OF THE CASE
Petitioner was charged by information filed on May 29, 2015, with one count of making criminal threats. (Pen. Code, § 422.) Due to a September 8, 2014 conviction for making criminal threats, it was alleged that petitioner committed a violent or serious felony while on felony probation (§ 1203, subd. (k)) and had suffered a prior conviction for a serious felony (§ 667, subd. (a)(1)) and a prior strike conviction (§ 667, subds. (d) & (e), 1170.12, subds. (b) & (c)).
After a jury trial, petitioner was found guilty of the charged offense on July 27, 2015, and the court found true the prior conviction allegations.
Petitioner filed a motion to continue sentencing in order to obtain a psychological evaluation to determine whether a mental condition played a part in the events underlying his conviction, and several continuances followed, apparently due to difficulties in obtaining additional mental health records of which defense counsel previously had been unaware. On February 8, 2016, petitioner filed a motion to reduce his offense to a misdemeanor (§ 17, subd. (b)) or strike his prior conviction (People v. Superior Court (Romero) (1996) 13 Cal.4th 497); the prosecution opposed both requests.
In a lengthy report dated February 7, 2016, Neuropsychologist Amanda Gregory concluded that petitioner had a “long history of mental health symptoms reflecting a Bipolar Disorder with prominent psychotic features” and that his “Bipolar Disorder played a role in his behavior in McDonalds.”
On February 24, 2016, based on Dr. Gregory’s report, petitioner filed a motion for a new trial on grounds of newly discovered evidence and ineffective assistance of counsel due to trial counsel’s failure to adequately investigate and consider petitioner’s mental illness as it pertained to his defense at trial. The prosecution opposed the motion, and the court denied it on March 11. On the same date, the trial court denied petitioner’s motion to reduce the felony conviction to a misdemeanor (§ 17, subd. (b)), granted his motion to strike his prior strike conviction and sentenced him to the lower term of 16 months plus five years for the prior serious felony conviction, a total prison term of six years and four months, with credit for 628 days of time served.
Petitioner filed a timely notice of appeal on March 14, 2016.
Petitioner filed a petition for writ of habeas corpus on June 9, 2017.
STATEMENT OF FACTS
Fernando Canul had been the manager of the McDonald’s restaurant on Fillmore Street in San Francisco for about four years. He described it as a very busy restaurant in a “difficult neighborhood” and testified that he called the police because of “unruly” people in the restaurant about 10 to 20 times a month.
About 7:30 a.m. on April 29, 2015, Canul was in his office when one of the employees told him there was someone in the lobby screaming profanities. Canul went out and saw a man he identified as petitioner screaming and disturbing customers. Canul asked petitioner to leave, saying he would have to call the police if he did not; petitioner ignored him and continued talking. As Canul got the phone and placed a call to the police, petitioner told him if he was calling the police, petitioner was not scared because the police could not do anything to him. He then said, “if he’s going to saw me outside and then kill me.” The prosecutor clarified, “So the defendant says, ‘If I see you outside, I’ll kill you,’ ” and Canul replied, “Yes.” Canul felt “very scared” because “the way he was talking to me, it’s like trying to reach me and hit me at that time.” Canul was also concerned for the other employees and the customers.
While Canul was on the phone with 911, petitioner said that if Canul continued the call, “he knows where I work and he knows how I arrive to work, and he could kill me if he wanted to.” On a recording of the 911 call, which was played for the jury, after Canul said there was someone in the lobby trying to hit him and “bothering the customer” and “he’s going to kill me he said,” petitioner can be heard saying, “Be scared when you come to work, be scared when you leave work—continuously calling the police on blacks—what for? Who told you to do it?” When the 911 operator asked whether the person had any weapons, Canul said, “no but I can see right now very, very aggressive.” Canul testified that at this point petitioner had started “pointing” at him in a way that made Canul feel that if petitioner could reach him, “he could hit me.” Petitioner, at six feet four inches tall, was taller than Canul. When petitioner said, “I’ll kill you,” Canul believed him because “I could see that he would be able to do such a thing by the way he was pointing at me, and because of the way he was talking. I could see he was an aggressive person.”
Petitioner left the McDonald’s while Canul was on the phone with 911, having been in the store about two minutes. Canul acknowledged on cross-examination that the 911 operator told him to lock the front door but that he did not do so, saying he was no longer afraid of petitioner after petitioner left. He also acknowledged that he did not tell the 911 operator he was in fear for his life or that petitioner was scaring him or his employees. The police arrived after petitioner had gone. Canul told the police officer that he did not want petitioner to come back and the officer told him he could get a restraining order, but Canul did not pursue that course. He testified, however, that he left work later than usual that day because he was “a little afraid that, if I went outside, that he would be there and he could do something to me.” Canul was scared from the time petitioner said “I’ll kill you” until petitioner left the restaurant.
Canul testified that he had seen petitioner before, inside the store and across the street, and he had called the police on petitioner once or twice previously, but petitioner had never before threatened to kill him. Asked whether petitioner had been allowed to stay in the McDonald’s on prior occasions, Canul responded “no,” explaining that “they [sic] never buy anything. And also because they only want to use the restroom. [¶] And when they’re there, they’re yelling at the customers, asking to open the door to the restroom.” Asked if he meant petitioner when he said “they,” Canul responded affirmatively.
Ronald Lobato was working at the drive through window at the Fillmore McDonald’s about 7:30 a.m. on April 29, 2015. He heard someone loudly yelling “bad words” in the lobby, distracting him from the order he was taking. He began to film the incident with his cell phone. On the video recording, which was played for the jury, petitioner can be heard berating Canul in profane language for calling the police, complaining that Canul was “trying to get me hurt by the cops” and “[p]olice don’t mean a black man or a minority no good.” Petitioner said, “Like I said, motherfucker, everyday you go to work bitch you better go to work scared. When you leave better be scared ‘cause you need to be all the times you call the police on people tryin’ to get ‘em hurt.” Canul testified that Lobato’s video captured most of the incident, but there was some “yelling at the customers and at the place where the orders are being taken” before the start of the video.
Lobato had seen petitioner yelling and being kicked out of the McDonald’s before, but had not previously taken out his phone to record the incidents; he did so this time because he was afraid. Asked if he heard petitioner threaten anyone, Lobato said, “Fernando maybe. Fernando.” He testified that the incident was “not out of the ordinary.”
The McDonald’s had a video surveillance system that kept film for about 30 days. When the police left on April 29, they said someone would come to get copies of the video. Around May 22, Inspector Victoria Sullivan received a request from the prosecutor’s office for the video from the McDonald’s, but when the officer who retrieved the video went to pick it up on June 10, he was not able to get it. On June 13, Sullivan emailed the prosecutor, “I guess video there only keeps for five days. Unfortunately, we were too late.”
Defense investigator Bret Stemme testified that he spoke with Canul once on the phone and twice in person. In the initial phone call on July 7, Canul said he did not remember the incident Stemme was asking about. An attorney fluent in Spanish interpreted during this phone call. On July 16, Stemme served Canul with a subpoena to have management explain why they did not respond to a prior subpoena for the footage from the McDonald’s surveillance camera and allowed that footage to be deleted. On July 17, Stemme met with Canul at the courthouse, joined by defense counsel for 15 or 20 minutes; the majority of the interview was without an interpreter, but an interpreter who happened to come by assisted with a portion of it. Canul initially seemed to not know what Stemme was talking about, then he remembered when shown the cell phone video (with audio muted). Canul estimated he had called the police on petitioner about six or seven times. Canul first said petitioner did not threaten him, then later said he “believed that [petitioner] may have threatened him.” He also said he thought petitioner might have threatened Lobato. Canul said that he believed petitioner said he would kill him (Canul) when Canul left McDonald’s but that “he could not remember hearing those words specifically.” At one point Canul said that he thought petitioner was just a person acting strange and did not intend to hurt anyone. He said that he felt obligated to call the police because he could not guarantee the safety of himself or his employees.
DISCUSSION
I.
Petitioner contends the trial court erred in failing to instruct the jury on the requirement of unanimity. In a criminal case, a jury verdict must be unanimous and the jury “must agree unanimously the defendant is guilty of a specific crime.” (People v. Russo (2001) 25 Cal.4th 1124, 1132.) “As a general rule, when violation of a criminal statute is charged and the evidence establishes several acts, any one of which could constitute the crime charged, either the state must select the particular act upon which it relied for the allegation of the information, or the jury must be instructed that it must agree unanimously upon which act to base a verdict of guilty. (People v. Diedrich (1982) 31 Cal.3d 263, 281.)” (People v. Jennings (2010) 50 Cal.4th 616, 679 (Jennings).) “The prosecution can make an election by ‘tying each specific count to specific criminal acts elicited from the victims’ testimony’—typically in opening statement and/or closing argument.” (People v. Brown (2017) 11 Cal.App.5th 332, 341.)
The requirement of unanimity as to the criminal act “is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.” (People v. Sutherland (1993) 17 Cal.App.4th 602, 612.) “For example, in People v. Diedrich, supra, 31 Cal.3d 263, the defendant was convicted of a single count of bribery, but the evidence showed two discrete bribes. We found the absence of a unanimity instruction reversible error because without it, some of the jurors may have believed the defendant guilty of one of the acts of bribery while other jurors believed him guilty of the other, resulting in no unanimous verdict that he was guilty of any specific bribe. (Id. at pp. 280-283.) ‘The [unanimity] instruction is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count.’ (People v. Deletto (1983) 147 Cal.App.3d 458, 472.)” (People v. Russo, supra, 25 Cal.4th at p. 1132.)
“In order to prove a violation of section 422, the prosecution must establish all of the following: (1) that the defendant ‘willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,’ (2) that the defendant made the threat ‘with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out,’ (3) that the threat—which may be ‘made verbally, in writing, or by means of an electronic communication device’—was ‘on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,’ (4) that the threat actually caused the person threatened ‘to be in sustained fear for his or her own safety or for his or her immediate family’s safety,’ and (5) that the threatened person’s fear was ‘reasonabl[e]’ under the circumstances.” (People v. Toledo (2001) 26 Cal.4th 221, 227–228, quoting § 422.)
Petitioner points to three separate threats he argues each could have been the basis of a conviction under section 422. First, the statement petitioner recognizes “most plainly meets the elements of a criminal threat,” is the one Canul described petitioner making before either the 911 call or L’s video recording, “If I see you outside, I’ll kill you.” The second, preserved on the recording of the 911 call, was while Canul was talking to the 911 dispatcher, at least 30 seconds after the first statement, when petitioner could be heard in the background saying, “Be scared when you come to work, be scared when you leave work.” Third, the iPhone video captured petitioner saying, “every day you go to work bitch you better go to work scared. When you leave you better be scared ‘cause you need to be all the times you call the police on people trying’ to get em’ hurt.”
Petitioner asserts that a unanimity instruction was required because the prosecutor did not elect which of these statements formed the basis of the charged criminal threat. Petitioner acknowledges that the prosecutor “did emphasize the initial threat,” but urges that she did not state with sufficient clarity that the words “If I see you outside, I’ll kill you” were the only basis upon which the jury could find petitioner guilty. He notes that in closing argument the prosecutor directed the jurors’ attention to both the recorded and unrecorded statements, played the recordings and described and quoted the “better be scared” statements reflected in the recordings. While the prosecutor “arguably placed greater emphasis on the ‘I’ll kill you’ statement than the other threats,” petitioner maintains the jury was never informed the prosecution had elected to seek conviction solely for the initial threat.
Petitioner relies primarily upon People v. Melhado (1998) 60 Cal.App.4th 1529, which found reversible error in a trial court’s refusal to instruct on unanimity in a case where the evidence showed three distinct threats that could have constituted violations of section 422 and, while the prosecutor had informed the judge and opposing counsel that he was relying on a single threat, he did so outside the presence of the jury. (Melhado, at pp. 1533-1535.) Melhado rejected the argument that the prosecutor made clear in closing argument that he was relying upon one specified threat and referring to the others “only as embellishments.” (Id. at p. 1535.) The Melhado court stated: “It is possible to parse the prosecution’s closing argument in a manner which suggests that more emphasis was placed on the 11 a.m. event than on the others. However, even assuming that this was so, we find that the argument did not satisfy the requirement that the jury either be instructed on unanimity or informed that the prosecution had elected to seek conviction only for the 11 a.m. event, so that a finding of guilt could only be returned if each juror agreed that the crime was committed at that time. Because the prosecutor did not directly inform the jurors of his election and of their concomitant duties, it was error for the judge to refuse a unanimity instruction in the first instance and to disregard his sua sponte duty thereafter.”
(Id. at p. 1536.)
In the present case, in contrast with Melhado, the prosecutor’s argument very clearly distinguished the threat it was relying upon to prove petitioner guilty of making a criminal threat from other threats petitioner made during the incident. (See People v. Jantz (2006) 137 Cal.App.4th 1283, 1292 [prosecutor clearly informed jury of election in opening and closing argument].) The prosecutor began her closing argument by telling the jury that the case was about petitioner threatening to kill Canul. “What happened on April 29th, 2015, wasn’t just bullying, wasn’t some rant, wasn’t some mistake. It was a directed threat on Mr. Canul’s life.” The prosecutor argued that petitioner did not like being told to leave and told Canul, “I know where you work; I will kill you.” Discussing the elements of the offense, the prosecutor stated, “Let’s start with number one, the threat, okay? The defendant willfully threatened to unlawfully kill, okay? ‘I’ll kill you.’ It doesn’t get much simpler than that.” The prosecutor further explained that this threat was established only by testimony: “[T]his is where we only have testimony, okay? We don’t have a recording in the 911, because he called after the threat was made. [¶] We don’t have it in the video, because Mr. Lobato didn’t see the beginning. . . .”
The prosecutor then explained that the initial explicit threat was corroborated by petitioner’s other statements: “So it is just Canul’s testimony, but it’s corroborated. It’s corroborated by the 911 call and by the defendant’s own statement, like I said before.” After playing the recording of the 911 call, the prosecutor continued: “So the 911 call is right after it happened. And it’s as he’s recounting to the police, ‘This why you need to come, this is why I’m calling. Because he threatened to kill me. He said he’s going to kill me,’ okay?”
The prosecutor next addressed the other elements of the offense, describing the recorded statements as showing petitioner’s intent for his initial statement to be “understood as a threat” through his body language and tone of voice, cursing Canul and telling him he “better be scared”: “He is following up his threat to kill Mr. Canul in a loud statement, okay?” “When someone says, ‘I’ll kill you’; when someone continues to approach and get as close as he possibly can without jumping over the counter; when someone is pointing at you and screaming at you and following up on that initial threat with lots of reiterations and reinforcement, what is the only reasonable conclusion about the defendant’s mental state? [¶] He wanted to threaten and scare Mr. Canul. He wanted Mr. Canul to believe that threat. That’s the only reasonable conclusion.”
With respect to the element that the threat be sufficiently clear to communicate a serious intention and immediate prospect that the threat would be carried out, the prosecutor told the jurors, “consider the words themselves, ‘I’ll kill you’ and the surrounding circumstances” because the context shows where the words go from being a joke to “meaning it and getting that fear instilled in someone.” The prosecutor argued, “Sometimes there are other cases where you have different words. ‘I’ll kill you’ is very clear, okay? It’s specific and it’s immediate.”
The prosecutor also addressed the argument she expected the defense to make - that petitioner never said, “I’ll kill you,” and Canul was confused, didn’t understand or made up this statement. The prosecutor discussed why the jury should reject this argument, again referring to the 911 call as “corroborat[ing]” Canul’s testimony. And in her final rebuttal argument, the prosecutor stressed the importance of the “timeline”: “[Canul] is consistent that the defendant threaten[ed] to kill him, and then he called 911, and then [petitioner] continued to advance and reinforce that threat.”
Thus, the prosecutor repeatedly told the jury that the threat for which petitioner was being prosecuted was the initial explicit “I’ll kill you” that was described in Canul’s testimony but not reflected in the 911 or iPhone recordings because Canul called 911, and Lobato began to record, after the initial explicit threat to kill Canul. By contrast, the prosecutor consistently explained that the two other threats—the ones documented in the 911 and iPhone recordings, telling Canul he “better be scared”—were important because they corroborated Canul’s testimony that petitioner made the initial threat and demonstrated that petitioner intended that initial statement to be taken as a threat. The prosecutor never suggested or implied that any threat other than the express “I’ll kill you” amounted to a criminal threat.
Defense counsel’s closing argument reinforced the prosecutor’s distinction between the words alleged to constitute the threat and petitioner’s other statements heard on the recordings. Counsel asked, “Now, how many of you thought, before [the prosecutor’s] closing statement, that the statement that you’re going to be focusing on is going to be [petitioner’s] crazy tirade on that video? [¶] It turns out that’s not what this case is about.” Counsel argued that petitioner’s speech was protected by the First Amendment, his statements demonstrating he was angry about police treatment of minorities and about Canul repeatedly calling the police, then emphasized again that the prosecutor did not argue the video showed a criminal threat. “She’s talking about something that was said off tape. Something that we don’t have proof of, something which is proved—or provable in this case, if it can be proven—only by one person.” Petitioner’s defense was that the single threat the prosecution relied upon to establish a violation of section 422—“I’ll kill you”—was never uttered and Canul’s testimony to the contrary was biased and not credible.
Petitioner argues that the prosecutor’s opening argument conveyed the impression that “additional threats to kill took place on the 911 call.” He quotes the prosecutor’s statement that “you’re also going to hear that 911 call. And on that 911 call. Mr. Canul tells the dispatch lady immediately ‘I have a guy here; he’s threatening to kill me.’ [¶] In the background of that 911 call, you hear the defendant. And the defendant tells Mr. Canul that he better be scared. He better be scared when he goes to work; he better be scared when he leaves work. To the same end, he quotes the prosecutor’s references to Lobato hearing petitioner “threatening” Canul and recording petitioner’s “remaining threats”—the “better be scared” statements—as showing that the prosecutor was relying on all three threats.
Read as a whole, however, the opening statement does not suggest that petitioner’s statements on the 911 call or Lobato’s video were threats to kill upon which a conviction could be based. While not as detailed and lengthy as closing argument, the opening statement described the initial explicit threat—“I’ll kill you”—that preceded Canul’s call to 911 was the basis of the prosecution. When Canul told petitioner to leave, the prosecutor stated, petitioner “decided, ‘I’m not just going to be bullied. I’m going to threaten the life of Mr. Canul.’ [¶] And he threatened to kill Mr. Canul. And Mr. Canul heard that, had never been threatened by the defendant like that; backed up, got on his phone and called the police.” The remarks about the 911 call quoted above were made in the context of the prosecutor telling the jury that petitioner’s body language, “com[ing] at” Canul, and his “continu[ing] to yell,” showed petitioner was not joking and terrified Canul. In addition to Canul’s testimony, the prosecutor said, there would be the 911 call and Lobato’s video, which began “after he has already threatened to kill Mr. Canul” but captured “the remaining threats that he makes and his statements towards Mr. Canul about what he’ll do to him.” When petitioner threatened Canul’s life, the prosecutor said, “he took it seriously; he called the police. He did what he was supposed to do. [¶] This rose above bullying. This was a criminal threat, a threat against his life that was real, and it was intended by the defendant.” The referent of these statements was unquestionably the single threat that preceded the call to 911.
In sum, the prosecutor unambiguously conveyed in her arguments to the jury that the criminal threat for which petitioner was being prosecuted was his explicit threat to kill Canul and that his other statements served as evidence to corroborate the fact that petitioner made the explicit threat and the intent with which he did so. Accordingly, no unanimity instruction was required.
II.
The petition for writ of habeas corpus claims petitioner’s attorney provided ineffective assistance of counsel by failing to investigate and present a diminished actuality defense at trial. This claim is based on the psychological evaluation performed by Dr. Gregory, the forensic neuropsychologist defense counsel retained, after petitioner was found guilty, to provide recommendations for sentencing. The petition is supported by Dr. Gregory’s April 9, 2017 declaration and February 7, 2016, report, and the February 22, 2016 declaration of trial counsel.
Dr. Gregory diagnosed petitioner with “Bipolar I Disorder, Most Recent Episode Manic with Psychotic Features, Currently In Partial Remission”; “Cannabis Use Disorder, Moderate, In a Controlled Environment”; and “Antisocial Personality Disorder.” Her 22-page report relates petitioner’s history (psychosocial, medical, psychiatric, legal) and the results of Gregory’s evaluation. Dr. Gregory noted that petitioner had a history of psychiatric inpatient admissions beginning in 2011, as well as other evaluations not resulting in admissions; his symptoms at times included paranoid ideation, persecutory delusions, auditory hallucinations, irritability, and pressured and rapid speech. He was placed on a “5150 psychiatric hold” as a danger to self and others 13 days prior to the McDonald’s incident, was not admitted and refused community referrals when he was released; Dr. Gregory stated it was “likely” that he “continued to exhibit symptoms without treatment” and noted that he was reported to have been “yelling in the McDonald’s every day for a week prior to the incident that resulted in his arrest.” According to the report, petitioner’s “Bipolar Disorder played a role in his behavior in McDonalds. His irritable mood, aggressive yelling, paranoid ideation and poor judgment at the time of the incident, symptoms associated with Bipolar Disorder with Psychotic Features, had previously precipitated psychiatric inpatient treatments and 5150 psychiatric holds for petitioner.”
Dr. Gregory’s declaration describes the testimony she would have given if she had been called as a witness at trial, including discussion of petitioner’s diagnoses and psychiatric history, the symptoms of bipolar disorder, manic episodes and psychosis, and how petitioner’s psychiatric history and symptoms affected his mental state on the day of the McDonald’s incident. Dr. Gregory declared that petitioner “likely” suffered from “mania and psychotic features caused by his Bipolar I Disorder” at the time of the incident, which “appear to have impaired his ability to appropriately control his speech and accurately perceive the situation.”
Trial counsel’s declaration states that Dr. Gregory’s report led him to recognize for the first time that petitioner suffered from a mental illness that might have resulted in his not having the specific intent required for conviction. Counsel declared, in essence, that despite his awareness that petitioner might have some mental health issues, that questions about his competency to stand trial had been raised in the prior criminal threat case and a psychologist had concluded petitioner was likely suffering from bipolar disorder, and that the prior case involved petitioner “ ‘acting out,’ ” counsel did not focus on thoroughly investigating petitioner’s mental state as an issue in his defense for several reasons. Based on his knowledge of petitioner over a number of years, counsel did not believe any mental illness petitioner might have had was serious or contributed to his conduct at the McDonald’s; counsel thought the case against petitioner was weak; petitioner strongly wanted to proceed on a “ ‘no time waiver’ basis” and counsel did not believe this would allow sufficient time to generate a “meaningful” psychological evaluation; and, because counsel wanted to maintain a positive working relationship with petitioner and knew petitioner could be “contentious and angry at times” and would “invariably” be upset by discussions of mental illness, counsel tried to avoid discussing such issues. Counsel understood the psychologists’ reports in the prior case as dealing with petitioner’s competency at trial “as opposed to mental illness being a driver of the conduct behind his charged conduct.”
Counsel explained that he retained Dr. Gregory in an effort to gather mitigating evidence for sentencing, as petitioner faced up to 11 years as a second strike offender with a five-year prior conviction. Once he received Gregory’s report, counsel “became aware of the gravity of [petitioner’s] mental illness and how much the manifestations of Bipolar Disorder are ‘in line’ and responsible for the type of conduct seen in both of his [section] 422 convictions. I was surprised to see the degree of congruity between the ‘textbook’ symptoms of Bipolar Disorder and [petitioner’s] conduct involved in both cases.” Counsel declared that, in retrospect, he “did not place as much emphasis on petitioner’s mental illness as a significant factor in his case” as he could or should have, instead placing “a premium on maintaining a positive working relationship” with petitioner, attempting to accommodate his wishes and “avoid ‘personality conflicts’ with him.” Counsel stated that his failure to focus on thoroughly investigating petitioner’s mental state as an issue for trial was not a “ ‘trial strategy’ ” but rather a result of his belief, before receiving Gregory’s report, that any mental condition petitioner might have had was “not particularly relevant to the case” and that “any mention of the need to waive time for trial would have been met with extreme resistance from [petitioner].”
We concluded the petition established a prima facie case of ineffective assistance of counsel and ordered respondent to show cause why relief should not be granted. Having now considered respondent’s return and petitioner’s traverse, and heard the parties’ oral arguments, we conclude petitioner is entitled to relief.
A.
In order to prevail on a claim of ineffective assistance of counsel, petitioner “must show that his attorney’s ‘representation fell below an objective standard of reasonableness’ ‘under prevailing professional norms’ (Strickland v. Washington [(1984)] 466 U.S. [668], 688 [(Strickland)]; In re Hardy (2007) 41 Cal.4th 977, 1018) and ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome’ ([Strickland], at p. 694).” (In re Valdez (2010) 49 Cal.4th 715, 729–730 (Valdez).)
“ ‘Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” [Citation.]’ ([Strickland], supra, 466 U.S. at p. 689.)” (Valdez, supra, 49 Cal.4th at pp. 729-730.)
But “deferential scrutiny of counsel’s performance is limited in extent and indeed in certain cases may be altogether unjustified. ‘[D]eference is not abdication’ (People v. McDonald (1984) 37 Cal.3d 351, 377); it must never be used to insulate counsel’s performance from meaningful scrutiny and thereby automatically validate challenged acts or omissions. Otherwise, the constitutional right to the effective assistance of counsel would be reduced to form without substance.” (People v. Ledesma (1987) 43 Cal.3d 171, 217 (Ledesma).)
Under the constitutional right to effective assistance of counsel, “the defendant can reasonably expect that in the course of representation his counsel will undertake only those actions that a reasonably competent attorney would undertake. But he can also reasonably expect that before counsel undertakes to act at all he will make a rational and informed decision on strategy and tactics founded on adequate investigation and preparation. (See, e.g., In re Hall (1981) 30 Cal.3d 408, 426; People v. Frierson (1979) 25 Cal.3d 142, 166; see also Strickland, supra, 466 U.S. at [p. 690] [implying that counsel must make ‘all significant decisions in the exercise of reasonable professional judgment’ (italics added)].)” (Ledesma, supra, 43 Cal.3d at p. 215.)
“In evaluating counsel’s performance, we assess both the reasonableness of counsel’s decisions and the reasonableness of the investigation that underlay each decision. ‘[B]efore counsel undertakes to act, or not to act, counsel must make a rational and informed decision on strategy and tactics founded upon adequate investigation and preparation.’ (In re Marquez [(1992)] 1 Cal.4th [584,] 602; accord, In re Avena [(1996)] 12 Cal.4th [694,] 722; see also In re Jones (1996) 13 Cal.4th 552, 564–565.) ‘ “[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.” ’ (In re Lucas (2004) 33 Cal.4th 682, 722, quoting Strickland, supra, 466 U.S. at pp. 690–691.)” (In re Thomas (2006) 37 Cal.4th 1249, 1258.)
B.
“To support a defense of ‘diminished actuality,’ a defendant presents evidence of voluntary intoxication or mental condition to show he ‘actually’ lacked the mental states required for the crime. (People v. Steele (2002) 27 Cal.4th 1230, 1253.)” (People v. Clark (2011) 52 Cal.4th 856, 880, fn. 3; People v. Elmore (2014) 59 Cal.4th 121, 139 (Elmore).) Under section 28, subdivision (a), “evidence of mental disorders is admissible ‘on the issue of whether or not the accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged.’ ” (Elmore, at p. 139.) This is to be distinguished from evidence of a defendant’s “capacity to form a required mental state,” which is barred by section 28, subdivision (a), “consistent with the abolition of the diminished capacity defense.” (Elmore, at p. 139, italics added.)
Petitioner was convicted of a specific intent crime: As we have said, a conviction under section 422 requires proof that the defendant “made the threat ‘with the specific intent that the statement . . . is to be taken as a threat.’ ” (People v. Toledo, supra, 26 Cal.4th at p. 227.) Petitioner argues that trial counsel was aware before trial that petitioner had some mental health issues but did not consider them relevant to his defense, then learned from Dr. Gregory’s postconviction evaluation that petitioner’s mental illness may have resulted in his not having the required intent at the time of the McDonald’s incident.
Trial counsel, according to his declaration, knew before trial that petitioner’s mental health status was questionable. Counsel had known petitioner since 2005 and “always thought [he] may have been suffering from some mild type of mental illness.” He was aware that petitioner “would sometimes become very agitated, loud and animated in discussing his case.” Counsel knew that petitioner had been convicted in September 2014 of making criminal threats in an incident at the San Francisco Department of Motor Vehicles (DMV), as he was also representing him in the probation violation in that case. The DMV incident also involved a loud, disruptive tirade in a public establishment. Having spoken to the attorneys who represented petitioner in that case, counsel was aware that petitioner had “act[ed] out” at the trial in that case, that prior to sentencing he had been evaluated for competency to stand trial, that one of the evaluators (Dr. French) concluded he was incompetent and likely suffered from bipolar disorder and that a second evaluator (Dr. Jeko) found him presently competent but opined that he could have been incompetent at the time of the offense and/or trial.
Counsel’s declaration does not state whether he read the evaluators’ reports or only discussed them with the prior attorneys, but the reports would have been readily available to him. Dr. French’s report related that petitioner had been hospitalized for psychiatric reasons at least three times, once for nearly two weeks; that his mental health was reported to have deteriorated after the deaths of his mother and brother “not too long” before the October 2014 evaluation; that medications prescribed for him in 2013 were “typical of someone suffering a serious mood disorder with psychotic symptoms”; and that his ex-girlfriend had told CHP officers at the time of the June 2014 incident that he “is bipolar and suffers from manic depression” and “is not taking his medications.” French related that at the time of his arrest in September 2014, petitioner was described as exhibiting “significant psychotic/mood symptoms” and “delusional thought processes.”
Moreover, it appears that police reports from the current incident and another incident only 13 days earlier suggested issues with petitioner’s mental state. As later described in Gregory’s review of petitioner’s psychiatric history, the incident report for the April 29, 2015 incident at McDonald’s indicated that petitioner had been coming in and yelling at customers almost every day for the preceding week. A police incident report for April 16, 2015, indicated that petitioner was seen outside Soul Cycle, where he used to work, “yelling and screaming with no shirt on,” then found yelling and screaming outside another business establishment. He was “agitated, rambling and making no sense” in the patrol car and was taken to San Francisco General Hospital on a 5150 psychiatric hold. Hospital records reflected that intramuscular injections were required to calm him because he refused oral medication, and he refused referrals when he was released.
As we have said, trial counsel’s declaration describes several reasons for his failure to investigate the significance of these indications of mental illness for the present case. In the years he had known petitioner, counsel had considered the fact that petitioner could be “rather contentious and angry at times” a part of his personality due to “his criminal justice life experiences.” Petitioner had always appeared able to discuss his legal case and work with counsel and his investigator in planning his defense, and counsel understood the evaluators’ reports in the 2014 case as dealing with trial competency, not “mental illness being a driver of the conduct behind his charged conduct.” Counsel did not think any mental condition petitioner had was “serious” and he “made attempts to not discuss mental illness issues with [petitioner]” because counsel thought they were irrelevant to the case and “such discussions would invariably upset [petitioner] and ‘poison’ the generally positive attorney-client relationship [counsel] had with him.” In order to maintain a positive and productive working relationship, counsel “acceded to [petitioner’s] strong wish to pursue this case on a ‘no time waiver’ basis.” This did not allow sufficient time to generate a “meaningful psychological evaluation”; counsel noted that it ultimately took more than four and a half months to “find and gather” all the documents Dr. Gregory reviewed and more than six and a half months for Dr. Gregory to complete her evaluation and report. Finally, counsel believed the case against petitioner was “factually weak.”
Despite counsel’s explicit assertion that his failure to “focus on thoroughly investigating [petitioner’s] mental state to use the issue during the case” was “not a ‘trial strategy,’ ” the trial court (in connection with the new trial motion) found that “the decision not to present any evidence of defendant’s mental condition at trial appears to have been driven in significant part by trial counsel’s tactical decisions, particularly his assessment of the case as a ‘factually weak, one witness case,’ his desire to maintain a good working relationship with his client, and his decision to accede to [petitioner’s] request for a speedy trial rather than seek a continuance for purposes of retaining an expert to conduct a psychological assessment of [petitioner].”
Respondent argues that the trial court rejected petitioner’s claim that defense counsel failed to investigate his mental condition, and that we should defer to this “factual finding” because it is supported by substantial evidence. In support of this contention, respondent points to specific pages of the trial court’s order at which the court discussed its determination that Dr. Gregory’s report was not new or newly discovered evidence, as a great deal of evidence of petitioner’s mental condition was available prior to the present trial and petitioner had not shown he could not have produced the evidence he obtained from Dr. Gregory at trial with reasonable diligence, and that there was no ineffectiveness of counsel because the decision not to present evidence of petitioner’s mental condition at trial “appears to have been driven insignificant by trial counsel’s tactical decisions.”
Contrary to respondent’s assertion, the trial court did not “reject[] as a matter of fact that counsel had failed to investigate petitioner’s mental condition.” The court found counsel was aware that petitioner suffered from some degree of mental illness, and of the evidence from petitioner’s first trial, including the competency evaluations—just as counsel stated in his declaration and papers on the new trial motion. As to investigation of petitioner’s mental condition, however, the court found that the defense made no attempt before trial to obtain petitioner’s medical records or retain a psychologist to analyze them because counsel made an affirmative decision “not to pursue and present evidence of [petitioner’s] mental state.”
Arguing that we are not required to take counsel at his word with respect to his assertion that his failure to investigate and present a mental health defense was not a trial strategy, respondent maintains that “this is not a case . . . where trial counsel failed to learn of information that would have changed his trial strategy had he known it” because defense counsel “knew that a psychologist had diagnosed petitioner as suffering from bipolar disorder and he knew [petitioner’s] mental health history as documented by that psychologist.” Respondent completely misses petitioner’s point: Counsel knew there were issues with petitioner’s mental health but dismissed them as irrelevant without any investigation into their potential significance for petitioner’s defense strategy. Defense counsel’s awareness of facts relating to petitioner’s mental condition, as described in the trial court’s order and counsel’s declaration, does not refute the claim that counsel failed to investigate; it was counsel’s awareness of these facts that made it incumbent upon him to investigate the significance of petitioner’s mental state. What counsel learned from Dr. Gregory’s evaluation was not simply that petitioner suffered from bipolar disorder or sometimes exhibited psychotic symptoms—facts reflected in the information available to counsel at the time of trial—but “how much the manifestations of Bipolar Disorder are ‘in line’ and responsible for the type of conduct seen in both of [petitioner’s section] 422 convictions,” the “degree of congruity between the ‘textbook’ symptoms of Bipolar Disorder and [petitioner’s] conduct involved in both cases.” This further investigation revealed, as Dr. Gregory put it, that petitioner was likely suffering “from mania and psychotic features caused by his Bipolar Disorder” at the time of the McDonald’s incident, and that his “mania and psychosis at the time of the McDonalds incident appear to have impaired his ability to appropriately control his speech and accurately perceive the situation.”
Respondent’s argument that defense counsel had “several legitimate reasons” for proceeding quickly to trial rather than investigating a possible mental state defense begs the question. “Counsel’s primary ‘duty is to investigate the facts of his client’s case and to research the law applicable to those facts.’ (Ledesma, supra, 43 Cal.3d at p. 222.) Counsel’s decisions regarding strategy and tactics must be rational and ‘ “founded upon adequate investigation and preparation.” ’ (In re Thomas[, supra,] 37 Cal.4th [at p.] 1258.)” (People v. Doolin (2009) 45 Cal.4th 390, 423.) Here, counsel explained that his decision to ignore petitioner’s possible mental health issues was made without any investigation into the specifics of that mental condition and what bearing it might have had on petitioner’s thoughts, speech and conduct at McDonald’s. The trial court’s decision similarly appears to ignore the fact that, according to counsel’s declaration, his “decision” not to present evidence of petitioner’s mental condition was made without any consideration of, much less investigation into, what relevance petitioner’s mental state might have had to the specific intent crime with which petitioner was charged.
The significance of counsel’s duty to investigate was discussed in Ledesma, which reversed the defendant’s first degree murder and other convictions due to ineffective assistance of counsel. One of counsel’s many failings in that case was that he did not consider a diminished capacity defense. Counsel was aware of the defendant’s “troubled life” and “long and serious abuse of such drugs as PCP and methamphetamine,” but he “did not pursue any further investigation into defendant’s mental state at the time of the crimes charged.” (Ledesma, supra, 43 Cal.3d at pp. 193-194.) The attorney explained that he did not consider a diminished capacity defense because of “the detailed nature of defendant’s alleged confession, defendant’s seeming rationality, the substance of [the court-appointed psychiatrist’s] report, and his personal belief that a person’s use of drugs or alcohol does not affect his criminal responsibility.” (Id. at p. 196.) Instead, he agreed to assist in developing an alibi defense the defendant had begun to prepare with prior counsel. (Ibid.)
Ledesma rejected the Attorney General’s argument that counsel was excused from pursuing a diminished capacity defense because the defendant insisted upon presenting an alibi defense. (Ledesma, supra, 43 Cal.3d at p. 219.) Although the Ledesma court rejected the initial premise that the defendant insisted on the alibi defense, the court explained: “[E]ven if defendant had in fact insisted on the alibi defense from the very beginning and had as a consequence rejected the use of diminished capacity or any other ‘mental defense’ and refused to cooperate in developing such a defense, the Attorney General’s contention would still lack merit. Counsel’s first duty is to investigate the facts of his client’s case and to research the law applicable to those facts. . . . Criminal defense attorneys have a “ ‘duty to investigate carefully all defenses of fact and of law that may be available to the defendant . . . .’ ” ’ ([People v.] Pope (1979) 23 Cal.3d [412], 424–425.) The client’s initial insistence on one defense and opposition to all others does not ‘excuse counsel from undertaking sufficient investigation of possible defenses to enable counsel to present an informed report and recommendation to his client.’ (People v. Mozingo (1983) 34 Cal.3d 926, 934.) This is especially so when, as here, the evidence available to counsel supports a mental defense and the defense allegedly insisted on by the client is uncorroborated or, indeed, contradicted in whole or in part by the available evidence. (Ibid.) That counsel, as a plurality of this court have stated, may be compelled to yield to his client’s right to insist on the presentation of a defense of his own choosing (People v. Frierson (1985) 39 Cal.3d 803, 812–816) does not excuse him from his duty to investigate and research other defenses so as to make an informed recommendation to his client (see id. at p. 817).” (Ledesma, at pp. 221-222.)
Here, trial counsel chose to avoid any discussion of mental health issues because he believed such discussion would upset petitioner. Making this choice in the face of considerable information suggesting mental issues were at play in the McDonald’s incident without first undertaking any investigation into their relevance and significance plainly violated counsel’s duty to investigate all potentially available defenses. (Ledesma, supra, 43 Cal.3d at p. 222.) As in Ledesma, the available information supported a mental defense: Petitioner had a lengthy psychiatric history, he had been diagnosed as bipolar, he had been placed on a psychiatric hold as recently as 13 days before the McDonald’s incident, apparently due to his yelling outside two business establishments, and had been yelling at customers in the McDonald’s daily for the week preceding the April 29 incident; petitioner had been convicted of making criminal threats in an incident involving similar conduct less than a year before, and had engaged in similar conduct when he was arrested after failing to appear in court in the prior case; and counsel had personally observed petitioner’s agitation and angry outbursts, and suspected petitioner had some “mild” form of mental illness. Also as in Ledesma, the defense petitioner wanted to pursue was “uncorroborated” and possibly contradicted by other evidence: Petitioner denied making the explicit threat to kill Canul upon which his prosecution was based, but the recordings of the incident reflected him acting aggressively and making statements that could easily be taken as significant threats. As in Ledesma, trial counsel’s expectation that petitioner would be distressed by and not cooperate with a mental state defense did not excuse him from investigating whether such a defense was viable and how strong it might be, so that any decision not to pursue the defense would be an informed one.
Ledesma is also instructive with respect to the defendant’s present ability to discuss the case and work with his attorney on his defense strategy. There, the factors that influenced the attorney not to consider a diminished capacity defense included the “detailed nature” of the defendant’s confession and his “seeming rationality.” (Ledesma, supra, 43 Cal.3d at p. 196.) The Ledesma court stated, “Had [counsel] undertaken adequate preliminary investigation and research on mental defenses in general and diminished capacity in particular,” he would have recognized that the “nature and tone of the alleged confession” said “little if anything about defendant’s state of mind at the time of the killing” because the confession was made some seven months after the defendant was placed in custody and denied access to PCP and other illegal substances. (Id. at pp. 222-223.) Moreover, counsel admitted that in fact the tone of the alleged confession “led him to conceive doubts about defendant’s mental state and not to dismiss such doubts.” (Id. at p. 223.) Although the Ledesma opinion does not directly address the defendant’s apparent rationality as a separate issue, the same reasoning would apply: That the defendant appeared rational once in custody and off the substances he had been using did not indicate what his mental state would have been at the time of the offense. The same is true here. Trial counsel noted that petitioner “presented himself as mentally capable” of working with counsel and his investigator, but this fact was not indicative of petitioner’s mental state at the time of the incident, when his conduct was demonstrably different.
And, again as in Ledesma, the existing psychological reports gave reason to question petitioner’s mental state at the time of the incident. The attorney in Ledesma had been influenced by the report of a psychiatrist who found no indication of serious mental illness but referenced the defendant’s drug dependence and abuse (Ledesma, supra, 43 Cal.3d at p. 194, fn. 5); the Ledesma court stated that the report “provide[d] an insufficient basis to reject a defense of diminished capacity, and indeed raise[d] issues calling for further investigation and research.” (Id. at p. 223.) Here, counsel was aware of the psychological evaluations conducted in October and November 2014, which gave at least as much reason to believe further investigation necessary as did the report in Ledesma, and, from his own experience with petitioner, counsel believed that petitioner suffered from at least some “mild” form of mental illness.
Respondent’s attempts to distinguish Ledesma are not persuasive. That the defendant in Ledesma was charged with capital murder is a distinction without a difference. The Ledesma opinion does not suggest that defense counsel’s duty to investigate was in any way tied to the nature of the charge; it stated broadly that defense counsel has an obligation to investigate potentially relevant defenses. (Ledesma, supra, 43 Cal.3d at p. 215.) The fact that the particular defense at issue in Ledesma—diminished capacity—is no longer an available defense is also a distinction without a difference. (§ 28.) Both diminished capacity in that case and diminished actuality here are defenses based on the effect of the defendant’s mental state on the specific intent required to prove the charged offense. The fact that trial counsel in the present case acknowledged he was aware of petitioner’s mental health issues and explained why he did not pursue a mental state defense is also not a distinction: Defense counsel in Ledesma was aware of the factors that pointed to the applicability of a diminished capacity defense (the defendant’s troubled life and history of serious substance abuse) and explained why he did not consider the defense despite that awareness. (Ledesma, at pp. 193-194, 196.)
Respondent relies on People v. Haskett (1982) 30 Cal.3d 841, 853 (Haskett), to argue that an attorney faced with a “stubborn client and inconsistent defenses” should not be judged too hastily in hindsight for making a difficult choice. The defendant in Haskett claimed he was not adequately represented in that his attorney failed to “consider carefully” a diminished capacity defense before presenting an alibi defense that was “doomed to fail.” (Id. at pp. 852-853.) Rejecting this contention, the court stated, “Inasmuch as any inadequacy in [counsel’s] investigation of diminished capacity was attributable to defendant’s reluctance to cooperate, we need not pause to weigh the relative strengths and weaknesses of the alibi defense against those of the possible diminished capacity argument in this case. Because the two were inconsistent, defense counsel was put to an unavoidable but difficult choice. We will not employ the advantage of hindsight to condemn his chosen path, nor will we characterize as incompetence counsel’s presentation of a defense that his client elects voluntarily to offer. A defendant exercises rather than surrenders the right to make ‘his defense’ (Faretta v. California (1975) 422 U.S. 806, 821) when his counsel, even against his own judgment as to the better tactical approach, agrees to present the defense on which the defendant chooses to rely.” (Haskett, at p. 853.)
Respondent ignores a critical distinction between Haskett and the present case. The attorney in Haskett did attempt to investigate a diminished capacity defense, but was thwarted by the defendant’s refusal to submit to a psychiatric examination until just before trial. The court explained, “[C]ounsel’s inability to fully explore the diminished capacity defense was entirely due to defendant’s refusal to submit to a psychiatric examination until just before trial. Defendant cannot complain of inadequate investigation caused by his own failure to cooperate. (People v. Beagle (1972) 6 Cal.3d 441, 459-460.) Furthermore, counsel’s decision not to pursue the diminished capacity defense appears to have been bottomed not on a failure to investigate but on the wholly rational conclusion that as a tactical matter the defense would be unwise. First, the court-appointed psychiatrist who finally examined defendant before the prosecution rested found no basis for an insanity or diminished capacity defense. Second, those defenses would require abandonment of an alibi defense that several witnesses were willing to corroborate and that would completely exonerate defendant if believed. Third, defense counsel was aware of defendant’s reluctance to call into question his own mental stability, and could have concluded that he would have difficulty securing defendant’s cooperation.” (Haskett, supra, 30 Cal.3d at p. 853, italics added.)
Here, counsel’s expectation that petitioner would be upset by and not cooperate with a diminished actuality defense led him to avoid even investigating the potential defense. Petitioner did not refuse to cooperate; he was not given the option of exploring this defense. As a result, neither counsel nor petitioner himself could make an informed choice on defense strategy. Moreover, unlike the situation in Haskett, a diminished actuality defense was not necessarily inconsistent with the defense actually employed. Petitioner could have argued that Canul was incorrect in describing an explicit threat to kill but that even if he unwittingly spoke these words, he did so without any intent to say something that Canul would take to be an actual threat.
Valdez, supra, 49 Cal.4th 715, which respondent cites in emphasizing reviewing courts’ deference to attorneys’ reasonable tactical decisions, is also not a failure-to-investigate case. The defendant in Valdez was arrested a day after the murder with which he was charged, standing next to a car in which the police found a gun with dried blood on the grip and a pair of pants with trace amounts of blood on them. There was evidence that the blood on the gun could not have been the defendant’s but was consistent with the victim’s blood type. (Id. at p. 721.) The defendant argued he received ineffective assistance of counsel because his attorney failed to present evidence that the blood on the pants had been tested and determined not to have come from the victim. (Id. at pp. 730-731.) Had this evidence been presented, the defendant claimed, counsel could have argued it was reasonable to assume that if the blood on the pants did not belong to the victim, the blood on the gun did not either. (Ibid.) Valdez found that counsel’s decision not to present the evidence was a reasonable tactical choice. Counsel explained that the defendant had admitted to him that he shot the victim and counsel therefore did all he could to prevent the prosecution from testing the blood on the gun because he believed it would be positive for the victim. (Id. at p. 731.) Counsel did not present evidence of the blood testing on the pants because he believed that if he indicated he intended to demonstrate that blood was not the victim’s, the prosecution might further test the blood on the gun, which would “virtually prove” the blood was the victim’s.
As respondent emphasizes, the fact that expert testimony may be available does not necessarily require defense counsel to consult the experts or present their testimony at trial. (Harrington v. Richter (2011) 562 U.S. 86, 106 (Richter).) In Richter, the defendant claimed ineffective assistance of counsel due to his attorney’s failure to consult blood evidence experts in a case which turned out to involve a question about the murder victim’s specific location when he was shot. After the defense presented a theory under which the murder victim would have been in a different location than where the prosecution witness described, the prosecution introduced blood pattern evidence to show that the victim could not have been where the defense claimed. (Id. at pp. 93-95.) Defense counsel exposed some weaknesses in the blood analysts’ testimony through cross-examination but did not present expert testimony. (Id. at p. 95.) After conviction and unsuccessful appeals, the defendant petitioned the California Supreme Court for a writ of habeas corpus, asserting that counsel’s representation was deficient in failing to present expert testimony on serology, pathology and blood spatter patterns that he argued would bolster the defense theory. (Id. at p. 97.) The state court denied relief in a summary order and a habeas petition in federal district court was denied, then the Ninth Circuit Court of Appeals held trial counsel was deficient for failing to consult such experts. (Id. at p. 96.)
The high court reversed, finding the Ninth Circuit did not accord sufficient deference to the California Supreme Court’s denial of the claim. (Richter, supra, 562 U.S. at pp. 100-101.) Under the statute authorizing federal courts to issue habeas corpus relief for prisoners in state custody, relief “ ‘shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim . . . [¶] resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or [¶] . . . ‘resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.’ ” (Id. at pp. 97-98, quoting 28 U.S.C. § 2254(d).) Emphasizing that the question was not whether counsel’s performance was ineffective under the Strickland standard but whether the state court’s application of that standard was unreasonable, Richter held that a federal court has authority to issue the writ only “where there is no possibility fair minded jurists could disagree that the state court’s decision conflicts with the Court’s precedents.” (Richter, at pp. 100, 102.) Under this “ ‘doubly’ ” deferential standard, the court rejected the Ninth Circuit’s holding that “because [the defendant’s] attorney had not consulted forensic blood experts or introduced expert evidence, the California Supreme Court could not reasonably have concluded counsel provided adequate representation.” (Id. at p. 106.) In essence, while the Ninth Circuit viewed the blood evidence to be of central concern because the victim’s location was “ ‘the single most critical issue in the case,’ ” Richter found it was “far from a necessary conclusion that this was evident at the time of the trial” because there were “many factual differences between prosecution and defense versions of the events.” (Id. at p. 107.) Moreover, even if the significance of the blood evidence had been apparent, there were reasons a competent attorney might not have used it, as the evidence “carried its own serious risks,” such as potentially exposing the falsity of the defendant’s theory or causing the prosecution to produce additional blood evidence that could “destroy” the defense, create a battle of the experts or distract the jury from the question whether the prosecution’s main witness was telling the truth. (Id. at p. 108.)
We do not review the trial court’s decision here with anything like the deference required in Richter. “Whether trial counsel performed competently, that is, ‘reasonabl[y] under prevailing professional norms’ (Strickland, supra, 466 U.S. at p. 688), presents a mixed question of fact and law. Such questions are ‘generally subject to independent review as predominantly questions of law—especially so when constitutional rights are implicated’—and ‘include the ultimate issue, whether assistance was ineffective, and its components, whether counsel’s performance was inadequate and whether such inadequacy prejudiced the defense.’ ([Ledesma, supra,] 43 Cal.3d [at p. 219].)” (In re Resendiz (2001) 25 Cal.4th 230, 248-249, overruled on another ground in Padilla v. Kentucky (2010) 559 U.S. 356, 370-371.)
Further, the circumstances of the present case are very different from those in Richter. There was no dispute here about what petitioner did, much of which was recorded. The only questions were what he said in the portion of the incident that was not recorded and what he intended throughout. There was abundant reason to question petitioner’s mental state at the time of the incident, as we have described, from his behavior during the incident itself and the history counsel was aware of through his own experience with petitioner, his conversations with the attorneys who represented petitioner in the prior criminal threat trial and the police and psychological reports generated in that proceeding. The only avenue for investigating or presenting a mental state defense was through a psychologist or psychiatrist. Thus, unlike Richter, where the importance of the uninvestigated issue could not have been foreseen before trial, this was not a case where “there were any number of hypothetical experts—specialists in psychiatry, psychology, ballistics, fingerprints, tire treads, physiology, or numerous other disciplines and subdisciplines—whose insight might possibly have been useful” and counsel cannot be faulted in hindsight for “formulat[ing] a strategy that was reasonable at the time and [balancing] limited resources in accord with effective trial tactics and strategies.” (Richter, supra, 562 U.S. at pp. 106-107.) Petitioner’s intent was central to the case, and counsel failed to investigate the sole area in which expert testimony could have proved valuable to the defense on that central issue.
In sum, counsel’s choice not to pursue a mental state defense cannot be supported as a reasonable tactical decision. Given counsel’s awareness that petitioner suffered from some degree of mental illness and the centrality of petitioner’s mental state to his defense, counsel’s choice to ignore these issues rather than investigate the possibility of a diminished actuality defense clearly was not an informed decision.
C.
Respondent argues that petitioner cannot prevail on a claim of ineffective assistance of counsel because he has not shown a connection between his bipolar disorder and the lack of the specific intent required for a violation of section 422. As we have said, the required intent is that the threat be made “ ‘with the specific intent that the statement . . . is to be taken as a threat.’ ” (People v. Toledo, supra, 26 Cal.4th at pp. 227-228.) Respondent takes as a starting point that a defendant who does not plead not guilty by reason of insanity is conclusively presumed to have been legally sane at the time of the offense (Elmore, supra, 59 Cal.4th at p. 141; § 1016, subd. 6) and, therefore, to have the mental capacity to commit the charged crimes. According to respondent, Dr. Gregory’s report and declaration do not explain how “when a person angrily walks up to another person and aggressively shouts that he is going to kill him, that is not intended to be taken as a threat.” In respondent’s view, petitioner’s words and actions showed that he knew where he was and what he was doing and, therefore, that he was not delusional, and his petition fails to explain how bipolar disorder impacted his thinking.
We disagree. Dr. Gregory’s declaration states her conclusion that on the day of the McDonald’s incident, petitioner “likely continued to suffer from mania and psychotic features caused by his Bipolar I Disorder,” having been placed on a 5150 hold 13 days before, diagnosed with “Bipolar Affective Disorder (synonymous with Bipolar I Disorder), Current Episode Manic with Psychotic Symptoms,” treated with intramuscular medication because he refused oral medication, and released without referrals. Dr. Gregory stated that during the McDonald’s incident, petitioner “appeared to be exhibiting features of mania with psychosis, including irritable mood, aggressive yelling, paranoid delusions, agitation, and poor judgment,” and that his “mania and psychosis at the time of the McDonalds incident appears to have impaired his ability to appropriately control his speech and accurately perceive the situation.”
Respondent sees “lack of self-control” as irrelevant to a diminished actuality defense because it “does not address petitioner’s intent in threatening to kill Canul.” But this view simply assumes that petitioner’s words reflected his actual intent. Petitioner’s words could have been an expression of anger that he did not intend or expect to be taken literally, and lack of control could have been relevant if he was unable to stop himself from uttering words that could be taken to have a meaning he did not intend. In other words, in a better moment, petitioner might have been able to recognize that saying “I’ll kill you” as an expression of anger, without intent that the statement be taken as an actual threat, would not be a good idea; in the throes of a manic episode, however, he was not able to exercise self-restraint.
Respondent also argues that Dr. Gregory’s statement about impairment of petitioner’s ability to accurately perceive the situation failed to show that petitioner did not intend his statement as a threat. We agree that impaired perception would not necessarily negate intent, but that is not the point. Rather, the question is whether petitioner’s mental state at the time of the offense was such that his actual intent might not have been what his outward conduct communicated. Respondent argues that the evidence showed petitioner “knew where he was, to whom he was speaking, what he was saying, and what effect he wanted those words to have on the person to whom he was addressing them.” This argument assumes petitioner’s outward conduct must be an accurate reflection of his inner thinking process: As indicated above, respondent takes as a given that “when a person angrily walks up to another person and aggressively shouts that he is going to kill him,” he necessarily intends his words to be taken as a threat. But if petitioner was not perceiving the situation accurately, he might not have been aware of how he appeared to others—how close he was getting, how loudly he was yelling, how aggressive he seemed. If that was the case, petitioner’s inner thought process might not be aligned with his outward behavior; he might have intended only to vent his anger, not to cause Canul to believe petitioner was actually threatening to kill him.
Respondent appears to argue that impairment of petitioner’s ability to accurately perceive the situation could not have been relevant to his intent because there was no claim he was legally insane. But petitioner’s mental capacity to understand the nature and quality of the criminal act or appreciate its wrongfulness—the issue relevant to his legal sanity—is not the same thing as his ability to accurately perceive his situation in a given moment. As Elmore discussed in the context of the doctrine of unreasonable self-defense, a person’s misperception of objective facts may be “distorted by mental illness” without being so divorced from reality as to amount to legal insanity. (Elmore, supra, 59 Cal.4th at p. 146.) Dr. Gregory did not suggest that the symptoms of mania with psychosis petitioner exhibited during the McDonald’s incident, including “paranoid delusions,” indicated he was completely out of touch with reality, only that his mania and psychosis “impaired his ability to appropriately control his speech and accurately perceive the situation.”
Respondent similarly appears to equate the absence of delusion—assertedly demonstrated by petitioner’s awareness of “where he was and what he was doing”—with a necessarily accurate alignment of inner thought and outward behavior. We agree that the evidence demonstrated petitioner knew where he was and who he was talking to; his statements about Canul previously calling the police shows this much. But if, as Dr. Gregory opined, petitioner was inaccurately perceiving the situation, his words and conduct toward to Canul would not necessarily have reflected his actual intention, as he would not necessarily have realized what he was saying and/or how his statements were being understood.
D.
Respondent also argues that petitioner cannot show ineffective assistance of counsel because much of the evidence upon which the writ petition is based would have been inadmissible under section 28, as it is “more akin to diminished capacity and irresistible impulse” than diminished actuality. As we have said, “evidence of mental disorders is admissible ‘on the issue of whether or not the accused actually formed a required specific intent’ ” but not to show a defendant’s “capacity to form a required mental state.” (Elmore, supra, 59 Cal.4th at p. 139; § 28, subd. (a).) Also, “[i]n the guilt phase of a criminal action, any expert testifying about a defendant’s mental illness, mental disorder, or mental defect shall not testify as to whether the defendant had or did not have the required mental states, which include, but are not limited to, purpose, intent, knowledge, or malice aforethought, for the crimes charged. The question as to whether the defendant had or did not have the required mental states shall be decided by the trier of fact.” (§ 29.)
Respondent argues that Dr. Gregory’s declaration “speaks largely to a generalized notion of the capacity of a person with petitioner’s diagnosis to form the specific intent to commit a crime.” We disagree. The declaration states Dr. Gregory’s diagnoses based on her psychological evaluation of petitioner; describes the symptoms of bipolar disorder I, mania and “manic episode,” and psychosis; describes petitioner’s psychiatric admissions and 5150 holds in April 2013, May and June 2014, and April 2015; states it was “likely” that petitioner suffered from mania and psychotic features caused by his bipolar disorder on the day of the McDonald’s incident and listed symptoms of “mania with psychosis” he “appeared to be exhibiting”; and states that his mania and psychosis “appear[] to have impaired his ability to appropriately control his speech and accurately perceive the situation.” Finally, Dr. Gregory states that when she evaluated petitioner in November 2015, his insight into his mental illness was impaired, his descriptions of events “were often rambling and involved persecutory themes,” his thinking at times “appeared to border on delusional” and his bipolar I disorder was in partial remission.
Dr. Gregory’s declaration did not discuss petitioner’s capacity to form the special intent required under section 422; she did not conclude that petitioner would have been unable to form the necessary intent. In discussing her diagnosis and the symptoms of the conditions in general, stating that it was “likely” petitioner was suffering from mania and psychotic features caused by his bipolar disorder at the time of the offense and observing that this “appear[ed]” to have impaired aspects of his self-control and perception, Dr. Gregory was addressing effect petitioner’s mental illness actually had on his mental state at the time. “[S]ections 28 and 29 do not prevent the defendant from presenting expert testimony about any psychiatric or psychological diagnosis or mental condition he may have, or how that diagnosis or condition affected him at the time of the offense, as long as the expert does not cross the line and state an opinion that the defendant did or did not have the intent, or malice aforethought, or any other legal mental state required for conviction of the specific intent crime with which he is charged.” (People v. Cortes (2011) 192 Cal.App.4th 873, 908.) As respondent acknowledges, Dr. Gregory’s declaration did not offer an opinion on the ultimate issue of fact—whether petitioner had the requisite specific intent at the time of the incident.
E.
In order to prevail on his claim of ineffective assistance of counsel, petitioner must also show that if his attorney had investigated and presented a diminished actuality defense, there is a reasonable probability the jury would have reached a more favorable verdict. Had counsel presented this defense based on Dr. Gregory’s testimony, petitioner would have been entitled to have the jury instructed pursuant to CALCRIM No. 3428, which would have informed the jury that the evidence showing the defendant may have suffered from a mental disease, defect or disorder may be considered “only for the limited purpose of deciding whether, at the time of the charged crime, the defendant acted [or failed to act] with the intent or mental state required for that crime,” and that the “People have the burden of proving beyond a reasonable doubt that the defendant acted [or failed to act] with the required intent or mental state.” Petitioner maintains that if Dr. Gregory’s testimony had been presented and this instruction given, at least some jurors would have had a reasonable doubt as to whether he had the specific intent required for conviction.
Respondent maintains that petitioner has not shown be was prejudiced by counsel’s failure to investigate and present a diminished actuality defense because the evidence that petitioner intended his words to be taken as a threat was overwhelming. Respondent reviews the various threatening statements reflected in the recordings and Canul’s testimony and emphasizes that petitioner was not “randomly shouting a series of disconnected ideas,” but rather targeted Canul, against whom petitioner harbored a grudge for evicting him from the McDonald’s on this and prior occasions. As discussed above, respondent ignores the potential significance of the evidence Dr. Gregory could have provided. The evidence of petitioner’s intent that Canul take his threat as an actual threat to kill is overwhelming only if it can be inferred that petitioner’s words and conduct reflected his true intention. Absent any evidence that petitioner, at the time of the incident, was suffering from a mental condition that affected his perception and ability to control his words and conduct, the only reasonable inference was that petitioner’s intent was congruent with his words and conduct. Dr. Gregory’s declaration indicates that her testimony would have provided a reasonable basis for questioning that inference. Testimony that permits the jury to infer that the defendant did not actually have the necessary specific intent is permissible. (People v. Cortes, supra, 192 Cal.App.4th at p. 912.)
Respondent takes issue with petitioner’s argument that Dr. Gregory would have been able to testify to the “numerous ways in which petitioner’s mania and psychosis affected him at the time of the offense, including causing irritable mood, aggressive yelling, paranoid delusions, agitation, poor judgment, impaired ability to control his speech, and impaired ability to accurately perceive the situation.” Respondent argues that People v. Cortes, supra, 192 Cal.App.4th at page 911, upon which petitioner relies, would not have permitted such testimony because none of these factors would establish that petitioner did not intend Canul to take his statement as a threat. For the reasons described above, we disagree. As long as she did not discuss petitioner’s capacity to form an intention to have Canul take his statement as a threat or testify that petitioner did not actually have this intent, Dr. Gregory would have been free to testify to her diagnoses of petitioner and “the connection between [his] diagnoses, his mental state and his behavior.” (Id. at p. 910.) Petitioner was not required to prove he did not have the required intent; the prosecution was required to prove beyond a reasonable doubt that petitioner did intend Canul to take his statement as a threat. Petitioner was entitled to present expert testimony explaining why he might not have had that intent. (See People v. Young (1987) 189 Cal.App.3d 891, 906-907 [psychiatrists testified that at time of offenses defendant’s paranoid schizophrenia affected his reasoning, impaired his behavior controls and caused him to engage in obsessive and compulsive behavior]; People v. Jackson (1984) 152 Cal.App.3d 961, [defendant attempting to show he did not have the specific intent for attempted murder properly presented psychiatric testimony that stabbing of victim was compulsive behavior caused by defendant’s chronic paranoid schizophrenia].)
Petitioner argues that because trial counsel’s failure to investigate a diminished actuality defense left him incapable of making an informed tactical decision about whether to present the defense, prejudice must be presumed. Our Supreme Court has stated that it is appropriate to presume prejudice “in cases in which defense counsel wholly fails to investigate a potentially meritorious defense of which he is or should be aware, and as a result the defense is withdrawn or counsel is incapable of making an informed tactical decision with respect to whether the defense should be offered.” (People v. Williams (1988) 44 Cal.3d 883, 943.) Respondent’s argument against application of this rule amounts to little more than a restatement of its position that trial counsel made a reasonable tactical decision not to present a mental state defense.
In any event, applying the usual requiring petitioner to demonstrate prejudice, we are convinced there is a reasonable probability petitioner would have achieved a more favorable result if counsel had presented a diminished actuality defense based on Dr. Gregory’s report and declaration. While petitioner’s tirade could be viewed, as respondent urges, as a targeted and purposeful expression of petitioner’s “grudge” against Canul for having evicted petitioner from the McDonald’s, the episode was sufficiently irrational that this is far from the only conclusion to be drawn. Petitioner’s rant included politics and mistreatment of minorities; he yelled, “[y]ou better read the papers,” referred to riots in Baltimore and indictments having been announced that day in the Freddie Gray case, and to San Francisco police shooting of a man whose taser they thought was a gun. These statements were directed at Canul, but Canul had nothing to do with many of the matters petitioner was upset about. If the jury had been informed that petitioner suffered from a diagnosed mental illness that can cause manic and psychotic states, irritability, impaired self-control and impaired perception, and that a psychiatrist believed he had been in a manic and psychotic episode during the McDonald’s incident, jurors might well have questioned the intent with which petitioner told Canul, “I’ll kill you.” The issue would have been highlighted by CALCRIM No. 3428, which would have directed the jury to consider evidence of petitioner’s mental illness only for the purpose of determining whether he intended Canul to take his statement as a threat and that the prosecution had the burden of proving that petitioner did have that intent. There is certainly a reasonable probability one or more jurors would not have been persuaded beyond a reasonable doubt that petitioner intended Canul to believe that petitioner was threatening to kill him.


DISPOSITION
The trial court is directed to vacate the judgment in its entirety and set the matter for further proceedings.
The appeal is dismissed as moot.





























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Kline, P.J.


We concur:


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Richman, J.


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Stewart, J.
























People v. Hunter (A147789 & A151511)