Filed 12/3/18 P. v. Mendoza CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

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Defendant Rebecca Lee Mendoza challenges her conviction of second degree murder of her husband Michael Bradford, with personal and intentional discharge of a firearm causing death. (Pen. Code, §§ 187, 12022.53, subds. (b)-(e); statutory section references that follow are to the Penal Code unless otherwise set forth.) On appeal, defendant argues her trial counsel rendered ineffective assistance of counsel by failing to present expert testimony and request jury instruction on “intimate partner battering [(IPB)] and its effects.” (Evid. Code, § 1107.) IPB and its effects was previously known as Battered Women’s Syndrome (BWS). (In re Walker (2007) 147 Cal.App.4th 533, 536, fn. 1 (Walker).) We reject defendant’s contentions, because defendant’s trial counsel expressly stated on the record that he decided not to present an expert “as a matter of trial strategy,” and defendant fails to show that there could be no conceivable explanation for this tactical decision or that counsel failed her regarding jury instructions.

In supplemental briefing, defendant asks that we remand for resentencing pursuant to the recent amendment to section 12022.53, which now gives trial courts discretion to strike gun enhancements. (§ 12022.53, subd. (h).) We conclude remand is not necessary, because the record clearly shows the court would not have exercised discretion to strike the enhancement in that the trial court expressly stated it would not run the enhancement sentence concurrent to the murder sentence even if it had discretion to do so.

We accordingly affirm the judgment.

Facts and Proceedings

Defendant admittedly shot her husband on March 14, 2011, with her .380 handgun. After he died in August 2011, she was charged with first degree murder (§ 187) with personal and intentional discharge of a firearm causing great bodily injury or death (§ 12022.53). The prosecutor also charged defendant with misdemeanor vandalism of a truck in February 2011 (§ 594, subd. (a), Count Two), assault on Bradford with a deadly weapon (a car) on February 13, 2011 (§ 245, subd. (a)(1), Count Three), misdemeanor vandalism of a Jeep on February 17, 2011 (§ 594, subd. (a), Count Four), and exhibiting a firearm, a misdemeanor, to Bradford on March 13, 2011 (§ 417, subd. (a)(2), Count Five).

The evidence at trial included the following:

Defendant and the victim began dating in 2000 and had an on again, off again relationship for years. Both parties contributed to their toxic relationship, with arguments that sometimes turned physical. In August 2007, in a confrontation with a Kmart security guard, defendant’s husband sustained a head injury that left him with a steel plate where a portion of his skull had collapsed. Defendant and her husband split up in 2008, got back together in 2010, and married in January 2011, around the time that the husband received a $240,000 settlement from the Kmart incident. Defendant thought he would buy them a place to live but instead he spent the money on gambling and drugs and loans to friends. Defendant rented a room in a house rented by her friend Aida. The victim either stayed with defendant or at a motel managed by his brother.

Defendant’s behavior in the weeks before she shot the victim on March 14, 2011, demonstrated her anger at his staying out all night gambling and her suspicion that he was cheating on her. She told his brother and her friend that she (defendant) would kill the victim if he hurt her feelings.

On February 13, 2011, defendant was mad because she suspected her husband of cheating with his ex-girlfriend Lisa, who was sending text messages. Defendant found the victim with his friend Brian in an AutoZone parking lot. She drove her vehicle into her husband’s truck, backed up, and struck the truck a second time, almost hitting defendant who was outside the vehicle. She told the victim, “[G]ive me some money, fucker, so I can buy a gun and shoot your punk ass . . . .”

Defendant did buy a gun in February 2011. She told a friend she bought it in case she wanted to go duck hunting. Defendant told others that she would shoot her husband if he ever hurt her or pissed her off.

Also in February 2011, defendant cut the brake line and put a Tums in the gas tank of the Jeep of a woman because defendant was mad that the woman had gone gambling with the victim.

On March 13, 2011, defendant was mad at the victim for not coming home the previous night. She pulled a gun on him outside the home, scaring him. She told police she pointed the gun at his truck and jokingly told him she was going to kill his truck, and he jokingly said, “no, not my truck.”

Just after midnight, March 14, 2011, defendant texted the victim, “Where are you? call me ASAP.” Thirty-eight minutes later, she texted him, “A wise . . . man call wife with big gun and bigger temper. Chief. Call TP. - R Mendoza.” Twenty minutes later, she texted him, “Sitting bull soon become raging bull and go find sitting duck. - R Mendoza.” The victim did not respond. At 7:32 a.m., defendant texted him, “What up u fuckin up again.” And “let me no [sic] I not up 4 games call me now b4 hunting season opens - R Mendoza.”

Around 4:00 p.m. on March 14, 2011, the victim went to defendant’s home. They argued. One neighbor (whose preliminary hearing testimony was allowed because he was deceased at the time of trial) heard defendant alternately laughing and arguing but did not hear a second voice. He then saw defendant fire gunshots at the victim from the porch, as the victim ran toward his truck. A different neighbor heard gunshots and someone cheering “Woo hoo.” That neighbor then looked and saw defendant fall to her hands and knees and cry “Oh my God, Oh my God. I shot him.”

Paramedics transported the comatose victim to the hospital. He sustained a gunshot wound to the neck that hit the spinal canal, leaving him a quadriplegic. He could not drink, eat, breathe or talk on his own. He died on August 7, 2011, from complications from the gunshot wound to the neck, i.e., hemorrhagic pneumonia resulting in sepsis.

At the shooting scene, defendant told a fire captain and a police officer that she shot the victim because he had choked her. She had no visible injury and, though she complained of shortness of breath, her breathing was not labored. The victim weighed about 110 pounds and was five feet and nine inches tall, whereas defendant was 50 pounds heavier but six inches shorter. Defendant’s reply brief on appeal claims the victim weighed 110 pounds only at the time of his death after being a quadriplegic for several months. However, defense counsel argued to the jury that a 110-pound man is stronger than a heavier woman because men have more muscle mass.

The jury heard defendant’s recorded post-arrest statement to police, in which she said she and the victim argued that day about money and his going to casinos with other women. He wanted to leave, but she blocked the door. He shoved her face down on the bed. She has COPD and could not breathe. He got up and tried to leave. She grabbed the gun from under the mattress to “scare” him because she was “mad.” He ran from the bedroom. She followed and fired the gun in the hallway or front room, but missed. She fired again from the porch as he ran to the driver’s door of his truck. She followed and shot him while he was crouched down next to his truck. She saw him bleeding on the ground next to his truck.

Various friends and family of the victim or defendant testified to their peaceful or violent nature.

Defendant testified in her own defense. She recounted multiple episodes of her husband slapping, hitting, punching, and pushing her in years past. She also said he verbally and emotionally abused her. She put up with it because she loved him. The most recent physical incidents (before the day she shot him) were in 2008 when they were split up but still saw each other. They got into a fight in a car, and he hit her and tried to run her over when she jumped out of the car. Later in the year, he shoved her and hit her in the chest outside her mother’s retirement home.

Defendant claimed the victim told her stories that scared her, e.g., that he knew how to dispose of a dead body by feeding it to pigs, and when he was a child his uncle paid him to chop off puppies’ heads with a shovel. She claimed she bought the gun because her husband feared home invasions and his father told her some girls would be after her for refusing to move her truck. She also claimed that, after she bought her gun in February 2011, her husband bought a gun to kill the Kmart guard who caused his head injury, even though her husband had not expressed a desire to kill the guard since 2007.

Defendant denied some events, like threatening her husband with the gun before the day she shot him.

Defendant shot her husband because he tried to kill her. She was mad because he told her had been with Lisa all night, and he did not care that Lisa had been sending defendant harassing text messages. He threw defendant on the bed, held her down, and tried to suffocate her. She has asthma and COPD and could not breathe. She passed out. When she came to, her husband was not there. She grabbed her gun and went after him. She saw him in the front room and fired her gun because she thought he was going to his truck to get his gun and kill her. She fired her gun at him when he was outside the house to scare him away from his truck. She did not recall shooting from the porch.

The prosecutor urged the jury to disbelieve defendant’s claims that she was afraid of her husband or that he provoked her to shoot him. She stayed with him; she married him; she provoked him. A person who was afraid of her husband would not seek him out at an AutoZone parking lot and ram her vehicle into his truck. She admitted to detectives that if she gets mad and then her husband gets mad, he leaves.

Defense counsel argued to the jury, “This case is about Rebecca Mendoza, an abused person, shooting the abuser in self-defense, in the heat of passion.” Counsel argued defendant was “an abused person entangled in a toxic, long-term relationship with the abuser.” In closing argument consuming about 100 pages of reporter’s transcript, trial counsel reviewed every episode of physical, verbal, and emotional abuse by the victim. Counsel also told the jury that women who are victims of domestic violence sometimes stay in abusive relationships because they still love their abuser. They suffer in silence because their self-esteem has been reduced to nothing.

In the instructions on justifiable homicide self-defense and voluntary manslaughter imperfect self-defense, the court instructed the jurors that, if they found the victim threatened or harmed defendant in the past or if defendant knew that the victim had threatened others in the past, the jurors may consider that information in deciding whether defendant’s conduct and beliefs were reasonable. And someone who has been threatened or harmed in the past is justified in acting more quickly or taking greater self-defense measures against that person. The court also instructed the jury on provocation and heat of passion.

The jury found defendant not guilty of first degree murder, but guilty of second degree murder, and found the gun enhancement to be true. The jury also found defendant guilty of the two counts of vandalism and exhibiting a firearm (Counts Two, Four, and Five), but the jury found defendant not guilty of assault with a car (Count Three).

The trial court sentenced defendant to an aggregate term of 40 years to life in prison (15 years to life for murder, plus 25 years to life for the gun enhancement). The court granted defendant credit for time served as to the other counts.

Discussion

I

Claim of Ineffective Assistance of Counsel

Defendant argues her trial counsel, by failing to present expert evidence of IPB aka BWS under Evidence Code section 1107 and failing to request jury instruction on this theory, rendered ineffective assistance of counsel in violation of the Sixth Amendment of the United States Constitution. We conclude she fails to demonstrate ineffective assistance of counsel.

The prosecution moved in limine to prohibit the defense from offering any expert testimony about “Battered Women’s Syndrome” on the ground that the defense had not disclosed any such expert. Defense counsel confirmed for the court that he had not disclosed any expert witness. The prosecutor requested that the defense also be prohibited from eliciting lay opinion that defendant suffered from “some sort of syndrome.” Defense counsel stated: “I’m not going to offer any expert opinions or any lay opinions from anyone, other than my client, that she suffered from any Battered Women’s Syndrome, but I think that there could be corroborating witnesses to the incidents against my client, but no, I’m not presenting anything entitled Battered Women’s Syndrome, no. These would be percipient witnesses or -- no Battered Women’s Syndrome. Of course, if I had an expert witness, I would have given it to them a long time ago, but I’m not choosing to do that as a matter of trial strategy.” There was no further ruling.

To demonstrate ineffective assistance of counsel, defendant must show (1) trial counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient representation prejudiced her, i.e., that there is a reasonable probability that defendant would have obtained a more favorable result, but for counsel’s failings. (Strickland v. Washington (1984) 466 U.S. 668, 687-696; People v. Centeno (2014) 60 Cal.4th 659, 674-675; People v. Ledesma (1987) 43 Cal.3d 171, 217-218.)

“In a criminal action, expert testimony is admissible by either the prosecution or the defense regarding intimate partner battering and its effects, including the nature and effect of physical, emotional, or mental abuse on the beliefs, perceptions, or behavior of victims of domestic violence . . . .” (Evid. Code, § 1107, subd. (a).) This statute is “intended as a rule of evidence only and no substantive change affecting the Penal Code is intended.” (Id. at subd. (d).) When a defendant claims she killed her abuser in self-defense, the defense has the option to use expert testimony about battering syndrome and its effects on abused persons, to enable the jury to overcome stereotyped impressions about women who remain in abusive relationships. (People v. Humphrey (1996) 13 Cal.4th 1073, 1086.)

However, although an attorney may present expert testimony to assist the jury, there is no support for the claim that expert testimony must be presented by a defense attorney in every case. (People v. Datt (2010) 185 Cal.App.4th 942, 952.)

The decision whether to call a particular witness is a matter of trial tactics and strategy which a reviewing court generally may not second-guess, unless defendant shows an unreasonable failure to investigate. (People v. Bolin (1998) 18 Cal.4th 297, 334.) Defendant fails to show failure to investigate, and defense counsel’s arguments to the jury display his familiarity with the subject.

“When examining an ineffective assistance [of counsel] claim, a reviewing court defers to counsel’s reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance.” (People v. Mai (2013) 57 Cal.4th 986, 1009.) “On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation.” (Ibid.)

Here, defendant relies on the third option, arguing there could be no satisfactory explanation for failing to call an IPB expert to refute the prosecution’s claim that defendant committed murder.

However, we can easily conceive of reasonable tactical explanations, and defendant fails to show otherwise. Trial counsel may have concluded that, given the particular facts of this case, a defense expert witness -- upon cross-examination by the prosecution -- could end up hurting rather than helping the defense case as, perhaps, by testifying that defendant did not demonstrate the usual attributes of a battered woman. Such testimony could undermine defense counsel’s credibility with the jury. And trial counsel may have determined that an expert was unnecessary in order for counsel to argue to the jury, as he did, the parts of IPB favorable to defendant, e.g., that abused women sometimes stay in abusive relationships, are embarrassed to report the abuse, and continue to love their abusers.

We do not hold that defendant’s bullying behavior toward her husband was necessarily inconsistent with battered women’s syndrome. We merely observe conceivable reasonable explanations for counsel’s performance, i.e., that he concluded an expert would not support and/or the jury would not buy a theory that defendant’s bullying behavior and shooting her husband was a result of intimate partner battering by the husband or that defendant shot her husband out of fear.

Courts finding ineffective assistance of counsel in the failure to present a BWS expert had affidavits from trial counsel admitting their mistake. (People v. Day (1992) 2 Cal.App.4th 405, 412, 415, 417 [in motion for new trial, trial counsel declared he was unaware of BWS and would have called an expert witness had he known about it]; Walker, supra, 147 Cal.App.4th at p. 542 [trial counsel’s declaration admitted he should have put on BWS expert evidence but did not because he was preoccupied with his own health issues].)

We conclude defendant fails to show trial counsel rendered ineffective assistance by failing to call an expert witness on IPB and its effects.

Our conclusion that defendant fails to show ineffective assistance for failure to call an expert witness necessarily defeats defendant’s contention that “BY FAILING TO OFFER EXPERT TESTIMONY ON [IPB] SYNDROME, DEFENSE COUNSEL DEPRIVED APPELLANT OF COMPLETE INSTRUCTION ON APPELLANT’S THEORY OF THE CASE.”

Under that heading, however, defendant adds a separate complaint that trial counsel failed to request pinpoint instructions to inform the jury that it could consider that defendant suffered domestic violence or abuse in evaluating her credibility, whether she subjectively believed that she was in imminent danger, and whether her belief was reasonable. She notes the totality of the jury instruction conference is not included in the record on appeal.

As defendant acknowledges, the trial court’s jury instruction on justifiable homicide, self-defense, included the following:

“When deciding whether the defendant’s beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant’s beliefs were reasonable, the danger does not need to have actually existed.

“The defendant’s belief that she was threatened may be reasonable even if she relied on information that was not true. . . .

“If you find that Michael Bradford threatened or harmed the defendant or others in the past, you may consider that information in deciding whether the defendant’s conduct and beliefs were reasonable.

“If you find that the defendant knew that Michael Bradford had threatened or harmed others in the past, you may consider that information in deciding whether the defendant’s conduct and beliefs were reasonable.

“Someone who has been threatened or harmed by a person in the past, is justified in acting more quickly or taking greater self-defense measures against that person.

“A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until the danger of death or great bodily injury has passed. This is so even if safety could have been achieved by retreating.”

The court’s instruction to the jury on voluntary manslaughter, imperfect self-defense, included the following:

“In evaluating the defendant’s beliefs, consider all the circumstances as they were known and appeared to the defendant. [¶] If you find that Michael Bradford threatened or harmed the defendant or others in the past, you may consider that information in evaluating the defendant’s beliefs. [¶] If you find that the defendant knew that Michael Bradford had threatened or harmed others in the past, you may consider that information in evaluating the defendant’s beliefs.”

The court also instructed the jury on provocation and heat of passion.

On appeal, defendant argues these instructions were deficient because they did not include language contained in the instruction given when an IPB expert testifies (CALCRIM No. 851), i.e., that in considering reasonableness the jury is to “consider all the circumstances as they were known by or appeared to the defendant.” However, the instructions given to this jury did contain that exact language.

Defendant also complains the instructions did not use the language of IPB instruction (CALCRIM No. 850) that “You may consider [expert IPB] evidence only in deciding whether or not [the defendant’s] conduct was not inconsistent with the conduct of someone who has been abused, and in evaluating the believability of her testimony.” Since that instruction applies only when an IPB expert testifies, defendant was not entitled to such instruction.

Defendant argues counsel should have requested a pinpoint instruction for the jury to consider defendant’s having been abused in evaluating her credibility. She suggests she would have liked an instruction that abuse may be emotional as well as physical. However, as defendant acknowledges, a defendant is not entitled to a pinpoint instruction that is repetitive or highlights specific evidence. (People v. Wright (1988) 45 Cal.3d 1126, 1137.)

Defendant fails to show ineffective assistance of counsel.

II

Recent Amendment to Section 12022.53

Defendant argues the case should be remanded for resentencing to allow the trial court to exercise its newly-enacted discretion to strike the gun enhancement under the recent amendment to section 12022.53, effective January 1, 2018. (Stats. 2017, ch. 682, § 2 (Sen. Bill No. 620).) The amendment added subdivision (h), which provides, “The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law.” (§ 12022.53, subd. (h).)

The amendment is retroactive and applies to cases such as defendant’s which were not yet final on appeal when the amendment took effect. (People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091.) This generally entitles a defendant to limited remand to allow the trial court to exercise its discretion. (Ibid.)

However, remand is not needed where it would serve no purpose, i.e., where the record clearly shows the trial court would not have stricken the gun enhancement if it had the discretion to do so when it imposed sentence. (People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896.)

Thus, the trial court stated that, even if it could run the sentence for the gun enhancement concurrent to the sentence for the murder, it would still order consecutive sentences, because “I heard the evidence in this case and the jury came back with their verdict, which was second degree murder with use of a gun, and the way the statute is, it shall be run consecutive. [¶] Even if the statute didn’t say that, I would feel based on the facts that you shot five different times, after sending those texts, that you were a sitting bull with a gun and you were very angry, and that’s when, as human beings, we need to learn not to go after somebody with a gun when we’ve had it. Walk away. You didn’t walk away.” (Italics added.)

We decline defendant’s request for remand.

Disposition

The judgment is affirmed.

HULL , Acting P. J.

We concur:

MAURO , J.

HOCH , J.