P. v. Fox

Filed 1/9/07  P. v. Fox CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

            APPEAL from a judgment of the Superior Court of Fresno County.  Gary S. Austin, Judge.

            Marcia C. Levine, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Julie A. Hokans and Peter W. Thompson, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

A jury found James John Fox guilty of the first degree special circumstance murder, while lying in wait, of Henry James Sevey, Jr. (James), and of the second degree murder of Tedi Petrelli (Tedi) and found true the allegations that his personal and intentional discharge of a firearm caused both deaths.^[1]  (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(15), 12022.53, subd. (d).)  The court imposed, on the first degree special circumstance murder, a life without possibility of parole term consecutive to a 25-to-life term on the firearm enhancement and, on the second degree murder, a consecutive 15-to-life term consecutive to a 25-to-life term on the firearm enhancement.

On appeal, appellant raises two issues.  First, he argues that the court violated his due process and fair trial rights by not instructing the jury that, even if he did not lose consciousness, voluntary intoxication could lower his criminal liability to involuntary manslaughter if he had neither malice nor intent to kill.  Second, he argues that his attorney rendered ineffective assistance of counsel by not objecting to the defense psychologist's rebuttal testimony for the prosecution on the ground of attorney-client privilege.  We will affirm the judgment.

SUMMARY OF FACTS

After six years of marriage and two children, James and Saskia Osborn-Sevey (Saskia) separated in May of 2002.  Marital dissolution proceedings, at times amicable, at other times hostile, ensued.  Saskia and the children stayed in the marital home.  James left, lived for a time at a cabin and for a time in an apartment, and then moved in with his mother Tedi and her husband Anthony Petrelli.

Saskia met appellant the same month she and James separated.  Four months later, he moved into the former marital home with her and the children.  A year after the separation, she pulled the children from a fire that destroyed that home and moved afterward with the children and appellant into a travel trailer on her father's property.

Sometime between 9:00 and 10:00 o'clock on the night of June 29, 2003, appellant arrived at the apartment of his long-time friend Shane Gray (Shane) where he kept a room and stayed one or two nights a week.  Appellant â€