Filed 3/8/16 P. v. Villegas CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B257830

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. NA094373)
         v.

JOSEPH VILLEGAS,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, James
Otto, Judge. Affirmed.
         R.J. Manuelian for Defendant and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Stephanie A. Miyoshi and
Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.


                                             ____________________
                                    INTRODUCTION
       Joseph Villegas appeals from a judgment of conviction entered after a jury found
him guilty of first degree murder (Pen. Code, § 187, subd. (a)) and found true the
allegations that he personally used, and personally and intentionally discharged a firearm,
in the commission of the crime, causing great bodily injury or death (id., § 12022.53,
subds. (b), (c) & (d)). The jury found not true the allegation that the crime was
committed for the benefit of a criminal street gang (id., § 186.22, subd. (b)(1)(C)). The
trial court sentenced him to 50 years to life in prison. On appeal, defendant challenges
the denial of his motion for new trial, claiming that his trial counsel rendered ineffective
assistance by failing to fully investigate and raise the issue of voluntary intoxication in
mitigation of his crime. We affirm.
                  FACTUAL AND PROCEDURAL BACKGROUND
A.     THE MURDER TRIAL
       On December 31, 2012, David Diaz had a party at his house in Wilmington,
California. Diaz and a number of his guests were members of a gang called Westside
Wilmas, including defendant, Juan Quezada, Ruben Krueger, and Armando Soriano
(a.k.a., “210”). During the party, numerous gunshots were fired, and three gang members
were hit: Quezada was fatally shot in the back of the head; defendant was shot in the
legs; and Krueger was shot in the head and superficially wounded.
       At trial, Krueger was the only eyewitness who identified defendant as the person
who shot Quezada. He testified that defendant and Quezada were arguing about which
was the first Westside Wilmas clique. Krueger was a couple of feet away from them and
heard a gunshot when he was looking down at his phone. When he looked up, Krueger
saw defendant pointing a gun at Quezada, who was grabbing the back of his head. The
gun, a black 9 millimeter semi-automatic with an extended magazine, appeared to jam as
defendant tried to shoot again. Krueger saw defendant try to unjam the gun after it
jammed. Seconds later, someone other than defendant fired five to ten more shots.




                                              2
Krueger tried to get away, but was struck in the back of the head and fell. He saw
defendant run past him toward the street while carrying a gun.1
       Krueger admitted to being seriously impaired when he witnessed the shooting. He
was high on crystal methamphetamine, had been drinking alcohol, and had not slept for a
day or two. He also acknowledged that he was testifying for the prosecution under a
grant of use immunity, and that the police had relocated him and his family and given
them money to move in exchange for his cooperation.
       Diaz and Soriano also testified at trial. Diaz said that he heard a few gunshots
while inside the house but did not hear any argument or see the shooting. When Diaz
went to the backyard, he saw defendant on the ground and “another body” by the garage.
Diaz never saw defendant with a gun and did not see defendant run toward the street after
the shooting. Soriano testified he was not at the party, even though Krueger saw him
there that day. Soriano did acknowledge, however, that he had received a phone call
from Quezada’s brother, Freddy Quezada (Freddy), demanding to know what happened
to Quezada. When Soriano said he did not know, Freddy became angry, and Soriano
ended the call. At Quezada’s funeral, Freddy approached Soriano and offered him
$5,000 to testify about his brother’s murder, but Soriano refused.
       Freddy denied offering Soriano any money. Freddy testified that, after the
shooting, he received a phone call from someone who identified himself as a member of
the Westside Wilmas named “210.” The caller said that he saw defendant shoot Quezada
after the two had gotten into an argument, and that defendant then tried to shoot “210”
but his gun jammed. As defendant was trying to unjam it, “210” grabbed his own gun
and shot at defendant’s legs to prevent him from escaping. “210” was afraid he would be
arrested for attempted murder and asked for Freddy’s help.
       The ballistic evidence at trial revealed that at least two guns were involved in the
shooting, though only one gun was recovered. The police found that gun and two


1      Krueger previously had identified defendant as the shooter when speaking to the
police after being released from the hospital.


                                             3
magazines in a truck belonging to Diaz’s father that was parked across the street from his
house. The larger magazine had been inserted into the gun incorrectly. No usable
fingerprint or DNA evidence was found on the gun, the bullets, or the casings found at
the scene.
B.     NEW TRIAL MOTION
       After the trial, attorney R.J. Manuelian substituted in as defense counsel in place
of Michael D. Shook. Manuelian filed a motion for new trial based on a claim of
ineffective assistance of counsel. He asserted that Shook had “committed egregious error
by not conducting a thorough interview of [defendant] prior to trial, ignoring his claim
that he was intoxicated at the time of this incident,” and failing to “us[e] a forensic
blood/alcohol expert to establish high levels of intoxication to negate the murder element
of malice aforethought.”
       In support of the new trial motion, Manuelian submitted his declaration describing
his interview with defendant. Defendant was unable to provide any details about the
shooting. He said that “he was inebriated from drinking alcohol all night and could not
remember what happened other than becoming more lucid while he was at the hospital
after receiving medication.” Defendant said that he reported this information to Shook—
whom he met only once—and that Shook “did not ask any follow up questions.” In
addition to his declaration, Manuelian submitted evidence that defendant’s blood-alcohol
level was above .20 percent when he was treated for his gunshot injuries.
       The trial court conducted an evidentiary hearing on the new trial motion. Shook
was the only witness to testify.2 He explained that he was privately retained by
defendant, and that he had spent about five hours with his client prior to trial. While
defendant told him that he had been drinking beer all day, he did not say that he had
smoked methamphetamine. Defendant never told him that he could not remember what



2     The only other evidence before the trial court was a stipulation to the testimony as
expressed in the declaration of the defendant’s forensic expert.


                                              4
happened because of his intoxication. Shook obtained defendant’s medical records, but
chose not to have them reviewed by a forensic expert.
       Shook’s decision not to pursue the intoxication evidence was deliberate and
tactical. He explained that, throughout the entire representation, defendant claimed that
he did not shoot Quesada. Shook testified that “from the very moment [he] met
[defendant], and consistently throughout, he denied his culpability. He said he didn’t do
it.” Shook also met frequently with defendant’s wife and mother, who told him that
defendant steadfastly maintained that he did not do the shooting. Thus, Shook elected to
proceed with an identification defense, challenging the prosecution’s evidence that
defendant was the shooter.
       In making this election, Shook was aware that intoxication potentially could
negate an element of the murder charge. But he chose not to follow up on the
intoxication evidence because “it was inconsistent with [his] theory of the defense.”
Moreover, defendant never claimed that he was so intoxicated that he could not recall
whether he had shot Quesada. On the contrary, defendant repeatedly maintained his
innocence. Shook testified that during their conversations, defendant described the
sequence of events surrounding the shooting and was “consistent throughout.” Defendant
said he was leaning against a wall or fence when the shooting started, and he tried to
leave but could not stand up because he had been shot in the legs. He crawled to a fence,
pulled himself over it, and went down an alley, where the paramedics found him.
Though he did experience blackouts, none occurred during the shooting. Defendant “was
very adamant that he did not fire the weapon, did not handle the weapon, did not shoot
the victim.”
       Based on all the evidence, Shook decided to contest identification, rather than
raise intoxication, at trial. He concluded that he had a better chance of prevailing on his
chosen defense theory because of the problems in the prosecution’s case. The
prosecution had no physical evidence tying defendant to the murder weapon; and he
could attack the reliability of the prosecution’s key witness, Krueger, by offering
significant impeachment evidence, including Diaz’s testimony that defendant did not run

                                             5
toward the street after the shooting, as Krueger claimed. Having opted to challenge the
identification evidence, Shook did not believe he also “credibly” could offer the jury an
alternative intoxication theory. For this reason, Shook did not investigate that defense
theory further.
       Upon the conclusion of the hearing, the trial court denied the motion for a new
trial. Having “sat through this trial” and having heard the evidence at the hearing on the
new trial motion, the court concluded: “Mr. Shook obviously selected a strategy that was
consistent with what his client was telling him, and it was the best strategy that he could
use in this case to get the result his client was asking him and demanding him to get.”
The court further concluded that Shook had no obligation to conduct additional
investigation into an intoxication theory.
                                      DISCUSSION
       Defendant’s entire appeal is based on his claim that his prior counsel rendered
ineffective assistance by failing to fully investigate and raise an intoxication theory. This
claim must be rejected under controlling legal principles.
A.     THE CONTROLLING LEGAL PRINCIPLES
       The defendant moved for a new trial based on his claim of ineffective assistance of
counsel. Because of its constitutional dimension, such a claim, though not set forth in
Penal Code section 1181, is a well-recognized basis for obtaining a new trial. (People v.
Fosselman (1983) 33 Cal.3d 572, 582-583; accord, People v. Callahan (2004) 124
Cal.App.4th 198, 209 [noting that such claims implicate due process].)
       The seminal case establishing the standard for an ineffective-assistance claim
under the Sixth Amendment is Strickland v. Washington (1984) 466 U.S. 668 [104 S.Ct.
2052, 80 L.Ed.2d 674] (Strickland). As explained by the California Supreme Court, the
Strickland standard requires that the defendant carry a two-part burden. (People v.
Ledesma (2006) 39 Cal.4th 641, 745-746; accord, People v. Lopez (2008) 42 Cal.4th 960,
966.) First, the defendant must establish that his counsel’s performance “‘fell below an
objective standard of reasonableness . . . under prevailing professional norms.’
[Citations.]” (Ledesma, supra, at pp. 745-746.) If the defendant fails to satisfy this

                                              6
burden, counsel’s performance shall be presumed to be competent and his or her actions
shall be presumed to be explicable “‘as a matter of sound trial strategy.’” (Id. at p. 746.)
Second, the defendant must demonstrate prejudice by showing by a “‘reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.’ [Citation.]” (Ibid.)
       The United States Supreme Court has admonished courts to exercise caution in
evaluating a lawyer’s performance:
       “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.)
       This strong presumption becomes virtually impenetrable when defense counsel
engages in informed strategic decision making. A trial requires a complex series of
tactical decisions. Among other complicated tasks, competent counsel must consider the
implications of presenting potentially conflicting or confusing defense theories. (See
People v. Cunningham (2001) 25 Cal.4th 926, 1007.) “Tactical errors are generally not
deemed reversible, and counsel’s decisionmaking must be evaluated in the context of the



                                              7
available facts.” (People v. Bolin (1998) 18 Cal.4th 297, 333; accord, People v. Vines
(2011) 51 Cal.4th 830, 876.)3
B.     THE INEFFECTIVE ASSISTANCE CLAIM
       Defendant’s ineffective assistance claim—faulting trial counsel for choosing one
defense theory over another—collapses under the weight of the Strickland standard. He
contends that Shook’s performance was objectively unreasonable because he failed to
investigate and present evidence of intoxication, and because he neglected to request jury
instructions on voluntary intoxication and involuntary manslaughter. We reject this
contention, finding that defense counsel made a sufficiently informed strategic decision
that is not subject to judicial second-guessing with the benefit of hindsight.
       The decision whether to present seemingly inconsistent defenses is one of the
more difficult ones facing trial counsel. Though familiar to lawyers and judges, the
concept of alternative theories may not be as easy for jurors to grasp, at least when the
theories appear conflicting. For many jurors, it could be confusing to hear defense
counsel argue that the defendant did not kill the victim, but that if he did do so, he did not
know what he was doing because he was unconscious at the time. This is not to say that
the two theories cannot be logically and factually squared. But it is undeniable that the “I
did not do it” defense may be seriously undermined by the “I was unconscious when I did
it” defense. The decision whether to advance one or both defenses will depend on
numerous variables, including an evaluation of the strengths and weaknesses of each.
       In this case, Shook had a client who repeatedly insisted that he did not shoot
Quezada. The prosecution had no physical evidence to link defendant to the murder
weapon, as there was no fingerprint or DNA evidence on the gun. Nor did the
prosecution have a confession. What the prosecution had was a single eyewitness to the



3      After hearing Shook’s testimony, the trial court concluded that Shook made a
reasonable strategic decision. We review that conclusion for an abuse of discretion, at
least with respect to the findings of fact underlying that conclusion. (See People v.
Callahan, supra, 124 Cal.App.4th at pp. 209-211.)


                                              8
shooting, Krueger—who was quite vulnerable to attack. Krueger was a
methamphetamine user who was high on a powerful combination of methamphetamine
and alcohol and who was seriously sleep deprived at the time of the shooting. In addition
to challenging Krueger’s reliability in recalling and reporting facts, Shook had substantial
evidence of bias in the form of money and immunity that Krueger received in exchange
for assisting the prosecution. Shook also had a witness, Diaz, who contradicted Krueger
on a material fact. Thus, the information known to Shook supported a reasonable tactical
decision to focus the defense on challenging the identification of defendant as the
shooter. (People v. Hinton (2006) 37 Cal.4th 839, 877.)4
       On the other hand, an intoxication theory faced significant legal and factual
obstacles. Legally, even if the defendant were to prevail on this challenging theory, his
success would only be partial. Under California law, voluntary intoxication can be used
to negate the specific intent to kill required to prove second degree murder under an
express malice theory and the deliberation and premeditation required to prove first
degree murder. (Pen. Code, § 29.4, subd. (b); accord, People v. Turk (2008) 164
Cal.App.4th 1361, 1378.) Because voluntary intoxication does not negate the mental
state required to prove implied-malice murder, a defendant will be liable for second
degree murder if he or she acts with conscious disregard for human life while voluntarily
intoxicated. (Turk, supra, at pp. 1376-1377 [“To the extent that a defendant who is
voluntarily intoxicated unlawfully kills with implied malice, the defendant would be
guilty of second degree murder.”].) For a homicide to be considered involuntary
manslaughter due to voluntary intoxication, it must be shown that the defendant was
intoxicated to the point of being unconscious. (Id. at pp. 1378-1379.) A defendant is




4     This defense depended largely but not entirely on attacking Krueger’s testimony.
Freddy testified that Soriano had told him that defendant was the shooter, though this
evidence also turned on a credibility determination—i.e., whether to believe Soriano or
Freddy.


                                             9
“unconscious” if he “lack[ed] awareness of his actions during the course of the offenses.”
(People v. Halvorsen (2007) 42 Cal.4th 379, 418.)
       Factually, the challenges facing Shook in presenting an intoxication theory were
formidable. Defendant did not suggest to Shook that he was unable to recall the shooting
or that he was unaware of his actions during the shooting. On the contrary, he adamantly
denied being the shooter. Beyond the persistent denials, he explained details leading up
to and following the shooting. Before the shooting, he was leaning up against a wall or
fence, and as soon as he heard the gunshots, he attempted to leave but was unable to do
so because he had been shot in the legs. He recalled crawling to a fence and pulling
himself over it to escape the shooting. Defendant’s memories were specific and his
actions purposeful, reflecting a substantial level of cognitive functioning. In addition,
Krueger described defendant’s actions as being deliberative and goal-oriented.
Defendant was lucid enough to argue about gang history, and when his gun jammed
while shooting Quezada, he had sufficient cognitive awareness to recognize the problem
and attempt a solution so that he could continue shooting.
       The facts known to Shook thus did not suggest a promising intoxication theory.
Negating specific intent to kill would be difficult—especially with evidence that
defendant attempted to unjam his gun to continue shooting at close range—and would
expose defendant to 40 years to life in prison even if he were successful. As for
involuntary manslaughter, defendant’s exposure would be far less (14 years), but so were
his chances of success. Indeed, it is far from certain that defendant would have been
entitled to an involuntary manslaughter instruction on the facts here.5 (People v.




5      In his new trial motion, defendant claims that he told Shook that he “could not
remember what happened on the night of [the] incident” other than “waking up at the
hospital and being informed that [he] was shot.” In denying the motion, the trial court
clearly rejected defendant’s post-conviction statement and accepted Shook’s account of
what he had been told, finding that “Shook obviously selected a strategy that was
consistent with what his client was telling him.” Thus, we evaluate Shook’s performance
based on his account of what he was told. (Strickland, supra, 466 U.S. at p. 689

                                             10
Halvorsen, supra, 42 Cal.4th at pp. 418-419 [holding that the trial court properly refused
the requested unconsciousness instruction when the defendant’s testimony demonstrated
purposeful action, despite expert’s opinion that the defendant’s blood-alcohol level
approached .20 percent and that the defendant frequently experienced memory losses
from excessive drinking]; People v. Carlson (2011) 200 Cal.App.4th 695, 704 [holding
that the evidence was insufficient to support an unconsciousness instruction in a murder
case despite defendant’s testimony that she did not recall driving the car involved in her
passenger’s death and her expert’s opinion that the defendant “suffered an alcohol-related
blackout on the night of the accident”].)
       On appeal, defendant recognizes that the “evidence of voluntary intoxication
would have conflicted with the identification defense presented at trial,” but faults Shook
for not “fully” investigating this potential defense theory. However, this is not the
standard of performance by which courts measure whether counsel rendered ineffective
legal assistance. “In Strickland, the Supreme Court specifically addressed counsel’s duty
to investigate and made clear courts should not equate effective assistance with
exhaustive investigation of potential mitigating evidence: ‘[S]trategic 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 Andrews (2002)
28 Cal.4th 1234, 1254, quoting Strickland, supra, 466 U.S. at pp. 690-691.)
       Applying the Strickland standard, we cannot say that Shook’s failure to further
investigate the intoxication evidence was constitutionally deficient. When Shook made
his decision, he had information that his client had been drinking heavily and was


[requiring that evaluation of defense counsel’s performance be made from “counsel’s
perspective at the time”]; accord, People v. Bolin, supra, 18 Cal.4th at p. 333 [same].)


                                             11
intoxicated before the shooting, but he also knew that his client had specific recollections
surrounding the shooting. Not only did defendant adamantly deny firing the weapon, he
provided details leading up to and following the shooting. This level of awareness did
not bode well for an intoxication theory. Moreover, because an intoxication theory
would conflict with the identification defense, Shook would have to be prepared to
concede that defendant was the shooter (or at least assume the risk that the jury would
construe the intoxication theory as so conceding). This concession, in turn, would
undercut the intoxication theory because it effectively would prevent Shook from
challenging Krueger’s testimony that defendant was intent on killing even after his gun
jammed.
         Based on the information he had at the time, Shook was in a position to make a
reasonable professional judgment that he would not jettison the identification defense in
favor of an intoxication theory that had a limited chance of success and that potentially
would yield only a limited benefit if successful. This case thus falls within the principle
that “valid strategic choices are possible even without extensive investigative efforts.”
(In re Andrews, supra, 28 Cal.4th at p. 1254.)6 This distinguishes the cases upon which
defendant relies. (E.g., People v. Mozingo (1983) 34 Cal.3d 926, 934 [counsel neglected
to investigate an insanity or diminished capacity defense in favor of “an uncorroborated
alibi defense” despite defendant’s confession that implicated him in the crime but raised
serious mental health issues]; Crandell v. Bunnell (9th Cir. 1998) 144 F.3d 1213, 1217
[counsel failed to do virtually any investigation and thus neglected to develop any
defenses], overruled on other grounds by Schell v. Witek (9th Cir. 2000) 218 F.3d 1017,
1025.)
         In short, defendant has not demonstrated that he was deprived of his constitutional
right to the effective assistance of counsel. (See People v. Mesa (2006) 144 Cal.App.4th
1000, 1007 [defendant bears the burden of demonstrating inadequate representation].)


6      From this conclusion it follows that Shook was not ineffective in failing to request
jury instructions based on voluntary intoxication and involuntary manslaughter.


                                              12
“[C]ounsel does not render ineffective assistance by choosing one or several theories of
defense over another. [Citation.]” (People v. Cunningham, supra, 25 Cal.4th at p. 1007.)
This is especially true when the choice is between seemingly inconsistent theories. (Ibid.
[arguing that the defendant was too intoxicated to have intended to kill “would have
conceded defendant was the killer, in contravention of the chief defense theory”]; accord,
People v. Thomas (1992) 2 Cal.4th 489, 531-532 [“[T]he inconsistency inherent in
arguing both innocence and lack of premeditation or deliberation would be apparent to
the jury and would likely draw prosecutorial comment. That the two arguments are not
absolutely incompatible does not vitiate a choice to make one or the other.”].) Thus,
defendant’s claim on appeal is without merit.7
                                     DISPOSITION
       The judgment is affirmed.



                                                 BLUMENFELD, J.*


We concur:



              PERLUSS, P. J.



              ZELON, J.


7      Defendant also criticizes Shook for not spending enough time with him preparing
his defense. While this may be a relevant factor in evaluating the substance of a claim, it
does not by itself establish a claim. “[A] presumption of ineffectiveness based on time
records alone would fly in the face of all directives that defendant must show
ineffectiveness to a demonstrable reality. [Citation.]” (People v. Duncan (1991) 53
Cal.3d 955, 967.) As discussed, defendant has not satisfied that burden here.
*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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