Filed 3/22/16 P. v. Lavallee CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                       (Nevada)
                                                            ----




THE PEOPLE,                                                                                  C077212

                   Plaintiff and Respondent,                                       (Super. Ct. No. F13073)

         v.

RICHARD BRUCE LAVALLEE,

                   Defendant and Appellant.




         A jury found defendant Richard Bruce Lavallee guilty of one count of making
criminal threats. In a bifurcated proceeding, the trial court found true the special
allegations that defendant had a prior strike, a prior serious felony conviction, and had
served multiple prior prison terms. The trial court sentenced defendant to seven years
eight months in prison. On appeal, defendant contends reversal is warranted because the
prosecutor committed misconduct by misrepresenting facts during her closing argument.
Defendant further contends reversal is warranted for ineffective assistance of counsel



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because trial counsel failed to request a limiting instruction regarding his criminal
history. We disagree and affirm.
                   FACTUAL AND PROCEDURAL BACKGROUND
       In February 2013, Sue Seidle and defendant lived with defendant’s mother, Cheryl
Davenport, in Grass Valley. Around 6:00 p.m. on February 13, 2013, defendant
approached Seidle and told her she owed him money for his missing vehicle. In
response, Seidle told defendant she did not know what he was talking about. Defendant
then accused Seidle of lying, and said he “held [her] life in his hands.”
       In an attempt to get her attention, defendant repeatedly struck the couch near
Seidle in an increasingly aggressive manner while glaring at her. Eventually, Seidle said,
“Yes, Richard.” In response, defendant asked Seidle if she “knew who some people
were.” When Seidle said she did not, defendant replied, “Well they and I hold your life
in my hands.” Defendant also told Seidle that he could slit her and Davenport’s throats at
any time.
       During their conversation, defendant asked Seidle several times to call the police.
Seidle practically begged defendant to leave but he insisted he would only leave with the
police. The conversation ended when defendant told Seidle that he was either going to
strangle or execute her if she did not “do something.” Seidle ran from the house as fast
as she could and drove to her cousin’s house.
       The police were called and Clint Lovelady of the Grass Valley Police Department
responded to the cousin’s house. After talking with Seidle, Officer Lovelady contacted
defendant. Defendant admitted to Officer Lovelady that he made statements to Seidle
about slitting her throat and executing her. Defendant explained he made these
statements because Seidle and Davenport had drugged and raped him. Defendant also
explained that he asked Seidle to call the police because he was going to harm her. Based
on defendant’s statements, Officer Lovelady arrested him.



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       Dr. Eugene Roeder, a clinical and forensic psychologist, testified for the defense.
In preparation for his testimony, Dr. Roeder conducted a psychological evaluation of
defendant that was composed of three parts: (1) reviewing available records, such as
police reports, prison and parole records (including records concerning defendant’s
receipt of psychiatric treatment), and the transcript of the preliminary examination in this
case; (2) interviewing defendant; and (3) psychological testing.
       Based primarily on the psychological testing, Dr. Roeder concluded defendant was
suffering from a paranoid delusional disorder at the time of the alleged offense. He
explained that his conclusion was consistent with defendant’s history, the observations of
the people who saw defendant in February 2013, and defendant’s own report of the
incident.1 Dr. Roeder testified that a person suffering from a delusional disorder does
not perceive reality accurately, which can impact whether he or she has formed specific
intent. However, Dr. Roeder testified he could not render an opinion as to whether
defendant had a particular mental state at the time he committed the alleged offense. In
addition, he testified that it was not his opinion that one suffering from a delusional
disorder could not form a particular mental state. He also said that he did not know
whether defendant perceived his statements to Seidle as threatening.
                                      DISCUSSION
                                              I
                                 Prosecutorial Misconduct
       Defendant contends reversal is warranted because the prosecutor committed
misconduct by misrepresenting facts during her closing argument. We disagree.



1      Dr. Roeder also concluded that defendant would “qualify” as suffering from
psychoactive substance abuse due to his methamphetamine use. While Dr. Roeder stated
defendant had used methamphetamine in the past and substance abuse can cause a
delusional disorder, he testified it was more likely than not that defendant’s delusions
were not brought about by substance abuse but rather a long-standing mental disorder.

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       “The standards governing review of [prosecutorial] misconduct claims are settled.
‘A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits
misconduct, and such actions require reversal under the federal Constitution when they
infect the trial with such “ ‘unfairness as to make the resulting conviction a denial of due
process.’ ” [Citations.] Under state law, a prosecutor who uses such methods commits
misconduct even when those actions do not result in a fundamentally unfair trial.’ ”
(People v. Friend (2009) 47 Cal.4th 1, 29.)
       “ ‘[T]he prosecutor has a wide-ranging right to discuss the case in closing
argument. He has the right to fully state his views as to what the evidence shows and to
urge whatever conclusions he deems proper.’ ” (People v. Valencia (2008) 43 Cal.4th
268, 284.) “Although prosecutors have wide latitude to draw inferences from the
evidence presented at trial, mischaracterizing the evidence is misconduct.” (People v.
Hill (1998) 17 Cal.4th 800, 823.) Referring to facts not in evidence is also misconduct.
(Id., at pp. 828-829.) “When a claim of misconduct is based on the prosecutor’s
comments before the jury,” “ ‘ “the question is whether there is a reasonable likelihood
that the jury construed or applied any of the complained-of remarks in an objectionable
fashion.” ’ ” (People v. Friend, supra, 47 Cal.4th at p. 29.) In conducting this inquiry,
we “do not lightly infer” that the jury drew the most damaging rather than the least
damaging meaning from the prosecutor’s statements. (People v. Howard (1992)
1 Cal.4th 1132, 1192.)
       “ ‘To preserve a claim of prosecutorial misconduct for appeal, a criminal
defendant must make a timely objection, make known the basis of his objection, and ask
the trial court to admonish the jury.’ [Citation.] There are two exceptions to this
forfeiture: (1) the objection and/or the request for an admonition would have been futile,
or (2) the admonition would have been insufficient to cure the harm occasioned by the
misconduct . . . . A defendant claiming that one of these exceptions applies must find



                                              4
support for his or her claim in the record. [Citation.] The ritual incantation that an
exception applies is not enough.” (People v. Panah (2005) 35 Cal.4th 395, 462.)
       Defendant contends the prosecutor committed misconduct when in closing
argument she mischaracterized Dr. Roeder’s testimony by claiming Dr. Roeder failed to
corroborate the veracity of any of his statements. According to defendant, by falsely
telling the jury Dr. Roeder failed to corroborate any of his statements, the prosecutor
unfairly undermined his defense by casting doubt on the reliability of Dr. Roeder’s
conclusion that defendant was experiencing delusions on February 13, 2013.
       As an initial matter, because defendant failed to object to the complained-of
remarks or request a curative admonition, his claim of misconduct is forfeited. (People v.
Panah, supra, 35 Cal.4th at p. 463.) Defendant asserts his failure to object should be
excused because “it is unlikely that an admonishment would have cured the error.”
Defendant also suggests an objection would have been futile. However, he failed to cite
anything in the record that would excuse forfeiture. Furthermore, the record does not
disclose grounds for applying an exception to the forfeiture rule. In any event,
defendant’s claim of prosecutorial misconduct is without merit.
       Dr. Roeder testified that there were three components to his psychological
evaluation of defendant: review of historical records (including criminal records), an
interview of defendant, and psychological testing. On cross-examination, Dr. Roeder
admitted he did not review available records to verify defendant’s claim that his prior
offenses were drug-related. During her closing argument, the prosecutor told the jury,
“And what you will note from the defense expert is that when Dr. Roeder went through
the evaluation, he did not bother checking the v[e]racity of any of the defendant’s
statements. He clearly had access to that information. This is one of only three parts that
Dr. Roeder bas[e]s his opinion on and does not bother to check to see whether or not the
statements . . . the defendant makes about his prior history are true or not. He basically
bases his opinion on a multiple choice test that the defendant took.”

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       We conclude the prosecutor’s remarks did not constitute prosecutorial misconduct.
A fair reading of the record reveals the prosecutor’s remarks did not mischaracterize the
evidence. While the prosecutor stated Dr. Roeder had failed to check the veracity of
“any” of the defendant’s statements, this remark was made in the context of a discussion
regarding information about defendant’s “prior history” that Dr. Roeder had “access” to.
A reasonable interpretation of the prosecutor’s remarks is that Dr. Roeder did not verify
defendant’s statement that his prior offenses were drug-related. There is no reasonable
likelihood the jury construed the prosecutor’s remarks in the manner defendant claims.
What the prosecution said was a direct reference to Dr. Roeder’s testimony regarding
defendant’s criminal history. Moreover, the evidence against defendant was substantial
and the complained-of remarks were insignificant to the critical issue in this case --
whether defendant made statements to Seidle with the specific intent they be taken as
threats.2 The primary defense theory was that defendant failed to form the requisite
intent to be convicted of making criminal threats because he was suffering from a
paranoid delusional disorder. Dr. Roeder’s testimony was the only evidence offered by
defendant in his defense. In evaluating defendant and drawing conclusions about his
mental condition, Dr. Roeder testified he placed little weight on his interview with
defendant and the most weight on the psychological testing.3




2     To support a conviction for making a criminal threat, the prosecutor must prove,
among other things, the defendant made the threat with the specific intent that the
statement be taken as a threat, even if there is no intent of actually carrying it out. (See
People v. Toledo (2001) 26 Cal.4th 221, 227-228; People v. Wilson (2010)
186 Cal.App.4th 789, 805.)
3      At the Evidence Code section 402 hearing, Dr. Roeder explained that his opinion
on defendant’s mental condition was “based primarily on data other than what came from
defendant.” He further explained that defendant’s statement regarding his prior offenses
was not verified because it “was not particularly relevant” to his evaluation.

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       Because we find no prosecutorial misconduct, we reject defendant’s unsupported
contention that the trial court abused its discretion by failing to grant a new trial on this
ground.
                                               II
                              Ineffective Assistance Of Counsel
       Defendant contends reversal is warranted for ineffective assistance of counsel
because trial counsel failed to request a limiting instruction regarding his prior criminal
history. We disagree.
       At trial, there was testimony indicating defendant had prior drug-related
convictions and had been to prison and had been on parole. There was also testimony
indicating defendant abused methamphetamine in the past but stopped in 2009.
       A defendant claiming ineffective assistance of counsel must demonstrate both
deficient performance, i.e., representation below an objective standard of reasonableness
and resulting prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-
692 [80 L.Ed.2d 674, 693-694, 695-696]; People v. Ledesma (1987) 43 Cal.3d 171, 217.)
In examining ineffective assistance claims, we accord great deference to counsel’s
reasonable tactical decisions, and there is a strong presumption counsel’s performance
falls within the wide range of reasonable assistance. (People v. Weaver (2001) 26 Cal.4th
876, 925.) “ ‘Tactical errors are generally not deemed reversible, and counsel’s
decisionmaking must be evaluated in the context of the available facts.’ ” (Id. at p. 926.)
“If the record does not shed light on why counsel acted or failed to act in the challenged
manner, we must reject the claim on appeal unless counsel was asked for and failed to
provide a satisfactory explanation, or there simply can be no satisfactory explanation.”
(People v. Scott (1997) 15 Cal.4th 1188, 1212.) Finally, prejudice must be affirmatively
proved; the record must demonstrate “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A



                                               7
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” (Strickland, at p. 694 [80 L.Ed.2d at p. 698]; Ledesma, at pp. 217-218.)
       On the record before us, we cannot conclude trial counsel was ineffective for
failing to request a limiting instruction on defendant’s criminal history. Defendant has
shown neither deficient performance nor prejudice. The record is silent as to why a
limiting instruction was not requested. Under the circumstances, it is possible trial
counsel concluded it was not in defendant’s best interest to highlight his criminal history
by requesting a limiting instruction, especially since this history had been offered in the
testimony of Dr. Roeder, defendant’s own expert witness.
        Given the strength of the evidence against defendant and the insignificance of
defendant’s drug-related criminal history to the critical issue of defendant’s intent
regarding the statements he made to Seidle, “ ‘[a] reasonable attorney may have tactically
concluded that the risk of a limiting instruction . . . outweighed the questionable benefits
such instruction would provide.’ ” (People v. Hernandez (2004) 33 Cal.4th 1040, 1053.)
Accordingly, because the record does not shed light on why counsel failed to request a
limiting instruction and a satisfactory explanation exists for not making such a request,
defendant cannot establish that trial counsel’s omission fell below a standard of
reasonable competence. (See People v. Stewart (2004) 33 Cal.4th 425, 495 [“when the
appellate record does not preclude a satisfactory explanation for counsel’s actions, we
will not find that trial counsel acted deficiently”].)
       Furthermore, we find no prejudice from the failure to request a limiting
instruction. The record persuades us that there was no reasonable probability the jury
would have returned a more favorable verdict had the limiting instruction been given. As
pointed out by defense counsel in his closing argument, there was no evidence defendant
was using drugs at the time he spoke with Seidle on February 13, 2013. Further,
Dr. Roeder testified that while methamphetamine abuse can cause a delusional disorder,
he stated it was more likely than not the paranoid delusional disorder defendant was

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suffering from was not “methamphetamine induced.” Under the circumstances of this
case, we conclude the testimony regarding defendant’s prior drug-related offenses had no
bearing on the criminal threats charge, and it is unreasonable to conclude the jury
improperly utilized such testimony to establish the requisite intent, i.e., defendant made
statements to Seidle with the specific intent they be taken as threats. Accordingly, trial
counsel’s failure to seek a limiting instruction does not constitute ineffective assistance of
counsel.
                                       DISPOSITION
       The judgment is affirmed.



                                                  /s/
                                                  Robie, Acting P. J.



We concur:



/s/
Murray, J.



/s/
Duarte, J.




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