Filed 10/23/14 P. v. Rodriguez CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F066414
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F09906122)
                   v.

JOSEPH RODRIGUEZ,                                                                        OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Fresno County. Denise L.
Whitehead, Judge.
         Sylvia Whatley Beckham, under appointment by the Court of Appeal, for
Defendant and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Jeffrey
Grant, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
         A fight between appellant Joseph Rodriguez (Rodriguez) and his father, Joseph
Rodriguez, Sr., left the older man severely injured. At the time of the incident, Rodriguez
was 44 years old, unemployed, and living in a room at his father’s home in Clovis. The
altercation began after the victim, then age 64, berated his son for drinking alcohol in
violation of the house rules. Rodriguez reacted by beating him with a heavy object.
       Although he claimed self-defense under police questioning, Rodriguez was
charged with premeditated attempted murder and aggravated mayhem. He pled not
guilty and not guilty by reason of insanity. During both the guilt and insanity phases of
his jury trial, Rodriguez attributed his behavior to sleeping disorders which purportedly
rendered him unconscious and incapable of understanding the nature of his conduct. The
jury convicted him of aggravated mayhem and attempted murder without premeditation,
and found that he was not legally insane at the time of the offenses. He was sentenced to
life in prison with the possibility of parole.
       On appeal, Rodriguez presents a claim of ineffective assistance of counsel based
on his trial attorney’s decision not to instruct the jury with CALCRIM No. 3428 (“Mental
Impairment: Defense to Specific Intent or Mental State”). Defense counsel elected to use
standard jury instructions on unconsciousness (CALCRIM No. 3425) and voluntary
intoxication (CALCRIM No. 3426), but declined the trial court’s suggestion that she add
the pinpoint instruction set forth in CALCRIM No. 3428 regarding the negation of
specific intent as a result of mental disease, defect, or disorder. We find no grounds for
reversal on this issue.
       In a separate argument, Rodriguez contends that the trial court erred by failing to
instruct the jury with CALCRIM No. 226 (“Witnesses”) during the insanity phase. This
standard form instruction on witness credibility was used during the guilt phase. The
insanity phase consisted of testimony by three expert witnesses, and the trial court
instructed the jury pursuant to CALCRIM No. 332 (“Expert Witness Testimony”)
without repeating the general principles outlined in CALCRIM No. 226. Again, we find
no prejudicial error.
       Besides challenging his convictions, Rodriguez correctly identifies a
miscalculation of his presentence time credits and errors in the abstract of judgment. His

                                                 2.
sentence will be modified to include an additional 50 days of presentence custody and
conduct credit against his prison term. The abstract of judgment will be corrected to
reflect the sentencing modification and to indicate that Rodriguez was convicted of
attempted murder under Penal Code sections 664 and 187 (the abstract erroneously states
that he was found guilty of premeditated attempted murder under Penal Code section
205). We affirm the judgment as so modified.
                  FACTUAL AND PROCEDURAL BACKGROUND
       On October 26, 2009, at approximately 6:48 p.m., officers from the Clovis Police
Department were dispatched to the victim’s home in response to a 911 call. The call was
placed by Joseph Rodriguez, Sr., who informed the dispatcher that his son, “Joe
Rodriguez,” had been drinking all day and became combative after he was told to leave
the house. Breathing heavily as he spoke, the caller indicated that his son had struck him
with a one-inch by four-inch (1” x 4”) board. He denied needing medical assistance, but
asked that police be sent out to remove his son from the premises. As the call continued,
Rodriguez approached his father and began cursing at him. The caller said, “Don’t pick
that up Joe. Don’t … Oh you son of a bitch. Joe … No. No.” This was followed by the
sound of moaning. Rodriguez told his father to “get up,” and the line went dead.
       Police found the victim lying in a pool of blood on his kitchen floor. He had
sustained extensive injuries to his head and face, and was unable to communicate with
the investigating officers. Paramedics took the victim to the hospital while police spent
the next several hours processing the crime scene. Rodriguez fled prior to their arrival,
but went back to the house around 9:00 p.m. He was arrested upon his return and taken
to the Clovis police station.
       Detectives conducted three interviews with Rodriguez; one on the night of his
arrest and two in the early morning hours of the following day. The first interview began
shortly before 10:00 p.m. and ended at approximately midnight. Rodriguez recounted
multiple versions of the incident during this initial session, but steadfastly maintained that

                                              3.
he had acted in self-defense. He described the victim, i.e., his father, as a fearsome
Marine veteran who weighed at least 275 pounds and had a bad temper. According to
Rodriguez, his father had tried to kill him during a fit of rage.
       Rodriguez explained that he had spent the day lounging in his room and was still
in bed when his father returned home from buying food late in the afternoon. His father
burst into the room, accused Rodriguez of drinking alcohol, and forced him out of bed. A
fight ensued as his father wrestled him to the floor and gouged his eyes. When the
altercation moved to the living room, Rodriguez picked up a ceramic Buddha statue,
threw it at his father’s chest, and ran out of the house. He estimated that the statue, which
broke into pieces upon impact, weighed about 25 pounds.
       Rodriguez described the first part of the incident in detail, recalling things such as
the stench of his father’s body odor and the weight of his frame pressing against him as
they wrestled on the floor. Nevertheless, his story underwent several changes over the
course of the interview. Rodriguez initially said that he was reading a newspaper when
his father attacked him. He later claimed to have been asleep immediately prior to the
altercation. Rodriguez switched back and forth between both versions at least five times,
and once in the same sentence (“I was sitting in my room sleep... I mean was reading the
paper.”). In a third version, he had been sitting on the edge of his bed watching sports
when his dad came in and knocked him to the ground.
       There were also discrepancies concerning the timing of the 911 call and
Rodriguez’s departure from the home. Rodriguez originally claimed that he threw the
Buddha statue at his father before the call was initiated and then heard his father talking
on the phone as he was leaving the residence. He later said that the statue broke during
the 911 call, which further infuriated his father and prompted him to chase Rodriguez
through the house in an effort to prevent his escape. Rodriguez reverted back to the first
sequence of events at other times during the interview, but ultimately settled upon a



                                              4.
version where his father was chasing him, knocking him to the ground, and kicking him,
all while speaking to the 911 dispatcher on a cordless telephone.
       The first interview concluded with a discussion about Rodriguez’s alcohol
consumption. Rodriguez described himself as a recovering alcoholic, explaining that he
had broken his sobriety after purchasing a 750 milliliter bottle of vodka the prior evening.
He allegedly consumed six drinks within five or six hours of the incident. When asked to
estimate his level of drunkenness at the time of the fight, Rodriguez said he was about a 3
or 4 on a scale of 0-10. He felt sober at the time of the interview, which he equated with
a zero on the same scale. A blood sample drawn shortly after midnight on October 27,
2009, in the interim between the first and second interview, showed his blood alcohol
level to be .19 percent.
       During the second and third interviews, detectives advised Rodriguez that his story
did not match up with the evidence found at the scene. After being shown photographs
of the victim’s injuries, he conceded that the statue could have hit his father in the head
rather than in the chest. However, he denied striking the victim with a 1” x 4” and
insisted that he only threw the statue at him one time. Rodriguez further maintained that
he had exited the home through a door to the garage, even after he was told that the door
was bolted shut from the inside when police arrived and no blood had been found in that
part of the house. He claimed his father must have somehow locked the door before
collapsing in the kitchen, despite the fact that he would have been bleeding profusely
from his injuries.
       The Fresno County District Attorney charged Rodriguez by amended information
with one count of attempted willful, deliberate, and premeditated murder (Pen. Code,
§§ 664, subd. (a), 187, subd. (a); Count 1) and one count of aggravated mayhem (Pen.
Code, § 205; Count 2).1 An enhancement allegation was attached to Count 1 for personal
       1   All further statutory references are to the Penal Code unless otherwise indicated.



                                               5.
infliction of great bodily injury (§ 12022.7, subd. (a)). Rodriguez entered a general plea
of not guilty and a special plea of not guilty by reason of insanity. Trial proceedings
were delayed several times for various reasons, including the need for two court-
appointed experts and one retained defense expert to conduct psychiatric evaluations of
the defendant. The matter was tried before a jury in September and October 2012.
Guilt Phase
       The prosecution’s case included an audio recording of the 911 call, video
recordings of Rodriguez’s custodial interviews, photographs of the crime scene, and
pictures of the broken Buddha statue. The jury was also shown a diagram of the layout of
the victim’s home and video footage of the interior. An investigating officer testified that
the recovered pieces of the statue collectively weighed about 13 pounds.
       Corporals Dustin Dodd and Lonnie Amerjan of the Clovis Police Department
testified in relation to their respective crime scene investigations and on the topic of
blood splatter analysis. Both opined that the victim was struck multiple times in the head
with a blunt force object. They also explained how several aspects of Rodriguez’s
version of the events, as told to detectives at the time of his arrest, were inconsistent with
the evidence found at the scene.
       The nature and extent of the victim’s injuries were established through the
testimony of medical professionals. Rodriguez’s father sustained a LeFort III fracture,
which is a serious injury characterized by broken bones throughout the facial region
above the lower jaw. One doctor described it as a separation of the face from the skull, or
craniofacial disassociation. In addition to being left with physical deformities, the victim
lost several teeth and became permanently blind in his right eye. Rodriguez admitted the
allegations of great bodily injury at the close of evidence.
       The defense case consisted of three witnesses. The first witness was Dr. Alan
Barbour, a forensic toxicologist. Dr. Barbour testified that the blood sample drawn from
Rodriguez at the time of his arrest showed a blood alcohol level of .19 percent and the

                                              6.
presence of valium, which likely exacerbated the intoxicating effects of the alcohol. He
explained that most people with a blood alcohol level of .19 percent appear “obviously
intoxicated to the casual observer,” and mixing that much alcohol with valium “would
make it much worse.” A chronic alcoholic might be able to mask the outward signs of
intoxication, but would nevertheless be impaired. Dr. Barbour’s testimony was followed
by that of an officer from the Clovis Police Department who was called to address chain-
of-custody issues with respect to the blood sample.
       The final defense witness was Dr. Avak Howsepian, a board certified psychiatrist
and neurologist. Dr. Howsepian spent approximately 50 hours working on Rodriguez’s
case in preparation for trial. After meeting with Rodriguez and analyzing the evidence
pertaining to the incident with his father, he concluded that the defendant suffered from
parasomnias, i.e., sleeping disorders that cause “a disturbance in behavior, or in a
person’s physiology,” which occurs either in the transition between being awake and
falling asleep or from sleeping to waking up. More specifically, Dr. Howsepian believed
Rodriguez experienced two types of parasomnia on the day in question: confusional
arousal and nocturnal wandering.
       Confusional arousal was described as a phenomenon that can occur during a stage
of non-REM sleep when an individual is startled or forcibly awakened. The person may
get up and interact with others, but is actually still sleeping. In Dr. Howsepian’s words,
the startling event will cause the person “to become animated and often verbal in virtue
of some things kind of prompting them, or stimulating them to be aroused in that way[,]”
but they are confused and typically disoriented. “They don’t have a continuous
integrated perception of their environment because they’re not yet awake, and they act in
ways, often, that can be aggressive….” As with other parasomnias, confusional arousal
is “often associated with aggressive behavior, because an individual misinterprets their
environment because they’re cloudy in their judgment and their perceptions in ways that
don’t allow them to respond in a usual way to whatever it is they’re confronting.”

                                             7.
Rodriguez’s consumption of alcohol and valium further influenced Dr. Howsepian’s
opinion, since both substances “are well-known predisposing factors for confusional
arousals.”
       The expert described nocturnal wandering as something similar to sleepwalking,
but differentiated by certain behavioral characteristics. Whereas sleepwalkers typically
move slowly and appear to be in a state of slumber, a nocturnal wanderer has their eyes
open, moves quickly, is much more verbal, and can become very aggressive.
Dr. Howsepian explained that people who experience nocturnal wandering are also in a
non-REM stage of sleep, despite “looking like they’re wide awake, and looking like
they’re performing acts that are deliberate and intentional. In fact, they’re part of their
sleep pathology, acting in ways that are not in their voluntary control at these times.”
       Given his belief that Rodriguez experienced confusional arousal and nocturnal
wandering at the time of the incident, it was Dr. Howsepian’s opinion that he “would not
[have been] voluntarily acting in ways that he would ordinarily act.” Defense counsel
tried to elicit an opinion regarding whether or not Rodriguez was “legally unconscious”
at the time, but each attempt was met with objections that were sustained on the grounds
of calling for a legal conclusion. Counsel was permitted to ask if people who experience
parasomniac episodes are able to make “deliberate principle[d] moral decisions” in those
states, to which Dr. Howsepian replied, “No.”
       The jury deliberated for two days, during which time they asked to review the 911
call, Rodriguez’s interviews with police, and video footage of the crime scene. On the
second day of deliberations the jury advised the court that it was having “difficulty
reaching a unanimous agreement on the greater crime.” After receiving further
instructions, the jury convicted Rodriguez of attempted murder under Count 1, but found
the crime was committed without premeditation or deliberation. Rodriguez was found
guilty of aggravated mayhem as charged in Count 2.



                                              8.
Insanity Phase
       Proceeding with the burden of proof on the issue of insanity, the defense again
called Dr. Howsepian to testify in regards to Rodriguez’s mental state at the time of the
offenses. The expert reiterated his conclusion that Rodriguez had experienced
confusional arousal and nocturnal or “episodic” wandering.2 He also extrapolated upon
the idea that there had been “intrusions of wakefulness” into the defendant’s sleep – a
notion he had touched upon in his earlier testimony. Dr. Howsepian believed that
Rodriguez essentially had a moment of clarity when he threw the statue at his father, and
thus appreciated the nature of that particular decision. However, with respect to the
conduct that formed the basis for the crimes of attempted murder and aggravated
mayhem, Dr. Howsepian was of the opinion that Rodriguez did not understand the nature
and quality of his behavior and/or was incapable of understanding the wrongfulness of
his actions.
       The prosecution offered testimony from two court-appointed psychiatrists.
Drs. Luiz Velosa and Howard Terrell each opined that Rodriguez was sane when he
committed the crimes, i.e., that he was capable of distinguishing between right and
wrong, and understood the nature and quality of his actions. Dr. Terrell specifically ruled
out the possibility that Rodriguez’s behavior was attributable to some form of
parasomnia.
       The jury found Rodriguez was not legally insane at the time of the offenses.
Sentencing
       Rodriguez was sentenced to life in prison with the possibility of parole based on
the conviction of aggravated mayhem as alleged in Count 2. The trial court imposed the


       2Dr. Howsepian used the terms “nocturnal wandering” and “episodic wandering”
interchangeably during the guilt phase. Only the latter term was used during the insanity
phase.



                                            9.
upper term of nine years for the attempted murder conviction, plus an additional three
years for the admitted great bodily injury enhancement, and stayed the entire sentence on
Count 1 pursuant to section 654. Rodriguez received 1,271 days of presentence custody
and conduct credit against his sentence (see discussion, infra).
                                       DISCUSSION
Ineffective Assistance of Counsel
Background
       An unreported conference regarding jury instructions was held between the parties
and the trial court prior to closing arguments in the guilt phase of the trial. When the
conference was over, the trial court identified for the record the agreed-upon instructions.
It was noted that the parties intended to use modified versions of CALCRIM Nos. 3425
and 3426 regarding unconsciousness and voluntary intoxication, respectively. The court
went on to state: “And [CALCRIM No.] 3428 was suggested by the court. You’re not
requesting that, [defense counsel], because that’s not consistent with your defense,
correct?” Rodriguez’s trial attorney replied, “That is correct.” The record on appeal
provides no further insight into why defense counsel chose not to use this particular
instruction.
       CALCRIM No. 3428 states, in pertinent part: “You have heard evidence that the
defendant may have suffered from a mental (disease[,]/ [or] defect[,]/ [or] disorder). You
may consider this evidence 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. [¶] 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,
specifically: <insert specific intent or mental state required, […] >. If the People have
not met this burden, you must find the defendant not guilty of <insert name of alleged
offense>.”



                                             10.
       CALCRIM No. 3428 is an optional pinpoint instruction designed to convey the
information set forth in section 28, subdivision (a). (People v. Ervin (2000) 22 Cal.4th
48, 91 [referring to CALJIC No. 3.32].) Section 28 provides that 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,’ a theory sometimes referred to as ‘diminished
actuality.’ [Citation]. Section 28(a) bars evidence of the defendant’s capacity to form a
required mental state, consistent with the abolition of the diminished capacity defense.’”
(People v. Elmore (2014) 59 Cal.4th 121, 139 (Elmore), original italics, fn. omitted.)
       Defense counsel focused on the theory of unconsciousness during closing
argument, emphasizing that a finding of unconsciousness would constitute a complete
defense to all charges. Counsel alternatively urged the jury to consider the partial
defense of voluntary intoxication in the event that it did not accept the opinions of
Dr. Howsepian. Other portions of the closing argument challenged the logic behind the
allegations of premeditation and deliberation, and addressed alternative defense theories
such as heat of passion.
       The jury was instructed on unconsciousness with the following modified version
of CALCRIM No. 3425: “The defendant is not guilty of the charges if he acted while
legally unconscious. Someone is legally unconscious when he or she is not conscious of
his or her actions. Someone may be unconscious, even though able to move. [¶]
Unconsciousness may be caused by an altered sleep-like state. [¶] The People must
prove beyond a reasonable doubt that the defendant was conscious when he acted. If
there is proof beyond a reasonable doubt that the defendant acted as if he were conscious,
you should conclude that he was conscious. If, however, based on all the evidence you
have a reasonable doubt that he was conscious, you must find him not guilty.”
       The jury was also given instructions on voluntary intoxication as a partial defense
to negate the element of specific intent, as well as instructions concerning perfect self-

                                             11.
defense, imperfect self-defense, heat of passion, and the lesser included offenses of
attempted voluntary manslaughter, simple mayhem, and battery with serious bodily
injury.
          Rodriguez claims he received constitutionally deficient representation as a result
of his trial attorney’s failure to argue a theory of diminished actuality during trial and to
utilize the corresponding pattern instruction for such a defense, CALCRIM No. 3428.
Analysis
          “‘A criminal defendant is guaranteed the right to the assistance of counsel by both
the state and federal Constitutions. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.)
“Construed in light of its purpose, the right entitles the defendant not to some bare
assistance but rather to effective assistance.”’” (People v. Lucas (1995) 12 Cal.4th 415,
436 (Lucas), original italics.) An appellant must establish two things in order to prevail
on an ineffective assistance of counsel claim: (1) the performance of his or her attorney
fell below an objective standard of reasonableness, and (2) prejudice occurred as a result.
(Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Anderson (2001) 25
Cal.4th 543, 569.)
          The standard for evaluating the first prong of appellant’s claim is extraordinarily
deferential. “A reviewing court will indulge in a presumption that counsel’s performance
fell within the wide range of professional competence and that counsel’s actions and
inactions can be explained as a matter of sound trial strategy.” (People v. Gamache
(2010) 48 Cal.4th 347, 391.) On direct appeal, we “‘will reverse convictions on the
ground of inadequate counsel only if the record on appeal affirmatively discloses that
counsel had no rational tactical purpose for his act or omission.’” (People v. Zapien
(1993) 4 Cal.4th 929, 980.) This is a difficult burden to satisfy. (Lucas, supra,
12 Cal.4th at p. 437.)
          Rodriguez’s argument on this issue is two-fold. First, he claims it was
unreasonable for his trial attorney to rely so heavily upon a theory of unconsciousness

                                               12.
because Dr. Howsepian himself supposedly opined that he was “partially conscious” or
“semi-conscious” during the incident, thus making diminished actuality “the most viable
defense supported by Dr. Howsepian’s testimony.” As we will explain, this is a self-
serving and myopic interpretation of what the expert actually said on the witness stand.
Second, Rodriguez speculates that the decision not to argue or instruct the jury on the
concept of diminished actuality was driven by a misunderstanding of the law insofar as
his attorney failed to realize that diminished actuality is essentially a “‘lesser included
defense’ of total unconsciousness” and mistakenly believed the defenses were mutually
exclusive of one another.3
       Dr. Howsepian did not postulate that Rodriguez was “partially conscious” or
“semi-conscious” when he committed his crimes, at least not in a legal sense. He instead
tried in vain to explain his understanding of the difference between being “legally
unconscious” and what consciousness means to lay people and the scientific community.
The expert alluded to this distinction at the beginning of his testimony with an example
of how people are sometimes cognizant of what is happening in their dreams: “There are
kinds of dreams that some people have experienced, called lucid dreams, in which they’re
fully conscious in their dream. They might think to themselves, ‘Oh, wow, I’m
dreaming. I can now do anything. I can fly,’ et cetera. So a person can become quite
conscious, even while asleep, but they don’t have that consciousness. It’s not a
consciousness of their environment, so that’s why they don’t say they’re awake during
that time, even though they’re fully self-conscious while sleeping.”
       Although Dr. Howsepian believed Rodriguez had some level of understanding in
terms of what was happening the time of the 911 call, his testimony must be viewed in
context. The transcript excerpt upon which appellant relies reads as follows:

       3  We express no opinion on the merits of appellant’s legal propositions concerning
the relationship between diminished actuality and unconsciousness.



                                             13.
      “[Defense Counsel]: How do we reconcile that someone may have been
                          unconscious, and you heard the 911 tape, and have heard
                          what we heard, and what you’re talking about as a
                          parasomnia, how do we reconcile what we heard and what
                          you’re talking about?
      “[Dr. Howsepian]: It’s critically important, I think, that the word ‘unconscious’
                          be understood in these [sic] context, in a legal sense, the
                          technical legal sense.
      “[Prosecutor]:      Your Honor, I’m going to object.
      “[Trial Court]:     Sustained. He can talk about his field, which is psychiatry,
                          but not reach the legal conclusion.
      “[Defense Counsel]: In your opinion, was Mr. Rodriguez, Jr. conscious of his
                          actions at the time of the incident recorded somewhat on the
                          911 tape?
      “[Dr. Howsepian]: The answer is he has clearly some recollection of what went
                          on during the time, yes.
      “[Defense Counsel]: So in your opinion, he was conscious or -
      “[Prosecutor]:      Objection, asked and answered.
      “[Trial Court]:     Overruled. You may answer.
      “[Dr. Howsepian]: Again, when you ask me this question, this is in the usual
                          sense of consciousness, in the psychiatric sense, not the legal
                          sense, right?
      “[Defense Counsel]: Well -
      “[Dr. Howsepian]: This is very important, because -
      “[Trial Court]:     Please wait for a question.”
      Defense counsel did not pose another direct question about consciousness, but
asked, “How do we reconcile someone suffering from parasomnia and the activities that

                                          14.
we heard on the 911 tape?” This was followed by the final question and answer
regarding a person’s inability to make “deliberate principle[d] moral decisions” while
they are experiencing a parasomnia.
       The attribution of wrongful behavior to sleeping disorders and/or being in a state
of sleep has traditionally been classified as an unconsciousness defense. (See People v.
Mathson (2012) 210 Cal.App.4th 1297, 1315-1316.) “An unconscious act within the
contemplation of the Penal Code is one committed by a person who because of
somnambulism, a blow on the head, or similar cause is not conscious of acting and whose
act therefore cannot be deemed volitional.” (People v. Sedeno (1974) 10 Cal.3d 703,
717, overruled on another ground in People v. Breverman (1998) 19 Cal.4th 142, 165.)
Unconsciousness is a complete defense to a criminal charge. (§ 26.) As previously
discussed, the upshot of Dr. Howsepian’s testimony was that Rodriguez was asleep when
he committed the crimes, and that his actions were involuntary. Therefore, trial counsel’s
decision to rely on unconsciousness as the primary defense theory cannot be
characterized as professional incompetence.
       As for refusing the trial court’s offer to instruct the jury with CALCRIM No.
3428, Rodriguez ignores the distinct possibility, if not probability, that his attorney
eschewed the partial defense of diminished actuality in favor of an all-or-nothing strategy
in relation to Dr. Howsepian’s opinions and conclusions. Counsel could have reasoned
that introducing the concept of diminished actuality carried the danger of confusing the
jury, detracting from or undercutting the theory of unconsciousness, and/or inviting a
compromise verdict. It is conceivable that to avoid such potential consequences, counsel
employed the all-or-nothing strategy to help ensure that if the jury was in any way
inclined to believe Dr. Howsepian’s parasomnia explanations, it would completely
exonerate Rodriguez. The closing arguments support this conclusion, since counsel told
the jury not to consider any alternative defenses unless it had already rejected Dr.
Howsepian’s testimony.

                                             15.
       “Failure to argue an alternative theory is not objectively unreasonable as a matter
of law.” (People v. Thomas (1992) 2 Cal.4th 489, 531.) It is appellant’s burden to
affirmatively show his attorney’s allegedly deficient performance “cannot be explained
on the basis of any knowledgeable choice of tactics.” (People v. Montoya (2007)
149 Cal.App.4th 1139, 1147.) The all-or-nothing strategy described above is a known
tactic that is sometimes used by criminal defense lawyers for a variety of different
reasons depending on the circumstances of their case. (See, e.g., People v. Rodrigues
(1994) 8 Cal.4th 1060, 1140 & fn. 44; People v. Bunyard (1988) 45 Cal.3d 1189, 1235;
People v. Lara (1994) 30 Cal.App.4th 658, 674; People v. Farrow (1993) 13 Cal.App.4th
1606, 1618, fn. 14, ¶ 4.) Indulging as we must the strong presumption that Rodriguez’s
trial attorney had a rational tactical purpose for choosing to forgo arguing a theory of
diminished actuality, we reject his ineffective assistance of counsel claim.
Failure to Reinstruct with CALCRIM No. 226 at the Insanity Phase
       During the penalty phase the trial court instructed the jury with CALCRIM No.
226 (“Witnesses”)4 and CALCRIM No. 332 (“Expert Witness Testimony”).5 At the

       4  The CALCRIM No. 226 instruction stated: “You alone must judge the credibility
or believability of the witnesses. In deciding whether testimony is true and accurate, use
your common sense and experience. You must judge the testimony of each witness by
the same standards, setting aside any bias or prejudice you may have. You may believe
all, part, or none of any witness’s testimony. Consider the testimony of each witness and
decide how much of it you believe. [¶] In evaluating a witness’s testimony, you may
consider anything that reasonably tends to prove or disprove the truth or accuracy of that
testimony. Among the factors that you may consider are: How well could the witness
see, hear, or otherwise perceive the things about which the witness testified? How well
was the witness able to remember and describe what happened? What was the witness’s
behavior while testifying? Did the witness understand the questions and answer them
directly? Was the witness’s testimony influenced by a factor such as bias or prejudice, a
personal relationship with someone involved in the case, or a personal interest in how the
case is decided? What was the witness’s attitude about the case or about testifying? Did
the witness make a statement in the past that is consistent or inconsistent with his or her
testimony? How reasonable is the testimony when you consider all the other evidence in
the case? Did other evidence prove or disprove any fact about which the witness


                                            16.
insanity phase, the jury was again instructed with CALCRIM No. 332, but not with
CALCRIM No. 226, presumably because the only testimony at this stage of the
proceedings came from expert witnesses. The trial court solicited the parties’ input on its
decision to pare down the list of instructions previously used at the guilt phase, but
neither the prosecution nor defense counsel objected to the omission of CALCRIM No.
226. On appeal, however, Rodriguez contends that the trial court’s failure to reinstruct
the jurors on general principles of witness credibility and believability constituted
reversible error.




testified? Did the witness admit to being untruthful? [¶] Do not automatically reject
testimony just because of inconsistencies or conflicts. Consider whether the differences
are important or not. People sometimes honestly forget things or make mistakes about
what they remember. Also, two people may witness the same event yet see or hear it
differently. [¶] If you do not believe a witness’s testimony that he or she no longer
remembers something, that testimony is inconsistent with the witness’s earlier statement
on that subject. [¶] If you decide that a witness deliberately lied about something
significant in this case, you should consider not believing anything that witness says. Or,
if you think the witness lied about some things, but told the truth about others, you may
simply accept the part that you think is true and ignore the rest.”
       5 The CALCRIM No. 332 instruction stated: “Witnesses were allowed to testify as
an expert and to give an opinion. You must consider the opinions, but you are not
required to accept them as true or correct. The meaning and importance of any opinions
are for you to decide. In evaluating the believability of an expert witness, follow the
instructions about the believability of witnesses generally. In addition, consider the
experts’ knowledge, skill, experience, training, and education, the reasons the experts
gave for any opinions, and the facts or information on which the experts relied in
reaching that opinion. You must decide whether information on which the experts relied
was true and accurate. You may disregard any opinion that you find unbelievable,
unreasonable, or unsupported by the evidence. [¶] An expert witness may be asked a
hypothetical question. A hypothetical question asks the witness to assume certain facts
are true and to give an opinion based on the assumed facts. It is up to you to decide
whether an assumed fact has been proved. If you conclude that an assumed fact is not
true, consider the effect of the expert’s reliance on that fact in evaluating the experts’
opinion.”



                                             17.
       The California Supreme Court has addressed this issue in capital cases where
instructions were provided during the guilt phase but not repeated during the penalty
phase. “In general, the trial court need not repeat or highlight ‘generic’ guilt phase
instructions on witness credibility at the penalty phase as long as the jury can properly
infer that these instructions continue to apply.” (People v. Contreras (2013) 58 Cal.4th
123, 167 (Contreras).) “Such is the case where the instructions are not limited by their
terms to the guilt phase or contradicted by other advisements at the penalty phase.”
(Ibid.) We see no reason why this rule should not be applied here, since the guilt phase
and the insanity phase were two components of the same trial. (Elmore, supra,
59 Cal.4th at p. 141 [“‘The separation of the two stages of the bifurcated trial is solely for
the purpose of keeping the issues of guilt and sanity distinct; for other purposes, the trial
is regarded as single and continuing.’”], quoting 5 Witkin & Epstein, Cal. Criminal Law
(4th ed. 2012) Criminal Trial, § 795, p. 1227.)
       In any event, the parties agree that if the trial court erred by failing to reinstruct the
jurors with CALCRIM No. 226, the error should be evaluated for prejudice under the
traditional Watson6 standard. (See People v. Carter (2003) 30 Cal.4th 1166, 1219-1221
[failure to reinstruct on general principles at the penalty phase is not structural error];
People v. Larsen (2012) 205 Cal.App.4th 810, 830 [in the absence of federal
constitutional error, improper omission of jury instructions is reviewed under the Watson
standard].) Rodriguez’s prejudice analysis focuses on a sentence in CALCRIM No. 226
which informs jurors that in evaluating a witness’s testimony, they may consider
“anything that reasonably tends to prove or disprove the truth or accuracy of that
testimony.” He argues that due to the trial court’s failure to convey this message for a
second time at the insanity phase, the jury likely believed it did not have “full latitude” to
consider the accuracy of the experts’ respective opinions based on anything and
       6   People v. Watson (1956) 46 Cal.2d 818, 836.



                                              18.
everything that could tend to prove or disprove their conclusions, including the relatively
short amount of time the court-appointed experts spent working on the case (approx. 1-2
hours) in comparison to Dr. Howsepian (approx. 50 hours). We are not persuaded by this
argument, nor do we perceive any likelihood that the jury would have adopted
Dr. Howsepian’s opinions on the issue of insanity but-for the omission of CALCRIM
No. 226.
       CALCRIM No. 332, which the jury did receive a second time, expressly states:
“In evaluating the believability of an expert witness, follow the instructions about the
believability of witnesses generally.” Although the jury no longer had its written
instructions from the guilt phase, CALCRIM No. 226 was not, by its terms, limited to the
guilt phase, nor were its guidelines contradicted by any of the insanity phase instructions.
Therefore, we may presume the jury correctly understood that the general principles for
evaluating the testimony of ordinary witnesses also applied to their evaluation of
testimony provided by Dr. Velosa and Dr. Terrell. (Cf. People v. Danielson (1992) 3
Cal.4th 691, 723, overruled on other grounds in Price v. Superior Court (2001) 25
Cal.4th 1046, 1069, fn. 13; People v. Wharton (1991) 53 Cal.3d 522, 600; People v.
Brown (1988) 46 Cal.3d 432, 460.)
       Furthermore, making credibility determinations is “a task lay jurors would be
expected to understand and perform in their daily lives.” (Contreras, supra, 58 Cal.4th at
p. 169.) Rodriguez attempts to distinguish credibility determinations from the process of
assessing the believability of a witness’s testimony, but his arguments fall well short of
establishing prejudice. Assuming arguendo that the trial court erred by failing to
reinstruct the jury with CALCRIM No. 226, we conclude it is not reasonably probable
that Rodriguez would have received a more favorable verdict absent the alleged error.
Miscalculation of Presentence Custody and Conduct Credits
       Respondent and appellant both correctly submit that the trial court miscalculated
the presentence custody and conduct credits to which Rodriguez was entitled under

                                            19.
sections 2900.5 and 4019. However, the parties disagree as to whether Rodriguez should
have received an additional 50 or 51 days of credit. To resolve this dispute, we must
determine how long Rodriguez was in “custody” within the meaning of section 2900.5,
subdivision (a). For the reasons hereafter stated, we agree with respondent that the first
day of actual custody was October 27, 2009, and that Rodriguez is entitled to an
additional 50 days of credit against his prison sentence.
Background
       Rodriguez was arrested in front of his father’s home on October 26, 2009 at
approximately 9:09 p.m. From there he was taken to the Clovis police station and placed
in a holding cell or a similar type of “detention facility,” which is the term that was used
by Detective Ryan Swank during his trial testimony. Detective Swank retrieved
Rodriguez from the detention facility at approximately 9:58 p.m. and brought him to an
interview room that was also located inside of the police station. The first interview
ended at around midnight when Detective Swank left the station to view the crime scene.
He returned sometime after 1:00 a.m. on October 27, 2009 and proceeded to conduct his
second interview with Rodriguez. The record implies that Rodriguez was booked into the
Fresno County Jail later that day, and remained in custody at the jail until the time of
sentencing.
       Sentencing was originally scheduled for November 5, 2012, but did not take place
until December 18, 2012. The probation report, which the trial court evidently relied
upon in calculating Rodriguez’s time credits, was not updated to reflect the additional
days he spent in jail between the originally scheduled hearing date and the actual day of
sentencing. Consequently, the trial court only gave him credit for time spent in custody
between October 27, 2009 and November 5, 2012. This was determined to be 1,271 days
(1,106 days of actual custody, plus 165 of conduct credit pursuant to sections 2933.1 and
4019). Rodriguez argues that his custody and conduct credits should have been
calculated from October 26, 2009 through December 18, 2012.

                                             20.
Analysis
       A criminal defendant is entitled to credit against his or her sentence for all days
spent in custody while awaiting trial and sentencing, up to and including the date when
their sentence is imposed. (§ 2900.5, subd. (a); People v. Rajanayagam (2012)
211 Cal.App.4th 42, 48.) A partial day spent in jail qualifies as a whole day of custody
for purposes of calculating actual custody credits. (People v. King (1992) 3 Cal.App.4th
882, 886.) Section 4019 provides for additional presentence credits based on work time
and good behavior, collectively referred to as “conduct credit,” and specifies the rate at
which such credit can be earned. (§ 4019, subds. (a), (b) & (c); People v. Dieck (2009)
46 Cal.4th 934, 939, fn. 3.) Section 2933.1 limits the availability of conduct credit to 15
percent of the actual period of confinement if the defendant has been convicted of a
violent felony, including mayhem and attempted murder. (§§ 2933.1, subds. (a) & (c));
667.5 subds. (c)(2) & (12).)
       Pursuant to section 2900.5, credit for time served begins to accrue on the first day
of custody, which in many cases will be the same day as the defendant’s arrest. The
statute, however, does not refer to the date of arrest but rather to the time “when the
defendant has been in custody, including, but not limited to, any time spent in a jail,
camp, work furlough facility, halfway house, rehabilitation facility, hospital, prison,
juvenile detention facility, or similar residential institution.” (§ 2900.5, subd. (a), italics
added.) Being arrested is generally synonymous with being taken into custody (§ 834),
but case law holds that section 2900.5 distinguishes between “residential custody
arrangements” and basic custodial detention. (People v. Ravaux (2006) 142 Cal.App.4th
914, 919 (Ravaux).)
       Rodriguez contends that he should have received custody credit for the time
during which he was detained at the Clovis police station on the night of October 26,
2009. The same type of argument was considered and rejected in Ravaux, supra, a case
that involved a defendant who was arrested by police at approximately 9:30 p.m. but was

                                              21.
not booked into the county jail until 12:28 a.m. the next day. (Ravaux, supra, 142
Cal.App.4th at p. 917.) Applying standard rules of statutory construction, the Fourth
District held that a defendant is not in custody within the meaning of section 2900.5 until
he or she is processed into a jail or, as the statute indicates, a “similar residential
institution.” (Id. at pp. 919-921.) “The plain language of section 2900.5 addresses only
residential custody arrangements and makes no mention of detention, seizure or arrest by
the police as being the type of custody included in the calculation of custody credits.”
(Id. at p. 919.)
        Rodriguez does not challenge the correctness of the Ravaux holding in his reply,
but argues the “detention facility” at the Clovis police station fits within the type of
custodial arrangements contemplated by section 2900.5. The record is lacking in
evidence on this point, and we are not convinced that the holding area where he was
detained for less than an hour before being taken to the interview room qualifies as the
type of “residential” custodial setting described in the statute. It is appellant’s burden to
show that error occurred in the proceedings below, and he has not met his burden vis-à-
vis the trial court’s determination that the first day of actual custody was October 27,
2009.
        The trial court did err by failing to include the time between November 5, 2012
and December 18, 2012 when it calculated Rodriguez’s presentence custody and conduct
credits. We will recalculate his credits under the applicable statutory authorities. (See
People v. Smith (2001) 24 Cal.4th 849, 852-854 [unauthorized sentence may be corrected
in the first instance on appeal].) Taking into account the extra day in 2012 for leap year,
there were 1,149 days of actual custody between October 27, 2009 and December 18,
2012. With the 15% restriction imposed by section 2933.1, Rodriguez was entitled to
receive 172 days of conduct credit. Accordingly, we modify the judgment to reflect
1,321 days of combined presentence custody and conduct credit against Rodriguez’s
sentence of life in prison with the possibility of parole.

                                               22.
Errors in the Abstract of Judgment
       The abstract of judgment forms that were prepared in this case contain multiple
errors. The form pertaining to Count 1 incorrectly states that Rodriguez was convicted of
“attempted willful deliberate premeditated murder” pursuant to section 205. The abstract
should instead reflect that he was convicted of attempted murder pursuant to sections 664
and 187, and should not contain any reference to willfulness, deliberation, or
premeditation. The form pertaining to Count 2 does not recognize any presentence
custody or conduct credits against the indeterminate sentence of life in prison with the
possibility of parole. We order the preparation of an amended abstract to correct these
mistakes. The amended abstract should include the modification to Rodriguez’s
presentence custody and conduct credits.
                                      DISPOSITION
       Appellant’s sentence is modified to reflect an additional 50 days of presentence
custody and conduct credit, for a total of 1,321 days of credit against Rodriguez’s
sentence of life in prison with the possibility of parole in relation to the aggravated
mayhem conviction under Count 2. The trial court is directed to prepare an amended
abstract of judgment reflecting this modification. The amended abstract should further
indicate that appellant was convicted of attempted murder under Count 1 pursuant to
sections 664 and 187, and should not contain any reference to willfulness, deliberation, or




                                             23.
premeditation. A copy of the amended abstract shall be forwarded to the Department of
Corrections and Rehabilitation. As modified, the judgment is affirmed.



                                                             _____________________
                                                                           Gomes, J.
WE CONCUR:


 _____________________
Levy, Acting P.J.


 _____________________
Cornell, J.




                                          24.
