Filed 12/6/13 P. v. Howard CA2/8
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT



THE PEOPLE,                                                          B241359

                         Plaintiff and Respondent,                   (Los Angeles County
                                                                      Super. Ct. No. BA368248)
                   v.

FRANK HOWARD,

                         Defendant and Appellant.



         APPEAL from the judgment of the Superior Court of Los Angeles County.
Frederick N. Wapner, Judge. Affirmed.

         Jeralyn Keller, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, and Susan Sullivan Pithey,
Deputy Attorney General, for Plaintiff and Respondent.


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       A jury found defendant and appellant Frank Howard guilty of second degree
murder. On appeal, defendant argues his trial counsel was ineffective in failing to request
CALCRIM No. 3428, and in failing to object to improper statements by the prosecutor
during closing argument. We affirm.
                 FACTUAL AND PROCEDURAL BACKGROUND
       In early 2010, defendant became acquainted with Sharon Brown. The two went
out together a couple of times. On the evening of February 21, 2010, Ms. Brown called
defendant and invited him over to the apartment of her mother, Billie Hall. Defendant
drove over on his motorcycle. He and Ms. Brown then went out to pick up some food
and alcohol. They returned to Ms. Hall’s apartment, and the three of them sat in the
living room talking, listening to music, drinking and smoking marijuana.
       After a couple of hours, defendant and Ms. Brown retired to one of the bedrooms.
After a period of time, the door to the bedroom suddenly opened and the covers were
“snatched off” of them. Defendant leaped up and saw two men he did not know, both
bigger than he was, standing in the room. They began yelling at him and punching him.
A short fight ensued, with defendant eventually ending up on the ground in the corner of
the room, bleeding from the forehead. Ms. Hall came into the room because of the
commotion and tried to stop the fight. The two men then abruptly left the bedroom.
       The men were Ms. Hall’s boyfriend, Eddie Carroll, and his cousin, Craig
Crenshaw. Mr. Carroll did not live with Ms. Hall, but usually stayed over at her
apartment on weekends. Mr. Crenshaw sometimes went out with Ms. Brown. The
two men had dropped by that Saturday evening much later than usual. On their way out
of the apartment, Mr. Carroll, who still appeared angry, told Ms. Hall that he would talk
to her later. She watched them get into Mr. Crenshaw’s car and drive away.
       Meanwhile, Ms. Brown and defendant got dressed. Ms. Brown went into the
living room, where her mother had returned from outside. After going into the bathroom
to look at the wound on his head, defendant joined the two women in the living room, sat
down on one of the couches next to Ms. Brown and started putting on his boots.
Ms. Brown told defendant he should leave, but he did not go.


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       After several minutes, Mr. Carroll returned. Defendant and Mr. Carroll briefly
exchanged words. The encounter ended with defendant shooting Mr. Carroll twice in the
upper back, and then once again in the head on his way out of the apartment. Running
down the apartment stairs, defendant saw two men, Willie Herbert and Jason Conant, and
pointed his gun at them as he passed by. Defendant then left on his motorcycle.
       Sometime later the next day, defendant voluntarily turned himself in to the police.
During an interview with the investigating detective, defendant admitted he had been in
Ms. Hall’s apartment, that he had been attacked by two unknown men, that they left
saying something about getting a gun, and then one of them returned and defendant shot
him. Defendant said he shot Mr. Carroll after he re-entered the apartment and pushed
Ms. Hall to the ground. Defendant explained that when he tried to step over Mr. Carroll
to leave the apartment, Mr. Carroll grabbed his pant leg and defendant “squeezed off
another one” and then left.
       Defendant was charged by amended information with one count of murder for the
death of Mr. Carroll (Pen. Code, § 187, subd. (a); count 1),1 and two counts of assault
with a firearm for his encounters with Mr. Herbert and Mr. Conant in the stairwell (§ 245,
subd. (a)(2); counts 2 & 3). It was also specially alleged as to count 1 that defendant
personally used and discharged a firearm in the commission of the offense, and caused
great bodily injury and death. (§ 12022.53, subds. (b), (c) & (d).) It was specially
alleged as to counts 2 and 3 that defendant personally used a handgun in the commission
of the assaults. (§ 12022.5, subd. (a).) Defendant pled not guilty and denied the special
allegations.
       The case proceeded to a jury trial in April 2012. Ms. Brown, Ms. Hall,
Mr. Crenshaw and Mr. Conant2 testified to the events that occurred on the evening of
February 21, 2010, at the Hall apartment. The witnesses largely testified consistently as
to the material facts regarding the events that led up to the shooting. Most of the disputed

1      All further undesignated section references are to the Penal Code.
2      Mr. Herbert had passed away before trial.


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evidence concerned the specifics of the shooting itself. Ms. Brown said she ran out of the
apartment after the first shot was fired and could not attest in great detail to what
occurred.
       Ms. Hall testified that when Mr. Carroll came back, he and defendant exchanged
words and defendant said something like “so you guys want to jump somebody.” She
said Mr. Carroll was turning to leave when defendant shot him and Mr. Carroll
immediately dropped to the ground. Ms. Hall said when defendant stepped over
Mr. Carroll’s body on his way out of the apartment, he pointed the gun down and shot
him one more time.
       Mr. Conant testified to hearing a lot of yelling and commotion in the apartment,
shots being fired, and then defendant passed him and Mr. Herbert in the stairwell,
pointing a gun at them as he left the building.
       The prosecution also presented Dr. Lisa Scheinin, the deputy medical examiner
who performed the autopsy on Mr. Carroll. She attested that Mr. Carroll died from
multiple gunshots wounds, two in the upper back and one in the right temple area.
Dr. Scheinin expressed her opinion the two gunshot wounds to the back occurred first
(one was almost near the left armpit area), and that the head wound in the temple was
suffered last. Dr. Scheinin explained the wound track for the head wound showed
minimal blood, most reasonably explained by the fact Mr. Carroll had already suffered
extensive blood loss from one of the wounds to the back that had damaged numerous
organs, including the heart. Dr. Scheinin also stated her opinion that the gunshot to the
head occurred at very close range because of soot around the entrance wound.
       Defendant testified on his own behalf and also presented the testimony of
Dr. Nancy Kaser-Boyd, a clinical forensic psychologist. Defendant attested to being
attacked in the bedroom and hearing one of the men say “I’m gonna get a gun” as they
left the bedroom. He said both of the men, whom he did not know, were bigger than he
was and he was therefore not very “effective” in fighting them off.
       Defendant explained he had been attacked and robbed by three men some 20 years
earlier. He had suffered serious wounds, including head wounds, and was hospitalized


                                              4
for a long period of time. Defendant said he did not trust people easily, but that he had
basically “got[ten] over it, you know. Life goes on, you know. I learned to live with it.”
       Defendant said he did not immediately leave the apartment as he felt “dazed [and]
confused.” He explained that Mr. Carroll then returned a few minutes later, still “tanked”
up. Mr. Carroll pushed Ms. Hall to the ground and defendant believed he saw him
reaching for a gun in his waistband, so he shot him. As he attempted to leave the
apartment, defendant stepped over Mr. Carroll. Just as he did so, defendant said
Mr. Carroll grabbed his pant leg and the gun went off again. He then ran down the stairs,
past two men, telling them he just wanted to leave. Defendant got on his motorcycle and
drove off, but ditched his motorcycle shortly thereafter because both tires had been
slashed. He also got rid of the gun. On cross-examination, defendant was asked about
various inconsistencies in his statements to the police and his statements in court.
       Dr. Kaser-Boyd testified she administered various tests to defendant
approximately a year after the incident. In her opinion, the test results indicated
defendant suffers from posttraumatic stress disorder (PTSD). She explained that PTSD
causes individuals to be hypervigilant to threats and unusually defensive.
       According to Dr. Kaser-Boyd, the test results did not indicate defendant was
malingering. However, on cross-examination, she conceded defendant had scored high
on one of the three criteria used to assess whether an individual is exaggerating or
malingering. She stated the leading researcher on PTSD would consider defendant’s
score to be a “red flag.” But, Dr. Kaser-Boyd did not believe, based on the overall test
results and defendant’s life experiences, that defendant was malingering.
       Dr. Kaser-Boyd also admitted that in responding to one of the tests (the DAPS),
defendant identified the shooting incident and arrest as his most traumatizing event and
not the attack 20 years prior. Defendant’s responses were therefore not reflective of
feelings or symptoms of PTSD before the shooting, but rather, were a result of the
shooting. Dr. Kaser-Boyd stated she was told there were no mental health records for
defendant, nor any previous PTSD diagnosis. Nevertheless, she believed, based on his
life experiences and the test results, that he suffered from PTSD.


                                              5
       The jury acquitted defendant of first degree murder, and of the two assault counts.
The jury convicted defendant of the second degree murder of Mr. Carroll, and found true
all of the firearm allegations related to that offense. The court sentenced defendant to an
aggregate state prison term of 40 years to life, consisting of a 15-year-to-life term on the
murder count, plus a 25 year-to-life term on the firearm enhancement pursuant to section
12022.53, subdivision (d). The court imposed and stayed statutory terms on the other
two firearm enhancements. Defendant was awarded 820 days of presentence custody
credits and ordered to pay various fines and fees.
       This appeal followed.
                                        DISCUSSION
       Defendant’s sole contention on appeal is that he was denied his constitutional right
to the effective assistance of counsel at trial, specifically that (1) counsel failed to request
CALCRIM No. 3428, and (2) counsel failed to object to improper statements by the
prosecutor during closing argument.
       The burden is on defendant to establish ineffective assistance by a preponderance
of the evidence. (People v. Ledesma (1987) 43 Cal.3d 171, 218.) To do so, a defendant
“must show both that trial counsel failed to act in a manner to be expected of reasonably
competent attorneys acting as diligent advocates, and that it is reasonably probable a
more favorable determination would have resulted in the absence of counsel’s failings.”
(People v. Cudjo (1993) 6 Cal.4th 585, 623, citing Strickland v. Washington (1984) 466
U.S. 668, 687-696 (Strickland).)
       On direct appeal, as here, this burden can be stringent. When the record on appeal
“ ‘ “sheds no light on why counsel acted or failed to act in the manner challenged[,] . . .
unless counsel was asked for an explanation and failed to provide one, or unless there
simply could be no satisfactory explanation,” the claim on appeal must be rejected.’
[Citations.] A claim of ineffective assistance in such a case is more appropriately
decided in a habeas corpus proceeding.” (People v. Mendoza Tello (1997) 15 Cal.4th
264, 266-267 (Mendoza Tello), italics added; People v. Jones (2003) 29 Cal.4th 1229,




                                               6
1254 (Jones) [ineffective assistance claim properly resolved on direct appeal only where
record affirmatively discloses no rational tactical purpose for counsel’s actions].)
       Our Supreme Court has cautioned that, if not for this standard, “appellate courts
would become engaged ‘in the perilous process of second-guessing.’ [Citation.]
Reversals would be ordered unnecessarily in cases where there were, in fact, good
reasons for the aspect of counsel’s representation under attack. Indeed, such reasons
might lead a new defense counsel on retrial to do exactly what the original counsel did,
making manifest the waste of judicial resources caused by reversal on an incomplete
record.” (People v. Pope (1979) 23 Cal.3d 412, 426.)
        1.    CALCRIM No. 3428
       CALCRIM No. 3428 provides in relevant part as follows: “You have heard
evidence that the defendant may have suffered from a mental [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.”
Defendant contends he was entitled to the CALCRIM No. 3428 instruction because of his
defense that he did not form the requisite intent for murder because of PTSD symptoms
he was suffering at the time.
       Defendant concedes the court did not have a sua sponte duty to instruct the jury
with CALCRIM No. 3428. (See People v. Larsen (2012) 205 Cal.App.4th 810, 824
(Larsen) [“CALCRIM No. 3428 is a pinpoint instruction that must be given only if
requested by the defendant, and only if substantial evidence supports the defense theory
that defendant’s mental disease or disorder affected the formation of the relevant intent or
mental state.”]; accord, People v. Saille (1991) 54 Cal.3d 1103, 1119; People v. Ervin
(2000) 22 Cal.4th 48, 91 [holding the same as to CALJIC No. 3.32, the equivalent of
CALCRIM No. 3428].) As defendant correctly states, pinpoint instructions need only be
given if specifically requested by counsel and supported by substantial evidence. (Saille,
supra, at p. 1119.)


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       Defendant’s contention is that defense counsel was ineffective because she failed
to request CALCRIM No. 3428, despite the fact that substantial evidence, including the
expert testimony of Dr. Kaser-Boyd, had been presented which supported the defense and
provided a basis upon which the jury could have concluded that defendant had not
formed the requisite intent for murder in any degree. Defendant argues that since it was
not disputed he shot Mr. Carroll, the key to his defense was the intent with which he
pulled the trigger, whether in justifiable self-defense or at least with a mental state
lacking malice so as to reduce the offense to manslaughter.
       We recognize the crux of the defense was defendant’s intent at the time of the
shooting. However, we do not agree that we can determine in this appeal that defense
counsel’s decision not to request CALCRIM No. 3428 amounted to conduct below the
standard of what would be expected of a reasonably competent attorney acting as a
diligent advocate. To the contrary, the record presents several reasonable explanations
for why defense counsel may have made the tactical decision to not focus the jury on the
PTSD defense.
       In opening statement, defense counsel told the jury the evidence would show that
defendant is responsible for causing the death of Mr. Carroll, but the shooting was
justified as an act of self-defense, or at worst, was manslaughter, but not murder.
Defense counsel requested jury instructions (CALCRIM Nos. 505, 522, 570, 571, 580,
625) focused on self-defense, imperfect self-defense, heat of passion, and voluntary
intoxication as the most likely bases upon which the jury would either acquit defendant or
find him guilty only of manslaughter.
       During trial, defense counsel presented the expert testimony of Dr. Kaser-Boyd.
However, on cross-examination, Dr. Kaser-Boyd conceded that defendant had never
previously been diagnosed with PTSD, and had tested high in one category of testing
criteria for malingering. She explained that given her overall examination of defendant
she did not believe he was malingering, but admitted that the leading PTSD researcher
would consider defendant’s high score a “red flag.” Dr. Kaser-Boyd also admitted that
the test results were focused on defendant’s mental health state one year after the


                                              8
incident, and based on defendant’s responses to test questions focused on stressors he felt
because of, and since, the shooting and his subsequent arrest, not before. Given this
testimony, the trial court would have been justified in denying the instruction even if it
had been requested. (See People v. Panah (2005) 35 Cal.4th 395, 484-485 [rejecting
claim of error in trial court refusal to give CALJIC No. 3.32 – the equivalent of
CALCRIM No. 3428 – where expert testimony was only that the defendant was
diagnosed with some sort of psychosis more than 24 hours after the crime, but no
substantial evidence of mental disorder prior thereto].)
       Defendant, in his own testimony, downplayed the significance of the attack he had
suffered 20 years earlier, stating that he had “[gotten] over it.” And, in closing argument,
defense counsel told the jury “[t]his isn’t about PTSD. It isn’t about some psycho
voodoo stuff that’s going on.” Counsel then went on to explain that it was about
common sense emotions, that defendant had been in a vulnerable, intimate moment with
Ms. Brown when he was suddenly attacked, and then had believed he was still facing a
threat and reacted to that threat. Counsel focused the jury on self-defense and imperfect
self-defense.
       In our view, defense counsel had several reasonable bases supporting a decision to
downplay the PTSD testimony, in which defendant’s credibility had been attacked, and to
argue more vigorously for self-defense or imperfect self-defense. Counsel’s failure to
request CALCRIM No. 3428 could have fairly “resulted from an informed tactical choice
within the range of reasonable competence” and the ineffective assistance claim must
therefore fail. (People v. Padilla (2002) 98 Cal.App.4th 127, 136 (Padilla); accord,
Mendoza Tello, supra, 15 Cal.4th at pp. 266-267; Jones, supra, 29 Cal.4th at p. 1254.)
       As a practical matter, even if we were to assume, for the sake of argument, that
counsel’s failure to request the instruction was below the standard of care, defendant has
not affirmatively shown the second required element of an ineffective assistance claim:
prejudice.
       The omission of CALCRIM No. 3428 could not have misled the jury as to the
intent element of any of the charged crimes or the lesser included offenses. The jury


                                              9
instructions as a whole correctly stated the applicable law and instructed on the necessary
elements. CALCRIM No. 3428 “does not delineate or describe an element of an offense.
Rather, it is a pinpoint instruction relating particular facts to a legal issue in the case.”
(Larsen, supra, 205 Cal.App.4th at p. 830.)
       The jury was properly instructed about assessing the testimony of expert witnesses
like Dr. Kaser-Boyd. Nothing in the instructions intimated to the jury that it should
discount defendant’s evidence regarding PTSD, nor precluded the jury from fairly
assessing that evidence in its deliberations related to defendant’s mental state.
       The jury was also given numerous relevant instructions on which it could have
decided to either acquit defendant or reduce the first degree murder charge to second
degree (which it did), or to manslaughter, including CALCRIM No. 505 regarding self-
defense, which was modified to focus the jury on the fact it could consider that
Mr. Carroll had assaulted and threatened defendant before the shooting; CALCRIM
Nos. 522 and 570 regarding the concepts of provocation, sudden quarrel and heat of
passion; CALCRIM No. 571 regarding imperfect self-defense; CALCRIM No. 580
regarding involuntary manslaughter; and CALCRIM No. 625 regarding voluntary
intoxication.
       Finally, there was strong, arguably overwhelming, evidence of defendant’s guilt of
murder. The medical examiner’s testimony was uncontradicted that Mr. Carroll was shot
in the back, and then shot one final time at close range in the temple. Ms. Hall testified
Mr. Carroll never moved again after the initial shots in the back which caused him to
collapse to the floor, that he had been heading out of the apartment at the time he was
shot, and did not have a gun or act like he was reaching for one. This evidence, which
the jury apparently found credible, contradicted defendant’s testimony that he shot in
fear, that Mr. Carroll was facing him at the time and acting aggressively, and that the
final shot to the temple occurred because the gun went off accidentally as he was trying
to leave the apartment and thought Mr. Carroll grabbed at him.
       To summarize, defendant has not shown a more favorable outcome would have
been likely if the jury had been instructed with CALCRIM No. 3428. (Larsen, supra,


                                               10
205 Cal.App.4th at pp. 833-834 [failure to give CALCRIM No. 3428 not error in light of
“forceful” evidence against the defendant, propriety of instructions given to jury, and
because the defendant was not denied right to present mental disorder evidence]; see also
People v. King (2010) 183 Cal.App.4th 1281, 1312 [given overwhelming evidence
against the defendant, it was not reasonably probable defendant would have obtained a
better outcome in the absence of counsel’s errors]; Padilla, supra, 98 Cal.App.4th at p.
137 [strength of prosecution evidence negated reasonable probability the defendant
would have obtained a more favorable outcome with the pinpoint instruction].)
       2.     Prosecutorial Misconduct
       Defendant contends the prosecutor made improper statements during closing
argument, specifically that he misstated the law related to heat of passion. “When a
defendant believes the prosecutor has made remarks constituting misconduct during
argument, he or she is obliged to call them to the court’s attention by a timely objection.
Otherwise no claim is preserved for appeal.” (People v. Morales (2001) 25 Cal.4th 34,
43-44.) Defendant contends his trial counsel failed to make any objection to the
prosecutor’s improper statements, thus forfeiting defendant’s ability to cure the improper
argument at the time of trial which caused the jury to be confused on an important
defense, and also depriving him of appellate review. Defendant contends such failures
constitute ineffective assistance.
       Defendant cites the following statement by the prosecutor as objectionable: “I told
you why this is a first degree murder, a murder plus. Right? I told you why this is not a
voluntary manslaughter, a murder minus. This is definitely not a situation where you find
that [defendant’s] actions were justified. A reasonable person would not have acted this
way. It’s not heat of passion because you’re looking at it from an average person.
Would an average person shoot someone in that situation? No.” The prosecutor, while
correctly reading the elements of the heat of passion instruction, also said: “So the
question is would a person of average disposition, your average person, would they have
shot Mr. Carroll in that situation[?] . . . Would an average person have shot Mr. Carroll
dead under those circumstances?”


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       Defendant contends the same type of argument was deemed improper in People v.
Najera (2006) 138 Cal.App.4th 212. Najera explained that with the defense of heat of
passion, “[t]he focus is on the provocation—the surrounding circumstances—and
whether it was sufficient to cause a reasonable person to act rashly. How the killer
responded to the provocation and the reasonableness of the response is not relevant to
sudden quarrel or heat of passion.” (Id. at p. 223.) We find nothing improper in the
prosecutor’s argument. The prosecutor argued the circumstances would not have caused
a reasonable person to act rashly, not that defendant responded irrationally to
circumstances that would have enraged a reasonable person.
       In any event, failure to object to evidence or argument “ ‘rarely constitutes
constitutionally ineffective legal representation . . . .’ [Citation.]” (People v. Huggins
(2006) 38 Cal.4th 175, 252; see also People v. Ghent (1987) 43 Cal.3d 739, 772-773
[rejecting contention counsel’s failure to object during prosecutor’s closing argument
amounted to ineffective assistance because counsel “may well have tactically assumed
that an objection or request for admonition would simply draw closer attention to the
prosecutor’s isolated comments”]; People v. Beagle (1972) 6 Cal.3d 441, 458, superseded
by statute on other grounds as stated in People v. Rogers (1985) 173 Cal.App.3d 205,
208-209 [failure to make certain objections to evidence ordinarily within realm of trial
tactics over which court will not engage in “judicial hindsight”]; People v. Zimmerman
(1980) 102 Cal.App.3d 647, 658 [failure to object to evidence ordinarily “held
insufficient to establish an unconstitutional impairment of the right to effective
counsel”].)
                                      DISPOSITION
       The judgment of conviction is affirmed.


                                                         GRIMES, J.
We concur:


              BIGELOW, P. J.                             RUBIN, J.


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