Filed 5/5/15




                            CERTIFIED FOR PUBLICATION

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FOURTH APPELLATE DISTRICT

                                       DIVISION THREE


THE PEOPLE,

    Plaintiff and Respondent,                        G048644

                 v.                                  (Super. Ct. No. 11CF1199)

ANNAMARIA MAGNO GANA,                                OPINION

    Defendant and Appellant.



                 Appeal from a judgment of the Superior Court of Orange County, Francisco
P. Briseño, Judge. Affirmed.
                 Law Offices of Alan Fenster, Alan Fenster and Ryan M. Ahern, for
Defendant and Appellant.
                 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, William M. Wood,
Brendon W. Marshall and Kathleen Radez, Deputy Attorneys General, for Plaintiff and
Respondent.


                                   *          *          *
              A jury found defendant Annamaria Magno Gana guilty of the first degree
murder of her husband Antonio Potenciano Gana, and the willful, deliberate, and
premeditated attempted murders of her two sons, Tony Gana and Alfonso Gana. In
addition, the jury found defendant committed the murder while lying in wait and that she
personally discharged a firearm in committing the murder and one of the attempted
murders. The trial court denied defendant’s new trial motion, but granted the
prosecution’s request to reduce her conviction on count 1 to second degree murder and to
strike the lying in wait finding for sentencing. It then imposed a 40-year-to-life prison
term for the murder and lesser, concurrent terms for each of the attempted murders.
              Defendant appeals, contending the trial court committed reversible error in
denying her requests to instruct the jury on misdemeanor manslaughter and
unconsciousness, its failure to modify an instruction on evidence regarding mental
disease or defect, plus its exclusion of testimony by a physician who treated her after the
shootings. In addition, defendant argues her trial attorneys failed to provide her with
effective assistance. Since we find no prejudicial error, the judgment is affirmed.


                                          FACTS


              One afternoon in May 2011, defendant shot and killed her husband and
chased after her fleeing sons, shooting at and striking her eldest son while the younger
child hid. Defendant then attempted to shoot herself in the head, but the bullet merely
grazed her neck.
              At trial, Tony Gana described the shooting as follows: “I hear[d] this loud
noise. . . . Alfonso yells that it was a gunshot. And then my Dad gets up, runs to the
[bed]room, Alfonso and I right behind him[.] . . . I stop at the doorway, my Dad rushes
in, and I see my Mom holding a gun[.] . . . [T]hen [my Dad] tries to grab the gun from
her. I see him get shot, and Alfonso and I run away. I reached the kitchen, but then I

                                             2
stopped, because I didn’t believe that it was real[.] . . . I turn around, I see Alfonso
hiding behind one of the couches, and then I see my mother chasing after me with a gun.
I yell at her don’t shoot, then she shoots me, and I fall to the ground[.] . . . I hear another
gunshot, I thought it was for me, but it wasn’t[.] [T]hen I see Alfonso taking away the
gun from my Mom, and that’s when I run out and called 911.” He described defendant as
“look[ing] possessed. . . . [H]er eyes were wide open, they looked bigger than normal.
No emotion on her face.”
              Alfonso Gana testified that after defendant shot and wounded his brother,
he saw her point the gun at her head and fire it. She then started crying and saying,
“‘What – what did I do.’” Alfonso picked up the gun from the floor and left to find his
brother.
              Responding law enforcement officers found defendant in the master
bedroom holding her husband and crying. Antonio Gana was bleeding from a bullet
wound on his chest. He was transported to a hospital, but later died. There was no soot,
stippling or gunpowder residue found on Antonio Gana’s body, indicating he was more
than two feet from the end of the gun’s barrel when defendant shot him. The prosecution
presented evidence that the revolver defendant used required the hammer to be cocked
before a trigger pull would cause the gun to discharge.
              A deputy sheriff testified that when he approached defendant, she was
silent and had her eyes closed. He nudged her and she opened her eyes, “star[ing]
straight ahead” with what he described as “a thousand mile stare.” He asked defendant
“‘who shot,’” and she responded, “‘I did, I did, please kill me.’”
              Defendant did not respond when paramedics asked her a series of standard
questions, but merely opened her eyes and stared. They transported her to a hospital with
an assessment of having “an altered level of consciousness.”
              At the hospital a tube was inserted into defendant’s mouth to assist her
breathing. A deputy sheriff guarding defendant testified that when she awoke the next

                                               3
morning, she removed the tube from her mouth and began making statements that she
wanted to die. Defendant repeated these statements to attending nurses and a doctor,
explaining she had killed her husband and shot her children.
              While still at the hospital, defendant was questioned by sheriff’s
investigators. The interrogation was audiotaped and the recording played at trial.
              After being advised of her Miranda rights (Miranda v. Arizona (1966) 384
U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]), defendant told the investigators that in late
2010, she had been diagnosed with breast cancer. At the time of the shooting she was
receiving chemotherapy and also taking Ambien to help her sleep. In addition, she was
under stress from the financial problems of operating a business that was not doing well.
She and her husband were attempting to sell the business, but she was concerned the sale
would not occur. Defendant claimed to be overwhelmed with everything that needed to
be done.
              For weeks before the shooting, she claimed to have suicidal thoughts and
developed a plan to kill her husband and children before taking her own life. Defendant
told the investigators she heard a voice in her head telling her that she needed to carry out
her scheme. The morning of the shooting she loaded the gun. Some friends visited their
home that afternoon. After the friends left, defendant went to the bedroom, retrieved the
gun, and fired a shot into the ceiling. She re-cocked the weapon and when her husband
entered the bedroom, she aimed at his heart and shot him. She then ran after her sons and
shot her older son. Defendant also thought she shot at her younger son before turning the
gun on herself. She recalled Alfonso grabbing the gun as it discharged. When the police
arrived, defendant acknowledged telling them she wanted to die.
              The defense called medical experts to testify about defendant’s physical
and mental condition before the shooting. The oncologist treating defendant testified that
she had been diagnosed with an aggressive form of breast cancer. After undergoing a
double mastectomy, defendant was placed on a chemotherapy regimen that involved four

                                              4
separate drugs. The drugs can cause patients to suffer memory loss, fatigue, difficulty
remaining focused, as well as exhaustion. Because defendant developed a rash caused by
the cancer medications, she was also given steroids that had side effects, including
psychosis, mood disorder, and insomnia. The Ambien prescribed for her insomnia also
had the potential to cause psychosis in rare circumstances. However, the oncologist’s
notes indicated that while defendant complained of loss of appetite, fatigue, a skin rash,
and losing her hair in addition to insomnia, she did not mention suffering from
depression, mood changes, or psychosis.
              Dr. Michael Tramell, a psychiatrist who interviewed defendant, expressed
the opinion that defendant was suffering from a psychotic depression on the day of the
shooting. He claimed this condition resulted from a “combination of factors, including
both her depression as well as the medications she was taking. It appears she was
experiencing a delirium, which is a kind of fluctuating level of consciousness, due to
medical illness that caused her to . . . have worsening symptoms of depression and
worsening psychoses.”
              The defense also called Dr. Kevin Booker, a psychologist. He said
defendant was “suffering from . . . a clinically significant . . . major depression” when he
interviewed her. Booker concluded that at the time of the shooting, defendant’s
“‘thoughts/beliefs and actions [were] related to a severe mental state-specific psychiatric
condition and not to asocial psychopathological character traits.’”
              Defendant testified in her own defense. She claimed that she began feeling
depressed during the second cycle of her chemotherapy. When she developed a rash
from the medications, she found it difficult to sleep. The oncologist prescribed Ambien
to help her sleep and some medication for her rash. Defendant also lost her appetite. She
felt weak, fatigued, and had difficulty reading.
              On the day of the shooting, defendant claimed she was sad, depressed,
tired, and did not feel normal. She recalled having breakfast with her family, the arrival

                                             5
of friends for a visit, and trying to handle business paperwork. Defendant went to her
bedroom to get some sleep and to be alone. She testified she was “feeling helpless,
feeling depressed, feeling like every single problem was a major problem.”
              On direct examination, defendant said she recalled retrieving the gun,
recognizing what it was, seeing bullets, and wanting to die. But she could not remember
loading the weapon. Defendant also recalled hearing a gunshot, seeing her husband and
children enter the bedroom, being in the living room with her elder child, and hearing her
younger son call her name. But she did not remember aiming and firing the gun at any of
them. Defendant claimed her next recollection was hugging her husband in the bedroom,
then seeing people, being in an ambulance, and waking up in a hospital.
              On cross-examination, the prosecutor asked defendant about an entry in
Tramell’s report where she told him that “‘she began to plan how she might kill herself’”
at lunchtime on the day of the shooting and loaded the weapon shortly thereafter.
Defendant said she could not recall making this statement. The prosecutor also
questioned her about Tramell’s claim she expressed the belief that her family “‘wouldn’t
be able to live without [her],’” and thus she “‘need[ed] to kill them so we can all die
together and no one has to suffer.’” Again, defendant denied any recollection of making
this statement. Defendant also denied telling Booker “‘we were all going to die because
everyone was getting sick.’”
              Defendant claimed her recollection of events at the hospital were equally
vague. She remembered seeing a nurse, a sheriff’s deputy, speaking with the
investigators, plus learning her children were okay, and that her husband was dead. But
she denied any recollection of what she said to the investigators even after listening to the
audiotape of her interrogation.




                                             6
                                      DISCUSSION


1. Instructional Error
              1.1 Background
              The trial court instructed the jury on the charged crimes of first degree
murder, based on theories of a willful, deliberate, and premeditated killing and by lying
in wait, and attempted murder. In addition, the court gave instructions on the lying in
wait special circumstance allegation as to the murder count and whether the attempted
murders were committed willfully, deliberately, and with premeditation. The court also
instructed on the lesser included offense of second degree murder resulting from either an
intentional but unpremeditated killing or the commission of a dangerous act with a
conscious disregard for life.
              Concerning the evidence of defendant’s state of mind during the shooting,
the court gave the following instructions: CALJIC No. 3.32 (jury may consider evidence
of mental disease or defect “for the purpose of determining whether the defendant
actually formed the required specific intent or mental state which is an element of the
crimes charged or the lesser crime or any of the allegations”); CALJIC No. 4.21
(relevance of intoxication “in deciding whether the defendant had the required specific
intent and/or mental state”); and CALJIC No. 8.73.1 (evidence of hallucination or
delusion may be considered “on the issue of whether” defendant “killed or attempted to
kill with or without deliberation and premeditation and/or lying in wait”). But the court
denied defense requests for instructions on voluntary manslaughter and involuntary
manslaughter as lesser included offenses to the murder charge, and on the defense of
unconsciousness.
              Defendant contends the trial court committed prejudicial error in refusing to
instruct the jury on involuntary manslaughter and unconsciousness, and in giving a


                                             7
version of CALJIC No. 3.32 that failed to clarify the evidence of mental disease or defect
could be used to determine whether she harbored malice.


              1.2 Involuntary Manslaughter
              Involuntary manslaughter is defined as an “unlawful killing . . . without
malice” where the killing occurs “in the commission of an unlawful act, not amounting to
a felony; or in the commission of a lawful act which might produce death, in an unlawful
manner, or without due caution and circumspection.” (Pen. Code, § 192, subd. (b).)
Defendant argues the first alternative applies in this case, citing the evidence on her state
of mind and claiming the shooting of her husband could be found to have resulted from
the act of brandishing a firearm. (Pen. Code, § 417, subd. (a)(2).)
              We disagree. “[A] trial court must . . . instruct the jury on lesser included
offenses ‘when the evidence raises a question as to whether all of the elements of the
charged offense were present [citation], but not when there is no evidence that the offense
was less than that charged.’” (People v. Barton (1995) 12 Cal.4th 186, 194-195.) But
“the existence of ‘any evidence, no matter how weak’ will not justify instructions on a
lesser included offense.” (People v. Breverman (1998) 19 Cal.4th 142, 162.) “[S]uch
instructions are required whenever evidence that the defendant is guilty only of the lesser
offense is ‘substantial enough to merit consideration’ by the jury,” i.e., “‘“evidence from
which a jury composed of reasonable [persons] could . . . conclude[]”’ that the lesser
offense, but not the greater, was committed.” (Ibid.)
              Defendant focuses her argument on the evidence concerning her mental
condition and the effects of the medication she was taking at the time of the shooting.
The trial court did instruct the jury they could consider that evidence in relation to
whether she formed the specific intent and mental state required for each of the charged
crimes. Further, as to count 1 the jury was provided the alternative of convicting



                                              8
defendant of second degree murder on two separate theories if it concluded the evidence
failed to support a first degree murder verdict.
              To support an instruction on involuntary manslaughter based on
brandishing a firearm there had to be evidence defendant “dr[e]w or exhibit[ed]
a[]firearm . . . in a rude, angry, or threatening manner.” (Pen. Code, § 417, subd. (a)(2).)
Cases holding the evidence supported a brandishing charge involve scenarios where the
crime was preceded by a quarrel or confrontation between the participants. (People v.
Lee (1999) 20 Cal.4th 47, 61 [“defendant used his gun in a quarrel” where he and his
wife were arguing and pushing each other]; People v. Rivera (2003) 114
Cal.App.4th 872, 875-876 [defendant pointed gun at the victim when he attempted to
intervene in a fight with a girlfriend,]; People v. Mercer (1980) 113 Cal.App.3d 803, 805-
806 [ordered to surrender his firearm, defendant assumed a classic gunfighter stance and
told officer to come and take it].)
              The evidence at the trial in this case is distinguishable. Defendant
acknowledged Antonio Gana had been a good husband. The children testified defendant
was in the bedroom alone and there was no fight, quarrel, argument, or struggle between
her and her husband that preceded the shooting. When Antonio and the children reached
the bedroom after the first shot, they saw defendant sitting on the bed holding the gun.
Without saying anything, she shot her husband while still several feet away from her
before chasing after the children shooting at and striking at least one of them. Under
these circumstances, the trial court did not err in refusing to give the requested
involuntary manslaughter instruction based on a misdemeanor-manslaughter theory.


              1.3 CALJIC No. 3.32
              The version of CALJIC No. 3.32 given to the jury provided: “You have
received evidence regarding a claim or claims of mental disease, mental defect or mental
disorder of the defendant at the time of the commission of the crimes charged. You

                                              9
should consider this evidence solely for the purpose of determining whether the
defendant actually formed the required specific intent or mental state which is an element
of the crimes charged or the lesser crime or any of the allegations. You are not allowed
to consider this evidence for any other purpose.” Further, the trial court also told the
jury: “The mental states required are included in the definitions of the crimes or
circumstance or allegations set forth elsewhere in these instructions.”
              Defendant argues CALJIC No. 3.32 was deficient “because it did not
clearly indicate that evidence of mental defect could be used for the determination of the
presence of malice aforethought.” This argument lacks merit.
              “‘[T]he correctness of jury instructions is to be determined from the
entire charge of the court, not from a consideration of parts of an instruction or from a
particular instruction.’” (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1220.) “‘[T]he
absence of an essential element in one instruction may sometimes be supplied by
another. . . .’” (People v. Rhodes (1971) 21 Cal.App.3d 10, 21.) Furthermore, “‘“‘Jurors
are presumed to be intelligent, capable of understanding instructions and applying them
to the facts of the case.’”’” (People v. Hajek and Vo, supra, 58 Cal.4th at p. 1220; People
v. Yoder (1979) 100 Cal.App.3d 333, 338.) Consequently, “[i]n reviewing a claim of
instructional error, the ultimate question is whether ‘there was a reasonable likelihood the
jury applied the challenged instruction in an impermissible manner.’” (People v. Hajek
and Vo, supra, 58 Cal.4th at p. 1220.)
              People v. Rundle (2008) 43 Cal.4th 76, overruled on another ground in
People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22, rejected a similar complaint. There
it was also argued “the trial court erred by failing to specifically name for the jury the
intent or mental state to which defendant’s ‘mental condition’ evidence was relevant,”
and “without such an instruction, it is likely the jury did not understand that
premeditation and deliberation and the specific intent to commit rape were the intent and
mental states to which this instruction referred.” (People v. Rundle, supra, 43 Cal.4th at

                                              10
p. 148, fn. omitted.) The Supreme Court disagreed: “We previously have rejected
challenges similar to defendant’s regarding the failure explicitly to define the term
‘mental states’ in instructions concerning the effect of a mental defect upon the
defendant’s ability to form mental states required for the commission of various offenses.
Thus, we have found no error in cases in which a mental defect instruction merely
mentioned the term ‘mental state’ in a generic sense, but the trial court elsewhere either
specifically explained that premeditation and deliberation were mental states necessary
for a conviction of first degree murder [citations], or generally instructed that ‘“[t]he
mental state required is included in the definition of the crime charged.”’” (Id. at p. 149;
People v. Smithey (1999) 20 Cal.4th 936, 988-989 [“the court instructed the jury that
‘[t]he mental state required is included in the definition of the crime charged[]’” and “the
definition of murder included an explanation of malice, premeditation, and
deliberation”].)
              The same is true here. Defendant does not contend the trial court failed to
adequately instruct the jury on the elements of the charged crimes, including the element
of malice aforethought. Applying the appropriate standard of review, we conclude there
is no possible likelihood the jury failed to properly apply CALJIC No. 3.32.


              1.4 Unconsciousness
              The defense also unsuccessfully sought instructions on unconsciousness,
both as a complete defense and, in the event the jury found defendant acted while
voluntarily intoxicated, to reduce her conviction on the murder charge to involuntary
manslaughter. On appeal, defendant claims the trial court committed reversible error in
refusing to give these instructions, arguing there was substantial evidence her medical
condition and the medications she was taking “caused [her] to suffer a severe level of
delirium resulting in fluctuating levels of consciousness at the time of the shooting.”



                                              11
              We agree the evidence sufficed to support the requested instructions. A
person “who commit[s] the act charged without being conscious thereof” is deemed
incapable of committing a crime. (Pen. Code, § 26, Fifth par.) “Unconsciousness for this
purpose need not mean that the actor lies still and unresponsive . . . . Thus
unconsciousness ‘“can exist . . . where the subject physically acts in fact but is not, at the
time, conscious of acting.”’” (People v. Ochoa (1998) 19 Cal.4th 353, 423-424; People
v. Methever (1901) 132 Cal. 326, 329, overruled on other grounds in People v. Gorshen
(1953) 51 Cal.2d 716, 731-734 [unconsciousness “contemplates . . . cases of persons of
sound mind,—as, for example, somnambulists, or persons suffering with delirium from
fever or drugs”].) It “‘is ordinarily a complete defense to a charge of criminal
homicide,’” unless “‘the state of unconsciousness results from intoxication voluntarily
induced . . . . (Pen. Code, § 22.)’” (People v. Ochoa, supra, 19 Cal.4th at p. 423.)
              Although defendant gave a detailed accounting of the shooting and her
motivation for it shortly after the incident, at trial she testified to having only a limited
recollection of the event, acknowledging only that she held the gun and heard a shot.
“That [s]he did not, by the time of trial, accurately recall certain details of the shootings
does not support an inference [s]he was unconscious when [s]he committed them.”
(People v. Halvorsen (2007) 42 Cal.4th 379, 418.)
              But here there was other evidence that justified giving unconsciousness
instructions. Tony Gana testified defendant’s eyes were wide open and her face lacked
emotion when she shot his father. A deputy sheriff also described her as having “a
thousand mile stare” and paramedics said she remained silent when asked a series of
standard questions.
              Additionally, “medical testimony . . . as to why [the defendant] was
unconscious” can support an instruction on this defense. (People v. Coston (1947) 82
Cal.App.2d 23, 40.) The defense presented the testimony of medical experts who
identified the medications defendant was taking to combat cancer and to overcome the

                                               12
adverse effects of the chemotherapy, and explained how these medications could affect
her mental state. In particular, Tramell concluded defendant was suffering from a
psychosis likely caused by “a combination of events, combination of factors, including
both her depression as well as the medications that she was taking. It appears that she
was experiencing a delirium, which is a kind of fluctuating level of consciousness, due to
medical illness that caused her to . . . have worsening symptoms of depression and
worsening psychoses.”
              Thus, we conclude the evidence supported instructions on unconsciousness.
Nonetheless, the trial court’s refusal to give them does not require a reversal of the
judgment. The absence of an instruction on a defense is not prejudicial if “‘the factual
question posed by the omitted instruction was necessarily resolved adversely to the
defendant under other, properly given instructions. In such cases the issue should not be
deemed to have been removed from the jury’s consideration since it has been resolved in
another context, and there can be no prejudice to the defendant since the evidence that
would support a finding [favorable to the defendant] has been rejected by the jury.’”
(People v. Wright (2006) 40 Cal.4th 81, 98.)
              Here, the refusal to instruct on unconsciousness did not bar defendant from
presenting a meaningful defense based on her mental condition because she “was
permitted to use the same underlying facts to mitigate the crime[s].” (People v. Maury
(2003) 30 Cal.4th 342, 422.) On the charged crimes and allegations, the court told the
jury it could consider the evidence of mental disease, defect, or disorder in determining
whether defendant “actually formed the required specific intent or mental state[s].” And
the jury was told that if it found she suffered from a hallucination or delusion during the
shooting, it could consider this evidence in determining whether she “killed or attempted
to kill with or without deliberation and premeditation, and/or lying in wait.” The court
also instructed the jury that if it found defendant was intoxicated, it could consider this
fact “in deciding whether [she] had the required specific intent and/or mental state” for

                                             13
the crimes. Further, as to the murder charge the jury was given the option of convicting
defendant of the lesser included offense of second degree murder.
              Granted, the jury was not asked to decide whether she was unconscious
when the shootings occurred. But neither was it told to presume defendant was conscious
at that time. The jury was afforded the opportunity to consider how her cancer and the
drugs she was taking to combat the disease affected her ability to form the specific intents
and the mental state of malice necessary to support her convictions on the charged crimes
and the true findings on the associated special circumstance and allegation. By its
verdicts and findings the jury clearly “rejected defendant’s [mental state] defense”
(People v. Maury, supra, 30 Cal.4th at p. 422) in another context and thus the refusal to
instruct on unconsciousness was harmless error.


2. Exclusion of the Treating Physician’s Testimony
              2.1 Background
              In an amended witness list filed shortly before trial, the defense included
the name of Dr. Ebtesam Khaled, describing her as “a psychiatrist who worked with the
Orange County Jail and was the defendant’s physician/psychiatrist . . . while defendant
was incarcerated.” But during trial, defense counsel claimed Khaled worked at the
hospital where defendant was initially taken after the shooting, and asserted her
testimony would rebut that of the sheriff’s investigator who had stated defendant
“appeared to [be] awake and alert” during the interrogation. Defense counsel represented
that Khaled “had created . . . notes” which described defendant as having “impaired
judgment” when the sheriff’s investigators questioned her. However, defense counsel
acknowledged “We haven’t spoken to her yet.” The court informed the defense Khaled
“is not going to testify until you make an offer of proof.”
              Later when the court asked for the offer of proof, defense counsel
acknowledged they still had not spoken to Khaled. But, citing a copy of her notes,

                                             14
repeated the claim she would testify as a percipient witness concerning her assessment of
defendant’s “medical condition” and the medications administered to her. The prosecutor
objected to allowing Khaled to testify. He disputed the claim she was a percipient
witness because the copy of her notes that had been provided to him indicated she
worked at the jail, not the hospital where the interrogation occurred. The prosecutor
further argued the jury had already heard extensive testimony from the other defense
experts about defendant’s mental condition.
              In reply, defense counsel acknowledged Khaled was employed at the jail
hospital, but insisted she could still rebut the investigator’s testimony. The trial court
denied the request to call Khaled, concluding the defense failed to make “a sufficient
showing” and “I think that falls within [Penal Code section] 1054.”


              2.2 Analysis
              Defendant contends the trial court committed prejudicial error in excluding
Khaled’s testimony, claiming she was the only witness “who would be able to testify as
to [defendant’s] medical treatment and condition at the time of the interrogation.”
              First, it is undisputed the defense failed to timely disclose its intent to call
Khaled as a witness. (Pen. Code, §§ 1054.3, subd. (a)(1), 1054.7.) One of the sanctions
available for violating discovery is “prohibiting the testimony of a witness.” (Pen. Code,
§ 1054.5, subd. (b).)
              Defendant argues she was excused from compliance with the discovery
statutes because the defense did not recognize the relevance of Khaled’s testimony until
the investigator testified about her state of mind during a pretrial hearing on the
admissibility of her confession. But even if true, she failed to make a sufficient showing
Khaled could provide relevant testimony on her medical condition when questioned by
the sheriff’s investigators. The record reflects Khaled worked as a physician at the jail.
The investigators interrogated defendant while she was still at the hospital before her

                                              15
arrest and incarceration. We review rulings on the admission or exclusion of evidence
under an abuse of discretion standard (People v. Prince (2007) 40 Cal.4th 1179, 1222;
People v. Lamb (2006) 136 Cal.App.4th 575, 581), and since it is doubtful Khaled could
provide relevant testimony on defendant’s mental condition when interrogated, the
appellate record does not reflect the trial court’s ruling was arbitrary or capricious.
              However, defendant further contends her trial attorneys were incompetent
in failing to timely list Khaled as a defense witness and make an adequate showing that
her testimony was probative on defendant’s state of mind during the interrogation. Thus,
we must further consider whether excluding this testimony caused defendant prejudice.
              The answer is no. A defendant asserting he or she failed to receive the
effective assistance of counsel “bears the burden of showing by a preponderance of the
evidence that (1) counsel’s performance was deficient because it fell below an objective
standard of reasonableness under prevailing professional norms, and (2) counsel’s
deficiencies resulted in prejudice.” (People v. Centeno (2014) 60 Cal.4th 659, 674.) But
since “‘[t]he object of an ineffectiveness claim is not to grade counsel’s performance’”
(In re Cox (2003) 30 Cal.4th 974, 1019), where “‘it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should
be followed.’” (Id. at pp. 1019-1020; quoting Strickland v. Washington (1984) 466 U.S.
668, 697 [104 S.Ct. 2052, 80 L.Ed.2d 674].) “[T]o demonstrate prejudice . . ., a
‘defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.’” (People
v. Banks (2014) 59 Cal.4th 1113, 1170.) “[A] ‘“‘reasonable probability is defined as one
that undermines confidence in the verdict.’”’” (People v. Carrasco (2014) 59
Cal.4th 924, 982.)
              Defendant argues Khaled’s testimony was “essential to the defense theory
that [her] statements to [the sheriff’s investigators] were the product of the hospital’s
chemical restraints (resulting in a coma), the medications provided by the hospital, and

                                              16
her mental state.” This contention is incorrect. As just discussed, the record indicates
Khaled did not see or treat defendant until after defendant was transported to the jail.
              Further, other evidence was presented concerning defendant’s medical
condition and the medications she received at the hospital. The prosecution presented the
testimony of the deputy sheriff who guarded defendant at the hospital on the morning
after the shooting and one of the investigators who questioned her. The defense had the
opportunity to cross-examine both of these witnesses. In addition, the jury listened to an
audiotape of the interrogation, which included defendant’s correct responses to questions
on the day of the week, the month, the year, and the name of the president. The accuracy
of defendant’s statements to the investigators were confirmed to a certain extent by the
similar statements she made to Tramell and Booker when each of them interviewed her.
              The defense was allowed to introduce evidence that questioned defendant’s
state of mind during the interrogation and identified the medications that had been
previously administered to her. Defendant testified at trial, describing for the jury what
she recalled about the interrogation. Tramell identified certain aspects of the recorded
interrogation he claimed reflected defendant’s psychotic behavior. He mentioned the
“increased latency [delayed response to questions] in her speech,” the “mild slurring of
her words,” “emotional liability where all of a sudden she would just burst into tears and
wail[],” and “inappropriate answers to questions.” Booker testified that he had reviewed
the hospital records and noted she received antipsychotic medication while at that
facility.
              Consequently, the jury received evidence that allowed it to assess
defendant’s mental condition during the interrogation and to determine the credibility of
the answers she gave to the investigators. Even assuming defense counsel were
ineffective in failing to timely list Khaled as a potential witness or make an adequate
offer of proof on the relevance of her proposed testimony, it did not cause prejudice to



                                             17
defendant and the absence of her testimony does not undermine our confidence in the
jury’s verdicts.


3. Ineffective Assistance of Counsel
              In addition to attacking the adequacy of her attorneys’ efforts to introduce
Khaled’s proffered testimony, defendant argues they failed to provide her with the
effective assistance of counsel in two other contexts; failing to timely research the law on
involuntary manslaughter, and not objecting to the prosecutor’s purported misstatement
of law during closing argument.
              These contentions are not supported by the appellate record. As for the
claim counsel “failed to properly research the relevant law on diminished capacity or the
effect of mental deficiencies on the lesser included offense of manslaughter before trial,”
defendant’s attorneys asked the court to instruct on both voluntary and involuntary
manslaughter, including the misdemeanor-manslaughter theory defendant asserts in this
appeal.
              The remaining assertion is that counsel failed to object to the prosecutor’s
purported misstatement of the law during closing argument. But the record reflects that
the prosecutor merely confused the CALJIC instruction numbers addressing the issues of
mental condition and hallucination: “When you go back into that room and you start
thinking about intent to kill and malice aforethought, you’re going to talk about that, you
find somebody saying well, let’s talk about hallucination, you should s[ay] no, wait, 3.32
says we are not allowed to consider it. And 8.73.1, actually 8.73.1 has that information.
[¶] Be true to your oath. The actual instruction continues, and it’s more specific, 8.73.1,
or 3.32, use the one in yellow, 8.73.1. If you find it to be true that the defendant suffered
from a hallucination and/or delusion, you may consider the impact of this hallucination
and/or delusion, if any, I submit to you there was none, if any, on the issue of
premeditation and deliberation and/or lying in wait. However, you must not consider this

                                             18
evidence for any other reason, including the issue of the specific intent to kill. I wasn’t
making that up. You’re not allowed under the law to consider hallucinations or delusion
on the intent to kill.” As the foregoing quotation indicates, the prosecutor mixed up the
numbers of the instructions concerning use of evidence of mental disease or defect and
hallucination or delusion. But the point made by him did not misstate the instruction.
Consequently, there was no need to interpose an objection.
              We find defendant’s claims of ineffective assistance of counsel are without
merit.


CERTIFIED FOR PUBLICATION


                                      DISPOSITION


              The judgment is affirmed.


                                                  RYLAARSDAM, ACTING P. J.

I CONCUR:



ARONSON, J.




                                             19
Moore, J., Concurring and Dissenting.
               I agree with most of the majority opinion. The majority found the trial
court erred in failing to instruct the jury on the defense of unconsciousness as a result of
defendant taking drugs to combat her cancer (chemotherapy) and to overcome the effects
of chemotherapy. (Maj. opn., ante, p. 12.) I concur in that decision. I respectfully
dissent, however, from the conclusion that the error was harmless. I also would find the
court prejudicially erred in failing to instruct on unconsciousness without reference to
voluntary intoxication.
               Defendant’s oncologist, Dr. Andreea Nanci, described defendant’s
chemotherapy regimen. She pointed out one of the drugs in her treatment is known to
cause potential neurotoxicity. Exactly how the drug causes the neurotoxicity is subject to
ongoing research. One side effect of the chemotherapy treatment defendant received is
known as “chemo brain.” A doctor testified “most chemotherapy agents can result in
significant . . . incidence of . . . delirium, agitation, psychoses, [and] fluctuating levels of
consciousness.” (Italics added.) When side effects occur, they last “at least several
weeks, usually more, months, in occasional patients, years.” The reason is because there
is not just the immediate effect of the chemotherapy drugs, but also their cumulative
effect as an affected patient goes through each additional cycle of chemotherapy.
Defendant went through four cycles of chemotherapy. It is important to note, “the
particular side effects for a given patient cannot be predicted because everybody is
different.”
               “Unconsciousness, if not induced by voluntary intoxication, is a complete
defense to a criminal charge. ([Pen. Code,] § 26, class Four; People v. Coogler (1969) 71
Cal.2d 153, 170; People v. Newton (1970) 8 Cal.App.3d 359, 376; see also [Pen. Code,] §
20 [to constitute a crime there must exist a joint operation of act and intent].) To
constitute a defense, unconsciousness need not rise to the level of coma or inability to


                                                1
walk or perform manual movements; it can exist ‘where the subject physically acts but is
not, at the time, conscious of acting.’ (Newton, at p. 376.) If the defense presents
substantial evidence of unconsciousness, the trial court errs in refusing to instruct on its
effect as a complete defense. (Id. at p. 377, citing People v. Wilson (1967) 66 Cal.2d 749,
764.)” (People v. Halvorsen (2007) 42 Cal.4th 379, 417.) On the other hand,
unconsciousness “‘is not a complete defense’” when it results from voluntary intoxication
(People v. Ochoa (1998) 19 Cal.4th 353, 423), but it may reduce a murder to involuntary
manslaughter (People v. Ferguson (2011) 194 Cal.App.4th 1070, 1081-1082).
              In terms of voluntary intoxication, I see a distinction between ingesting
alcohol or narcotics, and undergoing chemotherapy. Subjecting one’s self to
chemotherapy can hardly be considered “voluntary” on the part of the cancer patient
when the alternative is death. Here, defendant had a particularly aggressive cancer that
already required a double mastectomy. Surely we would not hold a defendant’s
statement to police was “voluntary” if it was made in response to a threat of death. (See
People v. Williams (1997) 16 Cal.4th 635, 659 [prosecution bears burden of proving
voluntary nature of confession]; United States v. Tingle (9th Cir. 1981) 658 F.2d 1332,
1335 [exploiting mother’s fear that she would not see her child for a long time if she
failed to cooperate made subsequent statement involuntary].)
              In terms of intoxication, itself, there is a difference between voluntarily
ingesting alcohol or narcotics—acts which may be undertaken to acquire an intoxicated
state, and which everyone knows adversely affects the way the brain reacts—and
receiving chemotherapy. While there was testimony chemotherapy may have certain side
effects, nobody undergoes chemotherapy to become intoxicated.
              The majority concludes the error in failing to instruct on unconsciousness
was harmless. (Maj. opn., ante, p. 13.) In doing so, the majority noted the jury had not
only been instructed that it could consider any hallucination or delusion in determining
on the issues of whether she killed or attempted to kill with deliberation and

                                              2
premeditation, and/or by lying in wait, that intoxication by defendant could be considered
in determining whether defendant had the required specific intent or mental state, but also
that “it could consider evidence of mental disease, defect, or disorder in determining
whether defendant ‘actually formed the required specific intent or mental state[s].’”
(Ibid.) The majority reasoned that as the jury returned a verdict of guilty for first degree
murder, which required the jury to find defendant premeditated and deliberated killing
her husband, or killed him by means of lying in wait, the jury rejected evidence of
defendant’s unconsciousness. (Id. at pp. 13-14.)
              I agree that when there is reason to believe the jury through its verdict
impliedly rejected a defense theory, the failure to instruct on that theory may be harmless
under state law. (See People v. Maury (2003) 30 Cal.4th 342, 422 [error harmless where
although defendant was deprived of the complete defense he used the same evidence to
mitigate crime]; People v. Lewis (2001) 25 Cal.4th 610, 646 [“failing to instruct the jury
on a lesser included offense is harmless when the jury necessarily decides the factual
questions posed by the omitted instructions adversely to defendant”]; People v. Millwee
(1998) 18 Cal.4th 96, 157 [“failure to instruct on a lesser included offense is not
prejudicial where ‘the factual question posed by the omitted instruction was necessarily
resolved adversely to the defendant’”].)
              The majority’s analysis, to my mind, does not demonstrate the failure to
instruct on unconsciousness was harmless. Here’s why. People generally think if an
individual undertakes some action—walking, talking, shooting a gun, for example—that
action can only be done by someone who is conscious. Unconsciousness is generally
thought of as meaning an individual is comatose or otherwise incapable of movement, but
that is not what the law holds. In fact, when the court and counsel discussed proposed
jury instructions, the prosecutor argued there was no evidence of unconsciousness. In
doing so, he urged the fact that defendant opened her eyes when asked questions by a
responding paramedic demonstrated she was conscious. But as CALCRIM No. 626

                                              3
states, one who is unconscious “may still be capable of physical movement but may not
be aware of his or her actions or the nature of those actions.” (Italics added.) For
purposes of a defense, “‘[u]nconsciousness’ . . . need not reach the physical dimensions
commonly associated with the term (coma, inertia, incapability of locomotion or manual
action, and so on); it can exist . . . where the subject physically acts in fact but is not, at
the time, conscious of acting.” (People v. Newton, supra, 8 Cal.App.3d at p. 376, fn.
omitted.) Without informing the jury of this fact, the jurors would have no reason to
conclude defendant was not conscious during any of her actions. The conclusion is
unavoidable that jurors would fall into the same misconception the prosecutor
demonstrated; assuming any action on defendant’s part—including opening her eyes—
means she was conscious. Thus, the jury’s verdict cannot be said to have been the result
of the jury’s rejection of an unconsciousness defense. Consequently, the error was not
harmless under People v. Watson (1956) 46 Cal.2d 818. (People v. Breverman (1998) 19
Cal.4th 142, 170, & fn. 19.)
               Because the error was prejudicial under Watson, there is no need to
determine whether the failure to instruct on involuntary unconsciousness is governed by a
more stringent reversible error standard. (See People v. Newton, supra, 8 Cal.App.3d at
p. 377 [“Where evidence of involuntary unconsciousness has been produced in a
homicide prosecution, the refusal of a requested instruction on the subject, and its effect
as a complete defense if found to have existed, is prejudicial error.”]; Neder v. U.S.
(1999) 527 U.S. 1, 19 [failure to instruct on issue of materiality in a mail fraud case was
harmless where issue was not contested and evidence established the element as a matter
of law, but result would have been different if defendant contested the element and raised
evidence on the issue].)
               The trial court’s failure to instruct on unconsciousness was prejudicial
error. Without receiving an instruction on unconsciousness, the jury was presumably
unaware that one may commit an act without being conscious of the act. Consequently,

                                                4
defendant’s conviction cannot be considered an implied rejection of a complete defense
the jury had not been instructed on, especially when the instruction is contrary to what
most people believe. Accordingly, I would reverse.




                                          MOORE, J.




                                             5
