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November 30, 2010


APPEAL from the Superior Court of Riverside County.(Super.Ct.No. INF059778) James S. Hawkins, Judge. Affirmed.

The opinion of the court was delivered by: Ramirez P.J.






California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


Defendant, Michael Joseph Grodio, shot David Tarlow (Tarlow), in the back, killing him. At trial, the defense theory was that defendant took large doses of several prescription drugs, which affected his judgment, making the homicide impulsive, not premeditated. The jury convicted him of first degree murder (Pen. Code,*fn1 § 187, subd. (a)), and he was sentenced to a term of 25 years to life for the murder, plus an additional term of 25 years to life for the discharge of a firearm in the commission of the murder. (§ 12022.53, subd. (d).)

On appeal, defendant argues that (1) the admission of his post-arrest statements that were submitted to his psychiatric expert, along with other information, regarding the events leading up to the shooting was reversible error because the statements were unreliable and "may" be involuntary; and (2) the admission of Tarlow's statement of his intent to ask defendant to leave was inadmissible because Tarlow's state of mind was irrelevant. We affirm.


Prior to June 2007, defendant lived with his brother in the mobile home park where Tarlow, lived. In June 2007, defendant moved in with Tarlow. However, approximately a week or so before September 9, 2007, Tarlow informed his sister that he intended to ask defendant to leave because he felt that defendant had been going through his room.

Loretta M. lived in the mobile home across the street from defendant and Tarlow; she also cleaned for defendant and Tarlow, and occasionally took defendant to the grocery store or the pharmacy. Defendant took several prescription drugs and depended on Loretta to drive approximately 75 percent of the time.

On September 8, 2007, Loretta had spent the night with a neighbor for whom she worked, prepared meals and provided transportation, in another mobile home within the park. Shortly before 9:00 a.m. the next morning (September 9, 2007), Loretta returned to her own mobile home to get some perfume. She pulled up in front of the sidewalk and exited her vehicle. As she did so, she heard defendant call to her by her nickname, "Tater." After the second time he called to her, she looked and saw defendant between the mobile home and the vehicle that was parked in the driveway of the mobile home. Defendant had a handgun in his hands.

As Loretta approached defendant, defendant stated "I shot Dave. I think I killed him." Loretta entered the mobile home behind defendant, finding blood on the floor near the rear entrance. She asked defendant for the gun, but defendant did not give it to her. She asked defendant why he shot Tarlow and defendant explained that Tarlow was "pushing his buttons," meaning that Tarlow was looking for a fight. Although Tarlow had called 911 to report that he had been shot at approximately 8:51 a.m., Loretta obtained her cell phone from her car and called 911 from the mobile home, looking into Tarlow's room while she was still on the phone. She saw Tarlow lying on the floor on his back and a large pool of blood. The 911 dispatcher informed Loretta that law enforcement had arrived and that she should leave the mobile home.

Outside, sheriff's deputies saw Loretta followed by defendant as he came around the corner of the mobile home, carrying the handgun in his right hand and a black case in his left hand. The officers directed defendant to drop the gun twice, but defendant did not comply. Loretta turned and approached defendant, put her arm around him, asked him for the gun, and took the gun out of defendant's hands. At Corporal Morton's direction, she placed or tossed the gun on the ground. Defendant was taken into custody and patted down. The deputies took custody of the handgun, as well as a black case that defendant held in his left hand, which contained several bottles of prescription medicines, including Xanax.*fn2

During the patdown search, Deputy Martinelli found several .45-caliber bullets, a silver knife, a key chain and a Swiss Army knife in his pocket. Another live round was in the barrel of the gun. Corporal Morton entered the mobile home and found blood on the floor in the kitchen, as well as on a chair, and on the hallway carpet leading to Tarlow's bedroom. Corporal Morton found Tarlow, with a bullet wound in his back, and a weak pulse. In defendant's bedroom in the mobile home, a box of ammunition was found. The physical evidence in the mobile home led the investigating officer to conclude that Tarlow was shot in the back in the living room. Tarlow was transported to a medical center where he was pronounced dead.

Deputy Courtney Donowho also responded to the mobile home park, where he found Deputies Morton and Martinelli already there. He was asked to check or confirm a file number for the incident in the sheriff's patrol unit, where defendant was being held in the backseat. Defendant complained about the handcuffs being too tight, so Deputy Donowho had defendant step out of the car to loosen the cuffs. As the deputy adjusted the handcuffs, defendant said, "I'm a murderer, aren't I?"

Defendant was charged with murder (§ 187, subd. (a)), along with two enhancements: discharging a firearm (§ 12022.53, subd. (d)), and using a firearm (§ 12022.5, subd. (a)) in the commission of the crime. Prior to the commencement of the preliminary hearing, proceedings were suspended due to a doubt as to defendant's competence, and defendant was examined by separate mental health experts. (§ 1368.) He was found incompetent on May 2, 2008, and was committed to Patton State Hospital for treatment. On August 27, 2008, the trial court conducted a hearing on Patton State Hospital's certificate of defendant's mental competence, based on the conclusion defendant was malingering.*fn3 On January 9, 2009, based on a supplemental report indicating defendant was marginally competent to stand trial, criminal proceedings were reinstated. Defendant was subsequently held to answer on the charges.

Following trial, the jury found defendant guilty of murder in the first degree, and made true findings on both firearm enhancement allegations. Defendant was sentenced to an indeterminate sentence of 25 years to life for the first degree murder (§ 187, subd. (a)), with a consecutive term of 25 years to life for the firearm discharge enhancement. (§ 12022.53, subd. (d).) The term for the gun use enhancement (§ 12022.5, subd. (a)) was stayed. Defendant timely appealed.


1. Defendant's Statements Were Properly Admitted As Matters Considered by the Expert in Forming an Opinion.

Defendant argues that statements he made during police interrogation should have been excluded as unreliable. In the videotaped interview, defendant indicated that Tarlow told defendant to clean his dishes and bring them to the sink, which upset defendant to the point he went into his room, loaded his gun, and came back to the living room. Then defendant stated he asked Tarlow to turn up the volume of the television, but Tarlow refused so defendant showed the gun to Tarlow. Once Tarlow saw the gun, he got up and turned around to walk away, at which time defendant stated he shot Tarlow. Shortly after making these statements, defendant requested counsel, and the interview was terminated.

The prosecution did not proffer the statements into evidence, and they were not introduced as admissions. Instead, the reports that included the statements were provided to Dr. Kurland, the defense psychiatrist, who evaluated defendant and offered an opinion of how defendant's drug use, head injury, and history of a stroke affected his ability to premeditate. On cross-examination, the prosecutor inquired if the statements demonstrated goal-oriented behavior by defendant.

Defendant argues the statements should have been excluded as unreliable based on the manner in which they were used during cross-examination, also suggesting the statements were "possibly" involuntary. Defendant acknowledges that his trial counsel did not object, so he asserts that the failure to object constituted ineffective assistance of counsel. We agree the issue of admissibility has been forfeited and conclude defendant received effective assistance of counsel.

a) Forfeiture

The forfeiture doctrine is a well-established procedural principle that (with few exceptions) an appellate court will not consider claims of error could have been--but were not--raised in the trial court. (People v. Stowell (2003) 31 Cal.4th 1107, 1114.) Here, defendant did not object to the admission of his statements in the trial court and has thus forfeited that claim on appeal. (People v. Maury (2003) 30 Cal.4th 342, 387.) He did not seek an in limine ruling restricting cross-examination by the prosecutor, and it is unlikely any such application would have been given serious consideration, since an expert is always subject to cross-examination as to the basis of his or her opinion. (Evid. Code, § 721, subd. (a); People v. Ledesma (2006) 39 Cal.4th 641, 695; see also People v. Combs (2004) 34 Cal.4th 821, 862.) Unless defendant can establish that his counsel was ineffective for failing to object to the cross-examination, which came in the form of a hypothetical based on defendant's statements, the issue was not preserved.

b) Defense Counsel Provided Effective Assistance of Counsel.

To demonstrate that his right to effective assistance of counsel was violated, defendant must satisfy a two-pronged test: He must show (1) performance below an objective standard of reasonableness by his attorney, and (2) prejudice sufficient to establish a reasonable probability he would have obtained a more favorable result in the absence of counsel's error. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694 [104 S.Ct. 2052, 80 L.Ed.2d 674].) There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. (People v. Lucas (1995) 12 Cal.4th 415, 436-437.) Tactical decisions are generally not deemed reversible, and counsel's tactical decisions must be evaluated in the context of all the available facts. (Strickland v. Washington, supra, 466 U.S. at p. 690.) Aside from a handful of fundamental personal rights, defendant's counsel is the "captain of the ship" who is in charge of the case. (People v. Freeman (1994) 8 Cal.4th 450, 485.)

Defendant does not claim that his trial counsel was incompetent for presenting a diminished actuality defense, and for good reason: demonstrating that the combined effect of the high doses of pain killers may have made him agitated, more impulsive, and incapable of thinking clearly, to negate a finding of premeditation and deliberation, was a reasonable defense. Nor does defendant claim that trial counsel was incompetent for turning over the police reports to the psychiatric expert, also for good reason: failure to do so would have left his expert exposed to cross-examination on other grounds, including the ground that his opinion was based on biased or incomplete information. (See Evid. Code, § 721.) A competent defense counsel would turn over all reports in his or her possession to the expert for review. So long as the jury was properly instructed as to the limited purpose for which it could consider the statement as the basis of the expert's opinion, counsel effectively represented defendant in allowing the statements to be discussed in cross-examination. (People v. Morse (1969) 70 Cal.2d 711.)

In People v. Morse, supra, the trial court permitted the prosecutor to question a defense psychiatrist about statements made by defendant during a police interview. The California Supreme Court held that when a defendant, on the advice of counsel, submits to an examination by a psychiatrist appointed pursuant to Evidence Code section 1027, and later specifically places his mental condition into issue at the guilt trial, he can have no complaint if the psychiatrist relates statements made by the defendant as matter supportive of his expert opinion, provided the jury is instructed that the psychiatrist's testimony as to defendant's incriminating statements should not be regarded as proof of the facts disclosed but should be considered only to show information upon which the opinion is based. (People v. Morse, supra, 70 Cal.2d at pp. 725-726.)

In People v. Ledesma, supra, 39 Cal.4th 641, addressing a challenge to the lack of such a limiting instruction, the Supreme Court held that the lack of a limiting instruction did not deprive the defendant of a fair trial. (Id. at pp. 700-701.) In the present case, the trial court properly instructed the jury that the defendant's statements, as considered by the expert witnesses, could only be considered to evaluate the expert's opinion, not as proof that the information contained in the statements was true. (CALCRIM No. 360.)

It is true that any material used as the basis for an expert's opinion must be reliable, even if it is not independently admissible. (People v. Gardeley (1996) 14 Cal.4th 605, 618.) However, the purpose of providing defendant's post-arrest statements to the psychiatric expert was to permit the expert to examine all information about defendant's state of mind at or near the time of the offense, to assist the expert in rendering an opinion. In this respect, the case of People v. Hughes (2002) 27 Cal.4th 287, relied upon by defendant, is distinguishable. In that case the court limited the defense expert's testimony by prohibiting the expert from testifying that he considered defendant's statement to the defense investigator as one of the bases for his opinion concerning defendant's state of impairment. (Id. at pp. 338-339.) In that case, defendant sought to elicit the information to provide an inference that the defendant had used cocaine on the day of the killing. The statement was inconsistent with his earlier statements to police, which did not mention cocaine use that morning, and deemed unreliable. Nevertheless, the expert was permitted to give his opinion that defendant was impaired based on the history of his drug use. (Id. at p. 339.)

In this case, the challenged statements were the actual statements defendant made to police during defendant's brief post-arrest interview. The defense expert referred to defendant's demeanor in the videotaped interview, in which he appeared distressed, unhappy, and agitated to support his opinion that defendant was not thinking clearly as a result of the prescription drugs he took. In his most recent evaluation of defendant, the expert stated that when defendant denied shooting anyone, the expert confronted him with the fact he had discussed the shooting with the expert on two prior occasions.*fn4 Whether the statements were reliable or not, as an expert testifying about defendant's mental state at or near the time of the offense, the expert needed to consider all of defendant's prearrest and post-arrest conduct and statements in order to get a full picture and to render a valid opinion about the impairment of defendant's judgment.

Further, because the police interview ceased as soon as defendant invoked his right to counsel, and there is no other evidence of the circumstances of the interview or defendant's statements, there is no evidence that the statement "may have been" involuntary. Having made the tactical decision to have defendant evaluated and present a psychological defense to mitigate the degree of the crime, defense counsel was not ineffective for not attempting to restrict the cross-examination of his expert witness. Having failed to demonstrate that defense counsel's performance fell below an objective standard of reasonableness, we do not need to reach the second prong of Strickland.

2. Admission of Tarlow's Statement That He Intended to Ask Defendant to Leave Was Not Reversible Error.

Defendant claims the court erred by admitting testimony that Tarlow told his sister he intended to evict defendant, approximately a week prior to the murder, as a statement of Tarlow's intent. (Evid. Code, § 1250.) We disagree.

Evidence Code section 1250 provides, in relevant part, that, a statement of the declarant's then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when offered (1) to prove the declarant's state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action, or (2) to prove or explain acts or conduct of the declarant. (Evid. Code, § 1250, subd. (a)(1), (2).) This is known as the state of mind exception to the hearsay rule.

For purposes of the state-of-mind exception to the hearsay rule, a statement of state of mind is one that (1) reflects the declarant's mental state, and (2) is offered, among other purposes, to prove the declarant's conduct, including the declarant's future conduct in accordance with his or her expressed intent, unless the statement was made under circumstances indicating lack of trustworthiness. (Evid. Code, § 1252; People v. Griffin (2004) 33 Cal.4th 536, 578.) The elements essential to admissibility are that the declaration must tend to prove the declarant's intention at the time it was made; it must have been made under circumstances which naturally give verity to the utterance; it must be relevant to an issue in the case. (People v. Majors (1998) 18 Cal.4th 385, 404, quoting People v. Alcalde (1944) 24 Cal.2d 177, 187.)

Defendant asserts the statement was irrelevant absent proof defendant knew of Tarlow's intent to evict him. There is no authority for this position. The statement reflected Tarlow's mental state of frustration with the defendant, and was relevant because the logical inference is that he carried out that intent, which was relevant to defendant's guilt. The fact the prosecution did not prove Tarlow actually carried out his expressed intent is irrelevant. In People v. Alcalde, supra, the victim made a statement that she was planning to go out with a man named Frank, the defendant's nickname, on the night she was killed. The California Supreme Court concluded the statement was admissible because it was a natural utterance made under circumstances which demonstrated trustworthiness. Further, her statement of intent and the logical inference to be drawn from the statement, that is, that she was with the defendant that night, were held to be relevant to the issue of guilt. (People v. Alcalde, supra, 24 Cal.2d at pp. 187-188.)

The statement in the present case served a similar purpose: Tarlow's statement that he intended to ask defendant to leave the mobile home led to the logical inference that he did so, which was relevant to the issue of guilt since it explained defendant's statement to Loretta that Tarlow "pushed his buttons," and thus established a motive for the shooting. The statement was admissible.

Defendant argues that the admission of the statement was prejudicial because it not only showed defendant was violating Tarlow's privacy by going through his property, it showed his motive to kill Tarlow preceded the shooting by a significant period of time. This is only partially correct. The statement attributed that Tarlow did not indicate defendant actually went through Tarlow's things; instead, the statement was that Tarlow felt defendant was going through his things. In this respect, the statement again reflected Tarlow's state of mind and was admissible.

As for prejudice inherent in the statement's demonstration of a motive, all evidence which tends to prove guilt is prejudicial; the stronger the evidence, the more prejudicial. (See People v. Gionis (1995) 9 Cal.4th 1196, 1214 [discussing Evid. Code, § 352].) This is the prejudice that naturally flows from relevant, probative evidence. (See People v. Escudero (2010) 183 Cal.App.4th 302, 312.) Given the quantum of independent evidence that defendant fired the shot that killed Tarlow, and the sequence of events as revealed by the circumstantial evidence of the ammunition in defendant's bedroom, as well as the bullets in defendant's pocket, and his spontaneous statement that "Dave pushed my buttons," the admission of Tarlow's statement to his sister the previous week did not result in prejudice.


The judgment is affirmed.



We concur:

s/ Hollenhorst J.

s/ McKinster J.

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