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Randy James Geren v. Matthew Cate

January 31, 2012

RANDY JAMES GEREN, PETITIONER,
v.
MATTHEW CATE, SECRETARY, CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, RESPONDENT.



The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge

MEMORANDUM DECISION

Randy James Geren, a state prisoner, filed a Petition for Habeas Corpus under 28 U.S.C. § 2254. Geren is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the Corcoran State Prison. Respondent has answered, and Geren has replied.

I. BACKGROUND/PRIOR PROCEEDINGS

In January 2001 Geren was convicted following a jury trial in the Butte County Superior Court of Murder in the First Degree, Cal. Penal Code § 187, with a finding of true that Geren had used a deadly weapon, Cal. Penal Code § 12022(b). After denying Geren's motion for a new trial, the trial court sentenced Geren to an indeterminate prison term of twenty-six years to life.

The California Court of Appeal, Third Appellate District, affirmed Geren's conviction and sentence in an unpublished, reasoned decision,*fn1 and the California Supreme Court denied review on April 14, 2004. Geren, appearing pro se, timely filed his Petition for relief in this Court on May 19, 2005.

After the Petition was filed, counsel was appointed to represent Geren. Counsel filed an Amended Petition on Geren's behalf and sought a stay and abeyance to exhaust Geren's state- court remedies based upon new evidence that would establish that Geren suffered prejudice as a result of his trial counsel's failure to investigate the effect of Geren's multiple neurological deficits on Geren's ability to formulate an intent to commit murder. The matter was stayed while Geren exhausted his unexhausted claim in the state courts. Geren filed a petition for habeas relief in the California Supreme Court, which was remanded to the Butte County Superior Court for an evidentiary hearing. At the conclusion of the evidentiary hearing,*fn2 the Butte County Superior Court denied Geren relief in an unreported, reasoned decision. The California Supreme Court summarily denied Geren's subsequent petition for habeas relief without opinion or citation to authority on July 13, 2011. This Court lifted the stay and directed the parties to submit supplemental briefing addressing the intervening decisions of the Supreme Court in Knowles v. Mirzayance*fn3 and Harrington v. Richter.*fn4 The parties have complied with that Order.

The facts underlying the crime of which Geren was convicted are well known to the parties, succinctly set forth in the opinion of the California Court of Appeal, and are not relevant to the issue before this Court. Consequently, they are not repeated here.

II. ISSUES PRESENTED/DEFENSES

In his First Amended Petition, Geren contends that, because trial counsel failed to obtain a neurological examination of Geren, he was denied the effective assistance of counsel at trial. In his Supplemental Brief, Geren, contends that he was denied a fair hearing in the Butte County Superior Court because during the period the evidentiary hearing was pending the court became biased against him due to the costs being incurred. Respondent asserts no affirmative defense.*fn5

III. STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn6 The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."*fn7 The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts.*fn8

Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn9 When a claim falls under the "unreasonable application" prong, a state court's application of Supreme Court precedent must be "objectively unreasonable," not just "incorrect or erroneous."*fn10 The Supreme Court has made clear that the objectively unreasonable standard is "a substantially higher threshold" than simply believing that the state-court determination was incorrect.*fn11 "[A]bsent a specific constitutional violation, federal habeas corpus review of trial error is limited to whether the error 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"*fn12 In a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state court criminal trial is whether the error had a substantial and injurious effect or influence in determining the outcome.*fn13 Because state court judgments of conviction and sentence carry a presumption of finality and legality, the petitioner has the burden of showing by a preponderance of the evidence that he or she merits habeas relief.*fn14

The Supreme Court recently underscored the magnitude of the deference required:

As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. Cf. Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (discussing AEDPA's "modified res judicata rule" under § 2244). It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no farther. Section 2254(d) reflects the view that habeas corpus is a "guard against extreme malfunctions in the state criminal justice systems," not a substitute for ordinary error correction through appeal. Jackson v. Virginia, 443 U.S. 307, 332, n.5, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment). As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.*fn15

In applying this standard, this Court reviews the "last reasoned decision" by the state court.*fn16 State appellate court decisions that summarily affirm a lower court's opinion without explanation are presumed to have adopted the reasoning of the lower court.*fn17 This Court gives the presumed decision of the state court the same AEDPA deference that it would give a reasoned decision of the state court.*fn18

Under California's unique habeas procedure, a prisoner who is denied habeas relief in the superior court files a new original petition for relief in the court of appeal. If denied relief by the court of appeal, the defendant has the option of either filing a new original petition for habeas relief or a petition for review of the court of appeal's denial in the California Supreme Court.*fn19

This is considered as the functional equivalent of the appeal process.*fn20 Under AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence.*fn21 This presumption applies to state-trial courts and appellate courts alike.*fn22

IV. DISCUSSION

Geren's trial counsel did not obtain a neurological examination of Geren and withdrew the defense that at the time of the killing Geren had "blacked out" due to a mental defect. Geren argues this action denied him the effective assistance of counsel. Geren initially raised this issue in his motion for a new trial in the Butte County Superior Court and on direct appeal. The Butte County Superior Court rejected Geren's arguments and the California Court of Appeal, after extensively reviewing the record, affirmed, stating the following:

I. Effective Assistance of Counsel [Geren] contends that, notwithstanding the trial court's denial of [Geren's] motion for a new trial, [Geren] was not afforded effective assistance of counsel at trial. We disagree.

A criminal defendant has the right to the reasonably competent assistance of an attorney acting as his diligent conscientious advocate. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; Strickland v. Washington (1984) 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; People v. Ledesma (1987) 43 Cal.3d 171, 215, 233 Cal.Rptr. 404, 729 P.2d 839.) A claim of ineffective assistance of counsel may be made even when counsel is retained rather than appointed, but "the fact that counsel is retained remains an 'important' consideration in measuring the effectiveness of counsel's representation." (People v. Frierson (1979) 25 Cal.3d 142, 161, 162, 158 Cal.Rptr. 281, 599 P.2d 587.)

When a claim for ineffective assistance of counsel is made in a motion for new trial and rejected by the trial court, the appellate court gives great weight to the trial court's decision and defers to the trial court's findings of fact. (People v. Wallin (1981) 124 Cal.App.3d 479, 483, 177 Cal.Rptr. 303.) Absent a showing of clear and unmistakable abuse of discretion, we will not disturb the trial court's decision. (Ibid.)

A. The Motion for New Trial

After [Geren's] conviction, the trial court appointed new counsel to represent [Geren] in a motion for new trial, which claimed retained counsel Grady Davis's failure to present evidence of [Geren's] brain damage constituted ineffective assistance of counsel.

At the hearing on the motion for new trial, clinical neuropsychologist Dr. John Wicks testified for the defense. He said, based upon a review of medical records and administration of psychological tests on [Geren] after trial, that [Geren] had a history of seizures, including full-blown grand mal seizures, and rage-like reactions, dating back 20 years, which led to surgery in 1993 to remove a tumor or cyst from his right temporal lobe. Dr. Wicks testified [Geren] still showed signs of "mild neuropsychological dysfunction" indicating a "strong possibility that he could be suffering from complex partial seizure or temporal-lobe seizure disorders." Dr. Wicks said complex partial seizures do not result in a loss of consciousness, but the person having them is "not really there," and has no recollection of his actions. Further evaluation would be needed to determine if [Geren] has temporal lobe seizure disorder that could have triggered a complex partial seizure. Dr. Wicks opined that tests such as brain electrical activity mapping (BEAM) scan and a positron-emission tomography (PET) scan should have been conducted during preparation of the defense.

On cross-examination, Dr. Wicks acknowledged that all records in [Geren's] medical files indicated his 1993 brain surgery was successful and he has not suffered any seizures since the surgery. Dr. Wicks was not asked to and did not evaluate [Geren's] conduct at the time of the stabbing. The tests conducted by Dr. Wicks revealed [Geren] did not suffer from severe anxiety, depression, mania, schizophrenic thinking or delusions.

In the hearing on his motion for a new trial, [Geren] testified he was originally represented by appointed counsel, Denny Forland, but switched to retained counsel Grady Davis, for a fee that was to include everything. [Geren] testified he told Davis about his brain injury and surgery, and that his wife hit him on the head and he may have blacked out during the stabbing. Davis said he would have a psychiatrist or psychologist as an expert witness. [Geren] testified he was not evaluated, except in connection with the determination of his competency to stand trial, for which he was interviewed by one doctor (who spent no more than five minutes with him) and by a "Mental Health" person who was not a psychologist or psychiatrist.

[Geren] testified that before the stabbing, he spoke on the telephone to his older son, who was calling about spending the night at a friend's house. [Geren] also spoke with the friend's mother to make sure his son was welcome. [Geren] then planned to clear some roots from ditches on his property. He placed his hunting knife, within its sheath, in his pocket and walked toward his son's bedroom to get a raincoat. His wife blocked his path, reached across him, grabbed the knife by the handle, pulled it out of his pocket, and thrust it at him. He jumped back, grabbed her hand, and struggled with her for control of the knife. [Geren] testified that during the struggle, "I completely lost it," and then, "I completely blacked out." He believed his wife hit him in the head, "because when I came to after that point, I was sitting on the ground and she was laying across my lap facing me."

[Geren] said that "just prior" to his attempt to go clear the dishes, his wife hit him on the head when he took the telephone away from her (because he was afraid she would call the police and their children would again be placed in foster care). She had been trying to provoke an argument since the day before the stabbing. [Geren] said he told all this to his retained counsel before trial and expressed his fear that his wife was going to kill him.

A transcript of [Geren's] post-arrest statement, in which he indicated to peace officers that he did not remember stabbing his wife, was submitted to the trial court in connection with the motion for new trial.

Retained counsel Grady Davis testified he obtained extensive medical records of [Geren]. Davis was aware of [Geren's] past seizures and brain surgery. He was also aware [Geren] was still on seizure medication but was not taking the medication at the time of the killing. He considered having [Geren] evaluated by a psychologist or psychiatrist but felt it unnecessary after talking to [Geren] and [Geren's] doctors and reviewing the records. Davis said he believed that, in order to present a credible mental defense that [Geren] suffered a seizure at the time of the stabbing, [Geren] would have to testify. Davis was concerned such a defense would have been inconsistent with [Geren's] statements to the 911 dispatcher (acknowledging awareness of stabbing his wife) and [Geren's] statements to detectives after his arrest (in which he said his wife attacked him as he came in through the back door, and he vaguely remembered having the knife, and the next thing he knew she was cut). Accordingly, after the prosecution rested its case in chief without introducing [Geren's] post-arrest statements, Davis decided to keep [Geren] off the witness stand and argue voluntary manslaughter based on the 911 tape and statements of the child who said his mother had the knife and then his parents struggled over the knife.

Davis testified he saw problems with a mental defense. [Geren] was on medication for anger control and depression, not seizures, and one of [Geren's] doctors-Dr. Randall Caviness (with concurrence of two other doctors)-said it would be difficult to demonstrate any effects from the surgery which had cured the seizure disorder. Additionally, Davis felt [Geren's] doctors did not view him favorably because he often failed to take his medication because it diminished his sexual pleasure. Counsel also felt, based on his 20 years practicing criminal law, that [Geren] would not be a sympathetic witness, partly because he was argumentative. Counsel was aware of other witnesses who were "eager" to testify as rebuttal witnesses against [Geren] if he took the stand. Davis said he made a tactical decision on how best to defend [Geren].

Davis said that when he referred to the brain surgery in opening statement, he thought it might come out in evidence and would garner sympathy for [Geren], regardless of whether a mental defense was presented. Davis said he engaged in some "gamesmanship" and tried to distract the prosecution by suggesting he was planning a mental defense.

Defense investigator James Pihl testified he interviewed two of [Geren's] doctors before trial and concluded they would not be helpful to the defense. Dr. Caviness, who treated [Geren] in late 1998, saw no reason to believe [Geren] had blacked out during the incident. Pihl also spoke to [Geren's] current psychiatrist, Dr. Tin Shain, who could not substantiate or back up a theory that [Geren] suffered a blackout before the stabbing. Pihl also spoke with Dr. John Wilson, who was used as an expert witness by retained counsel in a different case, but Wilson offered no support for a blackout defense. Pihl passed all this information on to retained counsel before trial.

In April 2002, the trial court denied [Geren's] motion for new trial, concluding retained counsel was not incompetent for failing to raise a mental defense. The trial court said that, even if some evidence existed to support such a defense, retained counsel believed [Geren] himself would have had to testify because the prosecution's case contained no evidence of a blackout. If [Geren] had testified, he would have been impeached by the inconsistent evidence of his statements to the 911 dispatcher and his post-arrest statements to detectives. The main issue would have been [Geren's] credibility. The trial court concluded retained counsel made an informed tactical decision not to call [Geren] as a witness and to pursue instead a defense of heat of passion and/or imperfect self-defense, which found some support in the 911 tape and the child witness's statements to investigators.

B. Analysis

A claim of ineffective assistance of counsel calls for [Geren] to demonstrate (1) counsel's performance was deficient; and (2) prejudice resulted from the deficient performance. (Strickland v. Washington, supra, 466 U.S. at pp. 687, 693; People v. Ledesma, supra, 43 Cal.3d at pp. 216-217, 233 Cal.Rptr. 404, 729 P.2d 839.) Relief is granted only if both questions are answered affirmatively. (Ibid.) To establish deficiency of performance, [Geren] must show trial counsel "failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates." (People v. Pope (1979) 23 Cal.3d 412, 425, 152 Cal.Rptr. 732, 590 P.2d 859.) If the record contains an explanation for counsel's conduct, the court must determine whether the record demonstrates that counsel was reasonably competent and acting as a conscientious, diligent advocate. (Ibid.) A criminal conviction will be reversed on grounds of ineffective assistance of counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission. (People v. Zapien (1993) 4 Cal.4th 929, 980, 17 Cal.Rptr.2d 122, 846 P.2d 704.)

"In order to render reasonably competent assistance, a criminal defense attorney should investigate carefully the possible grounds for seeking the suppression of incriminating evidence, explore the factual bases for defenses that may be available to the defendant, and otherwise pursue diligently those leads indicating the existence of evidence favorable to the defense. [Citations.]" (In re Neely (1993) 6 Cal.4th 901, 919, 26 Cal.Rptr.2d 203, 864 P.2d 474.)

[Geren] argues his case "cried out for a neuropsychological examination." [Geren] says the reason Davis did not pursue such an examination was because Davis did not want to pay for it out of Davis's own retainer (which consisted of $5,000 cash plus equity in [Geren's] property). [Geren] also claims Davis made inconsistent representations because (1) in the hearing on the motion for new trial Davis said he had no reason to think [Geren] had any mental defect, yet (2) Davis asked the trial court for a section 1368 evaluation, citing in part [Geren's] brain surgery, medications, current headaches, dizziness, and recurrence of seizures.

However, [Geren] fails to show any abuse of discretion in the trial court's determination of these issues. Davis testified the retainer he received from [Geren] included all costs, including expenses for experts. Davis also said there was "always a cost factor analysis that goes into any type of activity that you're performing as a lawyer," but "if I thought it was appropriate, I very well might have gone, come to this Court and asked for funds. But . . . there's no way I would have neglected to investigate or seek expert help simply because of money."

Moreover, as we have recounted, the evidence adduced at the hearing on the motion for new trial showed Davis was not required to obtain a neuropsychological examination. Nothing in [Geren's] medical records indicated [Geren] suffered seizures after the surgery in 1993. [Geren's] own doctors offered no help with a defense based on mental defect. Two mental health experts concluded [Geren] was competent to stand trial in November 2000 (nine months after the February 2000 killing). Although there was evidence that [Geren] had anger management problems even after the surgery, and had been diagnosed with a personality disorder in 1999, there was nothing suggesting a recurrence of seizures to support [Geren's] "blackout" claim.

Moreover, a claim that [Geren] blacked out during the stabbing would have been inconsistent with [Geren's] statements during the 911 telephone call immediately after the stabbing, in which [Geren] reported what had happened (that he grabbed the knife from his wife and used it on her). In the 911 call, he did not profess ignorance or confusion as to what happened, nor did he claim he blacked out.

There is nothing inconsistent in Davis's decision not to present a mental defect defense after requesting a section 1368 evaluation in October 2000. [Geren] says Davis told the court that [Geren] was having seizures. However, that does not mean [Geren] was actually having seizures (as opposed to merely reporting seizures). Davis did not say he witnessed any seizures. He merely indicated he observed [Geren] having difficulty thinking and comprehending.

Because nothing in [Geren's] medical history or recent examinations indicated he still suffered from seizures at the time he stabbed his wife, Davis had no reason to order a neurological evaluation to try to show [Geren] was unconscious at the time of the stabbing. [Geren] suggests a neurological examination was critical to the manslaughter theory presented at trial, because he weighed twice as much as his wife. He cites authority concerning admissibility of evidence of mental defect. (§ 28 [evidence of mental defect is admissible solely on the issue of whether or not the accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought]; People v. Coddington (2000) 23 Cal.4th 529, 582-583, 97 Cal.Rptr.2d 528, 2 P.3d 1081, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, 108 Cal.Rptr.2d 409, 25 P.3d 618.) However, [Geren] fails to tie this argument to a showing that defense counsel's failure to obtain a neurological examination resulted in ineffective assistance of counsel.

[Geren] cites evidence of his 1993 brain surgery, his subsequent sleep apnea and "rage attacks," and a 1999 diagnosis of organic personality disorder (in connection with a Department of Social Services evaluation of a disability application). [Geren] says that, in addition to this history of seizure disorders, [Geren] stated after his arrest that he had blacked out. However, [Geren's] medical records do not reflect seizures after the brain surgery.

[Geren] cites People v. Beeler (1995) 9 Cal.4th 953, 39 Cal.Rptr.2d 607, 891 P.2d 153 (Beeler ), as support for his argument the pretrial investigation should have included a neurological examination. However, Beeler, supra, 9 Cal.4th 953, 39 Cal.Rptr.2d 607, 891 P.2d 153, held the record did not support the defendant's contention that trial evidence should have caused his attorney to seek neurological testing, even though there was evidence of a long history of mental health problems and two psychologists testified the defendant suffered from disassociation (memory loss or unawareness of actions). (Id. at pp. 1007-1008, 39 Cal.Rptr.2d 607, 891 P.2d 153.) The Supreme Court said nothing in the record supported a conclusion that evidence of memory loss and disassociation should have alerted counsel to a need for neurological testing for organic brain damage, nor did the defendant's own psychologists testify such testing was needed. (Ibid.)

In his reply brief, [Geren] argues Beeler, supra, 9 Cal.4th 953, 39 Cal.Rptr.2d 607, 891 P.2d 153, is distinguishable, because here there was additional evidence, in that Davis was aware [Geren] told the detectives that he had blacked out. However, this additional evidence did not compel counsel to obtain a neuropsychological evaluation.

That two experts concluded [Geren] was competent to stand trial further supports the People's position. In re Scott (2003) 29 Cal.4th 783, 129 Cal.Rptr.2d 605, 61 P.3d 402 (Scott ), cited section 1368 reports as relevant to the question whether defense counsel should have investigated and presented a mental defense at trial. (Id. at p. 825.) Scott concluded that, even if counsel should have investigated further, there was no prejudice in the failure to do so. (Ibid.)

[Geren] here points out Scott, supra, 29 Cal.4th 783, 129 Cal.Rptr.2d 605, 61 P.3d 402, is distinguishable because there the section 1368 evaluation was performed a mere two months after the crime. (Id. at p. 825, 129 Cal.Rptr.2d 605, 61 P.3d 402.) Here, there was a nine month lapse. We do not consider the difference significant.

[Geren] says Davis admitted his failure to obtain a neuropsychological evaluation amounted to abandonment of a potential defense. However, Davis said he did not think it was a potentially meritorious defense. Moreover, Davis noted the risk of putting [Geren] on the stand, which he believed would be necessary for a mental defect defense. People v. Jackson (1980) 28 Cal.3d 264, 168 Cal.Rptr. 603, 618 P.2d 149 (disapproved on other grounds in People v. Cromer (2001) 24 Cal.4th 889, 901, 103 Cal.Rptr.2d 23, 15 P.3d 243), said counsel was not unreasonable for failing to pursue a diminished capacity defense where, among other reasons, counsel concluded the defense would have required testimony from the defendant personally, exposing him to intense and perhaps damaging cross-examination and would have provoked a negative reaction from the jurors. (People v. Jackson, supra, 28 Cal.3d at p. 290, 168 Cal.Rptr. 603, 618 P.2d 149.)

[Geren] argues Davis's comments at the start of trial show he was expecting to call [Geren] as a witness. However, assuming that to be the case, it does not undercut Davis's stated decision not to subject [Geren] to cross-examination on a questionable defense that would have been inconsistent with [Geren's] own statements to the 911 dispatcher.

[Geren] cites People v. Frierson, supra, 25 Cal.3d 142, 158 Cal.Rptr. 281, 599 P.2d 587 (Frierson), as holding the failure to take reasonable investigative measures by obtaining a neuropsychological examination constituted ineffective assistance of counsel. However, in Frierson, two witnesses testified that the defendant had taken Quaalude and angel dust and appeared "'spaced out'" on the day of the murder. (Id. at p. 159, 158 Cal.Rptr. 281, 599 P.2d 587.) Although defense counsel raised a diminished capacity defense, he failed to arrange for any medical experts to testify in support of that theory. (Id. at pp. 159, 163-164, 158 Cal.Rptr. 281, 599 P.2d 587.) The Supreme Court held counsel rendered ineffective assistance but said: "We should not be understood as requiring that trial counsel must seek psychiatric or expert advice in every case wherein drug intoxication is a possible defense. Yet in a capital case, where diminished capacity appears to be the sole potentially meritorious defense, and counsel has in fact elected to present such a defense at trial, counsel must be expected to take those reasonable measures to investigate the factual framework underlying the defense preliminary to the exercise of an informed choice among the available tactical options, if any. In the present case, we need not speculate as to the likely prejudicial effect of counsel's omissions, for counsel's failure to take reasonable investigate measures actually resulted in the presentation to the jury of an incomplete, undeveloped diminished capacity defense. We conclude that defendant was thereby deprived of his right to effective trial counsel." (Id. at p. 164, 158 Cal.Rptr. 281, 599 P.2d 587.)

Here, in contrast, Davis did not offer any evidence supporting a blackout defense because he made an informed tactical decision not to present such a defense. Instead, he put forward an alternative defense that was more consistent with the evidence and did not require [Geren] to testify. Thus, Frierson, supra, 25 Cal.3d 142, 158 Cal.Rptr. 281, 599 P.2d 587, does not help [Geren] in this case.

[Geren] complains Davis's investigator did not contact [Geren's] treating doctors until a week before trial. However, he fails to show how this provides a basis for reversal of the judgment.

[Geren] in his reply brief argues Davis did not make an informed decision not to present a blackout defense, because according to [Geren], "It was Davis' position that he did not even recall from the post arrest interview anything about a blackout." However, the ...


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