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People v. Cervantes

California Court of Appeals, First District, Fourth Division

March 9, 2017

THE PEOPLE, Plaintiff and Respondent,
ALEXANDER CERVANTES, Defendant and Appellant.


         Solano County No. FCR281334 Superior Court Hon. Harry S. Kinnicutt Trial Judge

          Arnold & Porter, Peter Obstler, Ginamarie Caya for Defendant and Appellant.

          Kamala D. Harris, Attorney General, Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Eric D. Share, Supervising Deputy Attorney General, Rene A. Chacon, Supervising Deputy Attorney General, Joan Killeen, Deputy Attorney General for Plaintiff and Respondent.

          STREETER, J.

         Alexander Cervantes was 14 years old when he attacked a 13-year-old girl and her 20-month-old brother, who were the younger siblings of one of his friends. After breaking into their home in the middle of the night, he stabbed them repeatedly as they slept, raped and sodomized the girl, forced her to orally copulate him, and ultimately passed out during the attack. He had been drinking heavily that evening and his defense rested on voluntary intoxication to negate specific intent. He was convicted of 15 charges, including various sex offenses, first-degree burglary, and two counts each of attempted murder, torture, and aggravated mayhem. He received a prison sentence of 50 years to life under the one-strike law (Pen. Code, [1] § 667.61), a consecutive 11-year determinate term for one attempted murder (§§ 187, 664), plus a consecutive life term for the other attempted murder.

         We divide our discussion into three parts. Only an overview of the first part shall be published, but the remaining two parts are certified for publication in their entirety

         First, Cervantes argues that the representation he received was so far below the minimum threshold of constitutionally effective assistance of counsel as to amount to no defense at all. Pointing to dozens of shortcomings-beginning with an incomplete investigation of his mental state, which he says guaranteed his counsel either had no basis for strategic choices she made or simply failed to recognize choices she should have made-he asks that we reverse outright, and remand for a new trial. While we reject that argument, we agree there were a number of serious deficiencies in counsel's performance, enough to leave us without confidence in the outcome of the trial on most of the specific intent crimes. We therefore reverse on eight specific intent counts, while affirming as to the remaining seven, including the convictions for burglary and all of the general intent crimes (four of the six sex offenses, and two counts of assault with a deadly weapon).

         Second, our conclusion that we must reverse and remand for retrial on eight of 15 counts presents some novel issues under recently-passed Proposition 57, the Public Safety and Rehabilitation Act of 2016 (Prop 57). Cervantes argues Prop 57 requires that the case be remanded for a “fitness hearing” to the juvenile court, which he contends has “exclusive jurisdiction” over any trial of the offenses charged in this case until and unless it determines that the case should be transferred to adult criminal court, and further, that a remand for retrial on any of the counts of which he was convicted requires vacatur of all the convictions and retrial of all charges. He argues that Prop 57 is retroactive, but that this result is mandated even applying Prop 57 prospectively to any proceedings on remand after a partial reversal. We do not agree that Prop 57 is retroactive. Nor do we agree that a partial reversal requires that all convictions must be vacated. But we do agree that Prop 57 requires a remand to the juvenile court for a “fitness hearing, ” and that the outcome of that hearing will determine which department of the Superior Court-adult criminal court, or juvenile court-will handle any retrial on the reversed counts and sentencing.

         Third, Cervantes argues that the sentence imposed on him is the functional equivalent of life without possibility of parole and therefore violates the Eighth Amendment under Graham v. Florida (2010) 560 U.S. 48 (Graham) and People v. Caballero (2012) 55 Cal.4th 262, 268 (Caballero). Since the sentencing choices made on the convictions we affirm, even without conviction on the counts we reverse, could produce another indeterminate life sentence with a lengthy minimum term, this Eighth Amendment issue will be relevant to the proceedings on remand whether Cervantes's case is handled in adult criminal court or stays in juvenile court. Thus, we address it and conclude that a sentence requiring Cervantes to serve at least 66 years in prison before he would first become eligible for parole, is constitutionally infirm. Because that term exceeds his life expectancy, it is the functional equivalent of life without parole and violates the Eighth Amendment under Graham, at p. 74 and Caballero, at p. 268. Where, exactly, the constitutional line lies below the 66 years to life imposed in this case has yet to be addressed by our Supreme Court, although we note that some guidance on the issue will likely be forthcoming in a case now pending before it. In the meantime, the Prop 57 “fitness hearing” we order today will rectify any constitutional concerns about the length of whatever term of confinement is imposed on Cervantes for the convictions we affirm here, as well as for any other offenses that may be tried on remand.


         A. Facts Disclosed at Trial

         1. Prosecution's Case

         On the evening of December 11, 2010, Cervantes attended a party, where witnesses saw him drinking from 6:00 p.m. to 9:00 p.m. One of the partygoers described him as “really drunk” at 10:20 p.m.

         At approximately 1:30 or 2:00 a.m. on December 12, 2010, Cervantes entered the Vacaville home of his sometime friend, Gabriel T. (Gabriel).[2] He carried a steak knife he had brought from home and had a condom with him. Gabriel was not at home because he was in juvenile hall. The only occupants were Gabriel's younger sister, 13-year-old A.P., and their 20-month-old brother, I.A. A.P. was babysitting I.A. while their mother and another sister were out of the house.

         As the evening progressed, A.P. and I.A. fell asleep on their mother's bed. A.P. awoke to the sensation of a sharp pain in her back like someone was punching her, and she saw blood underneath her on the bed. Looking in the mirror, she saw someone else in the room. Turning, she recognized Cervantes as a friend of her older brother's. A.P. testified he was wearing black gloves and a black jacket.[3] She asked Cervantes why he was there. “He said that it was revenge for my brother, against Richard-something with an R, ” or “revenge for [her] brother for snitching on... Richard....” A.P. did not know what he was talking about. As A.P. tried to unlock her cell phone to call 911, she fell off the bed. While she was on the floor, Cervantes stabbed her repeatedly in her head, back, and shoulders. A.P. suffered defensive wounds on her wrists and elbow when she tried to shield her head. She begged Cervantes to stop and eventually he did. After Cervantes stopped stabbing her, A.P. heard her baby brother “squeal, ” but she could not move to help him. Then the screaming stopped.

         Cervantes came back over to A.P. and “started getting into [her] pants.” He put his hand down the back of her pants and “was feeling on [her] butt.” Cervantes told A.P. to get on the bed and she complied out of fear. Cervantes got on top of her and put his penis in her vagina. After a couple of minutes, he told A.P. to moan and call him “daddy.” When A.P. did not comply, Cervantes threatened to kill her brother, by which A.P. thought he meant Gabriel. A.P. complied with Cervantes's demands. Cervantes “finally stopped” and told her to “turn around.” A.P. rolled onto her stomach, and Cervantes sodomized her. Cervantes “finally stopped, ” then told A.P. she “was going to suck his dick.” Cervantes “kind of put his penis up into [her] mouth” and “pulled [her] head down.” When A.P. saw Cervantes starting to doze off, she tried to get away, but he grabbed her hair and “yanked [her] back down.” Eventually, Cervantes fell asleep.

         A.P. grabbed her phone and her little brother and quickly got out of the room. Entering the kitchen, she noticed the door to the garage was standing open, as was the door leading from the garage to the outside of the house. Both doors had been closed earlier and the external door was normally kept locked. Once outside, A.P. called 911 and went across the street to a neighbor's house.

         Shortly after 4:00 a.m. a SWAT team responded to A.P.'s home, eventually entered, and arrested Cervantes in the master bedroom. He was naked and smeared with blood. A large bloodstain and what appeared to be urine were found on the sheets.

         When the crime scene was processed three empty beer cans were found: one was on the couch, one by the sink in the kitchen, and the third on the driveway in front of the garage. Cervantes's DNA was found on two of the beer cans. The parties stipulated that both victims' blood was found on a knife retrieved from the bedroom where the children were attacked, and the investigation showed the knife matched another steak knife found at Cervantes's mother's house. The parties also stipulated that (1) DNA testing could not exclude Cervantes as the source of semen found on anal swabs taken from A.P., and (2) A.P.'s dried blood was found on Cervantes at the time of his arrest.

         After the attack, the children were taken to the hospital. A.P. had been stabbed a total of 42 times, and I.A. had been stabbed 13 times. A.P. had a collapsed lung and a lacerated liver and spleen. I.A. had four fractured ribs and internal injuries. A.P. was hospitalized for three days, and both children were scarred by the knife wounds they suffered that night.

         2. The Charges, the Defense Case, and the Verdicts

         Cervantes was charged as an adult by information filed on March 29, 2011. (Welf. & Inst. Code, former §§ 602, subd. (b)(2), 707, subd. (d)(2)(A).) An amended information filed on September 17, 2012 charged Cervantes with two counts of attempted willful, deliberate, and premeditated murder (§§ 664, 187) (counts 1, 2), first degree burglary (§ 459) (count 3), two counts of torture (§ 206) (counts 4, 5), two counts of aggravated mayhem (§ 205) (counts 6, 7), two counts of assault with a deadly weapon (§ 245, subd. (a)(1)) (counts 8, 9), assault with intent to commit rape, sodomy, or oral copulation on a person under 18 years (§ 220, subd. (a)(2)) (count 10), forcible rape of a child under 14 years (§§ 261, subd. (a)(2), 264, subd. (c)(1)) (count 11), forcible sodomy of a child under 14 years (§ 286, subd. (c)(2)(B)) (count 12), two counts of forcible oral copulation of a child under 14 years (§ 288a, subd. (c)(2)(B)) (counts 13, 14), and forcible lewd act on a child (§ 288, subd. (b)(1)) (count 15). The information further alleged as to counts 1 through 7 and 10 through 15 that Cervantes personally used a deadly and dangerous weapon, a knife (former § 12022, subd. (b)(1)); as to counts 1 through 3 and 6 through 15 that Cervantes personally inflicted great bodily injury (former § 12022.7, subd. (a)); and as to counts 10 through 15 that Cervantes inflicted great bodily injury (§ 12022.8). The information included allegations as to counts 11 through 15 under section 667.61, known as the “one-strike” law, which calls for life sentences, including mandatory minimums, for individuals convicted of certain sex offenses in particularly blameworthy circumstances. The one-strike allegations against Cervantes included that the sex crimes were committed during a first-degree burglary (§ 667.61, subds. (d)(4), (e)(2)), that Cervantes also committed aggravated mayhem against and tortured A.P. (§ 667.61, subd. (d)(3)), personally inflicted great bodily injury on her (§ 667.61, subd. (d)(6)), personally used a dangerous or deadly weapon (§ 667.61, subd. (e)(3)), and committed the crimes against a child under age 14 (§ 667.61, subds. (d)(7), (j)(1), (j)(2)).

         Trial was held in mid-September 2012. Building on the testimony that Cervantes had been drinking during the evening before the attacks, defense counsel's strategy was to defend against all of the crimes requiring specific intent based on voluntary intoxication. The parties stipulated that Cervantes's blood alcohol level at 8:57 a.m. on December 12, 2010 was 0.12 percent. A forensic toxicologist, Jeffery Zehnder, testified for the defense that Cervantes's blood alcohol level could have been as high as.25 percent at the time of the crimes. Zehnder testified about increasing levels of impairment that occur with increasing levels of blood alcohol. At.12 percent, “ability to do certain things, like speak” would be impaired, and at.15 percent there would be not only “slurred speech, ” but also “impaired information processing in the brain.” Zehnder also testified that alcohol reduces inhibitions and can cause an individual to behave and speak recklessly and inappropriately, and a.20 percent blood alcohol level could cause severe impairment, memory loss, and black-outs.

         Defense counsel argued to the jury that Cervantes was so intoxicated that he never formed the specific intent to kill and never premeditated or deliberated, and thus could not be convicted of attempted murder. She also argued, due to his inebriated state, Cervantes had not formed the intent required for burglary, torture or the other specific intent crimes.

         On September 21, 2012, the jury found Cervantes guilty of all the substantive offenses, many of the enhancements, and found true some but not all of the one-strike allegations.[4] With respect to all the sex crimes, it found he personally used a deadly weapon and committed the five alleged as one-strike offenses against a child under 14 in the course of a first-degree burglary (§ 667.61, subds. (d)(4), (e)(2), (e)(3), (j)(1), (j)(2)), but found the infliction of great bodily injury, torture and aggravated mayhem one-strike allegations not true. [5] (§ 667.61, subds. (d)(3), (d)(6), (e)(3).) The true findings on the one-strike allegations subjected Cervantes to a sentence of 25 years to life on each of the five one-strike sex offenses. (§ 667.61, subds. (a), (e)(2), (e)(3), (j)(1), (j)(2).) The jury deliberated for approximately seven hours before reaching its verdicts.

         On November 16, 2012, Cervantes's trial counsel filed a three-page motion for new trial, arguing the evidence was insufficient to prove he had the required specific intent to support the convictions on counts 1 through 4, 6, 7, 10 and 15. Counsel also filed a thick stack of letters from family, friends, mentors, and community members in support of Cervantes, to be used at sentencing.

         B. Facts and Theories Developed by Pro Bono Counsel after Trial

         After Cervantes was convicted, Peter Obstler, a partner in the San Francisco office of Bingham McCutchen (and later of Arnold & Porter), took an interest in the case and attended the hearing on the new trial motion. With Obstler in the lead, Bingham McCutchen substituted in as Cervantes's counsel on a pro bono basis, and Obstler and Arnold & Porter continue to represent him on appeal. A new date was set for the hearing of the motion for a new trial.

         As he came up to speed on the case, Obstler learned that three different attorneys from the Conflict Defender's Office had represented Cervantes following his arrest. First was William Pendergast, who represented Cervantes from December 2010 to March 2011, when he was appointed as a commissioner. Then Kathryn Barton took over Cervantes's defense until she resigned from the Conflict Defender's Office around the end of 2011 or January of 2012. Beginning in February 2012, Erin Kirkpatrick, who was new to the Conflict Defender's Office, took over the representation and continued in that role through trial. Kirkpatrick had more than ten years of experience as a criminal defense attorney and entered the Conflict Defender's employ at a high level of experience and responsibility.

         After reviewing the transcripts and conducting his own investigation, aided by experts, Obstler came to advocate a different theory of the crime than Kirkpatrick had pursued at trial. He noted and built upon the fact that, early in the defense investigation of the case, Cervantes reported to Pendergast that, in addition to drinking, he had also smoked marijuana[6] and taken psilocybin mushrooms on the night of the crimes, which he had purchased from a “Northsider” at the party he had attended before the attacks. Cervantes specifically told Pendergast he did not get the mushrooms from Gabriel. Cervantes told Pendergast he had taken Ecstasy (MDMA), which he purchased from Gabriel, on numerous occasions but had not used MDMA on the night of the attacks. Another recent criminal case in town also involved a defendant named Richard Calkins, who took psilocybin mushrooms and then shot and killed two of his best friends and maimed a third while they were watching television, with no preceding argument or other provocation. Calkins's crime and the role of psilocybin mushrooms in it had been reported in the local newspapers.

         Even though Cervantes and Calkins apparently did not know each other, Obstler embraced the theory that the “Richard” mentioned by A.P. in her testimony was this very same Richard Calkins. He argued at the new trial motion and again on appeal that Cervantes never made the remark about “Richard, ” and A.P. probably misunderstood him or made it up from publicity about the Calkins case because her family had become suspicious that they were the targets of someone seeking revenge against Gabriel for having provided the mushrooms that resulted in such violent consequences.

         Despite their lack of an actual acquaintance with one another, Obstler claims there was a connection between Cervantes and Calkins. It turned out that Gabriel had sold the psilocybin mushrooms to Calkins more than three weeks before Cervantes's crimes, and Gabriel admitted as much to the police shortly after Calkins was arrested. That is apparently why he was in juvenile hall. Based on the reactions by Calkins and Cervantes after eating the mushrooms, Dr. Alex Stalcup, a defense addiction expert, speculated that the mushrooms in both cases may have been adulterated with MDMA or “angel dust” (PCP); the expert admitted on cross-examination that he did not, in fact, know whether the mushrooms were tainted. According to expert testimony in the Calkins case, some of the mushrooms in his possession did test positive for MDMA. From these leads, Obstler and his team have developed the theory that Gabriel also sold psilocybin mushrooms to Cervantes at around the same time he sold them to Calkins and they, too, were tainted with MDMA.[7]

         Obstler also pointed to additional information about Cervantes's developmental and mental health history that could have been used at trial to help explain his behavior that night. Cervantes's umbilical cord was wrapped around his neck at birth, resulting in oxygen deprivation. He was required to use oxygen machines to maintain breathing at times in his childhood. He had learning difficulties in school and had an individualized education program (IEP). He was in a car accident as a child and suffered some head injuries, at once characterized as “minor, ” but having led to “moderately severe brain damage.” He was diagnosed with attention deficit hyperactivity disorder (ADHD) in elementary school and had been on medication for it since second grade.

         But the evidence of Cervantes's developmental and mental health history was not all helpful. In one IEP, it was noted that Cervantes had an atypical obsession with sex and violence, so much so that the evaluator wondered if he had been sexually abused. When he was in the fifth or sixth grade he was removed from school and taken to the hospital after he said he was going to “kill [his] mother and burn [down the] house.”

         To help interpret the mental health evidence, Obstler sought out an expert, Dr. Michael Shore, a neuropsychologist, who conducted a battery of neurological tests and examinations, which led him to conclude that Cervantes had a baseline mental status of a ten-year-old. Among the tests he ordered performed was a single photon emission computed tomography (SPECT) study, which is a nuclear imaging test that employs glucose injected with radioactive material to measure brain activity. The SPECT test itself was performed by Dr. Daniel Amen, and his report was attached as an exhibit to the motion for a new trial. Dr. Amen concluded: “The most significant finding is decreased activity in the orbitofrontal cortex... consistent with an ADHD like process.” He also found scalloping, “often indicative of some form of toxic exposure, ” and decreased activity in the prefrontal pole, which “may indicate a history of brain injury.”

         Based in part on Dr. Amen's report, Dr. Shore concluded that Cervantes's brain was “diffusely damaged” and found specific “compromise” of the prefrontal cortex. He opined that Cervantes was in a state of “acute organic psychosis” when he attacked the children. Cervantes was also suffering from “longstanding and quite significant” depression, “moderate brain damage, ” and learning disabilities. Dr. Shore believed Cervantes's drug use partly explained his behavior that night, and he was allowed to testify to Cervantes's drug and alcohol history. He opined that Cervantes's substance abuse may have contributed to his brain damage, along with lack of oxygen at birth and “multiple minor head injuries.” Dr. Shore accepted as a fact that Cervantes had taken psilocybin mushrooms on the night of his crimes. His opinion was based on brain damage, psychedelic drug ingestion, and depression; no single factor could be considered the cause of the psychotic episode.

         Dr. Stalcup, a physician specializing in addiction medicine, also conducted an examination of Cervantes, focusing on the effect of hallucinogenic drugs on someone with his specific cognitive impairments, as described by Dr. Shore. Assuming Cervantes consumed psilocybin mushrooms on the night of the crimes, Dr. Stalcup endorsed Dr. Shore's opinion and concluded that Cervantes's alcohol and drug use caused an organic psychosis and Cervantes attacked his victims in a dissociative state. His opinion relied on Dr. Shore's report and on Cervantes's report of having taken psilocybin mushrooms that night. He was not allowed to testify that Cervantes was, in fact, using psilocybin mushrooms that night. He also thought Cervantes was “possibly” under the influence of MDMA. Dr. Stalcup also opined, however, even without psilocybin mushrooms, Cervantes's alcohol and marijuana use alone, combined with the deficits revealed in the SPECT scan, would have led to organic psychosis.

         C. The Motion for a New Trial

         On April 16, 2013, Obstler filed a motion for a new trial. Evidentiary hearings were conducted over the next several months, and on October 18, 2013, the court denied the motion. In addition to expert psychological testimony from Drs. Shore and Stalcup, [8] summarized above, Obstler called his legal expert, Coffer, to testify as an expert witness on competency of criminal defense counsel. (See fn. 7, ante.) In a lengthy written report with multiple attachments, as well as in testimony on the new trial motion, Coffer catalogued the errors and omissions he saw in Kirkpatrick's preparation for trial and trial strategy, and ultimately opined that Kirkpatrick had provided ineffective assistance of counsel. Obstler also called as witnesses two mental health experts retained by the defense before trial, as well as Kirkpatrick, Pendergast and Barton, and two of Kirkpatrick's superiors in the Conflict Defender's Office. The testimony will be summarized below, in the unpublished section of the opinion.

         The trial court denied Cervantes's motion for a new trial, finding Kirkpatrick credible and her decisions “competently made based upon the information she had at the time.” The court further found that, had the defense presented at trial the evidence presented in the new trial motion, “there is no reasonable probability that a different result would occur.” The mental health evidence had included an “[atypical] obsession with sex and violence and lack of control and behavioral problems” and, had it been presented to the jury along with “the actual horrific facts of the crime itself, ” it “would have been absolutely devastating to the defense.” The court also opined that “more evidence of voluntary intoxication through marijuana and psychedelic mushrooms” would not have resulted in a more favorable verdict for Cervantes.

         D. Sentencing

         On October 28, 2013, the court sentenced Cervantes to 50 years to life for two of the sex crimes under the one-strike law (two consecutive terms of 25-to-life), plus 11 years imposed consecutively for the attempted murder of I.A., plus an additional consecutive life term for the attempted murder of A.P. The remaining counts were either imposed concurrently or stayed under section 654. Thus, Cervantes's aggregate sentence was 61 years to life, plus a consecutive life term. Importantly, the longest terms were attributable to the sex offenses under the one-strike law, four of which were general intent crimes (rape, sodomy and two counts of oral copulation). Under section 667.61, Cervantes was not awarded any credits for good conduct before sentencing. (See section II.C.2.c., post.) The probation officer had calculated Cervantes's exposure at four life sentences without possibility of parole, plus an indeterminate term of 155 years to life and a determinate term of 15 years, 4 months. The judge stayed many of the potential sentences on various counts of conviction and enhancements in an effort to bring the sentence within the limits established by Graham, supra, 560 U.S. at page 74 and Caballero, supra, 55 Cal.4th at page 268. Through its comments at sentencing and the many sentencing choices it made, we believe the court fairly clearly expressed its intention to impose a life sentence with the highest minimum term it could, while avoiding an unconstitutional sentence under Caballero.


         A. Ineffective Assistance of Counsel

         1. Cervantes's Claims of Ineffective Assistance

         Still represented by Obstler and his firm on appeal, Cervantes contends Kirkpatrick was constitutionally ineffective in representing him, pointing out numerous errors she allegedly made. He claims that, in combination, these errors amounted to a complete failure to subject the prosecution's case to meaningful adversarial testing.

         First, Cervantes argues trial counsel failed to adequately investigate certain details of the case, specifically she (1) failed to consult with Cervantes's two prior attorneys, who could have informed her of their investigation to date and their theories of the case; (2) failed to follow up on crime scene photographs that showed a bicycle in the garage of the home where the attacks occurred, which defense counsel claims would have bolstered Cervantes's story that he entered Gabriel's house to retrieve his bike; (3) failed to follow up on crime scene photos that showed there was no forcible entry into the house; (4) failed to investigate the route Cervantes took in arriving at Gabriel's house; (5) failed to investigate other forensic evidence, specifically five cigarette butts, a beer can, and footprints outside the home that showed they were made before Cervantes entered the house, not afterwards, and therefore tended to undercut the prosecution's theory of the crime; (6) failed to subject the prosecution's revenge theory to adversarial scrutiny or investigation; (7) failed to investigate Gabriel's “exculpatory” statement to police about Cervantes's revenge motive; (8) failed to investigate or present evidence about who “Richard” was; and (9) abandoned an involuntary intoxication/drug psychosis defense based on consumption of psilocybin mushrooms laced with MDMA, based largely on a negative urine test conducted after Cervantes's arrest, which Cervantes claims was unreliable and an insubstantial basis for rejecting the mushroom defense.

         Second, he claims Kirkpatrick failed to adequately communicate with or prepare her expert witnesses, which caused her to “abandon[] important mental health and cognitive brain evidence that was not only material but crucial to the jury's determination” of the specific intent required for many of the alleged offenses. Specifically, she cut off communication with Dr. Roderick Pettis, an expert psychiatrist hired by the defense, without even securing a copy of his detailed notes of an interview he had conducted with Cervantes. She also failed to obtain a recommended brain scan for Cervantes. And, when informed shortly before trial by a different defense expert, Dr. John Podboy, a clinical and forensic psychologist, that Cervantes may have been in a “dissociative state” at the time of the crimes, she decided not to call that expert as a witness and went to trial without investigating further.

         And third, Cervantes contends the defense that Kirkpatrick did put on through Zehnder's testimony was not a legally viable voluntary intoxication defense, primarily because she did not choose an appropriate expert to explain why his state of intoxication would have negated Cervantes's formation of the specific intent required for the various crimes.[9] Zehnder testified primarily about the physical effects of alcohol intoxication, such as slurred speech and impairment of motor skills. We agree with Cervantes that he would have been better served if Kirkpatrick had called a neuroscience expert[10] who could have testified about the mental effects of alcohol intoxication and perhaps psilocybin intoxication on a person with Cervantes's apparent cognitive deficits.

         Where, as here, the trial court has denied a motion for a new trial based on an ineffective assistance claim, we apply the standard of review applicable to mixed questions of law and fact, upholding the trial court's factual findings to the extent they are supported by substantial evidence, but reviewing de novo the ultimate question of whether the facts demonstrate a violation of the right to effective counsel. (People v. Taylor (1984) 162 Cal.App.3d 720, 724-725.)

         We agree with Cervantes that trial counsel should have done more to investigate leads developed by Pendergast and Barton. Kirkpatrick's limited investigation of a psilocybin mushroom defense fell below the standard of objectively reasonable representation. Her minimal and ineffective communication with defense-retained experts caused her to make an uninformed decision in rejecting a theory of cognitive impairment as part of her voluntary intoxication defense. She chose as her only expert witness someone who was not qualified to opine on the mental impacts of extreme alcohol intoxication, much less on the combined effects of alcohol and psilocybin mushrooms on someone with Cervantes's brain impairment.

         Because Kirkpatrick's performance leaves us without confidence in the outcome of the trial on the specific intent crimes other than burglary, we hold she was constitutionally ineffective. We therefore reverse the eight counts specified in the disposition. On the general intent sex offenses, assault with a deadly weapon, and burglary charges, however, we are satisfied Cervantes got a fair trial with a reliable result, and we affirm.

         2. This Case is Governed by Strickland, not Cronic.

         In arguing that Kirkpatrick failed to subject the prosecution's case to “adversarial testing, ” Cervantes attempts to bring himself within the exception identified in United States v. Cronic (1984) 466 U.S. 648, 659 (Cronic) that allows reversal for ineffective assistance of counsel without a showing of prejudice where counsel “entirely fails to subject the prosecution's case to meaningful adversarial testing” so as to make “the adversary process itself presumptively unreliable.” Cronic recognized this exception would apply only to an extreme deviation from the norm. ( pp. 656-657.) To come within the exception, the United States Supreme Court has explained, counsel's failure to represent the defendant must be “complete.” (Bell v. Cone (2002) 535 U.S. 685, 697.) The California Supreme Court has also deemed the Cronic exception to be extremely limited: “Defendants have been relieved of the obligation to show prejudice only where counsel was either totally absent or was prevented from assisting the defendant at a critical stage.” (In re Visciotti (1996) 14 Cal.4th 325, 353; see also, Florida v. Nixon (2004) 543 U.S. 175, 190 [“narrow exception”].)

         Cervantes's case does not come close to meeting the requirements for the Cronic exception. Defense counsel filed motions in limine, gave an opening statement, made objections, cross-examined witnesses, presented two witnesses on behalf of the defendant, requested jury instructions, and made a closing argument to the jury. She succeeded in convincing the jury to make not true findings on several of the one-strike allegations, including infliction of great bodily injury, torture and aggravated mayhem. Kirkpatrick made a motion for a new trial based on insufficiency of the evidence on the specific intent crimes. She also filed a sentencing memorandum and assembled a large packet of letters of support for Cervantes in anticipation of sentencing. Cronic's reversible per se standard does not apply. In a case subject to the Cronic exception, these hallmarks of legal representation would be markedly absent or almost absent. (People v. Williams (2013) 56 Cal.4th 630, 690-691.)

         Instead, Strickland v. Washington (1984) 466 U.S. 668 (Strickland) provides the guiding principles, and it requires a showing of both deficient professional performance and prejudice. (Id. at p. 687.) On the performance prong, we “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance” (id. at p. 689), and measure counsel's performance against an “objective standard of reasonableness” (id. at p. 688). To establish deficient performance under Strickland, a defendant must show his or her attorney “made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” (Id. at p. 687.) To show prejudice, he must show “counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” (Ibid.) “The 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Id. at p. 694.)

         Although we usually require that claims of ineffective assistance of counsel be raised in a petition for writ of habeas corpus (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267), because the ineffective assistance of counsel claim was fully developed in the trial court on a motion for a new trial, we shall entertain the issue in this appeal, applying the Strickland test.

         3. Cervantes's Claims of Ineffective Assistance Do Not Affect the Jury's Verdicts on the General Intent Crimes: Forcible Rape, Forcible Sodomy, Forcible Oral Copulation, and Assault with a Deadly Weapon.

         By far the strongest of Cervantes's ineffective assistance claims is that trial counsel failed to bring certain evidence before the jury that might have caused one or more jurors to doubt that Cervantes had formed the specific intent required for some of the offenses, either because of alcohol and possibly psilocybin mushroom ingestion or because of cognitive impairment or brain damage, or especially because of those factors in combination. He claims, in essence, that Kirkpatrick could have and should have presented a stronger case of diminished actuality.[11]

         Diminished actuality evidence is limited by statute. “Evidence of mental disease, mental defect, or mental disorder is admissible solely on the issue of whether or not the accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged.” (§ 28, subd. (a).) Likewise, “[e]vidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought.” (§ 29.4, subd. (b).)

         Thus, diminished actuality is available only to disprove or cast doubt on mens rea in specific intent crimes. Cervantes makes reference to involuntary ingestion of MDMA in an apparent attempt to extend his challenge to the validity of the general intent crimes, [12] but we reject that argument as a matter of law. Since he claims to have taken psilocybin mushrooms voluntarily, the fact that they may have been, unknown to him, tainted with MDMA would not render the MDMA intoxication “involuntary.” (People v. Gallego (1990) 52 Cal.3d 115, 183-184; People v. Velez (1985) 175 Cal.App.3d 785, 795-797; CALJIC No. 4.23.)

         Kirkpatrick's alleged failings would not have led to a different verdict on the general intent crimes. It is significant that four of the one-strike crimes (forcible rape, forcible sodomy, and two counts of forcible oral copulation) were general intent crimes. (People v. DePriest (2007) 42 Cal.4th 1, 48 [forcible rape]; People v. Warner (2006) 39 Cal.4th 548, 557 [rape, sodomy, oral copulation]; People v. Hughes (2002) 27 Cal.4th 287, 341 [sodomy]; People v. Fox (2001) 93 Cal.App.4th 394, 398 [oral copulation with a child under age 14].) Presenting more mental state evidence would not have affected those verdicts. We therefore shall affirm the convictions on counts 11 through 14.

         In addition, the two counts of assault with a deadly weapon (counts 8 and 9) required only general intent. (People v. Colantuono (1994) 7 Cal.4th 206, 214.) Those convictions shall also be affirmed.

         4. Counsel's Alleged Failures Were Not Prejudicial on the Burglary Conviction or the Burglary One-Strike Findings.

         Some of Cervantes's claims of error by counsel are relevant solely to the burglary charge. Indeed, the burglary charge was especially significant because the 25-to-life terms were based in part on the fact that the sex crimes occurred during a burglary. (§ 667.61, subds. (a), (d)(4), (e)(2).) But we find none of the purported errors of counsel had any impact on the burglary conviction or the true findings on the burglary one-strike allegations.

         a. Photograph of Cervantes's Bicycle in Gabriel's Garage

         Cervantes filed a declaration under oath attached to the new trial motion in which he said that, after returning home from the party, he meandered about for a while and ended up at Gabriel's house. Once there, he remembered he had left his bicycle at Gabriel's house sometime earlier, so he decided to retrieve it. Relying on the declaration, Cervantes claims his trial attorney was ineffective for failing to recognize the significance of a photograph in evidence of Gabriel's family's garage, which shows the presence of Cervantes's bicycle. Cervantes claims this point could have been made without his testimony, as family members could have testified it was his bike in the photograph. But his intent to retrieve the bike could only have come to the jury through his own testimony.

         It is next to meaningless that Cervantes's bike was, in fact, at Gabriel's house. It does not, as Cervantes suggests, negate revenge as a motive for the crimes. Even if the bike photograph could explain his intent in entering the garage, it would not explain his intent in entering the home or the master bedroom. (See People v. Thomas (1991) 235 Cal.App.3d 899, 903-906 [entry from garage into locked kitchen was burglary].) The bike story was ultimately of only the slightest relevance and could not have been fleshed out without putting Cervantes on the witness stand, which neither Kirkpatrick nor Cervantes favored.

         b. Photograph Showing There Was No Break-in

         Similarly, we attach no significance to the fact that one photo of damage to the frame of the door leading into the garage, examined closely, showed the damage had been sustained at an earlier time. Cervantes claims this calls into question whether he actually had to forcibly enter the family's home or whether the door was unlocked. The interior door from the garage to the house was not damaged and apparently had been unlocked.

         Cervantes overestimates the importance of the photograph. It does not matter whether he broke into the house or walked in through an unlocked door. “[I]n California no breaking or forcible entry is required in proof of the commission of a burglary.” (People v. Beamon (1968) 268 Cal.App.2d 61, 65; accord, People v. Davis (1998) 18 Cal.4th 712, 720-721.) A burglary conviction requires that the defendant entered a building or room with the intent to commit a theft or a felony. (People v. Wallace (2008) 44 Cal.4th 1032, 1077; CALCRIM No. 1700.) Unauthorized entry through an unlocked door constitutes burglary. (People v. McCormack (1991) 234 Cal.App.3d 253, 254-257.) Moreover, the illegal intent may be formed after entry into a building and before entry into a room where the illegal act is committed. (Id. at pp. 255-257; see People v. Sparks (2002) 28 Cal.4th 71, 88 [entry by houseguest into unlocked bedroom of victim with intent to commit rape].) The lack of forcible entry was irrelevant.

         c. Footprints, Beer Can and Cigarette Butts Outside the Home

         Among the evidence found at the crime scene were a beer can and five cigarette butts outside the home near some footprints in the ashes that had fallen from a barbecue onto a pathway to the door leading into the garage. The prosecution used this evidence to suggest that Cervantes, after entering the house, left again to drink a beer and smoke a cigarette outside. A police officer testified the shoe prints in the ash matched Cervantes's shoes. The prosecutor suggested this was evidence of premeditation and deliberation because it gave Cervantes time to reflect on the crime he was about to commit. Cervantes pointed out in his motion for a new trial that footprints in the ash led toward the door to the garage, not away from it, thus suggesting he smoked the cigarette and drank the beer before entering the house, not afterwards. On appeal he argues the footprints could have been left by someone other than Cervantes.

         Even if trial counsel had made a point of trying to prove the officer was wrong, that would not cast doubt on who committed the crimes. Cervantes obviously committed the charged acts and never tried to point the finger at anyone else. Distracting the jury with a largely irrelevant argument about when the footprints were made or by whom would not have changed the outcome of the trial. There was far more evidence of premeditation and deliberation than footprints in the ashes.

         Whether he smoked and drank a beer before entering the home or afterwards, the evidence still shows he spent appreciable time outside the home, which would have given him an opportunity to contemplate his crimes. In fact, if he took this time before entering the home, it strengthens the prosecution's evidence of burglary because it tends to increase the likelihood he entered with felonious intent. We fail to see how stressing to the jury the direction in which the footprints were pointing, or questioning whether they were made by a third party, could have significantly improved Cervantes's defense, and it might well have had the opposite effect.

         d. Failure to Investigate Cervantes's Route to Gabriel's House

         We likewise find it difficult to imagine the jurors' verdicts would have been different if they had known which route Cervantes followed when he walked to Gabriel's house. Cervantes argues the circuitous route he followed was more consistent with a dazed “walkabout” than a deliberate trip to a known destination intent upon committing a crime. He seems to suggest this would have helped to blunt the evidence that he had a knife with him, suggesting it diminishes the inference he brought the knife along for the purpose of stabbing someone. Evidence of his exact route would have been weak evidence, at best, in his defense. And it could only have been presented through Cervantes himself, who did not want to take the stand. Putting him on the stand to prove this non-issue would have opened him up to cross-examination that could have had a severe negative impact on his defense. The risk was great and the potential reward trivial. This omission did not meet the showing required under the first prong of Strickland.

         e. Cervantes's Own Declaration Shows He Entered the House to Steal Alcohol.

         Although Cervantes seems to assume his potential alcohol/mushroom intoxication and cognitive impairment/brain damage defenses would apply equally to all the specific intent crimes, we find an exception for the burglary conviction. His own declaration explicitly describes how he entered the house, including the detail that the door stuck a little bit as he opened it, though it was unlocked. The declaration also explains why he entered: he entered the garage to retrieve his bicycle, and he entered the house to drink some of Gabriel's mother's alcohol that he expected to find in the freezer. This shows not only that he was clear-headed enough at the time of the burglary to form a specific intent, but also that the specific intent he formed was larcenous. Even entering to steal alcohol would amount to a burglary. (§ 459 [burglary is committed by entry “with intent to commit grand or petit larceny or any felony”]; People v. Sanghera (2006) 139 Cal.App.4th 1567, 1572 [intent to commit petty theft sufficient]; People v. Nguyen (1995) 40 Cal.App.4th 28, 30-31 [petty theft by false pretenses].) Cervantes's declaration amounts to a confession of burglary, and we see no reason to reverse the conviction on that count or on the burglary one-strike findings.

         This conclusion does not pre-ordain his guilt of the later specific intent crimes, however. The burglary was the first crime chronologically and was evidently committed when Cervantes still had his wits about him sufficiently to form a specific intent. Cervantes insists that he remembers virtually nothing after entering the house, stumbling, and falling in the kitchen. He evidently stayed at the house quite some time before attacking the children, time enough to consume three more beers. Thus, it is possible he entered a dissociative state sometime after entering the house but before attacking the children. This would not excuse him from the general intent crimes, or the burglary, or the burglary one-strike findings. He still committed the sex offenses “during the commission of a burglary” within the meaning of section 667.61, subdivision (e)(2). (People v. Alvarado (2001) 87 Cal.App.4th 178, 191 [“during the commission of a burglary” includes the entire duration of the burglary, from “initial entry with the requisite intent [until] the burglar's escape to a place of temporary safety”]; People v. Palmore (2000) 79 Cal.App.4th 1290, 1295-1296 [same].) Therefore, based on Cervantes's own declaration, we affirm the burglary conviction and the burglary one-strike findings accompanying the general intent crimes.

         5. Failure to Investigate and Present Evidence Regarding the Calkins Case and the Tainted Mushroom Defense Was a Legitimate Tactical Decision.

         Cervantes claims Kirkpatrick was ineffective because she failed to investigate and present evidence regarding the Calkins case. He claims this line of investigation was important to dispel the notion that the attack was committed as “revenge” for Gabriel's supposedly “snitching” on “Richard” because the revenge theory gave the prosecution a basis for arguing that Cervantes harbored a felonious intent when he entered the house (§ 459), supported the torture allegations (§ 206), [13] and bolstered the People's case for premeditation and deliberation on the attempted murder charges (§§ 187, 664). He claims Kirkpatrick performed below professional norms by failing to investigate his claim that he ingested psilocybin mushrooms-specifically mushrooms tainted with MDMA-shortly before committing the crimes. He draws a connection between his case and Calkins, claiming that both he and Calkins got their mushrooms from Gabriel, and the mushrooms were tainted with MDMA.[14]

         Cervantes further claims that Kirkpatrick missed an opportunity to rebut the prosecution's revenge theory by failing to investigate and present to the jury evidence of a litany of “facts” supported only by Coffer's report: “(1) The ‘Richard' referred to by A.P. was Richard Calkins, a young man who was facing trial on a double homicide that involved behavior as violent and bizarre as that of [Cervantes]; [¶] (2) Calkins was defending on the theory that he consumed hallucinogenic mushrooms laced with MDMA after purchasing the drugs from [Gabriel]; [¶] (3) [Gabriel] had been arrested in connection with the Calkins case after the police found hallucinogenic mushrooms in his house that were laced with MDMA; [¶] (4) Calkins and [Cervantes] had never met and [Cervantes] had no idea who Calkins was or what his relationship was to [Gabriel]; [¶] (5) [Cervantes] purchased hallucinogenic mushrooms from [Gabriel] around the same time that Calkins purchased the drugs; [¶] (6) [Cervantes] told his lawyers that just before leaving the house on his walk that night he ingested the mushrooms that he had purchased from [Gabriel]; [¶] (7) [Gabriel] admitted and had written incriminating notes about his dealing of mushrooms; [¶] (8) Photographs taken at the crime scene showed a newspaper article about the Calkins crime next to the bed where the victims were sleeping when [Cervantes] committed the acts;[15] [¶] (9) Prior to the night of the crime the victims' family had grown concerned about a report that men had been around their house looking for [Gabriel]; and [¶] (10) Calkins was being represented by the Public Defender and that representation provided the most reasonable basis for the Public Defender's decision to declare a conflict in [Cervantes's] case.”

         Drawing together the many strands of this theory of ineffective assistance of counsel, the nub of it appears to be that Kirkpatrick should have investigated the Calkins and tainted mushroom connections further to support a diminished actuality defense based on voluntary intoxication (alcohol, marijuana and mushrooms), and perhaps involuntary intoxication (MDMA), while simultaneously dispelling any inference he attacked Gabriel's siblings out of revenge against Gabriel on Calkins's behalf. Although the theory has some surface appeal and internal coherence, when considered as a whole, its individual parts are not supported by admissible evidence. Besides, Kirkpatrick had adopted a directly contrary strategy. When the prosecutor attempted to elicit information from a police witness about who “Richard” was, Kirkpatrick successfully moved to strike his ...

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