California Court of Appeal Jun 18, 2014 No. E057027Unpublished
Filed 6/18/14 P. v. Guzman CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E057027
v. (Super.Ct.No. FVA1001864)
JOSE ABRAHAM GUZMAN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Arthur Harrison,
Judge. Affirmed.
David P. Lampkin, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Steven T. Oetting and Barry
Carlton, Deputy Attorneys General, for Plaintiff and Respondent.
1
A jury found defendant and appellant, Jose Abraham Guzman, guilty of first
degree murder. (Pen. Code, § 187, subd. (a).)1 The jury found true the allegation that
defendant used a deadly or dangerous weapon in the commission of the murder.
(§ 12022, subd. (b)(1).) The trial court sentenced defendant to prison for a term of 26
means the defendant subjectively believes in the need to defend himself, but the belief is
objectively unreasonable. As a result, under imperfect self-defense, the defendant
cannot be convicted of murder, but may be convicted of voluntary manslaughter.
(People v. Por Ye Her (2009) 181 Cal.App.4th 349, 353.) Perfect/reasonable self-
4 The voluntary intoxication instruction provides: “You may consider evidence, if any, of the defendant’s voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with an intent to kill[,] [or] [the defendant acted with deliberation and premeditation[,]] [[or] the defendant was unconscious when (he/she) acted[,]] [or the defendant . . . <insert other specific intent required in a homicide charge or other charged offense>.] [¶] A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect. [¶] You may not consider evidence of voluntary intoxication for any other purpose.” (CALCRIM No. 625.)
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defense requires the defendant’s subjective belief to also be objectively reasonable. If
perfect self-defense applies, then the homicide is justifiable and the defendant is
exonerated. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.)
“A criminal defendant’s federal and state constitutional rights to counsel
[citations] include[] the right to effective legal assistance. When challenging a
conviction on grounds of ineffective assistance, the defendant must demonstrate
counsel’s inadequacy. To satisfy this burden, the defendant must first show counsel’s
performance was deficient, in that it fell below an objective standard of reasonableness
under prevailing professional norms. Second, the defendant must show resulting
prejudice, i.e., a reasonable probability that, but for counsel’s deficient performance, the
outcome of the proceeding would have been different. When examining an ineffective
assistance claim, a reviewing court defers to counsel’s reasonable tactical decisions, and
there is a presumption counsel acted within the wide range of reasonable professional
assistance. It is particularly difficult to prevail on an appellate claim of ineffective
assistance. On direct appeal, a conviction will be reversed for ineffective assistance
only if (1) the record affirmatively discloses counsel had no rational tactical purpose for
the challenged act or omission, (2) counsel was asked for a reason and failed to provide
one, or (3) there simply could be no satisfactory explanation. All other claims of
ineffective assistance are more appropriately resolved in a habeas corpus proceeding.
[Citations.]” (People v. Hung Thanh Mai (2013) 57 Cal.4th 986, 1009.)
The record does not affirmatively disclose that defendant’s trial counsel
(Faulhaber) lacked a rational tactical purpose for declining the voluntary intoxication
12
instruction. To the contrary, when declining the instruction, Faulhaber began explaining
why he believed the evidence may not support a finding that defendant was intoxicated.
Faulhaber conceded the evidence reflected defendant drank approximately eight beers
over a five-hour period, so the instruction may not be warranted by the evidence. The
trial court then interrupted Faulhaber, saying, “So it’s [(the intoxication defense)] not
being asserted.” Thus, it appears Faulhaber was beginning to explain his tactical
reasons for declining the instruction when he was interrupted. As a result, there is not
an affirmative disclosure of a lack of tactical reasoning.
As to the second step—whether counsel was asked to give a reason and
refused—the same portion of the record described ante, resolves this step. Faulhaber
was beginning to disclose his reasons for declining the instruction when he was
interrupted. Thus, the conviction cannot be reversed for a failure to disclose reasoning,
Faulhaber volunteered his reasoning to the extent permitted by the trial court.
We now turn to the third step—whether there could be no satisfactory
explanation for Faulhaber’s decision. As discussed ante, Faulhaber believed the
intoxication evidence was weak, due to the amount of alcohol consumed by
defendant—eight beers in a five-hour period. Faulhaber correctly recalled the evidence:
defendant admitted drinking approximately eight beers from 9:00 p.m. to 2:00 a.m.
During the police interview, defendant vacillated between (1) claiming to be “very
scared” of the victim, while also being the voice of reason, and doing what had to be
done, e.g., defendant said “What needed to happen happened”; and (2) claiming to be
drunk, angry, and not thinking.
13
Defendant’s first claim could support the idea of self-defense or defense of
others, while the second claim could support a theory of voluntary intoxication. In other
words, there is evidence arguably supporting both theories.5 Faulhaber was correct that
the evidence of defendant’s level of intoxication could be considered weak, due to the
amount of beer consumed. While arguably, the evidence of self-defense or defense of
others could be viewed as a bit stronger, given that the victim had broken the glass in
the door with his knife, threatened Erika with his knife, and cut Robles with his knife.
Given that imperfect self-defense would reduce the offense to voluntary
manslaughter, and perfect self-defense would result in defendant’s acquittal, Faulhaber
could have reasonably elected to proceed with a single self-defense theory, rather than
trying to have the jury reconcile intoxication and self-defense. Of the two theories
available, Faulhaber selected the one that arguably had stronger evidence and would
result in a lesser crime, if not exoneration.
In other words Faulhaber was arguably faced with deciding between three
options: (1) argue voluntary intoxication, with the weak evidence regarding the amount
of beer consumed, and possibly obtain a second degree murder conviction; (2) argue
self-defense, with the evidence concerning the victim’s use of the knife, and possibly
obtain a voluntary manslaughter conviction or acquittal; or (3) argue both self-defense
and voluntary intoxication, asking the jury to reconcile defendant’s differing versions of
5 The People concede, or at least proceed with the assumption, there is evidence that would support instructing the jury on the law of voluntary intoxication. Accordingly, we do not provide an in-depth substantial evidence discussion.
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the events—(a) that he was scared, the voice of reason—asking the victim to leave, and
only stabbing the victim because it was necessary; and (b) that he was drunk, angry, not
thinking, and therefore could not recollect exactly what happened.
A reasonable attorney could have elected not to argue both theories to the jury
because the evidence was somewhat contradictory. On the intoxication side, defendant
asserted he was drunk and could not recall exactly what happened, while on the self-
defense side, defendant assert he did what “needed” to be done. Faulhaber could have
reasonably decided that the contradictory portraits of defendant would not persuade the
jury if presented together. Thus, Faulhaber eschewed the voluntary intoxication theory
with its weaker evidence and greater crime (second degree murder), in favor of self-
defense with arguably stronger evidence and a lesser crime or acquittal. Whether the
decision was correct is not for us to decide, we conclude only that a rational basis
existed for declining the voluntary intoxication instruction. As a result, we conclude
Faulhaber’s legal assistance fell within an objective standard of reasonableness under
prevailing professional norms.
Defendant asserts the voluntary intoxication evidence was stronger than the self-
defense evidence, so a reasonable attorney would not have elected to proceed without
the voluntary intoxication defense. We agree with defendant in part. A reasonable
attorney may look at the case and conclude the voluntary intoxication evidence is
stronger than the self-defense evidence, as defendant argues; however, as explained
ante, a reasonable attorney could also assess the case and come to the conclusion that
the self-defense evidence was stronger.
15
The point is that defendant vacillated between the self-defense statements and the
voluntary intoxication statements, so both options were available. It was not
unreasonable for Faulhaber to elect the self-defense option, although he could have
reasonably also selected the voluntary intoxication option. In sum, defendant is correct
that a reasonable attorney could have argued the voluntary intoxication theory, but we
disagree with defendant’s conclusion that it was unreasonable to argue the self-defense
theory (for the reasons given ante). The case can reasonably be viewed as having two
options for defense theories, and it was reasonable for Faulhaber to proceed with the
self-defense theory. In other words, given the different available defense theories, we
cannot use hindsight to now conclude Faulhaber made the incorrect choice. At the time
of trial, it was reasonable for Faulhaber to select self-defense over voluntary
intoxication; therefore, we are not persuaded Faulhaber rendered ineffective assistance
of counsel.
Defendant asserts that if self-defense was a viable theory, then Faulhaber should
have presented both theories, because the theories are legally compatible. For example,
defendant may have been intoxicated and therefore unreasonably believed he needed to
defend himself or others. Again, defendant is correct that this was another reasonable
option; however, it does not mean Faulhaber’s performance was deficient for selecting a
different, but equal, viable defense theory.
Faulhaber could have reasonably concluded that the “self-defense only” option
was the better option, rather than presenting both theories, because while the theories
may be legally compatible, they were not necessarily factually compatible. For
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example, during defendant’s police interview, he presented what could be seen as two
different versions of his actions: (1) he was reasonable (trying to calm Vega and asking
the victim to leave) and scared of the victim; and (2) he was intoxicated, angry, and not
thinking. A reasonable attorney could conclude that presenting both theories may be
problematic, because the evidence supporting the two theories could be seen as
contradictory. Thus, while presenting both theories was an option, a reasonable
attorney could have elected to present only the self-defense theory. As a result, we
conclude Faulhaber’s performance fell within the wide range of reasonable professional
assistance.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
KING Acting P. J.
CODRINGTON J.
17
AI Brief
AI-generated · verify before citing
Holding. The court held that trial counsel's decision to forgo a voluntary intoxication instruction was a reasonable tactical choice, as the evidence of intoxication was weak and potentially contradictory to the primary defense of self-defense.
Issues
Whether trial counsel provided ineffective assistance by declining a voluntary intoxication instruction.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“A reasonable attorney could have elected not to argue both theories to the jury because the evidence was somewhat contradictory.”
“We conclude only that a rational basis existed for declining the voluntary intoxication instruction.”