PEOPLE v. WOODSNo. C058687.

THE PEOPLE, Plaintiff and Respondent,
v.
GREGORY JOSEPH WOODS, Defendant and Appellant.

Court of Appeals of California, Third Appellate District, Siskiyou.
Filed May 6, 2010.

NOT TO BE PUBLISHED

HULL, J.

A jury convicted defendant of second degree robbery (Pen. Code, § 211—count 1), felony evading (Veh. Code, § 2800.2, subd. (a)—count 2), and use of tear gas (Pen. Code, § 12403.7, subd. (g)—count 3). In connection with the robbery offense, the jury found the allegation that defendant personally used a firearm (Pen. Code, § 12022.53, subd. (b)) to be true.

Sentenced to state prison for an aggregate term of 13 years, defendant appeals. He contends trial counsel had a conflict of interest and rendered ineffective assistance. We affirm the judgment.

FACTS AND PROCEEDINGS

Shelley M. worked as a cashier at a gas station in Yreka. About 9:00 p.m. on September 24, 2005, Shelley's daughter entered the gas station, spoke with defendant who was in the store, and introduced him to Shelley. Defendant seemed to be unimpaired and bought some chewing tobacco. There was a lot of money in Shelley's cash drawer at the time.

About 9:40 p.m., Shelley's coworker Lanette L. arrived at the gas station and noticed from the front door about $5,000 in cash on a desk in the office. Lanette went inside and told Shelley to put the money away, which she did.

Later that night, Lanette saw defendant's pickup truck at a gas pump although no one got out of the truck. Five minutes later, the truck went behind the station and then towards the high school. The truck had been parked across the street the previous evening but left when a police car entered the station.

Ten to 20 minutes later, defendant entered the station and announced to Lanette, "This is a holdup. Give me your money." Lanette thought defendant was joking and pulled his mask off.

Defendant repeated his demand. Lanette then tried to grab his gun, a .25 caliber automatic that was pointed at her head but she was unable to reach it. Lanette yelled to Shelley. Seeing defendant holding a gun in one hand and Lanette in his other hand, Shelley dialed 911 and informed the operator that defendant had a gun. Defendant approached Shelley and, pointing the gun at Lanette, told Lanette to get behind the counter and to get the money. Lanette retrieved about $114 from the cash register, and put the money in a black, blue and gray bag as instructed while defendant repeatedly said "it's too late." He did not smell of alcohol, did not fumble with the gun, did not shake, and seemed to be steady on his feet. Defendant asked, "Where's the rest of the money?" He approached Lanette, ordered her to the floor at gunpoint, and said, "It's over." Lanette begged him not to kill her. Defendant reached into the bag, pulled out pepper spray, and sprayed Lanette, demanding to know where the rest of the money was. Lanette directed defendant to the office. Defendant came out of the office and again demanded to know the location of the money. Lanette explained that Shelley had probably put the money "in the drop." Defendant returned to Lanette, made her lift up her face, and pepper sprayed her face. Defendant's pupils were "huge," like somebody on drugs or nervous or filled with adrenalin. Defendant then left the station. Shelley went over to Lanette and thought she had been shot because of the red pepper spray.

Shortly after 11:00 p.m., Yreka Police Officer Scott Daugherty arrived at the gas station on a report of a robbery by a male suspect with a small handgun and saw defendant leaving with a bag. After looking in some parked cars, defendant walked through a field with a depression and blackberry bushes. The officer lost sight of defendant. Siskiyou County Deputy Sheriff Robert Stewart searched the field, heard a rustling sound, and found defendant carrying a bag. Defendant walked away from the officer even though ordered several times to stop.

Defendant got into a pickup truck and led officers on a three-and-one-half-mile pursuit though residential neighborhoods, traveling over 65 miles per hour, failing to stop at stop signs, and turning the lights off on his truck. One officer got into an accident with a third car while pursuing defendant, causing damage to the patrol car and injuring the occupants in the other car. The chase ended when defendant crashed his truck into another car. Defendant got out of his truck and was arrested. He displayed no signs of drug or alcohol intoxication, his pupils were not dilated or constricted, and he did not smell of alcohol. Officers opined that defendant's driving skills during the pursuit were contrary to someone under the influence.

A search of the truck revealed a blue and gray backpack with duct tape on it. In the backpack, officers discovered a headlamp, pepper spray, loose currency, and plant material from the blackberry bushes in the field. A total of $215 in cash and 40 cans of chewing tobacco taken from the gas station were recovered from defendant. An empty prescription bottle for hydrocodone was found in the truck. Defendant denied taking any medications and said the bottle was an old one.

Defendant admitted that he alone had robbed the gas station, using pepper spray. He denied the use of a gun. He told an officer at the scene that it was a "long story" as to why he had robbed the station. A few hours after the robbery, a corrections officer at jail did not see any signs that defendant was intoxicated. No gun was recovered from the field. Defendant had owned a . 25 caliber handgun at one time.

Anthony M. testified for the defense. Anthony had been defendant's neighbor for over a year. About 3:30 p.m. on the day of the robbery, Anthony saw defendant and thought defendant's behavior was unusual. About 9:30 p.m. that night, Anthony had to go to defendant's home because defendant's dogs were barking. Defendant was not home. Anthony stayed until 11:00 p.m. and then left. Anthony's wife stayed at defendant's home and defendant never came home that night.

Defendant testified. He admitted having owned a .25 caliber handgun but claimed he lost it on a backpacking trip in August 2005. He admitted that he did not report having lost it.

Defendant taught at the high school in Yreka. He coached the week before the robbery. On Wednesday before the robbery, he was introduced to Shelley at the gas station. At a powder-puff football game later that night, his back went out and he sought medical care from nurse practitioner Karen E. On Thursday, Karen gave him a prescription for 90 "soma" and 600-milligram ibuprofen. Later that day, he got gas for his truck at the station. The next day, a Friday, defendant drove to Redding for a PET scan. A questionnaire that he filled out that day reflected that he claimed no recent injuries. He got some valium from a nurse prior to the scan. He then returned to Yreka and had his back X-rayed.

On the day of the robbery, Saturday, September 24, defendant sought additional care for his back and received a prescription for Norco from Karen. He filled the prescription and was upset that it was a "small size of Norco." He wanted to complain to Karen but the medical facility was closed. He went to a friend's home and was angry. He did not recall taking any prescription medications when he got home.

Defendant admitted that he had a gambling problem and was behind on his rent and truck payment. He denied asking Jeff A. for a $2,000 loan. He admitted that Jeff gave him $200 when defendant claimed $800 had been stolen from him. He denied stealing Jeff's identity to get a loan. Defendant claimed that Jeff gave his social security number to defendant. Defendant denied asking Sandy S. for a loan. Defendant denied using his estranged spouse's name to obtain a loan. He denied forging a prescription for Norco and taking it to a pharmacy.

Defendant claimed he did not remember much about the robbery. He did not remember packing a backpack with gloves, pepper spray and a headlamp; painting his face black; dressing all in black; or walking into the station. He admitted the pepper spray belonged to him. He had had it for two years and used it while backpacking. He had no recollection of having a gun and denied that he did. He had a "quick flashback" of the lights and the coolers inside the station and had a "moment of clarity" when fleeing from the police. He was awakened when he crashed. He did not remember the booking process or the officer's questions about medications. He did not remember being interviewed. He was released from jail the next day and went home. He thought that he had taken 12 Soma, two or three Valium, all of the Norco, and drank some wine coolers based on what he found on the counter. He admitted, however, that he was not sure what he took. Five days after the robbery, defendant spoke with a psychiatrist and gave details of the robbery, which he claimed he had read in the police report, having received the report from his attorney.

The psychiatrist, Dr. Thomas Andrews, testified that defendant claimed to have been depressed for a year. Defendant explained the robbery in detail as well as having been taken to jail and having been asked about the medications he had taken. Defendant claimed a doctor had prescribed him Norco, Soma, and Valium, all depressants. If taken together, Dr. Andrews opined that the person would be disoriented, possibly psychotic, and unable to make decisions. Dr. Andrews watched the videotape of defendant's booking and admitted that defendant did not exhibit any symptoms of having taken depressants. He appeared sober.

Defendant's friend, Steven V., went backpacking with defendant in August 2005. During the trip, defendant stated that he had lost his gun. Steven looked for the gun on his way back from the trip. Steven never told law enforcement that defendant had lost his gun.

In rebuttal, Shelley testified and confirmed that her daughter introduced her to defendant on the day of the robbery.

Sandy S. loaned $2,000 to defendant prior to the robbery. On cross-examination, Sandy stated that she noticed several empty pill bottles in defendant's home the day after the robbery.

Jeff gave $200 to defendant although he had asked for $2,000. Defendant often asked for a loan in September. Jeff did not give his social security number to defendant in order for him to obtain a loan.

The prosecutor's office did not give the police report to defendant's attorney until October 11, 2005, more than two weeks after the robbery. The police department did not have any record of providing a copy of the report to defendant.

On July 2, 2004, Dennis C., the pharmacist at a Rite Aid pharmacy, determined that the ostensible prescribing physician, Dr. Sternberg, had not written the prescription for Norco and that it was forged. Dennis identified defendant as having dropped off the prescription. The parties stipulated that if called to testify, Dr. Sternberg would confirm that the prescription was forged.

In surrebuttal, defendant claimed he got a copy of the police report from the police department on September 27. Defendant explained that Dr. Sternberg was one of his treating physicians and when he needed a new prescription, he would either go into the office and get the prescription or called Dr. Sternberg who called it into the pharmacy. Defendant denied being the one who had forged the prescription in July 2004. Defendant claimed that he had been through chemotherapy and did not appear the same during that period of time, which conflicted with Dennis's testimony. Defendant claimed that he had had other people pick up prescriptions for him and bring them to him where he was camping because he could not drive.

DISCUSSION

I

Conflict of Interest

Defendant contends that trial counsel had a conflict of interest that adversely affected his defense and that the trial court failed to investigate defendant's allegations of a conflict of interest in his motion for new trial. We reject these claims.

Defendant was convicted in November 2007 and sentencing was scheduled for December 2007. Prior to sentencing, the prosecutor filed a statement in aggravation, and Attorney Gazzigli filed a request that the court strike the gun enhancement and impose the lower term for the robbery offense. On the date scheduled for sentencing, defendant personally filed a motion for a new trial, alleging ineffective assistance of counsel, newly discovered evidence, and evidence tampering. The prosecutor opposed the motions, arguing that defendant's motion for a new trial did not include his declaration but instead his sister's declaration. Defendant's new trial motion was denied. After an in camera hearing, the court granted defendant's Marsden (People v. Marsden (1970) 2 Cal.3d 118) motion, relieved Attorney Gazzigli, and appointed new counsel, Attorney John Lawrence.

At sentencing on April 11, 2008, the court denied defendant's Marsden motion to relieve Attorney Lawrence but granted defendant's motion to represent himself. In representing himself, defendant sought a new trial and read part of his declaration. The court interrupted, noting that defendant's claims would more appropriately be decided in a writ of habeas corpus. Defendant commented that he needed legal representation. The court inquired whether defendant desired the reappointment of Attorney Lawrence and defendant responded affirmatively and withdrew his request to represent himself. Attorney Lawrence was reappointed.

After Attorney Lawrence's request for a continuance was denied, Attorney Lawrence made an oral motion for a new trial, submitted "two sets of documents," defense exhibits A and B, and noted that the prosecutor had not seen them. The prosecutor objected to the lack of notice, commenting that one set of documents was an inch thick and the other was defendant's declaration which was not signed. The court allowed defendant to swear under penalty of perjury that the declaration was his.

Defendant's exhibit B consisted of the following: a lengthy document labeled points and authorities with mostly "points," and defendant's declaration, a portion of which defendant had previously read to the court.

Defendant's exhibit A consisted of the following: defendant's personally prepared motion for a new trial, claiming ineffective assistance of Attorney Gazzigli, which consisted of a 52-page, single-spaced, "introduction/background" and numerous attachments, totaling almost 100 pages.

In the 52-page introduction/background, defendant discussed Attorney Gazzigli's failure to object to Dennis's rebuttal testimony wherein he stated that he filled a prescription for defendant which had a forged signature of Dr. Sternberg, and Attorney Gazzigli's stipulation that if called to testify, Dr. Sternberg would state that the prescription had been forged. Defendant states: "The trial court cannot ignore a letter sent to defendant [o]n May 9, 2007, where Gazzigli announces the possibility of a[n] `Alleged Forgery' brought into evidence would be a (conflict of interest) for Mr. Gazzigli, due to the fact Dr. Sternberg had been a client at one time. (see Exhibit X) The fact that Dr. Sternberg's name is used prominently throughout testimony by Dennis frustrates the defendant, as the doctor was never called to testify. This is unacceptable, and defendant cannot justify or envision a viable strategy."

The exhibit (exhibit X) is a letter dated May 9, 2007, from Attorney Gazzigli to defendant which stated in relevant part, that additional discovery was enclosed, including "an allegation that [defendant] attempted to forge Dr. Sternberg's name on a Norco prescription." Attorney Gazzigli stated, "I am not certain if the DA will attempt to put this into evidence but if they do, I have a potential conflict, as Dr. Sternberg was a previous client of mine. Therefore, I will discuss the same with the DA and see where they are going with this."

During a 45-minute recess, the court reviewed defense exhibits A and B and thereafter denied the motion for a new trial. The court did not inquire about Attorney Gazzigli's letter notifying defendant of a potential conflict of interest.

"A criminal defendant is guaranteed the right to the assistance of counsel by the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution. This constitutional right includes the correlative right to representation free from any conflict of interest that undermines counsel's loyalty to his or her client. [Citations.] `It has long been held that under both Constitutions, a defendant is deprived of his or her constitutional right to the assistance of counsel in certain circumstances when, despite the physical presence of a defense attorney at trial, that attorney labored under a conflict of interest that compromised his or her loyalty to the defendant.' [Citation.] `As a general proposition, such conflicts "embrace all situations in which an attorney's loyalty to, or efforts on behalf of, a client are threatened by his responsibilities to another client or a third person or his own interests. [Citation.]"' [Citation.]" (People v. Doolin (2009) 45 Cal.4th 390, 417 (Doolin).) Of course, "[t]he right to conflict-free counsel may be waived." (People v. Easley (1988) 46 Cal.3d 712, 729, disapproved on another point in Doolin, supra, 45 Cal.4th at p. 421, fn. 22.)

Here, it may be argued that defendant accepted the risk of conflict. After defendant was informed of the potential conflict, defendant insisted on Attorney Gazzigli's representation when he moved to withdraw as counsel. Defendant never objected so the trial court did not know of a potential conflict and was thus not obligated to inquire. (Cuyler v. Sullivan (1980) 446 U.S. 335, 346-347 [64 L.Ed.2d 333, 345-346].) On this record, it is unclear what more, if anything, defendant was told about the potential conflict and whether he expressly waived it. In any event, defendant's claim must be rejected.

All of this came up after the trial and before sentencing. Thus the trial court was aware of Dr. Sternberg's role in the trial proceedings.

Defendant contends that Attorney Gazzigli had a conflict of interest because he had previously represented Dr. Sternberg. Dennis testified the prescription for Norco had the forged signature of Dr. Sternberg and the parties stipulated that if called, Dr. Sternberg would testify that the prescription was forged. Defendant argues that Attorney Gazzigli's conflict had an adverse effect on his defense to the forged prescription allegation. Defendant complains that Attorney Gazzigli simply chose to question Dennis about defendant's appearance when he allegedly picked up the prescription and to recall defendant to deny his involvement.

Applying the federal standard set forth in Mickens v. Taylor (2002) 535 U.S. 162 [152 L.Ed.2d 291], we conclude that defendant has failed to show that Attorney Gazzigli labored under "`an actual conflict of interest'" "`that affected counsel's performance—as opposed to a mere theoretical division of loyalties.'" (Id. at p. 171 [152 L.Ed.2d at p. 304]; see also Doolin, supra, 45 Cal.4th at pp. 417, 421.) To be candid, on this record, we do not see even a theoretical division of loyalties.

"`An "actual conflict," for Sixth Amendment purposes, is a conflict of interest that adversely affects counsel's performance.' [Citation.]" (Doolin, supra, 45 Cal.4th at p. 418, citing Mickens, supra, 535 U.S. at p. 172, fn. 5 [152 L.Ed.2d at p. 304].) "[W]hether counsel's performance was `adversely affected' under the federal standard `requires an inquiry into whether counsel "pulled his punches," i.e., whether counsel failed to represent defendant as vigorously as he might have, had there been no conflict. [Citation.] In undertaking such an inquiry, we are . . . bound by the record. But where a conflict of interest causes an attorney not to do something, the record may not reflect such an omission. We must therefore examine the record to determine (i) whether arguments or actions omitted would likely have been made by counsel who did not have a conflict of interest, and (ii) whether there may have been a tactical reason (other than the asserted conflict of interest) that might have caused any such omission.' [Citation.]" (Doolin, supra, 45 Cal.4th at p. 418.)

Defendant suggests that Attorney Gazzigli pulled his punches by failing to object to Dennis's hearsay testimony that he learned in a telephone conversation with Dr. Sternberg's office that the prescription was forged and by failing to vigorously cross-examine Dennis about filling the prescription first before checking on whether it was genuine and whether he reported having done so. Had Attorney Gazzigli cross-examined Dennis accordingly, defendant argues Dr. Sternberg would have been called as a witness and Attorney Gazzigli would have had to cross-examine a former client. On cross-examination, defendant argues a nonconflicted attorney would have asked Dr. Sternberg the following:

"a. Whether [Dennis] actually called Dr. Sternberg's office on July 2, 2004, to inquire about a possible forged prescription. "b. If [Dennis] didn't call Dr. Sternberg's office on July 2, 2004, how that office first found out about that particular prescription. "c. Whether [defendant] had been a patient of Dr. Sternberg's. "d. If so, whether Dr. Sternberg had issued legitimate prescriptions to [defendant] for Norco, how many such prescriptions, and when. "e. Whether Dr. Sternberg would have filled a prescription for Norco on July 2, 2004, if [defendant] had requested it. "f. Whether Dr. Sternberg had had a problem with prescriptions being forged in his patients' names.

"g. Whether there had been an investigation into allegations that office staff had been involved in forging prescriptions in his patients' names."

Defendant argues the foregoing cross-examination would have breached Attorney Gazzigli's duty of loyalty to Dr. Sternberg because it would have suggested Dr. Sternberg mismanaged his office and his prescriptions, leading to possible discipline or criminal liability. Defendant speculates that Dr. Sternberg did not receive a call from Dennis which would have destroyed Dennis's credibility. Defendant complains that counsel also failed to investigate whether the handwriting on the prescription matched defendant's. Citing his statements in his personally prepared new trial motion, defendant alleges that Dr. Sternberg's office was being investigated for forged prescriptions by staff members. Defendant complains that counsel failed to call witnesses to confirm that defendant was camping out and had lost his hair.

Under the circumstances and on the record presented, defendant has failed to demonstrate a conflict of interest. Attorney Gazzigli stated in his letter that he had previously represented Dr. Sternberg. The parties stipulated that if called, Dr. Sternberg would testify the prescription was forged. Dr. Sternberg did not identify defendant as the forger. Defendant testified and denied that he forged the prescription. Defendant described his appearance which conflicted with Dennis's description of the person who dropped off the forged prescription. This evidence supports the inference that Attorney Gazzigli opted not to further cross-examine Dennis and not to call Dr. Sternberg because counsel determined the testimony would not assist the defense. Defendant's legal rights were not jeopardized. The record suggests that Attorney Gazzigli did not pull his punches but instead made a tactical decision on how best to proceed. There is a reasonable explanation for counsel's failure to call witnesses to confirm defendant's appearance—there were none. Defendant's suggested cross-examination of Dr. Sternberg is based on his unsubstantiated claim that Attorney Gazzigli failed to investigate whether the doctor could provide favorable evidence.

Even assuming defendant demonstrated the asserted conflict of interest adversely affected counsel's performance, defendant has failed to demonstrate a reasonable probability that he would have obtained a more favorable result in the absence of counsel's failures. (Doolin, supra, 45 Cal.4th at pp. 418, 428-430; Mickens, supra, 535 U.S. at p. 166 [152 L.Ed.2d at p. 301].) Where an attorney "`actively represented conflicting interests'" (multiple concurrent representation), a presumption of prejudice applies; Strickland v. Washington (1984) 466 U.S. 668, 692 [80 L.Ed.2d 674, 696] (Strickland) "provides the appropriate analytic framework for assessing prejudice arising from attorney conflicts of interest outside the context of multiple concurrent representation." (Doolin, supra, 45 Cal.4th at p. 428; see also id. at p. 418.) The Strickland standard applies here.

The evidence against defendant was overwhelming. He admitted that he committed the offenses. The issues revolved around his use of a firearm and his mental state. Both victims claimed defendant had a weapon. He denied that he did. Defendant claimed he lacked the mental state to commit the crimes because he had used prescription medications and drank alcohol. Dr. Andrews reviewed the booking videotape and concluded defendant was sober, confirming the officers' testimony. Defendant's credibility was attacked in various ways, only one of which involved the alleged forged prescription. When arrested, defendant denied taking any medications. He claimed otherwise at trial. Defendant claimed he related the details of the robbery to Dr. Andrews not based on his memory but based on a police report. Evidence was introduced that defendant could not have received a copy of the police report until after his meeting with Dr. Andrews. Defendant improperly used the social security number of one friend as well as his estranged spouse's name to get a loan/money although defendant denied their claims. Further, he committed a crime of moral turpitude, having admitted that he committed the robbery. Defendant's conflict of interest claim fails.

II

Ineffective Assistance of Counsel

Defendant next contends that counsel rendered ineffective assistance in that (a) he failed to investigate or call witnesses to impeach Lanette and Shelley, (b) he failed to cross-examine Shelley on her prior inconsistent statements that she had not seen a gun, (c) he failed to present the testimony of Karen E. even though he told the jury in his opening statement that she would be testifying, (d) he failed to request an instruction on involuntary intoxication, and (e) he needlessly conceded defendant's guilt on the charge of use of tear gas. We reject these arguments as well.

To establish ineffective assistance of counsel, defendant must demonstrate that counsel's performance was deficient and that defendant suffered prejudice as a result. (Strickland, supra, 466 U.S. at pp. 687-688, 694 [80 L.Ed.2d at pp. 693, 698]; Doolin, supra, 45 Cal.4th at p. 417.) Reasonable tactical decisions by counsel will not be second guessed. (People v. Lucas (1995) 12 Cal.4th 415, 436-437.) Defendant has failed to demonstrate deficient performance.

According to Attorney Gazzigli, who was not contradicted by either the court or the prosecutor, the trial court's in limine rulings excluded evidence of the victims' criminal records as remote and inadmissible. There is nothing in the record to refute Attorney Gazzigli's claims. Attorney Gazzigli obviously investigated the victims' backgrounds and sought to impeach them. Defendant has failed to demonstrate on this record that Attorney Gazzigli's performance was deficient in this respect.

Defendant next claims that Attorney Gazzigli failed to cross-examine Shelley on her prior inconsistent statements that she had not seen a gun. A defense investigator, Shannon Bowlin, wrote to defendant's previous attorney on December 16, 2005, that she had interviewed Sierra B., a former high school student who had defendant as a teacher. Sierra was a friend of Shelley's daughter, Carissa L. According to Bowlin, Sierra made the following statements. Sierra claimed that on the date of the robbery, she and Carissa delivered a "`10 [dime] bag of pot'" to Shelley, allegedly a substance abuser, at the gas station and left. Shortly thereafter, Shelley called Carissa about the robbery. Sierra and Carissa went to the station where Shelley described the robbery by defendant. Sierra stated that Shelley told her (Sierra) and Carissa that Shelley "didn't actually see a gun [but] assumed it was a gun."

According to the prosecutor, a district attorney investigator, Cathy Golden, subsequently interviewed Sierra who "made quite clear that Shannon Bowlin had lied in her report" about drug use by Shelley and Sierra "made clear that she never said anything like that." The prosecutor stated that the investigation had been done, the statement was refuted, discovery of the same had been provided to Attorney Gazzigli, and "there's nothing that could have been done differently as a practical matter."

At the Marsden hearing, Attorney Gazzigli had stated that Shelley's statement which was reported by Sierra to Bowlin was hearsay and inadmissible. Based on Sierra's statement to Golden that Bowlin had lied, Sierra may have testified that not only did she not say anything about Shelley's drug use, she did not say that she heard Shelley say she did not see a gun. The record does not reflect what Sierra would have actually stated or even Carissa for that matter. Where the record is insufficient to evaluate a claim of ineffective assistance of counsel, defendant is relegated to a petition for a writ of habeas corpus.

Defendant also faults Attorney Gazzigli for not calling Robert P. to testify and contradict Shelley and Lanette about defendant's use of a gun. According to Lanette's testimony, when defendant approached Shelley, Lanette waved away a customer who was about to enter the station store. An officer stopped Robert near the station at the time of the robbery. Robert may or may not have been the customer Lanette shooed away. In any event, it is unclear from the record what Robert may have seen. Even defendant does not explain what Robert may have seen. Again, on this record, defendant has failed to demonstrate that counsel's performance was deficient in not calling Robert to testify.

Defendant complains that Attorney Gazzigli failed to present the testimony of Karen E., a nurse practitioner. During the Marsden hearing, Attorney Gazzigli explained that he attempted numerous times to locate and to speak with Karen but was unsuccessful because he could not locate her. Attorney Gazzigli learned that Karen did not want to discuss the case with him and did not want to help defendant. Attorney Gazzigli noted that he tried to get Karen's report into evidence, that the court ruled it was inadmissible, but that the contents came in through Dr. Andrews's and defendant's testimony. Although Attorney Gazzigli told the jurors in opening statement that they would hear from Karen that defendant complained about pain and the prescriptions given to him for the pain, defendant testified to the same and Dr. Andrews did as well. The jury was instructed that neither side was required to call all witnesses. Karen's possible testimony is not part of the record on appeal. Again, defendant has failed to demonstrate on this record that Attorney Gazzigli's performance was deficient in this respect.

The jury was instructed on voluntary intoxication. (CALCRIM No. 3426.) Defendant contends that Attorney Gazzigli failed to request an instruction on involuntary intoxication. Defendant testified that he was not sure about the medications he took on the date of the robbery and could not recall certain details of the robbery. Because there was no substantial evidence to support an instruction on involuntary intoxication, that is, defendant unknowingly ingested medication or alcohol or his intoxication was caused by the force of someone else (CALCRIM No. 3427), we reject defendant's claim that Attorney Gazzigli's performance was deficient.

Finally, defendant claims that Attorney Gazzigli's performance was deficient in conceding in closing argument that defendant was guilty of the tear gas offense. The issues at trial were defendant's gun use in commission of the robbery and his mental state. A gun was never found. Defendant's mental state was relevant to robbery, evading and gun use. Voluntary intoxication is not a defense to the use of tear gas which is a general intent crime. Attorney Gazzigli's concession was a tactical decision.

Defendant has failed to demonstrate that Attorney Gazzigli's performance was deficient. Defendant's claim of ineffective assistance of counsel has no merit.

The recent amendments to Penal Code section 4019 do not operate to modify defendant's entitlement to credit, as he committed a serious felony. (Pen. Code, § 4019, subds. (b)(1), (2) & (c)(1), (2); Stats. 2009, 3d Ex. Sess., ch. 28, § 50.)

Disposition

The judgment is affirmed.

We concur.

SCOTLAND, P. J.

CANTIL-SAKAUYE, J.


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