           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

1012
CAF 12-01062
PRESENT: SMITH, J.P., FAHEY, SCONIERS, VALENTINO, AND WHALEN, JJ.

IN THE MATTER OF STARR L. ROSHIA,
PETITIONER-RESPONDENT,

                     V                            MEMORANDUM AND ORDER

CHRISTOPHER J. THIEL, RESPONDENT-APPELLANT.
(APPEAL NO. 2.)

JENNIFER M. LORENZ, LANCASTER, FOR RESPONDENT-APPELLANT.

MICHAEL A. SIRAGUSA, COUNTY ATTORNEY, BUFFALO (KRISTEN M. MARICLE OF
COUNSEL), FOR PETITIONER-RESPONDENT.

     Appeal from an order of the Family Court, Erie County (Kevin M.
Carter, J.), entered May 16, 2012 in a proceeding pursuant to Family
Court Act article 4. The order confirmed the finding of the Support
Magistrate that respondent willfully failed to obey an order of the
Court.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Same Memorandum as in Matter of Roshia v Thiel ([appeal No. 1]
___ AD3d ___ [Oct. 4, 2013).

Entered:   October 4, 2013                      Frances E. Cafarell
                                                Clerk of the Court


775 N.W.2d 797 (2009)
PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Jacob TRAKHTENBERG, Defendant-Appellant.
Docket No. 138875. COA No. 290336.
Supreme Court of Michigan.
December 30, 2009.

Order
On order of the Court, the application for leave to appeal the March 20, 2009 order of the Court of Appeals is considered. We DIRECT the Oakland County Prosecuting Attorney to answer the application for leave to appeal within 28 days after the date of this order. The motion to withdraw as counsel and the application for leave to appeal remain pending.


     Case: 09-70024 Document: 00511476443 Page: 1 Date Filed: 05/12/2011

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            May 12, 2011

                                       No. 09-70024                         Lyle W. Cayce
                                                                                Clerk

RONNIE PAUL THREADGILL,

                                                   Petitioner - Appellant
v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                   Respondent - Appellee

                   Appeal from the United States District Court
                        for the Northern District of Texas

Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
       Ronnie Paul Threadgill was convicted of capital murder and sentenced
to death in a Texas state court. The jury found that he shot and killed
seventeen-year-old Dexter McDonald while carjacking the vehicle in which
McDonald was a passenger. After exhausting state remedies, Threadgill filed
a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in the United
States District for the Northern District of Texas. The district court denied
relief, but granted him a certificate of appealability (“COA”) on his claim “that

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
    Case: 09-70024 Document: 00511476443 Page: 2 Date Filed: 05/12/2011

                                         No. 09-70024

he was denied effective assistance of counsel under the Sixth and Fourteenth
Amendments when his trial counsel failed to adequately investigate and
challenge the State’s use of an extraneous offense” during the punishment
phase of his trial. Threadgill appealed and seeks a COA as to two additional
issues: (1) “[w]hether [he] was denied effective assistance of counsel under the
Sixth and Fourteenth Amendments [when his] trial counsel failed to request
a lesser-included offense instruction on felony murder” and (2) “[w]hether [he]
was denied due process of law when the trial court failed to charge the jury on
the lesser-included offense . . . of felony murder.”1 We deny his request for a
COA and affirm the district court’s judgment denying him any relief.
                                                I.
      On April 14, 2001, three young men walked out of a nightclub in
Navarro County, Texas, and got into a car. Kevin Williams sat in the front
passenger seat, and Dexter McDonald sat in the right rear passenger seat.
Christopher Lane, the car’s owner, got into the driver’s seat but then got back
out to talk to someone. Shortly thereafter, Ronnie Threadgill, the petitioner,
ran up and fired two shots from a handgun. The first shot did not hit anyone.
The second shot hit McDonald. The bullet passed through McDonald’s arm
and went into his chest. Williams got out of the car. Threadgill got into the
driver’s seat and began to drive away, but he then stopped at a nearby stop
sign, pulled McDonald out of the car, left him on the ground, and got back in
the car and drove away. McDonald was taken to a hospital, where he died
from the gunshot wound.
      Threadgill was charged under Texas’s capital murder statute, Texas
Penal Code § 19.03(a)(2). At trial, Williams testified that the first shot was
fired from outside the car, and that when the second shot was fired, the

      1
          Br. in Supp. of Mot. for Certificate of Appealability 1.

                                                2
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                                        No. 09-70024

shooter “was standing outside the car, bent over into the car.” Danyel
Nellums, who was nearby when the shooting happened, testified that
McDonald was intoxicated and was sitting in the back seat with his head
leaning against the window frame. Nellums specifically denied defense
counsel’s suggestion that McDonald was lying down or stretched out on the
seat.
        Threadgill’s defense counsel did not request a jury instruction on felony
murder,2 and the district court did not give such an instruction. The jury
convicted Threadgill of capital murder.
        During the punishment phase of the trial, the prosecution introduced a
variety of evidence tending to show that Threadgill would pose a future
danger to society. See Tex. Code Crim. Proc. art. 37.071, § 2(b)(1).3 Ten
witnesses, nine of whom were law enforcement officers or public officials,
testified that they knew of Threadgill’s reputation in the community for being
peaceful and law-abiding and that it was “bad” or “very bad.” The prosecution
established that Threadgill had prior misdemeanor convictions for assault,
resisting arrest, theft, criminal trespass, criminal mischief, and possession of
marijuana, as well as prior felony convictions for possession of cocaine and

        2
        Felony murder, under Texas Penal Code § 19.02(b)(3), occurs when a person “commits
or attempts to commit a felony, other than manslaughter, and in the course of and in
furtherance of the commission or attempt, or in immediate flight from the commission or
attempt, he commits or attempts to commit an act clearly dangerous to human life that causes
the death of an individual.” Felony murder is distinct from capital murder in that it does not
require the intent to kill and does not carry the death penalty.
        3
         At the punishment phase, to determine whether Threadgill would receive a sentence
of death or life imprisonment without parole, the jury first had to decide “whether there [was]
a probability that the defendant would commit criminal acts of violence that would constitute
a continuing threat to society.” Tex. Code Crim. Proc. art. 37.071, § 2(b)(1). The state bore the
burden of proving this issue beyond a reasonable doubt. Id. § 2(c). Second, the jury had to
decide “[w]hether, taking into consideration all of the evidence, . . . there is a sufficient
mitigating circumstance or circumstances to warrant that a sentence of life imprisonment
without parole rather than a death sentence be imposed.” Id. § 2(e)(1). These two questions
are commonly known as the special issues of future dangerousness and mitigation.

                                               3
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                                   No. 09-70024

burglary. Threadgill, who was 29 years old at the time of trial, had been
incarcerated for most of the time since he had turned 18. During his
incarceration, according to law enforcement officers who testified at
sentencing, Threadgill had (1) gotten into a fight with another inmate; (2)
been disciplined for threatening other inmates; and (3) been found wearing
the wrong color jumpsuit, which could have made it easier for him to escape.
        Of particular relevance to the issue on which the district court granted
a COA, the prosecution also introduced two witnesses’ testimony indicating
that Threadgill had committed a previous shooting in Limestone County,
Texas. Threadgill had been charged with aggravated assault in connection
with that shooting, and spent approximately a year in jail before the charges
were dropped by the county attorney. The motion for dismissal, which was
introduced into evidence, cited “conflicting evidence” as the reason for
dropping the charges. The prosecution called Cassey Leon Forge, who
testified that he had seen Threadgill shoot Erik Martin in the Limestone
County incident; that he had identified Threadgill as the shooter in a photo
lineup; that he had given a statement to the police that Threadgill was the
shooter; and that he was positive about his identification of Threadgill. The
prosecution also called Limestone County Sheriff’s Department Chief Deputy
R.T. Beck, Jr., who testified that he had investigated the shooting and that
Forge was positive in his identification of Threadgill and never recanted it.
Beck also testified that most of the victims and others involved in the
Limestone County shooting incident had criminal records. On cross-
examination, the defense established that “conflicting evidence” was the
stated reason why the charge against Threadgill had been dismissed. Then,
on redirect, the following exchange took place between the prosecutor and
Beck:
        Q.    Do you have conflicting evidence in a lot of cases?

                                         4
    Case: 09-70024 Document: 00511476443 Page: 5 Date Filed: 05/12/2011

                                  No. 09-70024

      A.    Yes, sir.
      Q.    Are all cases that have conflicting evidence, are they
            dismissed?
      A.    No, sir, not that I’m aware of.
      Q.    As much as we don’t like to admit it, are sometimes cases
      dismissed because of the, who the victims are or what they’ve
      done in the past?
      MR. DUNN [defense counsel]: Objection, your Honor, relevance.
      THE COURT: I’ll overrule the objection, although I’ll, certainly
      the jury is free to draw its own conclusions with respect to
      whether the response to that question will be relevant. You may
      answer the question.
      A.    Yes, sir, I think that’s entirely possible.
      The defense called three witnesses during the punishment phase.
Threadgill’s mother testified that he had grown up in very difficult
circumstances involving poverty, instability, and violence. A clinical
psychologist, Dr. Gilda Kessner, testified about the harmful psychological
effects of Threadgill’s troubled childhood. She also testified that he had
generally behaved well in prison and that the few disciplinary incidents in
which he had been involved were minor. And a Texas prison warden gave
detailed testimony about the conditions under which Threadgill would be held
if he were given a life sentence, suggesting that it was unlikely that he would
ever be able to escape.
      The prosecution called Dr. Lisa Clayton, a psychiatrist, to rebut Dr.
Kessner. Dr. Clayton testified that in her opinion, “Mr. Threadgill will be a
future danger to society.” The state also called A.P. Merillat, an expert on
prison violence, who testified that despite the security measures in place,
there was still a significant level of violence within Texas prisons, thereby
suggesting that Threadgill could be a future danger to society even if he never
escaped from prison.

                                        5
    Case: 09-70024 Document: 00511476443 Page: 6 Date Filed: 05/12/2011

                                  No. 09-70024

      The prosecutor’s closing argument put significant emphasis on the
Limestone County shooting. He asserted that Threadgill had “shot another
guy” and criticized “prosecutors who don’t take these cases seriously and take
them to juries.” He stated that the victim in the Limestone County case was
“probably nobody” and “probably had a criminal record” and implied that this
was why the charge against Threadgill had been dropped. He urged the jury
not to act similarly. The prosecutor also emphasized Dr. Clayton’s opinion
that Threadgill would be a future danger to society; predicted that he would
likely commit future violent acts in prison; and argued that Threadgill’s hard
life was no excuse for murdering Dexter McDonald.
      The jury was presented with the two statutory special issues of future
dangerousness and mitigating circumstances. See Tex. Code Crim. Proc. art.
37.071. The jury determined that (1) there was a probability that Threadgill
would commit criminal acts of violence in the future that would constitute a
continuing threat to society, see id. § 2(b)(1); and (2) there were no mitigating
circumstances sufficient to spare Threadgill from a sentence of death, see id.
§ 2(e)(1). The trial court accordingly sentenced Threadgill to death.
      On direct appeal, Threadgill argued, inter alia, that the trial court
should have given a jury instruction on the lesser included offense of felony
murder. The Texas Court of Criminal Appeals (“TCCA”) rejected this
argument, explaining its reasoning as follows:
            The element distinguishing capital murder from felony
      murder is the intent to kill. [Fuentes v. State, 991 S.W.2d 267,
      272 (Tex. Crim. App. 1999).] Felony murder is an unintentional
      murder committed in the course of committing a felony while
      capital murder includes an intentional murder committed in the
      course of robbery. Id. To be entitled to an instruction on felony
      murder there must be some evidence that would permit a jury
      rationally to find the defendant had the intent to commit robbery
      but not to cause the death of the victim. The evidence reflects
      that appellant ran up to the car, leaned in, and fired two shots,

                                        6
    Case: 09-70024 Document: 00511476443 Page: 7 Date Filed: 05/12/2011

                                 No. 09-70024

      the second one into the backseat where the victim was seated.
      Appellant argues that some evidence suggests that the shooter
      did not even know that the victim was in the car, claiming Kevin
      Williams testified that the shots were fired from outside the car
      and that there was testimony that the victim was “slumped over”
      in the backseat. A closer look at the portion of Williams’
      testimony relied upon by appellant reflects that Williams did not
      testify the shots were fired from outside the car:
      [Prosecutor]. Okay. You said he got into the front seat and you
      were still in the car.
      [Williams]. He hadn’t got into the car yet.
      Q. You said a gun was in your face?
      A. Uh-huh.
      Q. And you were sitting in the car. Was he standing outside the
      car pointing a gun in your face?
      A. He was standing outside the car, bent over into the car.
             Although the shooter was standing outside of the car when
      he fired the shots, he was leaning into the car with his gun.
      Citing two pages of testimony, appellant also claims the evidence
      reflects that the victim was “slumped over” on the backseat.
      Review of that portion of the testimony reflects that the victim
      was intoxicated and was sitting in the backseat with his head
      leaning against or resting on the window frame. The witness
      [Nellums] denied defense counsel’s suggestion that the victim was
      lying down or stretched out on the seat. The trial court did not
      abuse its discretion in concluding that there was no evidence that
      would permit a jury rationally to find that appellant did not
      intend to kill the victim when he fired at him at close range inside
      the car.
Threadgill v. State, 146 S.W.3d 654, 665-66 (Tex. Crim. App. 2004).
Threadgill did not seek a writ of certiorari from the United States Supreme
Court.
      Concurrent with his direct appeal, Threadgill applied for a writ of
habeas corpus in state court. He argued, inter alia, that he had received
ineffective assistance of counsel because his attorneys had failed to request a

                                       7
    Case: 09-70024 Document: 00511476443 Page: 8 Date Filed: 05/12/2011

                                   No. 09-70024

jury instruction on felony murder and because they had failed to investigate
and rebut the prosecution’s evidence concerning the Limestone County
shooting. He contended that if his attorneys had reasonably investigated the
Limestone County matter, they could easily have found multiple eyewitnesses
who would have testified that he was not the shooter. The state trial court’s
findings of fact and conclusions of law rejected Threadgill’s claims. The court
determined that a felony murder instruction was not warranted by the
evidence; that Threadgill’s trial counsel acted appropriately by not focusing
their efforts on rebutting the prosecution’s evidence concerning the Limestone
County shooting; and that that evidence “was so insignificant in light of the
entire body of evidence that its admission did not prejudice [Threadgill].” The
TCCA adopted the trial court’s findings and conclusions and denied relief.
      Threadgill then filed a timely petition for a writ of habeas corpus in
federal court. The district court denied relief. Threadgill has filed a motion
for a COA as to two issues: (1) “[w]hether [he] was denied effective assistance
of counsel under the Sixth and Fourteenth Amendments [when his] trial
counsel failed to request a lesser-included offense instruction on felony
murder” and (2) “[w]hether [he] was denied due process of law when the trial
court failed to charge the jury on the lesser-included offense . . . of felony
murder.” Threadgill has also appealed concerning the one issue on which the
district court granted a COA: his claim “that he was denied effective
assistance of counsel under the Sixth and Fourteenth Amendments when his
trial counsel failed to adequately investigate and challenge the State’s use of
an extraneous offense” during the punishment phase of his trial.
                                        II.
      “A certificate of appealability may issue . . . only if the applicant has
made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). In order to make such a showing, “a petitioner must show that

                                         8
    Case: 09-70024 Document: 00511476443 Page: 9 Date Filed: 05/12/2011

                                  No. 09-70024

reasonable jurists could debate whether (or, for that matter, agree that) the
petition could have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
      A federal court “may not issue a writ of habeas corpus for a defendant
convicted under a state judgment unless the adjudication of the claim by the
state court ‘(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States; or (2) resulted in a decision that
was based on an unreasonable determination of the facts in light of the
evidence presented in the State Court proceeding.’” Riddle v. Cockrell, 288
F.3d 713, 716 (5th Cir. 2002) (quoting 28 U.S.C. § 2254(d)).
      “In a habeas corpus appeal, we review the district court’s findings of
fact for clear error and review its conclusions of law de novo, applying the
same standard of review to the state court’s decision as the district court.”
Martinez v. Johnson, 255 F.3d 229, 237 (5th Cir. 2001) (quoting Thompson v.
Cain, 161 F.3d 802, 805 (5th Cir. 1998)).
      A petitioner bringing a claim of ineffective assistance of counsel “must
demonstrate both that: (1) his counsel’s performance was deficient; and (2)
counsel’s deficient performance prejudiced his defense.” Harrison v.
Quarterman, 496 F.3d 419, 424 (5th Cir. 2007) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)). “Counsel’s performance is deficient if
it ‘fell below an objective standard of reasonableness.’” Id. (quoting
Strickland, 466 U.S. at 688). “Judicial scrutiny of counsel’s performance
must be ‘highly deferential.’” Id. (quoting Strickland, 466 U.S. at 689).
“Deficient performance results in prejudice when ‘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

                                        9
    Case: 09-70024 Document: 00511476443 Page: 10 Date Filed: 05/12/2011

                                  No. 09-70024

probability sufficient to undermine confidence in the outcome.’” Id. (quoting
Strickland, 466 U.S. at 694). “The result of a proceeding can be rendered
unreliable, and hence the proceeding itself unfair, even if the errors of counsel
cannot be shown by a preponderance of the evidence to have determined the
outcome.” Strickland, 466 U.S. at 694.
                                       III.
      Threadgill seeks a COA as to his claim that he received ineffective
assistance of counsel because at trial, his lawyers failed to request a jury
instruction on felony murder as defined by Texas Penal Code § 19.02(b)(3).
Felony murder is not a capital crime, and (as the state acknowledges) is a
lesser included offense of the type of capital murder with which Threadgill
was charged under Texas Penal Code § 19.03(a)(2). Capital murder under
§ 19.03(a)(2) occurs when “the person intentionally commits the murder in
the course of committing or attempting to commit” one of several enumerated
crimes, including robbery. Felony murder under § 19.02(b)(3) takes place
when a person “commits or attempts to commit a felony, other than
manslaughter, and in the course of and in furtherance of the commission or
attempt, or in immediate flight from the commission or attempt, he commits
or attempts to commit an act clearly dangerous to human life that causes the
death of an individual.” The difference between felony murder and capital
murder, as relevant here, is that a capital murder must have been
“intentionally” committed, per § 19.03(a)(2), whereas felony murder under
§ 19.02(b)(3) does not require the killing to have been intentional. Thus,
“[t]he element distinguishing capital murder from felony murder is intent to
kill.” Threadgill, 146 S.W.3d at 665 (citing Fuentes, 991 S.W.2d at 272).
      Threadgill cannot have received ineffective assistance of counsel on this
issue unless the evidence at trial would have actually warranted a felony
murder instruction. “A defendant is entitled to [a lesser included offense]

                                       10
    Case: 09-70024 Document: 00511476443 Page: 11 Date Filed: 05/12/2011

                                   No. 09-70024

instruction if the jury could rationally acquit the defendant on the capital
crime and convict on the non-capital crime.” Aguilar v. Dretke, 428 F.3d 526,
531 (5th Cir. 2006). Under Texas law, for a lesser included offense
instruction to be given, “there must be some evidence in the record that if the
defendant is guilty, he is guilty only of the lesser offense.” Richards v.
Quarterman, 566 F.3d 553, 568 (5th Cir. 2009). “Anything more than a
scintilla of evidence is sufficient to entitle a defendant to a lesser charge.”
Ferrel v. State, 55 S.W.3d 586, 589 (Tex. Crim. App. 2001).
      Threadgill has identified four facts (or purported facts) which, he
argues, provided an evidentiary basis so that the jury could have rationally
concluded that he was guilty only of felony murder and not capital murder.
However, these asserted facts either are not supported by the record or else
fail to support a finding that Threadgill was guilty only of felony murder, i.e.,
that he lacked the intent to kill McDonald.
      First, Threadgill highlights that Williams, the other passenger in the
car, was not shot. Williams was sitting in the front passenger seat of the car,
but he jumped out when Threadgill started shooting. It is unclear whether
Threadgill may have intended to shoot Williams, considering that he fired
two shots, only one of which hit McDonald. But even if Threadgill did not
intend to shoot Williams, that would not mean he lacked the intent to kill
McDonald.
      Second, Threadgill asserts that “the victim was shot only one time, in
the arm, when he could have been shot multiple times.” This is a misleading
characterization of the facts because although the bullet first went through
McDonald’s arm, it then entered his chest, causing his death. Therefore, the
location where McDonald was hit by the bullet does not suggest that
Threadgill was not trying to kill him. Moreover, under Texas law, “where a
deadly weapon is fired at close range and death results the law presumes an

                                        11
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                                       No. 09-70024

intent to kill.” Womble v. State, 618 S.W.2d 59, 64 (Tex. Crim. App. 1981). “It
is both a common-sense inference and an appellate presumption that a person
intends the natural consequences of his acts, and that the act of pointing a
loaded gun at someone and shooting toward that person at close range
demonstrates an intent to kill.” Ex parte Thompson, 179 S.W.3d 549, 556
n.18 (Tex. Crim. App. 2005).4 Threadgill fired a handgun at McDonald at
close range, from within the car, and hit him once; the bullet went through
his arm and into his chest, causing his death. This sequence of events
provides no basis for concluding that Threadgill did not intend the natural
consequence of his action, which was McDonald’s death.
       Third, Threadgill claims that “there was some evidence from which a
rational jury could have concluded that [he] was unaware of Mr. McDonald’s
presence in the back of the car.” The TCCA addressed this argument on
direct appeal and determined that there was no such evidence: “[T]he
testimony reflects that the victim was intoxicated and was sitting in the
backseat with his head leaning against or resting on the window frame. The
witness denied defense counsel’s suggestion that the victim was lying down or
stretched out on the seat.” Threadgill, 146 S.W.3d at 665-66. Threadgill’s
briefs fail to identify, and we have not found, any evidence in the record that
would indicate that the TCCA’s characterization of the facts was incorrect.
       Fourth, Threadgill argues that “McDonald[] was put out of the stolen
car, alive, in sight of those who could come to his aid.” But this does not
change the fact that Threadgill shot at McDonald at close range. Moreover,
the fact that Threadgill apparently preferred not to have McDonald with him

       4
            See also Godsey v. State, 719 S.W.2d 578, 581 (Tex. Crim. App. 1986) (“If a deadly
weapon is used in deadly manner, the inference is almost conclusive that he intended to
kill. . . . Naturally, the most obvious cases and the easiest ones in which to prove a specific
intent to kill, are those cases in which a firearm was used and was fired or attempted to have
been fired at a person.”).

                                              12
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                                  No. 09-70024

as he drove off in the stolen car has no bearing on whether he intended to kill
McDonald when he shot him.
      Therefore, none of Threadgill’s factual assertions and arguments
establish that there was even a scintilla of evidence from which a jury could
have rationally concluded that Threadgill did not intend the natural
consequence of his action — McDonald’s death — when he shot McDonald in
the chest at close range. Therefore, there is no reason why the trial court
should, or would, have given an instruction on felony murder if Threadgill’s
counsel had requested one. Consequently, the failure to request a felony
murder instruction does not fulfill either of the two requirements for a claim
of ineffective assistance of counsel: it did not amount to deficient
performance, and Threadgill was not prejudiced by it. It necessarily follows
that the TCCA’s denial of this claim of ineffective assistance of counsel was
not “contrary to, or an unreasonable application of, clearly established
[f]ederal law, as determined by the Supreme Court of the United States.” 28
U.S.C. § 2254(d)(1). Nor was it “based on an unreasonable determination of
the facts in light of the evidence presented in the [s]tate court proceeding.”
Id. § 2254(d)(2). We believe that this conclusion is not debatable among
reasonable jurists. See Slack, 529 U.S. at 484. Therefore, we deny
Threadgill’s request for a COA on this issue.
                                       IV.
      Threadgill argues that due process required the trial court, sua sponte,
to give a jury instruction on the lesser included offense of felony murder, even
though his counsel did not request it. This argument relies on Beck v.
Alabama, 447 U.S. 625 (1980), in which the Supreme Court reasoned as
follows:
      when the evidence unquestionably establishes that the defendant
      is guilty of a serious, violent offense — but leaves some doubt

                                        13
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                                  No. 09-70024

      with respect to an element that would justify conviction of a
      capital offense — the failure to give the jury the “third option” of
      convicting on a lesser included offense would seem inevitably to
      enhance the risk of an unwarranted conviction.
           Such a risk cannot be tolerated in a case in which the
      defendant’s life is at stake.
Id. at 637. Two years later, the Court clarified in Hopper v. Evans that “due
process requires that a lesser included offense instruction be given only when
the evidence warrants such an instruction.” 456 U.S. 605, 611 (1982).
      Under Beck and Hopper, the trial court’s failure to give a lesser
included offense instruction cannot have been a denial of due process if such
an instruction was not warranted by the evidence. For the reasons stated
above, none of the four facts (or purported facts) cited by Threadgill provides
even a scintilla of support for a finding that he did not intend to kill
McDonald. Because the evidence did not warrant an instruction on felony
murder, the lack of such an instruction was not a denial of due process.
Therefore, the TCCA’s rejection of this claim was neither contrary to, nor an
unreasonable application of, clearly established federal law. See 28 U.S.C.
§ 2254(d)(1). We do not consider this conclusion to be debatable among
reasonable jurists, see Slack, 529 U.S. at 484; accordingly, we deny Threadgill
a COA on this issue.
                                        V.
      Threadgill received a COA from the district court on the issue of
whether he was given ineffective assistance of counsel when his trial
attorneys failed to investigate and rebut the prosecution’s evidence indicating
that he had committed the Limestone County shooting.
      Threadgill argues that his attorneys failed to consult obvious sources of
information — including court files on the Limestone County shooting case,
the attorney who had defended him in that case, and the prosecutor who

                                        14
    Case: 09-70024 Document: 00511476443 Page: 15 Date Filed: 05/12/2011

                                  No. 09-70024

dropped the charges against him — which, if consulted, would have led them
to strong evidence that he was innocent of the shooting, including three
eyewitnesses who could have testified that he was not the shooter. He argues
that this deficiency in his attorneys’ performance was similar to what
occurred in Rompilla v. Beard, 545 U.S. 374 (2005), in which the Supreme
Court held that defense attorneys were ineffective when they failed to
uncover mitigating evidence that they could have easily found by looking at a
readily available court file concerning the defendant’s prior conviction. The
state counters that unlike the attorneys in Rompilla, Threadgill’s attorneys
did hire a private investigator to investigate the Limestone County shooting,
and therefore their performance was not deficient despite the investigator’s
apparent failure to look at the court file or talk to the prosecutor or the
defense attorney.
      The district court refrained from deciding whether Threadgill’s
attorneys’ performance was bad enough to amount to deficient performance
as defined under Strickland. Instead, the district court determined that
Threadgill was not prejudiced by this failure on the part of his attorneys
because there was a “mountain of adverse proof” against him on the future
dangerousness issue. We follow a similar approach.
      The prejudice element of an ineffective assistance of counsel claim
requires a claimant to “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.” Strickland, 466 U.S. at 694. A
petitioner can establish prejudice “even if the errors of counsel cannot be
shown by a preponderance of the evidence to have determined the outcome.”
Id. Yet, under 28 U.S.C. § 2254(d), we may not grant habeas relief unless we
conclude that the TCCA’s determination that Threadgill was not prejudiced

                                        15
    Case: 09-70024 Document: 00511476443 Page: 16 Date Filed: 05/12/2011

                                 No. 09-70024

was not “merely incorrect or unreasonable,” but was “objectively
unreasonable” in light of “clearly established law as determined by the
Supreme Court.” Rogers v. Quarterman, 555 F.3d 483, 488-89 (5th Cir.), cert.
denied, 130 S. Ct. 365 (2009).
      The prosecution used the evidence of the Limestone County shooting to
persuade the jury that Threadgill posed a continuing threat to society. See
Tex. Code Crim. Proc. art. 37.071, § 2(b)(1) (the court shall submit to the jury
the issue of “whether there is a probability that the defendant would commit
criminal acts of violence that would constitute a continuing threat to society”).
The prosecution was required to establish future dangerousness beyond a
reasonable doubt. Id. § 2(c).
      The Limestone County shooting was by far the most serious prior act
that was introduced against Threadgill to demonstrate his future
dangerousness. Despite the fact that the charge was officially dropped due to
“conflicting evidence,” the prosecutor’s closing argument and examination of
Deputy Beck undeniably encouraged the jury to believe that Threadgill’s
implication in the Limestone County shooting demonstrated his propensity
for violence and anti-social conduct. If defense counsel had investigated more
thoroughly, they might have presented multiple eyewitnesses whose
testimony would have questioned Threadgill’s culpability in that shooting.
Thus, Threadgill’s counsel missed the opportunity to raise serious doubts
about what was arguably the most compelling element of the prosecution’s
future dangerousness argument.
      However, in assessing whether Threadgill was prejudiced by his
counsel’s failure to adequately investigate and rebut the prosecution’s
evidence that he had committed the Limestone County shooting, we must
take into account all of the evidence that was presented to the jury regarding
Threadgill’s future dangerousness. Although the Limestone County shooting

                                       16
     Case: 09-70024 Document: 00511476443 Page: 17 Date Filed: 05/12/2011

                                        No. 09-70024

was a significant element of the prosecution’s case during the punishment
phase, the jury was aware that the charge against Threadgill had been
dropped due to “conflicting evidence.” Moreover, the prosecution also offered
a substantial amount of other evidence of future dangerousness. The jury
learned that Threadgill had previously been convicted of several offenses
including assault, resisting arrest, burglary, and criminal mischief. The jury
heard from a parade of public officials and law enforcement officers, each of
whom testified that Threadgill had a “bad” or “very bad” reputation for being
peaceful and law-abiding. The jury also heard Dr. Clayton’s opinion that
Threadgill would be a future danger to society. And, of course, the jury was
familiar with the serious crime that is the basis of this case, in which
Threadgill killed a seventeen-year-old boy in order to steal a car.
       Threadgill’s attorneys offered little evidence tending to show that he
would not be a continuing threat to society. Threadgill’s mother’s testimony
about his difficult childhood went to the issue of mitigating circumstances,
not future dangerousness.5 Dr. Kessner expressly did not address future
dangerousness; she stated on cross-examination, “I wasn’t asked to assess his
future dangerousness. I was asked to look at the mitigation issues.”6 And,
while the prison warden’s detailed testimony about security measures tended
to show that it was unlikely that Threadgill would escape if sentenced to life
in prison, the warden also acknowledged that Threadgill might still commit
violent acts while incarcerated. See Estrada v. State, 313 S.W.3d 274, 284

       5
          The question of whether “there is a sufficient mitigating circumstance or
circumstances to warrant that a sentence of life imprisonment without parole rather than a
death sentence be imposed” is a separate and distinct issue that the jury must answer if it
decides that the defendant would pose a future danger to society. Tex. Code Crim. Proc. art.
37.071, § 2(e)(1).
       6
       Threadgill’s lead trial counsel later explained, in an affidavit, that he chose not to ask
Dr. Kessner to assess future dangerousness because he thought she would opine that
Threadgill was likely to commit acts of criminal violence in the future.

                                               17
    Case: 09-70024 Document: 00511476443 Page: 18 Date Filed: 05/12/2011

                                  No. 09-70024

(Tex. Crim. App. 2010) (“[T]he future-dangerousness special issue asks a jury
to determine whether there is a probability that the defendant would
constitute a continuing threat to society ‘whether in or out of prison.’”
(quoting Muniz v. State, 851 S.W.2d 238, 250 (Tex. Crim. App. 1993))), cert.
denied, 131 S. Ct. 905 (2011).
       In light of all the evidence presented at the punishment phase, it is
possible that Threadgill’s attorneys’ failure to rebut the prosecution’s
evidence regarding the Limestone County shooting may have affected the
jury’s decision. However, considering the strength of the other evidence
against Threadgill on the future dangerousness issue, we are not persuaded
that the TCCA made an objectively unreasonable decision when it determined
that there was not a reasonable probability of a different result if Threadgill’s
trial attorneys had performed more effectively. “For purposes of [28 U.S.C.]
§ 2254(d)(1), ‘an unreasonable application of federal law is different from an
incorrect application of federal law.’” Harrington v. Richter, 131 S. Ct. 770,
786 (2011) (quoting Williams v. Taylor, 529 U.S. 362, 410 (2000)). “Even if
[we] might have reached a different conclusion as an initial matter, it was not
an unreasonable application of [Supreme Court] precedent for the [TCCA] to
conclude that [Threadgill] did not establish prejudice.” Cullen v. Pinholster,
131 S. Ct. 1388, 1411 (2011). Therefore, we affirm the district court’s denial
of relief.
                                       VI.
       For the foregoing reasons, Threadgill’s motion for a COA is DENIED,
and the district court’s decision to deny Threadgill a writ of habeas corpus is
AFFIRMED.

                                       18


510 U.S. 870
Mobleyv.Georgia.
No. 93-5008.
Supreme Court of United States.
October 4, 1993.

1
Appeal from the Sup. Ct. Ga.

2
Certiorari denied. Reported below: 262 Ga. 808, 426 S. E. 2d 150.


Filed 7/18/16 P. v. Medina CA2/6

               NOT TO BE PUBLISHED IN THE 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

                                  SECOND APPELLATE DISTRICT

                                                DIVISION SIX

THE PEOPLE,                                                                  2d Crim. No. B253317
                                                                          (Super. Ct. No. 2009024052)
     Plaintiff and Respondent,                                                 (Ventura County)

v.

ALEX JOSEPH MEDINA,

     Defendant and Appellant.

                   Appellant Alex Joseph Medina, a 14-year-old Hispanic gang member,
and victim Seth Scarminach, a 16-year-old associate of a rival gang with a "White
pride" ideology, exchanged words and challenges at a party. Scarminach moved on
to another party and appellant followed him. Words were again exchanged and the
two agreed to fight. After each of them had exchanged a few punches, appellant
pulled out a large kitchen knife and stabbed Scarminach in the stomach. He then
jumped on top of his fallen victim and repeatedly stabbed him. One of the wounds
fatally penetrated all the way through Scarminach's heart, and another cut his right
carotid artery.
              A jury convicted appellant of first degree murder (Pen. Code, § 187,
subd. (a)).1 The jury also found true allegations that he (1) personally used a
deadly weapon, i.e., a knife (§ 12022, subd. (b)(1)); (2) intentionally killed the
victim while an active participant in a criminal street gang and carried out the crime
to facilitate the gang's activities (§ 190.2, subd. (a)(22)); and (3) committed the
crime for the benefit of, at the direction of, or in association with a gang (§ 186.22,
subd. (b)(1)). The trial court sentenced him to 26 years to life with the possibility of
parole.
              Appellant contends the evidence is insufficient to sustain his
conviction of first degree murder and that the court erred in failing to instruct on
lesser included offenses. He further contends that the court erred in refusing to
permit him to testify after both sides had rested and it had been decided that
instructions on manslaughter would not be given. He also asks us to examine the
sealed record of the court's in camera proceeding to determine if the court erred in
failing to order the release of Scarminach's mental health records. We affirm.
                              STATEMENT OF FACTS
                                      Prosecution
              On April 25, 2009, appellant was a member of the Ojai Surenos
Lokos (OSL), a Latino criminal street gang with allegiance to the Mexican Mafia.
The victim, 16-year-old Seth Scarminach, was a member or associate of OSL's
primary rival, the Meiners Oaks Boys (MOB) gang. OSL members adopted the
color blue as a symbol and commonly wore blue bandanas and jerseys, while MOB

        1 Unless otherwise noted, all statutory references are to the Penal Code.
Appellant was 14 years old when he committed the crime and was charged as an
adult based on allegations he personally killed the victim and acted for the benefit
of a criminal street gang (Welf. & Inst. Code, § 707, subds. (d)(2)(A) &
(d)(2)(C)(ii)). Five months after the complaint was filed, a doubt was declared as to
his mental competency and the criminal proceedings were suspended. In July 2012,
the jury found appellant competent to stand trial and the proceedings were
reinstated.
                                            2
members wore red bandanas and shoelaces. MOB members were primarily
Caucasian and wore red in part to connote "White power."
             Early that evening, Veronica Vaughan drove appellant and fellow
OSL members Rutilio "Pelon" Huerta and Gabriel "Danger" Arellano to a house
party on the east end of Ojai. Meanwhile, Scarminach went to a party in the
Arbolada neighborhood of Ojai with Eric Nestingen, Forrest Whitman, and Alex
Luna. Scarminach, Nestingen and Whitman took Ecstasy before they arrived.
Scarminach was wearing a red shirt and shoes with red shoelaces. He was also
sporting three red bandanas and intermittently wore one of them over his face.
             Appellant, Huerta, Arellano, and Vaughan left the party on the east
end and drove to the party in the Arbolada. Scarminach was sitting in the living
room with Whitman and Garret Gross when appellant entered the room with Huerta
and Arellano. Appellant asked Gross and Whitman where they were from. Gross
and Whitman each replied that they were from Ojai. Appellant then focused on
Scarminach and angrily said, "Stomps, OSL. Where the fuck are you from?"2
Scarminach responded, "I don't need to answer to you." Appellant confronted
Scarminach about the color of his clothing and referred to his shoes. Scarminach
raised his feet in the air and asked, "Do you have a problem with my shoes?" The
two began cursing at each other and Scarminach displayed a gang sign.
             Appellant and Scarminach went outside and appellant demanded,
"What do you claim." Scarminach responded, "Meiners Oaks," to which appellant
replied, "OSL 13[.]"3 Appellant and Scarminach were both agitated and prepared
to fight. Nestingen, Whitman, Luna, and Huerta all urged them not to do so.
Nestingen took Scarminach to a bedroom and told Scarminach's girlfriend, Krista

      2 Appellant's gang moniker was "Stomps" or "Stompers."
       3 Reference to the number 13, the numerical value of the letter M, connotes
respect for the Mexican Mafia.
                                         3
Petler, what had happened. Scarminach still wanted to fight appellant but Petler
was able to calm him down. When another guest asked appellant what had
happened, appellant alluded to an incident that had taken place at the skate park
earlier that day.
               Scarminach and his friends decided to go to Nestingen's house.
Nestingen invited Vaughan and several others to join them but said, "Don’t bring
the Mexicans with you." Appellant and Huerta asked Vaughan if they could go
with her. She told them they were not invited but agreed to give them a ride so long
as they did not walk into the party with her. Arellano rode with someone else.
               About 30 people attended the Meiners Oaks party, which was held in
a guest house on the same property as Nestingen's house. When appellant arrived,
Nestingen urged him and Scarminach to settle their differences. They both refused
and walked away.
               Just before 2:00 a.m., Scarminach and Petler went out on the porch.
Appellant told Huerta he wanted to talk to Scarminach. Appellant, Huerta, and
Arellano approached Scarminach and asked him to come off the porch and speak
with them. Appellant told Scarminach that he wanted to fight. Appellant asked
Scarminach where he was from and they both reiterated their gang affiliations.
Petler tried to calm everyone down but Huerta pushed her back inside the guest
house.
               Appellant and Scarminach walked toward the front of the guest house
and "square[d] off" against each other. Scarminach removed his outer shirt and
baseball cap. The two then exchanged a few punches. Scarminach—who stood six
feet and one-inch tall and weighed approximately 165 pounds—appeared to be
getting the better of appellant, who was five feet and three inches tall and weighed
about 130 pounds. Approximately 10 to 15 seconds after the first punch was
thrown, appellant pulled out a concealed knife and stabbed Scarminach in the

                                          4
stomach. When Scarminach fell to the ground, appellant jumped on top of him and
repeatedly stabbed and cut him.
              Appellant ran down the driveway toward the street, leaving a trail of
blood droplets. Appellant called his mother, Jeanine Arellanes, and asked if she
could pick him up. Arellanes drove to the location appellant had given her and
found him behind a parked car on the side of the road. She chastised him for being
out late but did not ask any questions.
              Several people at the Meiners Oaks party called 911. Nestingen told
everyone that Scarminach had been hurt and asked them to leave. Those who knew
Scarminach stayed and surrounded him as he lay on the ground. Nestingen
summoned the help of his mother, an occupational therapist, who administered CPR
to Scarminach until the paramedics arrived. When the police arrived, several
people identified appellant as the stabber.
              Scarminach died at the scene. The autopsy revealed that he had
suffered 17 cuts and 7 or 8 stab wounds, 2 of which were independently fatal. One
was a deep, jagged stab wound over the right jaw that penetrated the neck and cut
the carotid artery. The other was a five- or six-inch deep stab wound through the
chest that perforated the left lung and penetrated through the heart. Scarminach also
suffered three cuts to the back, a deep stab wound just below the neck that
penetrated muscle and bone, four stabbing and cutting wounds to the side of the
right temple, a long cut down the lower chest and waist, and a V-shaped stab wound
to the wrist. Scarminach's blood alcohol level was .07 at the time of his death and
he tested positive for Ecstasy, marijuana, and the anti-seizure medication Dilantin.
              Several hours after the killing, the police entered appellant's residence
in Meiners Oaks to conduct a probation search.4 Appellant was alone and asleep in
bed. The officers woke him up and interviewed him. During the interview,

       4 Appellant was on probation and was subject to search terms.
                                        5
appellant removed a gauze bandage from his right hand and revealed "slice" injuries
on the inside of his index and middle fingers. Appellant claimed he had suffered
the injury while climbing a chain-link fence at school. He denied being present at
the Meiners Oaks party and claimed he was at home all night. When the police
interviewed Arellanes later that day, she said appellant had called her for a ride
home the previous night and showed them where she picked him up. Arellano
initially denied he was at the Meiners Oaks party, but later admitted he was present
and witnessed the incident.
                 After appellant was arrested, the police searched his residence and
cell phone and found numerous items indicative of gang activity. In July 2009,
gang-related writings were confiscated from appellant's cell in juvenile hall,
including one in which he identified himself as "an evil-minded gangster." In
another writing he stated, "I see a red figure and I go pull the trigger," which was a
reference to MOB members. Similar writings were confiscated three months later.
In December 2009, appellant got into a fight with another MOB member. After the
two were separated, appellant yelled, "Fuck you and your homie. May your homie
rest in piss."
                 Ventura County Sheriff's Detective Steven Jenkins testified as the
prosecution's gang expert. Detective Jenkins opined that OSL was a criminal street
gang, that appellant was a member of the gang, and that he committed the crime for
the gang's benefit. When presented with a hypothetical based on the facts of the
case, Detective Jenkins said it described "a classic gang crime."
                                         Defense
                 Appellant began seeing mental health professionals when was he was
about six years old. His stepfather physically and emotionally abused him and his
mother on a regular basis. When he was 10 to 11 years old, he starting running
away from home. On one occasion, he threatened to kill himself and was placed in

                                             6
a psychiatric facility. He was frequently truant from school by age 12 and was
suspended from middle school for having a knife.
              Dr. Ellen Yoshimura, a clinical psychologist employed by the Ventura
County Behavioral Health Department, first met with appellant when he was 12
years old. She concluded that appellant was presently suffering from chronic post-
traumatic stress disorder (PTSD) and anxiety due to the abuse his stepfather had
inflicted on both him and his mother. The doctor also noted, however, that
appellant got along well with his stepfather and was very close with him. Dr.
Yoshimura began treating appellant on an ongoing basis a year after his arrest. She
maintained appellant's PTSD diagnosis throughout his treatment and later added
diagnoses of conduct disorder, obsessive-compulsive disorder (OCD), and anxiety
disorder.
              Dr. Sandor Dresnin, a psychiatrist who specializes in adolescents, first
saw appellant when he was 12 and in juvenile hall for assaulting his mother. Dr.
Dresnin treated appellant approximately 24 times over the next 6 years. Appellant's
initial diagnosis was anxiety disorder with secondary PTSD, with the latter
subsequently becoming more prominent. Dr. Dresnin subsequently added a
diagnosis of conduct disorder, which is frequently a precursor of antisocial
personality disorder. Appellant displayed symptoms of OCD and engaged in fights.
              Dr. Donald Hoagland, a psychologist, was retained by the defense to
evaluate appellant's mental status at the time of the offense. Dr. Hoagland met with
appellant approximately 12 times beginning in April 2010. Dr. Hoagland diagnosed
appellant as suffering from PTSD with dissociative features as of the date of the
offense. The doctor also diagnosed appellant with conduct disorder and OCD, and
in later 2011 added a diagnosis of Tourette's Syndrome. The diagnosis of PTSD
was based in part on appellant's claim that he had been sexually abused by a female

                                          7
family friend from around the age of four.5 Appellant had also reported
experiencing dissociative reactions since the age of five.
              Dr. Hoagland opined that appellant killed Scarminach "while he was
in a dissociative state" in that "[h]e was separated from the reality of what he was
doing, and he did not know or have awareness of what he was doing at the time. It
was a dissociation based on fear or survival." This opinion was based on appellant's
"perception" that Scarminach was lunging at him with a knife. Dr. Hoagland
acknowledged that his opinion was dependent upon unconfirmed information that
appellant had conveyed to him.
              Appellant also presented evidence of Scarminach's participation and
interest in gang culture and his affiliations with the MOB and the Demons
Motorcycle Club, the latter of which had ties to the Hell's Angels. There was also
evidence that on the afternoon before the murder, someone using Scarminach's
computer accessed appellant's social media profile.
                                       Rebuttal
              Dr. Kris Mohandie, a clinical and forensic psychologist experienced
in treating individuals suffering from PTSD and dissociative disorders, was retained
by the prosecution to evaluate appellant. Appellant refused to be evaluated. Dr.
Mohandie found no evidence that appellant was in a dissociative state or
experiencing a posttraumatic reaction when he stabbed Scarminach. The doctor
believed that appellant's claims to that effect indicated malingering. Dr. Mohandie
diagnosed appellant with a severe, childhood-onset conduct disorder that had
progressed to antisocial personality disorder by the time of trial. Appellant also
displayed characteristics of juvenile psychopathy. Dr. Mohandie also concluded

       5 Appellant made this claim for the first time in May 2012. He never told
Dr. Dresnin about any sexual abuse. Dr. Dresnin was "highly skeptical" of the
claim of abuse given the timing of the allegation and surmised that appellant "could
simply be manipulating the therapist regarding titillation, i.e., controlling or trying
to build a new case for his defense."
                                          8
that Dr. Hoagland's findings were invalid to the extent he deviated from the
standard instructions for the personality and trauma symptom inventories he
administered to appellant.
                                    DISCUSSION
                                           I.
                        Scarminach's Mental Health Records
              During pretrial discovery, it was disclosed that Scarminach was
receiving mental health treatment at the time of his death. Appellant subpoenaed
Scarminach's mental health records and moved ex parte for their release. At
appellant's request, unredacted versions of the motion, points and authorities, and
counsel's supporting declarations were filed under seal "to safeguard attorney-client
privileged communications and attorney work-product." Scarminach's mother
asserted that the records were privileged and objected to their release. (Evid. Code,
§§ 1012, 1013, subd. (c).) The Ventura County Behavioral Health Department also
objected on grounds of confidentiality. (Welf. & Inst. Code, § 5328 et seq.) The
People opposed the request and asked the court to review the records in camera to
determine whether appellant had established good cause for their release.
              The court rejected appellant's claim that the privilege had been
waived. In a written decision, the court concluded that the records were both
privileged and irrelevant to the proceedings and accordingly denied the request.
The parties were given a redacted version of the court's decision, and the unredacted
version (which includes references to privileged information contained in the
subpoenaed records and counsel's declarations) was filed under seal.
              Appellant asks us to review the sealed materials to determine whether
the court abused its discretion in refusing to release the subpoenaed records
regarding Scarminach's mental health treatment. We conclude the court had no
duty to review the subpoenaed records in camera, much less release them to
appellant. "[T]rial court[s are] not required, at the pretrial stage of the proceedings,

                                           9
to review or grant discovery of privileged information in the hands of third party
psychotherapy providers." (People v. Hammon (1997) 15 Cal.4th 1117, 1119.)
Appellant's reliance on People v. Reber (1986) 177 Cal.App.3d 523, is unavailing
because the case has been overruled on the very point for which it is offered.
(Hammon, at p. 1123; see also Rinaker v. Superior Court (1998) 62 Cal.App.4th
155, 166 [recognizing same].)
              We have reviewed the sealed materials and conclude the court did not
abuse its discretion in finding that appellant failed to show good cause for release of
the records and that the records are irrelevant and undiscoverable.
                                          II.
                 Sufficiency of the Evidence - First Degree Murder
              Appellant contends the evidence is insufficient to support his
conviction of first degree murder on either of the theories proffered by the
prosecution, i.e., that he (1) acted with premeditation and deliberation, and/or (2)
committed the crime while lying in wait. (§ 189.) We disagree.
              In reviewing claims of insufficient evidence, we examine the entire
record in the light most favorable to the judgment to determine whether there is
substantial evidence—evidence that is reasonable, credible, and of solid value—
from which a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. (People v. Maciel (2013) 57 Cal.4th 482, 514-515.) We do not
reweigh the evidence or reassess the credibility of witnesses. (People v. Houston
(2012) 54 Cal.4th 1186, 1215.) We accept the logical inferences that the jury might
have drawn from the evidence even if we would have concluded otherwise. (People
v. Streeter (2012) 54 Cal.4th 205, 241.) If the trier of fact's findings are reasonably
justified by the circumstances, the opinion of the reviewing court that a contrary
finding might also reasonably be reconciled with the circumstances does not
warrant reversing the judgment. (People v. Jones (2013) 57 Cal.4th 899, 961.)

                                          10
               "A verdict of deliberate and premeditated first degree murder requires
more than a showing of intent to kill. [Citation.] 'Deliberation' refers to careful
weighing of considerations in forming a course of action; 'premeditation' means
thought over in advance. [Citations.]" (People v. Koontz (2002) 27 Cal.4th 1041,
1080.) "'The true test is not the duration of time as much as it is the extent of the
reflection.' [Citations.] . . . '[T]houghts may follow each other with great rapidity
and cold, calculated judgment may be arrived at quickly.' [Citation.] . . . [A] killing
resulting from preexisting reflection, of any duration, is readily distinguishable from
a killing based on unconsidered or rash impulse. [Citation.]" (People v. Solomon
(2010) 49 Cal.4th 792, 813.)
               People v. Anderson (1968) 70 Cal.2d 15 (Anderson) discusses three
types of evidence that are commonly shown in cases of premeditated murder:
planning activity, preexisting motive, and manner of killing. (Id. at pp. 26-27.)
However, "Anderson did not purport to establish an exhaustive list that would
exclude all other types and combinations of evidence that could support a finding of
premeditation and deliberation. [Citation.]" (People v. Perez (1992) 2 Cal.4th
1117, 1125.)
               The evidence is sufficient to support a finding that appellant acted
with premeditation and deliberation in killing Scarminach. Detective Jenkins
accurately described it as "a classic gang crime." Motive can be inferred from the
fact that the murder was gang-related. (See People v. Gonzales (2011) 52 Cal.4th
254, 295; People v. Sandoval (1992) 4 Cal.4th 155, 175.) Appellant's plan to
commit the crime can be inferred from the evidence that he and Scarminach had
encountered each other earlier that day, the manner in which he sought out
Scarminach and repeatedly approached him to solicit an altercation, and the fact
that he armed himself with a knife. (See People v. Romero (2008) 44 Cal.4th 386,
401 [defendant's decision to arm himself with a weapon supported inference that he
planned to use it to kill rival gang members, such that he could be found to have

                                           11
acted with premeditation and deliberation].) Finally, the manner in which appellant
committed the killing—which included cutting Scarminach's throat and inflicting
other wounds that were plainly calculated to result in his death— amply supports
the finding that he acted with premeditation and deliberation. (See People v.
Hernandez (1988) 47 Cal.3d 315, 350 ["calculated" rather than "random" manner of
killing may support finding of premeditated murder]; Anderson, supra, 70 Cal.2d at
p. 27 ["exacting" manner of killing is indicative of premeditation].)
              In light of our conclusion that the evidence is sufficient to support the
finding that appellant killed Scarminach with premeditation and deliberation, we
need not decide whether the evidence supports a finding that he committed the
crime while lying in wait. (People v. Sandoval (2015) 62 Cal.4th 394, 424.)
                                          III.
                            Alleged Instructional Errors
                                          A.
                              Voluntary Manslaughter
              Appellant claims the court erred in refusing to instruct the jury on
voluntary manslaughter based on sudden quarrel/heat of passion. We conclude
otherwise.
              In a criminal matter, a trial court must instruct the jury on general
principles of law relevant to issues raised by the evidence. (People v. Walker
(2015) 237 Cal.App.4th 111, 114.) This requirement includes instructing a jury on
a lesser included offense "if there is substantial evidence from which a jury could
reasonably conclude that the defendant committed the lesser, uncharged offense but
not the greater, charged offense. [Citation.]" (People v. Thomas (2012) 53 Cal.4th
771, 813.) There must be some basis, "'other than an unexplainable rejection of
prosecution evidence, on which the jury could find the offense to be less than that
charged.' [Citations.]" (Walker, at p. 117.) The obligation to instruct on lesser
included offenses applies even absent a request from the defendant for an

                                          12
instruction and over a defendant's express objection to an instruction. (Id. at p.
115.) But the court has no duty "to instruct on theories that have no such
evidentiary support. [Citation.]" (People v. Smith (2013) 57 Cal.4th 232, 240.)
              A defendant who commits an intentional and unlawful killing lacks
malice when the defendant acts as a result of a sudden quarrel or heat of passion.
(People v. Moye (2009) 47 Cal.4th 537, 549 (Moye).) Such heat of passion or
provocation is a "'theor[y] of partial exculpation' that reduce[s] murder to
manslaughter by negating the element of malice [Citation.]" (Ibid.)
              "The heat of passion requirement for manslaughter has both an
objective and a subjective component. [Citation.] The defendant must actually,
subjectively, kill under the heat of passion. [Citation.] But the circumstances
giving rise to the heat of passion are also viewed objectively." (People v. Steele
(2002) 27 Cal.4th 1230, 1252.) "'"To satisfy the objective or 'reasonable person'
element of this form of voluntary manslaughter, the accused's heat of passion must
be due to 'sufficient provocation.'" [Citation.]' [Citation.]" (Moye, supra, 47
Cal.4th at p. 549.) "'The provocative conduct by the victim may be physical or
verbal, but the conduct must be sufficiently provocative that it would cause an
ordinary person of average disposition to act rashly or without due deliberation and
reflection. [Citations.]' [Citation.]" (Id. at p. 550.) Since the test is an objective
one, a defendant's particular susceptibilities are irrelevant. (People v. Oropeza
(2007) 151 Cal.App.4th 73, 83.) "'[N]o defendant may set up his own standard of
conduct and justify or excuse himself because in fact his passions were aroused,
unless further the jury believe that the facts and circumstances were sufficient to
arouse the passions of the ordinarily reasonable man.' [Citation.]" (Steele, supra, at
pp. 1252-1253.)
              During the jury instructions conference, the parties agreed that the
jury should be instructed on voluntary manslaughter because, as the court put it,
"the jurors could find that it's a killing where there's an intent to kill but where

                                            13
there's no malice aforethought." The prosecutor objected, however, to defense
counsel's request that the jury also be instructed on provocation (CALCRIM No.
522) and sudden quarrel/heat of passion (CALCRIM No. 570). The prosecutor
asserted that these instructions were unwarranted because there was no evidence
that appellant was either provoked or had killed Scarminach because of a sudden
quarrel or while in the heat of passion. The court reserved its ruling as to both
proffered instructions.
              When the parties reconvened a few days later, the prosecutor
withdrew its request for a voluntary manslaughter instruction "unless the court finds
that one of the requested instructions, imperfect self-defense provocation or heat of
passion[,] is appropriate." The court replied that it was disinclined to give any of
the three instructions because "there is no evidence in this record at all of what the
state of mind of the defendant was." Defense counsel complained that "there was
an agreement that voluntary [manslaughter] was going to be given, albeit it was on
a different theory." After giving defense counsel additional time to research the
issue, the court formally declined to instruct the jury on voluntary manslaughter or
sudden quarrel/heat of passion. The court noted "a failure to proof of a normal
component of heat of passion on these facts" and reasoned that "[m]utual consent to
have a fight because the people involved are from different gangs" did not support a
theory of voluntary manslaughter. The jury was, however, instructed on
provocation as it related to the determination whether appellant was guilty of first or
second degree murder.6
              The court did not err in refusing to instruct on voluntary manslaughter
or sudden quarrel/heat of passion. As appellant acknowledges, our Supreme Court

       6 The jury was instructed in accordance with CALCRIM No. 522 as follows:
"Provocation may reduce a murder from first degree to second degree. The weight
and significance of the provocation, if any, are for you to decide. [¶] If you
conclude that the defendant committed murder but was provoked, consider the
provocation in deciding whether the crime was first or second degree murder."
                                          14
has repeatedly "rejected arguments that insults or gang-related challenges would
induce sufficient provocation in an ordinary person to merit an instruction on
voluntary manslaughter. [Citations.]" (People v. Enraca (2012) 53 Cal.4th 735,
759.) He nevertheless purports to distinguish the instant case on the ground that
"the altercation progressed well beyond verbal posturing and manifested into a
physical fight."
              If anything, the circumstances provide further support for our
conclusion that instructions on voluntary manslaughter were properly refused.
"'The provocation which incites the defendant to homicidal conduct in the heat of
passion must be caused by the victim [citation], or be conduct reasonably believed
by the defendant to have been engaged in by the victim.' [Citation.] '[T]he victim
must taunt the defendant or otherwise initiate the provocation.' [Citations.]"
(People v. Avila (2009) 46 Cal.4th 680, 705.) The evidence at trial demonstrated
that appellant initiated the altercation by approaching Scarminach and asking him to
identify his gang affiliation. Moreover, there was no "sudden quarrel" here.
Appellant and Scarminach each challenged the other to fight on more than one
occasion over the course of the night. After it appeared that the situation had been
defused, appellant called Scarminach aside and yet again instigated a fight. When
they finally agreed to fight, they each walked to a separate area and "squared off."
Less than 20 seconds after they began hitting each other, appellant pulled out a
knife and stabbed Scarminach. Nothing Scarminach said or did that night could
have been found by the jury to have "arouse[d] feelings of homicidal rage or
passion in an ordinarily reasonable person," such that appellant was guilty of no
more than voluntary manslaughter. (People v. Pride (1992) 3 Cal.4th 195, 250;
Avila, supra, at p. 706.)
              Appellant also asserts that the error in failing to instruct on voluntary
manslaughter had the additional consequence of violating his due process rights by
effectively removing from the jury's consideration an essential element of the crime

                                          15
of murder, i.e., the absence of provocation. This assertion, however, merely begs
the question whether there was any evidence of provocation. (See People v. Ngo
(2014) 225 Cal.App.4th 126, 158, fn. 20, italics added, citation omitted [recognizing
"that when provocation is put at issue, proof of malice requires the prosecution to
prove the absence of provocation"]; see also People v. Rios (2000) 23 Cal.4th 450,
461-462, citations omitted ["[U]nless the People's own evidence suggests that the
killing may have been provoked . . ., it is the defendant's obligation to proffer some
showing on these issues sufficient to raise a reasonable doubt of his guilt of
murder"].) Despite the fact that no such evidence was present here, appellant's
claim is belied by the fact that the jurors were instructed they could convict
appellant of second degree murder if they found he was provoked. (CALCRIM No.
522.)
                                          B.
                              Involuntary Manslaughter
              Appellant contends the court also violated a sua sponte duty to
instruct the jury on involuntary manslaughter based on the theory that appellant
suffered from a mental disorder that prevented him from forming the intent to kill.
We are not persuaded.
              Involuntary manslaughter occurs where there is an unlawful killing of
a human being without malice "in the commission of an unlawful act, not
amounting to a felony; or in the commission of a lawful act which might produce
death, in an unlawful manner, or without due caution and circumspection." (§ 192,
subd. (b).) Evidence of a mental disorder is admissible and relevant to prove that a
defendant lacked the specific intent to kill, such that he or she could be found guilty
of no more than involuntary manslaughter. (§ 28; People v. Rogers (2006) 39
Cal.4th 826, 884.)
              Dr. Hoagland's testimony that appellant committed the crime while in
a dissociative state was insufficient to require instructions on involuntary

                                          16
manslaughter. The doctor's testimony on this point was of no assistance. "[A]ny
material that forms the basis of an expert's opinion testimony must be reliable.
[Citation.] For 'the law does not accord to the expert's opinion the same degree of
credence or integrity as it does the data underlying the opinion. Like a house built
on sand, the expert's opinion is no better than the facts on which it is based.'
[Citation.]" (People v. Gardeley (1996) 14 Cal.4th 605, 618, disapproved on
another ground in People v. Sanchez (June 30, 2016) __ Cal.4th __ 2016
WL3557001, *13, fn. 13.) Dr. Hoagland's opinion is based on appellant's
inadmissible hearsay statements, and the jury was instructed that the doctor's
reliance on those statements could not be considered "as proof that the information
contained in the statements is true." (CALCRIM No. 360.) We presume the jury
understood and followed this instruction. (People v. Sanchez (2001) 26 Cal.4th
834, 852.)
              Even if the court should have instructed on involuntary manslaughter,
the error would be harmless. Under the instructions that were actually given, the
jury necessarily would have acquitted appellant had it found that he lacked the
intent to kill by reason of a mental disorder. (CALCRIM. No. 3428.) In convicting
him of first degree murder the jury found he "acted with express malice, necessarily
rejecting the view that the killing was manslaughter. Because the jury resolved the
factual finding requisite to involuntary manslaughter against [appellant], he cannot
have been prejudiced by the lack of an instruction on involuntary manslaughter
instruction [sic]. [Citation.]" (People v. Cook (2006) 39 Cal.4th 566, 597.)
                                          IV.
                        Denial of Defense Request to Reopen
              Appellant contends the court erred in denying his request to reopen
after both sides had rested so that he could testify in his own behalf. He claims the
refusal amounts to a violation of his constitutional rights to due process and a fair
trial and his right to present a defense. We are not persuaded.

                                           17
              "The decision to reopen a criminal matter to permit the introduction of
additional evidence is a matter left to the broad discretion of the trial court.
[Citations.]" (People v. Jones (2012) 54 Cal.4th 1, 66.) "In determining whether a
trial court has abused its discretion in denying a defense request to reopen, the
reviewing court considers the following factors: '(1) the stage the proceedings had
reached when the motion was made; (2) the defendant's diligence (or lack thereof)
in presenting the new evidence; (3) the prospect that the jury would accord the new
evidence undue emphasis; and (4) the significance of the evidence.' [Citation.]"
(People v. Jones (2003) 30 Cal.4th 1084, 1110 (Jones).)
              When the defense rested, the court had yet to decide whether to
instruct the jury on voluntary manslaughter based on sudden quarrel or heat of
passion. The court did not announce its decision until after both sides had rested.
Defense counsel then asked the court to allow appellant to testify, claiming she had
advised him not to do so based on the prior understanding that the jury would be
instructed on voluntary manslaughter. Counsel acknowledged, however, that there
was no prior understanding that the court would instruct on sudden quarrel/heat of
passion voluntary manslaughter and that the prosecutor had objected to any such
instructions. Counsel added that it would also be necessary to recall Dr. Hoagland
and the defense's gang expert.
              The court denied the request to reopen. In addition to pointing out
that appellant had several opportunities to testify during trial and that Dr.
Hoagland's testimony had been fatally undermined by his failure to do so, the court
also reasoned that "[t]he defendant doesn't necessarily in any case get to know what
the jury instructions are going to look like before he decides whether to testify . . . .
[¶] [L]ike any other defendant, [he] makes his decision about what evidence to put
out there and the Court decides based on the evidence that's been put out there what
the instructions are going to be. Not the other way around. . . . The instructions
follow the presentation of proof."

                                           18
              The court did not abuse its discretion. The late stage of the
proceedings plainly weighed in favor of the court's ruling. Appellant also had
ample opportunity to testify. Although defense counsel claimed she had advised
appellant not to testify based upon the parties' earlier agreement that the jury would
be instructed on voluntary manslaughter, counsel knew that the agreement related to
a theory other than sudden quarrel/heat of passion. Given the late stage of the
proceedings, there was also a danger that the jury would accord undue emphasis to
the new evidence. Finally, the significance of the evidence cannot be assessed
because counsel declined to make an offer of proof as to the substance of appellant's
proposed testimony.
              Appellant's argument that the court abused its discretion in denying
his request to reopen consists of an inapt analogy to Jones, supra, 30 Cal.4th 1084,
in which the court found an abuse of discretion in refusing to reopen after both sides
had rested, and an unsuccessful attempt to meaningfully distinguish People v.
Earley (2004) 122 Cal.App.4th 542 (Earley), in which the court found no abuse of
discretion. In Jones, the defendant merely sought to reopen in order to lay the
foundation for a photograph of a man who was also depicted in other photographs
that had been admitted into evidence, and a photograph of another man who had
actually been present in court. (Jones, supra, at p. 1110.) In reversing, the court
reasoned that reopening for such a limited purpose would not have resulted in an
undue consumption of time and that no further evidence would have been
introduced. (Id. at p. 1111.) This bears no resemblance to the instant case, which,
among other things, would have required the recalling of witnesses who had already
been excused.
              Earley is much closer to the instant case. The trial court in Earley,
like the trial court here, refused to reopen so that the defendant could testify after
both sides had rested but before the jury had been instructed. In concluding that this
ruling was not an abuse of discretion, the Court of Appeal reasoned in part that

                                           19
"[h]ad [the] defendant been permitted to testify it would have prolonged the trial
and may have required the prosecution to present rebuttal testimony from an expert
who, in turn, would first have to conduct further testing." (Earley, supra, 122
Cal.App.4th at p. 546.) Although the court also concluded that the defendant's
proffered testimony "did not propose to offer any new, particularly significant,
evidence" (ibid.), here we can only surmise as to the substance and extent of the
proposed testimony. In any event, Earley does not purport to set a benchmark for
rulings on motions to reopen to allow a defendant to testify. The decision whether
to reopen in these circumstances "is almost wholly within the discretion of the trial
judge" and "[h]is ruling must stand in the absence of a clear showing of abuse of
discretion. [Citation.]" (People v. Kohn (1968) 258 Cal.App.2d 368, 377.)
Appellant fails to make such a showing here.
                                   DISPOSITION
              The judgment is affirmed.
              NOT TO BE PUBLISHED.

                                          PERREN, J.

We concur:

              GILBERT, P. J.

              YEGAN, J.

                                          20
                               James P. Cloninger, Judge
                           Superior Court County of Ventura
                          ______________________________

             Patricia A. Scott, under appointment by the Court of Appeal, for Defendant
and Appellant.
             Kamala Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan
Pithey, Supervising Deputy Attorney General, and Robert M. Snider, Deputy Attorney
General, for Plaintiff and Respondent.