THE PEOPLE v. Eugene Edward Moore on Habeas Corpus.

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. Eugene Edward Moore, Defendant and Appellant. _ IN RE: Eugene Edward Moore on Habeas Corpus.

B222814

Decided: January 20, 2011

PETITION for writ of habeas corpus.   Writ denied.   Donald H. Glaser, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

a. The prosecution's case.

On the evening of January 13, 2009, James Espinoza was working as a loss prevention officer for the Rite Aid store at 611 East Holt Avenue in Pomona.   Espinoza saw appellant, Moore, who was wearing a black “puffy” jacket, enter the store and walk to the aisle where shampoos and lotions are displayed.   Moore “grabbed” some shampoo, placed it in his jacket, then shook it so that it went “all the way down to the [left] sleeve.”   Moore did this with several products, including “Dove Body Wash, Jergens shampoo, Pantene shampoo” and, after walking to another aisle in the store, two tubes of “Crest toothpaste.”   After placing these items in his jacket, Moore “walked straight outside” of the store.   He made no attempt to pay for the merchandise.

As Moore was placing the items in his jacket, Espinoza was calling the police.   As Moore walked out of the store, Espinoza was speaking with the police dispatch officer.   By the time Moore had walked across the street into a parking lot, police officers had arrived.

Pomona Police Officer Daniel Gomez was one of the officers who responded to Espinoza's call.   As he was driving to the store, he received a description of Moore and was told that Moore was walking across the street toward the 99 Cent Store parking lot.   As he drove into the lot, Gomez saw Moore.   He stopped, got out of his patrol car and had Moore sit on the curb while he waited for a back-up officer to arrive.   While he was waiting, Gomez, who was standing within approximately three feet of Moore, had the opportunity to observe him.   Moore did not appear to be under the influence of narcotics or alcohol.   Neither did he appear to be a person who was a danger to himself or others.

Pomona Police Officer Joe Dolgovin was on patrol when, on the evening of January 13, 2009, he received a call regarding a theft at the Rite Aid store on East Holt Avenue.   When Dolgovin arrived at the scene, Officer Gomez had already detained Moore.   Moore was sitting on the curb by the 99 Cent Store parking lot, across the street from the Rite Aid store.   After Dolgovin arrived, he took over the investigation.   Gomez, however, remained at the scene to assist Dolgovin until the on-site investigation was complete.

When Dolgovin and Gomez conducted a pat-down search for weapons, the officers found no money on Moore.   However, Dolgovin “located several items which appeared to be concealed in [Moore's] left jacket sleeve.”   Dolgovin removed the items by unzipping Moore's jacket, reaching inside and pulling them out.   He removed two tubes of Crest toothpaste, a bottle of Jergens shampoo, a bottle of Pantene shampoo and a bottle of Dove Body Wash. After the items were removed from Moore's sleeve, they were placed on the hood of a patrol car and photographed.

A short time later, Dolgovin spoke with Espinoza.   After they conversed, the officer had Espinoza come to the parking lot where Moore was being held to see if Espinoza could identify Moore as the thief.   Espinoza indicated that Moore was the man he had seen taking items from the shelves at Rite Aid and placing them in the sleeve of his jacket.   Espinoza was then shown the items which had been removed from Moore's jacket.   Espinoza identified the soap, shampoo and toothpaste as the same ones he had seen Moore take from the store.   As the items had been photographed, they were returned to Espinoza, who took them back to the Rite Aid store.

After he was identified by Espinoza, Moore was handcuffed and placed in Dolgovin's patrol car.   As he was being escorted to the car, Moore first told Dolgovin that he had not been to the Rite Aid store;  he had been visiting a friend in the 99 Cent Store.   He then told Dolgovin that he had taken the items from Rite Aid “because he had been homeless for about a week and he smelled and he wanted to clean himself up.”   Finally, he said to Dolgovin, “Man, we got to work something out.”   Dolgovin believed that, by making the last remark, Moore was “trying to work out a deal by giving [the officer] information into other crimes that he was aware of.”

At the station, Dolgovin advised Moore of his rights pursuant to Miranda.2  Moore chose to waive those rights and he told the officer that he did not have any money and “he just went to the store to take the items that he needed.”   During his conversation with Moore, Dolgovin noted that Moore did not show any signs of being under the influence of drugs or alcohol.   He did not have “[s]low, thick [or] slurred speech,” he did not have “red, watery eyes,” he was not “sweat[ing] profusely,” and he was not “unsteady on [his] feet.”   During the entire time the officer was with Moore, Moore did not act “inappropriately.”

b. Defense evidence.

Jocelyn Elaine Lemond had known Moore since 2003 or 2004.   He was her former boyfriend and, at one time, the two had lived together.   During that time, Lemond saw Moore consume “a lot” of alcoholic beverages.   Sometimes he would consume a six-pack in a day.   In addition, Lemond saw Moore use cocaine approximately three times per week.   Moore also suffered from “black out[s].”  These frequently occurred after Moore had consumed alcohol or drugs.   On one occasion, when Moore and Lemond were going to Las Vegas, Moore “blacked out” as he was driving.   According to Lemond, there were “[a] lot of other times.  [He just] would be blacked out completely, just be zoned out.”   Lemond explained, “Sometimes he'd be passed out on the floor.   Sometimes it would be just when he was drinking.   He'd just be passed out, like trauma.”   Once Moore was “on the ground” and he “flopped [around] like a fish” for “a couple of seconds.”   After the episode was over, Moore acted as though he did not know what had happened;  “[h]e had no idea.”   Throughout the five or six years they were together, Lemond saw Moore black out approximately 50 times.   Lemond and Moore broke up in 2007.   Since that time he has called her occasionally and they have spoken on the phone.   However, she has had no “face-to-face” contact with him.

Janell Moore is Moore's 20-year-old daughter.   As she was growing up, there were times when Janell 3 saw her father under the influence of alcohol or drugs.   Although these episodes were “[n]ot so common,” when Moore drank or used drugs “he would [frequently] have a little situation after[ward].”   He would “black out.”   At times, Moore would “[f]lip out.   Switch up.  [He] would switch up a whole lot.   Like a third degree.”   Do a “[t]hree sixty.”   Janell continued, “One minute he'[d] be daddy.   The next minute he'[d] be somebody else.  [¶] ․ [¶] [ ] Not as far as a bad somebody, but he wouldn't remember the situation that happened.   We [could] be hanging out and [the] next minute it's like a snap of the finger, change.  [¶] ․ [¶] He wouldn't remember.”   According to Janell, these episodes happened on a daily basis.

Forty-six-year-old Moore testified in his defense.   He stated that he has “had a problem” with drugs and alcohol since his early 20's.   In addition, he has been “in and out of trouble” and “suffered numerous felony convictions” since becoming an adult.   He has suffered “drug convictions,” a conviction for robbery, a conviction for burglary and several “theft convictions.”   He has served six prison terms.   When he is not in prison, he tends to abuse alcohol and drugs.

On the evening of January 13, 2009, Moore had spent approximately two hours drinking with a friend.   He had drunk four tall cans of “211's,” a drink consisting of approximately 8.5 percent alcohol.   In addition, Moore had smoked some PCP. He had no recollection of going into the Rite Aid store.   He did remember getting some water by a 99 Cent Store, then being “pulled up” by a police officer who made him sit down.   He could not remember whether or not he had been handcuffed;  he was “kind of, like, in and out.”   He did not recall going to the police station and giving a statement.

Moore had suffered “a lot of head trauma.”   When he was three years old, he was involved in a “drowning accident” and “was in a coma for 21 days.”   Later, he suffered a gunshot wound to the head and was “hit in the head with a hammer.”   As a result of these injuries, Moore suffers from seizures.   After a seizure, he has no recollection of what happened.   According to Moore, “Sometimes [he] just sit[s] there and black[s] out.”   Sometimes he falls.   When he falls, he is totally out of control.   Although those seizures are rare, he has had several of them.   He more frequently suffers from seizures where he simply blacks out and cannot remember what happened.   That is what happened on the evening he went to the Rite Aid store.   Moore has “no recollection” of going into the store or taking any merchandise.   He “didn't intend to do anything like that.”

Moore remembered a police officer asking him to sit down on the ground near a parking lot.   After being handcuffed, an officer took some things from his jacket and set them on the hood of a patrol car.   Moore did not tell the officer that he “wanted to work something out.”   All he remembered was being placed in a patrol car and driven to the station.   He did not remember speaking to the officer at the station.   When he drinks and “black[s] out,” Moore does not remember what he does.   He testified that he had “been told [he does] all types of things that [he doesn't] recall.”

2. Procedural history.

On February 13, 2009, Moore was charged by information with one count of petty theft with a prior in violation of section 666 and one count of second degree burglary in violation of section 459.   It was further alleged as to each count that Moore previously had been convicted of the sale or transportation of a controlled substance (Health & Saf.Code, § 11352), petty theft with a prior (§ 666), robbery (§ 211), escape from a penal institution (§ 4530, subd. (b)) and two counts of second degree burglary (§ 459), for each of which he had served a prison term within the meaning of section 667.5.   Finally, it was alleged that Moore had suffered a conviction for robbery (§ 211) within the meaning of section 1170.12, subdivisions (a) to (d) and 667, subdivisions (a ) to (i), the Three Strikes law.

At proceedings held on March 13, 2009, Moore, acting in propria persona, made a motion to set aside the information pursuant to section 995.   He initially argued that the information must be dismissed because it was based on evidence taken at the preliminary hearing at which he had testified without having been advised of his right to counsel in violation of the state and federal Constitutions and section 866.5.4  In addition, he asserted that, by giving the items which were allegedly taken from the Rite Aid store back to Espinoza, the officers had failed to preserve evidence sufficient to hold him to answer to the charges of burglary and petty theft with a prior.

The People asserted that, at the same proceedings at which the preliminary hearing had been held, Moore had made a motion to suppress evidence pursuant to section 1538.5.   A review of the record indicated that Moore had testified, not at the preliminary hearing, but only as to his motion to suppress evidence.   With regard to the preservation of evidence, the People had neither destroyed nor returned any items which would have proved exculpatory.

The trial court denied Moore's section 995 motion.   The court stated:  “I do believe that the court sufficiently delineated the fact that you were called strictly for the purpose of the 1538.5 [motion] and not for purposes of the preliminary hearing.  [¶] You have chosen to represent yourself.   There is a technicality which we uphold, and that is in spite of the fact that you are representing yourself you should be advised of your right to have counsel present when you testify at the preliminary hearing.   But that does not apply to a 1538.5.   On that ground, the 995 is denied.  [¶] And with regard to your request with regard to the preservation of evidence, that is denied as well.   [¶] ․ [¶] ․ There's just no grounds.   Your claimed grounds don't exist.   It's sufficient evidence.   If you have a problem with the sufficiency of the evidence, you try that at trial and you point out these things at trial.   But a preliminary hearing is not the proper place for that, and there's sufficient evidence in the preliminary hearing transcript[,] which I have read[,] ․ to hold you to answer.”

An amended information was filed on April 1, 2009 in which the People corrected the dates of several alleged prior convictions.   At the same proceedings, the trial court granted Moore's motion for appointment of a private investigator, granted his motion for additional ancillary funds and granted his motion for the continuance of trial.

On May 14, 2009, Moore, still acting in propria persona, filed a “renew[ed]” motion to suppress evidence pursuant to section 1538.5 and a motion to strike his alleged prior Three Strikes conviction pursuant to section 1385.   Both motions were denied.   The motion to strike Moore's prior conviction was denied due to his “criminal record.”

On May 19, 2009, Moore informed the trial court that he wished to withdraw his plea of “not guilty” and enter instead a plea of “not guilty by reason of insanity.”   Moore indicated that he believed he “was insane at the time that he [allegedly] committed the unlawful act.”   The following colloquy then occurred:  “The Court:  Do you understand the possible outcome?  [¶] [Moore]:  I do, Your Honor.  [¶] [The prosecutor]:  For the record[,] the maximum [exposure is] 13 years four months if he [is] convicted of both charges consecutive.   He has six one-year priors and he has a strike so the maximum would be 13 years four months.  [¶] The Court:  Also, Sir, do you understand that if in fact you are found not guilty by reason of insanity, you could be in custody for even longer than that time period?  [¶] [Moore]:  I understand, Your Honor.”   Given Moore's change in plea, the trial court indicated it was going to appoint two doctors to evaluate him:  Dr. Sanjay M. Sahgal and, at Moore's request, Dr. Jack Rothberg.

On January 14, 2010, the matter was called for jury trial.   Moore, now represented by counsel, moved to “bifurcate the issue of the petty theft with a prior” and “the other priors as well[.]”  The trial court granted the motion.

Before Officer Dolgovin testified, counsel for Moore requested an Evidence Code section 402 hearing.   At the hearing, Dolgovin stated that, after he had parked his patrol car and was walking toward Moore and Officer Gomez, Moore spontaneously told Dolgovin “that he wanted to work out a deal.”   He specifically stated, “ ‘Man, we got to work something out.’  “ When he made the remark, Dolgovin believed that Moore “wanted to give [the officer] information that he knew about other crimes that he was aware of in exchange for him being released.”   After making the initial remark regarding “work[ing] something out,” Moore continued to talk to the officer.   Although he was talking constantly, Moore “appeared to be coherent.”   He told Dolgovin that he had taken the items from the Rite Aid store “because he smelled and he wanted to clean himself up.”   In response to Dolgovin's inquiry, Moore told the officer that “he did not have any money when he entered the store” and that he “went in there just to take the items that he needed.”

After hearing the testimony, the trial court determined Dolgovin's statements regarding the remarks made to him by Moore were admissible at trial.   Before the jury re-entered the courtroom, the trial court pointed out that the defendant had a “right to testify to this issue if he wish[ed].”

As to his prior convictions, including those alleged with regard to the charge of petty theft with a prior in violation of section 666, Moore waived his right to a jury trial and agreed that they could be tried by the court.   The trial court asked Moore, “Do you give it up and agree that the court, ․, sitting without a jury will decide all legal and factual issues relative to those prior allegations?”   Moore responded, “Yes, Your Honor.”

Among others, the trial court gave to the jury the following instructions:  “You have received evidence regarding a ․ mental defect of the defendant at the time of the commission of the crimes charged.   You should consider this evidence solely for the purpose of determining whether the defendant actually formed the required specific intent which is an element of the crime charged.   [¶] In the crimes charged, a necessary element is the existence in the mind of the defendant of a certain specific intent.  [¶] If the evidence shows that the defendant was intoxicated at the time of the alleged crime, you should consider that fact in deciding whether defendant had the required specific intent.  [¶] If, from all the evidence, you have a reasonable doubt whether the defendant formed that specific intent, you must find that he did not have the specific intent.  [¶] Intoxication of a person is voluntary if it results from the willing use of any intoxicating liquor, drug, or other substance, knowing that it is capable of an intoxicating effect, or when he willingly assumes the risk of that effect.  [¶] ․ [¶] A person who while unconscious commits what would otherwise be a criminal act is not guilty of a crime.  [¶] This rule of law applies to persons who are not conscious of acting, but who perform acts while asleep, or while suffering from a delirium of fever, or because of an attack of psychomotor epilepsy, a blow to the head, the involuntary taking of drugs, or the involuntary consumption of intoxicating liquor or other similar cause.  [¶] Unconsciousness does not require that a person be incapable of movement.  [¶] Evidence has been received which may tend to show that the defendant was unconscious at the time and place of the commission of the alleged crime for which he is here on trial.   If, after a consideration of all the evidence, you have a reasonable doubt that the defendant was conscious at the time the alleged crime was committed, he must be found not guilty.  [¶] If the evidence establishes beyond a reasonable doubt that at the time of the commission of the alleged crime the defendant acted as if he were conscious, you should find that he was conscious, unless from all the evidence you have a reasonable doubt that the defendant was, in fact, conscious at the time of the alleged crime.  [¶] If the evidence raises a reasonable doubt that the defendant was, in fact, conscious, you must find then that he was unconscious.”

After deliberating for approximately 20 minutes, the jury found Moore guilty of “the crime of petty theft, in violation of Penal Code section 666” and guilty of “the crime of second degree burglary, in violation of Penal Code section 459.”

After the jury was excused, City of Pomona Crime Scene Investigator Tony Nguyen testified that he had compared fingerprints he had taken from Moore to exemplars from his six alleged priors.   Nguyen found that Moore's prints matched those taken in all six prior cases.   The trial court then found, “in terms of count 1, the petty with a prior[,] ․ that defendant has been convicted as alleged for those four theft-related offenses and on each occasion did serve a term of imprisonment therefore․”  In addition, with regard to the allegation that Moore had served six prior prison terms, the trial court found that the prior convictions occurred and “that there were separately served felony commitments to the state prison [for each offense] and that no five-year period existed between any of those priors wherein the defendant was both free of prison custody and the commission of the new felony offense.”   Finally, the trial court found true the “strike allegation.”

After denying defense counsel's request that it strike the Three Strikes prior pursuant to section 1385, the trial court sentenced Moore to 16 months in prison for his conviction of petty theft with a prior, then doubled the term to 32 months pursuant to the Three Strikes law.   As to his conviction of burglary, the trial court stayed imposition of sentence pursuant to section 654.   For each of the six alleged prior section 667.5 prison terms, the court imposed one year in state prison, the terms to run consecutive to the 32 months imposed for the petty theft and to each other.   In total, the trial court sentenced Moore to eight years, eight months in prison.

Moore was awarded presentence custody credit for 393 days actually served and 393 days of conduct credit, or a total of 786 days.   He was ordered to pay a $200 restitution fine (§ 1202.4, subd. (b)), a stayed $200 parole revocation restitution fine (§ 1202.45), two $30 “theft fines” (§ 1202.5), and two $30 criminal conviction assessment fees (Gov.Code, § 70373).

Moore filed a timely notice of appeal on February 9, 2010.

This court appointed counsel to represent Moore on appeal on April 9, 2010.

CONTENTIONS

After examination of the record, counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.   By notice filed September 7, 2010, the clerk of this court advised Moore to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider.   On October 4, 2010, Moore filed a supplemental brief in which he asserted that, since he entered a “dual plea of not guilty and not guilty by reason of insanity,” the trial court committed prejudicial error by not holding a “sanity proceeding” pursuant to section 1026, subdivision (a).

Section 1026, subdivision (a) provides in relevant part:  “When a defendant pleads not guilty by reason of insanity, and also joins with it another plea or pleas, the defendant shall first be tried as if only such other plea or pleas had been entered, and in that trial the defendant shall be conclusively presumed to have been sane at the time the offense is alleged to have been committed.   If the jury shall find the defendant guilty, ․, then the question [of] whether the defendant was sane or insane at the time the offense was committed shall be promptly tried, either before the same jury or before a new jury in the discretion of the court.   In that trial, the jury shall return a verdict either that the defendant was sane at the time the offense was committed or was insane at the time the offense was committed․  If the verdict or finding be that the defendant was insane at the time the offense was committed, the court, unless it shall appear to the court that the sanity of the defendant has been recovered fully, shall direct that the defendant be confined in a state hospital for the care and treatment of the mentally disordered or any other appropriate public or private treatment facility approved by the community program director․”

Here, apart from whether the trial court erred in failing to hold a “sanity” hearing after the jury found Moore guilty of petty theft and burglary, Moore suffered no prejudice.   During trial on the substantive offenses, the trial court ordered Moore evaluated by two psychiatrists, one requested by the prosecutor and one requested by Moore.   Although evidence of the doctors' findings was not presented to the jury, both doctors submitted to the court persuasive reports indicating that Moore was sane at the time he committed the charged crimes.   In his report, Dr. Jack Rothberg, the psychiatrist requested by Moore, stated that, “[u]nfortunately, there is not much evidence to support an insanity plea.   To begin with, the defendant acknowledges intensive use of alcohol and drugs which were the primary contributors to any disordered mental state at the time of the commission of the offense.   A voluntary intoxication would preclude him from pleading insanity in this case unless it can be established that even in the absence of the drugs and alcohol he consumed, he still would not have been able to appreciate the nature and consequences of his actions or their wrongfulness.   I believe that is a burden Mr. Moore would not likely meet.   Even accepting some degree of psychiatric disturbance, his clinical presentation would suggest that he would certainly be capable of understanding the nature and the consequences of his actions and their wrongfulness.   This is certainly the case, even today, and Mr. Moore acknowledges that he is not on psychotropic medication at this time, which strongly suggests that any altered mental state, even if that is to be believed, would be on the basis of voluntary intoxication, and consequently he would not have been insane at the time of the commission of the offense.”

The

In addition to the doctor's reports, there is evidence that the jury, were it to have considered Moore's sanity, would have rejected the notion he was insane at the time he committed the charged offenses.   During trial on the substantive offenses, the jury was instructed that it had “received evidence regarding a ․ mental defect of the defendant at the time of the commission of the crimes charged.”   The jury was told to “consider this evidence solely for the purpose of determining whether the defendant actually formed the required specific intent which is an element of the crime charged.”   In spite of receiving this instruction, the jury, after deliberating for only approximately 20 minutes, found Moore guilty of petty theft and burglary.

In view of the doctors' reports and the jury's verdict, there is little, if any, chance the jury would have found that Moore was insane at the time he committed the burglary and petty theft.   The trial court's failure to hold a section 1026, subdivision (a) hearing caused Moore no harm.

REVIEW ON APPEAL

We have examined the entire record and are satisfied counsel has complied fully with counsel's responsibilities.  (Smith v. Robbins (2000) 528 U.S. 259, 278-284;  People v. Wende (1979) 25 Cal.3d 436, 443.)

PETITION FOR WRIT OF HABEAS CORPUS

In his petition for writ of habeas corpus, Moore asserts:  (1) that he has “new evidence” which would undermine the prosecution's case;  and (2) that his counsel at trial was ineffective.   He prays that this court issue a writ of habeas corpus;  that this court reverse the trial court's judgment and grant him a new trial;  that this court issue an order to show cause;  or that this court grant any relief which it deems proper.

With regard to his assertion that he has “new evidence,” Moore has attached as exhibits to his petition documents which appear to be state prison medical records from 2003 and 2004.   Although many of the documents are unintelligible, at least one indicates that, at that time, Moore was under a doctor's care for a “Possible Thought Disorder,” a “Possible Mood Disorder,” and “Possible Major Depression,” and that he was being treated with a number of psychotropic medications including Seroquel and Prozac.   The record also indicates that he has a history of substance abuse, including the use of cocaine, PCP and LSD. Although a second report indicates that Moore had a history of “paranoia,” “psychosis” and “mood shifts,” it also indicates that he was cooperative and that his attention, concentration and memory were well oriented.   Yet another report, dated April 24, 2003, indicates that Moore “request[ed] to see medical to monitor Dilantin levels [and] seizure control.”

While these 2003 and 2004 records tend to corroborate testimony that Moore has a history of mental illness and seizures, they do not support his assertion that, on the evening of January 13, 2009, he suffered a “black out” which rendered him incapable of harboring the intent required to commit the alleged burglary and petty theft.   Moreover, the jury heard evidence that Moore had suffered “head trauma,” has seizures and experiences “black outs.”   It also heard Moore testify that, on the day of the offenses, he had consumed a large quantity of alcohol and some PCP. Under these circumstances, Moore suffered no prejudice as a result of the jury's failure to see the prison records.   Evidence that in 2003 and 2004 he was treated for a mood disorder, depression and seizures does not support his assertion that, in January of 2009, after consuming alcohol and PCP, his mental illness precluded him from harboring the intent required for the commission of burglary and petty theft.

Neither can it be said that Moore's trial counsel was ineffective.  “In assessing claims of ineffective assistance of trial counsel, we consider whether counsel's representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome.  [Citations.]”  (People v. Carter (2003) 30 Cal.4th 1166, 1211;  see Strickland v. Washington (1984) 466 U.S. 668, 694.)   If the defendant makes an insufficient showing with regard to either component, the claim must fail.  (People v. Holt (1997) 15 Cal.4th 619, 703.)

Here, counsel's representation was more than adequate.   Counsel did not call either Dr. Sahgal or Dr. Rothberg to testify because both men were of the opinion that, although he has a substance abuse problem and an underlying mental disorder, Moore was not insane at the time the burglary and theft were committed.   Counsel did, however, call lay witnesses who testified to Moore's history of seizures and black outs and convince the trial court that the jury should be instructed on the effect of a “mental defect” on the specific intent required as an element of each of the crimes charged.

In addition, counsel cannot be faulted for failing to present to the jury the 2003 and 2004 prison records.5  As noted above, many were unintelligible and, in any event, those which could be deciphered would not have aided Moore's cause.

Finally, counsel cannot be deemed ineffective for failing to insist that the trial court hold a sanity hearing pursuant to section 1026, subdivision (a).   In view of the doctor's reports indicating that Moore was not insane when he committed the alleged burglary and theft and the unusually brief time in which the jury reached its verdicts, there is, as noted above, virtually no chance the jury would have found Moore insane at the time the offenses were committed.

DISPOSITION

The judgment is affirmed.

The petition for writ of habeas corpus is denied.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless otherwise indicated..  FN1. All further statutory references are to the Penal Code unless otherwise indicated.

FN2. Miranda v. Arizona (1966) 384 U.S. 436..  FN2. Miranda v. Arizona (1966) 384 U.S. 436.

FN3. We refer to Janell by her first name not out of any disrespect, but for the sake of clarity..  FN3. We refer to Janell by her first name not out of any disrespect, but for the sake of clarity.

FN4. Section 866.5 provides that “[t]he defendant may not be examined at the [preliminary] examination, unless he is represented by counsel, or unless he waives his right to counsel after being advised at such examination of his right to aid of counsel.”.  FN4. Section 866.5 provides that “[t]he defendant may not be examined at the [preliminary] examination, unless he is represented by counsel, or unless he waives his right to counsel after being advised at such examination of his right to aid of counsel.”

FN5. Moore also refers to, but does not provide, records from a psychiatrist who treated him in 1998.   He claims she thoroughly explained his mental disorder and its effect on his behavior.   However, as with the records indicating his behavior and mental state in 2003 and 2004, Moore's 1998 mental condition cannot be relied on to show his mental state on the evening of January 13, 2009..  FN5. Moore also refers to, but does not provide, records from a psychiatrist who treated him in 1998.   He claims she thoroughly explained his mental disorder and its effect on his behavior.   However, as with the records indicating his behavior and mental state in 2003 and 2004, Moore's 1998 mental condition cannot be relied on to show his mental state on the evening of January 13, 2009.

KITCHING, J. ALDRICH, J.