PEOPLE v. ACKERMAN (1991)

Petitioner filed this habeas corpus petition in conjunction with his appeal from the judgment and this court considered the appeal and related petition together.   Because the claim of ineffective assistance of counsel raised in the petition appears dispositive, we do not reach the issues presented in the appeal except as they might affect proceedings on retrial.

FACTS AND PROCEEDINGS BELOW

In August of 1987, petitioner began dating Julie Alban.   Julie and petitioner lived across the street from one another and had been acquainted from the time they were children.   Their relationship was serious and marriage was often discussed.   They took trips together:  once to Mexico and several times to Las Vegas.   When Julie was away at college, she came back every weekend to be with petitioner and her family.   Julie's father treated petitioner as his own son and hoped the two would one day “commit to each other.”   Petitioner spent a lot of time at the Albans' house playing tennis, sharing holidays, meals and often spending the night.   Petitioner spent so much time at the Albans' house, they gave petitioner a key to the house and the code for the security system.

In April of 1988, petitioner's psychiatrist prescribed Valium for his anxiety caused by a failed tennis career, a dead-end job and a serious gambling habit.   The prescription was for 30 five-milligram pills and petitioner took two per day.   Seventeen days later he obtained a second identical prescription.   On May 19, he obtained a third prescription for Valium.   By then, petitioner was taking three pills a day.

Also in May, petitioner's brother-in-law arranged for an interview for him in London with a reinsurance firm.   If accepted, he would undertake a one-year training program in London for which he would be compensated.   Petitioner looked forward to the job opportunity and made all necessary preparations for the trip.

On June 3, 1988, Julie and petitioner flew to Las Vegas.   Petitioner took with him $25,000 to $30,000 to gamble, all that remained of the proceeds from the stocks his family had given him.   Before leaving, he obtained a fourth prescription for Valium.   On this trip he took six or eight Valium pills  a day.   On the morning of June 7, he bet everything that remained of his funds—between $20,000 and $30,000—on a baseball game to be played that evening.   He arrived home in early to mid-afternoon to keep an appointment with Dr. Alban.

By then, petitioner had consumed all the Valium.   He was very anxious and nervous over the bet he had made and wanted more Valium.   His psychiatrist refused to approve another prescription because he had just been given one four days before.   Petitioner then called Dr. Joseph Alban, Julie's brother, who agreed to supply a prescription.   After picking up the prescription, he took one or two pills and went to the Albans' house.   At this point, petitioner was no longer taking the Valium on any regular schedule.   He simply took a pill whenever he felt an anxiety attack coming on.

After an early dinner together, Julie and Mrs. Alban went to a movie.   Petitioner and the senior Dr. Alban went to a meeting of the medical committee of the Los Angeles County Sheriff's Department, of which Dr. Alban was a member.   Dr. Alban took a revolver because he anticipated practicing on the sheriff's shooting range.   On the way there, petitioner took one or two Valium pills.   As they left the sheriff's station, petitioner expressed interest in the gun.   Dr. Alban opened the trunk of his car and showed petitioner his revolver as well as another gun.   Dr. Alban told petitioner the guns were loaded.

On the way home, petitioner took one or two additional Valium pills.   They returned to the Albans' house around 9:00 or 9:30 p.m. and parked the car in the garage, leaving the guns in the unlocked trunk.   They deactivated the security system and entered the house.

When Julie and her mother returned home around 10 p.m., Dr. and Mrs. Alban left to attend several election parties.   Upon returning home around midnight, the Albans reactivated the alarm.   Dr. and Mrs. Alban went straight to their bedroom and did not encounter petitioner or Julie.

When the Albans left at 10 p.m., petitioner turned on the television and learned he had lost his bet on the baseball game.   A short time later, he called his brother-in-law to discuss the potential job opportunity in London.   He reassured petitioner all arrangements had been made but informed him the trainee position salary was only $10,000 a year, an inadequate sum to meet living expenses in London.   Petitioner was very disappointed and went to Julie's bedroom to share this information with her.

Their testimonial accounts of the ensuing conversation differed.   According to Julie their conversation in her bedroom lasted two hours during  which time they argued about dating other people and broke off their relationship.   According to petitioner, the conversation lasted only five minutes and only concerned his now dismal prospects for the trainee job in London.

Petitioner testified he left Julie's room and returned to the television room.   He was very depressed and decided to take his own life.   He had lost all his money gambling and could not face his parents, and now the hope of the London job was gone too.   He then took the remaining 20–25 Valium pills and washed them down with two bottles of beer.   He then went into Julie's brother's bedroom.   As things became dark and cloudy around him, petitioner took out his wallet and sorted the contents on the bed while wondering why he was doing this.   He remembered nothing more.   His next recollection came when he awakened in the hospital and learned he had undergone open heart surgery and a splenectomy.

Meanwhile Julie had gone to sleep.   She was awakened about 7 a.m. by the sound of her bedroom door opening.   Assuming it was petitioner, Julie pretended to be asleep.   She then heard a loud noise and was thrown out of bed.   Julie instantly realized she was paralyzed from about the waist down.   She looked up and saw petitioner with a gun in his hand looking down at the floor.   He fired the gun at his chest and fell to the floor.

Julie and petitioner were taken to the same hospital.   After surgery petitioner indicated he wanted to talk to Dr. Alban.   Because of a tube in his throat, petitioner could not speak so instead wrote his responses to Dr. Alban's questions.   Petitioner wrote:  “Will you ever talk to me?   You are the most important people in my life at this point in time.”   Dr. Alban asked petitioner when he got the gun and he wrote, “Last night.”   Dr. Alban then asked why he had shot Julie.   Petitioner wrote:  “I got paranoid taking 25 Valiums and didn't know what was going on.”   At trial petitioner could not recall this exchange with Dr. Alban.

After the shooting Julie's younger brother found petitioner's empty prescription bottle for Valium on the sink in the bathroom adjacent to the bedrooms.

Dr. Malcolm Lader, a research pharmacologist in London and a specialist in benzodiazepines, testified to the likely effects of a Valium overdose.   Dr. Lader described the usual dose of Valium as five milligrams, three times a day, with about thirty milligrams daily being the upper limit.   Valium is usually calming but at higher doses can sometimes produce “paradoxical effects” such as hostility, aggression or rage.   Valium has also been known to increase depression and in some persons even lead to suicidal tendencies.    Even at therapeutic doses Valium causes some amnesia and amnesia is “invariable” in higher doses.

According to Dr. Lader, high doses of Valium can lead to a blackout in which the person appears to be acting normally, performing mechanical tasks such as driving a car, yet is not aware of what he is doing and afterward will have no memory of his actions.   Based on a hypothetical question posed by defense counsel, Dr. Lader responded if petitioner took between 20 to 25 5–milligram tablets around midnight, the dose would most likely have its peak effect 4 to 6 hours later then slowly decline.   There would be little difference in effect even eight hours later as Valium is metabolized very slowly.   Based on this hypothetical, Dr. Lader testified petitioner would have been in a blackout state at 7 a.m., capable of gross motor functions but not logical or rational thought.   He would not have been able to premeditate or deliberate the shooting and could not have formulated the intent to kill the victim.   He would not have been aware of what he was doing or even known a gun was in his hand.

Dr. David Smith, who also testified on behalf of the defense, is a physician specializing in clinical toxicology and is an expert in substance abuse and drug dependency.   He is also a researcher, lecturer, frequent expert witness and author on the subject of Valium.

Dr. Smith testified about his observations of the effects of overdoses of Valium in a variety of clinical settings.   In high doses it may produce either a coma or a blackout in which one is capable of complicated physical activities, but abstract thinking and memory are “knocked out.”   Rote, robot-like actions, such as activating and deactivating the alarm, can be repeated if familiar and done before;  but new information, or activities if never done before, cannot be absorbed.   Dr. Smith knew of a case in which a physician performed a Caesarean section while in such a state.   While in a blackout, a person may often behave in an uncharacteristic manner.   For example, a person may become violent or engage in high-risk sex.   Although the drug normally produces a calming effect, a paradoxical reaction—rage or anger—may occur with high doses or in persons who are addiction prone.

Dr. Smith opined, if a person took 25 5–milligram Valium tablets, it was virtually certain the person would pass out or blackout within 4 to 6 hours—and could blackout as soon as within a half-hour to an hour.   Pursuant to a hypothetical based on the facts of this case, Dr. Smith testified petitioner must have been in a blackout when he shot Julie if he took the Valium overdose around midnight and could not have premeditated, deliberated or intended to kill in that state.   Petitioner would have been able to deactivate the alarm, open a door, open the trunk of a car, and obtain  and shoot a gun provided he had performed these acts before, but he would have amnesia as to that period of time.   On the other hand, petitioner would not have had the ability to shoot the gun if he had never fired a gun before because learning to shoot a gun would constitute acquisition of new information which one cannot do in a blackout state.   Dr. Lader also admitted one tends to act randomly in a blackout state, thus petitioner would have been just as likely to shoot at a picture on the wall or miss any target as he was to shoot Julie.

After three days of deliberations, the jury returned a verdict of guilty of willful, deliberate and premeditated first degree attempted murder with the intent to inflict great bodily harm.   The jury also found true the firearm use allegation.

The court denied petitioner's motions for a new trial and to modify the verdict to a reduced offense.   Petitioner was sentenced to life imprisonment plus five years for the special allegations.

DISCUSSION

I. PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL.

 A criminal defendant has the right to the assistance of counsel under both the Sixth Amendment of the United States Constitution and article I, section 15 of the California Constitution.  (Strickland v. Washington (1984) 466 U.S. 668, 684–685, 104 S.Ct. 2052, 2062–2063, 80 L.Ed.2d 674;  People v. Ledesma (1987) 43 Cal.3d 171, 215–218, 233 Cal.Rptr. 404, 729 P.2d 839;  In re Cordero, (1988) 46 Cal.3d 161, 179–180, 249 Cal.Rptr. 342, 756 P.2d 1370;  People v. Pope (1979) 23 Cal.3d 412, 422, 152 Cal.Rptr. 732, 590 P.2d 859.)   This right “entitles the defendant not to some bare assistance but rather to effective assistance.   Specifically, it entitles him to the reasonably competent assistance of an attorney acting as his diligent conscientious advocate.”  (In re Cordero, supra, 46 Cal.3d at p. 180, 249 Cal.Rptr. 342, 756 P.2d 1370 citing People v. Ledesma, supra, 43 Cal.3d at p. 215, 233 Cal.Rptr. 404, 729 P.2d 839;  italics in original;  see also Strickland v. Washington, supra, 466 U.S. at p. 686, 104 S.Ct. at p. 2063;  People v. Pope, supra, 23 Cal.3d at pp. 423–424, 152 Cal.Rptr. 732, 590 P.2d 859.)   The defendant is entitled to expect before counsel undertakes to act, or not to act, he will make a rational and informed decision on strategy and tactics founded on adequate investigation and preparation.  (See, e.g., In re Hall (1981) 30 Cal.3d 408, 426, 179 Cal.Rptr. 223, 637 P.2d 690;  People v. Frierson (1979) 25 Cal.3d 142, 166, 158 Cal.Rptr. 281, 599 P.2d 587;  see also Strickland v. Washington, supra, 466 U.S. at pp. 690–691, 104 S.Ct. at pp. 2066.)

  “ ‘A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components.’ ”  (People v. Ledesma, supra, 43 Cal.3d at p. 216, 233 Cal.Rptr. 404, 729 P.2d 839, citing Strickland v. Washington, supra, 466 U.S. at p. 687, 104 S.Ct. at p. 2064;  accord People v. Fosselman (1983) 33 Cal.3d 572, 583–584, 189 Cal.Rptr. 855, 659 P.2d 1144.)  “First, the defendant must show that counsel's performance was deficient.”  (Strickland v. Washington, supra, 466 U.S. at p. 687, 104 S.Ct. at p. 2064;  accord People v. Pope, supra, 23 Cal.3d at p. 425, 152 Cal.Rptr. 732, 590 P.2d 859.)   Specifically, he must establish that “counsel's representation fell below an objective standard of reasonableness ․ under prevailing professional norms.”  (Strickland v. Washington, supra, 466 U.S. at p. 688, 104 S.Ct. at p. 2065;  accord People v. Pope, supra, 23 Cal.3d at pp. 423–425, 152 Cal.Rptr. 732, 590 P.2d 859.)   In evaluating defendant's showing we accord great deference to the tactical decisions of trial counsel in order to avoid “second-guessing counsel's tactics and chilling vigorous advocacy by tempting counsel ‘to defend himself against a claim of ineffective assistance after trial rather than to defend his client against criminal charges at trial․’ ”  (In re Cordero, supra, 46 Cal.3d at p. 180, 249 Cal.Rptr. 342, 756 P.2d 1370, quoting People v. Ledesma, supra, 43 Cal.3d at p. 216, 233 Cal.Rptr. 404, 729 P.2d 839.)   However, “deferential scrutiny of counsel's performance is limited in extent and indeed in certain cases may be altogether unjustified.  ‘[D]eference is not abdication’ [citation];  it must never be used to insulate counsel's performance from meaningful scrutiny and thereby automatically validate challenged acts or omissions.”  (Id. at p. 217, 233 Cal.Rptr. 404, 729 P.2d 839.)

 Second, a criminal defendant must also establish prejudice before he can obtain relief on an ineffective assistance claim.  (See Strickland v. Washington, supra, 466 U.S. at pp. 691–692, 104 S.Ct. at pp. 2066;  People v. Ledesma, supra, 43 Cal.3d 171, 217, 233 Cal.Rptr. 404, 729 P.2d 839;  In re Cordero, supra, 46 Cal.3d 161, 180, 249 Cal.Rptr. 342, 756 P.2d 1370;  People v. Pope, supra, 23 Cal.3d 412, 423–425, 152 Cal.Rptr. 732, 590 P.2d 859.)  “It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding․  The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.   A reasonable probability is a probability sufficient to undermine confidence in the outcome.”  (Strickland v. Washington, supra, 466 U.S. at pp. 693–694, 104 S.Ct. at pp. 2067–2068;  see People v. Ledesma, supra, 43 Cal.3d at pp. 217–218, 233 Cal.Rptr. 404, 729 P.2d 839;  In re Cordero, supra, 46 Cal.3d at p. 180, 249 Cal.Rptr. 342, 756 P.2d 1370.)

Petitioner's only defense at trial was a claim he was incapable of premeditating or deliberating because he had taken an overdose of Valium and was in a blackout state at the time of the shooting.   The only direct evidence presented at trial to support the contention petitioner took the drugs and the hour he took them consisted of petitioner's own testimony.

 Petitioner cites four errors or omissions which he claims indicate ineffective assistance of counsel at trial:  1) defense counsel's unreasonable reliance, without independent investigation, on a psychiatrist's opinion that petitioner's blood samples were untestable for the presence of Valium;  2) defense counsel failed to adequately investigate and present to the jury available scientific proof that would irrefutably demonstrate petitioner in fact ingested an overdose of Valium prior to the shooting;  3) defense counsel failed to accept the People's offer to stipulate petitioner took the drugs;  and, 4) defense counsel failed to object to, or request to strike with a proper jury admonition, that portion of the prosecution's cross-examination and rebuttal argument which highlighted the defense's failure to present scientific evidence of petitioner's blood level of Valium.

A. Defense Counsel Unreasonably Relied on a Non–Expert Opinion Petitioner's Pooled Blood Sample Was Untestable for the Presence of Valium.

 As part of his pretrial investigation, petitioner's chief defense counsel contacted the hospital where petitioner was treated to obtain medical corroboration of petitioner's overdose of Valium.   He learned the hospital still had several samples of petitioner's blood drawn on the day of the shooting as well as samples from succeeding days of hospitalization.   Petitioner's counsel also learned, however, hospital staff had pooled any unused remains of such blood samples into a single combined sample and that no blood samples drawn solely on the date of the shooting had been preserved.

Petitioner's lawyer made further inquiries of Dr. Lee Yoseloff, a psychiatrist who treated petitioner while at the hospital.   Dr. Yoseloff reported no test of the pooled sample could establish the amount of Valium in petitioner's blood on the morning of the shooting.   Dr. Yoseloff also advised the hospital had performed no tests for the presence of Valium.   Petitioner's counsel regarded Dr. Yoseloff's report as conclusive and made no further inquiries pretrial concerning the feasibility of testing the pooled sample of petitioner's blood.

At trial, Dr. Smith testified the most definitive method to confirm an overdose of Valium and its resulting blackout is to observe the person before, during and after the episode or to test the person's blood level of Valium.   The prosecutor inquired of the expert about the results of any blood tests for Valium taken in petitioner's case.   The expert was, of course, unable to respond because there were no reports of blood tests in petitioner's medical file.   The prosecutor later used the absence of scientific corroboration to attack the credibility of the defense experts and petitioner.   He argued to the jury there was no evidence at all except petitioner's testimony  he even took the drugs.   The suggestion was petitioner's defense was fabricated, or not to be believed, in the absence of this evidence.

After the trial, petitioner's defense counsel learned for the first time that petitioner's pooled blood sample could indeed be successfully tested for the presence of Valium.   A subsequent test of petitioner's blood revealed the presence of high levels of Valium and its metabolites.

In his declaration accompanying a motion for new trial, petitioner's counsel explained how he erroneously relied on Dr. Yoseloff's opinion and how he only recently managed to locate a specialist in Massachusetts who had developed a unique and “obscure” testing technique to detect the breakdown of Valium to determine when the drug was most likely ingested.¹  Petitioner's counsel argued petitioner should be granted a new trial based on the newly discovered blood test results despite his lack of diligence.   The motion was denied.

 Defense counsel's reliance on Dr. Yoseloff, a psychiatrist with no asserted expertise in the scientific testing of blood, to advise him concerning the feasibility of testing the available blood sample was a fatal lapse.   In assessing whether defense counsel's performance “fell below an objective standard of reasonableness ․ under prevailing professional norms,” the court may consider pertinent declarations of experienced attorneys.  (Strickland v. Washington, supra, 466 U.S. at p. 688, 104 S.Ct. at p. 2065;  In re Cordero, supra, 46 Cal.3d at p. 180, 249 Cal.Rptr. 342, 756 P.2d 1370;  People v. Ledesma, supra, 43 Cal.3d at pp. 200–204, 233 Cal.Rptr. 404, 729 P.2d 839;  People v. Frierson, supra, 25 Cal.3d at pp. 159–160, 158 Cal.Rptr. 281, 599 P.2d 587.)   In declarations attached to this petition, Attorneys Leslie Abramson and Howard Gillingham, both specialists in the area of criminal law, agree reasonably competent criminal counsel seeking to analyze blood samples would have consulted an expert in serology, toxicology or pharmacology.   They also view the failure of petitioner's counsel to learn of the blood testing technique for Valium until it was too late a direct result of lack of diligence.   Attorney Abramson concludes petitioner's reliance “on  the opinion of a clinical psychiatrist ․ who possessed no demonstrated expertise in drugs or drug testing, as a basis to rule out conducting any scientific testing [was] irrational and incompetent.”

Respondent appears to share this negative view of the performance of petitioner's counsel.   In justifying the trial court's denial of the new trial motion the People argue petitioner's counsel failed to demonstrate diligence in attempting to secure the “newly” discovered evidence before trial.   Respondent characterizes his failure to consult with other medical experts as “manifestly insufficient.”

Petitioner's counsel asked Dr. Yoseloff to inquire whether any testing of petitioner's blood had occurred and, if not, to find out if any samples remained that could be tested.   Petitioner's counsel chose to accept Dr. Yoseloff's negative responses to both questions without any independent verification the information was correct.   Delegation of such pretrial investigation duties with inadequate monitoring and supervision has been held to be ineffective assistance of counsel.  (In re Hall, supra, 30 Cal.3d 408, 426, 179 Cal.Rptr. 223, 637 P.2d 690.)

Of course, petitioner's counsel later discovered even pooled samples could be effectively analyzed to determine the quantity of Valium ingested as well as approximately when the drugs were taken.²

This is not one of those cases where a defense counsel's failure to obtain or present important evidence can be justified as a tactical decision.   In his declaration supporting the motion for new trial, petitioner's counsel offered only one explanation for this crucial lapse.   He allegedly relied on the seeming finality of Dr. Yoseloff's opinion because the psychiatrist had been treating petitioner during his stay at the hospital.   Petitioner's counsel  sought a new trial based on this evidence.   There is every reason to believe he would have used the test evidence reflecting heavy concentrations of Valium in appellant's blood if it had been available at the time of trial.   Accordingly, it would be specious to excuse this failure as a deliberate tactical decision rather than a crucial lapse in performance.

Based on the attorney declarations and defense counsel's own efforts after trial, it appears it was unreasonable to rely on information from one who has no expertise in blood testing.   This is especially true when the entire defense of diminished mental state rests entirely on the jury believing petitioner had in fact overdosed on Valium and was in a blackout state when the incident occurred.

B. Defense Counsel Failed to Adequately Investigate and Present to the Jury Available Scientific Proof Petitioner in Fact Ingested an Overdose of Valium Prior to the Shooting.

 The only evidence presented bearing on petitioner's Valium overdose was his own trial testimony he took 20–25 pills with 2 bottles of beer at midnight;  the note he wrote to Dr. Alban saying he “took 25 Valiums and didn't know what was going on” and the empty Valium prescription bottle.   The only evidence of when he took the drugs came from petitioner's testimony.   As previously indicated, the defense offered no scientific, objectively verifiable evidence petitioner in fact took the drugs and in fact took them hours before shooting Julie.

The failure to obtain and present scientific evidence supporting a defense the defendant took a mentally disabling chemical substance has been ruled to constitute ineffective assistance of counsel.   In People v. Frierson, supra, 25 Cal.3d 142, 158 Cal.Rptr. 281, 599 P.2d 587, the defendant's only defense was diminished capacity.   Defense counsel presented this defense supported solely by testimony of two lay witnesses defendant had taken quaalude and angel dust (PCP) the day of the murder “and that he appeared dazed or ‘spaced out.’ ”  (Id. at p. 159, 158 Cal.Rptr. 281, 599 P.2d 587.)   In his petition for a writ of habeas corpus, the petitioner pointed out no evidence was presented, expert or otherwise, regarding the intoxicating effect which his use of the drugs may have had upon his ability to form the necessary intent to rob or kill.   The court stated:  “counsel here did attempt to assert a diminished capacity defense, nevertheless it was doomed to failure in the absence of any competent evidence supporting it.

“Most importantly, the defense of diminished capacity was certainly crucial, for it represented defendant's sole defense to the serious, indeed ultimate crimes with which he was charged.”  (Id. at p. 163, 158 Cal.Rptr. 281, 599 P.2d 587;  italics in original.)   The court set aside the conviction concluding “In the present  case, we need not speculate as to the likely prejudicial effect of counsel's omissions, for counsel's failure to take reasonable investigative measures actually resulted in the presentation to the jury of an incomplete, undeveloped diminished capacity defense.   We conclude defendant was thereby deprived of his right to effective trial counsel.”   (Id. at p. 164, 158 Cal.Rptr. 281, 599 P.2d 587.)

In In re Sixto, (1989) 48 Cal.3d 1247, 259 Cal.Rptr. 491, 774 P.2d 164, defense counsel presented testimony of two psychiatrists and a psychologist in support of defendant's diminished capacity defense.   Each expert witness relied on Sixto's claim he had ingested a large quantity of alcohol and unintentionally consumed PCP which had been surreptitiously placed in his beer.   However, a test of defendant's blood taken by the police upon arrest detected no PCP and his blood was not tested for alcohol despite the defendant's claim he had consumed between 20–24 beers prior to the crime.   In his petition for a writ of habeas corpus he challenged his trial counsel's failure to have his blood tested for alcohol and counsel's failure to follow up with further blood tests that were known to more reliably determine the presence of PCP.  (Id. at pp. 1258–1261, 259 Cal.Rptr. 491, 774 P.2d 164.)   The court noted “The jury rejected the diminished capacity defense premised on petitioner's story of amnesia.  [¶] The jury rejected petitioner's story in the absence of any scientific support for his claim that he had drunk 20 beers and had involuntarily ingested PCP.  ․   As to PCP in particular, the jury had little reason to be persuaded by petitioner's version of events in the absence of the critical evidence verifying the existence of PCP in petitioner's system.   The jury might well have found petitioner's version believable had it been supported by scientific evidence.   Without such support the prosecution was able to cast doubt upon and discredit the expert testimony which was premised on the truth of petitioner's unsubstantiated story.”  (Id. at pp. 1263–1264, 259 Cal.Rptr. 491, 774 P.2d 164.)

In the case at bar, all evidence concerning when the Valium was taken and the amount taken was based on petitioner's unsubstantiated testimony.   The jury was free to reject his testimony if they found it to be unbelievable.   If the jury rejected the predicate fact of Valium ingestion, it would render irrelevant the expert testimony concerning the effect of a Valium overdose and blackout.   As in In re Sixto, because of the absence of any scientific, objectively verifiable evidence of high blood levels of Valium supporting petitioner's story, “the prosecution was able to decimate it.”  (Id. at p. 1265, 259 Cal.Rptr. 491, 774 P.2d 164.)

Since petitioner's sole defense was lack of the requisite mental state for premeditated, deliberate attempted murder due to Valium overdose, it was critical to the defense to present the best evidence available establishing  petitioner in fact consumed a large quantity of Valium prior to the incident.   It is true petitioner's defense counsel presented expert testimony which supported the defense theory petitioner would be unable to formulate the requisite mental state in a blackout state.   He also presented petitioner's own testimony he took the drugs.   However, this evidence would only be exculpatory or favorable to petitioner if the jury believed he actually took the drugs.³  “(L)imited evidence presented at trial in support of [a] ․ defense does not necessarily preclude a holding that the defense was in effect withdrawn by counsel's failure to investigate or present strong additional evidence.”  (In re Hall, supra, 30 Cal.3d at p. 428, 179 Cal.Rptr. 223, 637 P.2d 690.)

As explained in the previous section, there could be no tactical reason to exclude scientific evidence of petitioner's blood level of Valium and its metabolites.   This evidence would have at least established the minimum fact petitioner took the drugs.   The scientific evidence could also have informed the jury how much Valium petitioner ingested and approximately when petitioner took the drugs.⁴

As in Frierson, supra, and In re Sixto, supra, in the absence of any competent evidence supporting the defense, the jury rejected petitioner's unsubstantiated testimony of Valium overdose and the experts' testimony based on petitioner's testimony he was in a blackout state at the time of the incident.   Thus, counsel's failings in adequately investigating and preparing available evidence that would raise a reasonable doubt as to the necessary mental state elements left the defense presented open to a devastating attack by the prosecution.   The prosecutor indeed capitalized on that opportunity and effectively negated petitioner's only available defense.

 C. Defense Counsel Failed to Accept the Prosecution's Offer to Stipulate Petitioner Took the Drugs.

 In the course of a bench conference during trial, petitioner's counsel stated:  “I have to show that he took the drugs.   That is one of the things I want to show.   That is a fact I want to establish.”   The prosecutor indicated the fact petitioner took the drugs was not an issue in the case, “I don't think there is any issue in this case that he took the drugs.   No one is going to say he didn't take the drugs.”   When petitioner's counsel expressed some skepticism, the prosecutor emphasized:  “I am letting the court know right now.  ․   I will stipulate right now he took the drugs.”

Although he knew the defense case lacked any scientific, objective evidence petitioner actually took the drugs, petitioner's counsel inexplicably declined the prosecutor's offer to stipulate to the most critical fact supporting the defense.

According to Attorney Abramson, “[G]iven the fact that it was critical to the defense to establish that the defendant took an overdose of Valium, counsel's failure to accept the prosecution's offer to stipulate to that fact is utterly baffling.”   And because counsel's “failure to have the blood sample tested left the establishment of the key fact resting solely on the credibility of his client,” any tactical basis to justify the omission is doubtful.

While a jury is generally free to accept or reject testimony offered by the defense, with a stipulation the jury is instructed “if counsel for the parties has stipulated to any fact, you will regard that fact as being conclusively proved as to the party or parties making the stipulation.”  (CALJIC No. 1.02 (1979 Rev.);   italics added.)

The offered stipulation would have reinforced an otherwise weak defense based on petitioner's credibility and would have taken from the jury any question of whether petitioner in fact took the overdose.   As it turned out, the prosecutor reneged on his concession and vigorously argued the defense had failed to produce any scientific evidence petitioner indeed had taken Valium the night of the shooting.   Consequently, the issue of whether petitioner did or did not ingest Valium consumed the bulk of the jury's attention during their three days of deliberations.  (See infra p. 900.)

While there might have been some tactical reason for petitioner's counsel to reject the prosecution's offer to stipulate to petitioner's drug ingestion, it is not apparent in the record nor does it appear one could be seriously offered given the circumstances of this case.

 D. Defense Counsel Failed to Neutralize or Correct the Prosecutor's Attack on the Defense Case.

 Evidently taken aback by the prosecutor's sudden change of heart concerning his client's ingestion of Valium, petitioner's counsel compounded his earlier crucial lapse by failing to attempt to counter his opponent's sneak attack on this issue.

The first hint the prosecutor intended to fully exploit defense counsel's failure to stipulate petitioner took the Valium came during cross-examination of defense expert Dr. Smith.   The prosecutor asked whether petitioner's medical records provided information on petitioner's blood level for this drug.   Dr. Smith responded, “I don't recall.”   It is disputed whether the prosecutor had a good faith basis for believing such tests were done and thus for asking this question.   In any event, the question left an implication for the jury that the defense was suppressing evidence.   Yet petitioner's counsel did not object to the question.   Nor apparently did he realize the prosecutor was building a foundation to dispute petitioner's claim he had taken a large quantity of Valium before the shooting.

Then in challenging Dr. Smith's opinion petitioner was most likely in a blackout state at the time of the shooting if he took the overdose at midnight, the prosecutor attacked the credibility of petitioner by saying “Well, Doctor, with all due respect, we all know where that information [that petitioner took a Valium overdose] came from and we are not sure that is correct.”   Although petitioner's counsel did object to the prosecutor's line of questioning, once again it did not alert him to the fact the prosecution had had a change of heart and meant to put in issue the fact of petitioner's drug overdose.

Petitioner's counsel could have easily demolished the logical inference the prosecutor was trying to build for the jury through these lines of questioning.   On redirect, he could have elicited the fact the only reason no evidence of petitioner's blood level for Valium was available was because no blood tests were done.   Alternatively, petitioner's counsel could have had Dr. Yoseloff testify and explain to the jury how petitioner's blood samples had been pooled and his belief such a test was now impossible.   However, petitioner's counsel did not re-examine Dr. Smith nor was Dr. Yoseloff called to testify.

Finally, in his rebuttal argument, the prosecutor revealed his full hand.   He argued petitioner did not take the Valium.   He emphasized “there is one glaring piece of evidence that would certainly help Mr. Ackerman in this case, and that is the Valium level of the blood.  [¶] Now, [defense counsel] is  a very fine lawyer.   Do you think if he had a blood level saying that Valium was very high you would have heard about it?”   The prosecutor continued, “They certainly had access to the medical records.   You saw them all there.   So why didn't we hear about it?   Why?”  The prosecutor clearly was attempting to infer there was a blood test the defense was concealing because it would prove petitioner had not taken a substantial quantity of Valium.

Nevertheless, petitioner's counsel failed to object to this argument.   The prosecutor's argument asked the jury to assume negative inferences from the absence of evidence at trial.   Petitioner might have objected to this argument because summation “may not assume facts not in evidence or invite the jury to speculate as to unsupported inferences.”  (Malkasian v. Irwin (1964) 61 Cal.2d 738, 747, 40 Cal.Rptr. 78, 394 P.2d 822;  see also People v. Fosselman, supra, 33 Cal.3d 572, 580, 189 Cal.Rptr. 855, 659 P.2d 1144;  People v. Mendoza (1974) 37 Cal.App.3d 717, 726, 112 Cal.Rptr. 565;  People v. Williams (1971) 22 Cal.App.3d 34, 48–49, 99 Cal.Rptr. 103.)

As Attorney Abramson explained in her declaration, a reasonably competent attorney performing as a diligent advocate in these circumstances would have timely objected to the prosecutor's argument and, “given the prosecutor's previous remarks at the bench that he did not dispute the fact of the overdose, counsel may well have obtained from the judge a curative instruction to the effect that no such test was ever performed.”

The record reflects petitioner's hindsight recognition of the dangers and impropriety of this argument, but only after petitioner was convicted.   In his motion for new trial, he asserted this portion of the prosecution's argument constituted misconduct.   Of course, at that point it was too late to request a curative instruction or even to assert prosecutorial misconduct in the absence of a proper contemporaneous objection.   The failure to timely object at trial has often been viewed as evidence of ineffective assistance of trial counsel.   (See, e.g., People v. Ledesma, supra, 43 Cal.3d at p. 242, 233 Cal.Rptr. 404, 729 P.2d 839, conc. opn. of Mosk, J.;  In re Hall, supra, 30 Cal.3d 408, 179 Cal.Rptr. 223, 637 P.2d 690;  In re Cordero, supra, 46 Cal.3d 161, 249 Cal.Rptr. 342, 756 P.2d 1370.)

If the prosecutor's cross-examination of Dr. Smith did not alert petitioner's counsel to the fact petitioner's drug ingestion was going to be challenged, the prosecutor's rebuttal argument should have.   Even at that late stage, petitioner's counsel could have requested to re-open the defense case to present testimony to explain the absence of blood tests.   Alternatively, this should have prompted petitioner's counsel to secure the blood test  assay sooner rather than waiting until it was too late in a motion for new trial after petitioner's conviction.⁵

However, petitioner's counsel made no objection or motion to strike.   The jury was not admonished nor did it get a chance to hear why no blood test was ever performed.   As a result, the jury was allowed to speculate as to whether the blood tests were being suppressed as damaging to the defense or as to whether petitioner took any Valium at all.   The prosecutor's unchallenged questions and argument decimated petitioner's diminished mental state defense.

E. Considered Individually or Cumulatively, Defense Counsel's Omissions Prejudiced Petitioner's Case.

Each of the foregoing aspects of petitioner's defense neglected by counsel relates to a single, but crucial lapse in performance:  the absence of corroboration of petitioner's self-serving testimony with blood test evidence to support his claim he consumed an overdose of Valium before the shooting.   This neglect undermined petitioner's defense he took the overdose of Valium, was in a blackout state and incapable of premeditating.   Counsel's incomplete investigation deprived petitioner of relevant, independent, scientific and highly persuasive evidence demonstrating he did in fact take the overdose.   Absence of strong evidence on this point allowed the jury to reject as unbelievable petitioner's testimony as well as the experts' opinions which were premised on the truth of petitioner's testimony.   Instead of making up for the deficiency with some other compelling evidence, petitioner's counsel inexplicably declined the prosecution's offer to stipulate to petitioner's drug consumption.   He also failed to neutralize the prosecution's suggestion petitioner was lying about his Valium overdose and concealing a blood test which would prove he was lying.

No reasonably apparent tactical decisions informed these omissions by petitioner's counsel.   To the contrary, his forthright explanation in support of petitioner's new trial motion establish counsel's recognition he had erred.   The steps he took so swiftly after trial demonstrate what he, as a competent and diligent advocate, should have done from the outset.

 Declarations of two jurors submitted in support of petitioner's motion for new trial reveal the question whether petitioner actually took the Valium dominated deliberations.⁶  Juror Nemeth in his declaration states:  “Once deliberations began, there was a significant amount of discussion on the issue of Mr. Ackerman's blood tests.   In fact that subject consumed the most time during deliberations.   During his argument, the prosecutor had made a point of emphasizing that the defendant's blood test results had not been introduced.   At least 10 of the jurors stated at some point in the deliberations that Mr. Ackerman must have had a blood test on the day of the shooting and that his blood must have tested negative for the presence of Valium since the test results had not been introduced at trial.   Three or four jurors ․ stated that they disbelieved that Mr. Ackerman had taken any of the Valium, and all jurors had questions about how much Valium had been taken and when.   One or two jurors stated that they believed Mr. Ackerman had flushed some or all of the Valium down the toilet.  ․   After the verdict was read, Judge Smith invited the jurors into his chambers for a discussion about the case.   During this discussion, one of the questions asked of Judge Smith was why no blood test results had been introduced.   Judge Smith responded he didn't know.”

Juror Pomay confirms the absence of blood test evidence consumed most of the three days of deliberations:  “After the jury began deliberating, one of the principal subjects discussed was the fact that the defendant's blood test results from his hospitalization had not been produced during trial.   This was after the prosecutor had pointed out during his closing argument that the defendant had not introduced his blood test results to support his claim that he was under the influence of Valium at the time he shot Julie Alban.   The prosecutor had also asked one of the defense expert witnesses, Dr. Smith, whether he had checked the blood test results before arriving at his opinion.   Several of the jurors expressed the view during deliberations that there must have been a blood test in the hospital for the presence of drugs  and the test results must have been unfavorable to the defendant's claim because he otherwise would have produced the results at trial.   The view was also expressed that the defendant possibly had succeeded in suppressing evidence of a blood test result which was negative for Valium intoxication.   These discussions appeared to consume the largest amount of time during deliberations.”

As evidenced by these declarations, the question of whether petitioner in fact ingested a Valium overdose consumed a considerable amount of the three days of deliberations.   In the absence of strong, objectively verifiable evidence proving petitioner's drug overdose, the jurors were asked to balance the credibility and self-serving testimony of the petitioner against the vigorous argument of the prosecutor urging them to find the entire Valium overdose defense fabricated.   Without strong, competent evidence to support petitioner's testimony, the jury chose to reject his version of events as incredible.

Thus, counsel's failure to discover and present readily available evidence that would have conclusively established petitioner had taken the drugs and was most likely in a blackout state at the time of the shooting undermines confidence in petitioner's conviction for willful, premeditated and deliberate attempted murder.⁷  Had evidence of petitioner's blood Valium level been  presented to the jury, it would have been much more difficult for the jury to reject the unchallenged expert testimony petitioner was most likely in a blackout state, incapable of rational, deliberate thought and possibly in a Valium induced state of rage and hostility.   Moreover, counsel's failure to counter the prosecution's argument by at least showing no blood test had been done as of the time of trial and, according to his expert, none could be performed, misled several jurors, at least, into believing erroneously the defense was concealing an unfavorable blood test.

If petitioner's counsel had not suffered this lapse, it is more likely than not the jury would have believed the petitioner had taken a Valium overdose.   And, if the jury believed petitioner had taken the overdose at all, it is more likely than not petitioner would have been found guilty of a lesser offense than that charged.⁸  As a result, we find petitioner was prejudiced by counsel's omissions and was denied effective assistance of counsel at trial.

II. THE INSTRUCTION ON INVOLUNTARY INTOXICATION WAS PROPER.

 Because of our disposition of this case it is not necessary to address the several issues raised in the appeal.   However, because it is possible the allegation of instructional error may arise on retrial, we address that point here.

 Appellant contends the court's instruction relating voluntary intoxication to the mental state elements required for attempted willful, deliberate and premeditated murder violated his constitutional due process rights by shifting the People's burden of persuasion to the defense.   The challenged instruction as given in the present case first described the mental elements required for the charged and lesser included offenses and stated “If the evidence shows the defendant was intoxicated at the time of the alleged offense, the jury should consider his state of intoxication in determining if the defendant had such specific intent or mental state.”   The challenged portion follows:

“If from all the evidence you have a reasonable doubt whether defendant formed such specific intent or mental states, you must give the defendant the benefit of that doubt and find that he did not have such specific intent or mental states.

“Thus, if you find that the defendant was intoxicated to such an extent that you have a reasonable doubt whether he premeditated, deliberated, and reflected upon the gravity of his contemplated act, you cannot find him guilty of a willful, deliberate and premeditated attempted murder of the first degree․”  (CALJIC 4.21 (1981 Rev.).)

In support of his argument appellant cites several cases concerning mandatory or implied presumptions in which once the prosecution proved a basic fact the burden shifted to the defendant to rebut the presumption or raise a reasonable doubt as to the basic fact.  (See, e.g., People v. Roder (1983) 33 Cal.3d 491, 189 Cal.Rptr. 501, 658 P.2d 1302;  People v. Kelley (1980) 113 Cal.App.3d 1005, 170 Cal.Rptr. 392;  People v. Milham (1984) 159 Cal.App.3d 487, 205 Cal.Rptr. 688.)   These cases are inapposite as CALJIC 4.21 (1981 Rev.) does not create, and appellant does not allege it creates, a presumption at all.   This instruction did not impermissibly shift the burden of proof of intoxication to appellant, it merely instructed the jury to properly consider, and not reject out of hand, the defense evidence of appellant's intoxication from Valium.

 Appellant also suggests it was error for the court not to repeat the instruction it was the prosecution's burden to prove he formulated the requisite mental intent unaffected by his intoxication from Valium.   Initially we note, appellant made no objection to this instruction at trial, thus any contention of instructional error on appeal may be deemed waived.   (People v. Anderson (1966) 64 Cal.2d 633, 639, 51 Cal.Rptr. 238, 414 P.2d 366;  [“Defendant's contention essentially is that the instructions given needed amplification or explanation;  but since he did not request such amplification or explanation, error cannot now be predicated upon the trial court's failure to give them on its own motion.”].)

  In any event, “In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole.   We must also assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.”  (People v. Romo (1975) 47 Cal.App.3d 976, 990, 121 Cal.Rptr. 684.)   The crucial question to be answered is whether there is a reasonable probability the jury would have been misled by the instructions.   (People v. Burgener (1986) 41 Cal.3d 505, 540, 224 Cal.Rptr. 112, 714 P.2d 1251;  see also Sandstrom v. Montana (1979) 442 U.S. 510, 519, 99 S.Ct. 2450, 2457, 61 L.Ed.2d 39;  People v. Lee (1987) 43 Cal.3d 666, 674, 238 Cal.Rptr. 406, 738 P.2d 752.)  “[T]he fact that the necessary elements of a jury charge are to be found in two instructions rather than in one instruction does not, in itself, make the charge prejudicial.   The absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole.”  (People v. Burgener, supra, 41 Cal.3d at pp. 538–539, 224 Cal.Rptr. 112, 714 P.2d 1251;  internal citations deleted.)

A review of the instructions given in this case establishes the jury was informed the prosecution had to prove every element of its case beyond a reasonable doubt.   The jury was instructed pursuant to CALJIC 1.01 (1979 Rev.) to the effect the instructions should be considered as a whole.   The jury was also instructed the defendant was presumed innocent until the contrary is proven and that the People bore the burden of proving him guilty beyond a reasonable doubt.  (CALJIC 2.90 (1979 Rev.).)   They were also instructed pursuant to CALJIC 8.50 (1987 Rev.) that the burden was on the state to prove beyond a reasonable doubt each of the elements of attempted murder.   The instructions, viewed in their entirety, make clear there was no reasonable probability the jury could have been misled as to the appropriate standard.   The instructions taken as a whole indicate the prosecution's burden of proof throughout was proof beyond a reasonable doubt.

In analyzing a claim the trial court failed to instruct the jury the finding as to express malice had to be unanimous and proven beyond a reasonable doubt, the court in People v. Burgener, supra, 41 Cal.3d at p. 540, 224 Cal.Rptr. 112, 714 P.2d 1251, stated:  “The fact that the court did not specifically state that the jury's finding of express malice must meet the beyond-a-reasonable-doubt standard does not indicate that the jury could have been misled into thinking it should apply some other standard with reference to this finding.   All of the instructions given indicated that the prosecution had to prove its case beyond a reasonable doubt.   The fact that this was not explicitly reiterated in the instructions on the special finding of express malice does not suggest that the jury could have concluded that some other standard might apply.”

 Similarly, the court in this case was not required to repeat with each different instruction the burden was on the People to prove every element of  the offense.   An instruction to that effect was in fact given and the jury must be deemed to have considered it.

In sum, appellant's contention lacks merit.   The instruction on voluntary intoxication neither impermissibly shifted the burden of proof nor allowed the jury to apply a standard less than proof by the People beyond a reasonable doubt of every element constituting the crime.

CONCLUSION

In examining what happened in this trial, we have concluded the jury's verdict may have turned on an issue that would not have been an issue had petitioner's lawyer given him effective assistance of counsel.   As discussed earlier, petitioner's counsel had several opportunities before and during trial to deal with the blood test question.   He failed to do so, the prosecutor succeeded in taking full advantage of that failure, and the jury was misled.   We cannot say the jurors would have convicted petitioner of the crime of attempted first degree murder rather than a lesser charge had they known petitioner's blood actually contained high levels of Valium or even had they known no blood test had been done as of the time of the trial and an “expert” said it was not possible.   Accordingly, we must reverse.

We are sadly aware of the pain and cost of a retrial in this case.   Our review of the record tells us what happened here paralyzed a young woman for life and the trial itself was a bitter struggle between former friends.   Our duty, however, in this and every case is to insure the trial was fair—not perfectly fair—but fundamentally fair.   This one was not.

In his briefing in support of the habeas corpus petition and likewise at oral argument, petitioner requested the petition be conditionally granted.   According to this request, instead of reversing the conviction outright we are asked to allow the People the option of accepting a conviction on a reduced charge.   If the People accept this alternative, the judgment would be modified and appellant resentenced on the reduced charge.   In exercising this option, the People would surrender the right to retry appellant on the original charge.   On the other hand, according to petitioner's requested disposition, if the People did not accept the modified judgment, the conviction would be reversed fully and the People would be free to retry appellant for first degree premeditated, deliberate attempted murder.

Conditional dispositions of this nature have been ordered in other appellate cases (People v. Riederer (1990) 217 Cal.App.3d 829, 837, 266 Cal.Rptr. 355;  People v. Woods (1990) 226 Cal.App.3d 1037, 1059, 277 Cal.Rptr. 269).   However, it is not feasible to do so in this case.   In both Riederer and Woods, it was possible to identify a single specific lesser crime the jury might have convicted the defendant of had the error not been  committed.   Here, on the other hand, the legal defect goes to Ackerman's entire mental state at the time of the crime.   Had the jury heard the missing evidence of Valium ingestion and accepted the Valium “defense,” it could have returned any one of several lesser verdicts—simple attempted murder, attempted voluntary manslaughter, or assault with a firearm/deadly weapon.

Indeed in his briefing and again at oral argument, appellant's counsel asked not for reduction to a specific lesser crime, but listed all of these possible verdicts and requested this court to choose.   Appellant does not make clear what criteria we are to apply in making this choice.   Presumably appellant would like us to select the degree of offense most favorable to appellant which also is compatible with the evidence.   Or perhaps he expects us to choose the one which we deem to have most support in the evidence.

This is not our role, however.   It is one thing to conditionally reverse when there is only one possible lesser crime the jurors could have agreed on had there been no error.   It is quite another for this court to weigh the evidence and determine which of several degrees of lesser offense we will offer to the prosecution as an option in lieu of retrial of the original charge.   This is beyond the proper scope of the appellate function.

Accordingly, we decline to make a conditional grant and instead issue the writ of habeas corpus “which in effect grants a new trial” and requires the prosecuting attorney to comply with certain procedural requirements if the People elect to retry appellant on the initial charge.  (Pen.Code § 1382, subd. (b);  In re Hall (1981) 30 Cal.3d 408, 435, fn. 9, 179 Cal.Rptr. 223, 637 P.2d 690;  In re Stankewitz (1985) 40 Cal.3d 391, 403, 220 Cal.Rptr. 382, 708 P.2d 1260.)

DISPOSITION

The petition for writ of habeas corpus is granted.   The judgment of conviction is vacated and petitioner is remanded to the Superior Court of Los Angeles County with directions to set aside the judgment and verdict of conviction and to proceed consistent with this opinion.  (In re Hochberg (1970) 2 Cal.3d 870, 879, 87 Cal.Rptr. 681, 471 P.2d 1.)   Upon finality, the clerk shall remit a certified copy of this opinion and order to the superior court for filing, and respondent shall serve another copy thereof on the prosecuting attorney in conformity with Penal Code section 1382, subdivision (b).  (In re Hall, supra, 30 Cal.3d 408, 435, fn. 9, 179 Cal.Rptr. 223, 637 P.2d 690.)

FOOTNOTES

1.   “After receiving the blood sample, I analyzed it using my assay procedures.   The analysis disclosed 196 nanograms of Valium per ml in the sample.   The assay also disclosed the presence of 327 nanograms per ml of Valium's breakdown product, desmethyl diazepam.   Both of these concentrations are quite consistent with a single overdose of Valium.   Keeping in mind that the blood was collected over several days, these concentrations would be consistent with a situation where the patient had ingested 20–25 Valium tablets of five milligrams each within approximately 12 to 24 hours before the blood was drawn.   One would not expect to see these levels of both Valium and its breakdown product in blood drawn within just a short period after ingestion of Valium.”Because petitioner received substantial blood transfusions within the same period the blood samples were drawn, Dr. Greenblatt noted this would cause the Valium levels his testing detected to be “actually below” those that would result in the absence of such transfusions.

2.   Attorney Abramson states in her declaration:  “As an experiment in the course of preparing for this declaration I telephoned four experts:  ․  All four were given an identical hypothetical question based on the defense theory of the case (a dosage of 20–25 5 mg. Valium pills taken approximately seven hours before the incident), the hospitalization of the defendant, the drawing of his blood over several days, the ultimate pooling of the remnants of the samples and the non-administration of Valium by the hospital.   All were asked whether a test of the refrigerated sample could provide a ‘relevant’ result.   All responded in the affirmative.   All indicated that Valium is extremely simple to test for and remains in the blood in its original and metabolite form for at least three to seven days after ingestion.   All recommended testing the sample.   None felt that the pooling adversely [a]ffected the ability of a competent technician to perform both a qualitative (what substances are in the blood) and a quantitative (how much) analysis of the Valium content of the defendant's blood․“It took me less than two hours to determine whom to call, make contact with each person and obtain these four opinions.   I would expect any competent criminal lawyer acting with reasonable diligence to learn as much almost as easily.”Attorney Gillingham also agrees petitioner's pooled blood sample should have been tested as “there remained a high mathematical probability that testing of the pooled sample would achieve meaningful results as to the presence of Valium on the date and time of the incident.”

3.   Attorney Abramson states in her declaration:  “Jurors are much more likely to accept a diminished mental state defense when it is supported by evidence that can be objectively verified.   Therefore, in offering such a defense it is mandatory that the defendant present the most concrete independent evidence available to establish the factual foundation upon which his defense rests.   Where that defense is based on a claim of drug intoxication or overdose, proof through scientific testing of blood, urine or tissue is the first avenue to thoroughly explore.   The least favored way to proceed, and the least likely to prevail, is to rely solely on the credibility of the defendant to prove the fact of drug ingestion.”Attorney Gillingham agrees with Abramson's assessment of this particular defense and further states:  “This type of defense, which usually relies on the testimony of the defendant and his psychiatrists or other medical experts, requires a factual basis for support.   In my experience jurors have a skepticism of mental defenses in violence cases and without such a factual underpinning they will tend to disregard such a defense as being an excuse offered by the defendant.”  (Italics in original.)

4.   Apparently there are no risks involved in such blood tests.   They are performed in the strictest of confidence and neither the prosecution nor anyone else need be informed of the results.

5.   Attorney Abramson states in her declaration:“If the court had refused to give such a curative instruction, [defense counsel] should then have asked to reopen the defense case.   He could then have called Dr. Yoseloff as a rebuttal witness in this issue, since [defense counsel] believed in Dr. Yoseloff's expertise to testify to the lack of a test of the drug content in the blood and the inability to perform one.   Alternatively, at that point [defense counsel] might have quickly located and consulted a qualified expert on the issue and learned that Dr. Yoseloff was wrong and that the blood could be tested, arranged for the blood to be immediately tested and avoided the disastrous result his lack of diligent investigation of his defense wrought.”

6.   Pursuant to Evidence Code section 1150, subdivision (a), jurors are competent to testify to objective facts that occurred during deliberations which are “likely to have influenced the verdict․”  Thus, jurors may testify to “overt acts”—, such statements, conduct, conditions, or events as are “open to sight, hearing and the other senses and thus subject to corroboration”—but may not testify to “the subjective reasoning processes of the individual juror․”  (People v. Hutchinson (1969) 71 Cal.2d 342, 349–350, 78 Cal.Rptr. 196, 455 P.2d 132.)  “Among the overt acts that are admissible and to which jurors are competent to testify are statements.  [Evidence Code] Section 1150, subdivision (a), expressly allows proof of ‘statements made ․ either within or without the jury room․’ ”  (In re Stankewitz (1985) 40 Cal.3d 391, 398, 220 Cal.Rptr. 382, 708 P.2d 1260;  reaffirmed in People v. Hedgecock (1990) 51 Cal.3d 395, 418, 272 Cal.Rptr. 803, 795 P.2d 1260 [authorizing not only juror affidavits concerning juror statements during deliberations but also permitting jurors' testimony in support of a motion for new trial or in a habeas corpus proceeding.].)Consequently, these juror affidavits concerning statements made during deliberations and made part of the record may properly be considered.

7.   The People continue to contend the prosecutor conceded petitioner had taken an overdose of Valium.   They thus contend the critical issue in the case was not whether petitioner took the Valium overdose but when he ingested the drugs.   They argue petitioner presented no evidence of any test that could pinpoint the precise hour petitioner ingested the drugs.   Thus, they contend there was no proof the drugs had already been in his system sufficiently long to have affected his mental processes.   Consequently, the absence of any evidence as to his blood levels of Valium could not have affected the outcome.As an initial matter, we agree the issue at trial should have been—but was not—when petitioner took the overdose of Valium.   Because whether Valium ingestion occurred was disputed by the prosecution, the more pressing issue at trial was if petitioner took the overdose and the likely effect the overdose had on his ability to premeditate or deliberate the shooting.   The question before this court became whether defense counsel's performance was deficient for failing to present to the jury credible, competent evidence of Valium overdose and for failing to rebut the prosecution's attempts to treat petitioner's Valium overdose as a fabrication by the defense.With regard to the issue of when petitioner took the Valium overdose, unchallenged declarations of experts attached to petitioner's petition for habeas corpus indicate tests are available which can determine when Valium entered the blood stream.  (See, e.g., fns. 1 and 2, supra.)   According to these experts, drug testing routinely determines what substances are in the blood and also the quantity of the drug in the blood stream.   In the case of Valium, not only can the presence of Valium in its original form be detected but also Valium in its metabolite form as it slowly disintegrates in the blood stream over time.   Because all of petitioner's experts stated detection of Valium in its metabolite form is routinely noted in drug tests for Valium, a reasonable inference can be drawn a reasonably competent technician can determine when the drug entered the blood stream by calculating the ratio of metabolized Valium to Valium in its original form;  or alternatively, by analyzing Valium metabolites in their varying stages of decomposition.Dr. Greenblatt did a similar analysis on petitioner's pooled blood sample and determined within a twelve hour period when petitioner took the drug even though the sample was drawn from a period of three days.   Although Dr. Greenblatt was unable to determine with exactitude the precise hour the overdose occurred, that is not to say the other experts already referred to could not have provided test results within a narrower time range.The People could have presented evidence to refute petitioner's experts' evidence such drug tests were routinely available in their return to the court's order to show cause why petitioner's petition for writ of habeas corpus should not be granted.   They chose not to do so and petitioner's evidence remains unchallenged.

8.   In Attorney Gillingham's view, “it is reasonably probable that had defense counsel properly investigated and timely presented the available evidence of the presence of Valium in defendant's blood, the jury would have found the defendant not guilty of attempted willful, deliberate and premeditated murder.   Although I cannot assess what verdict the jury would have actually returned, in my opinion the most serious crime of which this defendant should and would have been convicted is attempted murder․”Attorney Abramson concurs in saying “it is reasonably probable that had defense counsel properly investigated, prepared and presented the readily available evidence of the presence of a large relative quantity of Valium and Valium metabolite in defendant's blood, thus corroborating both the defendant and the defense experts on the issue of defendant's mental state, a far different result would have been obtained.   The uncontroverted expert opinion that was presented, substantiated by this irrefutable factual evidence would, in all likelihood, have foreclosed a jury from finding the mental states necessary for attempted willful, deliberate and premeditated murder․”

JOHNSON, Associate Justice.

LILLIE, P.J., and KALIN, J.*, concur.