# In Re Scott > California Supreme Court · January 27, 2003 · 129 Cal. Rptr. 2d 605 URL: https://www.frixlaw.com/law-library/cases/9797781 ## Case - **Full name:** In Re JAMES ROBERT SCOTT on Habeas Corpus - **Court:** California Supreme Court - **Decided:** January 27, 2003 - **Citations:** 129 Cal. Rptr. 2d 605; 29 Cal. 4th 783; 2003 Daily Journal DAR 991; 61 P.3d 402; 2003 Cal. Daily Op. Serv. 800; 2003 Cal. LEXIS 525 - **Precedential status:** Published - **Opinion:** Concurring in part by Kennard - **Judges:** Chin, Kennard - **Cited by:** 88 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9797781 ## How later opinions describe it (automated extraction) - noting that an expert witness “may base an opinion on reliable hearsay, including out-of-court declarations of other persons” (citation omitted) ## Opinion text KENNARD, J., Concurring and Dissenting. Iconcur in the decision discharging the alternative writ and rejecting the claim of ineffective assistance of trial counsel, but I do not join fully in the majority opinion. At issue here is whether petitioner’s trial attorney provided constitutionally ineffective assistance by not adequately investigating and presenting a mental state defense at the guilt phase, by not adequately investigating and presenting potentially mitigating evidence about his mental condition and personal history at the penalty phase, and by advising petitioner to waive trial by jury. “To establish a violation of the constitutional right to effective assistance of counsel, a defendant must show that his counsel’s performance was deficient when measured against the standard of a reasonably competent attorney, and that counsel’s performance was prejudicial in the sense that it *830 ‘so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ (Strickland v. Washington (1984) 466 U.S. 668, 686 [ 80 L.Ed.2d 674, 692-693 , 104 S.Ct. 2052 ]; id. at pp. 686-694 [80 L.Ed.2d at pp. 692-698]; see also People v. Wader (1993) 5 Cal.4th 610, 636 [ 20 Cal.Rptr.2d 788 , 854 P.2d 80 ].) If a defendant has failed to show that the challenged actions of counsel were prejudicial, a reviewing court may reject the claim on that ground without determining whether counsel’s performance was deficient. (Strickland v. Washington, supra, at p. 697 [80 L.Ed.2d at pp. 699-700].)” (People v. Kirkpatrick (1994) 7 Cal.4th 988, 1008 [ 30 Cal.Rptr.2d 818 , 874 P.2d 248 ].) On the question whether trial counsel provided ineffective assistance in not adequately investigating a mental state defense to guilt, the majority states that “it is a close question whether competent counsel was required to investigate further” (maj. opn., ante, at p. 825), but the majority finds “no prejudice in the failure to do so” (ibid.). For the reasons stated by the majority, I agree that petitioner has not shown he was prejudiced by his trial attorney’s failure to fully investigate a mental state defense to guilt. But I do not agree that the adequacy of counsel’s investigation presents a close question. Petitioner’s trial attorney knew or should have known that before the crime petitioner had ingested alcohol and drugs, including cocaine and PCP; that on the day after the crime petitioner went with his mother and his sister to surrender to the sheriff’s department; that petitioner became so agitated during his interview by sheriffs deputies that his mother was brought in to calm him; that his mother told the deputies petitioner needed psychiatric help; and that after being transported to jail petitioner was placed in four-point restraints and given Mellaril, an antipsychotic medication. With this knowledge, competent counsel should have retained a qualified mental health professional to evaluate petitioner’s mental condition at the time of the crime. Counsel should not have relied on his own impression of petitioner’s mental state during his interviews with petitioner or on the reports prepared to determine petitioner’s competence to stand trial. When counsel interviewed petitioner and when he was evaluated for competency, petitioner was no longer under the influence of illicit drugs or alcohol, and he was taking antipsychotic medication. The doctors who performed the competency examination offered no opinion on petitioner’s mental state at the time of the crime, and his competency at a later time, while on antipsychotic medication, has little or no relevance to his mental condition during the crime while possibly under the influence of alcohol and illicit drugs. On the question whether trial counsel provided ineffective assistance at the penalty phase in not adequately investigating potentially mitigating *831 evidence about petitioner’s mental condition and personal history, the majority states that “it is also a close question whether competent counsel was required to further investigate potential mitigating evidence” (maj. opn., ante, at p. 826), but the majority finds petitioner was not prejudiced by counsel’s failure to do so (id. at pp. 827-828). For the reasons that the majority has stated, I agree that petitioner has not shown he was prejudiced by his trial attorney’s failure to fully investigate potentially mitigating evidence about his mental condition and personal history. But I do not agree that the adequacy of counsel’s investigation presents a close question. As explained above, competent counsel should have retained a mental health expert to examine petitioner to determine his mental state at the time of the crime. The results of such an examination potentially could have been useful in mitigation at the penalty phase even if they did not provide a defense to guilt. Moreover, a reasonably thorough life history investigation is an essential component of defense preparation in any death penalty case. As the majority concedes, petitioner’s attorney “made little effort to elicit any mitigating evidence from petitioner or anyone else.” (Maj. opn., ante, at p. 827.) On the question whether trial counsel provided ineffective assistance in advising petitioner to waive a trial by jury, the majority states that “counsel did indeed have valid tactical reasons for advising petitioner to waive a jury: the desire to have a particular highly regarded judge decide the case, the nature of the particular jury pool from which a jury would have been selected, the nature of the proffered medical malpractice defense, and the horrific facts of the crime.” (Maj. opn., ante, at p. 828.) The soundness of these tactical considerations depends, in large measure, on whether trial counsel was justified in relying almost entirely on the medical malpractice defense, a decision this court has consistently refused to evaluate. (See People v. Scott (1997) 15 Cal.4th 1188, 1215 [ 65 Cal.Rptr.2d 240 , 939 P.2d 354 ].) Even if we assume this decision was within the broad range of reasonable tactical decisions, it is still questionable whether these tactical considerations outweighed the inherent advantages of jury trial, in which verdicts for guilt and penalty require the unanimous agreement of 12 individual jurors rather than the opinion of a single judge. I would not decide the close and difficult issue of whether counsel performed deficiently when he advised defendant to waive jury trial. Rather, I would reject this effective assistance claim on the ground that petitioner has not shown he was prejudiced by trial counsel’s decision to have the case tried to the court without a jury. In other words, I conclude that petitioner *832 has not shown a reasonable probability that he would have obtained a more favorable guilt or penalty verdict had the case been tried to a jury with the additional evidence that petitioner presented at the reference hearing. Because petitioner has not demonstrated prejudice, I agree with the majority that he has not demonstrated denial of the constitutional right to the effective assistance of counsel at trial. Petitioner’s petition for a rehearing was denied March 19, 2003. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9797781. Public record. Not legal advice.