and tainted mushroom connections further to support a diminished actuality defense based on voluntary intoxication (alcohol, marijuana and mushrooms), and perhaps involuntary intoxication (MDMA), while simultaneously dispelling any inference he attacked Gabriel’s siblings out of revenge against Gabriel on Calkins’s behalf. Although the theory has some surface appeal and internal coherence, when considered as a whole, its individual parts are not supported by admissible evidence. Besides, Kirkpatrick had adopted a directly contrary strategy. When the prosecutor attempted to elicit information from a police witness about who “Richard” was, Kirkpatrick successfully moved to strike his comment that Richard had some connection to “an earlier Vacaville case.” She evidently believed introducing the Calkins case into Cervantes’s trial would merely help to flesh out the prosecution’s revenge theory. Kirkpatrick explained her reasons for not developing a Calkins defense: “[T]he theory that was presented at trial was just [A.P.’s] statement, and that was it. So whoever this Richard was not presented at trial or the relationship of whoever Richard was.” Kirkpatrick did not investigate who Richard was because she “was not going to give them a motive, no.” While we question how a failure to investigate can be justified by the evidence actually presented at trial, we fail to see any prejudice flowing from Kirkpatrick’s failure to investigate. We ultimately agree with her that there was no need to rebut the revenge theory because the prosecution “didn’t present anything at trial, who Richard was or Richard Calkins’s case.” In cross-examining A.P., Kirkpatrick succeeded in getting her to admit she “possibly” heard something about “Richard” on the news or read something on the Internet. Exposing the jury to that much connection to the Calkins case, but no more, tended to call into question A.P.’s testimony about Cervantes’s purported “revenge” statement. We are convinced Kirkpatrick had a strategically logical approach to dealing with the revenge theory. In closing argument, Kirkpatrick used the prosecution’s lack of evidence connecting Cervantes to “Richard” to try to convince the jury to dismiss the prosecutor’s revenge theory: “The District Attorney has said over and over again, ‘We know what his
selected Dr. Podboy, a clinical and forensic psychologist, as the preferable expert. She was specifically interested in learning from Dr. Podboy whether Cervantes had experienced alcohol-induced blackouts. By mid-August 2012, she was also in touch with Zehnder, the forensic toxicologist who testified at trial, to estimate Cervantes’s blood alcohol level at the time of the crimes. Kirkpatrick had originally planned to use Dr. Podboy to testify about the effects of alcohol on Cervantes’s mental state but decided against it for reasons we shall discuss below. Even on the first day of trial, Kirkpatrick represented to the court that she would call Dr. Podboy as an expert witness. Instead Kirkpatrick decided to use Zehnder to opine about Cervantes’s likely blood alcohol level at the time of the crimes, and to explain to the jury the likely effects on people at various and increasing blood alcohol levels. c. Weaknesses in the Voluntary Alcohol Intoxication Defense Actually Presented Could Have Been Resolved by Calling a Neuroscience Expert Cervantes claims the defense pursued by Kirkpatrick was not a viable one. He points out especially that defense counsel did not call an expert witness to testify about the effects of alcohol intoxication at Cervantes’s blood alcohol level. She did call Zehnder, but Cervantes now claims that a different expert witness, one capable of expressing an opinion on the effect of alcohol on a brain impaired as Cervantes’s is allegedly impaired, and armed with more evidence of Cervantes’s history of cognitive deficits, could have provided more helpful testimony. Cervantes suggests that, had Kirkpatrick used a neuroscience expert instead of a toxicologist, the alcohol intoxication defense would have been much more likely to succeed. A neuroscience expert could have testified that Cervantes’s alcohol consumption, coupled with Dr. Amen’s SPECT scan results and Cervantes’s mental health history, caused him to lapse into a “dissociative state” or “organic psychosis” in which he attacked the children. Indeed, Dr. Stalcup was evidently prepared to testify to that effect. He opined at the new trial hearing that even without psilocybin mushrooms,