People v. Avena (13 Cal. 4th 394, 1996)

Opinion

WERDEGAR, J.

Carlos Jaime Avena was convicted in 1980 in Los Angeles County Superior Court of the first degree murders of Manuel Solis and Miguel Vasquez. (Pen. Code, § 187; all further statutory references are to this code unless otherwise indicated.) Multiple-murder and robbery-murder special-circumstance allegations were also sustained. (§ 190.2, subd. (a)(3) & (17).) In addition, petitioner was convicted of robbery, attempted robbery, two counts of assault with a deadly weapon, and two counts of assault with intent to commit murder. (§§ 211, 664/211, 245, subd. (a), and former § 217.) The jury set the penalty at death under the 1978 death penalty law. (§ 190.1 et seq.) This appeal is automatic. (§ 1239, subd. (b).)

While the appeal in this matter was pending, defendant filed a petition for a writ of habeas corpus. We thereafter issued an order to show cause and appointed a referee to take evidence on the question of possible ineffective assistance of trial counsel with regard to defendant’s alleged use of phencyclidine (PCP) on the night of the crimes. The appeal was held in abeyance while the habeas corpus matter proceeded. We have since determined that defendant did not establish he was under the influence of PCP on the night in question, and did not otherwise demonstrate he is entitled to relief on habeas corpus. (In re Avena (1996) 12 Cal.4th 694 [49 Cal.Rptr.2d 413, 909 P.2d 1017] (hereafter Avena I).) We therefore proceed to address the issues defendant raises on direct appeal.

After due consideration of these claims, we vacate one special circumstance finding, but otherwise affirm the guilt and penalty judgments in their entirety.

Facts

A. Guilt Phase

The facts adduced at the guilt phase of the trial are adequately set forth in Avena I, supra: “On September 12, 1980, petitioner and brothers Victor and Arturo Padua were driving in a white 1971 Mazda. Petitioner sat in the backseat and had a .22-caliber rifle with him. All three had consumed some beer that evening. While waiting for a stoplight, a brown Ford Galaxy pulled alongside them. When Arturo Padua yelled an insult at the brown car, one of its occupants threw a beer bottle at them, striking the Mazda on the window where petitioner was seated. Petitioner retaliated by shooting at the Ford, which then sped off.

“Petitioner and the Paduas gave chase. The Ford stopped suddenly, causing petitioner’s Mazda to collide with the rear of the Ford. The Ford again drove away; the Mazda, however, was rendered inoperable. Petitioner and the Paduas pushed it to the side of the road and decided to secure alternative transportation. It was then they saw a pink Chevrolet Camaro, driven by victims Manuel Solis and Miguel Vasquez. Petitioner and the Padua brothers approached the Camaro and stood on either side of the car. Petitioner was carrying his rifle and Arturo was carrying a piece of wood. Although the exact sequence of events is unclear, petitioner apparently demanded the driver give him his money and the keys to the Camaro. Petitioner then shot into the car, wounding the occupants. Petitioner also apparently grabbed one of the victims, pulled him out of the car, and shot him four times in the chest. The other victim exited the passenger side of the Camaro whereupon Arturo struck him in the head with the piece of wood. When one of the victims made a vain attempt to flee, petitioner told Arturo to move out of his line of sight, and then he shot the victim twice. Some people on the street, including the victim’s brother, Daniel Solis, witnessing this crime, engaged in some sort of confrontation that included throwing a bottle. The witnesses fled when petitioner began shooting at them. Petitioner and the Paduas then left in the pink Camaro.

“Once in the car, petitioner said he was out of ammunition and needed to go home and reload. After reloading, the trio drove the Camaro to a church parking lot, where they set the car on fire, apparently to eliminate their fingerprints. They then walked to 22nd Street and Normandie, near the Santa Monica Freeway. The Paduas went to buy more beer and then returned to petitioner. By this time, it was approximately 11 p.m., and the trio was once again on foot.

“Victor Padua, apparently having had enough excitement for one night, hid in some bushes near a freeway exit. When victim Ana Hernandez stopped her yellow Chevette at a stoplight, petitioner and Arturo walked up to either side of the car and attempted to open her door. Petitioner shot into the car door; Arturo may have slammed a beer bottle on the windshield. Hernandez accelerated through the red light to escape; petitioner shot at the escaping Chevette, striking the rear of the vehicle.

“Officers McCann and Derenia were coincidentally driving by the off-ramp in an unmarked police car at this time and observed the yellow Chevette drive through the red light. They then saw petitioner standing in the off-ramp with the rifle. Petitioner opened fire on the officers, shooting out the car windows. The officers returned fire, both emptying their revolvers before driving under the freeway, making a U-turn, and returning. Petitioner and Arturo fled on foot, managing to escape capture. A police search of the area revealed several .22-caliber casings on the ground and, eventually, Victor Padua, still hiding in the bushes.

“Police initially did not connect Victor to the shootings, as he gave a false story. Finding evidence that Victor had been seen in the company of two other men that night, police questioned him again and this time he told police about petitioner and Arturo. They were arrested and identified by Officers McCann and Derenia. The witnesses of the Solis and Vasquez murders confirmed the shootings, but were too far away to make positive identifications. Hernandez likewise said it was too dark to make a positive identification of her assailants.

“Victor Padua testified against petitioner at his trial. In addition, petitioner gave a statement to police that was surreptitiously recorded. This statement largely tracked Victor’s account of the crimes, except that petitioner claimed the driver of the pink Camaro menaced him with a knife and that was why he shot him. The recording was played for the jury.

“Petitioner also admitted he used a .22-caliber rifle that was loaded by means of a tubular magazine with a capacity of 17 to 20 rounds. He said he bought the rifle on the street for $30. A police expert testified that the .22-caliber shell casings found at the murder scene and on the off-ramp were, with one exception, fired from the same gun. The expert testified that only three types of rifles could have produced those shell casings. One type, the Marlin Glenfield, was described as a ‘very common, very popular . . . very low priced [rifle]’ that uses a tubular magazine with an 18-round capacity. (One shell casing exhibited characteristics that made it impossible to determine with certainty that it came from the same weapon.)

“Petitioner’s trial counsel, Marvin Part, waived his opening statement and rested without presenting any defense at the guilt phase of the trial.” (Avena I, supra, 12 Cal.4th at pp. 704-706.)

B. Penalty Phase

The prosecution’s case in aggravation consisted of evidence of three violent incidents.

1. The January 1978 Shooting

In January 1978, victim Carlos De Santiago was standing on a Los Angeles street comer with some members of the “Harpys” street gang. As a car drove by, a man with a shotgun jumped from the car and opened fire. De Santiago was hit in the neck, but could not identify the assailant. Defendant was later arrested for the shooting; he admitted he fired the shots in retaliation, claiming some Harpys had shot into his parents’ house and had broken his car windshield. Defendant was then 17 years old.

2. The September 1981 Jailhouse Murder

In September 1981, while defendant was in pretrial detention for the offenses for which he was eventually convicted and sentenced to death, deputies noticed a commotion while prisoners were returning from lunch. Deputy Oki, who was in a caged security area, observed defendant stabbing another inmate, Ruben Alfaro, with a jail-made knife called a shank. Alfaro was lying with his back on the floor and defendant stabbed him three or four times in the chest. Another inmate, Jesus Gonzalez, was also stabbing Alfaro. Oki was only four or five feet from the altercation.

Deputy Minnis was Oki’s partner, and he also observed the attack. He specifically noticed the blood-covered shank in defendant’s hand. When Minnis yelled out, defendant and Gonzalez fled; defendant discarded the shank. Minnis detained defendant, and it was later discovered defendant was wearing a towel wrapped around his midsection, a known protective tactic used by jail inmates who anticipate participating in a knife fight. Gonzalez was detained by Deputy Baylis, who had observed Gonzalez running from the scene; Gonzalez later admitted ownership of a long shank found near the knife attack.

Alfaro died from his wounds. An autopsy revealed the cause of death was blood loss due to multiple stab wounds. The stab wounds were consistent with defendant’s shank.

Two days before the Alfaro homicide, Deputy Bauder saw defendant leave the dayroom and noticed that he bore several fresh superficial wounds on his left temple, neck and chest. Defendant told Bauder that an unidentified “black guy had tried to get him.” A search of the dayroom turned up 5 shanks, but no witnesses among the 80 or 90 inmates present.

3. The November 1981 Assault

On November 5, 1981, Deputy De Leon was attempting to remove handcuffs from some prisoners. Defendant, whom De Leon did not recognize, attempted to walk between De Leon and the prisoners. When De Leon asked defendant what he was doing, defendant did not answer. A few seconds later, defendant again stepped between De Leon and the handcuffed prisoners. At this point, De Leon stopped trying to uncuff the prisoners and directed defendant to enter a cell. Defendant began to comply, but suddenly wheeled and attempted to strike De Leon in the face with a closed fist. A full-fledged fight ensued, with Deputy Mushinki joining in to subdue defendant. During the fight, defendant tried to bite De Leon in the groin area.

Defense counsel called only two minor witnesses at the penalty phase of the trial.

Discussion

A. Guilt Phase Issues

1. Denial of a Representative Jury

Defendant first contends that excusal of 11 jurors who stated they could not vote for the death penalty under any circumstances violated his rights to both a representative and an unbiased jury, as guaranteed by the state and federal Constitutions. The claims lack merit. We have held that excusing such jurors does not violate a defendant’s right to a representative jury (People v. Thompson (1990) 50 Cal.3d 134,157 [266 Cal.Rptr. 309, 785 P.2d 857]; People v. Hamilton (1989) 48 Cal.3d 1142, 1165 [259 Cal.Rptr. 701, 774 P.2d 730]), and the United States Supreme Court has also so held (Lockhart v. McCree (1986) 476 U.S. 162 [90 L.Ed.2d 137, 106 S.Ct. 1758]). We have also held that excusing jurors unable or unwilling to vote for the death penalty under any circumstances does not compromise the constitutional right to an unbiased jury. (People v. Jennings (1988) 46 Cal.3d 963, 975 [251 Cal.Rptr. 278, 760 P.2d 475]; Hovey v. Superior Court (1980) 28 Cal.3d 1 [168 Cal.Rptr. 128, 616 P.2d 1301].) Because we have adopted the high court’s formulation for excusing jurors in capital cases as set forth Wainwright v. Witt (1985) 469 U.S. 412 [83 L.Ed.2d 841, 105 S.Ct. 844] (see, e.g., People v. Hamilton, supra, at p. 1165), we apply the same analysis to these two issues (unrepresentative jury, biased jury) under both the state and federal Constitutions.

Defendant’s initial opening brief was filed before the decision in Lockhart v. McCree, supra, 476 U.S. 162, was filed. Because his supplemental briefs do not provide any further argument why the authority cited above is wrong, we will adhere to those cases and reject his first argument.

2. Limitation on Voir Dire

The record reveals the trial court asked each prospective juror in camera his or her views on the death penalty, apparently attempting to comply with the directives of Witherspoon v. Illinois (1968) 391 U.S. 510 [20 L.Ed.2d 776, 88 S.Ct. 1770], the high court precedent that applied at that time. (See Wainwright v. Witt, supra, 469 U.S. 412 [superseding Wither-spoon]; People v. Hardy (1992) 2 Cal.4th 86, 129-130 [5 Cal.Rptr.2d 796, 825 P.2d 781] [applying Witt in California] (hereafter Hardy).) Although the record is unclear, we assume the trial court undertook this procedure in response to this court’s views in Hovey v. Superior Court, supra, 28 Cal.3d at pages 71-75, requiring sequestered voir dire due to the potential bias that may result from the process of death-qualifying prospective jurors. (See People v. Bittaker (1989) 48 Cal.3d 1046, 1081 et seq. [259 Cal.Rptr. 630, 774 P.2d 659] (hereafter Bittaker).)

Defendant now contends that because the trial court, and not defense counsel, conducted the primary voir dire inquiry, this procedure violated his constitutional right to an impartial jury, because it limited counsel’s ability adequately to question the prospective jurors. As a threshold matter, we note defendant failed to object to the procedure, thereby waiving the issue for appeal. (See People v. Caro (1988) 46 Cal.3d 1035, 1047 [251 Cal.Rptr. 757, 761 P.2d 680].) Defendant argues we should overlook the lack of an objection, claiming that counsel was constitutionally ineffective for failing to object. Counsel, however, may have had a tactical reason for agreeing to a voir dire procedure aimed at protecting defendant’s right to a fair trial. (Hovey v. Superior Court, supra, 28 Cal.3d 1, 71-75.) In any event, defendant’s failure to demonstrate any prejudice precludes our finding counsel was ineffective on this record.

Defendant further argues we should overlook his failure to object because the trial court bore the ultimate responsibility to ensure he received a fair and impartial jury. In support, he cites Rosales-Lopez v. United States (1981) 451 U.S. 182, 189 [68 L.Ed.2d 22, 29, 101 S.Ct. 1629] (hereafter Rosales-Lopez). That case is inapposite. Although Rosales-Lopez states that the “obligation to impanel an impartial jury lies in the first instance with the trial judge” (ibid.), that decision does not undermine the California rule requiring a timely objection to preserve an issue for appeal. Indeed, aside from the situation involving racial discrimination, the Rosales-Lopez opinion concerns the high court’s supervisory powers over the lower federal courts, not constitutional imperatives. (Id. at pp. 190-192 [68 L.Ed.2d at pp. 29-31].) We thus reject the suggestion that Rosales-Lopez excuses defendant’s failure to make a timely objection to the trial court’s voir dire procedure.

Even assuming for argument that the issue was preserved for appellate review, however, the record does not support defendant’s claim of error. The record reveals that if a juror gave equivocal answers, the trial court permitted both defense counsel and the prosecutor to ask follow-up questions. This was thus not a case in which the trial court reserved voir dire for itself. (Cf. Bittaker, supra, 48 Cal.3d at p. 1083.) Moreover, defendant identifies no prejudice flowing from the procedure; that is, he fails to establish that a juror who eventually served was biased. (Bittaker, supra, at pp. 1086-1087 [rejecting a per se reversal test].) We thus reject the claim.

3. Instruction on Diminished Capacity

Defendant contends there was substantial evidence he was intoxicated and the court therefore erred in refusing to give his requested diminished capacity instruction. We agree with the trial court the evidence in the record was insufficient to support such an instruction.

“Although the defense of diminished capacity is now abolished (People v. Saille (1991) 54 Cal.3d 1103 [2 Cal.Rptr.2d 364, 820 P.2d 588]; Pen. Code, §§ 25, 28; see generally, 1 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Defenses, §§ 208-211, pp. 238-243), it was extant when petitioner committed his crimes. ‘Diminished capacity [was] a defense to all specific intent crimes.’ (People v. Cruz (1980) 26 Cal.3d 233, 242 [162 Cal.Rptr. 1, 605 P.2d 830].) It provided that ‘A person who intentionally kills may be incapable of harboring malice aforethought because of a mental disease, defect, or intoxication, and in such a case his killing, unless justified or excused, is voluntary manslaughter.’ (People v. Conley (1966) 64 Cal.2d 310, 318 [49 Cal.Rptr. 815, 411 P.2d 911], italics added.)” (Avena I, supra, 12 Cal.4th at pp. 722-723.)

The rejection of a diminished capacity instruction is error only if there is substantial evidence supporting the defense, i.e., evidence from which a reasonable juror could conclude that defendant’s mental capacity was so reduced or impaired as to negate the required criminal intent. (People v. Flannel (1979) 25 Cal. 3d 668, 684 [160 Cal.Rptr. 84, 603 P.2d 1.) The particular facts of this case show the People proceeded on a felony-murder theory only. Thus, defendant’s entitlement to the instruction hinges on the sufficiency of the evidence showing that as a result of mental disease, defect, or—in this case—intoxication, he was unable to entertain the intent to rob, i.e., to permanently deprive the victims of the pink Camaro. (See People v. Turner (1984) 37 Cal.3d 302, 326 [208 Cal.Rptr. 196, 690 P.2d 669], overruled on another point, People v. Anderson (1987) 43 Cal.3d 1104, 1115 [240 Cal.Rptr. 585, 742 P.2d 1306].)

We conclude there was no substantial evidence showing defendant’s capacity was significantly diminished in this respect. Victor Padua testified that after he, his brother Arturo, and defendant left work at the body shop at 6 p.m. on the night of the murders, they stopped at a liquor store and bought some beer. They then dropped off defendant at his home and continued to their house. Later, after a meal, the Padua brothers “had a couple more beers,” but there is no evidence how much defendant drank. Around 9:30 p.m., defendant called to ask for a ride to the hospital to pick up his wife. The Padua brothers agreed; by this time, Victor testified he had drunk “about maybe six or eight beers,” but there is no indication whether defendant had been drinking as well.

When the Paduas arrived at defendant’s home, he was not yet ready to go, so Victor went to buy more beer, purchasing three 16-ounce cans. When the three men drove off, Victor gave both Arturo and defendant one can of beer, keeping one for himself.

The only other evidence relating to defendant’s alleged intoxication was elicited on cross-examination of Officer Kellenberger, to whom defendant talked at the police station following the murders. When Kellenberger asked defendant where he and the Paduas were going when they left his house, defendant replied, “I don’t know, man. We were so drunk.” Victor Padua had maintained, however, that he (Victor) did not feel the effect of the alcohol.

This evidence is too weak and insubstantial to justify a diminished capacity instruction. First, we have affirmed refusals to give a diminished capacity instruction when the evidence of intoxication was substantially stronger. For example, in People v. Rodríguez (1986) 42 Cal.3d 730 [230 Cal.Rptr. 667, 726 P.2d 113], the evidence showed the defendant had shared a pint bottle of brandy with someone in the early evening, then later consumed two mixed drinks during the course of the evening. In addition, the defendant snorted three lines of cocaine. He testified he was “under the influence” but not “drunk or overly drunk or high on cocaine.” (Id. at p. 762.) We concluded this evidence “lent only minimal and insubstantial support to appellant’s theory of diminished capacity from intoxication and therefore was not sufficient to justify the requested instruction.” (Ibid.) It is manifest that defendant’s showing of intoxication, which was even less extensive than in Rodriguez, supra, also did not justify the requested instruction.

A second reason why we reject defendant’s claim is the lack of any evidence showing the effect of the alcohol on him. “Normally, merely showing that the defendant had consumed alcohol or used drugs before the offense, without any showing of their effect on him, is not enough to warrant an instruction on diminished capacity. [Citations.]” (People v. Pensinger (1991) 52 Cal.3d 1210, 1241 [278 Cal.Rptr. 640, 805 P.2d 899].)

Because defendant failed to introduce substantial evidence of diminished capacity, the trial court’s rejection of the requested instruction was proper. Accordingly, we also conclude the court’s refusal to deliver the instruction did not undermine the reliability of the factfinding process in violation of defendant’s right to due process under the 14th Amendment.

4. Instruction on Assault With Intent to Commit Murder

The trial court instructed the jury that defendant was not guilty of assault with intent to commit murder (former § 217) unless he acted with the specific intent to murder the victim. Previous instructions, however, defined murder as requiring either express or implied malice. Implied malice was defined as: “when the killing is the direct causal result of the perpetration or attempt to perpetrate a felony inherently dangerous to human life, such as robbery.” Defendant contends these instructions were erroneous because they could have permitted the jury to convict him of assault with intent to commit murder when only implied malice was shown. We find no error.

The jury was instructed: “Every person who assaults another with the specific intent to commit murder is guilty of the crime of assault to commit murder. [*][] In order to prove the commission of the crime of assault to commit murder, each of the following elements must be proved: HQ One, that a person was assaulted; [<]D And two, that the assault was made with the specific intent to murder such person.” (Italics added.) As we have explained in previous cases, giving this instruction was potentially confusing, because the applicable mental state for a violation of former section 217 is the specific intent to kill, not to murder. (People v. Coleman (1989) 48 Cal.3d 112, 138 [255 Cal.Rptr. 813, 768 P.2d 32] (hereafter Coleman); see also People v. Lee (1987) 43 Cal.3d 666, 670 [238 Cal.Rptr. 406, 738 P.2d 752] [same for crime of attempted murder].)

As in Coleman, supra, however, we find the “instructions could not have been so understood.” (48 Cal.3d at p. 139; see Boyde v. California (1990) 494 U.S. 370, 380-381 [108 L.Ed.2d 316, 329, 110 S.Ct. 1190] [for ambiguous instructions, test is whether there is a “reasonable likelihood” the jury misunderstood and misapplied the instruction]; see also Estelle v. McGuire (1991) 502 U.S. 62, 72 & fn. 4 [116 L.Ed.2d 385, 399, 112 S.Ct. 475] [same].) First, the instructions did not clearly and directly inform the jury a conviction of violating former section 217 could be based on a finding of implied malice. Although such an interpretation could be teased out of the instructions given, it was not obvious. “The proper instruction that one can be guilty of murder on the basis of implied malice not involving an intent to kill, did not state or imply that one could be guilty of a crime which requires a specific intent to commit murder without intending to kill.” (Coleman, supra, 48 Cal.3d at pp. 139-140, italics in original.)

Also as in Coleman, “[n]othing in counsel’s final arguments at the guilt phase misled the jury to the contrary.” (48 Cal.3d at p. 140.) The prosecutor, in his closing argument, emphasized the need to find intent to kill as opposed to the intent to murder: “[T]he clear intent was to kill those people and not just to shoot at them or scare them.” (Italics added.) In his closing argument, defense counsel discussed the assault on Ana Hernandez by emphasizing that defendant shot into the door of her car, noting that “[defendant] could have shot right through the window and killed her” but that he did not, and he was thus not guilty of assault with the intent to commit murder. (Italics added.) Similarly, with regard to the assault on Daniel Solis, the witness to the two murders, counsel underscored the fact that when defendant shot at the victim, it was a “scattered shot” and that defendant had “no intention to kill” (Italics added.)

The state of the instructions, while perhaps potentially confusing, posed no reasonable likelihood of jury misunderstanding, nor did the arguments of counsel and the prosecutor exacerbate the instructional problem. One final factor convinces us the instructional error does not require reversal. After argument and instruction, the jury found defendant guilty of assault with the intent to commit murder for the assaults on Officers McCann and Derenia, but of the lesser included offense of assault with a deadly weapon for the assaults on Ana Hernandez and Daniel Solis. It thus appears the jury properly differentiated between the McCann and Derenia assaults, and the Hernandez and Solis assaults. Moreover, it is inconceivable that defendant shot at the officers with only implied malice as that phrase was defined for the jury, that is, with the intent simply to commit a felony that was “inherently dangerous to human life, such as robbery.” Indeed, there was no evidence defendant shot at the officers with any intent other than to kill them and thus avoid capture. We conclude there was no reasonable likelihood the jury misunderstood the ambiguous instructions.

5. Ineffective Assistance of Counsel

Defendant next raises several grounds on which he claims his trial attorney, Marvin Part, was constitutionally ineffective. As we noted in Avena I, supra, 12 Cal.4th 694, the applicable law is settled. “ ‘[I]n order to demonstrate ineffective assistance of counsel, a defendant must first show counsel’s performance was “deficient” because his “representation fell below an objective standard of reasonableness . . . under prevailing professional norms.” (Strickland v. Washington (1984) 466 U.S. 668, 687-688; . . . .) Second, he must also show prejudice flowing from counsel’s performance or lack thereof. (Strickland, supra, at pp. 691-692; . . .) Prejudice is shown when there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (In re Sixto (1989) 48 Cal.3d 1247, 1257 [259 Cal.Rptr. 491, 774 P.2d 164]; Strickland, supra, at p. 694.)’ (People v. Jennings (1991) 53 Cal.3d 334, 357 [279 Cal.Rptr. 780, 807 P.2d 1009].)” (Avena, supra, 12 Cal.4th at p. 721.)

Defendant raised several claims of ineffective counsel in the petition for a writ of habeas corpus denied in Avena I. Because defendant apparently is raising additional claims of ineffective counsel on direct appeal, it is appropriate to reiterate our admonition from People v. Pope (1979) 23 Cal.3d 412 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1]: “In some cases, ... the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged. In such circumstances, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, these cases are affirmed on appeal. [Citation.] Otherwise, appellate courts would become engaged ‘in the perilous process of second-guessing.’ [Citation.] Reversals would be ordered unnecessarily in cases where there were, in fact, good reasons for the aspect of counsel’s representation under attack. Indeed, such reasons might lead a new defense counsel on retrial to do exactly what the original counsel did, making manifest the waste of judicial resources caused by reversal on an incomplete record. [