Opinion
B302652
07-30-2020
THE PEOPLE, Plaintiff and Respondent, v. KEITH BROWN, Defendant and Appellant.
Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr. and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. A037401) APPEAL from a judgment of the Superior Court of Los Angeles County, Laura L. Leasecke, Judge. Dismissed. Christian C. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr. and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
We consider an appeal from a trial court order denying defendant Keith Brown's (defendant's) request for coram nobis relief—a request made over three decades after his murder conviction.
I. BACKGROUND
Defendant pled guilty to second degree murder in 1987. He was represented by counsel when entering that plea. The trial court sentenced him to 17 years to life in prison.
At sentencing, the prosecutor summarized defendant's offense conduct that led to the murder charge. As recited by the prosecutor, defendant participated in a drug deal that went bad, leading defendant to shoot the drug seller four times and remark he had to "take care of business" because the seller was "ripping [defendant and two of his comrades] off."
Roughly 32 years later, in 2019, defendant filed an uncounseled document in the trial court that he captioned a "Motion to Vacate Judgment pursuant to Penal Code § 1265; 28 U.S.C. § 1651." Defendant claimed he was legally insane at the time of the murderous offense conduct and at the time of his subsequent guilty plea. Defendant asserted that four years before filing the motion he volunteered to participate in a prison mental health evaluation and a psychologist, one E. Gosek (Gosek), concluded he had been suffering from schizophrenia since age 10 and had "frontal lobe" damage to his brain. A progress note authored by Gosek was attached to defendant's motion. It stated he sought treatment out of a desire to "'retrieve the content of hypnosis from 1979 Masonic Lodge'"; it opined defendant suffered from schizophrenia, with the onset of "illness" beginning in 1980; and it asserted an MRI of defendant's brain in 2013 showed abnormality in the frontal lobe area that was of "doubtful clinical significance."
Penal Code section 1265 largely has no bearing on defendant's case because he did not appeal his conviction. Looking at the substance of defendant's submission, it appears the citation to Penal Code section 1265 is included solely because of this sentence in subdivision (a) of the statute: "However, if a judgment has been affirmed on appeal no motion shall be made or proceeding in the nature of a petition for a writ of error coram nobis shall be brought to procure the vacation of that judgment, except in the court which affirmed the judgment on appeal." Defendant's other citation, to Title 28, United States Code, section 1651, is entirely inexplicable. It has no bearing on his case.
Defendant's motion claimed he was unaware of his "mental defect" when he entered his guilty plea to the murder charge and this "insanity" at the time prevented him from mounting an insanity defense. Defendant also claimed that when he pled guilty in 1987 he was misled into thinking his sentence would only require him to serve ten years in the "Youth Authority." Citing People v. Shipman (1965) 62 Cal.2d 226 (Shipman), a case discussing circumstances in which coram nobis relief can be available for one "insane" at the time of an offense and subsequent plea, defendant asked the court to vacate his murder conviction.
The trial court denied defendant's motion. The court found defendant had not identified "a legal means to grant his request."
II. DISCUSSION
The trial court summarily denied defendant's request for coram nobis relief, and appropriately so. (Shipman, supra, 62 Cal.2d at 230 ["In view of these strict requirements [for obtaining coram nobis relief], it will often be readily apparent from the petition and the court's own records that a petition for coram nobis is without merit and should therefore be summarily denied"].) Our disposition of this appeal from the trial court's order will also be appropriately swift. (See, e.g., People v. Totari (2002) 28 Cal.4th 876, 885, fn. 4 ["In an appeal from a trial court's denial of an application for the writ of error coram nobis, a reviewing court initially determines whether defendant has made a prima facie showing of merit; if not, the court may summarily dismiss the appeal"].)
"[C]oram nobis is granted only when three requirements are met. (1) Petitioner must 'show that some fact existed which, without any fault or negligence on his part, was not presented to the court at the trial on the merits, and which if presented would have prevented the rendition of the judgment.' [Citations.] (2) Petitioner must also show that the 'newly discovered evidence (does not go) to the merits of issues tried; issues of fact, once adjudicated, even though incorrectly, cannot be reopened except on motion for new trial. . . . (3) Petitioner 'must show that the facts upon which he relies were not known to him and could not in the exercise of due diligence have been discovered by him at any time substantially earlier than the time of his motion for the writ' . . . ." (Shipman, supra, 62 Cal.2d at 230.) Petitioner makes no prima facie showing as to the third of these elements. In marked contrast to Shipman, where the defendant sought coram nobis relief less than a year after his conviction (id. at 228-229), there is no reason to believe defendant could not have discovered, with the exercise of due diligence in the more than three decades between his conviction and the filing of his motion, what he represents are serious mental health problems. (See, e.g., People v. Kim (2009) 45 Cal.4th 1078, 1097; Shipman, supra, at 230.) Moreover, even accepting defendant's assertion that he did not discover his allegedly serious mental health condition until Gosek's examination in 2015, that is four years before he sought coram nobis relief—still much too long to be consistent with a prima facie finding of diligence. Furthermore, we think it significant that even if defendant could make a prima facie finding of diligence, a trial court would be presented with the unenviable and perhaps impossible task of making a retrospective assessment of defendant's mental status some 30 years earlier—a process disfavored in the law. (See Pate v. Robinson (1966) 383 U.S. 375, 387 ["we have previously emphasized the difficulty of retrospectively determining an accused' competence to stand trial"]; see also, e.g., People v. Ary (2004) 118 Cal.App.4th 1016, 1028 ["We emphasize . . . it is the rare case in which a meaningful retrospective competency determination will be possible. The inherent difficulty of such a determination, of course, is that there will seldom be sufficient evidence of a defendant's mental state at the time of trial on which to base a subsequent competency determination"].)
We need not reach the question of whether the requisite showing has been made as to the other two elements.
There being no prima facie case for coram nobis relief, we shall order the appeal dismissed.
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J. I concur:
MOOR, J. RUBIN, P. J. - Dissenting:
Keith Brown was 16 years old when he pled guilty to second degree murder for a shooting he committed one week past his 16th birthday. He received a life sentence. Twenty-seven years later, in 2015, he was examined by a psychiatrist in prison and diagnosed with brain damage and schizophrenia. The psychiatrist tied the brain damage to Brown's memory of being bludgeoned as a six-year-old. The doctor concluded Brown suffered from delusions, and that the "onset of his disabilities" was prior to the shooting, when Brown underwent a "sudden deterioration" and "drastic behavior changes." The psychiatrist informed Brown the assessment of a "frontal lobe disorder" was preliminary and could "only be completed by a certified neuropsychologist."
Four years later, in 2019, Brown filed a motion to vacate the judgment on the ground he had newly discovered evidence he was legally insane at the time of the offense. Although he cited to the seminal case holding that a defendant's insanity at the time of the crime and plea is a proper ground for obtaining coram nobis relief — People v. Shipman (1965) 62 Cal.2d 226 — the trial court concluded he had "failed to identify a legal means to grant his request."
In my view the trial court erred. Coram nobis was the correct vehicle to raise Brown's late claim of insanity. Nevertheless, the majority concludes that denial of Brown's petition was still "appropriate" because he did not establish a prima facie case of due diligence. According to the majority, four years between the prison psychiatrist's examination and the filing of the petition is, as a matter of law "much too long to be consistent with a prima facie finding of diligence." (Maj. Opn., p. 5.) However, due diligence in requesting coram nobis relief is a fact-specific inquiry, and there is no set amount of time that constitutes an unreasonable delay. (See People v. Kim (2009) 45 Cal.4th 1078, 1095-1097 (Kim) [a due diligence determination depends on the circumstances under which the defendant discovered the new evidence and moved for relief].)
I acknowledge the record suggests that defendant may have had relevant information on his medical condition even earlier.
Hirabayashi v. United States (9th Cir. 1987) 828 F.2d 591 provides an apt application of the Kim rule. There forty years after a Japanese-American was convicted of violating a public security measure during World War II, he filed for coram nobis relief alleging "new material had come to light in this decade" showing the government had misled the courts. (Id. at p. 597.) In granting coram nobis relief, the court noted the difficulty for "a lay person to locate" the evidence and rejected the argument that petitioner should have moved earlier because the material relied upon had been "a matter of public record for decades." (Id. at p. 605.)
In People v. Welch (1964) 61 Cal.2d 786, the Supreme Court found that a delay of almost two years did not prevent the defendant from showing coram vobis due diligence. In Welch, the defendant pled guilty to robbery and two murders he committed after consuming substantial quantities of alcohol. (Id. at pp. 788-789.) Two months after sentencing, the defendant underwent an electroencephalographic examination revealing brain damage. (Id. at p. 789.) Nearly two years after the defendant learned of the brain damage, he moved for coram vobis relief, alleging that at the age of five he suffered an attack of encephalitis with resulting brain damage, and that such brain damage continued to exist at the time of the murders. (Ibid.) A psychiatrist opined that the defendant " 'experienced episodes of automatic behavior when drinking' " and, due to his brain damage, was " 'unable to recognize or understand the nature and consequences of his act' " when inebriated. (Id. at pp. 789-790.) The Supreme Court granted the "writ of error coram vobis," reinstated defendant's plea of not guilty by reason of insanity, and directed the trial court to conduct further proceedings. (Id. at pp. 793-795.)
"'The writ of coram vobis is essentially identical to the writ of coram nobis except that the latter is addressed to the court in which the petitioner was convicted.' [Citation.]" (Welch, supra, 61 Cal.2d at p. 790.) In Welch, petitioner sought relief initially in the appellate court, hence the petition was one for coram vobis.
In holding that the defendant had acted with due diligence, the Welch court recognized defendant's "difficulty in establishing facts such as those at issue here while imprisoned in San Quentin." (Welch, supra, 61 Cal.2d at p. 793; see also People v. Brady (1973) 30 Cal.App.3d 81, 87 ["We sympathize with counsel's statement that petitioner should not be 'faulted' for his failure to present timely the 'present sanity' issue; if petitioner was unable to understand the nature of his criminal trials, or assist his counsel in his defense, he hardly could be expected to raise the issue at the time of trial or to proceed with reasonable diligence after he was convicted."].) The Welch court further noted that the defendant "had no attorney" during the first year after he discovered the new evidence. (Welch, at p. 792.) He was later able to obtain counsel to represent him and help him present evidence to the court showing his delay had been due to his attempts to "bolster[] his case, fill[] the gaps in his medical history, and secur[e] assistance." (Id. at p. 793.)
The words of one commentator paint a telling picture of the impediments faced by inmates such as Brown and Welch who seek coram nobis relief while incarcerated: "Certainly, courts will not be oblivious to common sense in judging delay. The time at which the petitioner had the first intimation of the new fact will not necessarily be dispositive. A myriad of other factors and the realities of a petitioner's situation must be taken into account. If the petitioner is imprisoned, the natural impairment of his or her ability to gather information will be a consideration. If expert assistance with a specialized subject is involved, the need for consultation explains some inaction. The absence of counsel may also be of consequence. A reasonable period of time for the accumulation and evaluation of the factual showing planned to support the petition is recognized as legitimate and may be allowed." (Morgan Prickett, The Writ of Error Coram Nobis in California 30 Santa Clara L. Rev. 1, 38 (1990) [citing Welch].)
Here, by contrast, the record does not establish that, at any time relevant to the current petition, Brown had the assistance of counsel. We, likely do not have a complete picture of the four years it took him to file his coram nobis petition. Unsurprisingly, the form of his self-represented petition is replete with non sequiturs and irrelevancies. In light of his (so far) uncontroverted brain damage, it would not be surprising that additional facts and considerations might weigh on the merits of a coram nobis petition. I, for one, cannot say at this stage that Brown made no efforts to secure further medical information— such as the neuropsychological examination required to confirm the preliminary assessment of his brain damage—or obtain legal assistance. On the contrary, we might reasonably infer that Brown's lack of counsel, his lack of a high school education, and his severe mental deficiencies contributed to his delay. These handicaps attached to a man confined in state prison all contributed to the difficulty that Brown had in obtaining the expert medical and legal assistance he needs to prove his case. Welch acknowledged as much.
In short, the question of Brown's due diligence is a fact-intensive inquiry the trial court is best-suited to undertake. The inquiry should be at an evidentiary hearing at which Brown, would be entitled to appointed counsel. (Shipman, supra, 62 Cal.2d at p. 232.) At this juncture, we are tasked only with determining whether he has made a prima facie case of such diligence.
The majority looks down the road and emphasizes that, even if Brown can show due diligence, it might be "impossible" for the trial court to conduct a retrospective assessment of Brown's mental state. That may be so and coram nobis relief might be denied because of Brown's inability to show many years later that he was in fact insane at the time of the crime. On the other hand, this may that "rare case in which a meaningful retrospective competency determination will be possible." (People v. Ary (2004) 118 Cal.App.4th 1016, 1028.) Brown has already proffered the testimony of a psychiatrist who examined Brown's MRI and CT scans, diagnosed him with schizophrenia and brain damage, and found that his disabilities developed prior to the offense. Any final determination of whether a retrospective competency determination is realistic should be a data-based inquiry by medical experts.
In my view Brown has made a prima facie case of due diligence and the other requirements for coram nobis relief. Accordingly, I would reverse the trial court's order, and direct the trial court to conduct an evidentiary hearing at which Brown may be represented by counsel. RUBIN, P. J.