Opinion
A144413 A151898
01-11-2018
THE PEOPLE, Plaintiff and Respondent, v. DARRELL HUNTER, Defendant and Petitioner. In re DARRELL HUNTER, on Habeas Corpus.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. 222460)
Darrell Hunter appeals from a conviction of making a criminal threat. He contends that, due to his incompetence during the trial, the court erred in failing to suspend proceedings and conduct a competency examination, in denying a motion for new trial and in failing to hold a hearing to determine whether appellant's absence from trial was voluntary. He further contends his right to a fair trial was violated by juror misconduct during voir dire. In a related petition for writ of habeas corpus, he contends he received ineffective assistance of counsel due to his attorney's failure to investigate and present a defense based on his mental state at the time of the charged offense. We will affirm the conviction and deny the petition.
STATEMENT OF THE CASE
Appellant was charged by information filed on July 12, 2014, with one count of making a criminal threat (Pen. Code, § 422). He entered a plea of not guilty, with no time waiver, and motions for release on his own recognizance or to reduce bail and to set aside the information were denied.
Further statutory references will be to the Penal Code.
Jury trial began with jury selection on September 2, 2014. On September 3 and 4, the prosecution presented one witness and the defense presented two, one of whom was appellant's former girlfriend. During cross-examination of this defense witness, appellant asked to use the rest room and then waived his appearance for the remainder of the cross-examination. He was present for the testimony of the second defense witness, after which the parties indicated they had no further witnesses and the jury was dismissed for the weekend. Appellant waived his right to be present as the court and counsel went over jury instructions and left for the weekend with instructions to return at 9:15 on Monday.
The court told counsel that a juror had left a note asking why appellant returned and said that it would reiterate at the time of instruction that the jurors were not to speculate about the reasons for appellant's coming and going or to consider it for any purpose.
At 10:00 on Monday morning, September 8, the court told counsel that appellant had not yet appeared, there was "some indication he's on his way" and the court would not delay further. At 10:15, the court again admonished that they were not to speculate about appellant's absence or consider it for any purpose, proceeded with instructions and counsels' arguments; with appellant still absent at the end of the morning session, the court ordered bail forfeited and a bench warrant issued. Appellant was not present after the lunch break and the court proceeded with the remaining closing arguments and, at 2:42 p.m., sent the jury to begin deliberations.
The prosecutor requested a flight instruction, which the court denied, observing, "Well, given he was here on Friday, I think . . . looking for [his attorney], it could be that he's confused."
At this point, defense counsel moved for a mistrial based on alleged prosecutorial misconduct in the prosecutor's rebuttal argument. As the court began to respond, stating that it had sustained the defense objection and told the prosecutor she needed to "change how she was making" the argument at issue, appellant—apparently having returned at some point not documented in the record—interjected and the following exchange occurred:
The court minutes state that appellant was not present when court reconvened after the lunch break and again state he was not present when court returned from a recess at 4:06 p.m. to receive the jury's verdict. The mistrial motion and outburst described in the text occurred between 2:42 and 2:55 p.m.
"[Appellant]: Why you all keep playing with me? Especially you. You just stand up, my boy.
"[Defense counsel]: Calm down. You're crazy. You better back off.
"[Appellant]: You piece of shit. You're a piece of shit. That's what you are.
"[Defense counsel]: You need to calm down.
"[Appellant]: You need to understand what you are.
"The Court: Mr. Hunter, why don't we have you step outside and calm down just a little bit, and then we can talk.
"[Appellant]: Think I don't know what you about, bitch."
The court denied the mistrial motion. Just over an hour later, the jury returned its verdict, finding appellant guilty of making a criminal threat. A few minutes after the jurors were discharged, the court went back on the record, explaining that one of the jurors had expressed concern about the possibility of having contact with appellant due to a past experience of encountering and being threatened by a different defendant in a case for which she had been a juror. The court and counsel questioned the juror, who stated that her past experience had not affected her deliberations.
Two days later, on September 10, 2014, appellant was arrested on the bench warrant the court had issued when he failed to appear for trial on September 8. He was charged with making threats to an executive officer (§ 69) and misdemeanor resisting arrest (§ 148, subd. (a)(1)) as a result of his statements and conduct during the arrest. The next day, September 11, defense counsel declared a doubt as to appellant's competency based on his behavior and statements during trial. Proceedings were suspended under section 1368, Dr. Johnathan French was appointed to evaluate appellant and the case was continued for proceedings before Judge Ronald Albers.
Dr. French evaluated appellant on October 12 and filed his report on October 15, 2014, finding appellant to be presently incompetent but noting it was a close case and suggesting the court might wish to obtain a second opinion.
On October 20, attorney Cheryl Rich was appointed to represent appellant. The case was subsequently continued for a second competency evaluation by Dr. Lisa Jeko. Dr. Jeko evaluated appellant on November 15 and found him currently competent.
It appears that in the new case arising from appellant's arrest on September 10, appellant's prior attorney, Phoenix Streets, was relieved after a Marsden hearing on October 10.
At a hearing on December 3, defense counsel told the court she had represented appellant for two months, went through a preliminary hearing with him during which he was helpful, understood the law and cooperated with counsel, and she had no reason to doubt his competency. The court found appellant competent and reinstated criminal proceedings.
On January 21, 2015, appellant filed a motion for a new trial, arguing that a hearing was required to determine whether appellant was competent during the trial; appellant's absence from court was due to a mental illness; trial counsel was ineffective; a juror was improperly influenced by a prior jury experience; and there was insufficient evidence appellant made a criminal threat. The motion was denied after a hearing on February 5. The court sentenced appellant to the upper term of three years in state prison, suspended execution of sentence and placed appellant on supervised probation for five years, ordered him to serve 217 days in county jail with credit for having served those 217 days, and ordered him to complete all services required as directed by the probation department, particularly emphasizing requirements for a mental health evaluation and completion of any recommended treatment, an anger management course and substance abuse treatment. The court indicated that if after three years appellant had been successfully engaged in treatment and abided by the conditions of probation, it would consider modifying the sentence to suspended imposition of sentence rather than suspended execution of sentence, and perhaps early termination of parole.
Appellant filed a timely notice of appeal on February 24, 2015.
On February 24, 2016, appellant filed a petition for writ of habeas corpus in the superior court. Appellant had been convicted of making a criminal threat in another case, based on an incident in April 2015, less than three months after he was placed on probation in the present case, in which he threatened the manager of a McDonald's. A psychological evaluation obtained in preparation for sentencing in this later case concluded that appellant suffered from bipolar I disorder and related a long history of psychiatric inpatient admissions and emergency psychiatric holds. The petition for writ of habeas corpus in the present case claimed that appellant had been denied effective assistance of counsel in that his trial attorney did not investigate and present a defense based on his mental state at the time of the Department of Motor Vehicle (DMV) incident. The trial court denied the petition on April 1, 2016, finding that counsel had tactical reasons for not pursuing a mental state defense. On July 19, 2017, appellant filed a petition for writ of habeas corpus in this court, pursuing his claim of ineffective assistance of counsel.
STATEMENT OF FACTS
In June 2014, Carrie Stanton was working as a manager at the DMV on Fell Street in San Francisco. One of the employees she was responsible for overseeing, Terina Hampton, was appellant's former girlfriend. Hampton, appearing very nervous and agitated, asked Stanton what had happened a couple of weeks before, when appellant came in and asked for Hampton. Stanton replied that he had asked where Hampton was and, when Stanton said she was not there, asked when she would be back; pursuant to the department's policy, Stanton said she could not give him that information and appellant said, " 'Okay, Ms. Carrie,' " and left. Hampton said that appellant was "obsessed" with Stanton, angry at her and threatening that he was going to "come and get me," calling her "dyke, bitches." Hampton asked for time off to get a restraining order. Stanton took the threat toward her as "information" and a "warning" and did not think she needed to do anything about it at that time because appellant had never been aggressive toward her; she was more concerned for Hampton's safety.
A few days later, about 9:50 a.m. on June 10, 2014, Stanton was working at window 17 at the DMV, making a telephone call for a customer. She heard a commotion and saw appellant walking in, loudly calling her name and using obscenities. She heard him say, " 'Where is that bitch Carrie Stanton? Where is the fucking office manager Carrie Stanton? That fucking lesbian bitch, dyke, bitch, mother-fucking black bitch, where is she? I'm here to carry out martial law. She's been investigated and convicted and this is her last fucking day. This will be her last day. She won't see tomorrow.' " Appellant appeared "angry and aggressive," "walking rapidly, swinging his arms, looking around the office." He made eye contact with Stanton, and she called 911. Stanton felt "very threatened" and felt appellant was "there to do [her] harm"; she was scared because it appeared appellant was "carrying out" the threat Hampton had told her about.
The 911 operator could hear appellant yelling in the background and told Stanton to stay on the phone. As she did so, Stanton saw Hampton trying to calm appellant down. With the assistance of a guard, Hampton was able to get appellant to go outside, still yelling obscenities and trying to turn in Stanton's direction. Seconds after he left, however, appellant returned, again yelling, screaming Stanton's name and calling her "all kinds of names." He came closer to Stanton than he had been before. Hampton came back and as she tried to stop appellant, he "swatt[ed] her away," saying " '[y]ou're assaulting me." He picked up an ATM keypad and threw it at Stanton, then threw a fingerprint machine at her. Stanton guessed that the ATM keypad weighed about three to four pounds and the fingerprint machine about 12 to 15 pounds. Appellant then left again, with the aid of a guard. Throughout the incident, appellant repeatedly yelled the same sorts of things she initially described, that Stanton was a "dyke bitch" and a "fake Christian," he was there to "carry out martial law" and "fucking eliminate" Stanton, and that this was her "last fucking day."
The police did not respond to the 911 call, so Stanton later called the California Highway Patrol to report the incident and find out why there had been no response.
Hampton, testifying as a witness for the defense, did not recall what appellant was yelling when he first came into the DMV on June 10. She described appellant yelling at Stanton but the only specific thing she was sure of was that he called Stanton " 'Fake Christian bitches' "; he yelled other things as well but she did not pay attention to everything he was yelling because "[h]e was ranting." She did not hear him threaten anyone, but she acknowledged that she did not hear everything he said and that he could have made a threat she did not hear. She saw him throw an ATM machine or a fingerprint machine against the wall.
Hampton testified that prior to June 10, she gave Stanton and the administrative manager a "head's up" that appellant might be "having another episode" and might come in. She denied ever telling Stanton that appellant had threatened her. She asked Stanton what kind of exchange she had had with appellant because he seemed so focused on Stanton and she did not know why; he kept talking about the incident when he asked when Hampton would be back and Stanton said she could not give him this information. In talking with Stanton, she did not use the word "obsessed" but could have said "focused" or "bent"; "[i]t's like he was obsessed." She told Stanton that appellant had come into her home uninvited, "tore up" and made a mess in her apartment, and that she was concerned "because of his mental state, and he kept coming up to the job—to my job trying to see me."
Pedro Bohorquez, who was also working at the DMV on June 10 and did not know appellant, testified that he saw a person walking around, yelling and saying "too many bad words," "profanity" and mentioning a single name, the office manager Stanton. On cross-examination, Bohorquez testified that in the nine years he had worked at the DMV, he had never been so scared, and that he did not hear everything the person said.
DISCUSSION
I.
Appellant contends the trial court erred in failing to suspend proceedings and conduct a competency examination when appellant's outburst on September 8, 2014, combined with earlier incidents, presented substantial evidence that appellant had become incompetent to stand trial. He further contends his attorney was ineffective for failing to move for a mistrial and declare a doubt as to appellant's competency after the September 8 outburst.
" ' "Both the due process clause of the Fourteenth Amendment to the United States Constitution and state law prohibit the state from trying or convicting a criminal defendant while he or she is mentally incompetent. (§ 1367; Drope v. Missouri (1975) 420 U.S. 162, 181; Pate v. Robinson [(1966)] 383 U.S. [375,] 384-386; People v. Ramos (2004) 34 Cal.4th 494, 507.) A defendant is incompetent to stand trial if he or she lacks a ' "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—[or lacks] . . . a rational as well as a factual understanding of the proceedings against him." ' (Dusky v. United States (196[0] ) 362 U.S. 402; see also Godinez v. Moran (1993) 509 U.S. 389, 399-400; § 1367; People v. Stewart (2004) 33 Cal.4th 425, 513.)" (People v. Rogers (2006) 39 Cal.4th 826, 846-847, brackets added herein.)' (People v. Lewis (2008) 43 Cal.4th 415, 524 [(Lewis)].)
' "Both federal due process and state law require a trial judge to suspend trial proceedings and conduct a competency hearing whenever the court is presented with substantial evidence of incompetence, that is, evidence that raises a reasonable or bona fide doubt concerning the defendant's competence to stand trial. [Citations.] . . . Evidence of incompetence may emanate from several sources, including the defendant's demeanor, irrational behavior, and prior mental evaluations. [Citations.]" (People v. Rogers, supra, 39 Cal.4th at p. 847.) But to be entitled to a competency hearing, "a defendant must exhibit more than bizarre . . . behavior, strange words, or a preexisting psychiatric condition that has little bearing on the question of whether the defendant can assist his defense counsel. [Citations.]" (People v. Ramos, supra, 34 Cal.4th at p. 508.)' ([Lewis], supra, 43 Cal.4th at p. 524.)" (People v. Sattiewhite (2014) 59 Cal.4th 446, 464-465 (Sattiewhite).) "[D]isruptive conduct and courtroom outbursts by the defendant do not necessarily demonstrate a present inability to understand the proceedings or assist in the defense. (E.g., [People v.] Elliott [(2012)] 53 Cal.4th 535, 583; [Lewis, at pp.] 525-526; People v. Medina (1995) 11 Cal.4th 694, 735.)" (People v. Mai (2013) 57 Cal.4th 986, 1033 (Mai).) " '[A]bsent a showing of "incompetence" that is "substantial" as a matter of law, the trial judge's decision not to order a competency hearing is entitled to great deference, because the trial court is in the best position to observe the defendant during trial.' " (Sattiewhite, at p. 465, quoting Mai, at p. 1033.)
Appellant argues that the nature of the charged offense raised a suspicion he was suffering from a mental illness, noting that by the time of the September 8 outburst, the court had heard testimony about appellant's "bizarre behavior" at the DMV office and Hampton's testimony that she was concerned about appellant's mental state in June 2014. Additionally, appellant points to his statements at the preliminary hearing that Hampton was being "brainwashed" by Stanton and that "hell awaited non-believers" as raising a suspicion of incompetence. He argues that his inability to watch Hampton testify and his unexplained failure to appear for the morning session on September 8 indicated he was beginning to suffer a psychotic breakdown due to the stress of trial, and that his outburst when he did appear on September 8, in which he called his attorney "boy" and the judge a "bitch" was evidence he was in the midst of a psychotic breakdown. Appellant comments that his attorney had "good reason" for calling him "crazy" during the outburst.
Appellant argues his case is similar to People v. Murdoch (2011) 194 Cal.App.4th 230, 237, in that it involved more than "mere bizarre statements or actions taken in isolation." There, two doctors previously appointed to examine the defendant's competence previously had found he suffered from a serious mental illness and was competent at that time due to medication he had been given, but that he had since refused to take the medication and could decompensate and become incompetent if he continued to refuse it. (Id. at p. 233.) The defendant later successfully moved to represent himself, told the court his defense to the charges of felony assault was that the victim was not a human being and on cross-examination asked the victim only one question—"Can you shrug your shoulders like this?" According to the defendant, the victim lacked shoulder blades, which are " 'symbolic of angelic beings.' " (Ibid.) The Murdoch court concluded that the defendant's statements, together with the experts' reports, provided substantial evidence demonstrating a reasonable doubt as to whether the defendant had "decompensated and become incompetent as the experts had warned." (Id. at p. 238.)
In the present case, there was no prior competency hearing and no expert warning that appellant suffered from a serious mental illness, was competent only due to medication and was likely to decompensate because he had stopped taking medication. Nor did any of the statements or behavior appellant points to indicate a lack of a " ' "present ability to consult with his lawyer with a reasonable degree of rational understanding" ' " or lack of a " ' "rational" ' " and " ' "factual understanding" ' " of the proceedings. (Sattiewhite, supra, 59 Cal.4th at p. 464.)
Appellant's behavior at the DMV certainly demonstrated extreme emotion and anger, but this is not necessarily an indication he suffered from a mental illness affecting his "ability to understand the trial proceedings or to assist or cooperate with counsel." (Lewis, supra, 43 Cal.4th 415, 525.) In denying appellant's motion for new trial, the trial court detailed its reasons for concluding, based on its observations at trial, that while appellant was at times angry, agitated and upset, "there was never any indication he was incompetent to stand trial." As the court noted, a person can suffer from a mental disorder but remain able to understand the proceedings and assist in his or her defense. (See People v. Welch (1999) 20 Cal.4th 701, 742, overruled on another ground in People v. Blakeley (2000) 23 Cal.4th 82, 90, [more needed to raise doubt than " 'psychiatric testimony that defendant is immature, dangerous, psychopathic, or homicidal or such diagnosis with little reference to defendant's ability to assist in his own defense' "]; People v. Laudermilk (1967) 67 Cal.2d 272, 285.) The court stated that appellant was "very engaged with his attorney," "very engaged in his jury selection process," "clear about what was going on in the proceedings" and "aware of every aspect of the trial," and that he "followed my instructions," "was clear enough to ask me when he needed to leave the room or he needed a break," and "would get upset but then he would calm down and he comported himself." Given the trial court's observations, it is clear that the facts of appellant's offense did not provide substantial evidence of incompetence. Hampton's reference to having had a concern about appellant's mental state prior to the offense was similarly insufficient, as were appellant's statements at the preliminary hearing.
The trial judge did not preside over the preliminary hearing. The transcript of that hearing, while reflecting some disruptions, also reflects appellant's understanding of the proceedings. At the outset, the judge warned appellant against "another outburst," saying "I don't want to hear you yelling at a witness or at the district attorney or at me." Appellant replied, "Yes, sir," and the reporter's transcript reflects no disruptions during the course of testimony. At the end of the hearing, the court discharged appellant on a count charging him with threatening Hampton, held him to answer on the charge of threatening Stanton and confirmed that bail remained set at $100,000. Defense counsel stated that appellant was requesting a reduction in bail, which the court denied. Appellant asked, "Your Honor, may I address you, sir?" The court assented and appellant asked, "why?" Elaborating, appellant asked why bail was $100,000 when it was "supposed to be like $31,000," saying "you just heard that I was charged with threatening [Hampton], which never happened. It came from her manager, but in our private life in trying to brainwash this woman against me, Your Honor." Appellant said he was being held on a "false allegation" as to Stanton: "All I did was hurt her feelings, Your Honor. That's it. And to the truth about who and what she is. I did not violate no law, unless disrespect is under the Penal Code now if disrespect, is that under the Penal Code of a violation, Your Honor?" In what reads as a respectful colloquy with the judge, appellant expressed his belief that the allegations were false and that another DMV employee, who had given a statement to the California Highway Patrol saying she never heard appellant make a threat, should have been called as a witness; the judge assured him his attorney would be able to present his witnesses and his side of the story at trial. The judge commented, "I tried to hear you out, sir. We have been respectful to one another." Appellant said "I thank you so much," reiterated that this witness and Hampton should have been called, and, finally, said, "I don't even want that shit because it is false accusation, Your Honor. [¶] Thank you for hearing me out, and God bless you. And to those who don't believe in God, hell await you."
Around a year later, the judge who presided over the preliminary hearing presided over appellant's trial on another charge of making a criminal threat. At sentencing in that later case, the judge noted that when he first saw appellant at arraignment in the present case, appellant was unhappy with the bail decision and "cussed me out pretty good," but that when appellant next appeared, he was "perfectly wellbehaved and polite" and apologized for the earlier outburst."
Nor do we have a basis for rejecting the trial court's conclusion on the basis of appellant's inability to watch Hampton testify. A defendant's preference to absent himself from a portion of trial is not necessarily indicative of incompetence. (People v. Davis (1995) 10 Cal.4th 463, 526 & fn. 23 [defendant explained decision not to be present in the courtroom as attempt to "avoid problems" because it was so difficult to sit "listening to lies about me" with a straight face].) The trial court here specifically addressed this point in its comments after the new trial motion: "There's no question that there were times during the trial when [appellant] was agitated. He was upset. He had difficulty particularly hearing his former girlfriend testify. That was hard on him, and he did ask to be excused for a short time, but he came right back." The court then continued with its observations about appellant being "very engaged" in the trial, as indicated above. In short, the trial court was aware that appellant was having an emotional reaction to the testimony but saw no indication he was unable to understand the proceedings and assist in his defense. The record does not suggest appellant's response to Hampton's testimony was indicative of incompetence. Appellant interrupted the testimony, saying "I gotta use the rest room. I gotta use the restroom. Continue." The court told him they would wait for him to return and appellant responded, "Yes, ma'am. Thank you." After a brief break in which the court conferred with counsel, when the court told appellant it understood he wanted to waive his appearance for the remainder of Hampton's testimony and asked if this was correct, appellant replied affirmatively, and when the court instructed appellant not to go too far so there would be no delay when the witness was done testifying, he replied, "Okay."
Appellant's failure to appear in court on the morning of September 8 and outburst when he did appear were also insufficient to constitute evidence of incompetence as a matter of law. The trial court commented upon these points as well: "Now, there's no question that at the end, after the jury had begun their deliberations, that [appellant] started to absent himself a little bit more. He was harder to get into court; and at one point, he didn't appear though he had been ordered to. And he was quite agitated and upset particularly with his attorney when he came back. [¶] Did that mean he was incompetent at times? There was absolutely nothing in his behavior to indicate to this court—and frankly to [defense counsel] because he certainly didn't declare a doubt at that point—to indicate that [appellant] was not able to assist in his defense, that he was not competent. [¶] Was he in mental distress? Could be. He was clearly angry. He was clearly upset. Whether or not that—did he seem to the extent that he was so out of control or having a mental breakdown? No, absolutely not." The record thus indicates that appellant exhibited anger, agitation, perhaps a lack of impulse control in this last outburst. But none of this rose to the level of a " 'showing of "incompetence" that is "substantial" as a matter of law' " (Sattiewhite, supra, 59 Cal.4th at p. 465, quoting Mai, supra, 57 Cal.4th at p. 1033) so as to justify us in rejecting the trial court's considered evaluation of appellant's conduct at trial.
Appellant's claim of ineffective assistance of counsel is also unpersuasive. Appellant asserts that his attorney failed to safeguard his right to a fair trial by not moving for a mistrial and declaring a doubt as to appellant's competency after appellant's outburst on September 8. To prevail on this claim, appellant " ' "must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice." ' (People v. Hart (1999) 20 Cal.4th 546, 623.) Prejudice occurs only if the record demonstrates 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' (Strickland v. Washington (1984) 466 U.S. 668, 694 [(Strickland)].)" (People v. Lucero (2000) 23 Cal.4th 692, 728.)
Appellant argues that by failing to move for a mistrial, counsel permitted the case to go to verdict despite substantial evidence that appellant was not competent on September 8. As we have discussed, however, the evidence upon which this claim is based was not substantial evidence of incompetence, especially in light of the trial court's subsequently stated assessment of appellant's engagement and understanding of the proceedings during the trial. The court stated that "[t]here was absolutely nothing in his behavior to indicate . . . that [appellant] was not able to assist in his defense, that he was not competent," including on September 8, when he was "clearly angry," "clearly upset," and maybe "in mental distress," but "absolutely not" "to the extent that he was so out of control or having a mental breakdown." Even if counsel had declared a doubt as to appellant's competence on September 8, the court's observations make clear it would not have suspended proceedings at that point. " 'Counsel's assertion of a belief in a client's incompetence is entitled to some weight. But unless the court itself has declared a doubt as to the defendant's competence, and has asked for counsel's opinion on the subject, counsel's assertions that his or her client is or may be incompetent does not, in the absence of substantial evidence to that effect, require the court to hold a competency hearing.' " (Sattiewhite, supra, 59 Cal.4th at p. 465, quoting Mai, supra, 57 Cal.4th at p. 1033.)
Appellant suggests counsel's failure to move for a mistrial "allowed the jury to deliberate and convict" him despite the court's belief that the jury had been "put in fear by appellant's behavior." This argument mischaracterizes the record. Addressing a different issue—the juror who, after the case had concluded, raised concern about running into appellant in the future—the court said it thought the juror's concern arose when appellant "became very agitated at the end of the case, post-deliberation, and the jurors saw his agitation. I think that scared them." The court referred to this occurring "after the jury came back with their verdict and he was clearly at that point upset and agitated and the people saw it," and thought it scared all the jurors, not just the one who voiced concern.
Taken at face value, the court's remarks cannot be taken to indicate the court believed the jurors were scared by appellant's behavior while they were deliberating: The court referred to an incident that occurred "post-deliberation," "after the jury came back with their verdict. In fact, the court's recollection appears to have been inaccurate, as appellant was not present when the jury returned its verdict. The jury could not have witnessed appellant being "upset and agitated" when it returned its verdict, as the trial court described. In fact, the record shows that the jurors did not see the September 8 outburst appellant maintains should have led counsel (and the court) to declare a doubt as to his competence, which occurred during the jurors' deliberations, outside their presence.
As we have said, according to the minutes, appellant was absent when court resumed after the lunch break on September 8, the record gives no indication he had returned by the time the jury was sent to deliberate at 2:42 p.m. on September 8, and the outburst earlier described occurred between 2:42 p.m. and 2:55 p.m.; the jury returned with its verdict at 4:06 p.m.
II.
Appellant next contends the trial court erred in denying his motion for a new trial based on his incompetence at trial. Appellant argues that the reports of the two clinical psychologists who examined him shortly after the trial, combined with his "bizarre behavior" before and during trial, triggered a need for a full hearing on his competence during trial.
As indicated above, appellant was arrested on September 10 on the bench warrant the court had issued for his failure to appear at trial. The next day, defense counsel declared a doubt as to appellant's competence during trial based and proceedings were suspended under section 1368.
Appellant was examined by Dr. French on October 12, 2014. French noted that appellant had an extensive criminal history that included 12 arrests for threats or acts of violence, and his records indicated that he had been hospitalized for psychiatric reasons at least three times. French stated that appellant's history revealed "some reason" to believe he suffered from bipolar disorder. Appellant acknowledged having been "5150'd" a few times but he did not believe he suffered from a mental illness.
Appellant had been arrested on 23 occasions, 12 for threats or acts of violence; had 14 convictions, 5 for felonies; and had spent "significant time" in state prison for a murder conviction that French had been informed was subsequently overturned on appeal.
We affirmed appellant's murder conviction in 2003. (People v. Hunter, A091583 21666817.) Subsequently, the conviction was vacated after the trial court granted a petition for writ of habeas corpus based on juror misconduct. (Hunter v. Superior Court, A119001 2783321.) Appellant was acquitted after a retrial in 2008. (National Registry of Exonerations <https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=4000> [as of Jan. 11, 2018].)
Appellant's aunt had psychotropic medication prescribed for appellant in April and May 2013 that still contained "ample" numbers of pills; the medications were ones that would be typical for someone suffering a serious mood disorder with psychotic symptoms. The aunt told French that appellant's twin brother had a "similar psychiatric history" and that appellant's mental health had deteriorated "more precipitously" after his mother and a brother died within a year of each other "not too long ago." Appellant's former girlfriend said appellant was bipolar and suffered from manic depression, was not taking his medications and had a history of violence.
He said one of his hospitalizations was after sheriffs "kidnapped" him and that CHP officers "kidnapped" him when he was taken into custody after the DMV incident. Appellant told French about a Facebook page he created "to press his political complaint against the criminal justice system," in which he "referenced 'the modern day slavery trade; and 'Governor Brown's connection with Jim Jones back in 1978,' " and said the FBI took down the page.
Upon his arrest on September 10, appellant was described by San Francisco County Jail Psychiatric Services (JPS) as "exhibiting 'significant psychotic/mood symptoms' " and "given to 'delusional content about conspiracy theories,' " and also appeared to be under the influence of a stimulant. JPS clinicians told French they did not follow appellant after he came to jail on September 10. JPS chart notes from prior contacts with appellant described "behavior consistent with an untreated mood disorder."
The JPS diagnostic formulation on September 10 was "[p]olysubstance abuse dependence," "[p]sychotic disorder NOS versus substance-induced psychotic disorder" and "[p]ersonality disorder NOS."
At his interview on October 12, French found appellant to be tense, impulsive and "over-controlled"; his statements were articulate and well-organized but became "tangential on occasion," and his "[t]hought content" was "reality-based some of the time" but "went awry at points as [he] strenuously pled his case," and sometimes "verged on the paranoid and delusional." French believed that appellant "likely" suffered from a major mental disorder, "probably bipolar affective disorder, manic type," but had been largely uncooperative with treatment. French opined that appellant's condition was "somewhat improved" since his arrest but remained "potentially disruptive"; it was "unlikely" appellant, unmedicated, would be able to handle another trial without similar incidents and French was "not entirely persuaded" appellant could assist his attorney in a rational manner. French stated that the issue of appellant's trial competence would be "difficult to parse" because "away from the pressures of court and the perceived provocations of witnesses," appellant could appear "tolerably well behaved," but his beliefs about his case and his "conspiratorial notions of society remain poised like triggers, just waiting to be pulled by anything he believes to be unfair or abusive," and once in court, "he runs an unacceptably high risk for both quarreling with his public defender and arguing hotly with the bench." French concluded "with only mild reluctance" that appellant was "not presently competent to stand trial" and suggested "the court might want to seek a second opinion so that justice is fully and properly served."
Regarding the current offense, appellant told French he did not threaten Stanton, only "disrespected" her and disrupted the office, and said that Stanton testified at trial that he never threatened her. He explained that Hampton changed after she began working at the San Francisco DMV office, not talking to appellant and being hostile and violent toward him. He confronted Stanton because she had told Hampton to get a restraining order against him and he "surmised that her boss was brainwashing her against me." Appellant complained about his attorney not calling DMV employees or police officers as witnesses on his behalf, that there were no African-Americans on the jury and that the CHP had no legal jurisdiction to arrest him. He said that Hampton's testimony was a " 'fabrication' " and he became so angry listening to her that he said he needed to use the restroom and did not return, then came to court on the wrong day, found his attorney, the prosecutor and the judge together and walked up behind his attorney, who " 'got scared' " when he noticed appellant so close to him. Appellant saw this as " 'consciousness of some type of guilt.' " French reported that appellant became more agitated and tangential at this point in the interview, standing up to demonstrate how he had frightened his attorney, and that he had acknowledged "acting up in court after his bail was raised," saying he "jumped to his feet and 'disrespected the judge for doing that.' " French noted that, contrary to what appellant told him, the CHP report indicated that six of the DMV employees interviewed (other than Stanton and Hampton) heard appellant make his "threatening rant," at least three heard him make specific threats to hurt or kill Stanton and most observed him hurl an ATM card reader at Stanton.
His diagnosis was "Axis I (Rule out) bipolar affective disorder, manic type" and "(By history) unknown substance abuse" and "Axis II Antisocial personality disorder."
Appellant was subsequently evaluated by Dr. Lisa Jeko on November 15. She described his thought content as "focused on providing a detailed explanation of his point of view," a tendency he acknowledged. Jeko noted a "slight hypomanic quality" but "no evidence of a florid psychotic, delusional thought process or pressured speech." Appellant "painstakingly" acknowledged details of his behavior by providing explanations, such as acknowledging he called Stanton names and giving a detailed explanation of why he was distressed by her. He acknowledged feeling provoked when he feels his intelligence being questioned; for example, he said he "prepared the case for [his trial attorney] and he went left instead of right. It went nowhere for me." He minimized his past psychiatric treatment history and did not believe he had mental health symptoms requiring treatment with psychotropic medication.
Dr. Jeko found appellant's psychological condition improved from when he was evaluated by Dr. French, possibly due to the "structure of the jail setting, change in defense counsel and possible clearance of illicit substances from his system." His judgment about taking antipsychotic medication remained similarly impaired. She found him to have an adequate understanding of the charges against him, penalties he faced, available defenses, legal strategies, roles of courtroom participants and court procedures. He understood and was agreeable to plea bargaining but not to pleading not guilty by reason of insanity "because 'I was clearly competent,' " he demonstrated motivation to help himself in the legal process, and he conveyed an adequate ability to cooperate rationally with counsel and understood how to behave in a courtroom, although he stated he had never had difficulty behaving in court despite evidence to the contrary. To demonstrate his belief in his own competency, appellant told Jeko, "I understand that [current counsel] helped prevent me from going to Napa by contesting the reports and seeking you, Dr. Jeko, to evaluate me."
Dr. Jeko found appellant currently competent to stand trial. She stated, however, that when Dr. French evaluated him, "[g]iven the information available at that time, combined with [appellant's] clinical presentation, it is likely the undersigned may very well have found him incompetent then as well." Jeko stated that the stress of the relationship between appellant and his prior attorney might have "contributed to his presentation at that time" and exacerbated symptoms of his "likely underlying, untreated mood disorder."
Appellant argues that the trial court's own observations—the primary basis upon which the new trial motion was denied—cannot overcome the substantial evidence of incompetence he presented, including his "strange" behavior at the DMV office, his prior history of mental illness, his outburst on September 8, and his mental condition on September 10. The California Supreme Court has repeatedly affirmed that once a defendant presents substantial evidence of incompetence, " 'a doubt as to the sanity of the accused exists, no matter how persuasive other evidence—testimony of prosecution witnesses or the court's own observations of the accused—may be to the contrary . . . .' " (People v. Hale (1988) 44 Cal.3d 531, 539 (Hale), quoting People v. Pennington (1967) 66 Cal.2d 508, 518.) In that situation, a competency hearing is required; the judge " 'has no discretion to exercise.' " (Hale, at p. 539, quoting Pennington, at p. 518.)
We have already rejected appellant's argument that his behavior during the trial provided substantial evidence raising a doubt as to his competence as a matter of law. The new trial motion added to this picture the reports of Dr. French and Dr. Jeko. These reports do not change our conclusion because neither addressed appellant's competence during the trial.
Hale held that the trial court erred in rejecting the reports of two psychiatrists who found the defendant incompetent—contrary to three who found him competent—without a full hearing. The court had declared a doubt as to the defendant's competency at arraignment and set the matter for a competency hearing, but then proceeded without holding the competency hearing. The court reiterated that once a defendant presents substantial evidence of incompetence, the trial court is required to hold a competency hearing regardless of the strength of contrary evidence, and held that once the trial court orders a section 1368 hearing, it cannot "simply vacate the order." The court is not permitted, "without a full airing of the evidence to 'reject substantial psychiatric evidence of [defendant's] mental incompetence [i.e., the reports submitted by Drs. Faerstein and Moskowitz] and credit conflicting evidence to deny a hearing on competency.' " (Hale, supra, 44 Cal.3d at p. 541, quoting People v. Stankewitz (1982) 32 Cal.3d 80, 93.)
In Hale, unlike the present case, the psychiatrists evaluated the defendant's competence with respect to proceedings that had not yet occurred: The relevant question was whether the defendant had the ability to understand and assist counsel in proceedings that were to be held at that time. The same is true of the other cases appellant relies upon. (People v. Stankewitz, supra, 32 Cal.3d at pp. 88-89, 92-93 [trial court improperly denied competency hearing prior to trial where psychiatrist found defendant unable to assist counsel due to mental defect]; People v. Pennington, supra, 66 Cal.2d at pp. 511, 517-519 [§ 1368 hearing sought during trial; court improperly resolved conflicting evidence without full competency hearing].) Here, the psychologists evaluated appellant's competence at the time of the evaluations, but the relevant question was appellant's competence during the trial that had previously concluded. The reports did not address this question and therefore did not constitute substantial evidence that appellant was incompetent during trial.
In Lewis, supra, 43 Cal.4th at page 523, defense counsel declared a doubt at the beginning of the penalty phase. Lewis held that the trial court did not err in declining to conduct a competency hearing because there was not substantial evidence of incompetence: Defense counsel's opinion that defendant was incompetent was not in itself sufficient to compel a hearing; the medical expert's opinion that the defendant's brain functioning was abnormal related this abnormality to his violent behavior and inability to control impulses but did not discuss his competence to stand trial; and the defendant's outbursts at trial reflected understanding of the proceedings. (Id. at pp. 442-443, 525-526.)
United States v. Mason (4th Cir. 1995) 52 F.3d 1286, which appellant views as similar to his case, differs in the same critical respect. The defendant in Mason was convicted in the first phase of trial and, while released pending the second (forfeiture) phase the next day, attempted suicide. (Id. at p. 1287.) After a psychological evaluation concluded the defendant was suffering from a mental disease or defect requiring care and treatment, the district court held a hearing to determine his competence to proceed with the forfeiture phase and sentencing but denied motions for new trial based on alleged incompetence during the first phase of trial and for a hearing to determine competence at the first phase. Finding the district court abused its discretion, the Mason court noted that the psychological report indicated the defendant's mood disturbances had existed for up to two years and he had had severe alcohol abuse problems for the past few years, and, according to the affidavits of counsel, the defendant's treating physicians believed he was incompetent during the first phase of trial. (Id. at pp. 1290-1293.) Thus, while Mason was like the present case in that it involved a motion for a retrospective competency hearing, the medical opinions in that case directly addressed the issue of competency at the time of the prior trial proceedings while the reports here addressed competency at the time of the evaluation without discussing competency at the past trial.
Appellant assumes that the evidence of his mental condition on September 10, described in Dr. French's report, established that he was incompetent on September 8. As the trial court recognized, however, French's report "relate[d] back" only to the time appellant came into custody on the bench warrant and defense counsel declared a doubt. French related Streets's report that appellant had been difficult to represent, repeatedly caused disturbances in court and had been arrested on a bench warrant for missing an appearance, described appellant as "given to bellicose rants," and described the conduct JPS reported appellant exhibiting when he was arrested on September 10, but he did not express any opinion as to what these facts indicated with respect to appellant's competence on September 8, or the preceding days of trial.
A determination of incompetence does not necessarily mean the defendant was incompetent prior to that determination, as "the timeframe between proceedings occurring when a defendant is presumed competent and the finding of doubt as to competency can be a very brief time period." (People v. Smith (2003) 110 Cal.App.4th 492, 497, 505 (Smith) [rejecting claim that incompetency "necessarily predated by at least a few days the suspension of the criminal proceedings"].) Here, the trial court observed, when appellant's attorney raised the issue of competence at trial at a December 30, 2014 hearing, prior to filing the motion for a new trial, "as you know and I know from handling a lot of folks with mental health issues, things can change in the blink of an eye. It's not necessarily a decompensation over time. It could have been a decompensation after he absented himself." The trial court stated it would consider Dr. French's report with an open mind but "he wasn't here watching and observing [appellant]. The court was."
In Smith, a question as to the defendant's competence was raised on April 19, two days after he had waived his right to a jury trial. The court ordered an evaluation by jail staff, then a few days later declared a doubt as to competency and, after a section 1368 hearing, found the defendant incompetent. The court trial resumed after the defendant regained competency. (Smith, supra, 110 Cal.App.4th at pp. 497-499.) On appeal, the defendant argued his jury waiver was invalid because his "period of incompetence came so soon after the waiver was taken," claiming the close timing suggested he had already become mentally incompetent before the waiver and the prosecution therefore would be unable to prove the waiver was valid. (Id. at p. 501.) Because there was no evidence of incompetence on the day the waiver was taken, Smith rejected the argument that the "temporal relationship" between the waiver and the first sign of incompetence was sufficient to invalidate the waiver. (Id. at pp. 501-502.)
The court similarly rejected the argument that a mistrial should have been declared upon restoration of his competency because he was incompetent during earlier portions of the proceedings. (Smith, supra, 110 Cal.App.4th at pp. 503504.) After pointing out that the trial court, at the competency hearing, found the defendant presently incompetent, not incompetent on preceding days, and that no issue about the defendant's competence on those days had been raised when proceedings resumed upon restoration of competency, Smith observed that "proximity of time alone is not determinative; our finding rests on a failure of proof. The statutory procedure establishes a discernible point at which evidence of incompetence is sufficient to halt proceedings and renders further proceedings constitutionally invalid. Under the statute, the question of incompetency arises the moment the court expresses a doubt as to a defendant's competency (§ 1368, subd.(a)) and is based on the consideration of all the relevant circumstances, including the behavior of the defendant and the comments of counsel. (People v. Howard (1992) 1 Cal.4th 1132, 1164.) In the absence of evidence sufficient to find incompetency as a matter of law, or a retroactive finding of incompetency by the trial court, we cannot find the later incompetency finding under section 1369 reaches back to some unknown and unidentified point in earlier proceedings. Doing so would create an unmanageable and unjustified quagmire for appellate and trial courts alike." (Smith, at pp. 504505, fn. omitted.)
Criminal proceedings in the present case were suspended and proceedings under section 1368 instituted as soon as defense counsel declared a doubt as to appellant's competence, which occurred after appellant's arrest on September 10 and the related conduct resulting in new criminal charges and the behavior described in Dr. French's report upon appellant being received in jail. Appellant has not demonstrated that this action should have been taken sooner. As the new trial motion did not raise substantial evidence of incompetence at trial as a matter of law, we defer to the trial court's determination that a full competence hearing was not necessary on or before September 8, 2014.
III.
Appellant next contends the trial court erred in proceeding with the trial in his absence on the morning of September 8 without first determining whether his absence was voluntary, in continuing the afternoon session after appellant left the courtroom following his outburst at defense counsel and the court, and in denying the subsequent motion for a new trial based on these errors.
"A criminal defendant's right to be personally present at trial is guaranteed under the federal Constitution by the confrontation clause of the Sixth Amendment and the due process clause of the Fourteenth Amendment. It is also required by section 15 of article I of the California Constitution and by sections 977 and 1043. (People v. Cole (2004) 33 Cal.4th 1158, 1230; People v. Waidla (2000) 22 Cal.4th 690, 741.) [¶] A defendant, however, does not have a right to be present at every hearing held in the course of a trial. (People v. Hines (1997) 15 Cal.4th 997, 1039; People v. Price (1991) 1 Cal.4th 324, 407.) A defendant's right to be present depends on two conditions: (1) the proceeding is critical to the outcome of the case, and (2) the defendant's presence would contribute to the fairness of the proceeding. (Kentucky v. Stincer (1987) 482 U.S. 730, 745; People v. Perry (2006) 38 Cal.4th 302, 312.)" (People v. Concepcion (2008) 45 Cal.4th 77, 81-82.)
The right to be present may be waived either expressly or impliedly, and a waiver may be implied by "failure to return to trial while on bail." (People v. Concepcion, supra, 45 Cal.4th at p. 82.) "Section 1043, subdivision (b)(2), permits a court in a noncapital felony case to proceed with trial in a defendant's absence, if the defendant is present when the trial begins, but later voluntarily absents himself." (Id. at p. 82.) In reviewing a decision to proceed with trial in the defendant's absence, an appellate court must determine whether substantial evidence supports the trial court's determination that the defendant was voluntarily absent. (Id. at p. 84.)
Appellant argues that before proceeding with trial in a defendant's absence "sufficient facts must be before the court to establish what reasonably appears to be a prima facie showing of voluntary absence" (People v. Connolly (1973) 36 Cal.App.3d 379, 385), and there was no showing that he was voluntarily absent on the morning of September 8. We disagree with the latter point. A defendant's waiver of the right to be present " 'may be implicit and turn, at least in part, on the actions of the defendant.' " (People v. Gutierrez (2003) 29 Cal.4th 1196, 1206, quoting United States v. Watkins (7th Cir. 1993) 983 F.2d 1413, 1420.) Appellant had expressly waived his right to be present during Hampton's cross-examination on September 4. After returning to court for Bohorquez's testimony, appellant again expressly waived his right to be present for the court's discussion of jury instructions with counsel, and clearly indicated his understanding of the court's instruction to return at 9:15 a.m. on Monday, September 8. When he failed to appear on Monday morning, the court initially sent the jurors for coffee and waited 45 minutes, then announced that it had "some indication" appellant was on his way but was going to proceed in his absence so as not to further delay the jurors. After waiting another 15 minutes, the court proceeded with instructions and closing arguments, instructing that they were not to speculate as to why appellant was not present. Although the court did not make an express finding that appellant's absence was voluntary, such a finding is implicit in its decision to proceed with trial. Appellant's unexplained failure to appear, combined with his express waivers of his right to be present during parts of the proceedings on September 4, supported the conclusion that his absence was voluntary.
Appellant's argument to the contrary appears to be based largely on the premise that the court knew appellant had a history of mental illness based on Hampton's testimony and had seen his "mental agitation" during Hampton's testimony the day before, and therefore should have determined whether he was absent due to mental illness rather than voluntary choice. But Hampton's testimony did not describe appellant as suffering from mental illness; she only referred to having told Stanton that appellant might be "having another episode," was "focused" on Stanton and had come to Hampton's house uninvited and made a mess. And, as we have said, the court viewed appellant's reaction to Hampton's testimony as a result of strong emotion.
Appellant's behavior when he briefly appeared in court while the jury was deliberating—calling defense counsel "my boy" and "a piece of shit" and the court "bitch"—does not change the situation. It is apparent from the court's subsequent comments in denying the new trial motion that the court viewed appellant's outburst as a function of emotion and rage, not an indication of incompetence that would indicate either that his failure to appear earlier was not voluntary or that he was not competent to waive his right to be present.
In reviewing the trial court's decision, we consider the totality of the circumstances, including evidence later introduced to explain a defendant's previous failure to appear in court. (People v. Connolly, supra, 36 Cal.App.4th at p. 385.) Appellant's motion for a new trial argued that his absence from trial on September 8 was caused by his mental illness—specifically, a psychotic episode due to the stress of the trial. He submitted a declaration, dated January 20, 2015, in which he described having a "mental breakdown" during the trial because it became clear to him that his original attorney was working against him and with the prosecution, for example by eliciting false testimony from Hampton. When Hampton "lied with the aid[] of my own attorney," appellant "lost it and wanted to leave the courtroom at that very moment." He stated that he came to court on September 5, to find Streets, the prosecutor and the judge together, and Streets reacted to appellant as though he "saw a ghost," which appellant attributed to Streets "working with the prosecution in coalition [sic] and my so-call ex-girlfriend Ms. Hampton flat out false-hoods."
This explanation of appellant's reason for absenting himself from court on September 8 was not sufficient to demonstrate the trial court erred in concluding the absence was voluntary. The court had observed appellant during whatever incident occurred on September 5, as well as appellant's outburst on September 8, and saw no reason to question his competence. That appellant was having difficulty with his attorney and the trial did not necessarily render him unable to rationally determine whether and when to be present, as he had in fact done on September 4, when he left for a portion of Hampton's testimony, returned for the next witness, and then left again for the discussion of jury instructions. Aside from appellant's subjective retrospective view, the court had no reason to conclude he was in the midst of a psychotic episode on September 8 and therefore unable to attend court.
In any event, we disagree with appellant's view that he was prejudiced by the court's decision to proceed in his absence. "Under the federal Constitution, error pertaining to a defendant's presence is evaluated under the harmless-beyond-a-reasonable-doubt standard set forth in Chapman v. California (1967) 386 U.S. 18, 23. (People v. Robertson (1989) 48 Cal.3d 18, 62; see Campbell v. Rice (9th Cir. 2005) 408 F.3d 1166, 1171-1172.) Error under sections 977 and 1043 is state law error only, and therefore is reversible only if ' "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836.)' (People v. Jackson [(1996)] 13 Cal.4th [1164,] 1211; see also People v. Mayfield (1997) 14 Cal.4th 668, 738-739.)" (People v. Davis (2005) 36 Cal.4th 510, 532-533.)
Appellant was present for most of the trial; the portions he missed on September 8 were counsels' arguments to the jury, jury instructions and deliberations, and the rendition of the verdict. He does not suggest any tangible way in which he could have assisted his attorney during these parts of trial but relies upon cases discussing the significance of a defendant's presence when a verdict is delivered, largely due to its psychological impact on the jury. For example, the court in Wade v. United States (D.C. Cir. 1970) 441 F.2d 1046, 1050, stated that in determining prejudice from a defendant's absence when the court re-instructed and addressed a reportedly deadlocked jury and then when the jury rendered its verdict, "we must keep in mind the importance of a defendant's presence at all stages of his trial. Indeed, this aspect of a trial has constitutional prestige in the Sixth Amendment guarantee of the right to confront adverse witnesses—in good part a constitutional recognition of a psychological influence. Though perhaps to a less degree, the same influence pertains to the right of confrontation of defendant and jury, aside from the usefulness the accused may be to his counsel." (Id. at p. 1050.) Lee v. State of Alaska (1973) 509 P.2d 1088, 1094, finding prejudicial error in a defendant's absence when the jury returned its verdict, noted the "psychological distinction" between a general poll of the jury in the defendant's absence and an individual poll—which the defendant, if present, could have insisted upon—"requiring each juror to assume the burden of his decision and affirm it in the defendant's presence."
Unlike Wade and Lee, which emphasized that the jury had had difficulty reaching a verdict (Wade v. United States, supra, 441 F.2d at pp. 1047-1048, 1050; Lee v. State of Alaska, supra, 509 P.2d at pp. 1089, 1094; see also, United States v. Fontanez (2d Cir. 1989) 878 F.2d 33, 38 [reversible error where defendant absent during instructions to deadlocked jury]; but see Larson v. Tansy (10th Cir. 1990) 911 F.2d 392, 395 [prejudice from defendant's absence during instructions, arguments, rendering of verdict; no reference to closeness of case]), the record here suggests no such problem. Contrary to appellant's assertions, the case against him was strong. Defense counsel acknowledged in closing argument that appellant went to the DMV and was hostile, disrespectful, yelled and used profanity. The only question was whether he threatened Stanton within the meaning of section 422—in essence, a willful threat of death or great bodily injury made with the intent that Stanton take the statements as a threat and causing Stanton reasonably to fear for her own safety. (People v. Toledo (2001) 26 Cal.4th 221, 227-228.) Stanton's testimony clearly demonstrated these elements. Appellant presented two witnesses who testified they did not hear actual threats, but both acknowledged they did not hear everything appellant said during the incident and Bohorquez testified that he was more scared than he had ever been in nine years working at the DMV.
"In order to prove a violation of section 422, the prosecution must establish all of the following: (1) that the defendant 'willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,' (2) that the defendant made the threat 'with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out,' (3) that the threat—which may be 'made verbally, in writing, or by means of an electronic communication device' "—was "on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,' (4) that the threat actually caused the person threatened 'to be in sustained fear for his or her own safety or for his or her immediate family's safety,' and (5) that the threatened person's fear was 'reasonabl[e]' under the circumstances." (People v. Toledo, supra, 26 Cal.4th at pp. 227-228.)
Appellant asserts that, as in Lee and the other cases above, he was present at trial and then "disappeared" just when the jury heard final arguments and then reached its verdict. But, in Lee, Fontanez, and Wade, the defendants were consistently present until the jury left to deliberate. Here, the jury was aware that appellant left the courtroom during Hampton's cross-examination and was instructed at that time that they were not to speculate about the reason he did so or consider it for any purpose. On the next day of trial, when appellant was not present for the morning session, the court again instructed the jurors not to speculate about or consider this "for any purpose during the remainder of the trial." Thus, unlike the situation in the cited cases, appellant's absence on September 8 was not an unprecedented surprise to the jurors, and they were specifically instructed not to consider it for any purpose. We see no reasonable possibility that appellant could have assisted counsel or that his presence could have influenced the jury, during the portions of trial he missed—the court's instructions to the jury, counsels' arguments and the jurors' deliberations and return of their verdict. Any error in proceeding without further investigation into the reason for appellant's absence on September 8 was harmless beyond a reasonable doubt.
After Bohorquez testified, a juror sent a note to the court asking why appellant had returned; the court told counsel that when it instructed the jury, it would reiterate that the jurors were not to speculate about or consider appellant's "comings and goings."
Appellant suggests that his absence was particularly problematic because "the jury was apparently deliberating with the memory of appellant's agitation of September 8, 2014, coloring their discussions, as the trial court believed appellant's agitation had scared the jury." As we have discussed, there is no basis for this suggestion. The court said it thought the jurors had been scared by appellant's agitation after the verdict was delivered; it made no suggestion the jurors were scared during deliberations. The court's remark was made in reference to the concern expressed by the juror who spoke with the court after the trial had ended, not in reference to anything that could have affected deliberations. And, in fact, the jurors did not see the outburst on September 8 at all.
IV.
Appellant's final contention on his direct appeal is that his right to a fair trial was violated by juror misconduct during voir dire. The alleged misconduct was the failure of Juror No. 6 to disclose that she had previously served on a jury and had been threatened by the defendant in that case while he was released on bail.
A few minutes after the jury was discharged, the court went back on the record to explain that one of the jurors had expressed feeling "just a little nervous" about the possibility of having contact with appellant in the future and "whether she should report that and if so, to whom." The juror was concerned that she not be identified: She asked, "Is this going to be accessible to anybody? Is this record—is this a public record? 'Cause I'm not saying anything else, then.' " After the juror was assured that she would be referred to as "Juror No. 6" with "[n]o names," the court explained that the juror had said she had previously been on a jury in a homicide case in which the defendant lived very close to her and they would run into each other in the neighborhood because he was released on bail. The court stated that it had assured the juror it did not think she would run into appellant because he did not live in her neighborhood, and told her who to contact at the court if she had any problems. The court ascertained that Juror No. 6 did not share this information with any of the other jurors, and asked whether the question of appellant having contact with her was going through her mind while she was considering the verdict. Juror No. 6 stated, "I put that aside during deliberations." In response to further questions from counsel and the court, the juror stated that the defendant in the other case had threatened her when she saw him in the neighborhood; that she focused only on the evidence presented at trial during deliberations and based her verdict only on the evidence, not her prior experience; and that when she heard the nature of the present case during jury selection, her experience with the prior trial was not a concern for her.
During voir dire, providing the initial information each prospective juror was asked for, Juror No. 6 said she had been on a jury in a criminal case in Contra Costa County, the jury reached a verdict, and she was not the foreperson. The court asked when the trial was and Juror No. 6 said she believed it was 1977. She was asked no further questions about her prior jury service. The jurors were told that appellant was charged with making a criminal threat.
The court initially told all jurors to introduce themselves with specified basic information including whether they had ever served on a jury. As voir dire continued, it became clear that anyone with prior jury experience would be asked whether they were the foreperson and whether the jury had reached a verdict.
In appellant's view, Juror No. 6 committed misconduct by failing to disclose that her prior experience as a juror involved her being threatened by a defendant convicted of murder despite knowing from the voir dire that appellant was accused of threatening another person, and her posttrial expression of concern indicated she was biased against appellant because of her past jury service.
Appellant raised the issue of juror misconduct as one of the grounds of his motion for a new trial. Based on its postverdict discussion with the juror, as well as notes from a defense investigator's conversation with a different juror, the court concluded there was no misconduct because the juror did not willfully withhold information, did not consider her prior experience in deliberating and reaching her verdict, and did not share information about her prior jury experience during deliberations. The court believed the juror was not concerned about the past experience during jury selection but became concerned later, after the jurors witnessed appellant becoming very agitated at the end of the case, which the court thought "scared them." As we have discussed, however, the court's recollection concerning this end-of-trial incident must have been faulty, as the court described the jury seeing appellant's distress after the verdict was read but the record shows that appellant was not in court when the jury returned its verdict and that appellant's outburst on September 8 occurred outside the jury's presence.
" ' "Because a defendant charged with a crime has a right to the unanimous verdict of 12 impartial jurors [citation], it is settled that a conviction cannot stand if even a single juror has been improperly influenced." [Citations.]' (People v. Holloway (1990) 50 Cal.3d 1098, 1112, disapproved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.)" (People v. Nesler (1997) 16 Cal.4th 561, 584.) "[T]he pretrial voir dire process is important because it enables the trial court and the parties to determine whether a prospective juror is unbiased and both can and will follow the law." (People v. Wilson (2008) 44 Cal.4th 758, 822.) " 'A juror who conceals relevant facts or gives false answers during the voir dire examination thus undermines the jury selection process and commits misconduct. [Citations.]' (In re Hitchings [(1993)] 6 Cal.4th [97,] 110-111, fn. omitted; accord, People v. Blackwell (1987) 191 Cal.App.3d 925, 929 [(Blackwell)].)" (People v. Duran (1996) 50 Cal.App.4th 103, 112.)
" 'Although intentional concealment of material information by a potential juror may constitute implied bias justifying his or her disqualification or removal [citations], mere inadvertent or unintentional failures to disclose are not accorded the same effect. "[T]he proper test to be applied to unintentional 'concealment' is whether the juror is sufficiently biased to constitute good cause for the court to find under Penal Code sections 1089 and [former] 1123 that he is unable to perform his duty.' " (People v. McPeters (1992) 2 Cal.4th 1148, 1175; see People v. San Nicolas (2004) 34 Cal.4th 614, 644 [quoting McPeters with approval].)" (People v. Wilson, supra, 44 Cal.4th at p. 823.)
Appellant urges that Juror No. 6's statement that the past incident had no effect on her deliberations and decision in the present case is inadmissible under Evidence Code section 1150 as "verbal reflection of her mental processes during deliberations." (People v. Duran, supra, 50 Cal.App.4th at p. 113.) Even so, the circumstances support the trial court's conclusion that the juror did not intentionally conceal information about her prior jury experience and was not biased as a result of it.
Evidence Code section 1150 provides, in pertinent part: "(a) Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined."
"Intentional concealment of relevant facts or the giving of false answers by a juror during the voir dire examination constitutes misconduct. (People v. Castaldia (1959) 51 Cal.2d 569, 572; People v. Diaz (1984) 152 Cal.App.3d 926, 931-939.)" (Blackwell, supra, 191 Cal.App.3d at p. 929.) "If the voir dire questioning is sufficiently specific to elicit the information which is not disclosed, or as to which a false answer is later shown to have been given, the defendant has established a prima facie case of concealment or deception. (See, e.g., Moore v. Preventive Medicine Medical Group, Inc. (1986) 178 Cal.App.3d 728, 742; People v. Jackson (1985) 168 Cal.App.3d 700, 705-706.)" (Blackwell, at p. 929.)
In Blackwell, the defendant, who shot and killed her husband on a day when both had been drinking, claimed to have done so to prevent him beating or killing her, as he had subjected her to ongoing physical abuse, she suffered from " 'battered wife syndrome,' " and shortly before the shooting he had beaten her, held a gun to her head and threatened to kill her. (Blackwell, supra, 191 Cal.App.3d at pp. 927-928.) During jury selection, one juror failed to reveal that she had been the victim of an abusive former husband who became violent when drinking and that based on her own experience, she believed the defendant should have been able to deal with the situation without resorting to violence. (Id. at p. 928.) The prospective jurors had been questioned collectively and individually about experience with alcoholism and/or domestic abuse and this juror had answered in the negative when asked whether anyone in her family had problems with alcohol, whether she had experienced domestic or spousal abuse in her family and whether she had a preconceived position concerning battering or abuse, and had said her husband drank occasionally. (Ibid.) Blackwell reversed the trial court's denial of a motion for new trial based on juror misconduct, stating that the questioning during voir dire "was sufficiently clear to alert her to provide information about her own prior experiences" and she did not say she "misunderstood or was confused by the questions" or failed to inform the court about her former husband "because of oversight or forgetfulness." (Id. at pp. 929-930.) "[T]he subject voir dire questions in the instant case were sufficiently specific and free from ambiguity so that the only inference or finding which can be supported is that Juror R. was aware of the information sought and deliberately concealed it by giving false answers." (Id. at p. 930.)
By contrast, in People v. Kelly (1986) 185 Cal.App.3d 118, a juror in the trial of a defendant charged with 17 felony counts of sex crimes against two young boys failed to disclose in voir dire that when she was young, her uncle came into the room where she was playing, started to unbuckle his belt and said, " 'I will show you mine if you show me yours.' " (Id. at p. 120.) The encounter ended because her grandmother came in, took her to her parents and told them what happened and her parents did not believe her. (Ibid.) Testifying at a hearing on the defendant's motion for a new trial, the juror explained that she did not relate this incident when jurors were asked if they had been victims of crime because two days earlier she had raised it when that question was asked and "it was discarded," so she did not see a reason to repeat the embarrassment and humiliation she had felt discussing it. (Ibid.) The juror said the incident did not enter into her deliberations, she was fair and impartial and based her verdict solely on the evidence. (Ibid.) Affirming the trial court's conclusion that there was no misconduct, Kelly noted that the questions during voir dire focused on "serious crimes and specifically on the types of crime involved in the instant case" and the jurors were not asked whether they had been victims of child molestation. (Id. at pp. 121-122.)
Similarly, People v. Dyer (1988) 45 Cal.3d 26, 59, upheld the denial of a motion for mistrial based on a juror's failure to reveal that her brother had been shot in the head in response to the question during voir dire whether any family member had been a crime victim. The juror explained that she believed her brother had been shot by accident. (Id. at p. 58.) The Dyer court observed that the voir dire questions were ambiguous and the juror's response probably would have been different if the question had been whether a family member had been "shot or killed by another person." (Id. at p. 59.)
In the present case, Juror No. 6 answered the questions she was asked on voir dire: She disclosed that she had served as a juror in a criminal trial over 30 years before, that the jury had reached a verdict and that she had not been the foreperson. She was not asked any further questions about her experience. There was no nondisclosure in face of specific questioning, as occurred in Blackwell, and the trial court found the juror credible when she said she had not been concerned about her past experience when she heard the nature of the present case during voir dire.
Appellant stresses the juror's fear when she discussed the situation with the court and counsel: As we have said, she indicated at the outset that she would not continue the discussion unless her name remained confidential. We see no basis, however, for appellant's conclusion that this fear demonstrated Juror No. 6 was unable to perform her duty as a juror. There was no similarity of circumstances between the juror's past experience of being threatened by the defendant in a case in which she sat on the jury and the threat with which appellant was charged. It appears that the juror suddenly realized, upon completion of the case, that she might run into appellant as she had run into the defendant in the other case, on which she had been a juror and was disturbed by the possibility of this happening again. There is nothing to indicate this experience from several decades in the past colored her view of the evidence in the present case.
V.
We turn now to the related petition for writ of habeas corpus. At the end of April 2015, slightly less than three months after being placed on probation in the present case, appellant was arrested for allegedly making criminal threats to the manager of a McDonald's in San Francisco. He was convicted after a jury trial in July 2015, and sentencing was continued in order to obtain a psychological assessment. Ultimately, in February 2016, Neuropsychologist Amanda Gregory rendered a lengthy report describing appellant's long history of psychiatric issues, including hospitalizations and Welfare and Institutions Code section 5150 psychiatric holds, diagnosing him with "Bipolar I Disorder, Most Recent Episode Manic with Psychotic Features, Currently in Partial Remission," and opining that this disorder "played a role" in his behavior at McDonald's.
For continuity, we continue to refer to "appellant" in discussing the petition.
Gregory also diagnosed "Cannabis Use Disorder, Moderate, [i]n a Controlled Environment" and "Antisocial Personality Disorder."
On February 24, 2016, appellant filed a petition for writ of habeas corpus in the superior court, arguing he received ineffective assistance of counsel at trial due to his attorney's failure to investigate whether appellant's bipolar disorder illness played any role in the offense charged in the present case.
In addition to Dr. Gregory's report, the petition provided emails documenting that two days after appellant's arrest in the present case, the public defender who originally handled the case requested a "drive by evaluation" because appellant reported a history of "5150s" and being "in and out of psych facilities." Dr. Jeff Gould responded that after seeing appellant on June 15, 2014, he concluded appellant was "not competent at this time due to his manic symptoms and complete inability to discuss anything but his version of events and the outcome in his case that he thinks is right." Dr. Gould stated that appellant "likely does suffer from Bipolar Disorder and is currently not taking meds. Getting a copy of jail psych records or medical records from his past hospitalizations would be very helpful for making this determination as well."
Three other exhibits accompanied the petition: Material on diagnostic criteria for bipolar I disorder; appellant's opening brief on the appeal in the DMV case; and a letter urging leniency from the attorney who had represented appellant on a habeas petition following his murder conviction (see fn. 8, ante.)
The trial court denied the petition on April 1, 2016, finding that appellant had not shown trial counsel was aware of Gould's email and that even if counsel was aware of it, appellant had not established a prima face claim of ineffective assistance of counsel for three reasons. First, the email addressed appellant's competence to stand trial and did not indicate appellant had a mental defect that might have affected his ability to form the intent required for conviction or rendered him unable to control his actions. Second, appellant did not explain the effect of bipolar disorder on his thinking or show how it would be presented as a defense. Third, appellant failed to show prejudice because the evidence showed behavior spanning a number of days that reflected increasing anger at the victim, making it unlikely his actions were spontaneous or involuntary due to bipolar disorder.
On July 19, 2017, appellant filed a petition for writ of habeas corpus in this court, again raising his claim of ineffective assistance of counsel. This petition is based on a declaration from Dr. Gregory, dated July 18, 2017, describing the testimony she would have given if she had conducted her evaluation of appellant prior to the trial in the present case and had been called as a witness at trial. The declaration states that Dr. Gregory's testimony would have addressed appellant's diagnoses and psychiatric history, the symptoms of bipolar disorder, manic episodes and psychosis, and how appellant's psychiatric history and symptoms affected his mental state on the day of the DMV incident. Dr. Gregory relates that appellant had several psychiatric admissions in April and May 2013, and was hospitalized shortly before the DMV incident, from May 31 to June 3, 2014, for "psychosis and mood symptoms," and refused medication. On June 5, 2014, he was contacted by police during an incident in which he was "yelling and behaving erratically and in a threatening manner." Dr. Gregory opines that "[w]ithout medication or other treatment, [appellant] likely continued to suffer from mania and psychosis caused by his Bipolar I Disorder on the day of the incident at the DMV on June 10, 2014."
In addition to her main diagnoses, Dr. Gregory noted that appellant reported having been assaulted by sheriff's deputies in December 2010, resulting in a concussion and wrist strain and followed by symptoms of posttraumatic stress disorder, and at the time of the evaluation reported ongoing residual symptoms related to the traumatic experience, including hypervigilance to threats in his environment.
Dr. Gregory further states that appellant was subsequently placed on a 5150 hold on April 16, 2015, and diagnosed with bipolar affective disorder (synonymous with bipolar I disorder), refused oral medication and refused referrals upon release. At the time of the evaluation in November 2015 and February 2016, appellant's insight into his illness was impaired, his descriptions of events were "often rambling and involved persecutory themes, and his thoughts appeared to border on delusional at times," and Gregory concluded his bipolar I disorder was in partial remission.
Appellant was convicted of a specific intent crime: Among other elements, a conviction under section 422 requires proof that the defendant "made the threat 'with the specific intent that the statement . . . is to be taken as a threat.' " (People v. Toledo, supra, 26 Cal.4th at p. 227.) He argues that his trial attorney rendered ineffective assistance of counsel by failing to present evidence that appellant lacked the specific intent required for conviction of making a criminal threat because he was suffering a bipolar I disorder manic episode with psychotic features at the time of the offense, a defense known as "diminished actuality." "To support a defense of 'diminished actuality,' a defendant presents evidence of voluntary intoxication or mental condition to show he 'actually' lacked the mental states required for the crime. (People v. Steele (2002) 27 Cal.4th 1230, 1253.)" (People v. Clark (2011) 52 Cal.4th 856, 880, fn. 3; People v. Elmore (2014) 59 Cal.4th 121, 139 (Elmore).) Under section 28, subdivision (a), "evidence of mental disorders is admissible 'on the issue of whether or not the accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged.' " (Elmore, at p. 139.) This is to be distinguished from evidence of a defendant's "capacity to form a required mental state," which is barred by section 28, subdivision (a), "consistent with the abolition of the diminished capacity defense." (Elmore, at p. 139, italics added.)
In order to prevail on a claim of ineffective assistance of counsel, appellant "must show that his attorney's 'representation fell below an objective standard of reasonableness' 'under prevailing professional norms' ([Strickland], supra, 466 U.S. at p. 688; In re Hardy (2007) 41 Cal.4th 977, 1018) and '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], at p. 694)." (In re Valdez (2010) 49 Cal.4th 715, 729-730 (Valdez).)
" 'Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy." [Citation.]' ([Strickland], supra, 466 U.S. at p. 689.)" (Valdez, supra, 49 Cal.4th at pp. 729-730.)
But "deferential scrutiny of counsel's performance is limited in extent and indeed in certain cases may be altogether unjustified. '[D]eference is not abdication' (People v. McDonald (1984) 37 Cal.3d 351, 377); it must never be used to insulate counsel's performance from meaningful scrutiny and thereby automatically validate challenged acts or omissions. Otherwise, the constitutional right to the effective assistance of counsel would be reduced to form without substance." (People v. Ledesma (1987) 43 Cal.3d 171, 217 (Ledesma).)
Under the constitutional right to effective assistance of counsel, "the defendant can reasonably expect that in the course of representation his counsel will undertake only those actions that a reasonably competent attorney would undertake. But he can also reasonably expect that before counsel undertakes to act at all 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; People v. Frierson (1979) 25 Cal.3d 142, 166; see also Strickland, supra, 466 U.S. at [p. 690] [implying that counsel must make 'all significant decisions in the exercise of reasonable professional judgment' (italics added)].)" (Ledesma, supra, 43 Cal.3d at p. 215.)
"In evaluating counsel's performance, we assess both the reasonableness of counsel's decisions and the reasonableness of the investigation that underlay each decision. '[B]efore counsel undertakes to act, or not to act, counsel must make a rational and informed decision on strategy and tactics founded upon adequate investigation and preparation.' (In re Marquez [(1992)] 1 Cal.4th [584,] 602; accord, In re Avena [(1996)] 12 Cal.4th [694,] 722; see also In re Jones (1996) 13 Cal.4th 552, 564-565.) ' "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." ' (In re Lucas (2004) 33 Cal.4th 682, 722, quoting Strickland, supra, 466 U.S. at pp. 690-691.)" (In re Thomas (2006) 37 Cal.4th 1249, 1258.)
Arguing that trial counsel deprived him of a potentially meritorious defense, appellant maintains that there is no evidence counsel did any investigation or research into the nature or validity of a defense based on mental state even though the deputy public defender who initially represented appellant asked for a psychological evaluation of appellant and was informed by Dr. Gould that appellant likely suffered from bipolar disorder. In addition to Gould's opinion, appellant argues trial counsel was or should have been aware of appellant's mental health issues before and during the trial because of the nature of the charge itself and testimony regarding appellant's "bizarre behavior in the DMV office"; appellant's statements at the preliminary hearing that his former girlfriend being brainwashed by Stanton and that "hell awaited non-believers"; appellant's inability to watch his former girlfriend testify, to the point that he asked to be excused; his unexplained failure to appear for the morning session of trial on September 8, 2014; and his outburst when he did appear, in which he called his attorney "boy" and "piece of shit" and called the judge a "bitch." In arguing that counsel would have discovered the potentially meritorious defense if he had acted upon this awareness and investigated further, appellant maintains that Dr. Gregory's declaration demonstrates her testimony at trial would have supported a diminished actuality defense by establishing that appellant was likely suffering from mania and psychosis due to bipolar I disorder at the time of the DMV incident, "impairing both his ability to control his speech and accurately perceive the situation around him."
The declaration in fact states only that appellant "likely continued to suffer from mania and psychosis caused by his Bipolar I Disorder on the day of the incident at the DMV," without the additional description of impairment appellant attributes to it. That additional description appears in Dr. Gregory's declaration filed in the writ proceeding challenging appellant's conviction in the subsequent criminal threat case.
The record does not disclose whether trial counsel was in fact aware of Dr. Gould's conclusion that appellant likely was suffering from bipolar disorder and not taking medication when Gould saw him two days after the DMV incident. Trial counsel and the attorney with whom Dr. Gould exchanged emails were both public defenders in the San Francisco County Public Defender's Office. In the normal course of business, we would expect that when the case was transferred from one attorney to the other, Dr. Gould's email would have been communicated or at least documented in the case file. Appellant has not explained how he obtained the copies of the emails contained in exhibit E to the superior court petition, but there was no showing the emails were not communicated to trial counsel or contained in appellant's case file.
Appellant's petition is based on the assumption that trial counsel must have been unaware of Dr. Gould's opinion because counsel necessarily would have investigated and presented a diminished actuality defense if he had been aware of the email. The presumptions we must apply, however, do not favor appellant: It is appellant's burden to overcome the "strong presumption" that counsel acted "within the wide range of reasonable professional assistance," considered not with the benefit of hindsight, but from counsel's perspective at the time. (Valdez, supra, 49 Cal.4th at pp. 729-730.) Appellant has not made the necessary showing.
Even assuming trial counsel was aware of Dr. Gould's view that appellant likely suffered from bipolar disorder, that information did not suggest that this might constitute a defense to the crime with which he was charged. Dr. Gould did not address appellant's mental state on the day of the offense but rather appellant's competency to stand trial at the time Dr. Gould saw him a few days later. Dr. Gould concluded appellant was not competent because he was not able to consider anything other than his version of the events and correct outcome for the legal proceedings. The email did not suggest that appellant's mental condition at the time of the offense might have been so distorted as to negate the intent required for conviction.
Appellant's behavior at the DMV, while loud, aggressive and entirely inappropriate, was not so "bizarre" as to suggest he did not know where he was or what he was doing. He was insistently focused on Stanton, and clearly announced that he had come with the intention of in some way punishing her for something he perceived her to have done. Moreover, the prosecution's evidence showed that appellant had been angry at Stanton for some time. Appellant had spoken to Stanton a couple of weeks prior to the incident, asking for Hampton, and had left when Stanton said Hampton was not there and the department's policy did not allow her to tell appellant when Hampton would return. After this, and a few days before the June 10 incident, Hampton asked to speak with Stanton. Nervous and agitated, after asking what had happened the day appellant came in and asked for her, Hampton said that appellant was "obsessed" with and angry at Stanton, and that he was threatening to "come and get" her. Stanton testified that Hampton was concerned because when she asked appellant why he was "so obsessed" with her boss, he just kept calling Stanton names. Stanton testified, "She said that she was prepared to do a restraining order and she just wanted me to watch my back." At the time, Stanton was more concerned about Hampton's safety than her own, but when he came to the DMV on June 10, it appeared he was "carrying out his threat."
This evidence that appellant was angry at Stanton over a period of time and voiced threats against her before the incident on June 10 seriously undermines the idea that he did not intend Stanton to take his words as threats during the incident itself. Given these facts, we cannot view the nature of the charge or appellant's conduct at the DMV as compelling a reasonable attorney to consider the possibility that appellant was suffering from a mental illness that negated the intent that appeared to be reflected in his words and conduct.
Appellant also points to the events during these proceedings that he raised in arguing, on his direct appeal, that a doubt as to his competence to stand trial should have been declared: his statements at the preliminary hearing that his former girlfriend was being brainwashed by Stanton and that "hell awaited non-believers"; his inability to watch his former girlfriend testify, to the point that he asked to be excused; his unexplained failure to appear for the morning session of trial on September 8, 2014; and his outburst when he did appear, in which he called his attorney "boy" and "piece of shit" and called the judge a "bitch." As previously discussed, appellant's statements and conduct at these points reflected high emotion, agitation and anger, but they did not suggest disorientation or lack of understanding about where appellant was or what had happened during the DMV incident. Especially in light of the evidence indicating appellant had been angry at and threatened Stanton even before he came to the DMV on June 10, appellant has not shown that these factors necessarily would have caused a reasonable attorney to question whether appellant's mental state at the time of the offense was such that he might not have intended his statements to Stanton to be taken as threats.
Appellant relies upon Ledesma, supra, 43 Cal.3d 171, which found ineffective assistance of counsel in part due to trial counsel's failure to investigate a diminished capacity defense in a first degree murder case despite awareness of facts that suggested the defense might apply. The attorney explained that he did not consider the defense because of "the detailed nature of defendant's alleged confession, defendant's seeming rationality, the substance of [the court-appointed psychiatrist's] report, and his personal belief that a person's use of drugs or alcohol does not affect his criminal responsibility." (Id. at p. 196.) Instead, he agreed to assist in developing an alibi defense the defendant had begun to prepare with prior counsel. (Ibid.)
In rejecting the Attorney General's arguments that the attorney was excused from any duty to investigate a diminished capacity defense, the Ledesma court noted that the tone of the confession, which was "made about seven months after defendant had been put in custody and denied access to PCP and other unlawful substances," said "little if anything about defendant's state of mind at the time of the killing" (Ledesma, supra, 43 Cal.3d at pp. 222-223) and that the psychiatrist's report not only pertained to competence to stand trial rather than mental state at the time of the offenses, but actually gave some reason to question the defendant's mental state by its reference to the defendant's serious drug use. (Id. at p. 223.) Moreover, the attorney acknowledged that he did entertain some doubt about the defendant's mental state: He obtained the psychiatrist's evaluation because the defendant told him he had "been using a lot of drugs" and the "tone" of the alleged confession caused the attorney to think it was "a little bit strange." (Id. at p. 223.) In addition, counsel was in possession of a psychosocial report that detailed the defendant's long history of severe drug abuse and "troubled life"; these factors, especially the latter, had obvious bearing on the potential for a meritorious claim of diminished capacity. (See id., at pp. 197-204.)
The failure of the attorney in Ledesma was stark: Representing a defendant charged with capital murder at a time when diminished capacity was an available defense, counsel chose not to follow up on obvious indications that the defense might apply for stated reasons that did not withstand scrutiny. The situation in the present case is very different. Evidence of mental illness could not be used to show appellant's capacity to form the required specific intent was impaired, only to show he did not actually have the required intent at the time of the offense. (Elmore, supra, 59 Cal.4th at p. 139; § 28, subd. (a).) Simply demonstrating that appellant suffered from bipolar disorder would not be enough: The defense would have to demonstrate how that disorder in fact caused him to not actually have the intent he appeared to demonstrate at the time of the incident. Appellant appeared to know exactly where he was and who he was addressing. Assuming, as the jury concluded, that appellant made the threats Stanton described, his words and conduct, coupled with the evidence that, rather than acting spontaneously, he had previously expressed a threat against Stanton, are difficult to reconcile with anything other than an intent to cause Stanton to believe he was threatening her. Meanwhile, appellant denied making the threats, and counsel had two witnesses to the incident to testify that they did not hear him make such threats.
Unlike the situation in Ledesma, we have no statement from trial counsel explaining his choice of defense strategy. While appellant has no obligation to provide one, he does have the burden of establishing a prima facie case for relief. Appellant's assertion that counsel failed to investigate a defense based on mental state appears to be based on the assumption that if he had investigated, he would have discovered the information described in Dr. Gregory's report and declaration and used it to present a diminished actuality defense at trial. But we cannot ignore the possibility that counsel did make some effort to investigate appellant's state of mind at the time of the offense and decided not to present this defense, whether because he believed it would be too difficult for the jury to understand or accept that mental illness could negate the intent required in a criminal threat case, because he believed a fact-based defense (that appellant did not say what Stanton described) would be stronger, or for some other reason. We cannot conclude that no reasonable attorney would have made such a decision.
This conclusion makes it unnecessary for us to consider whether appellant might have achieved a more favorable outcome if a diminished actuality defense had been presented at trial. We note, however, that the evidence we have discussed indicating appellant was angry at Stanton and voiced a threat against her before the DMV incident would also tend to undermine the likelihood of prejudice. --------
DISPOSITION
The judgment is affirmed.
The petition for writ of habeas corpus is denied.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Stewart, J.