Opinion
D076538
03-30-2020
THE PEOPLE, Plaintiff and Respondent, v. VICTOR FLORES LEYVA, Defendant and Appellant.
Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General of California, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RIF1605689) APPEAL from a judgment of the Superior Court of Riverside County, Randall D. White, Judge. Affirmed and remanded for resentencing. Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General of California, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
Victor Flores Leyva was convicted by jury of first-degree murder for killing his partner of eight years. On appeal, he argues the court erred in limiting the testimony of his expert witness. He also raises various objections to his fines and fees. We agree his sentence must be reconsidered, but in all other respects we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On November 20, 2016, Victor Flores Leyva killed his partner, Jane Doe. Their six-year-old daughter, A.F., witnessed the events before and immediately after her mother was stabbed. Flores Leyva was charged with murder; it was also alleged that he personally used a deadly and dangerous weapon.
To protect personal privacy, we use "Jane Doe" to refer to the victim (consistent with its use in the record) and initials to refer to the victim's close family members. (Cal. Rules of Court, rule 8.90.)
At trial, the fact that Flores Leyva killed Doe was not disputed; only the type of homicide was at issue. The jury heard that on November 19, Flores Leyva slept over in the living room of the apartment where Doe, A.F., and Doe's mother, A.V., lived. Doe worked a nightshift and left her daughter in A.V.'s care. On the morning of November 20, she didn't come straight home. She went shopping for gifts to bring to family members in Peru. Her older daughter (from a previous relationship) lived there, and Doe was planning to take A.F. for a visit.
Flores Leyva was drinking that morning. He called Doe's cell phone over a dozen times and sent numerous texts. He kicked A.V. out of the apartment and would not let her take A.F. A.V. only went as far as the bus stop, where she waited for her daughter. She thought Flores Leyva was in a particularly violent mood and wanted to warn Doe, fearing for her daughter's safety if she went inside.
Doe's mother had a cell phone, but she could not make calls from it. She used it like a watch.
Flores Leyva's history of domestic violence was submitted to the jury, including one incident six months earlier where he told Doe he would kill her while brandishing a kitchen knife. On that occasion, he passed out on the bed and Doe called the police.
On November 20, Flores Leyva carried out his earlier threat. When Doe returned home in the afternoon toting a red suitcase for her Peru trip, she did not cross paths with A.V. Flores Leyva told A.F. her mother did not love her because she bought the suitcase for her sister. Doe then instructed A.F. to go into the bedroom. When A.F. came back out (either because she heard noises or because her mother called her) she saw Doe on the living room floor. Flores Leyva was advancing on Doe, pulling out a knife that was hidden in his sweater. Earlier that day, A.F. had watched Flores Leyva sharpen the same knife. The sharpening block was left out in the kitchen.
A.F. testified at trial. She was also interviewed by a child forensic interviewer the day after the murder, and her interview was submitted to the jury. Some details vary between the two accounts.
Flores Leyva or Doe told A.F. to go get help. She went to a neighbor's apartment—but no one answered. A.F. returned home, where she saw the aftermath of the stabbing: her mother bleeding on the floor with a cut on her stomach, and her father lying beside her, hugging Doe. Flores Leyva again told A.F. to get help. She eventually found D.T., a neighbor who called the police and prevented A.F. from going back inside. The first officer who arrived found the scene as A.F. described: Flores Leyva hugging Doe on the floor. He was belligerent and uncooperative. Both of them were taken to the hospital.
Doe had several stab wounds and cuts, including the six- to seven-inch deep fatal wound that punctured her liver. She died at the hospital. Flores Leyva had self-inflicted wounds, some of which required stitches, but none of which were life-threatening. He was sedated for treatment. Based on a blood draw from that night, his blood alcohol level was estimated to be .155-.220 percent at the time of the murder.
In addition to the percipient witnesses from November 20, the jury heard from Dr. Francisco Gomez, a neuropsychologist who reviewed the case and evaluated Flores Leyva five months later. He diagnosed Flores Leyva with chronic depression and alcohol abuse disorder. The trial court restricted some lines of questioning directed at Gomez to prevent the introduction of hearsay and improper opinions.
Jury deliberations spanned three days. The jurors requested readback of the testimony from Doe's autopsy doctor, Mark Fajardo, and from Gomez. They heard readback of Fajardo, but a transcript of the Gomez testimony was still being prepared. The jury reached a verdict without the latter. When the judge inquired about the Gomez testimony, the jury indicated it was not needed. They convicted Flores Leyva of first degree murder (Pen. Code, §§ 187, subd. (a), 189), and found the knife-use allegation to be true. (§ 12022, subd. (b)(1).) He was sentenced to 25 years to life in state prison for the murder of Doe plus one year for use of the knife in the commission of murder.
All further statutory references are to the Penal Code unless otherwise specified.
DISCUSSION
Flores Leyva contends the trial court prejudicially erred in sustaining various prosecutorial objections to the testimony of Dr. Gomez. We disagree. The court was attentive to preventing the jury from hearing an impermissible "diminished capacity" defense and inadmissible hearsay. Even if there was error, it was not prejudicial because it is not reasonably probable that the additional testimony sought by defense counsel would have changed the outcome.
Expert witnesses play a special role at trial in "assist[ing] the trier of fact" to understand subject matter that is "sufficiently beyond common experience." (Evid. Code, § 801, subd. (a).) Defendants have a due process right to consult with experts to construct their defense. (People v. San Nicolas (2004) 34 Cal.4th 614, 661 (San Nicolas).) "Nonetheless, expert psychiatric testimony may be limited by statute." (Id. at p. 662.) The statutory abolishment of the diminished capacity defense is a prime example of this.
1. Diminished capacity
From 1966 until 1981, the defense of diminished capacity was available in some form to criminal defendants in California. (See People v. Saille (1991) 54 Cal.3d 1103, 1110-1111 [describing the history of diminished capacity].) Under this theory, defendants could present evidence, usually through a medical expert, of a "mental infirmity short of insanity that tended to prove the defendant did not have the necessary specific mental state to commit" a crime with a specific intent. (Id. at pp. 1109-1110.) This defense was abolished by the Legislature in 1981, but diminished actuality survived. (Id. at p. 1112; Pen. Code, §§ 28, 29.) Under the reformed system, an expert can no longer testify that a defendant lacks the capacity to form a mental state. Nor can the expert usurp the role of the jury by opining that a defendant did not in fact form a specific mental state when the crime was committed. (Pen. Code, § 28, subd. (a); People v. Ochoa (1998) 19 Cal.4th 353, 431; People v. Cortes (2011) 192 Cal.App.4th 873, 902 (Cortes).)
But experts are still permitted to testify in generalities about the effect of a mental diseases on those who suffer from it. They can also give their opinion that a defendant has a mental disorder and can comment specifically on how the disorder affects the defendant (so long as the expert refrains from commenting on capacity or actual mental state at the time of the crime). (Cortes, supra, 192 Cal.App.4th at p. 908.) Allowing an expert to opine on these subjects preserves the defense's ability to offer expert testimony that aids the jury's determination of the defendant's mental state at the time of the crime. Caselaw after the enactment of sections 28 and 29 shows experts retain wide latitude to comment on the effect of a mental disorder on a defendant's cognitive functions.
The law "[does] not prevent the defendant from presenting expert testimony about any psychiatric or psychological diagnosis or mental condition he may have, or how that diagnosis or condition affected him at the time of the offense, as long as the expert does not cross the line and state an opinion that the defendant did or did not have the intent, or malice aforethought, or any other legal mental state required for conviction of the specific intent crime with which he is charged." (Cortes, supra, 192 Cal.App.4th at p. 908.)
See Cortes, supra, 192 Cal.App.4th 873, 911 [expert should have been allowed to testify he believed defendant entered a dissociative state at the time of the crime and that dissociation can affect memory and "can cause the person to act without conscious volition."]; see People v. Jackson (1984) 152 Cal.App.3d 961, 965 [superior court allowed expert testimony that defendant's " 'act was the product of a psychotic compulsion as a result of his chronic paranoid schizophrenia' " where expert defined compulsion as "' a nearly involuntary act' "]; see People v. Young (1987) 189 Cal.App.3d 891, 907 [court allowed expert testimony that mental illness affected defendant's reasoning at the time of the crime, and that defendant's "behavior controls were impaired" resulting in "compulsive behavior"]; see People v. McCowan (1986) 182 Cal.App.3d 1, 9 [expert testified that defendant's depression meant he had "great difficulty in thinking clearly and making judgments"].
Flores Leyva brings to our attention five instances where the court sustained objections during Gomez's testimony based on an improper opinion. In most of those cases, the question was rephrased (sometimes at a later point in time) and Gomez was allowed to give the substance of his opinion. In one instance the question had already been asked, so his response would have been redundant.
Based on our review of the record, these objections concerned testimony the People claimed went to establish diminished capacity.
On redirect, the court sustained objections to two attempts at the same question:
"Q: His diagnoses, can they affect someone's impulse control and decision-making?"
[Improper question objection sustained] [¶] . . . [¶]
"Q: If someone is severely depressed, they have major depression disorder. Can that affect their decision-making?"
[Improper question objection sustained]
There were two objections that actually precluded the jury from hearing substantive testimony from Gomez. His opinion on Flores Leyva's judgment and impulse control was stricken: "Under duress he's someone who doesn't process information. With something emotionally charged he's likely to become overwhelmed and just react to the moment." Later on, Gomez was prevented from responding to the following question: "Now, people who have a history of trauma, can they hypothetically overreact to stress or apprehension?" After an objection was sustained, defense counsel asked to be heard. The judge indicated that should happen later, outside the jury's presence. Counsel never returned to this line of questioning.
The court may have erred by restricting testimony on the general effect of a mental disorder and Flores Leyva's propensity to "just react" in emotionally charged situations. These topics are permissible so long as the expert makes no pronouncements about capacity. Indeed, counsel's question about stress and apprehension was explicitly modeled to conform with caselaw. (See People v. Nunn (1996), 50 Cal.App.4th 1357, 1365.) But the court was not consistent. Sometimes it sustained objections to these questions and other times it overruled them. The inconsistency resulted in defense counsel getting the substance of Gomez's answers on the record in most instances.
Gomez testified extensively on Flores Leyva's mental disorders and their effects. He diagnosed Flores Leyva with chronic depression and alcohol abuse disorder. He stated Flores Leyva had a low IQ and mental defect, noted his judgment and impulse control issues, and confirmed that depression can cause those issues. He opined on depression and decision-making, saying severe depression "affects the way [the depressed person] see[s] information, how they perceive information, and how they process information." He confirmed there were psychotic features to Flores Leyva's depression, and that "at times he would have what we call a loss of contact with reality." He brought all the threads together when he explained how depression affects decision making by impairing someone's impulse control and judgment, and said the combination of severe depression and alcohol abuse "further impairs [a person's] ability to make rational decisions." The substance of his testimony remained intact for the jury's consideration.
Because this is a state law issue, we review under People v. Watson (1956) 46 Cal.2d 818, 836 (Watson), disturbing the result only if we find a reasonable probability the error affected the outcome. Flores Leyva makes much of the limitations on Gomez's testimony, but in doing so he glosses over the strength of other evidence pertinent to premeditation and deliberation.
Premeditation and deliberation are supported by evidence tending to show planning activity, motive, and what appears to be a " 'preconceived design' " to "take the victim's life in a particular way." (People v. Anderson (1968) 70 Cal.2d 15, 26.) The motive need not be rational. (People v. Miranda (1987) 44 Cal.3d 57, 87.) Here, several facts support the inference that he planned to kill Doe and designed to do it by stabbing her with a knife: he sharpened the knife earlier in the day, he kicked Doe's mother out of the apartment, he had previously threatened to kill Doe with a kitchen knife, and he hid the knife while he advanced on her. As to motive, his excessive attempts to reach Doe throughout the day and his comments to A.F. about the suitcase indicate he was agitated throughout the day and upset by the Peru trip. Flores Leyva would have us focus on the length of jury deliberations, the requests for readback, and alternative explanations for his other conduct to call this a close case. But in evaluating the evidence as a whole, we find it was a strong case for premeditation.
Given that (1) the jury heard the substance of Gomez's opinion and (2) the evidence of premeditation was strong, we conclude it is not reasonably probable that any error affected the verdict. (See San Nicolas, supra, 34 Cal.4th at p. 663 ["In light of the fact that the substance of Dr. Vicary's testimony was presented to the jury, it is not reasonably probable that the error affected the outcome."].)
2. Hearsay
Flores Leyva also claims the court's exclusion of hearsay evidence during Gomez's testimony was prejudicial error. We are unconvinced. Even if a hearsay exception applied to some statements, there is no reasonable probability that the jury hearing those statements would have changed the outcome.
Flores Leyva points us to four episodes where the court sustained hearsay objections during Gomez's testimony. In all these cases, the doctor introduced (or was about to introduce) the defendant's out of court statements that Gomez relied on, in part, for his diagnoses.
The court excluded hearsay evidence under People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), which ended the fiction that hearsay admitted through an expert can be "cured by an instruction [that the statements] go only to the basis of his opinion and should not be considered for their truth." (Id. at p. 679) Sanchez held this kind of evidence cannot be introduced unless it is otherwise reliable—as demonstrated through independent verification or a hearsay exception. (Id. at pp. 679, 686.) An expert can still rely on hearsay to form her opinion but cannot relay the specific content of that hearsay to the jury. (Id. at pp. 685-686.)
Flores Leyva recognizes his statements were properly excluded in accordance with Sanchez, but asserts that some comments he made to police right after the murder and to Gomez in a later clinical interview involved his then-existing state of mind and should have been allowed under Evidence Code section 1250.
The People argue this issue was forfeited by defense counsel's failure to raise it at trial, but she made a passing reference to this hearsay exception. While it was not a robust argument, it is enough to preserve the issue.
We also review Sanchez error under a Watson standard. (People v. Calhoun (2019) 38 Cal.App.5th 275, 316; People v. Flint (2018) 22 Cal.App.5th 983, 1003; Watson, supra, 46 Cal.2d at p. 836.) Under this standard, we ask if it is reasonably probable that the outcome would have been different if Flores Leyva's statements regarding his then-existing state of mind had been allowed into evidence.
If this had occurred, Gomez would have repeated Flores Leyva's admissions that he was depressed and suicidal. But the jury already knew Gomez diagnosed him with severe depression, and there was significant evidence Flores Leyva was suicidal. He had self-inflicted wounds, including cuts to his wrists, and the doctor who treated him at the hospital noted the wounds were typical of a suicide attempt. Gomez testified he saw a pattern of suicide attempts in reports he read for the case. Even with all this evidence before it, the jury found Flores Leyva guilty of first degree murder. We cannot reasonably conclude that more evidence to the same effect (or even more certain evidence of these conditions) would make a different outcome reasonably probable.
3. Fines and Fees
In March, defense counsel informed the probation department that Flores Leyva was invoking his Fifth Amendment rights and would not speak with them. As a result, the probation officer who prepared his sentencing recommendation did not interview him. Most of the biographical information in the report is marked "unknown," including all financial fields.
At sentencing in May, defense counsel opposed the fines and fees recommended by probation, asserting Flores Leyva did not have an ability to pay. The People offered no further evidence on the matter. Without further comment, the court imposed all the recommended fines and fees: a presentence probation report fee of up to $1,095 (Pen. Code, § 1203.1b); a booking fee of $514.58 (Gov. Code, § 29550); presentence incarceration costs of $1,500 (Pen. Code, § 1203.1c); a restitution fine of $7,800 (Pen. Code, § 1202.4, subd. (b)); a court operations fee of $40 (Pen. Code, § 1465.8); and a criminal conviction assessment of $30 (Gov. Code, § 70373). He challenges all these fines and fees on appeal based on his inability to pay.
Flores Leyva was also ordered to pay direct victim restitution in the amount of $4,652 (§ 1202.4, subd. (f)), which he does not contest on appeal.
Flores Leyva asks that we take judicial notice of the California Department of Corrections inmate pay schedule in considering his ability to pay. We decline to take notice because his future earning potential in prison is not relevant to our resolution of this case. (See Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063 ["only relevant material may be noticed"].)
Flores Leyva brings to our attention a fatal defect with his presentence incarceration fee: its governing statute does not apply to him. The People concur, as do we. Penal Code section 1203.1c applies to defendants in local custody "as a term of probation or a conditional sentence" and permits the county or city to recoup "the reasonable cost of such incarceration." (§ 1203.1c, subd. (a).) Flores Leyva is sentenced to life imprisonment in a state facility. As a matter of law, this unauthorized fee must be removed. (People v. Turin (2009) 176 Cal.App.4th 1200, 1205.)
The remaining fines and fees will be addressed in turn. Section 1203.1b (the probation report fee) creates a procedural right to an ability to pay hearing before costs can be imposed on defendants. A probation officer can determine ability to pay so long as the defendant makes a "knowing and intelligent waiver" of his right to a hearing on this issue in court. In the absence of a waiver, the court must conduct an ability to pay hearing before this fee can attach. (§ 1203.1b, subd. (a), (b).) The court considered this statutory scheme in People v. Trujillo (2015) 60 Cal.4th 850 (Trujillo), a case where the defendant also refused to speak with the probation officer on Fifth Amendment grounds. At sentencing, she did not object to the probation report fee and then argued on appeal she could not pay it. (Id. at p. 854.) In weighing the procedural safeguards erected by the Legislature against the principles underlying forfeiture, the court determined her claim was forfeited only because she did not complain about the fee once she became aware of it. (Id. at pp. 855-856, 858-859.) It follows that Flores Leyva, who did complain, can still avail himself of the procedural protections Trujillo forfeited. It was improper for the court to impose the fee on Flores Leyva without first conducting a hearing. Moreover, under this statute the People are charged with demonstrating the defendant has the ability to pay. They failed to carry their burden when they did not supply the court with any additional financial information.
The statute extends further protections, noting projected ability to pay cannot extend past one year from the hearing date. (§ 1203.1b, subd. (e)(2).) This forecloses the People's argument that, if there was any error, it was harmless because the defendant can pay off the fines and fees over his years in prison.
Flores Leyva makes a similar argument about his booking fee, but in doing so he reveals confusion about which statute the fee is under, and indirectly raises the question of whether the fee was properly imposed. Government Code sections 29550, 29550.1, and 29550.2 permit government entities (such as counties or cities) to recover some of the cost of arresting and detaining criminal defendants. Which section applies depends on the arresting entity. (People v. McCullough (2013) 56 Cal.4th 589, 592 (McCullough).) And the statutes differ regarding ability to pay provisions. Government Code sections 29550 and 29550.2 have them, but 29550.1 does not.
We do not have enough information to determine if the fee was authorized. It appears Flores Leyva's booking fee is attached to Government Code section 29550, which permits a county to recover costs from a city (or another arresting entity) when city police arrest someone who is then booked or detained in county jail. (Gov. Code, § 29550, subd. (a)(1).) But as the People point out, Government Code 29550.1 applies when a city, as the arresting entity, seeks to recover funds. On the record before us, it is unclear which public entity would recover the funds. Flores Leyva takes the position that his fee was assessed under Government Code section 29550.2, and argues the People must prove his ability to pay (relying on McCullough, supra, 56 Cal.4th at p. 598). To add further to the confusion, this court is aware that at times the lower court treats these Government Code sections as a series, denoting the booking fee under Government Code section 29550 "et seq." That could have been the practical intent here. Since we will remand for resentencing, we end our discussion here and call attention to this issue for the lower court, which is better equipped to determine which section applies.
Flores Leyva was arrested by the Riverside Police Department.
We treat the remaining fines and fees in accordance with their respective statutes. Section 1202.4 allows for judicial discretion and consideration of a defendant's ability to pay in setting a restitution fine over the $300 minimum (as is the case here). (§ 1202.4, subds. (b)-(d).) In contrast, the court operations and criminal conviction fees are mandatory. (Gov. Code, § 70373, subd. (a)(1); Pen. Code, § 1465.8, subd. (a)(1).)
Flores Leyva contends the court abused its discretion by imposing the restitution fine. He urges us to conclude the lack of financial evidence before the court means it did not consider his ability to pay. But he also concedes that, under the statute, the trial court has discretion to impose greater than the minimum fine even where there is an inability to pay. Given the trial court's broad discretion in setting fines above the minimum amount, we see no reason to conclude ability to pay was not considered—especially when there was some (albeit minimal) financial information before the court. We will not assume the trial court misapplied the law without evidence to that effect. (People v. Hurtado (2019) 35 Cal.App.5th 871, 878.)
From trial, the court knew Flores Leyva previously worked in construction, sent money home to his mother, and rented a room (separate from the apartment where the crime occurred).
Moreover, Flores Leyva bears a burden he did not meet here. (See People v. Kopp (2019) 38 Cal.App.5th 47, 96, review granted Nov. 13, 2019, S257844 ["[I]t is Appellants' burden to make a record below as to their ability to pay these assessments."]; accord, People v. Castellano (2019) 33 Cal.App.5th 485, 490-491.) He cannot deny the probation department his financial information, fail to furnish the court with any supplemental information, then claim he cannot pay and assert the court abused its discretion by not considering his ability to pay. The sparse information before the court was a problem of his own making. Given this history, he has not done enough to preserve the issue on appeal. The same reasoning extends to the much smaller, albeit mandatory, court operation and criminal conviction fees.
Even after refusing to meet with probation, he could have supplied the trial court with supplemental information at sentencing, such as a financial affidavit. If this proved onerous, he could have requested more time to gather information or a subsequent opportunity to be heard on the issue.
Flores Leyva objects to these fees under People v. Dueñas (2019) 30 Cal.App.5th 1157, which held that criminal defendants have a due process right to an ability to pay hearing before fines and fees can be imposed. (Id. at p. 1172.) The decision has generated much debate, and courts of appeal diverge in their application of its principles. This court has declined to extend the reach of Dueñas where defendants could rationally have objected to a significant percentage of their fines and fees under the preexisting statutory scheme but did not. (See People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033 ["As a practical matter, if Gutierrez chose not to object to a $10,000 restitution fine based on an inability to pay, he surely would not complain on similar grounds regarding an additional $1,300 in fees."].) The same logic applies here to Flores Leyva's failure to support his claim that he could not pay. Since he declined to provide the court with any information showing he could not pay the $7,800 restitution fine, we find it hard to believe he would have done so for the comparatively small mandatory fees (totaling $70) if his sentencing had taken place after the Dueñas decision—and thus after defense attorneys were sensitized to objecting to mandatory fees based on ability to pay. --------
DISPOSITION
We affirm the defendant's conviction but remand for resentencing. As to his fines and fees, we direct the court to resentence the defendant consistent with this opinion, striking the unauthorized presentence incarceration fee and addressing the statutory requirements regarding ability to pay before reimposing the remaining fees. Upon resentencing, the clerk of the superior court is directed to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.
DATO, J. WE CONCUR: O'ROURKE, Acting P. J. IRION, J.
But earlier, on direct, Gomez was permitted to speak on the subject:
"Q: How does severe depression affect a person?
A: Well, it affects the way they see information, how they perceive information, and how they process information.
Q: Can it affect their decision making?
A: Absolutely."
After this exchange, the court sustained another objection that prevented Gomez from elaborating on how depression affects decision making, but he was able to give that opinion after the question was rephrased.