Opinion
G054008
01-11-2018
THE PEOPLE, Plaintiff and Respondent, v. KHANH HOAN TRAN, Defendant and Appellant.
Raymond Mark DiGuiseppe, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Hawley, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15CF0902) OPINION Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed. Raymond Mark DiGuiseppe, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Hawley, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Khanh Hoang Tran of attempting to kidnap a child under the age of 14. (Pen. Code, §§ 207, subd. (a), 208, subd. (b), 664, subd. (a).)
All further undesignated statutory references are to the Penal Code.
The court denied defendant's motion for a new trial (§ 1181, subd. (6) (section 1181(6)), and sentenced defendant to a 10-year prison term.
Defendant argues the court abused its discretion by applying the wrong standard of review to deny his new trial motion. We disagree and affirm the judgment.
FACTS AND PROCEDURAL HISTORY
1. Prosecution
On April 25, 2015, Jose M. and his extended family planned a large backyard party for one of Jose M.'s six children. Jose M.'s apartment complex had a fenced backyard. A driveway ran alongside the apartment building from the street to the backyard.
Jose M. set up tables and chairs under a tent, and he rented an inflatable bounce house for the children. Around noon, Jose M. went shopping. He returned about 40 minutes later. Jose M. parked his car in the driveway, and he walked up the driveway to the backyard. At the time, there were seven children in the backyard, but no adults.
When Jose M. got to the backyard, he saw defendant, an uninvited guest, holding the hand of his three-year-old child, A.M. Defendant was leading A.M. away from the bounce house. Frightened, Jose M. yelled something like, "What are you doing? That is my kid." Defendant replied, "I'm rescuing him." Jose M. said, "What are you rescuing him from? I'm his dad." Defendant responded, "They sent me to rescue him because you have kidnapped him."
Defendant released A.M.'s hand as he argued with Jose M. Jose M. told defendant to leave the area, but defendant refused. Defendant threatened Jose M. and tried to hit him. Defendant insisted someone needed to be rescued, but he did not know which person. One of Jose M.'s sons handed him a baseball bat, but when defendant rushed Jose M. with a closed fist, Jose M. dropped the bat and moved away. Defendant also entered an apartment, apparently looking for a girl that needed to be rescued, but the occupants of the apartment pushed him back outside.
Jose M. admitted he was angry, but he also said defendant's words made no sense to him, and defendant was waving his arms around and acting strangely. Jose M. testified, "[defendant] just wasn't right. Something was wrong with him."
Jose M.'s sister called the police. Santa Ana Police Officer David Fernandez responded. He found defendant sitting quietly on the grass in Jose M.'s front yard. However, defendant became agitated and argumentative when he saw Fernandez. Fernandez testified he did not believe defendant was under the influence of drugs or alcohol at the time of his arrest.
The prosecution played a recording from a surveillance camera mounted on the apartment building. The recording shows Jose M. walking with three-year-old A.M. from the driveway toward the back of the apartment building at around 12:45 p.m. Jose M. quickly walks out of view. However, A.M. stops and stares down the driveway for about one minute before he turns to follow his father. Four seconds later, defendant walks into view and follows A.M. off camera. The initial confrontation between defendant and Jose M. occurs off camera. Within minutes, however, defendant and Jose M. walk back into view. Words are exchanged and Jose M. appears to encourage defendant to leave. Defendant appeared very animated. He made several arm and hand gestures, and he may have been talking to himself.
2. Defense
Defendant relied on a mental impairment defense. He called an expert witness, three of his former probation officers, and his mother in support of this defense.
Dr. Rose Pitt, a board certified forensic psychiatrist, evaluated defendant for seven and a half hours over a two-day period in July 2016. Pitt reviewed numerous documents detailing defendant's family history, social life, education, employment, substance abuse, past and current symptoms, and contact with the criminal law.
According to Pitt, defendant had exhibited frequent auditory hallucinations and delusions of being controlled by someone else since 2009. Pitt diagnosed defendant with "psychosis not otherwise specified," most likely schizophrenia, based on defendant's background, multiple prior diagnoses, and his "somewhat paranoid" and "guarded" behavior during the evaluation.
Pitt detailed the typical symptoms of schizophrenia and schizophrenia-induced psychosis: (1) temporary loss of touch with reality; (2) hallucinations involving auditory senses; (3) as well as visual, smell, taste, and touch senses, which can cause the person to experience paranoid delusions or to believe he or she is being controlled by "an outside force"; (4) unyielding fixation upon delusional beliefs despite being confronted with contrary evidence; (5) disorganized thoughts, rapid or nonsensical speech; and (6) disorganized or bizarre behaviors or bodily movements.
Pitt said these symptoms can come and go, and may persist for weeks or months, with fluctuations in severity depending upon the individual's situation. Stress, substance abuse, and malnutrition tend to exacerbate symptoms. In remission, the person may be able to care for his or her own personal needs and maintain gainful employment. However, when present, symptoms of schizophrenia make it much more likely the individual will violate the law, not be able to hold down a job, and neglect their personal hygiene.
Defense counsel asked Pitt a hypothetical question based on a version of the facts. Pitt responded that the hypothetical person's actions were consistent with someone suffering from "schizophrenia," "control of paranoid delusions," and a floridly psychotic state." She said this person would not be dissuaded from his or her belief in the need to save the child from a kidnapper no matter how much contrary evidence was presented.
The hypothetical question asked Pitt to "[a]ssume a 30-year-old man who has a history of auditory and visual hallucinations and has a history of delusional thought processes, including controlled delusions and paranoid delusions. This 30-year-old man walks in the backyard of an apartment building that he has never been to before where he knows no one. He appears to be talking to himself and he is making bizarre hand gestures. [¶] He approaches a three-year-old child and takes that child's hand. When the father of that child confronts him, he responds that he is trying to save the child. When the father begins to try to convince this man that child does not need saving, that the child is with his family, this man begins to argue and says, quote, 'They told me someone had been kidnapped.' He then starts approaching other children in the area and cannot be dissuaded from his belief that someone needs to be saved. When the police arrive, he immediately approaches the police and sits down."
Defendant had received multiple prescriptions for psychotropic medications over the years, but he would not consistently take this medication due to the significant negative side effects. Furthermore, Pitt did not believe defendant was "malingering, which is a term used when someone falsifies, or exaggerates, their mental condition or symptoms. Pitt uses interview techniques that aid in the determination of whether someone is feigning symptoms, and she saw no evidence of malingering when she evaluated defendant.
Defendant's mother, Nga Nguyen, said defendant was the sixth of her seven children, and he started behaving "a bit strange" around his 18th birthday. When defendant lived with his mother, he had no friends, no job, and he walked around, smiling and talking to himself "all the time day and night." Defendant had been renting a room in someone else's house for the previous four years, but his family consistently provided financial support. Defendant also failed to complete an arts educational program paid for by one of his sisters. Nguyen wanted defendant to take medication when he lived with her, but he refused to be evaluated.
Orange County Probation Officers Kelly Brazao, Derrick Pettway, and Kathryn Cardullo testified about their impressions of Tran's mental health during his various periods of supervised probation. All three probation officers provided defendant referrals for mental health services based on their interactions with him. However, after defendant was evaluated by a mental health agency, the agency said defendant did not qualify for services.
DISCUSSION
1. New Trial Motion
Defendant argues the court's judgment and order denying his motion for a new trial should be reversed because the court failed to recognize and apply the proper standard of review to his new trial motion. He asserts the court abused its discretion and violated his constitutional right to due process.
a. Background
Prior to the sentencing hearing, defendant filed a motion for a new trial on grounds "the verdict or finding [was] contrary to law or evidence . . . ." (§ 1181(6).) Relying on Jose M.'s testimony about defendant's behavior, defense counsel asserted, "there was uncontroverted evidence [defendant] was suffering from schizophrenia at the time of the offense."
The prosecutor did not file a written response because she had not timely received defendant's motion. Nevertheless, after the court gave a tentative ruling denying defendant's new trial motion, the prosecutor waived further briefing.
In response to the court's tentative ruling, defense counsel restated facts in support of her argument and reminded the court of its duty to independently evaluate the evidence. The court responded, "The jury was armed with all that information."
"In other words, it's not like they didn't receive all the mental health history. I thought you did a very good job in presenting the defense, requesting the jury instruction dealing with mental disease or defect [sic] could maybe mitigate the intent. Your arguments were great.
"I just think that the jury realized that, yeah, he may have a mental illness, but the [district attorney] proved beyond a reasonable doubt that he had the intent to do the crime. I am sure the jury recognized that he had a mental illness or he was suffering in some capacity. But that doesn't mean that since that was presented then the only conclusion would be not guilty.
"I think that they considered your arguments. It was delved into right in voir dire. The theme was set at the beginning of the trial. The theme persisted throughout the trial, and then at the end when you argued about the lack of intent and mental illness, I believe the jury heard you, listened to you, but they have the power to reject it."
"They have the power to do that. They evaluated the mental illness, and I don't think that they reached a decision that the mental illness interfered with the intent. In addition, one of your witnesses was an expert. She was on the stand for over one hour. So this whole mental illness issue was flushed out completely and thoroughly, yet I believe at the end of the day the jurors felt that it didn't inhibit his ability to form the intent required on count 1. That is why we are in the positon we are in."
Defense counsel clarified, "I understand that. But I think your honor's role is different. I am not at this point arguing that there was some type of juror misconduct. What I am arguing is that your honor's role in [a section] 1181 motion as recognized by the cases that I cited in my brief is to independently evaluate the evidence. I think my interpretation of your honor's statement is that you are articulating a standard an appellate court would use in determining whether or not there was sufficient evidence to uphold the verdict." The court responded, "Which I believe there was."
Defense counsel continued, "Your honor is not bound by conflicts in evidence. You may consider additional features of credibility of witnesses and the weight that evidence should be accorded. [¶] The main case in support of this is People [v.] Robarge [1953] 41 Cal.2d 628 . . . . This is not an argument that the jury's verdict is insufficient to be upheld on appeal. This is that your honor with your own experience in weighing of the evidence and knowing the legal standard should exercise your own independent judgment essentially as though this was a court trial instead of a jury trial to determine if the People have proven their case beyond a reasonable doubt. [¶] That is why I referenced the uncontroverted evidence, in particular [Jose. M.'s] testimony. That was the People's main witness in the case. Even he agreed that [defendant] was clearly mentally ill at the time."
The court asked for the prosecutor's comments. The prosecutor questioned the applicability of section 1181(6), citing the absence of any "lesser offenses." But the prosecutor also stated, "[the] verdict was supported by the evidence by the law [sic]. The jurors all 12 decided after hearing extensive evidence of what [defense counsel] presented on behalf of [defendant] in regards to his mental illnesses that they set that aside and determined beyond a reasonable doubt that he had the required intent."
Section 1181(6) also permits the court to modify the verdict when "the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein . . . ." --------
The court responded, "I agree with that. I agree with that statement. The court recognizes that mental illness was in the defendant's history and that this wasn't something that was just alluded to in passing. There is no doubt he had a history. But at the same time there was a videotape of his conduct before and after the altercation. So that was physical evidence about his demeanor and his whereabouts coming and going from the location. [¶] This is a classic case of the jury rejecting the expert opinion. I can see how that could happened. It is nothing unusual. The court does agree with counsel that, yes, your client has a history of mental illness, but whether that mental illness completely obliterated any intent that day I'm not in agreement with your argument based on what I heard and what I saw at trial."
b. Standard of Review
"'In reviewing a motion for a new trial, the trial court must weigh the evidence independently. [Citation.] It is, however, guided by a presumption in favor of the correctness of the verdict and proceedings supporting it. [Citation.] The trial court "should [not] disregard the verdict . . . but instead . . . should consider the proper weight to be accorded to the evidence and then decide whether or not, in its opinion, there is sufficient credible evidence to support the verdict." [Citation.]'" (People v. Fuiava (2012) 53 Cal.4th 622, 729-730.)
We review the trial court's denial of defendant's new trial motions under the abuse of discretion standard. (People v. Knoller (2007) 41 Cal.4th 139, 156.) "'"The determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears."' [Citation.]" (People v. Davis (1995) 10 Cal.4th 463, 524 (Davis).) "Such an abuse of discretion arises if the trial court based its decision on impermissible factors [citation] or on an incorrect legal standard [citations]." (Knoller, at p. 156.) The court also abuses its discretion where it misconceives its duty or fails to independently consider the weight of the evidence. (People v. Robarge, supra, 41 Cal.2d at p. 634 [trial court erroneously deferred to jury's determination of credibility].)
c. Analysis
Relying on the court's repeated references to the verdict, and People v. Robarge, supra, 41 Cal.2d 628, defendant asserts the court's statements can only be viewed as an abdication of its duty to independently weigh the evidence.
In Robarge, the court reviewed the testimony of the only witness to positively identify the defendant and said some of the inconsistencies in the witness's testimony "'were awfully hard for the Court . . . to believe.'" (Robarge, supra, 41 Cal.2d at p. 634.) In addition, the court repeatedly said it was bound by the jury's decision. (Ibid.) Given the court's repeated statements about the witnesses's lack of credibility and the court's belief it was bound by the jury's credibility determination, the Supreme Court reversed. (Ibid.)
The Attorney General argues this case is more like Davis, supra, 10 Cal.4th at p. 463.) In Davis, the appellate court upheld the denial of a new trial motion where the record contained statements which affirmatively demonstrated the court exercised its independent judgment. (Davis, at pp. 523-524.) The Davis court relied on the record as a whole to "establish[] that, after considering the motion for a new trial, in which it expressly articulated the correct standard of review, the trial court independently determined the credibility of the witnesses and the probative value of the evidence." (Id. at p. 524.) While the defendant in Davis relied on isolated statements "in which the trial court refer[red] to the jury's verdicts," it was clear from the "record as a whole" that the court did not regard itself to be bound by the jury's findings. (Ibid.)
Here, the court made no express statement about witness credibility, or the standard of review. Nevertheless, the court's statements taken in context reveal an awareness of the presumption of correctness to be applied to the verdict, not a sublimation of its independent evaluation of the evidence and witness credibility. In fact, the court stated on the record it rejected defendant's mental impairment defense based on the "videotape of his conduct before and after the altercation," and "based on what I heard and what I saw at trial." (Italics added.) We conclude defendant's case is analogous to Davis, not Robarge.
Defendant also argues the prosecutor misled the court with her discussion of section 1181(6), but we see no evidence of this. The court did not agree with the prosecutor's statement section 1181(6) was inapplicable. The court agreed with the prosecutor's estimation of the sufficiency of the evidence to support the verdict.
In sum, defendant fails to show the "'"manifest and unmistakable abuse of discretion"'" required for reversal. (Davis, supra, 10 Cal.4th at p. 524.) To the contrary, the record as a whole reflects the court denied defendant's new trial motion with an understanding of its duty to independently consider the credibility of the witnesses and the weight of the evidence. There was no abuse of discretion, and no violation of defendant's constitutional rights.
DISPOSITION
The judgment is affirmed.
THOMPSON, J. WE CONCUR: ARONSON, ACTING P. J. IKOLA, J.