P. v. Hernandez

Filed 9/27/06 P. v. Hernandez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Frank F. Fasel, Judge. Reversed.

Doris M. Frizzell, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Meagan J. Beale and Lise Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

On July 20, 2000, the Orange County District Attorney filed an information charging defendant Isidro Calderon Hernandez with murder (Pen. Code, § 187; all further statutory references are to the Penal Code unless otherwise noted), kidnapping (§ 207, subd. (a)), felony hit-and-run driving causing injury or death (Veh. Code, § 20001), and presenting a false insurance claim (§ 550, subd. (a)(1)).

In June 2001, the court initiated proceedings under section 1368 to evaluate defendant’s competency to stand trial. In May 2002, the court found defendant competent to stand trial, and he entered pleas of not guilty and not guilty by reason of insanity. A jury found him guilty of first degree murder, kidnapping, felony hit-and-run driving causing death, and insurance fraud, and found defendant sane at the time he committed the crimes.

The trial court denied defendant’s motion for new trial and sentenced him to an indeterminate term of 25 years to life with a concurrent five-year term for insurance fraud. The court stayed imposed upper term sentences on the remaining counts, but stayed imposition of sentence under section 654.

On appeal, defendant contends he received ineffective assistance of counsel because counsel failed to object to the admission at trial of his statements made to mental health professionals during court-ordered competency evaluations. He also asserts the trial court committed prejudicial error by failing to sua sponte instruct the jury on the special mental state required for kidnapping unconscious people, and by failing to sua sponte give instructions on the mistake of fact defense. He further argues the trial court improperly considered aggravating factors in determining his sentence in violation of his state and federal Constitutional rights to a jury trial and due process and contends he is entitled to two additional days of conduct credits. We conclude none of these contentions has merit.

In a separate published opinion, this court granted defendant’s petition for writ of habeas corpus on the grounds he received ineffective assistance of counsel during the sanity trial. (In re Hernandez (Sept. 27, 2006, G035909) ___ Cal.App.4th ___.) A reversal of the judgment of the sanity trial and an order for a new sanity trial does not inevitably disturb the verdict of the guilt trial. A new trial on a defendant’s sanity may proceed without a new trial on the issue of his guilt. (People v. Marshall (1930) 209 Cal. 540, 547; People v. McGowan (1986) 182 Cal.App.3d 1, 20.) Although the judgment cannot be pronounced until the resolution of the sanity proceedings, the verdict in the guilt trial remains in full force and effect pending the outcome of the new sanity trial. (People v. Eggers (1947) 30 Cal.2d 676, 691.)

I

FACTS

On August 22, 1999, at approximately 11:30 p.m., three friends of 18-year-old cyclist John Labord watched in horror as defendant, the driver of a white Honda Civic, hit Labord while he was riding his bicycle on Orangewood Avenue in Anahiem. Labord’s friends thought they heard the car accelerate just before the impact and watched as it swerved, sped away from the scene, and drove onto the 57 freeway. Labord’s friends found his bicycle broken in two approximately 200 feet from the point of impact. However, they did not find their friend.

Early the following morning, a motorist discovered Labord’s body in a turnout off the 241 tollway, approximately 13 miles from the point of impact. According to the autopsy, Labord died from exsanguination caused by a large wound on his right forearm. His body had sustained abrasions and a fracture to the right leg, but there were no major injuries to his head or internal organs. The coroner estimated Labord lived at least 20 minutes after the impact with defendant’s car, and he testified immediate medical attention would have saved his life.

At about 7:00 a.m., one of defendant’s neighbors noticed defendant’s white Honda Civic parked in its parking space with a blanket thrown over the hood. Around 9:00 a.m., defendant telephoned Adela Diaz, his car insurance agent to report that his car had been vandalized overnight. He said the hood had been dented and he needed to get it repaired. Defendant told Diaz, “he wanted to get things done as fast as possible and he wanted to settle the claim right away . . . .”

Throughout that day, the neighbor who had first noticed the blanket on defendant’s Honda watched him repeatedly return to his car, move the blanket, and rub the exterior. That evening, she watched a television news report about a hit-and-run accident in an area she recognized. The report included a description of the suspect car and mentioned that the car would have front-end damage due to circumstances of the collision. The neighbor became suspicious because the description of the suspect car matched defendant’s car and she decided to talk to defendant about it.

Defendant was outside his apartment so the neighbor went outside and asked defendant, “Que pasa con tu caro?” Defendant looked at her, but did not respond. She said, “Did you get into an accident?” This time, defendant replied, “Si.” The neighbor asked defendant if he got hit at the Block in Orange, the general area where Labord was hit, and defendant said, “Yes.” At this point, another man told defendant to be quiet and come inside his apartment. The neighbor returned to her apartment and called the police.

The responding police officer talked to the neighbor, then looked at defendant’s car, and saw that it had front-end damage, a caved-in windshield, a damaged hood, and a broken headlamp. He also noticed the car smelled like bleach. At this point, the officer called for assistance. The resulting investigation yielded considerable inculpatory evidence. Labord’s blood was found on defendant’s shoes, one sock, and other items of his clothing. His blood was also detected on the car’s broken rearview mirror, hood and parts of the interior. Officers found a bottle of bleach and a bucket in defendant’s apartment. Tire tracks found near Labord’s body were consistent with the tread wear pattern of the tires on defendant’s car, and a hubcap found at the point of impact matched the hubcaps on defendant’s car.

At trial, the prosecution introduced evidence of a second hit-and-run incident involving defendant and another cyclist that occurred in May 1999. An eyewitness testified the driver of a small white car veered into the bike lane and hit a cyclist from behind without warning. A police officer testified defendant’s sister told him that defendant confessed to her that he hit a cyclist in May 1999. However, she denied making this statement at trial and said her brother never confessed to her.

Defense evidence

Defendant did not testify at trial. Modesto Hernandez, defendant’s father, testified about his son’s behavior and mental health history. Hernandez first noticed behavioral changes in his son in 1994. According to Hernandez, his son had been hospitalized and placed on medication at the time. The medication seemed to help him, but defendant did not like taking his medication and moved out of the family home about one month before the collision so he could stop taking medication. Hernandez testified that he did have some concern about defendant driving when he was not taking his medication, but he also testified defendant had been driving normally earlier on the day of the Labord hit-and-run.

Defendant’s treating psychiatrist, Dr. Jairo Gomez, testified defendant suffered from “a psychosis . . . most likely paranoid schizophrenia.” Gomez prescribed various antipsychotic medications during the time he treated defendant, but defendant complained of various side effects, such as drowsiness, reduced response times, restlessness, involuntary muscle spasm, and lack of coordination. Gomez testified defendant’s condition improved from his first treatment of defendant in 1996 until April 1997. After a brief period of instability in 1997, defendant again attained relative stability in early 1998. However, in September 1998, defendant complained about medication side-effects and did not appear for next scheduled appointment. Gomez testified defendant would have run out of his medications sometime in November 1998. In February 1999, defendant was hospitalized for bizarre and threatening behavior.

Gomez testified defendant was probably in an acute phase of his psychosis in February 1999. He conceded it is possible for a person in an acute phase of psychosis to plan and premeditate his actions, but not necessarily be able to form specific intent. Gomez testified defendant’s condition was genuine, and not malingering.

Rebuttal evidence

Dr. Martha Rogers, who was appointed by the court to evaluate defendant’s mental status at the time of the incident, reviewed defendant’s medical and other relevant records dating back to 1996. She also reviewed more recent records, including the competency evaluations and records from defendant’s nearly year-long stay at Patton State Hospital. Based on her review, Rogers testified that at his most deeply disturbed, defendant became angry, hostile, and combative. At times, he would not recognize or acknowledge family members and did not know where he was. Defendant had been known to aimlessly wander about without any identification for several days at a time. He often refused to contact his family. In 1995, Anaheim police officers found him naked and hiding in a dumpster. However, Rogers testified, defendant exhibited none of these behaviors in the days leading up to the day of the Labord hit-and-run. Further, Rogers opined even deeply decompensated persons are able to engage in “goal-directed conduct.”

Sanity phase

The jury heard testimony from four expert witnesses during the sanity phase. Dr. Enani D’Angelo testified on defendant’s behalf. The prosecution called Dr. Kaushal Sharma, Dr. Dennis Wallstrom, and Rogers. The court initially appointed Sharma and D’Angelo to evaluate defendant’s competency to stand trial. Wallstrom interviewed and tested defendant during his involuntary commitment at Patton State Hospital. Rogers reviewed the competency evaluations and relied on them, at least in part, to form her opinion of defendant’s mental state in the guilt trial.

D’Angelo testified defendant had a significant mental illness and “most likely did meet the legal standards for insanity” at the time he hit Labord. D’Angelo based his opinion on defendant’s extensive history with the Orange County Mental Health Agency, his possible exposure to toxic chemicals during previous employment, and a fall of approximately 16 to 18 feet with head trauma and possible loss of consciousness. According to D’Angelo, defendant’s family provided a home for him as long as he took his medication. However, defendant left home approximately one month before he hit Labord so he could stop taking medication. Further, even when defendant lived in his own apartment he was not fully independent. His family continued to provide meals, laundry, and maid services.

D’Angelo opined defendant’s illness “wasn’t there just to buttress some sort of defense.” Rather, it was an illness of long-standing. D’Angelo acknowledged defendant struggled with taking his medication, but he stated this is a common problem with psychiatric patients. According to D’Angelo, defendant lacks insight into his mental illness and prefers to focus on his physical ailments. Defendant’s actions were consistent over time and with other psychiatric patients D’Angelo has treated. In D’Angelo’s opinion, the fact defendant did not take Labord to a hospital “implie[d] very, very impaired judgment[,] somebody who is very confused and doesn’t know what he was doing as opposed to, as I said, somebody calculating how to cover this up.”

Wallstrom, who needed to use a Spanish interpreter to speak to defendant, testified defendant “had a great deal of difficulty giving me the most basic history. There were very long pauses as he gave answers to the date of his own birth, where he was born, his parents’ names, the current date and year. Questions such as what is two plus two, what is nine minus three, he was giving long answers to. And, his claims of symptoms were very, very unusual. And he was claiming a variety of symptoms that -- that just made it seem curious and doubtful.”

Wallstrom subjected defendant to a number of tests, including the Test of Memory Malingering or TOMM test and the Validity Indicators Profile test. Wallstrom believed defendant intentionally scored poorly. On the Validity Indicators Profile test, of the eight primary scales that would indicate rare, unusual, or absurd symptoms and probable malingering, defendant scored in the definite range in five scales and in the probable range in the remaining three scales. Wallstrom testified, “I believe that he met the criteria for malingering because, first, he could not have obtained the scores on the tests that I gave him without doing so intentionally. Those had to be intentionally produced wrong answers.” However, Wallstrom testified he could not adequately assess the authenticity of defendant’s mental illness due to defendant’s ability to implement his “malingering strategy.”

Sharma, who also needed the assistance of a Spanish interpreter to communicate with defendant, conceded defendant “has a mental problem.” Nevertheless, he testified, “I at that time believed that he was faking or malingering mental incompetency and mental illness.” Sharma reviewed many reports before evaluating defendant’s sanity, including the Patton State Hospital reports. Sharma stated, “I believed at the time of the crime . . . [defendant] was not suffering from a mental illness of the kind which will cause him not to be able to know the nature and quality of his act or not to be able to distinguish right from wrong. More simply speaking, I felt based on the information I had, he knew what he was doing and he knew what he was doing would be considered wrong by himself, by the law, and was morally wrong.” He based his opinion on defendant’s frequent response to questions with “I don’t know,” “I don’t remember,” or “I was insane.” Sharma viewed the facts of the crime as supporting the conclusion defendant understood the nature of his actions and had the ability to engage in organized thought.

Rogers, who also relied on the assistance of a Spanish interpreter, believed defendant used language to avoid cooperating with people: “If he was spoken to in English, he would speak in Spanish. If he was spoken to in Spanish, he would respond in English . . . .” Defendant did not cooperate with Rogers during an attempted in-person interview with an interpreter and refused to answer questions about the crime. Afterward, Rogers administered a test designed to reveal malingering. She testified defendant responded in a way consistent with malingering. Although Rogers testified it was her opinion defendant understood “what he was doing was illegal and wrong,” she conceded it was “very rare not to have a statement [from defendant], not to have given anybody a statement. So this is the case where we have been forced to rely on what we have.”

Rogers summarized defendant’s symptomology as follows: “When he was in workers’ comp cases, he tended to complain very heavily about so many symptoms that one doctor at least said that it didn’t make any sense. He also complained of mental symptoms. But, when he started at Orange County Mental Health, then he was prone to deny the mental symptoms and to say that there was nothing wrong with him. But, then as time went on, and particularly when this case came into being, his strategies of presentation seemed to change. At the time he was arrested he told doctors at the jail it was mistaken identity. And then, he told people he wasn’t there. And at various times he said somebody had borrowed his car keys, or that his car was vandalized, and he reportedly made a false report about being vandalized. And he was tending to say at the beginning ‘I am not mentally ill,’ and then he switched to ‘I am mentally ill, I am incompetent, I am insane.’ Those are very unusual words for a patient to use. Then, he switched to ‘I don’t remember. I don’t remember anything.’ And then, in my exam he said, ‘I did nothing wrong, but I am insane and incompetent.’”

II

DISCUSSION

Ineffective assistance of counsel

Defendant argues the court violated his Fifth Amendment privilege against self-incrimination by permitting Wallstrom, Sharma, and Rogers to testify at trial. Sharma conducted defendant’s competency evaluation and testified during the sanity trial. Wallstrom interviewed defendant and conducted tests on him during his involuntarily commitment at Patton State Hospital. He also testified at the sanity trial. Rogers was appointed to examine defendant’s mental state as it related to his plea of not guilty by reason of insanity. However, she read the competency evaluations, records from Patton State Hospital, and many other records in forming her expert opinion, and she testified at both guilt and sanity trials.

“[I]n California . . . information obtained from an accused at a mental examination conducted in the course of a competency proceeding is by rule confined to the issue of competency. In this manner, the judicially declared immunity preserves the neutrality of the section 1368 hearing. The judicially declared rule supplants the Fifth Amendment, because the scope of that rule is coextensive with the scope of the Fifth Amendment privilege.” (Baqleh v. Superior Court (2002) Cal.App.4th 478, 501.) Thus, in California, it is well settled that “[t]here is a rule of immunity for all statements and fruits of a mental competency examination which prevents their use at the guilt trial. [Citations.]” (People v. Arcega (1982) 32 Cal.3d 504, 518 (Arcega); accord Centeno v. Superior Court (2004) 117 Cal.App.4th 30, 42.) Further, the Arcega rule applies to the sanity trial. (People v. Weaver (2001) 26 Cal.4th 876, 961.)

The Attorney General concedes an objection on evidentiary and constitutional grounds could have been made, but asserts defense counsel had a tactical reason for his failure to make the objection at trial, or in the alternative, defendant suffered no prejudice as a result of counsel’s failure to object. Although the appellate record fails to provide any insight as to why defendant’s trial attorney did not object to the testimony at issue, a declaration submitted with defendant’s petition for writ of habeas corpus includes trial counsel’s admission that he had no tactical reason for his failure to object. Therefore, “[b]ecause a defense objection to the [testimony] . . . should have been sustained [citation], and because there is no satisfactory explanation for counsel’s failure to object, [defendant] was denied the assistance of a reasonably competent attorney. [Citations.]” (People v. Stratton (1988) 205 Cal.App.3d 87, 94.)

With respect to the sanity trial, we have concluded defendant established prejudice as a result of counsel’s error and thereby satisfied both requirements of the Strickland v. Washington (1984) 466 U.S. 668 test. (In re Hernandez (Sept. 27, 2006, G035909) ___ Cal.App.4th ___.) However, at the guilt trial, the prosecution did not call Wallstrom or Sharma and Rogers testified only as a rebuttal witness. Although Rogers based her testimony in part on inadmissible evidence, the whole of her testimony was not unduly prejudicial to defendant. Her brief rebuttal testimony actually supported defendant’s claim of past mental illness. Further, defendant’s treating physician testified at length regarding defendant’s history of mental illness, which undoubtedly counteracted the effect of Rogers’s testimony. Based on the entire record, defendant has failed to establish a reasonable probability of a more favorable outcome in the absence of counsel’s error during the guilt trial. (Strickland v. Washington, supra, 466 U.S. at

p. 689.)

Instructional error-kidnapping

“Trial courts only have a sua sponte duty to instruct on ‘the general principles of law relevant to and governing the case.’ [Citation.] ‘That obligation includes instructions on all of the elements of a charged offense’ [citation], and on recognized ‘defenses . . . and on the relationship of these defenses to the elements of the charged offense.’ [Citations.]” (People v. Rubalcava (2000) 23 Cal.4th 322, 333-334.)

The trial court instructed the jury with CALJIC No. 9.50, the standard instruction on simple kidnapping. The court instructed the jury, in pertinent part, “‘[i]n order to prove this crime, each of the following elements must be proved: Number one, the person was unlawfully moved by the use of physical force; Number two, the movement of the other person was without his consent; and, Number three, the movement of the other person in distance was substantial in character.” As stated in People v. Jones (2003) 108 Cal.App.4th 455, “Generally, to prove the crime of kidnapping, the prosecution must prove three elements: (1) a person was unlawfully moved by the use of physical force or fear; (2) the movement was without the person’s consent; and (3) the movement of the person was for a substantial distance. [Citation.]” (Id. at p. 462.)

Relying on People v. Oliver (1961) 55 Cal.2d 761 and In re Michele D. (2003) 29 Cal.4th 600, defendant contends the trial court committed reversible error by failing to sua sponte instruct the jury to determine whether defendant formed the specific intent to kidnap an unconscious person. He refers us to CALJIC No. 9.57, which states, “The amount of force required to kidnap an unresisting infant or child is the amount of force required to take and carry the child away a substantial distance for an illegal purpose or with an illegal intent. The People have the burden to prove that an infant or child incapable of consenting was taken or moved by force as defined above. If you have a reasonable doubt as to whether the taking or movement was by force, you must find in favor of the defendant on that issue.”

Defendant’s argument is unpersuasive. Labord was not an unresisting two year old who went willingly with a child molester to a nice patch of grass, as in People v. Oliver, supra, 55 Cal.2d at p. 764, or an infant snatched from its stroller by a family friend, as in In re Michele D., supra, 29 Cal.4th at p. 606. At 18, Labord had the capacity to give or withhold his consent to be moved, defendant simply did not attempt obtain it. At the moment of impact, defendant moved Labord’s person against his will, arguably a substantial distance even at that point. Even assuming Labord was unconscious immediately after the impact or during the ride to his final destination, facts not conclusively proven at trial, his unconsciousness and inability to resist were the result of defendant’s incomprehensible act of running him down. Defendant’s contention that this set of facts should somehow trigger the court’s sua sponte duty to give CALJIC No. 9.57 or some modified version of that instruction is a specious at best. We will not interpret or apply the kidnapping statute in such a way that would lead to such an “injustice . . . or an absurd consequence.” (People v. Oliver, supra, 55 Cal.2d at p. 767; In re Michele D., supra, 29 Cal.4th at p. 607.)

Instructional error - mistake of fact defense

Defendant also argues the trial court had a sua sponte duty to instruct the jury on the mistake of fact defense. “A trial court’s duty to instruct, sua sponte, on particular defenses arises ‘”only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.”’ [Citations.]” (People v. Maury (2003) 30 Cal.4th 342, 424.)

Defendant argues Labord could have been dead when he landed on the windshield and kidnapping requires the asportation of a live victim. But defendant did not rely on this defense at trial. He argued a lack of capacity to form the required mental state at the guilt phase and entered a not guilty by reason of insanity plea. Further, the facts adduced at the guilt phase do not support giving the mistake of fact instruction. The coroner estimated Labord lived at least 20 minutes after the impact with defendant’s car, and he testified immediate medical attention would have saved his life. Consequently, defendant was not entitled to instructions on the mistake of fact defense with respect to the kidnapping charge.

Sentencing

The court imposed an indeterminate term for murder and the upper term for kidnapping, hit-and-run driving causing death, and insurance fraud. The court stayed the terms imposed for kidnapping and hit-and-run driving causing death and ordered the sentence for insurance fraud to run concurrent with the indeterminate term. The court stated the victim’s vulnerability as the aggravating factor.

Relying on Blakely v. Washington (2004) 542 U.S. __ [124 S.Ct. 2531] (Blakely) and Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), defendant argues the trial court violated his state and federal Constitutional rights to a jury trial and due process by imposing the upper term on kidnapping, hit-and-run causing death, and insurance fraud on the basis of a fact not reflected in the jury verdict or admitted by the defendant.

The California Supreme Court rejected defendant’s argument in People v. Black (2005) 35 Cal.4th 1238 (Black). In Black, our Supreme Court addressed the issue of “whether a defendant is constitutionally entitled to a jury trial on the aggravating factors that justify an upper term sentence or a consecutive sentence.” (Id. at p. 1244.) The court concluded that “the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant’s Sixth Amendment right to jury trial.” (Ibid.) We are bound by this holding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Credit calculation

Defendant argues the trial court miscalculated his presentence credits by awarding him 1738 days credit because he was actually entitled to 1740 days credit. The Attorney General does not address the issue. Generally, the failure to address an argument is deemed a concession. However, because we remanded this case for a new sanity trial, it is appropriate to have the trial court recalculate defendant’s custody credits after the sanity trial.

III

DISPOSITION

The judgment is reversed. The matter is remanded solely for a new sanity trial. The verdicts from the guilt trial remain in full force and effect pending the outcome of the sanity trial. At the conclusion of the sanity trial, the court shall recalculate petitioner’s custody credits, if appropriate. Upon finality of this opinion, the clerk of this court shall submit a copy of this opinion to the State Bar of California. (Bus. & Prof. Code, § 6086.7, subd. (a)(2); In re Jones (1996) 13 Cal.4th 552, 589, fn.2.)

MOORE, J.

WE CONCUR:

O’LEARY, ACTING P. J.

IKOLA, J.

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