Filed 10/2/17 P. v. Collins CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Shasta)

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A trial court has discretion when ruling on a motion for a mistrial, but it must properly exercise that discretion. In this case, after less than one full day of testimony, defense counsel moved for a mistrial based on her admitted failure to investigate a potentially viable mental state defense. Counsel’s direct supervisor and, more importantly, the trial court, agreed that recordings of 911 calls--provided to counsel in discovery, well before trial--should have alerted her to this issue. We have listened to these recordings and agree that any reasonable criminal defense attorney would immediately have understood this evidence raised serious questions about defendant’s mental state, requiring investigation. But the trial court characterized the issue it had to decide as whether or not it had a duty to “bail out” defense counsel, instead of protecting defendant’s right to a fair trial, including the effective assistance of counsel. In these rare circumstances, we find the trial court abused its discretion, and reverse with directions to the trial court to grant the mistrial motion.

BACKGROUND

A jury found defendant Shayne Austin Collins guilty of residential burglary with an occupant present, making a criminal threat, and two misdemeanor counts of resisting peace officers; he then admitted he had served a prior prison term. (Pen. Code, §§ 148, 422, 459, 667.5, subd. (b).) The trial court denied a new trial motion, and sentenced defendant to prison for five years eight months, whereupon defendant timely appealed.

A. Trial Evidence

The trial evidence, viewed in the light favorable to the verdicts (see People v. Abilez (2007) 41 Cal.4th 472, 504) was as follows.

Lisa Estess testified her son (defendant) came uninvited to her Redding trailer on August 20, 2015, though she had told him he was not welcome. She called 911 three times because she was afraid. Defendant told her that he ran “to [her] house to make sure [she] was okay, because he thought he killed Satan.” She told him she had a restraining order. He asked for water and she gave him some through a window. He demanded entry and forced his head and shoulders through the window. He said he thought she was Satan and he might have to kill her. When she was handing him cigarettes, he reached through the window and grabbed at her neck. She testified that he had tried to grab her before, and choked her before, most recently the prior May or June. She believed his threat because in the past he had hurt her and she was afraid he would hurt her again. He had never called her Satan before, but his rage was consistent with past assaults, in which he “hurt me, pulled a knife on me, knocked me down, things like that.” But on this occasion, he “seemed even more irrational . . . because he said he got rid of Satan” and that she was now Satan; he also called her a demon and devil. Estess had obtained a restraining order that July, which defendant violated within the first day or two of being served with a temporary restraining order. One incident leading her to obtain the order occurred that June when he “was ranting about he wanted to kill his wife’s boyfriend and his wife and possibly die, suicide by cop.”

The three 911 recordings--a total of over 20 minutes of interaction between defendant and Estess--were played for the jury. In the recordings, defendant rambles about Satan and death, and alternates between calling Estess “Robert” and Satan, or a demon and a devil. Estess had no idea who “Robert” was.[1]

When Redding police officer Joseph Rossi arrived, defendant’s arms were inside the window. Defendant did not obey commands to show his hands even after Rossi struck him with a baton. Officer Ryan O’Hern corroborated Rossi’s testimony. Neither officer formally evaluated defendant for drug or alcohol intoxication, but O’Hern testified that when he took defendant to jail, defendant displayed “some similar actions of one that would be under the influence of a controlled substance.”

The jury was excused at 3:15 p.m. that first (and what proved to be the only) day of trial evidence, October 28, 2015.

B. Mid-trial Motions

At the beginning of the next day, October 29, 2015, outside the presence of the jury and defendant, defense counsel stated she had spoken with defendant the night before to find out whether or not he wanted to testify, and learned information that she thought merited a mistrial or at least a continuance; she also stated that she might declare a doubt about defendant’s competency. (See Pen. Code, § 1368.)

An in camera hearing was held, with defendant and the prosecutor excluded, at which time defense counsel told the trial court that the prior evening she had visited defendant in jail and he mentioned an “exorcism.” She had previously thought he was rational, although she disagreed with his decision to reject a plea offer. She had reviewed the 911 recordings which suggested defendant’s bizarre ideation and had thought defendant might have a “meth issue,” but she now believed he was delusional. She wanted to explore evidence he lacked the mental capacity to form the specific intent to commit burglary or criminal threats. She had contacted her supervisor, and asked the trial court for a continuance to have defendant evaluated, or in the alternative for a mistrial. She estimated a two-week continuance would be needed.

When the prosecutor was allowed to be present, the trial court found no basis for “a suspension of proceedings under [Penal Code section] 1368” and tentatively acceded to defense counsel’s request, indicating either a mistrial or two-week continuance would be appropriate. The prosecutor noted that he had already rested and would not stipulate to a mistrial, in part due to a misplaced double jeopardy concern, but he also discussed scheduling a continuance.[2] The prosecutor then argued that although he had not been privy to what had been said at the in camera hearing, whatever the issues were, he thought “defendant is the source of the issues that arose last night” and “created this issue by withholding whatever information it was. I don’t know the nature of the evidence,” but “I don’t think he should be rewarded for bringing something up at the end of a trial to postpone it.”

The trial court then held a second in camera hearing with defense counsel and her supervisor, again in defendant’s absence. The trial court found the 911 recordings put counsel on notice of defendant’s possible mental problems. The court characterized the recordings as showing “from the very outset, the very beginning of this case, that the defendant potentially could have a mental defense of some sort; and it’s clear.” Citing defendant’s “very bizarre behavior” on the calls, the court opined that “this is a defendant who has, perhaps, a mental issue . . . at the time of the incident.” Opining that “it does not appear that this is like newly discovered evidence that would warrant a continuance,” the court then indicated it would deny both motions. Defense counsel’s supervisor, the assistant public defender for Shasta County, agreed that defense counsel had been ineffective, as she should have conducted an investigation that included a “psych review” after receiving the 911 recordings.

The trial court found: “It is a close case; I’m the first to admit that. I guess the question is what is the Court’s duty to bail out defense counsel in the event that there may be an incompetency of counsel.” The trial court then pointed out the instructions and closing argument might well have been given the day before, and “this issue of the defendant’s mental state was or should have been evident very early on, in light of the recording that was made of the 911 call. I mean, the defendant made some very bizarre comments, and so the issue is: Is there good cause to continue? I’m finding there’s not.”

Thus, the trial court agreed defense counsel had been ineffective because she had not understood the importance of the discovery she had received--recordings evidencing a delusional client who may well have been incapable of forming the requisite intent--and acted upon it. But the trial court still denied the alternative motions for a continuance or mistrial, as we have described.

Defendant elected not to testify and the defense presented no evidence.

C. Closing Arguments and Verdicts

The prosecutor argued defendant made many threats to kill or hurt his mother, and in part because of his prior attacks on her, she was reasonably placed in sustained fear of him. There was no evidence defendant did not understand what he was saying, was under the influence, or that he really thought his mother was the devil or “Robert.” Burglary was shown by his partial entry into the window, for the purpose of feloniously assaulting his mother. The two misdemeanor resisting counts were established by the testimony of the peace officers.

Defense counsel argued defendant “was not in his right frame of mind that morning.” By calling his mother “Robert” and “Satan,” he demonstrated a lack of awareness of what he was doing. She conceded there were “explicit threats on the [911] calls,” but argued defendant did not really intend to harm his mother, because he was delusional. She conceded defendant had committed prior violence against his mother, but emphasized the victim’s testimony that defendant acted differently on this occasion, and invited the jury to infer this bolstered the view he did not know what he was doing. Because he did not know who his own mother was, he did not understand who the officers were, or understand their commands, and therefore was not guilty of resisting them, either.

In rebuttal, the prosecutor argued defendant was not delusional, but knew he was at his mother’s house and that she had called the police, and understood what he was doing when he tried to force his way into her window. He conceded “the defendant was different” and “it was bizarre.” But the prosecutor emphasized that “there’s no evidence he didn’t know what he was doing.”

During deliberations, the jury asked to hear the 911 recordings, and for a readback of the victim’s testimony, and then found defendant guilty of all counts in about four hours, including taking about an hour for lunch.

D. New Trial Motion[3]

On November 25, 2015, defendant moved for a new trial. Counsel declared that while discussing with defendant his right to testify, she first learned he “harbored some very real, very serious, very material delusions.” She had entered the case on September 2, 2015--that is, about two weeks after defendant’s arrest--and had received the 911 recordings on October 8, 2015. However, she did not listen to them until October 25, 2015, and even then she did not perceive their significance. The jury trial began on October 27, 2015, and after the only day of testimony, October 28, 2015, she first realized defendant might have serious mental problems, spoke with a supervisor, and made the mid-trial motions for a continuance or mistrial. After the verdicts, defendant was examined by psychologist Dr. Kent Caruso. Dr. Caruso’s report, dated November 18, 2015, opined defendant was not malingering, his “delusional thinking has persisted for almost a year now,” and he was probably psychotic. The new trial motion was predicated on three distinct grounds: (1) new evidence not previously discoverable; (2) improper denial of a continuance; and (3) ineffectiveness of defense counsel.

The prosecutor argued that “defendant chose to withhold information” from defense counsel, who could not be faulted for not knowing that information, and that she conducted the trial effectively based on what she did know. Because of defendant’s concealment of his mental state--as the prosecutor viewed it--it was not “newly discovered” evidence and there could be no ineffectiveness of counsel.

The trial court partly adopted the prosecutor’s reasoning, finding defendant “chose to keep information from counsel,” but also found from the 911 recordings “it’s clear that Mr. Collins is not 100 percent free from mental deficiency and that should have been known to the Defense as early as October 8th when counsel received the recording of the 9-1-1 call. [¶] I am denying the motion for the new trial based on the fact that this is evidence that is not new evidence. It’s evidence that defendant had within his own possession at all times before the trial.” (Italics added.) The trial court did not address the separately headed ground of ineffectiveness of counsel.

Defendant timely appealed from the ensuing judgment.

DISCUSSION

On appeal, defendant raised a number of claims, and we ordered supplemental briefing on the issue of whether the trial court abused its discretion in denying the mistrial motion. Because we find that it did, this is the only issue we need to address.

A trial court has discretion when ruling on a mistrial motion. (See People v. Jenkins (2000) 22 Cal.4th 900, 985.) But “[t]he discretion conferred . . . ‘is a discretion, governed by legal rules, to do justice according to law or to the analogies of the law, as near as may be.’ [Citation.] That is to say, the range of judicial discretion is determined by analogy to the rules contained in the general law and in the specific body or system of law in which the discretionary authority is granted.” (County of Yolo v. Garcia (1993) 20 Cal.App.4th 1771, 1778; see People v. Jacobs (2007) 156 Cal.App.4th 728, 736-738; City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297-1298.)

Typical factors considered in ruling on a mistrial motion include inconvenience to the parties and the administration of justice, prejudice to the nonmoving party, and the reason for the motion. A mistrial motion should be granted if there is prejudice to the defendant that cannot be cured, such as by an instruction or jury admonition. (People v. Jenkins, supra, 22 Cal.4th at pp. 985-986; People v. Hines (1997) 15 Cal.4th 997, 1038.) “ ‘A trial court should grant a mistrial only when a party’s chances of receiving a fair trial have been irreparably damaged.’ ” (People v. Clark (2011) 52 Cal.4th 856, 990.)

Here, all three trial witnesses were local, and there is no indication that the People would have had any difficulty ensuring their appearance later. The trial testimony had taken less than one full court day, so very little time would have been lost by granting the mistrial. These factors militated in favor of the motion. Most importantly, the reason was compelling. We have listened to the recordings, and it is clear to us, as it was to the trial court, that any reasonable defense attorney hearing these recordings would have questioned defendant’s mental state. Defendant’s statements in the recordings, together with his affect, strongly suggest that he is delusional. As described ante, defendant’s counsel, her supervisor, and the trial court all agreed defense counsel failed to properly investigate a plausible defense, which could have negated a critical element of the charged offenses and had been obviously worthy of investigation from the start of the case. Based on our review of the recordings, we agree.

Generally, a successful claim of ineffective assistance of counsel includes two elements; the defendant must show trial counsel’s actions fell below professional norms and that it is reasonably probable that a better result would have been obtained had counsel acted according to professional norms. (See People v. Ledesma (1987) 43 Cal.3d 171, 215-218.) But in determining prejudice, “there is no way to ever define just what quantum of evidence is necessary to convince a jury beyond a reasonable doubt of a defendant’s guilt.” (People v. Accardy (1960) 184 Cal.App.2d 1, 4.) To obtain a better result, a defense counsel merely needs to raise a reasonable doubt in the mind of one juror. (See People v. Soojian (2010) 190 Cal.App.4th 491, 518-521; Wiggins v. Smith (2003) 539 U.S. 510, 537 [156 L.Ed.2d 471, 495].)

Had the trial court granted a continuance, defense counsel might have cured her error, for example, by obtaining Dr. Caruso’s evaluation and having him testify for the defense at the continued trial. But once it determined a continuance was not appropriate, the trial court should have granted the alternative mistrial motion, to protect defendant’s fundamental right to the effective assistance of counsel.

Instead, the trial court characterized the issue before it as whether it had a duty to “bail out” defense counsel. That was legally incorrect, because the issue before the trial court was ensuring defendant’s right to a fair trial. (See People v. McKenzie (1983) 34 Cal.3d 616, 626-627.) Applying incorrect legal standards reflects an abuse of discretion. (See Paterno v. State of California (1999) 74 Cal.App.4th 68, 85.)

Often, when claimed ineffectiveness of counsel occurs outside the record, such as the failure to investigate, a defendant is relegated to a habeas corpus proceeding, where it can be determined what other actions trial counsel should have taken, and whether the alleged failing would have made any difference. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) But where, as here, a trial court knows mid-trial that defense counsel has not effectively represented the defendant and actually makes that finding, as here, a mistrial is the proper remedial action. “Counsel . . . can . . . deprive a defendant of the right to effective assistance, simply by failing to render ‘adequate legal assistance,’ ” which includes “a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” (Strickland v. Washington (1984) 466 U.S. 668, 686, 691 [80 L.Ed.2d 674, 692, 695]; see People v. Bolin (1998) 18 Cal.4th 297, 334 [“[w]hether to call certain witnesses is . . . a matter of trial tactics, unless the decision results from unreasonable failure to investigate,” italics added]; People v. Ledesma, supra, 43 Cal.3d at p. 215 [a defendant can “reasonably expect that before counsel undertakes to act at all [counsel] will make a rational and informed decision on strategy and tactics founded on adequate investigation and preparation”]; In re Cordero (1988) 46 Cal.3d 161, 181, fn. 8.)

Here, there was an unreasonable failure to investigate that deprived defendant of an adequate defense, as the trial court found. Because defense counsel did not listen to the recordings she had received until two days before trial, and even then did not understand their significance, she could not have made any rational tactical decisions about mounting her defense. Defendant was deprived of a constitutionally adequate investigation to support the defense that he thought he was in fact fighting Satan and not his mother, that he did not enter the trailer with the intent to commit a felony, that he did not make a criminal threat intending to place his mother in sustained fear, and did not comprehend the lawful commands of the peace officers. Defense counsel’s confessed inaction deprived defendant of evidence supporting a crucial defense that should have been decided by the jury. (See People v. Pope (1979) 23 Cal.3d 412, 423, 425-426.) Although she argued defendant was delusional, she had no expert evidence to back it up, as the prosecutor emphasized. (See id. at p. 425, fn. 15 [“Ibarra itself teaches that by failing to obtain an adjudication of the stronger of two potential defenses, trial counsel deprived his client of constitutionally adequate assistance”].)[4]

The Attorney General contends “the fact that two Deputy Public Defenders admitted trial counsel’s ineffectiveness does not make their conclusion legally correct.” We agree in the abstract. But here, as explained ante, the trial court, who was in the best position to know (see, e.g., People v. Callahan (2004) 124 Cal.App.4th 198, 211 [“The cases recognizing the trial court’s unique ability to evaluate an attorney’s performance are legion”]), found that defense counsel did not pursue an obvious and worthy line of defense investigation, adopting the views of trial counsel and her supervisor. Although there was no expert testimony about defendant’s delusional state at the time of the mistrial, it was counsel’s ineffectiveness itself that created the gap in evidentiary support. (See People v. Corona (1978) 80 Cal.App.3d 684, 723 [“The very vice of the procedure followed by trial counsel was his failure to properly investigate and develop facts which could have or would have given rise to the defense in question. Also, since the facts remained uncovered and undetected, there is no way of telling whether those facts, if fully developed, would or would not have established the defenses in dispute. If the record on appeal is defective or incomplete, it is due solely to the neglect of trial counsel”].)

Nor do we find the Attorney General’s or the prosecutor’s emphasis on defendant’s alleged “withholding” of information germane to the issue of ineffective counsel. To the extent that there is any evidence of defendant’s “withholding” evidence of his delusions from his counsel, this evidence is irrelevant to the claim of ineffective counsel. It is defense counsel’s job to provide an effective defense where one may be available. (See People v. McKenzie, supra, 34 Cal.3d at pp. 625, 631 [counsel’s duty to investigate is not altered by a defendant’s lack of cooperation].) In this case defense counsel should have been aware of defendant’s delusional state from the 911 recordings, as the trial court found, and should have sought a professional opinion before trial. Indeed, the very fact defendant may have been delusional--as Dr. Caruso later found--means he may well have been unaware of or in denial about his own condition. Without expert input, counsel could not have made rationally informed tactical decisions and thereby render effective assistance to defendant.[5]

The trial court failed to properly analyze the issue of whether defendant’s right to a fair trial had been irreparably impaired by an ineffective pretrial investigation. For the reasons we have explained, if the trial court had properly exercised its discretion, it would have granted the mistrial.

DISPOSITION

The judgment is reversed with directions to vacate the order denying the mistrial motion and to enter an order granting it. As required by statute, we direct the Clerk/Administrator to send certified copies of this opinion to the State Bar of California and to defendant’s trial counsel. (See Bus. & Prof. Code, § 6086.7, subds. (a)(2) & (b).)

/s/

Duarte, J.

We concur:

/s/

Nicholson, Acting P. J.

/s/

Robie, J.