Filed 11/29/18 P. v. Dean CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of Riverside County, Jeffrey E. Prevost, Judge. Conditionally affirmed and remanded with directions.

Michael A. Hestrin, District Attorney, Donald W. Ostertag and Robert A. Hightower, Deputy District Attorneys, for Plaintiff and Appellant.

Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Respondent.

INTRODUCTION

A jury found David Anthony Dean guilty of two counts of assault with a deadly weapon (Pen. Code,[1] § 245; count 1 [Victim 2], count 2 [Victim 1]) and burglary (§ 459; count 3) and found true an allegation he entered a residence where another person, other than an accomplice, was present during the commission of the burglary (§ 667.5, subd. (c)(21)) for breaking into the home of his relatives and assaulting Victim 1 and Victim 2 with a metal pipe. In the sanity phase of trial, the jury found Dean legally sane at the time he committed burglary (count 3) and assaulted Victim 1 (count 2), but the jury could not reach a verdict about Dean's sanity at the time he assaulted Victim 2 (count 1).[2] The trial court granted Dean's motion for new trial on the issue of sanity after concluding the jury did not give proper weight to the testimony of two court-appointed psychologists who both opined Dean was not sane at the time he committed the charged crimes.

The People contend the court abused its discretion in granting a new trial based on the court's experience with one of the experts rather than the evidence. We disagree, concluding there was ample evidence to support the court's exercise of discretion to grant a new trial. We conditionally affirm the new trial order, but we direct the court to consider on remand whether Dean is eligible for mental health diversion in light of recently enacted sections 1001.35 and 1001.36.

BACKGROUND

A

Victim 1 was awakened by a "crashing sound" on the night of April 14, 2015. Within seconds, Victim 1's bedroom door slammed open and Dean entered swinging a pipe. Victim 1 avoided the swing and the pipe missed Victim 1 by a matter of inches.

Dean left the room without saying anything and started to go downstairs. When Victim 2 came into the hallway, Dean swung the pipe at Victim 2. The pipe struck Victim 2's arm as Victim 2 tried to block the swing. Victim 2 fell down the stairs. Victim 2 experienced hip pain, a fracture of his forearm, and facial abrasions.

Victim 1 returned to the bedroom to retrieve a gun. When Victim 1 came back into the hallway, Dean was lying on his back on the landing of the stairs and Victim 2 was crawling up the stairs. As Victim 1's mother called 911, Victim 1 pointed the gun at Dean. Dean's leg appeared to be broken. Dean said "I'm King David, motherfucker. I'm King David. Shoot me. Shoot me." Dean crawled to the living room, repeating the statements over and over. Dean threw the pipe at Victim 1 who grabbed it and threw it into another room.

When Dean made his way to the kitchen, it sounded as if he was trying to get a knife. Victim 1 picked up Victim 2 because he could not walk and they exited the house with Victim 1's mother, who was still on the phone with 911.

When police officers arrived, they attempted to contact Dean by making announcements from the public-address system in a police car and calling various phone numbers provided by the victims. The officers left several messages on the home answering machine, which the victims said was audible throughout the house.

The officers approached a sliding glass door, which was shattered. They could see Dean lying on a couch in the family room with a knife in his hand held to his neck. As an officer yelled commands for Dean to show his hands and drop whatever weapon he had, Dean responded, "Fuck you," and "Get out of my house." He threatened to kill himself.

Officers attempted to negotiate with Dean. Dean referred to himself as "the King" at several points. Dean was delusional and rambled during the encounter. Dean had blood on the left side of his neck but continued to hold the knife against the wound.

Dean was not willing to communicate with officers, but he demanded cigarettes. He told the officers to get cigarettes from his vehicle, which was parked a couple of blocks away. When Dean pulled the knife away from his throat to point to where he wanted the cigarettes, an officer fired bean bags and a police dog was deployed to detain Dean. Dean stabbed himself in the neck as he rolled off the couch before being detained. He resisted officers' commands, even after a taser was used. The parties stipulated the only drug detected in Dean's blood was marijuana.

B

In the sanity phase of trial, the defense presented evidence from an officer who found a handwritten note on the kitchen floor shortly after Dean was detained. There was blood and fluid around the kitchen and the note was wet with blood. The note referred to Dean as a prince and to a dinosaur. The note was fragmented and did not make sense.[3]

Dr. Robert Suiter testified about his evaluation of Dean. Dr. Suiter described his education, training, and 30 years of experience as a clinical and forensic psychologist. He also described his experience providing court-appointed expert evaluations, including providing testimony of his psychological evaluations for the Riverside Superior Court.

Dr. Suiter evaluated Dean and reviewed historical mental health records, police reports, a letter from a family member, and handwritten documents from Dean. Dean had a history of psychosexual delusions, which are fixed beliefs not based in reality. He believed Victim 2 had sexually molested family members, who then engaged in molestation of others as adults. He also believed family members were suffering from Stockholm Syndrome. Dean also had a history of auditory hallucinations, believing voices talked to him from the television.

Dean told Dr. Suiter he believed Victim 2 had been molesting individuals, including a child. Dean went to the house on the night of the incident to confront Victim 2. Dr. Suiter explained individuals who are psychotic often recall events and their delusions and hallucinations when they are no longer psychotic.

Dr. Suiter opined Dean had a schizoaffective disorder and was not sane at the time of the crimes. He based his opinion on Dean's history of a chronic mental disorder along with symptoms at the time of the crime, which were corroborated by police reports of the arresting officers. Due to the severe mental disorder, Dean was experiencing an elaborate delusional system and was unable to appreciate his beliefs were not based in reality. His confrontation of Victim 2 based on the delusions led Dr. Suiter to conclude Dean was unable to appreciate the wrongfulness of his actions at the time. Dr. Suiter opined based on his extensive experience, Dean was not malingering, and his symptoms were consistent with the documents Dr. Suiter reviewed.

On cross-examination, Dr. Suiter said he was not aware of some specific facts of the crime in terms of how the witnesses described the assaults during trial. However, Dr. Suiter was aware of the general allegations and recalled details about the police interactions with Dean and his statements.

Dr. William Jones, a second court-appointed psychologist, described his education and 30 years of experience doing evaluations for Riverside Superior Court. Dr. Jones was appointed by the court to evaluate Dean's mental state at the time the crimes were committed. Dr. Jones interviewed Dean. He reviewed documents including the complaint, mental health records, and police reports of the incident.

Dr. Jones related delusions and hallucinations Dean described in the interview. Dean said he thought Victim's 1 and 2 were molesting children or were about to molest children in the family. Dean said he heard the voice of a Las Vegas casino owner. Dean also thought his cousin was communicating with him telepathically and they had a suicide pact. A year or two before the incident, Dean believed everyone in the world could hear or be aware of his thoughts. Dean's mother confirmed his history of mental illness stating he had delusions that he needed to protect someone and had paranoid thinking.

Dean said he went to the home on the night of the incident because he was trying to prevent a child from being molested. Dean said Victim 1 had Stockholm Syndrome. Dean believed the police were "in on it."

Dr. Jones opined Dean had bipolar mood disorder, type I, with psychotic features. In his opinion, Dean suffered from this mental illness at the time of the incident. Dr. Jones saw no evidence to indicate malingering. Dr. Jones considered Dean's behavior leading up to the crime. Dr. Jones opined Dean was legally insane at the time he committed the crimes. Dean was not capable of knowing or understanding the nature of his acts or distinguishing right from wrong. He agreed a person can know what they are doing and not know or understand it is morally or legally wrong.

Neither Dr. Suiter nor Dr. Jones gave Dean tests for malingering. Dr. Jones explained it would not be appropriate to give tests to evaluate malingering in a forensic setting such as this because malingering tests evaluate the symptoms reported at the time of the interview rather than the person's state of mind at an earlier time, such as when the crime occurred. It is not useful in retrospect. Dr. Jones stated the fact Dean stabbed himself in the neck twice appeared to be a significant suicidal effort, which is not consistent with malingering.

DISCUSSION

I

The People contend the court erred in granting a new trial on the issue of sanity. We disagree.

A

"If a defendant pleads both not guilty and not guilty by reason of insanity, the trial is bifurcated. In the guilt phase of the trial, which occurs first, the defendant is conclusively presumed to have been legally sane at the time of the offense. [Citations.] If the defendant is found guilty, the trial proceeds to the sanity phase, in which the defendant has the burden to prove 'by a preponderance of the evidence that he or she was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense.' [Citations.] Our Supreme Court has interpreted this statutory language to mean that insanity can be shown under either the 'nature and quality' prong or the 'right from wrong' prong of the test. (People v. Skinner (1985) 39 Cal.3d 765, 775–777.) The court has also held that 'a defendant who is incapable of understanding that his act is morally wrong is not criminally liable merely because he knows the act is unlawful.' " (People v. McCarrick (2016) 6 Cal.App.5th 227, 246, citing §§ 25, 1026, subd. (a).)

A court may grant a new trial under section 1181, subdivision 6 or 7, if the jury's verdict is contrary to the law or the evidence. A trial court reviewing a motion for new trial does not give deference to the jury's evidentiary findings. It independently examines all the evidence and may conclude the jury's verdict is contrary to the evidence. "In doing so, the judge acts as a 13th juror who is a 'holdout' for acquittal. Thus, the grant of a section 1181[, subdivision] (6) motion is the equivalent of a mistrial caused by a hung jury." (Porter v. Superior Court (2009) 47 Cal.4th 125, 133.)

" ' "We review a trial court's ruling on a motion for a new trial under a deferential abuse-of-discretion standard." [Citations.] " 'A trial court's ruling on a motion for new trial is so completely within that court's discretion that a reviewing court will not disturb the ruling absent a manifest and unmistakable abuse of that discretion.' " ' " (People v. Lightsey (2012) 54 Cal.4th 668, 729.)

B

Here, the defense presented expert testimony from two court-appointed psychologists who both opined Dean was insane at the time he committed the crimes. Both testified about their extensive education and experience. Both based their opinions about Dean's insanity on their review of police reports and charging documents as well as Dean's mental health history and their own interviews of Dean.

The prosecution presented no contrary expert evidence. Instead, the prosecutor aggressively cross-examined both court-appointed witnesses based on their knowledge of details about the crime and whether the experts tested for malingering. In discussing the new trial motion, defense counsel pointed out the "tremendous attack on cross-examination" may have made the experts look weak before the jury. Dr. Jones, for example did not push back as did Dr. Suiter, but the opinions were qualified and competent. The court agreed, commenting although it characterized the testimony of Dr. Jones as "somewhat weak," the court thought "[Dr. Jones's] conclusions were sound."

The court did not improperly consider evidence outside the record to grant the new trial motion. The court determined the jury did not give the experts' testimony proper weight. The court commented it had seen Dr. Suiter testify before and had confidence in his evaluation, which is consistent with Dr. Suiter's testimony about his extensive experience as a forensic examiner who conducts court-appointed mental health evaluations. The court's comment was in the context of mentioning it did not have previous experience with Dr. Jones, but nevertheless thought his opinions were sound. When the prosecution asked the court if it considered the facts of the case in making its ruling on the new trial motion as opposed to its experience with Dr. Suiter, the court confirmed it did consider the facts of the case.

Even if we were to disregard the testimony of Dr. Suiter based on the court's innocuous comment, the court's finding that Dr. Jones's testimony was credible and his opinion well-formed was sufficient to grant a new trial. Therefore, we conclude the court did not abuse its discretion.

II

Effective June 27, 2018, the Legislature created a diversion program for defendants with qualifying mental disorders, "including, but not limited to bipolar disorder, schizophrenia, schizoaffective disorder, and posttraumatic stress disorder … ." (§ 1001.36, subd. (a).) "One of the stated purposes of the legislation [is] to promote '[i]ncreased diversion of individuals with mental disorders … while protecting public safety.' (§ 1001.35, subd. (a).) 'As used in this chapter, "pretrial diversion" means the postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication … .' (§ 1001.36, subd. (c).)" (People v. Frahs (2018) 27 Cal.App.5th 784, 789 (Frahs).)

Section 1001.36, subdivision (a), provides the court may grant pretrial diversion if a defendant meets six requirements. The requirements are, in pertinent part: (1) the court is satisfied that the defendant suffers from a qualifying mental disorder, as defined by the statute; (2) the court is satisfied "the defendant's mental disorder played a significant role in the commission of the charged offense"; (3) a qualified mental health expert opines "the defendant's symptoms motivating the criminal behavior would respond to mental health treatment"; (4) the defendant "consents to diversion and waives his or her right to a speedy trial"; (5) the defendant "agrees to comply with treatment as a condition of diversion"; and (6) the court is satisfied "the defendant will not pose an unreasonable risk of danger to public safety … if treated in the community." (§ 1001.36, subd. (b).)[4]

In response to our request for supplemental briefing, Dean contends the newly enacted statutes should apply retroactively and he is an appropriate candidate for mental health diversion because the court-appointed experts opined he had schizoaffective disorder or bipolar mood disorder, which both qualify as a mental health condition under section 1001.36, subdivision (a). The People contend the diversion statutes should not apply retroactively because the statutes are permissive and do not affect an entire class of persons.

"In general, statutes are presumed to apply prospectively unless they state otherwise. (See § 3.) However, the presumption against retroactivity does not apply when the Legislature reduces the punishment for criminal conduct. (In re Estrada (1965) 63 Cal.2d 740 (Estrada).) The Supreme Court's reasoning in Estrada is that when a statute reduces or ameliorates the punishment, it is presumed that the Legislature has determined the offense no longer merits the greater punishment, and this rationale applies even if the defendant was convicted and sentenced before the statute became effective." (Frahs, supra, 27 Cal.App.5th at p. 790.) " 'The Estrada rule rests on an inference that, in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.' " (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308.) The Supreme Court recently extended the Estrada retroactivity analysis to the Public Safety and Rehabilitation Act of 2016 (Prop. 57), which "did not ameliorate the punishment, or possible punishment, for a particular crime" but "ameliorated the possible punishment for a class of persons, namely juveniles." (Lara, at p. 308.)

Our colleagues in Division Three of the Court of Appeal, Fourth Appellate District recently determined the newly enacted mental health diversion statutes should apply retroactively because "the Legislature 'must have intended' that the potential 'ameliorating benefits' of mental health diversion to 'apply to every case to which it constitutionally could apply.' " (Frahs, supra, 27 Cal.App.5th at p. 791.) We agree. The Legislature enacted the diversion statutes to ameliorate possible punishment for a class of individuals with qualifying mental health disorders by increasing diversion "to mitigate the individuals' entry and reentry into the criminal justice system while protecting public safety." (§ 1001.35, subd. (a).) Although the statutes are permissive, they are intended to apply broadly to allow "local discretion and flexibility for counties in the development and implementation of diversion for individuals with mental disorders across a continuum of care settings" and to provide "diversion that meets the unique mental health treatment and support needs of individuals with mental disorders." (§ 1001.35, subds. (b), (c).) Dean's prosecution is not yet finally adjudicated since sanity is still at issue. Accordingly, we conclude the court should consider on remand whether Dean qualifies for mental health diversion under the applicable provisions of section 1001.36.

DISPOSITION

The order granting new trial is conditionally affirmed. On remand, the trial court shall consider within 90 days of the issuance of the remittitur whether Dean is eligible for mental health diversion under section 1001.36. If diversion is granted and Dean successfully completes diversion, the court shall dismiss the charges as provided by

statute. However, if the court determines Dean is ineligible for diversion or does not successfully complete diversion, then the court shall conduct a new trial on the issue of sanity.

McCONNELL, P. J.

WE CONCUR:

O'ROURKE, J.

DATO, J.