P. v. Issa
Filed 12/13/12 P. v. Issa CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
AMIER ROCKY ISSA,
Defendant and Appellant.
D060603
(Super. Ct.
No. SCD214958)
APPEAL from
a judgment of the Superior Court
of
County, Joseph P. Brannigan, Judge. Affirmed.
A jury
convicted Amier Rocky Issa of assault with force likely to cause great bodily
injury (Pen. Code, § 245, subd. (a)(4))
and found true he personally inflicted great bodily injury (§ 12022.7,
subd. (e)) using a deadly weapon (§ 1192.7, subd. (c)(23)). On appeal, Issa asserts the court erred by
(1) ordering him to pay probation costs without a hearing to determine his
ability to pay or sufficient evidence of his ability to pay, and (2) denying
his motion for a new trial using a preponderance
of the evidence standard to determine whether he was competent during
trial.
FACTUAL
AND PROCEDURAL BACKGROUND
On July 11, 2008, Issa slashed Michael
Serrato's face along the jaw line using a three-inch, folding knife resulting
in a permanent four- to five-and-one-half-inch scar. Issa and Serrato had a tumultuous romantic
relationship prior to the slashing. Issa
pleaded not guilty to the charges of assaulting Serrato with a deadly weapon
using force likely to cause great injury, personally inflicting great bodily
injury using a knife, and making a criminal threat. Judge Gill suspended
to appear for a competency examination.
Dr. Carroll found Issa was competent to stand trial, the court agreed,
and Issa was ordered back to court. The
case was sent to Judge Halgren, who suspended the proceedings and ordered Issa
to appear for another competency examination.
Dr. Christison determined Issa had been restored to competency, but
noted he seemed to have a problem with his counsel and was seeking new counsel. Judge Maguire reinstated the criminal
proceedings based on Christison's findings, and Issa was tried by a jury before
Judge Brannigan from September 28,
2010, until October 6,
2010.
Issa fled
to Las Vegas during jury
deliberation and the jury convicted him in
absentia. The jury found Issa guilty
of assault with a deadly weapon using force likely to cause great injury with a
true finding that he caused great bodily injury, and found him not guilty of
making a criminal threat. Issa was arrested in Las
Vegas and Judge Szumowski suspended criminal
proceedings and ordered a competency exam.
Dr. Takamura found Issa was incompetent at the exam but did not
offer an opinion whether Issa was competent during trial. Judge Maguire agreed with Takamura and
ordered Issa to return to Patton State
Hospital. Judge Maguire later ordered another
competency hearing and Issa was found to be restored to competency. Judge Maguire ordered Issa to return to court
for sentencing before Judge Brannigan.
A. Motion for
New Trial
Prior to
sentencing, Issa filed a motion for a new trial. He argued he should be retried because he was
incompetent to stand trial. Issa's motion for a new trial recited that
during trial the court presided over two quasi-Marsden
title="">[2]
type hearings;
title="">[3]
his behavior throughout trial was irrational, inappropriate and paranoid; and
his testimony was combative with both his attorney and the prosecution. He asserted that after trial he had
completely deteriorated mentally when he fled to Las Vegas
and was found with various medications, large quantities of salt he had been
ingesting, a rope and a tent. Lastly,
Issa argued that although he was not found incompetent until a month after
trial, there was substantial evidence that should have cast a doubt on the
prior finding of competency, and Judge Brannigan should have ordered another
competency hearing during trial.
Judge
Brannigan denied the motion for a new trial.
The court gave a lengthy explanation of the denial of the motion. It explained it had taken "great
efforts" and "particular pains" to interact with Issa during
trial to make sure he was competent. The
court acknowledged Issa's attorney raised "red flags" regarding
Issa's competency and the attorney-client relationship was contentious. The court stated it believed Issa was
competent during trial and did not find there was a change in circumstances
justifying another competency hearing.
It concluded that after rereading the record and based on its
interactions with Issa, it never expressed doubt as to Issa's competence to
stand trial. Issa then filed an oral
motion to relieve his counsel, claiming ineffective assistance. The court denied the motion, explaining
Issa's attorney had done the best he could with a difficult client, and
sentencing proceeded.
B. Probation
Costs
At
sentencing, the court proposed Issa be placed on formal probation for three
years with conditions tailored to remedying mental illness issues. The court also proposed an order for Issa to
reimburse probation costs. Issa met with
a probation officer who questioned him about his employment and financial
situations and submitted a probation report to the court. The court took a short recess to allow Issa
and his attorney to discuss the proposed terms of probation and the order to
pay probation costs.
After the
recess, Issa's attorney told the court he had gone over the proposed orders
with Issa, and "[Issa was] prepared to accept those terms with the
following comments as to a few of them."
His counsel claimed that although Issa had a "healthy bank account
three years ago," he was "beyond broke, unemployed." Issa had expressed concern that he had a
felony conviction on his record and he would have difficulty finding a
job. He would also be living with his family
in Los Angeles. His counsel added Issa had served 365 days in
custody since the charges were filed against him, then stated, "With that
in mind, I'd ask the court [to] consider striking what fines can be stricken
and costs that can be stricken so at least [Issa] can start out not saddled
with a tremendous amount of additional debt on top of what he's picked up while
sitting in custody."
The court
asked Issa's attorney if he was requesting some of the fines be satisfied by
Issa's time in custody. His attorney
replied, "Additionally, yes, sir. [¶] . . . But I'd ask that at least some of those that
can be stricken . . . .
[T]he court's security fee and some of those others are not strikable
[sic], but I know that the court can make a good-cause finding to strike a lot
of that as well as the probation report costs and things of that
nature." The court then gave the
prosecution time to respond, and the prosecution emphasized that it is fair for
an employer to know that Issa is a dangerous individual. The court acknowledged Issa had been in
custody for some time, was unemployed and had not had a job for some time. The court then gave Issa "credit against
his fines for the time that he's served. . . . [A]ny of those that can be satisfied by
custody will be satisfied. If any of
them are not of the type that can be stricken due to giving credit for custody
that has been served, then [Issa] will have to pay those." The court ordered Issa to pay probation costs
of $1,124 for the presentence investigation report fee and a $99 per month
probation supervision cost. Issa did not
object to the final order or request a separate hearing on his ability to pay
the costs.
DISCUSSION
I
Issa
contends the court erred by ordering him to reimburse probation costs because
it did not provide him with a hearing to determine his ability to pay them, and
the evidence was insufficient to establish his ability to pay. The People contend Issa forfeited these
appellate claims because he did not request a hearing. Issa asserts he did not forfeit the claims on
appeal because his attorney placed the court on notice of the issues, and
challenges to orders not supported by substantial
evidence do not require an objection below.
A. Preserving
the Claims for Review
Generally,
claims raised on appeal regarding probation conditions must have been raised at
trial. (People v. Valtakis (2003) 105 Cal.App.4th 1066, 1071-1072, citing
232-237.) Claims that, although
" 'otherwise permitted by law, were imposed in a procedurally or
factually flawed manner' " are forfeited on appeal. (Valtakis,
at p. 1072.) This is "the claim
here: the probation fees, otherwise permitted, were procedurally flawed (for
absence of notice, a hearing or a finding) and factually flawed (for absence of
evidence that the defendant had the ability to pay)." (Ibid.) Issa was required to object to the purported
absence of a hearing and of evidence of his ability to pay. Although Issa requested the court strike all
fines it had the ability to strike, it was not clearly an objection or a
request for a hearing.
Further,
Issa's attorney did not object or raise any probation fee issue after the court
agreed to strike certain costs. The
court stated, "[i]f any of [the fines and fees] are not of the type that
can be stricken due to giving credit for custody that has been served, then
[Issa] will have to pay those."
This statement was the last time the restitution order was discussed at
sentencing. Issa offered no objection to
the court's final determination that the credits would be applied and he would
have to pay the remainder.
Issa claims
People v. Pacheco (2010) 187
Cal.App.4th 1392, People v. Lopez
(2005) 129 Cal.App.4th 1508, and
without an objection in the lower court. We disagree.
Because Pacheco relies on
there is a presumption that prisoners are unable to pay probation costs and
attorney fees. (People v. Lopez, supra, 129 Cal.App.4th at pp. 1536-1537.) The court held a state prisoner sentenced to
pay $1,000 in attorney fees was denied an appropriate hearing to determine his
ability to pay. (Ibid.) The court reasoned that because of the
presumption that a prisoner is unable to pay, he or she generally should be
entitled to an express finding of the ability to pay. (Ibid.). Because of that presumption and the absence
of evidence of his ability to pay, Lopez could raise the issue for the first
time on appeal. (Ibid.)
Similarly,
circumstance in which a court orders a defendant to reimburse his or her public
defender's fees and the public defender does not object. (Viray,
supra, 134 Cal.App.4th at p. 1216, fn. 15.)
title="">[4] There must be a conflict of interest related
to publicly funded counsel to apply Viray
here. (Viray, supra, 134 Cal.App.4th at p. 1216, fn. 15.)
Unlike
probation and is not a prisoner. Thus,
there is no presumption he cannot pay costs.
Contrary to Viray, the
disputed fees here do not seek reimbursement for publicly financed counsel,
there is no conflict of interest, and there is sufficient evidence of Issa's
ability to pay. Consequently, neither
concerning preservation of objections by a represented party." (Viray,
supra, 134 Cal.App.4th at p. 1216, fn. 15.) Because Issa did not
object to the court's final determination he would have to pay the costs that
could not be stricken, and did not object to the informal hearing, we conclude
he did not preserve his claims for appeal.
We hold
Issa forfeited his claims on appeal by not requesting a hearing or objecting to
the trial court's final order.
Nevertheless, we conclude the court properly held a hearing to determine
Issa's ability to pay by holding an informal hearing at sentencing. Additionally, we exercise our discretion to
review the challenge to the sufficiency of the evidence, and conclude there is
substantial evidence of Issa's ability to pay even if he forfeited the claim on
appeal.
B. The Court
Conducted a Hearing
Although we
hold Issa forfeited his claim on appeal, we nevertheless conclude the court
properly conducted a hearing on Issa's ability to reimburse probation
costs. Section 1203.1b, subdivision (a), requires that when a defendant is convicted
and placed on probation, the probation officer must make a determination of the
defendant's ability to pay any probation fees the court might order the
defendant to reimburse. The probation
officer must also inform the defendant that he or she has a right to a separate
court hearing on the defendant's ability to pay. (Ibid.)
At the
hearing, "the court shall make a determination of the defendant's ability
to pay and the payment amount. The
defendant must waive the right to a determination by the court of his or her
ability to pay and the payment amount by a knowing and intelligent
waiver." (§ 1203.1b, subd.
(a).) After a hearing or waiver of a
hearing, "[t]he court shall order the defendant to pay the reasonable
costs [of probation] if it determines that the defendant has the ability to pay
those costs based on the report of the probation
officer . . . ."
(§ 1203.1b, subd. (b).) At
an ability to pay hearing, the defendant is entitled to have the opportunity to
be heard and present evidence.
name="_ftnref5" title="">[5] (§ 1203.1b, subd. (b)(1).)
Hearings to
determine ability to pay can be informal and conducted as part of
sentencing. (People v. Phillips (1994) 25 Cal.App.4th 62, 69-70.) "The court's finding of the defendant's
present ability to pay need not be express, but may be implied through the
content and conduct of the hearings."
(People v. Pacheco, supra, 187
Cal.App.4th at p. 1398.) Here, the
court conducted an informal hearing integrated with the sentencing hearing to
determine Issa's ability to pay probation fees.
The court granted a short recess so Issa and his attorney could review
the proposed order for reimbursement.
After recess, Issa agreed to accept the terms of the probation report
and the order to reimburse probation costs if the court would strike "what
fines can be stricken."
The court
gave Issa the opportunity to be heard and offer evidence as to his ability to
pay. Issa asserted he was unemployed and
had no assets, and requested the court strike costs. The court agreed to apply credits Issa garnered
in custody to his probation fines and fees.
This exchange at sentencing provided Issa an adequate opportunity to be
heard regarding his ability to pay fees.
Therefore, the court did not deny him a hearing within the meaning of
section 1203.1b, subdivision (b).
C. The Record
Contains Substantial Evidence of Issa's Ability to Pay
Although
neither the court nor the prosecution offered a rebuttal at Issa's ability to
pay hearing, the record contains substantial evidence of Issa's ability to pay
the $1,127 presentence investigation and report fine, and the $99 a month
probation supervision fees. Findings of
ability to pay must be supported by substantial evidence. (People
v. Pacheco, supra,187 Cal.App.4th at p. 1398.) According to Section 1203.1b, evidence of
ability to pay includes, but is not limited to, the defendant's:
"(1) Present financial position. [¶] (2) Reasonably
discernible future financial position. In no event shall the court consider a
period of more than one year from the date of the hearing for purposes of
determining reasonably discernible future financial position. [¶] (3)
Likelihood that the defendant shall be able to obtain employment within the
one-year period from the date of the hearing. [¶] (4) Any other factor or
factors that may bear upon the defendant's financial capability to reimburse
the county for the costs."
(§ 1203.1b, subd. (e).)
Issa was
unemployed at the time of the hearing and did not have assets, which weighs in
favor of finding he has an inability to pay the probation costs. However, Issa's probation report shows he may
be in a good position to obtain employment because he has a degree in
psychology with a minor in biology and computer science engineering. Moreover, Issa has 11 years of experience
working as a Senior Systems Administrator, earning $86,000 per year. He also owned a consulting business for five
years that garnered him an extra $25,000 per year. He was apparently offered a job after his
conviction as an IT Manager of Electrical Engineering with a $90,000 salary,
but was not hired because of the felony on his record.
A felony on
Issa's record will undoubtedly continue to be detrimental to his
employability. However, his excellent
employment history, past wages, and degree provide sufficient evidence for the
court to conclude he will be employed and earning satisfactory wages within a
year from the date of the hearing, although potentially in a less advanced
field. Issa also stated he planned to
live with his family in Los Angeles, so it is reasonable for the court to infer
he does not and will not have excessive expenses in the next year. Finally, Issa plans to "get a job, get
married, get a house and have a kid or two," which demonstrates his willingness
to become employed and continue with his life.
The record
contains substantial evidence to show Issa's ability to pay probation costs,
and the court properly ordered him to pay.
Further supporting the court's discretion is the legislative intent of
Section 1203.1b. That section
" 'reflect[s] a strong legislative policy in favor of shifting the
costs stemming from criminal acts back to the convicted defendant' and
' " 'replenishing a county treasury from the pockets of those
who have directly benefited from county expenditures.' " ' " (People
v. Valtakis, supra, 105 Cal.App.4th at p. 1073.)
D. Modifying or
Vacating the Reimbursement Order
Because we
hold the court conducted an informal ability to pay hearing and the record
contains substantial evidence to support the order for reimbursement, we affirm
the order. However, if Issa cannot pay
the $99 probation supervision fee and the $1,127 presentence investigation
report fee, it is within his rights to petition the probation officer for a
review of his ability to pay, or to petition the trial court to modify or
vacate the order. (§ 1203.1b, subd.
(f).)
II
Trial
Issa
contends the court erroneously used a preponderance of the evidence standard in
evaluating evidence regarding his competency to stand trial, and thus
improperly denied his motion for a new trial.
He argues the court should have evaluated new evidence or a substantial
change in competence by gauging whether it cast a doubt on a prior finding of competence. Issa concludes the error is structural and a
due process violation. Based on our
review of the record, the court did not use the incorrect preponderance of the
evidence standard and was not presented with new evidence or a substantial
change of circumstances casting "serious doubt on the validity of the
prior finding of [Issa's] competence."
(People v. Medina (1995) 11 Cal.4th 694, 734.) We conclude the court determined Issa was
competent during trial using the correct standard and properly denied his
A. Standard of
Review
"A
trial court has broad discretion in ruling on a motion for a new trial, and
there is a strong presumption that it properly exercised that
discretion." (People v. Davis (1995) 10 Cal.4th 463, 524.) 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]' " (
635, 686.)
B. The Court
Used the Correct Competency Standard
It is a due
process violation to convict a defendant of a crime if the defendant is
incompetent during trial. (
375.) A defendant is incompetent if
"as a result of mental disorder or developmental disability, the defendant
is unable to understand the nature of the criminal proceedings or to assist
counsel in the conduct of a defense in a rational manner." (§ 1367, subd. (a).) If a judge expresses doubt as to a
defendant's mental competency, the judge must suspend proceedings and order a
competency examination. (§ 1368,
subds. (a), (c).)
Additionally,
if a defendant offers substantial evidence of mental incompetency, the judge
has no discretion and must order a competency examination. (People
v. Pennington (1967) 66 Cal.2d 508, 518; § 1368, subd. (a).) Substantial evidence of mental incompetency
must be more than bizarre actions and statements, defense counsel's statements
that a defendant is unable to assist with his or her own defense, or
psychiatric evidence of mental problems that does not refer to a defendant's
ability to aid in his or her own defense.
(People v. Laudermilk (1967)
67 Cal.2d 272, 285.) However, failure to
order a competency examination when a defendant presents substantial evidence
of mental incompetency or a judge expresses a doubt as to competency is per se
prejudicial. (Pennington, at p. 521.)
After a defendant is found to be competent, "the criminal process shall
resume, the trial on the offense charged shall proceed, and judgment may be
pronounced." (§ 1370, subd.
(a)(1)(A).)
If a
defendant has previously been found to be competent after a competency hearing,
the court is only required to order another competency examination if it is
presented with new evidence or a substantial change in circumstances that casts
a "serious doubt on the validity of that finding." (People
v. Jones (1991) 53 Cal.3d 1115, 1153.)
We generally give "great deference to a trial court's decision
whether to hold a competency hearing."
(People v. Marshall (1997) 15
Cal.4th 1, 33.)
"[W]hen, as in this case, a competency hearing has
already been held, the trial court may appropriately take its personal
observations into account in determining whether there has been some
significant change in the defendant's mental state. This is particularly true when, as here, the
defendant has actively participated in the trial. The trial court had an opportunity to
observe, and converse with, defendant throughout the trial itself and the
posttrial proceedings. The court
appropriately considered these observations in concluding that defendant's
condition was essentially unchanged from the start of trial, when the court
found him competent, to the time he was sentenced, when defense counsel asked
that proceedings again be suspended."
(People v. Jones, supra, 53
Cal.3d at p. 1153.)
Issa argues
the court used the wrong legal standard in determining competency, and we
should not show deference to the court's discretion. He contends the judge's statement that he
"took particular pains to interact with [Issa] and determine for [himself]
if [he] believed and found [Issa] was incompetent" indicates the court required
Issa to prove a substantial change by a preponderance of evidence. However, the judge reiterated the correct
"reasonable doubt" standard multiple times in open court and even
stated the parties had agreed to that standard at a prior hearing. The judge further made it a point to interact
with Issa to detect any signs of incompetence.
The judge's deliberate interactions with Issa did not show the judge had
a serious doubt as to Issa's competency, or that the court required proof of
incompetence by a preponderance of the evidence. It shows the judge, in an abundance of
caution, focused on Issa to ensure his due process rights were not
violated. The court applied the correct
legal standard when determining whether to order another competency hearing.
C. The Court
Was Not Required to Order a Competency Hearing
Issa
further asserts he presented the court with substantial evidence of
incompetency and the court erroneously did not order a competency hearing. Before the hearing on the motion for a new
trial, the court took time to reread the pleadings and cases the parties cited,
review notes it took during oral argument, and comb the entire case file to
ensure a just ruling on the motion for a new trial. At the hearing, the court detailed the more
than three-year timeline starting two months before the crime to the present
with Issa, his counsel, and the prosecution.
The court then reiterated the prosecution's and defense counsel's
positions and evidence regarding Issa's competency. The court considered all of the relevant
evidence before it, and reasonably came to the conclusion there was no
substantial change in circumstances warranting a new trial.
In
evaluating whether the court should have suspended proceedings and ordered a
competency hearing, we address only whether there was substantial evidence of
Issa's competency presented to the court during trial from September 28, 2010,
to October 6, 2010. The court,
prosecution and defense agree that Issa's competency "waxes and
wanes" but the only question before us is whether he presented substantial
evidence he was incompetent at trial. The authorities contained in the motion for a
new trial presented to the court the following facts: (1) Issa secretly
videotaped an argument with his attorney using his cell phone and later
publicly posted it to YouTube.com; (2) there were two quasi-
between Issa and his attorney; (3) the court had to admonish Issa for his
behavior frequently; (4) Issa called his fiancée, a woman he met on the
Internet, in the presence of the jury during recess; (5) Issa changed his mind
about testifying on his own behalf several times and, when he did testify, was
combative with his own attorney and the prosecution.
These
facts, although bizarre and indicative of a difficult client, do not necessarily
establish Issa was unable to understand the charges against him or assist his
attorney in representing him. The
standard for competency is low, and mentally ill or difficult clients are not
necessarily incompetent. (
at pp. 285-288.) Issa stated at
various times that he understood the charges against him, he participated in
court proceedings, and he gave his attorney information to aid in his defense. Even his attorney's statements that Issa was
not cooperating with his own defense did not oblige the court to order a
competency hearing. The court considered
these facts, and concluded there was no substantial change in
circumstances. Issa's paranoia and
difficult nature were not new evidence to the court. The court could reasonably conclude that
although Issa was combative and likely had a mental illness, he was competent
to stand trial.
Issa's
flight to Las Vegas and the following finding of incompetence do not
necessarily indicate he was incompetent at trial. Issa fled after the jury was given the case
for deliberation and the proceedings were suspended after the jury found him
guilty of the first count. A doctor then
found Issa incompetent in December of 2010.
The incompetency finding was only "one of present incompetence" (People
v. Smith (2003) 110 Cal.App.4th 492, 504), and did not determine that Issa
was incompetent during trial. He was
restored to competency prior to the hearing on his motion for a new trial and
sentencing. The court considered the
flight and still found Issa could understand the charges against him and aid
his attorney in his defense before he fled.
There was no substantial change in circumstances or new evidence
presented during trial indicating the court was using a preponderance of the
evidence rather than a reasonable doubt standard.
We conclude
the court did not abuse its discretion by denying the motion for a new
trial. The court used the proper
standard when determining Issa's competence at trial and appropriately exercised
its discretion to deny the motion for a
new trial based on its own observations and the competency evidence
presented.
DISPOSITION
The judgment is affirmed.
McDONALD, J.
WE CONCUR:
HUFFMAN, Acting P. J.
McINTYRE, J.
name="_ftn1" title="">[1] All further statutory references are to the Penal Code.
name="_ftn2" title="">[2] People v. Marsden (1970)
2 Cal.3d 118.
