P. v. Ogg

Filed 1/11/08 P. v. Ogg CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

A jury convicted defendant Emil Morad Ogg of single counts of attempted murder, corporal injury on a cohabitant, and assault with a deadly weapon, arising from an attack by defendant on his live-in girlfriend, Diana D. (Diana). (Respectively, Pen. Code, 664/187, 273.5, subd. (a), 245, subd. (a)(1).)^[1] The jury also sustained allegations of great bodily injury and weapon use. ( 12022.7, subd. (e), 12022, subd. (b)(1).)

Sentenced to 29 years in prison, defendant appeals. He contends the trial court erroneously: (1) excluded expert psychological testimony regarding his mental state; (2) denied a mistrial where the prosecutor insinuated that defense counsel had scripted defendants testimony; (3) refused to appoint conflict counsel to investigate a prior conviction of defendants that was deemed a strike under the Three Strikes law; (4) ordered defendant to pay defense counsel costs; and (5) violated his jury trial and related due process rights by sentencing him to upper terms.

We affirm the judgment in all respects but one: we reverse the order involving the payment of defense counsel costs. We also direct the trial court to appoint a nonconflicted counsel in a habeas corpus proceeding regarding the challenged prior conviction.

Background

On the late morning of March 11, 2004, defendant returned to the Sacramento apartment he shared with Diana after being out drinking and smoking crack cocaine. Defendants drug use had been a sore subject in their relationship. Upon defendants return that morning, Diana again raised the drug issue, but defendant tried to change the subject by suggesting they have sex. Diana agreed, but said she needed to shower first.

Diana then changed her mind about taking a shower and having sex with defendant. As she walked back toward the bedroom, she saw defendant in there smoking crack cocaine. She went into the living room to think. After a few minutes, Diana walked back to the bedroom. Defendant had now closed the bedroom door and would not let her in.

Suddenly, though, the bedroom door fl[ew] open. Defendant was wearing Dianas black leather trench coat and her tennis shoes, and he threw powdered laundry detergent in her face. As Diana was brushing off the detergent, defendant put a knife to her throat while standing behind her. Then defendant turned Diana to face him and told her to look into his eyes to see why he was nicknamed Evil. Defendant held the knife with a sock-covered hand. Although he initially told Diana he would not kill her because he loved her children, defendant again moved back behind her, holding the knife at her throat with his sock-covered right hand while covering her nose and mouth with his left hand. Pressing the knife against Dianas throat, defendant asked where her jugular was.

Diana struggled and defendant twice extensively sliced her neck and twice punctured her neck. Defendant added that he had gasoline in the car and he was going to wrap her body up and dump it.

Diana clawed her way to the front door while defendant continued to stab her. She bit his hand and lost a tooth, but got the door opened and fled outside, naked and bloody, onto their second floor balcony. Diana called for help while defendant ran down the stairs and sped off in her car.

A neighbor, Robert D., with whom defendant had smoked crack cocaine earlier that morning, was on the stairs as defendant ran past. Defendant told Robert something like, Dont stick your nose in this or Ill stick you too; defendant may have been holding a knife.

Diana was hospitalized for two days and treated for 13 stab wounds. Besides the stab wounds to her neck, she also had been stabbed in her temple as well as her jaw, chest, shoulder, back, stomach and arm. Some of these wounds could not be sutured and had to be packed.

On March 21, 2004, Dianas car was recovered after being abandoned in north Sacramento. In June 2004, defendant was apprehended in Sacramento after initially falsely identifying himself.

Defendant was the only witness for the defense. He admitted the charges for assault with a deadly weapon and for domestic violence. But he challenged the attempted murder charge, claiming he had not formed the required mental state (intent to kill) given his drug and alcohol usage on the morning of the incident.

That usage consisted of eight beers, a Sherm cigarette (Sherman-brand cigarette dipped in embalming fluid), and half an ounce of crack cocaine consumed at Roberts apartment on the morning of the incident. The Sherm cigarette slowed him, the crack quickened him, and he felt amuck with his mind in another dimension.

Defendant returned home on the morning of the incident about the same time as Diana. Defendant was nervous because Diana could tell he had been using drugs. While Diana went to take a shower, defendant smoked all of his remaining crack cocaine (to get rid of it without having to throw it away); this entailed a nonstop smoke lasting about 60 seconds. He became amped by the drug, his ears were ringing, he was [j]ust amuck to the tenth power, numb, crazy and hallucinogenic. He would not let Diana in the bedroom door because he did not want her to see him like th[at].

Suddenly, though, for no reason he could recall, he grabbed some powdered detergent, opened the door, and threw the detergent in Dianas eyes. He had the crack pipe in his left hand and a pipe-scraping knife in his right hand (over which he had a sock). He took the last hit from the pipe and put the knife to Dianas throat to convey like, be quiet. A struggle ensued, after which defendant remembered inflicting two to three of Dianas injuries, but nothing else. Defendant did not remember cutting Dianas throat twice.

Then defendant suddenly snapped out of it, realized what he had done, and stopped struggling. However, when Diana ran for the front door, he tried to stop her. He then panicked and fled.

Defendant denied that he intended to kill Diana. He also denied threatening Robert on the stairs, claiming he only told Robert to move. He abandoned Dianas car so he would not get caught. After his arrest, he told an interviewing detective that he had used crack the day of the stabbing, but he did not say he had smoked a Sherm or had drunk beer.

Discussion

1. Psychological Testimony

Defendant claims the trial court violated his constitutional right to an effective defense by excluding expert testimony from psychologist Wendy Weiss. Defendant wanted Dr. Weiss to testify on the effects of his use of crack cocaine and her diagnosis of his polysubstance dependence in support of his position that he did not have an intent to kill Diana. As noted, this intent is the mental state required for the attempted murder conviction. (See CALJIC No. 8.66.) We do not find the trial court erred.

The standard of review for a trial courts decision admitting or excluding the testimony of an expert witness, and ruling on an experts qualifications, is abuse of discretion. (People v. Mickey (1991) 54 Cal.3d 612, 687-688; People v. Chavez (1985) 39 Cal.3d 823, 828 (Chavez).)

The defense initially sought to have Dr. Weiss testify about the general effects of crack cocaine on a persons thought processes and about Weisss diagnosis of defendants polysubstance dependence, but eventually focused simply on the crack cocaine effects.

After an Evidence Code section 402 (section 402) admissibility hearing, the trial court excluded Dr. Weisss proposed testimony. ( 402, subd. (b).) The court determined that Dr. Weiss was not an expert on the physiological or pharmacological effects of crack cocaine or alcohol; and even if she were, the probative value of her proposed testimony was outweighed by its tendency to confuse or mislead.

On the issue of Dr. Weisss qualifications as an expert, the section 402 hearing disclosed that the doctor was an expert in forensic mental health, [i.e.,] evaluating individuals who suffer from some type of mental illness, or evaluating individuals to determine if they suffer from some type of mental illness which may affect their criminal behavior, as well as . . . suitability [of persons] to work as peace officers. Defense counsel noted at this hearing that defendant would not be raising any sort of mental defect or disease defense.

In the course of Dr. Weisss work and career, she had c[o]me across issues of substance abuse extensively, but generally; she had to educate herself on the subject given its prevalence; and she had take[n] a class required for licensure [some 11 years before] regarding substance abuse.  When asked about the effects that crack cocaine would have on a persons mental abilities, Dr. Weiss testified: [I]ndividuals . . . have a very quick response, generally a quick high that they get. They may demonstrate symptoms including euphoria, depression, perhaps, coming down from the use of the drug. They may be agitated, or they may not. [T]here are a lot of variables that go into whether somebody will have particular reactions. Sleeplessness may occur. [] . . . []  Different individuals may respond to the drug in different ways, depending on various personality characteristics; their background and history; how many times theyve used the drugs; how much of the drug theyre using; the quality of the drugs that theyre using. Some people who abuse the drug long-term may develop types of more psychotic-like symptoms, hallucinations. . . . Some paranoia or hypervigilance [may result]. When asked about the influence of crack on brain chemistry, Dr. Weiss replied: I cant tell you about the brain chemistry. And when asked whether she had any experience dealing with people who use crack cocaine and alcohol together, Dr. Weiss answered: Im sure that I have evaluated people, and people have told me, that theyve used crack and theyve used alcohol.

We conclude the trial court did not abuse its discretion in determining that Dr. Weiss was not an expert on the effects of crack cocaine and alcohol on a persons thought processes. [A]n experts qualifications must be related to the particular subject upon which [s]he is giving expert testimony. Qualifications on related subject matter are insufficient. [Citations.] (Chavez, supra, 39 Cal.3d at p. 828, quoting People v. Hogan (1982) 31 Cal.3d 815, 852.)

The section 402 hearing disclosed substantial evidence showing that Dr. Weiss was not an expert on the effects of crack cocaine or alcohol use on thought processes. Dr. Weisss expertise lay in mental illness evaluation, but the defense was not proffering such illness. In the course of her evaluative work, Dr. Weiss came across substance abuse extensively, but only generally, and she had to educate herself on the subject. Her testimony on the effects of crack cocaine use demonstrated these facts. That testimony was mostly a hodgepodge of possible effects that lacked precision and scientific rigor. More importantly, the testimony was not tied to the mental state at issue--an intent to kill.

Dr. Weisss testimony can be contrasted with that of the admissible expert opinion characterized in People v. Coddington (2000) 23 Cal.4th 529, upon which defendant relies. The Coddington court concluded that an experts opinion that a form of mental illness can lead to impulsive behavior is relevant to the existence [or not] of the mental states of premeditation and deliberation, notwithstanding the statutory limitations on admission of evidence of mental illness set forth in sections 28 and 29. (Coddington, supra, at pp. 582-583.) Sections 28 and 29, Coddington noted, permit introduction of evidence of mental illness when relevant to whether a defendant actually formed a mental state that is an element of a charged offense, but do not permit an expert to offer an opinion on whether a defendant had the mental capacity to form a specific mental state or whether the defendant actually harbored such a mental state. (Id. at p. 582.)

Largely for these same reasons, the trial court also did not abuse its discretion in concluding that the probative value of Dr. Weisss testimony was outweighed by its potential for confusing or misleading the jury.

2. Prosecutorial Comments and Mistrial

At the close of the prosecutors cross-examination of defendant, the following exchange took place:

Q. [Prosecutor]: How many times have you talked with the public defender about this case?

[Defense Counsel]: Objection.

The Court: Sustained.

Q. [Prosecutor]: Do you have a script that youre going off of today in terms of questions?

A. No, not at all. Im nervous up here.

Q. Okay. Did the public defender tell you how to testify in this matter?

[Defense Counsel]: Objection, your Honor. May we approach?

The Court: Please approach.

(Sidebar conference.)

The Court: Sustained.

[Prosecutor]: Your Honor, I have no further questions of [defendant].

Defendant contends the trial court erroneously denied his motion for mistrial based on prosecutorial misconduct concerning this exchange. Defendant argues that the prosecutor insinuated that defense counsel suborned perjury. We disagree that the trial court erred.

Prosecutorial misconduct violates the federal Constitution if it constitutes a pattern of misconduct so egregious that it renders the trial fundamentally unfair. (People v. Ayala (2000) 23 Cal.4th 225, 283-284 (Ayala).) Under California law, a prosecutor commits misconduct if he or she uses deceptive or reprehensible methods to attempt to persuade the jury. (Id. at p. 284.) The prosecutors challenged conduct here did not approach the federal constitutional standard, but did contain a bit of deception or reprehensibility.

However, the trial court did not err in denying defendants motion for mistrial. A ruling on a motion for mistrial is reviewed for abuse of discretion, and such a motion should be granted only when a partys chances of receiving a fair trial have been irreparably damaged. (Ayala, supra, 23 Cal.4th at p. 283; accord, People v. Avila (2006) 38 Cal.4th 491, 573 (Avila).) Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. (Avila, supra, at p. 573, quoting People v. Haskett (1982) 30 Cal.3d 841, 854.)

We agree with the following comments from the trial court in denying the motion for mistrial, and conclude the court acted well within its discretion: . . . [T]he motion for mistrial is denied. [] I sustained [the defenses] objections to the questions . . . . [] . . . []  My judgment is that there is no prejudice whatsoever as a consequence of the asking of the questions. I think its unfortunate that they were asked, but it doesnt in any respect prejudice [defendant]. [] The jury certainly appreciates that [defendant] is entitled to talk to his lawyer. And there was no revelation whatever of any substance of any of those discussions. And just the asking of whether he was scripted does not do more than simply put the question out there. Theres no suggestion that he was. The trial court offered to provide a limiting instruction or some sort of admonishment, but that was deemed unnecessary.

The only thing we can add is that the jury was also instructed not to consider questions as evidence. As the jury was told, If an objection was sustained to a question, do not guess what the answer might have been. Do not speculate as to the reason for the objection. [] Do not assume to be true any insinuation suggested by a question asked a witness. A question is not evidence and may be considered only as it helps you to understand the answer. (CALJIC No. 1.02.)

3. Conflict Counsel

In 2000, defendant pleaded guilty to a carjacking charge. ( 215, subd. (a).) In the present proceedings, this prior conviction was found to be a strike under the Three Strikes law for sentencing purposes. This resulted in defendants sentence on his attempted murder conviction being doubled from nine to 18 years.

In a pretrial motion, defense counsel (the public defenders office) moved to strike this prior carjacking conviction, as a strike, on various grounds, including that defendant was not properly informed during his plea proceeding about the status of a carjacking conviction as a strike under the Three Strikes law. Since defendant had been represented during his carjacking plea by the same public defenders office that was now representing him in the present case, his lawyer asked the court to appoint independent counsel to explore whether there was a viable claim of ineffective assistance of counsel for the advice, or lack thereof, given at the time of the carjacking plea.

The trial court concluded that this ineffective assistance contention could be addressed in a habeas corpus writ by appellate counsel. We agree. But appellate counsel here did not move to expand her appointment to include pursuing this habeas corpus writ. As the People note, the record on appeal is inadequate to resolve whether prior defense counsels advice as to the carjacking plea compromised the trial courts ability to use the carjacking conviction as a strike under the Three Strikes law. A habeas corpus proceeding can resolve this issue, and, if necessary, that resolution can be applied in an appropriate resentencing hearing.

4. Attorney Fee Order

Defendant contends the trial court erred in ordering him pursuant to section 987.8 to reimburse $2,440 to the county for the cost of his public defender. Defendant argues the court erred procedurally and that the reimbursement order is not supported by substantial evidence. We agree and remand.

Section 987.8, subdivision (b), provides as pertinent: In any case in which a defendant is provided legal assistance . . . through the public defender . . . , the court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost thereof. . . . The court may, in its discretion, order the defendant to appear before a county officer designated by the court to make an inquiry into the ability of the defendant to pay all or a portion of the legal assistance provided.

At sentencing, the trial court ruled: . . . Im determining that the cost of your legal assistance is $2,440. Im going to order you to pay that amount subject to a finding by the Department of Revenue Recovery regarding your ability to pay. If you are able to pay that you will have to pay that. In any case that will be paid after all [the] other [ordered] amounts are paid.^[2]

Preliminarily, we reject the Peoples argument that defendant has forfeited this contention by failing to raise it in the trial court. We agree with the court in People v. Viray (2005) 134 Cal.App.4th 1186 that a forfeiture cannot properly be predicated on the failure of [defense counsel] to challenge an order concerning his own fees, given the patent conflict of interest. (Viray, supra, 134 Cal.App.4th at p. 1215, italics in original.)

Turning to the merits, Proceedings [under section 987.8] to assess attorneys fees against a criminal defendant involve the taking of property, and therefore require due process of law, including notice and a hearing [this hearing may take place at the sentencing hearing]. [Citations.] . . . Under the statute, a court may order a defendant, who has the ability to pay, to reimburse the county for the costs of legal representation. However, the defendant must be given notice and afforded specific procedural rights, including the right to present witnesses at the hearing and to confront and cross-examine adverse witnesses. [Citations.] The statute also requires the court to advise a defendant--prior to the furnishing of legal counsel--of his potential liability for the costs of court-appointed counsel. ( 987.[8], subd. (f).) (People v. Phillips (1994) 25 Cal.App.4th 62, 72-73 (Phillips).)

The record shows that defendant was given adequate notice of the reimbursement issue. The trial court advised defendant, at his arraignment, about the reimbursement of attorney fees pursuant to section 987.8, and the probation report recommended that defendant pay attorney fees, if appropriate. (Phillips, supra, 25 Cal.App.4th at pp. 66, 73-75 [concluding that a probation report that recommended that defendant pay attorney fees (if appropriate) constituted sufficient notice].)

However, the record does not show that defendant was given an opportunity to challenge the amount of reimbursement ordered, and there is no evidence in the record supporting that amount. The trial court simply determin[ed] that the cost of [defendants] legal assistance [was] $2,440--that was it; (had the trial court properly determined the amount of reimbursement, its delegation to the Department of Revenue Recovery to determine defendants ability to pay all or part of that amount would have been proper-- 987.8, subd. (b)). As in Viray, then, the amount of the reimbursement order here is entirely unsupported by evidence and has been allowed without opposition. (Viray, supra, 134 Cal.App.4th at p. 1217.) Therefore, we must reverse the order and remand this matter to the trial court (on remand, though, the trial court, if it chooses, need not pursue this matter any further given the additional public funds that would be expended for what the People concede is a fruitless pursuit). (See Viray, supra, 134 Cal.App.4th at pp. 1217-1219; see also Phillips, supra, 25 Cal.App.4th at p. 76 [noting that the purpose of section 987.8 is to conserve the public fisc, and that requiring separate hearings under that section would simply cost additional public funds]; 987.8, subd. (g)(2)(B) [setting forth a presumption that a defendant sentenced to prison does not have the ability to reimburse defense costs]; compare People v. Flores(2003) 30 Cal.4th 1059, 1068-1069.) The trial court is directed to send an amended abstract of judgment to the Department of Corrections and Rehabilitation reflecting the resolution of this matter.

5. Upper Terms

Defendant contends the trial judge violated his jury trial and related due process rights under Apprendi-Blakely-Cunningham^[3]by imposing the upper terms for the attempted murder and the great bodily injury enhancement based on facts not found by a jury.

The trial judge sentenced defendant to these upper terms based on several aggravating factors and an absence of mitigating ones. The aggravating factors included that defendants prior adult convictions were numerous and of increasing seriousness.

Preliminarily, we reject the Peoples claim that defendant has forfeited this jury trial contention by failing to raise it in the trial court. The Peoples claim fails because People v. Black (2005) 35 Cal.4th 1238 (Black I)--which had held that the sentencing law under which defendant was sentenced did not violate the federal constitutional right to a jury trial (and which was overruled by Cunningham)--was in effect at the time of defendants sentencing; therefore, any such objection would have been futile. (People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4.)

As for the merits of defendants contention, the California Supreme Court recently ruled in People v. Black (2007) 41 Cal.4th 799 (Black II) that imposition of [an] upper term does not infringe upon [a] defendants constitutional right to jury trial [under Apprendi-Blakely-Cunningham] so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions. (Black II, supra, 41 Cal.4th at p. 816.) This is because [u]nder Californias determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make [a] defendant eligible for the upper term. [Citation.] Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not legally entitled to the middle term sentence, and the upper term sentence is the statutory maximum. (Id. at p. 813.) And it is only when a sentence goes above the statutory maximum that the Apprendi-Blakely-Cunningham rule is triggered, requiring a jury to determine sentencing facts; as Cunningham explained, the Federal Constitutions jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864], italics added; Apprendi, supra, 530 U.S. at p. 490.)

Here, the record discloses at least one legally sufficient aggravating circumstance that is justified based upon defendants record of prior convictions. The trial judge found the aggravating circumstances that defendant had numerous prior convictions (at least seven prior felony convictions), and that these convictions were of increasing seriousness. (See People v. Searle (1989) 213 Cal.App.3d 1091, 1098 [three prior convictions deemed numerous]; see also Black II, supra, 41 Cal.4th at p. 818 [citing with approval this conclusion of Searle]; Cal. Rules of Court, rule 4.421(b)(2) [defining an aggravating circumstance as including prior convictions that are either numerous or of increasing seriousness].)

As the Black II court stated, the determinations whether a defendant has suffered prior convictions, and whether those convictions are numerous or of increasing seriousness (Cal. Rules of Court, rule 4.421(b)(2)), require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. This type of determination is quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court. (Black II, supra, 41 Cal.4th at pp. 819-820; see id. at pp. 818-819.)

Consequently, under Black II, the trial judges imposition of the upper terms did not violate defendants constitutional right to jury trial (and related due process rights) under Apprendi-Blakely-Cunningham.

Disposition

Defendants request to take judicial notice of the superior court docket is denied. The judgment is affirmed in all respects but one: the attorney fee reimbursement order is reversed, and that matter is remanded as discussed in part 4 of this opinion. The trial court is directed to prepare an amended abstract of judgment reflecting the resolution of this matter and to forward a certified copy of the abstract to the Department of Corrections and Rehabilitation. The trial court is also directed to appoint nonconflicted counsel to represent defendant in a habeas corpus proceeding on the issue of whether prior defense counsels advice and representation involving defendants 2000 carjacking plea compromised the trial courts ability to use the carjacking conviction as a strike under the Three Strikes law.

DAVIS , J.

We concur:

SIMS , Acting P.J.

HULL, J.

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^[1] Hereafter, undesignated section references are to the Penal Code unless otherwise noted.

^[2] We decline defendants suggestion to take judicial notice that the trial court did not take any other actions on the ruling.

^[3]Apprendi v. New Jersey(2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi), Blakely v. Washington(2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely) and Cunningham v. California(2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham)