P. v. Hutton

Filed 10/16/07 P. v. Hutton CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. John I. Kelly, Judge.

Paul L. Gabbert and Gary D. Sowards, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Angelo S. Edralin, Deputy Attorneys General, for Plaintiff and Respondent.

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In 1995, Brandon Jason Hutton (defendant) pled guilty to committing a lewd and lascivious act on a child under the age of 14 (Pen. Code,^[1] 288, subd. (a)) and was sentenced to three years of probation. In 2006, defendant petitioned for a writ of error coram nobis to set aside his conviction on the ground he was insane at the time of his 1995 plea. The trial court denied the petition. Defendant appeals, claiming the trial court erred in denying his request for coram nobis relief. We affirm, concluding the trial court did not abuse its discretion in denying defendants coram nobis petition because defendant failed to show the facts upon which he relies were not known to him and could not in the exercise of due diligence have been discovered by him earlier. We also grant defendants request for judicial notice.

FACTUAL AND PROCEDURAL BACKGROUND

In August 1993, defendant sustained massive head injuries in a single vehicle rollover accident. After the accident, defendant was comatose. Doctors diagnosed defendant as brain dead, and sought his fathers permission to discontinue life support. His father refused, and despite a poor prognosis, defendant began to recover from his coma 72 hours later. Staff at the medical center described defendant as the miracle patient that year.

Defendant resided in a rehabilitation facility for the next several months. The effects of his head injuries made him like an infant again. He could not walk, talk, use the bathroom, feed himself, or do anything a normal child could do. In November 1993, defendants father brought defendant home to live with him, his stepmother, and 12-year-old stepbrother. Defendant was in his early 20s, but his family observed that he seemed like a child. Defendants father helped teach him to walk again and his stepbrother taught him to ride a bicycle. Defendants father described the situation as being like having a mentally retarded child.

Defendants family observed that defendants head injuries impaired both his short term and long term memory. When his family asked defendant about past events, he was unable to recall them but eventually began to repeat what they told him. Defendant was eager to please his father, a former military man who ran a strict household. His stepmother and stepbrother observed that defendant tended to do or say whatever his father wanted him to. Defendant also had difficulty listening to and following conversations, particularly if more than two people were speaking. He would become very agitated and leave the room.

Defendant, who was divorced, had a three-year-old son that his ex-wife would bring over to be babysat by defendants father and stepmother. Defendant was only able to spend short periods of time with the child before defendant would become agitated. Defendants stepmother warned defendants ex-wife not to leave the child at their home if she or defendants father were not there because defendant was unable to take care of the child by himself. Over time, defendants ex-wife brought the child around less and less.

In February 1995, defendants ex-wife alleged that defendant had sexually abused the child. Defendants stepmother did not believe the allegations. She thought defendant later pled guilty because his father told him to. She described defendants father as being at his wits end about the whole situation and wanting to get the whole thing over with.

Defendants father stated that when he heard about the allegations of child abuse, he was just sick to think defendant could have done that. However, he knew that if it had happened, it was because of defendants head injuries. Defendants father explained that during the rehabilitation program, he was told that defendant might do things that were completely out of character, such as relieving himself in public or attacking his family members with knives. After hearing the allegations from defendants ex-wife, defendants father confronted defendant and asked if he had done something to the boy. Defendant started to get agitated, and then lowered his head and mumbled, Im sorry dad.

Defendant was arrested for continuous sexual abuse of a child ( 288.5, subd. (a)) on February 16, 1995. A police report from that date reflects that a police detective tried to speak with the three-year-old boy about the allegations but was unable to obtain any information due to the childs young age. However, the probable cause section of the sheriffs arrest report reflects that defendant admitted to the offense, which the report reflects was based on four occasions between October 1994 and January 1995, when defendant allegedly masturbated in front of his son and orally copulated him.

When defendant was arrested, his stepmother warned the arresting officers to be careful with him because he suffered from brain damage.

On February 28, 1995, in a complaint filed by the District Attorney of Kern County, defendant was charged with one count of continuous sexual abuse of a child and four counts of lewd and lascivious acts on a child under the age of 14. It was further alleged as to each count that defendant had substantial sexual conduct with the victim who was under the age of 11 within the meaning of section 1203.066, subdivision (a)(8).

On March 14, 1995, defendant pled guilty to one count of violating section 288, subdivision (a), and the remaining charges and allegations were dismissed. Before entering the plea, defendant was advised, among other things, that he would be required to register as a sex offender under section 290.

After accepting defendants guilty plea, the court appointed S. Miles Estner, M.D., a psychiatrist, to evaluate defendants suitability for probation under section 288.1. In his report, Dr. Estner concluded that defendant was a suitable candidate for probation, explaining in part:

Defendant] is not a Pedophile, per se, and does not have any other identifiable sexual perversion to account for his inappropriate behavior.

He is recovering from severe head trauma incurred in a 1993 auto accident. [Defendant] was in a coma for 3 months, and is still undergoing physical and cognitive rehabilitation. His parents were warned that he might be inappropriately sexual or violent during the recovery period. Luckily, he has not been violent, but unfortunately he has been sexually inappropriate. [] []

The inappropriate sexual acts with the victim are related to [defendants] disinhibition following head trauma, not because he is psychosexually disordered. This substantially improves his prognosis for rehabilitation. [] []

There is also information which indicates that [defendants] judgment is improving and he is less disinhibited, i.e., his brain damage is not a fixed, irreversible deficit. This additionally supports his being a suitable candidate for rehabilitation.

On May 23, 1995, defendant was sentenced. He received a three-year term of probation. Defendant successfully completed his probation, which was ordered terminated on August 31, 1999.

On April 19, 2006, defendant filed a petition for writ of habeas corpus and/or writ of error coram nobis seeking to set aside his conviction on the ground he was insane at the time of his 1995 plea, and was therefore factually innocent and incapable of committing the offenses, and was unable to make a knowing, intelligent, and voluntary waiver of his constitutional rights.

In support of his petition, defendant provided declarations of his family members describing defendants 1993 car accident and the effects of his head injuries summarized above. Defendant also provided a recent declaration of Dr. Estner as well as the declaration of Eugene T. Couture, Ph.D., who performed a neuropsychological evaluation of defendant in 1995. The two medical experts reviewed various reports and evaluations regarding defendant and the transcripts of his plea and sentencing hearings. They generally opined that due to his head injuries from the car accident, defendant did not know or understand his legal rights, was not capable of understanding the nature of the charges against him or why his acts would have been wrong, and could not have rationally assisted his attorney in preparing a defense to the charges.

On August 29, 2006, the court denied defendants petition, finding that although defendant may have satisfied the first and third requirements for coram nobis relief, he had not satisfied the second; i.e., he had not shown that the newly discovered facts did not go to the merits of the case. Defendant appeals, challenging the courts order denying him relief under coram nobis.

DISCUSSION

A petition for writ of error coram nobis is equivalent to a motion to vacate the judgment, and is generally used to bring factual errors or omissions to the courts attention. (People v. Dubon (2001) 90 Cal.App.4th 944, 950.) Such factual errors include the situation where the defendant was insane at the time of trial and this fact was unknown to court and counsel . (Mendezv. Superior Court (2001) 87 Cal.App.4th 791, 798, fn. 2.)

The writ of coram nobis is granted only when three requirements are met. (1) Petitioner must show that some fact existed which, without any fault or negligence on his part, was not presented to the court at the trial on the merits, and which if presented would have prevented the rendition of the judgment. [Citations.] (2) Petitioner must also show that the newly discovered evidence ... [does not go] to the merits of issues tried; issues of fact, once adjudicated, even though incorrectly, cannot be reopened except on motion for new trial. [Citations.] This second requirement applies even though the evidence in question is not discovered until after the time for moving for a new trial has elapsed or the motion has been denied. [Citations.] (3) Petitioner must show that the facts upon which he relies were not known to him and could not in the exercise of due diligence have been discovered by him at any time substantially earlier than the time of his motion for the writ.... [Citations.] (People v. Shipman (1965) 62 Cal.2d 226, 230 (Shipman).)^[2]

In a coram nobis proceeding it is the petitioners burden to establish by clear and convincing evidence that the petitioner was deprived of a substantial right by some extrinsic cause. (People v. Tucker (1957) 154 Cal.App.2d 359, 362.) We review a trial courts denial of a petition for writ of error coram nobis for abuse of discretion. [Citation.] (People v. Dubon, supra, 90 Cal.App.4th at p. 951.)

Assuming a petition for writ of error coram nobis was the proper means for seeking relief in this case, we agree with the People that defendant has not met the third Shipman requirement, and therefore the trial court did not abuse its discretion in denying thepetition. The third requirement [under Shipman] has two parts. First, the facts upon which [defendant] relies must not have been known to [him] and second, could not, in the exercise of due diligence, have been discovered by [him] at any time substantially earlier than the [bringing of this] motion for the writ. (People v. Trantow (1986) 178 Cal.App.3d 842, 846.) [A] defendant who seeks to set aside the judgment on a petition for a writ of error coram nobis must allege the time and circumstances under which the new facts were discovered in order to demonstrate that he has proceeded with due diligence. [Citation]. (People v. Castaneda (1995) 37 Cal.App.4th 1612, 1619.)

Here, defendant fails to show the facts supporting his insanity claim were not known to him at the time of the entry of his guilty plea. According to the declarations presented in support of the coram nobis petition, the facts underlying the experts opinions that defendant was insane at the time of the 1995 plea were well known to all those around defendant at the time of his arrest for child abuse. Defendants father attributed any improper sexual behavior on defendants part to his head injuries. Defendants stepmother communicated to the arresting officers that defendant suffered from brain damage. Defendants parents also accompanied him to the court proceedings. In light of these circumstances, it is unlikely that defendants family did not apprise defense counsel of the circumstances surrounding defendants car accident, which at the time was still quite recent.

Notably, the public defender who represented defendant at the plea hearing does not aver in his declaration that he was unaware of defendants car accident or his head injuries. Instead, he asserts that the district attorneys office had a policy of expediting plea bargains in child sexual abuse cases, and that this policy generally prevented the public defenders office from having sufficient time to investigate potential defenses or order psychiatric evaluations in such cases. Assuming this was true, it does not establish that counsel was unaware of the facts on which defendant now relies. In any case, defense counsel most certainly would have been put on notice of the pertinent facts after Dr. Estners evaluation on the question of defendants suitability for probation, which specifically linked defendants inappropriate sexual behavior to his head injuries, and set forth the same basic facts the doctor relied on over ten years later to render an opinion that defendant was insane at the time of the plea. Yet, despite Dr. Estners 1995 evaluation, defendant offered no evidence or compelling explanation in support of his coram nobis petition as to why defense counsel did not move to have defendants plea withdrawn or why he failed to seek relief from the judgment sooner.

Instead, defendants petition offers the following explanation, without any evidentiary support, of the events leading to the filing of his writ petition:

In late 2004, [defendants] guardian became aware of the fact and intrusive nature of the Penal Code section 290 registration requirement that was imposed pursuant to [defendants] guilty plea. In response to law enforcement efforts to include [defendants] name and other personal information on a nationwide, internet-accessible database, [defendants] guardian consulted a private attorney to determine the legal grounds for such action. Upon investigation of the criteria for inclusion in the database, counsel became aware of many of the facts set forth in this Petition including facts indicating the invalidity of [defendants] conviction. Further, timely and diligent investigation led to the discovery of the factual predicates for relief set forth below.

This explanation regarding the recent investigation into defendants sanity does not adequately justify the long delay in his seeking coram nobis relief, or demonstrate that defendant could not, with due diligence, have discovered the facts on which he now relies at a substantially earlier time than the bringing of his petition. The facts the private attorney became aware of, and which prompted his further investigation into the question of defendants sanity, were the same facts known to defense counsel and his family at the time of defendants plea. Throughout his argument on appeal, defendant appears to confuse the question of his discovery of the facts with his discovery that the facts could potentially establish the legal status of insanity. The trial court similarly seemed to confuse these issues in finding that the third Shipman requirement had been met. Thus, the court reasoned: If Petitioner could not have presented his new facts until Drs. Estner and Couture executed their declarations, and the doctors did not execute the declarations until 2005, then he could not have presented his new facts earlier.

There was simply no showing as to why defendant was unable to seek evaluations on the question of his sanity sooner given that he has been required since the entry of his plea to register as a sex offender under section 290, the event that allegedly triggered the new attorneys investigation, and Dr. Estners 1995 evaluation, which made a direct link between defendants sexual misconduct and his head injuries. In Dr. Estners 2005 declaration, he essentially says that if he had been asked at the time he evaluated defendant for his suitability of probation, whether defendant was mentally competent at the time of his plea, he would have rendered the opinion that defendant was mentally incompetent, thus highlighting the psychiatrist was relying on essentially the same facts that were available and known to him, defendants family, and counsel in 1995. Indeed, Dr. Estner notes in his 2005 declaration that, in 1995, defendant appeared to be an extremely nave, cognitively impaired individual whose mental impairments would have been obvious even to lay observers. (Italics added.) In their 2005 declarations, Dr. Couture and Dr. Estner both grounded their assessment of defendant on a number of factors which were observed by defendants family members in 1995, and described in their declarations, including his severe memory impairment, childlike intellectual capacity, difficulty processing information, distractibility and inattention during conversations with others, and a tendency to confabulate (i.e., unconsciously adopt or fill in false memories of entire events or the details of events).

Our analysis in People v. Brady (1973) 30 Cal.App.3d 81as to why the defendant there failed to meet the third requirement for coram nobis relief is instructive:

Petitioner has not presented a single fact which was not known to the trial judge or to petitioners trial counsel at the time of trial. Neither is there anything in the record to suggest that petitioner acted with due diligence after his convictions. On the contrary, petitioners low rating on the intelligence scale was known from the very beginning to petitioner, his trial counsel and to the attorney who represented petitioner on his three appeals; yet, this proceeding was not instituted until almost two years after petitioners third conviction.

The case of People v. Welch [(1964)] 61 Cal.2d 786, is distinguishable. In Welch the defendant, who also had a low I.Q., had told the doctor who examined him before trial that his medical history included only the usual childhood diseases and an appendectomy; there was no indication of past or present mental aberrations. Two months after defendants conviction he was given electro-encephalographic examinations at San Quentin, and those examinations disclosed that he had brain damage. It was then discovered that the brain damage had been sustained from an attac[k] of encephalitis when defendant was five years old. The court properly concluded that neither defendant nor his trial counsel knew or could have known of this condition at the time of trial. In addition, while the defendant in Welch did not petition for the writ until more than one year after he learned of the brain damage, he spent the intervening period bolstering his case and filling in the gaps of his medical history; the court held that this conduct demonstrated due diligence.

We sympathize with counsels statement that petitioner should not be faulted for his failure to present timely the present sanity issue; if petitioner was unable to understand the nature of his criminal trials, or assist his counsel in his defense, he hardly could be expected to raise the issue at the time of trial or to proceed with reasonable diligence after he was convicted. We hold, merely, that in claiming that his client may have been insane at the time of his trials, counsel does not offer any evidence which was not known to the petitioner or trial attorneys at the time of trial, in order to bring the petition within the purview of the Shipman rule. (People v. Brady, supra, 30 Cal.App.3d at pp. 86-87.)

Similarly, in this case, there is no evidence that at the time he entered his guilty plea, defendants recent car accident and the effects of his head injuries were not known to defendant or defense counsel. Nor has defendant shown he acted with due diligence in waiting more than 10 years to file his petition for coram nobis relief.

Because defendant did not meet the third Shipman requirement for coram nobis relief, we do not address his other arguments, including that the trial court misapplied the first and second Shipman factors. An appellate court reviews judicial action, not judicial reasoning. (People v. Franklin (2003) 105 Cal.App.4th 532, 535; see also People v. Zapien (1993) 4 Cal.4th 929, 976.) Therefore, the rationale invoked by the trial court for denying defendants petition is not relevant to our conclusion that the petition was without merit. The trial court did not abuse its discretion in denying the petition.

DISPOSITION

Defendants request for judicial notice filed November 2, 2006, is granted. The order denying defendantspetition for writ of error coram nobis is affirmed.

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HILL, J.

WE CONCUR:

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HARRIS, Acting P.J.

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KANE, J.

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^[1] Further statutory references are to the Penal Code unless otherwise specified.

^[2] Insertions added by this court are placed in brackets and italicized to distinguish them from the bracketed insertion appearing in the original material.