P. v. Tran
Filed 1/29/13 P. v. Tran CA4/3
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opinion has not been certified for publication or ordered published for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
FOURTH
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
SON KIM TRAN,
Defendant and Appellant.
G045302
(Super. Ct. No. 09CF2429)
O P I N I O N
Appeal from a judgment
of the Superior Court
of
County, Carla
M.
Singer and Lance Jensen, Judges.
Affirmed.
Lizabeth Weis, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, James D. Dutton and Alana Cohen Butler,
Deputy Attorneys General, for Plaintiff and Respondent.
Upon being convicted of
rape, appellant Son Kim Tran was sentenced to 55 years to life in
prison. He contends he was incompetent
to stand trial and there is insufficient evidence to support his kidnapping
conviction, but we disagree and affirm the judgment.
FACTS
In
September 2009, Patricia H. was 57 years old and destitute. Like many homeless people in Santa
Ana, including appellant, she spent much of her time
around the Civic Center
Plaza. Patricia had seen appellant in that area from
time to time, but until the night of September
29, 2009 she had never talked to him.
That
evening, Patricia was eating on the grass near Ross
Street when appellant came over to her with his
dinner and said, “Are we having a meal?
Yes, we’re having a meal.†He then
asked Patricia for a cigarette and sat down next to her. Although Patricia wasn’t expecting
appellant’s company, she gave him some cigarette butts and they ate
together.
When
it began getting dark, Patricia walked over to a nearby bench to get her cart
and gather her belongings. She then sat
down on the bench and appellant joined her there. To her surprise and dismay, appellant
suddenly started rubbing up to her and talking “nasty.†He told her he wanted to have sex, but she
said she did not want to. She then got
up from the bench and began walking with her cart toward Broadway. She was moving quickly, trying to get away
from appellant, but he followed her and kept putting his hands on her neck and
shoulder. He also kept telling her, as
well as other people in the area, that he wanted to have sex with her.
Patricia
made her way from Broadway to Civic Center Drive. When she reached the Old Orange County
Courthouse, appellant grabbed her by the shoulders and pulled her away from her
cart. He took her from the sidewalk on Civic
Center to a more secluded grassy
area that is bordered by a parking lot on one side and some bushes and a
three-foot retaining wall on the other.
Then he threw her to the ground, jumped on her and told her he was going
to rape and kill her. As he was holding
her down, he started tugging at her pants and thrusting his pelvis against her
body. He also tried to unhitch his own
belt, but he wasn’t able to lower his pants more than a few inches before a
Good Samaritan came to Patricia’s aid.
Refugio
Hernandez had been talking with some friends in the area when he saw appellant
pull Patricia away from her cart. When
he biked over to see what was going on, he saw appellant holding Patricia on
the ground. He asked what was going on,
and after getting to his feet and pulling up his pants, appellant insisted
everything was fine. However, Patricia
said she needed help because appellant was trying to rape her. At that point, appellant took a step toward
Hernandez, but Hernandez unfurled a bike chain he was holding, and appellant
turned and walked away. Hernandez then
called 911 and followed appellant across the street. When appellant noticed Hernandez was tailing
him, he turned to him and said, “You better leave or you’re going to die.â€
Within
minutes, Santa Ana Police Officer Adam Aloyian was on the scene. When appellant saw him, he took off running,
but Aloyian cornered him in a stairway, and he eventually surrendered. Appellant was cooperative when Aloyian
initially handcuffed him. However, as he
was being led away to a police car, he began ranting and raving about how he
was going to “break [Aloyian’s] fucking back†and “fucking kill†him.
After
appellant was taken away, Aloyian turned his attention to Patricia, who,
according to Aloyian, looked battered, fearful and “utterly broken.†She told Aloyian that as she and appellant
were walking near the Old Orange County Courthouse, he pulled her away from her
cart and tried to rape her in a grassy area near some bushes. Aloyian walked out the distance from
Patricia’s cart to the grassy area, and it turned out to be about 18 to 20
feet. He did not believe the grassy area
would have been visible to the drivers on Civic
Center or most of the pedestrians
in the area.
At
the police station, Aloyian interviewed appellant about the incident. When Aloyian asked him if he knew why he was
in custody, appellant said, “Because I threw that bitch on the ground.†Asked why he did it, appellant said it was
because Patricia wouldn’t give him a cigarette.
He also suggested the incident was related to the fact he was a
registered sex offender. Appellant told
Aloyian he had recently gone to the Sheriff’s Department to register, and they
made him wear an orange jumpsuit when they photographed him. Appellant told Aloyian that this violated his
civil rights and that ever since then, he had begun doing “weird things.†He admitted, as well, that he had a long
history of mental illness and that he couldn’t control himself around
women. When Aloyian asked him what he
would have done to Patricia if he hadn’t been stopped, he said “the
worst.†Asked if that meant raping and
killing her, he replied “yes.â€
Appellant
was charged with kidnapping with the intent to rape, assault with the intent to
rape and making a criminal threat. (Pen.
Code, §§ 209, subd. (b)(1), 220,
subd. (a), 422.)
title="">[1] It was also alleged he was a
law and had suffered two prior serious felony convictions within the meaning of
the Three Strikes law. (§§ 667.71, subd. (a), 667, subds. (d)
& (e)(1).)
Before trial, defense
counsel expressed concern about appellant’s ability to assist him in presenting
a defense. The court conducted a hearing
on the issue and determined appellant was competent to stand trial.
At
trial, the sole defense witness was psychiatrist Ernest Klatte. Dr. Klatte opined appellant suffers from
schizoaffective disorder, which interferes with his sense of reality and
perception of events. Dr. Klatte said
the disorder is also known to cause impulsive behavior, and considering his
condition, appellant probably did not fully understand what he was doing when
he attacked Patricia.
The jury found appellant
guilty of the kidnapping and assault charges but was unable to reach a verdict
on the criminal threats charge, and that charge was later dismissed. After finding the One Strike and Three Strike
allegations true, the court sentenced appellant to 55 years to life in
prison.
I
Appellant argues there
is insufficient evidence to support
the trial court’s finding he was competent to stand trial. In so arguing, appellant references not only
the evidence that was generated in connection with the competency hearing, but
other evidence and events that transpired during the course of the pretrial
proceedings. He submits that even if the
trial court’s initial competency finding was correct, the court should have revisited
the issue and found him incompetent based on all of the information it
had. We find appellant’s arguments
unavailing.
Appellant’s mental state
was an issue throughout the case. During
pretrial proceedings, defense counsel informed the court he wanted appellant to
plead not guilty by reason of insanity, but appellant did not want to go to a
mental hospital, so he insisted on pleading not guilty. However, in light of defense counsel’s
concerns about appellant’s competency, the court suspended proceedings and
appointed Drs. Veronica Thomas and Ted Greenzang to evaluate appellant. They both concluded that, although appellant
has a long history of mental illness, he was competent to stand trial.
Their reports revealed
that appellant was born in Vietnam in 1970 and was adopted by an Orange County family when he was five years old. After dropping out of high school, he became
involved with drugs and alcohol and became increasingly paranoid and
delusional. In 1996, at the age of 25,
he began receiving treatment for schizophrenia.
And in 2000, he was sentenced to prison for committing rape. While incarcerated, he was diagnosed as a
mentally disordered offender, and when his prison term expired in 2006, he was
committed to Atascadero State Mental Hospital. He
was released from Atascadero in August 2009, a month before the present
case arose.
Dr. Thomas reported that
when she interviewed appellant in jail, he was alert and oriented to person,
place and date. He appeared to understand
the purpose of the interview and the seriousness of his case. He also said he trusted his attorney, would
listen to him in court and could remember what happened on the night of the
charged offenses. Explaining his
conduct, he said he was sensing vibrations and hearing voices that were telling
him to act. He also said it is not
uncommon for him to hear voices and have visions, which he described as a
“spiritual problem.†However, appellant
said he had been taking Depakote and Risperdal while in jail. And even though he still hears voices in his
head, he is not troubled by them. In
fact, he reported that when he is taking his medication, his symptoms are much
more in the background and do not interfere with his understanding of what is
going on around him. Although appellant
exhibited some “bizarre logic and loose associations†during the interview, Dr.
Thomas believed he was “psychiatrically stable†and “presently able to engage
in a rational and meaningful relationship with his attorney for purposes of his
defense.â€
Dr. Greenzang reached
the same conclusion after interviewing appellant. He diagnosed appellant with psychotic
disorder not otherwise specified, as well as alcohol abuse by history and
paranoid and schizoid personality traits.
However, during the interview, appellant exhibited reasonably good
attention and concentration and was able to express himself verbally. He appeared to have a general understanding
of the litigation process and said he could cooperate with his attorney. Regarding the night in question, he said he
drank a gallon of gin and was hearing voices in his head that were telling him
to attack Patricia; he admitted hitting her but denied trying to rape her. It was Dr. Greenzang’s opinion that appellant
still displayed some signs of residual paranoia, delusional thinking and mood
fluctuations. But he was confident
appellant understood the need to take his medication and was motivated to
so. He did not think appellant was
incompetent to stand trial.
Appellant’s competency
hearing took place in July 2010, six months after Drs. Thomas and Greenzang
interviewed him and prepared their reports.
At the hearing, Dr. Greenzang, the sole witness, testified that
appellant’s mental health record was “suggestive of schizophrenia,
paranoia type, or schizoaffective disorder.â€
He said these conditions are characterized by hallucinations and
delusional thinking but that those symptoms can be kept at bay through the use
of antipsychotic medications such as Risperdal.
On cross-examination, defense counsel told Dr. Greenzang that appellant
had written him some “really bizarre†letters, which he believed were
indicative of delusional thinking.
However, Dr. Greenzang remained confident that appellant was competent
to stand trial. Reaffirming the opinion
he rendered in his report, Dr. Greenzang concluded that despite appellant’s
lengthy history of psychiatric treatment, significant emotional problems and
continued need for treatment, he “had enough intact mental capacity to work appropriatelyâ€
with his attorney in presenting a defense.
The
trial court agreed. Based on the reports
and testimony offered on the issue, the court determined appellant had the
present ability to understand the charges against him and rationally consult with
his attorney. Accordingly, the court
adjudged him legally competent.
Nevertheless,
appellant’s trial did not commence for several more months, not until March
2011. On the eve of trial, appellant
unsuccessfully moved to suppress the statements he made to Officer Aloyian on
the grounds he did not voluntarily waive his right to remain silent. At the hearing on the issue, Aloyian admitted
appellant acted strangely and made some bizarre statements when he took him
into custody and interviewed him on the night in question. However, when asked if it appeared that
appellant was mentally ill, Aloyian answered, “I’m hard-pressed to use those
words ‘mentally ill’ because there could have been other reason[s] for some of
the stuff he said that didn’t . . . seem logical. It could have been drug abuse. It could have been alcohol. He could have been intoxicated. So I can’t say he seemed mentally ill.â€
After
the court denied appellant’s motion to suppress the statements he made to
Officer Aloyian, it held another hearing to address the parameters of Dr.
Klatte’s testimony for the defense. At
the hearing, Dr. Klatte testified about how schizophrenia affects a person’s
thought processes. Although he was
convinced appellant suffered from that disorder, he still believed, just as
Drs. Thomas and Greenzang did, that appellant was legally competent to stand
trial. Upon hearing that, defense
counsel moaned, “I can’t get any of you people to tell me [appellant’s] incompetent. You’re number three. But we’ll move on.â€
Before
the trial commenced, however, the court took up one other issue that surfaced
unexpectedly, that being appellant’s request for a new attorney. (See People
v. Marsden (1970) 2 Cal.3d 118.)
Appellant told the court he wasn’t happy with his appointed attorney and
he wanted a “state attorney†to represent him. Appellant said, “[I] want[] a state
attorney because my case is so serious that I feel that a state attorney can
really look into my options and give me a better perspective of things.†When asked if there was anything in
particular that he didn’t like about his present attorney, appellant said, “For
one, I have issues that may concern that.
It may be a civil/legal matter instead of a legal/civil matter because
of my status under liberal rights.†He
then said that while his attorney had spent a lot of time with him, he never
responded to the letters he had sent him.
Specifically, his attorney never responded to his concerns about “the
reports of [Wasco] having the age identity confirmed in their way that makes it
look like I was the one that confirmed it.â€
Appellant
also expressed displeasure over the fact his attorney believed he was mentally
ill. In the course of doing so,
appellant stated, “I’m in the status that now the presidency is democratic and
that is a public situation and it’s under a democratic rule. And myself, I have a name that bears a
California logo. And I need to be a republican
for the state in order for them to understand that I need a situation in a
court where they’re going to say, okay, there’s something in value that is not
making sense.â€
In
response to appellant’s comments, defense counsel told the court he had done
everything he could to represent appellant effectively, and if anything, appellant’s
remarks only served to bolster his claim that he was incompetent to stand
trial. Defense counsel also showed the
judge one of the letters that appellant had sent him, describing it as
“complete gibberish.†Borrowing a phrase
that Dr. Klatte had used in reference to appellant’s writings, the judge said
the letter was “neologistic,†meaning it was characterized by novel words and
phrases that are not in standard usage.
Nonetheless, the court was satisfied that defense counsel was
representing appellant competently and that there was no conflict of interest
between them. Therefore, it denied
appellant’s request for a new attorney.
The law is
clear: “A person cannot be tried or adjudged to punishment while mentally
incompetent. [Citation.]
A defendant is mentally incompetent if, as a result of a mental disorder
or developmental disability, he or she is unable to understand the nature of
the criminal proceedings or to assist counsel in the conduct of a defense in a
rational manner. [Citation.]†(People v. Lawley (2002) 27 Cal.4th 102, 131.) However, all criminal defendants are presumed
to be competent. (Ibid.) The burden rests on
the defense to prove by a preponderance of the evidence that the defendant is
mentally unfit to stand trial. (
On appeal, we indulge all reasonable
inferences in favor of the trial court’s ruling. (Ibid.) Will not disturb the court’s competency
finding if there is any substantial evidence, contradicted or not, to support it. (Ibid.;
People v. Frye (1998) 18 Cal.4th 894,
1004, disapproved on other grounds in People
v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Castro (2000) 78 Cal.App.4th 1402, 1418, disapproved on
other grounds in People v. Leonard
(2007) 40 Cal.4th 1370, 1389.)
Here, it is undisputed
that, although appellant suffers from a mental disorder, he understood the
nature of the proceedings. The only
point of contention is whether the record supports the trial court’s finding he
was able to rationally assist his attorney in presenting a defense. In arguing it doesn’t, appellant emphasizes
the fact Drs. Thomas and Greenzang examined him only one time each, in January
2010. Given that the competency hearing
did not take place until July 2010, appellant contends their opinions were “not
probative†of whether he was competent at that time. Appellant also argues that Dr. Klatte’s
pretrial testimony, coupled with his own remarks at the Marsden hearing, should have raised sufficient questions in the
court’s mind about his competence to warrant further examination of the
issue.
Drs. Thomas and
Greenzang may have only examined appellant once, but they were also aware of
his extensive history of psychiatric treatment, which dates back to 1996. They also knew about appellant’s criminal
background, his status as a mentally disordered offender and the circumstances
of the present offenses. And while their
evaluations of appellant predated the competency hearing by six months, defense
counsel never objected to their opinions on that basis. Even now, appellant fails to cite any
authority for his claim that the six-month time lag rendered their opinions
irrelevant. Contrary to appellant’s
assertions, we believe the opinions of Drs. Thomas and Greenzang had a logical
bearing on the issue of his competency to stand trial. The timing of their evaluations in relation
to the competency hearing is obviously a relevant consideration, but to our
minds, it goes to the weight, not the admissibility of their opinions.
As for appellant’s
contention that events following the competency hearing should have caused the
trial court to revisit the issue, we hasten to note that appellant’s own
expert, Dr. Klatte, testified on the eve of trial that appellant was competent
to stand trial. As defense counsel noted
at that time, that made it unanimous among the experts that appellant had the
mental capacity to rationally assist in his defense.
Later
on, during the Marsden hearing,
appellant did make some very strange remarks in stating his case against his
attorney. However, “[w]hen, as here, a
competency hearing has already been held and the defendant was found to be
competent to stand trial, a trial court is not required to conduct a second
competency hearing unless ‘it “is presented with a substantial change of
circumstances or with new evidenceâ€â€™ that gives rise to a ‘serious doubt’ about
the validity of the competency finding.
[Citation.] More is required than
just bizarre actions or statements by the defendant to raise a doubt of
competency. [Citation.]†(People
v. Marshall (1997) 15 Cal.4th 1, 33.)
We
do not believe the circumstances were such as to warrant a second competency
hearing in this case. Appellant’s
confused statements do reflect a certain amount of paranoia and confusion on
his part, which is consistent with the experts’ diagnosis of him, but they can
hardly be characterized as a change in circumstances. Appellant had been this way throughout the
proceedings against him. And it was up
to the trial court to appraise appellant’s conduct in light of all of the
circumstances presented. We give great
deference to the court’s assessment of the situation and decline appellant’s
invitation to second-guess its decision to hold but one competency hearing in
this case. (People v. Marshall, supra, 15 Cal.4th at p. 33;
372, 383.)
In challenging the trial
court’s competency finding, appellant also argues there is no specific and
credible evidence that he was capable of the sort of rational decision making
that is necessary to meaningfully assist in his defense. While the record shows appellant continues to
suffer the effects of his mental illness, there was evidence that he was
compliant with his medications and that they were effective for him. As Dr. Thomas noted, “When [appellant] is
taking his medicine, the psychotic symptoms are more in the background and do
not interfere with [his] understanding [of] what is going on in the
courtroom.†During his interviews,
appellant also exhibited an understanding of his predicament and the court
process, as well as the need to work with counsel. He told Dr. Greenzang he could cooperate with
his attorney, and Dr. Greenzang was confident appellant “had enough intact mental
capacity to work appropriately with counsel.â€
Given
all of the evidence that was adduced on the issue, and particularly considering
the complete consensus of expert opinion on this issue, we are convinced there
is substantial evidence to support the trial court’s determination that appellant
was legally competent to stand trial.
There is no basis to disturb the court’s finding in that regard.
II
Tran also
contends there is insufficient evidence of asportation to support his
kidnapping conviction. Again, we
disagree.
In reviewing the
sufficiency of the evidence to support a criminal conviction, we review the
entire record “‘to determine whether it discloses substantial evidence – that
is, evidence that is reasonable, credible, and of solid value – such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.’ [Citation.]†(People
v. Stuedemann (2007) 156 Cal.App.4th 1, 5.)
In so doing, we presume in support of the judgment the existence of
every fact the trier could reasonably deduce from evidence. (People
v. Kraft (2000) 23 Cal.4th 978, 1053.)
“If the circumstances reasonably
justify the trier of fact’s findings, reversal of the judgment is not warranted
simply because the circumstances might also reasonably be reconciled with a
contrary finding.†(People v. Albillar (2010) 51 Cal.4th 47, 60.)
Tran was
convicted of violating section 209, which provides that any person who kidnaps or carries away any
individual with the intent to commit rape shall be punished by imprisonment in
the state prison for life with the possibility of parole.
(§ 209.)
With respect to the asportation requirement, the statute states, “This
subdivision shall only apply if the movement of the victim is beyond that
merely incidental to the commission of, and increases the risk of harm to the
victim over and above that necessarily present in†the intended rape. (Ibid.)
Factors bearing on the
asportation element include the scope and nature of the movement and whether it decreased the likelihood of
detection, increased the danger inherent in a victim’s foreseeable attempts to
escape, or enhanced the defendant’s opportunity to commit additional
crimes. (
1141, 1151.) Although the actual
distance of the movement must also be considered, no
distance is required: “Measured distance
. . . is a relevant factor, but one that must be considered in context,
including the nature of the crime and its environment.†(Id.
at p. 1152) “Application of these
factors in any given case will necessarily depend on the particular facts and
context of the case.†(
In this case, appellant
moved Patricia only about 18 to 20 feet.
But “[w]here movement changes the victim’s environment, it does not have
to be great in distance to be substantial.â€
(People v. Shadden (2001) 93
Cal.App.4th 164, 169 [asportation element satisfied where defendant dragged a
store clerk nine feet from the front counter to a back room of the store where
she worked].) The record shows appellant
pulled Patricia from the sidewalk on Civic Center to a grassy area adjacent to
the parking lot of the Old Orange County Courthouse. According to photographic exhibits that were
admitted into evidence, the area is below street level and is separated from
the sidewalk by a retaining wall and a row of thick bushes. The area is visible from the parking lot, but
it is secluded from Civic Center Drive, which is where most of the activity in
that area would have been occurring at that hour of the night. As our Supreme Court has observed, the
movement need not be to an area that is totally enclosed to increase the risk
of harm to the victim. (
at p. 1153.)
The testimony confirmed
that appellant moved Patricia to an area where she was unlikely to be seen and
where appellant could further pursue his criminal ambitions. Hernandez testified he saw appellant take
Patricia from the sidewalk, around the retaining wall, and then behind the
bushes to the grassy area where the attempted rape occurred. Patricia would have been highly visible when
she was on the sidewalk. But, as Officer
Aloyian explained, once she was down in the grassy area behind the bushes, she
would have been largely out sight.
Aloyian was sure that drivers on Civic Center and pedestrians on the far
sidewalk would not have been able to see her.
And although he thought it might have been “possible†for pedestrians on
the sidewalk by the bushes to see her, Aloyian said that even if there had been
people in that area, he did not think they would have been able to see
her.
It
is thus clear that, in moving Patricia from the sidewalk to the bushes before
attempting to rape her, appellant changed her environment “from a relatively
open area alongside the road to a place significantly more secluded,
substantially decreasing the possibility of detection, escape or rescue.†(People
v. Dominguez, supra, 34 Cal.4th at p. 1153.) Under these circumstances, a reasonable jury
could find the asportation element was satisfied. (Ibid.) Therefore, we have no occasion to disturb the
jury’s finding in that regard. There is
substantial evidence in the record to support appellant’s conviction for
aggravated kidnapping.
The judgment is
affirmed.
BEDSWORTH,
J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
MOORE, J.
Code.
