Opinion
A152811
11-15-2018
THE PEOPLE, Plaintiff and Respondent, v. SHAVAR GILLIAM, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City and County Super. Ct. No. 17008964)
Appellant Shavar Gilliam appeals from the trial court's order revoking his parole. On appeal, he contends the court misunderstood and misapplied the concept of unconsciousness resulting from involuntary intoxication, which violated his constitutional right to due process. Although we reject this contention, we nevertheless conclude the court's finding that appellant was conscious was not supported by substantial evidence. Because the court therefore abused its discretion when it ordered appellant's probation revoked, we will reverse that order.
PROCEDURAL BACKGROUND
On June 23, 2016, appellant was paroled after serving approximately 24 years in prison following a first degree murder conviction.
On June 23, 2017, the California Department of Corrections and Rehabilitation (CDCR) filed a petition for revocation on the ground that appellant had committed two acts of battery and one act of resisting arrest, in violation of the condition of parole that he "not engage in conduct prohibited by law."
On October 18, 2017, following an evidentiary hearing, the court found that appellant had violated his parole on the grounds alleged in the petition, and revoked his parole. The court remanded appellant to the custody of the CDCR for the purpose of future parole consideration.
On October 31, 2017, appellant filed a notice of appeal.
FACTUAL BACKGROUND
Prosecution Case
Parole Agent Clinton Lugar testified that he began supervising appellant on June 23, 2016, when appellant was released on parole. Appellant lived at GEO Care transitional housing. Two conditions of his parole were that he remain in a transitional housing and sober living environment for a minimum of six months and that he not engage in criminal conduct.
Lugar had filed a prior petition to revoke parole approximately 30 to 45 days before the incident in the present case. The prior petition had alleged use of marijuana, destruction of evidence, and bringing contraband into a jail. After appellant admitted to using marijuana, the petition was dismissed and he returned to GEO Care.
Ralph Schwartz, a case manager at GEO Care, testified that on June 18, 2017, appellant was on lockdown at the facility, which meant he was not allowed to leave the facility without the program manager's permission. Around 2:00 p.m., Schwartz saw appellant in the sally port, an area where he was not supposed to be. He was walking toward the front door and trying to leave the facility. Appellant "seemed very angry and upset, kind of, like, outraged." Schwartz approached appellant and asked why he was so upset. Appellant became even angrier and Schwartz started to back away into the monitor station area to try to deescalate the situation. Appellant ran in behind Schwartz and assaulted him. Appellant pushed Schwartz from behind and he fell forward into some files. Appellant then punched Schwartz in the back six to eight times, yelling at the same time. After appellant stopped hitting him, Schwartz went to the phone. As he did so, he saw appellant grab Kym Smith, one of Schwartz's coworkers. Schwartz then saw two coworkers grab and restrain appellant while Schwartz called police. When the police arrived, they attempted to handcuff appellant, but he became enraged again and tried to resist by "not letting them have control of his arms to cuff him up."
The 911 call was played for the court. Schwartz described appellant as "cussing," "yelling," and "kind of screeching out in a way" during the call. During the call, Schwartz said he thought appellant might be on "spice," which is a synthetic marijuana.
Kym Smith, a Bureau of Prisons case manager at GEO Care, testified that when she heard "very loud yelling," she came over and saw appellant yelling at Schwartz. Appellant then lunged at Schwartz and grabbed him. Smith moved out of the area, but then came forward when she saw two staff members get appellant onto the ground. Appellant then slipped out of their hands, grabbed Smith around the waist, and punched her once or twice in the torso before another staff member helped get appellant off her.
San Francisco Police Officer Danielle Drago testified that when she and her partner responded to the scene at GEO Care, she saw multiple staff members trying to restrain appellant, who was on his stomach. Appellant's body was tense, and he was yelling and growling. Drago and her partner attempted to handcuff appellant. She ordered him to stop resisting, but he kept his arms at his side or above his head. It took at least a minute for the officers to force appellant's hands behind his back and place him in handcuffs.
Drago's partner was wearing a body camera; the video footage from the camera was played for the court.
Defense Case
Jason Carpenter, called as a witness for appellant, testified that he was the program director at GEO Care. Carpenter had known appellant since appellant began living there in June 2016. There had been no disciplinary issues or other problems with appellant before April 2017. Appellant had a job and was relatively easy going. Carpenter described a video that was played for the court, which was taken within an hour before appellant's arrest. It showed three people in a smoking area in an alley next to the GEO Care building. In the video, Carpenter was not able to identify appellant as one of the people in the smoking area, but was able to identify him when he was inside the lobby. Carpenter had seen appellant approximately 30 minutes before his arrest and he seemed fine.
Appellant testified that he had suffered two arrests while at GEO Care. The first time was for a dirty marijuana test, after which he spent 45 days in jail. The second time was the arrest in the present matter.
On June 18, 2017, the day of his arrest, appellant was on lockdown because Carpenter "didn't feel comfortable with me going out because if I went out and got high and committed a crime, he will be responsible." Appellant left his room that day and went downstairs to get lunch, but lunch was no longer being served. Appellant saw Carpenter and Schwartz downstairs. Carpenter told another employee to get a lunch for appellant, which appellant ate in the kitchen. He then went outside to the smoking area. He did not have any cigarettes, but was going to "bum" one from someone. There was no one there he could ask, so he sat down on a bench, picked up a Marlboro cigarette butt, and smoked it. He got two puffs from it and then looked around for another butt. Appellant found a longer hand-rolled cigarette butt and smoked it. The butt "[t]asted kind of funny," like "Indian tobacco."
Appellant pointed himself out and described his actions in the video footage of the smoking area that was previously played for the court.
Appellant then went to the lobby "and next thing I remember I was being hog tied." He had no memory of walking out the door into the sally port near the front door to the building. He did not recall challenging an employee named Kevin, yelling at or hitting Schwartz, or attacking Smith. Nor did he recall running into the office or how he got onto the ground. The first thing he could remember was being handcuffed, with the police talking to him.
Appellant had a friendly relationship with Schwartz and had had no problems with him before the day of his arrest. Appellant could think of no reason why he would have assaulted Schwartz or Smith. Appellant had heard of spice, but had never used it.
Martin Williams, a forensic psychologist, testified as an expert in drugs and substance abuse, and the effects on the user. Williams had heard of spice, which is a synthetic cannabinoid that can contain a hundred different possible chemicals. Spice, which is smoked and mimics the active ingredient of marijuana, is legal. Because of the various chemicals used in spice, it is very unpredictable and can cause psychosis, delirium, or even death. Delirium can have a rapid onset and involves mental confusion and perhaps extreme agitation. When suffering from delirium, "[y]our brain is very much impaired and you often don't know where you are, who you are, what you are doing." In addition, "[a] delirious person is usually someone who has been rational and then suddenly and quickly deteriorates, and often quickly improves afterwards." Williams believed that "anybody who's delirious is also unconscious."
Williams had met with appellant for two hours and found him to be pleasant, intelligent, rational, and honest. Williams listened to the recording of the 911 call, in which he could hear appellant "screaming and acting deranged in the background," which was consistent with hyperactive delirium. He also watched the police body camera video footage and believed appellant's behavior was consistent with hyperactive delirium, with him fighting and yelling like an animal. Then, as the delirium tapered off, he became more verbal, speaking in words. In Williams's opinion, appellant was not aware of his actions after he returned from the smoking area on the day of the incident.
On cross-examination, Williams acknowledged that he had no personal knowledge of whether appellant ingested spice or any other drug on the day of his arrest.
DISCUSSION
I. Trial Court Background
After the presentation of evidence at the parole revocation hearing, defense counsel argued that appellant had ingested spice or some other substance in the cigarette butt he had smoked and was unconscious during the incident that led to his arrest, which "would be a defense to all of these charges as long as it was involuntary." The prosecutor then stated that the defense of diminished capacity had been abolished and, therefore, evidence of a person's intoxication was "not admissible to show or negate capacity to form particular purpose, intent, motive, malice aforethought." Defense counsel responded by bringing to the court's attention the case of People v. James (2015) 238 Cal.App.4th 794 (James), which counsel said "holds that involuntary intoxication and unconsciousness caused by that is a defense."
The court found as follows: "On that delicate issue, I don't believe the facts support the expert's opinion that he was unconscious. I read the transcript, and it was clear he was talking all the time and responding and in a rational way, so I don't give any credence to any unconsciousness as defense." From that evidence, the court found that appellant had violated the terms of his parole by committing two batteries and resisting arrest.
II. Legal Analysis
Parole revocation determinations must be based on a preponderance of the evidence admitted at the parole revocation hearing. (Pen. Code, § 3044, subd. (a)(4); People v. Rodriguez (1990) 51 Cal.3d 437, 441 (Rodriguez).) In determining whether to revoke parole, the trial court has "very broad discretion." (Id. at p. 443.) We review an order revoking parole for abuse of that discretion and review the court's factual findings for substantial evidence. (People v. Butcher (2016) 247 Cal.App.4th 310, 318 (Butcher).)
All further statutory references are to the Penal Code unless otherwise indicated.
Although Rodriguez involved a probation revocation hearing, "[p]arole and probation revocation hearings are equivalent in terms of the requirements of due process. [Citations.]" (Rodriguez, supra, 51 Cal.3d at p. 441.) --------
"Unconsciousness, if not induced by voluntary intoxication, is a complete defense to a criminal charge. (§ 26, Class Four [citations].)" The statutory concept of unconsciousness has a distinct legal meaning. "To constitute a defense, unconsciousness need not rise to the level of coma or inability to walk or perform manual movements; it can exist 'where the subject physically acts but is not, at the time, conscious of acting.' [Citation.]" (People v. Halvorsen (2007) 42 Cal.4th 379, 417.) In approaching the issue, courts "begin with the presumption that a person who appears to act in an apparent state of consciousness is conscious. [Citation.] Therefore, the burden is on a criminal defendant to produce evidence rebutting this presumption of consciousness. [Citation.]" (James, supra, 238 Cal.App.4th at p. 804.)
Here, according to appellant, "the trial court ignored or misconstrued a defense to the three charged allegations" and "misunderstood the very nature of the defense of unconsciousness." Appellant believes the court may have been influenced to ignore the issue of unconsciousness by the prosecutor's inapplicable argument about diminished capacity no longer being a defense. We disagree. The court's explanation of its finding that appellant had violated the terms of his parole made clear that it understood defense counsel's argument that appellant was not culpable to due unconsciousness. The court nonetheless believed the evidence failed to support the expert's opinion that appellant was unconscious, finding instead that the evidence showed appellant "was talking all the time and responding and in a rational way," which it found disproved the claim of unconsciousness. Hence, appellant has not shown that the court "ignored or misconstrued" appellant's defense of unconsciousness. Rather, the court exercised its discretion by making a factual determination that appellant had not satisfied his burden "to produce evidence rebutting [the] presumption of consciousness." (James, supra, 238 Cal.App.4th at p. 804; see also Butcher, supra, 247 Cal.App.4th at p. 318.)
We also find, however, that the court's factual determination that appellant had failed to rebut the presumption of consciousness was not supported by substantial evidence. (See Butcher, supra, 247 Cal.App.4th at p. 318; James, supra, 238 Cal.App.4th at p. 804.)
At the hearing, evidence was presented that appellant had smoked three cigarette butts he found outside, including one that tasted funny. Carpenter, the GEO program director, testified that there had been no problems with appellant before his marijuana related arrest two months earlier. Carpenter had seen appellant 30 minutes before his arrest and he had seemed fine. Appellant testified that he had no memory after arriving in the lobby until he "was being hog tied." He had no reason to assault Schwartz or Smith and had never used spice.
On the recording of the 911 call in which appellant can be heard making unusual growling and shrieking sounds, Schwartz tells the dispatcher that the staff thought appellant was "on spice" because "he went from calm to taking a break, and now he's like this." One of the police officers who responded testified that when she arrived, appellant was on the ground; his body was tense and he was yelling and growling. The police body camera footage shows appellant still making unusual sounds and holding his body tensely as police try to handcuff him. Mixed in with the other noises, appellant can be heard shouting things like "no," "stop," and "Leave me the fuck alone!"
Williams, the forensic psychologist, testified that appellant's behavior both during the 911 call and in the police footage was consistent with hyperactive delirium caused by chemicals in spice. In such a state, a person "who ha[s] been rational . . . suddenly and quickly deteriorates, and often quickly improves afterwards." Williams opined that someone who is delirious is also unconscious.
The court's conclusion that appellant was conscious because he "was talking all the time and responding in a rational way" is simply not consistent with the evidence. The only reasonable explanation for appellant's behavior, based on overwhelming evidence, is that he had involuntarily ingested a drug such as spice, which had caused a delirium during which he was not aware of his actions. The words he used as the officers attempted to handcuff him, interspersed with the screaming, demonstrated a reflexive reaction to their physically restraining him, not a rational response to the situation, as the court stated.
In sum, considering the evidence of appellant's sudden bizarre behavior, which occurred shortly after he had smoked several cigarette butts, and the expert testimony supporting a finding of unconsciousness due to hyperactive delirium, we conclude the evidence was overwhelming that appellant was unconscious at the time of the offenses. (See People v. Halvorsen, supra, 42 Cal.4th at p. 417; James, supra, 238 Cal.App.4th at p. 804.) The court's order revoking appellant's parole was therefore an abuse of discretion. (See Butcher, supra, 247 Cal.App.4th at p. 318.)
DISPOSITION
The order revoking appellant's parole is reversed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Miller, J.