Opinion
B301143 B296614
03-18-2020
In re STEPHANIE N. HUTCHINSON on Habeas Corpus. THE PEOPLE, Plaintiff and Respondent, v. STEPHANIE N. HUTCHINSON, Defendant and Appellant.
Andrea Keith, under appointment by the Court of Appeal, for Defendant, Appellant, and Petitioner. Xavier Becerra, Attorney General, Lance E. Winters and Susan Sullivan Pithy, Assistant Attorneys General, Idan Ivri and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). Los Angeles County Super. Ct. No. TA146594 ORIGINAL PROCEEDINGS on petition for writ of habeas corpus, H. Clay Jacke II, Judge. Petition denied. APPEAL from orders of the Superior Court of Los Angeles County, H. Clay Jacke II, Judge. Affirmed. Andrea Keith, under appointment by the Court of Appeal, for Defendant, Appellant, and Petitioner. Xavier Becerra, Attorney General, Lance E. Winters and Susan Sullivan Pithy, Assistant Attorneys General, Idan Ivri and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Following a bench trial, defendant Stephanie N. Hutchinson was convicted of first degree burglary with a true finding that a person other than defendant was present in the residence at the time she committed the crime. The court suspended imposition of sentence and granted defendant three years of formal probation. Defendant appealed from the conviction and order granting probation and filed a separate habeas petition. We issued an order to show cause why defendant's habeas petition should not be granted and informed the parties that we would hear and consider defendant's petition concurrently with her appeal.
In her habeas petition, defendant argues her trial counsel was ineffective for failing to request pretrial mental health diversion under Penal Code section 1001.36. Because defendant has not shown trial counsel's representation was deficient, we deny her habeas petition.
All undesignated statutory references are to the Penal Code.
As for defendant's direct appeal, appellate counsel filed a brief raising no issues and asking us to review the record independently under People v. Wende (1979) 25 Cal.3d 436. Having reviewed the entire record, we have found no arguable appellate issues and affirm defendant's conviction and the order granting probation.
PROCEDURAL BACKGROUND
The People charged defendant with one count of first degree residential burglary (§ 459). They also alleged the burglary qualified as a violent felony because a person other than defendant was present in the home during the commission of the offense (§ 667.5, subd. (c)(21)).
On January 24, 2019, the court denied defendant's Marsden motion. After the parties waived their rights to a jury trial, a bench trial began on January 29, 2019. The court found defendant guilty of first degree burglary and found true the allegation that a person other than defendant was present in the home during the commission of the offense.
People v. Marsden (1970) 2 Cal.3d 118.
The court stayed imposition of defendant's sentence and granted defendant three years of formal probation. Among other conditions of probation, the court ordered defendant to "cooperate with the probation officer in a plan for mental health counseling" and to serve 365 days in county jail, with 300 days of custody credit. After finding defendant lacked the ability to pay, the court imposed but stayed the following fines and fees: a $400 restitution fine, a $400 probation revocation fine, a $40 court security fee, a $30 criminal conviction assessment, and a $10 crime prevention fine.
In March 2019, defendant appealed her conviction and subsequent sentencing order granting probation.
On October 2, 2019, defendant filed a petition for writ of habeas corpus. Defendant argued her trial counsel rendered ineffective assistance by failing to request a hearing to determine whether defendant was eligible for pretrial mental health diversion under section 1001.36. On November 6, 2019, we issued an order to show cause why defendant's requested relief should not be granted. On November 19, 2019, the People filed a return to defendant's petition, and on December 2, 2019, defendant filed a traverse.
We grant defendant's request included in her habeas petition to take judicial notice of the "transcripts, files, briefs, motions and record" from the underlying court proceedings in Los Angeles Superior Court Case Number TA146594.
We resolve the habeas petition and the direct appeal in this opinion.
FACTUAL BACKGROUND
Around 1:00 p.m. on July 17, 2018, Gizell Fajardo and her mother, father, and brother left their house on Washington Street in Carson. While the family was gone, defendant broke into the home through a living room window. Defendant ate some tortillas and beans in the Fajardos' kitchen, and she drank a bottle of soda, a bottle of water, and half a bottle of cold medicine. When the Fajardos returned home around 3:30 p.m., Gizell found defendant in the restroom. Gizell immediately left the house and called the police.
We refer to Gizell by her first name to avoid confusion with her family members.
Defendant was arrested inside the Fajardos' home. A deputy sheriff read defendant an "admonition and waiver" of Miranda rights twice because she initially provided the deputy a fake name. Defendant signed and initialed the form. The deputy who advised defendant of her Miranda rights believed defendant was intoxicated because she provided a false name, slurred her speech, mumbled a lot, and otherwise refused to answer the deputy's questions. After defendant was transported to the hospital, she told another deputy that "[t]he only item [she] produced during [her] visit to the property was a narrow pair of pliers with some green trim."
Miranda v. Arizona (1966) 384 U.S. 436.
DISCUSSION
1. Defendant's Habeas Petition (B301143)
In her habeas petition, defendant contends she was denied the right to effective assistance of counsel under the United States and California Constitutions when her trial counsel failed to request a hearing under section 1001.36 to determine whether defendant qualified for pretrial mental health diversion. We disagree.
1.1. Relevant Proceedings
In December 2018, about a month before trial, defendant was evaluated by Dr. Jack Rothberg, a psychiatrist. On December 26, 2018, Dr. Rothberg issued a "psychiatric report" detailing his evaluation of defendant.
Defendant was 40 years old at the time of her examination. She told Dr. Rothberg that she graduated high school and college and obtained three post-graduate degrees: a masters in education, a masters in philosophy of religion, and an unspecified doctorate. Defendant has been unemployed since she was laid off from her job as a substitute teacher in 2014 and, in February 2018, she became homeless.
Defendant rarely drinks alcohol. She has used marijuana, methamphetamine, and cocaine, but she denied ever using "heroin, PCP, or any intravenous drugs." Defendant told Dr. Rothberg that aside from the arrest for the underlying burglary, she had been arrested four times, "including a couple of trespassing charges, domestic violence, and being under the influence."
Defendant reported she suffers from "significant serious depression" for which she was prescribed "Pristiq and trazadone." Defendant also was diagnosed with ADHD and narcolepsy, and she was taking "modafinil 200 mg twice a day and Adderall 30 mg twice a day." Defendant denied suffering any hallucinations, paranoid delusions, or any "Schneiderian criteria for schizophrenia." Defendant told Dr. Rothberg that she had received treatment from a psychiatrist, "Dr. Richard Jenkins," in the past.
There are no psychiatric records from a Dr. Jenkins in the appellate record, nor has defendant provided any such records in support of her habeas petition.
Dr. Rothberg reported on his "mental status examination" of defendant. Defendant was not anxious, but her "mood [was] sad and labile, at times inappropriate." She did not display any "obvious delusions, hallucinations, ideas of reference, or other evidence of psychotic psychopathology," although Dr. Rothberg was "suspicious that a great deal of what she was telling [him] was delusional" since he "could not verify her various educational achievements, and her explanations certainly did not add up." Defendant's "fund of knowledge, ability to abstract and general intellectual functioning are clearly above average," but she "demonstrates limited capacity for insight."
Dr. Rothberg also opined on the circumstances of defendant's commission of the charged crime. Defendant's explanation that she believed the Fajardo's home was abandoned when she entered was "obviously not true." According to Dr. Rothberg, there were "elements both of deliberate attempts to commit the burglary as well as some impaired mental state."
Although Dr. Rothberg believed defendant's consumption of the Nyquil inside the Fajardo's home likely contributed to her disoriented mental state when she was arrested, he believed she likely suffers from a "significant mental disorder, apart from the substance abuse issues," based on her behavior during the months she spent in custody following her arrest. Dr. Rothberg could not make a diagnosis concerning defendant's mental health, however, without reviewing defendant's records from Dr. Jenkins. According to Dr. Rothberg, "[s]omeone with [defendant's] degrees not being able to get a job and spiraling down into homelessness is usually indicative of a serious underlying mental illness." But Dr. Rothberg concluded that "[a]t this point it is just impossible to say anything more definitive without some collateral sources. I do suspect that [defendant] has a major mental disorder, nonetheless."
During closing argument in defendant's trial, defense counsel focused on defendant's apparent mental health issues and the fact that defendant appeared intoxicated at the time she was arrested to argue she lacked the specific intent to commit burglary. Specifically, counsel argued, "So what you have before you in terms of the People's witnesses or any evidence that you heard ... is a woman ... that is so mentally unstable and being so under the influence that she was unresponsive to any questions."
Before the sentencing hearing, the court asked the People what sentence they intended to recommend because "there's clearly a lot of mitigation" based on defendant's apparent mental health issues. After the People stated they would be amenable to granting defendant probation on the condition that she receive mental health treatment, the court asked the parties to research suitable inpatient treatment programs for defendant. The court explained, "I think, knowing where the People are coming from, and I kind of told you where I'm coming from—there's a whole lot of mitigation here—so I think you may research some programs that—perhaps live-in, since she's homeless, programs that the defendant can take part in that would benefit her."
On February 12, 2019, before the sentencing hearing, trial counsel contacted the Los Angeles County Department of Health Services (DHS), asking for assistance in finding defendant appropriate placement and services for her mental and physical health issues. Counsel stated that the judge in defendant's case "would like to see [defendant] placed in a residential placement with mental health services for at least 6 months up to 1 year." Counsel explained that she had "already applied for placement and services through ODR (Office of Diversion and Reentry)" and that defendant had previously been in contact with DHS to obtain help "get[ting] housing for her specific needs (depression, PTSD, medical issues with her nerves and thyroids)."
On February 18, 2019, also before the sentencing hearing, a representative from "Recovery Network RNR" sent a letter to the court explaining that defendant was not eligible for placement in the organization's treatment program "[d]ue to the severity of [defendant's] medical treatment needs." The representative explained that defendant "requires a higher level of care tha[n] the types of programs [the organization has] access to."
After the sentencing hearing, defendant's appellate counsel filed a motion to recall defendant's sentence under section 1170, subdivision (d), to allow her to request pretrial diversion under section 1001.36. In July 2019, the court denied defendant's motion because, although section 1001.36 was in effect when defendant was tried in the underlying case, she never made a request for pretrial diversion. The court also denied the motion on the ground that defendant never made a showing that she "suffered from a mental disorder identified in the DSM nor that such mental disorder was a significant factor in the commission of the charged offense."
1.2. Legal Principles Concerning Ineffective Assistance of Counsel
The federal and state Constitutions entitle a criminal defendant to the right to effective assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; Strickland v. Washington (1984) 466 U.S. 668, 686 (Strickland) [the right to counsel entitles a defendant to effective counsel].) That right entitles a defendant to " 'the reasonably competent assistance of an attorney acting as [her] diligent conscientious advocate.' [Citations.]" (People v. Ledesma (1987) 43 Cal.3d 171, 215.)
To establish a claim for ineffective assistance of counsel, a defendant must prove by a preponderance of the evidence that: (1) her lawyer's performance was deficient because it fell below an objective standard of reasonableness in all the circumstances; and (2) that absent those errors, a different outcome was reasonably probable, meaning a probability sufficient to undermine confidence in the outcome. (People v. Cunningham (2001) 25 Cal.4th 926, 1030; see also In re Bolden (2009) 46 Cal.4th 216, 224 ["The petitioner 'must prove, by a preponderance of the evidence, facts that establish a basis for relief on habeas corpus.' "].)
When reviewing the adequacy of counsel's performance, we presume counsel's conduct fell within the "wide range" of reasonably competent assistance. (In re Lucas (2004) 33 Cal.4th 682, 721.) We are required to make "every effort ... to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." (Strickland, supra, 466 U.S. at p. 689.) "Although 'a court must indulge a "strong presumption" that counsel's conduct falls within the wide range of reasonable professional assistance' [citation], nonetheless, counsel's alleged tactical decisions must be subjected to 'meaningful scrutiny.' [Citation.]" (Lucas, at p. 722.)
1.3. The Diversion Statute
Section 1001.36 went into effect in late June 2018. (See former § 1001.36, effective June 27, 2018.) The statute creates a pretrial diversion program for defendants who suffer "from a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders [DSM], including, but not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder, but excluding antisocial personality disorder, borderline personality disorder, and pedophilia." (§ 1001.36, subd. (b)(1)(A).) " '[P]retrial diversion' means the postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication ... ." (Id., subd. (c).)
The statute was amended in January 2019 to add offenses that automatically disqualify a defendant from eligibility for pre-trial mental health diversion, none of which are at issue in this case. (See § 1001.36, subd. (b)(2); Stats. 2018, ch. 1005, § 1.)
The DSM-5, which was in effect at the time defendant committed the burglary, is the most recent version of the DSM.
"On an accusatory pleading alleging the commission of a misdemeanor or felony offense, the court may, after considering the positions of the defense and prosecution, grant pretrial diversion ... if the defendant meets all [six] requirements ... ." (§ 1001.36, subd. (a).) First, the court must be "satisfied that the defendant suffers from" a qualifying disorder identified in the DSM. (Id., subd. (b)(1)(A).) Second, the court must be "satisfied that the defendant's mental disorder was a significant factor in the commission of the charged offense." (Id., subd. (b)(1)(B).) Third, "a qualified mental health expert" has opined that the defendant's symptoms "motivating the criminal behavior would respond to mental health treatment." (Id., subd. (b)(1)(C).) Fourth, aside from certain exceptions, the defendant waives her right to a speedy trial and consents to diversion. (Id., subd. (b)(1)(D).) Fifth, the defendant agrees "to comply with treatment as a condition of diversion." (Id., subd. (b)(1)(E).) And finally, the court finds "the defendant will not pose an unreasonable risk of danger to public safety ... if treated in the community." (Id., subd. (b)(1)(F).)
Once the court finds the defendant satisfies all six requirements, it then must determine whether "the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant." (§ 1001.36, subd. (c)(1)(A).) If all these conditions are satisfied, the court may grant diversion and refer the defendant to an appropriate treatment program. (Id., subd. (c)(1)(B).) Thereafter, the provider "shall provide regular reports to the court, the defense, and the prosecutor on the defendant's progress in treatment." (Id., subd. (c)(2).) The criminal proceedings against the defendant may not be "diverted" for more than two years. (Id., subd. (c)(3).)
Once diversion is granted under section 1001.36, the court may reinstate the criminal proceedings if the defendant commits additional crimes or otherwise performs unsatisfactorily in the assigned treatment program. (§ 1001.36, subd. (d).) If the defendant completes diversion, however, "the court shall dismiss the defendant's criminal charges that were the subject of the criminal proceedings." (Id., subd. (e).) "Upon successful completion of diversion, if the court dismisses the charges, the arrest upon which the diversion was based shall be deemed never to have occurred, and the court shall order access to the record of the arrest restricted" for most purposes. (Id., subd. (e).)
1.4. Defendant has not established trial counsel's performance was deficient.
Defendant contends trial counsel was ineffective because she failed to request pretrial diversion under section 1001.36. Specifically, defendant asserts that after counsel obtained Dr. Rothberg's psychiatric report, counsel should have requested an eligibility hearing under section 1001.36 or investigated defendant's mental health status to determine whether it would be appropriate to request a diversion hearing.
In an August 27, 2019 email that trial counsel sent to appellate counsel, trial counsel explained why she believed defendant did not qualify for pretrial mental health diversion: (1) defendant claimed she "was not mentally ill"; (2) "there [were] no mental health records indicating [defendant] had a DSM-5 diagnosis (there was a psychological [sic] report from Dr. Rothberg that said she was depressed, but the report cast doubt on [defendant's] assertions/credibility)"; (3) defendant "was not involved in any type of mental health treatment to treat any underlying mental disability"; and (4) "there was no 'disorder' that substantially played a role in the commission of the charged offense." As we explain, we cannot conclude on this record that trial counsel's decision not to pursue diversion was deficient.
Defendant attached to her petition a copy of the August 27, 2019 email that trial counsel sent to appellate counsel. The email purports to respond to an inquiry from appellate counsel sent on June 11, 2019. We do not know the contents of the June 11, 2019 email, however, since appellate counsel has not attached a copy of it to the materials filed in support of defendant's petition. --------
As trial counsel noted in her email, nothing in the record establishes that defendant had been diagnosed with a qualifying mental disorder before she was tried, a prerequisite for mental health diversion under section 1001.36. (See § 1001.36, subd. (b)(1)(A).) While Dr. Rothberg opined in his psychiatric report that defendant displayed symptoms of suffering from a mental illness, he expressly refused to diagnose her with a disorder, acknowledging that he lacked sufficient information about defendant's psychiatric history to make a diagnosis.
Dr. Rothberg also noted that defendant claimed she was being treated by another psychiatrist, "Dr. Richard Jenkins," and that he would like to review Dr. Jenkins's records to confirm whether defendant's representations about her alleged mental disorders were true. But nothing in the record shows defendant authorized trial counsel to obtain any records from Dr. Jenkins, and defendant has not provided any records from Dr. Jenkins in support of her petition. Consequently, assuming Dr. Jenkins treated defendant, we are unable to determine whether any records from that treatment would have supported a request for diversion. As for defendant's statements to Dr. Rothberg that she had suffered from depression and was diagnosed with ADHD and narcolepsy, there are no medical records to support those statements in the appellate record or in the materials filed in support of defendant's petition. Thus, we cannot determine whether defendant was suffering from ADHD, depression, narcolepsy, or any other qualifying mental disorder at the time she was charged with burglary (§ 1001.36, subd. (b)(1)(A)), or that any qualifying disorder was a significant factor in defendant's commission of that crime (Id., subd. (b)(1)(B)). Defendant, therefore, has not shown trial counsel was deficient for failing to request a diversion hearing.
In any event, even if the information in Dr. Rothberg's report was sufficient to establish defendant's eligibility under section 1001.36, the record supports an inference that counsel's decision not to request a diversion hearing was reasonable. Specifically, based on statements that were made at the Marsden hearing held less than a week before trial, trial counsel could have made a tactical decision to forgo pursuing diversion because she believed defendant could obtain a more favorable result at trial—i.e., an acquittal—based on counsel's perceived strength of defendant's case. (See People v. Weaver (2001) 26 Cal.4th 876, 925 [" 'Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel' "].)
In sum, because defendant has failed to show that trial counsel's decision not to request a diversion hearing under section 1001.36 was deficient, she cannot establish a claim for ineffective assistance of counsel. Accordingly, we deny defendant's habeas petition.
2. Defendant's Appeal (B296614)
We appointed counsel to represent defendant in her direct appeal. After examining the record, appellate counsel filed an opening brief pursuant to People v. Wende, supra, 25 Cal.3d 436, identifying no arguable issues and asking the court to conduct an independent review of the record. On October 3, 2019, we notified defendant that she had 30 days to submit in writing any issues or contentions she wanted us to consider. Defendant did not file a response.
We have reviewed the entire record and are satisfied that appellate counsel has fully complied with her responsibilities as counsel and that there are no arguable issues on appeal, aside from the issues raised in defendant's habeas petition, which we addressed above. (People v. Kelly (2006) 40 Cal.4th 106, 119.)
DISPOSITION
The conviction and order granting probation are affirmed. Defendant's petition for writ of habeas corpus is denied.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J. WE CONCUR:
EDMON, P. J.
DHANIDINA, J.