Opinion
E071450
11-26-2019
THE PEOPLE, Plaintiff and Respondent, v. TOM JOSEPH RAYMOND, Defendant and Appellant.
Christopher Nalls, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Nancy Lii Ladner, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVI17002062) OPINION APPEAL from the Superior Court of San Bernardino County. Cara D. Hutson, Judge. Affirmed. Christopher Nalls, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Nancy Lii Ladner, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Tom Joseph Raymond stabbed a shopkeeper 28 times, killing her. He pleaded not guilty by reason of insanity to first degree murder (Pen. Code, § 187) and an enhancement for using a knife in committing the offense (§ 12022, subd. (b)(1)). In a bifurcated trial, a jury found Raymond guilty as charged and found that he was sane when he committed the murder. The trial court imposed a prison term of 26 years to life.
Further undesignated statutory references are to the Penal Code.
In this appeal, Raymond argues that the trial evidence compelled a finding that he was not sane at the time of the murder. We reject this argument, finding that the evidence of insanity is not as compelling as Raymond contends. Raymond further argues that his trial counsel provided ineffective assistance of counsel by failing to request a pretrial mental health diversion hearing pursuant to section 1001.36. We decline to consider the merits of this argument, finding it more appropriately considered on a record developed in a habeas corpus proceeding. We therefore affirm the judgment.
I. BACKGROUND
On July 30, 2017, Raymond went into a mall's clothing store operated by the victim and her husband. The husband asked if he could help Raymond. Raymond said he was just looking. As Raymond was walking out, the victim walked in; she too, asked if she could help him. Again, Raymond said that he was just looking.
Many of the events described here were captured on surveillance video, which was played for the jury and admitted into evidence.
A few minutes later, the husband left the store and went to the mall's break room. While the husband was out of the store, Raymond returned and attacked the victim, beating her and stabbing her with a knife. He dragged the victim from the front of the store to a dressing room, where he continued to strike her.
Raymond was discovered in the store by the victim's adult son, who ran another store in the mall. The son had noticed his father was in the break room, but as he walked by his parents' store he did not see his mother. Spotting Raymond crouched in the store, the son entered and tried, without success, to "engage[]" Raymond with "usual customer talk," like asking if he needed help. As the son "continued into the shop," he noticed there was blood on the floor. Raymond moved behind the store's counter. The son told Raymond to get out from behind the counter, but Raymond did not comply. The son then told Raymond that he was going to shoot Raymond if he did not get out from behind the counter. Raymond responded, "Go ahead and shoot me." The son then "backtracked" and "called for security."
A security guard arrived at the store, together with the victim's husband, and the victim's son went to retrieve his gun. Raymond confronted the security guard and the victim's husband, brandishing a tool—described in the record as a wrench or a channel lock pliers—that the victim's husband normally kept near the cash register, and telling the security guard to "get back." Raymond also was holding what the security guard recognized to be a "small canvas bank bag." The security guard responded, "no, you get back," and threatened to pepper spray him. Raymond then tried to run around some clothing racks and get out of the store but was blocked from doing so. The victim's son returned with his gun and ordered Raymond to get down on the ground. Raymond complied and the security guard handcuffed him.
After Raymond was restrained, the victim was discovered in the dressing room, severely injured but still breathing. She was taken to the hospital, but she could not be saved. In addition to 28 stab wounds to the neck, chest, abdomen, lower face, and hand, the victim had suffered broken ribs, a broken nose, a broken skull, and bleeding in the brain. A forensic pathologist opined that she died within minutes of the stab wounds and blunt force injury to her head.
The police investigation of the crime scene revealed that, before being discovered by the victim's son, Raymond had taken items of clothing from the racks of the store and used them to mop blood from the floor and walls. He also had taken the victim's wedding ring and watch, which she had been wearing, and put them in her lunch box.
The defense presented no evidence during the guilt phase of the bifurcated trial. The jury found Raymond guilty as charged of one count of first degree murder (§ 187, subd. (a)), and found true the allegation that he personally used a knife in the commission of the offense (§ 12022, subd. (b)(1)).
Our record does not reflect an alternative plea of not guilty and not guilty by reason of insanity, but it seems the trial was conducted in the manner contemplated by section 1026 for such a circumstance, first trying Raymond on guilt and then sanity, in separate proceedings before the same jury. (See § 1026, subd. (a).)
During the sanity phase of the trial, the defense presented testimony from Raymond, his brother, and three psychologists who had assessed Raymond's sanity after the murder (two appointed by the court, one hired by the defense). The prosecution presented no additional evidence.
Raymond's brother testified that they had a family history of mental illness, and that Raymond had "always had" mental health "issues." According to Raymond's brother, Raymond had been "at his worst" in the period around the stabbing, demonstrating "paranoid" and "delusional" behavior. For example, Raymond believed alternately that he was an informant for the Federal Bureau of Investigation and that the Federal Bureau of Investigation was looking for him. On the afternoon of the stabbing, Raymond had called his brother, stating that "some gentlemen were looking for him and wanted to kill him, that he was in danger . . . ." Raymond asked his brother to come pick him up, but he could not because he did not have transportation.
Raymond testified that he had been diagnosed with Attention Deficit Hyperactivity Disorder in elementary school, and that he had received medication and treatment for manic depressive episodes as an adult, beginning in early 2016. According to Raymond, in the two months before the stabbing, he had been off of medication, and he began having delusions. Raymond testified that on July 30, 2017, he had been in a manic episode, he was homeless, and he had been walking around in 100 degree heat "aimlessly with little food or water . . . ." Off and on during this manic episode, he had the delusion that "society" had "obligated" him to kill someone. He believed that California had become a separate republic, that it was at war with North Korea, that martial law was in effect, and that he was in the military. He believed that he had received a "signal" that the victim was the person he was obligated to kill when she showed him a video of a Korean drummer on her iPad; he had a friend who had died who had been a drummer, and he believed the victim was "mocking" him with the video. Raymond stated that he knew he was killing another human being when he killed the victim. After he killed her, he believed that he had "earned" the right to the store, and that everything in it was his, because he had done "society's deed."
Raymond also testified that while incarcerated before trial he had been taking antipsychotic and antidepressant medication. He found that the medication had helped his thoughts be clearer and "less manic, less racing . . . ."
All three of the psychologists who examined Raymond concluded that he was not legally sane at the time of the killing. The first to evaluate Raymond was Margorie Graham-Howard, who assessed Raymond on behalf of the defense. Graham-Howard met with Raymond seven times in September and October 2017, spoke to Raymond's brother, and reviewed police reports and Raymond's criminal history. In one of their earlier interviews, Raymond told Graham-Howard that he "hadn't picked his defense yet," and contemplated saying that the victim attacked him with the knife. Ultimately, however, Graham-Howard accepted Raymond's later statements to her that he killed the victim because he had been under the delusion that he had been ordered or forced into a mission to kill someone, and if he did not do so, he or his family would be killed. Graham-Howard opined that Raymond had been aware that killing the victim was criminally wrong, but not that it was morally wrong.
Two court-appointed psychologists reached similar conclusions. Maurizio Assandri assessed Raymond in March 2018, meeting with him on one occasion for a couple of hours, in addition to reviewing the police report and jail medical records. Andrea Bauchowitz assessed Raymond in April 2018, reviewing the police report and interviewing him for about 90 minutes. Both Assandri and Bauchowitz opined, based primarily on Raymond's own statements, that he was acting under the delusion that he had to kill someone when he stabbed the victim, and that he therefore did not understand that killing her was morally wrong.
None of the three psychologists reviewed the surveillance footage of the murder. None of them were aware when they made their assessments that Raymond had taken the victim's watch and ring.
II. DISCUSSION
A. Jury's Sanity Finding
1. Applicable Law
In the sanity phase of the trial, a defendant has the burden to prove "by a preponderance of the evidence that he or she was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense." (§§ 25, subd. (b), 1026, subd. (a); People v. Elmore (2014) 59 Cal.4th 121, 141.) This statutory language has been interpreted to mean that insanity can be shown under either the "nature and quality" prong or the "right from wrong" prong of the test. (People v. Skinner (1985) 39 Cal.3d 765, 775-777.) Our Supreme Court has also held that "a defendant who is incapable of understanding that his act is morally wrong is not criminally liable merely because he knows the act is unlawful." (Id. at p. 783.) "Because the defendant has the burden of proof on the issue of insanity, 'the question on appeal is not so much the substantiality of the evidence favoring the jury's finding as whether the evidence contrary to that finding is of such weight and character that the jury could not reasonably reject it.'" (People v. McCarrick (2016) 6 Cal.App.5th 227, 247-248 (McCarrick).) Moreover, a reviewing court must view the evidence with respect to a finding of sanity in the light most favorable to the jury's verdict. (People v. Samuel (1981) 29 Cal.3d 489, 505.)
2. Analysis
Raymond contends that the weight and character of the evidence that he was not sane at the time of the murder was such that the jury could not reasonably reject it. Not so.
Each of the experts who assessed Raymond concluded that he was not sane at the time of the murder. It is well established, however, that "'expert testimony, even if uncontradicted, is not binding on the trier of fact, and may be rejected, especially where experts are asked to speculate about a defendant's state of mind at the moment the crime was committed . . . . '" (McCarrick, supra, 6 Cal.App.5th at p. 247.) Our Supreme Court has "frequently upheld on appeal verdicts which find a defendant to be sane in the face of contrary unanimous expert opinion." (People v. Drew (1978) 22 Cal.3d 333, 350, superseded by statute on other grounds as stated in People v. Skinner, supra, 39 Cal.3d at pp. 768-769; see McCarrick, supra at p. 247.) It is "'only in the rare case when the "evidence is uncontradicted and entirely to the effect that the accused is insane" [citation] that a unanimity of expert testimony could authorize upsetting a jury finding to the contrary.'" (People v. Drew, supra at p. 350.)
Here, there was some evidence that, viewed in the light most favorable to the verdict, contradicts Raymond's evidence that he was legally insane at the time of the murder. The jury could have reasonably construed Raymond's actions of timing his attack for a moment when the victim was alone in the store, concealing the victim in the dressing room, attempting to clean up spattered blood, and attempting to escape when discovered after the murder, as evidence that he was aware at the time that his actions were wrongful. Nothing that Raymond said to the victim's son, the victim's husband, or the security guard, nor anything he did on the surveillance video, unambiguously supported his later contention that he was acting under the influence of a delusion that he was obligated to kill the victim. The jury could have viewed Raymond's demeanor, as depicted in surveillance video, as inconsistent with his claim of insanity. It was also entitled to find that Raymond and his brother lacked credibility when they testified during trial. There was even some affirmative evidence supporting the conclusion that Raymond's claim of insanity was a later invention, rather than an accurate recollection of his state of mind: Raymond told Graham-Howard in an early meeting that he had not yet picked out a defense, and contemplated claiming that the victim had attacked him. Only later did he tell her, and the other psychologists who assessed him, that he had believed he was obligated to kill the victim. Moreover, none of the psychologists who assessed Raymond viewed the surveillance tape of the murder, and all relied primarily on Raymond's own statements.
We are not persuaded that this case is analogous to People v. Duckett, supra, 162 Cal.App.3d 1115, as Raymond argues. In Duckett, the majority concluded that the jury could not reject the unanimous opinions of three experts that the defendant was legally insane. (Id. at pp. 1120-1123.) But in Duckett, there was far more extensive and documented evidence of the defendant's persistent insanity and delusions; the defendant had previously shot other victims, and he had been found legally insane for those crimes and confined to a mental hospital; and his current crimes occurred within a month of his release from the mental hospital. (Id. at pp. 1118, 1120-1123.) Raymond's evidence of insanity and delusions was far less compelling. Moreover, Raymond's evidence was susceptible to the interpretation that his purported delusions were a later invention, designed to avoid going to prison, rather than truly reflective of his state of mind at the time of the murder.
The evidence of Raymond's insanity was not so compelling that a reasonable jury could not reject it. On this record, we may not disturb the jury's finding.
B. Mental Health Diversion
At trial, Raymond did not request a hearing regarding eligibility for mental health diversion pursuant to sections 1001.35 and 1001.36. He contends on appeal that the failure to do so constituted ineffective assistance of counsel. We decline to reach the merits of this argument here.
We also do not decide whether the remedy that Raymond seeks—remand for consideration of eligibility for diversion under former section 1001.36—is one that can or should be ordered, even assuming Raymond can establish ineffective assistance of counsel. The issue appears to be a matter of first impression.
Effective June 27, 2018, the Legislature passed Assembly Bill No. 1810 (2017-2018 Reg. Sess.), which added sections 1001.35 and 1001.36 to the Penal Code. (Stats. 2018, ch. 34, § 24.) These statutes permit discretionary diversion of persons with qualifying mental disorders that contributed to the commission of the charged offense. (See People v. Frahs (2018) 27 Cal.App.5th 784, 789, review granted Dec. 27, 2018, S252220.) In this context, "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 . . . ." (§ 1001.36, subd. (c).) The court may grant diversion under section 1001.36 if the court finds: (1) the defendant suffers from an identified mental disorder; (2) the mental disorder played a significant role in the commission of the charged offense; (3) the defendant's symptoms will respond to treatment; (4) the defendant consents to diversion and the defendant waives his or her speedy trial rights; (5) the defendant agrees to comply with treatment; and (6) the defendant will not pose an unreasonable risk of danger to public safety, as defined in section 1170.18, if the defendant is treated in the community. (§ 1001.36, subd. (b)(1).)
Effective January 1, 2019, the Legislature amended section 1001.36 to make defendants charged with certain offenses, including murder, categorically ineligible for diversion. (§ 1001.36, subd. (b)(2)(A); (Stats. 2018, ch. 1005, § 1.) This amendment, however, was not in effect when Raymond was tried in July and August 2018, or when he was sentenced in September 2018. Under the diversion statutes as originally enacted, there was at least a theoretical possibility of mental health diversion regardless of the charged offense. (Former § 1001.36, effective June 27, 2018.) As noted, however, Raymond's counsel did not request a hearing regarding his eligibility for mental health diversion. Raymond contends here that this failure constituted ineffective assistance of counsel, and that the appropriate remedy is remand for the trial court to conduct a hearing regarding eligibility for diversion under the version of section 1001.36 that was in effect at the time of his trial.
To establish ineffective assistance of counsel, "the defendant must first show counsel's performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different." (People v. Mai (2013) 57 Cal.4th 986, 1009.) On direct appeal, a conviction will be reversed for ineffective assistance "only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding." (Ibid.)
Here, the record is silent as to why defense counsel failed to raise the issue of pretrial diversion with the trial court. It is possible that the failure to raise the issue was due to ignorance of the newly passed statutes, an unsatisfactory reason for counsel's failure. But it is also possible that defense counsel had sound reasons not to pursue the issue. For example, counsel may have conferred with Raymond about the possibility of pretrial diversion but learned that he did not want to pursue it. There could also be other facts, including facts not in our record, that reasonably led defense counsel to conclude that the trial court would have found Raymond to be ineligible for diversion on another ground. Accordingly, we find it would be inappropriate to decide the merits of Raymond's ineffective assistance of counsel claim here. The issue is more appropriately considered in a habeas corpus proceeding.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
J. We concur: CODRINGTON
Acting P. J.
FIELDS
J.