Opinion
B219216
09-15-2011
THE PEOPLE, Plaintiff and Respondent, v. JONG M. CHOE, Defendant and Appellant.
Jean Matulis, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and David A. Voet, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA208096)
APPEAL from a judgment of the Superior Court of Los Angeles County. Lance A. Ito, Judge. Affirmed.
Jean Matulis, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Jong Mok Choe was convicted, following a jury trial, of one count of kidnapping for ransom in violation of Penal Code section 209, subdivision (a), one count of child abuse in violation of section 273 a, subdivision (a) and one count of attempted kidnapping in violation of sections 664 and 207, subdivision (a). The trial court sentenced appellant to life in prison without the possibility of parole for the kidnapping for ransom conviction. Appellant appealed from that conviction, and in 2003, this Court remanded the matter to the trial court for a determination of whether appellant had withdrawn his plea of not guilty by reason of insanity ("NGI") before the trial on the substantive charges.
All further statutory references are to the Penal Code unless otherwise indicated.
On remand, the trial court found no record that appellant had personally withdrawn his NGI plea, and determined that he was entitled to a trial on the matter. Soon thereafter, however, appellant was found not competent to stand trial. Eventually, in April 2009, following a determination that appellant was competent to stand trial, appellant waived his right to a jury trial on the issue of insanity at the time of the above-listed crimes. In June 2009, the court declared a doubt as to appellant's competence to stand trial. In July 2009, the trial court found appellant competent to stand trial and denied appellant's request to withdraw his jury waiver. In August 2009, a court trial was held on the issue of insanity, and appellant was found by the court to have been sane at the time of the crimes in this case.
Appellant appeals from the judgment of conviction, contending that he was not properly determined to be competent at the time of the sanity trial, he was denied his right to a jury trial on the sanity issue, and he was denied his right to a speedy trial. We affirm the judgment.
Facts of the underlying offenses
On October 6, 2000, about noon, appellant entered a preschool on South Crenshaw Boulevard. He told a teacher that he had come to pick up Stephen K. Appellant was a taxi driver and had driven Stephen K. to preschool on other occasions. The school's director called Stephen's parents. They said that they had not authorized anyone to pick up Stephen. Stephen's teacher relayed this information to appellant, who then fled the preschool.
About an hour later, appellant entered a preschool on South St. Andrews Place and told a teacher that he had come to pick up Edward K. The teacher asked Edward if he knew appellant. Edward replied that appellant was the taxi driver. The teacher allowed Edward to leave with appellant.
Later that afternoon, Edward's mother, Kyung K., received a call from a person who said he had Edward. Kyung called Edward's preschool, learned that he was not there and told the school to call the police. Kyung received a number of calls that afternoon demanding ransom money. The police were able to record some of the calls. The caller's voice was later identified as appellant's voice.
About 5:00 p.m., a couple driving in Griffith Park saw Edward climbing up a hill to the road. He was crying, had scratches on his face and arms, and appeared to be in shock. The couple took Edward to a ranger station in the park. From there, Edward was taken to Children's Hospital.
Appellant was arrested that night when he went to a gas station to collect the ransom. Among other items, appellant had a bottle of Triazolem tablets.
Appellant told police that he and some other men had planned the kidnapping. Appellant first tried unsuccessfully to kidnap a child from the preschool on Crenshaw, then went to Edward's school and kidnapped him. He claimed that the other men made the telephone calls to Kyung while he took Edward to a restaurant and his apartment. Appellant gave Edward two or three sleeping pills and Edward foamed at the mouth, was unable to control his body and eventually lost consciousness. Appellant drove Edward to Griffith Park and left him there.
Edward had Triazalom, a sedative, in his system. If appellant had given Edward two of the tablets from his bottle, he would have given Edward ten times the proper dosage for his weight. That dosage would cause the recipient to experience drowsiness, and would potentially cause seizures, including foaming at the mouth, shaking, staggering, difficulty breathing and ultimately a coma, cessation of breathing and death. If the recipient were left outside overnight, he could become lost and fall and experience hypothermia and dehydration. A child left in Griffith Park overnight would also be exposed to "tons" of coyotes capable of killing a child.
Facts related to the sanity trial
Following the remand in this case for further proceedings on appellant's NGI plea, the matter was continued several times. In April 2005, the court declared a doubt as to appellant's competence to stand trial. In July 2005, the court found appellant incompetent to stand trial. Appellant received treatment at a variety of state psychiatric facilities. In November 2008, the trial court determined that appellant's competence had been restored. On June 3, 2009, the court again declared a doubt as to appellant's competence to stand trial. On July 12, 2009, the court determined that appellant was competent to stand trial. Following this finding, appellant's counsel made a motion to withdraw appellant's jury trial waiver. The motion was denied. When the parties appeared on July 22, 2009, for trial, appellant's counsel declared a doubt as to appellant's competence. The court found appellant competent. Trial proceeded intermittently thereafter. On August 31, the trial court found appellant sane at the time of the crimes. The court stated: "The acts of taking a very young child by planned subterfuge, drugging him to ensure quiet compliance and holding him for ransom describe a person acutely aware of the nature of the acts committed and its wrongfulness. This is not a close call."
Discussion
1. Developmental disability
Appellant contends that the trial court erred prejudicially in failing to refer him to a regional center to determine if he had a developmental disability before determining his competency, and that the court's competency finding was therefore invalid. Based on his belief that the competency finding was invalid, appellant contends that both that finding and the verdict in the sanity trial must be reversed.
a. Forfeiture
Respondent contends that appellant has forfeited this claim by failing to request a referral in the trial court. We see no forfeiture.
In general, when the court becomes aware of substantial evidence which objectively generates a doubt about whether the defendant is competent to stand trial, the trial court must on its own motion declare a doubt and suspend proceedings.(People v. Castro (2000) 78 Cal.App.4th 1402, 1415, overruled on other grounds by People v. Leonard (2007) 40 Cal.4th 1370.) "It is not essential for the defendant, his or her counsel, or the prosecutor to make a motion which raises the issue of the defendant's competence in order to permit consideration of the issue on appeal." (Id. at p. 1416.) Generally, "[c]ompetence cannot be waived, and the court has the initial and primary duty to act when the facts demonstrate the defendant's possible incompetency." (Ibid.)"Although the reported cases address incompetency based on mental disease, we see no reason why the same standards and principles should not apply to cases of incompetency based on developmental disability, since the statutes are equally applicable to both types of incompetence." (Id. at p. 1417.) Accordingly, appellant has not forfeited his claim.
b. Developmental disability
A defendant is mentally incompetent if, "as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner." (§ 1367, subd. (a).) A developmental disability "means a disability that originates before an individual attains age 18, continues, or can be expected to continue, indefinitely and constitutes a substantial handicap for the individual, and shall not include other handicapping conditions that are solely physical in nature. . . . [T]his term shall include mental retardation, cerebral palsy, epilepsy, and autism." (§ 1370.1, subd. (a)(1)(H).) Mental retardation is "the condition of significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested before the age of 18." (§ 1376, subd. (a).) "[T]he California Legislature has chosen not to include a numerical IQ score as part of the definition of 'mentally retarded.'" (In re Hawthorne (2005) 35 Cal.4th 40, 48.)
Section 1369 governs the trial of the issue of a defendant's mental competence to stand trial, once the court has declared a doubt about the defendant's competence. Subdivision (a) directs the court to appoint "a psychiatrist or licensed psychologist, and any other expert the court may deem appropriate, to examine the defendant." That subdivision also provides: "If it is suspected the defendant is developmentally disabled, the court shall appoint the director of the regional center for the developmentally disabled . . . to examine the defendant."
Appellant contends, and we agree, that there is some evidence that appellant suffered from a developmental disability. We do not agree that the evidence is substantial evidence which objectively generates a doubt about whether appellant was incompetent to stand trial due to that developmental disability.
Before turning to a consideration of appellant's evidence, it is important to place that evidence in a broader context. Before the issue of appellant's competency arose, appellant had been convicted of crimes which involved fairly sophisticated planning, which is certainly not typical of mental retardation. The behavior which raised a doubt as to appellant's competency involved appellant's auditory and visual hallucinations and paranoid thoughts, which are symptoms of mental illness rather than mental retardation. Appellant's trial counsel, the prosecutor, the trial court and the experts appointed by the trial court all agreed that appellant suffered from mental illness. Over the course of the proceedings in the trial court, appellant's symptoms improved markedly when he was given psychiatric medications, demonstrating that he was in fact suffering from mental illness. There was thus overwhelming evidence that appellant had a mental illness which, when untreated, made him incompetent to stand trial.
Appellant points to only three scattered pieces of evidence of a developmental disability: (1) Dr. Chung's April 21, 2005 report, in which Dr. Chung refers to IQ tests taken by appellant and concludes that appellant is mentally retarded; (2) a report from the Department of Mental Health in 2006 which states that appellant "gives the appearance of having a much greater comprehension and understanding of the PC 1370 competency restoration materials than he actually has"; and (3) appellant's counsel's statement at an August 13, 2007 hearing that appellant was not only "mentally ill" but also "developmentally slow" and "retarded" and her statement at a June 9, 2009 hearing that appellant was "mentally retarded" as well as being "mentally ill." We consider each in turn.
i. Dr. Chung's report
Appellant is correct that Dr. Chung's 2005 report states that appellant is mentally retarded. As we explain below, this report was prepared for appellant's sanity trial, and the finding of mental retardation is of little if any use in determining appellant's competency to stand trial. The report came to be used in the competency proceedings as follows:
At an April 8, 2005 hearing related to trial preparation, appellant's counsel stated: "I've been getting these weird calls from [appellant] regarding seeing things in his food. He feels like he's being poisoned. . . . [¶] He can't look up at the ceiling. He can't look in my face." She added: "[A]pparently, he's hearing whatever these voices are." At that point, appellant was on psychiatric medication. The court suggested, and counsel agreed, that appellant should be re-evaluated by a doctor to make sure he was in appropriate housing.
About two weeks later, on April 20, 2005, a follow-up hearing was held. At that hearing, appellant's counsel declared a doubt as to appellant's competency to stand trial. She explained that appellant's condition had not improved, stating: "[F]or the past six weeks, we've not been able to have any conversations regarding - other than him thinking someone is going to kill him, thinking that his food is being poisoned, the issue that he's having these weird feelings inside. He just rambles on and on and on."
The court appointed Dr. Knapke and Dr. Chung to evaluate appellant's competency. Both doctors had been evaluating appellant for the sanity trial. The parties agreed that the court could decide the issue of competency on the two doctor's written reports.
Dr. Knapke evaluated appellant on June 14, 2005 and specifically addressed the competency issue. His June 15, 2005 report does not make any reference to developmental disability. Dr. Knapke found that appellant had a psychotic disorder and was paranoid of everyone around him. Dr. Knapke believed that appellant would not be able to rationally cooperate with his attorney. He concluded that appellant was not competent to stand trial.
There is nothing in the record to show that Dr. Chung expressed an opinion on appellant's competency to stand trial. It appears that the court used a report by Dr. Chung dated April 21, 2005. This report states that Dr. Chung last interviewed appellant on October 7, 2004, well before a doubt was declared as to appellant's competency. The report addresses appellant's sanity at the time of the crime; it does not address appellant's competency to stand trial in 2005. The report does contain Dr. Chung's opinion that appellant is mentally retarded. However, Dr. Chung also found that appellant "understood the nature of this evaluation and showed full cooperation."
Dr. Chung's finding of mental retardation was not substantial evidence which created a suspicion that appellant suffered from a developmental disability which impaired his competency to stand trial. Dr. Chung did not believe that appellant's developmental disability prevented him from understanding the nature of a psychiatric examination or cooperating with a psychiatrist who was working with his attorney. Thus, there was no reason for the court to suspect that appellant's disability would prevent him from understanding the nature of a trial or cooperating with his attorney.
ii. Department of Mental Health report
Appellant is correct that the report from the Department of Mental Health states that he appears to understand more than he actually does. The report attributes this to a language barrier, however. The report notes that the use of Korean interpreters greatly improved appellant's comprehension. The report added: "It is the opinion of the SVPP staff that we could go even further than the present "near-restoration" of competency by having one or more members of our clinical staff speak Korean like a native." SVPP did not have such a staff member, and recommended transfer to Patton State Hospital which then had two native-Korean-speaking psychiatrists. Thus, there is nothing in this report to create a suspicion that appellant had a developmental disability, particularly one that affected his competency to stand trial.
iii. Counsel's statements
Appellant is correct that his trial counsel referred to him as mentally retarded on two occasions. The references were made in passing, and counsel's clear concern was that appellant's mental illness made him incompetent to stand trial.
At a hearing on August 13, 2007, in conjunction with explaining why she could not urge appellant to withdraw his NGI plea, she described his family and, in passing, mentioned that it was her understanding that appellant was "developmentally slow" as a child. Later, as the discussion turned to competency, appellant's counsel stated: "I am under the belief that my client is mentally retarded and my client is mentally ill." She added: "So in terms of him not being competent right now, as far as competence, he's about as competent as he's going to get, as long as we can keep him medicated. I still have an issue with just the mental illness aspect of it." (Italics added.)
Appellant's counsel's comments, considered in context, show that counsel was not concerned that any mental retardation in appellant impaired his competency to stand trial. Her concern was that his mental illness was an issue. Her concern in this regard was that he would decompensate if he did not receive his medications while in jail.
At the June 3, 2009 hearing, the court expressed concern about appellant's state of mind. Appellant's counsel agreed that appellant's behavior was "rather odd and different from what it has been." She noted that he was agitated and stated that people were trying to kill him. She also stated: "I am lost to a certain extent because I can't gauge an understanding of him in this regard. What I do know is that the medical reports I do have are consistent. He is mentally retarded, mentally ill." The prosecutor agreed about the mental illness consensus, but did not agree that all the experts were in consensus that appellant was mentally retarded. She noted that the People's expert and other experts did not believe that appellant was mentally retarded. The court declared a doubt as to appellant's competency to stand trial.
The behavior that concerned appellant's counsel was related to his mental illness. Counsel mentioned the mental retardation only in passing. As the prosecutor then pointed out, there was no consensus that appellant was mentally retarded. At this point, appellant had spent a substantial period of time in psychiatric treatment and had responded well to psychiatric medications. There was nothing before the court to suggest that any developmental disability was impairing appellant's competency.
Even assuming for the sake of argument that the trial court should have appointed the director of the regional center to conduct an evaluation of appellant, we see no prejudice to appellant from the court's failure to do to. The purpose of the regional center evaluation requirement is to ensure that a developmentally disabled defendant's competence to stand trial is assessed by those having expertise with such disability. (People v. Leonard, supra, 40 Cal.4th at p. 1389.) Given that appellant's incompetence involved hallucinations and paranoia and in 2005, at least, he was unable to cooperate with Dr. Knapke or his attorney, there is no reason to believe that he would have been able to cooperate with a regional center specialist for an evaluation. Further, every doctor appointed by the court to evaluate appellant was aware of Dr. Chung's claim that appellant was mentally retarded and assessed appellant's competence with that in mind. These doctors were psychiatrists, but their evaluations showed that they had experience in evaluating a developmental disability involving mental retardation. For example, Dr. Hirsch provided a detailed explanation of the difficulties of obtaining accurate results using English IQ tests translated into Korean, while Dr. Knapke pointed out that depression and psychosis could impair cognitive functioning and if that were the case, cognitive functioning would return to normal once the mental illness was treated. The purpose of the statute was satisfied by these psychiatrist's evaluations.
The Court in Leonard mentions two other purposes for the regional center evaluation and appellant also contends that those purposes were not met. These purposes are to assist the trial court in determining where to confine a defendant before the competency hearing and where to place him if he is found incompetent. Here, appellant had been convicted of serious crimes involving great bodily harm, was suffering from hallucinations and was paranoid. Those considerations dictated that he be held in a secure facility where he could receive treatment for his mental illness, both before and after his competency hearing. Nothing a regional center evaluation could say could alter those constraints. Thus, there could be no prejudice to appellant from the lack of a housing/placement recommendation.
2. Jury trial waiver
As we discuss, ante, appellant contends that the trial court's finding of competency was not valid. He contends that he must therefore be considered incompetent when he waived his right to a jury trial, rendering that waiver invalid. In the alternative, he contends that the trial court abused its discretion in denying his July 2, 2009 motion to withdraw his jury waiver.
As we discuss, ante, the trial court properly found appellant to be competent. We see no abuse of discretion in the denial of appellant's motion.
"It is well established that a waiver of a jury trial, voluntarily and regularly made, cannot afterward be withdrawn except in the discretion of the court. (People v. Osmon (1961) 195 Cal.App.2d 151, 153, 154 ; People v. Melton (1954) 125 Cal.App.2d Supp. 901 [271 P.2d 962, 46 A.L.R.2d 914].) Absent special circumstances the court may deny a motion to withdraw such a waiver especially where adverse consequences will flow from the defendant's change of mind. In exercising its discretion the court may consider such matters as the timeliness of the motion to withdraw the waiver, the reason for the requested withdrawal and the possibility that undue delay of the trial or inconvenience to witnesses would result from granting the motion." (People v. Chambers (1972) 7 Cal.3d 666, 670-671.)
The trial court denied appellant's motion to withdraw the waiver because "It's a waiver that we previously took, and we've relied on that as far as scheduling is concerned." Trial started twenty days later, on July 22, 2009.
Here, the parties had not only relied on the jury trial waiver for scheduling purposes, but also for trial strategy. Prior to the jury trial waiver, the prosecutor planned to call the parents of the child who was kidnapped, the two administrators, the child's teacher, an employee of the taxi cab company, and someone who could testify about the circumstances of the arrest, all to provide background facts. The prosecutor also planned to put on evidence that appellant had drugged the child, but did not specify the form of that evidence. The trial court estimated the case in chief would last four to five days. Following the jury trial waiver, the prosecutor planned to submit on the trial transcripts for background material and to call only one witness, Dr. Hirsch. The court estimated that the trial would last two to three days.
Withdrawal of the jury waiver would necessarily have resulted in substantial delay. The prosecutor would have to locate the above-described witnesses, if possible interview them to see the state of their current recall, plan her examination of the witnesses and subpoena them. The victim and his parents, who had already waited almost a decade for this case to be complete, would wait longer. Further, at least one of appellant's experts, Dr. Chung, was very difficult to schedule. That factor, too, would contribute to delay. An additional factor, not present in most cases, was the possibility that appellant's mental illness could flare up again during the delay and render him incompetent to stand trial, further delaying the sanity trial. Accordingly, we see no abuse of discretion in the trial court's denial of appellant's motion.
3. Speedy trial
Appellant contends that he was denied his right to a speedy trial because he was confined beyond the constitutional and statutory limits for incompetence to stand trial. Appellant contends that the limits of his confinement were reached on July 11, 2008. Respondent contends that appellant has forfeited this claim.
We agree that appellant forfeited his right to a speedy trial. Absent an objection to delay, a defendant is presumed to consent. Further, a defendant must also move to dismiss the action in a timely manner. (People v. Wilson (1963) 60 Cal.2d 139, 146-148.) Appellant did neither.
Further, virtually all the delay in the trial of appellant's NGI plea was due to his periods of incompetency. Section 1370 does limit the time that a defendant may be held without trial due to incompetency, but appellant affirmatively rejected that protection. Section 1370 provides that, at the end of permitted confinement period, an incompetent defendant must be returned from the treatment center to the court. (In re Polk (1999) 71 Cal.App.4th 1230, 1237; § 1370, subd. (c)(1).) In some cases, the defendant may be released from custody. Section 1370 creates a procedure for the defendant to then be placed in a conservatorship under the Lanterman-Petris-Short Act when the person is charged with a felony involving death, great bodily harm, or a serious threat to the well-being of another person. (Id. at pp. 1237-1238; Welf. & Inst. Code, § 5008, subd. (h)(1)(B).) When presented with the option of conservatorship in October 2007, appellant rejected that protection, and opted to return to Patton in order to eventually be able to proceed with a sanity trial.
Even assuming for the sake of argument that appellant had not forfeited his claim, it would fail. In order for a defendant to claim that his state constitutional right to a speedy trial has been violated, the defendant must show that prejudice was caused by the delay in bringing him to trial. (People v. Lowe (2007) 40 Cal.4th 937, 942.) The burden then shifts to the prosecutor to justify the delay. If the prosecutor justifies the delay, the trial court "must balance the prejudice to the defendant resulting from the delay against the prosecution's justification for the delay." (Ibid.)
Here, appellant has offered no explanation of how the delay prejudiced his sanity trial. Further, even assuming that there was some minimal disadvantage, the disadvantage would be completely justified by the suspension of the proceedings to determine appellant's competency, an act necessary to protect his due process rights. (People v. Blair (2005) 36 Cl.4th 686, 711.) "Of course, the necessity of ascertaining a defendant's competency and arranging for any needed treatment are reasonable bases for prolonging pretrial incarceration beyond the presumptively prejudicial periods delineated in section 1382." (Craft v. Superior Court (2006) 140 Cal.App.4th 1533, 1544.)
Appellant's claim that his federal constitutional right to a speedy trial was violated would also fail. Under federal law, a delay of more than one year is generally found to be presumptively prejudicial. (Doggett v. United States (1992) 505 U.S. 647, 652, fn. 1.) Once such a delay is established, the trial court makes four inquiries: (1) whether the delay is uncommonly long; (2) whether the government or the criminal defendant is more to blame; (3) whether the defendant asserted his right to a speedy trial in due course; and (4) whether the defendant suffered prejudice as a result of the delay. (People v. Harrison (2005) 35 Cal. 4th 208, 226.)
Here, the delay was caused by the suspension of proceedings while appellant was incompetent, a delay required to protect his due process rights. There is no evidence that anyone is to blame for the delay. Appellant did not assert his right to a speedy trial until after the sanity trial was complete. Appellant has not identified any actual prejudice to the sanity trial from the delay. Thus, there was no violation of appellant's speedy trial rights under the federal Constitution.
Disposition
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ARMSTRONG, Acting P. J. We concur:
MOSK, J.
KRIEGLER, J.