Opinion
C069187
10-29-2019
THE PEOPLE, Plaintiff and Respondent, v. JAMES COOPER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 08F01450)
The prosecution charged defendant James Cooper, an intellectually disabled 17 year old, with 21 counts of carjacking, attempted carjacking, attempted murder, assault with a firearm, robbery, attempted robbery, and numerous enhancements arising from a crime spree he perpetrated on the nights of January 28, January 30, and February 1, 2008. At trial he was permitted to introduce expert testimony regarding the results of tests administered by the expert, including IQ tests, and how defendant's limited intellectual capacity affected his cognitive processes. A jury deadlocked on the counts involving the events on January 30, found him guilty of the remaining counts, and found the accompanying enhancements true. The trial court sentenced him to state prison for a term of 77 years eight months to life.
On appeal, he asserts the trial court impermissibly limited the scope of the expert's testimony, thereby depriving him of the ability to present a defense to the charges generally and the attempted murder charge in particular. We disagree and conclude the trial court's restrictions on the expert's testimony did not improperly impair his ability to defend.
During the pendency of this appeal, several statutory changes and a California Supreme Court decision became effective that necessitated supplemental briefing. The parties agree in their briefing that we must remand to permit the trial court to exercise its discretion under Senate Bill No. 620 (2017-2018 Reg. Sess.) (Senate Bill 620), passed in October 2017, to strike the firearm enhancements imposed by the trial court. The parties also agree in light of the defendant's age at the time of the offense, that Proposition 57, enacted by the people in November 2016, compels us to conditionally reverse the judgment and remand to the juvenile court with directions. In the event proceedings continue in adult court, and depending on the length of the sentence imposed, defendant may be entitled to the hearing prescribed by the California Supreme Court in People v. Franklin (2016) 63 Cal.4th 261 (Franklin).
FACTS
Defendant does not challenge the sufficiency of the evidence. The victims testified as follows:
Douglas Perera testified that on January 28, 2008, defendant approached him as he was sitting parked in his taxi and told him he might want a ride to Natomas. As Perera checked the fare, defendant pointed a black pull action 12-gauge shotgun in his direction, ordered him out of the car, and to empty his pockets. Defendant and his accomplices took Perera's wallet, calculator, change, and keys and drove off in the taxi. The taxi was found later that night with one of defendant's fingerprints on the driver's door.
Perera was unable to identify defendant in two photo lineups. He then worked with a forensic sketch artist to assemble a picture of the man with the shotgun. At trial, Perera testified he was 85 percent sure that defendant was the man with the shotgun.
Randy Hicks testified that on the night of February 1, 2008, he got off the light rail at the Marconi Arcade station. His partner, David Rivers, was waiting in a car to meet him. Once Hicks was in the car, defendant approached Rivers and motioned as if asking to use a cell phone. Defendant reached for the door handle, but Rivers locked the door. As Rivers began backing up the car, defendant walked to the front of the car and pulled a gun from underneath his jacket. He pointed it down, straight at the car, and waved it, as if indicating to them to exit from the car.
When Rivers continued to back up, defendant fired two shots, hitting the car hood and the driver's side door. Rivers suffered a slight bullet wound. Hicks called for emergency assistance.
Hicks and Rivers could not identify defendant in several lineups, nor could Rivers identify him at the 2010 preliminary hearing. Both identified defendant from photo stills made from the light rail surveillance video of defendant sitting on light rail with a shotgun on his lap. Hicks identified defendant at trial as the shooter with a purported 100 percent accuracy.
Defendant did not testify at trial. His defense was misidentification. An expert testified to all the vagaries and inaccuracies of eyewitness identification. However, as indicated, guilt is not disputed and the only contested issue defendant raises on appeal involves the testimony of a second expert who testified to defendant's mental capacity.
DISCUSSION
I
The Limitations of Expert Testimony Regarding Mental Functioning
Dr. Eugene Roeder had a brief, 20-minute conversation with defendant before administering a series of tests to determine defendant's intellectual capacity. He was aware that two previous psychiatrists had found that defendant was malingering. The only school records he reviewed were from when defendant was 10 years old and the only person he talked to was a technician who worked at the school with defendant, again when defendant was 10 years old. He did not speak to defendant's family.
Dr. Roeder submitted a report to the court in which he opined that defendant had an overall IQ of 63, with a resulting diagnosis of "mild mental retardation" or developmental disability. While defendant's verbal skills were on the low end of normal, he displayed significant difficulty with nonverbal performance, indicating he would "have a very difficult time thinking things through or making decisions. He also displayed a very restricted ability to respond to social cues and very limited reasoning ability."
The terms "mentally retarded" and "mental retardation," which appear throughout the record in this case, have been replaced in the statutory law with such terms as "developmental disability" and "intellectual disability." (See Assem. Bill No. 1472, approved by Governor, June 27, 2012 (2011-2012 Reg. Sess.); see also Sen. Amend. to Assem. Bill No. 2370 (2011-2012 Reg. Sess.) June 20, 2012.) We use the terms interchangeably, staying true to the record when appropriate, but mindful of the new sensitivity and consciousness that eschews use of "retardation" in favor of "developmental disability" or "intellectual disability," terms that better describe the same status.
Dr. Roeder concluded: "These intellectual test scores indicate [defendant's] cognitive functioning is severely limited, in particular his ability to process information, to think things through, to think in any other than a black and white manner and certainly to use planning and abstract thinking are all significantly compromised. As such, his ability to form specific intent, while not precluded, is dramatically less than that of most other people and very limited."
Following an Evidence Code section 402 hearing to determine the admissibility of his proffered testimony, the trial court ruled the doctor could testify about "the defendant's IQ, the test results, and I think the doctor can opine, as stated in his report, that the defendant's cognitive functioning is limited. And, in particular, his ability to process information, to think things through, to think in any way other than a black and white manner, and certainly to use planning and abstract thinking are all significantly compromised . . . I believe he can testify to that." But "[h]e cannot testify that the defendant's ability to form specific intent that is required for those charged crimes are -- I don't believe he can testify, are limited or that the defendant cannot form that specific intent." The court further cautioned that Dr. Roeder should be warned that he "cannot opine on the ultimate question, whether the defendant had that specific intent at the time of the crime or was able to have the specific intent at the time of the crime."
According to Dr. Roeder, defendant had significant limitations in cognitive functioning; he was "mentally retarded." While intellectual disability may diminish moral culpability, it does not categorically affect criminal liability. Intellectual disability and the state of mind required to impose criminal liability—mens rea—are not mutually exclusive. The law does take into account differences in cognitive functioning in determining mens rea, but in California statutes limit the extent to which mental impairment affects criminal responsibility.
Penal Code section 25 abolishes the defense of diminished capacity. Sections 28 and 29 also limit the admissibility of evidence of mental disease, mental defect, or mental disorder. Thus, section 28 states, in relevant part:
Undesignated statutory references are to the Penal Code
"(a) Evidence of mental disease, mental defect, or mental disorder, shall not be admitted to show or negate the capacity to form any mental state, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation or malice aforethought, with which the accused committed the act. Evidence of mental disease, mental defect or mental disorder is admissible solely on the issue of whether or not the accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged."
Section 29 states: "In the guilt phase of a criminal action, any expert testifying about a defendant's mental illness, mental disorder, or mental defect shall not testify as to whether the defendant had or did not have the required mental states, which include, but are not limited to, purpose, intent, knowledge, or malice aforethought, for the crimes charged. The question as to whether the defendant had or did not have the required mental states shall be decided by the trier of fact."
Defendant asserts that his most fundamental right under the Fourteenth Amendment to present a defense was unduly restricted by the trial court's ruling limiting the expert clinical psychologist's testimony. Defendant concedes the trial court allowed the expert to testify to defendant's IQ, his test results, and how limited intellectual capacity affected his cognitive processes, but he argues the expert was not allowed to testify to the effect of his mental condition on his state of mind at the time of the offenses. He claims that "[w]ithout that crucial connection between the condition and its effect on [defendant] at the time of the offenses," he was denied the opportunity to present a substantial defense to the charges and, in particular, to the attempted murder charge. A review of case decisions applying the aforementioned statutes and a close examination of the court's precise rulings in this case persuade us that defendant exaggerates the extent of the court's restrictions on his expert's testimony. He had ample freedom to assert his defense; his claim is without merit.
In People v. Coddington (2000) 23 Cal.4th 529, the Supreme Court rejected "appellant's claim that exclusion of expert testimony on the ultimate question of fact as to whether appellant did form those mental states denied him the right to present a defense" because "[a]ll authority is to the contrary. [Citations.] Sections 28 and 29 do not preclude offering as a defense the absence of a mental state that is an element of a charged offense or presenting evidence in support of that defense. They preclude only expert opinion that the element was not present." (Coddington, at p. 583, overruled on another point in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) Or, as the court had earlier said, "By its terms, section 29 prohibits an expert witness from giving an opinion about the ultimate fact whether a defendant had the required mental state for conviction of a crime. It prohibits no more than that." (People v. Ochoa (1998) 19 Cal.4th 353, 431.) The question thus posed is whether the trial court's ruling is "more than that."
People v. McCowan (1986) 182 Cal.App.3d 1, provides a useful exemplar because the trial court expressly relied on sections 25, 28, and 29 in limiting the testimony by the defense expert. The court ruled the defense could not " 'ask any psychiatrists or other expert on mental condition a question as to whether or not the defendant had the capacity to form a mental state in issue here on the date of the alleged commission of the offense' " or ask " 'whether or not the defendant did or did not form the required mental state at the time of the alleged commission of the act, . . .' " (McCowan, at p. 11.)
A doctor was allowed to testify that the defendant's mental disorder had a significant impact on his mental process on the night of the shootings; that the defendant was out of control, unable to think clearly, or to make judgments. (McCowan, supra, 182 Cal.App.3d at p. 13.) The Court of Appeal found no error, explaining: "Defendant misconstrues the scope of the prohibition contained in section 29. Contrary to his assertion, the statute does not forbid an expert from stating his opinion about the accused's mental state. [The doctor] stated his opinion that, as a result of defendant's mental disorder, he was out of control when he committed the offenses. Section 29 precluded [the doctor] only from testifying whether defendant had one of the mental states required for the offenses . . . That ultimate determination must be made by the trier of fact." (McCowan, at p. 14.)
It is clear that an expert cannot testify that a criminal defendant entertained a specific intent at the time of the offense. It is far less clear, however, when an expert is asked a slightly more general question related to the defendant's capacity to entertain a specific intent or, as in this case, to opine that his ability to form specific intent is "dramatically less than that of most other people and very limited." Defendant argues he "should have been permitted to present expert evidence specifically as to his mental condition at the time of the offense and in relation to the offense, so long as the expert did not testify on [his] capacity to have, or actually having, the intent required to commit the crime." In this case, we need not split those hairs because we conclude any error in limiting the expert's testimony was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 .)
As described above, the trial court afforded defendant the opportunity to explore the doctor's assessment of his intellectual capacity in considerable depth. The expert explained the type of tests that were administered and the difficulty defendant had in completing them. With an IQ of 63, defendant is described as mildly mentally retarded or developmentally disabled. The expert opined that defendant's cognitive skills were severely limited, that is, he could not think abstractly and he thought in black and white rather than in shades of gray. Although a person with an IQ of 63 can "follow basic instruction" and complete "repetitive tasks," the doctor advised the jury that defendant was incapable of living independently or rational decision-making.
From this testimony, the jury could readily infer that defendant could not entertain the specific intent to commit the charged crimes. We do not accept defendant's argument that by restricting the expert's testimony to a description of defendant's mental condition and its characteristics, the trial court "eviscerated any force that the testimony would have had, reducing it to an academic recitation, rather than a basis from which the jury could infer [defendant's] lack of requisite intent." Given that the expert could not have opined that defendant did not, or could not, entertain the specific intent at the time of the shooting, we conclude there was no error in disallowing testimony that simply would have made a more explicit connection between his mental condition and his intent. Even accepting defendant's assertion that such testimony was permissible, its exclusion was harmless beyond a reasonable doubt in light of the substantial leeway given the defense to offer expert testimony and argue concerning defendant's mental functioning.
II
Post-trial Legal Developments Regarding Juvenile Defendants
In his initial briefing, defendant challenged the constitutionality of his sentence. The Attorney General conceded the point. Since then, the California Legislature and the California Supreme Court have imposed limits on how long a juvenile can be sentenced to prison without the possibility of parole. The new limitations displace sentences that were previously imposed. Our Supreme Court took note of the altered sentencing landscape in Franklin, supra, 63 Cal.4th 261, and held that recently enacted sections 3051 and 4801 of the Penal Code, which entitle juvenile offenders to a parole hearing in their 25th year in prison had effectively "superseded" the 50-year-to-life sentence the defendant had received and rendered "moot" any constitutional challenge under the rationale of Miller v. Alabama (2012) 567 U.S. 460 . The court explained: "Penal Code sections 3051 and 4801—recently enacted by the Legislature to bring juvenile sentencing in conformity with Miller, Graham [v. Florida (2010) 560 U.S. 48], and [People v. ]Caballero [(2012) 55 Cal.4th 262]—moot Franklin's constitutional claim. Consistent with constitutional dictates, those statutes provide Franklin with the possibility of release after 25 years of imprisonment (Pen. Code, § 3051, subd. (b)(3)) and require the Board of Parole Hearings . . . to 'give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity' (id., § 4801, subd. (c)). In light of this holding, we need not decide whether a life sentence with parole eligibility after 50 years of incarceration is the functional equivalent of an LWOP [life without possibility of parole] sentence and, if so, whether it is unconstitutional in Franklin's case." (Franklin, at p. 268.)
In brief, section 3051 now compels a juvenile's sentence to be reconsidered at regular time intervals and recalibrated to take account of all of the youth-related factors that mitigate culpability and forecast potential growth and rehabilitation; the disconnect between egregiously long sentences and immature culpability vanishes. There is no Eighth Amendment impediment to lengthy sentences when they remain subject to review and the youthful offenders have the opportunity for meaningful review and release from prison. Whatever remains of defendant's Eighth Amendment argument must fall. Franklin Hearing
While defendant's long sentence was not violative of the Eighth Amendment, the court in Franklin took note of language in section 3051 that compels the youth offender parole board hearing to "provide for a meaningful opportunity to obtain release" (§ 3051, subd. (e)) and language in section 4801 directing the Board of Parole Hearings (Board) to "give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner" (§ 4801, subd. (c)). In the court's estimation, the statutes contemplated a before-and-after comparison of the juvenile at the time of the crime and the adult appearing for parole consideration. Section 3051, subdivision (f)(2) provides that "[f]amily members, friends, school personnel, faith leaders, and representatives from community-based organizations with knowledge about the individual before the crime . . . may submit statements for review by the board." Section 3051, subdivision (f)(1) provides that any "psychological evaluations and risk assessment instruments" used by the Board in assessing growth and maturity "shall take into consideration . . . any subsequent growth and increased maturity of the individual."
Because it was not clear that Franklin "had sufficient opportunity to put on the record the kinds of information that sections 3051 and 4801 deem relevant at a youth offender parole hearing," the Supreme Court remanded his case to the trial "for a determination of whether Franklin was afforded sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing.
"If the trial court determines that Franklin did not have sufficient opportunity, then the court may receive submissions and, if appropriate, testimony pursuant to procedures set forth in section 1204 and rule 4.437 of the California Rules of Court, and subject to the rules of evidence. Franklin may place on the record any documents, evaluations, or testimony (subject to cross-examination) that may be relevant at his eventual youth offender parole hearing, and the prosecution likewise may put on the record any evidence that demonstrates the juvenile offender's culpability or cognitive maturity, or otherwise bears on the influence of youth-related factors. The goal of any such proceeding is to provide an opportunity for the parties to make an accurate record of the juvenile offender's characteristics and circumstances at the time of the offense so that the Board, years later, may properly discharge its obligation to 'give great weight to' youth-related factors (§ 4801, subd. (c)) in determining whether the offender is 'fit to rejoin society' despite having committed a serious crime 'while he was a child in the eyes of the law' [Citation]." (Franklin, supra, 63 Cal.4th at p. 284.)
Concern with defendant's intellectual capacity led to testing and a psychological examination, thus that it is possible the factors mentioned in sections 3051 and 4801, the same factors identified in Miller and Graham, were well documented at trial. Nonetheless, assuming his case is transferred to adult court, defendant should be afforded an opportunity to present evidence of characteristics and circumstances that might be relevant in future juvenile parole board parole proceedings.
Senate Bill 620 and Proposition 57
Two additional changes in the law also potentially affect defendant's sentencing.
Senate Bill 620
Effective January 1, 2018, Senate Bill 620 (Stats. 2017, ch. 682, §§ 1-2), permits a trial court to strike a firearm enhancement allegation or finding made pursuant to sections 12022.5 and 12022.53: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." The measure applies retroactively. (People v. Woods (2018) 19 Cal.App.5th 1080, 1089-1091.) We agree with the parties that the trial court must be afforded the opportunity to exercise this sentencing discretion.
Proposition 57
While this case was pending, Proposition 57, the "Public Safety and Rehabilitation Act of 2016," was passed by the people and amended the Welfare and Institutions Code to eliminate direct filing by prosecutors in adult criminal court. (Voter Information Guide, Gen. Elec. (Nov. 8, 2016) text of Prop. 57, pp. 141-145.) Certain categories of minors—which would include defendant—can still be tried in criminal court, but only after a juvenile court judge conducts a transfer hearing to consider various factors such as their age, maturity, intellectual capacity, mental and emotional health, degree of criminal sophistication, prior delinquent history, whether they can be rehabilitated, and the circumstances and gravity of the offense alleged. (Welf. & Inst. Code, § 707, subd. (a).)
Proposition 57 applies retroactively to this case and requires us to conditionally reverse the judgment entered below and remand for a determination by the juvenile court of whether his case should proceed in juvenile or adult court. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299.)
DISPOSITION
We conditionally reverse defendant's convictions and sentence, and remand the matter to the juvenile court for a juvenile transfer hearing to determine his suitability for treatment within the juvenile justice system within 90 days of the issuance of our remittitur. (Welf. & Inst. Code, § 707.)
If the juvenile court determines that it would not have transferred defendant to a court of criminal jurisdiction, then defendant's criminal conviction and enhancements will be deemed to be juvenile adjudications. And the court shall impose an appropriate juvenile disposition after a dispositional hearing. (Welf. & Inst. Code, §§ 602, 702, 706.) The juvenile court shall exercise the discretion accorded by Senate Bill 620 in deciding whether to strike one or more of the firearm enhancements. (People v. Phung (2018) 25 Cal.App.5th 741, 763.) Defendant's request for the trial court to hold a hearing pursuant to Franklin will be rendered moot.
If the juvenile court determines that it would have transferred defendant to a court of criminal jurisdiction, then the matter shall be transferred to the criminal court and defendant's conviction shall be reinstated. The court shall then resentence defendant after exercising its discretion under sections 12022.5, subdivision (c) and 12022.53, subdivision (h) to strike one or more of the firearm enhancements. If the trial court declines to exercise its discretion to dismiss or strike the firearm enhancements, the court must then determine, pursuant to Franklin, whether defendant was afforded an adequate opportunity to make a record of information that will be relevant to the Board at his eventual youth offender parole hearings, and act accordingly.
The trial court shall prepare an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation.
RAYE, P. J. We concur: HULL, J. MAURO, J.