Opinion
E068196
08-15-2018
THE PEOPLE, Plaintiff and Respondent, v. JAY RYLAND DOSSEY, Defendant and Appellant.
Conrad Petermann, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Kristine A. Gutierrez, Deputy Attorney 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SWF1400302) OPINION APPEAL from the Superior Court of San Bernardino County. Richard F. Toohey, Judge. Affirmed. Conrad Petermann, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Kristine A. Gutierrez, Deputy Attorney General, for Plaintiff and Respondent.
I.
INTRODUCTION
On December 29, 2013, defendant and appellant, Jay Ryland Dossey, was out on bail for a firearm offense, when he went on a one-hour-long shooting spree in his home, while his three young children, his wife, and his wife's friend, Anita, were huddled together in the children's bedroom. On March 7, 2014, while he was in custody for the shooting spree, defendant battered another inmate so severely that the inmate suffered seizures and lost consciousness. These events resulted in two criminal actions that were consolidated in an October 29, 2014, information that listed a total of 19 counts, which charged defendant with the following offenses:
Counts 1 through 17 concerned the offenses defendant committed on December 29, 2013. They consisted of five counts of assault with an assault weapon (Pen. Code, § 245, subd. (a)(3); counts 1-5); three counts of willful child endangerment (Pen. Code, § 273a, subd. (a); counts 6-8); one count for willful discharge of a firearm in a grossly negligent manner (Pen. Code, § 246.3, subd. (a); count 9), with a special allegation of personal weapon use in the commission of the offense (Pen. Code, §§ 667, 1192.7, subd. (c)(8)); five counts of firearm possession while addicted to narcotics (Pen. Code, § 29800, subd. (a)(1); counts 10, 12, 14, 15, 16); two counts of grand theft of a firearm (Pen. Code, § 487, subd. (d)(2); counts 11, 13); and one count for possession of ammunition (Pen. Code, § 30305, subd. (a); count 17). Counts 18 and 19 concerned the offense defendant committed on March 7, 2014. They consisted of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4); count 18) and criminal battery (Pen. Code, § 243, subd. (d); count 19) with an infliction of great bodily injury charge (Pen. Code, §§ 667, 1192.7, subd. (c)(8)). Defendant was further charged with having committed the offenses in counts 1 through 17 while he was out of custody on bail (Pen. Code, § 12022.1) and with serving a prior prison term (Pen. Code § 667.5. subd. (b)) for possession of a controlled substance, in violation of Health and Safety Code section 11377, subdivision (a).
Defendant initially pled not guilty to all charges and denied the enhancements. However, on the first day of trial, defendant withdrew his not guilty plea and pled guilty to all of the above-referenced charges. He also admitted the enhancements and the one prison prior. Defendant was sentenced to a total of 24 years in state prison.
On appeal, defendant seeks reversal of his sentence and remand of his case for resentencing. Defendant asserts his attorney rendered ineffective assistance of counsel (IAC) by failing to seek a lesser sentence due to overcharging by the prosecution and in light of defendant's mental health history.
On November 14, 2017, defendant filed a petition for writ of habeas corpus in this court (In re Jay R. Dossey, E069469), alleging his trial attorney provided constitutionally deficient representation by failing to prepare for trial, to elect between trial or a plea, and to mitigate his sentence based on insanity defense evidence. Defendant also alleged that his trial attorney failed to challenge the prosecution's overcharging of the case. On November 16, 2017, this court ordered that defendant's habeas petition be considered with this appeal, for the sole purpose of determining whether an order to show cause should issue. We will resolve by separate order defendant's habeas petition and his December 18, 2017, request for judicial notice of the record and the briefs filed on appeal.
We conclude defendant has not demonstrated IAC and affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Defendant's December 29, 2013, One-hour-long Shooting Spree and Aftermath
When defendant returned home around 7:00 p.m., on December 29, 2013, he was agitated, behaving in a paranoid manner, and seemed to be high on methamphetamines. Defendant was home with his wife and their three children, who were between one and four years old. To help calm down defendant, his wife called Anita over to the home. Defendant's wife and Anita tried to distract defendant, but they were unsuccessful.
Around 9:30 p.m., defendant grabbed two firearms, one of them an AR-15 rifle, and later armed himself with two knives. Defendant began shooting in the master bedroom around 11:00 p.m. He fired his first shot through the wall of the master bedroom, hitting a fish tank on the other side, where defendant's one-year-old son had been standing only a moment earlier. Defendant shattered the fish tank's glass and spilled all its contents onto the floor. Defendant then continued to fire shots throughout the interior of the home for the next hour, while defendant's wife, children, and Anita huddled together in the children's bedroom. Much of defendant's shooting spree was recorded by four security cameras installed in the home.
Around 11:30 p.m., Anita collected her belongings and walked into the dining room, where defendant confronted her. She raised her hands up and asked defendant not to shoot when he pointed the rifle at her. While defendant paced around the dining room, keeping his weapon pointed at her, Anita picked up her purse and left the home. Defendant continued shooting inside the home after Anita left.
Defendant's two-year-old child began to cry and walked to the doorway of the children's bedroom, where defendant was in view. Defendant ordered the child to reenter the children's bedroom and he continued to fire his weapon. Defendant stopped shooting around midnight, told his children he loved them, and left the home. Defendant had shot holes throughout the home, leaving bullet casings in almost every room. Defendant caused the most extensive damage in the hallway outside the children's bedroom. The children's bedroom did not, however, have any bullet holes or casings.
After leaving his home, defendant broke into his neighbor's house through a window. Defendant told his neighbor that someone was trying to kill his family. Defendant's neighbor held him at gunpoint until sheriff deputies arrived. Defendant made several unsolicited statements to the deputies. First, defendant said he was "high." Defendant then said, "'You gotta check on my family; someone is trying to kill them,'" as he was being placed in the patrol car. Finally, defendant yelled that someone was in the patrol car trying to kill him. The deputies determined that defendant was under the influence of a controlled substance. Defendant admitted having used methamphetamines 25 hours before the arrest.
Sheriff deputies investigated defendant's home and noted the numerous bullet holes and shell casings throughout the home, as well as the shattered fish tank. In the master bedroom, they found two stolen weapons, a .380 Ruger pistol and a semiautomatic Smith and Wesson M&P AR-15 rifle, along with two .22-caliber Ruger rifles and a .22-caliber Derringer handgun. Deputies also found various types of ammunition corresponding to the various weapons. They discovered the surveillance system network video recorder installed in the home. They retrieved the security camera's video recording of the shooting spree as evidence. Later, they interviewed defendant's former nanny, who claimed defendant had taken her .380 Ruger pistol and her semiautomatic Smith and Wesson M&P AR-15 rifle without permission.
B. Defendant's March 7, 2014, Attack on Another Jail Inmate
On March 7, 2014, defendant and another jail inmate attacked a third inmate (the victim) at the correctional facility in Banning where they were all in custody. Joined by the second inmate, defendant cornered the victim and punched, kicked, and kneed the victim in the head and chest, until a deputy sheriff ordered the two to stop. The victim was found to be severely injured, having multiple lacerations on his head, bruising to his left eye, and a possible concussion. The victim was also unresponsive and appeared to be suffering from a seizure when he received initial treatment. The victim was nearly in a comatose state when he arrived at the hospital and was placed on a breathing ventilator. Later, the victim told a deputy that he did not know who had attacked him or why, since he got along with the other inmates.
C. Defendant's Criminal Proceedings Prior to Trial and Sentencing
On April 27, 2015, the court declared its own doubt regarding defendant's competency to stand trial and granted the defense attorney's oral Penal Code section 1368 motion. The court suspended defendant's criminal proceedings and appointed two psychologists to address the section 1368 issue: Dr. Robert L. Suiter and Dr. Maurizio Assandri.
Unless otherwise noted, all statutory references are to the Penal Code.
Dr. Suiter was only given defendant's felony complaints prior to interviewing defendant for trial competency. Dr. Suiter nonetheless concluded after interviewing defendant that there was no evidence defendant suffered from an organic brain disorder or a severe mental disorder, or that defendant was psychotic. Dr. Suiter noted that defendant was unlike a genuinely psychotic subject in that he was outspoken about his paranoia and alleged hallucinations, but unwilling to provide basic personal information, and he was "clearly taken back" when Dr. Suiter asked him about the alien he was allegedly hallucinating. Defendant was also indignant over Dr. Suiter possibly suggesting that he was "'making . . . up" his psychotic symptoms, a reaction Dr. Suiter considered uncharacteristic of a truly psychotic individual. Dr. Suiter additionally noted that, while defendant complained of auditory and visual hallucinations, he had been prescribed only antidepressant medications, not the antipsychotic medications defendant claimed he was prescribed by professionals since his arrest. Dr. Suiter inferred from this evidence that defendant was malingering and was competent to stand trial. Dr. Assandri, on the other hand, was given with defendant's medical and psychiatric records, not defendant's police record. Like Dr. Suiter, Dr. Assandri was unsure of defendant's psychotic symptoms and independently concluded defendant was exaggerating their intensity as a maladaptive means of asking for help. Dr. Assandri also concluded that defendant's psychotic symptoms might have been drug induced. Upon receipt of Dr. Suiter's and Dr. Assandri's reports on June 5, 2015, the trial court found defendant competent to stand trial.
D. Defendant's Trial and Sentencing Hearing
On January 24, 2017, the first day of trial, defendant withdrew his not guilty plea and pled guilty to all charges in the People's October 29, 2014, information, which included charges for the March 7, 2014, attack. Defendant also admitted all the enhancement allegations and a prison prior.
At the March 24, 2017, sentencing hearing, the trial court announced it had reviewed the People's sentencing brief, the sentencing report, and the probation report. The trial court then heard argument from defense counsel.
Defense counsel argued that defendant should be sentenced to only 15 years in prison, that is, less than half the maximum sentence of 31 years for all 19 counts. Defense counsel maintained that a sentence of less than half the maximum term would constitute the customary leniency extended to defendants who plead guilty "to a double digit case." Defense counsel argued that defendant's guilty plea should warrant leniency because it conserved judicial resources, secured a conviction for the prosecution, and spared the victims the trauma of testifying before a jury. Defense counsel also insisted that, despite the facts of the case, defendant intended only to protect his children during his shooting spree, not harm them. Finally, defense counsel drew the court's attention to defendant's probation report in which defendant expressed "deep remorse" for the consequences of his shooting spree.
The trial court stated it would do its "best to follow the sentencing rules," and expressed its belief that defendant's case presented an "aggravated situation." The court summarized defendant's criminal history as being "extensive," "with multiple convictions for substance abuse and theft," along with "two prior prison commitments out of Nevada and California." The court noted defendant's arrest and release on bail in San Diego, just one week before his shooting spree, when defendant brandished a firearm he had stolen from a friend. The court also noted defendant's March 7, 2014, assault that left another inmate in a comatose state. The court concluded that the circumstances of defendant's offenses were "very serious," denied defendant probation, and sentenced defendant to a total of 24 years in state prison. The court expressly arrived at defendant's sentence by considering the aggravating factors listed in California Rules of Court, rule 4.421(a)(1), (b)(1), and (b)(2).
E. Defendant's Probation Report
Defendant's probation report outlined defendant's account of his history of mental disorder and his controlled substance abuse. Defendant believed he suffered from a mental health disorder but had not been properly diagnosed. He claimed he sometimes "hears things" and claimed he was prescribed psychotropic medication for bipolar disorder, schizophrenia, and psychosis since his arrest. Defendant also acknowledged drinking alcohol on a regular basis when he was associating with other drinkers; using medical marijuana for a back injury; using heroin once, "'acid'" once or twice, and cocaine occasionally in his teens; and using ecstasy occasionally and methamphetamines "'a lot'" until December 2013.
III.
DISCUSSION
Defendant contends that his defense attorney provided him ineffective assistance by failing to argue for a lower sentence based on (1) the prosecution's unwarranted overcharging of the case, and (2) defendant's history of mental disorder. Defendant contends these failures also rendered his sentence illegal and unconstitutional under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and the analogous provisions of the California Constitution (Cal. Const., art. I, §§ 1, 7, 15, 16, 17).
See People v. Ledesma (1987) 43 Cal.3d 171, 215 ("Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel."). --------
The People assert that defendant's IAC claim fails because defendant cannot demonstrate two essential elements, i.e., his attorney's deficient performance or the likelihood of a more favorable outcome but for his attorney's deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694 (Strickland).) The People contend that defendant's trial attorney effectively represented him at the sentencing hearing by prudently choosing to argue for a lesser sentence based on other mitigating factors, such as defendant's decision to plead guilty to all counts, his intention at the time of his principal offense, and his remorse. The People also maintain that the trial court was aware of defendant's history of mental disorder when it issued its sentence on offenses whose aggravated nature harmed multiple victims. Given the court's knowledge, the People argue that a more favorable sentence would have been unlikely. We agree with the People.
A. Applicable Law—IAC
To establish an IAC claim, defendant must show by a preponderance of the evidence that his attorney's performance was deficient in terms of "prevailing professional norms," and that he suffered actual prejudice because of such deficient performance. (People v. Mickel (2016) 2 Cal.5th 181, 198; People v. Angel (2017) 9 Cal.App.5th 1107, 1112; Strickland, supra, 466 U.S. at pp. 687-688, 693-694.) To demonstrate deficient performance, defendant bears the burden of showing by a preponderance of the evidence that his attorney's performance fell below the objective standard of reasonableness established by "'"'"'prevailing professional norms.'"'"'" (People v. Washington (2017) 15 Cal.App.5th 19, 25; Angel, supra, at p. 1112.) The objective standard of reasonableness that defendant must address is not what the "'"'best lawyers would have done'"'" nor what "'"'most good lawyers would have done,'"'" but what a reasonable lawyer could have done under the same circumstances. (Angel, supra, at p. 1112.) To demonstrate prejudice, defendant bears the burden of showing a reasonable probability that, but for his attorney's deficient performance, the outcome of the proceeding would have been different. (Mickel, supra, at p. 198; People v. Lopez (2008) 42 Cal.4th 960, 966; In re Harris (1993) 5 Cal.4th 813, 833.) "'"'A reasonable probability is a probability sufficient to undermine confidence in the outcome.'"'" (In re Thomas (2006) 37 Cal.4th 1249, 1256; People v. Anderson (2001) 25 Cal.4th 543, 569; People v. Ledesma, supra, 43 Cal.3d at p. 217; Strickland, supra, at p. 694.)
As stated below, we find on this record that defendant cannot establish IAC for either the omission of his history of mental disorder or the decision not to argue "the unwarranted overcharging and . . . exaggeration of . . . charges" as mitigating factors.
B. No IAC for Omission of Defendant's History of Mental Disorder
Defendant contends he would have received a lesser sentence but for his defense attorney's failure to present the trial court potentially mitigating evidence contained in his history of mental disorder. We disagree. On an IAC claim, we reverse a judgment "'"'only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for [his] act or omission.'"'" (People v. Viray (2005) 134 Cal.App.4th 1186, 1212; People v. Lucas (1995) 12 Cal.4th 415, 442.) The record in this case reflects that presenting defendant's history of mental disorder as a basis of a temporary insanity defense or as a mitigating factor in sentencing would have lacked merit, and "[i]t is not incumbent upon trial counsel to advance meritless arguments." (People v. Constancio (1974) 42 Cal.App.3d 533, 546.)
A mental disorder is a mitigating factor in sentencing if it significantly reduces culpability for crime. (Cal. Rules of Court, rule 4.423(b)(2).) A mental disorder that significantly reduces a defendant's culpability is the kind addressed by an insanity defense. (§§ 25-29.8) An insanity defense is available only to a defendant with a "'settled mental disease or defect.'" (People v. McCarrick (2016) 6 Cal.App.5th 227, 247.) An insanity defense is not available to a defendant whose condition was the result of controlled substance abuse or drug addiction. (§ 29.8; McCarrick, supra, at p. 247.)
The record reflects that neither defendant nor his defense attorney could have relied on defendant's history of mental disorder as a basis of a temporary insanity defense or as a mitigating factor in sentencing. Defendant was not diagnosed with a settled mental disease or defect by either Dr. Suiter or Dr. Assandri. Dr. Suiter found that defendant showed no evidence of psychosis or an organic brain disease, and Dr. Assandri concluded that defendant's psychotic symptoms were possibly drug induced. Both Dr. Suiter and Dr. Assandri independently concluded that defendant was malingering and not suffering from a settled mental disease or defect. Defendant was also paranoid on the night of his shooting spree because of controlled substance abuse, not because of a settled mental disease or defect. Moreover, defendant was by law "conclusively presumed to have been sane at the time of the commission of the offense charged," because he initially pled not guilty to all 19 counts charged against him instead of pleading not guilty by reason of insanity. (§ 1016.)
Defendant argues nonetheless that his defense attorney should have raised with the trial court a concern over the opinions of Dr. Suiter and Dr. Assandri, since neither was provided all the background information necessary to arrive at an accurate diagnosis. Dr. Suiter was provided only defendant's felony complaints, while Dr. Assandri was provided defendant's medical and psychiatric records, but not defendant's police record. Defendant maintains that his defense attorney should have sought to retain an independent expert instead.
Defendant, however, carries the burden of sustaining a charge of inadequate or ineffective representation based on a "'"demonstrable reality and not a speculative matter."'" (People v. Mesa (2006) 144 Cal.App.4th 1000, 1007.) Defendant must overcome the presumption that the challenged action might be considered sound trial strategy, under the circumstances. (Ibid.; Strickland, supra, 466 U.S. at pp. 689, 694.) Under the circumstances, whether an independent expert might have arrived at a diagnosis more advantageous to defendant is an entirely speculative matter. A more advantageous diagnosis would also have been unavailing in view of the correlation between defendant's offenses and his controlled substance abuse.
Furthermore, defendant's own history of mental disorder was outlined in the probation report, which the trial court reviewed. The court is thus presumed to have been aware of defendant's history of mental disorder, since the record does not indicate otherwise. (Cal. Rules of Court, rule 4.409.) The trial court properly exercised its discretion in choosing not to impose a lesser sentence on defendant. Therefore, regarding the omission of his history of mental disorder, defendant cannot demonstrate either essential element of his IAC claim, namely, his attorney's deficient performance or the likelihood of a more favorable outcome but for his attorney's deficient performance. (Strickland, supra, 466 U.S. at pp. 687-688, 693-694.)
C. No IAC for Decision Not to Argue Unwarranted Overcharging of the Case
Defendant also contends he was deprived of effective assistance of counsel because his defense attorney failed to argue that the prosecution overcharged the case on the October 29, 2014, information. Again, we disagree that this failure constitutes deficient performance or actual prejudice.
Whom to charge, what charges to file and pursue, and what punishments to seek are within the sole discretion of the prosecutor. (Steen v. Appellate Division of Superior Court (2014) 59 Cal.4th 1045, 1053-1054; Dix v. Superior Court (1991) 53 Cal.3d 442, 451.) The prosecutor's decision about filing criminal charges is not generally subject to judicial supervision. (People v. Childs (2013) 220 Cal.App.4th 1079, 1104; Manduley v. Superior Court (2002) 27 Cal.4th 537, 552.) Only when the decision to prosecute has been made, does the process that leads to acquittal or sentencing fall within the discretion of the judiciary. (Manduley, supra, at p. 552.) In sentencing, the trial court exercises its discretion under section 1170, subdivision (b), to select terms of imprisonment by considering aggravating or mitigating circumstances obtained from, among other sources, the case record, the probation officer's report, and any evidence introduced at the sentencing hearing. (Cal Rules of Court, rule 4.420(b).)
The trial court in this case stated it would follow the sentencing rules and noted the harm defendant caused to multiple victims, defendant's prior convictions, and the separate violations of defendant's weapons prohibition. The circumstances of defendant's offenses could be classified under the sentencing rules as conditions aggravating defendant's culpability: (1) defendant's victims sustained or were threatened with great bodily injury; (2) defendant was armed with weapons; and (3) defendant's child victims were "particularly vulnerable." (Cal. Rules of Court, rule 4.421(a)(1)-(a)(3).) Defendant's offenses also constituted "a serious danger to society" and were the latest in a series of crimes of "ever increasing seriousness." (Cal. Rules of Court, rule 4.421(b)(1), (b)(2).) Moreover, because defendant's prior narcotics conviction barred him from possessing any firearms (§ 29800, subd. (a)(1)), each of the firearms that defendant illegally possessed could correspond to a distinctly charged count.
Accordingly, with respect to performance, the defense attorney argued at the sentencing hearing that defendant should only receive a 15-year sentence because he had ultimately pled guilty to all 19 counts and thus conserved public resources and spared his victims the distress of testifying at trial. He also maintained that defendant's genuine, albeit misguided intention during the shooting spree was to protect his children, not harm them, and that defendant was filled with remorse for his actions. Defendant's guilty plea, intention, and remorse were among a limited range of mitigating circumstances that the defense attorney could emphasize to justify a lesser sentence for defendant. (See, e.g., Cal. Rules of Court, rule 4.423(a)(8) ["The defendant was motivated by a desire to provide necessities for his or her family or self. . . ."].) In so doing, the defense attorney demonstrated his solid grasp of the sentencing rules and how they applied to the facts of the case. The defense attorney made a strategic choice among limited plausible options for mitigating what the court characterized as "an aggravated situation." What the defense attorney did was what a reasonable lawyer could have done under the same circumstances and thus was virtually unchallengeable as deficient performance. (See Strickland, supra, 466 U.S. at p. 690.)
Furthermore, concerning actual prejudice, the circumstances of defendant's offenses disposed the court to expressly consider the aggravating factors listed in California Rules of Court, rule 4.421(a)(1), (b)(1) and (b)(2). The court also considered defendant's theft and possession of numerous firearms. In considering the aggravating factors of California Rules of Court, rule 4.421(a)(1), (b)(1) and (b)(2), and in sentencing defendant on all the firearm counts, the court acknowledged the separate dangers defendant posed to each of his victims, three of whom were children, as well as the separate dangers he posed to the public by his theft and possession of numerous firearms. The court by this means assented to both the number and nature of the prosecution's charges. Since the trial court's exercise of its sentencing discretion coincided with and reinforced the prosecutions' charges, we see no likelihood of a more favorable outcome had the defense attorney argued unwarranted overcharging. We thus find no showing of actual prejudice on defendant's IAC claim. (People v. Mickel, supra, 2 Cal.5th at p. 198 [defendant bears the burden of showing a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different].)
Based on the foregoing, we do not find that defense attorney's performance was deficient under the circumstances nor that defendant's sentencing would have been different but for the defense attorney's performance. We are satisfied that a more favorable outcome for defendant is unlikely, regardless of any additional mitigating evidence that the defense attorney might present to the trial court. We therefore conclude that defendant has not established his attorney provided inadequate representation and affirm the judgment.
IV.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. MILLER
J.