Opinion
D060603
12-13-2012
THE PEOPLE, Plaintiff and Respondent, v. AMIER ROCKY ISSA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD214958)
APPEAL from a judgment of the Superior Court of San Diego County, Joseph P. Brannigan, Judge. Affirmed.
A jury convicted Amier Rocky Issa of assault with force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4)) and found true he personally inflicted great bodily injury (§ 12022.7, subd. (e)) using a deadly weapon (§ 1192.7, subd. (c)(23)). On appeal, Issa asserts the court erred by (1) ordering him to pay probation costs without a hearing to determine his ability to pay or sufficient evidence of his ability to pay, and (2) denying his motion for a new trial using a preponderance of the evidence standard to determine whether he was competent during trial.
All further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On July 11, 2008, Issa slashed Michael Serrato's face along the jaw line using a three-inch, folding knife resulting in a permanent four- to five-and-one-half-inch scar. Issa and Serrato had a tumultuous romantic relationship prior to the slashing. Issa pleaded not guilty to the charges of assaulting Serrato with a deadly weapon using force likely to cause great injury, personally inflicting great bodily injury using a knife, and making a criminal threat. Judge Gill suspended pretrial proceedings and on September 28, 2009, ordered Issa to appear for a competency examination. Dr. Carroll found Issa was competent to stand trial, the court agreed, and Issa was ordered back to court. The case was sent to Judge Halgren, who suspended the proceedings and ordered Issa to appear for another competency examination. Dr. Christison determined Issa had been restored to competency, but noted he seemed to have a problem with his counsel and was seeking new counsel. Judge Maguire reinstated the criminal proceedings based on Christison's findings, and Issa was tried by a jury before Judge Brannigan from September 28, 2010, until October 6, 2010.
Issa fled to Las Vegas during jury deliberation and the jury convicted him in absentia. The jury found Issa guilty of assault with a deadly weapon using force likely to cause great injury with a true finding that he caused great bodily injury, and found him not guilty of making a criminal threat. Issa was arrested in Las Vegas and Judge Szumowski suspended criminal proceedings and ordered a competency exam. Dr. Takamura found Issa was incompetent at the exam but did not offer an opinion whether Issa was competent during trial. Judge Maguire agreed with Takamura and ordered Issa to return to Patton State Hospital. Judge Maguire later ordered another competency hearing and Issa was found to be restored to competency. Judge Maguire ordered Issa to return to court for sentencing before Judge Brannigan.
A. Motion for New Trial
Prior to sentencing, Issa filed a motion for a new trial. He argued he should be retried because he was incompetent to stand trial. Issa's motion for a new trial recited that during trial the court presided over two quasi-Marsden type hearings; his behavior throughout trial was irrational, inappropriate and paranoid; and his testimony was combative with both his attorney and the prosecution. He asserted that after trial he had completely deteriorated mentally when he fled to Las Vegas and was found with various medications, large quantities of salt he had been ingesting, a rope and a tent. Lastly, Issa argued that although he was not found incompetent until a month after trial, there was substantial evidence that should have cast a doubt on the prior finding of competency, and Judge Brannigan should have ordered another competency hearing during trial.
People v. Marsden (1970) 2 Cal.3d 118.
Marsden allows defendants to request new appointed counsel. (People v. Marsden, supra, 2 Cal.3d 118.) Issa's retained counsel mistakenly requested Marsden hearings to give notice to the court of conflicts between himself and Issa. At the first quasi-Marsden hearing in February 2010 Judge Gill ordered Issa to have a competency exam; At the second quasi-Marsden hearing in September 2010 Issa assured the court he was willing to cooperate with his counsel and the court declared there was no conflict between Issa and his counsel.
Judge Brannigan denied the motion for a new trial. The court gave a lengthy explanation of the denial of the motion. It explained it had taken "great efforts" and "particular pains" to interact with Issa during trial to make sure he was competent. The court acknowledged Issa's attorney raised "red flags" regarding Issa's competency and the attorney-client relationship was contentious. The court stated it believed Issa was competent during trial and did not find there was a change in circumstances justifying another competency hearing. It concluded that after rereading the record and based on its interactions with Issa, it never expressed doubt as to Issa's competence to stand trial. Issa then filed an oral motion to relieve his counsel, claiming ineffective assistance. The court denied the motion, explaining Issa's attorney had done the best he could with a difficult client, and sentencing proceeded.
B. Probation Costs
At sentencing, the court proposed Issa be placed on formal probation for three years with conditions tailored to remedying mental illness issues. The court also proposed an order for Issa to reimburse probation costs. Issa met with a probation officer who questioned him about his employment and financial situations and submitted a probation report to the court. The court took a short recess to allow Issa and his attorney to discuss the proposed terms of probation and the order to pay probation costs.
After the recess, Issa's attorney told the court he had gone over the proposed orders with Issa, and "[Issa was] prepared to accept those terms with the following comments as to a few of them." His counsel claimed that although Issa had a "healthy bank account three years ago," he was "beyond broke, unemployed." Issa had expressed concern that he had a felony conviction on his record and he would have difficulty finding a job. He would also be living with his family in Los Angeles. His counsel added Issa had served 365 days in custody since the charges were filed against him, then stated, "With that in mind, I'd ask the court [to] consider striking what fines can be stricken and costs that can be stricken so at least [Issa] can start out not saddled with a tremendous amount of additional debt on top of what he's picked up while sitting in custody."
The court asked Issa's attorney if he was requesting some of the fines be satisfied by Issa's time in custody. His attorney replied, "Additionally, yes, sir. [¶] . . . But I'd ask that at least some of those that can be stricken . . . . [T]he court's security fee and some of those others are not strikable [sic], but I know that the court can make a good-cause finding to strike a lot of that as well as the probation report costs and things of that nature." The court then gave the prosecution time to respond, and the prosecution emphasized that it is fair for an employer to know that Issa is a dangerous individual. The court acknowledged Issa had been in custody for some time, was unemployed and had not had a job for some time. The court then gave Issa "credit against his fines for the time that he's served. . . . [A]ny of those that can be satisfied by custody will be satisfied. If any of them are not of the type that can be stricken due to giving credit for custody that has been served, then [Issa] will have to pay those." The court ordered Issa to pay probation costs of $1,124 for the presentence investigation report fee and a $99 per month probation supervision cost. Issa did not object to the final order or request a separate hearing on his ability to pay the costs.
DISCUSSION
I
The Probation Order and Hearing
Issa contends the court erred by ordering him to reimburse probation costs because it did not provide him with a hearing to determine his ability to pay them, and the evidence was insufficient to establish his ability to pay. The People contend Issa forfeited these appellate claims because he did not request a hearing. Issa asserts he did not forfeit the claims on appeal because his attorney placed the court on notice of the issues, and challenges to orders not supported by substantial evidence do not require an objection below.
A. Preserving the Claims for Review
Generally, claims raised on appeal regarding probation conditions must have been raised at trial. (People v. Valtakis (2003) 105 Cal.App.4th 1066, 1071-1072, citing People v. Welch (1993) 5 Cal.4th 228, 232-237.) Claims that, although " 'otherwise permitted by law, were imposed in a procedurally or factually flawed manner' " are forfeited on appeal. (Valtakis, at p. 1072.) This is "the claim here: the probation fees, otherwise permitted, were procedurally flawed (for absence of notice, a hearing or a finding) and factually flawed (for absence of evidence that the defendant had the ability to pay)." (Ibid.)Issa was required to object to the purported absence of a hearing and of evidence of his ability to pay. Although Issa requested the court strike all fines it had the ability to strike, it was not clearly an objection or a request for a hearing.
Further, Issa's attorney did not object or raise any probation fee issue after the court agreed to strike certain costs. The court stated, "[i]f any of [the fines and fees] are not of the type that can be stricken due to giving credit for custody that has been served, then [Issa] will have to pay those." This statement was the last time the restitution order was discussed at sentencing. Issa offered no objection to the court's final determination that the credits would be applied and he would have to pay the remainder.
Issa claims People v. Pacheco (2010) 187 Cal.App.4th 1392, People v. Lopez (2005) 129 Cal.App.4th 1508, and People v. Viray (2005) 134 Cal.App.4th 1186 (Viray) allow similarly situated defendants to appeal this issue without an objection in the lower court. We disagree. Because Pacheco relies on Lopez and Viray, we turn to those cases.
Lopez only applies to prisoners because there is a presumption that prisoners are unable to pay probation costs and attorney fees. (People v. Lopez, supra, 129 Cal.App.4th at pp. 1536-1537.) The court held a state prisoner sentenced to pay $1,000 in attorney fees was denied an appropriate hearing to determine his ability to pay. (Ibid.) The court reasoned that because of the presumption that a prisoner is unable to pay, he or she generally should be entitled to an express finding of the ability to pay. (Ibid.). Because of that presumption and the absence of evidence of his ability to pay, Lopez could raise the issue for the first time on appeal. (Ibid.)
Similarly, Viray only applies in the narrow circumstance in which a court orders a defendant to reimburse his or her public defender's fees and the public defender does not object. (Viray, supra, 134 Cal.App.4th at p. 1216, fn. 15.) There must be a conflict of interest related to publicly funded counsel to apply Viray here. (Viray, supra, 134 Cal.App.4th at p. 1216, fn. 15.)
"Obviously this analysis has no application where the defendant has engaged independent counsel before reimbursement is ordered. [Citation.] . . . Our remarks apply where, at the time of a reimbursement order, the defendant's sole representative is the same publicly financed counsel for whose services reimbursement is sought." (Viray, supra, 134 Cal.App.4th at p. 1216, fn. 15.)
Unlike Lopez, Issa was placed on formal probation and is not a prisoner. Thus, there is no presumption he cannot pay costs. Contrary to Viray, the disputed fees here do not seek reimbursement for publicly financed counsel, there is no conflict of interest, and there is sufficient evidence of Issa's ability to pay. Consequently, neither Viray nor Lopez apply, and the case is "governed by the usual principles concerning preservation of objections by a represented party." (Viray, supra, 134 Cal.App.4th at p. 1216, fn. 15.) Because Issa did not object to the court's final determination he would have to pay the costs that could not be stricken, and did not object to the informal hearing, we conclude he did not preserve his claims for appeal.
We hold Issa forfeited his claims on appeal by not requesting a hearing or objecting to the trial court's final order. Nevertheless, we conclude the court properly held a hearing to determine Issa's ability to pay by holding an informal hearing at sentencing. Additionally, we exercise our discretion to review the challenge to the sufficiency of the evidence, and conclude there is substantial evidence of Issa's ability to pay even if he forfeited the claim on appeal.
B. The Court Conducted a Hearing
Although we hold Issa forfeited his claim on appeal, we nevertheless conclude the court properly conducted a hearing on Issa's ability to reimburse probation costs. Section 1203.1b, subdivision (a), requires that when a defendant is convicted and placed on probation, the probation officer must make a determination of the defendant's ability to pay any probation fees the court might order the defendant to reimburse. The probation officer must also inform the defendant that he or she has a right to a separate court hearing on the defendant's ability to pay. (Ibid.)
At the hearing, "the court shall make a determination of the defendant's ability to pay and the payment amount. The defendant must waive the right to a determination by the court of his or her ability to pay and the payment amount by a knowing and intelligent waiver." (§ 1203.1b, subd. (a).) After a hearing or waiver of a hearing, "[t]he court shall order the defendant to pay the reasonable costs [of probation] if it determines that the defendant has the ability to pay those costs based on the report of the probation officer . . . ." (§ 1203.1b, subd. (b).) At an ability to pay hearing, the defendant is entitled to have the opportunity to be heard and present evidence. (§ 1203.1b, subd. (b)(1).)
"At the hearing, the defendant shall be entitled to have, but shall not be limited to, the opportunity to be heard in person, to present witnesses and other documentary evidence, and to confront and cross-examine adverse witnesses, and to disclosure of the evidence against the defendant, and a written statement of the findings of the court or the probation officer, or his or her authorized representative." (§ 1203.1b, subd. (b)(1).)
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Hearings to determine ability to pay can be informal and conducted as part of sentencing. (People v. Phillips (1994) 25 Cal.App.4th 62, 69-70.) "The court's finding of the defendant's present ability to pay need not be express, but may be implied through the content and conduct of the hearings." (People v. Pacheco, supra, 187 Cal.App.4th at p. 1398.) Here, the court conducted an informal hearing integrated with the sentencing hearing to determine Issa's ability to pay probation fees. The court granted a short recess so Issa and his attorney could review the proposed order for reimbursement. After recess, Issa agreed to accept the terms of the probation report and the order to reimburse probation costs if the court would strike "what fines can be stricken."
The court gave Issa the opportunity to be heard and offer evidence as to his ability to pay. Issa asserted he was unemployed and had no assets, and requested the court strike costs. The court agreed to apply credits Issa garnered in custody to his probation fines and fees. This exchange at sentencing provided Issa an adequate opportunity to be heard regarding his ability to pay fees. Therefore, the court did not deny him a hearing within the meaning of section 1203.1b, subdivision (b).
C. The Record Contains Substantial Evidence of Issa's Ability to Pay
Although neither the court nor the prosecution offered a rebuttal at Issa's ability to pay hearing, the record contains substantial evidence of Issa's ability to pay the $1,127 presentence investigation and report fine, and the $99 a month probation supervision fees. Findings of ability to pay must be supported by substantial evidence. (People v. Pacheco, supra, 187 Cal.App.4th at p. 1398.) According to Section 1203.1b, evidence of ability to pay includes, but is not limited to, the defendant's:
"(1) Present financial position. [¶] (2) Reasonably discernible future financial position. In no event shall the court consider a period of more than one year from the date of the hearing for purposes of determining reasonably discernible future financial position. [¶] (3) Likelihood that the defendant shall be able to obtain employment within the one-year period from the date of the hearing. [¶] (4) Any other factor or factors that may bear upon the defendant's financial capability to reimburse the county for the costs." (§ 1203.1b, subd. (e).)
Issa was unemployed at the time of the hearing and did not have assets, which weighs in favor of finding he has an inability to pay the probation costs. However, Issa's probation report shows he may be in a good position to obtain employment because he has a degree in psychology with a minor in biology and computer science engineering. Moreover, Issa has 11 years of experience working as a Senior Systems Administrator, earning $86,000 per year. He also owned a consulting business for five years that garnered him an extra $25,000 per year. He was apparently offered a job after his conviction as an IT Manager of Electrical Engineering with a $90,000 salary, but was not hired because of the felony on his record.
A felony on Issa's record will undoubtedly continue to be detrimental to his employability. However, his excellent employment history, past wages, and degree provide sufficient evidence for the court to conclude he will be employed and earning satisfactory wages within a year from the date of the hearing, although potentially in a less advanced field. Issa also stated he planned to live with his family in Los Angeles, so it is reasonable for the court to infer he does not and will not have excessive expenses in the next year. Finally, Issa plans to "get a job, get married, get a house and have a kid or two," which demonstrates his willingness to become employed and continue with his life.
The record contains substantial evidence to show Issa's ability to pay probation costs, and the court properly ordered him to pay. Further supporting the court's discretion is the legislative intent of Section 1203.1b. That section " 'reflect[s] a strong legislative policy in favor of shifting the costs stemming from criminal acts back to the convicted defendant' and ' " 'replenishing a county treasury from the pockets of those who have directly benefited from county expenditures.' " ' " (People v. Valtakis, supra, 105 Cal.App.4th at p. 1073.)
D. Modifying or Vacating the Reimbursement Order
Because we hold the court conducted an informal ability to pay hearing and the record contains substantial evidence to support the order for reimbursement, we affirm the order. However, if Issa cannot pay the $99 probation supervision fee and the $1,127 presentence investigation report fee, it is within his rights to petition the probation officer for a review of his ability to pay, or to petition the trial court to modify or vacate the order. (§ 1203.1b, subd. (f).)
II
The Court Properly Denied the Motion for New Trial
Issa contends the court erroneously used a preponderance of the evidence standard in evaluating evidence regarding his competency to stand trial, and thus improperly denied his motion for a new trial. He argues the court should have evaluated new evidence or a substantial change in competence by gauging whether it cast a doubt on a prior finding of competence. Issa concludes the error is structural and a due process violation. Based on our review of the record, the court did not use the incorrect preponderance of the evidence standard and was not presented with new evidence or a substantial change of circumstances casting "serious doubt on the validity of the prior finding of [Issa's] competence." (People v. Medina (1995) 11 Cal.4th 694, 734.) We conclude the court determined Issa was competent during trial using the correct standard and properly denied his motion for a new trial.
A. Standard of Review
"A trial court has broad discretion in ruling on a motion for a new trial, and there is a strong presumption that it properly exercised that discretion." (People v. Davis (1995) 10 Cal.4th 463, 524.) Thedetermination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears." [Citation]' " (People v. Williams (1997) 16 Cal.4th 635, 686.)
B. The Court Used the Correct Competency Standard
It is a due process violation to convict a defendant of a crime if the defendant is incompetent during trial. (Pate v. Robinson (1966) 383 U.S. 375.) A defendant is 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).) If a judge expresses doubt as to a defendant's mental competency, the judge must suspend proceedings and order a competency examination. (§ 1368, subds. (a), (c).)
Additionally, if a defendant offers substantial evidence of mental incompetency, the judge has no discretion and must order a competency examination. (People v. Pennington (1967) 66 Cal.2d 508, 518; § 1368, subd. (a).) Substantial evidence of mental incompetency must be more than bizarre actions and statements, defense counsel's statements that a defendant is unable to assist with his or her own defense, or psychiatric evidence of mental problems that does not refer to a defendant's ability to aid in his or her own defense. (People v. Laudermilk (1967) 67 Cal.2d 272, 285.) However, failure to order a competency examination when a defendant presents substantial evidence of mental incompetency or a judge expresses a doubt as to competency is per se prejudicial. (Pennington, at p. 521.) After a defendant is found to be competent, "the criminal process shall resume, the trial on the offense charged shall proceed, and judgment may be pronounced." (§ 1370, subd. (a)(1)(A).)
If a defendant has previously been found to be competent after a competency hearing, the court is only required to order another competency examination if it is presented with new evidence or a substantial change in circumstances that casts a "serious doubt on the validity of that finding." (People v. Jones (1991) 53 Cal.3d 1115, 1153.) We generally give "great deference to a trial court's decision whether to hold a competency hearing." (People v. Marshall (1997) 15 Cal.4th 1, 33.)
"[W]hen, as in this case, a competency hearing has already been held, the trial court may appropriately take its personal observations into account in determining whether there has been some significant change in the defendant's mental state. This is particularly true when, as here, the defendant has actively participated in the trial. The trial court had an opportunity to observe, and converse with, defendant throughout the trial itself and the posttrial proceedings. The court appropriately considered these observations in concluding that defendant's condition was essentially unchanged from the start of trial, when the court found him competent, to the time he was
sentenced, when defense counsel asked that proceedings again be suspended." (People v. Jones, supra, 53 Cal.3d at p. 1153.)
Issa argues the court used the wrong legal standard in determining competency, and we should not show deference to the court's discretion. He contends the judge's statement that he "took particular pains to interact with [Issa] and determine for [himself] if [he] believed and found [Issa] was incompetent" indicates the court required Issa to prove a substantial change by a preponderance of evidence. However, the judge reiterated the correct "reasonable doubt" standard multiple times in open court and even stated the parties had agreed to that standard at a prior hearing. The judge further made it a point to interact with Issa to detect any signs of incompetence. The judge's deliberate interactions with Issa did not show the judge had a serious doubt as to Issa's competency, or that the court required proof of incompetence by a preponderance of the evidence. It shows the judge, in an abundance of caution, focused on Issa to ensure his due process rights were not violated. The court applied the correct legal standard when determining whether to order another competency hearing.
C. The Court Was Not Required to Order a Competency Hearing
Issa further asserts he presented the court with substantial evidence of incompetency and the court erroneously did not order a competency hearing. Before the hearing on the motion for a new trial, the court took time to reread the pleadings and cases the parties cited, review notes it took during oral argument, and comb the entire case file to ensure a just ruling on the motion for a new trial. At the hearing, the court detailed the more than three-year timeline starting two months before the crime to the present with Issa, his counsel, and the prosecution. The court then reiterated the prosecution's and defense counsel's positions and evidence regarding Issa's competency. The court considered all of the relevant evidence before it, and reasonably came to the conclusion there was no substantial change in circumstances warranting a new trial.
In evaluating whether the court should have suspended proceedings and ordered a competency hearing, we address only whether there was substantial evidence of Issa's competency presented to the court during trial from September 28, 2010, to October 6, 2010. The court, prosecution and defense agree that Issa's competency "waxes and wanes" but the only question before us is whether he presented substantial evidence he was incompetent at trial. The authorities contained in the motion for a new trial presented to the court the following facts: (1) Issa secretly videotaped an argument with his attorney using his cell phone and later publicly posted it to YouTube.com; (2) there were two quasi-Marsden hearings to discuss conflicts between Issa and his attorney; (3) the court had to admonish Issa for his behavior frequently; (4) Issa called his fiancée, a woman he met on the Internet, in the presence of the jury during recess; (5) Issa changed his mind about testifying on his own behalf several times and, when he did testify, was combative with his own attorney and the prosecution.
These facts, although bizarre and indicative of a difficult client, do not necessarily establish Issa was unable to understand the charges against him or assist his attorney in representing him. The standard for competency is low, and mentally ill or difficult clients are not necessarily incompetent. (People v. Laudermilk, supra, 67 Cal.2d at pp. 285-288.) Issa stated at various times that he understood the charges against him, he participated in court proceedings, and he gave his attorney information to aid in his defense. Even his attorney's statements that Issa was not cooperating with his own defense did not oblige the court to order a competency hearing. The court considered these facts, and concluded there was no substantial change in circumstances. Issa's paranoia and difficult nature were not new evidence to the court. The court could reasonably conclude that although Issa was combative and likely had a mental illness, he was competent to stand trial.
Issa's flight to Las Vegas and the following finding of incompetence do not necessarily indicate he was incompetent at trial. Issa fled after the jury was given the case for deliberation and the proceedings were suspended after the jury found him guilty of the first count. A doctor then found Issa incompetent in December of 2010. The incompetency finding was only "one of present incompetence" (People v. Smith (2003) 110 Cal.App.4th 492, 504), and did not determine that Issa was incompetent during trial. He was restored to competency prior to the hearing on his motion for a new trial and sentencing. The court considered the flight and still found Issa could understand the charges against him and aid his attorney in his defense before he fled. There was no substantial change in circumstances or new evidence presented during trial indicating the court was using a preponderance of the evidence rather than a reasonable doubt standard.
We conclude the court did not abuse its discretion by denying the motion for a new trial. The court used the proper standard when determining Issa's competence at trial and appropriately exercised its discretion to deny the motion for a new trial based on its own observations and the competency evidence presented.
DISPOSITION
The judgment is affirmed.
McDONALD, J. WE CONCUR: HUFFMAN, Acting P. J. McINTYRE, J.