Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County No. MF47267 Marc A. Garcia, Judge.
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, P.J.
Appellant Eduardo Ramirez Rincon appeals a judgment following conviction of attempted robbery and kidnapping for robbery with findings that he was sane at the time of the offenses. Appellant contends: (1) the trial court erred in denying his motion for a new trial based upon the ground of newly discovered evidence concerning the posttrial license revocation of a psychologist who served as the prosecution’s sole expert witness on the issue of appellant’s mental state; (2) his trial counsel rendered ineffective assistance by failing to request pretrial discovery concerning the psychologist’s professional history; and (3) his conviction of attempted robbery must be reversed because it is a lesser included offense of kidnapping for robbery. For reasons discussed below, we reject appellant’s contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The basic facts are not in dispute. On October 8, 2007, around 5:30 a.m., appellant hid inside Rosa Molina’s van as Molina was dropping her children off at appellant’s house to be babysat by appellant’s wife while Molina went to work. When Molina returned to her van and started backing out of the driveway, appellant came up from behind and ordered her to continue driving. Appellant pressed an object against Molina’s hip, which she believed to be a gun. Appellant testified it was a toy gun and admitted that he pretended to cock the gun when he asked Molina to drive. Although Molina had met appellant in the past, that morning she did not recognize appellant, who was wearing a hooded sweatshirt with the hood up.
Molina testified that appellant threatened to kill her if she did not drive as directed. Appellant, however, denied making such a threat, and testified that he told Molina not to worry and that he just needed a ride.
As Molina was driving, appellant asked her if she had $20. When she said she did not have any money, he asked her if she had any coffee. Molina told appellant that she did not have any coffee but there were some sodas in the back of the van. Appellant replied that this was fine.
After having Molina drive him around for about an hour, appellant directed her to stop at a field and told her she was going to help him dig up some guns. As they walked into the field, Molina saw that appellant was holding a knife. Eventually, appellant crouched down to look for people through a pair of binoculars. When he crouched down, Molina started to run back to the van. Appellant chased Molina, but she was able to get inside the van and lock the doors. As she began to drive forward, appellant slashed one of the van’s tires. The van started to swerve, but Molina was able to control it and travel to a nearby dairy farm where she sought help.
Appellant testified that he did not know why he asked Molina to take him to the field. He did not remember telling her that he had guns hidden in the field, explaining, “No, I do not remember, because I don’t have any [guns].”
On March 12, 2008, appellant was charged by information with attempted robbery (Pen. Code, §§ 664/211; count 1) and kidnapping for robbery (§ 209, subd. (b); count 2). It was further alleged that appellant had three prior convictions of serious or violent felonies (§ 1170.12, subd. (c)(2)(A).)
Further statutory references are to the Penal Code unless otherwise specified.
On March 19, 2008, following his arraignment, appellant entered a plea of not guilty. On June 25, 2008, appellant personally entered an additional plea of not guilty by reason of insanity.
The trial court thereafter appointed two psychologists -- Dr. Richard A. Blak, Ph.D. and Dr. J. Stanley Bunce, Ph.D. -- to examine appellant and to prepare a report (§§ 25, subd. (b), 1026). In a report dated July 2, 2008, Dr. Blak concluded that appellant was legally insane at the time of the offenses. Dr. Bunce reached the opposite conclusion in a report dated July 17, 2008.
Testimony in the guilt phase of appellant’s jury trial commenced on June 19, 2009. The defense did not dispute that appellant was involved in the October 8, 2007 incident, and appellant’s account of what happened largely paralleled Molina’s account. The defense theory was that appellant did not actually form the mental state required for the crimes due to mental disorders he suffered, which were exacerbated by his consumption of methamphetamine prior to his encounter with Molina. The defense theory was supported by the testimony of appellant and a psychologist, Dr. Phillip Hamm, Ph.D.
Appellant testified, inter alia, that he was the victim of a stabbing in November 2006, which required him to undergo surgery. When he was released from the hospital, he was given Vicodin, but it failed to relieve all his pain. Due to chronic pain, appellant was unable to work or assist his family financially. Despondent, appellant attempted to commit suicide by hanging himself in his garage, but his wife found him and cut him down. In an effort to relieve his pain, appellant began to use methamphetamine in 2007, and became addicted to the drug. In the hours before the incident in this case, appellant smoked approximately three grams of methamphetamine. Appellant denied that he got inside Molina’s van because he wanted money for drugs.
Dr. Hamm testified that he diagnosed appellant as suffering from multiple mental conditions, including chronic pain syndrome, major depression, and posttraumatic stress disorder. Dr. Hamm opined that appellant was in a psychotic state at the time of the offenses. Dr. Hamm explained that a person in a psychotic state is unable to formulate a rational plan of action.
The prosecution called the court-appointed psychologists, Dr. Blak and Dr. Bunce, as rebuttal witnesses. Dr. Blak, who was in agreement with Dr. Hamm that appellant was psychotic at the time of the offenses, nonetheless testified that, when he interviewed appellant on June 30, 2008, appellant told him that his confrontation with Molina was about “seeking money for drugs.” Dr. Bunce testified that when he interviewed appellant on July 8, 2008, appellant did not report experiencing any specific delusions or hallucinations during the subject incident.
On June 26, 2009, a jury found appellant guilty of committing the offenses.
On June 29, 2009, the trial on the sanity issue commenced. Dr. Blak and Dr. Hamm testified for the defense and both opined that appellant was legally insane at the time of the offenses. Dr. Bunce testified for the prosecution and opined that appellant was sane when he committed the crimes.
On June 30, 2009, the jury found appellant was sane at the time of his commission of the offenses. In a bifurcated proceeding, the trial court found the prior conviction allegations to be true.
On September 18, 2009, appellant filed an application for a new trial based on newly discovered evidence (§ 1181, subd. (8)). Attached to the application was evidence that, at the time of Dr. Bunce’s testimony in the instant matter, an accusation charging gross negligence had been filed against him and an administrative law judge had issued a 25-page proposed decision to revoke his license, which was dated June 19, 2009. The proposed decision revoking Dr. Bunce’s license was adopted by the Board of Psychology on August 24, 2009, and became effective on September 23, 2009.
On March 9, 2010, the trial court heard and denied appellant’s motion for a new trial finding no reasonable likelihood the new evidence concerning Dr. Bunce’s license revocation would lead to a different result on retrial. The court then proceeded to sentencing. After striking two of appellant’s prior convictions, the court sentenced him to 14 years to life for his conviction of kidnapping for robbery, and six years for his conviction of attempted robbery, which term the court stayed pursuant to section 654.
DISCUSSION
I. Denial of Motion for a New Trial
Appellant contends the trial court erred by denying his motion for a new trial based on newly discovered evidence that Dr. Bunce, the prosecution’s sole expert on appellant’s mental state, was “at the time of his testimony … under investigation for having had sexual relations with a patient in 2005 and 2006, and a proposed decision to revoke his license had already been issued on the grounds of gross negligence.” Appellant further contends, in his supplemental opening brief, that his trial counsel rendered ineffective assistance of counsel by failing to move for pretrial discovery concerning Dr. Bunce’s professional history. We reject both contentions and conclude the trial court did not abuse its discretion by denying appellant’s motion for a new trial because the newly discovered evidence was merely impeaching evidence and was not such to render a different result probable.
“‘To grant a new trial on the basis of newly discovered evidence, the evidence must make a different result probable on retrial.’ [Citation.] ‘[T]he trial court has broad discretion in ruling on a new trial motion, ’ and its ‘ruling will be disturbed only for clear abuse of that discretion.’ [Citation.] In addition, ‘[w]e accept the trial court’s credibility determinations and findings on questions of historical fact if supported by substantial evidence.’ [Citation.]” (People v. Verdugo (2010) 50 Cal.4th 263, 308.)
“In [People v. Delgado (1993) 5 Cal.4th 312, 328 (Delgado)], the California Supreme Court identified five factors to consider when ruling on a motion for new trial based on newly discovered evidence: ‘“‘1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the case; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits.’”’ [¶] Moreover, ‘“a motion for a new trial should be granted when the newly discovered evidence contradicts the strongest evidence introduced against the defendant.”’ [Citation.]” (People v. Hall (2010) 187 Cal.App.4th 282, 298.) “Critically, ‘[a] new trial on the ground of newly discovered evidence is not granted where the only value of the newly discovered testimony is as impeaching evidence’ or to contradict a witness of the opposing party. [Citations.]” (Id. at p. 299.)
Although Dr. Bunce’s testimony was arguably the strongest evidence against appellant in the sanity phase of his trial, the newly discovered evidence that Dr. Bunce was facing disciplinary charges on an unrelated matter did not directly refute his testimony concerning appellant’s mental state. The admitted purpose of the new evidence was to impeach the credibility of the prosecution’s expert witness. Therefore, the trial court properly denied appellant’s motion for a new trial.
The importance of Dr. Bunce’s testimony during the guilt phase is less significant because there was ample evidence, besides his testimony, that appellant had the requisite mental state for the offenses (i.e., the intent to commit robbery). (CALCRIM Nos. 460, 1203). Appellant’s prior statements to Dr. Blak that the purpose of his encounter with the victim was to seek money for drugs contradicted appellant’s trial testimony that his conduct towards the victim was not motivated by a desire to get money from her for drugs. Appellant also admitted on cross-examination that, at the time he was in Molina’s van, he wanted more methamphetamine and that he was out of both methamphetamine and money. Appellant’s detailed memory of the events and the consistency between his account and Molina’s also raises some doubt as to his claim that his ability to form intent was affected by his mental disorders and methamphetamine intoxication.
On appeal, appellant acknowledges the principle that newly discovered evidence does not warrant a new trial if it “goes solely to impeach the credibility of witnesses.” However, he argues the rule should yield in this case. Thus, he asserts in his opening brief:
“The prohibition against the granting of a new trial based upon impeaching evidence cannot be invoked in a case such as the one at bench, where the evidence constitutes impeachment of such fundamental importance to the credibility and judgment of a key witness on the focal issue of the case. Had a jury learned that Dr. Bunce’s license was revoked for having sexual relations with a severely disturbed patient, there is good cause to find it would have lost trust in his judgment and found his opinion less persuasive.” (Italics added.)
Similarly, appellant asserts in his reply brief:
“The fact that he would abuse his position of power and trust to engage in sexual relations with a mentally disturbed patient demonstrates not only a lack of professionalism, but a serious disregard for the welfare of his patients.… [¶] …[T]he evaluation of a patient’s mental state involves an undeniably subjective aspect that requires the exercise of judgment. Thus, evidence which shows that a mental health professional exercised such seriously flawed judgment in the performance of his duties as to engage in an affair with his mentally disturbed patient necessarily impacts the credibility and reliability of his opinion.” (Italics added.)
Appellant repeats variations of this argument throughout his briefing on appeal.
The most glaring problem with appellant’s argument is that the record establishes that Dr. Bunce’s license was not revoked for having sexual relations with the patient in question. Although this allegation was made in the accusation filed against Dr. Bunce, the administrative law judge’s proposed decision to revoke his license, which the Board of Psychology later adopted, states that Dr. Bunce “successfully defended against a finding that he and [the patient] engaged in sexual relations with each other.” The administrative law judge specifically found that the “complainant failed to prove by clear and convincing proof to a reasonable certainty that [Dr. Bunce] and [the patient] had sexual relations with each other.”
Instead, the decision to revoke Dr. Bunce’s license was based on the alternative ground alleged in the accusation that the psychologist engaged in an improper “multiple relationships” with the patient. The factual findings of the administrative law judge reflect that Dr. Bunce encouraged his patient to become involved in various mental health organizations, including starting a bipolar support group with him, frequently dined out with the patient before meetings, and attended out-of-town conferences with the patient that required overnight stays in hotels and led to incidental social activities, like visiting a Jaguar car dealership together, unrelated to the therapeutic relationship. Based on these and related facts, the administrative law judge concluded that “[Dr. Bunce] entered into numerous unethical multiple relationships and that his conduct in this regard was an extreme departure from the standard of care and amounted to gross negligence.”
The decision defines a multiple relationship, in part, as follows: “(a) A multiple relationship occurs when a psychologist is in a professional role with a person and … at the same time is in another role with the same person.… [¶] A psychologist refrains from entering into a multiple relationship if the multiple relationship could reasonably be expected to impair the psychologist’s objectivity, competence, or effectiveness in performing his or her functions as a psychologist, or otherwise risk exploitation or harm to the person with whom the professional relationship exists.”
Without intending to minimize the seriousness of Dr. Bunce’s conduct, which undoubtedly compromised his objectivity with respect to the individual patient involved, we nonetheless cannot ascribe to it the devastating impeaching power suggested by appellant in his erroneous assertions that Dr. Bunce had his license revoked for having a sexual relationship with the patient. Rather, we agree with the trial court’s conclusion that the new evidence was not such as to render a different result probable. Even had the jury heard evidence that Dr. Bunce was under investigation for entering into an improper multiple relationship with his patient and was exposed to some of the administrative law judge’s factual findings regarding Dr. Bunce’s activities with the patient outside of therapy, which occurred between August 2005 and January 2006, we do not believe the information would have been so damaging to his credibility as to cause the jury to reject his July 2008 evaluation of appellant or his June 2009 testimony regarding appellant’s mental state at the time of the offenses. As respondent correctly points out, “Dr. Bunce did not have his license revoked because he was not properly trained or educated, or because he was shown to render inaccurate or improper diagnoses.”
Moreover, none of the cases appellant cites because they “found new trials warranted based upon impeaching evidence” remotely resembles the instant case. (See e.g., People v. Randle (1982) 130 Cal.App.3d 286 [after defendant convicted of forcible oral copulation, newspaper article published about crime and naming victim resulted in 17 individuals in nearby city submitting declarations detailing instances of victim’s dishonesty and commission of public sex acts]; People v. Henry (1956) 142 Cal.App.2d 114 [rape case where prosecutor neglected to ask victim whether defendant was the person she had sexual intercourse with and new evidence was victim affidavit stating defendant was not the man], People v. Huskins (1996) 245 Cal.App.2d 859 [child molestation case where new evidence showed prosecution’s only adult witness suffered history of paranoid schizophrenia and had made unproven allegations of child molestation against her own husband], People v. Williams (1962) 57 Cal.2d 263 [burglary and robbery case where victim (defendant’s ex-lover with whom he had 2 children) did not testify and credible new evidence showed the prosecution’s chief witness (victim’s new lover) testified falsely against defendant].)
Because a different outcome in this case is not probable, we reject appellant’s related claim that he received ineffective assistance of counsel as a result of his trial counsel’s failure to move for pretrial discovery regarding Dr. Bunce’s professional background and history.
“In considering a claim of ineffective assistance of counsel, it is not necessary to determine ‘“whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.”’ [Citations.] It is not sufficient to show the alleged errors may have had some conceivable effect on the trial’s outcome; the defendant must demonstrate a ‘reasonable probability’ that absent the errors the result would have been different. [Citations.]” (People v. Mesa (2006) 144 Cal.App.4th 1000, 1008.)
Appellant has failed to show the requisite prejudice.
II. Attempted Robbery Conviction
Alternatively, appellant asserts that attempted robbery is a necessarily included offense of kidnapping for robbery and he cannot be convicted of both offenses. (People v. Montoya (2004) 33 Cal.4th 1031, 1034.) We reject these assertions because the two are separate crimes.
The California Supreme Court has consistently held that robbery is not a lesser included offense of kidnapping for robbery because kidnapping for robbery does not require a completed robbery. (People v. Lewis (2008) 43 Cal.4th 415, 518-519; People v. Davis (2005) 36 Cal.4th 510, 565.) In the present case, however, appellant argues that attempted robbery is a lesser included offense under the elements test because attempted robbery and intent to commit kidnapping for robbery both require an intent to commit robbery. (CALCRIM Nos. 460 and 1203; People v. Wallace (2008) 44 Cal.4th 1032, 1077; People v. Laursen (1972) 8 Cal.3d 192, 198; People v. Crawford (1968) 259 Cal.App.2d 874, 877.)
Although both the kidnapping and robbery crimes include intent as an element, attempted robbery includes the additional element of proof of a direct but ineffective step requiring more than merely planning or preparation and shows that a person is putting his plan into action. (CALCRIM No. 460.) After all, “‘planning the offense’ and ‘devising, obtaining or arranging the means for its commission’ are merely aspects of preparation. [Citation.]” (People v. Luna (2009) 170 Cal.App.4th 535, 543-544, citing People v. Dillon (1983) 34 Cal.3d 441, 452.) We agree with respondent that, theoretically, it would be possible to commit a kidnapping with the intent to commit robbery but without the additional element of a direct but ineffective step. Therefore, under the elements test, the elements of attempted robbery are not necessarily included in the elements of the crime of kidnapping for robbery. (People v. Montoya, supra, 33 Cal.4th at p. 1034.)
People v. Medina (2007) 41 Cal.4th 685 (Medina), on which appellant relies, is inapposite. There, our Supreme Court held that “attempted carjacking (§§ 664, 215) and attempted kidnapping (§§ 664, 207) are lesser included offenses of attempted kidnapping during the commission of a carjacking (§§ 664, 209.5(a)).” (Medina, supra, 41 Cal.4th at p. 701.) Appellant contends that implicit in Medina’s holding is the conclusion that “an attempted carjacking [is] also a lesser included offense to that of a completed kidnapping for purposes of carjacking.” He then asserts that this case “presents a similar scenario” and that the Medina court’s reasoning “leads to the inescapable conclusion that an attempted robbery is also a lesser included offense to that of kidnapping for purpose of robbery.”
Appellant’s argument hinges on the assumption that the completed crime of kidnapping during the course of a carjacking (which appellant refers to as “kidnapping for purposes of carjacking”) is analogous to the completed crime of kidnapping for robbery at issue in this case. It is not. Unlike the crime of kidnapping for robbery, which, as noted above, does not require a completed robbery, the crime of kidnapping during the course of a carjacking does require a completed carjacking. (§ 209.5, subd. (a), CALCRIM No. 1204.) Medina simply does not support appellant’s assertion that attempted robbery is a lesser included offense of kidnapping for robbery.
Section 209.5, subdivision (a) states: “Any person who, during the commission of a carjacking and in order to facilitate the commission of the carjacking, kidnaps another person who is not a principal in the commission of the carjacking shall be punished by imprisonment in the state prison for life with the possibility of parole.” “To prove that the defendant is guilty of this crime, the People must prove that: 1. The defendant committed a carjacking; [¶] 2. During the carjacking, the defendant took, held, or detained another person by using force or by instilling reasonable fear; [¶] 3. The defendant moved the other person or made that person move a substantial distance from the vicinity of the carjacking; [¶] 4. The defendant moved or caused the other person to move with the intent to facilitate the carjacking [or to help (himself/herself) escape/or to prevent the other person from sounding an alarm]; [¶] 5. The person moved was not one of the carjackers.…” (CALCRIM No. 1204, italics added.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: DETJEN, J.FRANSON, J.