Opinion
F071639
03-22-2017
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL LEVON WILKINS, Defendant and Appellant.
Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRM024047)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Merced County. Ronald W. Hansen, Judge. Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Gomes, Acting P.J., Kane, J. and Franson, J.
-ooOoo-
A jury found Michael Levon Wilkins guilty of the first degree murder of Ramon Garza, and the robbery of Taylor Keeton and Thomas Ramos. The jury also found true the special circumstance allegation that the murder was committed during the course of a burglary and robbery. Various enhancements were also found true.
Appellate counsel filed a brief asserting that after reviewing the record she could not identify any arguable issues. We agree there are no arguable issues in this case, but will remand the matter to correct the abstract of judgment which erroneously omitted a parole revocation fine imposed pursuant to Penal Code section 1202.45.
All statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL SUMMARY
The first amended information charged Wilkins with (1) murder in violation of section 187, subdivision (a), (2) robbery in violation of section 211, and (3) assault with a firearm in violation of section 245, subdivision (a)(2). The first count alleged two special circumstances and a firearm enhancement. The murder was allegedly committed during the commission of a robbery (§ 190.2, subd. (a)(17)(A)) and burglary (§ 190.2, subd. (a)(17)(G)). The firearm enhancement alleged Wilkins discharged/used a firearm during the commission of the murder within the meaning of section 12022.53, subdivisions (b), (c), and (d). The second count alleged Wilkins personally used a firearm within the meaning of section 12022.53, subdivision (b).
On August 8, 2012, Wilkins, who was wearing a baseball cap, blue jeans and a white shirt, stopped Taylor Keeton and a friend, Thomas Ramos. Wilkins asked if Keeton knew where he could find some marijuana, and if Keeton had any money to spare. Keeton replied negatively to both questions. Wilkins fidgeted a bit, and then pulled out a gun, told Keeton he should never stop for a nigger, and ordered Keeton to empty his pockets. Wilkins took a lighter, cell phone, and some change. Wilkins then headed towards Bear Creek. Keeton picked up the remainder of his things and walked home. When he got home, Keeton called the police and reported the incident. Ramos confirmed Keeton's testimony, but added that Wilkins also took their wallets.
The events described in the factual summary occurred in Merced on August 8, 2012.
Shortly thereafter, Beera Winzer was at her mother's apartment when she observed a light skinned black man with dreadlocks enter a neighbor's apartment where Curtis Freeze lived with his caretaker, Ramon Garza. The man was wearing a white shirt, blue jeans, and a black hat. As Winzer was walking away she heard three gunshots. She ran to the apartment and saw Garza lying on the floor. The black man who had entered the apartment had blood on one side of his shirt. He limped off towards the creek. Winzer identified Wilkins as the man she saw limping from Garza's apartment. She described Wilkins that day as "unusual."
According to Freeze, on the day of the shooting, he was sitting in his recliner in the living room. A man came in and shot Garza. Garza had been protecting Freeze, and wrestled with the man. The man had pushed Freeze down causing Freeze to break his collar bone. Freeze described the perpetrator as Mexican. Freeze then recalled he had told the police the perpetrator was a black man with corn rows. The man demanded money from Freeze.
Kevin Wilkin lived in the same apartment complex as Freeze and Garza. He heard a loud bang like a door slamming. He went outside his apartment door to investigate. As he was standing outside his door, he heard three gunshots. Kevin Wilkin saw Wilkins run from Garza's apartment toward Bear Creek with a gun in his hand.
At around the same time, Maria Santo was leaving a doctor's appointment. As she approached her vehicle she heard a pop like fireworks. A few seconds later she heard another pop. When she looked up, she saw a man run across the street toward Bear Creek. The man, who she subsequently identified as Wilkins, had blood on his shirt and appeared to be holding a handgun.
That afternoon, Christopher Gimlin was floating in Bear Creek when he observed a black man with dreadlocks jump into the creek. The man was wearing a brown shirt and blue pants when he jumped in. The shirt may have been wet before he jumped into the creek. The man threw what appeared to be a gun to his side as he jumped in. The man got out of the creek on the other side. In a field show up later that afternoon, Gimlin was able to identify the man as Wilkins.
Officer Nicholas Dejong was the first law enforcement officer on the scene. He observed Curtis Freeze sitting in a reclining chair, and a Hispanic male lying face down on the floor of the kitchen in what appeared to be a pool of blood. When Dejong checked the man, he appeared to be deceased. Emergency personnel were called to the scene to provide medical assistance. A blue hat was found in the kitchen, where it appeared there may have been a struggle.
Officer Joseph Perez also responded to the scene. He and his partner located Wilkins, who matched the suspect's description. Wilkins was wearing only boxer shorts at the time. He had wet clothes in his hands which he dropped. The officers handcuffed and detained Wilkins. The clothes Wilkins was carrying were a pair of blue jeans, two socks, and a pair of shoes. The search of the pants recovered two cell phones, a lighter, and some coins. One of the cell phones was identified as Keeton's.
Officer Joseph Henderson was present when a bloody shirt was collected in the backyard of a residence.
Detective Joseph Deliman observed what appeared to be blood on Wilkins when he came in contact with him that afternoon. Two samples were taken by Deliman and logged into evidence in the case. Deliman also performed a gunshot residue test on Wilkins that day at the police department.
Detective Chris Russell described evidence of a struggle in the kitchen area where Garza was killed. Four shots were fired within the apartment, with all of the bullets being recovered. A cap was recovered from the kitchen near Garza.
Detective Russell interviewed Wilkins after he was arrested. In general, Wilkins denied any involvement in the shooting. The recording of the interview was played for the jury.
Detective Deliman was present the following day when the police dive team recovered a handgun from Bear Creek. The handgun was preserved and taken directly to the Department of Justice laboratory. There were four expended cartridges in the handgun, and one live round. A breathalyzer test performed on Wilkins approximately three hours after the shooting showed a blood alcohol content of .11 percent.
The parties stipulated that the victim, Ramon Garza, died as a result of a gunshot wound that entered his right upper arm and continued into the chest. The projectile penetrated both lungs, fractured two ribs, penetrated the esophagus, and tore the thoracic aorta. There was no exit wound, and the bullet was recovered during the autopsy.
Three Department of Justice criminalists testified at trial. The first, Jennai Lawson, tested several items of evidence in the case. From her testing, she determined the sweatband of the hat recovered from the scene contained Wilkins' DNA, and, to a lesser extent, the DNA of a second person. Blood found on the hat was from Ramon Garza. Garza was the major contributor of the blood found on Wilkins's ear and face.
Statistically, one in 2.7 sextillion African-Americans would have the same DNA profile.
Statistically, one in 300 quintillion Hispanics would have the same DNA profile.
The second criminalist, Meagan Gallagher, testified she found particles of gunshot residue on the swabs of Wilkins's hands taken by Detective Deliman. The swab for the right hand had three particles of gunshot residue (lead, barium, and antimony), while the swab for the left hand had two particles with two of the elements (antimony and barium).
The third criminalist, Scott Bauer, testified regarding the handgun recovered by law enforcement from the creek. He compared bullets recovered from the victim and the scene with rounds he test fired from the recovered handgun. He could not say the rounds fired at the scene came from the recovered handgun, nor could he exclude the recovered handgun as being the weapon that fired the rounds at the scene. The recovered handgun was the same caliber as the handgun that fired the rounds at the scene, and the remaining intact bullet in the recovered handgun was similar to the bullets left at the scene. The weapon that was fired at the scene and the recovered handgun both had six grooves and a right twist.
Wilkins testified in his defense. Prior to testifying, defense counsel confirmed on the record that Wilkins was fully advised of his right to choose whether he testified, and Wilkins confirmed it was his desire to testify. Immediately prior to taking the stand, the trial court reminded Wilkins that it was his choice whether he testified or not, and confirmed he wished to testify.
Wilkins was almost 23 at the time of trial. He did not recall anything about the interview with Detective Russell that had just been played for the jury. He admitted he had problems since he was a child, and that he had been diagnosed with a mental illness. As a child, Wilkins was told he had attention deficit/hyperactivity disorder. He has also been told he was bipolar. He had difficulty with teachers, other students, and family members. He was taken for evaluation and prescribed medication. The only medication he recalled being prescribed was Risperdal and Cogentin. It was hard for Wilkins to learn in school. By age 14 Wilkins was in juvenile hall, where he received mental health treatment and was given medication. The medication helped, but Wilkins did not like the side effects. Most of his high school years were spent in juvenile hall. He graduated from high school simply because he attended class.
Wilkins stopped taking medication when he left juvenile hall at age 18. He was not on any medication at the time of the murder. He was, however, drinking and ingesting crystal methamphetamine.
On the day of the murder he was living with his grandmother. He left the house with his cousin, who gave him a ride. When he left the house he was wearing jeans, a white t-shirt, shoes, and a Warriors hat, presumably referring to the Golden State Warriors. Before he left the house he had ingested methamphetamine. The two went to the cousin's apartment and consumed alcohol. He also recalled snorting a line of crystal methamphetamine.
Wilkins did not recall leaving his cousin's apartment. In fact, the next event he recalled was being stopped by the police. Specifically, Wilkins testified he did not remember his confrontation with Keeton and Ramos, did not remember entering Garza's apartment or anything that occurred therein, did not recall any fight, did not recall entering or leaving Bear Creek, and did not recall throwing a gun. He recalled getting into a police vehicle, but he did not recall being driven to the police station. He also recalled his face being swabbed for blood, and being put into a jail cell.
On cross-examination, Wilkins testified he did not remember if he killed Garza. His last memory from his visit to his cousin's house was snorting the line of crystal methamphetamine. Wilkins also admitted owning the handgun believed to have been used in the murder. However, he did not have it with him on the day of the murder. Wilkins left the handgun at his home. He did not know how the handgun ended up in the creek.
Psychologist Phillip Hamm, Ph.D., testified on Wilkins's behalf. Hamm interviewed Wilkins six months after the murder. He also reviewed the police reports related to the case, the police interview of Wilkins, his mental health records from Merced County, his mental health records from juvenile hall, and his medical records from the jail.
Hamm opined Wilkins suffers from bipolar manic psychotic disorder. He explained that bipolar disorder is a mood disorder which impacts or impairs the individual's mental and psychological functions. In the manic phase of the disorder, the individual exhibits out-of-control behavior, speeded up thought process, lack of impulse control, impaired judgment, and outrageous behavior. Many individuals are irritable, can't control their tempers, go into rages, and exhibit violent behavior. They can also have auditory and visual hallucinations, delusions, paranoid beliefs, and terrible judgment.
There are three phases of bipolar illness, the manic phase, depressed phase, and the quiescence phase where the individual is in a more or less normal state. During any of the three phases, the individual will have ups and downs. For example, the manic phase can last up to a year. At times the individual will be more manic, and at other times less manic. Individuals in this state tend to impulsively use drugs, which can impact the manifestations of their mental illness. A person using alcohol in this phase will become more out of control, more impulsive, more paranoid, and have worse judgment. The use of methamphetamine, a stimulant, also causes a person in a manic phase to become more impulsive, full of energy, unable to control their energetic impulses, and more out of control. When such an individual ingests both alcohol and methamphetamine at the same time, the result is a person with even fewer inhibitions and more energy.
Typically, someone with bipolar disorder will begin exhibiting symptoms in childhood. The typical progression is a very active toddler/preschooler, problem child in the early grades, perhaps diagnosed with attention deficit-hyperactivity disorder, progressing to more out-of-control behavior and more impulsive and violent behavior. If the individual starts taking drugs they become more out of control, more violent, and have more trouble with authorities.
Psychosis is a brain disorder, and if there is something wrong with the brain, it affects the person's behavior. Memory may be impaired. Psychotic individuals remember things in bits and pieces, and may even be confused about what they remember.
Risperdal is a mood stabilizer which helps people with bipolar disorder. Cogentin is a drug used to treat the side effects of Risperdal.
Hamm reviewed a video recording of Wilkins's interview with the detectives. He noted Wilkins could not remember important aspects of what happened, did not know why he was arrested, didn't know what happened to his clothes, didn't know how he got cut on his eye, displayed mumbled and rambling speech that made no sense, and was clearly disoriented. Hamm described the interview as "a rambling series of confusion that the detective tried to get a coherent story from him, but Mr. Wilkins was just confused, required repeated refocusing, was agitated, had difficulty expressing or explaining himself."
Hamm described Wilkins's behavior after the detectives left the interview room, and testified those behaviors were consistent with a bipolar manic psychotic disorder. Wilkins's inability to recall any of the relevant events that occurred on the day of the murder was consistent with psychotic amnesia.
Defense counsel posed a hypothetical question to Hamm. He asked Hamm to assume the following facts. A man with a history of bipolar disorder with manic and psychotic aspects, who was not taking medication, but was using alcohol and methamphetamine, goes into a self-described blackout period. During that blackout period, the man comes in contact with two men and takes property from them at gunpoint. Minutes later the man enters an apartment, demands money at gunpoint, and shoots one of the men in the apartment. The man then runs from the apartment. Based on those facts, Hamm was not able to express an opinion about whether the man was able to form the specific intent to commit any crime.
During his closing argument, the prosecutor initially focused on the evidence proving that it was Wilkins who committed the crimes, and encouraged the jury to return with a guilty verdict. He pointed out that Wilkins's behavior was consistent with someone with a specific goal, and his actions were directed at achieving that goal. The prosecutor asserted Wilkins not only robbed Keeton and Ramos, but he entered Garza's apartment to rob him, and during the robbery he shot and killed Garza. Wilkins then ran from the scene, jumped in the creek to remove evidence, disposed of the gun and bloody t-shirt, and then denied any involvement in the crime.
Defense counsel essentially conceded that Wilkins committed the charged acts, but focused on his mental state to argue he was not guilty of the crime. He pointed out that Wilkins had a long history of mental illness, Hamm had confirmed that mental illness diagnosis, and that Hamm had explained the effect that mental illness, when combined with the alcohol and methamphetamine, would have on Wilkins's thought process.
In rebuttal, the prosecutor argued, in essence, that Hamm was a hired expert who formed the opinion he was paid to render. He argued the facts did not support Hamm's testimony, and the jury should reject it.
After relatively short deliberations, the jury found Wilkins guilty as charged, found each special allegation true, and found each enhancement true.
The trial court sentenced Wilkins to the midterm of three years on the robbery count, plus 10 years for the firearm enhancement. It stayed the sentence on the assault with a firearm charge. It then sentenced Wilkins to life without the possibility of parole on the murder count, plus 25 years on the firearm enhancement.
DISCUSSION
Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 asserting that after a thorough review of the file she could not identify any arguable issues. After our independent review of the record, we agree there are no arguable issues in this case.
Wilkins did not have a perfect trial, but he received a fair trial which is all he is entitled to under the Constitution. (Brown v. United States (1973) 411 U.S. 223, 231; People v. Anzalone (2013) 56 Cal.4th 545, 556.) While perhaps defense counsel could have fashioned a more appropriate hypothetical question for Hamm, or objected during the prosecutor's closing argument when he referred to statements in mental health exams which were never entered into evidence, these issues did not rise to the level of ineffective assistance of counsel. Indeed, it is doubtful Wilkins could demonstrate any prejudice no matter what argument is made. The evidence establishing Wilkins was the perpetrator was overwhelming. Six witnesses identified Wilkins as the perpetrator. His hat, identified by DNA from the sweatband, was found at the scene. When arrested, he had Garza's blood on his face and on his ear. There simply was no doubt Wilkins killed Garza.
Moreover, Wilkins was examined by numerous mental health experts, with only one opining Wilkins was not legally sane at the time of the crimes. Defense counsel confirmed with Wilkins that under the circumstances, the best option was to withdraw the not guilty by reason of insanity plea.
With no support for a not guilty by reason of insanity defense, and faced with the overwhelming evidence of guilt, defense counsel made a reasonable tactical decision to implicitly admit Wilkins committed the acts, but argue Wilkins did not have the required mental state because of his mental illness and consumption of alcohol and methamphetamine.
However, the circumstantial evidence of Wilkins's mental state strongly suggested he knew what he was doing. He first robbed Keeton and Ramos at gunpoint, then forced his way into Garza's apartment. He demanded money and, when no money was forthcoming, fought with and shot Garza. He then ran from the apartment, jumped into the creek in what was, arguably, an attempt to remove evidence, disposed of the handgun, disposed of his blood covered shirt, tried to disguise the fact he was wet by removing his clothes, and then denied any involvement in the crime. Each of these actions strongly suggests Wilkins knew he had committed a serious crime, and was attempting to avoid capture for that crime. Each of these actions was also essentially inconsistent with the claim he blacked out during the time period in which the crimes were committed.
By letter dated April 22, 2016, we invited Wilkins to inform this court of any issues he wished us to address in this appeal. Wilkins responded to our letter and suggested his state of mind was such that he could not be guilty of the crimes. We have discussed the evidence on this issue above, and the evidence supporting Wilkins's sanity was more than sufficient to support the judgment. Moreover, Wilkins concurred in the decision to withdraw his not guilty by reason of insanity plea because of the lack of expert support for that plea. While Wilkins may feel he was insane at the time the crimes were committed, the reports of all the experts who examined him except one concluded he was legally sane, and he was competent to stand trial. Therefore, even if Wilkins had chosen to plead not guilty by reason of insanity, the jury would undoubtedly have rejected the plea. The decision to withdraw the not guilty by reason of insanity was a reasonable tactical decision under these facts.
On the record, and outside the presence of the jury, defense counsel confirmed with Wilkins that they had reviewed and discussed Dr. Zimmerman's report. Defense counsel also confirmed that (1) Dr. Zimmerman did not feel Wilkins met the definition of legal insanity at the time the crime was committed, (2) four out of five other mental health professionals who had examined Wilkins had also concluded he was not legally insane, (3) to enter into evidence the favorable opinion of that one mental health professional, Wilkins would have to waive his privilege with regard to his stay at Napa State Hospital for the time period he was treated because he was deemed incompetent to stand trial, including the observations made at Napa State Hospital, (4) the reports and observations from Napa State Hospital strongly suggested Wilkins was not insane at the time the crime was committed, (5) the juror questionnaires suggested jurors were not entirely open to a not guilty by reason of insanity plea, (6) defense counsel's belief it was important to remain credible in the eyes of the jury, and (7) under all of the circumstances, defense counsel recommended withdrawing the not guilty by reason of insanity plea. Defense counsel and the trial court both confirmed with Wilkins that it was ultimately up to him to decide if the not guilty by reason of insanity plea would be withdrawn, and that Wilkins wanted to withdraw the plea. --------
Finally, there are no issues related to the sentencing imposed by the trial court. The trial court acted well within its discretion in choosing the sentence and fines it imposed. Appellate counsel asserts the trial court erroneously imposed a parole revocation fine pursuant to section 1202.45 since Wilkins was sentenced to a term of life without the possibility of parole. (See, e.g., People v. Samaniego (2009) 172 Cal.App.4th 1148, 1184 (Samaniego); People v. Jenkins (2006) 140 Cal.App.4th 805, 819 (Jenkins); People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1181 (Oganesyan).) Appellate counsel asserts the error was corrected on the abstract of judgment where no parole revocation fine was imposed.
We agree error occurred, but not the error identified by appellate counsel. The cases cited by appellate counsel were correctly decided, but all addressed the situation where the trial court imposed only indeterminate sentences. In this case, the trial court imposed a determinate sentence for the robbery of Keeton and Ramos in addition to the indeterminate sentence for the murder of Garza.
The Supreme Court has explained a parole revocation fine must be imposed when a determinate term and an indeterminate term are imposed in the same proceeding. "Finally, defendant contends the $10,000 parole revocation fine imposed but suspended under section 1202.45 was unauthorized. We disagree. Defendant here, in addition to his death sentence, was sentenced (for counts 5, 6, 7, 9, 10, 11 and 12) to a determinate prison term under section 1170. Section 30000, subdivision (a)(1) provides that such a term 'shall include a period of parole.' Section 1202.45, in turn, requires assessment of a parole revocation restitution fine '[i]n every case where a person is convicted of a crime and whose sentence includes a period of parole.' The fine was therefore required, though by statute and the court's order it was suspended unless and until defendant was released on parole and his parole was revoked." (People v. Brasure (2008) 42 Cal.4th 1037, 1075.) The Supreme Court distinguished Oganesyan because no determinate term of imprisonment under section 1170 was imposed. (Brasure, supra, at p. 1075.) In Samaniego and Jenkins, as in Oganesyan, no determinate term of imprisonment was imposed.
Because the trial court imposed a determinate sentence for the robbery of Keeton and Ramos, the trial court correctly imposed a parole revocation fine under section 1202.45. The error occurred in the preparation of the abstract of judgment which incorrectly omits the imposed fine. We will remand the matter to the trial court for preparation of a corrected abstract of judgment which includes the parole revocation fine imposed by the trial court.
DISPOSITION
The judgment is affirmed. The matter is remanded to the trial court to prepare a corrected abstract of judgment to include the erroneously omitted parole revocation fine of $10,000 imposed pursuant to section 1202.45, which was stayed pending successful completion of parole.