Opinion
C083840
04-16-2018
THE PEOPLE, Plaintiff and Respondent, v. ALAMAR CYRIL HOUSTON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CRF153694)
Defendant Alamar Cyril Houston appeals from numerous convictions arising from his hitting four people while driving a stolen vehicle. He contends (1) the trial court violated his right to present a defense when it excluded three witnesses; (2) defense counsel rendered ineffective assistance by not making a Romero request to strike a strike prior; and (3) the court erred when it stayed, instead of struck, a prior prison term enhancement that was based on the strike prior. Except to remand for the trial court to strike the prior prison term enhancement, we affirm the judgment.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
FACTUAL AND PROCEDURAL BACKGROUND
On June 30, 2015, defendant stole a pickup truck and abandoned it at the Sacramento airport. There, he stole a small SUV from a rental car agency. That afternoon, he yelled at a motorcyclist and used the SUV to hit him twice, injuring the motorcyclist's arm. Then he yelled at another motorcyclist that he was going to kill him, tie a chain around his body, and drag him to "South Sac." That evening, defendant hit three cyclists with the SUV, seriously injuring all of them. One cyclist suffered critical brain injuries that still affect him. Minutes later, defendant hit a drug store cashier in her face with his fist.
Police apprehended defendant that night after a high-speed chase where defendant ran red lights, drove against traffic, and drove the wrong way on a one-way street. He fled on foot after trying to block a police car with the SUV, but police were able to apprehend him with a K9 officer.
Defendant was treated at a hospital. His heart rate was abnormally high. He was anxious and "restlessly agitated." He was extremely thin with sunken eye sockets such as one might see in a long-term drug abuser. His muscles were tense and he was grinding his teeth (bruxism), but he showed no emotion. At one point, he recited a series of numbers several times. At another point, he carried on a conversation with someone named Michael in an empty room for 20 to 30 minutes. He said he had not slept in four days, and he admitted he ran from the police and "ran five people over."
At the police station, defendant's blood twice tested negative for alcohol, amphetamines, antidepressants, anesthetics, benzodiazepine, and cannabinoids.
A highway patrol officer who was an expert on drug use interviewed defendant. Defendant exhibited symptoms common with methamphetamine use. He stated he had smoked methamphetamine since he was eight years old, and he had been up for five days smoking it. Based on defendant's symptoms, the officer concluded defendant had ingested some sort of stimulant that created impairment. Defendant's blood test results did not change the officer's opinion, as hundreds of synthetic stimulants exist but the test detects only a handful of drugs, what the officer called the "trending drugs."
A defense psychiatrist, Jennifer Chaffin, M.D., began seeing defendant on July 3, 2015, three days after his crime spree. She placed him on an antipsychotic medicine six days after the spree. Over the next few weeks, defendant was delusional and engaging in bizarre behaviors. At one point, he had a piece of metal stuck to his head which he said was for brain waves. The following month, he appeared grossly delusional. He espoused conspiracy theories and expressed and displayed grandiose delusions. Based on defendant's behavior and his medical records, Dr. Chaffin determined defendant had a primary psychotic disorder such as schizophrenia or schizoaffective disorder that was exacerbated by his ingestion of controlled substances. Dr. Chaffin saw defendant for the last time on August 10, 2015.
On rebuttal, two mental health professionals, a psychiatrist who interviewed defendant remotely some months after the crime spree and a psychiatrist who treated defendant some years earlier, concluded defendant was malingering and did not suffer from schizophrenia.
The jury found defendant guilty of four counts of assault with a deadly weapon, three counts of hit-and-run causing injury, two counts of vehicle theft, two counts of evading a peace officer, simple assault on the drug store cashier, and resisting a peace officer. It found true one enhancement for personal infliction of great bodily injury.
The jury found defendant not guilty of three counts of attempted murder, one count of driving under the influence of drugs causing injury, one count of unlawful use of a controlled substance, and assault on the drug store cashier by force likely to produce great bodily injury.
Defendant initially pleaded not guilty by reason of insanity, but during the sanity phase, he withdrew his plea.
The trial court found true a strike prior and four prior prison terms. It sentenced defendant to 35 years in state prison.
DISCUSSION
1.0 Exclusion of Defense Evidence
Defendant contends the trial court violated his right to present a defense when it refused to admit testimony from three witnesses whose testimony he claims would have supported his case. Defense counsel's theory was that due to a mental illness, defendant did not have the ability to form the specific intent necessary for many of the charged crimes. The excluded witnesses would have testified to defendant's mental health.
The jury found defendant not guilty on some of those crimes, but it found him guilty of two counts of vehicle theft (Veh. Code, § 10851, subd. (a)—counts 13 and 14), one count of evading a peace officer with reckless driving (id., § 2800.2—count 15), and one count of evading a peace officer while driving in the opposite direction (id., § 2800.4—count 16). Defendant asks us to reverse the judgment on those counts.
We disagree with defendant's contention, and we hold any error was harmless.
1.1 Background
1.1.1 Kristy Schreader
Defense counsel sought to call Kristy Schreader, a mental health professional at the Yolo County Jail, to testify. She would testify that on September 30, 2015, defendant told her he was "in jail for attempted murder on two robots in Davis. They are not human." The court said it was not inclined to allow the testimony because the statement was hearsay by defendant, and Schreader was not an expert who might have used that statement in rendering an opinion in court.
Defense counsel argued he was not offering the statement for the truth of the matter asserted. Rather, he offered it to show defendant's mental state and to support Dr. Chaffin's earlier testimony that defendant was schizophrenic. The court said it would likely admit the testimony at the sanity phase, but the testimony was not admissible in the guilt phase.
1.1.2 Elzina Hays
Defense counsel requested to call defendant's mother, Elzina Hays, to address the issue of malingering. Counsel said Hays would testify that defendant has had a mental disease since he was a child, and she was aware of that. Hays would testify that after defendant's father was killed suddenly when defendant was seven years old, she noticed profound changes in his personality. She visited him at multiple mental institutions, saw his changes, and knew his medications.
The prosecutor objected to Hays's testimony. He argued if Hays was going to address defendant's mental state since the time defendant was seven years old, she would open the door to questioning about defendant's mental state in his prior convictions, some of which were specific intent crimes, including robbery and forgery. The prosecution also claimed Hays's testimony was prejudicial under Evidence Code section 352.
Undesignated statutory references are to the Evidence Code. --------
The trial court excluded Hays's testimony in the guilt phase under section 352. Hays was a lay witness and not an expert on defendant's mental illness. The court said her testimony also would "open the door to a lot of side roads and side alleyways. Her observations, as a lay witness, would have limited relevance and that relevance, in the Court's opinion, is outweighed by undue consumption of time and possible confusion."
1.1.3 Captane Thomson, M.D.
Defense counsel asked to call Captane Thomson, M.D., as an expert and percipient witness. A psychiatrist, Dr. Thomson dealt with defendant after Dr. Chaffin ended her treatment of him, and he also evaluated defendant for competency in 2016. Defense counsel wanted to call him because he was aware of defendant's mental state before and after being medicated and would testify that defendant responded favorably to those medications. Counsel argued the jury had a right to understand that defendant's demeanor in court was not what it was prior to his receiving medication. Also, Dr. Thomson's testimony would strengthen Dr. Chaffin's opinion that defendant had a mental disease.
The trial court excluded Dr. Thomson from testifying. It ruled evidence of defendant's mental state after the crimes had occurred had little relevance to his mental condition at the time he committed the crimes. Since Dr. Thomson did not treat or observe defendant prior to the day of the crimes, he could not provide relevant evidence on any preexisting mental health condition that defendant suffered.
1.1.4 Jury Instruction
The trial court instructed the jury on defendant's defense with CALCRIM No. 3428, entitled "Mental Impairment: Defense to Specific Intent or Mental State." The court instructed in pertinent part as follows:
"You have heard evidence that the Defendant may have suffered from a mental disease, defect, or disorder. You may consider this evidence only for the limited purpose of deciding whether at the time of the charged crime or enhancement, the Defendant acted or failed to act with the intent or mental state required [for that crime]. [¶] . . . [¶]
"The People have the burden of proving beyond a reasonable doubt that the Defendant acted or failed to act with the required intent or mental state, specifically the intent to permanently deprive the owner of his or her property.
"If the People have not met this burden, you must find the Defendant not guilty of Counts 13 and 14 [(the vehicle theft counts)].
"The People have the burden of proving beyond a reasonable doubt that the Defendant acted or failed to act with the required intent or mental state, specifically the intent to evade.
"If the People have not met this burden, you must find the Defendant not guilty of Counts 15 and 16 [(the evading a peace officer counts)]."
1.2 Analysis
Defendant asserts the trial court's exclusion of the three witnesses' testimony denied him his right to present a defense. We conclude the trial court did not abuse its discretion in refusing to admit Hays's and Dr. Thomson's testimony, but it did err when it refused to admit Schreader's testimony on the basis of hearsay. Nonetheless, we find the error harmless, as other evidence established defendant had the requisite specific intent and it sufficiently presented defendant's defense to the jury.
"A trial court's decision to admit or exclude evidence is reviewed for abuse of discretion, and it will not be disturbed unless there is a showing that the trial court acted in an arbitrary, capricious, or absurd manner resulting in a miscarriage of justice. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) Evidence Code section 352 gives the trial court discretion to exclude evidence if 'its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.' " (People v. Wall (2017) 3 Cal.5th 1048, 1069.) We review a trial court's ruling under section 352 for abuse of discretion. (People v. Lewis (2001) 26 Cal.4th 334, 372-373.)
"We do not reverse a judgment for erroneous admission of evidence unless 'the admitted evidence should have been excluded on the ground stated and . . . the error or errors complained of resulted in a miscarriage of justice.' (Evid. Code, § 353, subd. (b); see also People v. Rodrigues (1994) 8 Cal.4th 1060, 1124; People v. Watson (1956) 46 Cal.2d 818, 836 [error is harmless under our state constitutional standard unless it is 'reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error'].)" (People v. Earp (1999) 20 Cal.4th 826, 878.)
The trial court did not abuse its discretion when it refused to admit Hays's testimony under section 352. Her testimony regarding her observations of defendant throughout his life and since the onset of his mental illness was potentially relevant. But the trial court did not abuse its discretion by determining her testimony's probative value was substantially outweighed by its probable prejudicial impact. If Hays testified to observing defendant's mental health throughout his life, she would open herself to impeachment based on defendant's numerous prior convictions where he was found to have the requisite intent. Defendant had 16 prior adult convictions, including the specific intent crimes of vehicle theft, forgery, second degree robbery, and escape. The court could reasonably determine that allowing Hays to testify would open the door "to a lot of side roads and side alleyways," or in other words, to impeachment that would unduly prolong the trial, confuse the issues, or even prejudice defendant.
The trial court also did not abuse its discretion by not admitting Dr. Thomson's testimony. Defendant argued Dr. Thomson's testimony was relevant because he had seen defendant improve from when he started receiving medications under Dr. Chaffin until a later time. But the court could reasonably determine the evidence was not relevant because it did not assist the jury in understanding defendant's state of mind at the time he committed the crimes.
Defendant argues for the first time that Dr. Thomson examined defendant sooner after the crimes than he had originally claimed. Dr. Thomson testified in the sanity phase that he examined defendant only one month after the crimes occurred and then about five months later. Defendant contends the fact Dr. Thomson evaluated defendant so soon after the crimes shows the doctor's testimony was relevant.
Defendant, however, did not raise this point with the trial court when he sought to introduce Dr. Thomson's testimony in the guilt phase, and he thereby forfeits it here. " '[T]o preserve an alleged error for appeal an offer of proof must inform the trial court of the "purpose, and relevance of the excluded evidence . . . ." (Evid. Code, § 354, subd. (a).) This is in accord with "the general rule that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal." ' " (People v. Valdez (2004) 32 Cal.4th 73, 108.)
We agree the trial court erred when it excluded Schreader's testimony on the basis of hearsay. Hearsay is "evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (§ 1200, subd. (a).) Schreader's testimony of what defendant said to her was not being offered for the truth of defendant's comment. Defendant said he was "in jail for attempted murder on two robots in Davis. They are not human." This comment obviously was not offered to prove defendant attempted to murder two robots. It was offered to establish defendant's state of mind and the effect of his illness on his ability to form intent.
The error, however, was not prejudicial under any standard of review. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710]; People v. Watson, supra, 46 Cal.2d at p. 836.) The jury would not have reached a different verdict on the vehicle theft and evasion crimes had Schreader's statement been admitted into evidence. There is no doubt defendant stole the vehicles and evaded the peace officers, and his actions in doing so demonstrate he harbored specific intent to perform those crimes. After crashing the first stolen car, defendant walked to a car rental agency at the airport. He told an agent he wanted to rent a car. Then he ran toward the parked SUV, which had keys in its ignition. The agent told him he was not going where he was supposed to go, but defendant got in the car. Another employee ran to the car and pulled on the door handle, but defendant had already shifted the car into drive, causing the doors to lock, and he drove away. There is no doubt defendant specifically intended to permanently deprive the vehicle owners of their property.
There is also no doubt defendant intended to evade the police. A police officer pursued defendant in his patrol car with lights and sirens activated, but defendant did not stop. He led the officer on a high-speed chase through city streets, running multiple red lights, driving against traffic, and driving down the wrong way of a one-way street. When he stopped the car in an alley, he tried to block the officer's car in before he fled on foot. It took the officer and his K9 officer to bring defendant down. This evidence, particularly his attempt to block the police car, shows defendant specifically intended to evade the police. Schreader's statement would not have changed the jury's verdict on these charges.
Defendant also was not denied his right to present a defense. " ' "[T]he ordinary rules of evidence do not impermissibly infringe on the accused's [constitutional] right to present a defense. Courts retain . . . a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice." ' " (People v. Lawley (2002) 27 Cal.4th 102, 155.)
Dr. Chaffin expressed her opinion that defendant suffered from schizophrenia at the time of his crime spree, and that his mental condition deteriorated further in the following weeks. She described defendant's behavior on the day of the offenses and some of the comments he said that made no sense. The excluded evidence did not show defendant's mental state on the day he committed his crimes. It was at best cumulative of Dr. Chaffin's testimony and other victims who heard defendant that day.
Additionally, defendant argued his defense to the jury. Defense counsel clearly asserted defendant lacked the requisite intent due to his mental illness. Counsel stated, "You can't talk about [defendant] without talking about years of mental illness." "[Dr. Chaffin] told you that a person with schizophrenia, with psychosis, psychotic behavior, lives in a world of fragmented reality, fragmented facts." "[T]he real broad question that we're dealing [with] is, Is that action the product of mental disease as the instructions tell you to consider it?" The trial court's refusal to admit the contested evidence thus did not deny defendant the opportunity to present a defense.
Defendant further contends the trial court should have admitted the evidence because the prosecution presented expert opinion on rebuttal that defendant was malingering. He argues he could have more effectively refuted the rebuttal evidence and more strongly shown he had schizophrenia had the court admitted the contested evidence. But defendant's right to present a defense does not include the right simply to introduce more evidence supporting his theory, or to introduce irrelevant, cumulative, or prejudicial evidence. (§ 352.) Dr. Chaffin clearly expressed her opinion that defendant suffered from a severe mental illness and his behavior was a result of that illness. The trial court did not abuse its discretion by determining the additional evidence proposed by defendant would be cumulative and prejudicial.
2.0 Ineffective Assistance of Counsel
Defendant contends his trial counsel rendered ineffective assistance by not making a Romero motion to strike his prior serious felony conviction. We disagree. Defendant has not shown he was prejudiced by defense counsel's action.
Defendant argues that counsel's decision not to make a Romero motion was ineffective assistance because it was reasonably probable the trial court would have granted it. He asserts the facts supporting a Romero motion were strong: The strike conviction, a robbery, was 15 years old at the time of sentencing; defendant's record consisted of only misdemeanors and nonviolent felonies since he committed the robbery; his mental illness indicated he was outside the spirit of the three strikes law sentencing scheme; and, even if the strike was stricken, he would serve a substantial sentence simply due to the number of convictions arising from his crime spree. This showing is not enough. To establish ineffective assistance of counsel, defendant must show counsel's performance "fell below an objective standard of reasonableness" (Strickland v. Washington (1984) 466 U.S. 668, 688 [80 L.Ed.2d 674, 693]) and "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different" (id. at p. 694 ). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Id. at p. 694 .) Defendant cannot make this latter showing of prejudice. It is not reasonably probable the court would have granted the motion to strike had defense counsel made it.
When it sentenced defendant, the trial court was well aware of defendant's mental health history. Not only was the history presented in the guilt phase, but defense counsel emphasized it and defendant's mother testified to it at sentencing. Moreover, the court at sentencing stated it had considered defendant's mental health in determining the sentence. Yet the court did not see fit to strike the prior strike on its own motion. To the contrary, the court expressly stated defendant's conduct and criminal history required that he receive the maximum sentence authorized under the law. The court said: "There is a mental health component to Mr. Houston's life, I have taken that into consideration, notwithstanding that the aggravating factors far outweigh the mitigating factors, and the upper-base term is appropriate in this case.
"Before I sentence you, Mr. Houston, it is the court's ultimate conclusion that you are a danger to the public and a menace to civilized society. You must be separated from society for the maximum term permitted under the law.
"Your crimes in this case displayed a level of evil and depravity rarely seen in this court. You intentionally ran a stolen vehicle into bike riders from behind, you unprovoked punched a female clerk in the face, these are cowardly acts against strangers. You inflicted serious harm on your victims, in fact, for at least three of your victims, you inflicted lasting damage that literally changed the trajectory of their lives.
"The Court will now change the trajectory of your life."
The trial court's statement indicates there is no reasonable probability the court would have granted a Romero motion had defense counsel made one. The court had the opportunity to reduce defendant's sentence by striking the strike, but it expressly, and adamantly, chose not to do so. A Romero motion by defense counsel would not have changed the court's decision. Showing no prejudice, defendant cannot establish he suffered ineffective assistance of counsel.
3.0 Staying the Prior Prison Term Enhancement
At sentencing, the trial court imposed the prior serious felony enhancement based on defendant's 2001 robbery conviction, and it stayed a prior prison term enhancement imposed under Penal Code section 667.5 also on the same robbery conviction [alleged in the information as case enhancements a and e, respectively]. Defendant contends the trial court erred by staying, instead of striking, the prior prison enhancement. The People agree with defendant, and so do we.
Where enhancements for a prior prison term and a prior serious felony arise from the same conviction, a trial court may impose only the greater enhancement and must strike the lesser. (People v. Jones (1993) 5 Cal.4th 1142, 1152-1153.) Because the trial court imposed both enhancements on the same prior conviction, we will direct it to strike the lesser prior prison term enhancement.
DISPOSITION
This matter is remanded solely for the trial court to strike the stayed prior prison term enhancement imposed under Penal Code section 667.5 based on defendant's 2001 robbery conviction (identified in the information as case enhancement e), and to certify a corrected abstract of judgment and forward it to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
BUTZ, Acting P. J. We concur: HOCH, J. RENNER, J.