PEOPLE v. AMREMI

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Court of Appeal, Second District, Division 5, California.

The PEOPLE, Plaintiff and Respondent, v. Joseph AMREMI, Defendant and Appellant.

Cr. 38767.

Decided: February 11, 1982

Jonathan Milberg, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Robert F. Katz and Stephen M. Kaufman, Deputy Attys. Gen., for plaintiff and respondent.

Defendant appeals from a judgment sentencing him to state prison upon revocation of probation.   In 1976 appellant was charged with one count of murder and two counts of assault with a deadly weapon, all with use of a firearm.   The incident arose out of a family argument.   Appellant killed his cousin, Jacob Lawee, by shooting him between the eyes with a handgun.   Appellant told the police, “He was driving me crazy.   Sure, I shot him․   He broke up my marriage.”   During a struggle to wrest the gun away from appellant, the decedent's parents were also shot.

In July 1977, pursuant to a plea bargain, appellant pleaded guilty to involuntary manslaughter with dismissal of the two assault counts.   Appellant was sentenced to state prison with sentence suspended and probation granted for five years on the condition that appellant spend one year in the county jail, waiving credit for time served.   It was assumed that immigration authorities would, within a few days, take custody of appellant at the county jail for deportation to Israel, at which time the condition for jail time would be deemed served.   It was also ordered that if appellant did not permanently leave the United States or if he should return, he must present himself immediately to the court for sentencing.

 Appellant was quickly released to immigration authorities, but they did not deport him.   Appellant did not return to the court for sentencing.

Commencing in October 1978 appellant made numerous threatening phone calls, from Miami, Florida, to his former mother-in-law, Mrs. Zebberman, in California.   In abusive and obscene language, he threatened to kill her and other members of the family.   He said he would cut her throat or use guns and would bury her like a dog.   He would make sure that his friends in the Mafia got to her.   She complained to the telephone company which traced the calls, and later, with the cooperation of the FBI, tape recordings were made of two calls from appellant to her on August 6 and August 10, 1979.   Mrs. Zebberman was offended and frightened.

As a result of these conversations, appellant was indicted by a federal grand jury for transmitting threatening communications in interstate commerce in violation of title 18, section 875, United States Code.1

On August 20, 1979, the People moved for revocation of appellant's probation on grounds appellant violated probation by (1) making threatening telephone calls and (2) failing either to leave the United States or present himself for sentencing.

After a contested hearing, the court on June 12, 1980, found appellant to be in violation of probation and revoked probation.   After a diagnostic study pursuant to Penal Code section 1203.03, appellant was committed to state prison for the term prescribed by law.

Appellant contends (1) the trial court erred in failing to appoint doctors and failing to hold a hearing on whether appellant was mentally competent to stand trial on the probation violation;  (2) neither of the grounds alleged was a proper basis for revoking probation and there is no substantial evidence that appellant violated the terms of his probation;  (3) the court penalized appellant for contesting the probation violation;  and (4) the court erred in denying appellant credit for time served in custody prior to the 1977 plea bargain.

COMPETENCE TO STAND TRIAL

Appellant contends that during the probation revocation proceedings substantial evidence came to light that appellant might be mentally incompetent to stand trial, and that the court erred in failing to suspend the proceedings pursuant to Penal Code section 1368 for a hearing on appellant's competence to stand trial.2

Section 1368 has been held applicable to probation violation proceedings.  (People v. Humphrey, 45 Cal.App.3d 32, 36, 119 Cal.Rptr. 74;  People v. Hays, 54 Cal.App.3d 755, 759, 126 Cal.Rptr. 770.)   Under sections 1367 and 1368, implementing Pate v. Robinson, 383 U.S. 375, 385, 86 S.Ct. 836, 842, 15 L.Ed.2d 815, and People v. Pennington, 66 Cal.2d 508, 518, 58 Cal.Rptr. 374, 426 P.2d 942, if there is substantial evidence the accused is incapable, because of mental illness, of understanding the nature of the proceedings against him or of assisting in his defense, the court must hold a hearing to determine his present competence to stand trial.   We now consider whether there was substantial evidence in this case that appellant had a mental illness of the type which rendered him incapable of understanding the nature of the proceedings and of assisting in his defense.   There is no simple formula of what constitutes “substantial evidence” in this context.  (People v. Laudermilk, 67 Cal.2d 272, 283, 61 Cal.Rptr. 644, 431 P.2d 228.)

 The substantial evidence test is not satisfied merely by bizarre actions or statements of the defendant, statements by defense counsel that defendant is incapable of cooperating in his defense, or even psychiatric testimony that the defendant is psychopathic or schizophrenic, if that opinion is not directed specifically to the issue of defendant's ability to assist in his own defense.  (People v. Laudermilk, supra, 67 Cal.2d at p. 285, 61 Cal.Rptr. 644, 431 P.2d 228;  People v. Cox, 82 Cal.App.3d 221, 226, 147 Cal.Rptr. 73;  People v. Beivelman, 70 Cal.2d 60, 72–73, 73 Cal.Rptr. 521, 447 P.2d 913;  People v. Hays, supra, 54 Cal.App.3d 755, 760, 126 Cal.Rptr. 770;  People v. Burney, 115 Cal.App.3d 497, 503–504, 171 Cal.Rptr. 329.)

 The substantial evidence test is satisfied if a psychiatrist or qualified psychologist has testified or reported to the court that in his professional opinion the defendant is incapable of understanding the nature of the proceedings or assisting in his defense (People v. Beivelman, supra, 70 Cal.2d at p. 71, 73 Cal.Rptr. 521, 447 P.2d 913), and in the California cases cited by appellant where the court has found substantial evidence mandating a hearing, there already existed a qualified medical opinion that the defendant was incompetent in that sense.  (People v. Pennington, supra, 66 Cal.2d at pp. 512, 514, 519–520, 58 Cal.Rptr. 374, 426 P.2d 942;  People v. Melissakis, 56 Cal.App.3d 52, 60, 128 Cal.Rptr. 122;  People v. Tomas, 74 Cal.App.3d 75, 82, 91, 141 Cal.Rptr. 453;  People v. Sundberg, 124 Cal.App.3d 944, 951, 957, 177 Cal.Rptr. 734.)   There was no such evidence in the present case.

 Applying these rules to the present case, none of the factors cited by appellant, either singly or in combination (cf. People v. Humphrey, supra, 45 Cal.App.3d 32, 38, 119 Cal.Rptr. 74), constituted substantial evidence which would compel the trial court to hold a hearing on appellant's competence to stand trial.

Appellant was on probation for a homicide committed on August 2, 1976, for which he was convicted on July 26, 1977.   Appellant points out that in November 1976 he had been found incompetent to stand trial on the charges arising out of that incident.   However, he regained competence in May 1977, and thus his prior hospitalization did not tend to show that he was incompetent as of April 1980 when the instant proceedings began.

Appellant contends he engaged in bizarre conduct in the courtroom and made statements about his situation and his trial counsel, which should have placed the court on notice that he was not competent, and in fact which caused the court to express some doubt about the matter.   However, under People v. Laudermilk, supra, 67 Cal.2d at page 287, 61 Cal.Rptr. 644, 431 P.2d 228, bizarre statements and conduct by the defendant are not sufficient to require that a hearing be held.   Otherwise a defendant could compel a delay in criminal proceedings against him, merely by feigning incompetence in the courtroom.   Moreover, when the court inquired of appellant's counsel whether there was any doubt about appellant's ability to proceed, the attorney replied that there was not.  (People v. Acosta, 18 Cal.App.3d 895, 900, 96 Cal.Rptr. 234.) 3

 The fact that appellant's in-court behavior prompted the court to make an inquiry of defense counsel does not compel the court to hold a hearing.   Under section 1368, where counsel answers the court's inquiry by indicating there is no problem, the court has discretion unless there is other substantial evidence which objectively compels a hearing.  (People v. Tomas, supra, 74 Cal.App.3d at p. 90, 141 Cal.Rptr. 453.)   Counsel's statement is not a “waiver” of appellant's rights, but simply another indication of a lack of substantial evidence that appellant was incompetent.  (See People v. Acosta, supra;  People v. Cox, supra, 82 Cal.App.3d at p. 225, 147 Cal.Rptr. 73.) 4

 Appellant contends that the transcripts of his telephone calls to Mrs. Zebberman showed that he was mentally ill.   We note that these conversations were nearly a year old, and nothing in them indicated appellant was incapable of understanding the proceedings or assisting in his defense at the time of the hearing.

 After appellant had been found in violation of probation, he was committed to the Department of Corrections for a diagnostic study pursuant to Penal Code section 1203.03, and was returned to court in September 1980.   The staff psychologist reported that appellant had refused to take tests because he might incriminate himself, and believed he was the victim of a conspiracy.   In his opinion appellant was dangerous because he might act upon his delusions;  appellant had an average level of intellectual functioning.   Furthermore, at the sentencing hearing on the section 1203.03 return appellant told the court that he had been placed in the local jail hospital and given psychotropic medication.   Appellant's attorney told the court that appellant appeared sedated.5  The court stated it saw no change in appellant's demeanor.

 The psychologist's report, while indicating some mental illness, did not opine that it was the type of mental illness which rendered appellant incompetent to stand trial.  (People v. Laudermilk, supra, 67 Cal.2d at p. 285, 61 Cal.Rptr. 644, 431 P.2d 228;  People v. Schneider, 95 Cal.App.3d 671, 679, 157 Cal.Rptr. 314;  People v. Burney, supra, 115 Cal.App.3d at pp. 503–504, 171 Cal.Rptr. 329;  People v. Bryant, 264 Cal.App.2d 901, 904–905, 71 Cal.Rptr. 117.)   Similarly the alleged fact that appellant was housed in the psychiatric ward of the jail on medication did not indicate his illness was of the type rendering him incompetent to understand the nature of the proceedings and assist in his defense.

We conclude the trial court did not err in proceeding without a hearing to determine appellant's competence to stand trial or to be sentenced.

REVOCATION OF PROBATION

 Probation may be revoked if the court has reason to believe that the probationer has subsequently committed other offenses.  (Pen.Code, § 1203.2, subd. (a).)  It is a fundamental implicit condition of probation that the probationer obey all laws.  (People v. Thrash, 80 Cal.App.3d 898, 902, 146 Cal.Rptr. 32.)

Appellant nevertheless contends that there was neither a proper legal basis nor sufficient evidence to revoke probation on the ground of his threatening phone calls to Mrs. Zebberman.   With regard to the federal statute on threatening communications, appellant argues (1) that a California court has no jurisdiction to revoke probation for violation of a federal statute and (2) that the prosecution is collaterally estopped to rely upon the federal statute because the federal indictment was dismissed.   Neither was it proper, appellant argues, to conclude that the same conduct also violated California Penal Code section 653m, subdivision (a),6 because (1) that statute should not be construed to apply to an interstate phone call originated from outside of California and (2) if the statute can be so construed it is unconstitutional because Congress has preempted the field of threatening interstate phone calls.   As to both statutes appellant also suggests the evidence is insufficient to show the requisite intent.   None of these contentions has any merit.

 The dismissal of the federal indictment has no estoppel effect.   Probation may be revoked for subsequently committed offenses regardless of whether the defendant has been prosecuted for such offenses.  (Pen.Code, § 1203.2, subd. (a).)  Probation may be revoked even if the defendant has been acquitted of the other offenses, because the standard of proof in the two proceedings is different.  (In re Coughlin, 16 Cal.3d 52, 57–59, 127 Cal.Rptr. 337, 545 P.2d 249.)

 Appellant argues that the California court has no jurisdiction to determine that appellant violated a federal statute.   But appellant is not being prosecuted for violation of a federal statute as such.  (Cf. People v. Kelly, 38 Cal. 145, 150.)   Appellant was already convicted of involuntary manslaughter, and here the California court was simply exercising its supervisory power over appellant's probation.   It was within the court's power to determine that appellant was no longer a fit subject for probation by reason of his violation of federal law.  (See People v. Vanella, 265 Cal.App.2d 463, 465, 469–470, 71 Cal.Rptr. 152;  In re Roberts, 40 Cal.2d 745, 747, 255 P.2d 782;  Annot. 58 A.L.R.3d 1156, 1166–1167.)

 Appellant's threatening phone calls also violated California Penal Code section 653m, subdivision (a).   Appellant contends this section does not apply to an interstate phone call originated from outside of California.   However, the application of the statute to appellant's case is squarely supported by Penal Code section 778, which provides:  “When the commission of a public offense, commenced without the State, is consummated within its boundaries by a defendant, himself outside the State, through the intervention of an innocent or guilty agent or any other means proceeding directly from said defendant, he is liable to punishment therefor in this State in any competent court within the jurisdictional territory of which the offense is consummated.”   Appellant, from outside the state, consummated the crime within the state through the intervention of an innocent agent, the telephone company, and by means proceeding directly from appellant, his voice communication to the victim.  (See generally People v. Sansom, 37 Cal.App. 435, 437–439, 173 P. 1107;  22 C.J.S., Criminal Law, §§ 134, 135;  21 Am.Jur.2d, Criminal Law, §§ 346, 347.)

 Appellant contends section 653m cannot constitutionally apply to a phone call originated from another state because Congress has preempted the field of threatening interstate phone calls.   This argument is without merit.   Appellant cites no evidence of any such congressional intent, and it appears that the intent of Congress was just to the contrary, since the federal statute is part of title 18, United States Code, which contains a proviso in section 3231 that nothing therein is intended to take away from the jurisdiction of the courts of the several states under the laws thereof.  (In re Dixon, 41 Cal.2d 756, 764, 264 P.2d 513.)   Concurrent regulation by the states must therefore be upheld unless there is an actual conflict between the two schemes of regulation such that both cannot stand.  (People v. Conklin, 12 Cal.3d 259, 264, 266–267, 114 Cal.Rptr. 241, 522 P.2d 1049.)   The State of California can exercise its police power to protect its citizens from annoying and threatening phone calls, and we find nothing in section 653m which would be an obstacle to the accomplishment of the full objectives of Congress in enacting 18 United States Code section 875.  (People v. Conklin, supra, 12 Cal.3d at pp. 269–273, 114 Cal.Rptr. 241, 522 P.2d 1049.)

 Finally, appellant suggests that the evidence is insufficient to show that he violated either statute.   He contends his language in those conversations can be construed as “emotional invective” of a “mentally ill” person, and that he was not shown to have the intent to annoy required by section 653m or the knowing intent to make a threat required by the federal statute.  (See United States v. Bozeman (5th Cir. 1974) 495 F.2d 508, 510–511.)   However, the trial court heard Mrs. Zebberman's testimony as to the nature of the calls which occurred over a long period of time, and the court read the transcripts of the two tape recorded conversations.   There was obviously substantial evidence to support an inference of the necessary intent.  (United States v. Holder (D.Mont.1969) 302 F.Supp. 296, 300–301, affd. (9th Cir.) 427 F.2d 715.)   Whether the threats were irrational is not controlling (United States v. Bozeman, supra), especially in the context of probation revocation.  (See People v. Breaux, 101 Cal.App.3d 468, 472–474, 161 Cal.Rptr. 653.)

Since revocation of probation was amply justified by appellant's threatening phone calls which violated both federal and state law, we need not consider the parties' contentions as to whether appellant's failure to report to the court for sentencing after he was not deported also constituted a valid ground for revocation.

PENALTY FOR CONTESTING HEARING

 Appellant contends that prior to the hearing on violation of probation the court offered appellant a lenient disposition if he stipulated to a violation, and that therefore the court's subsequent decision to commit appellant to the state prison amounted to penalizing appellant for contesting the violation, within the meaning of In re Lewallen, 23 Cal.3d 274, 279, 152 Cal.Rptr. 528, 590 P.2d 383, and North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656.   This contention is without merit.   In the absence of statements by the trial court indicating that it was penalizing the defendant for exercising his rights, the fact that a more severe sentence was received than earlier offered does not itself support the inference the defendant was penalized.  (People v. Szeto, 29 Cal.3d 20, 35, 171 Cal.Rptr. 652, 623 P.2d 213;  People v. Angus, 114 Cal.App.3d 973, 989–991, 171 Cal.Rptr. 5.)

In this case the statement upon which appellant relies was made on May 18, 1980, when the court knew very little about the circumstances of the case.   The court had asked the district attorney for “the gravamen” of the charges, and then stated that there could be a short way of handling the case “if there were a stipulation as to a technical violation of probation, that we could then place him on formal probation and set up some conditions for that probation, and then send Mr. Amremi on his way with the understanding that certainly he not annoy, molest and so forth, ․”  However, by the time the court made its sentencing decision it had acquired much more information about the case, having read the transcripts of the threatening phone calls, having heard Mrs. Zebberman's testimony, and having read the diagnostic report from the Department of Corrections in which the staff psychologist concluded that appellant might act in a dangerous manner.   Family members had also written the court that they considered appellant dangerous and they feared for their lives.   There is no reasonable basis for concluding that the trial court punished appellant for contesting the hearing.

CREDIT FOR TIME SERVED

 Appellant contends the trial court erred in failing to grant appellant credit pursuant to Penal Code section 2900.5 for the 358 days appellant spent in pretrial custody prior to his guilty plea of July 26, 1977.7  This contention is without merit because as a term of his plea bargain appellant waived his right under section 2900.5 to credit for those 358 days.  (People v. Zuniga, 108 Cal.App.3d 739, 742, 166 Cal.Rptr. 549;  People v. Johnson, 82 Cal.App.3d 183, 187–188, 147 Cal.Rptr. 55.) 8

Having waived his right to credit in order to secure a favorable disposition at the time of his plea, appellant may not now disregard his waiver, when, as a result of his own further misconduct, probation is revoked and he is sentenced to state prison.  People v. Zuniga, supra, 108 Cal.App.3d at pages 742–743, 166 Cal.Rptr. 549, squarely so holds.9

 The judgment is affirmed.

FOOTNOTES

1.   18 United States Code section 875(c) provides:  “Whoever transmits in interstate commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined not more than $1,000 or imprisoned not more than five years, or both.”In February 1980 the United States District Court for the Southern District of Florida dismissed the indictment on technical pleading grounds.

2.   Penal Code section 1367 provides in pertinent part:  “A person cannot be tried or adjudged to punishment while such person is mentally incompetent.   A defendant is mentally incompetent for purposes of this chapter 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.”Penal Code section 1368 provides in pertinent part:  “If, during the pendency of an action and prior to judgment, a doubt arises in the mind of the judge as to the mental competence of the defendant, he shall state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent․  [¶]  If counsel informs the court that he believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendant's mental competence is to be determined in a hearing ․   If counsel informs the court that he believes the defendant is mentally competent, the court may nevertheless order a hearing.”

3.   After pointing out to the court that the federal charges in Florida had been dismissed, appellant complained that he was being tortured in jail because he could not wear his yarmulke.   Appellant kneeled and began crying that, “I love you.”   The court asked, “[M]ust I appoint a doctor to examine you?” and appellant said, “My God is the greatest doctor.”   The court said, “I am having great doubt about whether or not you can go forward with this without me having a doctor examine you,” and appellant said, “I don't need no doctor, Your Honor.”   At the next hearing three weeks later, appellant wanted to relieve his appointed counsel.   The court asked counsel, “Is there some doubt expressed as to his ability to proceed?” and counsel replied, “Not by me.”   At this and the next hearing three weeks later, appellant interrupted the proceedings and had to be warned to be quiet.   He also made “childish gestures.”

4.   Appellant contends that because his trial counsel did not request a section 1368 hearing appellant was deprived of the effective assistance of counsel, citing People v. Bolden, 99 Cal.App.3d 375, 379–380, 160 Cal.Rptr. 268, and People v. Corona, 80 Cal.App.3d 684, 709, 145 Cal.Rptr. 894.   However, whether counsel had good reason to believe that appellant was capable of understanding the nature of the proceedings and cooperating with his defense is within the knowledge of trial counsel but is not shown in the record on appeal.   The claim of ineffective assistance of counsel therefore must be rejected on appeal as unsupported by the record.  (People v. Pope, 23 Cal.3d 412, 426, 152 Cal.Rptr. 732, 590 P.2d 859;  see People v. Acosta, supra, 18 Cal.App.3d at p. 906, 96 Cal.Rptr. 234;  People v. Corona, supra, 80 Cal.App.3d at p. 703, fn. 9, 145 Cal.Rptr. 894.)

5.   This comment did not occur until after appellant had been sentenced.   It came at a subsequent hearing on appellant's entitlement to good-time credits for time spent in custody.

6.   That statute provides:  “Every person who with intent to annoy telephones another and addresses to or about such other person any obscene language or addresses to such other person any threat to inflict injury to the person or property of the person addressed or any member of his family, is guilty of a misdemeanor.”

7.   Appellant was granted credit for his time in custody since arrest in Florida for the threatening phone calls.

8.   Charged with murder and two counts of assault with a deadly weapon, appellant pleaded guilty to involuntary manslaughter, and the two assault counts were dismissed.   Appellant was advised and understood he was pleading guilty to a felony with a maximum sentence of one to fifteen years in the state prison, and that “if the Court places you on probation and you violate the terms of probation, you may be called back into court, and after a suitable hearing, probation may then be revoked and you may then [be] sentenced to the maximum term prescribed by law;  ․”   Appellant was sentenced to state prison for the term prescribed by law, with sentence suspended, and was placed on five years' probation on the condition that he spend one year in the county jail, the sheriff to release appellant to immigration authorities for deportation, upon which the county jail time would be deemed served.   The court noted that appellant had been in pretrial custody for 358 days, and appellant agreed as part of the plea bargain to waive his right to credits for those 358 days pursuant to Penal Code section 2900.5.

9.   The Supreme Court denied a hearing in Zuniga.

 ASHBY, Associate Justice.

STEPHENS, Acting P. J., and HASTINGS, J., concur.