THE PEOPLE v. MIKE DU TRIEU (2011)

Mike Du Trieu appeals from the judgment entered following his conviction by jury on one count of attempted murder.  (Pen.Code, §§ 664/187, subd. (a).) ¹  In addition to his appeal, appellant filed a petition for writ of habeas corpus in this court.   We affirm the judgment and deny the habeas petition.

Dr. Mohamad Latif was a cardiologist with a medical practice in Glendale, California.   Dr. Latif began treating appellant for hardening in his aortic valve around 1996, and he continued to see appellant in his office every three to four months after that.   Appellant regularly obtained lab reports on his blood and brought those reports to his appointments with Dr. Latif.

On November 14, 2006, appellant came for a regularly-scheduled appointment with Dr. Latif and was brought into an examination room.   When Dr. Latif entered the room, appellant was lying on the bed.   Appellant asked Dr. Latif to look at the lab report, so Dr. Latif turned to examine the report.   Dr. Latif's back was toward appellant while he examined the report.

Dr. Latif felt pain in his right shoulder, so he turned around and saw appellant attacking him with a knife.   Dr. Latif stepped backwards and tripped over a treadmill machine.   Appellant continued stabbing Dr. Latif in the left shoulder, lip, and under the left eye.   Dr. Latif knocked the knife to the floor, and other employees in the office came and restrained appellant.   Appellant pointed to the knife and said, “That is my knife.”   The entire incident lasted about one-and-a-half to two minutes.

Appellant accused Dr. Latif of killing appellant's mother, but Dr. Latif's office was unable to verify that appellant's mother had ever been a patient.   Appellant had never spoken to Dr. Latif about his mother before.   Dr. Latif was still suffering from some paralysis in both hands at the time of trial, despite having undergone surgery and physical therapy.

Appellant was charged by information with one count of attempted willful, deliberate, premeditated murder. (§§ 664/187, subd. (a).)  It was further alleged that the victim was over 60 years of age and appellant inflicted great bodily injury on a person over 60 years of age (§ 1203.09, subds.(a), (f)), appellant personally used a deadly and dangerous weapon (§ 12022, subd. (b)(1)), and he inflicted great bodily injury, causing Dr. Latif to become comatose and suffer paralysis (§ 12022.7, subd. (b)).

During pretrial proceedings, two different defense attorneys raised doubts as to appellant's mental competence to stand trial pursuant to section 1368.   Each time a doubt was declared, the court suspended the proceedings and appointed a medical professional to examine appellant pursuant to Evidence Code section 730.   Appellant was examined by three different medical professionals, and after considering the reports, the court found appellant mentally competent to stand trial.

A Marsden hearing was held on June 28, 2007.  (People v. Marsden (1970) 2 Cal.3d 118.)   Appellant complained that he did not trust his attorney and that his attorney did not obtain some documents for him.   The court denied the motion.

The court subsequently granted appellant's request to represent himself (Faretta v. California (1975) 422 U.S. 806 (Faretta )), although appellant changed his mind several times afterward, repeatedly asking for appointed counsel and then asking to represent himself again.   Appellant retained private counsel before trial.

One of the issues appellant repeatedly raised throughout his Faretta requests was his belief that his attorneys were not obtaining evidence he needed or pursuing lab tests he wanted done.   The transcripts indicate that the People provided the requested discovery, including documents that were recovered from appellant, appellant's statements, tapes of witness statements, police reports, psychologist reports, paramedic reports, and photographs of the crime scene.

The record also indicates that the court granted appellant's requests to appoint an investigator, a confessions expert, and an expert in neurology, and authorized funds for the experts.   Appellant requested more funds for the neurology expert at a March 2, 2009 hearing, but the court told appellant it could not authorize more funds for the expert until it received a report indicating what had already been done.   After appellant's investigator asked to be relieved because appellant accused her of stealing documents from him, the court agreed to appoint a new investigator.

Appellant entered a plea of not guilty by reason of insanity.   A jury trial was held, at which Dr. Latif was the only witness.   The jury found appellant guilty of attempted murder and found true the allegations that it was deliberate, willful, and premeditated, and that appellant used a deadly weapon and caused great bodily injury, but found not true the allegation regarding the victim's age.

A jury trial was conducted to determine appellant's sanity at the time of the offense.   Before the trial started, the court conducted a hearing to address appellant's Faretta motion.   Appellant claimed that he told his attorney the reason he attacked Dr. Latif was that the medication prescribed by Dr. Latif had hurt him.   He told the court that he did not intend to kill Dr. Latif and that he could have done so had he wanted to.   The court denied the motion as untimely, stating that there was a jury “waiting outside.”   The court also denied the motion based on its observations of appellant during the trial, its belief that defense counsel had done a good job, and its belief that appellant's statements about his motive for the crime would not help his case.

Jeffrey Liu testified on appellant's behalf.   Liu met appellant while they were both in jail.   Liu was born in Taiwan and was familiar with a Chinese philosophy that it is a duty and a moral imperative for a son to avenge wrongdoing to a parent.   Liu testified that appellant was born in China and had repeatedly told Liu and other inmates that he believed Dr. Latif killed his mother, so he was required to avenge her death.   Liu tried to persuade appellant that he was not required to hold to that belief, but appellant was very “stubborn.”   Liu further testified that appellant had been a soldier in China and, according to a psychological evaluation, suffered from post traumatic stress disorder.   According to Liu, just before committing the offense, appellant had learned from a pharmacist that the medications prescribed for him by Dr. Latif could interact in a fatal manner.

The jury found that appellant was sane at the time of the offense.   The court denied appellant's motion for a new trial.   The court sentenced appellant to a term of life with the possibility of parole, plus five years for the great bodily injury allegation (§ 12022.7, subd. (b)), and imposed and stayed a one-year term for the weapon allegation (§ 12022, subd. (b)(1)).   Appellant filed a timely notice of appeal.

After review of the record, appellant's court-appointed counsel filed an opening brief asking this court to review the record independently pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.

On April 26, 2011, we advised appellant that he had 30 days within which to submit any contentions or issues that he wished us to consider.   On June 23, 2011, appellant filed a supplemental brief, raising four issues:  (1) violation of his right to cross-examine witnesses pursuant to Crawford v. Washington (2004) 541 U.S. 36 (Crawford );  (2) failure to fund expert witnesses;  (3) violations of Brady v. Maryland (1963) 373 U.S. 83 (Brady );  (4) violations of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda ).   On June 28, 2011, appellant filed a first amended supplemental brief, raising three additional issues:  (1) lack of mental competence to stand trial;  (2) sufficiency of the evidence to support the jury's sanity finding;  (3) violation of his right under Faretta to represent himself during the sanity phase of the trial.   On July 11, 2011, appellant filed a petition for writ of habeas corpus, raising the same four claims raised in his initial supplemental brief on appeal.   We address his claims seriatim.

“ ‘Crawford ․ held that testimonial out-of-court statements offered against a criminal defendant are rendered inadmissible by the confrontation clause unless the witness is unavailable at trial and the defendant has a prior opportunity for cross-examination.  [Citation.]’ ”  (People v. D'Arcy (2010) 48 Cal.4th 257, 290.)   Appellant's right to cross-examine witnesses under Crawford was not violated because his attorney cross-examined Dr. Latif.

Appellant contends that the failure to fund experts violated his right to present a defense.   The trial court record and the superior court order regarding the appointment of defense experts, attached to appellant's supplemental brief, indicate that the court appointed and authorized funds for experts and investigators as requested by appellant.

“ ‘[T]he term “Brady violation” is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence – that is, to any suppression of so-called “Brady material” – although, strictly speaking, there is never a real “Brady violation” unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict.”  (People v. Salazar (2005) 35 Cal.4th 1031, 1042–1043.)   The record indicates that appellant received all the requested discovery.   He has failed to meet his burden to “ ‘show a “reasonable probability of a different result,” ’ ” had any further evidence been disclosed.  (Id. at p. 1043.)

“Pursuant to Miranda, supra, 384 U.S. 436, ‘a suspect [may] not be subjected to custodial interrogation unless he or she knowingly and intelligently has waived the right to remain silent, to the presence of an attorney, and, if indigent, to appointed counsel.’  [Citations.]” ²  (People v. Dykes (2009) 46 Cal.4th 731, 751.)   We reject appellant's Miranda claim on two grounds:  (1) no statements to the police by appellant were admitted;  (2) no objection was made in the trial court to any statements, and, “unless a defendant asserts in the trial court a specific ground for suppression of his or her statements to police under Miranda, that ground is forfeited on appeal.”  (People v. Polk (2010) 190 Cal.App.4th 1183, 1194.)

“The criminal trial of a mentally incompetent person violates due process.   [Citation.]  However, a defendant is not incompetent if he can understand the nature of the legal proceedings and assist counsel in conducting a defense in a rational manner.  [Citations.]”  (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1047.)  “ ‘A defendant is presumed competent unless the contrary is proven by a preponderance of the evidence.’  [Citation.]”  (People v. Turner (2004) 34 Cal.4th 406, 425.)  “On appeal, the reviewing court determines whether substantial evidence, viewed in the light most favorable to the verdict, supports the trial court's finding.”  (People v. Lawley (2002) 27 Cal.4th 102, 131.)   The record indicates that the trial court twice suspended the proceedings, ordered evaluations of appellant's mental competence by three medical professionals, and subsequently found him competent based on the medical evaluations.   The trial court's finding is supported by substantial evidence.

The defendant's claim of legal insanity presents a factual issue to be decided by the trier of fact.  (People v. Kelly (1973) 10 Cal.3d 565, 574.)   The jury found appellant sane at the time of the offense.   Appellant has failed to meet his burden of establishing by a preponderance of the evidence that he was insane at the time of the offense.  (People v. Hernandez (2000) 22 Cal.4th 512, 521.)

“Faretta holds that the Sixth Amendment grants an accused personally the right to present a defense and thus to represent himself upon a timely and unequivocal request.  [Citation.]  ․ [¶] [T]he timeliness of one's assertion of Faretta rights is critical.”  (People v. Halvorsen (2007) 42 Cal.4th 379, 433.)  “ ‘When a motion for self-representation is not made in a timely fashion prior to trial, self-representation no longer is a matter of right but is subject to the trial court's discretion.’  [Citation.]”  (People v. Percelle (2005) 126 Cal.App.4th 164, 175.)   Factors for the court to consider in assessing an untimely Faretta request include “ ‘the quality of counsel's representation of the defendant, the defendant's prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion.’ ”  (Ibid.) In considering appellant's Faretta request, the trial court considered the quality of defense counsel's representation of appellant, the reasons for the request, and the stage of the proceedings.   We find no abuse of discretion.

We have examined the entire record and are satisfied that no arguable issues exist, and that appellant has, by virtue of counsel's compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case.   (Smith v. Robbins (2000) 528 U.S. 259, 278;  People v. Kelly (2006) 40 Cal.4th 106, 112–113.)

DISPOSITION

The judgment is affirmed, and the habeas petition is denied.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Further statutory references are to the Penal Code unless otherwise specified..  FN1. Further statutory references are to the Penal Code unless otherwise specified.

FN2. Appellant lists Miranda as a claim in his brief on appeal but does not argue it in his brief.   Generally, “issues and arguments not addressed in the briefs on appeal are deemed forfeited.  [Citations.]”  (Jones v. Jacobson (2011) 195 Cal.App.4th 1, 19, fn. 12.)   We address the issue because he raises it in his habeas petition..  FN2. Appellant lists Miranda as a claim in his brief on appeal but does not argue it in his brief.   Generally, “issues and arguments not addressed in the briefs on appeal are deemed forfeited.  [Citations.]”  (Jones v. Jacobson (2011) 195 Cal.App.4th 1, 19, fn. 12.)   We address the issue because he raises it in his habeas petition.

WILLHITE, J.

EPSTEIN, P. J. MANELLA, J.