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People v. Marquez

California Court of Appeals, Fifth District

May 16, 2017

THE PEOPLE, Plaintiff and Respondent,
v.
VICTOR ALEXANDER MARQUEZ, Defendant and Appellant.

         CERTIFIED FOR PARTIAL PUBLICATION [*]

         APPEAL from a judgment of the Superior Court of Tulare County No. VCF222534, Gary L. Paden, Judge.

          Jerome P. Wallingford, under appointment by the Court of Appeal, for Defendant and Appellant.

          Kamala D. Harris, Attorney General, Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein, Peter H. Smith, and Stephanie A. Mitchell, Deputy Attorneys General, for Plaintiff and Respondent.

          OPINION

          PEÑA, J.

         INTRODUCTION

         Defendant Victor Alexander Marquez was just four months shy of his 18th birthday when he brutally murdered Maria Juarez by stabbing and slashing her 19 times during an attempted robbery. Judge Gerald F. Sevier presided over defendant's trial and sentenced him to life without the possibility of parole (LWOP) for special circumstance murder. While defendant's original appeal was pending, the United States Supreme Court decided Miller v. Alabama (2012) 567 U.S. 460 (Miller). Miller held that mandatory LWOP sentences for juvenile homicide offenders violated the federal Constitution's Eighth Amendment prohibition against cruel and unusual punishment. In defendant's first appeal, we recognized California does not provide for mandatory LWOP sentences for minors convicted of murder, and the sentencing court understood this aspect of its statutory sentencing discretion. Nevertheless, we reversed the judgment and remanded the matter to the trial court to reconsider defendant's LWOP sentence after applying the individualized sentencing criteria set forth in Miller. (People v. Marquez (June 25, 2013, F063837) [nonpub. opn.].)

         Judge Gary L. Paden conducted the resentencing hearing. After considering the Miller criteria, Judge Paden again imposed an LWOP sentence. Defendant contends the trial court misapplied the Miller criteria and argues his sentence constitutes cruel and unusual punishment under the Eighth Amendment. In supplemental briefing, defendant contends Proposition 57, the Public Safety and Rehabilitation Act of 2016 (Proposition 57) passed by the voters on November 8, 2016, applies retroactively to his case. Defendant argues the initiative ended the practice employed here of allowing the prosecutor to directly file a case involving a juvenile offender in adult criminal court rather than first conducting a suitability hearing as now required by the amended provisions of the Welfare and Institutions Code. As we explain in the unpublished portion of this opinion, the trial court properly evaluated the Miller criteria. In the published portion, we conclude the suitability hearing provisions of Proposition 57 are not retroactive.

         FACTS AND PROCEEDINGS[*]

         Trial and First Sentencing Hearing[1]

         On September 9, 2009, three months after Maria Juarez was murdered, defendant was charged in an information as an adult in criminal court pursuant to Welfare and Institutions Code former section 707, subdivision (d)(1), with first degree murder (Pen. Code, § 187, subd. (a)) committed during the commission of a robbery (id., § 190.2, subd. (a)(17)), a special circumstance. The information alleged defendant personally used a deadly weapon in the commission of his offense (id., § 12022, subd. (b)(1)). This information was filed five weeks prior to defendant's 18th birthday.

         On May 5, 2010, the trial court suspended proceedings pursuant to Penal Code section 1368 to determine defendant's competency to stand trial. On June 7, 2011, a jury found defendant competent to stand trial, and the trial court reinstated criminal proceedings.

         On September 14, 2011, a jury was impaneled. On September 20, 2011, the jury found defendant guilty as charged. In the first appeal this court noted: “There is no doubt [defendant] committed the murder. He confessed to the crime, his DNA was found at the scene as the result of a wound he suffered during the murder, and Juarez's and [defendant]'s DNA was found on the murder weapon that was hidden in his bedroom.” (People v. Marquez, supra, F063837.)

         Defendant then withdrew his previous plea of not guilty by reason of insanity. On October 19, 2011, the trial court imposed a prison sentence of LWOP.

         In the first appeal we held “[b]ecause Miller had not yet been decided, the trial court sentenced [defendant] without fully considering the implications of the Eighth Amendment. Undoubtedly, the trial court considered some of the Miller factors. It is clear, however, other factors were not considered or were found to have little weight in the sentencing decision, even though Miller suggests otherwise. For these reasons, we feel compelled to reverse the judgment and remand the matter for resentencing to satisfy the constitutional concerns raised by Miller.” (People v. Marquez, supra, F063837.)

         We further advised the trial court: “On remand, the trial court must give thorough consideration to the Miller factors, many of which readily appear in this record.” (People v. Marquez, supra, F063837.) These included: (1) the “virtual unanimous conclusion of the five mental health professionals” that defendant suffered borderline intellectual functioning, substance abuse, and psychiatric disorders, including posttraumatic stress disorder, and schizoaffective disorder bipolar type, (2) a long history of psychiatric treatment and prescribed medication, (3) physical and emotional abuse detailed in psychiatric evaluations, (4) the motive for the crimes, (5) strong evidence of the “‘incompetencies associated with youth'” that appear in the record, including (a) defendant refusing to request the assistance of counsel, (b) defendant providing the only evidence that allowed the jury to find the special circumstance of robbery to be true, (c) defendant confronting and refusing to assist his attorney, thereby hampering his defense, and (d) defendant refusing to attend most of the trial despite the encouragement of the trial court and counsel to do so, and (6) the possibility of rehabilitation, including defendant's remorse, if any, and potential for growth and change. (People v. Marquez, supra, F063837.)

         Probation Officer's Report from 2014

         Defendant was 22 years old when a new probation report was prepared. Defendant admitted to the probation officer he was present when Juarez was murdered, but others were present as well. Defendant declined to say whether he personally stabbed Juarez. Defendant expressed to the probation officer some insight into the consequences of his actions, admitting he “‘had it good'” before the crime and subsequent incarceration. Defendant realized he lost the opportunity to go to college and have a family life because of the decisions he made. In 2009, defendant had told officers he confronted Juarez because she had disrespected him a few weeks earlier. Although defendant regretted the crime, he did not directly admit his own culpability.

         Defendant had three juvenile delinquency adjudications. In 2006, when defendant was 14 years old, he had a seven-year-old girl staying within the family home orally copulate him (Pen. Code, § 288a, subd. (b)(1)). In 2008, defendant exposed his erect penis to a female staff member of a group home (id., § 314, subd. 1). Also in 2008, defendant was adjudicated for committing battery on a female staff member of a group home (id., § 242). Defendant was on probation for these offenses when he murdered Maria Juarez.

         On January 31, 2014, defendant and five other inmates allegedly attacked another inmate in county jail. Defendant claimed the victim had raped his cousin. The jail victim required two staples to close the wound on his head. Defendant was charged with felony assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)), felony battery with serious bodily injury (id., § 243, subd. (d)), and personal infliction of great bodily injury (id., § 12022.7, subd. (a)). On March 29, 2014, defendant and another inmate attacked a third inmate without provocation. Defendant inflicted minor facial injuries and was charged with misdemeanor battery (id., § 242). A confidential informant reported defendant was a bully who had stolen canteen items from the victim during a fight a few months earlier.

         The probation officer's report also included a discussion of defendant's dysfunctional and abusive home environment. Defendant never knew his father. Defendant and his siblings raised themselves. Defendant's stepfather molested him and his older half sisters. Defendant described his home environment as angry, abusive, and full of drugs and gangs. Juvenile probation reports, however, document that as a minor, defendant received counseling to address his mental health, sexual abuse, and anger management issues. Defendant reported he was diagnosed with paranoid schizophrenia, bipolar disorder, and attention deficit hyperactivity disorder when he was very young. Defendant was taking psychotropic medication until one month before murdering Juarez. Defendant told the probation officer he stopped taking his medications against the advice of medical staff two and one-half years ago.

         When defendant was first interviewed by probation in 2011, he chose not to comment about his involvement in this offense. However, defendant asked the court for leniency based on the fact he was only 17 years old when the crime was committed and he had matured since then. When interviewed on July 1, 2014, defendant expressed remorse for his decisions, said he was not the only person present during the homicide, and declined to admit he personally stabbed the victim. Defendant said at age 17, he could not fully appreciate the ramifications and consequences of his actions.

         In expressly evaluating the Miller criteria and applying them to defendant's case, the probation officer noted defendant had little support from his mother, who lacked basic parenting skills. Defendant's mother was involved with drugs and dysfunctional relationships. Defendant quit school in the tenth grade. Defendant's juvenile adjudications began with a sex offense perpetrated on a girl only seven years old. Defendant had other juvenile adjudications and a history of fights while detained as a juvenile. The probation officer noted the abuse defendant suffered as a child, but observed defendant still had not expressed remorse or accepted personal responsibility for killing Juarez.

         The probation officer asked whether defendant “is that rare juvenile described by the Miller court whose crime and background reflects his or her irreparable corruption.” The probation officer concluded defendant's crimes as a juvenile, including the instant offense, involved a clear pattern of violence against women; his institutional conduct as a juvenile prior to his conviction also reflected a pattern of violence and open disobedience of authority figures. Furthermore, defendant was on juvenile probation when he committed the instant offense. Defendant received counseling to address his mental health and sexual deviance issues. Despite rehabilitative efforts, defendant continued his pattern of assaultive behavior and murdered Juarez. The probation officer concluded defendant was not amenable to rehabilitative services offered to him as a juvenile and met the threshold of a juvenile who could be given an LWOP sentence under Miller.

         Expert Testimony Concerning Defendant's Mental State

         Physicians and clinical psychologists testified at defendant's competency trial in February 2011. A psychiatrist and clinical psychologist testified at defendant's trial. Judge Paden read the transcripts of these proceedings in preparation for defendant's resentencing hearing. We summarize this testimony as follows.

         Dr. Michael Barnett, a psychiatrist, treated defendant in 1997 and 1998. Defendant was taking Ritalin, but Dr. Barnett thought he needed a higher dosage. Dr. Barnett did not initially observe defendant having psychotic or suicidal ideation, but did find him talkative, hyperactive, and noisy. Two months after first seeing defendant, Dr. Barnett prescribed the mood stabilizer Depakote to control defendant's impulsive and aggressive behavior. Defendant was acting wild and had angry outbursts. Defendant was hitting his head and pulling out his hair, which could be signs of suicidal ideation. Dr. Barnett added Imipramine as a medication for defendant's attention deficit disorder and increased his dosage of Ritalin.

         Between January 1998 and April 1998, defendant was fighting, manipulating his parents, and had fears about going to school. Dr. Barnett prescribed Mellaril to decrease defendant's hyperactivity and aggressive behavior. Defendant was taken to the emergency room because he was hurting himself. He was also running into the street when cars were coming. Defendant was urinating and defecating in his pants. Defendant reported psychotic symptoms, including hearing voices. Dr. Barnett began a course of the antipsychotic medication Stelazine and increased the dosage.

         By June 1998, however, Dr. Bartlett was concerned defendant could be having a severe anxiety problem rather than psychosis. Dr. Bartlett was also concerned defendant's mother was doing something to provoke the psychotic symptoms. Dr. Barnett thought something may have been happening to cause defendant to regress. In August 1998, Dr. Bartlett prescribed defendant Seroquel, another antipsychotic. In November 1998, defendant again presented psychotic symptoms, such as hearing voices, and he pulled a knife on his sister. Dr. Barnett prescribed Zyprexa for defendant. In December 1998, Dr. Barnett found defendant was sleeping better and was going to school two hours a day; he denied any psychotic symptoms. Dr. Barnett explained people with psychosis can require medication their entire lives; without treatment, their symptoms could recur.

         Dr. Ari Kalechstein, a licensed psychologist with specialized training in neuropsychology and forensic psychology, testified as a defense expert. Dr. Kalechstein met defendant twice and administered multiple tests to evaluate his competency to stand trial. Dr. Kalechstein found defendant's overall IQ was 70, which was in the intellectually impaired range, and his verbal skills were 74, in the borderline impaired range. Defendant had the English language skills of a fourth grader. Dr. Kalechstein found impairment in defendant's ability to understand and appreciate his circumstances as related to his case. Defendant tested in the low range for ability to remember verbally presented material and the low average range for long-term memory.

         Dr. Kalechstein disagreed with another doctor who had found defendant was malingering. Dr. Kalechstein found defendant had a history of mental illness predating the case. Dr. Kalechstein thought defendant suffered one or two traumatic brain injuries as a little boy. Dr. Kalechstein concluded defendant was developmentally disabled and unable to retain information in a mainstream learning environment. Dr. Kalechstein did not believe use of drugs and alcohol contributed to defendant's developmental disability or his low IQ.

         Forensic and clinical psychologist Dr. Richard Kendall was appointed by the court to evaluate defendant's competency to stand trial. During his entire evaluation of defendant, Dr. Kendall did not detect any evidence of disorganized thinking or gross cognitive impairments. Dr. Kendall observed no delusions or hallucinations by defendant. Defendant did not present himself as someone with a bona fide serious psychotic illness. Dr. Kendall believed defendant was malingering and did not believe defendant's description of visual hallucinations was sincere. Furthermore, defendant had a history of substance abuse, including use of alcohol, marijuana, methamphetamine, cocaine, and Ecstasy. According to Dr. Kendall, it was not uncommon for individuals using these drugs to have brief periods where they experience auditory and visual hallucinations.

         Dr. Kendall reviewed Dr. Kalechstein's report and noted that even with a low IQ, defendant was not necessarily incompetent to stand trial. Defendant was twice admitted to hospitals, once in 2001 and again in 2003, for mental health commitments. Dr. Kendall agreed defendant had a significant history of being treated for mental illness but still concluded defendant was “attempting to malinger psychiatric impairment” because he displayed no psychiatric impairment during his evaluation.

         Dr. Richard Berkson, a staff psychiatrist at Corcoran State Prison, was also appointed to evaluate defendant's competency to stand trial and testified not at the sanity hearing but at defendant's trial. Dr. Berkson evaluated defendant in April 2011, when he was 19 years old. Dr. Berkson acknowledged defendant had volunteered he was severely abused as a child and had a history of psychiatric treatment that included hospitalization.

         During his evaluation of defendant, Dr. Berkson asked him if it would be more advantageous for defendant to be found competent or incompetent. Rather than answer the question, defendant walked out of the evaluation. Although Dr. Berkson did not complete a full history and mental status examination, he evaluated defendant for 45 minutes and believed he had enough information to form an opinion of defendant's competency to stand trial. Dr. Berkson found defendant to be of average intelligence and able to respond appropriately to his questions. Defendant understood the nature of the proceedings against him, the consequences of a guilty verdict, and the roles of participants in criminal proceedings. Defendant had the ability to cooperate with his counsel in a rational manner. Dr. Berkson concluded defendant was competent to stand trial.

         Dr. Berkson found defendant's description of auditory hallucinations credible, but not his description of visual hallucinations. Defendant's description of a sudden onset and then a cessation of hallucinations is not what happens to patients clinically. Dr. Berkson believed defendant was exaggerating his hallucinations to the point of being dishonest.

         Defendant told Dr. Berkson he was not responsible for the crime because he could not remember anything. Although defendant did not know if he committed murder, if he had done so, it was because his doctor had taken him off his medications. Defendant also blamed his actions on his mental health disorder, his lack of medications, and his molestation as a child. Defendant repeatedly wanted to talk about the crime. It appeared to Dr. Berkson that defendant wanted to present himself as not guilty by reason of insanity. Dr. Berkson could find no evidence defendant suffered from a psychosis.

         Dr. Berkson observed signs of a borderline personality disorder with antisocial features. Dr. Berkson thought defendant had some delusional thinking. Dr. Berkson found defendant had extremely limited insight and blamed others for his illness or his own actions. Dr. Berkson found this history consistent with posttraumatic stress disorder, which explained defendant's emotional numbing, nightmares, disturbed sleep, and hyperactivity. Dr. Berkson found no clear evidence defendant was developmentally disabled. During the evaluation process, Dr. Berkson found defendant's thought process to be logical and coherent.

         Dr. Yoseph Geshuri, a clinical psychologist, testified for the defense. Dr. Geshuri was asked to assume a person had experienced physical or emotional abuse and had developed anxiety or suicidal thoughts. Dr. Geshuri explained it would not be inconsistent for a person like that who also abused drugs and alcohol to experience a blackout in a stressful situation. Defendant's description of the murder was the type of stressful situation that might cause a blackout.

         Resentencing Hearing

         At the beginning of the resentencing hearing on October 22, 2014, defendant told Judge Paden he had asked his attorney not to present any further evidence because “you really can't defend undefendible [sic], … you can't justif[y] unjustifiable.” Defendant apologized for “everything” he had done. Defendant said he knew he hurt the family but had been intent on holding onto his anger to protect himself. Defendant explained to the court he intended to waive his right to appeal, accept responsibility for his actions, and “accept the sentence as handed down as justifiable.” Defendant said he was “at peace” with his decision, and Juarez's “family need[ed] justice.” Defense counsel stated he would “respect my client's wishes, and I'm going to submit.”

         Prior to imposing its sentence, the court discussed the factors that informed its decision to resentence defendant to LWOP, noting a “huge, huge factor” in its sentencing decision was defendant's prospect for rehabilitation. The court observed that since defendant had been returned to county jail, he had three new assault cases at the jail, one felony and two misdemeanors. The court found defendant was continuing a pattern of violent, aggressive behavior, and it appeared defendant failed to show rehabilitation, which was a major factor to the court. The court also discussed the testimony of the mental health experts who testified at defendant's competency trial and at trial. The court recognized there was no question defendant “grew up in a … troubled and very difficult childhood.” The court cited Dr. Barnett's testimony as providing evidence defendant had taken antipsychotic medications while growing up, and defendant had “anger issues, antisocial behavior from a very early age.”

         The court found Dr. Kalechstein's opinion helpful because it provided evidence defendant had some impairments regarding intellectual capacity, which reduced his reasoning and understanding. Dr. Kalechstein also testified defendant had a serious mental illness and was developmentally disabled with a borderline impaired IQ. Dr. Kalechstein, however, disagreed with other doctors who testified defendant was malingering.

         The court found Dr. Kendall's testimony informative based on defendant's description of his involvement in the crime. Defendant told Dr. Kendall he did not commit the crime, he was innocent, somebody else did it, and defendant tried to stop the crime. The court also noted Dr. Kendall testified defendant ...


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