The opinion
Filed 1/25/24 P. v. Robinson CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F084462
Plaintiff and Respondent,
(Super. Ct. No. CRF62544)
v.
GARETH WARREN ROBINSON, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Tuolumne County. Kevin M.
Seibert, Judge.
Jason Szydlik, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Ivan P. Marrs and Edrina
Anderson, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Detjen, Acting P. J., Peña, J., Snauffer, J.
Appellant and defendant Gareth Warren Robinson was convicted at a jury trial of
committing a lewd act on a 14-year-old child. On appeal, defendant claims his defense
counsel was incompetent for failing to present testimony from the defendant’s
psychiatrist regarding his mental health diagnosis. We affirm the judgment.
FACTUAL BACKGROUND
Prosecution Evidence
On March 30, 2018, defendant picked up his niece, the confidential victim
(hereafter “C.V.”), from her father’s home in the afternoon. C.V. was 14 years old at the
time, and she considered defendant to be one of her best friends. Defendant and C.V.
would often get food and go to the mall together. Defendant’s girlfriend was in the car
with defendant and C.V. at one point in the afternoon. However, defendant dropped his
girlfriend off at her home after they had an argument and broke up. Defendant and C.V.
went to the home of C.V.’s mother and they stayed to talk with her mother for a while.
Defendant decided to take C.V. to get fast food, and they drove around looking for
a party after they finished eating. Defendant was unable to find the party after driving
around the town, and he pulled the vehicle over on the side of the road to urinate. Once
defendant returned to the vehicle, he moved his left hand over to the passenger side of the
vehicle and grabbed C.V.’s left breast over her shirt. C.V. told defendant to stop and
moved her body away from him. Defendant apologized to C.V., and then he tried to kiss
her. C.V. pulled away from defendant, and she told him to take her home. Defendant
repeatedly stated, “sorry” on the short drive back to the home of C.V.’s father.
Upon C.V.’s return to her father’s house around 1:00 a.m., she ran into her
brother’s room and told him what defendant did. C.V’s brother told her to report the
incident to her mother and the police. C.V.’s mother initially yelled at her because she
was calling late, and her mother expected her to be home by 9:00 p.m. on school nights.
C.V. was crying on the phone, and her voice sounded frantic and scared. C.V. told her
mother about what happened with defendant.
2.
C.V.’s mother then called defendant, and she confronted him with C.V.’s
disclosure. Defendant responded that he did not know what happened, and he kept
repeating, “I don’t know what I was doing.” Law enforcement arrived at the home, and
C.V. explained to law enforcement how defendant touched her. C.V. was crying during
most of her interview with law enforcement, and she was described as “distraught.”
PROCEDURAL BACKGROUND
On February 25, 2020, a complaint was filed in the Superior Court of Tuolumne
County charging defendant with one count of committing a lewd act on a
14-year-old child. (Pen. Code, § 288, subd. (c)(1).)1 On March 14, 2022, the prosecution
moved in limine to prohibit the introduction of evidence or opinion that defendant
suffered from any mental illness at the time of the incident unless that witness had been
duly qualified by the court to render such an opinion. The court granted the motion
without any objection by defense counsel.
On March 15, 2022, the jury found defendant guilty. The trial court suspended
imposition of the sentence and placed defendant on probation for two years. Defendant
was ordered to serve six months in jail as a condition of his probation. A timely notice of
appeal was filed by defendant on June 9, 2022.
DISCUSSION
Defendant contends that his trial counsel was ineffective because he failed to
introduce testimony from defendant’s psychiatrist about defendant’s mental health issues.
The People argue that defense counsel’s performance did not fall below an objective
standard of reasonableness, and they also assert that defendant was not prejudiced by the
alleged deficiency.
1 All further statutory references are to the Penal Code.
3.
A. Factual Background
1. Sheriff’s Report
Deputy Skyler Waid with the Tuolumne County Sheriff’s Department prepared a
report summarizing the investigation of the incident on March 31, 2018. After Waid took
C.V.’s statement, he spoke with C.V.’s mother. C.V.’s mother indicated that defendant
had a “history of mental health issues, and he was diagnosed with schizophrenia when he
was in his late teens.” Defendant’s mother, J.R., called C.V.’s mother in the presence of
Waid, and the call was placed on speaker phone for Waid to speak to J.R. J.R. explained
that defendant was having a “ ‘psychotic break,’ ” and she repeatedly made statements
like “ ‘[defendant]’s not in his right mind, right now.’ ” J.R. also said that defendant was
suffering from mental illness and not taking his medication. According to J.R., defendant
told her that “he looked over at C.V. a few times and saw his girlfriend.” Waid opined in
the report that, “[i]t seemed like [J.R.] was trying to make excuses for [defendant].”
2. Preliminary Hearing
At the preliminary hearing held on July 24, 2020, Waid testified that someone
mentioned defendant suffered from schizophrenia, and defendant’s mother J.R. described
defendant’s reporting of a hallucination. J.R. also told Waid that, “when [defendant] was
driving the car, he was looking towards the passenger seat, and he was seeing his
girlfriend.” Defense counsel requested that the trial court reduce the charged offense to a
misdemeanor pursuant to section 17, subdivision (b). The prosecution opposed the
request and argued that defendant’s self-serving statements were the only evidence to
support his claim of hallucinating at the time of the incident.
3. Pretrial motion
In advance of trial, the prosecution moved in limine to prohibit the introduction of
any evidence or opinion that the defendant suffered from any mental illness at the time of
the incident unless the witness was qualified by the court to render such an opinion. The
motion explained that the prosecution had not been provided any evidence regarding
4.
defendant’s mental health conditions from any experts that might testify on behalf of the
defense. Defense counsel had no objection “as far as an opinion goes,” and he informed
the trial court that he did not have an expert to testify about defendant’s mental illness.
The court granted the motion.
4. Trial proceedings
On March 14, 2022, defense counsel concluded his opening statement to the jury
by stating, “The evidence is going to show a doubt as to what [defendant]’s mental state
was at the time of the incident, and also we’re going to go into a lot more detail about
what happened in the car before, during, and after the alleged incident.”
During the second day of the trial, defendant’s mother was about to testify when
the prosecution requested that the trial court “impress upon her the [c]ourt’s order not to
bring out any testimony about any medical conditions or things of that nature.” Defense
counsel indicated that defendant’s mother thought he was having a psychotic break on the
night of the incident, but the court clarified that was something she was not qualified to
provide an opinion on. The court explained that defendant’s mother could state that
defendant was “acting erratic, he was sounding crazy .… But what she can’t say is, he
has history of mental health issues, or he has been diagnosed with such and such. Those
would all be opinion testimony or hearsay, not her personal knowledge.”
Defense counsel then responded, “Well … there’s an accident when [defendant]
was 17 [years old] that led to the schizophrenia, and so she would have been there with
the doctor as his mother, primary caregiver, and I think that she should be able to testify
to that.” The trial court asked how defendant’s mother could testify to that extent without
injecting hearsay testimony from a doctor. The court also asked defense counsel, “Are
you expecting that [defendant’s mother is] going to be able to come in and say he’s been
diagnosed as a schizophrenic?”
Counsel for the defendant eventually argued that, “[Defendant’s mother] should be
allowed to say that he suffers from schizophrenia because that’s part—I mean, it’s been
5.
[10] years since the accident. It’s been part of the family knowledge. The sister knows,
and everybody in the family knows. And I don’t think at this point in time that the
diagnosis— .… [¶] I think it’s trustworthy hearsay that should be admitted and it goes to
a medical condition.”
The trial court then stated, “Well, I’m assuming that if he’s been diagnosed that
way, then there are medical people that treat him for that disease or that mental health
illness that could come and testify. But you can’t end-around that by bringing the
[defendant’s] mom in to say it. [H]ow do we know it actually happened?” Defense
counsel responded as follows: “Well, at this point in time I’m staying away from it. I
didn’t want to ask the sister about that. [¶] But [his sister] says in the police report that
he suffered from schizophrenia. And the [defendant’s] mother also says in the police
report that he was off his meds at that point in time.”
The trial court eventually ruled that defendant’s mother would not be allowed to
testify regarding a mental health diagnosis of defendant. She would be allowed to testify
about defendant’s erratic behavior at the time of the incident and in the past, but she
could not speak to any diagnoses. Defendant’s mother was brought into the courtroom
and admonished not to testify that defendant had a mental illness or experienced a
“psychotic break” because those opinions were limited to expert testimony.
5. Sentencing
The probation report states as follows:
“[Defendant] stated he was experiencing a mental health condition
that caused him to believe his niece was his girlfriend. He reportedly had
other mental breaks previously but has since been prescribed an
antipsychotic medication that has prevented subsequent episodes. A report
from the defendant’s [p]sychiatrist, Dr. Jerry Jones, revealed he has
suffered recurrent psychotic episodes starting in 2014, when he was
reportedly hospitalized in a psychiatric facility for several weeks. [Jones]
specifically mentioned the defendant believing his mother was not his
mother, and that his actual mother had been killed. [¶] This officer tends
to be skeptical towards the claims the defendant is making, as they are hard
6.
to verify and easy to misuse. However, the letter from [Jones] undeniably
shows [defendant] has a psychotic disorder that could result in the type of
thinking he asserts occurred in this incident, and the medications he is
taking appear to be consistent with someone suffering from these issues.”
An April 1, 2022 letter from Jones that was attached to the probation report stated
that defendant was diagnosed with a psychotic disorder not otherwise specified in 2015,
and he was prescribed medication. Jones did not see defendant from November 2016 to
April 2018. Defendant took his medications only intermittently during that period of
time. Defendant returned to Jones on April 4, 2018, because of his claim of “recurrent
psychotic symptoms including thinking people were other than who they were.” It was
asserted that defendant called his mother “babe” as if she were his girlfriend. Defendant
reported that he no longer had delusions that people were other than who they were after
taking his prescribed medication for four weeks.
At defendant’s sentencing hearing held on May 13, 2022, defense counsel argued
that there was “significant evidence of mental issues” to allow consideration of mental
health court. However, he acknowledged that defendant’s conviction was not eligible for
mental health court. Defense counsel then argued that defendant’s mental health was a
mitigating circumstance to consider and that there was “significant evidence of some
mental issues.” The trial court followed the recommendation in the probation report for a
two-year term of probation and six months in jail. In reaching its decision, the court
explained that, “I have to look at the circumstances in light of the mental health issues
that were clearly evident presented in the evidence at the trial and also in the probation
report, and the significant punishment to be registered as a sex offender, [lose] his license
and also spend six months in county jail.”
B. Legal Principles and Standard of Review
Under the federal and state Constitutions, a criminal defendant is entitled to the
effective assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; People
v. Ledesma (1987) 43 Cal.3d 171, 215.) The burden of proving ineffective assistance of
7.
counsel is on the defendant. (People v. Pope (1979) 23 Cal.3d 412, 425.) “To secure
reversal of a conviction upon the ground of ineffective assistance of counsel under either
the state or federal Constitution, a defendant must establish (1) that defense counsel’s
performance fell below an objective standard of reasonableness, i.e., that counsel’s
performance did not meet the standard to be expected of a reasonably competent attorney,
and (2) that there is a reasonable probability that defendant would have obtained a more
favorable result absent counsel’s shortcomings. [Citations.] ‘A reasonable probability is
a probability sufficient to undermine confidence in the outcome.’ ” (People v.
Cunningham (2001) 25 Cal.4th 926, 1003; see generally Strickland v. Washington (1984)
466 U.S. 668, 687–694 (Strickland).) The defendant must prove prejudice as a
“ ‘demonstrable reality.’ ” (People v. Williams (1988) 44 Cal.3d 883, 937.) Mere
speculation as to the effect of counsel’s errors or omissions is not enough. (Ibid.)
C. Analysis
Defendant contends reversal is required because he was prejudiced by his
counsel’s deficient performance. However, we need not determine if defense counsel’s
actions fell below an objective standard of reasonableness because defendant cannot
demonstrate that counsel’s alleged deficient representation prejudiced him, i.e., there is a
reasonable probability that, but for counsel’s purported failings, defendant would have
received a more favorable result. (People v. Dennis (1998) 17 Cal.4th 468, 540–541;
Strickland, supra, 466 U.S. at p. 687.) “The likelihood of a different result must be
substantial, not just conceivable.” (Harrington v. Richter (2011) 562 U.S. 86, 112.)
Stated differently, a “defendant must prove prejudice that is a ‘ “demonstrable reality,”
not simply speculation.’ ” (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.)
Defendant, in support of his argument that he was prejudiced, primarily argues
that a mental health defense would have been “strong” with testimony from Jones, and he
claims that it was superior to the theory actually utilized by the defense at trial. He relies
upon statements from the probation officer that the letter from Jones supports a claim that
8.
defendant could have been suffering from delusions at the time of the incident.
Defendant also argues that the trial court’s general comments on the evidence regarding
defendant’s mental health issues lend additional credibility to Jones’s letter. He asserts
that this alternative “mental health defense” could have created reasonable doubt in the
mind of a juror due to the absence of specific intent, a mistake of fact, or lack of
consciousness. Accordingly, defendant concludes that a juror could have voted to acquit
based on testimony from Jones.
Even if the alternative mental health defense appears more favorable to defendant
in hindsight, we find that the result would have been the same. The evidence of
defendant experiencing a brand-new symptom with such a specific delusion at the time of
the incident would not have changed the result. He had not seen Jones since November
2016, and he did not visit Jones again until the month following the incident. Defendant
only claimed that he was mistaking the identities of persons known to him after law
enforcement began its investigation of the incident. Once he began taking medications,
he reported that he did not experience this type of symptom again. In addition, this
purported delusion is not sufficiently similar to the 2014 incident, where defendant
reportedly believed that his mother was deceased and not who she claimed to be.
The evidence that defendant was actually experiencing a delusion that resulted in
him mistaking C.V. for his girlfriend is based solely on defendant’s subjective and
self-serving statements that were made to third parties. The fact that defendant did not
immediately convey such a mistake to C.V. at the time of the incident lends more
credibility to the prosecution’s evidence that he acted deliberately and repeatedly
apologized to C.V. on the drive home. The jury would have been able to clearly
recognize that defendant’s newly developed mental health symptom was nothing more
than a fabricated excuse to avoid criminal prosecution. Thus, defendant’s contention that
the verdict would have been different with testimony from Jones is based on scant
speculation. (See People v. Smith (2011) 198 Cal.App.4th 415, 429–430 [rejecting an
9.
ineffective assistance of counsel claim because it was not reasonably probable the jury
would have concluded that defendant did not commit the relevant offense].)
This alternative theory is also inconsistent with defendant’s own conduct at the
time of the incident. Defendant had recently broken up with his girlfriend, and she had
not been with C.V. and defendant for a considerable period of time. It would be a
considerable stretch for the jury to accept that defendant would have greeted his newly
ex-girlfriend by touching her breast, ignoring her rejection of that advance, and then
attempting to kiss her. Furthermore, there is no evidence that defendant ever mentioned
this mistaken delusion to anyone except for his mother and psychiatrist after law
enforcement had already been contacted. After weighing the available evidence, its
strength, and the strength of the evidence the prosecution presented at trial, we conclude
the result would not have been different. (In re Thomas (2006) 37 Cal.4th 1249, 1256–
1257.)
In sum, there would be no substantial basis for a reasonable juror to conclude that
defendant’s conduct was the result of a mental illness if testimony from Jones had been
presented. The record simply does not support defendant’s unsubstantiated claim that
testimony from his psychiatrist would have provided exculpatory evidence. Accordingly,
it is not reasonably probable the jury would have concluded that defendant acted without
specific intent, on a mistake of fact, or while unconscious at the time of the incident.
Defendant has failed to establish the second prong required for a successful claim of
ineffectiveness of counsel—prejudice—and his claim must fail.2 (See Strickland, supra,
466 U.S. at pp. 695–696; People v. Price (1991) 1 Cal.4th 324, 440.)
2 Defendant filed a petition for writ of habeas corpus on August 10, 2023 (case
No. F086684), that reiterates his contention regarding his ineffective assistance of
counsel claim and provides a declaration of trial counsel explaining the reason for
proceeding without testimony from defendant’s psychiatrist. We previously issued an
order stating that consideration of the petition was deferred pending the outcome of the
10.
DISPOSITION
The judgment is affirmed.
present appeal. Because defendant has failed to establish prejudice by counsel’s decision,
in a separate order we have denied the petition for writ of habeas corpus.
11.