California Court of Appeal: Counsel Ineffective for Failure to Investigate Mental Health History
In October 2018, police responded to two elderly women, Rachel D. and Sheryl C., complaining that O’Hearn had threatened them at the apartment complex where all three resided. O’Hearn allegedly shouted, “I’m going to f*cking kill you guys – I’m going to kick your ass” before disappearing into his apartment and slamming his door behind him. Police noted on their report that they had responded to the address numerous times because of O’Hearn making similar threats to these two women. On this occasion, the officers also noted on their report that they considered whether O’Hearn could be committed under Welfare and Institutions Code § 5150 for a mental disorder but ultimately arrested him for making criminal threats in violation of California Penal Code § 422 and for probation violations from an earlier case.
O’Hearn hired attorney Manton Selby, and while represented by Selby, O’Hearn pleaded guilty to the § 422 charge in exchange for dismissal of two probation violations. In January 2019, O’Hearn was sentenced to three years of felony probation with a stay-away order as to both victims. O’Hearn’s presentence report (“PSR”) noted he “ha[d] been diagnosed with bipolar disorder and [was] not taking his medication at the time of his offense.”
In May 2019, attorney Michael Coffino submitted a motion to withdraw O’Hearn’s plea. Coffino argued that the plea was the consequence of Selby’s ineffective assistance. Coffino made several allegations, but significant to this review, he alleged Selby: never asked O’Hearn about his mental illness and failed to investigate O’Hearn’s 800-page medical record that showed O’Hearn had been hospitalized twice for mental illness with a history of schizophrenia and diagnosed as currently suffering “psychosis and schizoaffective disorder.”
Coffino also alleged that even though the prosecutor had informed Selby that Sheryl C. had a conviction for providing false information to a police officer, Selby did not explain impeachment evidence to O’Hearn.
At a hearing on the motion, Selby testified that he initially had doubts about O’Hearn’s competence due to the police report, but since O’Hearn understood his charged offenses and was able to assist in his defense, Selby was “satisfied” that O’Hearn was competent. The superior court denied the motion, and O’Hearn appealed.
The Court observed “[a] defendant seeking relief on the ground of ineffective assistance of counsel must establish not just that ‘counsel’s representation fell below an objective standard of reasonableness ... under prevailing professional norms,’ but as well ‘that there is a reasonable possibility that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’” People v. Ledesma, 729 P.2d 839 (Cal. 1987).
The courts don’t ask what the best lawyer would do but ask only what a reasonable lawyer would do under the circumstances presented to the lawyer. People v. Jones, 186 Cal. App. 4th 216 (2010). If the circumstances suggest a possible avenue of defense, counsel has a duty to undertake reasonable investigations to permit an informed decision on whether to pursue that avenue of defense. Strickland v. Washington, 466 U.S. 668 (1984).
In the instant case, Selby was aware from the police report and from his own interactions with O’Hearn that he suffered from mental illness. A reasonable attorney would have investigated to determine if O’Hearn’s illness provided an avenue of defense. Had he done so, Selby would have uncovered O’Hearn’s diagnosis of “psychosis,” which is defined as “severe mental illness, characterized by loss of contact with reality (in the form of delusions and hallucinations) and deterioration of intellectual and social functioning.” Oxford English Dictionary.
To convict O’Hearn of violating § 422, the People had to prove he intended his statement be understood as a threat and intended that the threat be conveyed to the victim. CALCRIM No. 1300. Evidence of O’Hearn’s diagnosis could’ve been used to persuade the jury that he lacked the requisite intent. Additionally, a violation of § 422 requires proof that the threat was immediate and communicated with serious intention so as to cause the victim to believe the threat would be carried out and to be in sustained fear for her own safety. CALCRIM No. 1300.
The fact that O’Hearn had made numerous similar threats to the same two victims but had never followed through could be used to persuade the jury that the victims were not actually in sustained fear for their safety. Finally, there was the impeachment evidence of Sheryl C.’s conviction for lying to a peace officer, which Shelby never acted upon.
If not for Selby’s unprofessional errors, there was a reasonable probability the outcome would have been different, the Court concluded. Thus, the Court vacated the denial of O’Hearn’s motion to withdraw his plea and remanded for trial.
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Related legal case
People v. O’Hearn
|Cite||2020 Cal. App. LEXIS 1062 (2020)|
|Level||State Court of Appeals|