People v. Solvey CA2/7 ( 2015 )

Filed 5/19/15 P. v. Solvey CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B255080
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA083379)
v.
STANLEY H. SOLVEY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles, Leslie E. Brown,
Judge. Affirmed.
Gideon Margolis, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Victoria B. Wilson and
Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
______________________________
Stanley H. Solvey appeals from the judgment entered following his conviction by
a jury of robbery and attempted robbery. Solvey, who contended at trial he was in a
blackout state due to side effects of prescribed medicine when he committed the crimes,
argues the trial court committed prejudicial misconduct by belittling his expert witness on
toxicology and abused its discretion when it denied his request on the first day of trial to
allow an additional expert witness to testify on his behalf. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Information
Solvey was charged by information with one count of second degree robbery (Pen.
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Code, § 211) (count 1), one count of attempted second degree robbery (§§ 644, 211)
(count 2), one count of use of a facsimile weapon of mass destruction (§ 11418.1)
(count 3) and one count of threatening to use a weapon of mass destruction (§ 11418.5,
subd. (a)) (count 4). The information specially alleged Solvey had suffered three prior
serious or violent felony convictions within the meaning of the three strikes law (§§ 667,
subds. (b)-(i), 1170.12, subds. (a)-(d)) and four prior serious felony convictions as
defined by section 667, subdivision (a), and had served four separate prison terms for
felonies (§ 667.5, subdivision (b)). Solvey pleaded not guilty as well as not guilty by
reason of insanity and denied the special allegations. Counts 3 and 4 were dismissed
before trial.
2. Summary of the Evidence Presented at Trial
a. The People’s case
i. The bank robberies
During the afternoon of February 12, 2013 David Gonzales, a bank teller, was
greeting customers in the lobby of the Chase bank located on Venice Boulevard in
Mar Vista. Solvey entered the bank wearing a wig and a long-sleeved shirt. He walked
quickly—neither staggering nor stumbling—to the teller line, carrying a binder and a
square object resembling a lunch pail.
1 Statutory references are to this code unless otherwise indicated.
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Gonzales noticed a line was developing and returned to his teller window. When
Solvey arrived at the window, he removed a typewritten note from the binder and gave it
to Gonzales. The note read, “This is a robbery. There’s a bomb in the drinking vessel.
Dynamite sticks. I also have a handgun. Follow the instructions and no one will get hurt.
No dye packs and no activating alarms while I am in this bank. No drama. No boom,
boom. Put all the cash from the teller drawer in the manila envelope with this note. . . .”
Solvey told Gonzales “to not be a hero” and reiterated, “No silent alarms. No dye
packs.” Solvey opened the lunch pail, revealing an object that looked like a road flare
with wires taped to the ends. Gonzales gave Solvey $2,320, and Solvey walked quickly
out of the bank.
Approximately 45 minutes later Solvey entered a West Los Angeles branch of the
Bank of America wearing a wig, long-sleeved flannel shirt and reading glasses. Solvey
approached Alex Torbatian’s window and handed him the same note as the one used
during the Chase bank robbery (or a copy of it). Solvey then demanded money and
opened a bag containing what looked like a handgun with red tape on it. Torbatian
turned around and told his manager and coworker he was being robbed. As Torbatian
turned back, Solvey told him not to press the alarm. Torbatian did so anyway, and
Solvey walked quickly out of the bank.
ii. Solvey’s arrest
On February 23, 2013 Long Beach Police Officer Jacob Dillon was off duty,
sitting in a parked car on Linden Avenue in Long Beach. Dillon testified he saw Solvey
knocking on the door of a nearby house. He appeared to be talking to someone at the
door and was “kind of animated,” “moving his arms around.” Solvey then ran from the
front porch, down the driveway. Dillon thought Solvey’s behavior was suspicious, so he
drove into the alley behind the house. Dillon saw Solvey climb over a fence into the
alley, looking at trash cans and trees. Solvey began walking down the alley toward
Dillon, who was on the phone with police dispatch reporting a suspicious person. Solvey
took a backpack off the hood of a white truck parked in the alley and kept walking.
Dillon drove out of the alley and watched Solvey go into a restaurant.
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Antonia Sorto, who answered the door at the Linden Avenue home, testified
Solvey told her his son or nephew had thrown something over the fence. Sorto said she
would throw it back over the fence when she found it. When she went to the backyard,
Solvey was already there looking for something. Sorto told him to leave. Solvey told
Sorto not to be scared if she found the item because, although it looked like a bomb, it
was not going to explode. Sorto called the police.
Long Beach Police Officer Anthony Garcia responded to the suspicious person
call placed by Officer Dillon. Garcia detained Solvey after he left the restaurant
bathroom. While Garcia was obtaining general information from Solvey, Solvey
volunteered he had permission to be at the residence and was looking for a device that
looked like a bomb. During a search of Solvey’s backpack, officers found a few long-
sleeved shirts, a white hat, sunglasses and a folder with a note that read, “Follow
instructions and no one will get hurt. There is a bomb in the bag. No alarms and no dye
packs. Put all the money in the bag.”
Long Beach Police Officer Jorge Grajeda, who had assisted Garcia during
Solvey’s detention, testified he subsequently went to the Linden Avenue residence to
look for suspicious items. Grajeda found a device that looked like a bomb in one of the
trashcans in the alley. The device turned out to be road flares with cables attached to
them.
iii. Laura Osuna’s testimony
Laura Osuna testified she and Solvey were in a romantic relationship from 2010
through January 1, 2012. After their relationship ended, Solvey and Osuna remained
friends. They were together for two days before the robberies occurred, and Solvey had
acted normally.
On February 11, 2013 Osuna bought Solvey a cheap wig as a joke. The two had
previously talked about Solvey purchasing a wig from a professional wig shop to cover a
large tattoo on the back of his head.
At noon on February 12, 2013 Osuna rented a car for Solvey, and the two returned
to Osuna’s home. Solvey left about an hour or two later. He was acting normally and did
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not seem in a rush to leave. When Solvey returned in the early evening, he was coherent
and agitated, but “nothing too out of the ordinary.” He said he needed the car another
day and gave Osuna $300 in small bills. Solvey left at 11:00 p.m., and Osuna did not see
him again until the next evening. At that point, he was acting erratically.
Osuna, who had worked in psychiatric facilities with schizophrenic and psychotic
adults, testified Solvey had told her he suffered from schizophrenia; but she did not
believe him until she saw him talking to himself, as well as to mirrors and people who
were not there. Osuna did not recall ever seeing Solvey black out, but he had told her on
several occasions that “he had lost some days or up to a week.” Solvey did not complain
to Osuna about blacking out on February 12, 2013. Osuna also testified she had never
seen Solvey have a seizure or hear him complain about seizures.
b. The defense’s case
Solvey represented himself at trial and was permitted to testify in a narrative
fashion. He also introduced testimony from two expert witnesses.
i. Solvey’s testimony
Solvey testified he had been diagnosed with schizophrenia when he was 15 years
old. He is able to function and deal patiently with his symptoms when he takes
medication. When he does not take medication, he hallucinates, hears voices and has
“little meltdowns” during which he talks to himself and wanders off. This happens once
or twice a year. Solvey has also suffered from seizures ever since he contracted an illness
in 2005. He experiences convulsions that last two to five minutes followed by a state of
confusion lasting from five to 30 minutes. Solvey does not recall events that occur
during that period.
Solvey takes medication to control his seizures. Solvey had been obtaining his
medication in Los Angeles until he moved to Mexico in the fall of 2013. While in
Mexico Solvey’s insomnia and seizures became worse, so he asked a doctor to prescribe
something stronger than the Benadryl he had been taking for insomnia. The doctor
prescribed flunitrazepam (Rohypnol).
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Solvey, a part-time tattoo artist, testified he asked Osuna to rent him a car on
February 12, 2013 because he had a tattoo appointment in Apple Valley and did not want
to drive there on his motorcycle. He took a Rohypnol at about 2:00 a.m. on February 12,
2013 before he went to sleep. He was groggy when he awoke the next morning and took
some medication, but was not sure what it was because he did not have his reading
glasses. When Solvey and Osuna returned from renting the car, he was having problems
with his motor control and thought he was about to have a seizure. After waiting
approximately 10 minutes with no seizure, Solvey was confident he could drive and took
“a light seizure nerve medication.”
Solvey drove to his son’s house to get his tattoo equipment and print out designs.
While he was there, he had a seizure and lost consciousness. When he awoke, the
contents of his backpack were on his lap, and his medication bottles were out. He did not
recall taking additional medication. He began hallucinating about a war between China
and Japan. The next thing Solvey remembered was standing in an alley near the car with
the road flare device sitting on the hood. He threw the device over an arch. He then saw
a backpack that was not his and, thinking he was in trouble, threw it over a wall. He
recalled driving out of the alley, but remembered nothing else until he parked a few
blocks from Osuna’s house. He had $2,000 in his pocket, but did not recall how he got it
or giving Osuna $300.
With respect to his actions the day of his arrest, February 23, 2013, Solvey
explained he returned to where he had thrown the road flare device to verify it was not a
bomb and to be held accountable for whatever he had done. Solvey testified he was in a
complete blackout for at least four hours on the day of the robbery. He did not intend to
rob a bank that day. Moreover, he did not know flunitrazepam was illegal in the United
States or the side effects of the medication he had taken to control his seizures.
ii. Dr. Back-Madruga’s testimony
Dr. Carla Back-Madruga, a clinical psychologist specializing in neuropsychology,
reviewed Solvey’s medical records and evaluated him on July 1, 2013. Dr. Back-
Madruga testified the most prominent psychiatric disorders with which Solvey had been
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diagnosed were schizophrenia and schizoaffective disorder, both characterized by
hallucinations and delusions. Solvey was also diagnosed in 2006 with a partial complex
seizure disorder.
After administering a number of tests, Dr. Back-Madruga opined Solvey’s IQ was
average and his performance on achievement tests was within normal limits at about a
high school grade level equivalent. Solvey, however, had moderate impairment in
several aspects of executive function, including cognitive flexibility and his ability to
inhibit impulsive responding. Dr. Back-Madruga concluded Solvey’s test scores were
credible and he was not feigning or exaggerating his cognitive impairment.
During cross-examination Dr. Back-Madruga testified she saw a notation in
records from Patton State Hospital indicating Solvey had sniffed paint and could not
recall what had happened in connection with a previous arrest in 2001. She also testified
Solvey was capable of conceiving a plan and executing it, but it may not be a reasonable
plan. Solvey did not tell Dr. Back-Madruga he had had blackouts or mention he had
taken flunitrazepam.
iii. Dr. Rody Perdescu’s testimony and the court’s questions that are
the basis of Solvey’s prejudicial misconduct contention
Dr. Rody Perdescu, an expert in forensic toxicology, reviewed Solvey’s medical
records and interviewed him. Dr. Perdescu testified flunitrazepam is a hypnotic, sedative
anticonvulsant used to treat seizures, chronic insomnia and depression. Although the
drug is a depressant for the central nervous system, paradoxically an “individual can
become aggressive, lose control, and can also commit criminal crimes.” Because it is a
long-acting drug, people who take it may experience a residual hangover effect, including
sleepiness and impaired psychomotor or cognitive functioning for a day or more after
taking it. The drug can also cause retroactive amnesia, akin to “a blackout.” Although
flunitrazepam is not available in the United States, it is available in other countries
including Mexico. Dr. Perdescu described it as “one of the most effective drug[s] to treat
insomnia.” Some medications, when taken with flunitrazepam, increase its side effects.
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During cross-examination, Dr. Perdescu agreed side effects of flunitrazepam may
include slurred speech and poor coordination and motor skills. After Dr. Perdescu was
shown a short video of Solvey approaching the bank teller during one of the robberies,
she testified she could not determine whether Solvey showed any signs of impairment
from having taken flunitrazepam. She further explained, “It’s a very short video. So I
don’t know. I know the [flunitrazepam], the next day the person can walk, can talk and
do certain things and not recall. Everybody saw the ‘Hangover’ movies when those
people when they saw on their video what they’ve done, and the people that don’t have
any violent behavior, they couldn’t even believe it was exposed themselves. [sic]And
they all did those things without knowing what they’ve been doing.” The court then
asked, “Hold on. So the ‘Hangover’ movie is a source of authority for your opinions
here? Is that what you are saying?” Dr. Perdescu replied, “No, no. I was just making an
analogy, that’s all. But I cannot say looking through those videos . . . if he was impaired
or not.”
After the prosecutor finished cross-examining Dr. Perdescu, the court asked
Dr. Perdescu to describe the outwardly observable characteristics of an individual who
had just taken flunitrazepam. As the court was attempting to differentiate between the
immediate effect of the drug and the effect after several hours and clarify Dr. Perdescu’s
testimony that a person would “pretty much [go] to sleep,” Solvey asked if he could
object. The court admonished Solvey for interrupting it, but subsequently permitted him
to voice his objection. Solvey argued, “Prejudicial and judicial misconduct, your Honor.
This was highly, highly prejudicial to my witness. . . . You took her on voir dire that
counsel could have easily taken care of . . . .” The court indicated it would address
Solvey’s objection outside the presence of the jury and later overruled it, explaining the
court was entitled to examine witnesses to the extent it deemed appropriate to ascertain
the truth. In making a further record Solvey contended the court had “talk[ed] down to
the witness in a very loud voice.” The court disputed Solvey’s characterization of its
questioning.
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3. The Verdict and Sentence
The jury convicted Solvey of attempted robbery and robbery. In a subsequent
proceeding the jury found Solvey was sane when he committed the crimes. After Solvey
admitted two prior strike convictions and three prior serious felony convictions, the trial
court sentenced him to an aggregate state prison term of 65 years to life.
DISCUSSION
1. The Court Did Not Commit Prejudicial Misconduct When It Asked
Dr. Perdescu Whether “The Hangover” Was Authority for Her Opinion
Solvey contends the trial court committed prejudicial misconduct by belittling
Dr. Perdescu when it asked if her expert opinion was based on the motion picture The
Hangover (Warner Bros. (2009)). This claim has been forfeited and in any event lacks
merit.
The due process clause of the Fourteenth Amendment requires a fair trial in a fair
tribunal before a judge with no actual bias against the defendant or interest in the
outcome of the case. (See Bracy v. Gramley (1997) 520 U.S. 899, 904-905 [117 S. Ct.
1793, 138 L. Ed. 2d 97].) Judicial misconduct occurs when a trial judge strongly suggests
to the jury he or she disbelieves the defendant’s case or otherwise favors the prosecution.
(See Liteky v. United States (1994) 510 U.S. 540, 555-556 [114 S. Ct. 1147, 127 L. Ed. 2d
474]; see People v. Houston (2012) 54 Cal. 4th 1186, 1219 [“court commits misconduct if
it creates the impression that it is denigrating the defense or otherwise allying itself with
the prosecution”].) To violate a defendant’s right to a fair trial, the judge’s intervention
must be significant and adverse to a substantial degree. (See McBee v. Grant (6th Cir.
1985) 763 F.2d 811, 818; see also Duckett v. Godinez (9th Cir.1995) 67 F.3d 734, 740.)
In People v. Sturm (2006) 37 Cal. 4th 1218 (Sturm) the Supreme Court
summarized the California standard for judicial misconduct: “‘[T]he court has a duty to
see that justice is done and to bring out facts relevant to the jury’s determination.’
[Citation.] . . . However, ‘a judge should be careful not to throw the weight of his
judicial position into a case, either for or against the defendant.’ [Citation.] [¶] Trial
judges ‘should be exceedingly discreet in what they say and do in the presence of a jury
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lest they seem to lean toward or lend their influence to one side or the other.’ [Citation.]
A trial court commits misconduct if it ‘“persists in making discourteous and disparaging
remarks to a defendant’s counsel and witnesses and utters frequent comment from which
the jury may plainly perceive that the testimony of the witnesses is not believed by the
judge.”’” (Id. at pp. 1237-1238.)
Solvey has forfeited his judicial misconduct claim because he failed to object and
request a curative instruction when the court asked Dr. Perdescu if she was relying on
The Hangover as authority for her opinions. (See Sturm, supra, 37 Cal.4th at p. 1237
[“[a]s a general rule, judicial misconduct claims are not preserved for appellate review if
no objections were made on these grounds at trial”].) Solvey’s subsequent objection to
the court’s limited examination of Dr. Perdescu—primarily based on the timing of the
examination and the court’s failure to allow Solvey to elicit the information from
Dr. Perdescu—did not reasonably encompass an objection to the court’s earlier question
about The Hangover.
Even if not forfeited, however, the claim lacks merit. There was nothing improper
about the question on its face. With the proliferation of forensic and crime-based
television shows and films, it is not an unreasonable concern that juries might be
influenced by media portrayals of issues that may be germane to a defendant’s guilt or
innocence. In ascertaining Dr. Perdescu’s opinion was not actually based on The
Hangover after she had mentioned it during her testimony, the court acted well within its
discretion, and, if anything, likely bolstered her credibility. Indeed, Solvey had also
referred to the film in his opening statement, contending, “[A]s silly as it sounds, it’s like
‘Hangover’ one where the guys ingest a medication on the roof and they go around town
that night doing a bunch of things they would not have normally have done and wake up
the next morning with no recollection of what they have done. In a complete blackout
the whole night.” With two references to The Hangover, the court was justified in
inquiring about the relationship between the film’s storyline and Dr. Perdescu’s expert
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2
testimony. Moreover, even if the question as articulated was somehow inappropriate
because of the court’s tone of voice—a characteristic impossible to determine by
reviewing a transcript on appeal—a single improper question in the context of this trial
does not constitute the kind of significant intervention required to find judicial
misconduct that deprived a defendant of a fair trial. (See People v. Houston, supra, 54
Cal.4th at p. 1221 [“[e]ven if improper, these two brief remarks ‘“fall short of the
intemperate or biased judicial conduct [that] warrants reversal”’”].)
2. The Trial Court Did Not Abuse Its Discretion in Denying Solvey’s Request to
Call a Third Expert Witness
a. Relevant proceedings
At the outset of trial Solvey and the prosecutor estimated trial would take 10 days.
During the ensuing review of witness lists, Solvey requested permission to present the
testimony of a neurologist, Dr. Shapiro, who had not been identified on his witness list,
“to clear up some complex issues such as seizures.” In response to the court’s question
why Solvey had waited until the day of trial to identify Dr. Shapiro, Solvey explained,
“[W]ith further discussions with both of my experts, the toxicologist and the
neuropsychologist, it became evident that I would need a . . . neurologist to simply give
light as to the type of seizures there are and the type of symptoms and signs that come
from those seizures. For instance, it could be complex to the jury, focalized seizures and
generalized seizures, and the difference between the two of them and the type of reaction
that somebody would have and the type of consciousness that somebody would have
under those seizures. It’s very relevant to the case. It’s not a material issue as to the truth
of the matter or not, it’s just to clear up some of the testimony that will be heard from . . .
myself, and to show the jury the complexities that are beyond my scope and expertise
[and] beyond the scope and expertise of my two witnesses.”
The court denied Solvey’s request, finding it was untimely, would undermine
judicial economy by adding a half day of testimony to an already lengthy trial and would
2 Dr. Perdescu later testified Solvey had not mentioned the film to her and it was
merely a coincidence they had both referred to it.
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be prejudicial to the People, who had not had time to prepare to cross-examine a new
expert witness. The court cited Evidence Code section 352 and “any other appropriate
and applicable Evidence Code or procedural code that this is untimely.” Solvey contends
this ruling constituted prejudicial error.
b. Governing law and analysis
“Only relevant evidence is admissible at trial. (Evid. Code, § 350.) Under
Evidence Code section 210, relevant evidence is evidence ‘having any tendency in reason
to prove or disprove any disputed fact that is of consequence to the determination of the
action.’ A trial court has ‘considerable discretion’ in determining the relevance of
evidence.” (People v. Merriman (2014) 60 Cal. 4th 1, 74.) Similarly, the court “has
broad discretion to exclude relevant evidence under Evidence Code section 352 ‘if its
probative value is substantially outweighed by the probability that its admission will (a)
necessitate undue consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.’ [Citations.] Such
‘discretion extends to the admission or exclusion of expert testimony.’ [Citations.] We
review rulings regarding relevancy and Evidence Code section 352 under an abuse of
discretion standard.” (People v. Linton (2013) 56 Cal. 4th 1146, 1181.) “We will not
reverse a court’s ruling on such matters unless it is shown ‘“the trial court exercised its
discretion in an arbitrary, capricious, or patently absurd manner that resulted in a
manifest miscarriage of justice.”’” (Merriman, at p. 74.)
The trial court did not abuse its broad discretion in denying Solvey’s request to
call Dr. Shapiro whose proposed testimony explaining the type of seizures Solvey
experienced was tangential to the case at best. The central issue presented by Solvey’s
defense was whether the flunitrazepam Solvey claimed he had taken caused an extended
blackout period during which Solvey was able to plan and attempt to commit two
robberies without actually having the intent required for those crimes—the subject
addressed by Dr. Perdescu. Balancing the marginal relevance of Dr. Shapiro’s proposed
testimony regarding seizures against the prejudice to the People from Solvey’s failure to
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timely identify the expert and the amount of time it would add to the already lengthy trial,
the court’s ruling to exclude Dr. Shapiro was not arbitrary, capricious or patently absurd.
Solvey contends it was improper for the trial court to exclude Dr. Shapiro under
Evidence Code section 352 because the People failed to object on those grounds in the
trial court. As Solvey argues, generally, “‘[t]he sine qua non for invoking the protection
of Evidence Code section 352 is a request at the trial level that the court exercise its
discretion.’” (People v. Burns (1987) 196 Cal. App. 3d 1440, 1455.) However, “[t]hat is
not to say that the court cannot exclude improper evidence on its own motion. (Evid.
Code, § 765.) When appropriate, the court has the same power to act on its own initiative
without waiting for an objection.” (Gherman v. Colburn (1977) 72 Cal. App. 3d 544,
581.) That is precisely what happened in the instant case.
DISPOSITION
The judgment is affirmed.
PERLUSS, P. J.
We concur:
ZELON, J.
STROBEL, J.*
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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