Thursday, May 14, 2009
High Court Denies Review in Antelope Valley Slaying
By KENNETH OFGANG, Staff Writer
The California Supreme Court yesterday declined to review a Court of Appeal ruling affirming the conviction of a Lancaster man serving 74 years to life for murder and attempted murder in separate incidents.
The justices, at their weekly conference in San Francisco, unanimously left standing a February ruling by Div. Two of this district’s Court of Appeal.
Joseph Hix, now 36, was convicted in the September 2005 attack on 64-year-old Alphonse Lupien, a great-grandfather who died in a hospital March 2006 from pneumonia related to paralysis, which was caused by stabbing.
Witnesses testified that Lupien, who worked at a nearby golf course, was stabbed in the back with a knife as he walked toward his car after eating a doughnut and drinking coffee outside a Lancaster doughnut shop. Hix was arrested a month later after the manager of his apartment complex identified him from a bulletin that was passed out by police, who obtained a description from the victim.
Following his arrest, police tied Hix to an August 2005 assault on a 20-year-old McDonald’s employee, who was stabbed in the neck with a pen. Hix, who had a history of head injury, drug use, and violent behavior, pled not guilty by reason of insanity, but the jury found him sane at the time of the incidents and found him guilty of murder and of attempted premeditated murder with a deadly weapon.
The defendant admitted a prior conviction for attempted murder, resulting in a doubled sentence of 50 years to life for murder, plus a one-year weapons enhancement. On the attempted murder count, he was sentenced to life imprisonment, with a minimum term of 23 years including prior conviction, deadly weapon, and great bodily injury enhancements.
Hix’s court-appointed appellate attorney, John A. Colluci, argued that Los Angeles Superior Court Judge Charles Chung denied the defendant due process by excluding testimony by a defense expert regarding a single photon emission computed tomography, or SPECT scan, that allegedly showed that the defendant suffered from brain damage.
But Justice Kathryn Doi Todd, in her unpublished opinion for the Court of Appeal, said the trial judge properly applied the rule of People v. Kelly (1976) 17 Cal.3d 24, to SPECT scan evidence. Kelly requires that the court exclude evidence based on novel science unless it finds, after an evidentiary hearing, that the methodology is generally accepted in the relevant scientific community.
The SPECT scan, the justice explained, is not considered reliable by neurologists in determining brain injuries.
Doi Todd noted the trial judge’s conclusions, which she said were entitled to deference, that the defense experts who testified to the acceptance of the scan methodology were qualified doctors, but lacked the research qualifications of the prosecution’s expert neurologist.
The prosecution expert testified that SPECT scans do not necessarily produce consistent results, that only a limited number of controlled studies have been done, that the validity of the manner in which the scanning of Hix was done—including tests over the course of two days, in an active state while he viewed a computer screen, and in a rest state with eyes open—had not been verified, and that the defense expert who did the scanning, psychiatrist Dr. Daniel Amen, did not consider the effects of prescribed drugs that the defendant was taking at the time.
Amen, Doi Todd wrote, violated scientific guidelines by not testing for illicit drugs prior to scanning, since use of such drugs may have skewed the results. Thus, the jurist explained, “the SPECT scan might have rendered results showing brain dysfunction or damage that may not have been present at the time of the crime.”
Deputy Attorneys General Victoria B. Wilson and Mary Sanchez represented the state on appeal.
The case is People v. Hix, B203884.
In other conference action, the justices:
•Agreed to decide whether this district’s Court of Appeal erred by allowing an increase in the term of a commitment under the Sexually Violent Predator Act from two years to an indeterminate term pursuant to the 2006 Jessica’s Law amendments to the act, even though prosecutors had stipulated that only the two-year commitment term would be sought. The case is People v. Castillo, B202289.
•Denied a request for depublication of a Sixth District Court of Appeal ruling that the Homeland Security Act does not exempt Santa Clara County’s data depository on land boundaries and geographic data from disclosure under the California Public Records Act. The case is County of Santa Clara v. Superior Court, 170 Cal.App.4th 1301.
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