Case Information
*1 Filed 7/9/12
IN THE SUPREME COURT OF CALIFORNIA THE PEOPLE, )
)
Plaintiff and Respondent, )
) S048440 v. )
)
CHRISTOPHER CHARLES LIGHTSEY, )
) Kern County Defendant and Appellant. ) Super. Ct. No. 56801A ____________________________________)
A jury in Kern County Superior Court convicted defendant Christopher Charles Lightsey in 1995 of the first degree murder of William Compton (Pen. Code, § 187) 1 and of burglary (§§ 459, 460, subd. (a)) and robbery (§§ 211, 212.5, subd. (a)) related to the murder. 2 As to each count, the jury found true the allegations that defendant personally used a deadly weapon in committing the offense (§ 12022, subd. (b)(1)) and that he had served a prior prison term (§ 667.5, subd. (b)). In conjunction with the murder verdict, the jury found true three special circumstance allegations: that the murder was committed in the course of a burglary and a robbery (§ 190.2, subd. (a)(17)(A), (G)), and the murder was 1 All further statutory references are to the Penal Code unless otherwise indicated.
2 Before trial, defendant also pleaded nolo contendere to being a felon in possession of a firearm (§ 12021.1, subd. (a)) and admitted a prior-prison-term sentence-enhancement allegation (§ 667.5, subd. (b)).
intentional and involved the infliction of torture (§ 190.2, subd. (a)(18)). The jury returned a verdict of death, and the trial court, after denying defendant‟s motion for a new trial and the automatic application to modify the verdict (§ 190.4, subd. (e)), sentenced defendant to death. 3 This appeal is automatic. (§ 1239, subd. (b).) As discussed in part I.B.1.b., post , we conclude the trial court committed reversible error by permitting defendant to represent himself during proceedings to determine whether he was mentally competent to stand trial. To remedy this error, we remand the case for further proceedings to allow the trial court to determine whether a retrospective evaluation of defendant‟s competence to stand trial is feasible and, if it is, to hold such a hearing. If the trial court determines such a hearing is not feasible or defendant was incompetent, defendant is entitled to a new trial.
I. G UILT P HASE
A. Facts
1. Prosecution Evidence William Compton, 76 years old at the time of the murder, lived alone in his house on Holtby Road in Bakersfield. Compton was an avid ham radio operator and collector of firearms. He owned an extensive collection of handguns and rifles, as well as equipment and materials related to the firearms, such as ammunition and maintenance supplies, all of which he stored in his house. He kept in a notebook a record of the various firearms he had purchased and sold over the years. His radio equipment was set up in one room of his house, and his motor home, which was parked in front of his house, contained more radio equipment. 3 The court stayed the sentences on the remaining counts pursuant to section 654.
Compton had been diagnosed with colon cancer that had metastasized to other parts of his body. He had started a course of radiation treatment a few days before the murder and had an appointment for his fourth session at 11:30 a.m. on July 7, 1993. The medical office where Compton received his treatments was located a 10-minute drive from his house, and on his previous three appointments he had arrived approximately 15 minutes before his appointment‟s scheduled time. Compton did not, however, make it to his appointment on July 7. A neighbor had seen him in his backyard at approximately 7:45 that morning. About 9:30 a.m., another neighbor saw a person she thought was Compton walking in the driveway in front of the house. The man was wearing khaki pants like those the first neighbor described Compton as wearing. Two of Compton‟s friends telephoned him on four occasions that day, but he did not answer any of the calls. The calls were made at approximately 8:01 a.m., 8:49 a.m., 11:05 a.m., and 1:35 p.m. George Miller, the friend who had made three of the calls, including the final one, eventually called the medical office where Compton had his appointments and learned that Compton had not arrived for his treatment. Miller, his wife, and the other friend who had called Compton that day then went to his house to check on him. The doors of the house were locked, and their knocking received no response. On looking through a bedroom window, Miller‟s wife saw Compton‟s body on the floor. The trio called 911, and the firefighters who responded to the scene forced open a window and confirmed that Compton was dead. It was very hot inside the house, and Compton‟s body, which was lying faceup on the floor and clothed only in underwear, was stiff with rigor mortis. There were wounds to Compton‟s torso, but their exact nature and number was not clear due to the blood on the body.
The police officers who responded determined that, other than where the firefighters had entered, the house bore no sign of forced entry nor were there any *4 obvious signs that any property had been removed. Still in the house were a pair of pants containing Compton‟s wallet hanging on the towel rack in the bathroom, Compton‟s ham radio equipment, tools, a television, a videocassette player, and a rifle. The police officers and coroner‟s assistant at the scene theorized that Compton may have committed suicide, based on information concerning his serious medical condition and the circumstances that Compton‟s body bore what appeared to be superficial, “hesitation wounds,” his body had not been moved after his death, and there were no obvious indications that a robbery had occurred.
Based on the initial uncertainty regarding the nature of Compton‟s death and the possibility it might have been a suicide, the police did not conduct a full forensic examination of the house and instead departed after sealing it. An employee of the coroner‟s office notified Compton‟s sister-in-law, Margaret Compton, of his death. The following day, July 8, 1993, Margaret went to the coroner‟s office to obtain the keys to Compton‟s house and vehicles. The coroner‟s assistant advised Margaret that she should secure Compton‟s belongings and vehicles before potential burglars learned of his death. She and her son Anthony then went to the house and removed a number of items, including five firearms, a ceremonial sword, a telephone answering machine, a television, a videocassette recorder, a computer, a ham radio, locksmith equipment, and a number of power tools. They also took the notebook that contained Compton‟s records of the firearms he had bought and sold, and two empty video camera boxes. 4
The coroner conducted an autopsy of Compton‟s body on July 9, 1993. Once the blood had been washed off the body and the full extent of Compton‟s 4 The cameras were not in the house.
wounds became apparent, that his death was a homicide and not a suicide was clear. There were 42 stab wounds grouped in three clusters in the front of his abdomen, on his neck and upper chest, and on his face, and one more stab wound in his right armpit. Two of the wounds in the chest had penetrated his heart, and the wounds to his neck had severed his left jugular vein and left carotid artery. As a result of the wounds to his heart and carotid artery, Compton would have lost consciousness and then bled to death within 15 minutes. The wounds appeared to have been inflicted more or less contemporaneously by a single object approximately a half-inch wide and at least five inches long. The object might have been a letter opener, a screwdriver, or a nonserrated metal file. The infliction of these wounds would have caused “extreme physical pain and suffering.” There also were some superficial abrasions and bruising on his forehead, face, and chin that appeared to be slightly older than the stab wounds, but still fairly fresh. These injuries were consistent with “blunt trauma,” such as being punched with a fist or falling and hitting some object.
A pathologist testified the handling of the body after it was found rendered “some of the usual parameters to gauge time of death invalid.” In response to a hypothetical question paralleling the circumstances of this case—including the stage of the rigor mortis of the victim‟s body and environmental factors such as the ambient temperature—the pathologist confirmed such circumstances would be consistent with the victim‟s having died at 11:00 a.m. on the day his body was discovered. 5
5 The investigating officer later testified as a witness in the defense case that he had written in a report that the pathologist had said the time of death “could be as early as 08:30 hours [and] as late as 11:00 hours.”
After Compton‟s death was ruled a homicide, the police contacted Margaret Compton and instructed her to return the items she and her son had removed from the house. The police also conducted a more thorough search of the house, but did not conduct a full forensic examination because they considered the scene to have been contaminated. Using the records contained in Compton‟s notebook, the police entered the serial numbers of a number of unaccounted-for firearms into a computerized database of stolen property.
On August 19, 1993, the investigating officer learned that a Jeffrey Mahan recently had pawned in a local pawnshop a rifle with a serial number matching one that had been entered into the system. Police arrested Mahan and questioned him regarding the rifle. He told the police he had pawned the rifle at the request of his friend, Brian Ray. The police then obtained and served a search warrant for Brian Ray‟s residence, finding a total of 24 firearms, including 17 that were identified as having belonged to Compton. Ray and Dane Palmer, who was present in Ray‟s residence when the warrant was served, were arrested. Police later learned that Palmer also had pawned another of Compton‟s firearms at the same pawnshop Mahan had used.
Ray initially was charged with Compton‟s murder and possession of stolen property. He chose to cooperate with the police and, before the trial, the murder charge was dismissed. Following his guilty plea to possession of stolen property, he was granted a sentence of probation. His probation subsequently was revoked, and he was in the midst of serving 16 months in prison when he testified at defendant‟s trial. Ray confirmed at trial that he had not been promised anything in return for his testimony.
Ray testified that he had agreed to help defendant clean and store a number of his firearms because defendant was scheduled to go into custody the next day for a criminal matter unrelated to William Compton‟s murder. (See, post , fn. 6.) *7 Defendant told Ray the guns belonged to him, that he had inherited them from family members, and that he had proper documentation for them. While defendant was in prison, he called Ray a number of times asking about his guns, which he referred to as his “books.” Ray initially stored the guns in a storage locker, but moved them to his apartment shortly before the police executed the search warrant because he was planning to give the guns to defendant‟s girlfriend, Beverly Westervelt. Ray had grown tired of defendant‟s repeated inquiries about the guns.
Beverly Westervelt testified that she had an on-again-off-again romantic relationship with defendant, which they had renewed in January 1992. After living together in an apartment, they began looking for a larger place to live. Defendant wanted to purchase a house near his mother‟s home on Holtby Road. In the summer of 1992, defendant took Westervelt and her children to look at a house on Holtby Road, although there was no indication the house was for sale. The home‟s owner was not interested in selling the house but told defendant the owner of the house across the street might be interested in selling his house. This turned out to be victim William Compton‟s house.
One evening, probably in September 1992, defendant took Westervelt and her children to look at Compton‟s house, which also had no indication it was for sale. After defendant parked in the driveway behind the house, they went to the backdoor and knocked. Compton answered the door and, in response to defendant‟s inquiry, said the house was not for sale. Compton nonetheless agreed to let them come inside to look at the house. According to Westervelt, defendant saw a rifle in a bedroom, and he and Compton proceeded to talk about Compton‟s gun collection for approximately 20 minutes. Compton showed defendant several other rifles. After staying about 45 minutes inside Compton‟s house, defendant, Westervelt, and her children left. Defendant brought Westervelt back to Compton‟s house approximately one week later to look at the backyard. *8 Defendant approached from an adjacent driveway and looked over the fence into Compton‟s yard.
Defendant eventually purchased a house in a different part of Bakersfield, and he, Westervelt, and her children moved into the house in October 1992. Westervelt and her children moved out in April 1993, and she did not have any contact with defendant for several months. On June 29, 1993, defendant was arrested and jailed on unrelated charges and he contacted Westervelt for assistance in helping him obtain bail. Defendant was released on bail on July 2; Compton was killed five days later.
At the end of July defendant agreed to stay away from his house and moved into a rental cottage. 6 He asked Westervelt to move some items out of his house for him, including two video cameras. She had not seen the cameras before and asked defendant where he had acquired them. He said he had purchased them at a bargain sale. Defendant told her to take the cameras and use them, so she stored them in her apartment. On her final visit to defendant‟s house, Westervelt, as defendant had requested, left the burglar alarm off and one of the exterior doors unlocked.
On August 10, 1993, Westervelt accompanied defendant to a place where he shot several handguns at bottles and cans. Westervelt had never seen defendant 6 Defendant‟s arrest stemmed from accusations he had molested his neighbor‟s daughter. His agreement to stay away from his house, the court proceedings related to defendant‟s alibi defense, and the prison sentence he began serving in August 1993, which are discussed below, were related to the molestation charges. In the guilt phase of the present case, the jury was not told any of the specifics of the molestation charges and proceedings, and defendant was simply referred to as being “in custody.”
with those guns before. Defendant told her he had bought them through newspaper advertisements.
As a result of his arrest for molestation at the end of June, defendant was scheduled to go into custody on August 12, 1993. In the days leading up to that date, defendant repeatedly asked Westervelt to store a number of firearms for him, but she refused and eventually suggested he ask Brian Ray to store the guns. Defendant and Westervelt arranged to meet Ray at a friend‟s house. Defendant parked in the garage, and he, Ray, and Ray‟s friend Dane removed more than 10 firearms from the trunk of defendant‟s car and proceeded to clean them. Defendant, however, did not leave the guns with Ray at that time because he was afraid something would happen to them. When Westervelt continued to refuse to store the guns, however, defendant eventually telephoned Ray and asked if he would store them. Defendant told Westervelt that Ray had agreed to store the firearms.
Westervelt later gave the police several items she said belonged to defendant, including the two video cameras. The serial numbers on the video cameras matched the serial numbers on the empty boxes found in Compton‟s house, and they contained videotapes with footage of Compton. She also turned over several letters defendant had written to her while he was in custody. In the letters, defendant repeatedly referred to his “books,” which they had agreed would serve as a code for the firearms Ray was storing. Defendant primarily expressed his concern that nothing happen to his “books” and that they should be “preserved in time” “like mummies in an Egyptian tomb.” At some point, Westervelt told defendant that an investigator had come to defendant‟s mother‟s house. Defendant‟s letters thereafter contained various statements that appeared to be purposefully vague or misleading regarding his not having possessed any firearms or video cameras, or having looked for a house in his mother‟s neighborhood. In *10 addition, defendant now told Westervelt that the “accountant” (the keeper of his “books”) “needs to clean house.” In another instance of a possible attempt to destroy evidence related to Compton‟s murder, defendant told Westervelt to spend the coins he had stored in a jar at his mother‟s house. Westervelt had never seen such a jar of coins when she was living with defendant.
Defendant‟s sister subsequently gave the police a jar of coins that had been at defendant‟s mother‟s house, and a Masons‟ ring that had been inside defendant‟s filing cabinet. The ring corresponded to the rank that Compton‟s deceased father had obtained within the Masons.
Karen Lehman, who was Brian Ray‟s sister, testified that in June 1993, defendant asked her to stay at his house from time to time to help prevent it from being vandalized. She thereafter spent some nights at the house, and on a few occasions she and defendant had sexual intercourse. On or shortly before July 4, 1993, Lehman asked defendant about his plans for the Independence Day holiday, and he told her he was planning to check in on a friend who was a sick, elderly man—either 72 or 76 years old—who lived on Holtby Road near defendant‟s mother‟s house.
Around July 8 or 9 (i.e., a day or two after the murder), defendant asked Lehman if he could store some items in the trunk of her car. When she asked why he needed her to store the items, defendant said it was because he was being “discriminated against.” Lehman agreed, and after placing the items (which Lehman did not see) in the trunk, defendant had Lehman lock her car inside a garage. A few days later, Lehman told defendant she needed to use her car, so they drove the car to defendant‟s house. He removed the items from the trunk and took them inside. During a subsequent visit to defendant‟s house, Lehman saw more than 20 firearms in his bedroom. Defendant told her he had inherited some of them from his father and had purchased others through newspaper *11 advertisements. Defendant became intoxicated and threatened Lehman, saying he would harm her if she told anyone about the guns and he could arrange for someone else to harm her if he was unable to do it himself.
Robert Rowland, a convicted felon who had spent most of his adult life in prison, testified he was incarcerated with defendant in a correctional facility around the end of 1993. Defendant told him about killing an elderly man for his guns. Defendant mentioned a number of different types of guns and specifically listed some that were consistent with firearms that belonged to Compton and were recovered from Brian Ray. Defendant also told Rowland he had given the guns to someone and that person was “snitching on him.” After telling the authorities about defendant‟s statements, Rowland was transferred to another institution. While at that institution, another inmate attempted to cut Rowland‟s throat, resulting in an injury requiring 12 stitches. Although Rowland initially did not want anything in return for testifying about what defendant had told him, after he was attacked he did not want to testify against defendant until the prosecutor agreed to request that prison authorities transfer him to an out-of-state facility.
Evidence regarding the prior-prison-term enhancement allegation under section 667.5, subdivision (b) was presented in a bifurcated proceeding after the jury reached its verdicts on the substantive charges. The prosecution introduced certified records showing that defendant had been convicted of possession of cocaine in 1987 and, after a revocation of his parole, had been released from prison on March 6, 1990, within five years of the murder.
2. Defense Evidence The defense evidence centered on defendant‟s presence at a court proceeding on the morning of July 7, 1993 (the morning the evidence established Compton was murdered), when defendant‟s proceeding concluded, and whether it *12 was possible for defendant to have committed the murder that morning. 7 Defendant undisputedly was in court that morning seeking return of his bail bond premium in his molestation case. The reporter‟s transcript of the proceeding and various witnesses—including defendant‟s mother, his defense attorney, the prosecutor, and the courtroom bailiff—verified this. Telephone records and other testimony also indicated someone had placed a telephone call from defendant‟s house to his bail bondsman at approximately 11:50 that morning. The evidence and testimony did not, however, conclusively establish when defendant‟s court proceeding concluded. Based on the witness testimony and the defense attorney‟s notes from the other court proceeding he was involved in that day, defendant‟s court proceeding could have been completed as early as within a few minutes after 10:30 a.m., or as late as a few minutes before 10:55 a.m. If it was the former, there would have been sufficient (but not excessive) time for defendant and his mother to walk from the courthouse to his mother‟s car, which was parked at the defense attorney‟s nearby office, for defendant to drive them to his mother‟s house, and then for defendant to drive to the victim‟s house (arriving before Compton was to leave for his doctor‟s appointment and, presumably, before the telephone call Compton‟s friend made to him at 11:05 a.m.) and thereafter to commit the robbery and murder, leaving defendant enough time to return home to make the telephone call to his bail bondsman at 11:50 a.m. If defendant‟s court proceeding concluded closer to the later end of the range (i.e., 10:55 a.m.), it would have been exceedingly difficult, if not impossible, for defendant to have committed the murder.
7 Because the jury necessarily rejected the alibi defense, we provide only an abbreviated recitation of the supporting evidence.
Defendant‟s mother also testified she believed that, after arriving back at her house from court that morning, defendant remained there until 11:30 a.m. or noon, while he ate a sandwich and had a drink. She admitted, however (and other witnesses confirmed), that at various times before trial she had told different people she did not have a good memory of the events of that morning, including even whether she had attended court with defendant. Defendant had tried to convince her they were in court all day on July 7, 1993, but she knew this was incorrect because she had attended a birthday party for another of her sons on that day.
Darren Howard and Alfred Stone testified they each sold a firearm that the police subsequently seized from Brian Ray. Howard thought defendant might have been the person who purchased his rifle. Stone did not remember the person he had sold his rifle to, but defendant had a copy of the advertisement Stone had placed in the local newspaper. Beverly Westervelt testified defendant routinely kept significant amounts of cash on hand and often purchased items, including large items such as a used car, with cash. 8
Vaughn Lehman testified he had been married to Karen Lehman for 22 years before their divorce and had known Brian Ray for approximately 25 years. In his opinion, both of them had bad reputations in the community for truth and veracity.
8 Following an objection by the prosecution, the trial court excluded proffered testimony to the effect that defendant had told Westervelt and his friend Dutler Dauwalder he had purchased Compton‟s firearms and other belongings from a person staying in a house across the street from defendant‟s mother‟s house. Defendant‟s challenge to the trial court‟s ruling is discussed, post , in part I.B.4.
B. Issues
1
. Defendant’s Mental Competence
At a number of points in the pretrial and trial proceedings, questions arose
concerning defendant‟s mental competence to stand trial. (See § 1367, subd. (a)
[“A person cannot be tried or adjudged to punishment while that person is
mentally incompetent.”];
Pate v. Robinson
(1966)
a. Background Throughout the proceedings in the trial court, defendant generally had difficult relationships with the attorneys appointed to represent and assist him. Indeed, defendant went through five attorneys—and represented himself for a period of time—before settling on the two attorneys who eventually represented him during the trial. Even those two attorneys, however, did not enjoy a particularly amicable relationship with defendant, as he continually expressed disagreement and dissatisfaction with them, to the point where, during his own counsel‟s closing argument at the penalty phase, defendant‟s vocal interruptions became so disruptive that the trial court ordered him removed from the courtroom. Defendant‟s outbursts during the proceedings were not directed at defense counsel only; he also consistently interrupted the court, the prosecutor, and various witnesses (both defense and prosecution). Defendant‟s behavior led his attorneys *15 on a number of occasions to express doubts concerning his mental competence to proceed. Although the trial court twice suspended the proceedings to have defendant examined by experts for competence, it found defendant competent both times. At other times, the court disagreed that a doubt existed concerning defendant‟s ability to understand the proceedings and assist his attorneys and declined to suspend the proceedings for a psychiatric examination of defendant.
Defendant‟s first appointed attorney was Stan Simrin, but the trial court granted Simrin leave to withdraw because defendant was unwilling to waive the statutory deadline for trial to commence (see § 1382, subd. (a)(2)) and Simrin could not competently prepare for trial within that time period. Defendant‟s second attorney, Donnalee Huffman, withdrew for the same reason only days after she was appointed. On March 3, 1994, 10 days after he was appointed, defendant‟s third attorney, Edward Brown, filed a “Motion for PC 1368(b) and PC 1368(c),” requesting that the trial court order a mental competency hearing for defendant and suspend the proceedings until he was determined to be competent. The motion did not provide any details concerning counsel‟s reasons for doubting defendant‟s competence. Nevertheless, on March 7, 1994, the trial court granted the motion, suspended the trial proceedings, and arranged for defendant to be interviewed by a psychiatrist. In response to the court‟s order, defendant questioned how the court could “suspend criminal proceeding[s] without giving [him] an opportunity to speak,” and stated, “Cancel the doctor‟s appointment. I don‟t need a doctor. I refuse.” 9
9 In a declaration accompanying a motion for a continuance that was filed after the trial court suspended the proceedings, Attorney Brown stated he had filed the motion regarding his client‟s competence because of defendant‟s “unwillingness to cooperate and his demand to go to trial within the statutory
(footnote continued on next page)
*16
As promised, when the psychiatrist designated to evaluate him, Dr. Richard
Burdick, arrived for the interview, defendant refused to answer any questions.
Defendant informed Dr. Burdick that he was seeking to have his attorney removed
by “initiat[ing] a
Marsden
” (
People v. Marsden
(1970)
At the competency hearing before the trial court on March 28, 1994, Attorney Brown and the prosecutor both stated they would submit the matter of defendant‟s competence based on Dr. Burdick‟s report, and the trial court, without further discussion, found defendant competent to stand trial.
Immediately after that finding, defendant personally filed a motion to recuse the judge under Code of Civil Procedure section 170.6, which the court granted. Defendant‟s Marsden motion was heard later that morning before a different judge. In a long statement to the court, defendant accused Attorney (footnote continued from previous page)
period runs afoul of sound reason,” and therefore counsel sought to resolve whether there was a “clinical reason” for defendant‟s behavior.
Brown of failing to take any steps to develop a defense to the charges. Brown, in contrast, stated defendant had been hostile and uncooperative from the beginning of the appointment. The court, in denying the motion to relieve counsel, stated that in its view “this is more of an issue of cooperation between counsel and the defendant[, a]nd the court is concluding very quickly that the defendant is not cooperating with his counsel. That doesn‟t mean that he is entitled to the appointment of other counsel and [to] keep going through a number of counsel until such time as he is going to cooperate.” Later that day, Brown requested the appointment of a second attorney to represent defendant due to the complexity of the case and the circumstance that, because of “the client‟s attitude,” in counsel‟s view “it‟s going to take at least two of us to handle this situation.” The court agreed to appoint James Sorena as second counsel.
Defendant next filed a motion to represent himself under
Faretta v.
California
(1975)
At this point, Attorneys Brown and Sorena again asked the trial court to declare a doubt regarding defendant‟s mental competence to proceed. They observed that the first competency hearing might not have complied with the statutory requirements because, despite defendant‟s apparent view he was not incompetent, the court had appointed only one expert to assess his competence. (See § 1369, subd. (a) [“In any case where the defendant or the defendant‟s counsel informs the court that the defendant is not seeking a finding of mental incompetence, the court shall appoint two psychiatrists, licensed psychologists, or a combination thereof.”].) Further, in counsel‟s view, defendant‟s courtroom statements and behavior indicated he was not mentally competent to proceed. The trial court disagreed that defendant‟s competence was in doubt, stating it believed defendant was able to communicate and cooperate with counsel in a rational manner if he chose to do so.
At a subsequent hearing on April 11, 1994, the trial court, after a very lengthy discussion, granted defendant‟s Faretta motion and relieved Attorneys Brown and Sorena. Two days later, at defendant‟s request, Attorney Ralph McKnight, Jr., was appointed as advisory counsel for defendant. On June 29, 1994, Attorney McKnight, although serving only as advisory counsel, filed a motion requesting that the trial court terminate defendant‟s self-representation due to his asserted mental incompetence. Included with the motion were declarations from McKnight and defendant‟s former attorney, Sorena. McKnight declared that in his view, based on the eight times he had met with defendant, defendant was “demonstrating signs of serious mental instability” and “appears to be unable to comprehend and appreciate either the substantive or the procedural law which is applicable in this matter.” According to McKnight, defendant‟s “prior waiver of *19 counsel appears to be a direct outgrowth of his delusion that the justice system in general, and defense attorneys in particular, are in league against him in an all pervasive conspiracy. He also appears to have a belief in his own super competence, which causes [him] to believe that he alone has the correct interpretation of the law. These delusions render him incompetent to knowingly and intelligently appreciate the difficulties he will face representing himself and what is at stake.” McKnight reported that, as was the case with defendant‟s prior attorneys, defendant “refuses to cooperate with myself as his advisory counsel, refuses to accept advice from me, and remains hostile, accusatory and suspicious.” Further, defendant had repeatedly asked counsel to make various motions or take other actions which were “impossible, impractical or inconsistent,” and then cited counsel‟s refusal to follow defendant‟s orders as further proof counsel was “part of the conspiracy against him.”
Attorney Sorena‟s declaration echoed these concerns. In their first meeting, defendant could not focus his discussion, was very suspicious of Sorena, and by the conclusion of the 45-minute meeting was convinced that Sorena was “part of a pervasive conspiracy against him.” According to Sorena, defendant believed “all members of the justice system were in collusion to execute him, including the court reporters who falsified the transcripts of prior hearings.” Based upon Sorena‟s contact with another criminal defendant who had been diagnosed with paranoid and delusional disorders, Sorena “was convinced after my interview with [defendant] that he was genuinely delusional to the point where his ability to assist counsel was in substantial doubt.”
On July 7, 1994, the trial court, based on Attorney McKnight‟s motion and over defendant‟s objections, again suspended the proceedings for an assessment of defendant‟s mental competence. The court, however, permitted defendant to *20 continue to represent himself, including choosing one of the experts who would interview him.
The two resulting medical opinions concerning defendant‟s competence presented to the court in written reports came to conflicting conclusions. The expert chosen by the court, Psychiatrist Luis Velosa, concluded defendant was “suffering from a psychiatric disorder which impairs his thinking process . . . best classified as bipolar disorder (manic type) or a paranoid disorder. The defendant at present is exhibiting psychotic symptoms characterized by a thought disorder in which [he] experiences racing thoughts, looseness of associations, rambling of thoughts, sometimes without any logical connection. In addition, the defendant experiences paranoid thinking, persecutory delusions, [and] a false belief that there is a conspiracy against him.” Dr. Velosa concluded that defendant “is at present able to understand the nature and purpose of the proceedings taken against him. However, because of his psychiatric symptoms, the defendant at present is unable to cooperate in a rational manner with counsel in presenting a defense. Furthermore, despite . . . the fact that the defendant has a vast knowledge of the legal system and legal proceedings, because of his psychiatric symptoms, [he] is not able to represent himself.” Dr. Velosa also noted that defendant‟s judgment was “impaired and he [had] no insight into his mental disorder.”
The expert chosen by defendant, Psychiatrist Sakrapatna Manohara, found defendant to be “generally cooperative but . . . quite manipulative.” Defendant‟s speech was “coherent but appeared to be circumstantial,” and he was “blaming all his problems on the system.” Dr. Manohara found defendant “did not appear to be really delusional although he was highly mistrustful of the system and the attorneys.” According to Dr. Manohara, defendant “performed well” in tests designed to assess his memory and concentration, and he “showed appropriate affect to thought content.” Defendant exhibited “some anger and frustration” at *21 being “railroaded” and believed he needed to “let go and let God take care of things.” In Dr. Manohara‟s opinion, defendant had a “grandiose sense of self importance,” tended to “exaggerate achievements and talents,” spoke in a manner that was “excessively impressionistic and lacking in detail,” and believed “his problems [were] unique and [could] only be understood by other special people.” Defendant did not have a “clear-cut psychotic disorder,” but did appear to be “excessively mistrustful of the system,” and exhibited a narcissistic personality disorder. Dr. Manohara concluded that defendant‟s “personality disorder makes it difficult to work with him as an attorney but . . . he is competent to stand trial. However, he is not competent to represent himself because of his lack of objectivity and his grandiose sense of self importance and his tendency to be circumstantial with a sense of entitlement. He may over-react to criticism with feelings of rage.”
The trial court held a hearing concerning defendant‟s mental competence on July 28, 1994. In summarizing the doctors‟ reports, the trial court noted Dr. Manohara had found defendant competent to stand trial, while “Dr. Velosa, although he reflects what I would suggest to be some reservation in that regard, he does indicate that [defendant was] able to understand the nature and purpose of the proceedings.” Defendant, who continued to represent himself at the hearing, insisted he was competent to proceed and demanded a jury trial on the issue of his mental competence. The prosecutor, also apparently desiring a finding defendant was competent, suggested defendant waive his right to a jury trial and agree to submit the matter on the experts‟ reports if the trial court was “inclined to find that [defendant] is competent to stand trial, which I believe is what he wishes.” The trial court then asked defendant whether he would “waive a jury trial on that issue so we can get on with the show.” Defendant agreed to do so, and the court proceeded to find defendant competent. Thereafter, Attorney McKnight, who had *22 not participated in the hearing, asked to be relieved as advisory counsel based on the complete breakdown of his relationship with defendant. The trial court granted the request.
Although the trial court had found defendant competent for purposes of continuing with the proceedings, the court nonetheless expressed concerns regarding whether defendant was competent to waive his right to counsel and to represent himself, and on August 2, 1994, it held a hearing to address that issue. At the hearing, defendant continued to represent himself. After the three doctors (Drs. Burdick, Velosa, and Manohara) who previously had evaluated defendant‟s mental competence testified, the trial court found defendant‟s waiver of the right to counsel was valid. In the court‟s view, defendant‟s difficulties in focusing and effectively communicating were the result of his excited state and his lack of experience in courtroom proceedings. The court said it was “sure much of that will settle down when you‟re in a trial situation, and I don‟t think that that in any way would indicate to this Court that you cannot make a knowledgeable and intelligent waiver as to your right to represent yourself.” The court then appointed Attorney James Gillis as advisory counsel for defendant.
Paralleling the experience of defendant‟s prior attorneys, Attorney Gillis, on September 12, 1994, filed a motion to terminate defendant‟s self-representation because defendant was not mentally competent. In the declarations submitted with the motion, Gillis recounted defendant‟s delusions concerning the conspiracy against him, which were negatively affecting counsel‟s ability to assist him and defendant‟s own ability to prepare a defense. At the hearing on the motion, defendant stated he would voluntarily waive his right to represent himself if the court would agree to appoint Attorney William Dougherty as lead counsel, with Gillis perhaps continuing as cocounsel. Defendant would accept the appointment of Dougherty because he was an attorney who primarily practiced in a different *23 county. The trial court appointed Dougherty and Gillis as suggested, and the case proceeded to trial.
Although Dougherty and Gillis continued to represent defendant through the trial, their relationship with defendant was not an easy one. As the trial progressed, defendant became more and more disruptive. He made faces and comments during witnesses‟ testimony and the attorneys‟ arguments. He repeatedly professed his innocence and proclaimed his belief there was a far- reaching conspiracy against him that involved altering the transcripts of the court proceedings he had attended on the day of the murder and the preliminary examination in the present case. The trial court at times expressed its view that it appeared defendant could not control himself and his outbursts in front of the jury likely were detrimental to his defense. When the guilt phase verdict was announced, defendant shouted that the case against him was a fraud and he was innocent. His reaction was so riotous that the jury was cleared from the courtroom, and after a several-minute tirade by defendant, the trial court threatened to order defendant gagged if he could not control himself. After a discussion with defense counsel, defendant agreed to remain silent for the remainder of the reading of the verdict.
Before the penalty phase began, counsel filed yet another motion to suspend the proceedings due to defendant‟s asserted mental incompetence. At the next court proceeding, counsel stated defendant had progressively become more and more delusional and paranoid regarding the conspiracy against him, and at that point defendant not only could no longer assist counsel in a rational manner but was actually undermining the defense efforts. The prosecutor, however, expressed the view that defendant was a “master manipulator” and, as the trial court had consistently found in the past, was able to cooperate with counsel but, for his own reasons, was choosing not to do so. The trial court refused to declare a *24 doubt concerning defendant‟s mental competence, stating it was “fully convinced that [defendant] has a mental capacity—he may not have a mental discipline, but he‟s got a mental capacity to be fully aware of what‟s happening, what‟s going on with what the procedures are.” The court noted that, rather than there being a breakdown in communication between defendant and counsel, it appeared defendant was “constantly talking to his attorneys.” The court permitted defendant to read a statement into the record in which he again made his allegations of fraud and conspiracy. Later that day, during a conference outside the presence of the jury, the trial court reiterated that “the court does not have any doubt as to [defendant‟s] competency to stand trial in this matter.”
When defendant expressed his intention to testify at the penalty phase, despite defense counsel‟s fervent advice not to do so, the trial court attempted to obtain an on-the-record waiver of defendant‟s right to remain silent. Defendant, however, would not expressly agree to make such a waiver, and the court ultimately stated that, in its view, defendant‟s testifying would be “very detrimental” to his interests because “he can‟t seem to discipline his thought processes, [and] respond to the simple questions I‟m asking him about his right to remain silent.” Defense counsel reminded the court they believed defendant was not mentally competent to proceed, but the court stated it believed defendant was merely “in a position of denial” regarding the crimes. The trial court ultimately found that defendant was validly waiving his right to remain silent.
As defense counsel predicted, defendant‟s penalty phase testimony was unhelpful. His testimony in general was rambling, and the court and his attorneys repeatedly admonished him to answer the questions that were asked. He testified the evidence presented at the guilt phase to support his alibi defense was entirely fraudulent, and he actually had been in a different courtroom for the entire day of the murder. During closing arguments, defendant became more and more *25 boisterous, repeatedly interrupting both the prosecutor and defense counsel, to the point where, during defense counsel‟s final argument, the trial court ordered defendant removed from the courtroom for the remainder of the argument. Defendant thereafter watched, from another courtroom, a video feed of the rest of counsel‟s argument. The trial court, anticipating continued disruptive behavior, instructed security personnel to gag defendant if he continued to have outbursts that were likely to disrupt any proceedings in the courthouse.
The next morning, defense counsel, citing the events of the previous day, again requested that the trial court suspend the proceedings in order to evaluate defendant‟s mental competence. The trial court again expressed its view that defendant was voluntarily choosing not to cooperate with counsel and merely had a bad “attitude.” The court declared, “There is no doubt in this Court‟s mind as to the competence of [defendant], none whatsoever.”
At the hearing on defendant‟s motion for a new trial, the automatic application to modify the verdict, and the court‟s imposition of the sentence, defendant continued to interrupt the proceedings. The court ultimately ordered defendant gagged and restrained in his chair. Defendant nonetheless was able to struggle free of the gag, at which point he requested a Marsden hearing. Defendant was again gagged, and the sentencing proceeding continued. The court ultimately allowed defendant to make a final statement in which he restated his allegations of fraud and conspiracy.
b. Failure to Appoint Counsel for Defendant During Second Section 1368 Proceedings
As recounted above, defendant‟s counsel moved five different times during trial to have the trial court declare a doubt about defendant‟s mental competence to stand trial. The court granted two of the motions—the first on March 7, 1994, and the second on July 7, 1994—held hearings both times, and twice concluded *26 defendant was not incompetent. On appeal, defendant makes a number of claims related to his five motions and two competency hearings. One such claim is meritorious: the trial court erred in allowing defendant to represent himself during the competency proceedings following the trial court‟s second declaration of doubt under section 1368. We conclude this error constitutes a reversible miscarriage of justice and the appropriate remedy at this time is to remand to the trial court to allow it to conduct a retrospective competency hearing, if feasible.
i.
Standards of mental competence
The United States Supreme Court has “repeatedly and consistently
recognized that „the criminal trial of an incompetent defendant violates due
process.‟ ” (
Cooper v. Oklahoma
(1996)
The applicable state statutes essentially parallel the state and federal constitutional directives. Section 1367, subdivision (a) provides: “A person cannot be tried or adjudged to punishment while that person is mentally incompetent. A defendant is mentally incompetent for purposes of this chapter if, as a result of mental disorder or developmental disability, the defendant is unable *27 to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.”
Section 1368 provides in pertinent part: “(a) If, during the pendency of an action and prior to judgment, a doubt arises in the mind of the judge as to the mental competence of the defendant, he or she shall state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent. If the defendant is not represented by counsel, the court shall appoint counsel. At the request of the defendant or his or her counsel or upon its own motion, the court shall recess the proceedings for as long as may be reasonably necessary to permit counsel to confer with the defendant and to form an opinion as to the mental competence of the defendant at that point in time. [¶] (b) If counsel informs the court that he or she believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendant‟s mental competence is to be determined in a hearing which is held pursuant to Sections 1368.1 and 1369. If counsel informs the court that he or she believes the defendant is mentally competent, the court may nevertheless order a hearing. Any hearing shall be held in the superior court.”
As we stated in
People v. Welch
(1999)
ii. Self-representation at competency proceedings is improper At the time the trial court declared a doubt regarding defendant‟s competence to stand trial on July 7, 1994—thereby triggering the second *28 competency hearing—defendant had been representing himself. Did the trial court err by allowing defendant to represent himself during the resulting competency proceedings? 10 That the court violated state statutory law by failing to appoint counsel is beyond question. The plain language of section 1368, specifically addressing the procedures in criminal competency proceedings, provides that when the trial court states on the record that a doubt exists concerning the defendant‟s mental competence, “[ i ] f the defendant is not represented by counsel, the court shall appoint counsel .” (§ 1368, subd. (a), italics added.) Nothing could be clearer.
The People raise three ultimately unpersuasive counterarguments to the
position that the trial court erred under section 1368 by failing to appoint counsel
to represent defendant during the competency proceedings. They first contend that
when a doubt about a self-represented defendant‟s competence is declared, section
1368 requires the appointment of counsel merely to allow the trial court to receive
preliminary argument—in advance of the decision whether to suspend the trial—
as to whether the defendant is competent or not, but does not require legal
representation of the defendant throughout any subsequent competency
proceedings. This interpretation of section 1368 is meritless, for the plain
meaning of the statutory language admits no such limitation. “ „Where the words
of the statute are clear, we may not add to or alter them to accomplish a purpose
that does not appear on the face of the statute or from its legislative history.‟ ” (
In
re Jennings
(2004)
10
We recently reserved this question in a case in which the defendant was
acting not as his own attorney but as cocounsel with an attorney. (
People v.
D’Arcy
(2010)
Moreover, section 1369, which sets forth the procedures for the competency hearing, indicates the Legislature‟s intention that a criminal defendant be represented by counsel at a competency hearing. That section provides: “ The counsel for the defendant shall offer evidence in support of the allegation of mental incompetence.” (§ 1369, subd. (b)(1), italics added.) The Legislature thus contemplated a defendant would be represented by counsel throughout the competency proceedings.
The People‟s second counterargument fares no better. Although section
1368 requires the trial court to “appoint counsel” if “the defendant is not
represented by counsel,” the People contend the appointment of Attorney
McKnight as advisory counsel for the competency proceedings satisfied the
statutory requirement. We disagree: Attorneys serving in an advisory or standby
capacity do not “represent” the defendant, which is the clear mandate of the
statute. (See
People v. Hamilton
(1989)
The instant case serves to illustrate the inadequacy of the presence of mere
advisory counsel. Although it was McKnight‟s motion that gave rise to the
competency proceedings, he had no opportunity to address the court when
defendant‟s competence was discussed at the July 28, 1994, hearing. His views
regarding the experts‟ reports, which reached opposing conclusions concerning
defendant‟s competence to stand trial, and the prosecution‟s suggestion that
*30
defendant waive a jury trial and submit the matter with the understanding the trial
court would find him competent, were never aired. (Cf.
Wise v. Bowersox
(8th
Cir. 1998)
Third, we reject the People‟s novel assertion that section 1404, which
specifies that errors in failing to comply with the provisions of the Penal Code do
not invalidate the proceedings unless the defendant was prejudiced by the error,
excuses a trial court from following the statutory requirements. Section 1404 is a
harmless error rule to be applied in
the review
of a judgment (see
People v. Cahill
(1993)
The People also rely on decisions of the federal courts of appeals that found
no error occurred when the trial courts in those cases allowed the defendants to
represent themselves while the court considered their mental competence.
Reliance on those authorities is misplaced because, unlike in the present case,
those cases (
Porter v. Attorney General
(11th Cir. 2008)
To the extent the People contend defendant was properly permitted to
circumvent the statutory requirement by purporting to waive representation by
counsel, we disagree. First, no language in the statutes authorizes such a waiver.
Second, as we have held for decades, neither the state constitutional right to the
assistance of counsel in criminal cases nor the general right to due process
guarantees a criminal defendant‟s right to waive counsel; accordingly, defendant
had no right to self-representation under the California Constitution that could
have overridden the statutory requirement of legal representation in competency
proceedings. (
People v. Taylor
(2009)
In
Sharp
, this court concluded that neither the state nor the federal
Constitution created a constitutional right of a criminal defendant to self-
representation. (
People v. Sharp
,
supra
, 7 Cal.3d at pp. 457-458.) In
Faretta
, the
high court, of course, overruled our interpretation of the federal constitutional
provision. (
Faretta
,
supra
,
In
Indiana v. Edwards
(2008)
Recently, in
People v. Johnson
(2012)
As clarified in Edwards , the high court‟s decisions in this area establish that (1) the federal constitutional right to the assistance of counsel in criminal cases includes the right to waive the assistance of counsel ( Faretta ); (2) in determining the validity of a purported waiver of the right to counsel, the federal Constitution requires no more than that the choice be made voluntarily and intelligently by a defendant who is found to be competent under the Dusky standard ( Godinez v. Moran ); and (3) states may in some circumstances apply additional restrictions on the defendant‟s exercise of the right to self-representation without violating Faretta ( Edwards ). Consequently, even assuming the federal Constitution might otherwise permit a criminal defendant to waive the assistance of counsel at mental competency proceedings, we believe that, in light of Edwards , the California statutory requirement of representation by counsel during competency proceedings does not violate the defendant‟s Sixth Amendment rights.
In reaching its conclusion in
Edwards
that the states may validly impose a
mental-illness-related limitation on the right to self-representation, the high court
acknowledged that allowing a mentally ill defendant to represent himself or
herself would be “at least as likely to prove humiliating as ennobling” to the
defendant‟s personal “ „[d]ignity‟ ” and “ „autonomy,‟ ” the interests that form the
basis of the right to self-representation. (
Edwards
,
supra
,
As an initial matter, we observe that the issue to be resolved in section 1368
proceedings is whether the defendant meets the
minimum
standard of mental
competence to stand trial under
Dusky
, an issue that would call into question, as
well, the defendant‟s competence to validly waive the right to counsel were he or
she attempting to make such a waiver at that time.
11
For the same reason (i.e., an
11
A number of courts have so concluded. (See
U.S. v. Frazier-El
(4th Cir.
2000)
apparent lack of mental competence under
Dusky
), we reject any suggestion that,
by failing to object, a defendant who has been permitted to continue to represent
himself or herself during competency proceedings has forfeited or waived a claim
of error under the statute. (Cf.
Medina v. California
(1992)
Further, in our view, if, as transpired in this case, a criminal defendant
whose mental competence is in question is permitted self-representation and to
maintain he or she is competent to stand trial, a breakdown occurs in the process
of meaningful adversarial testing central to our system of justice. (See
United
States v. Cronic
(1984)
That an attorney representing defendant might similarly have chosen to
submit the question on the experts‟ reports, waive a jury, and forgo argument does
*36
not change the analysis. In such cases, the trial court, as well as other observers of
the proceedings, may presume such actions are reasonable tactical choices made
by trained counsel based on the evidence. The decision of a possibly incompetent
defendant not to contest the issue of his or her own competence is entitled to no
such credit. Indeed, such a decision ought to be considered inherently suspect,
especially when, as in the instant case, the evidence before the court is in conflict
regarding the defendant‟s mental competence. (Cf.
People v. Samuel
(1981) 29
Cal.3d 489, 495 [“[I]f counsel represents a defendant as to whose competence the
judge has declared a doubt sufficient to require a section 1368 hearing, he should
not be compelled to entrust key decisions about fundamental matters to his client‟s
apparently defective judgment.”];
Bundy v. Dugger
(11th Cir. 1987)
In addition, the primary reasons underlying
Faretta
‟s recognition of the
right to waive counsel—the fundamental right to autonomy and the circumstance
*37
that it is “[t]he defendant, and not his lawyer or the State, [who] will bear the
personal consequences of a conviction” (
Faretta
,
supra
,
Although we recognize, as the People assert, that the trial court at the time of trial might have believed it had been placed between a rock (§ 1368) and a hard place ( Faretta ), we nonetheless conclude the court‟s failure to appoint counsel to represent defendant during the second competency proceedings violated *38 defendant‟s statutory rights. 12 As discussed post , we conclude the statutory error is reversible, subject to the initial remedy of a remand for a retrospective competency hearing. Because defendant would be entitled to no greater remedy were we to conclude that the failure to appoint counsel to represent him during the competency proceedings constituted either state or federal constitutional error, we decline to decide whether defendant‟s constitutional rights were also violated.
iii.
Failure to appoint counsel constituted reversible error
Under article VI, section 13 of our state Constitution, trial error does not
merit reversal of a judgment unless “the error complained of has resulted in a
miscarriage of justice.”
13
Typically, a defendant who has established error under
state law must demonstrate there is a reasonable probability that in the absence of
the error he or she would have obtained a more favorable result. (
People v.
Weaver
(2001)
13 Article VI, section 13 of the state Constitution provides in full: “No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”
of the evidence contained in the record in a particular case.” (
People v. Cahill
,
supra
,
With respect to violations of a defendant‟s Sixth Amendment right to
counsel at trial, the United States Supreme Court has held that “when a defendant
is deprived of the presence and assistance of his attorney, either throughout the
prosecution or during a critical stage in, at least, the prosecution of a capital
offense, reversal is automatic.” (
Holloway v. Arkansas
(1978)
In limited situations, however, where the denial of counsel was for a
discrete time or hearing only, the high court has recognized that the rule of
automatic reversal is inappropriate. In such circumstances, the denial of the right
to counsel, even during a critical stage in a capital case, does not require automatic
reversal but is instead subject to harmless error review.
Satterwhite v. Texas
(1988)
The high court reiterated this distinction in Arizona v. Fulminante , explaining that “[t]he common thread connecting [the circumstances in which harmless error review is to be applied] is that each involved „trial error‟—error which occurred during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt.” ( Arizona v. Fulminante , supra , 499 U.S. at pp. 307-308.) The court then contrasted such “trial errors” with those “constitutional deprivations [constituting *41 a] structural defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself. „Without these basic protections, a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair.‟ ” ( Id. at p. 310.)
Here, defendant was completely deprived of the assistance of counsel at a
critical stage of the trial proceedings in violation of section 1368. As with a
pervasive Sixth Amendment violation, the statutory violation here cannot be
likened to “trial error” akin to that at issue in
Satterwhite v. Texas
,
supra
, 486 U.S.
at pages 258-259. We cannot simply excise some item of evidence in order to
“make an intelligent judgment” (
id
. at p. 258) about whether the competency
determination might have been affected by the absence of counsel to represent
defendant. There are, in fact, myriad possible strategic choices counsel might
have made that could have affected the outcome, for example, by choosing a
defense expert different from the expert defendant chose, asking for a third expert
to break the tie between the two experts already consulted or, most notably,
declining to submit the matter for the trial court‟s determination based on the
written reports and instead demanding defendant‟s competence be tried to a jury.
(Cf.
Rose v. Clark
(1986)
We also reject the People‟s assertion that subsequent competency-related proceedings the trial court conducted rendered the error harmless. As we have explained, allowing defendant to represent himself in the competency proceedings was akin to structural error, rendering the result of the proceedings—the finding that defendant was mentally competent to stand trial—unreliable. But even assuming subsequent proceedings during a trial could in some circumstances remedy this type of error, in this case the trial court‟s actions following the tainted proceedings did not do so. The trial court did not again declare a doubt regarding defendant‟s mental competence, suspend trial proceedings, and initiate formal competency proceedings under the statutes. The People point to the hearing on August 2, 1994, at which the trial court considered whether defendant should be permitted to continue to represent himself, and during which the doctors who had previously examined defendant testified. That hearing, however, was not focused on defendant‟s mental competence to stand trial . In any event, because defendant again represented himself at the hearing (and continued to maintain he was mentally competent), to the extent the hearing shed any light on defendant‟s *43 competence to stand trial, any finding on that subject would have been as unreliable as the tainted section 1368 proceeding.
Accordingly, we conclude the trial court‟s failure to appoint counsel to
represent defendant at the competency proceedings in violation of section 1368
constitutes a reversible miscarriage of justice under article VI, section 13 of our
state Constitution. (Cf.
Holloway v. Arkansas
,
supra
,
iv.
A limited reversal and remand is the appropriate remedy
Having concluded reversible error occurred, we consider what aspect of the
judgment against defendant must be reversed. Must it be the entire judgment,
requiring a new trial of the charges (if defendant presently is competent to stand
trial), or may reversal be limited to the trial court‟s competency finding?
Although we find statutory error only, we believe it appropriate to look to
analogous constitutional precedents in order to answer the question. Thus, with
respect to remedying a violation of a defendant‟s Sixth Amendment right to the
assistance of counsel, the high court provided guidance in
United States v.
Morrison
(1981)
In determining the appropriate remedy in this case, we initially observe what type of error is not involved. This is not a case where we can be sure defendant was tried to conviction while actually mentally incompetent; that is, 14 Section 1260 provides: “The court may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed, and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial and may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances.”
Section 1262 provides in relevant part: “If a judgment against the defendant is reversed, such reversal shall be deemed an order for a new trial, unless the appellate court shall otherwise direct.”
when “as a result of mental disorder or developmental disability, [he was] unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.” (§ 1367, subd. (a).) That type of substantive error clearly would require reversal of the entire judgment.
Nor does the error at issue involve a procedural constitutional due process
violation of the type in which the trial court has failed to hold a hearing despite
sufficient triggering evidence showing the defendant might be mentally
incompetent. (§ 1368;
Pate
,
supra
,
involving Pate error provide a useful starting point for the analysis of whether a complete reversal is mandated or whether a more limited reversal is justified in the instant case.
Pate
error was once generally considered automatically reversible,
requiring a new trial of the charges (were the defendant found competent to stand
trial at that time). In
Pate
, having found the failure to hold a hearing violated the
defendant‟s constitutional rights, the high court specifically rejected a proposal to
remand the case for a retrospective hearing on the defendant‟s competence: “It
has been pressed upon us that it would be sufficient for the state court to hold a
limited hearing as to [the defendant‟s] mental competence at the time he was tried
in 1959. If he were found competent, the judgment against him would stand.
But
we have previously emphasized the difficulty of retrospectively determining an
accused’s competence to stand trial
. [Citation.] The jury would not be able to
observe the subject of their inquiry, and expert witnesses would have to testify
solely from information contained in the printed record.
That
[
the defendant’s
]
hearing would be held six years after the fact aggravates these difficulties
. This
need for concurrent determination distinguishes the present case from
Jackson
v.
Denno
,
This court has treated the failure to comply with section 1368 as also
requiring complete reversal and retrial of the charges, most likely because the
statutory scheme implements the due process guarantee not to be tried while
mentally incompetent. In
People v. Hale
(1988)
At some point, however, courts parsed the language of
Pate
and subsequent
high court decisions addressing the constitutional violation (like
Drope
,
supra
, 420
U.S. 162) and discerned that the problem of remanding for the limited remedy of
conducting solely what has been termed a “retrospective competency hearing” as a
remedy for
Pate
error was not
the nature of the constitutional injury itself
but was
instead the
inherent difficulty
of making a nunc pro tunc determination of the
defendant‟s mental state. Consistent with this emerging view, this court noted in a
1995 opinion that we need not reach the question whether a remand for a
retrospective determination of competence was permissible in the case of
Pate
error. (
People v. Stanley
(1995)
Similarly, in
Moran v. Godinez
(9th Cir. 1995)
People v. Ary
(2004)
(footnote continued on next page)
*49
People v. Young
(2005)
Although defendant appears to concede that a retrospective competency
hearing might in some cases constitute a constitutionally permissible remedy for
the failure to appoint counsel in competency proceedings, he contends that, as in
Pate
and
Dusky
, primarily because of the passage of time the only permissible
remedy in his case is to reverse the entire judgment and remand for a new trial.
(See
Pate
,
supra
, 383 U.S. at pp. 386-387;
Dusky
,
supra
,
procedure was a permissible remedy for Pate error. ( People v. Ary , supra , 51 Cal.4th at pp. 516-517.)
supra , 151 Cal.App.4th at pages 617-618, to order a limited remand in similar circumstances.
First, as we observed above, we cannot be sure defendant in fact was
mentally incompetent to stand trial, which, of course, means he may have been
competent
, and if so there is no infirmity in the judgment against him. An
automatic full reversal with a remand for a new trial on the criminal charges would
impose severe costs on the justice system in remedying a violation that, while
considered a miscarriage of justice in the context of the competency proceedings,
might not have affected the guilt and penalty verdicts. In contrast, if it remains
possible to give defendant that to which he was entitled at trial—a fair and reliable
opportunity to prove his incompetence with the assistance of counsel—a remand
to explore the feasibility of a retrospective hearing would appropriately tailor the
remedy “to the injury suffered from the . . . violation [without] unnecessarily
infring[ing] on competing interests.” (
United States v. Morrison
,
supra
, 449 U.S.
at p. 364.) In other words, if placing defendant in a position comparable to the one
he would have been in had the violation not occurred is possible, and a finding is
made that he did not bear his burden to prove he was incompetent to stand trial,
we would then have no reason to question the fundamental fairness and reliability
of the remainder of the judgment against him. (See
People v. Ary
,
supra
, 51
Cal.4th at pp. 520-521 [in the case of
Pate
error, “[R]equiring a criminal defendant
to prove at a retrospective mental competency hearing that he was incompetent
when tried earlier does not „ “offend[] some principle of justice so rooted in the
traditions and conscience of our people as to be ranked as fundamental.” ‟ ”];
Tate
v. State
(Okla.Crim.App. 1995)
Second, in the circumstances of the error in this case, the “inherent
difficulties” in conducting a nunc pro tunc evaluation of defendant‟s competence
to stand trial are potentially reduced compared to those arising in the case of
Pate
error. Here, despite the error in the manner in which the competency proceedings
were conducted, the subject of defendant‟s mental competence actually was
reviewed at the time of the trial and contemporaneous evidence specifically
addressing that issue presumably still exists. In addition, individuals who formed
opinions on defendant‟s competence based on their observations of his mental
state at that time may be available to testify at a retrospective hearing. In contrast,
in the circumstances of
Pate
error, where there was substantial evidence of
incompetence but no proceedings to develop the record further, there is by
definition a shortcoming in the evidence, and the trier of fact at a retrospective
competency hearing would have to rely on after-the-fact opinions and evidence in
the record (such as the defendant‟s courtroom behavior) that might only
circumstantially assist in determining the defendant‟s mental state at the time of
trial. Although, as the high court observed in
Pate
, the trier of fact at a
retrospective competency hearing “would not be able to observe the subject of [its]
inquiry” (
Pate
,
supra
,
Our discussion regarding whether to order a limited remand in
People v.
Johnson
(2006)
18
We explained the three-step procedure followed in adjudicating a
Batson
claim as follows: “ „First, the defendant must make out a prima facie case “by
showing that the totality of the relevant facts gives rise to an inference of
discriminatory purpose.” [Citation.] Second, once the defendant has made out a
prima facie case, the “burden shifts to the State to explain adequately the racial
exclusion” by offering permissible race-neutral justifications for the strikes.
[Citations.] Third, “[i]f a race-neutral explanation is tendered, the trial court must
then decide . . . whether the opponent of the strike has proved purposeful racial
discrimination.” [Citation.]‟ ” (
People v. Johnson
,
supra
,
This court concluded a limited remand was appropriate under federal law,
rejecting a number of challenges to the propriety of that remedy, in large part
because other courts had undertaken such remedial proceedings, and in doing so
the various shortcomings alleged had not proven to be of great concern. We
pointed out that the high court had concluded only that improper discrimination
“ „
may have occurred
,‟ ” not “that discrimination
did
occur.” (
People v. Johnson
,
supra
,
The circumstances of
Johnson
are analogous to those of the present case in
several important respects. First, we have concluded only that defendant
might
have been
incompetent and was denied a fair opportunity to establish that fact, not
that he
was
incompetent. Second, contemporaneous evidence regarding his mental
competence presumably exists. Third, the passage of time since the trial, while a
significant concern, does not necessarily make it impossible for a fair and reliable
retrospective competency hearing to be held. Accordingly, as in
Johnson
, we see
no reason not to “at least attempt to have the trial court resolve the matter on
remand.” (
People v. Johnson
,
supra
,
v.
The feasibility determination
Before conducting the retrospective competency hearing, the trial court
must determine whether such a hearing will be feasible. What we stated in
People
v. Ary
,
supra
,
competence when tried earlier. In the words of the Oklahoma Court of Criminal
Appeals: „[T]he defendant will be placed in a position comparable to the one he
would have been placed in prior to the original trial.‟ ” (
Id.
at p. 520, fn. omitted.)
In assessing whether a retrospective competency hearing is feasible, the trial court
should consider “ „ “ „(1) [t]he passage of time, (2) the availability of
contemporaneous medical evidence, including medical records and prior
competency determinations, (3) any statements by the defendant in the trial record,
and (4) the availability of individuals and trial witnesses, both experts and non-
experts, who were in a position to interact with [the] defendant before and during
trial‟ ” ‟ ” (
Ary
, at p. 520, fn. 3), as well as any other facts the court deems
relevant. We stress that the focus of the feasibility determination must be on
whether a retrospective competency hearing will provide defendant a
fair
opportunity
to prove incompetence, not merely whether some evidence exists by
which the trier of fact might reach a decision on the subject. In making its
feasibility determination, the court must consider the fairness of requiring
defendant, who has already established a reversible statutory violation, to prove
his incompetence to stand trial in 1994 with the now 18-year-old evidence of his
prior mental condition still available to him today. As the United States Supreme
Court stated in an analogous situation in
Swenson v. Stidham
(1972)
We further observe that even if the trial court initially determines a
retrospective competency hearing is feasible, the trial court may later revisit the
issue of the fairness and reliability of the resulting hearing. In other words, our
reversal would stand and defendant would be entitled to a new trial if the trial
court were to determine in hindsight that, despite its initial feasibility finding, the
actual hearing had not met the feasibility requirements set forth in
People v. Ary
,
supra
,
c. Remaining Claims Concerning Competency Proceedings Defendant raises several other claims of mental-competency-related error, such as errors occurring during the first section 1368 proceedings and at the second competency proceedings, as well as the trial court‟s failure to declare a doubt regarding defendant‟s competence at other times during the trial proceedings. We conclude we need not address defendant‟s remaining competency claims in light of our reversal of the judgment subject to the initial remedy of a limited remand for a retrospective competency hearing. Ultimately, either our reversal will stand and defendant will be entitled to a new trial, or he will be found to have been competent to stand trial following fair and reliable proceedings.
2.
Exclusion of Evidence Regarding Defendant’s Alibi
Defendant presented an alibi defense at trial, arguing he was in court the
morning of the murder for a bail reduction hearing in a criminal matter unrelated
*57
to Compton‟s murder. The prosecution theorized that defendant could have left
court as early as a few minutes past 10:30 that morning, driven home with his
mother, and had just enough time to drive to the victim‟s home nearby, arriving
shortly before 11:00 a.m., the approximate time of the murder. Defendant, by
contrast, sought to establish he left court closer to 11:00 a.m., which would have
left him no time to commit the crimes. To support his theory of the case,
defendant presented evidence from witnesses who saw him in court that morning.
In addition, defense counsel mentioned the transcript of the proceedings in
department 10, Kern County Superior Court, for the morning of July 7, 1991, as a
possible aid in establishing that defendant did not leave court that morning until
almost 11:00 a.m. On appeal, defendant contends the trial court violated his
statutory and constitutional rights by excluding the transcript.
20
We conclude
20
“In this claim and most others on appeal, defendant contends the asserted
error or misconduct he raises infringed various of his state and federal
constitutional rights to a fair and reliable trial. What we stated in
People v. Boyer
(2006)
defendant forfeited this claim because he failed to formally ask the court to admit the transcript into evidence, and he did not object to any limitations the trial court suggested it might impose on the admission of evidence or defense counsel‟s arguments.
The transcript for department 10, Kern County Superior Court, for the morning of July 7, 1991, contained no obvious indications when certain proceedings began or ended. Defendant initially argued the transcript should be admitted because it would have allowed the jury to deduce how long the overall proceedings took, and then to estimate the time when defendant‟s case was called and continued. This information, he claimed, would in turn have allowed the jury to estimate the time defendant actually left the courthouse. Following the prosecutor‟s objection that drawing such an inference would be speculative, the trial court, with the parties‟ agreement, postponed its ruling on the matter. At the close of the guilt phase, when the subject of the transcript again was raised, defense counsel did not seek to introduce the transcript itself, but instead informed the court the parties had agreed to simply inform the jury of the number of pages in the transcript coming before defendant‟s final appearance that day. The prosecutor, expressing concern that the defense was attempting to draw the same speculative inference that the size of the transcript represented a particular amount of time having passed, decided to withdraw from the stipulation. Defense counsel then advised the court: “ The only thing I was requesting , your Honor, is to take judicial notice that the transcript of July 7th is marked numerically beginning on Page 2 and sequentially through Page 60.” (Italics added.) The trial court agreed to “take judicial notice of the number of pages but [stated it would not] allow any argument as related to these time factors.” Defendant did not object to this limitation on the argument to the jury, and defense counsel‟s subsequent argument to the jury did not mention the number of pages in the transcript.
From this record, that defendant failed to preserve the issue he raises on
appeal is clear. Although defense counsel initially sought to introduce the entire
transcript into evidence, counsel agreed to discuss the matter with the prosecutor
rather than having the trial court rule on the request at that time. Counsel
ultimately declined to renew his original request to introduce the entire transcript,
but instead asked the court to take judicial notice of the number of pages it
contained, which the court agreed to do. Contrary to defendant‟s assertion on
appeal, defendant never clearly advised the trial court that he sought to introduce
or argue matters beyond that which the court had allowed, and why doing so
would be proper. Nor did he argue below that the trial court was required to admit
the transcript as a matter of law, or that the court had unfairly allowed other
witnesses to testify as to some matters relating to the transcript. As we stated in
People v. Valdez
(2004)
3. Exclusion of Impeachment Evidence Regarding Prosecution Witness Karen Lehman
Defendant contends the trial court abused its discretion by precluding defense counsel from impeaching prosecution witness Karen Lehman with both her misdemeanor conviction for assault with a deadly weapon (§ 245, subd. (a)(1)) and her alleged past drug use. Both claims are meritless.
When defense counsel attempted to impeach Lehman with her
misdemeanor conviction, the prosecutor objected. The prosecutor conceded a
conviction for assault with a deadly weapon involved moral turpitude, but asserted
(1) Lehman‟s misdemeanor conviction was inadmissible under
People v. Wheeler
(1992)
We review a court‟s ruling under Evidence Code section 352 by applying
an abuse of discretion standard. (
People v. Mills
(2010)
Nor did the trial court err in precluding defendant from impeaching Lehman with her past drug use. During cross-examination, Lehman testified she did not recall the details of various events. At one point, defense counsel asked her, “Have you taken any drugs today?” After she answered no, counsel asked, “When was the last time you used drugs?” Lehman replied, “Oh, gosh, I don‟t remember. It‟s been a long time.” Counsel then asked, “Have you found that the use of drugs has affected your memory?” Lehman answered, “No. I would say I haven‟t had a good memory since I can remember, which hasn‟t been a long time ago.” The prosecutor then asked to be heard and, outside the presence of the jury, objected to the line of questioning concerning Lehman‟s past use of drugs on the ground of irrelevance. In response to the court‟s request for an offer of proof, defense counsel stated the view that drug use could affect a witness‟s perception and memory, that an individual other than defendant had provided counsel information concerning Lehman‟s supposed drug use, but that counsel did not plan on calling the individual as a witness. The trial court ruled that questions about Lehman‟s drug use were improper and stated it would admonish the jury to disregard the questions and testimony but, at the prosecutor‟s request, agreed not to strike the testimony, and the cross-examination continued.
Because defense counsel never made an offer of proof concerning what other evidence regarding Lehman‟s supposed drug use could have been admitted and, indeed, even declined to identify the potential witness who might have offered such evidence, the trial court did not abuse its discretion by foreclosing further questioning on the subject. (See People v. Thornton (2007) 41 Cal.4th 391, 448 [concluding no abuse of discretion occurred when “[c]ounsel made no offer of proof, did not attempt to lay any factual foundation for the view she expressed, and was not speaking on a subject on which judicial notice could be taken.”].)
4. Exclusion of Evidence Regarding Defendant’s Statements Concerning the Firearms
During presentation of his defense, defendant sought to introduce testimony from Beverly Westervelt and Dutler Dauwalder that defendant had told them he had purchased the victim‟s firearms and other belongings from a person who was staying at a house across the street from defendant‟s mother‟s house. Defense counsel argued Westervelt‟s and Dauwalder‟s evidence was admissible despite the hearsay rule because it constituted an admission by a party, a declaration against penal interest, and an expression of defendant‟s state of mind. The trial court rejected these arguments and excluded the testimony. Defendant contends the trial court violated his federal constitutional rights to due process and compulsory process by applying the statutory hearsay rule in an improperly “mechanistic” manner. We conclude defendant forfeited this claim and, in any event, it lacks merit.
Although defendant now argues Westervelt‟s and Dauwalder‟s testimony
was admissible under the federal Constitution irrespective of whether their
evidence qualified under an exception to the state‟s hearsay rule, defense counsel
did not make this argument at trial. Nor is the claim merely a “gloss” on the
grounds he raised in the trial court. (Cf.
People v. Boyer
,
supra
, 38 Cal.4th at
p. 441, fn. 17 [appellate claims are not forfeited if they “merely assert that the trial
court‟s act or omission, insofar as wrong for the reasons actually presented to that
court, had the additional
legal consequence
of violating the Constitution”].)
Accordingly, he failed to preserve this issue for appeal. (
People v. Ervine
(2009)
In any event, defendant‟s claim is without merit. In
Chambers v.
Mississippi
(1973)
The instant case is distinguishable from
Chambers
and its progeny both
because defendant‟s alleged statements to Westervelt and Dauwalder did not bear
persuasive assurances of trustworthiness akin to typical declarations against penal
interest, and because the statements were not critical to his defense. Far from
being trustworthy, defendant‟s statements were self-serving and inherently
suspect. Defendant could not reasonably dispute he possessed Compton‟s
firearms and other belongings. The mere circumstance that, in confirming to his
friends that he possessed the victim‟s firearms, he might have subjected himself to
criminal liability for a less serious offense than murder (that of being a felon in
possession of firearms) did not necessarily render the statements trustworthy. That
defendant supposedly made these statements before he was formally charged with
Compton‟s murder does not mean they were made when he had no motive to lie.
One might easily surmise defendant anticipated the police might someday learn of
his possession of the items and he therefore attempted to plant these statements as
a way to throw off suspicion that he had committed the murder. The statements
simply were not “well within the basic rationale of the exception for declarations
against interest.” (
Chambers v. Mississippi
,
supra
, 410 U.S at p. 302; see
People
*64
v. Elliot
(2005)
Moreover, neither Westervelt‟s nor Dauwalder‟s testimony concerning
defendant‟s statements was critical to the defense. Defendant himself was
available to testify as to how he obtained the victim‟s belongings. It has long been
the law that a defendant cannot make himself or herself “ „unavailable‟ ” for
purposes of the statutory hearsay provisions by exercising a privilege not to testify
at trial. (
People v. Elliot
,
supra
,
In sum, the high court‟s decision in Chambers v. Mississippi , supra , 410 U.S. 284, did not obligate the trial court to allow defendant to present evidence of his own hearsay statements as a means to, in effect, testify without subjecting himself to cross-examination. (See People v. Edwards , supra , 54 Cal.3d at p. 820.) The trial court‟s decision to exclude the testimony concerning defendant‟s statements did not violate his constitutional rights.
5. Eliciting Testimony Regarding Defendant’s Imprisonment Before the trial began, the trial court granted defendant‟s request and directed the prosecutor not to elicit evidence that defendant was incarcerated in prison. Instead, references to defendant‟s custodial status were to be couched in the more generic term of his being “in custody.” At trial, during Beverly Westervelt‟s testimony concerning her contacts with defendant after he went “into custody on August 12, 1993,” the prosecutor asked her if, after visiting him one time “at Lerdo,” defendant then was “transferred to Wasco.” Westervelt agreed. Later, when questioning her about a letter from defendant, the prosecutor asked Westervelt whether the “return address is Wasco.” She once again agreed. At this point defense counsel, outside the presence of the jury, expressed his concern that the references to “Wasco” were improper because counsel believed “the only thing in Wasco is a state prison.” After the court observed that defense counsel had not objected when Wasco had been mentioned, counsel moved for a mistrial. The court denied the motion, stating its view that there was nothing “so prejudicial [in] the reference to Wasco [that] it would be a basis for a mistrial. As I pointed out before, . . . [t]here‟s a lot of places in Wasco. We know that the defendant was writing these letters from someplace in custodial status.” The court offered to instruct the jury to disregard the references to Wasco, but defense counsel declined.
The following day, defense counsel renewed the motion for a mistrial, asserting that the references to Wasco implied “that [defendant] has a felony conviction, and it‟s a way of impeaching [him] without him having to take the stand.” The trial court again expressed its view that any possible prejudice arising from the references to Wasco was insignificant.
Later, during the testimony of the informant Robert Rowland, the prosecutor asked whether, because Rowland had testified as an informant in other *66 cases, he was serving his “thirteen year sentence” in “some type of protective housing unit.” Rowland confirmed this was true. He subsequently testified that for approximately one month at the end of 1993 to the beginning of 1994 he was housed with defendant in a correctional facility in Kern County. During this time, according to Rowland, defendant confessed to having killed an old man for his guns. Defendant did not object to this portion of the testimony.
Defendant contends these references, contrary to the trial court‟s pretrial order, informed the jury that he was not merely “in custody,” but was imprisoned, and therefore was a convicted felon. He asserts that the prosecutor committed misconduct by eliciting this information and that the trial court abused its discretion by denying his motion for a mistrial. Both claims lack merit.
The law is settled. A prosecutor‟s behavior does not violate the federal Constitution unless his or her actions comprise a pattern of conduct that is serious and egregious, such that the trial is rendered so unfair that the resulting conviction violates the defendant‟s right to due process of law. Short of rendering the trial fundamentally unfair in the federal sense, the prosecutor‟s actions may still violate the state Constitution if he or she engaged in deceptive or reprehensible tactics in order to persuade the trier of fact to convict. ( People v. Abilez (2007) 41 Cal.4th 472, 494.)
As the trial court explained, the prosecutor‟s questions referencing the town of Wasco as defendant‟s place of residence, and Westervelt‟s confirmation, were vague, as defendant may have been in custody somewhere in the town of Wasco other than in Wasco State Prison. Moreover, any possible prejudice was minimal, as the jury already knew defendant was “in custody” somewhere. While it might have been better for the prosecutor to have refrained from such questions, we cannot conclude such questions constituted an egregious pattern of misconduct or that defendant‟s trial was rendered fundamentally unfair as a result.
Defendant‟s claim that the court abused its discretion by denying his
motion for a mistrial on this ground fares no better. “ „ “A mistrial should be
granted if the court is apprised of prejudice that it judges incurable by admonition
or instruction. [Citation.] Whether a particular incident is incurably prejudicial is
by its nature a speculative matter, and the trial court is vested with considerable
discretion in ruling on mistrial motions.” ‟ ” (
People v. Lucero
(2000) 23 Cal.4th
692, 713-714.) Accordingly, “[w]e review a trial court‟s denial of a motion for
mistrial for abuse of discretion.” (
People v. Williams
(1997)
Regarding the references to “Wasco” during Westervelt‟s testimony, we
cannot conclude the trial court abused its broad discretion in ruling that a mistrial
was not warranted. (
People v. Panah
(2005)
To the extent he makes the same claims with regard to Rowland‟s testimony, defendant did not object or move for a mistrial based on asserted prosecutorial misconduct in violating the trial court‟s order. Accordingly, defendant forfeited this aspect of his claim. ( People v. Riggs (2008) 44 Cal.4th 248, 298.) The trial court would not in any event have been obligated to declare a mistrial had defendant requested one. Rowland did not testify that defendant and he were housed together in a protective unit in a prison. Accordingly, there is no *68 likelihood the jury, who were not lawyers familiar with custodial arrangements, would have inferred from Rowland‟s testimony that defendant was not merely “in custody,” but was imprisoned. Rowland‟s testimony did not irreparably damage defendant‟s chance of receiving a fair trial, and granting a mistrial therefore was not appropriate.
6. Refusal to Give Defendant’s Proposed Instruction Concerning Alibi Defense
Defendant requested a special instruction informing the jury: “Where it is claimed that the defendant was not at the scene at the time the alleged crime was to have been committed, the defendant is not required to prove the alibi beyond a reasonable doubt or by a preponderance of the evidence, rather the prosecution has the burden to prove beyond a reasonable doubt the defendant was present on the premises when the crime was committed.” Defendant asserted that CALJIC No. 4.50—the standard jury instruction regarding an alibi defense the trial court intended to give the jury—did not adequately explain that defendant did not bear the burden of proving the truth of his alibi. 22 The trial court rejected defendant‟s proposed instruction, finding it potentially confusing and that it did not “say[] anything more than what CALJIC 4.50 says.”
Before the court instructed the jury at the close of the guilt phase, defense counsel renewed his request, this time buttressed by citations to cases purportedly supporting the proposed special instruction. After a recess during which the court 22 CALJIC No. 4.50, as was given in this case, provided: “The defendant in this case has introduced evidence for the purpose of showing that he was not present at the time and place of the commission of the alleged crime for which he is here on trial. If after consideration of all the evidence, you have a reasonable doubt that the defendant was present at the time the crime was committed, you must find him not guilty.”
examined those decisions, the court again rejected the instruction because it “would at least imply . . . that there is some burden on the defendant to do something, even though [he] may not be required to prove the alibi beyond a reasonable doubt,” and the court did not “want the jurors to think that the defense has the burden to prove anything.” The court stated: “If the alibi [the defense submits] raises a reasonable doubt regarding the defendant‟s presence at the scene of the crime, then the jurors would have to find the defendant not guilty of the offense, otherwise there would be a reasonable doubt in their mind[s] in that regard. [¶] So I think it‟s superfluous, it‟s redundant, and it‟s confusing.”
Defendant contends the proposed special instruction was a proper “pinpoint
instruction” regarding his alibi defense, and the trial court‟s refusal to give the
instruction to the jury violated his statutory and constitutional rights. We rejected
a similar claim in
People v. Richardson
(2008)
7. Absence of Instruction to the Jury at the Guilt and Penalty Phases Regarding Restraints
Based on information from jail staff concerning defendant‟s behavior while in custody, the trial court ordered defendant physically restrained during the trial by means of leg irons and a waist belt attached by a chain to an eyebolt in the floor under the defense table. The restraints were hidden from the jury‟s view by a shroud around counsel‟s table, and the chain connecting defendant to the floor was wrapped in tape to prevent it from making sounds when defendant moved. The court further explained that, if defendant testified, his chains would be removed and he would be placed in the witness chair outside the presence of the jury.
Defendant contends the trial court erred by failing on its own motion to instruct the jury with CALJIC No. 1.04, at both the guilt and penalty phases, concerning its duty not to consider the circumstance that defendant was physically restrained while in the courtroom. 24 This claim fails because there is no factual support in the record for the necessary preliminary finding that any juror was 24 CALJIC No. 1.04 provides: “The fact that physical restraints have been placed on defendant [_____] must not be considered by you for any purpose. They are not evidence of guilt, and must not be considered by you as any evidence that [he] [she] is more likely to be guilty than not guilty. You must not speculate as to why restraints have been used. In determining the issues in this case, disregard this matter entirely.”
aware of defendant‟s physical restraints. Defendant‟s citations to various
mentions of the restraints by the court and counsel, primarily made during the
pretrial proceedings, in no way establishes that, despite the trial court‟s
precautions, the jury was aware of the restraints during the trial. In the absence of
any indication in the record that the jury was aware of the physical restraints, or a
request from defendant for an instruction on this subject, the trial court did not err
by failing to instruct the jury with CALJIC No. 1.04. (
People v. Medina
(1995)
II. P ENALTY P HASE AND P OSTTRIAL
A. Facts
1. Prosecution Evidence The prosecution presented evidence of four incidents involving assaultive conduct by defendant. Beverly Westervelt testified that on December 17, 1990, she and defendant were living together in her apartment, and defendant came home very early in the morning after being out all night. Defendant became enraged when Westervelt asked him where he had been and hit her with an ironing board, grabbed her by her neck and dragged her across the room, and punched her in the chest. Defendant later apologized, but told her that if he had wanted to hurt her, he could have “put his fist right straight through” her. Westervelt‟s chest hurt for several days, and she eventually went to the hospital, although an X-ray examination disclosed no injury requiring treatment.
John Turner testified that on the night of December 5, 1991, he was at a nightclub in Bakersfield and defendant would not let Turner pass him when Turner was on his way to the bar. Defendant challenged Turner to go outside, and Turner agreed. On the way out of the bar, Turner, who was walking in front of defendant, *72 was struck and rendered unconscious. When he regained consciousness, his lip and chin were bleeding; his chin was permanently scarred. Approximately two weeks later, defendant came to Turner‟s apartment and apologized for hitting him at the nightclub. Defendant asked Turner not to press charges, and Turner agreed.
A prison corrections officer testified that on November 12, 1993, at Folsom State Prison, defendant and another inmate engaged in a fistfight in a cellblock. Defendant refused to attend the resulting disciplinary hearing and was found to have violated prison rules by fighting. The disciplinary charges against the other inmate were dismissed, which indicated he had been acting in self-defense during the fight.
A detention officer in the Kern County Jail testified that on April 2, 1995, he saw an extra set of jail clothing in defendant‟s cell, which was a violation of jail regulations. The officer entered the cell and directed defendant, who was lying on his bed, to stand up and face the wall so the officer could search the bed for other contraband. Defendant did not immediately comply, and the officer repeated his command. Defendant eventually got up but, contrary to the officer‟s orders, turned toward the officer and “squared up,” clenching his fists by his side. Interpreting defendant‟s actions as “combative,” the officer restrained defendant in a “wrist lock,” placed him prone on the floor, handcuffed him and, pursuant to standard procedures when a detainee has been restrained in this manner, took him to the jail‟s infirmary.
The prosecution also introduced records of defendant‟s three prior felony convictions, for possession of amphetamine for sale and for possession of marijuana for sale, both occurring in 1976, and for possession of cocaine in 1987.
Finally, the prosecution presented the testimony of Compton‟s nephew, Anthony Compton, regarding the murder victim‟s characteristics, activities, and hobbies. Although his uncle had been diagnosed with serious cancer, Anthony *73 testified Compton remained very energetic and enthusiastic, and never gave up hope. About a week before the murder, he told Anthony that “everything was looking good.”
2. Defense Evidence Against the advice of his defense attorneys, defendant testified at the penalty phase, mostly to dispute the veracity of the guilt and penalty phase evidence presented against him. Defendant claimed that most of the prosecution witnesses had lied, and maintained he could not have committed the murder because the court proceeding he had attended on the day of the murder began in the morning and lasted all day, until 5:45 that evening. He claimed the reporter‟s transcript and the telephone records indicating otherwise were fraudulent and had been doctored as part of a conspiracy against him. Although defendant admitted he had possessed the victim‟s guns and belongings, he contended he purchased all the items on July 17, 1993, from a person who was staying at a house across the street from his mother‟s house. After he learned of the murder by reading Compton‟s obituary, defendant realized he had purchased the victim‟s belongings, but did not contact the police because he was afraid the person who had sold him the items might retaliate, or the police would charge him with possession of stolen property or being a felon in possession of firearms. According to defendant, before he was arrested for Compton‟s murder, he told several people he had bought the items. Defendant denied he threatened to harm Karen Lehman if she told anyone about the guns.
Defendant testified that in the three incidents in which he was accused of assaulting Westervelt, Turner, and the prison inmate, he was only responding to the other person‟s aggressive actions. As to the incident in his jail cell, he claimed he had complied with the detention officer‟s order to stand and face the wall, but *74 the officer nonetheless grabbed defendant‟s hand, pushed him to the floor, kicked him in the ribs, and handcuffed him. According to defendant, the officer broke bones in defendant‟s hand and several of his ribs, and the medical records from the incident, which did not indicate such injuries, were forgeries. Defendant admitted his prior convictions, but largely denied he had committed the crimes or minimized their significance. He acknowledged that his probation for one of the charges had been revoked based on subsequent charges he had molested a student at a school where he was teaching. Although defendant had been acquitted of those charges, he claimed his probation nonetheless was revoked because he had refused to admit he was a sex offender when he was not. He also denied he committed the subsequent molestation of which he was accused, which was related to the court proceeding on the day of the murder. He said he ultimately pleaded no contest to the charges in order to receive a greatly reduced sentence.
Defendant also recounted his difficulties with the various attorneys who represented him in the early stages of these proceedings. In defendant‟s view, his defense attorneys were working with the prosecution to convict him, and the prosecutors and court employees involved in his case were biased against him.
Defendant also discussed his personal and family history, including his having graduated from the California State University at Bakersfield and having been gainfully employed by several large companies. Defendant said his relationship with Beverly Westervelt generally was peaceful. He had purchased a house for them to live in and provided other support for her and her two children. Other than the incident that had been brought up at trial, there had never been physical altercations between them. Defendant described his relationship with his father as their being “best friends,” although his father was a strict disciplinarian. In 1978, defendant‟s father committed suicide by shooting himself with a shotgun, and defendant was the one who had found the body.
Defendant‟s older brother, Richard Lightsey, who was a minister in the Episcopal Church, also testified concerning defendant‟s family life. Richard described two instances in which their father had physically attacked their mother. After the first attack, their father moved to a separate room in the house and began starving himself, which eventually resulted in his being hospitalized for malnutrition and scurvy. Later, after the second attack, their mother moved out of the house. Richard came to his father‟s house the day his father committed suicide and saw defendant crying hysterically and banging his head and arms against a wall. According to Richard, after defendant was released from prison following his cocaine possession conviction, he seemed to be quite successful in getting his life back on track, as he obtained gainful employment and bought a house. The subsequent molestation charges greatly upset defendant because his progress in reestablishing his life was placed in jeopardy. Defendant was very focused on proving his innocence of the molestation.
Clinical Psychologist William Pierce interviewed defendant and several of his family members and reviewed various records related to this case, including the reports of the three experts who had previously evaluated defendant‟s competence to stand trial. Dr. Pierce opined defendant suffered from a severe emotional disturbance, with paranoid, persecutory, delusional, and narcissistic personality disorders and depressive characteristics involving a sense of hopelessness and despair. Defendant, however, had refused to participate in a suggested series of clinical psychological tests to further evaluate his personality and the possibility of any organic impairment of his central nervous system.
Although defendant described his childhood to Dr. Pierce as positive and happy, the other members of his family presented a less cheerful situation, mainly revolving around the violent behavior of the father. The family members reported that at one point the father stated he had a religious vision and believed he had *76 magical powers and would not die. Unlike other members of the family, defendant appeared to accept his father‟s beliefs as rational, and although defendant acted as though everything was fine after his father‟s suicide, he actually was denying his feelings as a way to minimize his emotional problems. Dr. Pierce believed defendant‟s suppression of his true feelings about his father‟s death fostered his distorted view of the world, including his feelings of persecution. Defendant‟s psychological problems had been present for several years and might have affected his thinking at the time of the murder. In Dr. Pierce‟s opinion, a sentence of life without the possibility of parole would curb defendant‟s criminal behavior. His personality disorders could be treated, but successful treatment might be difficult.
B. Issues
1. Limitations on Dr. Pierce’s Penalty Phase Testimony Defendant contends the trial court erred by limiting the penalty phase testimony of his psychiatric expert, Dr. Pierce, in two respects. As we explain, neither claim has merit.
During his penalty phase testimony, defendant discussed his difficulties with his previous attorneys and mentioned there had been delay in the proceedings while his competence to stand trial was evaluated. The prosecutor objected to further testimony regarding the earlier competency proceedings on the ground such testimony would be irrelevant. Defense counsel explained the evidence of defendant‟s competency evaluations was intended to address section 190.3, factor (d), concerning “[w]hether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.” Counsel advised the court he intended to “lay the foundation [for the reports] through [defendant] and then take that matter through Dr. Pierce when he *77 testifies.” Referring to the three mental health experts who had previously examined defendant in connection with the two earlier competency hearings, defense counsel clarified he was “not going to call [any of those doctors] as a witness and I‟m not going to give the doctors‟ conclusion.” In response to the prosecutor‟s continuing objection, defense counsel stated, “ I don’t plan to ask Dr. Pierce what was in those reports . I‟m going to ask Dr. Pierce if he read those reports, . . . and I‟m going to ask him if he relied on those reports partially in forming his opinion. . . . [¶] I’m not going to ask what these doctors said. ” The trial court thereafter stated: “I don‟t have any problem with your making an inquiry as to whether or not he was evaluated by those doctors. And if at some point in time you‟re going to call Dr. Pierce to come in here and testify that, amongst other things, in addition to his education, in addition to his experience, he‟s going to rely upon the reference to the reports previously made by Dr. Velosa, Dr. Burdick and Dr. Manohara and stops at that, I don‟t have any particular problem with that and I don‟t think the People do.” The prosecutor agreed. Defense counsel then proceeded to question defendant concerning his meetings with the psychiatrists.
Later, during the direct examination of Dr. Pierce, defense counsel asked whether Dr. Pierce had made “some psychiatric evaluations,” and he replied, “No, I didn‟t, but I read some.” Dr. Pierce then continued: “There were other psychiatric evaluations, reports that were done by other psychiatrists that I read subsequent to my coming to an opinion, and he was evaluated by these psychiatrists [in] July 1994 for a couple of reasons. One—.” At this point the prosecutor objected, and the trial court reminded counsel of its earlier ruling. Defense counsel explained his intention was “the doctor was going to explain that he read these psychiatric evaluations as part of the foundation for arriving at his conclusion.” The trial court reminded counsel this “was to be a general *78 reference,” and counsel agreed to “be general.” Counsel then asked Dr. Pierce: “And after having read these reports and having read all the other material provided to you, having had your interviews with members of the family and [defendant], did you come to a professional opinion as to [defendant‟s] personality?” Dr. Pierce stated he had reached a conclusion and then proceeded to explain it to the jury.
Defendant contends the trial court improperly limited Dr. Pierce‟s testimony regarding his evaluation of the reports of the three psychiatrists. As the record demonstrates, however, defendant did not seek to have the trial court admit into evidence anything more than what it ultimately did admit. Defendant‟s contention the court erred by excluding testimony concerning the specific contents of the reports of those three doctors lacks merit because he never sought to introduce such testimony at trial. (Cf. People v. Valdez , supra , 32 Cal.4th at p. 109 [when a defendant on appeal argues a theory of admissibility of evidence not raised at trial, “[W]e cannot hold the trial court abused its discretion in rejecting a claim that was never made.”].) Indeed, if defendant actually had been seeking to introduce the opinions expressed in the reports, no reason appears why he could not have simply called those doctors to testify concerning their own evaluations.
Defendant also contends the trial court “abused its discretion by excluding Dr. Pierce‟s expert opinion regarding whether [defendant‟s] father‟s conduct was symptomatic of mental illness around the time of his involuntary commitment to the psychiatric facility at the Kern County Hospital,” asserting there is “widespread acknowledgment and „clear evidence‟ that genetic influences and a person‟s background contribute greatly to the etiology of mental illness.” The record shows defense counsel first established that defendant‟s father had been admitted to a psychiatric ward of the Kern County Hospital as a result of some *79 apparently disturbed behavior. Counsel then asked Dr. Pierce whether he had “an opinion about [the] father‟s conduct at [the] time [of his hospitalization].” The prosecutor objected, and the court sustained the objection, advising counsel to “go back to the main theme.” Counsel then asked the doctor whether defendant had “give[n] you any impression of the effect of his father‟s conduct at this time on him.” Dr. Pierce replied, “[The i]nteresting thing about [defendant‟s] description of, and relationship with, his father is that he never gave me the indication that this was as bizarre, and what I call psychotic in my opinion, as the other family members,” and he then proceeded to discuss the difference in defendant‟s perception from “the reality that other family members clearly agreed on.”
Although defendant now contends the trial court abused its discretion in
sustaining the prosecution‟s objection and excluding Dr. Pierce‟s opinion about
the mental problems of defendant‟s father, defendant made no offer of proof
concerning what Dr. Pierce‟s testimony on this subject would have been. We
cannot conclude the trial court abused its discretion by sustaining the objection to
this question when defendant made no offer of proof at trial explaining why the
witness should have been permitted to answer the question.
25
(Cf.
People v. Whitt
(1990)
2. Admission of Section 190.3, Factor (b) Evidence Concerning the Incident in Jail
Defendant contends the trial court erred by admitting, over his objection, testimony concerning the incident in the Kern County Jail in which he failed to comply with a detention officer‟s commands and then “squared up” to the officer by facing him with his fists clenched at his sides, in what the officer described as a “combative stance,” prompting the officer to take him to the floor, handcuff him, and remove him from the cell. In rejecting defendant‟s motion to strike this testimony, the trial court agreed with the prosecutor‟s assertion that, if the jury accepted the officer‟s testimony, defendant‟s conduct constituted resisting or obstructing a law enforcement officer in the performance of his duties, in violation of section 148, 26 with an implied threat of force or violence, and therefore the testimony was admissible under section 190.3, factor (b). 27 In the court‟s view, “That‟s a jury question. They can figure that out themselves, make a determination as to whether or not that conduct which was testified about by [the officer] falls within . . . that category.”
26 Section 148, subdivision (a)(1) provides: “Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician, as defined in Division 2.5 (commencing with Section 1797) of the Health and Safety Code, in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.”
27 Section 190.3 provides in relevant part: “In determining the penalty, the trier of fact shall take into account any of the following factors if relevant: [¶] . . . [¶] (b) The presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence.”
On appeal, defendant asserts his behavior constituted merely a failure to
respond to the officer‟s orders with “alacrity,” not resistance or obstruction, and
his “passive actions” did not involve violence. We agree with the trial court,
however, that the jury could reasonably find from the officer‟s testimony that after
the officer found contraband in defendant‟s cell, he tried to search the cell for
other improper items, but defendant only reluctantly complied with his orders to
move from his bed and then assumed a threatening stance, which the officer
viewed as combative. As a result of these actions, the officer could not at that
time complete the search of defendant‟s cell, but instead determined it was
necessary to restrain defendant before the incident escalated. From this, the jury
could find the incident constituted obstructing the officer during his lawful duties,
and defendant‟s actions carried an implied threat of violence. (See
People v. Sapp
(2003)
3.
Refusal to Permit Defendant to Address the Jury Before
Announcement of the Penalty Verdict
Defendant contends the trial court erred by denying his request to
personally address the jury after the jury announced it had reached a verdict and
before the verdict was read in court. This claim lacks merit: “[B]ecause a
defendant has the right to testify at the penalty trial, we have repeatedly „held that
the defendant does
not
have the “ „right to address the sentencer without being
subject to cross-examination‟ in capital cases.” ‟ ” (
People v. Cleveland
(2004) 32
Cal.4th 704, 766; see also
People v. Evans
(2008)
4. Ruling on the Motion for New Trial Defendant moved for a new trial under section 1181, raising several grounds. Section 1181 states in pertinent part that, “[w]hen a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only: [¶] . . . [¶] 5. When the court has misdirected the jury in a matter of law, or has erred in the decision of any question of law arising during the course of the trial, and when the district attorney or other counsel prosecuting the case has been guilty of prejudicial misconduct during the trial thereof before a jury[.]” The trial court denied the motion in its entirety but did not specifically mention two grounds defendant had included in the motion: that a prosecutor previously assigned the case who testified at trial regarding defendant‟s alibi had committed “misconduct” by testifying untruthfully, 28 and that the trial court erred by denying defendant‟s section 995 motion to dismiss the charges. Defendant now claims the trial court‟s failure to reject these claims specifically requires we reverse the judgment and 28 Defendant‟s motion pointed out that the prosecutor testified at trial that defendant‟s bail matter in department 10 on the morning of the murder was called for the final time shortly after 10:30 a.m. and concluded a few minutes later, but at the preliminary hearing in the murder case had testified defendant‟s matter in department 10 concluded about 10:45 that morning.
remand the matter to the trial court with directions to reconsider the new trial motion.
“ „We review a trial court‟s ruling on a motion for a new trial under a
deferential abuse-of-discretion standard.‟ [Citations.] „ “A trial court‟s ruling on a
motion for new trial is so completely within that court‟s discretion that a
reviewing court will not disturb the ruling absent a manifest and unmistakable
abuse of that discretion.” ‟ ” (
People v. Thompson
(2010)
In light of the trial court‟s comprehensive statement denying the motion, we
presume the court considered and rejected each ground raised in defendant‟s
motion. Defendant‟s claim is similar to one we addressed in
People v. Lewis and
Oliver
(2006)
The same reasoning applies here. When the trial court denied the new trial motion “in light of [the court‟s] review of the various arguments presented here today, along with the written motion,” we assume the court considered and rejected all grounds defendant raised, including the two grounds defendant now argues were omitted from the court‟s consideration. Moreover, the court‟s failure to embellish its ruling by referring to the specific claims included in the motion is not particularly surprising in light of the minimal presentation defendant made below, particularly regarding the claims he now raises on appeal: they were raised only briefly in a conclusory fashion in the written motion and were not orally addressed at the hearing. We therefore conclude defendant has not demonstrated the trial court failed to rule on these grounds.
Although defendant does not specifically address the merits of his new trial
motion, we also conclude the court did not abuse its discretion in denying it. As to
the claim of prosecutorial misconduct, defendant did not establish that the former
prosecutor‟s testimony at trial, to the extent it might have been inconsistent with
his testimony at the preliminary hearing, was false and therefore constituted
misconduct. Moreover, even if defendant had established misconduct, he did not
establish he was denied a fundamentally fair trial or that a reasonable probability
existed he would have obtained a more favorable outcome, especially in light of
the fact defense counsel questioned the witness about this possible inconsistency
during redirect examination. As to the claim the trial court erred in denying his
section 995 motion, the court‟s finding the evidence at trial was sufficient to prove
defendant‟s guilt rendered moot the challenge to the magistrate‟s finding of
probable cause. (
People v. Crittenden
(1994)
5. General Challenges to the Death Penalty Defendant raises a number of challenges to the validity of the California statutes and procedures relating to capital cases. We previously have rejected these claims, and do so again here.
“The set of special circumstances qualifying a first degree murder for
capital sentencing (§ 190.2) is not impermissibly broad. [Citation.] Nor is section
190.3, factor (a), under which the jury may consider the „circumstances of the
crime‟ as a factor in aggravation (or mitigation) of penalty, so broad as to make
imposition of a death sentence arbitrary and capricious.” (
People v. Moore
(2011)
We also have rejected the argument that various asserted “safeguards” in
the sentencing process are constitutionally compelled. Thus, the jury is not
required to reach a unanimous verdict or issue a written verdict regarding the
existence of aggravating factors. (
People v. Moore
,
supra
,
“Comparative intercase proportionality review of death sentences is not
constitutionally required. [Citations.] „Because capital and noncapital defendants
are not similarly situated in the pertinent respects, equal protection principles do
not mandate that capital sentencing and sentence-review procedures parallel those
used in noncapital sentencing.‟ ” (
People v. Moore
,
supra
,
“ „California‟s use of capital punishment as an authorized sentence for
certain specified types of first degree murder does not constitute cruel and unusual
punishment merely because most nations have chosen not to employ the death
penalty at all. [Citations.]‟ ” (
People v. Moore
,
supra
,
6. Cumulative Error Defendant contends the judgment should be reversed based on the asserted cumulative effect of the guilt and penalty phase errors he has raised. Other than the conclusion that reversible (but potentially curable) error occurred when the trial court permitted defendant to represent himself during the competency proceedings, the other errors we have found or assumed were harmless. Even when considered cumulatively, these other errors do not support a conclusion that defendant was denied a fair trial.
III. D ISPOSITION
We reverse the judgment and remand to the trial court with directions to determine whether holding a retrospective competency hearing is still feasible. If it is not, the trial court must set the case for a new trial. Prior to that trial, the trial court must determine defendant‟s present competence to stand trial.
If the trial court initially finds a retrospective competency hearing is feasible, it will conduct appropriate competency proceedings, in accordance with this opinion. If after such proceedings the court finds that the hearing was not procedurally adequate and substantively acceptable, or that defendant proved he was incompetent, the trial court must set the case for a new trial. If it finds the hearing was adequate and defendant failed to prove he was incompetent, the trial court will reinstate the judgment.
W ERDEGAR, J.
W E C ONCUR:
C ANTIL- S AKAUYE, C. J.
K ENNARD , J.
B AXTER , J.
C HIN , J.
C ORRIGAN , J.
L IU , J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Lightsey
__________________________________________________________________________________ Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________ Opinion No. S048440
Date Filed: July 9, 2012
__________________________________________________________________________________ Court: Superior
County: Kern
Judge: John I. Kelly
__________________________________________________________________________________ Counsel:
Erik N. Larson and Manuel J. Baglanis, under appointments by the Supreme Court; Law Office of E. Michael Linscheid and E. Michael Linsheid for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, Judy Kaida and Kari Ricci, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion): Erik N. Larson
Law Office of E. Michael Linscheid
345 Franklin Street
San Francisco, CA 94102
(415) 782-6002
Manuel J. Baglanis
Law Office of Manuel J. Baglanis
P. O. Box 70035
San Jose, CA 95170
(408) 446-3987
Kari Ricci
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 327-0306