THE PEOPLE, Plaintiff and Respondent, v. RODNEY J. MIXON, Defendant and Appellant.
No. B036192
Second Dist., Div. Seven.
Nov. 27, 1990.
225 Cal. App. 3d 1471
Robert Derham, under appointment by the Court of Appeal, for Defendant and Appellant.
John K. Van de Kamp, Attorney General, Richard B. Iglehart, Chief Assistant Attorney General, Edward T. Fogel, Jr., Assistant Attorney General, John R. Gorey and Ivy E. Kessel, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
WOODS (Fred), J.—We hold that when a defendant challenges a certification that he has regained mental competence (
PROCEDURAL AND FACTUAL BACKGROUND
In May 1984 defendant was charged with attempted murder (
In August 1985, the trial court found defendant presently incompetent (
Defendant, having pleaded not guilty and not guilty by reason of insanity (
Since defendant makes no general insufficiency of evidence claim,6 we summarize the evidence. Our perspective favors the judgment. (People v. Barnes (1986) 42 Cal.3d 284, 303-304 [228 Cal.Rptr. 228, 721 P.2d 110].)
During the evening of December 13, 1982, 20-year-old Carol W. (victim) was alone in her Pasadena apartment. Around 8:30 p.m. hearing a knock at her door and expecting her boyfriend, she opened the door and saw a stranger, defendant. Defendant said he was looking for “Richard” and the victim suggested he check the rear apartment units. She shut the door and returned to watching television. About 10 minutes later there was another knock. Again thinking it was her boyfriend, the victim opened the door, saw the defendant, and when he asked to use her phone, said although the
Defendant asked if anyone else was in the apartment and when the victim said “no,” he nevertheless checked the entire apartment. He then asked her if she had any money and when she said she didn‘t he stated “if he couldn‘t take from [her], he was going to take of [her].”
At gunpoint defendant forced the victim to orally copulate him. He then twice had forcible vaginal intercourse with her, first while she lay on her back, and second, after having her turn over.
Following these acts defendant had the victim bathe, douche, dress, and “wipe down everything that he might have come in contact with.” He then tied her feet, bound her hands behind her back, put her face down on the floor of the closet and closed the door. For about 30 minutes the victim heard defendant rustling about her apartment.
Defendant then reentered the closet and began strangling the victim with her scarf. Her left eye swelled, her nose bled, and she was about to pass out when something may have startled defendant and the victim managed to swing around and scream. He stopped strangling her.
Defendant untied the victim‘s feet, took her into the bathroom, cleaned the blood from her face, and at gunpoint forced her from the apartment, down the street, and into the passenger seat of his van. Defendant drove to a dark side street in the Altadena hills and parked.
After what seemed to the victim like two hours of talking, the defendant ordered her to lie down in the back of the van. Defendant then struck the victim on the back of her head, causing her to momentarily lose consciousness, bleed profusely, and feel excruciating pain. He returned to the driver‘s seat and drove off. But when he noticed the victim was still conscious defendant ordered her back to the passenger seat. She crawled forward to the passenger seat and, eyes closed from pain, leaned against the door.
Defendant stopped the van, got out, and opened the passenger door. The victim fell out. Defendant grabbed one of her arms and dragged her away from the van. He then shot her, once in the buttock and once in the back. The victim remained motionless, pretending to be dead, until she heard the van drive away.
The victim was hospitalized for five days and incapacitated for fifteen days. When she returned home she discovered that her television, tuner, speakers, and jewelry box were missing. Her jewelry box was later recovered from defendant‘s home.
Defendant was arrested in April 1984 at Parchman State Penitentiary, Mississippi.
CONTENTIONS
Defendant contends:
1. At a restoration of competence hearing (
2. There is insufficient evidence of two rapes.
3. The trial court erred in separately punishing him for two rapes.
4. The trial court erred in imposing separate punishment for each sexual offense gun use (
5. The trial court violated
6. The burglary great bodily injury enhancement must be stricken.
DISCUSSION
1. Defendant contends that at a restoration of competence hearing (
In finding that defendant‘s competence had been restored, the trial court (Superior Court Judge Eric E. Younger) relied upon the
We separately consider each assertion.
a. Defendant asserts that at an initial competency hearing (
At his initial 1985 competency hearing, defendant sought to be found incompetent. His attorney commenced the hearing and called the first witness (
Defendant now claims that he should not have had the burden to prove his incompetence. Defendant having suffered no prejudice from the statutory burden, and having made no timely objection to it (
b. Defendant asserts the prosecutor should have had the burden of proof at the restoration hearing because the prosecutor was the moving party.
Defendant here relies upon a fundamental legal principle: “On all motions the burden is on the moving party. . . .” (Scott v. Renz (1945) 67 Cal.App.2d 428, 431 [154 P.2d 738]; accord, Heesy v. Vaughn (1948) 31 Cal.2d 701, 708 [192 P.2d 753]; People v. Carson (1970) 4 Cal.App.3d 782, 785 [84 Cal.Rptr. 699] [“A motion is an application made to the court for an order. (Citations.) On the hearing the movant has the burden to support his motion by proof. (Citations.)“].)
To determine upon whose motion the court ordered the subject restoration hearing, we consider both the record and the provisions of
The record indicates that on January 7, 1987, the trial court had received from a state hospital medical director a certification that defendant had regained competence. (
Upon receipt of this certification and the defendant‘s return to court, the trial court, absent a request for a hearing, had authority to summarily approve the certification.
But, although
The trial court did not summarily approve the certification of competence because defendant‘s trial counsel challenged that certification and requested a competency hearing. Trial counsel stated, “Atascadero . . . informed the
Thus, as the record makes plain, it was defendant, not the prosecution, who made the motion for a
c. Defendant asserts the statutory scheme (
Our “quest [is] to determine the Legislature‘s intent so that the purpose of the legislation may be effectuated . . . . [A] statute should be construed with reference to the entire statutory system of which it forms a part in such a way that harmony may be achieved among the parts . . . .” (People v. Caudillo (1978) 21 Cal.3d 562, 576 [146 Cal.Rptr. 859, 580 P.2d 274].) “The interpretation of a statute as a whole must be reasonable and when opportunity arises, made compatible with common sense and the dictates of justice. It is the duty of courts not to be ingenious to find ambiguity in the statutes because of extraneous matters, but to interpret them in such a manner that they may be free of ambiguity, and to give, if possible, a construction which not only renders them constitutional, but which is consistent with sound common sense and wise policy, with a view to promoting justice.” (Adoption of Thevenin (1961) 189 Cal.App.2d 245, 249-250 [11 Cal.Rptr. 219].)
Clearly, the Legislature intended, as due process requires (Pate v. Robinson (1966) 383 U.S. 375 [15 L.Ed.2d 815, 86 S.Ct. 836]), that “[a] person cannot be tried or adjudged to punishment while such person is mentally incompetent.” (
It is apparent that the Legislature foresaw a stream of returning defendants, either promptly certified as having regained competence,9 or automatically returned after an 18-month interval.
As we earlier observed, the Legislature did not prescribe an automatic hearing for defendants certified competent. Instead, the trial court was authorized to merely “approve[] the certificate of restoration to competence . . . .” (
A defendant about whose competency a doubt arises receives a section 1369 hearing (
d. Defendant asserts that at a restoration hearing due process requires that the state have the burden of proof.
Defendant argues that to impose upon an accused the burden to prove his own incompetence creates an unconstitutional risk: when the evidence is
We begin by considering what due process does and does not require.
“Due process requires only that the procedure adopted comport with fundamental principles of fairness and decency. The due process clause of the Fourteenth Amendment does not guarantee to the citizen of a state any particular form or method of procedure.” (People v. Rojas (1981) 118 Cal.App.3d 278, 287 [174 Cal.Rptr. 91].) As Justice White observed for the Court in Patterson v. New York (1977) 432 U.S. 197 [53 L.Ed.2d 281, 97 S.Ct. 2319] “we should not lightly construe the Constitution so as to intrude upon the administration of justice by the individual States. Among other things, it is normally ‘within the power of the State to regulate procedures under which its laws are carried out, including the burden of producing evidence and the burden of persuasion’ and its decision in this regard is not subject to proscription under the Due Process Clause unless ‘it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.‘” (Patterson v. New York, supra, 432 U.S. 201-202 [53 L.Ed.2d 281, 286-287].) In applying these principles Patterson upheld a New York statute which imposed upon a murder defendant the burden of proving “extreme emotional disturbance” in order to reduce the offense to manslaughter.
An Ohio statute went further. To establish self-defense, in an aggravated murder trial, it required the defendant to prove this defense by a preponderance of the evidence. The statute was found consistent with due process in Martin v. Ohio (1987) 480 U.S. 228 [94 L.Ed.2d 267, 107 S.Ct. 1098]. Martin distinguished In re Winship (1970) 397 U.S. 358 [25 L.Ed.2d 368, 90 S.Ct. 1068], which “declared that the Due Process Clause ‘protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.‘” (Martin v. Ohio, supra, at pp. 231-232 [94 L.Ed.2d at p. 273].)
Similarly, In re Winship is inapposite here. The subject statutory scheme (
One premise of defendant‘s argument cannot be denied: the statutory burden of proof (
Inherently, burdens of proof draw lines. Those who cannot cross the line, regardless of how close they may come, are denied relief. Therefore to argue, as defendant does, that the statutory burden of proof line denies relief to those who come close (“the evidence is balanced“) but fail to cross it, only describes an attribute inherent in all burdens of proof. Defendant must do more. He must show that this line “offends some principle of justice . . . rooted in the traditions and conscience of our people . . . .” (Patterson v. New York, supra, 432 U.S. 197, 201-202 [53 L.Ed.2d 281, 287].) We conclude he has not done so.
Although defendant cites federal and some state authorities which “put the burden on the prosecution to establish competence to stand trial,” he acknowledges contrary authorities. This issue, at least in California, is now settled. The burden of proof (at an initial competency hearing) may constitutionally be placed upon the defendant. (People v. Medina, supra, 51 Cal.3d 870, 885, 886.)
Additionally, in reviewing a Missouri mental competence statutory scheme similar to California‘s which included a preponderance burden of proof to establish incompetence, a unanimous United States Supreme Court stated, “Missouri‘s statutory scheme ‘jealously guards’ a defendant‘s right to a fair trial.” (Drope v. Missouri (1975) 420 U.S. 162, 173 [43 L.Ed.2d 103, 114, 95 S.Ct. 896].)
We believe California‘s mental competence statutory scheme no less “jealously guards” a defendant‘s right not to be tried—if incompetent.
Having been found incompetent, criminal proceedings can only be resumed if a qualified director “certifies” that a defendant has regained
At any restoration hearing defendant must be represented by counsel. (
Moreover, after a court, at a restoration hearing, finds a defendant competent the court has “a continuing duty to monitor for substantial evidence” of defendant incompetence. (George, Criminal Trial Judges’ Benchbook, supra, § 3.1, p. 131;
Finally, we perceive no constitutional difference in the burden of proof at an initial competency hearing (
2. Defendant contends there is insufficient evidence of two rapes.
“Under
Since the trial court expressly found “there was a separate act involved” in the two rapes, our task is to determine if substantial evidence supports that finding. We conclude it does.
The victim testified that the first act occurred while she was on the couch, lying on her back, with the “unusually heavy” defendant atop her. “After that act was completed” defendant turned the victim over and vaginally penetrated the victim from the rear. Although the victim did not expressly describe a penile withdrawal separating the two acts of intercourse, the scene she did describe vividly and sufficiently implies such a withdrawal.
3. Defendant contends the trial court erred in separately punishing him for two rapes.
Our Supreme Court has recently and dispositively answered defendant‘s contention: “[S]ection 654 does not bar multiple punishment simply because numerous sex offenses are rapidly committed against a victim with the ‘sole’ aim of achieving sexual gratification.” (People v. Harrison, supra, 48 Cal.3d 321, 325.)
4. Defendant contends the trial court erred in imposing separate punishment for each sexual offense gun use (
We need not consider whether or not
If defendant had a common intent in committing the burglary and the sex offenses,
The trial court found “[t]he crimes and their objectives were predominantly independent of each other . . . the burglary[‘s] . . . ultimate goal was larceny.”
Substantial evidence supports the finding. Almost immediately after entering the victim‘s apartment defendant “wanted to know if [she] had any money.” Only after the victim said she had no money did the defendant state “if he couldn‘t take from [her] he was going to take of [her].” And, in fact, the defendant did steal property from the victim: her TV, jewelry box, tuner, and speakers. Since there is substantial evidence defendant‘s intent at the time of the burglary was to steal, he may be punished for both burglary and the sex offenses. (People v. Green (1985) 166 Cal.App.3d 514 [212 Cal.Rptr. 451].)
6. Defendant contends the burglary great bodily injury enhancement must be stricken.
Defendant correctly argues that the injuries inflicted by the two gunshots cannot be relied upon to sustain the burglary great bodily injury enhancement. It was those injuries which supported the attempted murder great bodily injury enhancement, and
Defendant also correctly observes that the sex offenses cannot support the subject enhancement. However traumatic they must have been, there was no evidence of physical injury. (People v. Caudillo, supra, 21 Cal.3d 562, 587-588.) Moreover, defendant received separate punishment for each sex offense. (
Defendant then concludes, incorrectly, that the only injuries which may support the subject enhancement were those inflicted inside the victim‘s apartment. The law is otherwise.
“In considering the words of a statute, an appellate court is required to read the enactment in the light of the objective sought to be achieved by it as well as the evil sought to be averted. In enacting section 12022.7, the clear intent of the Legislature was to deter infliction of serious bodily injury on victims of burglary, robbery and other felonies . . . . Since human experience teaches that a person who has committed an offense will attempt to escape from its situs and since the risk of violent confrontation and consequent injury is at least as great during the course of flight as during the perpetration of the crime itself, for the purposes of section 12022.7, offenses committed during escape from the scene of the crime must be deemed acts in the commission of the crime. The conclusion reached by us is in harmony with the existing case law which in analogous situations (e.g., burglary, robbery), held that the crime is not complete until the felon has won his way to a place of temporary safety.” (Citations omitted.) (People v. Johnson (1980) 104 Cal.App.3d 598, 608 [164 Cal.Rptr. 69]; see also People v. Chavez (1951) 37 Cal.2d 656, 669-670 [234 P.2d 632]; People v. Salas (1972) 7 Cal.3d 812, 823-824 [103 Cal.Rptr. 431, 500 P.2d 7 [58 A.L.R.3d 832]]; People v. Kendrick (1961) 56 Cal.2d 71, 14 [14 Cal.Rptr. 13, 363 P.2d 13]; People v. Eaker (1980) 100 Cal.App.3d 1007, 1012 [161 Cal.Rptr. 417]; People v. Fuller (1978) 86 Cal.App.3d 618, 622-624 [150 Cal.Rptr. 515].)
When defendant departed from the victim‘s apartment the “commission” of the burglary, for
Therefore, in determining whether defendant inflicted “significant or substantial physical injury” on the victim we consider injuries inflicted within and without her apartment, excluding the gunshot wounds.
If the injuries are more than “transitory and short-lived bodily distress” they “will qualify as ‘great bodily injury.‘” (34 Cal.3d at p. 107)
The question then is, does the following constitute substantial evidence of more than “transitory and short lived bodily distress“: the defendant strangled the victim with her scarf tight enough to nearly cause her to pass out; she felt herself choking; her left eye started swelling and her nose started bleeding; she couldn‘t breathe; she felt pain around her neck and saw blood; blood was all over her face; when she was forced from her house she was still suffering from the head injuries she received in the closet; when she lay on her stomach in the van she felt a strong blow on her head; it produced a big lump on the back of her neck; she momentarily lost consciousness; she then went into “very excruciating pain“; the wound bled; when she then crawled to the front seat she was in “really bad pain“; as defendant drove fast and erratically she wasn‘t looking because she was in a lot of pain and kept her eyes closed; she bled a lot in the van; when defendant later stopped the van she was in so much pain that she wasn‘t looking around; when defendant opened the passenger door she fell to the concrete or asphalt-like ground; she was in pain when she fell to the ground; defendant grabbed her by one arm and dragged her away from the van; she sustained a dark purple line across her neck from the strangulation; her eyes were all red and her face was very bruised.
Our answer is yes. (See People v. Lopez (1986) 176 Cal.App.3d 460, 463-465 [222 Cal.Rptr. 83].) Defendant‘s contention is without merit.
DISPOSITION
The judgment is affirmed, as modified.16
Lillie, P. J., concurred.
JOHNSON, J., Concurring and Dissenting.—I concur in parts 2 through 6 of the majority opinion.
In California, a person cannot be tried while mentally incompetent. (
At the original competency hearing in this case defendant Mixon successfully rebutted the presumption of competence. He was adjudicated incompetent to stand trial and was committed to a state mental facility for treatment and further evaluation. After officials at the state mental hospital certified Mixon had regained competence the court held a second competency hearing. At this restoration of competency hearing, the court, applying the presumption of competence contained in section 1369 subdivision (f), held defendant failed to satisfy the burden of proving his incompetence by a preponderance of the evidence and therefore adjudicated Mixon competent to stand trial. After hearing all the evidence the trial court quoted from section 1369, subdivision (f) as follows: “It shall be presumed that the defendant is mentally competent unless it is proved by a preponderance of the evidence that the defendant is mentally incompetent.”
Then the court stated: “I find for the purposes of this hearing that burden of proof has not been met and that the defendant is competent, and, accordingly, that he will proceed to trial.”
¹All future references are to the Penal Code unless otherwise noted.
Whether a defendant can constitutionally be required to prove incompetency at the initial competency hearing is the subject of debate among courts and commentators.² California follows the minority view due process is not violated by requiring a defendant initially to prove his own incompetence. (People v. Medina (1990) 51 Cal. 3d 870 [274 Cal.Rptr. 849, 799 P.2d 1282].) (See also State v. Chapman (1986) 104 N.M. 324 [721 P.2d 392, 395-396]; Lowenfield v. Phelps (5th Cir. 1987) 817 F.2d 285, 294; State v. Pedersen (Iowa 1981) 309 N.W.2d 490, 496; Wallace v. State (1981) 248 Ga. 255 [282 S.E.2d 325, 330]; Spencer v. Zant (11th Cir. 1983) 715 F.2d 1562, 1567; White v. Estelle (5th Cir. 1982) 669 F.2d 973, 975.)
In this case, however, we are not considering an initial determination of incompetency under section 1369. This case deals with restoration of competency under section 1372. Here, defendant had already been found incompetent by a preponderance of the evidence at an initial competency hearing held pursuant to section 1369 at which the presumption of competency was rebutted.
By its terms the presumption of competency contained in section 1369 only applies at an original competency hearing. It is not incorporated by reference into restoration hearings under section 1372. (See People v. Murrell (1987) 196 Cal.App.3d 822, 826 [242 Cal.Rptr. 175].) Thus it is not necessary to address the constitutionality of sections 1369 or 1372, but rather to determine where, as a matter of judicial rule, the burden of proof should lie in a restoration hearing under section 1372.
Contrary to the view expressed by the majority, this case does not turn on whether the state or the defendant is the “moving party” at the hearing on
²The majority of courts have held that once doubt about a defendant‘s competence to stand trial has been raised, due process requires the prosecution to shoulder the burden of proving defendant competent. (See United States ex rel. Bilyew v. Franzen (7th Cir. 1982) 686 F.2d 1238, 1244-1245; People v. Bender (1960) 20 Ill.2d 45, 53-54 [169 N.E.2d 328, 332]; United States v. Hollis (3d Cir. 1977) 569 F.2d 199, 205; United States v. DiGilio (3d Cir. 1976) 538 F.2d 972, 988; Brown v. Warden, Great Meadow Correctional Facility (2d Cir. 1982) 682 F.2d 348, 349; United States v. Makris (5th Cir. 1976) 535 F.2d 899, 906; Estock v. Lane (7th Cir. 1988) 842 F.2d 184, 188; United States v. Zovluck (S.D.N.Y. 1977) 425 F.Supp. 719, 721; United States v. Blohm (S.D.N.Y. 1984) 579 F.Supp. 495, 499; United States ex rel. Bornholdt v. Ternullo (S.D.N.Y. 1975) 402 F.Supp. 374, 377; State v. Heger (N.D. 1982) 326 N.W.2d 855, 858; Commonwealth v. Crowley (1984) 393 Mass. 393 [471 N.E.2d 353, 357-358]; Diaz v. State (Del. 1986) 508 A.2d 861, 863; People v. McCullum (1977) 66 Ill.2d 306 [362 N.E.2d 307, 310]; State v. Bertrand (1983) 123 N.H. 719 [465 A.2d 912, 916]; State v. Pruitt (1984) 18 Ohio. App.3d 50 [480 N.E.2d 499, 506].)
Where the burden of proof should fall in a restoration of competency hearing is a question of first impression in California. For the reasons set forth below I have concluded the burden should rest with the People. I do not rest this conclusion on constitutional grounds for I find adequate precedent in existing case law and well-accepted rules of jurisprudence.
One very obvious reason the burden of proof should lie with the prosecution is that it is inconsistent to presume a defendant is competent when the court has previously found him to be incompetent. It is a well-established principle of law that things once proven to exist in a particular condition are presumed to continue in that condition until the contrary is proven. (Lux v. Haggin (1886) 69 Cal. 255, 381 [10 P. 674].) This principle is codified in
In In re Franklin (1972) 7 Cal.3d 126 [101 Cal.Rptr. 553, 496 P.2d 465], our Supreme Court explained the reason for applying this presumption for mental capacity saying, “the fact that defendant must [initially] prove his insanity by a preponderance of the evidence constitutes ‘a very solid basis upon which the presumption of continuing mental illness may rest.‘” (Citation omitted.) The court went on to observe, “it is the general rule that when insanity has been adjudicated it is ‘presumed to continue unless the contrary is shown.‘” (Id. at p. 141, fn. 9, quoting In re Zanetti (1949) 34 Cal.2d 136, 138 [208 P.2d 657]; see also In re Dennis (1959) 51 Cal.2d 666, 673-674 [335 P.2d 657].)
This principle, that a mental state found to exist is presumed to continue to exist until the contrary is proved, has been applied by the courts of other jurisdictions at hearings on the restoration of competency to stand trial.
The reason for placing the burden on the state was explained in an earlier opinion by the Texas Court of Appeals: “We hold that in a case where the defendant has been previously found incompetent, the presumption of competency does not prevail, and the State has the burden of proving competency by a preponderance of the evidence unless there has been no objection by the defendant to the report from the head of [the commitment facility]. It is the State which is asserting that a condition has changed and therefore they [sic] should have the burden of proving it. By objecting, the defendant is relying on the status quo of the prior adjudication where he did have the burden of proof.” (Villarreal v. State (Tex.Ct.App. 1985) 699 S.W.2d 364, 366.)
The reasoning by the Texas courts requiring the state to prove restoration of competency is very similar to the reasoning behind the presumption of continued insanity expressed by our Supreme Court in In re Franklin, quoted, ante, page 1492.
In Perkins v. Mayo (Fla. 1957) 92 So.2d 641, 644, the Florida Supreme Court granted a petition for writ of habeas corpus on the ground the trial court accepted defendant‘s guilty pleas and imposed sentence despite having found the defendant incompetent to stand trial. The court stated: “It is true that all persons are presumed to be sane but when one is adjudicated to be insane, the presumption is that he continues in that state until shown that sanity has returned. One cannot be tried, sentenced or executed while insane. Petitioner having been adjudicated mentally incompetent February 15, 1949, he is presumed to remain in that state until a proper hearing is held and he is adjudicated to be mentally competent . . . .” (Citations omitted.) (Accord: People v. Swallow (1969) 60 Misc. 2d 171 [301 N.Y.S.2d 798, 801-802]; Blunt v. United States (D.C. Cir. 1957) 244 F.2d 355, 360, fn. 17.)
A related reason for placing the burden of proof on the prosecution is that absent specific allocation by the Legislature, the party asserting the affirmative of an issue usually carries the burden of proving that assertion. (
In its commentary on
The parties’ knowledge concerning the particular fact in issue and the relative availability of the evidence to the parties were the principal factors which led our Supreme Court to hold the burden of initially proving incompetency should rest with the defendant. (People v. Medina, supra, 51 Cal.3d at p. 885.) The court expressed the view that:
“In determining the propriety of a particular proof allocation, a critical factor is the extent to which either party has access to the relevant information. As stated in Morrison v. California (1934) 291 U.S. 82, 89 [78 L.Ed.2d 664, 669-679, 54 S.Ct. 281], due process generally allows shifting to the defendant the burden of proving his affirmative defenses if, ‘upon a balanc-
Unlike the situation at the initial competency hearing, when a restoration of competency hearing is held the state has had custody and control over the defendant for a considerable period of time—almost two years in the present case. Given the state‘s 24-hour-a-day access to the defendant over a substantial period of time, state hospital personnel have had ample opportunity to observe, test and interview the defendant. At the restoration hearing it is the defense, not the prosecution, which is severely limited in its access to the type of evidence necessary to satisfy the burden of proof as to the defendant‘s present competency. Indeed, the People concede in their brief in this appeal that the state “unquestionably [has] the most evidence likely to establish the propriety of the certification [of competency].”
The record in this case shows the People‘s expert, Dr. Riley, spent between 30 and 40 hours with the defendant while the defendant was committed to Atascadero State Hospital and that Dr. Riley relied heavily on this exposure to defendant in rendering his opinion defendant was competent to stand trial. In contrast, defendant‘s expert, Dr. Eisenberg, was able to spend only three hours with defendant in preparing his evaluation. I do not suggest this disparity in the time spent with defendant raises a due process issue or that it entitles Dr. Riley‘s opinion to greater weight on the issue of competency than Dr. Eisenberg‘s opinion. My point is simply that given the state‘s greater opportunity to gather evidence on the issue of competency it is reasonable to put the burden of proving competency on the state at the restoration hearing.
Placing the burden of proving restoration of competency on the People promotes society‘s interest that an incompetent defendant will not be compelled to stand trial in cases where the evidence is evenly balanced between competence and incompetence. It is not true, as the People contend, the risk of an erroneous finding of competency is no greater at the restoration hearing than at the initial competency hearing. At the initial competency hearing the prosecution is severely limited in its access to evidence on the issue of competency. But, at the restoration hearing the circumstances are
The final factor mentioned by the Law Revision Commission is the probability of the existence or nonexistence of the fact to be proved; in this case, competency to stand trial. At the initial hearing the defendant is presumed competent—a presumption clearly in keeping with probability. However, once the defendant has been adjudicated incompetent the probability is that he remains so. (See conc. opn., ante, pp. 1492-1494.) Accordingly, the burden of proof should follow the probabilities and rest with the People on the question of competency.
Two additional points raised by the People require only brief discussion. Accepting the People‘s view would mean the certification of the state mental health facility attesting to defendant‘s competency should be treated as presumptively valid and the burden should be on the defendant to convince the court the state‘s assessment is wrong. The People cite no authority for the proposition its expert‘s opinions are presumed correct by virtue of their being offered by the People. The law is clearly to the contrary. (See
In conclusion, a rule requiring the People to bear the burden of proving restored competency best effectuates the intent of the Legislature and the interests of society. Under section 1369 of the Penal Code, once a doubt
Appellant‘s petition for review by the Supreme Court was denied February 14, 1991. Mosk, J., and Broussard, J. were of the opinion that the petition should be granted.
Notes
“As used in this section, great bodily injury means a significant or substantial physical injury.
“This section shall not apply to murder or manslaughter or a violation of Section 451 or 452. The additional term provided in this section shall not be imposed unless the fact of great bodily injury is charged in the accusatory pleading and admitted or found to be true by the trier of fact.”