Opinion
F069354
05-30-2017
THE PEOPLE, Plaintiff and Respondent, v. JOHN LYNN BOLEN, Defendant and Appellant.
Thea Greenhalgh and Jonathan E. Berger, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VCF269550)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Darryl B. Ferguson, Judge. Thea Greenhalgh and Jonathan E. Berger, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Defendant John Lynn Bolen was charged by amended information with willful, deliberate and premediated attempted murder of a peace officer (Pen. Code, §§ 664, 187, subd. (a)) (count 1) and assault on a peace officer with a semiautomatic firearm (§ 245, subd. (d)(2)) (count 2). The amended information further alleged enhancements to both counts for personal use of a firearm (§ 12022.53, subd. (b)) and personal discharge of a firearm (§ 12022.53, subd. (c)). Defendant pled not guilty and not guilty by reason of insanity (§ 1026).
Further statutory references are to the Penal Code unless otherwise noted.
The jury convicted defendant of both counts; found it true that the attempted murder was willful, deliberate and premediated, and defendant knew the victim was a peace officer engaged in the performance of his duties; and found it true, as to both counts, that defendant personally discharged a firearm (§ 12022.53, subd. (c)). In a bifurcated proceeding, the jury found defendant was sane at the time he committed the offenses.
Defendant was sentenced to a term of 15 years to life for attempted murder, plus an additional consecutive term of 20 years for the firearm enhancement (§ 12022.53, subd. (c)), and to the aggravated term of nine years for assault on a peace officer with a firearm, plus an additional consecutive term of 20 years for the firearm enhancement (§ 12022.53, subd. (c)), stayed pursuant to section 654, for a total indeterminate prison term of 35 years to life.
On appeal, defendant challenges his convictions for attempted murder and assault as unsupported by substantial evidence. He also claims the trial court erred in failing to instruct the jury sua sponte that it was required to reject his mental impairment and voluntary intoxication defenses unanimously, and it also erred under Pate v. Robinson (1966) 383 U.S. 375 (Pate) by failing to hold a hearing on his competency pursuant to section 1368. Finally, defendant claims the jury's finding he was sane at the time he committed the crimes is not supported by substantial evidence.
We reject defendant's claim that his convictions are not supported by substantial evidence and we affirm the convictions. We also reject defendant's argument that the trial court committed instructional error. However, we conclude the trial court erred in failing to hold a competency hearing under section 1368 prior to the sanity phase of defendant's trial, and we reverse the sanity finding and remand the matter to the trial court for further proceedings. Given our determination that the sanity finding must be reversed, we do not reach the claim that the jury's finding of sanity was unsupported by substantial evidence.
FACTUAL SUMMARY
I. Prosecution's Case
In the late afternoon of June 19, 2012, Officer Jason McWilliams responded to a 911 call from an employee of a bicycle shop in Visalia. Defendant, who occasionally visited the shop and was known to the employee, was there and appeared drunk. He smelled of alcohol, his balance was unsteady, his speech was slurred and he raised his voice a few times, causing customers in the shop to appear "leery" of him. The employee saw defendant's truck parked in the parking lot, and he called 911 because he was concerned defendant was going to endanger others by getting behind the wheel while intoxicated.
Officer McWilliams had been friends with defendant for approximately 15 years. Defendant also appeared intoxicated to Officer McWilliams, who observed his speech was slurred, his gait was unsteady and he was acting "pretty boisterous." Officer McWilliams spoke with defendant in the parking lot by his truck and eventually convinced him to allow himself to be driven home, the only other alternative being jail. Officer McWilliams then drove defendant home in his patrol car while the owner of the bicycle shop drove defendant's truck to his home for him.
Defendant was a firearms enthusiast who was very proficient with guns. When they arrived at defendant's house, he wanted Officer McWilliams, who had been a range master at the gun range and shot with defendant in the past, to come inside and look at some firearms. Officer McWilliams declined, explaining he was on duty. Eventually, he had to forcefully tell defendant to get out of his patrol car.
Subsequently, defendant called 911 and asked the dispatcher to send Officer McWilliams to his house. The dispatcher informed him she did not know if she could send McWilliams over but she would send someone.
Officer William Hansen was dispatched to defendant's house shortly after 6:00 p.m. During this time, defendant was talking to his girlfriend, Havena Johnson, on the phone. Defendant told Johnson he was going to kill an officer repeatedly during the phone call. As Johnson remained on the phone with him, Officer Hansen arrived and rang the doorbell.
A three-way conversation between defendant, Johnson and defendant's sister, Lorie Delima, was initiated. The call was recorded on Delima's voicemail after she failed to answer, and she subsequently turned over the recording to the police.
Defendant's small dog was outside at the time, barking at Hansen. Defendant opened the door wearing a bulletproof vest and armed with a semiautomatic handgun in his right hand, aimed at the floor. Hansen asked defendant how he was doing. Defendant stepped into the threshold and, smiling peculiarly, began raising his gun. As Hansen was telling defendant to drop the gun and defendant's gun was raising up between Hansen's shin and thigh, Hansen drew his gun and began firing. He heard what he thought were his bullets hitting defendant, and defendant returned fire. Hansen turned to his left and ran before stumbling and falling on the lawn. Defendant and Hansen fired at one another, and Hansen saw rounds striking the ground in front of his face and heard rounds flying by close to his head and hitting the ground next to him. He was able to get up and he ducked behind a tree without getting hit.
Hearing the sound of gunfire, several of defendant's neighbors went to the fronts of their houses. Brianna Davis testified she saw defendant in front of his house wearing a bulletproof vest and holding a gun. Officer Hansen yelled at her, her sister, and her boyfriend to get back inside their house, and she saw defendant kick his dog inside his house.
Mark Perry, the other neighbor who testified, observed defendant outside his house bending over his dog and asking twice if the dog was okay. A day or two later, Perry noticed a bullet hole on the edge of his front door and he found a projectile on the cement just outside the door.
None of defendant's gunshots hit Officer Hansen, but he pulled his radio out of its holder while he was down on the lawn and he later saw a strike on the inside of the leather radio holder he had not noticed before the shooting. Defendant retreated inside his house and, at some point after his call with Johnson ended, he called 911 again, reporting he had been shot twice in the stomach.
II. Defense Case
A. Dr. Terrell's Testimony
Howard Terrell, M.D., a board certified psychiatrist and forensic psychiatrist, testified for the defense. Dr. Terrell diagnosed defendant with severe bipolar I disorder with psychotic features, along with severe alcohol abuse, opioid abuse and anxiolytic abuse. He explained bipolar disorder is a brain disorder that causes severe mood swings. It affects approximately 1 percent of the world population, but is treatable with medication. The disorder is marked by episodes of mania, where the individual has elevated moods of unusual happiness or euphoria, or anger, belligerence and abusiveness. The tendency to have rapid thoughts and rapid speech accompanies this phase, along with poor judgment, impulsivity, high energy, hyperproduction and ability to function on little sleep. This phase alone can constitute bipolar disorder, but a lot of individuals also experience an opposite phase where they "crash down" into severe depression and low energy. During this crash phase, individuals feel despondent, depressed and suicidal, and they may sleep 12 to 16 hours at a time rather than eight.
Dr. Terrell testified that the term "[p]sychotic" means a departure from reality, through hallucinations, delusions or paranoia. He also testified that Johnson, defendant's girlfriend, told him defendant believed he had liver cancer and had only three months to live, a belief which appeared to be genuinely held but was untrue and an example of defendant's psychosis.
Defendant was abusing Norco and Xanex, leading to Dr. Terrell's diagnosis of opioid and anxiolytic abuse, respectively. Dr. Terrell testified that although defendant was prescribed Norco for pain, he was taking more than prescribed and using it to medicate not only physical pain but emotional pain, which is "very common in severely ill people, especially bipolars." Defendant was also abusing Xanex (the brand name for the generic Alprozolam), using it not only for its prescribed purpose—anxiety—but along with alcohol to get high.
Dr. Terrell explained that taking Xanex along with alcohol in particular leads to a synergistic effect. One or the other results in a certain level of high, but taken together the resulting high is much greater. Dr. Terrell also explained that high levels of alcohol alone can cause blackouts and high levels of Xanex can cause memory problems, but taken together there is an even greater increase in blackouts.
Defendant's blood was drawn for testing approximately four hours after the crime. His blood-alcohol content was 0.23 percent, almost triple the legal limit of 0.08 percent. He had no measurable amount of hydrocodone in his blood, but he had a moderate level of Xanex and a fairly high therapeutic level of Ambien (the brand name for the generic Zolpiden) in his system. As a result, Dr. Terrell opined defendant was under the influence of a high alcohol level and Xanex, which would in combination synergize to cause a much higher level of impairment. In addition, Ambien can cause "impairment and mentation." Combined with defendant's serious depression, suicidal thoughts and mental disorder, Dr. Terrell testified it was a "perfect storm of severe factors that would severely affect his mental functioning."
Hydrocodone is the active ingredient in Norco, one of the prescription drugs defendant was abusing.
Defendant was a chronic heavy drinker and Dr. Terrell testified that an individual who drinks up to a quart or more of alcohol per day, as defendant did, would build up a tolerance and be able to engage in activities such as walking, talking and golfing, while a less experienced drinker would pass out or go to sleep. At a blood-alcohol level of 0.23 percent, however, judgment would be impaired in even a long-time heavy drinker and there would be increased impulsivity. Dr. Terrell also testified that the body burns off alcohol and one would expect blood-alcohol content to go down hour by hour.
Regarding defendant's history, Dr. Terrell related that in January 2012, defendant was taken to a hospital by ambulance and admitted for observation. He had been drinking heavily and taking more Norco than he was prescribed; and he had suicidal "ideations," a phase in which the individual is at greater risk for suicide than in the suicidal "ruminations" phase. Dr. Terrell testified that those in the suicidal ideation phase have a plan, and those who have a specific plan of "blowing their brains out with a gun," as defendant stated he did, are severe cases warranting referral to a mental health expert.
Defendant's girlfriend also told Dr. Terrell he had talked about suicide and wanting to die the entire seven- to eight-month period they had been together leading up to the crime, and she said defendant told her he was going to kill a cop so a cop would kill him.
In April 2012, several months before the crime, defendant was on Prozac, prescribed by his primary care physician. Dr. Terrell testified Prozac is an antidepressant that is also used for obsessive compulsive disorder. While it can be beneficial for bipolar disorder, it can also have potential adverse effects. Defendant was also on Xanex, an antianxiety medication which can have "severe reverse effects," Norco, a "very potent" pain reliever, and Ambien, which is used to treat insomnia. Defendant was drinking more alcohol as well, and his doctor diagnosed him with unspecified anxiety disorder and alcohol abuse. His treatment plan specified the discontinuation of Prozac, continuation of Xanex and addition of Lamictal, an antiseizure medication that is helpful to treat depression but less likely to cause manic episodes.
Prior to Dr. Terrell's diagnosis, defendant had "[u]nfortunately" never been diagnosed with bipolar disorder and he needed a different treatment plan than that prescribed by his primary care physician. Dr. Terrell testified that defendant's case was "very, very complex and difficult ... even for a skilled psychiatrist," and defendant's primary care physician was probably focused more on the alcohol abuse, anxiety and depression.
Dr. Terrell described defendant as "a very mentally ill man who also had a severe problem with alcohol," and was of the opinion that defendant exhibited symptoms of his mental illness as far back as the 1980's, but he did not receive correct treatment for his illness until he was jailed after the crime. Dr. Terrell did not believe defendant was malingering to exaggerate his mental illness following his arrest, and he testified defendant was severely impaired as a result of his mental illness and drug and alcohol abuse.
Defendant was placed on Seroquel at the jail, which is a "very powerful psychotropic medication," "frequently used and frequently beneficial in the treatment of bipolar disorder." Defendant seemed to be doing well on it when he was interviewed by Dr. Terrell.
On cross-examination, Dr. Terrell testified that a high level of alcohol impairs judgment and mentation but it does not prevent people from acting intentionally or undertaking goal oriented behavior, unless they are rendered comatose or unconscious. Dr. Terrell explained that being highly intoxicated with bipolar disorder does not prevent people from acting intentionally, including deciding they dislike someone, setting a trap for someone, deciding to kill someone or undertaking actions to kill someone. Further, someone under the influence of drugs and alcohol and with bipolar disorder is capable of intentionally shooting to kill.
B. Lorie Delima's Testimony
Defendant is one of six siblings and the sibling to whom he was closest, Lorie Delima, testified. In 2012, Delima saw defendant at least once a week and spoke with him several times a week. She testified he was under the influence of alcohol every time she saw him.
After defendant called an ambulance for himself in January 2012, he called Delima and told her he was not feeling well. She met him at the hospital. She described him as mentally and physically weak, which was disturbing because it was unlike him. At the hospital, she could tell he was under the influence of something. He stayed two nights and was then released.
Delima testified that following his release from the hospital, he got worse and worse. Usually "a very on-time control person" who used to arrive at work long before everyone else, he stopped showing up for work, or showed up at noon if at all. Delima testified defendant went from being a very structured person to someone without any structure, and his "world was becoming smaller and smaller," with him rarely leaving his house except for work.
Defendant and his brother operated a transmission business.
She also testified of an incident a few months before the crime. Defendant called Delima and was despondent. He was talking about killing himself so Delima and other friends and family went to his house. Defendant was on his bed with a gun next to him. He was intoxicated and slurring his words. Delima had not ever seen him like that before. She was able to take the gun from the bed and she gave it to a friend who was at the house.
At some point within approximately one month of the crime, defendant checked himself into a rehabilitation facility. He only stayed four days and was not sober for long, as he was drinking again when Delima saw him Saturday and Sunday of Father's Day weekend, which was shortly before the crime.
On Saturday of Father's Day weekend, defendant met Delima and her husband for lunch. Delima had encouraged him to get out of the house and ride bicycles with them, and she told him they were biking to the restaurant. Defendant rode his bicycle to meet them and arrived intoxicated. Delima could smell the alcohol on his breath and he was slurring his words. She testified "he was so out of it I asked him how he even made it." Although he made it, he had wrecked the bike on the way there, and as they were getting up to leave after lunch, he fell in the bushes in front of the restaurant.
The next day, defendant drove to Delima's house. He was rambling; he was speaking rapidly and his words were coherent, but he was not making sense, and he brought his own vodka and orange juice to her house. She tried to convince him not to drive home, but defendant "did what he wanted." When she was cleaning the following day, she found a bottle of his pills that had fallen out of his pocket on the couch.
DISCUSSION
I. Guilt Phase
A. Sufficiency of the Evidence Supporting Convictions
During trial, defendant presented evidence of his mental impairment and voluntary intoxication. (§§ 28, 29.4.) He argues on appeal that his attempted murder conviction is not supported by substantial evidence given the "overwhelming" evidence of his mental impairment and voluntary intoxication, and his assault conviction is also not supported by substantial evidence in light of the "overwhelming" evidence of his voluntary intoxication. As to his assault conviction, he further argues that given his mental illness, he was trying to commit suicide by cop and his mere reckless or criminally negligent actions are not enough to support his conviction for assault.
As the People point out, they bore the burden at trial of proving the elements of the crimes beyond a reasonable doubt; they did not bear a burden of disproving defendant's defense evidence. The People acknowledge there was evidence of defendant's impairment, but contend there was "also ample evidence he was well in control of his faculties," supporting his conviction for attempted murder. Regarding the assault conviction, the People contend that assault with a deadly weapon is a general intent crime and defendant's actions against Officer Hansen overwhelmingly support his conviction, and voluntary intoxication is a not defense to assault.
We consider each conviction in turn but first address the ground on which defendant's evidence of mental impairment and voluntary intoxication is admissible in light of his repeated arguments that the prosecution failed to "overcome" his evidence of impairment "beyond a reasonable doubt."
1. Admissibility of Mental Impairment and Voluntary Intoxication Evidence
"The diminished capacity defense, which addressed an accused's 'general capacity or ability to form a specific intent or harbor a mental element of an offense,' was abolished in 1982." (People v. Reyes (1997) 52 Cal.App.4th 975, 982.) As a result, mental impairment and voluntary intoxication are no longer affirmative defenses, as defendant acknowledges. (Ibid.) Now, "[e]vidence of mental disease, mental defect, or mental disorder is admissible solely on the issue of whether or not the accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged" (§ 28, subd. (a)), and "[e]vidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought" (§ 29.4, subd. (b)). Sometimes referred to as "'diminished actuality'" (People v. Elmore (2014) 59 Cal.4th 121, 139; accord, People v. Mills (2012) 55 Cal.4th 663, 671), evidence of mental impairment or voluntary intoxication is admissible "to negate an element of the crime which must be proven by the prosecution" (People v. Reyes, supra, at p. 982; accord, People v. Clark (2011) 52 Cal.4th 856, 880, fn. 3; see People v. Saille (1991) 54 Cal.3d 1103, 1116-1117). It is not admissible to "negate the capacity to form any mental state ...." (§§ 28, subd. (a), 29.4, subd. (a).)
2. Standard of Review
On appeal, the relevant inquiry governing a challenge to the sufficiency of the evidence "'is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" (People v. Nguyen (2015) 61 Cal.4th 1015, 1055, cert. den. (2016) .) "The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Zamudio (2008) 43 Cal.4th 327, 357.) "In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence." (Ibid.) "'[I]t is the jury, not the appellate court which must be convinced of the defendant's guilt ....'" (People v. Nguyen, supra, at pp. 1055-1056.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict." (People v. Zamudio, supra, at p. 357.)
3. Attempted Murder Conviction
a. Elements
Attempted murder requires specific intent to kill, or express malice, "'and the commission of a direct but ineffectual act toward the accomplishing the intended killing.'" (People v. Smith (2005) 37 Cal.4th 733, 739.) Express malice is shown when the defendant "'either desires the victim's death, or knows to a substantial certainty that the victim's death will occur.'" (People v. Houston (2012) 54 Cal.4th 1186, 1217.) "[E]vidence of motive is often probative of intent to kill," but it "is not required to establish intent to kill." (People v. Smith, supra, at p. 741.) Intent "may in many cases be inferred from the defendant's acts and the circumstances of the crime." (Ibid.)
Unlike murder, "attempted murder is not divided into degrees, but the sentence can be enhanced if the attempt to kill was committed with premeditation and deliberation." (People v. Gonzalez (2012) 54 Cal.4th 643, 654.) More than a specific intent to kill is required to support a finding of deliberation and premeditation. (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) "'Deliberation' refers to careful weighing of considerations in forming a course of action; 'premeditation' means thought over in advance." (Ibid.) "'The process of premeditation and deliberation does not require any extended period of time. "The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly...." [Citations.]'" (Ibid.)
"In People v. Anderson (1968) 70 Cal.2d 15, 26-27 [(Anderson)], [the Supreme Court] reviewed earlier decisions and developed guidelines to aid reviewing courts in assessing the sufficiency of the evidence to sustain findings of premeditation and deliberation. [Citation.] [The court] described three categories of evidence recurring in those cases: planning, motive, and manner of killing." (People v. Halvorsen (2007) 42 Cal.4th 379, 419-420.) "[H]owever, '[u]nreflective reliance on Anderson for a definition of premeditation is inappropriate.'" (People v. Koontz, supra, 27 Cal.4th at p. 1081; accord, People v. Casares (2016) 62 Cal.4th 808, 824.) The "guidelines are descriptive and neither normative nor exhaustive, and ... reviewing courts need not accord them any particular weight." (People v. Halvorsen, supra, at p. 420; accord, People v. Casares, supra, at p. 824.).)
b. Analysis
The prosecution was required to prove the elements of count 1—willful, deliberate and premeditated attempted murder of a peace officer—beyond a reasonable doubt. In determining whether defendant actually formed the requisite specific intent to commit the offense, defendant's evidence of his mental impairment and voluntary intoxication was before the jury for its consideration. We are unpersuaded by defendant's argument that "[b]ecause of the massive amount of convincing defense evidence presented here, no rational juror could have found proof beyond a reasonable doubt [he] intentionally committed attempted premeditated murder." To the contrary, substantial evidence supports the conviction.
Defendant placed a call to 911 and requested Officer McWilliams be sent to his house. Although the dispatcher could not assure defendant that Officer McWilliams would be sent, she said an officer would be sent to speak with him. At some point prior to Officer Hansen's arrival at his front door, defendant put on a bulletproof vest and armed himself with a loaded semiautomatic handgun. After his call to 911 but prior to Officer Hansen's arrival, defendant and his girlfriend were engaged in a phone conversation. His sister's voicemail recorded the following conversation between them:
The parties stipulated the transcript of the phone call is substantially accurate.
"Johnny Bolen: What?
"Havana Johnson: Um. Tell—what did you just say about the police?
"JB: I guess I'm gonna kill this [motherf----r].
"HJ: Okay. So, you've—
"JB: I'm gonna kill'm.
"HJ: —dialed 911 and you're gonna—you—why did you dial 9—
"JB: (unintelligible)
"HJ: —11?
"JB: Because I'm gonna kill this [motherf----r]. Now, I—he dang well well wanted to—and they gave me a ride home. Okay? And I wanted shoot'm still.
"HJ: They gave you—
"JB: (unintelligible)—
"HJ: —a ride home. You weren't—
"JB: —(unintelligible)—
"HJ: You weren't driving,—
"JB: (unintelligible)
"HJ: —were you?
"JB: I'm gonna kill him. (unintelligible)—
"HJ: Were you walking or driving?
"JB: I'm at home. I'm gonna kill that [motherf----r] right now.
"HJ: I don't—
"JB: (unintelligible)—
"HJ: —know what you're talking about. But you need—
"JB: I'm gonna—
"HJ: —(unintelligible)—
"JB: —kill eh—I' m gonna kill (unintelligible)—
"HJ: You're not gonna kill anybody. You're not going to kill anybody. You need to—
"JB: You wanna bet? I'll—
"HJ: (unintelligible)—
"JB: —bet you right now. I—I (unintelligible).
"HJ: John.
"JB: (unintelligible)—
"HJ: John.
"JB: I'm gonna....
"HJ: You need to go to sleep.
"JB: You're gonna hear the gunshots
"HJ: You—we need to go—
"JB: (unintelligible)—
"HJ: —to sleep and—
"JB: —(unintelligible)
"HJ: —sleep this off.
"JB: I've got a gun
"HJ: (unintelligible)—
"JB: —(unintelligible)—
"HJ: John.
"JB: —(unintelligible) again, [motherf----r].
"HJ: Nobody's coming to your house. Just calm down.
"JB: Nah. I'm—
"HJ: (unintelligible)—
"JB: —gonna kill'm.
"HJ: You're not killing—
"JB: (unintelligible)
"HJ: —anybody.
"JB: You wanna bet?
"HJ: I—I already know. You're not killing anybody. That's not who you are. But you need to just calm down.
"JB: You're wrong.
"HJ: I'm not wrong.
"JB: (unintelligible) (doorbell sounding) There they are. There they are right now.
"HJ: Is there somebody at the door?
"JB: Yes. Now watch. Watch this.
"HJ: No. I'm [not] gonna watch anything. Lorie, you need to call your brother and get over there and see what the heck is going on, 'cause he's acting like he's lost his mind. Uh. We—
"JB: (unintelligible)—
"HJ: —(unintelligible). What?
"JB: That's what I said. I'm wanna—I'm wanna kill (unintelligible)—
"HJ: You're not gonna kill anybody. And why would you—
"JB: Wanna bet?
"HJ: —call to tell me you're gonna kill somebody knowing what I'm going through out here. I don't need this—
"JB: You wanna—
"HJ: —(unintelligible).
"JB: —bet?
"HJ: No.
"JB: You wanna bet?
"HJ: John! What—
"JB: Yeah.
"HJ: —are you doing?(end of digital recording)"
"Officer William Hansen: What's going on?
"JB: What's going on, brother?
"OWH: How's it going?
"JB: Good. How you doing?
"OWH: Put down your gun sir.
"JB: You know—(gunshots being heard) Oh, [f--k]! I'm hit. I'm hit too.
"HJ: Hello?
"JB: (unintelligible) been shot. I'm hit.
"HJ: Hello?! Hello?! Hello?!
"JB: (unintelligible) [f--k] me.
"HJ: Hello?!
"JB: Oh.
"HJ: Hello?!
"JB: You okay?
"HJ: Hello?!
"JB: Are you okay? (unintelligible) Oh. [F--k] me!
"HJ: Hello?! Hello?! Hello?! Hello! Oh, my God, Lorie.
"JB: (unintelligible)
"HJ: Hello?!
"JB: What?
"HJ: Um.
Although defendant was intoxicated and slurring his words, he clearly and repeatedly told Johnson he was going to kill an officer. At trial, defendant argued he was trying to commit suicide by cop, but the recorded portion of his conversation with Johnson does not include any express or implied representation to that effect. Instead, defendant repeatedly rebuffed Johnson's pleas that he was not going to do any such thing and that was not who he was as a person. After the doorbell rang, defendant told Johnson to "[w]atch this" and when she again told him he was not going to kill anyone, he replied, "You wanna bet?"
The record on appeal includes both an audio recording and a transcript of the call.
Defendant answered the door protected by the bulletproof vest and with a gun in his hand, pointed at the floor. He began raising the gun and as he was moving it upward between Officer Hansen's shin and thigh, Hansen drew his gun, fired at defendant and retreated. Defendant returned fire and Hansen testified he heard shots flying by his head, saw them hit the ground and observed a strike mark on his radio holster. After the exchange of gunfire, defendant twice asked his dog if the dog was okay before kicking him back inside the house.
There was some evidence presented that could arguably have supported an inference defendant was trying to commit suicide by cop, such as his general despondence and suicidal ideation, his act of raising the gun from the floor toward the officer rather than opening the door and immediately firing, and his failure to hit the officer despite being an excellent marksman. However, the jury was not required to draw that inference and there was strong evidence to the contrary that he intended to kill a police officer. (See People v. Bolin (1998) 18 Cal.4th 297, 331 ["Reversal ... is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'"]; accord, People v. Manibusan (2013) 58 Cal.4th 40, 87; People v. Lipsett (2014) 223 Cal.App.4th 1060, 1063.)
The jury was also not compelled by the evidence to conclude that defendant's mental impairment and/or voluntary intoxication prevented him from forming the specific intent to kill Officer Hansen. (People v. Bolin, supra, 956 Cal.4th at p. 331.) While defendant presented evidence of serious mental illness and voluntary intoxication in an effort to negate specific intent, Dr. Terrell also testified that an intoxicated, mentally ill person can still form the intent to kill, and there was strong evidence from which the jury could have reasonably concluded defendant acted with the requisite specific intent and did so willfully and with premeditation and deliberation.
Defendant's blood-alcohol content hours after the shooting was high at 0.23 percent, which may have explained why he missed Officer Hansen despite his marksman skills, but he was still ambulatory and talking. He carried on a conversation with Johnson in which he told her he had called 911 and although defendant's speech was slurred, he was not incoherent; he clearly and repeatedly stated his intention to kill an officer. As Johnson was on the phone, Officer Hansen rang the doorbell and defendant followed through with his threat to shoot. After exchanging gunfire, defendant said he was hit "too" and he had the presence of mind to ask his dog twice if the dog was okay.
Given all of the actions taken by defendant, we conclude the jury's finding that defendant had the specific intent to kill Officer Hansen is well supported by sufficient evidence.
We also conclude there is sufficient evidence that the attempted murder was willful, deliberate and premeditated. There is evidence of planning: defendant protected himself with a bulletproof vest, armed himself with a handgun, and lured an officer to his house by calling 911 before opening his front door to the officer and firing. There is also evidence regarding the particular manner in which the killing was attempted: defendant pointed his gun at the officer from a close distance, swept it up the officer's body and fired multiple shots at the officer, with some bullets flying by close to the officer's head as he fled and evidence of a bullet strike mark on the officer's radio holder. (People v. Thompson (2010) 49 Cal.4th 79, 114-115.)
The evidence of motive is not quite as strong, but there is evidence supporting the prosecutor's theory that defendant was offended because Officer McWilliams told him what to do. His sister testified he was a strong, narcissistic, in-control person who did what he wanted to do, and Dr. Terrell testified on cross-examination that people with bipolar disorder are frequently control freaks, especially in the manic phase. While defendant had a long-time friendship with Officer McWilliams, McWilliams testified that defendant wanted to know why police came to the bicycle shop and he finally agreed to be driven home because the unacceptable alternative was going to jail. Defendant then had to be ordered to get out of the patrol car with some force after trying unsuccessfully to get McWilliams to come in his house to look at weapons. Defendant subsequently called 911 and asked that McWilliams be sent to his house and he mentioned the ride home during the call.
The Anderson factors "'are not a sine qua non ... nor are they exclusive'" but, in this case, evidence of all three is present. (People v. Koontz, supra, 27 Cal.4th at p. 1081.) Given the time line of events and the actions taken by the defendant, we have no difficulty concluding that defendant's conviction for willful, deliberate and premeditated attempted murder is supported by substantial evidence.
4. Assault on Peace Officer with Firearm
Section 240 defines assault as "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another," and defendant was convicted of violating section 245, subdivision (d)(1), which provides that "[a]ny person who commits an assault with a firearm upon the person of a peace officer or firefighter, and who knows or reasonably should know that the victim is a peace officer or firefighter engaged in the performance of his or her duties, when the peace officer or firefighter is engaged in the performance of his or her duties, shall be punished by imprisonment in the state prison for four, six, or eight years."
Although defendant argues that his assault conviction is not supported by substantial evidence given the evidence of his voluntary intoxication, assault is a general intent crime and evidence of voluntary intoxication is not admissible "to negate the existence of general criminal intent." (People v. Atkins (2001) 25 Cal.4th 76, 81-82; accord, People v. Williams (2001) 26 Cal.4th 779, 788; People v. Mendoza (1998) 18 Cal.4th 1114, 1128; People v. Hood (1969) 1 Cal.3d 444, 458-459; People v. Lucero (2016) 246 Cal.App.4th 750, 758; People v. Cortes (2011) 192 Cal.App.4th 873, 908; People v. Jefferson (2004) 119 Cal.App.4th 508, 520.) This point was made by the People in their opening brief but, in reply, defendant merely reiterates the arguments made in his opening brief, which is that this evidence negated his intent as to both crimes. Defendant provides no authority for the proposition that the evidence is admissible as to assault or that we may disregard California Supreme Court authority and, accordingly, we reject his argument as contrary to law. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; accord, People v. Johnson (2012) 53 Cal.4th 519, 528; Stinnett v. Tam (2011) 198 Cal.App.4th 1412, 1431.)
We note the trial court, in reliance on defendant's citation to People v. Reyes, supra, 52 Cal.App.4th at page 983 and with the parties' agreement, stated its intention to instruct the jury that it could consider the evidence of defendant's voluntary intoxication in determining whether defendant knew or should have known Officer Hansen was a peace officer engaged in the performance of his duties. We express no opinion as to the correctness of this instruction, as any error in instructing the jury it could consider defendant's intoxication inured to defendant's benefit. (See People v. Hood, supra, 1 Cal.3d at pp. 458-459 ["the court should not instruct the jury to consider evidence of [the] defendant's intoxication in determining whether he committed assault with a deadly weapon on a peace officer"]; see also People v. Williams, supra, 26 Cal.4th at p. 788; People v. Finney (1980) 110 Cal.App.3d 705, 712-713; People v. Whalen (1973) 33 Cal.App.3d 710, 717.) We further note that the evidence defendant knew Officer Hansen was a peace officer engaged in the performance of his duties was overwhelming in this case. In addition to the obviousness of a uniformed officer ringing his doorbell after he called 911 asking for Officer McWilliams and was told an officer would be over, he told Johnson during their phone call that he was going to kill a cop and he told her "they" were here after Officer Hansen rang the doorbell.
The trial court instructed as follows on voluntary intoxication:
"You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with intent to kill[, w]hether the defendant acted with deliberation and premeditation, whether the defendant knew or reasonably should have known Officer Hansen was a police officer acting in the course of his duties and whether the defendant intentionally discharged a firearm.
"The People have the burden of proving beyond a reasonable doubt that the defendant acted with the required mental states. See the instructions for the required mental state indicated: A, an intent to kill. B, with deliberation and premeditation. C, knowing or reasonably should have known that Officer Hansen was a police officer acting in the course of his duties, and D, intentionally discharged a firearm.
"A person is voluntarily intoxicated if he or she becomes intoxicated by willfully using any intoxicating drug, drink or other substance knowing that it could produce an intoxicating effect or willingly assuming the risks of that effect.
"You may not consider evidence of voluntary intoxication for any other purpose. Voluntary intoxication is not a defense to assault with a semi-automatic firearm, a lesser charge to Count 2." (CALCRIM No. 3426.)
We also reject defendant's argument that his conduct amounted to mere recklessness or negligence and his conviction was therefore unsupported by substantial evidence. (People v. Williams, supra, 26 Cal.4th at p. 788 & fn. 4; People v. Navarro (2013) 212 Cal.App.4th 1336, 1344-1347; see People v. Aznavoleh (2012) 210 Cal.App.4th 1181, 1188-1189.) Standing in close proximity to the uniformed police officer he succeeded in summoning to his front door via a 911 call and after telling his girlfriend he was going to kill a cop, defendant raised his loaded semiautomatic handgun and pointed it at the officer. As Officer Hansen drew and fired his service weapon, defendant returned fire. Hansen testified he saw and heard bullets whizzing by his head and hitting the ground, and there was a strike mark on his radio holder he had not noticed before the shootout with defendant. Without question, this constitutes sufficient evidence supporting defendant's conviction for assault on a peace officer, and his argument that his actions were merely reckless or negligent has no merit. (People v. Williams, supra, at p. 790; People v. Navarro, supra, at pp. 1345-1347.)
B. Alleged Instructional Error
Defendant next argues that to convict him, the jury was required to unanimously reject his defense of mental impairment and voluntary intoxication, and the trial court had a sua sponte duty to instruct the jury "on the necessity for unanimous rejection of the defense in order to find [him] guilty of the charged crimes." Defendant further contends that because the error affected his substantial rights, it is reviewable on appeal despite trial counsel's failure to request the instruction or object to the instructions given. (§ 1259.)
In addition to maintaining defendant forfeited this claim, the People argue that the jury necessarily rejected defendant's evidence of mental impairment and voluntary intoxication by virtue of its verdicts of conviction on counts 1 and 2.
We "may also review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby." (§ 1259.) Given defendant's argument that the trial court erred and the error affected his substantial rights, we consider whether there was error and if so, whether a miscarriage of justice resulted. (People v. Rojas (2015) 237 Cal.App.4th 1298, 1304; People v. Hudson (2009) 175 Cal.App.4th 1025, 1028.)
For the purpose of advancing his argument that the trial court had a sua sponte duty to instruct the jury it was required to unanimously reject his defenses, defendant conflates mental impairment and voluntary intoxication evidence with affirmative defenses. They are not affirmative defenses, however. (People v. Reyes, supra, 52 Cal.App.4th at p. 982.) As previously discussed, evidence of mental impairment and/or voluntary intoxication is relevant to the issue of whether a defendant actually formed the specific intent to commit the crime. We find the authority cited by defendant for the proposition he advances inapposite, as the principles articulated in those decisions relate to affirmative defenses. (E.g., People v. McIntyre (1990) 222 Cal.App.3d 229, 232-233 [jury must decide unanimously whether the defendant proved entrapment; the issue was collateral to his criminal intent and if a jury is unable to arrive at a unanimous verdict, the result is mistrial]; United States v. Southwell (2005) 432 F.3d 1050, 1054-1055 [the defendant had a constitutional right to a unanimous verdict on his affirmative defense of insanity raised under 18 U.S.C. § 17]; State v. Miyashiro (1999) 90 Haw. 489, 500-501 [jury required to reach unanimous agreement on affirmative defense of entrapment]; see People v. Mower (2002) 28 Cal.4th 457, 480-481 [discussing defenses related to the defendants' guilt or innocence because they negate element of offense versus defenses the defendants must prove by preponderance of evidence because they are collateral to guilt or innocence, such as entrapment].)
Contrary to defendant's argument here, a trial court's instructional duty as to mental impairment and voluntary intoxication evidence is well established and that duty was discharged without error in this case, as we shall explain. (People v. Saille, supra, 54 Cal.3d at p. 1119; cf. People v. Ocegueda (2016) 247 Cal.App.4th 1393, 1406 [no sua sponte duty to instruct on mental disabilities but once the trial court instructs, it must instruct properly].)
"'In criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury's understanding of the case.' [Citation.] That duty extends to instructions on the defendant's theory of the case .... Evidence of a mental disease or defect, such as intellectual disability, is relevant and admissible to raise a reasonable doubt that the defendant premeditated and deliberated or formed any other specific intent necessary to establish his guilt of the charged offenses (§ 28, subd. (a)), but 'sua sponte instructions on the actual effect of the defendant's mental disease or disorder on his relevant mental state became unnecessary with the abolition of the mental disease/diminished capacity doctrine.'" (People v. Townsel (2016) 63 Cal.4th 25, 58.) The same principles apply to voluntary intoxication. (People v. Saille, supra, 54 Cal.3d at p. 1119.) "Such instructions relate particular facts to a legal issue in the case or 'pinpoint' the crux of a defendant's case .... [Citation.] They are required to be given upon request when there is evidence supportive of the theory, but they are not required to be given sua sponte." (Ibid.; accord, People v. Verdugo (2010) 50 Cal.4th 263, 295; People v. Ervin (2000) 22 Cal.4th 48, 91.)
In conclusion, we reject defendant's claim that the trial court had a sua sponte duty to instruct the jury it was required to unanimously reject his defense of mental impairment and voluntary intoxication as unsupported under the law and, therefore, we find no error occurred. Rather, the court gave pinpoint instructions on the admissibility of the evidence to negate specific intent, as was appropriate under the law (People v. Townsel, supra, 63 Cal.4th at p. 58; People v. Saille, supra, 54 Cal.3d at p. 1119), and defendant does not challenge those instructions on appeal.
II. Sanity Phase
After the jury returned its verdicts in the guilt phase but before the sanity phase commenced, defendant's counsel notified the court she had concerns over defendant's competency. (§ 1368, subd. (b).) As we discuss in more detail, post, the court had a hearing the next day to discuss whether a section 1368 hearing on defendant's competency should be held and it determined one was not necessary. On appeal, defendant argues that there was substantial evidence raising a doubt as to his incompetency and, therefore, the trial court committed reversible error when it failed to order a section 1368 hearing.
The People respond that the trial court did not abuse its discretion in finding there was not substantial evidence of incompetence, but assert that if we find otherwise, reversal is not required because the error can be rectified through a retrospective competency hearing. Defendant argues in reply, however, that the failure to order a competency hearing in the face of substantial evidence raising a doubt as to his mental competency compels reversal of the sanity finding.
After the completion of briefing in this case, we received notice of the death of defendant's appellate counsel. The appointment was vacated and new counsel was appointed. Counsel thereafter filed a supplemental reply brief addressing the competency issue and the availability of a retrospective competency hearing as a possible remedy. In the supplemental brief, defendant asserts that the failure to conduct a competency hearing requires reversal of his conviction. During oral argument, defendant's counsel clarified the focus is limited to error in and retrial of the sanity phase. We agree this is necessarily so given that doubt as to defendant's competency was not raised until after the conclusion of the guilt phase.
A. Competency Hearing Pursuant to Section 1368
Due process forbids criminal prosecution of a person who is mentally incompetent. (Pate, supra, 383 U.S. at p. 378; People v. Lightsey (2012) 54 Cal.4th 668, 690-691 (Lightsey); People v. Castro (2000) 78 Cal.App.4th 1402, 1415 (Castro), disapproved on another ground in People v. Leonard (2007) 40 Cal.4th 1370, 1391, fn. 3.) The constitutional test is whether the defendant "'has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him.'" (Dusky v. United States (1960) 362 U.S. 402.)
Paralleling this constitutional directive, "[a] person cannot be tried or adjudged to punishment or have his or her probation, mandatory supervision, postrelease community supervision, or parole revoked 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 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).)
Section 1368 further provides:
"(a) If, during the pendency of an action and prior to judgment, or during revocation proceedings for a violation of probation, mandatory supervision, postrelease community supervision, or parole, 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."
Under both state and federal law,"a trial court is obligated to conduct a full competency hearing if substantial evidence raises a reasonable doubt that a criminal defendant may be incompetent. This is true even if the evidence creating that doubt is presented by the defense or if the sum of the evidence is in conflict. The failure to conduct a hearing despite the presence of such substantial evidence is reversible error." (Lightsey, supra, 54 Cal.4th at p. 691, citing People v. Welch (1999) 20 Cal.4th 701, 737-738; see People v. Sattiewhite (2014) 59 Cal.4th 446, 464; Castro, supra, 78 Cal.App.4th at pp. 1415-1416.)
"Substantial evidence for these purposes is evidence that raises a reasonable doubt on the issue." (People v. Howard (1992) 1 Cal.4th 1132, 1163; accord, People v. Alvarez (1996) 14 Cal.4th 155, 211; Castro, supra, 78 Cal.App.4th at p. 1415.) As we explained in Castro, "[i]n determining whether there is substantial evidence of incompetence, a court must consider all of the relevant circumstances, including counsel's opinion. [Citation.] '[T]he "inexactness and uncertainty" that characterize competency proceedings may make it difficult to determine whether a defendant is incompetent or malingering.' [Citation.] Thus, 'what constitutes ... substantial evidence in a proceeding under section 1368 "cannot be answered by a simple formula applicable to all situations." [Citation.]' [Citation.] '"[S]ufficient present ability"' to cooperate with a lawyer and assist rationally in preparing a defense includes more than an 'orientation as to time and place,' and 'some recollection of events is not enough.' [Citation.] Mere bizarre statements or actions are generally insufficient to constitute substantial evidence raising a doubt as to the defendant's competency. [Citation.] On the other hand, the testimony of one mental health professional that the defendant is unable to assist in his or her defense because of a mental defect constitutes substantial evidence sufficient to compel a hearing." (Castro, supra, at pp. 1415-1416; see People v. Lewis (2008) 43 Cal.4th 415, 525, rejected on another ground in People v. Black (2014) 58 Cal.4th 912, 919-920; People v. Stankewitz (1982) 32 Cal.3d 80, 92.)
B. Analysis
1. Substantial Evidence Raising Doubt as to Competency
In this case, the trial court did not express a doubt as to defendant's mental competence and, therefore, we must determine whether the court was presented with substantial evidence of defendant's mental incompetence, thereby requiring it to conduct a hearing to make a formal determination of his competence. (People v. Ary (2011) 51 Cal.4th 510, 517; People v. Hale (1988) 44 Cal.3d 531, 539; People v. Pennington (1967) 66 Cal.2d 508, 518-519; Castro, supra, 78 Cal.App.4th at p. 1417.)
On appeal, "[i]n resolving the question of whether, as a matter of law, the evidence raised a reasonable doubt as to defendant's mental competence, we may consider all the relevant facts in the record." (People v. Young (2005) 34 Cal.4th 1149, 1217.)
"The court's decision whether to grant a competency hearing is reviewed under an abuse of discretion standard." (People v. Ramos (2004) 34 Cal.4th 494, 507; see People v. Welch, supra, 20 Cal.4th at p. 742.) "'A trial court's decision whether or not to hold a competence hearing is entitled to deference, because the court has the opportunity to observe the defendant during trial. [Citations.] The failure to declare a doubt and conduct a hearing when there is substantial evidence of incompetence, however, requires reversal of the judgment of conviction. [Citations.]'" (People v. Lewis, supra, 43 Cal.4th at p. 525; see People v. Welch, supra, at p. 738.)
After the return of the jury verdicts in the guilt phase but before the sanity phase commenced, defendant's counsel notified the trial court she had doubts about defendant's competency related to his ability "to assist counsel in the conduct of a defense in a rational manner." (§ 1367, subd. (a).) Defendant did not testify during the guilt phase, but counsel planned for him to testify during the insanity phase and she met with him the previous day to go over an outline of his proposed testimony with him. Counsel observed him to be unable to concentrate on the outline, and he expressed to her that he was unable to follow, understand and focus on the outline.
The trial court requested that Dr. Terrell, who was scheduled to testify for the defense during the sanity phase, speak with defendant and evaluate whether they could proceed. The next morning, the court held a hearing to determine whether a section 1368 hearing was necessary.
Dr. Terrell testified, "[I]ntellectually he knows the charges, he knows how the courtroom works. But the main concern I have is that his severe mental illness which is now severely depressed with psychotic features and suicidal ruminations, thoughts with an actual plan of how he would do it and his great difficulty with concentration as I understand it, I really have very strong doubts about his ability to assist [counsel] in a rational manner at this point, especially if he is expected to take the stand in his own behalf. I think he would have horrendous difficulty giving information to the jury to help them understand how he was feeling at the time of the crime."
In questioning Dr. Terrell, the trial court focused on defendant's sudden alleged deterioration in the days that followed the jury's verdict, prompting his counsel to raise the issue of his competence to assist her during the sanity phase. We recognize the trial court's valid concern that the timing of defendant's deterioration might suggest depression and stress stemming from his conviction rather than mental incompetence to assist counsel, and we recognize "the trial judge's decision not to order a competency hearing is entitled to great deference, because the trial court is in the best position to observe the defendant during trial." (People v. Mai (2013) 57 Cal.4th 986, 1033.) However, his counsel expressed doubt about defendant's competency based specifically on her recent contact with defendant for the purpose of addressing her outline of his proposed sanity phase testimony, and Dr. Terrell testified he had strong doubts about defendant's competency to assist his counsel during the sanity phase.
In denying the motion for a competency hearing, the trial court stated, "I have watched this defendant throughout this trial, I have noticed no change in demeanor, no[ticed] nothing that indicates to me that anything has really changed. What has changed is the defendant is convicted and is depressed and is upset with that conviction as anybody would be and as Dr. Terrell indicates they would be, but I do not find substantial evidence that raises a reasonable doubt in my mind that the defendant is not competent to stand trial for sanity, therefore I am going to deny the request for competency hearing and we are going to go forward with the sanity phase." In the course of ruling, the trial court referred to People v. Davis (1995) 10 Cal.4th 463 (Davis), a case cite which had been provided by the People. In Davis, the California Supreme Court rejected the claim that the trial court had a sua sponte duty to conduct a competency hearing based on the defendant's postverdict behavior, namely refusing to sit at counsel table. (Id. at p. 526.) The court concluded, "[The] [d]efendant's refusal to sit at the counsel table did not evince incompetence or lack of ability to participate meaningfully in the proceedings. His explanation for avoiding the counsel table was rational and coherent." (Id. at p. 528, fn. omitted.) The court recognized that no doubt had been raised in the trial court's mind as to the defendant's competence and "the trial court expressed the view that [the] defendant's apparent anger and upset over the guilt verdicts was 'normal' under the circumstances." (Id. at pp. 526-527.) We find Davis is distinguishable, however, because defense counsel did not express doubt as to the defendant's competency and/or seek a competency hearing, and there was no psychiatric testimony raising a doubt as to the defendant's competency. (Id. at pp. 525-527.)
Although the trial court may hold a contrary view, once the defense has presented substantial evidence raising a doubt as to a defendant's competency, the court must hold a competency hearing and the failure to do so is error. (People v. Sattiewhite, supra, 59 Cal.4th at p. 464; People v. Young, supra, 34 Cal.4th at pp. 1216-1217; People v. Welch, supra, 20 Cal.4th at pp. 738-739.) We find that the combination of trial counsel's concern over defendant's competency, which was based on a specific interaction with defendant at that specific juncture in the proceedings, and Dr. Terrell's expert opinion that he had "strong doubts" about defendant's ability to assist his counsel during the sanity phase constitute substantial evidence raising a doubt as to defendant's competency at that point in the proceedings. "'Even when a defendant is competent at the commencement of his trial, a trial court must always be alert to circumstances suggesting a change that would render the accused unable to meet the standards of competence to stand trial.'" (Lightsey, supra, 54 Cal.4th at p. 690.) Thus, once the trial court had before it substantial evidence comprised of counsel's opinion and an expert psychiatric opinion, it no longer had discretion to deny the motion for a competency hearing, notwithstanding its own contrary view.
2. Availability of Retrospective Competency Hearing
The People argue that under Lightsey, we need not reverse the sanity phase finding and may instead remand the matter for a retrospective competency hearing. (Lightsey, supra, 54 Cal.4th at pp. 707-708.) We conclude Lightsey is inapposite, however. Nor is this case analogous to those few California Courts of Appeal cases recognizing a narrow exception under which a retrospective competency hearing was adequate to address Pate error. (Lightsey, supra, at p. 703; People v. Shiga (2016) 6 Cal.App.5th 22 (Shiga); People v. Kaplan (2007) 149 Cal.App.4th 372 (Kaplan); People v. Ary (2004) 118 Cal.App.4th 1016 (Ary I).)
In Lightsey, the trial court suspended proceedings, appointed experts to evaluate the defendant and held a competency hearing. (§ 1368.) The trial court's error was its failure to appoint counsel to represent the defendant during the competency proceedings. In determining whether limited remand to conduct a retrospective competency hearing might be appropriate, the California Supreme Court noted the case did not involve the trial of a defendant who was actually incompetent nor did it "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." (Lightsey, supra, 54 Cal.4th at p. 703.) The court found the violation it faced to be "fundamentally different from a trial court's failure to hold a hearing, resulting in a complete failure to address a defendant's competence at the time of trial despite substantial triggering evidence of incompetence." (Id. at p. 704.)
The Supreme Court recognized two Court of Appeal cases that approved of limited remand for Pate error, along with one that did not. The facts of this case, however, distinguish it from situations in which limited remand was found to be sufficient to address the Pate error.
In the first case, Ary I, supra, 118 Cal.App.4th at page 1028, the Court of Appeal rejected the defendant's argument that a retrospective competency hearing was prohibited under People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 69-70. In finding a retrospective hearing was permitted, however, the court stated, "We emphasize ... that it is the rare case in which a meaningful retrospective competency determination will be possible. The inherent difficulty of such a determination, of course, is that there will seldom be sufficient evidence of a defendant's mental state at the time of trial on which to base a subsequent competency determination. [Citation.] This is because a trial court's initial failure to hold a timely competency hearing is almost always rooted in a fundamental inattentiveness to the defendant's mental condition. The record in such cases will, therefore, seldom contain useful contemporaneous information regarding a defendant's mental state at the time of trial and his ability, at that time, to understand the nature of the proceedings and assist in his defense. For this reason, courts have declined to permit a retrospective competency hearing after reversing a conviction because of the failure to hold such a hearing originally." (Ary I, supra, at p. 1028.)
In Ary I, there was already extensive expert testimony and evidence in the record relating to the defendant's competency because of pretrial hearings on the issue of his competency to waive his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) and the voluntariness of his confession. (Ary I, supra, 118 Cal.App.4th at pp. 1019, 1021-1022, 1029.) The court found much of the information in the record was relevant to a section 1368 competency hearing and stated, "It is only because of the highly unusual nature of this case that we remand this matter to the trial court for a determination as to whether such a hearing is possible." (Ary I, supra, at p. 1029.)
The second appellate court case, Kaplan, supra, 149 Cal.App.4th 372, also involved prior competency proceedings. In Kaplan, the defendant's competency within the meaning of section 1368 was raised prior to the preliminary hearing. (Kaplan, supra, at p. 377.) The parties waived the hearing and, in February 2003, the trial court found the defendant was not mentally incompetent based on the reports of two doctors, one an M.D. and the other a Ph.D. (Id. at p. 378.) After doubts were again raised about the defendant's competency in November 2003, the court appointed the same two doctors to examine the defendant and prepare new reports, and they again concluded he was competent. (Id. at pp. 379-381.) In January 2004, after the guilt phase but before sentencing, the court received additional reports from the doctors, found the defendant's condition had changed since trial and he was incompetent to be sentenced, and suspended proceedings. (Id. at p. 382.) More than a year later, in March 2005, the trial court found the defendant was competent and he was sentenced. (Ibid.)
On appeal, the court concluded that the November 2003 report of Dr. Rogers, Ph.D., constituted substantial evidence of changed circumstances, necessitating a second competency hearing. (Kaplan, supra, 149 Cal.App.4th at pp. 386-387.) The court considered the decision in Ary I at length, and it concluded the case before it might be one in which a retrospective competency hearing should be held. (Kaplan, supra, at pp. 387-389.) It explained, "Here, as in ... Ary [I], supra, 118 Cal.App.4th at page 1029, the record shows [the] defendant was evaluated by Dr. Sharma and Dr. Rogers at the beginning of trial for the purpose of determining his competence. Dr. Sharma and Dr. Rogers filed reports summarizing their observations and conclusions on this subject. Either or both might be available to testify at a retrospective competency hearing. If so, expert testimony might be able to assist the trial court in determining whether [the] defendant was competent at the time of trial. The experts perhaps could explain or elaborate on the observations and conclusions set forth in their reports. Significantly, they could testify, for example, whether any medications prescribed for [the] defendant in place of lithium and the larger dose of Paxil he had been taking constituted adequate substitutions, and to what extent, if any, [the] defendant's competence was compromised by such a change in his medication regimen." (Id. at p. 389.)
Recently, a third Court of Appeal approved a retrospective competency hearing feasibility determination. (Shiga, supra, 6 Cal.App.5th at pp. 49-50.) In Shiga, the Court of Appeal confronted the issue of the defendant's competence both to represent himself and to stand trial. (Id. a pp. 40-42.) The defendant's mental competence had been addressed in a pretrial proceeding in Department 95, the superior court's dedicated mental health department, and he was evaluated by three doctors during the course of that competency determination. (Id. at p. 29-30.) However, after that determination was made, both defense counsel and the prosecutor raised concerns regarding the defendant's competence, to no avail. (Id. at pp. 30-35.)
Defense counsel brought to the court's attention that although the defendant had been found competent to stand trial, he was being housed in the jail's mental ward and, additionally, counsel had received new information regarding his prior psychiatric treatment and wanted to discuss an insanity plea with him. (Shiga, supra, 6 Cal.App.5th at p. 31.) The defendant refused to discuss the possibility and thereafter requested to represent himself. (Ibid.)
During the hearing on the defendant's request to represent himself, the prosecutor voiced concern over his competence to self-represent. (Shiga, supra, 6 Cal.App.5th at pp. 34-35.) The trial court stated, in part, "'A decision was made that he was competent to stand trial. I don't take a second look at that.'" (Id. at p. 35.)
On the first day of trial, prior to jury selection, the prosecutor again requested the court consider the defendant's competence to represent himself, to no avail. (Shiga, supra, 6 Cal.App.5th at pp. 35-36.) The court commented, again in part, "'Our hands are tied because he has an absolute constitutional right to defend himself. Had Department 95, which is the specialized psychological court, determined he's not competent, it would be a different story, but it's not.'" (Ibid.)
The Court of Appeal concluded the trial court erred in failing to recognize it had the discretion to inquire further into the defendant's mental competence to represent himself and to deny his request to self-represent if necessary. (Shiga, supra, 6 Cal.App.5th at p. 42.) It also erred in failing to recognize it had the discretion to inquire further into the defendant's competence to stand trial and to hold a second competency hearing if necessary. (Id. at pp. 42, 44.) The court reversed and remanded the matter to the trial court to determine whether a retrospective competency hearing was feasible. (Id. at pp. 49-50.)
In contrast to the decisions in Shiga, Kaplan and Ary I, in People v. Murdoch (2011) 194 Cal.App.4th 230, 239 (Murdoch), the Court of Appeal rejected the suggestion made during oral argument that a retrospective competency hearing was the proper remedy for the trial court's error in failing to hold a competency hearing under section 1368. As in Kaplan and Ary I, there had been prior competency proceedings. However, the court stated simply, "Although it was suggested at oral argument the proper remedy would be to remand the matter to the trial court for a retrospective competency hearing (see ... Ary [I, supra,] 118 Cal.App.4th 1016), our Supreme Court held in People v. Young, supra, 34 Cal.4th at page 1217, that '[t]he correct procedure ... [is] to reverse the judgment of conviction.' (People v. Ary, supra, 51 Cal.4th [at p.] 515, fn. 1.)" (Murdoch, supra, at p. 239.)
Indeed, as recognized in Murdoch, in a post- Kaplan and Ary I decision, the California Supreme Court stated: "After holding in its 2004 decision in Ary I, supra, 118 Cal.App.4th 1016, that the trial court had violated [the] defendant's federal constitutional right to due process by not assessing evidence of his mental competence to stand trial, the Court of Appeal remanded the case to the trial court for a retrospective competency hearing, without, however, reversing the judgment of conviction. (Id. at p. 1030.) The correct procedure, as we held two years later, would have been to reverse the judgment of conviction. (People v. Young[, supra,] 34 Cal.4th [at p.] 1217 [when '"a full competence hearing is required but the trial court fails to hold one, the judgment must be reversed"']; see also People v. Robinson (2007) 151 Cal.App.4th 606, 619; ... Kaplan[, supra,] 149 Cal.App.4th [at p.] 390.)" (People v. Ary, supra, 51 Cal.4th at p. 515, fn. 1.)
We need not decide under what circumstances, if any, a retrospective competency hearing is permissible and/or appropriate to correct a Pate error because the record in this case is not analogous to the well-developed evidentiary records in Lightsey, Shiga, Kaplan, Ary I and Murdoch. Here, there were no prior competency proceedings, relating to section 1368 (Lightsey, Shiga, Kaplan and Murdoch), a knowing, intelligent and voluntary waiver of rights under Miranda (Ary I), or otherwise. Notably, defendant's competency under section 1368 was raised by counsel for the first time between the guilt phase and the sanity phase, and her concerns arose during her attempt to go over defendant's proposed sanity phase testimony with him. Although the trial court recessed to have Dr. Terrell speak with defendant and it held an informal hearing the next day at which Dr. Terrell testified, the record here is not comparable to the extensive expert testimony and evidence developed in Shiga, Kaplan, Ary I or Murdoch, or to Lightsey, where the trial court in fact held a section 1368 competency hearing but failed to appoint counsel to represent the defendant.
In sum, we conclude that the opinions of trial counsel and Dr. Terrell constituted substantial evidence raising a doubt as to defendant's competency, notwithstanding the trial court's opposing view. (People v. Young, supra, 34 Cal.4th at pp. 1216-1217; accord, People v. Ary, supra, 51 Cal.4th at p. 515, fn. 1.) At that point, the trial court was compelled under state and federal law to suspend proceedings and order a competency hearing under section 1368, and it lacked discretion to do otherwise. The jury's finding that defendant was sane at the time of the crimes must therefore be reversed and the sanity phase retried. (Pate, supra, 383 U.S. at pp. 386-387; 87; People v. Young, supra, at pp. 1216-1217; People v. Welch, supra, 976 Cal.4th at p. 738; see People v. Solorzano (2005) 126 Cal.App.4th 1063, 1071; People v. Johnwell (2004) 121 Cal.App.4th 1267, 1280-1281.)
In light of this finding, we do not reach defendant's final argument that the jury's finding he was sane at the time of the crimes was unsupported by substantial evidence.
Almost three years have passed since the sanity phase of defendant's trial, and we cannot know whether there will be any doubt expressed as to defendant's competence for retrial. If the trial court is presented with or becomes aware of substantial evidence raising a doubt as to defendant's competence, it must suspend proceedings and order a competency hearing, as we have discussed. (§ 1368; People v. Young, supra, 34 Cal.4th at pp. 1216-1217; People v. Panah (2005) 35 Cal.4th 395, 432.) If such evidence is less than substantial, however, the decision whether or not to suspend proceedings and order a competency hearing is within the trial court's discretion. (§ 1368; People v. Panah, supra, at p. 432; Murdoch, supra, 194 Cal.App.4th at p. 236.)
DISPOSITION
We affirm defendant's convictions for the willful, deliberate and premeditated attempted murder of a peace officer and for assault on a peace officer with a semiautomatic firearm. We reverse the jury's sanity finding and remand this matter back to the trial court for retrial, limited to the sanity phase.
/s/_________
KANE, Acting P.J. WE CONCUR: /s/_________
POOCHIGIAN, J. /s/_________
FRANSON, J.