Opinion
E051051 Super.Ct.No. FVI1000198
12-07-2011
THE PEOPLE, Plaintiff and Respondent, v. JOHN CHARLES CRAIN, Defendant and Appellant.
Gordon S. Brownell, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Pamela Ratner Sobek, Kelley Johnson, and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. Jules E. Fleuret, Judge. Affirmed with directions.
Gordon S. Brownell, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Pamela Ratner Sobek, Kelley Johnson, and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant John Charles Crain appeals from his conviction of attempted criminal threats (Pen. Code, §§ 664, 422) and true findings on allegations of two prior serious felony convictions (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and one prior prison term felony (§ 667.5, subd. (b)). Defendant contends (1) the trial court erred in failing to suspend trial to conduct a hearing on his competency to stand trial; (2) the trial court abused its discretion in refusing to dismiss a prior strike conviction; and (3) the abstract of judgment requires correction. The People concede the abstract of judgment should be corrected; we agree with their concession and will order the abstract of judgment to be amended. We find no other error, and we affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTS AND PROCEDURAL BACKGROUND
In the early morning hours of January 29, 2010, Mary Jane Gonzales was working at a Circle K convenience store in Adelanto. She noticed defendant standing by the door of the store reading a newspaper. Defendant asked her if she had a cigarette, and she said she did not. Defendant seemed mad and said, "'Fine then,'" as he left the store.
About half an hour later, defendant returned to the store with a cigarette in one hand and a lighter in the other hand. He approached Gonzales and said "something about all the Circle Ks in the nation . . . being burned down." He asked her if she knew why, and she said, "No, sir." He then said, "'That's why I'm gonna blow this store up.'" He raised the lighter and showed it to Gonzales. Gonzales began to walk toward the telephone, and defendant left the store. He seemed "pretty mad."
Gonzales telephoned 911. She then saw defendant standing next to the gas pumps and saw him raise both hands. He walked away from the pumps when a car entered the parking lot and parked near the front of the store. A woman got out of the car and entered the store; the woman told Gonzales that defendant was "yelling stuff" as he walked away. Gonzales told the 911 operator that she had seen defendant walk across the street. She saw a police officer approach and arrest defendant.
Deputy Taylor Long of the San Bernardino County Sheriff's Department approached defendant across the street from the Circle K store. Defendant was standing in front of the city hall holding a lighter in his hand. It appeared that defendant threw down a cigarette when Deputy Taylor approached him.
Defendant testified in his own behalf. He testified he had been at the Circle K between 11:30 p.m. on January 28, 2010, and 12:30 a.m. on January 29, but he had not been there at 4:00 or 4:30 a.m. on January 29. He testified he had never threatened to blow up the store. He had been smoking a cigarette near the city hall when Deputy Taylor arrived and shined a spotlight on him, and he dropped the cigarette because he "was on the last drag."
Defendant testified that when he went into the Circle K, he had made some comments about "Little Cowboys and Little Partners," a newspaper that local people had put out about horses. Defendant asserted that everything Gonzales testified to had been a lie.
The jury found defendant guilty of attempted criminal threats (§§ 664, 422), a lesser included offense to the offense of criminal threats (§ 422) charged in the information. In bifurcated proceedings, the jury found true the allegations that defendant had suffered prior convictions for burglary (§ 459) in 1985 and robbery (§ 211) in 1994, both serious felonies (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and had served a prior prison term (§ 667.5, subd. (b)).
The trial court sentenced defendant to 25 years to life for the attempted terrorist threats and to a consecutive one-year term for the prior prison felony.
Additional facts are set forth in the discussion of the issues to which they pertain.
III. DISCUSSION
A. Failure to Conduct Competency Hearing
Defendant contends the trial court erred in failing to suspend the proceedings to conduct a hearing on his competency to stand trial. He argues first that the evidence of his incompetency before the jury issued its verdict requires reversal of his conviction. He argues in the alternative that additional evidence of his incompetency prior to sentencing requires reversal.
1. Additional Background
During the pretrial discussion on bifurcation of prior conviction allegations, defendant's counsel told the court that defendant "may well" take the stand to testify at trial. The court noted that if so, the jury would learn of his prior convictions but not of the details of the crimes. Defendant interjected, "I object to that one. I want them. The hell with that. I want them to know the details."
Before jury selection began, the trial court asked the parties if there were any issues that needed to be put on the record. Defendant stated, "Your Honor, I'd like to ask for a court-appointed attorney at this time, if I could." The trial court informed defendant that he already had an experienced criminal defense attorney appointed to represent him.
When defendant took the stand in his own defense, he testified that he had made statements to Gonzales about whether "the Little Cowboys and the Little Partners are getting together at the Circle K." He also stated he believed Gonzales had "some type . . . of companionship problem" with "men with blue hair—blond hair . . . ." He later stated, "And I'm still debating which one is Mary Gonzales. I would personally like to have personal identification as to who is really Mary Jane Gonzales, because the one that I saw is neither one of these that has showed up here in my opinion, in my mind." During cross-examination, he stated he was "still debating whether that is the correct lady that was there," and told the prosecutor, "That is not the lady." Defendant asked why Deputy Long had his "food stamp card in his possession" and stated he tended "not to trust vacant stores late at night." He stated his belief that Gonzales had "an issue with my blond hair and blue eyes." Finally, he denied that what Gonzales had testified to had actually happened and said she was "possibly not the clerk that was not [sic] there that night."
After the jury returned its verdict, defendant stated, "You made a mistake. I didn't do it. Drop dead."
When the bifurcated proceedings began on defendant's prior convictions, the trial court read the allegations to the jury. Defendant stated, "Makes you think I'm a criminal. Fuck you." At the end of the day, when the trial court excused the jury, defendant stated, "Thank you. And I don't know how I deserved this. You must have thought that I was someone else." Still in the presence of the jurors, defendant said, "Fuck you. All just to get it over with. Stupid fucking idiots."
The jury left the courtroom, and the trial court told defendant, "Mr. Crain, it is not helping you to—it's not helping your case to make remarks and to be speaking out—." Defendant interrupted the court, stating, "I didn't do it, so—I can make any comment I want." The trial court asked defendant not to make comments in front of the jury.
The following day, defendant interrupted the prosecutor to say, "Defendant categorically denies this." When the jury reached its verdicts on the priors, defendant stated, "Lack of deliberation, huh? Lack of consideration. Lack of consideration." At the request of the bailiff, he stopped his comments.
Before sentencing, defendant wrote several letters to the court and prosecutor, in which defendant stated, among other things, that "the gas station in question . . . was being robbed by 4 officers and Mary Jane Gonzales at the time of arrest"; that he was "being framed by lies, dishonesty and untruths of so-called witnesses and Courtroom officers," and was "asking for inquisition of the charges (so-called) against [him]." (Capitalization omitted.)
The probation officer's report stated that defendant had been treated for schizophrenia and bipolar disorder and had a prescription for "Risperdal," an antipsychotic medication. Defendant had "exhibited unusual behavior" in jail in February 2010, and the sheriff's inmate movement log noted he was "'not suited for dorm liv.'" In 1985 and 2007, he had been committed to Patton State Hospital for restoration of his competence in criminal proceedings, and he had been sentenced to a mental health program after a 2001 conviction of attempted robbery in Kansas.
In a telephone interview with the probation officer, defendant said he had been falsely accused and the "store clerk and the deputy were in on it." Defendant continued, "The clerk is narcissistic and she liked the defendant's good looks. 'She is not aware of her surroundings. Her mother didn't love her and so she picks on people She has a mental health problem. She said she was ugly.'" Defendant told the probation officer he would like a mistrial, because the store security video had not been shown; the People did not prove there had been a 911 call; and "[n]one of the girls that showed up in court to testify were in Circle K the night of the offense. The clerk did not testify." The probation officer opined: "It appears the defendant lacks mental stability; however, it does not appear this issue has impeded his ability to assist in his defense and in the past he has been declared mentally competent and has been convicted of criminal conduct."
2. Analysis
Both federal due process and state law prohibit the state from trying or convicting a criminal defendant while he is mentally incompetent. (People v. Lewis (2008) 43 Cal.4th 415, 524 (Lewis).) Under state law, "A defendant is mentally incompetent . . . 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).) Under federal law, competency "requires sufficient present ability to consult with one's lawyer with a reasonable degree of rational understanding and a rational and factual understanding of the proceedings against one. [Citation.]" (People v. Halvorsen (2007) 42 Cal.4th 379, 401 (Halvorsen).)
The trial court must "'suspend trial proceedings and conduct a competency hearing whenever the court is presented with substantial evidence of incompetence, that is, evidence that raises a reasonable or bona fide doubt concerning the defendant's competence to stand trial.' [Citations.] When the court entertains no doubt about the defendant's competence, it is not required to hold a competency hearing. [Citations.] . . . . '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.' [Citation.]" (People v. Howard (2010) 51 Cal.4th 15, 45.)
"In 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. [Citations.]" (People v. Young (2005) 34 Cal.4th 1149, 1217.) In Young, the court stated that the substantial evidence test is satisfied "'"[i]f a psychiatrist or qualified psychologist [citation], who has had sufficient opportunity to examine the accused, states under oath with particularity that in his professional opinion the accused is, because of mental illness, incapable of understanding the purpose or nature of the criminal proceedings being taken against him or is incapable of assisting in his defense or cooperating with counsel . . . ."' [Citation.]" (Ibid.) No such evidence appears in the present record.
"When the evidence casting doubt on an accused's present competence is less than substantial, the following rules govern the application of section 1368. It is within the discretion of the trial judge whether to order a competence hearing. When the trial court's declaration of a doubt is discretionary, it is clear that 'more is required to raise a doubt than mere bizarre actions [citation] or bizarre statements [citation] or statements of defense counsel that defendant is incapable of cooperating in his defense [citation] or psychiatric testimony that defendant is immature, dangerous, psychopathic, or homicidal or such diagnosis with little reference to defendant's ability to assist in his own defense [citation].]' [Citation.]" (People v. Welch (1999) 20 Cal.4th 701, 742 (Welch).) "'"'An appellate court is in no position to appraise a defendant's conduct in the trial court as indicating insanity, a calculated attempt to feign insanity and delay the proceedings, or sheer temper."'" [Citations.]" (People v. Marks (2003) 31 Cal.4th 197, 220 (Marks).)
Numerous courts have found, under circumstances similar to or even more extreme than those before us, that there was no substantial evidence of incompetency requiring suspension of the proceedings. For example, in Halvorsen, the Supreme Court held that the trial court did not err in failing to hold a competency hearing, despite (1) the testimony of a psychiatrist that the defendant suffered from bipolar disorder and was psychotic both at the time he committed the offenses and at trial, and (2) defendant's own testimony that purportedly was "'filled with tangential responses to the questions of counsel and strange, irrelevant statements, often marked by a seemingly psychosis-induced preoccupation with a newly embraced religion and an obsession with his own and society's unworthiness.'" The court nonetheless held there was no substantial evidence of incompetency. (Halvorsen, supra, 42 Cal.4th at pp. 402-403, fn. omitted.)
In Lewis, defense counsel raised a question as to the defendant's competency after the defendant made outbursts during the testimony of a prosecution witness, and a psychologist submitted a letter stating there was evidence that the defendant had suffered brain damage. (Lewis, supra, 43 Cal.4th at p. 523.) The Supreme Court nonetheless held there was no substantial evidence of incompetency requiring the trial court to conduct a hearing. (Id. at p. 524.)
In Welch, the defendant had alleged conspiracy in the proceedings; more than once had claimed the court, his own counsel, and the prosecutor had been acting in collusion; had claimed the local bar association should be disqualified from representing him; accused counsel of "back-room discussion"; alleged evidence had been "falsified by the sheriff's department"; and alleged "jail officials" had monitored interviews with psychologists. (Welch, supra, 20 Cal.4th at p. 730, fn. 3.) In addition, the defendant had "engage[d] in verbal displays and interrupt[ed] and interfere[d] with the conduct of the courtroom proceedings"; "constantly interrupt[ed] the court and counsel"; and "accused the bailiff of tampering with his legal papers, asked the court to have his attorneys sit in the jury box due to a conflict of interest, was reluctant to respond to the court's questions while repeating that his civil rights were being abused, and interrupted the proceedings . . . by requesting that the court and various individuals be served with a civil complaint in a federal matter." (Id. at pp. 730-731.) The court held that the circumstances, "while suggesting the trial court could have ordered a hearing on competence to stand trial, [did] not establish that the trial court abused its discretion in failing to do so . . . ." (Id. at p. 742.)
Here, defendant testified in his own behalf and for the most part answered questions coherently, without demonstrating confusion. Defendant complied with instructions to allow the prosecutor to finish questions before responding and to listen closely to the questions. Defense counsel never expressed a doubt about defendant's competency. The fact that in the cold record on appeal some of defendant's statements appeared bizarre (e.g., that Gonzales had a "companionship problem" with blue-eyed blonde men like defendant), does not necessarily indicate lack of competency. Rather, we must defer to the trial court, which had the opportunity to observe defendant's demeanor during the trial. (Marks, supra, 31 Cal.4th at p. 220.) Defendant's outbursts after the verdict and during the prosecutor's argument during the trial of the prior offenses in fact showed that defendant understood the nature of the proceedings. (See Lewis, supra, 43 Cal.4th at pp. 525-526; Marks, supra, at p. 221; People v. Frye (1998) 18 Cal.4th 894, 1005 ["An angry and emotional reaction to a verdict of guilt does not indicate an inability to understand the nature of the criminal proceedings, or to rationally assist counsel. [Citation.]"], disapproved on another ground in People v. Doolin (2009) 45Cal.4th 390, 421, fn. 22.) Consistently with Lewis, Marks, Frye, and Welch, we conclude defendant has failed to demonstrate substantial evidence of incompetency, and the trial court did not err in failing to suspend the proceedings to conduct a competency hearing.
B. Refusal to Dismiss Prior
Defendant contends the trial court abused its discretion in refusing to dismiss a prior strike conviction.
1. Standard of Review
We review the denial of a request to strike a prior felony conviction under the abuse of discretion standard. In other words, we affirm the trial court's decision unless it was "so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 377.)
2. Additional Background
Defendant's convictions for burglary in 1985 and robbery in 1994 were alleged as strike priors, and in bifurcated proceedings, the jury found the allegations true. At sentencing, defense counsel stated that "it just doesn't seem to me that [using a 25-year-old conviction as a strike] comports with the spirit of the three strikes law." The prosecutor responded that defendant's continuous criminal history justified three strikes sentencing. The trial court summarized defendant's record: "Mr. Crain had his first arrest in November of '71 and then had another arrest in '75, another arrest in '81 and then another arrest in 2008—or in 1983. Now, those all resulted in misdemeanor convictions. I note that the November 23rd, '83 misdemeanor conviction . . . involved building an illegal fire. It was a trespass with an illegal fire. In 1984 he was convicted of first degree burglary and was placed on probation. The second count in that conviction was an arson, a felony arson. He was placed on probation . . . . [¶] . . . [¶] In 1986 while he was still on probation he was convicted of another misdemeanor. In 1989 he was convicted of a misdemeanor. And on March 26th of '89 and on March 31st of '89 he was convicted of misdemeanors. In 1991 he was convicted of vandalism, and then in 1994 of robbery, for which he was sentenced to state prison. In 2001 he was convicted of robbery in Kansas. And, finally, in 2007 he was convicted of causing a fire, felony arson, for which he was sentenced to state prison. There were parole violations in that case. [¶] The court recognizes that Mr. Crain has had a history of mental illness and has been committed because of that. That's an unfortunate situation. [¶] Many of the misdemeanors involved him being—defrauding an innkeeper and that sort of thing. [¶] But nevertheless, the pattern of his conduct and facts of the case the jury's convicted him on and he's here for sentencing indicate that he does present a danger to the community. And while we can be sympathetic to his situation, we have an obligation to make sure innocent parties are not endangered by future conduct. [¶] So even had a formal Romero [(People v. Superior Court (Romero) (1996) 13 Cal.4th 497)] motion been submitted, there would be no basis for granting that motion and striking the—one or any of the strikes. So I will deny that request . . . ."
Defendant was on parole when he committed the current offense.
3. Analysis
In deciding whether it would be "in furtherance of justice" (§ 1385, subd. (a)) to strike a prior felony conviction under the Three Strikes law, the trial court "must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.)
As the trial court recounted, defendant, then 64 years old, had a criminal history that spanned 40 years. Defendant argues, however, that one of his strike priors was 25 years old and thus should have been considered remote. When a prior conviction is remote, and the defendant has led a crime-free life between that prior conviction and the present offense, the trial court may consider remoteness as a factor favoring dismissal of a strike. (People v. Humphrey (1997) 58 Cal.App.4th 809, 813.) However, the remoteness of a prior conviction does not alone require dismissal: "Where, as here, the defendant has led a continuous life of crime after the prior, there . . . has been no 'washing out' and there is simply nothing mitigating about a 20-year-old prior. [Citations.]" (Ibid.) Here, in light of defendant's conviction of 13 offenses in eight separate cases, and the fact that defendant was on parole when he committed the current offense, we find nothing mitigating about the remoteness of his 1984 strike offense.
Defendant next argues that his history of mental illness should have been considered as a factor in mitigation. The fact that a defendant suffers from a mental illness may be a mitigating factor. (See Cal. Rules of Ct., rule 4.423(b)(2).) Here, however, the trial court's remarks at sentencing make clear that it gave due consideration to defendant's history of mental illness. The court nonetheless concluded the facts indicated defendant did "present a danger to the community. And while we can be sympathetic to his situation, we have an obligation to make sure innocent parties are not endangered by future conduct." The record supports the trial court's finding that defendant's present conduct and past record show him to be a threat to public safety. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 981), and thus, the kind of "'revolving door' career criminal to whom the Three Strikes law is addressed." (People v. Stone (1999) 75 Cal.App.4th 707, 717.)
Defendant further notes that his current conviction was for a "wobbler" offense, which could have been punished as a misdemeanor and was not a violent crime. (§§ 422, 667.5, subd. (c).) The evidence at trial showed, however, that defendant threatened a convenience store clerk that he was going to blow up the store, showed the clerk a lighter, and then stood outside by gas pumps waving the lighter. Moreover, defendant had a history of fire-related offenses—he suffered convictions in 1983 for "PC602(i), Trespass: Build Fires"; in 1984 for "PC455 Attempt/Aid/Counsel/Procure Arson"; and in 2007 for "PC452(c), Causing Fire of Structure/Forest Land."
In light of the circumstances of defendant's present crime and his criminal history, he cannot be deemed outside the spirit of the three strikes statutes. We therefore find no abuse of discretion in the trial court's refusal to dismiss a prior strike.
C. Abstract of Judgment
Defendant contends the abstract of judgment requires correction. The trial court awarded him 177 days of local custody credits, including 119 days of actual custody and 58 days of local conduct credits. Although the abstract of judgment reflects the correct number of credits, it erroneously states they were awarded under section 2933.1. "'Section 2933.1 applies only where the defendant's current conviction is a violent felony listed in section 667.5. [Citation.]" (In re Mitchell (2000) 81 Cal.App.4th 653, 656.) The People concede the abstract of judgment should be corrected, and we agree with their concession of error. We will therefore order the abstract of judgment to be amended accordingly.
IV. DISPOSITION
The judgment is affirmed. The trial court is directed to issue an amended abstract of judgment that reflects defendant's custody credits were awarded under section 4019, and to forward the amended abstract of judgment to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
RICHLI
J.
CODRINGTON
J.