Opinion
NOT TO BE PUBLISHED
APPEAL from the judgment of the Superior Court of Los Angeles County. No. MA039033 John Murphy, Judge.
Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.
GRIMES, J.
SUMMARY
Defendant Joseph L. Ennis was charged by second amended information with three counts of assault with a deadly weapon (Pen. Code, § 245, subd. (b)), and one count of shooting at an occupied vehicle (Pen. Code, § 246). The information also included special allegations, including gang (Pen. Code, § 186.22, subd. (b)(1)(C)), firearm (Pen. Code, §§ 12022.5, subds. (a) & (d), 12022.53, subd. (d)), and great bodily harm allegations (Pen. Code, § 12022.7, subd. (a)). Prior to the commencement of trial, defendant’s counsel voiced a doubt as to defendant’s competence to stand trial. The trial court reviewed the evidence and found insufficient facts warranting a competency hearing.
Defendant was found guilty on all counts, and all allegations were found true, except for the gang allegation. Defendant was sentenced to an aggregate term of 38 years and eight months. The base term was the middle term of five years for shooting into an occupied vehicle. For the three counts of assault with a deadly weapon, defendant was sentenced to three consecutive terms of two years, each representing one-third the middle term of six years. The trial court also imposed consecutive terms of one year and four months on the Penal Code section 12022.5, subdivisions (a) & (d) enhancements for counts 1 and 2, and 25 years to life on the Penal Code section 12022.53, subdivision (d) enhancement on count 4. The sentence on the count 3 firearm enhancement was stayed.
On appeal, defendant contends: (1) the consecutive sentences imposed were improper under Penal Code section 654; (2) the trial court erred in admitting hearsay statements from a confidential informant; and (3) the trial court erred in failing to appoint an expert to determine plaintiff’s competence to stand trial, and abused its discretion in failing to grant a new trial after medical records casting doubt on plaintiff’s competence were introduced. We affirm the judgment, with modifications.
FACTS
Late in the evening on April 7, 2007, defendant drove George Brooks, Cynthia Burnett, Derrick Hodges, and Samiyiah Vickers to a Food-4-Less store in Lancaster, California. Defendant entered the store with the others, wearing dark shorts and a white hooded jacket with black spots. At some point, George and Cynthia heard gunfire coming from outside. They didn’t see defendant in the store at that time. Defendant did not drive George, Cynthia, or Derrick home from the store.
On the same evening, Star Angeletti, and brothers Jamaal and David Hunter, were also at the Food-4-Less. According to Star, Jamaal was approached by an African-American male, wearing a white jacket with black spots, who told Jamaal to “bring [his] ass outside.” Jamaal went outside, and the two got into a fistfight. Star jumped in her Ford Explorer SUV to get away, and Jamaal jumped in after her. David was also in the car. Star placed the car in reverse, and as she was pulling out of her parking space, her car was hit by bullets. Jamaal was hit by a bullet in his back. Star lost control of her car while leaving the parking lot and crashed into a parked vehicle. She was able to drive home but, before taking Jamaal to the hospital, had to switch cars with her mother because her Explorer was heavily damaged.
Jamaal was not sure of the race of the person who approached him in the store, but described him as having a light-brown complexion. The person said something that “wasn’t nice” to Jamaal, prompting Jamaal to get into a confrontation with the person, which resulted in a fistfight. Jamaal testified that the person he fought was wearing a white tee-shirt. He wasn’t wearing a jacket. Jamaal was wearing a red jacket.
David also participated in the fistfight outside of the store. He recalled that the person he and Jamaal fought with was African-American, and was wearing a long, white thermal shirt. He testified that the person they fought was not the person wearing a white and black jacket and black shorts, who was observed in Food-4-Less surveillance tapes. After the fight, he and Jamaal got into Star’s car. Shots were fired at the car, Jamaal was shot, and David’s knee was grazed by a bullet.
Jamaal, Star, and David didn’t know the person that confronted Jamaal in the Food-4-Less. Also, they didn’t see the shooter.
Los Angeles County Sheriff’s Detective David Gunner testified that witnesses are often unwilling to testify at trial, as they are scared. Also, he explained that gang members are reluctant to “snitch” on members of other gangs. Star, Jamaal, and David each testified that they didn’t want to be in court.
Timothy Rischar was working as a security guard at the Food-4-Less. Late in the evening of April 7, 2007, he was watching the Food-4-Less parking lot. An ambulance had pulled up and blocked the store entrance. He asked the driver to move. He then noticed an altercation between a male wearing a black and white sweatshirt, and a male wearing a red jacket. The fight broke up, and the fighters dispersed to separate cars. Then, he noticed the man wearing the black and white sweatshirt standing behind the car that the man in the red jacket had gotten into. He was holding a gun, and fired into the SUV.
The ambulance driver, Kevin McKendall, saw two black men in a fight. After the fight was over, one of them fired a gun at the other’s car. The shooter was wearing a jacket similar to the black and white jacket in evidence.
Responding officers recovered seven nine-millimeter shell casings in the parking lot.
Detective David Gunner worked for the Los Angeles County Sheriff’s gang unit, and received information from a confidential informant that a person named Joseph had shot a person named Jamaal at the Food-4-Less, and that the parties were members of the Bloods on Point and Penthouse Players gangs. The informant did not know their last names, but knew that Joseph used to live with “Vincent” on Division Street. Gunner searched department records and discovered a prior shoplifting incident involving defendant and Vincent Alexander. Defendant and Alexander lived on Division Street at that time. Gunner also discovered that defendant had recently been pulled over by the California Highway Patrol (CHP) in a stolen vehicle, and that a gun was found concealed in the vehicle’s glove box. Gunner obtained the gun from the CHP, a nine-millimeter pistol, and ballistic tests confirmed that the gun matched the bullet removed from Jamaal. The gun was not tested for fingerprints, because it was stored for a period of time in plastic, and fingerprints are rarely recovered under such circumstances.
Gunner also performed a search of defendant’s home, where he lived with his girlfriend, Lilian Mayorga. He recovered a white hooded jacket with black spots. The jacket was not tested for gun powder residue, due to the passage of time between the incident and the jacket’s recovery. He left his business card with Lilian and asked her to have defendant call him. Defendant thereafter called Gunner and admitted to fighting at the Food-4-Less, but denied involvement in the shooting.
Alan Payne was the owner of the gun found in the glove box of the stolen vehicle. It had been stolen from his Lancaster home in November of 2006.
Garry Rindlisbacher was the owner of the stolen vehicle in which defendant was arrested. He did not know defendant, and did not have a handgun in the vehicle when it was stolen.
Defendant testified he was at the Food-4-Less on the night in question, wearing the black and white jacket admitted into evidence. He admitted that the jacket was his. He denied getting into a fight at the Food-4-Less and shooting anyone. He did not own the gun recovered in the car in which he was stopped. The car was not stolen. He had purchased it the day before his arrest from Melvin Daniels. Nevertheless, he pled guilty to stealing the vehicle, on advice of counsel. He denied ever speaking with Detective Gunner.
DISCUSSION
Summarizing again the points raised on appeal, defendant contends: (1) the consecutive sentences imposed were improper under Penal Code section 654 ; (2) the trial court erred in admitting hearsay statements from a confidential informant; (3) the trial court erred in failing to appoint an expert to determine plaintiff’s competence to stand trial, and abused its discretion in failing to grant a new trial after medical records casting doubt on plaintiff’s competence were introduced.
All further code references are to the Penal Code unless indicated otherwise.
1. Consecutive Sentence
Defendant contends that under section 654, the consecutive sentences imposed by the trial court were improper and that the case must be remanded for resentencing. Although we agree that the sentence was improper under section 654, we find that the sentence may be modified and need not be remanded.
Section 654 precludes multiple punishments for a single act or indivisible course of conduct punishable under more than one criminal statute. (§ 654.) The intent and objective of the actor determines whether a course of conduct is divisible and gives rise to more than one act under section 654. (Neal v. State of California (1960) 55 Cal.2d 11, 19 (Neal).) If all of the offenses are incident to one objective, the court may punish the defendant for any one of the offenses, but not for more than one offense. (People v. Perez (1979) 23 Cal.3d 545, 551.)
Section 654 does not preclude multiple punishments when: (1) there are divisible objectives and intents in the same course of conduct; and (2) multiple victims of violent conduct are involved. If a defendant had multiple or simultaneous objectives, independent of and not incidental to each other, the rule against multiple punishments is inapplicable. (People v. Beamon (1973) 8 Cal.3d 625, 639 [A defendant may be punished for each violation committed in pursuit of each objective, even if the violations shared common acts or were parts of an otherwise indivisible course of conduct].) Also, if there are multiple victims of a single course of conduct, even with a single objective, the defendant may be punished for a crime of violence committed against each victim. (People v. Garcia (1995) 32 Cal.App.4th 1756, 1781 (Garcia).) The multiple-victim exception precludes application of section 654 due to the greater culpability associated with acts of violence directed to several persons. (Garcia, at p. 1781.)
a. The multi-victim exception does not permit punishment for the assaults on all victims, plus the shooting into an occupied vehicle.
When there are multiplevictims and multiplecrimes against those victims, the application of the above rules may become more complicated. Multiple punishments are not permitted if more than one crime is committed against multiple victims, involving the same objectives and intent, and there is a complete overlap in victims. In such instances, multiple punishments may only be imposed if “each violent crime involves at least one different victim.” (People v. Masters (1987) 195 Cal.App.3d 1124, 1128 (Masters).)
In Masters, the appellant shot at a vehicle with three occupants and was convicted of shooting at the car and of assault against two of the occupants. The court concluded that “[t]he preclusion of section 654’s application does not depend upon a determination that the victims of one violent crime are entirely different from the victims of a second violent crime committed in the same course of conduct. As long as each violent crime involves at least one different victim, section 654’s prohibition against multiple punishment is not applicable. [Citations.] [¶] In our view, [the assaults and shooting at the car], while in the same course of conduct, resulted in the commission of violent crimes against different victims. Manifestly, Derrick Ross was the unfortunate victim of [appellant’s] assault with a deadly weapon and all three occupants of the Mustang were victims of his discharge of the firearm at the vehicle.” (Masters, supra, 195 Cal.App.3d at p. 1128.) As such, the court concluded that multiple punishment was permissible.
Garcia, supra, 32 Cal.App.4th 1756 is also instructive. In Garcia, appellant had shot at a vehicle containing multiple occupants. Appellant was convicted of shooting at an occupied vehicle (§ 246) and assault on each of the occupants (§ 245), among other counts. The sentences were imposed consecutively for the assault on one of the victims and the shooting at the occupied vehicle. The sentence was stayed as to the assault charges for the remaining victims. The court noted that “in every... case we have found holding that the multiple victim exception permitted unstayed sentences both for shooting at an occupied motor vehicle (or an analogous crime) and for one or more simultaneous assaults (or analogous crimes) -- there was at least one victim of the former who was not also a victim of the latter. The ‘leftover’ victim or victims formed the basis of the separate, unstayed sentence for shooting at an occupied motor vehicle.” (Garcia, at p. 1783.) As such, the court found that “[appellant] was properly punished both for the crime of shooting at an occupied motor vehicle, the victims of which were Verdin and three others, and for the assault on Verdin, because each crime involved at least one different victim.” (Id. at p. 1785.)
In this case, it is not disputed that defendant may be punished consecutively on the assault convictions because each occupant of the vehicle -- Star, Jamaal, and David -- was a victim of defendant’s attack. (See Garcia, supra, 32 Cal.App.4th at p. 1781.) However, defendant disputes the ability of the trial court to sentence defendant consecutively for all counts, urging that the intent and objectives for the assault counts (§ 245) and the shooting count (§ 246) are indistinguishable, and that there is no unique victim for the section 246 count, as all victims are also victims of the assault counts. Defendant urges that either he may be punished for each assault, or for the shooting of the occupied vehicle, but not for all those crimes.
When defendant fired a gun into an occupied vehicle in violation of section 246, each occupant of that vehicle may properly be deemed a victim of the crime. (Masters, supra, 195 Cal.App.3d at p. 1130 [all three occupants of moving vehicle shot at by defendant clearly “were victims of [defendant’s] violation of section 246”].)
Likewise, we find that Star, David, and Jamaal were all victims of the violations of section 245 and section 246. As stated in Garcia, “Where one person is the victim of both a shooting at an occupied motor vehicle and a simultaneous assault, the trial court can impose an unstayed sentence for one or the other, but not for both.” (Garcia, supra, 32 Cal.App.4th at p. 1784.) As such, consecutive sentencing for the section 245 and section 246 violations turns on whether these crimes -- assault with a deadly weapon, and shooting into an occupied vehicle -- involved different intents and objectives, as the multi-victim exception clearly does not permit punishment for both crimes, as Star, Jamaal, and David were victims of both crimes, and no “leftover” victim exists.
Respondent offers a novel theory in support of the multiple-victim exception, contending that the real victim of count 4 was Timothy Rischar, the Food-4-Less security guard who observed the shooting. Respondent urges that because Rischar was not also a victim of the assault counts, multiple punishment is permissible. Respondent contends that no authority requires that all victims of a shooting into an occupied vehicle be in the car. This assertion is groundless. Section 246 criminalizes shooting into an occupied vehicle. Therefore, the statute has not been violated if someone shoots into an unoccupied vehicle with bystanders present. Under its plain construction, it is clear that the statute is not addressed to incidental harm to bystanders. “[T]he multiple-victim exception is just that: a multiple-victim exception, not a multiple-observer exception. Assaults have victims; exhibitions have observers.” (People v. Hall (2000) 83 Cal.App.4th 1084, 1096.)
b. The crimes do not involve separate intents and motives.
Respondent contends that counts 1 through 3 and count 4 involve separate intents and objectives and, therefore, reasons that section 654 is inapplicable. Specifically, respondent argues that count 4 was committed for the purpose of demonstrating the supremacy of defendant’s criminal street gang, whereas the other counts were committed to exact revenge for the fight with Jamaal and David. The gang allegations were found “not true” by the jury. Nevertheless, respondent argues that a gang motive can still form the basis of the trial court’s section 654 analysis, reasoning that substantial evidence supports such a finding.
It is irrelevant that the gang allegations were found “not true” by the jury, as evidence of gang affiliation for purposes of section 654 is a “sentencing fact” for the court, and need not be found true by the jury. (See, e.g., People v. Towne (2008) 44 Cal.4th 63, 87 [“the trial court’s consideration of conduct underlying counts of which the defendant has been acquitted is not inconsistent with the jury’s verdict of acquittal, because a lower standard of proof applies at sentencing”].)
Generally, the sentencing court determines a defendant’s “intent and objective” under section 654. (See, e.g., People v. Coleman (1989) 48 Cal.3d 112, 162.) The trial court’s determination of a defendant’s separate intents is reviewed for sufficiency of the evidence, in the light most favorable to the judgment, and the reviewing court presumes in support of the trial court’s findings the existence of every fact the trier could reasonably deduce from the evidence. (People v. Green (1996) 50 Cal.App.4th 1076, 1085.)
The prosecution advanced a theory that the crime was motivated by gang animus, and some evidence of the parties’ alleged rivaling gang affiliations was adduced at trial. However, finding separate objectives for the exact same conduct -- firing into a vehicle containing three occupants -- parses defendant’s criminal objectives too finely. The goals of exacting revenge for a fight motivated by gang affiliation, and the act of demonstrating the supremacy of defendant’s gang, are too closely intertwined to impose multiple punishments. That is, if the gang evidence is given credence, the objectives are incidental to each other. This case is not one where there is a course of conduct, such as a rape with multiple penetrations, where we can look to each volitional act and find a separate and distinct criminal objective. (See, e.g., People v. Harrison (1989) 48 Cal.3d 321 [defendant harbored separate intents to obtain gratification with each sexual penetration].) Here, defendant rapidly fired a burst of shots into an occupied vehicle, and it is unreasonable to assume defendant had time to reflect on his conduct between shots, or for his objective to shift and change course.
Respondent’s cited authority does not persuade us otherwise. In People v. Liu (1996) 46 Cal.App.4th 1119, the court found that the crime of possession of a silencer was indistinguishable from the conspiracies to kidnap and kill two victims, as the silencer was obtained by a co-conspirator for the purpose of carrying out the planned murders. Therefore, it was determined that the sentence for possession of the silencer had to be stayed under section 654. (Liu, at p. 1136.) However, the court concluded the multiple punishment for the two conspiracies -- as to each separate victim -- was permissible because they involved separate intents and motives. (Id. at p. 1135.) In People v. Akins (1997) 56 Cal.App.4th 331, the court determined that robberies of two different victims were not part of an indivisible course of conduct designed to benefit a criminal street gang, as the crimes involved two different victims, were committed at separate locations, and were separated by time. Therefore, under both the multiple-victim exception, and because of the evidence of multiple intents, the court determined that section 654 did not bar the imposition of multiple gang enhancements. (Akins, at pp. 339-341.)
In Neal, the Supreme Court acknowledged that “ ‘[i]f only a single act is charged as the basis of the multiple convictions, only one conviction can be affirmed, notwithstanding that the offenses are not necessarily included offenses. It is the singleness of the act and not of the offense that is determinative.’ Thus the act of placing a bomb into an automobile to kill the owner may form the basis for a conviction of attempted murder, or assault with intent to kill, or malicious use of explosives. Insofar as only a single act is charged as the basis for the conviction, however, the defendant can be punished only once.’ ” (Neal, supra, 55 Cal.2d at p. 19.) In Neal, the Supreme Court concluded that the act of arson, which was perpetrated as a means of attempted murder, was merely incidental to the primary objective of killing the victims. As such, multiple punishment was barred by section 654. (Neal, at p. 19.)
Here, we have a single-transaction shooting, where there was no time for reflection. The act of shooting at an occupied vehicle can plainly be viewed as incidental to any intended assault upon the car’s occupants; the acts are inextricably intertwined. As such, we necessarily conclude that multiple punishment is foreclosed by section 654.
Defendant contends that the case should be remanded so that the trial court can determine which sentence should be stricken. This is unnecessary, as the sentence can be modified by this court. “If a trial court violates section 654, the proper remedy on appeal is not reversal of the counts involved, but elimination of the penalty for all but one of them (the one carrying the greatest penalty, if the penalties are disparate), by staying execution of, or simply striking, the terms of imprisonment for all but one of them. [Citations.]” (People v. Davis (1989) 211 Cal.App.3d 317, 323; see In re McGrew (1967) 66 Cal.2d 685, 688; People v. Diaz (1967) 66 Cal.2d 801, 807 [“If multiple punishment has been erroneously imposed, the appropriate procedure on appeal is to eliminate the effect of the judgment as to the lesser offense or offenses insofar as the penalty alone is concerned”].)
The goals of section 654 can be achieved in this case by staying the sentence on count 3. Count 3 charged defendant with assault on Star Angeletti. The trial court stayed the gun enhancement as to this count. A stay of this sentence permits the shooting at an occupied vehicle sentence to apply to this victim, and avoids violation of section 654, as it eliminates the overlap in victims for both crimes. Also, a stay of this sentence permits imposition of the greatest penalty, the five year term for shooting at a vehicle.
See People v. Guilford (1984) 151 Cal.App.3d 406, 410 [stay of term on particular count requires enhancements on that count also be stayed].
2. Statements by the Confidential Informant
a. Hearsay
Defendant next contends that the statements by the confidential informant, introduced by Detective Gunner, were inadmissible hearsay not falling within any exception. Although we agree that the statements were hearsay, not falling within any exception, we find the error to be harmless.
Hearsay is an out-of-court statement offered for the truth of the matter asserted. (Evid. Code, § 1200.) Generally, it is inadmissible, unless it falls into one of the enumerated exceptions to the hearsay rule. (Id., § 1220 et seq.)
At trial, Gunner testified to the double hearsay statement of a confidential informant who told him that she heard that a “Joseph” shot a “Jamaal” at Food-4-Less, and that they were both gang members. Also, the informant stated that Joseph used to live with someone named Vincent on Division Street. She did not know Joseph’s or Jamaal’s last name. Defendant objected that the statements were hearsay. The trial court disagreed, concluding that the statements were not introduced for the hearsay purpose of proving that Joseph shot Jamaal. Rather, the trial court concluded that they were introduced to explain how Gunner’s investigation of Joseph unfolded. The objection was overruled, subject to a motion to strike.
Evidence may be admitted for a nonhearsay purpose if it is relevant to a matter at issue in the case. (People v. Turner (1994) 8 Cal.4th 137, 189 [“An out-of-court statement is properly admitted if a nonhearsay purpose for admitting the statement is identified, and the nonhearsay purpose is relevant to an issue in dispute”].) Thus, hearsay evidence may be properly admitted to prove, for example, Gunner’s state of mind and the reasons he began to investigate Joseph as a suspect in the killing of Jamaal.
Defendant argues that Gunner’s state of mind is not relevant. We disagree. Such “course of investigation” testimony is routinely admitted at trial. Respondent argues that any relevance objection was waived, as defendant only objected to the evidence on hearsay grounds. This same argument was flatly rejected in People v. Scalzi (1981) 126 Cal.App.3d 901. The court concluded that a separate relevance objection was unnecessary, finding that “where, as herein, the evidence is totally devoid of any nonhearsay probative value, the ‘inadmissible hearsay’ objection suffices to preserve appellate review.” (Id. at p. 907.) We similarly conclude that no separate relevance objection was required to preserve the issue for appeal, as the hearsay objection and subsequent motion to strike necessarily encompassed the relevancy objection as to any proffered nonhearsay purpose.
Both parties devote extensive argument to the applicability of Evidence Code section 1250, an exception to the hearsay rule, which permits admission of out-of-court statements for their truth to prove the declarant’s then existing physical or mental state. (Evid. Code, § 1250, subd. (a).) Evidence Code section 135 defines “declarant” as “a person who makes a statement.” Clearly, the exception is inapplicable, as the out-of-court statements in dispute here were not offered to prove the declarant’s state of mind (i.e., the confidential informant), and in any event, the informant’s state of mind was not relevant. As such, this exception does not apply, and the evidence of what the confidential informant told Gunner that she had heard from someone else was double hearsay, not admissible under any exception to the hearsay rule.
Although we conclude that the statement was hearsay, not falling within any exception, the error in admitting it was harmless. A reviewing court will reverse a conviction only when a defendant is prejudiced by the error. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) That is, a conviction will only be reversed when it is reasonably probable a result more favorable to the defendant would have occurred in the absence of the error. (Ibid.) In this case, ample evidence supports the jury’s verdict. Several witnesses testified -- including defendant -- that he was at the Food-4-Less on the night of the shooting. Store cameras confirm his presence at the store, and that he was wearing a distinctive white jacket with black spots. The witnesses described a person fitting defendant’s description as the shooter and testified the shooter was wearing a white jacket with black spots. Such a jacket was recovered in a search defendant’s home, in his closet. A gun was recovered when defendant was arrested in a stolen vehicle, in the glove box. The ballistics of the gun matched the bullet removed from Jamaal.
Also, a limiting instruction was given, instructing the jury that “[d]uring trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other. This refers to... [¶]... Detective Gunner’s testimony concerning information received [from] a confidential informant and what investigative action he took based on that information.” We should presume that the jury followed the court’s instructions. (People v. Turner, supra, 8 Cal.4th at p. 190.) There is nothing to indicate that the jury improperly considered Gunner’s testimony for its truth. In fact, the jury found the gang allegations to be “not true, ” even though Gunner testified that the informant told him Joseph and Jamaal were gang members. Clearly, ample evidence supports the verdict, and it is not reasonably probable that a more favorable result would have been achieved had the evidence been excluded.
b. Confrontation of witnesses
Defendant also complains that admission of the statements of the confidential informant violated his constitutional right to confront the witnesses against him. Under the Sixth Amendment of the United States Constitution, a defendant has the right to confront and cross-examine the witnesses presented against him. (Douglas v. Alabama (1965) 380 U.S. 415, 418-419.) However, the record reveals no objection at trial on this basis. A general hearsay objection is insufficient to preserve a constitutional claim on appeal. (People v. Chaney (2007) 148 Cal.App.4th 772, 779 (Chaney) [finding that hearsay objection did not preserve Sixth Amendment objection].)
Defendant argues that the objection was not waived, reasoning that any objection on this basis would have been futile, as the trial court overruled the hearsay objection, and therefore would have necessarily denied the confrontation clause objection. Defendant cites People v. Kitchens (1956) 46 Cal.2d 260 (Kitchens), where the Supreme Court concluded that an objection to the admission of evidence was not waived where “an objection would have been futile... ‘[t]he law neither does nor requires idle acts.’ ” (Id. at p. 263.) However, the Kitchens decision concerned an objection which would have been baseless at trial, but was applicable on appeal due to a change in the law following trial. Such is not the case here. No change in law occurred, and an objection on the basis of the confrontation clause would not have been futile or baseless within the meaning of Kitchens. “ ‘[A] trial objection must fairly state the specific reason or reasons the defendant believes the evidence should be excluded. If the trial court overrules the objection, the defendant may argue on appeal that the court should have excluded the evidence for a reason asserted at trial. A defendant may not argue on appeal that the court should have excluded the evidence for a reason not asserted at trial.’ ” (Chaney, supra, 148 Cal.App.4th at p. 778.) As such, any objection on this ground has been waived.
The other cited case, People v. Redmond (1981) 29 Cal.3d 904, is also of no help to defendant. In that case, the court had concluded that an objection had been preserved by the request for an instruction on the issue. (Id. at p. 916.)
Clearly, a Sixth Amendment analysis is very different from a hearsay analysis. “A Crawford analysis is distinctly different than that of a generalized hearsay problem. Crawford established that the Sixth Amendment bars the ‘admission of testimonial statements of a [declarant] who [does] not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.’ [Citation.]” (Chaney, supra, 148 Cal.App.4th at p. 779, citing Crawford v. Washington (2004) 541 U.S. 36.)
Defendant alternatively contends that the failure to object on this basis constitutes ineffective assistance of counsel. We disagree. “Under both the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution, a criminal defendant has a right to the assistance of counsel. [Citations.] This right ‘entitles the defendant not to some bare assistance but rather to effective assistance.’ [Citation.]” (People v. Mitchell (2008) 164 Cal.App.4th 442, 466.) In order to demonstrate ineffective assistance of counsel, defendant must show that counsel’s performance fell below an objective standard of reasonableness, and that he was prejudiced by counsel’s performance. (Id. at p. 467.)
Here, defendant has not established a “ ‘reasonable probability that, but for counsel’s [failure to object], the result of the proceeding would have been different.’ [Citation.]” (People v. Nguyen (2010) 184 Cal.App.4th 1096, 1122, fn. omitted.) Even if the confrontation clause objection had been preserved, any error in admitting the evidence was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.) Because the evidence in this case was substantial, defendant cannot establish prejudice. Therefore, the ineffective assistance of counsel claim necessarily fails.
“ ‘[T]he mere failure to object rarely rises to a level implicating one’s constitutional right to effective legal counsel.’ ” (People v. Mitchell, supra, 164 Cal.App.4th at p. 467.) Nevertheless, because we can discern no prejudice, we need not reach the question of whether defense counsel performed deficiently by failing to object.
c. Due process
Defendant also argues that Detective Gunner’s failure to reveal the identity of the confidential informant violated his right to due process, and denied him a fair trial. At trial, Gunner refused to reveal the identity of the confidential informant during cross-examination, and defense counsel moved to strike his testimony on this basis. The motion to strike was denied by the trial court. Gunner refused to disclose the identity of the informant under Evidence Code sections 1040 and 1041. Evidence Code section 1040 makes privileged “official information” which is acquired in confidence by a public employee in the course of his or her duties. Evidence Code section 1041 gives a public agency a privilege to refuse to disclose the identity of a person furnishing information, where “[d]isclosure of the identity of the informer is against the public interest because there is a necessity for preserving the confidentiality of his identity that outweighs the necessity for disclosure in the interest of justice.” (Id., § 1041, subd. (a)(2).)
Notwithstanding these privileges, disclosure may be required “when it appears from the evidence that an informer is a material witness on the issue of the defendant’s guilt, the informer’s identity may be helpful to the defendant and nondisclosure would deprive the latter of a fair trial.” (Honore v. Superior Court (1969) 70 Cal.2d 162, 168.) Here, it is clear that the confidential informant was not a material witness on the issue of defendant’s guilt; the testimony was admitted for the limited purpose of explaining Gunner’s investigation. Therefore, we find no due process violation, or deprivation of a fair trial. And, even if there were an error, any error would be harmless, as discussed above.
Respondent argues that because no due process objection was made at trial, it has been waived. However, even if no due process objection is made, a defendant may narrowly “argue that the asserted error in admitting the evidence over his... objection had the additional legal consequence of violating due process.” (People v. Partida (2005) 37 Cal.4th 428, 435.) The Watson harmless error test applies in such circumstances, as under the facts of the case, no federal due process violation is cognizable, and instead a violation of state evidentiary law is at issue. (Ibid.)
3. Competency
Lastly, defendant argues that the trial court erred when it failed to appoint an expert to evaluate defendant’s competence to stand trial, failed to conduct a competency hearing, and failed to grant defendant’s motion for a new trial after additional evidence concerning defendant’s mental health was brought to the trial court’s attention. We disagree.
a. Facts concerning defendant’s competence
Defendant extensively participated in pretrial proceedings, agreeing to waive time for the trial to commence, participating in plea negotiations and in a Marsden hearing. (People v. Marsden (1970) 2 Cal.3d 118.) However, on the first day of trial, sheriff’s deputies informed the court that defendant was uncooperative and was naked on the floor in lockup. Defense counsel went to visit defendant in lockup and reported to the court that defendant was sitting with his pants down, swaying back and forth, and was mumbling incoherently. Defendant would not come to court after he was requested to do so by his counsel. Counsel declared a doubt under section 1368. The trial court proceeded with the trial without defendant’s presence.
When defendant still refused to attend trial, the court evaluated the evidence concerning defendant’s competence in deciding whether to order a hearing. The trial court noted defendant’s intelligent participation in pretrial proceedings. Also, sheriffs had reported that defendant received no injuries in jail, and that he had been taking his meals and acting normally in all respects. Also, jail personnel had seized a letter from defendant which was written by Joseph Torres, an inmate at Patton State Hospital, where Torres suggested that defendant act crazy in court to get sent to Patton, explaining that it was cool at Patton, because you could get “bitches and everything on weekends.” In light of these facts, the trial court concluded “there is no substantial objective evidence that would support 1368 proceedings. The evidence does support a finding that Mr. Ennis is malingering.”
Later, defense counsel requested an ex parte hearing, wherein counsel notified the court that defendant had previously been prescribed Zyprexa, and that defendant “blacked out” without it. Defendant was not aware that he had missed any portion of trial and believed he had attended trial. The court signed a medical order for the drug Zyprexa, but did not hold a section 1368 hearing.
Without receiving Zyprexa, defendant testified in his own defense.
b. The trial court did not abuse its discretion in refusing to appoint an expert to evaluate plaintiff’s competence to stand trial.
Under section 1367, a person is incompetent to stand trial 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).) A trial judge has the duty to inquire into the mental capacity of a defendant to stand trial whenever evidence presented during trial or prior to sentencing raises a bona fide doubt about a defendant’s competence to stand trial. (§ 1368, subd. (a).) A defendant is entitled to a competency hearing under section 1368 as a matter of law if there is substantial evidence showing his mental incompetency. However, where the evidence of incompetency is less than substantial, whether or not to order a competency hearing is within the discretion of the trial judge. (People v. Stiltner (1982) 132 Cal.App.3d 216, 222-223.)
Here, the trial court had numerous interactions with defendant, in which the court observed defendant’s behavior. Defendant participated extensively in the proceedings and ultimately testified coherently and intelligently in his own defense. Further, defendant’s aberrant behavior occurred only in connection with the trial proceedings, and was not displayed when defendant was in the jail facility. Further, he was in possession of a letter advising him to feign mental illness because his friend was housed at a state hospital, and touted its benefits over jail.
A trial court’s findings are entitled to substantial deference. “ ‘A strong showing is required before an abuse of discretion is deemed to result from the failure of the trial court to order a determination of present sanity.... “The ‘doubt’ mentioned is one that must arise in the mind of the trial judge, rather than in the mind of counsel for the defendant or in that of any third person [citation] and the determination of a motion for a hearing upon the issue of a defendant’s sanity at the time of the trial is one which rests within the sound discretion of the court. Necessarily, an appellate court cannot measure to a nicety the basis for the ruling, and the trial judge must be allowed a wide latitude.” (Inre Dennis (1959) 51 Cal.2d 666, 670-671.) Here, the trial court did not abuse its discretion in denying the hearing, as the evidence of incompetence was insubstantial.
Also, because there was not substantial evidence that defendant was incompetent, the trial court did not abuse its discretion in failing to appoint an expert. (People v. Ramirez (2006) 39 Cal.4th 398, 431 [finding no abuse of discretion when “there was no substantial evidence that defendant was mentally incompetent. Defense counsel’s request for a ‘psychiatric evaluation’ of defendant, standing alone, does not require the court to appoint such an expert or conduct a competency hearing”].)
c. The trial court did not abuse its discretion when it denied plaintiff’s motion for a new trial.
Defendant moved for a new trial, asserting that he had been denied a fair trial due to issues concerning his competency, introducing with his motion documents from mental health practitioners, including a 1998 diagnosis for psychosis and depression which recommended a prescription for Zyprexa, and a 2005 document recommending psychiatric monitoring of defendant. The trial court denied the motion. “In passing on a motion for a new trial the trial court has very broad discretion, and reviewing courts are reluctant to interfere with a decision granting or denying such a motion unless there is a clear showing of an abuse of discretion.” (People v. Davis (1973) 31 Cal.App.3d 106, 111.) For all of the reasons explained above, the trial court was well within its discretion in deciding not to order a competency hearing. Further, the newly introduced documents did not compel a different result, as the court had already been made aware of defendant’s prescription of the anti-psychotic Zyprexa, the documents were old, and reflected an improvement in defendant’s mental health over a number of years, and there was not substantial evidence indicating incompetence, due to the court’s interactions with defendant, his conduct in jail, and his receipt of a letter advising him to feign mental illness.
DISPOSITION
The judgment is affirmed as modified to stay the sentence on count 3. The superior court is directed to prepare an amended abstract of judgment and shall forward a certified copy of the same to the Department of Corrections.
WE CONCUR: RUBIN, Acting P. J. O’CONNELL, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.