Opinion
B183297
12-14-2006
THE PEOPLE, Plaintiff and Respondent, v. ALBAN META, Defendant and Appellant.
Janyce Keiko Imata Blair, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
Alban Meta (defendant) appeals from the judgment entered following a jury trial resulting in his conviction of willful, deliberate and premeditated murder with the use of a knife. (Pen. Code, §§ 187, 12022, subd. (b)(1).) At sentencing, the trial court imposed a term of 25 years to life, enhanced by a one-year term for the use of a knife.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends that the use at the guilt and sanity phases of his trial of the observations made by and the statements he made to the doctors and mental health professionals during the compelled competency evaluations (§§ 1367 et seq.) denied him due process. In the alternative, he claims that defense counsel should have objected to the use of such evidence during the guilt and sanity phases of the trial and that counsel should have had a psychiatrist other than Dr. Jack Rothberg appointed for the sanity examination. Defendant asserts that defense counsels failure to raise appropriate use immunity objections and the dual appointment of Dr. Rothberg denied him his Sixth Amendment right to adequate representation by trial counsel.
We conclude that the contention is forfeited as defense counsel would have been well aware of the use immunity afforded for the content of the competency evaluations (§ 1368) and failed to raise objections with respect to the use immunity so as to bolster the defense with the evidence that the mental health professionals had obtained about defendant during their evaluations. Furthermore, defendant was not denied his Sixth Amendment constitutional right to effective representation because of trial counsels failure to object and because of counsels requests for dual doctor appointments. There is no evidence of inadequate representation as it appears that the use of this evidence in defense and the dual doctor appointments constituted reasonable trial tactics.
We affirm the judgment.
THE FACTS
I. A Summary of the Pretrial Competency Proceedings
The trial commenced on December 6, 2004, well over five years following defendants February 26, 1999, arrest. The delay in commencing trial was due primarily to a series of incompetency proceedings. (§§ 1367 et seq.)
On November 10, 1999, as soon as the preliminary hearing was completed and the information was filed, the trial court suspended proceedings pursuant to section 1368. On May 24, 2000, in a court trial, the trial court found that defendant was mentally competent to stand trial. Criminal proceedings were resumed. On July 12, 2000, pursuant to section 1368, criminal proceedings were again suspended. On February 16, 2001, in a court trial, the trial court found that defendant was incompetent, and he was committed to Patton State Hospital (PSH).
On September 6, 2001, the medical director of PSH certified that defendant was restored to competency, and the trial court found that defendant was competent and ordered criminal proceedings resumed. On April 30, 2002, defendant entered a plea of not guilty by reason of insanity, and the trial court appointed two experts to evaluate sanity, Dr. Rothberg and Dr. Carl Osborn. (§ 1026.) On October 24, 2003, the trial court declared a doubt as to competency, and it again suspended criminal proceedings. (§ 1368.) Commencing on May 14, 2004, defendant had a jury trial on the issue of defendants mental competence. On May 26, 2004, the jury returned a verdict that defendant was mentally competent to stand trial.
Throughout the remainder of the proceedings, defense counsel continued to declare doubts as to defendants mental competence. She pointed out that in court defendant was acting strangely. However, the trial court rejected defense counsels offers of proof as to a lack of mental competence as it found that there was no change in circumstances following the jury trial on that issue.
During the mental competence proceedings to May 26, 2004, the trial court appointed a number of forensic psychiatrists and psychologists to evaluate defendants mental competence: Dr. Rothberg, Dr. Jeffrey Peterson, Dr. Michael Perrotti, Dr. Kory Knapke, Dr. Gregory Cohen, Dr. Gordon Plotkin, Dr. Barry Hirsch, Dr. Jean Carlin, Dr. John Philipsborn, and Dr. Kyle Boone. Early in the proceedings, upon a defense request, the trial court had appointed Dr. Ronald Markman to confidentially evaluate defendants ability to assist his trial counsel.
II. The Guilt Phase of the Trial
A. The Peoples Case-in-chief
1. The Events of the Stabbing
Shortly before 6:00 p.m. on February 26, 1999, Maria Gutierrez Guzman (Guzman) was seated in the drivers seat of her Ford Escort. She was proceeding eastbound on Beverly Boulevard and was stopped at the tri-light at Wilcox Avenue in Montebello. Defendant was seated in the Escorts right front passenger seat. Suddenly, bystanders saw defendant and Guzman fighting. During the fight, defendant got the best of Guzman and repeatedly hit her. Guzman was yelling for help and trying to get out of the Escort.
At the light, Danny Salas was stopped in his Porsche just to the left of Guzman. Salas looked over and observed defendant apparently hitting Guzman. He yelled for defendant to stop. Defendant gave Salas a hostile look. At that point, Salas saw defendant jump into the rear seat of the Escort. Defendant repeatedly hit Guzman and tried to pull her into the rear seat of the Escort by her hair. Salas soon realized that defendant was not hitting Guzman with his fist; he was stabbing Guzman repeatedly with a large knife. Salas said that Guzman was unarmed and fighting defendant "for her life."
Salas got out of his car with his metal anti-theft "Club." On the passenger side of the Escort, Salas threatened defendant with the Club, and defendant gave Salas another hostile look. Defendant got out of the Escort and ran off. Guzman, who was bleeding, got out the Escorts drivers door and collapsed on the pavement.
During the defense testimony, a defense investigator testified that Salas had told the investigator out of court that when Salas reached the Escorts passenger side, Salas said to defendant, "Im going to get you."
Salas and Raquel Quiroz, another motorist who was stopped in traffic behind the Escort, chased defendant in their cars into a nearby residential area. Salas flagged down a policeman, told the policeman about the stabbing, and drove off to find defendant. At another location in the residential area, Salas found defendant preparing to cross Wilcox Avenue. Salas cornered defendant on a residential driveway. The police officer drove up and held defendant at gunpoint. Defendant was arrested. At the stabbing scene, another police officer found a nine-inch kitchen-type knife on the rear floorboard of the Escort.
Guzman was transported to the hospital and died. The deputy medical examiner testified that the cause of death was multiple stab wounds. He said that Guzman had been savagely stabbed 36 times, in the head, face, chest, and upper back. One five-and-one-half-inch wound had pierced a lung, and the lung had collapsed. Other wounds to Guzmans back were six and seven inches deep. Guzmans face was cut from eye to mouth, and she had 11 wounds on her head and face alone. The wounds to Guzmans lungs and to her face, the latter being an area rich with blood vessels, would have caused massive bleeding. Guzmans toxicology tests were negative for drugs and alcohol.
2. Defendants Statements to the Police
After booking, Montebello Police Officer Norman Adams (Detective Adams) obtained a Miranda waiver from defendant (Miranda v. Arizona (1966) 384 U.S. 436) and interviewed him. Defendant told Detective Adams and his partner that he and Guzman had broken up nine months earlier. That afternoon, he had gone to Century City where Guzman worked. Defendant complained that Guzman had used his credit card to purchase a new BMW automobile and a new residence and said that he believed, because she had used his credit cards for these purchases, she owed him $15,000. After work, Guzman drove defendant to Montebello. At the stabbing scene, they started arguing. Defendant claimed that Guzman got a knife from somewhere inside the Escort and attempted to stab him. He blocked her, took the knife, and stabbed her twice. He said to her, "If you try to kill me, Ill kill you, bitch." He denied the use of intoxicants, and he offered no explanation as to why he ran from the Escort.
Defendant also told the detectives that he was unemployed, homeless, and was planning to leave California. He claimed that Guzman had been selling drugs. During the interview, the officers observed nothing unusual about defendants demeanor. The detectives asked defendant for a urine sample. Defendant agreed, but balked when he saw the powdered preservative inside the sample bottle. Defendant expressed a belief that the officers were trying to skew the results of the toxicology screen. The detectives emptied one bottle of preservatives, and defendant gave them the requested sample. After defendant returned the bottle to them, they returned the preservatives to the bottle. The urine sample defendant provided was negative for drugs and alcohol.
On March 1, 1999, Detective Adams and his partner attempted to reinterview defendant with the Albanian interpreter so as to obtain a videotaped record of defendants statements about the killing. Defendant insisted on seeing Guzman and their baby before agreeing to speak to the detectives, and Detective Adams terminated the interview. However, prior to the interviews termination, the detective added that it was impossible to see Guzman because she had died. Defendant then wanted to see Guzman in the morgue. Detective Adams asked why defendant wanted to see her. Defendant replied that he loved her. As far as the officers were aware, this was the first time that defendant had been told that Guzman was dead. Defendants response to the news of Guzmans death was apparently unemotional. The videotape of the abortive interview was played for the jury.
3. The Additional Evidence Relevant to Establishing Defendants Mental State
During the trial, Quiroz testified that at the time of the stabbing, she had noticed that defendants attire was shabby and that he was not well-groomed. She described defendants expression as he ran from the Escort as "scared" and "as a crazy person." The police officer who found defendant cornered on the driveway by Salas said that when he initially saw defendant, defendant was looking around as if he was thinking about running from the driveway. After the officer arrived, defendant was cooperative. Defendant had a cut on his hand and blood on his hands and clothing.
At the Montebello City Jail, civilian jailer John Mendez booked defendant. On the medical questionnaire, defendant denied that he was injured and said that he required no medication and no medical attention. Defendant told Mendez that he had no special medical conditions, that he had never been a mental patient, and that he was not under psychiatric care. Mendez saw no indication that defendant had physical difficulties or that his mental state was impaired. Defendant apparently understood English; he was responsive and followed instructions.
Estevan Lopez was a civilian corrections officer at the Montebello City Jail. The day after defendant was booked, Lopez observed defendant outside his jail office speaking on the pay telephone. Loudly and angrily, defendant repeatedly said to the other party on the telephone that "he hopes the bitch dies." Defendant then spoke to the other party in a foreign language. Lopez telephoned one of the local police officers and gave him the information about what defendant had said.
Lopez testified that later that day, he also overheard defendant tell a federal jail inmate, Vito Sotello (Sotello), that defendant was upset that she did not bring the kid because defendant was supposed to kill both of them, not just her. During cross-examination, defense counsel elicited that Sotello was now dead. Lopez admitted that the only portion of defendants comment that he had actually overheard was defendant saying that he was upset that she did not bring the baby. Lopez explained that Sotello was the person who had informed the police officer about the entire statement that defendant purportedly made about defendant wanting to kill both the mother and the child.
Alfredo Alcaraz, another federal jail inmate, testified that he had heard from another inmate, Chavez, that defendant was asking for advice on what to say in court. Alcaraz had told defendant, "Youre lucky if you dont get the death sentence." Alcaraz was impeached with his preliminary hearing testimony that defendant had personally asked Alcaraz how much time he was going to get. After the impeachment, Alcaraz repeated that defendant did all his talking to Chavez, who, in turn, asked Alcaraz what to say to defendant. Alcaraz said that he did notice that every time he had passed defendant in his cell, defendant was covered up in the corner as if he was cold.
B. The Defense
1. James Jones
James Jones, a federal jail inmate, testified that three to four hours after his booking, defendant appeared to be "very hostile" and was "screaming in his cell." Jones recalled that defendant, who was confined alone, was talking to someone else when no one was there, defendant ran back and forth inside his cell, and defendant made a "whole lot of noise" screaming and hollering. Jones said that it sounded as if defendant was speaking to his wife or a girlfriend. Defendant said things like, "[Y]ou made me do this." Late at night, Jones overheard defendant lash out verbally at a female, wishing she was dead or something of that nature.
Sotello, Alcaraz, Chavez, and Jones were among a number of federal keep-away inmates housed in the Montebello City Jail. They had all obtained reduced federal sentences for their testimony in federal cases and were jail trustees.
2. Nurse Kaufman
Charlotte Kaufman was a liaison nurse between the Los Angeles County jail inmates and the Department of Mental Health. On March 17, 1999, at defense counsels request, she evaluated defendants mental condition. She could not recall seeing defendant, but after her interview with him, she had recommended that defense counsel obtain a mental health evaluation. She claimed that she would not have made that recommendation unless she had observed target symptoms of a psychotic episode. These symptoms might include auditory hallucinations, perplexity, difficulty processing information, warped reality, delusions, or paranoia.
Kaufman said that it was not unusual for someone mentally ill to be housed in the general jail population. She explained that the deputy sheriffs operating the jail do not request special housing for an inmate unless his conduct presents a problem. Kaufman claimed that generally, malingering is hard to do. She explained that there is a special "affect" (your mood as it is displayed by your facial expressions) that one observes with the truly mentally ill. She also gave her opinion that administering anti-depressants to someone with situational depression should resolve the depression in three to four weeks.
3. Dr. Rothberg
Before trial, Dr. Rothberg, a forensic psychiatrist with a doctorate in psychology, evaluated defendant for competency. Later, defense counsel also had Dr. Rothberg appointed pursuant to section 1026 to render an opinion on and to testify to defendants sanity. Dr. Rothberg saw defendant on January 15, 2001, May 2, 2002, May 14, 2002, and twice in May or June 2004. The doctor said that based on his evaluation of defendant on January 15, 2001, he had concluded that defendant was acutely disturbed. He said that defendant was one of the 20 most psychotic persons he had ever encountered. Defendants demeanor and affect were bizarre, and defendant presented an "extremely creepy" smile. Defendant acted as if he was suffering from hallucinations, but denied having them. Defendant minimized that anything was wrong with him. Defendant was confused and disorganized and could convey no information about himself. Defendant denied mental illness, and defendant was not even sure that the murder victim had died. The doctor concluded that defendant was totally detached from reality. On January 15, 2001, defendant was not taking psychotropic medication.
At trial, Dr. Rothberg gave his opinion that defendant was psychotic at the time of the stabbing. He explained what he meant. The doctor said that defendants perceptions and emotions were distorted to the point that they failed to conform to reality. He gave his opinion that defendant was suffering from schizophrenia. The doctor explained that schizophrenia involves delusions or hallucinations and that the person has a flat affect and difficulty relating to others. There is a split between a persons internal emotional life and what the person presents, and the persons internal life is disconnected from reality. There are distortions between reality and the mentally ill persons own world, so that the observer would not be able to tell what the mentally ill person was thinking.
Dr. Rothberg believed that his conclusion was correct as the observations of nurse Kaufman, Dr. Markman, and Dr. Hirsch conformed to his conclusion that defendant was acutely psychotic. The doctor also believed that his diagnosis was supported by the length of time that defendant had to be hospitalized in PSH before competency was restored and by PSHs use of Zyprexa for treatment, Zyprexa being a medication aimed at the treatment of just this sort of mental illness. The doctor opined that defendant could not be malingering because defendant never presented "any organized plan [calculated] to persuade" others that he was acutely mentally ill. No one at PSH, where the doctors had time to observe the patients, had ever treated defendant as if he was a malingerer.
After reviewing all the materials at hand, including Dr. Markmans March 22, 1999, report about his interview with defendant, Dr. Osborns sanity report, the police reports, defendants PSH medical records, the reports of the other mental health experts evaluating defendants mental competency, and the other materials pertinent to his opinion, Dr. Rothberg had concluded that defendants commission of the crime was bizarre and not a "rational action."
The doctor pointed out that defendant had committed the stabbing in broad daylight in front of any number of witnesses at a busy city intersection. Defendant believed that he had stabbed Guzman only twice, a strange claim given the number of savage stabbings that he had inflicted on her. At one point, defendant reported to Dr. Rothberg that he had heard voices before the stabbing, which confirmed an onset of a mental disorder at ages 18 to 22, which is normal for schizophrenia. Also, defendants conduct during one interview made it appear to the doctor that defendant was hearing voices. However, defendant denied hearing them. Additionally, defendant had told so many different versions of the stabbing that the incessant story-telling suggested confabulation, i.e., that defendants psychosis had interfered with him having a full memory or any memory of the stabbing. The doctor theorized that the telling of so many versions of the stabbing indicated that defendants disease had caused him to inadvertently make up facts to fill the void in his memory.
Dr. Rothberg testified that defendants psychosis would affect defendants perceptions on February 26, 1999, in a variety of ways. It would affect his emotions and his perceptions of the events around him. It would cause him to misinterpret the acts of others around him. It would affect his judgment because he would be misprocessing information. It would cause him to act on his perceptions of events that were not occurring. If defendant was floridly schizophrenic during the stabbing, he would be unable to connect thoughts in a logical sequence.
Dr. Markman, a forensic psychiatrist, also testified in defense. He said that on March 22, 1999, he had attempted to interview defendant. During the interview, defendant had been emotionally labile, i.e., defendant had a series of emotional ups and downs. Dr. Markman concluded that defendant was paranoid and grandiose in presentation. In some areas, defendant could not provide information. This included even the most simple type of meaningful identifying information. In other areas, defendant made bizarre claims and statements. Ultimately, defendant became so angry that he stood up and walked out, terminating the interview. Dr. Markman reached two possible conclusions: defendant was either psychotic, or he was malingering. The doctor never saw defendant again and could not draw any valid conclusions from the aborted interview.
During the interview, defendant did tell Dr. Markman that he had a different name than his own and that his ex-girlfriend was married to someone who looked like him. Defendant disclosed that he was Albanian and said that he wanted the Italian ambassador to arrange to have him released. Defendant reported that his case was dismissed. He said that he believed that "they" were taking all his money, that Guzman was not dead, and that he was charged with attempted murder. He made grandiose statements, such as, "I know everything," and said that people were out to get him and to do him in. Defendant also said that his food was contaminated, and as a result, he had contracted AIDS.
During final argument for the guilt phase of the trial, defense counsel urged that defendant had schizophrenia. He argued that because of defendants particular and acute mental disorder, at the time of the stabbing, defendant could not formulate the intent to kill and malice aforethought. Further, defendants mental illness meant that defendant did not have the capacity to deliberate and to premeditate. Defense counsel asserted that defendants mental state at the time of the stabbing required that the jury return a verdict that defendant was guilty of involuntary manslaughter.
After deliberations, the jury returned a verdict of first degree deliberated and premeditated murder with the use of a knife.
III. The Sanity Phase of the Trial
A. The Defense Case for Insanity
1. Dr. Rothberg
At the sanity phase of the trial, Dr. Rothberg testified that on February 26, 1999, defendant was psychotic and insane. The doctor explained the standard for sanity and opined that defendant acted while he was in an intense delusional state and that defendant had not appreciated what he was doing would kill Guzman.
Dr. Rothberg explained that he did not examine defendant at or near the time of the offense. No doctor would have been there at the stabbing to ask defendant what he was thinking or to observe defendants demeanor. Thus, in evaluating sanity, a doctor necessarily has to extrapolate what had occurred during the stabbing in defendants head. Later, defendant had been unable to tell Dr. Rothberg what he was thinking during the stabbing. During his initial interview with defendant, the doctor was unable to obtain from defendant any consistent information or statements that explained even things totally unrelated to defendants criminal responsibility. The doctor concluded that defendants psychosis was preventing defendant from having any clear memory of the events of the stabbing. The doctor said that it appeared to him that defendant was creating stories in a delusional way to explain a variety of events that occurred at the time of the killing. In 2002, from the whole picture of the offense and the information known to the doctor, the doctor had concluded that defendant "really did not appreciate what was going on at the time."
Subsequently, Dr. Rothberg had another two and a half years of observations of defendant that confirmed his original opinion. He had reinterviewed defendant. All he obtained from defendant were further bizarre statements. It was still his opinion, perhaps more forcefully so, that during the stabbing, defendant did not appreciate what was going on and did not understand the nature or the quality of his acts. The doctor believed that following the stabbing, defendant got out of the car, saw the blood, and realized something had happened. So he ran. The doctor also used the observations of defendants conduct and statements during his interviews with the competency evaluators as a basis for his opinion of insanity. He concluded from reviewing Dr. Osborns, Dr. Carlins, Dr. Petersons, Dr. Perrottis, and Dr. Hirshs reports on the mental competency examinations that defendant had schizophrenia at the time of the stabbing and that defendant was not malingering.
The doctor acknowledged that he had spoken to defendants brother about defendants condition. The brother had stayed with defendant for two weeks about two months before the stabbing. The brother did not report unusual behavior. Notwithstanding the brothers claim, the doctor explained that the circumstances of the murder strongly suggested insanity. Defendants conduct was intense. The offense suggested delusional behavior because defendant had stabbed Guzman so many more times than was necessary to kill her. The doctor said that defendants various explanations to others, including to the competency evaluators, for the stabbings were repeatedly different and bizarre. Dr. Rothberg went through several of defendants explanations for the crime. He said that the various claims with respect to how the crime occurred indicated that defendant was totally unaware of what he had done.
Dr. Rothberg explained the reasons why he believed malingering was highly unlikely. Defendants claim of self-defense in the circumstances of having committed the crime in front of so many witnesses and having stabbed the victim so many times suggested deranged thinking. Defendants later claims about the events of the stabbing showed how delusional and absurd his claims were. The doctor was certain that defendant had not suffered merely from post-offense depression.
2. Dr. Moreno
Dr. Roberto Moreno testified that at intake at PSH on May 2, 2001, he had interviewed defendant to evaluate his mental condition. The doctor did not recall much about the interview and was largely relying upon his medical records. The doctor said that at intake, defendant was "negativistic," meaning that defendant was contradicting everything the doctor asked him. Defendant denied knowing why he had been arrested, and defendant claimed that he had cut his own finger. He denied hallucinations and previous medical care. Dr. Moreno concluded that there was a strong flavor of paranoia in defendants responses. The doctor agreed that defendant was bizarre during the interview, that defendant was seemingly oblivious to the consequences of the charges, and that defendant appeared to be quite psychotic. The doctor said that in the PSH medical records, a psychiatric nurse had also reported that day that defendant exhibited the signs and symptoms of psychosis. However, the nurse did not check the boxes for paranoia and delusional and did not report observing signs that defendant was hallucinating.
The doctor could not diagnose defendants condition after only a 45-minute interview. The hospitals medical records show that eventually, defendant was diagnosed as having depressive disorder, which was at least in part the result of the commission of the crime and his subsequent incarceration. Unlike Dr. Rothberg, Dr. Moreno said that the Zyprexa defendant had been prescribed was not a medication prescribed exclusively for psychosis. He said that Zyprexa works well with negavistic symptoms or mental disorder. Defendant had been given a maximum dosage of Zyprexa, indicating that defendant was quite ill. Defendant was also given Klonopin, a tranquilizer, at 50 percent of the maximum dosage. Dr. Moreno then agreed that such medications were inconsistent with depression and were consistent with psychosis.
B. The Peoples Rebuttal: Dr. Osborns Testimony
Dr. Osborn testified that he is a forensic psychologist and a University of Southern California professor of psychology. In May 2002 he interviewed defendant for the purposes of evaluating sanity. The doctor said that he had attempted to obtain an Albanian interpreter for the initial interview with defendant, but it could not be arranged. Thus, he interviewed defendant in English. Defendants English was good, and the doctor detected no difficulty with defendant understanding him. At a later interview, Dr. Osborn interviewed defendant with an Albanian interpreter to eliminate the possibility that language difficulties would skew his conclusions.
In interviewing defendant on these two occasions, Dr. Osborn saw no signs of psychosis, despite reviewing a number of reports from previous evaluators that indicated defendant was seriously disturbed. At the initial interview, defendant reported that he had started hearing voices in high school that told him to hit others. Defendant told Dr. Osborn that currently, he also hears voices that talk about his son and girlfriend. During the second interview, defendant reported no symptoms of mental illness, and the doctor observed no signs of the same. During the second interview, defendant claimed that his troubles arose after and as a result of the death of the victim. After interviewing defendant twice and reviewing the material related to the offense and the previous medical reports concerning defendant, including a number of competency evaluations, the doctor had strongly concluded that defendant was not legally insane.
To support his opinion, the doctor referred to defendants claims about the commission of the offense. He said that defendant had told him that Guzman had suddenly become suicidal. She reached back into the backpack he was carrying as he sat in the Escorts rear seat. She took out his knife and attempted to stab herself. He wrestled with her over the knife and cut his hand. She won the struggle and stabbed herself twice. Because he saw the blood and did not want to be involved, he jumped out of the car and ran.
Dr. Osborn concluded that the above version of events did not show the kind of disturbance of cognition necessary for insanity. Defendant indicated that he knew a knife could harm someone, and he acknowledged that he was aware that the victim could be harmed by an assault. All of defendants versions of the events of the stabbing were linear and logical and on the surface made sense. Defendant discussed cause and effect. He fled the scene after the stabbing, which indicated that he knew the difference between right and wrong. The claim of self-defense similarly showed a realization of right and wrong. Defendants statements to others at the jail suggested sanity. In Dr. Osborns opinion, defendants claims demonstrated rage, not insanity.
The doctor explained the other factors supporting his conclusion. He said that the lack of mental illness history did not support a claim of insanity, and Dr. Rothbergs extrapolation approach to the issue of sanity was unreliable; Dr. Osborn claimed that such an approach went "beyond the data." He also disclosed to the jury the details of the entire story of the weeks preceding the killing that defendant had revealed to him during the interview.
During final argument, the prosecutor urged the jury to consider not only Dr. Rothbergs and Dr. Osborns opinions. She also asked the jury to consider all the doctors reports regarding defendants condition. Defense counsel argued that defendant was insane when he committed the offense.
After deliberations, the jury returned a verdict that defendant was sane.
DISCUSSION
I. The Contention
On appeal, defendant points out that at the guilt and at the sanity phases of his trial, the prosecutor and defense counsel used his compelled statements from the competency evaluations (§ 1368) without limitation. He contends that "the use of this information at trial constituted prejudicial error of constitutional dimension in multiple ways." In the alternative, apparently anticipating our conclusion of a forfeiture, defendant argues constitutionally ineffective trial counsel. He claims that his defense counsel was constitutionally ineffective because counsel did not prevent the use of the statements defendant had made during the court-compelled competency examinations and the use of the evaluators observations. Further, he asserts that his defense counsel was ineffective because she failed to object when the prosecutor referred to these same statements he had made during the competency examinations and to the evaluators observations. He also complains about the dual appointments of Dr. Rothberg.
The contention lacks merit.
II. The Relevant Legal Principles
In Centeno v. Superior Court (2004) 117 Cal.App.4th 30, the court summarized the pertinent legal principles, as follows.
"A criminal defendants Fifth and Sixth Amendment rights may be implicated by a compelled custodial psychiatric examination. `A criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding. (Estelle v. Smith [(1981)] 451 U.S. 454, 468 [competency].) However, if the information obtained by the psychiatrist at a compelled competency examination is admissible solely for the purpose of determining competency, no Fifth or Sixth Amendment issue arises. (Ibid.) In addition, `if a defendant requests [a psychiatric] evaluation or presents psychiatric evidence, then, at the very least, the prosecution may rebut this presentation with evidence from the reports of the examination that the defendant requested. (Buchanan v. Kentucky (1987) 483 U.S. 402, 422-423 [involuntary hospitalization].)
"With respect to competency proceedings, the California Supreme Court has adopted a judicially declared rule of unqualified immunity that is reasonably implied from the Penal Code provisions governing competency proceedings. (People v. Weaver (2001) 26 Cal.4th 876, 960.) A psychiatrist appointed to examine a defendant for competency may not subsequently testify on the issues of the defendants guilt, sanity or penalty. (Id. at pp. 959-963.) The purposes of the rule of immunity are to protect a defendants privilege against self-incrimination, promote the public policy of not trying persons who are mentally incompetent, and prevent violations of the federal Constitution. (Id. at p. 960.) The California rule of judicial immunity is broader than the federal rule for compliance with the Fifth and Sixth Amendments. (People v. Arcega (1982) 32 Cal.3d 504, 523, fn. 6 [(Arcega)].)
"The California Supreme Court has adopted a different rule with respect to sanity proceedings. (People v. Williams (1988) 44 Cal.3d 883, 961.) `The appointment of a psychiatrist pursuant to [Penal Code] sections 1026 and 1027 is made only in response to the defendants entry of a plea of not guilty by reason of insanity. The examination, initiated at the behest of the defendant, is not "compelled . . . . Statements made to the examining psychiatrist are admissible at the guilt and sanity phases of the trial if the defendant puts his mental state in issue. (Ibid.; cf. People v. Williams (1988) 197 Cal.App.3d 1320, 1325-1326 [inadmissible at guilt phase if defendant does not place his mental state in issue at the guilt phase].) . . . `[W]hen a defendant initiates a psychiatric examination by court-appointed experts, admission of the defendants statements in a subsequent proceeding in which he has placed his mental state in issue violates neither his Fifth Amendment right against self-incrimination nor his Sixth Amendment right to counsel. Even if the defendant or his counsel is not aware at the time of the examination of all of the possible uses to which his statements might be put, he is on notice that they are admissible in rebuttal in such proceedings. (Id. at pp. 961-962.)
"Although competency and sanity proceedings appear on a superficial level to be similar, their inherent differences support their different treatment in the immunity context. A defendant does not voluntarily place his competency in issue. The trial court, acting on its own or at the suggestion of defense counsel in the absence of consultation with the defendant, initiates the competency proceedings by declaring a doubt as to a defendants competency. A defendant may not refuse to submit to the psychiatric examinations which follow this declaration of doubt and a defendant may not waive his right to a trial on the issue of his competency. In this respect, the examinations are truly compelled. Moreover, competency proceedings are civil in nature and collateral to the determination of defendants guilt and punishment. A plea of insanity, on the other hand, is a tactical voluntary decision made by a competent defendant with the advice of counsel. It may be made only by the defendant and may be withdrawn by him. (But see Baqleh v. Superior Court [(2002)] 100 Cal.App.4th [478,] 500, fn. 6.) Thus, the psychiatric examinations which flow from a plea of not guilty by reason of insanity are done at the behest of the defendant and are not compelled. (People v. Poggi (1988) 45 Cal.3d 306, 329-330.) In addition, sanity proceedings are an integral part of the determination of defendants guilt and punishment. (People v. Superior Court (Mitchell) (1993) 5 Cal.4th 1229, 1233 [guilt and penalty proceedings part of single, unitary criminal proceeding].)" (Centeno v. Superior Court, supra, 117 Cal.App.4th at pp. 42-43.)
Recently, the California Supreme court has also settled in its decision in People v. Pokovich (2006) 39 Cal.4th 1240, 1253, that the Arcega rule of judicial immunity extends to a defendants impeachment with the statements he made during the competency evaluations. Also, in the decision in People v. Jablonski (2006) 37 Cal.4th 774, 802-803, the court settled that the immunity conferred in Arcega is coextensive with a defendants federal Fifth Amendment protections.
III. The Analysis
Defendant properly characterizes his record when he points out that defense counsel and the prosecutor used various of the statements he made during the competency evaluations at his trial, as well as the observations the evaluators made of him during their interviews. Pursuant to the legal principles outlined above, defense counsel, if she had chosen to do so, could have asserted the Arcega rule of judicial immunity to prevent the use of defendants statements and the observations made during the competency examinations. Also, if defense counsel had not had Dr. Rothberg appointed for the dual purposes of making the competency and the sanity evaluations, defense counsel also could have further insulated defendants compelled statements during the examinations and the observations from use at trial.
However, on this record, defendants contention is not cognizable. The California Supreme Court settled in People v. Weaver, supra, 26 Cal.4th 876, 961, that the failure to object on Arcega grounds and pursuant to the decision in Estelle v. Smith, forfeits his contention on appeal. Also, the issue of whether dual appointments were appropriate is also forfeited where defense counsel deliberately seeks and obtains such appointments. (See People v. Weaver, supra, at p. 962.) Defense counsel was never asked during the trial about why she made these particular tactical choices. But, it is apparent that defense counsel, who was a deputy public defender, was an experienced criminal practitioner. She would have been well aware of the rules in Arcega and in Estelle v. Smith. We can only assume from this record that defense counsel made well informed tactical choices to use the contents of the many competency examinations to support the proffered defense.
Apparently recognizing that this court is compelled by the decision in Weaver to find forfeitures, defendant has raised alternative claims of ineffective trial counsel. These claims also fail to persuade us of the need for a reversal.
The decision in People v. Gurule (2002) 28 Cal.4th 557, 610-611, sets out the well-known constitutional standard for determining whether trial counsel has failed to provide adequate legal representation pursuant to the Sixth Amendment. "First, a defendant must show his or her counsels performance was `deficient because counsels `representation fell below an objective standard of reasonableness [¶] . . . under prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Weaver, supra, 26 Cal.4th at p. 925.) Second, he or she must then show prejudice flowing from counsels act or omission. (Strickland, supra, at pp. 691-692; People v. Weaver, supra, at p. 925.) We will find prejudice when a defendant demonstrates a `reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (In re Sixto (1989) 48 Cal.3d 1247, 1257, citing Strickland, supra, at p. 694.) `Finally, it must also be shown that the [act or] omission was not attributable to a tactical decision which a reasonably competent, experienced criminal defense attorney would make. (In re Sixto, supra, at p. 1257.)"
Also, "`"[if] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation," the claim on appeal must be rejected. [Citations.]" (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)
In the instant matter, defense counsel was never explicitly asked on the record to explain her particular trial strategy. However, it is apparent from our record that defense counsel made her decisions for valid tactical reasons. Dr. Rothberg was the one competency evaluator who had formed strong opinions about defendants guilt and insanity. We can only assume that when defense counsel discovered that the doctor had formed these very strong opinions about defendants mental state, she concluded that the best defense would be to use Dr. Rothberg to persuade the jury that defendant was guilty of involuntary manslaughter, or that defendant was insane when he committed the stabbing. Defense counsel probably also concluded that considering the content of Dr. Rothbergs opinion, the best trial strategy was to try the case wide open, ignoring the limitations of Arcegas rule of immunity and the evidentiary limitations set out in Estelle v. Smith.
Dr. Rothberg did not evaluate defendant personally until 2001, fairly late during the competency proceedings and well after the February 26, 1999, stabbing. Defense counsel and the doctor may well have concluded that it was therefore necessary to bolster the doctors opinion by the use of the information gathered about defendants mental state at a time closer to the commission of the offense. Thus, at trial, to establish a lack of intent and insanity, the doctor used the contents of the prior evaluators observations and the statements that defendant made to these evaluators to reach his conclusions. In extrapolating defendants mental state at the time of the offense, the doctors opinion was defensible only if he could use the observations made by the earlier evaluators of defendants mental condition. Moreover, it was important to Dr. Rothbergs conclusion of confabulation that each time defendant related the circumstances of the offense, he had told his story differently.
Given what defense counsel had to work with, we conclude that the decision to ignore the Arcegas rule of immunity and the evidentiary limitations in Estelle v. Smith was a rational tactical choice well within the objective standard of reasonableness under prevailing professional norms. We conclude that defendant has not established ineffective trial counsel. (People v. Mendoza Tello, supra, 15 Cal.4th at p. 266.)
With respect to the dual appointments of Dr. Rothberg, the record also fails to demonstrate inadequate representation by defense counsel. Defense counsel probably decided that it was too risky to use another evaluator to reach an opinion about sanity when Dr. Rothberg had such strong opinions about defendants lack of responsibility for the killing. This tactical choice was a rational one well within professional norms. Consequently, this theory also fails to persuade this court of the need for a reversal. (See People v. Weaver, supra, 26 Cal.4th at pp. 962-963.)
Defendant made a supplemental request that we consider the decision in In re Hernandez (2006) 143 Cal.App.4th 459 (Hernandez), which we granted. The facts underlying the decision in Hernandez are distinguishable. Hernandez arose from a petition for a writ of habeas corpus accompanied by trial counsels declaration stating that trial counsel failed to object to the use of the fruits of the competency evaluations during the guilt proceedings of the trial because he was unaware of the Arcega rule of immunity and the decision in Estelle v. Smith. (Hernandez, at pp. 469-470.) Counsel declared that being ignorant of the rule, he made no tactical decision with respect to excluding the competency evaluation evidence. (Id. at p. 470.) Further, the Hernandez court held that the failure to object was prejudicial because the competency evaluations uniformly suggested that the defendant was malingering. (Id. at pp. 473-477.) The facts in Hernandez are different from the instant facts, and the decision in Hernandez consequently fails to support defendants argument that the instant judgment should be reversed. (See also the discussion of the decision in People v. Weaver, supra, 26 Cal.4th 876 in Hernandez, supra, at pp. 472-477.)
DISPOSITION
The judgment is affirmed.
We concur:
BOREN, P. J.
ASHMANN-GERST, J.