Opinion
D070982
05-10-2018
THE PEOPLE, Plaintiff and Respondent, v. CLARE LYLE NEIGHBOUR, Defendant and Appellant.
Lizabeth Weiss, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Collette C. Cavalier and Arlene A. Sevidal, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD246479) APPEAL from a judgment of the Superior Court of San Diego County, Jeffrey F. Fraser, Judge. Affirmed. Lizabeth Weiss, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Collette C. Cavalier and Arlene A. Sevidal, Deputy Attorneys General for Plaintiff and Respondent.
An information charged defendant Clare Lyle Neighbour with attempted murder (Pen. Code, §§ 187, subd. (a) & 664, count 1); aggravated mayhem (§ 205, count 2); and attempted robbery (§§ 211 & 664, count 3). The information further alleged that in count 1, the attempted murder was "willful, deliberate and premediated" (§ 189); that in counts 1 and 2, defendant "personally inflicted great bodily injury" on the victim (§ 12022.7, subds. (a) & (b)); and that in counts 1, 2, and 3, defendant personally used a deadly weapon (§ 12022, subd. (b)(1)).
All further statutory references are to the Penal Code unless otherwise noted.
Before trial commenced, at the request of defense counsel the court conducted a multiday hearing to determine whether defendant was mentally competent to stand trial. As discussed in detail post, the court found defendant was competent and reinstated criminal proceedings against him. A jury subsequently found defendant guilty as charged and made true findings on the enhancements. The court sentenced defendant to a term of life with parole plus 10 years, to be served consecutively.
On appeal, defendant contends there is insufficient evidence in the record to support (1) the court's finding that he was mentally competent to stand trial; and (2) the jury's findings he acted with (a) deliberation and premeditation in connection with count 1, and (b) the intent to maim in connection with count 2. Defendant further contends that the court erred when it denied — over his objection — defense counsel's request to waive the attorney-client privilege during the competency hearing and testify on the issue of defendant's competency, and when it sentenced him to the upper term on count 3. As we explain, we reject each of these contentions and affirm defendant's judgment of conviction.
FACTUAL BACKGROUND
Silvia Rivera testified she and victim Carlos R. (Carlos) were together at about 2:30 a.m. on February 23, 2013, when Carlos stopped for gas at a station on Imperial Avenue. A video from multiple surveillance cameras located at the station was shown to the jury. Rivera identified defendant as the man seen in the video.
When Carlos pulled into the gas station and stopped at the pump, Rivera testified the man approached their car and asked for change. Carlos in response stated they had no change. Carlos next went to buy gas but realized he had forgotten his wallet. When Carlos returned to the car, the man again asked for change. Carlos repeated he had none.
As Carlos was paying for gas at a pay booth, the man again approached the car and stated to Rivera, "Bitch, give me a dollar. I'm going to hit you." Rivera testified the man was then holding a crowbar. Because Rivera felt "intimidated" and "scared" by the man, she briefly opened the car door and yelled out to Carlos to come back to the car.
As Carlos was returning to his car, the man struck Carlos with the crowbar. The record shows defendant struck Carlos about 25 times on or near the head with the crowbar. Rivera testified she was unable to warn Carlos about the man holding the crowbar because everything "happen[ed] too fast." Immediately before the attack, Rivera neither heard Carlos nor the man say anything to each other. The surveillance video showed the man fleeing the scene in a white truck.
San Diego Police Officer Manual Dominguez was on patrol on the night of the incident. Once at the gas station, Officer Dominguez saw a man lying motionless on the ground near the bumper of a car. Officer Dominguez testified he initially thought the man, later identified as Carlos, was deceased. Officer Dominguez observed blood "gushing" out of several "gashes" about seven to eight inches in length on the man's head. Because the man's head was actually "broken open" exposing brain matter, Officer Dominguez could only encourage him to breathe and hold on for medical personnel to arrive. Officer Dominguez took a number of photographs of the man and the crime scene, some of which were shown to the jury.
Officer Dominguez testified that he did not observe any weapons either at the crime scene, including near the man's car, or on the man. However, he further testified that he was not looking for weapons, including a gun, at that time.
On arrival at the hospital, Carlos was only breathing intermittently and was comatose. Carlos sustained a temporal bone fracture, his brain was bleeding, and his ear was partially torn away from his head. Carlos was hospitalized for over two weeks. As a result of the attack, Carlos suffers from seizures; headaches, including migraines; severe memory loss; and posttraumatic epilepsy. Carlos also has encephalomalacia, a condition which a neurologist described as "basically a hole in the brain where those cells have died."
Kerry Magee testified that he had known defendant for about 20 years; that he first met defendant at a local Alcoholics Anonymous club in Pacific Beach (club); and that they became friends. Magee stated that defendant left San Diego sometime in about 2000, and returned in 2013, shortly before the incident. Magee then was living out of his van, which he parked adjacent to a nursey where he worked, about a block from the club.
Magee recalled he was sleeping on the night of the incident when he heard "banging" on his van sometime after 3:00 a.m. Believing it was the police doing a spot check, he opened the passenger door only to find defendant standing about three feet away. Defendant told Magee more than once that he needed gas money because he wanted to leave town. According to Magee, defendant appeared desperate.
Half asleep, Magee asked defendant, "What the heck is the matter with you?" Magee testified that defendant responded, "I just beat a guy up with a crowbar. Killed a guy with a crowbar." When Magee said, "You did what?" defendant again responded, "I just killed a guy at a gas station." Magee testified he told defendant, "Get the 'F' out of here," as Magee believed defendant was "just off on a tangent of his." Magee also told defendant he would see him at the club in the morning. Before leaving, defendant responded, "I got kicked out of there."
Magee testified he went to the club early the next morning, per his routine. Others at the club were watching the morning news. As Magee began to recount the story from the night before, another club member stated he had just seen a news report about a guy being assaulted at a gas station.
Concerned, Magee left the club and walked back to his van. As he approached the van, he saw the passenger door open and defendant inside, wearing only his underwear. Magee testified he asked defendant, "What the 'F' do you think you're doing?" to which defendant responded, "I need a change of clothes. I need to get out of town. I need to go." Magee further testified defendant exited the van holding Magee's jacket. When Magee protested, defendant gave his own jacket to Magee, which was "crumpled up in a ball." Magee instantly threw defendant's jacket in the trash.
Magee testified he went back to the club around lunchtime that same day. While at the club, he saw a news report about an attack at a gas station. The news clip showed a portion of a surveillance video that included a white truck, which Magee recognized belonged to defendant. Magee called 911.
Juan Benavidez testified that he worked as a volunteer custodian and security guard at the club at the time of the incident; that around 5:00 p.m. the day before the incident, defendant "came looking" for Benavidez because Benavidez had "kicked" defendant out of the club every day for about a week until finally telling defendant he was permanently banned from the club; that defendant was rude, spat in Benavidez's face, and demanded he be shown respect; and that defendant stated he was "going to kill [Benavidez's] ass with a crowbar." Benavidez in response "jumped the counter" and confronted defendant, saying, "If you're going to fuckin' kill me, let's get fuckin' busy, bitch."
Benavidez further testified he also had had a confrontation with defendant earlier that same day. According to Benavidez, defendant was then having a problem with another club member. Defendant also had been unwilling to follow club rules; according to Benavidez, defendant was "in everyone's face, looking for money, panhandling," and was unwilling to "honor . . . simple requests of kindness" expected of club members. When told to leave by Benavidez, defendant responded he was going to kill Benavidez. After defendant left the club, Benavidez through a window watched defendant go to the back of defendant's truck and pull out a "bar" of some sort. After a while, Benavidez saw defendant put the bar back inside his truck and drive away. The next morning, Benavidez saw a news clip about an assault that included a "man's face." Benavidez recognized the man as defendant.
Defendant testified in his defense. He stated that he had brain surgery in June 2012 to remove a tumor, which required a seven-day hospital stay; that as a result of the surgery, he was prescribed anti-seizure medicine; and that he moved from Spokane, Washington to San Diego in about February 2013 to "start a new life."
On the day before the incident, defendant testified he took his anti-seizure medicine in the morning and also at about 8:00 p.m., as was his routine. He further testified when he took the medicine, it "regular[ly]" made him become "violent," "angry," and "paranoid." It also made him "sleep heavily" and feel "abnormal." Defendant testified that he was near the gas station where the incident occurred because he used to work in the area; that he was looking for a friend nick-named "Bubba" because defendant was in pain and wanted to buy some "crack"; that he purchased some crack at about 11:00 p.m. on the night of the incident and mixed it with beer to "kill[]" the pain; and that after falling asleep and waking up, he realized he was nearly out of gas and thus went to the station for gas.
Defendant testified he needed gas because he wanted to "get the hell out of there" because he "could see the old behavior kick — you know, and it was time. . . . Addiction is not — it's — it's not a pretty thing. You don't feel good anymore." Defendant attempted to buy gas with some change but the gas station attendant would not take it. Defendant then saw a car pull into the gas station. The car was driven by Carlos, the victim.
Defendant testified he approached the victim and said, " 'Excuse me, sir. They won't let me get any gas. Can I' — 'can I get a dollar?' " According to defendant, the victim in response stated, "For your life. For your life, old man." The victim then walked away, only to return to the gas pump. Defendant testified he again asked the victim for money, saying, "Please can you let me hold a dollar, young man? They won't let me get gas. I just want to get out of here. Can you let me hold a dollar?" In response, the victim told defendant, "I got dollars. I can let you hold a dollar for your fuckin' life, old man. We hold dollars. I hold — we hold weapons, guys like us."
Defendant then clarified the victim said, "We gangsters — we hold — we hold dollars. We also hold weapons, old man." Defendant described the victim as "real cocky" and "punkish," and testified as the victim was making these statements, the victim was moving his right hand near his pocket, as if the victim was reaching for something.
Defendant testified he felt a "little bit" scared, "confused, a little agitated, and disappointed" by the victim's statements. Defendant next pleaded with the man to give him a dollar. According to defendant, the man again said, "For your fucking life, old man." Defendant testified he believed these statements by the victim were threats to kill him, which caused defendant to fear for his life. Defendant next heard the man tell the passenger to "pop the trunk." This statement made defendant "extremely frightened" and "paranoid" because the victim "gave [defendant] the impression he may have a gun." As a result, defendant went to his truck and grabbed a crowbar because he wanted to be prepared if there was any confrontation with the victim.
After grabbing the crowbar, defendant testified he told the woman, "Don't you dare. Don't you dare. Don't you dare," as he observed her continually turning to look at the victim who was paying for the gas. Defendant testified he made these statements to warn the woman not to "pop[] the trunk" because he was scared the victim might retrieve a weapon. Defendant denied making any threats to the woman or asking her for money, as she had testified.
Because he was frightened, defendant decided to leave the gas station. As he started walking to his truck, the victim approached and said, "Old man, you remember what I said; right? For your fucking life." Defendant testified the victim appeared amused by the confrontation.
Feeling "extreme fear" for his life based on what he considered were three or four "death threats," and believing the victim was reaching for something in his pocket as he walked back toward the gas pump, defendant then decided he needed to "defend [himself]" using the crowbar, describing the confrontation as a "battle." Defendant recalled only hitting the victim once or twice on the head with the crowbar. Defendant testified it was "all instinctive . . . primal instinct"; it was "[f]ight or flight self-defense is all it was after four death threats." Defendant then left the gas station and drove down the street to another gas station.
Defendant testified he left San Diego and went to Huntington Beach to meet with his "sponsor." On the way, defendant stopped at a dumpster in order to "clean[]" his "truck a little bit." Defendant admitted he threw away the crowbar as he drove to Huntington Beach. Defendant was arrested in Huntington Beach a few days after the incident.
Defendant on cross-examination denied ever threatening Benavidez at the club. Defendant admitted he took Magee's jacket because his own jacket had blood on it. He also admitted that he never saw the victim actually holding a gun.
The record shows near the end of defendant's cross-examination, at the request of the defense, the judge and the attorneys briefly went into chambers for a sidebar conference while the jury remained empaneled. Defendant then told the jury that his situation was "political"; that it felt "good" to be able to "tell the truth finally after three years [of] watching this video"; and thanked the jury for listening. Once the judge and attorneys returned, the court took a five-minute recess, and, with the jury excused, informed the attorneys what defendant had said outside the court's presence. The record shows defendant repeatedly apologized for making these statements, to which the court responded, "Mr. Neighbour, you're fine."
DISCUSSION
I
Competency
Defendant contends the court's finding he was mentally competent to stand trial is not supported by sufficient evidence in the record. We disagree.
A. Procedural Background
A few days before the commencement of defendant's preliminary hearing, at the request of defense counsel the court suspended criminal proceedings pursuant to section 1368, ordered defendant to undergo a competency exam, and set a competency hearing.
Section 1368 provides in relevant part: "(a) If, during the pendency of an action and prior to judgment, . . . a doubt arises in the mind of the judge as to the mental competence of the defendant, he or she shall state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent. . . . [¶] (b) If counsel informs the court that he or she believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendant's mental competence is to be determined in a hearing which is held pursuant to Sections 1368.1 and 1369. . . . [¶] (c) Except as provided in Section 1368.1, when an order for a hearing into the present mental competence of the defendant has been issued, all proceedings in the criminal prosecution shall be suspended until the question of the present mental competence of the defendant has been determined."
David Naimark, M.D. personally interviewed defendant and reviewed records provided by the district attorney's office and the jail where defendant was being housed. In his May 14, 2013 report, Dr. Naimark concluded that defendant was suffering "from an abnormal mental state," as evidenced by defendant's then "pressured speech, disorganized thinking, persecutory and somatic delusions"; and that this condition made it "difficult to educate [defendant] around legal issues of which he is not familiar." Dr. Naimark opined defendant then was "presently incompetent to stand trial" and recommended defendant be sent to Patton State Hospital (PSH) for further evaluation and treatment. The court in late May 2013 adopted these findings and ordered defendant committed to PSH for no more than three years.
In early September 2013, the court reinstated criminal proceedings against defendant after the medical director of PSH certified in accordance with section 1372 that it was the "consensus" of the clinical staff of PSH that defendant was mentally competent. The PSH staff reached this conclusion based on their findings that defendant was able to understand the nature of the criminal proceedings and to assist counsel in a rational manner in the preparation of his defense.
Subdivision (a) of section 1372 provides in relevant part, "(1) If the medical director of a state hospital or other facility to which the defendant is committed, . . . determines that the defendant has regained mental competence, the director shall immediately certify that fact to the court by filing a certificate of restoration with the court by certified mail, return receipt requested."
In March 2014 during a Marsden hearing, again at the request of defense counsel the court ordered a competency evaluation for defendant. Dr. Naimark again interviewed, and conducted a mental status examination of, defendant, and observed defendant and defense counsel "interacting" in court in early April 2014. Dr. Naimark concluded defendant then was incompetent and as before, recommended he be committed to PSH for evaluation and treatment. The court in mid-April 2014 adopted Dr. Naimark's report, found defendant was then not mentally competent, and ordered him returned to PSH.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
In a July 30, 2014 report, the medical director and clinical staff of PSH certified defendant was mentally competent. The court in response set a competency hearing for defendant. The court also ordered that defendant undergo a third section 1368 evaluation prior to that hearing. Dr. Naimark again conducted the evaluation, which included a personal interview with defendant that took place in early November 2014.
Dr. Naimark's November 11, 2014 report found that defendant had "improved regarding his mental state possibly as a consequence of being stabilized on a mood stabilizing medication"; that during the interview, defendant remained behaviorally and emotionally "in control, this is despite voicing anger about the evaluator's change in opinion at the last Court hearing"; that defendant was "able to understand the nature of the criminal proceedings," including the charges against him, the role of the court, and the "pleas that he could enter"; and that defendant was "capable of assisting his attorney in a rational manner if he so chooses." As such, Dr. Naimark recommended that legal proceedings continue.
Defendant's competency hearing commenced in June 2015. As discussed post, during the competency hearing, defense counsel sought to introduce not only her own testimony but the testimony of defendant's former defense counsel, Manual Avitia, to support her contention defendant was mentally incompetent.
The record shows the court questioned defendant on this issue, including whether he was willing to waive the attorney-client privilege. The record further shows defendant unambiguously invoked the attorney-client privilege and objected to his then-current, or former, defense counsel testifying at his competency hearing. After extensive argument, the court rejected what it found to be an "extraordinary" request by defense counsel to introduce her testimony and former counsel's testimony over defendant's objection. As discussed post, the court ultimately found defendant was mentally competent.
B. Hearing
1. Defense Evidence
Gary Reyes testified that he was employed at PSH as a nurse; that he performed the "admission nursing assessment" on defendant on July 17, 2014, which took about an hour; that defendant denied having any mental illness but instead claimed he was suffering from depression; that defendant blamed defense counsel for making defendant appear incompetent; and that defendant lacked "insight into his mental illness" and showed signs of disorganized thought processes.
On cross-examination, Reyes admitted his role in assessing defendant was not to determine competency. Reyes testified that defendant presented with "fair grooming and adequate hygiene"; that defendant was "oriented to time, place and person"; that he was "cooperative with admission staff" and interacted appropriately with staff and his peers; that he was "calm" during the lengthy admissions process; that he spoke normally and intelligently during the interview process; and that one of defendant's "strengths" was his ability to calm himself down when he became irritated or stressed, including asking for "quiet time."
Jinae Su, M.D. testified she conducted a brief psychiatric evaluation of defendant on July 18, 2013, when he was first admitted to PSH. She further testified that interviews with patients typically averaged about 30 minutes; that her job during this short intake assessment was to "triage" a patient to determine whether he or she is taking the right medications and/or is a safety risk to himself or herself or to his or her peers; that her evaluation included not only a personal interview with defendant, but also a review of his jail medical records; that defendant admitted to suffering from depression, anxiety, and PTSD; and that defendant stated his PTSD was caused by "life," noting "social is everything."
Dr. Su testified she also interviewed defendant about a year later when he was readmitted to PSH. During this second intake interview, Dr. Su recalled defendant claimed he had suffered from the stomach flu for two days, was not feeling well, and wanted to rest; that he was loud, irritable, and repeatedly belched during the interview; that he blamed defense counsel for the psychiatrist's report finding him incompetent; that he talked about being under surveillance but did not elaborate; and that he claimed one of the jail psychiatrists was his friend from many years ago. Defendant also reported having brain surgery to remove a meningioma behind his eye several months before the incident.
Dr. Su found defendant "endorsed paranoid ideations and delusions related to case and courtroom personnel and he appeared grandiose," as defendant believed his was a "federal case." Dr. Su determined that defendant should be evaluated for bipolar disorder in a comprehensive psychiatric assessment.
During cross-examination, Dr. Su testified that she did not perform the comprehensive assessment of defendant; that her role in assessing defendant was not to make a competency determination; and that competency instead was determined by an "entire treatment team" that collaborated on defendant's unit.
With respect to the July 2013 assessment of defendant, Dr. Su noted defendant then reported that two anti-seizure medications prescribed as a result of his brain surgery had made him "very angry" and that was the reason he had attacked the victim in this case. Also during this assessment, defendant reported that he had never been "in this situation in [his] life," that he was "really anxious" about the criminal charges, and that his "attorney [wouldn't] talk to [him]." Dr. Su noted that defendant then was cooperative, made good eye contact, was engaged in the interview, appeared alert, and was oriented to person, place, and time.
Vickie Perkins, a nurse from PSH, testified that she observed defendant in July 2014 while he was a patient; that on certain occasions during his hospitalization, she saw and heard defendant "screaming and cursing" and being inappropriate with other PSH patients, including on one day in particular in which defendant was sedated because he had been extremely disruptive; that she had documented these behaviors in defendant's chart and, as part of the treatment team at PSH, had shared them with his doctors; and that in her opinion, defendant was delusional and "out of touch with reality," an opinion she also had documented in his chart.
On cross-examination, Perkins testified there were several notations in defendant's chart showing that during his 2013 hospitalization at PSH, defendant was "calm and cooperative" and "no behavioral problems [were] observed"; that he was "adjusting to unit routine"; and that he was eating and sleeping well. Perkins also testified that for a week period during defendant's July 2014 hospitalization, she summarized defendant's behavior as being "pleasant and cooperative," his thought processes as being "coherent" and "logical," and his mood as "normal." Perkins confirmed her view that defendant could, if "he wanted to," cooperate and behave.
Raymond Murphy, Ph.D., testified that defendant's former attorney (i.e., Avitia) in March 2014 asked that defendant be evaluated for competency. Before meeting defendant, Dr. Murphy reviewed the police reports related to defendant's case, the May 2013 report prepared by Dr. Naimark and the August 2013 report from PSH, and records from county mental health dating back to 1994. Dr. Murphy estimated he spent about two hours meeting with defendant.
Dr. Murphy testified that defendant appeared "somewhat disheveled," was "somewhat angry and suspicious, loud, [and] emotional" during the interview; that defendant indicated during the interview that he did not trust defense counsel and wanted a "new one"; and that after making this statement, defendant began praying. Dr. Murphy stated he was unable to administer a series of tests used to screen for competency because defendant "basically[] managed the session," talked "continually," and was "concerned about his issues, not about [Dr. Murphy] conducting an examination."
When asked if defendant was willfully refusing to cooperate or was not cooperating because of some underlying mental condition, Dr. Murphy opined that defendant was "motivated by his delusional systems, his suspiciousness of his attorney and the system, the court, the federal government." According to Dr. Murphy, at one point during the interview defendant claimed the federal government was selling psychotropic drugs to convicts. Dr. Murphy concluded this view was "deluded and grandiose."
Based on the interview, Dr. Murphy opined that defendant "had a delusional disorder, fixed, with paranoid and grandiose themes." Dr. Murphy further opined that in March 2014, defendant was not competent to stand trial because his delusions were "not going to change."
Dr. Murphy testified he also evaluated defendant in June 2015 at the request of his newly appointed defense counsel. During this second evaluation that lasted about an hour, Dr. Murphy found defendant to be "much more organized" and "linear" in his thoughts, but he continued to maintain "grandiose themes and paranoid and delusional thinking."
Dr. Murphy testified that defendant immediately recognized him and recalled his name when the second interview began; that defendant "very much" wanted to be found competent; and that defendant claimed he knew Dr. Murphy because in the past they both allegedly had attended the same "AA meetings." During this second interview, defendant claimed his defense counsel was plotting against him with the district attorney. Dr. Murphy opined that defendant was unable to rationally assist his attorney and thus, was mentally incompetent.
On cross-examination, Dr. Murphy testified that during both interviews, defendant maintained he was competent while defense counsel maintained he was incompetent; that this difference in opinion "absolutely" created an adversarial relationship between defendant and defense counsel; and that this "conflict" could in part explain why defendant was "suspicious of [Dr. Murphy's] motives, . . . being maybe even paranoid."
Dr. Murphy noted that, during the March 2014 interview, defendant discussed the pending criminal case, repeatedly stating he had acted in self-defense after the victim allegedly had threatened him. Dr. Murphy admitted he attributed the threat statement by defendant as evidence of defendant's delusions. When asked how he knew the victim did not actually make such threats to defendant, Dr. Murphy stated, "I don't know that definitely, no." The prosecutor confirmed that Dr. Murphy also had not watched the surveillance video before opining these statements by defendant were part of his delusions.
Dr. Murphy also admitted that, when he interviewed defendant a second time about 16 months later, defendant again insisted that he had acted in self-defense. Dr. Murphy determined the statements by defendant were part of defendant's "fixed delusional system." Other than this limited inquiry, Dr. Murphy testified he did not question defendant regarding the criminal case during either interview, despite the fact Dr. Murphy was hired by the defense to determine if defendant could assist his attorney "in a rational manner." Dr. Murphy then reiterated that defendant would cooperate with his counsel if "his counsel works with him within the delusional system."
Defendant also testified at his competency hearing. The record shows defendant repeatedly refused to answer defense counsel's questions, stating, "I don't want to talk to you." After being gently admonished by the court, defendant testified that he was competent; that he did not consider his courtroom behavior during the competency hearing to be inappropriate, because the judge "never asked [him] to be removed from the courtroom"; and that his statements were otherwise "tolerable" and "harmless" and were made because of "desperation out of [a] lack of defense."
In our independent review of the record, we note the trial court at all times during the competency hearing showed great restraint in dealing with and addressing defendant's constant interruptions during the proceeding. We applaud the court for its patience and courtroom management.
Defense counsel next questioned defendant about his constant interruption of the witnesses and overall courtroom behavior during the lengthy competency hearing. Defendant responded, "I have nobody to defend me. And you want to sit here and banter back and forth like some teenage debating squad. You go right ahead." Defendant accused defense counsel of "personal[ly attack[ing]" him by asking myriad "silly questions" that were designed "solely . . . to provoke an emotional outburst" from him, in what he claimed was an attempt to show he was in fact allegedly incompetent.
When defendant claimed he did not have a booking number and was unable to use the telephone for months after being incarcerated, defense counsel asked if this also had "something to do with the conspiracy." Defendant responded, "No. I don't know. What conspiracy. What are you talking about?" Later during his testimony, defendant stated that the victim allegedly threatened to kill him four times, after defendant asked to borrow $1 for gas. Defendant then recalled the car being driven by the victim was different than the car seen in the edited surveillance video. Defendant also believed the victim looked different and offered his opinion that the events on the video "almost seemed staged."
After being shown the surveillance video, defendant testified regarding the events leading up to the incident. Defendant stated the victim told his passenger to "pop the trunk"; that the victim went to the trunk and waited there, which made defendant "scared out of [his] mind"; that it appeared the victim had something in his hand, such as a "gun"; and that, because the victim allegedly had made four threatening comments, defendant "initially" hit the victim out of self-defense then "lost [his] mind," which he blamed on the medication and his brain surgery. Defendant at that point felt as though he was "out of [his] body," as if he was "looking through a camera or a film projector" while he was hitting the victim in the head with the crowbar.
During his testimony, defendant accused the court of previously commenting about a defense of entrapment, and then refusing to acknowledge making such a comment. Defendant testified he had been under investigation in 2003 in Seattle for trafficking a "kilo of cocaine" when he decided to move to San Diego; that in response, he made a "threat" after "9-11," which "[t]hey took . . . seriously"; that he started using cocaine again; that he was then taking care of his parents; and that he was under "an extreme amount of stress." Defendant also testified he was innocent of the charges, noting, "Who goes to the God damn gas station to get gas, to rob somebody with a crowbar? Who does that?"
The record shows defendant and defense counsel continued to argue back and forth, with defendant calling his counsel a "damn whore" and "pathetic" among several other disparaging names. Defense counsel then attempted to establish that defendant had gone to county mental health on a series of occasions, starting in 1994; and thus, that his medical records showed defendant actually started having hallucinations and suffering from paranoia and delusions many years before the incident. Defendant, however, insisted he only went to county mental health for treatment for depression and for his long-standing drug addiction.
On cross-examination, defendant refused to answer questions about the information he had provided to defense counsel, including by letter, stating that such information was "privileged" and that the prosecutor — whom defendant referred to by first name (as he did consistently throughout the proceeding) — was the "enemy . . . with all due respect." Defendant testified that his defense counsel at all times had pursued irrelevant "areas" and "directions" of his defense without explaining why they were doing so. Defendant admitted, however, that if defense counsel pursued defenses that he (i.e., defendant) agreed with, he would be "willing to share information about that defense." He also admitted that even if he did not agree with a possible defense raised by defense counsel, he would at least be willing to "explore" that defense and possibly provide his counsel with information.
With regard to his relationship with defense counsel, defendant stated, "[S]he's lied. She's tried to embarrass me, and she's tried to provoke me. She's picked up the same baton that [former counsel Manual] Avitia presented in our meetings together. She's picked — and it's too heavy for her. And it's not working out to this extent."
2. Prosecution Evidence
Leigh Lindsey, M.D. testified that she first met defendant in August 2013 when he was assigned to her unit at PSH. Dr. Lindsey described the process at PSH to determine competency, which includes multiple interviews with a patient; a thorough review of a patient's "legal papers," the "admissions psychiatrist's notes," and the myriad reports from the treatment team including from the "rehab therapist, social worker, the psychologist" and nursing staff; and multiple meetings of the various teams or "disciplines" regarding the patient.
Dr. Lindsey testified she met with defendant about 20 times during his first admission to PSH because he had a "complicated history" and gave "different versions" of it, and because he ostensibly had a number of physical and psychiatric complaints. Dr. Lindsey estimated she spent about 20 hours with defendant during these multiple interviews, as each tended to last about an hour.
Based on these interviews and with extensive input from her team, Dr. Lindsey prepared a "Comprehensive Psychiatric Assessment" of defendant. She testified that assessment included a mental status examination which included an attitude and cooperation subsection. Dr. Lindsey noted in her assessment that defendant was "very pleasant," "cooperative," and "engaging" during his interviews; that her team felt "sympathetic" to defendant, as he was in a tough spot, like so many patients at PSH who are facing serious criminal charges; and that defendant wanted to stay at PSH rather than go back to jail, which "terrified" him.
Dr. Lindsey testified that she and her team became suspicious defendant was malingering because he was "fishing" for different diagnoses; that as time went on at PSH, defendant "basically just gave [these various diagnoses] up"; that defendant admitted to her he was not psychotic, but had instead "been saying those things to come into [PSH], that he was scared in the jail and that . . . he was remembering when he was using methamphetamine"; that defendant was an "intelligent man" and initially talked about "paranoid ideation" based on the "sovereign citizens movement," which Dr. Lindsey noted was a favorite topic of malingers because there is a lot of information about this movement being passed "back and forth" in the jails; and that an individual who is malingering will tend to "jump[] around" to different topics because "they're grasping at straws, so to speak, with diagnoses," as opposed to persons who are paranoid and delusional who tend to talk about "one thing, and that is their thing." Dr. Lindsey thus noted defendant initially blamed his situation on "seizure medicines"; then later tried to blame it on PTSD; then on depression, despite the fact he was eating and sleeping normally; and finally, on "cognitive" difficulties.
Dr. Lindsey confirmed that while at PSH, defendant engaged in a discussion of "possible defenses" in his case; that he raised "a lot of different defenses," which Dr. Lindsey noted was a "good" sign because defendant needed "to start thinking about how [he was] going to work with [his] attorney"; that they talked about several possible defenses including self-defense; and that in discussions with defendant, Dr. Lindsey found he had "a lot of experience with the criminal justice system and gave very sophisticated answers," despite "having a 38-year history of substance abuse," including a "strong history of meth and cocaine" use over the last eight to 10 years.
The record shows defendant interrupted this testimony, as he was prone to do throughout the multiday competency hearing, and stated he had been abusing crack cocaine and not methamphetamine.
With regard to Dr. Naimark's report, Dr. Lindsey testified that during his interview with Dr. Naimark, defendant was remembering "what it's like" when taking these type of drugs, which "make people psychotic while they're high"; that while at PSH, defendant's statements he was having paranoid symptoms did not "match the behavior," as defendant was "relaxed" and "comfortable"; and that he ultimately admitted he was not having such symptoms as he attempted to "cook up another diagnosis."
Dr. Lindsey described defendant's behavior as typical of a malinger. As such, she stopped prescribing defendant antipsychotic medicine during his stay at PSH. Dr. Lindsey found defendant was "fully capable of reasoning about his case," which he demonstrated to her and her team "almost every time [they] talked to him." In fact, Dr. Lindsey noted defendant obtained a perfect score on his "[m]ini-[m]ental [s]tate" test, which she noted was "rare in [their] system."
Dr. Lindsey certified that defendant was mentally competent pursuant to section 1372. (See fn. 3, ante.) In making that determination, Dr. Lindsey testified that defendant "absolutely" could assist his attorney in his defense in a rational manner; that she and her team made defendant aware of the evidence against him, including photographic evidence of the victim; that he "demonstrated that to us [at PSH] every day, all the team," he could assist his attorney in a rational manner; and that defendant was in fact a "very intelligent, intact guy with a severe substance abuse problem."
On cross-examination, Dr. Lindsey admitted that she had never observed defendant interacting with his attorney, but noted there was a difference between "ability and volition." Dr. Lindsey testified she was unaware that defendant had received treatment at county mental health starting in 1994, as defendant had told her he had no prior mental health history. After a recess in the proceedings in which Dr. Lindsey reviewed the records from county mental health, Dr. Lindsey testified the symptoms defendant was experiencing in 1994 were consistent with someone who is a drug addict, and that defendant had "severe substance abuse."
The record shows defense counsel questioned Dr. Lindsey extensively on a variety of subject matters regarding defendant, but that Dr. Lindsey confirmed her view that defendant was mentally competent. These subject matters included among others whether PSH was over-crowded when defendant was admitted and evaluated; whether defendant had been married and divorced twice, as he claimed; and whether Dr. Lindsey sought to determine if there were any other medical records for defendant to show defendant was being untruthful about past diagnoses or his taking of psychiatric medications.
Sean Brannon, Ph.D., testified at the competency hearing. Dr. Brannon worked at PSH as an admissions psychologist. He testified that his primary duty at PSH was to help new patients "settle . . . in and perform diagnostics to find out what's going on with them so we can assist them and restore them to competency"; that he thus evaluates patients "every day" for competency; and that to do so, he looks at a person's "cognitive" and "intellectual" skills to ensure a person has some factual knowledge of the court system, the charges and evidence against, and the pleas that may be available to, him or her. Dr. Brannon also evaluates whether a person is capable of cooperating with another person, including an attorney, and if there is conflict, helping the person to resolve it.
Dr. Brannon testified he had "two official interviews" with defendant during his stay at PSH in 2013. Dr. Brannon noted that he also interacted with defendant in "court competency groups" taught by Dr. Bannon. In these groups, the patients, including defendant, engaged in role-playing in a simulated courtroom, similar to a moot court.
Dr. Brannon testified that he interviewed defendant a few days after defendant's arrival at PSH and that by design, the interview lasted only about 45 minutes and did not include any testing. During a second extended interview, Dr. Brannon conducted memory testing on defendant after he complained of memory deficit and in light of his recent brain surgery. Dr. Brannon found defendant read at beyond a 12th grade level.
Dr. Brannon also gave defendant a multipart test designed to examine "different areas of cognitive functioning"; that defendant performed within the "normal to low-normal" range; and that in "speed of processing," defendant was low. Dr. Brannon stressed that this result did not affect defendant's competency; that it could have been from defendant's years of drug abuse and alcoholism; and that it "just means that [defendant's] cognitive processing is slightly slower than other men his age."
Based on his two examinations and his observations of defendant, including during the court groups, Dr. Brannon opined that defendant was mentally competent. Regarding defendant's symptoms, Dr. Brannon concluded the "main reason why [defendant] exhibits many of the symptoms that he does is because of his lifelong battle with stimulants and alcohol and that this has affected his brain to the point where he does have symptoms which appear to be depression or he has symptoms — all of these things can be related — and intermittent psychosis, and so on and so forth. But we can't diagnose those things in the presence of drug addiction. They have to be sober — a person has to be sober for a period of time before you can actually begin to diagnose those things separately."
Dr. Brannon also opined that defendant could cooperate — including with his attorney — if defendant wanted to, as demonstrated by defendant's attitude and ability to cooperate during his 2013 stay at PSH. Dr. Brannon noted that on questioning, defendant understood what he was being accused of, knew the crime was serious, and that he could be sentenced to prison for life.
The record shows the prosecutor asked Dr. Brannon about defendant's behaviors during the competency hearing, which, as noted ante, involved multiple outbursts by defendant during the proceeding, particularly when defense counsel was questioning the witnesses including defendant. Dr. Brannon stated, "I've noticed that all his [i.e., defendant's] responses are relevant. They're not bizarre in any way."
When asked for further explanation, Dr. Brannon testified, "Well, he's not talking about conspiracies with the Illuminati[] or spacemen or anything like that. He was almost coming to tears talking to the judge about this is — this is why he needs to plea a certain way and he's sorry that it happened, and so on and so forth. And so the things that he's saying are relevant to the courtroom. So that means he's tracking what we're saying and what's going on. He's not just off in his own world. He's a very intelligent man, and he's alert and oriented to what's going on."
The record shows at a recess, the court noted the "Illuminati is an actual group found[ed] by Galileo," to which the prosecutor added, "[a]nd [is] discussed . . . in several books." Defendant then added, "Later on it became the Masons. It became the Masons," to which the court stated, "Yes. That's true."
As was the case with Dr. Lindsey, the record shows defendant's own counsel extensively cross-examined Dr. Brannon seeking to establish that defendant was in fact incompetent. In addition to some of the subject matters covered during the cross-examination of Dr. Lindsey, including whether PSH allegedly was over-crowded when defendant was admitted and evaluated, Dr. Brannon was asked whether defendant was forthright and honest during cognitive testing; whether Dr. Brannon asked defendant what other cities defendant had lived in prior to the incident, which information defense counsel maintained could have been used by PSH to search for additional medical records of defendant; and whether Dr. Brannon should have spoken to Dr. Naimark, defendant's previous defense counsel, and/or others about defendant.
Sofia Firoz, M.D. testified that she conducted the initial assessment of defendant in July 2014 after he was readmitted to PSH; that defendant's main complaints then were depression and anger management; that anger had been a problem for defendant for many years; that defendant expressed the desire to stay at PSH rather than return to jail; and that defendant was not interested in being interviewed by her. Because of defendant's lack of cooperation, Dr. Firoz involved the "forensic department" to determine whether defendant was in fact competent. According to Dr. Firoz, testing was done on defendant and he was found to be mentally competent, leading to his discharge from PSH.
With respect to whether defendant could meaningfully cooperate with defense counsel, Dr. Firoz opined defendant had the capacity to do so if he wanted to. She further testified defendant was making a "choice" whether to cooperate with his attorney.
The record shows defense counsel subjected Dr. Firoz to extensive cross-examination on some of the same subject matters as Drs. Lindsey and Brannon.
After extensive oral argument, including by defendant through his myriad interruptions, the court ruled defendant was mentally competent. Relying on CALCRIM No. 3451, the court cogently noted the issue before it was not whether defendant was guilty or not guilty or acted in self-defense or was insane or sane at the time of the incident, but rather "whether or not the defendant is unable, which mean he's incompetent, or unwilling, which means he's competent." The court summarized the witnesses' testimony and took into consideration defendant's "nontestimonial behavior during the proceedings." It found Dr. Lindsey's testimony "very credible," given that she spent about 20 hours with defendant when she and the PSH team determined defendant was mentally competent in 2013, and again in 2014, as they found defendant to be "logical, goal oriented, rational, capable of reasoning," although he exhibited "antisocial behavior" related to "substance abuse."
CALCRIM No. 3451, entitled "Present Mental Competence of Defendant," provides in relevant part: "You must decide whether the defendant is mentally competent to stand trial. That is the only purpose of this proceeding. Do not consider whether the defendant is guilty or not guilty of any crime or whether (he/she) was sane or insane at the time that any alleged crime was committed. [¶] The defendant is mentally competent to stand trial if (he/she) can do all of the following: [¶] 1. Understand the nature and purpose of the criminal proceedings against (him/her); [¶] 2. Assist, in a rational manner, (his/her) attorney in presenting (his/her) defense; [¶] AND [¶] 3. Understand (his/her) own status and condition in the criminal proceedings. [¶] The law presumes that a defendant is mentally competent. In order to overcome this presumption, (the defendant/the People) must prove/it must be proved) that it is more likely than not that the defendant is now mentally incompetent because of a (mental disorder/developmental disability)."
The court also focused on Dr. Naimark's testimony. It noted that Dr. Naimark had an opportunity to observe defendant over about a two-year period; that Dr. Naimark appeared "torn" by this case, as he had found defendant incompetent on two occasions but had noted after his most recent examination it was "more likely than not" that defendant was competent; and that, if he "chose," defendant "could help his attorney if he thought it was in his best interest to cooperate with his attorney."
In finding defendant competent to stand trial, the court ruled as follows:
"There's no question that the defendant is very angry at his attorneys primarily because he doesn't believe he should have been locked up for the last two and half years. His defense — and it could be called a rational one — is one of insanity at the time relating to brain surgery and medicine that he took for that. [¶] He's made it quite clear that he refuses — and I emphasize — refuses to cooperate with current counsel or the public defender's office in particular. There's no question that he has some emotional issues. [¶] . . . [¶] The bottom line is this. We had three psychiatrists that have come in and found him competent. We've had one Ph.D. that has found him to be competent. One that's found him to be not competent. And we've had a psychiatric nurse who believes he is not competent. [¶] . . . [¶] . . . There's no question that he has been inappropriate at times during these proceedings. He's been, quite frankly, very rude. He has some serious anger issues. And I agree with Dr. Naimark there might certainly be some mental health issues here.
"The bottom line is this. If he wants to help his attorney, he can do so in a rational manner. And if chooses not to, he won't. So the bottom line is this Court does find the defendant is competent to stand trial."
The record shows defendant, in response to the court's ruling, stated, "God bless you, sir." The record further shows that after announcing its ruling, the court set trial dates and informed defendant he would have to continue working with his court-appointed public defender. Defendant in response protested, argued the court had said he would be appointed new counsel, and after he refused to stand up, was carried out of the courtroom by the bailiffs.
C. Guiding Principles
" 'Both the due process clause of the Fourteenth Amendment to the United States Constitution and state law prohibit the state from trying or convicting a criminal defendant while he or she is mentally incompetent. (§ 1367[, subd. (a) (noting in relevant part that a "person cannot be tried or adjudged to punishment . . . while that person is mentally incompetent," and further noting a "defendant is mentally incompetent for purposes of this chapter if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner")]; Drope v. Missouri (1975) 420 U.S. 162, 181; Pate v. Robinson (1966) 383 U.S. 375, 384-386; People v. Ramos (2004) 34 Cal.4th 494, 507.) A defendant is incompetent to stand trial if he or she lacks a ' "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — [or lacks] . . . a rational as well as a factual understanding of the proceedings against him [or her]." ' (Dusky v. United States (196[0]) 362 U.S. 402; see also Godinez v. Moran (1993) 509 U.S. 389, 399-400; § 1367; People v. Stewart (2004) 33 Cal.4th 425, 513.)" (People v. Rogers (2006) 39 Cal.4th 826, 846-847 [(Rogers)], brackets added herein.)'
" 'Both federal due process and state law require a trial judge to 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.] . . . Evidence of incompetence may emanate from several sources, including the defendant's demeanor, irrational behavior, and prior mental evaluations. [Citations.]' (Rogers, supra, 39 Cal.4th at p. 847.)" (People v. Lewis (2008) 43 Cal.4th 415, 524, overruled on another ground as stated in People v. Black (2014) 58 Cal.4th 912, 919-920.)
A defendant is presumed to be competent unless the trier of fact unanimously finds by "a preponderance of the evidence that the defendant is mentally incompetent." (§ 1369, subd. (f); see also People v. Lawley (2002) 27 Cal.4th 102, 131 (Lawley); People v. Rells (2000) 22 Cal.4th 860, 867 (Rells).) The party claiming incompetence bears the burden of proof. (See § 1369, subd. (f); Medina v. California (1992) 505 U.S. 437, 440; Rells, at p. 867.)
"A trial court's decision whether or not to hold a competence hearing is entitled to deference, because the court has the opportunity to observe the defendant during trial. [Citations.]" (Rogers, supra, 39 Cal.4th at p. 847.) We review the trial court's finding of competency for substantial evidence, viewing the record in the light most favorable to the verdict. (Lawley, supra, 27 Cal.4th at p. 131.) " 'Evidence is substantial if it is reasonable, credible and of solid value.' [Citation.]" (Ibid.)
D. Analysis
1. Substantial Evidence Supports the Finding Defendant was Competent
Defendant contends there is insufficient evidence in the record to support the court's finding he was mentally competent to stand trial, including that the opinions of Drs. Lindsey, Brannon, Firoz, and ultimately, Dr. Naimark, were "neither reliable nor credible" in light of his demeanor and irrational behavior during the competency hearing.
Although not technically relevant to the issue of defendant's competency, which involved a lengthy hearing before trial, the record nonetheless shows that at trial, defendant was much better behaved, was relatively calm and courteous to counsel and the court, and was able to answer the questions asked of him while on the witness stand. In fact, as discussed post in connection with defendant's sentencing, the court itself observed that when it benefitted defendant to behave, he was able to behave, including in front of the jury. The court at sentencing thus found defendant had been "manipulating" the system with regard to his pretrial behavior.
On review for substantial evidence, " 'we must view the evidence in the light most favorable to the People and must presume in support of the judgment [or order] the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the [trier of fact] . . . to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. [Citations.]' [Citation.]" (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Here, as summarized in detail ante, the record shows no less than four different doctors — three from PSH (i.e., Lindsey, Brannon, and Firoz) and one from county mental health (i.e., Naimark) — testified that defendant could, if he wanted to, rationally assist defense counsel in presenting his defense, which was the key issue in the multiday competency hearing. As noted, the court found Drs. Lindsey and Naimark's testimony particularly germane on this issue.
With respect to Dr. Lindsey, the court found she spent about 20 hours in 2013 examining and evaluating defendant in determining he was mentally competent. Dr. Lindsey noted that, during nearly every interview at PSH, defendant discussed potential defenses to his case, including self-defense; brain injury caused by the removal of a brain tumor shortly before the incident; reaction to seizure medications that he claimed made him violent; PTSD; and cognitive deficits among others. The record shows Dr. Lindsey's conclusion that defendant was malingering and was mentally competent was also shared by a team of experts at PSH who evaluated defendant, including a psychologist (i.e., Dr. Brannon), a rehabilitation specialist, a social worker, nursing staff, and others.
What's more, the record shows that defendant was twice evaluated at PSH, once in July 2013 and again about a year later. On both occasions, the experts at PSH found defendant mentally competent. These experts also found that defendant likely suffered from some form of mental illness, brought on by his 38-year history of drug and alcohol abuse.
As for Dr. Naimark, the court noted he was highly respected in the community and had followed defendant over the course of a couple of years. In fact, the record shows Dr. Naimark conducted multiple evaluations of defendant over this time period. Although Dr. Naimark initially found defendant incompetent, on his final mental status evaluation in November 2014, Dr. Naimark determined defendant was competent to stand trial, as defendant had stabilized and the issue was not whether he could, but rather whether he wanted to, rationally assist in his defense. The record shows this conclusion was also shared by Drs. Lindsey, Brannon, and Firoz. We conclude this testimony is reasonable and credible and as such, that substantial evidence supports the court's finding defendant was mentally competent to stand trial.
That there is evidence in the record from which the court as trier of fact could have reached the opposite conclusion does not change our decision in this case. This evidence included the testimony of Dr. Murphy, the defense expert, and Dr. Su, the PSH admissions nurse who assessed defendant on his second admission to PSH; the testimony of nurse Perkins; and defendant's ongoing disruptive and rude courtroom behavior.
Indeed, " '[i]t is of no consequence that the [trier of fact] believing other evidence, or drawing different inferences, might have reached a contrary conclusion.' " (People v. Ghipriel (2016) 1 Cal.App.5th 828, 832.) " 'Testimony may be rejected only when it is inherently improbable or incredible, i.e., " 'unbelievable per se,' " physically impossible or " 'wholly unacceptable to reasonable minds.' " ' [Citation.]" (People v. Ennis (2010) 190 Cal.App.4th 721 at p. 729, quoting Oldham v. Kizer (1991) 235 Cal.App.3d 1046, 1065.) As a court of review, we cannot discount or discredit admissible evidence, reweigh admissible evidence and infer from admissible evidence facts that do not support the court's finding defendant was competent. (See People v. Albillar (2010) 51 Cal.4th 47, 60 [noting the well-recognized principle that a court of review " 'neither reweighs evidence nor evaluates a witness's credibility' "]; People v. Manibusan (2013) 58 Cal.4th 40, 92 [noting " ' "[w]hether the evidence presented at trial is direct or circumstantial . . . the relevant inquiry on appeal remains whether any reasonable trier of fact could have found [as the jury did]" ' "]; People v. White (2014) 230 Cal.App.4th 305, 319, fn. 14 [noting the "circumstances in which an appellate court may properly decline to credit testimony are exceptional and rare"].) Because substantial evidence supports the court's finding defendant was mentally competent, we reject his claim of error.
2. The Court Properly Excluded the Testimony of Defense Counsel and Any Error in Doing so Was Harmless
Defendant also contends that the court erred in excluding the testimony of defense counsel who represented him in the competency hearing and his former defense counsel. We conclude the court did not err in excluding this testimony and that, in any event, such error was harmless in light of the substantial evidence supporting the finding that defendant was mentally competent to stand trial.
Our high court's decision of People v. Mickle (1991) 54 Cal.3d 140 (Mickle) informs our analysis of this issue. In Mickle, after the defendant was found guilty of first degree murder in the guilt phase but before the penalty phase began, defense counsel sought a competence hearing for defendant, as they " 'question[ed]' " defendant's " 'ability to make intelligent and effective choices' " and to " 'cooperate in his own defense.' " (Id. at p. 181.) As a result, criminal proceedings were suspended and psychiatrists were appointed to examine the defendant. Unlike in the instant case, the defendant in Mickle was appointed new counsel for the competency hearing. (See ibid.)
The competency hearing in Mickle took place over a three-day period. At the start of the hearing, defendant's competency attorney (i.e., Digiacinto) called one of defendant's trial attorneys (i.e., Barnett) to the witness stand. "The following events occurred outside of the jury's presence: the prosecutor objected to Barnett's testimony on grounds he might reveal confidential communications in violation of defendant's attorney-client privilege. The court deferred ruling on the issue and allowed Barnett to answer preliminary questions. When ultimately asked for his opinion on defendant's present competence to stand trial, Barnett said he 'could not' answer unless defendant personally waived the attorney-client privilege and 'possibly the doctor-patient privilege.' " (Mickle, supra, 54 Cal.3d at p. 181.)
The court presiding over the competency hearing next asked the defendant whether he understood Barnett's answer. When the defendant in Mickle acknowledged he did, the court explained to the defendant "that, in order to answer questions about [his] mental condition, Barnett might be required to disclose privileged communications. Defendant twice replied that he would not waive the privilege. The court then advised defendant that his decision might prevent Barnett from giving favorable testimony in defendant's behalf, but that the court did not actually know what Barnett would say. The court asked defendant whether he wished to consult privately with Digiacinto. Defendant said, 'yes.'
"After the meeting, the court again asked defendant whether he understood that he had the right to prevent Barnett from disclosing confidential 'conversations' or 'knowledge' obtained through defendant or mental health experts. Defendant indicated that he did. The court asked defendant whether he waived the privilege. Defendant said, 'no.'
"Digiacinto made the following statement: 'I find myself . . . between a rock and a hard place. [¶] [T]he only evidence which could be [ad]duced on [defendant's] behalf is Mr. Barnett's testimony. Not having that testimony is in effect a deprivation of [defendant's right to a competency] hearing. At the same time, how can anybody [with] a Bar card advise him otherwise [?]' (Italics [omitted.])" (Mickle, supra, 54 Cal.3d at p. 182.) The trial court then sustained defendant's assertion of the privilege, noting that because defendant was presumed competent and bore the burden of proving his incompetence, "he is 'presumed, ergo, to have the mental ability to form a reasoned opinion as to whether to waive his privilege or not.' [Citation.]" (Ibid.)
After the defense in Mickle rested, the prosecution called two court-appointed psychiatrists who separately opined defendant was able to "understand the proceedings and assist counsel" in his defense. (Mickle, supra, 54 Cal.3d at p. 182.) The trier of fact found defendant competent to stand trial. (Ibid.)
On appeal, the defendant in Mickle argued the court erred in presuming him competent to assert the attorney-client privilege over Digiacinto's objection because when the court granted the motion for a competency hearing, it "implicitly expressed a 'doubt' as to his competence." (Mickle, supra, 54 Cal.3d at p. 182.) Defendant further argued that such " 'doubt' rendered him presumptively incapable of personally deciding whether to exercise any right or privilege during the competency phase." (Id. at pp. 182-183.)
Our high court in Mickle rejected this argument, which is similar to the one made by defendant in the instant case. It first concluded defendant had not preserved the waiver issue on appeal because "no unequivocal objection to the application of the privilege" was made during the competency hearing, inasmuch as after the defendant refused to waive the privilege after meeting with Digiacinto one last time, Digiacinto and Barnett informed the court they had no choice but to respect defendant's decision. (Mickle, supra, 54 Cal.3d at pp. 183-184.)
More important to the present case, however, the Mickle court found "nothing in the appellate record suggests that defendant's refusal to waive the attorney-client privilege was the product of impaired or 'defective judgment.' [Citation.]" (Mickle, supra, 54 Cal.3d at p. 184.) The court went on to note that "no evidence of incompetence was introduced before or during the competence hearing" (ibid), and that the defendant's "statements to the court about the attorney-client privilege were coherent and precise, and strongly suggested that he was capable of deciding whether to assert it" (ibid.).
Finally, the court found the defendant was not prejudiced by the court's decision to sustain the privilege. (Mickle, supra, 54 Cal.3d at pp. 184-185.) The court noted two psychiatrists testified that the defendant was competent to stand trial, and that neither psychiatrist diagnosed the defendant as suffering from a serious mental disorder. Relying on People v. Watson (1956) 46 Cal.2d 818, 836 (Watson), the Mickle court concluded it was "not reasonably probable that Barnett's uncorroborated lay opinion would have convinced the jury otherwise." (Mickle, supra, 54 Cal.3d at pp. 184-185.)
Here, we note Mickle is somewhat factually distinguishable from the instant case in that defense counsel did offer evidence during the competency hearing to support a finding defendant was mentally incompetent, including among other evidence the testimony of Drs. Murphy and Su, as summarized ante. We nonetheless conclude Mickle provides some guidance on our issue.
Similar to the facts in Mickle, the record in the instant case shows defendant made a knowing and tactical decision not to waive the attorney-client privilege. (See Mickle, supra, 54 Cal.3d at p. 184.) Indeed, the record shows the court itself questioned defendant to ensure he understood the issue and, based on that understanding, whether he wanted to waive the privilege and allow defense counsel to testify in the hearing. The record shows defendant unequivocally refused to waive the privilege.
Moreover, throughout the competency hearing defendant bitterly complained that it was the defense counsel's fault that he was even subject to a competency hearing; that he did not trust defense counsel to act in his best interest; that defense counsel's behavior was designed to embarrass, and provoke an emotional outburst from, him; that he wanted new counsel appointed; that he was in fact competent, despite the assertions of defense counsel otherwise; and that if new counsel was appointed, he would be more than willing to assist such counsel in his defense, and would be willing to consider other possible defenses raised by such counsel.
The record also shows during his cross-examination by the prosecutor, defendant refused to discuss in detail his possible defenses in court, noting the prosecutor was the "enemy" and that this information was "privileged." Much like the defendant in Mickle, defendant in the instant case clearly understood that invoking the privilege was his right and that once invoked, such information could not be disclosed. On this record, we cannot say, nor did the court find, that defendant's refusal to waive the privilege was the product of "impaired or 'defective judgment.' " (See Mickle, supra, 54 Cal.3d at p. 184.)
In addition, as the court and the parties in the instant case correctly noted, a defendant is presumed competent and bears the burden of proving his or her incompetence. (See § 1369, subd. (f) [noting a defendant is "presumed" to be "mentally competent unless it is proved by a preponderance of the evidence that the defendant is mentally incompetent"].) Under Evidence Code sections 953 and 954, a client — defendant in the instant case — is deemed the holder of the privilege to prevent the disclosure of confidential communications between the client and his or her attorney.
"The attorney-client privilege is based on grounds of public policy and is in furtherance of the proper and orderly functioning of our judicial system, which necessarily depends on the confidential relationship between the attorney and the client." (People v. Gionis (1995) 9 Cal.4th 1196, 1207 (Gionis).) "In the criminal context, 'these policies assume particular significance: " 'As a practical matter, if the client knows that damaging information could more readily be obtained from the attorney following disclosure than from himself in the absence of disclosure, the client would be reluctant to confide in his [or her] lawyer and it would be difficult to obtain fully informed legal advice.' . . . Thus, if an accused is to derive the full benefits of his right to counsel, he [or she] must have the assurance of confidentiality and privacy of communication with his attorney." [Citations.]' " (Ibid., quoting People v. Meredith (1981) 29 Cal.3d 682, 691.)
In light of the important, albeit competing, public policies underlying the attorney-client privilege, and our Legislature's intent to "occupy the field" and avoid judicial policy making in connection with statutory privileges (see Evid. Code, § 911 [noting privileges are created by statute]), we are unwilling to create a common law rule allowing an attorney during a section 1368 competency hearing to waive over his or her client's objection the attorney-client privilege to establish a defendant's incompetency, when that issue is the very subject of the hearing in the first instance and when the client confided in his or her attorney without knowledge that such confidences potentially could be disclosed against his or her wishes. To the extent such a rule is to be created, in our view it should be done by our Legislature. (See Welfare Rights Organization v. Crisan (1983) 33 Cal.3d 766, 773 [noting "courts are not free to modify [privileges] or create new privileges as a matter of judicial policy"].)
Finally, we conclude that even if the court erred when it ruled to exclude the testimony of defendant's former and then-current defense counsel in the competency hearing, we conclude that error was harmless under the Watson standard. It was not reasonably probable that the lay opinion testimony of these witnesses, when compared to the expert witness testimony of the doctors who found defendant was malingering and thus mentally competent, would have convinced the court to find otherwise. (See Mickle, supra, 54 Cal.3d at pp. 184-185.) For this additional reason we reject defendant's claim of error.
II
Substantial Evidence Supports the Finding of Deliberation and Premeditation (Count 1)
As noted, the jury found defendant acted with premeditation and deliberation in his attempt to murder Carlos with a crowbar. Defendant contends there is not substantial evidence from which the jury could reasonably infer that the attempted murder was "the result of 'a preexisting reflection' and 'careful thought and weighing of considerations' rather than 'mere unconsidered or rash impulse hastily executed.' " (People v. Anderson (1968) 70 Cal.2d 15, 27 (Anderson).) We disagree.
A. Guiding Principles
Unlike murder, "attempted murder is not divided into degrees, but the sentence can be enhanced if the attempt to kill was committed with premeditation and deliberation. [Citation.]" (People v. Gonzalez (2012) 54 Cal.4th 643, 654; People v. Smith (2005) 37 Cal.4th 733, 739 (Smith) [noting that attempted murder requires a specific intent to kill, or express malice, " 'and the commission of a direct but ineffectual act toward accomplishing the intended killing' "].) Intent "may in many cases be inferred from the defendant's acts and the circumstances of the crime." (Smith, at p. 741.)
As noted ante, to determine the sufficiency of the evidence, we consider the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (Lawley, supra, 27 Cal.4th at p. 131; see also People v. Mendoza (2011) 52 Cal.4th 1056, 1068-1069.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support" ' the jury's verdict. [Citation.]" (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
Our high court in Anderson recognized three categories of evidence an appellate court should consider in deciding whether the evidence is sufficient to support a finding of premeditation: planning activity, motive, and the manner of killing (or, as in this case, attempted killing). (Anderson, supra, 70 Cal.2d at pp. 26-27.) Planning activity is activity prior to the killing that was "directed toward, and explicable as intended to result in, the killing." (Id. at p. 26.) To support a finding of premeditation, such evidence must show that the "defendant considered the possibility of murder in advance" of the killing. (People v. Young (2005) 34 Cal.4th 1149, 1150.)
Motive evidence includes facts about the defendant's relationship with the victim or his or her conduct toward the victim that implies a motive to kill. (Anderson, supra, 70 Cal.2d at p. 27.) Evidence of the manner of an attempted killing may indicate that the defendant must have committed the crime according to a preconceived design. (See ibid.)
" 'The process of premeditation and deliberation does not require any extended period of time. "The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. . . ." [Citations.]' [Citation.]" (People v. Koontz (2002) 27 Cal.4th 1041, 1080 (Koontz).)
Anderson observed that courts have upheld findings of premeditation and deliberation when all three types of evidence are present. (Anderson, supra, 70 Cal.2d at p. 27.) Even in the absence of motive or manner of killing, however, the findings have been upheld when there is "extremely strong" evidence of planning activity. (Ibid.; see People v. Alcala (1984) 36 Cal.3d 604, 627 (Alcala) [noting planning is "the most important prong" of the Anderson factors], overruled by statute as stated in People v. Falsetta (1999) 21 Cal.4th 903, 911.)
Although the Anderson factors are "helpful for purposes of review," our high court has cautioned against "[u]nreflective reliance" on them. (People v. Thomas (1992) 2 Cal.4th 489, 517.) The factors provide a framework to help the court assess whether the evidence presented supports an inference that the killing resulted from a "preexisting reflection and weighing of considerations," but they are not an exclusive or exhaustive list of considerations. (Koontz, supra, 27 Cal.4th at p. 1081; see People v. Halvorsen (2007) 42 Cal.4th 379, 420 [noting the Anderson "guidelines are descriptive and neither normative nor exhaustive, and . . . reviewing courts need not accord them any particular weight"].)
B. Analysis
Applying the foregoing principles, we conclude that substantial evidence supports the jury's finding that defendant acted with premeditation and deliberation in attempting to kill Carlos. With respect to "planning activity," we disagree with defendant's contention that there was no evidence of prior planning in the instant case.
Indeed, prior to the attack, the record shows defendant at least three times asked Carlos for $1 for gas because he wanted to leave the area. When Carlos refused to give defendant any money, defendant then went to his truck, picked up a crowbar, and confronted Rivera. Defendant then said, "Bitch, give me a dollar. I'm going to hit you." Defendant made this threatening comment to Rivera while holding the crowbar, as Carlos was at the pay booth some distance away. When Rivera became frightened, opened the passenger side door and yelled for Carlos, defendant intercepted Carlos and, without warning, struck Carlos about 25 times on the head, causing serious and permanent injury to him.
But that's not all. The record shows the evening before the incident, defendant threatened to kill Benavidez with a crowbar after Benavidez told defendant to leave the club. Benavidez testified earlier that same day, defendant also threatened to kill him. During that incident, Benavidez through a window watched defendant go to defendant's truck and pull out a "bar" of some sort. After a while, Benavidez saw defendant put the bar back into defendant's truck and drive away.
We conclude this evidence is substantial and supports the finding of the jury that defendant engaged in planning activity with the intent to kill when he went to his truck, picked up the crowbar, and waited for Carlos to return to his car after Carlos and Rivera both refused to give defendant money to buy gas.
This same substantial evidence also supports a finding of motive. (See Anderson, supra, 70 Cal.2d at p. 27.) The jury could reasonably infer that defendant hit Carlos with the crowbar because defendant was angry after Carlos and/or Rivera had refused to give him a single dollar to buy gasoline at about 2:40 a.m., when ostensibly very few people would be at the gas station from whom defendant could ask for money.
Finally, the manner of the attempted murder also supports a finding of intent. The jury could reasonably find that defendant's threat to kill Benavidez with a crowbar the evening before the attack on Carlos shows that defendant knew a crowbar could kill a person, particularly when there is evidence that defendant hit Carlos on the head with the crowbar about 25 times. In addition, defendant himself admitted that "[e]verybody knows" that hitting a person on the head with a crowbar could kill that person. Viewing the evidence in the light most favorable to the judgment, we conclude the jury could reasonably find defendant acted with an intent to kill in connection with the attempted murder of Carlos. As such, we reject this claim of error.
III
Substantial Evidence Supports the Finding of Intent to Maim (Count 2)
Defendant next contends there is insufficient evidence to support the finding he intended to maim Carlos. We again disagree.
"A person is guilty of aggravated mayhem when he or she unlawfully, under circumstances manifesting extreme indifference to the physical or psychological well-being of another person, intentionally causes permanent disability or disfigurement of another human being . . . ." (§ 205.) Aggravated mayhem is "a specific intent crime, such that conviction requires proof beyond a reasonable doubt 'that the defendant acted with the specific intent to cause a maiming injury.' [Citation.]" (People v. Manibusan, supra, 58 Cal.4th at p. 86; People v. Quintero (2006) 135 Cal.App.4th 1152, 1162 (Quintero).)
The requisite specific intent to maim cannot be inferred solely from the injury itself, but may be inferred from other facts and circumstances. (People v. Park (2003) 112 Cal.App.4th 61, 64.) "[E]vidence of a 'controlled and directed' attack or an attack of 'focused or limited scope' may provide substantial evidence" of a specific intent to maim. (Quintero, supra, 135 Cal.App.4th at p. 1162.) A "defendant may intend both to kill his or her victim and to disable or disfigure that individual if the attempt to kill is unsuccessful." (See People v. Ferrell (1990) 218 Cal.App.3d 828, 833-834.)
Here, the record includes evidence from which the jury could reasonably find that defendant engaged in a controlled and directed attack against Carlos. (See Quintero, supra, 135 Cal.App.4th at p. 1162.) Indeed, as noted ante, defendant struck Carlos only on or near the head region about 25 times with a crowbar, as opposed to randomly attacking Carlos's body with the crowbar. (See People v. Campbell (1987) 193 Cal.App.3d 1653, 1668-1669 [noting the "controlled and directed nature of the attack" to the victim's face with a screwdriver, "rather than randomly attacking [the victim's] body," supported an inference that the defendant intended to disfigure only the victim's face and ear]; compare People v. Lee (1990) 220 Cal.App.3d 320, 325 [noting an " 'indiscriminate attack' " by the defendant to multiple parts of the victim's body was insufficient to support the intent to maim for purposes of aggravated mayhem].)
Moreover, as further noted ante, Carlos suffered disfigurement and a permanent disability as a result of the attack. (See § 205.) We thus conclude the jury could reasonably find defendant acted with the requisite intent to maim Carlos based on defendant's repeated blows with the crowbar to Carlos's head.
IV
Sentencing
Defendant next contends the court erred in imposing the upper term on count 3 for the attempted robbery of Rivera. We disagree.
A. Additional Background
At sentencing, the record shows the prosecutor argued the court should impose life plus 10 years because "of the senseless nature" of the crime against both Carlos and Rivera and the "impact on the community and the public danger that [defendant] faces to anyone if he's let out soon." The record further shows the court reviewed defendant's probation report, two statements in aggravation and one in mitigation, and noted "most importantly" it had "heard the trial" and has had the instant case for nearly three years including the lengthy competency hearing. With respect to the issue of competency, the court noted, "I made the call you were competent because you were competent. You were manipulating the system. When during the trial, when you had to behave, you behaved, and it was all a choice factor on your part. And I just — you knew how to proceed in your best interest, which was at trial to behave in front of the jury, and you did.
"I appreciate the fact that you have been controlled today. I have to say one thing, though. The video, the defendant — the victim's statement [on the video], you destroyed his life, and to say that 'I don't have any hate' is an amazing statement.
"And this is the bottom line, is if you have remorse, if you have remorse, it's not . . . for the victim, it's for you. You are unhappy about being in this situation. Every time, every time you lifted and swung that crowbar you were essentially saying I want to kill you. It's amazing he's alive after 25 blows.
"Now, you — your truth or your testimony is it was about self-defense. If it was about self-defense, if, then you would have hit him once, put down the crowbar and got help, but you didn't do that. You didn't do that."
The record also shows after a series of interruptions by defendant in which he argued the merits of his self-defense claim, the court, remaining ever-patient, informed defendant it had the "[l]ast word" and then sentenced defendant as follows: "Well, this is the bottom line. Your conduct shows that are you are not fit to live in civil society. You can never be free again, and you must be kept apart from everybody else because you are a violent man. . . . [¶] . . . Let me tell you something. If, in the future there will be a parole hearing . . . [¶] . . . my advice to the future parole board . . . [¶] . . . is that you never get out of prison. . . . [¶] . . . You are a danger to the public. Your conduct shows that. You're a very violent man."
After defendant told the court he was a "hero," the court sentenced defendant as follows on count 3: "I make the following findings in aggravation. First of all, the crime in — the robbery was a very violent crime. You threatened the young lady. You were armed with a crowbar. Based on — and there are no — so those are the aggravating situations.
"There are no mitigating situations.
"Based on that, I choose the upper term of three years; consecutive to that will be one year on [section] 12022 for four years. Total prison term: life with 10 years. . . ."
The probation report relied on by the court noted as to count 3 that there were no circumstances in mitigation contained in California Rules of Court (rule), rule 4.423, which lists various factors in mitigation. As to rule 4.421, subdivision (a), the report found under subpart (1) that the instant crime "involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness." The probation report recommended the middle term of two years, as opposed to the three-year upper term ultimately imposed by the court. The report also found the one-year enhancement under section 12022, subdivision (b)(1) should not be imposed because under subdivision (h) of section 12022.7, the court "shall only impose one additional term of imprisonment for multiple violations" of subdivisions (a), (b), (c), or (d) of section 12022.
B. Guiding Principles and Analysis
On appeal, we are required to review the trial court's decision to impose an upper term for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847 (Sandoval).) A trial court is "required to specify reasons for its sentencing decision, but [is not] required to cite 'facts' that support its decision or to weigh aggravating and mitigating circumstances." (Id. at pp. 846-847.) Under California's determinate sentencing law, "a trial court is free to base an upper term sentence upon any aggravating circumstance that the court deems significant, subject to specific prohibitions." (Id. at p. 848.) "[T]he existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term." (People v. Black (2007) 41 Cal.4th 799, 813 (Black).) "The court's discretion to identify aggravating circumstances is otherwise limited only by the requirement that they be 'reasonably related to the decision being made.' " (Sandoval, supra, at p. 848.)
Here, we reject defendant's contention that the trial court abused its discretion in sentencing him to the upper term in count 3. Indeed, the record contains substantial evidence to support the aggravating factor that the crime against Rivera involved "great violence" when defendant approached the car at about 2:40 a.m. and, while holding a crowbar, stated to Rivera, "Bitch, give me a dollar. I'm going to hit you." Because a single aggravating circumstance is legally sufficient to make a defendant eligible for the upper term (see Black, supra, 41 Cal.4th at p. 813), we conclude the court properly exercised its discretion when it sentenced defendant to the upper term in count 3.
As such, we reject defendant's contention the court prejudicially erred in also relying on the factor that, when defendant attempted to rob Rivera, he used a weapon (i.e., a crowbar (rule 4.421(a)(2)), inasmuch as this same factor was used to impose the arming enhancement on count 2. (See e.g., § 1170, subd. (d).) In any event, the record shows the court also found defendant was a "serious danger to society" (see rule 4.421(b)(1)), which provides a separate basis to impose the upper term on count 3."
Because we reach the merits of this issue, we find it unnecessary to resolve either respondent the People's alternate contention that defendant forfeited this claim of error on appeal by failing to object in the trial court or defendant's claim that defense counsel provided ineffective assistance of counsel by his failure to object to the upper term on count 3.
Defendant nonetheless claims the court erred when it refused to consider his alleged mental illness as a mitigating circumstance. Rule 4.423, subdivision (b)(2) provides a court may consider as a mitigating circumstance that a defendant "was suffering from a mental or physical condition that significantly reduced culpability for the crime." Although the probation report did not list mental illness as a mitigating factor, the record belies defendant's contention that the court did not consider this particular factor at sentencing.
Rather, the record clearly shows that the court considered the fact that defendant had been through a lengthy section 1368 competency hearing; that the court had presided over that hearing and found defendant competent; that during the trial, defendant had behaved in front of the jury, thus proving to the court when defendant wanted to behave, he could, and that when defendant chose not to behave, it was because defendant was "manipulating" the system; and that ultimately the court imposed the upper term on count 3 because of the aggravating factor and because the court noted defendant was a very violent man. We thus reject defendant's contention the court prejudicially erred when it allegedly failed to consider mental illness as a mitigating factor.
Because the court considered defendant's mental illness in mitigation, we reject his contention that defense counsel provided ineffective assistance by failing to argue this factor as a circumstance in mitigation. --------
DISPOSITION
Defendant's judgment of conviction is affirmed.
/s/_________
BENKE, Acting P. J. WE CONCUR: /s/_________
HALLER, J. /s/_________
IRION, J.