Opinion
A142265
01-20-2017
THE PEOPLE, Plaintiff and Respondent, v. HONG RI WU, Defendant and Appellant.
ORDER MODIFYING OPINION [NO CHANGE IN JUDGMENT] THE COURT:
It is ordered that the opinion filed herein on January 20, 2017, be modified as follows:
1. On page 12, delete the first sentence of the last paragraph on the page and replace it with the following sentence:
At the separate Riese hearing, a different judge adjudged Wu gravely disabled under Welfare and Institutions Code section 5250.
There is no change in the judgment.
/s/_________
Humes, P.J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City and County Super. Ct. No. SCN220623)
Murder charges were brought against appellant Hong Ri Wu after he shot and killed two people in a retail store in early 2011. After his attorney raised doubts about Wu's competency to stand trial, a hearing was held, and the trial court ruled in May 2012 that Wu was competent. Wu's trial, however, did not begin until March 2014. In the early stages of the trial, Wu was hospitalized, determined by a different judge to be gravely disabled, authorized to be forcibly fed and involuntarily medicated, and diagnosed by a treating psychiatrist to be incompetent to stand trial. Although Wu's attorney repeatedly raised doubts during this period about Wu's competency, the trial court declined to order a second competency hearing. The trial ensued without Wu's presence, and Wu was convicted of two counts of first degree murder.
We conclude that the trial court erred in declining to order a second competency hearing. Accordingly, we reverse the judgment and remand for further proceedings.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
In January 2011, Wu worked in a store on Jefferson Street in the Fisherman's Wharf area of San Francisco. He had an ongoing dispute with a man and a woman who worked in an adjacent store over whether both stores were permitted under their leases to sell the same types of merchandise. Around 8 p.m. on January 30, 2011, Wu entered the adjacent store and shot them both. After hearing the gunshots, a woman who worked in a nearby store came to the scene, and Wu told her to call police and said, "I killed them." Wu was still in the store when a security guard arrived. A gun was on a store counter, and Wu told the guard he had shot the victims, who died at the scene. Wu later gave a recorded statement to police acknowledging that he had killed the victims.
The following month, Wu was charged by felony complaint with two counts of murder, and he entered pleas of not guilty. (Pen. Code, § 187, subd. (a).) Several months later, on June 2, Wu's attorney raised a doubt about Wu's competence under section 1368. The trial court suspended the proceedings for the purpose of having Wu evaluated. The proceedings remained suspended for over a year, and the trial was delayed for almost two years after that.
All statutory references are to the Penal Code unless otherwise specified.
The Proceedings Are Suspended from June 2011 to June 2012.
During the year the proceedings were suspended, Wu was evaluated by two different evaluators. The first was Dr. Amy Watt, who spoke Wu's native language of Cantonese and who concluded in her report that Wu was incompetent to stand trial. The trial court struck Dr. Watt's report, however, after it found that the report was based in part on observations Dr. Watt had made of a meeting between Wu and his attorney and therefore violated the Civil Discovery Act of 1986 governing mental examinations. (E.g., Baqleh v. Superior Court (2002) 100 Cal.App.4th 478.)
Wu filed a writ petition in this court challenging the trial court's order, and the petition was denied on December 14, 2011. (Wu v. Superior Court, A133534.)
The second evaluator was Dr. Brad Novak, who initially had difficulty evaluating Wu because Wu refused to be interviewed and was apparently engaging in a hunger strike. Dr. Novak first reported that he could not opine on whether Wu was competent to stand trial because of Wu's lack of cooperation. But, months later, the trial court ordered Dr. Novak to complete an updated report, and Dr. Novak did so in May 2012, this time after being able to interview Wu for an hour and 45 minutes.
In his report, Dr. Novak concluded that Wu was competent to stand trial because Wu understood the legal system and had the ability to cooperate with his attorney, even if he did not always choose to do so. The report acknowledged Wu's hunger strikes but stated that people without mental illness can go on hunger strikes and that Wu's hunger strikes were motivated in part by his desire to switch attorneys or to "get his way from a legal standpoint" and thus were "best understood as manipulative behavior aimed at getting his desired legal outcome in the context of being upset and angry at the legal system." The report also mentioned that Wu had made unusual comments about his organs having been "removed from his body or damaged," and he had reported delusions about physicians sending medicine and food to him through air vents, but these were seen as signs of his manipulative behavior or thoughts that developed during Wu's hunger strike, and not evidence of schizophrenia or a delusional disorder. The report stated that Wu had "occasionally been diagnosed with (or at least had the diagnoses considered . . . ) a psychotic disorder such as a delusional disorder or psychotic disorder not otherwise specified, he typically has not received such diagnoses and there is a noted lack of evidence to warrant such diagnoses." Dr. Novak characterized Wu's case as both easy and hard. It was "relatively easy" insofar as little evidence showed the type of mental illness that would be a basis to find Wu was incompetent to stand trial, but it was "relatively difficult" insofar as Wu appeared to suffer from a personality disorder, the specifics of which were hard to determine. According to Dr. Novak, it was unnecessary to specify a personality disorder, however, because any such disorder would not be the basis for a determination of incompetence to stand trial. Dr. Novak reported that in light of Wu's underlying personality disorder, interpersonal-relationship issues, and history of refusing to cooperate, Wu was likely to continue to act out over the course of the proceedings, particularly if they did not go his way. In June 2012, both parties submitted on the updated report, the trial court ruled that Wu was competent to stand trial, and the court then reinstated criminal proceedings, with plans to hold the preliminary hearing later that month.
The Proceedings Are Delayed from June 2012 to July 2013.
The preliminary hearing did not take place, however, for over a year. The delay was caused partly because Wu twice unsuccessfully requested that his attorney be removed under People v. Marsden (1970) 2 Cal.3d 118, and the preliminary hearing had to be continued several times. In May 2013, the trial court attempted to hold a preliminary hearing, but Wu refused to cooperate. When the parties reconvened in July 2013, Wu's attorney requested another continuance claiming that Wu was physically ill and unable to sit through the hearing. After a doctor at the jail's medical facility examined Wu and found him to be physically able to proceed, the trial court denied the continuance, and Wu responded by exclaiming, "No way. Stop. Fuck you," and continued cursing after the trial court warned him not to be disruptive. The trial court ordered Wu removed from the courtroom after Wu continued shouting, and the preliminary hearing began in his absence.
After the first witness had testified for a short time, Wu was brought into the courtroom so that his attorney could ask him if he wanted to be present. Wu's attorney reported that Wu said he did not want to return to the courtroom, but he also was holding his stomach, and Wu's attorney also reported that he had learned that Wu had wrapped his abdomen with toilet paper where he said he was in pain. The doctor who had examined Wu before the hearing was then asked questions about her examination. The doctor stated that Wu had said "bizarre things," such as the fact that "his heart was in his abdomen," and that Wu needed to be evaluated by jail psychiatric services. The doctor was concerned that Wu had refused medical evaluation for a year. The preliminary hearing proceeded, Wu was held to answer after the conclusion of testimony, and an information was filed charging Wu with two counts of murder.
Wu's arraignment took place a few days later, and Wu's attorney declared that circumstances had changed since Wu was previously declared competent to stand trial. Defense counsel noted that Wu previously had been respectful of the court, whereas he recently had cussed out judges and spoke in hostile tones during hearings. Counsel also stated that Wu previously had always accepted visits from him (the attorney) but had recently declined to see him several times and refused to confer with him in court. Finally, counsel pointed out that Wu's delusions had persisted long after he ended his hunger strike. The prosecutor argued that the defense had not sufficiently demonstrated a change of circumstances to cast a serious doubt on the validity of the previous competency finding, as required under People v. Jones (1991) 53 Cal.3d 1115 (Jones). The trial court found that there was no substantial evidence of Wu's mental incompetence and thus declined to order a competency hearing.
The Pretrial Conference and Trial Are Held the Following Year, in March 2014.
After additional continuances, the pretrial conference was finally held on March 3, 2014. Over the next several days and weeks, the trial court, attorneys, and court personnel were faced with Wu's outbursts, bizarre behavior, and eventual hospitalization. We describe these March 2014 events in detail, acknowledging that Wu's behavior was challenging for everyone involved, including the trial court.
When the pretrial conference began, Wu addressed the court against his attorney's advice, stating that "my attorney is not speaking out for me. He only helps you [the trial court]. He's only helping you to protect criminals. He has never done anything on my behalf." The parties proceeded to discuss a proposed jury questionnaire, without responding to Wu's statement. During the discussion about the questionnaire, Wu again spoke out, stating, "I'm asking you one more time before you conduct this trial, give me justice." He repeated a longstanding claim that his first attorney had stolen money from him, asked who had given him "medication to hurt my health," claimed that a deputy sheriff had hit him, and complained about other aspects of the proceedings. The trial court said Wu could address those issues with his attorney, and the parties continued to discuss the questionnaire, albeit with another interruption from Wu. After their discussion, the trial court said they would meet again at 9:00 a.m. the following morning, at which point Wu said, "I have to be here tomorrow? I don't think it's necessary. I don't want to see you anymore." His attorney said it was important that Wu be present for pretrial motions, and the trial court ordered Wu to be present.
The following morning, Wu's attorney again declared a doubt about Wu's competence. Counsel stated that Wu was unable to cooperate with him and had refused to meet with him or to even talk with him in court. Counsel stated that it was "clear that [Wu] does not understand the process because he seems to believe that these court appearances and that this courtroom can conduct business other than the defense of his case. He doesn't seem to understand that defending his case is the only matter that concerns this Court . . . ." The prosecutor objected to suspending proceedings and submitted into evidence Dr. Novak's two previous reports, which the prosecutor argued documented the same behaviors that Wu's attorney was describing two years later. The trial court denied the motion to suspend proceedings, concluding that there was no significant change in evidence on the competency finding. Shortly after the court made its ruling, Wu again interrupted proceedings, stating that "I want to forewarn my defense attorney that in the future if I'm not allowed to speak I might use profanity." Wu criticized the proceedings and said "Shame on you" to the trial judge when the judge announced that he was about to step away for a recess.
When court reconvened about a half hour later for an evidentiary hearing about the admissibility of Wu's statements to police after his arrest, Wu's attorney told the court that he had just received a call from the jail's medical center informing him that Wu refused to eat. The trial court declined to revisit its competency ruling, stating that "I believe this [Wu's refusal to eat] has come up in the past." Wu was in the courtroom at the beginning of the evidentiary hearing that followed, but he interrupted the proceedings to ask if he could leave because he was not feeling well. His attorney argued that Wu had a right to be present unless he was disruptive, and the court denied Wu's request to be removed from the courtroom. Wu then said, "I'm not feeling well. I feel dizzy," and he asked, "How can I be patient? I already said I would admit to everything. What else do you need to prove?" When the court directed Wu not to say anything else, Wu responded, "Fuck you again." The court told Wu there would be breaks during proceedings, and the hearing resumed after Wu again said he wanted to leave.
A video of Wu's statements to police was played as part of the ongoing evidentiary hearing, but the bailiff asked for a pause in proceedings after Wu lay down on the floor. The bailiff asked the court if defendant should be taken to a holding cell, but the trial court said that "[i]f he's content to lie on the floor there, then I'm content to let him lie on the floor." Wu's attorney again argued that there was good cause for a medical and psychiatric evaluation, but the court denied the request, stating that Wu's behavior was "somewhat characteristic of Mr. Wu's conduct and timing." The testimony that followed was interrupted when the bailiff told the trial court that "we can't have him [Wu] on the floor." Wu was then taken to the holding cell, and the bailiff said the door would be kept open so that Wu could hear the proceedings. For the remainder of the day's proceedings, Wu remained in the holding cell with a Cantonese interpreter sitting in the doorway to translate what transpired in the courtroom.
Soon after court convened the next morning (March 5), Wu's attorney reported that he had received an email from the jail's medical director stating that Wu had not been eating since the morning of March 1. Wu was also refusing to have his vital signs monitored and was protesting the fact that there was "no justice," according to the director's email. Wu's attorney entered a continuing objection that Wu was medically unable to sit through trial and that he had shown good cause for the trial court to continue the case. The trial court did not immediately address the issue. Wu was present for the evidentiary proceedings that continued that morning, though he was again placed in the holding cell with an interpreter translating for him after Wu again complained about not feeling well. Before the lunch recess, Wu's attorney reported that Wu did not wish to attend the afternoon proceedings but argued that Wu needed to attend unless he was being disruptive. Wu stated through the interpreter that he had "not been listening at all," but the trial court said that "he needs to attend."
Wu was not present when proceedings began the following morning (March 6), and the bailiff reported that Wu had told the bailiff he was not feeling well and that Wu refused to get up. Wu's attorney argued that Wu was medically unable to proceed, but the trial court disagreed, stating that "Mr. Wu is apparently on a hunger strike which is causing his dizziness. This is all self-inflicted by Mr. Wu. He stated many times on the record he does not want to be here, and obviously he's doing things volitionally, intentionally, on his own to prevent him from being here. [¶] If Mr. Wu would eat, obviously his condition would improve." The parties then discussed the possibility of the trial court ordering a medical examination of Wu. The court expressed frustration about Wu's refusal to eat, stating, "I'm seeing Mr. Wu's modus operandi here, his conduct, his pattern, and it's not going to stop, I'm sure." The court requested argument on whether Wu could "purposely and intentionally cause himself to be in a medical state where then he cannot be tried." In the meantime, the trial court ordered that Wu receive an immediate medical examination.
When the parties reconvened later that afternoon (without Wu present), Wu's attorney objected to proceeding in Wu's absence and argued that there was insufficient information for the trial court to determine that Wu's absence from the courtroom was voluntary. In response, the prosecutor argued that the court had the discretion to proceed in Wu's absence. The court noted that Wu had said several times he did not want to be present for trial, and he was "intentionally weakening his condition so that he ostensibly will have some excuse for not being here, even though he clearly stated on the record he doesn't want to be here for his trial."
The trial court thereafter questioned the jail physician who had tried to examine Wu. The physician stated that there was "a combination of psychiatric and medical problems," and he reported that Wu had been transferred to the psychiatric area of the jail's medical unit. Wu would not agree to be examined, and he refused to have his vital signs taken. The physician said that Wu's behavior was consistent with two previous refusals to eat and that "we're back in the same situation that he won't tell us why he's not doing this and all we can do is monitor him." As for whether Wu suffered from a psychological condition, the physician stated, "Whatever the reason is that he's not eating appears to be psychiatric. I can't see any other reason why he would stop eating." The physician recommended that a psychiatrist examine Wu, and Wu's attorney renewed his request that the court order such an evaluation. The trial court denied the request and found that Wu was voluntarily absenting himself from attending the trial (§ 1043, subd. (b)(2)). Wu's attorney entered a continuing objection to trial proceedings going forward in Wu's absence, and the parties agreed to check at the beginning of each court day whether Wu was willing to attend. Since Wu was refusing visits from his attorney at the jail's medical facility where he was housed, it was agreed that a bailiff would check each day to determine whether Wu wanted to attend court proceedings.
On the morning of March 7, the bailiff reported that when asked if he wanted to attend court, Wu said he felt dizzy and then lay unresponsive for about five minutes. Wu's attorney stated his continuing objection to proceedings going forward in Wu's absence, and the trial court stated that its earlier ruling stood. The parties proceeded to discuss jury selection.
On March 10, the bailiff again reported that Wu had stated he felt dizzy and did not get ready to attend court proceedings. Wu's attorney then objected that no Cantonese translator was present when the bailiff was asking Wu if he wanted to attend court. Counsel argued that Wu should be advised in Cantonese that he had a right to attend his trial and that the trial would proceed without him if he did not appear. He stated that there "appear[ed] to be a medical issue at this time, along with psychiatric problems that we believe make him incompetent," and counsel again objected that there was insufficient evidence that Wu was voluntarily absent from trial. The trial court noted that reviewing a three-hour tape of Wu's police interview revealed that Wu "has a significant understanding of the English language." The parties proceeded to discuss a proposed jury admonition about Wu's absence from his trial. Jury selection began later that morning. Before the afternoon session began, the bailiff reported that he had asked Wu in English within the past half hour whether he (Wu) wanted to attend court, that Wu appeared to understand the bailiff, and that Wu "verbally said, 'No,' and made no further attempt to communicate or get ready for court."
The next morning, the bailiff again reported that when he checked on Wu at the jail, Wu said he did not want to attend court and remained motionless. Jury selection continued. That afternoon, outside the presence of prospective jurors, Wu's attorney again objected to the procedure by which Wu was "supposedly waiving his right to be present," and he argued that Wu had "an objection under the due process clause, the right to a trial under the Fourth Amendment, Sixth Amendment and Fourteenth Amendment of the United States Constitution."
Later that same afternoon, the parties met in the trial court's chambers to speak with the deputy who went to check on Wu. The deputy said he checked on Wu at the jail around 1:33 p.m., asked him in English whether he wanted to attend court that afternoon, at which point Wu said in English that he did not and that he was dizzy. Wu's attorney stated that he had the same objection to the process. Jury selection then continued.
A similar scene unfolded the next morning. The bailiff reported that he visited Wu at the jail, asked Wu in English whether he wanted to attend court, and Wu replied in English that he could not attend because he was feeling dizzy. Wu's attorney again stated his continuing objection to proceeding in Wu's absence, and he stated there were additional grounds for the court to suspend proceedings under section 1368 because a psychiatrist who had spoken to Wu believed that Wu was currently incompetent to stand trial and unable to assist counsel with his defense. Counsel represented that he expected to have a report the following morning. That afternoon, the bailiff again reported that Wu had again told him that he did not want to attend court because he was dizzy. Jury selection continued.
The bailiff again reported the following morning (Thursday, March 13) that Wu said he did not want to attend court that day. Wu's attorney entered his continuing objection and then submitted a one-page letter from a psychiatrist who opined, within a reasonable degree of medical certainty, that Wu was not competent to stand trial. According to the letter, Wu was "largely not cooperative" with the psychiatrist but did "speak about various beliefs that appeared to be based on delusions, such as medication coming through the vents that was negatively impacting his health, that his heart was moving down in his body, and a variety of injustices perpetrated by medical personnel." Wu reported that he was not cooperating with his attorney because of these delusional beliefs, and he likewise did not cooperate with the psychiatrist, who stated in his letter that Wu's "underlying diagnosis and cause of these bizarre thoughts" was unclear. Wu's counsel stated that Wu was on a continued hunger strike, was "speaking gibberish," and that he was not in "the state of mind of someone who can assist counsel." The trial court rejected counsel's argument that Wu's hunger strike constituted substantially new circumstances, stating it was the court's recollection that "Mr. Wu has gone on many hunger strikes" and that Wu "was doing this [staging hunger strikes] to manipulate the legal system," not because of "any mental condition he had. He knowingly, willingly, intentionally went on these hunger strikes in order to try to get something from the system. In other words, he was manipulating the system. That's my recollection of Dr. Novak's conclusion." After hearing argument from the parties, the trial court took the matter under submission to allow time to review the psychiatrist's letter. Although the parties discussed other legal matters with the court, it does not appear that the court ruled on the renewed request to hold a competency hearing. At this point, a jury had been selected but the parties had not yet delivered their opening statements.
The next day court was in session (Tuesday, March 18), Wu's attorney reported that Wu had been admitted to San Francisco General Hospital and argued that Wu did not have the capacity to waive his appearance. Counsel presented the court with a letter from the jail's medical director stating that Wu had been committed to General Hospital under Welfare and Institutions Code section 5150 the previous Friday for a grave disability. According to the jail's medical director, "a team consisting of 3 physicians, including 2 psychiatrists, evaluated [Wu] and concluded that he lacks the capacity to make an informed decision to refuse life-sustaining food and fluid. They will be putting forward a medical probate petition to allow IV hydration and any other medical interventions that may be necessary if Mr. Wu continues to refuse to eat." Wu's attorney argued that this newly received information provided a substantial basis for the trial court to suspend proceedings and to have Wu's competency evaluated under section 1368. The prosecutor disagreed. He characterized as "a joke" the psychiatrist's letter opining that Wu was incompetent to stand trial because it was "ludicrous" that the psychiatrist had not evaluated Dr. Novak's 2012 report on Wu's competency. He argued that there were no significant changes since the previous report and that nothing cast a doubt on Dr. Novak's conclusion that Wu suffered from a personality disorder as opposed to a mental disorder. The trial court denied the request to suspend court proceedings and declined to have Wu evaluated under section 1368, stating that "Mr. Wu's conduct unfortunately has not changed. I believe from the reports and from his conduct he is manipulating the system, as noted by Dr. Novak."
The prosecutor and Wu's attorney presented their opening statements later that morning. Before the afternoon session began, Wu's attorney reported that Wu was in a hearing under Riese v. St. Mary's Hospital & Medical Center (1987) 209 Cal.App.3d 1303 (Riese hearing) where it would be decided whether to forcibly medicate Wu for a mental illness. He again argued that Wu was not voluntarily absent from trial and that he was not competent to proceed with trial. The trial court's ruling stood, the jury was called into the courtroom, and the prosecution presented its first witness.
At the separate Riese hearing, a different judge adjudged Wu gravely disabled under Welfare and Institutions Code section 5150. A judge also granted a request for a "Medical Probate," and Wu was transferred to "inpatient medical service" so that he could be treated for his "starvation ketosis, which if not corrected, could cause him grave damage to multiple organ systems of his body." He also was started on antipsychotic and antidepressant medication.
As respondent's counsel correctly noted at oral argument, it does not appear that the trial court was presented with the records from the separate proceedings regarding Wu's mental condition. Instead, Wu's treating psychiatrist submitted a declaration summarizing the proceedings. There apparently was no dispute below that Wu was determined to be gravely disabled by a different trial court, and respondent's counsel acknowledged at argument that this fact is not disputed on appeal. On May 21, 2015, this court granted Wu's unopposed motion for judicial notice of the petition to authorize medical treatment for Wu as well as the March 21, 2014 order authorizing such treatment and finding Wu unable to give informed consent about his medical treatment. --------
Witnesses testified the following morning at Wu's murder trial. After the lunch recess, Wu's attorney filed a medical report and declaration in support of Wu's motion to initiate proceedings under section 1368. Dr. Katrina Peters, a psychiatrist who had treated Wu since he was admitted to General Hospital, provided information about the separate proceedings regarding Wu's health, and she attested that Wu continued to refuse food and expressed delusional beliefs that medication was being pumped into the air in his room. The psychiatrist further attested that there had been a change in Wu's mental state since 2012, and she opined that Wu was currently incompetent to stand trial because he suffered a mental disorder that "not only makes him incompetent to make decisions about his medical and psychiatric treatment, but causes him to be incapable of assisting in his defense or cooperating with counsel, and therefore incompetent to stand trial at this time." The accompanying medical report acknowledged that Wu likely had a preexisting personality disorder but concluded that his current presentation went "beyond" the criteria for such a disorder.
Wu's attorney objected that Wu had not been present at trial, in violation of his constitutional rights, and he also objected that Wu had not been asked if he was voluntarily absent that morning and that "given his current mental status and inability to assist counsel and his incompetence to make any rational judgment . . . , he's not capable of even voluntarily determining whether or not to come to court." The prosecutor argued that a difference of opinion between Dr. Novak and Wu's current treating psychiatrist was insufficient to cast a serious doubt on Dr. Novak's previous findings, and he argued that there was "no evidence" to show the current psychiatrist had read Dr. Novak's previous report. According to the prosecutor, Wu was "refusing to go to trial" and was "doing what he can to prevent this trial from going forward." Wu's attorney countered that he had presented sufficient evidence to initiate proceedings to determine whether Wu presently was competent to stand trial.
The trial court denied the request to initiate a competency hearing. Five days later, on March 24, 2014, Wu filed a petition for writ of mandate in this court and sought a stay of trial proceedings. (Wu v. Superior Court, A141347.) This court denied the petition the same day, stating in the order that extraordinary writs do not issue once trial has begun absent certain extraordinary circumstances. (E.g., People v. Superior Court (Douglass) (1979) 24 Cal.3d 428, 431, fn. 2; Magee v. Superior Court (1973) 8 Cal.3d 949, 953-954.)
In the meantime, trial proceeded. Wu's attorney continued to object to the trial proceeding in Wu's absence with an inadequate showing of voluntariness, in violation of Wu's constitutional rights. The prosecution rested on March 21, and the defense began calling witnesses. On March 24, Wu's attorney informed the trial court that Wu was still at General Hospital and that a psychiatric team planned to meet that morning to discuss Wu's response to his psychotropic medication. The next day, the attorney reported that he had received a text message from Wu's treating physician stating that Wu continued to be fed through a tube, that there was no change in his mental status, and that he was still considered incompetent to stand trial. The trial court again refused to continue trial. The defense rested later that day after presenting one additional witness.
The following day (March 26), Wu's attorney reported that another attorney in the public defender's office had visited Wu and reported that Wu was still being forcibly fed through a tube in his nose and that medical staff wanted to stabilize him before giving him a full dose of psychotropic medication in the hopes that medication would enable Wu to rationally assist counsel. Wu's attorney asked the trial court to permit testimony from medical personnel who believed Wu was incompetent to stand trial, but the trial court did not allow it. Later that morning, the trial court instructed the jury, the attorneys then gave their closing arguments, and jurors began their deliberations that afternoon.
The jury reached its verdict on April 2, 2014, and convicted Wu of two counts of first degree murder, found true allegations as to each count that Wu personally and intentionally discharged a firearm in the commission of the crimes (§ 12022.53, subd. (d)), and also found true a multiple-murder special circumstance (§ 190.2, subd. (a)(3)). Wu was not present when the verdicts were read, and Wu's attorney objected yet again to the refusal to initiate competency proceedings.
The Post-verdict Proceedings.
On the same day the jury reached its verdict, Wu was discharged from General Hospital with a feeding tube still in place. He began eating on his own on April 19 but continued to refuse to see his attorney.
The trial court referred the matter to the probation department to prepare a presentence report. When a probation officer tried to interview Wu, Wu twice refused to be interviewed and told the officer that he did not understand the purpose of a presentence report and that he believed he was being treated unfairly by the attorneys and the court. The probation department filed a report recommending that the trial court "inform the defendant of the importance of interviewing for the pre-sentence report in order for the Probation Department to provide a [thorough] and comprehensive report to the Court."
Wu thereafter filed a motion for a new trial, arguing that the trial court had erred in allowing the trial to proceed after a renewed doubt had been raised as to Wu's competency and that Wu was not voluntarily absent from his trial. Wu's attorney also filed a supplemental report from Dr. Peters dated June 10 that detailed her treatment of Wu over the previous three months, and she stated her opinion that Wu had suffered a substantial change in his psychiatric presentation since Dr. Novak's 2012 report that rendered him incompetent to stand trial.
Wu was present at his sentencing on June 11, 2014, and he stated at the beginning of the hearing through an interpreter, "Forget about the retrial. Just sentence me." He also interrupted during his attorney's argument regarding the motion for a new trial. The trial court denied Wu's request to suspend criminal proceedings, the request for a renewed competency hearing, and the request for a new trial. When the trial court asked Wu if he wanted to be heard before sentencing, Wu responded in English, "Fuck you." The court sentenced Wu to life without the possibility of parole on the first count of murder and 25 years to life in state prison on the second count of murder, to run consecutively, followed by additional and consecutive sentences of 25 years to life on both counts based on his personal use of a firearm in the murders.
II.
DISCUSSION
A. Wu Was Entitled to a Second Competency Hearing.
Wu argues that his due process rights were violated because the trial court refused to hold a second competency hearing. We agree. Even though the court could reasonably have viewed much of Wu's conduct to be manipulative, by the time the trial in March 2014 was completed, almost two years had transpired since Dr. Novak's report, and ample evidence had been presented of a substantial change of circumstances warranting a second competency hearing.
We begin with an overview of the applicable law. "It has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial." (Drope v. Missouri (1975) 420 U.S. 162, 171.) "The due process clause of the Fourteenth Amendment to the United States Constitution and section 1367 prohibit the state from trying or convicting a criminal defendant while he is mentally incompetent." (People v. Kaplan (2007) 149 Cal.App.4th 372, 382 (Kaplan).) Under state law, a defendant who, as a result of mental disorder or developmental disability, is "unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner," is mentally incompetent to be tried. (§ 1367, subd. (a).) "When the accused presents substantial evidence of incompetence, due process requires that the trial court conduct a full competency hearing. [Citations.] Evidence is 'substantial' if it raises a reasonable doubt about the defendant's competence to stand trial. [Citation.] The court's duty to conduct a competency hearing arises when such evidence is presented at any time 'prior to judgment.' (§ 1368; [citations].)" (Jones, supra, 53 Cal.3d at pp. 1152-1153.) It is a defendant's burden to prove his or her incompetency by a preponderance of the evidence. (Kaplan, supra, at p. 383.)
"When a competency hearing has already been held and the defendant has been found competent to stand trial, however, a trial court need not suspend proceedings to conduct a second competency hearing unless it 'is presented with a substantial change of circumstances or with new evidence' casting a serious doubt on the validity of that finding." (Jones, supra, 53 Cal.3d at p. 1153, italics added; see also Drope v. Missouri, supra, 420 U.S. at p. 181 ["Even when a defendant is competent at the commencement of his trial, a trial court must always be alert to circumstances suggesting a change that would render the accused unable to meet the standards of competence to stand trial."].) "We apply a deferential standard of review to a trial court's ruling concerning whether another competency hearing must be held. [Citation.] We review such a determination for substantial evidence in support of it." (People v. Huggins (2006) 38 Cal.4th 175, 220 (Huggins).) "[U]pon the presentation of substantial evidence showing a substantial change of circumstances or new evidence giving rise to a serious doubt about the validity of the original competency finding, regardless of the presence of conflicting evidence, the trial court must hold a subsequent competency hearing. This substantial evidence standard of proof is the same standard applied by the trial court in determining whether an original competency hearing should be held." (Kaplan, supra, 149 Cal.App.4th at p. 385, italics added, see also id. at pp. 376, 384.) In our view, there was abundant evidence that there had been a substantial change of circumstances in the nearly two years between Dr. Novak's conclusion that Wu was competent to stand trial and the different conclusion reached by Dr. Peters, the psychiatrist who treated Wu after he was involuntarily admitted to General Hospital.
Respondent acknowledges that, if the trial court had not previously determined Wu to be competent to stand trial in 2012, the information presented in March 2014 would have been sufficient to raise a reasonable doubt about Wu's competency, thus triggering the duty to initiate a competency hearing. According to respondent, a second hearing was not required, however, because Dr. Peters assessed Wu as engaging in "unchanged behavior" since 2012. Respondent devotes much of its brief in defending the 2012 determination that Wu was competent to stand trial, and points out that there was little evidence casting a serious doubt on the validity of that determination at the time it was made. (Jones, supra, 53 Cal.3d. at p. 1153.) But we must also separately ask whether the trial court was presented with a substantial change of circumstances since that original finding. (Ibid.) In our view, such a change was presented by the evidence that Wu was hospitalized, adjudicated to be gravely disabled, authorized to be forcibly fed and involuntarily medicated, and diagnosed by a psychiatrist to be incompetent to stand trial.
The cases upon which respondent relies are distinguishable. In Huggins, supra, 38 Cal.4th 175, a defendant in a capital murder case was found competent before the guilt phase of the trial and the first penalty phase, and there was a three-year gap before the second penalty phase. (Id. at pp. 218-219.) Before the second penalty phase, the trial court conducted an "informal inquiry" into defendant's competency to proceed and heard testimony from a psychiatrist who testified that defendant was incompetent to stand trial, but the psychiatrist also acknowledged that there had been no change to defendant's psychotic state and that defendant "appeared to have no cognitive difficulties, no failures of memory, and no difficulties in explaining his conduct, and that he appeared to understand that he was on trial and the nature of a trial." (Id. at p. 219.) The defendant argued on appeal that a more formal competency hearing had been required because of the substantial period of time that had passed between the two trial phases and because trial counsel had expressed concern that his mental health had deteriorated, but the court concluded that the psychiatrist showed no more than a disagreement with the original competency finding. (Id. at pp. 218, 220.) Here, by contrast, defense counsel did more than "express[] concern" about the deterioration of Wu's mental health (cf. id. at p. 218); he provided substantial evidence that it in fact had deteriorated.
This case might be comparable to Huggins had the trial court directed Dr. Novak to reexamine Wu and to update his two-year-old report after Wu's attorney raised a renewed doubt as to Wu's competency. (E.g., Drope v. Missouri, supra, 420 U.S. at pp. 181-182 [although the possibility that ordering a psychiatric evaluation "might have aborted the trial is a hard reality, but we cannot fail to note that such a result might have been avoided by prompt psychiatric examination before trial, when it was sought by [defendant]"].) Such an informal inquiry would have provided more insight into Wu's current mental condition (Huggins, supra, 38 Cal.4th at p. 219), and respondent would not be forced to rely so heavily in this appeal on two-year-old events when defending the trial court's failure to hold a renewed hearing. But there was no such updated report, and we are left to review only the evidence that was presented and that indicates a substantial change of circumstances since Dr. Novak's 2012 report.
Respondent also compares this case to People v. Murrell (1987) 196 Cal.App.3d 822, where a jury found the defendant incompetent, the defendant was committed to a state hospital, and the hospital later certified that defendant was competent to stand trial. (Id. at p. 825.) Defendant challenged the certification of competence, but the trial court determined that defendant was competent following a court trial. (Ibid.) The defendant then demanded a second jury trial on the competency issue and moved to reopen the hearing on the certification of competence, and the trial court again found defendant competent to stand trial following a three-day court trial, and reinstated criminal proceedings. (Ibid.) In rejecting the defendant's argument that he was entitled to a second jury trial, as opposed to a court trial, upon his return from the state hospital, the Murrell court observed, "In effect, defendant asserts that if at any time during the criminal proceedings the defendant presents psychiatric testimony that he is incompetent, all criminal proceedings must cease and a jury trial on competence commence, even though the defendant has been previously found competent at a contested hearing. We do not accept that interpretation of the statute." (Id. at p. 827.)
In contrast to Murrell, here there was a two-year gap between conflicting psychiatric opinions, and Wu was hospitalized and declared to be gravely disabled by a different court. Respondent suggests that the facts here are analogous to Murrell because Wu did nothing more than present contradicting psychiatric testimony. But, in fact, Wu's attorney presented a psychiatric opinion along with significant other evidence of changed circumstances, such as Wu's hospitalization and a judicial determination of having a grave disability.
While we agree with Murrell that a new competency hearing is not required every time the trial court is presented with a different opinion about a defendant's mental state, it is equally true that a trial court may not continue to rely on a years-old competency evaluation when evidence of a substantial change of circumstances is presented. To be sure, the trial court faced serious challenges having to manage Wu's disruptive behavior in March 2014, and Wu's refusal to eat and his courtroom outbursts were consistent with the types of manipulative behaviors that Dr. Novak concluded were the result of a personality disorder and not a mental disorder, and which Dr. Novak predicted would recur if Wu did not get his way. But once the trial court was presented with evidence that Wu had been hospitalized, adjudicated to be gravely disabled, authorized to be forcibly fed and involuntarily medicated, and diagnosed by a treating psychiatrist to be incompetent to stand trial, the trial court could not deny a second competency hearing on the basis that circumstances remained unchanged since Dr. Novak's 2012 report.
We find Kaplan, supra, 149 Cal.App.4th 372, instructive. There, a doubt was raised about the defendant's competency before the preliminary hearing, and the trial court determined in February 2003 based on two reports that defendant was competent to stand trial. (Id. at pp. 377-378.) After jury voir dire but before opening statements, the trial court was told that the defendant had jumped from the jail's second floor and was in the hospital. (Id. at p. 379.) Defense counsel expressed doubts as to the defendant's competence, the two doctors who had previously examined the defendant were appointed to again examine him, and they came to different conclusions about his competency in reports they prepared in November 2003. (Id. at pp. 379-381.) The trial court concluded that the defendant was competent and denied defense counsel's request to suspend proceedings, and a jury convicted the defendant as charged. (Id. at pp. 381-382.) The appellate court reversed, concluding that the single November 2003 report of the defendant's incompetence "constituted the requisite substantial evidence as it showed a substantial change of circumstances had occurred." (Id. at p. 386.) As such, the evidence triggered the need for another competency hearing, and the trial court erred by not holding one. (Id. at p. 387.) Respondent argues that Kaplan and People v. Melissakis (1976) 56 Cal.App.3d 52, another case upon which Wu relies, are distinguishable because they involved situations where doctors who previously had found a defendant competent later changed their opinions. This argument is inapt since the trial court here never asked Dr. Novak to reexamine Wu, even informally.
Because we conclude that the trial court erred by refusing to hold a second competency hearing, it is unnecessary to decide whether, as Wu argues, it was constitutionally impermissible to try him in his absence. (Drope v. Missouri, supra, 420 U.S. at p. 182 [resolution of absence from trial unnecessary after court concluded it was error not to hold competency hearing, but court noted that "what we have already said [about the competency issue] makes it clear that there was an insufficient inquiry to afford a basis for deciding the issue of waiver [of the right to be present]"].) We also need not examine whether the court erred in striking Dr. Watt's original evaluation of Wu.
B. The Trial Court Shall Determine on Remand Whether It Is Possible to Hold a Retroactive Competency Hearing.
We next turn to the appropriate remedy. A judgment of conviction must be reversed where a trial court fails to hold a competency hearing in the face of substantial evidence of the defendant's incompetency. (People v. Young (2005) 34 Cal.4th 1149, 1216-1217.) "Under section 1368 of the Penal Code the trial court has no power to proceed with the trial once a doubt arises as to the sanity of the defendant. In trying defendant without first determining at a hearing his competence to stand trial, the court both denie[s] to defendant a substantial right [citations] and pronounce[s] judgment on him without jurisdiction to do so. In such cases the error is per se prejudicial." (People v. Pennington (1967) 66 Cal.2d 508, 521.) The state is free to retry the defendant, "assuming, of course, that at the time of such trial he is competent to be tried." (Drope v. Missouri, supra, 420 U.S. at p. 183.)
Respondent argues that the appropriate remedy is to hold a "retrospective competency hearing." (E.g., People v. Ary (2004) 118 Cal.App.4th 1016, 1025 (Ary I) ["weight of the relevant authority suggests retrospective competency hearings may, in certain circumstances, be permissible"].) Though we question whether such a hearing would lead to a determination that Wu was competent at the time of his trial in March 2014 given the repeated refusal to have Wu independently evaluated, we agree with respondent regarding the procedure on remand.
"While it is certainly the case that the trial court's error in failing to hold a competency hearing when one is warranted is not subject to harmless error review, this does not mean that the procedural due process violation can never be cured retrospectively, under appropriate circumstances . . . ." (Ary I, supra, 118 Cal App.4th at p. 1028.) "When, as occurred here, a reviewing court concludes that a trial court has violated a defendant's federal constitutional right to due process by failing to hold a hearing to assess evidence of a defendant's mental competence at the time of trial, and the case is then remanded to the trial court for a retrospective competency hearing to determine whether the procedural error can be cured, the trial court must first decide whether a retrospective determination is indeed feasible. Feasibility in this context means the availability of sufficient evidence to reliably determine the defendant's mental competence when tried earlier." (People v. Ary (2011) 51 Cal.4th 510, 520 (Ary II).)
Where a case is remanded to determine whether a retrospective competency hearing is appropriate, it is the People's burden to show that sufficient witnesses and evidence exist that can establish the defendant's mental state at the time of trial. (Ary I, supra, 118 Cal App.4th at p. 1029; Kaplan, supra, 149 Cal.App.4th at p. 390.) Assuming the People meet this burden, the burden then shifts to the defendant to prove at such a retrospective mental competency hearing that he was incompetent when tried. (Ary II, supra, 51 Cal.4th at pp. 520-521.)
"[I]t is the rare case in which a meaningful retrospective competency determination will be possible. The inherent difficulty of such a determination, of course, is that there will seldom be sufficient evidence of a defendant's mental state at the time of trial on which to base a subsequent competency determination. [Citation.] This is because a trial court's initial failure to hold a timely competency hearing is almost always rooted in a fundamental inattentiveness to the defendant's mental condition. The record in such cases will, therefore, seldom contain useful contemporaneous information regarding a defendant's mental state at the time of trial and his ability, at that time, to understand the nature of the proceedings and assist in his defense." (Ary I, supra, 118 Cal.App.4th at p. 1028; see also Drope v. Missouri, supra, 420 U.S. at p. 183 [acknowledging "inherent difficulties" of making retrospective competency determination even "under the most favorable circumstances"].) In Ary I, "extensive expert testimony" was presented at pretrial hearings on whether defendant was competent to waive his rights under Miranda v. Arizona (1966) 384 U.S. 436 and whether his confession was voluntary, and much of the same information would be relevant in a competency hearing. (Ary I at p. 1029.) The trial court on remand determined "that evidence was still available regarding defendant's mental condition when he was tried and it was therefore feasible to evaluate retrospectively defendant's mental competence at that time." (Ary II, supra, 51 Cal.4th at p. 513.)
Here, the prosecution is entitled to try and meet its burden of showing that evidence is still available about defendant's mental condition at the time he was tried, such that a retrospective hearing is appropriate. If the prosecution can make such a showing, the burden would shift to Wu to establish that he was not competent at the time he was tried. We stress, however, that Dr. Novak's 2012 report will have far less (if any) relevance at such a competency hearing, given that, as we have concluded, Wu's attorney presented substantial evidence of changed circumstances and Dr. Novak was never asked to reexamine Wu after changed circumstances had been established.
III.
DISPOSITION
The judgment is reversed, and the matter is remanded to the trial court with directions to decide whether a retrospective competency hearing should be held to determine whether Wu was competent at the time of his trial in March 2014. If the trial court decides that the prosecution has failed to carry its burden of proving that such a retrospective competency hearing should be held, Wu will be entitled to a new trial. If the trial court decides that the prosecution has carried its burden of showing that such a retrospective competency hearing should be held, the hearing shall be calendared and held. If such a hearing is held and defendant is found to have been competent at the time of trial, the trial court shall reinstate the judgment. If, after such hearing, Wu is found not to have been competent at the time of trial, Wu shall be entitled to a new trial, assuming he is currently competent to be tried.
/s/_________
Humes, P.J. We concur: /s/_________
Dondero, J. /s/_________
Banke, J.