Opinion
NOT TO BE PUBLISHED
Superior Court County No. BA296668 of Los Angeles Craig E. Veals, Judge.
Jeffrey Yanuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Margaret E. Maxwell, Deputy Attorney General, for Plaintiff and Respondent.
PERREN, J.
Adam Gordy appeals the judgment following his conviction for three counts of second degree robbery (Pen. Code, § 211), attempted second degree robbery (§§ 664/211), discharging a firearm at an occupied motor vehicle (§ 246), three counts of assault with a firearm (§ 245, subd. (a)(2)), and two counts of firearm possession by a felon (§ 12021, subd. (a)(1)). The jury also found true allegations of firearm and prior prison term enhancements, and that Gordy had suffered a prior robbery conviction which constituted a strike. He was sentenced to an aggregate prison term of 63 years. Gordy contends the trial court erred in failing to conduct a second mental competency hearing (§ 1368), ordering the use of a restraint chair, excluding evidence, and failing to sanitize evidence of his prior conviction. He also claims a section 654 violation. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
FACTS AND PROCEDURAL HISTORY
At 2:00 a.m. on October 11, 2005, victims Johnson and Horton were seated in a car when Gordy knocked on the driver's window, waived a gun at both occupants and demanded money. Johnson and Horton complied and gave Gordy their money. When the victims started to drive after Gordy as he ran away, Gordy pointed his gun at the car.
At approximately 9:20 p.m. on October 11, 2005, Gordy approached victims Vardanyan and Hasratyan who were standing outside their car. Gordy pointed a gun at them, and robbed them. When Gordy started to run away with his loot, he turned and fired several shots in the direction of the victims. Gordy got into a vehicle driven by his accomplice and codefendant Ebony Smith. As Smith and Gordy were driving away, Gordy fired more shots at Vardanyan and Hasratyan as they followed in their car.
On November 12, 2005, Ebony Smith flagged down a car driven by victim Valverde. Smith said she needed gas money and Valverde took out his wallet. Smith grabbed for the wallet and struggled with Valverde. Smith pulled out a gun and Gordy emerged from the bushes. Valverde released his wallet and started to drive away. Gordy fired several shots at Valverde's car.
Gordy provided an alibi defense as to the October offenses, and testified on his own behalf. He denied involvement in the October offenses and testified that he went to the scene of the November offenses looking for Ebony Smith, but did not fire any shots or otherwise participate in the offenses.
Gordy was charged with four counts of second degree robbery (§ 211), attempted robbery (§ 664/211), shooting at an occupied motor vehicle (§ 246), three counts of assault with a firearm (§ 245, subd. (a)(2)), and two counts of possession of a firearm by a felon (§ 12021, subd. (a)(1)). It was alleged that he personally used a firearm in the robberies, attempted robbery and assaults (§ 12022.53, subd. (b)), and personally discharged a firearm in two of the robberies and the attempted robbery (§ 12022.53, subd. (c)). It was also alleged that he had a prior strike conviction, served a prior prison term, and served a prison term for a violent felony. (§§ 667, subd. (a)(1), 667, subds. (b)-(i), 1170.12, subds. (a)-(d), 667.5, subd. (a).)
In May 2007, the trial court declared a doubt concerning Gordy's competence to stand trial and adjourned the proceedings pending a psychiatric evaluation. Thereafter, a total of five psychiatrists examined Gordy. In December 2007, the trial court found Gordy competent to stand trial.
A jury convicted Gordy of all the charged offenses except the Valverde robbery. He was acquitted of that offense. The jury found true allegations of all the enhancements. Gordy was sentenced to 63 years in state prison.
DISCUSSION
Second Competency Hearing not Required
Gordy contends the trial court erred in failing to order a second competency hearing. He argues that events occurring after he was initially declared competent created new doubt over his competence to stand trial. We disagree.
A person cannot be tried while mentally incompetent and is deemed incompetent "if, as a result of a mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner." (§ 1367, subd. (a).) Incompetency requires the lack of a "'... "'sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding--and... a rational as well as a factual understanding of the proceedings against him.'"...'" (People v. Lewis (2008) 43 Cal.4th 415, 524, quoting Dusky v. United States (1960) 362 U.S. 402, 402.)
Due process requires that the trial court conduct a competency hearing when it is presented with substantial evidence of incompetence. (People v. Lewis, supra, 43 Cal.4th at p. 524.) Evidence is "substantial" if it raises a "'... reasonable or bona fide doubt concerning the defendant's competence to stand trial, ... [and may arise from] the defendant's demeanor, irrational behavior, and prior mental evaluations. [Citations.]'" (Ibid.) A "defendant must exhibit more than bizarre... behavior, strange words, or a preexisting psychiatric condition that has little bearing on the question of whether the defendant can assist his defense counsel." (People v. Ramos (2004) 34 Cal.4th 494, 508.)
An appellate court cannot appraise whether a defendant's conduct in the trial court indicates insanity, an attempt to feign insanity to delay the proceedings, or sheer temper. (People v. Marks (2003) 31 Cal.4th 197, 220.) Therefore, the decision of the trial court is given deference and will be upheld on appeal if supported by substantial evidence. (People v. Hightower (1996) 41 Cal.App.4th 1108, 1111.)
In May 2007, the trial court declared a doubt concerning Gordy's competence to stand trial and obtained reports from four psychiatrists. Two of the psychiatrists concluded that Gordy was competent to stand trial and two concluded that he was not. The trial court stated that it was prepared to find Gordy competent on the basis of those reports, but appointed a fifth psychiatrist to "break the tie." The fifth psychiatrist concluded Gordy was competent and, in December 2007, the court found Gordy to be competent to stand trial.
On April 10, 2008, the date set for jury selection, Gordy entered the courtroom in a normal fashion. In the words of the trial court, "he seemed fine, in fact, he seemed to be quite observant, looking around.... He seemed perfectly awake and aware of what was going on." But, after sitting down, Gordy "immediately placed his head forward and onto the table and hasn't really lifted it, that I have seen, over the last 20 minutes or so." The trial court referred to a transfer memorandum by the judge who conducted the 2007 competency hearing which concluded that Gordy was "feigning" and putting on "an act." The court concurred with the assessment by the prior judge. The court stated that Gordy's exaggerated physical movements were "pretend[ing], " Gordy was "listening attentively" to the court, and was engaged in a "physical manifestation as opposed to a mental one."
During jury selection on April 14, 2008, defense counsel told the court that Gordy is "heavily medicated" and "half the time he blubbers." The court repeated its observation that it was "transparent" that Gordy was feigning. The court stated that Gordy looked "completely normal" every time he entered the courtroom, but as soon as the jurors entered the courtroom, "he immediately lapsed into this almost comatose state, which is ridiculous."
During the morning court session that day, the bailiff confiscated a razor found in Gordy's possession. Later in the day, Gordy successfully smuggled another razor into the courtroom, and used it to cut his hands. Gordy was taken to the emergency room, but the trial court noted that the wounds were on the sides of his hands, not on his wrists where they might have been fatal.
The court stated that "ordinarily the court would perhaps be inclined to declare a doubt" regarding his competence, but that Gordy's behavior "is all consistent with an overall pattern of behavior on his part in order to subvert the judicial process, in order to delay this case and make it impossible for us to proceed with the trial." The court concluded that Gordy's behavior was "very calculated" and revealed that he had the capacity to understand the proceedings and assist counsel.
During trial testimony two days later, Gordy engaged in a verbal outburst including statements such as "Jesus Christ is going to bail me out" and "You guys [are] holding me against my will." During the same afternoon, however, Gordy announced that he wanted to make a Marsden motion. (People v. Marsden (1970) 2 Cal.3d 118.) In making that motion, Gordy articulated reasons for replacing counsel, argued with the court, and spoke coherently and with a clear understanding of the proceedings. Thereafter, Gordy testified on his own behalf in a coherent and responsive manner.
The trial court had an opportunity to observe Gordy throughout trial and, based on the record, substantial and credible evidence supports its finding that Gordy was able to understand the nature of the proceedings and participate in his defense. At times, Gordy's behavior was unusual and disruptive, but he remained in control of his mental faculties. Although cutting oneself with a razor cannot be ignored, all of his strange behavior occurred at approximately the same time as he made and argued Marsden motions and testified coherently regarding the charged offenses. There was no credible evidence of any inability to understand the proceedings or assist counsel.
Moreover, Gordy had gone through psychiatric examinations by multiple doctors only a few months before the incidents at issue. The unchallenged ruling that Gordy was competent to stand trial as of December 2007 must be given weight in assessing competence five months later.
Defense counsel stated that Gordy's demeanor was due to heavy medication, and that the trial court erred in not conducting a further inquiry into the medications Gordy was prescribed. When the trial court asked for information regarding his medication, however, Gordy failed to provide any medical records or any other information about Gordy's medication or its possible effects. In addition, Gordy's motion for new trial after the verdict also provided no information concerning his medication.
Manifest Need for Use of Restraint Chair
Gordy contends the trial court abused its discretion by restraining him during trial through the use of a "restraint chair." We disagree.
A defendant cannot be subjected to physical restraints while in the jury's presence unless there is a showing of a "manifest need" for the restraints. (People v. Duran (1976) 16 Cal.3d 282, 290-291; see also People v. Mar (2002) 28 Cal.4th 1201, 1216-1217.) A manifest need may be shown by unruliness, an announced intention to escape, or "nonconforming conduct or planned nonconforming conduct which disrupts or would disrupt the judicial process if unrestrained." (People v. Cox (1991) 53 Cal.3d 618, 651, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; Duran, at p. 291.) We review the trial court's order to use restraints for abuse of discretion. (Mar, at p. 1217; Duran, at p. 293, fn. 12.)
Gordy concedes that there was a showing of manifest need for restraints based on his use of a razor blade to cut himself, but claims a restraint chair was excessive and that leg or wrist restraints hidden from the view of jurors would have been sufficient. We conclude that the trial court's use of a restraint chair was not an abuse of discretion.
After the hand-cutting incident, the trial court indicated that it had considered other forms of restraint but found the restraint chair to be necessary to restrain Gordy's hands in order to prevent a repeat of the razor blade incident. Although Gordy later asked to return to his normal chair, there was no objection in the trial court to using a restraint chair. Failure to object bars Gordy's claim on appeal that less obtrusive restraints should have been used. (People v. Marks, supra, 31 Cal.4th at p. 224; People v. Duran, supra, 16 Cal.3d at p. 289.)
Moreover, the trial court described the restraint chair as looking like a "wheelchair, but narrower, " and with a "back, and it has a strap that holds him in." When asked, two witnesses stated that Gordy appeared to be in a wheelchair. The record, however, does not support Gordy's assertion on appeal that wrist and leg restraints would have been less visible to the jury or less likely to be viewed as a restraint designed to prevent violence in the courtroom.
No Error in Exclusion of Evidence
Gordy contends that the trial court erroneously sustained prosecution hearsay objections to his testimony regarding statements made to him by Ebony Smith. The statements were made during two cell phone calls at the time of the November 12, 2005, offenses. Gordy argues that the statements were admissible under the state of mind exception to the hearsay rule (Evid. Code, § 1250, subd. (a)), and as evidence corroborating his own testimony regarding his state of mind. We disagree.
Ebony Smith was a codefendant in Gordy's trial on those offenses.
Evidence of a statement of a declarant's then existing state of mind is not made inadmissible by the hearsay rule if it is offered to prove the declarant's state of mind at a relevant time or to explain the acts or conduct of the declarant. (Evid. Code, § 1250.) In addition, statements by Ebony Smith might be construed as non-hearsay evidence to show the effect the statements had on Gordy's state of mind and explain his conduct in response. (People v. Duran, supra, 16 Cal.3d at p. 295; People v. Ortiz (1995) 38 Cal.App.4th 377, 389.) We review the trial court's admission of evidence for abuse of discretion, and uphold a trial court's ruling unless it is arbitrary or capricious. (People v. Brown (2003) 31 Cal.4th 518, 547; People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Gordy has forfeited his claim because his theories of admissibility were not raised in the trial court. Issues relating to admissibility of evidence may not be reviewed on appeal unless an objection or claim for admission was made in the trial court on the ground urged on appeal. (People v. Hill (1992) 3 Cal.4th 959, 989, disapproved on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13; see also People v. Thornton (2007) 41 Cal.4th 391, 443.)
Moreover, on its merits, the trial court did not abuse its discretion. Gordy testified that he went to a motel with Smith and fell asleep. Smith left their room and later called Gordy on a cell phone. Gordy testified that Smith told him where she was and that she was frightened. When asked what frightened her, the trial court sustained a hearsay objection to the question. Gordy then testified that, as a result of what Smith told him, he left the motel to "go see what's going on." Gordy telephoned Smith from his car, and Smith told him "there he goes" referring to a man, and that the man was in a "car coming fast" in her direction. At approximately the same time, Gordy reached Smith's location and saw the car coming towards Smith. Gordy testified that Valverde, the victim of the November 12 offenses, was driving the car. Gordy testified that Valverde started screaming at Ebony and that he heard gunshots. The trial court then sustained hearsay objections by the prosecutor to questions asking Gordy whether there was an issue between Smith and the man about money.
The statements by Smith during the two cell phone calls which were excluded by the trial court recited events and, perhaps, reflected Smith's state of mind, but did not pertain to Gordy's state of mind. Moreover, the statements are relevant only if Smith and Gordy acted as Gordy claimed and, therefore, were necessarily offered for their truth. They were not admissible under Evidence Code section 1250, subdivision (a).
Gordy also argues that the statements are admissible to explain why Gordy was on the street at the scene of the offenses, namely to help Smith who was in distress, and not to commit a crime. Evidence of a declarant's statement is not hearsay if it relates facts other than declarant's state of mind and is offered to circumstantially prove the declarant's state of mind. (People v. Ortiz, supra, 38 Cal.App.4th at p. 389.)
The only excluded evidence that may have related to Gordy's state of mind was Smith's response to the question asking what had frightened her. The excluded testimony regarding whether Smith and Valverde had an "issue" regarding money was irrelevant to her state of mind and occurred after the offenses had occurred. Although it is possible Smith's reason why she was frightened might have been relevant to Gordy's state of mind, sufficient other testimony that Smith was frightened was admitted to fully present the issue to the jury.
Furthermore, any error in excluding the evidence was harmless. It is not reasonably probable that the jury would have reached a more favorable verdict had the evidence been admitted. (People v. Watson (1956) 46 Cal.2d 818, 836.) Gordy's testimony concerning his conversation with Smith before he left the motel room fairly and adequately presented his defense that he went to the crime scene to help Smith. And Gordy was acquitted of the robbery of Valverde.
No Abuse of Discretion Regarding Admission of Prior Conviction Evidence
Gordy contends the trial court abused its discretion in admitting evidence of a prior robbery conviction. He claims the trial court should have "sanitized" the conviction so the jury would not know that it was for robbery. We disagree.
The credibility of a defendant who testifies may be impeached by evidence of a prior felony conviction involving moral turpitude. (People v. Castro (1985) 38 Cal.3d 301, 306.) In exercising its discretion, the trial court should consider whether the prior conviction reflects on the defendant's honesty and integrity, whether it is near or remote in time, whether it was suffered for the same or substantially similar conduct as the charged offense, and, in appropriate cases, what effect admission would have on the defendant's decision to testify. (Id. at p. 307.) Gordy's prior robbery conviction was admissible because robbery is an offense involving moral turpitude (People v. Mendoza (2000) 78 Cal.App.4th 918, 925), the conviction was probative as to Gordy's credibility and veracity, and, as a 2003 conviction, was not remote in time.
Gordy focuses on the fact that his prior conviction was for the same crime of robbery as certain of the charged offenses. When a trial court deems evidence of a prior conviction similar to the charged offense admissible, it has discretion to "sanitize" the evidence to avoid undue prejudice to the defendant. (People v. Castro, supra, 38 Cal.3d at pp. 305-306, 319.) Gordy argues that the trial court should have sanitized his prior conviction to eliminate any reference to the nature of the crime.
Similarity of the offenses is just one factor a trial court considers in exercising its discretion, and cases have permitted impeachment with prior convictions identical to the charged offense. (See People v. Sandoval (1992) 4 Cal.4th 155, 177-178; People v. Johnson (1991) 233 Cal.App.3d 425, 458-459; People v. Muldrow (1988) 202 Cal.App.3d 636, 647.) Here, there is no likelihood of prejudice based on the identification of Gordy's prior felony as a robbery. Gordy otherwise admitted having a prior conviction for a serious felony, and that he had served a prior prison term. Although Gordy argues that "sanitizing" the conviction would have reduced any prejudice, the jury might have drawn the contrary inference and speculated on the severity of his criminal record. (See People v. Massey (1987) 192 Cal.App.3d 819, 825.)
No Section 654 Error
Gordy was convicted of five offenses against Hasratyan and Vardanyan--attempted robbery of Hasratyan, robbery of Vardanyan, assaults with a firearm of both men, and discharging a firearm at a vehicle occupied by both men. Gordy was sentenced to prison terms for each offense, but the trial court stayed the two assault sentences pursuant to section 654. Gordy contends the sentence for discharging a firearm at an occupied vehicle also should have been stayed pursuant to section 654. We disagree and conclude that substantial evidence supports the trial court's implied determination that Gordy entertained one objective during the robbery/attempted robbery and a separate objective when he shot at the victims from his car. Accordingly, section 654 does not bar separate punishment for the discharging a firearm at an occupied vehicle offense.
Section 654 prohibits punishment for more than one offense arising from the same act or from an indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1216.) Whether a course of conduct is divisible depends on the intent and objective of the actor. (Id. at p. 1208.) If all the offenses were incident to one objective, the defendant may only be punished for one offense. (Ibid.) If the defendant had multiple independent criminal objectives, he may be punished for each offense. When, as here, the trial court does not state any reasons for its section 654 ruling, we will deem the court to have made an implied finding that the offenses had a separate objective. (See People v. Blake (1998) 68 Cal.App.4th 509, 512.) Application of section 654 is a question of fact for the trial court, whose finding will be upheld if supported by substantial evidence. (People v. Tarris (2009) 180 Cal.App.4th 612, 626-627.)
The evidence shows that Gordy approached Hasratyan and Vardanyan on foot when they were standing near their car. Gordy pointed a gun at them and demanded money. Vardanyan gave Gordy money and other property. Hasratyan did not. While Gordy was looking for more loot inside their car, Hasratyan and Vardanyan attempted to scare him off. Gordy fired several shots at the two men as he ran away. Gordy then got into a car driven by an accomplice and drove off. Hasratyan and Vardanyan followed Gordy in their car for a period of time but lost sight of Gordy. During the drive, Gordy fired shots from his car at the vehicle occupied by Hasratyan and Verdanyan.
Gordy argues that his act of firing a gun at a pursuing vehicle was committed to facilitate his escape and, therefore, incident to the robbery and attempted robbery. (See People v. Donohoe (1962) 200 Cal.App.2d 17, 31 [force used to commit a robbery incident to the objective of the robbery].) The trial court agreed to the extent of staying the sentences for the assaults. The trial court reasonably concluded, however, that Gordy entertained a separate and distinct criminal objective after he drove away in his accomplice's car, and fired shots at the vehicle occupied by the victims. At that point, Gordy had completed the acts necessary to enable him to carry out the robbery and attempted robbery. Gordy had the choice of driving away or of firing shots at the victims who were following him. In choosing the latter, he committed an offense which, although related to the robbery, introduced a new set of risks to the victims and the surrounding neighborhood. Two offenses divisible in time and presenting separate risks may be punished separately. (People v. Beamon (1973)8 Cal.3d 625, 639, fn 11.) In such cases, a defendant has the opportunity to reflect and to renew his or her intent before committing the next offense which aggravates the risks to the victims and the public. (People v. Gaio (2000) 81 Cal.App.4th 919, 935; see also People v. Foster (1988) 201 Cal.App.3d 20, 27-28.) Separate punishment under these circumstances serves the fundamental purpose of section 654 to ensure that a defendant's punishment is commensurate with his culpability. (People v. Latimer, supra, 5 Cal.4th at p. 1211.)
As a general rule, robbery is deemed to continue until the perpetrator reaches a place of temporary safety. (See People v. Cavitt (2004) 33 Cal.4th 187, 208.) But, no judicial authority prevents separate punishment for offenses during an escape which do not have the same objective as the underlying robbery. Also, in this case the trial court reasonably could have inferred that Gordy was sufficiently secure when he got into his car and drove away as to constitute a place of temporary safety. (People v. Carter (1993) 19 Cal.App.4th 1236, 1251 [whether a robber has reached a place of safety is a question of fact].)
Moreover, the temporary safety rule "cannot mean every act a robber commits before making his getaway is incidental to the robbery." (In re Jesse F. (1982) 137 Cal.App.3d 164, 171.) Consistent with the fundamental purpose of section 654, if a defendant commits an additional crime, even if for the purpose of escaping, he or she is more culpable and should be more severely punished than a defendant who walks away from a completed robbery without inflicting further harm. (Ibid; see also People v. Watts (1999) 76 Cal.App.4th 1250, 1265; People v. Foster, supra, 201 Cal.App.3d at pp. 27-28.)
The judgment is affirmed.
We concur: YEGAN, Acting P.J., COFFEE, J.