Opinion
G056217
10-07-2019
THE PEOPLE, Plaintiff and Respondent, v. JAMES ANDREW MELTON, Defendant and Appellant.
Leslie Conrad, 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, A. Natasha Cortina and Lynne G. McGinnis, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. C-49015) OPINION Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Reversed. Leslie Conrad, 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, A. Natasha Cortina and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
On October 13, 1981, police found 77-year-old Anthony DeSousa strangled to death in his Newport Beach home. Days later, Johnny Boyd told his parole officer that he knew who had killed DeSousa: his former fellow inmate and lover, defendant James Andrew Melton. Thereafter, the prosecution charged Melton with capital murder.
In March 1982, Boyd testified against Melton at a preliminary hearing. In November 1982, Boyd testified against Melton at a jury trial. The jury convicted Melton of the charged crimes, found true two special circumstance allegations (murder during a robbery and during a burglary), and imposed the death penalty. The California Supreme Court affirmed the judgment on direct appeal. (People v. Melton (1988) 44 Cal.3d 713, 724 (Melton).) In 1992, Boyd died.
In 2007, following an evidentiary hearing, a federal district court granted Melton habeas corpus relief. The federal court found: "During the thirteen months that Melton spent in jail before and during his trial, jail psychiatric staff administered a variety of psychiatric medications to him." (Italics added.) The federal court ruled: "Because the evidence shows that Melton was compelled to stand trial while mentally incompetent as a result of improperly administered psychiatric medications, the Court must vacate his conviction and death sentence." (Italics added.)
In 2016, the trial court began a second retrial (the first retrial resulted in a hung jury). The prosecution no longer sought the death penalty. The court conducted a retrospective competency hearing, found Melton was competent at the 1982 preliminary hearing, and admitted Boyd's preliminary hearing testimony. The jury found Melton guilty of first degree murder and found true the special circumstance allegations. The court sentenced Melton to life in prison without the possibility of parole.
On appeal, Melton contends that the finding of mental incompetency by the district court at the federal habeas proceeding was binding on the superior court under the collateral estoppel doctrine (issue preclusion). We disagree. The federal court did not find that that Melton was incompetent at the preliminary hearing in March 1982; rather, the federal court found that Melton was incompetent at trial in late 1982.
Melton also contends that it was not "feasible" for the trial court to conduct a retrospective competency hearing 35 years after the preliminary hearing. We agree. While there were some jail medical records, there were no contemporaneous psychiatric, psychological, or neurological reports concerning Melton's mental competence (or lack of competence) at the March 1982 preliminary hearing. (See Pen. Code, § 1368 et seq.)
Further undesignated statutory references are to the Penal Code.
Given the considerable passage of time, the absence of contemporaneous competency examinations, and overarching due process concerns, we find that no court could have reliably concluded that Melton was mentally competent at the March 1982 preliminary hearing. As a result, we hold that Boyd's preliminary hearing testimony was improperly and prejudicially admitted against Melton during the second retrial.
Thus, we reverse the judgment.
I
FACTS AND PROCEDURAL BACKGROUND
On October 13, 1981, police found DeSousa dead in his Newport Beach condominium. DeSousa was lying in his bed naked; his hands were tied in front of his body with an electrical cord. DeSousa's face was partially covered with a pillow; a rope was wrapped around his neck. DeSousa had been beaten about the face and head; one of DeSousa's teeth had been broken. A forensic pathologist opined that the cause of death was ligature strangulation. The condition of the body indicated DeSousa had died a few days earlier.
DeSousa's home had been ransacked; clothing was strewn about the living room. DeSousa's wallet was empty, except for his driver's license. Blood was spattered throughout DeSousa's bedroom. Police dusted for fingerprints and bloodstain samples were analyzed, but none were a match with Melton.
On October 16, Boyd contacted his parole officer and told the parole officer that Melton had killed DeSousa. Later that day, police officers arrested Melton, who was in possession of DeSousa's car. In the car, the police found DeSousa's travel bag, tape recorder, and cameras. Melton was wearing DeSousa's watch.
Melton was living with his girlfriend Linda Harris in a Los Angeles apartment. In Harris' apartment police found DeSousa's suitcase and other personal property. Police also recovered pawn tickets bearing Melton's signature. Police traced the tickets and discovered that Melton had pawned some of DeSousa's belongings.
Boyd's Preliminary Hearing Testimony
Boyd said that he met Melton in prison and the two had been lovers. While in prison, Boyd and Melton came up with a plan to answer personal ads in the Advocate, a gay newspaper, once they were out of prison. Their plan was to enter the homes of "vulnerable" older white men, see if there was anything of value, and then take those items by force if necessary.
The transcript of Boyd's March 1982 preliminary hearing testimony was read into evidence during the second retrial.
In January 1981, Boyd was released from prison (Melton was not released until August 1981). Boyd began responding to personal ads in the Advocate. In July, Boyd responded to DeSousa's ad and arranged to meet him at the Disneyland Hotel. Later, Boyd went to DeSousa's home in Newport Beach where they had drinks and talked. DeSousa told Boyd that he was into sadomasochism. Boyd described a purported cousin (actually Melton) as someone that DeSousa might be interested in. Boyd later phoned Melton and told him about DeSousa and the valuables in his home. Melton said that it would be "worth looking into."
After Melton was released from prison, Boyd arranged for the two of them to meet with DeSousa for dinner at his home on Thursday, October 8. However, before that date, police arrested Boyd on an unrelated theft charge and he was in jail in Los Angeles. Boyd talked to Melton over the phone. Melton said that he would come up with an excuse to explain Boyd's absence, and then he would go ahead and meet with DeSousa by himself.
On October 11, 1981, Melton visited Boyd in jail. Melton was wearing DeSousa's rings. Boyd asked where the jewelry came from and Melton said from DeSousa's home. Melton said that he met DeSousa at the Disneyland Hotel, then they went to DeSousa's house. Boyd asked Melton what happened, but Melton was reluctant to talk about it. When Boyd again asked what happened to DeSousa, Melton "said that [DeSousa] would never tell anybody." Melton made a gesture with his hands indicating that DeSousa had been choked or strangulated.
Boyd noticed that one of Melton's hands was slightly swollen and the skin was broken on the other. Melton told Boyd that he had worn socks over his hands to eliminate fingerprints. Melton explained to Boyd that he had placed DeSousa's luggage and other property in a locker at the Greyhound bus depot in downtown Los Angeles. Boyd noticed that Melton was carrying over $100 in cash, but Melton did not say where it came from.
Three days later, Boyd contacted his parole officer and told him what he knew about DeSousa's death because: "'I felt bad about the whole situation.'" Boyd did not ask for anything in return and the parole officer had not promised a benefit. A few months later, prior to the preliminary hearing, Boyd was given immunity from prosecution for his role in DeSousa's murder.
Other Evidence of Melton's Guilt
Harris testified that Melton lived with her at the time of DeSousa's death. Melton was unemployed. On the morning of Saturday October 10, 1981, Melton left their apartment. Melton said that he was taking a bus to the Disneyland Hotel to meet a friend who owed him some money. At about 5 p.m., Melton called Harris and they arranged to go out to a movie.
Harris had died by the time of the second retrial. The transcript of Harris' testimony from the first retrial was read into evidence during the second retrial.
About an hour later, Melton arrived at Harris' apartment driving DeSousa's car. Melton was carrying about $200 in cash, which he said was half of the money that his friend owed him. Melton said that he was going to keep his friend's car if his friend did not pay him the rest of what he was owed. Melton and Harris went to the movies that night with two other people. Melton paid for everyone. The following morning, Melton left Harris's apartment; Melton said that he was going to visit Boyd in jail. Later that day, Melton and Harris drove to the Greyhound bus station where Melton retrieved DeSousa's luggage and other property from a locker.
Calendars and notebooks were found in DeSousa's apartment, which contained entries in DeSousa's handwriting. "Beginning in June 1981, these referred to 'John' from 'Pasadena,' including a description matching Boyd's. On a notebook page dated October 7, 1981, DeSousa had written 'James, L.A., Six Foot, 200, 29-inch waist, 29, coming Saturday in place of John.'" (Melton, supra, 44 Cal.3d at p. 727.)
Court Proceedings
In October 1981, police arrested Melton. In March 1982, there was a preliminary hearing. Afterwards, the prosecution filed an information charging Melton with murder, burglary, robbery, and two special circumstance allegations. Beginning in October 1982, a jury trial took place. In December 1982, the jury found Melton guilty of the charged crimes, found true the special circumstances allegations, and imposed the death penalty. Six years later, the judgment was affirmed on direct appeal. (Melton, supra, 44 Cal.3d at p. 724.)
In January 2007, a federal court granted habeas corpus relief: "Because the evidence shows that Melton was compelled to stand trial while mentally incompetent . . . , the Court must vacate his conviction and death sentence." (Italics added.)
In July 2011, the matter was assigned to Judge William R. Froeberg for a retrial. The prosecution was no longer seeking the death penalty. Prior to trial, the court denied the People's motion to admit Boyd's preliminary hearing testimony. The court declared a mistrial after the jury could not reach a unanimous verdict.
In August 2014, the matter was assigned to Judge Gregg L. Prickett for a second retrial. Prior to trial, the court conducted a retrospective competency hearing, found that it was "feasible" to conduct the hearing, and found Melton to be mentally competent at the March 1982 preliminary hearing. During trial, the court admitted Boyd's preliminary hearing testimony into evidence. A jury found Melton guilty and found true the special circumstance allegations. The court imposed a life sentence without the possibility of parole.
II
DISCUSSION
Melton contends the trial court should have found him incompetent at the preliminary hearing based on the collateral estoppel doctrine. Melton also contends the court erred by finding that a retrospective competency hearing was feasible. A. The Collateral Estoppel Doctrine
Melton raised several other issues on appeal, but we need not address those issues given the reversal of the judgment.
Melton claims that the trial court was required to find him incompetent at the preliminary hearing (in March 1982), because the federal district court found him mentally incompetent at his first trial (in late 1982). We disagree.
Collateral estoppel (issue preclusion) is a subset of the broader doctrine of res judicata (claim preclusion). (Vandenberg v. Superior Court (1999) 21 Cal.4th 815, 828-829.) There is no discretion as to these rulings; we apply an independent or de novo standard of review. (See In re Marriage of Marshall (2018) 23 Cal.App.5th 477, 484 ["The decision in a prior proceeding is either binding in the successive action, or it is not. The issue presents a pure question of law, and our review is de novo"].)
1. General Legal Principles
Under the collateral estoppel doctrine a party is precluded from litigating an identical issue in a subsequent proceeding. (Takahashi v. Board of Education (1988) 202 Cal.App.3d 1464, 1473-1474.) "First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding." (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341, italics added.)
2. Relevant Proceedings
In January 2007, the federal district court filed a 77-page order granting Melton's petition for a writ of habeas corpus. What follows are excerpts from the district court's order:
"During the thirteen months that Melton spent in jail before and during his trial, jail psychiatric staff administered a variety of psychiatric medications to him. Melton claims the combined effect of these medications so impaired his cognition that he was unable to understand the proceedings or provide meaningful assistance to defense counsel. After permitting discovery, the Court held an evidentiary hearing on this claim . . . . Following the evidentiary hearing, the parties submitted briefs addressing the evidence and the law relevant to these claims. Because the evidence shows that Melton was compelled to stand trial while mentally incompetent as a result of improperly administered psychiatric medications, the Court must vacate his conviction and death sentence." (Italics added.)
"It is undisputed that Melton was administered high doses of powerful mind-altering drugs (the antidepressant Sinequan and the antipsychotic Mellaril), as well as Phenergan, over the course of at least thirteen months before and during his trial. Why jail medical personnel prescribed such high dosages is unknown. The expert witnesses could offer only hypotheses about why the medications were abruptly initiated, increased, and halted. Nor does respondent dispute petitioner's evidence that the high dosage of Mellaril, both on its own and later in combination with Phenergan, as well as the sudden changes in medications, were medically inappropriate for Melton. In short, there was no medically sound reason to administer Melton 750 milligrams of Mellaril every day from May through November of 1982, nor to add to this 100 milligrams of Phenergan from July through November." (Italics added.)
Again, Melton's preliminary hearing took place in March 1982.
"Turning to the evidence provided by the other expert witnesses who did not examine Melton in 1982, the Court finds that the overall weight of their testimony supports the conclusion that Melton was not competent during his trial. Four witnesses, all psychiatrists, offered retrospective opinions on Melton's competence. [Three of the psychiatrists] studied the reports of contemporary observers and others, personally examined Melton, and concluded that Melton was not competent during his trial." (Italics added.)
"The Court finds that as a result of this improper medical treatment with excessive doses of psychotropic drugs, for significant periods of time during his trial in late 1982, Melton lacked a rational understanding of the proceedings against him, and was deprived of the ability to participate in his defense in a rational manner. His conviction while mentally incompetent violated due process of law, and must therefore be vacated." (Italics added.)
3. Analysis
The Orange County Jail began administering Melton psychiatric medications shortly after his arrest in October 1981. But the sole issue addressed by the district court was whether Melton was mentally incompetent during the jury trial, which took place in October through December 1982. The district court did not rule on the issue of Melton's competence during the preliminary hearing, which had occurred about seven months earlier in March 1982. Therefore, because the two factual issues are not identical, the collateral estoppel doctrine does not apply.
Our analysis is supported by People v. Glover (1967) 257 Cal.App.2d 502. In Glover, a jury rejected an insanity defense and found defendant guilty of committing a felony battery on December 4, 1965. (Id. at p. 504.) On appeal, defendant argued that in a prior trial he had been found legally insane as of October 5, 1965. (Id. at p. 509.) The defendant argued "that this . . . brings into play the doctrine of collateral estoppel and that under such doctrine the issue of appellant's insanity on December 4, 1965, should not have been relitigated in this case." (Ibid.) The Court of Appeal disagreed: the collateral estoppel "doctrine does not apply in this case because the insanity issues in the two cases differed timewise by about two months. In other words, proof of insanity on October 5, 1965, is not conclusive proof of insanity on December 4, 1965." (Ibid.)
Similar to the rationale in Glover, a finding that Melton was mentally incompetent at his trial in late 1982 (October, November, and December), was "not conclusive proof" that Melton was incompetent at his preliminary hearing in March 1982. The two competency issues differed timewise by at least seven months. Indeed, the federal district court found that Melton's psychiatric medications varied at different points during the time period he spent in jail prior to his trial, and the more debilitating medications were administered to Melton after the preliminary hearing. B. The Feasibility of the Retrospective Competency Hearing
Melton claims that the trial court erred by finding the retrospective competency hearing was feasible. We agree. As a result, the court prejudicially admitted Boyd's preliminary hearing testimony at the second retrial.
A trial court's ruling regarding the feasibility of a retrospective competency hearing is "subject to the abuse of discretion standard of review." (People v. Ary (2004) 118 Cal.App.4th 1016, 1029.) Further, a court's ruling based "on an error of law constitutes an abuse of discretion." (See In re Charlisse C. (2008) 45 Cal.4th 145, 159.)
1. General Legal Principles
Due process requires that a defendant be competent at all times during criminal proceedings. (Pate v. Robinson (1966) 383 U.S. 375 (Pate).) A defendant is incompetent "if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner." (§ 1367, subd. (a).) If a defendant was mentally incompetent at a preliminary hearing, any witness testimony from that hearing is not admissible in a later legal proceeding because the defendant is not considered to have had the opportunity to cross-examine the declarant. (Evid. Code, § 1291; Stevenson v. Superior Court (1979) 91 Cal.App.3d 925, 930.)
"Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and: [¶] . . . [¶] (2) The party against whom the former testimony is offered was a party to the . . . proceeding . . . and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing." (Evid. Code, § 1291, subd. (a)(2).)
A court must suspend criminal proceedings if there is substantial evidence of a defendant's mental incompetence. (§ 1368 et seq.) Competency hearings are usually triggered when counsel declares a doubt, but the court may raise the issue of competency on its own motion. (§ 1368, subd. (b).) When there is substantial evidence of incompetence, the court must appoint one or more psychiatric experts to examine the defendant. (§ 1369, subd. (a)(1).) These experts provide the court with written reports of their examinations and findings; the reports are made available to both parties. (§ 1369, subd. (a)(2).) In competency proceedings, a defendant is presumed competent and bears the burden of proving his or her incompetency. (§ 1369, subds. (b) & (f).)
A "Pate error" occurs when there is substantial evidence of incompetence, but the trial court fails to order competency proceedings. (Pate, supra, 383 U.S. 375.) When there is a Pate error, the judgment is reversed because the court has deprived the defendant of due process. (People v. Pennington (1967) 66 Cal.2d 508, 521.) In rare circumstances, an appellate court may order a retrospective competency hearing on remand; if the defendant is then found to have been competent at the trial, the original judgment is reinstated. (People v. Ary, supra, 118 Cal.App.4th at p. 1025.) However, prior to a retrospective competency hearing, there must be a finding as to "whether such a hearing will be feasible." (People v. Lightsey (2012) 54 Cal.4th 668, 710.)
"Feasibility" means the availability of evidence to reliably determine the defendant's mental competence at the earlier proceeding. (In re Galaviz (2018) 23 Cal.App.5th 491, 510.) Courts generally balance four "feasibility" factors: 1) the passage of time; 2) the availability of contemporaneous evidence; 3) any contemporaneous statements by the defendant; and 4) the availability of witnesses, both experts and nonexperts, who were in a position to interact with the defendant before and during the earlier proceeding. (Lightsey, supra, 54 Cal.4th at p. 710.)
2. The Retrospective Competency Hearing
Dr. George Woods, the defense's psychiatric expert, performed a retrospective assessment of Melton's competency. Woods interviewed Melton, talked to his sister, and reviewed contemporaneous jail records. When Melton was arrested and taken to in jail on October 23, 1981, jail staff prescribed 100 milligrams of Sinequan (Doxepan), an antianxiety/antidepression medication. In December 1981, Melton told someone that he was depressed because his wife died in labor, yet Melton's wife was still alive. In January 1982, a "mitigation person" stated the Melton had memory problems and problems putting his thoughts together. In February 1982, a report noted that Melton was having "reactive anxiety." Woods opined there was "high probability" that Melton was not competent at the time of the preliminary hearing in March 1982, due to a substance-induced delirium.
Dr. Michael Cummings, the prosecution's psychiatric expert, also reviewed Melton's jail records. Cummings testified Melton's "prescription of Doxepin would appear to have been appropriate." Cummings said that there can be adverse side effects including impaired attention and confusion. However, Cummings said that no adverse effects were noted in Melton's records. Cummings opined that there was nothing to indicate Melton was mentally incompetent at the time of his March 1982 preliminary hearing. Cummings opined "that it was unlikely that [Melton] was in a substance-induced delirium."
Attorney Richard Bonner testified that he was appointed in November 1981 to represent Melton. Bonner had worked as a defense attorney for about six years; he had represented clients in about 75 jury trials, including "a handful" of murder cases. On March 12, 1982, Bonner represented Melton during the preliminary hearing. At no point did Bonner indicate to the magistrate that he had a doubt as to Melton's mental competence. Bonner said that if he thought that Melton "was incompetent, I would not have proceeded."
Before making its ultimate ruling (that Melton was competent at the March 1982 preliminary hearing), the trial court ruled on the feasibility issue: "In this situation the defendant was receiving treatment. He was receiving both medicine treatment, and there are notations in the file . . . . [¶] There was much discussion about . . . his wife dying in childbirth, the statement made regarding his mental state . . . . [¶] So those are—that's all evidence that the court has before it that in other situations the court would not have. [¶] . . . [¶] We spent, I think when you put it all together, three, three and a half days of hearing testimony on this. So that there was evidence that the court can receive. [¶] So the court rules that the People have met their burden and . . . feasibility was possible here."
3. Analysis
The facts and circumstances in this case are unique. The feasibility issue concerns legal proceedings that occurred in 1982. The federal district court found: "During the thirteen months that Melton spent in jail before and during his trial, jail psychiatric staff administered a variety of psychiatric medications to him." (Italics added.) As a result, the federal court ruled that Melton was mentally incompetent during the trial, and vacated his conviction and death sentence. By the time of the retrials, the prosecution's key witness, Boyd, had long since passed away. There was no real dispute that Boyd's prior trial testimony (in late 1982) was therefore inadmissible.
In the first retrial, the prosecution sought to admit Boyd's preliminary hearing testimony under the former testimony exception to the hearsay rule. (Evid. Code, § 1291.) The trial court determined that given the earlier ruling of the federal court, and under principles of collateral estoppel, Boyd's preliminary hearing testimony was not admissible. The jury ultimately did not reach a unanimous verdict.
In the second retrial, the prosecution again sought to admit Boyd's preliminary hearing testimony. This time, the trial court ruled that collateral estoppel did not apply (and we concur). But the court then had to resolve a separate issue that had never been addressed before: Melton's competency during the preliminary hearing. Usually, this would not be a concern. That is, a defendant is presumed to be competent, and counsel did not declare a doubt at the March 1982 preliminary hearing. However, the federal court found that the jail had administered psychiatric medications to Melton before his trial, which included the time frame of the preliminary hearing. Therefore, the court had to resolve the factual issue of Melton's competency in order to rule on the admissibility of Boyd's preliminary hearing testimony. Hence, Melton's competence was a "preliminary fact" that needed to be established under the Evidence Code.
A "'preliminary fact' means a fact upon the existence or nonexistence of which depends the admissibility or inadmissibility of evidence." (Evid. Code, § 400.)
Under the Evidence Code, the proponent of proffered evidence—in this case the prosecution and its proffer of Boyd's preliminary hearing testimony—"has the burden of producing evidence as to the existence of the preliminary fact." (Evid. Code, § 403, subd. (a).) But the proponent of incompetency—in this case Melton—is presumed to be competent and had the burden of proving his incompetence. (See § 1369.)
In rare cases, the prosecution may be the proponent of incompetency. (See People v. Bye (1981) 116 Cal.App.3d 569, 573 ["if the defense declines to present evidence in support of the allegation of mental incompetence, the prosecution may do so"].)
Ordinarily, it is not a violation of due process to place the burden on a defendant to prove his or her incompetence. (People v. Medina (1990) 51 Cal.3d 870, 884-885.) This is true so long as "the State affords the criminal defendant on whose behalf a plea of incompetence is asserted a reasonable opportunity to demonstrate that he is not competent to stand trial." (Medina v. California (1992) 505 U.S. 437, 451 [California' statutory competency scheme, which generally places the burden of establishing incompetency on the defendant, does not violate due process].)
But here, the retrospective competency hearing was far outside the bounds of the usual statutory scheme, so we must consider Melton's due process rights. That is, the gravamen of the feasibility issue in this case is whether the 35-year-old retrospective competency hearing provided Melton with "a reasonable opportunity to demonstrate that he [was] not competent . . . ." (See Medina v. California, supra, 505 U.S. at p. 451.)
In reviewing the feasibility issue, we are substantially aided by the reasoning of the California Supreme Court, in a recent opinion that was not available to the lower court at the time of the second retrial. (People v. Rodas (2018) 6 Cal.5th 219 (Rodas).) In Rodas, defendant was charged with murder. During jury selection, counsel declared a doubt as to defendant's competency. Counsel said defendant had stopped taking his psychiatric medications, spoke to counsel "in a word salad," and wanted to testify. (Id. at p. 227.) After a brief colloquy with defendant, the trial court did not order psychiatric examinations or conduct a competency hearing. Defendant testified at trial and the jury found him guilty. (Id. at pp. 229-230.)
Melton brought the opinion to the attention of this court and the Attorney General after written briefs were filed, but before oral argument.
The Supreme Court found that the trial court's failure to conduct a competency hearing constituted a Pate error and reversed. (Rodas, supra, 6 Cal.5th 219.) As to the remedy, the Court did not order a retrospective competency hearing: "under the circumstances of this case such a hearing would not supply an adequate remedy." (Id. at p. 241.) The Court noted "when courts have permitted retrospective hearings, they have generally done so in cases involving unusual circumstances where reliable evidence of the defendant's mental condition at the time of trial would be available at the hearing. [Citations.] Absent such contemporaneous evidence here . . . and the considerable passage of time, we conclude no retrospective competency hearing could '"place[] [defendant] in a position comparable to the one he would have been placed in prior to the original trial."'" (Ibid.) The Court held: "Under the particular circumstances of this case, at a distance of around five years and without any expert evaluations from the time of trial, we do not believe the trial court could fairly come to a reliable conclusion that defendant was competent at that time." (Ibid.)
Here, the trial court conducted a competency hearing about 35 years after the preliminary hearing, which was substantially longer than the "considerable passage of time" of five years in Rodas. Further, just as in Rodas, the trial court in this case did not have the benefit of any contemporaneous psychiatric, psychological, or neurological evaluations of Melton's competence. Moreover, the entire process was well outside of the statutory competency scheme, which ordinarily ensures the protection of a defendant's due process rights. (See Medina v. California, supra, 505 U.S. at p. 451.)
Under the particular circumstances of this case, at a distance of 35 years, and without any expert competency evaluations at the time of the preliminary hearing, we do not believe that any trial court could fairly come to a reliable conclusion that Melton was mentally competent at the preliminary hearing. As a result, we hold that it was error to admit Boyd's former testimony at the preliminary hearing. (See Evid. Code, § 1291.)
As far as the prejudicial effect of the evidentiary error, the jury in the first retrial was unable to reach a unanimous verdict in the absence of Boyd's highly incriminating preliminary hearing testimony. Therefore, we find that the erroneous admission of Boyd's preliminary hearing testimony in the second retrial was unquestionably prejudicial under either standard of review. (See People v. Watson (1956) 46 Cal.2d 818, 836 [defendant must show a reasonable probability of a more favorable outcome in the absence of the error]; see also Chapman v. California (1967) 386 U.S. 18, 24 [prosecution must show error was harmless beyond a reasonable doubt].)
At oral argument, the Attorney General claimed that Melton forfeited his challenge to the feasibility of the retrospective competency hearing because he did not make that same challenge during the federal habeas proceedings. We disagree. The issue of Melton's competence during the preliminary hearing was not relevant in the federal habeas proceedings; the issue in federal court was Melton's competency during the trial. Melton's competency at the preliminary hearing only became relevant at the second retrial because it was a preliminary fact to be determined before the court could admit Boyd's preliminary hearing testimony. (See Evid. Code, §§ 402 et seq., 1291.) Thus, there is no validity to the Attorney General's claim regarding forfeiture.
III
DISPOSITION
The judgment is reversed.
MOORE, ACTING P. J. WE CONCUR: THOMPSON, J. GOETHALS, J.