Opinion
A116410
4-29-2008
THE PEOPLE, Plaintiff and Respondent, v. RICHARD EDMOND BENGE, Defendant and Appellant
NOT TO BE PUBLISHED
Defendant was convicted following a jury trial of possession of methamphetamine for sale (Health & Saf. Code, § 11378), unlawful transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)), and possession of methamphetamine while armed with a loaded, operable firearm (Health & Saf. Code, § 11370.1, subd. (a)). The jury also found that during commission of the offenses defendant was personally armed with a firearm (Pen. Code, § 12022, subds. (a)(1), (c)). He was denied probation by the trial court and sentenced to an aggregate term of six years in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
In this appeal, defendant objects to the trial courts repetition of a jury instruction on joint and constructive possession, and makes two claims of sentencing error: the failure of the trial court to order an examination for purposes of a commitment to a treatment program under section 1170.9; and the admission and consideration of the competency report of an appointed psychiatrist. We find that the repetition of the jury instruction was not error. We further find that defendant was not qualified for sentencing under section 1170.9, and the admission of the competency report was not prejudicial to defendant. We therefore affirm the judgment.
STATEMENT OF FACTS
In light of the issues presented in this appeal we will concisely recite the facts pertinent to the underlying offenses. During discussion of the claims of sentencing error we will focus on the facts pertinent to those claims.
Defendant was driving a 1991 Lexus on a residential street in the city of Lucerne on January 9, 2006, when he was detained for expired registration tags at just after 1:00 a.m. by Deputy Brian Martin. An "adult male" occupied the front passenger seat. When Deputy Martin illuminated the interior of the vehicle with his flashlight he observed "what appeared to be the outline of a nylon gun holster propped between the seat and the center hump console." A closer look revealed to the deputy that the holster "contained what appeared to be a handgun." In response to Deputy Martins inquiries defendant acknowledged that the gun was loaded, and he did not possess a concealed weapons permit.
Deputy Martin requested backup and directed defendant and his passenger to exit the vehicle. Defendant was pat searched and placed in handcuffs. Defendant was found to be in possession of "several long pieces of skinny metal and a brass colored," "hallowed out" "metal cylindrical container in his left front pocket" that he stated was found on his "bosss yacht" and was "used for soldering and welding." Deputy Martin "saw what appeared to be chunks of white crystal substance attached" to the inside of the brass cylinder. During the pat search defendant also stated that he "forgot the gun was in there," and he "should have put it in the trunk." From inside the car Deputy Martin seized the gun, a Beretta . 32-caliber semiautomatic pistol, which contained three operable rounds of ammunition in the magazine. A search of the passenger, Mark Lucero, revealed that he was not in possession of any contraband, paraphernalia or weapons.
The residue in the brass cylinder was not tested.
Defendant was then placed under arrest and the Lexus was searched. Inside the closed center console between the driver and passenger seats Deputy Martin found a film canister that contained nine baggies of crystal methamphetamine with a total weight of 3.2 grams. Expert opinion testimony was presented that the methamphetamine was "possessed for sale," based on the total weight and number of baggies of the drug possessed, the nature of the packaging — "nine separate baggies" each with a "similar amount of controlled substance" — the absence of any user paraphernalia in the car, and the presence of a firearm in the vehicle that drug sellers "often" carry to protect themselves.
A search of defendants residence pursuant to a warrant resulted in seizure of "eight glass pipes" with apparent residue on the inside "which are used for smoking controlled substances," and numerous zip-lock baggies of the kind used for methamphetamine packaging.
Defendant testified in his defense that he obtained the Lexus from a friend, William Caggley, on the night of January 8, 2006. Caggley bought a new car, and gave defendant the Lexus, along with the registration, bill of sale, and title, as a "bonus" for work he had done since October of 2005. Defendant intended to give the Lexus to his cousin Della Hoffman, and drove it to her house. Hoffman did not take possession of the car that night, although defendant gave her the "papers on it" so she could obtain registration tags.
About 10 minutes before he was detained defendant picked up his friend Mark Lucero to show off the car. Defendant did not notice Lucero place anything in the console as they drove around.
Defendant also testified that he was given the firearm by his father. The gun was often in possession of Caggley while he stayed on his yacht to "protect his stuff." On the night of defendants arrest Caggley had just returned the gun to him when he left to "come home" from the yacht. Defendant tossed the loaded gun onto the passenger seat, but it must have wedged between the seat and the console as he drove fast around some corners. He had "completely forgot[ten] about the gun being in there" until he was detained by Deputy Martin.
Defendant testified that he did not look in the console after he got the Lexus from Caggley, and "had no knowledge" of the methamphetamine found in the film canister. He denied that he used, sold or transported drugs. Defendant added that he had seen Caggley and his girlfriend in possession of drugs, and also previously observed Caggleys girlfriend drive the Lexus.
As for the brass cylinder, defendant testified that he found it in one of the "Joey boxes" on Caggleys yacht, and intended to use it to carry his prescription of nitroglycerin. He never opened it.
Defendant was aware of the glass pipes seized from his residence. He explained that he has "experience blowing glass," and makes or fixes the pipes for other people.
Defendants cousin Della Hoffman testified that defendant gave her the Lexus in exchange for money he owed her. He arrived at her home from San Rafael just after midnight on January 9th to drop off the car. She did not take possession of the Lexus that night "because it hadnt been registered," but defendant briefly took her for a ride in the car. He then left to drive to Lucerne.
DISCUSSION
I. The Instruction on Constructive Possession.
Defendant objects to the trial courts repetition of part of the jury instruction on possession for sale of a controlled substance. The court defined the elements of the offense, and, in accordance with the standard instruction (CALCRIM No. 2302), advised the jury: "Two or more people may possess something at the same time. A person does not have to actually hold or touch something, to possess it. It is enough if the person has control over it or the right to control it either personally or through someone else — actually, either personally or through another person." (Italics added.) The court then stated: "Im going to read that last paragraph again. A person does not have to actually hold or touch something, to possess it. It is enough if a person has control over it or the right to control it, either personally or through another person." (Italics added.) Defendant argues that the repetition of the instruction on constructive possession, and particularly the phrase "either personally or through another person," erroneously "gave the jury the impression that the Court was commenting on the application of the instruction to the evidence." He complains that the "heart" of his "defense was that he was not aware of the film canister in the console," and therefore the emphasis placed on the constructive possession instruction was prejudicial to him by improperly indicating to the jurors "how they were to find" on that issue.
CALCRIM No. 2302 has been recently found to properly include "all of the elements of the crime of possession for sale. It correctly states the elements of possession and knowledge in a manner reasonable jurors are able to understand." (People v. Montero (2007) 155 Cal.App.4th 1170, 1177.)
We observe, as defendant has conceded, that he did not object to the repetition of the instruction at trial. "Normally, a defendant forfeits the right to appeal alleged errors ` "by failing to make an appropriate objection in the trial court; however, an appellate court may review any instruction given even though no objection was made in the lower court if the substantial rights of the defendant are affected. [Citation.] The cases equate `substantial rights with reversible error, i.e., did the error result in a miscarriage of justice? [Citations.]" [Citation.] [Citation.]" (People v. Christopher (2006) 137 Cal.App.4th 418, 426-427, italics omitted; see also People v. Prieto (2003) 30 Cal.4th 226, 247; People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) "Generally, whether or not an appellate court should excuse the lack of a trial court objection `is entrusted to its discretion. [Citation.]" (People v. Abbaszadeh (2003) 106 Cal.App.4th 642, 649.) Defendant maintains his substantial rights were infringed by the instructional error, but adds that if forfeiture of the issue is found he "contends that his counsel failed to provide effective assistance of counsel by failing to object." Without expressly finding that defendants substantial rights were abridged, we exercise our discretion to proceed to the substance of his objections to the instruction to deal with his dual claims of instructional error and ineffective assistance of counsel. (See People v. Guerra (2006) 37 Cal.4th 1067, 1134; People v. Gray (2005) 37 Cal.4th 168, 235-236; People v. Johnson (2003) 109 Cal.App.4th 1230, 1235; People v. Bautista (1998) 63 Cal.App.4th 865, 871.)
We agree with defendant that a repetition of instructions should be avoided if possible, and may constitute error if undue emphasis of a particular point operates to confuse the jury in the consideration of the evidence. (People v. Kelley (1980) 113 Cal.App.3d 1005, 1013-1014.) "Additionally, `it is error to give, and proper to refuse, instructions that unduly overemphasize issues, theories or defenses either by repetition or singling them out or making them unduly prominent although the instruction may be a legal proposition. [Citations.] [Citation.]" (Munoz v. City of Union City (2004) 120 Cal.App.4th 1077, 1108.)
But here, the trial court merely repeated a single sentence of the instruction to correct or elucidate a very trivial misstatement — that is, to strictly adhere to CALCRIM No. 2302, that used the language "through another person," rather than "through someone else." We have no doubt that the jury realized the partial re-reading of the instruction was an attempt at clarification rather than an emphasis upon the element of constructive possession. And if any doubt remained, the court also specifically charged the jury pursuant to CALCRIM No. 200 that, "If I repeat any instruction or idea, do not conclude that it is more important than any other instruction or idea just because I repeated it." The same instruction further stated: "Do not assume just because I give a particular instruction that I am suggesting anything about the facts." Without any indication to the contrary in the record, we must assume the jury followed the courts instructions. (People v. Leonard (2007) 40 Cal.4th 1370, 1413; People v. Ramirez (2006) 39 Cal.4th 398, 460; People v. Davis (2005) 36 Cal.4th 510, 545.)
In considering a claim of instructional error, "The test is whether there is a reasonable likelihood that the jury understood the instruction in a manner that violated the defendants rights." (People v. Andrade (2000) 85 Cal.App.4th 579, 585; see also Sandstrom v. Montana (1979) 442 U.S. 510, 514; People v. Warren (1988) 45 Cal.3d 471, 487; People v. Smith (1992) 9 Cal.App.4th 196, 201.) "When a claim is made that instructions are deficient, we must determine whether their meaning was objectionable as communicated to the jury. If the meaning of instructions as communicated to the jury was unobjectionable, the instructions cannot be deemed erroneous." (People v. Dieguez (2001) 89 Cal.App.4th 266, 276; see also People v. Kelly (1992) 1 Cal.4th 495, 525; People v. Fonseca (2003) 105 Cal.App.4th 543, 549.) When considered in context and in conjunction with the CALCRIM No. 200 instruction, we find that the trial courts brief repetition of the constructive possession language did not mislead or confuse the jury, and thus was not error. (See People v. Rogers (2006) 39 Cal.4th 826, 876; People v. Holloway (2004) 33 Cal.4th 96, 152-153; People v. Noguera (1992) 4 Cal.4th 599, 642; People v. Howard (1988) 44 Cal.3d 375, People v. Wong (1973) 35 Cal.App.3d 812, 837; 440; People v. Stuller (1970) 10 Cal.App.3d 582, 601.)
II. Section 1170.9.
We turn to the claims of sentencing error, the first of which is that defendant "should have been sent for a Penal Code § 1170.9(b) examination" by the trial court once his military service record became known. Subdivision (a) of section 1170.9 provides: "In the case of any person convicted of a criminal offense who would otherwise be sentenced to county jail or state prison and who alleges that he or she committed the offense as a result of post-traumatic stress disorder, substance abuse, or psychological problems stemming from service in a combat theater in the United States military, the court shall, prior to sentencing, hold a hearing to determine whether the defendant was a member of the military forces of the United States who served in combat and shall assess whether the defendant suffers from post-traumatic stress disorder, substance abuse, or psychological problems as a result of that service." (Italics added.) Subdivision (b) adds: "If the court concludes that a defendant convicted of a criminal offense is a person described in subdivision (a), and if the defendant is otherwise eligible for probation and the court places the defendant on probation, the court may order the defendant into a local, state, federal, or private nonprofit treatment program for a period not to exceed that which the defendant would have served in state prison or county jail, provided the defendant agrees to participate in the program and the court determines that an appropriate treatment program exists."
Defendant argues that his statements to the probation officer and a subsequent investigation by the probation department indicated that he served in the United States military "during the end years of the Vietnam war." Therefore, defendant asserts that he "should have been referred for a combat veterans assessment" under section 1170.9. He further claims that the trial court erred by failing to consider his "needs" as a combat veteran in determining whether to place him on probation, as mandated in subdivision (d) of section 1170.9.
"In the granting of probation, the Legislature has declared the primary considerations to be: `the nature of the offense; the interests of justice, including punishment, reintegration of the offender into the community, and enforcement of conditions of probation; the loss to the victim; and the needs of the defendant. (Pen. Code, § 1202.7.)" (People v. Carbajal (1995) 10 Cal.4th 1114, 1120, italics added.) Subdivision (d) of section 1170.9 reads: "When determining the `needs of the defendant, for purposes of Section 1202.7, the court shall consider the fact that the defendant is a person described in subdivision (a) in assessing whether the defendant should be placed on probation and whether the defendant would be best served while on probation by being ordered into a private nonprofit treatment service program with a demonstrated history of specializing in the treatment of military service-related issues, such as post-traumatic stress disorder, substance abuse, or psychological problems." (Italics added.)
According to the record before us, during defendants probation interview he professed that he spent 17 years in the U.S. military, reached the rank of Lieutenant Colonel, was a combat pilot, and received two purple hearts. He asserted that he was "originally given amphetamine as a pilot in the military." Based on defendants disability, absence of a prior criminal record, and his "prior honorable military service," a grant of probation was recommended in the probation report.
Defendant made other related claims as well, such as: his military service record was "classified" and he was highly decorated; he earned a military pension that he assigned to a blind stepdaughter; and, his grandfather was Adolph Hitlers brother.
At the first sentencing hearing on August 18, 2006, the prosecutor provided information that disproved defendants "military claims." A subsequent examination of defendants military records revealed that he served only two years in the Marines and Army, was not a pilot, and did not reach the rank of Lieutenant Colonel. Department of Defense records indicated that defendant served for "only one month" in the Marines in 1971, and from January of 1972 through 1973 in the Army as "an armor crewman." Nothing in defendants military records specified that he was injured in combat or was awarded a purple heart, and he did not receive any military benefits for which he would have been eligible if he was injured in combat. When questioned by the probation officer about the discrepancies between his prior statements and military records, defendant became evasive and refused to further cooperate. Due to defendants lack of candor and consequent doubt about his "mental faculties" and "ability or willingness" to complete probation, the supplemental probation report recommended that he "be sent to a diagnostic facility for observation and treatment" pursuant to section 1203.03.
On September 1, 2006, defense counsel declared her belief that defendant "is mentally incompetent." The court appointed Dr. Douglas Rosoff to examine defendant to determine if he was able to understand the nature and purpose of the criminal proceedings, comprehend his own status and condition in reference to the proceedings, and assist counsel with his defense (Evid. Code, § 730). Dr. Rosoffs report, which was submitted on September 29, 2006, characterized defendant as cooperative, alert, rational, stable and articulate during the interview. Dr. Rosoff stated that defendants fabrications to the probation officer were not the product of a psychiatric disorder, delusions, or hallucinations, but rather were "outright lies" designed to curry personal gain or favor. He offered the opinion that defendant is presently competent to stand trial.
At a hearing on October 3, 2006, the trial court received Dr. Rosoffs report into evidence over defense objection that it was "confidential," and referred the matter to the Department of Corrections under section 1203.03 for a diagnosis and recommendation for commitment to the California Rehabilitation Center (CRC), as suggested in the supplemental probation report. The Department of Corrections diagnostic evaluation report offered a split recommendation: the Staff Psychologist recommended probation; the Correctional Counselor recommended incarceration. In his recommendation the Correctional Counselor noted that defendant appeared to be "a conniving person who will do anything and say anything to keep from accepting responsibility" for his offense, and thus was a "poor candidate for probation."
The second supplemental probation report was filed on January 5, 2007, while the court was still considering the section 1203.03 diagnostic evaluation. In light of defendants continued refusal to accept responsibility and the "false information" he provided to the court, the probation officer no longer recommended a grant of probation, but instead recommended a sentence of the middle term of three years in state prison.
At the sentencing hearing on January 5, 2007, the court denied probation for numerous articulated reasons: the serious, premeditated nature of the offenses; the "criminal sophistication" associated with the crimes; defendants active participation in the crimes; the lack of provocation or other unusual circumstances which attended the crimes; the defendants refusal to accept responsibility for the crime; defendants misrepresentation of his military background; and his danger to society. The court imposed the lower rather than middle term of imprisonment for transportation of methamphetamine, primarily for the reason that defendant had "no prior criminal record." A four-year enhancement was imposed for the finding that defendant was personally armed with a firearm, for a six-year aggregate term. A commitment to the CRC was denied. After receiving another diagnostic evaluation from Dr. Donald Apostle, which noted that defendant was an "unreliable historian" of his drug use and personal matters, and found no imminent danger of his addiction to drugs, the court reaffirmed the denial of CRC commitment, and implemented execution of the state prison sentence.
Defendant maintains that his references to combat service and use of "methamphetamine while in the military" required the trial court to hold a hearing under section 1170.9 to determine whether he suffered "from post-traumatic stress disorder, substance abuse, or psychological problems as a result of that service." He acknowledges that defense counsel failed to specifically request "a § 1170.9 assessment," but submits the provisions of the statute "are mandatory," and claims he made an adequate "initial showing of being a Vietnam veteran with a substance abuse problem" to obtain the benefits of appropriate federal treatment programs.
In the alternative, defendant claims that if a waiver is found, his counsel was incompetent "by failing to object."
Under section 1170.9, "Defendants who establish they were members of the United States military forces, served in combat in Vietnam and suffer from substance abuse as a result of that service may be committed to the custody of federal correctional authorities at the courts discretion." (People v. Ruby (1988) 204 Cal.App.3d 462, 467.) "Section 1170.9 offers the trial judge a meaningful alternative to either probation or imprisonment in the case of Vietnam veterans convicted of a felony who might otherwise be committed to state prison. The court may, in an appropriate case, commit such a defendant for a time period equal to the prison term to a federal facility for treatment for substance abuse or psychological problems resulting from Vietnam combat service." (People v. Bruhn (1989) 210 Cal.App.3d 1195, 1198.) "[T]he language of section 1170.9 is mandatory rather than permissive. While the statute does not require the sentencing judge to choose federal incarceration for convicted Vietnam veterans, it does state that the judge `shall consider whether the defendant meets the requirements for eligibility under that section." (Id. at p. 1199, italics omitted.)
Section 1170.9 has been declared to be a "beneficent but meaningless" statutory scheme due to "the lack of necessary implementing federal legislation . . . ." (People v. Abdullah (1992) 6 Cal.App.4th 1728, 1736; see also People v. Duncan (2003) 112 Cal.App.4th 744, 747-748.) This being so, the courts have found that, " `Until such time as "federal law authorizes the receipt" into "appropriate federal programs" of Vietnam combat veterans convicted of a felony, which is not now possible, there can be no abuse of discretion by reason of a courts failure to consider a nonexistent sentencing option [citation]," and no prejudicial error. (People v. Duncan, supra, at p. 748; People v. Abdullah, supra, at pp. 1736-1737.)
We need not refer to the illusory nature of the section 1170.9 sentencing alternative to determine that no error was committed in the present case, however, as the requisite elements for sentencing under section 1170.9 were not established. "In order to trigger the provisions of section 1170.9, the defendant must make an initial showing that he served in combat while a member of the United States Armed Forces and that he suffers from substance abuse or other psychological problems resulting from that service. Once that occurs, however, the trial court must then consider his suitability for federal incarceration for the term imposed." (People v. Bruhn, supra, 210 Cal.App.3d 1195, 1199, italics omitted.) Before sentencing can then occur under section 1170.9, the defendant must further agree to commitment to the custody of federal correctional officials for incarceration, and demonstrate that appropriate federal programs exist and federal law authorizes the receipt of the defendant. (People v. Duncan, supra, 112 Cal.App.4th 744, 747.)
The only credible evidence adduced in the present case was that defendant served in the military for nearly two years during the time frame of the Vietnam war, and was assigned for at least part of that service to duty as an armor crewman. Defendants additional assertions that he served as a combat pilot, during which he was first given amphetamines, and received two purple hearts during his 17-year military career, were determined to be patently fallacious. Entirely absent from the record is any evidence that defendant served in combat in Vietnam. We do not even know if defendant was stationed in Vietnam during his military service. Further, nothing denotes that defendant suffers from substance abuse as a result of his service. He did not produce any evidence of a medical diagnosis that indicates he manifests posttraumatic stress syndrome or any form of substance abuse diagnosed as causally related to his military experience. To the contrary, the medical reports specified that defendant has no history of drug or alcohol abuse or addiction, has no serious mental disorder, and has no prior psychiatric hospitalizations. Defendant also adamantly denied any addiction to drugs. Finally, defendant did not express his consent to federal incarceration for the term imposed, which is a further prerequisite to a section 1170.9 commitment. (People v. Amerson (1984) 151 Cal.App.3d 165, 168.) The evidence falls far short of the prima facie showing necessary for eligibility for sentencing consideration under Penal Code section 1170.9. (People v. Enriquez (1984) 159 Cal.App.3d 1, 6-7.)
In fact, the record contains a statement that defendant "left the military in Germany in the 1970s." (Italics added.)
Therefore, the trial court did not err by failing to consider alternate sentencing under section 1170.9. For the same reasons, we conclude that the court did not violate subdivision (d) of section 1170.9 by failing to consider defendants "needs" as a combat veteran in determining whether to place him on probation. And in any event, the court did discuss the defendants military service when considering probation as a sentence choice.
Also, on this record we cannot find that trial counsel was incompetent for failing to seek a referral for a section 1170.9 assessment. Counsel may very well have decided for strategic reasons to eschew a section 1170.9 commitment, particularly given defendants repeated denials of drug abuse. We cannot speculate, and without a definitive indication in the record before us of inexcusable ignorance or oversight by defendants attorney rather than strategic considerations as the basis for the decision, we cannot find inadequate assistance of counsel on appeal. (People v. Hart (1999) 20 Cal.4th 546, 630; People v. Montiel (1993) 5 Cal.4th 877, 921; People v. Aubrey (1999) 70 Cal.App.4th 1088, 1105.) And without evidence to support the commitment, defendant suffered no prejudice from his attorneys failure to request sentencing under section 1170.9.
III. The Admission of Dr. Rosoffs Report.
We turn to defendants complaint that the trial court "improperly admitted into evidence and considered at the penalty phase" of the proceedings the competency report of Dr. Rosoff. He contends that the report "went well beyond the scope" of addressing the issues presented by the court-ordered competency evaluation to furnish "unflattering details" of Dr. Rosoffs interview with him. Defendant specifically objects to Dr. Rosoffs statements that he engaged in a "pattern of lying" and making "preposterous claims," many of them related to his military career, which were "fabricated stories for personal gain" rather than the product of "delusions or psychotic symptoms." Dr. Rosoff also wrote that defendant deliberately provided a "self-serving account of the January 9, 2006, offense." The trial court admitted Dr. Rosoffs report over defense counsels confidentiality objection. Defendant now claims the evidence also violated his Fifth Amendment right against self-incrimination and his Sixth Amendment right to assistance of counsel due to the lack of any prior admonitions that he had the right to counsel during questioning by Dr. Rosoff, or that the court-ordered competency evaluation "would be used against him in his ongoing sentencing proceedings." He adds that defense counsel was "ineffective" in failing to properly advise him of his rights or to object to the admission of Dr. Rosoffs report on Fifth and Sixth Amendment grounds at the sentencing hearing.
In support of his argument defendant relies primarily on Estelle v. Smith (1981) 451 U.S. 454, 468-469 (Estelle ), in which the United States Supreme Court held that a "criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding" unless the defendant had been informed of and waived his rights under Miranda v. Arizona (1966) 384 U.S. 436. If the defendant invokes his rights and refuses to answer questions of the mental health professional conducting the competency examination, "the validly ordered competency examination nevertheless could . . . proceed[] upon the condition that the results would be applied solely for that purpose," that is, solely for the purpose of the competency examination. (Estelle, supra, at p. 468; see also People v. Pokovich (2006) 39 Cal.4th 1240, 1245.) From the protection afforded by the Fifth Amendment, California has adopted a judicially declared rule of immunity that prohibits consideration of evidence of either the statements of the defendant to the competency evaluator or any fruits of the mental competency examination. (People v. Jablonski (2006) 37 Cal.4th 774, 802-803; People v. Arcega (1982) 32 Cal.3d 504, 522; Tarantino v. Superior Court (1975) 48 Cal.App.3d 465, 470.) A psychiatrist appointed to examine a defendant for competency may not subsequently testify on the issues of the defendants guilt, sanity or penalty. (People v. Weaver (2001) 26 Cal.4th 876, 959-963; Centeno v. Superior Court (2004) 117 Cal.App.4th 30, 42; Baqleh v. Superior Court (2002) 100 Cal.App.4th 478, 497.)
The competency examination in Estelle was initiated sua sponte by the court, not by the defendant, who never introduced psychiatric evidence or indicated he might do so. At the penalty phase, the state used information obtained from the court-ordered competency examination as affirmative evidence to persuade the jury to return a sentence of death.
Without reaching the merits of defendants argument, we conclude that he did not suffer any prejudice from the consideration of Dr. Rosoffs report by the sentencing court or the lack of advisements or objections by counsel, under even the stringent Chapman (Chapman v. California (1967) 386 U.S. 18, 24) standard of review. We need not determine the constitutional issues raised by defendant if any claimed erroneous consideration by the trial court of the statements in Dr. Rosoffs report was harmless beyond a reasonable doubt. (People v. Houston (2005) 130 Cal.App.4th 279, 295.) The simple fact is that the content of Dr. Rosoffs report to which defendant now objects is merely a repetition of considerable, essentially undisputed evidence obtained from multiple other sources. The supplemental probation report, the second supplemental probation report, the report of Dr. Apostle, and the Department of Corrections section 1203.03 diagnostic evaluation, all uniformly recounted defendants refusal to accept responsibility for the offenses, failure to express remorse, continued unjustified assertions of innocence, and particularly his falsification of information provided to the court. The prosecutor also presented evidence that defendant was not truthful when depicting his military history. At the final sentencing hearing, defendant did not contest that he told some "tall tales" to the probation department, but rather argued that despite the fabrications he was a suitable candidate for probation. When denying probation to defendant the court cited his misrepresentations of his military service and other matters, but did not refer to Dr. Rosoffs report to do so. The court also properly relied on numerous other aggravating factors to deny probation.
An error in the admission of evidence may be deemed harmless where the properly admitted evidence is overwhelming and the incriminating statements are merely cumulative of other evidence. (See People v. Martinez (2003) 113 Cal.App.4th 400, 410.) In light of the overwhelming evidence in support of the courts decision to deny probation and cumulative nature of the statements in Dr. Rosoffs report, we conclude that beyond a reasonable doubt any error in the admission of the evidence did not result in the sentence imposed upon defendant, and was therefore harmless. (People v. Jenkins (2000) 22 Cal.4th 900, 1016; People v. Mitchell (2005) 131 Cal.App.4th 1210, 1225-1226; People v. Houston, supra, 130 Cal.App.4th 279, 295-296; People v. Schmaus (2003) 109 Cal.App.4th 846, 859.)
Accordingly, the judgment is affirmed.
We concur:
Stein, Acting P. J.
Margulies, J.