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People v. Calitri

Court of Appeals of California, Third Appellate District.
Nov 25, 2003
No. C042100 (Cal. Ct. App. Nov. 25, 2003)

Opinion

C042100.

11-25-2003

THE PEOPLE, Plaintiff and Respondent, v. BEAU BRONSON CALITRI, Defendant and Appellant.


Defendant Beau Bronson Calitri was convicted after a jury trial of making criminal threats (Pen. Code, § 422), assault (§ 240), trespass (§ 602.5), and vandalism (§ 594, subd. (a)). The court found a prior strike and a serious felony true within the meaning of sections 667, subdivisions (a)(1), (b)-(i) and 1170.12, subdivisions (a)-(d), and sentenced defendant to an aggregate term of nine years in state prison.

Further undesignated section references are to the Penal Code.

On appeal, defendant contends the trial court committed reversible error when it failed to immediately suspend proceedings pending a hearing to determine defendants competency to stand trial pursuant to section 1368. Because we agree with this contention and reverse the judgment of conviction, we do not reach defendants additional contention that there was insufficient evidence to support his conviction for making a criminal threat.

BACKGROUND

We will not recite the facts underlying the offenses as they are not pertinent to a resolution of this appeal. Instead, we summarize the relevant procedural facts.

We summarize the facts as recorded in the reporters transcript, rather than as abbreviated in the clerks transcript. Where the record is in conflict and cannot be harmonized, that part of the record will prevail which, because of its origin and nature, is entitled to greater credence. (People v. Smith (1983) 33 Cal.3d 596, 599.) In this case, we necessarily place greater reliance on the chronology of the courts statements reported as they took place in the courtroom, rather than on the subsequent summary of events by the court clerk.

A jury was impaneled and sworn for defendants jury trial on April 17, 2002. Trial was continued to April 30, 2002. The jurors were seated in the jury box and the prosecutor made his opening statement. Defense counsel then began his opening statement. As defense counsel started to recite what the testimony would show with regard to the alleged assault, defendant interrupted by saying, "No. Thats not what happened. No. Wait. Wait." Defense counsel then asked for a recess and the jury was sent into the jury room.

The court told defendant he would be given a few minutes to speak with counsel. Defendant responded, "Your Honor, thats not what I told [defense counsel] four weeks ago." A recess was then called to allow defense counsel to speak with defendant.

After the recess, but outside the presence of the jury, the following colloquy took place:

Defense Counsel: ". . . After talking — after the incidents that led to this session outside the presence of the jury, and talking to Mr. Calitri in the jail, I have serious doubts about his ability to effectively assist counsel under Penal code [s]ection 1368, and am requesting a mistrial, requesting he be evaluated by a psychologist."

THE COURT: "Mr. Calitri, you wanted to talk?"

DEFENDANT: "Yes."

Defense Counsel: "Your Honor, if he is going to talk, it should be in the context of a Marsden hearing. I dont think he will do anything but prejudice himself in talking on the record in front of the prosecutor."

THE COURT: "Whats the subject matter you want to talk about, Mr. Calitri, without getting into details?"

DEFENDANT: "The kind of counsel I am getting."

THE COURT: "Okay. Thats enough. [¶] We will go into closed session for a moment to discuss this issue between Mr. Calitri and his attorney, and then I will have the bailiff come and get you, [prosecutor], in a moment."

Prosecutor: "At the conclusion of the hearing, we are going to resume and talk about the other issues?"

THE COURT: "Sure."

The court then held a Marsden hearing. At the Marsden hearing, defendant stated that his attorney had only talked to him two or three times prior to trial, was not telling the jury his version of the events, and had not asked if he wanted to testify on his own behalf. Defense counsel then explained that the witnesses had been interviewed and that, other than defendants beliefs, there was no evidence to support his version of the events. Counsel explained he was presenting what he could prove and that he had advised defendant not to testify because it would be extremely detrimental to his case due to a prior manslaughter conviction.

People v. Marsden (1970) 2 Cal.3d 118 (Marsden).

Defense counsel continued his explanation as follows: "Quite frankly, Mr. Calitri is living in his own little world. The only set of facts that he is willing to accept is his version of the facts. He has essentially already proved [the prosecutor] right with his outburst in court. [¶] I have never had that happen. I have had prosecutors interrupt me in my opening statement, but I dont think I have ever had my client interrupt me. So basically he has destroyed any credibility I have before this jury. I think that there is something psychologically wrong with him that needs to be evaluated so that we can have a complete record. [¶] I have a lot of clients that tell me what their version of the story is. I investigate those issues, and I tell people this. I am not in a position where I can take what you tell me at face value, because if I do that, then I am not doing my job of evaluating the evidence and presenting the evidence that is going to benefit you. [¶] Mr. Calitri is in that situation. Of the 10 or 15 thousand clients I have had over the time that I have been doing this public defender work full time, hes the first one that has challenged that in open court. I am really uncomfortable at this point going forward in front of this jury, never knowing — I cant do it never knowing when my client is going to go off and basically prove the peoples case for them. Thats mental illness to me."

The court then gave defendant an opportunity to respond and defendant stated: "I have one more thing. I was arrested on the 21st of December. [Defense counsel] asked me to waive time because I told him what had happened. I gave him my version of the story. He says, `It looks like what I need to do is make a [sic] investigation and see if we can get this dismissed preliminary [sic]. [¶] He told me he would have his investigator go round up some people. He said, `There has got to be some people who saw what happened besides the people that are accusing you. [¶] I said `Okay. Thank you. [¶] Came prelim day, prelim day he wanted to waive the preliminary hearing. And I says [sic], `No, I dont want to. Why do you want to waive the preliminary hearing? I thought you said you were going to go do a [sic] investigation and come up with witnesses to bring to the prelim? [¶] He says, `Evidently, Mr. Calitri, I didnt have time. I was involved in a murder trial. [¶] He had me waive my right to a speedy trial, and then it comes back to my time for prelim hearing. He comes and tells me he didnt do what he had told me he wanted me to do, to get me to waive time because he was busy with another trial. He didnt do any investigation work for me. [¶] I also explained to him that I believed that someone else had called 911. I asked him to get the records of that phone call, and try to make that person my witness, because I would like to know what they saw, and he didnt do that." Defendant then reiterated that defense counsel was not presenting his version of the events and that he would not have waived his right to a speedy trial except that defense counsel had said he was going to investigate.

Defense counsel then responded that he did use an investigator, who began his investigation in January, that there was a preliminary hearing conducted on February 4, defendant was arraigned on February 19 and the case went to trial within 60 days thereafter. Defendant then said, "You told me you didnt do any investigation." Defense counsel then stated: "Mr. Calitri apparently has been having conversations with me that I wasnt present at, Your Honor. Its all part of the same thing." The court then indicated that it would not permit defendant to change attorneys in the middle of trial. The prosecutor then returned to the courtroom and the following exchange took place:

THE COURT: "[Prosecutor], I am not going to go into any of the confidential nature of the Marsden hearing, but the court has made a ruling that I am not going to change lawyers here during the course of the trial. I would like to hear your comments, however, on [defense counsels] motion for a mistrial."

Prosecutor: "As [the] court knows, what I can remember pursuant to [section] 1368, it has to be — regardless of whether or not [defense counsels] belief — I have no doubt its a good faith belief, but its up to the court. [¶] The court has to be convinced, pursuant to 1368, of [the] potential inability of the defendant to assist his attorney or meet the other criteria of [section] 1368."

The prosecutor then stated he opposed the motion, explaining that defendants outburst was "not necessarily a basis for a 1368, nor grounds for mistrial." Defense counsel responded that, although not qualified to determine whether defendant was mentally ill, he believed defendant was, "at the present time incapable of effectively assisting me in defending him" and that counsel did not know if defendants outbursts were volitional or not. Defense counsel said that this was the first time defendant had given him evidence of such irrationality and that he believed there should be a psychiatric evaluation.

The court ruled, "Motion denied. We will continue with the trial. I will give you the opportunity to make another opening statement if you wish." Defense counsel declined. The court then stated: "For the record, before the jury comes in, I will at the next recess give you, on the record, my reasons for the ruling, but I dont want to do it in front of the jury." Trial then resumed and two witnesses testified on behalf of the prosecution. Defendant made no further outbursts and there is no other unusual behavior reflected in the record.

At the next recess, the court made the following comments: "I said I would explain my ruling. The code, [section] 1368, states that whenever a defense counsel makes a statement to the court that he believes a defendant may be mentally incompetent, the court shall order that the question of the defendants mental competence is to be determined in a hearing — bla, bla bla, under [section] 1368. [¶] So it appears to me that the court has to make that evaluation once [defense counsel] informs the court. However, that code section, 1368, goes on to state further that if a jury has been impaneled and sworn at the time that happens, the jury shall be discharged only if it appears to the court that undue hardship to the jurors would result if the jury is retained on call. [¶] That implies to me that a motion for mistrial was not appropriate in that situation, but instead we would try to accommodate the jury, recess the hearing while the evaluation is made. That appears to me to be my reading of the law, and thats the reason for denial of the motion for mistrial. [¶] It also appears to me reasonable where we have witnesses standing by here in court, to finish up the days testimony before we make that referral. Here we had, for example, the witness from Montana, other witnesses. It seems reasonable to me, and I dont think I am construing [section] 1368 too strictly, or even too liberally, by saying that I think common sense would permit the court to finish up the days business before we make that referral. [¶] Thats the reason why I am doing what I am doing. We are going to finish up todays witnesses, and then I am going to tell the jury that we will come back in two or three weeks, whatever it takes for Dr. Lancaster to do the evaluation, and then we will resume the trial. Thats my plan."

Thereafter, the prosecutor called and examined another witness. At the conclusion of the witnesss testimony, the court discussed scheduling with counsel and the jury and then ordered the jury to return on May 17, 2002. The court then recessed, referring defendant to Dr. Thomas Lancaster for evaluation. The April 30, 2002, written order for examination pursuant to section 1368 was based on "there having been a doubt as to defendants mental competency."

Dr. Lancaster prepared a written psychiatric evaluation dated May 1, 2002, and filed with the court on May 9, 2002. Dr. Lancaster concluded that "Mr. Calitri knows his charges and he knows the different pleas, courtroom proceedings and personnel, and therefore is competent to stand trial." At the May 17, 2002, competency hearing, both the prosecutor and defense counsel submitted on the report and the court found "defendant is competent to stand trial."

Trial resumed and defendant was ultimately found guilty of making criminal threats, assault, trespass and vandalism.

DISCUSSION

I

A Defendants Right to a Competency Hearing

Section 1367, subdivision (a), provides: "A person cannot be tried or adjudged to punishment while that person is mentally incompetent. A defendant is mentally incompetent for purposes of this chapter if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner."

Section 1367 embodies the federal constitutional principle that a defendant "may not be put to trial unless he `"has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding . . . [and] a rational as well as factual understanding of the proceedings against him." [Citation.]" (Cooper v. Oklahoma (1996) 517 U.S. 348, 354 .) The prohibition against bringing to trial a defendant who is not mentally competent "is fundamental to an adversary system of justice." (Drope v. Missouri (1975) 420 U.S. 162, 172 (Drope).)

The principle in section 1367 is implemented by sections 1368, 1368.1, and 1369, which generally provide that, if a doubt arises in the mind of the judge as to the mental competence of the defendant, he or she shall order that the question of the defendants mental competence be determined at a hearing after the defendant has been examined by an appropriate expert appointed by the judge.

Section 1368 provides:
"(a) If, during the pendency of an action and prior to judgment, a doubt arises in the mind of the judge as to the mental competence of the defendant, he or she shall state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent. If the defendant is not represented by counsel, the court shall appoint counsel. At the request of the defendant or his or her counsel or upon its own motion, the court shall recess the proceedings for as long as may be reasonably necessary to permit counsel to confer with the defendant and to form an opinion as to the mental competence of the defendant at that point in time.
"(b) If counsel informs the court that he or she believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendants mental competence is to be determined in a hearing which is held pursuant to [s]ections 1368.1 and 1369. If counsel informs the court that he or she believes the defendant is mentally competent, the court may nevertheless order a hearing. Any hearing shall be held in the superior court.
"(c) Except as provided in [s]ection 1368.1, when an order for a hearing into the present mental competence of the defendant has been issued, all proceedings in the criminal prosecution shall be suspended until the question of the present mental competence of the defendant has been determined.
"If a jury has been impaneled and sworn to try the defendant, the jury shall be discharged only if it appears to the court that undue hardship to the jurors would result if the jury is retained on call.
"If the defendant is declared mentally incompetent, the jury shall be discharged."

Although subdivision (a) of section 1368 refers to a doubt that arises "in the mind of the judge as to the mental competence of the defendant," case law interpreting this subdivision establishes that when the court becomes aware of substantial evidence that objectively generates a doubt about whether the defendant is competent to stand trial, the trial court must on its own motion declare a doubt and suspend proceedings even if the trial judges personal observations lead the judge to a belief the defendant is competent. (People v. Pennington (1967) 66 Cal.2d 508, 518 (Pennington); People v. Jones (1991) 53 Cal.3d 1115, 1152-1153.) The trial court has no discretion on whether to order a competency hearing once there exists substantial evidence giving rise to a doubt regarding competency. (People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 69 (Marks).) If a trial court proceeds without holding a competency hearing, the defendant has been deprived of his or her due process right to a fair trial, the trial court has acted in excess of its jurisdiction, and the judgment is a nullity. (Id. at pp. 70-71; People v. Hale (1988) 44 Cal.3d 531, 541.)

II

Doubt as to Defendants Competence

Substantial evidence of mental incompetence is evidence that raises a reasonable doubt on the issue. (People v. Alvarez (1996) 14 Cal.4th 155, 211.) "[E]vidence of a defendants irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant in determining whether further inquiry is required [and] . . . even one of these factors standing alone may, in some circumstances, be sufficient. There are, of course, no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed; the question is often a difficult one in which a wide range of manifestations and subtle nuances are implicated." (Drope, supra, 420 U.S. at p. 180.) Mere bizarre statements or actions are generally insufficient to constitute substantial evidence raising a doubt as to the defendants competency. (People v. Burney (1981) 115 Cal.App.3d 497, 503.) Nor are "`statements of defense counsel that defendant is incapable of cooperating in his defense [citation] or psychiatric testimony that defendant is immature, dangerous, psychopathic, or homicidal or such diagnosis with little reference to defendants ability to assist in his own defense." (People v. Davis (1995) 10 Cal.4th 463, 527.) But in determining whether there is substantial evidence of incompetence, a court must consider all relevant circumstances, including counsels opinion. (People v. Howard (1992) 1 Cal.4th 1132, 1164.)

The People do not challenge the trial courts basis for ordering the evaluation. Instead, the People maintain that the trial court did not doubt defendants competence until after the first three prosecution witnesses had testified and the court suspended the trial pending the competency hearing. We cannot accept the Peoples interpretation of the facts.

All of the evidence suggesting defendants incompetence preexisted the testimony of the prosecutions witnesses. After the Marsden hearing and argument on defense counsels motion for mistrial, the court denied the mistrial motion and stated it would explain its reasoning later. There is no unusual behavior by defendant reflected in the record after this point and there is no reason to presume that the court planned to make new findings, rather than simply explain this ruling.

At the next recess, the court explained that the reason it denied the motion was it did not appear that a motion for mistrial was appropriate in the current situation, but instead it would try to accommodate the jury and recess while the psychiatric evaluation was made. The court, however, decided it would be reasonable to finish with the days witnesses before recessing for the psychiatric evaluation. At the very least, the trial court doubted defendants competence and determined a hearing was appropriate at this juncture.

"The trial judges ruling regarding whether a competency hearing is required should be given great deference. `An appellate court is in no position to appraise a defendants conduct in the trial court as indicating sanity, a calculated attempt to feign insanity and delay the proceedings, or sheer temper." (People v. Danielson (1992) 3 Cal.4th 691, 727, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13, quoting People v. Merkouris (1959) 52 Cal.2d 672, 679.)

Here, there is substantial evidence in the record to create a reasonable doubt that defendant may have been unable to assist counsel in the conduct of a defense in a rational manner. As defense counsel explained, defendant was only able to accept his own unsupportable version of the events. When defense counsel attempted to present the best possible case, defendant interrupted in open court and contradicted him, thus discrediting counsel and the case in front of the jury. There was no indication that defendant had any concept of the consequences of his outburst.

Defendant also insisted he had waived his right to a speedy trial to allow defense counsel time to investigate but that no investigation occurred. Yet, an investigation was undertaken and defendant did not waive his right to a speedy trial. Finally, defendant recounted conversations with counsel that did not occur.

Because the evidence was sufficient to raise a reasonable doubt as to defendants competence and did, in fact, raise a doubt in the courts mind, the trial court was required to hold a competency hearing prior to proceeding with trial.

III

Excess of Jurisdiction Requires Reversal

Having determined that the trial court was required to hold a competency hearing, we must conclude that the trial courts failure to proceed properly with a competency hearing requires reversal.

While the trial court eventually held a competency hearing wherein the defendant was found to be mentally competent, it did not immediately suspend the proceedings. Instead, the trial court permitted at least one witness to testify after determining a competency hearing was appropriate. Because the trial court failed to immediately suspend proceedings and assure that defendant was mentally competent after doubt had arisen, the trial court exceeded its jurisdiction and violated defendants due process right to a fair trial. (See Drope, supra, 420 U.S. at p. 172 [failure to observe procedures adequate to protect defendants right not to be tried while incompetent deprives him of due process right to fair trial].)

Whether we construe the trial courts actions as determining doubt existed as to defendants competence and deciding to order a competency hearing at the time it denied the motion for mistrial and indicated it would explain its ruling later, or at the time the court explained its ruling, the trial court still permitted at least one witness to testify after making its decision to order a competency hearing.

We note that, in this case, the psychiatrist made no attempt to determine defendants competence at the time the evaluation was ordered. Instead, the psychiatrist concluded that defendant was mentally competent at the time of his evaluation. Similarly, when the trial court held the competency hearing, it made no attempt to determine defendants competency at the time the first three prosecution witnesses testified. It is defendants present ability at the time of trial that is significant in any competency determination. (Dusky v. United States (1960) 362 U.S. 402 (Dusky); see also § 1368, subd. (a).) Because the trial court failed to immediately suspend proceedings, defendants competence at the time the witnesses testified was not determined, and the omission cannot be cured by a retrospective appellate determination of his probable competence at that time. (See Dusky, supra, 362 U.S. 402; Pate v. Robinson (1966) 383 U.S. 375, 387 .)

Moreover, "[u]nder section 1368 of the Penal Code the trial court has no power to proceed with the trial once a doubt arises as to the sanity of the defendant. In trying defendant without first determining at a hearing his competence to stand trial, the court both denied to defendant a substantial right [citations] and pronounced judgment on him without jurisdiction to do so." (Pennington, supra, 66 Cal.2d at p. 521.)

As the Supreme Court has explained, "[t]he trial court acts `without jurisdiction because its authority is constitutionally and statutorily restricted to holding a competency hearing before proceeding with any other matters. When the court fails to discharge this obligation, the resultant denial of due process is `so fundamental and persuasive that [it] require[s] reversal without regard to the facts or circumstances of the particular case. [Citations.] [Citations.]" (Marks, supra, 1 Cal.4th at p. 70.) "[T]he trial court does not lose subject matter jurisdiction when it fails to hold a competency hearing, but rather acts in excess of jurisdiction by depriving the defendant of a fair trial." (Ibid.) The result is an error that is per se prejudicial. (Pennington, supra, 66 Cal.2d at p. 521.)

The decisions of the California Supreme Court are binding on us. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) This is true even if our Supreme Courts decision rests on an issue of federal law. (See Midcal Aluminum, Inc. v. Rice (1979) 90 Cal.App.3d 979, 984, fn. 4, affd. sub nom. California Liquor Dealers v. Midcal Aluminum (1980) 445 U.S. 97 .) The trial courts failure to immediately suspend proceedings and its acceptance of trial testimony before holding the competency hearing renders the judgment in this case reversible per se.

DISPOSITION

The judgment is reversed.

We concur: MORRISON, J., ROBIE, J.


Summaries of

People v. Calitri

Court of Appeals of California, Third Appellate District.
Nov 25, 2003
No. C042100 (Cal. Ct. App. Nov. 25, 2003)
Case details for

People v. Calitri

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. BEAU BRONSON CALITRI, Defendant…

Court:Court of Appeals of California, Third Appellate District.

Date published: Nov 25, 2003

Citations

No. C042100 (Cal. Ct. App. Nov. 25, 2003)