Opinion
A129265
09-28-2011
THE PEOPLE, Plaintiff and Respondent, v. ALBERT CASEY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Francisco City & County Super. Ct. No. 209967)
Following a jury trial, judgment was entered against defendant Albert Casey for failing to annually update his registration as a sex offender in violation of Penal Code, section 290.012, subdivision (a), and failing to register as a sex offender after an address change in violation of Penal Code section 290, subdivision (b). On appeal, defendant claims the trial court erred in: (1) holding competency proceedings without his presence; (2) failing to appoint a second mental health expert; (3) failing to order a new competency hearing due to a change of circumstances; and (4) imposing a four-year prison term based, in part, on his stated unwillingness to comply with the registration laws. Defendant further claims ineffective assistance of counsel at the sentencing hearing. We affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
B ACKGROUND
We set forth only those facts and circumstances relevant to the issues raised on appeal. In September 2009, defendant was charged by information with failing to annually update his registration as a sex offender (§ 290.012, subd. (a)), and failing to register as a sex offender after an address change (§ 290, subd. (b)). The information further alleged a prior strike offense (a 1978 rape conviction).
On November 2, 2009, defense counsel "declare[d] a doubt as to [defendant's] competency under 1368 of the Penal Code." Criminal proceedings were suspended, and the matter was continued to the following day, and then continued one more day, to November 4, 2009, for appointment of an psychiatrist. The court appointed Dr. David Kessler to examine defendant and report to the court, and set the matter for hearing on November 25.
Kessler reported defendant "declined to speak but during the course of the hour-long interview wrote out 8 pages of replies to question. These replies were coherent and relevant, with no hint of disorganization, mental deterioration or psychosis. He explicitly denied delusions or hallucinations . . . . He was clearly alert, oriented, and of above-average intelligence . . . . He indicated he was not receiving any psychiatric medications in jail." Kessler further stated defendant "demonstrates an impressive capability of understanding the nature and consequence of the proceedings against him, and of cooperating rationally with counsel if he chose to do so." He concluded defendant was competent to stand trial.
At the November 25, 2009, hearing, counsel waived defendant's presence and objected to Kessler's evaluation. After the trial court purported to find defendant competent, the assistant district attorney observed defendant had a right to a jury trial on the issue and a waiver was required. Defense counsel then requested a "competency trial," which the court set for December 4, 2009.
On December 4, 2009, the competency trial was continued to March 19, 2010. However, on February 16, 2010, defense counsel asked that the case be added to the March 2 calendar for a "Motion to Vacate Competency Trial."
The matter was duly called on the March 2 calendar. Counsel again waived defendant's appearance, withdrew the objection to Dr. Kessler's report and asked that the case be put back on the criminal calendar on a no time waiver basis for jury trial on the pending charges. The assistant district attorney stated he understood counsel to be agreeing to submit the matter of defendant's competency on "the reports" and asserted the reports compelled a finding defendant was competent to stand trial. On inquiry by the court, defense counsel said he was asking the court to find defendant competent. Based on Kessler's report, the trial court found defendant competent, vacated the date for the competency trial, and set the case for jury trial on the criminal charges on April 16, 2010.
Defendant failed to appear in court on April 16 when the case was scheduled to be sent out for trial, and counsel again waived defendant's appearance. Following an unreported sidebar conference, the trial court, pursuant to section 4011.6, ordered Jail Psychiatric Services (JPS) to examine defendant, and continued the matter to April 20.
JPS submitted a report which consisted of a pre-printed form with statements about a defendant's condition and, next to each statement, spaces for marks to indicate such statements applied. JPS marked only the last form statement—"Other recommendations or comments"—and noted: "[defendant] . . . is diagnosed with Personality Disorder Not Otherwise Specified as well as Elective Mutism. He is not on any medications and has been refusing to engage in most treatment offered, both psychiatric and medical." JPS did not mark the form statements indicating defendant had a "psychiatric impairment" or "mental health issues." JPS likewise did not mark the form statement that it "suspects that the client may be incompetent to stand trial."
On April 20, defense counsel again waived defendant's appearance and again declared doubt as to his competency. The case was transferred to another department for a hearing on April 26 to "see if the judge finds that there is substantial evidence to support a finding of incompetence."
On April 26, the matter was continued to April 28. On April 28, counsel again waived defendant's appearance and claimed a change of circumstances warranted another mental competency evaluation. Counsel stated that although defendant had previously communicated through written notes, he was now refusing "all visits" and refusing "to pass even notes." Defendant was also refusing to dress, which prevented him from being brought to court. Counsel asserted he was receiving "absolutely no assistance from" defendant in the defense of the case.
The trial court stated it had reread Dr. Kessler's report and there was "no indication whatsoever that [defendant] suffers from a mental disorder" and the section 4011.6 report indicated defendant was not on medication. Thus, while the court understood why defense counsel had again raised the issue of defendant's competency, there was no evidence defendant "ha[d] a mental disorder" and the court therefore declined to suspend criminal proceedings. The court offered to appoint an expert under Evidence Code sections 730 and 1017, but defense counsel declined, stating there was insufficient time before the last day for trial and defendant "can't even waive time because he won't come to court." The court sent the case back to the criminal trial department.
On April 29, 2010, defendant was again not present in court, and the case was continued to the following afternoon for jury selection. On April 30, 2010, a jury panel was sworn and the hardship process was commenced in anticipation of voir dire the following court day, May 3. The court also asked the bailiff to go "upstairs" to the jail and bring defendant to court for the commencement of his trial. The deputy returned without defendant, advising the court defendant had "elected not to come to court for his trial." The court then had the deputy testify as to what happened when he went to bring defendant to court. Defendant had been sitting on the toilet, with one arm on a wheelchair, and looked at the deputy in response to a knock on the cell window, but had then turned away. The deputy entered the cell and three times told defendant jury selection was starting, but defendant never responded. After the deputy's testimony, the assistant district attorney asked that on May 3, the bailiff also expressly tell defendant he had a right to attend his trial and, if defendant continued to refuse to respond, the deputy further tell defendant he could ask to be brought to court at anytime. The assistant district attorney also asked that on May 3, the court make a determination as to whether defendant was voluntarily absenting himself from the trial. The court and counsel then addressed evidentiary procedural matters, scheduling in limine motions for the morning of May 3 and Evidence Code section 402 hearings to be held as needed.
On May 3, 2010, the court heard in limine motions and took testimony in connection with a search and seizure issue. The court then turned to the issue of defendant's continued absence from the court room, again asking the bailiff to testify to his efforts to bring defendant to court. The deputy entered defendant's cell, told him jury selection was commencing and that he had a constitutional right to attend his trial. He twice asked defendant if he wanted to attend; defendant made no response. The deputy also told defendant if he changed his mind, he could ask to be taken to court at anytime. Defense counsel asked no questions, and made no objection to the court's finding defendant was voluntarily absenting himself from the trial. Counsel did ask, and was permitted, to tell the jury why there was an "empty chair" and that defendant was in custody but voluntarily refusing to come to trial.
Defendant also failed to appear in court the next two days of trial. On May 6, however, he came to court and testified. When defense counsel asked defendant why he "chose[] to be absent," defendant responded: "I was waiting for them to tell me what to do, to leave the cell and go with them to the court. They didn't do that. They kept asking me would I like to go. I respond to orders[,] not to questions." Defendant further stated he understood the charge against him was failure to register as a sex offender. The jury ultimately found defendant guilty on both counts and the prior conviction allegation true.
The sentencing hearing was held on May 28, 2010. Defense counsel submitted a sentencing memorandum and urged the court to give consideration to the fact defendant had finally come to court and told the truth about what he had done. Counsel urged defendant be given probation with credit for time served. Defendant also made a statement on his own behalf, expressing his belief that the sex registration laws are unfair: "[W]hat I believe to be right and wrong doesn't go along with what's legal and illegal . . . . If I have to go to prison because I'm doing something that's right, then that's more injustice than what's already been given to me." The assistant district attorney maintained defendant was ineligible for probation given his prior strike offense and, given his apparent lack of remorse for violating the registration laws, urged that defendant receive the midterm for the charged crimes. The court sentenced defendant to the middle term of two years for count 1, doubled for the prior strike, and stayed, under section 654, the same sentence on count 2. The court found "no circumstances in mitigation" and identified the following facts as aggravating factors: "The defendant's prior convictions as an adult are numerous and of increasing seriousness. The defendant has served a prior prison term. And the defendant continues to state his reservations and objections to his requirement to register as a sex offender."
DISCUSSION
Right to Be Present during Competency Proceedings
Defendant contends he had an absolute constitutional due process right to be present at all hearings pertaining to his competency to stand trial, and that this was a right he had to waive personally and could not be waived by counsel. He further asserts his absence from the competency hearings constituted either "structural" error, reversible per se, or prejudicial error under the beyond a reasonable doubt standard set forth in Chapman v. California (1967) 386 U.S. 18, 24 (Chapman). The Attorney General does not take issue with defendant's substantive assertion—that he had an absolute constitutional right to be present at all hearings pertaining to his competency, which could not be waived by counsel. Rather, the Attorney General maintains defendant forfeited this claim of error by voluntarily absenting himself from court, and even if he did not, there was no "structural" error and any error was harmless. Because we agree any error was neither "structural," nor prejudicial under the Chapman standard, we need not, and do not, address defendant's contention that counsel could not waive his appearance at hearings pertaining to his competency to stand trial. We likewise need not, and do not, address the Attorney General's assertion that defendant forfeited this claim of error by voluntarily refusing to appear in court.
"Although most errors in criminal proceedings are subject to harmless error analysis, the United States Supreme Court has identified a small number of 'structural' errors at trial—i.e., 'structural defect[s] affecting the framework within which the trial proceeds'—that are reversible per se. (Arizona v. Fulminante (1991) 499 U.S. 279, 310 . . . ; see People v. Stewart (2004) 33 Cal.4th 425, 462 . . . .)" (People v. Tena (2007) 156 Cal.App.4th 598, 612 (Tena).) Structural error is error that " 'def[ies] analysis by "harmless error" standards' " because the error has " 'consequences that are necessarily unquantifiable and indeterminate.' " (United States v. Gonzales-Lopez (2006) 548 U.S. 140, 148, 150.) Such errors " 'include: (i) "total deprivation of the right to counsel at trial"; (ii) trial by a "judge who was not impartial"; (iii) "unlawful exclusion of members of the defendant's race from a grand jury"; (iv) denial of the right to self-representation at trial; and (v) denial of the right to a public trial.' (People v. Stewart, supra, 33 Cal.4th at p. 462, quoting Arizona v. Fulminante, supra, 499 U.S. at pp. 309-310 . . . .)" (Tena, supra, 156 Cal.App.4th at p. 613.) However, even "an error that would constitute a structural defect at trial is not invariably reversible per se when confined to" a pretrial hearing. (Ibid.) Thus, improper denial of counsel or improper denial of the right to self-representation confined to a preliminary hearing, for example, is subject to the Chapman harmless error analysis. (Coleman v. Alabama (1970) 399 U.S. 1, 11; Tena, supra, 156 Cal.App.4th at p. 615.)
On this record, defendant's absence from the hearings pertaining to his competency did not have consequences that were " 'necessarily unquantifiable and indeterminate' " (United State v. Gonzales-Lopez, supra, 548 U.S. at p. 150), thereby affecting the "framework" of the case. (Arizona v. Fulminante, supra, 499 U.S. at p. 310.)
Indeed, in People v. Harris (1993) 14 Cal.App.4th 984 (Harris), we concluded the prejudicial error standard applies in circumstances like those here. The defendant in Harris appealed from an order finding him incompetent to stand trial and committing him for treatment. He challenged the order on several grounds, including that he was not present at the competency hearing despite the fact his counsel was present, waived his appearance and submitted on the report prepared by the court-appointed psychiatrist. (Id. at p. 993.) "Assuming arguendo" the defendant's "due process right to be present at all critical stages of the proceedings applie[d]," we observed it was "well established that an excluded defendant must demonstrate prejudice." (Ibid., citing People v. Price (1991) 1 Cal.4th 324, 408, superseded by statute on other grounds as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161-1165 [" 'A defendant claiming a violation of the right to personal presence at trial bears the burden of demonstrating that personal presence could have substantially benefitted the defense.' "]; accord, People v. Virgil (2011) 51 Cal.4th 1210, 1234 [defendant must show any violation of right to be present during critical stages of trial " ' "resulted in prejudice or violated the defendant's right to a fair and impartial trial," ' " quoting People v. Hines (1997) 15 Cal.4th 997, 1038-1039].) We concluded the defendant in Harris could not show such prejudice "because no testimony was presented at the hearing, and the matter was simply submitted on the expert's opinion. Appellant's presence alone could not have affected the outcome." (Harris, at p. 993.)
We reach the same conclusion in this case. As in Harris, no testimony was presented at the hearings pertaining to defendant's competency to stand trial, and the matter was submitted on Dr. Kessler's report. Accordingly, defendant's presence, alone, would not have affected the outcome. Furthermore, Kessler's assessment, the JPS section 4011.6 evaluation and, most importantly, defendant's own appearance and testimony at trial, as well as his appearance and statement at sentencing, all demonstrate defendant was competent to stand trial. Accordingly, there was no prejudicial error even under the heightened Chapman standard. (See Chapman, supra, 386 U.S. at p. 24.)
Nor are the circumstances that were of particular concern to us in Harris, present here. In Harris, the defendant's "real complaint [was] not merely that he was excluded from the [competency] hearing, but that his attorney proceeded to prove his incompetence without affording [him] the opportunity to testify in support of his claim that he was competent." (Harris, supra, 14 Cal.App.4th at p. 993.) We agreed that, "at a minimum, when defense counsel seeks to prove defendant's incompetence over his or her objection, and the defendant expresses the desire to testify that he or she is competent, counsel should permit defendant to so testify, unless the court separately determines that the defendant is incompetent to do so." (Id. at pp. 993-994.) There is no indication in the record here, however, that defense counsel ever acted contrary to defendant's wishes, let alone, sought to prove defendant was incompetent over defendant's objection and despite defendant's expressed desire to testify that he was competent.
Appointment of Second Mental Health Expert
Defendant also contends the trial court erred by failing to appoint a second mental health expert pursuant to section 1369, subdivision (a).
Section 1369 sets forth the procedures to be followed after counsel or the court, pursuant to section 1368, forms a doubt as to whether the defendant is competent to stand trial. (See People v. Bell (2010) 181 Cal.App.4th 1071, 1079-1080.) Section 1369, subdivision (a), states in pertinent part: "The court shall appoint a psychiatrist or licensed psychologist, and any other expert the court may deem appropriate, to examine the defendant. In any case where the defendant or the defendant's counsel informs the court that the defendant is not seeking a finding of mental incompetence, the court shall appoint two psychiatrists, licensed psychologists, or a combination thereof. One of the psychiatrists or licensed psychologists may be named by the defense and one may be named by the prosecution." (§ 1369, subd. (a).) The appointment of two experts "provides a minimum protection for the defendant against being incorrectly found incompetent to stand trial." (Harris, supra, 14 Cal.App.4th at p. 996.) Counsel or the defendant must expressly " 'inform[] the court' that the defense is not seeking a finding of incompetence in order to trigger the required appointment of a second mental health expert." (People v. Lawley (2002) 27 Cal.4th 102, 133 (Lawley).)
As we have discussed, on March 2, 2010, counsel made a motion to withdraw defendant's objection to Dr. Kessler's report and to reset the matter for trial on the pending criminal charges on a no time waiver basis. During the hearing, the trial court squarely asked defense counsel if he was asking the court to find defendant competent, and counsel said, "Yes, your Honor." While defense counsel certainly could have raised subdivision (a)'s requirement for appointment of a second mental health expert, he did not do so. Instead, he submitted the issue of defendant's competency to stand trial on the basis of Kessler's report. And based on that report, the trial court found defendant competent.
Again, the Attorney General does not take issue with defendant's substantive assertion—that a second mental health expert should have been appointed pursuant to section 1369, subdivision (a). Even assuming error, the Attorney General asserts it was harmless.
We agree no prejudicial error occurred here. We first observe the statutory requirement for examination by two mental health experts protects against an unfounded finding of incompetence. (Harris, supra, 14 Cal.App.4th at p. 996.) Defendant, however, was found competent, and thus did not suffer the consequence the statutory provision is meant to protect against. Furthermore, for all of the reasons we discussed above in connection with defendant's right to be present during hearings pertaining to his competency, failure to procure a second competency evaluation was not, on this record, prejudicial. Significantly, the JPS section 4011.6 evaluation and defendant's appearance and testimony at trial, as well as his appearance and statement at sentencing, were wholly consistent with Dr. Kessler's report, and all demonstrate defendant was competent to stand trial. Accordingly, there was no prejudicial error, whether considered under the Chapman standard (Chapman, supra, 386 U.S. at p. 24) or the reasonable probability of a more favorable result standard of People v. Watson (1956) 46 Cal.2d 818, 835-836. (See also Lawley, supra, 27 Cal.4th at p. 133, fn. 9 [no ineffective assistance of counsel where counsel failed to inform court defendant was not seeking a finding of incompetence; "the record fails to eliminate the possibility that counsel reasonably concluded the appointment of a another mental health expert would not benefit defendant"].)
Second Competency Hearing
Defendant additionally contends the trial court erred in failing to hold a new competency hearing due to a "change of circumstances." Specifically, defendant takes issue with the court's statement there was no evidence defendant suffered from a "mental disorder."
"When . . . a competency hearing has already been held and the defendant was found to be competent to stand trial, a trial court is not required to conduct a second competency hearing unless 'it "is presented with a substantial change of circumstances or with new evidence" ' that gives rise to a 'serious doubt' about the validity of the competency finding. (People v. Jones (1991) 53 Cal.3d 1115, 1153 . . . .)" (People v. Marshall (1997) 15 Cal.4th 1, 33.)
Here, the trial court agreed there were changed circumstances after the competency determination, namely defendant's refusal to dress and to communicate at all, even in writing. But, as the trial court went on to point out, there was no evidence of any change in defendant's competency to stand trial. On the contrary, defendant's conduct was consistent with Dr. Kessler's assessment and also with the JPS section 4011.6 evaluation.
That the trial court used the terminology no evidence of a "mental disorder" was also entirely appropriate given that section 1367 uses this precise language and specifies that: "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." (§ 1367, subd. (a).) While defendant insists the trial court took too narrow a view of "incompetence" to stand trial, the record indicates the court well understood the definition of this term and the appropriate focus of a competency hearing. To the extent defendant seems to be arguing the statutory definition of incompetence is too narrow as a matter of federal constitutional due process, he cites no case calling into question this provision. (See People v. Halvorsen (2007) 42 Cal.4th 379, 401 [citing and applying statutory standard].) Finally, even assuming there was any error in failing to hold another hearing, for all the reasons we have discussed it was harmless under either Chapman or Watson.
Unconstitutional Sentence
Defendant lastly contends the trial court sentenced him to the middle term, rather than the lower term, because of his stated disagreement with the sex offender registration laws, thereby violating his constitution free speech, due process and jury trial rights.
To begin with, defendant has waived this claim by failing to make any such objection at the time of sentencing. (People v. Scott (1994) 9 Cal.4th 331, 351.) Even had this claim been preserved, however, it has no merit.
We therefore need not, and do not, reach defendant's ineffective assistance of counsel claim based on the lack of any objection at sentencing.
Sentencing decisions are reviewed for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847 (Sandoval).) A defendant bears a heavy burden when attempting to show an abuse of discretion. (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) " 'In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.' [Citation.]" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) The court's sentencing discretion is informed by its evaluation of factors in mitigation and aggravation. (§ 1170, subd. (b).) These sentencing factors are weighed by the sentencing court to determine the prison term within the offense's sentencing range. (People v. Scott, supra, 9 Cal.4th at p. 349; Cal. Rules of Court, rule 4.420(b).) This wide discretion allows the court to balance the factors against each other in both qualitative and quantitative terms. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.)
Section 1170 provides that the choice of the appropriate term "shall rest within the sound discretion of the court. . . . The court shall select the term which, in the court's discretion, best serves the interests of justice." (§ 1170, subd. (b).)
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A sentencing court's discretion must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law and based on an " 'individualized consideration of the offense, the offender, and the public interest.' " (Sandoval, supra, 41 Cal.4th at p. 847.) The court may look at relevant circumstances obtained from the case record and the probation officer's report. (Cal. Rules of Court, rule 4.420(b).)
Here, the trial court appropriately engaged in an " 'individualized consideration of the offense, the offender, and the public interest.' " (Sandoval, supra, 41 Cal.4th at
p. 847.) Defendant's assertion that he was given the midterm as "punishment" for his opinion of the sex offender registration laws is not a fair characterization of the record, particularly given the presumption that the trial court acted to achieve legitimate sentencing objectives. Indeed, the very point the assistant district attorney made about defendant's statement at sentencing was that it indicated defendant would not follow the law and register, and that he lacked any sense of responsibility for his unlawful conduct ("defendant was still defiant"). It was entirely appropriate for the trial court to identify this as aggravating factor. (See People v. Holguin (1989) 213 Cal.App.3d 1308, 1319 [lack of remorse may be used as an aggravating factor when defendant admits the crime]; see also People v. Key (1984) 153 Cal.App.3d 888, 900 ["Where a defendant acknowledges guilt, but shows no remorse, he may be expected to repeat the criminal conduct under similar circumstances."].) Accordingly, defendant has not met his "heavy burden" to show an abuse of discretion in sentencing.
DISPOSITION
The judgment is affirmed.
Banke, J.
We concur:
Marchiano, P. J.
Dondero, J.