Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Tulare County No. VCF-01-0078451. Valeriano Saucedo, Judge.
Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
VARTABEDIAN, Acting P. J.
This is an appeal from judgment entered after a jury found defendant Joel Gomez guilty of multiple sex crimes. Defendant contends the trial court erred in refusing to conduct additional competency proceedings immediately before the trial. In addition, defendant contends the court used the wrong burden of proof to determine that he waived his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436), that the court inadequately instructed the jury, and that the court erred in denying defendant’s Wheeler/Batson motion (see Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258). Finding no prejudicial error, we will affirm the judgment.
Facts and Procedural History
Defendant is mildly mentally retarded. Just after he turned 18 years of age in 2001, defendant sexually molested the two daughters of his mother’s boyfriend. Both of the girls were under 14 years of age. They reported the events to their father, who then reported the matter to the police.
Defendant was charged with 10 counts of lewd and lascivious acts with a child under 14 years of age. (Pen. Code § 288, subd. (a).) The information also contained multiple-victim and substantial-sexual-conduct allegations. (See Pen. Code, §§ 667.61, subd. (b) & 1203.066, subds. (a)(7) & (a)(8).) Defendant was convicted as charged on counts one, three, and six through ten, and the enhancement allegations were found true, with minor exceptions. On counts two, four, and five, defendant was found guilty of attempt as a lesser included offense.
Defendant was sentenced to prison for a term of 17 years plus two consecutive terms, each 15 years to life. Defendant filed a timely notice of appeal.
Other facts directly pertinent to this appeal include the following:
A. The competency proceedings
Approximately 20 months after the filing of the original felony complaint, defense counsel moved the court for suspension of criminal proceedings and appointment of psychologists to evaluate defendant’s competency to stand trial. The court appointed two examiners and suspended criminal proceedings pursuant to Penal Code 1368. After an additional 18 months, on February 2, 2005, a jury trial on defendant’s competency to stand trial began. Four psychologists testified. Two said defendant was incompetent by virtue of his mental retardation and two said he was competent to stand trial, notwithstanding his disability. On February 8, 2005, the jury returned a verdict of competent to stand trial.
In August of 2005, defense counsel requested a new hearing on competency. He said he had just become aware that defendant was hearing voices and, in response to instructions by the voices, cutting himself with a razor blade. Medical records from the jail were submitted showing that defendant first reported hearing voices and first cut himself in 2003 and that these incidents occurred with some frequency thereafter, continuing at least through August 4, 2005. A medical report dated nine days before the hearing on the renewed motion stated that defendant was no longer hearing voices. Defense counsel also filed a declaration stating that he now believed he had made a mistake by not testifying at the original hearing. Counsel said he would testify now, and should have testified at the original hearing, that, “in my opinion, there’s almost nothing that I can communicate with this young man [defendant] that he understands.”
The court denied the motion for a further competency hearing. The court noted that the newly submitted evidence showed the periods of self-destructive behavior included periods during which defendant had been examined by the psychologist experts, that defendant had displayed no delusional behavior in court, and that the potential impact of testimony by defense counsel was speculative (“I have no way of knowing whether it would have made a difference or not.”)
Defendant filed a petition for writ of mandate in this court. We denied the petition on the basis that defendant had “failed to show that his declarations present any significant new facts which could have affected the experts’ opinions or the inferences from the facts presented during the prior proceeding regarding the nature of [defendant’s] understanding of the criminal proceedings. [Defendant] has failed to explain how the new circumstances indicate that [defendant] is now incompetent to stand trial.” (Joel Gomez v. Superior Court of Tulare County (Aug. 19, 2005, F048673).)
After defendant was convicted, counsel moved for a new trial on the basis of the trial court’s denial of the motion for a second competency hearing. The new-trial motion was denied.
B. Motion to exclude defendant’s statement to police
At the criminal trial, defendant moved to exclude his statement to investigating officers on the basis that he did not validly waive his Miranda rights. He argued that the declaration of the psychologist who had seen defendant at various stages of his life concluded that defendant had the mental capabilities of a 12-year-old child and that he therefore could not have given a knowing, voluntary, and intelligent waiver of his Miranda rights. The trial court noted that defendant had been found competent to stand trial and that there was no evidence from which the court could conclude defendant had been “incompetent” at the time of the police interview. The court denied defendant’s motion to exclude the statement, and a recording of the statement was played to the jury during the criminal trial.
C. Composition of the jury
During selection of the jury in the criminal trial, defendant alleged the prosecutor was using peremptory challenges to remove Hispanic prospective jurors. Counsel pointed out that four of the five prospective jurors challenged by the prosecutor were Hispanic, as is defendant. The trial court denied the motion and the renewed motion. The trial court stated it had “observed [the jury selection] and I’m satisfied that there’s been no violation here.” Eight of the 12 members of the seated jury had Hispanic surnames, as did two of the three alternate jurors.
D. The “idiocy” instruction
The jury was instructed with CALJIC No. 4.47 (“Defense of Idiocy”). That instruction tells the jury that, in the law, “[a]n idiot is a person who lacks capacity to commit crime, and therefore is not responsible for what would otherwise be criminal conduct.” As relevant here, the instruction states that the defense is applicable when, as a result of “mental deficiency,” the defendant was incapable of “[d]istinguishing right from wrong” at the time of the commission of the alleged crime. Defendant did not request modification of the instruction. The jury impliedly rejected the defense of idiocy.
Discussion
A. Competency
It is clear that an incompetent defendant cannot be tried in criminal proceedings. (Pen. Code, § 1367, subd. (a); People v. Dunkle (2005) 36 Cal.4th 861, 885.) It is also clear that criminal proceedings must be suspended whenever a defendant becomes incompetent, even if the defendant previously has been found competent; in other words, the issue of competency addresses the defendant’s current mental state, not the defendant’s psychological history. (See id. at p. 895; Pen. Code, § 1368.)
Nevertheless, once a jury has determined a defendant is competent to stand trial, the trial court is required to revisit the issue only if there is substantial new or additional evidence that casts significant doubt on the defendant’s present competence. (People v. Medina (1995) 11 Cal.4th 694, 734.) Defendant contends there was such evidence in the present case and that the trial court erred in failing to suspend criminal proceedings for a new competency determination. We disagree: There simply was no evidence that defendant’s condition had deteriorated between the February 2005 determination of mental competence and the July 2005 renewal of the competency question by defense counsel.
First, the evidence presented to the court in July of 2005 purported to show that defendant now suffered from delusions of voices telling him to harm himself. In reality, the evidence showed he had suffered these delusions intermittently since 2003, prior to the interviews with the competency examiners. While the examiners apparently were not aware of this mental health issue at the time of their evaluations, they based their conclusions in part on defendant’s ability to communicate with them at the interviews. There was no attempt to show how the evaluators’ knowledge of the delusional episodes would have changed the fact that defendant communicated with the evaluators in the way he did.
Nor was there any evidence from counsel that defendant’s delusions additionally inhibited his ability to comprehend events and communicate with counsel. (See People v. Dunkle, supra, 36 Cal.4th at p. 890 [existence of mental illness not determinative of competency to stand trial].) Counsel merely reiterated that “I have always had concerns about his mental capacity and competence.” The new evidence did not establish that the delusions inhibited defendant’s communications or cognition in any way. Defendant was aware the voices were self-generated, he resisted the voices’ instructions to harm himself and his cellmate (although his resistance was not always successful), and he was able to communicate with jail staff about the problems.
Second, the evidence showed that defendant was on medication and had not experienced delusions during the days leading up to the trial. Accordingly, the new evidence did not raise doubt about defendant’s competency to stand trial.
The trial court did not err in denying defendant’s motion for renewed competency proceedings. In addition, the court did not err in denying the motion for new trial, which motion was premised upon the claim that the court should have granted the earlier motion to reopen the competency issue.
B. Miranda waiver
Defendant contends the trial court prejudicially erred in imposing upon the defense the burden of proving that defendant’s waiver of his Miranda rights was not knowing, voluntary, and intelligent. In addition, defendant contends the trial court improperly relied on the earlier competency proceeding as res judicata for the waiver issue. We conclude that any error was not prejudicial.
First, and the foremost consideration on this issue, is the complete absence of any evidence defendant’s waiver of rights after the Miranda admonitions was not knowing, voluntary, and intelligent. By contrast, the transcript of the interview shows both the proper admonitions by the police officer and defendant’s responses, which are appropriate and demonstrate understanding of the admonitions. Because the transcript is the only evidence on the issue, and because it establishes prima facie a knowing, voluntary, and intelligent waiver, it does not matter who had the burden of proof: the only evidence before the trial court supported admitting the statement into evidence. (See, e.g., People v. Cruz (2008) 44 Cal.4th 636, 668.)
Second, as the prosecutor argued below, the interview was not custodial. Accordingly, there was no requirement for Miranda admonitions and no resulting requirement for waiver of the enumerated rights. (People v. Storm (2002) 28 Cal.4th 1007, 1026-1027.) Defendant did not claim in the trial court that the interview was custodial for Miranda purposes, but contended instead that the issue of custody was irrelevant because he did not “knowingly and intelligently waive his rights.” While defendant enumerates the various considerations that make an interview custodial or noncustodial for these purposes, he does not contend there is any evidence in the record to show the interview was custodial. As with the waiver issue, the only evidence before the trial court was the testimony of the police officer and the transcript of the interview, which clearly establishes, in the absence of any other evidence, that defendant was not in custody.
C. Composition of the jury
Defendant contends the trial court erred by deferring the inquiry into the prosecutor’s exercise of peremptory challenges to potential jurors. The trial court, according to defendant, determined that defendant had not established a prima facie case that the prosecutor excluded jurors, reasoning that defendant was merely speculating whether Hispanic-surnamed individuals were, in fact, Hispanic.
While the trial court did engage counsel in a generalized discussion of what might constitute a Hispanic juror for these purposes, it also stated it had “observed” the jury selection and that “there’s been no violation here.” When we review the voir dire transcript, the basis for the court’s statement is readily apparent: Of the four excused jurors, three presented a strong potential for sympathy for the developmentally disabled defendant. One was a school psychologist, one was a special education aide who had worked for six years with male developmentally disabled clients (she said, “And my heart goes out to them”), and the developmentally disabled nephew of the third was in prison for a similar crime. Further, the prosecutor’s fifth peremptory challenge was to a non-Hispanic who said her developmentally disabled cousin did not really have any control over his occasional violent conduct and that the cousin did not “really realize[] what he was doing.” The fourth excluded Hispanic juror displayed a limited ability to communicate in English.
On this record, the trial court correctly concluded that simply counting the numbers of excused Hispanic jurors did not result in a prima facie case that the prosecutor had exercised peremptory challenges on the basis of jurors’ race or ethnicity. (See People v. Bonilla (2007) 41 Cal.4th 313, 342.)
D. The “idiocy” instruction
Defendant contends the trial court erred in instructing the jury with an unmodified version of CALJIC No. 4.47 as it existed at the time of trial. That instruction excuses otherwise criminal conduct if, among other reasons, a person suffers from mental deficiency to such an extent he or she is incapable of distinguishing “right from wrong.” (See CALJIC No. 4.47 (Oct. 2005 ed.).)
In 2006, the instruction was changed to reflect similar changes in the instruction on the insanity defense, CALJIC No. 4.00. (See com. to CALJIC No. 4.47 (Fall 2007-2008 ed.) p. 189.) The changes in CALJIC No. 4.00 were made in response to People v. Torres (2005) 127 Cal.App.4th 1391.
In that case the jury was instructed that a defendant is insane if, by reason of mental disease or defect, he was incapable of distinguishing “‘right from wrong at the time of the commission of the crime.’” (People v. Torres, supra, 127 Cal.App.4th at p. 1400.) The trial court modified the instruction, however, adding: “‘The term “wrong” refers to both legal wrong and moral wrong. The concept of moral wrong refers to society’s generally accepted standards, and not to the subjective standards of the defendant.’” (See ibid., italics omitted.)
The Court of Appeal concluded that a defendant does not have to prove an inability to distinguish both legal and moral right from wrong; inability to distinguish moral right and wrong is sufficient. (People v. Torres, supra, 127 Cal.App.4th at p. 1402.) The instructional error was prejudicial in Torres because there was evidence that, even though he knew killing was illegal and he would be arrested, defendant thought killing the intended victims was justified because he was stopping a greater evil. (Id. at p. 1399.) Because the evidence would permit a jury to determine that defendant could not distinguish moral right from wrong, the instruction was prejudicial. (Id. at p. 1402.)
There are two points to be made about Torres. First, the case did not hold that either CALJIC No. 4.00 (or its analog here, 4.47) was in any way defective. It was the trial court’s modification of the instruction to introduce a requirement of incapacity to recognize both legal and moral wrong that was in issue. Second, the error in that case was prejudicial only because of the unique fact that some of defendant’s experts said he did not recognize the moral wrongness of his acts because of his delusions, even though he recognized their legal wrongfulness.
In the present case, defendant does not cite any authority for the proposition that the jury must be instructed on separate concepts of legal and moral wrong. The instruction in the present case did not limit the jury’s consideration to “legal right and wrong,” nor did it require a separate finding concerning legal and moral right and wrong.
Further, the evidence does not provide a basis, as it did in Torres, to conclude defendant could not distinguish between moral right and wrong even though he was able to distinguish between legal right and wrong: when asked in his interview if he knew it was wrong to touch the girls, defendant said he knew it was wrong because they “were little.” In other words, defendant offered no moral justification for his acts, whether delusional or otherwise.
The instruction as given in this case was not erroneous and even if, for purposes of argument, the instruction should have distinguished between legal and moral wrong, any error was not prejudicial.
Disposition
The judgment is affirmed.
WE CONCUR: CORNELL, J. KANE, J.