Opinion
C094948
10-24-2023
THE PEOPLE, Plaintiff and Respondent, v. DONALD JAMES HAILEY, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. 20FE000183
BOULWARE EURIE, J.
Allegedly under the delusion that he was being chased by men who wanted to hurt him, defendant Donald James Hailey forced his way into a stranger's home on the street where he lived. Minutes later, the home was on fire. After a jury found him guilty of arson and not guilty of burglary, the trial court sentenced defendant to a term of 23 years in prison.
On appeal, defendant contends his convictions should be reversed because: (1) the trial court erroneously denied as untimely a motion to suppress cigarette lighters found in defendant's possession on the night of the fire; (2) if the trial court properly denied the suppression motion, then it should have granted a new trial motion based on the ineffective assistance of trial counsel in connection with the untimely filing; (3) trial counsel provided ineffective assistance by failing to ask the trial court to declare a doubt as to defendant's competence to stand trial; and (4) the trial court erred by excluding statements defendant made to the police officer who searched him and found the lighters. Defendant also contends (5) he is entitled to remand for resentencing given recent changes to law that went into effect after his sentence was imposed.
We reject defendant's challenges to his convictions, but agree he is entitled to resentencing. Accordingly, we will remand the matter for resentencing and affirm the judgment in all other respects.
BACKGROUND
In April 2020, an information charged defendant with burglary (Pen. Code, § 459), arson of an inhabited structure (§ 451, subd. (b)), and arson causing great bodily injury (§ 451, subd. (a)). The information also alleged defendant had a prior serious or violent felony conviction. (§§ 667, subds. (a)-(i), 1170.12.) After initially pleading not guilty, defendant changed his plea to not guilty by reason of insanity three months later, and then four months thereafter defendant withdrew his not guilty by reason of insanity plea and again entered a plea to not guilty before his psychological evaluations were completed.
Undesignated statutory references are to the Penal Code.
I
The People's Case
A. Sheila F.
On the evening of New Year's Day 2020, Sheila F. fell asleep in her bedroom after having dinner with her brother-in-law, whom she lived with and cared for. When her dog's barking woke her, she got out of bed and followed the dog to the locked front door of her home. When she went to her front door, she did not notice any smoke or flames coming from her brother-in-law's bedroom. Once she reached her front door, she saw a large male wearing a black hoodie charging toward her front door with his head down, like "a bull." Sheila F. screamed and hit a wall-mounted panic alarm as the man's arm struck a glass window and her front door came off its hinges.
Sheila F. ran back to her bedroom and escaped outside through a sliding glass door, yelling for help. She stopped yelling when she heard glass breaking, afraid the man had followed her outside and was going to kill her. From outside she saw her brother-inlaw sitting in his recliner in the living room. After hiding quietly for a bit, she ran to the nearby home of a married couple she knew. She did not smell smoke or see flames when she ran to her neighbors' home. Roughly 10 minutes elapsed from the moment Sheila F. fled her bedroom through the sliding glass door to the moment she arrived at the home of the married couple. As the wife called 911, the husband stepped outside and told Sheila F. her house was on fire. Sheila F. followed the husband outside and saw flames coming out of her brother-in-law's bedroom.
Sheila F.'s brother-in-law has cerebral palsy, and though able to maneuver through the house on his own at the time of the incident, he regularly slept in a recliner in the living room because that was easier for him. He kept his personal effects in his bedroom, which faced the street and was the closest bedroom to the front door. After firefighters pulled Sheila F.'s brother-in-law out of the burning house, two large wounds were found on his back. He was in intensive care for two weeks. Before the fire, he used a walker to get around the house. He could bathe and dress himself but after the fire, he was wheelchair-bound, and could not bathe or dress himself.
There were no candles in Sheila F.'s brother-in-law's bedroom, and he did not smoke or use incense. Sheila F. did smoke but had not smoked inside the house for 10 years before this incident. She had candles in the house, but only for decoration. She never lit them, and she did not use incense. Earlier that night, Sheila F. had seen the man who broke into her home. It was around 6:00 p.m. when she went outside to smoke. She noticed a large man she did not recognize wearing a black hoodie and standing in a neighbor's driveway. The man seemed to be drunk and she thought he may have been waiting for a ride. When Sheila F. finished her cigarette, she went back inside her home to a third bedroom, next to her brother-in-law's bedroom, and kept an eye on the man through the window. The man left eventually, and Sheila F. paid no more attention to the matter.
B. Sheila F.'s Brother-in-Law
Sheila F.'s brother-in-law testified he was sleeping in a recliner in the living room when he woke up, saw a man kicking the sliding glass door that led into the backyard, and heard Sheila F. screaming. He called 911. He had burn injuries on his back after the fire.
C. Fire Captain
A Sacramento Fire Department captain testified that he was in a fire truck that responded to Sheila F.'s home around 1:00 a.m. on January 2, 2020. As the truck approached the scene, he saw an individual in dark clothing with a hood walking in front of the garage of the burning house. Responsible for determining if the individual was a threat, the fire captain found "bizarre" and "eerie" the way the individual was walking in front of the house. The fire truck stopped so the firefighters could observe the individual, who went down the driveway, crossed the street, and walked down the street. As the captain notified dispatch that he saw an individual leaving the house, the fire truck rolled forward to deal with the fire.
D. Married Couple Nearby
The married couple whose home Sheila F. fled to testified at trial that they saw defendant around 6:00 p.m. that evening loitering on the street, and then saw him again about 20 feet in front of Sheila F.'s burning house after she fled to their home. The couple testified they both spoke to police that night, and the husband testified he told police defendant was the man he saw walking out of Sheila F.'s burning home.
E. Female Neighbor
A female neighbor testified that the first time she saw defendant in the neighborhood was on New Year's Eve. She saw defendant again around 5:00 p.m. on New Year's Day, "lingering around the halfway house on the corner," directly across the street from Sheila F.'s home. Later that night, she woke up to a smoky room. She went outside and saw smoke coming off the roof of Sheila F.'s house. She called 911 and saw defendant exit Sheila F.'s house as flames engulfed it. Walking toward Sheila F.'s home, the neighbor passed defendant walking in the opposite direction. He was about five feet away when she said to him: "What did you do? What the fuck did you just do?" Defendant had a smile on his face as he moved further away from the burning house.
The neighbor ended her first call to 911 when she saw the fire truck arrive, but she made a second call to 911 to tell police about defendant. That second call was played for the jury during the neighbor's testimony. In it, the neighbor tells 911 that a man wearing a black jacket had been lingering outside all day and that her neighbor whose house was on fire said someone broke into her home. She also told 911 that she saw the man in the black jacket walking out of her neighbor's house and did not recognize him. The 911 operator then says to the neighbor, "Okay. So I have the call entered." Later, the neighbor can be heard speaking to someone else and says, "He doesn't live there." The 911 operator then asks the neighbor, "Okay. The police are there. Can you talk to them?" The neighbor then replies, "Yes, I'm trying to." Moments later, the neighbor can be heard saying, "Officer, I saw that gentleman coming out of there . . . just before the house caught on fire."
F. Officer Cunningham
Officer Andrew Cunningham of the Sacramento Police Department was on patrol when he was dispatched to the incident around 1:07 a.m. He understood a residential burglary had occurred, and that "someone in black may have" started a fire and was walking away from the home. When Officer Cunningham arrived in his patrol car, he saw defendant wearing a black jacket and walking away from the burning home. Concerned he was a witness or "potential suspect," he asked defendant to stop. Defendant complied and Officer Cunningham then went to speak with neighbors standing in the street. After he spoke with the neighbors, Officer Cunningham returned to defendant, searched him, and found two lighters.
A silent video from Officer Cunningham's body camera that captured his first moments on the scene, including his first interactions with defendant, was played for the jury.
G. Fire Investigator
A fire investigator who examined Sheila F.'s home for the Sacramento Fire Department testified at trial that in his expert opinion, the fire started in the front bedroom, likely spread to the rest of the home in three to five minutes, and was extinguished 14 minutes after it began. The fire investigator further testified it was his opinion the fire was "maliciously set" with an open flame, and not caused by an electrical appliance, faulty wiring in an electrical outlet, candles, or incense. He explained that he found no evidence of any candles, cigarettes, "or anything like that" in the bedroom where the fire started. Thus, "other ignition sources ha[d] been ruled out. And there's clear evidence of an open flame being in the home at the time of the fire. [¶] There was forced entry to the home, which is a cardinal sign of an incendiary fire. There was a subject in the home. The subject that forced his way into the home had an open flame device": the two lighters police found in defendant's possession that night.
The investigator testified he disagreed with the conclusion in defendant's expert's report that the fire "should have been called undetermined." Specifically, he disagreed with the report's analysis that (1) a faulty electrical outlet could not be ruled out as the fire's cause and (2) a candle might have caused the fire in the bedroom because candles were found in other rooms of the house. "My opinion is we did take those factors into account and . . . appropriately ruled them out."
II
Defendant's Case
Defendant's theory at trial was that he forced his way into Sheila F.'s home to escape from men he believed had been following him for days, but he did not set the fire. He testified on his own behalf and called multiple witnesses, including a Sacramento police officer, who recounted defendant's paranoid statements and behavior in the hours leading up to the incident at Sheila F.'s home.
A. Defendant
Defendant testified before the jury that he had been staying at a house on the street where Sheila F. lived for about a week when, on December 30, 2019, he stepped outside to smoke a cigarette and noticed two men in a car staring at him. Later, around 4:30 p.m., he went outside to smoke again and saw the men staring at him while parked at a different location on the street. He went for a walk at 7:00 p.m. that day and noticed the men following him in the car. Worried, defendant rang the doorbell at the home of the married couple whose home Sheila F. fled to days later.
When the husband opened the door, defendant told him: "I think some guys are following me. I don't know what they want. I don't know if they're going to try to hurt me or try to kill me." Though the husband did not recall that conversation on the witness stand when defense counsel asked him about it, a police officer who responded to the fire testified the husband told him that a few days before the fire defendant asked to be let inside the man's home because people were trying to kill him.
Nothing unusual happened on December 31st, but when defendant was buying cigarettes at a store on New Year's Day 2020, he testified that he saw five men enter the store, including the two men who stared at and followed him on December 30th.
Defendant called an acquaintance and asked her to pick him up. She drove him to a police station. But since no one there answered the bell when defendant rang, he decided to walk to a nearby intersection to be around people. "I felt like nobody would do nothing to me with all these people around," defendant explained. As he walked to the intersection, defendant called 911. A patrol car came, and he felt safe.
The responding officers asked defendant to call someone for a ride. Eventually, a relative of the woman whose house defendant was staying at came to drive defendant home. But before he got home, defendant noticed the car that followed him on December 30th across the street. He called 911 a second time. Police responded and drove defendant home.
Later, defendant was smoking a cigarette at the end of the driveway where he lived when he saw three men with a dog walking toward him. He recognized the two men who had been sitting in the car on his street on December 30th.
It was "either fight or flight" in defendant's mind. Fearing there was no time to flee into the house where he was staying because he would not be able to open both the locked metal "crash gate" that covered the front door and the front door itself, defendant ran across the street to Sheila F.'s house. He decided to run through Sheila F.'s house because he thought the people chasing him would not follow him inside.
He forced his way through the front door into the living room, tried and failed to run through a sliding glass door, and then decided to run through the kitchen and into the garage, presuming the garage had a side door through which he would be able to leave the house. Unable to access the side door, defendant decided to hide in the garage and wait for police to arrive: "I figured sooner or later officers are going to show up. I ran in somebody's house, and I will explain why I'm here," defendant testified.
After about eight minutes, defendant smelled smoke. A minute later, he started choking on the smoke, which was so thick he could barely see. Defendant managed to feel his way out of the house. Firefighters and police arrived, and defendant felt safe. Defense counsel asked defendant if he started the fire. "No, I didn't," defendant answered.
B. Other Defense Witnesses
A police officer who responded to defendant's two calls to 911 on New Year's Day 2020 testified that during his interactions with defendant at 7:30 p.m. and 9:20 p.m. defendant appeared to be in a heightened state of alertness and said people were chasing him. It appeared to the officer defendant was having a mental health episode or was under the influence of narcotics.
Defendant's acquaintance who picked him up from the store on New Year's Day testified that in the years she had known defendant he never acted like he did that day. His paranoid behavior was unsettling. He was scared to come out of the store, asked to be driven to a police station, and worried people were following him.
The relative of the woman who owned the house where defendant was staying testified that when he went to pick up defendant on New Year's Day after the first 911 call, police asked him if defendant did drugs and advised him to take defendant to a hospital. Defendant acted strangely in the car ride. He was jittery and said someone was chasing him.
Defendant's expert witness was a fire investigator with the Sacramento Fire Department from 1991 to 1993. He testified the cause of the fire should have been "undetermined," because the investigation was insufficient to rule out multiple causes of the fire, and he did not believe Sheila F.'s assertion she only smoked outside her home. The defense expert explained that a smoldering item (like a cigarette) could have ignited into an open flame by drafts of air that occurred when defendant broke down Sheila F.'s front door and/or when Sheila F. opened the sliding glass door in her bedroom.
III
Closing Arguments, Verdicts, and Sentencing
A. Closing Arguments
The prosecutor argued defendant committed burglary by breaking into Sheila F.'s home with the intent to commit arson and then committed arson by willfully and maliciously starting a fire. Defense counsel conceded defendant forcefully entered Sheila F.'s home but argued he did so without any intent to set a fire (and therefore was not guilty of burglary) and did not purposefully start the fire (and therefore was not guilty of arson).
Section 459 provides, in relevant part: "Every person who enters any house . . . with intent to commit . . . any felony is guilty of burglary." (§ 459.)
B. Verdicts
The jury found defendant guilty on the two arson counts, and not guilty of burglary.
C. Sentencing
The trial court sentenced defendant to a term of 23 years in prison, consisting of the upper term of nine years for the offense of arson causing great bodily injury, doubled to 18 years due to the strike, plus five years for the enhancement for a prior serious felony. The trial court imposed a sentence of eight years for the offense of arson of an inhabited structure, doubled to 16 years, but stayed execution of that sentence pursuant to section 654.
Defendant filed a timely appeal. The matter became fully briefed in May 2023 and was assigned to this panel shortly thereafter.
DISCUSSION
I
Denial of the Motion to Suppress as Untimely
Section 1538.5, subdivision (h) contemplates the filing of a motion to suppress "during the course of trial" if "opportunity for th[e] motion did not exist or the defendant was not aware of the grounds for the motion" prior to trial. (§ 1538.5, subd. (h).) Because defense counsel filed a motion to suppress after trial began and gave an unpersuasive explanation for the delay that reflected a lack of due diligence, the trial court properly denied the motion as untimely.
A. Additional Background
In May 2021, after the jury was selected and sworn, defendant indicated to the court that it would be filing a motion to suppress the lighters found in defendant's possession on the night of the fire. After opening statements to the jury and the presentation of two witnesses in the prosecutor's case-in-chief, the court heard initial arguments on the procedural objections as to whether defendant's motion to suppress was timely. In response to the trial court's query whether the motion was untimely under section 1538.5, subdivision (h), defense counsel maintained it was timely because he was not aware of the grounds for the motion prior to the trial. Counsel explained that when in April 2020 the prosecution sent him body-worn camera footage from the scene, his attempt to download the material failed. More than a year later in preparation for trial, defense counsel attempted again to view the video, but it would not download. Counsel asked the prosecutor to send the footage on the date of the pretrial conference and she did.
Defense counsel explained: "I again attempted to download the body-worn camera and was successful at that time. I started looking through the body-worn camera during my downtime in the trial, and . . . yesterday . . . I got to the portion which involved Officer Cunningham's search of [defendant]. [¶] It contained -- it depicted a search which was not described in the police report. It, to me, just immediately jumped off the screen as being an unconstitutional search. [¶] . . . But until that time . . . I was not aware of the grounds for the motion. [¶] Certainly I was aware the two lighters had been seized from [defendant], but I think it's a reasonable assumption that, you know, there's no grounds for a suppression motion anytime evidence is seized from a [d]efendant. [¶] You need to know details about the search and the seizure itself, and I wasn't aware of that until I viewed the video yesterday."
Given that Officer Cunningham's detention of defendant and discovery of lighters in his pockets was raised at the April 2020 preliminary hearing, the trial court queried: "[W]hy would the defense call ready for trial if you've had . . . body cameras or in-car cameras since April of 2020 that you're unable to open?" Defense counsel answered he was trying to protect defendant's right to a speedy trial, even though time waivers had previously been entered. "I don't think it's unreasonable, your Honor, . . . for the defense to assume that when the police do a search, that that search respects a [d]efendant's Fourth Amendment rights."
The trial court stated it was "inclined to deny the motion for failure to show due diligence" required by case law, including People v. Frazier (2005) 128 Cal.App.4th 807 (Frazier), but allowed defense counsel to do more research before making a final ruling. When the parties and the trial court revisited the issue, defense counsel argued he exercised due diligence, and warned denial of the suppression motion as untimely would "open[ ] the door to a motion for a new trial." The trial court adopted its tentative ruling, denying the motion as untimely.
B. Analysis
Defendant argues the trial court erred by denying as untimely his motion to suppress. He contends trial counsel gave reasonable justifications for failing to file the motion before trial, and the trial court's determination counsel was not diligent in discovering the grounds for the motion rests on a flawed understanding of the applicable law. We disagree.
"The time limits for bringing a motion to suppress for a felony offense are found in Penal Code section 1538.5, subdivisions (h) and (i). Those [subdivisions] provide, '(h) If, prior to the trial of a felony or misdemeanor, opportunity for this motion did not exist or the defendant was not aware of the grounds for the motion, the defendant shall have the right to make this motion during the course of trial. [¶] (i) If the property or evidence obtained relates to a felony offense initiated by complaint and the defendant was held to answer at the preliminary hearing . . . the defendant shall have the right to renew or make the motion at a special hearing relating to the validity of the search or seizure which shall be heard prior to trial . . . unless the people are willing to waive a portion of this time.'" (Frazier, supra, 128 Cal.App.4th at p. 828.)
In Frazier, a panel of this court rejected the defendant's argument the trial court erred when it denied as untimely a motion to suppress brought on the first day of trial, explaining the denial was not error because the facts of the challenged searches "must have been within the knowledge of defendant" and counsel, who took on the case two months before trial, "presented no persuasive justification for the delay in bringing the motion." (Frazier, supra, 128 Cal.App.4th at p. 829.) Frazier observed that our Supreme Court recognized a due diligence requirement for a belated motion to suppress under section 1538.5, subdivision (h) in the case of People v. Martinez (1975) 14 Cal.3d 533, explaining our Supreme Court concluded that the fact that counsel did not know of the facts supporting a pretrial motion to suppress failed to meet the requirements of section 1538.5, subdivision (h), because counsel could have learned those facts before trial. (Frazier, at p. 828, citing Martinez, at pp. 537-538.)
Here, the prosecution gave defense counsel access to Officer Cunningham's body camera video in April 2020. Literally on the eve of trial in May 2021, defense counsel asked the prosecution to send the video again. Although counsel was already aware that two lighters had been taken from defendant the night of the fire, counsel argued he was unaware there was ground for a suppression motion until he viewed the video. Citing Martinez and Frazier, the trial court ruled counsel did not exercise due diligence and denied the motion as untimely.
Sufficient evidence supported the trial court's ruling, and defendant has not carried his burden on appeal to show the trial court erred. (See People v. Frederickson (2020) 8 Cal.5th 963, 1013 ["sufficient evidence supported the trial court's finding that defendant's motion to suppress the evidence was untimely"]; People v. Wiley (1995) 9 Cal.4th 580, 592, fn. 7 [an order of the lower court is presumed correct, and error must be affirmatively shown].) Trial counsel's explanation to the trial court for his delay in bringing the suppression motion was not persuasive and reflected a lack of due diligence. Assuming that a police search yielding incriminating evidence has complied with the Fourth Amendment is inconsistent with a criminal defense attorney's duty to investigate carefully the possible grounds for filing a suppression motion. (In re Neely (1993) 6 Cal.4th 901, 919; see ibid. ["a criminal defense attorney should investigate carefully the possible grounds for seeking the suppression of incriminating evidence"].)
Defendant offers no argument on appeal regarding trial counsel's articulated concern for defendant's speedy trial rights.
Defendant contends the observation in Frazier that Martinez recognized a due diligence requirement for a belated motion to suppress under section 1538.5, subdivision (h) is unsound because "Martinez never actually stated such a requirement or used the words 'due diligence.'" We are not persuaded. Frazier properly observed that Martinez recognized a due diligence requirement in effect. (Cf. People v. Frederickson, supra, 8 Cal.5th at p. 1013 [the defendant said "the paperwork confused him," but "did not claim . . . he had been provided erroneous or incomplete pretrial discovery and therefore was incapable of discovering the grounds for his motion" to suppress before trial].)
Defendant also contends Martinez was a "perfunctory opinion" that has "dubious precedential value" in part because it predates Strickland v. Washington (1984) 466 U.S. 668. We disagree. Our Supreme Court's rulings concerning the requirements of section 1538.5, subdivision (h) are binding on us. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [Supreme Court authority binding on inferior courts].)
II
Denial of the New Trial Motion
Because defendant failed to show prejudice from counsel's failure to file a timely suppression motion, the trial court properly rejected a new trial motion that was based on a theory of ineffective assistance of counsel.
A. Additional Background
Defense counsel brought a new trial motion after the jury verdicts, arguing he provided ineffective assistance by bringing an untimely motion to suppress the cigarette lighters, and the timely motion would have been granted because even if defendant consented to a patdown search when detained, Officer Cunningham went beyond a patdown search when he checked defendant's pockets and found the lighters.
At a hearing, the trial court asked defense counsel why the "inevitable discovery" doctrine did not apply. "You have the neighbor . . . who testified she confronted [defendant] as he was leaving the burning house, asked him what he just did, and her testimony was he smiled. [¶] The fire Captain . . . described it as the fire trucks arrived on the scene. The [d]efendant was, quote, bizarre and eery, closed quote, in the way he was walking in the street in front of the burning house. And Officer Cunningham testified when he arrived, the Defendant was walking towards him and matched the description of the individual in the 911 call." "[I]sn't the [d]efendant going to be arrested . . . and then there's . . . going to be a search pursuant to the arrest . . . ? Isn't he inevitably going to be searched, setting aside the consent issue?"
Ultimately, the trial court denied the new trial motion, ruling defendant was not prejudiced by counsel's "failing in not making a timely [m]otion." Officer Cunningham had probable cause to arrest defendant at the scene, the trial court reasoned, and the lighters would have been discovered in a search incident to that arrest. Even assuming for the sake of argument that the lighters were excluded, the trial court found it probable the jury would have convicted defendant even without the evidence of the lighters.
B. Analysis
Defendant argues the trial court's reasoning was flawed when it ruled defendant failed to show he was prejudiced by the untimely filing. He contends Officer Cunningham's search was "conducted at the very early stages during a detention, before Cunningham had any probable cause to arrest" defendant. Officer Cunningham had grounds for a limited patdown search, at most. defendant maintains, "It was not until after Cunningham seized the lighters from [defendant's] pockets that he had probable cause to arrest." Therefore, the trial court "should have granted" the motion to suppress. We conclude the trial court did not abuse its discretion by denying the new trial motion because defendant has not demonstrated a reasonable probability the jury would have failed to convict him of arson without the evidence of the lighters.
Strong circumstantial evidence of defendant's guilt made it highly unlikely a jury would have failed to render guilty verdicts on the arson counts even if the lighters had been suppressed. Therefore, because defendant failed to show prejudice from counsel's failure to file a timely suppression motion, the trial court properly rejected the new trial motion that was based on a theory of ineffective assistance of counsel. (People v. Hart (1999) 20 Cal.4th 546, 623-624 [to establish ineffective assistance of counsel, a defendant must show he or she was prejudiced as a result of counsel's deficient performance by demonstrating a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different]; People v. Watts (2018) 22 Cal.App.5th 102, 116-117 ["On a motion for a new trial, the defendant has the burden of showing both the ineffectiveness of counsel and the prejudice it caused"].)
We review a trial court's ruling on a motion for new trial for abuse of discretion. (People v. Thompson (2010) 49 Cal.4th 79, 140; People v. Ochoa (1998) 19 Cal.4th 353, 473.) In reviewing the denial of a motion for a new trial raising ineffective assistance of counsel claims, we uphold the trial court's factual findings if they are supported by substantial evidence, and we exercise our independent judgment on the legal issues. (People v. Taylor (1984) 162 Cal.App.3d 720, 724-725.)
"A trial court has broad discretion in ruling on a motion for a new trial, and there is a strong presumption that it properly exercised that discretion.' "The determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears." '" (People v. Davis (1995) 10 Cal.4th 463, 524.)
Whether or not the jury heard evidence that defendant had lighters in his possession, there was circumstantial evidence that he committed arson. As the trial court explained: "[I]n the middle of the night, a total stranger breaks into . . . [Sheila F.'s] house. And within moments thereafter, the house is on fire." "I don't see that the verdict would have been changed" had the lighters been suppressed.
Defense counsel argued to the jury that "[o]ut of millions of cases, there will be some cases like this one where there is a big coincidence that makes it look like somebody is guilty." (Italics added.) The jurors rejected defendant's one-in-a-million "coincidence" argument and we see no reasonable probability they would have accepted the argument in the absence of the lighter evidence. (Cf. People v. Thomas (1992) 2 Cal.4th 489, 514 [circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his or her guilt beyond a reasonable doubt]; People v. Freeman (1971) 20 Cal.App.3d 488, 491 [rejecting a claim of insufficient evidence of guilt where the defendant "call[ed] upon the jurors to believe" in a "fantastic coincidence"].)
Defendant contends the prosecutor's references to the lighters in closing argument supports the notion he was prejudiced. He also contends that, without the lighter evidence, he had a "meritorious defense because [he] could have argued that he had no means to set the fire without putting him on the stand to testify." Those contentions do not alter what we see as the fundamental calculus governing the jury's consideration of the strong circumstantial evidence of defendant's guilt.
III
Defendant's Competency to Stand Trial
Defendant argues his trial counsel was ineffective in failing to ask the trial court to declare a doubt regarding his competence to stand trial given his delusions before the fire at Sheila F.'s home. This claim is unpersuasive, especially in light of the standard of review on direct appeal.
A. Legal Background
1. Competency
The question of competency to stand trial asks whether a defendant"' "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding-and whether he has a rational as well as factual understanding of the proceedings against him."' [Citation.] This standard is codified in Penal Code section 1367, which precludes trial of a defendant who 'as a result of mental disorder or developmental disability . . . is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.'" (People v. Ghobrial (2018) 5 Cal.5th 250, 269 (Ghobrial).)
If a doubt arises in the mind of the judge as to the mental competence of the defendant, the judge must "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." (§ 1368, subd. (a).) If defense counsel informs the court that counsel believes the defendant "is or may be mentally incompetent, the court shall order that the question of the defendant's mental competence is to be determined in a hearing." (Id., subd. (b).) Evidence of mental illness alone is insufficient to raise a doubt as to defendant's competency to stand trial and" '[e]ven a history of serious mental illness does not necessarily constitute substantial evidence of incompetence that would require a court to declare a doubt.'" (Ghobrial, supra, 5 Cal.5th at p. 271.) And, an insanity defense, which implicates an assessment of a defendant's sanity at the time of committing a crime, presents issues distinct from the question of a defendant's competency to stand trial. (People v. Campbell (1987) 193 Cal.App.3d 1653, 1662, fn. 3.)
" 'Although trial counsel's failure to seek a competency hearing is not determinative [citation], it is significant because trial counsel interacts with the defendant on a daily basis and is in the best position to evaluate whether the defendant is able to participate meaningfully in the proceedings.'" (Ghobrial, supra, 5 Cal.5th at p. 273.)
2. Ineffective Assistance of Counsel Claims on Appeal
If the record on appeal" 'sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,' the [ineffective assistance of counsel] claim on appeal must be rejected." This is so, because "in general, it is inappropriate for an appellate court to speculate as to the existence or nonexistence of a tactical basis for a defense attorney's course of conduct when the record on appeal does not illuminate the basis for the attorney's challenged acts or omissions." Therefore, "a claim of ineffective assistance is more appropriately made in a habeas corpus proceeding, in which the attorney has the opportunity to explain the reasons for his or her conduct." (People v. Wilson (1992) 3 Cal.4th 926, 936.)
B. Analysis
Here, the record indicates defendant may have been delusional on New Year's Day 2020 when he committed his crimes. But the record does not suggest defendant was unable at his May 2021 trial to consult with his lawyer with a reasonable degree of rational understanding. The suggestion of a discrete delusional episode 17 months prior to trial that led to a temporary not guilty by reason of insanity plea, without more, does not amount to substantial evidence of incompetence to stand trial. (See People v. Ramos (2004) 34 Cal.4th 494, 508 ["a defendant must exhibit more than bizarre, paranoid behavior, strange words, or a preexisting psychiatric condition that has little bearing on the question of whether the defendant can assist his defense counsel"].)
Defendant contends in his reply brief that he exhibited "erratic and delusional behavior . . . during trial proceedings." We deem forfeited this contention which is unsupported by citation to the record. (United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 156.) Similarly, we deem forfeited the point raised for the first time in his reply brief that statements by a sheriff's deputy during trial that defendant was" 'nonconforming and disruptive . . . while in custody'" evidenced defendant's incompetence to stand trial. (People v. Baniqued (2000) 85 Cal.App.4th 13, 29 [a point raised for the first time in a reply brief is forfeited unless good reason is shown for failure to present it in the opening brief, as it deprives the respondent of an opportunity to answer it]; see People v. Barragan (2004) 32 Cal.4th 236, 254, fn. 5.) Even if we were to consider this point, we would reject it. Disruptive behavior in custody does not constitute substantial evidence of incompetence.
Defendant argues the absence of evidence supporting a conclusion he was incompetent to stand trial actually "establishes the prejudice" he suffered by trial counsel's failure to ask the trial court to declare a doubt. This is so, defendant reasons, because of "the possibility that [defendant] stood trial even though he may have been incompetent. We are unsure because counsel did not check." This argument is unpersuasive. "Counsel is not ineffective for failing to raise the issue of competence where there may be some evidence raising a doubt, but that evidence is not substantial." (People v. Mickel (2016) 2 Cal.5th 181, 200; id. at pp. 199-200 [rejecting the defendant's argument that trial counsel should be found ineffective as a matter of law for failing to request a competency hearing regardless of whether or not there was substantial evidence raising a doubt as to competence].)
Trial counsel was in the best position to determine whether defendant was able to participate meaningfully in the proceedings. (Ghobrial, supra, 5 Cal.5th at p. 273.) As nothing in the appellate record indicates counsel was asked to explain his decision not to ask the trial court to declare a doubt, we reject defendant's claim of ineffective assistance of counsel raised in this direct appeal. (People v. Wilson, supra, 3 Cal.4th at p. 936.)
We discern no discrete contention by defendant that there could have been no rational tactical purpose behind the decision not to ask the trial court to declare a doubt. Indeed, defendant was acquitted of burglary. And though defendant argues "there was no legitimate reason for counsel to assume" he was competent to stand trial after withdrawal of the insanity defense, Ghobrial teaches that trial counsel generally is in the best position to determine whether defendant can participate meaningfully in his defense.
IV
Exclusion of Defendant's Statements to Officer Cunningham
A. Additional Background
As described by the parties during a hearing in the trial court, footage from Officer Cunningham's body camera reflected that after he asked defendant to stay at the scene and spoke with some of Sheila F.'s neighbors (including the husband of the married couple and the female neighbor who testified at trial) he returned to defendant, searched him, found two lighters, and then asked defendant: "Why'd they say you came out of the house?" Defendant replied, "No they chased me in the house," Officer Cunningham then asked, "Who chased you?" Defendant replied, "They chased me in the house with dogs and everything."
Defendant sought to introduce his statements to Officer Cunningham as, inter alia, spontaneous statements made under the stress of excitement. (Evid. Code, § 1240.) But the trial court excluded the statements, ruling they were not trustworthy because defendant made them while being questioned by a police officer. (Evid. Code, §§ 1251, 1240.)
B. Analysis
Defendant contends the trial court erred by prohibiting introduction of the above statements he made to Officer Cunningham. The People disagree on the merits, and contend any error was harmless under People v. Watson (1956) 46 Cal.2d 818 because defendant cannot show a reasonable probability of a more favorable result if the statements had been admitted. We agree any error was harmless, but for a more basic reason: defendant was acquitted of burglary.
The excluded evidence was material only to the burglary count. There was no dispute that defendant entered Sheila F.'s home. The question was whether he did so with felonious intent. Since the jury acquitted defendant on the burglary charge, any error by the trial court in excluding defendant's statements to Officer Cunningham was harmless. (See People v. Benally (1989) 208 Cal.App.3d 900, 911-912 [admission of the defendant's statements to police officers, though contrary to Miranda v. Arizona (1966) 384 U.S. 436, was harmless beyond a reasonable doubt because the jury acquitted the defendant of the relevant charges]; People v. Harmon (1953) 117 Cal.App.2d 511, 517 [because the defendant "was acquitted of th[e] charge . . . he cannot complain of the improper admission of evidence relating to that count"].)
V
Resentencing
Defendant contends he is entitled to remand for resentencing in light of recent changes to the law that went into effect after his sentence was imposed, including Assembly Bill No. 518 (2021-2022 Reg. Sess.), which removed the requirement that a trial court impose the longest term of imprisonment for an act punishable in different ways by different laws. (Stats. 2021, ch. 441, § 1.) The People agree and concede that the trial court on remand can address all of defendant's sentencing claims. We accept the People's concession. And because the trial court may revisit all of its prior sentencing decisions on remand, we need not address defendant's argument regarding other recent changes in sentencing law. (See People v. Buycks (2018) 5 Cal.5th 857, 893 [when part of a sentence is stricken on review, full resentencing on remand as to all counts is appropriate].)
DISPOSITION
The sentence is vacated, and the matter is remanded for resentencing. If the trial court imposes a different sentence than that imposed at the initial sentencing, it is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: RENNER, Acting P. J. KRAUSE, J.