Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kings County. Louis F. Bissig, Judge, Super. Ct. No. 06CM7118
John Hardesty, 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, Louis M. Vasquez, Brian Alvarez, and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Wiseman, Acting P.J.
While he was an inmate at Corcoran State Prison serving two consecutive sentences of 25 years to life under the three strikes law, defendant Robert Daniel Perry attacked two prison guards and was convicted of two counts of battery on nonconfined persons. For these offenses, he received two additional consecutive three strikes sentences of 25 years to life.
Before his trial, defendant underwent a psychological evaluation and was found competent to stand trial. On appeal, he argues that the trial court erred when it did not suspend the proceedings on its own motion and order a second competency evaluation in response to irrational behavior he engaged in while representing himself at trial. He also argues that his counsel at the first competency hearing rendered unconstitutionally ineffective assistance when he failed to object to the doctor’s report on the ground that it was inadmissible testimonial hearsay under Crawford v. Washington (2004) 541 U.S. 36. We disagree and affirm.
FACTUAL AND PROCEDURAL HISTORIES
In 1981, defendant pleaded guilty to three counts of assault with intent to commit rape. (Pen. Code, § 220.) He was sentenced to six and two-thirds years in prison. In 1998, he was convicted of three more offenses: making a criminal threat (§ 422), stalking (§ 646.9, subd. (a)), and extortion (§ 524). For the criminal-threat and extortion counts, he received two consecutive sentences of 25 years to life pursuant to the three strikes law.
Subsequent statutory references are to the Penal Code.
Defendant was serving the three strikes sentences at Corcoran on July 6, 2005. Guards were escorting him to his cell block after his weekly program status review committee meeting that day. Though handcuffed and shackled, he was able to seize one of the guards, Officer Logue, by the neck, knock her down, and fall on top of her. When a second guard, Sergeant Gomez, pulled him off, he bit Gomez’s finger. Defendant was subdued after a third guard arrived with pepper spray. Officer Logue sustained a black eye and abrasions. Sergeant Gomez’s finger was severely lacerated.
The district attorney filed an information charging defendant with two counts of battery by a prisoner on nonconfined persons. (§ 4501.5.) The information also alleged that defendant had been convicted of four prior serious or violent felonies within the meaning of the three strikes law. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)
At a pretrial conference, defendant’s appointed counsel informed the court of his belief that defendant was not competent to stand trial:
“The parents are concerned, as are—or not the parents, but other family members are concerned and have provided me with some information about Mr. Perry’s psychiatric history.
The court ordered a competency evaluation and appointed counsel for a competency hearing.
Luis H. Velosa, M.D., examined defendant at the courthouse and wrote a report, which found defendant was able to understand the nature and purpose of the proceedings and able to cooperate with counsel in a rational manner in presenting his defense, and therefore competent to stand trial. During the examination, Dr. Velosa found defendant “cooperative” and “able to answer the questions in a relevant and appropriate manner.” He found no evidence of psychosis or of bizarre, disorganized, or schizophrenic behaviors. When asked, defendant was able to explain what the charges were against him. The report described defendant’s mental status as follows:
The report also noted that, during the examination, Dr. Velosa asked defendant about the alleged current offenses; defendant replied, “‘my public defender told me not to talk about these charges and perhaps this is the only good advice I have had from him.’” Dr. Velosa asked for an explanation; defendant said he thought his attorney was not doing his job. When Dr. Velosa asked why not, defendant said:
At the hearing, counsel for both sides agreed to submit the issue of defendant’s competency without argument. Relying on the report, the court found defendant competent to stand trial.
At the arraignment, defendant requested to represent himself. Defendant executed a waiver of his right to appointed counsel and the court granted his request. During these proceedings, the prosecutor placed on the record a plea offer that defendant had not accepted. The offer was to plead guilty to one count and receive a sentence of six years that would be served at 80 percent time and would not count as a new strike.
On the first day of trial, before the trial began, defendant told the court he wanted an attorney after all, but not the one he had before he requested self-representation:
The court replied that defendant had no right to appointment of counsel at the last minute after he had elected to represent himself. The court was, however, prepared to appoint counsel on the spot and proceed immediately to trial. It explained that counsel would be at a disadvantage, having had no time to prepare. Defendant was hesitant, stating that he had “the feeling that [his previous counsel] is behind everything,” but was ready to accept the new lawyer, provided he could still cross-examine prosecution witnesses himself. The court explained that this would not be possible; if defendant accepted appointment of counsel, counsel would be handling the whole case. Defendant then elected to continue representing himself.
Defendant’s opening statement consisted of a series of remarkable claims, at least some of which were intended to show that the prosecution’s witnesses had a motive to lie:
“MR. COOK [the prosecutor]: Objection.
sic sic“THE COURT: All right.
“You will also hear testimony that my family ordered the California Department of Corrections to give me an emergency transfer to a safe—out of CSP Corcoran SHU to a safe house for my own protection.
“Ladies and gentlemen of the jury, you will also hear testimony that [a Superior Court judge in another case] told me he would never let a Niger [sic] loving bitch testify in his courtroom. [That judge] told me if I ever took the witness stand and testified on my own defense that he would kill me. And that ladies and gentlemen of the jury, I have that all caught on tape.
“Ladies and gentlemen of the jury, you will also hear testimony that I have a $1 billion lawsuit against the California Department of Corrections, and that $100 billion lawsuit that I have against the Department of, the California Department of Corrections ladies and gentlemen of the jury, that is all caught on tape.
“I have all that evidence, your Honor.”
During his cross-examinations, defendant asked each of the prosecution’s three witnesses—all were prison guards who were present when defendant committed the current offenses—why they were covering up his alleged gang rape by prison guards. Of one witness, he asked, “Officer …, you knew, you knew I have AIDS, but yet you kept calling me a faggot; why?” Of one guard, he asked questions intended to show that she was not present at the time of the current offenses. He asked another guard whether it was really he who attacked defendant, not the other way around.
A somewhat more coherent story emerged when defendant took the stand and gave narrative testimony in his own behalf. He began by claiming he had attempted suicide and was being held in the prison hospital for observation before he was taken to the program status review committee meeting:
Defendant said he then told the committee members about a lawsuit:
According to defendant, the guards retaliated against him for these statements on the way back to his cell:
At this point, defendant attempted to introduce some documents into evidence. One of these apparently pertained to his desire to commit suicide:
“THE COURT: This is something you’re wishing to offer?
Then defendant described the basis of one of his lawsuits, apparently a claim that he had been raped by guards a few days earlier in retaliation for a different lawsuit:
“Then, then, hum, the next night, [the same officer] and four other, and three other officers took me down, blindfolded me, handcuffed me, shackled me, beat me up, and I had this whole side right here was, was, hum, a mess, bloody. They, hum, they, pulled—they took me out in boxers, both nights I was in boxers. The took me, pulled down my boxers, and, hum, went ahead and—I felt, I felt something—I got all this in the lawsuit. I felt something wet and warm on my rectum. Then went ahead and they penetrated. I don’t know if it was them. They know, they know I have AIDS, so I don’t think they—hum, they, hum, they, they raped me by a foreign object, that’s what it was.”
Defendant claimed he was housed in the hospital for three days after this to recover from the beatings and then returned to his cell. He told someone he was going to commit suicide, so he was taken to the hospital again, where he was housed on the day of the current offenses.
Defendant also mentioned threats he made against his lawyers or other individuals involved in his lawsuits. He implied that he was trying in the present case to get some kind of relief related to those cases:
Defendant mentioned Montel Williams, Donald Trump, Oprah Winfrey, and Bruce Gordon again. He said he had written to them and they had written back, but his former counsel had refused to give him the letters. He had also been expecting the “Inspector General” and some attorneys to testify on his behalf.
On cross-examination by the prosecutor, defendant claimed that he had nothing to do with the two guards’ injuries and that they had not been among the guards present on the day of the current offenses. He said they testified falsely against him because of his plan to get all the guards fired via lawsuits. He added that, during the beating he received on the day of the current offenses, he was beaten unconscious three times and revived each time with cold water to receive additional blows. He claimed that a sergeant said, “I don’t want Robert Perry walking to his cell. You do whatever—I don’t want him walking.”
In additional narrative testimony on redirect, defendant stated that he had tried to commit suicide at two other prisons and had been “trying to commit suicide ever since 1998.” He also asserted that his family “ordered” the Department of Corrections to give him an “emergency transfer” from Corcoran to a “safe house in Tehachapi .…” When he was brought back from Tehachapi to Corcoran, he “thought they were going to settle [his] $1 billion lawsuit,” but found out instead that the charges in the current case were being filed.
To summarize, defendant’s testimony was that he was in the hospital on the day of the current offenses, having threatened and attempted suicide. Guards shackled him, put him in a wheelchair, and took him to his program status review committee meeting. At the meeting, he discussed lawsuits, including one based on his rape by prison guards. Afterward, the guards beat and kicked him in retaliation for his statements in the meeting. Later, he thought the prison was going to settle one of his lawsuits, but found that the current charges were being brought instead. The allegations against him were fabrications by the guards, who were angry about the lawsuits. Celebrities, officials, and attorneys had given him reason to believe they would appear as witnesses at the trial.
Defendant called the prosecution’s three prison-guard witnesses for direct examination as part of his case-in-chief. He asked them essentially the same questions he had asked on cross-examination during the People’s case.
The jury found defendant guilty of both counts of battery on nonconfined persons and found the prior-conviction allegations true. The court imposed two consecutive three strikes sentences of 25 years to life, both consecutive to the sentences defendant was already serving.
DISCUSSION
I. Second competency evaluation
Defendant argues that his behavior at trial was irrational and that, consequently, the trial court was obligated, on its own motion, to suspend the proceedings, order a second competency evaluation, and appoint counsel to represent him at a second competency hearing. We disagree.
A criminal defendant is mentally incompetent to stand trial 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).) A defendant is mentally competent to waive the right to counsel if he is mentally competent to stand trial. (Godinez v. Moran (1993) 509 U.S. 389, 397, 398, 399; People v. Welch (1999) 20 Cal.4th 701, 740-741; People v. Hightower (1996) 41 Cal.App.4th 1108, 1115.) The trial court is required to conduct a competency hearing if defense counsel informs the court that he or she believes the defendant may be mentally incompetent. (§ 1368, subd. (b).) The court also must conduct a competency hearing on its own motion if there is evidence that raises a reasonable doubt on the issue. (People v. Howard (1992) 1 Cal.4th 1132, 1163.) Once a competency hearing has been held, however, the court is not obligated to conduct a second competency hearing unless “it ‘is presented with a substantial change of circumstances or with new evidence’ casting a serious doubt on the validity of” its finding of competence after the first hearing. (People v. Jones (1991) 53 Cal.3d 1115, 1153.) This is a high hurdle: “[O]nce a defendant has been found to be competent, even bizarre statements and actions are not enough to require a further inquiry.” (People v. Marks (2003) 31 Cal.4th 197, 220.) In applying these standards, we bear in mind that “[r]eviewing courts give great deference to a trial court’s decision whether to hold a competency hearing.” (Ibid.)
We have no way of knowing whether defendant’s statements at trial arose from any mental illness. It is not part of our role to determine whether this occurred. Our task is limited to a determination of whether the court was presented with a substantial change of circumstances or new evidence casting a serious doubt on the validity of the previous competency finding—i.e., on the finding that defendant was able to understand the proceedings and rationally assist in his defense. Defendant’s statements at trial, despite their dramatic nature, did not constitute the required substantial change of circumstances or new evidence. True, defendant apparently did not report to Dr. Velosa the suicide attempts, beatings, a rape, or a belief that he was being retaliated against for lawsuits. Defendant declined to discuss his case with Dr. Velosa on the advice of counsel, and Dr. Velosa’s report did not mention any of these matters. It does not follow, however, that Dr. Velosa had inadequate data to render his opinion or that there is a serious doubt about the validity of his conclusion.
Defendant’s brief claims there are “substantial questions” about the reliability of Dr. Velosa’s report because Dr. Velosa interviewed defendant at the courthouse and did not review prison medical records. The brief describes the report as “limited and superficial.” The brief does not, however, make any claim that the court’s original competency finding was erroneous for this reason. Instead, it claims that the court was required to conduct a second competency hearing because of a change in circumstances or new evidence.
Any doubt we might have had about whether the strangeness of defendant’s behavior at trial rose to a level that would require reversal under the standard set by our Supreme Court is settled by that court’s holding in People v. Ramirez (2006) 39 Cal.4th 398. Ramirez was a serial killer known as the Night Stalker; he was convicted of 12 counts of first degree murder and sentenced to death. (Id. at p. 407.) Early in the proceedings, the court ordered a psychiatric evaluation, but 15 minutes into the examination, Ramirez refused to continue speaking to the psychiatrist. The psychiatrist thought Ramirez was probably competent, though in a borderline way; he felt he had insufficient information to render a conclusive opinion. The court apparently did not rule on Ramirez’s competency at that point. (Id. at p. 429.) Later, defense counsel requested another psychiatric evaluation, but the court denied the request. (Id. at pp. 429-430.) On appeal, Ramirez argued that the trial court should have granted the request and also should have ordered a competency evaluation on its own motion during the trial or the penalty phase. The Supreme Court rejected these contentions. (Id. at pp. 429, 431, 466-467.) Ramirez’s behavior might have been bizarre, but this was not enough to raise a doubt about his competence. It was not enough, for instance, that Ramirez said this at the sentencing hearing:
People v. Ramirez, supraIf this was not enough to compel the court to make a competency determination, then defendant’s conduct at trial in the present case was not enough to cast serious doubt on the court’s earlier finding that defendant was competent.
II. Lack of objection to doctor’s report
Defendant contends that counsel who represented him at the competency hearing rendered ineffective assistance because he did not object to admission into evidence of the doctor’s written report. He claims that the report constituted testimonial hearsay and therefore should have been excluded under Crawford v. Washington, supra, 541 U.S. 36.
Counsel’s lack of objection on this ground cannot constitute ineffective assistance because the objection could not properly have been sustained. When hearsay evidence is inadmissible under Crawford, it is inadmissible because it violates the defendant’s rights under the confrontation clause of the Sixth Amendment. (Crawford v. Washington, supra, 541 U.S. at pp. 38, 42, 68.) Our Supreme Court, however, has effectively held in People v. Weaver (2001) 26 Cal.4th 876 that a defendant has no confrontation clause rights in a proceeding to determine his competency to stand trial.
In Weaver, the defendant claimed that his right to due process of law was violated when the question of his competency to stand trial was submitted to the trial court upon written psychiatric reports. He further claimed that his trial counsel rendered ineffective assistance when he agreed to this way of proceeding. Rejecting these arguments, the Supreme Court stated:
People v. McPeters“Of course, trial of an incompetent defendant violates an accused’s right to due process. [Citations.] But contrary to defendant’s arguments, [none of our] precedents precludes a defense attorney from waiving a jury, forgoing the right to present live witnesses, and submitting the competency determination on the psychiatric reports filed with the court. The statutory references to a ‘hearing’ (§ 1368, subd. (b)) or a ‘trial’ (§ 1369) simply mean that a determination of competency must be made by the court (or a jury if one is not waived), not, as defendant contends, that there must be ‘a court or jury trial, at which the criminal defendant’s rights of confrontation, cross examination, compulsory process and to present evidence are honored by the court and counsel.’ Unlike in People v. Marks (1988) 45 Cal.3d 1335, 1343 …, defense counsel did not attempt to waive the competency issue; he merely submitted the matter on the psychiatric reports.” (People v. Weaver, supra, 26 Cal.4th at pp. 903-904.)
In the Supreme Court’s view, there could be no constitutional problem with counsel’s waiver of the procedures attendant on an adversarial hearing—including the confrontation and cross-examination of witnesses—because the right to a competency determination does not encompass a constitutional right to those procedures in the first place. A defendant or his counsel could not submit the issue of his guilt or innocence to the court upon the parties’ written submissions because such a proceeding would fail to satisfy the constitutional requirements for a criminal trial; it would fail to honor the defendant’s right to confront witnesses and other rights. But the issue of a defendant’s competency to stand trial can be submitted in this manner because those rights are not constitutionally guaranteed in proceedings to determine that issue.
Since the constitutional right to confront witnesses did not apply in the proceeding in question, it follows that the admission of evidence in the proceeding could not violate the confrontation clause. Consequently, it makes no difference in this context whether the doctor’s report should be characterized as testimonial hearsay or not. Weaver predates Crawford, but there is nothing in Crawford to undermine the proposition that a competency hearing is not in the nature of a criminal trial and therefore not a proceeding in which the constitutional right to confront witnesses applies.
Gregory v. State (1978) 40 Md.App. 297, 299-300, 325 [391 A.2d 437, 439-440, 454], on which defendant relies, is not contrary to our holding. There, the court held that the defendant had a constitutional right to confront psychiatric experts who rendered opinions about his sanity, which was relevant to whether he could have had the mental state necessary to be guilty of the crime. Expert opinions were introduced at trial and were relevant to the defendant’s guilt or innocence. That is not the case here.
Defendant also argues that, even if there is no confrontation clause violation, the People’s exclusive reliance on the written doctor’s report, with no live testimony and no opportunity for cross-examination, denied him due process of law; and counsel who agreed to this way of proceeding rendered ineffective assistance. This, however, is the very argument the Supreme Court rejected in Weaver and earlier in People v. McPeters, supra, 2 Cal.4th 1148, 1169. Due process does not require an opportunity to confront witnesses in a competency hearing.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Cornell, J., Hill, J.