Opinion
A142986
01-22-2018
THE PEOPLE, Plaintiff and Respondent, v. JAMAAL ANTHONY PRINCE, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. C173157)
Following a jury trial, defendant Jamaal Anthony Prince was convicted of the murder of Jennifer Kingeter. The jury found the degree of the murder to be first degree and also found that defendant had personally used a knife in its commission. Defendant was sentenced to an indeterminate term of 25 years to life in state prison for first degree murder plus a one-year consecutive term on the knife use enhancement.
Defendant timely appeals, raising three claims of instructional error, which we reject for the reasons discussed below. Defendant also maintains that, as a result of an error in the clerk's minutes, the trial court erroneously failed to adjudicate his competence after previously suspending the criminal proceedings when defense counsel declared a doubt as to his competence. Defendant argues, and we agree, that the judgment should be reversed, subject to the trial court's authority to hold a retrospective competency hearing if feasible and, if so, to reinstate the judgment if it finds the hearing was adequate and defendant failed to prove he was incompetent.
DISCUSSION
Instruction that Jury Not Required to Agree Unanimously on a Theory of Murder
Relying on People v. Sanchez (2013) 221 Cal.App.4th 1012 (Sanchez) and People v. Johnson (2016) 243 Cal.App.4th 1247 (Johnson), which he claims are "directly on point," defendant maintains "there was prejudicial error because the [trial court's] instructions told jurors they weren't required to be unanimous on the theory of murder, when different theories supported different degrees." As we explain below, Sanchez and Johnson are readily distinguishable from the present case, in which the instructions properly conveyed to jurors that unanimity was required as to the degree of any murder verdict.
CALCRIM No. 548 and Sanchez and Johnson Decisions
In Sanchez, supra, 221 Cal.App.4th 1012, "[a]t the prosecution's request, the trial court instructed the jury on two theories of murder: (1) first degree felony murder if [the victim] was killed during the commission or attempted commission of a kidnapping that defendant committed, attempted, or aided and abetted and (2) second degree murder if the murder was the natural and probable consequence of an assault or a kidnapping." (Id. at p. 1019.) Subsequently, "[i]n a portion of its response to a jury question during deliberations on the definition of second degree murder, the jurors were instructed pursuant to Judicial Council of California, Criminal Jury Instructions, CALCRIM No. 548: 'You may not find the defendant guilty of murder unless all of you agree that the People have proved that the defendant committed murder under at least one of these theories. You do not all need to agree on the same theory.' " (Ibid., original italics.)
After receiving this response to its question, the jury deliberated for two and a half more hours, ultimately convicting defendant of first degree murder. (Sanchez, supra, 221 Cal.App.4th at p. 1024.) On appeal, defendant argued that the trial court erred by including the italicized language because the two theories presented to the jury led to different degrees of murder. (Ibid.) The appellate court agreed, reasoning as follows:
"When a crime is divided into degrees, the jury must find the degree of the crime. ([Pen. Code,] § 1157.) 'It is settled, however, that "in a prosecution for first degree murder it is not necessary that all jurors agree on one or more of several theories proposed by the prosecution; it is sufficient that each juror is convinced beyond a reasonable doubt that the defendant is guilty of first degree murder as that offense is defined by statute." [Citations.]' We have no quarrel with this principle of law, cited by the Attorney General, but the rule has no application in this case because there was only one theory of first degree murder.
"The final instruction the jury received on unanimity was that it need not agree on the theory of guilt, even though presented with alternate theories of liability which led to different results as to the degree of the murder. Unanimity was required in this case as to the theory of guilt as a result of different theories supporting different degrees of murder. The prosecutor understood the need for unanimity at the time he requested instructions on natural and probable consequences, specifically telling the trial court the jury could return a verdict of murder in the first or second degree, depending on what theory they unanimously agreed upon.
"The trial court's supplemental instruction in response to the jury's question regarding the meaning of second degree murder undermined the notion of unanimity as to degree by unambiguously stating: " 'You do not all need to agree on the same theory.' " There is no way to determine, on the record presented, whether the jury followed the instruction during deliberations stating unanimity was not required, or the earlier instruction pursuant to CALCRIM No. 640, which set forth a different approach to the verdict forms on both degrees of murder." (Sanchez, supra, 221 Cal.App.4th at pp. 1024-1025, original italics & fn. omitted.)
The earlier instruction, in sum, instructed the jury that it must unanimously agree on the degree of the murder. (Sanchez, supra, 221 Cal.App.4th at p. 1022, fn. 9.)
Similarly, in Johnson, supra, 243 Cal.App.4th 1247, "[t]he murder charge was based on two theories: first degree felony murder in connection with attempted robbery or attempted kidnapping, and second degree murder based on aiding and abetting another who acted with malice aforethought." (Id. at p. 1251, italics added.) "The trial court instructed the jury that '[t]he defendants have been prosecuted for murder under two theories: (1) aiding and abetting another who acted with malice aforethought; and (2) felony murder. [¶] Each theory of murder has different requirements, and I will instruct you on both. [¶] You may not find a defendant guilty of murder unless all of you agree that the People have proved that the defendant committed murder under at least one of these theories. You do not all need to agree on the same theory.' This jury instruction was based on CALCRIM No. 548." (Id. at p. 1277.) On appeal, the appellate court reversed the defendants' first degree murder convictions, concluding "the trial court erred in instructing the jury that it did not have to unanimously agree on a theory of murder where, as here, one theory of murder was first degree murder and the other theory was second degree murder, and that this error was prejudicial." (Id. at p. 1251.)
CALCRIM No. 548 (Murder: Alternative Theories), the pattern jury instruction addressed in Sanchez and Johnson, "is designed to be given when murder is charged on theories of malice and felony murder to help the jury distinguish between the two theories." (Judicial Council of Cal., Crim. Jury Instns. (2017) Bench Notes to CALCRIM No. 548, p. 295.) In February 2016, to avoid the potential for juror confusion described in Sanchez and Johnson, the last sentence of CALCRIM No. 548 was revised to state, "You do not all need to agree on the same theory [, but you must unanimously agree whether the murder is in the first or second degree]." The bracketed language was added to address scenarios in which the alternate theories of felony murder and murder with malice aforethought may support different degrees of murder. (Judicial Council of Cal., Crim. Jury Instns. (2017) Authority to CALCRIM No. 548, p. 295, citing Sanchez, supra, 221 Cal.App.4th at p. 1025.) Because the present matter was tried before the February 2016 revision to CALCRIM No. 548, the additional language was not included in the trial court's charge to the jury in this case.
The mere omission of the language, however, is not enough to demonstrate error. Rather, as the Sanchez court explained: " 'A defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant. [Citations.]' 'We credit jurors with intelligence and common sense [citation] and do not assume that these virtues will abandon them when presented with a court's instructions. [Citations.]' ' "[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction." ' " (Sanchez, supra, 221 Cal.App.4th at p. 1024.) " 'Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.' " (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) With these principles in mind, we turn to the facts of the instant matter.
Factual Background
The trial court began its instructions on murder with an instruction patterned on the prior version of CALCRIM No. 548, which, as given to the jury, stated, "[Defendant is] being prosecuted under two theories. One theory is known as felony murder. A second theory is known as murder with malice aforethought. Each of these theories of murder has different requirements, and I'm going to instruct you on both. You may not find the defendant guilty of murder unless all 12 of you agree that the People have proved that the defendant committed murder under at least one of these theories, but you don't have to all agree on the same theory." The trial court proceeded to instruct the jury on (1) first degree felony murder during the attempted commission of either forcible rape or forcible oral copulation, (2) murder with malice aforethought based on either express or implied malice, and (3) first degree murder with malice aforethought perpetrated by torture.
As to the second category, the trial court further instructed the jury, "If you decide that the defendant committed murder with malice aforethought under this theory, then you have to decide whether it's murder of the first degree or murder of the second degree. As I told you, felony murder theory takes you right to first degree. That's it. This one you have to make that additional determination." The trial court continued, "The defendant is guilty of first-degree murder under this theory of malice aforethought, if the People have proved that [he] acted willfully, deliberately, and with premeditation," terms it proceeded to define for the jury.
At the conclusion of its instructions on murder, the trial court emphasized, "The People as always have the burden of proving beyond a reasonable doubt the killing was first-degree murder, rather than a lesser crime. Any murder which is not proven to be first-degree murder is second-degree murder." The trial court then instructed the jury on two types of voluntary manslaughter, the first based on a sudden quarrel or heat of passion and the second based on imperfect self-defense.
During her closing argument, the prosecutor urged the jury to convict defendant of first degree murder on three different bases—felony murder; willful, deliberate, and premeditated murder with malice aforethought; and murder with malice aforethought perpetrated by torture. She explained, "Felony murder is necessarily, as the judge explained, murder in the first degree. [¶] When a murder is committed with malice or malice aforethought, it starts at second-degree murder, and certain things like premeditation and deliberation as well as torture murder elevate that to first-degree murder. In all three of these theories, first-degree murder applies. In felony murder[,] premeditation and deliberation and in torture murder. [¶] You as a jury as you look at the evidence, you don't have to agree on which theory the defendant is guilty of in order to find him guilty of first-degree murder. As long as each of you decide that he's guilty of at least one of the theories, then you can find him guilty of first-degree murder. And I believe that is what the evidence will prove."
The prosecutor then described the elements of each of the three types of first degree murder, again emphasizing, "There are three theories here, and all three are appropriate, and all three prove that he's guilty of first-degree murder." After describing the elements, she reiterated, "So those are the three different ways that the defendant as you [will] see momentarily is guilty of first-degree murder; felony murder[;] premeditation, willful, deliberate; and torture murder." The prosecutor concluded her closing argument with a review the evidence supporting each of the three types of first degree murder.
Defense counsel began his closing argument by acknowledging, "the district attorney and I have no disagreement as to the law, none. We're totally in agreement. We do have a disagreement as to what the facts as you determine them to be might indicate and the law to be applied to those facts." He argued that the evidence warranted a verdict of voluntary manslaughter based on imperfect self-defense followed by heat of passion.
After closing arguments, in its final charge, the trial court instructed the jury, "Your verdict and any specific finding must be unanimous. That means in order to return a verdict all 12 jurors must agree to that specific verdict." The trial court also instructed the jury on the verdict form for murder as follows: "If the jury agrees unanimously that the evidence does prove beyond a reasonable doubt that [defendant] is guilty of murder, you would have your foreperson date and sign this form which reads: We the jury in the above entitled cause find [defendant] guilty of a felony, to wit, murder, a violation of section 187(a) of the Penal Code of California, et cetera. It goes on to describe it factually. [¶] This verdict form will then serve as a reminder of some other decisions that you have to make in that [instance] because it provides places where you have to enter more information. [¶] The next paragraph reads: We the jury further find that the degree of murder could be blank degree, and you fill in the word 'first' or the word 'second.' It's reminding you you need to make that decision. [¶] And then the next paragraph gives you another reminder. It reads: We the jury further find [defendant] did or did not—there is a blank, and you write in 'did' or 'did not' personally use a knife in the commission of the above [offense]. So it provides—it's pretty clear which form to use if you find [defendant] guilty of murder and the decisions you need to make in connection with that."
Following its deliberations, the jury found defendant guilty of murder, "further find[ing] the degree of murder to be First degree" and "further find[ing] that [defendant] Did personally use a knife in the commission of the above offense." The words "First" (as opposed to the other option of "Second") and "Did" (as opposed to the other option of "Did Not") were handwritten on the blank line in the verdict form by the jury foreperson.
Legal Analysis
In Sanchez and Johnson, the jury was presented with a choice between first degree felony murder on the one hand and second degree murder with malice aforethought on the other hand. (Sanchez, supra, 221 Cal.App.4th at p. 1019 [natural and probable consequences theory of second degree murder]; Johnson, supra, 243 Cal.App.4th at p. 1251 [aiding and abetting theory of second degree murder].) In that context, the trial court's instructions that jurors need not agree on felony murder (first degree) or murder with malice aforethought (sought only as second degree) directly contradicted well-established law that unanimity is, in fact, required as to the degree of a murder. (Id. at p. 1278; Pen. Code, § 1157.)
In the present matter, by contrast, the jury was instructed not only on first degree felony murder but also on two different types of first degree murder with malice aforethought—willful, deliberate, and premeditated murder with malice aforethought; and murder with malice aforethought perpetrated by torture. It was in this context that the trial court, consistent with the then-current version of CALCRIM No. 548, instructed the jury, "[Defendant is] being prosecuted under two theories. One theory is known as felony murder. A second theory is known as murder with malice aforethought. Each of these theories of murder has different requirements, and I'm going to instruct you on both. You may not find the defendant guilty of murder unless all 12 of you agree that the People have proved that the defendant committed murder under at least one of these theories, but you don't have to all agree on the same theory."
Unlike in Sanchez and Johnson, in which murder with malice aforethought was prosecuted only on theories of second degree murder, in this case, both felony murder and murder with malice aforethought were prosecuted on theories of first degree murder. Thus, the instruction at issue did not directly conflict with but rather was entirely consistent with settled law that " ' "in a prosecution for first degree murder it is not necessary that all jurors agree on one or more of several theories proposed by the prosecution; it is sufficient that each juror is convinced beyond a reasonable doubt that the defendant is guilty of first degree murder as that offense is defined by statute." ' " (Sanchez, supra, 221 Cal.App.4th at p. 1024.)
Because the challenged instruction was consistent with existing law that a jury need not unanimously agree on a theory of first degree murder, the pertinent inquiry is whether—absent the newly-added cautionary language that "you must unanimously agree whether the murder is in the first or second degree"—the instruction was likely to mislead the jury into concluding that unanimity was not required as to the degree of any murder verdict. Based on our review of the entire record and the instructions as a whole, we conclude that defendant has failed to demonstrate a reasonable likelihood that the jury understood the instruction in this manner. (Sanchez, supra, 221 Cal.App.4th at p. 1024.)
Significantly, while the trial court instructed the jury on the lesser offense of second degree murder with malice aforethought, neither the prosecution nor the defense argued for such a conviction. To the contrary, the prosecutor sought a first degree murder verdict on each of three different bases, which she meticulously described during her closing argument—felony murder; willful, deliberate, and premeditated murder with malice aforethought; and murder with malice aforethought perpetrated by torture. Defense counsel, in turn, argued for a voluntary manslaughter verdict based on imperfect self-defense followed by heat of passion.
More importantly, in its closing charge, the trial court expressly instructed the jury, "Your verdict and any specific finding must be unanimous. That means in order to return a verdict all 12 jurors must agree to that specific verdict." (Italics added.) Then, referencing the verdict form, the trial court instructed the jury that any murder verdict must include findings on both the degree of the murder and whether the defendant personally used a knife in its commission. Consistent with these instructions, in addition to finding defendant guilty of murder, the jury made two specific findings—"further find[ing] the degree of murder to be First degree" and "further find[ing] that [defendant] Did personally use a knife in the commission of the commission of the above offense." These were the only two findings rendered by the jury beyond the murder verdict itself. On this record, there is simply no basis on which to conclude the jury disregarded the trial court's instruction that the two specific findings must be unanimous.
The trial court's unanimity instruction tracked similar language in CALCRIM No. 3550. Defendant downplays the significance of the pattern instruction, analyzing only its language that " 'all of you must agree to [the verdict].' " He fails to address the immediately preceding and more pertinent sentence that "any special findings" must be unanimous.
Instructions on Attempted Forcible Rape and Attempted Forcible Oral Copulation
Defendant next asserts that the trial court erred in failing to instruct the jury that attempted forcible rape and attempted forcible oral copulation, the underlying offenses for the allegation of felony murder, require specific intent to commit rape or oral copulation against the will of the other person. In support of this assertion, defendant engages in an extended discussion of the distinction between the general intent crimes of completed rape or oral copulation and the specific intent crimes of attempted rape or oral copulation. (See, e.g., People v. Braslaw (2015) 233 Cal.App.4th 1239, 1247-1252; People v. Sojka (2011) 196 Cal.App.4th 733, 736-739; see also People v. Dillon (2009) 174 Cal.App.4th 1367, 1378.)
Defendant requests that we take judicial notice of the unpublished parts of People v. Dillon, supra, 174 Cal.App.4th 1367, "to further elucidate the meaning" of a federal district court opinion rejecting some of the unpublished analysis. Because the materials in question do not affect our analysis herein, we deny the request for judicial notice.
In this case, however, defendant was not charged with any standalone sex crimes, completed or otherwise. Rather, he was prosecuted for first degree felony murder committed in the attempt to perpetrate forcible rape or forcible oral copulation. (Pen. Code, § 189.) Under the felony murder doctrine, "[t]he mental state required is simply the specific intent to commit the underlying felony; neither intent to kill, deliberation, premeditation, nor malice aforethought is needed." (People v. Gutierrez (2002) 28 Cal.4th 1083, 1140-1141; People v. Jones (2003) 29 Cal.4th 1229, 1256 [same].) Thus, although rape and oral copulation are themselves general intent crimes, a jury must find that a defendant has the specific intent to commit them in order to find him guilty of first degree felony murder. (Id. at pp. 1256-1257.) In other words, in the felony murder context, specific intent to commit the underlying felony is required regardless of whether the underlying felony was completed or merely attempted.
Consistent with these principles, the trial court properly instructed the jury, "To prove that the defendant is guilty of murder under the theory of felony murder, the People must prove the following three things: First of all, that the defendant attempted to commit forcible rape or oral copulation; second, that the defendant intended to commit rape or forcible oral copulation; and, third, that while he was attempting to commit rape or oral copulation, the defendant caused the death of another person." (Italics added.) The trial court further instructed the jury, "to prove that the defendant attempted to commit a crime, forcible rape or forcible oral copulation, the People must prove, first of all, that he took a direct but ineffective step towards committing one of those crimes and, two, that he intended to commit one of those crimes." (Italics added.) The trial court proceeded to define the term "direct step" and to instruct the jury on the elements of forcible rape, including the requirement that the sexual intercourse have been "against [the victim's] consent or without her consent," and the elements of forcible oral copulation, including the requirement that the sexual contact have been "without the other's consent." Finally, the trial court instructed the jury, "defendant must have intended to commit the felony of the forcible rape or forcible oral copulation before or at the time that he caused the death for [the felony murder doctrine] to apply." (Italics added.)
Taken together, these instructions properly conveyed to jurors that they were required to find defendant had the specific intent to commit rape or oral copulation in order to convict him of first degree felony murder. (People v. Jones, supra, 29 Cal.4th at pp. 1257-1259; People v. Ramirez (1990) 50 Cal.3d 1158, 1177-1178; see People v. Guerra (2006) 37 Cal.4th 1067, 1130 ["An attempt to commit rape has two elements: the specific intent to commit rape and a direct but ineffectual act done toward its commission."].) Moreover, as in People v. Jones, supra, 29 Cal.4th at p. 1258, the prosecutor underscored this requirement several times during her closing argument, reiterating that defendant must have "intended to commit the crime" and arguing, "If you believe that while trying to rape [the victim], the defendant in trying and wanting to rape her killed her, he is guilty of felony murder." Later, the prosecutor highlighted evidence of the victim's torn clothing, some of which appeared to have been "ripped from her body," as evidence defendant "did intend to rape" and that the victim "wouldn't comply." Again, on this record, defendant has failed to " 'demonstrate a reasonable likelihood that the jury understood the instruction[s] in the way asserted by the defendant' " (Sanchez, supra, 221 Cal.App.4th at p. 1024), and, hence, his claim of instructional error fails.
In his opening brief, defendant makes much of the fact that the instructions on the underlying sex crimes used the phrase "without [the victim's] consent" rather than "against the other person's will." "In the sexual assault context, it is settled that ' "without the victim's consent" ' has the same meaning as ' "against the victim's will." ' " (People v. Robinson (2016) 63 Cal.4th 200, 208.)
Alternate Phrasing in Forcible Rape Instruction
Defendant's final claim of instructional error relates to alternate phrasing in the trial court's definition of forcible rape, which stated, "Forcible rape is defined as sexual intercourse with a woman who is not the wife of the perpetrator against her consent or without her consent accomplished by force, violence, duress, menace, or fear of immediate and unlawful bodily injury." In its definition of forcible oral copulation, by contrast, the trial court used only the latter phrase—that is, "without the other's consent." According to defendant, "A juror who construed these instructions in common English would have concluded that 'against her consent' meant something different from 'without her consent.' " We disagree.
While, as previously noted, defendant was not charged with forcible rape or forcible oral copulation, he was prosecuted for first degree felony murder committed in the attempt to perpetrate these two offenses, and, hence, the trial court properly instructed the jury on the elements of the offenses.
Defendant acknowledges that "[i]n common English, 'against her consent' is synonymous with 'against her will,' the specific intent required for an attempt crime." As previously noted, these two synonymous phrases, in turn, have the same meaning as " ' "without the victim's consent." ' " (People v. Robinson, supra, 63 Cal.4th at p. 208.) We decline defendant's invitation to speculate that the jury interpreted them in a manner that obviated the trial court's repeated instructions that defendant must have intended to commit rape or oral copulation—that is, that he intended to act "against [the victim's] consent or without her consent"—in order to convict him of first degree felony murder. (Sanchez, supra, 221 Cal.App.4th at p. 1024 [correctness of instructions to be determined from entire charge of the court]; People v. Ramos, supra, 163 Cal.App.4th at p. 1088 [instructions should be interpreted to support rather than defeat the judgment if reasonably susceptible to such interpretation].)
Failure to Adjudicate Defendant's Competence to Stand Trial
Defendant contends that, as a result of an error in the clerk's minutes, the trial court erroneously failed to adjudicate his competence after previously suspending the criminal proceedings when defense counsel declared a doubt as to his competence. We agree.
Factual Background
On April 22, 2013, defendant's then defense counsel, Mario Andrews, declared a doubt as to defendant's competence to stand trial, asserting he was unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense. (Pen. Code, § 1367, subd. (a).) The trial court (Judge Jacobson) suspended the criminal proceedings and appointed two experts to evaluate defendant's competence.
On June 10, 2013, the date of the scheduled competency hearing, the trial court (Judge Rolefson) granted defense counsel Andrews' motion to withdraw from the case based on a conflict of interest and appointed defense counsel Al Thews in his stead. The trial court continued the matter to June 24, 2013, "for further proceedings under [Penal Code] section 1368," noting that "[p]roceedings have been suspended at this point." (Id. at p. 3.) By contrast, the clerk's minutes of the hearing state, "Pursuant to [Penal Code] section 1368 reports, court finds [defendant] competent to stand trial. Criminal proceedings reinstated." The clerk's minutes appear to have been in error, because, as noted, the reporter's transcript of the oral proceedings reflects neither a finding of competence nor the reinstatement of the criminal proceedings but rather a continuance of the competency hearing and the continued suspension of the criminal proceedings in the interim.
On June 24, 2013, the parties appeared at the continued hearing (back before Judge Jacobson), and the following dialogue ensued:
"Mr. Thews: Albert W. Thews for [defendant], present in custody in court. [¶] Judge, the last time we were here there was some confusion. There were two reports from psychiatrists regarding a motion on [Penal Code section] 1368. Those two reports indicated that [defendant] was competent to stand trial. I don't know if the Court had ruled on that or not. I'll submit it for the Court's ruling.
"The Court: I am looking at a minute order that indicates the Court made a finding on June 10th.
"Mr. Thews: All right.
"The Court: And reinstated proceedings at that time. Do you want me to review the reports again? I will.
"Mr. Thews: No. No. I have the reports. I was going to submit it. I didn't know if the ruling had been made.
"The Court: Mr. Wendt, my minute order indicates you were counsel of record for the people.
"Mr. Wendt: Yes.
"The Court: Has this been taken care of?
"Mr. Wendt: Yes.
"The Court: So I think we are reinstated."
"Mr. Thews: Thank you."
At this point, defense counsel requested a two-month continuance to continue his preparation in the matter. Before ruling on the request, the trial court replied, "Give me one second to review something, if I could." The trial court then observed, "just [so] the record will be clear, I've reviewed [the Penal Code section] 1368 reports and it appears to me that [defendant] is fairly stable in terms of his mental state, so that is what my concern was, whether we're dealing with an issue of rapid deterioration. I don't think that's what we're dealing with." Following this observation, the trial court granted the requested continuance, noting that time continued to be waived.
Legal Analysis
The law governing our analysis is well established. Where, as here, "a trial court has ordered a competency hearing pursuant to [Penal Code] section 1368, the court lacks jurisdiction to conduct further proceedings on the criminal charge or charges against the defendant until the court has determined whether he is competent. This determination is mandated by the federal constitutional requirement of due process and by unambiguous California statutes." (People v. Marks (1988) 45 Cal.3d 1335, 1337, citing People v. Hale (1988) 44 Cal.3d 531.) In this case, it is clear that Judge Jacobson did not conduct the requisite competency hearing, believing, based on the erroneous clerk's minutes and the affirmative representation of the prosecutor, that Judge Rolefson had already done so.
Contrary to the Attorney General's suggestion, we cannot construe Judge Jacobson's comment that defendant was "stable in terms of his mental state" and not in a state of "rapid deterioration" as a substitute for a competency hearing and a finding that defendant was competent to stand trial. As our Supreme Court explained in People v. Marks, supra, 45 Cal.3d at p. 1343, at a minimum, a trial court must "expressly and unmistakably state on the record, either orally or in writing, its determination as to whether the defendant is mentally competent to stand trial." (Original italics.) Based on their context, the trial court's remarks in this case, which were made after just a few seconds of review, were nothing more than a quick assessment of whether defendant was in a rapidly deteriorating mental state that would have counseled against a continuance. The trial court determined that he was not and, accordingly, granted the continuance.
As defendant acknowledges, while earlier case law mandated unconditional reversal in these circumstances, "more recent authority permits a limited reversal for a retrospective competency hearing if the trial court concludes that it can be done reliably, with reinstatement of judgment if defendant is found to have been competent." (People v. Lightsey (2012) 54 Cal.4th 668, 702-711 (Lightsey).) We follow that course here.
DISPOSITION
We reverse the judgment and remand to the trial court with directions to determine whether holding a retrospective competency hearing is feasible. (Lightsey, supra, 54 Cal.4th at pp. 710-711 [addressing the feasibility determination].) If it is not feasible, the trial court must set the case for a new trial. Prior to that trial, the trial court must determine defendant's present competence to stand trial.
If the trial court initially finds a retrospective competency hearing is feasible, it will conduct appropriate competency proceedings, in accordance with the Supreme Court's opinion in People v. Lightsey, supra, 54 Cal.4th 668. If after such proceedings the court finds that the hearing was not procedurally adequate and substantively acceptable, or that defendant proved he was incompetent, the trial court must set the case for a new trial. If it finds the hearing was adequate and defendant failed to prove he was incompetent, the trial court will reinstate the judgment. (Id. at pp. 732-733.)
/s/_________
McGuiness, Acting P.J. We concur: /s/_________
Pollak, J. /s/_________
Jenkins, J.
Retired Presiding Justice of the Court of Appeal, First Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.