Opinion
NOT TO BE PUBLISHED
Santa Clara County. Super. Ct. No. CC583911
RUSHING, P.J.
Defendant James Edward Thomas was sentenced to life in prison upon conviction of first-degree burglary and misdemeanor prowling and peeping. On appeal and by accompanying petition for habeas corpus he contends that his trial attorney rendered ineffective assistance of counsel by failing to present a defense based on the premise that defendant’s schizophrenia made it impossible to infer beyond a reasonable doubt that when he entered the apartment in question, he possessed the intent to commit theft or rape that was required to convict him of burglary. He further contends that the court erred in sentencing him to a life term consecutive to a five-year sentence enhancement. We sustain the latter contention and direct a modification of the judgment. We find the record on appeal insufficient to establish a right to reversal based on ineffective assistance of counsel, but we find a prima facie case for habeas relief. Accordingly, we affirm the judgment as modified, while issuing an order to show cause returnable in the superior court.
Background
A. Evidence
Francisco Garcia spent the night of February 25, 2005, at the San Jose apartment of his girlfriend, who was identified at trial only as Sarah Doe. The apartment was on the ground floor and had “a lot of windows,” one of which, in the bathroom, opened near some stairs to the second level. About 3:00 in the morning, Francisco and Sarah were lying in a sofabed in the living room. Sarah was sleeping on the right side of the bed, nearer the bathroom. Francisco was on the left side of the bed, farthest from the bathroom, watching a movie on television and perhaps dozing. The television was toward the left, so that Francisco was facing away from the bathroom. He heard a slight noise to his right and turned to see defendant standing right next to the bed, looking at Sarah, “kind of hunched over with his arms outstretched to his sides.” He was wearing a baseball cap that Francisco had left on a couch in the corner of the room.
Asked whether he had told an officer he was sleeping, Francisco testified, “I told him . . . I was watching a movie. I closed my eyes for a second, but then I returned to watching the movie.” A perusal of Officer Phelps’s report refreshed his recollection that he had told the officer they were both asleep in bed. He insisted that he had told the officer the television was on.
Shocked, Francisco started yelling, “Who the fuck are you? What the fuck are you doing here?” Defendant just stared at him, saying nothing. Francisco jumped out of bed, and defendant ran into the bathroom, slamming the door. When Francisco opened the door, he found the window open and defendant gone. Grabbing his shirt, pants, and phone, Francisco went after defendant, leaving by the front door and “speed-walking” toward the street. Within a few seconds he saw defendant walking away, still wearing the baseball hat. Francisco gave chase while talking to police on the phone. Defendant, who was then 69 years old, tried to run but had a limp. Francisco did not try to catch him, wanting to keep his distance until police arrived. Defendant kept looking back, and at one point grabbed a rock and threw it at Francisco. Francisco saw him enter a driveway and go behind of an old Victorian house.
Francisco waited in front of the house. Within perhaps 30 seconds, San Jose Police Officer Michael O’Neil arrived. Francisco told him he had been chasing “an older black male,” and kept saying, “ ‘[H]e has my baseball cap.’ ” Francisco pointed out where the intruder had gone, and described what he was wearing: a striped shirt, perhaps black jeans, and the hat. Officers found defendant hiding in a small bathroom off a porch that “extend[ed] off the back door.” He was “kind of crouched down in the corner of the room . . . .” In the officer’s opinion he was “attempting to be quiet.” Francisco’s baseball cap was found in the yard. Officers showed defendant to Francisco, who identified him as the intruder, and also identified the hat as his property.
Officer O’Neil testified that defendant was “oddly quiet” when arrested. He identified himself before he was handcuffed, but “as soon as he was placed in handcuffs . . . [he] wouldn’t speak to us,” and “wouldn’t answer his name.” He also initially refused to allow blood to be drawn, as required by department policy “on these type of cases . . . .” Later he did allow blood to be drawn, and he was “otherwise compliant with [officers’] commands.”
Officers found no burglary tools. Nor did they find evidence of a “rape kit,” i.e., the kinds of instrumentalities a would-be rapist will often carry “in order to subdue their victim prior to committing the act.” They searched “for a fair amount of time . . . .”
Ten days later, on March 6, 2005, around 10:00 p.m., James Kroeker was sitting in his parked car across the street from his house in downtown San Jose, talking on the phone. He saw defendant go down a driveway six or seven houses down the street. Defendant disappeared from view for maybe five minutes, then walked back out the driveway. He approached the house neighboring Mr. Kroeker’s and began “looking in various windows.” He had “his hands over his eyes, kind of peering in.” He looked through some side windows for three or four minutes, then went around to the front and looked through some windows there for one or two minutes.
While this was going on, Mr. Kroeker telephoned police. Defendant then left the neighbor’s house and walked down Mr. Kroeker’s own driveway. As he did so, Mr. Kroeker saw a police car coming down the street. It was driven by San Jose Police Officer Brian Winco, who approached Kroeker and asked him where the peeper was. Kroeker indicated his driveway.
As Officer Winco stood on the sidewalk between Mr. Kroeker’s house and the neighbor’s, defendant walked towards him. Defendant was holding a stone about the diameter of a quarter or half dollar. Mr. Kroeker identified defendant as the man he had seen. Officer Winco arrested defendant and searched his person, finding a baggie containing an unused condom, and in a pocket, perhaps two more small rocks which the officer threw away at the scene. Defendant was also wearing a gold-colored Acqua brand wristwatch that “appeared to be a woman’s design.” There were no reports of its having been stolen.
Defendant did not have gloves, a mask, a watch cap or other head covering, or burglary tools. The officer went to each of the houses defendant had reportedly visited, and found no signs of attempted entry. Defendant had no ropes, duct tape, or weapons such as a knife. Officers described defendant as cooperative and compliant.
This contrasts with jail records, described in greater detail below, which suggest that defendant “was ‘odd in booking, refused to answer mental health questions,’ ” and that a day later he was exhibiting mental problems of sufficient severity that he was subjected to involuntary treatment. (See fn. 9, post, and accompanying text.)
Glenda Perkins, who apparently lived in the house into which defendant had been looking, testified that she did not know defendant, had never seen him before trial, did not invite him into her house on the night of March 6, 2005, and knew of no reason he should have been at her home. Similarly, Sarah Doe testified that she had never seen defendant before trial and had not given him permission to be in her apartment on the night of February 25. Nor did she give him permission to take anything from it, or consent to have sex with him.
A witness identified as Mary Doe testified over objection that defendant had raped her some 22 years previously in her room in a San Jose board and care facility, where she was under treatment for emotional trauma. Around 1:00 in the morning of October 22, 1983, she awoke to see a tall slim man, whom she believed to be defendant, standing over her. He put his hand over her mouth and told her not to make any noise. At one point he said that he would kill her if she made any noise. He had some gauze wrapped around his right palm, but was not wearing any gloves. He was not wearing a mask. He had no weapon that she was aware of. He did not tie her up in any way. After he put his hand over her mouth he raped her. The attack ended when the woman in the next room said, “What’s going on?” and turned on the light. The man ran down the hall and jumped out a window of the dining area, which was on the first floor. Her room was on the second floor, but had a window that could probably be looked into from a stairway outside.
Mary Doe further testified that after the rape, Mr. Thomas wrote her two letters. She did not keep copies, and did not tell police about them. She testified adamantly that the only part of the letters she remembered was a statement that the author had picked her to rape because “the other women’s hips were too wide for his purposes.” She did not recall him saying in the letters that he had seen her before the rape. Immediately before testifying, she had told the prosecutor that it was “well within the realm of possibility” that defendant had been peeping into her room. She denied telling him that defendant had said as much in his letters. She believed her statements to the prosecutor in the hallway were the same as her testimony at trial, i.e., that there were some outside stairs from which she believed it would have been very possible for someone to look into her room. She acknowledged feeling “bad” about testifying, partly because she felt sorry for defendant, and because she felt “partly responsible for any trouble he might get into because of [her] testimony.”
The defense objected in limine to testimony concerning the letters, arguing that since Mary Doe had not kept them, there was no way to authenticate them and thus to establish that their contents were in fact statements by defendant admissible over a hearsay objection. The prosecutor argued that the letters were authenticated by the facts that they (1) were mailed from jail, (2) were signed with defendant’s name, and (3) contained details tending to authenticate them. No evidence was adduced to support any of these assertions.
Lara Aziz testified that she was a victim’s advocate at a crisis center, that she coordinated support services for victims of sexual assault, and that she had been doing so for Mary Doe, whom she had accompanied to court that day. In the hallway outside the courtroom, Ms. Aziz had overheard Mary telling the prosecutor that she had received two letters from defendant while he was in custody, that the letters said he had seen her before, and that he had been looking at her through her window. However Mary did not specify when defendant had been looking; “it could have been a few seconds before” the assault.
After trial Mary Doe wrote two letters to the court. The first said in pertinent part, “I request a meeting with you regarding the sur[r]eptitious insinuations (under oath) of what I supposedly said out of court to Miss Laura, rape crisis counselor & [the prosecutor], who called me as a witness . . . . [¶] It was s[k]ewed, if not totally manufactured, & since this is probably my only opportunity to make a squeak for justice, and I’ve had 23 years to consider Mr. James Thomas, I plead for an opportunity to meet with you . . ., and to tell you [why?].”
B. Proceedings
Defendant was charged with (1) first degree burglary on February 25, 2005, in that he entered an inhabited dwelling house with the “intent to commit theft and/or rape”; and (2) misdemeanor prowling and peeking under Penal Code section 647, subdivision (i). He was alleged to have sustained eight prior “strike” convictions.
In August 2005 the court suspended proceedings to permit a determination of defendant’s competency to stand trial. Associated notations in the file indicate that deputies had refused to transport defendant on grounds that he was “unstable.” The court appointed Brent Hughey, Ph.D., to examine defendant pursuant to Penal Code section 1369, subdivision (a), and report his findings. Dr. Hughey issued a report which is discussed in more detail below. On September 14, 2005, the court found defendant competent to stand trial.
At trial the prosecution adduced the evidence summarized above, and the defense rested without making an opening statement or presenting any evidence. Defense counsel argued to the jury that defendant was guilty only of prowling, not of burglary. He said the only real issue for the jury was whether defendant “intended to take property and/or intended to commit a rape.” He argued that defendant’s lack of preparation—his lack of burglary tools, his wearing distinctive clothing rather than a watch cap, gloves, or mask—pointed to an absence of felonious intent. Noting that Francisco’s pants had been lying near where defendant entered the living room, and apparently near where he found the baseball cap, counsel pointed out that defendant took the latter, worthless item rather than something of value, such as a wallet. Defendant also “ma[de] a ton of noise, or enough noise to wake Mr. Garcia.” Similarly, with respect to the intent to commit rape, defendant lacked any of the appropriate accoutrements, including a condom. He noted that Sarah was “fairly good size,” “fairly young,” and “capable of handling herself,” whereas defendant was “not a young man. Look at him. Physically ill and shaking.” Accordingly, he argued, if defendant had been “staking out this woman” he “would have had something to be able to handle her with”—a knife, some means of restraint and “to tape up her mouth.” Counsel suggested that defendant put on the hat, then stumbled into the bed in the cramped quarters of the living room; this awoke Francisco, and also explained defendant’s looming over the bed when Francisco awoke and saw him.
Tremors are reportedly a common side effect of antipsychotic medications. Indeed, pharmaceutical publications refer to “antipsychotic-induced parkinsonism.” (See Abstract, Zolpidem for antipsychotic-induced parkinsonism, <http://www.ncbi.nlm.nih.gov/sites/entrez?cmd=Retrieve&db=PubMed&list_uids=11302407&dopt=AbstractPlus> (as of Dec. 28, 2007).)
Discussing the events of March 6, counsel noted the seeming irrationality of defendant’s lurking around houses on a well lit street while wearing a long-sleeved white sweater which might as well have been a sign saying “I’m here to prowl.” Counsel continued, “Does that strike you as logical? Does that strike you as someone who’s all there? Or does it suggest to you that someone is not in complete control of his faculties, doesn’t really know what he’s doing?” He then returned to the theme of defendant’s failure to take reasonable precautions to avoid detection and apprehension, noting the logical inconsistency of the prosecution’s urging an inference of preparation from defendant’s possession of a condom, while ignoring defendant’s failure to wear gloves. Again counsel noted defendant’s appearance in the courtroom: “scraggly beard; again, shaking; not very overpowering looking. Okay. This is the individual who was creeping around, and not doing a very good job of it. [¶] My client never intended to rape anybody. He never intended to steal anything on February 25th. What he intended to do was to get a closer look. . . . [¶] . . . My client is just a prowler. He’s not a burglar.”
The jury found defendant guilty of first degree burglary and further found that he committed the crime while two persons not accomplices were present. The jury also found defendant guilty on the prowling charge. Defendant admitted that he sustained five prior convictions for residential burglary, one for assault with intent to commit rape, and one for rape.
The court denied defendant’s motion to strike prior convictions, finding that despite his “mental health issues” he could not be deemed outside the intent of the “Three Strikes” law in view of his 40-year criminal history and the “serious danger” he continued to pose to the community.
The court sentenced defendant to 25 years to life, plus a five-year enhancement under Penal Code section 667, subdivision (a). The court imposed a concurrent six-month sentence on the misdemeanor charge. Defendant filed this appeal and related petition for habeas corpus.
I. Ineffective Assistance of Counsel
A. Background
Defendant’s argument on direct appeal is necessarily confined to the trial record, and therefore relies for its factual basis primarily upon the psychological report prepared by Dr. Hughey on August 29, 2005, reflecting his court-ordered evaluation of defendant’s competence to stand trial. The report states that it is based in part upon Dr. Hughey’s review of police reports and pleadings in the present case as well as medical records from “2004 to Present.”
Attached to defendant’s habeas petition are additional psychiatric records which counsel declares he found in trial counsel’s file. These include a 1985 entry referring to defendant’s “long psychiatric history with previous diagnoses of probable paranoid schizophrenia versus major affective disorder,” prior hospitalizations at Napa State Hospital and Valley medical center, involuntary medication when judged to be gravely disabled, and denial even when medicated of “previous psychotic episodes” or of the necessity for medication. Declarations filed in proceedings to authorize his involuntary medication in 1998 and 2000 refer to his “extensive psychiatric history dating back to 1972” including “numerous admissions” to Atascadero State Hospital, the California Men’s Colony, Patton State Hospital, Napa State Hospital, and San Francisco Mental Health Services.
Dr. Hughey’s report included an attempt to summarize defendant’s recent mental health history as reflected in psychiatric or jail records. Though the chronological sequence of the described events is not always clear, we understand the report to mean that from February to May of 1988, defendant received public mental health services for “chronic paranoid schizophrenia.” In 2003, he was apparently treated twice for “chronic undifferentiated schizophrenia” in the acute psychiatric unit at the county jail. In March of 2004 it was reported that defendant was “taking care of needs,” “[e]ating well,” exhibiting “[n]o bizarre behaviors,” and not “refusing meds.” By May, however, his condition had manifestly worsened, for he was placed under a conservatorship for the next five months. Presumably his condition bettered under treatment, but had worsened again by the time of his second arrest on March 6, 2005. At that time, when questioned by jail medical personnel, defendant “did not answer questions and looked ‘sad.’ ” Entries on the following day stated that he “was ‘odd in booking, refused to answer mental health questions.’ ” On that same date—March 7, 2005—he was “5150’d . . . due to increasing assaultive behavior.”
Dr. Hughey wrote that defendant’s records “noted OSCAR three times” during the stated period. An online memorandum to the county Board of Supervisors indicates that “OSCAR” refers to the software application formerly used by the county’s mental health and drug and alcohol services departments for “service data entry, program monitoring, and Medi−Cal, Medicare, and Third Party billing requirements.” (Memo. to Santa Clara County Bd. of Supervisors for Agenda of Aug. 13, 2002, at p. 3 <http://tinyurl.com/3e5lfk> (as of Dec. 28, 2007).) Defendant’s treatment evidently related to his psychiatric condition, since his records show “no significant drug history.”
Dr. Hughey wrote that defendant was “placed on 8A.” Another memorandum to the Board of Supervisors, as well as references in Dr. Hughey’s own report, suggest that “8A” refers to the acute psychiatric unit at the county jail. (See Memo. to Santa Clara County Bd. of Supervisors for Agenda of Jan. 25, 2005, at p. 3 <http://tinyurl.com/2qf48n> (as of Dec. 28, 2007).)
Welfare and Institutions Code section 5150 (§ 5150) provides for 72 hours of involuntary “treatment and evaluation” of any person who “as a result of mental disorder, is a danger to others, or to himself or herself, or gravely disabled.”
On March 8, 2005, Risperdal was prescribed for defendant. The hold under Welfare and Institutions Code section 5150 was discontinued on March 9. His condition again worsened by April 16, 2005, when he “became increasingly more withdrawn and nonresponsive, yet nevertheless stated, ‘I’m fine.’ ” By June 17, 2005, he was accusing “[t]he DA” of “playing with my mail.” He also denied the present charges, saying “I didn’t do it. They[’re] all making it up and trying to put pressure on me.” Staff reported that he denied any hallucinations, “but appeared ‘smiling, paranoid, stressed.’ In addition, staff noted in the progress notes, ‘He sent letters to [the] Superior Court. Poor insight, judgment. Believes DA is preventing him from sending out his mail. One letter to an ice skater and one to the Supreme Court. . . . . History of 295.9 (schizophrenia).’ ”
In 2005 the federally approved package insert for Risperdal described it as a brand name for risperidone, a psychotropic agent “used to treat schizophrenia.” (Label approved Dec. 4, 2003 <http://www.fda.gov/cder/foi/label/2003/20272s-26,27,20588s-17,18,21444s-2,3_risperdal_lbl.pdf> (as of Dec. 28, 2007).)
During a tuberculosis test defendant said, “ ‘You people put black ink on my x-ray. There’s nothing wrong with me.’ ” It is unclear from Dr. Hughey’s summary whether this occurred before or after defendant’s arrest.
Defendant “continued to decompensate,” and by August 8, 2005, was reported to have “taped signs to the door ‘both signs hostile, wanting to leave food, can’t say anything and stay away from me.’ ” He had become “increasingly hostile” and “ ‘wouldn’t come out of his cell.’ ” On August 9, after “[t]rying to assault other inmates,” he was involuntarily medicated with Zydis, Haldol, and Ativan. Ten days later, he was again uncooperative and “[r]efus[ing] oral meds.” “He was forced medications and underwent conservatorship on 8-22-05.”
Dr. Hughey also described these drugs as defendant’s “[c]urrent medications.” “Zydis” is apparently a reference to Zyprexa Zidis, a brand name for olanzapine, which belongs to a class of medications known as “atypical antipsychotics.” (Patient Information Sheet <http://www.fda.gov/cder/drug/InfoSheets/patient/olanzapinePIS.htm> (as of Aug. 28, 2007).) These medications “are approved to treat symptoms of schizophrenia that may include hearing voices, seeing things, or sensing things that are not there, mistaken beliefs or unusual suspiciousness.” (Ibid.)
Dr. Hughey reported that he interviewed defendant for about 30 minutes, apparently on August 25, 2005. Jail staff had told Hughey of their “difficulties” with defendant in that he “refused to leave his cell and had been agitated and assaultive recently.” They thus refused, apparently, to let him out of his cell unshackled. Defendant refused to be shackled. Therefore, Dr. Hughey reported, the interview was conducted “at the doorway to the cell.” The interview was “truncated” out of fear that defendant would “once again become nonresponsive.” Dr. Hughey also found it necessary to “ask[] the defendant to repeat statements made several times, due to difficulty in hearing the responses due to the cell door and overall loud ambience on the unit.”
Dr. Hughey wrote that according to nursing staff, “it had been about eleven days since the client was forced to take his psychotropic medication.” In isolation this would suggest that defendant had been medicated 11 days previously, and not since. Dr. Hughey apparently meant to convey the opposite, for later he wrote of defendant’s apparent improvement “after about eleven days of forced psychotropic medication administration . . . .”
During the interview, defendant denied responsibility for the current charges and for past offenses. He asserted that, at the time of at least some of the events at issue here, “a person in a blue wagon had been in the area, following him.” Asked how he might counter statements in a police report, he said, “ ‘I think somebody, some guy or woman was driving around on a blue wagon, seeing how I was doing.’ Asked if this mean[t] somebody was checking on him, he acknowledged [so] and added, ‘All night.’ Asked to describe the appearance of the person, Mr. Thomas stated that he did not see this individual.”
Defendant initially denied any past or present psychiatric conditions. However he eventually acknowledged that he had been diagnosed with “just psychosis,” and that he had taken “[a]ll types of” psychotropic drugs including “olanzapine.” He said that he had first been placed on medications when sent to prison in 1972. At the time of the interview, Dr. Hughey observed “no overt psychotic processes” and found defendant “goal-directed in his desire to avoid incarceration. As such, his actions appeared self-serving, but not bizarre. Given the limitations of seeing the client at his doorway, Mr. Thomas displayed no apparent unmanageable behavior.” However, “Self-awareness/insight of his psychiatric disturbance was poor. He either denied or downplayed any issues with regards to his mental health.” He acknowledged having been told he had paranoid schizophrenia, and that this meant he was “not right in the head,” but he “denied any auditory or visual hallucinations.” Asked why he thought he had been “admitted onto the 8A unit,” he alluded to “[a] guy” or a “few troublemakers,” acknowledging that he acted “weird,” but attributing it to “other inmates bothering him.”
Dr. Hughey observed that defendant revealed no “delusional beliefs,” with the possible exception of “some one following him in a blue station wagon.” As to that report Hughey offered the cryptic observation that it “opens upon the potential that another individual was present in the area when he was arrested.” Shortly thereafter, he described defendant’s account of the “blue wagon” as an “apparent alibi.” but allowed that it “does have paranoid features.”
Presumably Dr. Hughey was referring only to defendant’s statements during the interview. This is reasonable, since the question he was asked to address was defendant’s competence at that time to assist in his defense. A psychiatric defense, of course, would depend on defendant’s mental condition at the time of the conduct underlying the charges. In that regard it seems germane that the records point to at least three other apparent delusions: that someone had doctored his x-rays, that the DA was interfering with his mail, and that unidentified persons were “making . . . up” the present charges, apparently to “put pressure on” him.
Perhaps this is intended to convey the idea that defendant could have rationally believed he was being watched during his peeping activities on March 6, as indeed the testimony of Mr. Kroeker established. Even if this were known to be the genesis of his “blue wagon” report, however, the assertion that a man or woman was “checking on him . . . all night” by “following him” to “see how [he] was doing” would certainly seem to satisfy ordinary conceptions of “delusion.”
Dr. Hughey found defendant competent to stand trial “as he manifests grossly adequate understanding of the nature of the proceedings against him and shows the ability to cooperate with counsel, despite the presence of a chronic underlying psychotic condition.” Under the heading “Presence of a Mental Defect,” he wrote, “From available history, Mr. Thomas appears to present with a chronic history of schizophrenia. Although paranoid type seems to be most prevalent, based upon record review, undifferentiated type also was noted. Currently, the client remained somewhat guarded and isolative. However, he denied any overt psychotic symptoms. In addition, his thinking processes (e.g., judgment/reasoning) were adequate, as no bizarre mentation or rambling train of thought was noted during the examination. Thus, it appears that only after about eleven days of forced psychotropic medication administration, the defendant appears has [sic] shown improvement. Nevertheless, long-term prognosis is poor. Mr. Thomas displays poor awareness/insight into his mental illness and sees no need for such medication. As such, whenever out of a controlled setting, he relapses and returns back into the criminal justice system.”
B. Analysis
Defendant contends that, given the contents of Dr. Hughey’s report, counsel was ineffective in “failing to present evidence that [defendant] was an unmedicated paranoid schizophrenic at the time of the alleged burglary . . . .”
To prevail on a claim of ineffective assistance of counsel, the defendant must identify acts or omissions by his attorney that “fell below an objective standard of reasonableness” and must demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (People v. Dickey (2005) 35 Cal.4th 884, 907.) In considering the first element, the central question is usually whether the challenged conduct was the result of a lapse of competence, or of a deliberate tactical decision. Unless the absence of a tactical justification appears on the face of the appellate record, a claim of ineffective assistance cannot succeed on direct appeal. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266 [claim can succeed only if “ ‘counsel was asked for an explanation and failed to provide one, or . . . there simply could be no satisfactory explanation’ ”].) Where the lack of a tactical reason does not affirmatively appear, the defendant may establish his claim of ineffective assistance only by a means, such as habeas corpus, that permits the introduction of extrinsic evidence.
Defendant argues that trial counsel was ineffective in failing to employ a psychiatric defense to raise a reasonable doubt that he entered the apartment with the intent to commit theft or rape. The prosecutor established this element of the offense by relying upon circumstantial evidence, including the absence of any “reasonable or . . . lawful” explanation for defendant’s entry. Later he reiterated that “there is no other evidence as to any other reason why the defendant entered the residence other than to take property and/or to rape Sarah Doe.” He hammered on this theme in his rebuttal argument, stating, “Even if you were to believe the defense version that he’s just continuing on his way through the apartment, what is he doing? What is he looking for?” Again he asserted that there was no innocent and “reasonable” explanation for defendant’s presence in the apartment. Similarly he argued, “[T]here is no accounting for why he would take the hat. [¶] There is no accounting for why the defendant was wearing a woman’s wristwatch when he was stopped on March 6th. These are just reasonable inferences that you are required to make.”
Defendant argues that evidence of his schizophrenia would have tended naturally to weaken the force of these inferences. We agree that this appears to have been a promising defense strategy. Dr. Hughey’s own evaluation, though “truncated” as well as constrained by noise, lack of privacy, and the unprivileged nature of the communications, raised at least a substantial possibility that psychiatric testimony might have weakened the inculpatory inferences urged by the prosecution and raised a reasonable doubt about defendant’s actual reasons for entering the apartment.
In a declaration included in the habeas petition, trial counsel indicates that he did consider a psychiatric defense, retaining Dr. Hughey not only with respect to issues of defendant’s competency but also on the question of “the ability of the Defendant to understand the wrongness of his actions; and . . . the ability of the Defendant to formulate specific intent.” He did not pursue the defense in light of Dr. Hughey’s opinions that “(1) the Defendant understood his actions in these cases were wrong; and (2) the Defendant could formulate specific intent in the burglary case.”
In a letter to counsel before trial, Dr. Hughey himself opined in relevant part that defendant knew the wrongness of his conduct based upon his “actions of escape and avoidance, including closing the bathroom door, throwing objects at the victim’s pursuing boyfriend, and having a history of burglary and rape.” In a second letter, written after appellate counsel raised the issues now under review, Dr. Hughey alluded to a conversation between himself and appellate counsel in which there “appeared to be some communication difficulty in addressing the issue of intent to commit the alleged offense versus the ability to form the requisite intent. Related to this issue was [sic] the examiner’s [i.e., Hughey’s] repeated comments [sic] about Mr. Thomas’ ability to demonstrate goal-directed (e.g., cause-and-effect thinking) behavior. This goal-directed behavior was notable for (a) the escape and avoidance behaviors on the part of Mr. Thomas at the time of his arrest, and (b) the selective and volitional presentation abilities, both at the time of the examination, and apparently at the time of the alleged offense per record review and the client’s own comments. [¶] A second issue notable in the phone conversation . . . was that [appellate counsel] stated that the examiner was only able to address the client’s schizophrenia. When the examiner raised the fact that the area of expertise included human behavior and other diagnostic issues, [appellate counsel] seemed to discount any other history (e.g., past criminal history for criminal behavior in the past, as it was ‘only one time’).”
This last comment defies ready comprehension. We surmise that “selective and volitional presentation abilities” means that Dr. Hughey believed defendant could choose how to interact with different people. This opinion apparently rested on Dr. Hughey’s perception that defendant exhibited more cooperation toward him than he reportedly had toward jail personnel. He wrote that “correctional and nursing staff seemed quite surprised that Mr. Thomas engaged in any conversation with the examiner, as the client has refused to answer or otherwise engage with anyone.” But defendant’s cooperation does not seem to have gone beyond his willingness to speak. He still refused to leave his cell, forcing Dr. Hughey to interview him “at the doorway to the cell.” In any event, whatever the soundness of Dr. Hughey’s opinion of defendant’s “volitional presentation abilities” at the time of the interview—after 11 days of involuntary medication—his allusion to evidence of similar abilities “at the time of the alleged offense” is simply baffling. We detect no such evidence.
The questions put by trial counsel, and Dr. Hughey’s answers, suggest a misconception of the law that would govern a psychiatric defense. Neither defendant’s ability to “understand his actions . . . were wrong,” nor his “ability . . . to formulate specific intent” is at issue. His appreciation of right and wrong would be relevant to a defense of insanity, but that is not what appellate counsel suggests here. (See Pen. Code, § 25, subd. (b); People v. Lawley (2002) 27 Cal.4th 102, 170; People v. Skinner (1985) 39 Cal.3d 765, 769.) As for defendant’s “ability” to form specific intent, evidence on that subject (“capacity”) is flatly prohibited. (Pen. Code, §§ 25, subd. (a), 28, subd. (a); People v. Coddington (2000) 23 Cal.4th 529, 582 (Coddington) [“Expert opinion on whether a defendant had the capacity to form a mental state that is an element of a charged offense . . . is not admissible at the guilt phase of a trial”], overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1070, fn. 13.) Similarly, expert opinion as to whether a defendant actually entertained a culpable mental state is categorically inadmissible. (Pen. Code, § 29 (§ 29); Coddington, supra, at p. 582, fns. omitted [“Sections 28 and 29 . . . do not permit an expert to offer an opinion on . . . whether the defendant actually harbored . . . a [required] mental state.”].)
However a defendant is entitled, without pleading insanity, to introduce evidence tending to show that a mental defect caused him to lack in fact the mental state required to make him guilty of a charged offense. (Pen. Code, § 28 (§ 28), subd. (a); Coddington, supra, 23 Cal.4th at p. 582 [code allows evidence of mental illness “relevant to whether . . . defendant actually formed a mental state that is an element of a charged offense”]; id. at p. 583 [defendant was “free to offer evidence that he suffered from a mental disease or defect as well as evidence about that disease or defect,” provided the evidence “offered a basis from which the jury could infer” that he did not entertain the requisite mental state].) And an expert may be called to give such evidence even if he believes the defendant possessed a culpable mental state. (Ibid. [expert testimony supporting inference that defendant lacked required mental state admissible “regardless of whether the expert believe[s] [that the defendant] actually harbored [the required] mental state[]” at time of offense].)
Admittedly, for the code to bar both “capacity” evidence and direct opinion evidence as to a defendant’s actual mental state, while inviting the defendant to introduce psychiatric testimony supporting an inference that he lacked the required mental state because of a mental defect or condition, is a little like amputating a man’s legs and then inviting him to enter the Boston Marathon. Nonetheless, such an invitation is not entirely hollow. Just as an amputee may race in a wheelchair, so an expert may testify about the potential effects of a defendant’s mental disorder or his actual formation of a required mental state. (Cf. Coddington, supra, 23 Cal.4th at pp. 583-584.) In the present case an expert could be asked whether one suffering from paranoid or undifferentiated schizophrenia, or both, could have reasons for entering another person’s home that mentally healthy persons would not share. He might be asked whether such a person could be impelled by his illness to flee or hide from pursuers for reasons other than consciousness of guilt. He might be asked whether a person suffering from paranoid delusions of being followed could enter a residence in order to elude his imaginary pursuers, rather than to commit a felony.
Dr. Hughey appears never to have been asked, nor to have considered, such questions. Instead he may be understood to have opined upon defendant’s capacity to form the requisite mental state, as well as taking it upon himself to determine whether defendant in fact acted with culpable intent. Reliance on such opinions would appear not to furnish a sound basis for a tactical decision not to pursue a psychiatric defense. To be sure, Dr. Hughey’s seeming eagerness to draw conclusions about defendant’s guilt may furnish a tactical explanation for not placing him on the witness stand. But it may also raise doubts about the wisdom of relying on him as an expert consultant. Respondent cites cases holding that counsel is not ineffective for abandoning a potential psychiatric defense where he does so in reasonable reliance on credible expert opinion. (See In re Fields (1990) 51 Cal.3d 1063, 1075 [“When three experts concur in a diagnosis, competent counsel might reasonably believe it pointless to search further in the hope of finding an expert who would offer a different diagnosis, or facts that would support such a view”]; People v. Payton (1992) 3 Cal.4th 1050, 1075-1078 [counsel not ineffective for failing to pursue claim of post-traumatic stress disorder where, inter alia, none of four examining psychiatrists found that or any other mental disorder]; People v. Williams (1988) 44 Cal.3d 883, 944-945 [counsel reasonably relied on opinions of two psychiatrists: “Competent representation does not demand that counsel seek repetitive examinations of the defendant until an expert is found who will offer a supportive opinion”].) Obviously counsel is not obliged to keep shopping for an expert until he finds one who will support a contemplated defense. But neither does he insulate himself from a claim of ineffective assistance by accepting a single opinion that, for obvious reasons, might not be shared by other practitioners in the field. Here, Dr. Hughey’s willingness to draw an inculpatory inference from a rape committed 22 years before the present offense, even as he ignored his own observations of defendant’s plainly delusional tendencies, hardly instills confidence in his suitability as a defense consultant.
We note that despite the freedom with which Dr. Hughey opined on this subject, there is no indication in this record that he was actually aware of the specific mental state required to convict defendant of the charged burglary, i.e., intent to commit theft or rape.
We do not of course intend to foreclose the question whether, in relying upon Dr. Hughey’s opinions under the circumstances then extant, counsel furnished representation that satisfied “an objective standard of reasonableness.” (People v. Dickey, supra, 35 Cal.4th at p. 907.) That will be an issue for determination in the first instance by the superior court. We hold only that on the record presently before us, that opinion did not furnish a sound basis for a tactical decision not to pursue a psychiatric defense. Nor do we foreclose a determination that counsel’s omission was harmless. It may well appear on a fuller demonstration that a sound psychiatric defense could not in fact be mounted, or would create risks outweighing its benefits. We hold only that a prima facie case of prejudice appears because the facts now before us in the appellate record and the petition for habeas corpus demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (People v. Dickey, supra, 35 Cal.4th at p. 907.) In so concluding we bear in mind that a “reasonable probability” for these purposes does not require that the hypothesized more favorable outcome appear more likely than not, but only that it be sufficiently likely to undermine confidence in the conviction. (In re Fields, supra, 51 Cal.3d 1063, 1078; Strickland v. Washington (1984) 466 U.S. 668, 693, 694.) Therefore, while we find the appellate record insufficient to support reversal, we will issue an order to show cause returnable in the superior court.
We typically request informal opposition before issuing an order to show cause in a case such as this, but did not do so here because the issues raised by the habeas petition were adequately addressed in the respondent’s appellate brief and defendant’s reply. The parties will of course be able to air the issues more fully before the superior court.
II. Consecutive Terms: Sequence of Service
The court imposed a 25-years-to-life indeterminate sentence under the Three Strikes Law, specifically, Penal Code section 667, subdivision (e)(2)(A)(ii), plus a five-year sentence enhancement under Penal Code section 667, subdivision (a) (§ 667(a)). At sentencing the court declared that the indeterminate life term was to be served “consecutive to the determinate five-year term.” Similarly, the abstract of judgment recites that the “total term” is “25 years to life c/s [i.e., consecutive to] 5 years determinate term.” This language required defendant to serve the five-year term on the enhancement before serving the indeterminate life term. He contends that in imposing such a requirement, the court erroneously “use[d] . . . the prior felony enhancement as the base term for sentencing purposes.” He asserts that the court’s treatment cannot be reconciled with the definition of an enhancement as an “additional term of imprisonment added to the base term.” (Cal. Rules of Court, rule 4.405(3); italics added.) He notes that section 667(a) itself refers to the term therein provided as an “enhancement.” From this he implicitly reasons that the indeterminate term must be viewed as the “base term” and the enhancement must run consecutively to it, not vice versa.
Respondent contends that the trial court acted in accordance with that portion of Penal Code section 669 (§ 669) stating, “Life sentences . . . may be imposed to run consecutively with one another, with any term imposed for applicable enhancements, or with any other term of imprisonment for a felony conviction. Whenever a person is committed to prison on a life sentence which is ordered to run consecutive to any determinate term of imprisonment, the determinate term of imprisonment shall be served first and no part thereof shall be credited toward the person’s eligibility for parole as calculated pursuant to Section 3046 or pursuant to any other section of law that establishes a minimum period of confinement under the life sentence before eligibility for parole.” (Italics added.) However, the italicized language does not by its terms mandate that the court impose indeterminate terms “consecutive to” determinate ones. It prescribes consequences when the court does so. The preceding sentence refers to terms running “consecutive with” one another. “Consecutive with” does not necessarily mean “consecutive to.” The latter means “after,” while the former may mean only that the events described are sequential rather than simultaneous or concurrent.
Moreover, the sentences quoted by respondent are preceded, and the statute is introduced, by the sentence, “When any person is convicted of two or more crimes, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same judge or by different judges, the second or other subsequent judgment upon which sentence is ordered to be executed shall direct whether the terms of imprisonment or any of them to which he or she is sentenced shall run concurrently or consecutively.” (§ 669, italics added.) This language appears to limit the application of the statute to cases where the defendant is convicted of multiple offenses. Here defendant was convicted of only one offense, for which he was sentenced to an indeterminate term plus an enhancement. Section 669 thus appears not to apply. The trial court therefore lacked authority to treat the enhancement as the base term.
This distinguishes People v. Gallegos (1985) 170 Cal.App.3d 386, which is cited by respondent. The defendant there was sentenced to life for aggravated kidnapping, six years for rape, three years for using a firearm in the rape, and two years for using a firearm in the kidnapping. (Id. at pp. 387-388.) On appeal he argued that section 669 did not permit imposition of the three-year enhancement for the firearm use in the rape, because the statute authorizing that enhancement was not among those then specifically mentioned in section 669. (Id. at p. 388.) The court’s rejection of this argument was rendered superfluous by the 1997 amendments to section 669, which eliminated the reference to specific enhancements. (Stats. 1997, ch. 750, § 1.) Respondent apparently cites the case merely because the trial court ordered the life term to be served “consecutive to” all 11 years imposed for the rape and the two enhancements. (People v. Gallegos, supra, 170 Cal.App.3d at p. 387.) But this directive was not at issue on appeal, and it is of course an ancient and unshaken principle that a decision is not authority for a point not decided. (Hart v. Burnett (1860) 15 Cal. 530, 598; People v. Knoller (2007) 41 Cal.4th 139, 155.)
Disposition
The judgment is modified to provide that the five-year term imposed under Penal Code section 667, subdivision (a), is consecutive to the indeterminate term imposed under Penal Code section 667, subdivision (e)(2)(A)(ii). The trial court is directed to file an amended abstract of judgment so reflecting. The judgment as so modified is affirmed without prejudice to defendant’s petition for habeas corpus.
WE CONCUR: PREMO, J, ELIA, J.
The prosecutor also offered the view that “These letters don’t have to be authenticated, because we are not admitting the letters.” The principal objection, however, was hearsay—that in the absence of the letters themselves, there was insufficient evidence that the reported statements were made by defendant, so as to be admissible as statements by a party. (Evid. Code, § 1220.)
The prosecutor argued that “the hearsay objection is covered by the admissions exception, and the other requirement in regards to the authentication goes more to the weight of the evidence.” This was at best an imprecise statement of the governing law. The letters were admissible over a hearsay objection, as statements by a party, only if they were found to have been authored by defendant. (See Evid. Code, § 403, subds. (a)(3), (a)(4).) His authorship was thus a “ ‘preliminary fact,’ ” i.e., one “upon the existence or nonexistence of which depends the admissibility or inadmissibility of evidence.” (Evid. Code, § 400.) This question of fact was to be determined by the court in the first instance; it could not be deferred to the jury. (Evid. Code, § 310, subd. (a) [“Determination of issues of fact preliminary to the admission of evidence are [sic] to be decided [sic] by the court as provided in Article 2 (commencing with Section 400) of Chapter 4.”]; see id., § 402.) Assuming the court found sufficient evidence to admit the evidence, defendant was entitled on request to an instruction that the jury should disregard it unless it found that the preliminary fact was true, i.e., that defendant had in fact authored the letters described by Mary Doe. (Evid. Code, § 403, subd. (c)(1); cf. id., § 405, subd. (b)(2).)
In her second letter, after expressing the desire to make a statement at sentencing, she wrote, “I [have?] this concern, which I will drop if I do not hear back from you soon. . . . [¶] Troy Benson [the prosecutor] had Laura Aziz (sp.?) testify after my testimony that I said to the effect, to the two of them, that James Thomas had been watching & peeping prior to his entrance and rape against me—because he had said so in his letter. That is untrue. I stated the only thing I remembered from the letter. I’m not at all sure how they came to be in agreement over this, and under oath too. [¶] I guess what raised my bile was the fact that it was & has never been considered of importance that that was erroneous—because it was a clincher against Mr. Thomas! (I doubt it was necessary.) — No. — I was told, I am quoting, ‘Clients recant or minimize their testimony.’ Pho[o]ee. Either they lied for their purposes or they may just as well have, I guess.” (Interlineation omitted.) A marginal postscript added, “Perhaps this is of no importance. I’m sure if it is I will hear from you. Thank you.”
Haldol is a brand name for haloperidol, a “major antipsychotic” for use in treating schizophrenia. (Label approved May 4, 2007, <http://www.fda.gov/cder/foi/label/2007/015923s078,018701s053lbl.pdf> (as of Dec. 28, 2007).)
Ativan is a brand name for lorazepam, an “antianxiety agent” said to be “indicated for the management of anxiety disorders or for the short-term relief of the symptoms of anxiety or anxiety associated with depressive symptoms.” (Label approved Apr. 18, 2007 <http://www.fda.gov/cder/foi/label/2007/017794s034s035lbl.pdf> (as of Aug. 28, 2007).) As of 2007 it was “not recommended for use in patients with a primary depressive disorder or psychosis.” (Ibid.)
Respondent’s position is more nearly supported by In re Monigold (1983) 139 Cal.App.3d 485, 488, where the defendant was convicted of a single felony (second-degree murder), and the court stated in dictum that a two-year firearms enhancement under Penal Code section 12022.5 had to be “served prior to commencement of the indeterminate life sentence.” But again there was no issue as to the propriety of this treatment; the question was the defendant’s entitlement to conduct credits against the two-year enhancement. (In re Monigold, supra, 139 Cal.App.3d at p. 488, fn. omitted.)