P. v. Price
Filed 11/4/13 P. v. Price CA6
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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
LEO DALTON PRICE et al.,
Defendant and
Appellant.
H038436
(Santa Clara
County
Super. Ct.
No. C1111184)
Defendants
Leo Dalton Price and Kristina Pelache appeal a judgment entered following a
jury trial. On appeal, Price asserts the
trial court erred by not declaring a doubt during his trial and sentencing as
to his competence pursuant to Penal Code section 1385.
imposing probation conditions that were unconstitutionally overbroad.
Statement of the Facts and Case
The instant
case arises out of an attack perpetrated by Price, Pelache, and Price’s
brother, Alex, on Price’s second cousin, Greg.
In 2011, Greg was homeless, and was sleeping in a shed on his
92-year-old aunt Carmen’s property.
Carmen is Price’s grandmother. After
the death of Price’s father in 2011, Carmen told Price to not to come around
her property anymore.
Price
resented the fact that Carmen permitted Greg to stay on her property, but would
not allow Price to come around. On May 20, 2011, around 4:00 a.m. while Greg was sleeping in the storage
shed on Carmen’s property, Price yanked the door open. Price told Greg he should leave because he
was not supposed to be there. Price told
Greg to shut up, then called someone on his cell phone and said, “He’s in here,
get in here.â€
After the
cell phone call, Price’s brother, Alex entered the shed and began punching
Greg. Price also began punching Greg and
kicking him in the face. At some point
during the attack, Pelache entered the shed and said, “Grandma turned the light
on.†Alex and Price covered Greg’s mouth so he could not make any noise. Price told Pelache to go wait in the
car. Before she left the shed, she told
Greg he was “getting what you deserve.â€
Alex and Price hit Greg a few more times, then left. When Greg was alone, he discovered that his
wallet, car keys, phone, flashlight, and a buck knife were missing from the
shed.
As a result
of the attack, Greg had cuts to his nose, lip and chest. The left side of his face was swollen, and
the vision in his left eye was affected for weeks. Greg also lost several teeth, and had
continuing headaches.
After the
attack, Price sent letters to Greg and Carmen apologizing for his actions, and
asking for forgiveness. At trial, Price
and Pelache denied they went to Carmen’s house, and denied they attacked Greg.
After a jury trial, defendants were
found guilty of assault with force likely to cause great bodily injury (§ 245,
subd. (a)(1)); battery with serious bodily
(d)); first degree burglary (§§ 459, 460, subd. (a)); and false imprisonment
(§§ 236, 237). In addition, the jury
found that Price had personally inflicted great bodily injury within the
meaning of sections 12022.7, subdivision (a), 1203, subdivision (e)(3), 667,
and 1192.7. The jury also found that
Price had suffered a prior conviction within the meaning of sections 667,
subdivisions (b) through (i), and 1170.12.
Price was
sentenced to serve 12 years in state
prison. The court sentenced Pelache
to four years in state prison, suspended execution of sentence, and placed her
on three years of formal probation. As a
condition of probation, the court ordered that Pelache not “knowingly possess
or consume alcohol or illegal drugs or go to places where alcohol is the known
primary item for sale.†Both Price and
Pelache filed notices of appeal.
Discussion
Defendant
Price asserts on appeal that the judgment must be reversed, because the trial
court did not declare a doubt as to his competency pursuant to section
1368. Pelache asserts the trial court
erred in imposing probation conditions that were unconstitutionally overbroad.
Competency
During the
trial in this case, after the prosecution’s case in chief and during the middle
of the cross-examination of Price, Price’s counsel declared a doubt as to
Price’s competency and asked the court to suspend proceedings pursuant to
section 1368. Counsel argued that she thought
Price was incompetent because he believed Greg had killed his father, made
paranoid comments about the court system, commented in front of the jury that
his counsel was not helping him, and commented about trying to save his
brother, Alex from two life sentences.
Counsel believed that defendant had “decompensated during the course of
the trial probably due to the stress of the trial itself.†Counsel also noted that defendant could not stop
fidgeting at counsel table, and said “hello†to his grandmother, Carmen, when
she was a witness at the trial.
The court disagreed with Price’s
counsel’s assessment, stating that in its view, Price was recalcitrant and
uncooperative, but was not incompetent to stand trial. Moreover, the court noted that Price’s
disagreement with his counsel’s “very good advice†did not make him
incompetent. The court stated that based
on its own observation of Price’s behavior, it had no doubt about Price’s
competency.
At sentencing,
Price had a different defense counsel, who also declared a doubt as to Price’s
competency, and requested that the court appoint doctors to evaluate Price
under section 1368. The court denied
Price’s counsel’s request noting that Price had been interviewed for the
probation report and placed in the general jail population without any question
being raised by either probation or jail personnel about Price’s competency. The court concluded that Price was competent.
Consistent with the due process clause
of the Fourteenth Amendment and state law, the state may not try or convict a
mentally incompetent defendant. (
171-172; § 1367 et seq.) Under the state
standard for competency, which is essentially the same as the federal standard,
a defendant who is “unable to understand the nature of the criminal proceedings
or to assist counsel in the conduct of a defense in a rational manner†is
incompetent to stand trial. (§ 1367; see Dusky
v. United States (1960) 362 U.S. 402 [“ ‘sufficient present ability to consult
with his lawyer with a reasonable degree of rational understanding’ †and a “
‘rational as well as factual understanding of the proceedings against him’ â€].)
If
“a doubt arises in the mind of the judge as to the mental competence of the
defendant†at any time prior to judgment, the court is required to conduct a
hearing pursuant to section 1368 to determine the defendant’s competence. (§ 1368; People
v. Rodrigues (1994) 8 Cal.4th 1060, 1111.) In particular, the trial court is required to conduct
a section 1368 hearing to determine a defendant’s competency “whenever
substantial evidence of incompetence has been introduced. [Citations.] Substantial evidence is evidence that raises a
reasonable doubt about the defendant’s competence to stand trial. [Citations.]†(People
v. Frye (1998) 18 Cal.4th 894, 951-952.) By contrast, evidence that “merely raises a
suspicion that the defendant lacks present sanity or competence but does not
disclose a present inability because of mental illness to participate
rationally in the trial is not deemed ‘substantial’ evidence requiring a
competence hearing.†(
358, disapproved on other grounds in People
v. Bloom (1989) 48 Cal.3d 1194, 1228, fn. 9.)
In
determining whether there is substantial evidence of incompetence, the court
must consider all of the relevant circumstances, including defendant’s behavior
and demeanor, prior medical opinion, defense counsel’s experience, and the
court’s own observations. (
180; People v. Howard (1992) 1
Cal.4th 1132, 1164.) “There are, of
course, no fixed or immutable signs which invariably indicate the need for
further inquiry to determine fitness to proceed; the question is often a
difficult one in which a wide range of manifestations and subtle nuances are
implicated.†(Drope v. Missouri, supra,
420 U.S. 162, 180.) However, “more is
required to raise a doubt than mere bizarre actions [citation] or bizarre statements
[citation] or statements of defense counsel that defendant is incapable of
cooperating in his [or her] defense [citation] or psychiatric testimony that
defendant is immature, dangerous, psychopathic, or homicidal or such diagnosis
with little reference to defendant’s ability to assist in his own defense
[citation].†(People v. Laudermilk (1967) 67 Cal.2d 272, 285.) And, the burden is on the defendant to establish
that he or she is not competent to stand trial. (§ 1369, subd. (f); People v. Marshall (1997) 15 Cal.4th 1, 31.) On appeal, we give the trial judge’s determination
great deference. “An appellate court is
in no position to appraise a defendant’s conduct in the trial court as indicating
insanity, a calculated attempt to feign insanity and delay the proceedings, or
sheer temper.†(People v. Merkouris
(1959) 52 Cal.2d 672, 679.)
“ ‘A
trial court’s decision whether or not to hold a competence hearing is entitled
to deference, because the court has the opportunity to observe the defendant
during trial. [Citations.] The failure to declare a doubt and conduct a
hearing when there is substantial evidence of incompetence, however, requires
reversal of the judgment of conviction. [Citations.]’
[Citation.]†(People v. Lewis (2008) 43
Cal.4th 415, 525.)
The trial
court in this case did not declare a doubt as to Price’s competency, thus the
question is whether there was substantial evidence of his incompetence
demonstrated. Price contends his incompetence was evidenced by his own
behavior. For example, he points to the
fact that he had difficulty following his counsel’s questions on direct
examination, and responded with inappropriate answers. Price’s answers on direct included testimony
that the judicial system was working against him, he was convicted of a prior
felony because the county turned his family against him, that he was forced to
defend himself because defense counsel would not, and that Greg falsely accused
him of the attack because Greg killed Price’s father and did not want him to know
about it. Price also testified that he
wrote the apology letters to Carmen and Greg to appeal to the “Christian[s]†on
the jury. Price asserts his testimony
and behavior at trial was “bazaar, paranoid, and nonsensical,†and necessitated
a hearing to determine his competency.
Price
asserts that in addition to his behavior at trial, the circumstances
surrounding his sentencing also constitute substantial evidence of Price’s
incompetence. At the time of sentencing,
Price’s counsel informed the court that Price was unable to understand the
proceedings against him and meaningfully assist counsel with preparation of a
motion for a new trial and sentencing. Counsel also stated that Price was under
mental health care and was receiving medication while in custody. Price asserts
that this information, coupled with the prior declaration of doubt by counsel
during trial, was sufficient to establish substantial evidence of Price’s
incompetence.
Based on a review of the record of
Price’s demeanor and behavior, we do not find substantial evidence of his
incompetence. Although Price did make
strange comments during his testimony, something more than bizarre statements
and behavior is needed to raise a doubt concerning a defendant’s competence. (People
v. Laudermilk, supra, 67 Cal.2d
at p. 285.) There is not substantial
evidence demonstrating Price did not understand the nature of the proceedings
against him or that he could not assist counsel in his own defense. (§ 1367; see Dusky v. United States, supra, 362 U.S. 402.) In sum, Price has failed to demonstrate that
the court abused its discretion in declining to hold a competency hearing
pursuant to section 1368.
Pelache’s Probation Condition
As a condition of probation, the
court ordered that Pelache not “knowingly possess or consume alcohol or illegal
drugs or go to places where alcohol is the known primary item for sale.†Pelache asserts this condition is
unconstitutionally overbroad on its face and as applied to Pelache.
The basis of Pelache’s argument is
that the portion of the condition that prohibits her ability to go to places
where alcohol is the primary item of sale restricts her right to interstate
travel, and restricts her ability to work in her chosen profession as a
bartender. In addition, Pelache asserts
it is the consumption of alcohol that is related to future criminality, not
being in a place where alcohol is sold.
By failing to object in the trial
court, Pelache has forfeited her challenge to the reasonableness of the
conditions. (In re Sheena K. (2207) 40 Cal.4th 875, 881-882, 885;
232-235.) Pelache’s claim that the
probation condition is unconstitutional as applied, because it restricts her
right to work as a bartender cannot be considered on appeal, because she did
not raise the issue in the trial court.
Ineffective Assistance of Counsel
for Failure to Object
Pelache asserts that she was denied
effective assistance of counsel because her attorney did not object that the
portion of the probation condition prohibiting her from going to a business
where alcohol is the primary item for sale is unconstitutional as applied to
her.
A defendant
claiming ineffective assistance of counsel has the burden of showing (1)
deficient performance under an objective standard of professional
reasonableness, and (2) prejudice. (People
v. Ledesma (1987) 43 Cal.3d 171, 215-218.) Prejudice must be affirmatively
proved. “ ‘It is not enough for the
defendant to show that [counsel’s] errors had some conceivable effect on the
outcome of the proceeding. . . . The
defendant must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.
A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’ [Citations.]†(Id.
at pp. 217-218.)
Here, Pelache cannot establish she
was prejudiced by her counsel’s failure to object to the portion of the
probation condition that restricts her from going to businesses where alcohol
is the primary item for sale. “Probation
conditions have been upheld even though they restrict a probationer’s exercise
of constitutional rights if they are narrowly drawn to serve the important
interests of public safety and rehabilitation [citation] and if they are
specifically tailored to the individual probationer.†(In re
Babak S. (1993) 18 Cal.App.4th 1077, 1084 [probation conditions affecting
the freedom of travel, association, and assembly].) Although the condition impacts Pelache’s
ability to work as a bartender, it is narrowly drawn to prevent Pelache from
consuming alcohol, and promotes both public safety and Pelache’s
rehabilitation. Pelache is an admitted
alcoholic, with a criminal record that includes a conviction for driving under
the influence of alcohol. The condition
withstands constitutional scrutiny, because it is reasonably related to
Pelache’s future criminality. As such,
there is no evidence that had defense counsel objected to the condition, the
court would not have imposed it.
Because Pelache cannot demonstrate
prejudice from her counsel’s failure to object, she cannot demonstrate that she
was denied effective assistance of counsel.
Facial Constitutional Challenge
To the extent that her
constitutional claims present pure questions of law that can be resolved
without reference to the record developed in the trial court, they are not
forfeited. (Sheena K., supra, 40 Cal.4th at p. 889.) We review facial constitutional challenges to
a probation condition de novo. (
183.)
Pelache argues that the alcohol
condition at issue here affects her basic constitutional right of freedom of
travel. “Thus, in order to survive
constitutional scrutiny, such condition[s] not only must be reasonably related to
present or future criminality, but also must be narrowly drawn and specifically
tailored to the individual probationer.†(Ibid.)
A “probation condition that imposes
limitations on a person’s constitutional rights must closely tailor those
limitations to the purpose of the condition to avoid being invalidated as constitutionally
overbroad.†(Sheena K., supra, 40 Cal.4th at p. 890.)
In this case, Pelache challenges a
condition that contains language that restricts her right to go to places where
alcohol is the primary item of sale on the ground that it infringes her
constitutional right to travel. The right to travel (which includes interstate,
intrastate, and “intramunicipal†travel) is “elementary in a free society†and
protected by the United States and California Constitutions. (In re
White (1979) 97 Cal.App.3d 141,
148-149.)
The aspect of the condition
that restricts Pelache from going to places where alcohol is the primary item
of sale is not unconstitutionally overbroad.
The purpose of the condition is to prevent the consumption of alcohol. It is specifically tailored and narrowly
drawn, because it only restricts Pelache from businesses where alcohol is the
where alcohol is sold. Because of its
specificity, the condition has very little impact on Pelache’s constitutional
right to travel. Therefore, the
condition is valid and not unconstitutional.
Disposition
The
judgment is affirmed.
______________________________________
RUSHING, P.J.
WE CONCUR:
____________________________________
PREMO, J.
____________________________________
ELIA, J.
are to the Penal Code.
