P. v. ODell

Filed 4/2/07 P. v. ODell CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Butte)

----

A jury convicted defendant Mark ODell of corporal injury to a former cohabitant, Terri Lynn Lapado (count 2; Pen. Code,  273.5, subd. (a); undesignated statutory references are to the Penal Code) and found as to that count that he personally inflicted great bodily injury ( 12022.7, subd. (e)). The jury also convicted him of assault by means likely to produce great bodily injury on Alia Espy (count 3; 245, subd. (a)(1)) and making criminal threats (count 4; 422).^[1]

Sentenced to a total state prison term of nine years (the upper term of four years on count 2, plus three years for the enhancement, plus one year (one-third the midterm) on count 3, plus eight months (one-third the midterm) on count 4), defendant contends: (1) The judgment must be reversed because the trial court failed to suspend proceedings before trial and obtain an evaluation of defendants competency to proceed. ( 1368.) (2) The trial court violated defendants due process rights by refusing to appoint counsel at defendants request on the day of trial, given the substantial evidence of his incompetency. (3) The upper-term sentence on count 2 is unconstitutional under Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856; 166 L.Ed.2d 856] (Cunningham). Agreeing only with the last contention, we shall affirm defendants convictions, vacate the sentence on count 2, and remand to the trial court for further proceedings.

FACTS

In the early morning of November 6, 2002, defendant invaded the home of Lapado, his former girlfriend and cohabitant, as she slept. He woke her and began to yell at her; refusing to let her leave the room, he went into her closet and began pulling things out, then put them around her neck as he kept ranting. She knew they were supposed to go to court the next day about a May 2002 incident in which she was the victim.

When Lapados daughter, Espy, came home and went to her mothers room, she found Lapado crying, with blood on her face and shirt. Espy tried to call 911, but defendant knocked the phone out of her hand and pulled both women back into the bedroom. He punched Lapado in the mouth, knocking out several teeth. Espy slapped him. He punched her in the face, knocking her down, then kicked and stomped her and told her he was going to kill her.

DISCUSSION

I

Defendant contends that at any of five pretrial hearings the court should have recognized, based on his bizarre comments, obsessions, and behavior, that there was a question about his competency and suspended proceedings under section 1368. We conclude there was no error.

Background

The charges against defendant were initially filed on November 7, 2002. At defense counsels requests, the trial court suspended proceedings under section 1368 on January 22, 2003, and appointed Dr. Paul Wuehler to evaluate defendants competency to stand trial. After finding defendant was not competent, in March 2003 the court ordered him placed at Atascadero State Hospital until his competency was restored.

October 19, 2004

On October 19, 2004, after receiving a certification of mental competency from Napa State Hospital ( 1372), the trial court found defendant competent to stand trial and reinstated proceedings.^[2]

November 30, 20O4

On November 30, 2004, defendant filed a request to represent himself. He later withdrew the request.

March 16, 2005

On March 16, 2005, the date set for jury trial, defendant again moved to represent himself. The trial court (Judge Reilley presiding) granted the request and continued the trial date until April 20, 2005, with a trial readiness hearing scheduled for April 12, 2005.

April 12, 2005

On April 12, 2005, defendant requested a continuance, claiming he had been denied access to the jail law library; he also filed two lengthy documents with the trial court which set out his complaints about his treatment in the county jail and at Napa State Hospital. The court denied the continuance, revoked defendants self-representation, and reappointed the attorney who had previously represented defendant. Defendant made a Marsden motion (People v. Marsden (1970) 2 Cal.3d 118), which was denied. Defendants counsel then expressed a doubt about defendants competency under section 1368. The court suspended proceedings and appointed Dr. Wuehler to examine defendant again.

May 24, 2005

On May 24, 2005, having received Dr. Wuehlers report,^[3]the trial court (Judge Benson presiding) reinstated criminal proceedings and denied defendants request to represent himself, but set a hearing on defendants Faretta motion (Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562]) for June 17, 2005.

June 17, 2005

On June 17, 2005, the trial court (Judge Reilley presiding) granted defendants Faretta motion.

July 29, 2005

On July 29, 2005, the trial court (Judge Reilley presiding) held a hearing to address several matters, including defendants pretrial discovery motion and his request for a different investigator. After confirming August 16, 2005, as the date to set the matter for jury trial, the court observed that the People had made a settlement offer. The prosecutor said he would accept a four-year felony plea on the section 273.5 count (which would mean defendant would be released in about five more months because he had three years credit for jail time served) and noted that defendants maximum exposure was around 15 years. Defendant said he would think it over.

When the court asked if defendant had any other issues, he asserted that his public defender had lied in open court about not having received defendants request for informal discovery and had refused to do it, forcing defendant to prepare a discovery motion himself. Defendant also complained about the purported violations of his rights in the jail which he had already documented in a letter to the court.

August 16, 2005

On August 16, 2005, defendant objected to putting the trial-setting date off beyond another two or three weeks. The trial court set the date for August 30, 2005.

August 30, 2005

On August 30, 2005, defendant complained about not getting discovery from the People. After the prosecutor responded, the trial court set the matter for jury trial on October 19, 2005, with the trial readiness conference on October 12, 2005. Defendant asserted he was still not getting enough time in the jail law library; the court issued a remand order to increase defendants time.

October 12, 2005

On October 12, 2005, the trial court noted that defendant had filed a number of motions, which there was no time to read and address that day; the matter was continued to the next day. The prosecutor put on the record that defendant had again been offered four years and the offer would remain on the table for another day. Defendant said he would consider it, then returned to his discovery issues.

October 13, 2005

On October 13, 2005, the trial court (Judge Howell presiding) held a settlement conference. After noting that he was not the trial judge, Judge Howell stated that this was the last chance to enter a plea bargain. The prosecutor explained that in addition to the case pending trial, there was a misdemeanor domestic violence case in which Lapado was the alleged victim (the May 2002 incident originally set for trial when defendant committed the present offenses) and a case of driving under the influence (DUI) in which defendant pled guilty in September 2002 but had not yet been sentenced. The prosecutor reiterated that the People were offering a plea to a four-year felony in the present case, which would give defendant another 52 days in custody; if defendant rejected the offer, this case could land him with at least three strikes.^[4]

Defendant responded:

I also understand that I have been in jail for three years coming this next month on the 6th, that I was put in Napa State Hospital, Atascadero Hospital, because without having any testing done, psychological testing done, just absolutely, just whisked away.

I know nothing about the law. I have practiced law now for three years. That wouldnt have happened to me if I knew more about the law. I just know that I was just kind of whisked away and brought back.

I have asked for a lot of constitutional guarantees from the California State Constitution and the United States [C]onstitution. Before my preliminary hearing, I was a pro per.

I had an attorney. That attorney did not secure any investigation in my case, did not secure any of the DAs discovery so I could have my witnesses present and cross[-]examine them and confront them. As a matter of fact, the DA was chewed out by the judge . . . for not having that available before the preliminary hearing to my attorney.

Again, I find myself right now trying to make a decision between a plea bargain and going to trial and dismissal because of these violations.

I am asking a lot of these things here, like the 54-page discovery for a lot of things. It was granted by Judge Reilley. It was granted me these things I am asking for in a 54-page discovery. I think he granted me like 30 or 20 or something, and I have received none of them. I asked for additional discovery in this thing, which I guess eight or ten, ten or eight. I have received none of that. The photographs I have asked for, I have received three of the victim, Terri Lapado, and four of Alia [Espy]. At the preliminary hearing I got to view the photographs, and there was at least 12.

I kept asking for these things. I received nothing.

My investigator has done nothing I have asked him to do. I have asked him to go over with the 27-page questionnaire to my person [sic] who has known Terri Lapado 27 years, a mutual friend of ours, and questions, he left for two weeks, for him to go over with her, because they are friends; and I get the questions back on the 4th of this month that are barely answered. I mean, he didnt ask the questions like I asked him to. This is the second time that he hasnt interviewed my main witness in my case. The first time he totally didnt do anything I asked him to. I asked him, ended up taking a two-page statement in a bar on alcohol. That was ridiculous.

I have asked him to get ahold [sic] of Charley Yarborough.

I am the one with bite marks. None of that was on the police report. They committed a lie on the police report. Charley Yarborough was never looked up. I gave the name, the address, the street. He lied to me for four months, said no such person lived there. Well, then all of a sudden he lives there, and he gives a paragraph of, yes, she came over, took the car off my private property. There goes my Puegot [sic], there goes my Lincoln. She burglarized my storage bin. I asked him to go over, do something like that. I didnt -- I did a deuces [sic] tecum on that but not a full deuces [sic] tecum.

Explaining that he was there only to determine if the parties would reach a plea bargain, Judge Howell restated the prosecutors offer.

Defendant answered:

I dont expect the Court to understand this, but I had a dog named Zufi, Z-u-f-i, for twelve years. I loved that little dog. These people dropped him off, sole [sic] my car, bank account and knocked my teeth out; so I think I can prove in court that these people are nothing but liars.

I started a three million dollar lawsuit, because her youngest son I took care of for three years, got him counseling. He was deranged, killed and shot his father in Fairbanks, Alaska. There is a lawsuit. I think this is, all of this large amount of money that is coming through. Excuse me.

After Judge Howell refocused defendants attention on the plea offer, defendant said he needed more time to think about it, then added: I was under the impression from Judge Reilley yesterday that we were going to go over the motions that I filed, we were going to make some decision on those motions today. I think the deal is fair and all that, but I just -- three years on something, I would ask the DA, and I ask you, Your Honor, that if you know you are innocent of a charge, of these charges, would you take a deal? Would you admit something, your guilt to something you are not guilty of? Maybe I am crazy. Being Vic ODells grandson out of Independence, Missouri, I am not sure if I can do that.

Following further discussion, Judge Howell offered to trail the case until later in the day to give defendant more time to make his decision. Defendant said he did not need more time and rejected the offer, explaining:

You know, I know these people. I came into these peoples lives with one son that hung himself. The other son is just absolutely bonzo. I hear now that he has got charges of his own on domestic violence, two charges, running from the law. Serious mental problems with these people, and one killed his father. I am thinking, well, I dont know what I can do for these people, but when I saw the three grandchildren and the woman who did this to me with no running water, no electricity, living in a hot trailer out in the middle of Corning . . . . I made a decision on the spot that I was going to take the baggage then of the other three children that were older, and I never thought it would end up being like this; but the stalking of three years, breaking out my windshield, attacking me in hotel rooms, beating me up, scratching my chin up; all the things they have done to me, and now this. I cannot take a deal on this. If it puts me away the rest of my life, I will go with a smile rather than see these people get away with anything more than they have gotten away with with those children and myself and what they have done with killing my dog, I cannot deal with it anymore. He explained further that Lapados prior lies would be exposed at trial because she was too honest to lie convincingly to a jury, while her daughter, who walked in and started punching everybody in sight . . . , has a drug problem. She has a well-known drug problem and prostitution.

Judge Howell ruled that the matter was set for trial and all deals were off the table. When told trial would start next Wednesday, defendant said he needed to have his motions heard and his discovery provided first. The prosecutor responded that the motions would be heard that afternoon and all discovery had been provided. After further discussion, Judge Howell revoked his ruling and trailed the matter briefly.

Proceedings resumed before Judge Reilley, the assigned trial judge, who stated the matter was confirmed for trial the next Wednesday and defendants motions would all be heard before then.

October 18, 2005

On October 18, 2005, Judge Reilley conducted a trial assignment hearing. He ruled that all of defendants motions would be heard the next morning.

Defendant made an oral motion to disqualify Judge Reilley under section 170.6. Judge Reilley explained that if he accepted the disqualification, the case might be reassigned to Judge Benson, against whom a section 170.6 motion had previously been filed. Defendant said he understood and accepted that possibility. He also moved for a continuance because of problems with his investigator. Judge Reilley accepted the disqualification.

Later that day, Judge Benson held a hearing at which he ruled that jury selection would start the next day before him. Defendant moved again for a continuance, asserting that his investigator had been uncooperative and had threatened my life after defendant complained about him. Judge Benson asked whether defendant was sure he wanted to continue in pro per. Defendant claimed another attorney might step in on my case, but he had not heard anything more about it yet.

In response to Judge Bensons question about defendants plans to get on with [his] life, defendant stated: I lost over $2 million already in this. Ive lost my dog, all my cars. []  I have some people that wanted to start a business, because I do international trade, and Im going to start the international trade business. Thats what Im going to do with my life. [] . . . [] . . . I have a lot to contribute to society. Everyone knows Ive done a huge amount of studies in my life. Defendant had intended to ask that the case be dismissed for Sixth and Fourteenth Amendment violations, but now he expected to resolve it with a 200-page mandate motion in the Appeals Court.

Defendant also stated that when he had previously turned down the Peoples plea offer, he had not known that the charge under section 273.5 was a wobbler, which he might eventually be able to get taken off his record. Judge Benson confirmed that this might be possible.

October 19, 2005

On the morning of October 19, 2005, defendant said he wanted to discuss the offer a little bit more. Asked what he wanted to discuss, defendant said: Ive lost over $1 million. Ive got liver damage because of what they did to me at Napa State Hospital. Three years of my life, two teeth missing, nerve damage to my hand. A huge amount of more than $1 million lost and three years of my life. I dont want to pay any restitution. He also asked if it was on the table to take away the DUI, meaning that he wanted to withdraw his plea. The court noted that was impossible. The prosecutor said all offers were off the table.

Judge Benson then proceeded to defendants motions. Defendant complained that there were no evidence law books in the jails law library, said it would be suicide in this case for him to proceed pro per without having the one thing you need to go to trial, and asked for appointment of counsel. Judge Benson reviewed the history of the case, then denied the request because this is the eve of trial and defendant had already requested self-representation twice after having had counsel appointed.

Analysis

A defendant is mentally incompetent . . . if, as a result of mental disorder . . . , the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner. ( 1367, subd. (a).)

If, during the pendency of an action and prior to judgment, a doubt arises in the mind of the judge as to the mental competence of the defendant, he or she shall state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent. If the defendant is not represented by counsel, the court shall appoint counsel. At the request of the defendant or his or her counsel or upon its own motion, the court shall recess the proceedings for as long as may be reasonably necessary to permit counsel to confer with the defendant and to form an opinion as to the mental competence of the defendant at that point in time. ( 1368, subd. (a).)

State law and federal due process bar the trial or conviction of a mentally incompetent defendant. (People v. Rogers (2006) 39 Cal.4th 826, 846 (Rogers).) Both require a trial judge to suspend trial proceedings and conduct a competency hearing whenever the court is presented with substantial evidence of incompetence, that is, evidence that raises a reasonable or bona fide doubt concerning the defendants competence to stand trial. [Citations.] The courts duty to conduct a competency hearing may arise at any time prior to judgment. [Citations.] Evidence of incompetence may emanate from several sources, including the defendants demeanor, irrational behavior, and prior mental evaluations. [Citations.] (Id. at p. 847.)

A trial courts 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.] (Rogers, supra, 39 Cal.4th at p. 847.)

When a competency hearing has already been held and the defendant has been found competent to stand trial . . . , a trial court need not suspend proceedings to conduct a second competency hearing unless it is presented with a substantial change of circumstances or with new evidence casting a serious doubt on the validity of that finding. [Citations.] [Citations.] (People v. Jones (1997) 15 Cal.4th 119, 150 [overruled on another ground, People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1].)

Here, criminal proceedings were suspended and reinstated twice under section 1368: from January 2003 to October 2004, and from April 2005 to May 2005. Each time the trial court reinstated proceedings after obtaining expert reports attesting to defendants competence. Thereafter, three different trial judges (Judges Reilley, Howell, and Benson) conducted multiple hearings at which they had ample opportunity to observe defendants demeanor and consider whether his often-rambling statements raised any new doubts about his competence. All evidently found no basis for any such doubt.

Despite the deference due to the judges decision not to hold a third competency hearing (cf. Rogers, supra, 39 Cal.4th at p. 847; People v. Jones, supra, 15 Cal.4th at p. 150), defendant asserts the case is reversible per se because his behavior during the pretrial hearings was substantial new evidence of incompetence which the judges improperly ignored. (Cf. Rogers, supra, 39 Cal.4th at p. 847.) We disagree.

More is required than just bizarre actions or statements by the defendant to raise a doubt of competency. (People v. Marshall (1997) 15 Cal.4th 1, 33.) Defendant points to nothing more here. He argues that his failure to accept the Peoples plea offer before it expired showed irrationality, but poor judgment (not unheard of among criminal defendants) does not prove, or even suggest, incompetence to stand trial. Furthermore, from reading all of defendants statements together and in context it appears that he had a rational, if misguided, defense strategy: to get the case dismissed for supposed constitutional violations, or, if that failed, to prevail at trial by exposing his accusers as liars and portraying himself as the victim of their familys wrongdoing. He clearly explained that his belief in this strategy was one of the reasons he hesitated to accept the Peoples offer. He may have misjudged the admissibility, relevance, and probative value of much of the evidence he hoped to introduce, but such misperceptions are also common among criminal defendants and fail to indicate incompetence.

In short, defendant has not shown that there was substantial evidence of his incompetence before trial which should have induced the trial court to suspend criminal proceedings for a third time.

II

Defendant contends Judge Benson erred reversibly by denying his last request for appointed counsel, made the day before the scheduled start of jury trial and after repeated fluctuations between self-representation and representation by counsel. The only basis for this contention is his claim that he could not properly represent himself because he was incompetent to stand trial. As we have rejected that contention, we necessarily also reject this one.

III

We requested and received supplemental briefing from the parties on whether the upper-term sentence on count 2 violated the Sixth Amendment to the United States Constitution in light of Cunningham, supra, 547 U.S. ___ [127 S.Ct. 856; 166 L.Ed.2d 856]. We conclude it did.

After the verdict was returned, defendant waived referral to probation and demanded immediate sentencing. The prosecutor represented to the trial court that defendants rap sheet (which was not before the court and is not in the appellate record) revealed three prior out-of-state convictions: a 1977 conviction for second degree burglary in Missouri, a 1981 conviction for resisting arrest in Missouri, and a 1984 conviction for second degree assault in Colorado. Defendant purported to dispute one of these convictions, but presented no evidence that it had not occurred; he tacitly conceded the others.

Following argument, the trial court imposed sentence on count 2: And because I do find that the victim was very vulnerable in this case . . . [t]he court is going to impose the upper term[,] four years. I find that to be appropriate because circumstances [in] aggravation do outweigh those in mitigation as follows; and that is, that the victim was particularly vulnerable. Your prior record plays into this decision as well, and the nature and injuries [sic] that were inflicted in this case.

The United States Supreme Court held in Cunningham, supra, 549 U.S. ___, at page ___ [127 S.Ct. 856, 862; 166 L.Ed.2d 856, 862; 2007 Daily Journal D.A.R. 1003, 1009] that under Californias Determinate Sentencing Law the middle term is the statutory maximum which a judge may impose solely based on the facts reflected in the jury verdict or admitted by the defendant. Thus, except for a prior conviction, any fact that increases the penalty for a crime beyond the middle term must be tried to the jury and proved beyond a reasonable doubt.

The People first assert that defendant has forfeited the issue because he did not raise it in the trial court. The People are wrong.

Defendant was sentenced on November 7, 2005. Before that, on June 20, 2005, our Supreme Court had decided People v. Black (2005) 35 Cal.4th 1238, which held that a defendant does not have a right to have a jury determine aggravating factors used to impose the upper term. (Id. at p. 1244.) Black was controlling law at the time of defendants sentencing. Defendant was not required to make a futile objection. It is pointless to require a defendant to ask a trial court to overrule a decision of the California Supreme Court. (Moradi-Shalal v. Firemans Fund Ins. Companies (1988) 46 Cal.3d 287, 292, fn. 1.)

The People next assert that the upper term was validly imposed because the trial court based it on defendants prior convictions, a well-settled exception to the rule of Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] and Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] which the high court applied to California sentencing law in Cunningham. We disagree. On this record, we cannot find beyond a reasonable doubt that the trial court would have imposed the upper term based on defendants prior convictions alone had it known that the other grounds it employed were invalid. The court mentioned defendants prior record only as a factor that plays into this decision, not as the main factor. The ground the court mainly relied on was the aggravating circumstance of the victims vulnerability, which is a factor that must be tried to the jury under Cunningham. So, too, is the other factor the court mentioned, the nature of the victims injuries.

In light of the above, we shall vacate defendants sentence on count 2 and remand the matter to the trial court. Within 30 days of the filing of our remittitur, the trial court shall determine whether to impose the upper term based on defendants prior convictions alone; if it does not do so, the District Attorney shall have 15 days after the trial court has made its decision to elect whether to try aggravating factors to a jury (unless waived by defendant) or to stipulate to imposition of the middle term.

DISPOSITION

All of defendants convictions, and his sentences on counts 3 and 4 and the great bodily injury enhancement, are affirmed. The sentence imposed on count 2 is vacated. The matter is remanded to the trial court for further proceedings as to count 2 in accordance with part III of this opinion.

SIMS , J.

We concur:

SCOTLAND, P.J.

MORRISON , J.

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^[1] The jury acquitted defendant of count 1 (residential burglary; 459), and the People dismissed the original count 4 (dissuading a witness by force or threat; 136.1, subd. (c)(1)).

^[2] This certification, filed by the medical director of the hospital, defined defendants current diagnosis as BIPOLAR DISORDER NOS with substance abuse (Axis I) and Personality Disorder, NOS (Axis II). The medical staff opined that defendant was managing his mental illness sufficiently to stand trial and suffered no cognitive impairment to understanding the nature of the proceedings or assisting counsel, although he sometimes exhibited rigid thinking and grandiosity.

^[3] This report is not in the record.

^[4] The prosecutor later clarified that, if defendant were convicted in this case, adding in the time to be served on the DUI and the misdemeanor domestic violence case (if convicted), defendants total term would be about six years in state prison, minus the credits already earned in jail. Judge Howell reminded defendant again that some of the current counts were strikes.