P. v. Harrington

Filed 6/7/06 P. v. Harrington CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Los Angeles County Superior Court, Mark C. Kim, Judge. Affirmed and remanded for further proceedings.

John Hardesty, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Joseph P. Lee and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

A jury convicted defendant and appellant Chad Mick Harrington (defendant) of two counts of attempted murder (Pen. Code, §§ 664/187, subd. (a)[1]) two counts of assault with a deadly weapon by means likely to produce great bodily injury (§ 245, subd. (a)(1)), one count of second-degree robbery (§ 211), and one count of battery upon a custodial officer (§ 243.1). The jury found true allegations that the attempted murders were willful, deliberate, and premeditated (§664, subd. (a)); that defendant personally used a deadly weapon (§12022, subd. (b)(1)); and that defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)). The trial court found true allegations that defendant had suffered a prior serious felony conviction within the meaning of sections 667, subdivision (a), 667 subdivisions (b) through (i), and 1170.12, subdivisions (a) through (d), and that he served three prior prison terms as set forth in section 667.5, subdivision (b). The trial court sentenced defendant to state prison for two consecutive life terms plus 19 years and four months.

On appeal, defendant contends that the trial court's pretrial finding that defendant was competent to stand trial within the meaning of section 1368 was not supported by substantial evidence; the trial court violated his constitutional rights to confrontation and due process under Crawford v. Washington[2] by relying on a hearsay report concerning his competence to stand trial; the trial court violated his rights to due process and a fair trial by failing to declare a doubt as to defendant's competence during trial; and, alternatively, defense counsel provided ineffective assistance with respect to the issue of defendant's competence to stand trial. Defendant also contends that the trial court failed adequately to warn him of his Fifth Amendment right not to testify and the pitfalls of testifying before he testified at trial. Respondent contends that this case must be remanded for resentencing because the trial court erred in sentencing defendant to consecutive â€