P. v. Jones

Filed 8/7/06 P. v. Jones CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kings County. Peter M. Schultz, Judge.

Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Lloyd G. Carter and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

STATEMENT OF THE CASE

On February 4, 2004, an information was filed in the Superior Court of Kings County charging appellant David Lawrence Jones with counts I and II, assault with a deadly weapon and by means of force likely to produce great bodily injury with, respectively, a knife and a baton (Pen. Code,^[1] § 245, subd. (a)(1)); count III, battery resulting in the infliction of serious bodily injury (§ 243, subd. (d)); count IV, forcible sexual penetration (§ 289, subd. (a)(1)); and count V, attempted forcible sexual intercourse (§§ 664/261, subd. (a)(2)). As to counts I, II, IV, and V, it was alleged appellant personally inflicted great bodily injury (§ 12022.7, subd. (a)). As to counts III, IV, and V, it was further alleged appellant personally used a dangerous and deadly weapon, a knife, in the commission of the offenses (§ 12022, subd. (b)(1)). Appellant pleaded not guilty and denied the special allegations. On February 26, 2004, appellant pleaded no contest to count III and admitted the personal arming allegation; the court granted the prosecution's motion to dismiss the remaining counts and allegations, and the charges in an unrelated case.

On April 2, 2004, the court convened the sentencing hearing, but declared a doubt as to appellant's mental competency and suspended the proceedings pursuant to section 1368.

On September 20, 2004, appellant's jury trial on competency began. On September 21, 2004, the jury found appellant competent to stand trial.

On October 18, 2004, appellant moved to withdraw his no contest plea and admission, and argued he was not competent when he entered the plea. On November 2, 2004, the court granted appellant's motion to withdraw his plea and admission.

On March 16, 2005, the court granted the prosecution's motion to amend the information so that count I was assault by means of force likely to produce great bodily injury, and count II was assault with a deadly weapon, a knife. The knife allegations as to the deadly weapon enhancements for counts IV and V were stricken. Thereafter, appellant's jury trial began on the substantive charges.

On March 18, 2004, appellant was convicted of counts I, II, and III, and found not guilty of counts IV and V. The jury found true the great bodily injury allegations as to counts I and II. As to count III, the jury found appellant personally used a deadly weapon, a baton, but that he did not use a knife.

On May 4, 2005, the court denied probation and imposed an aggregate term of nine years eight months for this case and a companion case. As to count II, the court imposed the upper term of four years, plus a consecutive term of three years for the great bodily injury enhancement. The court stayed the term imposed for count I pursuant to section 654, and ordered count III stricken as an alternate charge. In case No. 05CM0488, appellant pleaded guilty to possession of cocaine (Health & Saf. Code, § 11350. subd. (a)), and admitted an on-bail enhancement (§ 12022.1), and was sentenced to consecutive terms of eight months for possession, and two years for the enhancement.

On May 13, 2005, appellant filed a timely notice of appeal.

FACTS

Appellant was convicted of aggravated assault and battery for the beating of Sheila G. The incident occurred when he invited her to his house to smoke crack cocaine and have sexual relations, he accused her of stealing money and jewelry, and he beat her with a baton and cut her with a knife. Appellant initially pleaded guilty to felony battery, but the court declared a doubt as to his competency and suspended criminal proceedings. During a two-day jury trial on competency, the experts agreed appellant was a paranoid schizophrenic but disagreed as to whether his symptoms could be controlled with medication. Appellant's physician testified that appellant had been taking medication for five months and was competent, but he would not be competent if he was not on medication. The jury found appellant was competent. However, the court allowed appellant to withdraw his guilty plea because it found he was not competent when he entered the plea.

Thereafter, a jury trial was held on the charged offenses. Appellant called his mother as a defense witness, to support his version of events. The court conducted an evidentiary hearing outside the jury's presence as to whether the prosecution could cross-examine appellant's mother about her fear of appellant. Appellant became agitated and interrupted the proceedings, and said he wanted to plead guilty and he couldn't stand it anymore. Defense counsel asked the court to conduct another section 1368 because appellant had not been taking his medication for three months, and he was irrational because he wanted to plead guilty. The court denied counsel's request to suspend the proceedings, and appellant's jury trial continued.

Appellant was convicted of two counts of aggravated assault and one count of battery, and sentenced to nine years eight months in prison. On appeal, he contends the court should have suspended the proceedings and conducted another competency hearing based on his outburst at the evidentiary hearing about his mother's testimony. He also contends the court abused its discretion when it permitted his mother to testify that she was afraid of him, and the court improperly imposed an upper term in violation of Blakely v. Washington (2004) 542 U.S. 296 (Blakely).

The issues about the competency hearing and his mother's testimony are necessarily interrelated, based on the factual and procedural history of this case. We will thus review the facts of the offense, and then examine the procedural history of appellant's guilty plea, the competency trial, the trial on the substantive charges, defense counsel's request for another section 1368 hearing, and the court's ruling on the admissibility of his mother's testimony.

The Charged Offenses

One afternoon in January 2004, 14-year-old E.H. asked her friend, 17-year-old C.H., if she wanted to make some money by helping appellant move some furniture. Appellant was E.H.'s friend. C.H. did not know appellant, but she agreed to help with the furniture. Appellant picked up the girls and drove them to the house he shared with his elderly mother in Hanford. C.H. testified he drove a black Mustang with skull stickers on the back.

When they arrived at appellant's house, C.H. and E.H. went into appellant's bedroom and smoked marijuana cigarettes. Appellant told them that he liked to smoke crack cocaine, and offered to put some into their marijuana cigarettes. C.H. and E.H. declined and continued to smoke marijuana, and then they helped him move furniture. Appellant paid them $20 each for moving the furniture, and drove them back to their apartment.

C.H. knew that her cousin, Sheila G. (Sheila), liked to smoke crack cocaine, and mentioned this fact to E.H. C.H. testified that E.H. called appellant and asked him to stop by Sheila's apartment to meet Sheila. Appellant arrived and talked with Sheila, and they agreed to get together that evening. C.H. testified the plan was for Sheila to get high with appellant and then return to her apartment.

Sheila testified that on January 3, 2004, E.H. and C.H. arrived at her apartment, and E.H. said that she knew a guy who was interested in a girl who could perform oral sex and party with him.^[2] Sheila agreed to meet him and E.H. immediately set up a meeting. Appellant arrived at Sheila's apartment and they went outside to meet him. E.H. introduced Sheila to appellant, and said that Sheila "'likes to do the same things that you like,'" such as smoking dope and crack cocaine. Sheila testified they also discussed oral sex. Appellant said he could get some cocaine, and he would pay Sheila $150 if she would perform oral sex on him.^[3] Sheila agreed to get together with him later in the evening, and appellant said he would pick her up at 8:00 p.m. Sheila asked C.H. to stay with her handicapped teenage daughter that night, and C.H. agreed.

Sheila testified that appellant picked her up at 8:00 p.m. on January 3, 2004, and drove her to his house.^[4] Appellant said that he lived with his mother. They went into the house and appellant offered her crack cocaine, and they both smoked some in a glass pipe. Appellant also smoked some marijuana. Appellant showed her a book of Polaroid photographs of young girls in various pornographic poses. Appellant referred to the pornographic photographs as his "art work" which he liked to do in his spare time. Sheila recognized E.H. as one of the naked girls who posed for appellant. Sheila testified the photographs were a "turn off" for her, and she became "kind of leery and scared." Appellant asked her to take off some of her clothes. Sheila removed her blouse and appellant took off his pants. Sheila testified that she did not want to go through with the oral sex but did so anyway.

Sheila testified she performed the oral sex act, but appellant could not perform and became frustrated. Appellant placed "quite a bit" of cash on the bed, including a $100 bill, and said she could take the money if she continued. Sheila refused the money, and said she wanted to go home because she was "already loaded. I was so high. I knew it was wrong anyway, so I changed my mind." Sheila believed appellant was also "loaded."

Sheila testified appellant walked out of the room because he was frustrated. Despite her refusal to continue, Sheila testified she picked up "enough money" from the bed, including the $100 bill. When appellant returned to the room, he realized the money was gone and demanded to know where it was. Sheila denied taking anything, even though the money was in her pocket.

Sheila and appellant argued about the missing money, and appellant left the room again. Sheila replaced the money on the bed because she felt guilty about taking it. "I attempted to steal his money, but I put it back."

Appellant returned to the room and accused her of taking some rings. Sheila testified she did not take any of appellant's jewelry and told appellant so. Sheila asked appellant several times to take her home. Appellant became upset and screamed that she was not going anywhere, and she had to finish.

Sheila testified appellant produced a stick, swung it around, and beat her with it. Appellant hit her multiple times across her face, nose, head, mouth, and chest, and she fell down. Sheila grabbed a lamp and threw it at appellant, but she missed him. Aside from throwing the lamp, Sheila was unable to defend herself. Sheila did not have a knife or any other weapon, she never hit appellant, and she never saw him wounded or injured.

Appellant continued to beat her with the stick and repeatedly screamed, "'How do you like me now?'" Sheila testified appellant acted violent as he beat her with the stick, as if he were a different man. She was bleeding from her nose, mouth, and face.

Sheila testified she was laying on her back on the floor, when appellant leaned over her body, produced a knife, opened the blade, and cut her arms and legs. As he cut her, he repeatedly said, "'How do you like me now, Sheila?'" Sheila was bleeding from all her wounds and was too high to fight back.

Sheila testified that appellant pulled off her pants, got on top of her, and tried to perform an act of sexual intercourse. He was moving on top of her but she was too high and weak to realize if he sexually assaulted her.^[5] Sheila testified there was a lot of blood in the room, "all over the place," from the beating and knifing.

In the meantime, C.H. was still at Sheila's apartment, waiting for her to return. Around 3:00 a.m. on January 4, 2004, C.H. called appellant's cell phone to find out when Sheila was going to return. Appellant accused C.H. of stealing some rings from him, and said "that I would be dealt with just like Sheila is being dealt with right now." Appellant did not let C.H. speak with Sheila and hung up on her. C.H. was afraid and thought appellant was going to hurt Sheila.

C.H. called appellant back at 4:00 a.m. and again asked for Sheila. Appellant said he knew that C.H. sent Sheila to his house to steal from him, that she set up the whole thing, and "he was going to run me over and leave me dead in the street if I didn't give him back his rings and his stuff." C.H. did not know what he was talking about and testified she did not take anything from appellant's house.^[6]

Later that morning, appellant called C.H. and accused her of stealing his rings, and said he "had whipped Sheila's ass and that he was going to run me over with his car and I was next." C.H. was frightened from appellant's threats and decided to call the police. She did not know what was happening to Sheila. C.H. testified appellant subsequently spoke with E.H., said he found the rings, and apologized for accusing them of stealing.

Sheila believed appellant beat her for "at least an hour." Appellant stopped beating her and left the room, and Sheila passed out from the pain and bleeding. She was still on the floor when appellant's mother woke her up. Appellant's mother told her to clean up and leave before appellant killed her. "He has a good mom." Sheila realized appellant's mother heard the beating. "She must have heard something, because she saved my life." "If it wasn't for his mom, I would have never made it." Sheila went into the bathroom to wash. Sheila was naked, scared, and bloody, and wanted to get out of the house. She tried to climb out the bathroom window but she could not open it.

Sheila grabbed some of appellant's clothes and ran out of the house. Appellant was in the driveway, crouched down and crying. The police were there and asked who she was. Sheila replied, "I'm the girl that he beat up."

Shirley Jones, appellant's mother, testified she was asleep in the front part of the house when she heard appellant repeatedly yell for help and to call 911 because he had been robbed.^[7] Mrs. Jones called the police from her bedroom and they responded to the house. Mrs. Jones went outside and found appellant on the ground. Appellant had blood on his hands, and was yelling for help and that he had been robbed. Mrs. Jones saw another person talking to the police, but she thought that person was a neighbor. Appellant told his mother that a woman stole money and his rings from him. Mrs. Jones went back into the house and found money wadded up on the dining room table, along with two rings and a small knife.

Mrs. Jones testified she was shocked by the incident, and "when I'm shocked ... everything gets mixed up." Mrs. Jones had trouble remembering the sequence of events, such as what she said to the 911 operator, whether appellant also talked to the 911 operator, or exactly when he was arrested. Mrs. Jones insisted she never saw a woman in her house or helped a woman clean up and leave.

The tape-recording of Mrs. Jones's 911 call reflected that she asked for the police because "'my son brought a girl home unbeknownst to me.'" The transcript also reveals that appellant picked up another telephone in the house and yelled for help, while his mother was still talking to the dispatcher.

Around 5:00 a.m. on January 4, 2004, the police responded to appellant's house and found Sheila in the front yard. Sheila told them that appellant had beaten her. Sheila was taken to Hanford Community Hospital and treated for her injuries, and released the same day. Sheila later went to University Medical Center for surgery to repair her broken nose, and was in the hospital for three days.

The police did not immediately arrest appellant that morning. Instead, an officer met Sheila at Hanford Community Hospital and asked her about the incident. Sheila stated that appellant beat her with a baton and cut her with a knife. She denied taking any of appellant's money.

The police returned to appellant's house around 6:00 p.m. on January 4, 2004. Mrs. Jones answered the door, and appellant was in a wheelchair with a badly swollen left ankle. Appellant was arrested and transported to Hanford Community Hospital for treatment of the ankle injury. As an officer drove him to the hospital, appellant spontaneously said that he was bipolar, and that "'[s]he took my money, so I beat her ass with my fists. I did not hit her with a shovel or any other weapon. I didn't even get sex. She set me up. She had a guy outside of my window. She stole my money, so I beat her ass.'"

Appellant's mother gave her consent for the officers to search the house, but the officers obtained a warrant to search appellant's bedroom. There was blood on a kitchen tablecloth, and blood just outside appellant's bedroom. Appellant's bedroom was in complete disarray. There was blood on the walls inside appellant's bedroom, on the bed, and in the bathroom. A bloody comforter and white jacket were thrown in the bedroom closet. The officers found four knives inside appellant's room. One knife was in a sheath, and there was blood on the sheath. A black nightstick was also found in appellant's room, at the foot of the bed.

The officers recovered a binder in appellant's bedroom, which contained photographs of naked females engaged in sexual acts with men. The officers were unable to identify any photographs of E.H. in the binder. Appellant's mother told the officers that all the missing items had been accounted for.

Sheila testified she needed seven or eight stitches for her head wounds, she lost two teeth and had two black eyes, and scars across her face, arms, legs, and entire body. The scars across her face made her look "like a monster."^[8] At trial, Sheila testified she continued to suffer pain in her chest, head, nose, mouth, and ear, and had hearing problems. She also had nightmares about the assault. After the assault, Sheila lived with her brother, Tommy, for several months. Sheila testified she continued to be frightened of appellant because he drove by her house and made threats to her.

On January 7, 2004, at 5:30 p.m., appellant posted bail and was released from jail. Also on January 7, 2004, Sheila's brother, Tommy, received a telephone call from a man asking for Sheila. Sheila was not home at the time. Tommy asked for the man's name, and he identified himself as appellant. Tommy asked what he wanted and where he was. The man said it was none of his business, but he was "coming over to kill everybody in the house." Tommy hung up and told his mother about the call, and she immediately contacted the police and reported the man's threats to Tommy.^[9]

An officer responded to appellant's house and asked if he knew Sheila or Tommy. Appellant was surprised and agitated, and said he did not know them. Appellant had a soft cast on his left ankle or lower foot. The officer arrested him for making terrorist threats, but did not advise him about the nature of the threats, or that a threatening telephone call had been made. Nevertheless, appellant spontaneously said he did not call and threaten anyone.

As the officer drove appellant to the jail, appellant pleaded not to be booked in the jail, and that he had just been released on bail after being arrested for beating a woman on January 4, 2004. Appellant spontaneously said "he was sorry for beating the woman up, but she was trying to take his money."

An officer subsequently conducted a formal interview with appellant at the jail, and advised him of the warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436. Appellant said he would answer questions, and insisted he did not make any threats to "Shirley" and Tommy. Appellant said "he was sorry for beating her up, but she was trying to take his money." He never said that Sheila pulled a knife on him.

Around midnight on January 7, 2004, appellant called his mother from county jail and asked her to post bail for the terrorist threat charge. Appellant said to his mother, "'I didn't do it, mom. I didn't do it. I already beat this girl up. I regret it.'"

Plea Proceedings

On February 4, 2004, the information was filed against appellant, charging him with counts I and II, aggravated assault, count III, battery resulting in the infliction of serious bodily injury, count IV, forcible sexual penetration, and count V, attempted forcible sexual intercourse. It was further alleged he personally inflicted great bodily injury and used a deadly weapon in the commission of the offenses.

On February 13, 2004, appellant was in custody as he pleaded not guilty and denied the enhancements.

On February 26, 2004, appellant was still in custody. He withdrew his previous not guilty pleas, and pleaded no contest to count III and admitted the personal arming allegation. The court granted the prosecution's motion to dismiss the remaining counts and allegations, along with the charges in an unrelated case.

During the plea proceedings, appellant explained that he only assaulted the victim in self-defense because she tried to rob him. Judge Atkinson stated appellant should not enter a plea if he thought he did not commit a crime. Defense counsel explained that appellant was entering the plea in exchange for dismissal of the remaining counts and an unrelated case. The court again stated appellant should not enter a plea if he did not commit a crime. Defense counsel further explained that appellant suffered from bipolar disorder, and "perhaps the Court is seeing some of that in his description of what's going on." The court was not comfortable to take the plea, and called for a recess to discuss the matter with the parties in chambers.

Thereafter, the court resumed the plea proceeding, explained appellant's constitutional rights, and appellant stated that he wanted to enter the plea. The court continued with the hearing and accepted appellant's plea and admission.

On April 2, 2004, Judge Schultz convened the sentencing hearing. Appellant was present but not in custody. Defense counsel advised the court that he was not prepared to go forward with the sentencing hearing. Counsel stated appellant had been examined by Dr. John Riddle, who submitted a report that appellant was a schizophrenic who suffered from auditory hallucinations, and he was functioning at the level of a six-year-old child. Counsel stated he was not aware of appellant's mental condition when he entered the plea. Counsel had just discussed the case with appellant, and appellant had no recollection of the plea proceedings. Appellant said he had just been placed on a new medication and did not feel right.

The prosecutor replied there was no evidence that appellant's current state affected his mental condition to withdraw his plea. Defense counsel clarified that while he planned to file a motion to withdraw the plea, he was not prepared to do so that day, and he just wanted a continuance to determine whether appellant's status required section 1368 proceedings.

Judge Schultz found there was a doubt as to appellant's mental competence, suspended the criminal proceedings, and instituted mental competence proceedings. Defense counsel did not oppose the court's findings. Appellant and counsel clarified appellant had not previously taken medication, he just started taking medication, and he was going to see Dr. Riddle to adjust his medication.

Appellant was taken into custody at the conclusion of the hearing, based on his previous guilty plea. On the same day, he posted bail and was released.

Competency Trial

On September 20 and 21, 2004, Judge Schultz presided over the jury trial on whether appellant was competent to reinstate the criminal proceedings. The prosecutor did not take a position as to appellant's competency, but asked the jury to consider all the evidence in making the decision. In contrast, defense counsel argued the evidence showed that appellant was competent to stand trial.

The prosecutor called two court-appointed experts to testify about their examinations of appellant. Dr. Miles Estner, a forensic psychiatrist, evaluated appellant during a 45-minute examination on May 23, 2004. Dr. Estner had not reviewed any medical records or contacted appellant's treating physician, but instead read the criminal investigative reports about the charged offenses and thought he had enough information from the examination to render an opinion.

Dr. Estner testified to his opinion that appellant was not competent to stand trial, based on his evaluation during the interview. Appellant appeared on time and at the right location for the interview and knew he was supposed to have an evaluation. Dr. Estner described appellant's clothing as "very loud." He was wearing "all satin above the waist, light blue satin, short sleeve shirt and a satin tie of the same color. Also had rings on all of his digits, all eight fingers." Dr. Estner explained the reason for the interview, and "right away [appellant] expressed opinions both in one direction of the evaluation and then the other," and alternatively stated he was both competent and incompetent. Dr. Estner asked for his age and birthdate. Appellant knew his identity and correctly gave his birthday, but went "back and forth" as to whether he was 42 or 44 years old. Appellant was "very high energy," anxious, and gave "very impulsive answers," as if he was talking before he thought.

Dr. Estner asked appellant about his mental health history, and appellant responded appropriately about his treatment and medications. Appellant said he was diagnosed with bipolar disorder, "which we call manic depression, but that it might be schizophrenia and that he'd been on Social Security Disability for 15 years" for his mental illness. Appellant said he was hearing voices during the examination, and it was "kind of a background static and that he lives with it." The voices were not telling him anything. Appellant said he was taking Navane, an anti-psychotic oral medication used to block voices and minimize paranoia. Appellant had previously taken Zyprexa, a powerful anti-psychotic drug.

Dr. Estner explained that bipolar disorder is the same as manic depression, that someone is well "almost all of the time, but then there are periods when they become manic, meaning grandiose, inflated image of themselves and unrealistic expectations to an extreme degree like thinking that they be in line for the throne or that the World Bank belongs to them." After a manic episode, the person is worn out, lacks energy, and left very depressed. A person who hears auditory hallucinations is manic with psychotic features. Such a person is well most of the time, and such episodes may last for weeks or months, followed by long intervals of being well.

Dr. Estner testified Navane is frequently used to reduce and eliminate the symptoms of bipolar disorder, schizophrenia, and auditory hallucinations. A patient taking Navane should show improvement within a couple of weeks, and it would be clear within four to six weeks if the medication was working. Dr. Estner had the impression appellant had been taking Navane for "some time" but he did not know exactly how long he had been on that medication, and did not attempt to contact appellant's physician to obtain that information.

Dr. Estner testified that after discussing appellant's mental health history, he was confident that appellant had a mental illness. Dr. Estner asked appellant questions as to his ability to participate in the criminal proceedings. Dr. Estner discussed with appellant the various aspects of a criminal proceeding, including the role of the judge, jury, prosecutor, and defense attorney. Appellant correctly described the difference between the pleas of guilty and not guilty, pleading guilty or going to trial, the meaning of a jury trial, and the difference between potential penalties. Appellant understood some concepts about having a fair trial in general, but he was "particularly paranoid" about the judge and jury, and "really felt" people were against him and he could not be treated fairly. Appellant explained he pleaded guilty to get out on bail and be with his 80-year-old mother. Dr. Estner testified that such a decision also showed appellant was prone to impulsive decisions that might not be in his best interests. Dr. Estner conceded he did not know the circumstances of the plea, such as whether there were other charges pending or his mother's ill health.

Dr. Estner concluded appellant did not rationally understand the court proceedings. "He's competent on certain things. He's not competent on other things. He ... wanted to withdraw his plea and whether's he's competent about that. It sounded pretty confusing to me."

Dr. Estner also conducted a mental status examination and asked a routine set of questions to determine if the person was functioning well, such as the day and date, the last few presidents, and a simple memory test. Dr. Estner concluded appellant had some "real defects" in his thinking process which were not superficially obvious, "but when you put him through the questions he made mistakes that one shouldn't make." Appellant thought they were in Caruthers and then agreed they were in Hanford. He said the last three presidents were "Bush, Clinton, and Reagan," but the answer should have been "Bush, Clinton and Bush."

Dr. Estner testified appellant was not competent to stand trial, that he still suffered symptoms of his mental illness which interfered with his understanding of the process, and also because of his general impulsive nature of making important decisions one way and then another way, even at the same time. Appellant had a "skeletal" understanding of the legal proceedings, but he could not assist his attorney in a rational manner because he had "enough ambivalence and impulsivity with his decisions that it would be hard to sort out."

On cross-examination, Dr. Estner conceded appellant suffered from a treatable condition from which he could, at some point, be competent to stand trial, if he took his prescription medication and went through another examination about his understanding of the specific legal issues. Dr. Estner conceded it could be important to contact appellant's treating physician to determine his current status and medication since the May 2004 evaluation, and that Navane could "[t]echnically" eliminate his symptoms and incompetency. Dr. Estner also conceded appellant had "enough" of a factual understanding of the legal proceedings, but it was not rational and his mental illness was the "interfering factor." Dr. Estner further conceded he did not know anything about appellant's actual interaction with his defense attorney, but such facts would not change his opinion that appellant could not rationally assist his defense counsel.

"You know, if he's competent one day and he's not competent another, I'm not that impressed, in other words, with his course from May until now because at the time I saw him he was not competent; at least in my opinion."

Dr. Estner insisted appellant's diagnosis had not changed, and he had seen "some behavior here today that would indicate there's still some problems," such as appellant's cell phone ringing in the courtroom after everyone was admonished to turn off their phones. Such conduct reminded Dr. Estner of appellant's "fancy dress and all these rings, a prominent cell phone, I don't know, still indicates there's still some lack of control." On further cross-examination, Dr. Estner conceded that cell phones frequently ring in court, but the cell phone played "kind of a jingle" and the incident reminded him of appellant's clothing during the interview. "It all fits together is what I mean. Taking one piece of information might or might not--sure, people's phones go off, but that it plays kind of a festive tune and I know that's been an issue with [appellant] in the proceedings, I think it's a piece of information I give weight to."

"Q. A person having a festive tune on their cell phone is an indication that they might not be stable?

"A. And having it go off in court and having a long history of mental illness, being examined by me wanting me to opine that he's competent but dress outlandishly and using profanity, yes.

"Q. A number of people dress outlandishly; right?

"A. Yes.

"Q. Liberace dressed outlandishly?

"A. Yes.

"Q. And he wasn't incompetent, was he?

"[THE PROSECUTOR]: Objection, calls for speculation; relevance."

Dr. Estner replied that how people dress "certainly sends a message."

Dr. Estner concluded appellant had a competent understanding of the legal issues sufficient for a finding of competency, but he had trouble rationally understanding the proceedings. "[T]echnically he understands the Court, you know, he has the ingredients and I think he knows well what [defense counsel's] job is and how to interact with you but I think there's delusional influences that are interfering with his judgment." Appellant's symptoms interfered with that judgment, and he needed more treatment.

Dr. Luis Velosa, another psychiatrist, was also appointed by the court to evaluate appellant. Dr. Velosa reviewed police reports and a mental health detention report from November 2003, and he conducted one examination of appellant on April 22, 2004, at his Visalia office. Appellant was "very distressed" throughout the examination. "His emotional responses were inappropriate. Oftentimes he would cry. Oftentimes he would be angry and upset. Characteristically he shows some signs of acute psychotic symptoms."

Dr. Velosa began the examination by explaining the nature of the court-ordered report. Appellant was quite distressed and agitated, and did not seem to understand the admonition. Dr. Velosa asked appellant questions about several areas of his life, and the circumstances of the instant offense. During the exchange, Dr. Velosa observed "serious signs and symptoms" which indicated appellant was not in touch with reality. Appellant was not cooperative because of his mental illness. Appellant often interrupted Dr. Velosa as he asked a question, did not respond to the question asked, broke into tears, jumped from subject to subject, or get totally upset and angry. He also displayed issues about paranoia and not trusting. Dr. Velosa had to ask the same question several times to obtain an answer.

Appellant stated that he had received psychiatric treatment since he was nine years old, and he had been on disability for his mental illness. Appellant had been involuntarily committed to locked psychiatric facilities three times. Appellant said he still had auditory hallucinations. Appellant said he was taking four milligrams of Navane, which Dr. Velosa described as a medication used in "the good 'ol days.... It's an old medication for, that we use for psychotic symptoms," that is not often used anymore. Appellant also said that he was taking the medication and it was not working. Dr. Velosa testified many times a person with schizophrenia will have some psychotic symptoms, even though he was on the right medication and the right dosage, and the newer medications are more effective.

Dr. Velosa testified appellant was able to understand the nature and purpose of the criminal proceedings, and had a basic understanding of how the court system worked, even though he was suffering from psychotic delusions. The only disputed issue was whether appellant could rationally assist his attorney. Dr. Velosa believed that appellant's psychiatric symptoms prevented him from rationally cooperating with his defense attorney. Appellant was experiencing paranoid ideas, he thought the FBI was after him, he thought an SUV was following him all the time and he was in danger, and he believed everything was a plot against him. Appellant's mind "wasn't there to be able to cooperate with his counsel rationally." Although appellant knew what he was doing and what happened, and he was able to understand the court system, his paranoid ideas prevented him from assisting in his defense. "I assume that if the defendant is not talking to me rationally and having all kinds of psychiatric symptoms that impair his concept of reality, I assume that he would have the same problem cooperating with his counsel."

On cross-examination, Dr. Velosa conceded that he only examined appellant once and had no idea whether appellant was competent as of the date of the hearing. The prescribed medication might have worked to stabilize his condition, such that he was oriented and not suffering from paranoid ideas, but "this type of illness is so dreadful and unexpected that perhaps the medicine will work and a person will be free from the kinds of symptoms that I was able to witness."

"If … you notice that he doesn't go through what I would call mood swings that when you [are] relating with him in certain fashion he doesn't cry for no reason or he doesn't get totally angry out of something that you don't understand, if you feel that he's with you at all times, yes, indeed, he's able to cooperate with counsel."

Appellant would be competent if he responded rationally and made sense when talking with his defense counsel, and he did not say he was being followed by the FBI.

"Q. Okay, and if his medical doctor, his current treating physician had questioned him on those issues and indicated that he believed that [appellant] was oriented this way, where when you asked him about--about presidents he talked about the presidents, not about Jesus Christ or something like that. And when you asked him about what happened he was able to tell you what he believed happened. Everyone has a different perception--his perception may be different than the police report, but he's able to that event?

"A. Correct.

"Q. And that doctor says he appears oriented, he appears rationale [sic], 'I believe him to be competent enough to act with his counsel,' would that, in your opinion, meet that second tier of competency?

"A. It appears that, yeah, he's fulfilling that particular tier, yeah."

The defense called one witness, Dr. John Riddle, appellant's treating physician. Dr. Riddle was not a psychiatrist, but received extensive psychiatric and mental health training in his internship and residency.^[10] He was the mental health officer in Murray County, Oklahoma, for three years in the 1980's. At the time of the hearing, he had been a family practitioner in Hanford for 23 years. He also worked at the Lindsay and Firebaugh clinics, and treated all the patients with manic depression, bipolar disorder, and schizophrenia because he was the only clinic physician with psychiatric training. He had evaluated and treated "[p]robably way over thousands" of patients for mental health disorders since 1984.

Dr. Riddle testified that appellant first appeared at his clinic on March 29, 2004.^[11] Appellant's clothes were "very flashy, black leather outfits, I don't remember all the details, but motorcycle gang and stuff," and wore skull rings. Appellant said he had recently moved from San Francisco to Hanford with his elderly mother, he had some legal difficulties because of his mental health issues, and felt he needed treatment. As Dr. Riddle took his history, appellant was very agitated, strident, verbally hostile, and talked loud. Appellant suffered from paranoid ideation and disordered thinking. Appellant said he had suffered from auditory hallucinations and paranoid ideas as a child. Appellant's auditory hallucinations were voices telling him that he was going to get in trouble, and thought people were watching his house. Appellant also complained of an ankle problem.^[12]

Dr. Riddle's initial diagnosis was that appellant suffered from either paranoid schizophrenia or bipolar disorder. He did not obtain appellant's prior medical records. As a result of appellant's subsequent visits and examinations, Dr. Riddle concluded appellant had "plain old schizophrenia." Schizophrenia is a chronic disease of thought disorder, which could manifest itself in compulsive behaviors and auditory hallucinations. Early treatment was important. The paranoid aspect of the illness was characterized by the patient feeling like the FBI or CIA was out to get him.

Dr. Riddle testified the first course of treatment was to eliminate the auditory hallucinations through medication, and then stabilize the patient so he could live an average life and get through the day. With the right medication, a patient could act as an ordinary person, "maybe a little odd but nothing more than usual."

Dr. Riddle testified that he ordered various laboratory tests to rule out any medical problems and received the results the next day. On appellant's second visit, March 30, 2004, he continued the evaluation and prescribed Navane, a major tranquilizer, to improve his vision of reality.^[13] Dr. Riddle had frequently prescribed Navane to mental health patients: "I've saved people from much misery with Navane...." Dr. Riddle also set up an appointment schedule to monitor appellant's use of the medication and his progress.

Dr. Riddle testified appellant returned on April 7, 2004, but the clinic was very busy. Appellant became very frustrated because of the long wait and left without being seen. Appellant returned on April 16, 2004, and Dr. Riddle noted he looked "'100 percent better,'" his mood and affect were more stable, his dress and grooming were more appropriate. His hallucinations were not completely gone but were improved. Appellant's clothing was toned down "to more like a Central Valley person."

Dr. Riddle also conducted psychotherapy sessions, talked with appellant about his thoughts and behavior, and adjusted the medication as necessary. Dr. Riddle did not focus on appellant's ability to understand the nature and purpose of the criminal proceedings, because that was not the focus of the treatment and "we were just trying to get this individual better, he was ill." Appellant cooperated with Dr. Riddle but "he was a handful."

As of the time of the hearing, Dr. Riddle had seen appellant eight times about his mental health issues, every one to two weeks. Appellant was also seen by the clinic's physician's assistants for other medical problems. Dr. Riddle testified the Navane started to work in late April. Appellant still had auditory hallucinations but his condition improved. On July 23, 2004, appellant reported that his auditory hallucinations had decreased. Dr. Riddle slightly reduced his medication because he was not agitated and he was making progress. Thereafter, appellant did not report any further hallucinations. Appellant cooperated with the treatment plan, properly took his medication, and appeared as if he was attempting to overcome his mental health issues. He never appeared to be lying or malingering in order to obtain medication. Dr. Riddle believed appellant took the medication as ordered, because he would have shown a rapid deterioration within one week.

Dr. Riddle had last seen appellant on September 17, 2004, and they discussed the upcoming competency hearing. Dr. Riddle gave appellant a "mini mental status exam," and asked who was the president and vice-president, who was running in the election, and other general knowledge questions, and he did very well. Appellant answered questions about his case appropriately, and was worried "like any individual" that he was looking at hard prison time. Dr. Riddle asked appellant questions about the legal process, the court, the prosecutor, and the defense attorney. Appellant indicated he was ready and understood the process. Dr. Riddle also believed appellant would be able to rationally assist his attorney in the case.

Dr. Riddle testified that when he first saw appellant in March 2004, he would not have been able to assist his defense attorney in the presentation of his case. Dr. Riddle agreed with Dr. Estner's evaluation of appellant's condition at the May 2004 evaluation. However, Dr. Riddle believed appellant was competent and now rationally able to assist his defense attorney, based on his medication and treatment.

"Q. And is it your opinion that if [appellant] continues to take Navane that he would continue to remain competent?

"A. Yes."

On cross-examination, Dr. Riddle conceded that appellant said on August 13, 2004, that he was using medical marijuana. Dr. Riddle did not conduct a drug screen to confirm appellant's statement, but told appellant there was no benefit to using marijuana. Dr. Riddle further testified he had no opinion on medical marijuana and "could care less about it." In addition, he was still complying with Dr. Riddle's treatment plan and taking Navane. Appellant was still his patient, and Dr. Riddle intended to continue his treatment.

Dr. Riddle confirmed he wrote a letter to appellant's defense counsel on March 31, 2004, in anticipation of the sentencing hearing of April 2, 2004, and recommended against incarceration based on his initial assessment of appellant's mental health condition as paranoid schizophrenia.^[14] At that time, he had only seen appellant on two occasions but appellant asked him to put something in writing about his condition. He wrote that appellant was functioning on the level of a six-year-old child at the time of the charged offenses, "'in that a struggle with a female made sense to him rather than commonly phoning the police to have her removed from his house.'" Dr. Riddle explained patients who suffer from paranoid schizophrenia react poorly to stress. "A 6-year-old, it's just a general statement ... you have to spend hours and go into a lot of more in depth, but this is a journal letter to give a flavor for what is happening to that patient, or what had happened and how he's functioning at the time."

"… This patient has paranoid schizophrenia. I know those patients act irrational. They do foolish things, irrational things that an average person would never do. [¶] But when they're stressed out and in a severe situation, of course they're going to do, they're going to do things like hit people."

At the conclusion of the hearing evidence, the jury was instructed and deliberated, and found appellant was competent to stand trial. Thereafter, the trial court resumed the criminal proceedings.

Pretrial Motions and Hearings

On October 18, 2004, appellant moved to withdraw his no contest plea, based on the hearing evidence that he was not competent when he entered the plea in February 2004.

On November 2, 2004, the court granted the motion to withdraw and set the matter for trial. Appellant was not in custody.

On January 5 and 21, 2005, the court held pretrial hearings; appellant was not in custody.

On February 28, 2005, the court conducted another pretrial hearing; appellant was back in custody, and facing charges in an unrelated case.

The Trial

On March 16, 2005, appellant's jury trial began, and he remained in custody for the balance of the criminal proceedings. Judge Schultz, who presided over the competency trial, also presided over the jury trial on the substantive charges. The prosecution witnesses testified as set forth ante, about the nature and circumstances of appellant's assault and battery on Sheila.

Appellant did not testify, but defense counsel's closing argument presented the theory that C.H., E.H., and Sheila planned the crimes of solicitation, prostitution, and procuring crack cocaine; C.H. was an accomplice because she stayed with Sheila's disabled child while Sheila went to appellant's house to commit the crimes; appellant just tried to defend himself against a robber in his house, and he did not have to wait until something more serious happened to protect his home, his mother, and himself. Counsel conceded Sheila's face was "pretty marred up," but asserted that "it doesn't take a whole lot of force against a face to make tremendous amounts of blood or cuts that over a period of time swell and bruise and look a lot worse." Counsel also pointed to inconsistencies in Sheila's testimony and argued she was not credible.

In support of the defense theory, appellant's mother, Mrs. Jones, testified for the defense that she was asleep that night when she heard appellant yell for help and that someone had stolen his money and rings. Mrs. Jones testified she was shocked by the incident, and was confused about the sequence and circumstances of events that night.

Evidentiary Hearing

After Mrs. Jones testified for the defense, the prosecutor requested to recall Mrs. Jones on rebuttal to ask whether she was afraid of appellant, based on the theory that she testified in support of appellant because she was afraid of him.

Defense counsel objected to recalling Mrs. Jones for such questions. Counsel acknowledged Mrs. Jones obtained a restraining order against appellant in 2001, and she told an investigator in this case that she did not like her son and did not want to be around him. Counsel asserted Mrs. Jones had given consistent statements about the incident throughout the investigation, and she should not be subject to impeachment on her purported fear of him. Counsel also complained the prosecution failed to timely provide discovery on the restraining order, and counsel was not prepared to cross-examine the witness on that issue.

The prosecutor explained an investigator interviewed Mrs. Jones on March 9, 2004, and learned that she previously obtained a restraining order against appellant. On March 14, 2004, the district attorney's office obtained certified copies of the restraining order, the prosecutor received the documents on March 14 or 15, and the trial started on March 16.

The court conducted an evidentiary hearing, outside the jury's presence, for an offer of proof of Mrs. Jones' testimony. Mrs. Jones testified she was afraid of appellant because "he comes after me," he "comes up to my face and he yells at me and saliva come on me. And then when he is mad at me, he spits on me and calls me names." Mrs. Jones testified appellant had "almost smothered me" during an incident when she intervened as he beat up "Veronica," and he put his hand next to her face so she couldn't breath. Another incident occurred a year earlier, when Mrs. Jones was caring for her elderly husband and appellant was trying to help. Her husband became violent and appellant pushed down Mrs. Jones.

As Mrs. Jones concluded her testimony at the evidentiary hearing, she became very upset and had trouble catching her breath:

"[MRS. JONES]: This is too much for an old lady. I tell you I'm scared of him, I'm scared of him ....

"THE COURT: For right now let's just keep Mrs. Jones in the courtroom for a minute.

"[MRS. JONES]: I need my breather. I'm scared of him, I'm scared of him. [¶] I have to breathe in. It didn't come out. I am supposed to do it twice, but I don't want to.

"THE COURT: Leave her here for a minute for her to catch her breath.

"[MRS. JONES]: I'm scared, I'm scared. Where am I going?

"MEMBER OF AUDIENCE: You are going to sit by me. Remember, I am Nicki?

"[MRS. JONES]: Yeah."

The court found the offer of proof was not rebuttal evidence but instead consisted of a prosecution request to reopen cross-examination of Mrs. Jones to impeach her defense testimony.

"In view of Mrs. Jones' testimony that she is indeed afraid of her son, it doesn't appear to be reasonably necessary to go into the existence or nonexistence of a restraining order. The probative value of that would appear to be outweighed by a potential for confusion of issues and undue consumption of time, with regard to the restraining order itself.

"It does appear that evidence that the witness is afraid of her son is highly probative on the issue of her credibility. The Court will permit the district attorney to reopen to elicit that testimony."

The court excluded any references to appellant's prior acts of abuse against other women.

"It appears to me that the purpose of the reopening of the cross-examination of Mrs. Jones is simply to bring out the fact that she is afraid of her son. We need to avoid going into the issue of prior acts of abuse on other women that Mrs. Jones may have been aware of."

The prosecutor requested to ask Mrs. Jones about appellant's prior acts of abuse against her. The court replied:

"I think that it's legitimate for you to elicit that she is afraid of physical violence. I don't see any need to go into great detail about that. The issue is not whether – the issue is simply her state of mind and whether she is afraid of [appellant]."

The court clarified the prosecutor could ask Mrs. Jones if she was afraid of her son and, if so, whether he previously used physical violence against her. Defense counsel objected to any questions as to particular incidents because he was not prepared to address the issue, since he just received discovery about the restraining order.

The prosecutor replied the "smothering" incident between appellant and his mother occurred after the charged offense. The defense received discovery on February 13, 2004, as to another incident, where appellant knocked down his mother while caring for her elderly husband. Appellant pushed his mother "so hard that she fell backwards onto the ground and hit her head ...."

Defense Counsel's Request for a Section 1368 Hearing

In the course of the evidentiary hearing, as the prosecutor discussed appellant's prior acts of violence against his mother, appellant interrupted and started to talk to the court. The court instructed appellant to communicate with his attorney. Appellant and his attorney briefly conferred off the record, and then the following exchange occurred:

"THE COURT: Having communicated with your lawyer, if you still want to tell me something, go ahead.

"[APPELLANT]: Yes, your Honor, I feel that my mother has been persuaded by the DA, and I feel they have a new witness, and I have no chance in this matter, and I give up. We've paid $12,000 over that for counsel, and he's done very well, and suddenly my life is over due to them walking my mother in here.

"THE COURT: Okay.

"[APPELLANT]: My mother i