P. v. Cruz

Filed 4/13/07 P. v. Cruz CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SIXTH APPELLATE DISTRICT

Defendant was charged by information with burglary (Pen. Code,[1] 459-460, subd. (a) [count 1]), forcible lewd acts on a child during the commission of a burglary [count 2] and kidnapping ( 288, subd. (b)(1), 667.61, subds. (a)-(e) [counts 9 and 10] ), kidnapping a child under the age of 14 ( 207, subd. (a)/208, subd. (b) [count 3]), two counts of felonious assault, one of them with use of a deadly weapon ( 245, subd. (a)(1), 12022, subd. (b)(1) [counts 4 and 5]), child abuse with the use of a deadly weapon ( 273a, subd. (a), 12022, subd. (b)(1) [count 6]) and forcible sexual penetration during the commission of a kidnapping, one of them with personal use of a deadly weapon ( 289, subd. (a)(1), 667.61, subds. (a), (b), (d), (e), 12022.3, subd. (a) [counts 7 and 8]).

After a doubt was declared as to defendants competency to stand trial, a jury found defendant competent. Defendant subsequently pleaded not guilty and not guilty by reason of insanity. A jury found defendant guilty as charged and sane. The trial court sentenced defendant to 90 years to life, consecutive to a determinate term of 12 years, four months.

On appeal defendant argues that the court: (1) misinstructed the jury in its definition of competency, and then failed to correct the error in response to a jury question; (2) erroneously ruled that defendants implied Miranda waiver and statements were voluntary and intelligent; (3) misinstructed the jury on his idiocy defense; (4) misinstructed the jury on his duress defense; (5) erred by failing to admonish the jury to disregard the prosecutors comments during his rebuttal argument; (6) misinstructed the jury on his insanity defense; (7) improperly sentenced defendant to consecutive terms under the One Strike law; (8) improperly used kidnapping as an aggravating circumstance to impose separate sentences for three sex offenses; and (9) and improperly imposed a sentence of 25 years to life instead of 15 years to life under the One Strike law. He also argues that the errors committed at the guilt trial cumulatively require reversal. We affirm.

STATEMENT OF THE FACTS

Competency Trial

Defense Case

The defense presented evidence from defendants mother, brother, and the defense investigator who interviewed them in Mexico that, as a child, defendant was repeatedly and seriously beaten by his father, usually on the head, at least once to the point of unconsciousness. As a child he often complained that he heard voices, saw visions and dreamed he was being pursued by a dark being and that when he was asleep he could feel a person passing by him. He would sometimes wake up screaming and try to hide. His mother would tell him to pray. When he was a teenager he sometimes would have fits during which he acted possessed, like something entered his body.

In addition, evidence was presented that as a child defendant was a slow learner, had difficulty following and understanding directions, repeated first grade twice, and did not pass the third grade. He worked in the fields, at a sugar cane refinery and cement plant, but he consistently ran into trouble because he was very slow and could not follow directions. He married at age 16 or 17 and had two children. His father-in-law once beat him severely. He left Mexico three years before the trial, at the age of 21, to seek a better life in the United States. In the United States, he bought a car and some months sent his mother 1,500 to 2,000 pesetas. He worked in Zanottos deli in San Jose for about a year, where his supervisor rated him a marginal to average employee and not unusual among her employees.

After his arrest, defendant was at first housed on the mental health floor at the county jail. A few days into his stay there, a correctional officer reported to his superior that defendant did not communicate with the staff much, and would only stare into space when attempts were made to talk to him. However, he followed verbal commands and did not exhibit crazy behavior.

A senior felony trial lawyer with the Santa Clara County Public Defender testified that it is important that the defendant be able to talk to his or her attorney about the facts of the actual incident, especially about facts that might not appear in the police reports. He or she must be able to let go of misconceptions he may have about the criminal justice system and be able to trust in the attorney. Defendants need to understand the attorneys explanation of the sentences they are facing. To do this, they must have a certain baseline intelligence and their neuroses and psychoses must not interfere with their ability to understand. In certain cases, the defendant has to understand what it means to enter a plea of not guilty by reason of insanity, and must understand that such a plea can end up being a life sentence. Ultimately, it is the clients decision whether to enter into a plea bargain, whether to testify at trial, and whether to enter a plea of not guilty by reason of insanity.

The defense investigator assigned to defendants case testified that he prepared a video of defendant to show defendants family in Mexico. The video had defendant explain to his family who the investigator was and why he was coming to interview them. In the video, defendant made a 16-minute statement directed at his family, and a 10-minute statement directed at his wife. He spoke without notes or prompting. He followed the instructions correctly 99 percent of the time.

Dr. Jose Arturo Silva, a forensic psychiatrist, visited defendant 10 times, for one to three hours each time. He reviewed psychiatric and medical records, 800 pages of police reports and defendants grade school records. He also spoke with defendants mother and two brothers and reviewed the investigators interviews with other family members. Dr. Silva evaluated defendant to determine whether he would be able to be rational in cooperating with the defense to put a viable legal defense on his behalf. Dr. Silva diagnosed defendant with a psychotic disorder not otherwise specified on the basis of his history of beatings, head injuries, hallucinations, current delusional thinking, auditory hallucinations, and negative symptoms. He determined that defendant was not malingering.

Dr. Silva did not have enough data to diagnose defendant as mildly mentally retarded. However, because defendant demonstrated many of the deficits in adaptability listed in the DSM-IV definition of mild mental retardation, Dr. Silva diagnosed defendant with a cognitive disorder not otherwise specified. Dr. Silva also opined that defendant suffered from Post-Traumatic Stress Disorder as a result of the multiple incidents of abuse he suffered as a child and adolescent. He also diagnosed defendant with a chronic panic disorder.

Dr. Silva administered the MacArthur Competency Test to assess defendants competency to stand trial. It consists of 22 questions and is considered to be the best instrument for purposes of finding some systematic knowledge regarding the issue of competency to stand trial. However, even a high score on the test can be overridden by a defendants delusions. Here, defendants delusions include the belief that his former girlfriend Sylvia should be in jail for these crimes because one of the hallucinated voices he hears is Sylvia commanding him to engage in sexual activity with neighbors, including children. At his most lucid, defendant believes that Sylvias voice, in conjunction with two other hallucinated voices, conspired to confuse him into engaging in the conduct which is part of the current offense, and that maybe he should be in prison, but Sylvia should be also. Finally and most crucially, defendant believes that his actions were morally, ethically and legally correct, and that his attorney should accept his version of events and defend him on that basis. However, even though he believes that his attorney should argue to the jury that Sylvia was responsible for these crimes, he also states that maybe [his attorney] will not listen to him and [is] going to do what [he] want[s], even though it would be wrong.

Dr. Silva concluded that defendant was able to understand the nature of the proceedings and the roles of the judge, prosecutor, defense attorney and the function of the jury, but was nevertheless unable to assist his attorney in a rational manner because of his delusions.

Prosecution Case

The prosecution presented evidence that defendants employer, who also worked with him at the deli counter, never observed any unusual behavior on defendants part and considered him a marginal to average employee; that in applying for the job, defendant had submitted false identification, resident alien and social security cards in the name of David Sanchez Lopez; that he had satisfactorily handled several court appearances for multiple traffic infractions and one misdemeanor citation for driving without a license; and that the correctional officer at the main county jail had never seen defendant act bizarre, had observed him watch television, read the newspaper and draw cartoons, and had no trouble communicating with him in English or getting him to follow directions.

Dr. Robert Perez, a clinical psychologist, testified that he talked to defendant for about seven hours. Although defendant did have a psychiatric disorder and was not malingering, he was nevertheless able to rationally assist his attorney.

Dr. Perez administered the MacArthur Competency Assessment Test. Dr. Perez explained how he scored the questions on the test and admitted that on several questions, after reflecting on the meaning of defendants answers, had added points to defendants score. He acknowledged that on two questions, defendants answers were delusional and he gave defendant no points for them. In his opinion, even though defendant had some sort of psychotic disorder, was emotionally impaired and was way down there cognitively even if not mentally retarded, defendant could still understand his role vis-a-vis the case. Dr. Perez concluded that defendant was capable of rationally assisting his attorney to present a mental defense to the charges because he did not deny he was mentally ill, could communicate his delusions to his attorney, and could talk with his attorney about his mental process at the time of the commission of the crimes.

Detective Juan Gonzalez of the San Jose Police Departments Sexual Assault Unit spent six hours with defendant while he was being treated at the Valley Medical Center for a dog bite he suffered when he was arrested. After defendant was released, he was taken to the police department to be formally interviewed over the next three days. During the 12-plus hours Detective Gonzalez spent with defendant, defendant appeared normal and did not act bizarre. Defendant was able to talk about his emotions and thoughts, but he never suggested he was hallucinating and never claimed to be hearing voices.

Guilt Trial

The Offenses

On June 6, 2003, nine-year-old J. came home from school. She entered through a partially-opened sliding glass door and called to her mother, Rosa; no one answered. In J.s bedroom, a window was broken, her jewelry box was tipped over, and her wish box was missing.

Defendant appeared at the sliding door and asked J. if Roberto was there. Before J. could lock the door, defendant pushed it open, slung J. over his shoulder and carried her to her brother Pablos computer room. While she fought him, defendant removed her pants and underpants and raped her on her brothers bed. When he was finished and J. had pulled her clothes back on, defendant handcuffed her, carried her to the garage, tied her legs with curtain string, placed her in a box and put the box in a car that was parked inside the garage.

In the meantime, Rosa and 15-year-old Pablo had returned home and tried to activate the garage door, but it would only open two or three feet. Pablo crawled under the door to get into the garage and saw an unknown car parked facing the driveway with his sister in the back seat screaming at him to watch out. Defendant punched him in the face, kicked him in the stomach and tried to break his neck with his hands. With Pablo begging for his life, defendant picked Pablo up and took him into the house. Defendant told Pablo he wanted Pablos mother, and money. Pablo asked him if Jose, his stepfather, had sent him, but defendant refused to give names.

Rosa entered through the front door and confronted defendant in the kitchen. She asked him where her daughter was and how he had gotten into the house. Defendant said he was there because of her and that he had keys. With J. screaming from the garage, defendant hit Rosa repeatedly in the face, tore the phone from the wall when Rosa tried to reach it, knocked her to the ground as she tried to get to the garage, and continued fighting with Pablo, who tried to hit defendant with a dining room chair, a small ladder, and a frying pan. Defendant grabbed the frying pan from him and used it to beat Rosa in the head. Rosa stopped moving. Thinking his mother was dead, Pablo ran to a neighbors house to get help. Defendant then drove out of the garage with J. in the car.

In the car, to get J. to stop yelling, defendant repeatedly poked J. with a screwdriver in the forehead, lip, and chest, drawing blood. Defendant drove to a house and parked the car in the garage. He took her out of the car, ripped up the box and threw it in a corner, carried her into an upstairs bedroom and duct-taped her mouth, and turned on the television. A news report showed J.s mothers car. Defendant eventually let J. remove the duct tape and he untied her legs. He allowed her to shower, but handcuffed her first to the shower stall, then to the towel holder. After she re-dressed, he put her on the bed with her hands handcuffed behind her back.

J. slept until sunset. After she awoke, he brought her water and let her shower again. He removed the handcuffs. Defendant raped her again. When he stopped, J. fell asleep. When she next awoke, defendant was watching the news and her cousin was on the television. J. asked for a glass of water; when defendant went to get it, J. opened the window and yelled for help. When defendant returned, he pushed her down on the bed. Later, he raped her again, this time at knifepoint, because she was screaming and yelling. He told her that if she cooperated, this will be the last time.

J. told defendant she was hungry and defendant gave her his cell phone to call out for pizza. When she ordered the pizza, she gave her real name, defendants phone number and address and tried to memorize them. She wanted to call 911 but could not, because he was right next to her.

At some point, defendant told J. he was going to kill her and tried to smother her with a pillow, but after about 10 seconds, with her kicking and screaming, he stopped. Afterwards, he apologized for taking her and said he did not know what he was doing.

The morning of the third day, J. figured out how to remove the handcuffs. She took a long shower. That afternoon defendant penetrated her anally. At some point that weekend, but not then, he also touched her vagina with his hand. Later that day, someone came home, and defendant hid her in the bathroom. Finally, when it was dark, defendant told her to go downstairs with him. They went to the garage, and he put her in the same car he had put her in before. He drove for a while, and then let her out at a liquor store. He told J. that if she said anything he would kill her, and that he was going to Mexico. Before defendant drove off, J. asked defendant for some money, hoping to get his fingerprints. She had also taken some items from his room as evidence.

When she got into the liquor store, she began to cry. The store owner asked her questions and called the police. J. was able to direct the police to the house, which during her ordeal she had realized was the home of two of her playmates.

Defendant was apprehended by police with a trained dog while hiding in the attic of his house. He was bitten by the dog when he tried to fight. In defendants room the police found a safe belonging to Jose, J.s and Pablos stepfather, and Rosas husband.

Forensic Evidence

Defendants fingerprints were found in Pablos closet and on a piece of duct tape. His hair was found on a beanie left on the stove. His semen was found on bed sheets in both houses and in J.s underpants. Although no semen was found on vaginal and anal swabs taken from J., her DNA was found on penile and scrotal swabs taken from defendant. J.s sexual assault examination revealed vaginal injuries that were consistent with severe, acute, penetrating force. There was no other explanation for the injuries J. suffered. Her injuries were also consistent with anal penetration. In addition, she had injuries to her face and lip consistent with force from a sharp object such as a screwdriver.

Defendants Statements to Police

Defendant was interviewed three times over a three-day period, in Spanish. He told police his name was Enrique Alvarez. He gave his address and said he lived with his girlfriend Sylvia and her children.

Defendant admitted he had done things that [he] should not have done. He knew where Js family lived because Sylvias twin girls played with J. Based on their house, car, clothes and frequent vacations to Mexico, he thought J.s family was rich. He needed money to return to Belize because his relationship with Sylvia had ended. Two days before the crimes, he decided to steal from the family. His plan was to scare the mother into giving him money. He went to the house and knocked on the door; nobody was home. He went back to his car, parked it on the street and waited for a bit. He went back to the house, discovered a broken window in the back, and entered the house through a broken window. He brought handcuffs with him to the house. He took the safe from the house first. He left the scene with the safe but came back because he needed someone to open it for him. He went back to his car and waited for someone to come home. When J. came home, he went to confront her. He thought J. could open the safe for him, but once he got back into the house he decided to rape her. He admitted sexually assaulting J. in her house, taking her to the garage, tying her up, putting her in a box and putting the box in his car. Pablo interrupted his escape, so defendant beat him up and put him in the house, where he came upon J.s mother. He beat her with a frying pan. He lied to Rosa and Pablo about having a key and said he was there for the mother to scare them. He hit Rosa with a frying pan and drove off. In the car, he stabbed J. with a screwdriver to stop her from screaming. His plan at this point was to hold J. for ransom.

He admitted having sexual intercourse with J. and ejaculating, twice, at his house. He said she did not resist as she had the first time, at her house. He admitted trying to smother her but stopped because he did not know how to get rid of her body. He let her go because all the media coverage was making him feel trapped. Before dropping her off in East Palo Alto, he told her to tell the police that he was on his way to Mexico in a black car, and to lie about who had abducted her. He threw the handcuffs away after he dropped J. off.

The police showed defendant parts of a video taken by a neighbors surveillance system. He said he did not know the driver of the car which pulled up next to his and stopped for five seconds before driving off. Shown in the video twice squatting down, defendant was asked if he was getting a key there. He said no; he was nervous. He denied that anyone else was involved. He did not mention hearing voices or seeing visions at any time during the 12 hours the detective was with him. Defendant displayed no obvious signs of mental illness or deficiency.

The Defense Case

Duress

Defendant testified that when he was a child his father and others beat him and that he had nightmares about the beatings and heard voices that were not there.

Defendant knew J. because he often took Sylvias daughters to play at J.s house. He knew J.s father, Jose, from working for him doing yard work. Jose gave him a uniform shirt to wear.

Jose often complained that his wife was cheating on him with another man and that his children behaved badly towards him. One day at the Albertsons parking lot, Jose asked or told defendant to go to his house and beat up his wife. This was a few days before the offenses. Defendant did not want to do it because he wasnt feeling well. Jose threatened him that if I didnt do it he would kill me with a gun. Jose pulled a metallic gun out of somewhere, maybe a couch or maybe his pocket and pointed it at him. Jose told him he would give him a thousand dollars, but he didnt say when. Jose also told him he should take the girl and the safe that was in the closet in the room. Jose didnt use the word rape, but he but he told defendant to do it with the girl. Jose also gave him handcuffs to use on the girl. Jose said he would leave a key to the house by the lawn and that defendant should put it back in the same place when he was done. When Jose pointed the gun at him he did not go to the police because the last time the police had told me that they were going to kill me, so I dont trust the police.

When defendant went to Joses house a few days later to execute the plan, he was feeling like [he] was not that person. He drove there in Sylvias car. He used the key to open the door. He went to Joses bedroom, took the safe out of the closet, and put the safe in the car. While he was parked, waiting for the mother to come home, another car drove up. The man said Jose had sent him over [t]o check out what I was doing. Then it drove off. This made him afraid, because the other man had threatened to kill [me] and this person had been sent out by him.

He wasnt actually planning to beat up the mother, because he doesnt like to beat up anyone, but he went back into the house to wait for the woman. Then the girl came home. He took the girl to a bedroom, was in the same bed with her, and took off her clothes but he didnt have sex with her, despite the fact that the father had told him to do that to her. He wasnt feeling well. I felt like I was another person, like my mind was split.

The girls brother came into the house through the garage door, and defendant thought he hit the boy. The mother was in the kitchen, and defendant hit her because she and the boy were hitting him with a pan and a ladder. While this was happening, the girl was in the car, defendant having tied her up, put her in a box and put the box in the car. Defendant put the girl in his car because the father had asked him to take her to his house; he said he would come get her on Saturday.

Defendant drove to his house and parked in the garage. He denied poking the girl with the screwdriver. He said he did not become aware of the girl until he got home; he thought she had gotten out because she was silent in the car on the way to his house. He took her upstairs to his bedroom. He did not have sex with her that night. He did not call Jose because Jose said not to call him, and defendant was supposed to meet him at Albertsons the next day.

Defendant admitted that he had sex with the girl the next day, and on one other occasion, but the second time it was because she wanted it. The girl was lying when she said he raped her four times. Asked if he knew it was wrong to force J. to have sex with him, defendant said. Yes. But I was not very well then.

Considerable evidence was presented by the defense to show that Jose had a history of domestic violence against Rosa. Pablo told police that Jose had once threatened Rosa with a gun. He was a registered gun owner. Shortly before the abduction, Jose was mad at Rosa over a money dispute involving the sale of a house. They were in the process of separating or divorcing. Jose laughed at the television the weekend J. was kidnapped.

Pablo told the police that the shirt defendant wore had an emblem on it that was similar to one he had seen on Joses tree-cutting company work shirt. He also told police he thought Jose might want to harm them.

The day after the kidnapping, a man in a 1980s red Honda Prelude drove up to the neighbor whose surveillance tape had been the subject of extensive media coverage and told him he should have minded [his] own business and that he was going to get fucked up. There was also a woman in the car, but she did not say anything.

Sylvia Gutierrez rented a room to defendant and later became his girlfriend. She lived with him for 18 months. She had five children, including twins who often played at J.s house. Defendant sometimes went with her to drop them off at J.s house, or drove them there or picked them up from there by himself. Defendant never acted in a sexually inappropriate way with her children, but by the time of the offenses, defendant had not worked for a year and he had been treating her badly. Around June 1, he locked her in her room for a day. The next day, she and her children left. After she left, he made threatening calls to her sisters house.

Sylvia never told defendant that J.s family went on vacation to Mexico or had a safe. Defendant never said he knew J.s father, mentioned any association with J.s father, or said he had a friend named Jose. During the 18 months she lived with defendant, he never talked to himself, or acted like he was listening to someone who wasnt there, or said he heard voices or had hallucinations.

Idiocy

Pablo told police that he thought defendant was on drugs because he was verbally nonresponsive. Rosa reported that defendant had a zombie-like stare and delayed reactions to questions.

Defendants siblings testified that as a child, defendant was severely beaten by his father, often on the head. Once his father beat him unconscious. As a child, defendant was mentally slow, prone to nightmares, talked and laughed to himself, had fits and saw things that werent there.

By the time of trial, Dr. Jose Silva, the defense psychiatrist, had visited defendant 20 times. In his opinion, defendant suffers from mild mental retardation. In addition, he suffers from a psychotic disorder not otherwise specified [,] post-traumatic stress disorder [,] dissociative disorder not otherwise specified [,] panic attack disorder without agoraphobia [,] a paraphilia not otherwise specified with features of pedophilia and coercive sexuality disorders [,] somatization disorder, and he also qualifies for a culturation problem that is not an illness. He also has a personality disorder not otherwise specified. Defendant also has brain damage, and serious cognitive deficits in the writing, attentional, and memory areas and in the ability to make logical deductions and follow sequential directions. Defendants mental problems make it very confusing for him to understand what is going on, and to see everything in one span of time. Asked if someone with defendants diagnoses would be able to ascertain right from wrong, Dr. Silva answered: He may or may not, depending on the individual. Many individuals will have a real difficulty. But you have to evaluate the case, [on a] case by case basis. Sure. It could be.

Dr. Patricia Perez-Arce, a clinical neuropsychologist, testified defendant had an IQ score of 58 which put him in the mildly to moderately mentally retarded or developmentally delayed range. To have mild as opposed to moderate, severe, or profound mental retardation is still a very significant delay in cognitive development. Defendants family history and mental retardation suggested brain damage. She also believed that defendants auditory and visual hallucinations and dissociation symptoms were actually a part of his severe post-traumatic stress disorder. Someone with mild mental retardation can distinguish between right and wrong.

Prosecutions Rebuttal

As at the competency trial, the prosecution presented evidence of defendants jobs, use of false identification, and ability to handle traffic tickets. No key was ever found. Newspaper clippings of scantily clad young girls were found in defendants jail cell.

Court-appointed psychologist, Dr. Ubaldo Sanchez, opined that defendant was malingering when he interviewed defendant. He disputed the validity of the IQ scoring and did not believe defendant was mentally retarded; persons with limited education often have low IQ scores. He opined that sometimes a person can commit crimes during a psychotic episode, but still be able to distinguish between whats right and wrong and to know what they are doing.

Dr. Mark Bruguera, the jail psychologist, saw defendant when he was admitted to the jails psychiatric unit upon his arrest, in October of 2003 and in December 2003, for a total of 10 days. He diagnosed defendant with adjustment disorder, possibly caused by the severe stress of confinement. Defendant denied experiencing mental illness when he was arrested. Dr. Bruguera believed defendant was faking confusion in December 2003. Defendant was given anti-depressants and a low dose of an anti-psychotic drug for a short time to calm agitation. Dr. Bruguera opined that defendants behavior at the time of the crimes was inconsistent with a psychotic state, and that aggressive behavior was rare in persons with post-traumatic stress disorder.

Defense Surrebuttal

Defendant denied that he was responsible for the torn pictures of girls that were found in his cell.

Sanity Trial

The jury was instructed that it could consider the evidence adduced at the guilt phase on the question of sanity.

Dr. Silva testified that defendant was insane at the time of the offenses. Even though defendant understood he was in trouble and was remorseful, this did not mean he understood the difference between right and wrong, or the nature and quality of his acts.

Dr. Perez-Arce also testified that defendant was insane at the time of the offenses.

She opined that defendant understood the concepts of right and wrong at the level of a seven year old, and since he had a poor hold on reality, he could not understand the nature and quality of his acts.

Court-appointed psychologist, Jeffrey Kline, conducted a sanity evaluation of defendant that included review of numerous records, and testing and interviewing defendant. He testified for the prosecution that defendant was sane. Although he agreed defendant had some mental problems, he nevertheless believed that defendant understood the nature and quality of his acts and that what he was doing was wrong.

Officer White, defendants jailer over a two-month period, never saw defendant exhibit hallucinatory behavior. He watched television and communicated his needs to her in English.

Defendant disputed Officer Whites testimony.

DISCUSSION

I. Misinstruction on the Definition of Competency at the Competency Trial [2]

At the suggestion of the prosecutor, and over defense counsels objection, the trial court omitted the words in a rational manner from the phrase able to assist his attorney in the courts instruction to the jury explaining the standard for competency to stand trial. The court relied on People v. Conrad (1982) 132 Cal.App.3d 361. Thus, at the conclusion of the case, the trial court instructed the jury as follows: Members of the Jury: [] In this proceeding you must decide whether the defendant is mentally competent to be tried for a criminal offense. This is not a criminal proceeding, and the innocence or guilt of the defendant of the criminal charge pending against him is not involved, nor is the question of his legal insanity at the time of the commission of the offense involved. [] Although on some subjects his mind may be deranged or unsound, a person charged with a criminal offense is deemed mentally competent to be tried for the crime charged against him, if: [] 1. He is capable of understanding the nature and purpose of the proceedings against him; [] 2. He comprehends his own status and condition in reference to the proceedings; and [] 3. He is able to assist his attorney in conducting his defense. [] The defendant is presumed to be mentally competent. The effect of this presumption is to place upon the defendant the burden of proving by a preponderance of the evidence that he is mentally incompetent as a result of a mental disorder or developmental disability. (Italics added.)

As the People all but concede, Conrad does not support the trial courts conclusion that the phrase in a rational manner only applies to defendants who represent themselves. Section 1367 provides in relevant part: A defendant is mentally incompetent for purposes of this chapter if, as a result of mental disorder or developmental disability, 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. (Italics added.) Our Supreme Court has consistently described incompetence to stand trial in the statutory language, as the inability to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner. (People v. Dunkle (2005) 36 Cal.4th 861, 885, italics added; see also People v. Lawley (2002) 27 Cal.4th 102, 131; People v. Rodrigues (1994) 8 Cal.4th 1060, 1110; People v. Davis (1995) 10 Cal.4th 463, 527.) This definition comports with due process. (People v. Jablonski (2006) 37 Cal.4th 774, 808.) We conclude it was error to omit the phrase in a rational manner from the instruction.

The court missed an opportunity to correct the error when, in response to the jurys request during deliberations for more elaboration from the Court on points two and three of the definition of mental competence, the court stated simply: If we start getting any more detailed, then the Court would begin taking apart the various bits of testimony that were presented, which would be almost impossible to do in a neutral way. [] What I would suggest, that when you come back tomorrow, reread the instruction and I dont know what number it is or all the instructions. And then go back over in your minds the testimony from the various witnesses that have been presented. And if you want any of the testimony reread, we will be more than happy to give it to you.

However, a juror other than the foreperson then added: Were here to see if hes competent or to see if hes incompetent, but theres no degrees to this incompetency. Its either competent or incompetent. [] [] Correct? The court replied, Correct. [] [] [E]ither a person is competent to stand trial or not competent to stand trial. And you have the definition of what is necessary for a person to be competent to stand trial. The foreperson then offered: I understood the request to be more towards the elaboration of the law. For example, to what degree must the defendant be able to assist his attorney? To what degree must he be able to understand the proceedings? The court replied, Hes going to have to be able to understand the proceedings sufficiently so he can assist his attorney. Now, that doesnt help you at all. [] And, you know, whether or not you want to go about looking at the three things that are necessary separately, together, two, combination, thats up to you. But my recollection of the evidence is that there should be enough testimony to help you with the definition, along with reading the jury instruction.

Section 1138 provides, in relevant part, that [a]fter the jury have retired for deliberation, if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given. The jurys request for clarification triggered a duty on the trial courts part to help the jury understand the legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jurys request for information. [Citation.] Indeed, comments diverging from the standard are often risky. (People v. Beardslee (1991) 53 Cal.3d 68, 97.)

Here, the standard instruction was not full and complete. While the jurys questions seemed more geared toward wanting to know if a competency finding required a person to be further rather than less far along on sliding scale of competency, the jury may well have found it helpful to know that a competent defendant is one who can assist his attorney in a rational manner. Here, the court acknowledged that its answer would not help the jury at all. [A] court must do more than figuratively throw up its hands and tell the jury it cannot help. (People v. Beardslee, supra, 53 Cal.3d at p. 97.) Even if the court could have done more to assist the jury, this type of error does not require reversal unless the defendant can establish prejudice. (Beardslee, at p. 97; People v. Solis (2001) 90 Cal.App.4th 1002, 1015.)

Our Supreme Court has not resolved whether the prejudice from instructional error in the definition of the competency standard is to be measured under Peoplev.Watson (1956) 46 Cal.2d 818, 836or Chapmanv.California (1967) 386 U.S. 18. (People v. Huggins (2006) 38 Cal.4th 175, 193.) Assuming for the sake of argument that there is a reasonable likelihood the jury misunderstood the applicable law (id. at p. 192) and that the Chapman test applies, in our view, the error was harmless beyond a reasonable doubt.

The question put to the experts was whether defendant was competent to assist his attorney in a rational manner. It is true that, in the opinion of Dr. Silva, the defense psychiatrist, defendant was not competent to assist his attorney in a rational manner because of his delusion that that his girlfriend was responsible for the crimes insofar as her voice told him to have sex with his female neighbors and with children. Dr. Silva also testified that defendant believed that his view of his lack of culpability was morally, ethically and legally correct, and that if his attorney were to do the right thing, he would accept his version of events and defend him on that basis, but that he also believed that his attorney would not listen to him and was going to do what he wanted to do.

Unlike the jury, Dr. Silva never saw the videotape defendant made at the request of the defense investigator, in which he entreated his family and wife in Mexico to cooperate with the investigator. In the videotape, defendant told his family that he was in jail on a serious case facing various charges; that the investigator was in Mexico working to help him in the case; and that they could help him with his case by helping the investigator find his brothers and sisters and telling the investigator about his reasons for coming to the U.S. to find a better life, his lack of a place to live in Mexico, the bad treatment he received and how it affected him.

Dr. Silvas opinion was undermined by this striking testament to defendants ability to rationally assist his attorney, his delusions and cognitive deficits notwithstanding. It was also undermined by the testimony of Dr. Perez, the prosecutions clinical psychologist, who agreed that defendant had a psychotic disorder and was emotionally impaired, had some cognitive impairments and was not malingering, but was capable of rationally assisting his attorney to present a mental defense to the charges because he did not deny he was mentally ill, could communicate his delusions to his attorney, and talk with his attorney about his mental processes at the time of the commission of the crimes. The record here established overwhelmingly that despite defendants various psychiatric, cognitive and emotional problems, defendant had the ability to consult with his counsel with a reasonable degree of rational understanding, and had a rational and factual understanding of the proceedings. (People v. Huggins, supra, 38 Cal.4th at p. 194.)

Huggins establishes that a reviewing court may also look to the later guilt trial to determine whether instructional error at the competency trial was prejudicial. (People v.Huggins, supra, 38 Cal.4th at pp. 193-194.) Our review of the record of the guilt trial only reinforces our conclusion that the courts instructional error in failing to modify the phrase able to assist his attorney with the words in a rational manner was, on these facts, harmless beyond a reasonable doubt. Here, as in Huggins, evidence was presented to show that defendant acted normally before, during and after the crimes, and in the jail. (Id. at p. 193.) In addition, at the outset of the guilt trial defense counsel stated that he was satisfied defendant, at this point in time, does have a basic understanding of the function of the jury trial process, the role of the judge, the prosecutor, the attorney, the jurors. Defense counsel further declared his intent to continue to monitor defendants understanding of the proceedings as the trial progresses. Counsel did not declare a doubt as to defendants competency during trial, or disagree with the courts later observation that that theres nothing in the courts point of view that would indicate to the court that [defendants] competence is at issue at this point in time. Finally, defendant testified lucidly in his own behalf at trial, discussed his upbringing, gave a detailed account of the crimes and claimed he committed them because of Joses threats. Here, as in Huggins, the error was harmless beyond a reasonable doubt.

II. Admission of Defendants Statements to Police

Defendant challenges the voluntariness of his implied Miranda waiver and of his admissions to the police. Defendant argues that his implied waiver of rights and statements to police were involuntary and unintelligent because (1) they were the product of clever softening up by Detective Gonzalez and (2) given defendants mental retardation, defendants mere mouthing that he understood his rights did not signify that he actually did understand them. According to defendant, the softening up began during the seven hours Detective Gonzalez spent with defendant at the hospital, and continued during the first interview when the detective asked friendly biographical questions, expressed empathy with defendants immigrant experience, promised to help him, and told him that they could not help him or ask for Gods forgiveness on his behalf until you tell us what all happen[ed]. Defendants claim that he lacked understanding of his rights is based on Dr. Silvas opinion that defendant did not even understand what a right was. In short, defendant argues that his waiver and statements were psychologically coerced.

To properly assess defendants Miranda claims, we first set forth the relevant factual background and the well-established legal principles that inform our analysis. We then apply those principles to the facts presented here.

A. Factual Background

Detective Juan Gonzalez testified at a pre-trial hearing on the admissibility of defendants Mirandized statements to police. He and Sergeant Mary Aberzini interviewed defendant in Spanish three times. Towards the end of the first interview, Aberzini left and Officer Kevin McMillan came in and spoke with defendant. A Sergeant Ryan was present for the third interview. Prior to each of the three interrogation sessions, defendant was informed of his constitutional rights, verbally acknowledged that he understood them, and appeared to understand what was being asked of him. Detective Gonzalez further testified that the tone of the interrogations was conversational and not confrontational; no good cop/bad cop routine was undertaken; and defendant was never threatened or promised lenient treatment. Throughout the interviews, if defendant did not understand a question, he would say so and Detective Gonzalez would restate it. At no time did Detective Gonzalez believe that defendant had any type of mental deficiency, and his level of intellectual functioning remained the same in the interviews. Defendant was alert and somber during all three interviews.

Defendant was arrested at 4:00 or 5:00 a.m. and was taken to Valley Medical Center for treatment of multiple dog bites. Defendant remained at the hospital for approximately 7 hours. Detective Gonzalez arrived at the hospital at approximately 6:00 to 6:30 a.m. and stayed until defendant was released at 1:00 p.m. During the six or seven hours they spent in the hospital, Detective Gonzales intermittently engaged defendant in general conversation about the weather, different places defendant had visited, and where he was from. Sometimes Detective Gonzalez would translate for defendant what the nurses wanted him to do. Detective Gonzalez was just trying to establish a rapport during that time. He did not question defendant about the crimes.

The first interview took place at the sexual assault unit on June 9, 2003, at 2:00 p.m. after defendant had been given food and drink. It lasted approximately two hours, and defendant was not handcuffed. The interview was both videotaped and audiotaped. Detective Gonzalez decided when to end the interview; defendant did not at any time suggest he wanted to end the interview.

During the first interview, the police officers asked defendant several questions with religious overtones. In the context of asking defendant about his immigrant experience, the police officers asked defendant if he went to church.[3] A short time later, the conversation wended its way around to whether defendant had ever tried to lessen his loneliness by meeting women or girls. When defendant explained that he had been beaten up for dancing with a girl at a party, Officer Gonzalez expressed sympathy for defendants loneliness, exhorting defendant to tell the truth.[4] These exhortations were later coupled with offers to help defendant if he told them the truth, sometimes with invocations of God.[5]

The second interview took place the next afternoon in the main jail and lasted approximately one and one-half hours. The interview was audiotaped. The same two officers from the day before were present. The room was considerably larger than the room in the sexual assault unit. Defendant was not restrained. Defendant was again advised of his rights at the beginning of the interview.

During the second interview, defendant stated, I have not understood anything. Detective Gonzalez understood defendant to be indicating that he did not understand the next steps in the criminal process because defendant had earlier made statements that he had never been arrested and had never been involved in anything like this. When Detective Gonzalez reindicated his rights, he clearly said yes, he understood.

During this interview, defendant said he wanted to get out of jail. Detective Gonzalez had heard that from other defendants involved in heinous crimes.

The officers ended the interview; defendant never indicated a desire to end the interview.

The third interview took place on June 11 at the main jail but in a different room that was smaller than the room used the day before. The interview lasted 45 minutes to an hour. Defendants intellectual functioning was the same as it was during the first two interviews.

Dr. Jose Arturo Silva, the defense psychiatrist who testified at the competency trial, also testified for the defense at the Miranda hearing. Due to additional testing that had been done, Dr. Silva was now able to say that defendant was mildly mentally retarded. His other diagnoses psychotic disorder not otherwise specified, post-traumatic stress disorder and panic attack disorder remained the same.

A few days prior to the hearing, Dr. Silva had read to defendant the Miranda warnings from card used by the San Jose police, and determined that defendant did not understand the concepts behind them. For example, defendant did not understand what a right (derecho) was. He understood the police were going to use something on him, but did not know if that was good or bad. He knew an attorney is somebody who is trying to help him, but thought the attorney would help him from being physically attacked by the police or other people in jail. When asked by Dr. Silva about what it meant to have an attorney for free, defendant would become involved in the word free but then would say I still dont have any money or say something that really made no sense. In Dr. Silvas opinion, defendants statement to the police that he did understand his rights could not be taken at face value because of defendants very serious type of psychopathology. Finally, defendant told Dr. Silva that he was afraid of the police officers and felt threatened by them, although he admitted nobody treated him badly during the interviews.

At the conclusion of the hearing, the trial court ruled that defendants statements were voluntary and his Miranda waivers were valid.

B. Relevant Legal Principles

1. Voluntariness

A confession or admission is involuntary, and thus subject to exclusion at trial, only if it is the product of coercive police activity. (People v. Williams (1997) 16 Cal.4th 635, 659.)

The litmus test of a valid waiver or confession is voluntariness. The relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. (People v. Kelly (1990) 51 Cal.3d 931, 950.) In determining whether a confession was voluntary, [t]he question is whether defendants choice to confess was not essentially free because his will was overborne. (People v. Massie (1998) 19 Cal.4th 550, 576.)

No single event or word or phrase necessarily determines whether a statement was voluntary. (People v. Kelly, supra, 51 Cal.3d at p. 950.) In deciding the question of voluntariness, the United States Supreme Court has directed courts to consider the totality of circumstances. [Citations.] Relevant are the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity as well as the defendants maturity [citation]; education [citation]; physical condition [citation]; and mental health. (People v. Williams, supra, 16 Cal.4th at p. 660.) Furthermore, [i]n evaluating a claim of psychological coercion, the question posed is whether the influences brought to bear upon the accused were such as to overbear petitioners will to resist and bring about confessions not freely self-determined. (People v. Kelly, supra, 51 Cal.3d at p. 952.)

2. Waiver of Constitutional Rights

Criminal defendants may waive their Miranda rights, so long as the waiver itself is voluntary. (People v. Whitson (1998) 17 Cal.4th 229.) The waiver may be explicit or implied. (Id. at p. 245.) A valid Miranda waiver may be implied when the defendant is fully informed of his constitutional rights, acknowledges that he understands his rights, but proceeds to talk to the police anyway. (See Whitson, at pp. 247-248 and cases cited therein.) The prosecution bears the burden of proving the voluntariness of the Miranda waiver or confession by a preponderance of the evidence. (Whitson, at p. 248.)

3. Standard of Review

On appeal, we review independently the trial courts determination on the ultimate legal issue of voluntariness. [Citation.] But any factual findings by the trial court as to the circumstances surrounding an admission or confession, including the characteristics of the accused and the details of the interrogation [citation], are subject to review under the deferential substantial evidence standard. (People v. Williams, supra, 16 Cal.4th at pp. 659-660; see also, e.g., People v. Whitson, supra, 17 Cal.4th at p. 248 [despite independent review standard, reviewing court gives great weight to legal conclusions reached by trial court that previously analyzed the same evidence].)

C. Analysis

Viewing the totality of the circumstances, we conclude after a careful and independent review of defendants interview that defendants Miranda waiver and statements were voluntary and not motivated by police tactics or psychological coercion. (People v.Kelly, supra, 51 Cal.3d at p. 953.) First, with respect to defendants Miranda waiver, our independent review of the record supports Detective Gonzales testimony that defendant was fully advised of his rights, and that pains were taken to ensure that defendant understood his rights and that he acknowledged such understanding. We recognize, of course, that Dr. Silva diagnosed defendant as mildly mentally retarded and mentally ill. However, defendants low intelligence and psychiatric symptoms, standing alone, do not render his waiver of Miranda rights involuntary. (Id. at p. 951.) The sole concern of the Fifth Amendment, on which Miranda was based is governmental coercion. (Ibid.) Viewed in the totality of the circumstances, Dr. Silvas entire testimony does not persuade us that defendants waiver was involuntary, in the absence of evidence that the police in some way took advantage of defendants mental weaknesses. The evidentiary record contains no such evidence.

We also reject defendants argument that defendant was subjected to a clever softening up at the hospital, and during the interrogation with expressions of empathy, offers of help and invocations of Gods forgiveness. Officer Gonzalez testimony about his role at the hospital established at most that he hoped to develop a rapport between him and defendant by intermittently making small talk and acting as translator between defendant and hospital staff. This a far cry from the situation in People v. Honeycutt (1977) 20 Cal.3d 150, where the police officer, Williams, testified that for half an hour before defendant was advised of his rights, he and the defendant discussed unrelated past events and former acquaintances and, finally, the victim. Williams mentioned that the victim had been a suspect in a homicide case and was thought to have homosexual tendencies. Although he stated that he did not expect defendant to talk about the offense, Williams testified that It was my duty to continue the efforts to try to get him to talk. And I was successful in it. In the course of their interview Williams could see that [defendant] was softening up. Williams said that they stayed away from a discussion of the offense, but by the end of the half-hour defendant indicated that he would talk about the homicide. (Id. at p. 158.) Here, while Officer Gonzalez may have made ingratiating conversation with defendant, he did not disparage the victim and avoided any discussion of the offenses. (Id. at p. 160.)

Defendant argues that the officers repeated offers to help defendant if he spoke the truth to them were improper. We disagree. The business of police detectives is investigation, and they may elicit incriminating information from a suspect by any legal means. (People v. Jones (1998) 17 Cal.4th 279, 297.) Inducements to speak the truth are not always, or necessarily, coercive. The line to be drawn between permissible police conduct and conduct deemed to induce or to tend to induce an involuntary statement does not depend upon the bare language of inducement but rather upon the nature of the benefit to be derived by a defendant if he speaks the truth, as represented by the police. Thus, advice or exhortation by a police officer to an acc