P. v. Wright

Filed 9/13/07 P. v. Wright CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Ruth Ann Kwan, Judge. Affirmed with directions.

Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Robert F. Katz and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.

After a court trial, appellant David Thomas Wright was convicted of first degree murder. (Pen. Code, 187, subd. (a).)[1] The trial court found true the allegations that appellant committed the murder while engaged in the commission of sodomy ( 190.2, subd. (a)(17)), and that appellant had suffered a prior conviction of a serious or violent felony within the meaning of section 1170.12, subdivisions (a) through (d) and section 667, subdivisions (b) through (i). The trial court sentenced appellant to life in prison without the possibility of parole (LWOP).

Appellant appeals on the grounds that: (1) because the trial court erred in finding him competent to stand trial, the trial courts order granting his motion to proceed in propria persona (pro per) as well as all subsequent proceedings must be vacated as having been conducted in violation of his right to due process of law; (2) assuming the courts finding of competency was supported by substantial evidence when made, reversal is nevertheless required because subsequent revelations in connection with appellants motions to substitute new counsel and proceed in pro per should have caused the trial court to reconsider its previous finding and deny appellants request to represent himself; (3) the special circumstance set out in section 190.2, subdivision (a)(17) violates the Eighth and Fourteenth Amendments by failing to provide a meaningful basis for distinguishing between those persons deserving special circumstance punishment from those who do not, and appellants sentence must be modified; and, (4) given appellants LWOP sentence, the abstract of judgment must be corrected to delete any reference to a parole revocation fine pursuant to section 1202.45.

FACTS

1. Prosecution Evidence

On the afternoon of June 13, 1998, David Lennartson (Lennartson) and Leslie Ungar (Ungar) visited a vacant house at 238 Hill Street in Santa Monica. Lennartson was in the process of buying the house, which was surrounded by high grass and weeds. In the back of the house, Lennartson and Ungar saw a body lying face down in the weeds. The body was wearing a baseball cap backwards. Lennartson and Ungar did not call police because they believed that the person was a drunken transient who had passed out.

On the afternoon of June 14, 1998, Michael Deasy (Deasy), who owned a real estate company, went with a friend and client to look at the vacant house at 238 Hill Street. They both saw what they believed was a dead body surrounded by overgrown grass. The men called police, and Deasy stayed at the scene until police arrived approximately five minutes later. Lennartson arrived, having been told by a neighbor that a coroner was at the Hill Street house, and he told police what he had seen the day before.

Detective John Henry of the Santa Monica Police Department was called to the scene, where the victims body was still located. The victim was later identified as Aviva Labbe (Labbe). Detective Henry saw numerous cigarette butts in the back of the house, and a Kool cigarette box was found in a plant along with recent ashes. Police collected 25 cigarette butts and sent them to the sheriffs crime lab for DNA analysis. Near the body, Detective Henry found a motel key to the Santa Monica Motel, which was within walking distance of the house.

Labbes purse was found to contain two boxes of Marlboro cigarettes, an address book, and approximately $331 in cash. The front part of her loose sweatpants appeared to have slid down or been pushed down. Labbe had been bludgeoned in the head, and there was blood spatter on the walls and the ground surrounding her body. Detective Henry saw nothing that might have been the murder weapon.

At the coroners office, criminalist Dan Anderson (Anderson) examined Labbes body for signs of sexual assault. While taking a rectal swab, Anderson found a black pager completely inserted into Labbes rectum. He removed the pager, which was admitted into evidence at the coroners office.

An autopsy revealed that Labbe died from aspiration of blood into her lungs. The bleeding was the result of a fractured nasal bone that allowed blood to leak into the victims trachea and airway. There were lacerations on the forehead and scalp that were caused by blows from a blunt object. There was also evidence suggestive of Labbe having been strangled, and there was bruising consistent with having been grabbed roughly by the arm. The coroner was of the opinion that Labbes death was a homicide. Hemorrhaging in the tissue surrounding the rectum indicated that blunt force trauma occurred before death. Toxicology testing detected a blood alcohol level of between .16 and .19 in Labbes body.

Detective Henrys investigation revealed that the pager was sold to Labbe under the name of Vivian Ramon. Detective Henry also discovered that Labbe rented a motel room at the Santa Monica Motel with her cousin. Rashida Khan, who worked at the motel, last saw Labbe on the evening of June 12, 1998. Labbe smelled of alcohol.

DNA analysis of the swabs obtained from Labbes body revealed that the highest quantity of spermatozoa was on the rectal swab. The rectal swab, a reference sample from Labbe, and a reference sample from a suspect named Mark Roberts were sent to Serological Research Institute (SRI) to generate DNA profiles. Roberts was excluded as a suspect in these tests and in subsequent tests.

Detective Henry requested that the DNA profile extracted from the sexual assault kit be checked against the California Department of Justice DNA database. In January 2001, Detective Henry was informed that the database had matched the DNA profile to appellant.

Detective Henry performed a background check on appellant and found he was on parole and had failed to register pursuant to section 290. A warrant had already been issued for his arrest. While conducting his investigation into appellant, Detective Henry spoke with Reverend Sandra Richards, who was affiliated with a church located at 235 Hill Street in Santa Monica in 1998. The church owned a building at 237 Hill Street that was vacant in June 1998. Reverend Richards identified appellant from a photographic array as a person she saw sleeping and setting up residence on the porch of the vacant building. Reverend Richards had asked appellant to leave several times, but he would always come back. Reverend Richards found alcohol bottles on the porch, and she believed appellant was drunk or under the influence of something when she spoke to him.

Detective Henry interviewed appellant on February 8, 2001, soon after his arrest. Appellant was advised of his rights, which he waived. When shown a photograph of Labbe and another woman and asked if he had seen Labbe before, appellant said no, and then said, maybe. Appellant said he believed he had seen the other woman (not the victim) in the photograph the night before he was arrested. Detective Henry told appellant that his sperm was found in Labbes body and asked him if he had an explanation. Appellant said he did not and that he had never had sex with Labbe. He denied sleeping or drinking at any vacant houses in Santa Monica. Appellant said that he believed he was incarcerated in 1998 and then said he believed he was living in Venice at that time. Detective Henry ascertained that appellant was living within a few blocks of the south city limits of Santa Monica during 1998. Appellants parole agent confirmed that appellant was not in custody in June 1998.

Detective Henry took appellant to the crime scene after again advising him of his rights. Appellant said he had never been there and had not even been on that side of the street, although he had attended some Alcoholics Anonymous meetings at the church across the street. He denied having seen or had sex with Labbe. He said it was impossible for his DNA to have been found in sperm found inside her body. When shown photographs of Labbes injuries, appellant said it was outrageous for anyone to do such a thing just to have sex and that he would never do anything like that.

In March 2001, Detective Henry obtained two saliva swabs from appellant after obtaining a search warrant. The swabs were sent to SRI for comparison with the DNA profile obtained from sperm on the rectal swab. Brian Wraxall (Wraxall) a technical leader at SRI, was of the opinion that the semen from the rectal swab originated from appellant. Appellants DNA profile matched the DNA profile obtained from the rectal swab at all 20 loci tested. Appellants DNA profile is so rare that the chances of another person having this profile is in the septillion or quintillion range. Wraxall also testified that DNA found on some cigarette butts from the crime scene was consistent with appellants DNA. One particular butt had DNA that was definitely from appellant.

Detective Henry believed that Labbe was returning to her motel when she was coerced or abducted from the area of 238 Hill Street. She was taken to the rear of the house where she was sexually assaulted and bludgeoned to death. His opinion was based on information from witnesses, the blood spatter evidence, the alcohol in Labbes system, and the fact that her sandals were found nearby and one of them had a heel missing.

Pursuant to Evidence Code section 1108, the prosecution called Esther Hough to testify about an incident with appellant that occurred on September 26, 1994, at approximately 10:30 p.m. Appellant followed her as she walked home alone on Wilshire Boulevard near Second Street. Appellant said things to Hough, such as Hey Baby. Appellant kept getting closer and Hough walked faster and faster. Appellant eventually jumped on Hough and pushed her against a wall. He forcefully touched her breasts and vaginal area outside of her clothing. When Hough fell to the ground, appellant got on top of her and Hough screamed for help. A man approached them, and appellant let Hough go. Someone called the police, and Hough told the police about the attack.

Linda Mulvey also testified pursuant to Evidence Code section 1108. She stated that she reported a rape to the Santa Monica Police Department in 1992. She remembered going to the hospital that same day but did not recall details of the incident. She remembered smoking crack cocaine with appellant. He pulled out a knife and said he would kill her if she did not do what he said. Appellant raped her, but she walked around with him and smoked more crack afterwards. She did not consent to sex with appellant but only complied because she feared for her life. She did not tell police she had been smoking cocaine with appellant before the rape.

Officer David Rynski of the Santa Monica Police Department took Mulveys rape report. Mulvey told Officer Rynski that she could describe the rapist. She said that the rapist had punched her in the head and forced her at knife point to have vaginal and anal intercourse with her. She said he was an African-American male with a full beard and mustache who went by the name David. Officer Rysnki took Mulvey in his patrol car to try to find the area of the rape. As they drove northbound on Second Street Mulvey spotted appellant and said he was the assailant. When appellant was detained, a folding knife was found in his pocket.

2. Defense Evidence

Appellant called Bonita Stewart, his parole agent, and asked her if her name was not Jackson and when it had changed. She testified that she had not used the last name of Jackson since December 2003. She acknowledged that her testimony for the People was based on information from appellants central file. She reviewed appellants prison entry and parole dates with appellant in reverse chronological order from 2002 to 1999.

DISCUSSION

I. Competence Finding

A. Appellants Argument

Appellant contends that application of established legal principles governing the determination of a defendants competency to stand trial compels the conclusion that the trial court erroneously found appellant competentan error that infected all subsequent proceedings. As a result, reversal of the verdict, special findings, and judgment is required.

B. Proceedings Below

On May 26, 2004, prior to trial, appellants attorney, Leonard Garber, declared a doubt as to appellants competency pursuant to section 1368. The trial court appointed two doctors to examine appellant pursuant to sections 730 and 972 before a tentative hearing date of July 8, 2004. The section 1368 hearing was held on September 22, 2004, and appellant requested that his counsel submit on the three reports that had been brought before the court as of that date, along with argument. Counsel told the trial court that he still believed appellant was not competent with regard to the element of cooperating with counsel and being able to go through the issues of the case. Counsel pointed out that appellant had a history of mental illness dating back to 1995.

The trial court noted that a person may have a mental disease yet still be competent to stand trial and to understand the charges and the nature of the proceeding against him. The trial court then noted that appellant did not wish to have testimony from any of the three doctors who had submitted reports, and it called the matter for a formal section 1368 hearing. The parties stipulated that the reports of three doctors would be consideredthose of Dr. Fairbanks, Dr. Malinek, and Dr. Markman, and the reports were admitted into evidence.

Defense counsel argued that Dr. Malinek had engaged in double-speak. The doctor first stated that appellant was odd and peculiar with a troubling history of psychotic symptoms, distorted thinking, and serious breakdowns of impulse control. He then stated that this does not reflect a lack of capacity but rather volitional control. Counsel argued that it was necessary to have a client that could discuss the case rationally or at least give information that allowed a full investigation. On the other hand, Dr. Markman believed appellant could not fully cooperate with his counsel and was not competent to stand trial. Counsel stated that the very things the doctors talked about--appellants lack of control, his distorted thinking, and the way he views the legal system--were exactly the things that made him incompetent because counsel could not communicate with his client.

The prosecutor argued that Dr. Markmans last examination of appellant had been quite a while ago.[2] She stated that many criminal defendants have mental issues, but the issue in this case was whether appellant understood and could cooperate and do things with his attorney if he wished. She argued that in light of the opinions of the other doctors, Dr. Markmans opinion should not be controlling. There was simply not enough evidence of such serious mental illness that appellant would be incapable of understanding what he was on trial for and the nature of the proceedings.

The trial court stated that, having read all three reports, it found Dr. Markmans report less persuasive than those of Dr. Fairbanks and Dr. Malinek. Dr. Markmans report showed that he had interviewed appellant in two prior cases and found him competent. The trial court stated that it did not appear that appellants mental illness was any worse in the latest (2003) interviews and that Dr. Markman just felt that because of some inconsistencies in appellants recounting of his personal history and because of his overall mental illness history, the doctor was just going to find him not competent this time around.

On the other hand, Drs. Fairbanks and Malinek went into detail regarding appellants history and the content of their examinations. They had read and evaluated other doctors reports and performed testing on appellant. According to the trial court, both doctors found appellant difficult, controlling, meaning controlling tried to control the interview as to the information that he wishes to give. Dr. Malinek noted that appellant was unhappy with Mr. Garber but was clearly aware of the proceedings against him, understood the trial process, the system, the charges, and--if he chose to be cooperative--was able and capable. The trial court stated that although Mr. Garber found appellant difficult, and appellant chose not to cooperate with him because appellant doesnt like Mr. Garber, that was not a basis for finding him not competent.

The trial court stated that based on all the reports it found appellant manipulative. He might suffer from mental illness but his illness did not make him incompetent to stand trial. The trial court found appellant presently mentally competent to stand trial within the meaning of section 1368 and it reinstated criminal proceedings.

C. Relevant Authority

A person cannot be tried or adjudged to punishment while that person is mentally incompetent. ( 1367, subd. (a); see also Drope v. Missouri (1975) 420 U.S. 162, 172.) Both the due process clause of the Fourteenth Amendment to the United States Constitution and state law prohibit the state from trying or convicting a criminal defendant while he is mentally incompetent. [Citations.] A defendant is incompetent to stand trial if he or she lacks a sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding--and . . . a rational as well as a factual understanding of the proceedings against him. [Citations.] [] Both federal due process and state law require a trial judge to suspend trial proceedings and conduct a competency hearing whenever the court is presented with substantial evidence of incompetence, that is, evidence that raises a reasonable or bona fide doubt concerning the defendants competence to stand trial. [Citations.] (People v. Rogers(2006) 39 Cal.4th 826, 846-847.)

Our Supreme Court has given the following standard for determining substantial evidence of incompetency from mental illness based upon expert opinion: If a psychiatrist or qualified psychologist [citation], who has had sufficient opportunity to examine the accused, states under oath with particularity that in his professional opinion the accused is, because of mental illness, incapable of understanding the purpose or nature of the criminal proceedings being taken against him or is incapable of assisting in his defense or cooperating with counsel, the substantial-evidence test is satisfied. (People v. Welch (1999) 20 Cal.4th 701, 738, quoting People v. Pennington (1967)66 Cal.2d 508, 519.)

D. SubstantialEvidence Supports Trial Courts Ruling

We agree with the trial courts ruling and its assessment of the psychiatric reports. Two out of the three evaluators (Drs. Malinek and Fairbanks) concluded that appellant was competent to stand trial. Dr. Malinek stated that appellant appeared to understand the charges quite well and seemed capable of collaborating with an attorney in presenting a defense if he wanted to. Dr. Malinek found there was no evidence of delusions that would hinder appellants capacity to collaborate with an attorney in presenting a defense. Although appellant might be difficult to work with and insist on his own agenda, there was no evidence he was psychiatrically incapable of appropriate information processing, of comprehending alternatives, and of making decisions in court.

Dr. Fairbanks acknowledged the same potential difficulties in an attorneys dealings with appellant, but he recommended that the case proceed because appellant was competent. He possessed the appropriate knowledge of the courts functioning and ability to deal with his attorney, although he was rigid and somewhat difficult.

Dr. Markman also noted appellants awareness of the pending charges and his understanding of the nature and purpose of the proceedings. Dr. Markman was of the opinion however, that appellants illogical thinking impaired his ability to cooperate with counsel in a rational manner. However, Dr. Markman stated that the clinical picture was quite similar to his previous contacts with appellant in 1999 and 2001--the same pervasive delusional, paranoid thought process. Dr. Markman acknowledged that he had found appellant competent on those occasions. We note that Dr. Markmans latest interview with appellant occurred in late September and October of 2003, almost a year before the other evaluations. Dr. Malinek in August of 2004 found no evidence of pronounced delusions that would hinder appellants capacity to work with counsel. Dr. Malinek further stated that there was no evidence appellant was responding to internal stimuli. There was also no evidence that his symptoms and difficulties were not within his volitional control. Dr. Malinek stated that none of appellants delusions or other psychotic symptoms involved the judicial system or interfered with his ability to collaborate with an attorney, if he were willing to do so. Appellant was able to understand alternatives and make informed decisions. He was more than able to discuss various dispositions and alternatives.

Dr. Fairbanks noted that appellant might have delusions regarding his race in July 2004, but he had shown those previously. Dr. Fairbanks noted that, once questions about appellants race were put aside, appellant seemed to relax. He was so competently argumentative and controlling during the evaluation that Dr. Fairbanks found that this in itself implied appellant was able to participate in his own defense.

Finally, both Dr. Malineks and Dr. Fairbankss evaluations were more complete than that of Dr. Markman and provided the trial court with greater insight into appellants level of competency. These two reports clearly provided substantial evidence in support of the trial courts finding, and appellants argument is without merit.

II. Courts Alleged Failure to Revive Competency Issue

A. Appellants Argument

Appellant argues that even if substantial evidence supported the initial determination of appellants competency, his subsequent behavior and assertions, especially those occurring during his motion to proceed in pro per, should have caused the trial court to reconsider its earlier ruling. The trial court should have at that point declared appellant incompetent to stand trial and should not have allowed him to represent himself and waive his right to a jury trial.

B. Relevant Authority

The courts duty to conduct a competency hearing may arise at any time prior to judgment. [Citation.] Evidence of incompetence may emanate from several sources, including the defendants demeanor, irrational behavior, and prior mental evaluations. [Citations.] (People v. Rogers, supra, 39 Cal.4th at pp. 846-847.)

[U]pon the presentation of substantial evidence showing a substantial change of circumstances or new evidence giving rise to a serious doubt about the validity of the original competency finding, regardless of the presence of conflicting evidence, the trial court must hold a subsequent competency hearing. This substantial evidence standard of proof is the same standard applied by the trial court in determining whether an original competency hearing should be held. [Citation.] (People v. Kaplan (2007) 149 Cal.App.4th 372, 376.) The decision to hold a renewed competency hearing is reviewed for an abuse of discretion. (People v. Marshall (1997) 15 Cal.4th 1, 33.)

The standard for competency to waive the assistance of counsel is the same as that for competency to stand trial--whether the defendant has a sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, and has a rational as well as factual understanding of the proceedings against him. [Citations.] (People v. Bradford (1997) 15 Cal.4th 1229, 1364.)

C. Proceedings Below

1. Pro Per Ruling

On January 3, 2005--appellants first court appearance after being found competent--he petitioned the trial court to represent himself. The trial court advised appellant that he had an excellent lawyer who was well respected and who had done a lot of work to try and put reasonable doubt in the mind of the jurors. Appellant responded, Wait, your honor. There has not been any indication that I wanted a trial by jury. Defense counsel explained that appellant had indicated he might not want a jury trial, and that was one of the disagreements he had with appellant. The trial court explained to appellant that his case was of the type that is better tried before a jury than a judge. There were factual issues and potential defenses that might not do as well in front of a judge as they would in front of a jury. The prosecution would have the burden of convincing 12 people instead of one. Appellant stated he still thought he would much prefer a trial by judge.

At that point the trial court returned to the issue of appellant representing himself and asked him why he wanted to give up an excellent lawyer. Appellant said that neither of his lawyers had shown him that they are concerned in this case about anything. They refuse to ask questions that I ask them to ask the District Attorney. They dont show that they are concerned enough to ask the District Attorney about evidence that has been withheld from this particular case. The trial court then asked appellant if what he wanted was actually a different lawyer, in which case the trial court would consider a Marsden motion.[3] Appellant said he knew of this type of motion.

The trial court held a hearing on a Marsden motion, which was denied. The trial court found that counsel was doing a good job and that there were strategic differences between appellant and his attorney. Some of the things appellant wanted his attorney to do were not relevant. Apart from their disagreement over whether appellant should have a jury trial, the conflict between them was not substantial.

After the Marsden hearing, appellant told the trial court he still wished the court to consider his pro per petition. The trial court asked appellant if he understood he had a right to have an attorney and that it was not advisable to proceed without a lawyer, and appellant answered, Yes, I do. When asked if he understood that the trial court was not going to give him preferential treatment, appellant replied, Im not looking for any. When asked if he understood he was expected to abide by the rules of evidence, appellant replied, Very much. When asked if he understood he must conduct himself in an orderly manner, appellant replied, Fair enough.

The trial court asked appellant about his education as stated in his petition. Appellant said he attended Hollywood High School and Mexico State Formal Education. He stated he attended UCLA, Oklahoma, and Colorado State College. He said he graduated from all three. He said his degree was two 12-year courses of six and two 12-year courses of five. He said his degree was a Supreme Court Attorneyship. Courtroom attorney D.A. His legal education consisted of Courtroom Attorney D.A. Appellant said he knew he was being tried for murder but did not know what type of murder because the lawyer did not say. When the trial court told him it was first degree, appellant replied, Okay. Now I know. The trial court pointed out that appellant had checked the no box for the question, Do you know what facts have to be proved before you can be found guilty of the offenses charged? Appellant indicated that was incorrect and he thanked the trial court for bringing that to his attention.

Appellant confirmed that he had read the petition document in its entirety and he understood its content, saying Yes, I do understand. I mean, its not the first time that, you know, Ive tried to do this in this situation so I do understand. He acknowledged his initials and his signature and again stated he understood his right to have an attorney and that it was his desire to give up that right, saying I really would like to give up that right. When asked if he understood that it is very dangerous to represent oneself he replied, I read that twice before I initialed it. Yes. Appellant said he would require 15 working days to prepare for trial. The trial court stated it would gladly give appellant more time to work on the case if he needed it, but appellant indicated he did not require it.

The trial court then stated, Theres something--I had a little issue with maybe your educational background and your legal training, although Im not unaware of this issue previously. Okay? Having said that, the fact that you may have some type of illusion regarding your own educational training, and I cant prove one way or another whether it is an illusion or not, but Ive never heard of any kind of a C-A degree. But--but be that as it may, Ive talked to you extensively. You go--you like to go off on tangents here and there. But I do feel that you understand the proceedings. You understand whats being charged against you. You understand the courtroom proceeding. You understand whats going on. You understand the difference between a jury trial and court trial. And the fact that you are intelligent enough to really look at your case and the various defenses, that the things that you want done by your attorney, although not necessarily something that your attorney agrees with, that I still feel that you are competent to proceed, despite the fact that maybe some of your background information may not necessarily be correct. I want to state that for the record. And that you do have an understanding of the proceedings, and that I am going to grant your request to proceed in pro. per. The trial court allowed Mr. Garber to stay on as standby counsel.

2. Waiver of Jury Trial

In the same proceeding, the trial court mentioned to appellant that he had previously expressed a desire to waive jury, and appellant confirmed this. The trial court informed appellant that both sides had to waive and that if the prosecutor did not wish to waive a jury trial, there could not be a court trial. The prosecutor mentioned that she had to confer with her supervisors.

At appellants next court appearance, appellant emphatically reiterated his desire to continue as a pro per and to waive a jury trial. The prosecutor then explained to appellant his right to a jury trial and appellant stated that he understood and that he gave up his right to have a trial by jury.

D. No Abuse of Discretion

We find no abuse of discretion in the trial court continuing to allow appellant to proceed in pro per, to waive his right to a jury trial, and to proceed to conclusion with the trial. The colloquy between the trial court and appellant in which he gave up his right to a jury trial demonstrates that appellant was coherent and lucid. The record shows that throughout the trial appellant behaved rationally, if inexpertly, during his examination of witnesses. Although many of his questions related to matters that were not relevant to the matter at hand--such as the weight of the pager, or why he was allowed to wear a blanket during his interview--he displayed no erratic behavior and his questions were cogent.

The record also shows that the trial court continued to conscientiously observe and assess appellant throughout the trial for signs of incompetence, and the trial court summarized its opinion on this matter at the close of trial. Referring to appellants new trial motion, which contained many references to matters having no relevance to appellants case, the trial court stated, I also want to indicate that in your motion for new trial, you made some references to matters that continue to show that you still suffer at times from delusions. . . .  And quite frankly, I want to state for the record that at the time of your 1368 hearing, the court was aware of the fact that you, at times, can have delusions. And the psychiatric experts who examined you, Dr. Fairbanks and Dr. Malinek, in particular, also found that you were delusional. However, both of them, despite the fact that they were aware of your--the fact that you were delusional, felt that you were competent to stand trial because they believe that your delusions did not involve the judicial system or would--or would--and the type of delusions that you were having did not interfere with your ability to collaborate with an attorney in presenting a defense if you want to or--and that did not in any way interfere with your cognitive processing process to comprehend and make informed decisions about your case.

After the trial court denied appellants new trial motion, it asked appellant if there were any legal causes why he could not be sentenced. At that point appellant began asking for time to seek legal assistance. The trial court observed that maybe Mr. Wright is trying to manipulate the system at this point. . . . When I told him that I was not inclined to give him a continuance, all of a sudden he switched gear and said, well, what if I hire my own lawyer? . . . [T]he reason why I particularly pointed out to this colloquy is that it shows his intelligence. It shows his ability to try to manipulate the system. He understands whats going on.

As noted, a trial court is required to stop proceedings and order a competency hearing only if it believes there is a doubt as to a defendants mental competence to stand trial or if the defendant presents substantial evidence that raises a reasonable doubt about his competence, and the trial court in this case clearly indicated it had never entertained such a doubt. ( 1368, subds. (a) and (b).) As we have indicated previously, appellants conduct during trial did not constitute substantial evidence raising a reasonable doubt about his competence, and his questioning of witnesses revealed no delusional content. The California Supreme Court explained in People v. Jones (1991) 53 Cal.3d 1115, 1153 that when, as in this case, a competency hearing has already been held, the trial court may appropriately take its personal observations into account in determining whether there has been some significant change in the defendants mental state. This is particularly true when, as here, the defendant has actively participated in the trial. We conclude that the trial court here did not abuse its discretion by not vacating its prior competency finding and by allowing appellant to proceed with the trial, adopt pro per status, and waive his right to a jury trial.

III. Special Circumstance Sentencing

A. Argument

Appellant contends that Californias special circumstances set out in section 190.2 are unconstitutionally applied where the theory for the predicate offense of first degree murder requires proof of elements identical to the elements required to establish the charged special circumstance. There is no meaningful basis for a jury to distinguish between the factual findings necessary for a guilty verdict of first degree murder from the findings required to establish the special circumstance. Therefore, use of the special circumstance as a basis for imposing a sentence of death or LWOP violates the Eighth Amendment prohibition against cruel and unusual punishment and the Fourteenth Amendment right to due process of law.

B. Proceedings Below

After consideration of the probation report, victims relatives letter, and hearing from appellant, the trial court stated, [S]ince you were convicted of murder and also the special allegation was found to be true, the only sentence the court could impose at this time is life without the possibility of parole; and that is what youre sentenced to.

C. LWOP Properly Imposed

Section 190.2, subdivision (a) provides that the penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found under section 190.4 to be true. Section 190.2, subdivision (a)(17) provides that one of the special circumstances occurs when [t]he murder was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit, the following felonies: [] . . . [] (D) Sodomy in violation of Section 286.

The constitutional concerns governing the imposition of sentence under section 190.2 are the same for all allegations of a felony-murder special circumstance whether the sentence is death or LWOP. (People v. Estrada (1995) 11 Cal.4th 568, 575-576.) And in death penalty cases, the California Supreme Court has repeatedly rejected appellants argument: This court has consistently rejected the claim that the statutory special circumstances, including the felony-murder special circumstance, do not adequately narrow the class of persons subject to the death penalty. [Citations.] (People v. Pollock (2004) 32 Cal.4th 1153, 1195.) As the California Supreme Court has explained, in Lowenfield v. Phelps (1988) 484 U.S. 231, the United States Supreme Court made it plain that the triple use of the same facts did not offend the cruel and unusual punishment clause. (People v. Marshall (1990) 50 Cal.3d 907, 946; see also People v. Taylor (2001) 26 Cal.4th 1155, 1183.) In People v. Marshall, the same facts were used to support (1) the conviction of first degree murder on a theory of felony murder, (2) the finding of the felony-murder special circumstance, and (3) the imposition of the penalty of death. (People v. Marshall, supra, at pp. 945-946.)

We are bound by the decisions of the California Supreme Court, and we therefore reject appellants claim. (See People v. Kennedy (2005) 36 Cal.4th 595, 640.)

IV. Parole Revocation Fine

Appellant contends, and respondent concedes, that the abstract of judgment must be amended to delete reference to a parole revocation fine pursuant to section 1202.45.

The oral pronouncement of judgment reveals that the trial court did not impose such a fine. In any event, such a fine would have been in error, since the trial court sentenced appellant to LWOP. (See People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183.)

DISPOSITION

The judgment is affirmed. The superior court is directed to amend the abstract of judgment to remove any reference to a parole revocation fine pursuant to section 1202.45 and to send a corrected copy of the abstract to the California Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_______________________, J.

CHAVEZ

We concur:

_____________________, P. J.

BOREN

_____________________, J.

ASHMANN-GERST

Publication Courtesy of California free legal resources.

Analysis and review provided by Spring Valley Property line attorney.

[1] All further references to statutes are to the Penal Code unless stated otherwise.

[2] Dr. Markmans report stated he had interviewed appellant in September and October of 2003, approximately one year earlier.

[3] People v. Marsden (1970) 2 Cal.3d 118 (Marsden).