In re ISIDRO CALDERON HERNANDEZ

Filed 9/27/06

CERTIFIED FOR PUBLICATION

THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Story continue from Part I ...

The Attorney General’s first assertion is based on inapt authority discussing the use of competency statements at trial for the purpose of impeaching a testifying defendant. Petitioner did not testify at either the guilt or sanity trial. In any event, the California Supreme Court has recently decided this issue adversely to the Attorney General’s position. (People v. Pokovich (Aug. 31, 2006, S127176) __ Cal.4th __.) Further, arguing defense counsel invited the error and/or opened the door for the admission of otherwise inadmissible testimony does not address petitioner’s claim of prejudice. The second assertion requires an evaluation of the probable effect of inadmissible mental competency evaluation and testing evidence on petitioner’s case for insanity in light of the relevant legal authorities, beginning with Tarantino.

In Tarantino, supra, 48 Cal.App.3d 465, the petitioner refused to submit to a psychiatric examination to determine his competency under section 1367 et seq. unless accompanied by his attorney. (Id. at p. 468.) The petitioner contended the examination violated his right to counsel as well as his Fifth Amendment right to be free from self-incrimination. (Id. at p. 469.) The appellate court concluded no violation of the privilege against self-incrimination would result by “compelling a defendant to submit to examination by court-appointed psychiatrists under section 1367 et seq., at least under a judicially declared immunity reasonably to be implied from the code provisions.” (Ibid.) With the principle of a judicially declared immunity in place, the court expressed “no hesitancy in declaring that neither the statements of petitioner to the psychiatrists appointed under section 1369 nor the fruits of such statements may be used in trial of the issue of petitioner’s guilt, under either the plea of not guilty or that of not guilty by reason of insanity.” (Id. at p. 470.)

The California Supreme Court specifically approved of the Tarantino court’s judicially declared rule of immunity in Arcega, supra, 32 Cal.3d 504. There the court appointed a psychiatrist to examine the defendant after he entered a plea of not guilty by reason of insanity. However, the psychiatrist recommended the defendant undergo a competency evaluation after his initial appointment because the defendant was “so psychotic.” (Id. at p. 521.) Later, the court appointed the same psychiatrist to evaluate defendant’s competency. (Ibid.) During a later examination, defendant provided a detailed account of the crimes, and the competency examination formed the basis of the psychiatrist’s opinion the defendant had the capacity to form the requisite mental states for the crimes charged, and that the defendant had been feigning mental illness to avoid trial. (Ibid.)

The Supreme Court held the psychiatrist’s testimony “violated the rule of Tarantino that ‘neither the statements of [a defendant] to the psychiatrists appointed under section 1369 nor the fruits of such statements may be used in trial of the issue of [an individual’s] guilt . . . . [Citation.]” (Arcega, supra, 32 Cal.3d at p. 522.) The Supreme Court went on to explain, “[t]his rule is necessary to ensure that an accused is not convicted by use of his own statements made at a court-compelled examination. The rule also fosters honesty and lack of restraint on the accused’s part at the examination and thus promotes accuracy in the psychiatric evaluation. Hence, the rule protects both an accused’s privilege against self-incrimination and the public policy of not trying persons who are mentally incompetent.” (Ibid.) The court also concluded the admission of the psychiatrist’s testimony violated the federal Constitution as well as state law, under the United States Supreme Court’s holding in Estelle v. Smith (1981) 451 U.S. 454. (Arcega, supra, 32 Cal.3d at p. 523.)

The Arcega rule has been repeatedly endorsed. (Centeno v. Superior Court (2004) 117 Cal.App.4th 30, 42 [contrasting the compelled nature of competency proceedings with mental retardation proceedings under section 1376]; Baqleh v. Superior Court (2002) 100 Cal.App.4th 478, 504 [defendant may not refuse to participate in court-ordered competency evaluations because the judicially declared rule of immunity provides necessary assurance an accused will not be convicted nor his or her sentence enhanced on the basis of statements]; People v. Harris (1987) 192 Cal.App.3d 943, 949 [on retrial, prosecution must use psychiatrist or psychologist other than those who examined defendant to evaluate his competency to stand trial].) Further, the judicially declared rule of immunity prohibits statements made in a competency evaluation from being used in either the guilt or sanity phase of a defendant’s trial. (People v. Weaver (2001) 26 Cal.4th 876, 961 (Weaver).)

In Weaver, supra, 26 Cal.4th 876, the court appointed two psychiatrists, Dr. Cutting and Dr. Criswell, to examine the defendant and render opinions as to his competency and sanity. At trial, Cutting and Criswell testified in addition to three other prosecution experts during the sanity phase of the defendant’s trial. While defense counsel expressed some concern over the dual use of their opinions at the sanity phase, counsel did not make a specific objection on the grounds the testimony violated the defendant’s privilege against self-incrimination or the Arcega rule. Moreover, the defendant called 14 expert witnesses on his own behalf during the sanity phase.

On appeal, the defendant argued the court’s appointment of Cutting and Criswell in their dual capacities violated his Fifth Amendment right to be free from compelled self-incrimination. The California Supreme Court agreed the psychiatrists’ testimony was inadmissible, but because defense counsel failed to object on proper grounds, the issue had been waived for appeal. Nevertheless, considering the issue of prejudice due to ineffective assistance of counsel, the court stated the following: “Numerous expert witnesses testified at the sanity phase of trial and several of them . . . expressed the opinion that defendant was not insane or did not suffer from a mental disease or defect. Neither Dr. Cutting nor Dr. Criswell learned information from defendant during their competency examinations that was not available to the other expert witnesses in their respective examinations of defendant. Although defendant argues ‘it is easy to see how [the] corroborating testimony [of Drs. Cutting and Criswell] tipped the scales and hurt [defendant] irreparably’ at the sanity phase, the scales were not closely balanced, as evidenced by the fact the jury took less than one hour to find defendant had failed to carry his burden of demonstrating he was insane at the time of the crimes. The further revelation from Dr. Criswell that defendant posed a danger in the future was no doubt unsurprising to the jury given the facts of the case and was not the ‘highly inflammatory’ information defendant claims it to be.

Moreover, the testimony of Drs. Cutting and Criswell was not uniformly negative. Although Dr. Cutting concluded defendant was not insane, he testified defendant suffered from a schizoid personality disorder and that defendant probably did experience hearing voices in his head. Dr. Criswell testified defendant endured an ‘extremely pathological family,’ which could have formed the basis of his developing a mental condition as an adult.

We thus conclude that while permitting Dr. Cutting and Dr. Criswell to testify at the sanity phase was error, the error was not preserved for appeal, nor was counsel constitutionally ineffective for failing to object. [Citations.]” (Id. at pp. 961-962.) Thus, the court concluded there was no reasonable probability of a more favorable result had the court properly excluded the inadmissible testimony of Drs. Cutting and Criswell. (Id. at pp. 962-963.)

Here, the prosecution called three expert witnesses at petitioner’s sanity trial, Sharma, Wallstrom, and Rogers. Sharma formed his opinion petitioner “was faking or malingering mental incompetenc[e] and mental illness” during his competency evaluation as demonstrated by his responses to questions from either counsel. He consistently referred to defendant’s statements during the competency evaluation throughout his testimony and formed his opinion defendant “knew what he was doing” from the competency evaluation. At most, Sharma would allow petitioner had a mental problem.

The entirety of Wallstrom’s testimony, over 40 pages of reporter’s transcript, pertained to his interviews and tests conducted while defendant was an involuntary patient at Patton State Hospital. Wallstrom’s opinion of defendant’s sanity, like Sharma’s, is based entirely on defendant’s responses to questioning during involuntary competency evaluations. Wallstrom testified, “[defendant] met the criteria for malingering because, first, he could not have obtained the scores on the tests that I gave him without doing so intentionally. Those had to be intentionally produced wrong answers.

There is certainly the external incentive. He has very serious charges, and he clearly did not -- did not want to go to court. And, his symptoms on the face of them were implausible.” Wallstrom felt he could not assess petitioner’s mental state due to his “malingering strategy.” Rogers’ was appointed to examine petitioner’s mental status in relation to his plea of not guilty by reason of insanity. Consequently, her testimony was not solely based on records from the competency evaluations. However, she testified that she “use[d] every bit of information gathered by all the other doctors in this case” in forming her opinion of petitioner’s sanity, and frequently referred to the observations and conclusions of the competency evaluators. The judicially declared rule of immunity applies to the defendant’s statements to the psychiatrists appointed under section 1369 and to the fruits of such statements. Neither one may be used at the trial on the issue of the defendant’s guilt under either the plea of not guilty or of not guilty by reason of insanity. (Baqleh v. Superior Court, supra, 100 Cal.App.4th at p 498.) Rogers’ review of the competency evaluation reports constitutes an impermissible use of the fruits of defendant’s immunized statements.

Petitioner’s case stands in sharp contrast to the facts in Weaver. In Weaver, numerous experts gave admissible testimony on the subject of the defendant’s sanity in addition to the inadmissible testimony of two psychiatrists. Moreover, the inadmissible testimony of the two psychiatrists was not uniformly negative. One doctor concluded defendant suffered from “schizoid personality disorder” and the other testified defendant had “’extremely pathological family.’” (Weaver, supra, 26 Cal.4th at pp. 961-962.)

In this case, the prosecution’s expert witnesses gave uniformly negative testimony diagnosing defendant’s mental illness as malingering. Not one of the prosecution experts would concede defendant had schizophrenia or some other psychosis, an arguably untenable position in light of the testimony from petitioner’s treating physician and the evidence of petitioner’s repeated hospitalizations. At most, the prosecution experts would concede some type of a mental illness or personality disorder could not be ruled out, but only because defendant’s malingering made a definitive diagnosis difficult. Apparently, the fact petitioner did poorly when he had to communicate through interpreters may also have contributed to this difficulty.

Moreover, D’Angelo, petitioner’s own expert witness, had also been appointed under section 1369. His testimony at the sanity phase was consequently inadmissible, and it was not universally helpful to the defense. On the one hand, he reviewed petitioner’s medical history and interviewed petitioner’s various family members. Based on a comparison of petitioner’s medical history, his behavior a few days before the incident, and the facts of the crime, D’Angelo testified petitioner did not understand the nature of his actions or that what he did was wrong, and he opined petitioner was “decompensated.”

On the other hand, under cross-examination, D’Angelo became argumentative and nonresponsive. The court sustained several of the prosecutor’s objections on both grounds. D’Angelo admitted he did not review pertinent records, and he made several references to the inadmissible competency evaluation. At one point the prosecutor asked, “[I]sn’t it true that when you talked to the petitioner about the crime, that you also had the opinion that you didn’t know where his mental illness stopped and where his lying began?” D’Angelo replied, “That was during the . . . competency evaluation, I had difficulty with that, yes?” The prosecutor also elicited statements about the crime through D’Angelo’s testimony. D’Angelo testified petitioner consistently denied hitting Labord and claimed someone had vandalized his car. Thus, the testimony of petitioner’s own expert witness was both inadmissible and prejudicial.

The Attorney General contends Wallstrom’s testimony falls outside the Arcega rule because he was not appointed to evaluate defendant’s competency under section 1369. We disagree.

Defendant’s statements to Wallstrom occurred during interviews and testing conducted while defendant was an involuntary patient confined at Patton State Hospital pursuant to section 1370, subdivision (a)(1)(B)(i). We have found no published case refusing to extend Arcega’s judicially declared rule of immunity in competency proceedings to employees of health facilities charged with restoration of a criminal defendant’s competency under section 1370. In addition, the Attorney General submitted a declaration from Wallstrom in which he stated that his custom and practice is to advise patients that their participation at Patton State Hospital is voluntary, but that their interviews and test result will be documented and possibly subpoenaed by the court. Nevertheless, we are not persuaded this renders the proceedings at Patton State Hospital, or any other facility listed in statute, voluntary or outside the protection of the Fifth Amendment.

The purpose of section 1370, subdivision (a)(1)(B)(i) is the defendant’s “speedy restoration to mental competence” with the ultimate goal of a trial on the merits and a judgment. (§§ 1370.01, 1372.) Because a criminal trial looms at the end of the average defendant’s commitment, competency evaluators employed by mental health facilities, like Wallstrom, must be governed by the Arcega rule. The extension of the rule to these health care professionals is both necessary and logical for the same reasons the California Supreme Court adopted the rule in the first place, “to ensure that an accused is not convicted by used of his own statements made at a court-compelled examination . . . [to] foster[] honesty and lack of restraint on the accused’s part at the examination and thus promote[] accuracy in the psychiatric evaluation. Hence, the rule protects both an accused’s privilege against self-incrimination and the public policy of not trying persons who are mentally incompetent.” (People v. Arcega, supra, 32 Cal.3d at p. 522.) Therefore, we conclude Wallstrom’s testimony, like that of Sharma, Rogers and D’Angelo was inadmissible on the issue of petitioner’s sanity.

In Weaver, supra, 26 Cal.4th 876, the court concluded counsel’s failure to object did not result in prejudicial error. (Id. at p. 962.) The court observed, “[t]he scales were not closely balanced, as evidenced by the fact the jury took less than one hour to find defendant had failed to carry his burden of demonstrating he was insane at the time of the crimes.” (Id. at p. 961.) In petitioner’s case, the jury began its deliberations during the afternoon session on February 2, 2004. Within hours, it submitted a written request for a readback of the following testimony: (1) Dr. D’Angelo’s initial testimony on January 29; (2) Dr. Wallstrom’s initial testimony on January 29; and (3) the testimony given by Dr. Gomez on January 26. The next day, the jury submitted a request for all of Dr. D’Angelo’s testimony from January 29 and February 2. The jury deliberated all day February 4 and reached its verdict the following day.

In sum, the jury requested readbacks of the testimony of three important witnesses. Gomez, petitioner’s treating physician, who had testified during the guilt trial. D’Angelo, a defense expert witness at the sanity trial, whose testimony was inadmissible and not wholly beneficial to the defense. And, Wallstrom’s testimony, which was entirely detrimental to defendant’s case and also inadmissible. The Attorney General further argues petitioner suffered no prejudice from any of this inadmissible testimony because he did not make any statements about the facts of the crime. We are not convinced by this contention.

First, D’Angelo testified defendant consistently denied hitting Labord and claimed his car had been vandalized. Consequently, there was evidence concerning the crime from one of defendant’s competency evaluations introduced at trial. Second, while the basis for Arcega’s judicially declared rule of immunity in mental competency proceedings is the Fifth Amendment, its application is not limited to inculpatory statements about the facts of the crime. “The California rule of judicial immunity is broader than the federal rule for compliance with the Fifth and Sixth Amendments. [Citation.]” (Centeno v. Superior Court, supra, 117 Cal.App.4th at p. 42.) In fact, at the sanity trial, the underlying crime is relevant only in so far as it explains defendant’s ability to understand the nature and quality of his acts or distinguish right from wrong.

In People v. Jablonski (2006) 37 Cal.4th 774, the defendant argued the immunity in Arcega did not go far enough. He contended the prosecution could make “derivative uses” of his statements, which might include insight into defense trial strategy, the attorney-client relationship, or other matters helpful to the prosecution at trial. (Id. at p. 802.) The defendant’s concern for the “nonevidentiary” use of his statements could not have been based solely on inculpatory statements regarding the crime. In any event, the Jablonski court stated, “the immunity granted in Arcega fully protects a defendant against any nonevidentiary uses of statements obtained from the defendant during the competency hearing to the same extent he or she is protected by the privilege against self-incrimination.” (People v. Jablonski (2006) 37 Cal.4th 774, 803.)

The court in Tarantino, supra, 48 Cal.App.3d 465, acknowledged the practical effect on criminal proceedings of enforcing the judicially declared rule of immunity in competency proceedings. The court stated, “We recognize that this immunity normally will require that the psychiatrists appointed for examination under section 1367 et seq. be other than those appointed for inquiry under section 1026.” (Tarantino, supra, 48 Cal.App.3d at p. 470.) The rule is simple enough. “A psychiatrist appointed to examine a defendant for competency may not subsequently testify on the issues of the defendant’s guilt, sanity, or penalty. [Citation.]” (Centeno v. Superior Court, supra, 117 Cal.App.4th at p. 42.) The fruit of the defendant’s competency evaluations, i.e., the competency expert’s, impressions, reports or the results of the evaluator’s testing, are not to be made available to experts appointed to testify on the issues of the defendant’s guilt, sanity, or penalty.

In this case, despite abundant evidence of malingering, the jury believed the issue of petitioner’s sanity to be a close case. Because the jury considered this to be a close case notwithstanding the overwhelming amount of inadmissible and unfavorable evidence it considered, we conclude petitioner has met his burden of demonstrating a reasonable probability of a more favorable result absent counsel’s error. Thus, petitioner is entitled to a new trial on the issue of his sanity.

We have reviewed petitioner’s claims of error relating to the guilt trial and found none requiring a reversal of the guilt verdict. Therefore, a new trial on petitioner’s sanity may proceed without a new trial on the issue of his guilt. (People v. Marshall (1930) 209 Cal. 540, 547; People v. McGowan (1986) 182 Cal.App.3d 1, 20.) In addition, section 1026 permits the trial court to empanel a different jury to hear the new sanity trial. (People v. Nesler (1997) 16 Cal.4th 561, 590.)

III

DISPOSITION

The judgment is reversed. The case is remanded for a new trial solely on the question of petitioner’s sanity. The verdicts from the guilt trial remain in full force and effect pending the outcome of the sanity trial. Upon finality of this opinion, the clerk of this court shall submit a copy of this opinion to the State Bar of California. (Bus. & Prof. Code, § 6086.7, subd. (a)(2); In re Jones (1996) 13 Cal.4th 552, 589, fn.2.)

MOORE, J.

WE CONCUR:

O’LEARY, ACTING P. J.

IKOLA, J.

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