People v. Ary

• Decision Date: 20 May 2004
• Docket Number: No. A095433.,A095433.
• Citation: 118 Cal.App.4th 1016,13 Cal.Rptr.3d 482
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. James ARY, Jr., Defendant and Appellant.

13 Cal.Rptr.3d 482

118 Cal.App.4th 1016

The PEOPLE, Plaintiff and Respondent, v. James ARY, Jr., Defendant and Appellant.

No. A095433.

Court of Appeal, First District, Division 2.

May 20, 2004.

Review Denied August 18, 2004.^*

Martin N. Buchanan and James Kyle Gee, under appointment by the Court of Appeal under the First District Appellate Project Independent Case System, for Appellant.

Bill Lockyer, Attorney General, Robet R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, George F. Hindall, III, Assistant Supervising Deputy Attorney General, Joan Killeen, Deputy Attorney General, for Respondent.

HAERLE, J.

I. INTRODUCTION

James Ary, Jr. was convicted of first-degree murder (Pen.Code, § 187),¹ carjacking (§ 215), robbery (§ 211) and being a felon in possession of a firearm (§ 12021, subd. (a)(1)) The jury found true the special circumstances that the murder occurred during the commission of a carjacking, a robbery and while lying in wait. (§ 190.2, subds.(a)(15), (a)(17).) It also found true a firearm use allegation. (§ 12022.5, subd. (b)(1).) Ary was sentenced to life without parole and a consecutive, determinate sentence of 16 years and four months was also imposed.

During the trial, the lower court had before it substantial evidence that Ary, who is mentally retarded, was unable to understand the nature of the proceedings against him or to assist in his defense. The trial court's failure to order a competency hearing pursuant to section 1368 deprived Ary of his constitutional right to a fair trial. The matter is remanded to permit the trial court to consider, if the prosecution elects to so request, whether a retrospective competency hearing can be held.

II. FACTUAL AND PROCEDURAL BACKGROUND

Just before midnight on August 14, 1997, Ronnie Ortega, a native of Guatemala who worked as a chef at San Pablo Casino, was shot and killed while stopped at a stoplight at an intersection just off San Pablo Avenue. A witness to the shooting saw two teenagers at a bus stop near the intersection. He saw and heard an older man across the street from the teenagers yelling to them that he "wanted to get a Cadillac." The witness identified defendant as the older man he saw. He also identified defendant as the person who shot Ronnie Ortega at the stoplight.

Several days after the murder, acting on tips received, the police interviewed a fifteen-year-old named Darius Mason. Mason told the police that defendant shot Ortega. Mason said he and a friend, Worsten Andrews, had talked to defendant about getting a car to do some robberies, but that they had merely witnessed Ortega's shooting.

On August 17, police officers arrested defendant. Andrews was also arrested. In an interview with the police, Andrews, like Mason, also said that defendant was the person who shot Ortega. Andrews explained that he, Mason and defendant planned to commit a carjacking and as they were walking, defendant became separated from them. When Ortega's car pulled up at a traffic light, defendant went to the side of the car and shot at it.

Defendant subsequently waived his Miranda rights and confessed to Ortega's murder. In July and August 1999, the court held two hearings on a motion to suppress defendant's confession. Defendant contended he had not knowingly and voluntarily waived his Miranda rights and that his confession was coerced. The matter was then continued for a lengthy period of time and, in April, May and June 2000, the court heard the remainder of the evidence regarding whether defendant's waiver was valid and his confession voluntary. At these hearings, which consumed the majority of seven court days, the trial court was presented with extensive testimony regarding defendant's mental retardation.

At the conclusion of these hearings, the trial court found defendant's waiver of his Miranda rights was knowing and voluntary. However, the court found that defendant's confession was not voluntary and suppressed evidence of it. The trial court explained its ruling: "When you put that altogether, given this defendant's cognitive ability — Believe me, he knew what he was doing in waiving his rights. I have no problem with that. He ain't the brightest bulb either. He definitely has some deficits. I think that in conjunction with the way [the police officers] did this interview, put it in such a scenario that he had no choice but to shut up, get the worst-case scenario which was going to be premeditated murder or to say something. He elected to say something. [¶] I find that the statement he gave was coerced. It is improper and cannot be used for any purpose...."

A jury trial commenced on September 13, 2000. On December 11, 2000, the jury found defendant guilty of first-degree murder, carjacking, robbery and of being a felon in possession of a firearm. The jury found true three special circumstances and a firearm use allegation. Defendant was acquitted of two counts involving a separate attempted carjacking incident.

The prosecution sought the death penalty. The jury deadlocked in the penalty phase and, on January 24, 2001, the court declared a mistrial. The prosecution elected not to retry the penalty phase. On June 14, 2001, the trial court sentenced defendant to life without parole and imposed a consecutive, determinate sentence of 16 years and four months.

This timely appeal followed.

III. DISCUSSION

A. Competency Hearing

Defendant contends he was denied due process under Pate v. Robinson (1966) 383 U.S. 375, 377, 86 S.Ct. 836, 15 L.Ed.2d 815 (Pate) and People v. Pennington (1967) 66 Cal.2d 508, 58 Cal.Rptr. 374, 426 P.2d 942 (Pennington), because the trial court did not order a competency hearing despite substantial evidence that, due to his mental retardation, he was incapable of understanding the nature of the proceedings against him and of assisting in his defense. We agree.

"It has long been established that the conviction of an accused person while he is legally incompetent violates due process. (Pate, supra, 383 U.S. at p. 377, 86 S.Ct. 836.) Indeed, the United States Supreme Court has held that the failure of a trial court to employ procedures to protect against trial of an incompetent defendant deprives the defendant of his due process right to a fair trial and requires reversal of his conviction. (Ibid. [fn. omitted]; Drope v. Missouri (1975) 420 U.S. 162, 171 [95 S.Ct. 896, 43 L.Ed.2d 103].)" (People v. Hale (1988) 44 Cal.3d 531, 539-540, 244 Cal.Rptr. 114, 749 P.2d 769.) These constitutional protections are codified in sections 1367 et seq.

Section 1367, subdivision (a), provides that a defendant is mentally incompetent to stand trial when, "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 matter." Mental retardation is defined as a developmental disability. (§ 1370.1, subd. (a)(1)(H).) A court is required to hold a competency hearing when substantial evidence of the accused's incompetence has been introduced. (People v. Stankewitz (1982) 32 Cal.3d 80, 91-92, 184 Cal.Rptr. 611, 648 P.2d 578; People v. Laudermilk (1967) 67 Cal.2d 272, 283, 61 Cal.Rptr. 644, 431 P.2d 228.) Evidence is substantial if it raises a reasonable doubt as to the defendant's competence to stand trial. (§ 1368; People v. Jones (1991) 53 Cal.3d 1115, 1152, 282 Cal.Rptr. 465, 811 P.2d 757.)

Once the evidence raises such a reasonable doubt, the trial court is required to, "on its own motion, suspend proceedings in the case until the question is determined in a sanity hearing." (People v. Tomas (1977) 74 Cal.App.3d 75, 88, 141 Cal.Rptr. 453.) The consequence of the court's failure to order such a hearing in the face of such substantial evidence is severe: "Under section 1368 of the Penal Code the trial court has no power to proceed with the trial once a doubt arises as to the sanity of the defendant. In trying defendant without first determining at a hearing his competence to stand trial, the court both denie[s] to defendant a substantial right [citations] and pronounce[s] judgment on him without jurisdiction to do so. In such cases the error is per se prejudicial." (Pennington, supra, 66 Cal.2d at p. 521, 58 Cal.Rptr. 374, 426 P.2d 942.) "Indeed, once a doubt has arisen as to the competence of the defendant to stand trial, the trial court has no jurisdiction to proceed with the case against the defendant without first determining his competence in a section 1368 hearing, and the matter cannot be waived by defendant or his counsel. (Pennington, supra, 66 Cal.2d at p. 518 [58 Cal.Rptr. 374, 426 P.2d 942]; In re Davis (1973) 8 Cal.3d 798, 808 [106 Cal.Rptr. 178, 505 P.2d 1018].)" (People v. Hale, supra, 44 Cal.3d at p. 541, 244 Cal.Rptr. 114, 749 P.2d 769; see also People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 69, 2 Cal.Rptr.2d 389, 820 P.2d 613 (Marks).)

Importantly, we are not deciding here whether defendant is, in fact, competent to stand trial, but whether there was evidence sufficient to raise a reasonable doubt as to defendant's competence to stand trial. We conclude there was.

A significant pretrial issue in this matter was whether defendant knowingly and voluntarily waived his Miranda rights and whether his subsequent confession to Ortega's murder was voluntary. The defense contended that defendant's mental retardation made him incapable of understanding his rights and made the tactics used during his interrogation coercive.

During the pretrial proceedings on this issue, Dr. Timothy Derning, a forensic psychologist and expert in neurocognitive deficits related to intellectual functioning, testified for the defense. Based on information about defendant's family and education, interviews with defendant and the results of a variety of psychological tests, Derning concluded that defendant had a "severe mental impairment" that met the ...