People v. Ary, No. A113020.

CourtCalifornia Court of Appeals
Writing for the CourtKline
Citation173 Cal.App.4th 80,92 Cal. Rptr. 3d 473
PartiesTHE PEOPLE, Plaintiff and Respondent, v. JAMES ARY, JR., Defendant and Appellant.
Decision Date20 April 2009
Docket NumberNo. A113020.
173 Cal.App.4th 80
92 Cal. Rptr. 3d 473
THE PEOPLE, Plaintiff and Respondent,
v.
JAMES ARY, JR., Defendant and Appellant.
No. A113020.
Court of Appeals of California, First District, Division Two.
April 20, 2009.

[173 Cal.App.4th 82]

James Kyle Gee, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Rene A. Chacon and Joan Killeen, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

KLINE, P. J.—


INTRODUCTION

In People v. Ary (2004) 118 Cal.App.4th 1016 [13 Cal.Rptr.3d 482] (Ary), we determined that defendant was denied his due process right to a fair trial

173 Cal.App.4th 83

under Pate v. Robinson (1966) 383 U.S. 375 [15 L.Ed.2d 815, 86 S.Ct. 836] (Pate) and People v. Pennington (1967) 66 Cal.2d 508 [58 Cal.Rptr. 374, 426 P.2d 942], because the trial court did not, on its own motion, order a hearing under Penal Code section 13681 to examine defendant's competency to stand trial 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. (Ary, at pp. 1020-1021.) Considering the "highly unusual nature of this case"—due to the current availability of medical evidence of appellant's mental state at the time of trial produced during an inquiry into the voluntariness of his confession—we concluded that this may be the "rare case" in which a meaningful competency determination may be conducted retrospectively (id. at pp. 1028-1029), and remanded the matter to the trial court to consider whether such a hearing could be conducted (id. at pp. 1029-1030). The trial court determined such a hearing was feasible. After conducting a competency hearing, the court found that defendant failed to prove, by a preponderance of the evidence, that he was incompetent to stand trial.

On this appeal, defendant contends that the trial court erred in placing on him the burden of showing that he was incompetent when tried and convicted. We agree.

(1) As we shall explain, the presumption of competency created by the Penal Code (§ 1369, subd. (f)) was designed to apply only to competency hearings conducted during the pendency of a criminal action, not to a postsentencing hearing conducted nunc pro tunc after a Pate violation. Because the fundamental fairness implicit in the concept of due process creates a rebuttable presumption of incompetency upon the vindication of a Pate claim, the burden at a retrospective hearing lies with the prosecution to show by a preponderance of the evidence that the defendant was competent to stand trial at the time he was tried. Accordingly, we shall vacate the finding of competency and remand the matter to the trial court to evaluate the evidence under the proper standard.

FACTUAL AND PROCEDURAL BACKGROUND

As the issues in this case do not turn on the underlying facts, we summarize them only briefly.

In December 2000, defendant was convicted of first degree murder, carjacking, robbery and being a felon in possession of a firearm. The jury also found true three special circumstances and a firearm use allegation. Defendant was subsequently sentenced to life without possibility of parole as well as

173 Cal.App.4th 84

a consecutive, determinate sentence of 16 years four months. (Ary, supra, 118 Cal.App.4th at pp. 1019-1020.)

At pretrial hearings on the issue of whether defendant knowingly and voluntarily waived his Miranda rights and whether his subsequent confession to the murder charge was voluntary, the court received extensive evidence of defendant's mental state. It was this evidence that led us to determine the court erred in not holding a competency hearing. (Ary, supra, 118 Cal.App.4th at p. 1025.) In remanding the case for a determination of the feasibility of a retrospective competency hearing, we stated that "in those rare circumstances in which an appellate court remands for a determination of whether such a hearing can be held, the People must still convince the trial court that there is sufficient evidence on which a `reasonable psychiatric judgment' of defendant's competence to stand trial can be reached. [Citation.]" (Id. at p. 1029.) We declined to impose, as defendant urged us to do, a "`beyond a reasonable doubt' standard of evidentiary proof on the People as to this threshold matter."2 (Ibid.)

On July 16, 2004, the court received evidence from the People regarding the feasibility of holding such a hearing, including a declaration of Dr. Howard Friedman, who had testified at defendant's trial. Defense counsel, who had also contacted several doctors who had testified at defendant's trial and believed they could offer an opinion retrospectively regarding his competence at that time, concurred "that sufficient evidence was available to render a reasonable psychiatric judgment of defendant's competence to stand trial." Accordingly, the court ruled on July 19, 2004, that the prosecution had met its burden and ordered a retrospective competency hearing.

In allocating the burden of proof at the retrospective competency hearing, the trial court initially declined to impose on defendant the presumption of competency prescribed at a section 1368 hearing by section 1369, subdivision (f), taking the position that the People would have the burden of proving by a preponderance of the evidence that defendant was competent at the time of trial, after which the burden would shift to defendant to establish pursuant to the same standard that he was not then competent to stand trial. After the People filed a motion for reconsideration challenging this allocation of the burden of proof, the court changed its mind. Ruling that section 1369, subdivision (f) applied, the court determined that defendant had the burden of showing incompetence by a preponderance of the evidence, and the People bear no burden at all.

After discovery was conducted, a retrospective competency hearing was held beginning on October 31, 2005, and concluding on November 8, 2005.

173 Cal.App.4th 85

Amy Morton, who was lead counsel for defendant at trial testified that although she had previously represented clients she suspected were not competent, none were mentally retarded or suffered a developmental disability and she had never requested or participated in a competency hearing under section 1368. Morton was brought into the case at a time when Linsey Freeman was lead defense counsel, and he told her that the defense strategy was to focus on the penalty not the guilt phase of trial, as there was "nothing going on" with respect to the issue of guilt. At that time Atkins v. Virginia (2002) 536 U.S. 304 [153 L.Ed.2d 335, 122 S.Ct. 2242], which presented the question whether a mentally retarded person could be subjected to the death penalty, was pending in lower federal courts, which is why the defense sought experts who specialized in mental retardation. Initially, Ms. Morton's role was to be confined to the guilt phase, and Freeman would handle the penalty phase, for which Freeman had created a "mental health team" of experts. On the few occasions during this period that Morton spoke with defendant she was unable to carry on a conversation with him, but felt he understood her.

In August of 1999, Freeman stepped down due to a perceived conflict of interest. Because the case was "old" and the trial judge was pushing for trial to begin, the presiding judge asked Morton whether she felt able to accept the role of lead counsel. She said she was and accepted the responsibility to find experienced cocounsel "who knew how to do penalty phases and handle mitigation evidence because I did not." John Costain was later brought into the case to play that role, which included working with the mental health experts.3 At that time there was a consensus among the defense lawyers that defendant would not testify at the guilt phase. Morton reconsidered this issue because she felt defendant may have honestly and reasonably believed the victim had a gun, but this defense could not effectively be used unless defendant testified. However, when Morton and others working with her asked him about events relating to the offense defendant often did not understand their questions and was "[c]onstantly" unable to recall what had happened. Defendant was unwilling to testify due to his failure to understand what difference it would make and because he was not "good with words."

173 Cal.App.4th 86

Everyone on the defense team felt defendant was mentally retarded and had serious learning disabilities. Morton did not know whether any of the experts consulted by the defense team had evaluated defendant's competency to stand trial, but "assumed he had been put through an evaluation because it was never raised." Freeman had given Morton materials on mental retardation, but she had only "skimmed through it." Dr. Timothy Derning, one of the experts retained by the defense, told Morton that the fact that defendant was incompetent to enter pleas to his prior offenses did not mean he was incompetent to stand trial at the time he was convicted of the present offense. Morton had not been trained in the assessment of competency to stand trial at the time she represented defendant, and had a limited understanding of the legal formulation of competency set forth in Dusky v. United States (1960) 362 U.S. 402 [4 L.Ed.2d 824, 80 S.Ct. 788], which she did not then understand to include developmental disability. Having since "taken classes" and "read the case law," Morton now believes defendant was incompetent to stand trial at the time he was convicted.

Forensic psychologists Timothy Derning and John Podboy also testified for the defense; both had evaluated defendant's mental state as it related to the voluntariness of his confession. Dr. Derning explained that, because mentally...

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3 practice notes
  • Fredrick Jones Jr v. Mcdonald, No. 1:10-cv—000 68-AWI-SKO-HC
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • February 24, 2011
    ...In the tenth claim, Petitioner alleges that the lower courts overlooked Petitioner's claim pursuant to People v. James Ary, Jr., 173 Cal.App.4th 80 (2009). (Pet. 13.) Review has been granted in that case, which is now depublished. The case concerned the burden of proof in retrospective comp......
  • People v. Robinson, C058491 (Cal. App. 10/5/2009), C058491.
    • United States
    • California Court of Appeals
    • October 5, 2009
    ...hearing. Penal Code section 1369, subdivision (f) creates a presumption of competence.1 Defendant, relying on People v. Ary (2009) 173 Cal.App.4th 80 (Ary II),2 contends that presumption does not apply at a retrospective competency We need not determine whether we agree with the majority in......
  • Jones v. McDonald, 1:10-cv—000 68-AWI-SKO-HC
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • September 11, 2011
    ...prosecution; and 9) Petitioner's tenth claim that the lower courts overlooked Petitioner's claim pursuant to People v. James Ary, Jr., 173 Cal.App.4th 80 (2009). In the findings and recommendations, the Magistrate Judge recommended that the Court grant Petitioner thirty (30) days to file a ......
3 cases
  • Fredrick Jones Jr v. Mcdonald, No. 1:10-cv—000 68-AWI-SKO-HC
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • February 24, 2011
    ...In the tenth claim, Petitioner alleges that the lower courts overlooked Petitioner's claim pursuant to People v. James Ary, Jr., 173 Cal.App.4th 80 (2009). (Pet. 13.) Review has been granted in that case, which is now depublished. The case concerned the burden of proof in retrospective comp......
  • People v. Robinson, C058491 (Cal. App. 10/5/2009), C058491.
    • United States
    • California Court of Appeals
    • October 5, 2009
    ...hearing. Penal Code section 1369, subdivision (f) creates a presumption of competence.1 Defendant, relying on People v. Ary (2009) 173 Cal.App.4th 80 (Ary II),2 contends that presumption does not apply at a retrospective competency We need not determine whether we agree with the majority in......
  • Jones v. McDonald, 1:10-cv—000 68-AWI-SKO-HC
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • September 11, 2011
    ...prosecution; and 9) Petitioner's tenth claim that the lower courts overlooked Petitioner's claim pursuant to People v. James Ary, Jr., 173 Cal.App.4th 80 (2009). In the findings and recommendations, the Magistrate Judge recommended that the Court grant Petitioner thirty (30) days to file a ......

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