People v. Burns
| Decision Date | 29 September 2021 |
| Docket Number | F078505 |
| Court | California Court of Appeals Court of Appeals |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. KENNETH DWAYNE BURNS, Defendant and Appellant. |
NOT TO BE PUBLISHED
Order Filed Date 10/25/2021
APPEAL from a judgment of the Superior Court of Kern County No BF165297A. Stephen D. Schuett and Barbara A. Lane, Judges. [†]
C Athena Roussos, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters Chief Assistant Attorney General, Michael P. Farrell Assistant Attorney General, Louis M. Vasquez, Doris A. Calandra, William K. Kim, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
It is ordered that the opinion filed herein on September 29, 2021, be modified as follows:
1. On page 25, footnote 6, beginning "We disagree with" is deleted and the following footnote is inserted in its place:
6 The judicial immunity accorded to defendant's statements to a competency expert will normally require that experts appointed for competency examinations not testify at trial regarding any mental issue. (See Tarantino v. Superior Court, supra, 48 Cal.App.3d at p. 470.) Hernandez extended this rule to bar testimony from any expert who has reviewed the "fruit of [ ] defendant's competency evaluation," including reports. (Hernandez, supra, 143 Cal.App.4th at p. 477.) While this may be the practical result in most cases, as we discuss below, we disagree with Hernandez to the extent it can be read as holding that the Fifth Amendment requires exclusion of testimony by any expert who has been exposed to defendant's competency statements or the fruit of those statements.
2. At the end of the first paragraph on page 28, after the sentence ending "therein as a basis for his opinion or testimony," add as footnote 8 the following footnote, which will require renumbering of all subsequent footnotes:
8 We are not persuaded by defendant's argument that Dr. Longwith's expert opinion "used" the competency report just by discussing it within his own report.
There is no change in the judgment. Except for the modifications set forth, the opinion previously filed remains unchanged.
Appellant's petition for rehearing filed on October 14, 2021, is denied.
Defendant Kenneth Dwayne Burns robbed a bank in 2016. After the trial court denied his motion to quash the search warrant and suppress evidence, defendant stipulated to the amended information charging him with robbery, false imprisonment, evading the police, and various felony enhancements. The court found defendant guilty after a court trial. During the sanity phase of his trial, defendant moved to exclude the testimony of the prosecution's sanity expert who had reviewed defendant's mental competency report prepared earlier in the proceedings. The trial court denied the motion and ultimately found defendant sane at the time of the offenses. Denying probation, the trial court sentenced defendant to 50 years to life, plus 22 years, including four separate five-year prior serious felony conviction enhancements under Penal Code section 667, subdivision (a)(1)[1] and two 1-year prior prison term enhancements under section 667.5, subdivision (b).
Defendant raises the following issues: (1) the trial court erred in denying his motion to suppress evidence seized pursuant to a warrant issued based upon an affidavit that failed to establish probable cause; (2) the trial court erred during his trial's sanity phase by admitting testimony from the expert who reviewed defendant's mental competency examination report, thereby permitting use of his immunized statements in violation of the Fifth Amendment; (3) the trial court erred in enhancing his sentence based on two prior serious felony convictions that had not been brought and tried separately pursuant to section 667, subdivision (a)(1); (4) we should remand to permit the trial court to consider whether to strike his prior serious felony conviction enhancements in light of Senate Bill No. 1393; (5) we should strike the robbery fine (§ 1202.5), the court operations assessment (§ 1465.8), and the court facilities assessments (Gov. Code, § 70373) because the trial court imposed them without considering his ability to pay, and we should remand for the trial court to determine whether he had the ability to pay the $300 minimum restitution fine (§ 1202.4); (6) even though section 1001.36 was in effect at the time he was sentenced, it applies retroactively to his case and requires remand or, in the alternative, his counsel was ineffective in failing to request mental health pretrial diversion; (7) we should remand to permit the trial court to strike the one-year prior prison term enhancement under section 667.5, subdivision (b) considering Senate Bill No. 136.
The People concede the issues relating to enhancements for prior convictions and, because such concessions will result in remand for resentencing, agree defendant should be permitted to request that the trial court consider his ability to pay before imposing any fines, fees, or assessments. The People defend the trial court's decision to deny defendant's motions to suppress and to exclude testimony and argue that defendant forfeited his claim regarding the failure to request mental health pretrial diversion.
We agree with the People's positions, except for one concession. Ultimately, we remand the matter to the trial court to (1) strike two prior serious felony conviction enhancements for convictions not brought and tried separately pursuant to section 667, subdivision (a)(1); (2) consider whether to strike defendant's prior serious felony conviction enhancements in light of Senate Bill No. 1393; and (3) strike one of the one-year prior prison term enhancements under section 667.5, subdivision (b).[2] We affirm the judgment in all other respects.
Originally charged by complaint, defendant was held to answer after his preliminary hearing on September 2, 2016. The Kern County District Attorney filed an information charging defendant with robbery (§ 212.5, subd. (c); count 1), false imprisonment with force (§§ 236, 237, subd. (a); count 2), and misdemeanor resisting arrest (§ 148, subd. (a)(1); count 3). As to counts 1 and 2, the information alleged four prior "strike" convictions within the meaning of the "Three Strikes" law (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)), and two prior prison terms (§ 667.5, subd. (b)). As to count 1, the information alleged four prior serious felony convictions (§ 667, subd. (a)(1)). Defendant pled not guilty to the charges and denied all allegations in the information.
On September 15, 2017, upon motion of defense counsel, the trial court suspended criminal proceedings and appointed Dr. Dean Haddock to determine defendant's competency to stand trial pursuant to section 1368. On October 6, 2017, the court received the report of Dr. Haddock, found defendant competent to stand trial, and reinstated criminal proceedings.
Thereafter, on November 17, 2017, defendant entered an additional plea of not guilty by reason of insanity. The court appointed Dr. Thomas Middleton and Dr. Gary Longwith to examine defendant.
Defendant moved to quash the search warrant and to suppress evidence on April 3, 2018. The prosecution filed a written opposition. The court heard and denied the motion on April 12, 2018.
The guilt phase of defendant's trial commenced on October 9, 2018. The trial court accepted defendant's stipulation to all allegations in the amended information[3] after defendant waived his constitutional trial rights. As a result, defendant agreed that on August 19, 2016, he (1) willfully and unlawfully took personal property in the possession of another, from his or her person or immediate presence and against his or her will by means of force and violence; (2) willfully and unlawfully violated the personal liberty of another by violence, menace, fraud or deceit; and (3) willfully and unlawfully resisted, delayed, or obstructed a peace officer who was discharging his or her duty. Defendant also stipulated to all special allegations, and no evidence was otherwise presented in the guilt phase of the trial. The sanity phase of the court trial was rescheduled to October 16, 2018.
At the sanity phase of the trial on October 16, 2018, defendant presented the testimony of Dr. Thomas Middleton, who attested that defendant was insane at the time of the offenses. Defendant offered no additional evidence.
The following day, the court conducted a hearing pursuant to Evidence Code section 402 to address defendant's motion to exclude Dr. Longwith from testifying at the sanity phase of the trial. Defendant had filed a motion on October 9, 2018, to exclude Dr. Longwith's testimony because the doctor had reviewed Dr. Haddock's competency report and defendant's immunized statements made in competency proceedings. The prosecution filed its opposition on October 15, 2018. The court denied the motion after hearing testimony from Dr. Longwith.
The sanity phase of the court trial continued with Dr. Longwith's testimony that defendant was sane at the time of the offenses and testimony from other prosecution witnesses. The court found that defendant was sane at the time of the offenses, adjudged him guilty on all counts, and found the special allegations to be true.
On November 28, 2018, the trial court sentenced defendant to a total term of 50 years to life, plus 22 years, including four separate five-year prior serious felony conviction enhancements (§...
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