People v. Kirvin

• Decision Date: 04 December 2014
• Docket Number: B246329
• Citation: 180 Cal.Rptr.3d 902,231 Cal.App.4th 1507
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Charles KIRVIN, Defendant and Appellant.

231 Cal.App.4th 1507

180 Cal.Rptr.3d 902

The PEOPLE, Plaintiff and Respondent

v.Charles KIRVIN, Defendant and Appellant.

B246329

Court of Appeal, Second District, Division 2, California.

Filed December 4, 2014

Caroline R. Hahn, Santa Ana, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney General, James William Bilderback II and Brendan Sullivan, Deputy Attorneys General, for Plaintiff and Respondent.

Opinion

HOFFSTADT, J.

Does a trial court abuse its discretion in denying a criminal defendant the right to represent himself when he has repeatedly refused to come to court and be interviewed by a court-appointed mental health expert? Is a defendant who makes six separate telephone calls urging a relative to persuade the prosecution's chief witness not to testify at trial entitled, under People v. Bailey (1961) 55 Cal.2d 514 [11 Cal.Rptr. 543, 360 P.2d 39] , to dismissal of all but one of his six convictions for attempting to dissuade a witness? The answer to both questions is no, and we affirm defendant Charles Kirvin's convictions and, with one small correction, the 26–year prison sentence imposed in this case.

FACTS AND PROCEDURAL HISTORY

I. Offense Conduct

Al Jesse Cambell (Cambell) was driving defendant Charles Kirvin (Defendant) and others from Palmdale to Inglewood, California. Defendant and Cambell were dating. Upset with how Cambell was eating candy, Defendant punched her in the right eye so hard it bled. Defendant told Cambell he would hurt her family if she told anyone who hit her; he subsequently drove her to a nearby police station and hospital where she reported that she was hit by a stranger trying to rob her.

A few days later, Defendant grabbed Cambell's arm roughly after she rebuffed his sexual advances; her arm bruised

. When the police arrived, they noticed Cambell's still swollen eye and she told them the truth about the prior incident. Defendant was arrested.

Defendant thereafter made several calls from jail urging his sister and others to get Cambell “not to come to court.” Six of these calls were made to Defendant's sister on the same day.

II. Procedural History

The People charged Defendant with corporal injury to a cohabitant (Pen. Code, § 273.5, subd. (a) ),¹ assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)), and dissuading a witness by force or threat (§ 136.1, subd. (c)(1)) for Defendant's actions in the car; with corporal injury to a cohabitant (§ 273.5, subd. (a) ) for grabbing Cambell's arm a few days later; and with 11 counts of attempting to dissuade a witness (§ 136.1, subd. (b)(2)) for the calls from jail. The People also alleged Defendant's 2002 prior conviction for battery involving serious bodily injury as a “strike” (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), and as a prior “serious felony” (§ 667, subd. (a)(1)); the People further alleged three prior prison sentences (§ 667.5, subd. (b)).

Prior to trial, Defendant expressed dissatisfaction with his appointed counsel and the trial court held a hearing with Defendant and his lawyer, pursuant to People v. Marsden (1970) 2 Cal.3d 118 [84 Cal.Rptr. 156, 465 P.2d 44] (Marsden ). At that hearing, Defendant complained that his attorney was not moving the case forward fast enough, and was too willing to “waive time.” Defendant also stated that he was seeing “mental images” “in his head” of his lawyer “flip[ping] [him] off.” The trial court found no basis to appoint new counsel, but declared a doubt about Defendant's competence, suspended the criminal proceedings under section 1368, and appointed two mental health experts to examine Defendant.

After examining Defendant, each expert reported that Defendant had first “hear[d] voices” 18 years earlier, had since been on and off various medications, and had never been hospitalized for any mental issues. Both experts further opined that Defendant understood the charges against him, the role of the court officers, and what was at stake. They differed in their opinion of whether Defendant could assist his counsel: Dr. Stephen Wilson thought Defendant could not, while Dr. Kory Knapke thought he could. The court appointed a third expert to evaluate Defendant, but Defendant refused to meet with him on two separate occasions. The third expert informed the court that he could not render a “direct opinion” without interviewing Defendant, but remarked that the “available information”—namely, the documents available to the expert as well as Defendant's custodial placement outside the psychiatric unit—indicated that Defendant had not overcome the presumption of competency.

After the parties submitted the issue of competency on the reports, the court ruled that Defendant had not rebutted the statutory presumption of competency. The court cited the absence of any “indication at all that [Defendant] is suffering from any type of mental illness”; the fact that Defendant was not being housed in the mental health unit of the jail; and the concurrence of the two examining experts that “Defendant has a rational, factual understanding of the charges and the nature and purposes of the proceedings.” In accord with Dr. Knapke's opinion, the court concluded that Defendant was “able to comprehend his own status and condition in reference to such proceedings and ... is able to assist counsel in conducting his defense.”

At that point, Defendant renewed his earlier request to represent himself, which the trial court had initially postponed until Defendant's competency was determined. The court denied Defendant's request on two grounds. First, the court pointed to Defendant's refusal to leave his cell that morning, and his earlier refusal to meet with the third mental health expert. As the court saw it, Defendant was “playing games,” and Defendant's “actions in refusing to come to court and cooperate with doctors appointed by the court are disruptive, obstreperous, disobedient and disrespectful to the court, and his misconduct and its impact ... affect the integrity of the trial court.” Second, the court, citing Indiana v. Edwards (2008) 554 U.S. 164,

[128 S.Ct. 2379, 171 L.Ed.2d 345]

(Edwards ), noted Defendant, while competent to stand trial, lacked the competency to represent himself.

Defendant immediately exercised a peremptory challenge against the judge under Code of Civil Procedure section 170.6 , and a new judge was assigned. Defendant again moved to disqualify his appointed counsel and to represent himself. The court conducted a second Marsden hearing, and found no basis upon which to appoint new counsel. The court also denied Defendant's request to represent himself due to (1) Defendant's repeated refusals to come to court and meet with the court-appointed expert and (2) his misconduct in jail (namely, throwing urine and feces). The court found the sum total of Defendant's behavior to be “disruptive to the fundamental operations of the judicial system.”

The case proceeded to trial. The trial court dismissed one of the witness dissuasion counts for insufficient evidence and, in lieu of dismissing the two corporal injury against a cohabitant counts (due to lack of evidence of cohabitation), permitted the People to substitute two counts of misdemeanor battery in a dating relationship (§ 243, subd. (e)(1)). The jury acquitted Defendant of one other witness dissuasion count, but convicted Defendant of the remaining counts. Defendant admitted his prior convictions, and the Court imposed a prison sentence of 26 years, as well as a $200 domestic violence restitution fine under section 1203.097.

DISCUSSION

I. Competency

A criminal defendant may not be tried or convicted while mentally incompetent. (People v. Sattiewhite (2014) 59 Cal.4th 446, 464 [174 Cal.Rptr.3d 1, 328 P.3d 1] ; Pate v. Robinson (1966) 383 U.S. 375, 384–386 [86 S.Ct. 836, 15 L.Ed.2d 815] .) For these purposes, a defendant is mentally incompetent if he (1) “ ‘ “lacks a ‘ “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding” ’ ” ' ”; or (2) lacks “ ‘ “ ‘ “a rational as well as a factual understanding of the proceedings against him.” ’ ” ' ” (Sattiewhite, supra, 59 Cal.4th at p. 464, 174 Cal.Rptr.3d 1, 328 P.3d 1 , quoting Dusky v. United States (1960) 362 U.S. 402, 402 [80 S.Ct. 788, 4 L.Ed.2d 824] .) Whenever substantial evidence raises a reasonable doubt regarding the defendant's competence, a court is required to suspend the criminal proceedings and conduct a full competency trial. (§ 1368, subds. (a), (b); People v. Lightsey (2012) 54 Cal.4th 668, 691 [143 Cal.Rptr.3d 589, 279 P.3d 1072] .) At that trial, the defendant is rebuttably presumed to be competent. (§ 1369, subd. (f).) The defendant consequently bears the burden of proving his incompetency by a preponderance of the evidence. ( People v. Blacksher (2011) 52 Cal.4th 769, 797 [130 Cal.Rptr.3d 191, 259 P.3d 370] (Blacksher ).) We review a trial court's determination of competency for substantial evidence, viewing the evidence in the light most favorable to that determination. (Id. at p. 798, 130 Cal.Rptr.3d 191, 259 P.3d 370; People v. Poe (1999) 74 Cal.App.4th 826, 831 (Poe ).)

Defendant contends that the trial court's competency determination is not supported by substantial evidence because (1) Dr. Wilson found him unable to assist in his own defense and (2) the trial court should not have relied upon (a) the opinion of the third expert who never interviewed him or (b) the jail officials' decision not to place him in a mental health unit.

As a threshold matter, we reject the People's argument that Defendant, by “submitting” the matter to the trial court on the basis of the experts' reports, thereby forfeited his right to challenge that ruling on appeal. To be sure, defendants may not attack the validity of expert reports to which they submit with arguments they did not present to the trial court. (Blacksher, supra, 52 Cal.4th at...