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People v. Ary

April 20, 2009


(Contra Costa County Super. Ct. No. 5-980575-5). Trial Judge: Hon. Garrett J. Grant.

The opinion of the court was delivered by: Kline, P.J.



In People v. Ary ( 2004) 118 Cal.App.4th 1016 (Ary), we determined that defendant was denied his due process right to a fair trial under Pate v. Robinson (1966) 383 U.S. 375 (Pate) and People v. Pennington (1967) 66 Cal.2d 508, because the trial court did not, on its own motion, order a hearing under Penal Code section 1368*fn1 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.

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 post-sentencing 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.


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 a consecutive, determinate sentence of 16 years and 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."*fn2 (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.

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, 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 co-counsel "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.*fn3 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."

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, 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 retarded and developmentally disabled persons are better able to "mask" their deficiencies than psychotics, their competence is more difficult to evaluate and must be assessed in a more sophisticated manner, with greater emphasis on language, memory, cognitive functioning, and problem-solving. Dr. Derning interviewed defendant four times prior to trial and subjected him to tests designed to evaluate his abstract reasoning skills, recall, use of language, and vocabulary. Based on his clinical interviews, the tests he administered, and his observations of defendant's interactions with defense counsel, Dr. Derning concluded that defendant suffered significant cognitive impairment and that his mental functioning "was typical of people with mental retardation," a conclusion shared by experts at the East Bay Regional Center. Defendant "rarely, if ever," correctly answered specific questions about his case and "demonstrated that he didn't understand what was going on." Although Dr. Derning did not at the time of trial "administer any tests specifically designed to measure [defendant's] trial competency," which is governed by criteria different from those applicable to the voluntariness of a confession,*fn4 he concluded that defendant was incompetent due to his "low functioning, low adaptive skills, [and] poor reasoning abilities," which rendered him unable "to think hypothetically," to "follow the give and take in the courtroom," and to understand questions put to him regarding his case. He would have given this opinion at the time of defendant's trial in 2000, had he been asked.

Dr. Podboy, who examined defendant on four occasions at or about the time of trial, had assessed competence to stand trial more than a thousand times and frequently qualified as an expert on trial competence related to mental retardation. Dr. Podboy's conclusion that defendant was "obviously not competent" to stand trial was primarily based on "factual criteria" relating to his ability to understand "the roles and responsibilities of the various court officers, including the role of the jury," his poor language skills, and his inability to understand the nature of the defenses to be presented and otherwise assist counsel. According to Dr. Podboy, defendant "did not know the function of court participants and could not meaningfully participate in his trial. He could not assist in defenses. . . . Neither attorney [representing defendant in 2000] asked nor did he [then] give an opinion regarding [defendant's] competency to stand trial."*fn5

The People relied on the testimony of four forensic psychologists, Drs. Good, Hyman, Friedman, and Berg, none of whom had examined defendant at the time of trial.

Dr. Good interviewed defendant to determine his current competency and found him mildly mentally retarded. In Good's opinion, mild mental retardation does not mean that a defendant is incompetent. Based on his interviews with defendant, the tests he conducted, and his review of the trial transcript, he concluded that defendant's "capacity to reason and learn between the time of his trial and [the present]" was "unchanged."

Dr. Hyman reviewed, among other things, defendant's trial and pretrial testimony and the medical reports of Drs. Franklin and Good. He was also aware of the legal principles involved in a competency determination and concluded that, in his opinion, defendant was competent at trial.

Dr. Friedman, a neuropsychologist who studies brain functioning and behavior and has in the past assessed trial competency, testified at defendant's 2000 trial regarding defendant's mental condition. In Dr. Friedman's opinion, defendant was competent in 2000 to stand trial. He based his opinion on the following facts, summarized by the trial court in its statement of decision as follows: "[Defendant's] testimony at both proceedings [trial and pretrial] demonstrated that he could define who witnesses were, he had a good memory of the events, he reflected on his testimony, he testified for an extended period, and he decided to testify after consultation with his counsel. He also believed that [a] letter written by [defendant to his attorney] displayed an ability to reason. He knew his attorney was watching out for his interests."

Dr. Berg, who testified in defendant's trial in 2000 regarding the issue of whether defendant knowingly and intelligently waived his Miranda rights,*fn6 testified that, in his opinion, defendant was, at that time, "competent to stand trial."

The trial court found that defendant had "failed to prove, by a preponderance of the evidence, that he was incompetent to stand trial." "Most importantly," the court stated, "in addition to relying just on test scores and interviews of Mr. Ary, which are artifacts of what Mr. Ary's potential mental abilities might be, Drs. Hyman, Friedman, and Berg were able to provide to the court specific examples of Mr. Ary's cognitive abilities before, during and after his trial which directly demonstrated that Mr. Ary, at the time of his trial, could, and did, rationally consult and assist with his counsel, had a rational and factual understanding of the charges against him, and had a factual and rational understanding of the criminal proceedings."

The court also discussed a test administered to Ary designed to measure potential mental abilities and "specifically designed to measure the intellectual functioning of a mentally retarded individual in the context of a criminal proceeding." The court summarized the results of this test: "Mr. Ary's test scores not only exceeded what one would expect of a mentally retarded person who is deemed competent but came within one and one-half points of the score one would expect of those persons who are not mentally retarded."

For the foregoing reasons, the court concluded that defendant had failed to prove by a preponderance of the evidence that he was incompetent to stand trial.

This timely appeal followed.


As earlier noted, the trial court initially determined that the prosecution would have the burden to prove by a preponderance of the evidence that defendant was competent to stand trial at the time he was convicted. The court changed its mind, however, after being persuaded by the district attorney that the procedure for conducting a competency determination was that prescribed by section 1369, which provides that "[it] shall be presumed that the defendant is mentally competent unless it is proved by a preponderance of the evidence that the defendant is mentally incompetent." (§ 1369, subd. (f).) As the district attorney emphasized, imposition of that burden was approved by the United States Supreme Court in Medina v. California (1992) 505 U.S.437 (Medina). The Attorney General advances the same argument here, but relies additionally on the majority opinion in Moran v. Godinez (9th Cir. 1994) 57 F.3d 690 (Moran).)

We reject the People's argument. As we shall explain, section 1369 describes the nature of the hearing which, pursuant to section 1368, must be held at the time of trial when "a doubt arises in the mind of the judge as to the mental competence of the defendant." Sections 1368 and 1369 do not purport to apply to a retrospective competency hearing after a Pate violation, a proceeding unknown in California at the time the statutes were enacted. The presumption of competency specified in section 1369, subdivision (f), therefore does not represent a legislative determination that such a presumption also applies at a retrospective competency hearing. Medina is factually inapposite, because it involved a contemporaneous, not a retrospective, competency determination; moreover, the reasoning of the opinion undermines the People's argument. Finally, we decline to follow the majority opinion in Moran, which conflicts with James v. Singletary (11th Cir. 1992) 957 F.2d 1562 (James), because it is unsupported by Medina and inconsistent with the requirements of due process and the rule of Pate, supra, 383 U.S. 375.


As indicated, allocation of the burden of proof at a retrospective competency hearing is an issue that has never been addressed by our Legislature (nor has it been addressed by Congress*fn7 or, apparently, by the legislatures of many states, if any). The presumption of competency prescribed by section 1369, subdivision (f), appears in chapter 6 of title 10 of the Penal Code, which as stated in section 1367, is designed to insure that "[a] person cannot be tried or adjudged to punishment while that person is mentally incompetent." (ยง 1367, subd. (a).) Section 1368 provides that "[i]f, during the pendency of an action and prior to judgment, a doubt arises in the mind of the judge as to the mental competence of the defendant" or "[i]f counsel informs the court that he or she believes the defendant is or may be ...

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