Contra Costa County Super. Ct. No. 5-980575-5 Ct.App. 1/2 A113020
The opinion of the court was delivered by: Kennard, Acting C. J.
A state that puts a mentally incompetent criminal defendant on trial violates the due process clause of the federal Constitution's Fourteenth Amendment. This constitutional provision also requires that, whenever the evidence raises a reasonable doubt about a defendant's mental competence, a hearing be held in the trial court to assess the defendant's mental state. Here, on defendant's appeal from a murder conviction, the Court of Appeal held in its first opinion in these proceedings that the trial court had erred in failing to evaluate evidence of defendant's mental competence before proceeding with the trial. (See People v. Ary (2004) 118 Cal.App.4th 1016, 1018 (Ary I).) The Court of Appeal then remanded the case to the trial court to decide whether the error could be "cured" by a "retrospective" competency hearing. (Ibid.)
Thereafter, the trial court determined that evidence was still available regarding defendant's mental condition when he was tried and it was therefore feasible to evaluate retrospectively defendant's mental competence at that time. At the retrospective hearing, the trial court placed on defendant the burden of proving, by a preponderance of the evidence, that he was mentally incompetent when tried. This is the same showing that our Penal Code requires of a defendant at a competency hearing held at the time of trial. (Pen. Code, § 1369, subd. (f).) After the trial court's consideration of conflicting testimony by defense and prosecution witnesses, it ruled that defendant had failed to carry his evidentiary burden. On defendant's appeal, the Court of Appeal held, in a two-to-one decision, that the trial court at the retrospective competency hearing had violated defendant's federal due process rights by assigning to him the burden of proving that when he was tried, he lacked mental competence. We agree with the dissenting Court of Appeal justice that no such due process violation occurred.
Defendant was charged with capital murder for the 1997 killing of Ronnie Ortega in Contra Costa County. Ortega was shot while seated in his car, which was stopped at a traffic light. When arrested, defendant was advised of, and waived, his constitutional rights under Miranda v. Arizona (1966) 384 U.S. 436, and he confessed to shooting Ortega.
Defendant moved pretrial to suppress his confession, arguing that his Miranda waiver had been neither knowing nor voluntary, and that his statements to the police had been coerced. In support, defendant presented psychiatric testimony that he suffered from mild mental retardation. The trial court ruled that defendant's Miranda waivers had been knowing and voluntary. But the court agreed with defendant that his confession was the product of police coercion and therefore suppressed it.
In September 2000, the case went to trial before a jury, which convicted defendant of first degree murder and three other felonies. (Pen. Code, §§ 187, 215 [carjacking], 211 [robbery], 12021, subd. (a)(1) [felon in possession of firearm]; further undesignated statutory references are to the Pen. Code.) The jury also found true special circumstance allegations that made defendant eligible for the death penalty: Defendant committed the murder "by means of lying in wait" for the victim (§ 190.2, subd. (a)(15)) and also during his commission of a robbery and a carjacking (id., subd. (a)(17)(A) & (L)). After the jury was unable to decide on the appropriate penalty for the murder, the trial court declared a mistrial and sentenced defendant to life imprisonment without parole for the murder, with a consecutive prison term of 16 years four months for the other felonies.
Defendant appealed (Court of Appeal case No. A095433), challenging the trial court's judgment on various grounds. In May 2004, a unanimous Court of Appeal panel held that the trial court's failure to conduct a pretrial inquiry into defendant's competence to stand trial violated defendant's right to due process under the federal Constitution. (Ary I, supra, 118 Cal.App.4th at pp. 1021-1025.) The Court of Appeal described the error as "per se prejudicial" (id. at p. 1025), yet it did not reverse defendant's convictions. Rather, after considering supplemental briefing on whether the error could be "cured" (ibid.), the Court of Appeal followed the procedure set forth by the United States Court of Appeals for the Ninth Circuit in Odle v. Woodford (9th Cir. 2001) 238 F.3d 1084, by remanding the matter to the trial court for a retrospective competency hearing. (Ary I, supra, at pp. 1025-1028.) On remand, the trial court was to decide whether such a hearing would be feasible. (Id. at p. 1029.) Feasibility, the Court of Appeal explained, would depend on whether sufficient evidence remained to render a " 'reasonable psychiatric judgment' " of defendant's mental condition when he was tried. (Ibid.) Only after that determination, the court stated, could the retrospective competency hearing be held. (Id. at p. 1030.)
The Court of Appeal rejected defendant's request to impose "a 'beyond a reasonable doubt' standard of evidentiary proof on the People" to show the feasibility of holding a retrospective competency hearing. (Ary I, supra, 118 Cal.App.4th at p. 1029.) To require such a standard for "this threshold matter," the Court of Appeal concluded, would not be "particularly relevant or helpful" in determining whether sufficient evidence remained on which to base a reasoned assessment of defendant's mental competence when he was tried earlier. (Ibid.) The Ary I court further stated: "In the event [a retrospective competency] hearing is held and defendant is found to have been competent to stand trial, we will consider the remaining issues raised in this appeal. In the event defendant is found to have been incompetent to stand trial, the judgment shall be reversed." (Id. at p. 1030.)*fn1
Defendant then petitioned this court for review of a single issue: Whether the prosecution should have to prove beyond a reasonable doubt the feasibility of a retrospective hearing. Defendant did not challenge the Court of Appeal's conclusion in Ary I that, if a retrospective hearing was feasible, the trial court at that hearing might be able to "cure" its error in having proceeded to trial without first evaluating evidence of defendant's mental competency to stand trial. In August 2004, we denied defendant's petition for review.
Thereafter, on the remand that the Court of Appeal had ordered in Ary I, the trial court found that sufficient evidence was still available on defendant's mental condition when he was tried, so that at a retrospective hearing it would be feasible to determine defendant's mental competence when tried in 2000.
The retrospective competency hearing occurred in October and November 2005. Over defense objection, the trial court placed on defendant the burden of proving his lack of mental competence when he was tried. After considering the testimony of defense and prosecution witnesses, the trial court ruled that defendant "failed to prove, by a preponderance of the evidence, that he was incompetent to stand trial." In February 2006, defendant filed a notice of appeal challenging that ruling. (§ 1237, subd. (b) [a defendant may appeal from an order made after judgment affecting the defendant's substantial rights].) To that appeal, the Court of Appeal assigned case No. A113020, which is the matter now before us.
While defendant's appeal in case No. A113020 was pending, the same division of the Court of Appeal in May 2008 issued an unpublished, unanimous decision in case No. A095433 (defendant's original appeal from his conviction) addressing and rejecting the remaining issues raised in that appeal (none related to the competency issue), and affirming the judgment of conviction. That decision includes this description of the proceedings that had occurred: "In an earlier opinion (People v. Ary (2004) 118 Cal.App.4th 1016) we held that Ary was deprived of his constitutional right to a fair trial because the trial court did not order a competency hearing pursuant to section 1368. We remanded the matter for a retrospective competency hearing. That hearing has been held. At its conclusion, the trial court found that Ary was competent to stand trial. This finding has not been challenged." (Italics added.)*fn2 Defendant petitioned our court for review of the May 2008 decision. We denied review in August 2008.
In April 2009, a divided Court of Appeal panel filed its published decision in the matter now before us.
The Court of Appeal majority concluded that, in contrast to the burden-of-proof allocation at a competency hearing held before or during a trial, at a retrospective competency hearing federal due process principles require that the prosecution bear the burden of proving, by a preponderance of the evidence, that the defendant was competent when he was tried. The majority therefore "vacated" the trial court's competency finding made at the retrospective competency hearing. It again remanded the matter to the trial court, this time to have that court decide, based on the evidence already presented at the retrospective competency hearing, whether the prosecution had actually established, by a preponderance of the evidence, that defendant was mentally competent when he was tried in 2000. Its dispositional order further stated: "If, after imposing that burden, the [trial] court determines defendant was competent to stand trial at the time he was tried and convicted, it shall reinstate the judgment. If it concludes defendant was not then competent, it shall entertain such appropriate motions as may be made by the parties." (Italics added) We granted the Attorney General's petition for review on the burden-of-proof issue.
Not before us are the legal issues that the Court of Appeal resolved in its two earlier opinions on defendant's single appeal from the judgment of conviction in case No. A095433. Those issues include the Court of Appeal's determinations in Ary I, supra, 118 Cal.App.4th at pages 1025-1026, that (1) the federal constitutional error in failing to evaluate defendant's mental competence at the time of trial might be "cured" by means of a retrospective competency hearing (see Odle v. Woodford, supra, 238 F.3d at p. 1089); and (2) the prosecution at that hearing must establish the availability of evidence concerning defendant's mental condition when he was tried earlier, in order to show the feasibility of a retrospective hearing, but the prosecution need not prove feasibility beyond a reasonable doubt. Under the law-of-the-case doctrine, the Court of Appeal's resolutions of those issues are now conclusive. (See People v. Curl (2009) 46 Cal.4th 339, 352; Kowis v. Howard (1992) 3 Cal.4th 888, 892-893.)
Before discussing the issue on which we granted review -- allocation of the burden of proof at a retrospective or postjudgment competency hearing -- we summarize the constitutional principles that ...