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The People v. Christopher Charles Lightsey

July 9, 2012


Court: Superior County: Kern Judge: John I. Kelly Super. Ct. No. 56801A

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

A jury in Kern County Superior Court convicted defendant Christopher Charles Lightsey in 1995 of the first degree murder of William Compton (Pen. Code, § 187)*fn1 and of burglary (§§ 459, 460, subd. (a)) and robbery (§§ 211, 212.5, subd. (a)) related to the murder.*fn2 As to each count, the jury found true the allegations that defendant personally used a deadly weapon in committing the offense (§ 12022, subd. (b)(1)) and that he had served a prior prison term (§ 667.5, subd. (b)). In conjunction with the murder verdict, the jury found true three special circumstance allegations: that the murder was committed in the course of a burglary and a robbery (§ 190.2, subd. (a)(17)(A), (G)), and the murder was intentional and involved the infliction of torture (§ 190.2, subd. (a)(18)). The jury returned a verdict of death, and the trial court, after denying defendant's motion for a new trial and the automatic application to modify the verdict (§ 190.4, subd. (e)), sentenced defendant to death.*fn3 This appeal is automatic. (§ 1239, subd. (b).) As discussed in part I.B.1.b., post, we conclude the trial court committed reversible error by permitting defendant to represent himself during proceedings to determine whether he was mentally competent to stand trial. To remedy this error, we remand the case for further proceedings to allow the trial court to determine whether a retrospective evaluation of defendant's competence to stand trial is feasible and, if it is, to hold such a hearing. If the trial court determines such a hearing is not feasible or defendant was incompetent, defendant is entitled to a new trial.

I. Guilt Phase A. Facts 1. Prosecution Evidence

William Compton, 76 years old at the time of the murder, lived alone in his house on Holtby Road in Bakersfield. Compton was an avid ham radio operator and collector of firearms. He owned an extensive collection of handguns and rifles, as well as equipment and materials related to the firearms, such as ammunition and maintenance supplies, all of which he stored in his house. He kept in a notebook a record of the various firearms he had purchased and sold over the years. His radio equipment was set up in one room of his house, and his motor home, which was parked in front of his house, contained more radio equipment.

Compton had been diagnosed with colon cancer that had metastasized to other parts of his body. He had started a course of radiation treatment a few days before the murder and had an appointment for his fourth session at 11:30 a.m. on July 7, 1993. The medical office where Compton received his treatments was located a 10-minute drive from his house, and on his previous three appointments he had arrived approximately 15 minutes before his appointment's scheduled time. Compton did not, however, make it to his appointment on July 7. A neighbor had seen him in his backyard at approximately 7:45 that morning. About 9:30 a.m., another neighbor saw a person she thought was Compton walking in the driveway in front of the house. The man was wearing khaki pants like those the first neighbor described Compton as wearing. Two of Compton's friends telephoned him on four occasions that day, but he did not answer any of the calls. The calls were made at approximately 8:01 a.m., 8:49 a.m., 11:05 a.m., and 1:35 p.m. George Miller, the friend who had made three of the calls, including the final one, eventually called the medical office where Compton had his appointments and learned that Compton had not arrived for his treatment. Miller, his wife, and the other friend who had called Compton that day then went to his house to check on him. The doors of the house were locked, and their knocking received no response. On looking through a bedroom window, Miller's wife saw Compton's body on the floor. The trio called 911, and the firefighters who responded to the scene forced open a window and confirmed that Compton was dead. It was very hot inside the house, and Compton's body, which was lying faceup on the floor and clothed only in underwear, was stiff with rigor mortis. There were wounds to Compton's torso, but their exact nature and number was not clear due to the blood on the body.

The police officers who responded determined that, other than where the firefighters had entered, the house bore no sign of forced entry nor were there any obvious signs that any property had been removed. Still in the house were a pair of pants containing Compton's wallet hanging on the towel rack in the bathroom, Compton's ham radio equipment, tools, a television, a videocassette player, and a rifle. The police officers and coroner's assistant at the scene theorized that Compton may have committed suicide, based on information concerning his serious medical condition and the circumstances that Compton's body bore what appeared to be superficial, "hesitation wounds," his body had not been moved after his death, and there were no obvious indications that a robbery had occurred.

Based on the initial uncertainty regarding the nature of Compton's death and the possibility it might have been a suicide, the police did not conduct a full forensic examination of the house and instead departed after sealing it. An employee of the coroner's office notified Compton's sister-in-law, Margaret Compton, of his death. The following day, July 8, 1993, Margaret went to the coroner's office to obtain the keys to Compton's house and vehicles. The coroner's assistant advised Margaret that she should secure Compton's belongings and vehicles before potential burglars learned of his death. She and her son Anthony then went to the house and removed a number of items, including five firearms, a ceremonial sword, a telephone answering machine, a television, a videocassette recorder, a computer, a ham radio, locksmith equipment, and a number of power tools. They also took the notebook that contained Compton's records of the firearms he had bought and sold, and two empty video camera boxes.*fn4

The coroner conducted an autopsy of Compton's body on July 9, 1993. Once the blood had been washed off the body and the full extent of Compton's wounds became apparent, that his death was a homicide and not a suicide was clear. There were 42 stab wounds grouped in three clusters in the front of his abdomen, on his neck and upper chest, and on his face, and one more stab wound in his right armpit. Two of the wounds in the chest had penetrated his heart, and the wounds to his neck had severed his left jugular vein and left carotid artery. As a result of the wounds to his heart and carotid artery, Compton would have lost consciousness and then bled to death within 15 minutes. The wounds appeared to have been inflicted more or less contemporaneously by a single object approximately a half-inch wide and at least five inches long. The object might have been a letter opener, a screwdriver, or a nonserrated metal file. The infliction of these wounds would have caused "extreme physical pain and suffering." There also were some superficial abrasions and bruising on his forehead, face, and chin that appeared to be slightly older than the stab wounds, but still fairly fresh. These injuries were consistent with "blunt trauma," such as being punched with a fist or falling and hitting some object.

A pathologist testified the handling of the body after it was found rendered "some of the usual parameters to gauge time of death invalid." In response to a hypothetical question paralleling the circumstances of this case--including the stage of the rigor mortis of the victim's body and environmental factors such as the ambient temperature--the pathologist confirmed such circumstances would be consistent with the victim's having died at 11:00 a.m. on the day his body was discovered.*fn5

After Compton's death was ruled a homicide, the police contacted Margaret Compton and instructed her to return the items she and her son had removed from the house. The police also conducted a more thorough search of the house, but did not conduct a full forensic examination because they considered the scene to have been contaminated. Using the records contained in Compton's notebook, the police entered the serial numbers of a number of unaccounted-for firearms into a computerized database of stolen property.

On August 19, 1993, the investigating officer learned that a Jeffrey Mahan recently had pawned in a local pawnshop a rifle with a serial number matching one that had been entered into the system. Police arrested Mahan and questioned him regarding the rifle. He told the police he had pawned the rifle at the request of his friend, Brian Ray. The police then obtained and served a search warrant for Brian Ray's residence, finding a total of 24 firearms, including 17 that were identified as having belonged to Compton. Ray and Dane Palmer, who was present in Ray's residence when the warrant was served, were arrested. Police later learned that Palmer also had pawned another of Compton's firearms at the same pawnshop Mahan had used.

Ray initially was charged with Compton's murder and possession of stolen property. He chose to cooperate with the police and, before the trial, the murder charge was dismissed. Following his guilty plea to possession of stolen property, he was granted a sentence of probation. His probation subsequently was revoked, and he was in the midst of serving 16 months in prison when he testified at defendant's trial. Ray confirmed at trial that he had not been promised anything in return for his testimony.

Ray testified that he had agreed to help defendant clean and store a number of his firearms because defendant was scheduled to go into custody the next day for a criminal matter unrelated to William Compton's murder. (See, post, fn. 6.) Defendant told Ray the guns belonged to him, that he had inherited them from family members, and that he had proper documentation for them. While defendant was in prison, he called Ray a number of times asking about his guns, which he referred to as his "books." Ray initially stored the guns in a storage locker, but moved them to his apartment shortly before the police executed the search warrant because he was planning to give the guns to defendant's girlfriend, Beverly Westervelt. Ray had grown tired of defendant's repeated inquiries about the guns.

Beverly Westervelt testified that she had an on-again-off-again romantic relationship with defendant, which they had renewed in January 1992. After living together in an apartment, they began looking for a larger place to live. Defendant wanted to purchase a house near his mother's home on Holtby Road. In the summer of 1992, defendant took Westervelt and her children to look at a house on Holtby Road, although there was no indication the house was for sale. The home's owner was not interested in selling the house but told defendant the owner of the house across the street might be interested in selling his house. This turned out to be victim William Compton's house.

One evening, probably in September 1992, defendant took Westervelt and her children to look at Compton's house, which also had no indication it was for sale. After defendant parked in the driveway behind the house, they went to the backdoor and knocked. Compton answered the door and, in response to defendant's inquiry, said the house was not for sale. Compton nonetheless agreed to let them come inside to look at the house. According to Westervelt, defendant saw a rifle in a bedroom, and he and Compton proceeded to talk about Compton's gun collection for approximately 20 minutes. Compton showed defendant several other rifles. After staying about 45 minutes inside Compton's house, defendant, Westervelt, and her children left. Defendant brought Westervelt back to Compton's house approximately one week later to look at the backyard. Defendant approached from an adjacent driveway and looked over the fence into Compton's yard.

Defendant eventually purchased a house in a different part of Bakersfield, and he, Westervelt, and her children moved into the house in October 1992. Westervelt and her children moved out in April 1993, and she did not have any contact with defendant for several months. On June 29, 1993, defendant was arrested and jailed on unrelated charges and he contacted Westervelt for assistance in helping him obtain bail. Defendant was released on bail on July 2; Compton was killed five days later.

At the end of July defendant agreed to stay away from his house and moved into a rental cottage.*fn6 He asked Westervelt to move some items out of his house for him, including two video cameras. She had not seen the cameras before and asked defendant where he had acquired them. He said he had purchased them at a bargain sale. Defendant told her to take the cameras and use them, so she stored them in her apartment. On her final visit to defendant's house, Westervelt, as defendant had requested, left the burglar alarm off and one of the exterior doors unlocked.

On August 10, 1993, Westervelt accompanied defendant to a place where he shot several handguns at bottles and cans. Westervelt had never seen defendant with those guns before. Defendant told her he had bought them through newspaper advertisements.

As a result of his arrest for molestation at the end of June, defendant was scheduled to go into custody on August 12, 1993. In the days leading up to that date, defendant repeatedly asked Westervelt to store a number of firearms for him, but she refused and eventually suggested he ask Brian Ray to store the guns. Defendant and Westervelt arranged to meet Ray at a friend's house. Defendant parked in the garage, and he, Ray, and Ray's friend Dane removed more than 10 firearms from the trunk of defendant's car and proceeded to clean them. Defendant, however, did not leave the guns with Ray at that time because he was afraid something would happen to them. When Westervelt continued to refuse to store the guns, however, defendant eventually telephoned Ray and asked if he would store them. Defendant told Westervelt that Ray had agreed to store the firearms.

Westervelt later gave the police several items she said belonged to defendant, including the two video cameras. The serial numbers on the video cameras matched the serial numbers on the empty boxes found in Compton's house, and they contained videotapes with footage of Compton. She also turned over several letters defendant had written to her while he was in custody. In the letters, defendant repeatedly referred to his "books," which they had agreed would serve as a code for the firearms Ray was storing. Defendant primarily expressed his concern that nothing happen to his "books" and that they should be "preserved in time" "like mummies in an Egyptian tomb." At some point, Westervelt told defendant that an investigator had come to defendant's mother's house. Defendant's letters thereafter contained various statements that appeared to be purposefully vague or misleading regarding his not having possessed any firearms or video cameras, or having looked for a house in his mother's neighborhood. In addition, defendant now told Westervelt that the "accountant" (the keeper of his "books") "needs to clean house." In another instance of a possible attempt to destroy evidence related to Compton's murder, defendant told Westervelt to spend the coins he had stored in a jar at his mother's house. Westervelt had never seen such a jar of coins when she was living with defendant.

Defendant's sister subsequently gave the police a jar of coins that had been at defendant's mother's house, and a Masons' ring that had been inside defendant's filing cabinet. The ring corresponded to the rank that Compton's deceased father had obtained within the Masons.

Karen Lehman, who was Brian Ray's sister, testified that in June 1993, defendant asked her to stay at his house from time to time to help prevent it from being vandalized. She thereafter spent some nights at the house, and on a few occasions she and defendant had sexual intercourse. On or shortly before July 4, 1993, Lehman asked defendant about his plans for the Independence Day holiday, and he told her he was planning to check in on a friend who was a sick, elderly man--either 72 or 76 years old--who lived on Holtby Road near defendant's mother's house.

Around July 8 or 9 (i.e., a day or two after the murder), defendant asked Lehman if he could store some items in the trunk of her car. When she asked why he needed her to store the items, defendant said it was because he was being "discriminated against." Lehman agreed, and after placing the items (which Lehman did not see) in the trunk, defendant had Lehman lock her car inside a garage. A few days later, Lehman told defendant she needed to use her car, so they drove the car to defendant's house. He removed the items from the trunk and took them inside. During a subsequent visit to defendant's house, Lehman saw more than 20 firearms in his bedroom. Defendant told her he had inherited some of them from his father and had purchased others through newspaper advertisements. Defendant became intoxicated and threatened Lehman, saying he would harm her if she told anyone about the guns and he could arrange for someone else to harm her if he was unable to do it himself.

Robert Rowland, a convicted felon who had spent most of his adult life in prison, testified he was incarcerated with defendant in a correctional facility around the end of 1993. Defendant told him about killing an elderly man for his guns. Defendant mentioned a number of different types of guns and specifically listed some that were consistent with firearms that belonged to Compton and were recovered from Brian Ray. Defendant also told Rowland he had given the guns to someone and that person was "snitching on him." After telling the authorities about defendant's statements, Rowland was transferred to another institution. While at that institution, another inmate attempted to cut Rowland's throat, resulting in an injury requiring 12 stitches. Although Rowland initially did not want anything in return for testifying about what defendant had told him, after he was attacked he did not want to testify against defendant until the prosecutor agreed to request that prison authorities transfer him to an out-of-state facility.

Evidence regarding the prior-prison-term enhancement allegation under section 667.5, subdivision (b) was presented in a bifurcated proceeding after the jury reached its verdicts on the substantive charges. The prosecution introduced certified records showing that defendant had been convicted of possession of cocaine in 1987 and, after a revocation of his parole, had been released from prison on March 6, 1990, within five years of the murder.

2. Defense Evidence

The defense evidence centered on defendant's presence at a court proceeding on the morning of July 7, 1993 (the morning the evidence established Compton was murdered), when defendant's proceeding concluded, and whether it was possible for defendant to have committed the murder that morning.*fn7 Defendant undisputedly was in court that morning seeking return of his bail bond premium in his molestation case. The reporter's transcript of the proceeding and various witnesses--including defendant's mother, his defense attorney, the prosecutor, and the courtroom bailiff--verified this. Telephone records and other testimony also indicated someone had placed a telephone call from defendant's house to his bail bondsman at approximately 11:50 that morning. The evidence and testimony did not, however, conclusively establish when defendant's court proceeding concluded. Based on the witness testimony and the defense attorney's notes from the other court proceeding he was involved in that day, defendant's court proceeding could have been completed as early as within a few minutes after 10:30 a.m., or as late as a few minutes before 10:55 a.m. If it was the former, there would have been sufficient (but not excessive) time for defendant and his mother to walk from the courthouse to his mother's car, which was parked at the defense attorney's nearby office, for defendant to drive them to his mother's house, and then for defendant to drive to the victim's house (arriving before Compton was to leave for his doctor's appointment and, presumably, before the telephone call Compton's friend made to him at 11:05 a.m.) and thereafter to commit the robbery and murder, leaving defendant enough time to return home to make the telephone call to his bail bondsman at 11:50 a.m. If defendant's court proceeding concluded closer to the later end of the range (i.e., 10:55 a.m.), it would have been exceedingly difficult, if not impossible, for defendant to have committed the murder.

Defendant's mother also testified she believed that, after arriving back at her house from court that morning, defendant remained there until 11:30 a.m. or noon, while he ate a sandwich and had a drink. She admitted, however (and other witnesses confirmed), that at various times before trial she had told different people she did not have a good memory of the events of that morning, including even whether she had attended court with defendant. Defendant had tried to convince her they were in court all day on July 7, 1993, but she knew this was incorrect because she had attended a birthday party for another of her sons on that day.

Darren Howard and Alfred Stone testified they each sold a firearm that the police subsequently seized from Brian Ray. Howard thought defendant might have been the person who purchased his rifle. Stone did not remember the person he had sold his rifle to, but defendant had a copy of the advertisement Stone had placed in the local newspaper. Beverly Westervelt testified defendant routinely kept significant amounts of cash on hand and often purchased items, including large items such as a used car, with cash.*fn8

Vaughn Lehman testified he had been married to Karen Lehman for 22 years before their divorce and had known Brian Ray for approximately 25 years. In his opinion, both of them had bad reputations in the community for truth and veracity.

B. Issues 1. Defendant's Mental Competence

At a number of points in the pretrial and trial proceedings, questions arose concerning defendant's mental competence to stand trial. (See § 1367, subd. (a) ["A person cannot be tried or adjudged to punishment while that person is mentally incompetent."]; Pate v. Robinson (1966) 383 U.S. 375, 378 ["the conviction of an accused person while he is legally incompetent violates due process . . ."] (Pate).) On appeal, defendant contends the trial court committed various errors in addressing this issue. We conclude the trial court's failure to appoint counsel to represent defendant during one of the competency proceedings violated his statutory rights, resulting in a reversible miscarriage of justice. We further conclude the matter should be remanded for a determination of whether a retrospective competency hearing is feasible and, if so, for the trial court to hold such a hearing.

a. Background

Throughout the proceedings in the trial court, defendant generally had difficult relationships with the attorneys appointed to represent and assist him. Indeed, defendant went through five attorneys--and represented himself for a period of time--before settling on the two attorneys who eventually represented him during the trial. Even those two attorneys, however, did not enjoy a particularly amicable relationship with defendant, as he continually expressed disagreement and dissatisfaction with them, to the point where, during his own counsel's closing argument at the penalty phase, defendant's vocal interruptions became so disruptive that the trial court ordered him removed from the courtroom. Defendant's outbursts during the proceedings were not directed at defense counsel only; he also consistently interrupted the court, the prosecutor, and various witnesses (both defense and prosecution). Defendant's behavior led his attorneys on a number of occasions to express doubts concerning his mental competence to proceed. Although the trial court twice suspended the proceedings to have defendant examined by experts for competence, it found defendant competent both times. At other times, the court disagreed that a doubt existed concerning defendant's ability to understand the proceedings and assist his attorneys and declined to suspend the proceedings for a psychiatric examination of defendant.

Defendant's first appointed attorney was Stan Simrin, but the trial court granted Simrin leave to withdraw because defendant was unwilling to waive the statutory deadline for trial to commence (see § 1382, subd. (a)(2)) and Simrin could not competently prepare for trial within that time period. Defendant's second attorney, Donnalee Huffman, withdrew for the same reason only days after she was appointed. On March 3, 1994, 10 days after he was appointed, defendant's third attorney, Edward Brown, filed a "Motion for PC 1368(b) and PC 1368(c)," requesting that the trial court order a mental competency hearing for defendant and suspend the proceedings until he was determined to be competent. The motion did not provide any details concerning counsel's reasons for doubting defendant's competence. Nevertheless, on March 7, 1994, the trial court granted the motion, suspended the trial proceedings, and arranged for defendant to be interviewed by a psychiatrist. In response to the court's order, defendant questioned how the court could "suspend criminal proceeding[s] without giving [him] an opportunity to speak," and stated, "Cancel the doctor's appointment. I don't need a doctor. I refuse."*fn9

As promised, when the psychiatrist designated to evaluate him, Dr. Richard Burdick, arrived for the interview, defendant refused to answer any questions. Defendant informed Dr. Burdick that he was seeking to have his attorney removed by "initiat[ing] a Marsden" (People v. Marsden (1970) 2 Cal.3d 118), and therefore he needed to "protect his rights" and would speak only in court. In his subsequent two-page report filed with the court, Dr. Burdick stated his "brief encounter" with defendant was not sufficient to complete a "formal psychiatric evaluation," but from Dr. Burdick's limited observation of defendant "[i]t would seem apparent at this point that this man is in control of his faculties and is not demonstrating a psychiatric illness at this point." Dr. Burdick noted the jail staff had reported behavior suggesting defendant was "deliberately disruptive and a trouble maker but [not] psychotic." In conclusion, Dr. Burdick opined defendant was "able to understand the nature and purpose of the proceedings taken against him and if he so chooses, he is capable of cooperating in a rational manner with counsel in presenting a defense."

At the competency hearing before the trial court on March 28, 1994, Attorney Brown and the prosecutor both stated they would submit the matter of defendant's competence based on Dr. Burdick's report, and the trial court, without further discussion, found defendant competent to stand trial.

Immediately after that finding, defendant personally filed a motion to recuse the judge under Code of Civil Procedure section 170.6, which the court granted. Defendant's Marsden motion was heard later that morning before a different judge. In a long statement to the court, defendant accused Attorney Brown of failing to take any steps to develop a defense to the charges. Brown, in contrast, stated defendant had been hostile and uncooperative from the beginning of the appointment. The court, in denying the motion to relieve counsel, stated that in its view "this is more of an issue of cooperation between counsel and the defendant[, a]nd the court is concluding very quickly that the defendant is not cooperating with his counsel. That doesn't mean that he is entitled to the appointment of other counsel and [to] keep going through a number of counsel until such time as he is going to cooperate." Later that day, Brown requested the appointment of a second attorney to represent defendant due to the complexity of the case and the circumstance that, because of "the client's attitude," in counsel's view "it's going to take at least two of us to handle this situation." The court agreed to appoint James Sorena as second counsel.

Defendant next filed a motion to represent himself under Faretta v. California (1975) 422 U.S. 806 (Faretta). At the hearing on that motion, defendant gave a rambling statement criticizing his attorneys' performance and accusing them of participating in a conspiracy against him. The trial court considered defendant to have renewed his Marsden motion and conducted a hearing on that issue. When questioned by the court, Attorney Brown again stated defendant had refused to cooperate, except with regard to the preparation of the Faretta motion, and communication between them concerning the case was impossible because defendant "has an opinion that the system has absolutely walked over him, that he hasn't been fairly represented." The Marsden hearing was continued to the next day, and defendant repeated his allegations of a conspiracy against him, claiming the transcripts of various court proceedings had been altered and his defense attorneys were helping the district attorney convict him. During these hearings, defendant at times talked too fast for the court reporter to record what he had said, and his answers to various questions from the court often strayed to other topics without answering the questions that had been asked. The trial court ultimately denied the Marsden motion.

At this point, Attorneys Brown and Sorena again asked the trial court to declare a doubt regarding defendant's mental competence to proceed. They observed that the first competency hearing might not have complied with the statutory requirements because, despite defendant's apparent view he was not incompetent, the court had appointed only one expert to assess his competence. (See § 1369, subd. (a) ["In any case where the defendant or the defendant's counsel informs the court that the defendant is not seeking a finding of mental incompetence, the court shall appoint two psychiatrists, licensed psychologists, or a combination thereof."].) Further, in counsel's view, defendant's courtroom statements and behavior indicated he was not mentally competent to proceed. The trial court disagreed that defendant's competence was in doubt, stating it believed defendant was able to communicate and cooperate with counsel in a rational manner if he chose to do so.

At a subsequent hearing on April 11, 1994, the trial court, after a very lengthy discussion, granted defendant's Faretta motion and relieved Attorneys Brown and Sorena. Two days later, at defendant's request, Attorney Ralph McKnight, Jr., was appointed as advisory counsel for defendant. On June 29, 1994, Attorney McKnight, although serving only as advisory counsel, filed a motion requesting that the trial court terminate defendant's self-representation due to his asserted mental incompetence. Included with the motion were declarations from McKnight and defendant's former attorney, Sorena. McKnight declared that in his view, based on the eight times he had met with defendant, defendant was "demonstrating signs of serious mental instability" and "appears to be unable to comprehend and appreciate either the substantive or the procedural law which is applicable in this matter." According to McKnight, defendant's "prior waiver of counsel appears to be a direct outgrowth of his delusion that the justice system in general, and defense attorneys in particular, are in league against him in an all pervasive conspiracy. He also appears to have a belief in his own super competence, which causes [him] to believe that he alone has the correct interpretation of the law. These delusions render him incompetent to knowingly and intelligently appreciate the difficulties he will face representing himself and what is at stake." McKnight reported that, as was the case with defendant's prior attorneys, defendant "refuses to cooperate with myself as his advisory counsel, refuses to accept advice from me, and remains hostile, accusatory and suspicious." Further, defendant had repeatedly asked counsel to make various motions or take other actions which were "impossible, impractical or inconsistent," and then cited counsel's refusal to follow defendant's orders as further proof counsel was "part of the conspiracy against him."

Attorney Sorena's declaration echoed these concerns. In their first meeting, defendant could not focus his discussion, was very suspicious of Sorena, and by the conclusion of the 45-minute meeting was convinced that Sorena was "part of a pervasive conspiracy against him." According to Sorena, defendant believed "all members of the justice system were in collusion to execute him, including the court reporters who falsified the transcripts of prior hearings." Based upon Sorena's contact with another criminal defendant who had been diagnosed with paranoid and delusional disorders, Sorena "was convinced after my interview with [defendant] that he was genuinely delusional to the point where his ability to assist counsel was in substantial doubt."

On July 7, 1994, the trial court, based on Attorney McKnight's motion and over defendant's objections, again suspended the proceedings for an assessment of defendant's mental competence. The court, however, permitted defendant to continue to represent himself, including choosing one of the experts who would interview him.

The two resulting medical opinions concerning defendant's competence presented to the court in written reports came to conflicting conclusions. The expert chosen by the court, Psychiatrist Luis Velosa, concluded defendant was "suffering from a psychiatric disorder which impairs his thinking process . . . best classified as bipolar disorder (manic type) or a paranoid disorder. The defendant at present is exhibiting psychotic symptoms characterized by a thought disorder in which [he] experiences racing thoughts, looseness of associations, rambling of thoughts, sometimes without any logical connection. In addition, the defendant experiences paranoid thinking, persecutory delusions, [and] a false belief that there is a conspiracy against him." Dr. Velosa concluded that defendant "is at present able to understand the nature and purpose of the proceedings taken against him. However, because of his psychiatric symptoms, the defendant at present is unable to cooperate in a rational manner with counsel in presenting a defense. Furthermore, despite . . . the fact that the defendant has a vast knowledge of the legal system and legal proceedings, because of his psychiatric symptoms, [he] is not able to represent himself." Dr. Velosa also noted that defendant's judgment was "impaired and he [had] no insight into his mental disorder."

The expert chosen by defendant, Psychiatrist Sakrapatna Manohara, found defendant to be "generally cooperative but . . . quite manipulative." Defendant's speech was "coherent but appeared to be circumstantial," and he was "blaming all his problems on the system." Dr. Manohara found defendant "did not appear to be really delusional although he was highly mistrustful of the system and the attorneys." According to Dr. Manohara, defendant "performed well" in tests designed to assess his memory and concentration, and he "showed appropriate affect to thought content." Defendant exhibited "some anger and frustration" at being "railroaded" and believed he needed to "let go and let God take care of things." In Dr. Manohara's opinion, defendant had a "grandiose sense of self importance," tended to "exaggerate achievements and talents," spoke in a manner that was "excessively impressionistic and lacking in detail," and believed "his problems [were] unique and [could] only be understood by other special people." Defendant did not have a "clear-cut psychotic disorder," but did appear to be "excessively mistrustful of the system," and exhibited a narcissistic personality disorder. Dr. Manohara concluded that defendant's "personality disorder makes it difficult to work with him as an attorney but . . . he is competent to stand trial. However, he is not competent to represent himself because of his lack of objectivity and his grandiose sense of self importance and his tendency to be circumstantial with a sense of entitlement. He may over-react to criticism with feelings of rage."

The trial court held a hearing concerning defendant's mental competence on July 28, 1994. In summarizing the doctors' reports, the trial court noted Dr. Manohara had found defendant competent to stand trial, while "Dr. Velosa, although he reflects what I would suggest to be some reservation in that regard, he does indicate that [defendant was] able to understand the nature and purpose of the proceedings." Defendant, who continued to represent himself at the hearing, insisted he was competent to proceed and demanded a jury trial on the issue of his mental competence. The prosecutor, also apparently desiring a finding defendant was competent, suggested defendant waive his right to a jury trial and agree to submit the matter on the experts' reports if the trial court was "inclined to find that [defendant] is competent to stand trial, which I believe is what he wishes." The trial court then asked defendant whether he would "waive a jury trial on that issue so we can get on with the show." Defendant agreed to do so, and the court proceeded to find defendant competent. Thereafter, Attorney McKnight, who had not participated in the hearing, asked to be relieved as advisory counsel based on the complete breakdown of his relationship with defendant. The trial court granted the request.

Although the trial court had found defendant competent for purposes of continuing with the proceedings, the court nonetheless expressed concerns regarding whether defendant was competent to waive his right to counsel and to represent himself, and on August 2, 1994, it held a hearing to address that issue. At the hearing, defendant continued to represent himself. After the three doctors (Drs. Burdick, Velosa, and Manohara) who previously had evaluated defendant's mental competence testified, the trial court found defendant's waiver of the right to counsel was valid. In the court's view, defendant's difficulties in focusing and effectively communicating were the result of his excited state and his lack of experience in courtroom proceedings. The court said it was "sure much of that will settle down when you're in a trial situation, and I don't think that that in any way would indicate to this Court that you cannot make a knowledgeable and intelligent waiver as to your right to represent yourself." The court then appointed Attorney James Gillis as advisory counsel for defendant.

Paralleling the experience of defendant's prior attorneys, Attorney Gillis, on September 12, 1994, filed a motion to terminate defendant's self-representation because defendant was not mentally competent. In the declarations submitted with the motion, Gillis recounted defendant's delusions concerning the conspiracy against him, which were negatively affecting counsel's ability to assist him and defendant's own ability to prepare a defense. At the hearing on the motion, defendant stated he would voluntarily waive his right to represent himself if the court would agree to appoint Attorney William Dougherty as lead counsel, with Gillis perhaps continuing as co-counsel. Defendant would accept the appointment of Dougherty because he was an attorney who primarily practiced in a different county. The trial court appointed Dougherty and Gillis as suggested, and the case proceeded to trial.

Although Dougherty and Gillis continued to represent defendant through the trial, their relationship with defendant was not an easy one. As the trial progressed, defendant became more and more disruptive. He made faces and comments during witnesses' testimony and the attorneys' arguments. He repeatedly professed his innocence and proclaimed his belief there was a far-reaching conspiracy against him that involved altering the transcripts of the court proceedings he had attended on the day of the murder and the preliminary examination in the present case. The trial court at times expressed its view that it appeared defendant could not control himself and his outbursts in front of the jury likely were detrimental to his defense. When the guilt phase verdict was announced, defendant shouted that the case against him was a fraud and he was innocent. His reaction was so riotous that the jury was cleared from the courtroom, and after a several-minute tirade by defendant, the trial court threatened to order defendant gagged if he could not control himself. After a discussion with defense counsel, defendant agreed to remain silent for the remainder of the reading of the verdict.

Before the penalty phase began, counsel filed yet another motion to suspend the proceedings due to defendant's asserted mental incompetence. At the next court proceeding, counsel stated defendant had progressively become more and more delusional and paranoid regarding the conspiracy against him, and at that point defendant not only could no longer assist counsel in a rational manner but was actually undermining the defense efforts. The prosecutor, however, expressed the view that defendant was a "master manipulator" and, as the trial court had consistently found in the past, was able to cooperate with counsel but, for his own reasons, was choosing not to do so. The trial court refused to declare a doubt concerning defendant's mental competence, stating it was "fully convinced that [defendant] has a mental capacity--he may not have a mental discipline, but he's got a mental capacity to be fully aware of what's happening, what's going on with what the procedures are." The court noted that, rather than there being a breakdown in communication between defendant and counsel, it appeared defendant was "constantly talking to his attorneys." The court permitted defendant to read a statement into the record in which he again made his allegations of fraud and conspiracy. Later that day, during a conference outside the presence of the jury, the trial court reiterated that "the court does not have any doubt as to [defendant's] competency to stand trial in this matter."

When defendant expressed his intention to testify at the penalty phase, despite defense counsel's fervent advice not to do so, the trial court attempted to obtain an on-the-record waiver of defendant's right to remain silent. Defendant, however, would not expressly agree to make such a waiver, and the court ultimately stated that, in its view, defendant's testifying would be "very detrimental" to his interests because "he can't seem to discipline his thought processes, [and] respond to the simple questions I'm asking him about his right to remain silent." Defense counsel reminded the court they believed defendant was not mentally competent to proceed, but the court stated it believed defendant was merely "in a position of denial" regarding the crimes. The trial court ultimately found that defendant was validly waiving his right to remain silent.

As defense counsel predicted, defendant's penalty phase testimony was unhelpful. His testimony in general was rambling, and the court and his attorneys repeatedly admonished him to answer the questions that were asked. He testified the evidence presented at the guilt phase to support his alibi defense was entirely fraudulent, and he actually had been in a different courtroom for the entire day of the murder. During closing arguments, defendant became more and more boisterous, repeatedly interrupting both the prosecutor and defense counsel, to the point where, during defense counsel's final argument, the trial court ordered defendant removed from the courtroom for the remainder of the argument. Defendant thereafter watched, from another courtroom, a video feed of the rest of counsel's argument. The trial court, anticipating continued disruptive behavior, instructed security personnel to gag defendant if he continued to have outbursts that were likely to disrupt any proceedings in the courthouse.

The next morning, defense counsel, citing the events of the previous day, again requested that the trial court suspend the proceedings in order to evaluate defendant's mental competence. The trial court again expressed its view that defendant was voluntarily choosing not to cooperate with counsel and merely had a bad "attitude." The court declared, "There is no doubt in this Court's mind as to the competence of [defendant], none whatsoever."

At the hearing on defendant's motion for a new trial, the automatic application to modify the verdict, and the court's imposition of the sentence, defendant continued to interrupt the proceedings. The court ultimately ordered defendant gagged and restrained in his chair. Defendant nonetheless was able to struggle free of the gag, at which point he requested a Marsden hearing. Defendant was again gagged, and the sentencing proceeding continued. The court ultimately allowed defendant to make a final statement in which he restated his allegations of fraud and conspiracy.

b. Failure to Appoint Counsel for Defendant During Second Section 1368 Proceedings

As recounted above, defendant's counsel moved five different times during trial to have the trial court declare a doubt about defendant's mental competence to stand trial. The court granted two of the motions--the first on March 7, 1994, and the second on July 7, 1994--held hearings both times, and twice concluded defendant was not incompetent. On appeal, defendant makes a number of claims related to his five motions and two competency hearings. One such claim is meritorious: the trial court erred in allowing defendant to represent himself during the competency proceedings following the trial court's second declaration of doubt under section 1368. We conclude this error constitutes a reversible miscarriage of justice and the appropriate remedy at this time is to remand to the trial court to allow it to conduct a retrospective competency hearing, if feasible.

i. Standards of mental competence

The United States Supreme Court has "repeatedly and consistently recognized that 'the criminal trial of an incompetent defendant violates due process.' " (Cooper v. Oklahoma (1996) 517 U.S. 348, 354.) A defendant is deemed incompetent to stand trial if he lacks " ' "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding . . . [or] a rational as well as factual understanding of the proceedings against him." ' " (Ibid., quoting Dusky v. United States (1960) 362 U.S. 402, 402 (Dusky).) "Even when a defendant is competent at the commencement of his trial, a trial court must always be alert to circumstances suggesting a change that would render the accused unable to meet the standards of ...

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