Opinion
F039129.
11-3-2003
THE PEOPLE, Plaintiff and Respondent, v. LAMONT MARSHALL, Defendant and Appellant.
James H. Dippery, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, John McLean and George M. Hendrickson, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Lamont Marshall was convicted of one count of battery against a nonconfined person while he was confined in the Substance Abuse Treatment Facility (SATF) at the California State Prison in Corcoran (Pen. Code, § 4501.5). A prior strike conviction (§§ 667, subds. (d), (e), 1170.12) also was found true. Marshall was sentenced to eight years in state prison.
All references are to the Penal Code unless otherwise indicated.
On appeal, he contends the trial court should have granted his motion to acquit because there was insufficient evidence he lawfully was confined in a state prison. He separately claims the jury was not instructed properly on the statutory definition of whether a person is lawfully confined in prison. Marshall also argues the trial court should have suspended the trial and instituted competency proceedings, based on statements he made during trial. Finally, Marshall claims the trial court denied his constitutional right to a jury trial on the prior conviction allegation. We will affirm the judgment.
PROCEDURAL SUMMARY
On November 9, 2000, an amended information was filed in the Superior Court of Kings County charging Marshall with two counts of battery against nonconfined persons on October 14, 1999, while Marshall was confined in the SATF in Corcoran (§ 4501.5). As to both counts, it was alleged Marshall suffered one prior serious felony conviction within the meaning of the three strikes law (§§ 667, subds. (d), (e), 1170.12).
On January 18, 2001, Marshalls jury trial began. The trial court denied Marshalls motion to acquit pursuant to section 1118.1. On January 19, 2001, the jury found Marshall guilty of count I, but it was deadlocked on count II and the trial court declared a mistrial as to that count. The jury also found the prior conviction true.
On February 20, 2001, defense counsel informed the trial court that he doubted Marshalls present competency. The trial court suspended proceedings and appointed an expert to examine Marshall and determine his competence pursuant to section 1368. On March 14, 2001, the parties submitted the matter on the psychiatrists report and the trial court found Marshall incompetent. On April 4, 2001, the trial court committed Marshall to the Atascadero State Hospital. On August 20, 2001, the medical director of Atascadero filed a certificate of Marshalls mental competency. On August 30, 2001, the parties submitted the matter and the trial court found Marshall competent.
On August 31, 2001, the trial court denied probation and imposed the upper term of four years for count I, and doubled that term to eight years as the appropriate second strike sentence, and granted the prosecutions motion to dismiss count II.
FACTUAL SUMMARY
On October 14, 1999, Sergeant Bobby Campbell and Officer Jacqueline Brennan, employed as correctional officers at the SATF in Corcoran, were on duty in the dining facility. There were 25 to 30 inmates working in the kitchen. Brennan informed Campbell that she had a problem with an inmate who was assigned to work in the kitchen, and directed Campbell to Marshall.
Campbell had not previously encountered Marshall, but testified that Marshall was confined as an inmate in the facility.
"Q. How did you know him to be an inmate?
"A. Well, forgive me, because I was told, number one, that he was an inmate, and then when he appeared at the front door and was allowed inside the dining area, he was wearing inmate clothing.
"Q. Inmates wear a particular type of clothing?
"A. Yes, he was wearing jeans, and I looked at his state identification as he came through the door.
"Q. Thats pretty — thats common when you are going to talk with an inmate and counseling him about whats going on, that you approach and check who he is and check his ID?
"A. Yes, thats correct."
Campbell invited Marshall into the kitchens office, told him to sit down, and asked why he was upset. Marshall replied that he was not happy with the way his time was being kept in the kitchen. He also was upset because he was told the kitchen did not need him at that time, and he did not want to lose any worktime credits. Campbell explained that his assistance was not needed immediately, but he still would receive time credits and could be recalled later in the day. Campbell repeatedly explained the system and assured Marshall he would receive his credits, but Marshall was not receptive and said: "`Fuck you guys, you are fucking me out of my time."
Campbell testified Marshalls face and body language began to tighten and tense up. Marshall said he was going back to his housing unit. At that time, however, the facility was conducting the institutional count and all inmates were required to remain in their present location until the count was finished. Campbell told Marshall that he couldnt go back to his housing unit until the count was finished and, if he left, he would receive an absent day for refusing to work.
Campbell opened the office door and told Marshall to sit in the dining area until the count was finished. Marshall turned and faced Campbell, and he became "totally out of control." Marshall hit Campbells upper chest, just above his stomach. Campbell felt pain in his chest, fell backwards, and grabbed the front of Marshalls shirt, and they engaged in a violent struggle. Campbell pulled Marshall on top of him to avoid being hit by more punches, and they fell back on a desk. Campbell was on his back and he continued to struggle with Marshall, when they rolled to the floor. Marshall was on top of him and they continued to struggle. Campbell tried to gain control of Marshall but he resisted and tried to break free.
Brennan arrived and grabbed Marshalls shoulder, and tried to pull him off Campbell. Campbell testified that Marshall pulled back his right hand and slugged Brennan in the upper right breast, and dislodged her grip. Campbell scrambled to his feet but Marshall continued to struggle with him. Campbell finally pinned Marshalls arms behind him and took control of the situation as other officers arrived to help.
Peter Dean, an investigative services officer at the SATF, testified Campbell properly instructed Marshall to remain in the dining area until the institutional count was completed, and Campbells order was totally appropriate. Dean produced Marshalls section 969 file, which gives the history of where inmates have been, what they are incarcerated for and tracks an inmates arrival time at a particular institution. Dean testified that the section 969 file contained Marshalls name and Marshall matched the identification and description therein. The file was admitted into evidence.
Marshall did not testify at trial and rested on the prosecutions evidence. He was convicted of one count of battery against a nonconfined person, Campbell, while Marshall was confined in state prison, but the jury deadlocked on the same charge as to Brennan.
DISCUSSION
I. Marshalls Acquittal Motion
Marshall contends the trial court should have granted his motion to acquit pursuant to section 1118.1 because the prosecution failed to prove in its case-in-chief that he was "lawfully confined" in a penal facility, as required by section 4501.5. Marshall claims the prosecution should have presented an expert witness to explain the documentary evidence of his criminal history, because the jury would have been unable to interpret the relevant documents. Marshall concedes Campbell testified that Marshall was an inmate but dismisses this testimony.
A. Background
As set forth ante, Peter Dean produced Marshalls section 969 file, and testified that the identification and description contained in the documents matched Marshall. The prosecutor moved to introduce the section 969 file into evidence. Defense counsel objected based on relevance "unless the Court can make a preliminary finding that it is my client." The trial court overruled the objection and admitted the exhibit into evidence. Thereafter, the prosecutor rested his case.
The trial court excused the jury from the courtroom, and stated that it denied defense counsels objection to the exhibit because "based on the information obtained in the documents, they do appear to be related to [Marshall]." Defense counsel rested without presenting any evidence, but moved for an acquittal pursuant to section 1118.1 because the prosecution failed to produce any evidence Marshall was "lawfully confined" in the SATF on October 14, 1999, in violation of section 4501.5 and as alleged in the information.
The prosecutor replied that the section 969 file indicated Marshall was received at the SATF on April 8, 1999. While the documents indicated he was given a parole date, there was no evidence he was paroled or released prior to the instant offense, and there was evidence from which the jury could find Marshall was lawfully confined on October 14, 1999. In addition, Campbell testified that Marshall was an inmate on that day.
Defense counsel argued that the section 969 file did not show Marshall was held in custody on any particular charge in Corcoran. While there was a reference to a burglary conviction in 1997, Marshall served two years for that charge and it did not mean he was still in custody for that conviction in October 1999. Counsel claimed the records showed Marshall was released from custody in October. The prosecutor replied that the entirety of the section 969 file indicated Marshall was received in state prison on September 29, 1997, he was received in SATF on April 8, 1999, and "it doesnt show that he was received at any other facility after that, and theres testimony that he was present in the facility" on October 14, 1999.
The trial court reviewed the section 969 file and noted that Marshall was apparently released on parole in November 1998, and the prosecutor agreed. The trial court further noted that Marshall was received back into custody on February 26, 1999, and inferred it was for a parole violation but the record was "far from clear about that, but I suppose one could make that inference from the record." The trial court denied Marshalls motion to acquit but noted it would have been "helpful to have some expert witness interpret this for the finder of facts. The Court believes its sufficient to overcome the [section] 1118.1 motion."
B. Analysis
Section 1118.1 establishes a procedure for summary acquittal when the prosecution presents insufficient evidence of a criminal charge during its case-in-chief. (People v. Norris (2002) 95 Cal.App.4th 475, 478.) When a defendant pleads not guilty, he puts in issue the existence of every element of every offense charged. The People have the right and the obligation, in order to avoid a directed verdict of acquittal under section 1118.1, to offer evidence in their case-in-chief to establish all of those elements. (People v. Coddington (2000) 23 Cal.4th 529, 597, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)
The standard applied by a trial court in ruling upon a motion for judgment of acquittal pursuant to section 1118.1 is the same as the standard applied by an appellate court in reviewing the sufficiency of the evidence to support a conviction. (People v. Ainsworth (1988) 45 Cal.3d 984, 1022; People v. Mincey (1992) 2 Cal.4th 408, 432, fn. 2; People v. Crittenden (1994) 9 Cal.4th 83, 139-140, fn. 13.) A trial court should deny a motion for acquittal when there is any substantial evidence, including all reasonable inferences to be drawn from the evidence, of the existence of each element of the offense charged. (People v. Mendoza (2000) 24 Cal.4th 130, 175.) Substantial evidence is evidence that is reasonable, credible, and of solid value, from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Stanley (1995) 10 Cal.4th 764, 792.) In reviewing the trial courts denial of a motion to acquit, we also apply the substantial evidence standard and consider only the evidence then in the record. (People v. Mitchell (1994) 30 Cal.App.4th 783, 802; People v. Smith (1998) 64 Cal.App.4th 1458, 1464.)
The trial court properly denied Marshalls acquittal motion because there was substantial evidence, both direct and circumstantial, to establish Marshall was lawfully confined as an inmate when he assaulted Campbell. Campbells testimony provided extremely strong circumstantial evidence of Marshalls status: Marshall was wearing inmate clothing, Campbell checked his inmate identification, Marshall was assigned to work in the dining area along with other inmates, Marshall complained his worktime credits were not being properly calculated, and Marshall said he wanted to return to his housing unit instead of working that day. This evidence alone is sufficient to withstand a motion to acquit.
Marshall rejects Sergeant Campbells testimony as adding nothing to the quantum of proof, but Campbell was a correctional officer assigned to the dining area and familiar with the policies and procedures at the SATF. His unimpeached testimony established that Marshall was confined as an inmate when he committed the offense.
In addition, the prosecutions documentary evidence was not as confusing as claimed by Marshall. Marshalls section 969 file contains an abstract of judgment that Marshall was convicted in Alameda County for first degree burglary, and sentenced in September 1997 to two years in state prison.
The Department of Corrections three-page chronological history of Marshalls status states Marshall was received in state prison on September 29, 1997, and he was released on parole on November 12, 1998. On February 11, 1999, he was arrested and a "hold placed." An entry for February 26, 1999, states: "RSC RTC 10 mos SB16 Eligible. [¶] Signed uncond waiver on 3-08-99." On March 2, 1999, he was received at a facility ("SQRC"). These entries reflect Marshall was returned to custody because of a new arrest or parole violation, and received 10 months. There are various projected parole dates listed in the documents that are repeatedly crossed out and updated. On April 8, 1999, he was received at "CSATF & SP," consistent with the Corcoran Substance Abuse Treatment Facility and State Prison. The last entry in the chronological history is for September 21, 1999, and represents he was still in custody at that time, with a projected parole release date of October 18, 1999.
The entirety of the prosecutions evidence thus established Marshall was confined as an inmate at the SATF when he committed the instant offense on October 14, 1999. There is absolutely no evidence that he was not confined, or that he was released but for some reason remained in the SATF, on the critical day. The trial court properly denied Marshalls motion to acquit.
II. Denial of Marshalls Requested Instruction
Marshall next contends the trial court should have given his requested instruction as to whether he was a "confined person" within the meaning of section 4501.5. Marshall argues that the phrase has a technical meaning and the instruction given by the trial court deprived the jury of determining whether he was in custody as a result of an order, or whether he had been released on parole but was still in prison when he committed the offense. Marshall asserts that the instructional error was not harmless based on the nature of the jurys questions during deliberations, that the trial courts responses only strengthened their reliance on the trial courts faulty definition, that the cryptic entries in the section 969 file were never explained to the jury, and that the trial courts instructional error effectively eliminated an element of the offense and reduced the prosecutions burden of proof.
A. Background
Defense counsel requested an instruction on "what a confined person is under the law, that instruction would convey that a person would have to be an inmate or a prisoner as a result of the process of law rather than a mere visitor or someone who was detained beyond their release date unlawfully," and that confinement means that "lawfully — a confined person is one who is lawfully serving a sentence" that was imposed pursuant to law.
The trial court replied that the proposed language was contrary to the statutory definition and relied on Wells v. People of State of California (9th Cir. 1965) 352 F.2d 439, which held that it was immaterial whether the conviction was lawfully obtained. The trial court acknowledged that a "confined person" clearly would not include someone "dragged in off the street by a custodial officer and put into a prisoners uniform, which is rather farfetched, and the evidence produced by the People as to why [Marshall] is there is pretty skimpy." The trial court denied Marshalls request and indicated that it intended to instruct the jury "that a confined person is one serving a sentence in a state prison for a criminal conviction, including any time in custody for a violation of parole."
Wells held all that is required is "that the prisoner be serving a sentence. The statutes do not require that the conviction and sentence be a valid one." (Wells v. People of State of California, supra, 352 F.2d at p. 442.)
The jury received CALJIC No. 7.37, defining the offense of battery by a state prisoner on a nonconfined person pursuant to section 4501.5: "Every person confined in a state prison of this state who willfully uses any force or violence upon the person of any individual not a confined person therein is guilty of the crime of battery by a prisoner on a nonconfined person. . . ." The elements included that the person who used force or violence "was at the time confined in a state prison of this state." The trial courts special instruction stated:
"A confined person is one serving a sentence in a state prison for a criminal conviction, including any time in custody for a violation of parole."
The jury also was instructed that simple battery was a lesser included offense.
During deliberations, the jury asked the trial court for the "`four different descriptions of a confined person, battery of a nonconfined person." The trial court was not sure what they wanted but suggested rereading all the instructions to the jury. The parties agreed and defense counsel asked the trial court to include the lesser included offenses. Thereafter, the trial court informed the jury it was puzzled by the question, and asked if they wanted to hear the definitions of the charged crime and the lesser crime. A juror replied that they just wanted "to hear the laws over again, the legal definition" of the crime. The trial court reread the instructions, and subsequently complied with the jurys request for the written instructions to be given to them.
B. Analysis
In a criminal case, the trial court must instruct on the "principles of law relevant to the issues raised by the evidence [citations] and has the correlative duty `to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues. [Citation.]" (People v. Saddler (1979) 24 Cal.3d 671, 681.) The trial court need only give explanatory instructions when terms used in an instruction have a technical meaning peculiar to the law. (People v. McCleod (1997) 55 Cal.App.4th 1205, 1216.) To determine whether a term in an instruction has such a technical legal meaning, one must look to the statutory language defining the alleged crime. (Ibid.) If, however, a phrase "is commonly understood by those familiar with the English language and is not used in a technical sense peculiar to the law, the court is not required to give an instruction as to its meaning in the absence of a request." (People v. Bonin (1988) 46 Cal.3d 659, 698, overruled on another point by People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1; People v. Rowland (1992) 4 Cal.4th 238, 270-271.)
Marshall was convicted of violating section 4501.5, which states that every person "confined in a state prison of this state who commits a battery upon the person of any individual who is not . . . a confined person" is guilty of felony. Section 4504 defines "confined" as used in section 4501.5:
"[¶] . . . [¶] (a) A person is deemed confined in a `state prison if he is confined in any of the prisons and institutions specified in [Penal Code] Section 5003 by order made pursuant to law, including, but not limited to, commitments to the Department of Corrections or the Department of the Youth Authority, regardless of the purpose of such confinement and regardless of the validity of the order directing such confinement, until a judgment of a competent court setting aside such order becomes final.
"(b) A person is deemed `confined in a prison although, at the time of the offense, he is temporarily outside its walls or bounds for the purpose of serving on a work detail or for the purpose of confinement in a local correctional institution pending trial or for any other purpose for which a prisoner may be allowed temporarily outside the walls or bounds of the prison, but a prisoner who has been released on parole is not deemed `confined in a prison for purposes of this chapter." (§ 4504, italics added.)
Section 5003 lists the places over which the Department of Corrections has jurisdiction, including the California State Prison in Corcoran and such ". . . other institutions and prison facilities as the Department of Corrections or the Director of Corrections may be authorized by law to establish. . . ." (§ 5003, subds. (r), (t); People v. Holdsworth (1988) 199 Cal.App.3d 253, 256-257.)
CALJIC No. 7.36.1, which was not given to the jury, contains language nearly identical to section 4504 to define a person "confined in" a state prison, including the emphasized language that a prisoner who has been released on parole "is not deemed `confined in a prison." This is consistent with the principle that a parolee who commits a crime has not committed an in-prison offense unless he is in a prison at that time. (People v. Reed (1993) 17 Cal.App.4th 302, 307; People v. Holdsworth, supra, 199 Cal.App.3d at p. 260.)
Marshall contends the trial court had a sua sponte duty to define when someone is "confined in" a state prison because it has a technical meaning peculiar to the law, and the trial courts refusal to give CALJIC No. 7.36.1 prevented the jury from determining whether Marshall "was in custody as a result of an `order, or that the jury would conclude that he was a `prisoner who has been released on parole and therefore `not deemed "confined in" a prison for the purposes of section 4501.5." Marshall insists he was "certainly" a prisoner who had been released on parole, based on the notation in the section 969 file that he was released on parole in November 12, 1998. Marshall concludes the trial court essentially directed a verdict because it failed to instruct the jury that a person released on parole is not a confined person.
Marshalls argument is flawed and rebutted by the evidence. While Marshall was released on parole in November 1998, he subsequently was returned to custody and received at Corcorans SATF, where he continued to be in custody up to the time of the instant offense. There is no evidence that when he committed the instant offense on October 14, 1999, he was "released" on parole but remained in Corcoran for some unexplained reason.
Marshall contends the trial courts responses to the jurys questions during deliberations raised additional problems with the definitional instruction of being lawfully confined. The jurys questions, however, were addressed to the entirety of the instructions and not focused on the definition of being lawfully "confined in" a state prison. In addition, the parties concurred with the trial courts decision to reread all the instructions to the jury.
The trial courts instruction adequately defined the relevant phrase in this case.
III. Marshalls Competency
Marshall contends the trial court was obliged to suspend the criminal proceedings and refer the matter for an examination pursuant to section 1368 based on statements he made during the trial. Marshall claims his bizarre statements raised the "strong possibility" he was not mentally competent to stand trial.
A. Background
On January 18, 2001, during a recess on the first day of trial, the trial court asked Marshall if he wanted to waive a jury trial on the bifurcated matter of the prior conviction allegation of first degree burglary in Alameda County in 1997. Marshall wanted to ask a question but the trial court told him to wait until it explained the nature of the bifurcated proceeding. The trial court advised Marshall of the prior allegation and his right to a jury trial on the truth of the allegation. The following exchange occurred:
"[THE COURT:] . . . Did you have a question you wanted to ask me?
"[MARSHALL]: Yes, sir, the time that we chose this jury
"THE COURT: Yes.
"[MARSHALL]: — I dont remember the Court being — when it was decided upon, I never did hear them introduce as to my case. And then I keep hearing this stuff about Kings County Officer Brennan, and thats not what I was arrested for.
"THE COURT: Im sorry, I dont understand your question?
"[MARSHALL]: See, when I was convicted and tried and sent away, I didnt never — when I was arrested out of court, I didnt ever go to through a process of having — what do you call it? A — a — what I am saying is the trial never got dealt with. What happened is — what I remember — what I can recollect is when we came in here to discuss the jury, you called a recess, and I dont remember anything else, because I had come from Kings County Jail, but I was getting in so much trouble in here, they sent me to Corcoran. I was bussed out of this jail, you know, I wasnt arrested in another county. I was arrested here in Kings County, and I got transferred from here, the local city jail. I dont know where it is located at altogether, but I was bussed into that facility, but I was so much of a problem at that time, some like two years ago, that I was bussed to SATF, so I dont really understand how the trial is going, or how the case is becoming to a trial — a thing that
"THE COURT: Im sorry, Mr. Marshall, I dont understand your question. Maybe you could talk with your lawyer and maybe he can help clarify what your question is."
The record reflects a "brief discussion" was held between Marshall and his attorney.
Thereafter, defense counsel stated that Marshall would waive a jury trial on the prior conviction allegation, he had explained to Marshall that normally the trial court would hear the identity issue and the jury would hear the rest of the issue, and "for that reason and the reason of possible tactics too that we would have the Court decide the issue." Defense counsel further stated that Marshall had some questions related to "charges that he is not here for, that I cant answer for him, but that doesnt seem to be germane as to the question before the Court."
The trial court asked Marshall if he wanted to waive a jury trial for the allegation that he was previously convicted of first degree burglary in June 1997. Marshall replied, "Say again?" The trial court repeated its question.
"[MARSHALL]: I dont know. Do you know what happened to that case?
"THE COURT: No, I havent heard any evidence on that?
"[MARSHALL]: To the initial case itself?
"THE COURT: No, I do not know what happened. Nobody has presented any evidence on that issue yet.
"[MARSHALL]: So what I am asking you is when we had come to this conclusion
"THE COURT: What conclusion?
"[MARSHALL]: That this was a jury trial just based upon the fact that I jot [sic] into it with a senior officer and the county of corrections in this jurisdiction
"THE COURT: Whats your question?
"[MARSHALL]: My question was how is it — how is it that my case trial is excluded from this small case?
"THE COURT: I dont understand your question. Your case trial? You are on trial for assaulting two officers.
"[MARSHALL]: No, thats not what I came here for. My initial findings is for coming to court, period, was grand theft auto.
"THE COURT: Not in this court, sir.
"[MARSHALL]: I cannot mistake my memory.
"THE COURT: Well, I guess well have a trial before the jury. We cant seem to get anywhere."
The trial court called for a recess. Marshall did not make any additional comments, he did not testify at trial, and his attorney did not express any problems communicating with him.
B. Analysis
Marshall contends his statements to the trial court during the attempt to waive a jury trial for the bifurcated hearing provided substantial evidence that he was not competent to stand trial, and the trial court erred in not declaring a doubt as to his competence and suspending proceedings pursuant to section 1368, subdivision (a).
". . . A criminal defendant is incompetent and may not be `tried or adjudged to punishment if `as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner. (§ 1367, subd. (a).) Section 1368 mandates a competency hearing if a doubt as to a criminal defendants competence arises during trial. That may occur if counsel informs the court that he or she believes the defendant is incompetent (§ 1368, subd. (b)), or `[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. (§ 1368, subd. (a).) [& para;] Whether on motion of the defendant or sua sponte, the trial court is required to suspend criminal proceedings and hold a hearing to determine competency whenever substantial evidence of incompetence is introduced." (People v. Hayes (1999) 21 Cal.4th 1211, 1281.) "Substantial evidence is evidence that raises a reasonable doubt about the defendants competence to stand trial." (People v. Frye (1998) 18 Cal.4th 894, 952.) In determining whether there is substantial evidence of incompetence, a trial court must consider all of the relevant circumstances, including counsels opinion. (People v. Howard (1992) 1 Cal.4th 1132, 1164.)
". . . When the trial courts declaration of a doubt is discretionary, it is clear that `more is required to raise a doubt than mere bizarre actions [citation] or bizarre statements [citation] or statements of defense counsel that defendant is incapable of cooperating in his defense [citation] or psychiatric testimony that defendant is immature, dangerous, psychopathic, or homicidal or such diagnosis with little reference to defendants ability to assist in his own defense [citation]. [Citation.]" (People v. Welch (1999) 20 Cal.4th 701, 742.) Only where a doubt as to sanity may be said to appear as a matter of law or where there is an abuse of discretion may the trial judges determination be disturbed on appeal. (People v. Pennington (1967) 66 Cal.2d 508, 518; People v. Welch, supra, at p. 740.)
There is nothing in the trial record that suggested Marshall was unable to understand the nature of the proceedings or to assist counsel in conducting the defense in a rational manner. The trial court asked defense counsel to confer with Marshall in the midst of the exchange about his prior conviction. Counsel informed the trial court that Marshall wanted to know about an unrelated case, consistent with Marshalls statements to the trial court, and counsel never expressed a doubt as to Marshalls competence. Marshalls statements were consistent with his confusion about a prior case and were not indicative of a competency issue. (People v. Hayes, supra, 21 Cal.4th at p. 1282.)
Having no doubt regarding Marshalls competence during the trial, the trial court was not required by section 1368 to suspend the proceedings and conduct a hearing.
IV. Marshalls Right to a Jury Trial
Marshall contends the trial court violated his constitutional right to a jury trial on the truth of the prior conviction allegation because the trial court returned a "partial directed verdict" as to his identity and refused to submit that issue to the jury.
Marshall relies on Apprendi v. New Jersey (2000) 530 U.S. 466, and Ring v. Arizona (2002) 536 U.S. 584, and argues these cases signal the United States Supreme Court would, in the appropriate case, overrule its decision in Almendarez-Torres v. United States (1998) 523 U.S. 224, 230, 247. That case held that the fact of a prior conviction might be relied upon to increase a defendants punishment even though it has not been proven as an element of the offense in a trial by jury. (Apprendi v. New Jersey, supra, at pp. 501, 520-521 (conc. opn. of Thomas, J.) [repudiating Justice Thomass earlier concurrence in Almendarez-Torres]; see also Harris v. U.S. (2002) 536 U.S. 545, 563-564; Ring v. Arizona, supra, 536 U.S. 584, 588, overruling Walton v. Arizona (1990) 497 U.S. 639.)
Marshall asks this court to hold that these recent Supreme Court decisions compel the conclusion that excepting the fact of a prior conviction from the due process and Sixth Amendment protection defined by Apprendi and Ring is no longer constitutionally permissible. We decline to do so.
Apprendi did not abandon the distinction between the fact of a prior conviction, and other facts that are elements of the offense or increase the maximum penalty. To the contrary, it explicitly excepted the fact of a prior conviction from its holding. The court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Apprendi v. New Jersey, supra, 530 U.S. at p. 490.)
Nor did the decision in Ring abandon this exception. Ring held unconstitutional a state death penalty sentencing scheme that exposed defendant to the death penalty only if a judge sitting without a jury finds at least one aggravating factor. The court expressly limited its holding by stating that none of the aggravating circumstances the judge found "related to past convictions in [Rings] case; Ring therefore does not challenge Almendarez-Torres v. United States, [supra,] 523 U.S. 224 . . . ." (Ring v. Arizona, supra, 536 U.S. at p. 597, fn. 4.)
Section 1025, subdivision (c), provides that the question of whether defendant is the person who suffered the prior conviction is an issue to be tried by the trial court, not the jury, in a proceeding on a prior conviction allegation. In People v. Epps (2001) 25 Cal.4th 19, the Supreme Court cited Apprendi for the proposition that, "[t]he right, if any, to a jury trial of prior conviction allegations derives from [Penal Code] sections 1025 and 1158, not from the state or federal Constitution." (People v. Epps, supra, at p. 23.) Any argument that Epps is not a correct interpretation of federal constitutional law must be addressed to our state Supreme Court. As a court of intermediate appellate jurisdiction, we are bound by its decision that there is no state or federal constitutional right to jury trial on the fact of a prior conviction. (People v. Epps, supra, at pp. 23, 28; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
There is thus no constitutional right to a jury trial in this context, and no jury trial right was violated when the trial court decided the question of whether Marshall was the person named in the documentary evidence admitted to establish his prior conviction. (People v. Belmares (2003) 106 Cal.App.4th 19, 27-29; People v. Garcia (2003) 107 Cal.App.4th 1159, 1165.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: DIBIASO, Acting P.J. and BUCKLEY, J.