Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD208287 David M. Gill and Cynthia A. Bashant, Judges.
NARES, J.
A jury convicted Leroy Willis, Jr. (Willis) of three drug-related offenses: (1) sale of cocaine base (count 1: Health & Saf. Code, § 11352, subd. (a)); (2) possession of cocaine base for sale (count 2: Health & Saf. Code, § 11351.5); and (3) possession of not more than 28.5 grams of marijuana (count 3: Health & Saf. Code, § 11357, subd. (b)). As to count 1, the jury found true an enhancement allegation that Willis sold cocaine base within the meaning of Penal Code section 1203.073, subdivision (b)(7).
All further statutory references are to the Penal Code unless otherwise specified.
Willis waived his right to a jury trial on the prior conviction allegations and following a bench trial, the court found true an allegation under Health & Safety Code section 11370.2, subdivision (a), that Willis had a prior drug-related conviction. It also found true allegations under section 667.5, subdivision (b), that Willis had seven prior prison term convictions.
The court then sentenced Willis to the upper term of five years in state prison for the current sale of cocaine base conviction (count 1), plus a consecutive three-year term under Health and Safety Code section 11370.2, subdivision (a), for the prior drug sale conviction and a consecutive one-year term under section 667.5, subdivision (b), for each of the seven prior prison term convictions, for a total determinate term of 15 years.
Willis appeals, contending (1) the court's failure to have him examined under sections 1368 and 1369 by a second psychiatrist and have a trial on the issue of his mental competence to stand trial deprived the court of jurisdiction for any of its subsequent actions in this case; (2) the court's denial of his motion under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) for discovery of the personnel records of San Diego Police Officers Esmeralda Tagaban and Maria Delgadillo violated Willis's federal constitutional rights to due process and a fair trial, and this court should review the documents the trial court refused to review; (3) the court violated his federal constitutional right to confrontation by admitting prison-prior packets in evidence during the bench trial on the prison prior allegations without the testimony of the law enforcement official who actually rolled the fingerprints in those packets and certified they were Willis's fingerprints; and (4) the court erred by imposing both the consecutive three-year enhancement under Health and Safety Code section 11370.2, subdivision (a), and the consecutive one-year enhancement under Penal Code section 667.5, subdivision (b), based on the same prior conviction for sale of cocaine base. We affirm.
FACTUAL BACKGROUND
A. The People's Case
On August 7 and 8, 2007, Officer Tagaban was part of a team of undercover police officers. She was assigned the task of purchasing narcotics.
In the evening on August 7, Officer Tagaban was working in the downtown area of San Diego. She approached Willis and asked him whether he had "any." Willis told her to "get away, " and she left.
The following evening, on August 8, Officer Tagaban was again working in the same area when Willis approached her, apologized for his actions the night before, and explained that he thought she was a police officer. Willis asked Officer Tagaban what she was looking for, and Officer Tagaban answered, "a twenty, " which is street slang for $20 worth of narcotics. Willis said, "Let me call my boy, " and made a phone call. Officer Tagaban testified she then heard Willis say, "I have a friend who wants a twenty, are you at the same place[?]" Willis ended that call, and he and Officer Tagaban began to walk down the street. During the walk, Willis stopped and inspected Officer Tagaban to see if she was carrying a radio transmitter. Also during the walk, Officer Tagaban told Willis she had enough money for "a forty, " and then gave him two prerecorded $20 bills.
Officer Tagaban testified that Willis took the $40, walked to a white Chevy Suburban in which a male was seated in the driver's seat, and entered the vehicle through the front right passenger door. In less than a minute, Willis exited the Suburban, walked a short distance, waved Officer Tagaban over with his hand, and gave her a 0.55 gram piece of cocaine base, which was a usable quantity that was consistent with the $40 purchase price.
Officer Tagaban gave the "bust" signal with her radio transmitter, the arrest team moved in, and two officers on bicycles detained Willis. When they conducted a patdown search, police officers found Willis was in possession of a cell phone, one of the prerecorded $20 bills (which was in his hand), and a marijuana cigarette.
Officer Delgadillo testified that when Officer Tagaban gave the signal she had purchased the cocaine base from Willis, she (Officer Delgadillo) responded to the scene in a police car. Two other officers had already detained Willis before she arrived. Officer Delgadillo handcuffed Willis, conducted another search, and found he had an additional $54 in his pocket and $150 in his wallet. Officer Tagaban returned to the area and positively identified Willis.
Raymond Rowe, a San Diego Police Department narcotics detective, testified that he worked undercover on May 22, 2001. After he and Jerry Moore, a drug transaction facilitator, watched as Willis made two drug sales, Moore took drug purchase money from Detective Rowe and approached Willis. Willis and Moore walked around the corner together. Moore returned about a minute later and handed Detective Rowe two rocks of cocaine base. Willis was arrested and was found in possession of the drug purchase money Detective Rowe had given to Moore.
B. The Defense
Willis testified that he withdrew $225 from his bank account on August 3, 2007, and of that amount he had $204 on his person when he was arrested. He indicated that on August 8 of that year, the day he was arrested in this matter, he went to his attorney's office, walked along the embarcadero, and purchased some food at a local restaurant. Willis also indicated that, as he was walking to a downtown sports bar that evening after dark, he saw two police officers riding up on bicycles at the same time that Officer Tagaban and the man she was with ran past him. Willis stated he was then handcuffed. He described the man he saw running as a Black male who weighed about 180 pounds and lived in a stairwell.
Willis stated he was falsely arrested and Officer Tagaban "[identified] the wrong guy." He acknowledged that Officer Delgadillo searched him and found what she said was a marijuana "roach."
C. The People's Rebuttal
William Griffin, a San Diego Police Department detective sergeant, testified he supervised the narcotics team during Officer Tagaban's drug purchase, and, using binoculars, he observed Willis and Officer Tagaban talking and walking together from as close as across the street, about 30 or 40 feet away. He indicated that when he briefly lost sight of them, he moved to a parking lot where he observed Officer Tagaban waiting by the street and Willis contacting the driver in a parked white Chevy Suburban. Detective Griffin observed Willis walk to the passenger side of the Surburban and get into the vehicle. He also observed that when Willis got out of the Suburban less than a minute later, he began walking back toward Officer Tagaban.
DISCUSSION
I. MENTAL COMPETENCE TO STAND TRIAL
Willis first contends the court's failure to have him examined by a second psychiatrist under sections 1368 and 1369 and to have a trial on the issue of his mental competence to stand trial, deprived the court of jurisdiction for any of its subsequent actions in this case. Specifically, citing Maxwell v. Roe (2010) 606 F.3d 561 (Maxwell), Willis contends that, following the court's May 6, 2009 determination he was mentally competent to stand trial, "there was substantial evidence of [his] inability to control himself and... cooperate with counsel, " and thus the court should have ordered a second section 1368 competency examination─as twice requested by defense attorney Heather Beugen─on the ground there was substantial evidence of a change of circumstances or there was new evidence that cast serious doubt on the validity of the prior finding of the defendant's mental competence. We reject these contentions.
A. Background
Willis was arraigned on the felony complaint in this matter in September 2007, and Albert Arena was appointed as his counsel in October 2007. On May 6, 2008, the day after he was arraigned on the information, Willis sought and was granted self-representation. Acting in propria persona, Willis issued subpoenas, filed and argued motions, and obtained expert witness funding.
On September 8, 2008, Willis represented himself in discussing pretrial motions. The next day, he requested representation by counsel, and the court granted his request. At the September 15, 2008 status conference, the court reappointed Arena as Willis's counsel.
The next day (September 16), during another status conference, the court ordered Willis removed from the courtroom for being verbally abusive.
On October 7, about three weeks later, Arena was relieved as Willis's counsel, and James Weintre was later appointed to represent Willis.
1. Section 1368 referral for mental competency examination
At a status conference on December 16, 2008, with Willis present, defense counsel Weintre asked the court for a referral under section 1368 (discussed, post) to have Willis undergo a mental competency examination. Weintre stated there had been "some issues in some of the attorney conferences" with Willis and alluded to a 2006 California Department of Corrections report that indicated Willis had been diagnosed with paranoid schizophrenia. Stating he was "not a professional in the area, " Weintre stated that it seemed to him that Willis's "attitude and behavior in court today... could be delusional or hallucinatory."
The court indicated it had "similar concerns" based on a letter it recently received from Willis. The court suspended criminal proceedings under section 1368 and ordered Willis to undergo a mental competency examination.
On March 6, 2009, while the criminal proceedings were still suspended, Weintre declared a conflict and was relieved. The court appointed Bernard Skomal as defense counsel, but Skomal was relieved on March 27 and the court appointed Michael Kern to represent Willis. Indicating it had spoken informally with Skomal, the court stated, "I will find good cause not to bring [Willis] up here at this point in time, based on my understanding of his─he has been very confrontational with people. He has obviously been confrontational with several lawyers."
Dr. Matthew Carroll, a forensic psychiatry clinic psychiatrist for the County of San Diego Health and Human Services Agency, interviewed Willis on April 21, 2009. In his report, Dr. Carroll indicated he reviewed the prosecutor's file, prison records provided by attorney Weintre, the forensic psychiatry clinic file, and jail psychiatry notes.
Dr. Carroll noted that Dr. David Naimark had seen Willis in February 2006, and he (Dr. Naimark) had spoken with Dr. Mark Kalish, who had been retained by Willis's defense counsel in a prior case to evaluate Willis, and both Dr. Naimark and Dr. Kalish opined that Willis was malingering the presence of psychosis. Dr. Carroll also indicated that Willis was also seen twice in 2001 by Judith Meyers, a psychologist, who noted that Willis suffered from polysubstance dependence and an antisocial personality disorder, he was likely malingering at that time, and was manipulative. Dr. Carroll's report indicated that, during the interview, Willis had cream on his face, which Willis said was to take care of witchcraft and demons.
Dr. Carroll opined "with reasonable medical certainty" that Willis was "malingering a mental illness for the purposes of avoiding going to trial." Dr. Carroll also concluded:
"I do not see any evidence that [Willis] suffers from a legitimate psychiatric illness other than Polysubstance Dependence. In my opinion, [Willis] can cooperate with his attorney in a rational manner if he chooses to. In my opinion, he does have the capacity to understand the nature of the proceedings against him. [¶] [Willis's] presentation is inconsistent with actual known mental illnesses. He has multiple records noting a history of significant drug problems and extremely manipulative behavior. I can see no evidence of any psychiatric illness that would cause him to present with his current symptoms." (Italics added.)
2. Trial court's finding that Willis was mentally competent to stand trial
On May 6, 2009, the court held a hearing to determine the issue of whether Willis was mentally competent to stand trial. Defense attorney Kern appeared with Willis, who was in a wheelchair. Kern and the prosecutor both stipulated to Dr. Carroll's qualifications and submitted on the findings contained in Dr. Carroll's report (discussed, ante).
The court found Willis was mentally competent to stand trial, stating that, "[b]ased on [Dr. Carroll's] report and the record that has been presented, it appears that it's appropriate to reinstate the [criminal] proceedings against [Willis]."
3. Willis's post-competency-finding behavior
On June 10, 2009, about one month later, the court heard defense counsel Kern's motion to be relieved and Willis's motion under People v. Marsden (1970) 2 Cal.3d 118 (Marsden) to replace Kern as his court-appointed counsel. After the prosecutor left the courtroom, Kern stated that he had "a conflict right now that appears to be irreconciliable" and indicated he preferred not to discuss specifics.
The court responded by expressing its concern that Willis was "manipulating the system just to delay things." The court explained:
"[Willis] didn't like his last lawyer. He had several Marsden hearings and when they were denied [he] insisted on representing himself. So he was granted that right and we got to trial and we were already with the jury and we had all the witnesses here and [Willis] decided that perhaps he was in over his head and he wanted an attorney after all. And I explained at that point if I reappointed an attorney he was likely to get the same attorney again. He said that was fine, he still thought he needed an attorney. So we reappointed an attorney, the same attorney came back in and [Willis] got very, very upset, started yelling and screaming and threatening that lawyer telling him he was going to kill him and some other things. So a decision was made independent of myself by I think the attorney panel that perhaps given the conflict between the other attorney and [Willis] a new attorney should be substituted in and that was you Mr. Kern." (Italics added.)
The court reiterated that it was "really concerned about [Willis] manipulating the system at this point" (italics added) and told Kern that "given the history of this case I need more than just irreconciliable differences."
Kern replied that "[t]he problem is when a client threatens me I am put in a position where if you threaten me now it will be difficult for me to look out for your best interest."
In response, the court expressed concern that "this is the second time that this has happened and [Willis] can't just threaten lawyers and get rid of them that way." The court indicated it would make sure there was adequate security in the courtroom and stated, "I don't feel at this point that [Willis] can manipulate the system by simply saying I am not going to get a Marsden so I will threaten my attorney and that way I will get rid of my attorney."
Willis accused Kern of being the manipulator and complained that Kern had not questioned another suspect and had not "spelled out any subpoenas" to have Willis's witnesses available. Citing "Strictland v. Washington, " Willis also complained that his "constitutional rights" were being violated by "ineffective assistance of counsel."
Strickland v. Washington (1984) 466 U.S. 668.
Eventually, the court agreed to relieve Kern and appoint a new defense counsel, but told Willis, "If you threaten the attorney [s]he will still be on the case. If you start carrying on... we will just take you out of the courtroom." (Italics added.) Thereafter, on June 15, 2009, the court appointed Beugen as Willis's counsel.
On June 26, 11 days later, defense counsel Beugen moved to be relieved, and the court treated the matter as a motion under Marsden, supra, 2 Cal.3d 118, for new appointed counsel. When Beugen indicated at the Marsden hearing that day that she preferred not to discuss the matter in detail, the court responded, "I can tell you I am not inclined to relieve you and I can tell you why, that is because [Willis] so far has threatened every lawyer he had and every lawyer has come in and asked to be relieved because of that and... I did tell [Willis] at the last hearing that this was his last attorney and that he better work with this attorney and cooperate with this attorney because I was not inclined to give him another one." (Italics added.)
Beugen stated that although Willis had not threatened her, he engaged in "profanity, obscenity, yelling, [and] screaming. She said Willis did not trust her and told her she could not defend him the way he wanted to be defended and, as a result of his "verbal abuse, " she had a conflict and could not give him the representation he needed.
The court replied, "[Willis] has gone through numerous lawyers and [with] each one we have had very similar situations and at this point I am getting the feeling that he is manipulating the system, that he wants to represent himself but he doesn't want to represent himself because he realizes when we got to the morning of trial when he was representing himself that he was in over his head."
Willis addressed the court and stated that he "might have been a little loud, " but he "didn't call [Beugen] no names or nothing, " and he "didn't scare her or nothing." He indicated he discussed Evidence Code section 1101, subdivision (b) with Beugen and stated he "gave [her] a case and overruled it."
The court then denied Beugen's request to be relieved as defense counsel.
On July 10, 2009, Beugen again moved to be relieved and submitted a declaration from her investigator, who stated that she and Beugen visited Willis in jail, and, during the conference that lasted one and one-half hours, Willis's demeanor was "erratic, " he made clear he did not trust Beugen, and he told Beugen he would sue her for ineffective assistance of counsel if she did not read at trial the opening statement Willis had written. In the alternative, Beugen requested that Willis's mental competency be evaluated.
The court denied Beugen's request that Willis's competency be evaluated again, stating:
"I have had a lot of time with [Willis], a lot of experience and he does a lot of things to get attention and I believe he is competent. I believe he understands what he is doing. I think that he manipulates quite a bit and I understand that he wants you to do certain things. He made that very clear with each of the lawyers he has had. That he has a definite direction he wants to go with the case, that he doesn't understand the rules of procedure which is why he decided on the morning of trial... that he was in over his head and needed some attorney to help him."
On July 30, 2009, Beugen requested a continuance of the trial date and again asked that Willis's competency be evaluated on the basis of two letters dated July 15 and July 28 that Willis submitted to the court. The court denied both requests, stating that Willis "was found to be competent, " Willis's letters were "not unusual" as he "ha[d] been sending these letters throughout the pendency of the case, " and, "[f]rankly, from my interaction with him I think he often is manipulating things." (Italics added.)
On August 3, 2009, following opening statements at trial, Willis again moved under Marsden for appointment of new counsel. The court denied the motion, finding that Willis's counsel (Beugen) was "doing an excellent job" and was "on top of" the issues Willis had raised.
The next day, August 4, following the testimony of Officer Tagaban, the court stated outside the presence of the jury that Willis was "muttering and sighing loudly" during defense counsel's cross-examination, saying "numerous times 'Why me' and 'She is enjoying it.'" The court cautioned Willis after Willis complained about Beugen's representation. During the Marsden hearing, Beugen indicated she and Willis were "having a conflict regarding strategic decisions, " and there was one item she believed would be prejudicial to Willis if admitted into evidence.
The court noted that "there are some serious conflicts going on between the two of you" regarding strategy and found Willis "has made it clear that he didn't think he could represent himself and... he still feels that way that he can't represent himself but he wants to have control over the proceeding." The court ordered a lunch recess, observing that Willis "is getting out of control" and the recess would "give him lunchtime to get under control." The court then denied Beugen's request to be relieved as Willis's counsel.
Following the lunch recess on August 4, 2009, the court again convened the in camera proceeding. Beugen indicated that deputies had escorted Willis through the door after the court ordered the recess and that a deputy was willing to tell the court about it. The deputy told the court that Willis "made a comment regarding getting out of prison, shooting [Beugen] in the head as she is leaving her office. On the way back he made comments about gassing her with urine and feces."
Beugen told the court, "I am scared of [Willis], " Willis stated he had given some questions to Beugen and then complained that he wanted a photograph admitted into evidence. Beugen replied, "For reasons I can't divulge I absolutely cannot enter [the photograph] into evidence."
The court denied the Marsden motion, stating:
"I warned [Willis] because he has a history of threatening his lawyers that I was not going to relieve a lawyer just because he threatens them and he [is] trying to manipulate the system. I understand that it has made it very difficult to represent him. I understand that the fact that he talks through cross-examination and... attempts to yell at [Beugen] when she is questioning witnesses makes it more difficult for her but that is his decision and I think we have gotten to a point where he is just playing the system and... I told him... this is his sixth attorney and he has made it very clear when he doesn't like what a lawyer does that his modus operandi is he then threatens the lawyer."
B. Applicable Legal Standards
"A defendant is presumed competent unless it is proved otherwise by a preponderance of the evidence." (People v. Ramos (2004) 34 Cal.4th 494, 507 (Ramos), citing § 1369, subd. (f).) A defendant is mentally incompetent "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.' " (People v. Marks (2003) 31 Cal.4th 197, 215, quoting § 1367, subd. (a).)
Section 1369, subdivision (f) provides in part: "It shall be presumed that the defendant is mentally competent unless it is proved by a preponderance of the evidence that the defendant is mentally incompetent."
Under both the federal and California Constitutions, as well as under California statutory law, a defendant may not be tried or sentenced while mentally incompetent. (People v. Dunkle (2005) 36 Cal.4th 861, 885; § 1367, subd. (a).)
"If a defendant presents substantial evidence of his lack of competence and is unable to assist counsel in the conduct of a defense in a rational manner during the legal proceedings, the court must stop the proceedings and order a hearing on the competence issue. [Citations.] In this context, substantial evidence means evidence that raises a reasonable doubt about the defendant's ability to stand trial." (Ramos, supra, 34 Cal.4th at p. 507; § 1368, subd. (a).)
Section 1368, subdivision (a) provides: "If, 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, he or she shall state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent. If the defendant is not represented by counsel, the court shall appoint counsel. At the request of the defendant or his or her counsel or upon its own motion, the court shall recess the proceedings for as long as may be reasonably necessary to permit counsel to confer with the defendant and to form an opinion as to the mental competence of the defendant at that point in time."
When (as here) a competency hearing has already been held and the defendant has been found competent to stand trial, a trial court need not suspend criminal proceedings to conduct a second competency hearing unless the evidence discloses a substantial change of circumstances or new evidence casts serious doubt on the validity of the prior finding of the defendant's mental competence. (People v. Taylor (2009) 47 Cal.4th 850, 864 (Taylor).) Furthermore, when a competency hearing has already been held, "the trial court may appropriately take its personal observations into account in determining whether there has been some significant change in the defendant's mental state. This is particularly true when, as here, the defendant has actively participated in the trial." (People v. Jones (1991) 53 Cal.3d 1115, 1153.)
A defense counsel's generic statements that the defendant is unable to assist with his defense is not in itself substantial evidence of the defendant's incompetence because it is insufficient to cast serious doubt on the results of an earlier competency determination. (People v. Jones, supra, 53 Cal.3d at p. 1153.) "[A] defendant must exhibit more than bizarre, paranoid behavior, strange words, or a preexisting psychiatric condition that has little bearing on the question of whether the defendant can assist his defense counsel." (Ramos, supra, 34 Cal.4th at p. 508.)
1. Standard of review
When, as here, a mental competency hearing has already been held and the defendant has been found competent to stand trial, "[w]e apply a deferential standard of review to a trial court's ruling concerning whether another competency hearing must be held. [Citation.] We review such a determination for substantial evidence in support of it." (People v. Huggins (2006) 38 Cal.4th 175, 220.) A reviewing court is in no position to appraise a defendant's conduct in the trial court as indicating incompetence, a calculated attempt to feign incompetence and delay the proceedings, or sheer temper. (See People v. Marks, supra, 31 Cal.4th at p. 220.)
C. Analysis
We reject Willis's contention that substantial evidence shows either a substantial change of circumstances after the court conducted the mental competency hearing and found Willis competent to stand trial or that there was new evidence that cast serious doubt on the validity of the court's competency finding. We hold that substantial evidence supports the court's decision to not conduct a second mental competency hearing under section 1368 because the lengthy record of Willis's abusive post-competency-finding behavior, viewed in light of his pre-competency-finding behavior and Dr. Carroll's report, shows that Willis's behavior following the May 6, 2009 competency finding was simply more of the same manipulative and abusive behavior he had engaged in prior to the competency hearing.
As already discussed, Willis's abusive behavior and his constant conflicts with counsel over defense tactics and strategy originally succeeded in delaying the trial, and resulted in the replacement of three court-appointed defense attorneys (Arena, Weintre, and Skomal) and the appointment of a fourth attorney (Kern).
At the May 6, 2009 mental competency hearing, the court based its finding that Willis was competent to stand trial in large part on Dr. Carroll's expert opinion that Willis was "malingering a mental illness for the purposes of avoiding going to trial, " and that Willis had the capacity to both understand the nature of the criminal proceedings against him and cooperate with his attorney "in a rational manner if he chooses to." Dr. Carroll noted that multiple records showed Willis had a history of significant drug problems and "extremely manipulative behavior" and opined that there was "no evidence of any psychiatric illness that would cause him to present with his current symptoms."
Substantial evidence shows that Willis's behavior following the court's May 6 competency finding, on which Willis now relies in contending the court erred by refusing to conduct a second competency hearing, was (as the Attorney General argues) "simply more of the same" malingering and extremely manipulative behavior that the court repeatedly indicated it had observed, and does not either constitute a substantial change of circumstances or cast serious doubt on the validity of the court's prior finding that defendant was competence. (See Taylor, supra, 47 Cal.4th at p. 864.)
As discussed, ante, when Kern asked to be relieved as defense counsel about one month after the court found Willis mentally competent, the court expressed concern that Willis was manipulating the proceedings by threatening his attorneys in order "get rid" of them. Although the court agreed to relieve Kern and eventually appointed Beugen on June 15, 2009, the court admonished Willis, "If you threaten the attorney [s]he will still be on the case, " and indicated that Willis would be removed from the courtroom if he became abusive.
The record shows that soon thereafter, Willis engaged in the same malingering and manipulative behavior in an effort to have Beugen, his fifth appointed attorney, relieved as a result of conflicts over defense tactics and strategy. As previously discussed, Beugen asked to be relieved on June 26, 2009, 11 days after she was appointed, complaining that Willis had engaged in profanity, obscenity, and screaming.
When this ploy to get rid of Beugen failed, Willis, who Dr. Carroll had found was able to cooperate with his counsel if he chose to do so, chose instead to begin a more aggressive campaign of repeated threats (discussed, ante) against Beugen.
Far from constituting either a substantial change of circumstances or evidence casting serious doubt on the validity of the court's finding that Willis was mentally competent (see Taylor, supra, 47 Cal.4th at p. 864), Willis's abusive post-competency-finding behavior was simply more of the same malingering and extremely manipulative behavior he had exhibited before the competency hearing.
Willis's reliance on Maxwell, supra, 606 F.3d 561, is unavailing as that case is clearly distinguishable. There, the defendant had a history of mental illness, he attempted suicide during trial, and "spent a substantial portion of the trial involuntarily committed to a hospital psychiatric ward." (Id. at p. 565.) Here, in contrast, Dr. Carroll concluded that Willis had the capacity to both understand the nature of the criminal proceedings against him and cooperate with his attorney in a rational manner if he chose to do so, multiple records showed Willis had a history of "extremely manipulative behavior, " and there was "no evidence of any psychiatric illness that would cause him to present with his current symptoms."
For all of the foregoing reasons, we conclude the court did not err in refusing to hold a second section 1368 competency hearing.
II. PITCHESS MOTION
Willis also contends the court's denial of his motion under Pitchess, supra, 11 Cal.3d 531, for discovery of the personnel records of Officers Tagaban and Delgadillo was an abuse of discretion and violated his federal constitutional rights to due process and a fair trial. He maintains this court should review the documents the trial court refused to review. We reject these contentions.
A. Background
In June 2008 Willis filed in propria persona a preprinted form Pitchess motion seeking discovery of the confidential personnel records pertaining to Officers Tagaban and Delgadillo. In his form memorandum of points and authorities, Willis indicated he sought information about any complaints made, or discipline imposed, against those officers for (1) "acts indicating or constituting racial prejudice, dishonesty, false arrest, illegal search and seizure, the fabrication of charges and/or evidence, or any act demonstrating lax character"; (2) "unnecessary acts of aggressive behavior, acts of violence and/or attempted violence, acts of excessive force and/or attempted excessive force, and acts demonstrating racial prejudice, or any act demonstrating a morally lax character."
In support of his Pitchess motion, Willis filed his generic, form declaration containing in paragraph No. 3 a preprinted assertion that, "I am informed and believe that from time to time persons give statements to [the San Diego Police Department] concerning officer(s) of The Department, alleging that said officers committed acts of dishonesty; acts constituting false arrest, illegal search and/or seizure, or the fabrication of charges and/or evidence; acts of aggressive behavior and/or aggressive force, and/or attempted excessive force; and acts involving a 'morally lax' character."
Willis's form declaration also set forth in paragraph No. 6 a preprinted assertion that "[a] substantial issue in the trial of this case may be illegal search and seizure by the officers involved due to the dishonesty, excessive and illegal use of force, and the attempted use of excessive and illegal use of force on the part of the officers involved."
The People opposed Willis's Pitchess motion, arguing that it was overbroad because it "request[ed] review for more types of misconduct, and insufficiently request[ed] specific categories of misconduct, than the allegations in the affidavit justif[ied]" and that Willis had failed to show good cause because his declaration "fail[ed] to make specific allegations as to the conduct of any officer" and thus his declaration "lack[ed] the specific and plausible facts required to support [his] motion."
At the hearing on the motion, Deputy City Attorney David Stotland, on behalf of the custodian of records, argued in opposition to Willis's Pitchess motion, "I don't see any facts in the declaration." Agreeing, the court denied the motion, indicating that Willis had failed to make the necessary showing of a specific and plausible foundation for the allegations of police misconduct.
B. Controlling Law
Section 832.7, subdivision (a) provides in part: "Peace officer... personnel records and records maintained by any state or local agency pursuant to Section 832.5, or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code."
Evidence Code sections 1043 and 1045 prescribe the procedures for discovery and require the moving party to file a written motion that includes an affidavit showing "good cause" for the disclosure sought and the "materiality [of the records] to the subject matter involved in the pending litigation." (Evid. Code, § 1043, subd. (b)(3).) These statutes codify the California Supreme Court's decision in Pitchess, supra, 11 Cal.3d 531, which permitted discovery of police officer files on a proper showing of materiality, relevance and necessity. (See City of Los Angeles v. Superior Court (2003) 111 Cal.App.4th 883, 889.)
The Pitchess statutory scheme recognizes that evidence contained in a law enforcement officer's personnel file may be relevant in a lawsuit, but that the officer "has a strong privacy interest in his or her personnel records and that such records should not be disclosed unnecessarily." (People v. Mooc (2001) 26 Cal.4th 1216, 1227 (Mooc).) To balance these competing interests, Pitchess and the implementing statutory scheme "require the intervention of a neutral trial judge, who examines the personnel records in camera... and orders disclosed to the defendant only those records that are found both relevant and otherwise in compliance with statutory limitations. In this manner, the Legislature has attempted to protect [a party's] right to a fair trial and the officer's interest in privacy to the fullest extent possible." (Mooc, supra, at p. 1227; City of San Jose v. Superior Court (1993) 5 Cal.4th 47, 53.)
1. Two-step Pitchess discovery process and the statutory affidavit requirement
Under the statutory scheme, discovery of a peace officer's personnel records involves a two-step process. (Mooc, supra, 26 Cal.4th at p. 1226.)
First, the defendant must file a written motion describing the type of records sought, supported by " '[a]ffidavits showing good cause for the discovery..., setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency identified has the records or information from the records.' " (Mooc, supra, 26 Cal.4th at p. 1226, quoting Evid. Code, § 1043, subd. (b)(3).) Although the standards for a showing of good cause are "relatively relaxed" under the statutory scheme (City of Santa Cruz v. Mun. Court (1989) 49 Cal.3d 74, 84 (City of Santa Cruz)), a defense declaration supporting a Pitchess motion must set forth a "specific factual scenario" establishing a "plausible factual foundation" for the allegations of police misconduct. (City of Santa Cruz, supra, at pp. 85-86; Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019 (Warrick).) In Warrick, the California Supreme Court clarified that to show good cause as required by Evidence Code section 1043, a defense declaration supporting a Pitchess motion "must propose a defense or defenses to the pending charges. The declaration must articulate how the discovery sought may lead to relevant evidence or may itself be admissible direct or impeachment evidence [citations] that would support those proposed defenses." (Warrick, supra, 35 Cal.4th at p. 1024.) The Warrick court explained that "[t]hese requirements ensure that only information 'potentially relevant' to the defense need be brought by the custodian of the officer's records to the court for its examination in chambers." (Ibid.)
Second, "if the trial court concludes the defendant has fulfilled these prerequisites and made a showing of good cause, the custodian of records should bring to court all documents 'potentially relevant' to the defendant's motion. [Citation.] The trial court 'shall examine the information in chambers' (Evid. Code, § 1045, subd. (b)), 'out of the presence and hearing of all persons except the person authorized [to possess the records] and such other persons [the custodian of records] is willing to have present' [citations]. Subject to statutory exceptions and limitations... the trial court should then disclose to the defendant 'such information [as] is relevant to the subject matter involved in the pending litigation.' " (Mooc, supra, 26 Cal.4th at p. 1226; Evid. Code, § 1045, subd. (a).)
2. Standard of review
A Pitchess motion for discovery of peace officer personnel records is "addressed solely to the sound discretion of the trial court, which has inherent power to order discovery when the interests of justice so demand." (Pitchess, supra, 11 Cal.3d at p. 535.) " 'A review of the lower court's ruling is subject to an abuse of discretion standard.' " (City of San Jose v. Superior Court (1998) 67 Cal.App.4th 1135, 1145.) "[T]he term judicial discretion 'implies absence of arbitrary determination, capricious disposition or whimsical thinking.' " (People v. Giminez (1975) 14 Cal.3d 68, 72.) "[D]iscretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered." (Ibid.)
C. Analysis
We conclude Willis has failed to meet his burden of showing the court abused its discretion when it denied his Pitchess motion. The record shows his form declaration in support of the motion does not comply with the legal requirement that it set forth a specific factual scenario establishing a plausible factual foundation for material allegations of misconduct by Officers Tagaban and Delgadillo. (See Evid. Code, § 1043, subd. (b)(3); City of Santa Cruz, supra, 49 Cal.3d at pp. 85-86; Warrick, supra, 35 Cal.4th at p. 1024.) On appeal, Willis contends he "offered a specific factual scenario wherein Officer Tagaban arrested the wrong person ([Willis]) and that person's ethnicity (African-American) featured in the mistake." However, Willis's declaration is a generic preprinted document that is devoid of any facts pertaining to this case and fails to specifically mention Officers Tagaban and Delgadillo.
Furthermore, as already noted, the California Supreme Court has made clear that to show good cause as required by Evidence Code section 1043, a defense declaration supporting a Pitchess motion must propose a defense or defenses to the pending charges in the case and must articulate how the discovery sought may lead to relevant evidence or may itself be admissible direct or impeachment evidence that would support those proposed defenses. (Warrick, supra, 35 Cal.4th at p. 1024.)
Here, Willis's supporting declaration fails to propose a racially based misidentification defense to the criminal charges pleaded against him, and fails to articulate how the discovery he was seeking might lead to relevant or itself be admissible and supportive of such a defense. In his declaration, Willis generically states in paragraph No. 3, on information and belief, that "persons" gave statements "concerning officer(s) of The Department, alleging that said officers committed acts of dishonesty; acts constituting false arrest, illegal search and/or seizure, or the fabrication of charges and/or evidence; acts of aggressive behavior and/or aggressive force, and/or attempted excessive force; and acts involving a 'morally lax' character." This portion of Willis's declaration does not set forth any facts that could be reasonably construed as pertaining to a racially based misidentification defense.
In paragraph No. 6 of his declaration, Willis does allude to a possible defense, but one that cannot be reasonably construed as a racially based misidentification defense. Specifically, he states that "[a] substantial issue in the trial of this case may be illegal search and seizure by the officers involved due to dishonesty, excessive and illegal use of force, and the attempted use of excessive and illegal use of force on the part of the officers involved." In this portion of his declaration, Willis proposes an "illegal search and seizure" defense, not a racially based misidentification defense.
In paragraph No. 7(G) of his declaration, Willis states, "Freedom of Information Act. On African-American arrested by Team 8 in the last 36 months." This statement does not propose a racially based misidentification defense, and it does not describe a specific factual scenario supporting a claim of officer misconduct.
Willis's contention that the court "should have exercised procedural leniency" in this case is unavailing. The Pitchess statutory scheme "carefully balances two directly conflicting interests: the peace officer's just claim to confidentiality, and the criminal defendant's equally compelling interest in all information pertinent to his defense." (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039.) As Willis's supporting declaration does not satisfy the minimum requirements set forth in the Pitchess statutory scheme, we decline to hold, in the interest of procedural leniency, that his failure to comply with those requirements is excused.
For the foregoing reasons, we conclude that because Willis's supporting declaration is devoid of any material facts and thus does not set forth a specific factual scenario that would plausibly support a racially based misidentification defense, the court did not abuse its discretion and did not violate Willis's federal constitutional rights to due process and a fair trial when it denied his Pitchess motion.
III. RIGHT TO CONFRONTATION
Willis next contends the court violated his federal constitutional right to confrontation by admitting prison-prior packets in evidence during the bench trial on the prison prior allegations without the testimony of the law enforcement official who actually rolled the fingerprints in those packets and certified they were Willis's fingerprints. We reject this contention.
A. Background
During the bench trial on the prior conviction allegations, Celeste Madruga, a forensic fingerprint analysis technician from the district attorney's office who had testified 37 times as a fingerprint identification expert, testified that she compared Willis's certified booking fingerprints, which were rolled on September 19, 2007, with the fingerprints contained in the two certified prison packets (exhibits Nos. 16 and 17) from the California Department of Corrections submitted under section 969b (discussed, post). All the prints matched.
When the prosecution moved to admit the prison packets into evidence, defense counsel objected on confrontation grounds because the person who rolled the fingerprints contained in those packets did not testify and thus was not available to be cross-examined. The court overruled the objection and later found true an allegation that Willis had one prior drug sale conviction (Health & Saf. Code, § 11370.2, subd. (a)) and also found true allegations that Willis had seven prior prison term convictions (§ 667.5, subd. (b)).
B. Sixth Amendment Confrontation Clause
The confrontation clause of the Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him." (U.S. Const., 6th Amend.) The United States Supreme Court discussed this constitutional guarantee in Crawford v. Washington (2004) 541 U.S. 36 and its progeny, including Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___ [129 S.Ct. 2527]. However, the contours of the confrontation clause remain elusive because the high federal court has not defined, for purposes of that clause, precisely who is a witness and what constitutes testimony. (See Melendez-Diaz, supra, 129 S.Ct. at pp. 2531-2532; Davis v. Washington (2006) 547 U.S. 813, 826-827; Crawford, supra, 541 U.S. at pp. 51-52.) Rather, the Supreme Court has described a "core class of 'testimonial' statements" that are covered by the confrontation clause, the various formulations of which include (1) " 'ex parte in-court testimony or its functional equivalent─that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially'[; (2)] 'extrajudicial... statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions'[; and (3)] 'statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.' " (Crawford, supra, 541 U.S. at pp. 51-52; Melendez-Diaz, supra, 129 S.Ct. at pp. 2531-2532.)
In Crawford, the Supreme Court explained that the confrontation clause applies to " 'witnesses' against the accused─in other words, those who 'bear testimony.' [Citation.] 'Testimony, ' in turn, is typically '[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.' " (Crawford, supra, 541 U.S. at p. 51.)
Most recently, in a case involving a prosecution for distributing and trafficking in cocaine, the United States Supreme Court analyzed a defendant's right to confront the preparer of a "certificate of analysis" (or affidavit) from a laboratory analyst that contained only the bare-bones statement that " '[t]he substance was found to contain: Cocaine.' " (Melendez-Diaz, supra, 129 S.Ct. at p. 2537.) Concluding that the affidavit was "functionally identical to live, in-court testimony, " the Supreme Court held that, for purposes of the confrontation clause, the analyst was a witness, the analyst's affidavit was "testimonial, " and thus the affidavit could not be admitted in lieu of in-court testimony unless the analyst was unavailable to testify at trial and the defendant had a prior opportunity to cross-examine the analyst. (Id. at p. 2532.) The Melendez-Diaz court reasoned that the prosecution's failure to present the analyst at trial for cross-examination prevented the defendant from examining "what tests the analyst[] performed, whether those tests were routine, and whether interpreting [the] results required the exercise of judgment or the use of skills that the analyst[] may not have possessed." (Id. at p. 2537.)
C. Analysis
We conclude the court properly received the certified prison-prior packets in evidence. In People v. Taulton (2005) 129 Cal.App.4th 1218 (Taulton), the Court of Appeal was presented with the question of whether section 969b prison records of prior convictions (such as those at issue here) were "testimonial" under Crawford, supra, 541 U.S. 36. (Taulton, supra, 129 Cal.App.4th at p. 1221.) Relying on Crawford, the Taulton court explained that business records are not "testimonial" because they "are prepared for many purposes but not to provide evidence in a potential criminal trial or to determine whether criminal charges should issue. One of the requirements for the admissibility of business records is that '[t]he writing was made in the regular course of a business....' [Citation.] The purpose of such a writing is to prepare a record of an act or event pertaining to a business, not to provide evidence." (Taulton, supra, at p. 1224.)
"Section 969b provides that 'records or copies of records of any state penitentiary, reformatory, county jail or city jail, or federal penitentiary in which [defendant] has been imprisoned' may be used to establish prima facie evidence of prior convictions, provided 'such records or copies thereof have been certified by the official custodian of such records....' The statute thus creates an exception to the hearsay rule." (Taulton, supra, 129 Cal.App.4th at p. 1222.)
Observing that a similar analysis should be applied to official records, Taulton held that the records referenced in section 969b, such as state penitentiary records, are not testimonial because they are "prepared to document acts and events relating to convictions and imprisonment, " and, "[a]lthough they may ultimately be used in criminal proceedings, ... they are not prepared for the purpose of providing evidence in criminal trials or for determining whether criminal charges should issue." (Taulton, supra, 129 Cal.App.4th at p. 1225.) Accordingly, the Taulton court concluded, section 969b records (such as those at issue here) are "beyond the scope of Crawford, " and thus the admission of such records does not implicate the confrontation clause. (Ibid.)
We agree with the holding and reasoning of Taulton, supra, 129 Cal.App.4th 1218. Accordingly, we reject Willis's contention that the court violated his federal constitutional right to confrontation by admitting the certified prison-prior packets in evidence during the bench trial on the prison prior allegations.
IV. ENHANCEMENTS
Last, Willis contends the court erred by imposing both the three-year prison term enhancement under Health and Safety Code section 11370.2, subdivision (a), and the one-year consecutive enhancement under section 667.5, subdivision (b), based on the same 2002 prior conviction for sale of cocaine base. Citing People v. Jones (1993) 5 Cal.4th 1142, he asserts the one-year prison prior enhancement (§ 667.5, subd. (b)) should be stricken. We reject these contentions.
A. Background
At sentencing, the court imposed as to count 1 (sale of cocaine base in violation of Health & Saf. Code, § 11352, subd. (a)) a consecutive three-year enhancement under Health & Safety Code section 11370.2, subdivision (a), based on the court's true finding that Willis had suffered on February 8, 2002 a prior drug-related conviction (in violation of Health & Saf. Code, §§ 11351.5 or 11352).
The court also imposed as to count 1 a consecutive one-year enhancement under section 667.5, subdivision (b), based on the court's true finding that Willis had suffered on that same date─February 8, 2002─his sixth prior prison conviction.
Defense counsel asked the court to strike the one-year prior prison conviction enhancement imposed under Penal Code section 667.5, subdivision (b), asserting that the same February 8, 2002 conviction on which that enhancement was based was also the basis for the three-year prior drug conviction enhancement imposed under Health & Safety Code section 11370.2, subdivision (a).
The court denied that defense request and imposed both enhancements based on the same February 8, 2002 drug-related prior conviction, stating, "I think in this particular case, it is appropriate to impose both, so I will impose both."
B. Analysis
The court used Willis's February 8, 2002 prior drug-related conviction to enhance his sentence for his current offenses under both Health & Safety Code section 11370.2, subdivision (a) and Penal Code section 667.5, subdivision (b). Willis's complaint that this was error, and his contention that the one-year prison prior enhancement imposed under Penal Code section 667.5, subdivision (b) should be stricken, are unavailing.
Health & Safety Code section 11370.2, subdivision (a) provides that, if a defendant has been convicted of specified drug-related crimes, the court shall impose "a full, separate, and consecutive three-year term for each prior felony conviction" of the specified drug-related crimes, "whether or not the prior conviction resulted in a term of imprisonment." Under the express language of that subdivision, the consecutive three-year enhancement "shall" be imposed "in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code ." (Health & Saf. Code, § 11370.2, subd. (a), italics added.)
Section 667.5, subdivision (b), directs the trial court at sentencing to impose (under conditions that were met in this case) a consecutive "one-year term for each prior separate prison term served for any felony."
In People v. Powell (1991) 230 Cal.App.3d 438, 441 (Powell), the Court of Appeal determined that the Legislature's intent in enacting Health & Safety Code section 11370.2 was that a single prior conviction of one of the drug-related offenses specified therein can serve as the basis for an enhancement under both that section and section 667.5, subdivision (b). The Powell court held that Health & Safety Code section 11370.2 creates an express exception to the prohibition against double punishment codified in section 654. (Powell, supra, 230 Cal.App.3d at p. 442.) In so holding, the Court of Appeal explained that "the specific legislative intent to impose additional punishment for certain drug offenses, expressly stated in [Health & Safety Code] section 11370.2, prevails over the general legislative intent against double punishment expressed in Penal Code section 654." (Powell, at p. 441.)
Section 654, subdivision (a) provides in part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." Section 654 "precludes multiple punishment for a single act or omission, or an indivisible course of conduct." (People v. Deloza (1998) 18 Cal.4th 585, 591.)
In People v. Gokey (1998) 62 Cal.App.4th 932, 936 (Gokey), the Court of Appeal stated it "agree[d] with Powell's result, but for a different reason." Quoting the California Supreme Court's opinion in People v. Coronado (1995) 12 Cal.4th 145 (Coronado), for the proposition that, "[b]y its own terms, section 654 applies only to an 'act or omission' made punishable in different ways by different statutes, " the Gokey court explained that "[s]entence enhancements for prior prison terms are based on the defendant's status as a recidivist, and not on the underlying criminal conduct, or the act or omission, giving rise to the current conviction. [Citations.] Thus, '[b]ecause the repeat offender (recidivist) enhancement imposed here [(§ 667.5, subd. (b))] does not implicate multiple punishment of an act or omission, section 654 is inapplicable.' " (Gokey, supra, 62 Cal.App.4th at p. 936.) Applying the reasoning and holding of Coronado, Gokey further explained that, "[b]ecause both [Health & Safety Code] section 11370.2 and Penal Code section 667.5, subdivision (b), impose additional punishment for the status of the offender, and not the acts or omissions underlying the current offense, Penal Code section 654 is inapplicable to the determination whether one prior conviction may provide the basis for two enhancements under the statutes." (Gokey, supra, at p. 936.) The Gokey court concluded that Powell "correctly held that the Legislature intended that an enhancement under [Health and Safety Code] section 11370.2 should be imposed in addition to an enhancement under Penal Code section 667.5." (Gokey, at p. 937.)
We agree with the holdings in both Powell, supra, 230 Cal.App.3d 438, and Gokey, supra, 62 Cal.App.4th 932, and conclude that under Health & Safety Code section 11370.2 a single prior conviction of one of the drug-related offenses specified therein can serve as the basis for an enhancement under both that section and section 667.5, subdivision (b).
Willis's reliance on People v. Jones, supra, 5 Cal.4th 1142, is misplaced for reasons explained in Gokey. The issue presented in Jones was "whether the electorate intended that one prior conviction could serve as the basis for sentence enhancements under both [section 667], which provides for a consecutive five-year enhancement for a prior conviction for a serious felony, and [section 667.5, subdivision (b)]." (Gokey, supra, 62 Cal.App.4th at p. 936.) "Using familiar and fundamental principles of statutory construction, the [Jones] court determined that the language of [section 667] was ambiguous whether a single prior conviction could serve as the basis for two enhancements under both section 667 and section 667.5, subdivision (b). [Citation.] Because '... the voters did not specify that enhancements under sections 667 and 667.5 were both to apply to the same prior offense' the Supreme Court held that enhancements under both [sections 667 and 667.5] for the same offense were impermissible." (Gokey, supra, at pp. 936-937.) Gokey further explained that, "[i]n contrast, Health and Safety Code] section 11370.2 is decidedly unambiguous. The statute specifically states that the enhancement for a prior drug conviction is to be imposed 'in addition to any other punishment authorized by law, including Section 667.5 of the Penal Code.' " (Gokey, at p. 937.)
For all of the foregoing reasons, we reject Willis's contention the court erred by imposing both the three-year prison term enhancement under Health and Safety Code section 11370.2, subdivision (a), and the one-year consecutive enhancement under Penal Code section 667.5, subdivision (b).
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, Acting P. J., AARON, J.