People v. Mixon

Page 817

275 Cal.Rptr. 817

225 Cal.App.3d 1471

The PEOPLE, Plaintiff and Respondent, v. Rodney J. MIXON, Defendant and Appellant.

No. B036192.

Court of Appeal, Second District, Division 7, California.

Nov. 27, 1990.

Review Denied Feb. 14, 1991.

Fiedler, Gardner & Derham, and Robert Derham, San Francisco, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Edward T. Fogel, Jr., Sr. Asst. Atty. Gen., John R. Gorey, Supervising Deputy Atty. Gen., and Ivy E. Kessel, Deputy Atty. Gen., for plaintiff and respondent.

FRED WOODS, Associate Justice.

We hold that when a defendant challenges a certification that he has regained mental competence (PEN.CODE, § 1372¹, subd. (a)(1)) and demands a hearing (§ 1372, subd. (c)), that the section 1369, subdivision (f) presumption ("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") applies at that hearing.

PROCEDURAL & FACTUAL BACKGROUND

In May 1984 defendant was charged with attempted murder (§§ 664/187), forcible rape (2 counts, § 261, subd. (2)), forcible oral copulation (§ 288a, subd. (c)), kidnapping (§ 207), burglary (§ 459), and felony assault (2 counts, §§ 245, subd. (a)(1), 245, subd. (a)). A gun use enhancement (§ 12022.5) was alleged as to all counts except a felony assault. Great bodily injury (§ 12022.7) was alleged with respect to the attempted murder, kidnapping, and burglary counts. By amended information it was alleged defendant had been convicted of a 1972 rape in California, a 1977 rape and kidnapping in California, and a 1983 robbery in Mississippi.

In August 1985, the trial court found defendant presently incompetent (§§ 1367, ² 1368) and ordered him committed to Patton State Hospital for evaluation and treatment. Thereafter defendant was transferred to Atascadero State Hospital. On January 7, 1987, the court (Superior Court Judge Eric Younger) was informed that the state hospital medical director had certified that defendant had regained mental competence (§ 1372, subd. (a)(1) ³). Defendant's trial counsel challenged the certification, moved for a formal hearing (§ 1372, subd. (c) ⁴), and requested the appointment of a doctor to examine defendant. The competency hearing began on October 23, 1987. Two psychiatrists, a psychologist, and lay witnesses testified. The trial court (Superior Court Judge Eric Younger) on November 2, 1987, found defendant competent to stand trial.

Defendant, having pleaded not guilty and not guilty by reason of insanity (§ 1016), waived jury. After numerous continuances, the guilt phase began May 18, 1988. On May 26, 1988, the trial court (Superior Court Judge Michael A. Tynan) found defendant guilty of all charges and found true all gun use and great bodily injury allegations. ⁵ Following the sanity phase, the trial court found defendant was sane at the time he committed the charged crimes. The court sentenced defendant to state prison for a term of 49 years.

Since defendant makes no general insufficiency of evidence claim, ⁶ we summarize the evidence. Our perspective favors the judgment. (People v. Barnes (1986) 42 Cal.3d 284, 303-304, 228 Cal.Rptr. 228, 721 P.2d 110.)

During the evening of December 13, 1982, 20-year-old Carol W. (victim) was alone in her Pasadena apartment. Around 8:30 p.m. hearing a knock at her door and expecting her boyfriend, she opened the door and saw a stranger, defendant. Defendant said he was looking for "Richard" and the victim suggested he check the rear apartment units. She shut the door and returned to watching television. About 10 minutes later there was another knock. Again thinking it was her boyfriend, the victim opened the door, saw the defendant, and when he asked to use her phone, said--although the phone was behind her--that she didn't have one. The defendant, pointing a gun at her, punched a hole through the closed screen door and said he'd shoot her if she didn't let him in. He entered and shut the door.

Defendant asked if anyone else was in the apartment and when the victim said "no," he nevertheless checked the entire apartment. He then asked her if she had any money and when she said she didn't he stated "if he couldn't take from [her], he was going to take of [her]."

At gunpoint defendant forced the victim to orally copulate him. He then twice had forcible vaginal intercourse with her, first while she lay on her back, and second, after having her turn over.

Following these acts defendant had the victim bathe, douche, dress, and "wipe down everything that he might have come in contact with." He then tied her feet, bound her hands behind her back, put her face down on the floor of the closet and closed the door. For about 30 minutes the victim heard defendant rustling about her apartment.

Defendant then reentered the closet and began strangling the victim with her scarf. Her left eye swelled, her nose bled, and she was about to pass out when something may have startled defendant and the victim managed to swing around and scream. He stopped strangling her.

Defendant untied the victim's feet, took her into the bathroom, cleaned the blood from her face, and at gunpoint forced her from the apartment, down the street, and into the passenger seat of his van. Defendant drove to a dark side street in the Altadena hills and parked.

After what seemed to the victim like two hours of talking, the defendant ordered her to lie down in the back of the van. Defendant then struck the victim on the back of her head, causing her to momentarily lose consciousness, bleed profusely, and feel excruciating pain. He returned to the driver's seat and drove off. But when he noticed the victim was still conscious defendant ordered her back to the passenger seat. She crawled forward to the passenger seat and, eyes closed from pain, leaned against the door.

Defendant stopped the van, got out, and opened the passenger door. The victim fell out. Defendant grabbed one of her arms and dragged her away from the van. He then shot her, once in the buttock and once in the back. The victim remained motionless, pretending to be dead, until she heard the van drive away.

The victim managed to sit up, crawl to a pole, pull herself up, and stumble to the street. When she couldn't get a passing car to stop, she crossed the street, staggered to a house and banged on the door.

The victim was hospitalized for 5 days and incapacitated for 15 days. When she returned home she discovered that her television, tuner, speakers, and jewelry box were missing. Her jewelry box was later recovered from defendant's home.

Defendant was arrested in April 1984 at Parchman State Penitentiary, Mississippi.

CONTENTIONS

Defendant contends:

1. At a restoration of competence hearing (§ 1372, subd. (c)) the burden of proof is on the state.

2. There is insufficient evidence of two rapes.

3. The trial court erred in separately punishing him for two rapes.

4. The trial court erred in imposing separate punishment for each sexual offense gun use (§ 12022.5).

5. The trial court violated section 654 by punishing him for both the sex offenses and for burglary.

6. The burglary great bodily injury enhancement must be stricken.

DISCUSSION

1. Defendant contends that at a restoration of competence hearing (§ 1372, subd. (c)) the burden of proof is on the state.

In finding that defendant's competence had been restored, the trial court (Superior Court Judge Eric E. Younger) relied upon the section 1369, subdivision (f) presumption and burden of proof: "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." The court stated, "I find for the purposes of this hearing that that burden of proof has not been met and that the defendant is competent.... The statutory presumption is the primary basis for my reasoning." Defendant contends that by imposing the burden of proof upon him, rather than upon the state, the trial court erred.

His argument is multi-pronged. He asserts: (a) even in an initial competency hearing (§§ 1368, 1369) the section 1369, subdivision (f) burden of proof violates due process; (b) the prosecutor should have had the burden of proof at the restoration hearing because the prosecutor was the moving party; (c) the statutory scheme (§§ 1367-1375.5) does not prescribe a burden of proof at a restoration hearing (§ 1372, subd. (c)); and (d) that at a restoration hearing due process requires that the state have the burden of proof.

We separately consider each assertion.

a. Defendant asserts that at an initial competency hearing (§ 1368) the section 1369, subdivision (f) burden of proof violates due process.

At his initial 1985 competency hearing, defendant sought to be found incompetent. His attorney commenced the hearing and called the first witness (§ 1369, subd. (b)(1)). The hearing concluded with defendant's success: he was found incompetent.

Defendant now claims that he should not have had the burden to prove his incompetence. Defendant having suffered no prejudice from the statutory burden, and having made no timely objection to it (Evid.Code, § 353), cannot complain of it. Moreover, the California Supreme Court has recently held section 1369, subdivision (f), as applicable at an initial competency hearing, to comport with due process. (People v. Medina (1990) 51 Cal.3d 870, 885-886, 274 Cal.Rptr. 849, 799 P.2d 1282.)

b. Defendant asserts the prosecutor should have had the burden of proof at the restoration hearing because the prosecutor was the moving party.

Defendant here relies upon a fundamental legal principle: "On all motions the burden is on the moving party...." (Scott v. Renz (1945) 67 Cal.App.2d 428, 431, 154 P.2d 738; accord, Heesy v. Vaughn (1948) 31 Cal.2d 701, 708, 192 P.2d 753; People v. Carson (1970) 4 Cal.App.3d 782, 785, 84...