Filed 11/14/14 P. v. Crossno CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E058142
v. (Super.Ct.No. FSB1200584)
PRICE CROSSNO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Kyle S. Brodie,
Judge. Affirmed with directions.
Susan L. Ferguson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Kimberley A.
Donohue, and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
1 I
INTRODUCTION
A jury convicted defendant Price Crossno of first degree burglary (Pen. Code,
§ 459;1 count 1), attempted indecent exposure (§§ 664, 314, subd. (1); count 2), and
indecent exposure (§ 314, subd. (1); count 3). The trial court sentenced defendant to six
years in prison.
Defendant contends insufficient evidence supported his convictions for attempted
indecent exposure and burglary. He also contends the trial court erred in failing to
instruct the jury sua sponte on the abandonment defense and in finding there was
insufficient evidence to declare a doubt as to defendant’s competency. Defendant further
asserts that his sentence for attempted indecent exposure should have been stayed under
section 654 and the trial court miscalculated his presentence custody credits. The People
add that the abstract of judgment should be modified to reflect the trial court’s order that
defendant must register as a sex offender under section 290, subdivision (c).
We conclude there was sufficient evidence to support defendant’s convictions for
attempted indecent exposure and burglary, and there was no prejudicial error in the trial
court not instructing on abandonment. We also conclude there was substantial evidence
supporting the trial court’s finding that defendant was competent to stand trial. The trial
court, however, erred in not staying defendant’s concurrent sentence for attempted
indecent exposure (count 2) under section 654. In addition, defendant’s presentence
1 Unless otherwise noted, all statutory references are to the Penal Code.
2 custody credits were miscalculated and therefore must be increased to 438 days. Also,
the abstract of judgment must be amended to state that defendant is required to register as
a sexual offender under section 290, subdivision (c). In all other regards, the judgment is
affirmed.
II
FACTS
A. July 15, 2011, Indecent Exposure Incident
Around 6:00 a.m., on July 15, 2011, Cynthia Dunham began working at her office
on the second floor of the Centennial Plaza building, in Redlands. After about 20
minutes, Dunham went to the women’s restroom, which was located down the hall from
Dunham’s office and was shared by others in the building. The women’s bathroom was
adjacent to the men’s restroom. While alone inside the women’s restroom, Dunham
heard someone enter the men’s restroom, flush the toilet, turn on the faucet, and then
open the door. Dunham did not hear the door of the men’s restroom close. Dunham was
alarmed because only women normally worked at her office building at such an early
hour. Occasionally homeless people used the bathrooms by slipping in through an
unlocked door.
Dunham waited in the women’s restroom, hoping to hear the person in the men’s
restroom leave. After several minutes, Dunham decided she needed to return to work and
could not wait any longer. As Dunham exited the women’s restroom and walked past the
men’s restroom, she noticed the men’s restroom door propped open. Dunham saw
defendant standing in the men’s restroom doorway with his pants lowered, exposing his
3 genitals, and with a “seductive” look on his face. Dunham quickly looked away and
rushed down the hallway to her office. Dunham locked her office door and called 911.
Dunham was alone in her office. By the time officers arrived about 20 minutes later,
defendant had left.
Dunham testified at trial that, in February 2012, Redlands Police Detective
Cynthia Gourlay discussed the July 2011 incident with Dunham and Dunham provided a
description of defendant. A few days later, Gourlay contacted Dunham again and told
her defendant had been apprehended. Gourlay took Dunham to the location where
defendant was detained and Dunham identified him. Dunham also identified defendant
in court.
Gourlay testified that during her investigation of the July 2011 bathroom incident,
Dunham told her in February 2012, that defendant had returned to the building. At that
point, defendant had not yet been identified as the perpetrator. A day later, Gourlay met
with the building cleaning crew supervisor, who told Gourlay a backpack had been left in
one of the locked office suites. Gourlay found papers addressed to defendant in the
backpack. Gourlay then searched a database to get a physical description of defendant.
Defendant’s driver’s license provided a description of him, which was similar to the
description Dunham had provided law enforcement.
About five days later, Gourlay heard on the police radio that police officers had
detained defendant. Gourlay immediately told the officers she was investigating
defendant and transported Dunham to where defendant was located for an in-field
identification. Dunham identified defendant as the perpetrator of the July 2011 indecent
4 exposure incident. Defendant was arrested. Gourlay interviewed defendant regarding the
indecent exposure incident. Defendant admitted he exposed himself to Dunham at the
Centennial Plaza.
B. February 7, 2012, Attempted Indecent Exposure Incident
On February 7, 2012, Brandi Varvel, who was 21 years old, was living at
Kimberly Apartments in Redlands, with her mother, April Varvel, and brother, Adam
Varvel, who was 18 years old. While sleeping in her bedroom, Brandi awoke to the
sound of defendant stepping on a bag of chips on her bedroom floor. Brandi testified at
trial that she saw defendant standing in her room, sucking a lollypop, staring at her.
Brandi asked defendant what he was doing. Defendant did not respond. He gestured at
his pants. Brandi testified he was not wearing a belt. Brandi asked him again what he
was doing. Defendant replied, “I’m going to show you,” as he reached for the buttons on
his pants and unbuttoned the first button. Brandi asked defendant, who are you? He did
not reply. Brandi again asked defendant what he was doing. Defendant said he was
going home and casually walked out of Brandi’s bedroom.
Brandi testified that, while this was happening, she was thinking, “[w]ho is he and
why is he in my house.” Brandi feared what defendant might do. She was scared but did
not scream. After defendant left, Brandi texted her mother, not realizing her mother had
not yet left for work. When Brandi was about to send her mother the text, her mother
walked down the hallway. Brandi burst into tears and told her mother what had
happened. Brandi’s brother, Adam, overheard the conversation. April also told Adam
what had happened.
5 Brandi called her father, Charles Varvel, a retired police officer, who lived about
one mile away. Within minutes of Brandi telling him about the incident, Charles drove to
Brandi’s apartment. On the way, Adam called Charles and said he had just talked to
defendant in the hallway of the Kimberly Apartments complex. Defendant had asked
Adam what was the quickest way to leave the building. Adam described defendant to
Charles. Adam followed defendant across the street to an Albertson’s grocery store.
Charles went directly to Albertson’s, where Adam and defendant were. Charles met
Adam inside the store. Adam pointed out defendant to Charles. Charles confronted
defendant in the store. While holding a gun, Charles told defendant he was under arrest
and to get down on his knees. Defendant “danced around a little bit,” yelling at Charles.
As Charles grabbed defendant’s jacket to put a choke hold on him, defendant pulled away
and ran out of the store. While Charles was chasing defendant, Redlands Police Officer
Jeff Spurlock pulled up in front of defendant and took him into custody.
Redlands Police Officer Carissa Jaquish was dispatched to Kimberly Apartments
while Spurlock was detaining defendant. Jaquish testified she transported Brandi and
Adam to where defendant was detained. Brandi identified defendant as the perpetrator
and Adam identified defendant as the person he saw in the hallway, outside their
apartment. Jaquish testified Brandi told her defendant had fidgeted with his jeans zipper.
Jaquish did not recall Brandi saying defendant touched a jeans button or that the top
button was undone. Brandi testified she recalled telling Jaquish defendant had fidgeted
with his jeans zipper and was about to unbutton his pants.
6 Jaquish interviewed defendant at the police department the same day he was
apprehended. During the taped interview, defendant said he was at Kimberly Apartments
that day because he was looking for his wife, whose name is Kimberly. They have a son
and daughter. Defendant said he thought he saw Kimberly with another daughter but he
was not sure because his life had been so chaotic recently. Defendant did not know if he
was married to Kimberly or separated. Defendant attempted to explain: “I’ve had
several girlfriends, several um relationships where we had babies and uh, I’m just . . . I’m
not sure of anything.” When asked if Kimberly was expecting defendant to come over
that morning, defendant said: “I think before that. Uh, somebody was before then. But,
uh I didn’t do the right thing I guess. [¶] . . . [¶] Um, I had, I, I’ve seen um, I mean I
talked to a girl but I don’t know for sure if she was Kimberly. I’m not sure, ‘cause uh,
she looks different all the time. Yeah. [¶] . . . [¶] I know that sounds crazy. [¶] . . . [¶]
And I’m not crazy, swear to god ma’am.”
When Jaquish asked defendant if he knew where Kimberly Apartments was,
defendant responded, “Um, she can, she can change her color of hair and makeup and
she, I mean, women are very, very um, . . . [¶] . . . [¶] they can look very different.”
When asked how he entered the Kimberly Apartments building, which was restricted to
residents only, defendant said he entered a door that was open. He did not know which
apartment was Kimberly’s. Defendant added, “I knew her in uh, Riverside. She was the
manager of Canyon Crest. [¶] . . . [¶] I don’t think this is the same Kimberly is that
Kimberly that uh, you know Kimberly that owns Kimber that had Kimberly Crest, she’s
passed away a long time ago right?” When Jaquish asked if defendant was talking about
7 his wife, defendant replied: “My wife she uh, she was part manager yeah so, she might
have manager . . . might be a manager I don’t know. Or she has a house some where I
don’t know. ‘Cause I didn’t see . . . .”
Jaquish asked defendant why he entered Kimberly Apartments. He said, “Just
walk through there see if see if she was in there or anybody living there. ‘Cause if they
try to meet uh give people I know or see, see where some people of my family has, I’d
like to be with my family.” When asked if defendant knew anyone there or was going to
a particular apartment, defendant said, “No. I just I thought I’d walk through and I was
cold.” After entering the Kimberly Apartment building, defendant knocked on a few
doors. No one opened their door. Defendant denied going inside anyone’s apartment.
Defendant said he was trying to find his wife because her parents have money and she
sold his car.
After Jaquish told defendant she knew he entered someone’s apartment, defendant
said, “Okay. I, I that, that one I heard someone say come in,” after he knocked on the
door, so he went in. Defendant said that, after entering, he took some change and left.
Defendant added that there was a girl in the apartment. He did not know her. He said,
“She could be my daughter for all I know, so I’s like, that’s why I left.” Defendant told
Jaquish he went inside because he thought he heard his daughter talking or “it could be a
fake to get me in trouble . . . I could just being set up ma’am, but I didn’t do anything.”
The girl said to defendant, “Do I know you or who are you and uh, I didn’t tell her ‘cause
I what I’m thinkin’ is uh, I mean I felt uncomfortable at that point.” Defendant believed
the girl could have been his daughter.
8 Defendant said nothing happened in the apartment. Defendant thought the girl
said something sexual. He was there for only a second or two. “I don’t think it was all
just my mind, put all in my mind, like the psychiatrist said. I think the psychiatrist was
wrong.” Defendant believed the girl was leading him on, because of “the way her face
was, her clothes where she had her top like this the way uh she was sitting up in the bed
and she kept saying come here. . . .” Defendant did not know the girl. Defendant
believed she was setting him up. The door was open, he was told to come in, and he
walked in. Defendant said that, although the girl was very sexual, defendant was not
interested in her because she was too young. Defendant denied motioning toward his
pants or exposing himself to the girl.
Officer Gourlay also interviewed defendant. Gourlay asked defendant if Brandi
asked him to show her his penis. Defendant denied she did and denied he was sexually
aroused when he entered Brandi’s room but conceded he was “[m]entally stimulated a
little bit” and “my mind might been thinking that while I was uh going down the hall
. . . .” Defendant said it was “implied” Brandi was “coming onto” him. Defendant
denied he started unbuttoning his pants. Defendant said he probably went into Brandi’s
apartment because he wanted to have sex. He also wanted to talk to his wife and be
loved by her. Defendant told Gourlay he was sexually frustrated and was hoping to have
sex with someone in the apartment. Defendant said he heard the girl in the apartment say
to come in when he knocked. He walked out of the apartment because he feared being
shot. Defendant wanted to have sex with Brandi if she was willing and not too young.
Defendant lost his sexual desire when she asked who he was and what he was doing.
9 Defendant said “that kind of shot me like for a loop.” After defendant left the apartment,
a young man followed defendant and told defendant something had happened to the
man’s sister in her apartment. Defendant wanted to get out of the building.
Defendant admitted he left his backpack inside the building at the Centennial
Plaza. He said he sometimes spent the night there. Defendant also admitted he showed
Dunham his penis in July 2011.
III
SUFFICIENT EVIDENCE OF ATTEMPTED
INDECENT EXPOSURE
Defendant contends his conviction for attempted indecent exposure was not
supported by substantial evidence. We disagree.
“‘In assessing the sufficiency of the evidence, we review the entire record in the
light most favorable to the judgment to determine whether it discloses evidence that is
reasonable, credible, and of solid value such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is
unwarranted unless it appears “that upon no hypothesis whatever is there sufficient
substantial evidence to support [the conviction].” [Citation.]’ [Citation.]” (People v.
Wilson (2010) 186 Cal.App.4th 789, 805.) We presume in support of the judgment the
existence of every fact the trier could reasonably deduce from the evidence. (People v.
Virgil (2011) 51 Cal.4th 1210, 1263.)
Section 314, subdivision (1), provides in part that “[e]very person who willfully
and lewdly . . . [¶] [e]xposes his person, or private parts thereof, . . . in any place where
10 there are present other persons to be offended or annoyed thereby,” is guilty of indecent
exposure. While the first offense is a misdemeanor, all following offenses are felonies.
(§ 314, subd. (1).) Section 664 discusses the punishment provided for attempted
offenses, and applies to “[e]very person who attempts to commit any crime, but fails, or
is prevented or intercepted in his perpetration . . . .” “In general, under California law,
‘[a]n attempt to commit a crime is itself a crime and [is] subject to punishment that bears
some relation to the completed offense.’ [Citation.]” (People v. Toledo (2001) 26
Cal.4th 221, 229.) There are two elements to an attempted crime: (1) specific intent to
commit the crime, and (2) a direct but ineffectual act done to complete it, with the reason
behind the act’s incompletion being immaterial. (Id. at p. 229.)
“Generally, a conviction for indecent exposure requires proof of two elements:
‘(1) the defendant must willfully and lewdly expose the private parts of his person; and
(2) such exposure must be committed in a public place or in a place where there are
present other persons to be offended or annoyed thereby.’ [Citation.]” (People v.
Carbajal (2003) 114 Cal.App.4th 978, 982.) The terms “willful” and “lewdly” are
construed by the Supreme Court to mean intended for direct public attention “‘for
purposes of sexual arousal, gratification, or affront.’” (People v. Honan (2010) 186
Cal.App.4th 175, 181.)
In the instant case, there was substantial evidence defendant willfully and lewdly
attempted to expose himself. Such evidence included defendant’s statements that, before
entering Brandi’s bedroom, he was “mentally stimulated” and wanted to have sex with
somebody, and do “other things, too.” After defendant entered Brandi’s room and Brandi
11 asked defendant several times, “Who are you,” and “What are you doing,” he responded,
“I’m going to show you,” pointed to his pants, and began unbuttoning his pants. “When
a defendant acts with the requisite specific intent . . . and performs an act that ‘go[es]
beyond mere preparation . . . and . . . show[s] that the perpetrator is putting his or her plan
into action’ [citation], the defendant may be convicted of criminal attempt.” (People v.
Toledo, supra, 26 Cal.4th at p. 230.) Here, there was evidence defendant went beyond
mere preparation by beginning to unbutton his pants in front of Brandi. We therefore
conclude the evidence was sufficient to support defendant’s conviction for attempted
indecent exposure.
IV
SUFFICIENT EVIDENCE OF BURGLARY
Defendant argues there was also insufficient evidence to support his burglary
conviction because he lacked the requisite felonious intent when entering the victim’s
apartment.
Section 459 provides that any person, “who enters any house, room, apartment,
. . . with intent to commit . . . any felony is guilty of burglary.” Section 460, subdivision
(a), provides, “[e]very burglary of an inhabited dwelling house, . . . is burglary of the first
degree.” The term “inhabited” means “currently being used for dwelling purposes,
whether occupied or not.” (§ 459.)
Here, defendant entered the Varvels’ apartment uninvited. The apartment was
inhabited by Brandi, her mother, and Brandi’s younger brother. Defendant then entered
Brandi’s bedroom while she was sleeping. Defendant argues he lacked the requisite
12 intent under section 459 to be convicted of burglary since he did not intend to expose
himself upon entering the apartment. However, the court in People v. Sparks (2002) 28
Cal.4th 71, 73 (Sparks), held that the defendant did not need the requisite felony intent
before entering the victim’s home to sustain a burglary conviction if that intent was
formed before entering a room within the victim’s dwelling. The intent to commit
burglary can be formed after entering a building, but before entering the room where the
defendant intends to commit the felonious act. (Id. at p. 82.)
Defendant argues that he did not enter either Brandi’s apartment or bedroom with
the intent to expose himself. Instead, he was looking for his wife. However, defendant
admitted to Gourlay and Jaquish that he entered the apartment because he wanted to have
sex and was “mentally stimulated” once he was inside the apartment and before he
entered Brandi’s bedroom. Defendant also said he was hoping to have sex with someone
in the apartment. He stated that, since Brandi’s bedroom door was open, he entered her
room looking for a sexual partner because he was sexually frustrated. Under Sparks,
entering a bedroom with felonious intent is sufficient to support a burglary conviction.
(Sparks, supra, 28 Cal.4th at p. 88.)
Defendant argues that unlike in People v. Rehmeyer (1993) 19 Cal.App.4th 1758
(Rehmeyer), in the instant case there was insufficient evidence of intent to commit
indecent exposure because he was not naked when he entered the Varvels’ apartment or
Brandi’s room. In Rehmeyer, the court held that there was sufficient evidence to affirm
the defendant’s multiple counts of residential burglary and felony indecent exposure. (Id.
at p. 1767.) The victim in Rehmeyer, awoke to find the uninvited defendant in her
13 bedroom doorway, nude, with his genitals obscured by furniture. (Id. at p. 1763.) On
appeal the defendant argued in support of his contention that he did not intend to show
his genitalia and that the victim had not seen his genitals. The court in Rehmeyer held
that defendant’s arguments were based on speculation and conjecture. (Id. at p. 1765.)
There was no evidence to indicate that the defendant purposefully hid his genitals from
view from the victim. (Id. at p. 1765.) The court concluded that, because of the
defendant’s history of lewd behavior and indecent exposure, it was reasonable for the
jury to infer from the totality of circumstances that the defendant intended to expose
himself. (Id. at pp. 1765-1766.)
Likewise, in the instant case, defendant had a history of committing indecent
exposure. Although he was not naked, defendant conceded that, before entering Brandi’s
room, he was “mentally stimulated,” sexually frustrated, and wanted to have sex. There
was also evidence that after defendant entered Brandi’s room, Brandi awoke to discover
defendant, uninvited, in her bedroom, staring at her. When she asked defendant
repeatedly, “Who are you?” and “What are you doing?,” he replied only with, “I’m going
to show you,” while unbuttoning his pants. Although defendant did not expose his
genitals to Brandi before he left the apartment, the trier of fact could reasonably find that
defendant intended to expose himself before entering Brandi’s room, particularly given
evidence that he had previously exposed himself to Dunham within the past year.
(Rehmeyer, supra, 19 Cal.App.4th at p. 1765.) “When the evidence justifies a reasonable
inference of felonious intent, the verdict will not be disturbed on appeal.” (Id. at p.
14 1766.) We thus conclude there was substantial evidence to support defendant’s burglary
conviction.
V
ABANDONMENT INSTRUCTION
Defendant contends the trial court committed prejudicial error by failing to
instruct the jury sua sponte on the abandonment defense regarding count 2. We disagree.
After discussing jury instructions on attempted indecent exposure, the parties
agreed to the proposed instructions as read to the jury. The trial court instructed the jury
on attempted indecent exposure by giving CALCRIM No. 460. Defendant argues for the
first time on appeal that the trial court should have included the following bracketed,
discretionary paragraph in CALCRIM No. 460 on abandonment, which the parties did
not request and the court did not read to the jury:
“[A person who attempts to commit is guilty of attempted
even if, after taking a direct step towards committing the crime,
he or she abandoned further efforts to complete the crime or if his or her attempt failed or
was interrupted by someone or something beyond his or her control. On the other hand,
if a person freely and voluntarily abandons his or her plans before taking a direct step
toward committing , then that person is not guilty of attempted
.]” (CALCRIM No. 460.)
Defendant has forfeited any claim of error in not instructing on abandonment
because he did not request instruction on abandonment or object to the trial court not
15 giving the optional paragraph in CALCRIM No. 460 on abandonment. (People v. Davis
(2009) 46 Cal.4th 539, 616-617.)
Forfeiture aside, we reject defendant’s contention that the trial court should have
sua sponte instructed on the abandonment defense. In general, the trial court has the duty
to instruct the jury sua sponte on principles of law relevant to the issues raised by the
evidence. (People v. Wims (1995) 10 Cal.4th 293, 303.) Additionally, a defendant is
entitled to an instruction which pinpoints the theory of his defense. (People v. Wharton
(1991) 53 Cal.3d 522, 570.) Such an instruction is one which “pinpoints the evidence in
the case in the light of defendant’s theory of defense and instructs the jury that the People
bear the burden of ultimate persuasion on the issue which the instruction pinpoints.”
(People v. Brady (1987) 190 Cal.App.3d 124, 135, disapproved on another ground in
People v. Montoya (1994) 7 Cal.4th 1027, 1040.) However, a defendant is entitled to a
“pinpoint” instruction only upon request; there is no requirement that such an instruction
be given sua sponte. (People v. Saille (1991) 54 Cal.3d 1103, 1119.)
Defendant acknowledges that there is no case law explicitly holding that a court
has a sua sponte duty to give the bracketed paragraph on abandonment but argues that the
bench notes for CALCRIM No. 460 state that the abandonment instruction should be
given if abandonment is an issue. The following bench note states: “Give the bracketed
paragraph that begins with ‘A person who attempts to commit’ if abandonment is an
issue.” There is no mention here that the abandonment paragraph must be given sua
sponte, whereas other CALCRIM No. 460 bench notes state that the trial court has “a sua
sponte duty” to instruct on the elements of the crime of attempt. The absence of any
16 mention of a sua sponte requirement regarding the abandonment defense indicates there
is no sua sponte duty to give the abandonment instruction.
Instruction on abandonment in the instant case would have been a pinpoint
instruction, relating particular facts of defendant’s purported abandonment to the
commission of the crime of attempted indecent exposure. Language on abandonment
would have pinpointed part of defendant’s defense. Therefore the trial court was not
required to give the abandonment instruction sua sponte. (People v. Saille, supra, 54
Cal.3d at p. 1119.)
Furthermore, “[i]n the absence of a request for a particular instruction, a trial
court’s obligation to instruct on a particular defense arises ‘“only if [1] it appears that the
defendant is relying on such a defense, or [2] if there is substantial evidence supportive of
such a defense and the defense is not inconsistent with the defendant’s theory of the
case.”’ [Citations.]” (People v. Dominguez (2006) 39 Cal.4th 1141, 1148.) Here,
defendant did not rely on the defense of abandonment. Defendant relied on the theory he
had no intention of committing indecent exposure. Defense counsel argued during
closing argument that defendant entered the Varvels’ apartment looking for his wife and,
when he entered Brandi’s room, he did not intend to expose himself and did not touch
himself, expose himself, or begin undressing or unbuttoning his pants. Defense counsel
noted there was evidence defendant was wearing a belt, which would have impeded
defendant from unbuttoning or unzipping his pants. Defense counsel further argued
nothing stopped or interrupted defendant’s acts. There was no intent or immediate steps
17 taken to put in motion a plan to commit indecent exposure, and also no evidence of any
circumstance interrupting the carrying out of such plan.
The trial court was not required to instruct sua sponte on the abandonment defense
because defendant did not rely on the defense of abandonment below and the theory was
inconsistent with his theory that he did not intend to commit indecent exposure, he did
not take any acts in furtherance of committing the offense, and nothing stopped or
interrupted his conduct of roaming the Varvels’ apartment, looking for his wife.
In any event, any error in failing to give an instruction on “abandonment” was
harmless beyond a reasonable doubt. There is no reasonable probability that, had the
abandonment instruction been given, the jury would have found defendant not guilty of
attempted indecent exposure. (People v. Hughes (2002) 27 Cal.4th 287, 363.) When
considering a claim that an instruction was deficient, we look at the instructions as a
whole to determine whether such error is reasonably likely to have caused the jury to
misapply the law. Here, we conclude it was not reasonably likely the jury would have
misapplied the law or that the outcome would have been different. (People v. Carrington
(2009) 47 Cal.4th 145, 192.) Even under the Chapman standard of review (Chapman v.
California (1967) 386 U.S. 18, 24), we conclude that, given the instructions as a whole,
absence of the instruction on abandonment did not contribute to the verdict. (People v.
Sakarias (2000) 22 Cal.4th 596, 625.) The jury was properly instructed on the elements
of attempted indecent exposure, which included (1) defendant took a direct but
ineffective step toward committing indecent exposure and (2) defendant intended to
commit indecent exposure. Defendant’s conviction reflects that the jury believed
18 Brandi’s testimony that defendant began unbuttoning his pants and that, when she asked
him what he was doing, defendant pointed to his pants and said, “I’m going to show
you.”
Not only was there substantial evidence supporting a finding defendant committed
attempted indecent exposure, but in addition, any finding of abandonment would have
been based on defendant’s conduct committed after he began unbuttoning his pants, at
which point the attempted offense had already been committed. We therefore conclude
that, even assuming the trial court erred in not instructing on abandonment, it is not
reasonably probable that such error would have resulted in a more favorable verdict.
VI
MOTION TO SUSPEND THE PROCEEDINGS BASED ON INCOMPETENCY
Defendant contends the trial court erred in failing to declare a doubt as to his
competency to stand trial. We disagree.
A. Procedural Background
During the trial, defendant’s recorded police interview was played for the jury.
Defendant commented to his trial attorney during a break in showing the recorded
interview that the voice on the recording was not his, that he was not the person who
went into Brandi’s bedroom, that the bag of chips on the bedroom floor moved by itself,
and Brandi was not the person he saw in bed. Defendant said Jaquish was in Brandi’s
bed, wearing a negligee and the case was a conspiracy against him.
Upon resuming the proceedings, defendant’s attorney, Randall Isaeff, moved to
suspend the trial to assess defendant’s competency to stand trial because of statements
19 defendant had made to Isaeff during the break. Isaeff believed defendant was paranoid,
delusional, and irrational, and this would interfere with defendant’s ability to understand
the criminal proceedings and assist in his defense.
The trial court took a recess and reviewed case law on the matter. After resuming
the hearing on Isaeff’s motion to assess defendant’s competency, the court denied the
motion, finding there was insufficient evidence to support a finding of doubt as to
defendant’s competency and suspend the proceedings.
B. Applicable Law
Defendant argues that the record contains substantial evidence that he was
mentally incompetent. “Both federal due process and state law require a trial judge to
suspend trial proceedings and conduct a competency hearing whenever the court is
presented with substantial evidence of incompetence, that is, evidence that raises a
reasonable or bona fide doubt concerning the defendant’s competence to stand trial.”
(People v. Rogers (2006) 39 Cal.4th 826, 847 (Rogers).)
Section 1368, subdivision (a), provides, in pertinent part, that “[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, 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. . . . 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.”
20 The court’s duty to conduct a competency hearing may arise at any time prior to
judgment. (Rogers, supra, 39 Cal.4th at p. 847.) Defense counsel’s opinion is a factor
for the court to consider in determining whether substantial evidence of a lack of
competence exists. (People v. Panah (2005) 35 Cal.4th 395, 433.) If the trial court does
not doubt defendant’s competence, the court is not required to conduct a hearing under
section 1368 based solely on defense counsel’s opinion that defendant is incompetent.
(People v. Rodrigues (1994) 8 Cal.4th 1060, 1112.)
A defendant is mentally incompetent if, as a result of a mental disorder or
developmental disability, he or she 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).) In considering whether a defendant is competent, the trial court may
consider the defendant’s demeanor, irrational behavior, and prior mental evaluations.
(Rogers, supra, 39 Cal.4th at p. 847.) We give deference to the trial court’s
determination of whether to hold a competency hearing, since the court has the advantage
of observing the defendant during trial. “The failure to declare a doubt and conduct a
hearing when there is substantial evidence of incompetence, however, requires reversal of
the judgment of conviction.” (Rogers, supra, 39 Cal.4th at p. 847.)
C. Discussion
The trial court reasonably concluded defendant’s statements, made during his
recorded police interview and to his attorney during the recess, may have suggested
mental instability but did not demonstrate defendant was unable to understand the
proceedings or assist in his defense. “Evidence . . . that does no more than form the basis
21 for speculation regarding possible current incompetence is not sufficient. [Citation.]”
(People v. Hayes (1999) 21 Cal.4th 1211, 1281.) More is required to raise a doubt of
competence than mere bizarre actions or bizarre statements, which do not necessarily
affect defendant’s ability to assist in his or her own defense. (People v. Danielson (1992)
3 Cal.4th 691, 727; Rogers, supra, 39 Cal.4th at p. 847.)
Here, defendant’s recorded statement indicated he understood he was being
investigated for committing indecent exposure. Defendant denied he committed or
attempted to commit indecent exposure and explained why he was innocent. Defendant
claimed he was in Brandi’s apartment merely because he was looking for his wife and
wanted to have consensual sex with an adult female. Defendant denied he did anything
improper in Brandi’s room, claiming he left because he lost interest in Brandi when he
discovered she was too young and she repeatedly asked what he was doing and who he
was.
Although defendant’s recorded statement and his statements made to defense
counsel included odd, irrational statements, the court could conclude defendant was
feigning mental incompetence or that such statements were not sufficient to establish
defendant was unable to understand and assist in his defense. The court could reasonably
find, based on the record as a whole, that there was insufficient evidence defendant was
incompetent.
22 VII
SENTENCING ERROR
Defendant contends, and the People agree, that the trial court should have stayed
defendant’s sentence for attempted indecent exposure under section 654. Section 654
prohibits multiple punishment for both burglary and the underlying felony conviction,
when the burglary was committed with the intention of committing the underlying felony
and is part of an indivisible transaction. (People v. Hester (2000) 22 Cal.4th 290, 294;
People v. Price (1991) 1 Cal.4th 324, 492.) Here, defendant was sentenced for burglary
and for the underlying felony of attempted indecent exposure. Sentencing defendant for
both crimes was improper under section 654. Therefore defendant’s concurrent one-year
sentence on the attempted indecent exposure conviction (count 2) must be stayed under
section 654.
Defendant also asserts, and the People agree, that the trial court miscalculated his
presentence custody time. The trial court credited defendant with a total of 231
presentence custody credits. Defendant’s credits consisted of 201 actual days and 30
days conduct credit. Defendant was arrested on February 7, 2012 and remained in
custody until sentenced on February 21, 2013. Defendant’s actual days in custody
therefore amounted to 381 days. Defendant was also entitled to credits for 15 percent of
his actual time in custody, amounting to 57 days (15 percent of 381 days). (§ 4019.)
Defendant should therefore receive a total of 438 days presentence custody credits (57
conduct credit days, plus 381 actual days).
23 In addition, the People correctly note in their respondent’s brief that the abstract of
judgment does not reflect that the trial court ordered defendant to register as a sex
offender under section 290, subdivision (c). The abstract of judgment states that
defendant must register under Health & Safety Code sections 11590 and 11594 (relating
to controlled substances crimes), but does not reflect the trial court’s order requiring
registration as a sexual offender under section 290. “When an abstract of judgment does
not reflect the actual sentence imposed in the trial judge’s verbal pronouncement, this
court has the inherent power to correct such clerical error on appeal, whether on our own
motion or upon application of the parties. [Citation.]” (People v. Jones (2012) 54
Cal.4th 1, 89.) Therefore the abstract of judgment must be amended to show that
defendant must register as a sexual offender under section 290.
VIII
DISPOSITION
Defendant’s concurrent, one-year sentence for attempted indecent exposure (count
2) is ordered stayed under section 654. Defendant’s presentence custody credits are
ordered increased from 231 presentence custody credits to 438 days of presentence
custody credits. In all other regards, the judgment is affirmed.
The trial court is directed to correct the abstract of judgment to show that
defendant must register as a sexual offender under section 290, subdivision (c). The
superior court is ordered to issue a modified abstract of judgment reflecting the
sentencing changes ordered by this court and also adding that defendant must register as a
sex offender under section 290, subdivision (c). The trial court is further directed to
24 forward a certified copy of the amended abstract of judgment to the Department of
Corrections and Rehabilitation. As modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
McKINSTER Acting P. J.
RICHLI J.