People v. Murrell

Opinion

PUGLIA, P. J.

—A jury convicted defendant of second degree murder (Pen. Code, §§ 187, 188, 189) and two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). Defendant admitted he personally used a firearm in the commission of each of the offenses, within the meaning of Penal Code section 12022.5. (Further statutory references to sections of an unspecified code are to the Penal Code.) Defendant was sentenced to state prison.

On appeal, defendant contends the judgment must be reversed because (1) he was denied a jury trial on the issue of his mental competence, (2) he was mentally incompetent at the time of his preliminary examination, and (3) the jury was erroneously instructed in terms of CALJIC No. 3.34, and on the issue of implied malice. We shall affirm, dealing with the asserted denial of a jury trial on the issue of mental competence in the published part of this opinion and with the remaining issues in the unpublished part.

1

I

[825]

II

Prior to trial, the superior court ordered defendant examined by a psychiatrist and a psychologist who were to render their opinions on defendant’s competence to stand trial pursuant to section 1368 et seq. After receiving their reports, the court suspended criminal proceedings and ordered a trial on the issue of defendant’s competence. Defendant demanded a jury. The jury found defendant incompetent by reasons of mental disorder and developmental disability. On June 8, 1984, the court committed defendant to Atascadero State Hospital.

On August 28, 1984, the Medical Director of Atascadero State Hospital certified defendant as competent to stand trial. Defendant was returned to court where a three-day hearing was conducted to allow defendant to challenge the certification of competence. At the conclusion of the hearing, the court determined defendant was competent.

Defense counsel then demanded a second jury trial on the issue of competence and moved to reopen the hearing on certification of competence. The court granted the motion to reopen and appointed a psychiatrist and a psychologist to examine defendant, but denied the demand for a jury trial. After a three-day court trial on the certification of competence, the court again found defendant competent to stand trial. Once again, defendant demanded and the court denied a jury trial on the issue of competence. The court reasoned there was no new evidence of incompetence or changed circumstances sufficient to warrant a section 1368 hearing with the right to demand a jury trial. The court reinstated the criminal proceedings.