California Court of Appeal Nov 14, 2014 No. E058142Unpublished
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
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I
INTRODUCTION
A jury convicted defendant Price Crossno of first degree burglary (Pen. Code,
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
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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
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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
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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.”
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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
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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.
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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).
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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
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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.
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AI Brief
AI-generated · verify before citing
Holding. The court held that sufficient evidence supported the defendant's convictions for burglary and attempted indecent exposure, and that the trial court had no sua sponte duty to instruct on the abandonment defense. However, the court found error in the failure to stay the sentence for attempted indecent exposure under Penal Code section 654 and in the calculation of presentence custody credits.
Issues
Whether there was sufficient evidence to support the convictions for attempted indecent exposure and burglary.
Whether the trial court had a sua sponte duty to instruct the jury on the abandonment defense.
Whether the sentence for attempted indecent exposure should have been stayed under Penal Code section 654.
Whether the trial court miscalculated presentence custody credits.
Disposition. Affirmed with directions.
Quotations verified verbatim against the opinion
“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.”
“The trial court, however, erred in not staying defendant’s concurrent sentence for attempted indecent exposure (count 2) under section 654.”