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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Richard MAYES, Defendant and Appellant.

No. D010493.

Decided: June 20, 1991

Michael B. McPartland, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., Louis R. Hanoian, Supervising Deputy Atty. Gen., and Cyndi Jo Means, Deputy Atty. Gen., for plaintiff and respondent.

Richard Mayes appeals a judgment convicting him, after a second trial,2 of first-degree robbery (Pen.Code,3 § 211) and kidnapping (§ 209, subd. (b)), with penalty enhancements for using a firearm in the commission of both offenses (§ 12022.5) and for having been convicted previously of a serious felony (§ 667, subd. (a)).   Mayes asserts the trial court erred in:  (1) permitting the People to introduce evidence of an absent witness's testimony from the preliminary hearing;  (2) denying a motion in limine seeking to prohibit the use of his own prior trial testimony to impeach him should he testify at the second trial;  and (3) denying presentence credits to which he was entitled.   We conclude the absent witness's testimony was properly admitted, any error in the court's in limine ruling was harmless beyond a reasonable doubt, and Mayes has failed to support his claim of sentencing credits error.   Accordingly, the judgment is affirmed.




Mayes contends this court's reversal of his first conviction, on grounds he was not allowed to present evidence of his incompetency at his competency hearing, creates a presumption he was incompetent at the preliminary hearing and at the first trial.   This presumption, he argues, prohibited the People from (1) using Royal's preliminary hearing testimony and (2) his own testimony at the first trial for any purpose.



 Mayes's motion in limine sought to prevent the People from using his first trial testimony for any purpose, including to impeach him should he testify at the second trial, contending the denial of due process at his initial competency hearing renders any testimony given before his competency was validly adjudicated is inadmissible for any purpose.   He argues the trial testimony is presumed to be the product of his incompetent mind, making it equivalent to involuntary or coerced statements obtained through violation of his right to due process which may not be used for any purpose.8

The trial court thoughtfully evaluated Mayes's request.   It denied the People's request to be permitted to use Mayes's prior testimony in their case-in-chief or to cross-examine witnesses by posing hypothetical questions based upon it.   It also qualified its preliminary determination to permit the People to impeach Mayes with his earlier testimony, by advising defense counsel it would allow him first to introduce expert and other evidence to establish Mayes was in fact incapable of testifying at the first trial.   That is, it would require Mayes to prove he was incapable of testifying, not merely that he was incompetent to stand trial as defined by section 1368 et seq.   If Mayes could not meet this unique test;  i.e., could only establish he was incompetent to stand trial in the definition of section 1368 et seq., the court would permit impeachment as if this were a Miranda 9 violation.10

On appeal, the People do not assert Mayes should not be presumed incompetent at the time he testified at the first trial, rather they analogize the admissibility issue as framed in other contexts.   They note it is settled a defendant must testify to preserve a challenge to the admissibility of impeachment evidence of a prior conviction.  (People v. Collins (1986) 42 Cal.3d 378, 383, 228 Cal.Rptr. 899, 722 P.2d 173, citing Luce v. United States (1984) 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443.)   They further cite a decision concluding this rule applies to impeachment evidence obtained in violation of Miranda.  (People v. May (1988) 44 Cal.3d 309, 319, 243 Cal.Rptr. 369, 748 P.2d 307.) 11

The People argue Mayes's prior trial testimony, even if while he was incompetent, was not illegally compelled.   They urge us to apply the criminal procedure rule of Luce v. United States, supra, 469 U.S. 38, 105 S.Ct. 460, which requires a defendant to testify to preserve a challenge on appeal.   However, we are unwilling to equate the in-court statements of a person who is, or must be deemed, mentally incompetent to stand trial, with those statements made by a competent person who was not properly advised of the right to remain silent.   Neither are the concerns Mayes raises answered by those policy considerations which prevent challenges to a trial court's Evidence Code section 352 exercise of discretion in permitting general credibility impeachment of a defendant's credibility by evidence of prior felony convictions.   In neither of those situations is the impeaching evidence unreliable.   Evidence of prior convictions is excluded only when its relevance to the issue of general credibility is outweighed by prejudice to the defendant's ability to receive a fair trial on present charges.   Non–Mirandized admissions are deemed involuntary and excluded on public policy grounds to deter similar future police conduct, a policy consideration which is overcome once a defendant elects to testify to a different version.   If in fact the non-Mirandized version is false, at least it was given by a person who was mentally competent and a jury can weigh the inconsistent statements by evaluating the circumstances under which each was made and the defendant's explanation.

On the other hand, defendants mentally incompetent to stand trial are deemed unable to defend themselves at trial.  (See Tarantino v. Superior Court (1975) 48 Cal.App.3d 465, 469, 122 Cal.Rptr. 61;  People v. Harris (1987) 192 Cal.App.3d 943, 949–950, 237 Cal.Rptr. 747.)   It has been suggested the use of statements from a proceeding in which a defendant is not a conscious participant and has no understanding of the prosecution is morally repugnant and should not be sanctioned.  (See Slobogin, Estelle v. Smith:  The Constitutional Contours of the Forensic Evaluation (1982) 31 Emory L.J. 71, 88.)   Accordingly, we believe the admission of testimony given by one who is deemed incompetent as defined by section 1368 impacts different policy considerations than the purported analogies cited by the People.

 While we conclude the court erred in its analysis and ruling, we cannot find the error to have been prejudicial under any applicable standard of review.

Absent any offer of proof or trial testimony, we are foreclosed from meaningfully assessing the harm, if any, to Mayes's case.   He does not contend he should be judicially authorized to testify falsely (see People v. May, supra, 44 Cal.3d at p. 319, 243 Cal.Rptr. 369, 748 P.2d 307), nor does he identify any portion of his first trial testimony which would be damaging to any testimony he wished to give at the second trial.   In the absence of any reference to any prejudice in this record from the court's in limine ruling, we conclude the court's error was harmless beyond a reasonable doubt.  (Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705.)

III ***


Judgment affirmed.


2.   This court reversed Mayes's conviction in his first trial.  (See People v. Mayes (1988) 202 Cal.App.3d 908, 248 Cal.Rptr. 899.)

FN3. All statutory references are to the Penal Code unless otherwise specified..  FN3. All statutory references are to the Penal Code unless otherwise specified.

FOOTNOTE.   See footnote 1, ante.

FOOTNOTE.   See footnote 1, ante.

8.   Section 1367 states:  “A person cannot be tried or adjudged to punishment while such person is mentally incompetent.   A defendant is mentally incompetent ․ if, as a result of mental disorder or developmental disability, [he] is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.”

9.   Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

10.   Mayes never raised this issue again during trial.

11.   Both Collins and May construed the impact of components of Proposition 8 on existing state law.   Both courts concluded Proposition 8 changed existing state law to conform with federal law.   In May the California Supreme Court discussed the entire decision of the Court of Appeal including that section where the Court of Appeal expressed its doubt the defendant failed to preserve the issue by not testifying.   The Supreme Court affirmed the Court of Appeal on the merits of the case, but taking note of the appellate court's comment on the procedural aspects.

FOOTNOTE.   See footnote 1, ante.

WORK, Associate Justice.

WIENER, Acting P.J., and BENKE, J., concur.

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