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Court of Appeal, Second District, Division 2, California.

The PEOPLE, Plaintiff and Respondent, v. Cornelio MEDINA ROCHA, Defendant and Appellant.

No. B056751.

Decided: May 26, 1993

Shunji Asari, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Sr. Asst. Atty. Gen., Marc E. Turchin, Supervising Deputy Atty. Gen., and Alison Braun, Deputy Atty. Gen., for plaintiff and respondent.

Cornelio Medina Rocha was convicted after a jury trial of murder (Pen.Code, § 187, subd. (a)) and robbery (Pen.Code, § 211) with the use of a deadly weapon (Pen.Code, § 12022, subd. (b)).  On appeal, appellant's sole contention is that psychiatric evidence obtained during a Penal Code section 1368 competency evaluation was improperly used at the hearing on his motion to exclude his confession.   We find that since appellant put in issue his mental state, the trial court properly admitted at the hearing on the confession testimony by the same psychiatrist who had previously found appellant competent to stand trial.   Because of appellant's effective waiver of the Fifth Amendment privilege as to information gleaned during the competency to stand trial hearing, the psychiatrist properly testified at the confession hearing that appellant was able to understand the basic concepts in the Miranda warnings based, in part, upon observations made during the prior competency examination.


On February 14, 1988, at approximately 9 p.m., Francisco Sanchez, a long-time resident of the Hotel Rendon at 7th and Santa Fe Streets, saw appellant and a companion, Candelario Pacheco, leave the room which they shared at the hotel.   Both men put knives into their pockets before they left.   At approximately 2 a.m., Sanchez again saw appellant and Pacheco as they walked out of a cafe and into a nearby alley.   The victim (referred to in the information as a “John Doe”) followed them into the alley.   The victim and appellant argued, and then appellant hit him.   Pacheco also struck the victim, and then the three men disappeared farther into the alley and away from Sanchez' view.

After Sanchez had been in the bathroom for approximately 15 minutes, he returned and saw appellant and Pacheco arguing with Albert Olivas, the owner of a nearby apartment.   Olivas had observed appellant and Pacheco run out from the alley with knives in their hands, and he demanded that they show him their knives when they entered the hotel.   Pacheco's knife had blood on it.   Both men were wearing dark gray striped shirts which had bloodstains on them.   Appellant and Pacheco went to their room but then left.   After they left, the victim, who had gone into the alley with them, came stumbling out of the alley and fell against the wall.

Soon thereafter, the police found the victim dead and lying in the alley with his pants pockets pulled inside out and a trail of blood behind him.   Near the victim's head was 50 cents in change and several folded check stubs with Pacheco's name on them.   An autopsy determined the cause of death to be two stab wounds to the chest.

On February 17, 1988, the police arrested appellant and Pacheco and later that day interviewed appellant at the police station.   After he was advised of and waived his constitutional rights, appellant told the interviewing police detective that the victim had approached appellant and Pacheco in a bar where they had been drinking and began drinking with them.   When appellant and Pacheco left, the victim accompanied them.   Outside the bar, Pacheco told appellant they were “going to take this dude down to see what he had on him.”   Appellant and Pacheco then dragged the victim to an alley, and Pacheco took out his knife and asked the victim if he had any money.   When the victim said he did not, Pacheco struck him in the stomach.   Pacheco searched the victim but found nothing.   Appellant held a knife to the victim's stomach but did not stab him.   Appellant left, but Pacheco initially stayed with the victim and thereafter left, also.   Appellant first went to the apartment-hotel and then to the house of a cousin to whom he admitted, “[W]e had stabbed a dude.”   Appellant explained to his cousin that Pacheco had stabbed the victim and that appellant had not but had been with Pacheco.   Appellant asserted to the interviewing police detective that Pacheco had not intended to stab the victim.

According to appellant's trial testimony, when the three men left the bar, Pacheco grabbed the victim and appellant helped pull him into the alley.   Appellant admitted that he pointed his knife at the victim's stomach, but asserted that he did not stab him.   Pacheco obtained $3 from the victim.   When the victim indicated that he had no other money, appellant let him go.   According to appellant, he walked away from the victim and told Pacheco to let him go.   When appellant was approximately 15 feet away, he turned around and saw Pacheco stab the victim.


Appellant contends that the trial court erred in permitting Dr. Kaushal Sharma to testify at the pretrial hearing on the issue of whether appellant intelligently and voluntarily waived his constitutional rights under Miranda v. Arizona (1967) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.   Dr. Sharma was the psychiatrist who had previously examined appellant to assess his competency to stand trial.  (See Pen.Code, § 1368 et seq.)   The court in Tarantino v. Superior Court (1975) 48 Cal.App.3d 465, 122 Cal.Rptr. 61, held, “[N]either the statements of [a defendant] to the psychiatrists appointed under section 1369 nor the fruits of such statements may be used in trial of the issue of [an individual's] guilt․”  (Id. at p. 470, 122 Cal.Rptr. 61.)

In approving and adopting this rule, the Supreme Court in People v. Arcega (1982) 32 Cal.3d 504, 186 Cal.Rptr. 94, 651 P.2d 338, explained as follows:  “This rule is necessary to ensure that an accused is not convicted by use of his own statements made at a court-compelled examination.   The rule also fosters honesty and lack of restraint on the accused's part at the examination and thus promotes accuracy in the psychiatric evaluation.   Hence, the rule protects both an accused's privilege against self-incrimination and the public policy of not trying persons who are mentally incompetent.”  (Id. at p. 522, 186 Cal.Rptr. 94, 651 P.2d 338.)

The court in Arcega also noted that pursuant to Estelle v. Smith (1981) 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359, the Fifth Amendment privilege against self-incrimination applies to custodial mental competency examinations, and the prosecution may not introduce evidence of statements made by an accused at a custodial mental competency examination at subsequent court proceedings unless the accused has been informed of and waives his Miranda rights.   (People v. Arcega, supra, 32 Cal.3d at p. 523, 186 Cal.Rptr. 94, 651 P.2d 338.)   Similarly, in People v. Harris (1987) 192 Cal.App.3d 943, 237 Cal.Rptr. 747, the court held that if the prosecution desires to rebut defense testimony regarding the defendant's mental state to commit an offense, the prosecution must use psychiatrists other than those who examined the defendant for the purpose of determining competency to stand trial.  (Id. at pp. 948–950, 237 Cal.Rptr. 747;  see also People v. Stanfill (1986) 184 Cal.App.3d 577, 580–581, 229 Cal.Rptr. 215.)

In the present case, prior to trial and pursuant to appellant's Penal Code section 1368 motion, the court declared a doubt as to appellant's competency to stand trial and appointed Dr. Sharma and another doctor to examine appellant.   After appellant was found competent to stand trial, he brought a motion to suppress his post-arrest statement, pursuant to Evidence Code section 402, on the theory that his waiver of Miranda rights was not knowing and intelligent.1  At the hearing, appellant called two psychiatrists who testified that appellant's Miranda waiver was not knowing because of his low intelligence.   Appellant's witnesses, Dr. Gregory Firman and Dr. Margaret Bennett, observed that appellant was mildly to moderately retarded, had I.Q. level of 62, tested at a pre-kindergarten grade level, never progressed beyond the first grade, was illiterate in Spanish, and suffered from a dependent personality disorder.   Drs. Firman and Bennett applied their knowledge of appellant's intelligence and background to the tape recording of his Miranda waivers and his statement.   Dr. Firman concluded that appellant did not know what a court of law was and did not have a clear understanding of his right to an attorney.   Dr. Bennett concluded that appellant was unable to make a knowing and intelligent waiver of his rights because he was unable to understand the meaning of the words used.

In rebuttal at the hearing, the prosecution called Dr. Sharma, who had examined appellant for the competency hearing.   Based upon his prior examination of appellant and upon a reading of a transcript of the Miranda waivers and confession, Dr. Sharma concluded that appellant's waiver was knowing and intelligent.   In Dr. Sharma's opinion, the intelligence test administered to appellant did not compensate for his upbringing in rural Mexico and, as a consequence, registered his intelligence too low.   Dr. Sharma indicated that appellant could understand concepts such as “district attorney” and “felony murder” after they were explained to him, and the doctor concluded that appellant would have been able to understand the concepts of “attorney” and “court of law” as described by the detective who interviewed appellant.   Dr. Sharma did “not find any basis to suggest that [appellant] suffers from mental retardation.”

Respondent seeks to distinguish People v. Arcega, supra, 32 Cal.3d 504, 186 Cal.Rptr. 94, 651 P.2d 338, and other related cases from the present situation on the ground that (1) Dr. Sharma did not testify as to any discussions he may have had with appellant during the Penal Code section 1368 examination about the commission of the offense, (2) Dr. Sharma's testimony related only to the voluntariness of the statement and not to any substantive issues of guilt, such as appellant's capacity to commit the offense, and (3) appellant waived his Fifth Amendment privilege when he introduced psychiatric testimony.

 Respondent's first two distinctions are not controlling.   First, the rule in Arcega precludes not only the use of statements made by a defendant to a psychiatrist appointed for a mental competency review, but also the fruits of such statements.  (People v. Arcega, supra, 32 Cal.3d at p. 522, 186 Cal.Rptr. 94, 651 P.2d 338.)   Although the statements by appellant to Dr. Sharma did not result in the introduction against appellant of any physical evidence, the prosecution exploited the statements for its purposes when Dr. Sharma gave his opinion as to the knowing and intelligent nature of the Miranda waivers by appellant.   Second, although Dr. Sharma's testimony related only to the admissibility of the confession and not to any substantive issues of guilt (such as appellant's capacity to commit the offense), the rationale for the Arcega rule still applies.   Even if limited to the issue of the voluntariness of a waiver (or voluntariness of a confession), a psychiatrist's testimony could result in (1) an accused's own statements made at a court-compelled examination assisting in his conviction, and (2) discouraging an accused from speaking during a psychiatric competency examination with complete candor and unrestrained honesty.  (People v. Arcega, supra, 32 Cal.3d at p. 522, 186 Cal.Rptr. 94, 651 P.2d 338.)

However, respondent's last position is well taken that since appellant put his competency in issue, initiating the psychiatric proceedings and thereafter advancing psychological testimony on the issue of the validity of his confession, appellant waived his Fifth Amendment privilege.   Although the question whether the Fifth Amendment privilege is waived when a defendant seeks to introduce psychiatric testimony was initially left open by Estelle v. Smith, supra, 451 U.S. at pp. 466, 472, 101 S.Ct. at pp. 1874, 1877 (see People v. Arcega, supra, 32 Cal.3d at p. 523, fn. 5, 186 Cal.Rptr. 94, 651 P.2d 338), the question was resolved in Buchanan v. Kentucky (1987) 483 U.S. 402, 107 S.Ct. 2906, 97 L.Ed.2d 336.   In Buchanan, the defendant sought to establish the defense of “extreme emotional disturbance” by calling a social worker who had read reports prepared by psychiatrists who had evaluated the defendant's competency to stand trial.   In rebuttal, the prosecution had the social worker read excerpts from the doctors' reports, which dealt with the defendant's mental state but did not describe any statements the defendant had made concerning the commission of the offense.   (Id. at p. 423, 107 S.Ct. at p. 2918.)   The court held that there was no Fifth Amendment violation.  (Id. at pp. 423–424, 107 S.Ct. at p. 2918.)

 Following Buchanan and arriving at a similar result, the court in People v. Williams (1988) 44 Cal.3d 883, 245 Cal.Rptr. 336, 751 P.2d 395, held that when a defendant initiates a psychological examination by court-appointed experts, the admission of the defendant's statements in a subsequent proceeding in which he has placed his mental state at issue does not violate the Fifth Amendment.  (Id. at pp. 961–962, 245 Cal.Rptr. 336, 751 P.2d 395.)   The court emphasized, “Even if the defendant or his counsel is not aware at the time of the examination of all of the possible uses to which his statements might be put, he is on notice that they are admissible in rebuttal to such proceedings.”  (Id. at p. 962, 245 Cal.Rptr. 336, 751 P.2d 395.)   Accordingly, in the present case where appellant initiated the psychiatric examination on competency and thereafter advanced psychological testimony at the hearing on the admissibility of his statements, the court did not err in permitting Dr. Sharma, who had examined appellant as to his competency to stand trial, to testify on the issue of whether appellant intelligently and voluntarily waived his Miranda rights.2


The judgment is affirmed.


1.   The interviewing police detective engaged appellant in the following discussion regarding the advisement and waiver of his Miranda rights:  “V[oice]1 [Detective Campos]:  If you don't understand again, you tell me and I will try to explain it to you again.   You have the right to remain silent.   Do you understand that?   Yes or no.  [¶] V[oice]2 [Appellant]:  Yes.  [¶] V1:  If you give up the right to remain silent, anything you say can be used and will be used against you in a court of law.   Do you understand that?  [¶] V2:  Yes.  [¶] V1:  You already know what a court of law is?   You have to say yes or no.   Do you already know?  [¶] V2:  No, well, I have never gone to court, nothing like that.   [¶] V1:  But you do know what, what a court is?  [¶] V2:  No.  [¶] V1:  You explain to me what you think a court of law is.   What happens in a court of law?  [¶] V2:  I don't know.  [¶] V1:  A court of law is a place where ․ a defendant who is accused of a criminal crime, or civil also, goes there in front of a judge, okay?   And the judge studies the case and he decides if that person is guilty or not guilty.   Did you know that?   [¶] V2:  Well, yes.  [¶] V1:  Okay.   If you do ․ if a guy commits a, a, a crime against the law, he is ․ the police grabs [sic ] him, they arrest him and they take him to the court of law where the judge will hear the case and he decides if he is guilty or not guilty.   Do you understand what a court of law is?   Like I explained it to you, do you understand?  [¶] V2:  Yeah.  [¶] V1:  Yes.   Do you know what an attorney is?  [¶] V2:  Yes.  [¶] V1:  What is an attorney?  [¶] V2:  Well, an attorney, well he goes around talking on one [']s behalf, right?  [¶] V1:  In a court of law.   Do you understand?   Okay.  Okay.   You have the right to speak to an attorney, who is the person who represents one in a court of law, and to have an attorney present during your questioning.   Do you understand?   Yes or no.   Do you understand?  [¶] V2:  I don't really know about that of an attorney, I never have [unintelligible].  [¶] V1:  Do you know what an attorney is?  [¶] V2:  Well, yes, but ․ [¶] V1:  Okay.   Do you want to talk to me?   You said that ․ do you want to talk to me?   Before I explained your rights, you told me that you did want to talk to me, and that you wanted to tell me everything that happened, and you did not need an attorney to be present, okay?   Now what I am doing is to read the same as before, I am telling you again so there won't be any, huh, errors here, okay?   Do you want to talk to me without an attorney?  [¶] V2:  Well, yes, I say.  [¶] V1:  You don't ․ you don't need an attorney right this very minute?  [¶] V2:  No.  [¶] V1:  Okay.   If you want an attorney and you don't have the money with which to pay an attorney, one will be appointed for you at no cost before you are questioned.   Do you understand?   This means that if you don't have the money to pay an attorney, the state will give one to you.   Do you understand?  [¶] V2:  Yes.  [¶] V1:  Now I am going to ask you another ․ the questions again.   Do you understand each of these rights that I have explained to you?   Do you understand?   Yes or no.  [¶] V2:  Yes.  [¶] V1:  Okay.   Do you wish to give up the right to remain silent?   Do you want to talk to me?   Like you told me before.   Do you want to talk to me?  [¶] V2:  Well, yes, well ․ [¶] V1:  You do?   Okay.  Do you wish to give up the right to speak to an attorney and to have him present during questioning?   Do you want to speak to me without an attorney like you told me before?  [¶] V2:  Yes.”

2.   We also note that establishing whether a defendant's statement was the product of a knowing and intelligent waiver of his constitutional rights does not necessarily require any psychiatric or other expert testimony.   The transcript of appellant's interview reveals the detective obviously understood that appellant had somewhat limited mental abilities.   Apart from Dr. Sharma's opinion, it is apparent that the detective took commendable efforts to ensure through an extended discussion with appellant that he understood his rights and knowingly and intelligently waived them.Moreover, despite appellant's claim that he told Pacheco to let the victim go and walked 15 feet away from the victim when he saw Pacheco stab the victim, the evidence nonetheless established appellant's liability either (1) as an aider and abetter, where the victim's death was a reasonably foreseeable consequence of the robbery originally agreed upon (see People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5, 221 Cal.Rptr. 592, 710 P.2d 392;  CALJIC No. 3.02) and appellant did not do “everything in his power to prevent” (CALJIC No. 3.03) the murder, or (2) as a person engaged in a robbery during the commission of which an unlawful killing occurs by a fellow perpetrator of the robbery, i.e., first degree felony murder (CALJIC No. 8.21).   Any error regarding the admission of Dr. Sharma's testimony at the hearing on the validity of appellant's Miranda waiver, and the subsequent admission at trial of appellant's statement to the detective, was thus harmless beyond a reasonable doubt.  (See People v. Arcega, supra, 32 Cal.3d at pp. 524–525, 186 Cal.Rptr. 94, 651 P.2d 338.)

BOREN, Presiding Justice.

GATES and NOTT, JJ., concur.

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Docket No: No. B056751.

Decided: May 26, 1993

Court: Court of Appeal, Second District, Division 2, California.

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