Cal. Supreme Court Vacates Death Sentence On Faretta Grounds

In between the guilt and penalty phases of a capital murder trial, the defendant brought a Faretta motion to represent himself at the penalty phase. Although the trial court had found the defendant competent to stand trial, it denied appellant's Faretta motion based on a finding of mental incapacity to represent himself. The United States Supreme Court, however, has held that the test for competency to stand trial is the same as the test for competency to represent oneself. Thus, if the defendant was competent to stand trial, as the court found him to be, then he was also competent to represent himself, irrespective of any perceived mental deficiencies. Therefore, although the Court affirmed the jury's guilt finding, it reversed the death sentence. Justice Werdegar wrote the majority opinion, which was joined by every justice except Justice Kennard, who filed a concurring and dissenting opinion.

In Justice Kennard's separate opinion, she disagreed with the portion of the majority's opinion affirming the jury's guilt finding as to the two murder counts. Justice Kennard was troubled by the fact that over defense objection, the trial court permitted the prosecutor on cross-examination to ask the defense expert witness, a forensic psychiatrist, whether he had advised defendant’s attorney “that there just was insufficient evidence to present a psychiatric defense.” The expert had in fact expressed that opinion and still held it at the time of his testimony. He testified that he did not think “there was sufficient evidence to support what we call a diminished intent defense . . . to knock it down from murder one to murder two . . .” and “that there was insufficient evidence to even raise a reasonable doubt.”

As even the majority acknowledged, that testimony was inadmissible under Penal Code section 29, which provides: “In the guilt phase of a criminal action, any expert testifying about a defendant’s mental illness, mental disorder, or mental defect shall not testify as to whether the defendant had or did not have the required mental states, which include, but are not limited to, purpose, intent, knowledge, or malice aforethought, for the crimes charged. The question as to whether the defendant had or did not have the required mental states shall be decided by the trier of fact.”

While the majority concluded that the erroneous admission of this testimony was non-prejudicial, Justice Kennard noted that the only reasonable interpretation of this testimony was that, in the expert's opinion, the defendant had the mental state necessary for first degree murder during the acts in question. Moreover, she believed there was a reasonable probability that the trial court’s error led the jury to discredit the defense expert's earlier testimony on direct examination describing the defendant’s serious mental illness and its symptoms. In Justice Kennard's opinion, without this error, there was a reasonable probability that the jury would have entertained a reasonable doubt that the defendant acted with premeditation and deliberation during the killings.

People v Halvorsen, no. S008112 (Cal. Supreme Ct., filed 8/30/07)