In re Galaviz

Twenty-two years ago, Nicandro Galaviz was committed to a state mental health institution for a term of 60 years to life after he was found not guilty by reason of insanity of possession of methamphetamine and assault with a deadly weapon. In July 2017, Galaviz filed a petition for a writ of habeas corpus in this court, challenging the commitment order.

Galaviz previously filed a petition for a writ of habeas corpus in the trial court. After holding an evidentiary hearing, the court referred to the hearing as something "akin to a retrospective competency hearing" and denied Galaviz's petition on the ground Galaviz failed to prove he was incompetent at the time of trial.

The petition for a writ of habeas corpus filed in this court is granted and the matter is remanded with directions. The trial court erred in 1996 by failing to hold a hearing to determine Galaviz's competence at the time of trial. Reports filed by mental health professionals in the months preceding trial raised serious doubt about Galaviz's competence to stand trial. This error constitutes reversible error unless it is feasible to conduct a retrospective competency hearing to now determine whether Galaviz had been competent to stand trial in 1996. ( People v. Lightsey (2012) 54 Cal.4th 668 , 674, 143 Cal.Rptr.3d 589 , 279 P.3d 1072 ( Lightsey ).)

We remand to the trial court to strike the commitment order and permit Galaviz to withdraw his plea of not guilty by reason of insanity to the charges alleged in the second amended information.

BACKGROUND

NOVEMBER 1994-APRIL 1995: GALAVIZ IS CHARGED WITH METHAMPHETAMINE POSSESSION; SIX MONTHS LATER THE TRIAL COURT FINDS GALAVIZ MENTALLY INCOMPETENT, SUSPENDS CRIMINAL PROCEEDINGS, AND COMMITS HIM TO PATTON STATE HOSPITAL FOR TREATMENT .

In November 1994, Galaviz was charged in an information with one count of possessing a controlled substance (methamphetamine) in violation of Health and Safety Code section 11377, subdivision (a). The information contained an allegation that he had been previously convicted of a serious or violent felony, as defined by Penal Code section 667, subdivisions (d) and (e)(1), for which he served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b).

One month later, the trial court appointed Dr. Ernest Klatte and Dr. Robert White to examine Galaviz and set a hearing

In April 1995, the trial court suspended proceedings and committed Galaviz to Patton State Hospital pursuant to Penal Code section 1368 as mentally incompetent.

One month later, medical staff at Patton State Hospital reported that a court-appointed evaluator had concluded Galaviz was incompetent to stand trial "due to his being grossly psychotic, with his thought processes being dominated by delusions of receiving messages from outer space." The report noted that Galaviz had a history of two prior suicide attempts. In 1969, when he was 12 years old, he cut his wrists and in 1989, he jumped off a bridge because he believed he received messages telling him to do so.

AUGUST-OCTOBER 1995: PATTON STATE HOSPITAL CERTIFIES GALAVIZ'S MENTAL COMPETENCY IS RESTORED; THE TRIAL COURT IS WARNED THAT GALAVIZ IS "MARGINALLY COMPETENT," HE MUST REMAIN ON PRESCRIBED MEDICATION, AND A SPEEDY TRIAL "IS IMPORTANT FOR MAINTENANCE OF TRIAL COMPETENCY ."

In August 1995, medical staff at Patton State Hospital prepared a report recommending that Galaviz be returned to court to stand trial because he had been restored to competency. The report cautioned, however, "it is critical that Mr. Galaviz continue taking the prescribed medications while in custody to ensure continued competency." In September 1995, the medical director of Patton State Hospital certified that Galaviz was then mentally competent. The certification cautioned: "Please authorize a hearing in this matter. A speedy trial is important for maintenance of trial competency."

In a report dated October 1995, Dr. Klatte stated: "Mr. Galaviz suffers from a very severe and chronic mental illness and in all probability will remain so for the remainder of his life and will never be able to function on his own in society without some form of protective care. He still manifests most of the same delusions he expressed when I examined him in January 1995 however he has improved enough to be able to carry on a reasonable conversation. Regards his ability to stand trial his condition is marginal. ... Certainly he is not able to fully understand all the ramifications of his case however I believe he is as able to work with his attorney as well as he is going to get and he is willing to do so. I would be inclined to find him able to work with his attorney. Regards his condition at the time of the incidents there seems no

Our record does not show that either counsel or the trial court followed up on Dr. Sharma's statements regarding his concerns about Galaviz's competence to stand trial. Instead, on April 29, 1996, Dr. Sharma was appointed to provide a supplemental report addressing Galaviz's sanity at the time of the commission of the two charged offenses. Dr. Sharma reexamined Galaviz on May 31 and was provided the relevant police reports he had referred to in his January report.

Dr. Sharma's supplemental report, dated July 29, 1996 and filed July 30, 1996 (the record does not explain two-month delay between the reexamination of Galaviz and the preparation of the supplemental report), reiterated the scope of his appointment: "[T]o assess the defendant's sanity for the two incidents of criminal behavior."

In September 1996, the trial court issued an order committing Galaviz for treatment in a state institution due to insanity under Penal Code section 1026. The order reflected that Galaviz faced a maximum term of 60 years if sentenced to state prison. Galaviz did not appeal from the order of commitment or any prior proceedings.

Five days after his admission to Patton State Hospital, medical staff reported on September 24, 1996 that Galaviz had been a difficult patient. The report stated: "He responds to unseen stimuli much of the time. On 9/20/96 he was found laying on dayroom floor not responding to verbal stimuli. When staff assisted him up, he became combative striking out at staff. He has required restraints continuously since, because of his ongoing symptoms of psychosis, hostility, and unpredictability."

The record also contains periodic reports regarding Galaviz's mental state during his commitment since September 1996, and the court's consideration and denials of Galaviz's periodic applications for a determination of the restoration of his sanity.

V.

AUGUST 2014: GALAVIZ FILES A PETITION FOR A WRIT OF HABEAS CORPUS IN THE TRIAL COURT, WHICH IS DENIED IN 2017 .

Beginning in November 2010, Galaviz filed petitions for a writ of habeas corpus in the trial court, in the California Supreme Court, and in the United States District Court.

In August 2014, Galaviz filed his most recent petition for a writ of habeas corpus in the trial court. The trial court issued an order to show cause and for formal briefing. The trial court thereafter held an evidentiary hearing over

The court found there had been no substantial change in Galaviz's circumstances or new evidence presented that would have cast doubt on the court's prior finding of mental competency under state and federal law. The court concluded the trial court had no reason prior to the beginning of trial to entertain a reasonable, bona fide doubt about Galaviz's mental competency to warrant the need to conduct a second competency hearing. The court also rejected Galaviz's argument he had received ineffective assistance of counsel because

WE INDEPENDENTLY REVIEW THE RECORD IN OUR CONSIDERATION OF THE INSTANT PETITION FOR A WRIT OF HABEAS CORPUS .

"Where, as here, the superior court has denied habeas corpus relief after an evidentiary hearing (viz., the hearing held on the order to show cause ordered in response to petitioner's first habeas corpus petition) and a new petition for habeas corpus is thereafter presented to an appellate court based upon the transcript of the evidentiary proceedings conducted in the superior court, 'the appellate court is not bound by the factual determinations [made below] but, rather, independently evaluates the evidence and makes its own factual determinations.' ... [¶] While our review of the record is independent and 'we may reach a different conclusion on an independent examination of the evidence ... even where the evidence is conflicting' [citation], any factual determinations made below 'are entitled to great weight ... when supported by the record, particularly with respect to questions of or depending upon the credibility of witnesses the [superior court] heard and observed.' [Citations.] On the other hand, if 'our difference of opinion with the lower court ... is not based on the credibility of live testimony, such deference is inappropriate.' " ( In re Resendiz (2001) 25 Cal.4th 230 , 249, 105 Cal.Rptr.2d 431 , 19 P.3d 1171 ; see In re Sodersten (2007) 146 Cal.App.4th 1163 , 1223, 53 Cal.Rptr.3d 572 [same].)

THE TRIAL COURT ERRED BY FAILING TO HOLD A MENTAL COMPETENCY HEARING BEFORE CONDUCTING THE TRIAL IN 1996 BECAUSE SUBSTANTIAL EVIDENCE RAISED A REASONABLE OR BONA FIDE DOUBT CONCERNING GALAVIZ'S COMPETENCE AT THAT TIME .

A.

The United States Constitution and Penal Code Section 1367 Prohibit Trying or Convicting a Criminal Defendant While He or She Is Mentally Incompetent.

In Lightsey, supra, 54 Cal.4th at pages 690 to 691, 143 Cal.Rptr.3d 589 , 279 P.3d 1072 , the California Supreme Court explained federal and state standards of mental competence as follows:

"The United States Supreme Court has 'repeatedly and consistently recognized that "the criminal trial of an incompetent defendant violates due

B.

In the Time Period After Galaviz Had Been Found to Have Been Restored to Competency in November 1995 and Before the August 1996 Trial, the Trial Court Was Presented with Evidence Raising a Serious Doubt About Whether Galaviz Was Competent, but Did Not Hold Another Required Competency Hearing.

In April 1995, six months after Galaviz was charged with possession of methamphetamine, the trial court found Galaviz mentally incompetent, suspended criminal proceedings, and ordered him committed to Patton State Hospital pursuant to Penal Code section 1368. Five months later, the

BASED ON THE TOTALITY OF THE CIRCUMSTANCES, A RETROSPECTIVE COMPETENCY HEARING IS NOT FEASIBLE IN THIS CASE TO CURE THE TRIAL COURT'S OTHERWISE REVERSIBLE ERROR IN FAILING TO HOLD A SUBSEQUENT COMPETENCY HEARING BEFORE TRIAL .

A.

Retrospective Competency Hearings Generally

In People v. Kaplan, supra, 149 Cal.App.4th at pages 387 to 389, 57 Cal.Rptr.3d 143 , a panel of this court reviewed the history of retrospective competency hearings as follows:

"The California Supreme Court in People v. Young, supra, 34 Cal.4th 1149 , 1216-1217 [ 24 Cal.Rptr.3d 112 , 105 P.3d 487 ], stated, 'where the substantial evidence test is satisfied and a full competence hearing is required but the trial court fails to hold one, the judgment must be reversed. [Citation.]' In a footnote, and without approving or disapproving the case, the Supreme Court cited People v. Ary (2004) 118 Cal.App.4th 1016 , 1025-1029 [ 13 Cal.Rptr.3d 482 ]... for the proposition that 'in some circumstances, a remand may be appropriate and reversal for such error might be unnecessary.' ( People v. Young, supra, 34 Cal.4th at p. 1217, fn. 16 [ 24 Cal.Rptr.3d 112 , 105 P.3d 487 ].)

"In People v. Ary, supra, 118 Cal.App.4th at pages 1027-1028 [ 13 Cal.Rptr.3d 482 ], the appellate court concluded that retrospective competency hearings might be constitutionally permissible in specific cases. (See Drope v. Missouri (1975) 420 U.S. 162 , 183 [ 95 S.Ct. 896 , 43 L.Ed.2d 103 ] [accepting possibility of constitutionally adequate postappeal evaluation of defendant's pretrial competence]; People v. Superior Court ( Marks ) (1991) 1 Cal.4th 56 , 67 [ 2 Cal.Rptr.2d 389 , 820 P.2d 613 ] [citing reference in Drope v. Missouri about possibility of constitutionally adequate postappeal competency evaluation]; People v. Castro (2000) 78 Cal.App.4th 1402 , 1419 [ 93 Cal.Rptr.2d 770 ] ['the California Supreme Court has adopted the view that the United States Supreme Court "accept[s] the possibility of a constitutionally adequate posttrial or even postappeal evaluation of the defendant's pretrial competence" '].)

"In People v. Ary, supra, 118 Cal.App.4th at page 1028 [ 13 Cal.Rptr.3d 482 ], the court stated, 'it is the rare case in which a meaningful retrospective competency determination will be possible. The inherent difficulty of such a determination, of

Unlike Kaplan and Lightsey, the Trial Court Has Already Conducted an Evidentiary Hearing "Akin to a Retrospective Competency Hearing" and the Record from that Hearing Shows that Under the Circumstances of this Case, a Retrospective Competency Hearing Is Not Feasible.

In Lightsey, supra, 54 Cal.4th at page 710, 143 Cal.Rptr.3d 589 , 279 P.3d 1072 , the California Supreme Court gave the trial court the following guidance in determining whether a retrospective competency hearing would be feasible: "Before conducting the retrospective competency hearing, the trial court must determine whether such a hearing will be feasible. What we stated in People v. Ary, supra, 51 Cal.4th 510 [ 120 Cal.Rptr.3d 431 , 246 P.3d 322 ], regarding a retrospective competency hearing to remedy Pate [ v. Robinson ] error is equally applicable here: 'Feasibility in this context means the availability of sufficient evidence to reliably determine the defendant's mental competence when tried earlier. In the words of the Oklahoma Court of Criminal Appeals: "[T]he defendant will be placed in a position comparable

DISPOSITION

The petition for a writ of habeas corpus is granted. We remand to the trial court to strike the commitment order and permit Galaviz to withdraw his plea of not guilty by reason of insanity to the charges alleged in the second amended information.

WE CONCUR:

O'LEARY, P. J.

IKOLA, J.

In the supplemental report, Dr. Sharma reiterated that Galaviz was a "chronically mentally ill individual who was suffering from a major mental illness at the time of both alleged crimes." In the report, Dr. Sharma described Galaviz's thinking and responses during the interview as "bizarre." The report further stated: "He wanted help of this examiner to return to his home. However he describes his home to be in another galaxy named 'Zexxe.' ... He claims he was hunted by other 'people' on his galaxy and his 'father' sent him to earth to be 'replaced.' His home galaxy is in the '7th dimension' and 17 light years from earth. He believes he has to be killed to return back to his native galaxy. He asks this examiner to call Dr. Kevorkian of Michigan to help him die. These are just some examples of his peculiar thinking." It is not clear whether Dr. Sharma's summary of Galaviz's comments was based on his prior interview of Galaviz or his May 1996 interview of Galaviz, or both. Dr. Sharma concluded that Galaviz's delusions caused him to believe he was protecting himself in committing the assault offense and thus Galaviz was legally insane at the time of the commission of that offense, but that "[t]he drug charge was not directly related to his mental illness, even though he was profoundly mentally ill and without medication."

Our record does not show Dr. Sharma, or any other mental health professional, was thereafter asked to address Galaviz's competence to stand trial.

Before trial began, the trial court advised Galaviz of his constitutional right to a jury trial; Galaviz waived that right and requested to proceed with a bench trial. Galaviz acknowledged receipt of the newly-filed second amended information and the court accepted his plea of not guilty by reason of insanity to all charges and allegations. Based on preliminary hearing transcripts and all other evidence, the court found Galaviz guilty of both counts, found true the infliction of great bodily injury sentencing enhancement allegation pursuant to Penal Code section 12022.7, and found true two prior conviction allegations pursuant to Penal Code section 667, subdivision (a)(1), qualifying Galaviz for a maximum prison sentence of 60 years to life.

JULY 2017: THE INSTANT PETITION FOR A WRIT OF HABEAS CORPUS IS FILED; ADDITIONAL BRIEFING AT OUR REQUEST

In July 2017, Galaviz filed the instant petition for a writ of habeas corpus in this court which states Galaviz remains involuntarily committed at Napa State Hospital. Galaviz is represented by the Federal Public Defender pursuant to the United States District Court's appointment of the Federal Public Defender in case No. CV-11-01352-ODW(SS) (C.D. Cal.). The petition states that pursuant to section 2254(b)(1)(A) of title 28 of the United States Code, Galaviz's petition in this court is necessary for him to exhaust available state court remedies before the federal court may grant relief. According to the petition, the United States District Court has not formally stayed its proceedings on Galaviz's second amended petition for a writ of habeas corpus, but has ordered counsel to provide periodic updates on the state court proceedings.

In the instant petition, Galaviz argues his constitutional rights were violated because (1) he was mentally incompetent at the time of trial; (2) the trial court should have held a mental competency hearing before proceeding with the trial; and (3) he received ineffective assistance of counsel because his trial counsel failed to request a competency hearing, failed to present

Both parties filed briefs that included responses to our questions. On our own motion, as set forth in a prior order, we have taken judicial notice of the trial court record in People v. Galaviz, superior court case No. 94CF2702.

In November 1995, the trial court found Galaviz no longer mentally incompetent and terminated competency proceedings. The prosecutor, Galaviz, and Galaviz's attorney stipulated to Galaviz's competency to stand trial, and Galaviz entered a plea of not guilty by reason of insanity.

Dr. Sharma, who had been appointed by the court to evaluate whether Galaviz was legally insane at the time of the commission of the charged offenses, informed the court in his January 29, 1996 report (filed in the trial court on February 26, 1996) that he "had questions regarding defendant's ability to provide meaningful information and to rationally cooperate with others." He acknowledged, however, that he had not been tasked to evaluate Galaviz's competency to stand trial.

Notwithstanding Galaviz's marginal competence in November 1995 and Dr. Sharma's subsequent comments expressing concern that Galaviz was not competent to stand trial, our record does not show that either Dr. Sharma or any other mental health professional was asked by counsel or the court to

The trial court therefore erred by failing to conduct a subsequent competency hearing, which constitutes reversible error unless it is feasible for that error to be cured by conducting a retrospective competency hearing. For the

"The court in People v. Ary, supra, 118 Cal.App.4th at page 1029 [ 13 Cal.Rptr.3d 482 ], concluded, '[i]t is only because of the highly unusual nature of this case that we remand this matter to the trial court for a determination as to whether such a hearing is possible. During pretrial hearings held in 1999 and 2000 on defendant's competence to waive his Miranda [ v. Arizona (1966) 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 ] rights and the voluntariness of his confession, extensive expert testimony and evidence was proffered regarding defendant's mental retardation and his ability to function in the legal arena. Much of this information would be relevant in a competency hearing. Although we could remand this matter and order a competency hearing to be held, we instead take the additional step of directing the trial court to determine whether the available evidence and witnesses are sufficient to permit it to reach a "reasonable psychiatric judgment" of defendant's competence to stand trial. [Citation.] Pertinent to, but not necessarily determinative of, this issue is whether the experts who examined defendant in 1999 and 2000 are available and able to render an opinion about defendant's competence to stand trial in 1999 and 2000. On remand, therefore, the People will have the burden of establishing that a retrospective competency hearing can be held.' "

In Lightsey, supra, 54 Cal.4th at page 706, 143 Cal.Rptr.3d 589 , 279 P.3d 1072 , the California Supreme Court concluded that in the circumstances of the case, it was appropriate and permissible for the court to "order[ ] a limited reversal and remand for the trial court to determine whether a retrospective competency hearing is feasible and, if so, to conduct such a hearing."

In Lightsey, supra, 54 Cal.4th at pages 710 to 711, 143 Cal.Rptr.3d 589 , 279 P.3d 1072 , the Supreme Court further stated, referring to the facts of the case before it: "In making its feasibility determination, the court must consider the fairness of requiring defendant, who has already established a reversible statutory violation, to prove his incompetence to stand trial in 1994 with the now 18-year-old evidence of his prior mental condition still available to him today. ... Because of the inherent difficulties in attempting to look back to the defendant's past mental state [citation], the burden of persuasion will be on the People to convince the trial court by a preponderance of the evidence that a retrospective competency hearing is feasible in this case ." (Italics added.)

Here, unlike the circumstances of Kaplan and Lightsey , we do not need to remand to the trial court to conduct a hearing on whether a retrospective

The prosecution had the burden of persuasion to show "a retrospective competency hearing would provide [Galaviz] a fair opportunity to prove incompetence" as opposed to showing "merely whether some evidence exists by which the trier of fact might reach a decision on the subject." ( Lightsey, supra, 54 Cal.4th at p. 710, 143 Cal.Rptr.3d 589 , 279 P.3d 1072 .) Viewing the totality of the circumstances, including the above-analyzed feasibility factors combined with Galaviz's