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Name: People v. Kirvin
Case #: B246329
Court: CA Court of Appeal
District 2 DCA
Division: 2
Opinion Date: 12/04/2014

Substantial evidence supported the trial court’s competency determination where two experts agreed that defendant understood the charges and proceedings, but only one found him to be competent. Before Kirvin’s trial, the court declared a doubt about his competence, suspended proceedings under Penal Code section 1368, and appointed two mental health experts to evaluate him. The experts agreed that Kirvin understood the nature of the charges against him and what was at stake, but they reached different conclusions regarding Kirvin’s ability to assist in his defense. The court appointed a third expert, but Kirvin refused to meet with him. That expert, based on available documents and the fact that Kirvin was not being housed in the jail’s psychiatric unit, opined that Kirvin had not overcome the presumption of competence. The court ruled that Kirvin had not rebutted the statutory presumption of competency and the case proceeded to trial. The jury convicted Kirvin. He raised a number of issues on appeal, including that the trial court improperly relied on an expert who had not interviewed him and on the jail officials’ decision not to place him in a mental health unit. Held: Affirmed. The defendant bears the burden of proving his incompetency by a preponderance of the evidence. The expert who found Kirvin competent coupled with the court’s own observations “provided ample basis for the court to find that [Kirvin] had not rebutted the presumption of competency.” The court did not rely on the opinion of the third expert who did not interview Kirvin, but, even if it had, the court may rely on an expert’s report that is not based on a face-to-face interview when the subject refuses to meet with the expert. (People v. Johnson (2012) 53 Cal.4th 519, 533.) Even if the court relied on extraneous information, like the jail officials’ decision not to place him in a mental health unit, it “does not undermine the otherwise substantial evidence.”

Trial court properly denied Faretta motion based on defendant’s repeated refusals to come to court and obey court orders to meet with a court-appointed expert. After the trial court found Kirvin competent to stand trial, he made a motion to represent himself. The trial court denied the motion due to Kirvin’s out-of-court misconduct, namely, his repeated refusals to come to court and meet with a mental health expert, and his “showering jail officials with his excrement.” Kirvin appealed the denial of his motion to represent himself. Held: Affirmed. A defendant’s right to represent himself at trial is not absolute. A defendant’s out-of-court misconduct can warrant denial of his right to represent himself as long as there is a nexus between that misconduct and the trial process. Although there is an insufficient nexus between ordinary misconduct while incarcerated and the trial process (People v. Butler (2009) 47 Cal.4th 814, 826-827), the trial court did not abuse its discretion by concluding that Kirvin’s willful absences from court and interviews with experts would seriously threaten the core integrity of the trial. In People v. Carson (2005) 35 Cal.4th 1, 10-11, the court noted that a defendant’s refusal to sit in the appropriate place in the courtroom was a proper basis for denying the right to self-representation. The appellate court here reasoned that Kirvin’s total absence from the courtroom was a more serious threat to the trial process than a defendant’s refusal to sit in the proper place. Accordingly, the trial court properly denied his Faretta motion.

The “converse Bailey” doctrine does not bar defendant’s multiple convictions for attempting to dissuade a witness (Pen. Code, § 136.1) even though each offense was directed toward the same goal of dissuading one witness from testifying. Kirvin was arrested after he punched his girlfriend Cambell in the eye and grabbed her arm so hard it bruised. While he was in jail, Kirvin called his sister several times asking her to dissuade Cambell from testifying. He was subsequently charged and convicted of multiple counts of attempting to dissuade a witness (Pen. Code, § 136.1, subd. (b)(2)). Kirvin appealed, arguing that multiple convictions were improper under the doctrine articulated in People v. Bailey (1961) 55 Cal.2d 514, because all his attempts to dissuade a witness were directed toward the same goal. Held: Affirmed. Under the “converse Bailey” doctrine, criminal defendants have “the right to insist upon the dismissal of all but one conviction when multiple crimes are unified by a single intent, impulse or plan.” The converse Bailey doctrine applies to crimes that treat harm or damage as one of their elements, and which permit the prosecution to aggregate that harm or damage (such as theft and vandalism), and courts have not applied it to other offenses that do not monetize or aggregate harm or damage (such as insurance fraud, forgery, burglary, sex crimes, and identity theft). Dissuading a witness falls into the second category because it is not a crime for which harm is monetized or aggregated. The court declined to expand the converse Bailey doctrine in this case. Kirvin committed a separate violation of section 136.1, subdivision (b)(2) each time he placed a call to his sister urging her to persuade Cambell not to go to court; it was irrelevant that each call was directed towards the same goal.

Domestic violence restitution fine (Pen. Code, § 1203.097, subd.(a)(5)(A)) cannot be imposed if the defendant is sentenced to prison. In addition to convicting Kirvin of multiple counts of attempting to dissuade a witness, the jury also convicted him of two counts of misdemeanor battery in a dating relationship (Pen. Code, § 243, subd. (e)(1)). The trial court sentenced Kirvin to prison and imposed a $200 domestic violence restitution fine under Penal Code section 1203.097, subdivision (a)(5)(A). Kirvin appealed, arguing that the trial court improperly imposed the fine. Held: Abstract of judgment modified. The domestic violence restitution fine set forth in section 1203.097, subdivision (a)(5)(A) is to be imposed only when a defendant is “granted probation.” Since Kirvin was sentenced to prison and was not granted probation, the trial court improperly imposed the fine.