P. v. Samuels

Filed 12/1/05 P. v. Samuels CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, v. JOE SAMUELS, Defendant and Appellant.

B175110 (Los Angeles County Super. Ct. No. GA047283)

APPEAL from a judgment of the Superior Court of Los Angeles County. Teri Schwartz, Judge. Affirmed.

Cheryl Barnes Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Ana R. Duarte and Linda C. Johnson, Deputy Attorneys General, for Plaintiff and Respondent.

_________________

A jury convicted appellant Joe Samuels of two counts of robbery (Pen. Code, § 211)[1] (counts 1 and 2 ), first degree burglary (§ 459) (count 4), false imprisonment by violence or menace (§ 236) (count 6), possession of a firearm by a felon (§ 12021, subd. (a)(1)) (count 8), and false imprisonment of a hostage (§ 210.5) (count 9). The jury found true with respect to the robberies that appellant personally used a firearm within the meaning of section 12022.53, subdivision (b). The jury found true the allegation that a person was present during the commission of the burglary in count 4.

In the second portion of the bifurcated proceeding, the jury found true the allegations that appellant had suffered four prior serious felony convictions within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i) (the three strikes law). The jury found true the allegation that appellant had suffered a prior prison term within the meaning of section 667.5, subdivision (b).

The trial court sentenced appellant to 100 years to life. On counts 1, 2, and 9, the trial court imposed consecutive sentences of 25 years to life. On counts 1 and 2 the trial court imposed 10-year firearm enhancements. The trial court imposed a five-year enhancement pursuant to section 667, subdivision (a) and struck the prison-prior allegation. The trial court stayed the sentences imposed in counts 4 and 8 pursuant to section 654 and granted the People’s motion to dismiss count 6.

Appellant appeals on the grounds that: (1) the trial court erred by allowing testimony concerning appellant’s mental state to be admitted at the guilt phase of trial, and (2) the trial court erred by instructing the jury with CALJIC No. 8.21.1, which is relevant to the duration of robbery for the purposes of the felony-murder rule.

FACTS

I. Prosecution Evidence

At approximately 8:45 p.m. on September 5, 2001, Marlyn Madrigal (Madrigal) and Tanya Andino (Andino) left the Santa Anita Mall and walked toward Madrigal’s car, which was parked outside the Macy’s store. As she walked, Madrigal noticed that a silver sports utility vehicle (SUV) without a license plate was backed into a parking stall approximately three cars away from hers. Madrigal opened her car trunk and was putting her shopping bags inside when an African-American man approached her and Andino and asked for their purses. He was wearing a plaid jacket and fisherman’s hat, and he held a gun down by his side. Both women handed over their purses, and Madrigal gave him her watch when the man asked for it. The man told the women to walk away from the car. As they left, they heard a vehicle leave. Andino turned around and saw the back of a silver SUV with an American flag in the rear license plate area. Madrigal and Andino caught the attention of two other women and asked them to call 911. From the parking lot, Madrigal could see the silver SUV stopped at a light on Huntington Drive, just in front of the mall.

Officer Robert Bartley of the Arcadia Police Department heard the radio call regarding the robbery when he was one-half block from the mall. The broadcast identified the suspects as two Black males in a gray SUV. Officer Bartley saw such a car as he drove through the intersection at Huntington Drive, and he shone his spotlight into the car. He saw it was occupied by two African-American males. When Officer Bartley made eye contact with the occupants, the SUV proceeded through the red light. Officer Bartley activated his lights and pursued the SUV. The SUV led Officer Bartley on a chase that ended in the driveway of 945 West Huntington Drive. Both men got out of the SUV and ran away. The driver, Treadell Dixon (Dixon), was eventually apprehended by another officer who had joined the pursuit. The passenger ran down the driveway and disappeared.

At approximately 9:00 p.m., Patsy Plumlee (Plumlee) was watching television in her den with the lights out and the patio door open. She heard a noise and then heard the screen door of the patio door open and close. A man entered her home and approached her. He put his arm around her neck, saying, “Just be quiet. I won’t hurt you if you be quiet.” The man forced her into the master bedroom. He made Plumlee write a letter to his girlfriend, Blanca Gonzalez, and his children on his behalf. The letter bore his name, Joe Samuels. Plumlee heard the sound of a helicopter, and there was a loud knock at the door. Appellant told Plumlee to be quiet and said he would leave if the police went away. After a time, Plumlee heard someone announce “Arcadia Police Department” inside her home. Appellant opened the bedroom door slightly and yelled, “Copper, get out of here. I have a hostage and a weapon.”

The police left the home and tried to convince appellant to come out. Appellant moved dressers in front of the bedroom and bathroom doors. He told Plumlee he was afraid of going to prison because of his “strikes.” Plumlee noticed two women’s purses in the room, and appellant told her he had taken them from two women at Santa Anita Mall. Appellant eventually decided to release Plumlee. He moved the dresser blocking the bedroom door, and Plumlee left the home through the front door at approximately 5:30 a.m. Some time later, appellant came out of the bedroom window after a tear-gas canister was fired into the room.

Police found wallets apparently belonging to Andino and Madrigal as well as two purses inside Plumlee’s bedroom. A dark blue fisherman’s hat was found outside the parked SUV. Inside the SUV, police found a shirt with appellant’s social security card and California identification in the pocket. Madrigal’s watch was found inside the SUV. Police found a two-inch blue steel revolver lying in the grass of an apartment complex near the intersection of Huntington Drive and Golden West Avenue.

When shown a photographic lineup, Plumlee selected appellant’s photograph. She said that appellant shone a flashlight on his face so that she could see what he looked like. Police showed Madrigal a photographic lineup on the day after the robbery. She selected appellant’s photograph and was positive of her identification. At trial, she could not positively identify appellant. Andino also chose appellant’s photograph from the lineup. Andino identified appellant at trial as the robber and was certain of her identification. She noted that appellant was thinner at trial, his hair looked different, and he had a beard.

The prosecutor presented evidence that appellant’s fingerprints matched the fingerprints contained in appellant’s prison records.

II. Defense Evidence

Appellant testified that he had never seen Madrigal and Andino in his life. He did not recall them testifying in the trial. He said police went to his grandmother’s house to pick him up, and they kicked, punched, and choked him. He did not recognize Plumlee, was never at her house, and claimed he was being set up. He asked, “Why am I here? What’s the big deal?” He claimed he did not have a gun, and he did not recall his police interview. He said he had gone to prison before for a robbery and had stayed three or four days. He asserted he did not know a Blanca Gonzalez.

III. Rebuttal Evidence

The prosecution called Dr. Kory Knapke to rebut appellant’s testimony. Dr. Knapke’s testimony is the subject of appellant’s first issue on appeal, and its content is related in the discussion of that issue.

DISCUSSION

I. Testimony Regarding Appellant’s Mental State

A. Appellant’s Argument

Appellant contends that Dr. Knapke’s testimony was erroneously admitted, since it was based on appellant’s statements to Dr. Knapke during appellant’s mental competence examination. Appellant maintains that his mental state was not at issue at trial because he did not claim he was innocent by reason of his mental condition, did not explicitly claim to be mentally ill, and did not offer any defense related to mental illness. Appellant claims he suffered prejudice because the evidence of his personal use of a firearm was not compelling. He argues that, absent the erroneously admitted testimony, the jury might have submitted a finding of “not true” on the firearm-use allegation, and he would have avoided the 20-year enhancement.

B. Proceedings Below

During Officer Scott Pawlicki’s testimony, the prosecutor inquired whether Officer Pawlicki had been observing appellant’s demeanor during his testimony. Officer Pawlicki stated that he had, and that it appeared appellant was inattentive to what was going on.

Later in the proceeding, defense counsel told the trial court outside the presence of the jury that appellant had told him that everyone was talking in riddles and laughing. Appellant claimed he did not understand what was going on. Counsel expressed a doubt as to appellant’s competence, stating that appellant was not in a position to assist counsel during trial. The trial court noted for the record that appellant had been inattentive throughout the trial and had sat looking down most of the time. The trial court saw nothing new in appellant’s demeanor that would warrant adjournment of the proceedings. The trial court believed appellant’s comments to his attorney were the result of malingering and feigning incompetence. The trial court’s belief was consistent with the reports that were submitted to it for the purpose of determining appellant’s competence to stand trial at an earlier date.

After appellant’s testimony, the prosecutor stated she had several doctors on call for rebuttal testimony, including Dr. Knapke. Defense counsel argued that the consultation between Dr. Knapke and appellant was confidential because it formed part of a section 1368 determination.[2] Counsel noted he had not entered a plea claiming appellant was not guilty by reason of insanity.

The trial court responded that the People were entitled to rebut the evidence presented by a defendant’s testimony. In addition to denying all responsibility for the crimes, appellant had claimed he did not recall anything that occurred in the courtroom during the entire trial. He also denied being the person identified by the witnesses in the photographic lineup. The jury had a right to know that appellant might be less than truthful in his statements about what he could and could not recall. Also, his appearance might lead one to question whether he was aware of what was occurring. The trial court stated that the confidential evaluations were “fair game” once presented to the trial court, and appellant no longer could claim a privilege regarding their contents, as long as the testifying doctor was limited to the issue of whether or not appellant was able to understand the proceedings. There was nothing in any of the numerous doctors’ reports to justify appellant’s demeanor while testifying, other than his reported malingering. Appellant had maintained a perplexed look on his face while testifying, as if he did not understand any of the prosecutor’s questions. Yet he answered several questions in a coherent manner. The trial court believed the jury might be wondering why appellant did not remember anything that had gone on, and it was fair for the People to rebut the credibility of appellant’s testimony. The trial court stated that the expert’s testimony would be limited to the issue of whether appellant was able to understand the proceedings.

Before Dr. Knapke took the stand, defense counsel made a relevance objection to Dr. Knapke’s report and an objection based on Evidence Code section 352, stating that if the jury heard the term “malingering” the consequences would be devastating for appellant. The trial court found that the report was relevant because it was consistent with the occurrences of the case; i.e., appellant’s attempt to feign mental illness. The trial court also found that the report was extremely probative on the issue of appellant’s credibility, and the prejudicial effect would be minimal in light of the evidence already presented. The trial court ruled that Dr. Knapke could testify regarding the psychiatric records he relied upon to form his opinion.

Dr. Knapke began his testimony with a recitation of his qualifications, including those in forensic psychiatry. Dr. Knapke then responded to the prosecutor’s questions regarding his meetings with appellant. He said that after meeting with appellant on February 18, 2003, and August 19, 2003, and after reviewing various documents related to appellant, he formed the opinion that appellant was competent to stand trial. When asked if he believed appellant was able to understand the proceedings, Dr. Knapke said he believed “that Mr. Samuels does understand the proceedings.” The principal basis for this opinion was Dr. Knapke’s belief that appellant was feigning psychiatric symptoms and was not suffering from a severe mental illness. He stated that individuals with a mental disorder tend to have an extensive history of psychiatric problems. Dr. Knapke had also reviewed documents from numerous psychiatrists and clinicians who suspected appellant was feigning psychiatric symptoms. Appellant was reported to have made bizarre comments to an evaluator only to walk away and speak coherently with staff and other inmates.

At this point in Dr. Knapke’s testimony, defense counsel posed a hearsay objection. The trial court overruled the objection and informed the jury that, as an expert witness, Dr. Knapke was entitled to rely on “other information” to explain his opinion. The trial court cautioned the jury not to rely on the other information as evidence.

Dr. Knapke next testified that appellant did not want to be housed in the central jail because it is a dangerous place. He stated that the materials he received indicated that appellant had cut both of his wrists in order to be transferred to the Twin Towers facility for mentally disordered inmates.

Dr. Knapke gave examples of appellant’s inconsistencies. When Dr. Knapke asked appellant who Blanca Gonzalez was, appellant initially claimed he did not know. He then admitted she was his girlfriend. He also claimed not to know Dixon, his accomplice, but then stated Dixon worked for him. He had previously told police Dixon was his cousin, but he would not admit this to Dr. Knapke.

Dr. Knapke stated that another basis for his opinion was that appellant frequently changed the stories he told to various interviewers. Appellant was vague during his interviews with Dr. Knapke and would claim not to know something, but later admit to knowledge. Dr. Knapke stated that someone with a severe mental illness is fairly consistent with factual information. Appellant was unable to give basic facts about himself, and unable to count to 10 or say the alphabet at times. These symptoms are not characteristic of someone with schizophrenia or another severe mental illness.

Dr. Knapke stated that, although appellant was diagnosed with numerous mental illnesses by different doctors, these doctors did not have all the information available to a forensic evaluator. Varying diagnoses often occur when a patient is trying to portray himself as mentally ill.

C. Relevant Authority

In Tarantino v. Superior Court (1975) 48 Cal.App.3d 465 (Tarantino), the court established the rule that “neither 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 [the defendant’s] guilt . . . .” (Id. at p. 470.) The California Supreme Court adopted this rule in People v. Arcega (1982) 32 Cal.3d 504 (Arcega), stating, “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.) In Arcega, a psychiatrist who examined a defendant to determine his competence subsequently testified at the guilt phase of trial. The psychiatrist expressed the opinion that the defendant had the capacity to form the requisite mental state at the time of the crimes, an opinion based in large part on the results of the competence examination. (Id. at p. 517.)

Arcega also noted that in Estelle v. Smith (1981) 451 U.S. 454, the United States Supreme Court had recently ruled that a defendant’s Fifth Amendment privilege against self-incrimination is violated if the prosecution introduces at trial evidence of the defendant’s statements during a custodial mental competence examination, unless the defendant has been informed of his Miranda^[3] rights and waived them. (Arcega, supra, 32 Cal.3d at p. 523.) Following Arcega, People v. Harris (1987) 192 Cal.App.3d 943 held that if the prosecution wishes to rebut defense evidence regarding the defendant’s mental state, the prosecution must use psychiatrists other than those who examined the defendant for the purposes of a competence determination. (Id. at pp. 948-950; see also People v. Weaver (2001) 26 Cal.4th 876, 957-961 [admission of psychiatrists’ testimony at sanity phase, where psychiatrists had previously examined the defendant both concerning sanity and competence, violated the defendant’s privilege against self-incrimination].)[4]

D. Dr. Knapke’s Testimony Improperly Admitted; Harmless Error

Although Dr. Knapke’s testimony did not relate to appellant’s guilt of the charged offenses, the Arcega rule precludes not only the use of statements made by a defendant to a psychiatrist during a competence evaluation, but also the fruits of such statements. (Arcega, supra, 32 Cal.3d at p. 522.) Appellant’s statements regarding his inability to remember certain persons and facts and his concurrent accurate statements about other persons and facts provided Dr. Knapke with material on which to base his opinion that appellant was a malingerer who was feigning his symptoms.

It is true that the trial court’s comments for the record and appellant’s testimony indicate that appellant was clearly attempting to convey the appearance of mental illness at trial. However, to decide that appellant’s machinations rose to the level of putting his mental state at issue and thus constituted a waiver of his Fifth Amendment privilege with regard to the Dr. Knapke interview is too great a leap. The United States Supreme Court case of Buchanan v. Kentucky (1987) 483 U.S. 402 (Buchanan) indicates that more is needed.

In Buchanan, the court held that in cases where a defendant requests a psychiatric evaluation or presents psychiatric evidence the prosecution may rebut the defendant’s presentation with other psychological evidence. (Buchanan, supra, 483 U.S. at pp. 422-423.) In that case, the entire defense consisted of establishing extreme emotional disturbance, and the only defense witness was defendant’s former social worker, who read to the jury from reports and letters regarding defendant’s mental condition. (Id. at pp. 408-409, 423.) The prosecutor then successfully sought to rebut this evidence by having the social worker read from other reports, one of which was written after an evaluation of the defendant’s competence to stand trial. (Id. at pp. 410-412.) The court found no Fifth Amendment violation in this limited rebuttal, which did not describe any statements dealing with the charged crimes. (Id. at pp. 423-424.)

Following Buchanan, People v. Williams (1988) 44 Cal.3d 883 (Williams) held that when a defendant initiates a psychological examination by court-appointed experts, the admission of the defendant’s statements in a subsequent proceeding where he has placed his mental state at issue does not violate the Fifth Amendment. (Williams, supra, at pp. 961-962.) The court emphasized that, “[e]ven 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.)

In the instant case, appellant did not initiate a psychological evaluation. He offered no psychological testimony and presented no defense related to mental state. Therefore, it cannot be said he placed his mental state at issue, given the specific parameters laid out by Buchanan and Williams. Accordingly, Dr. Knapke’s rebuttal testimony should not have been admitted.

The erroneously admitted testimony was, however, harmless beyond a reasonable doubt. (Arcega, supra, 32 Cal.3d at p. 525 [employing standard of Chapman v. California (1967) 386 U.S. 18 in assessing prejudice].) Appellant argues only that, absent Dr. Knapke’s testimony, the jury might not have found the firearm-use enhancement to be true. We disagree and conclude there was strong evidence that appellant used the gun in the robbery, including the testimony of Madrigal and Andino and the audio recording of appellant’s statement to Officer Pawlicki, which was played for the jury, in which he admitted using a gun during the robberies. Therefore appellant’s credibility was already in question when he denied use of the gun at trial and, indeed, any participation at all in the robberies. Accordingly, because appellant’s credibility was suspect, and because there is no mental state required for a true finding on use of a firearm, Dr. Knapke’s testimony was harmless beyond a reasonable doubt in this case.

II. Reading of CALJIC No. 8.21.1

A. Proceedings Below

In relation to the burglary charge, the trial court read CALJIC No. 14.50, which stated the jury had to find appellant entered a building with the specific intent to “steal and take away someone else’s property and intended to deprive the owner permanently of that property, or at the time of the entry that person had the specific intent to commit the crime of robbery or false imprisonment of a hostage.” Immediately thereafter, the trial court read an amended version of CALJIC No. 8.21.1, as follows: “A robbery is still in progress after the original taking of physical possession of the stolen property while the perpetrator is in possession of the stolen property and fleeing in an attempt to escape. [¶] Likewise, it is still in progress as long as immediate pursuers are attempting to capture the perpetrator, or to regain the stolen property. [¶] A robbery is complete when the perpetrator has eluded any pursuers, has reached a place of temporary safety, and is in unchallenged possession of the stolen property after having effected an escape with the property.”

B. Appellant’s Argument

Appellant contends that this amended version of CALJIC No. 8.21.1 had no application to his case. According to appellant, the instruction allowed the jury to find him guilty of burglary on an impermissible theory that he entered Ms. Plumlee’s home with the specific intent to commit a robbery, referring to the robberies already committed at the Santa Anita Mall. Appellant argues there is no authority for stating that a burglary committed in the course of an escape from a robbery is an entry with the intent to commit the same robbery. Appellant claims he was prejudiced because the evidence in support of the alternate theory to establish the mental state for burglary ‑‑ intent to take a hostage ‑‑ was far from compelling. He argues that the jury may well have rejected this theory and relied upon the more convincing but erroneous theory of robbery.

C. Instruction Properly Read

The instruction regarding the continuing nature of robbery borrows verbatim the last two paragraphs of CALJIC No. 8.21.1, normally employed to assist the jury in determining whether an unlawful killing occurred during the commission of a robbery. The instruction as given by the trial court omitted the language pertaining to murder.

The continuing nature of the crime of robbery has been recognized in other contexts besides the commission of felony murder, and we see no impediment to its application in the circumstances of this case. (See People v. Carroll (1970) 1 Cal.3d 581, 585 [infliction of great bodily injury during robbery properly found when defendant had not reached place of temporary safety before shooting fleeing victim].) With respect to the intent requirement of burglary, it is well-established that a defendant need not intend to commit a crime in the same premises he has entered in order to commit a burglary. (People v. Ortega (1992) 11 Cal.App.4th 691, 694.) In People v. Griffin (2001) 90 Cal.App.4th 741 (Griffin), for example, the defendants contended there was insufficient evidence of an intent to steal or commit any felony when they entered an apartment looking for someone whom they intended to assault at a place and time separate and distinct from the time and place of entry. (Id. at pp. 748-749.) The court held that the entry was closely connected with and made to facilitate the intended assault, and the element of intent for burglary was satisfied. (Id. at p. 749.)

As for the temporal relationship between the robberies and burglary in this case, appellant clearly entered Plumlee’s residence with the intent to facilitate commission of the robberies, since the robberies had not yet been completed. As stated in People v Kwok (198) 63 Cal.App.4th 1236, “temporal or spatial proximity between the entry and the target or predicate crime are factors that may reasonably be considered by the jury when determining whether the requisite intent existed at the moment of entry, but they are not elements of the crime of burglary.” (Id. at p. 1246.) In Kwok, the defendant entered the victim’s home to remove a lock and have a key made for later ease of entry to perpetrate an assault of the victim. (Id. at pp. 1243, 1245, 1248.) Although both Griffin and Kwok were cases in which the entry was performed to facilitate a future felony, these cases illustrate that the temporal relationship of the entry made with the intent to commit a felony and the commission of the actual felony is flexible. And, in the case of robbery, whose continuing nature is well-established, it would be anomalous to find that appellant did not enter Plumlee’s home with the intent to facilitate the ongoing felony crime of robbery.

The case of People v. Laursen (1972) 8 Cal.3d 192 (Laursen) illustrates the point in the context of a robbery and a subsequent kidnapping that were charged as kidnapping for the purpose of robbery within the meaning of section 209.[5] (Laursen, supra, at p. 195.) Laursen and an accomplice robbed a market and rushed to their car only to find it would not start. They were seen by a police officer and were being pursued when they entered the car of a man named Teeter and ordered him to drive them to a place of safety. (Id. at p. 196.) The robbers continued their escape with Teeter, who was eventually tied up and left in an orchard. (Id. at pp. 196-197.)

Laursen first argued on appeal that, because the intent to kidnap Teeter was not formed until after the commencement of the robbery, the kidnapping was merely an afterthought and could not be considered conduct proscribed by section 209, which required that the victim be carried away to commit robbery, an intent requirement. (Laursen, supra, 8 Cal.3d at pp. 197-198, fn. 4.) The Laursen court noted the rule that a kidnapping during which a robbery occurred did not constitute kidnapping for the purpose of robbery unless the specific intention to rob was present at the time of the original asportation. (Id. at p. 198.) The court stated, however, that it had never required that the kidnapping and robbery had to be simultaneously premeditated as a part of a single course of criminal conduct to violate section 209. No coexistence of intent to commit the two crimes need be present at the beginning of the “criminal transaction.” (Laursen, supra, at p. 199.)

Laursen also argued that the kidnapping and the robbery were separate crimes and that the robbery was complete before the kidnapping was committed. (Laursen, supra, 8 Cal.3d at p. 199.) In rejecting this argument, the Laursen court noted the continuing nature of the crime of robbery and concluded that the trier of fact could reasonably have found that kidnapping to effect a robber’s escape was prohibited by section 209.

The same reasoning applies to the crimes of robbery and burglary in this case. Appellant had not yet reached a place of temporary safety after committing the robberies. He was carrying the women’s handbags, and police were hot on his trail. Although there was no coexistence of the intent to commit a robbery and a burglary at the Santa Anita Mall, the jury could reasonably find that the burglary was committed to facilitate appellant’s escape from the robbery scene. Therefore, the instruction on the continuing nature of the crime of robbery was properly read to the jury.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________, J.

ASHMANN-GERST

We concur:

____________________, P. J.

BOREN

____________________, J.

DOI TODD

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[1] All further references are to the Penal Code unless otherwise indicated.

[2] Section 1368 sets out the procedure to be followed when a doubt arises prior to judgment as to the mental state of the defendant.

[3] Miranda v. Arizona (1966) 384 U.S. 436.

[4] On October 13, 2004, the California Supreme Court granted review in People v. Pokovitch, S127176, in which the Court of Appeal held that a defendant who committed perjury was properly impeached with statements he made during the evaluation of his competency to stand trial.

[5] Section 209, subdivision (b)(1) provides in pertinent part that “[a]ny person who kidnaps or carries away any individual to commit robbery . . . , shall be punished by . . . .” The pertinent language of section 209 as recited in Laursen is the same as in the current version of the statute, although the statute was not subdivided when Laursen was decided. (Laursen, supra, 8 Cal.3d at pp. 197-198, fn. 4.)