P. v. Super. Ct. (Vidal) 5/13/05 CA5

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: F045226A

Case Date: 07/27/2005

Preview:Filed 5/13/05 Opinion following transfer by Supreme Court

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT THE PEOPLE, F045226 Petitioner, v. (Tulare Co. Super. Ct. No. 69782-C) THE SUPERIOR COURT OF TULARE COUNTY, OPINION Respondent; JORGE JUNIOR VIDAL, Real Party in Interest. ORIGINAL PROCEEDING; Petition for Writ of Prohibition and/or Mandate and Request for Stay. William Silveira, Jr., Judge. Phillip J. Cline, Tulare County District Attorney, and Barbara J. Greaver, Deputy, for Petitioner. No appearance for Respondent. Michael Shetzer, Tulare County Public Defender, and Berry Robinson, Deputy, for Real Party in Interest. John T. Philipsborn, for California Attorneys for Criminal Justice, on behalf of Real Party in Interest. -ooOooSEE CONCURRING AND DISSENTING OPINION

In Atkins v. Virginia (2002) 536 U.S. 304 (Atkins), the United States Supreme Court held that the execution of mentally retarded criminals violates the Eighth Amendment to the United States Constitution. (Id. at p. 321.) The court reasoned that "clinical definitions of mental retardation require not only subaverage intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18. Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial. Because of their impairments, however, by definition they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others. There is no evidence that they are more likely to engage in criminal conduct than others, but there is abundant evidence that they often act on impulse rather than pursuant to a premeditated plan, and that in group settings they are followers rather than leaders. Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability." (Id. at p. 318, fns. omitted.) The court recognized that "[t]o the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded.... Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus. As was our approach ... with regard to insanity, `we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.' [Citation.]" (Atkins, supra, 536 U.S. at p. 317, fn. omitted.) The California Legislature responded by enacting Penal Code section 1376, which defines "mentally retarded," sets forth procedures for determining whether an accused is

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mentally retarded, and, if so, precludes imposition of the death penalty.1 In this case of first impression, we address various issues arising under this statute, which applies to

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All statutory references are to the Penal Code unless otherwise stated. Section 1376 provides:

"(a) As used in this section, `mentally retarded' means the condition of significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested before the age of 18. "(b)(1) In any case in which the prosecution seeks the death penalty, the defendant may, at a reasonable time prior to the commencement of trial, apply for an order directing that a mental retardation hearing be conducted. Upon the submission of a declaration by a qualified expert stating his or her opinion that the defendant is mentally retarded, the court shall order a hearing to determine whether the defendant is mentally retarded. At the request of the defendant, the court shall conduct the hearing without a jury prior to the commencement of the trial. The defendant's request for a court hearing prior to trial shall constitute a waiver of a jury hearing on the issue of mental retardation. If the defendant does not request a court hearing, the court shall order a jury hearing to determine if the defendant is mentally retarded. The jury hearing on mental retardation shall occur at the conclusion of the phase of the trial in which the jury has found the defendant guilty with a finding that one or more of the special circumstances enumerated in Section 190.2 are true. Except as provided in paragraph (3), the same jury shall make a finding that the defendant is mentally retarded, or that the defendant is not mentally retarded. "(2) For the purposes of the procedures set forth in this section, the court or jury shall decide only the question of the defendant's mental retardation. The defendant shall present evidence in support of the claim that he or she is mentally retarded. The prosecution shall present its case regarding the issue of whether the defendant is mentally retarded. Each party may offer rebuttal evidence. The court, for good cause in furtherance of justice, may permit either party to reopen its case to present evidence in support of or opposition to the claim of retardation. Nothing in this section shall prohibit the court from making orders reasonably necessary to ensure the production of evidence sufficient to determine whether or not the defendant is mentally retarded, including, but not limited to, the appointment of, and examination of the defendant by, qualified experts. No statement made by the defendant during an examination ordered by the court shall be admissible in the trial on the defendant's guilt. "(3) At the close of evidence, the prosecution shall make its final argument, and the defendant shall conclude with his or her final argument. The burden of proof shall be

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cases pending in the trial court at the time of its enactment. (Centeno v. Superior Court (2004) 117 Cal.App.4th 30, 38, fn. 1; see, e.g., In re Holladay (11th Cir. 2003) 331 F.3d

on the defense to prove by a preponderance of the evidence that the defendant is mentally retarded. The jury shall return a verdict that either the defendant is mentally retarded or the defendant is not mentally retarded. The verdict of the jury shall be unanimous. In any case in which the jury has been unable to reach a unanimous verdict that the defendant is mentally retarded, and does not reach a unanimous verdict that the defendant is not mentally retarded, the court shall dismiss the jury and order a new jury impaneled to try the issue of mental retardation. The issue of guilt shall not be tried by the new jury. "(c) In the event the hearing is conducted before the court prior to the commencement of the trial, the following shall apply: "(1) If the court finds that the defendant is mentally retarded, the court shall preclude the death penalty and the criminal trial thereafter shall proceed as in any other case in which a sentence of death is not sought by the prosecution. If the defendant is found guilty of murder in the first degree, with a finding that one or more of the special circumstances enumerated in Section 190.2 are true, the court shall sentence the defendant to confinement in the state prison for life without the possibility of parole. The jury shall not be informed of the prior proceedings or the findings concerning the defendant's claim of mental retardation. "(2) If the court finds that the defendant is not mentally retarded, the trial court shall proceed as in any other case in which a sentence of death is sought by the prosecution. The jury shall not be informed of the prior proceedings or the findings concerning the defendant's claim of mental retardation. "(d) In the event the hearing is conducted before the jury after the defendant is found guilty with a finding that one or more of the special circumstances enumerated in Section 190.2 are true, the following shall apply: "(1) If the jury finds that the defendant is mentally retarded, the court shall preclude the death penalty and shall sentence the defendant to confinement in the state prison for life without the possibility of parole. "(2) If the jury finds that the defendant is not mentally retarded, the trial shall proceed as in any other case in which a sentence of death is sought by the prosecution. "(e) In any case in which the defendant has not requested a court hearing as provided in subdivision (b), and has entered a plea of not guilty by reason of insanity under Sections 190.4 and 1026, the hearing on mental retardation shall occur at the conclusion of the sanity trial if the defendant is found sane."

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1169, 1172 [applying Atkins retroactively]; Bell v. Cockrell (5th Cir. 2002) 310 F.3d 330, 332 [same].) PROCEDURAL HISTORY2 [] On January 24, 2001, Eric Jones was shot and killed outside Delano, California, in rural Tulare County. On January 27, 2001, [real party in interest] Jorge Vidal, Jr. [Vidal] and two others were arrested for his murder. Four additional suspects remained at large. A preliminary hearing was held October 4-5, 2001 and October 11, 2001. At its conclusion, Vidal was held to answer on all charges. On October 24, 2001, the district attorney filed an information charging Vidal and others with capital murder.[3] At his November 2, 2001, arraignment in Superior Court, Vidal entered pleas of not guilty to all

As we are unable to construct a complete procedural history from the exhibits furnished by the parties, we adopt a portion of the "RESPONSE TO PETITION FOR WRIT OF PROHIBITION AND/OR MANDATE AND REQUEST FOR STAY," filed June 14, 2004, with appropriate deletions and additions. Empty brackets [ ] indicate deletions; brackets with material enclosed indicate our insertions or additions, unless otherwise specified. (See Municipal Court v. Superior Court (Gonzalez) (1993) 5 Cal.4th 1126, 1128-1129 & fn. 1.) Footnotes in the source material have been renumbered sequentially and unnecessary capitalization has been omitted. Vidal seeks sanctions for the People's failure to summarize relevant testimony (as opposed to Vidal's confession), in violation of California Rules of Court, rule 14. The request is denied. [As nearly as we can ascertain, Vidal was charged with murder (

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