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FACTUAL AND PROCEDURAL SUMMARY



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FACTUAL AND PROCEDURAL SUMMARY

Late in the afternoon on November 16, 2009, Oscar Calvillo Sr. (Oscar Sr.) was driving his red van on Figueroa near 52nd Street in Los Angeles, heading to pick up one of his sons. His oldest son, Oscar Calvillo Jr. (Oscar Jr.), was in the front passenger seat. His son Juan, his nephew, and a friend were in the back. The driver’s side window was down. As Oscar Sr. turned onto 52nd Street, he saw two individuals. As he continued forward, one of them crossed the street behind his van and yelled “Temple Street” at him.

Oscar Sr. knew Temple Street was a gang that had moved into the area. He had not had any trouble with that gang, and he decided to talk to these two men to let them know that “I pass by there every day, . . . so that they would know that I used to live there and that my family still lives there and I never had any trouble and I didn’t want any.” Oscar Sr. put his car in reverse and drove backwards, toward the men. In his rearview mirror, he saw one of the men, who was wearing a dark baseball cap, crouch down near a parked car. The man reached toward the tire, as if to get something. He then put his hand under his shirt, near his waistband. Oscar Sr. lost sight of the men, then heard several gunshots. Oscar Sr. was shot in the neck, Oscar Jr. was shot in the shoulder. Oscar Sr. lost control of his hands and feet, and was unable to drive. Oscar Jr. reached over to steer the car while Juan depressed the accelerator with his hand. The van drove down the street in this manner and crashed into a fence. Oscar Sr. was moved to the passenger seat and Oscar Jr. drove the van to his aunt’s house a few blocks away.

At the time of the shooting, two Los Angeles police officers were driving east on 52nd Street in a marked patrol car. They heard eight or nine gunshots, then saw Oscar Sr.’s red van driving westward, in their direction, and swerving erratically. The driver was slumped over and the front passenger was holding his neck. As the officers passed the van, they smelled fresh gunpowder. Occupants in the van pointed eastward, behind them. The officers saw an individual step out from behind a burgundy four-wheel-drive vehicle. His hand was on a gun which was partially concealed in his waistband. The man looked in the officers’ direction, then fled eastward. The officers followed in their patrol car until the man ran into a driveway. The officers followed on foot and found appellant hiding under a camper shell in the driveway. They recovered a nine-millimeter semiautomatic pistol on the ground, about five feet from the camper shell. All of the ammunition had been fired from it. Nine cartridge casings and a spent bullet were recovered from the crime scene. They were all fired from the semiautomatic pistol found near appellant. Appellant was interviewed by two police detectives. That interview was recorded.

Appellant was charged with multiple counts of attempted murder. At the outset of the proceedings in April 2010, the defense declared a doubt as to appellant’s mental competency and submitted a psychological evaluation by Robert J. Rome, Ph.D., a licensed psychologist. Dr. Rome reported appellant displayed low cognitive functioning, significantly below average communication, limited verbal expression with stuttering and stammering, and a moderate to severe hearing loss in his right ear. It was Dr. Rome’s opinion that appellant “does not appear capable of appropriately assisting his attorney in his own defense.”

The court suspended criminal proceedings pursuant to section 1368, and appointed Kaushal K. Sharma, M.D., to examine appellant. Dr. Sharma, a clinical professor of psychiatry at the USC Keck School of Medicine, concluded in his May 2010 report: “Notwithstanding the defendant’s claimed ‘symptom’ of hearing a man’s voice when he is angry and his slow responses, he is able to understand his legal predicament and can provide meaningful information to his attorney as he provided to this examiner. Thus, I believe he is competent to stand trial.” The court set the matter for a competency hearing.

In May 2011, the court received a report from forensic and general psychiatrist Kory J. Knapke, M.D. Dr. Knapke found appellant had difficulty focusing on the examination, appeared confused and lethargic during the interview, seemed to respond to internal stimuli on two occasions during the interview, had a very poor understanding of courtroom proceedings, and “is unable to rationally cooperate with his attorney or his court proceedings at this time.” It was his view that for appellant to receive a fair trial, he should be transferred to a state hospital in order to stabilize him and thoroughly evaluate him. He felt appellant could be restored to competency in a timely manner. Based on this report, the court found appellant was not mentally competent to stand trial and ordered him transferred to Patton State Hospital.

On July 26, 2011, two new competency reports were submitted to the court. One was prepared by Neena Sachinvala, M.D., a forensic psychiatrist and clinical professor at UCLA. She concluded appellant was not competent to stand trial. The second report was from Dr. Sharma, who previously had examined appellant in May 2010. It was his opinion that appellant “is competent to stand trial and is intentionally, willfully and consciously trying to present himself as incompetent.”

The competency hearing occurred over several days, beginning in late August 2011. Dr. Sachinvala and Dr. Rome testified for appellant. The court then received a second report from Dr. Knapke, who had conducted a new interview with appellant. It was his opinion that appellant “does understand the charges and proceedings against him, and he has the capacity to rationally cooperate with his attorney if he so chooses.” After considering the reports and testimony and making its own observations as to appellant’s behavior, the court found appellant competent to stand trial. Criminal proceedings were reinstated.

At trial, appellant’s defense was self defense. He testified that he shot at the van when it backed up toward him because he thought the occupants were rival gang members who were going to shoot him. The jury found appellant guilty on all charges, and found the firearm use and street gang allegations to be true. This is a timely appeal from the judgment of conviction.






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