Nguyen v. Garcia

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HUU THANH NGUYEN, 

Petitioner-Appellant,

v. No. 05-56596

SILVIA GARCIA, Warden; EDWARD  D.C. No.

CV-03-01385-JVS

S. ALAMEIDA, JR., Director,

Director of Corrections, California OPINION

State Department of Corrections,

Respondents-Appellees.



Appeal from the United States District Court

for the Central District of California

James V. Selna, District Judge, Presiding

Argued and Submitted

October 24, 2006—Pasadena, California

Filed February 9, 2007

Before: Eugene E. Siler, Jr.,* A. Wallace Tashima, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge Bea

*The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge

for the Sixth Circuit, sitting by designation.

1647

1650 NGUYEN v. GARCIA

COUNSEL

Allen Bloom, San Diego, California, for the petitioner-

appellant.

Bill Lockyer, Attorney General of the State of California,

Robert R. Anderson, Chief Assistant Attorney General, Gary

W. Schons, Senior Assistant Attorney General, Kevin Vienna,

Deputy Attorney General, Lise Jacobsen, Deputy Attorney

General, Quisteen S. Shum, Deputy Attorney General, San

Diego, California, for the respondents-appellees.

OPINION

BEA, Circuit Judge:

In Wainwright v. Greenfield, 474 U.S. 284, 295 (1986), the

Supreme Court held that prosecution evidence the defendant

maintained silence after his arrest, offered to show he wasn’t

all that crazy, and to rebut defendant’s insanity defense in the

guilt phase of trial, constituted a violation of due process.

Here, we consider whether Wainwright, or other applicable

federal law, prohibits the prosecutor’s mention that defendant

requested counsel to show he was able to cooperate in his

NGUYEN v. GARCIA 1651

own defense—not at the guilt phase of trial but during a hear-

ing to determine whether the defendant was mentally compe-

tent to stand trial. We conclude that the state court decision

finding Wainwright inapplicable to a state court competency

hearing is not “contrary to” clearly established federal law

and therefore affirm the denial of appellant’s petition for writ

of habeas corpus brought pursuant to 28 U.S.C. § 2254.

I.

In the early morning of November 15, 1997, a fight broke

out at a billiard hall in Stanton, California. The fight contin-

ued in the parking lot of the billiard hall and shots were fired.

Two of the shots fired struck the outer wall of the billiard hall

and one shot pierced the front window and struck an interior

wall. No one was killed or hit, but probably not for lack of

trying. The owner of the billiard hall saw someone firing a

weapon out of the passenger window of a Nissan Maxima.

After hearing the shots, Deputy Albert Macias observed a

beige Nissan Maxima automobile speed away from the bil-

liard hall parking lot. A brief pursuit ended when the Maxima

spun out of control. Appellant Huu Thanh Nguyen

(“Nguyen”) was the sole occupant of the vehicle.

Deputy Macias ordered Nguyen out of the car and then

handcuffed Nguyen and placed him in the back of the patrol

car. Macias read Nguyen his Miranda rights after arresting

him, and Nguyen responded that he understood each of his

rights. Nguyen then stated he wanted to tell Macias what had

happened. Nguyen told Macias that a friend had fired the

shots. Nguyen stated he drove off to allow his friend to

escape, and that Nguyen had tossed the gun out of his window

because it was not his. After telling Deputy Macias these

details, Nguyen stated he wanted to talk with a lawyer.

Macias stopped his interrogation.

The gun used to fire the shots was found 30 to 50 feet from

where the Maxima came to rest. Gunshot residue was found

1652 NGUYEN v. GARCIA

on Nguyen’s left hand, on the interior and exterior of the pas-

senger door, and on the windshield.

In January 1998, Nguyen was charged with attempted first

degree murder, Cal. Penal Code §§ 187(a), 664, assault with

the personal use of a firearm, id. § 245(a)(2), shooting at an

occupied building, id. § 246, and being a felon in possession

of a firearm, id. § 12021(a)(1).1 He was charged to have com-

mitted the attempted murder willfully, deliberately, and with

premeditation. Before the jury trial, the proceedings in the

criminal prosecution were suspended pursuant to California

Penal Code §§ 1367-69 for a hearing to determine whether

Nguyen was competent to stand trial.2

The competency hearing was held in March 1999 before a

jury impaneled solely to decide whether Nguyen was compe-

tent to stand trial on the charges lodged against him.3 At this

1

Nguyen stood twice convicted, once in 1992 and once in 1993, of fel-

ony burglary offenses. Cal. Penal Code §§ 459-60.

2

Under California law,

[a] person cannot be tried or adjudged to punishment while that

person is mentally incompetent. A defendant is mentally incom-

petent for purposes of this chapter if, as a result of mental disor-

der or developmental disability, the defendant is unable to

understand the nature of the criminal proceedings or to assist

counsel in the conduct of a defense in a rational manner.

Cal. Penal Code § 1367(a).

3

In California, competency hearings are distinct from the criminal pros-

ecution: “when an order for a hearing into the present mental competence

of the defendant has been issued, all proceedings in the criminal prosecu-

tion shall be suspended until the question of the present mental compe-

tence of the defendant has been determined.” Cal. Penal Code § 1368(c).

If a jury has been impaneled to decide the guilt of the defendant, the jury

is “retained on call” pending resolution of the defendant’s competency

unless such retention would cause “undue hardship.” Id. A separate jury

may be impaneled to determine the sole issue of the defendant’s compe-

tency. See id.§§ 1368(c), 1369(e), (f); People v. Turner, 34 Cal. 4th 406,

424 (2004). Defendant has the burden of proving by a preponderance of

the evidence that he is mentally incompetent. Id. § 1369(f).

Here, of course, the competency hearing preceded the guilt phase trial;

the composition of the competency jury was totally different from that of

the eventual guilt phase jury.

NGUYEN v. GARCIA 1653

competency hearing, Dr. Paul Blair testified for the defense.

He testified that he had evaluated Nguyen twice, once in Sep-

tember 1992 (at the request of a public defender who was

defending Nguyen for the 1992 burglary charge) and again in

January 1999. Dr. Blair opined that Nguyen “is not competent

to participate in his own defense at this point in time, nor is

he competent to discuss with you in a legitimate, forthright

manner . . . .” During cross examination of Dr. Blair, the pros-

ecutor mentioned Nguyen’s request for an attorney on the

night of the billiard hall shooting:

Q: Let me ask you this, Dr. Blair. If Mr. Nguyen on

the day of his arrest in November of 1997 gave a

police officer a rational, apparently cogent statement,

even—even a defense to what he was suspected of

doing, saying he may not have been involved, telling

him that he didn’t want to speak to him any longer,

wanted a lawyer, would that mean that he’s compe-

tent to stand trial today?4

A: No.

(emphasis added).

The prosecution’s psychiatric expert, Dr. Kaushal Sharma,

testified about his interview with Nguyen. Sharma explained

that Nguyen described in detail the charges against him and

explained his defenses. Nguyen’s request for an attorney on

the night of the shooting was not mentioned during Sharma’s

testimony. But Sharma testified that Nguyen’s statement that

he understood his Miranda rights demonstrated “mental intact

functioning.”

Deputy Macias, the arresting officer, testified as to the

arrest, his recitation of the Miranda rights, and Nguyen’s

4

There was neither an objection to this question nor a motion to strike

the answer.

1654 NGUYEN v. GARCIA

acknowledgment of the rights (including his request for an

attorney) and explanation of the events of the crime. Finally,

during closing arguments of the competency hearing, the

prosecution mentioned Nguyen’s acknowledgment of his

Miranda rights as evidence of his competency:

When [Macias] says, “You have the right to an

attorney. Do you understand that? One will be

appointed to you free of charge before speaking to

me.” “Yes,” he understands that.

That tends to show circumstantially that he’s

aware of at least the element that he’s involved in a

criminal court proceeding. He’s aware of going to

court, things that he says to the deputy could be used

against him, he has a right to a lawyer free of charge

before talking to the sheriff’s deputy. So circumstan-

tially, that tends to show to a reasonable person he’s

aware of things.

SER 435-36. Following closing arguments, the jury empan-

eled only for the competency hearing found Nguyen mentally

competent to stand trial.

On November 16, 1999, a jury composed totally of persons

who had not served on the jury which determined competency

convicted Nguyen of the charged offenses and found true the

allegations that Nguyen had acted willfully, deliberately, and

with premeditation and that he personally used the firearm in

committing the attempted murder. Nguyen makes no assertion

that his invocation of his right to counsel was at all mentioned

during the criminal phase of trial. On January 21, 2000,

Nguyen was sentenced to state prison for 25 years to life pur-

suant to California’s Three Strikes Law.

Nguyen appealed the judgment, asserting, inter alia, that

his due process rights were violated when his request to talk

to an attorney was used against him during the competency

NGUYEN v. GARCIA 1655

hearing. Nguyen relied on Wainwright v. Greenfield, 474 U.S.

284 (1986) as support for this contention. On direct appeal,

the California Court of Appeal rejected Nguyen’s application

of Wainwright on the ground that evidence of a defendant’s

invocation of Miranda rights as an indicum of competency

during a competency hearing is distinguishable from the use

of post-Miranda silence to overcome a plea of insanity during

the criminal phase of trial. Specifically, the court stated that

whereas the criminal phase of trial involves a penalty—a

potential guilty verdict—a “mental competency hearing does

not involve any penalty . . . .” Therefore, “what applies to a

criminal case does not necessarily apply to a competency pro-

ceeding.” On these grounds, the state appellate court held that

it was not a violation of due process to use Nguyen’s invoca-

tion of his right to counsel as evidence during the competency

hearing. Without comment, the California Supreme Court

denied Nguyen’s petition for review.5

Nguyen then filed a petition for writ of habeas corpus with

the United States District Court for the Central District of Cal-

ifornia. Nguyen raised only one claim in his petition:

“[Nguyen’s] constitutional right to due process was violated

when his post-Miranda warning invocation of his right to

counsel was admitted, over defense objections,6 as evidence

5

California law does not allow the separate appeal of a competency

determination: “A determination of mental competency is a nonappealable

interlocutory ruling and may be reviewed only on an appeal from a final

judgment in the underlying criminal proceeding.” 5 Witkin, California

Criminal Law, Criminal Trial § 716 (3d ed.); see also People v. Mickle,

54 Cal. 3d 140, 180 (1991) (“We conclude that the verdict finding defen-

dant competent is a nonappealable, interlocutory ruling. It may be

reviewed on appeal only from a final judgment in the underlying criminal

proceeding.”).

6

The record does not contain any defense objection, much less “objec-

tions,” to the question in answer to which Deputy Macias stated Nguyen

requested an attorney. See supra page 1653-54. However, in view of the

basis of our decision, the case does not turn on whether a claimed eviden-

tiary error was properly preserved below or whether any error meets the

standard for plain error.

1656 NGUYEN v. GARCIA

of his mental competency at a hearing under California Penal

Code section 1368.”

The district court adopted its magistrate’s Report, denied

Nguyen’s habeas petition, and dismissed Nguyen’s habeas

petition with prejudice. The district court held the California

Court of Appeal’s decision was not an objectively unreason-

able application of either Wainwright, 474 U.S. 284, or Doyle

v. Ohio, 426 U.S. 610 (1976) (holding that it is a violation of

due process to use a defendant’s invocation of his right to

remain silent to impeach defendant’s testimony at trial, where

such claim of right to remain silent follows a Miranda warn-

ing).

Here, a certificate of appealability was granted on one

issue: “[w]hether the state court’s decision—that Petitioner

had suffered no violation of his Miranda rights when his invo-

cation of his right to counsel was brought out at his compe-

tency hearing—was contrary to, or an unreasonable

application of, clearly established federal law as determined

by the Supreme Court . . . .”7 Accordingly, Nguyen appeals

the district court’s denial of his federal habeas petition and

claims the state court’s decision holding Wainwright is inap-

plicable to competency hearings is contrary to federal law.

The holding in Wainwright, Nguyen posits, extended Doyle

from silence to the request for an attorney and is not limited

to issues of guilt or non-guilt.

II.

A.

The district court’s decision to deny Nguyen’s petition for

writ of habeas corpus is reviewed de novo, and its factual

7

We note that Nguyen’s Notice of Appeal was timely under Fed. R.

App. P. 4(a)(6) because Nguyen received no notice of the entry of Judg-

ment.

NGUYEN v. GARCIA 1657

findings are reviewed for clear error. Rios v. Garcia, 390 F.3d

1082, 1084 (9th Cir. 2004).

The Antiterrorism and Effective Death Penalty Act of

1996, Pub. L. No. 104-132, 110 Stat. 1214, (“AEDPA”)

applies to this case because Nguyen’s petition for writ of

habeas corpus was filed after April 24, 1996. Under AEDPA,

habeas relief is proper only if the state court’s adjudication of

the merits of a habeas claim “resulted in a decision that was

contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme

Court of the United States.” 28 U.S.C. § 2254(d)(1).8 We will

“defer to the state court’s determination of the federal issues

unless that determination is ‘contrary to, or involved an unrea-

sonable application of, clearly established Federal law.’ ”

Himes v. Thompson, 336 F.3d 848, 852 (9th Cir. 2003) (quot-

ing Lockyer v. Andrade, 538 U.S. 63, 71 (2003)). The relevant

state court decision here is the decision of the California

Court of Appeal, as that is the last reasoned state decision. See

Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). Only United

States Supreme Court holdings, but not dicta, constitute

“clearly established federal law” for purposes of the AEDPA

deference standard. See Williams v. Taylor, 529 U.S. 362, 412

8

AEDPA provides in pertinent part:

(d) An application for a writ of habeas corpus on behalf of a per-

son in custody pursuant to the judgment of a State court shall not

be granted with respect to any claim that was adjudicated on the

merits in State court proceedings unless the adjudication of the

claim —

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on unreasonable

determination of the facts in light of the evidence presented in the

State court proceeding.

28 U.S.C. § 2254(d).

1658 NGUYEN v. GARCIA

(2000); Lambert v. Blodgett, 393 F.3d 943, 974 (9th Cir.

2004) (quoting Lockyer, 538 U.S. at 71-72).

B.

[1] Because resolution of this case turns on whether the

state court’s decision is contrary to the holdings in Wain-

wright, 474 U.S. 284, and Doyle, 426 U.S. 610, we begin by

examining these holdings.9 First, in Doyle, defendants charged

with selling marijuana testified at trial that they had not sold

marijuana but been set up by law enforcement in an effort to

buy marijuana. Id. at 612-13. To impeach the veracity of the

defendants’ exculpatory story, the prosecutor on cross-

examination questioned each defendant why they had not told

this story at the time of their arrest. Id. at 613-14. On these

facts, the Supreme Court considered whether the prosecutor’s

use of post-Miranda silence to impeach a defendant’s excul-

patory testimony given at trial violates due process. The Court

held that it did and thereby proscribed the use of an arrestee’s

post-Miranda silence to impeach trial testimony: “while it is

9

The “contrary to” clause is the correct clause for analysis in this case.

We have explained that a state court decision is contrary to federal law if

the court either “ ‘applies a rule that contradicts the governing law set

forth’ by the Supreme Court or arrives at a different result in a case, that

is ‘materially indistinguishable from a [Supreme Court] decision.’ ” Luna

v. Cambra, 306 F.3d 954, 960 (alteration in the original) (quoting Penry

v. Johnson, 532 U.S. 782, 792 (2001), as amended 311 F.3d 928 (9th Cir.

2002). The state court did not apply the holdings of Wainwright and Doyle

to the facts of Nguyen’s case; rather, it distinguished Wainwright and

Doyle on the basis that errors in those cases occurred during the guilt

phase of a trial, not during a hearing to determine competency to stand

trial. The state court thus found Wainwright and Doyle inapplicable to a

competency hearing. Whether Nguyen is entitled to habeas relief depends

on whether this decision is contrary to federal law. That the district court

applied the “unreasonable application” clause in its analysis is immaterial

to our analysis. Our review of the district court’s decision is de novo, and

we may “affirm on any ground supported by the record, even if it differs

from the rationale of the district court.” Pollard v. White, 119 F.3d 1430,

1433 (9th Cir. 1997).

NGUYEN v. GARCIA 1659

true that the Miranda warnings contain no express assurance

that silence will carry no penalty, such assurance is implicit

to any person who receives the warnings.” Doyle, 426 U.S. at

618; see also United States v. Hale, 422 U.S. 171, 182-83

(1975) (White, J., concurring). Hence, “it would be funda-

mentally unfair and a deprivation of due process to allow the

arrested persons’s silence to be used to impeach an explana-

tion subsequently offered at trial.” Doyle, 426 U.S. at 619.

[2] Wainwright presented the Court with a variation on the

theme of Doyle. The question in Wainwright was whether

post-Miranda silence could be used as evidence to prove a

defendant’s sanity, following a defendant’s plea of insanity,

during the criminal phase of trial. 474 U.S. at 285. Pursuant

to the state law applicable in Wainwright, “when a defendant

pleads not guilty by reason of insanity and when his evidence

is sufficient to raise a reasonable doubt about his sanity, the

State has the burden of proving sanity beyond a reasonable

doubt.” Id. at 286. If the State were unable to meet this bur-

den, the defendant would be entitled to an acquittal. Id. at 286

n.1 (citing cases). The Court found Doyle analogous:

The point of the Doyle holding is that it is fundamen-

tally unfair to promise an arrested person that his

silence will not be used against him and thereafter to

breach that promise by using the silence to impeach

his trial testimony. It is equally unfair to breach that

promise by using silence to overcome a defendant’s

plea of insanity. In both situations, the State gives

warnings to protect constitutional rights and implic-

itly promises that any exercise of those rights will

not be penalized. In both situations, the State then

seeks to make use of the defendant’s exercise of

those rights in obtaining his conviction. The implicit

promise, the breach, and the consequent penalty are

identical in both situations.

Id. at 284-85 (emphasis added). The Court ruled the use of

post-Miranda silence to disprove insanity unfairly penalized

1660 NGUYEN v. GARCIA

the defendant in contravention of the Due Process Clause of

the Fourteenth Amendment. Id. at 293-95.

[3] In sum, the due process violations found in these deci-

sions are a result of the fundamental unfairness of the prose-

cution’s use of post-Miranda silence to infer the defendant’s

guilt and thereby aid in persuading a jury to convict. Such use

amounts to “penalizing” the defendant for invocation of their

rights. Compare Doyle, 426 U.S. at 617-18, with Wainwright,

474 U.S. at 295. After all, that the defendant will not be

penalized is implicit in the opening line of the Miranda warn-

ings: “You have the right to remain silent . . . .” See Miranda

v. Arizona, 384 U.S. 436, 444 (1966). It would not be much

of a “right” if its use penalizes the user.

C.

We now consider whether reference to a defendant’s post-

Miranda invocation of his right to counsel during a pretrial

competency hearing causes the same penalty at issue in Wain-

wright and Doyle. A review of the nature of competency hear-

ings demonstrates that the penalty contemplated in

Wainwright and Doyle simply does not occur in the context

of competency hearings.

1.

[4] It has long been a principle of our law that one who

becomes “mad” after committing an offense should not be

tried for the offense “for how can he make his defense?” Wil-

liam Blackstone, 4 Commentaries 24; see also Drope v. Mis-

souri, 420 U.S. 162, 171 (1975) (“It has long been accepted

that a person whose mental condition is such that he lacks the

capacity to understand the nature and object of the proceed-

ings against him, to consult with counsel, and to assist in pre-

paring his defense may not be subjected to a trial.”). The

Supreme Court has held that failure “to protect a defendant’s

right not to be tried or convicted while incompetent to stand

NGUYEN v. GARCIA 1661

trial deprives him of his due process right to a fair trial.” Id.

at 172 (citing Pate v. Robinson, 383 U.S. 375, 385 (1966)).

[5] To protect against the improper trial of mentally incom-

petent defendants, California has established a competency

hearing procedure to determine a defendant’s competency

prior to a criminal trial. See Cal. Penal Code §§ 1367-69. The

goal of the competency hearing is not to examine the defen-

dant’s sanity at the time of the commission of the offense (the

issue in Wainwright); rather, the goal is to determine whether

“the defendant is unable to understand the nature of the crimi-

nal proceedings or to assist counsel in the conduct of a

defense in a rational manner.” Id. § 1367(a); see also Godinez

v. Moran, 509 U.S. 389, 401 n.12 (1993) (“The focus of a

competency hearing is the defendant’s mental capacity; the

question is whether he has the ability to understand the pro-

ceedings.”); People v. Masterson, 8 Cal. 4th 965, 971 (1994)

(“The sole purpose of a competency proceeding is to deter-

mine the defendant’s present mental competence, i.e., whether

the defendant is able to understand the nature of the criminal

proceedings and to assist counsel in a rational manner.”

(emphasis added)). California law “presume[s] that the defen-

dant is mentally competent unless it is proved by a preponder-

ance of the evidence that the defendant is mentally

incompetent.” Cal. Penal Code § 1369(f). The California

Supreme Court explained that “[a]lthough it arises in the con-

text of a criminal trial, a competency hearing is a special pro-

ceeding, governed generally by the rules applicable to civil

proceedings.” People v. Lawley, 27 Cal. 4th 102, 131 (2002).

[6] The effect of being found competent in no way affects

the determination of the defendant’s guilt; it merely removes

a procedural barrier to the commencement of trial. See Jack-

son v. Indiana, 406 U.S. 715, 739 (1972) (“[C]riminal respon-

sibility at the time of the alleged offenses, however, is a

distinct issue from [one’s] competency to stand trial.”).

Indeed, the Supreme Court has carefully distinguished a pre-

trial competency determination from a guilt/innocence deter-

1662 NGUYEN v. GARCIA

mination: “In a competency hearing, the ‘emphasis is on [the

defendant’s] capacity to consult with counsel and to compre-

hend the proceedings, and . . . this is by no means the same

test as those which determine criminal responsibility at the

time of the crime.’ ” Medina v. California, 505 U.S. 437, 448

(1992), (alteration and omission in the original) (quoting Pate

v. Robinson, 383 U.S. 375, 388-89 (1966) (Harlan, J., dissent-

ing)). Regarding California’s competency procedure, Califor-

nia state courts have explained:

The purpose of [a competency hearing] is not to

determine guilt or innocence. It has no relation to the

plea of not guilty by reason of insanity. Rather, the

sole purpose of [the competency hearing] is the

humanitarian desire to assure that one who is men-

tally unable to defend himself not be tried upon a

criminal charge.

Tarantino v. Superior Court, 48 Cal. App. 3d 465, 469

(1975). The effect of being found incompetent is the “suspen-

sion of the criminal trial until such time, if any, that the defen-

dant regains the capacity to participate in his defense and

understand the proceedings against him.” Medina, 505 U.S. at

448; see also Dusky v. United States, 362 U.S. 402, 402-03

(1960) (per curiam). The effect of being found competent is

the continuation of criminal proceedings to the guilt phase of

trial.10

10

We acknowledge that using a defendant’s post-Miranda invocation of

the right to counsel to establish competency to stand trial may help to

remove a procedural barrier to trial and eliminates the tactical advantage

of indefinite pretrial delay, during which time witnesses die and evidence

deteriorates. The removal of a procedural barrier to trial and the loss of a

tactical advantage, however, do not raise the same constitutional concern

at issue in Wainwright. One has a constitutional right not to have one’s

silence be used to prove guilt. No one has a constitutional right to stall

trial until evidence is lost and witnesses expire.

Likewise, the use of a defendant’s invocation of Miranda rights at a

suppression or evidentiary hearing does not raise the same constitutional

NGUYEN v. GARCIA 1663

2.

[7] Not only are competency hearings entirely distinct in

purpose from the guilt phase of trial, but competency hearings

do not invoke the same concerns of self-incrimination—the

right Miranda is designed to protect—that are relevant during

the guilt and penalty phases of trial. The Fifth Amendment

privilege against self-incrimination exists to prohibit the gov-

ernment from forcing the defendant to talk and then using the

defendant’s own statements to satisfy its burden of establish-

ing guilt. See Oregon v. Elstad, 470 U.S. 298, 304-05 (1985)

(explaining that use of voluntary statements does not violate

the Fifth Amendment); Estelle v. Smith, 451 U.S. 454, 462

(1981). These concerns have no place at a competency hear-

ing.

[8] In California, the court may order a competency hearing

and compel a defendant to submit to psychiatric evaluation as

part of the competency determination. Cal. Penal Code

§ 1369. Accordingly, California state courts have expressly

held there is no Fifth Amendment right against self incrimina-

tion during competency hearing proceedings so long as state-

ments made during a competency hearing are immune from

later use by the prosecution to establish guilt. Tarantino, 48

Cal. App. 3d at 469-70. Immunity for competency hearing

statements “is necessary to ensure that an accused is not con-

victed by use of his own statements made at a court-

concern at issue in Wainwright. Thus, use of evidence procured in viola-

tion of Miranda warnings has never been barred in such non-jury, non-

guilt phase proceedings. For example, in United States v. Lemon, 550 F.2d

467, 473 (9th Cir. 1977), we held that although “[s]tatements taken in vio-

lation of Miranda may not be used to prove the prosecution’s case at trial,”

such statements “elicited prior to the giving of Miranda warnings may be

used during a motion to suppress to show defendant’s consent to a

search.” We relied on Lemon in United States v. Patterson, 812 F.2d 1188,

1193 (9th Cir. 1987), cert. denied, 485 U.S. 922 (1988), where we held

that statements taken in violation of Miranda may be used in an affidavit

to establish probable cause for a search warrant.

1664 NGUYEN v. GARCIA

compelled examination. . . . Hence, the rule protects both an

accused’s privilege against self-incrimination and the public

policy of not trying persons who are mentally incompetent.”

People v. Arcega, 32 Cal. 3d 504, 522 (1982).

This judicially-created immunity is buttressed by the

Supreme Court’s holding in Estelle, 451 U.S. 454. There, in

holding that the Fifth Amendment privilege against self-

incrimination extends to psychiatric examinations that are

later used in the penalty phase of trial,11 the Court declared

that “[t]he essence” of the Fifth Amendment privilege against

self-incrimination “is ‘the requirement that the State which

proposes to convict and punish an individual produce the evi-

dence against him by the independent labor of its officers, not

by the simple, cruel expedient of forcing it from his own

lips.’ ” Id. at 462 (emphasis omitted) (quoting Culombe v.

Connecticut, 367 U.S. 568, 581-82 (1961)). Since neither con-

viction nor punishment are the result of a competency hear-

ing, the rationale underlying Estelle’s holding simply does not

extend to statements used solely at such a hearing.12

[9] Unlike guilt or punishment, incompetency can rarely be

determined without the participation of the person claimed to

be incompetent. Furthermore, because under California law

the defendant bears the burden to establish incompetence by

a preponderance of the evidence, the use of a defendant’s own

statements during a competency hearing in no way affects the

government’s evidentiary burden. Cal. Penal Code § 1369(f).

11

In Estelle, a psychiatrist spoke with the defendant during competency

proceedings to determine whether he was competent to stand trial. Estelle,

451 U.S. at 456-57. Later, during the penalty phase of trial, the psychia-

trist testified against the defendant—on the basis of their discussions dur-

ing the competency hearing—to establish that the defendant posed great

risk to society. Id. at 459-60.

12

In dicta, the Court expressed as much in Estelle: “Indeed, if the appli-

cation of [the psychiatrist’s] findings had been confined to [a competency

hearing], no Fifth Amendment issue would have arisen.” Estelle, 451 U.S.

at 465.

NGUYEN v. GARCIA 1665

In short, a defendant seeking to establish incompetence can be

compelled to talk: a defendant may be required to be a wit-

ness to his own competency, if not his own crime.13

[10] Miranda exists to provide “procedural safeguards

effective to secure the privilege against self-incrimination.”

Miranda v. Arizona, 384 U.S. 436, 444 (1966). The privilege

against self-incrimination, in turn, exists to protect the defen-

dant from being forced to be a witness against himself.

Estelle, 451 U.S. at 462; see also United States v. Patane, 542

U.S. 630, 637 (2004) (noting “that the core protection

afforded by the Self-Incrimination Clause is a prohibition on

compelling a criminal defendant to testify against himself at

trial” in lieu of producing other evidence). We fail to see how

Wainwright and Doyle, which hold that a defendant shall not

be penalized for invoking Miranda rights, should apply to a

hearing at which the Fifth Amendment privilege against self-

incrimination is inapplicable. Here, reference to Nguyen’s

post-arrest invocation at the competency hearing was not used

to satisfy the prosecutorial burden of proof of guilt; it was

used, rather, to show cognition.

III.

[11] On these bases, we hold that the California Court of

Appeal’s decision not to apply Wainwright and Doyle to

13

This conclusion is in line with previous holdings regarding the right

against self-incrimination at analogous pretrial hearings. For example, in

United States v. Mitchell H., 182 F.3d 1034, 1035-36 (9th Cir. 1999), we

held that the privilege against self-incrimination does not apply to a juve-

nile transfer hearing because the hearing is not a criminal hearing, and

statements during the hearing, like statements made during a competency

hearing, cannot be used at a later criminal trial. We noted that “a juvenile

transfer hearing is a close cousin of a competency hearing” because both

hearings “ ‘deal with whether a defendant should be exempted from crimi-

nal prosecution because he falls within a category of persons who, in the

eyes of the law, are not viewed as fully responsible for their acts.’ ” Id.

at 1035 n.3 (quoting United States v. A.R., 38 F.3d 699, 703 (3d. Cir.

1994)).

1666 NGUYEN v. GARCIA

Nguyen’s competency hearing was not “contrary to” federal

law. The court correctly explained that “the nature of the pro-

ceeding in this case distinguishes it from Wainwright,” and

that “[a] mental competency hearing does not involve any

penalty . . . .”14 Absent a holding by the Supreme Court to

apply the principles of Wainwright and Doyle to competency

hearings, we are bound by the strictures of AEDPA to defer

to the state court’s determination. See Carey v. Musladin, 127

S. Ct. 649, 652-54 (2006).15

AFFIRMED

14

Having determined that the state court’s decision was not contrary to

established federal law, we need not address Nguyen’s contention that ref-

erence to his post-Miranda invocation of his right to counsel during the

competency hearing was not harmless error under Brecht v. Abrahamson,

507 U.S. 619 (1993).

15

We reject Nguyen’s contention that Medina v. California, 505 U.S.

437 (1992), extended Wainwright to competency hearings. In Medina, the

sole issue before the Court was whether the Due Process Clause permitted

California to place the burden of establishing incompetence on the defen-

dant. Id. at 439. The Court held that California’s competency determina-

tion framework did not violate due process. Id. at 448-53. Nothing in the

decision suggests the principles of Wainwright and Doyle should apply in

the context of competency hearings.