Opinion
A130498
09-28-2011
In re ANDRE M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ANDRE M., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County Super. Ct. No. J02-00126)
Andre M. (appellant) appeals after pleading no contest to misdemeanor vandalism and resisting a police officer in a juvenile wardship proceeding (Welf. & Inst. Code, § 602), and being placed on nonwardship probation. He contends the juvenile court's finding that he was competent to participate in the proceedings was not supported by substantial evidence. He further contends he received ineffective assistance of counsel in light of defense counsel's failure to either request a hearing on the issue of competency or assert that appellant was not competent. We shall affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL BACKGROUND
On August 24, 2010, an original juvenile wardship petition was filed, pursuant to section 602, subdivision (a), alleging that appellant had resisted an executive officer by force or violence (Pen. Code, § 69); exhibited a deadly weapon other than a firearm (Pen. Code, § 417, subd. (a)(1)); and committed vandalism with damage under $400 (Pen. Code, § 594, subd. (b)(2)(A)).
On September 17, 2010, defense counsel declared a doubt as to appellant's competency and the juvenile court suspended proceedings and ordered a psychological evaluation.
On October 19, 2010, the court found appellant competent. On that same date, appellant pleaded no contest to the misdemeanor vandalism count and to an added count that alleged misdemeanor resisting a peace officer (Pen. Code, § 148, subd. (a)(1)). The remaining allegations were dismissed.
On November 2, 2010, appellant was placed on six months' formal nonwardship probation.
On November 29, 2010, appellant filed a notice of appeal.
FACTUAL BACKGROUND
These facts are taken from the probation report.
On August 20, 2010, appellant, who was nearly 16 years old, was a resident of the Seneca Center. Appellant became agitated during breakfast when some of his peers called him names. He took a "time out" by leaving the building and walking around the facility for approximately 45 minutes. Seneca staff was nearby, talking with him and monitoring his actions. He then left the Seneca Center facility and went into the community, becoming agitated when staff continued to follow him. He began throwing rocks at staff to keep them from following him and then picked up a stick, walked back to the staff parking lot, and began hitting cars. He swore at staff, then left the facility again and began hitting an ATM machine with the stick.
When officers arrived and commanded appellant to drop the stick, appellant fought with them and urinated on himself; physical force was used to disarm him.
DISCUSSION
I. Juvenile Court Background
At a September 17, 2010 hearing, defense counsel expressed a doubt as to appellant's competency on the grounds of mental illness and/or developmental disability. The juvenile court suspended proceedings and ordered a psychological examination to determine appellant's competency.
The examining psychologist, Dr. J. Kyle Van Gaasbeek, submitted a report to the juvenile court on October 6, 2010. The report was based on a consultation with defense counsel on September 27, and an interview with and testing of appellant on September 30.
Dr. Van Gaasbeek reported that appellant had been a court dependent and had lived in foster and group homes since age five due to his mother's substance abuse. Appellant was presently placed at Seneca Center group home. Appellant had said that at age four, he fell and hit his head on concrete, was hospitalized for seven days, and was told he had suffered brain damage. He reported problems with his memory.
Appellant was in the 10th grade and was in special education full time. He had been suspended and expelled from school for behavior problems. He had been hospitalized as a danger to himself or others five to 10 times. He was on two medications to help him control his anger and he was a client of the Regional Center of the East Bay.
During the interview, appellant was cooperative and was able to maintain his focus throughout the evaluation. When he did not understand something, he would ask for clarification. His fund of knowledge was limited, but "when he was given an explanation about something he listened carefully and appeared to process it internally well enough to provide his own description of what was said to him."
When asked about psychotic symptoms, appellant said he occasionally sees visions of ghosts at night. He initially denied auditory hallucinations, but later acknowledged that he sometimes hears voices talking to him.
Intelligence testing indicated a verbal intelligence score of 61, which is "significantly below average"; a nonverbal intelligence score of 72, which is "borderline"; and a composite intelligence score of 60, which is "significantly below average." On word reading and sentence comprehension tests, appellant scored at the second grade level. All of these test scores were "consistent with the presence of his history of a developmental intellectual disability."
With respect to appellant's "competency abilities," appellant had said that, at a recent hearing, he had not understood most of the legal proceedings. "He said he wanted to learn about court and found a book in the Juvenile Hall's library called 'They Broke the Law' which has legal definitions. He had spent the two weeks prior to this evaluation reading this book." Appellant explained to Dr. Van Gaasbeek his understanding of the charges, penalties and pleas as follows: "[Appellant] said that he was being charged with vandalism and assaulting a police officer and that he was arrested on 8/20/10. He does not believe these are serious charges because 'I did that in the past and it's not.' [Appellant] went on to say he understands that assault can sometimes be considered a serious offense. He knows that assault is considered worse than vandalism and that shooting somebody is likewise worse than assault. He explained the purpose of a trial as 'they list the charges you have and read the case. If it is serious, they put you in juvenile hall or a different prison.' When I asked the difference between a court trial and if his school principal said he did something wrong, he said in court 'they tell you guilty or not guilty.' He knew these situations are similar in that he is expected to tell the truth. He explained that pleading 'guilty' means 'you actually did this. They have enough evidence.' He believes that if he pleads guilty he will have to stay in juvenile hall or could even be sentenced to CYA, but he could also be put on probation and sentenced to community service. A plea of 'not guilty' was defined as 'you didn't do it or they couldn't find enough evidence to put you guilty.' [Appellant] thinks that if he pleads not guilty that he may be released and can return to his group home."
In his report, Dr. Van Gaasbeek also related appellant's understanding of the trial participants' roles. For example, appellant initially reported that the prosecutor listens to the defendant and the police to determine who is lying. However, after Dr. Van Gaasbeek "attempted to educate him further about the role of the prosecutor," and later asked about the prosecutor again, appellant was able to state that the prosecutor " 'fights against the client' " and " 'tells the police side.' " Appellant was also able to identify his defense attorney and tell when they had met; he also "kn[ew] that his attorney would take his side in court and help him through the legal process." Finally, he understood that the judge listens to the evidence presented by both sides and then decides the case.
With respect to appellant's ability to assist counsel, when asked how he could help his attorney, appellant said, " 'be quiet and not pressure him. Answer him.' " When asked for an account of the alleged offense, appellant "was able to provide a fairly organized account of what happened that led to his arrest and subsequent hospitalization."
As to appellant's ability to make decisions, Dr. Van Gaasbeek reported that, "[a]t first, [appellant] did not know what is meant by a plea agreement. After I explained that it is a 'deal' and provided an example, [appellant] understood it as 'if you are guilty, there is less punishment. If you are not guilty—more punishment.' He saw turning down a plea bargain as taking a chance because 'you never know if you might get a chance to plead guilty because you get less punishment.' He indicated that he would take a plea deal no matter the odds of being found not guilty because he wanted to be given a chance to stay out of trouble."
Dr. Van Gaasbeek summarized his evaluation and offered recommendations, as follows: "With respect to his intellectual development, [appellant's] test scores are indicative of mental retardation. This is consistent with his history of being a client of the Regional Center. [Appellant] has a history of involuntary psychiatric hospitalizations for behavior problems and reports some psychotic symptoms including hallucinations.
"In conclusion, I believe [appellant] has a basic understanding of his current legal situation. He appears to have benefitted from his study of legal proceedings and [to] understand the roles of the participants involved in a trial. His understanding of a plea bargain is more limited rudimentary. If the court determines that [appellant] needs further education regarding this point, it is the responsibility of the Regional Center to provide competency training in the community because he is their client. [Appellant's] psychiatric symptoms appear to be well controlled currently and are not expected to interfere with his understanding of legal proceedings."
At an October 19, 2010 hearing, the juvenile court discussed the report and appellant's competency with counsel, as follows:
"THE COURT: . . . . [W]hat the conclusion is I read in the report—is that [appellant] is competent to both understand the nature of the charges and to assist counsel in the trial. [¶] Does either party disagree with my interpretation of Dr. Van Gaasbeek's report conclusion?
"[THE PROSECUTOR]: No.
"[DEFENSE COUNSEL]: No.
"THE COURT: With that, did you want to be heard on the issue of competency?
"[DEFENSE COUNSEL]: Your Honor, I'm prepared to submit it on Dr. Van Gaasbeek's report. [¶] . . . [¶]
"THE COURT: I have read and reviewed the report very carefully from Dr. Van Gaasbeek. I do find that [appellant] is competent both to understand the nature of the proceedings and to assist his counsel in representing him. And with that, the suspension of proceeding is lifted. Proceedings will continue."
Appellant then pleaded no contest to count three, misdemeanor vandalism, and the added count four, misdemeanor resisting a peace officer in the performance of his or her duties. The court then dismissed counts one and two and placed appellant on six months' nonwardship probation.
II. Juvenile Court's Competency Finding
Appellant contends the juvenile court's finding that he was competent to participate in the proceedings was not supported by substantial evidence.
"The criminal trial of an incompetent defendant violates the due process clause of the federal and state Constitutions. [Citations.] Similarly, a child subject to delinquency proceedings has a due process right to a competency hearing. [Citations.]." (In re Christopher F. (2011) 194 Cal.App.4th 462, 468 (Christopher F.).) A defendant is deemed mentally incompetent "if, as a result of mental disorder 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." (Pen. Code, § 1367, subd. (a); see also Pen. Code, § 1368; accord, Dusky v. United States (1960) 362 U.S. 402; Christopher F., at p. 468.)
With respect to minors, California Rules of Court, rule 5.645(d), provides: "If the court finds that there is reason to doubt that a child who is the subject of a petition filed under section 601 or 602 is capable of understanding the proceedings or of cooperating with the child's attorney, the court must stay the proceedings and conduct a hearing regarding the child's competence." Moreover, "although rule5.645(d) provides that the court 'may' appoint an expert to evaluate the child, where, as here, the child's counsel has expressed a doubt as to his client's competency, it would be an abuse of discretion for the court to refuse to appoint an expert. (See Pen. Code, § 1369, subd. (a).)" (Tyrone B. v. Superior Court (2008) 164 Cal.App.4th 227, 231.) If the defendant (or minor) presents substantial evidence of incompetence, "the court must stop the proceedings and order a hearing on the competence issue. [Citations.] In this context, substantial evidence means evidence that raises a reasonable doubt about the defendant's ability to stand trial. [Citation.]" (People v. Ramos (2004) 34 Cal.4th 494, 507; cf. § 709.)
All further rule references are to the California Rules of Court.
Section 709, which outlines the procedures related to competency determinations for minors alleged to come within the jurisdiction of the juvenile court for an offense described in section 601 or 602, took effect on January 1, 2011 and therefore does not cover the present proceedings. Subdivision (a) of section 709 provides: "During the pendency of any juvenile proceeding, the minor's counsel or the court may express a doubt as to the minor's competency. A minor is incompetent to proceed if he or she lacks sufficient present ability to consult with counsel and assist in preparing his or her defense with a reasonable degree of rational understanding, or lacks a rational as well as factual understanding, of the nature of the charges or proceedings against him or her. If the court finds substantial evidence raises a doubt as to the minor's competency, the proceedings shall be suspended."
We review the juvenile court's competency determination for substantial evidence. (Christopher F., supra, 194 Cal.App.4th at p. 471.)
In the present case, the juvenile court found that appellant was competent based on the report of Dr. Van Gaasbeek. As Dr. Van Gaasbeek's report reflects, appellant's initial understanding of the legal proceedings was deficient. Appellant, however, took it upon himself to educate himself regarding juvenile delinquency proceedings, which assisted appellant to understand the process. The report also shows that appellant was able to understand and assimilate the information Dr. Van Gaasbeek shared with him to fill in the remaining gaps in his basic understanding.
Appellant focuses on his understanding of the meaning of entering into a plea agreement and claims his lack of clarity about this point demonstrates his incompetence, noting that Dr. Van Gaasbeek described appellant's understanding of a plea bargain as "more limited rudimentary." However, as Dr. Van Gaasbeek reported, once he explained that a plea agreement is a "deal" and provided an example, appellant understood a plea agreement to mean that " 'if you are guilty, there is less punishment. If you are not guilty—more punishment.' . . . Appellant indicated that he would take a plea deal no matter the odds of being found not guilty because he wanted to be given a chance to stay out of trouble."
Appellant claims that his statements to Dr. Van Gaasbeek indicated that, due to his mental retardation, "he did not understand the most fundamental aspect of the court proceedings—whether to admit or deny the petition against him." Specifically, according to appellant, although he "did understand certain other aspects of the court proceedings, his lack of understanding regarding the effect of his pleas went to the very core of proceedings . . . ."
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Although appellant's description of a plea agreement is not particularly articulate (e.g., his use of the phrases "if you are guilty" and "if you are not guilty" rather than "if you plead guilty" and "if you plead not guilty"), the court could reasonably find that he had a basic understanding of the fact that, with a guilty plea, his punishment would likely be less than if he went to trial and was found guilty. Moreover, appellant's decision to accept a guilty plea, pursuant to which he would likely be placed on probation and returned to his group home, and not subject himself to the risk of a more severe outcome at a contested hearing, was not unreasonable.
In short, Dr. Van Gaasbeek's report showed that appellant was capable of being educated and that his limited cognitive abilities did not prevent his ability to understand the nature of the juvenile delinquency proceedings. (See Christopher F., supra, 194 Cal.App.4th at p. 468.) Accordingly, substantial evidence supports the juvenile court's determination that appellant was competent. (See id., at p. 471.)
III. Ineffective Assistance of Counsel
Appellant contends he received ineffective assistance of counsel in light of defense counsel's failure to either request a hearing on the issue of competency or assert that appellant was not competent.
To prove ineffective assistance of counsel, a defendant must show that "counsel's representation fell below an objective standard of reasonableness . . . under prevailing professional norms." (Strickland v. Washington (1984) 466 U.S. 668, 688.) In addition, the defendant must affirmatively establish prejudice by showing "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Id. at p. 694.) "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." (Id. at p. 697.)
Here, even assuming defense counsel's failure to request a hearing on the issue of competency or to assert that appellant was not competent constituted inadequate representation, appellant has not established that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington, supra, 466 U.S. at p. 694.)
Dr. Van Gaasbeek's report thoroughly discussed appellant's limitations and abilities and, as we have already concluded, provided substantial evidence of appellant's competency. (See pt. II, ante.) We will not speculate as to whether Dr. Van Gaasbeek's testimony at a hearing might possibly have provided new evidence of incompetence. (Cf. People v. Lawley (2002) 27 Cal.4th 102, 136 [given that record amply supported trial court's competency determination, Supreme Court could not "say a more favorable outcome was reasonably probable had counsel [, inter alia,] demanded a fuller evidentiary hearing"].) Thus, appellant has failed to demonstrate prejudice. (See Strickland v. Washington, supra, 466 U.S. at p. 697.)
DISPOSITION
The juvenile court's order is affirmed.
Kline, P.J. We concur: Haerle, J. Lambden, J.