Opinion
A151355
09-30-2019
THE PEOPLE, Plaintiff and Respondent, v. WALLACE BATISTE, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. 224334)
Defendant Wallace Batiste appeals a judgment convicting him of robbery and receiving stolen property and sentencing him to 61 years to life in prison. Prior to trial, defendant was found incompetent and ordered confined at a state hospital. After several months of treatment with antipsychotic medication, hospital physicians reported that defendant had regained trial competence. Approximately six months later, during the course of jury selection, defense counsel questioned defendant's competence based on evidence that he had stopped taking his medications upon his return to county jail and had decompensated to the point that he was no longer speaking to his attorney. A psychological evaluation prepared a month earlier in connection with a Faretta motion confirmed that many of defendant's symptoms, including agitation, unstable moods, grandiosity, disorganized thinking, and rambling speech had returned. The court was also advised that during the course of a prior criminal case, in which defendant also had been found incompetent and returned to competency with medication, the court had ordered defendant housed at the state hospital for trial when it became clear that his continued medication was necessary to maintain trial competency. After receiving from defendant responses to its questions that satisfied the court that defendant understood the proceedings, the court declined to suspend the trial and again initiate competency proceedings. While this appeal was pending, our Supreme Court decided People v. Rodas (2018) 6 Cal.5th 219, 223 (Rodas). The facts in Rodas are virtually indistinguishable from those in the present case; the Supreme Court decision compels our acceptance of defendant's contention that the trial court erred in proceeding with trial so that his conviction must be reversed.
Faretta v. California (1975) 422 U.S. 806.
This conclusion renders moot defendant's additional arguments on appeal that the trial court erroneously failed to give a proper mistake-of-fact instruction; that he cannot be convicted of stealing property and receiving that same property; that the court miscalculated his custody credits; and that the matter must be remanded so the trial court may consider striking the five-year recidivist enhancements. While it is also moot whether in the event of an affirmance of the conviction the matter should be remanded for determination of whether defendant qualifies for mental health diversion, the application of Penal Code section 1001.36 given the reversal of the conviction will be for consideration of the trial court on remand.
Background
Defendant was charged by information with, among other things, two counts of second degree robbery (Pen. Code, § 211) and one count of receiving stolen property (§ 496, subd. (a)). The information also alleged that the robbery offenses were committed while defendant was on parole (§ 1203.085, subds. (a), (b)) and that defendant had suffered three prior serious felony convictions (§ 667, subd. (a)(1)), served five prior prison terms (§ 667.5, subd. (b)), and had three prior serious felony convictions that qualified as strikes under the Three Strikes Law (§§ 667, subds. (d)-(e), 1170.12, subds. (b), (c)).
All statutory references are to the Penal Code unless otherwise noted.
Additional counts alleging assault with force likely to cause great bodily injury (§ 245, subd. (a)(4)), and dissuading, attempting to dissuade, and threatening a witness (§§ 136.1, 140, subd. (a)) were dismissed prior to and during trial.
Because we reverse the judgment based on the court's failure to suspend the trial and initiate competency proceedings, we need not provide a full recitation of the trial evidence. In summary, the evidence established that defendant assaulted and robbed one victim of a laptop computer. Minutes later, defendant grabbed a cardboard box from a stand at the farmers market and assaulted an employee who tried to retrieve the box from him. The jury convicted defendant of two counts of robbery and of misdemeanor receiving stolen property, and it found the prior conviction allegations true.
The court sentenced defendant to consecutive 25-year-to-life indeterminate terms on each of the two robbery counts plus two consecutive five-year terms on the prior serious felony allegations and one year on the prison prior allegation, for an aggregate sentence of 61 years to life. The court also imposed six months in county jail for the misdemeanor count and deemed the sentence served by presentence credits.
Defendant timely filed a notice of appeal.
Discussion
In Rodas, supra, 6 Cal.5th at pages 230-231, the Supreme Court explained the relevant law as follows: "The constitutional guarantee of due process forbids a court from trying or convicting a criminal defendant who is mentally incompetent to stand trial. [Citations.] Section 1367 of the Penal Code, incorporating the applicable constitutional standard, specifies that a person is incompetent to stand trial '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.' [Citations.] [¶] Penal Code section 1368 requires that criminal proceedings be suspended and competency proceedings be commenced if 'a doubt arises in the mind of the judge' regarding the defendant's competence [citation] and defense counsel concurs [citation]. This court has construed that provision, in conformity with the requirements of federal constitutional law, as meaning that an accused has the right 'to a hearing on present sanity if he comes forward with substantial evidence that he is incapable, because of mental illness, of understanding the nature of the proceedings against him or of assisting in his defense.' [Citations.] 'Once such substantial evidence appears, a doubt as to the sanity of the accused exists, no matter how persuasive other evidence—testimony of prosecution witnesses or the court's own observations of the accused—may be to the contrary.' [Citation.] As we have explained in more recent cases, substantial evidence for this purpose is evidence 'that raises a reasonable or bona fide doubt' as to competence, and the duty to conduct a competency hearing 'may arise at any time prior to judgment' [Citations.] [¶] When a doubt exists as to the defendant's mental competence, the court must appoint an expert or experts to examine the defendant. The issue is then tried to the court or a jury under the procedures set out in Penal Code section 1369. Except as provided in Penal Code section 1368.1 (allowing for probable cause and motion hearings in certain circumstances), all criminal proceedings are to be suspended until the competence question has been determined. [Citation.] [¶] If, after a competency hearing, the defendant is found competent to stand trial, a trial court may rely on that finding unless the court ' "is presented with a substantial change of circumstances or with new evidence" casting a serious doubt on the validity of that finding.' "
The court summarized its conclusions as follows: "As a general rule, once a defendant has been found competent to stand trial, a trial court may rely on that finding absent a substantial change of circumstances. But when a formerly incompetent defendant has been restored to competence solely or primarily through administration of medication, evidence that the defendant is no longer taking his medication and is again exhibiting signs of incompetence will generally establish such a change in circumstances and will call for additional formal investigation before trial may proceed. In the face of such evidence, a trial court's failure to suspend proceedings violates the constitutional guarantee of due process in criminal trials." (Rodas, supra, 6 Cal.5th at p. 223.)
In Rodas, defendant, who had a long history of mental illness, was found incompetent to stand trial and subsequently restored to competence with the assistance of medication. A medical report advised that he should remain on his medication regimen in order to maintain his competency. (Rodas, supra, 6 Cal.5th at pp. 225-226.) Prior to opening statements, defense counsel advised the court that she had developed a doubt about defendant's present competence, describing statements he made that did not make sense, and speech that she described as a " 'word salad.' " According to counsel, defendant was not taking his medication and she was having difficulty understanding him because she did not know "what he's saying" and "what he wants." (Id. at p. 227.) After engaging in a colloquy with defendant, the court advised defense counsel it was " 'impressed with [the] clarity of [defendant's] speech and apparent clarity of reasoning in addressing the court. He understands the charges. He says he's willing to help you.' " (Id. at p. 229.) The court asked defendant if he thought it was okay to proceed with the trial, and defendant responded affirmatively. After follow-up questions with defendant about his medication, the court proceeded with the trial. (Ibid.) On appeal, defendant argued that the trial court erred in failing to suspend the criminal proceedings after defense counsel expressed her doubts as to defendant's competence.
The Supreme Court agreed. (Rodas, supra, 6 Cal.5th at p. 232.) The court found that the information presented to the trial court that "defendant had stopped taking his antipsychotic medication—on which his prior competence finding was effectively conditioned—and was again displaying symptoms similar to those he exhibited during prior bouts of incompetence" was substantial evidence of changed circumstances that required additional, formal inquiry under section 1368. (Rodas, at p. 235.) The court acknowledged that "the duty to suspend is not triggered by information that substantially duplicates evidence already considered at an earlier, formal inquiry into the defendant's competence" (id. at p. 234) and that "when faced with evidence of relatively minor changes in the defendant's mental state, the court may rely on a prior competency finding rather than convening a new hearing to cover largely the same ground" (id. at pp. 234-235). However, "when substantial evidence of incompetence otherwise exists, a competency hearing is required even though the defendant may display 'mental alertness and understanding' in his colloquies with the trial judge. [Citation.] . . . [W]hile the defendant's in-court behavior 'might be relevant to the ultimate decision as to his sanity, it cannot be relied upon to dispense with a hearing on that very issue.' " (Id. at p. 234, quoting Pate v. Robinson (1966) 383 U.S. 375, 385-386.) As our Supreme Court has stated previously, on appeal "our inquiry is focused not on the subjective opinion of the trial judge, but rather on whether there was substantial evidence raising a reasonable doubt concerning the defendant's competence to stand trial." (People v. Mickel (2016) 2 Cal.5th 181, 195.)
The factual and procedural history in this case is nearly a carbon copy of that in Rodas:
On August 4, 2015, defendant's then-attorney first declared a doubt as to defendant's competency to stand trial. The court suspended proceedings and appointed Dr. Steven Barron to evaluate defendant's competence. On September 1, Barron reported that he could not provide a definitive conclusion regarding defendant's competence because defendant had declined to be interviewed. On September 23, the court found defendant mentally competent and reinstated criminal proceedings.
On March 1, 2016, defense counsel declared a doubt as to defendant's competence and the court again suspended the proceedings. The court appointed Dr. Amy Watt to evaluate defendant. On April 6, Watt opined that defendant was "incompetent to stand trial." Her report states that defendant "has a long history of serious mental illness. . . . He was previously diagnosed with bipolar disorder, antisocial personality disorder, psychotic disorder NOS, and paranoid personality disorder." His symptoms included agitation, disorganized thoughts, grandiosity, and use of "made-up words." The report continues, "In 1991, Mr. Batiste was found to be incompetent to stand trial. He was committed to treatment at Atascadero State Hospital for [a period] of time. In 2011, Mr. Batiste was charged with threatening to commit a crime, harassment, and [he] allegedly threatened the life of a nurse when he was in jail in Redwood City. He was subsequently declared incompetent to stand trial. Mr. Batiste was committed to treatment at Napa State Hospital from 2011 to 2013." According to Watt's report, defendant "responded well to medication treatment. By the time he was discharged from Napa State Hospital in April 2013, he was described as being stable and at baseline psychiatrically. He was compliant with medication and there were no behavior[al] issues. Mr. Batiste was subsequently found to be competent to stand trial." Based on Watt's evaluation, the court found that defendant was not competent to stand trial, ordered that proceedings remain suspended, and defendant was committed to Napa State Hospital for restoration of competency.
In July 2016, a psychologist from the state hospital issued a report indicating that defendant was "not yet competent" to stand trial. The psychologist opined that defendant had a "marginal ability" to understand the criminal proceedings but that he did not have the "ability to assist counsel in the conduct of a defense in a rational manner." The report indicates that in 2011, when defendant had been "compelled to take medications," defendant showed "a reduction in symptoms resulting in his return to court and eventual adjudication." As of July 2016, defendant was again subject to an order "permitting the administration of psychotropic medications if [he] refuses to take them" and he had begun to show "signs of reduction in extremes of mood and irritability."
On September 6, the medical director of the state hospital issued a certification of competency for defendant. According to the report, defendant had demonstrated sufficient ability to understand the proceedings against him and was then "currently able to assist in . . . his defense in a rational manner." His symptoms "of thought disorganization, tangentiality and pressured speech are mild and are not so substantial that they impede his trial competency, at this time." The psychologist's report indicates that defendant was taking psychotropic medication and that he was compliant with his medication at that time. However, he was no longer subject to a court order compelling the administration of medication if he refused to take it. The report references a "pharmacological plan to: 'reduce olanzapine slowly, add mirtazapine, and Depakote." Based on the above report, the court found defendant competent and reinstated criminal proceedings. Defendant was returned to the county jail.
Defendant's fourth attorney was appointed on October 6, 2016. Between October 2016 and February 2017, defendant continued to make motions regarding his representation, each of which was denied. In January 2017, defendant made a Faretta motion to represent himself at trial. The court appointed Dr. Watt to evaluate his competency to conduct his own defense. Watt submitted a report opining that defendant was not competent to represent himself. According to the report, when asked why he wanted to represent himself, defendant reported that "he felt betrayed by the lawyers that he had before." The report explains that while defendant "understands that competency means how much he understands what is going on in court" he has "issues with the word 'competent' " and "feels that his intelligence and his abilities are also questioned as well." Defendant "expressed anger and resentment" with her based on her prior opinion that he was incompetent to stand trial. The report indicates that defendant acknowledged that he had stopped taking his psychiatric medications since returning to the county jail. Watt noted that he "appeared to be more stable than his last observation" but also observed that as the interview progressed defendant "became more and more disorganized and rambling in his speech" and his "thoughts were racing." Defendant "had a hard time listening to the questions asked. [He] presented with symptoms related to bipolar disorder, including agitation, unstable moods, grandiosity, disorganized thinking and rambling speech. Despite these symptoms, [defendant] denied having any serious psychological symptoms" and did not "feel the need for taking psychotropic medication." Defendant's Faretta motion was denied.
On February 2, 2017, defense counsel expressed doubt as to defendant's competency. The trial judge suspended the proceedings and transferred the matter to a different judge for resolution of the motion. Defense counsel advised the judge that he had declared a doubt "on the grounds that [defendant] suffers from a mental disorder which causes him not to be able to rationally cooperate with defense counsel." The judge observed this case had already been suspended and defendant had already been "restored." Thus, the judge asked, "What's the change of circumstances?" Defense counsel explained that when he was first appointed to represent defendant, he and defendant communicated and discussed the case, but "[s]ince then [defendant] has degraded to the point where he doesn't talk to me" and defendant was refusing to sit next to counsel in court. The judge found no "legal basis for a finding of lack of competency" and returned the matter to the trial court.
The following day, defense counsel advised the trial court that defendant was refusing to communicate or sit with him in court. He reported that he believed defendant had stopped taking medication after his return from the state hospital. Defendant initially had been communicating with him but all communication ended in December 2016. Counsel advised the court that he had subpoenaed the jail records to search for a medication order. The court refused to suspend the proceedings but appointed Dr. Douglas Korpi to submit an opinion about whether there is "substantial evidence to believe [defendant] is incompetent."
On February 6, 2017, defendant's medical records were delivered to the court. Because defendant refused to waive the psychotherapist-patient privilege, the trial court declined to make those records available to counsel. However, the trial court permitted Dr. Korpi to review the records as well as other pertinent documents for the purpose of his evaluation. The Jail Psychiatric Services records that were reviewed by Dr. Korpi confirm that defendant's medications were discontinued because defendant had refused to take them and was suspected of diverting his medication to others. As of October 13, 2016, Jail Psychiatric Services had concluded that medication was "not currently indicated" but that a referral should be made "if signs of mental disorder are observed."
On February 8, 2017, Dr. Korpi submitted a letter advising the court that he could not offer an opinion as to defendant's trial competency because defendant had refused to be interviewed. Dr. Korpi's report reads: "This is a terribly difficult case. Back in 2006, when I initially interviewed Mr. Batiste, I saw no evidence of psychosis and diagnosed only cocaine dependence and an antisocial personality disorder. In this regard, let me note that on 02/08/17, I had an opportunity to speak with a deputy who has known the defendant for many years and was well aware of the fact Mr. Batiste 'was always being crazy and refusing to talk to his attorney.' He also noted that the defendant was currently housed in general population and had a cellmate, noting, 'He's fine, eats meals, hangs with people, not at all crazy. He's fine as long as he gets his way, then he's off.' The deputy went on to explain that . . . the defendant is always quite polite and appropriate with him and only now and again was placed in safety cells. [¶] As regards the defendant being relatively sane, I should note that as of this writing I have jail psychiatric service [JPS] records only through 10.24.16. When last JPS last did a full evaluation on 10/06/16, he was diagnosed as 'in full remission' from his bipolar condition, even though he was suspected of not taking his antipsychotic (Olanzapine) and mood stabilizing (Remeron) medications. All of this leads me to believe that the defendant can, at least at times, present quite ably and free of psychosis. [¶] Alas, there is history in his case: the defendant was been found Trial Incompetent on four occasions, in 1991, 2011, 2012, and 2016. He has been diagnosed as suffering bipolar condition and has been treated with a whole host of antipsychotic and mood stabilizing medications. Any number of clinicians have noted inflated self-esteem, grandiosity, loud and pressured speech, distractibility, disjointed thinking, agitation, racing thoughts, and suspiciousness, He has talked about a 'conspiracy' being against him, he has worried that people are writing a book that will be made into a movie about him, he has talked about being of 'royal blood,' and he has suspected that there might be 'something in the ventilation system.' As well he has endorsed a history of auditory hallucinations. When all is said and done, it would appear reasonable to conclude that the defendant is indeed bipolar and can be transiently psychotic. In this regard I am particularly impressed with the fact that Mr. Batiste was cooperative with [defense counsel] and relatively stable upon his return from Napa State Hospital but began a course of uncooperative, wild and belligerent behavior about the same time that he discontinued his anti-psychotic and mood stabilizing medication. [¶] And so, it all comes down to the defendant's current condition. He would not talk to me and he is being housed in general population, absent medication and absent a need for involuntary psychiatric treatment. Again, I know next to nothing of his functioning since October 2016 and have grave questions as to why it is that he will not speak with his attorney. Certainly he could be psychotic, but certainly too, he could be simply obstreperous and antisocial. It is in the nature of being bipolar that an individual will have periods of clarity and periods of depression then mania. It is, at the present time, almost impossible to know where the defendant is in terms of his cycling. He could be paranoid and relatively quietly psychotic, or he could simply be in his regular antisocial mind set."
Defense counsel argued that Dr. Korpi's report showed that defendant was on medication when he was returned from the state hospital but that he had discontinued the medication while in jail. Counsel asked that Dr. Watt be reappointed to evaluate defendant's competency. The court noted that Dr. Korpi's report was "inconclusive" because defendant refused to be interviewed but declined counsel's request for a new evaluator. Ultimately, the court concluded that there was no basis to suspend the proceedings. The court explained that it did "not believe that [defendant] is incompetent by [his] behavior. He is cogent in everything that he says. He understands everything he says. He understands the procedures. He is quite articulate in his responses to the court about habeas corpus, about motions that he has, and the court does not believe that he is incompetent."
Over the course of the next few days, while jury selection progressed, defense counsel continued to question defendant's competency based on defendant's conduct and counsel's "review of his mental health records." Counsel believed that defendant was uncooperative because he had not been given medication since his return from the state hospital and he had "decompensated, and [his] mental condition of bipolar had resurfaced." Counsel explained that in defendant's prior San Mateo case, he was declared incompetent twice. After the second time he was restored to competence, the court issued an order requiring that he remain in treatment with medication at the state hospital throughout the trial.
Section 1372, subdivision (e) authorizes the court to order that a defendant remain during trial at "the hospital or facility of his or her original commitment" based on the opinion of the "director of the facility where the defendant is receiving treatment . . . that the person will need continued treatment in a hospital or treatment facility in order to maintain competence to stand trial or that placing the person in a jail environment would create a substantial risk that the person would again become incompetent to stand trial before criminal proceedings could be resumed."
The trial court continued to reject counsel's competency concerns, finding that "no medical doctor . . . has ordered any medication for [defendant] since he came back to the court and was found to be competent" and that defendant's lack of cooperation was a "ploy by the defendant" to delay the commencement of his trial. Later, during the course of trial as defense counsel continued to press his concerns, the court confirmed, "If the medical authorities [at Jail Psychiatric Services] believe that [defendant] should be on medication, they will do so. But he's not on it. And they're more than well versed as to [defendant's] medical history."
Thus, the court was apprised that although defendant had a history of retaining competency when taking medication, he was allowed to stop taking his medications almost immediately upon his return to county jail. Within approximately four months, defense counsel began to suspect that his symptoms had returned and that they were preventing him from rationally assisting with his defense. Dr. Watt's most recent psychological evaluation confirmed that defendant was again suffering significant symptoms of his mental disease. As Rodas makes clear, this was substantial evidence of changed circumstances which required another formal competency proceeding. The fact that Jail Psychiatric Services was not administering medication to defendant was no indication that he was not in need of medication or could maintain his competency without medication, especially in view of his documented mental history, the specific indication in the medical records that a referral for medication should be considered if symptoms recurred, and Watt's professional observation three months later that defendant was symptomatic. (See also In re Mille (2010) 182 Cal.App.4th 635, 647 [county jail is deemed a treatment facility by statute " 'for the sole purpose of administering antipsychotic medication pursuant to a court order,' " and is no substitute for treatment at a state hospital or other treatment facility.].)
Similarly, as in Rodas, the court's observation of defendant's behavior in court was not a sufficient basis to disregard the other evidence of his return to incompetency. "[W]hile aspects of defendant's performance in his colloquy could be seen as weighing to some degree against counsel's evidence of incompetence, the colloquy did not provide an adequate basis for resolving any conflict in the evidence concerning defendant's competence. In Pate v. Robinson, supra, 383 U.S. 375 . . . , the high court made clear that when substantial evidence of incompetence otherwise exists, a competency hearing is required even though the defendant may display 'mental alertness and understanding' in his colloquies with the trial judge. (Id. at p. 385.) The court explained that while the defendant's in-court behavior 'might be relevant to the ultimate decision as to his sanity, it cannot be relied upon to dispense with a hearing on that very issue.' " (Rodas, supra, 6 Cal.5th at pp. 233-234.)
We do not question the trial court's concern with avoiding repetitious interruptions in the proceedings and the potential for abuse by a defendant intent on forestalling the day of reckoning. Nonetheless, when presented with evidence of a substantial change of circumstances, such as the defendant having gone off the medications that returned him to competence, the defendant's right to due process must overcome those concerns. In such a case, a further hearing under section 1368 is required (and should defendant be found incompetent and further medication necessary to regain and retain competence, use of the section 1372 procedure may be appropriate). There having been no such hearing when called for in this case, as in Rodas,, we must reverse the judgment of conviction and remand for further proceedings. (See Rodas, supra, 6 Cal. 5th at p. 240 [Reversal of conviction is required where "fluctuating nature of defendant's symptoms, the passage of time, and the lack of contemporaneous expert evaluations" preclude fair consideration of competency at a retrospective hearing.].) Defendant may be retried on the charges for which he was convicted if he is not found presently incompetent to stand trial. (Id. at pp. 241-242.)
Disposition
The judgment is reversed.
POLLAK, P. J. WE CONCUR: STREETER, J.
TUCHER, J.