Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SA063128, Scott T. Millington, Judge.
Robert M. Sweet, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
KITCHING, J.
Derrick Benjamin appeals from the judgment entered following a court trial which resulted in his conviction of two counts of second degree burglary (Pen. Code, § 459) and two counts of grand theft of personal property (§ 487, subd. (a)), and findings that he had suffered two prior convictions within the meaning of the “Three Strikes” law (§§ 667, subd. (b)-(i), 1170.12, subds. (a)-(d)) and had served four prison terms (§ 667.5, subd. (b)). The trial court sentenced Benjamin to seven years, four months in prison. We affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
Daniel Miyahara and approximately nine other employees work at a company in a building located at 1960 East Grand Avenue in El Segundo. At noon on January 30, 2007, all 10 employees left the office. When they returned at approximately 2:00 p.m., Miyahara realized that his 12-inch Apple Power Book computer was gone. Miyahara had not given anyone, including Benjamin, permission to take the computer.
Krystle Quarles also works at the building located at 1960 East Grand Avenue. Quarles’s job description is “similar to that of a security guard.” Quarles indicated the building has security cameras located in the parking structure, in the loading dock area, in the building lobby, at the elevators, and in the stairwells. There are three ways to enter the building: through the lobby doors, through the loading dock area and through a café located on the first floor. When Quarles became aware of the fact that a computer had been stolen from a business in the building, she viewed the security camera footage for that day several times and made a photograph of Benjamin from the video tape.
Don McCurry is the building engineer at 1960 East Grand Avenue. McCurry, aware of the office burglary on January 30, 2007, also reviewed the footage from the video cameras for the time of day when the burglary was committed. Benjamin can be seen coming into the building through the loading dock wearing a gray sweater or sweat top. He then appears on video tape taken at 12:07 p.m., coming down the stairs and leaving the building while carrying a “silver strap case, possibly like a large laptop case.”
At approximately 7:55 a.m. on Wednesday, February 14, 2007, Angela Stowers was at work in her office on the seventh floor in the East Grand Avenue building. No other employees were present as the company was not yet open for business. As Stowers was opening up the offices, she turned on the light to a back hallway and, as she rounded the corner, ran into Benjamin. Startled, Stowers asked Benjamin if she could help him. Benjamin told Stowers he was looking for a friend. Stowers led Benjamin to the front of the offices and, after he “chatted a little more,” he got onto the elevator and left. Later that day, Stowers was interviewed by a police officer. She told the officer she thought Benjamin was “acting weird.”
Although she had not seen Benjamin enter the building on the morning of February 14, 2007, Quarles saw Benjamin get off one of the elevators. Benjamin approached Quarles and asked where a particular office was located. Quarles directed Benjamin to the third floor. After Benjamin got on the elevator, Quarles looked at the photograph of Benjamin, then called her engineer and asked him to call the police. Benjamin returned to the lobby a short time later and left the building through the lobby doors. As Benjamin walked away, Quarles watched. She saw Benjamin being stopped by police at the corner of Grand Avenue and Continental.
A few minutes before 8:00 a.m. on the morning of February 14, 2007, El Segundo Police Detective Aaron Plugge responded to a call directing him to go to the corner of Grand Avenue and Continental. There he saw Benjamin. The detective asked Benjamin if he wished to speak with the officer and Benjamin nodded his head up and down. When Plugge asked Benjamin “why he was at that location,” Benjamin “became extremely nervous. . . . He would not look at [the officer] [and] . . . he would answer [the officer] in short responses that didn’t make any sense.” Benjamin was taken into custody.
On February 14, 2007, El Segundo Police Department Detective Marco Lemus and other officers executed a search warrant at Benjamin’s apartment. There, they found the jacket Benjamin had been wearing when he came to the office building on January 30 and, in a cupboard in the bathroom, a key to a BMW.
Lemus and another officer contacted Kevin Cuxil, one of the victims who worked at the building at 1960 East Grand Avenue. Lemus, accompanied by Cuxil, went to the parking structure for the building. When Lemus activated the alarm on the key, it unlocked Cuxil’s BMW.
2. Procedural history.
On April 4, 2007 Benjamin was charged by information with two counts of second degree burglary (§ 459) and two counts of grand theft of personal property (§ 487, subd. (a)). It was further alleged that Benjamin had suffered two prior felony convictions within the meaning of the Three Strikes law (§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served four prison terms (§ 667.5, subd. (b)).
On the same day the information was filed, Benjamin made a Marsden motion. However, after hearing Benjamin’s complaints, the trial court denied the motion, finding that counsel was giving Benjamin “very good representation” and that he “[would] remain as [Benjamin’s] attorney.”
People v. Marsden (1970) 2 Cal.3d. 118.
At pretrial proceedings held on May 30, 2007, defense counsel, out of the presence of Benjamin, indicated to the trial court that Benjamin did not wish to wear street clothes during his trial. In addition, defense counsel indicated that he wanted Benjamin adequately restrained during court proceedings. Counsel stated, “[My] concern is . . . turning my back on him and looking towards the jury box with him not in restraints.” Following a hearing outside the presence of the prosecutor and the defendant, the trial court noted that Benjamin had “a very long history of psychiatric problems” and that he, on three occasions, had been housed at Patton State Hospital. The trial court then indicated that “non-visible” restraints could be used.
After explaining to Benjamin that the People were offering a sentence of six years in prison if he were willing to plead guilty to the alleged charges, the trial court and Benjamin engaged in a lengthy discussion regarding the pros and cons of taking the People’s offer. The trial court assured Benjamin that, if he went to trial and was found guilty of the alleged charges, the court would sentence him to a lengthier term. However, Benjamin decided he wanted a trial. After another lengthy discussion, Benjamin agreed to wear street clothes, rather than his jail uniform, for the trial. When the trial court then explained that Benjamin would be required to wear a “security belt” during trial, Benjamin indicated he understood.
Following a brief recess, counsel returned to the courtroom without Benjamin. Counsel again explained to the court that he had concerns for his safety. Counsel indicated he could not say “that [he felt] comfortable turning [his] back on [Benjamin] and looking at the jury . . . .” The trial court offered to have Benjamin sit at the end of counsel table, instead of next to counsel, and to “move things off the desk from in front of him, to remove temptation.” Finally, counsel and the trial court discussed how to be certain Benjamin received his medications during trial.
During a short recess taken while waiting for a panel of jurors to be brought to the courtroom, the bailiff came into the courtroom and reported that Benjamin was “stripped down naked and [said] he’s going to come out to court that way.” Following another short recess, the trial court indicated it had been informed that Benjamin was “partially dressed” and was coming out into the courtroom. When Benjamin entered the courtroom, the trial court noted that he was barefoot and wearing pants and an unbuttoned shirt.
The following day, before the jurors entered the courtroom, the trial court indicated it wished to place on the record the fact that, on the previous day and again that day, Benjamin had refused to take his medication. Benjamin’s counsel then indicated that, “as the [previous] day wore on, Mr. Benjamin was less able to understand the nature of the proceedings against him and the role of all the parties, as well as to assist in the defense.” Counsel indicated he was unable to communicate with Benjamin and that, in his state at that time, Benjamin was not competent to stand trial. In short, counsel believed Benjamin could not fully understand the proceedings and that he was unable to assist in his defense.
After referring to prior occasions when Benjamin had been adjudged incompetent, the trial court indicated it agreed with defense counsel that there was “a doubt in this matter as to the present competence of the defendant to proceed under [section] 1368 as defined therein.” The court, accordingly, suspended proceedings in the matter.
Section 1368 provides in relevant part: “(a) If, during the pendency of an action and prior to judgment, a doubt arises in the mind of the judge as to the mental competence of the defendant, he or she shall state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent. . . . At the request of the defendant or his or her counsel or upon its own motion, the court shall recess the proceedings for as long as may be reasonably necessary to permit counsel to confer with the defendant and to form an opinion as to the mental competence of the defendant at that point in time. . . .”
On August 3, 2007, defense counsel indicated that, although he did not have a report from Dr. Sharma, the doctor had left counsel a voice message stating he had found Benjamin competent to stand trial. In addition, Dr. Osborne had submitted a report indicating Benjamin was competent as long as he took his medication.
At proceedings held on September 20, 2007, Benjamin indicated he wished to make another Marsden motion. After listening to Benjamin’s complaints, the trial court determined counsel was “providing good representation . . . . He is ready to go to trial. You [Benjamin] have refused to waive time. He has gotten ready in the time he has to try this. It’s ready to go. . . . We are going to send you to trial within 12 days and he is going to continue to represent you.”
On September 28, 2007, the trial court addressed Benjamin and advised him that the six-year plea agreement was “still on the table.” As an alternative, the court indicated that the People were offering a “ten year lid.” The trial court explained that if Benjamin were willing to waive trial by jury, and instead have the matter tried by the court, he could not be sentenced to more than 10 years in prison. The trial court stated, “So if you proceeded that way, the maximum you would face would be 10 years. You would not be exposed to 25 years to life.” On the advice of his counsel, Benjamin decided to waive trial by jury and submit the matter to the court.
At proceedings held on October 1, 2007, and again on October 2, Benjamin made additional Marsden motions. After again listening to Benjamin’s complaints, the trial court denied the motions, indicating that counsel was properly representing Benjamin and would continue to do so.
The trial court found Benjamin guilty beyond a reasonable doubt of all four counts. The trial court then found Benjamin was the individual found guilty of the two alleged prior strike convictions, a 1989 robbery and a 1995 robbery. As to the prior prison terms, the trial court determined Benjamin served all four alleged terms and did not remain free of prison custody for five years between them.
At sentencing held on October 2, 2007, the trial court struck in furtherance of justice pursuant to section 1385 Benjamin’s 1989 conviction for robbery. The trial court then imposed the high term of three years in prison for the second degree burglary alleged in count one, “based upon [Benjamin’s] prior convictions,” which are numerous and date back to 1989, then doubled the term to six years pursuant to the Three Strikes law. As to Benjamin’s conviction of the second degree burglary alleged in count six, the trial court imposed a consecutive term of one-third the mid-term, or eight months in prison, doubled pursuant to the Three Strikes law, for a term of 16 months.
The trial court found that the crimes of grand theft alleged in counts two and four “arose from the same occasion and from the same set of facts.” Accordingly, the court imposed the upper term of three years as to each count based on Benjamin’s prior convictions, doubled the terms pursuant to the Three Strikes law, then stayed the terms pursuant to section 654. As to the four prison terms alleged pursuant to section 667.5, subdivision (b), the trial court struck them in furtherance of justice pursuant to section 1385.
Section 654 provides in relevant part: “(a) An[y] act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment[,] but in no case shall the act or omission be punished under more than one provision.”
In total, the trial court sentenced Benjamin to a term of seven years, four months in prison. The trial court awarded Benjamin presentence custody credit for 231 days actually served and 114 days of good time/work time, for a total of 345 days.
Benjamin filed a timely notice of appeal on October 4, 2007.
This court appointed counsel to represent Benjamin on appeal on January 17, 2008.
CONTENTIONS
After examination of the record, appointed appellate counsel filed in this court an opening brief which raised no issues and requested this court to conduct an independent review of the record.
By notice dated May 16, 2008, the clerk of this court advised Benjamin to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. In a document filed June 2, 2008, Benjamin asserted (1) he was denied due process of law because the trial court and his counsel were “more interested in a trial, than they were in [Benjamin’s] competence to stand trial[,]” (2) “trial counsel’s ineffectiveness denied [him] a third examination by a[n] independent psychiatrist to see if [he] was stable and competent to stand trial[,]” and (3) his appellate counsel was ineffective because he filed a brief which raised no issues.
DISCUSSION
1. Benjamin was not denied due process of law.
Initially, it cannot be said Benjamin was denied due process of law “as it pertains to mental health inmates.” “Section 1367, subdivision (a), provides that a defendant is mentally incompetent to stand trial when, ‘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].’ ” (People v. Ary (2004) 118 Cal.App.4th 1016, 1020.)
A review of the record, taken as a whole, indicates both the trial court and Benjamin’s counsel were well aware of the fact that Benjamin suffered from mental illness. When counsel believed Benjamin no longer understood the proceedings and could not assist him, counsel brought the state of Benjamin’s mental condition to the attention of the trial court. After a short hearing, proceedings were suspended until two qualified psychiatrists determined Benjamin was again competent to proceed with the trial.
Benjamin’s assertion restraints would not have been required if he were competent is without merit. A defendant can be competent and still require restraints. (People v. Fisher (2006) 136 Cal.App.4th 76, 80 [A “ ‘manifest need’ ” for restraints may arise upon a “showing of unruliness, an announced intention to escape, or ‘[e]vidence of any nonconforming conduct or planned nonconforming conduct which disrupts or would disrupt the judicial process if unrestrained’ ”].)
2. Benjamin’s trial counsel was not ineffective.
“In assessing claims of ineffective assistance of trial counsel, we consider whether counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.]” (People v. Carter (2003) 30 Cal.4th 1166, 1211; see Strickland v. Washington (1984) 466 U.S. 668, 694.) If the defendant makes an insufficient showing with regard to either component, the claim must fail. (People v. Holt (1997) 15 Cal.4th 619, 703.)
A review of the record indicates trial counsel acted in a competent, timely manner. In addition, it is clear trial counsel was concerned with Benjamin’s competence to stand trial. As noted above, on one occasion, when counsel indicated to the court that he believed Benjamin could not fully understand the proceedings and could not assist in his defense, the trial court suspended proceedings until two psychiatrists indicated Benjamin was again competent. Finally, trial counsel cannot be faulted for failing to ask for an additional psychiatric evaluation. Benjamin cannot show he would have benefitted from a third psychiatrist’s opinion regarding his competence to stand trial.
3. Benjamin’s appellate counsel was not ineffective.
An indigent defendant has the right to the effective assistance of competent counsel on appeal. (In re Spears (1984) 157 Cal.App.3d 1203, 1210.) “The duties which appointed appellate counsel must fulfill to meet his or her obligations as a competent advocate include the duty to ‘argue all issues that are arguable.’ ” (Ibid.) “[F]or an issue to be an arguable issue on appeal it must be reasonably arguable that there is prejudicial error justifying reversal or modification of judgment.” (Id. at p. 1211.) “[I]t is not the duty of appellate counsel to ‘contrive arguable issues.’ ” (Ibid.) In the present matter, counsel appropriately found no arguable issues.
APPELLATE REVIEW
We have examined the entire record and are satisfied that Benjamin’s counsel has complied fully with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J. ALDRICH, J.