Opinion
B165412.
11-6-2003
THE PEOPLE, Plaintiff and Respondent, v. HOWARD LOCKHART, Defendant and Appellant.
Jonathan B. Steiner and Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Susan Lee Frierson, Deputy Attorney General, for Plaintiff and Respondent.
Defendant, Howard Lockhart appeals from his vandalism conviction. (Pen. Code, § 594, subd. (a).) The only issue he raises on appeal is that his sentence must be reversed because of noncompliance with the competency provisions of section 1369. We agree with defendants contention the sentence must be reversed.
On January 15, 2003, at the probation and sentence hearing, after defendant made an outburst, the trial court declared a doubt as to his competency, and two psychiatrists were appointed to examine him. Two reports were prepared which indicated defendant was competent. On March 3, 2003, the trial court stated: "This matter was sent out for a psychiatric evaluation. It appears that the two doctors believe that he is competent at this time. I believe were here for sentencing in this matter, after the trial." Defendant acted out again, was removed from the courtroom, and then sentenced to prison. No hearing was held on the competency issue as required by section 1369. This constitutes reversible error. (People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 70-71; People v. Hale (1988) 44 Cal.3d 531, 541; People v. Pennington (1967) 66 Cal.2d 508, 516-518; People v. Castro (2000) 78 Cal.App.4th 1402, 1415-1416.)
We reject the arguments of the Attorney General. First, there is no merit to the suggestion that a competency hearing was in fact held. The clerks minutes state such a hearing was held. But the reporters transcript reflects no hearing complying with section 1369 was in fact held. The reporters transcript is controlling under these circumstances which involves the nature of the judgment actually entered. (People v. Smith (1983) 33 Cal.3d 596, 599; People v. Mesa (1975) 14 Cal.3d 466, 471; In re Candelario (1970) 3 Cal.3d 702, 705.) Second, there is no merit to the harmless error argument of the Attorney General. No hearing was held—there was no compliance with the procedures in section 1369. Hence, the failure to hold the hearing is reversible error. (People v. Superior Court (Marks), supra, 1 Cal.4th at pp. 69-70; People v. Pennington, supra, 66 Cal.2d at pp. 511-521.)
The judgment of conviction is affirmed. The sentence is reversed. Upon issuance of the remittitur, the trial court is to hold a competency trial in compliance with Penal Code section 1368 et seq. If defendant is competent to undergo sentencing, he is to be sentenced.
We concur: GRIGNON, J. and ARMSTRONG, J. --------------- Notes: All future statutory references are to the Penal Code.