Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF115450A, Michael G. Bush and Stephen P. Gildner, Judges.
Judge Bush presided over the competency hearing; Judge Gildner presided over the remaining portion of the case relevant to the appeal.
Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, Acting P.J.
The trial court found Martin Esteban Lopez to be incompetent to stand trial pursuant to the provisions of Penal Code section 1367 et seq. He challenges the trial court’s order, arguing it was not supported by substantial evidence and was the result of ineffective assistance of counsel. We reject the challenges. We will remand, however, to permit the trial court to issue, if appropriate, an order authorizing the involuntary use of antipsychotic medications that complies with the statutory requirements.
All further statutory references are to the Penal Code unless otherwise stated.
FACTUAL AND PROCEDURAL SUMMARY
The complaint alleged that Lopez raped Jane Doe I by means of force or fear, in violation of section 261, subdivision (a)(2). The complaint also alleged that Lopez caused great bodily injury in the commission of the rape, used ether (a deadly weapon), and bound the victim. (§§ 12022.3, 12022.7, 667.61, subd. (e)(3), (6).) On another occasion, Lopez allegedly battered the same victim, in violation of section 243, subdivision (d). Finally, Lopez allegedly committed a lewd act against Jane Doe II, a 15-year-old child, in violation of section 288, subdivision (c)(1).
From comments made in the record, it appears the district attorney dismissed the case just prior to trial because of witness problems and then refiled the complaint. It also appears that a competency hearing was held during the pendency of the original complaint and that Lopez was found to be competent.
The complaint was refiled on July 21, 2006. On August 2, the request of Lopez’s trial counsel for a competency examination was granted. On December 6, 2006, after a court trial, Lopez was found to be not competent to stand trial. It is from this order that Lopez appeals.
DISCUSSION
I. Sufficiency of the Evidence
Lopez argues there was insufficient evidence to support the trial court’s finding that he was mentally incompetent to stand trial. Although it is difficult to follow Lopez’s argument, he appears to be suggesting that Dr. Stephen Estner, who opined that Lopez was incompetent, lacked any basis for forming an opinion.
In resolving a sufficiency of the evidence claim, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. (People v. Maury (2003) 30 Cal.4th 342, 403.) The record must disclose substantial evidence to support the verdict -- i.e., evidence that is reasonable, credible, and of solid value. (Id. at p. 396.) “Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]” (Id. at p. 403.) We will not reverse an order or judgment for insufficient evidence “unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support’” the jury’s verdict. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Lopez’s counsel relied on Estner to support his belief that Lopez was incompetent. Estner is a board certified psychiatrist who has been practicing forensic psychiatry for 14 years. His qualifications were not questioned by Lopez at trial.
Estner examined Lopez on October 1, 2006, for about one hour. He also reviewed reports prepared by Dr. Gary Longwith, as well as criminal investigative reports regarding the assaults allegedly committed by Lopez. Estner was unable to direct the examination because Lopez spoke rapidly and was hard to interrupt. Lopez was more concerned about discussing issues that were important to him, rather than cooperating with Estner. Estner was able to conduct mental state examinations and reviewed the medications prescribed to Lopez. Estner obtained a lot of information during the examination.
As a result of his examination, Estner concluded that Lopez has a seizure disorder that has been present for many years, which was properly medicated, although the medication may have been interacting poorly with other prescribed medication. Estner also concluded that Lopez was bipolar and currently was in a hypomanic phase of the disorder “with pressured speech and some grandiosity, meaning a little bit higher self-esteem than according to the circumstances and some paranoia as well. And I thought those things were interfering with his ability to communicate and receive and exchange information.” Estner thought Lopez was “having trouble getting information and giving it back.”
The manic phase of the disorder resulted in Lopez having feelings of grandiosity, which led him to believe he could regulate his medications better than doctors, investigate his case better than the police, and represent himself better than his appointed attorney. These beliefs thus led to an overwhelming desire to express himself to his audience, whoever they may be. All of these factors interfered with Lopez’s ability to listen to others and comprehend what he was being told. This inability to exchange information prevented Lopez from being able to assist his attorney in defending against the charges he was facing. In addition, Lopez was not taking his medications as prescribed, which could interfere with his physical and mental condition. Estner felt these issues needed to be stabilized in a hospital setting.
The cross-examination focused primarily on perceived defects in Estner’s report and assertions, to which Estner agreed, that the symptoms exhibited by Lopez also are present in competent defendants in similar circumstances. Estner reiterated his opinion, however, that based on his entire interview, and all of the factors he considered, Lopez was not competent to stand trial because he could not assist counsel.
Simply stated, Estner’s opinion was reasonable, credible, and of solid value. He was qualified to render an expert opinion, he examined Lopez, and, as a result of that examination, he concluded Lopez was not legally competent to stand trial. The trial court properly relied on Estner’s opinion, especially since the other expert witnesses who testified on behalf of the prosecution had interviewed Lopez before Estner. Estner’s examination, therefore, was the most current. As both of the prosecution’s experts agreed, Lopez’s condition could change negatively over time.
Estner’s opinion provided substantial evidence to support the trial court’s findings. We reject Lopez’s claim to the contrary.
II. Failure to Testify at Competency Hearing
Lopez did not testify at the competency hearing. Two months later, he informed the trial court that trial counsel did not allow him to testify. Lopez argues that his constitutional rights were violated. (See, e.g., People v. Robles (1970) 2 Cal.3d 205, 214-215 (Robles).)
The cases on which Lopez relies state that “a defendant who timely demands to take the stand contrary to the advice given by his counsel has the right to give an exposition of his defense before a jury. [Citation.] The defendant’s insistence upon testifying may in the final analysis be harmful to his case, but the right is of such importance that every defendant should have it in a criminal case. Although normally the decision whether a defendant should testify is within the competence of the trial attorney [citation], where, as here, a defendant insists that he wants to testify, he cannot be deprived of that opportunity.” (Robles, supra, 2 Cal.3d at p. 215, fn. omitted.)
Here, Lopez did not make a request to testify that was refused by the trial court. Instead, he remained silent. As explained in Rock v. Arkansas (1987) 483 U.S. 44, trial courts may not prevent a defendant from testifying if he or she wants to do so. (Id. at pp. 51-52.) There is no error, however, when the defendant fails to inform the trial court that he or she wishes to testify. In other words, there is no error because the trial court did not refuse to permit Lopez to testify because the request never was made to the trial court. Instead, this appears to be, if anything, a dispute between Lopez and trial counsel. The decision made at that time does not implicate any constitutional rights in the absence of a request by the defendant for the trial court’s assistance.
III. Ineffective Assistance of Counsel
Lopez contends he received ineffective assistance of counsel in various ways. To prevail on a claim of ineffective assistance of counsel, Lopez must establish that his counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms and, had counsel provided competent representation, it is reasonably probable Lopez would have obtained a more favorable outcome. (People v. Dennis (1998) 17 Cal.4th 468, 540-541.) As we will explain, we disagree with all of these claims.
A. Argument related to Marsden hearing
People v. Marsden (1970) 2 Cal.3d 118.
Lopez begins by contending that his counsel was ineffective because counsel argued that once Lopez was found to be incompetent to stand trial, it would be improper for the trial court to entertain a Marsden motion made by Lopez. We need not decide whether trial counsel was correct because the trial court permitted Lopez to make his motion and thereafter denied the motion. Since the trial court heard Lopez’s request for new counsel, Lopez cannot establish any prejudice resulting from his attorney’s argument.
B. Refusal to permit Lopez to testify
As stated above, Lopez did not testify at the competency hearing. At the above described Marsden hearing, held two months after the competency hearing, Lopez complained that his counsel “did not allow [him] to get up on the stand to prevent [sic] [him] from producing a competency hearing.” Lopez now argues trial counsel was ineffective because he refused to permit him to testify.
We reject Lopez’s contention for two reasons. First, there is a complete lack of evidentiary support for Lopez’s argument. There is no request by Lopez to testify in the record, which we find unusual because the record otherwise demonstrates that Lopez was not reticent about making his requests known. Also, there is no evidence that such a discussion between Lopez and his trial counsel even took place.
Second, Lopez has not demonstrated that, if he had testified, he would have obtained a better result at the competency hearing. Merely asserting that your attorney erred is insufficient. Lopez was required to establish he would have achieved a better result, that is, he would have been found competent to stand trial, to succeed on this claim. He cannot do so. The claim must be denied.
C. Period of commitment
At the commitment hearing, trial counsel argued the trial court was required to impose a minimum commitment of no less than 180 days. This argument was based on trial counsel’s interpretation of sections 1370 and 1601. Lopez argues trial counsel’s interpretation of the applicable statutes was erroneous, resulting in ineffective assistance of counsel.
Once again, we need not decide whether trial counsel’s interpretation of the controlling statutes was correct because Lopez cannot demonstrate any prejudice as a result of this argument. The trial court did not impose a minimum term of commitment after hearing argument from both parties; instead, it imposed a maximum period of commitment of three years.
D. Notice of appeal
Finally, Lopez claims his counsel was deficient because counsel failed to file a notice of appeal. Once again, we need not decide if trial counsel erred because a notice of appeal was filed. Lopez has not been foreclosed from any argument. Accordingly, Lopez has not suffered any prejudice by this perceived slight.
IV. Involuntary Medication
Prior to making an order committing a defendant to a state hospital or other mental institution, the trial court is required to determine whether the defendant consents to the administration of antipsychotic medications. (§ 1370, subd. (a)(1)(F)(2)(B).) If a defendant refuses antipsychotic medications, the trial court may order the involuntary administration of antipsychotic medications if it determines that certain conditions exist. (§ 1370, subd. (a)(1)(F)(2)(B)(iii).)
Here, it appears that Lopez would not consent to the administration of antipsychotic medications. The trial court ordered the involuntary medications under the conditions stated in section 1370, subdivision (a)(1)(F)(2)(B)(ii)(III). This section authorizes involuntary medication if (1) the defendant is charged with a serious crime against the person or property of another; (2) the involuntary medication is substantially likely to render the defendant competent to stand trial; (3) the medication is unlikely to have side effects that interfere with the defendant’s ability to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a reasonable manner; (4) less intrusive treatments are unlikely to have substantially the same results; and (5) antipsychotic medication is in the patient’s best medical interest in light of his or her medical condition.
The trial court received in evidence, by stipulation of the parties, a report from the Kern County Mental Health Department to support its order for involuntary administration of antipsychotic medication. This one-page report, prepared by Robert Sincoff, M.D., stated (1) involuntary administration of psychotropic medications was medically appropriate; (2) Lopez was diagnosed as “Bipolar Disorder NOS”; (3) medication would stabilize Lopez’s symptoms and mood swings; (4) there was a substantial likelihood Lopez would be restored to competency if medicated; (5) there was a substantial likelihood Lopez could not be restored to competency without treatment; and (6) there were no medically indicated alternative treatments to address Lopez’s mental health condition. In addition, the report stated that Lopez currently was prescribed Prozac and Seroquel. The types of medication that would be most appropriate for treating Lopez’s condition were antidepressants and antipsychotic medications. A long list of common side effects were listed, as well as a statement that the “side effects are unlikely to significantly interfere with [Lopez’s] ability to assist in [his] defense at trial.”
Lopez argues that the evidence was deficient in several respects. First, he claims there was insufficient evidence that involuntary administration of medication would render him competent to stand trial because the actual medications to be administered were not identified. We disagree. The report stated that Lopez would be treated with antidepressants and antipsychotic medications. This was sufficient. We are aware of no authority that requires the brand name of the medications that are to be administered be named in a report. Moreover, Lopez’s physicians should not be limited to certain medications during his treatment. It may be discovered during treatment that Lopez reacts unfavorably to some medications and more favorably to others. The treating physicians should have the flexibility to determine the optimum course of treatment as they gain experience with Lopez.
Second, Lopez argues there was insufficient evidence that administration of the medications would not interfere with his ability to participate in his defense. Specifically, Lopez argues the common side effects of such medications would render him unable to participate in his defense. The People concede the trial court failed to make a finding on this factor and that remand is necessary to permit the necessary finding if there is evidence in the record to permit it to do so.
Finally, Lopez argues there was insufficient evidence that less intrusive means of treatment could not achieve the same results. Dr. Sincoff specifically stated in his report that “[T]here are no medically indicated alternative treatments” for Lopez’s mental health condition. This was sufficient evidence to meet the statutory requirements because the lack of alternative treatments necessarily eliminated any less intrusive treatment.
Lopez argues that because he has been treated successfully with Prozac and Seroquel in the past, this is a less intrusive treatment. This argument assumes that Prozac and Seroquel are not antidepressant and antipsychotic medications. They are, however, within the category of medications recommended by Dr. Sincoff. (Physician’s Desk Reference (62d ed. 2008) pp. 1837-1839, 3451-3453.) Accordingly, this argument fails.
DISPOSITION
The matter is remanded to permit the trial court to make findings on the question of whether involuntary medication will interfere with Lopez’s ability to participate in the defense of this action. The orders appealed from are affirmed in all other respects.
WE CONCUR: GOMES, J., KANE, J.