Opinion
A150434
06-25-2018
THE PEOPLE, Plaintiff and Respondent, v. SULEIMAN RAHAD, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. CH-56552)
Suleiman Rahad entered a plea of no contest to attempted murder. Rahad contends the trial court erred in accepting his plea without first referring him for a Penal Code section 1368 mental competence evaluation. We affirm because no substantial evidence of incompetence was before the trial court.
Undesignated statutory references are to the Penal Code.
I. BACKGROUND
In 2013, Rahad became romantically obsessed with a woman he had never met. After she told him to stop texting her, he conducted surveillance of her home for weeks. Rahad ultimately ambushed the woman's husband, firing one shotgun round from a modified flare gun that missed the man. In September 2014, after waiver of a preliminary hearing, Rahad was charged by information with attempted murder (§§ 187, subd (a), 664, subd. (a)) while personally using a firearm (§ 12022.53, subds. (b), (e)(1), (g)), and assault with a firearm (§ 245, subd. (a)(2)) while personally using a firearm (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a)).
The trial court referred Rahad for a section 4011.6 mental health evaluation on May 26 and June 3, 2015. In each referral, possible self-harm and delusional thinking was noted, and the court requested a written report as to the evaluation and Rahad's treatment status. Only a June 8, 2015 report appears in the record in which the evaluator, a licensed clinical social worker with Criminal Justice Mental Health Services in Santa Rita Jail (part of the Alameda County Behavioral Health Care Services), wrote that Rahad was not gravely disabled or a danger to himself or others as defined by Welfare and Institutions Code section 5150. Rahad denied current suicidal ideation and was diagnosed with a mood disorder. He was receiving medication and monitoring by mental health staff. The court acknowledged receipt of the report at a June 24 hearing.
The first paragraph of section 4011.6 provides: "In any case in which it appears . . . to any judge of a court in the county in which the jail . . . is located . . . that a person in custody in that jail . . . may be mentally disordered, he or she may cause the prisoner to be taken to a facility for 72-hour treatment and evaluation pursuant to Section 5150 of the Welfare and Institutions Code and he or she shall inform the facility in writing, which shall be confidential, of the reasons that the person is being taken to the facility. The local mental health director or his or her designee may examine the prisoner prior to transfer to a facility for treatment and evaluation. Upon transfer to a facility, [certain provisions of the Lanterman-Petris-Short Act (Welf. & Inst. Code, § 5000 et seq.)] shall apply to the prisoner."
The first referral form bears a handwritten date of "5/26/14," but the minute order and Rahad's representations on appeal indicate the first referral was made on May 26, 2015.
An August 13, 2015 minute order stated, "defense requests 4011.6 forthwith." An August 20 report from Criminal Justice Mental Health Services again stated Rahad did not meet Welfare and Institutions Code section 5150 criteria. The report indicated Rahad had been monitored by mental health staff for a significant period of time; he had been assessed by a psychiatrist resulting in a medication adjustment; and there was concern Rahad might be malingering—i.e., feigning symptoms. The evaluator said Rahad would continue to be monitored by mental health staff while in custody. The court acknowledged receipt of the report on August 27.
In January 2016, the court issued an order to allow a defense expert access to Rahad for testing and evaluation. The case was scheduled for a jury trial on April 18. On April 13, defense counsel requested a continuance on the following grounds: "I have been informed by [Behavioral Health Care Services], Santa Rita Jail that [Rahad] was recently discharged from John George after a 9 day stay and was being housed in the 'safety cell' at Santa Rita due to grave concerns over defendant's mental well being and safety. I have been unable to visit defendant due to his status in the safety cell. [¶] . . . Today, I received an update from [Behavioral Health Care Services]: [Rahad] was again sent to John George yesterday (4/12/16), with no further information as to his return. I have been unable to see and confer with my client for some time now, and am very concerned about his mental well being and/or competence to stand trial." Rahad was present in court on April 18, and the trial date was continued to May 13. Rahad was again present in court on May 13, but was "med scratch" on May 26. Trial was continued to June 3.
On June 3, 2016, Rahad appeared in court with counsel and, pursuant to a negotiated plea agreement, he pled no contest to both counts and admitted a firearm use allegation under section 12022.5, subdivision (a), as to both counts. The negotiated sentence was for a total term of 10 years: seven years for attempted murder, three years for firearm use, and a stayed or concurrent term for assault. The court reviewed the plea terms with Rahad, obtained a written and oral waiver of rights, and found Rahad had made a knowing, free, and voluntary waiver of rights. On August 4, Rahad was sentenced to 10 years for attempted murder and the firearm use enhancement.
On November 16, 2016, Rahad completed a pro se notice of appeal and request for a certificate of probable cause to challenge his plea. With regard to the certificate of probable cause, he wrote in part: "Before I took my plea as well as before sentencing, I was hospitalized in John George Psychiatric Hospital due to delusional anxiety, hallucination, and suicidal tendencies and a great harm towards myself right before me taking this plea and right before sentencing. And I was also having severe memory problems when I was hospitalized, I honestly can[']t recall accepting this plea or being sentenced. And I have had these tendencies quite often since I've been in custody and as a very long history of severe mental problems and being hospitalized even in youth psychiatric hospitals. Severe mental illness runs in my family." In February 2017, we granted Rahad's motion for constructive filing of the notice of appeal and directed the trial court to file the documents. In March 2017, the trial court granted the certificate of probable cause.
II. DISCUSSION
Rahad argues the trial court erred by failing to declare doubt about his competence and order a section 1368 competency hearing before accepting his plea and sentencing him. Although Rahad waived his right to appeal as part of his no contest pleas, he argues the waiver was involuntary if he was incompetent and a competency hearing is required on remand to resolve that issue. Since the appeal waiver would be potentially ineffective if the plea were invalid, we address the merits of his claim. (See People v. Laudermilk (1967) 67 Cal.2d 272, 282.) We affirm because we find no substantial evidence of incompetence which would have required the trial court to declare a doubt under section 1368.
"Both the due process clause of the Fourteenth Amendment to the United States Constitution and state law prohibit the state from trying or convicting a criminal defendant while he or she is mentally incompetent. [Citations.] A defendant is incompetent to stand trial if he or she lacks ' "a sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and . . . a rational as well as a factual understanding of the proceedings against him." ' [Citations.] [¶] Both federal due process and state law require a trial judge to suspend trial proceedings and conduct a competency hearing whenever the court is presented with substantial evidence of incompetence, that is, evidence that raises a reasonable or bona fide doubt concerning the defendant's competence to stand trial. [Citations.] The court's duty to conduct a competency hearing may arise at any time prior to judgment." (People v. Rogers (2006) 39 Cal.4th 826, 846-847.)
"The decision whether to order a competency hearing rests within the trial court's discretion, and may be disturbed upon appeal 'only where a doubt as to [mental competence] may be said to appear as a matter of law or where there is an abuse of discretion.' [Citation.] When the court is presented with 'substantial evidence of present mental incompetence,' however, the defendant is 'entitled to a section 1368 hearing as a matter of right.' [Citation.] On review, 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 failure to declare a doubt and conduct a hearing when there is substantial evidence of incompetence . . . requires reversal of a judgment of conviction." (People v. Rogers, supra, 39 Cal.4th at p. 847.)
"Evidence of incompetence may emanate from several sources, including the defendant's demeanor, irrational behavior, and prior mental evaluations. [Citations.] But to be entitled to a competency hearing, 'a defendant must exhibit more than . . . a preexisting psychiatric condition that has little bearing on the question . . . whether the defendant can assist his defense counsel.' [Citations.] [¶] A trial court's decision whether or not to hold a competence hearing is entitled to deference, because the court has the opportunity to observe the defendant during trial." (People v. Rogers, supra, 39 Cal.4th at p. 847; see generally People v. Ghobrial (2018) ___ Cal.5th ___ [2018 Cal. Lexis 4408, *29-*32].)
Here, no substantial evidence was before the court at or before sentencing that required it to declare a doubt about Rahad's competence. As evidence of possible incompetence, Rahad relies on (1) the section 4011.6 referrals, (2) defense counsel's "declaration stating concern for his competence to stand trial," and (3) Rahad's reported suicidal tendencies. Considered either individually or collectively, the evidence does not raise a reasonable or bona fide doubt concerning Rahad's competence to stand trial.
Rahad characterizes the reasons stated for the section 4011.6 referrals as the court's own words and then argues that the statements reflected the court's concern about Rahad's competence, thus requiring it to order a section 1368 evaluation. (See § 1368, subd. (b); People v. Rogers, supra, 39 Cal.4th at pp. 846-847.) We disagree with Rahad's interpretation. In ordering the referrals, the court did not purport to make personal observations about Rahad's mental state, but requested evaluations based on Rahad's reported conduct. (See § 4011.6 ["any case in which it appears . . . to any judge . . . that a person in custody . . . may be mentally disordered" (italics added)].)
Rahad argues that, because the section 4011.6 mental health evaluations did not address symptoms described in the referrals that may have suggested incompetence, the court was then required to refer him for a section 1368 competency evaluation. But section 4011.6 evaluations address mental health issues distinct from the question of competence to stand trial (see People v. Ford (1997) 59 Cal.App.4th Supp. 1, 4)—i.e., whether a defendant is gravely disabled or a danger to herself or to others (§ 4011.6; Welf. & Inst. Code, § 5150, subd. (a)). In contrast, a section 1368 evaluation assesses whether "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." (§ 1367, subd. (a).) While a section 4011.6 report may in some circumstances include information that sheds light on a defendant's competence to stand trial (see, e.g., People v. Hightower (1996) 41 Cal.App.4th 1108, 1110-1112), "competency" is not the same as "mental health" and the issue in a competency evaluation is not whether a defendant may be mentally ill in some sense. (See People v. Kurbegovic (1982) 138 Cal.App.3d 731, 749; People v. Ghobrial, supra, 2018 Cal. Lexis 4408 at pp. *30-*37.) Nothing in the section 4011.6 reports here suggested Rahad's mental condition required more comprehensive evaluation or analysis. On the contrary, the court was advised that Rahad denied suicidal ideation, he was diagnosed with a "mood disorder," he was receiving appropriate medications, and there was some concern he might be malingering.
Moreover, even a history of serious mental illness does not necessarily constitute substantial evidence of incompetence that would require a court to declare a doubt concerning a defendant's competence and to conduct a hearing on that issue. (See, e.g., People v. Ramos (2004) 34 Cal.4th 494, 508 [defendant must exhibit more than a preexisting psychiatric condition to be entitled to a competency hearing].) In Ramos, our Supreme Court found that evidence of more serious mental disturbances than anything Rahad displayed did not amount to substantial evidence of incompetence requiring a competency hearing. (Id. at pp. 508-511 [defendant's death wish, history of psychiatric treatment, planned suicide attempt, propensity for violence, and psychiatric testimony that he was physically abused as a child and had a paranoid personality disorder did not constitute substantial evidence of incompetence requiring a competency hearing]; see People v. Blair (2005) 36 Cal.4th 686, 714 [evidence the defendant was found insane and confined to a mental hospital for an unspecified period 15 years prior to trial, without more, was insufficient to compel doubt as to competence]; People v. Ghobrial, supra, 2018 Cal. Lexis 4408 at pp. *32-*37 [extensive evidence of mental illness presented during penalty phase insufficient to raise doubt about competence].) Cases cited by Rahad are readily distinguishable. (See People v. Pennington (1967) 66 Cal.2d 508, 511-514, 516, 519-520 [paranoid schizophrenic defendant with auditory hallucinations repeatedly interrupted court proceedings, showed mental distress; psychiatrist and defense counsel opined he was incompetent]; People v. Samuel (1981) 29 Cal.3d 489, 497-498, 500-501 [four psychiatric reports and 13 medical professionals' testimony that defendant's chronic schizophrenia with aural hallucinations and mental retardation cast significant doubt on his competence].)
Here, contrary to Rahad's suggestion, the court never expressed doubt about his competence, either before or after section 4011.6 evaluations. Nor did defense counsel, even after an apparent expert evaluation of Rahad subsequent to the section 4011.6 referrals, express a doubt as to Rahad's competence. (See § 1368, subd. (b) ["[i]f counsel informs the court that he or she believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendant's mental competence is to be determined in a hearing which is held pursuant to Sections 1368.1 and 1369"].) The court was entitled to assume Rahad's counsel understood the difference between a section 4011.6 mental health evaluation and a section 1368 competency evaluation. The court also was entitled to infer from counsel's failure to request a section 1368 evaluation (either before or after the § 4011.6 evaluations) that any concerns about Rahad's symptoms did not cause counsel to question whether Rahad could understand the nature of the criminal proceedings or rationally assist counsel in his defense. Defense counsel again expressed no doubt about Rahad's competence when he appeared with Rahad on June 3, 2016, to enter a no contest plea pursuant to a plea agreement. (See People v. Ghobrial, supra, 2018 Cal. Lexis 4408 at pp. *36-*37 [noting defense counsel's failure to declare doubt despite extensive presentation of mental illness evidence at penalty phase].) We note Rahad engaged in a coherent, lucid plea colloquy with the court at the June 3 hearing and exhibited no overt signs of incompetence. The court, with full opportunity to observe Rahad during that colloquy, found Rahad's waiver of rights was knowing, voluntary, and intelligent, and it expressed no doubt as to his competence. Finally, at the time of sentencing, neither the court nor defense counsel expressed any doubt as to Rahad's competence. The court then had before it a probation report referencing Rahad's coherent explanation to arresting officers of the circumstances of his offenses, and his detailed discussion of his planning and preparation for the attack.
Rahad cites defense counsel's April 2016 declaration in support of a motion to continue the trial, which stated in part: "I . . . am very concerned about [Rahad's] . . . competence to stand trial." This declaration did not invoke section 1368, subdivision (b), and it did not constitute substantial evidence of Rahad's incompetence. The declaration itself made clear defense counsel was operating on limited information when he wrote it. After the court granted the requested continuance (and later continued the trial date twice more), defense counsel did not thereafter express a doubt about Rahad's competence even though he appeared in court with Rahad in April and May 2016—thus clearly having had an opportunity to personally observe Rahad's demeanor and at least minimally confer with him.
Rahad suggests the court's observation of Rahad's demeanor at the plea hearing carries little weight because that judge had not handled prior hearings in the case and therefore "had little interaction with [Rahad] to assess his mental competence." We do not rely solely on Rahad's demeanor at that hearing and the court's acceptance of Rahad's plea to conclude there was no substantial evidence of incompetence. --------
In sum, while there may well have been evidence Rahad suffered from some sort of mood or conduct disorders, no substantial evidence was presented to the trial court that Rahad was unable to appreciate the nature of the proceedings against him or lacked the ability to meaningfully participate in his defense.
III. DISPOSITION
The judgment is affirmed.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
NEEDHAM, J.