Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. SA061220, Katherine Mader, Judge.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
I. INTRODUCTION
Defendant, Antuan Deonte Anderson, appeals following his no contest plea for two counts of robbery with firearm use. (Pen. Code, §§ 211, 12022.53, subd. (b).) Defendant argues that the trial court improperly: accepted his plea and denied his motion to withdraw his plea; failed to suspend the plea hearing to hold a competency hearing; and placed the burden of proof on him at the subsequent competency hearing. We affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Robberies
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) Between April 3, and July 26, 2006, defendant committed four robberies with his cousin and other individuals. On April 3, 2006, defendant and two other African-American men entered Ray’s Liquor in Gardena. The men forced the store owner, Sam Han, and two other salespersons at gunpoint into a storage room and directed them to lie down. After taking approximately $6,000 from the cash register, the men directed the three victims into the freezer at gunpoint. After the men left, Mr. Han noticed the phone cord was broken. The men also took some liquor, a laptop computer and Mr. Han’s coin collection. One of the salespersons, Joanne Beamon, later identified defendant as one of the robbers from a photographic lineup. Ms. Beamon recognized defendant as the individual who forced her at gunpoint to lie on the floor.
On April 4, 2006, Mike Yang, the owner of Friendly Liquors in Gardena, and two others in the store, Aloysius Chan and Wayne Takashima, were robbed at gunpoint by three African-American men. The three victims were again forced at gunpoint into a back room and ordered to lie on the floor. Shortly thereafter, defendant forced Mr. Yang to open the register at gunpoint. The men took approximately $300 from the register. They also took Mr. Yang’s wallet, which contained approximately $100, his credit cards and driver’s license. Mr. Chan’s wallet, containing approximately $400 and his driver’s license, was also taken. After going through the office desk and cabinet, the three robbers forced the three victims into a cooler at gunpoint. A female customer named Elboney Williams, who had entered the store was also forced into the cooler. Mr. Yang subsequently identified defendant’s photo from a photographic lineup, and at the preliminary hearing again identified the same photo as depicting the individual who forced him to open the register at gunpoint. Ms. Williams also identified a photo of defendant as depicting one of the robbers and said defendant was holding a dark gun.
On April 20, 2006, Raul Lopez, the owner of the Center Market in Hawthorne saw Jeremiah Williams enter the store, grab 15-year-old Cynthia E. (the minor) around the neck, and point a gun at her. Mr. Lopez saw another man near the cash register at the front of the store. Mr. Lopez pulled his own gun and shot twice at Mr. Williams. Mr. Williams released the minor and later fell to the floor. When Mr. Lopez turned toward the other register, the other man was no longer there. The minor was also shot in the head. The minor had surgery to remove a bullet from her head. The minor suffered recurring headaches and numbness in her arm. Mr. Lopez could not identify defendant at the preliminary hearing. Mr. Williams was defendant’s cousin. A semiautomatic blue steel handgun was found on the floor near Mr. Williams’ body. The responding police officers took the surveillance video from the store. Following defendant’s arrest in August 2006, he admitted having been in the Center Market at the time of the robbery and described his actions as they were depicted on a surveillance video. Defendant told the interviewing police officer that Mr. Williams told him they were going to rob a liquor store.
On July 26, 2006, four men entered the Baskin-Robbins store on Crenshaw Boulevard in Gardena. Each of them pulled out a gun. Defendant was identified by a customer as having had a Tech-9 gun with a muzzle. The witness identified a photo of the Tech-9 gun at the preliminary hearing. The photo had been taken of a Tech-9 weapon confiscated from the motel room where defendant was located on August 7, 2006.
B. Defendant’s Plea Proceedings
1. Factual and procedural background
Defendant was initially charged with 18 counts, including: murder; kidnap for robbery; robbery; firearm possession by a felon; attempted robbery; and false imprisonment. A section 12022.53, subdivision (b) allegation also applied to each count. On July 9, 2008, defense counsel indicated she anticipated a three to four-week trial. The prosecutor disagreed, indicating the trial would take less than three weeks. Defense counsel indicated she had also appointed a psychiatrist to assess “mental retardation issues” who was not immediately available. Defense counsel acknowledged that she had not filed a continuance motion, but believed her “long cause” motion would be granted. Despite her previous indication that she was ready for trial, defense counsel indicated she would be ready to try the case “within a month.” The trial court transferred the matter to Department E for trial on July 18, 2008, where defense counsel could renew her motion. The trial court then inquired whether there had been an offer in the case. The prosecutor indicated that defendant was subject to life without the possibility of parole and seven or eight life counts. The prosecutor had offered defendant a single life count or a determinate number of years. The prosecutor stated defense counsel indicated defendant would only take three years. Defense counsel corrected the prosecutor, indicating she had said that is what she thought the case was worth. The trial court encouraged the parties to discuss a disposition before the next court appearance.
On July 16, 2008, the trial was continued to July 29, 2008 on defendant’s motion. The prosecution moved to set the matter for possible disposition. On July 28, 2008, the parties notified the court that no disposition had been reached. Trial was set for September 2, 2008. On September 2, 2008, trial was continued to September 5, 2008. On September 5, 2008, both parties announced ready for trial. The matter was transferred to the master calendar with the trial set for September 15, 2008. On September 15, 2008, counsel again filed a motion for a long cause trial. Defense counsel also filed a Code of Civil Procedure section 170.6 against Judge James R. Dabney. The matter was transferred to the courtroom of Judge Katherine Mader. At that time, Judge Mader explained that she was not familiar with the strengths or weaknesses of the case. However, Judge Mader indicated that a jury panel was waiting. Judge Mader explained that the offer of the prosecutor was 24 years, less conduct credits and time served, or approximately 18.5 years. Judge Mader also informed defendant that he could elect a court trial or a jury trial. Judge Mader then indicated that counsel should confer with defendant and return with a decision before noon.
When proceedings resumed, defense counsel indicated that defendant would “take 15 years.” The prosecutor explained that he had no further discretion, having convinced his supervisor to reduce the term from 27 to 24 years. Defendant indicated his lawyer had said 20 years. The prosecutor further explained that his supervisor said: “Between 20 and 27, offer him 24. That’s it. I’m done with this. We need to go to trial. It’s been two years.” The trial court then asked defendant if he wanted to take the 24 years. After consulting further with defense counsel, defendant stated: “Please, I’ll take 20 years. Just 20. I really didn’t do nothing, sir. You can see on the video. I didn’t really do nothing, sir.” When defendant denied kidnapping anyone, the prosecutor indicated that charge would be dismissed. Judge Mader asked the prosecutor to advise defendant what he would be pleading to. The prosecutor explained that defendant would plead to two robberies. Defendant responded, “But I see a lot of people just get it run concurrent and get 12 years, 13, 15.” When defendant denied having a record, the prosecutor reminded him that he was on probation. Defendant responded, “I don’t have no strikes.” The prosecutor stated: “I know that. That’s why I’m dismissing the other counts. I know that. [¶] We’re at 24. And I don’t mean this this way, but I’ve come down three years. I have come down three years for you, sir. Okay?” The trial court then allowed counsel to speak with defendant over the lunch hour.
When defendant returned to the courtroom, he indicated that he wanted to enter a plea. Judge Mader asked the prosecutor to take the plea. Before he could do so, defendant inquired: “Do I get more credit for my two years[?]” The prosecutor responded, “You get your credit.” Defendant then asked, “How many credit[s] do I get?” Judge Mader then asked how many credits defendant would receive on the two years served in jail. The prosecutor responded, “[H]e gets 15 percent.” Defendant said, “15?” The court responded, “Yes.” Defendant then asked, “How much is that?” The prosecutor indicated they would get to that in a minute. Defendant said: “I plead to all of that. It’s a wrap.” After clarification from defense counsel, the prosecutor indicated defendant would be entering a plea as to counts 2 and 9 for the robberies in the Friendly Liquor store and the Baskin-Robbins store as well as admitting the section 12022.53, subdivision (b) allegations for a term of 24 years in state prison.
After advising defendant of his constitutional rights, the prosecutor inquired whether he understood his rights. Defendant responded, “Nah.” The following colloquy occurred: “[The prosecutor]: I’m sorry? [¶] [Defendant]: “No. [¶] [The prosecutor]: You don’t? [¶] [Defendant]: No. [¶] [The prosecutor]: You have a right to a court or jury trial. At that court or jury trial 12 people from the community would come in, listen to the evidence and decide your guilt with the standard beyond a reasonable doubt. At a court trial the judge alone would decide using the standard beyond a reasonable doubt. [¶] Do you understand those rights?” [¶] [Defense counsel]: Do you understand that? [¶] [Defendant]: Yeah, I guess. [¶] [The prosecutor]: It’s either ‘Yes’ or ‘No,’ sir. [¶] [Defendant]: Yes. [¶] [The prosecutor]: Okay. Do you waive or give up the right to a court or a jury trial? [¶] [Defendant]: No. [¶] [The Court]: Sir, if you don’t agree to give up the right to go to trial by entering this plea, then we go to trial. [¶] [Defense counsel] Maybe I better speak with him. I haven’t discussed these with him. [¶] [The prosecutor]: You have - - [¶] [The Court]: Let him listen. He understands. [¶] [The prosecutor]: Do you waive or give up your right to a court or a jury trial? [¶] [Defense counsel]: We’re not going to trial. [¶] [Defendant]: So is it yes if I don’t - - [¶] (counsel and client conferred sotto voce.) [¶] [Defendant]: Yes.”
When the prosecutor advised him of his right against self-incrimination, defendant inquired as to its meaning. Following a discussion with defense counsel, defendant waived his right against self-incrimination. Defendant responded affirmatively when asked if he gave up his right to subpoena witnesses. After the prosecutor advised that the standard of proof at either a court or jury trial would be beyond a reasonable doubt, the prosecutor asked if defendant understood and agreed to enter a plea. Defendant responded, “Yes.” The prosecutor then advised that the agreement stated on the record was 24 years in state prison as to the two robbery counts and that defendant would be subject to parole upon release. When asked if he understood, defendant said, “Yes.”
The prosecutor then advised defendant that he was “pleading to two strikes.” Defendant indicated he did not understand that. The prosecutor told defendant to speak to his lawyer. The trial court explained: “Robbery is a strike, sir. So that if you plead no contest to a strike in two different robberies, you will have two strikes on your record when you’re released from prison.” The prosecutor continued: “Do you understand that, sir? [¶] You only have to worry about that, sir, if you’re going to commit another crime. If you’re not going to commit any more crimes, you don’t have to worry about that, sir.” After an exchange between defense counsel and the prosecutor, the court inquired: “Do you want additional time to explain this to your client? We’re basically done with the plea.” The defendant interjected: “Why are you saying that about –” The court asked, “What is it you don’t understand, sir?” Defendant responded: “Excuse me, but nobody said nothing about no strike.” The court stated: “Robbery is always a strike, sir. And if you - - if you admit or you plead no contest to a robbery, the strike will be on your record. So the - - [¶] Actually, you are charged with how many strikes? You’re charged with - -” The prosecutor stated: “17.” The court then further explained that all of the counts were strikes. However, if defendant pled to the two robbery counts all the remaining counts would be dismissed. When asked if he understood, defendant responded, “I didn’t know that that was part of the deal.”
The court further explained that the law defines the crime of robbery as a violent and serious felony constituting a “strike.” The prosecutor clarified that defendant was not being sentenced to a third strike, but a future offense could be used to increase punishment. Defense counsel stated she had not explained these issues to defendant. The trial court stated: “Now it’s been explained to him. [¶] Do you understand that, sir?” Defendant responded, “Honestly, I really don’t understand this.” The trial court then allowed defense counsel additional time to explain the issue with defendant. When the proceedings resumed, the prosecutor inquired: “Sir, she’s explained to you what it means by having two strikes; is that correct?” Defendant responded, “Just give me the death penalty, ma’am.” Defense counsel stated: “I would point out to the court and counsel that I have indicated that [defendant] has seriously – serious learning disabilities, has a mental retardation issue – ” Defendant interposed, “24 years, ma’am?” Defense counsel continued: “ - - and has the ability of an 11-year-old. I am not sure that - - [¶]... [¶] - - that he is competent to understand what is going on. And - -.” The trial court stated: “[Defense counsel], you’ve had two years to investigate his competency, file any motions that need to be filed in the case.” Defense counsel responded: “Actually, I have had someone appointed, Dr. Fairbanks. And I have been in communication with him about [defendant].” Defendant stated, “This is crazy, 24 years.”
The trial court then advised defendant that they needed to know if he wanted to continue with the plea or bring in a jury. Defendant repeated, “24 years. [¶]... [¶] That’s all my life.” Defense counsel indicated she would like to talk further with defendant and, if necessary, could make a section 1368 motion and have Dr. Fairbanks in court the following day. Defendant stated: “24 years. 24 years. I love y’all. I love y’all, too. 24 years.”
After a 10-to-15 minute recess to allow defense counsel to speak with defendant, the trial court again asked defendant if he wanted to proceed with the plea. Defendant responded: “Can I just - - can I just - - I don’t care. I don’t care no more. Can I just - - can I just be by myself? That’s it. I don’t care. I don’t care. That’s it.” Defense counsel stated: “Your Honor, I’m declaring a doubt, and I will have a report by [¶]... [¶] Thursday.” The trial court asked: “Okay. So [defense counsel], we’re going to set aside the waivers that have already been taken?” Defense counsel responded, “Set aside everything, Your Honor. This man is not competent to make that - -.” The trial court noted that it was not until they got two-thirds through the plea that defendant indicated he did not understand. “Your client has been really very coherent. He’s known exactly what he wanted from the beginning of the day today. He’s negotiated basically with the prosecutor wanting a certain number of years, wanting to make sure he gets his credits. I believe he understands. [¶]... [¶] [W]hat’s going on, and I think all of a sudden now, you know, the enormity of the decision and the fact that it’s at the end of the road here is causing him to perhaps choose to act out in a way that’s completely inconsistent with the way he’s been for the entire day, which is the only time that I’ve known him.” Defendant continued to interrupt asking about his credits and stating he wanted to be by himself. Defense counsel indicated that she did not have a written report from Dr. Fairbanks but could probably obtain one immediately.
The prosecutor noted: “... I couldn’t express to the court more strongly that the defendant was completely lucid and understood exactly what was going on through the whole negotiation process. And I watched it. And he understood everything that went on until he got to the point where he... [¶]... [¶] He knows how many years he’s going to get, too. He keeps saying that. [¶] I think, to be honest with you, the court is looking at... [¶]... [¶] I think at this particular point the question should be asked again whether or not the defendant wants to enter a plea. If he doesn’t want to enter a plea, I understand that. [¶] I don’t think there’s any 1368 issue before this court.” After several exchanges between counsel and the court regarding defendant’s competency, the trial court took a recess to research the issue.
Thereafter, the trial court quoted from People v. Ramos (2004) 34 Cal.4th 494, which requires “substantial evidence” of a defendant’s lack of competence before proceedings must be stopped. The trial court then stated: “I want to just indicate several things for the record that are weighing in my mind against the finding of substantial evidence of the defendant’s lack of competence. [¶] Number one: This case has been proceeding for two years. There [have] been numerous, numerous motions filed by defense counsel. At no time was there a doubt declared with respect to the defendant’s competence, which leads me to think that if counsel - - if there was not a doubt declared, that counsel was able to work with the defendant in putting together the defense. [¶] I asked my court reporter to find excerpts out of the transcript where the defendant today was talking extremely rationally about the predicament he was in and how he wanted the case to proceed. This happened both before and after lunch. [¶] He indicated at one point, ‘I wasn’t trying to kidnap nobody. No one was trying to kidnap no one.’ [¶] And then [the prosecutor] indicated that he was, in fact, dismissing the kidnapping counts as part of the plea. [¶] The [defendant has] argued on a number of occasions that he wanted 20 years. This was him speaking, as well as his attorney, but particularly with him speaking he indicated, and I believe this was shortly after lunch, ‘Please, I’ll take 20 years. I really didn’t do nothing. You can see on the video. I really didn’t do nothing, sir.’ [¶] And in a different subject area, and this was, I believe, after lunch, the defendant was very clear about the distinction between how much credit he was going to get... [¶]... [¶] for his time in custody in the county jail versus how much credit he was going to get in his stay in custody in state prison and whether or not there was going to be a difference, which is a fairly sophisticated distinction to make, which I believe that he understands, or understood enough to ask the question. [¶] And there was certainly no prompting on anybody’s part. [¶] There is - - has been a point in which starting maybe an hour ago that [defendant] has started acting, in my mind, in a way that he believes somebody who is mentally incompetent would act. He’s smiling inappropriately. He’s laughing. It happened all of a sudden. [¶] There was a period of time, a point in time during this acting, where he actually stopped for a few minutes and participated in another conversation with the court in a rational manner and then went back to his laughing and kind of moving and jerking his body around in a way that I believe is faking his inability to understand and comprehend what’s happening and cooperate with his attorney. [¶] So that is my feeling at this point. And I’m willing to listen to counsel.”
Thereafter, defense counsel argued that her review of defendant’s school and juvenile records revealed that he had multiple mental problems, including mental retardation. Defendant’s mother also told her that defendant “does go out of his mind, but he comes back.” Defense counsel had Dr. Fairbanks work with defendant to “stabilize him for... trial.” Defense counsel acknowledged that in the two years she had represented defendant she had not previously declared a doubt as to his competence. The prosecutor then noted that defendant had made 30 to 40 appearances before Judge Dabney and other judges and there was no prior indication that he was incompetent. Moreover, defense counsel had announced she was ready for trial without any competency issue being raised. Based upon his discussions with defendant, the prosecutor believed that he fully understood what was occurring. The prosecutor stated: “The court has seen [defendant] is capable of assisting his lawyer in his defense. And he knows the nature and the circumstances, charges. There is not substantial evidence. [¶] And that’s the only issue that the court has before it, is there substantial evidence for this court at this point to accept any declaration of doubt.”
Thereafter, the trial court held: “Okay. I, as I indicated before, do not believe that I have substantial evidence of [defendant’s] lack of competence for all of the different reasons that I’ve explained. [¶] I believe that [defendant] [¶]... [¶] may be slow mentally, that he may have some mental issues. [¶] I thought it was interesting to hear that [defendant] was able to write a beautiful birthday card [referenced by defense counsel] that contains text and not just the signing of his name. [¶] I agree that he probably has a problem with focusing. But for all of the different reasons that I have already described and understanding my discretion in this matter, I do not find that there is substantial evidence of his lack of competence. And as a result, we are going to proceed to trial.” Trial was set to commence the following day.
However, before the proceedings adjourned, defendant again inquired about his presentence credits. Thereafter, he stated: “Come on. I want to go.” The prosecutor responded, “You want to take the plea?” Defendant responded, “Yeah.” The prosecutor told defendant that they were there for purposes of a trial. The prosecutor asked if he should go through all the rights. The trial court stated, “We’re going to go through it one time, sir, from the beginning.” The prosecutor read defendant his rights. Defendant answered that he understood those rights. The prosecutor repeated the 24-year prison term in exchange for the no contest plea as to two counts of robbery and admission to the two section 12022.53, subdivision (b) allegations and the consequences of the commission of a subsequent offense. When asked if anyone threatened or coerced him regarding the plea, defendant responded, “Yeah.” Defense counsel told defendant, “It’s a no.” Defendant then said, “No.” Defendant said he was entering the plea freely and voluntarily. However, when asked if he had any questions to ask of the court, the prosecutor, or his attorney, defendant responded: “Oh yes. I got a question. [¶]... [¶] Y’all set me up, huh?” Defendant then asked the prosecutor, the judge and the reporter if they believed in God. When they responded affirmatively, defendant said, “Good bless you all.” The prosecutor then took the plea. Defendant pled no contest to count 2. When asked if he admitted the section 12022.53, subdivision (b) allegation, defendant responded: “Y’all know I had no gun. I admit, though.” Defendant also pled no contest to the count 9 robbery and admitted the related section 12022.53, subdivision (b) allegation. Counsel refused to stipulate to a factual basis for the plea. The trial court asked defendant if he was making this decision because he believed it was in his best interest to do so. Defendant stated: “No. I just believe in God, and I believe whoever judge me be already judged.” The trial court clarified: “Okay. So you’re indicating that this is what you want to do; right?” Defendant responded, “Yes.”
The trial court noted: “All right. I just want to indicate for the record that maybe starting about 10 or 15 minutes ago I was watching [defendant], and he was not doing his inappropriate laughing or smiling. [¶] He seemed to understand exactly what was going on as we were talking about the discovery issues in this case. He leaned back and, as we indicated on the record, spoke with [the prosecutor] about exactly how many credits he was going to get. He understood it exactly when it was calculated what he was going to get. [¶] And I’ve already made my findings earlier when we talked about a potential incompetency hearing. [¶] I do feel having heard you questioned about your constitutional rights and having heard you answer those questions that you have expressly, knowingly, understandingly and intelligently waived your constitutional rights. [¶] I find that your plea was freely and voluntarily made with a full understanding of its nature and consequences, and I find a factual basis for the plea in the arrest reports. [¶] The court accepts your plea, and you are convicted on it.”
After discussions regarding parole consequences and restitution fees, defendant indicated he wanted to waive time for sentencing, “because I want to get married to my girl.” The court again noted that defendant appeared to be “totally understanding everything that I’m – that we’re talking about. Right.” Defendant responded: “Yes. But, you know, a young man trying to get 24 years take my life away, come on now. You want me to understand? You want me to take it? Prison is scary. I’m supposed - - how am I supposed to take going to prison? Prison is real scary.” The court asked, “Did you kind of fake being a little - - ” Defendant said, “No, I ain’t faking. I just don’t care. I just wanted to get - - I don’t know. I just wanted to - -” Defendant indicated that he could not get married in the county jail, but could do so in court. Defense counsel indicated that she wanted to file a sentencing memorandum to send with defendant to the Department of Corrections. Sentencing was set for September 26, 2008.
C. Competency Determination
On September 28, 2008, defense counsel filed a motion to withdraw the plea and for hearing on defendant’s competency to enter a plea. On October 15, 2008, defendant’s Marsden motion was denied. During the Marsden hearing, defendant argued that his attorney did not communicate with him regarding various issues and did not provide him with copies of documents and videotape evidence. The trial court noted that defense counsel had been practicing law for 32 years. Defense counsel had represented defendant for two years in this matter. Defense counsel had diligently prepared for trial in this case. Defense counsel had some difficulty to get through to defendant because of his concrete thinking. Defense counsel indicated that she had discussed the settlement offer with defendant prior to his appearance and plea.
We granted respondent’s request for a copy of the hearing on December 14, 2009.
On November 17, 2008, the trial court indicated that it had reviewed the report of Dr. Fairbanks in which he indicated that defendant was not competent to stand trial. The trial court suspended criminal proceedings pursuant to section 1368 and appointed Dr. Ronald Fairbanks as an expert. The trial court further indicated it would ask for a second opinion from Dr. Kaushal Sharma as the court’s expert so that he could review the transcript of the Marsden hearing in preparing his report on the issue of defendant’s competency. Defendant waived his right to a jury trial on the competency issue.
Dr. Sharma interviewed defendant on two occasions and reviewed: the transcripts of the hearings of September 15 and October 15, 2008; the preliminary hearing transcript; the felony Information; police reports; DVD and CD disks involving defendant’s confession and photographs of the crime scene; a psychological addendum report prepared by Dr. Fairbanks; and various social records provided by Dr. Fairbanks. Dr. Sharma concluded that defendant was not suffering from any identifiable mental disorder like schizophrenia, bipolar disorder, or depression. Dr. Sharma indicated that although defendant may be suffering from a mild mental retardation, he “is able to understand the nature and purpose of the proceedings and is able to rationally cooperate with counsel. I believe the defendant is competent to stand trial.”
Following several continuances, the proceedings again commenced on February 19, 2009. At that time, the attorneys submitted on the doctors’ reports. The trial court indicated it would review the video of the crime scene and the tape recording of defendant’s statement to the police. The competency hearing was conducted on March 13, 2009. At that time, the trial court heard argument from defense counsel and the prosecutor. The trial court noted it had reviewed: defense counsel’s September 28, 2008 motion for a competency hearing and its supporting attachments; defense counsel’s March 9, 2009 supplemental motion and attachments; the prosecutor’s March 6, 2009 brief and attachments; transcripts of the September 15, 2008 plea proceedings and the October 15, 2008 Marsden hearing; the July 3, 2008 and September 5, 2008 transcripts of other courtrooms; Dr. Fairbanks’ September 15, 2008 and December 17, 2008 reports; Dr. Sharma’s January 29, 2009 report; the CD’s of the Center Market robbery and defendants May 17, 2006 police interview; and materials supplied to the appointed psychiatrists. The trial court noted Dr. Fairbanks concluded that although defendant’s verbal communication during the plea sounded knowledgeable but amounted to “masking” or an attempt to appear brighter than he was based on conversations with cell mates and family. On the other hand, Dr. Sharma believed the transcripts documented defendant’s ability to understand the proceedings and his disruptive or uncooperative behavior was due to his antisocial personality. The trial court noted that the defense has the burden to prove incompetency for both a plea and to stand trial by a preponderance of the evidence.
The trial court concluded: “This court believes that the defense has not met the burden to show incompetency by a preponderance of the evidence and thus finds [defendant] to be competent. [¶] I find that he does understand the nature and the - - and did understand at the time of the plea the nature and purposes of the proceedings, that he did comprehend his own status and condition In reference to such proceedings, and that he did assist his attorney in conducting his defense. [¶] I further find that he was able to make a reasoned choice among alternatives available to him at the time of the plea. [¶] So I base my finding on a number of different factors. [¶] Number one: [Defendant] was represented by one attorney, Patsy Myers, throughout the proceedings over a period of more than two years. Many motions were filed prior to the date of the trial. Many efforts were made by defense counsel to delay the proceedings. Not once in dozens of court appearances did trial counsel state to the court that she was having trouble working with [defendant], that he may be mentally ill or mentally retarded. [¶] It was only after the case was finally sent out for trial, a jury was ordered and the trial about to begin, after a final last ditch motion to continue by the defense, that Ms. Myers brought up these concerns for the first time. [¶] Number two: The defense evidence in the form of Dr. Fairbanks’s reports is not compelling to me. [¶] Dr. Fairbanks acknowledges that [defendant’s] statements and behavior in court would lead one to find him competent. However, he disregards [defendant’s] in-court statements based upon a new, a last interview of [defendant] in which [defendant] had every tactical reason to appear lost and incapable of answering simple questions. [¶] Dr. Fairbanks does not indicate in his report that he reviewed the CD of the robbery, slash, shooting at Center Market or the interview of [defendant] by Hawthorne detectives. And I find that that is an important omission. [¶] And the reason is that a review of these CD’s by the court provides an unfiltered lens in which to view [defendant’s] functioning outside a court setting and outside potential influence by family and cell mates. [¶] Unlike [defendant’s] recent court appearances in which he frequently repeats feeling lost and not able to understand anything, each of these CD’s shows a directed, centered, functional individual who is doing what is necessary at that moment in his life in the robbery CD aiding his cousin and during the interview with the detectives, minimizing his involvement and urging that the detectives focus their inquiry on the other guy, the main culprit, his cousin. [¶] During the robbery shooting, [defendant’s] movements were purposeful and logical. He arrived at the moment, at the exact moment during which he would be more helpful to cover his cousin as his cousin covered the proprietor. [¶] He stood at a logical spot. He pulled his hoodie over his head and face at a logical moment to avoid eyewitness by witnesses and possible a camera. [¶] In other words, he did everything an accomplice to a robbery logically would do. [¶] His statements to the detectives were also quite revealing. The lengthy interview did not show any evidence of mental impairments. [Defendant’s] statements were well organized, and he offered a complicated chronological summary of his day. [¶] There were no mental gaps. He never blanked out. There was no evidence of confusion. [Defendant] never said he was lost to the detectives. He deflected responsibility from himself to his cousin who he described as, quote, unquote, ‘crazy.’ Quote, unquote, ‘I can’t tell him nothing.’ Another quote, ‘I don’t know what he was thinking.’ And quote, ‘I couldn’t believe what he was doing,’ unquote. [¶] [Defendant] appeared savvy, cunning and even once referred to himself as smart. [¶] The fact that Dr. Fairbanks never viewed these events and thus didn’t have an opportunity to compare and contrast [defendant’s] demeanor in these CD’s with his demeanor during his interview or in court to me lessens the value of Dr. Fairbanks’s opinions in this court regarding [defendant’s] competency. [¶] Dr. Fairbanks was unfamiliar with very strong factual circumstantial evidence as to [defendant’s] competency. [¶] In fact, this court believes it is more likely that [defendant] has been coached by his family and cell mates to exaggerate mental retardation or illness rather than to exaggerate being smart and competent. [¶] Number three: The People produced evidence in the form of the report of Dr. Sharma as well as out of the defendant’s own mouth that contradicted the defense position. [¶] While Dr. Sharma did spend less face time than Dr. Fairbanks with [defendant], he did interview [defendant] on two occasions and did consider more facts than Dr. Fairbanks. [¶] Dr. Sharma did read a summary of the crime itself as well as the defendant’s statements to the detectives and came to the conclusion that while [defendant’s] intellectual functioning is probably less than normal and that he may be mildly mentally retarded, he suffers from no mental disorder and is able to understand the nature and purpose of the proceedings and to cooperate rationally with counsel. [¶] He states in his reasoning that [defendant] was interacting with the court in his plea until he came to the final waiver of rights. And then he told the bailiff, ‘I’m not going out without a fight. They’re trying to give me 24 years.’ [¶] He also places significant weight on [defendant’s] interactions with the police after the crime as well as his actions during the crime, and indicate that they demonstrate competency. [¶] Dr. Sharma’s observations dovetail with the court’s own observations, which lead me to point number four. [¶] The court’s own observation of the defendant’s statements during the plea lead the court to believe that [defendant] understood his case extremely well and was able not only to assist his counsel but to advocate for himself with the prosecutor in trying to reduce his exposure as well as explain his version of the facts. [¶] There were a number of interactions during the taking of the plea that this court considers significant. And [the prosecutor] has gone through several of them, but I am going to do it again because that - - I want to indicate that I also found a number of these interactions significant. [¶] The District Attorney, as he noted, had suggested apparently to defense counsel, at least that was somewhere where I read, possibly in the declaration by [defense counsel], that his office would accept somewhere in the neighborhood of 21 to 24 years. [¶] And then [defense counsel] said, after speaking to her client, ‘[Defendant] will take 15 years right now.’ [¶] When the [prosecutor] said that would not be possible, [defendant] came back with, ‘My lawyer is saying she came back and said 20 years.’ [¶] The defendant was telling the court that his attorney at one time had informed him in the jail holding cell or at the jail that he could get 20 years, which is one year less than what he understood the [prosecutor] to be actually offering, which was 21 to 24 according to [defense counsel] in her declaration. [¶] Shortly afterwards, he said, quote ‘Please. I’ll take 20 years, just 20. I really didn’t do nothing, sir. You can see on the video. I really didn’t do nothing, sir,’ unquote.”
The trial court then went through the plea discussions wherein defendant: said he had not tried to kidnap anyone; questioned which robberies formed the basis of the plea; indicated he did not have a record or strikes; spoke of other jail inmates who received a shorter or concurrent sentence; requested that the prosecutor speak to his supervisor; inquired about credits for the two years served; stated “I plead to all of that. It’s a wrap”; and, continued to inquire about his credits during the plea.
The trial court noted that defendant’s behavior became inconsistent toward the end of the plea: “In this court’s opinion he was acting in a way that was feigning being unstable or, quote, unquote, crazy. He began laughing, shaking his head, repeating ‘24 years’ over and over. And it was at that point his attorney claimed that she had an oral report only from Dr. Fairbanks that her client was not competent that she had not reduced to writing.” The trial court noted that when the direction then shifted to trial commencing, defendant again stated he wanted to be sentenced. The trial court observed that defendant made several statements reflecting an understanding of the nature of the proceedings regarding the admission of gun use, restitution, and waiving time for sentencing in order to get married. When the trial court inquired whether he understood everything, defendant had responded: “Yes. But, you know, a young man trying to get 24 years, take my life away, come on now. You want me to understand? You want me to take it? Prison is scary.” The trial court noted that the lock-up deputy observed defendant’s behavior had been erratic after the first attempt to take the plea but he seemed normal in the lock-up area and said, “I’m not going out without a fight. They’re trying to give me 24 years.”
The trial court concluded: “[Defendant’s] statements to the court as well as to Deputy Chea reveal that [defendant] was understandably frightened and upset at the thought of spending 24 years in prison. He’s not going to go down without a fight and that acting, quote, unquote, crazy was a tool in his arsenal that he was willing to try out in order to stall the proceedings. [¶] What this court considers very significant is that it should be noted that not once in any other court appearance nor any [of] defendant’s many interviews with Dr. Fairbanks, Dr. Sharma, or the detectives was he - - or his school records was he ever reported to have acted in the bizarre and kind of manic and wild manner that he exhibited during this short court episode. [¶] There was no documentation in any of the voluminous records and testing throughout his life that he ever acted out in that manner that he did in court. [¶] So this reinforces the court’s view that [defendant] was consciously faking what he hoped would be interpreted as mental illness during the first aborted taking of the plea. [¶] So to reiterate, for the reason that I have described and after evaluating the totality of the circumstances, this court finds that at the time of the plea [defendant] was able to understand the nature and purpose of the proceedings. He was able to comprehend his status and condition in reference to such proceedings. He was able to assist his attorney in the conduct of his defense. [¶] And the defense has not proven by a preponderance of the evidence that [defendant] was incompetent at the time of the entry of the plea or at any other time during the proceedings.”
D. Motion to Withdraw Plea
Thereafter the trial court considered defendant’s motion to withdraw his plea. Defense counsel advised the court that she felt there was a conflict between herself and defendant which indicated she was incompetent. The trial court noted that there was no evidence of either incompetency on the part of defense counsel or conflict that would delay the plea withdrawal motion. The trial court reviewed the issues raised in the motion. In denying the motion, the trial court held that no clear and convincing evidence of good cause to withdraw the plea had been introduced. The trial court held: “This case was not rushed to trial. There were multiple motions that were filed and heard. Defense counsel actually announced ready for trial in transcripts or agreed to have cases - - the case sent out for trial on July 3rd, 2008, and September 5th, 2008.” The trial court noted defendant’s special needs did not render him incompetent as evidenced by his negotiations with the district attorney on the record and the fact that he made an informed decision to accept the disposition.
E. Sentencing
When the trial court proceeded to sentence defendant, he refused to acknowledge that he understood the sentence, blamed his attorney, and swore at the prosecutor.
III. DISCUSSION
A. The Trial Court Properly Accepted Defendant’s Plea and Properly Denied Defendant’s Motion to Withdraw the Plea
Defendant argues the trial court erred in accepting his plea and in denying his motion to withdraw his plea. Defendant argued in the trial court that his plea was the result of coercion since he was forced to choose between going to trial and facing a life sentence or taking an “offer he could not refuse” involving a lesser sentence. On appeal he further alleges that the court and prosecutor misrepresented state prison times to him. He claims these errors made his plea involuntary and the court should have granted his motion to withdraw his plea.
He also alleges on appeal that his responses to the court and prosecutor during the plea process were not knowing and intelligent. This issue was not raised at the motion to withdraw the plea hearing. Rather, it was part of the initial discussions about the competency of the defendant and was decided against defendant. The court found the defendant was faking confusion and trying to derail the proceedings and delay a plea or trial. We have reviewed the record and under any applicable standard of proof, that record supports the conclusion that defendant’s plea and waiver were knowing and intelligent.
We review an order denying a motion to withdraw a guilty plea for an abuse of discretion. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254; In re Brown (1973) 9 Cal.3d 679, 685, overruled on another point in People v. Mendez (1999) 19 Cal.4th 1084, 1091, fn. 7.) If substantial evidence supports the trial court’s order denying a motion to withdraw a guilty plea, that decision must be upheld on appeal. (People v. Fairbank, supra, 16 Cal.4th at p. 1254; People v. Ravaux (2006) 142 Cal.App.4th 914, 917-918; People v. Quesada (1991) 230 Cal.App.3d 525, 533.) Section 1018 permits the withdrawal of a plea where a defendant shows good cause by clear and convincing evidence. (People v. Fairbank, supra, 16 Cal.4th at p. 1254; People v. Wharton (1991) 53 Cal.3d 522, 585; People v. Cruz (1974) 12 Cal.3d 562, 566; People v. Ramirez (2006) 141 Cal.App.4th 1501, 1505-1506; In re Vargas (2000) 83 Cal.App.4th 1125, 1142.) Our colleagues in the Court of Appeal for the Fourth Appellate District have held: “‘To establish good cause, it must be shown that defendant was operating under mistake, ignorance, or any other factor overcoming the exercise of his free judgment. [Citations.] Other factors overcoming defendant’s free judgment include inadvertence, fraud or duress. [Citations.]’ (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.) ‘The burden is on the defendant to present clear and convincing evidence the ends of justice would be subserved by permitting a change of plea to not guilty.’ (People v. Shaw (1998) 64 Cal.App.4th 492, 496.)” (People v. Weaver (2004) 118 Cal.App.4th 131, 145-146; see also People v. Sandoval (2006) 140 Cal.App.4th 111, 123.)
Section 1018 provides in pertinent part: “On application of the defendant at any time before judgment... the court may... for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted.”
Initially, we note that the motion to withdraw presented to the trial court did not raise an issue as to misrepresentation of prison terms, and our review of the record leads us to conclude that the court made it clear and defendant understood he would be sentenced to 24 years in state prison. He would have preferred 15 or 20 years, and made that clear, but after being told it would be no less than 24 years, defendant agreed to that term. We thus hold that, even though not raised in the motion to withdraw the plea at trial, defendant’s contention on appeal that he was misled about the 24-year prison term is without factual support or merit.
Indeed, the record shows that the trial court explained to defendant: “So basically what they’re saying is that if you had a court trial, the maximum sentence you would receive is life, depending upon how many incidents, could be multiple terms of life. But there would be ultimately the possibility of parole, although there would not be a particular date because you would have to go before a parole board that would ultimately set the date. And I have absolutely no idea how long they would keep you. [¶] And the third alternative, as we’ve discussed, is having a jury trial. The maximum is life without the possibility of parole.” Defendant’s request that he instead be sentenced to 15 years, and then his request to be sentenced to 20, were met with explanations by the prosecutor that he faced either life without parole or multiple life sentences. “What I’m trying to tell you is if we’re at 15, and I offer 24, you’re only doing 18 with time served. So we’re not talking about a lot of time. And your risk, if you do go to trial, is life. Okay?” Thus, the prosecutor’s explanation was that 15 or 20 years versus 24 amounted to only a few years in practical effect in comparison to the potential life sentence if he were found guilty by the court or a jury. Nothing in the record indicates defendant was misled or misinformed.
Defendant’s argument that he was subjected to pressure in having to decide whether to enter a plea immediately or go to trial is also meritless. Plea negotiations began at the July 9, 2008 appearance, when the prosecutor offered a single life count with the possibility of parole. On September 15, 2008, the case was in court for trial after several continuances and announcements of readiness by defense counsel. A jury pool was waiting to be sent to the courtroom. At 11:30 a.m. the trial court reviewed: the 24-year offer and defendant’s potential release at age 40; the alternative court trial where the prosecutor would not seek life without the possibility of parole; and the possibility of a jury trial. Defendant indicated that he wanted to speak to his attorney further. Following a recess, defendant indicated he would take 15 years. The prosecutor said he could go no lower, having convinced his supervisor to reduce the term from 27 to 24 years. The prosecutor indicated that he had spent a significant amount of time the previous week with defense counsel discussing the details of the offer both in person and by phone. After further explanation of the 24-year offer, defense counsel again consulted with defendant. Defendant then stated, “Please, I’ll take 20 years. Just 20. I really didn’t do nothing, sir. You can see on the video. I didn’t really do nothing, sir.” The prosecutor explained that he could go no lower based on his discussions with his supervisor. When defendant stated he had not tried to kidnap anyone, the prosecutor explained he would dismiss the kidnapping charge with only two robbery charges remaining. Defendant inquired, “What robbery is that?” When the prosecutor indicated it would be the Friendly Market robbery, defendant again asked for clarification, “Just for robberies?” Defendant stated that he knew people who were sentenced concurrently to 12, 13 or 15 years and indicated he had no strikes. Defense counsel was then allowed to speak further with defendant during the lunch hour. Defendant spoke with defense counsel, his mother and girlfriend. Following that discussion, defendant returned to court and indicated he wanted to enter a plea. Defendant was then advised of his constitutional rights. Defendant continued to ask relevant questions. When the plea was almost complete, defendant began demonstrating bizarre behavior. Another recess was taken to allow defense counsel to speak with defendant. Thereafter discussions regarding his competency continued past 3:30 pm. At that time, the trial court indicated defendant’s trial would commence the following day. Following discussions regarding discovery and witnesses, defendant again indicated he wanted to go forward with the plea. During the plea, defendant indicated he was entering the plea freely and voluntarily. It is clear defendant was under no undue time pressure or any other pressure that would constitute coercion to enter his plea.
As set forth in detail above, the transcript of the plea proceedings, taken as a whole, revealed that defendant: actively engaged in plea negotiations; insisted upon knowing his custody credits as well as his potential for further credits once in prison; recited the terms imposed on other jail inmates, including concurrent terms; denied having kidnapped or an intent to kidnap the victims; indicated he had no prior “strikes”; and understood his rights and understood the sentence The record demonstrates that defendant’s plea was knowingly and intelligently made under the totality of the circumstances. (Hill v. Lockhart (1985) 474 U.S. 52, 56; People v. Wash (1993) 6 Cal.4th 215, 269; People v. Howard (1992) 1 Cal.4th 1132, 1177-1178, 1180.) Thus, the trial court properly denied defendant’s motion to withdraw his plea. For the same reasons already discussed, the court properly accepted the pleas and admissions, and this is true whether we use an abuse of discretion test or consider the voluntariness of the pleas and admissions de novo as suggested by defendant.
B. The Factual Basis for the Plea
1. Factual and procedural background
Defendant argues that the trial court improperly accepted the “no contest” plea without a sufficient factual basis for the plea. At the time the plea was taken, the following colloquy occurred: “[Prosecutor]: In case number SA061220, let’s start with count 2, a violation of Penal Code section 211, to that charge, sir, how do you plead? [¶] [The Court]: Guilty, not guilty or no contest? [¶] [Defendant]: No contest. [¶] [Prosecutor]: And as to the 12022.53(b) allegation as charged, the use of the weapon, do you admit or deny that, sir? [¶]... [¶] [Defendant]: Y’all know I had no gun. I admit, though. [¶] [Prosecutor]: As to count 9, a violation of Penal Code section 211, to that charge, sir, how do you plead? [¶]... [¶] For robbery. [¶] [Defense counsel]: Robbery at Baskin Robbins. [¶] [Defendant]: Oh, yes. [¶] [The Court]: He said ‘Yes’ rather than - - [¶] [Prosecutor]: Do you plead no contest, sir? [¶] [Defendant]: No. I guess. [¶] [Defense counsel]: No contest. [¶] [Defendant]: No contest. Whatever. [¶] [Prosecutor]: And as to the 12022.53(b) allegation, to that charge, sir, how do you plead? [¶] [Defendant]: Yes. Yes. [¶] [The Court]: Do you admit or deny the use of a gun in that - - Baskin Robbins? [¶] [Defendant]: I deny it. [¶] [Defense counsel]: You have to admit it to get the plea. [Defendant]: Yes. [¶] [Prosecutor]: You what? [¶] [Defendant]: Yes. [¶] [Prosecutor]: Yes, you admit it? [¶] [Defendant]: Yes. [¶] [Prosecutor]: Okay. Counsel stipulate to a factual basis, based on the police reports and the preliminary hearing transcript, join in the plea and concur in the waivers? [¶] [Defendant]: Yes. [¶] [Defense counsel]: I believe this is People versus Alfred plea, and I do not join in the plea. This is his decision. [¶] [The Court]: You’re making this decision, sir, because you believe this is in your best interest to do this? [¶] [Defendant]: No. I just believe in God, and I believe whoever judge me be already judged. [¶] [The Court]: Okay. So you’re indicating that this is what you want to do; right? [¶] [Defendant]: Yes.”
Thereafter, as set forth above, the trial court noted that defendant’s behavior had changed over the previous 10 to 15 minutes. Defendant appeared to “understand exactly what was going on.” The court continued: “I do feel having heard you questioned about your constitutional rights and having heard you answer those questions that you have expressly, knowingly, understandingly and intelligently waived your constitutional rights. [¶] I find that your plea was freely and voluntarily made with a full understanding of its nature and consequences, and I find a factual basis for the plea in the arrest reports. [¶] The court accepts your plea, and you are convicted on it.”
2. The trial court determined a factual basis for the plea
Our Supreme Court has held: “Before accepting a guilty or no contest plea pursuant to a plea agreement in a felony case, the trial court is required to determine that a factual basis for the plea exists. (§ 1192.5; People v. Holmes (2004) 32 Cal.4th 432, 440-442.) ‘The purpose of the requirement is to protect against the situation where the defendant, although he realizes what he has done, is not sufficiently skilled in law to recognize that his acts do not constitute the offense with which he is charged. [Citation.] Inquiry into the factual basis for the plea ensures that the defendant actually committed a crime at least as serious as the one to which he is willing to plead.’ (People v. Watts (1977) 67 Cal.App.3d 173, 178.) A defendant is not required to personally admit the truth of the factual basis of the plea, which may be established by defense counsel’s stipulation to a particular document, such as a police report or a preliminary hearing transcript. (People v. Holmes, supra, 32 Cal.4th at p. 436.)” (People v. French (2008) 43 Cal.4th 36, 50-51.) We review the trial court’s finding that there is a factual basis for the plea for an abuse of discretion. (People v. Holmes, supra, 32 Cal.4th at pp. 442-443; People v. Willard (2007) 154 Cal.App.4th 1329, 1333.)
Defendant argues that the trial court abused its discretion by: finding a factual basis for the plea in the arrest reports; failing to ask defendant whether he had committed the acts described in the complaint; and finding a factual basis in spite of defense counsel’s refused to stipulate to a factual basis. Defendant cites to the record, noting the trial court twice indicated that it knew nothing about the facts of the case. However, the referenced statements occurred at 11:30 a.m. at the beginning of the proceedings. The plea discussions, competency claims, and trial discovery exchanges continued throughout the day until the plea was taken well after 3:30 p.m. During that time, the trial court made reference to the fact that she had the amended Information in her file, which would be used for the plea. The trial court also took a recess to review authorities on the issue of defendant’s competency. When she returned to the bench, Judge Mader noted: “This case has been proceeding for two years. There [have] been numerous, numerous motions filed by defense counsel.” During the discovery discussions, defense counsel referenced a security camera “slide show” during the count 2 robbery which formed the basis of the kidnap for ransom and provocative act murder charges. Defense counsel also made references to police reports as they related to witnesses she intended to call at trial. The trial court therefore had ample opportunity to review and did review the record during the various proceedings and recesses, which lasted for four hours.
Defendant further argues that the Baskin-Robbins robbery as set forth in count 9 of the Information was not substantiated by the record. The victim of that robbery, Imelda Gonzalez, testified at the preliminary hearing. Count 9 alleged the victim was Imelda Roldan. Defendant argues that the record does not establish that this was the same woman. Defendant concludes that there was no evidence to establish a factual basis for this robbery. We disagree. Ms. Gonzalez testified that Mariela Martinez was the other individual working at the Baskin Robbins at the time of the robbery. Ms. Martinez was the victim named in count 8 of the Information. A factual basis was established through Ms. Gonzalez’s own testimony that she was, in fact, the same “Imelda,” who was named as the other victim of the Baskin Robbins robbery of July 26, 2006. Defendant himself indicated during the plea proceedings he was pleading to one of the Baskin-Robbins store robbery counts. And defendant personally stipulated on the record there was a factual basis for the plea. His attorney did not stipulate, indicating she was not joining in the plea.
In People v. Holmes, supra, 32 Cal.4th at p. 443, our Supreme Court held: “[A] trial court possesses wide discretion in determining whether a sufficient factual basis exists for a guilty plea. The trial court’s acceptance of the guilty plea, after pursuing an inquiry to satisfy itself that there is a factual basis for the plea, will be reversed only for abuse of discretion. [Citation.] A finding of error under this standard will qualify as harmless where the contents of the record support a finding of a factual basis for the conditional plea. [Citation.]” (See People v. Marlin (2004) 124 Cal.App.4th 559, 572 [“The trial court need not obtain an element-by-element factual basis but need only obtain a prima facie factual basis for the plea. [Citations.]”]; People v. Mickens (1995) 38 Cal.App.4th 1557, 1564; People v. Watts, supra, 67 Cal.App.3d at pp. 180, 182.) Here, the trial court could properly find a prima facie factual basis for the plea based upon defendant’s affirmative acknowledgement to the prosecutor’s inquiry as to a stipulation of a factual basis based on the police reports and preliminary hearing transcript. In the alternative, the Information and preliminary hearing transcript in the trial court’s possession during the extensive plea proceedings established a factual basis for the plea. As a result, any error would have to be considered harmless. (People v. Holmes, supra, 32 Cal.4th at p. 443; People v. Marlin, supra, 124 Cal.App.4th at p. 572.)
C. The Trial Court’s Refusal to Suspend Criminal Proceedings
Defendant argues that the trial court deprived him of his federal due process right to a fair trial by failing to suspend the plea proceedings to hold a competency hearing. Our Supreme Court has determined: “A defendant is mentally 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.’ (§ 1367, subd. (a).) The defendant has the burden of proving incompetency by a preponderance of the evidence. (§ 1369, subd. (f); People v. Medina (1990) 51 Cal.3d 870, 881-886.)” (People v. Marshall (1997) 15 Cal.4th 1, 31; see also Medina v. California (1992) 505 U.S. 437, 449-452; People v. Welch (1999) 20 Cal.4th 701, 737.) The California Supreme Court has further held: “‘When the accused presents substantial evidence of incompetence, due process requires that the trial court conduct a full competency hearing. [Citations.] “Evidence is ‘substantial’ if it raises a reasonable doubt about the defendant’s competence to stand trial.” [Citations.]’” (People v. Koontz (2002) 27 Cal.4th 1041, 1063-1064, quoting People v. Lawley (2002) 27 Cal.4th 102, 131.) We review a decision not to declare a doubt as to the accused’s competency for an abuse of discretion. (People v. Ramos (2004) 34 Cal.4th 494, 507; People v. Welch, supra, 20 Cal.4th at p. 740.) The Supreme Court has repeatedly held: “Reviewing courts give great deference to a trial court’s decision whether to hold a competency hearing. ‘“‘An appellate court is in no position to appraise a defendant’s conduct in the trial court as indicating insanity, a calculated attempt to feign insanity and delay the proceedings, or sheer temper.’”’ (People v. Marks (2003) 31 Cal.4th 197, 220, quoting People v. Marshall, supra, 15 Cal.4th at p. 33; People v. Danielson (1992) 3 Cal.4th 691, 727, overruled on another point in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) “A defendant is presumed competent unless it is proved otherwise by a preponderance of the evidence. (§ 1360, subd. (f).)” (People v. Ramos, supra, 34 Cal.4th at p. 507.)
As set forth above, defendant did not begin his bizarre behavior until the plea was almost complete. Defense counsel then noted that defendant had “serious learning disabilities”, “a mental retardation issue” and “the ability of an 11-year-old.” The trial court noted that defense counsel had two years to investigate defendant’s competency. Thereafter, counsel was allowed to speak with defendant for 10 or 15 minutes. When defense counsel asked that they set aside the waivers based on defendant’s incompetency, the trial court noted that defendant had been very coherent in his negotiations with the prosecutor earlier that day. The trial court indicated that it appeared that once defendant realized the enormity of the decision he began to act out in a way that was inconsistent with his earlier demeanor. The trial court took a recess to research the competency issue. When the proceedings resumed, the trial court quoted from People v. Ramos, supra, 34 Cal.4th 494 regarding the “substantial evidence” requirement. The trial court then noted there was no doubt declared in the two years this case was pending, which led her to believe that counsel was working with defendant in putting together a defense. The trial court indicated that various excerpts from the day’s transcript demonstrated that defendant spoke “extremely rationally about the predicament he was in and how he wanted the case to proceed.” Defendant argued several times that he wanted 20 years and made the distinction between his pre and post-sentence credits. The trial court noted that defendant began acting in a way he believed someone who is mentally incompetent would act, but periodically participated in rational conversation with the court.
After hearing argument from the prosecutor and defense counsel, the trial court held: “[F]or all the different reasons that I have already described and understanding my discretion in this matter, I do not find that there is substantial evidence of his lack of competence.” Moreover, defendant’s rather bizarre statements and ramblings were not necessarily indicative of his inability to understand or cooperate in his defense. (See People v. Ramos, supra, 34 Cal.4th at p. 509; People v. Koontz, supra, 27 Cal.4th at p. 1064; People v. Welch, supra, 20 Cal.4th at p. 742; People v. Medina (1995) 11 Cal.4th 694, 735 [“more is required to raise a doubt of competence than the defendant’s mere bizarre actions or statements”]; People v. Danielson, supra, 3 Cal.4th at p. 727 [same.) Moreover, the California Supreme Court has held that “‘statements of defense counsel that defendant is incapable of cooperating in his defense’” alone do not raise a doubt about his competence. (People v. Welch, supra, 20 Cal.4th at p. 742, quoting People v. Laudermilk (1967) 67 Cal.2d 272, 285.) In People v. Marks, supra, 31 Cal.4th at p. 221, fn. 4, counsel argued that the defendant was frequently nonresponsive to questions posed. The trial court found: “defendant strategically ignored the limited scope of questions and aggressively presented to the jury material that would either tend to raise a doubt about his guilt or engender sympathy for him.” The Marks court held: “Defendant also demonstrated his ability to offer assistance to counsel, even if such assistance was neither solicited nor welcomed.” (Id. at p. 221.) The same is true in this case. The trial court was in the best position to evaluate whether defendant’s behavior suggested he understood the nature of the proceedings and had the ability to assist in his defense. The trial court did not abuse its discretion in refusing to order a competency hearing.
D. Burden of Proof at Competency Hearing
1. Waiver
Defendant argues that the trial court improperly placed the burden of proof on him at the competency hearing after his nolo contendere plea, thereby denying his federal constitutional due process right to a fair trial. Preliminarily, this contention was not the basis of an objection in the trial court and thus is the subject of waiver, forfeiture, and procedural default. (United States v. Olano (1993) 507 U.S. 725, 731; People v. Panah (2005) 35 Cal.4th 395, 436; People v. Williams (1997) 16 Cal.4th 153, 250.) At the commencement of the competency hearing, the trial court stated, “So the burden of proof in a hearing with respect to competency is on the defense.” Defense counsel proceeded with argument without objecting to the burden of proof.
2. The trial court properly determined the burden of proof of competency lies with defendant
Notwithstanding that waiver, we hold the relevant statutes and both state and federal case law support the trial court’s determination that defendant has the burden of proof in all competency hearings. We acknowledge that this issue is currently pending before the California Supreme Court in People v. Ary, review granted July 29, 2009, S173309. In the initial appeal in that case, our colleagues in the Court of Appeal for the First Appellate District held that the defendant was denied due process because the trial court did not, on its own motion, order a competency hearing pursuant to section 1368. The court remanded the matter with directions to determine whether a retrospective competency hearing could be held and, if so, to hold it. The court placed the burden on the prosecution to determine if a retrospective competency hearing was feasible, but did not state which party bore the burden of proof in such a hearing. (Id. at pp. 1029-1030.) On remand the competency hearing was found feasible. A competency hearing was held with the burden on the defendant to establish incompetency. Following a finding that he was competent, defendant appealed, arguing the prosecution should have had the burden to prove his competency. Again, our colleagues in the Court of Appeal for the First Appellate District held in their opinion that was vacated upon grant of review by the Supreme Court, that the burden at a retrospective competency hearing lies with the prosecution. We respectfully disagree.
Here, defendant acknowledges that section 1369, subdivision (f) related to a defendant’s competence states in part, “It shall be presumed that the defendant is mentally competent unless it is proved by a preponderance of the evidence that the defendant is mentally incompetent.” Section 1369, subdivision (b)(1) states, “The counsel for the defendant shall offer evidence in support of the allegation of mental competence.” However, defendant argues: “Nothing in the statute... suggests that this burden is to be applied when the competency hearing is held six months after the hearing at which competency was declared in doubt.”
We note that defendant’s argument regarding the burden of proof has been addressed by both the United States Supreme Court and the Ninth Circuit Court of Appeals. In Medina v. California, supra, 505 U.S. at pages 451-453, the United States Supreme Court upheld the California Supreme Court decision in People v. Medina, supra, 51 Cal.3d 870, finding: “Petitioner further contends that the burden of proof [in competency proceedings] should be placed on the State because we have allocated the burden to the State on a variety of other issues that implicate a criminal defendant’s constitutional rights. [Citations.] The decisions upon which petitioner relies, however, do not control the result here, because they involved situations where the government sought to introduce inculpatory evidence obtained by virtue of a waiver of, or in violation of, a defendant’s constitutional rights. In such circumstances, allocating the burden of proof to the government furthers the objective of ‘deterring lawless conduct by police and prosecution.’ [Citation.] No such purpose is served by allocating the burden of proof to the government in a competency hearing. [¶] In light of our determination that the allocation of the burden of proof to the defendant does not offend due process, it is not difficult to dispose of petitioner’s challenge to the presumption of competence imposed by § 1369[, subd.] (f). Under California law, a defendant is required to make a threshold showing of incompetence before a hearing is required.... [¶] In rejecting this contention below, the California Supreme Court observed that ‘the primary significance of the presumption of competence is to place on defendant... the burden of rebutting it’ and that, ‘by its terms, the presumption of competence is one which affects the burden of proof.’ [Citation.] We see no reason to disturb the California Supreme Court’s conclusion that, in essence, the challenged presumption is a restatement of the burden of proof, and it follows from what we have said that the presumption does not violate the Due Process Clause.”
In Moran v. Godinez (9th Cir. 1994) 57 F.3d 690, 697, a post-conviction competency hearing was held three years after the defendant’s guilty plea. The defendant challenged the findings of the post-conviction court arguing that the court incorrectly placed the burden of proof on him to establish his incompetence. Citing to Medina v. California, supra, 505 U.S. 437, the Ninth Circuit held: “Thus, so long as the state provides adequate procedures to assess competence, it constitutionally may assign the burden of proof to the defendant.” (Moran v. Godinez, supra, 57 F.3d at p. 697.) The Ninth Circuit further held that although the post-conviction court violated Nevada law by placing the burden on defendant, no deprivation of a substantive right occurred. The state had provided the defendant with constitutionally adequate procedures to evaluate his competency. (Moran v. Godinez, supra, 57 F.3d at pp. 697-698; see also Rhode v. Olk-Long (8th Cir. 1996) 84 F.3d 284, 288 [burden of proof is on defendant in post-conviction competency hearings]; Commonwealth v. Santiago (2004) 855 A.2d 682, 694 [same].) In this case, no California law requires the prosecution to bear the burden of proof. Defendant was afforded due process by the nature of the constitutionally adequate procedures at his competency hearing.
3. Harmless error
If any error resulted from the decision to place the burden of proof on defendant at the retrospective competency hearing, it was harmless under any standard. (Chapman v. California (1967) 386 U.S. 18, 22; People v. Watson (1956) 46 Cal.2d 818, 836.) The detailed record of both the plea proceedings and the competency hearing provides overwhelming evidence to support the competency finding. As set forth above, Judge Mader repeatedly set forth her observations of defendant’s demeanor, level of understanding, negotiation skills and apparent feigned decomposition during the plea proceedings. Moreover, Judge Mader reviewed the evaluations of the two appointed experts who agreed that defendant might be mildly retarded. After numerous interviews with defendant and review of various documents and transcripts, Dr. Fairbanks concluded that defendant’s mental retardation rendered him incompetent to stand trial. However, Dr. Sharma: interviewed defendant; reviewed videos of defendant’s police interview and the Central Market robbery; reviewed transcripts of the preliminary hearing, plea proceedings, and subsequent competency motion hearings; reviewed social service reports, school records, and dependency and probation reports. Dr. Sharma concluded defendant suffered from no identifiable mental disorder. Dr. Sharma found defendant “able to understand the nature and purpose of the proceedings and is able to rationally cooperate with counsel.” Ultimately, Dr. Sharma found defendant was competent to stand trial. These findings were consistent with the trial court’s own observations, and supported the determination that defendant was competent. Thus, any error was harmless beyond a reasonable doubt.
IV. DISPOSITION
The judgment is affirmed.
We concur: ARMSTRONG, ACTING P. J. MOSK, J.