Opinion
B229310
02-15-2012
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL RAY COSTIDO, Defendant and Appellant.
Patrick Morgan Ford, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Jason C. Tran and Julie A. Harris, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. LA053006)
APPEAL from a judgment of the Superior Court of Los Angeles County, Joseph A. Brandolino, Judge. Affirmed.
Patrick Morgan Ford, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Jason C. Tran and Julie A. Harris, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Michael Ray Costido appeals from a judgment imposed following revocation of his probation. He contends that the trial court violated Penal Code section 1369 in appointing a single psychiatrist after a doubt was declared as to defendant's competence to continue with the sentencing hearing. Defendant also contends the trial court abused its discretion by sentencing him to prison rather than to probation with time in a mental health treatment facility. We disagree and affirm the judgment.
All statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL SUMMARY
Defendant was placed on five years of formal probation after he pled no contest to second degree robbery in 2007. In 2010, his probation was revoked, and a probation revocation hearing was held. The evidence at the hearing was that defendant had failed to regularly report to the probation department and that he had assaulted his landlady with a knife. Defendant testified that he reported to probation every month but had problems with the registration kiosk. He denied having threatened his landlady and claimed that she had made up the assault to protect her disturbed son, who had harassed defendant, had broken into his room, and had vandalized his car. The court found defendant in violation of his probation and continued sentencing on defense counsel's request. Counsel wished to present the court with an alternative to sentencing defendant to prison in light of his mental health history.
At the sentencing hearing, defense counsel advised the court that defendant was upset with counsel's inability to prove that defendant was the victim rather than the aggressor in the incident involving his landlady. Because the investigator had been unable to verify any of defendant's claims, counsel believed defendant was suffering from delusions. Defendant objected that he had witnesses who could have impeached the landlady's testimony, and reiterated that he had not assaulted her. When counsel requested that defendant be sent to a mental health facility rather than to prison, defendant interjected, "I'm an innocent man. I don't need to be in a facility." He insisted that he had not violated his probation, and he explained that he was not "willing to go into a program . . . because, the case I'm on probation for, I didn't do that either."
Counsel then expressed doubt about defendant's competence under section 1368 by stating that defendant was "1368 at this point . . . he cannot cooperate with counsel just because he has such strong beliefs that cannot be verified." In the ensuing discussion, the court took the position that the witnesses at the probation revocation hearing were credible and that defendant refused to cooperate with counsel because he was unwilling to take responsibility for his actions, not because he was incompetent. Defendant interrupted several times: twice to deny touching the knife, once to state that the landlady lied on the stand, and once to ask, "Why did I do something irrational like that, your honor? I lived there." The court was ready to impose a prison sentence when counsel repeated that defendant was 1368 "based on his inability to cooperate with [counsel] consistently through this." The court proceeded to declare a doubt about defendant's competence, suspend the proceedings, and order that defendant be evaluated by a psychiatrist.
The psychiatrist was asked to evaluate defendant's competence to continue with the legal proceedings, including sentencing. He reported that defendant was "severely mentally ill," with a history of bipolar disorder and anxiety but no evidence of psychosis. The psychiatrist concluded that, even though defendant had fixated on the details of his current offense and believed he was "wrongfully convicted," he was competent to continue with the proceedings. The court concluded defendant was competent and sentenced him to five years in prison with a recommendation that he receive mental health treatment at the California Medical Facility in Vacaville, if eligible. Defendant received 801 days of presentence custody credit and was ordered to pay several fines and fees.
This timely appeal followed.
DISCUSSION
I
Defendant contends the court violated section 1369, subdivision (a) by failing to appoint a second psychiatrist or psychologist to ensure that he was competent to proceed.
A mentally incompetent criminal defendant "cannot be tried or adjudged to punishment." (§ 1367, subd. (a).) A defendant is mentally incompetent "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." (Ibid.) When the court's doubt as to a defendant's competence is shared by defense counsel, the court must hold a competence hearing. (§ 1368.) Before such a hearing, the court must appoint "a psychiatrist or licensed psychologist, and any other expert the court may deem appropriate, to examine the defendant." (§ 1369, subd. (a).) "In any case where the defendant or the defendant's counsel informs the court that the defendant is not seeking a finding of mental incompetence, the court shall appoint two psychiatrists, licensed psychologists, or a combination thereof." (§ 1369, subd. (a).) The latter requirement has been deemed to apply in cases where "defendant personally claims he is competent, yet his counsel seeks a finding of incompetence." (People v. Harris (1993) 14 Cal.App.4th 984, 996.)
Defendant acknowledges that he never expressly stated he did not want to be declared incompetent. Nevertheless, he claims it was sufficient that he disagreed on the record with his counsel's suggestion that he was incompetent, and that he convinced the psychiatrist that he was competent. In essence, defendant contends that the trial court should have inferred a claim defendant did not expressly make. The California Supreme Court has repeatedly rejected this contention. The defendant in People v. D'Arcy (2010) 48 Cal.4th 257, 281, argued that the court was required to infer he did not want to be declared incompetent because he sought to present a defense his counsel did not want to pursue. Similarly, the defendant in People v. Lawley (2002) 27 Cal.4th 102, 133, argued that the court should have inferred he did not want to be declared incompetent because he insisted on a court trial, new counsel, or the right to represent himself. The court disagreed because neither defendant nor his counsel had "expressly" informed the court that the defendant was not seeking to be declared incompetent. (People v. D'Arcy, supra, 48 Cal.4th at p. 281; People v. Lawley, supra, 27 Cal.4th at p. 133.)
Here, defendant never expressly stated that he was not seeking a declaration of incompetence. Specifically, defendant did not say anything during the portion of the sentencing hearing when the court asked counsel to confirm that he was seeking a declaration of doubt as to defendant's competence or when the court declared such doubt and suspended the proceedings. Nor does the record indicate that defendant disagreed with his counsel's earlier suggestions that he was mentally ill or incompetent. Although defendant objected to being sent to a mental facility, his expressed reason was not that he believed he was sane or competent, but that he believed he was innocent. Competence cannot necessarily be inferred from a claim of innocence. Defendant's other interjections were attempts to dispute the evidence that he attacked his landlady with a knife. The court was given even less notice that defendant did not want to be declared incompetent. The requirement of appointing more than one mental health expert was not triggered in this case.
Defendant argues that appointing a second mental health expert was required because the psychiatrist who evaluated him incorrectly believed that he already had evaluated defendant's competence to stand trial in an earlier report that instead dealt only with defendant's mental illness and treatment options. This argument is flawed because the statutory requirement of appointing two mental health experts is triggered by defendant's expressed wish not to be declared incompetent rather than by any error in the appointed expert's report. The psychiatrist's incorrect characterization of his earlier report does not appear to be material because, contrary to defendant's representation on appeal, the competence evaluation in the second report was not based on any earlier finding of competence. Rather, it was based on an interview with defendant the psychiatrist conducted specifically for his second report.
The notice of appeal indicates that defendant planned to challenge the sufficiency of the evidence supporting the probation violation and the finding of competence, but neither of these issues is raised in defendant's briefs on appeal. Nor does defendant argue that based on his trial counsel's representation the court was required to determine his competence at an earlier stage of the proceeding. (See e.g., People v. Smith (2003) 110 Cal.App.4th 492, 504-505 [while defendant found presently incompetent at competence hearing, no finding he was also incompetent during the first three days of trial].)
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II
Defendant also argues the trial court abused its discretion when it sentenced him to prison rather than to probation with time in a mental health treatment facility. The trial court's sentencing choice is reviewed for abuse of discretion and will not be disturbed if the trial court "'has considered all facts bearing on the offense and the defendant to be sentenced.' [Citation.]" (People v. Downey (2000) 82 Cal.App.4th 899, 909-910.)
Defendant argues the trial court gave no analysis for its sentencing decision and rejected out of hand defense counsel's reasoned argument and the psychiatrist's recommendation that defendant be placed in a treatment program. The record does not support this argument. The trial court found defendant competent and in violation of probation and decided that imposition of the suspended sentence was appropriate under the circumstances, especially in light of defendant's sizeable presentencing credits. Defense counsel referred the court to the psychiatrist's recommendation that defendant be "placed in a treatment program in order to have more structure and supervision." The psychiatrist had added the caveat that the actual sentencing decision was for the court to make. The trial court followed defense counsel's advice, recommending that defendant be considered for placement at the Vacaville medical facility. The court was not bound by the psychiatrist's recommendation, but it did consider defendant's need for medical health treatment in its sentencing. We find no abuse of discretion under the circumstances.
DISPOSITION
The judgment is affirmed
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J. We concur:
WILLHITE, J.
MANELLA, J.