Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Arthur Harrison, Judge, Super.Ct. No. FVA024728
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P.J.
On October 28, 2005, defendant and appellant Joe Frias was charged by information with assault with the intent to commit a felony (Pen. Code, § 220, count 1), first degree burglary (§ 459, count 2), false imprisonment (§ 236, count 3), and resisting an executive officer (§ 69, count 4). The information also alleged that counts 1 and 2 were violent felonies (§ 667.5, subd. (c)), and that defendant had six prior strike convictions (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)). Defendant pled not guilty to all counts and denied the prior convictions. After several continuances, on August 18, 2006, defendant pled not guilty by reason of insanity, and the trial court appointed two doctors to examine him. In April 2007, the trial court declared a doubt as to defendant’s mental competence and suspended criminal proceedings. A section 1369 jury trial on defendant’s mental competence began on March 3, 2008. Four doctors who had evaluated him testified at trial. The jury found defendant competent, and the trial court reinstated the criminal proceedings.
All further statutory references are to the Penal Code unless otherwise indicated.
On April 7, 2008, defense counsel declared a doubt as to defendant’s competence, based on developmental disability. The trial court granted counsel’s request that defendant be evaluated by two doctors on whether he was developmentally disabled and competent to stand trial in that regard. At a subsequent hearing, the trial court stated that since defendant had already been found mentally competent at the previous jury trial, the matter should proceed, pursuant to section 1370.1. The trial court reinstated the criminal proceedings.
A first amended information was filed on November 6, 2009, alleging the same counts and six prior strike convictions. Pursuant to a plea agreement, defendant pled guilty to counts 2 and 4 (§§ 459, 69), and admitted one prior strike conviction (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), and two serious felony convictions (§ 667, subd. (a)(1)). On a motion by the People, counts 1 and 3 were dismissed. (§ 1385.) The trial court sentenced him to a total state prison term of 23 years four months, as agreed upon.
Defendant filed a notice of appeal challenging the sentence or other matters occurring after the plea and the validity of his plea. He requested a certificate of probable cause, stating that he was challenging his guilty plea because he was mentally incompetent when he entered the plea and because his trial counsel provided ineffective assistance of counsel. The trial court denied the request. We affirm.
The factual background is derived from the preliminary hearing transcript.
Facts of the Offense
Around 12:30 a.m., on June 16, 2005, the 16-year-old victim was at home in bed, when she woke up and saw a man kneeling on her bed, unbuckling his belt or unzipping his pants. The victim jumped out of bed and ran to the door. The man grabbed her around the waist, but she broke free, ran to her mother’s room, and called 911.
The victim’s father was in the kitchen and heard his daughter scream. He looked around and saw a man standing at the bottom of the stairs. The man said he had heard screams and came inside the house to see if everybody was all right. The victim’s father grabbed the man by the arm and walked him outside. The man walked away.
A police officer responded to the call for an attempted rape, got a description of the suspect, and had an idea of who that person might be, since he was familiar with defendant. Officers went to defendant’s house, where the victim positively identified him. After defendant was arrested, he was seated on the curb with handcuffs on. When one of the officers began to escort him to the patrol car, defendant started pushing the officer backward and tried to “head butt” him. He also bit that officer’s hand. Defendant was eventually subdued and placed in the patrol car.
Section 1369 Competency Trial and Subsequent Proceedings
At trial, two doctors opined that defendant was not competent to stand trial, and two doctors opined that he was malingering (faking mental illness) and was competent to stand trial. One of the doctors who found defendant competent did not administer any forensic tests to determine if he was malingering and did not review his criminal history or past mental health records. The doctor’s finding was based on what defendant told him during one interview, and on defense counsel’s statement that defendant had an extensive treatment history. The other doctor who found defendant incompetent did so mostly because she did not believe he had the basic intellectual capacity to understand the issues at hand. She perceived him as mildly retarded, although she did not give him an IQ test. The doctors who found defendant competent reviewed his community health records, jail medical records, police reports, and criminal history. One of the doctors also used a forensic test to determine that defendant was malingering. On March 11, 2008, the jury found defendant competent, and the trial court reinstated the criminal proceedings.
On April 7, 2008, defense counsel declared a doubt as to defendant’s competence based on his developmental disability. The matter was referred to the Inland Regional Center (IRC) for an evaluation of whether defendant was developmentally disabled and whether he was eligible for IRC services. The first psychologist who evaluated him was not available for trial, so the matter was referred to IRC for another evaluation. On October 8, 2008, the trial court noted that it had read a letter from Noemi Bancod-McInnes, Psy.D., stating that defendant had the capacity to cooperate with counsel in presenting a defense and was competent to stand trial. After numerous hearings and continuances, the trial court held a hearing on October 16, 2009, at which the prosecutor stated the parties were ready to set the developmental disability matter for trial. The prosecutor informed the trial court that IRC’s position was that defendant was not developmentally disabled. The trial court then read section 1370.1, subdivision (a)(1)(A) and (a)(1)(B), to the parties. Subdivision (a)(1)(A) provides: “If the defendant is found mentally competent, the criminal process shall resume, the trial on the offense charged shall proceed, and judgment may be pronounced.” Subdivision (a)(1)(B) provides: “If the defendant is found mentally incompetent and is developmentally disabled, the trial or judgment shall be suspended until the defendant becomes mentally competent.” The trial court stated that defendant had already been found mentally competent at the previous jury trial and, thus, reinstated the criminal proceedings.
DISCUSSION
Defendant appealed and, upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a summary of the facts, one potential arguable issue, and requesting this court undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, which he has not done. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error.
We have now concluded our independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER J., KING J.