Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC051622A
Haerle, Acting P.J.
I. INTRODUCTION
This is defendant Jose Francisco Guevara’s second appeal in this matter. In his first appeal (People v. Guevara (Nov. 9, 2005, A101011) [nonpub. opn.]), defendant challenged his conviction of two counts of rape (Pen. Code, § 261, subd. (a)(2) ), two counts of forcible oral copulation (§ 288a, subd. (c)(2)), three counts of forcible lewd acts on a child under age 14 (§ 288, subd. (b)), six counts of non-forcible lewd acts on a child under age 14 (§ 288, subd. (a)) and four counts of spousal rape (§ 262, subd. (a)(1)). He was sentenced to 96 years in state prison.
All further statutory references are to the Penal Code unless otherwise specified.
We previously affirmed the judgment of conviction. We also concluded that the trial court erred in sentencing defendant to the aggravated term on the spousal rape charge and remanded the matter solely for resentencing.
When the matter was returned to the trial court for resentencing, defense counsel expressed a doubt about Guevara’s competence to be resentenced. The court ordered a trial, pursuant to section 1368, on the issue of defendant’s competence. A year later, and after examination by four psychiatric experts, a jury found defendant competent. Defendant was resentenced to 30 years and now appeals.
He argues that (1) substantial evidence does not support the jury’s verdict that he was competent to be resentenced; (2) the evidence raised at this competency trial raised a doubt as to his competence to stand trial in 2002 and the court erred in not addressing this issue; (3) the court erred in excluding evidence of defendant’s behavior during 2002 plea negotiations; and (4) the court abused its discretion when it denied defendant’s request for a continuance because one of its experts was unavailable to testify at trial.
We affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
Our recitation of the facts on which defendant’s conviction is based can be found in Appeal No. A101011. In short, defendant molested his daughter on multiple occasions from the time she was in the fifth grade until she was in the ninth grade. Defendant also sexually assaulted his wife. Defendant was sentenced to 96 years in prison and filed an appeal. Among other contentions, we rejected defendant’s argument that the trial court erred in failing to conduct a competency hearing under section 1368 before it sentenced defendant to the 96-year term. We affirmed the judgment and remanded on the limited issue of resentencing.
On May 24, 2006, before the resentencing hearing took place, defendant’s trial counsel raised a question regarding defendant’s competence to participate in the resentencing. In response, the court appointed several experts to consider the issue of defendant’s competence to assist his attorney at the resentencing and received reports from three court-appointed experts, Drs. Silva, Weiner and Cohen. After receiving these three reports, the court found that Dr. Silva’s report (which concluded defendant was psychotic) was diametrically opposed to Dr. Cohen’s report (which concluded that nothing rendered defendant currently incapable of assisting his counsel). Dr. Weiner, the third doctor, did not take a position on competence.
Therefore, the court appointed a fourth doctor, Dr. Kline, who submitted a report on defendant’s competence. The court also referred defendant to the Golden Gate Regional Center for assessment.
Dr. Kline concluded that, despite defendant’s “declined” cognitive abilities, defendant had the capacity to “rationally collaborate with counsel on his defense.”
Dr. Moore, who conducted the examination at the Regional Center, found that defendant met the “diagnostic criteria for mental retardation” and was “currently . . . not competent to understand the nature of the criminal proceedings in this case and is not able to assist his attorney in a meaningful way.”
On March 29, 2007, the court scheduled a jury trial on the issue of incompetence for July 23, 2007.
On July 20, 2007, defendant sought a continuance of the trial on the ground that Dr. Silva was not available to testify at the trial on the scheduled date. The People and defendant proposed that the trial be moved to October 15, 2007 to accommodate all the experts. The court denied this motion. The court noted that a year had passed since the issue of competence had been raised. The court also asked if Dr. Silva had been subpoenaed and, when it learned he had not, denied the motion and ordered that the trial of defendant’s competency be held on the originally scheduled date.
At the trial, Dr. Kline and Dr. Cohen testified on behalf of the People. Dr. Moore and Dr. Weiner testified on behalf of defendant.
Dr. Kline interviewed defendant for an hour and a half. He also gave defendant a competency test designed specifically for mentally retarded defendants (the “Competency Assessment for Standing Trial for Defendants with Mental Retardation”) During his interview with Dr. Kline, defendant stated that he understood he “was brought back to this county for resentencing with the hopes of getting a shorter sentence.” He also told Dr. Kline he was innocent and, in Dr. Kline’s opinion, defendant appeared to underestimate the gravity of his crime and his potential sentence.
With regard to the test he administered to defendant to assess his competence to function at the sentencing hearing, Dr. Kline stated that defendant’s score on this test was “significantly higher” than the score of a “mentally retarded incompetent individual” and lower than the score of someone who was competent, but not mentally retarded. Dr. Kline described defendant’s score as “almost, almost the same score as the group of mentally retarded competent individuals.”
According to Dr. Kline, defendant understood numerous concepts about the operation of the justice system, including “what a sentence is,” “what an innocent versus guilty means,” and the “purpose of his attorney.” Dr. Kline opined that defendant did not suffer from any mental illness and was neither psychotic nor delusional.
Dr. Kline was familiar with Dr. Silva’s view that defendant suffered from psychosis. According to Dr. Kline, this view was based on defendant’s statement that people were controlling him in jail. Dr. Kline explained that, in fact, defendant “was referring to the correctional officers, the police, to control you, in his very kind of simple unsophisticated, understanding of the technology in the jail, and the, you know, there are, you know, it is designed to control people. And he has, you know, kind of naïve beliefs about that; doesn’t really have sophisticated beliefs about technology.”
Ultimately, Dr. Kline concluded that defendant was competent to be resentenced.
Dr. Cohen also testified on behalf of the People. She performed a competency assessment on defendant with the assistance of an interpreter. Her meeting with defendant took about two hours. She administered a test to defendant called a “Revised Competency Assessment Instrument.” Defendant rated as a “pass” on this test. Based on “the historical record, current records, current psychiatric functioning, current cognitive functions behavior,” Dr. Cohen concluded that defendant was competent to stand trial, was not developmentally delayed and did not suffer from any mental disease.
Dr. Weiner testified on behalf of defendant. He interviewed defendant in June 2006, using an interpreter. Although at the time of the interview, defendant had been sentenced to 96 years in prison, his “firm and fixed opinion was [] that he had been sentenced at trial to nine years; that he had served a certain fraction of that . . . and he was certain and convinced that . . . that was all he was liable to serve in prison.” Defendant “seemed genuinely confused.” Defendant “insisted . . . that he had accepted the plea bargain.” Dr. Weiner did not administer any tests, but his clinical impression was that defendant’s IQ was low, “possibly at the level of mental retardation.” He did not think defendant suffered from mental illness. In Dr. Weiner’s opinion, at the time he interviewed defendant, defendant did “not understand his own status and condition in these criminal proceedings.” Dr. Weiner was “quite convinced that there . . . were possible problems with his competency when [he] evaluated [defendant] . . . due to a developmental disability rather than psychiatric illness.” However, Dr. Weiner believed that defendant should be assessed for a developmental disability by the Golden Gate Regional Center.
Dr. Weiner reviewed the reports of the doctors who examined defendant, including Dr. Silva. Dr. Weiner did not think that defendant suffered from a severe psychosis. He explained that Dr. Silva’s conclusion that defendant was psychotic was based on a misunderstanding about remarks defendant made with regard to the voices of jail custodial staff that could be heard over the intercom. Dr. Weiner did not think defendant’s comments about these voices were delusional, as Dr. Silva did, but were “a reference to his experience of what these voices in the jail were telling him to do or not to do . . . .” Finally, when asked directly on cross-examination about his opinion as to defendant’s competency, Dr. Weiner testified that he was unable to tell if defendant was incompetent at present, or if he had been incompetent a year earlier when he had interviewed defendant.
Dr. Moore, a psychologist with the Golden Gate Regional Center, testified on behalf of defendant. Dr. Moore met with defendant on two occasions for a total of five hours, using an interpreter. He also reviewed the reports of Drs. Silva, Cohen and Weiner. Based on a series of tests, Dr. Moore concluded that defendant, who tested at a “low level of functioning,” had a developmental disability. Dr. Moore described defendant as “mentally retarded.” He did not agree with Dr. Dr. Silva that defendant suffered from psychosis.
Dr. Moore concluded defendant was not legally competent. Dr. Moore also admitted that he did not administer any test to defendant to specifically assess his competence in the legal arena.
After deliberating for a day, the jury found defendant competent.
Defendant was then resentenced to a 30-year term. This timely appeal followed.
III. DISCUSSION
A. Substantial Evidence of Competency
After a jury trial pursuant to section 1369, the jury concluded that defendant was competent. Defendant now argues that his right to due process was violated because the evidence was insufficient to establish that he was competent to be resentenced.
Section 1367, subdivision (a), provides that a defendant who is mentally incompetent “cannot be tried or adjudged to punishment.” 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.” (Ibid.) “A defendant is presumed competent unless the contrary is proven by a preponderance of the evidence.” (People v. Dunkle (2005) 36 Cal.4th 861, 885 (Dunkle), disapproved on other grounds in People v. Dolin (2009) 45 Cal.4th 390, 421, fn. 22.)
We review a jury’s verdict that a defendant is competent to stand trial under the usual substantial evidence standard. (Dunkle, supra, 36 Cal.4th at p. 885.) In so doing, we view the evidence in the light most favorable to the verdict. (Ibid.) “Evidence is substantial if it is reasonable, credible and of solid value.” (Ibid.)
The jury’s verdict is supported by substantial evidence. Both Dr. Kline and Dr. Cohen, who qualified without objection as experts, examined defendant, administered tests designed to assess his legal competency and, based on their examination and testing, concluded he was competent. Their testimony constitutes substantial evidence in support of the jury’s verdict.
Defendant, however, argues that the verdict is not supported by substantial evidence because defendant told several mental health experts that he did not believe he had been convicted of any crime against his wife, and that he had been sentenced to eight years, rather than 96. Defendant’s fixed, and erroneous beliefs about his status in the criminal justice system may, in fact, be evidence of incompetence. However, such “evidence of incompetence [does not] negate the reasonable, credible evidence supporting the jury’s verdict of competency.” (People v. Frye (1998) 18 Cal.4th 894, 1004, disapproved on other grounds in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) The evidence presented by the People in support of competence was both reasonable and credible. Accordingly, we reject defendant’s argument.
B. Competency During 2002 Trial
Defendant argues the trial court had before it evidence that raised a doubt regarding whether, in 2002 when defendant was tried, he was competent. Defendant contends that, in this remanded matter, the trial court was required to hold an additional competency hearing into the question of defendant’s competence in 2002. He further contends that we should remand this matter for a new trial as to defendant’s competence during the 2002 proceedings.
Defendant’s argument, however, cannot be raised in this appeal. We affirmed the judgment in this case, including all issues having to do with defendant’s competence in 2002. Our remand was limited solely to defendant’s sentence. For this reason, the only errors that may be raised in an appeal from that remand are those that relate to defendant’s re-sentencing, including his competence to be resentenced.
The People argue that the law of the case doctrine bars this claim, an argument that ignores the more basic point that, on an appeal of a remand for resentencing, defendant cannot challenge the judgment against him, a judgment we affirmed.
In a similar case, People v. Deere (1991) 53 Cal.3d 705 (Deere), our Supreme Court remanded a capital matter for retrial of the penalty phase only. On appeal following the remand, defendant argued that his lawyer was deficient because, during the retrial of the penalty phase, the lawyer failed to raise the issue of his defendant’s mental competence to stand trial during the guilt phase. The Deerecourt rejected this argument. It explained that “[c]ontentions relating to the guilt phase were considered and rejected by this court in defendant’s first appeal. [Citation.] Although the judgment was reversed as to penalty, it was ‘affirmed in all other respects.’ [Citation.] Thus, only errors relating to the penalty phase retrial may be considered in this subsequent appeal. (People v. Durbin (1966) 64 Cal.2d 474, 477, 433; People v. Smyers (1969) 2 Cal.App.3d 666, 668.)” (Deere, supra, 53 Cal.3d at p. 713; see also Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 701; People v. Murphy (2001) 88 Cal.App.4th 392, 395.)
Here, as in Deere, the issue of defendant’s trial competence was considered and rejected in defendant’s first appeal. In his prior appeal, defendant raised the issue of competence. In that appeal, defendant argued that the trial court erred in not ordering, sua sponte, a competency hearing, based on statements defendant made during his sentencing hearing. We rejected this argument. Defendant may not raise it now, in this appeal from a limited remand for resentencing.
Defendant is not, however, necessarily barred from raising the question of his competence in 2002. (See, e.g., Zapata v. Estelle (5th Cir. 1979) 588 F.2d 1017, 1020 [“Even when a bona fide doubt of competency is not raised at trial, the defendant can still contest his competence to stand trial through post-conviction relief . . . .”].)
C. Evidence from 2002 Plea Hearing
Defendant argues that the trial court erred in limiting evidence of the details of the conversation defendant had in 2002 with the trial court when he was sentenced. This conversation was the basis for defendant’s argument in his appeal from the judgment of conviction that the trial court was required, sua sponte, to order a competency hearing. We rejected this argument.
The purported erroneous exclusion of evidence occurred during defense counsel’s examination of Dr. Weiner. Counsel referred to “material about a conversation that Mr. Guevara had with the trial judge in mid 2002” and asked counsel if he “had a chance to review that conversation between the judge and Mr. Guevara.” The People objected on the grounds of relevance and an unreported side bar conference took place.
After the conference, the trial court stated, “the formal ruling on the record is based on the conversation at side-bar. [¶] The objection is overruled. [¶] Consistent with our discussion. Continue.”
Defense counsel then asked Dr. Weiner about the conversation between defendant and the judge. Specifically, he asked if it “seem[ed] that the judge was having a similar experience that you had, in that Mr. Guevara was not understanding the questions and not answering her questions.” Weiner responded, “Correct.”
Defense counsel also asked Dr. Moore a very similar question about the 2002 sentencing and Dr. Moore responded that he, too, had difficulties similar to those the trial judge experienced in 2002 when communicating with defendant.
Defense counsel asked Dr. Cohen the same questions about the 2002 conversation with the trial court. Dr. Cohen testified that her problems communicating with Guevara were “not to the extent that the judge did. Um, well, in this case with the judge, he, I think, Mr. Guevara was–” Counsel interrupted her and said, “[w]e don’t go into specifics, I’m sorry.” The court reiterated this instruction. Cohen testified that her conversation with Guevara was smoother than that of the trial judge in 2002.
Defendant suggests that the trial court, at the unrecorded side bar, permitted questions with regard to the 2002 conversation between defendant and the trial court, but limited the scope of this questioning by prohibiting counsel to “go into specifics about the discussion that Mr. Guevara had with another judge.”
The People argue that defendant waived this error by failing to make an offer of proof as to the specifics of the conversation he wanted to have admitted into evidence and by failing to object to the court’s limitation on the evidence following the unreported side bar conference. We agree. Defendant did not object on the record to any limitation the court might have placed on the introduction of this evidence. His failure to do so constitutes a waiver. (People v. Viray (2005) 134 Cal.App.4th 1186, 1208, italics omitted [“Ordinarily a court cannot commit error in the admission of evidence unless it is called upon to rule on an objection by a party. (See Evid. Code, § 353, subd. (a).”].)
However, even if defendant had preserved this issue for appeal, the trial court did not err in excluding the specifics of the 2002 conversation under Evidence Code section 352. Section 352 provides that a trial court may “in its discretion . . . exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” We review the exclusion of evidence under the abuse of discretion standard of review. (People v. Watson (2008) 43 Cal.4th 652, 684.)
Here, the trial court did not entirely exclude evidence of defendant’s difficulties in communicating with the trial court. In fact, each of the experts who testified was permitted to characterize defendant’s communications and the jury was aware that defendant had difficulty communicating clearly with the trial court. The trial court was within its discretion to conclude that anything more, in the form of the entire exchange with the trial court would be more time consuming than probative.
D. Denial of Request for Continuance
Defendant argues the trial court committed prejudicial error when it denied his request for a continuance of the competency trial because Dr. Silva was not available on the scheduled date of the trial. We review the denial of a continuance request under the abuse of discretion standard of review. (People v. Jenkins (2000) 22 Cal.4th 900, 1037.) In considering this issue, we keep in mind that the “trial court has broad discretion to determine whether good cause exists to grant a continuance of the trial.” (Id. at p. 1037.) “When a continuance is sought to secure the attendance of a witness, the defendant must establish ‘he had exercised due diligence to secure the witness’s attendance, that the witness’s expected testimony was material and not cumulative, that the testimony could be obtained within a reasonable time, and that the facts to which the witness would testify could not otherwise be proven.’ [Citation.] The court considers ‘ “not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion.” ’ [Citation.]” (Ibid.)
The court based its denial of the motion on the fact that defendant did not exercise due diligence to secure Silva’s attendance because he did not subpoena Dr. Silva. The court also pointed out that the competency matter had been pending for a year, and it’s “not appropriate or fair to the victims of this case who deserve some closure. It’s not fair to the sheriff that houses these inmates. We have an overcrowded jail, there is no excuse . . . for this 1367 to be pending for over a year.” The court’s actions were within the appropriate exercise of its discretion.
Moreover, even if the trial court erred in granting this motion, any such error was not prejudicial. Although defendant contends that Dr. Silva’s testimony was crucial because he was the only psychiatrist who believed defendant was psychotic, Dr. Silva’s views were discussed by both defense and prosecution witnesses. Moreover, Dr. Silva’s opinion that defendant was psychotic was rejected by every expert who testified, including defendant’s own expert witness. We agree with the People that even if Dr. Silva had testified, his testimony would not have led to a different result.
IV. DISPOSITION
The judgment is affirmed.
We concur: Lambden, J., Richman, J.