Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara Super. Ct. No. 1226496, Zel Canter, Judge
Gilbert W. Lentz, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Michael C. Keller, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
A jury found Ivan Moreno Hernandez guilty of two counts of attempted murder (Pen. Code, §§ 664/187, subd. (a)) and evading a police officer (Veh. Code, § 2800.2, subd. (a)). The jury also found true that Hernandez personally discharged a firearm causing great bodily injury (Pen. Code, § 12022.53, subds. (b)-(d)) and that the offenses were committed for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)). The trial court sentenced Hernandez to a term of 80 years to life.
Hernandez contends the trial court erred in refusing his request for a competency evaluation and in failing to hold a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). He also contends his punishment is cruel and unusual. We affirm.
FACTS
On February 17, 2007, Carlos Gomez was working as a security guard at a dance for teenagers in Santa Maria. The dance was being held at a church. Gomez noticed a group of young men standing to the west of the church entrance. Hernandez was in the group. When Gomez told the group that they could not stand there, Hernandez said, "viva la raza." Hernandez was wearing a white football jersey with the number "13" on the front and "Southside" on the back.
Gomez returned to the front of the church. About two minutes later, he heard a noise like firecrackers. He saw Hernandez running toward the front of the church. As he ran, he shot at people standing in line for the dance. Hernandez said, "'sur trece,'" meaning Southside 13, and walked away.
Gomez followed Hernandez. As they got to the church parking lot, Hernandez picked up a bicycle. Some people in a car told Hernandez, "'Drop the bike, come with us....'" Hernandez dropped the bike. Prior to getting into the car, Hernandez looked at Gomez, lifted up his hands and said, "'West Park, mother-fucker. What are you going to do about it.'" The car left with Hernandez. As it drove away, Gomez got its license plate number.
Hernandez wounded two people in the shooting. One sustained a gunshot wound to his left arm. The other sustained a gunshot wound that passed through his left arm and entered his chest.
A few hours after the shooting, Hernandez was driving a green pickup truck. Santa Maria Police Officer, Joe Lopez, attempted to stop the truck. Lopez used his lights and siren, but the truck fled. After about a mile, Hernandez stopped the truck and fled on foot. Lopez found him lying underneath a car and arrested him.
Sentencing Hearing
A probation report stated in part: "Throughout the interview [Hernandez] seemed confused, and the undersigned felt the defendant did not understand the gravity of his situation. He made numerous statements indicating he had not yet been convicted, as well as other comments which led the undersigned to believe the defendant was either in denial, or suffering from memory and mental health issues as he contended."
The following colloquy took place at the sentencing hearing:
"[DEFENSE COUNSEL]: I received a letter -- it didn't look like a Marsden motion, but it kind of did, because he feels he needs to be evaluated for his competency. He has, in the past -- I know about this -- in the past he's experienced head trauma injury; we got the medical reports. I formed the opinion that the reports themselves do not necessarily support that conclusion. I had two investigators on this case and we all felt like we could go forward to trial, but Mr. Hernandez felt that he has not understood the process enough. So I think he wants to make some comments to the court about that. Is that true?
"[HERNANDEZ]: Yes. Through the whole trial, I never -- I didn't feel competent to know what was going on in this trial. I just want an evaluation, if I can speak to a doctor concerning my....
"THE COURT: I've never had this problem where a defendant says, 'I'm not competent,' and no one else thinks that. There's no doubt expressed by anyone, other than the defendant?
"[DEFENSE COUNSEL]: I will say this, when I talked to Ms. Guggia about this case, the probation officer who actually, I think was responsible for preparing the memorandum, if I'm not mistaken. She was very involved in it, I know that. She said that she had questions about Mr. Hernandez, that he certainly acted differently than other people that she's interviewed and talked to. She didn't have any conclusions about that, other than to make those observations."
The hearing was continued so that the prosecutor who tried the action could appear.
Two days later, at the continued hearing, the bailiff told the court that Hernandez refused to come into the courtroom. The prosecutor suggested the court proceed with sentencing. Defense counsel asked the court to consider Hernandez's "quasi-Marsden"motion. The court said that it read the probation report, and "there's plenty of lucidity when he's talking to the probation officer."
Defense counsel stated: "I had made the comment at the last hearing that both Probation Officer Guggia and myself felt that he was a different kind of a person, but as far as -- I've never -- I feel very awkward. I don't know what to do, other than stand by and say I have no understanding that he's not...." The court stated: "You are caught, because you can't reveal anything, and yet you're an officer of the court and don't want to mislead us."
The court told the bailiff to advise Hernandez that "the court has no basis to declare a doubt as to his competency, and now does he wish to make an appearance this morning and advise the Court as to why he feels he's incompetent?"
Hernandez still refused to enter the courtroom. The court said, "[The] opportunity for me to examine the question of whether or not he's able to cooperate with counsel in his own defense is now gone."
DISCUSSION
I
Hernandez contends the trial court abused its discretion in failing to inquire into his ability to proceed with sentencing.
A person cannot be tried or adjudged to punishment while mentally incompetent. (Pen. Code, § 1367, subd. (a).) A person is mentally incompetent if, as a result of a mental disorder or developmental disability, he 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 defendant presents substantial evidence of incompetence, due process requires that the trial court conduct a full competency hearing. (People v. Koontz (2002) 27 Cal.4th 1041, 1063.) Evidence is substantial if it raises a reasonable doubt about the defendant's competence. (Id. at p. 1064.)
It is true the probation report suggests that Hernandez might suffer from mental illness. But nowhere does the report say Hernandez is unable to understand the nature of the proceedings or to assist counsel in his defense.
Hernandez's counsel did not tell the trial court that Hernandez was incompetent. Counsel told the trial court only that Hernandez claims he is incompetent. Although counsel avoided expressly stating that he did not agree with Hernandez's incompetency claim, it is clear from a reading of the transcript that counsel did not agree. "[B]ecause trial counsel interacts with the defendant on a daily basis, he is in the best position to evaluate whether the defendant is able to participate meaningfully in the proceedings. [Citation.]" (People v. Rogers (2006) 39 Cal.4th 826, 848.) In addition, the trial court was able to observe Hernandez during trial, and found no basis for a competency hearing. Because the trial court has the opportunity to observe the defendant during trial, its decision on whether to hold a hearing is entitled to great weight. (Id. at p. 847.)
Most significantly, when the trial court attempted to investigate Hernandez's claim of incompetency, Hernandez refused to cooperate. There is no substantial evidence that would raise a reasonable doubt as to Hernandez's competency.
II
Hernandez contends the trial court abused its discretion in failing to hold a Marsden hearing.
When a defendant seeks to discharge his appointed counsel and substitute another attorney, the trial court must give him an opportunity to specify the reasons for his request. (Marsden, supra, 2 Cal.3d at p. 124.) The defendant "must establish either that appointed counsel is not providing adequate representation or 'that [he] and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.' [Citation.]" (People v. Mayfield (1997) 14 Cal.4th 668, 795.) The defendant must give specific examples of counsel's inadequacies. (People v. Smith (1993) 6 Cal.4th 684, 696-697.)
Here Hernandez's counsel told the court, "I received a letter - it didn't look like a Marsden motion, but it kind of did...." Later, Hernandez's counsel described the letter as "kind of like a quasi-Marsden thing...." Counsel told the court Hernandez believes he needs to be evaluated because he is concerned he is not competent. Counsel said, "He says he wants another attorney if I don't support him on that."
If by "support" Hernandez means he wants his counsel to request an evaluation, his counsel did that. Thus there was no need for the court to hold a Marsden hearing. If instead, Hernandez is insisting that his counsel agree there is a reasonable doubt about his competency, Hernandez has not stated a proper basis for appointing new counsel. The purpose of a Marsden hearing is to ensure the defendant is receiving effective assistance of counsel. (See People v. Mayfield, supra, 14 Cal.4th at p. 795.) Effective assistance does not require that his counsel agree on the factual question of Hernandez's competence.
Moreover, the denial of a Marsden hearing is not reversible error if it is harmless beyond a reasonable doubt. (People v. Chavez (1980) 26 Cal.3d 334, 348.) Here the record shows Hernandez's counsel did everything he could within the bounds of ethics to obtain a competency evaluation. It was Hernandez's refusal to cooperate with the court, not anything his counsel did or failed to do, that doomed any chance at an evaluation he might have had. If the trial court erred in failing to hold a Marsden hearing, the error was harmless beyond a reasonable doubt.
III
Hernandez contends his sentence constitutes cruel and unusual punishment. (U.S. Const. 8th Amend.; Cal. Const., art. I, § 17.)
Under the California Constitution, a sentence constitutes cruel and unusual punishment if it is so disproportionate to the offense for which it is imposed that it shocks the conscience and offends fundamental notions of human dignity. (People v. Dillon (1983) 34 Cal.3d 441, 478.) As an aid in determining whether a sentence constitutes cruel and unusual punishment, we engage in a three-part analysis. First, we examine the nature of the offense and the offender, paying particular attention to the danger each poses to society. Second, we compare the punishment with punishment for more serious crimes in the same jurisdiction. Third, we compare the punishment with the punishment imposed for the same offense in other jurisdictions. (People v. Almodovar (1987) 190 Cal.App.3d 732, 739-740, citing In re Lynch (1972) 8 Cal.3d 410, 425-427.)
Here Hernandez argues the injuries he inflicted, although potentially deadly, were relatively minor. But it is only a matter of pure luck that the victims were not killed or more seriously injured. In fact, it borders on the miraculous. That Hernandez simply shot people without the slightest provocation, demonstrates he poses a great danger to society. Hernandez points to nothing about the nature of the offense or the offender that shows his sentence is so disproportionate it shocks the conscience.
Hernandez does not challenge his sentence by comparing his punishment with punishment for more serious crimes in the same jurisdiction, or with the same crime in other jurisdictions.
Finally, we have disposed of Hernandez's arguments that issues relating to substitution of counsel and his mental condition could have affected his ability to proceed.
The judgment is affirmed.
We concur: YEGAN, J., COFFEE, J.