Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 05F07566 & 02F09650
BLEASE, Acting P. J.
A jury convicted defendant Dwayne Hubbard of one count of assault with intent to commit sexual penetration by a foreign or unknown object (Pen. Code, §§ 220, 289, subd. (a)(1)), and one count of attempted kidnapping. (§§ 664/207, subd. (a).) In a bifurcated trial, the trial court found true an allegation that defendant had a prior conviction within the meaning of sections 1170.12 and 667, subdivision (a) for a lewd act upon a child. Defendant was sentenced to 13 years in state prison.
References to an unnamed section are to the Penal Code.
Defendant argues the trial court erred when it improperly denied his request to suspend the trial and initiate proceedings to determine his mental competence and improperly granted the prosecutor’s motion to amend count one of the information. He also argues there was insufficient evidence that he intended to commit sexual penetration by a foreign or unknown object when he assaulted the victim.
We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
After playing in a tennis match at Luther Burbank High School, the victim, 16 year-old L.R., walked to the light rail station to take the light rail train home. The victim was standing up in the train when defendant approached her and asked her name. She did not respond, and moved to sit down. She got off the train at the Meadowview station and began walking home. Several other people, including defendant, also got off the train at Meadowview.
Defendant approached the victim and asked her to read a text message on his cell phone. The victim told defendant she could not read, and walked away. At some point, the victim became aware defendant was following her. Defendant came up behind her, pulled her hair, and hit her in the eye. She tried to run away, but he pulled her toward some bushes. She resisted and pushed him away, then ran into the street.
When the victim tried to run away, defendant told her, “don’t run from me, you’re going to be my girl.” He told her, “you’re going to be mine.” The victim was scared. She thought he was going to rape her, or do “anything he wanted.”
Defendant ran after her, grabbed the front of her shirt, and ripped it open from the collar down to the belly button. The victim tried to cover herself with her hands and arms, and kept backing toward the middle of the street. Defendant kept grabbing and trying to move her hands out of the way so he could see her exposed torso.
At the end of the struggle, a police car came. Defendant walked away, and the victim was in the middle of the street, crying. The victim got into the police car and told the officer what had happened.
Officer Joseph Ellis was patrolling the area in a marked patrol car. He saw a male and female in the street, who appeared to be arguing. He yelled at them to get out of the road. The female turned toward him and yelled, “help,” then ran toward the patrol car. Her shirt was ripped, and she appeared upset and panicked. She told Ellis, “that guy tried to rape me or something.” The male started to walk away. Ellis twice told him to stop, but he kept walking. Ellis reported the incident on the radio and kept an eye on defendant. Another unit arrived and detained defendant down the street. In addition to the victim’s ripped shirt, Ellis noticed her left eye was beginning to swell.
Ellis arrested defendant. A search of defendant’s person revealed four condoms in defendant’s pocket.
The prosecution presented evidence of a prior assault pursuant to Evidence Code section 1101, subdivision (b) and 1108. These sections provide in pertinent part that evidence of a person’s character may be admitted to prove intent, and that evidence of a prior sexual offense is admissible in an action where a defendant is accused of a sexual offense. Angelique S. was 12 years old in 2002 when defendant, who was 18, put Angelique in his lap and put his hands inside her pants. He held her down so that she could not get away. He put his fingers inside her vagina, and it hurt. Defendant did not stop when she complained. Defendant was convicted of committing a lewd and lascivious act on a child under the age of 14 (Angelique) in 2002.
Defendant testified at trial. He said that on the day in question he took the light rail train from Florin to the Meadowview station where he met a friend named Paul. Defendant did not know Paul’s last name. He went inside Paul’s car and talked to him for about two or three minutes. They were driving to Paul’s house when they saw the victim. Paul pointed out the victim and told defendant she had been “messing” with Stephanie, Paul’s girlfriend. Defendant decided to approach the victim because Stephanie and Paul always looked to him to solve all their problems. They argued. The victim slapped him, and he hit her back in the face. When she tried to walk away, he reached out to grab her shoulder, but instead got her shirt. When she tried to get away, her shirt ripped. He was not trying to rape her or have sex with her, and there was nothing sexual about the encounter.
Defendant testified he had lied when he told the officer he saw the victim on the train. He said he correctly told the officer he met his friend Paul when he got off the light rail train, but the officer incorrectly mistook the name “Larry” for “Paul.” Defendant told Ellis he did not know Stephanie’s last name. He provided a telephone number for Stephanie, but Ellis was not able to reach anyone at the number defendant provided. Defendant told Ellis he did not hit the victim, nor did he admit to ripping her shirt.
DISCUSSION
I
Competence to Stand Trial
Defendant argues the trial court erred by failing to suspend the trial and hold a hearing to determine competence after his defense counsel declared a doubt regarding his competence to stand trial. Defendant claims the trial court was required to hold a competency proceeding because he presented the court with evidence that raised a reasonable doubt as to his competence. We shall conclude the trial court did not err because no evidence was presented that raised a reasonable doubt.
At the time of the crime, defendant was living in a transitional group home through the Alta California Regional Program. Six months before defendant’s trial began in August 2006, Alta California Regional Center had Jeffrey Miller, Ph.D. perform a psychological evaluation of defendant. Dr. Miller’s evaluation concluded that defendant was at the low-average range of intelligence and had an attention-deficit/hyperactivity disorder, but that he understood the charges against him, would be able to assist his attorney at trial, and was therefore competent to stand trial. This report was given by defendant’s trial attorney to the prosecutor before trial in an attempt to “obtain a better offer in the case.”
After the jury had been selected and the prosecutor had given her opening statement, defense counsel informed the trial court that he had a doubt with respect to the competency of his client. This doubt was based upon a telephone message counsel received from defendant’s Alta Regional Center case worker. The message indicated the regional center had another psychologist look at defendant’s file, and the psychologist came up with a number of potential diagnoses, at least one of which might have an effect on defendant’s ability to understand issues related to his defense. The trial court granted a short continuance for both parties, as well as the court, to research the issue.
After a brief recess, defense counsel informed the court that the new psychologist believed there might be a “suggestion of Asperger’s Disorder, and they’re recommending some further testing.” Defense counsel also spoke with someone “involved with the forensic end of the regional center” who said the new information raised a “possible doubt,” but apparently did not assert the information would raise a reasonable doubt as to defendant’s competency. The new information was not based upon personal evaluation of defendant, but on a review of his charts. Defense counsel acknowledged that his contact at the regional center was not in a position to render any opinion on defendant’s legal competence. The trial court said, “[s]o she’s just saying there was some possibility that if we look at other things, potentially there could be a change in status . . . .” Defense counsel replied, “[y]es.”
The trial court ruled that the new evidence was purely speculative, and that there was insufficient evidence to raise a reasonable doubt as to the defendant’s competence to stand trial. The day after the court’s ruling, defense counsel requested a continuance to investigate whether defendant was competent to stand trial. After confirming defense counsel had no new information, the trial court denied the motion to continue, but told defense counsel he could raise the issue again should further information develop.
When the evidence casting doubt on a defendant’s present sanity is less than substantial, it is within the trial court’s discretion to order a sanity hearing, which discretion will not be disturbed on appeal absent abuse. (People v. Pennington (1967) 66 Cal.2d 508, 518-519.) However, if the defendant comes forward with substantial evidence of present mental incompetence, he is entitled to a sanity hearing as a matter of right pursuant to section 1368. (Ibid.)
Section 1368 states in pertinent part:
Substantial evidence means evidence that raises a reasonable doubt as to a defendant’s competence to stand trial. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1110.) “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.’ [Citations.]” (Ibid.)
A psychiatrist’s opinion will constitute substantial evidence to stand trial if he, “‘“has had sufficient opportunity to examine the accused [and] states under oath with particularity that in his professional opinion the accused is, because of mental illness, incapable of understanding the purpose or nature of the criminal proceedings being taken against him or is incapable of assisting in his defense or cooperating with counsel . . . .”’ [Citations.]” (People v. Rodrigues, supra, 8 Cal.4th at pp. 1110-1111.) However, the Supreme Court has held that a psychiatrist’s opinion does not rise to the level of substantial evidence where he or she does not personally examine the defendant or where the psychiatrist’s opinion is inconclusive. (Id. at p. 1111.)
In this case the only psychiatrist to examine defendant determined him to be competent to stand trial. No psychiatrist “‘“state[d] under oath with particularity”’” that defendant was incompetent. (See People v. Rodrigues, supra, 8 Cal.4th at pp. 1110-1111.) Moreover the later review of defendant’s record was not conclusive as to his competence, but only indicated there was some possibility that upon further examination defendant might be found to be incompetent. This does not rise to the level of substantial evidence, and the trial court did not abuse its discretion in failing to suspend the trial to conduct competency proceedings.
II
Amended Information
The original information charged defendant in count 1 with violating section 220, in that he assaulted the victim with the intent to commit rape in violation of section 261, subdivision (a)(2). Rape is defined as “an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances: . . . [¶] (2) Where it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.” (§ 261, subd. (a)(2).)
Section 220 states in pertinent part: “any person who assaults another with intent to commit mayhem, rape, sodomy, oral copulation, or any violation of Section 264.1, 288, or 289 shall be punished by imprisonment in the state prison for two, four, or six years.”
The prosecutor made a pretrial motion to admit evidence of defendant’s prior conviction for a sexual offense against Angelique. As indicated previously, the evidence was that defendant digitally penetrated Angelique. The prosecutor argued the evidence was relevant to show defendant had a sexual intent when he assaulted the victim. Defense counsel admitted this would be the most likely issue in the case.
After the jury was impaneled, but before opening statements, the prosecutor made a motion to amend the information to specify that count 1 alleged a violation of section 220, assault, but that instead of the assault being with the intent to commit rape, the assault was with intent to commit sexual penetration by a foreign or unknown object. (§ 289, subd. (a)(1).) A “foreign object” does not include a sexual organ. An “unknown object” may include a penis when it is not known what object or body part accomplished the penetration. (§ 289, subd. (k)(2-3).)
Defendant argues the trial court erred in granting the motion. He argues the amendment prejudiced the defense by presenting a new theory of intent. We disagree.
During arguments on the motion to amend, the trial court asked defense counsel to articulate how the defense would be prejudiced by the amendment. Defense counsel argued that it changed the defense because he walked into court believing he would be defending against an intent to commit rape. The court replied that its impression was that the amendment did “not change the substantive charge.” The prosecutor pointed out that even though the jury had been read the charge, the term “rape” had not yet been defined for them.
In ruling in favor of allowing the amendment, the trial court stated that permitting the amendment would not result in substantial prejudice to the defendant’s rights because the amendment did not change any defense theory in the case, and did not alter the evidence that would be presented by either side.
The court may in its discretion allow an amendment to the information at any time during the trial, provided the defendant’s substantial rights are not prejudiced. (People v. Hernandez (1961) 197 Cal.App.2d 25, 31.) “The test for determining whether the trial court abused its discretion in permitting the amendment of the information is whether the amendment prejudiced the substantial rights of the defendant, and attempted to change the offense to one not shown by the evidence taken at the preliminary examination.” (People v. Brown (1973) 35 Cal.App.3d 317, 322.)
As the trial court noted, the amendment in this case did not change the substantive charge. “Any way you cut it and dice it, it’s still [a violation of Penal Code] 220.” Defendant argues he was prejudiced because he was misled in making his defense, and because the amendment took him by surprise by relying on new facts to which he might have presented a defense. We find no substance to these arguments.
First, defendant has not clearly articulated how he was misled in making his defense. To the contrary, his attorney admitted prior to the motion to amend that the issue at trial was likely to be whether he had any sexual intent. In fact, this is exactly the defense he presented. The mere fact that the amendment allowed the prosecutor to argue a broader specific intent on the part of defendant (i.e., the intent either to penetrate the victim with a penis or some other object), did not mean defendant was misled to his prejudice. The amendment did not entail the admission of any additional evidence, and the evidence presented at the preliminary hearing was sufficient to have resulted in the amended charge, because the amended charge included the attempt to rape.
Neither do we find any prejudice because of surprise. The amendment did not rely on any new facts to which defendant might have presented a defense. Defendant asserts now that he had no time to prepare a defense to the amended charge, but he never asked the trial court for time to prepare a defense to the charge. Defendant asserts his counsel asked for additional time, but this is not so. Defense counsel asked for time to prepare an argument against the amendment itself. The court responded that he wanted to give the jury preliminary instructions, but that defense counsel could wait to make his opening statement, and the court would wait to hear argument on the motion to amend until the next morning.
After the court gave preliminary instructions and the prosecutor gave her opening statement, the trial court told the parties to meet the next morning to argue the motion to amend the information. Defense counsel stated he wanted to submit the motion on the argument already made because he did not anticipate having a better argument the next day. The trial court then granted the motion to amend, and defense counsel asked for no continuance in light of the amended complaint.
No prejudice to defendant resulted from the amendment because the change did not result in a substantive change in the charge against him, no new facts or evidence were introduced because of the amendment, and the defense to the charge was not affected by the amendment. Therefore, the trial court acted within its discretion when it granted the motion to amend.
For the same reasons previously articulated, we reject defendant’s claim that the amendment deprived him of fair notice and due process as guaranteed under the Sixth and Fourteenth Amendments. There is no denial of due process if the amendment does not change the nature of the offense charged or prejudice defendant’s rights. (People v. Garringer (1975) 48 Cal.App.3d 827, 833.) The purposes of the Sixth Amendment’s right to be informed of the nature of the charges are to apprise the defendant of what he must defend against and to protect the defendant against double jeopardy. (Gray v. Raines (9th Cir. 1981) 662 F.2d 569, 572.) No double jeopardy issue is present here. Defendant was adequately apprised of the charges when he was given notice of all the evidence to be presented against him well before the trial, and the amendment to the information did not change the evidence to be presented. Moreover, as previously stated, the amendment did not change the charge against him. The Penal Code section he was originally alleged to have violated (assault with intent to commit mayhem, rape, sodomy, oral copulation, or other specified offenses) stayed the same. The only difference the amendment made was to allow the prosecution to argue defendant’s specific intent was to sexually penetrate the victim with his penis or some other object.
III
Substantial Evidence of Intent
Defendant argues there was insufficient evidence to establish that he had the intent to commit sexual penetration by a foreign or unknown object. In reviewing such a claim we review the whole record in the light most favorable to the judgment to determine whether there is substantial evidence, that is, evidence that is reasonable, credible, and of solid value, to determine whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt. (People v. Kelly (2007) 42 Cal.4th 763, 787-788.)
The intent the prosecution was required to prove was the intent to use whatever force required to complete the sexual act against the will of the victim. (People v. Roth (1964) 228 Cal.App.2d 522, 532.) Here, the sexual act alleged was penetration by a foreign or unknown object. In assessing the defendant’s state of mind, the jury may draw inferences from his conduct, including any words he has spoken, as well as the circumstances surrounding the commission of the act. (People v. Bradley (1993) 15 Cal.App.4th 1144, 1154, overruled on other grounds in People v. Rayford (1994) 9 Cal.4th 1, 21.)
Here, the defendant showed an intent to overcome the victim’s resistance by force when he pulled her hair and punched her in the eye. His intent to complete the sexual act was shown by his attempt to drag her into some bushes where they would be hidden, and by his ripping her blouse down the front and trying to move her arms so he could see her chest. His sexual intent was further shown by his comments to the victim to the effect that she would be his and he wanted her to be his girlfriend. His intent was further shown by the fact that he was carrying condoms in his pocket.
The fact that any of this evidence might also be susceptible to other inferences is immaterial to our review. On appeal we must accept the logical inferences that the jury drew from the evidence. (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)
Additionally, evidence of defendant’s prior sexual offense is circumstantial evidence of his intent here. (People v. James (2000) 81 Cal.App.4th 1343, 1358, fn. 9.) Combined with the other evidence of defendant’s intent, the evidence was sufficient for a reasonable jury to conclude defendant had the requisite intent when he assaulted the victim.
DISPOSITION
The judgment is affirmed.
We concur: RAYE, J., ROBIE, J.
“(a) If, during the pendency of an action and prior to judgment, a doubt arises in the mind of the judge as to the mental competence of the defendant, he or she shall state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent. . . . (b) If counsel informs the court that he or she believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendant's mental competence is to be determined in a hearing which is held pursuant to Sections 1368.1 and 1369. . . . (c) Except as provided in Section 1368.1, when an order for a hearing into the present mental competence of the defendant has been issued, all proceedings in the criminal prosecution shall be suspended until the question of the present mental competence of the defendant has been determined. If a jury has been impaneled and sworn to try the defendant, the jury shall be discharged only if it appears to the court that undue hardship to the jurors would result if the jury is retained on call. If the defendant is declared mentally incompetent, the jury shall be discharged.”