Opinion
C074422
03-08-2017
THE PEOPLE, Plaintiff and Respondent, v. ELVERTIS JOHNSON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 07F00432)
Charged with bank robbery, the trial court suspended proceedings to assess defendant Elvertis Johnson's mental competence to stand trial. A jury determined defendant was competent, but after proceedings were reinstituted defendant's new counsel again expressed concern about defendant's competence. The trial court suspended proceedings again and ordered new psychiatric evaluations. In 2010, after comparing the former and new evaluation reports, the trial court concluded there had been no substantial change warranting another competency trial. Later, in 2011, when defendant's counsel reported defendant would not speak to him or look at him, the trial court concluded defendant was feigning incompetence and refused to suspend proceedings.
A jury convicted defendant of second degree robbery and unlawful possession of a firearm and found he was sane when he committed the crimes. The trial court sentenced defendant to an aggregate determinate term of 20 years in prison plus an indeterminate term of 50 years to life.
Defendant now contends (1) the trial court acted in excess of its jurisdiction and violated due process in 2010 by not holding another jury trial to determine his competence, and (2) it denied him due process in 2011 by not suspending proceedings to obtain another full competency evaluation.
Finding no merit in defendant's contentions, we will affirm the judgment.
BACKGROUND
Defendant robbed a bank in January 2007 and was apprehended following a high-speed car chase. Police recovered the stolen cash and a shotgun from the wrecked vehicle. Defendant made a detailed confession. He had served prison time for numerous other crimes, including nine other robberies.
Defendant's trial counsel raised a question about defendant's competence to stand trial in September 2007. The trial court suspended proceedings and appointed mental health professionals to evaluate defendant's competence under Penal Code section 1367 et seq.
Undesignated statutory references are to the Penal Code. --------
There was expert evidence defendant was incompetent due to psychosis but one expert found he was competent in spite of schizoaffective disorder, antisocial personality disorder and polysubstance abuse. After hearing testimony from the experts and other relevant evidence for five days and deliberating on a sixth day, a jury determined defendant was competent to stand trial. Defendant thereafter entered a plea of not guilty by reason of insanity.
Trial dates were set, vacated and re-set seven times before new defense counsel expressed concerns about defendant's competence in April 2010. The court suspended proceedings and, with input from counsel, assigned new doctors to examine defendant and assess his competence to stand trial. The prosecutor did not object. Six months later, after the psychiatric evaluations had been submitted to the trial court but before a competency trial, the prosecutor moved to set aside the suspension and move forward with the robbery trial. Defendant argued the prosecutor waived any objection by not making the objection when proceedings were first suspended, but the trial court disagreed, noting that defendant cited no authority on point.
Defense counsel asserted that the new psychiatric evaluations justified a second competency trial. But the trial court compared the expert reports from 2008 to those from 2010, and concluded the thorough 2010 evaluation identified the very same issues as all the earlier evaluations -- including defendant's report of hearing voices and thinking the KGB was chasing him -- but it also included new objective testing revealing a 72 percent likelihood that defendant was malingering. The report upon which the trial court relied was prepared by Professor Jessica Ferranti, M.D., a psychiatrist who spent more than two hours interviewing defendant. Defendant told the psychiatrist he had never had a job and had spent most of his life in prison, including a recent stint for another bank robbery. Defendant admitted having been an inpatient in a psychiatric hospital for competency restoration before. The psychiatrist questioned defendant extensively about his knowledge of the case and court procedures and said defendant demonstrated knowledge of the case, the charges, the court participants and their roles and the way to help his lawyer defend him ("[t]ell him as best I can what I did"). The Miller Forensic Assessment of Symptoms Test established a 72 percent probability defendant was malingering some psychiatric symptoms. In light of those findings and a thorough review of the other expert reports and the defendant's extensive criminal history, Dr. Ferranti concluded defendant met the criteria for several mental disorders but was competent to stand trial. Based on the written reports and the court's own observations of defendant, the court concluded there was no substantial change of circumstances justifying a second competency trial. The trial court lifted the stay and set a date for the robbery trial.
In the spring of 2011, before the scheduled robbery trial, defense counsel reported that his client refused to talk to him or even look at him. The trial court responded that, having seen defendant over the course of time, it was confident the perceived incompetence was feigned. The trial court did not stay the proceedings.
In 2013, a jury found defendant guilty on two counts of second degree robbery and one count of unlawful possession of a firearm. The jury also found true an allegation that defendant personally used a firearm in the commission of the robbery. After three more days of trial, the jury found defendant was sane when he committed the crimes. The trial court sentenced defendant to an aggregate determinate term of 20 years in prison plus an indeterminate term of 50 years to life.
Additional facts are included in the discussion as relevant to the contentions on appeal.
DISCUSSION
I
Defendant contends the trial court acted in excess of its jurisdiction and violated due process in 2010 by not holding another jury trial to determine his competence.
To conduct a criminal trial while the defendant is legally incompetent deprives the defendant of his constitutionals right to a fair trial and to due process. (Pate v. Robinson (1966) 383 U.S. 375, 385 [15 L.Ed.2d 815, 822].) These rights have been codified in section 1367 et seq. (People v. Ary (2004) 118 Cal.App.4th 1016, 1020.) Specifically, "A person cannot be tried or adjudged to punishment . . . while that person is mentally incompetent. A defendant is mentally incompetent for purposes of this chapter 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." (§ 1367, subd. (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," the court must follow specified procedures, including suspending proceedings and holding a hearing. (§ 1368.)
However, when, as here, a competency trial has already been held and a jury has already found a defendant competent, a trial court need not hold another competency trial unless it is presented with evidence of a substantial change in circumstances casting doubt on the validity of that prior finding. (People v. Jones (1991) 53 Cal.3d 1115, 1153.) It is for the trial court, not a jury, to determine whether there has been a substantial change in circumstances warranting another competency trial, and we review the trial court's decision on that issue for abuse of discretion. (People v. Ramos (2004) 34 Cal.4th 494, 507.)
Defendant argues that once the trial court suspended proceedings, it lacked jurisdiction to do anything other than conduct a trial regarding competency. But the authorities cited by defendant did not involve circumstances, like here, where a jury had already determined defendant's competence. (See People v. Pennington (1967) 66 Cal.2d 508, 521; People v. Marks (1988) 45 Cal.3d 1335, 1339-1340.) Under these circumstances, the trial court had discretion to decide whether to order a second hearing. (People v. Jones, supra, 53 Cal.3d at pp. 1152-1154; see also People v. Marshall (1997) 15 Cal.4th 1, 33 [second competency hearing not required in the absence of a substantial change of circumstances or new evidence].)
It is true that the trial court suspended proceedings and ordered expert reports. But once the reports were received, and upon motion by the People, the trial court determined there was no change in circumstances. The trial court had the authority to rescind its prior suspension order based on the jury's prior determination of competence and the expert evidence that there was no change.
Defendant cites In re John Z. (2014) 223 Cal.App.4th 1046 for the proposition that a court is powerless to proceed against a criminal defendant once it has suspended proceedings. But that case is different. It involved the competency of a juvenile defendant and proceedings under Welfare & Institutions Code section 709. (In re John Z., supra, 223 Cal.App.4th at p. 1048.) Defense counsel raised a doubt as to the minor's competence but then reached a plea agreement and asked to withdraw the doubt. (Id. at pp. 1048-1049.) The Court of Appeal held the trial court could not allow defense counsel to withdraw her doubt and could not make a competency determination without expert input. (Id. at p. 1058.) In contrast, the trial court in this case held a full competency trial and a jury determined defendant was competent. The trial court also reviewed expert reports (former and current) and determined there was no change justifying another trial.
None of the cases cited by defendant stands for the proposition that a trial court is bound by its suspension of proceedings to conduct a full competency trial. The trial court took defense counsel's concerns seriously and ordered another full round of testing, then looked carefully in the resulting reports for a substantial change in circumstances. We conclude the trial court fulfilled its obligation to protect defendant's statutory and constitutional rights in October 2010.
II
Defendant also contends the trial court denied him due process in 2011 by not suspending proceedings to obtain another full competency evaluation.
In 2011, the trial court once again reviewed the record and expert reports, and it also relied on its own observations of defendant over a significant period of time. The trial court observed that defendant "had gone from someone who apparently could speak with people, with his doctors, attorneys, what have you, to suddenly someone who just stares at the ground." The trial court was particularly persuaded by the earlier report of the expert who stated there was a 72 percent probability that defendant was malingering. In the trial court's view, appellant was intelligent enough to realize that not talking to his lawyer might help prove inability to assist in his defense. Because the trial court is in a position to observe defendant, we give deference to its findings. (People v. Marshall, supra, 15 Cal.4th at p. 33.)
Defendant notes that in addition to the two 2010 expert reports finding him incompetent, the fact that he was not communicating with his lawyer was itself substantial evidence warranting another competency hearing. He adds that in any event, although expert opinions are relevant to a competency determination, they do not obviate the need for a hearing when there has been a significant change in the defendant's condition, citing Maxwell v. Roe (9th Cir. 2010) 606 F.3d 561, 572, and de Kaplany v. Enomoto (9th Cir. 1976) 540 F.2d 975. But the trial court found defendant's conduct was feigned and there was no change in circumstances. Defendant has presented no basis for us to conclude that the trial court abused its discretion.
DISPOSITION
The judgment is affirmed.
/S/_________
MAURO, J. We concur: /S/_________
HULL, Acting P. J. /S/_________
ROBIE, J.