Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. No. FCR 208539
McGuiness, P.J.
After defendant Rasheed Loveless was found guilty of two counts of robbery in the second degree (Pen. Code, § 211 ), and in a separate proceeding, the court found true allegations of a sentence enhancement (§ 667.5, subd. (b)), defendant’s counsel declared a doubt about defendant’s competency to stand trial. The court suspended proceedings and appointed three experts to evaluate defendant. Based upon the experts’ reports, the court declared defendant competent and the proceedings were reinstated. The court denied defendant’s motion for a new trial and sentenced him to an aggregate term of five years in state prison. On appeal, defendant challenges the court’s adjudication that he was competent to stand trial. We affirm.
All further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
After defendant was convicted of robbery and the court held a bench trial on a sentencing enhancement, defendant was granted new counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118. Defendant’s new counsel declared a doubt as to defendant’s competency to stand trial and the court suspended the proceedings. (§ 1368.) Pursuant to section 1369, the court appointed three experts to examine defendant: Gregory Sokolov, M.D., Diplomate of the American Board of Psychiatry & Neurology with added qualifications in forensic psychiatry; Kathleen O’Meara, Ph.D., a licensed psychologist; and Harriet A. Lehman, Ph.D., a psychologist.
Before the competency hearing each expert issued two reports, one in 2004 and one in 2005. In the 2004 reports, Sokolov found defendant competent, while O’Meara and Lehman concluded defendant was not competent. In the 2005 reports, Sokolov again found defendant competent, and Lehman again found defendant was not competent. However, O’Meara had changed her opinion, and found defendant competent.
On August 12, 2005, both parties submitted the matter of defendant’s competency on the experts’ six reports. Neither party raised any objection to the reports, the qualifications of the experts, or requested an opportunity to call the experts as witnesses. The court found defendant competent and reinstated the proceedings.
Defendant moved for a new trial on the ground that his former counsel had failed to arrange for defendant to have a pretrial psychological evaluation. After a hearing, the court denied the motion for a new trial. The court sentenced defendant to an aggregate term of five years in state prison.
DISCUSSION
Defendant challenges the court’s adjudication of his competency to stand trial on various grounds, none of which warrants reversal.
“A person cannot be tried or adjudged to punishment while that person is mentally incompetent. [And, 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.” (§ 1367, subd. (a).) A “ ‘developmental disability’ means a disability that originates before an individual attains age 18, continues, or can be expected to continue, indefinitely and constitutes a substantial handicap for the individual, and shall not include other handicapping conditions that are solely physical in nature. As defined by the Director of Developmental Services, in consultation with the Superintendent of Public Instruction, this term shall include mental retardation, cerebral palsy, epilepsy and autism. This term shall also include handicapping conditions found to be closely related to mental retardation or to require treatment similar to that required for mentally retarded individuals, but shall not include other handicapping conditions that are solely physical in nature.” (§ 1370.1, subd. (a)(1)(H).)
Section 1369 sets forth the procedure by which the court should determine “whether based on a combination of all factors, including both psychiatric disorders and developmental disabilities, the defendant is competent to stand trial.” (People v. Leonard (2007) 40 Cal.4th 1370, 1392 (Leonard).) “If it is suspected the defendant is developmentally disabled, the court shall appoint the director of the regional center for the developmentally disabled established under Division 4.5 (commencing with Section 4500) of the Welfare and Institutions Code, or the designee of the director, to examine the defendant.” (§ 1369, subd. (a).) “[A]ppointment of the director of the regional center for the developmentally disabled (§ 1369, subd. (a)) is intended to ensure that a developmentally disabled defendant is evaluated by experts experienced in the field, which will enable the trier of fact to make an informed determination of the defendant’s competence to stand trial.” (Leonard, supra, 40 Cal.4th at p. 1391.)
In this case, at the time the trial court initially suspended the proceedings to resolve defendant’s competency, there was no evidence from which the court could or should have suspected that defendant suffered from the developmental disability of mental retardation. Defendant argues, however, that O’Meara’s 2004 report, assessing his total functional intelligent quotient (IQ) as 52, standing alone, required the court to appoint a regional director to perform an appropriate evaluation before ruling on his competency to stand trial. We disagree.
In her May 26, 2004, report, O’Meara found that defendant was mildly to moderately mentally retarded based, in part, on her administration of the Wechsler Abbreviated Scale of Intelligence, which is “a brief measurement of cognitive functioning.” Defendant obtained “a verbal I.Q. [intelligent quotient] of 55, a performance I.Q. of 56, and an overall intell[igent] quotient of 52.” “ ‘ “Mild” mental retardation is typically used to describe people with an IQ level of 50-55 to approximately 70. [Citation.]’ ” (In re Hawthorne (2005) 35 Cal.4th 40, 48.) However, “[e]xperts also agree that an IQ score below 70 may be anomalous as to an individual’s intellectual functioning and not indicative of mental impairment. [Citation.]” (Ibid.)
In subdivision (a)(1)(H) of section 1370.1, as well as other similar statutory provisions concerning mentally retarded individuals (see, e.g., § 1376), “the California Legislature has chosen not to include a numerical IQ score as part of the definition of ‘mentally retarded.’ ” (In re Hawthorne, supra, 35 Cal.4th at p. 48.) Also, the statutory scheme to determine a defendant’s competency, “makes no reference to one or another clinical test of intelligence, any more than it refers to a particular score as the cutoff point for mental retardation.” (People v. Superior Court (Vidal) (2007) 40 Cal.4th 999, 1012.)
We are not persuaded by defendant’s argument that his total IQ score of 52 was sufficient to raise a suspicion he was mentally retarded based upon O’Meara’s conclusion in her 2004 report that the IQ scores were genuine and it was extremely doubtful he could have faked these very poor scores. Defendant ignores O’Meara’s later 2005 report in which she expressly found at that time that defendant’s interview presentation and responses seemed to be higher than his previously tested IQ of 52. After the 2005 interview and without defendant’s knowledge, O’Meara monitored defendant’s interactions when he returned to his jail cell. She then discovered defendant functioning at a higher level that what he had displayed in the interview while he discussed with his fellow inmates his concerns about his interview performance and his need to speak with his attorney. O’Meara concluded that defendant was competent to stand trial in that he did appreciate the nature and purpose of the proceedings taken against him and he could cooperate rationally with his counsel if he chose to do so. Although O’Meara believed defendant was low functioning, she concluded he was very manipulative and for some unknown reason he was attempting to magnify his deficits. O’Meara’s 2005 observations and conclusions were consistent with Sokolov’s conclusions in both 2004 and 2005 that defendant was competent to stand trial, he was not suffering from mental retardation, he was exaggerating his inability to understand and participate in legal proceedings, and his conduct in jail was inconsistent with a mentally retarded inmate. On this record, the trial court could reasonably find that defendant’s reported IQ scores were not valid reflections of his intellectual functioning, and did not give rise to a suspicion that defendant might be developmentally disabled within the meaning of section 1370.1, subdivision (a)(1)(H). Consequently, the trial court did not err by failing to appoint a regional director before ruling on defendant’s competency to stand trial.
Additionally, even assuming the trial court should have appointed the regional director, reversal is not warranted “unless the error deprived [defendant] of a fair trial to determine his competency.” (Leonard, supra, 40 Cal.4th at p. 1390, see id. at p. 1392.) Defendant has not shown that the failure to appoint the regional director prejudicially affected the court’s competency adjudication. As noted, O’Meara and Sokolov, who evaluated defendant and determined he was competent to stand trial, considered the impact of both psychiatric disorders and any developmental disability of mental retardation. To the extent defendant challenges the experts’ failures to specify in their reports their qualifications or the methods by which they evaluated any developmental disability of mental retardation, those issues are forfeited because he failed to raise the objections at trial. (People v. Weaver (2001) 26 Cal.4th 876, 904; People v. Bolin (1998) 18 Cal.4th 297, 321.)
DISPOSITION
The judgment is affirmed.
We concur: Pollak, J., Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.