Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. W. Robert Fawke, Judge. Super.Ct.No. FSB051948
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Jeffrey J. Koch, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
McKinster, J.
Glenn David O’Neal, defendant and appellant (hereafter defendant), raises various claims of error in this appeal from the judgment entered after the trial court found him guilty of two counts of first degree burglary in violation of Penal Code section 459. We only address his claim that in finding him competent to stand trial, the trial court failed to comply with the requirements of sections 1368 and 1369. The Attorney General concedes the error, and we view that concession as appropriate. Because the error requires reversal of the judgment, it renders defendant’s remaining claims moot.
All further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
During a trial readiness conference on April 14, 2006, defendant’s attorney expressed doubt about defendant’s competence to stand trial. Although defendant objected, the trial court suspended criminal proceedings and appointed a psychologist to evaluate defendant. The psychologist (Suiter) submitted a written evaluation in which he found defendant competent. Despite the report, the trial court at the competency hearing again expressed doubt about defendant’s competence to stand trial. Therefore, the court appointed a second psychologist (Lawrence) to evaluate defendant, and ordered that the criminal prosecution remain suspended in accordance with section 1368. At the next, or continued, competency hearing, on June 23, 2006, the attorneys reviewed “the report,” and submitted the issue of defendant’s competence to stand trial on “the report.” Based on “the report,” the trial court, in turn, found defendant competent to stand trial. The competency proceedings all occurred over defendant’s strenuous objections.
The Honorable John N. Martin ordered the competency evaluation, but the Honorable W. Robert Fawke presided at the competency hearing and all subsequent proceedings in this case.
The clerk’s minutes of the hearing in question include various stipulations and waivers that are not reflected in the reporter’s transcript of that hearing. “As a general rule, a record that is in conflict will be harmonized if possible. [Citation.] If it cannot be harmonized, whether one portion of the record should prevail as against contrary statements in another portion of the record will depend on the circumstances of each particular case. [Citation.]” (People v. Harrison (2005) 35 Cal.4th 208, 226, citing People v. Smith (1983) 33 Cal.3d 596, 599; cf. People v. Mesa (1975) 14 Cal.3d 466, 471 [“a discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably the result of clerical error”].) The discrepancies at issue here cannot be harmonized. In assessing which transcript is the most reliable account of what occurred, we begin with the fact that the clerk’s minutes of the hearing include a notation that the minutes were “updated by Rosa Leedham.” Jill Merendino is the clerk initially identified in the minutes and presumably is the clerk who was in the courtroom during the hearing. The minutes do not disclose the nature of the update or explain why someone other than the actual courtroom clerk would update the minutes. Similar discrepancies exist in the clerk’s minutes of the subsequent hearing on June 23, 2006, and similar issues regarding the reliability of those minutes also exist. Under these circumstances we conclude the reporter’s transcript is the more reliable source and should prevail over the clerk’s minutes.
Defendant waived his right to a jury and represented himself in the subsequent court trial. The trial court found defendant guilty as charged of both burglaries and sentenced him to serve 17 years eight months in prison after defendant admitted the truth of prior serious felony and prison term allegations.
DISCUSSION
Because defendant did not seek an incompetency determination, and objected to suspending the criminal proceedings for that purpose, the trial court at the outset was required under section 1369, subdivision (a), to appoint two mental health professionals to evaluate defendant’s competence to stand trial. The trial court appointed only one. That error alone requires us to reverse the judgment because defendant’s competence was not assessed in accordance with the statutory procedure.
Section 1369, subdivision (a) provides, in pertinent part, that, “The court shall appoint a psychiatrist or licensed psychologist, and any other expert the court may deem appropriate, to examine the defendant. In any case where the defendant or the defendant’s counsel informs the court that the defendant is not seeking a finding of mental incompetence, the court shall appoint two psychiatrists, licensed psychologists, or a combination thereof.”
The trial court’s error was not corrected by the later appointment of another expert to evaluate defendant’s competence to stand trial because there is nothing in the record that indicates the second evaluation actually occurred. In fact, the record suggests the opposite. In reaching this conclusion we first note that at the continued competency hearing, the attorneys and the trial court all referred to the Suiter report, which is the original report prepared by the first psychologist the court appointed. The record does not contain a report from Dr. Lawrence, the second psychologist the court appointed to evaluate defendant. It does not appear from the record that defendant was evaluated by anyone other than Dr. Suiter, despite the statutory dictate and the trial court’s order.
The record does include an “addendum report” from Dr. Suiter that pertains to an evaluation conducted on September 14, 2006, in response to the trial court’s request that defendant be reexamined before sentencing. That addendum report is not at issue in this appeal.
In addition, defendant has a right under section 1369 to a jury trial on the issue of his competency. The record does not indicate that defendant or his attorney expressly waived that right. (People v. Masterson (1994) 8 Cal.4th 965, 974 [because the right to a jury in a competency proceeding is purely statutory, it may be waived by counsel].)
Section 1369 states in pertinent part that, “A trial by court or jury of the question of mental competence shall proceed in the following order: . . . ”
For each of the reasons noted we must reverse the judgment and remand the matter to the trial court for a new competency hearing because “[t]rial of an incompetent defendant violates the due process clause of the Fourteenth Amendment to the United States Constitution [citation] and article I, section 15 of the California Constitution.” (People v. Hayes (1999) 21 Cal.4th 1211, 1281, citing Godinez v. Moran (1993) 509 U.S. 389, 396 [113 S.Ct. 2680, 2685, 125 L.Ed.2d 321]; see Pate v. Robinson (1966) 383 U.S. 375, 378 [86 S.Ct. 836, 838, 15 L.Ed.2d 815].)
DISPOSITION
The judgment is reversed, and the matter is remanded to the trial court for a new competency hearing, and when appropriate, a new trial.
We concur: Ramirez, P.J., King, J.