Opinion
>NOT TO BE PUBLISHED
Super. Ct. Nos. 04F09720, 04M00197
SIMS, Acting P.J.
Defendant Maurice Rogers was sentenced to three years in state prison after having been found in violation of the conditions of his probation. On appeal, he contends: (1) the trial court erred in finding him in violation of his probation for failure to enroll in a batterer’s treatment program, (2) the trial court’s failure to hold a competency hearing constituted a denial of due process and requires reversal, (3) his upper-term sentence violated the Sixth Amendment to the United States Constitution, and (4) the trial court erroneously imposed a “second” restitution fine at sentencing. We agree only with defendant’s last contention and modify the judgment accordingly.
BACKGROUND
Defendant was charged in case No. 04M00197 with misdemeanors for inflicting corporal injury on a spouse, false imprisonment, and resisting or delaying a peace officer.
On June 7, 2004, he entered a plea of no contest to false imprisonment and was placed on probation with the conditions, inter alia, that he complete a 52-week batterer’s treatment program, report to the probation officer as directed, and pay certain fines and fees. Defendant said he understood and agreed to these terms.
Defendant was arrested on November 6, 2004, in case No. 04F09720, and charged with possession for sale of cocaine base. He entered a plea of no contest to simple possession and was placed on probation with the conditions, inter alia, that he obey all laws, follow subsequently imposed conditions ordered by the court or probation officer, comply with all reasonable instructions given to him by the probation officer, report to the probation officer as directed, and pay certain fines and fees. Defendant was specifically told by the court that he was to obey all laws and court orders. Defendant stated he understood and accepted the terms and conditions.
Petitions for violation of probation were filed in both cases on April 18, 2005. Both petitions alleged defendant had violated the conditions of his probation by failing to “satisfactorily participate in a Batterer’s Treatment Program, as ordered by the Court and as directed by the Probation Officer.” The petitions also alleged defendant had violated the conditions of his probation by failing to report to the probation officer as directed and by failing to make payments on his fines as scheduled.
At the probation violation hearing, the probation officer testified that he reviewed the conditions of probation with defendant on February 15, 2005. Defendant told the officer that his misdemeanor case had been dismissed and he was not required to participate in a batterer’s treatment program. When the officer directed defendant to complete the program anyway, defendant agreed but said he “may take it back to court.” Defendant also signed an agreement to do the batterer’s treatment program, along with drug rehabilitation and an AIDS education program. Two days later, defendant came in again and said he thought his misdemeanor case had been dismissed. The probation officer showed defendant the records and defendant again agreed to enroll in a batterer’s treatment program, and again added that he “may hire an attorney and take it back to court.” Defendant did, in fact, file notices of appeal in both cases on February 18, 2005. The notices of appeal, however, were untimely. Defendant did not enroll in a batterer’s treatment program.
Defendant testified that his own copies of the court documents show that he pled to a traffic offense, not a violation of Penal Code section 236, and that he was not ordered to complete a batterer’s treatment program. He admitted that the intake probation officer told him he had to participate in the program and that if he failed to enroll in the program, he would be considered in violation of his probation. He also signed a document acknowledging that he had reviewed the conditions of probation. Nevertheless, he did not attend any classes because it “wasn’t the correct sentence.” Instead, he filed an appeal. Defendant also testified that he had been diagnosed with bipolar paranoid schizophrenia and was currently taking medication.
Undesignated statutory references are to the Penal Code.
After the hearing on the alleged violations of probation, the trial court found the evidence did not prove willful failure to meet with the probation officer or make scheduled fine payments. The trial court did, however, find the allegation that defendant had not participated in a batterer’s treatment program true and, accordingly, revoked both grants of probation. The court elucidated that, although defendant had “some confusion about this,” the court was satisfied that defendant was informed by the court and by his attorney that he was required to participate in a batterer’s treatment program. Moreover, even assuming defendant had at some point early on believed that he was not required to participate in the program, defendant was repeatedly re-informed of the requirement and even attempted to appeal the issue.
The trial court ordered a supplemental probation report and scheduled the matter for sentencing for June 10, 2005. At the June 10, 2005, hearing, the trial court indicated it would not be sentencing defendant that day because, after reading the probation report, the court did not agree with the recommendation that defendant be reinstated on probation. Instead, the court stated it was concerned about defendant’s history of violence and his unwillingness to cooperate with the probation department and, therefore, planned to refer defendant to the Department of Corrections and Rehabilitation for a diagnostic evaluation. (§ 1203.03, subd. (a).) The court then permitted counsel to comment. Defense counsel stated that defendant continued to maintain that he did not believe he pled no contest to false imprisonment and she did not believe he understood what happened at the violation of probation hearing because he indicated he still believed there were charges pending. Counsel stated that, after speaking with defendant over the previous 20 minutes, it had been her intention to declare a doubt as to his competency pursuant to section 1368.
The trial court responded as follows: “Let me do this: Let me suggest, absent your objection on this particular point with respect to your interest in a 1368 inquiry, that you hold that. That you -- what I’m going to do is, as I said, direct him to the Department of Corrections for a diagnostic evaluation. [¶] I will specifically ask that they evaluate him with respect to 1368 of the Penal Code as well. That’s not orthodox evaluation for that purpose. I would like to see their report. At the time that comes back to me, we can then formally inquire into a 1368 status for the defendant if that seems appropriate to you at that time. [¶] Would that be acceptable?” Defense counsel responded that she “like[d] that suggestion, yes.”
The court placed defendant temporarily in a diagnostic facility for a study and evaluation. (§ 1203.03.) It did not, however, enter the order for defendant to be evaluated for competency pursuant to section 1368.
During the evaluation, defendant reported that he had been diagnosed with paranoid schizophrenia at the age of 17 but he had not been taking any medication for the past year and was doing fine without the medication. The diagnostic evaluation stated that, although there was evidence of paranoid delusions, defendant was fully oriented, his memory was unimpaired, and his stream of thought was normal. Although the evaluator found defendant posed “no significant risk for violence at this time,” he considered defendant “irresponsible regarding his duties as a convicted felon, and a poor candidate for probation and a risk to society,” and concluded by recommending incarceration.
After defendant returned from the diagnostic facility, the court asked counsel if there was any legal cause why judgment should not be pronounced. Counsel responded that there was not and the court proceeded with sentencing. The trial court denied probation and sentenced defendant to state prison for the upper term of three years for possession of cocaine base in case No. 04F09720. The court imposed the upper term based on the fact that defendant had “engaged in violent conduct in the past which indicates a danger to the community,” defendant had prior convictions of increasing seriousness, defendant was on probation at the time he committed the offense, and defendant’s prior performance on probation had been unsatisfactory. The court terminated defendant’s probation in the misdemeanor case (case No. 04M00197) without imposing sentence.
DISCUSSION
I
Misdemeanor Appeal
As an initial matter, we note that defendant’s notice of appeal purports to appeal from the judgments in both case No. 04F09780 (the felony) and case No. 04M00197 (the misdemeanor). As appellate counsel acknowledges, while this court has jurisdiction to review appeals in felony matters (§ 1235), the appellate division of the superior court is vested with appellate jurisdiction over appealable orders from misdemeanor cases (§ 1466, subd. (2)(a)). Therefore, in the exercise of our inherent power to insure the orderly administration of justice, we shall transfer the misdemeanor matter to the appellate division of the superior court for disposition of the appeal. (See People v. Nickerson (2005) 128 Cal.App.4th 33, 40; Gov. Code, § 68915.)
Appellate counsel also recognizes in the statement of appealability that the order in the misdemeanor case does not appear to be appealable pursuant to section 1237, since the trial court terminated probation without imposing sentence. We shall, however, leave the issue of appealability of the order to the appellate division of the superior court.
II
Violation of Probation
The trial court found defendant in violation of his felony probation for failure to enroll in a batterer’s treatment program. Defendant argues that because participation in a batterer’s treatment program was not a condition of his felony probation, it was error to find him in violation of probation. We disagree.
Defendant’s failure to comply with the court ordered terms of his misdemeanor probation, directly violated the terms of his felony probation. Defendant was to successfully complete a batterer’s treatment program as a specific condition of his misdemeanor probation. As a condition of his felony probation, he was required to obey all laws and court orders, follow subsequently imposed conditions ordered by the court or probation officer, and comply with all reasonable instructions given to him by the probation officer.
By failing to “satisfactorily participate in a Batterer’s Treatment Program, as ordered by the Court and as directed by the Probation Officer,” as alleged in the petition for violation of probation the court found true, defendant violated his felony probation condition that he obey all laws and court orders. Accordingly, there was substantial evidence to support the trial court’s finding that defendant violated the terms of his probation in the felony case (case No. 04F09720).
III
Competency Hearing
Defendant contends there was substantial evidence before the trial court to indicate he was not competent to stand trial and, therefore, the trial court erred by not declaring a doubt as to his competence pursuant to section 1368, subdivision (a). He contends we must reverse the judgment because the trial court’s failure to hold a competency hearing constituted a denial of due process as a matter of law. We disagree.
“A defendant is mentally incompetent . . . if, as a result of mental disorder . . ., 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).)
State law and federal due process bar the trial or conviction of a mentally incompetent defendant. (People v. Rogers (2006) 39 Cal.4th 826, 846 (Rogers).) Both “require a trial judge to suspend trial proceedings and conduct a competency hearing whenever the court is presented with substantial evidence of incompetence, that is, evidence that raises a reasonable or bona fide doubt concerning the defendant’s competence to stand trial. [Citations.] The court’s duty to conduct a competency hearing may arise at any time prior to judgment. [Citations.] Evidence of incompetence may emanate from several sources, including the defendant’s demeanor, irrational behavior, and prior mental evaluations. [Citations.]” (Id. at p. 847.)
“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.” (§ 1368, subd. (a).) If defense counsel informs the court of a belief that defendant is or may be incompetent, the court shall order the question of the defendant’s mental competence determined at a formal hearing held pursuant to sections 1368.1 and 1369. (§ 1368, subd. (b).) The court may order a competency hearing even if counsel believes defendant is competent. (§ 1368, subd. (b).) When a trial court has ordered a hearing to determine defendant’s competence, it must suspend all proceedings in the criminal prosecution until that determination has been made. (§ 1368, subd. (c).) Failure to do so renders any subsequent judgment a nullity, as an act in excess of jurisdiction. (People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 69-71.)
The failure to declare a doubt and conduct a hearing when there is substantial evidence of incompetence also requires reversal of the judgment of conviction. (Rogers, supra, 39 Cal.4th at p. 847.) “‘A trial court is required to conduct a competence hearing, sua sponte if necessary, whenever there is substantial evidence of mental incompetence. [Citations.] Substantial evidence for these purposes is evidence that raises a reasonable doubt on the issue. [Citation.]’” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1110, quoting People v. Howard (1992) 1 Cal.4th 1132, 1163.) “This doubt which triggers the obligation of the trial judge to order a hearing on present sanity is not a subjective one but rather a doubt to be determined objectively from the record.” (People v. Sundberg (1981) 124 Cal.App.3d 944, 955-956; People v. Tomas (1977) 74 Cal.App.3d 75, 90.)
Here, there was no expression of judicial doubt as to competency, nor was there substantial evidence of incompetency, so as to require the commencement of competency proceedings.
The trial court in this case did not make any declaration of doubt as to defendant’s competence pursuant to section 1368, subdivision (a), or order a formal hearing to determine defendant’s competence. After reading the probation department’s recommendation for reinstatement on probation, the trial court decided to continue sentencing and refer defendant to the Department of Corrections and Rehabilitation for a 90-day diagnostic evaluation. (§ 1203.03.) When defense counsel expressed some reservations about defendant’s competence, the court stated it would request a competency evaluation be performed along with the diagnostic evaluation and, “[a]t the time that comes back to me, we can then formally inquire into a 1368 status for the defendant if that seems appropriate to you at that time.” The order for the competency evaluation, however, was not entered.
Although the court stated that it would like to see the results of a competency evaluation, it did not go so far as to express concern over defendant’s competency. “A trial court’s expression of preliminary concerns about competency does not require the commencement of competency proceedings. [Citation.]” (People v. Price (1991) 1 Cal.4th 324, 396-397.) Thus, there was not a judicial declaration of doubt regarding defendant’s competence pursuant 1368 to trigger the requirement of a formal hearing. (See People v. Johnson (1991) 235 Cal.App.3d 1157, 1164-1166.)
Nor was there substantial evidence of incompetence to compel a formal competency inquiry. Defendant first points to his mental illness as an indication of his incompetence. Defendant had been ordered to take any prescribed medication as a condition of his release when placed on probation in the misdemeanor case and he informed the court that he had been diagnosed with paranoid schizophrenia when he was granted probation in the felony matter. But “the mere presence of a mental illness does not mean [defendant] was unable to understand the proceedings or assist in his own defense. [Citation.]” (People v. Smith (2003) 110 Cal.App.4th 492, 502.)
Defendant next points to his confusion regarding the outcome of his cases and his continued position that he was not ordered by the court to complete a batterer’s treatment program as evidence of his incompetence. We disagree that defendant’s testimony provided a “clear indication” of defendant’s confusion or evidence of his inability to understand the nature of the proceedings.
When asked by his counsel what he understood with respect to his misdemeanor case, defendant provided the following response: “January of ‘04 I was arrested for domestic violence. I was charged with several charges of corporal injuries, spouse abuse, child endangerment, damaging the power lines, resisting arrest, invading police (sic) privacy, and they released me my first court date to do court at home. [¶] I then went to court February and March. In April I missed a court date. I was picked up driving in my car. I was charged with the same charges, also a warrant for not reporting in court. I pleaded not guilty again also in court. [¶] The district attorney was offering the same deal, which was four years in the state penitentiary. It was an eight-year maximum sentence. Sadia (phonetic) Mitchell was her name. It was Sadia Rogers, her name was Sadia Mitchell. She never came to court. She never pressed charges, and the district attorney then dropped the case and wanted me to plead either not guilty or guilty to driving while my license was suspended. My license was suspended. I then pleaded guilty to my license suspended. He then dismissed all the charges and he ordered me to go to Bicentennial, which I guess I had a warrant for at the time --”
The Carol Miller Justice Center, located on Bicentennial Circle, houses those divisions within the Sacramento Superior Court that hear traffic, small claims, and unlawful detainer cases.
Defendant’s confusion regarding the details of his criminal and court history may be more likely a result of his actual history than of any mental disability. Defendant was charged in the misdemeanor case (case No. 04M00197) on January 6, 2004, with inflicting corporal injury on a spouse, false imprisonment, and resisting or delaying a peace officer. Defendant was released on his own recognizance and the district attorney agreed not to file any new charges. According to the CLETS (California Law Enforcement Telecommunications System) printout, however, defendant was also originally arrested and arraigned on charges for damaging power lines regarding this same incident.
Defendant did, in fact, fail to appear in court on April 28, 2004, and a bench warrant was issued. Defendant was then arrested and arraigned on charges for inflicting corporal injury on a spouse, false imprisonment and resisting or obstructing a peace officer, a few months later on May 19, 2004. Defendant entered his plea of no contest to inflicting corporal injury on a spouse in the misdemeanor case (case No. 04M00197) on June 7, 2004.
On August 6, 2004, defendant was arrested and arraigned on charges of driving on a suspended license, providing false identification to an officer, inflicting corporal injury on a spouse, damaging power lines, and child cruelty. On August 26, 2004, defendant was arrested and arraigned again on charges of inflicting corporal injury on a spouse, damaging power lines, and child cruelty. Also in August 2004, defendant was convicted for driving on a suspended license and had a charge of providing false identification to an officer dismissed. Defendant was arrested in the instant case (case No. 04F09720) for possession of cocaine base on November 6, 2004.
In light of this dense and cyclical arrest history, defendant’s somewhat confused explanation of what precisely happened in his misdemeanor case was not, as he now contends, substantial evidence of his mental incompetence.
Defendant also emphasizes defense counsel’s expression of concern regarding his competence at the June 10, 2005, hearing. Defense counsel did not, however, present substantial evidence of incompetency. Counsel simply restated that defendant remained unclear, despite her attempts at clarification, about the former proceedings. Counsel stated that defendant continued to maintain that he did not believe he pled no contest to false imprisonment, she did not believe he understood what happened at the violation of probation hearing because he indicated he still believed there were charges pending, and that, after speaking with defendant over the previous 20 minutes, it had been her intention to declare a doubt as to his competency pursuant to section 1368. “[A] trial court is not required to order a competency hearing based on counsel’s perception that his client may be incompetent.” (People v. Frye (1998) 18 Cal.4th 894, 953.) Defense counsel’s opinion alone is insufficient to trigger a competency hearing; defense counsel’s opinion, however, is relevant in determining whether there is substantial evidence of incompetence. (People v. Rodrigues, supra, 8 Cal.4th at pp. 1111-1112; People v. Howard, supra, 1 Cal.4th at pp. 1163-1164.)
Finally, we note that the diagnostic evaluation that was ordered and returned to the court did not contain substantial evidence of incompetency so as to trigger the formal inquiry requirement at that time. The diagnostic evaluation provided the following assessment: “The defendant was alert and cooperative during the interview. He was appropriately and neatly groomed. He was fully oriented, and his memory was unimpaired. There was no evidence of hallucinations, however, there was evidence of paranoid delusions. His affect was constricted. His mood was normal. His speech was clear and fluent. His stream of thought was within normal limits. His fund of general information was normal. The defendant’s social judgment and abstract judgment were immature and impulsive. Behavior abnormalities were not noted. He appeared to have no significant risk for suicidality at this time, and no significant risk for violence at this time.”
That defendant is immature, schizophrenic, or even dangerous, does not constitute substantial evidence of his inability to stand trial. (People v. Laudermilk (1967) 67 Cal.2d 272, 285.) The diagnostic report did not address itself to the issue of defendant’s competence to understand the nature of the proceedings and assist in his defense, and there was nothing in the report to suggest incompetence.
In sum, we conclude that the trial court was at no point required to order a formal inquiry be conducted into defendant’s competency. Thus, there was no abuse of discretion in proceeding without performing a competency hearing.
IV
Blakely Error
The trial court imposed the upper term of three years for possession of cocaine base based on its finding that defendant “engaged in violent conduct in the past which indicates a danger to the community,” his prior convictions were of increasing seriousness, he was on probation at the time he committed the offense, and his prior performance on probation had been unsatisfactory. (Cal. Rules of Court, rule 4.421(b)(1) & (2).) Defendant claims this upper-term sentence violated the Sixth Amendment to the United States Constitution as set forth in Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely).
Applying the Sixth and Fourteenth Amendments to the United States Constitution, the United States Supreme Court held in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490 [147 L.Ed.2d at p. 455], italics added.) For this purpose, the “statutory maximum” is the maximum sentence the trial court may impose based solely on the facts reflected in the jury verdict or admitted by the defendant. (Blakely, supra, 542 U.S. at p. 303 [159 L.Ed.2d at p. 413].)
In Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856], the United States Supreme Court held that under Blakely and other decisions, California’s determinate sentencing law “violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments” to the extent the law allows a judge to impose an upper term sentence “based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Cunningham, at p. ___ [166 L.Ed.2d at p. 864], overruling People v. Black (2005) 35 Cal.4th 1238(Black I) on this point, vacated in Black v. California (2007) ___ U.S. ___ [167 L.Ed.2d 36].)
On remand from the United States Supreme Court, for reconsideration in light of Cunningham, the California Supreme Court recently held that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (People v. Black (July 19, 2007, S126182) ___ Cal.4th ___ [p. 17] (Black II).) The “prior conviction” exception “include[s] not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions.” (Id. at [p. 22].)
Here, one of the facts upon which the trial court relied in imposing the upper term was that defendant’s prior convictions were of increasing seriousness. Moreover, as found by the trial court and supported by the record, defendant was on probation when he committed his felony offense, so his prior performance on probation or parole was unsatisfactory.
These facts, relied upon by the trial court, did not have to be submitted to a jury. Because these aggravating factors made defendant eligible for the upper term, the trial court did not violate defendant’s right to a jury trial in imposing the upper term.
V
Restitution Fine
When the court granted probation, it imposed a $200 restitution fine. When the court sentenced defendant to state prison, it imposed a $600 restitution fine and a $600 parole fine. Defendant contends, and the People concede, the trial court erred in imposing a $600 restitution fine at sentencing. We accept the concession.
The trial court had no authority to impose a second restitution fine of $600 or to otherwise increase the amount previously imposed; the $200 restitution fine survives revocation of probation. (People v. Arata (2004) 118 Cal.App.4th 195, 201-203; People v. Johnson (2003) 114 Cal.App.4th 284, 306-307; People v. Chambers (1998) 65 Cal.App.4th 819, 822, 823; People v. Downey (2000) 82 Cal.App.4th 899, 921.) Accordingly, we shall modify the judgment to reduce the restitution fine to $200 (§ 1202.4, subd. (b)) and reduce the parole revocation fine to $200 (§ 1202.45).
DISPOSITION
The appeal in Sacramento County case No. 04M00197 is ordered transferred to the appellate division of the Sacramento County Superior Court. The sentence imposed in Sacramento County case No. 04F09720 is modified to reduce the $600 restitution fine to $200 (§ 1202.4, subd. (b)) and to reduce the $600 parole revocation fine to $200 (§ 1202.45). As modified, the judgment in case No. 04F09720 is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: BUTZ, J., CANTIL-SAKAUYE, J.