Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. NA080124 Tomson T. Ong and Jesse I. Rodriguez, Judges.
Tracy Gatlin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Theresa A. Patterson and Elaine F. Tumonis, Deputy Attorneys General, for Plaintiff and Respondent.
CHANEY, J.
Rodney Ross appeals from the judgment entered after a jury convicted him of robbery, petty theft and resisting, obstructing or delaying a peace officer. He contends that the trial court erred when it found him competent to stand trial. Because the court’s finding of competency is supported by substantial evidence, we uphold it.
Ross also contends, and the People concede, that he could not be convicted properly of both robbery and petty theft. These convictions are based on the same course of conduct. Petty theft is a lesser, necessarily included offense of robbery. Accordingly, we reverse the petty theft conviction.
BACKGROUND
I. Competency Determination
On February 9, 2009, the Los Angeles County District Attorney’s Office filed an information charging Ross with second degree robbery (Pen. Code, § 211; count 1), petty theft with priors (§§ 484, subd. (a) & 666; count 2), and resisting, obstructing or delaying a peace officer (§ 148, subd. (a)(1); count 3). The information included various special allegations about Ross’s prior convictions for robbery, grand theft (§ 487, subd. (a)) and petty theft with a prior.
Further statutory references are to the Penal Code.
At a pretrial hearing on March 30, 2009, the trial court adjourned the criminal proceedings after counsel declared a doubt about Ross’s mental competence under section 1368. The court concurred with counsel’s declaration of doubt, and appointed Drs. Ronald Markman and Ronald Fairbanks to examine Ross and evaluate his competence. The experts testified at a June 24, 2009 hearing, and the parties stipulated that the court could review the experts’ reports.
We granted Ross’s request that this court take judicial notice of these two psychiatric reports.
Dr. Markman evaluated Ross on April 13, 2009, and thereafter concluded that Ross was incompetent to stand trial. During the interview, Ross answered some of Dr. Markman’s questions. When asked about his arrest, he denied knowing anything about the robbery. He stated that he did not know his attorney and had not talked to anyone. He explained that the police had placed him in the hospital, but he wanted to leave and go to his mother’s home. He asked Dr. Markman to call his sister and ask her to pick him up. Ross told Dr. Markman that he had an associate’s degree (A.A.) in business.
Ross refused to provide other information, such as his date and place of birth. Dr. Markman ended the evaluation after about an hour “because of the nature of [Ross’s] behavior and his reaction and his reluctance to cooperate.” Dr. Markman explained that Ross “walked away from the interview a couple of times and had to be returned by deputies and ultimately became mute and wouldn’t respond to any of [Dr. Markman’s] questions” or make eye contact with Dr. Markman. Ross acted “as if [Dr. Markman] wasn’t there.”
Dr. Markman spoke with “psychiatric personnel” at the jail and learned that Ross “had been prescribed a major tranquilizer, ” Risperdal, but had declined to take it. Dr. Markman stated that Risperdal is used “to get rid of hallucinations, ” delusions and other “psychotic symptoms.” Ross told Dr. Markman that while “out of custody he had been taking Wellbutrin, an antidepressant, and Seroquel, a major tranquilizer, ” but in custody “he was not being given medication that he needed.” Based on his evaluation, Dr. Markman stated a “preliminary diagnosis” for Ross of “either psychosis nos meaning not otherwise stated or an underlying schizophrenia.”
Dr. Markman found that Ross had an “intellectual awareness and understanding of the charges and the criminal proceedings” and could “provide information.” He concluded that Ross was incompetent, however, based on his opinion that Ross had an “emotional imbalance or [an] emotional instability [that] rendered it unlikely that he could concentrate and cooperate in the courtroom and cooperate in a rational manner with his attorney.” Dr. Markman had some question about whether Ross was malingering or feigning. Ross consciously chose to answer some questions and consciously chose not to answer others in an effort “to impose his control on the interview.” On the other hand, Dr. Markman noted “clinical findings that were very characteristic of a psychiatric condition, an inability to function properly.” Dr. Markman measured the strength of his opinion that Ross was incompetent at 70-75 percent.
Dr. Markman acknowledged that the type of condition he believed Ross had “can vary and change from day-to-day depending on compliance with medication, treatment, and other factors.” He stated that his evaluation did not address Ross’s present condition because he did not know what had occurred during the two-and-a-half months since his interview with Ross.
Dr. Fairbanks evaluated Ross on May 4, 2009, and thereafter concluded that Ross was competent to stand trial. Dr. Fairbanks could not obtain a history from Ross because Ross refused to cooperate. Ross “seemed to be offended by [Dr. Fairbanks] asking any personal questions about his family and family life.” Dr. Fairbanks stopped asking those types of questions. Dr. Fairbanks explained that an inability to cooperate with an interview is indicative of incompetence; choosing not to cooperate with an interview is not indicative of incompetence. Dr. Fairbanks believed that Ross was choosing not to cooperate. Ross’s statements indicated that he was knowledgeable about the court system and how it worked. He appeared angry when telling Dr. Fairbanks that he did not do anything, he had not waived time and he did not get a speedy trial.
During cross-examination by Ross’s counsel, Dr. Fairbanks testified that he reviewed Dr. Markman’s report on the day of the competency hearing. Prior to reading that report, Dr. Fairbanks was not aware that Ross had a diagnosable mental illness or that he had been prescribed medication (Risperdal) which he was declining to take. Dr. Fairbanks characterized this as “very important” information that “would suggest that [Ross] has a qualifier for incompetence” that Dr. Fairbanks did not know “was there.”
Dr. Fairbanks stated: “I think my conclusion about competence is, clearly, less reliable because of the lack of information. [¶] So I would certainly be moving in that direction, and I think the conclusion, the inability to cooperate with his attorney is reasonable given that diagnosis, which I didn’t have. So I think it is more reasonable to accept after Markman’s conclusion rather than mine [sic].”
Dr. Fairbanks explained that the only reason a doctor would prescribe Risperdal is for a psychotic condition. But a psychotic condition does not necessarily render a person incompetent. A person who is psychotic may still be able to choose whether to cooperate with counsel. Given the new information, Dr. Fairbanks could not state whether Ross was choosing not to cooperate during the evaluation or could not cooperate as a result of a psychotic condition. Behavior that he initially interpreted as Ross’s unreasonableness or manipulation might have been attributable to Ross’s psychosis.
After hearing oral argument, the trial court ruled that Ross was competent to stand trial. The court noted that both doctors indicated Ross understood the nature of the criminal proceedings. The court concluded that Ross was able to assist counsel if he chose to do so, and that he had consciously chosen not to cooperate with the doctors when they attempted to obtain information about his background.
While the court was making its competency ruling, Ross asked if he could “say something to the court.” The court finished its ruling and then allowed Ross to speak, after admonishing him that he should listen to counsel’s advice that he remain silent. Ross told the court: “This case has been going on too long. I have been in this court since November of last year. There have been no witnesses, no victims coming to court. [¶] I was -- I’m illegally tazed [sic] and harassed by the Long Beach Police Department. I was in restraints and tazed twice in my back and the officer in the case stipulated that he tazed me while I was handcuffed. Okay. [¶] Clearly, I am under false arrest. Okay. I am a highly educated gentleman. I know what is going on. I know all about this court procedure and everything. This, this gentleman right here sitting next to me [defense counsel] has never came to see me not one day --... since I have been arrested.” Ross also stated that he was “being falsely accused of something [he] didn’t do.” The trial court informed Ross that he would be tried within 60 days.
Defense counsel stated for the record that he had “made attempts to talk to” Ross, but Ross had “been completely nonresponsive.” Ross stated that he wanted a “change of counsel, ” indicating that his attorney was “inadequate.” The court heard and denied Ross’s Marsden motion.
During defense counsel’s questioning of Dr. Markman, counsel mentioned that he had made repeated attempts to engage Ross in conversation, but had been unsuccessful. Ross responded: “Excuse me. May I object? [¶]... [¶] May I say something? My attorney hasn’t [come] to try and see me or nothing. He hasn’t tried to come and talk to me. [¶] I talked to that man on the stand right there before [Dr. Markman]. I never talked to my attorney since I have been here. He never told me about my charges.” The trial court did not address Ross’s concerns at that point, and the questioning of Dr. Markman continued.
People v. Marsden (1970) 2 Cal.3d 118.
II. Trial on Charged Offenses and Prior Conviction Allegations
Evidence presented at trial showed:
Ross was at a Rite Aid store at about 8:00 a.m. on November 3, 2008. Maria Gutierrez, a Rite Aid store manager, saw Ross open up a box containing a phone, take items out of the box and place them in his pocket. Jesus Najera, an assistant manager, saw Ross pick up a Red Bull drink and place it in his pocket. The phone and the Red Bull drink were Rite Aid merchandise.
Ross walked to the front of the store and approached a cashier who was working at a cash register. Ross was holding other items. He told the cashier he had forgotten his money or did not have his wallet. He walked to the store exit where Najera was standing.
Najera identified himself as a Rite Aid employee and asked Ross to return the store merchandise. Ross denied that he had anything and stated that he needed to leave the store. Najera continued to demand the return of the property. Ross continued to deny that he had anything. Ross started raising his voice and moving aggressively toward Najera. Eventually, Ross stated that he would return the property. He took the Red Bull drink out of his pocket and placed it on the floor. Ross told Najera he was leaving.
Najera told Ross he could not leave and explained that he was aware that Ross had additional store property. Ross pushed Najera. Najera grabbed Ross’s hands and pushed Ross back. Ross was yelling for Najera to get out of his way. Ross pulled the phone out of his pocket and threw it on the floor. Gutierrez told the cashier to call the police.
Najera told Ross that he had not returned everything and demanded that he do so. Ross swung his right fist at Najera’s face. Najera ducked and stepped back, activating the door sensor and causing the door to open. At some point, a can of beer fell out of Ross’s shirt. Ross ran out the door.
When the police arrived, Najera pointed out Ross, who was running across the street. Two officers in a patrol car chased him. When they caught up with him, they yelled three or four times for him to stop. Ross stopped after one of the officers pointed a gun at him. He began crying after he was handcuffed and placed in the back of a patrol car. He was cooperative initially, and admitted that he took a Red Bull, but gave it back.
An officer drove Najera to the site of the arrest for a field show-up. Ross refused to get out of the car. He kept repeating the words, “I did it.” He was lying across the back seat, screaming and “flailing his feet up and down like a small child throwing a tantrum.” The officers told Ross that they would have to use a taser on him if he would not comply. He continued to kick his legs and told the officers to “tase” him. After several minutes of trying to get Ross out of the car, an officer applied the taser to Ross’s upper back. Within two seconds, Ross started moving out of the car. The officers conducted the field-show-up, and Najera identified Ross.
The jury found Ross guilty of second degree robbery, petty theft and resisting, obstructing or delaying a peace officer. The jury then heard evidence about Ross’s prior convictions. The jury found the following allegations to be true: (1) that Ross had a prior conviction of a serious or violent felony (robbery), within the meaning of section 1170.12, subdivisions (a)-(d), (2) that Ross had two prior felony convictions (for robbery and petty theft with a prior) for which he had served prison terms, within the meaning of section 667.5, subdivision (b), and (3) that Ross did not remain free of prison custody and committed an offense resulting in a felony conviction during a period of five years subsequent to the conclusion of the prior prison term, within the meaning of section 667.5.
The trial court sentenced Ross to a total of 16 years in prison: the upper term of five years for the robbery, doubled to 10 years for the prior strike (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)); plus five years for the prior serious felony under section 667, subdivision (a)(1); plus one year for the prior conviction and prison term for petty theft with a prior (§ 667.5, subd. (b)). The court struck the allegation under section 667.5, subdivision (b), regarding the prior robbery conviction. The court imposed a concurrent term of one year for the misdemeanor conviction for resisting, obstructing or delaying a peace officer. The court stayed the sentence on the petty theft under section 654.
This special allegation was charged in the information and the fact of the prior serious felony was found true by the jury.
DISCUSSION
I. Finding of Competency
Ross contends that the trial court erred when it found him competent to stand trial. We disagree.
“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.” It is improper for a court to try or sentence a defendant while he is mentally incompetent. (§ 1367, subd. (a).)
A defendant is presumed to be mentally competent unless it is proved by a preponderance of the evidence that he is incompetent. (§ 1369, subd. (f).) On appeal, we must determine whether, viewed in the light most favorable to the decision, substantial evidence that is reasonable, credible, and of solid value supports the trial court’s finding on competency. (People v. Dunkle (2005) 36 Cal.4th 861, 885.)
The question presented here is whether substantial evidence supports the trial court’s finding that Ross was able to assist counsel in the conduct of his defense in a rational manner. Ross does not dispute the court’s finding that he understood the nature of the criminal proceedings.
The evidence showed that while Ross was in custody a doctor had prescribed for him a major tranquilizer that is used to treat hallucinations, delusions and other psychotic symptoms. Whether a defendant is “in fact mentally ill and, if so, his precise diagnosis” is not necessarily “determinative of his competency.” (People v. Dunkle, supra, 36 Cal.4th at p. 890.) Nor is the fact that he has been prescribed antipsychotic medications. (Ibid.) Dr. Fairbanks testified that a person who is psychotic may still be competent to stand trial. There is no evidence that Ross was experiencing hallucinations or delusions, even though he was declining to take the medication prescribed for him, as indicated in the record.
During his evaluations with both doctors, Ross answered some questions and refused to answer others. The record demonstrates that he was vocal when he wanted to get his “message” across: he did not do anything wrong; he had not talked to his attorney; he had not waived time and was being denied his right to a speedy trial; he was an educated man with an associate’s degree; he wanted to leave the hospital; and he wanted the doctor to call his sister and ask her to pick him up. But he became mute when the doctors solicited standard background information to be included in their reports (date and place of birth, family history).
Ross argues that the trial court had no choice but to find him incompetent to stand trial after Dr. Markman rendered his opinion of incompetence and Dr. Fairbanks indicated that he could no longer stand behind his own prior opinion of competence because he had not been made aware of relevant information regarding Ross’s mental condition. Not so. In making its competency determination the court “is not required to accept at face value a unanimity of expert opinion.” (People v. Samuel (1981) 29 Cal.3d 489, 498.)
Dr. Markman had a question about whether Ross was feigning or malingering. He made clear that his opinion of Ross’s incompetence was not absolute, but was 70 to 75 percent. He also acknowledged that his opinion did not address Ross’s condition at the time of the competency hearing, which was two-and-a-half months after his evaluation. He testified that a psychotic condition like the one he believed Ross had can vary over time depending on medication compliance, treatment and other factors.
Ross’s conduct at the competency hearing corroborates the court’s finding that Ross was able to assist his counsel in the conduct of his defense in a rational manner, but had chosen not to cooperate with counsel. The reporter’s transcript from the hearing indicates that Ross made comments to the trial court that were appropriate and articulate, and he did not exhibit any behavior tending to demonstrate incompetence. Immediately after the court declared him competent to stand trial, he addressed the court about his speedy trial rights and his right to adequate counsel. Before the court heard his Marsden motion, he complained that his attorney had not visited him in jail. Ross had no apparent difficulty communicating with the court, arguing his case and asserting his rights.
Because the trial court’s competency finding is supported by substantial evidence, we have no cause to disturb it.
II. Petty Theft Conviction
Ross contends that his conviction for petty theft must be reversed because it is based on the same course of conduct as his robbery conviction and is a lesser, necessarily included offense of robbery. The People agree.
In People v. Villa (2007) 157 Cal.App.4th 1429, 1432, 1433-1435, the Court of Appeal held that the defendant could not be convicted of both robbery of a store employee and petty theft of the store’s property based on the same course of conduct (the taking of a car navigation system) because petty theft is a lesser included offense of robbery. The court rejected the People’s argument that the defendant could be convicted of both robbery and petty theft because the crimes involved different victims. The court concluded that the crimes “legally” had the same victim because the store employee was the agent of the store employer. (Id. at p. 1435.) Moreover, the fact that the defendant was charged with and convicted of petty theft with a prior–as Ross was in this case–did not mean that the crime was not a lesser included offense of robbery because the prior conviction requirement of section 666 is a sentencing factor and not an element of the offense. (Id. at pp. 1434-1435.)
“Robbery has the elements of theft plus an additional element, use of force or fear.” (People v. Villa, supra, 157 Cal.App.4th at p. 1434.)
Here, Ross was charged with and convicted of the robbery of a Rite Aid employee and the petty theft of Rite Aid property based on the same course of conduct (his taking of certain store merchandise). The parties correctly conclude that the petty theft with a prior is a lesser included offense of the robbery, and Ross’s conviction for petty theft with a prior must be reversed.
III. Court Security Fee and Criminal Conviction Assessment
Because Ross’s conviction for petty theft with a prior must be reversed, he asks this court to vacate the $30 court security fee (§ 1468.5) and the $30 criminal conviction assessment (Gov. Code, § 70373) imposed as to that count (count 2).
The minute order from the sentencing hearing indicates that the trial court imposed a $30 fee under section 1465.8, and a $30 assessment under Government Code section 70373, as to each of the three counts (for a total of $180 in court security and criminal conviction fees and assessments). The abstract of judgment, however, only reflects the imposition of one $30 court security fee and one $30 criminal conviction assessment (for a total of $60).
Both the court security fee and the criminal conviction assessment “shall be imposed on every conviction.” (§ 1465.8, subd. (a)(1); Gov. Code, § 70373.) Accordingly, the trial court should correct the abstract of judgment to reflect the imposition of a $30 court security fee under section 1465.8, and a $30 criminal conviction assessment under Government Code section 70373, on counts 1 (robbery) and 3 (resisting, obstructing or delaying a peace officer), for a total of $120 in these fees and assessments.
DISPOSITION
The conviction for petty theft with a prior (count 2) is reversed. The abstract of judgment shall be corrected to reflect the imposition of a $30 court security fee under Penal Code section 1465.8, and a $30 criminal conviction assessment under Government Code section 70373, on counts 1 and 3 only. In all other respects, the judgment is affirmed. The clerk of the superior court is directed to prepare an amended abstract of judgment and to forward it to the Department of Corrections and Rehabilitation.
We concur: MALLANO, P. J., ROTHSCHILD, J.