Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. Nos. BB939032, CC943138
Premo, Acting P.J.
The trial court found defendant Tonya Shipp incompetent to stand trial under Penal Code sections 1367 through 1370. The court committed defendant to the State Department of Mental Health for a period not to exceed three years. On appeal, defendant contends that she is competent and that the trial court violated her right to due process by finding her incompetent based upon two adverse reports, without considering a third, and without her consent. Defendant also argues that the trial court erred in failing to exercise its discretion to allow her to be treated as an outpatient. We find no error and affirm.
Hereafter all unspecified statutory references are to the Penal Code.
I. Background
A misdemeanor complaint filed February 17, 2009, alleged that defendant had committed battery and inflicted injury upon a bus driver (§§ 242, 243.3) while on the bus (§§ 242, 243.35). On May 11, 2009, defense attorney Kipp Davis declared a doubt as to defendant’s competence to stand trial. On May 13, 2009, the trial court suspended proceedings and appointed Brad Novak, M.D. to examine defendant.
Meanwhile, on or about May 7, 2009, just four days before attorney Davis declared a doubt as to her competence, defendant was involved in an incident that led to her arrest. On that day, defendant was driving a car with no rear license plate. Officer Stephen Rafala of the San Jose Police Department pulled her over. When defendant revealed that she had neither a driver’s license nor insurance for the car, Officer Rafala asked her to step out of the car. Defendant was uncooperative, swore at the officer, spit and spouted profanities and threats “[a]t the top of her lungs, ” all the while waving her arms and clenching her fists. Other officers arrived to assist and defendant became even more violent. Defendant was handcuffed and placed in the back of a patrol car whereupon she lay down on the seat and proceeded to kick at the window of the car, 30 to 40 times. She somehow managed to slip one hand out of the cuffs and, using the loose cuff like brass knuckles, punched at the rear window of the vehicle. In the course of the altercation, defendant bit Officer Rafala three times, drawing blood with at least one of the bites, and hit him in the face with the handcuffs. One bite wound bled for about two hours. The officer’s wounds were dressed at the hospital where he was also prescribed antibiotics and pain medication. Defendant was taken into custody.
A felony complaint was filed on May 12, 2009, charging defendant with one count of resisting a peace officer (§ 69) and one count of battery on a peace officer (§§ 242, 243, subd. (c)(2)). An amended complaint added the allegation that defendant interfered with the official duties of a peace officer by “biting, scratching, spitting, and transferring blood and other bodily fluids on, upon, and through the skin and membranes of a peace officer... within the meaning of Health and Safety Code section 121060.”
On May 24, 2009, Dr. Novak interviewed defendant at the jail. He also reviewed defendant’s mental health records, jail records, a police report from January 2009 (but none from May 2009), and a letter from the deputy public defender. The letter noted that defendant had become “hostile and unable to cooperate nor rationally assist in her defense.” At the interview, defendant presented as articulate and rational. She scored in the minimal to no impairment range on all sections of the competency test. She had no current mental illness diagnosis but did have a history of two prior psychiatric hospitalizations. Dr. Novak believed there to be “enough evidence of a pattern of maladaptive personality traits to include this as a rule out diagnosis, ” and that the hostility she displayed toward her attorneys and others could be due to that. He concluded, however, that defendant’s beliefs about her case were not delusional and did not cause her to be incompetent and that she was capable of rationally assisting her attorney. Based upon Dr. Novak’s report, the trial court declared defendant to be competent and reinstated criminal proceedings on June 10, 2009.
A preliminary hearing was conducted on July 7, 2009, and defendant was held to answer. On July 20, 2009, attorney Jennifer Hultgren declared a doubt as to defendant’s competency to stand trial. Defendant objected to counsel’s declaration, noting that she had already been evaluated and found competent. Counsel explained to the court that defendant had previously been declared competent but that since the preliminary hearing on July 7, counsel had received information from mental health personnel at the jail “that leads me to believe that a 1368 declaration is appropriate at this time.” Defendant responded that she had been declared “5150” but had been released from the three-day hold. Defendant pleaded not guilty to the felony charges. The trial court suspended criminal proceedings in both the misdemeanor and the felony cases and ordered another competency hearing.
Welfare and Institutions Code section 5150 provides in pertinent part: “When any person, as a result of mental disorder, is a danger to others, or to himself or herself... the county may, upon probable cause, take, or cause to be taken, the person into custody and place him or her in a facility designated by the county and approved by the State Department of Mental Health as a facility for 72-hour treatment and evaluation.”
The trial court ordered two mental health professionals, Terrance G. Riley, Ph.D., and Brent Hughey, Ph.D., to examine defendant. Defendant objected to the orders and insisted she was competent. Doctors Riley and Hughey evaluated defendant on August 5, 2009. Both examiners found defendant to be not competent to stand trial.
Because defendant does not challenge the sufficiency of the evidence, we need not discuss the details of the doctors’ findings.
At a hearing on August 26, 2009, after counsel submitted the issue of defendant’s competence on the reports of doctors Riley and Hughey, the trial court found defendant not competent. Defendant objected and asked for a trial and pointed out that there was a third report that found her to be competent. The court acknowledged the objections but did not change its ruling. The court referred the matter to the South Bay Conditional Release Program (CONREP) for a recommendation as to treatment or commitment. The CONREP report stated that no outpatient services would be provided because “[section] 1601, [subdivision] (a) mandates [defendant] be committed to an inpatient program.” Accordingly, on September 15, 2009, the court committed defendant to the Department of Mental Health for a maximum of three years. This appeal followed.
II.Discussion
A. The Trial Court Did Not Deprive Defendant of Due Process by Failing to Consider the Novak Report
Defendant argues that she was denied due process of law by the trial court’s failing to consider Dr. Novak’s report and basing its finding of incompetence upon the other two reports alone. The Attorney General views the argument as one charging ineffective assistance of counsel. As we understand it, defendant’s concern is with the trial court’s ruling and not with counsel’s performance. In any event, our independent review reveals no error.
“A criminal defendant must be competent to stand trial. ‘A defendant is mentally incompetent [to stand trial] 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 the trial court entertains any doubt as to the mental competence of a defendant, and the defendant’s attorney concurs in that doubt, the court must recess proceedings and order that a hearing be held to determine whether the defendant, is competent to proceed. (§ 1368, subds. (a), (b).)” (People v. Jernigan (2003) 110 Cal.App.4th 131, 135.)
Section 1369, subdivision (a), sets out the procedure to be used in determining whether a defendant is competent to stand trial. It provides in pertinent part: “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.” Section 1369, subdivision (f), establishes a presumption that the defendant is mentally competent unless he or she is proved by a preponderance of the evidence to be otherwise. “In so doing, it operates to impose the burden of proof on the party, if any, who claims that the defendant is mentally incompetent, and fixes the weight thereof at preponderance of the evidence.” (People v. Rells (2000) 22 Cal.4th 860, 862.) “When, as here, a competency hearing has already been held and the defendant was found to be competent to stand trial, a trial court is not required to conduct a second competency hearing unless ‘it “is presented with a substantial change of circumstances or with new evidence” ’ that gives rise to a ‘serious doubt’ about the validity of the competency finding. (People v. Jones (1991) 53 Cal.3d 1115, 1153.)” (People v. Marshall (1997) 15 Cal.4th 1, 33.)
Defendant argues that because she disagreed with her attorney’s doubt as to her competence, she was entitled to have the court consider any evidence she might want to submit in support of her position. Defendant cites several cases that she claims stand for the proposition that she was entitled to confront the witnesses against her, to offer evidence of her own, or to give her personal consent to the waiver of these rights. (See e.g., Specht v. Patterson (1967) 386 U.S. 605, 610 [civil commitment as a sex offender]; People v. Levey (1973) 8 Cal.3d 648, 654 [agreement to submit issue of guilt on preliminary hearing transcript].) These cases are inapplicable to proceedings to determine a person’s competence to stand trial. As we have previously explained, “Once the judge has declared a doubt sufficient to require a section 1368 hearing, a defendant’s attorney necessarily plays a much greater role in making fundamental choices for her client. [Citation.] It is immaterial that the defendant expressly objects to the course his [or her] counsel chooses. To permit a prima facie incompetent defendant to veto counsel’s decision to argue that the client is incompetent would increase the danger that the defendant would be subjected to criminal proceedings when he or she is unable to assist counsel in a rational manner. [Citation.] Therefore, ‘[w]hether or not the client objects, counsel must be allowed to do what counsel believes is best in determining the client’s competence.’ (People v. Masterson (1994) 8 Cal.4th 965, 973.)” (People v. Jernigan, supra, 110 Cal.App.4th at pp. 135-136.) That includes waiving the right to a jury determination of competency without a personal waiver from the defendant. (People v. Masterson, supra, at pp. 969, 972.) It also includes allowing the competency issue to be decided based upon the written reports of the psychological examiners. (People v. McPeters (1992) 2 Cal.4th 1148, 1169.)
Defendant maintains that the procedure followed in this case violated her right to due process of law because the trial court did not consider Dr. Novak’s report finding her competent. People v. McPeters, supra, 2 Cal.4th at page 1169, rejected a similar argument. In McPeters, the defendant’s attorney waived the right to a jury trial and the right to present oral testimony and to confront and cross-examine witnesses, submitting the matter on the psychiatric reports, just as was done in this case. (Ibid.) The Supreme Court affirmed the trial court’s finding of competence even though the trial court had not considered prior reports finding the defendant to be incompetent. The Supreme Court observed that the reports defendant relied upon “were four to six months old; some were incorporated in the reports presented to the trial court, which necessarily superseded the prior reports of the same experts. In view of the stale character of the information, defendant fails to show its pertinence to the question of defendant’s competence at the time of the hearing. Moreover, defendant fails to point to any evidence that he was in fact incompetent at the time of trial or that his counsel, the trial court, or anyone else entertained any doubts about his competence at that time. Under these circumstances, neither error nor prejudice is present. Nor is there any basis for a claim that defense counsel was ineffective.” (Id. at p. 1169, fn. 1.)
In the present case, new circumstances--an incident at the jail occurring over a month after the Novak evaluation--prompted jail authorities to place defendant in a mental health facility for 72 hours pursuant to Welfare and Institutions Code section 5150. The incident led defendant’s attorney to declare a doubt as to her competence in July, notwithstanding Dr. Novak’s May finding. Because defendant believed she was competent, the trial court ordered two evaluations as section 1369, subdivision (a) requires. The two doctors evaluated defendant more than two months after Dr. Novak evaluated her, so their reports necessarily reflected a more current evaluation than did the Novak report. Although the trial court did not have Dr. Novak’s report before it, counsel did make the court aware that there had been a prior finding of competence. The court’s failure to review the earlier report did not prejudice defendant because it was not evidence that defendant was then competent. Indeed, there was no evidence, other than defendant’s own opinion, that she was competent at the time the trial court considered the issue. It follows that defendant was not deprived of due process of law. Rather, by insuring that defendant was not convicted when there was some doubt as to her competence, her counsel insured that defendant received the process she was due.
B. Defendant Was Not Eligible for Outpatient Treatment
Defendant argues that the trial court had discretion to order outpatient treatment but failed to exercise that discretion because it was misled by the CONREP report. The CONREP report stated that defendant was not eligible for outpatient treatment pursuant to section 1601, subdivision (a). That subdivision provides: “In the case of any person charged with and found incompetent on a charge of, convicted of, or found not guilty by reason of insanity of murder, mayhem, aggravated mayhem, a violation of [specified Penal Code sections], or any felony involving death, great bodily injury, or an act which poses a serious threat of bodily harm to another person, outpatient status under this title shall not be available until that person has actually been confined in a state hospital or other facility for 180 days or more after having been committed under the provisions of law specified in Section 1600.” (Italics added.)
Defendant argues that her crimes are not among those specified in section 1601, subdivision (a), and, therefore, the trial court was not required to commit her to the state hospital. Defendant claims her case falls within subdivision (b) of section 1601, which gives the trial court discretion to order outpatient treatment. The argument presents a question of law, which we review de novo. (People v. Williams (2010) 184 Cal.App.4th 142, 146.)
Section 1601, subdivision (a) requires a minimum of 180 days commitment if the defendant is charged with the specified felonies “or any felony involving... an act which poses a serious threat of bodily harm to another person.” The charges--that defendant assaulted a peace officer and caused the exchange of bodily fluids within the meaning of Health and Safety Code section 121060--describe such an act.
Biting the officer resulted in actual bodily harm to him. The allegation that the bites resulted in the exchange of bodily fluids “within the meaning of Health and Safety Code section 121060” reflects a risk of additional harm. Health and Safety Code section 121060 mandates testing arrestees for infection with the virus that causes AIDS or hepatitis when peace officers or other public safety personnel have come in contact with the arrestees’ blood or bodily fluids. (Health & Saf. Code, § 121060, subd. (a).) The purpose of this and other testing statutes is stated in Health and Safety Code section 121050: “The people of the State of California find and declare that AIDS, AIDS-related conditions, and other communicable diseases pose a major threat to the public health and safety. [¶]... The purpose of this chapter is to require that information that may be vital to the health and safety of the public... peace officers, firefighters and emergency medical personnel put at risk in the course of their official duties, be obtained and disclosed in an appropriate manner in order that precautions can be taken to preserve their health and the health of others or that those persons can be relieved from groundless fear of infection.”
The information alleged actual bodily harm to the officer and facts showing a serious threat of further harm by way of infection. Accordingly, defendant’s conduct fell within the terms of section 1601, subdivision (a) and temporary inpatient treatment was required.
III. Disposition
The judgment is affirmed.
WE CONCUR: Elia, J.McAdams, J.