Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FC 177201.
Pollak, Acting P. J.
Defendant Mack Arthur West, Jr., appeals from a judgment entered after a no contest plea to second degree murder and robbery. He has also filed a petition for a writ of habeas corpus, which has been consolidated with this appeal. Defendant argues that the trial court abused its discretion in failing to suspend the proceedings prior to the entry of his plea to conduct a fourth competency hearing, and that he received ineffective assistance of counsel in connection with the submission of his plea. We affirm the judgment and deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
In August 1999, defendant was charged with a single count of murder (Pen. Code, § 187, subd. (a)). Almost immediately thereafter the court suspended the criminal proceedings pursuant to section 1368 and appointed two experts to evaluate defendant’s competency to stand trial. Based on the expert opinions, the court found defendant incompetent and he was placed in the “Trial Competency Program” at Atascadero State Hospital (Atascadero). He was returned to the court as restored to competency in December 1999.
All statutory references are to the Penal Code unless otherwise indicated.
Following a preliminary hearing in February 2000, defendant was charged by amended information with murder (§ 187, subd. (a)), robbery (§ 211), vehicle theft (Veh. Code, § 10851, subd. (a)) and assault with a deadly weapon (§ 245, subd. (a)(1)). The information also alleged that defendant personally used a deadly weapon, a screwdriver, during the commission of the murder and robbery. Defendant entered a dual plea of not guilty and not guilty by reason of insanity.
In December 2000, following a hearing conducted pursuant to People v. Marsden (1970) 2 Cal.3d 118, the court found that there had been a total breakdown in communication between defendant and his court-appointed attorney. The public defender was relieved and new counsel was appointed.
In May 2001, defendant’s new attorney requested a second competency evaluation. The court again found that defendant was incompetent to stand trial and suspended the criminal proceedings. Defendant was returned to Atascadero. In August 2002, defendant was returned to the court based on the opinion of hospital staff that defendant was competent to stand trial. In April 2003, the court found that defendant was competent to stand trial based on its review of “psychological reports prepared since the defendant’s return from [Atascadero] in August of 2002” and of a report prepared by the hospital. The court explained that “he does understand the nature and the significance of these proceedings. He’s able to cooperate with counsel, if he chooses to do that, and it appears to the [c]ourt that Mr. West is purposely exaggerating symptoms to avoid going to trial in this matter.”
In January 2004, defendant’s attorney again requested that defendant’s competency be evaluated after defendant refused to cooperate with the attorney or come out of a holding cell. The case was then before a new judge, who suspended the proceedings a third time and appointed experts to evaluate defendant’s competency. The court expressly requested that the doctors “explore issues of malingering by defendant.” Following his interview with defendant, Dr. Murray Eiland informed the court that while he strongly believed that defendant was malingering, he could not make a competency determination because defendant was refusing to cooperate. He stated, “There are several reasons why I strongly believe that Mr. West is faking or exaggerating his symptoms. During the four times I have seen him, he has described his symptoms in a very different way and has acted in a very different manner each time. From the beginning there have also been questions about the degree to which he may have been exaggerating his symptoms. [¶] Throughout the time I spent with Mr. West in the latest interview, he never appropriately answered a single one of my direct question[s], which I take to be significant. I have interviewed several thousand people suffering from psychosis during the years of my psychiatric practice. In each case—no matter how severe the mental illness—all but a tiny minority of these people have been able to answer some questions appropriately. Only in cases where I have strongly suspected malingering have the people being interviewed seemed unable to give even one appropriate answer.”
In December 2004, the court held a competency trial. Dr. Eiland confirmed his opinion that defendant was malingering. With regard to defendant’s competency, he testified, “I have insufficient reason to think he is unable to stand trial. [¶] I do have a strong reason to think he has been feigning mental illness at times. . . . [H]e may have some mental situation that is making it more difficult for him, but it’s clear to me that there is a deliberate effort for him to appear sicker than he has ever been. I think he wants to avoid going to trial.” Dr. Eiland thought that defendant was able to assist his attorney but was not sure that he would. Dr. Carlton Purviance, who was also appointed to evaluate defendant, similarly testified that defendant “does suffer from a mental illness, but . . . he is quite resourceful and is able to describe symptoms that would be consistent with an illness and exaggerates those and amplifies those . . . in a way to affect a certain outcome.” He explained that during the interview, “his presentation was one in which he was spontaneously offering material that was designed to convince me of a very serious mental illness and specifically that he wasn’t competent to proceed.” The trial court found that defendant was competent to stand trial.
In April 2005, defendant’s attorney again expressed a doubt as to defendant’s competency to stand trial after defendant continued to refuse to cooperate or enter the courtroom. He acknowledged, however, that the experts who examined defendant believed him to be malingering. The court considered the extensive reports that had previously been submitted regarding defendant’s competency as well as a recent report submitted in conjunction with defendant’s insanity plea. The court noted that defendant would not participate in the most recent evaluation and that the doctor believed defendant knows “ ‘how to play the mental illness role’ ” and “wants to remain in control of the legal system.” The court noted that there had been “three findings of competency already; one by the doctors at Atascadero; one by Judge Foor; and one by me” and found there was no substantial change of circumstances or new evidence casting serious doubt on the earlier findings of competency.
Between April 2005 and January 2006, defendant refused to come into the court room, opting to view the proceedings from a holding cell that had a window into the courtroom. As the date of the jury trial approached, defendant’s conduct became more disruptive. On January 30, 2006, defendant entered the courtroom but almost immediately became disruptive. Among other things, he claimed to have seen the judge on television news talking about giving him the death penalty. Defendant was first placed in the holding cell, but after he began “knocking on the window . . . screaming things” he was removed from the courtroom entirely.
On February 3, 2006, defendant continued to rant from inside the holding cell and was again removed. Defendant’s attorney then requested another competency evaluation. He explained, “I received information from the correctional officers at the jail that earlier this week Mr. West made a suicide—well, perhaps a suicide attempt. He was indicating to the jail staff he believed there was gas of some sort in his cell. When they opened his cell he ran out of his cell and fashioned a sheet into a noose and ran down and then back up and wasn’t able to use the noose in any fashion before the jail staff were able to get him back under control and back into his cell. [¶] Subsequent to that I learned from additional jail staff that Mr. West attempted to slit his wrists. I saw him today and attempted to discuss this with him, and he did not discuss anything with me. He was nonresponsive to all the questions, but I was able to observe on him that he was bandaged up the length of his arm and I could see there was blood on the bandages and blood at the margin of where the bandage covered.” The court rejected his argument that the suicide attempts constituted sufficient changed circumstances. The court explained, “This [c]ourt does have some historical knowledge of this case as it has progressed. I have been involved for about a year and a half now plus, and that includes evidentiary hearings on whether or not he was malingering when it was claimed he was incompetent to stand trial. [¶] The mental health professionals concluded he was malingering and I came to the same conclusion. It’s my opinion that his behavior over the last week is just more of the same feigning mental incompetency for purposes of delaying the proceedings.”
Due to calendaring conflicts, defendant’s jury trial was continued until June 12, 2006. On May 22, defendant retained a new attorney. The trial was continued until November due to the production of new discovery.
On November 27, 2006, defendant withdrew his plea and pled no contest to one count of second degree murder with the personal use of a deadly weapon enhancement and one count of second degree robbery. He was informed that the maximum punishment was 16 years to life in prison. Defendant received that sentence for the murder and a concurrent three-year term for the robbery. He filed a timely notice of appeal but did not request a certificate of probable cause.
DISCUSSION
1. The trial court did not abuse its discretion in declining to conduct another competency hearing.
Under both the federal and California Constitutions, as well as under California statutory law, a defendant may not be “tried or sentenced while mentally incompetent.” (People v. Dunkle (2005) 36 Cal.4th 861, 885, citing § 1367, subd. (a).) 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.’ ” (People v. Marks (2003) 31 Cal.4th 197, 215, quoting § 1367, subd. (a).) Whenever the defendant “presents substantial evidence of incompetence, due process requires that the trial court conduct a full competency hearing.” (People v. Jones (1991) 53 Cal.3d 1115, 1152; § 1368, subd. (a).) Once a defendant has been found competent to stand trial, however, “a [subsequent] competency hearing is required only if the evidence discloses a substantial change of circumstances or new evidence is presented casting serious doubt on the validity of the prior finding of the defendant’s competence.” (People v. Medina (1995) 11 Cal.4th 694, 734.) “The court’s decision whether to grant a competency hearing is reviewed under an abuse of discretion standard.” (People v. Ramos (2004) 34 Cal.4th 494, 507; People v. Huggins (2006) 38 Cal.4th 175, 220 [“We apply a deferential standard of review to a trial court’ ruling concerning whether another competency hearing must be held”].) Neither a defense counsel’s generic statements that the defendant is unable to assist with his defense nor “bizarre statements and actions” by the defendant are necessarily sufficient evidence to require a renewed competency hearing. (People v. Marks, supra, 31 Cal.4th at p. 220; People v. Jones, supra, 53 Cal.3d at p. 1153.)
Defendant contends the trial court abused its discretion and violated his constitutional rights by refusing to suspend the proceedings a fourth time for another competency evaluation. Defendant argues that when his behavior began deteriorating in February 2006, as evidenced by his outbursts in the courtroom and alleged suicide attempts, the court should have suspended the proceedings and ordered another competency evaluation. Based on the record, however, we cannot conclude that the trial judge, who presided over the prior evidentiary hearing on defendant’s competency, abused his discretion in finding that defendant’s behavior was a calculated attempt to delay the proceedings.
The Attorney General contends that this argument is not cognizable on appeal because defendant pled no contest to the charges and did not obtain a certificate of probable cause. Defendant’s petition for habeas corpus, however, alleges that he received ineffective assistance of counsel in part because his attorney failed to request a certificate of probable cause. We deem it most expedient to consider defendant’s arguments on the merits.
Relying on United States v. Loyola-Domingues (9th Cir. 1997) 125 F.3d 1315, defendant argues that his suicide attempts “constituted changed circumstances warranting additional judicial reflection.” In that case, the court observed that “[a]n attempted suicide is an extremely serious action” and found that under the circumstances of that case, the suicide attempt gave rise to a doubt as to the defendant’s sanity. (Id. at pp. 1318-1319.) The court noted, however, “we do not believe that every suicide attempt inevitably creates a doubt concerning defendant’s competency.” (Ibid.; see also People v. Ramos, supra, 34 Cal.4th at p. 509 [“defendant’s preference for the death penalty and overall death wish does not alone amount to substantial evidence of incompetence or evidence requiring the court to order an independent psychiatric evaluation”].) Here, it is questionable whether the behavior described by defendant’s attorney can be considered a serious suicide attempt. In any event, the trial court was entitled to measure the severity and authenticity of defendant’s suicide attempts and other courtroom behavior in light of his experience with the defendant and defendant’s prior psychiatric evaluations.
Defendant also contends that the court abused its discretion by failing to explore previously unassessed psychological features involving an organic brain injury and mental retardation. Defendant has failed to establish, however, that further exploration of these issues was necessary or even properly requested. The psychiatric evidence dating back to 2001 repeatedly references a diagnosis of schizophrenia, a potential organic brain injury stemming from an accident when defendant was 10 years old, and the likelihood that defendant is moderately mentally retarded. V.L. Sternitzke, one of the psychologists appointed to examine defendant in 2001, indicated that he had conducted a full range picture vocabulary test to assess defendant’s intellectual functioning and concluded on the basis of those test results that defendant had the mental age of 5.75 years, putting him below the “use of reason” level. The experts who subsequently examined defendant testified that they considered Sternitzke’s findings in evaluating defendant’s competency and concluded that he nonetheless was competent to stand trial. The court agreed. Although the trial court did not appoint the director of the regional center for the developmentally disabled to examine defendant following Sternitzke’s 2001 report that defendant was mentally retarded, as it was required to do by section 1369, subdivision (a), no harm resulted. Defendant’s mental retardation was tested and evaluated by Sternitzke and considered by the other experts and by the court in determining his competence to stand trial. He received a “comprehensive, individualized examination” performed by an appropriate expert consistent with the purpose of section 1369. (See People v. Leonard (2007) 40 Cal.4th 1370, 1389-1390 [failure to appoint regional director to evaluate defendant was harmless where “the trial court’s competency determination was based on evidence from experts who were familiar with defendant’s developmental disability and who considered it in evaluating his competence”].) Putting aside defendant’s failure to request further tests for a possible brain injury or mental retardation, he has made no showing that additional evaluation was either necessary or could reasonably have been expected to affect the conclusions that were reached concerning his competency to stand trial.
2. Defendant did not receive ineffective assistance of counsel with regard to the entry of his no contest plea.
Defendant pled no contest to second degree murder and admitted that he used a deadly weapon during the commission of the crime. Prior to taking his plea, the court confirmed that his lawyer “went over [the] waiver of rights form” with him and that he understood the rights he was waiving. Defendant stated that he understood his rights and also understood that he was giving up those rights by pleading no contest. The waiver form states with regard to his postconviction placement, “Being fully aware that placement in CDC will be up to CDC alone, the court and DA suggests that due to mental condition Atascadero considered.” Following the entry of his plea, the court advised that it would “refer this matter to [p]robation for their report and recommendation with the understanding that they’re going to look into placement in either a mental health setting or [Atascadero]” The prosecutor added, “That’s Department of Corrections’ decision. What I will do, and I told [defendant’s attorney] that, . . . in the statement of [views] that I will write, which will detail the facts of the case, et cetera, I think it’s appropriate, given the mental health history in this case, that he be evaluated, and we’d have Department of Corrections determine whether it’s appropriate to house him at Atascadero, Department of Corrections with mental health treatment or somewhere else.”
Defendant contends that the promises made by the prosecutor and the court to “recommend” or “investigate” placement at Atascadero were illusory and that his attorney was ineffective in failing to so advise him. He argues that under section 2684 and California Code of Regulations, title 15, section 3360, the decision to place an inmate at a state mental hospital is vested in the sole discretion of the Department of Corrections and that a recommendation by the prosecutor or judge “carrie[s] no weight.” He also argues that the bargain was illusory because any placement at a state mental hospital is temporary at best.
Section 2684 provides “(a) If, in the opinion of the Director of Corrections, the rehabilitation of any mentally ill, mentally deficient, or insane person confined in a state prison may be expedited by treatment at any one of the state hospitals under the jurisdiction of the State Department of Mental Health or the State Department of Developmental Services, the Director of Corrections . . . shall certify that fact to the director of the appropriate department who shall evaluate the prisoner to determine if he or she would benefit from care and treatment in a state hospital. If the director of the appropriate department so determines, the superintendent of the hospital shall receive the prisoner and keep him or her until in the opinion of the superintendent the person has been treated to the extent that he or she will not benefit from further care and treatment in the state hospital. [¶] (b) Whenever the Director of Corrections receives a recommendation from the court that a defendant convicted of a violation of Section 646.9 [Stalking] and sentenced to confinement in the state prison would benefit from treatment in a state hospital pursuant to subdivision (a), the director shall consider the recommendation. If appropriate, the director shall certify that the rehabilitation of the defendant may be expedited by treatment in a state hospital and subdivision (a) shall apply.” California Code of Regulations, title 15, section 3360, subdivision (b) provides, “When an inmate is found to require mental health care not available within the[] resources [of the Department of Corrections], but which is available in the Department of Mental Health, the case will be referred to the director for consideration of temporary transfer to that department pursuant to . . . section 2684.”
Defendant is correct that the final decision regarding placement rests with the Department of Corrections. However, defendant was fully advised of this fact prior to entering his plea. Contrary to defendant’s argument, the court and the prosecutor did not promise to recommend placement at Atascadero. Rather, they promised to recommend to the Department of Corrections that it consider such a placement. The prosecutor fulfilled this promise by including in his statement of views that “it is the position of the People that the Department of Corrections and Rehabilitation should conduct a thorough and careful examination of Mr. West in order to determine the proper housing and treatment, if any, for the defendant. It is the position of the People that all options for housing, including but not limited to [Atascadero] . . . and various other prison facilities be explored, taking into account all appropriate security concerns.” Nothing in the provisions cited by defendant suggest that the prosecutor’s recommendation for evaluation carries no weight with the Department of Corrections. Finally, the fact that placement is only “temporary,” in that it can last only “until . . . the person has been treated to the extent that he or she will not benefit from further care and treatment in the state hospital,” does not render the plea bargain illusory. That defendant would not receive a permanent placement in a state mental hospital irrespective of his continued need for mental health treatment does not remove meaningful content from a promise to recommend consideration for hospitalization for so long as defendant would benefit from treatment.
Section 1203.01 authorizes the district attorney to file “a brief statement of [his or her] views respecting the person convicted or sentenced and the crime committed,” which is delivered to the Department of Corrections at the prison or other institution to which the person convicted is delivered.
Defendant suggests that he “was rushed to make a decision without the usual benefit of a discussion with his conservator/father.” His declaration, however, does not support this claim. Defendant writes that prior to the hearing, “I asked to see my father/conservator but Mr. Spieckerman told me he was not present.” Later he adds, “When I got into court, I was surprised to see my conservator/father sitting in the back because I was told he was not present.” There is no suggestion in the declaration that defendant renewed his request to confer with his father or that such a request would have been futile.
Defendant also contends the trial court failed to conduct the required inquiry to determine whether there was a factual basis for his plea. He acknowledges that the waiver form he signed states that “[t]he facts upon which this change of plea are based are: [¶] those contained in the preliminary transcript” but suggests that this conclusory statement did not establish a factual basis for the plea. Notably, defendant does not suggest that the facts contained in the preliminary hearing transcript do not support the plea.
“Pursuant to section 1192.5, the trial court is obligated to determine whether there is a factual basis for a plea of guilty or no contest when that plea arises from a negotiated resolution of the charges.” (People v. Marlin (2004) 124 Cal.App.4th 559, 571.) “Although section 1192.5 requires the trial court to satisfy itself there is a factual basis for the plea, this can be done by having the defendant describe the conduct or answer questions, by detailing a factual basis, or by having defense counsel stipulate to a particular document such as the transcript of a preliminary hearing as providing a factual basis for a plea. [Citation.] The trial court need not obtain an element-by-element factual basis but need only obtain a prima facie factual basis for the plea. [Citations.] ‘[A] trial court possesses wide discretion in determining whether a sufficient factual basis exists for a guilty plea. The trial court’s acceptance of the guilty plea, after pursuing an inquiry to satisfy itself that there is a factual basis for the plea, will be reversed only for abuse of discretion.’ ” (Id. at pp. 571-572, quoting People v. Holmes (2004) 32 Cal.4th 432, 443.)
In People v. Wilkerson (1992) 6 Cal.App.4th 1571, 1577, the court rejected an argument similar to defendant’s in holding that the court’s reliance on a stipulation that the factual basis was contained in the police reports, without further inquiry, was sufficient. The court explained, “The stipulation entered by the parties below was not generalized but referred the municipal court, and us, to a particular source of information, namely, police reports. In this respect this case resembles People v. Enright (1982) 132 Cal.App.3d 631 . . . . The Enright court found no error when the parties stipulated the police reports could be considered as the factual basis for a guilty plea, even though the record did not affirmatively show that the reports were specifically considered by the court. [Citation.] Although we would prefer that the court expressly refer to the specific facts which it finds sufficiently support the plea, we will not find error simply from the failure to do so, as long as adequate information was before the court and is reflected in the record.” (People v. Wilkerson, supra, 6 Cal.App.4th at p. 1577.) Likewise, in this case the trial court did not abuse its discretion by relying on the stipulation that the preliminary hearing transcript provided a factual basis for defendant’s plea.
DISPOSITION
The judgment is affirmed. The petition is denied.
We concur: Siggins, J., Jenkins, J.