Opinion
NOT TO BE PUBLISHED
Lake County Super. Ct. Nos. CR4726 & LP29682
Kline, P.J.
Robert Joseph Williams appeals from judgment and sentence imposed on him as a result of his admission of a probation violation and also a plea of guilty to a subsequent offense. His court-appointed counsel has filed a brief raising no legal issues and requesting that this court conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436.
PROCEEDINGS BELOW
On December 21, 2000, after a jury found him guilty of possession of ephedrine with intent to manufacture methamphetamine (Health & Saf. Code, § 11383, subd. (c)(1)), in Lake County Superior Court docket No. 4726, appellant was placed on three years’ formal probation with numerous conditions prohibiting the possession and use of controlled substances, particularly methamphetamine. Less than a year later, appellant provided the probation department a urine sample that tested positive for methamphetamine. Accordingly, a petition to revoke his probation was filed in the foregoing case (hereafter docket No. 4726) on October 22, 2001.
All statutory references are to the Health and Safety Code unless otherwise indicated.
Two days later, appellant was arrested at his home, and on October 26, 2001, the Lake County District Attorney filed a complaint (in docket No. 29682) charging four new offenses: manufacturing methamphetamine (§ 11379.6–count I); possession of a listed stimulant or stimulants with intent to manufacture methamphetamine (§§ 11055, subd. (d)(1)-(6), § 11383, subd. (c)(1)–count II); destroying evidence (Pen. Code, § 135–count III): and resisting arrest (Pen. Code, § 148–count IV). Count II alleged that the offense of which appellant was convicted in December 2000 (docket No. 4726) was a prior conviction for which an enhancement could be imposed under section 11370.2, subdivision (a).
On November 2, 2001, appellant admitted the probation violation alleged in the petition to revoke filed in docket No. 4726, and also pled guilty to the charge of violating section 11379.6 (manufacturing methamphetamine) alleged in count I of the complaint in docket No. 29682. Pursuant to the negotiated plea, sentencing was left open to the court. When appellant failed to appear for sentencing on December 28, 2001, the court issued a no-bail warrant in both cases. More than a year and a half later, on July 23, 2003, appellant was arraigned on the bench warrants in both matters.
For nearly one year—from July 23, 2003 to June 14, 2004—matters in both cases (docket Nos. 4726 and 29682) trailed appellant’s new complaint, which was assigned docket No. 34206.
The new complaint does not appear in the record. It is referred to but not described in court minutes of proceedings in which other matters then pending were continued. Appellant’s Wende brief states that “appellant plead to two counts in docket No 34206, and was sentenced on September 10, 2007 to an additional one year and eight months consecutive to where [sic] the six year sentence in the two ‘earlier’ cases, docket No. 4726 and No. 29682. No Notice of Appeal was filed in docket No. 34206 and it is not part of this appeal.”
On June 14, 2004, defense counsel stated a belief appellant was mentally incompetent and sought an order that the question of his mental competence be determined at a hearing (Pen. Code, §§ 1368, 1368.1, 1369). All of the other proceedings were then abated and a doctor was appointed. Approximately one month later the parties submitted the question on the basis of the doctor’s report. The court found appellant “unable to competently assist counsel in his defense,” and suspended all criminal proceedings. On September 7, 2004, appellant was ordered to be delivered to Napa State Hospital for restoration of his competency. (Pen. Code, § 1370.)
A hearing to determine whether appellant’s competency had been restored was conducted more than one year later, in April 2006, and the court found competency had not been restored and ordered appellant returned to Napa State Hospital.
The annual hearing was next held on April 10, 2007, at the close of which the court found that appellant’s competency had been restored and set a hearing on the previously suspended sentencing issues in docket Nos. 4726 and 29682.
Appellant was sentenced on July 2, 2007. The court imposed the five-year midterm for violation of section 11379.6 (manufacture of methamphetamine), as charged in docket No. 29682, and a consecutive four-year midterm for violation of section 11383, subdivision (c)(1) (intent to manufacture methamphetamine), as charged in docket No. 4726. The court designated the term imposed for the former offense as the principal term and the term imposed for the latter the subordinate term. Therefore, the subordinate term became one year four months, for an aggregate prison term of six years four months. (Pen. Code, § 1170.1) A restitution fine in the amount of $1,700 was imposed under Penal Code section 1202.4, subdivision (b), and a fine in the same amount was imposed under Penal Code section 1202.45 but suspended unless parole is revoked. Appellant was awarded credits for actual time served (excluding time served at Napa State Hospital) of 944 days (Pen. Code, § 2900.5), and credit for good behavior of 236 days under Penal Code section 4019, subdivision (b), and the same under subdivision (c). Finally, the court granted appellant 515 days of credit for the time he was confined at Napa State Hospital; however, it did not grant appellant any credit for good behavior at that facility.
The timely appeal was filed on August 20, 2007.
FACTS
As earlier noted, appellant was originally placed on probation on December 21, 2000. The probation report states the facts regarding the offense of which he was convicted, intent to manufacture methamphetamine, were that appellant was found in possession of .04 grams of amphetamines, 10.6 grams of ephedrine, and 398.39 grams of marijuana, as well as a shotgun, a scale and a methamphetamine recipe. The facts relating to revocation of appellant’s probation for that offense are related in the report and affidavit of the probation officer filed with the court below in 2001. On October 2, 2001, appellant provided a urine sample to the Clearlake Police Department, as required by the terms of his probation. When the sample tested positive for methamphetamine, the police obtained a warrant for appellant’s arrest. Appellant’s probation officer and several agents from the Lake County Narcotics Task Force went to appellant’s residence on October 24, 2001. Appellant initially failed to obey directives from task force agents, who observed him carrying “glassware commonly associated with the clandestine manufacture of methamphetamine.” One of the plates he was carrying held a white powdery substance the agents suspected was methamphetamine.
DISCUSSION
Two issues warrant brief discussion: appellant’s mental competence at the time of sentencing in June 2007, and whether appellant was entitled to good time credit for time served in custody in Napa State Hospital.
A.
Appellant’s sentencing in 2007 was continued several times as a result of defense counsel’s representations to the court that, notwithstanding the judicial finding of competence, he believed appellant was now mentally incompetent. Counsel also stated that appellant was not being provided needed medication and, in counsel’s opinion, he was probably in need of hospitalization. Counsel emphasized he was unable to effectively communicate with appellant. The district attorney had a very different view of the situation. According to him, “this is a continuing effort by this individual by way of a combination of malingering and actively refusing to take his meds, and he’s doing it because he doesn’t want to go to prison. He’d rather stay in the local system or the mental health. He’s done this as a conscious course of action, and that’s the finding from mental health.”
Observing that defense counsel’s indication that appellant had “regressed significantly” seemed credible, the trial court on June 4, 2007 appointed Dr. Douglas M. Rosoff, a board certified psychiatrist, to reevaluate appellant’s present mental competence. On June 21, 2007, Dr. Rosoff submitted to the court and counsel a lengthy report. In pertinent part, Dr. Rosoff stated that appellant “displayed sufficient understanding of the role and function of court room personnel. He has confidence in his defense attorney but feels the need for ‘more direction.’ He does have severe difficulty making decisions and would benefit from clear, succinct and directed conversation with defense counsel. Although struggling daily with social phobia and depression, I do not find sufficient evidence to conclude he would be unable to assist counsel in a rational manner in the conduct of his defense.” The “Summary and Conclusion” of Dr. Rosoff’s report is as follows: “In my opinion, the defendant is competent to stand trial. Upon examination he displays depression and anxiety, but has no psychotic symptoms such as hallucinations or delusions that would interfere with his ability to discuss his legal issues or develop a defense strategy. He may be apprehensive and fearful of testifying, but with reassurance from defense counsel, [he] could proceed and testify if required to do so. His testimony would be relevant to the questions and subject matter of his criminal proceedings.” Dr. Rosoff noted that appellant was currently receiving a tranquilizer (Clonopam) and an antidepressant (Trazodone), and these medications should continue. He also pointed out that an antidepressant appellant had been given (Paxil) “has been discontinued while [appellant] has been in jail due to concerns of a benign breast mass and should not be a basis for questioning his competency to stand trial.”
Based on Dr. Rosoff’s report, the trial court left intact its finding of competence, stating, “I am convinced by Dr. Rosoff’s most recent report that although the defendant is displaying depression and anxiety he is aware of what’s going on and is competent to proceed for these purposes.” The court’s determination is amply supported by the evidence and the record, which demonstrate that the court was at all times attentive to the issue of appellant’s mental state.
B.
In his sentencing memo, and also at the sentencing hearing, defense counsel noted that although the probation report recommended that appellant receive credit for time spent in custody at Napa State Hospital it was silent as to whether he should also receive credit for good behavior while confined at that facility. According to defense counsel, appellant was entitled to 256 days of credit for good behavior at Napa State Hospital. The district attorney insisted that “there’s no statutory authority for the granting of good time behavioral credits while in Napa,” and the trial court agreed.
There is no merit to defense counsel’s theory. Penal Code section 4019 provides that credit for good behavior may be given to persons “confined in or committed to a county jail, industrial farm, or road camp, or any city jail, industrial farm, or road camp” if they “satisfactorily compl[y] with the reasonable rules and regulations established by the sheriff, chief of police, or superintendant of an industrial farm or road camp” or satisfactorily carry out the “labor [assignments]” of such officials. (Pen. Code, § 4019, subds. (a)(1), (c) and (d).) Persons confined in a state mental facility have no statutory right to behavioral credits because they are not confined in any of the facilities enumerated in the statute nor subject to the rules and regulations or labor assignments of the named officials. Moreover, the idea of giving or denying good time credit to persons confined in a state medical facility is irrational. A great many such individuals are mentally incapable of the behavior that may be rewarded by good time credit under Penal Code section 4019, so that it would be unfair to deny them the credit. Since the reward could not be fairly denied, its universal availability would provide no incentive for socially acceptable behavior, which is the purpose of the statute.
C.
Appellant was at all times represented by able counsel. The record satisfactorily shows that at the time he entered his pleas appellant had been appropriately admonished by the court and understood the rights he was giving up and the consequences of his pleas, and we are satisfied that appellant entered his pleas freely and willingly.
As indicated, we find no reason to question appellant’s mental competency at the times he entered his pleas and was sentenced.
There was no sentencing error.
There are no legal issues that require further briefing.
The judgment and sentence imposed are affirmed.
We concur: Haerle, J. Lambden, J.