Robinson v. Superior Court

Filed 10/23/06 Robinson v. Superior Court CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

ORIGINAL PROCEEDINGS; petition for writ of mandate.Linda J. Zachritz, under appointment by the Court of Appeal, for Petitioner.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Michael P. Farrell and Catherine G. Tennant, Deputy Attorneys General, for Real Party in Interest.

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STATEMENT OF THE CASE AND FACTS

On June 14, 2005, petitioner was arraigned on a nine count information stating several counts relating to driving under the influence with a blood alcohol in excess of .08, resisting arrest, misdemeanor hit-and-run, and driving on a suspended license. The information alleged four prior felony convictions within the meaning of Penal Code section 667.5, subdivision (b),^[1] as well as prior convictions within the meaning of Vehicle Code sections 23540 and 14601.5, subdivision (a).

On June 23, 2005, the superior court ordered a competency evaluation pursuant to section 1368.

On July 14, 2005, following examination by psychologist Gil Schmidt, petitioner was found not competent to stand trial or to cooperate. He was committed to Patton State Hospital on August 11, 2005.

On January 24, 2006, petitioner was found competent to stand trial and cooperate with counsel.

On February 1, 2006, the court ordered a competency evaluation pursuant to Penal Code section 1368.

On February 22, 2006, psychologist Gil Schmidt found petitioner competent to stand trial.

On March 1, 2006, petitioner plead no contest to count one, driving under the influence, with three or more prior convictions for similar offenses. All remaining counts and prior convictions were dismissed or stricken. Petitioner entered the plea with the understanding that he would receive a sentence of no more than three years.

On March 29, 2006, the superior court ordered a competency evaluation pursuant to section 1368.

In a report dated April 8, 2006, psychologist Gil Schmidt found petitioner competent to stand trial “within reason.” The report explained:

“While Mr. ROBINSON admits that he has been successfully treated with antipsychotic medications, he has become guarded to accepting any at this time due to a cautionary statement (that was supposedly) made by the Patton State hospital psychiatrist. Mr. ROBINSON has a truthful statement that (some of the) psychiatric medications have a cautionary statement attached to their application but that there are effective alternatives that do not have this medical concern. Nevertheless, Mr. ROBINSON has taken an all inclusive approach to antipsychotic medications. In that sense (of non compliance with psychiatric medication) he remains marginally compliant (with the suspected outcome of decompensating). But in the directives of knowing right from wrong, demonstrating adequate insight, and having the ability to cooperate with his attorney . . . he would appear marginally competent at this time.

“Mr. ROBINSON needs to have an antipsychotic medication added to his mental health regime. In order to accomplish this ‘compliance’ from Mr. ROBINSON, he strongly needs to have the psychiatrist (in the presence of the staff member who actually distributes the daily meds) spend time with Mr. ROBINSON, explaining the benefits of said medications and give him his first dose. It would appear that he needs reassurance to change his erroneous belief about psychiatric medications. Once he has been on a antipsychotic medication for 7-10 days, he will probably be more receptive (and appropriate) to returning to the courtroom.”

At the April 20, 2006 hearing, petitioner’s appointed counsel was not present. Counsel Jay Jabury submitted Dr. Schmidt’s report. Mr. Jabury stated to the court “[W]hile [the report] finds Mr. Robinson competent, it certainly was not a 100 percent clear vindication or establishment of his mental health at this time. So Mr. Rich is asking if the matter could be continued, put over to whatever date the Court wants so he can be here at the sentencing.” The matter was thereafter continued to April 27, 2006.

On April 27, 2006, when petitioner appeared for sentencing, appointed counsel Alan Rich requested a further mental evaluation pursuant to section 1368 and the appointment of a different doctor. The court denied the request and sentenced petitioner to the upper term of three years.

On May 23, 2006, petitioner filed a notice of appeal.

On July 20, 2006, petitioner filed in this court an application for permission to seek a belated certificate of probable cause in the Kern County Superior Court. This court granted the application on August 8, 2006. The request was promptly filed and the Kern County Superior Court denied the request on August 16, 2006. The instant petition challenges the denial of the request.

DISCUSSION

“In order to appeal from a judgment of conviction in the superior court following a plea of guilty, a defendant must ordinarily comply with the provisions of Penal Code section 1237.5. That section authorizes an appeal based on ‘reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings’ and establishes a procedure for effecting such an appeal. The trial court is empowered to review the statement of the grounds of the appeal to preclude those appeals which raise no issues cognizable after a guilty plea or which raise cognizable issues which are ‘clearly frivolous and vexatious . . . .’ (People v. Ribero (1971) 4 Cal.3d 55, 63, fn. 4.) . . . It is not the trial court’s responsibility to determine if there was an error in the proceedings. The trial court’s sole objective is to eliminate those appeals ‘having no possible legal basis’ by refusing to issue a certificate of probable cause. [Citations.] Section 1237.5 requires the trial court to certify any arguably meritorious appeal to the appellate courts. Thus, if the statement submitted by the defendant in accordance with section 1237.5 presents any cognizable issue for appeal which is not clearly frivolous and vexatious, the trial court abuses its discretion if it fails to issue a certificate of probable cause.” (People v. Holland (1978) 23 Cal.3d 77, 84, fn. omitted; overruled on other grounds.)

Dr. Schmidt’s April 8, 2006 report found petitioner was competent to stand trial “within reason” and that “[o]nce he has been on a antipsychotic medication for 7-10 days, he will probably be more receptive (and appropriate) to returning to the courtroom.” (Emphasis added.) In light of the ambiguous nature of Dr. Schmidt’s April 8, 2006 report, the issue of whether petitioner was competent to stand trial was not clearly frivolous and vexatious. Consequently, petitioner is entitled to appropriate relief. (Code Civ. Proc., § 1085.) A peremptory writ of mandate is proper and should issue. (Code Civ. Proc., § 1088; see Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180-181.)

DISPOSITION

Let a peremptory writ of mandate issue directing the Kern County Superior Court to reverse its denial order and grant petitioner’s request for a certificate of probable cause in case No. MF006842A

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^* Before Ardaiz, P.J., Gomes, J., and Kane, J.

^[1] All further statutory references are to the Penal Code, unless otherwise indicated.