P. v. Caro

Filed 4/29/08 P. v. Caro CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

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Defendant John Archangle Caro was convicted of committing a lewd act upon a child after he pled no contest. On appeal, he contends the trial court erred when it failed to conduct a competency hearing after he produced a psychological report prior to sentencing that concluded he was legally incompetent.^[1] We agree and reverse with instructions to conduct a competency hearing consistent with sections 1367 through 1369 of the Penal Code.^[2]

FACTUAL AND PROCEDURAL BACKGROUND

From late 2004 to the end of 2005 defendant served in the Iraq War. Upon return to his wife, daughter, and stepdaughter at the end of his tour of duty, defendant exhibited signs of posttraumatic stress disorder (stress disorder) with major depression. In August 2006, defendants wife contacted the Manteca Police Department and alleged defendant had molested his stepdaughter.

In a February 2007, information the People charged defendant with three counts of committing lewd acts upon a child (with special enhancements due to substantial sexual conduct with a child under the age of 14) and one count of exhibiting harmful material to a minor. Defendant initially pled not guilty to the charges and not guilty by reason of insanity. The trial court referred defendant to Gary Cavanaugh, M.D., and John Chellsen, Ph.D., to evaluate his sanity at the time of the alleged offense. While both doctors confirmed defendants stress disorder with major depression, both concluded defendant was sane at the time of the alleged offenses. Neither doctor reported on whether defendant was legally competent to stand trial.

In May 2007, defendant withdrew his earlier pleas and pled no contest to one count of committing a lewd act upon a child, for which he would serve a six-year sentence. The People dismissed the remaining counts and enhancements. In July 2007, with newly retained counsel, defendant moved to withdraw his May 2007 no contest plea. Attached to the notice of motion was a declaration from defendants counsel that expressed his belief defendant was presently incompetent and a report from Robin Schaeffer, Ph.D., which concluded defendant was incompetent at the time of his plea because he lacked the capacity to rationally assist counsel in his defense.

Dr. Schaeffers July 24, 2007, report specifically addressed defendants mental competence when . . . he made the decision to plead guilty as part of a plea bargain which included a six year term of imprisonment. Dr. Schaeffer conducted five psychological interviews with defendant, three interviews with Veterans Administration officials and doctors, and one interview with defendants former defense counsel. Dr. Schaeffer also reviewed defendants numerous psychiatric, emergency room, employment, and law enforcement records.

After synthesizing a chronological history from these materials, Dr. Schaeffer stated his forensic conclusion: In my opinion, during the period of [defendant]s legal representation in this case he suffered serious symptoms of . . . stress disorder . . . with major depression. He suffered from these conditions at the time of his consideration of the plea bargain, and at the time he entered a plea of guilty. In my opinion his symptoms at the time he considered and entered the plea were sufficiently severe as to render him legally incompetent, as they caused him to lack capacity to rationally assist for his defense. [] Because of his mental illnesses, [defendant] was unable to share with his attorney the details of his traumatic wartime experiences, or even that he was in combat, which are facts essential to his defense in terms of offering possibilities of legal mitigation. The profound and pervasive guilt engendered by [defendants stress disorder] and major depression prevented [him] from being adequately motivated to work with his attorney in pursuit of bringing mitigating circumstances to the attention of the prosecutor and to the attention of the Court. His guilt so disposed him to accept or even seek punishment that he could not recall that negotiating to reduce the offered plea bargain from 6 years to 3 years was still a possibility, and his attorney had to urge him to not accept the offer of 6 years while further negotiation to reduce the offer to 3 years was still, in the legal opinion of counsel, possible. [Defendant]s state of guilt resulting from his mental illnesses, in the opinion of his attorney at the time, compromised his ability to testify effectively on the stand in his own defense. For all these reasons, [defendant] was not mentally competent to assist counsel at the time he entered the plea of guilty.

At the September 2007 hearing on defendants motion to withdraw his no contest plea, defendants counsel addressed the trial court as follows: Your Honor, Id submit to the Court that Dr. Shaffers [sic] report as attached to my points and authorities is sufficient to make a prima facie showing that my client is incompetent, and Id ask the Court to grant the motion to withdraw the plea at this time or set it on for hearing under [Penal Code section] 1368 to determine my clients competency. [] Because as I said in my declaration, based on Dr. Shaffers [sic] review and report to me, Id entertain a serious doubt as to [defendants] competency at the time he entered the plea.

The trial court denied defendants motion to withdraw his plea, reasoning I took [defendants] plea here, I had an opportunity to observe him and to see his interactions when I went through his rights with him, and based on what I saw and what the other doctors saw, and the way he acted at the time of the plea, I dont see, even if we accept Dr. Shaffers [sic] report, even if [Dr. Schaeffer] were to come here and say the same things that he said in his report here, that there really is any basis for concluding that the defendant was not able to understand what he was doing at the time and cooperate with counsel in terms of entering the plea. The trial court did not address defendants request for a competency hearing and sentenced defendant to a term of six years in prison.

DISCUSSION

The Trial Court Erred When It Failed To

Conduct A Competency Hearing After Defendant

Produced A Psychological Report That

Concluded Defendant Was Legally Incompetent

Defendant contends the trial court erred when it did not suspend proceedings to conduct a competency hearing after defendant produced Dr. Schaeffers July 2007 report. We agree.

The law on competency is well established. A defendant is presumed competent unless it is proved otherwise by a preponderance of the evidence. [Citation.] As a matter of due process, the state may not try or convict a mentally incompetent defendant. [Citations.] Under [Penal Code] section 1367, subdivision (a), a defendant cannot be tried or adjudged to punishment while he is mentally incompetent. [Penal Code] [s]ection 1368, subdivisions (a) and (b), respectively, require the trial court to initiate proceedings in order to determine a defendants present sanity if a doubt arises in the mind of the judge as to the mental competence of the defendant or [i]f counsel informs the court that he or she believes the defendant is or may be mentally incompetent. To be competent to stand trial, defendant must have sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and a rational as well as factual understanding of the proceedings against him. [Citations.]

If a defendant presents substantial evidence of his lack of competence and is unable to assist counsel in the conduct of a defense in a rational manner during the legal proceedings, the court must stop the proceedings and order a hearing on the competence issue. [Citations.] In this context, substantial evidence means evidence that raises a reasonable doubt about the defendants ability to stand trial. [Citation.] The substantiality of the evidence is determined when the competence issue arises at any point in the proceedings. (People v. Ramos (2004) 34 Cal.4th 494, 507.)

The People contend defendant failed to produce substantial evidence of his incompetence. We disagree.

[I]f a psychiatrist or psychologist who has had sufficient opportunity to examine the accused, states under oath with particularity that in his professional opinion the accused is, because of mental illness, incapable of understanding the purpose or nature of the criminal proceedings being taken against him or is incapable of assisting in his defense or cooperating with counsel, the substantial-evidence test is satisfied. (People v. Ramos, supra, 34 Cal.4th at pp. 507-508.) A psychiatrist or psychologists medical reports satisfy this test in lieu of testimony. (See People v. Tamos (1977) 74 Cal.App.3d 75, 91.)

Here, defendant produced substantial evidence of his incompetence. Dr. Schaeffers five psychological interviews gave him sufficient opportunity to examine defendant. In his report, Dr. Schaeffer concluded defendants stress disorder with major depression rendered him legally incompetent because the condition caused him to lack capacity to rationally assist for his defense when he entered his no contest plea. While Dr. Schaeffer specifically limited his opinion to the time of defendants no contest plea, the report was completed barely two months after the plea based on interviews conducted in the interim. The proximity of defendants no contest plea to the later proceedings to withdraw the plea, combined with counsels own opinion that defendant remained incompetent, were sufficient to constitute the substantial evidence necessary to require a competency hearing.

The People contend the trial court acted within its discretion when it did not conduct a competency hearing because it had the opportunity to observe [defendant]s demeanor first-hand and concluded Dr. Schaeffers report was muddled. In the absence of substantial evidence of incompetence, [a] trial courts decision whether or not to hold a competence hearing is entitled to deference, because the court has the opportunity to observe the defendant during the proceedings. (People v. Rogers(2006) 39 Cal.4th 826, 847) However, substantial evidence of incompetence is sufficient to require a full competence hearing even if the evidence is in conflict. (People v. Welch (1999) 20 Cal.4th 701, 738.) The trial courts assessment of defendants demeanor sheds no light on whether Dr. Schaeffers report constituted substantial evidence of incompetence. The trial courts conclusion the report was muddled is irrelevant as well, unless we construe it as an implicit finding that the report did not constitute substantial evidence. Even if we were to construe the trial courts comment in that manner, we would reject the courts conclusion, as we are equally capable of assessing the evidentiary value of the report, and we conclude it does rise to the level of substantial evidence. (People v. Ramos, supra, 34 Cal.4th at pp. 507-508.) The trial court therefore had a duty to suspend all proceedings after defendant produced his counsels declaration and Dr. Schaeffers report and should not have ruled on defendants motion to withdraw his plea without first conducting a competency hearing. (People v. Ramos, supra, 34 Cal.4th at p. 507.)

DISPOSITION

The judgment is reversed with instructions to vacate the order denying defendants motion to withdraw his no contest plea and to conduct a full competency hearing consistent with Penal Code sections 1367 through 1369.

ROBIE , J.

We concur:

DAVIS, Acting P.J.

NICHOLSON , J.

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^[1] Defendant also contends the trial courts denial of his motion to withdraw his no contest plea was an abuse of discretion. Since we conclude the trial court should have suspended proceedings upon receipt of defendants psychological report before the court ruled on his motion, we need not reach this issue.

^[2] All further statutory references are to the Penal Code unless otherwise indicated.