P. v. Davood

Filed 12/23/09 P. v. Davood CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County.
Stephanie Saunter, Judge. Affirmed.

Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Joseph P. Lee and Keith H. Borjon, Deputy Attorneys General, for Plaintiff and Respondent.

_____________________

Appellant David Davood appeals from a judgment entered following a plea of guilty to count 2, stalking (Pen. Code, 646.9, subd. (b)).[1] Appellant was charged by information with count 1, stalking ( 646.9, subd. (a)); count 2, stalking ( 646.9, subd. (b)); and count 3, making criminal threats ( 422). The trial court granted appellants section 995 motion as to count 1. Appellant then pleaded guilty to counts 2 and 3 and admitted one serious prior felony conviction allegation pursuant to sections 1170.12, subdivisions (a) through (d) and 667, subdivision (b) through (i) (the Three Strikes Law). Pursuant to a plea disposition, the trial court dismissed count 3 and sentenced appellant on count 2, to the term of four years in state prison.

Appellant contends that the trial court erred in refusing to declare a doubt pursuant to section 1368 and have doctors appointed to determine appellants mental competence. We disagree and affirm the judgment of the trial court.

FACTS AND PROCEDURAL BACKGROUND

On December 11, 2008, the trial court held a sentencing hearing. The trial court stated that pursuant to the plea agreement, appellant had the option of being sentenced to state prison on count 2, which would not be a future strike, for a term of four years or being sentenced to state prison on count 3, which would be a second strike offense, for a term of 32 months.

Appellants counsel stated that appellant chose to be sentenced on count 3 as a second strike offense, to 32 months in state prison. After the trial court asked appellant if he understood that he would then have two strikes, appellant said thats what I wanted to talk to you about. The trial court explained that appellant could be sentenced to 25 years to life if he committed a third felony. Defense counsel then stated that appellant had just changed his mind after innumerable conversations Ive had with him. The trial court gave appellant and his counsel a 15-minute recess to confer. When the proceedings resumed, the trial court reiterated that appellant had the option to choose between count 2 and be sentenced to four years in state prison or count 3 and be sentenced to 32 months in state prison. The trial court asked appellant to make his decision. After conferring with appellant, his counsel stated that he believed appellant to be mentally incompetent pursuant to section 1368.

The trial court then asked appellant if he understood the nature of the proceedings. Appellant answered, To a degree, yes. When asked by the trial court what he did not understand, appellant stated that because of the paranoid schizophrenia, he was concerned that if he opted for the 32-month sentence, he might be wrongfully accused by someone who was aware of his prior strike history. The trial court found that appellant was not incompetent for merely expressing a normal concern about his prison sentence. The trial court noted that it had seen appellant several times and realized that appellant was reluctant to go to state prison. Defense counsel then stated that appellant had a long history of severe mental illness and that the trial courts statement had sent appellant into the brink of total uncertainty, as a function of his mental illness, again arguing that a section 1368 hearing was appropriate under the circumstances.

The trial court made a finding that the late mention of declaring section 1368 was a dilatory tactic. It stated that defense counsel had been in court three weeks previously requesting that appellant be allowed to make a trip to Israel. It noted that defense counsel did not raise a section 1368 issue at that time. The trial court found that the issue of incompetence only arose because appellant was concerned about his possible future criminality and was unwilling to make a decision. Defense counsel argued that appellants mental illness rendered him unable to make the decision. The trial court rejected that argument on the basis that many mentally ill people are not incompetent and that being uncertain about choosing between sentences does not equate to incompetence. The trial court explained that schizophrenic people are still able to assist in their defense and understand the nature of the proceedings. The trial court then indicated that it would make the decision for appellant if he could not decide.

Appellant then stated he would make a decision, and after some prompting, stated he would take the four years. The trial court sentenced appellant to four years as to count 2.

DISCUSSION

The trial court did not err in refusing to hold a competency hearing at the time of appellants sentencing hearing

Appellant contends that he was entitled to a competency hearing as a matter of right because the evidence of his incompetence was substantial. In the alternative, appellant submits that the trial court abused its discretion in failing to order a hearing pursuant to section 1368, or at least request an initial summary evaluation of appellants mental state in order to determine whether a hearing pursuant to section 1368 was required. We disagree with appellants arguments.

Pursuant to section 1368, subdivisions (a) and (b), the trial court must 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. At the request of the defendant or his or her counsel or upon its own motion, the court shall recess the proceedings for as long as may be reasonably necessary to permit counsel to confer with the defendant and to form an opinion as to the mental competence of the defendant at that point in time. ( 1368, subd. (a).) If counsel informs the court that he or she believes the defendant is or may be mentally incompetent, the trial court must order a competency hearing. ( 1368, subd. (b).) The declaration of doubt by appellants counsel is not by itself enough to require that the trial court order a hearing. (People v. Wade (1959) 53 Cal.2d 322, 336, disapproved on other grounds in People v. Carpenter (1997) 15 Cal.4th 312, 381382; People v. Garcia (2008) 159 Cal.App.4th 163, 170.)

The trial court has a duty under California law and the due process clause of the Fourteenth Amendment to hold a competency hearing whenever the court is presented with substantial evidence of a defendants mental incompetency. (People v. Halvorsen (2007) 42 Cal.4th 379, 401.) Substantial evidence of incompetency is evidence that raises reasonable doubt as to the defendants ability to understand the proceedings or assist counsel. (People v. Frye (1998) 18 Cal.4th 894, 952 [overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421].) A defendant must exhibit more than bizarre, paranoid behavior, strange words, or a preexisting psychiatric condition that has little bearing on the question of whether the defendant can assist his defense counsel. (People v. Ramos (2004) 34 Cal.4th 494, 508.) In the absence of substantial evidence of incompetence, a trial court is under no obligation to hold a competence hearing.
(People v. Frye, supra, at p. 951.) The courts decision whether to grant a competency hearing is reviewed under an abuse of discretion standard.(People v. Ramos, supra,at p. 507.)

Appellant acknowledges that his counsels declaration of a doubt is not alone enough to require that the trial court order a hearing, but contends that his conduct and the uncontested evidence of his diagnosed schizophrenia were sufficient to trigger the courts duty to order a hearing pursuant to section 1368. He asserts that he repeatedly changed his mind about whether to opt for a strike or a nonstrike conviction. But, appellant does not show or even argue that he did not understand the roles of the judge, the prosecutor, his defense counsel, his guilty plea or waiver of his constitutional rights or the purposes of the sentencing proceedings. Rather, the record shows that appellant understood the differences between the two prison terms he was facing at the sentencing hearing. At the hearing, appellant merely expressed the fear that he might be wrongfully accused of a third strike offense by someone who knew of his past history. Appellant, in fact, ultimately did choose his sentence. The trial court thoroughly questioned appellant and his counsel about appellants concerns with respect to his sentencing choices. Based on appellants answers and the trial courts opportunity to observe appellant during the course of the proceedings, the trial court acted well within its discretion in determining that appellant did not come within the purview of section 1368.

We conclude that the trial court did not err in concluding that there was not substantial evidence to trigger a mandatory duty to order a hearing pursuant to section 1368. Nor did the trial court abuse its discretion in failing to further investigate the claim of incompetence by ordering a mental health examination. The appointment of an expert pursuant to Evidence Code section 730[2]is discretionary with the court. (People v. Vatelli (1971) 15 Cal.App.3d 54, 61.) As previously discussed, after a thorough discussion, the trial court found no substantial evidence of incompetence. Appellant has made no showing that the trial court abused its discretion in failing to order an examination by a psychiatrist.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________________, J.

ASHMANN-GERST

We concur:

________________________, P. J.

BOREN

_________________________, J.

DOI TODD

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

[2] Evidence Code section 730 authorizes the appointment of experts when it appears to the court that expert evidence is or may be required by the court or by any party to the action.