P. v. Juarez
Filed 6/25/13 P. v. Juarez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FOURTH
APPELLATE DISTRICT
DIVISION TWO
THE
PEOPLE,
Plaintiff and Respondent,
v.
DAVID
MICHAEL JUAREZ,
Defendant and Appellant.
E055235
(Super.Ct.No. FSB056525)
O P I N I O N
APPEAL
from the Superior Court of
Bernardino County.
Bryan Foster, Judge. Affirmed
with directions.
Kevin
D. Sheehy, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and Anthony Da Silva and
Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
In
November 2011, a jury found defendant David Michael Juarez guilty of the
years before trial. Defendant was
sentenced to 25 years to life in prison.
Defendant principally claims that
the court violated his federal due process rights and section 1369 when, on March 13, 2009, the court
did not immediately conduct a hearing on defendant’s competency to
the report of Randall Norris, Ph.D., a court-appointed psychologist, that
defendant was incompetent to stand trial.
Rather than immediately conduct the hearing, the court granted the
prosecution’s request to appoint another psychologist, Steven Jenkins, Ph.D.,
to assess defendant. After Dr. Jenkins
reported that defendant was competent, the court appointed a third expert,
Kenneth Fischer, Ph.D., to assess defendant.
After Dr. Fischer reported that defendant was competent, the court
conducted the competency hearing and the jury found defendant competent. Defendant was later tried and found guilty of
the murder. We find no due process or
statutory violation in the court’s refusal to conduct the competency hearing
until after Drs. Jenkins and Fischer evaluated defendant. (§ 1369, subds. (a), (c); see
Cal.App.4th 478, 489-490.)
Defendant further claims, and the
People agree, that defendant’s presentence custody credits were improperly
calculated, and that defendant should have been awarded 3,243 total credits
rather than 2,901 total credits. We
agree and modify the judgment to award defendant the additional presentence
custody credits. In all other respects,
we affirm the judgment.
II. FACTS AND PROCEDURAL HISTORY
A. The Murder of Diana Burch
On April 11, 1989, the body of 19-year-old Diana Burch was found in
a green duffel bag at a turnout along Highway 330. Defendant’s initials “DJ†were on the duffel
bag, and his DNA matched semen taken from the victim’s vagina and skin found
underneath the victim’s fingernails.
Defendant’s DNA was also consistent with DNA found on the duffel bag and
on an electrical cord around the victim’s neck.
During a January 2006 police interview, defendant admitted that he
killed a person who offered him sex in exchange for drugs, around 17 years
earlier. In June 2006, defendant was
charged with the murder of Burch.
B. Proceedings Concerning Defendant’s Competency to Stand Trial
On
February
28, 2007, defense counsel
(Wright) told the court that he doubted defendant’s competency to stand
trial. The court then suspended the
criminal proceedings and appointed a
Abraham Argun, Ph.D., to evaluate defendant.
On April 3, 2007,
the court adopted Dr. Argun’s written opinion that defendant was competent to
stand trial and reinstated the criminal proceedings.
On
September
24, 2007, defense counsel
(Drake) declared a new doubt as to defendant’s competency to stand trial. Members of defendant’s family were in court
and, according to defense counsel, indicated that defendant had “a long history
of mental health issues.†The court
again suspended the proceedings and appointed another mental health professional,
Robert Postman, Ph.D., to evaluate defendant.
On October 23, 2007, after reviewing Dr. Postman’s written opinion that
defendant was not competent to stand trial and required psychotropic
medications to be restored to competency, the court declared defendant
incompetent, and the criminal proceedings remained suspended.
On
November
16, 2007, the court ordered
that defendant be committed to Patton State Hospital (PSH) until his mental
competence was restored (with a maximum three-year time of commitment) and that
PSH administer antipsychotic (psychotropic) medication, involuntarily if
necessary. On February
22, 2008, after reviewing a
PSH progress report, the court ordered that defendant be retained and treated
at PSH. On July 7, 2008, after reviewing PSH reports and a certificate of mental
competence, the court found that defendant’s competency had been restored and
reinstated the criminal proceedings.
On
December
9, 2008, the court proceeded
with the preliminary examination and bound defendant over on the murder
charge.
On
December 16, 2008, defendant entered pleas of not guilty and not guilty by
reason of insanity on the murder charge, and the court appointed two doctors,
Jungyeol Oh, Ph.D. and Michael Perrotti, Ph.D., to evaluate defendant’s sanity
at the time of the offense.
(§§ 1368, 1026.) In his
report, Dr. Oh determined that defendant required involuntary antipsychotic
medications, and stated that defendant was probably sane at the time of the
offense, but it was not possible to render a more concrete analysis of his
sanity because he refused to be more forthcoming. Dr. Perrotti also concluded that it was not
possible to determine defendant’s sanity at the time of the offense. Dr. Perrotti noted that defendant’s thoughts
were disorganized and his ability to reason was so impaired that he would be
unable to testify on his own behalf.
On
February
20, 2009, after reviewing the
reports of Drs. Oh and Perrotti, defense counsel and the court declared doubts
as to defendant’s competency, and the court again suspended criminal
proceedings. The court then appointed a
new mental health professional, Dr. Norris, to evaluate defendant. (§ 1368.)
On
March 13, 2009, after reviewing Dr. Norris’s report that defendant was
incompetent to stand trial and required psychiatric hospitalization, the court
kept criminal proceedings in suspension and, after granting the People’s
request for “a second doctor evaluation,†appointed another doctor—Dr.
Jenkins—to evaluate defendant. The court
rejected defense counsel’s request to adopt Dr. Norris’s evaluation and
recommit defendant to PSH. The
prosecutor asked that the second evaluation be conducted because defendant had
already been committed to PSH where his competency had been restored.
On
April 3, 2009, after reviewing Dr. Jenkins’s report that defendant was
competent to stand trial and noting that the reports of Drs. Norris and Jenkins
reached “opposing conclusions†concerning defendant’s competency, the court
appointed a third mental health professional, Dr. Fischer, to evaluate
defendant. Like Dr. Jenkins, Dr. Fischer
concluded that defendant was competent to stand trial. On May 14, 2009, defense counsel told the
court he was unwilling to stipulate to Dr. Fischer’s report and demanded a jury
trial on defendant’s competency. The
court initially set the jury trial on July 13, 2009.
Following
several continuances, the jury trial on defendant’s competency was held on
January 26 to 28, 2010. After hearing
testimony from several health professionals, including Drs. Norris, Jenkins,
and Fischer, the jury determined that defendant was competent to stand
trial.
III. DISCUSSION
Defendant
claims that the court violated his federal due process rights and state law
(§ 1367 et seq.) in refusing to immediately
try the issue of his competency to stand trial, when, on March 13, 2009, the
court received the written report of Dr. Norris that defendant was incompetent
to stand trial. We find this claim
utterly without merit.
A. Applicable Law
Federal due process principles
and state statutory law prohibit the state from trying or
convicting a criminal defendant while he is mentally incompetent. (Drope
v. Missouri (1975) 420 U.S. 162, 181; People
v. Rogers (2006) 39 Cal.4th 826, 846-847.)
A defendant is incompetent to stand trial if he lacks a “‘“sufficient
present ability to consult with his lawyer with a reasonable degree of rational
understandingâ€â€™â€ and “‘“a rational as well as a factual understanding of the
proceedings against him.â€â€™ [Citations.]†(People
v. Rogers, supra, at pp. 846-847;
§ 1367.)
name="_ftnref3" title="">[3]
“[A]n accused has a
constitutional right to a hearing on
present sanity if he comes forward with substantial evidence that he is
incapable, because of mental illness, of understanding the nature of the
proceedings against him or of assisting in his defense. Once such substantial evidence appears, a
doubt as to the sanity of the accused exists, no matter how persuasive other
evidence—testimony of prosecution witnesses or the court’s own observations of
the accused—may be to the contrary.†(
508, 518; Pate v. Robinson (1966) 383
U.S. 375, 383-386.) The defendant has
the burden of proving his incompetency by a preponderance of the evidence. (§ 1369, subd. (f); People v. Marks (2003) 31 Cal.4th 197, 215.)
The court’s decision
whether or not to hold a competency hearing is entitled to deference, because
the court has the opportunity to observe the defendant. (People
v. Rogers, supra, 39 Cal.4th at p. 847.)
“The failure to declare a doubt and conclude a hearing when there is
substantial evidence of incompetency, however, requires reversal of the
judgment of conviction.†(
California’s procedure for determining a defendant’s competence to stand trial
is a creature of statute. (See
§§ 1368, 1369.) As pertinent,
section 1369 states: “A trial by court
or jury of the question of mental competence shall proceed in the following order: [¶]
(a) The court shall appoint a
psychiatrist or licensed psychologist, and
any other expert the court may deem appropriate, to examine the
defendant. In any case where the
defendant or the defendant’s counsel informs the court that the defendant is
not seeking a finding of mental incompetence, the court shall appoint two
psychiatrists, licensed psychologists, or a combination thereof. One of the psychiatrists or licensed
psychologists may be named by the defense and one may be named by the prosecution. . . .†(Italics added.)
B. Analysis
Defendant maintains that
the trial court violated his federal due process rights and state law when, on
March 13, 2009, and after reviewing Dr. Norris’s March 9, 2009, report that he
was incompetent to stand trial, the court refused to immediately conduct a jury
trial to determine his competency and instead appointed two more experts, Drs.
Jenkins and Fischer, to assess his competency.
As defendant points out,
Dr. Norris’s report constituted substantial evidence that defendant was
incompetent to stand trial, and was sufficient to trigger defendant’s federal
due process and state statutory right to a hearing or jury trial on his
competency. (People v. Pennington, supra, 66 Cal.2d at pp. 518-519.) But this does not mean that the court
violated defendant’s federal due process rights or state law in appointing Dr.
Jenkins, or in later appointing Dr. Fischer, to further evaluate defendant’s
competency before conducting the jury trial on defendant’s competency.
To the contrary, and as the
People point out, defendant “received precisely what the [C]onstitution
demanded: a hearing as to his
competence.†(People v. Pennington, supra, 66 Cal.2d at p. 518.) Further, nothing in the statutory scheme
governing competency proceedings (§ 1367 et seq.) prohibited the court
from appointing the additional experts to evaluate defendant’s competency
before conducting the competency hearing, even though Dr. Norris’s report
constituted substantial evidence that defendant was not competent and triggered
the court’s duty to conduct a competency hearing. (§§ 1367-1369;
People v. Pennington, supra, at p.
518.)
As indicated, section 1369 states
that “[t]he court shall appoint a psychiatrist or licensed psychologist,
appropriate, to examine the defendant.â€
(§ 1369, subd. (a), italics added.)
Ostensibly, the statute authorized the trial court to appoint Drs.
Jenkins and Fischer to examine defendant before
the court conducted the competency hearing.
In addition, section 1369, subdivision (c), states that “[t]he
prosecution shall present its case regarding the issue of the defendant’s
present mental competence,†and specifically contemplates that the prosecutor
may present expert testimony of defendant’s competency. (See Baqleh
v. Superior Court, supra, 100 Cal.App.4th at pp. 489-490 [§ 1369 authorizes the court to order a
defendant to submit to mental competency examination by an expert retained by
the prosecution].)
C. Additional Presentence Custody Credits
Defendant claims, and the
People agree, that defendant’s presentence custody credits were erroneously
calculated, and that defendant is entitled to additional presentence custody
credits. We agree.
As the parties explain,
defendant was correctly awarded 1,935 days of actual custody credits and should
have been awarded 1,308 conduct credits, rather than 966 conduct credits, for
total credits of 3,243 days, rather than total credits of 2,901 days. Defendant was taken into custody on August
23, 2006. At that time and until January
25, 2010, section 4019 specified that a defendant would accrue two days of
conduct credit for every four days in local custody. (People
v. Brown (2012) 54 Cal.4th 314, 318.)
Effective January 25, 2010, section 4019 was amended to provide for two
days of conduct credit for every two days in local custody. (People
v. Brown, supra, at p. 318.) Thus, a
defendant in continuous custody before and after January 25, 2010, accrued
conduct credits at two different rates.
(Id. at p. 322.)
Defendant therefore earned
1,251 actual credits and 624 conduct credits from August 23, 2006, through
January 25, 2010. After January 25,
2010, he earned 684 actual days credit and 684 days conduct credits. He should have been awarded total credits of
3,243 days, not 2,901 days, or 342 additional conduct credits.
IV. DISPOSITION
The
judgment is modified to award defendant 3,243 total days of presentence custody
credits, consisting of 1,935 actual days plus 1,308 conduct days. The matter is remanded with directions to
amend defendant’s abstract of judgment to reflect this modification, and to
forward a copy of the amended abstract to the
affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
KING
J.
We concur:
RAMIREZ
P. J.
MILLER
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Penal Code unless otherwise indicated.
name="_ftn2" title=""> [2] Defendant expressly waived his right to
confront witnesses on the PSH progress report, and defense counsel joined in
the waiver.
