P. v. McElroy

Filed 5/11/06 P. v. McElroy CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County.

Ronald S. Coen, Judge. Affirmed.

Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth N. Sokoler and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Rickie McElroy pled guilty to one count of receiving stolen property in violation of Penal Code[1] section 496, subdivision (a), and admitted that he had suffered a prior serious felony conviction for which he had served a prison term within the meaning of sections 667, 667.5 and 1170.12. The trial court imposed but suspended execution of a sentence of seven years in state prison. The court placed appellant on five years' formal probation upon a number of conditions, including that he serve 365 days in county jail, cooperate in a plan for psychological counseling, and possess no deadly weapons.

About two years later, in April and May, 2005, the trial court held a formal revocation hearing and revoked appellant's probation. The court then imposed the previously suspended sentence of seven years in state prison.

Appellant appeals from the judgment of conviction, contending that the trial court erred in refusing to suspend the parole revocation proceedings for a competency hearing. We affirm the judgment of conviction.

Facts

On March 1, 2005, while appellant was in custody on another matter, the trial court summarily revoked his probation in this case.

A formal parole revocation hearing was held beginning on April 29, 2005. At this hearing, appellant's parole officer testified that appellant had been arrested twice in late 2004, on November 25 and December 27, and had failed to notify the officer of these arrests, as was required by the conditions of his probation. On January 27, 2005, appellant apparently pled no contest to a misdemeanor violation of making criminal threats in connection with the December 27, 2004 arrest.

Appellant's girlfriend, Sabrina R., testified about events leading up to the December 27 arrest. On that date, she obtained a restraining order against appellant. She then went to work, where she locked the door. At about 5:00 p.m., Sabrina saw appellant standing outside the glass door to her office building, holding a baseball bat, a screwdriver and several other items. Appellant banged and rattled the door and shook the bat. He looked angry. Appellant said something like: "I'm going to get you." Sabrina called police, who came and arrested appellant.

Appellant testified at this hearing. After answering a few questions, appellant claimed that he was a schizophrenic who was in a manic phase because his medication had been cut. He also said: "I was lied to about seven years joint suspended. [¶] What you said, there was nothin and then I heard him in the back room state go bring him back and violate him later, which is – " Appellant's counsel interrupted: "You heard this judge say that?" Appellant replied: "With the D.A. when I'm in the back room."

After a discussion of appellant's competency, set forth in more detail below, appellant said: "He's out to get me. And he's playing fucking games. He knew – I told him I wanted to fight the case. And he said there was no seven years suspended. Now they say there is. Now they say I was aware, and I took this. I was out. It's a bunch of bullshit, straight bullshit."

When appellant's counsel attempted to question him further, Appellant said to the court: "You know had seven years joint suspended. You said I did not have it. You got me to take the deal and to bring me back and violate me later." As counsel and the court tried to discuss appellant's mental state, appellant interjected: "You did it. Now you are trying to control everything. Naw, I ain't fooled." He also said: "You sat in the back and you know it. You have to look yourself in the mirror." His final comment before being removed was: "the damn thing."

When the probation hearing resumed on May 9, appellant made the following statement: "Oh, no, they made a deal with me saying that there was no probation violation. That is I take the deal, in other words, I won it and beat it and they said there was no joint suspended. And now all of a sudden they are saying its joint suspended. [¶] I'd like to be able to withdraw my plea and fight the original case and beat it because she lied." After a discussion of the lies, he added: "I would have fought it and beat it if that was the case. I told 'em I had seven years suspended. They said no, I don't have it. Do you know what I mean? So I feel like I've been tricked into taking the guilty not the guilty but the no contest plea to the case saying I was only going to get six months, and I had to do nine month violation anyways it would eat it up, and I could do it anywhere. And I feel like I was tricked."

Shortly after this statement, the prosecutor began his cross-examination of appellant. Appellant's statement was generally responsive to the cross-examination questions.

At the conclusion of the hearing, the trial court found that appellant had violated his probation, and imposed the previously suspended sentence of seven years in state prison.

Discussion

Appellant contends that the trial court erred in failing to suspend the probation revocation hearing for a section 1369 competency hearing. We see no error.

A defendant is mentally incompetent to stand trial when he suffers a mental disorder or developmental disability rendering him "unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner." (§ 1367, subd. (a).) "A defendant is presumed competent unless the contrary is proven by a preponderance of the evidence." (People v. Lawley (2002) 27 Cal.4th 102, 131.)

If a doubt arises in the mind of the trial court as to the mental competence of a defendant, the court shall state that doubt and inquire of defense counsel whether in the opinion of the counsel the defendant is mentally competent. (§ 1368, subd. (a).) If defense counsel "informs the court that he or she believes that the defendant is or may be mentally incompetent," the court shall order a hearing to determine the defendant's competency. (§ 1368, subd. (b).)[2] If defense counsel believes that the defendant is competent, the court may nonetheless order a hearing on competency. (Ibid.)

A trial court is required to conduct a hearing pursuant to section 1368 to determine a defendant's competency whenever substantial evidence of incompetence has been introduced. (People v. Frye (1998) 18 Cal.4th 894, 951.) Substantial evidence is evidence that raises a reasonable doubt about the defendant's competence to stand trial. (Id. at p. 952.)

A "reviewing court determines whether substantial evidence, viewed in the light most favorable to the verdict, supports the trial court's finding. [Citation.] 'Evidence is substantial if it is reasonable, credible and of solid value.' [Citation.]" (People v. Lawley, supra, 27 Cal.4th at p. 131.)

Appellant contends that his counsel expressed doubt of appellant's competence on April 29, the first day of the revocation hearing, and that section 1368, subdivision (b) required the court to continue the proceedings. We do not agree.

Appellant's counsel stated that he was "having some personal questions about [appellant's] competence." He added that he thought that appellant was "somewhat out of control mentally right now." The court stated that it would be glad to interrupt the proceedings if counsel wished, but that the court did not have a doubt about appellant's competence. The court believed that appellant was merely angry.

Appellant's counsel did not reply to the court's question about interrupting the proceeding, but instead asked appellant a substantive question and got a nonresponsive answer. Counsel then stated: "I think my problem is I don't know whether he's nonresponsive or he's close to losing control." The trial court then repeated appellant's counsel's question to appellant, and appellant again gave a nonresponsive answer. The court ordered appellant removed because he was "acting up."

Following appellant's removal, the court again asked appellant's counsel if he wished to have the proceedings interrupted and a psychiatrist appointed. Counsel replied, "I'm not sure. Perhaps we should interrupt the proceedings now and come back another day.

We understand counsel's comments, taken as a whole, to mean that he had doubts about whether to declare a doubt on April 29. Appellant has not cited, and we are not aware of, any cases which require a court to suspend proceedings under such circumstances. We note that when the hearing resumed on May 9, appellant's counsel stated, "I believe that [appellant] is competent." Thus, counsel resolved his doubts in favor of competency.

Appellant contends that even if his counsel did not declare a doubt about his competency, there was substantial evidence that raised a reasonable doubt about his competency to stand trial and so the trial court should have ordered a competency hearing on its motion.

Appellant contends that a reasonable doubt about his competency existed because he "lost emotional control," used "bad language" in front of the court and "displayed an apparent delusion that he could hear what went on in chambers, as well as a paranoid belief that the judge and prosecutor were whispering together about him." He also contends that his statements that he did not believe that the suspended seven-year prison sentence would be imposed if he pled guilty to the more recent charge of misdemeanor criminal threats shows that he was not "tracking reality."

It is not uncommon for a defendant to express incredulity when probation is revoked and a suspended sentence is imposed, and it is not unknown for a defendant to claim that he did not understand that the suspended sentence would ever be imposed. These statements are almost certainly the result of wishful thinking, not incompetency.

The trial court was in a much better position than this Court to evaluate whether appellant actually believed what he was saying about the suspended sentence, or was merely arguing with the court that it was, in essence, unfair that a misdemeanor conviction should result in seven years in prison. The trial court, who was able to observe appellant, found that appellant was angry.

It is less common for defendants to display anger and use bad language in front of the court, but it is certainly not unknown. Again, the trial court was in the best position to evaluate whether appellant was choosing not to cooperate or was not capable of cooperating in his own defense. The trial court, which was able to observe appellant, found that he was "acting up."

We do not believe that appellant necessarily displayed a delusion that he could hear what went on in chambers, as well as a paranoid belief that the judge and prosecutor were whispering together about him. Appellant stated: "What you said, there was nothin and then I heard him in the back room state go bring him back and violate him later, which is –" Appellant's counsel interrupted: "You heard this judge say that?" Appellant replied: "With the D.A. when I'm in the back room." Appellant's description of the event places him in or near the back room when the judge and D.A. were supposedly discussing his case. He makes no reference to whispering. There are several possible explanations for appellant's account of this conversation. As appellant contends, he could have imagined the conversation, in which case he would be delusional. As respondent points out, he may have fabricated the conversation entirely, in an attempt to "prove" that he did not knowingly plead guilty in the underlying case. This would not make him delusional, just desperate to avoid prison time. The trial court, which was able to observe appellant, found that appellant was simply angry.

On the record before us, we see no abuse of discretion in the trial court's findings. The bare transcript makes it clear that appellant was angry that he faced a seven-year prison term. It was more than reasonable for the trial court to find that appellant's behavior was a protest against the imposition of the seven year suspended sentence rather than a manifestation of mental incompetence.

To the extent that appellant contends that the trial court was required to hold a hearing because appellant had schizophrenia, we do not agree. Appellant contends that only a qualified mental health professional could provide an objective assessment of how a defendant's schizophrenia affected his competency at any given time. Acceptance of appellant's contention would in effect create a presumption that certain defendants are incompetent. The law is to the contrary. Defendants are presumed competent. A defendant must show more than a preexisting psychiatric condition to show incompetency to stand trial. (People v. Ramos (2004) 34 Cal.4th 494, 508.) Even a history of serious mental illness does not necessarily constitute substantial evidence of incompetence. (People v. Blair (2005) 36 Cal.4th 686, 914.)

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

We concur:

TURNER, P. J.

KRIEGLER, J.

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[1] All further statutory references are to that code unless otherwise indicated.

[2] Defense counsel may declare a doubt on his or her own initiative as well.