P. v. Hernandez

Filed 10/3/08 P. v. Hernandez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Richard Kirschner, Judge. Affirmed as modified.

Pamela J. Voich, 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, Kristofer Jorstad and John R. Gorey, Deputy Attorneys General, for Plaintiff and Respondent.

______________

Juan Hernandez, also known as Luis Jose Rodriguez, Jose Luis Rodriguez, and Juan Jose Torres, appeals from the judgment entered upon his conviction by jury of first degree residential burglary (Pen. Code, 459).[1] Defendant admitted a prior conviction within the meaning of section 667, subdivision (a)(1). The trial court sentenced him to an aggregate state prison term of 17 years and awarded him credits of 1,433 days. Defendant contends that the trial court erred (1) in determining that he was competent to stand trial, thereby depriving him of his due process right to a fair trial, and (2) in its award of presentence credits.

We modify the judgment and affirm.

FACTS[2]

On May 7, 2004, at approximately 5:00 p.m., Edwin Nieto (Nieto) was advised that his home security alarm had gone off. When he arrived home, he saw that the screen on one of the windows in his house had been removed. Upon entering the house, he saw defendant climbing through a window. Nieto yelled for defendant to get out and then chased him down the street. A neighbor joined the pursuit. They eventually caught defendant who was thereafter taken into custody by the police. It was later determined that nine of Nietos DVDs were missing.

PROCEDURAL BACKGROUND

An information was filed on July 13, 2006, charging defendant with first degree burglary. That same day, defense counsel, Lisa Strassner (Strassner), declared a doubt as to defendants mental competence to stand trial pursuant to section 1368. Criminal proceedings were suspended, and Doctors Armando De Armas (De Armas) and Kaushal K. Sharma (Sharma) were appointed to examine defendant pursuant to Evidence Code section 730 and report back to the trial court. A section 1368 competency hearing was scheduled.

On October 30, 2006, the date initially set for that hearing, defendant made a Marsden[3]motion to have his attorney replaced. During the hearing on the motion, defendant said he wanted to relieve Strassner as his counsel and get a state appointed attorney. The trial court noted that Strassner was a state employee. Defendant claimed that Strassner was not getting him necessary medical attention. The trial court told defendant that it had submitted a medical order for him but would submit another if defendant was not receiving proper attention. In the course of the Marsden hearing, Strassner mentioned that De Armas found defendant mentally competent to stand trial in his initial report, but in a second report found him so uncooperative that De Armas was unable to make a determination of defendants ability to assist counsel. The trial court encouraged defendant to cooperate with the psychiatrist who has been appointed to assist you. It denied the Marsden motion, after which, defendant waived jury for the section 1368 hearing, which was continued.

On January 18, 2007, the continued date of the section 1368 hearing, defendant made a second Marsden motion. He indicated dissatisfaction with his attorney because shes not giving me any good news, only bad news. The trial court told him that she can only give the actual news and that no other attorney could do anything else and denied the motion. The trial court then proceeded to conduct the section 1368 hearing. The prosecution submitted Sharmas report of May 11, 2006,[4]which the trial court read and reviewed. Strassner submitted on that report. Based on the analysis done by . . . Sharma, the trial court determined that defendant was competent to stand trial and reinstated the criminal proceedings. Defendant was arraigned and entered a plea of not guilty, denying the special allegations.

At the February 13, 2007 pretrial conference, defendant requested another Marsden hearing. Initially, he refused to answer the trial courts inquiry and then stated that his attorney was accusing him of something he had not done and was not providing him with the arrest report or the evidence against him. Defendant wanted this information because he knew this was a serious case. Strassner responded that she did not give her clients arrest reports as a matter of policy, and when she tried to explain this to defendant, he turned his back on her. The trial court told defendant that he was not entitled to a copy of the police report, but directed Strassner to read and discuss it with him. Defendant agreed to listen to his attorney and discuss evidence with her without turning his back. The trial court denied the Marsden motion.

After the Marsden hearing, Strassner attempted to read the arrest report to defendant with an interpreter. When the pretrial conference resumed, the trial court asked Strassner if she had reviewed with defendant the facts of all of his pending cases and the evidence. Strassner reported that when she tried to do so, defendant kept cutting the interpreter off and saying he didnt want to hear anymore. He covered his ears, laid on the floor, and refused to listen. As a result, Strassner was unable to even discuss a critical sentencing issue. The trial court urged defendant to cooperate with, and listen to, counsel.

The trial court conducted yet another Marsden hearing. Defendant said he did not listen to a reading of the arrest report because he was sad having been in for too long. After the trial court told defendant that his attorney got the prosecutor to drop the special allegation that could have given him 25 years to life, defendant agreed to cooperate with counsel. The trial court denied the Marsden motion.

After a jury trial, defendant was convicted of first degree residential burglary. He admitted a prior felony conviction within the meaning of section 667, subdivision (a)(1).

At the sentencing hearing on July 26, 2007, new defense counsel, Brad Siegel (Siegel), raised the issue of defendants competence. He said he believed that defendants mental condition made him so confused that he is unable to assist counsel and that defendant was unable to understand, could not respond to questions, and could not assist him. Defendant told Siegel that he regularly was hearing voices, and those voices confuse him. Siegel reported that defendant had had brain surgery and a history of seizures. Siegel declared a doubt as to defendants mental competency, and the trial court again adjourned criminal proceedings and appointed Sharma to conduct another Evidence Code section 730 evaluation. Siegel requested the court appoint a different doctor because Sharma might be reluctant to deviate from his prior conclusions. The trial court nevertheless reappointed Sharma observing that given his familiarity with the case, it made more sense.

On September 10, 2007, the trial court conducted a second section 1368 hearing. It reviewed Sharmas August 27, 2007 report, which again found defendant competent. With no objection by defendant, the trial court found defendant competent and reinstated criminal proceedings.

DISCUSSION

I. Defendants mental competency

Defendant contends that the trial court erred in determining that he was competent to stand trial. He argues that it failed to fully and properly conduct a competency hearing once there [was] substantial evidence of incompetence presented, thereby violating his federal due process right to a fair trial. He requests that we remand for a competency hearing. This contention is not persuasive.

A person cannot be tried or adjudged to punishment while that person is mentally incompetent. ( 1367.) A conviction of a defendant when he or she is legally incompetent violates the defendants federal due process right to a fair trial. (People v. Ramos (2004) 34 Cal.4th 494, 507.) A defendant is mentally incompetent to be tried if as a result of mental disorder or developmental disability, the defendant is 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).)

Sections 1367 et. seq. set forth the procedure for resolving questions regarding a defendants mental competence to proceed with trial. If a doubt arises in the judges mind or counsel informs the court that he or she believes the defendant is or may be mentally incompetent ( 1368, subds. (a) & (b)), the trial court is required to suspend the proceedings until the question of the defendants mental competence is determined in a sanity hearing ( 1368, subd. (c)). Substantial evidence of mental incompetence to stand trial is all that is necessary to require a full competence hearing as a matter of right. (People v. Welch (1999) 20 Cal.4th 701, 738.) An accused has a constitutional right to a hearing on present sanity where the evidence raises a bona fide doubt as to his competence to stand trial. (Pate v. Robinson (1966) 383 U.S. 375, 385.)

At the competency hearing, the burden is on the defendant to show his incompetence. (People v. Medina (1990) 51 Cal.3d 870, 882-886.) The defendant is presumed competent unless he meets this burden by a preponderance of the evidence. ( 1369, subd. (f); see Medina v. California (1992) 505 U.S. 437, 446 [holding allocation of burden on defendant to show insanity constitutional].)

Defendants contention raises two questions: (1) whether he received a full and properly conducted competency hearing, and (2) whether the trial court erred in finding him competent. We consider each.

A. Adequacy of competency hearing

With respect to the first claim, defendant states: The courts failure to fully and properly conduct a competency hearing once there has been substantial evidence on incompetence presented, violated appellants federal due process right to a fair trial and requires a remand to hold such a competency hearing. This claim is premised upon the faulty assumption that the trial court failed to accord him a plenary competency hearing.

Following statutory procedure, upon finding substantial evidence of incompetence, the trial court declared doubts of competency on July 13, 2006, and July 26, 2007. On each occasion, it suspended the criminal proceedings pursuant to section 1368, subdivision (c) and appointed two psychiatrists on the first occasion and one psychiatrist on the second occasion to evaluate defendant pursuant to section 1369, subdivision (a). It then scheduled and conducted section 1368 hearings on January 18, 2007, and September 10, 2007. At each hearing, the prosecution submitted a psychiatric report of Sharma finding defendant competent. Defendant did not arrange to question Sharma at the hearings or to present additional evidence, but rather, on each occasion, submitted on Sharmas report. Defendant cites no authority indicating that more was required. A section 1368 hearing at which the only evidence is a psychiatric report is a procedurally adequate hearing. (See People v Hightower (1996) 41 Cal.App.4th 1108, 1111 (Hightower).)

Defendant suggests that the procedure followed in connection with the second declaration of doubt, after jury trial and immediately preceding a court trial on the allegation of prior convictions and sentencing, was deficient because the trial court appointed only Sharma, who had previously found defendant competent, to reevaluate him. Defendant argues that Sharma might have been biased because of his reluctan[ce] to deviate from his pre-trial findings. We disagree. Defendant cites no authority in support of this claim, and we have found none suggesting that such reappointment is improper. Moreover, nothing in the record suggests that Sharma harbored any bias against defendant. It was imminently reasonable for the trial court to select a psychiatrist familiar with defendant and therefore possessing additional insight into his behavior that would not be available to a psychiatrist evaluating him for the first time. Section 1369 requires appointment of only one psychiatrist. ( 1369, subd. (a).)

People v. Pennington (1967) 66 Cal.2d 508, relied upon by defendant, is inapposite. That case involved the question of whether the trial court erred in failing to declare a doubt and accord the defendant a section 1368 hearing. Here, the trial court declared a doubt on two occasions and conducted two section 1368 hearings.

B. Sufficiency of evidence of competence

Defendants claim that the trial court erred in finding him competent is equally unavailing. Defendant points to the statements of his attorneys, his inability to consult with his attorneys as reflected in four Marsden motions, and his in-court behavior as evidence that he was incompetent. We review the trial courts determination of competency for substantial evidence to support that determination (Hightower, supra, 41 Cal.App.4th at p. 1111), viewing the record in the light most favorable to the trial courts finding (People v. Marshall (1997) 15 Cal.4th 1, 31). We do not reweigh the evidence. When considered under this standard, the outcome is clear. The trial courts rulings at both competency hearings were based upon Sharmas reports which found defendant competent. Those reports by themselves were sufficient to support the trial courts findings. (See People v. Leonard (2007) 40 Cal.4th 1370, 1391; see also Hightower, supra, at p. 1111 [substantiality of evidence of competence determined on submitted reports].)

II. Credits

The trial court awarded defendant 1,433 days of presentence custody credits, consisting of 1,239 days for actual time served and 194 days of conduct credits. Defendant contends that he was entitled to 618 days of conduct credits. He argues that under section 4019 he is entitled to approximately one-third conduct credits and that the violent felony exception to that rule, limiting good time credits to 15 percent of actual time served, is inapplicable because his burglary conviction is not a violent felony.

The Attorney General argues that the defendants burglary conviction is a violent felony, and hence, the 15 percent limitation on conduct credits is applicable. The Attorney General further argues that the trial courts award of 194 days of conduct credits was erroneously calculated and must be reduced to 186 days. We agree with the Attorney General.

Section 2900.5 provides that a defendant shall receive credit for all days served in custody. Section 4019 provides for conduct credits calculated so that six days will be credited for each four days in actual custody. ( 4019, subd. (f).) But section 2933.1 provides that a person convicted of a violent felony as defined in section 667.5, subdivision (c) shall receive conduct credits limited to 15 percent of the actual period of confinement. ( 2933.1, subd. (c).)

Defendant was convicted of first degree burglary. First degree burglary is burglary of an inhabited dwelling house. ( 460.) Not all first degree burglaries are considered violent felonies under section 667.5, subdivision (c). They are violent felonies only when it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary. ( 667.5, subd. (c)(21).) We must therefore decide whether it was charged and proved that a person was present in the residence when defendant committed the Nieto burglary.

The information alleged that the defendant did enter an inhabited dwelling house . . . occupied by Edwin Nieto, with the intent to commit larceny and any felony . . . . Section 459 defines inhabited as meaning currently being used for dwelling purposes, whether occupied or not. A dwelling house, as used in section 460, is inhabited if a person resides therein even though it may be temporarily unoccupied.(People v. Guthrie (1983) 144 Cal.App.3d 832, 839.) The word occupied as used in section 460 means that persons are actually present in a dwelling. (Id. at p. 840.) It was therefore charged that Nieto was present during the burglary by the allegation that he occupied the dwelling house.

Nietos presence was also proved. He returned home from work after being advised that his burglar alarm had gone off. He entered the house as defendant was in the window, either exiting or entering the premises. When he did so, he was present in the dwelling during the commission of the burglary, as defendant had not yet reached a place of temporary safety. In fact, defendant never reached a place of safety, as Nieto and a neighbor chased and apprehended him. (See People v. Alvarado (2001) 87 Cal.App.4th 178, 191 [during the commission of a burglary refers to that period of time between the burglars initial entry . . . and the burglars escape to a place of temporary safety]; People v. Masbruch (1996) 13 Cal.4th 1001, 1008; see People v. Portillo (2003) 107 Cal.App.4th 834, 843-844.) Thus, it was both charged and proved that Nieto was present in the residence during the burglary, supporting the finding that defendant committed a violent felony.[5]

Consequently, defendant was entitled to only 15 percent conduct credits. The parties agree that defendant had 1,239 days of actual presentence custody credits. They further agree that the trial court miscalculated the conduct credits based on a 15 percent limitation. Fifteen percent of 1,239 days is an additional 186, not 194 days as awarded by the trial court. Consequently, defendant was entitled to only 1,425 days of credit, not the 1,433 days awarded. The judgment is amended to reflect the correct number of days.

DISPOSITION

The judgment is modified to reflect that defendant is entitled to 1,425 days of presentence credit and is otherwise affirmed. On remand, the trial court is directed to correct the abstract of judgment to reflect the correct number of days of presentence credit.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

___________________________, J.

CHAVEZ

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] Given the nature of the issues presented, we provide only an abbreviated statement of the facts.

[3]People v. Marsden (1970) 2 Cal.3d 118 (Marsden).

[4] There is no copy of a May 11, 2006 report from Sharma in the record.

[5] As with other sentencing facts, proof that a first degree burglary falls within section 667.5, subdivision (c)(21), is properly presented to the sentencing court. (People v. Garcia (2004) 121 Cal.App.4th 271.)