P. v. Ruiz

Filed 1/27/10 P. v. Ruiz CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge.

Phillip J. Cline, District Attorney, Don H. Gallian and William E. Yoshimoto, Assistant District Attorneys, Barbara J. Greaver and Paula C. Clark, Deputy District Attorneys, for Plaintiff and Appellant.

Marilyn G. Burkhardt, under appointment by the Court of Appeal, for Defendant and Respondent.

-ooOoo-

A jury found Miguel Angel Ruiz (Ruiz) competent to stand trial. The trial court concluded there was no reasonable, credible evidence to support a finding Ruiz was competent and issued judgment notwithstanding the verdict. The People contend the trial court applied an impermissible standard in setting aside the jurys verdict and ask us to reinstate the jurys verdict. We disagree with the People and will affirm the trial courts entry of judgment notwithstanding the verdict.

FACTUAL AND PROCEDURAL SUMMARY

On February 6, 2007, 17-year-old Ruiz was charged with murdering his mother. On January 4, 2008, the trial court received a report from Dr. Thomas Middleton and suspended criminal proceedings pursuant to Penal Code section 1368.^[1] The trial court appointed Dr. Howard Glidden to do a competency examination pursuant to section 1369.

On December 9, 10, and 11, 2008, a jury trial was held to determine Ruizs competency to stand trial on the criminal charges. At the competency trial, Ruiz presented testimony from the two neuropsychologists who had performed competency exams. The prosecution presented testimony from two correctional officers who had interacted with Ruiz while he was in jail awaiting trial, a letter Ruiz sent to his girlfriend, and a DVD and transcript of Ruizs interview by officers shortly after the incident.

Middletons Expert Testimony

Middleton testified that he was a psychologist, holding a doctorate in psychology and a masters degree in counseling. He specialized in neuropsychology, which is the assessment and treatment of learning disabilities, brain damage, and neurological and neuropsychological impairment. Middleton had expertise in dealing with mental retardation or developmental delays. Middleton had done numerous competency evaluations for the courts and previously had worked as an expert for the prosecution, the defense, and the courts.

Middleton interviewed Ruiz on four separate occasions, each interview lasting two to three hours. Ruiz was 17 and then 18 during the time of Middletons interviews and assessments. Middleton also reviewed various records, including school, mental health, and detention facility records. Middleton noted that Ruiz had a well-documented history of depression, language and communication problems, impulse control problems, and learning disabilities.

During the interviews, Middleton administered a comprehensive battery of tests to determine Ruizs intellectual level and neuropsychological functioning. He also administered two specific competency assessment procedures that dealt with court-related issues.

On the Kaufman, or K-BIT, intelligence test, Ruizs overall score was 85. A score of 85 meant that Ruiz had borderline intellectual functioning; about 90 percent of the population would score higher. On the Wechsler intelligence scale, a more comprehensive intelligence test, Ruizs overall score was 72, placing him in the borderline range of intellectual functioning and indicating mild mental retardation.

Middleton found that Ruiz had a severe language disorder. The specific diagnosis was receptive expressive language disorder, which meant that Ruizs receptive and expressive language skills were impaired because an organic brain- processing deficit was interfering with language skills. The diagnosis also is known as aphasia, which is a language deficit. A receptive aphasia means the person does not understand what is being said to him or her. Expressive aphasia means the person can understand what is being said to him or her fairly well, but cannot talk about it rationally. Middleton opined that Ruiz had severely impaired expressive language skills and below average receptive language skills. Consequently, Ruizs ability to converse, explain, or impart information was severely impaired.

Middleton also diagnosed Ruiz as having impaired memory skills. In one test, which was geared to an elementary school level, Ruiz scored a 1, the lowest possible score. Middleton opined that this meant Ruiz had some concept of what had happened in the past, had a problem with immediate memory or recall, and would be inclined to confabulate -- to make up something to fill in the gaps in his recall.

Middleton concluded the findings were consistent with Ruizs school history. Ruizs grades were not good and he did not talk in the classroom. Ruiz also used mutism as a coping strategy, meaning that if he were confused or overwhelmed, he would not talk because he would be unable to organize his thinking. Ruiz had been provided with special education services, but the services had not been adequate to address his needs.

Middleton found that Ruiz tried to put on a good front, which was typical of individuals with learning disabilities or brain damage. Ruiz tried hard to appear as though he were functioning at a higher level than he was.

On the two assessments used to determine competency, Ruizs performance was impaired. The assessments are used to determine if the defendant has a rational and factual understanding of the courtroom, the charges, and how to assist and participate with his or her attorney. A defendant needs to be able to follow courtroom proceedings, to monitor and process what a witness is saying, and to discuss the case with an attorney.

When asked open-ended questions about the role of a judge, an attorney, and preparing for trial, Ruiz was unable to answer. During the first two interviews with Middleton, Ruiz was unable to articulate the charges against him. It was not until the fourth interview that Ruiz was able to acknowledge that he was charged with killing his mother. Ruiz consistently was unable to comprehend, articulate, or respond to questions that were part of the competency assessment instrument (CAI).

The competence assessment for standing trial for defendants with mental retardation (CAST-MR) consisted of three subparts to assess competency. In each of the three areas, Ruizs answers consistently were below average and in the marginal range. Ruiz had a basic understanding that an attorney represented him, but could not explain how to interact with his attorney. Ruiz had difficulty with the concepts of guilt and innocence. Ruiz had a passive recognition of his Miranda^[2]rights, but could not explain or apply those rights in any meaningful manner.

Based on Ruizs performance on the CAI and CAST-MR, Middleton opined that Ruiz was not competent to stand trial because he did not have a rational and factual understanding of the charges and how to participate with his attorney at a competent level. Ruiz was not able to deal with complex issues, such as the charges and courtroom proceedings, because of his low level of intellectual functioning, his language problems, and his memory problems.

Middleton was of the opinion that there was no way to compensate for Ruizs inability to follow courtroom proceedings because Ruiz had such a pervasive cognitive deficit and deficits in his language, memory, attention, learning, reading, and writing. Ruiz could not be restored to competency because he never was competent to begin with.

Gliddens Expert Testimony

Glidden testified that he was a neuropsychologist with a doctorate in psychology. After receiving his doctorate, he did a fellowship at Johns Hopkins University in neuromedicine. Glidden had worked as a neuropsychologist at a childrens hospital and a psychiatric hospital. At the time, he had a private practice focusing on assessments and consulted with the Central Valley Regional Center, which serves people with developmental disabilities.

Glidden prepared a competency evaluation of Ruiz. To this end, Glidden interviewed Ruiz once, when Ruiz was 19 years old, and reviewed various reports. Glidden administered a battery of tests, during which Ruiz was cooperative and able to complete all the tasks he was asked to do.

Glidden determined Ruizs full scale intelligence score to be 69, which he deemed in the extremely low range. Ruizs verbal score was 64, where the average is 100. Ruiz did better on nonverbal tests, such as drawing and hand/eye coordination activities, where he scored in the average range.

Glidden determined that Ruiz had a significant deficit with language functions. The language deficit was such that Glidden felt he could not trust that Ruiz understood him and Glidden could not take what Ruiz said at face value. After determining that Ruizs language and visual skills were markedly different, Glidden administered further tests in order to determine more specifically the source of Ruizs language problems.

Ruizs single word receptive language ability showed that his single word reading ability was at the 5.7 grade level; his sentence comprehension was at the 3.9 grade level. The difference between single word and sentence comprehension indicated a practicing or rehearsal of single words.

Glidden concluded that Ruiz had a developmental language disorder, meaning that the left part of his brain, which deals with language skills, did not develop as well as the right part of the brain, which deals with nonverbal skills. Ruizs disorder involved both understanding and expressing language. Glidden believed that Ruiz had been born with the disorder because a brain injury after birth would have affected his motor skills, which were intact.

Glidden stated that one component of a competency evaluation was to determine if the problem could be fixed. In this case, where the problem was at the single word level, it would take a great deal of time to fix, if it was fixable. Glidden testified that when a person is born with a developmental language disorder of this magnitude, the remedy is to put the person in a repetitive environment with a low language requirement. Glidden concluded that Ruiz would not do well in a court environment because a court trial is very verbal with a complex language requirement.

When interviewed by Glidden, Ruiz expressed slightly more understanding of courtroom proceedings than he had when interviewed by Middleton, but thought that the district attorneys role was to help him and he was unable to articulate the concept of what a witness was or a defendant.

Glidden opined that it would be difficult for Ruiz to work with an attorney because that would involve a complex language environment. Glidden determined that Ruiz would have difficulty understanding instructions and advice of counsel, communicating relevantly with counsel, making a decision after receiving advice, working with counsel to help plan a legal strategy, and protecting himself and using available legal safeguards, such as not incriminating himself.

Glidden acknowledged that Ruiz would understand more if defense counsel could spend more time with him, but opined that Ruiz would never understand some concepts, such as compound sentences or cause and effect relationships, regardless of the language used or how much time counsel spent with him. There was no way that defense counsel would be able to explain to Ruiz what was happening during trial because it would take a lot of time and effort to raise Ruizs level of understanding to a point where he could understand defense counsel and counsel could understand him.

In order to verify the validity of his diagnoses, Glidden administered standard malingering tests, which are designed to determine if a person is feigning or exaggerating a disability. The tests showed virtually no evidence of malingering.

Ruizs Police Interview

The jury viewed a DVD of Ruizs police interview on the night of October 12, 2006, along with a 37-page transcript of the interview.

The police interview of Ruiz commenced at 9:40 p.m. and lasted for approximately one hour. On the DVD, Ruiz is handcuffed with his hands behind his back throughout the interview. Ruiz is very soft spoken and in many instances his comments are unintelligible. Ruizs head is hanging down; his right leg is in a constant repetitive up and down motion; he is crying; and occasionally buries his head in the arm of the chair upon which he is seated.

The interview reflects that after Ruiz was advised of his Miranda rights, he did not indicate affirmatively that he understood those rights. When asked if he understood right from wrong, Ruiz had trouble articulating examples, but did indicate that if he did something wrong, he would get in trouble. Ruiz tells the officers that he was prescribed medication for anger, but stopped taking it when he ran out of the medication and his mother did not refill the prescription.

Ruiz then tells the officers that on October 12, 2006, Jessica, a neighbor who had been dating Ruiz, told him that their mothers did not want the two talking to each other anymore. Ruiz was mad and started breaking windows in Jessicas house, her car, and numerous objects inside Jessicas house. At this point, Ruiz pauses and asks the officers, What do you want me to say?

Ruiz continues, explaining that he went through Jessicas house breaking things and when he got to the kitchen he picked up a knife. By now Ruiz is crying hard and unable to continue. An officer tells Ruiz to Calm down, okay? Youre all right.

Ruiz continues and tells officers he went outside Jessicas house. Jessica is outside talking to Ruizs mother. His mom tells him he is going out of control. Jessica heads back into her house. Ruizs mother is telling him to calm down and come home with her; she has a cell phone in her hand. Ruizs mom turns to go and he stabs her in the back. She falls to the ground and he drops the knife.

When Ruizs sister L. shows up, apparently to try and help calm Ruiz, Ruiz asks, Wheres my mom? L. starts crying. Jessica tells him his mother is on the ground. Upon hearing this, Ruiz starts hitting himself in the head.

Ruiz tells officers that he uses alcohol and smokes marijuana. He also tells the officers he wants to learn to [d]rive a big truck or work on the cars.

Other Evidence

Among the documents reviewed by Glidden was a report prepared by a deputy. The report included the comment that Ruiz would not be able to represent himself in court, like some of the other inmates.

Deputy Sheriff Hilario Ruiz testified that he had been working for about nine months on the second floor of the jail, where Ruiz was housed. Ruiz was quiet, polite, and followed Deputy Ruizs requests. Ruiz was able to comply with the jail procedures to exchange his towels, sheets, and clothes for clean ones on a regular schedule.

Sergeant Douglas McFarland testified that he worked at the main jail. On March 10, 2008, deputies found contraband in a cell that contained 16 inmates, including Ruiz. The contraband triggered disciplinary action. It was explained to the inmates that they had a right to a hearing. Ruiz chose to have a hearing, like most of the other inmates. At the hearing, Ruiz denied any knowledge of the contraband, like most of the other inmates.

A letter Ruiz wrote to his girlfriend, Jessica, was introduced into evidence by the People. The words were printed; there was no use of cursive. It repeated over and over that Ruiz loved Jessica, and it contained childish symbols for words and drawings of hearts. One sample sentence read, 4 ever & ever for Life U and me Je$$ica - N - Michael Until End Of Time. This theme is repeated throughout the short letter, Im never going to stop loving you youre always In my heart Its always going to be like this 4 ever & ever Jessica - N - MichaelLovers 4 Life.

Competency Verdict

The jury found Ruiz competent to stand trial. On December 23, 2008, Ruiz filed a motion for judgment notwithstanding the verdict. On January 28, 2009, the trial court heard argument and granted the motion. In granting the motion, the trial court noted:

Im not inclined to set aside a jurys decision lightly or unadvisedly and the fact -- but quite frankly when I received the verdict after hearing the evidence, I was surprised. I just couldnt believe that the jury could return a finding of competency based upon the evidence I heard. [][]  

The testimony of both experts in the courts mind is very persuasive. Its clear and uncontradicted expert testimony that the defendant is not competent. The evidence to the contrary is not substantial or credible. And as a result, Im setting aside the jury verdict in this matter. Im entering a judgment of incompetency pursuant to Penal Code section 1368.

DISCUSSION

The People contend the jurys verdict was supported by substantial evidence and the trial court impermissibly reweighed the evidence.

Legal Standard to Establish Competency

Under section 1367 et seq., the standards to be applied in determining whether Ruiz is competent to stand trial are: (1) he must be capable of understanding the nature and purpose of the proceedings against him; (2) he must comprehend his own status and condition in reference to such proceedings; and (3) he must be capable of assisting his attorney in conducting a defense, or be able to conduct his own defense, in a rational manner. (People v. Marks (2003)31 Cal.4th 197, 215 (Marks).)

Standard of Review

In the trial court the burden is on the defendant to establish by a preponderance of the evidence that he or she is incompetent to stand trial. (Marks, supra, 31 Cal.4th at p. 215.) When a motion for judgment notwithstanding the verdict is filed, the burden is then on the moving party to convince the trial court there is no substantial evidence to support the verdict. A trial court may grant the motion only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence in support. (Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68 (Sweatman).)

When reviewing a judgment notwithstanding the verdict, we must determine whether there is any substantial evidence, contradicted or uncontradicted, in support of the jurys conclusion. (Quintal v. Laurel Grove Hospital (1964) 62 Cal.2d 154, 159.) In effect, we apply the same legal standard as the trial court. If substantial evidence in support of the verdict exists, we must reverse the trial courts order granting the motion. (Ibid.)

Evidence is substantial for purposes of this standard of review if it is of ponderable legal significance, reasonable in nature, credible, and of solid value . [Citations.] (Brewer v. Murphy (2008) 161 Cal.App.4th 928, 935-936.)

Evidence of Competency

No evidence of competency was presented, either on direct or cross-examination, or by innuendo or supposition. To the contrary, the evidence produced, including the analysis of the Peoples evidence by the experts, was consistent with the conclusion that Ruiz was not competent to stand trial.

The People did not, and do not, contest the credentials of the experts, the validity of the tests they conducted, or the conclusions they reached. The People did not, and do not, claim that Ruiz was malingering at any time. All the evidence indicates that Ruiz tried to show that he was capable of functioning at a higher level than that which he was capable.

Both Middletons and Gliddens testimony established that Ruiz did not comprehend fully the nature and purpose of the proceedings against him or his own role in those proceedings. It was not until Middletons fourth interview with Ruiz that Ruiz was able to articulate that he was charged with killing his mother. When interviewed by Glidden, Ruiz could not articulate the role of a defendant or witness in a trial and was under the belief that the district attorneys role was to help him. Ruiz could not answer questions about the role of a judge or what it meant to prepare for trial.

Ruiz would not be able to comprehend the courtroom proceedings because of his low level of intellectual functioning, his language problems, and his memory problems. Ruiz had a developmental language disorder, the remedy for which was to be placed in a repetitive environment with a low language requirement. A courtroom environment is the opposite; very verbal and complex.

Ruiz would be incapable of assisting in his defense in a rational manner. Ruiz had severely impaired expressive language skills and below average receptive language skills. Ruizs ability to converse, explain, or impart information was severely impaired. Glidden determined that Ruizs sentence comprehension essentially was at a third grade level; Ruiz understood single words at about a fifth grade level. Ruiz had a basic understanding that an attorney represented him, but could not explain how to interact with his attorney. Ruiz had difficulty with the concepts of guilt and innocence and could not explain or apply his Miranda rights in any meaningful manner. Defense counsel would be unable to explain to Ruiz, in a manner Ruiz could comprehend, what was happening during a trial.

The evidence produced by the People not only did not contradict the conclusions of the experts, it was consistent with them.

Ruizs videotaped statement to officers after the stabbing of his mother shows a young man who frequently was not responsive to the questions or gave one-word answers, if he answered at all. Most of the questions were leading, thus allowing Ruiz to answer with very few words. The court reporter preparing the transcript of the statement entered inaudible for Ruizs reply to questions over 170 times in a 37-page transcript. Beginning with his Miranda rights, Ruiz never affirmatively indicated he understood them. The expert testimony was that Ruiz could not explain or apply those rights in any meaningful manner. Ruizs actions during the statement were entirely consistent with the conclusions of the experts.

The letter from Ruiz to Jessica does not establish that Ruiz could understand complex courtroom proceedings. His letter was no more than a childish, and very repetitive, expression of love for Jessica. It does not demonstrate an understanding of, or ability to express, complex language and proceedings. The letter, with its lack of cursive and use of symbols and drawings instead of words, gives the impression it was written by a child, an impression that is consistent with Ruizs developmental state.

The testimony of the deputies who observed Ruiz while he was in jail awaiting trial also substantiates the expert's conclusions. Ruiz was capable of handling situations that called for a low level of language or verbal ability and were repetitive, such as the exchange of linens and clothing on a regular schedule.

The incident with the contraband and the hearing establishes only that Ruiz was capable of mimicking what the other inmates did -- request a hearing and deny knowledge. There was no evidence of what was said by whom at the hearing, so we cannot determine how Ruiz interacted or responded. This, too, is consistent with the experts conclusions. Ruiz tried to put on a good front and tried hard to appear to function at a level higher than that of which he was capable.

We conclude there was no substantial evidence that Ruiz was competent to stand trial.

Other Contentions

The People also contend that the trial court impermissibly reweighed the evidence. We disagree. In evaluating a motion for judgment notwithstanding the verdict, a trial court is required to assess the evidence and determine whether there is substantial, credible evidence supporting the verdict. (Sweatman, supra, 25 Cal.4th at p. 68.) This the trial court did, concluding the evidence of competency to stand trial was not credible or substantial. This evaluation of the evidence is not an impermissible reweighing.

We also reject the Peoples contention that the trial courts grant of judgment notwithstanding the verdict renders a jury trial meaningless. The trial courts duty in assessing a motion for judgment notwithstanding a verdict is to uphold that verdict if substantial evidence supports it, and to grant judgment notwithstanding the verdict if the evidence in support is insubstantial. The trial court performed this function and reached a conclusion, with which the People did not agree. Indeed, if the trial court did what the People here suggest and merely agreed with the jury, no matter what the evidence showed, the system of justice would be rendered meaningless.

DISPOSITION

The judgment is affirmed.

_____________________

CORNELL, J.

WE CONCUR:

_____________________

LEVY, Acting P.J.

_____________________

KANE, J.

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

^[2]Miranda v. Arizona(1966) 384 U.S. 436.