P. v. Balderas





















Filed 6/25/12 P. v. Balderas CA4/3













>NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
THREE




>

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL DAVID BALDERAS, Defendant and Appellant.

G044856 (Super. Ct. No. 08ZF0018) O P I N I O N

Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, William R. Froeberg, Judge. Affirmed.

Robert E. Boyce, 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, Barry Carlton and Scott C. Taylor, Deputy
Attorneys General, for Plaintiff and Respondent.

Michael
David Balderas appeals from his convictions for href="http://www.mcmillanlaw.com/">second degree murder and assault on a
child with force likely to produce great bodily injury resulting in death. Balderas contends the trial court erred by
failing to question his competence to stand trial and hold a competency hearing. We find the evidence insufficient to show
Balderas could not understand the proceedings or assist his counsel and,
accordingly, we affirm the judgment.

FACTS & PROCEDURE

In view of the limited
issue on appeal, we need not go into great detail about the facts surrounding
the horrific death of two-and-one-half-year-old Jo Jade. Jo Jade began living with her uncle,
Balderas, and his girlfriend, Shannon James, in October 2005 when her
mother was incarcerated. James worked;
Balderas cared for Jo Jade, who was potty trained but still had
accidents. Although James initially
helped with Jo Jade’s care, by mid February 2006, Balderas took over
caring for her exclusively, and insisted he would potty train Jo Jade
because James was being too nice about it.


On March 30, 2006, James went to work in the early
morning. In the late morning, she got a
telephone call from Balderas who was upset because Jo Jade had defecated
in her pants and spit at him. In the
early afternoon, Balderas called James again because Jo Jade was refusing
to take a nap. At around 4:00 p.m., Balderas called James and said
he had really “‘fucked up’” and she had to come home immediately.

When James got home,
Balderas met her at the door holding Jo Jade’s pale and motionless
body. When James tried to call 911,
Balderas said it would be quicker to drive to the hospital. James drove, while Balderas carried
Jo Jade and attempted to resuscitate her.
James called 911 while driving; Balderas told her, “‘Hang up the
phone. I’m going to jail for this.’”

Jo Jade was
pronounced dead at the hospital. Her
body was severely bruised and battered.
She had extensive bruises and abrasions on her torso, buttocks, and
legs. She also had contusions on her href="http://www.sandiegohealthdirectory.com/">face, forehead, forearms, and
hands. Her anus and vagina were
swollen, stretched and torn, consistent with foreign objects having been forced
inside her. The cause of death was blunt
force trauma resulting in bleeding to death internally. A belt and an adult pair of jeans, both with
Jo Jade’s blood on them, were found in her bedroom. Trace amounts of Jo Jade’s DNA was found
on Balderas’s penis, but the cells were not from her mouth, vagina, or anus.

Balderas admitted to
police that he spanked Jo Jade several times on the day she died because
she soiled her pants and spit on him. He
put her to bed after the last round of spanking, and when he went to check on
her approximately half an hour later, she was not breathing. He tried performing CPR on the child, and
called James telling her to come home because “something’s fucked up.”

An indictment charged
Balderas with murder with a torture
special circumstance (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(18))href="#_ftn1" name="_ftnref1" title="">[1]
(count 1), and assault on a child with force likely to produce great bodily
injury resulting in death (§ 273ab subd. (a)) (count 2). The prosecution eventually dismissed the
special circumstance. At his January
2011 trial, the jury found Balderas guilty of href="http://www.fearnotlaw.com/">second degree murder on count 1, and
guilty as charged on count 2. The trial
court sentenced Balderas to 25 years to life on count 2, and imposed and stayed
a sentence of 15 years to life on count 1.

DISCUSSION

Balderas contends the
trial court should have raised doubts about his competency to stand trial and
ordered a competency evaluation. We find no error.

“A person cannot be
tried or adjudged to punishment while that person is mentally incompetent. A defendant is mentally
incompetent . . . 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).) A defendant’s trial while incompetent
violates state law and federal due process
guarantees. (Pate v. Robinson (1966) 383 U.S. 375, 385; People v. Pennington (1967) 66 Cal.2d 508, 516-517.)

At no time during the
trial court proceedings did defense counsel request a competency hearing. Nonetheless, Balderas refers to occurrences
during the proceedings that he argues should have raised a question in the
trial judge’s mind as to whether he was competent to stand trial.

First, at the beginning
of trial there was a discussion about the admissibility of evidence that
Balderas had attempted suicide while awaiting trial. Defense counsel indicated she intended to
introduce evidence of the suicide attempt because it went to malice, and “as
the court is aware, . . . Balderas has suffered permanent
severe permanent [sic] brain
damage.” Defense counsel reminded the
court that in earlier court proceedings, Balderas sometimes yawned and giggled
at inappropriate times, and had grown a “huge dreadlock,” which jail personnel
made him shave off. Defense counsel
explained evidence of the suicide attempt, and Balderas’s resulting brain
damage, would help the jury understand Balderas’s demeanor in court, i.e.,
“there’s an explanation why he’s behaving that way as opposed to him being
calloused and uncaring and not remorseful . . . .” The trial court suggested it was more
concerned the jury might use the suicide attempt against Balderas as evidence
of consciousness of guilt. The court
agreed with the prosecutor the evidence would be better handled by way of a
stipulation to the effect that due to a medical condition, developed
post-crime, Balderas had certain behaviors that were not to be considered by
the jury in determining guilt.href="#_ftn2"
name="_ftnref2" title="">[2]

Next, after the
prosecution rested its case, defense counsel indicated she wanted to call
Balderas’s sister (Jo Jade’s mother), to testify about the excessive
discipline used on Balderas by their own mother when they were children to show
Balderas’s lack of malice. When the
prosecutor objected, and suggested Balderas could take the stand to testify
about his state of mind, defense counsel replied, “[a]s far as my client
testifying, the court is very well aware he suffered irreversible brain
damage.” The trial court replied, “I
understand defense argument that [Balderas] can’t testify . . . .”


> Finally,
during the prosecutor’s closing arguments, Balderas “raised his right arm
beside his head and extended his middle finger.” The court later admonished Balderas outside
the presence of the jury, “that’s not going to help you. I’m assuming you won’t be doing that again.”

A defendant is presumed
mentally competent unless proved otherwise by a preponderance of the
evidence. (§ 1369, subd. (f).) But that presumption may be rebutted by
evidence “including the defendant’s demeanor, irrational behavior, and prior
mental evaluations.” (>People v. Rogers (2006) 39 Cal.4th 826,
847 (Rogers).) “If a defendant presents substantial evidence
of his lack of competence and is unable to assist counsel in the conduct of a
defense in a rational manner during the legal proceedings, the court must stop
the proceedings and order a hearing on the competence issue. [Citations.]
In this context, substantial evidence means evidence that raises a
reasonable doubt about the defendant’s ability to stand trial. [Citation.]
. . . The court’s decision whether to grant a competency hearing is
reviewed under an abuse of discretion standard.
[Citations.]” (>People v. Ramos (2004) 34 Cal.4th 494,
507 (Ramos).)

“A trial court’s
decision whether or not to hold a competence hearing is entitled to deference,
because the court has the opportunity to observe the defendant during
trial.” (Rogers, supra, 39 Cal.4th at p. 847.) An appellate court is generally “‘“in no
position to appraise a defendant’s conduct in the trial court as indicating
insanity, a calculated attempt to feign insanity and delay the proceedings, or
sheer temper.”’ [Citations.]” (People
v. Marshall (1997) 15 Cal.4th 1, 33.)
Similarly, “[a]lthough trial counsel’s failure to seek a competency
hearing is not determinative [citation], it is significant because trial
counsel interacts with the defendant on a daily basis and is in the best
position to evaluate whether the defendant is able to participate meaningfully
in the proceedings [citation].” (>Rogers, supra, 39 Cal.4th at p. 848.)

Here,
we have no grounds to second-guess the trial court. “[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.” (>Ramos, supra, 34 Cal.4th at p. 508.)
The record indicates Balderas suffered some sort of href="http://www.sandiegohealthdirectory.com/">brain injury as a result of
his botched suicide attempt, and his occasional poor demeanor in court might
have been due to that brain injury, or due to medication he took as a
result. But that evidence is not
tantamount to substantial evidence Balderas was incompetent to stand
trial—i.e., that he was “‘incapable of understanding the purpose or nature of the
criminal proceedings being taken against him or is incapable of assisting in
his defense or cooperating with counsel . . . .’ [Citation.]”
(People v. Stankewitz (1982)
32 Cal.3d 80, 92.)

Defense counsel never
disputed Balderas’s competence to stand trial.
(See Rogers, >supra, 39 Cal.4th at p. 848
[defense counsel “is in the best position to evaluate whether the defendant is
able to participate meaningfully in the proceedings”].) There was no evidence of a mental evaluation
showing Balderas was incapable of understanding the nature of the
proceedings. We have reviewed the entire
reporter’s transcript of the trial that took place over eight days and found no
indication Balderas behaved other than impeccably throughout the trial—there
were no reports of any outbursts, giggling, yawning, or any other questionable
conduct by Balderas—until during the prosecutor’s closing argument when he
slyly tried to “flip off” the prosecutor.
The trial court admonished Balderas, and there is nothing indicating he
engaged in any similar conduct thereafter.


Balderas’s reliance on
this court’s opinion in People v. Murdoch
(2011) 194 Cal.App.4th 230, is misplaced.
In Murdoch, after defendant’s
arraignment competency proceedings were instituted and the trial court appointed
two experts to examine him. (>Id. at p. 233.) Both experts concluded defendant suffered
from serious or severe mental illness.
He was competent so long as he continued taking prescription medication,
but he had already stopped taking his medication. (Ibid.) Shortly before the trial began, defendant
informed the court his defense was the victim was not human. (Ibid.) The court found defendant was competent and
reinstituted the criminal proceedings.
The court subsequently granted defendant’s request to represent
himself. At trial, prior to opening
statements, defendant again advised the court his defense was going to be that
the witnesses were not human. (>Id. at p. 234.) He intended to introduce pages from the
Bible, question the witnesses if they “‘[were] from Sodom and Gomorra[,]’” and
question them about their shoulder blades, because “‘[s]houlder blades are
symbolic of angelic beings. These two
that are going to be taking the stand do not have shoulder blades. Okay?’ . . . ‘All I need
to do, okay, if my assertion of their anatomy is correct, they have a bone that
runs from here to here. They cannot
shrug their shoulders. That’s all I’m
asking.’” (Ibid.) At trial, defendant
cross-examined only one witness and asked a single question relating to his
theory that the witness was not human—whether he could shrug his
shoulders. (Id. at p. 235.) This court
concluded the expert evidence coupled with defendant’s behavior should have
prompted the trial court to raise a doubt about defendant’s competence during
trial. (Id. at p. 238.)

In contrast, here there
was no psychological or psychiatric information before the court indicating
Balderas was not competent, i.e., did not understand the nature of the
proceedings or was unable to assist his counsel. There was no display of completely delusional
or irrational thinking. The record lacks
substantial evidence demonstrating Balderas was incompetent to stand trial and,
thus, the trial court did not err in failing to declare a doubt as to his
competency or institute competency proceedings.
(People v. Lewis (2008) 43
Cal.4th 415, 526.)

DISPOSITION

The judgment is
affirmed.





___________________________

O’LEARY,
P. J.



WE CONCUR:





___________________________

RYLAARSDAM, J.





___________________________

BEDSWORTH, J.