Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County No. 07CEJ600080-3. Jon Nick Kapetan and Ralph Nunez, Judges.
Peggy A. Headley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, David A. Rhodes and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Levy, Acting P.J.
INTRODUCTION AND GENERAL FACTS
A juvenile wardship petition was filed in October 2007 alleging that appellant R.H. committed seven criminal offenses, including one felony count of uttering criminal threats (count 1) and one felony count of attempted inducement of false testimony (count 3). Appellant entered into a negotiated plea agreement. In exchange for his admission of counts 1 and 3, these offenses were reduced to misdemeanors and the remaining counts in the petition were dismissed. The parties stipulated that the police reports provided a factual basis for the plea. Appellant was judged to be a ward, placed under the probation officer’s supervision and detained in the “Juvenile Justice Campus” (Juvenile Hall) pending suitable placement. The court prohibited appellant from associating with numerous people, including H.L., as a condition of probation (the no contact condition).
Unless otherwise specified all dates refer to 2007.
Appellant argues the juvenile court had a sua sponte obligation to stay the proceedings and hold a competency hearing. Alternatively, he argues it was obliged to make an express competency determination. Also, appellant argues the plea is not supported by a factual basis because the record does not contain a copy of the police reports. Finally, appellant argues H.L. must be stricken from the no contact condition. None of these arguments is persuasive; we will affirm.
DISCUSSION
I. Neither a competency hearing nor an express competency finding was required.
A. Facts
Appellant had eight police contacts resulting in discipline prior to the filing of the current petition; four of them occurred in 2007.
On June 1, appellant was evaluated by Mr. Freitas from Fresno County Mental Health after appellant’s father stated he believed appellant was a danger to himself. Mr. Freitas stated appellant “was manipulating for anything he thought he could obtain by playing the ‘what if I’ game. Mr. Freitas stated the minor did not meet the criteria for DTS, DTO or GD.”
On June 11, appellant attempted to commit suicide by tying a sock around his neck.
On June 12, the juvenile court suspended proceedings in connection with a May 25 probation violation allegation and ordered a competency evaluation after appellant threatened to commit suicide and had to be removed from court.
On July 1, the juvenile court “found [appellant] competent to stand trial based on the findings of Dr. Geiger and Dr. Hendrickson. [Appellant] was taking Risperdal & Concerta. [Appellant’s] Diagnosis was [attention deficit hyperactivity disorder (ADHD)] and Intermittent Explosive Disorder [(IED)].”
A trial confirmation hearing was conducted in the current matter on November 6. In relevant part, defense counsel stated “… I do have questions about my Minor’s mental health status while he’s being detained. Been missing appointments with the psychiatrist. Not known if he’s getting his medication.” The court asked if appellant’s parents brought the medication to Juvenile Hall. Appellant’s father answered that he took appellant’s medication to Juvenile Hall but personnel did not give appellant his medication for two weeks. The probation officer stated that the issue has been resolved and currently appellant is receiving his medication. After confirming a trial date, defense counsel said, “Oh, Your Honor, in terms of my client’s mental health status, is there a -- what is it a 241.1? I can’t remember that code section.” The court replied, “No, that’s for -- see if he has any dependency issues. [¶] You want them to evaluate him?” Defense counsel replied, “Yeah.” The probation office said, “You want a psych eval?” The court said, “Not a psych eval. That’s three weeks.” The probation officer said, “Well, it doesn’t have --” The court said, “Ask Mental Health staff to check.” The probation officer said, “Okay.”
At the close of the adjudication hearing on November 19, the probation officer said, “Your Honor, it indicates on the last minute order that the minor was supposed to be evaluated by Mental Health, and it doesn’t show that was completed. Can we please have that on the minute order again and I’ll ensure that the correct people are notified in the Hall.” The court replied, “We’ll order, for a second time, Mental Health evaluate the minor.”
Appellant met with mental health staff on November 11 and 20.
On November 27, defense counsel stated appellant wanted to accept the plea bargain offered by the People. The court took appellant’s waivers and accepted his pleas. Appellant’s mental health was not discussed during this proceeding.
The probation report was filed on December 11. The section of the probation report titled “Psychological History” (boldface omitted) stated that appellant met with mental health staff as ordered by the court on November 11 and 20 and he has an appointment with “‘State Mental Health’” on December 12. Also, appellant was taking anger management classes. Appellant’s father told the probation officer that he gave all of the information concerning appellant’s mental health to defense counsel. The probation officer contacted defense counsel, who confirmed appellant’s diagnosis of ADHD, IED and Mood Disorder (MD), along with his medication. Appellant told the probation officer “that he was currently taking Risperdal for threatening suicide while in Juvenile Hall.” The probation officer wrote that appellant “was taking his medication and was stable.”
The section of the probation report titled “ANALYSIS AND PLAN” (boldface and underscore omitted) stated:
“[Appellant] has been diagnosed with ADHD, [IED] and [MD]….
“[Appellant] is appearing before the Court for his fourth disposition in less than nine months. It is apparent to your officer that the minor has significant mental health issues which are drastically affecting his ability to comply with his terms and conditions of probation. Your officer is not convinced that the minor’s parents, albeit willing, are able to adequately care for the minor and all of his needs. Based upon the above, it is your officer’s opinion that the minor is a suitable candidate for Placement Services, possibly the SB 163 Wrap Around Program. Therefore, the minor’s case was screened and accepted for Placement Services with Deputy Probation Officer Gerald Sandoval.”
The dispositional hearing was held on December 11. Defense counsel submitted two letters to the court. The first letter was “a scheduled appointment for my client with a mental health expert set for tomorrow.” The second letter stated that mental health services is assigning appellant “to a new professional.” The court stated that it read these letters. Defense counsel argued against placement in a group home. In relevant part, defense counsel argued, “His parents have been making steps to address his mental health status. They are concerned about him. With the help of Probation, I think that they can continue providing transportation and help necessary to get him to these appointments, keep him on his medication.” In relevant part, the court ordered appellant to “[a]ttend psychological, substance abuse assessment, counseling or treatment as ordered by the probation officer,” as a condition of probation. Also, it ordered appellant’s case “to be screened for the SB 163 wraparound program.”
B. The juvenile court did not have a sua sponte duty to stay the proceedings and hold a competency hearing or to make an express competency determination.
Appellant asserts that despite the fact the juvenile court twice ordered evaluations of appellant’s mental health and defense counsel referenced appellant’s “mental health problems” during the dispositional proceeding, “nothing was done.” He contends that substantial evidence of a doubt about his competency existed and, therefore, the court had a sua sponte duty to stay the proceedings and order a competency hearing. Alternatively, the court was obliged to make an express competency finding. This argument is factually inaccurate and legally unsound.
At the outset, we reject appellant’s assertion that the juvenile court ignored issues surrounding his mental health. The mental health evaluation ordered by the court occurred on November 11 and 20. Also, appellant had an appointment with state mental health set for December 12. The probation officer confirmed from defense counsel appellant’s diagnoses and his medication. There is no evidence contradicting the statement in the probation report that appellant “was taking his medication and was stable.” The juvenile court’s disposition was sensitive to appellant’s mental health needs. It ordered appellant to attend psychological counseling or treatment as a condition of probation and it ordered his case to be screened for the “SB 163 wraparound program.”
We turn to appellant’s contention that the juvenile court had a sua sponte duty to stay the proceedings and hold a competency hearing. This contention fails because appellant mistakenly equates “competency” with “mental health” and incorrectly assumes that competency cannot exist when a defendant has mental health problems. The juvenile court is required to stay the proceedings and conduct a competency hearing if there is reason to doubt that the minor is capable of understanding the proceedings or of cooperating with his or her attorney. (Timothy J. v. Superior Court (2007) 150 Cal.App.4th 847, 851.) A minor may have diagnosed mental problems but if he has the present ability to understand the nature and purpose of the proceedings and can rationally participate in his defense, then he is competent.
In this case, there was no reason for the juvenile court to doubt appellant’s competency. The probation officer concluded that there existed doubts about appellant’s ability to comply with the terms of probation because of his mental health problems. An inability to comply with the terms of probation is not equivalent to an inability to understand the legal proceedings or rationally participate in one’s defense. Appellant’s diagnoses indicate that he is impulsive and has difficulty controlling his moods and behavior. Indeed, appellant’s conduct in Juvenile Hall during the months of October, November and December included numerous incidents of impulsive and disruptive behavior. However, there was no evidence indicating that appellant had any breaks with reality, suffered any hallucinations or was otherwise so mentally impaired that he might not be able to understand the criminal proceedings or participate in his defense. Appellant was not schizophrenic, psychotic or bipolar. There is no evidence in the record contradicting the conclusion in the probation report that currently appellant was taking his medication and was stable. Given appellant’s diagnoses, stable does not necessarily mean that his conduct was always appropriate. Appellant did not make any inappropriate outbursts during court proceedings. Neither defense counsel, nor the probation officer, nor appellant’s parents, nor the prosecutor, nor appellant himself suggested at any time that appellant’s ability to understand the proceedings or rationally cooperate in his defense was doubtful.
Moreover, appellant’s competency was formally assessed in June; the juvenile court found on July 1 that appellant was competent based on evaluations conducted by two doctors. There is no evidence in the record indicating that appellant’s mental state currently is worse than it was on July 1.
Accordingly, we find the record does not contain evidence that raised a reasonable doubt whether appellant could understand the proceedings or rationally cooperate in his defense. Therefore, the juvenile court did not have a sua sponte obligation to suspend the proceedings and order a competency hearing.
Appellant’s alternative contention that the court had a sua sponte duty to make an express competency determination is equally unpersuasive. Appellant acknowledges that his position is not supported by any existing legal precedent. California Rules of Court, rule 5.778(c) requires the juvenile court to find and state on the record that the minor understands the nature of the allegations and the direct consequences of the admission. In this case, the juvenile court satisfied this requirement. It explained the charges and consequences of admission to appellant. Thereafter, it found that appellant is “aware of the charges against him and the consequences of the admission.” Nothing more was required.
II. The record contains an adequate factual basis supporting the plea.
Prior to accepting appellant’s plea, the juvenile court asked the following, “Counsel stipulate that were I to read the police reports I could find a factual basis upon which to accept [appellant’s] admission?” The prosecutor and defense counsel both agreed to this stipulation. Thereafter, the court stated, “I’ll accept the stipulations entered on all parties’ behalf.” The probation report contained a summary of the facts underlying counts 1 and 3 that was derived from Fresno Police Department report number 07-90097 and a summary of the facts underlying the other counts that was derived from Fresno Police Department report number 07-76504.
Relying on People v. Willard (2007) 154 Cal.App.4th 1329 (Willard), appellant argues the factual basis requirement was not met and reversal is required because the juvenile court record does not include a copy of the police reports. We are not persuaded.
In People v. Holmes (2004) 32 Cal.4th 432, our Supreme Court detailed the procedure to be followed pursuant to Penal Code section 1192.5 when a negotiated plea is taken. The trial court may develop the factual basis for the plea through its own examination of the defendant. Alternatively, it may ask counsel to stipulate to a particular document providing an adequate factual basis, such as a police report, probation report or written plea agreement. Under either approach, a bare statement that a factual basis exists is inadequate. (Id. at pp. 440-441.)
Willard, supra, 154 Cal.App.4th 1329 held that a bare stipulation without reference to a specific document in the record is inadequate. Willard also determined that if the parties do not reference a factual source in their stipulation, the resulting error is not harmless when the record does not contain any documents providing a factual support for the charges. (Id. at pp. 1334-1335.)
In this case, counsel stipulated that a factual basis for the plea is contained in the police reports. Although the record does not contain a copy of police reports, the probation report contains a factual summary of the offenses derived from Fresno Police Department report numbers 07-76504 and 07-76504. The probation report contains “a concrete set of facts in the record, which can be reviewed by the appellate court to determine” the adequacy of the factual basis supporting the plea. (Willard, supra, 154 Cal.App.4th at p. 1335.) Therefore, even if we were to conclude the juvenile court erred by failing to include a copy of the police reports in the record, the omission is harmless
Appellant points out that the prosecutor offered the plea agreement and amended the petition to reduce counts 1 and 3 to misdemeanors because he could not prove actual fear on the part of the victims. However, appellant did not develop this observation into a coherent legal argument accompanied by citation to authority. Therefore, we summarily dismiss the point as undeveloped. (People v. Williams (1997) 16 Cal.4th 153, 206.)
III. Appellate review of H.L.’s inclusion in the no contact condition was forfeited.
The probation report recommended the terms of probation include a prohibition against association with several people, including H.L., A.L. and A.L.’s mother. During the dispositional hearing, appellant’s father stated H.L. and A.L. “don’t live nowhere near there. They come to [the residence of A.L.’s mother].” The court replied, “The purpose for the stay away order, sir, is to make sure that your son doesn’t do anything in regard to those people.” Appellant’s father replied, “I understand.” The court continued, “Whether they live there or anywhere else.” Appellant’s father responded, “I understand that.” Defense counsel did not participate in this colloquy or object to the no contact condition. The court imposed the no contact condition.
Appellant contends H.L. is not a victim and therefore must be stricken from the no contact condition. Respondent argues this challenge was forfeited because defense counsel did not object on this ground below. Respondent is correct.
In In re Sheena K. (2007) 40 Cal.4th 875, our Supreme Court held that constitutional challenges to a probation condition are not waived by failure to object in the juvenile court if the issue presents a “pure question of law, easily remediable on appeal by modification of the condition.” (Id. at p. 888.) However, traditional objection and waiver principles apply when the issue does not present a pure question of law that can be resolved without deference to the particular sentencing record developed in the juvenile court. (Id. at p. 889.)
In this case, appellant’s challenge to inclusion of H.L. in the no contact condition presents a factual question that cannot be resolved without review of the juvenile court record. This issue does not involve a pure question of law. Therefore, traditional objection and waiver principles apply. Since defense counsel did not object in the juvenile court to H.L.’s inclusion in the no contact condition, the point was not preserved for appellate review. (In re Sheena K., supra, 40 Cal.4th at p. 889.)
Appellant also argues that defense counsel was ineffective because he failed to object to H.L.’s inclusion in the no contact condition. The claim fails because it appears from the remarks made by appellant’s father during the dispositional hearing that H.L. is closely connected to the victims. Defense counsel’s failure to object to H.L.’s inclusion in the no contact condition may have been a conscious and reasonable tactical decision. Therefore, this claim is appropriately decided in a habeas corpus proceeding and not on direct appeal. (People v. Mendoza Tello (1997)15 Cal.4th 264, 266.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Cornell, J., Kane, J.