Opinion
A156395
08-19-2020
THE PEOPLE, Plaintiff and Respondent, v. MARIA VIOLETA CABRERA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. Nos. 4-186161-6 & 4-194256-4)
After defendant Maria Cabrera was charged with various offenses based on threatening phone calls made to the Pittsburg Police Department, her attorney expressed doubt as to her competence to stand trial. The trial court suspended criminal proceedings and had Cabrera examined by a psychologist, who opined that she was not competent. After her counsel submitted the issue of Cabrera's competency based on the report, the trial court found Cabrera incompetent and ordered her committed to the Department of State Hospitals. Cabrera argues that the trial court erred in failing to appoint a second expert to examine her pursuant to Penal Code section 1369, subdivision (a)(1). We affirm.
Further undesignated statutory references are to the Penal Code.
BACKGROUND
On January 12, 2016, the Contra Costa County District Attorney filed a felony complaint charging Cabrera with felony resisting an executive officer (§ 69) (count 1); felony stalking (§ 646.9, subd. (a)) (count 2); and four counts of misdemeanor making annoying phone calls (§ 653m, subd. (b)) (counts 3-6).
At the preliminary hearing on January 26, defense counsel expressed doubt as to Cabrera's competence to stand trial. The trial court suspended criminal proceedings pursuant to section 1368, and set a hearing for February 1 to appoint a psychiatrist. At that hearing, a different judge appointed Dr. J. Kyle Van Gaasbeek to conduct an evaluation. After meeting with Cabrera in detention, Dr. Van Gaasbeek authored a report recommending that the trial court find her competent to stand trial.
On May 4, Cabrera waived her right to a jury and a two-day court trial was held on the issue of her competency, at which Dr. Van Gaasbeek, Omri Berger, another expert hired by the defense, Cabrera's father, and Cabrera all testified. At the conclusion of the trial, the court found Cabrera competent to stand trial and reinstated criminal proceedings.
Shortly thereafter, the parties entered into a plea agreement whereby Cabrera pleaded no contest to one felony count of threatening a public officer (§ 71) and the other counts of the complaint were dismissed, and was sentenced to 180 days in county jail and three years formal probation.
In August 2018, the probation officer petitioned to revoke Cabrera's probation, alleging that since January 2018, she had made over 500 threatening calls to the Pittsburg Police Department. In September, a felony complaint was filed alleging one count of felony stalking (§ 646.9, subd. (a)) and one count of misdemeanor making annoying telephone calls (§ 653m, subd. (a)).
At an in-camera hearing on September 12 before the Honorable Mary Ann O'Malley, defense counsel again expressed doubt as to Cabrera's competence. During the hearing, Cabrera asked to address the court, insisting that she was competent and noting that she had on previous occasions been found competent, including by Dr. Van Gaasbeek. At the conclusion of the hearing, Judge O'Malley suspended the criminal proceedings and set a hearing for September 17 to select a doctor to perform an evaluation.
The transcript of this hearing was filed under seal. (See Cal. Rules of Court, rule 8.46.)
The hearing on September 17 took place before a different judge, the Honorable Lewis A. Davis. It began as follows:
"MS. LYDDAN [prosecutor]: Calling from the add-on calendar at lines 1 and 2. Maria Cabrera. Ms. Cabrera appears present in custody before the Court with her counsel, Ms. Regular.
"This matter's on for appointment of doctors.
"THE COURT: Good morning, Ms. Cabrera.
"Do we need to appoint one or two?
"MS. REGULAR [defense counsel]: One.
"THE COURT: Do you have a preference, Ms. Regular?"
Counsel for the parties went on to agree to appoint Dr. Benjamin Levin. At the conclusion of the hearing, Cabrera again asked to address the court. She began: "I realize that I am—there is a doubt to my competency. So the criminal proceedings have been suspended at this time. And I agree to meet with Dr. Levin. That is not a problem." She then repeatedly asked to be released on her own recognizance, a request that Judge Davis denied.
Dr. Levin subsequently met with Cabrera and prepared an eight-page report concluding that she was not competent to stand trial.
The competency hearing took place before Judge Davis on November 5, at which the following colloquy took place:
"THE COURT: I have two pieces—I have a report from Dr. Lavine [sic] dated October 26th. Do both parties have that report? Is that why we are here?
"MS. REGULAR [defense counsel]: Yes.
"MS. LYDDAN [prosecutor]: Yes, your Honor.
"THE COURT: Do you wish to proceed?
"MS. REGULAR: I'm submitting.
"MS. LYDDAN: Submitted, your Honor.
"THE DEFENDANT: I object.
"THE COURT: Parties stipulate to the Court's receipt of the report of the evidence in support of the findings?
"MS. REGULAR: I do. I do need to let the Court know that Ms. Cabrera is objecting and I have informed her that it is still my intention to submit on the report. I will file a notice of appeal on her behalf.
"THE COURT: All right. Based on Dr. Lavine's [sic] report and stipulation of the parties the Court finds by a preponderance of the evidence, Ms. Cabrera, that you are not able to presently understand the nature and purpose of the proceedings taken against you and you are not able to assist and cooperate with counsel in presenting a defense."
Judge Davis later committed Cabrera to the custody of the Department of State Hospitals for a maximum term of two years for treatment under section 1370.
Cabrera appeals.
DISCUSSION
Cabrera argues that the trial court should have appointed a second expert to evaluate her competency pursuant to section 1369, subdivision (a)(1), that the failure to do so deprived her of due process, and that to the extent her trial counsel failed to make this request, she provided ineffective assistance.
Section 1369, subdivision (a)(1) provides in relevant part: "The court shall appoint a psychiatrist or licensed psychologist, and any other expert the court may deem appropriate, to examine the defendant. If the defendant or the defendant's counsel informs the court that the defendant is not seeking a finding of mental incompetence, the court shall appoint two psychiatrists, licensed psychologists, or a combination thereof." After the expert or experts examine the defendant, the statute provides for a trial at which counsel for the defense and the prosecution have the opportunity to "offer evidence," "rebutting testimony," and "final argument." (Id., subds. (a)-(e).)
In People v. Lawley (2002) 27 Cal.4th 102, our Supreme Court held that the defendant did not "inform[] the court" that he was not seeking a finding of mental incompetence under section 1369 "by virtue of his insistence on a court trial, a new lawyer, or the right to proceed in propria persona." (Id. at p. 133.) And similarly in People v. D'Arcy (2010) 48 Cal.4th 257, the Supreme Court relied on Lawley to reject the argument that "the court should have inferred [the defendant] did not want to be declared incompetent because that finding would have 'defeat[ed] his effort to regain sole control of his case' " in order to present his defense that the fire at issue had been started accidentally. (Id. at p. 281.)
In this case, Cabrera failed to "inform[] the court" that she was not seeking a finding of incompetence. As noted, the September 17 hearing at which the trial court appointed Dr. Levin began with the prosecutor explaining that the "matter's on for appointment of doctors," the court asking defense counsel "Do we need to appoint one or two?," and defense counsel responding "One." This question was plainly intended by the trial court to determine whether Cabrera was seeking a finding of mental incompetence, and thus whether one or two doctors were required to be appointed under section 1369, subdivision (a)(1)—as it was required to do under the Rules of Court. (See Cal. Rules of Court, rule 4.130(d)(1) ["On initiation of mental competency proceedings, the court must inquire whether the defendant, or defendant's counsel, seeks a finding of mental incompetence"].) Defense counsel told the court only one doctor was required—and thus by implication that Cabrera was not seeking a finding of incompetence—and therefore only one doctor, Dr. Levin, was appointed. Cabrera did not object to the appointment of a single expert at this time, or otherwise express that she believed she was competent, at any other time during this hearing. This is true even though she directed extensive comments to the court at the end of the hearing—against the advice of her attorney—seeking to be released on her own recognizance.
Cabrera argues that she "inform[ed] the court" that she was "not seeking a finding of mental incompetence" when she said "I object" after her counsel submitted the issue of her competence based on Dr. Levin's report. But this objection came after only a single expert had been appointed and had examined Cabrera, prepared a report, and defense counsel indicated she was ready to submit based on the findings. Cabrera's briefs cite two cases in support of her argument, but neither supports her position.
In People v. Robinson (2007) 151 Cal.App.4th 606, defense counsel expressed doubt as to defendant's competence, proceedings were initiated under section 1368, and the parties stipulated to examination by one expert, who recommended finding the defendant competent. (Id. at pp. 610-611.) After the trial court again expressed doubt as to defendant's competence, it appointed a different expert, Dr. Carlson, to examine him. Dr. Carlson's report found the defendant competent. At the second competency hearing, defendant, who by then was representing himself, "agreed with the report's conclusions [and] submitted the matter." (Id. at p. 611.) The Court of Appeal rejected the argument that the trial court erred in failing to appoint a second expert based on this statement, because "[a]lthough defendant stated he agreed with Dr. Carlson's report, when the court appointed Dr. Carlson defendant did not inform the court he was not seeking a finding of incompetence." (Id. at p. 618.) And so too here—although Cabrera's objection suggested that she disagreed with Dr. Levin's conclusion that she was competent to stand trial, she did not offer any objection or so inform the court at the hearing where Dr. Levin was appointed.
Cabrera also relies on People v. Harris (1993) 14 Cal.App.4th 984 (Harris). There, the defendant was so disruptive that the trial court had him repeatedly removed from the courtroom, including after attempting to explain his rights under section 1368. (Id. at pp. 988-989.) In the defendant's absence, the trial court appointed an expert to evaluate him, who later opined that the defendant was incompetent after the defendant refused to meet with him. (Id. at p. 989.) At the competency hearing before a different judge, defense counsel waived defendant's presence and submitted on the report, and the court found defendant incompetent. (Id. at p. 989.) Defendant appealed, and while that appeal was pending, he was found competent to stand trial. (Id. at p. 990.) Nonetheless, because it was of "sufficient public importance," the court considered his argument that the trial court erred in failing to appoint a second expert:
"[Section 1369, subdivision (a)(1)] does not expressly address the circumstance where a defendant personally claims he is competent, yet his counsel seeks a finding of incompetence, and we have found no decision applying it in that context. However, the fact that the statute provides that two experts must be appointed when 'the defendant or defendant's counsel' states that defendant is not seeking a finding of incompetence suggests that this type of situation is encompassed by the statute. [Citation.] The appointment of two experts in such circumstances provides a minimum protection for the defendant against being incorrectly found incompetent to stand trial.
"The court, however, is not required to appoint two experts unless defendant or defense counsel informs the court that the defendant is not seeking a finding of mental incompetence. Whether the trial court here was so informed is a close question in light of appellant's refusal even to be arraigned once the court raised the issue of competence. In light of the fact that the commitment order has expired, it is unnecessary to resolve the question whether the defendant, in this case, had informed the court that he was not seeking a finding of incompetence." (Harris, supra, 14 Cal.App.4th at p. 996.) Harris thus did not even reach the issue of whether the defendant had "inform[ed] the court" that he was not seeking a finding of incompetence—it does nothing to support Cabrera's argument that she did so here.
On reply, Cabrera also argues that she informed the court that she was not seeking a finding of incompetence at the September 12 hearing before Judge O'Malley, where she insisted on addressing the court and repeatedly expressed that she was competent. But these comments were made to Judge O'Malley—not to Judge Davis, who held the hearing to appoint experts to examine Cabrera. Cabrera plainly did not "inform[]" Judge Davis that she was not seeking a finding of incompetence by telling a different judge that she believed herself competent at a hearing five days earlier.
Because we conclude that the statutory procedure was not violated, Cabrera's argument that the alleged failure to comply with the statute deprived her of due process necessarily fails. --------
Finally, defense counsel did not provide ineffective assistance by failing to request a second evaluator on Cabrera's behalf.
On direct appeal where the record does not disclose the reason for counsel's actions, we may reverse " 'only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation.' [Citations.]" (People v. Arredondo (2019) 8 Cal.5th 694, 711.)
Cabrera argues that she had "nothing to lose" by obtaining a second opinion, that "[t]he outcome could not have been worse" with such an opinion, and that her counsel's failure to request one "deprived her of her sole potential meritorious defense." But these arguments fail because there was no "tactical" advantage, nor any benefit to Cabrera, in being found competent if she was not: " '[Section 1368] seeks only to protect the accused. It is unfair to subject any defendant to criminal prosecution when he cannot understand the nature of the charges pressed against him or cannot assist in his own defense. Even when a defendant resists this protection by opposing the evidence of incompetency, it would be unfair to deny him the benefit of treatment for his condition before subjecting him to a potential loss of life or liberty in the criminal proceeding.' [Citation.]" (Harris, supra, 14 Cal.App.4th at p. 995.)
In this case, the record fails to eliminate the possibility that counsel reasonably concluded that it would not benefit Cabrera to seek a finding of competency and thus to request appointment of a second mental health expert. (See People v. Lawley, supra, 27 Cal.4th at p. 133, fn. 9.) It was defense counsel herself who first expressed concern about Cabrera's competency, and presumably she further concluded that a finding of incompetence was in Cabrera's best interest. (See People v. Jernigan (2003) 110 Cal.App.4th 131, 136-137 ["Counsel's interest in seeking to prove that defendant is incompetent is presumably based upon her judgment that it is in his best interest to do so. Certainly there is nothing in the record to suggest otherwise"].) Defense counsel was entitled to make this decision, even over Cabrera's objection. (See People v. Lightsey (2012) 54 Cal.4th 668, 697 [decision of a possibly incompetent defendant not to contest the issue of his or her own competence "ought to be considered inherently suspect"]; People v. Masterson (1994) 8 Cal.4th 965, 973 ["Whether or not the client objects, counsel must be allowed to do what counsel believes is best in determining the client's competence"]; Harris, supra, 14 Cal.App.4th at p. 994 ["defense counsel does not provide ineffective assistance of counsel or violate the defendant's due process rights by seeking to prove the defendant's incompetence over the defendant's objections"].)
DISPOSITION
The order is affirmed.
/s/_________
Richman, J. We concur: /s/_________
Kline, P.J. /s/_________
Miller, J.