Opinion
NOT TO BE PUBLISHED
Sup. Ct. No. 01F09137
MORRISON, J.
Following a jury’s finding that defendant Derrick Kinte Courtney was competent to stand trial, a jury convicted him of first degree murder (Pen. Code, §§ 187, subd. (a); 189) with a finding that a principal was armed with a firearm in the commission of the offense (§ 12022.2, subd. (a)(1)). Then, in a trial by court, the court found true a special circumstance allegation that defendant had a prior conviction for first degree murder (§ 190.2, subd. (a)(2)). Defendant was sentenced to state prison for life without the possibility of parole plus an additional year for the armed finding, this term to run consecutively to a sentence defendant was then serving for the other first degree murder.
Hereafter, references to undesignated sections are to the Penal code.
Relying on People v. Castro (2000) 78 Cal.App.4th 1402 (Castro), defendant contends that reversal of his latest murder conviction is required because the trial court prejudicially erred when it failed to appoint, sua sponte, the Director of the Regional Center for the Developmentally Disabled (hereafter the DRC) to evaluate his competency to stand trial.
The People counter that Castro, supra, 78 Cal.App.4th 1402 was wrongly decided and that “the statutory scheme makes clear” that the DRC is not required to assess defendant’s competence to stand trial. Even if the court was required to appoint the DRC, the People continue, reversal is not required because defendant suffered no prejudice.
Following the filing of the briefs in this case, the California Supreme Court rendered its opinion in People v. Leonard (2007) 40 Cal.4th 1370 (Leonard), holding that where it is reasonably suspected that defendant may be developmentally disabled, the court is required on its own motion to appoint the DRC to examine defendant’s competence to stand trial. (Id. at pp. 1387-1388.) However, contrary to the holding in Castro, supra, 78 Cal.App.4th 1402,a trial court’s erroneous failure to appoint the DRC does not require reversal of the defendant’s conviction (Leonard, at p. 1389.) Instead, reversal is not required “unless the error deprived [the defendant] of a fair trial to determine his competency.” (Id. at pp. 1389-1390.)
In light of Leonard, supra, 40 Cal.4th 1370, we conclude that the trial court herein erred when it failed to appoint the DRC to examine defendant’s competency to stand trial, but that defendant was not prejudiced by the error.
Because defendant’s sole challenge is to the fairness of his competency hearing, the facts relating to his jury trial on the homicide charge are not set forth. Facts regarding the competency hearing are set out later in the opinion.
The Law Relating to Competency
“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; Cooper v. Oklahoma (1996) 517 U.S. 348, 354 [134 L.Ed.2d 498, 506] [defendant may not be put to trial unless he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding of the facts and proceedings against him].)
When a court declares a doubt as to defendant’s competence to stand trial, “The court shall appoint a psychiatrist or licensed psychologist, and any other expert the court may deem appropriate, to examine the defendant. . . . If it is suspected the defendant is developmentally disabled, the court shall appoint the director of the regional center for the developmentally disabled . . . to examine the defendant. The court may order the developmentally disabled defendant to be confined for examination in a residential facility or state hospital. [¶] The regional center director shall recommend to the court a suitable residential facility or state hospital. Prior to issuing an order pursuant to this section, the court shall consider the recommendation of the regional center director. While the person is confined pursuant to order of the court under this section, he or she shall be provided with necessary care and treatment.” (Former § 1369.)
Section 1369 has subsequently been amended, however the amendment does not affect the analysis herein.
“‘[D]evelopmental disability’ means a disability that originates before an individual attains age 18, continues, or can be expected to continue, indefinitely and constitutes a substantial handicap for the individual, . . . [T]his term shall include mental retardation, cerebral palsy, epilepsy, and autism. . . .” (§ 1370.1, subd. (a)(1)(H), italics added.)
Where the record shows the existence of one of the specified conditions constituting a developmental disability, which originated prior to the defendant’s 18th birthday, which is expected to continue indefinitely, and which constitutes a substantial handicap for him, the court must appoint the DRC to examine him as part of the competency proceedings. (Leonard, supra, 40 Cal.4th at pp. 1387-1388.)
Was the Court on Notice that Defendant May Be Mentally Disabled?
Yes.
In February 2002, defendant pled not guilty to the instant criminal complaint charging him with murder. In May, prior to the preliminary hearing, defendant’s counsel informed the court that he had a doubt as to defendant’s competence to stand trial, criminal proceedings were suspended and the court appointed doctors to examine defendant.
Two codefendants were similarly charged, however, their cases were severed from defendant’s.
Prior to defendant’s jury trial on his competency, which commenced October 21, 2003, the court had before it an evaluation of defendant’s competency by Dr. Jacqueline Keller, Ph.D. Dr. Keller’s report observed that several other psychological evaluations had listed defendant as falling within “the mild to moderate mental retardation range.” After interviewing defendant, Dr. Keller concluded that defendant’s “intellectual functioning falls between mild and moderate mental retardation.”
Also prior to the competency trial, defendant had filed a motion to dismiss the trial proceeding based upon grounds of res judicata and collateral estoppel due to his having previously been found by a court to be mentally retarded and which contained, as noted by the court, a 1997 order for defendant’s commitment as a “a mentally retarded person.”
Finally, and again prior to the commencement of the competency trial, the prosecutor informed the court: “No one has ever said that [defendant] has a personality disorder on the level of schizophrenia or delusional or any of that. [¶] There is only one issue really addressed by these doctors [and that] is his intelligence level. [¶] We have a history of psychiatrists presenting IQ tests to the defendant and stating that he is not intellectually capable of exercising rights intelligently.”
The foregoing constitutes abundant evidence that defendant could be incompetent due to the developmental disability of being mentally retarded; therefore, it was error for the court not to have appointed the DRC to examine defendant.
In light of Leonard’s unequivocal statements that where a defendant is reasonably suspected of being developmentally disabled, the trial court is required to appoint the DRC to evaluate the defendant’s competence to be tried (Leonard, supra, 40 Cal.4th at pp. 1389-1391), we need not address the People’s strained argument that no such appointment is required.
Was the Court’s Error in Failing to Appoint the DRC Prejudicial?
No.
Notwithstanding a trial court’s error in failing to appoint the DRC to evaluate defendant’s competency, reversal of the defendant’s ensuing criminal conviction is not required so long as the defendant has been afforded a “competency trial [which] protected his right not to be tried or convicted while incompetent.” (Leonard, supra, 40 Cal.4th at p. 1391.)
In Leonard, the defendant was charged with multiple counts of murder when the court expressed doubt as to his competency to stand trial. (Leonard, supra, 40 Cal.4th at pp. 1376, 1387.) The court appointed two doctors to evaluate him, but did not appoint the DRC even though the court was aware that the defendant suffered from epilepsy, one of the conditions rendering him developmentally disabled. (§§ 1369, 1370.1, subdivision (a)(1)(H).) (Id. at pp. 1387-1389.) In a trial by court, defendant was found competent and subsequently convicted of the murders. (Id. at pp. 1385-1387.)
On automatic appeal to the California Supreme Court, the defendant argued his convictions must be reversed because of the trial court’s failure to have his competency evaluated by the DRC. (Leonard, supra, 40 Cal.4th at pp. 1387-1388.) The Leonard court agreed that the DRC should have been appointed because one of its purposes, and the only one relevant to the issue raised, was “to ensure that a developmentally disabled defendant’s competence to stand trial is assessed by those who have expertise with such disability.” (Id. at p. 1389.)
Reversal of the defendant’s convictions was not required because that purpose had been satisfied. The court stated: “[T]he trial court’s competency determination was based on evidence from experts who were familiar with defendant’s developmental disability and who considered it in evaluating his competence. Dr. Schaffer, the court-appointed psychiatrist who testified that defendant was competent to stand trial, was a professor at the University of California at Davis School of Medicine and a diplomat of the American Board of Psychiatry and Neurology. Even though he did not specialize in epileptic patients, he had observed patients who had seizures similar to those of defendant. Similarly, Dr. Lynch, the neuropsychologist who testified for the defense, had treated many epileptic patients, although his primary area of expertise pertained to head injuries, not epilepsy.” (Id. at p. 1390.)
Dr. Lynch did not say whether he believed defendant was competent to stand trial. (Leonard, supra, 40 Cal.4th at pp. 1386-1387.)
Since the defendant had been evaluated by experts in the field which, in turn, enabled the trier of fact to make an informed determination of defendant’s competency to stand trial, defendant’s right not to be tried while incompetent had been protected, and reversal was not required. (Leonard, supra, 40 Cal.4th at p. 1390.)
We reach a similar conclusion here. Although defendant should have been, but was not, evaluated by the DRC, the doctors who did evaluate him were qualified and acutely aware of his mental disability.
Dr. Carolyn Fowle received a doctorate in psychology from the University of the Pacific in 1966; she had been practicing as a clinical psychologist since that time and had seen “thousands” of patients; she had qualified as an expert witness in both state and federal court; and she was a member of American College of Forensic Psychology, the American Psychological Association and the California Psychologist’s Association.
Dr. Fowle evaluated defendant and, based upon a personal interview with defendant and after reviewing prior reports of 12 or 13 other doctors who had examined him, opined that he had no mental disorders; that he was moderately mentally retarded based upon previous testing which showed his IQ to be in the range of 44 to 69; and that it was unlikely defendant could assist counsel in his defense. Therefore, she concluded, based upon his developmental disability of being mildly mentally retarded, he was incompetent to stand trial.
Dr. Lorin Frank also evaluated defendant. Dr. Frank had received his doctorate in psychology from the University of California, San Diego, and had been licensed to practice in California since 1979. For approximately seven years, Dr. Frank worked at a residential treatment center for adolescents providing therapy and testing for a variety of teenagers, including those who were “borderline mentally retarded[,]” but not those moderately or mildly retarded.
Dr. Frank had examined defendant in 1999 and 2002 and prepared reports. On both occasions Dr. Frank tested defendant and found his IQ to be about 69, a score placing him between mild and borderline retardation. In both 1999 and 2002, Dr. Frank had opined that defendant was not competent to stand trial based on his intellectual level. However, in September 2003, after reviewing the transcript of an interview of defendant conducted by a Detective Keller regarding an unrelated offense, Dr. Frank changed his opinion. While Dr. Frank still believed defendant was borderline mentally retarded, he now believed that defendant would be able to cooperate with counsel, and, therefore, was competent to stand trial.
Dr. Mark Hoffman received his doctorate from Brigham Young University and was presently employed at Folsom State Prison as a clinical psychologist, specializing in evaluating inmates who suffered brain damage or brain impairment. Since 1984, Dr. Hoffman had evaluated over 100 individuals for competency to stand trial.
In October 2002, Dr. Hoffman interviewed defendant after having read reports from other psychologists which were given to him by defense counsel and which had concluded defendant was mildly mentally retarded and incompetent to stand trial. Based upon his interview with defendant, Dr. Hoffman found that defendant had no significant memory impairment, that he was capable of understanding facts presented to him in a relevant manner, and that while “his intellectual functions . . . had some notable limitations[,]” he would be able to assist his counsel in a rational manner.
Dr. Hoffman’s opinion was reinforced after he reviewed Detective Keller’s interview with defendant. Defendant’s interaction with Detective Keller was not indicative of someone who was mentally retarded. Dr. Hoffman also referred to the prior reports he believed the IQ tests were unreliable because of the wide variance in their range (44-69) -- while a person could intentionally score low on an IQ test, one could not fake the test by scoring high. Dr. Hoffman had “no doubt” that defendant could assist his counsel in a rational manner.
Similar to the circumstances in Leonard, supra, 40 Cal.4th 1370, the record herein shows that defendant was evaluated by experts who understood his disability and who were qualified to advise the trier of fact about whether that disability might render defendant incompetent. Consequently, defendant’s competency trial protected his constitutional right not to be convicted while incompetent.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P.J., CANTIL-SAKAUYE, J.