Opinion
NOT TO BE PUBLISHED
City & County of San Francisco Super. Ct. No. 196483.
POLLAK, ACTING P.J.
Defendant Dennis Duree appeals from his conviction for five counts of second degree robbery, enhanced for personal use of a firearm, and a resulting 13-year prison sentence. The trial court originally granted a motion by defendant for a new trial on the nonstatutory ground that he had engaged in the robberies under duress and failed to disclose the duress during trial because of continuing threats by his codefendant, but in a previous appeal by the People, this court reversed the new trial order. (People v. Duree (May 13, 2009, No. A119516) [nonpub. opn.].) He now contends that his conviction must be reversed because the trial court failed to conduct a hearing into his competency despite asserted indications that he was not competent to stand trial. Although subsequent to his conviction defendant was determined to be incompetent, there were no signs of such incompetence before or during trial and no motion was made requesting such a hearing or a new trial on the ground of incompetence. We shall therefore affirm the judgment.
Background
By an information filed on September 12, 2005, defendant and a codefendant were charged with five counts of second degree robbery (Pen. Code, § 212.5, subd. (c)), each count with personal use of a firearm (§ 12022.53, subd. (b).) In a jury trial beginning on November 10 and concluding on December 2, 2005, defendant was found guilty on all counts and the enhancements were found true, but the codefendant—defendant’s cousin, Ronald Henry—was acquitted of all charges. In the sentencing memorandum submitted by defendant’s attorney, counsel described defendant as being of low intelligence, unsophisticated and particularly susceptible to suggestions, and argued that his participation in the offenses was attributable to the overpowering influence of Henry, and to the ingestion of drugs and alcohol provided by Henry before committing the crimes. Counsel advised the court that “throughout the pendency of this case, [defendant’s] choices have been adversely affected by the actions and ideas of another—namely, the codefendant Ronald Henry.” He declared that “it was always my impression that codefendant Henry’s opinions in the matter were ‘driving’ the case and that he was ‘imposing’ his views and beliefs about the case upon my client; conversely, I have always observed that... Mr. Henry was the ‘dominant’ personality and [defendant] was the more ‘silent, secondary’ personality. [¶]... [¶]... Mr. Henry was a ‘hothead’ who was controlling the decisions and opinions of [defendant].... I repeatedly stated my beliefs to [defendant] and also urged him to try and disregard the (often erroneous) ideas and opinions of codefendant Ronald Henry.” Counsel also submitted a letter requesting that defendant be sent to an addiction rehabilitation program because of “long standing drug/alcohol problems.”
All statutory references are to the Penal Code unless otherwise noted.
Rather than impose sentence, the court on February 1, 2006, ordered a diagnostic evaluation of defendant pursuant to section 1203.03. The diagnostic study returned to the court noted that defendant was “placed in the mental health program at the Critical Case Management level of care” for depression and “expressed... that he was hearing voices and seeing spirits.” “His behavior appears to be unpredictable and he may need further psychiatric care and/or evaluation to determine whether he has an emotional problem, or if he is feigning psychiatric symptoms.”There followed further court-ordered mental evaluations pursuant to section 4011.6. According to a May 4, 2006 report prepared by a jail psychiatric service clinician, “Mr. Duree is a diagnostic puzzle. In the past he has not been seen as suffering from a major mental illness. However, he is currently presenting as quite impaired. It is possible, considering his age, that he is experiencing his first psychotic break.”A psychologist who examined defendant on May 18, 2006, reiterated that defendant “may be suffering a ‘first break’ into psychosis” and reported that although he “noted obvious signs of malingering, ” he did “not necessarily rule out that [defendant] is psychotic” because “[o]ne can be both things at the same time.”
On June 2, 2006, defendant’s attorney expressed a doubt as to defendant’s competency and on June 6 the trial court found defendant incompetent and suspended proceedings pursuant to section 1368. On July 26, defendant was committed to Napa State Hospital for treatment, where he was diagnosed as suffering from chronic paranoid schizophrenia.
The following year, on May 11, 2007, the hospital certified that defendant had regained competency and on May 23 the court found that he had been restored to competency and reinstated the criminal proceedings. On July 24, 2007, defendant filed his motion for a new trial. At that time his former codefendant Henry was no longer living. The motion was based on the ground that defendant had participated in the robberies because Henry had threatened to kill him if he refused, and that defendant had not disclosed these threats earlier because Henry had also threatened to harm members of his family if he did. The declarations submitted in support of the new trial motion included the declaration of Bruce Hotchkiss, the attorney who represented defendant in the early stages of the criminal proceedings. Hotchkiss stated, “One of the most significant aspects of Mr. Duree’s case was my client’s absolute and unwavering insistence that the matter proceed on a ‘no time waiver’ basis. Given the very serious nature of the charges and significant penal exposure of the charges, Mr. Duree’s choice to proceed on a ‘no time waiver’ basis seemed almost irrational with very little/no apparent justification on his part behind the decision.... Although unable to proffer any reasonable explanation for the incriminating aspects in his case, Mr. Duree nevertheless remained absolutely convinced that he would be acquitted of the charges in a jury trial.” The attorney “was also struck by Mr. Duree’s firm insistence—in spite of substantial evidence to the contrary—that he and the codefendant [his cousin] did not know each other and had never seen the other prior to the filing of the case. [¶]... Over time, I came to believe that the unrealistic and inexplicable opinions that Mr. Duree held about his case originated, in part or in whole, from the codefendant, who appeared to be more experienced in matters of criminal activity.”
Garry Preneta, who was appointed to represent defendant when Hotchkiss withdrew as a result of defendant’s insistence on proceeding to trial within the statutory time limits, stated in his supporting declaration that he was “particularly struck by [defendant’s] inexplicable and ‘blind’ adherence to his assertions that he did not know Mr. Henry and that he did not commit the robberies in spite of the significant circumstantial evidence against him.” The attorney was “frustrated and confused by [defendant’s] constant and absolute refusal to consider and discuss the evidence against him and the precarious situation he was in. When I attempted to engage him in a discussion about the case and invite his own assessment of the case facts to elicit his help in shaping his defense, he had virtually nothing to say except to repeatedly express his belief that he would be found ‘not guilty.’ ”
The trial court granted defendant’s new trial motion on October 2, 2007, and the remittitur following reversal of that order was filed in the superior court on October 7, 2009. While the appeal was pending, defendant was charged with an assault while in custody. Proceedings in the assault case were suspended pursuant to section 1368, defendant was committed to Metropolitan State Hospital, and certified by the hospital to have been restored to competency on July 29, 2009. On October 16, 2009, the district attorney advised the court that defendant had apparently been returned to the state hospital under section 1368 in the assault case. On March 8, 2010, he was found to have been again restored to competency. Sentence was finally imposed in this case on April 8, 2010. A notice of appeal was filed the next day.
Discussion
As the Attorney General’s brief recognizes, “ ‘Trial of an incompetent defendant violates the due process clause of the Fourteenth Amendment to the United States Constitution and article 1 section 15 of the California Constitution.’ (People v. Hayes (1999) 21 Cal.4th 1211, 1281, citation omitted.) 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.’ (Pen. Code, § 1367, subd. (a); see also Indiana v. Edwards (2008) 554 U.S.164, 170 [defendant is competent when he can ‘consult with his lawyer with a reasonable degree of rational understanding’ and has a ‘rational as well as factual understanding of the proceedings against him’].) When competence is in question, ‘[t]he applicable legal principles are well settled. Both the due process clause of the Fourteenth Amendment to the United States Constitution and state law require a trial judge to suspend proceedings and conduct a competency hearing whenever the court is presented with substantial evidence of incompetence, that is, evidence that raises a reasonable or bona fide doubt concerning the defendant’s competence to stand trial. Failure to declare a doubt and to conduct a competency hearing when there is substantial evidence of incompetence requires reversal of the judgment.’ (People v. Halvorsen (2007) 42 Cal.4th 379, 401, citations and internal quotation marks omitted; Pen. Code, § 1368; see also People v. Welch (1999) 20 Cal.4th 701, 738 [substantial evidence is ‘evidence that raises a reasonable doubt concerning the defendant’s competence to stand trial’].)” (See also, e.g., Pate v. Robinson (1966) 383 U.S. 375; People v. Pennington (1967) 66 Cal.2d 508.)
Defendant emphasizes that the trial court has the duty to initiate competency proceedings when substantial evidence of incompetency appears, whether or not requested by counsel. (People v. Tomas (1977) 74 Cal.App.3d 75, 88.) And in considering whether there is substantial evidence creating a doubt about the defendant’s competency, the facts must be considered in the aggregate. (Drope v. Missouri (1975) 420 U.S. 162, 179-180.)
Defendant contends the trial court denied him due process by failing to conduct an inquiry into his competency when the record before it raised a reasonable doubt as to his competency. However, the record is clear that at no time before the jury returned its guilty verdicts did counsel (or anyone else) suggest to the court that there was any reason to question defendant’s competency nor did the defendant make any remarks or engage in any conduct before the court that gave rise to any reason to question his mental state. Defendant’s appellate brief contains an oblique suggestion that the facts of the crimes with which defendant was charged were so bizarre that they might have created a doubt about defendant’s competence. The evidence of the robberies presented at trial is set forth in our prior opinion in this case; defendant’s brief summarizes the offenses as “daylight robberies in public venues—undisguised and using his Uncle’s distinctive car—[which] made his identification and arrest inevitable.” However, as the brief goes on to acknowledge, “bizarre behavior, standing alone, does not raise a doubt about a defendant’s competence.” As our Supreme Court has observed, “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.” (People v. Ramos (2004) 34 Cal.4th 494, 508.) There was nothing about the charges against defendant that should have alerted the court to an issue of his competency.
Defendant’s brief argues that there was more that should have caused the court to question defendant’s competence, but refers solely to matters that occurred subsequent to defendant’s conviction. The brief points to the statements made by defendant’s two attorneys in the declarations supporting the new trial motion, quoted extensively above. However, while the attorneys thought defendant’s approach to his case was irrational, their declarations express no suspicions that defendant was incompetent—that he did not understand the charges or the nature of the proceedings or was incapable of working with counsel. The declarations were made in support of the contention that defendant had acted under duress, not that he was incompetent. More importantly, whatever reservations counsel entertained, there is no indication that they advised the court at any time prior to verdict, or at any time prior to the order granting a new trial, of any doubts they may have had as to defendant’s competency. Therefore, there is no basis on which the trial court can be faulted for not initiating an inquiry into defendant’s competency at any point prior to his conviction.
When the postconviction diagnostic examination ordered pursuant to section 1202.03 and the examinations ordered under section 4011.6 for the first time disclosed defendant’s mental issues, the court responded properly by suspending the proceedings under section 1368 and committing defendant for treatment. Proceedings did not resume until the court had determined that defendant’s competency had been restored. Defendant now argues that these steps were insufficient, and that the court should have ordered a hearing to determine retrospectively whether defendant was competent at the time of trial, citing United States v. Mason (4th Cir. 1995) 52 F.3d 1286, People v. Tomas, supra, 74 Cal.App.3d 75, and several state court cases from other jurisdictions. The contention lacks merit for several reasons.
Initially, defendant never requested the trial court to conduct such a hearing. While it is the court’s responsibility to ensure that a defendant’s competence has been determined when reason for doubt arises before continuing with criminal proceedings, the court has no similar duty to initiate proceedings to make such a determination retrospectively. (People v. Day (1988) 201 Cal.App.3d 112, 119-120 [“Defendant claims on appeal... that the trial court had a duty to resolve the question of his competence at the time of trial when the question was tendered by defense counsel after the verdict. We disagree. Section 1368 does not provide for a retroactive determination of a defendant’s competence.”].)
In United States v. Mason, supra, 52 F.3d 1286, on which defendant relies, the defendant’s counsel requested such a hearing the day after defendant was convicted and had attempted suicide, and filed successive motions in the trial court supported by evidence tending to show defendant’s incompetence during the course of the trial. Here, the matter was never raised. Although as matters progressed in 2006 the court became aware of defendant’s incompetence at that time, the court was neither presented with nor asked to consider evidence that he was incompetent during the trial several months before. The court made no ruling as to whether a hearing to determine competency retrospectively was justified. “Unless the trial court has been offered evidence on these issues relative to earlier proceedings upon restoration of competency, there is nothing for the appellate court to review.” (People v. Smith (2003) 110 Cal.App.4th 492, 506.)
Similar presentations were made in Ex parte Janezic (Ala. 1997) 723 So.2d 725 and People v. Pena (N.Y. App. 1998) 251 A.D.2d 26. The brief summary in People v. Arias (N.Y.App. 1979) 71 A.D.2d 551 does not disclose the procedural history in the trial court.
Secondly, the evidence of defendant’s incompetence in the spring of 2006 does not indicate that he was incompetent at the time of trial. (People v. Smith, supra, 110 Cal.App.4th at p. 506; see also, e.g., Booth v. Superior Court (1997) 57 Cal.App.4th 91; People v. Day, supra, 201 Cal.App.3d 112.) In Smith, reasons to doubt the defendant’s competence arose within one to three days after he had waived his right to a jury trial. Proceedings were suspended and the defendant was committed under section 1368. Upon restoration of defendant’s competence, the court refused to set aside the jury trial waiver on the ground that defendant was incompetent when he gave it. “No authority supports appellant’s argument that the temporal relationship between the waiver and the first evidentiary sign of incompetence alone is sufficient to invalidate an otherwise valid waiver.” (110 Cal.App.4th at p. 501.) Defendant had conferred with his attorney before making the waiver and, as in the present case, there were then no signs that he was confused or unable to understand what he was doing. Further, as is also true in this case, the Court of Appeal pointed out that “[t]here is nothing in the reports of the various physicians evaluating appellant that suggests his mental status had decompensated prior to [the date] when appellant’s confusion was first brought to the trial court’s attention. There is no evidence appellant had any problems understanding the proceedings or participating on [the previous day] and any claim that appellant’s incompetency began on that date is simply speculation.” (Id. at pp. 501-502.) The court went on to observe, “In the absence of evidence sufficient to find incompetence as a matter of law, or a retroactive finding of incompetency by the trial court, we cannot find the later incompetency finding under section 1369 reaches back to some unknown and unidentified point in earlier proceedings. Doing so would create an unmanageable and unjustified quagmire for appellate and trial courts alike.” (Id. at p. 505.)
We note that federal cases have held that where the issue of a defendant’s mental competency to stand trial was not raised in the trial court, in order to justify a retrospective competency hearing, the defendant “must present facts ‘sufficient to positively, unequivocally and clearly generate a real, substantial and legitimate doubt as to [his] mental competence.’ ” (United States v. Collins (7th Cir. 1991) 949 F.2d 921, 927.)
In contrast, in United States v. Mason, supra, 52 F.3d 1286, where the court found that the trial court should have granted a motion for a hearing to determine defendant’s competency retrospectively, defendant submitted affidavits stating that defendant’s treating physicians believed that the incompetency extended back to the time of trial. In People v. Tomas, supra, 74 Cal.App.3d at page 93, the evidence of defendant’s incompetence that was presented after trial also tended to show that the incompetence existed during trial, which required that the verdict be set aside. Similarly, in People v. Duncan (2000) 78 Cal.App.4th 765, another case on which defendant relies, the defendant presented substantial evidence that he was incompetent five months before he was found to be incompetent, at the time of his preliminary hearing, rendering his commitment unlawful. The evidence there included a lengthy history of prior commitments and treatment for psychosis, evidence that when jailed for the current offense the defendant was given a diagnosis of polar disorder, was hallucinating, and was treated with antipsychotic, antidepressant and anticonvulsant medications, and an expert opinion that he was incompetent at the time of the preliminary hearing. As we have indicated, no such evidence appears in the record of the present case.
Finally, not only is there an absence of evidence here that defendant’s subsequent mental issues rendered him incompetent during the trial, but the record suggests exactly the contrary. The report prepared by the probation department on January 11, 2006, preparatory to sentencing reported no mental health issues at that time, noting only that “defendant remembers seeing a psychiatrist at the age of 15 or 16, but was unspecific as to the reasons.”A clinician who examined defendant in May 2006 thought that defendant might be “experiencing his first psychotic break.” (Italics added.) Dr. Douglas Korpi, who examined defendant on May 18, 2006, expressed the same opinion. Further, according to Dr. Korpi’s report, defendant had not “ever come to the attention of psychiatric personnel, nor has he ever presented as peculiar, psychotic, or, in any way, odd. That is, he did not come to the attention of psychiatric personnel until quite recently, until he was sentenced for his current offenses. Thereupon, in approximately April of this year, he began to complain of evil spirits and present quite strangely.” While it may be true, as defendant now argues, that chronic paranoid schizophrenia develops slowly over months or years, the fact that he may have been suffering from that condition in the spring of 2006 does not establish that he was psychotic or incompetent in November 2005. (People v. Smith, supra, 110 Cal.App.4th at p. 502 [“the mere presence of a mental illness does not mean appellant was unable to understand the proceedings or assist in his own defense”].) If defendant in fact experienced his first psychotic break in May 2006, he was not psychotic six months before.
In short, there is nothing before us to indicate that defendant was incompetent during any of the proceedings leading to his conviction or that his right to due process was in any way compromised. Since defendant raises no other issues on appeal, his conviction and sentence must be upheld.
Disposition
The judgment is affirmed.
We concur: Siggins, J., Jenkins, J.