Opinion
G053833
02-16-2018
THE PEOPLE, Plaintiff and Respondent, v. DANIEL LEE ROMERO, Defendant and Appellant.
Jan. B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Hawley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15CF2183) OPINION Appeal from a judgment of the Superior Court of Orange County, John S. Adams, Judge. Affirmed. Jan. B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Hawley, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury found defendant guilty of one count of making a false bomb report. (Pen. Code, § 148.1, subd. (c).) In a bifurcated proceeding, the court found true that defendant was previously convicted of a serious and violent felony (§§ 667, subds. (d), (e)(1), 1170.12, subd. (b)) and had previously served a prior qualifying prison term (§ 667.5, subd. (b)). The court struck the priors and imposed a two-year prison sentence, but suspended execution of the sentence in lieu of three years of formal probation.
All statutory references are to the Penal Code.
The issue on appeal has nothing to do with the conviction or sentence per se. Rather, defendant contends the court erred by failing to hold a hearing pursuant to section 1368 to determine his mental competency to stand trial. He contends there was substantial evidence that he lacked competency. We disagree and affirm.
FACTS
This case arises from an incident in which defendant entered an area of a post office that was off limits to the public. He approached an employee who asked who he was. Defendant replied, "Don't worry about who I am. You just need to get me a postal inspector." The employee informed defendant he would have to be escorted off the property. Defendant responded by again demanding to see a postal inspector and stating the employee should be worried about who he is. The employee got help from a postal custodian who escorted defendant off the property.
When the employee returned to the building, she could hear defendant talking loudly in the lobby. The employee confronted him and said he had to leave or she would call the police. Defendant began cussing at her and "rambling all kinds of different things." Defendant refused to leave, so the employee pulled out her cell phone to call the police. When she did so, defendant said, "Oh, I knew it. I knew it. You have one of those gadgets. One of those gadgets. . . . But, you know what, ma'am? I have a bomb."
The employee called 911 and cleared the building. As defendant was walking out, he said, "All you need to do is love God and do what God says." The employee asked him where the bomb was, and defendant walked over to a manhole outside the post office and said, "It's down there. Pac Bell has them everywhere." The manhole covers outside the post office are labeled "Bell System." After making the threat, defendant walked quickly away down the street.
The police apprehended defendant nearby. Defendant admitted telling the postal employee there was a bomb under the manhole cover. He also acknowledged it was illegal and wrong to make a bomb threat. He was cooperative and appeared to comprehend everything the officer asked him. When he was arrested he indicated he understood his Miranda rights.
Prior to the preliminary hearing, the People offered to refer the case to the mental health court. The defendant initially declined the offer, notwithstanding the possibility of it resulting in dismissal of the charges against him. Defendant claimed to have been abused at a mental health facility in the past. However, after an off-the-record discussion, defendant changed his mind.
At the hearing, defendant wanted to "stress" the following to the court: "Can you make sure there is some type of way I participate in this program and they put me in some retirement community, and keep an eye on me, because I tell you I have had 25 years of my life spent in and out behind bars. I'm almost 50-years old now. [¶] I'm not saying I'm a danger to myself or a danger to the public in that way, but I feel I need to be retired in some kind of way, from this kind of lifestyle I was involved in, as far as having trouble with the law and kind of spats with the law." "When you have 25 years of incarceration, from county to county, city to city, that's enough to retire." When the court commented that he could find a job and be productive afterwards, defendant responded, "I would really love to work in the future as a deputy sheriff. I really would. If I get - my record is excellent. I have never used a firearm. I don't have any record of using illegal drugs. I do have a record of violence and assaults, but I have never used drugs and I have never used a firearm. I have no wish to use drugs or a firearm. In the future I would like to work in law enforcement." "Your honor, I saved the life of a lot of Sheriff's children, but I had to be quiet, and community park and residents, and stuff, I helped a lot of people. I did that from my own heart, even in my own need. Even though there were contacts with injuries. I hold nothing against nobody." With that said, the court ordered: "It appearing to the Court and counsel that the defendant may be mentally disordered, the Court therefore orders a 72 hour treatment evaluation pursuant to Penal Code 4011.6 and Welfare and Institutions Code 5150."
A confidential report was prepared and filed with the court. The report indicated defendant has a major mental illness/disorder and is gravely disabled, but was not a danger to himself or others. The diagnosis was "Psychotic disordered not otherwise specified." The narrative portion of the report stated, "[Defendant] was highly agitated, uncooperative, angry, and labile. He was verbally threatening and noted to be paranoid. He was transferred to the psychiatric unit of the jail. Initial psychiatric evaluation was done on 9/24/15. [Defendant] was hostile, agitated, and yelling. He was verbalizing delusions of a religious nature and believed he could save the world. Antipsychotic medication was ordered. By 9/28/15 he was calmer but continued with religious delusions stating he could heal by touch and was a Holy person. He was cleared to the subacute psychiatric unit at that time. [Defendant] remains in the subacute psychiatric unit." After being seen again on October 6, 2015, the report stated, "He was calm and cooperative but continued to voice delusions of a religious nature. He stated he was unable to access the Social Security office for disability due to 'fighting' at a synagogue that was nearby. If released at this time [defendant] would likely meet the criteria of gravely disabled and be placed on a 5150 and sent to a designated psychiatric facility."
Subsequently, a hearing was held to determine defendant's eligibility for mental health court eligibility, but he was deemed ineligible. We do not have a record of that hearing.
At trial, after the People put on evidence of the events described above, the defense called a mental health expert who opined defendant suffered from schizophrenia/schizoaffective disorder. The expert relied in part on a 2012 report following a 72 hour hold under Welfare and Institutions Code section 5150 in which defendant was diagnosed as having schizoaffective disorder. There, defendant had been found in a pet cemetery where he believed he was visiting his mother. She also relied on information that defendant was first hospitalized for psychiatric problems at age 12 or 13. As an adult he had been hospitalized at Brea Neuropsychiatric Hospital and Patton State Hospital. Based on her interviews with defendant, the expert concluded defendant had not been taking medication at the time of the events in this case and was delusional at the time.
DISCUSSION
The single issue on appeal is whether the court erred by failing to order a fitness hearing to determine defendant's competency to stand trial. "A person cannot be tried or adjudged to punishment or have his or her probation, mandatory supervision, postrelease community supervision, or parole revoked while that person is mentally incompetent. A defendant is mentally incompetent for purposes of this chapter 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); see § 1368 [setting forth the procedure for a competency hearing].)
There are two potentially applicable standards of review. "[A] trial court is obligated to conduct a full competency hearing if substantial evidence raises a reasonable doubt that a criminal defendant may be incompetent. This is true even if the evidence creating that doubt is presented by the defense or if the sum of the evidence is in conflict. The failure to conduct a hearing despite the presence of such substantial evidence is reversible error." (People v. Lightsey (2012) 54 Cal.4th 668, 691 (italics added).) "When the evidence casting doubt on an accused's present sanity is less than substantial," "[w]hether to order a present sanity hearing is for the discretion of the trial judge, and only where a doubt as to sanity may be said to appear as a matter of law or where there is an abuse of discretion may the trial judge's determination be disturbed on appeal." (People v. Pennington (1967) 66 Cal.2d 508, 518; see People v. Panah (2005) 35 Cal.4th 395, 432 ["Absent substantial evidence of defendant's incompetence, 'the decision to order such a hearing [is] left to the court's discretion'"].)
"'Substantial evidence' has been defined as evidence that raises a reasonable doubt concerning the defendant's competence to stand trial. [Citations.] In People v. Pennington, supra, 66 Cal.2d at page 519, [our high court] enunciated the following standards regarding what would constitute substantial evidence of incompetence to stand trial: 'If a psychiatrist or qualified psychologist [citation], who has had sufficient opportunity to examine the accused, states under oath with particularity that in his professional opinion the accused is, because of mental illness, 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, the substantial-evidence test is satisfied.'" (People v. Welch (1999) 20 Cal.4th 701, 738.) "'"[M]ore is required to raise a doubt [of competence] than mere bizarre actions [citation] or bizarre statements [citation] . . . or psychiatric testimony that defendant is immature, dangerous, psychopathic, or homicidal or such diagnosis with little reference to defendant's ability to assist in his own defense [citation]."'" (People v. Danielson (1992) 3 Cal.4th 691, 727, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) "In resolving the question of whether, as a matter of law, the evidence raised a reasonable doubt as to defendant's mental competence, we may consider all the relevant facts in the record." (People v. Young (2005) 34 Cal.4th 1149, 1217.)
Defendant's brief muddles the distinct standards of review, stating, "The determination of whether or not the defendant has presented substantial evidence is a discretionary decision by the trial court." This is incorrect. Whether the evidence of incompetency is substantial is a legal question we review independently. Whether something less than substantial evidence should have compelled a competency hearing we review for abuse of discretion. Defendant's subsequent arguments are entirely confined to a substantial evidence analysis, however, and thus we similarly limit our analysis.
With that said, we can certainly understand defendant's confusion. We have not encountered any case holding the evidence was less than substantial, but the court abused its discretion, and we are hard pressed to imagine any hypothetical circumstance in which that would arise. --------
Defendant relies primarily on People v. Murdoch (2011) 194 Cal.App.4th 230. There, the court held a competency hearing. Court appointed experts found the defendant had a severe mental illness, yet was presently competent to stand trial due to medication, but was inconsistent with his medication and would be incompetent absent the medication. (Id. at p. 233.) The court found the defendant was mentally competent, and later granted his request to represent himself. (Id. at p. 234.) Defendant informed the court his defense was that the victims were not human. According to defendant, they were angelic beings, and the proof would be that they do not have shoulder blades. (Ibid.) When one of the witnesses took the stand, defendant cross-examined her with a single question: "Can you shrug your shoulders like this?" When the witness complied, he declared that this was not the right person. (Id. at p. 235.)
The court of appeal found there was substantial evidence of incompetence and the court should have held another hearing. The court relied on the prior reports regarding the defendant's "fragile competence," his refusal to consistently medicate, and the distinct possibility of regressing to incompetence. (Id. at p. 237.) This evidence moved the case beyond mere bizarre statements or actions and constituted substantial evidence of incompetence requiring a competency hearing. In particular, the court needed to determine whether the defendant was still taking his medication. (Id. at p. 238.)
Nothing like those circumstances is present here. Although there was certainly evidence that defendant had a mental illness, there was no evidence that his mental state impaired his ability to assist his counsel and to understand the nature of the proceedings against him. (See People v. Mickel (2016) 2 Cal.5th 181, 203 ["statements by expert that defendant suffered from mental illness and exhibited erratic and psychotic behavior not substantial evidence of incompetence"]; People v. Blair (2005) 36 Cal.4th 686, 714, overruled on another ground by People v. Rices (2017) 4 Cal.5th 49, 76 ["even a history of serious mental illness does not necessarily constitute substantial evidence of incompetence that would require a court to declare a doubt"].) To the contrary, even in his somewhat delusional ramblings, defendant understood he was in trouble with the law and expressed a desire to change his lifestyle. Moreover, defense counsel did not declare a doubt. The sum total of the evidence here was a diagnosis of a mental illness, combined with some bizarre and delusional statements at a pretrial hearing. There was no evidence bearing directly on defendant's ability to understand the nature of the proceedings and assist counsel in his defense. This is just the sort of evidence that cases have consistently deemed to be insubstantial. Accordingly, there was no error.
DISPOSITION
The judgment is affirmed.
IKOLA, J. WE CONCUR: BEDSWORTH, ACTING P. J. ARONSON, J.