NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. VA081798, Larry S. Knupp, Judge.
Elisa A. Brandes, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
In pretrial proceedings, the trial court found defendant Floyd Gus Patterson mentally competent to stand trial, pursuant to Penal Code section 1368. The jury found defendant guilty of inflicting corporal injury on a child in violation of section 273d, subdivision (a). In a separate proceeding, the jury found the recidivism allegations true—that defendant had suffered five serious or violent felony convictions under the three strikes law (§ 1170.12, subds. (a)-(d); § 667, subds. (b)-(i)), and had served a prior prison term (§ 667.5). Prior to sentencing, the trial court again found defendant mentally competent. At the sentencing hearing, the trial court dismissed four of the strikes in the interest of justice pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. Defendant received a five-year prison term, consisting of the low term of two years on the corporal injury conviction, doubled due to the one remaining strike prior conviction, plus one year for the prison term enhancement.
All further statutory references shall be to the Penal Code unless noted otherwise.
In his timely appeal, defendant raises three claims of error arising out of the trial court’s mental competency rulings: (1) The court’s misreading of Dr. Ronald Markman’s psychiatric evaluation of defendant rendered its determination so unreliable as to violate defendant’s due process rights; (2) there was insufficient evidence to support the court’s findings of competency; and (3) the court was required to hold a second competency hearing, in response to defendant’s erratic behavior and defense counsel’s evaluation thereof, after the jury returned its verdict. We agree with defendant’s first contention but reject the other two. As we explain, the judgment is conditionally vacated and the matter is remanded for a new competency hearing, based on the evidence as it existed prior to trial. At the new hearing, the trial court will reconsider defendant’s competency in light of Dr. Markman’s report, which concluded that defendant was not competent to stand trial.
STATEMENT OF FACTS
As defendant’s appeal does not concern the facts of his conviction, we state them summarily. On March 21, 2004, defendant confronted victim Danny Berrios, who was 17 years old at the time. Defendant threatened Berrios verbally and punched him repeatedly, inflicting some facial trauma on Berrios. The victim fought back and eventually subdued defendant. When the police arrived, defendant resisted. The officers found it necessary to use pepper spray on defendant in order to arrest him.
The Competency Proceedings
On May 17, 2004, a month after the information had been filed, defense counsel Milton Bodek declared a doubt concerning defendant’s mental competence pursuant to section 1368, which provides that “[i]f counsel informs the court that he or she believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendant’s mental competence is to be determined in a hearing . . . .” (§ 1368, subd. (b).) Bodek explained that he had retained a psychiatrist, Dr. Kaushal Sharma, to interview defendant, but the expert found it “impossible to have a meaningful communication.” Accordingly, the trial court declared a doubt as to competency, suspended all proceedings in the prosecution pursuant to section 1368, subdivision (c), and granted the defense request to have two medical examiners appointed. Based on her knowledge of defendant’s mental health history, the prosecutor stipulated to have a single psychiatrist examine defendant, and the court appointed Dr. Edward Fischer.
Bodek represented defendant prior to trial. Defendant had other counsel at trial.
On June 21, 2004, the trial court declared defendant mentally incompetent under section 1368, based on Dr. Fischer’s written report, dated June 18, 2004. According to Dr. Fischer, defendant had refused to cooperate with the mental health examination. Jailors had placed defendant in isolation because of his bizarre, combative behavior. In his brief conversation with Dr. Fischer, defendant professed ignorance of the charges against him and his attorney’s identity. Defendant’s “spontaneous verbalizations” were unresponsive. According to Dr. Fischer, defendant appeared autistic, self-absorbed, with impaired judgment, and lacked insight. Defendant was diagnosed with paranoid schizophrenia. Dr. Fischer recognized the possibility that defendant was malingering, but found no indication that he was capable of cooperating with his legal counsel or court personnel unless he received (and complied with) treatment and prescribed psychotropic medication. The psychiatrist concluded that defendant was not presently competent to stand trial within the meaning of section 1368, and should be hospitalized and treated at Patton State Hospital to regain competency.
The confidential written reports and evaluations were not included in the clerk’s transcripts. Upon our request, the superior court provided the following documents pursuant to a certification: (1) The Dr. Fischer report (June 18, 2004); (2) the Gateways conditional release program recommendation report (July 1, 2004); (3) the Patton State Hospital progress reports (Nov. 9, 2004, May 10, 2005, and Aug, 16, 2005); (4) the certification of mental competence by Dr. Sarla Gnanamuthu (April 16, 2005); (5) the report of Dr. Ronald A. Markman (Oct. 4, 2005); (6) the report of Dr. Kausal K. Sharma (Oct. 24, 2005); and (7) the report of Dr. Marshall S. Cherkas (April 3, 2006).
On July 7, 2004, the trial court considered the report from the Los Angeles Conditional Release Program and found defendant not amenable to treatment at the community level. The trial court concurred in the recommendation that defendant be committed to the California Department of Mental Health for treatment at Patton State Hospital until his competency was restored.
The trial court considered a progress report from the state hospital on December 7, 2004. That report, dated November 9, 2004, diagnosed defendant as suffering from schizophrenia and described defendant’s treatment as including psychotherapy and a medication regimen. Defendant’s response to the regimen was poor. He had difficulty attending to tasks, appeared distracted and preoccupied, and exhibited “odd posturing” when meeting staff members. During his meeting with the hospital treatment team, defendant refused to participate and terminated the meeting abruptly. The report found defendant remained incompetent to stand trial, but concluded that there was a substantial likelihood that defendant would regain mental competency, and recommended continued commitment and treatment. The trial court ordered defendant retained at Patton State Hospital. The state hospital submitted a second progress report, dated May 10, 2005, which set forth the same diagnosis, made similar findings, and reached the same conclusion and prognosis. The trial court considered that report on June 15, 2005, and ordered defendant’s commitment continued.
On August 16, 2005, the medical director of Patton State Hospital, Dr. Sarla Gnanamuthu issued a certification of mental competence on behalf of defendant. Dr. Gnanamuthu found defendant currently competent to be tried, but cautioned that a “speedy trial is important for maintenance of trial competency.” The hospital progress report of that same date explained that while defendant’s behavior “has had ups and downs,” those problems were “largely related to his consistency in taking his medications.” Defendant’s diligent application to his treatment regime—including his work with the unit psychologist on “his mood and the court material”—had resulted in markedly improved behavior. At his August 16 meeting with the treatment team, defendant showed himself to be ready for participating in his trial: “His knowledge of the court material was very good and he convinced the staff that he was able to work with his attorney and ready to return to court.” While finding defendant restored to competency, the hospital cautioned that “it is critical that [defendant] continue taking the prescribed medication while in custody in order to ensure continued competency.”
Having received the hospital’s competency certification and latest progress assessment, the trial court held a hearing on September 29, 2005. Defendant, however, refused to appear in court. Defense counsel informed the court he just returned from attempting to interview defendant, but had found him “very, very seriously mentally ill” and “completely incompetent in respect to speaking to me in any meaningful fashion.” Defendant’s statements regarding the underlying incident appeared incoherent. Defendant refused to discuss the facts of the case. Consistent with the odd posturing described in the November 9, 2004 assessment report, defendant “began to circle around and stand up and keep spinning around while he was trying to express his emotions.” Counsel did not believe defendant was malingering. Accepting defense counsel’s representations, the trial court ordered that the prosecution remain suspended, and appointed mental health examiners for both parties—Dr. Sharma for the defense and Dr. Markman for the prosecution.
The competency hearing took place on December 7, 2005. In addition to the August 16, 2005 assessment report and competency certification, the trial court had reviewed the reports from Drs. Markman and Sharma. Dr. Markman’s report, dated October 4, 2005, concluded defendant was “not competent to stand trial within the meaning of section 1368.” More specifically, Dr. Markman explained that he conducted a psychiatric evaluation of defendant the previous day. The doctor commenced his interview by explaining that his findings would be disclosed to the court and prosecution. Defendant admitted being on medication, but would not identify the drug or say why it was being administered. When the psychiatrist attempted to start a conversation by asking if defendant was aware that his name was famous, defendant “responded that he was the boxer who became heavyweight champion.” When Dr. Markman suggested that was impossible because defendant’s birth date was the year after his namesake Floyd Patterson had become heavyweight champion, defendant “initially became very defensive and then totally mute, refusing to participate in the interview any further.” The psychiatrist terminated the interview after approximately 20 “fruitless minutes without any interaction.”
As a result, Dr. Markman was unable to verify that defendant had not been taking his prescribed medications, but found defendant’s uncooperative behavior consistent with that exhibited to Dr. Fischer, as discussed in the latter’s June 2004 report. Dr. Markman found defendant’s behavior reflected an underlying, chronic mental disorder that was “indicative of an inability to cooperate in a rational manner with counsel in his defense, notwithstanding [defendant’s] intellectual awareness of the pending legal proceedings. Accordingly, despite the limited clinical input, the information provided in the medical records I reviewed indicate a repeated deterioration of [defendant’s] mental condition at this time to the degree that he is not competent to stand trial within the meaning of Section 1368 . . . . He requires psychiatric hospitalization and appropriate psychotropic medication . . . . The history suggests non-compliance and the prognosis is both guarded and poor.”
Dr. Sharma’s report, dated October 24, 2005, was based primarily on his examination of defendant on October 19, along with his review of the available mental health evaluations, including Dr. Fischer’s and those from the state hospital (but not Dr. Markman’s). Dr. Sharma concluded “defendant is marginally competent to stand trial.” The psychiatrist noted that defendant lacked intellectual acumen—“is not too bright”—but did “not demonstrate any psychotic symptoms” during the interview. While defendant was not forthcoming and his language tended to be vague, defendant related a basic understanding of the charges and special allegations against him, and professed his innocence thereof. Critically, Dr. Sharma found defendant did “not show symptoms of a diagnosable mental illness.” At the same time, however, Dr. Sharma cautioned that defendant’s cooperation was “less than optimal.” The psychiatrist believed defendant’s competence to be “only marginal because [defendant] is not very bright and requires repeated clarification regarding simple issues. Therefore, he will be a very difficult client for his attorney to handle.”
The trial court summarized the documentary evidence before it, most significantly the competency certification and related findings of Dr. Gnanamuthu on behalf of the state hospital, along with Dr. Sharma’s opinion of competency. The court found Dr. Markman’s evaluation of little value, apparently based on its mistaken understanding that “for some reason [Dr. Markman] doesn’t give his opinion on whether or not the defendant is competent to stand trial.”
The trial court engaged in a colloquy with defendant, in which defendant represented that he did not know why he was in court or what he had been charged with. While some of defendant’s responses showed knowledge of the underlying facts and charges (“I got all beat up by the teenager”), others appeared mistaken or incoherent (“I have been arrested for three years”). The court found defendant mentally competent based on the certification of mental competency and Dr. Sharma’s opinion in his October 24, 2005 report—and despite Dr. Markman’s report.
Trial commenced on February 6, 2006. Two days later, the parties rested. On February 9, the parties were informed the jury had reached a verdict on the underlying offense. Prior to the jurors’ entering the courtroom, the court and defendant engaged in a fully coherent and rational discussion concerning whether he would be handcuffed for the reading of the verdicts. After the verdict was read and the jury had left the courtroom, defendant refused to talk to his counsel about whether he would waive a jury trial as to the prior conviction allegations. Counsel explained: “That’s been the situation all morning.” When the court attempted to explain the case’s procedural posture, defendant launched into a partially incoherent rant concerning the trial, the underlying incident, his innocence, and other apparently unrelated matters—culminating with his demand to be removed from the courtroom: “Get me out of here. You can’t convict me like that. . . . I don’t want to hear about no jury.” Defense counsel explained that defendant had refused to speak to him in custody and on the telephone. During the trial itself, defendant was incommunicative—like a “potted plant.”
Defendant repeatedly refused to answer the trial court’s question concerning whether he would waive a jury trial on the prior conviction allegations, insisting that he did not have to appear in court. Defense counsel expressed his opinion that defendant was mentally incompetent. The court permitted defendant to leave the courtroom. Defense counsel further explained that defendant refused to talk to him on the first day of trial. On the trial’s second day, defendant was wailing and crying in lockup. When counsel tried to calm him, defendant would say he was “fine” in an expressionless manner. During the trial, defendant gave counsel no information concerning the case. On the morning of the verdicts, defendant had urinated on himself.
The trial court noted that while defendant was currently acting “in an extremely erratic manner,” he had previously been found competent by two psychiatrists. Additionally, defendant “seemed to understand” when the court spoke to him before the trial started, was “extremely polite” during the trial, and “certainly understood after the verdict was read . . . that he had been convicted of this crime.” The court believed defendant was mentally competent, despite his apparent mental health problems. Defendant’s understanding of the judicial proceedings was evidenced by the fact that he showed that he knew “how to act in front of a jury” and his erratic behavior commenced with the reading of the unfavorable verdict. The court’s finding of competency was based on “the totality of watching [defendant] during this entire trial as well as my interactions with him before the trial and seeing him after the trial being very upset once he was convicted.”
The bailiff informed the trial court that defendant “absolutely” refused to return to the courtroom. “He is extremely agitated. He is combative.” The court found good cause to continue with the trial in defendant’s absence. After the jury reached its verdicts on the recidivism allegations, a sentencing hearing was scheduled for February 23, 2006. On that date, defendant refused to appear in court. Defense counsel declared a doubt as to his client’s competency and the court suspended proceedings. Another psychiatrist, Dr. Marshall S. Cherkas, was appointed to examine defendant. At the April 26, 2006 competency hearing, the defense relied on the report of Dr. Cherkas, dated April 3, 2006, along with defense counsel’s prior representations as to defendant’s behavior.
Counsel subsequently added that that defendant’s post-verdict behavior in repeatedly refusing to meet with Dr. Cherkas, tended to show that defendant was unable to assist in his defense. In his report, Dr. Cherkas stated that he had made numerous attempts to meet defendant, but defendant refused.
In his report, Dr. Cherkas did not reach a final opinion as to defendant’s competency to stand trial. He explained that defendant was largely uncooperative during his interview of April 1, 2006. The psychiatrist found defendant to be “intellectually knowledgeable about court procedures.” Although defendant “probably does have a mental illness,” Dr. Cherkas noted, “it is mostly his negativism that is making him difficult in terms of cooperation with counsel.” The crucial question to Dr. Cherkas was whether defendant’s mental illness was the cause of his lack of cooperation with counsel. The psychiatrist concluded that it was and that defendant required medication, preferably administered in a psychiatric hospital. The trial court, however, found the Cherkas report unpersuasive and concluded that defendant was mentally competent. At the time of sentencing, the court reemphasized that defendant’s demeanor during trial was indicative of his mental competence. Even when defendant behaved erratically following the jury verdict, the court found defendant “appear[ed] to know what was going on.”
Due Process Challenge to Competency Determination
Defendant contends the trial court’s misreading of Dr. Markman’s report rendered its competency determination so unreliable as to violate defendant’s due process rights. The record shows—and the parties agree—that in making its pretrial competency evaluation, the court erroneously asserted that Dr. Markman had failed to opine on the ultimate issue of competency, when in fact his report determined that defendant was mentally incompetent. As we explain, because the issue of defendant’s competency was so closely contested—with Dr. Sharma finding defendant’s competency marginal and the state hospital’s certification cautioning that defendant was liable to lose his competency over time—and because an accurate understanding of Dr. Markman’s evaluation was critical to making reliable competency evaluation, we cannot be confident that the pretrial competency hearing comported with fundamental fairness.
It is well established that the criminal trial of a mentally incompetent person violates due process. (Cooper v. Oklahoma (1996) 517 U.S. 348, 354; People v. Lewis (2006) 39 Cal.4th 970, 1047.) Mental competence requires that defendant be able to understand the nature of the legal proceedings and assist counsel in conducting a defense in a rational manner. Due process necessitates a full competency hearing when the accused presents substantial evidence of incompetence. (See ibid.; § 1367.) Here, of course, the trial court complied with that procedural aspect of due process by suspending proceedings and holding a pretrial competency hearing upon defense counsel’s declaration of a doubt as to defendant’s mental competency. Further, the hearing itself was conducted in accordance with the Penal Code’s procedural requirements. (Cf., People v. Hale (1988) 44 Cal.3d 531, 539 [recognizing the requirement that trial courts employ procedures to protect against the trial of an incompetent defendant], citing Pate v. Robinson (1966) 383 U.S. 375, 377; Drope v. Missouri (1975) 420 U.S. 162, 171.)
As our Supreme Court has cautioned, due process requires more than mere facial compliance with procedural guidelines. Even in the context of probation applications, where a defendant is not entitled to the full panoply of due process protections applicable during trial, a defendant remains entitled to relief on due process grounds if the hearing procedures are fundamentally unfair. (People v. Peterson (1973) 9 Cal.3d 717, 726; People v. Arbuckle (1978) 22 Cal.3d 749, 754-755.) As our colleagues in the Fifth District recently explained: “‘Reliability of the information considered by the court is the key issue in determining fundamental fairness’ in this context. (People v. Arbuckle[, supra, 22 Cal.3d at pp.] 754-755.) A court’s reliance, in its sentencing and probation decisions, on factually erroneous sentencing reports or other incorrect or unreliable information can constitute a denial of due process. In Townsend v. Burke (1948) 334 U.S. 736, 741, a defendant ‘was sentenced on the basis of assumptions concerning his criminal record which were materially untrue.’ This was ‘inconsistent with due process of law’ and required reversal.’” (People v. Eckley (2004) 123 Cal.App.4th 1072, 1080; see also People v. Tang (1997) 54 Cal.App.4th 669, 680 [“It would have been a denial of due process for the court itself to have misread an underlying report so as to rely upon an erroneously exaggerated criminal history”].) The necessity of insuring fundamental fairness applies with particular force in connection with the substantive due process proscription against subjecting the mentally incompetent to criminal trial.
At the same time, however, “[t]he mere presence of erroneous sentencing information in the record does not require reversal; such information becomes constitutionally significant only if the sentencing court relies upon it.” (People v. Tang, supra, 54 Cal.App.4th at p. 678.) That is, due process does not mandate a new hearing whenever “a sentencing court bases its determination on a factual premise which later turns out to be erroneous.” (People v. Ruiz (1975) 14 Cal.3d 163, 168.) Rather, the mistake must be material. For instance, in the probation context, when a court’s determination is based “in significant part upon an erroneous impression of the defendant’s legal status, fundamental fairness requires that the defendant be afforded a new hearing and ‘an informed, intelligent and just decision’ on the basis of the facts.” (Ibid.)
Here, the busy trial court inadvertently misread Dr. Markman’s report in a fashion that had a reasonable likelihood of prejudicing defendant. Both reports supporting a competency finding had important qualifiers. Dr. Sharma found defendant’s competency only marginal and cautioned that defendant’s low intelligence by itself would pose difficulties in attorney/client relations. Similarly, Dr. Gnanamuthu’s report, issued in connection with defendant’s competency certification, cautioned that a “speedy trial is important for maintenance of trial competency.” The certification was based on an August 16, 2005 meeting with the state hospital treatment team; however, the trial court made its competency determination at the December 7 hearing, almost four months later, when defendant’s mental condition had apparently deteriorated.
Weighing against competency, apart from Dr. Markman’s report, were defendant’s history of mental illness, Dr. Fischer’s report, which was corroborated by the medical staff at the state hospital, and defense counsel’s contemporaneous observations of defendant’s erratic behavior and inability (or refusal) to assist defense counsel. In that context, the trial court’s mistaken belief that Dr. Markman expressed no opinion as to defendant’s competency cannot be viewed as inconsequential. Due process requires a new hearing, in which Dr. Markman’s conclusion that defendant was unfit to stand trial is given due consideration and is assessed along with all the other pertinent information reflecting on defendant’s incompetence to stand trial.
The record shows that the trial court maintained and referred to its erroneous understanding of Dr. Markman’s report during the second competency hearing, until defense counsel corrected it.
We are aware that in connection with the second competency hearing, the trial court explained that its finding of competency as to the impending prior convictions trial was based primarily on its observations of defendant during the underlying trial. However, those observations and findings do not support a clear retrospective finding of competency. Indeed, the court may have interpreted defendant’s conduct differently if it had the benefit of an accurate understanding of Dr. Markman’s mental health evaluation.
As the record discloses the court’s determination was based upon a mistaken premise concerning a key evidentiary factor in a closely contested matter, we find the pretrial competency hearing failed to comport with due process of law. (See Townsend v. Burke, supra, 334 U.S. at p. 741; People v. Eckley, supra, 123 Cal.App.4th at p. 1080.) This is not a case like People v. Tang, supra, 54 Cal.App.4th 669, in which the record made it clear that the sentencing court was aware of the factual errors and inconsistencies in a diagnostic report submitted in connection with the hearing, which supported the reasonable inference that it relied on other, reliable information in making its sentencing determination. (Id. at pp. 677-678.)
We turn to the question of disposition. As stated in People v. Minor (1980) 104 Cal.App.3d 194, 199: “In its disposition of a criminal case the appellate court is not limited to the more common options of affirmance, reversal or modification of the judgment or order appealed from. The court ‘may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances’ (Pen. Code, § 1260).” In Minor, the trial court’s error was its failure to conduct a Marsden hearing. “[When the trial is free of prejudicial error and the appeal prevails on a challenge which establishes only the existence of an unresolved question which may or may not vitiate the judgment,” the appropriate disposition is to reverse the judgment, remand to the trial court for a Marsden hearing, and then to reinstate the judgment if the Marsden motion is denied. (People v. Minor, supra, 104 Cal.App.3d at p. 199, approved in People v. Hall (1983) 35 Cal.3d 161, 170, followed in People v. Olivencia (1988) 204 Cal.App.3d 1391, 1401; People v. Maese (1985) 168 Cal.App.3d 803, 808-810.) In the circumstances presented here, a limited remand is appropriate to enable the trial court to conduct a full and fair competency hearing. (See People v. Robinson (2007) 151 Cal.App.4th 606, 616-617 [remand for retrospective competency hearing]; People v. Ary (2004) 118 Cal.App.4th 1016, 1025-1028 [same].)
People v. Marsden (1970) 2 Cal.3d 118.
The evidence to be considered at the hearing upon remand shall be limited to that in existence at the time of the December 7, 2005 hearing. Subsequent reports or conduct by defendant shall not be considered at the hearing. Nothing in this opinion should be construed as indicating how the trial court should weigh the evidence or resolve the issue of competency to stand trial.
Sufficiency of Evidence As to Competency
Defendant also contends there was insufficient evidence to support the court’s pretrial and presentencing findings of competency. We need not further address the sufficiency of the evidence as to the pretrial hearing in light of our reversal of that portion of the judgment and remand for additional proceedings. We turn to the sufficiency of the evidence as to the presentencing competence determination.
Section 1369, subdivision (f), “establishes a presumption that the defendant is competent, and the party claiming incompetence bears the burden of proving that the defendant is incompetent by a preponderance of the evidence.” (Medina v. California (1992) 505 U.S. 437, 440; People v. Marshall (1997) 15 Cal.4th 1, 31.) “In reviewing a jury verdict that a defendant is mentally competent to stand trial, an appellate court must view the record in the light most favorable to the verdict and uphold the verdict if it is supported by substantial evidence. [Citation.] Evidence is substantial if it is reasonable, credible, and of solid value. [Citations.]” (People v. Marshall, supra, 15 Cal.4th at p. 31; People v. Samuel (1981) 19 Cal.3d 489, 505 [same]; People v. Hightower (1996) 41 Cal.App.4th 1108, 1111 [“On appeal a finding of competency to stand trial ‘cannot be disturbed if there is any substantial and credible evidence in the record to support the finding.’ [Citation.]”].)
At the time of the presentencing finding of competence, the evidence before the trial court included the court’s own observations of defendant during trial, along with the report by Dr. Cherkas. Defendant argues the trial court’s observations and conclusions are not entitled to evidentiary weight because in making its findings, the court mentioned only defendant’s understanding of the criminal proceedings, not his ability to assist counsel. We disagree with defendant’s assertion that the trial court misunderstood the two-part standard for competence. The record supports the contrary inference based on the parties’ arguments, the experts’ submissions, and the court’s invocation of section 1368—all of which implicated both aspects of the competency test. Further, due to defense counsel’s specific objections and observations, the question of defendant’s ability to cooperate was made paramount to the court. As there is nothing in the record to indicate the court misunderstood the relevant legal standard, we find its competency determination implicitly covered both aspects of the section 1368 standard.
Accordingly, Dr. Cherkas’s report was not the only evidence before the trial court, nor did it require a finding that the presumption of competence was overcome. The trial court expressly based its finding of competency on its observations of defendant. It was not obligated to accept Dr. Cherkas’s opinion when it conflicted with the court’s observations. The court made detailed, reasonable findings that defendant understood the legal implications of the proceedings and that his failure to cooperate was volitional. We find People v. Hightower, supra, 41 Cal.App.4th at page 1112 on point: “Appellant asserts that his disruptive behavior in the courtroom and disputes with defense counsel prove that he was not competent to stand trial. His conduct demonstrates an unwillingness to cooperate with defense counsel but does not constitute proof of mental incompetence. ‘[T]he test, in a section 1368 proceeding, is competency to cooperate, not cooperation.’ [Citation.] Thus, the conduct of appellant did not rebut the presumption of mental competence to stand trial.”
Refusal to Suspend Proceedings Following Guilty Verdict
Based on the same arguments presented above, defendant argues the trial court was required to hold a second competency hearing in response to defendant’s erratic behavior and defense counsel’s evaluation thereof after the guilty verdict was read. We find no merit in this contention.
When, as here, “a competency hearing has already been held and the defendant has been found competent to stand trial . . . a trial court need not suspend proceedings to conduct a second competency hearing unless it ‘is presented with a substantial change of circumstances or with new evidence’ casting a serious doubt on the validity of that finding. [Citations.]” (People v. Jones (1991) 53 Cal.3d 1115, 1153.) Other than defendant’s “erratic behavior” after the verdict—behavior the trial court reasonably found not indicative of a breakdown in mental competence—there were no changed circumstances. The negative behavior described by defense counsel was in keeping with the kinds of behaviors defendant exhibited to Drs. Markman and Sharma (as well as to defense counsel) prior to trial. “[D]efendant 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.)
Based on its observation of defendant’s behavior throughout the trial and on the two reports opining that defendant was competent—albeit difficult to work with—the trial court found defendant’s outburst did not cast doubt on his ability to understand the proceedings or to assist counsel. Of course, “the mere presence of a mental illness does not mean appellant was unable to understand the proceedings or assist in his own defense. [Citation.]” (People v. Smith (2003) 110 Cal.App.4th 492, 502.)
As the trial court noted, defendant presented himself appropriately to the jury at all times during trial, and waited until the jury had left the courtroom before launching into his outburst. Just prior to the verdict, defendant expressed himself coherently and rationally in response to the trial court’s questioning. We find the court reasonably concluded that defendant was acting out and understood the nature of the proceedings. (See, e.g., People v. Davis (1995) 10 Cal.4th 463, 527-528.) Recognizing that the trial court was in a better position to assess whether defendant was merely being obstreperous or feigning incompetence, we defer to its findings. (See People v. Danielson (1992) 3 Cal.4th 691, 727, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069.) “‘An appellate court is in no position to appraise a defendant’s conduct in the trial court as indicating insanity, a calculated attempt to feign insanity and delay the proceedings, or sheer temper.’ [Citations.]” (People v. Danielson, supra. 3 Cal.4th at p. 727 .)
The judgment is reversed and remanded to the trial court with directions to vacate its order dated December 7, 2005, finding defendant competent to stand trial pursuant to section 1369. The trial court shall hold a new hearing on the issue of defendant’s competency to stand trial, limited to a full consideration of the relevant evidence as it existed on December 7, 2005. If the trial court finds defendant incompetent, the judgment shall remain reversed and further proceedings shall be conducted in accordance with section 1370. If the trial court finds defendant competent, it shall reinstate the judgment.
I concur: ARMSTRONG, Acting P. J.
MOSK, J., Concurring and Dissenting
I concur in the reversal, but dissent as to the remand direction.
It seems to me that the disposition requires, in essence, a retrospective competency hearing, which is not favored (Pate v. Robinson (1966) 383 U.S. 375, 387; Drope v. Missouri (1975) 420 U.S. 162, 183), although in some instances may be constitutionally permitted. (See People v. Robinson (2007) 151 Cal.App.4th 606; People v. Ary (2004) 118 Cal.App.4th 1016, 1027-1028; cf. People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 67.) I would reverse the conviction unconditionally because of the difficulties of such a retrospective competency hearing in this case. Also, I do not see why the correct reading of the Markman opinion would not have played some role in the presentencing competency determination. On the bare record, defendant’s competency was very much in doubt at all times.
I would reverse the judgment.