Opinion
A165061
08-04-2023
THE PEOPLE, Plaintiff and Respondent, v. MALIK DOSOUQI, Defendant and Appellant.
NOT TO BE PUBLISHED
(San Mateo County Super. Ct. No. 19-SF-008180-A)
Miller, J.
Defendant Malik Dosouqi was found incompetent to stand trial and committed to a state hospital for treatment. The hospital later certified that defendant was mentally competent, and, following a trial on the issue, the trial court found defendant competent and reinstated criminal proceedings. Defendant was convicted of two counts of murder with the special circumstance of lying in wait and was sentenced to life in prison without the possibility of parole.
Defendant contends the trial court erred in finding he was restored to competency and, alternatively, the convictions must be reduced to second degree murder because the trial court did not enter the degree on the verdicts. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Finding of Incompetence and Commitment
In June 2019, the San Mateo County District Attorney filed a felony complaint charging defendant with two counts of murder. In November 2019, the trial court found defendant not competent to stand trial. The court ordered defendant committed to Napa State Hospital for the care and treatment of his mental illness and to restore his competency.
In May 2020, Napa State Hospital submitted a report to the court pursuant to Penal Code section 1370. The report, prepared by Dr. Danica McDonough, concluded defendant was "not yet" competent but there was a substantial likelihood he would "achieve trial competence in the foreseeable future."
When a defendant is committed to a Department of State Hospitals facility due to mental incompetence to stand trial, Penal Code section 1370, subdivision (b)(1), requires the medical director of the facility to "make a written report to the court . . . concerning the defendant's progress toward recovery of mental competence . . ." within 90 days after the commitment. Here, defendant was admitted to the hospital on March 3, 2020. Further undesignated statutory references are to the Penal Code.
Competency Trial and Finding of Competence
On August 28, 2020, Napa State Hospital filed a certificate of defendant's mental competency pursuant to section 1372 along with a report prepared by Dr. McDonough.
A two-day hearing on competency was held in May 2021. Defense counsel called two witnesses who saw defendant during his first two-and-a-half months at the hospital. The prosecution called a witness who evaluated defendant after he had been at the hospital for more than five-and-a-half months.
Defense Witnesses
Dr. Miranda DeWitte, a staff psychologist in the admission unit at Napa State Hospital, saw defendant from early March to May 14, 2020, when defendant was transferred out of the admission unit to the long-term unit of the hospital. She explained there are two prongs to mental competence to stand trial: "[1] the understanding of legal proceedings and [2] the ability to assist counsel in a rational manner." DeWitte assessed defendant twice, first on March 3, 2020, and again in mid-April 2020. Defendant always demonstrated an understanding of the proceedings and charges against him, but in both assessments, DeWitte determined that defendant was unable to rationally assist his attorney. She also believed defendant had poor insight into his psychiatric illness. During the time defendant was in the admission unit, defendant was rigid regarding defense strategy, guarded and unwilling to disclose information about his criminal case, and he had an "intense stare." In cross-examination, DeWitte agreed that defendant received training and education to help him regain competency during his hospital stay and that it was "not uncommon" for an incompetent defendant to become competent after receiving training at the hospital. She testified that competency was fluid and "can always change."
A defendant is mentally incompetent to stand trial "if, as a result of a mental health 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).)
Dr. Farah Pathan is a psychiatrist in the admission unit at Napa State Hospital. Defendant was under her care for his first two-and-a-half months at the hospital. Based on his medical history (but not her clinical observation), Pathan diagnosed defendant with bipolar disorder type I, "most recent manic episode with psychotic features." Previously, defendant had been recommended a mood stabilizer, and Pathan ordered the medication, but defendant refused to take it. While he was in the admission unit, it was Pathan's opinion that defendant was unable to assist counsel. Defendant told her he did not remember the day of his arrest, and he was not able to discuss potential evidence against him that was described in police reports. Pathan saw defendant about six times, and his affect was consistently blunt. Patients complained that defendant was "disruptive at night, standing over naked in his room and washing his genitals in the sink." According to Pathan, defendant would deny the behaviors, but they were "happening on a regular basis." Pathan called these behaviors "disorganized" and explained disorganized behavior can be a symptom of schizophrenia. In crossexamination, Pathan testified, "we did not see any symptoms" of bipolar disorder while defendant was in the admission unit. Pathan neither observed nor was made aware of defendant having any psychotic episodes at any time in his hospital stay, but his medical records indicated that defendant displayed symptoms when he was hospitalized in 2018 and 2019. Pathan testified defendant did not go through specific training to restore him to competency during the time she worked with him at the hospital.
Pathan reviewed medical records from "his previous presentation in the community," and defendant had "a history of extreme mood swings, depression, suicidal and homicidal thoughts, aggression in the community, hypersexual behavior, extreme mood irritability," symptoms consistent with bipolar disorder type I. The records also showed defendant previously had auditory and visual hallucinations and paranoia (the "psychotic features"). However, Pathan testified that, while he was in the admission unit, defendant did not experience any overt psychosis, mood instability, or aggression.
There was no bathroom or sink in defendant's room; he used a shared bathroom that had four or five sinks. Defendant told Pathan he had to wash his genitals after using the bathroom because he was Muslim. The hospital provided him a water pitcher so he could wash himself privately. According to Pathan, defendant used the pitcher a few times, but he would revert to washing himself in a sink where other patients using the bathroom could see him. There was also a report that his roommate woke up and was scared because defendant was standing naked close to his bed. It is not clear from the testimony whether this type of behavior was reported more than once.
Prosecution Witness
Dr. McDonough is a senior psychologist specialist in the forensic services division at Napa State Hospital. She evaluates patients who have been found incompetent to determine whether they have been restored to competency at the hospital. McDonough evaluated defendant twice. The first time, she met with defendant on May 12, 2020, when defendant was still residing in the admission unit. At that time, McDonough found defendant understood the nature of the criminal proceedings, but she did not believe he was able to rationally assist counsel in the conduct of a defense. Discussing his criminal case, defendant told McDonough he was being set up and the evidence was being tampered with, which McDonough characterized as "present[ing] with paranoid ideation about the facts of the case." She recommended further treatment at the hospital.
The second time McDonough met defendant was on August 25, 2020, after he had been in the long-term unit for over three months. In the longterm unit, defendant met individually with a psychologist with the goal of being able to talk about his case in terms of the evidence and legal defense strategy. In her second evaluation, McDonough found defendant competent to stand trial. She reported that, while his affect was generally flat, defendant smiled a couple times in an appropriate way, and he displayed "a very linear and coherent thought process." McDonough described several changes in defendant since their initial meeting. First, defendant no longer expressed paranoid ideation about the evidence in his case; he no longer believed he was being set up or that the evidence was being tampered with. Second, defendant was "more flexible in his thinking and was able to recognize that the evidence could potentially lead to him being found guilty." (In May 2020, defendant had been "pretty adamant that . . . there was no way the evidence could . . . prove his guilt.") Third, he was "able to consider the risks of his legal strategy." Although defendant was "rigid and inflexible in the way that he wanted to present his defense," he now recognized the risks of going to trial and that he could be convicted and sentenced to life in prison. McDonough also found that defendant demonstrated a new willingness and ability to cooperate with defense counsel. She noted that defendant "talked a lot about inconsistencies-that was his word that he used, inconsistencies- that he found in the police reports," "in a way that was not paranoid," and, instead appeared "very rational" to McDonough.
In cross-examination, McDonough testified that, during her August 2020 meeting with defendant, she did not challenge him about the facts of the police reports, and she conceded it was possible the inconsistencies defendant talked about were "made up." Defendant did not give McDonough many "specifics" about the inconsistencies, and "he did come across at times as someone who did not want to talk very openly about information with [her]." (McDonough added that defendant "expressed considerable willingness to do so with his attorney," and her focus was on whether "he could work with his attorney to evaluate the evidence," not whether he was willing to talk about the case openly with her.) In the report she prepared in August 2020, McDonough reported that defendant's medical history indicated he was "capable of presenting himself as psychiatrically stable despite experiencing psychotic symptoms" and it appeared defendant "may experience psychotic episodes with periods of stability." She also reported that a nurse had observed defendant speaking to himself in another language, smiling and laughing to himself, pacing the halls, gesturing at the open space, counting his steps, and cleaning himself excessively, although he denied auditory or visual hallucinations. Defendant denied that he had a mental illness, but he told McDonough he had been diagnosed with bipolar disorder in the past and he had been hospitalized for mental health issues three times. McDonough's conclusion that defendant could rationally assist counsel was not "a close call."
At the close of testimony, defense counsel argued there was no change in how defendant presented from March through August 2020, except for "one difference, that there was less or no paranoid ideation," and this was "not sufficient to remove" the court's earlier finding that defendant was incompetent. Defense counsel did not argue that McDonough's assessment was stale or too remote to support finding defendant was competent to stand trial.
The trial court found defendant failed to meet his burden to show incompetence by a preponderance of the evidence. The court noted that, although there was evidence defendant had bipolar disorder and the condition is not curable, "defendant has been at Napa for a good part of a year, and he has not presented with any mania or any other types of symptoms that would indicate his bipolar disease is acting up or interfering in his thought processes." The court found defendant was restored to competency and reinstated the criminal proceedings.
Criminal Proceedings
In October 2021, the district attorney filed an information charging defendant with two counts of murder (§ 187, subd. (a)). As to both counts, it was alleged defendant intentionally killed the victim by means of lying in wait (§ 190.2, subd. (a)(15)), personally used a deadly and dangerous weapon, a knife (§ 12022, subd. (b)(1)), and personally inflicted great bodily injury (§§ 12022.7, 1203.075, subd. (a)). The special circumstance of multiple murders was also alleged. (§ 190.2, subd. (a)(3)).
The facts underlying the crimes are not relevant to this appeal. Suffice it to say that on two successive evenings, defendant lured unwitting victims (a taxi cab driver one night and a tow truck driver the next) to remote locations in the deserted hills in San Mateo County where he was lying in wait and stabbed them to death.
Defendant waived his right to a jury. Following trial, the trial court found defendant guilty of both counts and found all special circumstance, enhancement, and probation-prohibition allegations true. Defendant was sentenced to life in prison without the possibility of parole for each count.
DISCUSSION
A. The Competency Determination
Both due process and state law prohibit the state from trying criminal defendants while they are mentally incompetent. (People v. Bloom (2022) 12 Cal.5th 1008, 1030.) The procedures governing inquiry into mental competence of criminal defendants are set forth in sections 1367 through 1376. (People v. Rells (2000) 22 Cal.4th 860, 865 (Rells); McKneely v. Superior Court of Contra Costa County (2023) 91 Cal.App.5th 1232.)
Under section 1370, subdivision (a)(1)(B)(i), when a defendant is found mentally incompetent, "[t]he court shall order that the . . . defendant be delivered . . . to a State Department of State Hospitals facility, . . . or to any other available public or private treatment facility . . ., that will promote the defendant's speedy restoration to mental competence, or placed on outpatient status ...."
Under section, 1372, subdivision (a)(1), if the state hospital "determines that the defendant has regained mental competence, the [hospital] director or designee shall immediately certify that fact to the court by filing a certificate of restoration with the court ...." "Upon the filing of a certificate of restoration to competence, the court shall order that the defendant be returned to court ...." (§ 1370, subd. (a)(1)(C).)
At a hearing on the defendant's recovery of mental competence after a certificate of restoration has been filed, the presumption is that the defendant is mentally competent. (Rells, supra, 22 Cal.4th at pp. 867-868.) The burden of proof is on the party claiming otherwise to prove the defendant is mentally incompetent by a preponderance of the evidence. (Ibid.)
We review the trial court's determination that defendant is competent to stand trial for substantial evidence. (People v. Mendoza (2016) 62 Cal.4th 856, 871.)
Here, we have no difficulty concluding Dr. McDonough's testimony provides substantial evidence supporting the court's competency determination. (See, e.g., People v. Mendoza, supra, 62 Cal.4th at p. 878 [a qualified expert's opinion that the defendant was competent was substantial evidence of that finding, despite "considerable evidence of incompetency"].) There was no dispute that defendant understood the nature of the criminal proceedings. The defense witnesses' only concern was defendant's ability to assist defense counsel. McDonough answered that concern by describing the improvement she observed in defendant in August 2020 compared to his presentation in May 2020. Moreover, her testimony regarding the changes in defendant's view of the evidence, his understanding of the risks of going to trial, and his ability to work with defense counsel was uncontradicted as no other witness observed defendant after May 2020.
On appeal, defendant argues McDonough's evaluation failed to show his present ability to assist counsel because it was conducted nine months before the hearing on restoration of competence. This argument is not persuasive because it ignores the presumption of competence. It was defendant's burden to prove incompetence, not the prosecution's burden to establish competence; yet the most recent evidence regarding defendant's mental state showed that he had regained mental competency.
Defendant relies on People v. Jackson (2018) 22 Cal.App.5th 374 (Jackson), but the facts of that case are very different. There, defendant Jackson was found incompetent and committed to Patton State Hospital (Patton). After Jackson was hospitalized, "numerous psychologists found him incompetent to stand trial and unlikely to be restored to competency because he suffer[ed] from a stable developmental disability-mild mental retardation-which limit[ed] his capacity for understanding and communication." (Id. at p. 376, italics added.) In June 2009, Patton filed a report with the court stating that Jackson was" 'unable to accurately complete even simple tasks, such as reciting the alphabet'" and concluding there was no substantial likelihood he would regain competency in the foreseeable future. (Id. at p. 379.) In September 2009, the hospital reported the same conclusions. (Id. at p. 380.) But in February 2010, Patton certified that Jackson had regained competency. (Id. at p. 382.)
The hospital reported "staff drilled Jackson in 'intense individual and group treatment sessions to increase his knowledge of judicial terminology and procedures'" and "he has now 'demonstrated adequate though rudimentary understanding of court processes . . . [and] is likely able to navigate the court process with increased support from his lawyer.'" (Jackson, supra, 22 Cal.App.5th at pp. 382-383) The same report, however, acknowledged that "Jackson' "has a poor understanding of the factual information regarding the adversarial nature of the courtroom.... does not appear to have a rational appreciation of the charges against him ...." '" (Id. at p. 382.)
The trial court found Jackson competent in February 2010, and he entered a guilty plea the same month. (Jackson, supra, 22 Cal.App.5th at pp. 382, 384.) But after the plea, a psychologist, Dr. Kania, "raised significant problems with the finding that Jackson was competent in the first place," noting that Jackson did not seem to understand that he had entered a guilty plea. (Id. at p. 386.) The trial court suspended criminal proceedings, and in July 2010, another psychologist, Dr. Leeb, evaluated Jackson and concluded he was not competent because of a developmental disorder and further," '[Jackson] will never be competent'" because there were no effective treatments and his condition was permanent and stable. (Id. at p. 387, italics added.) In December 2010, Patton submitted another report finding Jackson competent, but the report duplicated almost verbatim the report from February 2010 and "did not address the fact that every other evaluation of Jackson found him to be incompetent." (Id. at pp. 388-390.) The trial court again found Jackson competent in August 2011. (Id. at p. 390.)
On that evidentiary record, the Court of Appeal in Jackson concluded no substantial evidence supported either of the trial court's findings of mental competence. (Jackson, supra, 22 Cal.App.5th at p. 382.) The court found the hospital's February 2010 report did not supply substantial evidence for the trial court's February 2010 order, explaining: "It was the unanimous opinion of all the professionals who evaluated Jackson that he suffers from mild mental retardation which severely limits his ability to understand the charges against him, the legal proceedings he faced, and his capacity to rationally assist his attorney. The same professionals, including staff at Patton, concluded repeatedly-over three years-that Jackson's condition was chronic and would not improve with treatment....[¶] Patton staff did not directly address the substance of these opinions. Instead, they decided to put Jackson through drills aimed at teaching him the rudiments of the judicial system....We conclude the evidence that Patton staff drilled Jackson in how to answer the most basic questions about the judicial process and he learned to parrot the expected responses after numerous repetitions did not provide substantial evidence Jackson was competent to stand trial." (Id. at pp. 394-395, italics added.)
The Jackson court also found that Patton's December 2010 report did not support the trial court's August 2011 competency finding, noting the December 2010 report "simply repeated the analysis contained" from the February 2010 report and, "[t]hus, the trial court's evidentiary basis for finding Jackson competent in August 2011 came from an analysis prepared nearly 20 months earlier." (Jackson, supra, 22 Cal.App.5th at p. 393.) The court elaborated on the infirmities of the report: "Dr. Kania and Dr. Leeb specifically opined Jackson would never 'regain' competency because his incompetency stems from chronic and stable mental retardation. To be 'of solid value' and therefore constitute substantial evidence, any report reaching a contrary conclusion would at minimum have to address those criticisms and explain why hospital staff had come to a different result.... [On the record before it], the trial court had every reason to conclude Jackson remained incompetent, and no solid basis for concluding otherwise." (Id. at p. 394.)
Defendant cites Jackson for the court's observation that, because the hospital's report was based on a 20-month-old analysis, "Patton staff failed to provide the trial court with solid, reliable evidence of Jackson's competence as of August 2011." (Jackson, supra, 22 Cal.App.5th p. 393.) But Jackson is easily distinguishable. Here, no expert opined that defendant's incompetence was due to a stable, unchangeable condition or that he was unlikely to regain competence. In fact, the defense evidence was to the contrary. Dr. Pathan testified that, although defendant had a history of extreme mood swings, aggression, hallucinations, and paranoia, he displayed no such symptoms while under her care. In the context of psychiatric illness (not developmental disability), Dr. DeWitte testified it was "not uncommon" for an incompetent defendant to become competent after receiving training at the hospital, and neither Pathan nor DeWitte suggested defendant was unlikely to improve with treatment. Further, the Jackson court found the hospital's reports were insubstantial because they did not explain why staff had changed their own opinion to reach a conclusion that contradicted every other psychologist who evaluated Jackson. (Id. at p. 394.) But in the present case, Dr. McDonough cogently explained why she changed her opinion, providing concrete examples of defendant's changes in attitude about the evidence, the risks of going to trial, and working with defense counsel.
In sum, we conclude the trial court's competency finding in this case was supported by substantial evidence, and we reject defendant's argument that McDonough's evaluation was too stale to be of evidentiary value.
B. The Degree of Murder
Defendant was convicted after a court trial. The trial court read its verdict on count 1, "In the matter at Count 1, Penal Code section 187(a), the court finds the defendant guilty of Count 1. [¶] The court finds that the allegation alleged pursuant to Penal Code section 190.2(a)(15), special circumstance murder by lying in wait, to be true...." Likewise, for count 2, the court stated, "On Count 2, violation of Penal Code section 187(a), a felony, the court finds the defendant guilty. [¶] As it relates to that count, enhancement No. 1, Penal Code section [190.2](a)(15), special circumstance murder by lying in wait, the court finds that allegation to be true...."
The trial court also found all other special allegations true.
Defendant argues the trial court's failure to enter a degree on the murder verdicts requires that we reduce the convictions to second degree murder. We disagree.
Defendant relies on section 1157, which provides, "Whenever a defendant is convicted of a crime or attempt to commit a crime which is distinguished into degrees, the jury, or the court if a jury trial is waived, must find the degree of the crime or attempted crime of which he is guilty. Upon the failure of the jury or the court to so determine, the degree of the crime or attempted crime of which the defendant is guilty, shall be deemed to be of the lesser degree."
As explained in People v. Jones (2014) 230 Cal.App.4th 373, cited by defendant, section 1157's requirement that the degree of a crime be determined may be satisfied in either of two ways:" '(1) by a finding that specifically refers to the degree of the crime by its statutory numerical designation; [or] (2) by findings that encompass the statutory factual predicates of the degree of the crime.'" (Id. at p. 377.)
People v. San Nicolas (2004) 34 Cal.4th 614 (San Nicolas) illustrates how section 1157 may be satisfied by factual findings that encompass the statutory factual predicates of the degree of the crime. In that case, the jury found the defendant guilty of two counts of murder in violation of section 187, and the verdict forms did not expressly designate the murders as "first" or "second" degree. But for each count, the jury found the defendant did" 'act willfully, deliberately, and with premeditation.'" (Id. at p. 634.)
The California Supreme Court found no violation of section 1157 even though the verdicts did not identify the degree of murder by number. Our high court explained, "In the verdict form itself, the jury made the specific finding that defendant, in committing the murders, 'did act willfully, deliberately, and with premeditation.' This is tantamount to a finding of first degree murder in the verdict form itself and section 1157 is therefore not implicated." (San Nicolas, supra, 34 Cal.4th at p. 635.) This is because murder perpetrated by "willful, deliberate, and premediated killing" is defined by section 189 as "murder of the first degree." (§ 189, subd. (a).)
Defendant asserts the trial court's verdicts in this case "specified no finding encompassing the factual predicates of first-degree murder." This is not correct. Section 189 defines "[a]ll murder that is perpetrated by means of . . . lying in wait" as murder of the first degree. Here, as to each murder count, the trial court expressly found that defendant committed the murder by lying in wait under section 190.2, subdivision (a)(15) (special circumstances murder). This means the court found defendant perpetrated each murder by means of "lying in wait" as the phrase is used in section 189. (See People v. Flinner (2020) 10 Cal.5th 686, 748 [the lying-in-wait special circumstance of section 190.2 includes the elements of first degree lying-inwait murder under section 189, with the additional element that the killing was intentional].) This finding, in turn, is "tantamount to a finding of first degree murder in the verdict . . . itself." (San Nicolas, supra, 34 Cal.4th at p. 635.) In other words, the verdicts in this case satisfy section 1157 because the trial court's findings that the murders were committed by lying in wait" 'encompass the statutory factual predicates of'" murder of the first degree. (People v. Jones, supra, 230 Cal.App.4th at p. 377.)
In a federal habeas corpus proceeding applying California law, the district court reached the same conclusion. Franklin v. Warden, Mule Creek State Prison (E.D.Cal. 2014) 2014 WL 7433752, at *105-106, affd. sub nom. Franklin v. Kernan (9th Cir. 2016) 646 Fed.Appx. 553. In Franklin, the jury did not specify the degree of murder but found true the lying-in-wait special circumstance. The district court rejected the defendant's section 1157 claim, stating that there are no degrees of lying-in-wait murder. By definition, lying-in-wait murder is first degree murder.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Stewart, P.J. Richman, J.