Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. BB619412
RUSHING, P.J.
Defendant Anthony Ray McFarland appeals an order finding him not competent to stand trial. Defendant asserts on appeal the trial court erred in not appointing a second expert to evaluate his competence, the evidence was insufficient to support the trial court’s finding of incompetence, and the trial court erred in not appointing a second defense attorney to represent defendant in the competence proceedings.
The underlying facts of this case are not included because they are not relevant to the issues presented on appeal.
In early 2006, defendant was charged with two felony counts of making threats to commit a crime resulting in death or serious body injury (Pen. Code, § 422).
At defendant’s first appearance in court on March 14, 2006, a deputy alternate defender declared a doubt as to defendant’s competence to stand trial pursuant to Penal Code section 1368, stating that defendant was “unable to cooperate with counsel.” Defendant then asked the court to relieve his attorney or to have a Marsden motion. The trial court told defendant that the matter was set for the following week, he would have another attorney to represent him at that time, and defendant should raise the issue then. The court certified the case to the jurisdiction of the superior court, suspended criminal proceedings and set the matter for determination of the issue of defendant’s competence.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
The next week, on March 22, 2006, another deputy alternate defender appeared with defendant. The court appointed Dr. David Echeandia to examine defendant for competence, and continued the case for receipt of the doctor’s report.
Shortly thereafter, on April 19, 2006, the court noted defendant refused to meet with Dr. Echeandia. The court asked defendant if he was aware of the importance of meeting with Dr. Echeandia, to which defendant did not reply. The court ordered defendant to meet with Dr. Echeandia.
On May 10, 2006, defense counsel informed the court that defendant again refused to meet with Dr. Echeandia, and as a result, the doctor was unable to render an opinion as to defendant’s competence. Defense counsel also told the court defendant refused to meet with or cooperate with him as well.
In July 2006, the court re-referred the matter to Dr. Echeandia to review defendant’s medical records to make a competence evaluation.
On September 14, 2006, Dr. Echeandia submitted a report of psychological evaluation to the court, in which concluded that “[a]vailable information from various sources other than direct contact strongly suggests the presence of a serious and pervasive mental disorder.” (Italics omitted.)
The parties submitted the matter to the court based on Dr. Echeandia’s report on September 27, 2008. The court adopted the recommendation of Dr. Echeandia and found defendant not competent to stand trial.
Defendant filed a timely notice of appeal of the commitment order, which is appealable under Code of Civil Procedure section 904.1, subdivision (a)(1). (People v. Fields (1965) 62 Cal.2d 538, 542.)
Discussion
Defendant asserts the trial court erred by not appointing a second expert to evaluate his competence to stand trial; there is not substantial evidence to support the trial court’s finding that he is incompetent to stand trial; and the trial court should have appointed separate counsel to represent him in the competency proceeding. Each issue is discussed separately below.
Appointment of Two Experts to Evaluate Competence
Under section 1367, subdivision (a), a defendant is incompetent to stand trial “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.” Further, section 1369, subdivision (a), which addresses the procedure to determine if a defendant is incompetent to stand trial provides, in pertinent part, “[t]he court shall appoint a psychiatrist or licensed psychologist, and any other expert the court may deem appropriate, to examine the defendant. In any case where the defendant or the defendant’s counsel informs the court that the defendant is not seeking a finding of mental incompetence, the court shall appoint two psychiatrists, licensed psychologists, or a combination thereof.” (§ 1369, subd. (a), italics added.)
Defendant does not assert that either he or his counsel expressly informed the court that he was not seeking a finding of incompetence, thus triggering the statutory requirement that the court appoint two competence evaluators. Instead, he contends that the court was or should have been aware that he was not seeking a finding of incompetence by reason of his repeated refusal to meet with Dr. Echeandia, and the fact that defendant made two Marsden motions during the pendency of the proceedings. The latter act, defendant asserts, should have been enough to show the court defendant and his attorney were in a disagreement about his case. From this, defendant argues that the court had an obligation under section 1369, subdivision (a) to appoint two mental health professionals to evaluate his competency, and that its failure to have done so rendered the commitment order invalid.
In People v. Lawley (2002) 27 Cal.4th 102, the California Supreme Court rejected an interpretation of section 1369, subdivision (a) that required the appointment of two mental health evaluators based on the defendant’s “insistence on a court trial, a new lawyer, or the right to proceed in propria persona.” (People v. Lawley, supra, 27 Cal.4th at p. 133.) The court reasoned “[s]ection 1369, subdivision (a) plainly requires ‘defendant or the defendant’s counsel’ to ‘inform[] the court’ that the defense is not seeking a finding of incompetence in order to trigger the required appointment of a second mental health expert.” (Ibid.)
This reasoning similarly applies here. The statute on its face calls for an affirmative expression by defendant or his counsel to the court that defendant is not seeking a finding of incompetence before the requirement of a second evaluator is triggered. Here, the court’s constructive knowledge of defendant’s refusal to meet with Dr. Echeandia, and defendant’s two Marsden hearings is insufficient. These expressions simply do not meet the statutory threshold that the defendant or his counsel informs the court that a finding of incompetence is not being sought.
In addition, with regard to the Marsden hearings, not only did defendant not inform the court he disputed a finding of competence, defendant specifically stated that he was incompetent during the second hearing. Defendant said: “Again, I’m not concerned whether he feels I’m incompetent. What I am concerned, I know that I am I’m incompetent. There is criminal misconduct on State and Federal levels that I served him with paperwork. The jail side quote/unquote in response to that paperwork or report a copy, you have to talk with your attorney. Well, I had talked to my attorney about it. He doesn’t say anything about what he’s going to do.” Contrary to defendant’s assertion on appeal, his Marsden hearings, while demonstrating a conflict between him and his attorney about the way the case should proceed, did not serve to inform the court of defendant’s objection to an incompetence finding.
Defendant relies on People v. Harris (1993) 14 Cal.App.4th 984, for its recognition that the purpose for the statutory requirement that two mental health experts be appointed when the defendant or his counsel inform the court that a finding of incompetence is not being sought is to provide “a minimum protection for the defendant against being incorrectly found incompetent to stand trial.” (Id. at p. 996.) But this purpose does not alter the words of the statute, which impose this requirement only when defendant or his or her counsel informs the court that defendant is not seeking a finding of incompetence. Moreover, the Supreme Court’s later opinion in People v. Lawley, supra, 27 Cal.4th 102, removes any doubt that section 1369, subdivision (a) affirmatively requires the defendant or his counsel to inform the court that defendant is not seeking a finding of incompetence in order to trigger the requirement of a second mental health assessment. In this case, we find the trial court did not err in not appointing a second expert to evaluate defendant’s competence.
Substantial Evidence to Support the Court’s Commitment Order
Defendant asserts on appeal that there is not substantial evidence to support the trial court’s finding that he was incompetent to stand trial. “As a matter of due process, the trial court is required to conduct a section 1368 hearing to determine a defendant’s competency whenever substantial evidence of incompetence has been introduced. [Citations.] Substantial evidence is evidence that raises a reasonable doubt about the defendant’s competence to stand trial. [Citations.]” (People v. Frye (1998) 18 Cal.4th 894, 951-952.) Of course, “[a] defendant is presumed to be mentally competent unless at the . . . section 1368 hearing it is proved by a preponderance of the evidence that he is mentally incompetent. (Pen. Code, § 1369, subd. (f); People v. Superior Court (Campbell)(1975) 51 Cal.App.3d 459, 464 . . . .)” (People v. Campbell (1976) 63 Cal.App.3d 599, 608 (Campbell).) The burden to prove that he is mentally incompetent to stand trial is on the defendant. (People v. Stanley (1995) 10 Cal.4th 764, 817; CALJIC No. 4.10.) According to the court in Campbell, in determining mental competence within the meaning of section 1368, the following standard is to be applied: “[I]s the defendant capable of understanding the nature and purpose of the proceedings taken against him; does he comprehend his own status and condition in reference to such proceedings; is he capable to assist his attorney in conducting his defense, . . . in a rational manner?” (Campbell, supra, 63 Cal.App.3d at p. 608.)
“On appeal, the finding of the trier of fact upon the issue of competenc[e] to stand trial cannot be disturbed if there is any substantial and credible evidence in the record to support the finding. (See People v. Belcher (1969) 269 Cal.App.2d 215, 220 . . . .)” (Campbell, supra, 63 Cal.App.3d at p. 608.)
Here, Dr. Echeandia was appointed to examine defendant to evaluate his competence to stand trial. Dr. Echeandia attempted to evaluate defendant on March 10, and again on April 12, 2006, but defendant refused to meet with him. As a result, Dr. Echeandia based his report on his attempts to contact defendant, his review of defendant’s jail mental health records from March 4, 2006 through July 11, 2006, a letter to defendant from defense counsel that referred to defendant’s refusal to communicate with defense counsel, the complaint and the March 4, 2006 police report. Based on his evaluation of various factors, Dr. Echeandia concluded that defendant had been exhibiting symptoms “indicative of a serious mental disorder.”
While Dr. Echeandia acknowledged that he had “little information concerning defendant’s capacity to fully understand the nature of the charges against him,” Dr. Echeandia opined, “it would appear that defendant’s deeply paranoid beliefs and irrational fears are actively interfering with his capacity to assist his attorney in the conduct of a defense in a rational matter. As noted above, he has repeatedly refused contact with this attorney, despite persistent efforts on the attorney’s part to stress the importance of this contact for assisting in his defense and acting in his best interest. On the one occasion that he did have brief contact with defense counsel, he focused on the fear of a government conspiracy to deny him his rights. This statement would suggest that his refusal to cooperate with counsel in his own defense is associated with the strongly paranoid delusions and irrational fears he has exhibited since his arrest and incarceration. It is also consistent with the reasons given for his continued refusal to speak to a mental health professional.”
Defendant asserts a lack of substantial evidence to support the incompetence finding based primarily on the fact that Dr. Echeandia never personally met with him to conduct an evaluation. In support of this argument, defendant relies on People v. Rodrigues (1994) 8 Cal.4th 1060 (Rodrigues). In Rodrigues, the defendant agued the trial court erred in not ordering a competence evaluation sua sponte in light of substantial evidence of his mental incapacity. (Id. at p. 1110.) The Rodrigues court found that two doctors’ evaluations of the defendant did not provide substantial evidence of incompetence to necessitate a hearing. (Ibid.) Specifically, the court found the first doctor’s opinion was vague and lacking important specifics, having been gleaned from a negligible amount of transcript, with no personal meeting between the doctor and the defendant. (Id. at p. 1111.) The second doctor, who did personally meet with the defendant, had an opinion that was inconclusive, stating he was “ ‘not sure about his opinion since he’s not done a competency evaluation and wanted to get a psychological evaluation on competence before he arrived at an opinion.’ ” (Ibid.) Based on the tentative nature of both doctors’ opinions, the court in Rodrigues found there was not substantial evidence to support a sua sponte duty to conduct a competence hearing. (Id. at p. 1112.)
Here, defendant argues by analogy to Rodrigues that Dr. Echeandia’s opinion of his mental state was similarly tentative, and does not provide substantial evidence of his incompetence. While Dr. Echeandia did not personally meet with defendant prior to his evaluation, he did form an opinion of defendant’s mental state based on a review of substantial records and defendant’s conduct during the pendency of this case. Dr. Echeandia unequivocally stated that he believed defendant suffered from pervasive paranoid beliefs about government intervention in his life that were affecting defendant’s ability to assist his attorney in his defense. Dr. Echeandia’s opinion was not tentative, as the doctors’ opinions were in Rodrigues. On the contrary, Dr. Echeandia clearly opined that defendant was incompetent based on his review of the case.
Viewing the record in the light most favorable to the People, as the party who prevailed below, and presuming in support of the judgment the existence of every fact that the trier of fact could reasonably deduce from the evidence (see Campbell, supra, 63 Cal.App.3d at p. 608), defendant’s competency to stand trial was clearly established by the testimony here.
Appointment of a Second Defense Attorney for the Competence Hearings
Defendant argues that the court’s finding that he was incompetent to stand trial is invalid, because the court did not appoint a second attorney to assist him in opposing the commitment.
This court rejected the same argument in People v. Jernigan (2003) 110 Cal.App.4th 131. In Jernigan, this court stated: “[t]he fact that counsel and her client differed on the central issue of defendant’s competency does not raise an actual conflict requiring the appointment of a second attorney. Once the judge has declared a doubt sufficient to require a section 1368 hearing, defendant’s attorney necessarily plays a much greater role in making fundamental choices for her client. (People v. Samuel (1981) 29 Cal.3d 489, 495 . . . .) It is immaterial that the defendant expressly objects to the course his counsel chooses. To permit a prima facie incompetent defendant to veto counsel’s decision to argue that the client is incompetent would increase the danger that the defendant would be subjected to criminal proceedings when he or she is unable to assist counsel in a rational manner. (See Shephard v. Superior Court (1986) 180 Cal.App.3d 23, 30 . . . .) Therefore, ‘[w]hether or not the client objects, counsel must be allowed to do what counsel believes is best in determining the client’s competence.’ (People v. Masterson (1994) 8 Cal.4th 965, 973 . . . .)” (Id. at pp. 135-136.)
Here, the fact that defendant may or may not have disagreed with his attorney does not bear on his counsel’s ability to represent him, or to advocate for his best interest. Indeed, the sole purpose of a competency proceeding is to protect the accused. (People v. Bye (1981) 116 Cal.App.3d 569, 576.) Here, counsel declared a doubt as to defendant’s competence presumably based on his judgment that it was in defendant’s best interest to do so. Thus, although there may have been a conflict between defendant and counsel about the appointment of an expert to evaluate defendant, there was no actual conflict affecting counsel’s ability to advocate for his client’s best interests, and no necessity to appoint an additional attorney to argue the opposite position. The trial court did not err in refusing to appoint a second attorney to represent defendant in the competence proceedings.
Disposition
The order is affirmed
WE CONCUR: PREMO, J., ELIA, J.