Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 05-060867-9
Kline, P.J.
Eric Vernon Parker appeals from convictions of kidnapping, assault with a deadly weapon, making criminal threats, and several methamphetamine related offenses. He contends his convictions must be reversed because the trial court failed to conduct a hearing regarding his competence to stand trial. We affirm.
STATEMENT OF THE CASE
By information filed on July 19, 2006, appellant was charged with 13 felony offenses as follows: count one–kidnapping for ransom (Pen. Code, § 209, subd. (a)) ; count two–first degree residential burglary (§ 459, 460, subd. (a)); count three–assault with a deadly weapon and by force likely to produce great bodily injury (§ 245, subd. (a)(1)); counts four and five–making criminal threats (§ 422); count six–stalking (§ 646.9, subd. (a)); count seven–utilizing a fortified house to suppress law enforcement entry in order to sell, manufacture and possess for sale methamphetamine (Health & Saf. Code, § 11366.6); counts eight, ten and twelve–possession of methamphetamine for sale (Health & Saf. Code, § 11378); counts nine and eleven–sale, distribution, or transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)); and count thirteen–possession of a false compartment with intent to store, conceal, smuggle and transport methamphetamine (Health & Saf. Code, § 11366.8, subd. (a)). It was alleged in connection with count two that the burglary was committed while a nonparticipant was in the residence, making the offense a violent felony (§ 667.5, subd. (c)(21)), and while armed with a handgun (§ 12022, subd. (a)(1)); and in connection with count three that appellant inflicted great bodily injury (§ 12022.7, subd. (a)), and that the offense was a serious felony (§ 1192.7, subd. (c)). It was further alleged that appellant had suffered three prior felony convictions resulting in prison terms (§ 667.5, subd. (b)) and that appellant was ineligible for probation due to his personal infliction of great bodily injury in connection with count one (§ 1203.075); his possession for sale of an excess quantity of methamphetamine in connection with count twelve (§ 1203.073, subd. (b)(2)); a prior conviction of possession for sale of cocaine in connection with counts eight through twelve (§ 1203.07, subd. (a)(11)); and seven prior felony convictions (§ 1203, subd. (e)(4)). Finally, the information alleged five enhancements for prior controlled substance convictions (Health & Saf. Code, § 11370.2, subd. (c)).
All further statutory references will be to the Penal Code unless otherwise specified.
Trial began on August 13, 2007, with in limine motions and jury selection; presentation of the case to the jury began on August 20.
On September 25, the jury returned verdicts of not guilty on counts two, four, six, eight, eleven and twelve. Appellant was found guilty of the lesser offense of simple kidnapping (§ 207, subd. (a)) on count one, and guilty as charged on counts three, five, seven, nine, ten and thirteen. The jury found true the allegation that appellant personally used a dangerous and deadly weapon in connection with count three. The court found true four of the five prior controlled substance conviction enhancements alleged pursuant to Health and Safety Code section 11370, subdivision (c)(2), and found true the three prior prison enhancements alleged pursuant to section 667.5, subdivision (b).
On January 4, 2008, appellant was sentenced to a total prison term of 17 years four months, consisting of a middle term of three years on count nine; a consecutive one-third middle term of one year eight months on count one; a consecutive one-third middle term of eight months on count five; consecutive three-year terms for each of the four Health and Safety Code section 11370.2, subdivision (c) enhancements; a concurrent middle term of three years on count three; a concurrent lower term of three years on count seven; a concurrent middle term of two years on count ten; and a concurrent middle term of two years on count thirteen. The court struck the three prior prison term enhancements.
Appellant filed a timely notice of appeal on January 15, 2008.
STATEMENT OF FACTS
As appellant’s sole contention on appeal is unrelated to the facts underlying his convictions, a detailed recitation of the facts is not necessary. The kidnapping, assault and criminal threat offenses of which appellant was convicted on counts one, three and five arose from an incident on March 3, 2005, in which Leonhard Tibbits was abducted at gunpoint by men who said they were taking him to appellant, then beaten by appellant with a flashlight. During the incident, appellant directed Tibbits to call his girlfriend, Malia Haight, then took the phone and had Haight listen while he continued to beat Tibbits. Appellant demanded money and a car from Malia and made threats concerning her, her son and her dog.
The facts underlying counts nine and ten were established through the testimony of Troy Paulson, a methamphetamine addict who testified against appellant as part of a plea bargain. Paulson worked for appellant, who paid him with methamphetamine and cash. On several occasions in February and early March of 2004, Paulson drove appellant to the home of a man called “Pink Lips,” where appellant purchased methamphetamine. On one of these occasions, appellant obtained a large quantity of methamphetamine and directed Paulson to give it to a man named Eric who drove up in a small truck. Appellant had Paulson arrange for them to go to the home of Alexis Ramos, which they did after obtaining supplies including ziplock baggies, plastic gloves and a scale. Eric brought the methamphetamine to Alexis’s bedroom, where appellant quickly weighed out quantities of the drug, bagged it and sold it to several women who came into the room. Appellant directed Paulson to clean up and gave Alexis’s brother money for letting him use the house.
With respect to count seven, utilizing a fortified house to suppress law enforcement entry in order to sell, manufacture and possess for sale methamphetamine, officers found various indications of narcotics sales in appellant’s apartment, including “pay/owe information,” a video surveillance system, a heavily fortified front door, secured windows, and a digital scale with methamphetamine residue. During the search, two individuals came to the apartment looking for appellant. One said she was there to purchase methamphetamine and had done so on prior occasions; the other was found in possession of two bundles of United States currency totaling $1,500 and a digital scale, and had 20.84 grams of methamphetamine in his car. Paulson testified that the monitor for appellant’s security cameras was in his bedroom and that appellant wedged a toolbox and chair behind the door of his apartment after entering and locking it.
Concerning count thirteen, Alexis Ramos, whom appellant had married several weeks before, told the police large amounts of methamphetamine were being sold from appellant’s apartment; appellant had repeatedly threatened to hurt her; appellant used her to make methamphetamine deliveries against her will; and appellant’s car was customized with a pipe welded to the frame and used to conceal methamphetamine for transportation. On March 26, 2004, police officers saw appellant outside his apartment near a Cadillac Escalade parked in front of the apartment. A two-foot long, hollow, square metal pipe was welded to the underside of the vehicle, running from driver side to passenger side, with both ends open.
DISCUSSION
Appellant contends the trial court violated his constitutional rights to due process and a fair trial by failing to inquire into and conduct a hearing regarding his competence to stand trial when, during the trial, he appeared in court with two black eyes, an injured lip and 30 stitches on his face.
On the morning of September 4, the eighth day of trial to the jury, the court began by addressing defense counsel: “Mr. Horowitz, although I’m certified as color blind, I can see on your client that he has two black eyes. I don’t want to go into any detail, maybe there’s some other reasons for it, but I want to inquire whether he’s feeling all right, whether he’s been injured, or whether there’s anything at all that would impede his capacity to be alert and attentive in these proceedings.” The following colloquy ensued:
“Mr. Horowitz: Your Honor, I think he’s ready to go.
“The Court: Have you had a chance to talk to him?
“Mr. Horowitz: I have, and he’s ready to go. He looked better the other day in court, but he’s ready to proceed with this trial.
“The Court: Well, I just want you to be sure that you realize he’s not looking as well as he did. I’m not a doctor, but he
“The Defendant: I’m all right.
“The Court: But he seems to be pale. Has your lip been injured?
“The Defendant: Yeah.
“The Court: I can see that that’s difficult for you. Did you have any stitches or anything like that?
“The Defendant: About 30 of them. He does all the talking for our team though. I just grunt and groan.
“The Court: But this is a matter that I think you should deal with... clear understanding that I’m not telling you in any way, shape, or form what Mr. Parker and you may want to do, but you can rest assured—I don’t know what the medical reports are, but you can also rest assured that the writ lawyer, if he is convicted, is going to want to know all about his injury and what medication he may have had and how—if he was in the hospital and how long he was in the hospital. [¶] These are not casual matters, and probably an old pro like myself is the only one who would know about those things.
“Mr. Horowitz: I’ve weighed those, Your Honor, and I think it’s—we’re ready to proceed with this.
“The Court: You’ve heard from your lawyer?
“The Defendant: Yes, sir.
“The Court: And there’s such a—there’s a doctrine in the law of invited error. Now, if it turns out that he is not well, that he was under medication, that he had no sleep. I think you indicated there was some incident in the jail I take it on Saturday night.
“Mr. Horowitz: Is that right?
“The Court: Well, did you say that?
“Mr. Horowitz: No.
“The Court: Or did my bailiff say that?
“The Bailiff: I did, your Honor.
“The Court: So I don’t know whether he was in the hospital, how long he was in the hospital or anything like that. I hope you realize invited error. And if you want to read the case with me, I forget what it was, but it was a murder case and they had three pages of dialogue that I had with the defendant, as I’m having with this guy, and the defendant said, ‘No, Judge.’ He said, ‘I want to go ahead, and I don’t want any,’ boom, boom, boom, boom. And not very often they waste 3 pages in the volumes on it. So I just want you to understand that.
“Mr. Horowitz: Okay, I’ve thought it through.
“The Court: I know the things that come back to bite you.
“Mr. Horowitz: I understand that the court would give us time if we asked for it, and we’ve thought it through.
“The Court: Well, would you like me to do something else for you? I’ll ask the jail to send over a copy of the medical, not the incident report, I’m not talking about that, but the medical report.
“Mr. Horowitz: That would be fine. At least I can look at it. But I have my own reasoning.”
The court made clear that it was not concerned about the incident that had occurred, only “whether or not he’s affected by that to the capacity.” The court suggested again that defense counsel “spend some time with your client,” noting that “there will be an issue raised concerning your adequacy of representation” if appellant was convicted, and defense counsel reiterated that he and appellant had “talked about it.”
After a discussion about an upcoming witness and discovery, the conversation returned to appellant’s condition.
“The Court: And you’re still of a frame of mind that you’re not concerned, two black eyes and the lips. His appearance is noticeably different than it was.
“Mr. Horowitz: No. I’m ready to go with that, you Honor.
“The Court: And are you satisfied with your lawyer’s determination to go forward?
“The Defendant: Yes, Sir.
“Mr. Horowitz: I’m going to
“The Court: I’m not talking about anything that happened there, but is your mouth wired in any way? You’re very stiff-lipped.
“The Defendant: Yeah.
“The Court: You got a lot of stitches in there?
“The Defendant: Yeah.
“Mr. Horowitz: He always kept a stiff upper lip anyway.
“The Court: Were you able to have breakfast this morning, even a liquid breakfast?
“The Defendant: Yeah, I imagine I did. I don’t remember, but I’m sure I did. I’m all right.
“The Court: You’re satisfied to go ahead?
“The Defendant: Yeah.
“The Court: You realize that some juror’s going to wonder what happened to him over the weekend, and I have no idea what inference they might draw from that. But both you and your lawyer are willing to set that aside to go forward at this time?
“Mr. Horowitz: Yes, your Honor.
“The Court: And if at any time, Mr. Parker, if you feel that you’re not feeling well enough, be sure to let me know because I didn’t ask you, but you volunteered a statement awhile ago that you took some Vicodin. [¶]... [¶]
“The Court: Anything else?
“The Defendant: Penicillin.
“The Court: That was taken about what time this morning?
“The Defendant: 5. I’m supposed to get some more at lunchtime. It’s kind of necessary. I’m kind of chewed up.
“The Court: Are you in pain now, physical pain?
“The Defendant: Good possibility I would be, if I wasn’t taking pain meds I mean.
“The Court: But you’re willing to go ahead this morning?
“The Defendant: Yeah, let’s do it.”
Trial proceeded. Before breaking for lunch, the court stated that it had reviewed appellant’s medical reports with respect to medications, and appellant was supposed to take one or two tablets of Vicodin number 15, every six hours, 800 milligrams of ibuprofen two or three times daily, and 500 milligrams of penicillin four times a day for 10 days. Defense counsel told the court he had noticed during the last witness’s testimony that appellant, who normally was “very interested and responsive,” was “not very responsive, wasn’t out of it, but he was in the I-don’t-really-care mode.” Counsel was concerned that if appellant took another pill he might be “fairly out of it” when trial resumed after lunch. The court and counsel agreed to wait until after the break and see how appellant was feeling.
After the lunch break, the court confirmed with appellant that he had gotten his medication on time and asked defense counsel for his assessment after talking to appellant. Counsel stated appellant was ready to go forward and asked, “We’re talking about the case properly. Is that still your desire to continue?” Appellant replied, “Yes, sir.” The court told appellant to be sure to tell his lawyer if he did not feel well. Appellant responded, “I’ll get through the day. I know everybody’s pressing to be here for me, so I might as well be there for everybody.” The court told appellant, “Well, we appreciate that, but I hope you realize that I’m concerned for any defendant if he or she’s not feeling well.”
As trial resumed, the police officer witness was asked to identify the person he saw in a particular location and replied, “Gentleman over there with the black eye and purple shirt on.”
The following morning, the court asked appellant if he had gotten his morning medication and appellant said he had and he felt “fine.” The court noted appellant still had “those dark eyes” and asked if he had further medical appointments. Appellant did not know, but defense counsel indicated appellant needed them because his two front teeth were loose. The court mentioned that there were notes in the medical report about appellant scheduling appointments and “unless he asks for it,... they’re not going to schedule it,” and suggested to counsel, “You may want to look into that.” The court asked appellant if he felt all right and appellant replied, “Yeah. I’d just like to have some order from the court to get them to re-seal my three front teeth because they’re loose in my mouth.... [¶]... I’d like the court to some way make sure that I get to at least keep my teeth out of it. I don’t care about the rest.” The court again asked appellant if he had gotten his medication that morning and if he felt okay, received an affirmative response, and told appellant he would send a note to the medical module to be sure his teeth were attended to. Defense counsel noted that appellant had not been able to eat solid food for a while and “[a]t some point it’s going to start breaking him down because his teeth don’t work.” The court asked appellant about nourishment, appellant said he had been able to eat pancakes, the court confirmed with appellant that he was ready “to go forward here” and reminded appellant to ask if he needed a break at any time.
“Both the due process clause of the Fourteenth Amendment to the United States Constitution and state law require a trial judge to suspend proceedings and conduct a competency hearing whenever the court is presented with substantial evidence of incompetence, that is, evidence that raises a reasonable or bona fide doubt concerning the defendant’s competence to stand trial. (§§ 1367, 1368; Drope v. Missouri (1975) 420 U.S. 162, 181; Pate v. Robinson (1966) 383 U.S. 375, 384-386; People v. Welch (1999) 20 Cal.4th 701, 737-738.) Failure to declare a doubt and to conduct a competency hearing when there is substantial evidence of incompetence requires reversal of the judgment. (Ibid.)” (People v. Blair (2005) 36 Cal.4th 686, 711.)
“The test for incompetence is also well settled. A defendant may not be put to trial unless he ‘ “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding... [and] a rational as well as factual understanding of the proceedings against him.” ’ ” (Cooper v. Oklahoma (1996) 517 U.S. 348, 354, quoting Dusky v. United States (1960) 362 U.S. 402; People v. Blair, supra, 36 Cal.4th at p. 711.) “The focus of the inquiry is the defendant’s mental capacity to understand the nature and purpose of the proceedings against him or her.” (People v. Blair, at p. 711; Godinez v. Moran (1993) 509 U.S. 389, 401, fn. 12.) “A trial court’s decision whether or not to hold a competence hearing is entitled to deference, because the court has the opportunity to observe the defendant during trial. (See People v. Danielson [(1992)] 3 Cal.4th [691,] 727; see also Drope v. Missouri, supra, 420 U.S. at p. 181.)” (People v. Rogers (2006) 39 Cal.4th 826, 847.)
Appellant argues that there was substantial evidence he did not have a rational or factual understanding of the proceedings against him, or ability to consult with his attorney with a reasonable degree of rational understanding, because of his physical condition and the medication he was taking for his injuries. He points to several comments by his attorney that he sees as demonstrating the attorney had not discussed the matter with him. First, when the court indicated it had been informed appellant’s injuries were due to an incident at the jail, defense counsel responded, “Is that right?” Next, when the court said it had no information about whether or how long appellant had been in the hospital, defense counsel said nothing. When the court said it would order production of appellant’s medical report, defense counsel replied, “That would be fine. At least I can look at it. But I have my own reasoning.”
Appellant also points to the concern defense counsel raised about appellant being “out of it.” As reflected above, defense counsel told the court appellant had not been as responsive as usual during the chemist’s testimony and suggested that if appellant took another pill during lunch “and is really feeling the effects at 1:15, he’ll be fairly out of it.” At a minimum, appellant urges, at this point the court should have appointed an expert to examine his competence.
It is apparent from the lengthy discussions quoted above that the trial court was concerned about the effect appellant’s physical injuries and the medications he was taking as a result might have on the trial, noting that jurors might draw inferences from appellant’s appearance and reminding appellant to let the court know if he was not feeling well enough to continue. The court repeatedly questioned defense counsel and appellant about their decision to go forward and was assured by both that this was their choice. As the discussions quoted above demonstrate, appellant’s responses to the court’s questions were appropriate and lucid. Nothing in the exchanges suggested appellant was unable to “understand the nature and purpose of the proceedings against him” or “ ‘ “consult with his lawyer with a reasonable degree of rational understanding.” ‘ ” (People v. Blair, supra, 36 Cal.4th at p. 711.)
“Under the applicable substantial evidence test, ‘more is required to raise a doubt than mere bizarre actions [citation] or bizarre statements [citation] or statements of defense counsel that defendant is incapable of cooperating in his defense [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.’ (People v. Laudermilk (1967) 67 Cal.2d 272, 285.)” (People v. Davis (1995) 10 Cal.4th 463, 527.)
The present case does not even involve this much. At most, the record reflects that appellant had suffered significant physical injuries and was in some degree of physical pain, or, as he said, would have been if he had not been taking pain medication, and that his injuries and/or medication might have been having a sedating effect upon him. Such sedation, however, does not necessarily raise a doubt about a defendant’s competence. People v. Jones (1997) 15 Cal.4th 119, 151, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, footnote 1, found the fact that a defendant taking psychotropic medication appeared sleepy or drowsy during the proceedings insufficient evidence of incompetence to require a competency hearing. In Jones, two competency hearings had previously been held and the question was whether there was “ ‘a substantial change of circumstances’ or ‘new evidence’ of incompetence necessitating a third competency hearing.” (People v. Jones, at p. 151.) Although this is a different standard than that applicable to a first competency hearing, Jones nevertheless indicates a defendant’s sleepy demeanor does not equate with incompetence. Similarly, in People v. Danielson, supra, 3 Cal.4th 691, 727, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, footnote 13, the court stated, “The evidence regarding defendant’s drug doses, and his demeanor on and off the witness stand, indicated at most that he may have been overmedicated, but no substantial evidence was raised indicating he was unable to understand the nature of the proceedings or to cooperate with his counsel.” (People v. Danielson, at p. 727.) The defendant was challenging the trial court’s failure to hold a formal competency hearing after a question arose as to whether he was overmedicated during his penalty phase testimony. The court held a “limited” inquiry at which a defense expert testified that the defendant was being given twice the recommended dose of medication, which was likely to be highly sedating and to have a severe influence on the defendant’s emotional demeanor, and other experts who did not find a problem with the defendant’s competence. (Id. at pp. 725-726.) Danielson upheld the trial court’s conclusion that a formal competency hearing was not required. (Id. at p. 727.)
Here, while the court cautioned defense counsel and appellant about proceeding with trial if appellant’s ability to remain alert was impaired, it did not express concern about appellant’s ability to comprehend and participate. The only hint of hesitation about proceeding from defense counsel came when counsel told the court that appellant had been in an “ ‘I-don’t-really-care mode’ ” and less “interested and responsive” that he had been previously, and suggested that if appellant took additional medication during the lunch break, he might be “fairly out of it” when trial resumed. After lunch, however, both appellant and counsel told the court they were ready to continue. Appellant points to no other portion of the record suggesting any issue with respect to his competence. The court had been observing appellant for many days of trial before appellant was injured and, therefore, was in a position to observe any changes in appellant’s demeanor or interaction with counsel. As we have stated, appellant’s responses to the court’s questions about his condition and wishes with respect to the trial were coherent and gave no indication he was unable to comprehend the proceedings or communicate with counsel.
Respondent argues that appellant forfeited his claim based on the doctrines of invited error and estoppel. Respondent recognizes the rule that “[o]nce a doubt has arisen as to the competence of the defendant to stand trial, the trial court has no jurisdiction to proceed with the case against the defendant without first determining his competence in a section 1368 hearing, and the matter cannot be waived by defendant or his counsel. ([People v.] Pennington [(1967)] 66 Cal.2d [508,] 518; In re Davis (1973) 8 Cal.3d 798, 808.)” (People v. Hale (1988) 44 Cal.3d 531, 541.) Respondent argues, however, that appellant can be found to have forfeited this claim because the Supreme Court, in People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 70-71, held that a trial court’s failure to hold a competency hearing results only in an “excess of jurisdiction,” not a loss of subject matter jurisdiction. Having determined that the trial court did not err, we need not resolve the forfeiture question.
The judgment is affirmed.
We concur: Haerle, J., Richman, J.