P. v. Chapman

Filed 3/1/07 P. v. Chapman CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Shawn Chapman appeals from denial of his request for leave to file a motion to withdraw a no contest plea. Appellant contends he was not mentally competent at the time he entered his plea of no contest to one count of lewd conduct with a child (Pen. Code,  288, subd. (a)).^[1] He was sentenced to three years in state prison consistent with his plea bargain. In the absence of substantial evidence of incompetence at the time appellant entered his plea, the trial judge did not abuse his discretion by denying appellant's motion to withdraw the plea pursuant to section 1018, nor was the trial judge required by section 1368 to conduct a retroactive competency determination. In any event, appellant waived his constitutional claim by failing to object on constitutional grounds in the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

On June 2, 2005, appellant entered his felony no contest plea upon the understanding that he would be sentenced to the low term of three years in state prison for the felony. He was accused of climbing into the bed of his eleven year old niece and touching her buttock and thigh while a guest in his sister's home. Appellant admitted, "A jury could find me guilty of lewd conduct with a child on 4/22/05." Deputy Public Defender Mark Owens discussed the terms of the plea with appellant and joined in the plea. The trial judge found that appellant knowingly, intelligently and voluntarily waived his rights and freely and voluntarily entered into the plea. The record contains no evidence of incompetence on or before June 2, 2005.

On July 7, 2005, the matter came on for sentencing. The assistant public defender appearing on appellant's behalf declared "there's going to be a public defender conflict" and asked that the conflict defense team be appointed "for possible motion to withdraw."^[2] The court appointed a conflict defense attorney (CDA), who reviewed the plea and communicated with appellant. On August 2, 2005, the CDA reported to the court, "I find no legitimate lawful grounds" to withdraw the plea. The trial judge then relieved the CDA.^[3] Owens immediately requested a mental examination of appellant. ( 1368, subd. (b).) The trial judge suspended criminal proceedings and appointed two psychologists to examine appellant pursuant to section 1369.

The psychologists' reports, submitted in August 2005, concluded that appellant was not presently competent. Counsel stipulated to submit the issue on the reports. On September 6, 2005, the trial judge found appellant not presently competent. The court suspended proceedings and committed appellant to Patton State Hospital. Appellant was admitted to Patton on October 20, 2005. His competency was restored on February 21, 2006, and the medical director filed a certificate of restoration pursuant to section 1372.

On March 9, 2006, the trial judge found appellant competent and reinstated proceedings. At that hearing, Owens requested leave to file a motion to withdraw the plea. He did not articulate the legal or factual grounds for the proposed motion on the record, but asked if the court had an opportunity to review the Day case. (People v. Day (1988) 201 Cal.App.3d 112.) In Day, the court held that "[s]ection 1368 does not provide for a retroactive determination of a defendant's competence." (Id. at p. 120.) The trial court indicated it had read and considered the case. Owens stated, ". . . all Mr. Chapman is asking for in our case is an opportunity to be heard on this issue in the trial court and not have to be, you know, raise the issue on appeal. We would like to have an opportunity to litigate it here first, and then if the court hears the evidence, rules, denies the motion, then the appeal is the only remedy, but we just--we wish to be heard on it before the court just summarily decides that he doesn't--he shouldn't be allowed to withdraw his plea."

The prosecutor responded that under the Day case section 1368 does not provide for a retroactive determination of defendant's competence. The trial judge stated, "I do not intend to grant your motion, I intend to sentence Mr. " Owens interjected, "Well, there is no motion before the court. My request is leave to file a motion." The trial judge replied, "Your request is denied. I read it and [have] given it a lot of thought." The court stated that it had "reviewed and considered" the Patton report. The court found appellant presently competent, reinstated proceedings and sentenced him to the low term of three years state prison consistent with the plea agreement.

For the first time on appeal appellant argues that section 1018 and the Fourteenth Amendment of the United States Constitution provided for a hearing and retroactive determination of his competence. Counsel did not identify those legal grounds for the trial court. He did not make an offer of proof concerning appellant's mental competence as of June 2, 2005.

DISCUSSION

The conviction of an accused person while mentally incompetent violates due process. (People v. Hale (1988) 44 Cal.3d 531, 539.) "A person cannot be tried or adjudged to punishment while that person is mentally incompetent." ( 1367, subd. (a).) "A defendant cannot waive a fundamental right while incompetent." (People v. Smith (2003) 110 Cal.App.4th 492, 501.) A defendant is mentally incompetent when he suffers from a mental disorder or disability that renders him "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).)

On June 2, 2005, the trial court expressly found a knowing and intelligent waiver. There is no evidence in this record to undermine the finding. One month later appellant's counsel declared a doubt as to present competence, and two months after that the trial court found appellant mentally incompetent. The burden is on appellant to demonstrate he was not competent on June 2, 2005. "The statute and general rules of criminal procedure place the burden on the defendant to come forward after restoration of competency with sufficient evidence to show which, if any, parts of the prior proceedings were infected by his subsequent declaration of incompetence." (People v. Smith, supra, 110 Cal.App.4th at p. 505, fn. omitted.)

The June 2005 plea, like all proceedings, enjoys a presumption of appellant's mental competence. ( 1369, subd. (f).) "The prosecution may have the burden of establishing a valid waiver of a fundamental right, but a defendant is presumed competent 'unless it is proved by a preponderance of the evidence that the defendant is mentally incompetent.'" (People v. Smith, supra, 110 Cal.App.4th at p. 502, quoting  1369, subd. (f).) There is nothing in the record to rebut the presumption that appellant was competent on June 2, 2005.

In Smith, an initial jury waiver was not invalidated by a subsequent period of incompetence. The court noted, "No authority supports appellant's argument that the temporal relationship between the waiver and the first evidentiary sign of incompetence alone is sufficient to invalidate an otherwise valid waiver." (People v. Smith, supra, 110 Cal.App.4th at p. 501.) In Smith, there was no evidence of incompetence on the day of the waiver. Here, there is nothing in either of the August 2005 reports to suggest appellant was mentally incompetent on the day he entered the plea.

The Trial Judge Did Not Abuse His Discretion By

Denying the Motion to Withdraw the Plea

On March 9, 2006, appellant's counsel moved to withdraw appellant's plea. As noted, no legal grounds were stated.

Appellant seeks de novo review, arguing that the trial court erroneously decided under Day that it lacked any discretion to hear and adjudicate the motion to withdraw. However, the record does not reflect that the trial court acknowledged it lacked discretion to hear and decide appellant's motion.^[4] It stated, "I do not intend to grant your motion . . . ."

We review the denial of a motion to withdraw a plea for abuse of discretion. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) There is none here. Pursuant to section 1018, the trial court "may . . . for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted." "Good cause" requires a showing that defendant was operating under mistake, ignorance, or any other factor overcoming the exercise of his free judgment. (People v. Cruz (1974) 12 Cal.3d 562, 566.) Here, substantial evidence supports a decision that no good cause appeared. The trial judge had reviewed "the entire file." This included the August 2005 evaluations previously reviewed, neither of which suggested that appellant's mental status had decompensated prior to the sentencing hearing when the issue was first brought to the trial court's attention. The trial judge personally observed appellant at the time he entered his plea. Neither the judge nor defense counsel noted any concerns with appellant's competence at that time. The record contains no evidence that appellant had any problems understanding or participating in the plea proceedings. The court file included the report from Patton concerning appellant's brief period of incompetence, his appropriate behavior while at Patton, and his prompt restoration to competence. The trial judge had also reviewed appellant's statements to the probation officer, which reflect an awareness of the proceedings and a tactical decision to attempt to withdraw his plea.

Appellant's counsel made no offer of proof on March 9 with respect to any further evidence he may have developed to support a claim that appellant was not competent to enter his plea nine months earlier. Any claim that appellant was not mentally competent on June 2, 2005 was speculation. Substantial evidence supports the trial judge's conclusion that appellant had not and could not rebut the presumption that he was competent at the time he entered his plea.

The Trial Judge Was Not Required

To Determine Competence Retroactively

State law requires a trial judge to initiate competency proceedings when a doubt arises in the court's mind, substantial evidence of present incompetence is before the court, or counsel expresses a doubt as to present competence. ( 1368.) None of these events occurred until August 2, 2005, whereupon the court did initiate competency proceedings.

Section 1368 does not provide for retrospective determination of competency upon restoration. (People v. Day, supra, 201 Cal.App.3d at p. 120.) In Day, a jury found defendant guilty of assault with a deadly weapon. At the sentencing hearing defense counsel first declared a doubt as to defendant's mental competence. The trial judge suspended proceedings and ordered 1368 evaluations. The trial judge found defendant not presently competent, and committed him to Atascadero State Hospital. Competency was later restored and proceedings reinstated. Defense counsel filed a motion for new trial on the grounds that defendant had been incompetent to stand trial before defense counsel had declared a doubt as to his competency. The trial judge received evidence concerning defendant's competence at the time of trial and appointed it's own evaluator to report on the question of competence at the time of trial. The trial judge was prepared to render a retrospective determination when defendant withdrew his motion for new trial. Once he did so, the trial judge had no further duty to resolve the issue. The trial judge proceeded to sentencing and the judgment was affirmed.

Appellant Waived Any Constitutional Claim

By Raising It for the First Time On Appeal

Appellant argues that the trial judge violated his constitutional rights under the Fourteenth Amendment to the United States Constitution by refusing him the opportunity to file and litigate a motion to withdraw his plea. Appellant failed to preserve this issue for appeal by failing to object on the constitutional ground now asserted. (People v. Brown (2003) 31 Cal.4th 518, 546.) When the prosecutor argued that section 1368 does not provide for a retroactive determination of defendant's competence, appellant's counsel did not respond with any objection or argument based on constitutional grounds. Since appellant has failed to preserve any due process claim, there is no need to address the feasibility of a retrospective competency hearing of the sort that was suggested in People v. Ary (2004) 118 Cal.App.4th 1016 to cure a due process deprivation.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

GILBERT, P.J.

YEGAN, J.

James F. Iwasko, Judge

Superior Court County of Santa Barbara

______________________________

Dan Mrotek, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Edmond G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth N. Soloker, Marc E. Turchin, Deputy Attorneys General, for Plaintiff and Respondent.

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^[1]All statutory references are to this code unless otherwise stated.

^[2]Unlike People v. Eastman (2007) 146 Cal.App.4th 688, appellant here did not express to the court concerns about counsel's performance, and there was no duty to conduct a hearing under People v. Marsden (1970) 2 Cal.3d 118.

^[3]The appointment of the CDA and Owens may have overlapped, but if so, no prejudice resulted. In People v. Smith (1993) 6 Cal.4th 684, 695, the Court observed, "We are unaware of any authority supporting the appointment of simultaneous and independent, but potentially rival, attorneys to represent defendant." Whether Owens had been relieved as counsel during the period of CDA representation does not appear from the record. Owens was present on behalf of appellant when the CDA was relieved. Appellant concedes there was no prejudice.

^[4]The prosecutor argued only that, under People v. Day, supra, 201 Cal.App.3d 112, the trial court did not have "a duty" or "an obligation" to determine the issue of competence under section 1368.