P. v. Lorthridge

Filed 3/22/07 P. v. Lorthridge CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

APPEAL from a judgment of the Superior Court of Los Angeles County. David M. Mintz, Judge. Affirmed.

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Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael R. Johnsen and Juliet H. Swoboda, Deputy Attorneys General, for Plaintiff and Respondent.

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Nehtupu Lorthridge appeals from his conviction of misdemeanor child annoyance pursuant to Penal Code section 647.6, subdivision (a).^[1] He contends that the trial court erred when it found him competent to stand trial. We disagree and affirm.

BACKGROUND

On November 16, 2002, six-year-old F. P. and Lorthridge were helping F.P.s father do some repair work at the church that both families attended. F. P. wandered into a room that had a piano, sat down on the bench, and started pressing the keys. Lorthridge entered later and said that he could play the piano better. Then he stood behind her with his legs apart, and through his and her clothing F. P. felt his penis touch her bottom. When F. P. tried to leave, Lorthridge picked her up by her stomach, pulled the back of her pants, and let the elastic waistband snap against her. She ran to her father. Lorthridge followed. When F. P. tried to hit Lorthridge, her father asked her why, and she told him what had happened.^[2]

On December 16, 2003, the Los Angeles County District Attorneys Office filed an information charging Lorthridge with committing a lewd act upon a child in violation of section 288, subdivision (a). At a pretrial hearing on February 10, 2004, Lorthridges counsel, a public defender, informed the court that he doubted whether Lorthridge was competent to stand trial under sections 1368 and 1369 due to a developmental disability. Counsel requested, and the court appointed, Dr. Ronald R. Fairbanks to examine Lorthridge and evaluate his competence. The court declared its doubt as to Lorthridges competence and adjourned the criminal proceedings. On March 24, 2004, the trial court also appointed Dr. Mark E. Jaffe to evaluate Lorthridges competence.

Dr. Fairbanks reported to the court that Lorthridge, born in 1978 and then 25 years old, had suffered brain damage in an auto accident when he was 11 that left him mildly retarded and still needing medication to prevent seizures. Dr. Fairbanks found Lorthridge to be personable and cooperative but with limited intellectual capacities and the mental development of a 12-year-old. Using the Wechsler Adult Intelligence Scale, he rated Lorthridge as mildly retarded and having a verbal IQ of 65, a performance IQ of 65, and a full scale IQ of 62, with his lowest area of ability in understanding societal expectations. Dr. Fairbanks found Lorthridge marginally competent to stand trial if given patient coaching and explanations as to what was happening in the trial process.

Dr. Jaffe administered the Competence Assessment for Standing Trial for Defendants with Mental Retardation (CAST-MR). He concluded that Lorthridge was marginally competent to stand trial and appeared marginally able to cooperate rationally with defense counsel with help and coaching.

At a hearing on August 23, 2004, both counsel submitted the issue of competency on Dr. Fairbanks and Dr. Jaffes reports. Based on those reports, the court found Lorthridge competent to stand trial and resumed criminal proceedings.

On March 3, 2005, after several continuances, defense counsel again expressed doubt as to Lorthridges competence and noted that Dr. Fairbanks had done additional research on competence testing criteria and now believed it likely that he would find Lorthridge incompetent if he reexamined him. The court appointed Dr. Fairbanks and Dr. Robert M. Itatani to evaluate Lorthridge, declared doubt as to competence, and readjourned the proceedings.

On March 31, 2005, Dr. Fairbanks examined Lorthridge using the CAST-MR testing scale, which Dr. Fairbanks had purchased and learned to use since his earlier evaluation of Lorthridge. This time, he found Lorthridge incompetent to stand trial, noting that Lorthridge failed the two sections of the test concerning basic legal concepts and understanding of case events but passed the section measuring skills for assisting his attorney. Dr. Itatani did not specify his testing methodology, but he examined Lorthridge on April 17, 2005, and found him marginally competent. He noted that Lorthridge had some difficulty defining some legal terms and concepts, but Dr. Itatani believed Lorthridge could learn these terms and concepts and found him able to cooperate rationally with counsel in preparing a defense.

On May 24, 2005, the trial court resumed the competency hearing, admitted the newer reports from Drs. Fairbanks and Itatani in evidence, and heard Dr. Fairbanks testimony. Noting that the reports mentioned Lorthridges difficulty defining certain legal concepts and his memory problems but that these were problems shared by other more typical criminal defendants, the court found Lorthridge to be marginally competentclose to the line, but still competent to stand trial if careful, patient explanations were provided. The court resumed the criminal proceedings.

On July 13, 2005, defense counsel requested a court trial. The court accepted Lorthridges waiver of a jury trial after explaining to him his constitutional right to a jury trial as well as his rights to confront witnesses, to require proof of guilt beyond a reasonable doubt, and to testify or not. On October 5, 2005, the court granted the prosecutions motion to add a count for misdemeanor child annoyance under section 647.6, subdivision (a), and dismiss the felony count pursuant to section 288, subdivision (a). At trial, the only evidence presented was the preliminary hearing transcript from December 2, 2003, and a transcript of a tape-recorded interview between a Los Angeles Police Department detective and Lorthridge and his mother conducted shortly after the incident involving F. P. Because Lorthridge was in effect entering a slow plea (see In re Jennings (2004) 34 Cal.4th 254, 265, fn. 5; Bunnell v. Superior Court (1975) 13 Cal.3d 592, 602-606), the court admonished Lorthridge regarding his rights to confrontation, to present evidence, and to testify or not testify and advised him of the penal consequences of conviction, including the requirement that he register with local law enforcement as a sex offender under section 290. The court then found Lorthridge to have waived his trial rights knowingly. Defense counsel joined in the waivers but repeated his doubts as to Lorthridges competence to make the waivers.

The matter was continued to November 16, 2005. On that date, both sides reaffirmed that they rested. The court found Lorthridge guilty of violating section 647.6. The case was continued for sentencing. At the sentencing hearing on January 9, 2006, defense counsel argued that imposition of a lifetime registration requirement was inappropriate and unfair given Lorthridges intellectual incapacities. The trial court disagreed, suspended imposition of sentence, and imposed three years summary probation, a $100 restitution fine pursuant to section 1202.4, subdivision (b), a $20 court security charge pursuant to section 1465.8, subdivision (a)(1), and the registration requirement under section 290. The court asked Lorthridges mother to help make sure that he registered promptly. Lorthridge timely appealed.

DISCUSSION

Lorthridge contends that the trial court erred by finding him competent to stand trial and to waive his trial rights.

A defendant is presumed to be mentally competent unless it is proved by a preponderance of the evidence that he is incompetent. ( 1369, subd. (f); People v. Sakarias (2000) 22 Cal.4th 596, 617; People v. Campbell (1976) 63 Cal.App.3d 599, 608.) On appeal, we must determine whether, viewed in the light most favorable to the decision, substantial evidence that is reasonable, credible, and of solid value supports the trial courts finding on competency. (People v. Dunkle (2005) 36 Cal.4th 861, 885.)

Although Dr. Fairbanks, in his second evaluation of Lorthridge, reversed his earlier conclusion and determined that Lorthridge was incompetent to stand trial, the contrary evaluation by Dr. Itatani constitutes reasonable, credible, and substantial evidence to support a finding that Lorthridge was competent. We may not reweigh evidence or reevaluate a witnesss credibility. (People v. Guerra (2006) 37 Cal.4th 1067, 1129.)

Lorthridge maintains that the preponderance of the evidence in the trial court proved him not competent. But we do not review the evidence de novo. If substantial evidence supports the trial courts finding, we must affirm. (See In re Mark L. (2001) 94 Cal.App.4th 573, 581, fn. 5.) Lorthridge also argues that because all the experts agreed that he was mildly retarded, by definition, he was not legally competent to stand trial or to waive his rights. Mildly retarded criminal defendants, however, may be found competent. (See People v. Campbell, supra, 63 Cal.App.3d at pp. 605, 608-609.) Notably, in his interview with the police detective after the incident involving F. P., Lorthridge expressed an understanding that what he had done was wrong. Nor is this a situation like that in People v. Samuel (1981) 29 Cal.3d 489, in which a wide array of expert witnesses and reports all unanimously affirmed the defendants incompetence and there was virtually no countervailing evidence. (Id. at 497-498, 500-506.)

Lorthridge also contends that the trial courts order requiring him to pay a $20 court security fee under section 1465.8, subdivision (a), violates the prohibition against ex post facto application of laws in both the federal and state constitution, because the statute became effective on August 17, 2003, after the incident involving F. P. that occurred on November 16, 2002.^[3] On this matter, we follow the reasoning of Division Five of our district in People v. Wallace (2004) 120 Cal.App.4th 867, which held that the court security fee, as a minimal fee not imposed for punitive purposes and without punitive effect, is not subject to the limitations of the ex post facto clause. (Id. at pp. 870, 876, 878-879.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

ROTHSCHILD, J.

We concur:

MALLANO, Acting P.J. VOGEL, J.

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^[1] All further statutory references are to the Penal Code.

^[2] The parties stipulated that these events occurred.

^[3] The California Supreme Court has granted review of two cases presenting this issue. (People v. Alford (2006) 137 Cal.App.4th 612, review granted May 10, 2006, S142508 and People v. Carmichael (2006) 135 Cal.App.4th 937, review granted May 10, 2006, S141415.) We acknowledge Lorthridges preservation of this issue pending the high courts resolution of these cases.