P. v. Morgan
Filed 8/21/07 P. v. Morgan CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN
THE PEOPLE, Plaintiff and Respondent, v. GARY B. MORGAN, Defendant and Appellant. | B189483 (Los Angeles County Super. Ct. No. BA282348) |
In re GARY B. MORGAN on Habeas Corpus. | B193975 |
APPEAL from a judgment of the Superior Court of Los Angeles County, Carol H. Rehm, Judge. Dismissed.
PETITION for writ of habeas corpus. Petition denied.
Kathleen M. Redmond, under appointment by the Court of Appeal, for Defendant, Appellant and Petitioner.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz, Supervising Deputy Attorney General, Steven E. Mercer, Deputy Attorney General, for Plaintiff and Respondent.
While representing himself, Gary B. Morgan pleaded no contest to one count of selling, transporting and offering to sell cocaine base and was sentenced to a three-year prison term. We appointed counsel to represent Morgan on appeal. In his brief on appeal and his concomitantly filed petition for writ of habeas corpus, Morgan contends the trial court had a duty under Penal Code section 1368, subdivision (a),[1]and the due process clause of the United States Constitution to revoke his previously granted in propria persona status and appoint counsel to represent him during his pre-plea section 1368 competency hearing.
Because Morgan failed to obtain a certificate of probable cause permitting him to challenge the validity of his plea, we dismiss the appeal. ( 1237.5.) Because it is apparent from the record the court did not hold a section 1368 competency hearing, we summarily deny the petition for a writ of habeas corpus.
FACTUAL AND PROCEDURAL HISTORY
1. Morgans Self-representation Status in the Trial Court
On May 5, 2005, before the preliminary hearing in this matter, Morgan asked the court to dismiss his court-appointed public defender and allow him to represent himself at all proceedings. After admonishing him as to the disadvantages and ramifications of self-representation, the court granted Morgans application to represent himself. The court also appointed stand-by counsel.
2. The Preliminary Hearing and Arraignment
Morgan represented himself at both the July 28, 2005 preliminary hearing and his arraignment on August 11, 2005, when he pleaded not guilty to the charge of selling, transporting and offering to sell a controlled substance in violation of Health and Safety Code section 11352, subdivision (a), and denied the special allegations contained in the information.[2]
3. The Appointment of a Mental Health Expert and Experts Evaluation
On October 21, 2005 Morgan requested the court appoint a physician to evaluate his medical condition and competency. The trial court granted Morgans request by appointing Dr. Ronald Markman to conduct a psychiatric evaluation of Morgan. According to the courts order, Dr. Markman was to evaluate Morgans competency to continue to represent himself, his competency to stand trial and his use of appropriate medication. The court set a pretrial conference for November 17, 2005 and indicated it would consider Dr. Markmans evaluation at that time.[3]
On November 16, 2005 Dr. Markman prepared a written report concluding Morgan was competent to stand trial and to represent himself. He noted Morgan was taking a mood stabilizer and a major tranquilizer, observed he was responding well to the medication and recommended Morgan continue to be maintained on those medications for the foreseeable future.
On November 17, 2005, after considering Dr. Markmans written report, the court informed Morgan, [S]ince Dr. Markman has found you competent, what that means is, Mr. Morgan, you can go to trial. You can continue to represent yourself. Do you understand that? Morgan replied he understood. Later, at the same hearing, Morgan claimed he was currently competent but suggested, somewhat cryptically, there was a time previously when he had not taken his medication and was not competent. The court told Markman, If you are in a position where you cannot maintain competence, then it appears to the court that counsel might have to be appointed for you and your pro per status might have to be relieved. Morgan explained he was currently competent and could maintain competency by taking his medicine. The issue was not revisited.
4. The Plea Agreement and Sentence
On December 30, 2005 Morgan pleaded no contest to selling, offering to sell and transporting cocaine base. In accordance with the terms of a negotiated plea agreement, the People requested the court dismiss all of the special allegations. Satisfied Morgan was informed and understood the rights he was waiving, the court accepted the plea and sentenced Morgan to the low term of three years pursuant to the terms of the negotiated agreement.
5. The Instant Appeal and Petition for Writ of Habeas Corpus
On February 22, 2006 Morgan filed, in propria persona, a notice of appeal generally challenging the judgment of conviction without specifying the issues to be appealed. On May 30, 2006, pursuant to Morgans request, we appointed counsel to represent him on appeal.[4] On August 24, 2006 Morgans counsel filed an application in this court for leave to file a late application for certificate of probable cause or, alternatively, relief from the certificate requirement. We denied the request on August 30, 2006 and requested counsel file a supplemental letter brief as to why the appeal should not be dismissed for failure to timely apply for and obtain a certificate of probable cause in the trial court.
On September 20, 2006 Morgans appointed appellate counsel filed a letter brief urging the failure to appoint counsel in a section 1368 competency hearing is jurisdictional in nature, thereby relieving Morgan of the certificate requirement. On September 26, 2006 we permitted Morgans appeal to proceed solely with respect to the validity of the section 1368 proceeding, reserving, however, the question whether any appeal was proper on this issue without a certificate of probable cause.
On September 30, 2006 Morgans counsel filed a protective petition for writ of habeas corpus, arguing, as does Morgans appeal, that the failure to appoint counsel during a section 1368 competency proceeding violates due process.
DISCUSSION
1. The Appeal Is Dismissed for Lack of a Certificate of Probable Cause
Section 1237.5 provides that, absent statutory exceptions not relevant here, [n]o appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere. (See also Cal. Rules of Court, rule 8.304(b) [to appeal from a superior court judgment after plea of guilty or nolo contendere, defendant must file, in addition to notice of appeal, statement for issuance of a certificate of probable cause, which the superior court must rule on within 20 days after statement filed]; People v. Lloyd (1998) 17 Cal.4th 658, 663 [compliance with section 1237.5s requirement essential to maintain appeal challenging validity of guilty plea or plea of nolo contendere].)
An appeal directed to the defendants competency at the time the plea was entered is subject to section 1237.5s certificate requirements. (See People v. Mendez (1999) 19 Cal.4th 1084, 1100 [timely certificate of probable cause must be obtained as prerequisite to appeal when defendant, who entered plea of guilty or nolo contendere, contends he was mentally incompetent at time plea was entered; pre-plea mental incompetence issues go to validity of plea and thus subject to certificate requirement]; People v. Panizzon (1996) 13 Cal.4th 68, 75-76 [same].)[5]
The record shows no certificate of probable cause on this issue has been obtained. Accordingly, the notice of appeal is inoperative (Cal. Rules of Court, rule 8.304(b)(3)), and the appeal is dismissed.
2. The Petition for Habeas Corpus Alleging an Improper Section 1368 Proceeding Is Summarily Denied Because the Record Reflects No Section 1368 Proceeding Was Held
We have read and considered Morgans petition for habeas corpus asserting the trial courts failure to appoint counsel for him during a section 1368 competency hearing violated his right to due process. On the record before us, it is apparent the trial court did not hold a section 1368 competency hearing, but rather appointed an expert in response to Morgans own request to determine whether a competency hearing was warranted. (See Evid. Code, 730; People v. Visciotti (1992) 2 Cal.4th 1, 35 [courts appointment of mental health expert as part of preliminary inquiry into competence is not tantamount to declaration of doubt about competence that triggers 1368 hearing]; People v. Campbell (1987) 193 Cal.App.3d 1653, 1662; People v. Worthy (1980) 109 Cal.App.3d 514, 520.)
To the extent Morgan contends substantial evidence existed at the October 21, 2005 hearing to cast doubt on his competency and trigger his right to a section 1368 competency hearing (see, e.g., 1368; People v. Hayes (1999) 21 Cal.4th 1211, 1282), Morgan has neither stated sufficient facts to support that assertion nor provided a sufficient record in the form of either a transcript of the October 21, 2005 proceedings or appropriate declarations. (People v. Duvall (1995) 9 Cal.4th 464, 474 [petition for habeas corpus relief should state fully and with particularity facts upon which relief is sought as well as include all available documentary evidence supporting claim including pertinent portions of trial transcripts or declarations].) Because Morgan has failed to raise sufficient facts to justify relief, the petition is denied. (People v. Karis (1988) 46 Cal.3d 612, 656; In re Swain (1949) 34 Cal.2d 300, 304.)
DISPOSITION
The appeal is dismissed. The petition for habeas corpus filed September 28, 2006 is summarily denied.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
PERLUSS, P. J.
We concur:
WOODS, J.
ZELON, J.
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[1]Penal Code section 1368, subdivision (a), provides, If, during the pendency of an action and prior to judgment, a doubt arises in the mind of the judge as to the mental competence of the defendant, he or she shall state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent. If the defendant is not represented by counsel, the court shall appoint counsel. At the request of the defendant or his or her counsel or upon its own motion, the court shall recess the proceedings for as long as may be reasonably necessary to permit counsel to confer with the defendant and to form an opinion as to the mental competence of the defendant at that point in time.
Statutory references are to the Penal Code unless otherwise indicated.
[2]In addition to the charge of selling, transporting and offering to sell a controlled substance in violation of Health and Safety Code section 11352, subdivision (a), the information specially alleged Morgan had suffered two prior drug-related convictions under Health and Safety Code sections 11351.5 and 11352 and had served a prior prison term within the meaning of section 667.5.
[3]Although the courts order is memorialized in the October 21, 2005 minute order, the transcript of the October 21, 2005 proceedings is not included in the appellate record or with the exhibits filed with the petition for writ of habeas corpus.
[4]Notwithstanding our May 30, 2006 appointment of counsel, on July 10, 2006 Morgan filed an application for a certificate of probable cause in propria persona, seeking to challenge the validity of his detention and arrest. The trial court denied the application the same day in a written order. Morgans in propria persona petition to this court for a writ of mandate compelling the trial court to vacate its denial of his application for a certificate of probable cause on the detention issue was also denied.
[5]Citing People v. Laudermilk (1967) 67 Cal.2d 272, 282, a case that post-dated the 1965 passage of section 1237.5 but did not address the statute because its terms were not in effect at the time of the appeal in that case (see Laudermilk at p. 282, fn. 8), Morgan asserted in his September 20, 2006 letter brief that denial of the constitutional right to counsel is jurisdictional error that exempts his appeal from the certificate-of-probable-cause requirement. As the Supreme Court explained in People v. Mendez, supra, 19 Cal.4th at page 1094, Laudermilk stands for the general proposition that assertions of pre‑plea mental incompetence go to the validity of the plea. As such, an appeal challenging the validity of a pre-plea competency hearing is directly subject to the requirements of section 1237.5. (Mendez, at pp. 1094-1095; People v. Panizzon, supra, 13 Cal.4th at p. 76.)
