P. v. Hopkins

Filed 6/22/07 P. v. Hopkins CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

Appellant Keith Edward Hopkins was convicted, pursuant to a plea of no contest, on two counts of committing a lewd act on a child. (Pen. Code,  288, subd. (a).) He contends the trial court violated his due process rights by not scheduling this matter for a competency hearing. We reject this contention and affirm.

I. FACTS AND PROCEDURAL HISTORY

The legal issue raised on appeal does not relate to the facts of the offenses. In brief, appellant committed numerous lewd acts on a young boy, identified here as John Doe, who was then 13. The lewd acts occurred on various occasions, including when appellant was babysitting John Doe while his mother was at the hospital. In a subsequent interview with the police, appellant admitted at least two of the molestations.

On March 24, 2006, appellant was charged with four violations of Penal Code section 288, subdivision (a).[1]

A preliminary hearing was held on April 28, 2006. On July 17, 2006, after the preliminary hearing had been held, appellant entered a plea of no contest to two counts of violations of section 288, subdivision (a), with the other two counts dismissed pursuant to a plea bargain. The matter was set for a sentencing hearing on August 14, 2006.

At the sentencing hearing, the trial court considered the probation report and the arguments of counsel. In the midst of that hearing, after the court had sentenced appellant to serve five years in prison, appellant expressed dissatisfaction with his counsel, and the sentencing hearing was adjourned while the trial court conducted a hearing on a motion brought by appellant to discharge his counsel, under the provisions of People v. Marsden (1970) 2 Cal.3d 118 (Marsden). The motion was denied. The sentencing hearing was then reconvened, and the court concluded its sentencing of appellant.

II. DISCUSSION

Appellant contends the trial court violated his due process rights by sentencing him without first scheduling this matter for a competency hearing. We find no error.

A defendant is deemed mentally incompetent 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. ( 1367, subd. (a); see also Cooper v. Oklahoma (1996) 517 U.S. 348, 354 [It is unconstitutional to try a defendant unless he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding . . . as well as [a rational and] factual understanding of the proceedings against him.].)

Here, we exercise a deferential standard of review. Reversal is required only if the trial court abused its discretion by not ordering a competency hearing, or if a competency hearing was required by law. (People v. Pennington (1967) 66 Cal.2d 508, 516-517 (Pennington), interpreting Pate v. Robinson (1966) 383 U.S. 375, 385-386 (Pate).) A competency hearing is required to be conducted in the trial court as a matter of law if a defendant has presented substantial evidence of incompetency. (Pennington, supra, at pp. 516-517; People v. Welch (1999) 20 Cal.4th 701, 738-740 (Welch); People v. Jones (1991) 53 Cal.3d 1115, 1152 (Jones); People v. Stankewitz (1982) 32 Cal.3d 80, 92.)

Evidence in this context is substantial if it raises a reasonable doubt about the defendants competence to stand trial. (Welch, supra, 20 Cal.4th at p. 738; People v. Frye (1998) 18 Cal.4th 894, 952; People v. Kelly (1992) 1 Cal.4th 495, 542.) By contrast, evidence that merely raises a suspicion that the defendant lacks present sanity or competence but does not disclose a present inability because of mental illness to participate rationally in the trial is not deemed substantial evidence requiring a competence hearing. (People v. Deere (1985) 41 Cal.3d 353, 358 (Deere), disapproved on other grounds in People v. Bloom (1989) 48 Cal.3d 1194, 1228, fn. 9.)

In addition, if a doubt arises in the courts mind as to the defendants mental incompetence, the court must ask defense counsel whether he believes the defendant is mentally incompetent. ( 1368, subd. (a).) If defense counsel believes the defendant may be mentally incompetent, a competency hearing must be held pursuant to sections 1368.1 and 1369. ( 1368, subd. (b).) Even if defense counsel believes the defendant to be competent, the court has discretion to order such a hearing. ( 1368, subd. (b).) If a hearing is ordered, the criminal proceedings are suspended until the defendants mental competence is determined, and the court appoints a psychiatrist or licensed psychologist, and any other expert the court may deem appropriate, to examine the defendant. ( 1368, subd. (c), 1369, subd. (a).)

In the present case, appellant contends that a need for a competency hearing arose from a notation on the probation report prepared for appellants upcoming sentencing. That report notes under the heading, DEFENDANTS STATEMENT that appellant expressed remorse for everything. In addition, in the PERSONAL DATA section of the report, a box next to the word Yes and the phrase Mental Health Issues was checked by the probation officer, and a notation appears next to the word Diagnosis stating, Mentally incompetent. Following these notations is the phrase Alcohol Abuse and another box checked next to the word Denies.

Appellant contends the notations on the probation report regarding his asserted incompetency constituted substantial evidence of his incompetence, requiring a formal competency hearing. We disagree. These brief notations are obviously not intended to be reports to the court of the outcome of a medical examination by the probation officer, and are apparently derived from an interview with appellant and information provided by him to the probation officer. Although appellant may have told the probation officer he was mentally incompetent, that is a mere contention, and not evidence of incompetency sufficient to require a competency hearing under section 1368. (See Deere, supra, 41 Cal.3d at p. 358, Welch, supra, 20 Cal.4th at p. 740; Jones, supra, 53 Cal.3d at p. 1152.)[2]

Appellant contends that because a probation report is presumed to be an inherently reliable source, the notations in the probation report required that a competency hearing be conducted. (Cf. People v. Arbuckle (1978) 22 Cal.3d 749, 755 [Cross-examination of the author of a probation report was not required, because the report was inherently reliable, and any inaccuracies could be challenged by defendant at the sentencing hearing.].) The probation report may be a presumptively reliable source in the sense that it probably does accurately reflect what the probation officer learned from appellant. However, where the criminal defendant is the ultimate source of the information in issue, rather than another more trustworthy, professional and neutral source, the information contained in the report is obviously not determinative. Otherwise, every claim by a defendant as to his incompetence, regardless of his true mental competence, would be sufficient to require such a hearing. The law requires substantial evidence, not a mere claim, in order to mandate such a hearing. (See Deere, supra, 41 Cal.3d at p. 358; Welch, supra, 20 Cal.4th at pp. 738-740; Jones, supra, 53 Cal.3d at p. 1152.)

Any doubt on this score is dispelled by the record of the sentencing hearing, in which neither counsel nor the court voiced any concerns about appellants mental status. We also note that the record contains a sealed reporters transcript of the hearing on the motion brought by appellant regarding his counsel under the provisions of Marsden, supra, 2 Cal.3d 118, which was held in the midst of the sentencing hearing. Obviously, the Marsden hearing was not attended by the prosecution, and only appellant, his counsel, and the trial court were present.

At that Marsden hearing, appellant complained that his counsel was prejudiced against him, because counsel had referred to him as manipulative. Appellant also raised the issue of possibly asserting a mental incompetency defense, based on appellants receipt of social security benefits due to a mental disability.

Defense counsel stated that he did not remember referring to appellant as manipulative but apologized if he had done so. With regard to appellants claims that he was mentally incompetent, counsel explained that he had retained a doctor to examine appellant and determine whether he was incompetent. The doctor had found that appellant was sane and competent, and in essence knocked out any potential defense for Mr. Hopkins. Counsel had also investigated other facts such as appellants receipt of social security benefits due to a disability. Counsel had disclosed these facts, including the doctors report, to the prosecution, and had received a plea offer that appellant had accepted. Thus, the matter of appellants possible claims of incompetency had been investigated, and had been found to be insubstantial.

These facts tend to explain why neither defense counsel nor the trial court sought to raise the question of appellants possible incompetency at the time of the sentencing hearing, and these facts reinforce our conclusion that the brief notations made in the probation report did not constitute substantial evidence of incompetency. (See Deere, supra, 41 Cal.3d at p. 358; Welch, supra, 20 Cal.4th at pp. 738-740; Jones, supra, 53 Cal.3d at p. 1152.)

This court would come to the same conclusion even without the evidence from the Marsden hearing.

III. DISPOSITION

The judgment of conviction is affirmed.

NEEDHAM, J.

We concur.

SIMONS, Acting P. J.

GEMELLO, J.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line attorney.

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

[2] We contrast the brief and conclusory notations in the probation report with the evidence found to be substantial in Pennington, supra, 66 Cal.2d at pages 514, 519, where a psychologist testified that the defendant was not competent, and was grossly insane. (Id. at p. 514.) No such evidence was presented in this case. Similarly, the evidence found to be substantial in Pate, consisted of the testimony of four witnesses regarding the defendants long history of irrational behavior, including shooting himself in the head and murdering his young son, together with records from a state mental hospital where he had been confined, regarding hallucinations of voices, snakes, elephants, and other animals. (Pate, supra, 383 U.S. at pp. 378-381, 385.) Once again, no comparable evidence was placed in the record of the present case.