P. v. Smith

Filed 7/25/07 P. v. Smith 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Michael Smith appeals from a judgment entered after the trial court found him guilty of failing to register as a sex offender. (Pen. Code^[1],  290, subd. (g)(2).) He contends (1) the court erred when evaluating his competency to stand trial; (2) the court failed to hold a meaningful competency hearing; (3) his conviction was not supported by substantial evidence; and (4) the court abused its discretion when it declined to strike a prior strike finding. We will reject these arguments and affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On January 8, 2006, Officers Genevieve Guy and John Rink of the San Mateo Police Department contacted appellant outside a store. Appellant told the officers that he lived at 121 North Grant Street in San Mateo.

Subsequently, the officers learned that appellant was a convicted sex offender who was obligated to register his residence. Appellants last known address was in Chowchilla, and he had not registered with authorities in San Mateo.

On January 17, 2006, Detective Rick Decker of the San Mateo Police Department went with Officer Rink to the appellants North Grant Street address. They

encountered appellant outside. Appellant told the officers that he was just visiting San Mateo and that he went back and forth between there and his registered address in Chowchilla. Appellant said he was visiting his cousin Jerry Landers,^[2] and that he had been to Chowchilla as recently as two days ago.

Detective Decker knocked on the door of the North Grant Street address. Landers answered. He told Decker that appellant had been visiting since the beginning of December.

Decker returned to appellant and told him that Landers said he had been living in San Mateo for more than a month. Appellant agreed and said he went back and forth. Decker told appellant he was required to register in San Mateo and gave him the information he would need to do so.

Detective Decker returned to the police department and contacted Detective Molsbergen of the Madera County Sheriffs Office. He confirmed that appellant was a registered sex offender and that he lived in Madera County with his mother. Molsbergen said appellant had last registered in March 2005 and that he had done so late. Molsbergen recalled that he had to contact appellants mother to remind him to register. Decker also spoke with Deputy Sheriff Mona Alvarez who registered appellant in Madera County in March 2005. Alvarez said she watched appellant review and initial a form that set forth his obligations as a sex offender. Deputy Alvarez faxed a copy of the form to Decker. Appellants initials are next to a requirement that reads, If I have more than one residence address at which I regularly reside (regardless of how many days or nights), I must register all addresses and/or locations with the law enforcement agency or agencies having jurisdiction over them.

Detective Decker called appellants mother. She said she had not seen her son for two or three months, and that he had not been home since way before Christmas. Appellants mother thanked Decker for letting her know that her son was still alive.

Decker returned to the North Grant Street address. He arrested appellant and took him to the police station for an interview. Decker showed appellant the registration form he had completed in March 2005. Appellant admitted that he had read and signed the form. Appellant also admitted that he came to San Mateo in early December, however he denied that he lived there claiming he simply went back and forth.

Based on these facts, an information was filed charging appellant with failing to register as a sex-offender. ( 290, subd. (g)(2).) The information also alleged, as an enhancement, that appellant had one strike within the meaning of the three strikes law. ( 1170.12, subd. (c)(1).)

Appellants counsel expressed doubt about whether appellant was competent to assist in his defense. The court suspended the proceedings and appointed two doctors to evaluate him. After both doctors submitted reports that indicated appellant was competent, the court reinstated the proceedings.

Appellant waived a jury trial and the case was submitted to the court for decision based on documents alone. The court found appellant guilty of failing to register and found the strike allegation to be true.

Prior to sentencing, appellant filed a motion that asked the court to strike the strike finding. The court declined to do so and then sentenced appellant to the lower term of 16 months, doubled to 32 months pursuant to the strike finding.

This appeal followed.

II. DISCUSSION

A. Whether the Court Erred when Evaluating Appellants Competency

Appellants attorney was unsure whether appellant was competent to assist in his defense. She asked Dr. Jeffrey Weiner to evaluate him. Dr. Weiner, in turn, asked Dr. C. Mark Patterson, a psychologist, to assess appellant. Dr. Patterson interviewed appellant and administered several tests. Those tests showed appellants mental functioning was either low or extremely low on most scales. Based on his evaluation Dr. Patterson prepared a report for Dr. Weiner that stated as follows:

Mr. Smiths performance on the measures of intellectual ability points to a possible borderline intellectual functioning diagnosis. Whether he would qualify for a diagnosis of mild mental retardation is questionable and would require an accurate history of his adaptive functioning over his lifespan. There is converging evidence from the different measures used in this evaluation that Mr. Smith has clinically significant problems with his cognitive and intellectual functioning, including a considerable memory deficit.

Dr. Weiner reviewed Dr. Pattersons report and evaluated appellant himself. He prepared a report for appellants attorney that concluded as follows:

Mr. Smith is a 53-year old man who suffers from a significant impairment in cognitive and intellectual functioning, including considerable deficits in memory. The memory deficits are evident in ordinary conversation. In addition, objective psychological testing shows that Mr. Smith has an IQ in the borderline range and severe memory deficits across a wide range of memory tests. [] . . . [] Mr. Smith has no history of psychiatric treatment. Although there is some indication that he may have schizoid and paranoid personality features, he does not suffer from any major psychiatric disorder. The cause of Mr. Smiths brain impairment is not clear. Drug abuse, exposure to toxic chemicals, and past brain trauma are all possible contributors. To determine the cause more precisely, however, a complete medical and neurological evaluation is necessary. Without a known cause, it is also not clear whether Mr. Smiths deficits are permanent or treatable. [] In my opinion, the documented evidence of intellectual and cognitive impairment, and especially the obvious problems with memory raise a question about Mr. Smiths legal competence to continue with the proceedings. It is also likely that because of his severe memory deficits, he is not capable of carrying out the requirements to comply with registration as a sex offender, without considerable assistance.

It is not clear whether defense counsel submitted these reports to the court at that point. However defense counsel was able to convince the court that it should suspend the proceedings so appellants competence could be evaluated. The court appointed two psychiatrists to conduct that evaluation. The first, Dr. Marvin Firestone, interviewed appellant and his attorney, reviewed the reports prepared by Drs. Weiner and Patterson, and reviewed appellants medical and criminal history. Based on his review Dr. Firestone concluded as follows:

The defendant, Michael Smith, is competent to stand trial. He has alleged a history of brain injury during adolescence and has evidence of a cognitive disorder, and decrement in his intellectual functions. These disorders, although problematic by effecting his memory of facts, do not interfere with his present ability to understand the nature and purpose of the legal proceedings taken against him; nor do they render him incapable of cooperating with his attorney in the conduct of his defense in a rational manner.

Dr. Jeff Gould also evaluated appellant. He too interviewed appellant personally, reviewed appellants medical and legal history, and reviewed the reports prepared by Drs. Patterson and Weiner. Dr. Gould diagnosed appellant as suffering from a cognitive disorder, not otherwise specified. (Underscoring omitted.) However Dr. Gould believed appellant could adequately assist in his defense: It is my opinion, within a reasonable degree of medical certainty, that Mr. Smith is currently competent to stand trial. He demonstrated an imperfect, but adequate understanding of the nature of the proceedings taken against him. He also demonstrated an adequate capacity to assist counsel in the conduct of a defense in a rational manner. (Underscoring omitted.)

A trial to evaluate appellants competency was scheduled for June 9, 2006. However because both doctors who had been appointed had concluded that appellant was competent, defense counsel submitted the issue to the court on the reports. Based on those reports the court found appellant to be competent and reinstated the criminal proceedings.

Appellant now contends his conviction must be reversed because the trial court failed to have his competency evaluated by the director of the regional center for the developmentally disabled. (See  1369, subd. (a).) Appellant contends the courts failure to do so is prejudicial error per se. (See People v. Castro (2000) 78 Cal.App.4th 1402 (Castro).)

Section 1369, subdivision (a) sets forth the procedure a court should follow when it suspects that a defendant might not be competent. As is relevant, it states, The court shall appoint a psychiatrist or licensed psychologist, and any other expert the court may deem appropriate, to examine the defendant . . . . If it is suspected the defendant is developmentally disabled, the court shall appoint the director of the regional center for the developmentally disabled . . . to examine the defendant. A developmental disability is defined by section 1370.1, subdivision (a)(1)(H) as a disability that originates before an individual attains age 18, continues, or can be expected to continue, indefinitely and constitutes a substantial handicap for the individual . . . . Appellant contends he was developmentally disabled under this definition based on statements contained in Dr. Pattersons and Dr. Weiners reports that indicated his cognitive difficulties may have arisen when he was shot in the head at age 17.

It is not clear whether appellant is developmentally disabled under the statutory definition. Appellant told Dr. Firestone he was 19 when he was shot in the head, and if that is true, appellant was not developmentally disabled under section 1370.1, subdivision (a)(1)(H). On appeal, we normally view the record in the light that is most favorable to the judgment being challenged. (People v. Johnson (1980) 26 Cal.3d 557, 578 (Johnson).)

However we need not decide whether appellant was developmentally disabled because, even if he was, the courts failure to have him evaluated by the director of the regional center for the developmentally disabled was harmless.

Our Supreme Court faced this same issue recently in People v. Leonard (2007) 40 Cal.4th 1370 (Leonard). The defendant there argued his murder conviction had to be reversed because his competency was evaluated by two doctors, and not by the director of the regional center for the developmentally disabled. (Id. at p. 1387.) Like appellant here, the defendant argued the courts error was reversible per se under Castro, supra, 78 Cal.App.4th 1402. The Leonard court disagreed and overruled Castro on this point. (Leonard, supra, at p. 1389.) The Leonard court noted that the appointment of the director of the regional center for the developmentally disabled accomplishes three purposes, only one of which is relevant in a situation like this: to ensure that a developmentally disabled defendants competence is assessed by those who have expertise with such disability. (Ibid.) The Leonard court said that purpose had been satisfied: the trial courts competency determination was based on evidence from experts who were familiar with defendants developmental disability and who considered it in evaluating his competence. Dr. Schaffer, the court-appointed psychiatrist who testified that defendant was competent to stand trial, was a professor at the University of California at Davis School of Medicine and a diplomate of the American Board of Psychiatry and Neurology. Even though he did not specialize in epileptic patients, he had observed patients who had seizures similar to those of defendant. Similarly, Dr. Lynch, the neuropsychologist who testified for the defense, had treated many epileptic patients, although his primary area of expertise pertained to head injuries, not epilepsy. (Id. at p. 1390.) The Leonard court then ruled as follows: appointment of the director of the regional center for the developmentally disabled . . . is intended to ensure that a developmentally disabled defendant is evaluated by experts experienced in the field, which will enable the trier of fact to make an informed determination of the defendants competence to stand trial. Here, defendant was evaluated by doctors who possessed these qualifications, and their testimony provided a basis for the trial courts ruling that defendant was competent to stand trial. Thus, the courts failure to appoint the director of the regional center to examine defendant did not prejudice defendant. (Id. at p. 1391.)

We reach a similar conclusion here. While appellant was not evaluated by the director of the regional center for the developmentally disabled, the doctors who did evaluate him were both aware that appellant claimed to have been disabled by a brain injury in his teenage years. The record indicates Dr. Firestone was particularly well qualified to evaluate that claim. He is a doctor, an attorney, and is a Distinguished Life Fellow of the American Psychiatric Association. Dr. Firestone is board certified in several areas including psychiatry and neurology forensic psychiatry and legal medicine and he lists as one of his specialties brain injury assessment. Dr. Goulds qualifications are not described as thoroughly, however the record does show that Dr. Gould was aware that appellant claimed to have suffered a brain injury and that the doctor evaluated appellant specifically to determine whether he was developmentally disabled.

Thus, the record shows appellant was evaluated by experts who understood the disability appellant was experiencing and at least one of whom was uniquely qualified to advise the court about whether that disability might render appellant incompetent. As in Leonard, we conclude any possible error the court may have committed when it failed to order an evaluation by the director of the regional center for the developmentally disabled was harmless.

B. Whether the Court Held a Meaningful Competency Hearing

Both of the doctors who evaluated appellant prepared reports that concluded appellant was competent to assist in his defense. Accordingly, when the competency issue came up for trial, defense counsel submitted the issue to the court on the reports. Based on those reports, the court found appellant to be competent.

Appellant now contends this procedure was inadequate because it did not constitute a meaningful competency hearing and thus deprived him of due process.

Our Supreme Court rejected a nearly identical argument in People v. Weaver (2001) 26 Cal.4th 876 (Weaver). The courts analysis in Weaver is equally applicable here: Defendant contends the failure to hold a full-blown adversarial hearing on the question of his competence deprived him of due process and requires that we vacate his convictions. Essentially, defendant claims counsel could not waive a full jury trial with live witnesses. We rejected this precise claim in People v. McPeters (1992) 2 Cal.4th 1148, 1169: Section 1368 entitles defendant to a hearing on the issue of competence and he received one. Although defendants counsel, for understandable reasons, elected to waive certain available incidents of the hearing procedure, i.e., the right to jury trial and the rights to present oral testimony and to confront and cross-examine witnesses, defendant presented evidence and received an independent judicial determination of his competence to stand trial based on the stipulated record. [Citation.] [] Defendant cites no authority holding that submission to the court of the issue of competence to stand trial based on psychiatric reports is per se unconstitutional or a violation of statute. [] Of course, trial of an incompetent defendant violates an accuseds right to due process. [Citations.] But contrary to defendants arguments, neither Hale nor any of our other precedents precludes a defense attorney from waiving a jury, forgoing the right to present live witnesses, and submitting the competency determination on the psychiatric reports filed with the court. The statutory references to a hearing ( 1368, subd. (b)) or a trial ( 1369) simply mean that a determination of competency must be made by the court (or a jury if one is not waived), not, as defendant contends, that there must be a court or jury trial, at which the criminal defendants rights of confrontation, cross examination, compulsory process and to present evidence are honored by the court and counsel. (Weaver, supra, at pp. 903-904.)

Appellant contends a full evidentiary trial was required here because the report prepared by Dr. Weiner demonstrated that he was not competent. Appellant faults defense counsel for not submitting that report and Dr. Pattersons report to the court.

We reject this argument because appellant has misread the record. The reports prepared by Drs. Weiner and Patterson do not demonstrate that appellant was incompetent. Dr. Patterson did not discuss competency at all. He simply administered several tests to appellant. While Dr. Weiner at least mentioned competency, he did no more than speculate that appellants mental deficiencies raise a question about Mr. Smiths legal competence to continue with the proceedings. Dr. Weiners speculation on this point triggered the evaluations by Dr. Firestone and Dr. Gould, both of whom addressed the issue specifically and both of whom concluded that appellant was competent.

We conclude the court conducted a meaningful competency hearing.

C. Sufficiency of the Evidence

Appellant contends his conviction must be reversed because it is not supported by substantial evidence.

The standard of review we apply is familiar. We must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidencethat is, evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (Johnson, supra, 26 Cal.3d at p. 578.)

Here appellant contends the evidence was insufficient to support the conclusion that he knew he was required to register as a sex offender in San Mateo. We are unpersuaded. Less than one year prior to appellants arrest, he signed a form that described his obligations as a sex offender. On that form, appellant placed his initials next to a requirement that stated: If I have more than one residence address at which I regularly reside (regardless of how many days or nights), I must register all addresses and/or locations with the law enforcement agency or agencies having jurisdiction over them. Appellant admitted to Detective Decker that he signed the form and that he was aware of the requirement. Appellant also admitted that he had been living in San Mateo for more than a month. Based on this evidence, the trial court could reasonably conclude that appellant knew he was required to register in San Mateo.

Appellant contends the evidence was insufficient because his admissions to Detective Decker were halfhearted and ambiguous. Appellant also suggests that given his documented memory problems, he could not really be expected to remember the additional residency registration requirement . . . . Whatever weight these arguments may have had in the trial court, they are not controlling here. On appeal we must view the record in the light that is most favorable to the judgment being challenged. (Johnson, supra, 26 Cal.3d at p. 578.) If the circumstances reasonably justify the trial courts finding, the fact that the circumstances might also be reconciled with a contrary finding does not warrant a reversal of the judgment. (People v. Bean (1988) 46 Cal.3d 919, 933.)

Appellant also suggests the evidence was insufficient under People v. Barker (2004) 34 Cal.4th 345, 358 and People v. Sorden (2005) 36 Cal.4th 65, 69, where our Supreme Court discussed the situations under which an involuntary medical condition might deprive a defendant of actual knowledge of the duty to register. Those cases are not relevant here because appellant admitted he knew he was required to register any second residence. Indeed, appellant denied that he had simply forgotten to register in San Mateo. Barker and Sorden are not controlling.

We conclude appellants conviction is supported by substantial evidence.

D. Strike Ruling

Appellant contends the trial court abused its discretion when it denied his motion to strike the prior strike finding.

In People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530, our Supreme Court held that a trial court may strike a prior strike finding in furtherance of justice pursuant to section 1385, subdivision (a). In People v. Williams (1998) 17 Cal.4th 148 (Williams), the court set forth the factors a trial court should consider: [I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law . . . in furtherance of justice pursuant to . . . section 1385(a), . . . the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the schemes spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies. (Williams, supra, at p. 161.)

On appeal, a defendant may challenge an order refusing to strike a prior conviction as being irrational or arbitrary, but [i]t is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial courts ruling . . . . (People v. Myers (1999) 69 Cal.App.4th 305, 310.)

Applying these principles, we conclude the trial court did not abuse its discretion when it denied appellants motion.

First, the the nature and circumstances of appellants present felony (Williams, supra, 17 Cal.4th at p. 161) weighed against striking the strike. As the trial court stated when denying appellants motion: There are some violations that are incidental or inadvertent and come from a period as little as a few days or weeks. And if this case fell in that category, the court would grant the Romero motion. [] However . . . the court concludes that this really cant be called an incidental or inadvertent violation of the registration law. The court concludes, rather, it was a substantial violation of the requirements of Penal Code section 290. [] The evidence showed that Mr. Smith had relocated to this county for approximately six or seven weeks . . . . [] The court concludes . . . that Mr. Smith was well aware of his obligation to register and had repeatedly registered . . . and was aware and able to comply with that legal requirement.

Second, the nature and extent of appellants prior convictions and the particulars of his background (Williams, supra, 17 Cal.4th at p. 161) also support the trial courts decision. Appellant is a serial sex offender who was convicted of misdemeanor child molestation in 1990 and 1994. In late 1994 appellant committed yet another offense when he touched the vagina of a 4-year-old girl. As a result, appellant was convicted of a felony. The offense was particularly egregious because appellant tried to coerce the girl into silence by telling her he would kill her mother and grandmother. In addition and significantly, appellant was convicted of failing to register as a sex offender in 2002.

The third factor, appellants character, and prospects (Williams, supra, 17 Cal.4th at p. 161), also supports the courts conclusion. Appellants lack of character is demonstrated by the fact that he declined to take any responsibility for his molestation convictions, attributing them instead to bad luck. Appellants dim prospects for the future are highlighted by his current offense. The home in San Mateo where appellant was living was also the home of three young children. The court found this to be extremely worrisome. The fact that appellant, a serial child offender, chose to live in a home where three young children also resided, suggests appellants future prospects are dim.

In sum, the record shows the trial court evaluated the appropriate factors and reached a conclusion based on the circumstances presented. The courts conclusion was reasonable and was well within the bounds of its discretion. We conclude the court did not abuse its discretion when it declined to strike appellants prior strike finding.

III. DISPOSITION

The judgment is affirmed.

NEEDHAM, J.

We concur.

SIMONS, Acting P. J.

GEMELLO, J.

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^[1] Unless otherwise indicated, all further section references will be to the Penal Code.

^[2] Although appellant described Landers as his cousin, the two are not related.