P. v. McNeal
Filed 9/4/07 P. v. McNeal CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. BRIAN STEVEN McNEAL, Defendant and Appellant. | D048681 (Super. Ct. No. MH99731) |
APPEAL from a judgment of the Superior Court of San Diego County, Kerry Wells, Judge. Affirmed.
Brian Steven McNeal was found incompetent to stand trial (Pen. Code,[1] 1368) on 12 felony counts involving residential burglary ( 459/460), grand theft ( 487, subd. (a)), and receiving stolen property ( 496, subd.(a)). The court ordered McNeal
committed to Patton State Hospital for a maximum of three years.
McNeal appeals, contending the court had notice of his opposition to being found incompetent but then ignored the notice and erroneously assessed his mental health based on the opinion of one psychiatrist, rather than two, as required by section 1369, subdivision (a). We affirm the judgment.
FACTS
McNeal was charged with multiple counts of burglary, grand theft, and receipt of stolen property stemming from events in July through September 2004. In November 2004, a mental health evaluation found McNeal incompetent to stand trial and criminal proceedings were accordingly suspended. In April 2005, another mental health evaluation found McNeal incompetent to stand trial.
On January 13, 2006, McNeal's mental health again became an issue. At the proceedings, McNeal's counsel requested a mental health evaluation under section 1368. McNeal's unresponsiveness to basic questions and his mannerisms caused the court to order an evaluation. Two psychiatrists evaluated McNeal on January 18 and 20, 2006. Both found him competent to stand trial, but noted he would probably be an uncooperative client. Criminal proceedings were resumed.
On April 19, 2006, during a Marsden[2]hearing, the court again expressed doubt about McNeal's mental health. At the hearing, McNeal read aloud a statement alleging his counsel to be part of a conspiracy with the district attorney and judge. The parties, he alleged, were conspiring to kill him through medication and thereby "silence" him to "diminish his credibility as to the Court's exodus on the People for fruitless as he would stand even by conspiring court officials to show otherwise."
The court then questioned McNeal on whether he knew why he was in court and whether he knew the nature of the charges against him. McNeal acknowledged he was facing charges of burglary but then asserted the charges were "all color of law, fix of the law proceedings" and argued the court did not have jurisdiction. McNeal then stated his stomach was causing him pain and, when asked why, responded that he had attempted to kill himself the week before by swallowing a toothbrush, a pencil, and a spoon.
McNeal continued, expressing a desire to go to trial so he might tell the jury of "the corruption" and "what the Court's done to me and other conspiring working against me." When asked why the charges of "corruption" and "conspiracy" were relevant to his criminal charges, McNeal responded "it's the very basis of the court" and "[i]f the court were to gain anything from a trial, it would be the fruit from the poisonous tree."
Counsel for McNeal stated her client had "basically been on strike against [her] for at least the last six weeks." The court expressed its concern to McNeal over his inability to cooperate with his counsel and questioned whether he was competent to stand trial. The court then suspended the criminal proceedings to evaluate McNeal for competency under section 1368.
McNeal asked the court to provide a private doctor for the evaluation, as he felt the doctors "from the mental health" were also conspiring against him. The trial court accommodated McNeal, noting it would recommend an independent doctor provide the examination.
Dr. David Naimark, a San Diego Community Mental Health Services facility forensic psychiatrist, examined McNeal on April 28, 2006. Dr. Naimark concluded there was "overwhelming evidence, both in review of the records provided and in [his] evaluation of [McNeal], to suggest he is presently severely mentally ill and out of touch with reality." Dr. Naimark did note McNeal was found competent for trial in January, but since "has apparently decompensated as a result of the stress of the jail setting."
On May 15, 2006, the trial court convened the section 1368 proceeding. After both the prosecutor and appointed counsel stipulated to Dr. Naimark's qualifications and the receipt of his report into evidence, the trial court found McNeal was not mentally competent to stand trial. The court committed McNeal to Patton State Hospital for three years and ordered the involuntary administration of antipsychotic medication to render him competent to stand trial.
DISCUSSION
McNeal contends the court had notice of his opposition to being found incompetent, and because of his opposition, the court was obligated to appoint two competency evaluators to assess his competency under section 1369, subdivision (a).
For the purpose of this case, the relevant part of section 1369 provides: "In any case where the defendant or the defendant's counsel informs the court that the defendant is not seeking a finding of mental incompetence, the court shall appoint two psychiatrists, licensed psychologists, or a combination thereof." ( 1369, subd. (a), italics added.)
In People v. Lawley (2002) 27 Cal.4th 102, 133, the California Supreme Court stated "[s]ection 1369, subdivision (a) plainly requires the 'defendant or the defendants counsel' to 'inform[] the court' that the defense is not seeking a finding of incompetence in order to trigger the required appointment of a second mental health expert." (Italics added.) Additionally, the California Supreme Court rejected the defendant's assertion that through "his insistence on a court trial, a new lawyer, or the right to proceed in propia persona," the defendant had informed the lower court he was in opposition to a finding of incompetence. (Ibid.)
McNeal does not contend he or his counsel explicitly informed the trial court he was opposed to a finding of incompetence. Rather, McNeal relies on several statements he made to the court as evidence of his opposition. The statements include: his protests against being sent to the hospital; his belief he does not have psychiatric problems; his protest against being forcibly medicated; and his desire to proceed to trial so he could inform the jury of the court's "corruption."[3]
As detailed in Lawley, supra, 27 Cal.4th 102, circumstantial evidence of opposition cannot be thrown together ad hoc, as McNeal attempts with his highlighted statements. A court is not required to infer a defendant's opposition from a series of statements or events; rather, the court must be clearly informed of the opposition by the defendant or his counsel.
Even if the statements highlighted by McNeal are accepted as opposition to the section 1368 incompetency proceedings, several other statements and events in the record contradict his contention he was opposed to a finding of incompetence. For instance, at the conclusion of McNeal's Marsden hearing on April 19, 2006, rather than expressing opposition to the court's decision to suspend criminal proceedings for a section 1368 mental health evaluation, McNeal instead requested that a "private doctor" provide the evaluation, as it was his feeling "the doctors from mental health" were conspiring against him.
As further evidence the court had been informed of his opposition to being found incompetent, McNeal cites a form filed by the court which allegedly appoints two psychiatrists, Mark Kalish and Paul Strauss, to evaluate his mental health. McNeal deduces this alleged appointment of two psychiatrists to be evidence he successfully informed the court of his opposition to being found incompetent.
The evidence offered for this assertion does not support McNeal's interpretation. Specifically, the form reads: "A forensic psychiatrist from the staff of San Diego Community Mental Health Services facility, or Mark Kalish, M.D., and Paul Strauss, M.D., is/are appointed to make a personal examination of the defendant directed toward ascertaining whether the defendant is presently mentally competent."(Italics added.) The use of the word "or" before the names of the two M.D.'s stipulates that the mental evaluation of McNeal could be conducted by either a psychiatrist of a local mental health facilityor the two appointed M.D.'s. Rather than being evaluated by Dr. Kalish and Dr. Strauss, McNeal was eventually evaluated by Dr. Naimark. Thus, the form indicates the court took notice of McNeal's desire to be evaluated under section 1369, as the court merely listed two M.D.'s as an alternative to examine McNeal in the event he was not evaluated by a forensic psychiatrist of the San Diego Community Mental Health Services facility. McNeal was evaluated by such a member, thus eliminating the need for Dr. Kalish and Dr. Strauss.[4]
Furthermore, at the May 15, 2006 competency hearing, neither McNeal nor his counsel made any objections to the court relying on a single psychiatric evaluation. Instead, McNeal's counsel stipulated to the qualifications of Dr. Naimark and agreed the psychiatrist's evaluation should be admitted into evidence. To preserve the issue for appeal, McNeal would have had to raise an objection to the court's decision to assess McNeal's mental health on the opinion of one psychiatrist. (See People v. Snow (2003) 30 Cal.4th 43, 78.) The issue is thereby waived.
DISPOSITION
The judgment is affirmed.
McCONNELL, P. J.
WE CONCUR:
BENKE, J.
McDONALD, J.
Publication courtesy of California pro bono legal advice.
Analysis and review provided by La Mesa Property line Lawyers.
[1] Statutory references are to the Penal Code.
[2]People v. Marsden (1970) 2 Cal.3d 118.
[3] Several of these statements were made in the January 2006 competency proceeding and, as this appeal concerns the May 2006 proceedings, are not applicable to the question before this court.
[4] McNeal notes he was evaluated by two psychiatrists during his January 2006 competency proceedings, contending this is evidence the court had previously noted and accommodated his objections to being found incompetent under section 1368. The subject of this appeal is the May 2006 competency proceedings, not the January 2006 proceedings.
