P. v. Bernal

Filed 9/20/07 P. v. Bernal 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Juan Bernal challenges the adequacy of the procedures used to determine his competency to stand trial. We affirm.

Background

On January 30, 2006, Juan Bernal was involved in an altercation with his father in their home. Bernals brother-in-law, Richmond Police Officer Ray Hernandez, stopped by the house to meet his wife for lunch and overheard the argument. Hernandez tried unsuccessfully to defuse the situation. Bernals sister, Oralia Bejarano, arrived in response to the fathers call for help. Bernal pushed or threatened to assault Bejarano by approaching her in a fighting stance. Hernandez stepped in and pushed [Bernal] off Bernal. Bernal then took the same fighting stance toward Hernandez. He refused to heed Hernandezs attempts to calm him down and instead raised his right arm toward Hernandez. Using a leg sweep, Hernandez knocked Bernal to the ground and handcuffed him. Bernal yelled profanities at Hernandez and threatened to kill him.

Bernal was charged with obstructing an executive officer in the performance of his duties (Pen. Code,  69; count one)[1]and misdemeanor battery ( 242; count two). It was alleged that he had served a prior prison term ( 667.5, subd. (b)); that he violated a prior grant of probation ( 1203.3); and that he had prior convictions rendering him presumptively ineligible for probation ( 1203, subd. (e)(4)).

In a bifurcated proceeding, Bernal was first tried by a jury on the two offenses. The jury found him guilty of count one and of assault ( 240), a lesser included offense of count two. Bernal waived his right to a jury trial on the enhancement allegations. When court reconvened for that trial, Bernals attorney expressed concern about Bernals competency. I was aware that my client has a mental health history. The way my client is speaking to me right now . . . Im not comfortable proceeding . . . . She also stated, Mr. Bernal wants to make sure that the court knows hes concerned that theres a person whos out of custody . . . [] . . . [] whos causing him to do things in the jail and putting things in his mind . . . . The court granted a continuance to allow defense counsel time to consult with Bernal. On the continued court date, defense counsel declared a formal doubt about Bernals competency. The court immediately suspended all proceedings, appointed a psychologist to evaluate Bernal, and scheduled a competency hearing.

Jules Burstein, Ph.D., a clinical and forensic psychologist, examined Bernal and opined that Bernal was competent to stand trial. Burstein detected no evidence of a mental disorder and concluded Bernal was malingering, faking his psychiatric symptoms.

At the competency hearing, the court asked Bernal if he wished to contest the findings in Bursteins reports. After considering whether to request a second psychological evaluation, Bernal agreed to submit on Bursteins reports if the court was willing to consider two letters he had written to the court. The court and prosecutor agreed to accept the letters in lieu of Bernals testimony. The first letter made somewhat rambling references to Bernals child support obligations and conflicts he had with the mothers of his children. He mentioned that he had seen doctors, wrote that his family and parole officer [k]now about this, and asked the judge to help me to get to the bottom of this . . . since I told you its gotten worse. These comments possibly were references to his alleged mental health problems. The second letter complained about the quality of Bursteins examination. Bernal said the interview was short and included questions suggested by the district attorney.

Bernal waived his right to a jury trial on the issue of competency. Having considered Bursteins reports and Bernals letters, the court found Bernal competent to stand trial and reinstated criminal proceedings.

The court immediately proceeded with the bench trial on the enhancement allegations. The court found all three enhancements true. The court denied Bernal probation, imposed the two-year middle term for the section 69 offense, and struck the section 667.5, subdivision (b) enhancement in the interests of justice.

Discussion

The conviction or sentencing of an accused who is legally incompetent violates due process. (People v. Hale (1988) 44 Cal.3d 531, 539 (Hale), citing Pate v. Robinson (1966) 383 U.S. 375, 377.) An accused is incompetent if he is incapable, due to mental illness, of understanding the nature of the proceedings against him or of assisting in his defense. (People v. Pennington (1967) 66 Cal.2d 508, 518 (Pennington);  1367, subd. (a).) Once substantial evidence of incompetency appears, the trial court must suspend proceedings and conduct a competency hearing pursuant to section 1368. (Pennington, supra, at p. 518;  1368, subd. (c).) The court has no jurisdiction to proceed with the case until it determines the defendants competence in a section 1368 hearing, and the matter cannot be waived by defendant or his counsel. (Hale, supra, at p. 541.) Failure to hold such a hearing is reversible error per se. (Pennington, supra, at p. 521.)

An accused is competent to stand trial and be sentenced only if (1) he is capable of understanding the nature and purpose of the proceedings against him, (2) he comprehends his own status and condition in reference to such proceedings, and (3) he is capable of assisting his attorney in conducting his defense or is capable of conducting his own defense in a rational manner. [Citation.] (People v. Clark (1985) 168 Cal.App.3d 91, 94 (Clark).) A defendant is presumed competent unless he proves by a preponderance of the evidence that he is incompetent. (People v. Hightower (1996) 41 Cal.App.4th 1108, 1111-1112 (Hightower);  1369, subd. (f).) When the trial court holds a competency hearing and finds the accused competent to stand trial, we review the trial courts finding for substantial evidence. (Hightower, supra, at p. 1111.) We view the record in the light most favorable to the finding. (People v. Campbell (1976) 63 Cal.App.3d 599, 608.)

Bursteins reports provided substantial evidence to support the courts finding of competency. Burstein stated his professional opinion that nothing in Bernals appearance, demeanor, speech or behavior suggested he was suffering from a mental disorder. He opined that Bernals claimed hallucinations and other symptoms were not credible. He noted that Bernals mental health record did not support his claim of incompetency. Bernal denied any psychiatric history. Jail medical personnel described Bernal as alert, friendly and engaging even when he was seeking help for his claimed hallucinations. Bernal told jail medical staff that he was able to cope with the voices without intervention, and that he had stopped taking prescribed medication for the hallucinations because it made him too tired. In Bursteins professional opinion, it was not credible that a person suffering from fear-inducing auditory hallucinations would forgo medication due to the side effect of fatigue. Burstein had affirmative evidence that Bernal planned to fake psychiatric symptoms: two of Bernals sisters told Burstein they heard him say shortly after his detention that if he faced prison time he would claim to hear voices. Finally, Burstein cited evidence that Bernal suffered from chronic alcoholism and substance abuse (methamphetamines or cocaine), which would account for his erratic behavior and troubled personal history. Bernal had an opportunity to request a second psychiatric evaluation to contest Bursteins findings, but he expressly declined to request such an evaluation even though his attorney advised him he was likely to be found competent if he submitted on Bursteins reports. The letters Bernal submitted to the court consisted of rambling observations and provided no concrete evidence of incompetency. The letters did not undermine Bursteins reports as substantial evidence in support of the trial courts finding.

Bernal argues that Bursteins reports were constitutionally inadequate because it did not expressly address whether Bernal was capable of understanding the proceedings, understood his own status and condition, and was capable of assisting his attorney. (See Clark, supra, 168 Cal.App.3d at p. 94.) Because Burstein concluded that Bernal was malingering and was not suffering from any sort of mental defect, it was not necessary for him to define the extent to which any mental defect affected Bernals ability to obtain a fair trial.

Bernal also argues Bursteins reports showed bias and thus provided an unreliable factual basis for the courts competency finding. He claims certain statements in the reports, such as Bursteins statement that Bernal lied when he denied substance abuse, are speculative and unsupported by evidence. For the reasons already stated, we conclude Bursteins reports included findings and opinions supported by citation to reliable sources that constitute substantial evidence supporting the courts competency finding.

Bernal takes issue with the tone of Bursteins reports, which he characterizes as the snide commentary of a biased advocate. While the tenor of the reports is not one of dispassionate professional detachment, Bursteins choice of words can be attributed to his conclusion that Bernal was feigning his psychiatric symptoms and that his claim of incompetency was not subject to serious dispute. The tone of the reports does not undermine the weight of the reports as substantial evidence supporting the trial courts competency finding.

In any event, Bernal forfeited his right to challenge the adequacy of Bursteins reports when he expressly declined to request a second evaluation and submitted the matter on the reports and his letters to the court. Having submitted the competency determination . . . defendant may not now relitigate that question with arguments he did not make below. (People v. Weaver (2001) 26 Cal.4th 876, 904.) Bernal argues that a challenge to the adequacy of procedures used to determine a defendants competency is not subject to waiver or forfeiture. He cites People v. Castro (2000) 78 Cal.App.4th 1402, 1418-1419 (Castro), which held that a trial courts failure to appoint the director of the regional center for the developmentally disabled to examine a defendant suspected of having a developmental disability, as required by statute, was per se reversible error because the court lacked jurisdiction to preside over the criminal proceedings unless it held a second hearing. In People v. Leonard (2007) 40 Cal.4th 1370, the Supreme Court overruled Castro on this point, holding that failure to comply with the statutory procedures is subject to harmless error analysis. (Leonard, supra, at p. 1391 & fn. 3.) Similarly, we see no reason why the forfeiture rule would not apply to Bernals appellate arguments that were not raised below. (See Weaver, supra, at p. 904.)

Disposition

The judgment is affirmed.

NEEDHAM, J.

We concur.

JONES, P. J.

SIMONS, J.

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[1] All statutory references are to the Penal Code unless otherwise indicated.