Filed 4/18/17 P. v. Robinson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

STEPHEN C. ROBINSON,

Defendant and Appellant.
D070196



(Super. Ct. No. SCN309476)

APPEAL from a judgment of the Superior Court of San Diego County, Sim von Kalinowski, Judge. Affirmed.

Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Kristine Gutierrez and Allison V. Hawley, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
A jury convicted Stephen C. Robinson of attempted murder (Pen. Code, §§ 187, subd. (a), 664; count 2), shooting at an inhabited dwelling (§ 246; count 3), and assault with a firearm (§ 245, subd. (a)(2); counts 4 & 5). The jury also found true allegations he personally used a deadly weapon (§ 1192.7, subd. (c)(23); counts 2-5), personally used a firearm (§ 12022.5, subd. (a); counts 2, 4 & 5), and intentionally and personally discharged a firearm (§ 12022.53, subd. (c); count 2). Robinson admitted having a prior conviction, which the court determined qualified as both a prior serious felony conviction (§§ 667, subd. (a)(1), 1192.7, subd. (c)) and a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12).
After the trial and before sentencing, the court declared a doubt about Robinson's mental competency and suspended the criminal proceedings. The parties subsequently stipulated Robinson was not mentally competent for sentencing. After Robinson's mental competency was restored and the criminal proceedings resumed, Robinson brought a motion for new trial on the ground he lacked mental competency during the trial. The court denied the motion, finding Robinson had not met his burden of proof on the issue, and sentenced Robinson to a total term of 46 years and 4 months in prison.
Robinson appeals, contending we must reverse his conviction because the court failed to retrospectively declare a doubt as to his trial competency. Alternatively, he contends we must reverse the judgment because the court abused its discretion in denying his motion for new trial. We are not persuaded by either contention and affirm the judgment.
II
BACKGROUND
A
Prosecution Evidence
Robinson and Robinson's mother lived across the street from the victim and the victim's mother. The two households had a strained relationship and, for a time, the victim and the victim's mother had a restraining order against Robinson, in part because Robinson often made vulgar and threatening remarks to the victim and the victim's mother. He also took videos and photos of them and their visitors.
One day, the victim's mother was sitting out on her front balcony, which is surrounded by a bamboo screen, when the victim, then a teenager, came home. The victim, who is taller than the bamboo screen, walked back and forth from the balcony to the inside of the house, while "huffing and puffing" about a financial concern. The victim's mother heard someone from across the street yell, "punk." Shortly after that, Robinson fired four shots at the victim's home. One of the shots splintered the bamboo screen. A piece of the screen hit the victim's mother, cutting her above her eye.
The victim dragged his mother inside and they ran to the back of their home. When they reached the back, the victim's mother called 911. She told the dispatcher one of her "crazy neighbors" was shooting at her home. While she was on the phone, the victim retrieved a shotgun and a revolver, returned to his mother, and watched the hallway. At one point, he went onto the rear balcony and told another neighbor to stay down. Although he had the revolver in his hand when he went to the rear balcony, he never took any weapon onto the front balcony, either before or after Robinson fired the four gunshots.
Sheriff's deputies found four empty casings and a gun loaded with two bullets in Robinson's home. They also found a recording device and approximately 40 to 50 videos of the victim's home. In one of the recordings, Robinson described his activities as "documenting" and accused the victim and the victim's mother of spying on him, making accusations against him, and selling drugs. In another recording, Robinson claimed he fired three or four rounds because the victim flashed a gun at him.
Robinson later told sheriff's investigators the victim pointed a handgun at him. He told the victim to put the gun down. When the victim did not put the gun down and instead threatened to shoot him, he got a revolver and fired four rounds to suppress the victim's fire.
Investigators found no audio or video surveillance equipment in the victim's home. They also found no evidence the victim had fired at Robinson or Robinson's home.
Defense Evidence
Robinson's mother believed the victim's mother was having her followed and trying to have her killed. She also believed the victim's mother had surveillance cameras pointed at her house and that the victim's mother was posting things about Robinson on the internet.
About a month before the shooting, Robinson's mother started keeping a loaded gun on her couch because the victim and the victim's mother had threatened her and Robinson. On the day of the shooting, Robinson told her the victim had pointed a gun at him and she heard Robinson repeatedly tell the victim "to put the gun down" before she heard gunshots. After the shooting, she heard Robinson say he "just lost it." She was frustrated sheriff's deputies had not done anything to address her concerns about the victim and the victim's mother. She believed the deputies had not done anything because the victim's mother knew some of the deputies. She also believed Robinson "took the law into his own hands that day" to protect them.
B
1
About three weeks after the trial, the deputy probation officer who prepared the probation officer's report for the sentencing hearing interviewed Robinson. In the report, the officer noted, "The defendant made numerous [nonsensical] statements during the probation interview. Several of his statements did not appear to be realistic. His demeanor alternated between annoyed, confrontational and cooperative. The defendant required constant [redirection] in order to stay on topic during the interview and did not appear to understand the gravity of the situation." The report then provided examples of some of Robinson's concerning statements, including that "City Hall supported him" and "President Obama had spoken on his behalf." The report also noted, "[Robinson] claimed that his attorney had not allowed him to offer a defense of himself during the trial or provide [j]urors proof of his innocence."
At a subsequent hearing, Robinson's trial counsel asked the court to have Robinson's mental competency evaluated. Counsel explained he had met with Robinson and, "[b]ased on my meeting, based on the statements contained within [the] probation [report], based on my history with this case, I do have a doubt, a very real doubt, as to his ability to assist me and his ability to, at this point in the process, understand exactly what's going on with the procedures."
The court agreed, stating, "I also reviewed the probation report and the statements attributed to [Robinson] in that. I would concur that there is a doubt that has arisen concerning his present mental competency." Consequently, the court suspended criminal proceedings pending "a determination of [Robinson's] present mental competency."
Some months later, Robinson's trial counsel later declared a conflict. The court appointed new counsel for the posttrial proceedings.
2
a
Meanwhile, over the course of a year, Robinson was examined by two court psychiatrists and two defense psychologists. Robinson was first evaluated by a court psychiatrist, who diagnosed him with an unspecified psychotic disorder in the delusional disorder spectrum. The psychiatrist believed he had been tasked with deciding Robinson's competency for trial. The psychiatrist determined Robinson was not competent to stand trial because he was delusional and paranoid regarding his trial counsel and "cooperation with an attorney is so vital at the competency-to-stand-trial phase." The psychiatrist also believed Robinson did not sufficiently understand the nature and purpose of the criminal proceedings.
The psychiatrist subsequently learned he had been tasked with deciding Robinson's competency for sentencing, not his competency for trial. He also learned that some of Robinson's ostensibly delusional statements were actually true. Consequently, he evaluated Robinson a second time. After the second evaluation, the psychiatrist concluded that, while Robinson still had delusional beliefs, he was competent to be sentenced, which in the psychiatrist's view did not require him to function quite as highly as he needed to function at trial. The psychiatrist later clarified Robinson was also competent to stand trial at that time.
b
A defense psychologist then evaluated Robinson, but had difficulty obtaining Robinson's cooperation. The psychologist ultimately concluded Robinson was not currently competent because Robinson had pronounced mental health difficulties, which clearly interfered with his ability to present a defense in a rational manner and to cooperate with his attorney.
c
A second court psychiatrist then evaluated Robinson. The second psychiatrist concluded that while "[Robinson] is delusional, he is competent to be sentenced in this case."
d
A second defense psychologist then evaluated Robinson. The psychologist opined, " ... Robinson is clearly capable of understanding and appreciating the legal system and its various components. He is quite capable of understanding his specific legal circumstances and should be able to assist counsel if it were not for his unusual level of distrust of the system, a significant aspect of his delusional, paranoid functioning. Nonetheless, ... Robinson is unlikely to assist counsel because his mental disorder is such that he would be unable to appreciate the need for such cooperation. In other words, his paranoid and delusional thinking would create significant barriers to both communication and cooperation between ... Robinson and his attorney."
e
Finally, the first court psychiatrist evaluated Robinson once again in preparation for a trial on Robinson's mental competency. The psychiatrist determined Robinson had decompensated and was no longer competent for sentencing. The psychiatrist later clarified Robinson was also not competent to stand trial.
f
The parties subsequently stipulated and the court found Robinson was not competent for sentencing. The court committed Robinson to a state hospital for up to three years.
3
a
Approximately a month after Robinson's admission to the state hospital, a hospital psychiatrist found him restored to competency and the court conducted a hearing on the matter. The second defense psychologist evaluated Robinson again. During the evaluation, Robinson repeatedly expressed a belief the prosecutor and his posttrial counsel were colluding to keep him "in the system." He described his posttrial counsel as "manipulative and sneaky." He also expressed beliefs that judges thought the charges against him were false, he had a fraudulent trial, and he should be released. He did not believe he would go to prison, but instead believed he could go home as soon as he obtained a gold sheet of release.
The psychologist diagnosed him with a delusional disorder and believed he was not competent for sentencing because of his "inability to understand his own status and condition in the criminal proceedings" and "his inability to consult with his attorney." For him to be competent, the psychologist believed some specific delusions would have to disappear, including "the specific delusions that interfere with his ability to work with his attorney, his specific delusions that interfere with his ability to understand that he's not getting out, that he's probably going to be sentenced to something and he needs to participate in order to show that he needs a reasonable sentence." The psychologist further believed that, had Robinson been in the same state before trial, he may have been incompetent for trial as well because there is less a defendant has to do to cooperate with a lawyer for sentencing than for trial.
b
The first court psychiatrist also evaluated Robinson again and determined Robinson was competent for both trial and for sentencing. According to the psychiatrist, although Robinson was still delusional, his delusional thinking was less fixed and more malleable. He also believed the medication Robinson received at the state hospital was keeping his window of competency open longer.
c
The psychiatrist who treated Robinson at the state hospital testified Robinson was "marginally competent" when he arrived at the hospital. The psychiatrist diagnosed him with delusional disorder and treated him with an antipsychotic medication. After about a month of treatment at the hospital, Robinson became more flexible and open to suggestions contrary to his delusions, which is usually the best that can be expected from someone with a delusional disorder. He told the psychiatrist he thought he was competent to stand trial and wanted to go back to court. The psychiatrist believed he was competent enough to resume criminal proceedings and to be sentenced.
The psychiatrist stated he did not have enough data to know whether Robinson was incompetent during trial; however, the psychiatrist explained "delusional disorder doesn't usually turn on like a light. It's something that you've had for a while. So if he was really delusional during his sentencing phase, it probably was something that was going on before that." The psychiatrist further explained, "[I]n sentencing, the requirements of what you need to do are so much less than during the trial in chief that if he had some condition we know is chronic and was likely going on before and he really didn't have what it takes during the sentencing phase, it would make you wonder that. It would be something worth consideration at least."
d
At the conclusion of the hearing, the court found Robinson had not established by a preponderance of the evidence he continued to be mentally incompetent. Consequently, the court reinstated the criminal proceedings.
C
When the criminal proceedings resumed, Robinson filed a motion for new trial on the ground he lacked mental competency for trial and his trial counsel provided ineffective assistance by failing to raise the issue during trial. After considering the parties' evidence and arguments, which included the prior reports and testimony of the mental health professionals who evaluated Robinson, the court found Robinson had not met his burden of establishing entitlement to a new trial and denied the motion.
The court gave a lengthy explanation of the bases for its decision. Among the bases, the court found there was no direct evidence Robinson had difficulty during trial understanding the nature of the proceedings or assisting his counsel conduct a defense in a rational manner. The court never observed anything during trial to suggest otherwise, none of the four different public defenders who represented Robinson before and during trial ever expressed a doubt as to Robinson's competency, and the experienced trial judge who presided over and had a lengthy interaction with Robinson at a pretrial hearing never expressed a doubt as to Robinson's competency.
In addition, the reports and testimony of the mental health professionals indicated the impact of Robinson's delusional disorder on his competency fluctuated from time to time. Thus, Robinson's posttrial mental incompetency did not necessarily indicate Robinson was mentally incompetent before or during trial.
Regarding Robinson's ability to understand the criminal proceedings, the court found Robinson had sufficient intellectual capacity to understand the trial proceedings and did understand them, notwithstanding his dissatisfaction with the trial result. Regarding Robinson's ability to assist his trial counsel present a defense in a rational manner, the court found the only defense issues in the case were whether Robinson acted in self-defense or imperfect self-defense. Robinson's trial counsel was able to rationally present these defenses, indicating Robinson's mental state was not an impediment.
III
DISCUSSION
A
Robinson contends we must reverse the judgment because the court failed to retrospectively declare a doubt about his trial competency. Assuming without deciding the court had the authority to retrospectively declare a doubt about Robinson's trial competency (contra, People v. Day (1988) 201 Cal.App.3d 112, 120, not followed on another point in People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 64-66), we conclude Robinson has not established the court erred by failing to do so in this case.
"A criminal trial of an incompetent person violates his or her federal due process rights. [Citation.] The state Constitution and section 1367 similarly preclude a mentally incompetent defendant's criminal trial or sentencing. (§ 1367, subd. (a)[; citation].) A defendant is incompetent to stand trial if the defendant lacks ' "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding ... [or] a rational as well as factual understanding of the proceedings against him." ' [Citations.] "Under section 1368, subdivision (a), a judge must state on the record any doubt that arises in her mind as to the mental competence of the defendant, and either seek defense counsel's opinion as to the defendant's mental competency, or appoint counsel if the defendant is unrepresented. The decision whether to order a competency hearing rests within the trial court's discretion, and may be disturbed upon appeal 'only where a doubt as to [mental competence] may be said to appear as a matter of law or where there is an abuse of discretion.' [Citation.] When the court is presented with 'substantial evidence of present mental incompetence,' however, the defendant is 'entitled to a section 1368 hearing as a matter of right.' [Citation.] On review, our inquiry is focused not on the subjective opinion of the trial judge, but rather on whether there was substantial evidence raising a reasonable doubt concerning the defendant's competence to stand trial. [Citation.] Evidence may be substantial even where it is contested or presented by the defense. [Citation.] A trial court reversibly errs if it fails to hold a competency hearing when one is required under the substantial evidence test." (People v. Mickel (2016) 2 Cal.5th 181, 194-195.)
Here, there is substantial evidence Robinson may have suffered from delusional disorder during the trial. However, there is not substantial evidence the disorder rendered him incompetent during the trial. Robinson's trial counsel never expressed a doubt as to Robinson's trial competency and none of Robinson's on-the-record interactions with the court during trial indicated Robinson lacked an understanding of the proceedings or the ability to assist his trial counsel conduct a defense in a rational manner.
The temporal proximity between the end of the trial and the signs of incompetency documented in the probation report is not sufficient to raise a reasonable doubt about Robinson's trial competency. (See People v. Smith (2003) 110 Cal.App.4th 492, 501, 505.) There must be evidence indicating the signs of incompetency existed at the time of trial. (See People v. Tomas (1977) 74 Cal.App.3d 75, 93, not followed on another point in People v. Superior Court (Marks), supra, 1 Cal.4th at pp. 64-66.)
The parties' stipulation to Robinson's incompetency for sentencing is also not sufficient to raise a reasonable doubt about his trial competency. "[S]ection 1368 does not confer upon defense counsel the power to nullify a lengthy guilt trial and/or lengthy penalty trial if, for the first time, the defendant is not competent at the time of pronouncement of judgment." (Booth v. Superior Court (1997) 57 Cal.App.4th 91, 100.)
"The statutory procedure establishes a discernible point at which evidence of incompetence is sufficient to halt proceedings and renders further proceedings constitutionally invalid. Under the statute, the question of incompetency arises the moment the court expresses a doubt as to a defendant's competency (§ 1368, subd. (a)) and is based on the consideration of all the relevant circumstances, including the behavior of the defendant and the comments of counsel. [Citation.] In the absence of evidence sufficient to find incompetency as a matter of law, or a retroactive finding of incompetency by the trial court, we cannot find [a] later incompetency finding … reaches back to some unknown and unidentified point in earlier proceedings. Doing so would create an unmanageable and unjustified quagmire for appellate and trial courts alike." (People v. Smith (2003) 110 Cal.App.4th 492, 505, fn. omitted.)
Rather, "[t]he statute and general rules of criminal procedure place the burden on the defendant to come forward after restoration of competency with sufficient evidence to show which, if any, parts of the prior proceedings were infected by his subsequent declaration of incompetence." (People v. Smith, supra, 110 Cal.App.4th at p. 505, fn. omitted.) Robinson had the opportunity to meet this burden in his motion for new trial, but he failed to do so. (See part III.B, post.) We, therefore, conclude he has not established the court committed reversible error by failing to retrospectively declare a doubt about his trial competency.
B
Robinson alternatively contends we must reverse the judgment because the court erred in denying his motion for new trial. " ' " 'We review a trial court's ruling on a motion for a new trial under a deferential abuse-of-discretion standard.' [Citations.] ' "A trial court's ruling on a motion for new trial is so completely within that court's discretion that a reviewing court will not disturb the ruling absent a manifest and unmistakable abuse of that discretion." ' " ' " (People v. McCurdy (2014) 59 Cal.4th 1063, 1108.) We discern no such abuse of discretion in this case.
Robinson was presumed to have been competent for trial unless he proved the contrary by a preponderance of the evidence. (§ 1369, subd. (f).) (People v. Dunkle (2005) 36 Cal.4th 861, 885, disapproved on another ground by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) At the hearing on the motion for new trial, Robinson relied on the expert reports and testimony from the posttrial competency proceedings. Viewing this evidence in the light most favorable to the court's decision, it shows Robinson had a long-standing mental illness that had the potential to affect his trial competency, but it does not show the mental illness actually affected his trial competency. More particularly, the evidence does not show Robinson had difficulty understanding the trial proceedings or rationally assisting his trial counsel conduct a defense.
The trial record also does not show Robinson had difficulties in these areas. Transcripts of Robinson's interactions with the court before and during the trial are unremarkable, and there are no indications he was dissatisfied with or was having difficulties working with his trial counsel before or during trial. In addition, his trial counsel never expressed a doubt about Robinson's competency before or during the trial nor did his trial counsel provide testimony or a declaration indicating Robinson's mental illness was impairing trial counsel's ability to present Robinson's defense during trial. Rather, the record shows trial counsel was able to present viable self-defense and imperfect self-defense claims and achieved an acquittal on one of the attempted murder charges. (See fn. 2, ante.) We, therefore, cannot conclude the court abused its discretion in finding Robinson had not met his burden of establishing he was entitled to a new trial on the ground he was not mentally competent during the trial.
IV
DISPOSITION
The judgment is affirmed.


MCCONNELL, P. J.

WE CONCUR:



NARES, J.



HALLER, J.