Filed 7/27/17 P. v. Swain CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

JOHN BRIAN SWAIN,

Defendant and Appellant.


E065818

(Super.Ct.No. BAF1400618)

OPINION


APPEAL from the Superior Court of Riverside County. Bambi J. Moyer, Judge. Dismissed.
Christian C. Buckley, 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, and Eric A. Swenson and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant John Brian Swain appeals from the trial court’s February 25, 2016, judgment finding him to be incompetent to stand trial (Pen. Code, §§ 1368, 1369. ) We conclude that defendant’s appeal is moot, because he has subsequently been found mentally competent to stand trial, and we accordingly dismiss the appeal.
I. PROCEDURAL BACKGROUND AND FACTS
On July 21, 2015, defendant was charged with felony evasion (Veh. Code, § 2800.2), felony evasion while driving against traffic on a highway (Veh. Code, § 2800.4), and misdemeanor violation of driving with a suspended license (Veh. Code, § 14601.1, subd. (a)). On September 30, 2015, defense counsel declared a doubt as to defendant’s mental competency. (Pen. Code, § 1368, subd. (b).) On October 29, 2015, a contested hearing was held regarding suspension of the proceedings. After considering argument from both sides, the trial court suspended proceedings and referred defendant for a mental health evaluation.
Following their appointment by the court, Drs. Gene N. Berg and Jennifer A. Bosch examined defendant and filed their written evaluations on December 16, 2015, and February 1, 2016, respectively. (§§ 1368, 1370.) Both doctors concluded that defendant was incompetent to stand trial. Dr. Berg observed that when discussing the charges against him, defendant digressed into talking about how the police and the legal system were corrupt and unfair. The doctor opined that defendant lacked the basic capacity to understand the nature of the criminal proceedings because his thinking was colored by “delusional ideation with a high level of distrust and suspicion.” Dr. Berg diagnosed defendant with delusional disorder and concluded that defendant would not be able to rationally assist and cooperate with defense counsel in presenting his defense.
Dr. Bosch reported that defendant was cooperative, well groomed, and had average to above-average intelligence. When she asked him a series of questions regarding his charges, the criminal proceedings, and the role of the court and the prosecutor, defendant’s answers were largely correct and coherent. However, defendant claimed to be an attorney who performed pro bono work, while at the same time admitting he did not have a license to practice law. He believed that he was arrested under false pretenses and that the courts were involved in a human trafficking scheme. Dr. Bosch diagnosed defendant with delusional disorder, persecutory type, due to his persistent delusions about a conspiracy between judges, police departments, government agencies, and the district attorney’s office to illegally arrest and prosecute him. The doctor opined that given defendant’s “very unusual interpretation” of how the law applies to him, along with his various delusions, it would be “impossible” for him to aid his defense in a rational manner.
On February 2, 2016, both sides submitted on the written evaluations and waived jury trial on the issue of competency. After admitting the doctors’ reports into evidence, the trial court found defendant to be mentally incompetent to stand trial. At the request of defense counsel, the court ordered an additional evaluation for purposes of a placement recommendation. In a report dated February 3, 2016, Dr. Daniel Lance, a psychologist and a program director for a conditional release program, recommended that defendant receive competency training in a locked forensic setting.
On February 25, 2016, the trial court reaffirmed the legal incompetency finding, entered a judgment of mental incompetency and ordered defendant placed in an appropriate facility. The court set the maximum confinement at three years and awarded defendant no credits against the term.
II. DISCUSSION
Defendant contends (1) the evidence was insufficient to support the finding of mental incompetency, and (2) the trial court erred in computing his pre-commitment custody credits. The People argue that the appeal should be dismissed because it is moot in light of the subsequent finding that defendant is mentally competent to stand trial. As we will explain, we agree with the People.
“‘“[A]n action that originally was based on a justiciable controversy cannot be maintained on appeal if all the questions have become moot by subsequent acts or events. A reversal in such a case would be without practical effect, and the appeal will therefore be dismissed.”’” (People v. DeLong (2002) 101 Cal.App.4th 482, 486.) As established in People v. Lindsey (1971) 20 Cal.App.3d 742 (Lindsey), when a defendant is found to be mentally competent after he appeals an earlier finding of mental incompetency, a successful appeal of the earlier mental incompetency finding will no longer afford any meaningful relief, and the appeal accordingly becomes moot. (Id. at p. 744.)
In Lindsey, the defendant had been found insane within the meaning of a certain penal statute. Criminal proceedings were therefore suspended and he was committed to a state hospital for care and treatment. (Lindsey, supra, 20 Cal. App.3d at p. 743.) The defendant appealed the finding of insanity, but, during the pendency of the appeal, he was certified to have become sane and was returned to the court, where the criminal charges were set for trial. (Ibid.) The appellate court, in holding that the appeal was moot, explained: “The law imposes no disadvantageous collateral consequences upon one whose trial has had to be postponed by reason of such a temporary disability. In the event defendant is convicted, the fact that he had been so disabled . . . should not affect the kind of sentence imposed by the trial court. If defendant’s mental state is considered in future proceedings, the issue will turn upon what that state is found to be as of the relevant time, and not the fact that an order was made [regarding his mental incompetency in the past]. If any social opprobrium is thought to attach by reason of the commitment, that is nothing which is likely to be relieved by an appellate decision. The temporary commitment is nothing from which defendant needs to ‘clear his name.’” (Id. at pp. 744-745.)
In the present case, likewise, the competency certification terminated defendant’s commitment and left no prejudicial consequences that might be ameliorated by a successful appeal.
Defendant opposes dismissal, asserting that “if the finding of incompetence is left undisturbed it could have an impact on later mental health proceedings and produce significant social and civil consequences.” He argues that his finding of incompetence could be used by a trial court and relied on by experts in making a new evaluation. (People v. Rogers (2006) 39 Cal.4th 826, 847.) We disagree. Defendant’s February 25, 2016, mental incompetency finding bears no more weight in a future competency determination than the subsequent finding on October 18, 2016, that he was competent to stand trial. In other words, the merits of any future court order finding mental incompetency will not flow from the circumstances of defendant’s past conduct that are at issue in the current appeal, but will necessarily relate to the facts and circumstances involved in such hypothetical future conduct. When determining whether defendant is able “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)) the appointed experts (psychiatrists or licensed psychologists) assess the relevant facts and circumstances at that particular moment in time.
During oral argument, defendant’s counsel urged this court to venture onto a path less traveled and address the merits of the issue raised. Conceding that there is no legal remedy available, counsel argued that the relief he seeks comes in the power of this court’s words directing trial courts to treat an incompetency determination as “a solemn issue” requiring more than mere reliance on expert opinions and defense counsel’s concession. We commend counsel on his zealous, genuine, passionate, and sincere advocacy on behalf of his client and we acknowledge the stigma that may be associated with a finding of mental illness. However, we presume that trial courts are aware of the law and follow it. (People v. Mosley (1997) 53 Cal.App.4th 489, 496.) Moreover, even if we were to reach the merits of the issue and review the trial court’s finding of defendant’s incompetence, the law in this area is well settled. The testimony of an expert, under oath, that in his or her “professional opinion the accused is, because of mental illness, incapable of understanding the purpose or nature of the criminal proceedings being taken against him or is incapable of assisting in his defense or cooperating with counsel,” is sufficient to satisfy the substantial evidence test. (People v. Pennington (1967) 66 Cal.2d 508, 519; see People v. Howard (1992) 1 Cal.4th 1132, 1163 [substantial evidence of incompetence to stand trial is “evidence that raises a reasonable doubt on the issue”].) Here, two experts opined that defendant was incompetent to stand trial.
Under the circumstances presented, the matter is moot, and should be dismissed.
III. DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ
P. J.
We concur:

MCKINSTER
J.

SLOUGH
J.