Filed 3/5/18 In re Barney CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(San Joaquin)
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In re FELIX BARNEY on Habeas Corpus.



C083826

(Super. Ct. No. STKCRFMISC20160012982)




After unsuccessfully pursuing relief in the superior court, petitioner Felix Barney brought this petition for writ of habeas corpus. He claims he was incompetent at the time of his plea to a charge of indecent exposure. (See Pen. Code, § 314 [statutory section references that follow are to the Penal Code].) We issued an order to show cause returnable to us and referred the matter for a hearing and evidentiary determination by a referee, the Honorable Richard Vlavianos, judge of the San Joaquin County Superior Court.
The referee’s report and findings have been submitted to the court, and the referee has credited overwhelming evidence supporting a finding that petitioner was incompetent when he entered his plea. We reach the same conclusion and shall allow petitioner to withdraw his plea.
FACTS AND PROCEEDINGS
1. Trial Court Plea
On May 19, 2015, petitioner was charged with misdemeanor indecent exposure. (See § 314.) On May 20, during an in-custody arraignment on the charge, he accepted the plea offer by the People and entered a plea of guilty. He did not request counsel and, consequently, was not represented when he entered the plea. There is no transcript or recording of the plea canvass. Petitioner was placed on three years’ informal probation with a 60-day jail term. As a result of his conviction, he is required to register as a sex offender and any subsequent indecent exposure offenses are considered felonies. (See §§ 290, subd. (c), 314.) It is this conviction that is at issue in the current habeas corpus proceeding.
On June 22, 2015, petitioner was charged with two counts of indecent exposure, which were deemed felonies because of petitioner’s May conviction. He also was charged with a prior strike from a 2004 conviction.
The public defender was appointed to represent petitioner, and counsel declared a doubt concerning petitioner’s competency. Dr. Robert Hart was appointed to prepare a psychological evaluation of petitioner. Dr. Hart interviewed petitioner while petitioner was in custody on July 3, 2015.
Dr. Hart diagnosed petitioner with undifferentiated schizophrenia. Dr. Hart observed that petitioner had acknowledged auditory hallucinations and his “thinking was slow and showed thought blocking and some disorganization.” He “appeared dazed and minimally responsive socially.” He reported taking medication while in custody, “which helps quiet down the voices.” Petitioner gave what Dr. Hart characterized as a “vague” description of his arrest and referred to getting into trouble “for not registering and that the offense was indecent exposure,” which he attributed to a false report. “He reported that his arrest was not timely because he had just been awarded SSI a few days before that, but changed his story to a longer history of SSI.” Dr. Hart noted petitioner was alert and oriented to place and “roughly” to person but not to time. His speech was sparse and irregular, but coherent.
Petitioner reported staying outside, presumably on the streets, and Dr. Hart characterized him as essentially a transient, living “place to place or at the shelter.” Petitioner reported “some employment history in construction and [that he] thought perhaps it has been a month since he has worked.” Dr. Hart commented that petitioner had not availed himself of mental health services, “preferring a street life.”
Dr. Hart concluded petitioner presented “as a seriously mentally ill person who, despite current antipsychotic medication in custody, is not in particularly good remission of his symptoms.” Dr. Hart opined petitioner was “1368 P.C. incompetent,” observing it was “doubtful that he could assist counsel rationally.” The court found petitioner to be incompetent and committed him to Atascadero State Hospital to have his competence restored. He was admitted on October 15, 2015.
A report dated December 2, 2015, said petitioner was not yet competent to stand trial and was in need of further treatment. Reports from Atascadero largely corroborate Dr. Hart’s diagnosis, describing petitioner’s condition as “Schizophrenia, continuous.” Additionally, petitioner was diagnosed with “moderate” amphetamine and cannabis use disorder currently in a controlled environment. Petitioner’s history of symptoms was described as including “disorganized thinking and speech, auditory hallucinations, impaired affect, and distractibility.”
In a March 30, 2016, report, Atascadero staff concluded petitioner was competent. The report noted: “Since the last court progress report [his] psychiatric symptoms have decreased in severity and he is no longer exhibiting symptoms of a thought disorder that are impacting his ability to comprehend his legal situation and/or assist his attorney.” A certification of mental competency was subsequently prepared and dated April 11, 2016.
2. Habeas Proceedings
Petitioner filed his first habeas petition on May 19, 2016, through counsel, soon after he was returned to local custody following his restoration to competence. Petitioner did not allege there was reason for the judge to doubt his competence at the time of the May 20, 2015, plea but relied on the reports described above as supporting a claim that he was in fact incompetent. The superior court denied the petition, largely based on the reasoning of People v. Smith (2003) 110 Cal.App.4th 492 (Smith), which we discuss post.
Petitioner then sought relief in this court by petition for writ of habeas corpus, the first petition filed here. (In re Barney, case No. C082472.) This court requested opposition, and respondent relied extensively on Smith, supra, 110 Cal.App.4th 492, in arguing that petitioner was not entitled to issuance of an order to show cause. On September 2, 2016, this court issued an order to show cause returnable in the superior court. The superior court ultimately denied relief without conducting an evidentiary hearing, again citing Smith, and characterizing the issue as whether “substantial evidence of [petitioner’s] incompetence [was] before the trial court in May of 2015.”
Petitioner filed the current petition for writ of habeas corpus in this court on January 20, 2017. This court solicited an informal response from respondent before issuing an order to show cause returnable in this court. While not disputing the evidence supporting petitioner’s allegations, respondent denied on information and belief the factual allegation that petitioner was incompetent to stand trial at the time of the plea.
Based on the verified petition and supporting documentation, which indicated “a reasonable likelihood that the petitioner may be entitled to relief and the petitioner’s entitlement to relief depend[ed] on the resolution of an issue of fact,” this court appointed a referee to hold an evidentiary hearing and to make a recommended finding of fact as to petitioner’s competence when he entered his plea. (Cal. Rules of Court, rule 8.386(f); see also Cal. Rules of Court, rule 4.551(f) [superior court applies same standard in determining need for an evidentiary hearing].)
3. Evidentiary Hearing
At the evidentiary hearing, the parties put before the court the following stipulations. First, neither the prosecutor nor judge noticed anything unusual about petitioner when petitioner entered the plea at issue. Second, petitioner was originally placed in administrative segregation following booking in this case on May 18, 2015, but when he was later transferred to general population, he did not pose problems before his release on June 7. Third, petitioner did not receive any medication for his mental health issues between May 18 and June 7. Finally, when a police officer spoke to petitioner before his arrest in the current matter, petitioner was behaving oddly. He appeared to be in a “trance” and the officer had to repeat petitioner’s name a few times before he responded and stopped masturbating.
Documentation concerning petitioner’s initial booking on May 18, reflects that he behaved in a bizarre manner at the jail for many hours after he was taken into custody. He was seen masturbating in a cell and a clinician was unable to redirect his attention. Jail staff surmised petitioner might be under the influence of an unknown substance so they allowed time for detoxification. Hours later, petitioner was observed still playing with his penis.
Petitioner called Dr. Hart to testify. Dr. Hart has over 40 years of experience and has served in a variety of capacities, including as a psychiatrist and medical director. He is currently the chairman of the institutional review board at San Joaquin General Hospital.
Dr. Hart noted petitioner had been under intermittent treatment for schizophrenia since 2011. In January 2015, before the events at issue in the current case, Dr. Hart met with petitioner in connection with an evaluation for an LPS conservatorship. Petitioner was “partially cooperative” at that time, his “speech was sparse and soft but generally coherent,” but “his thinking was disorganized and occasionally showed thought blocking, that was a long pause before answering for no apparent reason.” Petitioner acknowledged having auditory hallucinations, his insight was “very limited,” and his judgment was “impaired.” His memory and recall were, however, intact. Dr. Hart diagnosed petitioner at that time with paranoid schizophrenia and polysubstance abuse and concluded he was gravely disabled for purposes of the LPS conservatorship.
Dr. Hart discussed his subsequent evaluation of petitioner in July 2015 in connection with his later incarceration and echoed the concerns expressed in his original report. Dr. Hart emphasized petitioner “seemed to have little understanding of what had happened thus far in criminal court,” and that petitioner was “alert and oriented” but his thinking was “slow” and showed “blocking and disorganization.” Petitioner acknowledged auditory hallucinations, his insight was “absent,” and judgment “impaired.”
Although Dr. Hart had previously diagnosed petitioner with paranoid schizophrenia, Hart characterized petitioner’s condition in June as undifferentiated schizophrenia. As Dr. Hart explained, these diagnoses are in the family of the major mental illness “within the schizophrenia spectrum.” He observed: “It’s just at various times, it’ll show different aspects of their psychopathology.” Paranoid schizophrenia is characterized by “being guarded and worried about harm” and undifferentiated schizophrenia is characterized by being “more disorganized” with difficulty in organizing speech and answering questions. Dr. Hart explained the general symptoms of schizophrenia typically included (1) hallucinations, often auditory, that can overwhelm a person and prevent them from paying attention or receiving important information, (2) general disorganization of thought, and (3) delusions. As to the last point, Dr. Hart noted petitioner had exhibited delusions in the 2015 evaluation, including “that it was actually his father that committed the crime because his father was part of some conspiracy.”
Dr. Hart concluded it was likely petitioner was incompetent at the time of the May 20, 2015, plea. Dr. Hart emphasized petitioner’s long history of mental illness and commented, “people with major mental illness usually do not suddenly become very well in the course of a few days.” Although there was an indication petitioner had been under the influence of street drugs around the time he was taken into custody, Dr. Hart opined the lapse of two days was not itself “sufficient to cause him to be detoxified and clear mentally.” Petitioner had not been taking medication and would, at the time of his plea, “probably be stable in his quiet disorganization.” Petitioner’s “form of psychosis has more to do with sitting and listening to voices and thinking and grimacing and so on.” In commenting about the plea, Dr. Hart observed: “[T]he answers don’t require a great deal of complex thought; it’s generally yes or no, or even a nod of head in some cases. [¶] And a person who’s disorganized mentally can still rise to the occasion to answer fairly straightforward questions with a yes or a no.” Additionally, “it’s very common for folks who are ill and symptomatic to appear to be listening but not really perceive what is going on.”
Respondent allowed a prosecutor from the local district attorney’s office to appear at the evidentiary hearing. The prosecutor did not call any witnesses although an expert had been retained and presumably reviewed petitioner’s records. The prosecutor commented: “And I think both doctors’ interpretations of the record were correct based on how they were kept by the custodian of said record.”
The referee found Dr. Hart was “a very credible witness” and emphasized there was no inconsistency in his evaluation vis-à-vis other experts. The referee observed “the only rational conclusion from the evidence is that [petitioner] was not competent at the time he entered the plea,” citing “the fact that he was previously interviewed and placed under conservatorship, found not to be competent on both ends of the spectrum, and then given Dr. Hart’s description of the disease.” The referee characterized the evidence of petitioner’s incompetence at the time of his plea as “pretty clearly overwhelming.”
Following the evidentiary hearing, this court afforded both parties an opportunity to file additional briefs on the matter and/or exceptions to the report of the referee. In response, respondent explains: “In light of the referee’s clear findings, and the lack of any contrary evidence in the record, respondent has no exceptions to the referee’s report or findings.”
DISCUSSION
A defendant is not competent to stand trial or to enter a plea if the defendant lacks “ ‘ “sufficient present ability to consult with [a] lawyer with a reasonable degree of rational understanding” ’ ” and “ ‘ “a rational as well as factual understanding of the proceedings against him.” ’ ” (Drope v. Missouri (1975) 420 U.S. 162, 172 [43 L.Ed.2d 103, 113].) There are two types of incompetency claims that typically arise following a defendant’s conviction. The first type of claim, which is often the subject of a direct appeal, is that there was reason for the trial court to doubt whether the defendant was competent during the proceedings and, consequently, the court should have suspended the proceedings until the issue was determined. (See § 1368.) This claim is sometimes called a claim of “procedural” incompetence.
The second type of claim, at issue here, arises through no fault of the trial court but is implicated if there is evidence that was not before the court indicating the defendant was in fact incompetent during the proceedings. This claim is sometimes called a claim of “substantive” incompetence and requires the defendant affirmatively to show he or she was in fact incompetent. (See, e.g., Boyde v. Brown (9th Cir. 2005) 404 F.3d 1159, 1165, fn. 6, opinion amended on other grounds by 421 F.3d 1154 (9th Cir. 2005); Walton v. Angelone (4th Cir. 2003) 321 F.3d 442, 459-460.) A claim of substantive incompetence is appropriately raised on petition for writ of habeas corpus because it most frequently arises based on evidence that was not part of the record. “[W]hen reference to matters outside the record is necessary to establish that a defendant has been denied a fundamental constitutional right resort to habeas corpus is not only appropriate, but required.” (In re Bower (1985) 38 Cal.3d 865, 872.)
Having evaluated the evidence presented, we conclude petitioner has met his burden of showing his substantive incompetence at the time of the plea. That evidence includes both petitioner’s mental health history and the expert opinion of Dr. Hart. There is no dispute petitioner has, for years, exhibited symptoms of schizophrenia, leading to an LPS conservatorship, then to appointed counsel in the June 2015 case promptly declaring a doubt as to his competence, followed by a finding by Dr. Hart that petitioner was incompetent just over a month after the plea at issue. It took many months before treatment at Atascadero State Hospital sufficiently remediated the condition so that staff could deem petitioner competent to stand trial. Considering also petitioner’s bizarre behavior shortly before his plea and the fact he was not taking medication to manage the serious consequences of his schizophrenia, it is difficult to see how his condition could not have been similar to what Dr. Hart observed just a few weeks later even taking into account petitioner’s presumed substance use. Significantly, even the prescription of antipsychotic medications while in custody during the latter custodial period was apparently inadequate to render him competent.
Finally, the nature of petitioner’s condition, Dr. Hart’s own evaluations of petitioner, and petitioner’s mental health history led Hart to opine that petitioner was incompetent at the time of his plea. Although it would not have been obvious to the judge or the prosecutor at the time petitioner accepted his plea considering how petitioner’s mental health issues frequently manifested, his condition was of a nature that rendered him incompetent. Despite consulting with an expert, respondent offered no evidence to contradict or otherwise call into question Dr. Hart’s expert opinion.
The superior court, in denying habeas relief without an evidentiary hearing on two separate occasions, as well as respondent in opposing the current petition before the evidentiary hearing, had relied heavily on Smith, supra, 110 Cal.App.4th 492. The defendant Smith, who was represented by counsel, had waived his right to jury trial and began to manifest mental health problems as the court trial commenced. (Id. at pp. 497-498.) He was receiving mental health treatment, but the trial was temporarily halted after counsel noted Smith had recently become confused and the court suspected a medication imbalance. (Ibid.) The court asked jail staff for a report, and received information petitioner had been mentally fragile and the stress of the court proceedings had been overwhelming to the point he could not assist counsel, “ ‘due to his psychosis and his continued decompensation.’ ” (Id. at p. 498.) The court then proceeded as required by law, suspending proceedings for an evaluation, which resulted in a declaration of incompetence and a commitment to restore competence at the state hospital. (Id. at pp. 498-499.)
The appellate court rejected Smith’s argument, raised on direct appeal, that “his incompetency necessarily predated by at least a few days the suspension of the criminal proceedings,” and that Smith was incompetent when he waived his right to a jury trial. (Smith, supra, 110 Cal.App.4th at p. 497.) The court opined there was no authority holding “the temporal relationship between the [jury trial] waiver and the first evidentiary sign of incompetence alone” invalidated the waiver. (Id. at p. 501.) The court also commented specifically about Smith’s jury trial waiver noting his counsel told the court he had discussed the pros and cons for 10 or 15 minutes with Smith, supporting an inference of a rational discussion in which Smith was not confused. (Ibid.) The court emphasized there was nothing in the reports of the physicians indicating Smith’s “mental status had decompensated prior to April 18 when [his] confusion was first brought to the trial court’s attention.” (Id. at pp. 501-502.)
Smith is inapposite to the instant case for two reasons.
First, it arose in a direct appeal context, in which the appellate court looked to the record on appeal and did not consider evidence outside the record. And the record on appeal in Smith contained information indicating Smith was being treated for his mental health condition and had appeared competent during his participation in court proceedings before he began to manifest symptoms of decompensation. By contrast, petitioner was not receiving medication in jail at the time of his plea. Moreover, Dr. Hart’s report a few weeks later emphasized petitioner’s poor condition and management of his condition while out of custody.
Second, Smith was represented by counsel during the proceedings in question. In considering whether a defendant meets the standard of incompetence, which contemplates both the ability to consult with counsel and to understand the proceedings, counsel’s comments and observations about a defendant carry great weight. Unlike Smith’s counsel, who initially did not find reason to doubt his client’s competence, the petitioner here was not represented by counsel during the proceedings in question. And, when he was appointed counsel a few weeks later in the subsequent case, counsel immediately expressed doubts as to petitioner’s competence.
In sum, we agree with the referee that petitioner has affirmatively established by compelling evidence that he was not competent at the time of his plea.
DISPOSITION
The superior court is directed to afford petitioner the opportunity to withdraw his plea in People v. Felix Barney (San Joaquin County Superior Court No. CR-2015-0009817/SM292581A). If petitioner elects to withdraw his plea, the prosecution may retry him if he is presently competent to stand trial.





HULL , Acting P.J.



We concur:



MAURO , J.



DUARTE , J.