1 Filed 6/25/13 P. v. Juarez CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and pa rties from citing or relying on opinions not certified for pu blication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered publi shed for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELL ATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. DAVID MICHAEL JUAREZ, Defendant and Appellant. E055235 (Super.Ct.No . FSB056525) O P I N I O N

APPEAL from the Superior Court of San Bernardino County. Bryan Foster, Judge. Affirmed with directions. Kevin D. Sheehy, under appointment by the Court of Appeal , for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Atto rney General, and An thony Da Silva and Christopher P. Beesley, Deputy Attorney s General, for Plaintiff and Respondent.2 I. INTRODUCTION In November 2011, a jury found defendant David Michael Juarez guilty of the first degree murder of Diana Burch. (Pen. Code, § 187, subd. (a).) 1 The murder occurred around April 10, 1989, over 20 years before tr ial. Defendant was sentenced to 25 years to life in prison. Defendant principally claims that the court violated hi s federal due process rights and section 1369 when, on March 13, 2009, the court did not immediately conduct a hearing on defendant’s competen cy to stand trial, even th ough it had just received the report of Randall Norris, Ph.D., a court-appo inted psychologist, that defendant was incompetent to stand trial. Rather than immediately co nduct the hearing, the court granted the prosecution’s request to appoint another psychologist, Steven Jenkins, Ph.D., to assess defendant. After Dr. Jenkins report ed that defendant was competent, the court appointed a third expert, Kenneth Fischer, Ph .D., to assess defendant. After Dr. Fischer reported that defendant was competent, the court conducted the competency hearing and the jury found defendan t competent. Defendant was late r tried and found guilty of the murder. We find no due process or statutory violation in the court’ s refusal to conduct the competency h earing until after Drs. Jenkins and Fischer evaluated defendant. (§ 1369, subds. (a), (c); see Baqleh v. Superior Court (2002) 100 Cal.App.4th 478, 489- 490.)

1 All further statutory references are to the Penal Code unless otherwise indicated.3 Defendant further claims, and the People agree, that defendant’s presentence custody credits were improperly calculated, a nd that defendant should have been awarded 3,243 total credits rather than 2,901 total cr edits. We agree and modify the judgment to award defendant the additional presentence custody credits. In all other respects, we affirm the judgment.
II. FACTS AND PROCEDURAL HISTORY
A. The Murder of Diana Burch On April 11, 1989, the body of 19-year-old Dian a Burch was found in a green duffel bag at a turnout along Hi ghway 330. Defendant’s initia ls “DJ” were on the duffel bag, and his DNA matched semen taken from the victim’s vagina and skin found underneath the victim’s fingernails. Defe ndant’s DNA was also c onsistent with DNA found on the duffel bag and on an electrical cord around the vic tim’s neck. During a January 2006 police interview, defendant admitted that he killed a person who offered him sex in exchange for drugs, around 17 ye ars earlier. In June 2006, defendant was charged with the murder of Burch.
B. Proceedings Concerning Defendan t’s Competency to Stand Trial On February 28, 2007, defense counsel (W right) told the court that he doubted defendant’s competency to stand trial. The court then suspended the criminal proceedings and appointed a mental health professional, Abraham Argun, Ph.D., to evaluate defendant. On April 3, 2007, the court adopted Dr. Argun’s written opinion that defendant was competent to stand trial and reinstated the criminal proceedings.4 On September 24, 2007, de fense counsel (Drake) decl ared a new doubt as to defendant’s competency to stand trial. Members of defendant’s family were in court and, according to defense counsel, indicated that defendant had “a long history of mental health issues.” The court again suspended the proceedings and appo inted another mental health professional, Robert Postman, Ph.D., to evaluate defendant. On October 23, 2007, after reviewing Dr. Postman’s written opinion th at defendant was not competent to stand trial and required psychotropic medications to be restored to co mpetency, the court declared defendant incompeten t, and the criminal proceedings remained suspended. On November 16, 2007, the court ordere d that defendant be committed to Patton State Hospital (PSH) until his mental compet ence was restored (w ith a maximum threeyear time of commitment) and that PSH ad minister antipsychotic (psychotropic) medication, involuntarily if necessary. On February 22, 2008, after reviewing a PSH progress report, the court ordered that defendant be retained and treated at PSH. On July 7, 2008, after reviewing PSH reports and a certificate of mental competence, the court found that defendant’ s competency had been restored and reinstated the criminal proceedings. 2 On December 9, 2008, the court proceede d with the prelimin ary examination and bound defendant over on the murder charge.

2 Defendant expressly waived his right to confront witnesses on the PSH progress report, and defense counsel joined in the waiver.5 On December 16, 2008, defe ndant entered pleas of not guilty and not guilty by reason of insanity on the murder charge, an d the court appointed two doctors, Jungyeol Oh, Ph.D. and Michael Perrotti, Ph.D., to evaluate defendant’ s sanity at the time of the offense. (§§ 1368, 1026.) In his report, Dr. Oh determin ed that defendant required involuntary antipsychotic medications, and stated that defendant was probably sane at the time of the offense, but it was not possible to render a more concrete analysis of his sanity because he refused to be more forthc oming. Dr. Perrotti also concluded that it was not possible to determine defend ant’s sanity at the time of th e offense. Dr. Perrotti noted that defendant’s thoughts were disorganized and his ability to reason was so impaired that he would be unable to tes tify on his own behalf. On February 20, 2009, after reviewing the reports of Dr s. Oh and Perrotti, defense counsel and the court declared doubts as to defendant’s competency, and the court again suspended criminal proceedin gs. The court then appointed a new mental health professional, Dr. Norris, to evaluate defendant. (§ 1368.) On March 13, 2009, after reviewing D r. Norris’s report that defendant was incompetent to stand trial and required psychiatric hospitaliza tion, the court kept criminal proceedings in suspension and, after granting the People’s re quest for “a second doctor evaluation,” appointed another doctor—Dr. Je nkins—to evaluate defendant. The court rejected defense counsel’s request to adopt Dr. Norris’s evaluation and recommit defendant to PSH. The prosecutor asked that the second evaluation be conducted because defendant had already been committed to PSH wh ere his competency had been restored.6 On April 3, 2009, after reviewing D r. Jenkins’s report that defendant was competent to stand trial and noting that the reports of Drs. Norris and Jenkins reached “opposing conclusions” concerning defendant’ s competency, the cour t appointed a third mental health professional, Dr. Fischer, to evaluate defendant. Like Dr. Jenkins, Dr. Fischer concluded that defendant was compet ent to stand trial. On May 14, 2009, defense counsel told the court he was unwilli ng to stipulate to Dr. Fischer’s report and demanded a jury trial on defendant’s competency . The court initially set the jury trial on July 13, 2009. Following several continuanc es, the jury trial on defend ant’s competency was held on January 26 to 28, 2010. After hearing te stimony from several health professionals, including Drs. Norris, Jenkins, and Fischer, the jury determined that defendant was competent to stand trial.
III. DISCUSSION Defendant claims that the court violated his federal due process rights and state law (§ 1367 et seq.) in refusing to immediately try the issue of his competency to stand trial, when, on March 13, 2009, the court rece ived the written report of Dr. Norris that defendant was incompeten t to stand trial. We find this claim utterly with out merit.
A. Applicable Law Federal due process principles and state statutory law prohibit the state from trying or convicting a criminal defendant while he is mentally incompetent. ( Drope v. Missouri (1975) 420 U.S. 162, 181; People v. Rogers (2006) 39 Cal.4th 826, 846-847.) A7 defendant is incompet ent to stand trial if he lacks a “‘“ sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding”’” and “‘“a rational as well as a factual understanding of the proc eedings against him.”’ [Citations.]” ( People v. Rogers, supra, at pp. 846-847; § 1367.) 3 “[A]n accused has a constitutional right to a hearing on present sa nity if he comes forward with substantial eviden ce that he is incapable, because of mental illness, of understanding the nature of the proceedings agai nst him or of assisting in his defense. Once such substantial ev idence appears, a doubt as to the sanity of the accused exists, no matter how persuasive other evidence—testim ony of prosecution witnesses or the court’s own observations of the accused—may be to the contrary.” ( People v. Pennington (1967) 66 Cal.2d 508, 518; Pate v. Robinson (1966) 383 U.S. 3 75, 383-386.) The defendant has the burden of proving his in competency by a preponderance of the evidence. (§ 1369, subd. (f); People v. Marks (2003) 31 Cal.4th 197, 215.) The court’s decision whether or not to ho ld a competency h earing is entitled to deference, because the court has the op portunity to observe the defendant. ( People v. Rogers, supra, 39 Cal.4th at p. 847.) “The failure to declare a doubt and conclude a hearing when there is substa ntial evidence of incompetency, however, requires reversal of the judgment of conviction.” ( Ibid. ; Drope v. Missouri, supra, 420 U.S. at p. 181.)

3 Section 1367, subdivision (a), provides: “A person cannot be tried or adjudged to punishment while that person is mentally incompetent. A defendant is mentally incompetent . . . if, as a result of mental disorder or developmental disability, the defendant is unable to understa nd the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.”8 California’s procedure for determining a defendant’s competence to stand trial is a creature of statute. (See §§ 1368, 1369.) As pertinent, section 1369 states: “A trial by court or jury of the question of mental comp etence shall proceed in the following order: [¶] (a) The court shall appoint a ps ychiatrist or licensed psychologist, and any other expert the court may deem appropriate , to examine the defendant. In any case where the defendant or the defendant’s co unsel informs the court that th e defendant is not seeking a finding of mental incompetence, the court shall appoint two psyc hiatrists, licensed psychologists, or a combination thereof. One of the psychiatrists or licensed psychologists may be named by the de fense and one may be named by the prosecution. . . .” (Italics added.)
B. Analysis Defendant maintains that the trial court violated his fe deral due process rights and state law when, on March 13, 2009, and afte r reviewing Dr. Norris’s March 9, 2009, report that he was incompetent to stand trial, the court refused to immediately conduct a jury trial to determine his competency and instead appoin ted two more experts, Drs. Jenkins and Fischer, to assess his competency. As defendant points out, Dr. Norris’s re port constituted substantial evidence that defendant was incompeten t to stand trial, and was sufficien t to trigger defendant’s federal due process and state statutory right to a h earing or jury trial on his competency. ( People v. Pennington, supra, 66 Cal.2d at pp. 518-519.) But th is does not mean that the court violated defendant’s federal due process rights or state law in appointing Dr. Jenkins, or9 in later appointing Dr. Fischer, to further evaluate defendant’s competency before conducting the jury trial on defendant’s competency. To the contrary, and as the People point out, defendant “received precisely what the [C]onstitution demanded: a hearing as to his competence.” ( People v. Pennington,

supra, 66 Cal.2d at p. 518.) Further, nothi ng in the statutory scheme governing competency proceedin gs (§ 1367 et seq.) prohibite d the court from appointing the additional experts to evaluate defendant’s co mpetency before condu cting the competency hearing, even though Dr. Norris’s report cons tituted substantial evid ence that defendant was not competent and triggered the court’s duty to conduct a competency hearing. (§§ 1367-1369; People v. Pennington, supra, at p. 518.) As indicated, section 1369 states that “[t] he court shall appoint a psychiatrist or licensed psychologist, and any other expert the court may deem appropriate , to examine the defendant.” (§ 13 69, subd. (a), italics added.) Ostens ibly, the statute authorized the trial court to appoint Drs. Jenkins and Fischer to examine defendant before the court conducted the competency hearing. In addition, section 1369, subdivision (c), states that “[t]he prosecution shall present its case rega rding the issue of the defendant’s present mental competence,” and specifically contem plates that the prosecutor may present expert testimony of defenda nt’s competency. (See Baqleh v. Superior Court, supra, 100 Cal.App.4th at pp. 489-490 [§ 1369 authorizes the court to order a defendant to submit to mental competency examination by an ex pert retained by the prosecution].)10 C. Additional Presentence Custody Credits Defendant claims, and the People agree, that defendant’s presentence custody credits were erroneously calculated, and that defendant is entitled to additional presentence custody credits. We agree. As the parties explain, defendant was co rrectly awarded 1,935 days of actual custody credits and should have been awarde d 1,308 conduct credits, rather than 966 conduct credits, for total credits of 3,243 days, rather than total credits of 2,901 days. Defendant was taken into cust ody on August 23, 2006. At that time and until January 25, 2010, section 4019 speci fied that a defendant would accrue two days of conduct credit for every four days in local custody. ( People v. Brown (2012) 54 Cal.4th 314, 318.) Effective January 25, 2010, section 4019 was amended to provide for two days of conduct credit for every two da ys in local custody. ( People v. Brown, supra, at p. 318.) Thus, a defendant in contin uous custody before and afte r January 25, 2010, accrued conduct credits at two different rates. ( Id. at p. 322.) Defendant therefore earned 1,251 actua l credits and 624 conduct credits from August 23, 2006, through Janu ary 25, 2010. After January 25, 2010, he earned 684 actual days credit and 684 days conduct credits. He should have been awarded total credits of 3,243 days, not 2,901 days, or 342 a dditional conduct credits.
IV. DISPOSITION The judgment is modified to award de fendant 3,243 total days of presentence custody credits, consisting of 1,935 actual days pl us 1,308 conduct days. The matter is11 remanded with directions to amend defendant’ s abstract of judgment to reflect this modification, and to forward a copy of th e amended abstract to the Department of Corrections and Rehabilitation. In all othe r respects, the judgme nt is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

KING J.

We concur:
RAMIREZ P. J.
MILLER J.