Filed 11/9/23 P. v. Martin CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v.
JARED ANDREW MARTIN, Defendant and Appellant. F085047 , F085210
(Super. Ct. No s . MCR071794 & MCR073503 )


### OPINION

THE COURT *
APPEAL from a n order of the Superior Court of Madera County. Dale J. Blea, Judge. Stephanie L. Gunther , under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta , Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrel l, Assistant Attorney General, Ross K. Naughton and Sean M. McCoy, Deputy Attorneys General , for Plaintiff and Respondent.

- ooOoo

-

* Before Hill, P. J., Detjen, J. and Meehan, J.2

. INTRODUCTION
Jared Andrew Martin (defendant) appeal s the trial court’s order finding him not competent to stand trial in case Nos. MCR071794 and MCR073503 which have been
consolidated here in one appeal. We affirm the trial court’s order

. BACKGROUND On July 28, 2021, defendant was charged in case No. MCR071794 with battery by a prisoner upon a nonconfined person (Pen. Code, § 4501.5 1 ; count 1) and resisting an executive officer by force (§ 69; count 2). It was also alleged that defendant suffered a prior conviction for a serious or violent felony (§ 667, subds. (b )

− (i)). On March 22, 2022, defendant was charged in case No. MCR073503 with criminal threats (§ 422,
subd. (a)) , a serious felony within the meaning of section 1192.7, subdivision (c)

. The complaint also alleged that defendant had suffered a prior convic tion for a serious or violent felony (§ 667, subds. (b)

− (i)) and that he suffered a prior conviction for a serious felony (§ 667, subd. (a) (1) ). On April 4, 2022, defendant was arraigned on both cases and pleas of not guilty
and denials to the special al legations were entered on his behalf. Defendant was originally granted the right to represent himself but his privilege was revoked because of his inappropriate and disruptive behavior, which led to him being removed from court. At his July 20, 2022 pret rial release hearing, the People expressed doubt as to d efendant ’s competence. The trial court said it would leave that for defense counsel to determine
whether d efendant is able to effectively assist counsel. On August 12, 2022, d efendant asked to represent himself, disrupted the court and had to be removed from the courtroom again. Defense counsel informed the trial court that d efendant refused his visit, would not speak with him, and wanted to represent
himself. The court expressed its concern regarding d efendant ’s ability to assist in the

1 All further undesignated statutory references are to the Penal Code.3

.

matter

. Defense counsel agreed and declared doubt regarding d efendant ’s competency
under section 1368. Defense counsel stated that “based on his behavior today in court, I do not feel that I can pro ceed with him

⸻ competently representing him based on his

⸻his lack of desire to cooperate with me.” The court agreed and suspended criminal proceedings under section 1368 and ordered an evaluation of d efendant to determine whether he was competent to stand trial. On August 30, 2022, d efendant filed a pro se written document entitled “Motion to
Proceed in Pro

- Per” with the trial court. In his motion, d efendant expressed his desire to represent himself and his frustration at the court for what he perceived as forcing him to be represented by a court appointed attorney. Defendant claimed he had “no mental health issues” and “sees no mental health doctors.” Defendant asked, “where is the incompetence?” Defendant wrote that he “objects to competency hearings being forced upon him.” On September 15, 2022, the trial court indicated it received the psychologist’s report and noted d efendant was deemed not competent to stand trial. The evaluator found
d efendant had psychotic delusions that rendered him incapable of a rational decision
about self

- representation in a court of law. The evaluator also concluded d efendant ’s
illness

- related impairments rendered him incapable of rationally weighing the presence and extent of incriminating evidence, conveying p ertinent information to his attorney or following courtroom testimony. The parties submitted on the report and the court found
d efendant incompetent to stand trial. There was no objection from d efendant or his counsel, nor did they request a second evalu ation. D efendant filed a notice of appeal in case No. MCR073503 on September 22, 2022 , and in case No. MCR071794 on
Octobe r 24, 2022

. DISCUSSION
Defendant claims that the trial court should have order ed a second psychologist to evaluate his competency u nder section 1369, subdivision (a) since he did not seek a4

.

finding of mental incompetence

. The People argue that it was defense counsel who requested the court suspend the proceedings and determine his competency and therefore,
there was no need for a sec ond psychologist to evaluate d efendant

. And even if the second psychologist should have been appointed, the People contend any error was
harmless. We agree with the People.
A. Applicable Law and Standard of Review
S ection 1369, subdivision (a) provides that when there is a doubt as to a defendant’s mental competence to stand trial, “ [ t ] he court shall appoint a psychiatrist or licensed psychologist, and any other expert the court may deem appropriate, to examine the defendant.” When the defendan t does not seek a finding of mental incompetence, “the court shall appoint two psychiatrists, licensed psychologists, or a combination thereof.” (§ 1369, subd. (a)(1).) “ ‘ The appointment of two experts in such circumstances provides a minimum protection for the defendant against being incorrectly found incompetent to stand trial. ’ ” ( People v. Leelu (2019) 42 Cal.App.5th 1023, 1030 ( Leelu ); People v. Harris (1993) 14 Cal.App.4th 984, 996.) “Section 1369, subdivision (a) plainly requires ‘ defendant or th e defendant ’ s counsel ’ to ‘ inform[] the court ’ that the defense is not seeking a finding of incompetence in order to trigger the required appointment of a second mental health expert.” ( People v. Lawley (2002) 27 Cal.4th 102, 133 ( Lawley ) .) Errors of sta te law are reviewed for prejudice under the Watson standard. (See People v. Watson (1956) 46 Cal.2d 818.) To show prejudicial error justifying reversal, a defendant must “ demonstrate there is a reasonable probability that in the absence of the error he or she would have obtained a
more favorable result. ” ( People v. Lightsey (2012) 54 Cal.4th 668, 699 ; Watson , at
p. 836.)
B. Analysis
In People v. Harris , supra , 14 Cal.App.4th at p. 996 , the appellate court initially
observed that it was unclear whether s ection 1369 compelled the appointment of5

.

two experts when the defendant’s counsel asserted incompetence and the defendant personally claimed he was competent

. ( Ibid .) In Harris , the defendant claimed the trial court erred by not appointing two experts to evaluate him under section 1369,
subdivision (a)

. The court then noted that the trial court “is not required to appoint

two experts unless defendant or defense counsel informs the court that the defendant is not seeking a finding of mental incompetence.” ( Ibid .) The court declined to resolve the question whether the trial court had been informed because the commitment order had expired. ( Ibid .)
In Leelu , supra , 42 Cal.App.5th 1023, th e defendant also claimed the trial court erred in failing to appoint a second mental health evaluator under section 1369, subdivision (a). ( Id . at p. 1030.) The defense counsel submitted the question of defendant’s mental competency on the report, but in formed the court that “she believed she had to ‘equate’ Leelu’s nonlinear statement upon being informed about the doctor’s opinion of Leelu’s incompetence to ‘an objection.’ ” ( Ibid .) The appellate court held that “[a]lthough Leelu’s counsel did not requ est that the trial court appoint a second expert on Leelu’s behalf, counsel did communicate Leelu’s objection to the first evaluator’s finding that she was incompetent.” ( Ibid .) In addition, the evaluator’s report noted that Leelu

“ ‘ strenuously denie[d] any present or past mental health symptoms or treatment. ’ ” ( Ibid .) Therefore, under these circumstances, the court concluded Leelu herself was not seeking a finding of incompetence and the trial court erred in not appointing a
second mental health eval uator. ( Id . at pp. 1030

− 1 031 .)
After Leelu , t he Supreme Court decided Lawley , supra , 27 Cal.4th 102 and clarified what is required to trigger the appointment of a second evaluation under
section 1369, subdivision (a). ( Id . at pp. 132

− 133.) In Lawley , the defendant wanted to represent himself since his attorney disagreed with him wanting to waive his right to a jury trial and to subpoena certain records from the D epartment of J ustice. ( Lawley , at
p. 126.) Defense counsel indicated to the court that he had a question about whether the6

.

defendant was competent to proceed to trial or stand as his own attorney. ( Id . at p. 127.) Defense counsel requested that the defendant be evaluated pursuant to section 1368, which was followed by “another outbur st by [the] defendant.” ( Ibid .) The court agreed , stating that it had its own doubts as to the defendant’s mental competency, suspended criminal proceedings and appointed a psychologist to examine the defendant. ( Ibid .)
After a brief interview of the defendant and review of his records, the court

- appointed psychologist determined the defendant was competent to stand trial. ( Id

. at pp. 127

− 129. )
The d efendant was interviewed by another psyc h ologist, at defense counsel’s request, who concluded the defendant was incompetent to stand trial. ( Id . at p. 129.) At the trial, defense counsel urged the court to find the defendant inco m petent to stand trial. ( Id . at
p. 130.) The court found the defendant competent to stand tria l. ( I bid .) On appeal, Lawley claimed “ that section 1369, subdivision (a) compelled the appointment of a second expert” since it states “ ‘ [i]n any case where the defendant or the defendant’s counsel informs the court that the defendant is not seeking a finding of mental incompetence, the court shall appoint two ’ mental health experts. ” ( Lawley , supra , 27 Cal.4th at pp. 132

− 133.) Even thoug h Lawley acknowledged that neither he nor his attorney ever expressly informed the court he was not seeking a finding of mental incompetence, the defendant argued that the judge “was informed” based on his “insistence on a court trial, a new lawyer, or the right to proceed in propria persona.” ( Id

. at p. 133.) However, the court stated there was nothing in the record showing that the judge knew defendant was not seeking a finding of incompetence. ( Ibid .) The court concluded that the statute places the r equirement on the “ ‘ defendant or defendant’s
counsel ’ to ‘ inform [] the court ’ that [ defendant ] is not seeking a finding of incompetence

. ” ( Ibid .) Applying the reasoning in Lawley here, we see that neither d efendant nor his attorney expressly objected or otherwise inform ed the cour t that defendant was not seeking a finding of incompetence

. (See Lawley , supra , 27 Cal.4th at p. 133.) It was7

.

d efendant ’s attorney that requested d efendant be evaluated pursuant to section 1368. At the competency hearing, the defense attorney submitted on the evaluator’s report finding
d efendant incompetent to stand trial. Even though d efendant contends on appeal that he objected to the competency hearing in an unrelated motion to proceed in pro pria per sona , neither d efendant nor his defense attorney raised any objection at the competency hearing. As stated in Lawley , the requirement is on the defendant or the defendant’s counsel to “ ‘ inform [] the court ’ ” that the defendant is not seeking a finding of incompetence

. ( Lawley , at p p

. 132− 133.) Since the record does not show that d efendant
or his counsel informed the court that d efendant was not seeking a finding of incompetence, we find the trial court did not err in not appointing a second evaluat or under section 1369, subdivision (a). However, e ven if the trial court had erred in not appointing a second evaluator
under section 1369, subdivision (a), we cannot conclude there is a reasonable probability
that in the absence of error d efendant would have obtained a more favorable result. ( See
Leelu , supra , 42 Cal.App.5th at pp. 1031

– 10 32 ; People v. Lightsey , supra , 54 Cal.4th at
p. 699 ; People v. Watson , supra , 46 Cal.2d at p. 836.) We see no evidence in the record to support a conclusion that appointment of a second mental health expert would have
affected the trial court ’ s finding that d efendant was not competent to stand trial.
Defendant continually argued and interrupted the trial court until he had to be removed, refused to meet with his court appointed attorney, and insisted that the court was trying to deprive him of his right to represent himself. In concluding d efendant was incompetent to stand trial, the evaluator concluded d efendant ’s psychotic delusions rendered him incapable of rational decisions about self

- representation and that his mental illness rendered him incapable of rationally weighing the presence and extent of incriminating evidence, conveying pertinent information to his attorney or following courtroom testimony. On this record, it is not reasonably probable that d efendant would have been found competent to stand trial if the court had appointed a second evaluator.8

. DISPOSITION
The order is affirm ed

.