Filed 2/5/16 P. v. M edina 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

ROMMEL DAMIAN VASQUEZ MEDINA,

Defendant and Appellant. F069560

(Super. Ct. No. F 13905859 )



### OPINION

THE COURT *
APPEAL from a judgment of the Superior Court of Fresno County. Hilary A.
Chittick, Judge.
Cynthia L. Barnes , under appo intment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Eric L. Christoffersen and Sally Espinoza, Deputy Attorneys General, for

Plaintiff and Respondent.

- ooOoo

-

* Before Levy, Acting P.J., Franson, J. and Peña, J.2

Defendant Rommel Damian Vasquez Medina pled no contest to assault with a
firearm (Pen. Code, § 2 45, subd. (a)(2)) 1 and admitted a gang enhancement (§ 186.22,
subd. (b)(1)). The trial court sentenced him to the middle term of three years in prison,
plus a consecutive five

- year term on th e gang enhancement. On appeal, he contends the
trial court erred by failing to conduct a competency hearing because it was presented with
substantial evidence of his incompetence to stand trial. We affirm.

BACKGROUND
On March 14, 2014, defendant entered his no contest plea with no indication of the
sentence he would receive. The sentencing hearing was set for April 14, 2014.
On April 14, 2014, defense counsel stated he had not received the probation officer’s repor t and thus could not complete the memorandum he wished to submit. The
trial court noted it had received a fax from the Central Valley Regional Center (CVRC)
and stated it wanted to confirm that everyone had received a copy. The court stated:

“It’s a let ter and a psychological evaluation. The evaluation is old, but the letter is updated, and the letter questions whether [defendant is] competent.” The court agreed to
continue sentencing to May 12, 2014.
On May 9, 2014, defense counsel filed a statemen t in mitigation, asking the court
to stay the gang enhancement and sentence defendant to the middle term of three years. The statement described defendant’s background as follows:

“[Defendant] was born [in] 1988 in Fresno, California. He has lived in Ca lifornia’s Central Valley for most of his life with the exception of a brief stay in Utah from 2002 through 2003. In 2007, [defendant] was diagnosed as ‘an individual who is functioning between mild retardation and borderline intelligence.’ (See Exhibit A)
“[Defendant’s] low functioning resulted in an inability to hold down a steady job. [Defendant] reported that he was laid off from several jobs

1 All statutory references are to the Penal Code unless otherwise noted.3

because he was unable to remember what he was taught. Since that time, [defendant] has been a client of the [CVRC].
“Unable to succeed in school or hold down a job, [defendant] drifted toward gangs, alcohol and drugs. In 2011, [defendant] was placed on probation by Tulare County for narcotics violations.”
The statement then set out an argument for mitigati on of his sentence:
“[Defendant] continues to contend that he did not comm it the assault to which he pled no contest. Based on the significant risk of proceeding to trial, however, [defendant] decided to accept the District Attorney’s offer to resolve th e case. [Fn. omitted.]
“Even assuming that [defendant] is guilty, several factors should operate to mitigate his punishment. [Defendant] lacks an extensive criminal history. He is mentally challenged and therefore an easy target of manipulation by his so

- called ‘friends’ in the Norteno criminal street
gang.... [ 2 ] The Court could consider all of the above factors under [California Rules of Court, r] ule 4.413 as facts demonstrating unusual circumstances.
“The court should also view with skepticism some of the claims made by the probation officer in her report and recommendation. Other than the instant case there is no evidence that [defendant] ‘has engaged in violent conduct’. Utilizing this as an aggravating factor is nonsensical as
every assault with a firearm is

— by definition

— violent conduct. The probation officer uses the commission of the current crime as a factor to aggravate the punishment for the current crime, something that cannot be countenanced.
“Nor can it be said that [defendant’s] prior c onvictions are ‘numerous’ as he has only two such prior convictions. And while assault with a firearm is arguably more serious than the narcotics violations for which [defendant] was on probation, the sample size is far too small to suggest that the ‘incr easing seriousness’ of his criminal behavior is a factor in aggravation.
“Neither can the court properly use the dismissed counts as factors in aggravation. Each of the dismissed counts were alternative methods for charging the same conduct. The fact th at the district attorney’s office files

2 Omitted here is a sentence lined out by the trial court when defense counsel explained he had made an error.4

multiple charges criminalizing the same conduct does not aggravate the conduct that is charged.
“The Court can also consider the following factors in mitigation:

“ [ California Rules of Court, r ] ule 4.423(b)(2): The defendant was suffering from a mental or physical condition that significantly reduced culpability for the crime : As discussed above, [defendant’s] mental health challenges provide a partial excuse for his conduct.

“ [ California Rules of Court, r ] ule 4.4 23(b)(5 ): The defendant made restitution to the victim : *** [No information is referenced by these asterisks.]

“ [ California Rules of Court, r ] ule 4.423(b)(6 ): The defendant ’ s prior performance on probation or parole was satisfactory : While probation uses the fact that [defendant] was on felony probation at the time the crime was committed as a circumstance in aggravation, the Court should note that [defendant] had successfully served just over two years of his three year probationary term. He was not violated prior to his arrest for the instant offense.”
Attached to the statement in mitigation were three documents

— a fax cover sheet,

a brief cover letter to the trial court, and a 2007 psychological evaluation of defendant.

The brief cover letter wa s from Jose Rodriguez, Counselor/Service Coordinator at
CVRC, dated April 10, 2014. It stated the following:

“ The above named defendant was last seen before the court on 3/14/14. [Defendant] has been a client of [CV R C] since 2004. Please note that [defendant] has been in S pecial Education classes since an early age and is diagnosed as Borderline Intellectual Functioning status through Sullivan Center for Children, therefore competency would be questionable according to current diagnosis. Please fin d the enclosed Psychological Evaluation dated 12/21/2007 for your review. ”
The psychological evaluation was performed by Michael Kesselman, Ph.D. in
2007 when defendant was 19 years old. Defendant had been referred for the
psychological evaluation by C VRC “to assess his intellectual and adaptive level of
functioning.” Kesselman observed:5 “[Defendant] is neatly groomed and casually dressed. He is cooperative and puts forth a good effort. [He] is able to carry on a basic conversation. He speaks in bo th simple and complex sentences which are, for the most part, grammatically correct. [He] knows both Spanish and English but is more familiar with English.”
The report stated that defendant’s family began to notice he was slow and behind

other children when he was six years old and start ing school. Defendant told Kesselman

that he lived with his mother and sister. He said he had never lived on his own and could
not do so. He said he could cook simple foods like hamburgers or eggs, but not foods
requi ring cooking, mixing, and measuring. He had never learned to wash his clothes. He
could not manage money or pay bills. He could sometimes count correct change from a
purchase. He was able to walk around his hometown of Parlier, but did not take the bus

. He got nervous around a lot of people. He had never had mental health counseling or
taken any medications. He said he had had several jobs, but had been laid off from most
of them. Employers did not understand why he could not remember what they told him
to do from one day to the next. He said he would like to participate in a program to help
him find a job.
Kesselman administered tests and came to the following conclusions:

“On the WAIS

- III today, [defendant] obtained a Full Scale IQ of 67. Thi s which would suggest mild retardation. However, three previous cognitive assessments have found borderline intelligence. Therefore, I have given [defendant ] a provisional diagnosis of borderline intelligence. Consistent with a diagnosis of an individua l who is functioning between mild retardation and borderline intelligence would be results from academic achievement scores.
“[Defendant] does appear to have a number of substantial handicaps. He has a substantial handicap in his learning, as measured by his academic achievement scores and low IQ scores. He has a substantial handicap in his capacity to live independently, as he is unable to cook anything but simple foods, cannot manage his money, does not always count the correct change, and is unable to get around his home town independently. Additionally, [he] is unable to wash clothes. [He] has a substantial handicap in his capacity for economic self

- sufficiency. He has been laid off from several6

of the jobs he has had after a short period of time. The employers get frustrated when [he] cannot remember from one day to the next what they have taught him.
“[Defendant’s] relatively high score on the Street Survival Skills Questionnaire suggests he might benefit from an independent living program and m ight, in fact, be able to live independently. [He] does have some relatively good non

- verbal skills. He might be taught some type of vocational task. I would consider working in conjunction with vocational rehabilitation as [he] may fit in better with i ndividuals who are of borderline intelligence vocationally.
“Should the [CVRC] accept [defendant] as a client, 1 would consider

re

- evaluating [him] in three years or possibly sooner if the case worker has reports that [he] is able to live independently. He does seem to have this potential but is unable to do so now. 1 believe that this inability is due to cognitive deficits.”
On May 13 , 2014, the sentencing hearing took place and the following occurred:

“THE COURT: All right. We are on the record in the matter of [defendant]

. Today is the date set for sentencing. The court has received and had an opportunity to review the report and recommendation of the probation department. I have also received and had an opportunity to review the victim impac t statement ... and have considered that.

· I have also received the statement in mitigation filed on behalf of [defendant] as well as the psychological evaluation from 2007 done by Mr. Kesselman and the note from Jose Rodriguez, the CVRC counselor service co ordinator. [¶]

... [¶]
“The recommendation in this matter is for nine years . That would be the aggravated term plus the five years for the 186.22(a) consecutive. · The court has indicated in chambers a thought to give either seven or eight years in this ma tter, however, I’ll hear from both counsel. [¶] [Defense counsel], you wish to be heard?

“[DEFENSE COUNSEL]: Yes. Thank you, Your Honor. [¶]

... [¶] [T]he statement in mitigation references an Exhibit A which was not attached. · The Exhibit A that was being referenced was the letter from CVRC which the court has referenced in its remarks and I just want to make that clear.

“THE COURT: Okay.7 “[DEFENSE COUNSEL]: Your Honor, with respect to the court’s ruling I would just reiterate the points made in t he statement in mitigation regarding the probation officer’s analysis of this case. The aggravating factors that are listed in this particular case are stretched at to get this. You cannot use the aggravating factor that [defendant] has engaged in violen t conduct which presents a danger to society because that’s not aggravating to the crime which he has pled to. The crime itself is the violent conduct. · You can’t aggravate the crime by using the crime. That’s improper analysis by the probation officer.
“Furthermore, I think it is a stretch to suggest because [defendant] committed a more serious offense arguably than his narcotics offense out of Tulare County that he has a criminal history that is numerous or increasing in seriousness. We have evidence of two distinct convictions that [defendant] has. That’s far too small of a sample size to make the comments that the probation officer makes, nor was it appropriate to

— for the court to use the dismissed counts as an aggravating factor in this case becaus e the dismissed counts were simply different ways of pleading the

same conduct. No counts were dismissed that aren’t, in fact, part of the plea agreement with the possible exception of the personal use allegation, but that is, I think, part and parcel of the agreement anyway. We all understand what [defendant] has pled to here.
“On the mitigating side of things, clearly [defendant] suffers from a mental condition. · It’s set forth in the letter from CVRC the diagnosis from CVRC. · He’s been receiving servi ces from [CVRC] for several years. And while I disagree with the letter suggesting that there are competency issues in this case, I think [defendant] understands what the nature of the charges are, understands the court proceedings and can effectively ass ist counsel in his own defense. · That doesn’t go as far as to say that he is sufficiently sophisticated to engage in planning, to engage in the type of planning that would be involved in this particular incident. · And it is clear that to the extent that [d efendant] was involved, he was involved as the patsy of his other so

- called friends in the street gang who manipulated him and preyed upon him in order to get him to commit criminal conduct on their behalf, pretending to be friends of his, pretending to gi ve, you know, give him a home in the place where he can feel accepted.
“I think it’s striking that [defendant] made every effort in his young adult life to be a positive contributor to society. He had several jobs. He studied hard. · He worked hard at th e [CVRC]. And in each one of his employment situations he was let go because he was unable to perform to8

the level of expectations required of him due to his mental disabilities. The same thing happened at school.
“So what we see in [defendant] is a per son who, through no fault of his own, has been marginalized, has been made to feel other[,] left out of society in the sense that he’s not been able to contribute in a positive way, and he’s been sort of left on the margins, and those unfortunately are the type of people that gang members prey upon. · They give them a sense of belonging, a sense of community, a sense of family, a sense that they are valuable, and based on that induce them to committing criminal activity that otherwise they probably would not engage in.
“We discussed in chambers, and I will not make any further reference to the restitution that [defendant] has attempted to provide to the County of Fresno.
“And I would note that apart from this case [defendant] was performing well on the te rms of his Tulare County probation. · There were no violations. · He did not appear to have dropped out of contact with probation or failed to report to his drug treatment for his drug treatment obligations. [¶] ... [¶]
“ ... And finally, Your Honor, just noti ng that the basis for [defendant’s] plea was for sentencing benefit. Clearly he was exposed to a significant amount of time in custody were he to have proceeded to trial and lost. [Defendant] steadfastly denies that he’s the person who shot at [the victi m].... [¶] I would submit on those comments. [¶] ... [¶]
“ ... Your Honor, the one comment that I would make with respect to the prior conviction is that it is commonly testified to by the detectives on the MAGEC unit that a tactic of street gangs, especiall y organized street gangs like the Nortenos in particular, is to utilize other people’s houses for the placement of their guns and their drugs so as to deflect attention from themselves. · While [defendant] did plead guilty to those charges and we
cannot now argue that he has not been convicted of those charges, I would caution the court about how much weight to put on the facts of that case given that we don’t know the basis for the search warrant in the case. · We don’t know exactly what [defendant’s] role i n this was other than that guns and drugs were found in the home of a gang member. · And a gang member who has mental challenges and can provide those individuals with an
easy

— an easy mark and a good patsy for taking the fall for their cases, and I would su bmit on those comments and the comments of misstatement [ sic ] of mitigation. · We’re asking the court to sentence [defendant] to the mitigated term.9 “THE COURT: · Okay. · Anything further?
“[PROSECUTOR]: No, Your Honor. Thank you.

“[DEFENSE COUNSEL]: Submitted, Your Honor.
“THE COURT: Okay. · The statement in mitigation asked the court to stay or strike the gang enhancement punishment and sentence [defendant] to the middle term of three years. · The court is not going to do that because it does seem to the court that it would be inappropriate for the court to stay or strike the gang enhancement in this case. · [Defendant] participated in this

— this shooting was purely a gang shooting. · And it was against not a rival gang, but against a completely innocent individual who had the bad luck to wear the wrong color T

- shirt. · So unusual circumstances are required in this case for probation. · The court does not find unusual circumstances to grant probation and so probation in this case is denied.

“The circumstan ces in aggravation that the court does find are that the defendant was [on] probation or parole when the crime

— probation when the crime was committed. · The facts of this case in the court’s mind are particularly egregious. The gun was actually fired. · The victim was actually injured. The statement that the victim wrote to the court details the difficulties that he now has as a result of the injuries that he sustained. · The court will consider that as a factor in aggravation.
“With respect to factors in m itigation, the defendant did plead at an early stage although he denies any wrongdoing. The court does believe the defendant’s diminished mental capacity are a factor in mitigation relating to the defendant, and the court will find therefore that the aggr avating and mitigating circumstances are in balance.
“Sentence the defendant to the middle term of three years. · The enhancement pursuant to 186.22(b)(1) is an additional five years. · As I interpret that under 1192.7(a) this was a personal use of a gun an d therefore it’s a five

- year as opposed to a two, three, four or a ten which are the other options that are available. · So the addition of five years for a total of term of eight years.”

DISCUSSION

I. Law

Both the federal Constitution and our state statutes forbid criminal prosecution of a person who is mentally incompetent. ( Pate v. Robinson (1966) 383 U.S. 375, 3 78;10

§ 1367, subd. (a). ) The constitutional test is whether the defendant “‘ has sufficient
present ability to consult with his lawyer wit h a reasonable degree of rational
understanding

— and whether he has a rational as well as factual understanding of the
proceedings against him. ’” ( Dusky v. United States ( 1960) 362 U.S. 402. ) Similarly,
state statutes forbid prosecution while the defendant, “ as a result of mental disorder or developmental disability ... is unable 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).)
Section 1368 pr ovides that, when “a doubt arises in the mind of the judge as to the
mental competence of the defendant, [the judge] shall state that doubt in the record and
inquire of [defense counsel] whether, in the opinion of [defense counsel], the defendant is

mental ly competent.” (§ 1368, subd. (a).) If defense counsel then “informs the court that

he or she believes the defendant is or may be mentally incompetent, the court shall order
that the question of the defendant ’ s mental competence is to be determined in a hearing
which is held pursuant to Sections 1368.1 and 1369. If counsel informs the court that he

or she believes the defendant is mentally competent, the court m ay nevertheless order a
hearing

. ” ( Id. , subd. (b ).) When the court has ordered a hearing to make a determination into the defendant’s competence, it must suspend the criminal prosecution until the
question of the defendant’s mental competence has been determined. 3 ( Id., subd. (c).)

The provisions of section 1368 have been interpreted to afford a constitutional
right. If the judge makes an express declaration of doubt as to a defendant ’ s competence,

the court is required to hold a competency hearing and make a formal determination
regarding the defendant ’ s competence. ( People v. Marks (1988) 45 Cal.3d 1335, 1340 .)

3 “ Although it arises in the context of a criminal trial, a competency hearing is a special proceeding, governed generally by the rules applicab le to civil proceedings. [Citation s .] A defendant is presumed competent unless the contrary is proven by a preponderance of the evidence. ” ( People v. Lawley (2002) 27 Cal.4th 102, 131.)11

If the judge does not make an express declaration of doubt, but a defendant has
nevertheless presented substantial evidence that he is incompetent, the court is similarly
required to conduct a hearing and make a formal deter mination. ( People v. Hale (1988)
44 Cal.3d 531, 539 ; People v. Pennington (1967) 66 Cal.2d 508, 518

- 519 ( Pennington ).)

“‘ Substantial evidence ’ has been defined as evidence that raises a reasonable
doubt concerning the defendant ’ s competence to stand tri al.” ( People v. Welch (1999)

20 Cal.4th 701, 7 38.) Substantial evidence of incompetence may come from any source,
and the trial court, in deciding whether substantial evidence of incompetence exists, “must consider all of the relevant circumstances.” ( P eople v. Howard (1992)

1 Cal.4th 1132, 1164; Drope v. Missouri (1975) 420 U.S. 162, 180.) “In People v.
Pennington, supra , 66 Cal.2d at page 519, [the Supreme Court] enunciated the following
standards regarding what would constitute substantial evidence o f incompetence to stand

trial: ‘ If a psychiatrist or qualified psychologist [citation], who has had sufficient
opportunity to examine the accused, states under oath with particularity that in his
professional opinion the accused is, because of mental illn ess, 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, the substantial

- evidence test is satisfied.’” ( People v. Welc h, supra, 20 Ca l.4th at p. 738.)

When substantial evidence appears, a doubt as to the defendant ’ s competence
exists, “ no matter how persuasive other evidence

— testimony of prosecution witnesses or

the court ’ s own observations of the accused

— may be to the contrary. ” ( Pennington,

supra, 66 Cal.2d at p. 518; see id. at p. 519 [defendant presented substantial evidence he
was incompetent and prosecution presented substantial evidence he was competent;

“ however, once it is determined that defendant ’ s showing was substantial , it is immaterial
that the prosecution ’ s evidence may seem more persuasive ” ; “ conflict can only be
resolved upon a special trial before the judge or jury, if a jury is requested ” ]. ) At this
point, if the court proceeds with a criminal prosecution without first making a formal12

determination that the defendant is, in fact, competent to stand trial, the defendant is
denied his constitutional right to a fair trial

. (See People v. Ary (2004) 118 Cal.App.4th
1016, 1020; see also Pate v. Robinson

, supra, 383 U.S. at pp. 384

- 385.)

If , on the other hand, the evidence of the defendant ’ s incompetence is less than

substantial (and the court has not expressed a doubt as to his competence) , the decision to
conduct a hearing is in the trial court’s discretion. ( Pennington, supra, 66 Cal.2d

at p. 518.) The court may first choose to hold further informal hearings to assist it in
determining whether there is substantial evidence of incompetence. ( People v. Johnson
(1991) 235 Cal.App.3d 1157, 1162, citing People v . Ashley (1963) 59 Cal.2d 339, 363.)

When a trial court is required to make a formal competency determination,

defense counsel cannot waive that determination on behalf of the defendant. (See
People v. Marks, supra, 45 Cal.3d at p. 1340.) If a trial cou rt fails to make a formal
determination once it is required to do so, that court ’ s order directing the reinstitution of
criminal proceedings is an act in excess of its jurisdiction . ( Id. at p. 1337.)

II. Analysis
In this case, the trial court did not exp ress a doubt as to defendant ’ s mental
competence. Thus, the question here is whether the court was presented with substantial evidence of defendant’s mental incompetence, such that the court was required to conduct a hearing a make a formal determination of his competence. ( People v. Hale,

supra, 44 Cal.3d at p. 539; Penningto n, supra, 66 Cal.2d at pp. 518

- 519.)
Defendant asserts that the documents supplied by CVRC and attached to his
statement in mitigation provided the necessary substantial evidence of his incompetence.
We disagree.
In considering all of the relevant circumstances, the trial court was required to consider defense counsel’s “undoubtedly relevant” opinion regarding defendant’s
competence. ( People v. Howard, supra, 1 Cal.4th at p. 1164. ) Defense counsel was of
the unambiguous opinion that defendant was competent to stand trial. Counsel stressed13

that the psychological evaluation he was presenting did not demonstrate defendant’s
incompetence, but was for the sole purpose of justifying th e court’s imposition of a
mitigated sentence on the ground that defendant’s lack of sophistication to engage in the
planning required of this particular crime demonstrated that he had been manipulated and
preyed upon to commit criminal conduct on behalf of gang members. Defense counsel
specifically explained to the court that he did not believe defendant’s mental condition
rendered him incompetent, and that he believed defendant understood the nature of the
charges and the court proceedings, and could effe ctively assist counsel in his own defense. Consequently, defense counsel’s opinion did not raise any doubt as to
defendant’s competence to stand trial.
Furthermore, the content of the psychological evaluation itself did not raise a

reasonable doubt conce rning defendant’s competence to stand trial. Kesselman observed
that defendant was well groomed, cooperative, and made a good effort. He could speak
two languages. He spoke in both simple and complex sentences and with generally

correct grammar . He des cribed himself as a 19 year old who lived with his family and
did not know how to cook or wash clothes. He walked around town, but did not ride the
bus and did not always count correct change. He had trouble learning and remembering
what employers asked of him on previous days. He was interested in getting another job.
Kesselman concluded defendant was provisionally borderline intelligent, and possibly
mildly retarded. He scored relatively high on “ Street Survival Skills ” and had some
relatively good n on

- verbal skills, such that he might be able to live independently in the

future. This evaluation in no way suggested that defendant’s mental deficits were so great
that he could not understand the nature of the criminal proceedings or rationally assist

d efense counsel in presenting a defense. Rather, it suggested that despite those deficits,

at 19 years old, he was able to present himself in a favorable manner and communicate
moderately well, and he was even likely able to live independently (which he ma y or may14

not have done in the following seven years). We also note that Kesselman’s evaluation
of defendant was not performed for the purpose of determining his competence to stand
trial, a topic Kesselman never mentioned and which, if he had, would never theless have
been outdated by seven years. Kesselman’s observations and conclusions regarding
defendant’s mental deficits, while certainly relevant to the court’s consideration, were

made to assess 19

- year

- old defendant’s ability to live, work, and functi on on his own, not

to assess 26

- year

- old defendant’s ability to understand the natur e of the criminal
proceedings and rationally assist counsel in presenting a defense. 4
We conclude there was no substantial evidence defendant was incompetent to

stand tria l. Accordingly, the trial court was not required to conduct a competency
hearing, and it did not abuse its discretion in declining to do so. ( Pennington, supra,

66 Cal.2d at p. 518.)

DISPOSITION
The judgment is affirmed.

4 For that reason, many of Kesselman’s observations, such as 19

- ye ar

- old defendant’s lack of domestic skills such as cooking or doing laundry, had little application to his competence to stand trial.