1 Filed 1/29/14 P. v. Denton CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sierra)

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THE PEOPLE, Plaintiff and Respondent,

v. STEVEN ANTHONY DENTON, Defendant and Appellant. C072568 (Super. Ct. No. CR02937X)

Defendant Steven Anthony Denton pled no contest to arson in exchange for
dismissal of an on-bail/own r ecognizance allegation as well as dismissal of case No. CR02911X (felony vandalism). The court grante d probation for a term of five years and ordered defendant to register as an arson offender. Defendant appeals. A certificate of probable cause was obt ained. Defendant contends the trial court lacked jurisdiction to accept his plea and enter judgment because there was a doubt as to his compet ence. We disagree and affirm.2 FACTS On April 29, 2012, a brush fire burned one-eighth of an acre, a wooded area with heavy forest undergrowth, near the Loyalton Senior Apartments. No one was injured and no structures were damaged. According to witn esses, defendant had be en seen in the area before the fire started. Based on prior contacts, deputy sheriffs knew that defendant
suffered from mental illness and had exhibite d violent behavior. Later that evening, deputy sheriffs located defend ant, transported him to the substation and, after having advised him of his rights pursuant to Miranda , 1 interviewed him. Although defendant initially denied any involvement in the fire, he eventually admitte d that he caused the fire: “ ‘I tried to put the fire out. It was an accident; I didn’t do it on purpose. . . . I wanted to camp out . . . . I’m sorry it caused such a big fire.’ ” He denied setting other fires: “ ‘No, I have not. That was just an accident fire, today; I was afraid to tell the truth, I was afraid of the consequences.’ ” He also stated many tim es that he tried to extinguish the fire and that he had lit a small twig and the fi re just grew. When he was told he was being arrested for arson, defe ndant initially resisted being handcuffed but once secured, he cooperated.
DISCUSSION
Defendant contends the tria l court lacked jurisdiction to accept his plea and enter judgment. He argues the trial court ha d a mandatory duty to suspend criminal proceedings and institute Penal Code 2 section 1368 proceedings. We reject defendant’s contention, finding no substantia l evidence in the r ecord to create a re asonable doubt that
defendant was unable to understa nd the proceedings or to assist counsel in the conduct of
a defense in a rational manner.

1 Miranda v. Arizona (1966) 384 U.S. 43 6 [16 L.Ed.2d 694].

2 All further section references are to the Penal Code.3 I Standard Of Review The prohibition against trying a mentally incompetent defenda nt “is fundamental to an adversary system of justice.” ( Drope v. Missouri (1975) 420 U.S. 162, 172 [43 L.Ed.2d 103, 113].) The compet ency test is “ ‘whether [the defendant] has sufficient present ability to consult with his lawyer with 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. 4 02 [4 L.Ed.2d 824, 825].) “State constitutional authority is to the same effect. [Citation.] [¶] The applicable state statutes essentially parallel the stat e and federal constitutional directives.” ( People v. Lightsey (2012) 54 Cal.4th 668, 691.) Sectio n 1367 provides in relevant part: “(a) A person cannot be tried or adjudged to punishment while that person is mentally incompetent. A defendant is mentally incompetent for purposes of this chapter if, as a result of mental disorder or developmen tal disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a
defense in a rational manner.” A defendant is presumed to be mentally competent to stand trial. (§ 1369, subd. (f).) If a doubt aris es in the mind of the judge as to the mental competence of the defendant, the judge shall susp end the criminal proceedings and order that the question of the defendant’s mental co mpetence be determined at a hearing after the defendant has been examined by an appr opriate expert appointed by the judge. (§§ 1368, 13 68.1, 1369.) Even if the judge believes the defendant is competent based on the judge’s own observations, the judge must, on the court’ s own motion, declare a doubt and suspend proceedings when the court becomes awar e of substantial evidence of mental incompetence. ( People v. Pennington (1967) 66 Cal.2d 508, 518; People v. Jones (1991) 53 Cal.3d 1115, 1153.)4 “[E]vidence of a defendant’s irrational be havior, his demeanor at trial, and any prior medical opinion on competence to stand tr ial are all relevant in determining whether further inquiry is required, but that even one of these factors standing alone may, in some circumstances, be sufficient. There are, of course, no fixed or immutable signs which invariably indicate the need for further inquiry to determ ine fitness to proceed; the question is often a difficult one in which a wide range of manife stations and subtle nuances are implicated.” ( Drope v. Missouri, supra , 420 U.S. at p. 180 [43 L.Ed.2d at p. 118].) “ ‘[M]ore is required to raise a doubt than mere bizarre actions [citation] or bizarre statements [citation] or statements of defense counsel that defendant is incapable of cooperating in his defense [citation] or psychiatric testimony that defendant is immature, dangerous, psycho pathic, or homicidal or such diagnosis with little reference to defendant’s ability to assist in his own defense .’ ” ( People v. Davis (1995) 10 Cal.4th 463, 527, italics added.) A court considers all relevant circumstances as well as counsel’s opinion. ( People v. Howard (1992) 1 Cal.4th 1132, 1164.)
When substantial evidence exists, the judge has no di scretion on whether to order a competency hearing. ( People v. Superior Court ( Marks ) (1991) 1 Cal.4th 56, 68-69.) If the judge fails to do so, th e judge has acted in excess of his or her jurisdiction, depriving the defendant of a fair trial and rendering that resulting judgment a nullity. ( Id

. at pp. 70-71.)
II Procedural Background At the April 30, 2012, arraignment on th e complaint, public defender J. Lon Cooper was appointed and defe ndant entered a not guilty plea. The court ordered an assessment at “Alta Sierra Center” (Alta), no ting defendant’s special mental health and medical needs and the requirement of supervis ion. There is no reporter’s transcript of this proceeding, only case history notes.5 On May 9, 2012, the probation officer filed a bail report recounting defendant’s family history, employment history, a nd other information which was obtained from
defendant’s social worker and confirmed by defendant’s mother. With respect to defendant’s family history, defendant’s moth er was “abused by his father on a regular basis” and defendant probably “witnessed th is on multiple occasions.” As far as employment, defendant “worked a number of sm all jobs” and “[a]s long as he was taking his medications, he reportedly performed quite well.” U nder other information, the probation officer recounted that defendant suffered brain trauma twice, the first time when he was four years old (fell from a sec ond story balcony) and the second time when he was 14 years old (hit by a car). He was al so sexually abused wh en he was in second grade and as a result, he attempted suicide by hanging. When he was 15 years of age, he shot and killed his nine-year-old brother when they were playing with a loaded firearm. Defendant was not charged but it was never confirmed whether it was an accident. Defendant started experiencing auditory and visual hallucinations when he was 14 and was diagnosed as a schizophrenic when he wa s 15. He has attempted suicide more than 10 times, the latest in Februa ry 2012, having never recove red from his brother’s death according to his mother. At 18, he started liv ing on his own and was pl aced in housing in Loyalton. Defendant has had psychotic episodes and has been in a mental hospital six times in the last five year s, staying from two weeks to five months each time. Defendant’s mother “doesn’t think [defendant ] fully comprehends the court process. She says he realizes he is in trouble but otherwise does not und erstand what is happening in court or what the consequences are. His social worker says that he responds best to very short and direct questions, but is easily conf used by compound/complex questions. His IQ is approximately 62. That being said, his mother did say he received a high school diploma through the special education program. ” Based on defendant’s social history, it was the probation officer’s opinion that it wa s a “tragic case” and th at defendant should remain in custody or possibly be rel eased to a locked mental facility.6 On May 11, 2012, defendant appeared with attorney Cooper who advised the court that defendant would waive his right to a pr eliminary hearing. The court found that defendant understood and waived his rights a nd held him to answer. Again, there is no reporter’s transcript of this pro ceeding, only case history notes. At the May 25, 2012, arraignment on the information, defendant appeared with Cooper who waived formal reading of the information , commenting that defendant “understands what the charges are, ” and advisement of his ri ghts and consequences, and entered a not guilty plea on defe ndant’s behalf. (Italics adde d.) Cooper advised that time
was not waived and that he needed an a ssessment in order to assist defendant: “[Defendant] is waiting to get an assessment. And, really, in terms in which I can assist my client, I have to get that assessment. I don’t know why it has taken weeks and weeks
and weeks. But it needs to be done in terms of his possible placement. He is tired of sitting and waiting around in ja il, and I don’t blame him. And I also need a chance -- in terms of fully comprehending what he comprehend s, it is a real fine line as to whether he is clear about what is going on. So I’m not comfortable with that. So we need an

assessment. ” (Italics added.) The prosecutor noted that “if counsel is concerned about
whether or not the defendant is understanding what is goi ng on, a 1368 is appropriate, and get this suspended until we get a report.” Cooper responded that he was “aware of the statutory vehicles” he coul d use but that “an assessment would be helpful” to him and that he did not want to “just assume that this is the appropr iate thing to do . . . .” At a pretrial conference on June 8, 20 12, the parties discussed a time waiver for purposes of completing the “psyche evaluation. ” Cooper stated, “I have talked to [defendant] somewhat. I do believe he under stands the significance of a time waiver,
which is no time waiver. I think he is ca pable of entering a time waiver today for a limited period. We have discusse d the details. He is in custod y . . . I believe he is willing to waive time to [July 18]. I suggest that da te, because he met with someone out at the California Regional Services for a couple of hours. They interviewed him, and his7 [p]syche evaluation is for June 26. I would like to have th e benefit of the information obtained in that, so it would assist me.” The court confirmed with defendant that he understood his right to a trial within 60 days, and that he waived his right until July 13 (the first law and motion date after June 26). At the pretrial conference on July 13, 2012, due to a “Sheriff’s office problem,” defendant was not transported to be persona lly present but was in custody and attended
via video conference. Defendant stated that he could hear the judge and would let the judge know when he could not hear, and re sponded “[g]ood” when asked how he was doing. Cooper had “just been handed a copy” of a “ letter from Alta California Regional Center,” (italics added) not an “assessment,” which indicated that defendant qualified for their services. Cooper noted that the prosecutor was “not particularly happy about the way this case is proceeding.” Cooper knew that an evalua tion was scheduled for June 26, had spoken with Alta about the assessment, and “fully expected” to appear with defendant personally present a nd with the assessment in ha nd, commenting if he thought
he “needed to do more to get that, [he] would have do ne so.” The prosecutor expected more than a letter as well. Cooper also not ed that defendant had entered a limited time waiver but “we can’t keep doing that,” and that Cooper “still ha[d] nothing in front of [him] that helps [him] assess that this is a possible 1368 s ituation . . . , be ing taken out of the criminal system to deal with [defendant’s] issues. ” (Italics added.) The prosecutor concurred with Cooper’s eval uation of the case and that Cooper needed the “[p]syche assessment to know what is going on with [d efendant],” noting that “Human Services got involved in this early on.” 3 Cooper commented that he needed something in writing in

3 The prosecutor may have been referring to the fact that on April 24, 2012, after a felony vandalism offense (pri or to the arson offense), th e court “ordered that the defendant undergo a Department of Deve lopmental Disability Assessment at the defendant’s cost at the direction of John Hiatt, Sierra County Human Services Adult Protection Social Worker.”8 order to “feel comfortable saying to [defenda nt], do you want to waive time.” Cooper requested that the matter be set for trial and that a “pre-probation report” be prepared to “assist us . . . and maybe by the time our next pretrial is set, we will have . . . this assessment, whatever it is.” Cooper also st ated that “we need a ll the information for [defendant] that we can get” but that defe ndant did not “have an issue” with further county time and then placemen t with Alta “because he has special needs.” The prosecutor did not object to a “p re-plea” report, noting that “people got involved in this that shouldn’t get involved, to the detriment of [defendant].” Defendant confirmed that he understood that he had the right to go to tr ial within 60 days a nd that he needed to
“move ahead” with the case. De fendant agreed to a trial date of September 5, 2012, with the next pretrial on July 27 with the court’ s assurance that he would be transported and personally present. The court directed pr obation to prepare a “pre-plea report” by July 27. The court apologized to defendant that he was “not here today, you are supposed to be.” Defendant responded, “I know. I thought so too. The time came and I couldn’t come to court,” and thanked th e court for its apology. In the preplea report filed July 24, 2012, the probation officer summarized not only the facts underlying the arson but also those underlying a felony vandalism offense which occurred on February 14, 2012. Defend ant was caught on vide o kicking a vending machine at a market, causing extensive da mage (approximately $1,000). When asked about the incident, defendant stated: “ ‘I was out last night riding my bike. I was in a bad mood last night so I took it out on the Co ke machine. I know it was wrong and I am very sorry. . . . I don’t know why I did it but I have been feeling this way for the past two days. I have not been taking the medication; I know I am supposed to take it. I kicked the machine several times with my feet, then the lights went out in the machine and I left. I was not trying to steal money from the ma chine. I just wanted to damage it.’ ” The probation officer also reported that on July 16, 2012, sh e obtained a copy of the psychological evalua tion performed on defendant by Jeffrey Miller and completed on9 June 26, 2012, noting that the “ primary purpose of the ev aluation was to assess the defendant’s intellectual and emotional functioning , his adaptive behavior skills in order to clarify his diagnosis, assist in the determ ination of his eligibility for Regional Center Services, and make recommendations concerning treatment and residential placement.” (Italics added.) The probation officer reported that Miller di agnosed defendant as having “Schizoaffective Disorder, Pos ttraumatic Stress Disorder, Mild Mental Retardation with a full scale IQ of 53, Dependent Personality Tr aits, Posttraumatic Brain Injury, Seizure Disorder, Von Willebrand Dise ase, Hypertension, and Poly cystic Kidney Disease.” The probation officer included Miller’s reco mmendations: “That the defendant access individual psychotherapy and medication management focuse d on improving impulse and anger control ; upon release he should be placed in a care home or residential facility and should not live independently at this time; and that he par ticipate in a vocational training program or a day program for developmentally disabled adults.” (Italics added.) The probation officer reported that Miller’s evaluation “ did not address if the defendant has the ability to understand and participate in th e court process due to his mild mental retardation with an IQ of 53 ” and did not address what thre at level defendant poses to society. (Italics added.) The probation offi cer did not attach Miller’s evaluation and the same does not appear in the record on appeal. The probation officer noted that on July 17, 2012, she spoke with Alta’s service coordinator supervisor abou t defendant’s eligibility unde r the “category of mild retardation,” the residential facility r ecommended defendant’s placement, and the likelihood of defendant qualifying fo r the placement with in 60 days. The probation officer also stated th at when defendant did not take his “psychotropic medications as prescribed, he engages in behaviors that have resulted in the law violations pending before the cour t.” The probation officer considered it “problematic” whether to recommend e ither probation or prison “[w]ithout a determination as to the defendant’s ability to understand and par ticipate in the court10 process” as well as the risk he posed to societ y if released. It was the probation officer’s opinion that it was “questiona ble” whether defendant had th e ability to understand terms
and conditions but that “medication compliance” (def endant took Abilify, lithium, and Haldol) was “critical” and noted that when he took his medications, “[h]is behavior is under good control.” On July 27, 2012, defendant entered his plea to arson. The court meticulously reviewed the plea agreement w ith defendant, as well as de fendant’s written plea form, and defendant responded appropriately to all questions. Cooper stated that defendant took “a number of medications” but Cooper felt defendant “ clearly understands what he is doing today ,” having discussed it with defendant and that the “medications would not affect his ability to comprehend what is happening here toda y.” In defendant’s plea form,
reference is made to Miller’s evaluation dated June 26, 2012, for the list of medications. Defendant confirmed that he heard what Cooper said and agreed that the medications he was taking did not affect his ability to under stand. Cooper confirmed that he was satisfied that defendant understood his rights , defenses, and conseque nces of the case. On August 2, 2012, defendant was placed at a home care facility in Sacramento. Alta’s service coordinator supervisor advised probation that they we re “lucky” to obtain placement for defendant who now had a felony arson conviction with which he was not eligible for Alta’s diversi on program which guarantees tw o years of services paid completely by Alta. Without diversion, defe ndant would receive only eight mental health sessions through the county mental health but paid for by Alta. Alta hoped that defendant’s felony could be reduced to a misd emeanor so that he could be enrolled in diversion. The probation o fficer recommended probation. At sentencing on September 14, 2012, defe ndant appeared and was not in custody. Cooper confirmed that there was no legal ca use why judgment should not be imposed. Cooper commented that his concerns were th e defendant’s “special needs” but Cooper was “satisfied, from talking to [defendant], that he is happy with the placement where he11 is” and that he is “getting counseling, as inst ructed” and “wants to be successful with his probation.” Defendant had not hing to add. The court then granted probation. In discussing factors related to defendant, the co urt noted “[w]hile the defendant’s IQ is 53, he appears able to understand when give n simple basic directives.” An Alta representative stated that defendant would r eceive help to register as an arson offender but noted that such registration “will slow hi s admission to any placement or any care
home for him.” Defendant co nfirmed that he understood the terms and conditions of probation as stated by the court and confirme d that he agreed to be bound by them. When asked if he had any questions about how he appealed after the court explained it, defendant responded, “Not right now.” Defe ndant confirmed that he understood how to appeal. In a letter to Cooper dated October 22, 2012, after sentencing , an Alta intensive intervention specialist explaine d that defendant wanted to appeal, claiming defendant did not “understand what he was doing,” and afte r sentencing, “was unable to explain what had just gone on in his hearing or in any of the previous he arings.” The specialist also claimed that defendant was “unable to explain wh at it meant to register as an arsonist or what the result could potentially be if he didn ’t comply with his cond itions of probation.” The specialist stated that Alta “is concerned that [defendant ] was not competent to stand trial and was therefore, not competent to issu e a plea or accept a plea agreement.” Based on defendant’s low IQ and impaired memory , the specialist opined that “it is highly unlikely that he would have been able to understand the criminal proceedings or the consequences of any plea agreem ents he was being offered.” The specialist stated,

“ When concern about his compet ency was brought to your a ttention . . . , you reported . . . that you felt [defendant] understood e nough to go forward with his case. ” (Italics added.) The specialist attach ed a note purportedly written by defendant stating that he wanted to appeal and claiming he did not understand what he was doing when he entered his plea.12 III The Court’s Ruling
Defendant contends the trial court’s mandatory duty to suspend criminal proceedings and institute secti on 1368 proceedings was “first triggered at arraignment” when Cooper stated that he was not sure that defendant unders tood and that he needed an
assessment. Defendant claims the trial court was next alerte d when the preplea probation report stated that defendant’s IQ was 53 (w hich raised a question about defendant’s competency) and that the psyc hological evaluation did not addr ess the issue. Defendant claims Cooper’s opinion that defendant under stood when he entered his plea “did not relieve the court of its duty to suspend procee dings in light of the substantial evidence before it that [defendant] was significantly developmentally disabled and suffering from multiple mental disorders.” At arraignment, Cooper stated that defe ndant understood what the charges were but Cooper wanted the previously ordered assessment to ensure that defendant was “clear about what is going on.” That defendant’s IQ level of 53 indicated mild retardation did not negate the fact that, according to his social worker, defendant understood short and direct questions. Defendant also receiv ed a high school diploma through a special education program. When defendant entered hi s plea he responded appropriately to all questions and defense counsel felt that defendant “clearly” understood the plea proceedings, his rights, defens es, and consequences. At se ntencing, Coope r noted that defendant was “happy” with hi s placement. Defendant conf irmed that he understood the terms and conditions of probati on and agreed to them. That an Alta specialist was of the opinion over a month after sentencing that de fendant had not understood when he entered his plea and was sentenced does not change the ev idence in the record which reflects just the opposite. It is defendant’s present ability at the time of trial and prior to judgment that is significant in any competency determination. ( Dusky v. United States, supra, 362 U.S. 402 [4 L.Ed .2d 824]; see also § 1368, subd. (a).) Although defendant had a13 developmental disability, he obtained his hi gh school diploma a nd understood short and direct questions. He had a mental disorder bu t the evidence indicated that as long as he took his medications, there were no beha vioral problems. We conclude that no substantial evidence was presented indicati ng defendant’s inability to understand the proceedings or to rationally assist Cooper in the conduct of the case.
DISPOSITION The judgment is affirmed.

ROBIE , J.

We concur:

BLEASE , Acting P. J.

MAURO , J.