Filed 4/16/15 P. v. Lingor CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE



THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A140996
v.
JULIE ANN LINGOR,                                                    (Alameda County
                                                                     Super. Ct. No. C161045)
         Defendant and Appellant.


         In this appeal, Julie Ann Lingor challenges an order revoking her probation. Her
sole contention is that the trial court erred in failing to suspend the probation revocation
proceedings so that it could conduct a hearing to determine her competency. (Pen. Code,
§ 1368, subds. (a), (c).)1 After a careful examination of the record, we conclude the
evidence before the trial court did not require it to order a competency hearing.
Accordingly, we will affirm.
                                FACTUAL AND PROCEDURAL BACKGROUND
         In April 2009, Lingor pushed her elderly mother to the ground and threw water on
her. Lingor pleaded guilty to elder abuse (§ 368, subd. (b)(1)) and was granted probation.
In the succeeding years, her probation was revoked and reinstated following various
probation violations. In May 2013, Lingor assaulted a process server, and the Alameda
County District Attorney filed a petition to revoke her probation.



1
    All statutory references are to the Penal Code.

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       The trial court heard the petition on September 25, 2013. Lingor testified about
the charge at the hearing. After the close of the evidence, her counsel informed the court
that he was “beginning to entertain doubt as to [his] client’s competency.” Counsel
stated he wished to have a further conversation with Lingor before the court made a
ruling. The trial court explained it was prepared to rule and that “[w]e’ve had the
hearing.”
       Defense counsel then stated, “I do want the Court to know that I believe my client
is incompetent.” He told the court he had not been certain of her incompetence at the
beginning of the hearing but argued her incompetence “was abundantly clear from her
conduct[.]” He did admit, however, that “reasonable minds would differ.” As evidence
of his client’s incompetence, counsel cited Lingor’s “nonresponsiveness, her request
whether we’re in a civil court or criminal court, [and] her repeated questions about the
welfare of her mother.”
       The trial court ruled that to the extent Lingor’s counsel had moved to declare a
doubt under section 1368 concerning her competence to participate in criminal
proceedings, it was “having a real problem at the end of this thinking that I’m supposed
to seriously consider that.” The court explained that Lingor “has a history of mental
health issues, but she understands what’s going on as far as the Court can tell.” Although
she had not been totally cooperative with her counsel, the court found, “She knows
what’s going on.” The court then found Lingor in violation of her probation.
       The trial court revoked Lingor’s probation on December 12, 2013, and sentenced
her to three years’ imprisonment. Lingor later filed a notice of appeal.
                                        DISCUSSION
       Lingor contends the trial court erred by not suspending the probation revocation
hearing when her counsel declared a doubt as to her competency. She argues this
violated her statutory and constitutional rights. Furthermore, she asserts that the court’s
failure to suspend proceedings when presented with what she claims is “substantial
evidence of a doubt as to appellant’s competency ‘divested [the trial court] of jurisdiction



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to proceed pending express determination of the competency issue.’ ” For the reasons
that follow, we conclude the trial court did not err.
I.     Governing Law and Standard of Review
       California law presumes a defendant is competent and places on the defendant the
burden of demonstrating otherwise. (§ 1369, subd. (f).) A defendant is mentally
incompetent if, “as a result of mental disorder or developmental 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.” (§ 1367, subd. (a).) The trial or conviction of
a mentally incompetent defendant violates the due process clause of the Fourteenth
Amendment to the United States Constitution and article I, section 15 of the California
Constitution. (People v. Hayes (1999) 21 Cal.4th 1211, 1281 (Hayes).) In addition,
section 1367, subdivision (a) provides: “A person cannot . . . have his or her probation
. . . revoked while that person is mentally incompetent.” Thus, these statutory and
constitutional provisions apply to probation revocation proceedings such as the one
before us. (People v. Hays (1976) 54 Cal.App.3d 755, 759.)
       “Under both the federal Constitution and state law, the trial court must suspend
criminal proceedings and conduct a competency hearing if presented with substantial
evidence that the defendant is incompetent. [Citations.] Substantial evidence of
incompetence exists when a qualified mental health expert who has examined the
defendant states under oath, and ‘with particularity,’ a professional opinion that because
of mental illness, the defendant is incapable of understanding the purpose or nature of the
criminal proceedings against him, or of cooperating with counsel.” (People v. Mai
(2013) 57 Cal.4th 986, 1032-1033 (Mai).)
       “[D]efense counsel’s expressed belief that defendant might be mentally
incompetent does not automatically trigger a section 1369 competency trial.” (People v.
Sattiewhite (2014) 59 Cal.4th 446, 465 (Sattiewhite).) While counsel’s assertion of a
belief in his client’s incompetence is given “some weight,” it is insufficient on its own to
require the court to hold a competency hearing. (Mai, supra, 57 Cal.4th at p. 1033
[“counsel’s assertion that his or her client is or may be incompetent does not, in the


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absence of substantial evidence to that effect, require the court to hold a competency
hearing”].) To trigger the court’s obligation to hold a competency hearing, “defense
counsel must present expert opinion from a qualified and informed mental health expert,
stating under oath and with particularity that the defendant is incompetent, or counsel
must make some other substantial showing of incompetence that supplements and
supports counsel’s own opinion. Only then does the trial court have a nondiscretionary
obligation to suspend proceedings and hold a competency trial.” (Sattiewhite, supra, at
p. 465, italics added.) Although a defendant’s demeanor and irrational behavior may
constitute substantial evidence of incompetence, “disruptive conduct and courtroom
outbursts by the defendant do not necessarily demonstrate a present inability to
understand the proceedings or assist in the defense.” (Mai, supra, at p. 1033.)
       “[A]bsent a showing of ‘incompetence’ that is ‘substantial’ as a matter of law, the
trial judge’s decision not to order a competency hearing is entitled to great deference,
because the trial court is in the best position to observe the defendant during trial.
[Citation.] ‘ “An appellate court is in no position to appraise a defendant’s conduct in the
trial court as indicating insanity, a calculated attempt to feign insanity and delay the
proceedings, or sheer temper.” [Citations.]’ [Citation.]” (Mai, supra, 57 Cal.4th at
p. 1033.) Consequently, we may not overturn the trial court’s refusal to hold a
competency hearing unless we conclude either that the record raises a reasonable doubt
as to the defendant’s mental competence as a matter of law or that the trial court has
abused its discretion. (People v. Welch (1999) 20 Cal.4th 701, 740 (Welch).)
II.    The Evidence Before the Trial Court Did Not Require it to Hold a Competency
       Hearing.
       Lingor contends there was substantial evidence of her incompetence before the
trial court, and thus its failure to suspend the probation revocation proceedings to
determine her competence was error. She points to a probation report stating she suffered
from schizophrenia and to an assessment by the Office of Collaborative Court Services
opining she was “significantly impacted by her mental health challenges . . . .” In
addition, she refers to her behavior at the September 25, 2013 probation revocation


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hearing. During that hearing, she asked whether her mother had died while she was in
custody, testified despite her counsel’s recommendation that she not do so, and inquired
whether she was in civil court. Lingor also notes she appeared confused, had difficulty
with her recollection, and gave incoherent responses.
       Initially, we note that defense counsel did no more than state his belief that his
client was incompetent. Counsel made no claim he would be able to offer any proof of
Lingor’s incompetence. (See People v. Jones (1991) 53 Cal.3d 1115, 1154 [in absence of
specific offer of proof, court could not assume proffered testimony of psychiatrist would
establish incompetence].) He did not even specifically ask for a hearing on the issue, but
rather said only that he wanted more time to speak to his client about the matter.2 Since
counsel presented no actual evidence of Lingor’s incompetence, the trial court was under
no duty to hold a hearing. (See Sattiewhite, supra, 59 Cal.4th at p. 465 [where counsel
only requested hearing on competency but presented no evidence of incompetence, trial
court did not err in denying motion to suspend proceedings].)
       Since counsel presented no particularized proof on the competency issue, Lingor
must rely on the existing record. After examining that record, we cannot conclude it is
sufficient to show Lingor’s incompetence as a matter of law. (Welch, supra, 20 Cal.4th
at p. 740.) Looking first at the references to her schizophrenia in the probation report, we
find that one of them is a quotation from a letter written by the district attorney. Another
simply reports Lingor’s own statement that she had been diagnosed with schizophrenia.
And the third appears to be the probation officer’s evaluation. Obviously, neither the
district attorney’s hearsay statement nor the defendant’s own statements to the probation
officer are sufficient to establish substantial evidence of incompetence. (See People v.
Marshall (1997) 15 Cal.4th 1, 32-33.) Nothing in the probation report qualifies as the




2
  The trial court alluded to counsel’s failure to make a formal request for a hearing. In
finding Lingor in violation of probation, the court stated, “[I] [h]aven’t heard any other
motions, so I’m not ruling on any other motions.”

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kind of expert opinion that constitutes substantial evidence of incompetence.3 (Mai,
supra, 57 Cal.4th at pp. 1032-1033 [“Substantial evidence of incompetence exists when a
qualified mental health expert who has examined the defendant states under oath, and
‘with particularity,’ a professional opinion that because of mental illness, the defendant is
incapable of understanding the purpose or nature of the criminal proceedings against him,
or of cooperating with counsel.”].) Indeed, the report makes no mention of competency
at all.
          Lingor’s questions about whether the proceeding was civil in nature likewise did
not raise reasonable doubts about her competency. The question did not unequivocally
show she was unable to understand the charges against her. (See People v. Koontz (2002)
27 Cal.4th 1041, 1070 [self-represented defendant’s expression of perplexity at
courtroom procedure reflected lack of legal knowledge, not incompetency].) At the
hearing, Lingor was able to recall earlier proceedings in the case and told the court she
was “still on a court probation.” She testified on her own behalf and denied assaulting
the process server. Nothing in her courtroom behavior suggested she was incompetent.
“ ‘[T]o be entitled to a competency hearing, “a defendant must exhibit more than bizarre
. . . behavior, strange words, or a preexisting psychiatric condition that has little bearing
on the question of whether the defendant can assist [her] defense counsel. [Citations.]”
[Citations.]’ ” (Sattiewhite, supra, 59 Cal.4th at pp. 464-465; see Mai, supra, 57 Cal.4th
at p. 1033 [“disruptive conduct and courtroom outbursts by the defendant do not
necessarily demonstrate a present inability to understand the proceedings or assist in the
defense”].) Nothing of the kind occurred here.
          Nor did Lingor’s questions about her mother’s suggest she was incompetent. Her
mother was quite elderly at the time of the hearing, and appellant might simply have been
concerned about her welfare. If anything, given that Lingor was initially placed on


3
 The fact that Lingor may have been suffering from schizophrenia was not enough, in
and of itself, to establish her incompetence as a matter of law. (See People v. Blacksher
(2011) 52 Cal.4th 769, 798 [psychiatrist’s belief that defendant suffered from paranoid
schizophrenia did not establish incompetence as a matter of law].)

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probation after admitting to committing elder abuse against her mother, her questions
might be read as reflecting her understanding that the elder abuse charge was the genesis
of the criminal proceedings.
       Finally, although Lingor may have had some difficulty answering the questions
put to her, that did not necessarily reflect incompetence. Her own counsel conceded that
reasonable minds might differ about whether her conduct showed she was incompetent.
If reasonable minds could differ about the issue, it is difficult for us to conceive how the
trial court’s decision could be termed an abuse of discretion.
       Since the record does not contain a showing of incompetence that is substantial as
a matter of law, the trial court’s decision is entitled to great deference. (Mai, supra, 57
Cal.4th at p. 1033.) As an appellate court, we are in no position to second guess the trial
court’s evaluation of Lingor’s competence, and the evidence of incompetence to which
Lingor directs us falls far short of that which the California Supreme Court has held
sufficient to qualify as substantial. (Cf. People v. Lewis (2008) 43 Cal.4th 415, 525 [no
substantial evidence of incompetence even though defense counsel declared doubt about
defendant’s competence, psychologist submitted letter stating defendant’s brain
functioning was abnormal, and defendant exhibited irrational and counterproductive
behavior at trial].) Because we cannot conclude either that the record raises a reasonable
doubt as to the defendant’s mental competence as a matter of law or that the trial court
has abused its discretion, we must affirm. (Welch, supra, 20 Cal.4th at p. 740.)
                                        DISPOSITION
       The judgment is affirmed.




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                                _________________________
                                Jones, P.J.




We concur:


_________________________
Needham, J.


_________________________
Bruiniers, J.




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