Filed 5/6/16 P. v. Piggee CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B260410

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. YA089772)
         v.

KALAMICE K. PIGGEE,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Eric C. Taylor, Judge. Affirmed.


         Gloria C. Cohen, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Eric J.
Kohm, Deputy Attorneys General, for Plaintiff and Respondent.


                  ___________________________________________________
        Defendant Kalamice K. Piggee appeals from the judgment entered following a
jury trial that resulted in his conviction of robbery (Pen. Code, § 211; count 1),1 during
which he used a deadly weapon (screwdriver) (§ 12022, subd. (b)(1)), and assault with a
deadly weapon (§ 245, subd. (a)(1); count 2) and findings he had suffered two prior
convictions for a serious felony (§ 667, subd. (a)), which qualified as strikes under the
Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and he had served a
prior prison term (§ 667.5, subd. (b)). He was sentenced to prison on count 1 for 25 years
to life, plus seven years for enhancements, consisting of five years for a prior serious
felony conviction, one year for use of a deadly weapon, and one year for the prior prison
term.
        Defendant contends the judgment must be reversed, because “the conviction of an
accused person while he is legally incompetent violates due process” (Pate v. Robinson
(1966) 383 U.S. 375, 378) and the trial court improperly relied on People v. Jones (1991)
53 Cal.3d 1115 in denying his multiple requests for a hearing on his mental competency
(§ 1368), despite substantial evidence of his incompetence, which necessitates a hearing
“as a matter of right” (People v. Pennington (1967) 66 Cal.2d 508, 518-519).
        We affirm the judgment. In the original case, Los Angeles County Superior Court
case No. (LASC No.) YA083790, the trial court found defendant incompetent to stand
trial and ordered him committed to Patton State Hospital. The court subsequently
received notice that defendant’s competency had been restored, and defendant was held
to answer. When the prosecution advised that it was unable to proceed because of lost
contact with the victim, the court ordered the case dismissed for lack of prosecution.
Subsequently, the case was refiled under LASC No. YA089772, the present case. During
jury deliberations, defense counsel presented the report of Dr. Sara Hough, who
concluded defendant was incompetent to stand trial, and requested the trial court declare
a doubt as to defendant’s competency and suspend the trial proceedings. Although



1       All further section references are to the Penal Code.


                                              2
declining to suspend proceedings, the court allowed the parties an opportunity to obtain
additional medical evaluation of defendant’s competency. In his report, Dr. Phani Tumu,
an appointed prosecution expert, opined defendant was competent. The trial court
declined to declare a doubt as to defendant’s mental competency and suspend
proceedings for a second competency hearing. Substantial evidence supports the trial
court’s rulings in view of the court’s personal observations of and interactions with
defendant and Dr. Tumu’s report and opinion.
                                     BACKGROUND
       On March 13, 2012, about 7:00 a.m., Gregorio Machuca Navarro (Machuca), a
maintenance person at the Normandie Casino in Gardena, was fixing the door to a small
storage room in the bathroom with a screwdriver when defendant entered the bathroom
and pushed Machuca in the back. As Machuca turned towards defendant, defendant
grabbed his screwdriver, threatened him with it, and lunged at him. Machuca dodged
away and tried to leave but defendant blocked the only exit. Retreating into a stall,
Machuca closed and locked the door. After breaking through the door, defendant entered
and struck Machuca, who fell to the ground. Climbing on top of him, defendant grabbed
Machuca by the hair and bashed his head against the wall and toilet. When defendant
demanded his wallet, Machuca gave up his wallet, which contained over $1,000, a cell
phone, an employee identification badge, and his truck keys. After defendant left,
Machuca followed and called for help.
       As John Temple, a Normandie Casino security officer, went to investigate a
reported altercation, he observed defendant and Machuca swinging fists at each other.
After detaining defendant, Temple found two plastic bags.
       At the casino, defendant acknowledged to Gardena Police Officer Ryan Nigg that
the bags were his. Machuca’s wallet containing about $1,000, a cell phone, an employee
identification badge, truck keys, and a screwdriver were recovered from one bag. Asked
if he took Machuca’s money, defendant responded, “everything is in the bag.”
       At trial, defendant did not present any affirmative evidence.



                                             3
                                        DISCUSSION
         Defendant contends the trial court committed prejudicial error in refusing to
suspend trial proceedings and conduct a competency hearing (§ 1368), because
substantial evidence established a doubt as to his mental competency to stand trial. No
error occurred. Substantial evidence supports the trial court’s findings that there was no
substantial change of circumstances or new evidence casting a serious doubt on the
finding of competency that would warrant a second competency hearing.
            Relevant Trial Proceedings in LASC Nos. YA083790 and YA089772
         1. LASC No. YA083790
         In LASC No. YA083790, defendant was charged with a single count of robbery
(§ 211). Defendant entered a plea of not guilty.
         On April 12, 2012, Dr. Jack Rothberg, a defense expert, evaluated defendant and
diagnosed him with bipolar disorder. He opined defendant was incompetent to stand
trial.
         On April 23, 2012, after defense counsel declared a doubt as to defendant‘s
competency, the trial court suspended the proceedings for evaluation of his mental
competency in Department 95.
         On May 21, 2012, the court found defendant incompetent to stand trial and
committed him to Patton State Hospital until May 10, 2015, the maximum confinement
period.
         On August 2, 2012, a certification of defendant’s mental competency from Patton
State Hospital was filed with the court.
         On September 12, 2012, defendant entered a plea of not guilty.
         On October 29, 2012, defendant spoke to the trial court (Judge Eric C. Taylor)
about his commitment at Patton State Hospital, where he broke his leg. He asserted he
suffered from bipolar disorder for which he required medication and he had not been
taking the medication at the time of the Machuca altercation. He then waived time to
allow defense counsel time to prepare for trial. Defense counsel advised that defendant’s
competency had been restored and there was no declaration of doubt pending.

                                              4
        On November 26, 2012, defendant appeared in court. The court acknowledged it
received his request for placement in a mental health or drug treatment program. The
court also heard and denied his motion to discharge his counsel (People v. Marsden
(1970) 2 Cal.3d 118 (Marsden)). Defendant then asserted he was being denied his rights
to due process and under the Sixth Amendment. When the court discussed with
defendant whether he would waive time again, he refused.
        On January 2, 2013, defendant made another Marsden motion, which the court
denied. Afterward, he requested an opportunity to communicate ex parte with the court
and stated he had not been granted a Romero hearing (People v. Superior Court (Romero)
(1996) 13 Cal.4th 497).2 Defendant again asserted he was innocent because of his mental
illness. On this occasion, he agreed to waive time.
        On February 27, 2013, defendant withdrew his plea of not guilty and entered a
plea of not guilty by reason of insanity. Defense counsel submitted psychiatric
evaluations regarding defendant’s sanity. The trial court granted the prosecution an
opportunity to retain its own expert to evaluate defendant.
        On March 27, 2013, following a pretrial hearing, the trial court denied defendant’s
Romero motion. Defendant claimed the court did so because the court did not like him.
        On December 3, 2013, and on February 28, 2014, defendant made additional
Marsden motions, which the court denied.
        On March 6, 2014, the prosecutor advised the trial court that he was unable to
proceed, because he had lost contact with the victim. The court ordered the case
dismissed for lack of prosecution.
        2. LASC No. YA089772
        On May 1, 2014, the prosecution refiled the case. The two-count information
charged defendant with, respectively, robbery (§ 211), during which he used a deadly
weapon (screwdriver) (§ 12022, subd. (b)(1)) and assault with a deadly weapon (§ 245,


2       His Romero motion to dismiss the two alleged strikes was made on February 13,
2013.


                                             5
subd. (a)(1)). As to both counts, defendant allegedly suffered two prior serious felony
convictions (§ 667, subd. (a)), which qualified as strikes under the Three Strikes law
(§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and he had served two prior prison terms
(§ 667.5, subd. (b)). Defendant entered a not guilty plea.
       On June 23, 2014, defendant appeared in court with counsel, who advised that
defendant’s wheelchair had been taken. After noting defendant had been medically
cleared from requiring a wheelchair, the court further noted that defendant repeatedly had
refused to appear in court and if he continued to do so, the court would proceed without
him. Defendant requested a Marsden hearing. Following the hearing, the court denied
his motion. When the court discussed a possible plea, defendant stated he would plead in
exchange for hospitalization or time served.
       On June 27, 2014, when defendant refused to appear in court, the court ordered
him extracted from his jail cell. Defendant appeared wearing a cast for his broken leg
and requested additional time to consider how he would plead.
       On September 3, 2014, defense counsel declared a doubt as to defendant’s
competency. He asserted defendant could not communicate effectively with him and
pointed out that when defendant was in court previously, he yelled about being “Jesus”
and the “sheriff.” The court inquired how defendant’s behavior had changed since his
competency was restored and stated that in its opinion, defendant always “act[ed] out
more in that way” whenever the court did not give him what he wanted. Counsel
admitted defendant always had been “difficult” in court, but asserted defendant was
“clearly delusional” and his behavior had worsened.
       The prosecutor pointed out after defense counsel had declared his belief in
defendant’s competency at the preliminary hearing, defendant was “ranting and raving.”
He noted at that time, the court placed on the record the fact defendant usually had to be
extracted from his cell to appear in court, and once he arrived, he would claim a medical
injury and that defendant was engaging in behavior for the purpose of obstructing and
delaying the proceedings. In view of such matters, the prosecutor stated his belief
defendant was engaging in “forum shopping” by claiming that, although he was

                                               6
medically cleared as to his broken leg, he still needed a wheelchair, compelling the case
be tried in the downtown Los Angeles courthouse, which could accommodate a
wheelchair case. He added that when the case was not transferred because the court
found defendant did not need a wheelchair, defendant acted out and disrupted the
proceedings by manipulating the system.
       After noting it had spent “a lot of time to evaluate and observe” defendant, the
court agreed defendant’s goal was to be tried in downtown Los Angeles, adding that
defendant always calmed down if such possibility was discussed. The court found
whenever defendant got what he wanted, his behavior was fine. The court pointed out
whenever the court and staff had to go to lockup because defendant refused to come out,
the court observed defendant was calm until they arrived, at which point, “the show
starts.” After concluding defendant’s behavior had not changed since his competency
was restored, the court declined to declare a doubt.
       On September 8, 2014, defendant refused to appear in court despite being
“medically and psychologically cleared” to do so. After noting it had to order him
extracted a number of times already, which was expensive and placed people at risk, the
court announced it would not order his extraction.
       The next day, defendant refused to appear in court unless a “wheelchair bus” was
sent for him. The bus was sent. Defense counsel advised the court that after he
explained to defendant the court would no longer order his extraction, defendant agreed
to go to court. The court responded that defendant was engaging in ploys, including not
allowing his cast to be removed. After arriving at the courthouse in a wheelchair bus,
defendant refused to enter the courtroom, because he wanted to speak with defense
counsel or a sheriff’s department supervisor. The court allowed defense counsel to speak
with him. Afterward, counsel advised the court that defendant would not enter the
courtroom unless he could speak with his mother. The bailiff advised that defendant had
responded to his request to enter by rambling about motions and walking away.




                                             7
       On September 10, 2014, defendant again claimed he required a wheelchair to
attend court. When asked if he would attend if provided a wheelchair, defendant rambled
incoherently and returned to his jail cell.
       On September 13, 2014, Dr. Hough submitted her report regarding defendant’s
competency to defense counsel. She concluded defendant was “incompetent to proceed
with trial.”
       On September 15, 2014, in light of Dr. Hough’s report, defense counsel requested
the court declare a doubt as to defendant’s competency and suspend the proceedings.
The prosecutor pointed out the court already had found defendant was not incompetent
because circumstances had not changed since his competency was restored. He noted
deliberations already had commenced and argued the jury should be allowed to finish
because defendant’s competency no longer had any bearing on the trial on the charged
offenses. Defense counsel responded defendant’s competency may have kept him from
entering a plea of not guilty by reason of insanity.
       The court placed on the record the fact defense counsel never requested the court
appoint Dr. Hough to evaluate defendant; rather, while the court was dark, defense
counsel made the request to another judge, who knew nothing about defendant’s case.
Counsel explained he contacted the other judge because defendant called his supervisor
and was babbling. He acknowledged, however, defendant had been calling his supervisor
on an ongoing basis.
       The court declined to suspend jury deliberations while the court considered the
competency issue. After noting that following restoration of his competency defendant
had been engaging in the same type of behavior throughout the proceedings, the court
found defendant was simply being manipulative.
       Defense counsel requested a mistrial, because defendant was incompetent earlier
in the proceedings, which affected his entry of a plea. The prosecutor argued such
retroactive assertion of incompetence was not appropriate. He noted although the case
had been around for nearly two and a half years, no issue of defendant’s competency had



                                              8
been raised until three days before trial and further argued defendant was being
manipulative rather than incompetent.
       The court readopted its earlier findings that defendant had been acting the same
way throughout the proceedings after his competency was restored and he cooperated if
he got his way but became disruptive and acted out when he did not. The court further
found that nothing in Dr. Hough’s report shed light on any new behavior or
circumstances. The court declined to declare a doubt as to defendant’s competency at
that point, denied the mistrial motion, and ruled the trial would proceed.
       On September 16, 2014, a day after the jury’s verdicts and findings, defendant
refused to enter the courtroom. Defense counsel reported defendant had asked him if
counsel had killed the psychologist, i.e., Dr. Hough, and expressed concern about
defendant’s competency. The court declined to declare a doubt but continued sentencing
to afford the parties an opportunity to obtain further medical evaluation regarding
defendant’s competency.
       On October 26, 2014, Dr. Tumu, the prosecution’s appointed expert, submitted to
the court his report in which he opined defendant was competent.
       On October 30, 2014, defendant appeared in court with his counsel, who again
moved to have him declared incompetent. In opposition, the prosecutor pointed out Dr.
Tumu had found defendant exaggerated the symptoms of his mental illness for secondary
gain and he was competent. The court found defendant was competent and denied the
defense motion to declare a doubt as to his competency.
       On November 6, 2014, although cleared medically and psychologically, defendant
did not appear, and the court proceeded with sentencing.
       3. Applicable Legal Principles
       An accused is incompetent to stand trial if, due to “mental disorder or
developmental disability,” he 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 due process standard is “‘whether [the accused] has sufficient
present ability to consult with his lawyer with a reasonable degree of rational

                                             9
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.)
       Section 1368 sets forth the criteria for a competency hearing. “When the accused
presents substantial evidence of incompetence, due process requires that the trial court
conduct a full competency hearing.” (People v. Jones, supra, 53 Cal.3d 1115, 1152.)
“Evidence is ‘substantial’ if it raises a reasonable doubt about the defendant’s
competence to stand trial.” (Ibid.) “When a competency hearing has already been held
and the defendant has been found competent to stand trial, however, a trial court need not
suspend proceedings to conduct a second competency hearing unless it ‘is presented with
a substantial change of circumstances or with new evidence’ casting a serious doubt on
the validity of that finding. [Citations.]” (Id. at p. 1153.) “Evidence that merely raises a
suspicion that the defendant lacks present sanity or competence but does not disclose a
present inability because of mental illness to participate rationally in the trial is not
deemed ‘substantial’ evidence requiring a competence hearing.” (People v. Deere (1985)
41 Cal.3d 353, 358, disapproved on a different point in People v. Bloom (1989) 48 Cal.3d
1194, 1228, fn. 9.) Further, “‘more is required to raise a doubt [of competence] than . . .
psychiatric testimony that defendant is immature, dangerous, psychopathic, or homicidal
or such diagnosis with little reference to the defendant’s ability to assist in his own
defense [citation].’” (Deere, at p. 35.) “‘[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 his defense counsel. [Citations.]” [Citations.]’” (People v. Sattiewhite (2014) 59
Cal.4th 446, 464-465 (Sattiewhite).)
       In short, the litmus test is whether the defendant has the capacity to understand the
nature of the proceedings and to assist his counsel in his defense in a rational manner. A
trial court’s ruling regarding a competency hearing is entitled to great deference because
“‘[a]n appellate court is in no position to appraise a defendant’s conduct in the trial court
as indicating insanity, a calculated attempt to feign [mental incompetence] and delay the
proceedings, or sheer temper.’” (People v. Danielson (1992) 3 Cal.4th 691, 727,

                                               10
overruled on a different point in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069,
fn. 13.)
       4. Prerequisites to Second Competency Hearing Not Established
       Defendant fails to establish the prerequisites for a second competency hearing. A
trial court’s decision not to order a competency hearing is entitled to “great deference,”
unless the defendant demonstrates “‘incompetence’ that is ‘substantial’ as a matter of
law.” (People v. Mai (2013) 57 Cal.4th 986, 1033 (Mai); see also § 1369, subd. (f)
[defendant’s burden to demonstrate incompetence].) “[D]efense 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, 59 Cal.4th at p. 465.)
       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, 57 Cal.4th at p. 1033.) “[T]he trial
court is in the best position to observe the defendant during trial. [Citation.]” (Ibid.)3
       In this instance, defendant has not met his burden to show his mental
“‘incompetence’ . . . is ‘substantial’ as a matter of law.” (Mai, 57 Cal.App.4th at p.
1033.) Substantial evidence in fact supports the trial court’s findings that no substantial
change of circumstances or new evidence was presented, which are the prerequisites for a
second competency hearing.
       When viewed in context, the issue of a second competency hearing was not
properly before the court until September 3, 2014, when defense counsel expressed his


3      The trial judge in this case also presided over most of the trial proceedings in the
original case after defendant’s competency was restored and until that case was
dismissed.


                                             11
concern about defendant’s mental competency in light of Dr. Hough’s report.
(Sattiewhite, supra, 59 Cal.4th at p. 465 [denial of motion to suspend proceedings not
error where counsel requested hearing without offering substantial evidence of
incompetence].)
       Dr. Hough’s report and her opinion that defendant was mentally incompetent were
not conclusively binding on the trial court. They were based solely on her one-time
encounter with defendant, and her report does not address the pivotal issues of changed
circumstances and new evidence. The trial court therefore was entitled to give, and gave,
no credence to Dr. Hough’s report and opinion. (People v. Lewis and Oliver (2006) 39
Cal.4th 970, 1047-1049 & fn. 25 [opinion defendant incompetent not substantial evidence
when not credible]; People v. Weaver (2001) 26 Cal.4th 876, 953-954 [not substantial
evidence where psychiatrist did not examine defendant and incompetency opinion based
on observing defendant’s in-court demeanor].)
       Additionally, the trial court expressly found that, rather than a product of mental
incompetency, defendant’s bizarre behavior constituted a ploy and an attempt on
defendant’s part to manipulate the trial proceedings. These findings are amply supported
by the court’s personal observations of and interactions with defendant. The trial court
also observed defendant had been consistently “ranting and raving” after his competency
was restored. Defendant’s participation during the trial reflected his understanding and
use of legal concepts and procedures. He made multiple Marsden motions, a legal
procedure through which a criminal defendant seeks to discharge his appointed counsel.
He reminded the court no hearing had been held under Romero, a legal procedure to
dismiss one or more alleged strikes under the Three Strikes law. He attempted to
negotiate a favorable plea bargain by advising the court he would plead if he were
hospitalized or received credit for time served.
       Moreover, substantial evidence supports the trial court’s findings that defendant
was putting on “a show” when he refused to attend court, which refusal served to disrupt
and delay the trial. His refusal to go to court ceased once the trial court announced it
would no longer order him extracted from jail, which was costly and perilous, and he

                                             12
could no longer put on “a show.” Although no longer requiring a wheelchair, defendant
also refused to attend court unless he had wheelchair accommodations. (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”].)
       The trial court’s findings are further bolstered by Dr. Tumu’s report and his
opinion that defendant was competent. In contrast to Dr. Hough’s report, Dr. Tumu’s
report reflected he took into account the history of defendant’s behavior and the prior
evaluations of his sanity and competency and provided a detailed analysis for his opinion.
Dr. Tumu also noted Dr. Hough evaluated defendant in a setting where he could not be
forcibly medicated, which could have led to the presentation of exacerbated symptoms.
       Dr. Tumu pointed out that upon their meeting, defendant asked, “Are you from
Department 95? Is this a competency evaluation?” “95” was “the San Fernando Mental
Health Court.” Defendant understood the concept of not guilty by reason of insanity,
which he referred to by the acronym of “NGI.” Further, defendant understood other legal
concepts. He indicated that he was communicating with two attorneys whose practice
concerned disability or patient law rights regarding his fractured ankle. He knew the
names of the attorneys in this case and understood which one was prosecuting him and
which was defending him. Further, he knew section 211 of the Penal Code as charging
“robbery without a weapon” and that this was his original charge. He was able to express
a rational reason for rejecting a plea deal, i.e., he would not receive credit for time served,
and stated his understanding as to how such credit was calculated. Also, he recalled his
prior criminal history and “all his previous forensic doctors and their conclusions.”
       Regarding defendant’s bizarre behavior, Dr. Tumu explained that although he
diagnosed defendant as mentally ill, he believed defendant was “embellishing his
symptoms for secondary gain” and was “embellishing paranoia.” Dr. Tumu concluded
that defendant “was angling for mental health treatment,” which was uncommon for
those mentally ill. Further, he had “a rational understanding of the charges against him”;
he “is able to rationally cooperate with his attorney”; and he “clearly understood the

                                              13
purpose of [his] evaluation and how that can possibly impact his case.” (People v. Ramos
(2004) 34 Cal.4th 494, 508 [no competency hearing where mere preexisting psychiatric
condition not bearing on defendant’s ability to assist defense counsel].)
                                      DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                          BOREN, P.J.
We concur:


       CHAVEZ, J.


       HOFFSTADT, J.




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