Filed 11/4/13 P. v. Price CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H038436
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1111184)

             v.

LEO DALTON PRICE et al.,

         Defendant and Appellant.



         Defendants Leo Dalton Price and Kristina Pelache appeal a judgment entered
following a jury trial. On appeal, Price asserts the trial court erred by not declaring a
doubt during his trial and sentencing as to his competence pursuant to Penal Code section
1385.1 Pelache asserts the trial court erred by imposing probation conditions that were
unconstitutionally overbroad.
                                  STATEMENT OF THE FACTS AND CASE
         The instant case arises out of an attack perpetrated by Price, Pelache, and Price’s
brother, Alex, on Price’s second cousin, Greg. In 2011, Greg was homeless, and was
sleeping in a shed on his 92-year-old aunt Carmen’s property. Carmen is Price’s
grandmother. After the death of Price’s father in 2011, Carmen told Price to not to come
around her property anymore.


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             All further unspecified statutory references are to the Penal Code.
       Price resented the fact that Carmen permitted Greg to stay on her property, but
would not allow Price to come around. On May 20, 2011, around 4:00 a.m. while Greg
was sleeping in the storage shed on Carmen’s property, Price yanked the door open.
Price told Greg he should leave because he was not supposed to be there. Price told Greg
to shut up, then called someone on his cell phone and said, “He’s in here, get in here.”
       After the cell phone call, Price’s brother, Alex entered the shed and began
punching Greg. Price also began punching Greg and kicking him in the face. At some
point during the attack, Pelache entered the shed and said, “Grandma turned the light on.”
Alex and Price covered Greg’s mouth so he could not make any noise. Price told Pelache
to go wait in the car. Before she left the shed, she told Greg he was “getting what you
deserve.” Alex and Price hit Greg a few more times, then left. When Greg was alone, he
discovered that his wallet, car keys, phone, flashlight, and a buck knife were missing
from the shed.
       As a result of the attack, Greg had cuts to his nose, lip and chest. The left side of
his face was swollen, and the vision in his left eye was affected for weeks. Greg also lost
several teeth, and had continuing headaches.
       After the attack, Price sent letters to Greg and Carmen apologizing for his actions,
and asking for forgiveness. At trial, Price and Pelache denied they went to Carmen’s
house, and denied they attacked Greg.
       After a jury trial, defendants were found guilty of assault with force likely to cause
great bodily injury (§ 245, subd. (a)(1)); battery with serious bodily injury (§§ 242, 243,
subd. (d)); first degree burglary (§§ 459, 460, subd. (a)); and false imprisonment (§§ 236,
237). In addition, the jury found that Price had personally inflicted great bodily injury
within the meaning of sections 12022.7, subdivision (a), 1203, subdivision (e)(3), 667,
and 1192.7. The jury also found that Price had suffered a prior conviction within the
meaning of sections 667, subdivisions (b) through (i), and 1170.12.

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       Price was sentenced to serve 12 years in state prison. The court sentenced Pelache
to four years in state prison, suspended execution of sentence, and placed her on three
years of formal probation. As a condition of probation, the court ordered that Pelache not
“knowingly possess or consume alcohol or illegal drugs or go to places where alcohol is
the known primary item for sale.” Both Price and Pelache filed notices of appeal.
                                        DISCUSSION
       Defendant Price asserts on appeal that the judgment must be reversed, because the
trial court did not declare a doubt as to his competency pursuant to section 1368. Pelache
asserts the trial court erred in imposing probation conditions that were unconstitutionally
overbroad.
       Price’s Competency
       During the trial in this case, after the prosecution’s case in chief and during the
middle of the cross-examination of Price, Price’s counsel declared a doubt as to Price’s
competency and asked the court to suspend proceedings pursuant to section 1368.
Counsel argued that she thought Price was incompetent because he believed Greg had
killed his father, made paranoid comments about the court system, commented in front of
the jury that his counsel was not helping him, and commented about trying to save his
brother, Alex from two life sentences. Counsel believed that defendant had
“decompensated during the course of the trial probably due to the stress of the trial
itself.” Counsel also noted that defendant could not stop fidgeting at counsel table, and
said “hello” to his grandmother, Carmen, when she was a witness at the trial.
       The court disagreed with Price’s counsel’s assessment, stating that in its view,
Price was recalcitrant and uncooperative, but was not incompetent to stand trial.
Moreover, the court noted that Price’s disagreement with his counsel’s “very good
advice” did not make him incompetent. The court stated that based on its own
observation of Price’s behavior, it had no doubt about Price’s competency.

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       At sentencing, Price had a different defense counsel, who also declared a doubt as
to Price’s competency, and requested that the court appoint doctors to evaluate Price
under section 1368. The court denied Price’s counsel’s request noting that Price had
been interviewed for the probation report and placed in the general jail population
without any question being raised by either probation or jail personnel about Price’s
competency. The court concluded that Price was competent.
       Consistent with the due process clause of the Fourteenth Amendment and state
law, the state may not try or convict a mentally incompetent defendant. (Drope v.
Missouri (1975) 420 U.S. 162, 171-172; § 1367 et seq.) Under the state standard for
competency, which is essentially the same as the federal standard, a defendant who is
“unable to understand the nature of the criminal proceedings or to assist counsel in the
conduct of a defense in a rational manner” is incompetent to stand trial. (§ 1367; see
Dusky v. United States (1960) 362 U.S. 402 [“ ‘sufficient present ability to consult with
his lawyer with a reasonable degree of rational understanding’ ” and a “ ‘rational as well
as factual understanding of the proceedings against him’ ”].)
       If “a doubt arises in the mind of the judge as to the mental competence of the
defendant” at any time prior to judgment, the court is required to conduct a hearing
pursuant to section 1368 to determine the defendant’s competence. (§ 1368; People v.
Rodrigues (1994) 8 Cal.4th 1060, 1111.) In particular, the trial court is required to
conduct a section 1368 hearing to determine a defendant’s competency “whenever
substantial evidence of incompetence has been introduced. [Citations.] Substantial
evidence is evidence that raises a reasonable doubt about the defendant’s competence to
stand trial. [Citations.]” (People v. Frye (1998) 18 Cal.4th 894, 951-952.) By contrast,
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

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competence hearing.” (People v. Deere (1985) 41 Cal.3d 353, 358, disapproved on other
grounds in People v. Bloom (1989) 48 Cal.3d 1194, 1228, fn. 9.)
       In determining whether there is substantial evidence of incompetence, the court
must consider all of the relevant circumstances, including defendant’s behavior and
demeanor, prior medical opinion, defense counsel’s experience, and the court’s own
observations. (Drope v. Missouri, supra, 420 U.S. at p. 180; People v. Howard (1992) 1
Cal.4th 1132, 1164.) “There are, of course, no fixed or immutable signs which invariably
indicate the need for further inquiry to determine fitness to proceed; the question is often
a difficult one in which a wide range of manifestations and subtle nuances are
implicated.” (Drope v. Missouri, supra, 420 U.S. 162, 180.) However, “more 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 [or her]
defense [citation] or psychiatric testimony that defendant is immature, dangerous,
psychopathic, or homicidal or such diagnosis with little reference to defendant’s ability to
assist in his own defense [citation].” (People v. Laudermilk (1967) 67 Cal.2d 272, 285.)
And, the burden is on the defendant to establish that he or she is not competent to stand
trial. (§ 1369, subd. (f); People v. Marshall (1997) 15 Cal.4th 1, 31.) On appeal, we give
the trial judge’s determination great deference. “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.” (People v.
Merkouris (1959) 52 Cal.2d 672, 679.)
       “ ‘A trial court’s decision whether or not to hold a competence hearing is entitled
to deference, because the court has the opportunity to observe the defendant during trial.
[Citations.] The failure to declare a doubt and conduct a hearing when there is substantial
evidence of incompetence, however, requires reversal of the judgment of conviction.
[Citations.]’ [Citation.]” (People v. Lewis (2008) 43 Cal.4th 415, 525.)

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       The trial court in this case did not declare a doubt as to Price’s competency, thus
the question is whether there was substantial evidence of his incompetence demonstrated.
Price contends his incompetence was evidenced by his own behavior. For example, he
points to the fact that he had difficulty following his counsel’s questions on direct
examination, and responded with inappropriate answers. Price’s answers on direct
included testimony that the judicial system was working against him, he was convicted of
a prior felony because the county turned his family against him, that he was forced to
defend himself because defense counsel would not, and that Greg falsely accused him of
the attack because Greg killed Price’s father and did not want him to know about it. Price
also testified that he wrote the apology letters to Carmen and Greg to appeal to the
“Christian[s]” on the jury. Price asserts his testimony and behavior at trial was “bazaar,
paranoid, and nonsensical,” and necessitated a hearing to determine his competency.
       Price asserts that in addition to his behavior at trial, the circumstances surrounding
his sentencing also constitute substantial evidence of Price’s incompetence. At the time
of sentencing, Price’s counsel informed the court that Price was unable to understand the
proceedings against him and meaningfully assist counsel with preparation of a motion for
a new trial and sentencing. Counsel also stated that Price was under mental health care
and was receiving medication while in custody. Price asserts that this information,
coupled with the prior declaration of doubt by counsel during trial, was sufficient to
establish substantial evidence of Price’s incompetence.
       Based on a review of the record of Price’s demeanor and behavior, we do not find
substantial evidence of his incompetence. Although Price did make strange comments
during his testimony, something more than bizarre statements and behavior is needed to
raise a doubt concerning a defendant’s competence. (People v. Laudermilk, supra, 67
Cal.2d at p. 285.) There is not substantial evidence demonstrating Price did not
understand the nature of the proceedings against him or that he could not assist counsel in

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his own defense. (§ 1367; see Dusky v. United States, supra, 362 U.S. 402.) In sum,
Price has failed to demonstrate that the court abused its discretion in declining to hold a
competency hearing pursuant to section 1368.
         Pelache’s Probation Condition
         As a condition of probation, the court ordered that Pelache not “knowingly possess
or consume alcohol or illegal drugs or go to places where alcohol is the known primary
item for sale.” Pelache asserts this condition is unconstitutionally overbroad on its face
and as applied to Pelache.
         The basis of Pelache’s argument is that the portion of the condition that prohibits
her ability to go to places where alcohol is the primary item of sale restricts her right to
interstate travel, and restricts her ability to work in her chosen profession as a bartender.
In addition, Pelache asserts it is the consumption of alcohol that is related to future
criminality, not being in a place where alcohol is sold.
         By failing to object in the trial court, Pelache has forfeited her challenge to the
reasonableness of the conditions. (In re Sheena K. (2207) 40 Cal.4th 875, 881-882, 885;
People v. Welch (1993) Cal.4th 228, 232-235.) Pelache’s claim that the probation
condition is unconstitutional as applied, because it restricts her right to work as a
bartender cannot be considered on appeal, because she did not raise the issue in the trial
court.
         Ineffective Assistance of Counsel for Failure to Object
         Pelache asserts that she was denied effective assistance of counsel because her
attorney did not object that the portion of the probation condition prohibiting her from
going to a business where alcohol is the primary item for sale is unconstitutional as
applied to her.
         A defendant claiming ineffective assistance of counsel has the burden of showing
(1) deficient performance under an objective standard of professional reasonableness, and

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(2) prejudice. (People v. Ledesma (1987) 43 Cal.3d 171, 215-218.) Prejudice must be
affirmatively proved. “ ‘It is not enough for the defendant to show that [counsel’s] errors
had some conceivable effect on the outcome of the proceeding. . . . The defendant must
show that there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’ [Citations.]” (Id. at
pp. 217-218.)
       Here, Pelache cannot establish she was prejudiced by her counsel’s failure to
object to the portion of the probation condition that restricts her from going to businesses
where alcohol is the primary item for sale. “Probation conditions have been upheld even
though they restrict a probationer’s exercise of constitutional rights if they are narrowly
drawn to serve the important interests of public safety and rehabilitation [citation] and if
they are specifically tailored to the individual probationer.” (In re Babak S. (1993) 18
Cal.App.4th 1077, 1084 [probation conditions affecting the freedom of travel,
association, and assembly].) Although the condition impacts Pelache’s ability to work as
a bartender, it is narrowly drawn to prevent Pelache from consuming alcohol, and
promotes both public safety and Pelache’s rehabilitation. Pelache is an admitted
alcoholic, with a criminal record that includes a conviction for driving under the
influence of alcohol. The condition withstands constitutional scrutiny, because it is
reasonably related to Pelache’s future criminality. As such, there is no evidence that had
defense counsel objected to the condition, the court would not have imposed it.
       Because Pelache cannot demonstrate prejudice from her counsel’s failure to
object, she cannot demonstrate that she was denied effective assistance of counsel.
       Facial Constitutional Challenge
       To the extent that her constitutional claims present pure questions of law that can
be resolved without reference to the record developed in the trial court, they are not

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forfeited. (Sheena K., supra, 40 Cal.4th at p. 889.) We review facial constitutional
challenges to a probation condition de novo. (In re J.H. (2007) 158 Cal.App.4th 174,
183.)
        Pelache argues that the alcohol condition at issue here affects her basic
constitutional right of freedom of travel. “Thus, in order to survive constitutional
scrutiny, such condition[s] not only must be reasonably related to present or future
criminality, but also must be narrowly drawn and specifically tailored to the individual
probationer.” (Ibid.) A “probation condition that imposes limitations on a person’s
constitutional rights must closely tailor those limitations to the purpose of the condition
to avoid being invalidated as constitutionally overbroad.” (Sheena K., supra, 40 Cal.4th
at p. 890.)
        In this case, Pelache challenges a condition that contains language that restricts her
right to go to places where alcohol is the primary item of sale on the ground that it
infringes her constitutional right to travel. The right to travel (which includes interstate,
intrastate, and “intramunicipal” travel) is “elementary in a free society” and protected by
the United States and California Constitutions. (In re White (1979) 97 Cal.App.3d 141,
148-149.)
        The aspect of the condition that restricts Pelache from going to places where
alcohol is the primary item of sale is not unconstitutionally overbroad. The purpose of
the condition is to prevent the consumption of alcohol. It is specifically tailored and
narrowly drawn, because it only restricts Pelache from businesses where alcohol is the
primary item for sale, not from every establishment where alcohol is sold. Because of its
specificity, the condition has very little impact on Pelache’s constitutional right to travel.
Therefore, the condition is valid and not unconstitutional.
                                        DISPOSITION
        The judgment is affirmed.

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                                 ______________________________________
                                            RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           ELIA, J.




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