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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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)
                                                            ----




THE PEOPLE,                                                                                  C072568

                   Plaintiff and Respondent,                                    (Super. Ct. No. CR02937X)

         v.

STEVEN ANTHONY DENTON,

                   Defendant and Appellant.




         Defendant Steven Anthony Denton pled no contest to arson in exchange for
dismissal of an on-bail/own recognizance allegation as well as dismissal of case No.
CR02911X (felony vandalism). The court granted probation for a term of five years and
ordered defendant to register as an arson offender.
         Defendant appeals. A certificate of probable cause was obtained. Defendant
contends the trial court lacked jurisdiction to accept his plea and enter judgment because
there was a doubt as to his competence. We disagree and affirm.



                                                             1
                                             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 witnesses, defendant had been seen in the area
before the fire started. Based on prior contacts, deputy sheriffs knew that defendant
suffered from mental illness and had exhibited violent behavior. Later that evening,
deputy sheriffs located defendant, 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 admitted 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 times that he tried to
extinguish the fire and that he had lit a small twig and the fire just grew. When he was
told he was being arrested for arson, defendant initially resisted being handcuffed but
once secured, he cooperated.
                                         DISCUSSION
       Defendant contends the trial court lacked jurisdiction to accept his plea and enter
judgment. He argues the trial court had a mandatory duty to suspend criminal
proceedings and institute Penal Code2 section 1368 proceedings. We reject defendant’s
contention, finding no substantial evidence in the record to create a reasonable doubt that
defendant was unable to understand the proceedings or to assist counsel in the conduct of
a defense in a rational manner.



1      Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].
2      All further section references are to the Penal Code.

                                                2
                                               I
                                     Standard Of Review
         The prohibition against trying a mentally incompetent defendant “is fundamental
to an adversary system of justice.” (Drope v. Missouri (1975) 420 U.S. 162, 172 [43
L.Ed.2d 103, 113].) The competency 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. 402 [4 L.Ed.2d 824,
825].)
         “State constitutional authority is to the same effect. [Citation.] [¶] The applicable
state statutes essentially parallel the state and federal constitutional directives.”
(People v. Lightsey (2012) 54 Cal.4th 668, 691.) Section 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 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.” A defendant is presumed to be mentally competent to
stand trial. (§ 1369, subd. (f).) If a doubt arises in the mind of the judge as to the mental
competence of the defendant, the judge shall suspend the criminal proceedings and order
that the question of the defendant’s mental competence be determined at a hearing after
the defendant has been examined by an appropriate expert appointed by the judge.
(§§ 1368, 1368.1, 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 aware of substantial evidence of mental
incompetence. (People v. Pennington (1967) 66 Cal.2d 508, 518; People v. Jones (1991)
53 Cal.3d 1115, 1153.)

                                               3
       “[E]vidence of a defendant’s irrational behavior, his demeanor at trial, and any
prior medical opinion on competence to stand trial 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 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. 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, psychopathic, 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 discretion 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, the 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 the complaint, public defender J. Lon
Cooper was appointed and defendant entered a not guilty plea. The court ordered an
assessment at “Alta Sierra Center” (Alta), noting defendant’s special mental health and
medical needs and the requirement of supervision. There is no reporter’s transcript of
this proceeding, only case history notes.



                                               4
       On May 9, 2012, the probation officer filed a bail report recounting defendant’s
family history, employment history, and 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 mother was “abused by his father on a regular
basis” and defendant probably “witnessed this on multiple occasions.” As far as
employment, defendant “worked a number of small jobs” and “[a]s long as he was taking
his medications, he reportedly performed quite well.” Under other information, the
probation officer recounted that defendant suffered brain trauma twice, the first time
when he was four years old (fell from a second story balcony) and the second time when
he was 14 years old (hit by a car). He was also sexually abused when 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 was 15. He has attempted suicide more than
10 times, the latest in February 2012, having never recovered from his brother’s death
according to his mother. At 18, he started living on his own and was placed in housing in
Loyalton. Defendant has had psychotic episodes and has been in a mental hospital six
times in the last five years, 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 understand 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 confused 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 was a “tragic case” and that defendant should
remain in custody or possibly be released to a locked mental facility.

                                             5
       On May 11, 2012, defendant appeared with attorney Cooper who advised the court
that defendant would waive his right to a preliminary hearing. The court found that
defendant understood and waived his rights and held him to answer. Again, there is no
reporter’s transcript of this proceeding, 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 rights and consequences, and
entered a not guilty plea on defendant’s behalf. (Italics added.) Cooper advised that time
was not waived and that he needed an assessment 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 jail, and I don’t blame him. And I also need a chance -- in
terms of fully comprehending what he comprehends, 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 going 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 could use but that “an assessment would be helpful” to him and
that he did not want to “just assume that this is the appropriate thing to do . . . .”
       At a pretrial conference on June 8, 2012, 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 understands the significance of a time waiver,
which is no time waiver. I think he is capable of entering a time waiver today for a
limited period. We have discussed the details. He is in custody . . . I believe he is willing
to waive time to [July 18]. I suggest that date, because he met with someone out at the
California Regional Services for a couple of hours. They interviewed him, and his

                                               6
[p]syche evaluation is for June 26. I would like to have the 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 personally 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 responded “[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 evaluation was scheduled for June 26,
had spoken with Alta about the assessment, and “fully expected” to appear with
defendant personally present and with the assessment in hand, commenting if he thought
he “needed to do more to get that, [he] would have done so.” The prosecutor expected
more than a letter as well. Cooper also noted 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 situation . . . , being taken out of
the criminal system to deal with [defendant’s] issues.” (Italics added.) The prosecutor
concurred with Cooper’s evaluation of the case and that Cooper needed the “[p]syche
assessment to know what is going on with [defendant],” noting that “Human Services got
                           3
involved in this early on.” 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 (prior to the arson offense), the court “ordered that the
defendant undergo a Department of Developmental Disability Assessment at the
defendant’s cost at the direction of John Hiatt, Sierra County Human Services Adult
Protection Social Worker.”

                                               7
order to “feel comfortable saying to [defendant], 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 stated that “we need all the information for
[defendant] that we can get” but that defendant did not “have an issue” with further
county time and then placement with Alta “because he has special needs.” The
prosecutor did not object to a “pre-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 trial within 60 days and that he needed to
“move ahead” with the case. Defendant 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 probation 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 the 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. Defendant was caught on video kicking a vending
machine at a market, causing extensive damage (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 Coke 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 machine. I just wanted to damage it.’ ”
       The probation officer also reported that on July 16, 2012, she obtained a copy of
the psychological evaluation performed on defendant by Jeffrey Miller and completed on

                                                8
June 26, 2012, noting that the “primary purpose of the evaluation was to assess the
defendant’s intellectual and emotional functioning, his adaptive behavior skills in order
to clarify his diagnosis, assist in the determination of his eligibility for Regional Center
Services, and make recommendations concerning treatment and residential placement.”
(Italics added.) The probation officer reported that Miller diagnosed defendant as having
“Schizoaffective Disorder, Posttraumatic Stress Disorder, Mild Mental Retardation with a
full scale IQ of 53, Dependent Personality Traits, Posttraumatic Brain Injury, Seizure
Disorder, Von Willebrand Disease, Hypertension, and Polycystic Kidney Disease.” The
probation officer included Miller’s recommendations: “That the defendant access
individual psychotherapy and medication management focused 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 participate 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 the court process due to his mild mental
retardation with an IQ of 53” and did not address what threat level defendant poses to
society. (Italics added.) The probation officer 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 about defendant’s eligibility under the “category of mild
retardation,” the residential facility recommended defendant’s placement, and the
likelihood of defendant qualifying for the placement within 60 days.
       The probation officer also stated that when defendant did not take his
“psychotropic medications as prescribed, he engages in behaviors that have resulted in
the law violations pending before the court.” The probation officer considered it
“problematic” whether to recommend either probation or prison “[w]ithout a
determination as to the defendant’s ability to understand and participate in the court

                                              9
process” as well as the risk he posed to society if released. It was the probation officer’s
opinion that it was “questionable” whether defendant had the ability to understand terms
and conditions but that “medication compliance” (defendant 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 with defendant, as well as defendant’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 today.” 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 understand. Cooper confirmed that he was
satisfied that defendant understood his rights, defenses, and consequences 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 were “lucky” to obtain
placement for defendant who now had a felony arson conviction with which he was not
eligible for Alta’s diversion program which guarantees two years of services paid
completely by Alta. Without diversion, defendant 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 misdemeanor so that he could be enrolled in
diversion. The probation officer recommended probation.
       At sentencing on September 14, 2012, defendant appeared and was not in custody.
Cooper confirmed that there was no legal cause why judgment should not be imposed.
Cooper commented that his concerns were the defendant’s “special needs” but Cooper
was “satisfied, from talking to [defendant], that he is happy with the placement where he

                                             10
is” and that he is “getting counseling, as instructed” and “wants to be successful with his
probation.” Defendant had nothing to add. The court then granted probation. In
discussing factors related to defendant, the court noted “[w]hile the defendant’s IQ is 53,
he appears able to understand when given simple basic directives.” An Alta
representative stated that defendant would receive help to register as an arson offender
but noted that such registration “will slow his admission to any placement or any care
home for him.” Defendant confirmed that he understood the terms and conditions of
probation as stated by the court and confirmed 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.” Defendant confirmed that he understood how to
appeal.
       In a letter to Cooper dated October 22, 2012, after sentencing, an Alta intensive
intervention specialist explained that defendant wanted to appeal, claiming defendant did
not “understand what he was doing,” and after sentencing, “was unable to explain what
had just gone on in his hearing or in any of the previous hearings.” The specialist also
claimed that defendant was “unable to explain what it meant to register as an arsonist or
what the result could potentially be if he didn’t comply with his conditions of probation.”
The specialist stated that Alta “is concerned that [defendant] was not competent to stand
trial and was therefore, not competent to issue 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 agreements he was being offered.” The specialist stated,
“When concern about his competency was brought to your attention . . . , you reported
. . . that you felt [defendant] understood enough to go forward with his case.” (Italics
added.) The specialist attached 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.

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                                             III
                                     The Court’s Ruling
       Defendant contends the trial court’s mandatory duty to suspend criminal
proceedings and institute section 1368 proceedings was “first triggered at arraignment”
when Cooper stated that he was not sure that defendant understood and that he needed an
assessment. Defendant claims the trial court was next alerted when the preplea probation
report stated that defendant’s IQ was 53 (which raised a question about defendant’s
competency) and that the psychological evaluation did not address the issue. Defendant
claims Cooper’s opinion that defendant understood when he entered his plea “did not
relieve the court of its duty to suspend proceedings 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 defendant 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 received a high school diploma through a special
education program. When defendant entered his plea he responded appropriately to all
questions and defense counsel felt that defendant “clearly” understood the plea
proceedings, his rights, defenses, and consequences. At sentencing, Cooper noted that
defendant was “happy” with his placement. Defendant confirmed that he understood the
terms and conditions of probation and agreed to them. That an Alta specialist was of the
opinion over a month after sentencing that defendant had not understood when he entered
his plea and was sentenced does not change the evidence 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 a

                                             12
developmental disability, he obtained his high school diploma and understood short and
direct questions. He had a mental disorder but the evidence indicated that as long as he
took his medications, there were no behavioral problems. We conclude that no
substantial evidence was presented indicating 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.




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