Filed 7/31/13 P. v. Stewart CA2/8

              NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                SECOND APPELLATE DISTRICT

                                            DIVISION EIGHT

THE PEOPLE,                                                             B239626

                   Plaintiff and Respondent,                            (Los Angeles County
                                                                         Super. Ct. No. TA107119-01)
         v.

JAMES E. STEWART,

                   Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County.
Ricardo R. Ocampo, Judge. Affirmed.

         Jean Matulis, under appointment by the Court of Appeal, for Defendant and
Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Paul M.
Roadarmel, Jr., Deputy Attorney General, and Seth P. McCutcheon, Deputy
Attorney General, for Plaintiff and Respondent.


                                   __________________________
                                INTRODUCTION

         Defendant James Stewart appeals from the judgment following his plea of
no contest to carjacking and personal use of a gun. His sole contention on appeal
is the court erred in denying him a second hearing on his competency to stand
trial.

                    FACTS AND PROCEDURAL HISTORY

A.       History of the Crime

         At approximately 2:00 a.m. on June 20, 2009, Oscar Ramirez was stopped
at a red light in Compton. Defendant approached Ramirez’s vehicle from the
passenger side and spoke to Ramirez through an open window. Suddenly,
defendant pulled out a handgun, pointed it at Ramirez’s head, and threatened to
shoot if Ramirez did not step out of the car. Ramirez complied, and defendant
proceeded to drive away in the car.
         Ramirez ran home and called the police. A Compton police officer
responded to the call and interviewed Ramirez upon arrival. The officer used his
police radio to describe defendant and the vehicle to other officers, and a call came
in about twenty minutes later informing him that a suspect had been detained at a
nearby gas station. The officer drove Ramirez to the gas station, and Ramirez
identified defendant, the gun, and the vehicle. Defendant was arrested and
charged with five felonies.1


1       Defendant was charged with carjacking with the use of a firearm (Pen.
Code, § 215, subd. (a)), grand theft auto (Pen. Code, § 487(d)(1)), unlawful
driving or taking of a vehicle (Pen. Code, § 10851, subd. (a)), receiving stolen
property (Pen. Code, § 496d, subd. (a)), and possession of a firearm by a felon
(Pen. Code, § 12021, subd. (a)(1)). It was further alleged that defendant
personally used a firearm (Pen. Code, § 12022.53, subd. (b)), committed the crime
for the benefit of a street gang (Pen. Code, § 186.22, subd. (b)(4)), and had two
prior felony convictions for burglary and accessory to murder.
        All future statutory codes are to the Penal Code unless otherwise stated.
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B.     Initial Competency Proceedings

       While waiting for trial, defense counsel in October 2009 declared a doubt
as to defendant’s mental competency. The case was remanded to Department 95
to determine whether he was competent to stand trial. Three doctors examined
defendant and reported their findings to Department 95. Two doctors agreed that
defendant was legally incompetent. The third doctor recognized that defendant
might have had limited cognitive functioning but concluded that he was
competent. Based on the reports, Department 95 concluded in July 2010 that
defendant was incompetent. He was assigned to the Department of
Developmental Services in September 2010 for treatment.

C.     Second Request for Competency Proceedings

       Nearly a year later, on August 2, 2011, the Porterville Developmental
Center certified that defendant could understand the nature of the proceedings
against him and rationally cooperate with his attorney. A psychiatrist who relied
on three administrations of the Wechsler Adult Intelligence Scale (WAIS) test
conducted in the previous five months signed the certification. The psychiatrist
reported signs that defendant was feigning incompetence to delay trial, and a
second doctor offered a report “strongly agree[ing]” with the psychiatrist’s
opinion. Department 95 took these reports into consideration, found defendant to
be competent on August 29, 2011, and returned defendant’s case to the trial court.
       In the five months following defendant’s return to the trial court, defendant
appeared in court eight times without questions raised about his ability to assist
counsel. Then, on February 8, 2012, the day before trial was to begin, counsel for
defendant sought again to declare a doubt as to defendant’s competency.2 Counsel

2      That same day, the Los Angeles County District Attorney amended the
information to charge defendant with carjacking with the use of a firearm (§ 215,
subd. (a)) and possession of a firearm by a felon (§ 12021, subd. (a)(1)). The
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moved for another evidentiary hearing, citing as supposedly new evidence a recent
psychological evaluation of defendant. This recent evaluation was prepared by
Dr. Robert J. Rome, who reported that, among other things, defendant’s multiple
WAIS tests within a six-month period produced skewed results of defendant’s
cognitive abilities. The court reviewed Dr. Rome’s report, which we examine in
greater detail under Discussion, and the next day it denied the motion for a second
competency hearing on the ground that there was no substantial evidence of
incompetency. The court noted that since defendant “was returned as competent
to stand trial, the defendant has been before the court 8 separate times over a 5
month period. At no time does the file reflect any hint or mention of any
competency or incompetency.” Defendant subsequently pled no contest and was
sentenced to 13 years in state prison. The only issue on appeal is whether there
was substantial evidence before the court to require another competency hearing.3

                                  DISCUSSION

       Defendant contends the court erred in denying a second competency
hearing. The legal test a trial court applies in deciding whether to order an
additional competency hearing is whether a substantial change of circumstances or
new evidence casts serious doubt on the prior finding of competency. (People v.
Jones (1991) 53 Cal.3d 1115, 1152 (Jones).) If a defendant offers evidence
raising a reasonable doubt concerning his ability to understand the nature of the
proceedings and assist his attorney in his own defense, due process requires an
additional competency hearing. (Ibid.) When substantial evidence is not adduced,



information also specially alleged defendant personally used a firearm
(§ 12022.53, subd. (b)) and had two prior felony convictions for burglary and
accessory to murder.

3     The trial court issued a certificate of probable cause for the appeal which
was taken after a no contest plea. (§ 1237.5.)
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holding an additional competency hearing is within the discretion of the trial court.
(People v. Welch (1999) 20 Cal.4th 701, 742.)
       Defendant relies solely on Dr. Rome’s report as new evidence. Focusing
on defendant’s repeated WAIS cognitive tests, Dr. Rome wrote that “rehearsal
factors and the increasing familiarity with the test instructions and tasks” arising
from taking the test more than twice in six months as happened here can overstate
defendant’s intelligence. He stated that an adjusted test score taking into account
higher scores from repeated tests would have placed defendant deeper into the
mentally retarded range, which was consistent with defendant’s test scores from
middle and high school. Because there had been concerns about defendant’s low
cognitive functions and mental health for over a decade, Dr. Rome concluded
defendant was not malingering. Dr. Rome rejected another psychiatrist’s opinion
that defendant was competent because that psychiatrist did not know the
medications defendant was taking at the time of defendant’s evaluation for
competency.
       Our review of case law establishes that the trial court was correct in
determining that Dr. Rome’s report failed to cast doubt upon the prior finding of
competency or show a substantial change in circumstances. Four cases in
particular inform our understanding. In Jones, supra, 53 Cal.3d 1115, the trial
court properly denied rehearing because defendant appeared competent throughout
trial. There, defendant was found competent during pretrial proceedings, and the
issue was not raised again until after trial before the court’s pronouncement of
judgment. (Id. at p. 1153.) At that time, defense counsel sought reconsideration
of the initial finding, arguing that for a substantial period of time, including at trial
that day, defendant was unable to assist with the case. (Id. at p. 1152.) Defendant
offered a psychiatrist as a witness and requested another competency hearing.
(Ibid.) The trial court denied the motion without hearing the psychiatrist. (Ibid.)
Defendant appealed from the denial, and the Supreme Court held that the trial
court was correct because defendant’s condition was “essentially unchanged from

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the start of trial, when the court found him competent, to the time he was
sentenced, when defense counsel asked that proceedings again be suspended.” (Id.
at p. 1153.) The Supreme Court also held that it was not error for a trial court to
use personal observations in drawing its own conclusions about a defendant’s
competency. (Ibid.)
       In People v. Taylor (2009) 47 Cal.4th 850, there was no change in
circumstances when an unusual, but competent, defendant acted strangely during
trial. There, one doctor reported that defendant had deficient mental abilities, but
defendant was found competent at a hearing nonetheless. (Id. at pp. 860-861.)
Some of his deficiencies were on display during trial, and, upon appeal from his
conviction, defendant argued that this behavior should have led the court to
reevaluate his mental competency. (Id. at p. 864.) The Supreme Court ruled that
defendant failed to point to anything “indicating he had lost the ability to
understand the nature of the criminal proceedings.” (Ibid.) The court said that the
defendant’s efforts may have been inadequate, but they were “not of a character to
cast serious doubt on the trial court’s finding that he knew what he was charged
with and the nature of the trial in which he took full part.” (Ibid.)
       In People v. Lawley (2002) 27 Cal.4th 102, much like Taylor, the Supreme
Court compared the defendant’s behavior to the record and concluded that the trial
court was not obligated to initiate a second competency hearing based on a record
depicting unusual conduct. There, a self-represented defendant exhibited odd
behavior the morning of jury selection and expressed some delusional personal
beliefs. (Id. at pp. 125-127.) The judge initiated proceedings and two
psychiatrists offered conflicting reports. (Id. at pp. 127-130.) A separate judge
presiding over the hearing ruled defendant competent for trial, and the case was
assigned to a new trial judge. (Id. at p. 130.) After his conviction, the defendant
argued that the new trial judge should have held another hearing based on the
defendant’s delusional beliefs and odd behavior in the record. (Id. at p. 136.) The
Supreme Court ruled that the instances defendant cited were not new evidence or a

                                           6
change of circumstances because they appeared “either to manifest the same
arguably delusional beliefs . . . or to reflect the ineptitude frequently exhibited by
self-represented defendants.” (Id. at pp. 136-137, fn. omitted.) The court also
ruled that it was confident in the ability of trial courts to preside over competency
hearings whether or not they have some prior personal experience of a defendant’s
in-court behavior. (Id. at pp. 133-134.)
       In People v. Kelly (1992) 1 Cal.4th 495, the trial court was not required to
hold a second hearing when the defendant raised a doubt based on the same
evidence advanced earlier in the proceedings for which the court had conducted a
competency hearing. There, defendant had raised a doubt during jury selection but
was deemed competent after a competency hearing. (Id. at pp. 541-542.)
Defendant did not thereafter renew his claim of incompetency until the jury
convicted him. (Id. at p. 542.) Relying on the same evidence offered during the
initial competency hearing, defendant argued that the trial court should have
initiated another competency hearing during trial. (Ibid.) Disagreeing, our
Supreme Court held that there was no change of circumstances. (Id. at p. 543.)
       Here, other than Dr. Rome’s criticism of repeatedly administering the
WAIS cognitive test to defendant, there was nothing in the report that suggested
defendant’s condition changed from the earlier determination of defendant’s
competency. (Jones, supra, 53 Cal.3d at p. 1153.) Defendant took “full part” in
the proceedings and offered no evidence “indicating he had lost the ability to
understand the nature of the criminal proceedings.” (People v. Taylor, supra,
47 Cal.4th at p. 864; see also People v. Lawley, supra, 27 Cal.4th 102
[notwithstanding defendant’s idiosyncrasies, defendant’s behavior during trial did
not suggest incompetency].) Defendant mistakenly contends that Dr. Rome’s
report is new evidence. In fact, the report relies on information “generally
included in the facts” of the original competency proceedings and the significance
of repeated WAIS tests was a disputed fact which the trial court resolved against
defendant. (People v. Kelly, supra, 1 Cal.4th at p. 543.) Ultimately, the criticism

                                           7
of the other doctors’ reports fails to cast “a serious doubt on the validity” of the
initial proceeding or to constitute a substantial change in circumstances. (Jones,
supra, at p. 1152.) For these reasons, the trial court properly denied a second
hearing.

                                   DISPOSITION

       The judgment is affirmed.




                                                   RUBIN, J.
WE CONCUR:




              BIGELOW, P. J.




              FLIER, J.




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