Filed 11/4/14 P. v. Gray 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                     (Sacramento)
                                                            ----




THE PEOPLE,                                                                                  C074022

                   Plaintiff and Respondent,                                     (Super. Ct. No. 11F03854)

          v.

OLIVER GRAY,

                   Defendant and Appellant.




          A jury found defendant Oliver Gray guilty of five counts of robbery and found that
he had personally used a firearm in committing the crimes, and defendant pled no contest
to being a felon in possession of a firearm. After finding that defendant had a strike
prior, the trial court sentenced him to an aggregate term of 30 years and four months in
prison.
          On appeal, defendant contends the trial court erred in failing to suspend
proceedings and appoint the director of the regional center for the developmentally
disabled to examine him to determine his competence to stand trial. Defendant also

                                                             1
contends the trial court erred in failing to conduct an inquiry when the jury foreperson
complained during deliberations that one of the jurors appeared to be unable to
comprehend the reasonable doubt instruction. We find no error and affirm.
                  FACTUAL AND PROCEDURAL BACKGROUND
       We omit a recitation of the underlying facts, as they are immaterial to our
resolution of defendant’s appeal. For our purposes, it is sufficient to say that in May
2011, defendant was charged with robbery and a number of other offenses stemming
from an incident two days earlier. At a hearing near the end of June 2011, defense
counsel expressed a doubt as to defendant’s competence, and the trial court (Judge
Marjorie Koller) immediately suspended the proceedings and ordered that defendant be
examined.
       Dr. Charles B. Schaffer, a psychiatrist and diplomate with the American Board of
Psychiatry and Neurology, conducted a psychiatric evaluation of defendant and produced
a report dated July 20, 2011. Dr. Schaffer concluded that defendant had the ability to
understand the proceedings and to assist his counsel in a rational manner. Initially,
defense counsel requested a trial on the issue of defendant’s competency. Subsequently,
however, the matter was referred back to Dr. Schaffer for a further evaluation,1 and he
produced a supplemental report dated October 3, 2011, in which he once again concluded
that defendant had the ability to understand the proceedings and to assist his counsel in a
rational manner. Two days later, on October 5, the parties submitted the matter based on
Dr. Schaffer’s supplemental report, and the court found defendant competent and
reinstated the criminal proceedings.




1      Apparently the matter was referred back to Dr. Schaffer at defense counsel’s
request based on defendant’s “limited cooperation during the initial evaluation and
additional information from counsel and defendant’s family.”

                                             2
       In April 2012, defendant filed a Faretta2 motion. The court (Judge John Winn)
appointed Dr. Paul G. Mattiuzzi to determine if defendant was competent to represent
himself. Dr. Mattiuzzi examined defendant in May and concluded that defendant was not
competent to represent himself. At a hearing in June, the parties submitted on
Dr. Mattiuzzi’s report, and the court denied the Faretta motion.
       Meanwhile, in preparation for trial, defense counsel arranged for a comprehensive
neuropsychological evaluation of defendant by Dr. John J. Wicks, a forensic
neuropsychologist. Dr. Wicks conducted his evaluation over three days in April and May
2012 and produced a report dated July 16, 2012. Based on that report, defense counsel
decided to have a PET scan conducted on defendant’s brain to determine if any organic
neurological defect could be detected. In August 2012, the parties agreed to continue the
trial to September to allow defense counsel to obtain the scan. In September, defense
counsel moved for a further continuance because she needed a psychiatrist or neurologist
to order the scan and had not yet been able to get the order. Consequently, the court
continued the trial again, ultimately setting a trial date in January 2013.
       A week before the scheduled trial date of January 17, 2013, defense counsel put
the case on calendar so that she could again express a doubt about defendant’s
competence. This time, defense counsel informed the court that she believed defendant
had a developmental “deficiency under [Penal Code section ] 1368.” She stated that the
brain scan was completed in November, and based on her conversations with the
neuropsychiatrist who ordered the scan (Dr. Albert Globus), as well as review of the
radiologist’s report of the scan, there were “confirmed areas of . . . brain damage
consistent . . . with Dr. Wicks’ earlier report which was based on family history, on
educational records, [and] juvenile probation reports of Mr. Gray dating back to when he




2      Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562].

                                              3
was eight years old.” Defense counsel contended the scan results were “a hard science
confirmation and validation of Dr. Wicks’ neuro psych evaluation . . . .” She sought a
referral for further examination by “psychologists [who are] available who can focus on
developmental disabilities and focus more on his abilities and lack of abilities . . . .”
       In opposition to the request for another competency hearing, the People argued
that Dr. Wicks’s report did not justify a further competency hearing because it did not
disclose a substantial change of circumstances or new evidence casting serious doubt on
the validity of the prior finding of competence.
       The court stated that while both attorneys were “spending a lot of time on Dr.
Wicks’ report,” that report had never been submitted to the court. Defense counsel
provided a copy of the report to the court, and the court reviewed the report before calling
the matter again later that afternoon. After both attorneys submitted without offering
further evidence, the court explained that it was a “difficult case” because the
competency issue was considered earlier based on whether defendant “ha[d] a mental
illness that require[d] psychiatric treatment and medication,” while “[t]he issue now is
whether or not it’s a type of developmental disability.” Noting again that it was “a close
case,” the court concluded as follows: “[W]hen I review it all, I think my thought is that
based upon everything I’ve seen, I think Mr. Gray is at this point competent to stand trial.
So I’m not going to suspend proceedings again. I’ve had some interaction with Mr. Gray
directly because at one point he wanted to represent himself. Actually, if it wasn’t for the
fact that we suspended proceedings, I would have never appointed a doctor probably to
meet with Mr. Gray. You know, even though it’s a close case, I do feel that at this point
he is able to assist counsel and able to understand the nature of the proceedings. So I am
going to deny the request to suspend criminal proceedings at this point.”
       The case was tried to a jury in February 2013. On the third day of jury
deliberations, the jury foreperson asked to speak to the court (Judge Michael Kenny).



                                               4
After the court warned the foreperson not to say anything about the jury’s deliberations,
the foreperson told the court the following:
       “My concern is with what a juror’s literacy level is. We have a juror who I do not
believe has the comprehension to be able to read the instructions as given to her. I’m
concerned, because we have tried to explain in different modes and modalities. I teach
special needs students, and I have tried numerous ways to see if we can get her to
comprehend what ‘reasonable’ means and what ‘beyond a reasonable doubt’ means, and
it’s been stalling us.” The court then ascertained from the foreperson that the juror at
issue was participating in deliberations and while the foreperson believed the juror had
“limited literacy,” the other jurors had read the instructions “out loud to her,” “but it did
not seem to help.”
       The court then allowed the attorneys to ask questions, and the prosecutor asked
whether the juror appeared to understand the instructions; the foreperson said it did not
appear so. The court prohibited the foreperson from explaining the basis of her
conclusion that the juror did not understand the instructions, however, because “[t]hat is
going into deliberations.” The foreperson then reiterated that multiple people had read
the instructions, the instructions had been read slowly, and they “[e]ven had [the juror]
track with her finger along with the text.”
       The court told the foreperson, “it sounds like you are doing everything that the
Court would request you to do,” and “individuals have varying interpretations at times,
based on the facts as they have determined them through the process of the trial.”
Accordingly, the court directed the foreperson to return and continue deliberating.
       Outside the presence of the foreperson, the prosecutor argued that the problem
appeared to be more than a difference of opinion; “[i]t sounds like the juror does not
understand the instruction itself, or the juror cannot understand the instructions.” The
court disagreed, stating that “it all boils around what is reasonable and what is not
reasonable. And it sounds like substantial jurors have reached a determination of facts of

                                               5
what is reasonable, and that this juror does not believe that, in fact, that interpretation is
reasonable.” The prosecutor proposed that the court ask the juror if she understood the
instructions as they were read to her without asking her about her opinion, but the court
declined to do so because the court understood “that there was a difference [of opinion]
with regard to -- as to what reasonable doubt is.” Ultimately, the court decided to “wait
and see.” That afternoon, without further incident, the jury returned its verdict.
                                        DISCUSSION
                                               I
                                  Defendant’s Competence
       Defendant first contends that the trial court erred in failing to suspend the criminal
proceedings and appoint the director of the regional center for the developmentally
disabled to examine him in January 2013 because Dr. Wicks’s report and the PET scan
findings constituted substantial evidence that he was not competent to stand trial because
he was suffering from a developmental disability. We disagree.
       Penal Code “[s]ection 1367, subdivision (a) states that a ‘defendant is mentally
incompetent . . . if, as a result of 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.’ ‘ “When the accused presents substantial
evidence of incompetence, due process requires that the trial court conduct a full
competency hearing. [Citation.] Evidence is ‘substantial’ if it raises a reasonable doubt
about the defendant’s competence to stand trial.” ’ ” (People v. Weaver (2001) 26
Cal.4th 876, 953.)
       A different rule applies, however, after the trial court has found the defendant to be
competent and the issue of his or her competency is being raised for a second time.
“ ‘Once a defendant has been found competent to stand trial, a second competency
hearing is required only if the evidence discloses a substantial change of circumstances or



                                               6
new evidence is presented casting serious doubt on the validity of the prior finding of the
defendant’s competence.’ ” (People v. Weaver, supra, 26 Cal.4th at p. 954.)
       Defendant fails to argue his case in light of the foregoing rule and instead insists
on arguing the substantial evidence test that applies to an initial determination of a
defendant’s competency.3 To justify this approach, defendant contends that “two related
but different procedures” apply in this context depending upon whether the defendant is
suspected to be incompetent to stand trial because of a mental disorder or because of a
developmental disability. According to defendant, “[i]n the typical case, where the
question is whether a defendant is incompetent due to a psychiatric illness or mental
disorder, ‘the court shall appoint a psychiatrist or a licensed psychologist, and any other
expert the court shall deem appropriate, to examine the defendant.’ [Citation.] However,
if it is suspected that the defendant is incompetent and suffers from a developmental
disability, such as a neurological disorder, the court must ‘appoint the director of the
regional center for the developmentally disabled . . . to examine the defendant.’ ” (Fn.
omitted.) In defendant’s view, because “Dr. Wicks’ report presented new evidence of a
neurological impairment akin to intellectual disability based on multiple testing
corroborated by [defendant’s] PET scan, as opposed to any mental disease or illness that
had previously been evaluated by Dr. Schaffer [citation], the trial court was duty-bound
to refer [defendant] to the regional center . . . .”
       Defendant is mistaken. The duty of the trial court to declare a doubt as to the
defendant’s competency, suspend proceedings, and conduct a full-blown competency
hearing arises “[w]hen defense counsel has presented [or the court otherwise becomes
aware of ] substantial evidence that a defendant is incompetent to stand trial.” (People v.
Jones (1991) 53 Cal.3d 1115, 1153; see also Pen. Code, § 1368.) It is only after the court



3      The People note the applicable rule in their brief but -- like defendant -- do not
apply it in their argument, instead arguing the issue in terms of substantial evidence.

                                                7
has declared a doubt and suspended proceedings that the court must “appoint a
psychiatrist or licensed psychologist, and any other expert the court may deem
appropriate, to examine the defendant” (Pen. Code, § 1369, subd. (a)), unless “it is
suspected the defendant is developmentally disabled,” in which case “the court shall
appoint the director of the regional center for the developmentally disabled . . . or the
designee of the director, to examine the defendant” (ibid.).
       Under the foregoing provisions, the duty to suspend proceedings and conduct a
competency hearing is triggered by substantial evidence that a defendant is incompetent
to stand trial -- regardless of the basis for that suspected incompetence. The basis for the
defendant’s suspected incompetence comes into play only after the court has ordered a
competency hearing, and that basis affects only whether the court is required to appoint a
psychiatrist or licensed psychologist to examine the defendant or instead is required to
appoint the director of the regional center for the developmentally disabled or the
director’s designee.
       Thus, the fundamental issue in each case is not what the basis is for the
defendant’s suspected incompetence -- a mental disorder or a developmental disability --
but rather whether the defendant is incompetent, whatever the basis of that incompetence
may be. In light of this fact, the rule governing second competency hearings applies
regardless of the fact that the renewed questioning of the defendant’s competence rests on
a different basis than the original questioning of his competence. In other words, a
court’s initial determination of competency is presumed correct, regardless of whether the
suspected incompetence was based on a mental disorder or a developmental disability,
and a second competency hearing is required only if: (1) there is evidence of a
substantial change of circumstances; or (2) new evidence is presented that casts serious
doubt on the validity of the prior finding of competence. (People v. Weaver, supra, 26
Cal.4th at p. 954.)



                                              8
       Here, defendant makes no attempt to show that Dr. Wicks’s report and the results
of the PET scan of his brain cast serious doubt on the determination of his competency
that the trial court made in October 2011 based on Dr. Schaffer’s two evaluations. While
the PET scan results may well have provided a basis for believing that defendant was
suffering from a developmental disability consisting of brain damage dating back to his
youth,4 defendant fails to explain how those results, even when read along with
Dr. Wicks’s report, cast serious doubt on the determination barely a year earlier that
defendant was competent to stand trial. It is not enough for defendant to argue, as he
does, that Dr. Wicks’s “determination that [defendant] suffered from significant
neurological impairment documented from an early age was sufficient to raise a doubt
and most certainly a suspicion of a handicapping condition found to be closely related to
intellectual disability that was of such a severe nature and affected [defendant]’s brain
everywhere to such a degree that the deficiencies could not be compensated for.”
Instead, defendant needed to show how Dr. Wicks’s conclusions, especially when
considered in light of the PET scan results, cast serious doubt on the trial court’s prior
determination that defendant was competent to stand trial because he was was both able
“to understand the nature of the criminal proceedings” and “to assist counsel in the
conduct of a defense in a rational manner.” (Pen. Code, § 1367, subd. (a).) Having failed
to make any such showing, defendant has failed to overcome the “ ‘great deference’ ” we
must give the trial court’s ruling that a second competency hearing was not required here.
(People v. Weaver, supra, 26 Cal.4th at p. 953.) Accordingly, we find no error in the
court’s refusal to suspend the proceedings and conduct a second hearing on defendant’s
competence to stand trial.



4       We note that the only evidence of the PET scan results before the trial court at the
time at issue here consisted of defense counsel’s statements to the court regarding those
results. For our purposes, however, we take those statements as an offer of proof.

                                              9
                                              II
                                     Juror Competence
       Defendant next contends the trial court erred in failing to conduct any inquiry after
the jury foreperson reported that one of the jurors did not understand the reasonable doubt
instruction. Again, we disagree.
       “If at any time . . . a juror dies or becomes ill, or upon other good cause shown to
the court is found to be unable to perform his or her duty, . . . the court may order the
juror to be discharged . . . .” (Pen. Code, § 1089.) “Once a trial court is put on notice
that good cause to discharge a juror may exist, it is the court’s duty ‘to make whatever
inquiry is reasonably necessary’ to determine whether the juror should be discharged.”
(People v. Espinoza (1992) 3 Cal.4th 806, 821.) “However, ‘ “not every incident
involving a juror’s conduct requires or warrants further investigation. ‘The decision
whether to investigate the possibility of juror bias, incompetence, or misconduct--like the
ultimate decision to retain or discharge a juror--rests within the sound discretion of the
trial court.’ ” [Citation.] “ ‘[A] hearing is required only where the court possesses
information which, if proven to be true, would constitute “good cause” to doubt a juror’s
ability to perform his duties and would justify his removal from the case.’ ” ’ ” (People
v. Cowan (2010) 50 Cal.4th 401, 506.) Where the trial court “reasonably could have
concluded that there were no grounds for believing good cause to excuse [a juror] might
exist,” it is not an abuse of discretion for the court to decline to hold a hearing or conduct
a further inquiry. (Id. at pp. 507-508.)
       Here, defendant suggests the trial court abused its discretion by not conducting a
further inquiry because the court was “presented with evidence that a juror m[ight] be
unable to deliberate.” Not so. In fact, the jury foreperson told the court that the juror in
question was, in fact, “participating” in deliberations.
       To the extent defendant’s argument rests on the concern that, although able to
deliberate, the juror in question might have been unable to comprehend the jury

                                              10
instructions, the statements by the jury foreperson were ambiguous as to what the
problem actually was, and under the circumstances it was reasonable for the trial court to
conclude that the problem was not, in fact, with the juror’s ability to comprehend the jury
instructions and thus perform her duties but was, instead, reflective of a disagreement
over what constituted reasonable doubt. At first, the jury foreperson expressed concern
with the juror’s “literacy level.” Ultimately, however, the court ascertained that the
instructions had been read to the juror; thus, the juror’s ability to read was not really the
issue. And while the foreperson generally expressed doubt about whether the juror had
“the comprehension to be able to read the instructions as given to her,” the foreperson’s
only specific concern was about the juror’s ability “to comprehend what ‘reasonable’
means and what ‘beyond a reasonable doubt’ means.” Under these circumstances, it was
not unreasonable for the trial court to conclude that the real problem was not with the
juror’s ability to read or with her ability to comprehend the instructions generally, but
rather the problem lay in a disagreement among the jurors over what constituted
reasonable doubt under the facts of the case.
       Because, under these circumstances, the trial court reasonably could have
concluded that there were no grounds for believing good cause to excuse the juror might
exist, the trial court did not abuse its discretion in refusing to hold a hearing or conduct a
further inquiry.
                                       DISPOSITION
       The judgment is affirmed.

                                                         ROBIE                  , Acting P. J.
We concur:


      MURRAY                 , J.


      DUARTE                 , J.


                                              11
