 

Filed 6/25/13 P. v. Juarez CA4/2

                            NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for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

                                          FOURTH APPELLATE DISTRICT

                                                           DIVISION TWO



THE PEOPLE,

             Plaintiff and Respondent,                                                E055235

v.                                                                                    (Super.Ct.No. FSB056525)

DAVID MICHAEL JUAREZ,                                                                 OPINION

             Defendant and Appellant.




             APPEAL from the Superior Court of San Bernardino County. Bryan Foster,

Judge. Affirmed with directions.

             Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and

Appellant.

             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, and Anthony Da Silva and

Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.




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                                    I. INTRODUCTION

        In November 2011, a jury found defendant David Michael Juarez guilty of the first

degree murder of Diana Burch. (Pen. Code, § 187, subd. (a).)1 The murder occurred

around April 10, 1989, over 20 years before trial. Defendant was sentenced to 25 years

to life in prison.

        Defendant principally claims that the court violated his federal due process rights

and section 1369 when, on March 13, 2009, the court did not immediately conduct a

hearing on defendant’s competency to stand trial, even though it had just received the

report of Randall Norris, Ph.D., a court-appointed psychologist, that defendant was

incompetent to stand trial. Rather than immediately conduct the hearing, the court

granted the prosecution’s request to appoint another psychologist, Steven Jenkins, Ph.D.,

to assess defendant. After Dr. Jenkins reported that defendant was competent, the court

appointed a third expert, Kenneth Fischer, Ph.D., to assess defendant. After Dr. Fischer

reported that defendant was competent, the court conducted the competency hearing and

the jury found defendant competent. Defendant was later tried and found guilty of the

murder. We find no due process or statutory violation in the court’s refusal to conduct

the competency hearing until after Drs. Jenkins and Fischer evaluated defendant.

(§ 1369, subds. (a), (c); see Baqleh v. Superior Court (2002) 100 Cal.App.4th 478, 489-

490.)



                                                  
            1 All further statutory references are to the Penal Code unless otherwise indicated.


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      Defendant further claims, and the People agree, that defendant’s presentence

custody credits were improperly calculated, and that defendant should have been awarded

3,243 total credits rather than 2,901 total credits. We agree and modify the judgment to

award defendant the additional presentence custody credits. In all other respects, we

affirm the judgment.

                       II. FACTS AND PROCEDURAL HISTORY

A. The Murder of Diana Burch

      On April 11, 1989, the body of 19-year-old Diana Burch was found in a green

duffel bag at a turnout along Highway 330. Defendant’s initials “DJ” were on the duffel

bag, and his DNA matched semen taken from the victim’s vagina and skin found

underneath the victim’s fingernails. Defendant’s DNA was also consistent with DNA

found on the duffel bag and on an electrical cord around the victim’s neck. During a

January 2006 police interview, defendant admitted that he killed a person who offered

him sex in exchange for drugs, around 17 years earlier. In June 2006, defendant was

charged with the murder of Burch.

B. Proceedings Concerning Defendant’s Competency to Stand Trial

      On February 28, 2007, defense counsel (Wright) told the court that he doubted

defendant’s competency to stand trial. The court then suspended the criminal

proceedings and appointed a mental health professional, Abraham Argun, Ph.D., to

evaluate defendant. On April 3, 2007, the court adopted Dr. Argun’s written opinion that

defendant was competent to stand trial and reinstated the criminal proceedings.


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       On September 24, 2007, defense counsel (Drake) declared a new doubt as to

defendant’s competency to stand trial. Members of defendant’s family were in court and,

according to defense counsel, indicated that defendant had “a long history of mental

health issues.” The court again suspended the proceedings and appointed another mental

health professional, Robert Postman, Ph.D., to evaluate defendant. On October 23, 2007,

after reviewing Dr. Postman’s written opinion that defendant was not competent to stand

trial and required psychotropic medications to be restored to competency, the court

declared defendant incompetent, and the criminal proceedings remained suspended.

       On November 16, 2007, the court ordered that defendant be committed to Patton

State Hospital (PSH) until his mental competence was restored (with a maximum three-

year time of commitment) and that PSH administer antipsychotic (psychotropic)

medication, involuntarily if necessary. On February 22, 2008, after reviewing a PSH

progress report, the court ordered that defendant be retained and treated at PSH. On July

7, 2008, after reviewing PSH reports and a certificate of mental competence, the court

found that defendant’s competency had been restored and reinstated the criminal

proceedings.2

       On December 9, 2008, the court proceeded with the preliminary examination and

bound defendant over on the murder charge.




                                                  
            2 Defendant expressly waived his right to confront witnesses on the PSH progress
report, and defense counsel joined in the waiver.

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       On December 16, 2008, defendant entered pleas of not guilty and not guilty by

reason of insanity on the murder charge, and the court appointed two doctors, Jungyeol

Oh, Ph.D. and Michael Perrotti, Ph.D., to evaluate defendant’s sanity at the time of the

offense. (§§ 1368, 1026.) In his report, Dr. Oh determined that defendant required

involuntary antipsychotic medications, and stated that defendant was probably sane at the

time of the offense, but it was not possible to render a more concrete analysis of his

sanity because he refused to be more forthcoming. Dr. Perrotti also concluded that it was

not possible to determine defendant’s sanity at the time of the offense. Dr. Perrotti noted

that defendant’s thoughts were disorganized and his ability to reason was so impaired that

he would be unable to testify on his own behalf.

       On February 20, 2009, after reviewing the reports of Drs. Oh and Perrotti, defense

counsel and the court declared doubts as to defendant’s competency, and the court again

suspended criminal proceedings. The court then appointed a new mental health

professional, Dr. Norris, to evaluate defendant. (§ 1368.)

       On March 13, 2009, after reviewing Dr. Norris’s report that defendant was

incompetent to stand trial and required psychiatric hospitalization, the court kept criminal

proceedings in suspension and, after granting the People’s request for “a second doctor

evaluation,” appointed another doctor—Dr. Jenkins—to evaluate defendant. The court

rejected defense counsel’s request to adopt Dr. Norris’s evaluation and recommit

defendant to PSH. The prosecutor asked that the second evaluation be conducted because

defendant had already been committed to PSH where his competency had been restored.


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       On April 3, 2009, after reviewing Dr. Jenkins’s report that defendant was

competent to stand trial and noting that the reports of Drs. Norris and Jenkins reached

“opposing conclusions” concerning defendant’s competency, the court appointed a third

mental health professional, Dr. Fischer, to evaluate defendant. Like Dr. Jenkins, Dr.

Fischer concluded that defendant was competent to stand trial. On May 14, 2009,

defense counsel told the court he was unwilling to stipulate to Dr. Fischer’s report and

demanded a jury trial on defendant’s competency. The court initially set the jury trial on

July 13, 2009.

       Following several continuances, the jury trial on defendant’s competency was held

on January 26 to 28, 2010. After hearing testimony from several health professionals,

including Drs. Norris, Jenkins, and Fischer, the jury determined that defendant was

competent to stand trial.

                                    III. DISCUSSION

       Defendant claims that the court violated his federal due process rights and state

law (§ 1367 et seq.) in refusing to immediately try the issue of his competency to stand

trial, when, on March 13, 2009, the court received the written report of Dr. Norris that

defendant was incompetent to stand trial. We find this claim utterly without merit.

A. Applicable Law

       Federal due process principles and state statutory law prohibit the state from trying

or convicting a criminal defendant while he is mentally incompetent. (Drope v. Missouri

(1975) 420 U.S. 162, 181; People v. Rogers (2006) 39 Cal.4th 826, 846-847.) A


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defendant is incompetent to stand trial if he lacks a “‘“sufficient present ability to consult

with his lawyer with a reasonable degree of rational understanding”’” and “‘“a rational as

well as a factual understanding of the proceedings against him.”’ [Citations.]” (People v.

Rogers, supra, at pp. 846-847; § 1367.)3

       “[A]n accused has a constitutional right to a hearing on present sanity if he comes

forward with substantial evidence that he is incapable, because of mental illness, of

understanding the nature of the proceedings against him or of assisting in his defense.

Once such substantial evidence appears, a doubt as to the sanity of the accused exists, no

matter how persuasive other evidence—testimony of prosecution witnesses or the court’s

own observations of the accused—may be to the contrary.” (People v. Pennington

(1967) 66 Cal.2d 508, 518; Pate v. Robinson (1966) 383 U.S. 375, 383-386.) The

defendant has the burden of proving his incompetency by a preponderance of the

evidence. (§ 1369, subd. (f); People v. Marks (2003) 31 Cal.4th 197, 215.)

       The court’s decision whether or not to hold a competency hearing is entitled to

deference, because the court has the opportunity to observe the defendant. (People v.

Rogers, supra, 39 Cal.4th at p. 847.) “The failure to declare a doubt and conclude a

hearing when there is substantial evidence of incompetency, however, requires reversal

of the judgment of conviction.” (Ibid.; Drope v. Missouri, supra, 420 U.S. at p. 181.)
                                                  
            3 Section 1367, subdivision (a), provides: “A person cannot be tried or adjudged
to punishment while that person is mentally incompetent. A defendant is mentally
incompetent . . . 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.”

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       California’s procedure for determining a defendant’s competence to stand trial is a

creature of statute. (See §§ 1368, 1369.) As pertinent, section 1369 states: “A trial by

court or jury of the question of mental competence shall proceed in the following order:

[¶] (a) The court shall appoint a psychiatrist or licensed psychologist, and any other

expert the court may deem appropriate, to examine the defendant. In any case where the

defendant or the defendant’s counsel informs the court that the defendant is not seeking a

finding of mental incompetence, the court shall appoint two psychiatrists, licensed

psychologists, or a combination thereof. One of the psychiatrists or licensed

psychologists may be named by the defense and one may be named by the

prosecution. . . .” (Italics added.)

B. Analysis

       Defendant maintains that the trial court violated his federal due process rights and

state law when, on March 13, 2009, and after reviewing Dr. Norris’s March 9, 2009,

report that he was incompetent to stand trial, the court refused to immediately conduct a

jury trial to determine his competency and instead appointed two more experts, Drs.

Jenkins and Fischer, to assess his competency.

       As defendant points out, Dr. Norris’s report constituted substantial evidence that

defendant was incompetent to stand trial, and was sufficient to trigger defendant’s federal

due process and state statutory right to a hearing or jury trial on his competency. (People

v. Pennington, supra, 66 Cal.2d at pp. 518-519.) But this does not mean that the court

violated defendant’s federal due process rights or state law in appointing Dr. Jenkins, or


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in later appointing Dr. Fischer, to further evaluate defendant’s competency before

conducting the jury trial on defendant’s competency.

       To the contrary, and as the People point out, defendant “received precisely what

the [C]onstitution demanded: a hearing as to his competence.” (People v. Pennington,

supra, 66 Cal.2d at p. 518.) Further, nothing in the statutory scheme governing

competency proceedings (§ 1367 et seq.) prohibited the court from appointing the

additional experts to evaluate defendant’s competency before conducting the competency

hearing, even though Dr. Norris’s report constituted substantial evidence that defendant

was not competent and triggered the court’s duty to conduct a competency hearing.

(§§ 1367-1369; People v. Pennington, supra, at p. 518.)

       As indicated, section 1369 states that “[t]he court shall appoint a psychiatrist or

licensed psychologist, and any other expert the court may deem appropriate, to examine

the defendant.” (§ 1369, subd. (a), italics added.) Ostensibly, the statute authorized the

trial court to appoint Drs. Jenkins and Fischer to examine defendant before the court

conducted the competency hearing. In addition, section 1369, subdivision (c), states that

“[t]he prosecution shall present its case regarding the issue of the defendant’s present

mental competence,” and specifically contemplates that the prosecutor may present

expert testimony of defendant’s competency. (See Baqleh v. Superior Court, supra, 100

Cal.App.4th at pp. 489-490 [§ 1369 authorizes the court to order a defendant to submit to

mental competency examination by an expert retained by the prosecution].)




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C. Additional Presentence Custody Credits

       Defendant claims, and the People agree, that defendant’s presentence custody

credits were erroneously calculated, and that defendant is entitled to additional

presentence custody credits. We agree.

       As the parties explain, defendant was correctly awarded 1,935 days of actual

custody credits and should have been awarded 1,308 conduct credits, rather than 966

conduct credits, for total credits of 3,243 days, rather than total credits of 2,901 days.

Defendant was taken into custody on August 23, 2006. At that time and until January 25,

2010, section 4019 specified that a defendant would accrue two days of conduct credit for

every four days in local custody. (People v. Brown (2012) 54 Cal.4th 314, 318.)

Effective January 25, 2010, section 4019 was amended to provide for two days of

conduct credit for every two days in local custody. (People v. Brown, supra, at p. 318.)

Thus, a defendant in continuous custody before and after January 25, 2010, accrued

conduct credits at two different rates. (Id. at p. 322.)

       Defendant therefore earned 1,251 actual credits and 624 conduct credits from

August 23, 2006, through January 25, 2010. After January 25, 2010, he earned 684

actual days credit and 684 days conduct credits. He should have been awarded total

credits of 3,243 days, not 2,901 days, or 342 additional conduct credits.

                                     IV. DISPOSITION

       The judgment is modified to award defendant 3,243 total days of presentence

custody credits, consisting of 1,935 actual days plus 1,308 conduct days. The matter is


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remanded with directions to amend defendant’s abstract of judgment to reflect this

modification, and to forward a copy of the amended abstract to the Department of

Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

 
                                                               KING
                                                                                     J.


We concur:

RAMIREZ
                       P. J.

MILLER
                          J.




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