People v. Gonzales

34 Cal.App.5th 1081

246 Cal.Rptr.3d 843

The PEOPLE, Plaintiff and Respondent,

v.Ruben Matthew GONZALES, Defendant and Appellant.

2d Crim. No. B289385

Court of Appeal, Second District, Division 6, California.

Filed May 2, 2019

Mark D. Lenenberg, under appointment by the Court of Appeal for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Ryan M. Smith, Deputy Attorney General, for Plaintiff and Respondent.

YEGAN, Acting P. J.

A person charged with crime may not stand trial if he is mentally incompetent. Once defense counsel declares a doubt as to competence, it may not be withdrawn. The issue can only be resolved upon a trial court finding of competence vel non.

Ruben Matthew Gonzales appeals his conviction by jury of first degree murder with personal use of a deadly weapon. (Count 1; Pen. Code, §§ 187, subd. (a), 189, 12022, subd. (b)(1).)¹ He was sentenced to state prison for an aggregate term of 33 years and eight months to life.

He contends that his due process rights were violated because the trial court failed to conduct a competency hearing after defense counsel declared a doubt as to appellant's competency and the proceedings were suspended pursuant to section 1368. We conditionally reverse the judgment of conviction and remand with directions to determine whether a retrospective competency hearing is feasible and, if so, to conduct a competency hearing. ( People v. Ary (2011) 51 Cal.4th 510, 515, fn. 1, 120 Cal.Rptr.3d 431, 246 P.3d 322 ( Ary ); People v. Robinson (2007) 151 Cal.App.4th 606, 619, 60 Cal.Rptr.3d 102 ( Robinson ).)

Facts

On the morning of July 8, 2014, the victim, Emeterio Gonzalez (Tio) hosted a World Cup soccer game party at his apartment with Tracy Siquiedo (Tracy), Phillip Williams (Phillip), and Tio's nephew, Mario Gonzalez (Mario). Tio was 61 years old and disabled. He lived in an apartment complex for the elderly and disabled.

During the soccer game, Tracy and Phillip left to buy beer. When they returned, they saw appellant in Tio's apartment. Tio had met appellant a couple of weeks earlier. Tio said that he was a nice guy and "cool."

Appellant became angry and confrontational when Phillip touched appellant's backpack while cleaning. Phillip felt uncomfortable and left the apartment at 9:00 a.m. A few minutes later, appellant told Tracy that they had to go buy Tio some food. As Tracy prepared to leave, appellant showed her a large knife under his shirt. Appellant went over to Tio who was lying on a bed and appeared to hug him. Instead he fatally stabbed Tio in the neck.

Tracy ran outside and called 911. In a recorded call, Tracy said she just saw a man she barely knew stab Tio with a knife. Tracy said the man was Hispanic, 28 to 29 years old, clean-shaven, and wearing a white T-shirt and long blue shorts.

After the police arrived, Tracy was shown a surveillance video and identified appellant leaving the apartment at 9:16 a.m. Appellant had changed clothing and then wore brown khaki pants, a dark sweatshirt, and sunglasses. Appellant used the stairs to avoid the other surveillance cameras.

Mario told the police that appellant was angry and aggressive. He saw appellant go into the bathroom. Then he saw appellant come out of the bathroom, quickly "scuffle" with Tio on the bed, and leave the apartment, trying to conceal a six to eight-inch knife under his clothing. Mario chased after appellant but returned when Tio screamed, "Nephew, help me!" Tio was holding his neck. There was blood on his collar. Mario, like Tracy, identified appellant in a six-pack photo line-up.

The murder weapon was never found but appellant's white T-shirt and blue shorts were found inside a purple bucket in Tio's apartment. Appellant's blood and DNA were on the clothes. Tio's blood was on the side of the bucket.

Failure to Conduct Competency Hearing

Appellant contends the trial court erred in not conducting a competency hearing after it suspended proceedings pursuant to section 1368. The day of the preliminary hearing, appellant's trial attorney declared a doubt as to appellant's competency pursuant to section 1368. The trial court suspended the criminal proceedings, appointed a doctor to examine appellant and prepare a section 1368 report, and set the matter for a competency hearing. The competency hearing was continued 14 times from October 16, 2014 to November 9, 2015. The prosecution offered to stipulate to the contents of Doctor Ronald Thurston's report and waived jury trial. Defense counsel, however, refused to agree and the competency hearing was continued to November 17, 2015 for jury trial.

On the day set for jury trial as to competency, appellant's trial attorney stated: "Matter comes on in a status where criminal proceedings have been suspended after a doubt declared pursuant to 1368. [¶] That doubt was declared by Defense initially, and at this point in time, counsel has agreed that – with the Court's permission – what I would like to do is withdraw that declaration of doubt and simply reinstate the criminal proceedings without prejudice to that being raised at any later date."

The trial court asked: "You are just withdrawing that? I don't need to make a finding?

Defense counsel responded "That's correct." (Italics added.)²

After the prosecutor agreed to the procedure, the trial court ordered that "[c]riminal proceedings are now reinstated." The case proceeded to preliminary hearing and then jury trial.

Appellant correctly contends that the trial court was without jurisdiction to proceed to trial without first finding that appellant was competent to stand trial. (See People v. Pennington (1967) 66 Cal.2d 508, 521, 58 Cal.Rptr. 374, 426 P.2d 942.) This is so because the trial court's "authority is constitutionally and statutorily restricted to holding a competency hearing before proceeding with any other matters. When the court fails to discharge this obligation, the resultant denial of due process is ‘so fundamental and persuasive that [it] require[s] reversal without regard to the facts or circumstances of the particular case. [Citations.]’ [Citations.]" ( People v. Superior Court (Marks ) (1991) 1 Cal.4th 56, 70, 2 Cal.Rptr.2d 389, 820 P.2d 613.)

Section 1368 provides in pertinent part: "If during the pendency of an action and prior to judgment, ... a doubt arises in the mind of the judge as to the mental competence of the defendant , he or she shall state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent. ... [¶] If counsel informs the court that he or she believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendant's mental competence is to be determined in a hearing which is held pursuant to Sections 1368.1 and 1369.... [¶] Except as provided in Section 1368.1, when an order for a hearing into the present mental competence of the defendant has been issued, all proceedings in the criminal prosecution shall be suspended until the question of the present mental competence of the defendant has been determined." (Italics added.)

Relying on People v. Johnson (1991) 235 Cal.App.3d 1157, 1 Cal.Rptr.2d 252 ( Johnson ), the respondent argues that the trial court never expressed a doubt as to appellant's competency. In Johnson , the trial court granted defense counsel's section 1368 request, suspended proceedings, and appointed two doctors to examine defendant. ( Id . at p. 1160, 1 Cal.Rptr.2d 252.) After the doctors reported that defendant was competent to stand trial, the trial court granted counsel's motion to withdraw the section 1368 request. Defendant entered a change of plea and was sentenced to state prison. ( Id . at pp. 1160-1161, 1 Cal.Rptr.2d 252.) On appeal, the Johnson court rejected the argument that the trial court lacked jurisdiction to sentence defendant. "At no time in these proceedings did the trial court ever express doubt about defendant's competency; nor was there any evidence presented that defendant was incompetent. Thus the trial court did not abuse its discretion in granting defendant's motion to withdraw her request for a competency hearing. [Citation.]" ( Id . at p. 1166, 1 Cal.Rptr.2d 252.)

Here, the trial court did not expressly declare a doubt about appellant's competency. But it impliedly did so by suspending the criminal proceedings.

When it set the matter for a section 1368 competency hearing, the prosecutor asked about a time waiver for the preliminary hearing. The trial court responded that no time waiver was required because "we suspended the proceedings when a doubt was declared."

The initial order setting a competency hearing was followed by 14 continuances of the hearing. This is tantamount to a finding that the trial court declared a doubt as to appellant's competency. Johnson is distinguishable because, in that case, defense counsel never represented to the court that defendant may be incompetent and the trial court "consistently declined to set a formal hearing on competency until further evidence was presented...." ( Johnson , supra , 235 Cal.App.3d at p. 1166, 1 Cal.Rptr.2d 252.)

In People v. Marks (1988) 45 Cal.3d 1335, 248 Cal.Rptr. 874, 756 P.2d 260 ( Marks ) our Supreme Court held that a competency hearing must be conducted when the trial court relies on defense counsel's representation that there is a doubt as to defendant's competency. ( Id . at p. 1344, 248 Cal.Rptr. 874, 756 P.2d 260.) Respondent argues that the trial court merely acceded to defense counsel's request to suspend the proceedings. But that would elevate form over substance where the trial court orders a competency hearing, continues the competency hearing more than ten times, and sets the competency hearing for jury trial. Respondent's "argument, if followed, would require us to ‘second...