APPEAL from a judgment of the Superior Court of Los Angeles County, Drew E. Edwards, Judge. Affirmed as modified. (Los Angeles County Super. Ct. No. BA293144).
The opinion of the court was delivered by: Turner, P. J.
CERTIFIED FOR PUBLICATION
Defendant was committed to the state hospital pursuant to Penal Code*fn1 section 1370, subdivision (a)(1)(B). On May 21, 2007, two psychiatrists, a psychologist, and a program assistant at Patton State Hospital signed a report prepared pursuant to section 1370, subdivision (b)(1). The report recommended defendant be returned to superior court as he was competent to stand. However, it was not until more than two months later on July 27, 2007, pursuant to section 1372, subdivision (a)(1), that the designee of the medical director at Patton State Hospital certified defendant was competent to stand trial. Normally, an accused is not entitled to section 4019 presentence conduct credits for time spent in the state mental hospital against a subsequent sentence. This is because the period of confinement while the accused is hospitalized is not considered punitive. Here, we discuss when defendant became entitled to conduct credits-on May 21, 2007 when the hospital staff unanimously reported he was competent to stand trial or later on July 27, 2007, when the section 1372, subdivision (a)(1) medical certification was mailed to the trial court. In light of the uncontradicted evidence defendant was competent as of May 21, 2007, he is entitled to conduct credits from that date against the sentence imposed after he was found in violation of a grant of probation.
II. PROCEDURAL BACKGROUND
On March 3, 2006, defendant pled guilty to charges of felony stalking and misdemeanor battery on a cohabitant before the Honorable Barbara R. Johnson. (§§ 646.9, subd. (a), 243, subd. (e)(1).). At that time: the imposition of sentence was suspended; defendant was placed on probation for 3 years; and he was given presentence custody credit for 170 days, including 114 days of actual custody and 56 days behavior credits. Judge Johnson imposed various orders and imposed certain probation conditions.
On October 17, 2006, the prosecution filed a motion requesting revocation of defendant‟s probation based upon his October 13, 2006 arrest. As a result of that arrest, defendant was charged in Los Angeles Superior Court case No. BA310935 with: attempted kidnapping (§§ 207, 664); criminal threats (§ 422); inflicting corporal injury on spouse or cohabitant (§ 273.5, subd. (a)); and stalking. (§ 646.9, subd. (b).) Defendant‟s probation in this case was then revoked.
On December 5, 2006, the case was now before the Honorable Ann H. Egerton who declared a doubt as to defendant‟s mental competence pursuant to section 1368, subdivision (a).*fn2 Criminal proceedings were adjourned. Dr. Jack Rothberg was appointed to examine defendant. In a report dated December 20, 2006, Dr. Rothberg stated: defendant, who was highly paranoid and suffered from delusional ideas, refused to be interviewed; the refusal to be interviewed was "based on a paranoid delusion"; and it was "medically appropriate" defendant‟s "psychotic condition be treated with medication." Dr. Rothberg concluded: "His behavior is unpredictable. He is likely to misinterpret the motives and actions of others which may result in serious harm to others or to himself. He is a danger to himself only inasmuch as his behavior is likely to be misinterpreted by others who in turn would react against him." Dr. Rothberg acknowledged though there was the potential defendant was malingering: "There is an outside possibility that Mr. Bryant may simply be malingering or simply refusing to cooperate on a non-psychotic basis. If indeed this is the case that will be discerned fairly quickly at Patton State Hospital and he could be returned to court." On February 13, 2007, Judge Egerton found defendant was not competent to stand trial. On the same date, defendant was committed to the California Department of Mental Health for placement in the state hospital pursuant to section 1370, subdivision (a)(1)(B)(i)*fn3 until such time as his mental competency was restored. Judge Egerton stated defendant‟s confinement could not exceed four years. Judge Egerton indicated defendant had previously been given credit for 170 days and was entitled to 126 additional actual days and 62 days conduct credits for a total of 358 days.
On May 21, 2007, an assessment of defendant‟s mental state was prepared pursuant to section 1370, subdivision (b)(1). Section 1370, subdivision (b)(1) requires the medical director of the state hospital report to the trial court concerning the defendant‟s progress towards mental competency.*fn4 The May 21, 2007 report consisted of: an ultimate opinion concerning defendant‟s mental competency; forensic data; a Diagnostic and Statistical Manual diagnosis; an analysis of his current physical problems and medications; a discussion of defendant‟s clinical progress and the rationale for the recommendation; a section entitled "OPINION THAT DETERMINES DISCHARGE READINESS"; an analysis of special high risk behaviors; and a recommendation that defendant be returned to superior court for trial.
Page one of the May 21, 2007 report states its ultimate opinion concerning defendant‟s competency is as follows: "We recommend that the above-named individual be returned to court as competent to stand trial pursuant PC 1372. We have considered the possible recommendation of PC 1372(e) and do not believe that recommendation is indicated at this time." At conclusion of the report to Judge Egerton, the exact same words appear under the heading "RECOMMENDATIONS."
The May 21, 2007 report then set forth a comprehensive analysis of defendant‟s mental and physical condition. After reviewing the charges, the report, with reference to the Diagnostic and Statistical Manual, diagnosed defendant as suffering from alcohol and cannabis dependence in a controlled environment. The report states, "There is no evidence to support any diagnosis involving psychosis, a mood disorder, or any other Axis I or Axis II disorder." In the clinical progress and rationale for the recommendation portions of the report, it is recommended defendant be returned to court because he was competent to stand trial. The staff indicated: upon admission to the hospital, defendant received a "comprehensive, multidisciplinary assessment" designed to render a diagnosis and design a treatment plan; upon admission, there were no symptoms of psychosis present; there was no evidence of any "hallucinations, delusions, thought disorder or mood disorder"; nor was there any evidence during any part of his hospitalization of any "impairment in attention, concentration, memory or executive functioning"; and he did not trust the court although the level of distrust was "not beyond that observed by many non-psychotic defendants" or those who are not mentally ill. At first, defendant did not want to speak with the "alienist." But in refusing to do so, defendant did not know he would be found to be incompetent. Defendant was dissatisfied with the services provided by defense counsel. But according to the May 21, 2007 report, there was no evidence of paranoia regarding defense counsel or Judge Egerton.
Defendant was consistently pleasant and cooperative with staff and presented no behavior problems. None of the symptoms which led to the finding of defendant‟s incompetency to stand trial were observed by the hospital staff. Defendant‟s substance abuse was being controlled through incarceration and hospitalization. According to the May 21, 2007 report: "He now has a good understanding of the judicial process and the behavior expected of him. He is willing to behave in appropriate ways in future evaluations and legal proceedings. . . . He understands the importance in working closely with defense counsel and has agreed to do so." In the view of the hospital staff, defendant possessed the capacity to rationally cooperate with counsel. Defendant was aware of the charges and evidence against him and their role in the criminal litigation process. At another point in the May 21, 2007 report, defendant was described as having a "rational and factual understanding" of the pending judicial proceedings. The report noted defendant understands: the pending charges; what a felony charge is and, as a result, he could spend a substantial amount of time in state prison; the plea bargaining process; the difference between a bench and jury trial; "the roles of the judge, prosecuting attorney and defense attorney"; and the behavior expected of him in the courtroom. The staff further believed defendant had the ability to behave appropriately.
In terms of high risk behaviors, the May 21, 2007 report stated defendant denied having any suicidal or self-harm ideations. While at Patton State Hospital, defendant had engaged in no suicidal or self-harm behaviors and had no history of ever having done so. Although the pending charges involved danger to others, while at the hospital, defendant had not engaged in any dangerous behaviors. No special precautions were warranted because defendant presented no danger to himself or others. Moreover, defendant was receiving no special medications and there was no conditions which warranted him receiving any. When the May 21, 2007 report was sent to Judge Egerton, she was sitting by assignment in Division Eight of this appellate district.
On July 27, 2007, Dr. Gnanamuthu executed a certification of mental competence pursuant to section 1372, subdivision (a)(1).*fn5 Dr. Gnanamuthu‟s certification stated in part: "This defendant has been under treatment and observation since the date of admission to the hospital. It is the consensus of the Clinical Staff and the Medical Director of the hospital that the defendant is now able to understand the nature of the charge . . . and can cooperate with the attorney in [the] subject‟s defense. [¶] In accordance with Section 1372 . . ., I hereby certify that said defendant is now mentally competent. [¶] Please authorize a hearing in this matter. A speedy trial is important for maintenance of trial competency. [¶] . . . The Court is respectfully requested to notify the Sheriff to return the defendant to your ...