APPEAL from the Superior Court of San Bernardino County. Ronald M. Christianson, Judge. Affirmed. (Super. Ct. No. FSB703887).
The opinion of the court was delivered by: Richli Acting P.J.
CERTIFIED FOR PUBLICATION
On October 15, 2007, defendant Johnny Lee Bell set fire to some rags, some towels, and a chair that were piled on top of his mother's car, which was parked in front her house. He also set fire to some adult diapers and other items near a back gate of the house, causing the gate to catch fire. A neighbor witnessed him setting fire to the items on the car. Defendant was arrested near the house and found to be carrying a lighter.
Prior to trial, defendant's trial counsel raised a doubt as to defendant's competency, and a jury trial on his competency was held. Defendant testified against his trial counsel's recommendation. After defendant was found competent to stand trial, he was convicted by a jury of arson of property and attempt to burn property.
Defendant makes one claim on appeal: The trial court violated his state and federal rights to due process by finding he could testify at his competency trial over his trial counsel's objection.
We find that trial counsel representing a defendant whose competency is in doubt should be in charge of the trial proceedings, including whether the defendant should testify as to his own competency. As such, the trial court erred by allowing defendant to testify over his trial counsel's objection. However, we deem such error to be harmless in this case and affirm the judgment.
II. PROCEDURAL BACKGROUND
On February 15, 2008, an amended information was filed by the San Bernardino County District Attorney's office charging defendant with arson of an inhabited structure (Pen. Code, § 451, subd. (b))*fn2 and attempt to burn (§ 455). Prior to the trial proceedings, defendant's trial counsel declared a doubt as to defendant's competency and requested an evaluation be conducted pursuant to section 1368.*fn3 Defendant was evaluated by mental health staff at the county jail. After reviewing a report based on the evaluation, the trial court expressed a doubt as to defendant's mental competency, suspended the criminal proceedings, and appointed two doctors to evaluate defendant as set forth in section 1368. The trial court appointed a third doctor after the two previously appointed doctors split in their opinion on defendant's competency.
The third doctor found defendant competent to stand trial. Defendant's counsel refused to submit on the doctors' reports, and a jury trial was held on defendant's competency. Although trial counsel objected to defendant testifying at the competency hearing, as will be discussed in more detail, post, the trial court overruled the objection, and defendant testified on his own behalf. On July 16, 2008, the jury found that defendant was competent to stand trial.
Trial on the substantive charges began on August 21, 2008, in front of a different jury panel. Defendant was found guilty of the lesser offense of arson of property (§ 451, subd. (d)) and of the attempted arson. The trial court sentenced defendant to the upper term of three years for the arson of property and a concurrent two-years term on the attempted arson.
III. COMPETENCY PROCEEDINGS
Prior to the proceedings, Dr. Joseph Simpson, a psychiatrist; Dr. Lee Guerra, a forensic psychologist; and Dr. Harvey W. Oshrin, a psychiatrist, evaluated defendant and submitted written reports to the trial court. Dr. Simpson found defendant incompetent to stand trial, and Drs. Guerra and Oshrin found him competent. Defendant's trial counsel refused to submit on the reports, and a jury trial ensued. The reports were not submitted at the competency trial.
Dr. Simpson, who had previously performed over 200 competency evaluations, testified for defendant. After evaluating defendant, he concluded defendant was not competent to stand trial due to a diagnosis of psychotic mental disorder not otherwise specified and defendant's inability to work with defense counsel in a rational manner. Dr. Simpson explained that a psychosis is a severe mental disorder characterized by hallucinations and delusions, as defined in the Diagnostic and Statistics Manual IV (DSM IV).
Dr. Simpson interviewed defendant in jail. Defendant initially was very cooperative in the interview, but he became agitated when they discussed his legal situation. Defendant would not answer basic questions and spoke in a rambling manner, commonly seen in those suffering from psychotic mental disorders. Defendant only talked to Dr. Simpson for 20 minutes and provided little background information before getting up and leaving the interview.
There was other evidence that defendant suffered from delusional behavior, including that his family stated he was taking medication for mental issues and prior medical records that defendant had been put on medication. Further, defendant's behavior since being incarcerated on the instant charges led to Dr. Simpson's diagnosis of psychosis. While in jail, defendant had clogged his toilet and allowed it to flood his cell. He then sat on the floor in the water and urine. He did this on several occasions. Defendant would not cooperate with jail staff.
Dr. Simpson reviewed the reports prepared by the two other appointed doctors in which they found defendant competent, but those reports did not change his mind. Defendant would not talk to Dr. Guerra, so his determination that defendant understood the proceedings was flawed. The other report (prepared by Dr. Oshrin) did not explain how defendant was capable of cooperating with counsel.
The fact that defendant lit adult diapers on fire and that he sat in a cell that was flooded was consistent with psychosis and not just antisocial personality disorder. Dr. Simpson agreed that defendant understood the nature of the proceedings against him; however, his mental disorder foreclosed the possibility that he could engage rationally with his trial counsel. Dr. Simpson admitted, however, that this was a close case on competency.
Defendant then testified on his own behalf. He insisted that his character had been assaulted because it was assumed that he committed the crimes in the instant case, but he was innocent. He stated he was 44 years old, was the father of four children, and had done positive things in the community. He was locked down 24 hours a day in jail and not allowed to see a medical doctor. Defendant complained about being housed with murderers and not being able to watch television. He sat in urine in his cell because he had been tasered, and the jail officials were trying to cover it up.
Defendant went to high school and paralegal school. He got into an automobile accident in 1989, which resulted in his being diagnosed with a mental illness. He denied he took any mental health medication. For the previous 25 years, he had run a nonprofit agency involved in stopping gangs and drugs in his community. Defendant had wanted to represent himself because he was innocent, and his attorney was not working with him.
Defendant indicated that he knew high-ranking officials in San Bernardino, but they had not come to his trial. The case was just a "major coverup." He indicated that, during the time he represented himself, he went to the law library and studied his case. He researched search and seizure and the basics of his case. He conducted the preliminary hearing himself. He had previously represented himself in a case and had won. He stopped talking with Dr. Simpson when the doctor told him the conversation was not confidential. Defendant would work with his trial counsel but felt that trial counsel had a different agenda. Defendant stated that he was competent to stand trial.
Defendant's mother, Dessie Walker, testified that defendant started having some mental issues around 1982. Defendant had been in mental health facilities and prescribed psychotropic medication. When he was on his medication, he acted like himself. When he was off the medication, he spent more time alone and was less cooperative.
The People called Dr. Guerra. Dr. Guerra had previously conducted approximately 200 competency evaluations. It was difficult in this case to make a determination of defendant's mental state because defendant was not cooperative. Defendant only met with him for 15 minutes; the doctor liked to have one- to two-hour interviews. Dr. Guerra had insufficient evidence to diagnose defendant with a mental disorder.
Dr. Guerra reviewed the record from the jail, Dr. Simpson's report, an interview between the district attorney and defendant's mother, and defendant's prior criminal history. Defendant's competency had not been questioned in the criminal cases that defendant was charged in prior to the instant case. His jail records showed no documentation of a mental disorder. Dr. Guerra believed that defendant might have a cognitive disorder from the prior automobile accident.
Defendant clearly understood the court process. There were no issues regarding defendant's competency during the time defendant represented himself. Defendant was initially cooperative with Dr. Guerra. Dr. Guerra believed defendant discontinued the interview with him because he did not want to talk to him, not because he was psychotic. Based on his testimony in court, Dr. Guerra strongly believed that defendant was competent to stand trial. He had no opinion on defendant's relationship with trial counsel.*fn4
IV. DEFENDANT'S RIGHT TO TESTIFY AT A SECTION 1368 COMPETENCY PROCEEDING
Defendant contends on appeal that his state and federal rights to due process were violated by the trial court allowing him to testify at his competency hearing ...