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The People v. Richard Gordon Torrey Iii


January 20, 2011


Super. Ct. No. CRF086032

The opinion of the court was delivered by: Butz ,j.

P. v. Torrey CA3


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Richard Gordon Torrey III was charged with assault with intent to commit lewd and lascivious acts upon a child during the commission of a first degree burglary (Pen. Code, § 220, subd. (b)),*fn1 first degree burglary (§ 459), three counts of lewd or lascivious acts upon a child who is 14 or 15 years old (§ 288, subd. (c)(1)), and sexual battery (§ 243.4, subd. (a)). He pleaded no contest to first degree burglary and sexual battery. The court sentenced defendant to a stipulated term of seven years in state prison.

Defendant obtained a certificate of probable cause. (§ 1237.5.) On appeal, he contends the trial court erred in failing to hold a competency hearing, he received ineffective assistance of conflict counsel, and the court was required to hold a Marsden*fn2 hearing. We shall affirm.


On August 22, 2008, around 3:00 a.m., a 15-year-old girl was sleeping in her family's apartment. She heard someone calling her name and awoke to find defendant standing naked next to her bed. Defendant began to kiss and suck on her neck; she tried to resist by swatting at him and lying on her stomach. He then attempted to disrobe the girl and sexually assault her. After the girl shrugged him off, defendant picked up his clothes and left.

Defendant told the police he had been drinking that day, but had not been drunk. He admitted going to the residence, kissing the girl on the cheek, straddling her while naked, and putting his penis on her clothed buttocks and vagina, saying, "I want you, I need you." Defendant stopped after he realized there was not going to be any intercourse. He admitted being attracted to girls as young as 14.

On March 25, 2009, defendant entered into a plea agreement in which he pleaded no contest to first degree burglary and felony sexual battery, with the remaining charges to be dismissed, and a stipulated sentence of seven years in prison.

On April 20, 2009, the court received a letter from defendant, dated April 13, 2009, in which he denied committing the crimes and contended he had been pressured to enter the plea. According to defendant, his attorney told him he had no chance of winning at trial, was not going to subpoena any of his work or mental health records, and was not going to call any of his friends as witnesses.

Defendant also claimed he suffered from depression and bipolar disorder; he had been seeing a therapist as well as a psychiatrist and had been prescribed medication. Defendant stopped taking his medication, which made him more irrational and depressed. This was also the reason for his "5150"*fn3 and his two-month medical leave from work. Defendant thought his mental health should be addressed at sentencing.

On April 23, 2009, the court appointed conflict counsel for defendant to make a motion to withdraw his no contest plea. The court received a letter from defendant's former mother-in-law on May 8, 2009. The letter asserted that a psychiatrist had been treating defendant for bipolar disorder. He was not being treated for his illness in jail, and defendant's letters to her exhibited severe depression. Defendant wanted a psychiatric evaluation or contact with his treating psychiatrist.

At the hearing on defendant's motion to withdraw his plea, conflict counsel called defendant's trial counsel, who testified that defendant understood the People's offer, and had asked whether it would make him eligible for commitment under the Sexually Violent Predator Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.) Counsel told defendant it would not, but conviction on some of the other charges would make him eligible under the SVPA.

Trial counsel testified that she discussed the plea with defendant on four separate occasions. After telling counsel he would accept the offer, defendant called back to ask about fines in an unrelated case. He initially expressed reservations about the offer because it would jeopardize his being a father for some time, and would probably bar him from his current employment as a social worker for disabled adults. Counsel thought these were normal concerns for a client getting ready to enter state prison.

Asked whether she pressured defendant into accepting the plea, trial counsel said she told defendant the evidence against him was strong, and he faced a possible life sentence if convicted on the charged offenses. She told defendant the offer would subject him to one strike, and would require him to register as a sex offender. In light of the potential life sentence and the strength of the People's case, counsel told defendant the offer was in his best interest and he should seriously consider it.

Trial counsel never told defendant he had a "zero percent" chance of winning at trial. Regarding subpoenaing defendant's work and mental health records, she had learned there were allegations that defendant had bragged about having sex with other underage girls. The prosecutor told defense counsel the People would not seek to admit this evidence, but it would become relevant if defendant presented his own character evidence.

The court denied defendant's motion and discharged conflict counsel. Defendant was represented by his original counsel when the court imposed the stipulated seven-year sentence.


I. Competence to Stand Trial

Defendant contends there was substantial evidence before the trial court to indicate he was not competent to stand trial and, therefore, the trial court erred by not declaring a doubt as to his competence pursuant to section 1368, subdivision (a). He contends we must reverse the judgment because the trial court's failure to hold a competency hearing constituted a denial of due process as a matter of law. We disagree.

"A defendant is mentally incompetent . . . if, as a result of mental disorder . . . , 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." (§ 1367, subd. (a); Dusky v. United States (1960) 362 U.S. 402 [4 L.Ed.2d 824, 825] (per curiam).)

State law and federal due process bar the trial or conviction of a mentally incompetent defendant. (People v. Rogers (2006) 39 Cal.4th 826, 846 (Rogers).) Both "require a trial judge to suspend trial proceedings and conduct a competency hearing whenever the court is presented with substantial evidence of incompetence, that is, evidence that raises a reasonable or bona fide doubt concerning the defendant's competence to stand trial. [Citations.] The court's duty to conduct a competency hearing may arise at any time prior to judgment. [Citation.] Evidence of incompetence may emanate from several sources, including the defendant's demeanor, irrational behavior, and prior mental evaluations.

[Citations.] But to be entitled to a competency hearing, 'a defendant must exhibit more than . . . a pre-existing psychiatric condition that has little bearing on the question . . . whether the defendant can assist his defense counsel.'" (Id. at p. 847.)

"'A trial court is required to conduct a competence hearing, sua sponte if necessary, whenever there is substantial evidence of mental incompetence. [Citations.] Substantial evidence for these purposes is evidence that raises a reasonable doubt on the issue. [Citation.]'" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1110.) "[T]his doubt which triggers the obligation of the trial judge to order a hearing on present sanity is not a subjective one but rather a doubt to be determined objectively from the record." (People v. Sundberg (1981) 124 Cal.App.3d 944, 955-956.)

Defendant's contention relies on his letter to the trial court, his former mother-in-law's unsworn statement, and a single, handwritten line in the probation report indicating that defendant has bipolar disorder. The former mother-in-law's letter was unsworn hearsay. The line in the probation report contained no analysis, and appears to have been added after the report was written. The court found that defendant's claim that he had been pressured into accepting the People's offer was not credible. Defendant did not present any documents or witnesses supporting his claims that he had been treated for bipolar disorder or had been committed pursuant to Welfare and Institutions Code section 5150, and the court did not have to credit those allegations.

Even if the court were to accept defendant's allegations, they do not raise substantial doubt regarding his competence. "[T]he mere presence of a mental illness does not mean [defendant] was unable to understand the proceedings or assist in his own defense." (People v. Smith (2003) 110 Cal.App.4th 492, 502.) Trial counsel's testimony shows defendant understood the nature of the proceedings against him. Defendant queried about possible exposure under the SVPA, asked whether the plea would influence fines in an unrelated case, and was aware that the plea would keep him from working in his current occupation. Counsel testified that defendant understood the offer, and there is nothing in the record indicating defendant did not understand the nature or consequences of the plea, or the proceedings against him.

Defendant also suggested possible witnesses and other evidence on his behalf. While defendant's suggestions were not fruitful, they nonetheless portray a defendant who could assist in his own defense.

Neither the trial court, trial counsel, nor conflict counsel suggested that defendant was incompetent to stand trial or enter his plea. "A trial court's decision whether or not to hold a competence hearing is entitled to deference, because the court has the opportunity to observe the defendant during trial." (Rogers, supra, 39 Cal.4th at p. 847.) Likewise, "[a]lthough trial counsel's failure to seek a competency hearing is not determinative [citation], it is significant because trial counsel interacts with the defendant on a daily basis and is in the best position to evaluate whether the defendant is able to participate meaningfully in the proceedings [citation]." (Id. at p. 848.)

The authority cited by defendant does not support a different conclusion. Moran v. Godinez (9th Cir. 1992) 972 F.2d 263 was overruled by the Supreme Court for requiring a higher standard of competency to plead guilty than to stand trial. (Godinez v. Moran (1993) 509 U.S. 389, 391, 402 [125 L.Ed.2d 321, 327, 334].) In Miles v. Stainer (9th Cir. 1997) 108 F.3d 1109, the trial court was presented with three doctors' reports indicating defendant was taking large doses of antipsychotic drugs, and had lost and regained competency several times. (Id. at p. 1112.) In McMurtrey v. Ryan (9th Cir. 2008) 539 F.3d 1112, defense counsel presented the trial court with a patient order sheet for the defendant indicating he took Valium, along with three other powerful antianxiety medications. (Id. at p. 1125 & fns. 14, 15.) The defendant had been treated with Thorazine, and presented expert evidence at trial that he suffered from a major depressive disorder that prevented him from controlling his emotions. (Id. at pp. 1122-1123.)

We are not bound to follow Miles or McMurtrey. (People v. Camacho (2000) 23 Cal.4th 824, 830, fn. 1.) They are also readily distinguished. In both cases the trial court was presented with expert evidence that the defendant had a severe mental health disorder, along with examples of how it limited his competency to stand trial. By contrast, defendant here made the barest allegation that he had a mental illness, and his behavior provided compelling evidence of his competency to stand trial.

Defendant gave every appearance of being competent to defend himself. No party who observed him ever raised a single doubt as to his competency. Defendant's scant evidence of a mental illness did not require the trial court to order a competency hearing.

II. Ineffective Assistance of Counsel

Defendant argues conflict counsel was ineffective for failing to investigate his mental health issues and not arguing in support of the motion to withdraw his plea. Not so.

To show ineffective assistance of counsel, defendant must demonstrate that counsel's representation was deficient in falling below an objective standard of reasonableness under prevailing professional norms, and there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. (People v. Hines (1997) 15 Cal.4th 997, 1048.) "Courts must in general exercise deferential scrutiny in reviewing such claims; the reasonableness of defense counsel's conduct must be assessed 'under the circumstances as they stood' at the time of counsel's acts or omissions; 'second-guessing' is to be avoided." (People v. Mincey (1992) 2 Cal.4th 408, 449.)

In order to demonstrate counsel failed to investigate the case adequately, defendant must produce the evidence that further investigation would have shown. A claim unsupported by evidence is insufficient to determine whether it is reasonably probable that defendant would have obtained a more favorable result with adequate investigation. (See People v. McDermott (2002) 28 Cal.4th 946, 992; In re Marquez (1992) 1 Cal.4th 584, 603-609; In re Fields (1990) 51 Cal.3d 1063, 1071 (Fields).) And, where the record on appeal fails to reflect why counsel acted or failed to act, we must affirm the judgment unless there could be no satisfactory explanation. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)

As we have already discussed, there was minimal evidence that defendant suffered from a mental illness, and compelling evidence that he was competent to stand trial. Nothing in the record indicates conflict counsel could have found evidence defendant was incompetent; appellate counsel's contention to the contrary is pure speculation. Thus, defendant's claim is insufficient. (Fields, supra, 51 Cal.3d at p. 1071.)

Good cause to withdraw a plea exists when a defendant has entered a plea as a result of mistake, ignorance, or some other factor overcoming the defendant's exercise of free judgment. (People v. Cruz (1974) 12 Cal.3d 562, 566; People v. Castaneda (1995) 37 Cal.App.4th 1612, 1617.) "However, '[a] plea may not be withdrawn simply because the defendant has changed his mind.'" (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.)

The record shows defendant was not pressured into his plea, and he understood the consequences of the agreement. Interviewed at jail shortly after entering the plea, defendant said he believed the plea was fair. "Counsel's failure to make a futile or unmeritorious motion or request is not ineffective assistance." (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 836.)

III. No Marsden Hearing

Defendant claims his April 13, 2009 letter to the court was sufficient to trigger the court's duty to conduct a Marsden hearing, and the court's failure to do so was prejudicial error.

Defendant's letter professed his innocence and dissatisfaction with the plea. The letter also set forth reasons to withdraw the plea, and mitigating facts for the court to consider at sentencing. The letter did not ask for counsel to be discharged, or for the appointment of new counsel.

While a defendant is not required to make a formal motion to substitute appointed counsel, there must be some clear indication that substitution is the desired remedy. (People v. Dickey (2005) 35 Cal.4th 884, 920.) Defendant never suggested he wanted a substitution of appointed counsel based on ineffective representation. Expressions of only retrospective dissatisfaction with the adequacy of trial counsel's representation, without any indication of a desire for new representation, does not trigger the obligation to hold a Marsden hearing. (Id. at pp. 918-920 & fn. 12; People v. Richardson (2009) 171 Cal.App.4th 479, 485 (Richardson).)

Defendant cites People v. Eastman (2007) 146 Cal.App.4th 688, which held mere expressions of dissatisfaction with counsel trigger an obligation to hold a Marsden hearing, even absent an express request for substitution. (Id. at pp. 695-697, 699.) However, in Richardson, this court found Eastman unpersuasive because it did not consider the reasoning of Dickey. (Richardson, supra, 171 Cal.App.4th at p. 485.) We adhere to the conclusion in Richardson.

Since defendant never expressed a desire to replace his appointed counsel, we reject his claim of Marsden error.


The judgment is affirmed.

We concur:

HULL , Acting P.J.


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