NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IRION, J.

This matter is before us on a petition for writ of mandate or prohibition filed by David Lucero challenging the trial court's decision on March 12, 2018, that it would not suspend the proceedings and appoint a mental health expert to evaluate whether Lucero is currently mentally competent to stand trial. The trial court previously found that Lucero was mentally competent to stand trial in 2016 based on a psychiatrist's evaluation performed at that time. We conclude that Lucero presented new evidence to the trial court that constituted substantial evidence he is not currently mentally competent to stand trial. Accordingly, the trial court was required, as a matter of law, to suspend the proceedings and order that a mental health expert perform an evaluation of Lucero's mental competency pursuant to Penal Code sections 1368 and 1369, and if necessary hold a hearing on Lucero's competency. We shall therefore issue a writ directing the trial court to suspend the proceedings and order an expert evaluation of Lucero's competency to stand trial.

I.

FACTUAL AND PROCEDURAL BACKGROUND

On March 15, 2010, the District Attorney filed a two-count amended complaint that charged David Leroy Lucero, Jr. with the murder of his mother in violation of Penal Code section 187, subd. (a) and unlawful taking of a vehicle in violation of Vehicle Code section 10851, subd (a).1 Lucero has entered a plea of not guilty by reason of insanity.

Lucero has a documented history of mental illness and psychiatric hospitalizations stemming from his diagnosis of Schizoaffective disorder, bipolar type. On three separate occasions during the pendency of the criminal charges, Lucero has been committed to Patton State Mental Hospital (Patton) after being found not competent to stand trial.2 Specifically, Lucero was first found to be not competent in June 2010 and sent to Patton. Lucero was certified as mentally competent in February 2011 by the Department of Mental Health, but the parties stipulated in October 2011 that Lucero had once again become incompetent, and he was sent to Patton for a second time. In January 2014, Lucero returned to court for a competency hearing, and after an expert opined that Lucero was incompetent, the court placed him under a temporary Murphy conservatorship.3 In September 2015, the Department of State Hospitals recommended Lucero be returned to court as competent to stand trial. In March 2016, Dr. Alma Carpio evaluated Lucero and concluded that he was mentally competent to stand trial. In May 2016, based on Dr. Carpio's evaluation, the trial court found Lucero mentally competent.

Nearly two years passed without a trial taking place. On March 9, 2018, which the parties describe as "the eve of trial," defense counsel raised a concern about Lucero's mental competency to stand trial and requested that the court suspend proceedings and order a mental competency evaluation to be performed on Lucero pursuant to Penal Code section 1368. The issue was considered by the trial court at a hearing on March 12, 2018.4

In support of the request for a mental competency evaluation, defense counsel presented two declarations from psychiatrist Raphael Morris, who met with and evaluated Lucero on March 8, 2018, at the request of defense counsel.

In his first declaration, dated March 8, 2018, Dr. Morris stated that Lucero was "still symptomatic with delusions, hallucinations, and thought disorder." Dr. Morris explained that during the meeting, Lucero "was distracted by some visual hallucinations. He needed redire[c]tion to focus when he started to ramble about electromagnetic waves. He remained ambivalent over whether his terrifying experiences leading up to and following the instant offense were caused by his severe and treatment resistant schizoaffective disorder or rather the product of spirituality and he wavered throughout our interview meeting. It is highly likely that he would be unable to distinguish his preferences from past fixed delusional beliefs when reviewing events with his attorneys before and during trial. In summary, these psychotic symptoms which have either reemerged or were previously underestimated, his limited insight into the severity of his illness, and his difficulty distinguishing which of his thoughts are delusions have led me to believe there is doubt regarding his competency. I would recommend a more thorough competency evaluation at this time."

In his second declaration, dated March 11, 2018, Dr. Morris stated that he had subsequently listened to audiotape recordings of telephone calls between Lucero and Lucero's father that occurred on March 4 and March 5, 2018, and he had also obtained "more data regarding defense counsel's experiences working with" Lucero. Dr. Morris stated, "Prior to hearing the tapes, I was already concerned with the defendant's competency, but after listening to the audiotape of his conversation on March 5, 2018, I am now convinced that he lacks the capacity to rationally assist in his defense at this time." After discussing several specific statements made by Lucero in the telephone calls, Dr. Morris concludes, "With his current delusions and his lack of insight into the extent of his delusional and distorted thinking, he will not be able to rationally assist in his defense."

In addition to providing Dr. Morris's declarations, defense counsel also offered his own view of Lucero's competency, explaining during the hearing that based on recent interactions with Lucero, "I do not believe he could rationally assist me in any manner that is based in reality in the defense of this case." When the trial court asked defense counsel to elaborate on what he meant when he stated that Lucero could not "`rationally assist,'" defense counsel explained:

In the course of deciding whether to order a mental competency evaluation of Lucero, the trial court listened to the telephone calls between Lucero and Lucero's father that Dr. Morris had referenced, as well as a March 8, 2018 telephone call. In the first telephone call, Lucero's father provides Lucero with information about the upcoming trial. In the second telephone call, Lucero tells his father that he has decided to plead guilty because he is tired of being in jail rather than prison, and he claims that his attorney told him that he had no chance of being sent anywhere other than prison (i.e., being sent to a psychiatric facility after being found not guilty by reason of insanity).5 In the third telephone call, Lucero and his father say a prayer, talk briefly about an upcoming court hearing, and Lucero talks about a superhero movie. Based on our own review of the telephone calls, Lucero seems to be coherent, but the telephone calls do not provide enough information for a layperson to be able to identify based on their contents whether Lucero is suffering from any sort of mental incompetency that would make him unable to stand trial.

The trial court also considered two psychological evaluations of Lucero performed in 2017. Although those evaluations were performed for the purpose of evaluating Lucero's not-guilty-by-reason-of-insanity plea, the trial court reviewed them in the event they might provide some useful information on Lucero's mental competency at the time they were performed in 2017. In addition, at the request of the People, the trial court considered a change of plea form from an aborted plea deal that Lucero signed on March 2, 2018.

After considering the evidence and the argument of counsel, the trial court ruled that it would not suspend criminal proceedings for the purpose of obtaining a mental competency evaluation of Lucero. Among other things, based on its own review of the telephone call recordings and other evidence, the trial court stated, "Let me say that every time somebody else has come into contact with the defendant, whether that be the doctors who performed the sanity tests, whether it was phone lines through the jail, or it was a change of plea form, what strikes me is that the defendant is conscious, alert, well oriented. He's oriented to time. He's oriented to place. He's oriented to the events that are at bar." The trial court also discounted the significance of Dr. Morris's opinion that Lucero would not be able to rationally assist in his defense. The trial court stated, "I'm just not impressed with the declaration[.] I'm not—. . . I don't know what the declaration actually is communicating, but what I heard [in the telephone calls] and what Dr. Morris is relating in his declaration are coming from two different worlds." As to the trial court's view of the significance of defense counsel's opinion about Lucero's competency, the trial court stated, "if you believe the defendant can't assist you, and now does not appreciate the events that are occurring in the courtroom, that he doesn't understand and is unaware of the court procedure, then I'm going to take you at your word."

The trial court stated that the applicable legal standard was whether it had a "substantial doubt" as to Lucero's competency. The trial court concluded, "I don't find that I have a substantial doubt as to the defendant's competency. I've just laid out the reasons. . . . Ultimately we'll see what happens on appeal. I mean, I realize what a novel issue this is."

On March 14, 2018, Lucero filed a petition for writ of mandate or prohibition, in which he asked us to issue an order directing the trial court "to suspend the criminal proceedings, appoint a doctor to evaluate [Lucero], and if appropriate, order a hearing regarding . . . Lucero's competency." On March 29, 2018, we issued an order to show cause, and we ordered the trial court proceedings stayed while we consider the petition.

II.

DISCUSSION

"'"Both the due process clause of the Fourteenth Amendment . . . and state law prohibit the state from trying or convicting a criminal defendant while he or she is mentally incompetent. [Citations] A defendant is incompetent to stand trial if he or she lacks a `"sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—[or lacks] . . . a rational as well as a factual understanding of the proceedings against him."'" (People v. Mai (2013) 57 Cal.4th 986, 1032 (Mai).)6 "Under both the federal Constitution and state law, the trial court must suspend criminal proceedings and conduct a competency hearing if presented with substantial evidence that the defendant is incompetent." (Id. at p. 1032.) "In this context, substantial evidence means evidence that raises a reasonable doubt about the defendant's ability to stand trial." (People v. Ramos (2004) 34 Cal.4th 494, 507.)

"`[W]hen a competency hearing has already been held and the defendant has been found competent to stand trial . . . a trial court need not suspend proceedings to conduct a second competency hearing unless it "is presented with a substantial change of circumstances or with new evidence" casting a serious doubt on the validity of that finding.'" (People v. Mendoza (2016) 62 Cal.4th 856, 884 (Mendoza).) "[A] trial court must always be alert to circumstances suggesting a change that would render the accused unable to meet the standards of competence to stand trial.'" (Id. at p. 885.)

"When defense counsel has presented substantial evidence that a defendant is incompetent to stand trial, the trial court must declare a doubt as to the defendant's competence and suspend proceedings even if the court's own observations lead it to believe the defendant is competent." (People v. Jones (1991) 53 Cal.3d 1115, 1153 (Jones), italics added.)7 The same rule applies when a defendant has previously been found to be competent but new evidence is presented. When a defendant has earlier been found to be competent to stand trial, "upon the presentation of substantial evidence showing a substantial change of circumstances or new evidence giving rise to a serious doubt about the validity of the original competency finding, regardless of the presence of conflicting evidence, the trial court must hold a subsequent competency hearing. This substantial evidence standard of proof is the same standard applied by the trial court in determining whether an original competency hearing should be held." (People v. Kaplan (2007) 149 Cal.App.4th 372, 376, italics added (Kaplan).)

"The California Supreme Court has stated the substantial evidence standard `is satisfied if at least one expert who is competent to render such an opinion, and who has had a sufficient opportunity to conduct an examination, testifies under oath with particularity that, because of mental illness, the accused is incapable of understanding the proceedings or assisting in his defense.' (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1047.) In People v. Stankewitz (1982) 32 Cal.3d 80, 93, the Supreme Court stated, `once substantial evidence in the form of a psychiatric opinion of incompetence was presented, the court was required to hold a competency hearing. . . . `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."'" (Kaplan, supra, 149 Cal.App.4th at pp. 385-386.) "If there is testimony from a qualified expert that, because of a mental disorder, a defendant truly lacks the ability to cooperate with counsel, a competency hearing is required." (People v. Lewis (2008) 43 Cal.4th 415, 526, italics added.) "The trial court's duty to conduct a full competency hearing is not relieved even when the prosecution's evidence is also substantial, is in conflict with the evidence of incompetency, and may seem more persuasive." (People v. Johnson (2018) 21 Cal.App.5th 267, 276.)

When the trial court is presented with substantial evidence of incompetence, it has no discretion to exercise, and it must, as a matter of law, initiate proceedings to determine whether the defendant is currently competent to stand trial. (Mai, supra, 57 Cal.4th at p. 1033 [trial court has discretion to decide against a competency hearing only "absent a showing of `incompetence' that is `substantial' as a matter of law"]; People v. Welch (1999) 20 Cal.4th 701, 738 ["once the accused has come forward with substantial evidence of incompetence to stand trial" the trial judge "has no discretion to exercise"].) "On review, our inquiry is focused not on the subjective opinion of the trial judge, but rather on whether there was substantial evidence raising a reasonable doubt concerning the defendant's competence to stand trial." (People v. Mickel (2016) 2 Cal.5th 181, 195.)

Therefore, the question before us is whether there was any new evidence or change of circumstance presented to the trial court constituting substantial evidence of Lucero's incompetence to stand trial. If such evidence exists, we must conclude that the trial court erred in refusing to initiate proceedings to determine Lucero's competency.

Here, the trial court was clearly presented with new evidence bearing on Lucero's mental competence to stand trial. Specifically, it had been two years since Dr. Carpio examined Lucero and determined that he was mentally competent. Much more recently, on the eve of trial, Dr. Morris met with Lucero, spoke with defense counsel and reviewed telephone call recordings. Based on that evaluation, Dr. Morris submitted a sworn declaration concluding that "[w]ith his current delusions and his lack of insight into the extent of his delusional and distorted thinking, he will not be able to rationally assist in his defense." As we have explained, if a psychiatrist such as Dr. Morris has had an opportunity to evaluate the defendant, the psychiatrist's opinion of a defendant's incompetency constitutes substantial evidence that requires the trial court to suspend the proceedings and order an evaluation of the defendant, regardless of other countervailing evidence in the record and regardless of the trial's court's own weighing of the evidence relating to the defendant's competency. (Mai, supra, 57 Cal.4th at pp. 1032-1033 ["[s]ubstantial evidence of incompetence exists when a qualified mental health expert who has examined the defendant states under oath, and `"`with particularity,'"' a professional opinion that because of mental illness, the defendant is incapable of understanding the purpose or nature of the criminal proceedings against him, or of cooperating with counsel."].) Therefore, because Dr. Morris had an opportunity to meet with Lucero and to review other relevant information in reaching his opinion, Dr. Morris's declaration constitutes substantial evidence that Lucero lacked the mental competence to stand trial.8

As further new evidence of Lucero's current mental state, defense counsel told the trial court that based on his own recent interactions with Lucero he believed that Lucero would not be able to rationally assist in his defense. Although counsel's opinion on a defendant's competency is not substantial evidence in and of itself, it is further relevant evidence supporting the request that the trial court initiate proceedings to determine Lucero's mental competency. (Mai, supra, 57 Cal.4th at p. 1033 ["[c]ounsel's assertion of a belief in a client's incompetence is entitled to some weight" but "does not, in the absence of substantial evidence to that effect, require the court to hold a competency hearing"].)

Accordingly, regardless of the trial court's subjective opinion as to Lucero's mental competency, because Dr. Morris's sworn declaration, together with defense counsel's statement, constituted substantial evidence that Lucero is incompetent to stand trial, the trial court was required to suspend the proceedings and initiate proceedings to determine Lucero's competency. The trial court erred, as matter of law, in not doing so.

DISPOSITION

Let a writ issue commanding respondent, immediately upon receipt of the writ, to suspend the criminal proceedings, appoint a mental health expert to evaluate Lucero pursuant to Penal Code sections 1368 and 1369, and if appropriate, hold a hearing regarding Lucero's competency to stand trial. This decision is final as to this court immediately upon filing. (Cal. Rules of Court, rule 8.490(b)(2)(A).) The stay previously issued by this court shall remain in effect until the issuance of the remittitur.

HUFFMAN, Acting P. J. and HALLER, J., concurs.