Filed 8/3/21 In re N.M. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re N.M., a Person Coming 2d Juv. No. B304412
Under the Juvenile Court Law. (Super. Ct. No. MJ24625)
(Los Angeles County)
THE PEOPLE,
Plaintiff and Respondent,
v.
N.M.,
Defendant and Appellant.
N.M. appeals a dispositional order declaring him a ward of
the court and placing him home on probation. (Welf. & Inst.
Code, § 602.) The order follows the juvenile court’s finding that
N.M. committed assault by means of force likely to produce great
bodily injury (Pen. Code, § 245, subd. (a)(4)) and made criminal
threats (Id., § 422, subd. (a)). N.M. contends the court erred
when it found him competent to proceed to adjudication and
refused to appoint a second expert to opine on this issue. N.M.
also contends the juvenile court lacked sufficient evidence to
sustain the allegations that he committed the charged offenses.
We affirm the dispositional order.
FACTUAL BACKGROUND
Los Angeles County Sheriff deputy Adan Ordaz responded
to a domestic disturbance call at a Lancaster home on July 8,
2019. He saw appellant N.M. standing outside the house yelling
profanities at the occupants of a car in the driveway. Deputy
Ordaz detained N.M. in his patrol car and began interviewing
those at the scene.
N.M.’s mother, told the deputy that her son’s girlfriend K.F.
walked into her bedroom visibly upset after an argument with
N.M. K.F. did not want to talk about why she was upset. N.M.
entered the bedroom a few minutes later and the two minors
walked out, only to resume arguing loudly. N.M.’s mother called
911 when she tried but failed to calm them down. She told the
deputy she saw her son pull K.F. into his bedroom, pick her up,
then throw her to the floor.
Deputy Ordaz recalled K.F. shaking and crying when he
interviewed her. She said the argument began when she declined
N.M.’s sexual advances and tried to leave his bedroom. He pulled
her back into the bedroom and threw her on top of a mattress.
He punched her multiple times in the arm and leg then choked
her hard enough to block her breathing for about 20 seconds. She
ran to N.M.’s mother’s bedroom but N.M. persuaded her to come
out. He again pulled her into his bedroom, picked her up, then
“slammed” her to the ground. When K.F. told N.M. she would
tell her brothers what he had done, he told her “he would get a
gun and kill . . . her brothers and . . . her” if she did so. She said
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she had previously seen appellant with a black and brown
semiautomatic pistol he kept in the garage or his bedroom.
Deputy Ordaz searched both locations but found no weapon.
K.F.’s parents were the occupants of the car in the
driveway when Deputy Ordaz arrived. K.F.’s mother said K.F.
described how appellant grew angry when he “wanted her to have
sex and she didn’t want to have sex, and he grabbed her and
choked her and tried to pull her in the room.” N.M. came outside
the house when they arrived and told them, “I’m not scared of
you all. I’ll shoot you.” K.F.’s father1 told the deputy that he
feared for their lives when N.M. went inside the house because he
believed the boy would re-emerge with a gun and carry out his
threat.
PROCEDURAL BACKGROUND
Defense counsel presented a psychological report in August
of 2019 indicating N.M. might have difficulty helping counsel
prepare his defense. The court suspended the proceedings and
appointed Velia Inez Gonzalez, Ph.D. to evaluate him. It
scheduled a competency hearing and ordered N.M. to remain in
juvenile hall.
Dr. Gonzalez interviewed N.M. and prepared a written
evaluation. She concluded N.M. was incompetent and would not
likely obtain competency in the foreseeable future.2 She
1K.F.’s father passed away two months later. His death
was not related to this incident.
2 Subdivision (e) of section 709 of the Welfare and
Institutions Code states in relevant part that “[i]f the court finds,
by a preponderance of [the] evidence, that the minor is
incompetent, all proceedings shall remain suspended for a period
of time that is no longer than reasonably necessary to determine
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reiterated this opinion when testifying at the competency
hearing. The court rejected her finding, denied defense counsel’s
request to appoint a second expert, and reinstated the
proceedings on the People’s amended felony petition. The
adjudication hearing took place over three days in January of
2020.
N.M.’s mother and K.F. changed their accounts of the
incident when they testified at the hearing. N.M.’s mother
denied any physical contact occurred at all. She claimed to have
called 911 only so police could calm down K.F. and remove her
from the house. She also denied her son spoke to K.F.’s parents
when they arrived to pick her up. K.F. denied the attack entirely
and said she never spoke to a sheriff’s deputy. K.F.’s mother, in
contrast, gave an account consistent with her initial interview
with Deputy Ordaz. The juvenile court permitted Deputy Ordaz
to testify about K.F.’s and N.M.’s mother’s initial statements to
the extent they were inconsistent with their in-court testimony.
(Evid. Code, § 770.)
The juvenile court found two of the amended petition’s five
counts true: (1) count one for assault by means of force likely to
produce great bodily injury as to K.F. (Pen. Code, § 245, subd.
(a)(4)); and (2) count three for making criminal threats, also to
K.F. (Id., § 422, subd. (a)). It granted N.M.’s motion for directed
verdict on the battery charge (count two) and found the People
had not proven its criminal threats charges involving K.F.’s
father and mother (counts four and five). It declared appellant a
ward of the court and placed him home on probation for four
years and eight months.
whether there is a substantial probability that the minor will
obtain competency in the foreseeable future.”
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N.M. appeals the court’s competency rulings and its
sustaining of counts one and three of the amended petition.
DISCUSSION
1. N.M.’s Competency
The law presumes minors age 14 and older are competent
to face juvenile delinquency proceedings. (Pen. Code, § 26.) The
party asserting incompetency bears the burden of proving the
minor “lacks sufficient present ability to consult with counsel and
assist in preparing [his or her] defense with a reasonable degree
of rational understanding, or lacks a rational as well as factual
understanding, of the nature of the charges or proceedings
against [him or her].” (Welf. & Inst. Code, § 709, subd. (a)(2).)
We review competency findings for substantial evidence, viewing
the record “in the light most favorable to the juvenile court’s
determination.” (In re R.V. (2015) 61 Cal.4th 181, 200.) The
inquiry on appeal concerns “whether the weight and character of
the evidence of incompetency was such that the juvenile court
could not reasonably reject it.” (Id. at p. 203.)
N.M. asserts the juvenile court could not have reasonably
rejected what amounted to undisputed evidence of his lack of
competency. Dr. Gonzalez stated N.M.’s full scale IQ of 54 fell
“significantly below normal range.” School records indicated he
received special education services to address “weaknesses in
attention, phonemic awareness, short-term auditory memory,
visual processing and conceptualization.” Dr. Gonzalez
administered the Juvenile Adjudicative Competence Interview
(JACI) and concluded he did not “have a clear understanding of
his current charges, the nature and purpose of a court trial, the
role of a prosecutor and a probation officer, how to assist [his]
lawyer in his defense, and a plea bargain.” Two psychological
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evaluations performed the same year likewise doubted his
competency. Appellant likens his case to In re R.V., supra, 61
Cal.4th 181, in which the Supreme Court reversed a finding of
competence where the court-appointed expert concluded the
minor’s mental illness and developmental disabilities prevented
him from assisting in his defense.
In re R.V. is an imperfect analogue. R.V.’s court-appointed
evaluator described the minor as “‘legitimately confused’” about
what was occurring and as possibly suffering from a psychotic
disorder such as schizophrenia. (In re R.V., supra, 61 Cal.4th at
p. 206.) The minor could not articulate the reason for his
detention or provide the evaluator with basic background
information. (Id. at p. 204.) N.M.’s evaluator observed no such
confusion. She found him “oriented to place, person, situation,
and date” and described his thought content as “future-oriented
and relevant to questions asked.” N.M. spoke clearly and
coherently to her and displayed no inappropriate behaviors or
perceptual disturbances. He described the nature of the charges
against him, the roles of the prosecutor and defense counsel, and
his willingness to participate in house arrest and therapy if it
enabled him to return home. This prompted the court to conclude
“that [N.M.], who otherwise communicates well and clearly, may
need a little bit of extra time from counsel in understanding
what’s going on with his case . . . even in the material that Dr.
Gonzalez testified to, he understands what his case is about, he
understands what it means to plead, to admit or not admit what
happened, and when one would do that.” The evidence provided
a substantial basis for the juvenile court to find N.M. competent
to proceed despite his cognitive delays and learning difficulties.
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2. Defense Counsel’s Request to Appoint a Second Expert
to Opine on N.M.’s Competency
The juvenile court may appoint another expert to evaluate
a minor’s competency if it finds the first expert’s methodology or
reasoning flawed. (See In re R.V., supra, 61 Cal.4th at p. 216
[“When, as here, the expert concludes that the minor is
incompetent but the juvenile court finds flaws in the expert’s
methodology and reasoning, the court should consider appointing
a second expert to inform the court’s view that the first expert’s
opinion is inadequate”].) N.M. argues the court abused its
discretion by declining defense counsel’s request to appoint
another expert after rejecting Dr. Gonzalez’s findings.
We conclude no abuse occurred. The juvenile court found
N.M. competent based on facts gleaned from Dr. Gonzalez’s live
testimony, her written evaluation, and from psychological records
and other documents submitted to her by defense counsel. The
court parted ways with the expert because it felt she set the bar
of juvenile competence too high, or, more specifically, as
“expecting of a minor an understanding of a court proceeding that
even an adult might be hard-pressed to have.” It cited the
brevity of her interview as further skewing the evaluation by
depriving N.M. of the time he needed to digest and verbalize
appropriate responses to her JACI-generated questions. A trier
of fact need not accept the testimony of an expert witness, even if
uncontradicted. (Kennemur v. State of California (1982) 133
Cal.App.3d 907, 923.)
The record leaves little reason to believe yet another
psychological evaluation and further expert testimony would
have tipped the evidentiary scales, so to speak, toward N.M.’s
incompetence. The court satisfied its obligation to consider
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defense counsel’s request and exercised its discretion properly
when it denied that request. (See In re L.W. (2020) 44
Cal.App.5th 44, 51, internal quotes omitted [“To show abuse of
discretion, the appellant must demonstrate the juvenile court
exercised its discretion in an arbitrary, capricious or patently
absurd manner . . .”].)
3. Allegations of Assault and Criminal Threats
The juvenile court found “true” the amended petition’s
allegations that N.M. committed assault by means of force likely
to produce great bodily injury and made criminal threats. Again,
we review its findings for substantial evidence. (In re Ryan N.
(2001) 92 Cal.App.4th 1359, 1371.) “Even if different inferences
can reasonably be drawn from the evidence, we cannot substitute
our own inferences or deductions for those of the trial court.” (Id.
at p. 1373.) Our review “begins and ends with a determination of
whether, on the entire record, there is any substantial evidence,
contradicted or uncontradicted, which will support the decision of
the trier of fact. [Citations.]” (Ibid.)
Deputy Ordaz testified in detail about the account each
witness provided when he arrived on scene. K.F. recalled N.M.
choking her hard enough to block her breathing for 20 seconds.
Later he picked her up and “slammed” her to the ground. K.F.’s
mother told the deputy that her daughter gave the same account
the day of the attack. We consider this evidence sufficient to
sustain the juvenile court’s finding beyond a reasonable doubt
that N.M. assaulted K.F. by means of force likely to produce great
bodily injury. Either act could have gravely injured or even killed
K.F. (See People v. Armstrong (1992) 8 Cal. App. 4th 1060, 1066,
citing People v. Covino (1980) 100 Cal.App.3d 660, 667 [“Great
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bodily injury is bodily injury which is significant or substantial,
not insignificant, trivial or moderate”].)
The record contains substantial evidence of N.M.’s criminal
threats as well. Deputy Ordaz recounted his conversation with
K.F. about N.M.’s threat to shoot her brothers and her if she
reported the assault. N.M.’s mother corroborated this account
when she confirmed one of the responding deputies asked to
search the garage for suspected weapons. In addition, K.F.’s
mother testified how N.M. made a similar threat toward her
husband when they arrived at N.M.’s mother’s home to pick up
their daughter. Any conflict in the evidence created when later
K.F. recanted her account of the incident was for the juvenile
court to resolve. (In re Ryan N., supra, 92 Cal.App.4th at pp.
1372-1373.)
DISPOSITION
The juvenile court’s dispositional order sustaining counts 1
and 3 of the amended 602 petition is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
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Hon. William A. Crowfoot, Judge
Superior Court County of Los Angeles
______________________________
Laini Millar Melnick, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Rob Bonta, Attorneys General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Senior Assistant Attorney General, Michael R. Johnsen,
Supervising Deputy Attorney General, and David W. Williams,
Deputy Attorney General, for Plaintiff and Respondent.
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