People v. Casciaro CA3 ( 2024 )

Filed 2/27/24 P. v. Casciaro CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE, C098534
Plaintiff and Respondent, (Super. Ct. No.
LODCRFE20220010249)
v.
JIOVANNI BENJAMIN CASCIARO,
Defendant and Appellant.
Defendant Jiovanni Benjamin Casciaro appeals from an order committing him to
the Department of State Hospitals for competency restoration pursuant to Penal Code1
section 1370.2 His appointed counsel filed an opening brief that sets forth the facts of the
case and asks this court to review the record and determine whether there are any
1 Further undesignated statutory references are to the Penal Code.
2 The commitment order is appealable. (People v. Fields (1965) 62 Cal.2d 538, 540-
541; People v. Christiana (2010) 190 Cal.App.4th 1040, 1045-1046.)
1
arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Finding no
arguable error that would result in a disposition more favorable to defendant, we will
affirm.
I. BACKGROUND
In October 2022, defendant was charged with carjacking (§ 215, subd. (a)—count
1), unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)—count 2) with
a prior vehicle theft conviction (§ 666.5, subd. (a)), driving under the influence of drugs
(Veh. Code, § 23152, subd. (f)—count 3) with a conviction for the same offense within
the prior 10 years (Veh. Code, § 23540). Defendant pled not guilty and denied the
enhancement allegations.
In November 2022, defendant’s appointed counsel declared a doubt as to his
competency pursuant to section 1368. The trial court suspended criminal proceedings
and appointed an expert forensic psychologist, Dr. Marine Jakubowski, to examine
defendant under sections 1368 and 1369.
On December 16, 2022, Dr. Jakubowski attempted to meet with defendant, but he
refused. According to her report, Correctional Health Facility documentation showed
that defendant generally refused contact with mental health staff and denied having a
history of mental health symptoms or treatment. At that time, defendant did not have a
mental health diagnosis nor was there documentation of a psychotropic medication
prescription. Citing time constraints and defendant’s history of refusing appointments
and mental health services, Dr. Jakubowski informed the court that she would not attempt
to interview defendant before the next court date and that she would not be submitting a
competency report.
At a hearing on December 20, 2022, the trial court ordered a medication
evaluation and reordered Dr. Jakubowski to attempt to evaluate defendant. Defendant
subsequently refused to attend the rescheduled evaluation on December 30, 2022. Based
on a review of Correctional Health Facility documentation, Dr. Jakubowski informed the
2
court that on December 7 defendant was diagnosed with a mental health disorder not
otherwise specified; no other additional rationale or diagnostic clarification was given.
The previous month, defendant had been observed resting inside his mattress because he
reported being cold as they allegedly “took [his] blanket from [him].” Defendant
appeared calm and receptive to information provided; he stated he was “fine” and did not
“need you or to answer any questions.” Due to time constraints and defendant’s history
of refusing appointments and mental health services, Dr. Jakubowski reported she would
not make another attempt to interview defendant prior to his next court date.
Because Dr. Jakubowski had been unable to interview defendant at the jail, the
trial court vacated the appointment and appointed Dr. Gary Cavanaugh to evaluate
defendant at the courthouse. Defendant was scheduled for a medication evaluation in
January 2023, but he refused to cooperate with the clinic process.
On January 18, 2023, Dr. Cavanaugh interviewed defendant at the courthouse. In
a February 2023 report, Dr. Cavanaugh provisionally opined that defendant suffered from
antisocial personality disorder or personality disorder, unspecified, with
antisocial/dissocial traits. He also believed that defendant had a moderately severe
methamphetamine use disorder and moderate alcohol use disorder. Defendant was
uncooperative, sometimes intentionally so, and at other times he was disorganized;
according to Dr. Cavanaugh, defendant had a marginal ability to understand the nature
and purpose of the criminal proceedings, and his ability to express that understanding was
impaired.
Dr. Cavanaugh did not believe defendant was able to cooperate with counsel in a
rational fashion and deemed him incompetent to stand trial pursuant to section 1368.
Based on the available information, Dr. Cavanaugh reported that defendant required
treatment with antipsychotic medication, that given his lack of cooperativeness and his
disorganization defendant was not capable of refusing such medication, and that if he
3
were medicated it was more possible than not that defendant would be restored to at least
marginal competency.
At a hearing on February 9, 2023, counsel stipulated to submit the competency
issue based on Dr. Cavanaugh’s evaluation. Based on his competency report, the trial
court found defendant incompetent and referred him to the San Joaquin County
Behavioral Health Services (Behavioral Health) community program director (CONREP)
for a placement report and recommendations. The matter was set for a placement report
in March.
On March 2, 2023, Behavioral Health submitted an inconclusive placement report,
requesting an additional opportunity to interview defendant to determine whether a
community program could meet his needs rather than placement in the State Hospital.
According to the report, defendant had declined to meet for the placement interview. At
a hearing on March 2, the court encouraged defendant to talk to Behavioral Health and
continued the matter although defendant said he did not want to talk to anyone but would
not agree to treatment in the State Hospital.
Behavioral Health submitted a second report dated March 6, 2023. Defendant had
again refused to meet for a placement interview. Behavioral Health therefore
recommended that defendant be remanded for inpatient treatment for care, treatment, and
restoration to competence at any facility deemed appropriate by the Department of State
Hospitals.
At a hearing on March 14, 2023, the trial court considered the placement issue.
Defense counsel requested a medication evaluation under Sell v. United States (2003)
539 U.S. 166 (Sell). The court ordered Dr. Cavanaugh to conduct the Sell evaluation to
involuntarily medicate defendant.
The court conducted a Sell hearing on March 29, 2023. Dr. Cavanaugh testified
that because defendant ended his interview shortly after it commenced, he was unable to
fully diagnose defendant or opine on whether he needed antipsychotic medication. The
4
court sustained an objection to Dr. Cavanaugh’s opinion for lack of foundation, but
declined to strike the testimony because, in the court’s view, his answer “essentially
proves your point.”
Priscilla Kavanagh, a licensed professional clinical counselor and the community
program director for CONREP, testified that her duties included making placement
decisions for persons found incompetent. Although she attempted to interview
defendant, he refused to meet with her. Based on the testimony, defense counsel argued
that defendant should be treated in the community by CONREP rather than in the State
Hospital.
After Kavanagh’s testimony, the parties argued over whether defendant’s alleged
offenses precluded him from potential outpatient placements under sections 1600 and
1601.3 Following argument, and considering the allegations against defendant, the trial
court ordered him remanded to the Department of State Hospitals with a referral for the
patient management unit. Although the trial court did not find that defendant was
3 Section 1600 provides in relevant part: “Any person committed to a state hospital or
other treatment facility under [certain identified statutory provisions] may be placed on
outpatient status from that commitment subject to the procedures and provisions of this
title, except that a developmentally disabled person may be placed on outpatient status
from that commitment under the provisions of this title as modified by Section 1370.4.”
Section 1601, subdivision (a) partly provides: “When a person charged with and found
incompetent on a charge of . . . robbery or carjacking with a deadly or dangerous weapon
or in which the victim suffers great bodily injury . . . or any felony involving death, great
bodily injury, or an act which poses a serious threat of bodily harm to another person,
outpatient status under this title shall not be available until that person has actually been
confined in a state hospital or other treatment facility for 180 days or more after having
been committed under the provisions of law specified in Section 1600, unless the court
finds a suitable placement, including, but not limited to, an outpatient placement
program, that would provide the person with more appropriate mental health treatment
and the court finds that the placement would not pose a danger to the health or safety of
others, including, but not limited to, the safety of the victim and the victim’s family.”
5
excluded from potential outpatient placements, it concluded that because defendant
refused to participate in outpatient treatment, the only remaining option was the
Department of State Hospitals for competency training. Regarding the Sell hearing, the
court found that defendant retained the right to refuse antipsychotic medication. On
April 6, 2023, the court entered a judgment of mental incompetence and order for
commitment under section 1370 in accordance with its ruling at the hearing. Defendant
timely appealed.
II. DISCUSSION
Appointed counsel filed an opening brief setting forth the facts of the case and
asking this court to review the record and determine whether there are any arguable
issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of
the right to file a supplemental brief within 30 days of the date of filing the opening brief.
More than 30 days elapsed, and we received no communication from defendant.
After independently examining the record, we find no arguable error that would
result in a disposition more favorable to defendant. However, we have identified a
clerical error in the judgment of mental incompetence and order of commitment that must
be corrected.
The trial court orally found that defendant retained the right to refuse antipsychotic
medication. While the last page of the judgment included a checked box in accordance
with the court’s oral ruling, indicating that “[d]efendant retains his/her right to refuse
antipsychotic medication,” the first page of the judgment includes a checked box stating
that the court found defendant incompetent to refuse antipsychotic medication. Given the
trial court’s oral pronouncement at the hearing finding defendant retained the right to
refuse antipsychotic medication, it appears the box on the first page of the judgment was
checked in error. Because the court’s oral pronouncement controls (People v. Zackery
(2007) 147 Cal.App.4th 380, 385), we shall direct the judgment be corrected accordingly.
6
III. DISPOSITION
The judgment of mental incompetence and order for commitment is affirmed. The
clerk of the trial court is directed to correct the judgment and ordered to uncheck the box
stating the “Court Finds Defendant Incompetent to Refuse” on the first page under the
heading “Antipsychotic Medications,” and to instead check the box under that same
heading stating, “Defendant Retains Right to Refuse.” The clerk shall forward a copy of
the corrected judgment and order to the Department of State Hospitals.
/S/
RENNER, J.
We concur:
/S/
HULL, Acting P. J.
/S/
MAURO, J.
7