People v. Mosqueda CA1/2

Filed 5/16/23 P. v. Mosqueda CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and
Respondent, A166072
v. (Contra Costa County
JASON IVAN MOSQUEDA, Super. Ct. No. 02003338522)
Defendant and
Appellant.
Jason Ivan Mosqueda appeals from orders finding him not competent to
stand trial and committing him to the Department of State Hospitals (DSH)
pursuant to Penal Code section 1370 et seq.1 His appointed appellate counsel
filed a brief setting forth the applicable facts and law pursuant to
Conservatorship of Ben C. (2007) 40 Cal.4th 529 (Ben C.) and People v.
Blanchard (2019) 43 Cal.App.5th 1020, 1026 (Blanchard). Appointed counsel
informed Mosqueda that he could file a supplemental brief, but Mosqueda
has not done so. Our discretionary review of the record discloses no arguable
issues, and we therefore affirm.
1 Further statutory references will be to the Penal Code.
1
BACKGROUND
A complaint filed on January 6, 2021, charged Mosqueda with one
felony count of murder (§ 187, subd. (a)) and one misdemeanor count of
disobeying a protective order (§ 273.6, subd. (a)). It was further alleged that
in committing these offenses Mosqueda violated probation in three prior
cases. Mosqueda entered a plea of not guilty on January 15, 2021. The
preliminary hearing was set for February 26, 2021, then continued multiple
times.
On December 15, 2021, defense counsel expressed a doubt as to
Mosqueda’s competency (§ 1368). Based on defense counsel’s comments and
the court’s own observations, the court suspended criminal proceedings
pursuant to sections 1367 and 1368.2 On January 5, 2022, the court
appointed Alexis Smith, Psy.D., and Sumandeep Kaur, Psy.D., to evaluate
Mosqueda. Initially, neither was able to render an opinion, and they were
subsequently reappointed to review additional material. Both thereafter
submitted reports concluding Mosqueda was not competent to stand trial.
On July 20, 2022, the parties submitted on the competency reports.
Based on the reports, the court found Mosqueda was not presently able to
understand the nature and purpose of the proceedings against him and not
able to assist and cooperate with counsel in presenting a defense. The court
referred Mosqueda to the Contra Costa Conditional Release Program
(CONREP) for a placement recommendation. (§ 1370, subd. (a)(2)(A).) On
August 17, 2022, consistent with the CONREP recommendation, the court
2 The court also suspended criminal proceedings in two other cases
after noting that a doubt had been declared only in the present case and
confirming that counsel declared a doubt in the other two as well.
2
committed Mosqueda to the DSH for a maximum of two years. (§ 1370,
subd. (c)(1).)
Mosqueda filed a notice of appeal on July 25, 2022.3
DISCUSSION
In Ben C., our Supreme Court held that “[i]f appointed counsel in a
conservatorship appeal finds no arguable issues, counsel . . . should (1) inform
the court he or she has found no arguable issues to be pursued on appeal; and
(2) file a brief setting out the applicable facts and the law.” (Ben C., supra,40 Cal.4th at p. 544, fn. omitted.) In addition, “[t]he conservatee is to be
provided a copy of the brief and informed of the right to file a supplemental
brief.” (Id. at p. 544, fn. 6.) The reviewing court may then dismiss the appeal
if there are no arguable issues. (Id. at p. 544.) The Ben C. procedure applies
to appeals of competency proceedings. (Blanchard, supra, 43 Cal.App.5th at
pp. 1025-1026.)
Here, Mosqueda’s appointed appellate counsel followed Ben C. and
Blanchard, as well as the procedures described in People v. Delgadillo (2022)
14 Cal.5th 216, 231-232 [procedures for no-issues appeal from denial of relief
under post-sentencing ameliorative statutory amendments].) Counsel
reviewed the record, found no arguable issues and so informed Mosqueda;
filed his brief in this court and served Mosqueda with a copy; informed
Mosqueda that he could file a supplemental brief and that the appeal would
likely be dismissed if he did not do so; and provided Mosqueda with the
transcripts in the record on appeal. Counsel recognizes that, under
3 This notice of appeal was premature (People v. Fields (1965)
62 Cal.2d 538, 542 [order finding defendant incompetent to stand trial not
appealable]) but, after Mosqueda was committed to DSH, we elected to treat
the notice of appeal as having been filed immediately after the commitment
order (Cal. Rules of Court, rule 8.308(c)).
3
Blanchard, we are not required to independently review the record, but asks
us to exercise our discretion to conduct an independent review. (Ben C.,
supra, 40 Cal.4th at p. 544, fn. 7 [appellate court may choose to retain an
appeal rather than dismiss it; Delgadillo, at p. 232 [court retains discretion to
conduct independent review of record].)
We have reviewed the record. The finding that Mosqueda was not
competent to stand trial was supported by substantial evidence. The
commitment ordered by the court is authorized by law and supported by
CONREP’s recommendation. Mosqueda was represented by able counsel.
DISPOSITION
The orders finding Mosqueda incompetent to stand trial and
committing him to the Department of State Hospitals are affirmed.
4
STEWART, P.J.
We concur.
RICHMAN, J.
MARKMAN, J. *
People v. Mosqueda (A166072)
* Judge of the Alameda Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
5