Francisco Figueroa v. Warden, State Prison (2011)

HABEAS DECISION

DECISION

THE COURT:  All right.   I have reviewed everything and I am prepared to rule.

This is a claim ․ there's two claims here.   One is for ineffective assistance of counsel and one is for a due process violation, the due process violation being that Mr. Figueroa was put to trial on the violation of probation while he was not competent to stand trial.   The ineffective assistance of counsel is that his counsel did not ask for a competency hearing.   So at base of both claims is that Mr. Figueroa was incompetent at the time of trial.   Clearly, if he was incompetent at the time of trial, he was entitled to be restored to competency before being tried, at least before being sentenced.

There's an interesting issue, I think, under 54–56d as to what stage of violation of probation hearing a competency determination would apply to, whether it's the sentencing stage or the entire case because, as we know, a violation of probation hearing is different than a trial of a criminal case.   But assuming that it applies to entire proceeding, I have to determine whether the petitioner has presented evidence that he was not competent at the time.   The evidence is the motions that were filed and Mr. Figueroa' a testimony.

As to the motions, while the terminology in all of the motions is different and attempts to come at the issue in a number of different ways, there is a consistent approach to the motions, and that is ․ or a consistent goal of the motions, and that is to avoid a violation of probation hearing and to get a program, and all of the motions have at their core that goal and they take different approaches to either get the charges dismissed or to get the prosecution suspended, but that is the goal that Mr. Figueroa was taking in all of those motions.

They reflect to me an understanding of what he was facing at the time, and that was confirmed by what Mr. Figueroa testified to here today.   He understood at the time that his exposure was six years.   He understood at the time that the state was offering him four years.

There is a discrepancy between his testimony and Attorney Bruckmann's testimony as to what Mr. Figueroa was willing to accept, but if I credit Mr. Figueroa's testimony that he was willing to accept three years instead of four, then what that reflects is that he was weighing the offers being made and making counter proposals and understood what his exposure was if he went forward with the hearing.

Furthermore, I looked at his testimony during the hearing and he testified that he understood at the time of this incident in 2007 that he was on probation.   He indicated that when he left the house, after his son had left the house, he understood he was on probation and he understood that the police were likely to come for him because of that.   So he had an idea at that time as to what probation meant and this was not his first time on probation.   He had been on probation before.   He had been violated on probation before and he had received a sentence because of his violation of probation and that happened after 2002, after the hit on the head with the spatula.

Further, his testimony shows that he was able to respond cogently to questions asked of him at trial, both on direct and cross-examination.   There were a number of times on cross-examination when he corrected Attorney Kelly and said, “No, that's not what I said.”   And it was clear from a review of his testimony that he understood what was happening at that violation of probation hearing on March 23rd 2007.

His story, while not accepted by Judge Rodriguez, was consistent throughout—That he went downstairs.   He came back upstairs ahead of his wife;  that she fell on the steps.   She said, “Ow,” when she fell on the steps.   He had nothing to do with it because he was ahead of her.   So he didn't do that and then his son came out, misunderstood the situation and attacked him;  that the son had the weapon in his hand the entire time;  that Mr. Figueroa never had a weapon in his hand and was struck by his son on the side of his face.

His testimony was consistent in his version of the events throughout his direct and his cross-examination, and despite attempts by Attorney Kelly to trip him up on inconsistencies, he stayed consistent in his testimony throughout, indicating that he understood the nature of the proceedings against him, he understood the nature of the charges against him and he understood why he was in court that day.

It also shows that he was able to provide assistance to his attorney because he was able to testify in a cogent manner.

When I look at the cross-examination that Attorney Bruckmann conducted of Mr. Figueroa's son, in particular, it reflects that Mr. Figueroa was able to help Attorney Bruckmann in preparing for that cross-examination.

One example, at the end of the cross-examination Attorney Bruckmann asked Mr. Figueroa's son, “You say your father had the knife in his right hand,” and the witness says, “Yes,” and Attorney Bruckmann points out and says, “Isn't it true your father is lefthanded?”   And the witness says, “I can't answer ․ I can't tell you about that.”

But that type of information would have come from the interaction between Mr. Figueroa and Attorney Bruckmann, indicating that Mr. Figueroa was able to help Attorney Bruckmann and say, “Hey, look.   My son's story doesn't make sense that I had the knife in my right hand because I'm left-handed.”

Those types of ․ that type of testimony, or that type of questioning by Attorney Bruckmann, and there are other examples of it, indicate that Mr. Figueroa was able to assist Attorney Bruckmann in preparing the case for trial and able to assist him during trial and was able to assist by providing his own testimony.

Since those are the two kind of fundamental elements of competence under 54–56d, assist your attorney and understand the nature of the proceedings against him, I find that Mr. Figueroa hasn't proved that he was not competent at the time.

Furthermore, there was no testimony that would lead the court to conclude that he appeared to be incompetent given his trial testimony.   The mere filing of the motions doesn't create an appearance of incompetence in my view and Attorney Bruckmann has substantial experience, 29 years of experience in representing criminal defendants.   He has filed and dealt with incompetent defendants before, and based on his interaction with Mr. Figueroa, never found anything that would indicate that he was incompetent, and given that Attorney Bruckmann understood that Mr. Figueroa was interested in delaying the proceedings, if he felt that there was a basis there, he would have done something for Mr. Figueroa.

So the court credits Attorney Bruckmann's testimony and believes ․ finds him the more credible witness, that Mr. Figueroa did not appear incompetent at the time.   So even if I use that standard, I find that the petitioner has not provided sufficient evidence to show that he appeared to be incompetent at the time.

Finally, I'll note that Mr. Figueroa did address the court, even after he testified in connection with the penalty phase of the VOP hearing, and he did so in a cogent manner.   When asked by Judge Rodriguez for his comments, or whether he wanted to say anything, Mr. Figueroa said, “I'd like to say, Your Honor, that in spite of all of this, Your Honor, the trials and tribulations I've went through, you know, through all my relationship with my wife, I've been through some harsh problems.   Whatever may be, you know, right here today, I just hope it's everything to look forward and look forward to with all the facts, everything here.   I just ․ I just wanted to say that.   Also, whatever happens from now on, I just hope it will be a fair judgment.   That's all.   That's all I'll say.   Thank you.”

It does not reflect any confusion on the part of Mr. Figueroa of what was going on or the nature of the proceedings and it reflected a calm, cogent summary to the judge.

Finally, when he was sentenced on March 26th, 2007, it is interesting to the court that Mr. Figueroa had enough presence of mind after the judge pronounced sentence to say, “Your Honor, this is double jeopardy.   You cannot sentence me under this.”

Judge Rodriguez said, “I would appreciate ․” And then Mr. Figueroa went on to say, “You cannot sentence me under this.   It's double jeopardy.   You just had a hearing here on my domestic here.   That's double jeopardy.   You cannot do that.”

Now, Mr. Figueroa may have been wrong in his analysis of double jeopardy, but it does reflect a knowledge of the legal proceedings on his part and of the criminal law that is inconsistent with a claim that he was incompetent and didn't understand the nature of the proceedings against him.

So, for all of those reasons, I find that he has not presented sufficient evidence in support of his petition and the petition is denied.

I'll order the transcript as my memorandum of decision in this case, and I think that covers everything.

Anything else, counsel?

ATTY. KOCH:  No, Your Honor.

THE COURT:  Attorney Eisenman, anything else?

ATTY. EISENMAN:  No, Your Honor.   Thank you very much.

THE COURT:  All right.   We'll stand in recess.

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Bright, J.

Bright, William H., J.