P. v. Brown
Filed 4/26/13 P. v. Brown CA2/5
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
WARREN
EARNEST BROWN,
Defendant and Appellant.
B236407
(Los Angeles
County
Super. Ct.
No. YA068285)
APPEAL from
a judgment of the Superior Court
of Los Angeles County.
Pat Connolly, Judge. Affirmed.
David Reis
Mishook, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Senior Assistant Attorney General, Eric E. Reynolds and
Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
_______________
Appellant Warren Earnest Brown pled no contest to one
count of assault on a peace officer in violation of Penal Code section 245,
subdivision (c),
title="">[1]
in case number YA068285. The trial court
imposed and stayed a four-year prison term, and placed appellant on formal
probation. Two years later, appellant
was arrested and charged with three counts of battery with injury on a peace
officer in violation of section 243, subdivision (c)(2) and three counts of
resisting an executive officer in violation of
section 69, in case number TA112635. The trial court found appellant in violation
of his probation in case number YA068285, revoked that probation and imposed
the previously stayed term of four years in state prison. Case number TA112635 was dismissed.
Appellant
appeals from the order revoking probation.
(§ 1237, subd. (b).) He contends
that the trial court erred in failing to declare a doubt as to appellant's
competence sua sponte. We affirm the
trial court's order.
Underlying criminal
charges and probation violation
1. Case number YA068285
On May 18, 2007, Los Angeles County
Sheriff's Deputies observed appellant enter and leave a residence known for
narcotics sales. The deputies learned
that appellant had three outstanding arrest warrants, and approached him to
take him into custody. A struggle
ensued. Other deputies came to the scene
and used a Taser to subdue appellant.
Appellant was found to have rock cocaine and marijuana. Appellant was charged with assault on a peace
officer or firefighter, battery on a peace officer or firefighter, resisting an
executive officer and possession of a controlled substance. On February 25, 2008, appellant pled guilty
to one count of assault on a peace officer or firefighter. He was placed on probation.
2. Case number TA112635
On June 3, 2010, Los Angeles Police
Officers James Williams and Juan Oliva were on patrol on West Manchester when
they noticed appellant standing in front of a gas station. Officer Williams had previously arrested
appellant for trespassing at the gas station and had advised him not to return
there. The two officers got out of their
patrol car, approached appellant and told him that he was under arrest. Appellant told the officers that they could
not arrest him because he was in the military.
More officers came to the scene.
Officer Clinton Harrell tried to arrest appellant, and appellant punched
him in his face. The blow resulted in a
cut and a black eye. Officers Williams
and Oliva then attempted to arrest appellant.
Appellant struggled, but was subdued.
Officer Williams's hand was scraped and Officer Oliva's neck got an
abrasion during the struggle.
Ultimately, this matter proceeded
as a probation violation. Appellant was
found in violation of his probation in case number YA068285. On September 6, 2011, the trial court
sentenced appellant to four years in state prison.
Appellant's
competency history
The
information in case number YA068285 was filed on July 3, 2007. On July 17, 2007, the trial court granted a
defense motion to have a psychiatrist examine appellant. On October 17, 2007, the trial court declared
a doubt as to appellant's mental competence pursuant to section 1368. In November 2007, both the People's appointed
expert (Dr. Kaushal K. Sharma) and appellant's appointed expert filed reports
concluding that appellant was malingering and was competent to stand trial. On November 27, 2007, the trial court found
appellant competent to stand trial. On
February 25, 2008, appellant pled no contest in this case, and received
probation.
The information in case number
TA112635 was filed on June 7, 2010. At
that time, appellant was represented by Russell Griffith, a deputy public
defender. That same day, counsel
declared a doubt as to appellant's competency to stand trial. The trial court (Judge Joel M. Wallenstein)
suspended proceedings and referred appellant to Department 95.
The matter became case number
ZM016275 in the mental health court.
Appellant was evaluated by Dr. Sharma.
In his July 12, 2010 report, Dr. Sharma stated that appellant's
presentation was "consistent with a person who is mentally ill and is
incompetent to stand trial." Dr.
Sharma recommended a hospital commitment and involuntary medication. The mental health court found appellant
mentally incompetent, ordered him committed to Patton State Hospital and
authorized involuntary treatment with medication.
On December 20, 2010, the mental
health court held a hearing and determined that appellant was mentally
competent. Criminal proceedings were
reinstated. Appellant was represented at
the hearing by Julia Leeds, a deputy public defender. On December 21, 2010, the trial court (Judge
Wallenstein) granted appellant's request for self-representation.
At some point between December 21,
2010 and January 5, 2011, appellant sent a document to the court. The document is not part of the record on
appeal. The document was discussed at
the hearing held by the trial court (Judge Gary Hahn) on January 5, 2011. At the beginning of that hearing, the court
stated that it had had Albert De Blanc, the Indigent Criminal Defense
Appointments ("ICDA") attorney, talk to appellant. Mr. De Blanc confirmed to the court that
appellant was "still talking about military service," and saying that
there were "secret records" and that "they" took guns from
him. The court stated, "That's the
same thing he says in this document."
The court declared a doubt as to appellant's competency. Mr. De Blanc shared the trial court's
doubt. The court noted, "Reading
what [appellant] filed actually, within this, he did ask for a legal attorney
in here." The court appointed ICDA
to represent appellant. The matter was
certified to the mental health court in case number ZM017077. Dr. Sharma evaluated appellant and concluded
that he was mentally competent. On
February 7, 2011, the mental health court found that appellant was mentally
competent. Criminal proceedings were
reinstated.
On February
8, 2011, the trial court granted appellant's motion for
self-representation. On February 16,
2011, the trial court revoked appellant's pro. per. status.
On March
15, 2011, a hearing on appellant's motion to dismiss was held in case number
TA112635. Appellant was represented at
this hearing by Jason K. Feldman. Mr.
Feldman stated that the hearing was being held pursuant to section 1368.1, and
the trial court (Judge Hahn) agreed.
That section permits a limited number of proceedings to take place pending
a competency hearing. There is nothing
in the record which indicates that a competency proceeding was pending, and so
the reason for invoking section 1368.1 is not clear. At the conclusion of the hearing, the court
stated that the matter was referred to Department P for arraignment on March
29th.
On March
29, 2011, appellant was arraigned in the trial court (Judge Pat Connolly). He was still represented by Mr. Feldman.
On June 15,
2011, Mr. Feldman filed a motion for appointment of a mental health
expert. In the motion, he wrote: "Based upon police reports provided on
or about
June 13, 2011, 'Mr. Brown made spontaneous statements which
indicated he was suffering from a mental illness.' According to these reports, on the date and
time in question, the defendant believed he was an agent of the government
working on authority of the White House overseeing the building of a military
base at the location. This calls into
question the defendant's ability to stand trial. This further necessitates a mental health
evaluation to assist the trier of fact in determining whether the defendant
possessed the requisite mental state to commit the alleged crimes."
On June 16, 2011, the trial court
(Judge Pat Connolly) held a hearing on appellant's motion for a mental health
expert. At the hearing, the court noted
that "in the motion itself, Mr. Feldman has written that based on
statements by Mr. Brown at the time, that Mr. Feldman is relying on an
evaluation done by police officers, or peace officers, which the court finds of
dubious quality. But it also states here
that this calls into question the defendant's ability to stand trial. [¶] I
completely disagree with you,
Mr. Feldman, as far as that point in this motion. We've had an evaluation done, and
Mr. Brown has been sent back, and he is most definitely
competent to stand trial." The
court then continued: "It also says
here this further necessitates a further health evaluation to assist the trier
of fact to determine whether or not the defendant possesses the recognition to
commit said crimes." The court
agreed that "[a]long those lines, as well as perhaps their defense, which
I think is along those lines, . . . for that purpose, I do think that this is a
well taken motion."
There were
no further competency hearings. The
court held a probation violation hearing on August 26, 2011, and found
appellant in violation of his probation.
Discussion
Appellant
contends that "throughout his appearances on the underlying criminal
charges and trailing probationary matter, and both before and after appellant
was allowed to proceed pro per, [he]
exhibited bizarre and paranoid beliefs which were substantial evidence before
the trial court of appellant's incompetency to stand trial under Penal Code
section 1367. This behavior required the
trial court, sua sponte, to declare a
doubt as to appellant's competency and hold appropriate competency
hearings."
As
appellant acknowledges, and is set forth, ante,
doubt was declared at least twice in this matter. Both times, proceedings were suspended until
appellant was found competent.
"'When a competency hearing has already been held and 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.
[Citations.]'" (
495, 542–543; People
(2009) 47 Cal.4th 850, 864.)
Appellant
was found competent in December 2010 and again in February 2011. He has not shown a substantial change in
circumstances or new evidence that casts a serious doubt on the validity of the
February 2011 competency finding.
The
February competency determination arose from a hearing on January 5, 2011. The following exchange took place between the
trial court and Albert De Blanc, the ICDA attorney.
"The
Court: [¶] . . . [¶] I had Mr. De Blanc,
the ICDA attorney, go back and talk to [appellant]. He said he is still talking about military
service.
"Mr.
De Blanc: There are secret records. They took guns from him.
"The
Court: He is still talking about
it. That's the same things he says in
this document. [¶] So I'm going to suspend proceedings. He is incompetent. [¶] Read what he
wrote. Read what he told Mr. De Blanc.
[¶] . . .
[¶]
"The
Court: [¶] . . . [¶] He cannot cooperate
with an attorney, doesn't know what happened.
He had no idea. He is not being
charged with robbery."
Mr. De
Blanc then asked if appellant was still representing himself.
"The Court: I will be glad to appoint [an attorney]. [¶]
Reading what he filed actually, within this, he did ask for a legal attorney in
here.
"Mr. De Blanc: I asked him about that. Of course he only wants a lawyer if the
lawyer can get his secret file. [¶] I said, 'What if the lawyer can't get your
secret file?' [¶] He says, 'Then I'm representing myself.'"
As part of
the subsequent competency proceedings, appellant was evaluated by Dr.
Sharma. The record shows that Dr. Sharma
had evaluated appellant on at least two prior occasions, and so was familiar
with appellant. He was one of the
doctors who found appellant incompetent in June 2010. In his February 7, 2011 report, Dr. Sharma
wrote: "Under sec. 1372 PC in Dec.
2010, [appellant] was found to have his competency restored and sent back to
Compton court. He was apparently in
pro-per. Since Dec. 2010 he is refusing
his medication Zyprexa. Today he is not
demonstrating psychotic symptoms. He is
aware of his legal predicament. Without
medication he may decompensate but at this time he is symptom free and thus
must be considered competent."
Appellant's
statements after this competency finding are the same as those identified at
the January 5 hearing. At the March 15,
2011 hearing on appellant's motion to dismiss, for example, appellant said,
"I'm an active duty military federal agent." In a March 29, 2011 letter to the court
requesting pro. per. status, appellant again described himself as an active
duty federal military agent. In an April
13, 2011 letter to the court requesting a change of venue, appellant again
referred to himself as an active duty federal military agent, and referred to
secret records, United Nations personnel, bloodlines and being activated for
war, among other things. Appellant made
similar statements at hearings held on May 4, June 1 and June 16, 2011. The issue of appellant's competency was
raised by appellant's counsel at the June 16 hearing, but counsel based his
concerns on statements made by appellant more than a year earlier, at the time
of his arrest. And, as the trial court
pointed out, there had been a competency hearing in the interval. In fact, there had been two.
These statements do not represent a
change of circumstances or new evidence calling the competency finding into
question. To the extent that appellant
relies on the passage of time, coupled with Dr. Sharma's February statement
that appellant might decompensate without his medication, to show a changed
circumstance, that reliance is misplaced.
Appellant had been refusing his medicine for over two months at the time
Dr. Sharma evaluated him, and was competent at that
time. Thus, decompensation was in no way
predictable or inevitable.
Appellant's mental state was
examined in some detail by the trial court at the
July 14, 2011 hearing on appellant's successful
that he was a federal agent and again made various related claims. The court stated that it did "have a
concern as to [appellant's] being on active duty and stating that as his
employment experience starting on November 27th of 2009, by a Supreme Court
ruling." The court found, however,
that appellant "has answered every question and he's done so
previously. He does understand the
nature of the adversarial proceedings that is going to be this criminal
trial. He does understand the dangers
and disadvantages of self representation.
He was able to answer that these are general intent crimes, and as to
what needs to be proven. As to the legal
defenses, his answer is satisfactory."
Although appellant mentioned his federal agent status as a defense
during the hearing, he also maintained:
"I was assaulted. I'm notifying
the court that I was assaulted which, you know, I did defend myself." Appellant also mentioned his belief that he
was being framed. Self-defense and being
framed are legitimate defense theories which are often raised in criminal
trials. Nothing that occurred at the
hearing constituted new evidence or a change of circumstances calling the
competency finding into question.
At the probation revocation
hearing, appellant did refer to his federal agent status and did argue that his
records were sealed as defenses to the probation violation. However, he also attempted to show that he
was attacked by Officer Harrell while attempting to talk to the arresting
officer, and also to show that a number of officers used excessive force on
him. Further, there were two videotapes
of the arrest, and appellant questioned Officer Harrell about the tapes to show
that those tapes did not contain images of appellant hitting Officer
Harrell. The facts of appellant's
probation violation were straightforward, and it is difficult to see how any
defendant could have mounted an effective defense to the violation charge.
Appellant's
reliance on People v. Murdoch (2011)
194 Cal.App.4th 230 is misplaced. In
that case, even though the defendant was found competent several months before
trial, the Court of Appeal found that the trial court should have declared a
doubt as to defendant's competency once trial started. "In finding defendant competent to stand
trial, [the psychologist] stated in reference to the charged incident, defendant
'has an explanation for his behavior that is rational.'" (Id.
at p. 238.) Just before opening
statements, the defendant told the court that his defense was that the victim
and the witness were not human. When the
court told the defendant that he could ask the two individuals about their
criminal records, defendant replied that "shoulder blades are symbolic of
angelic beings," angels do not have shoulder blades and cannot shrug, and
all defendant needed to do was show that the two individuals could not
shrug. (Id. at p. 234.) During
trial, the only question defendant asked the victim was if he could shrug his
shoulders. The victim shrugged his
shoulders. Defendant asked no further
questions of him, and did not ask any questions of the other witness. (Id.
at p. 235.) Thus, the defendant had
changed his defense by the time trial started, from a rational to an irrational
one. He did not present a rational
defense. Thus, there was a change of
circumstances since the defendant was found competent.
This case
is different in two key respects from Murdoch,
supra. First, appellant's behavior
at the probation hearing was comparable to his behavior since being found
competent, and did not represent a change in circumstances. Second, appellant did present a rational
defense to the probation violation charge.
Thus, the reasoning of Murdoch
does not assist appellant.
It is clear
that some defendants may be mentally ill but at the same time understand the
nature of the proceedings against them and be able to assist in their own
defense. (People v.
1064.) That was the case here.
Disposition
The trial
court's order is affirmed.
ARMSTRONG,
J.
We concur:
TURNER,
P. J. MOSK,
J.
to the Penal Code unless otherwise indicated.
declared a doubt and defense counsel concurred.
