P. v. Verdugo

Filed 6/21/07 P. v. Verdugo CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Christian F. Thierbach, Judge. Affirmed.

Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Marissa Bejarano and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Gilbert Vincent Verdugo appeals from judgments entered following two trials resulting in (1) a jury conviction for grand theft (Pen. Code, 487, subd. (a)),^[1]with court findings that defendant suffered three prior serious and/or violent felony convictions and two prior prison terms ( 667, subds. (c) & (e), 667.5, subd. (b), 1170.12, subd. (c)) and (2) a court trial conviction for possession of a dirk, dagger, or sharp instrument by a prisoner ( 4502, subd. (a)), with admissions defendant suffered four prior serious and/or violent convictions ( 667, subds. (c) & (e), 1170.12, subd. (c)).

The court sentenced defendant to six years in prison for possession of a sharp instrument (shank), and to a consecutive prison term of 25 years to life for the grand theft conviction.

Defendant contends that in the shank case the trial court deprived him of his due process right to a fair trial because the People failed to preserve the shank, and the trial court erred in denying his motion to suppress his statements made to jail deputies without being advised of his Miranda (Miranda v Arizona (1966) 384 U.S. 436) rights. Defendant also argues the trial court lacked jurisdiction to hear both cases because there was substantial evidence defendant suffered from a developmental disability.

We affirm the judgment.

1. Loss of Evidence

Defendant contends the Peoples failure to preserve the shank for his trial deprived him of his due process right to a fair trial. Defendant claims the shank constituted exculpatory evidence since his defense was that the shank, a toothbrush, was not altered into the shape of a sharp instrument and thus could not have been used as a dirk or dagger.

A. Procedural Background

While conducting a maintenance inspection of defendants cell, Deputy Nelson discovered a toothbrush, of which the head was removed and the handle was sharpened to a point. The shank was wrapped in a towel in the sink.

Defendant went to trial twice on the charge of being in possession of the altered toothbrush. During the first trial, the toothbrush was entered into evidence. Deputies Nelson and Jude identified the toothbrush and described it during the first trial. The first trial ended in a mistrial due to defense counsel becoming ill. The prosecution took custody of the toothbrush after the trial.

By the time of the second trial, four years later, prosecution could not find the altered toothbrush. As a consequence, defendant moved to dismiss, arguing the prosecutions loss of the toothbrush would result in a violation of his rights to due process and confrontation. Defense counsel asserted that the toothbrush was needed in order to cross-examine Nelson effectively and to determine if the toothbrush was a sharp instrument within the meaning of section 4502.

The prosecutor opposed the motion, arguing that during the first trial deputies Nelson and Jude, and Investigator Bonamie identified and described the altered toothbrush, and were questioned at length about the altered toothbrush, including how it could have been created and the type of harm it could cause on an officer or inmate. The prosecutor asserted that, as in the first trial, Nelson could describe the altered toothbrush, and defendant could cross-examine him. The trial court agreed and denied defendants motion to dismiss, noting that the absence of the toothbrush diminished the strength of the prosecutions case.

During the second trial, Nelson testified he found the altered toothbrush in defendants sink, rolled up in a towel. Nelson described it as a toothbrush handle from a jail-issued toothbrush. It was four and three-quarters inches long, with the head removed and sharpened to a point. Nelson further stated he had training identifying weapons and devices manufactured by inmates. Nelson explained that, based on his experience, the altered toothbrush was either sharpened by filing it on the floor or walls of the cell or by using a razor blade from a shaving razor. Nelson said that when he discovered the altered toothbrush, he was concerned about the safety of everyone in the prison, including himself, other deputies, and inmates. He had seen similar items used by inmates to attack others in the prison.

Nelson testified he also found on the sink a dismantled razor blade in a cup. He then asked defendant when he had made the toothbrush shank. Jude was nearby with defendant, who was handcuffed. Defendant responded, I made it about a week ago. Nelson asked defendant what he planned to do with it. Defendant said, I plan to kill him, and moved his head in the direction of the adjacent cell, occupied by another inmate. Nelson placed the altered toothbrush into evidence that evening.

B. Applicable Law

Law enforcement agencies have a duty, under the due process clause of the Fourteenth Amendment, to preserve evidence that might be expected to play a significant role in the suspects defense. (California v. Trombetta (1984) 467 U.S. 479, 488, fn. omitted (Trombetta); accord, People v. Beeler (1995) 9 Cal.4th 953, 976.) To fall within the scope of this duty, the evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. [Citations.] (People v. Catlin (2001) 26 Cal.4th 81, 159-160; see also People v. Farnam (2002) 28 Cal.4th 107, 166, and Trombetta, supra, at pp. 488-489.)

The mere possibility that information in the prosecutions possession may ultimately prove exculpatory is not enough to satisfy the standard of constitutional materiality . . . . (Arizona v. Youngblood (1988) 488 U.S. 51, 56, fn. *; see also City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 8.)

On review, we must determine whether, viewing the evidence in the light most favorable to the lower courts finding as to the exculpatory value of the evidence, there was substantial evidence to support its ruling. (People v. Griffin (1988) 46 Cal.3d 1011, 1022; People v. Roybal (1998) 19 Cal.4th 481, 510.)

C. Analysis

Defendant has not shown that the lost toothbrush possessed any exculpatory value or that it would have played a significant role in defendants defense. Rather, as noted by the trial court, the toothbrush had strong inculpatory value.

Defendant states in his reply brief that the shape of the toothbrush was the sole issue and it formed the foundation of his defense. He claims the loss of the toothbrush undermined his ability to present a complete defense and deprived him of a fundamentally fair trial. Defendant asserted at trial that the toothbrush could not have been used as a dirk or dagger and it was not altered into the shape of a sharp instrument. On appeal, defendant argues that the toothbrush could not be replaced with comparable evidence. He had no comparable, alternative means of refuting government witnesses testimony about the shape of the toothbrush.

Defendant cites several federal cases, including United States v. Cooper (9th Cir. 1993) 983 F.2d 928 (Cooper), Griffin v. Spratt (E.D. Pa. 1991) 768 F.Supp. 153, reversed in part on other grounds, (3d Cir. 1992) 969 F.2d 16, Commonwealth of Northern Mariana Islands v. Bowie (9th Cir. 2001) 243 F.3d 1109, and Miller v. Vasquez (9th Cir. 1989) 868 F.2d 1116, for the proposition that the loss of the altered toothbrush requires dismissal of this criminal action. None of these cases constitutes binding authority in this case. Rulings of intermediate federal courts are merely persuasive and are not controlling authority. (People v. Bradley (1969) 1 Cal.3d 80, 86.)

Defendant complains in his reply brief that the People fail to address the persuasive authority of Cooper, supra. Cooper is inapposite, as are the other cases cited by defendant. In Cooper,the defendants were charged with offenses related to the manufacture of methamphetamine. The defendants operated a small chemical laboratory which they claimed was a legitimate lab used to manufacture various legal chemical products. The Drug Enforcement Agency seized their equipment and the prosecution failed to preserve it for trial. (Cooper, supra, 983 F.2d at pp. 929-930.)

At trial, there was conflicting testimony by prosecution and defense experts as to whether the lab equipment could be used for the manufacture of methamphetamine. One of the defendants testified the manufacturing vessel was a low-grade stainless steel and had rubber gaskets, which would be destroyed at the high temperatures required for methamphetamine manufacture. The defense expert also said he could not reach any firm conclusions without examining the equipment. (Cooper, supra, 983 F.2d at p. 930.) A prosecution witness testified he designed the vessel and specified a high grade stainless steel and no rubber gaskets. However, the expert also testified he did not know if the defendants vessel was built to specifications, and the defendants testified they purchased the vessel second hand and reconfigured it. (Id. at p. 931.)

The trial court ultimately granted the defendants motion to dismiss, and the federal court of appeals affirmed, holding that the governments bad-faith failure to preserve the laboratory equipment violated due process. (Cooper, supra, 983 F.2d at p. 932.)

Unlike in the instant case, in Cooper, supra,it was undisputed on appeal that the potential exculpatory value of the seized laboratory equipment was apparent before its destruction. It was also undisputed in Cooper that the police acted in bad faith by allowing the equipment to be destroyed. The only issue raised on appeal in Cooper was whether the defendants could reasonably obtain evidence comparable in value to the destroyed laboratory equipment. The court in Cooper concluded comparable evidence could not be provided. (Cooper, supra, 983 F.2d at p. 932.)

Here, testing of the lost toothbrush was not required since the substance or material of the lost toothbrush was not disputed. Also, there was no assertion the People acted in bad faith in losing the evidence. The issue in the instant case was whether the toothbrush was sharpened sufficiently that, when the altered toothbrush was booked into evidence, it was or should have been apparent that it might be expected to play a significant role in the suspects defense. (Trombetta, supra, 467 U.S. at p. 488, fn. omitted; see also People v. Cruz (1993) 16 Cal.App.4th 322, 325 (Cruz).)

The instant case is similar to Cruz, supra, in which the trial court dismissed a criminal action against the defendant for assault with a deadly weapon on the ground the police lost the knife allegedly used in the crime. (Cruz, supra, 16 Cal.App.4th at p. 325.) On appeal, the Cruz court reversed on the ground the knife was inculpatory, not exculpatory, evidence. (Ibid.)

The court in Cruz, supra, concluded that, although there was a dispute over the description and size of the knife, the knife was not the type of evidence a reasonable police officer should be expected to recognize as having apparent exculpatory value. (Cruz, supra, 16 Cal.App.4th at p. 325.) While the instant case involves a shank, rather than a knife, the case is sufficiently analogous to Cruz, since in both cases the lost evidence consisted of a weapon or a device that could be used as a weapon. (Ibid.)

Here, defendant failed to establish that a reasonable police officer could be expected to recognize that the toothbrush had exculpatory value. Nelson testified he found the altered toothbrush concealed in a towel, the head of the toothbrush had been removed, the tip of the handle had been filed to a point, and defendant had admitted that he had made the device and intended to use it to kill an inmate. In concluding the evidence was inculpatory, rather than exculpatory, the trial court noted that the absence of the altered toothbrush would result in a weaker case for the prosecution.

While producing the toothbrush would have established the degree of sharpness of the toothbrush, Discrepancies in descriptions are commonplace, and, at bottom, defendants are contending that a defendant would be entitled to a dismissal in any weapons case in which the weapon was lost. Nothing in Trombetta or Youngblood or any California case suggests such an extreme result. (Cruz, supra, 16 Cal.App.4that pp. 325-326, fn. omitted.)

Furthermore, here, there was evidence, apart from the altered toothbrush, establishing the altered toothbrush was a shank. Such evidence included Nelsons testimony concerning the circumstances of the discovery of the toothbrush and description of the toothbrush, along with the altered razor blade which defendant likely used to file down the tip of the toothbrush handle. Jude also observed the shank and was a potential witness. Defendant had the opportunity to cross-examine Nelson and call other witnesses who had observed the shank.

Viewing the evidence in the light most favorable to the lower courts findings and ruling, we conclude there was substantial evidence to support its ruling. We further conclude that the loss of the altered toothbrush was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) Defendants conviction was surely unattributable to the loss of the toothbrush, and thus its unavailability at trial was harmless. (Sullivan v. Louisiana (1993) 508 U.S. 275, 279, People v. Sakarias (2000) 22 Cal.4th 596, 625.)

2. Motion to Suppress Defendants Custodial Statements

Defendant contends the trial court erred in denying his motion to suppress his custodial statements in which he admitted he made the shank and intended to use it to kill another inmate. Defendant argues his motion should have been granted because his statements were made in custody and he was not advised of his Miranda rights.

Defendant made the statements after Nelson conducted a safety check of defendants cell and found the altered toothbrush. While Nelson was searching defendants cell, defendant sat on a bench just outside his cell in the adjacent day room. Defendant was handcuffed and accompanied by Deputy Jude, while Nelson and the maintenance worker were inside the cell.

Within five minutes of entering the cell, Nelson discovered the altered toothbrush. He walked to the cell door and, referring to the toothbrush, asked defendant in a normal voice, When did you make this? Nelson was about five feet from defendant, and Jude was standing by defendant, facing him. Defendant appeared calm. He responded, I made it about a week ago. Nelson asked him what he had planned to do with it. Defendant replied, I plan to kill him, motioning with his head in the direction of the occupant in the adjacent cell. Defendants tone of voice was calm, normal, as was Nelsons. While Nelson asked defendant about the toothbrush, Jude stood nearby, listening. Neither Nelson nor Jude was carrying weapons and Jude was not restraining defendant.

After asking defendant the two questions, Nelson resumed his safety inspection of defendants cell. Jude took possession of the altered toothbrush. When the maintenance employee finished replacing the light bulb and Nelson completed the safety check, defendant was placed back in his cell and the handcuffs were removed. Nelson and Jude then left.

Before defendants trial for possession of the altered toothbrush, his attorney moved to suppress his statements made to Nelson concerning the altered toothbrush on the ground he was not advised of his Miranda rights. Because the trial was a court trial, it was agreed among counsel and the court that the court would address the motion in the course of Nelsons examination during the trial. During the trial, Nelson testified that, when inmates leave their observation cells, they are not always handcuffed and, if they go to the day room and are the only inmate there, they are not handcuffed.

After defendant presented his defense, the trial court heard defendants motion to suppress. Defendant argued that at the time he made his statements, his freedom was restricted more than under normal procedures, and even if he was handcuffed and guarded pursuant to normal procedures, he should nevertheless have been apprised of his Miranda rights before Nelson questioned him about the altered toothbrush. In deciding the motion, the trial court addressed the four factors set forth in People v. Fradiue (2000) 80 Cal.App.4th 15 (Fradiue), discussed below, and concluded that there was no Miranda violation.

In determining whether a statement or confession is inadmissible because it was obtained in violation of a defendants Miranda rights, we accept the trial courts resolution of disputed facts and inferences, and its evaluation of credibility, if supported by substantial evidence. [Citation.] Although we independently determine whether, from the undisputed facts and those properly found by the trial court, the challenged statements were illegally obtained [citation], we give great weight to the considered conclusions of a lower court that has previously reviewed the same evidence. [Citations.] (People v. Wash (1993) 6 Cal.4th 215, 235-236; accord, People v. Cunningham (2001) 25 Cal.4th 926, 992.)

A defendant must be advised of his or her Miranda rights whenever he or she is in custody and is subjected to either express questioning or its functional equivalent. That is to say, the term interrogation under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. (Rhode Island v. Innis (1980) 446 U.S. 291, 300-301, fns. omitted.)

In Fradiue, supra, 80 Cal.App.4th 15, the court rejected the defendants Miranda challenge to statements the defendant made while in prison, without having been advised of his Miranda rights. (Fradiue, supra, at p. 21.) An internal administrative proceeding for a prison infraction was initiated after heroin was found in the defendants prison cell. A correctional officer went to defendants cell and informed him that the officer had been assigned to investigate the matter. The officer remained outside the cell during the 25 to 30 minute interview, while the defendant remained in his cell. During the interview, the defendant admitted he had possessed the drugs but denied drug trafficking. The defendant was thereafter charged with and convicted of possession of heroin in a state prison. (Id. at pp. 17-18.)

In holding that the interrogation was not custodial, the court in Fradiue initially acknowledged that when the interrogation occurs in a prison setting, the usual test of whether a person would have believed he was free to leave ceases to be useful. [Citation.] Obviously, the inmate is not free to leave. The question must therefore shift to whether some extra degree of restraint was imposed upon the inmate to force him to participate in the interrogation. Four factors are significant in this inquiry: (1) the language used to summon the inmate for questioning, (2) the physical surroundings of the interrogation, (3) the extent to which the inmate is confronted with evidence of his guilt, and (4) the additional pressure exerted to detain him. (Fradiue, supra, 80 Cal.App.4th at p. 20.)

In holding there was no Miranda violation, the court in Fradiue explained: To determine whether prison officials have applied an additional restraint, further restricting an inmates freedom and triggering Miranda warnings, courts must consider the totality of the circumstances surrounding the alleged interrogation. [Citation.] In our view, under the totality of the circumstances presented, no restraints were placed upon defendant to coerce him into participating in the interrogation over and above those normally associated with his inmate status. Hence, Miranda warnings were not required, and the trial court correctly rejected defendants motion to suppress his confession. (Fradiue, supra, 80 Cal.App.4that p. 21.)

Likewise, in the instant case, in considering the four Fradiue factors and viewing the totality of the circumstances surrounding Nelsons questioning of defendant about the toothbrush, we conclude the necessary indicia of a custodial interrogation are simply not present. First, Nelson did not summon defendant for questioning. Defendant was sitting outside his cell on a bench about five feet away from Nelson, when Nelson, who had just discovered the toothbrush in defendants cell, briefly asked defendant in a normal, calm tone of voice about the toothbrush.

Second, the physical surroundings of the interrogation were not unusually oppressive. The environment was not out of the ordinary for an inmate such as defendant, who was waiting for a maintenance worker to replace a light bulb. Defendant was sitting on a bench outside his cell, handcuffed, with a guard silently standing nearby, watching defendant while the maintenance worker and Nelson were in the cell. Neither Nelson nor Jude was carrying weapons or used or exhibited any threat of force.

Third, the extent to which defendant was confronted with evidence of his guilt was not extensive. Upon discovering the toothbrush, Nelson merely showed defendant the toothbrush and in a conversational tone, asked defendant when he made the shank and what he had planned to do with it. Defendants tone of voice in response was calm, normal, as was Nelsons, and nothing further was said concerning the toothbrush.

Fourth, there was no additional pressure exerted on defendant over and above his already existent confinement to prison. The evidence indicates that the manner in which defendant was confined when he made the statements in question was in accordance with normal prison procedures implemented when providing prison cell maintenance. Upon Nelson discovering the toothbrush and asking defendant about it, no additional pressure was exerted to detain defendant. He was already detained due to the need to change a light bulb in his cell.

Defendant argues that there was additional pressure to detain him because he was handcuffed while sitting in the day room with a guard watching him, whereas inmates were not normally handcuffed in the day room. But there was no evidence this was out of the ordinary under circumstances in which defendant was temporarily removed from his cell while a maintenance worker was changing a light bulb.

In evaluating the Fradiue factors and giving great weight to the findings of the lower court in applying the evidence to the Fradiue factors, we conclude Miranda warnings were not required, and the trial court correctly rejected defendants motion to suppress his confession.

3. Jurisdiction over Defendant

Defendant contends the trial court lacked jurisdiction to try defendant because there was substantial evidence he was developmentally disabled and therefore the criminal proceedings should have been suspended. Under such circumstances, defendant argues, the trial court erred in failing to appoint the director of the regional center for the developmentally disabled for an evaluation pursuant to section 1369.

Section 1369 sets forth trial court procedures for determining a defendants mental competence. The statute states that If it is suspected the defendant is developmentally disabled, the court shall appoint the director of the regional center for the developmentally disabled . . . or the designee of the director, to examine the defendant. ( 1369, subd. (a).) Section 1369 also requires the court to appoint one or more experts to examine the defendant ( 1369, subd. (a)), the introduction of evidence by the defendant and the People ( 1369, subds. (b), (c) & (d)), and the presentation of argument by each side thereafter ( 1369, subd. (e)).

Welfare and Institutions Code section 4512, subdivision (a) defines developmental disability as a disability that originates before an individual attains age 18 years, continues, or can be expected to continue, indefinitely, and constitutes a substantial disability for that individual. As defined by the Director of Developmental Services, in consultation with the Superintendent of Public Instruction, this term shall include mental retardation, cerebral palsy, epilepsy, and autism. This term shall also include disabling conditions found to be closely related to mental retardation or to require treatment similar to that required for individuals with mental retardation, but shall not include other handicapping conditions that are solely physical in nature. (Ibid.)

Here, there was no suggestion, let alone suspicion, that defendant was developmentally disabled when his attorney expressed doubt regarding defendants competence. Defendant contends that evidence of the following facts raised a suspicion that he was developmentally disabled: Defendant was born to an alcoholic and drug-addicted father; he attended special classes and had behavior problems in elementary schools; he only completed sixth grade; and defendant began abusing various substances as a child, including using marijuana beginning when he was 10 years old, using LSD beginning when he was 15, sniffing glue and carbon tetrachloride when he was younger, using alcohol heavily as a child, and using cocaine and methamphetamine, beginning at the age of 17. In addition, defendant was seen by a psychologist for incorrigibility because he had stabbed someone in the head with a pencil. He was placed in juvenile hall, Youth Authority, a boys home, and a foster home. He told court-appointed psychologist, Dr. Kania, during an interview in May 1999, that he had been depressed since he was 10 years old and had attempted suicide.

Defendant also argues the evaluation reports by Dr. Kania and Ladrina Moffatt, a clinical therapist with the San Bernardino Department of Behavioral Health, provided evidence raising a suspicion that defendant was developmentally disabled. Dr. Kania concluded in his report that defendant had educational deficits and his [s]ocial judgment shows evidence of chronic impairment. Insight is limited. Moffatt stated in her report that defendant acknowledged he had a mental illness, which included having audio and visual hallucinations. He reported that his condition interfered with his life and had not improved with medication. Moffatt concluded that defendant appears to have active symptoms of a psychotic disorder.

Defendant relies on the case of People v. Castro (2000) 78 Cal.App.4th 1402 (Castro), in support of his contention that the trial court was required to appoint the regional director to examine defendant under section 1369, subdivision (a). In Castro, judgment was reversed due to the trial courts failure to appoint the director of the regional center for the developmentally disabled to evaluate the defendant pursuant to section 1369. (Castro, supra, at pp. 1417-1418.) The Castro court concluded there was substantial evidence that raised a suspicion that the defendant was developmentally disabled. The evidence before the trial court included a declaration by defense counsel, a report from the California Department of Rehabilitation, documentation from schools and an evaluation of a doctor who found that the defendant had an overall IQ of 61 and a classification of mental retardation with neurological defects. (Id. at pp. 1411-1413, 1417.) Also, two psychiatrists described her as having an unspecified learning disability. (Id. at pp. 1411-1412.)

Here, there was not substantial evidence before the trial court that raised a suspicion that defendant was developmentally disabled. The record shows that on numerous occasions defendants criminal proceedings were suspended because his attorney asserted that defendant might be mentally incompetent but at no time did anyone claim that his mental incompetence was due to his being developmentally disabled, and there was no evidence of such a disability. Court proceedings were suspended in April 1999, February 2000, October 2000, January 2001, and March 2001. Each time the trial court appointed doctors to examine defendant, held competency hearings, and reinstated the criminal proceedings. No mention was made of a developmental disability.

The court-appointed doctors concluded defendant had mental problems but was ultimately competent to stand trial. Most of the doctors also concluded that defendant was malingering or feigning mental illness to some degree in order to avoid going to prison because he feared that, if he went to prison, he would be killed. While Dr. Kania stated in his report that defendant had educational deficits, this was stated in the context of the following paragraph in Dr. Kanias report: Mr. Verdugos cognitive functioning is essentially intact. His attention, concentration and comprehension are within normal limits. He appears to be of average intellectual ability, with educational deficits apparent. His memory for distant and recent events is intact. Social judgment shows evidence of chronic impairment. Insight is limited. Dr. Kania concluded defendant suffered from a hypomanic condition, most likely associated with a bipolar disorder, and from a personality disorder with antisocial features.

The evidence indicates defendant suffered from mental illness but there is no evidence of a developmental disability. The record indicates his educational deficits were from substance abuse and receiving only a sixth grade education. Unlike in Castro, here, despite numerous evaluations by court-appointed doctors, none of the doctors concluded that defendant had a developmental disability or that he was mentally retarded. Rather, the various experts reported that defendant was coherent, rational, and of average intellectual ability. In addition, the trial court granted defendants request to proceed in propria persona during sentencing. The court stated: Im satisfied that you have the ability to represent yourself. Theres certainly no mental issues here. Youre certainly a bright man. Youre capable.

Defendant has failed to establish that the trial court was presented with sufficient evidence to raise a suspicion that defendant suffered from a developmental disability. We thus conclude the trial court was not required to suspend the criminal proceedings and have defendant evaluated for a developmental disability. In turn, the trial court had jurisdiction over defendants criminal proceedings.

4. Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Hollenhorst

J.

We concur:

s/Ramirez

P. J.

s/King

J.

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^[1] Unless otherwise noted, all statutory references are to the Penal Code.