P. v. Hill
Filed 11/4/13 P. v. Hill CA2/4
NOT TO BE PUBLISHED IN THE
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Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
TONY LEE HILL,
Defendant and Appellant.
B243919
(Los Angeles County
Super. Ct. No. YA078617)
APPEAL
from a judgment of the Superior Court of
County, Steven R. Van Sicklen, Judge.
Affirmed.
Michele
A. Douglass, 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, Assistant Attorney General, Lawrence M. Daniels and
Connie H. Kan, Deputy Attorneys General, for Plaintiff and Respondent.
introduction
A
jury convicted defendant Tony Lee Hill of second
degree robbery (Pen. Code, § 211)
suffered nine prior convictions of serious or violent felonies or juvenile
adjudications (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and had served
one prior prison term (§ 667.5, subd. (b)). The trial court sentenced defendant to 25
years to life in state prison,
striking the prior prison term allegation.
During
the course of the proceedings, the trial court declared a doubt as to
defendant’s competence to stand trial (§ 1368), pursuant to defense counsel’s
request. After reviewing psychiatric
evaluations of defendant, it concluded he was competent. Thereafter, defense counsel repeatedly
declared a doubt as to defendant’s competence but the trial court refused to
hold a second competency hearing. On appeal, defendant argues this constituted
reversible error.
In
addition, defendant requested pro. per. status on the day trial commenced. The trial court denied that request as
untimely. Defendant argues on appeal
that the trial court erred in finding the request untimely because defendant
did not request a continuance. We disagree with both contentions
raised by defendant and therefore affirm the judgment. In addition, we have reviewed at defendant’s request the sealed transcript of the trial court
proceedings on his Pitchess
failed to provide him with all discoverable information. We find no error in the trial court’s
handling of those proceedings.
factual
background
We
only briefly recount the facts underlying the offense at issue because the
details are not relevant to the issues on appeal. On July 14, 2010, defendant went into a
convenience store wearing a mask and pointing his finger inside his shirt to
mimic a gun, and told the clerk, Muzzamil Syed, “it’s a robbery.†When Syed objected, defendant pulled off the
mask and said he was kidding. On July
16, 2010, defendant returned to the store and again simulated holding a gun
under his shirt. Syed told defendant to
leave, but defendant said he was really going to rob him and cut the telephone
cord. Syed used his cell phone to call
the police. Defendant pushed Syed and
left with the cash register, driving away in a black truck. The store’s surveillance camera recorded
these events.
Officers
from the Torrance Police Department responded to the scene. They spotted defendant in his black truck nearby
and followed him. Defendant pulled over,
but after additional units arrived he sped away, pursued by the police. He drove erratically then crashed into a stop
sign. Defendant ran from the scene but
was soon apprehended. He yelled, said he
was sorry, and looked tired.
Defendant
was placed in a patrol car. He said, “I
did it. I’m going to jail for the rest
of my life.†The police officer turned
on a recording device and recorded defendant confessing to the crime. After returning to defendant’s truck, the
officer removed defendant from the car to be viewed by Syed, who had been
brought to the scene. Defendant said,
“Why do this? I’m telling you I did it.†Syed identified defendant and his truck. The cash register was recovered from
defendant’s truck. Defendant did not
appear to be under the influence of drugs.
Defendant
testified that on both July 14, 2010, and July 16, 2010, he was under the
influence of drugs. He knew what he was
doing was wrong but he could not control himself. He said he had been addicted to crack cocaine
for three and one-half months prior to the offense.
Dr.
Rodica Predescu, a substance abuse expert, said cocaine affects a person for
about 15 minutes to an hour, initially making them feel euphoria, sometimes
followed by deep depression and self-destructive behavior. After listening to the audiotape of
defendant’s police interview, Dr. Predescu opined defendant sounded more
depressed than high on cocaine. She did
not know whether defendant had ingested cocaine that night.
PROCEDURAL
background
At
the arraignment on September 2, 2010, the court asked defense counsel if he was
declaring a doubt as to defendant’s competence.
Counsel was not ready to do so but had begun the process of having an
expert appointed to examine defendant. A
Marsden
the public defender had not come to see him or kept him informed. Counsel explained he had told defendant at
the preliminary hearing he wanted to appoint a psychiatrist to evaluate him for
competency and regarding issues relevant to his defense. The court denied the motion to replace
counsel.
On
September 28, 2010, defendant again complained about counsel, telling the court
that everything his attorney said was a lie and that he wanted to file charges
against him for obstruction of justice.
Defendant’s Marsden motion was
denied, although a new public defender would be appointed because the prior one
was leaving the office.
On
December 15, 2010, another Marsden hearing
was held. Defendant told the court a
350-pound police officer who assaulted him had been present in the courtroom
during defendant’s last appearance, and sat at the counsel table with his back
to defendant. He believed his counsel
knew the officer would be in court but failed to tell him. Defendant told the court he had filed
documents with the Court of Appeal and the FBI alleging discrimination and
racism, and an internal affairs complaint as well as a civil action against the
police officers who arrested him.
Competency Hearing
The
court held another Marsden hearing at
defendant’s behest on January 25, 2011.
He told the court he had filed habeas corpus writs with this court and
had contacted the United States Attorney General regarding his case. The court denied the request. On that same date, defense counsel declared a
doubt as to defendant’s competence. The
court agreed and suspended the criminal proceedings. The court appointed Dr. Douglas Allen for the
defense and Dr. Suzanne Dupee for the prosecution to examine defendant and
report on his competency.
Dr.
Allen reported on March 15, 2011, that defendant was not competent, based on
his inability to rationally assist in his defense. He believed defendant might suffer from a
mood disorder, possibly bipolar disorder with psychotic features, and that this
interfered with his reasoning abilities.
Defendant demonstrated paranoid delusional thinking. Dr. Allen felt defendant could be
stabilized in a structured mental health facility with the use of psychotropic
medication.
Dr.
Dupee reported on March 16, 2011, that defendant was competent to stand
trial. She found him to be pleasant,
polite, and cooperative. His speech was
normal in rate and rhythm, and he established a good rapport with her. His thoughts were linear, logical, and
goal-directed. She found no evidence of
psychosis, mania, or depressive, anxious, obsessive, or compulsive
symptoms. His insight and judgment were
good, and he was grossly cognitively intact.
The
court appointed a third psychiatrist, Dr. Ronald Markman. Dr. Markman reported that he found defendant
competent to stand trial and “has the capacity to cooperate with counsel in a
rational manner in his defense, if he chooses to do so.†Defendant was cooperative and responsive, oriented
and alert, and gave relevant and coherent responses. His memory and concentration were unimpaired,
and his affect was appropriate. His
judgment was adequate, although he possessed limited insight into his situation. He found no evidence of psychosis or thought
disorder. He believed defendant suffered
from antisocial personality disorder and cocaine dependence. Dr. Markman recommended outpatient treatment
with a psychiatrist to deal with underlying psychiatric issues and a 12-step substance
abuse program.
The
matter was heard on April 21, 2011.
Having considered the three reports, the trial court found defendant
competent to stand trial and reinstated criminal proceedings.
A
sixth Marsden hearing took place on
June 2, 2011. Defendant said his
attorney was not bringing the relevant facts of his case to light and argued he
should not be charged with robbery, essentially saying he took money from the
business, not from the cashier. Defense
counsel explained defendant was attempting to file a lawsuit against the
Torrance Police Department arising out of their mistreatment of him in this
case, which could support a motion for change of venue. She said she had discussed the nature of the
robbery charge with him. The trial court
denied defendant’s Marsden motion.
Defendant,
represented by a new public defender, brought a seventh unsuccessful
was conspiring with the prosecutor and the court due to racism and to protect
the four arresting officers who had assaulted him. He stated in some detail the names of the
arresting officers and what transpired when he was arrested, again argued the
facts of the case did not support robbery, and objected to counsel’s handling
of his Pitchess motion. He believed the jury was going to be paid to
convict him. He said he had contacted
the Court of Appeal, the Commission on Judicial Performance, the State Bar, the
Department of Justice, and the FBI to help him.
On
August 10, 2011, defendant brought his eighth unsuccessful Marsden motion. He told the
court his attorney had intentionally started an argument with him during a
video conference. He sent a complaint to
the United States Department of Justice and the FBI requesting an investigation
and demanding his attorney’s arrest based on her lying to his family and
obstructing justice. He claimed she had
altered portions of the audio and video on the videotape taken at the
convenience store on July 16, 2010. Defense
counsel informed the court that it was extremely difficult to communicate with
defendant.
II. The Second Declaration of Doubt
Regarding Defendant’s Competency
On
August 17, 2011, defense counsel declared a doubt as to defendant’s competency,
saying he was unable to assist in his defense.
She had played an audio recording for him and asked him numerous times
to stop talking to himself and listen to the recording, but he had difficulty
focusing. Counsel restarted the
recording several times until finally defendant said he did not need to hear
any more, and refused to communicate further.
Defendant became fixated on irrelevant points and could not be persuaded
to move on. Counsel expressed concern at
the paranoia defendant exhibited. He
believed she had altered the videotapes and could not be dissuaded from that
belief. The court declared a doubt as to
defendant’s competency and suspended the criminal proceedings. The court appointed Dr. Kaushal Sharma for the
prosecution and Dr. Gordon Plotkin for the defense to examine defendant
and report on his competency.
On
January 4, 2012, defense counsel filed a motion to disqualify Judge James R.
Brandlin (Code Civ. Proc., § 170.6), and the case was transferred to Judge
Victor L. Wright.
On
February 10, 2012, the prosecution filed a motion seeking reinstatement of the
criminal proceedings. The prosecutor
argued that defendant had failed to provide sufficient evidence that a
substantial change in his mental state had occurred and he was therefore not
entitled to a second competency hearing.
The
trial court held a hearing on March 20, 2012, to determine whether there had
been changes in defendant’s circumstances to justify holding a second section
1368 hearing to determine competency. Dr.
Kaushal Sharma had submitted a report dated September 12, 2011, concluding that
defendant was competent. He opined
defendant was suffering from “institutional paranoiaâ€â€”Dr. Sharma’s own
descriptive term and not a diagnosis—indicating defendant did not trust anyone
in the legal system, but that he was not suffering from an identifiable mental
disorder. Rather, Dr. Sharma stated that
defendant’s psychotic-type symptoms were exemplary of a longstanding antisocial
personality disorder, making him likely to be disruptive and demanding in court,
and to make farfetched requests and bizarre comments when his requests were not
met. Defendant insisted he was unjustly
kept in jail and instead he should be in a drug diversion program. Defendant told Dr. Sharma he had won $100,000
in a lawsuit for false imprisonment but had used most of the money on
drugs. His success in that lawsuit
amplified his sense that everyone else is wrong and he is right, and if they
disagree with him he wants to sue them.
Dr. Sharma predicted defendant could be boisterous, loud, demanding, and
intrusive, and blame everyone else for his misfortunes, because he perceives a
sense of entitlement when things are not going his way.
At
the hearing, the prosecutor asserted that defendant was “playing crazy†in
order to delay the proceedings. Defendant
had been recorded stating to a friend during a telephone call, “No, no, okay,
okay, they want me to play crazy because they mad I been filing all these
complaints with the FBI. They said if I
do that, I do three years in state hospital or in Patton State Hospital. I can be released and all the charges would
be dismissed. Do you want me to do
that?â€
Dr.
Plotkin, who evaluated defendant on February 2, 2011, September 26, 2011, and
March 19, 2012, testified that defendant understood the nature of the
proceedings against him, and further understood what would happen if he were
found to be incompetent. Dr. Plotkin
nonetheless found defendant to be incompetent because defendant was unable to cooperate
with his attorney. Defendant exhibited
prominent paranoid delusions that his attorney was conspiring against him. In his report dated September 30, 2011, Dr.
Plotkin stated defendant had irritable affect and paranoia that appeared to be
an endogenous illness such as schizophrenia. At the hearing, Dr. Plotkin stated that
defendant continued to suffer from the same disorder as previously diagnosed,
but said that “its volume ha[d] ra[t]cheted up a little bit.†Dr. Plotkin noted that the statement defendant
made about “play[ing] crazy†over the telephone indicated he understood what
would happen if he were found incompetent, but opined that this did not signify
anything regarding his delusions, the existence of which was the reason Dr. Plotkin
believed he was incompetent.
The
trial court took the matter under submission. Defendant addressed the court on April 18,
2012, making a ninth unsuccessful Marsden
request to replace his counsel and engaging in a lengthy description of his
belief that his counsel was conspiring against him with the prosecutor and the
police department, and had fabricated and destroyed videotaped evidence. Counsel provided the court with a similarly
comprehensive recitation of the facts regarding her representation of
defendant.
On
April 18, 2012, the court issued a statement of decision denying the defense
request for a new section 1368 hearing.
The court found there was no change in circumstances to justify holding
new section 1368 proceedings. The court
indicated it had reviewed the court file, Dr. Plotkin’s testimony and reports,
and the reports submitted by Drs. Sharma, Markman, Allen, and Dupee. The court noted its ruling was also based on
its observations of defendant, as well as the court’s experience as a judicial
officer and working in the Los Angeles County Jail in the past. The court found that defendant understood the
nature of the proceedings and could cooperate with counsel. However, defendant “makes a concerted effort
to display a disruptive attitude, and disrespectful manners toward the Court, his
counsel, and the prosecution, particularly when [he] does not obtain his
desired outcome at any stage.†He
“excels at acting out, at being disruptive, and at being uncooperative when he
cannot control a situation.†The court
concluded his behavior was not due to a psychological disorder but instead
stemmed from his antisocial background and “from a sense o[f] entitlement.†The court ordered the criminal proceedings
reinstated.
III. The Pretrial Conference
On
July 13, 2012, the matter was called for a pretrial hearing. Defense counsel informed the court that a
psychiatrist she had enlisted to assist in preparation of the defense case had elected
to perform a competency evaluation on defendant, and found him to be psychotic. Defense counsel also told the court that she
had visited defendant recently and he had refused to speak to her. She argued this represented a change in
circumstances because previously he would speak to her. Specifically, defense counsel had requested
the appointment of Dr. Jack Rothberg to address defense issues but upon meeting
defendant Dr. Rothberg decided to perform a competency evaluation. Dr. Rothberg concluded defendant was
psychotic, incompetent, and in need of medication. The court indicated it wanted to review Dr. Rothberg’s
report. Defendant interrupted and asked
for a change of venue. The court replied
that this request was further evidence that defendant was attempting to
manipulate the system. When defendant
persisted in speaking after the court asked him to stop, the court removed
defendant from the courtroom. Defendant
said, “I can’t believe you, a Black man.
Wow. Working for the KKK.â€
On
July 24, 2012, the court held another hearing to consider Dr. Rothberg’s
report. Dr. Rothberg indicated he found
it “impossible to discuss the facts of the case†with defendant, as defendant
kept insisting that he should be exonerated because he was on crack cocaine and
therefore not responsible for his actions. Defendant was unable to engage in rational
discussion, and was paranoid and delusional.
His general intellectual functioning was grossly impaired by psychosis,
and Dr. Rothberg saw evidence of a thought disorder. Dr. Rothberg believed defendant would likely
be rendered competent to stand trial if treated with anti-psychotic medication
but it would likely have to be administered against defendant’s will because he
lacked the capacity to make a decision about medication. After the court reviewed Dr. Rothberg’s
report, defense counsel asked the court to declare a doubt as to defendant’s
competence. The court refused, finding
that defendant was attempting to manipulate the system and that he was capable
of cooperating with counsel if he chose to do so.
On
July 30, 2012, defense counsel stated for the record her continuing belief that
defendant was incompetent. The court
deemed the defense ready for trial and proceeded. The court held yet another
objected to his counsel’s failure to call a particular doctor as an expert witness
on his behalf. The court responded that
it would not permit defendant to hijack the court proceedings. It encouraged defendant to choose to
cooperate with his counsel, and denied the Marsden
motion.
IV. The Trial
The
matter was transferred to Judge Steven Van Sicklen’s courtroom for trial on
July 31, 2012. Defense counsel
reiterated her belief that defendant was incompetent to stand trial. The court noted that defendant’s competence
had been recently adjudicated and declined to revisit the issue. Defendant requested another
of conspiracy, destruction and fabrication of evidence, and police misconduct. The court denied the motion.
Later
that day, during an evidentiary hearing, defendant disagreed with his counsel’s
tactics and said she was lying. He then
asked to represent himself, which request was denied as untimely. Shortly thereafter he repeated his request,
and the court again denied it.
Trial
proceeded. On August 8, 2012, defendant
again asked to represent himself. The
court again denied the request as untimely. Defense counsel reiterated her belief that
defendant was incompetent to stand trial. The trial court disagreed, observing that
defendant knew exactly what he was doing. Prior to closing arguments that day, defendant
told the jury that the preliminary hearing transcript showed the victim knew
defendant was under the influence of cocaine during the robbery, and that his
attorney was conspiring against him. The
court excluded defendant from the courtroom.
Defense counsel moved to have defendant declared incompetent, and also
for a mistrial. The trial court denied
both motions, stating that defendant’s outburst was calculated and demonstrated
that he was quite competent. Defendant
refused to return to the courtroom.
During
the sentencing hearing, defense counsel once again argued defendant’s
incompetency. However, the trial court
found that defendant had “willfully chose[n] to be noncooperative.â€
This
appeal from the judgment of conviction followed.
discussion
I. The Court’s Refusal to Hold a Second Competency
Hearing
Due
process prohibits trying or convicting a defendant who is mentally incompetent.
(People
v. Rogers (2006) 39 Cal.4th 826, 846.) “A defendant is mentally incompetent . . . if,
as a result of mental disorder or developmental disability, the defendant is
unable to understand the nature of the criminal proceedings or to assist
counsel in the conduct of a defense in a rational manner.†(§ 1367, subd. (a).) “It shall be presumed that the defendant is
mentally competent unless it is proved by a preponderance of the evidence that
the defendant is mentally incompetent.â€
(§ 1369, subd. (f).)
While
a defendant is presumed mentally competent (§ 1369, subd. (f)), due process
requires that the trial court conduct a full competency hearing when the
accused presents substantial evidence of incompetence. (People
v. Jones (1991) 53 Cal.3d 1115, 1152 (Jones).) “Evidence is ‘substantial’ if it raises a
reasonable doubt about the defendant’s competency to stand trial.†(Moore
v. United States (9th Cir. 1972) 464 F.2d 663, 666.) “At the request of the defendant or his or
her counsel or upon its own motion, the court shall recess the proceedings for
as long as may be reasonably necessary to permit counsel to confer with the
defendant and to form an opinion as to the mental competence of the defendant
at that point in time.†(§ 1368, subd.
(a).)
However,
“[w]hen a competency hearing has already been held and the 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.]†(
“[O]nce a defendant has been found to be competent, even bizarre
statements and actions are not enough to require a further inquiry.†(People
v. Marks (2003) 31 Cal.4th 197, 220; see also People v. Ramos (2004) 34 Cal.4th 494, 508.)
The
question here is whether a substantial change of circumstances or new evidence
came to light after the first competency hearing in March 2011, such that the trial
court abused its discretion by refusing to hold a second competency
hearing. We note that although in March
2012 Judge Wright revisited Judge Brandlin’s prior decision (made in Aug. 2011)
to hold a second competency hearing, defendant does not argue that this was
error. He does not assign as error Judge
Wright’s conclusion on April 18, 2012, that there was no change in
circumstances to justify holding new section 1368 proceedings. Rather, he argues that when defense counsel
presented new evidence (Dr. Rothberg’s evaluation) and again declared a
doubt, and the court held a hearing to consider the issue on July 24, 2012, the
ensuing July 30, 2012 order by Judge Wright concluding there was no substantial
change in circumstances to justify holding a second competency hearing
constituted an abuse of discretion. Defendant
contends that Judge Van Sicklen’s refusal to reconsider the issue when it was
assigned to his court for trial the following day also was error.
In
considering whether there was evidence of a substantial change of circumstances
or new evidence which cast a serious doubt on the validity of the trial court’s
initial finding of competence, the trial court considered Dr. Rothberg’s
report, defense counsel’s claim that defendant entirely refused to communicate
with her, the court file, all of the previous reports, defendant’s statement
about “play[ing] crazy,†the court’s own prior experience with competency
matters, and its personal observations of defendant. Regarding the latter, the trial court had
observed defendant’s behavior on numerous occasions. Defendant had addressed the court directly
during 10 Marsden motions, five of
which took place before the prior trial judge (Judge Brandlin) found defendant
competent to stand trial, two of which occurred before defense counsel filed a
motion to disqualify Judge Brandlin, and two of which occurred before Judge
Wright determined that a change in circumstances or new evidence had not been
presented to justify holding a second competency hearing. Thus, the court had ample opportunity to
observe and interact with defendant, and appropriately took its personal
observations into account in determining whether there had been a significant
change in the defendant’s mental state. (
The
court fully considered the written report by Dr. Rothberg in which he found
defendant to be psychotic, incompetent, in need of medication, and a danger to
himself because his behavior was likely to be misinterpreted by others who
would in turn react against him. Dr.
Rothberg indicated he found it “impossible to discuss the facts of the caseâ€
with defendant, as defendant kept insisting that he should be exonerated
because he was on crack cocaine and therefore not responsible for his actions. Defendant was unable to engage in rational
discussion, and was paranoid and delusional.
His general intellectual functioning was grossly impaired by psychosis,
and Dr. Rothberg saw evidence of a thought disorder. Dr. Rothberg believed defendant would likely
be rendered competent to stand trial if treated with anti-psychotic medication.
These
same things were said of defendant previously, that he was delusional,
paranoid, and unable to assist in his defense.
Dr. Plotkin had similarly found in March 2011 that defendant had a major
mental disorder and in March 2012 that defendant suffered from prominent
paranoid delusions, possibly due to schizophrenia. In his report dated September 30, 2011, Dr.
Plotkin had stated defendant had irritable affect and paranoia that appeared to
be an endogenous illness such as schizophrenia. At the hearing in March 2012, Dr. Plotkin
stated that defendant continued to suffer from the same disorder as previously
diagnosed, but said that “its volume ha[d] ra[t]cheted up a little bit.â€
Although
defendant argues on appeal that Dr. Rothberg’s evaluation demonstrated that
defendant’s condition had deteriorated significantly, we find no abuse of
discretion in the trial court’s disagreement with that characterization of the
report and conclusion that a substantial change in circumstances had not been
shown. Defendant had grown increasingly
more uncooperative and irritable as trial approached, but that is readily
explained by the fact that his attempts to manipulate the proceedings were
failing and he was on the verge of standing trial. He continued to insist that he should be
exonerated because he was on crack cocaine when he committed the offense,
refusing to accept that this was not a relevant defense. He persisted in accusing the legal system of
conspiring against him. As Dr. Sharma
stated, he was certainly exhibiting institutional paranoia and distrust of the
legal system, but that his psychotic-type symptoms were exemplary of a
longstanding antisocial personality disorder and sense of entitlement, not due
to an identifiable mental disorder. Dr.
Sharma presciently stated that defendant’s antisocial behavior made him likely
to be disruptive and demanding in court, and to make farfetched requests and
bizarre comments when his requests were not met.
Agreeing
with Dr. Sharma’s evaluation of defendant, the court refused to declare a doubt
as to defendant’s competency, finding that defendant was attempting to
manipulate the system and that he was capable of cooperating with counsel if he
chose to do so. The court noted that
defendant was cooperative when he got what he wanted and uncooperative when he
did not. The trial court was in the best
position to judge defendant’s conduct and to evaluate whether his conduct had
changed over time, and we will not interfere with the court’s decision where no
abuse of discretion has been shown. (
691, 727, disapproved on another ground in Price
v. Superior Court (2001) 25 Cal.4th 1046.)
Defendant
argues that this case is similar to People
v. Melissakis (1976) 56 Cal.App.3d 52 (Melissakis),
in which the appellate court concluded the trial court abused its discretion
when it found no substantial change in circumstances to justify holding a
second competency hearing. We conclude,
however, that this case is readily distinguishable from Melissakis.
In
undergone examinations by two psychiatrists and was found sane. Several months later the trial court ordered
the doctors to reexamine defendant to determine his present sanity to stand
trial. One doctor found he was “laboring
under a ‘delusional system’ and expressed the opinion that appellant was not
capable of trusting another person sufficiently to present an adequate
defense.†(Melissakis, supra, 56
Cal.App.3d at p. 56.) The trial court
ordered a hearing and appointed a third doctor to examine appellant; the latter
found no evidence of any significant mental illness. The court found appellant sane and the matter
proceeded to trial. On the third day of
trial appellant requested the court to subpoena for his defense two issues of
Playboy magazine, certain newspaper articles, and various individuals; he
informed the court that he wanted to prove that certain organizations had put
him in fear for his life and that this in turn resulted in the incident for
which he was standing trial. He also said
that a women’s liberation organization was involved with the military in
conspiring against him. Appellant’s
trial counsel requested the court reconsider appellant’s present sanity and his
ability to stand trial, but the court denied the request and ordered the trial
to continue. (Id. at p. 57.) Appellant
then testified that a year earlier he became suspicious that a conspiracy was
being perpetrated against him by various organizations (narcotics agents, the
FBI, military intelligence, a women’s liberation organization, police officers,
and various workmen), that he was under constant surveillance, and that these
groups were attempting to frighten him and physically attack him. A jury found him guilty of assault with a
deadly weapon. Thereafter, during a
hearing on appellant’s sanity, the two doctors who previously found him sane
recanted their earlier beliefs that appellant had no discernable psychiatric
problem. They agreed with the third
doctor that appellant suffered from paranoid schizophrenia. (Id.
at p. 59.) Nonetheless, the jury found
appellant sane at the time of the offense and found him guilty. He appealed, arguing that the judge did not
comply with section 1368 when it became apparent during trial that he likely
was incapable of understanding the nature of the proceedings or unable to
cooperate with his counsel in presenting a rational defense. (Ibid.)
In reversing
the judgment, the appellate court stated that when the trial court found
appellant sane, there also was substantial evidence to support the contrary
conclusion, and the factors which came to light at the beginning of and during
trial “completely undermined the medical opinions upon which the present sanity
finding was predicated.†(
responsibility to make proper inquiry regarding a defendant’s capacity to stand
trial or to understand the nature of the sentencing procedure by relying solely
upon a pretrial decision or pretrial psychiatric reports where, during the
trial or prior to the sentencing, he is presented with a substantial change of
circumstances or with new evidence which casts a serious doubt upon the
validity of the pretrial finding of present sanity. (Cf. People
v. Munoz (1974) 41 Cal.App.3d 62, 66; In
re Miller (1973) 33 Cal.App.3d 1005, 1021; People v. Groce (1971) 18 Cal.App.3d 292, 296-297.)†(Melissakis,
supra, at p. 62.)
The
appellate court stressed that it was not second-guessing the trial judge: “If the trial judge had conducted a hearing
on the present sanity issue, and on the basis of medical testimony or other
evidence presented at the hearing had determined that appellant presently was
sane, we would not have disturbed his decision. Here the trial judge made no inquiry of any
kind into appellant’s mental capacity to stand trial or to understand the
sentencing procedure, despite the fact that there were ample reasons, in
addition to appellant’s bizarre testimony, for renewing the inquiry. For example, even the doctors who testified
for the People admitted that they were not aware that appellant had any
significant mental illness or that he was suffering from an insane delusion
until they heard him testify; yet, they were not asked whether the newly gained
information had any effect on their earlier opinions that appellant was able to
understand the proceedings in which he was involved and to cooperate with his
counsel in the presentation of a rational defense. It is this failure to perform an important
judicial function, not what may have resulted from a second hearing, that
mandates the reversal.†(
In
distinct contrast, in the case before us Dr. Rothberg’s report essentially
reiterated what Dr. Plotkin had previously found. Defendant continued to act as he had before, making
the same accusations that his attorney was conspiring against him and had
altered evidence, and arguing that he should be exonerated because he was high
on cocaine when he committed the offense.
This was nothing new. He chose to
be obstreperous rather than cooperate with his attorney, but that too was
precisely the same behavior he had previously exhibited. Significantly, unlike in Melissakis, none of the experts who determined defendant was
competent to stand trial changed his opinion.
We
conclude defendant failed to provide the court with substantial evidence of a
substantial change in circumstances or new evidence that would cast a serious
doubt on the validity of the previous finding of competence. We therefore find no error in either Judge
Wright’s or Judge Van Sicklen’s refusal to hold a second competency
hearing.
II. Denial of Faretta Motions
Defendant
next contends that the trial court erred when it denied his request, made after
the start of trial, to represent himself.
He argues that because the request was not accompanied by a request for
a continuance, the court erred in refusing to allow it. We disagree.
On
July 31, 2012, following a Marsden
hearing and just prior to jury selection on day eight of ten, defendant said,
“I would like to go pro per, Your Honor.â€
The court denied the motion as untimely. Shortly thereafter he repeated his request,
and the court again denied it. Defendant
again asked to represent himself on August 8, 2012, and the court again denied
the request as untimely.
In
836 (Faretta), the United States
Supreme Court held that a defendant in a state criminal trial has a federal
constitutional right to represent himself or herself without counsel if he or
she voluntarily and intelligently elects to do so. As relevant here, the California Supreme Court
has described the right to self-representation under Faretta as conditional: “A
trial court must grant a defendant’s request for self-representation if the
defendant unequivocally asserts that right within a reasonable time prior to
the commencement of trial, and makes his request voluntarily, knowingly, and
intelligently. [Citations.] As the high court has stated, however, ‘
clear that the right of self-representation is not absolute.’ [Citations.]†(People
v. Lynch (2010) 50 Cal.4th 693, 721 (Lynch),
overruled on another ground in People v.
McKinnon (2011) 52 Cal.4th 610, 636-638.) A Faretta
motion thus may be denied if the defendant is not competent to represent himself
or herself, is disruptive or engages in misconduct that seriously threatens the
integrity of the trial, or if the motion is made for the purpose of delay. (Lynch,
supra, at pp. 721-722.) Likewise, our Supreme Court has long held that
a self-representation motion may be denied if it is untimely. (Id.
at p. 722.)
“Under
[People v. Windham (1977) 19 Cal.3d
121, 127-128 (Windham)], a motion is
timely if made ‘a reasonable time prior to the commencement of trial.’ [Citation.]†(Lynch,
supra, 50 Cal.4th at p. 722.) Neither the United States Supreme Court nor
our Supreme Court has articulated a bright line rule with respect to the
timeliness of a Faretta motion. In general, courts have held that
are untimely. (Id. at p. 723, citing cases.) Conversely, such motions made months before
trial have been considered timely. (
pertinent considerations may extend beyond a mere counting of the days between
the motion and the scheduled trial date.†(Ibid.) The factors to be considered by the court in assessing such
requests made after the commencement of trial are “the quality of counsel’s
representation of the defendant, the defendant’s prior proclivity to substitute
counsel, the reasons for the request, the length and stage of the proceedings,
and the disruption or delay which might reasonably be expected to follow the
granting of such a motion.†(
Moreover,
“a trial court may consider the totality of the circumstances in determining
whether a defendant’s pretrial motion for self-representation is timely. Thus, a trial court properly considers not
only the time between the motion and the scheduled trial date, but also such
factors as whether trial counsel is ready to proceed to trial, the number of
witnesses and the reluctance or availability of crucial trial witnesses, the
complexity of the case, any ongoing pretrial proceedings, and whether the
defendant had earlier opportunities to assert his right of self-representation.â€
(Lynch,
supra, 50 Cal.4th at p. 726.) “An analysis based on these considerations is
in accord with the purpose of the timeliness requirement, which is ‘to prevent
the defendant from misusing the motion to unjustifiably delay trial or obstruct
the orderly administration of justice.’ [Citation.]†(Id.
at p. 724.)
The
trial court was not required to explicitly cite the Windham factors or state its reasons for denying an untimely
request for self-representation. (
129, fn. 6; People v. Bradford (2010)
187 Cal.App.4th 1345, 1354.) A trial
court’s denial of an untimely Faretta
motion is properly affirmed if substantial evidence supports the inference that
the court had the Windham factors in
mind when it ruled. (
defendant did not explicitly request a continuance, the court was nonetheless
entitled to consider the Windham
factors. (Id. at 1355.)
Here,
we conclude that the trial court properly rejected defendant’s untimely request
to represent himself for two primary reasons:
(1) the trial court had reason to believe the request was made by
defendant in order to obstruct the orderly administration of justice, and given
defendant’s behavior that would be the inevitable outcome of granting his
request for self-representation, and (2) the request was equivocal in that the
court had reason to believe it was made solely for purposes of delay.
Implicit in
the trial court’s denial of the request as untimely is the fact that
significant disruption might reasonably have been expected to follow the
granting of defendant’s motion. (
supra, 50 Cal.4th at p. 722, fn.
10.) Defendant had been continuously
disruptive and refused to follow the basic rules of courtroom etiquette. Had he been allowed to take over his own
representation, the court undoubtedly believed that disruption of the
proceedings was certain to follow.
Indeed, delay was likely to follow as well because defendant had
repeatedly wanted a Dr. Knapke to appear as his expert witness because
defendant believed that doctor would testify that the cocaine made defendant
commit the charged offense; thus, defendant would almost certainly have asked for
a continuance to secure that doctor’s presence.
Defendant
had many previous opportunities to request leave to represent himself, having
been represented by three different public defenders, and having addressed the
court during numerous Marsden
motions. Despite the numerous denials of
his previous Marsden motions and
defendant’s vociferous distrust of his counsel, he never asked to represent
himself until faced with the immediate prospect of going to trial. While he did not ask for a continuance, he
also had not shown that he was prepared to proceed to trial immediately. (Cf. People
v. Tyner (1977) 76 Cal.App.3d 352 [appellate court found denial of request
for self-representation on eve of trial was erroneous where no indication of a
troubled history likely to lead to disruption of court proceedings, and defendant
demonstrated preparedness to proceed immediately by having written out 50
questions with which to cross-examine witnesses].) It was therefore
reasonable for the court to conclude that defendant’s Faretta motion was made in response to the denial of his latest Marsden
motion and because defendant was faced with the imminent start of trial, rather
than because of a genuine desire to serve as his own attorney. This too was a proper reason to deny the
motion because such a request for self-representation was “not unequivocal.†(People
v. Scott (2001) 91 Cal.App.4th 1197, 1205-1206.) Defendant was seeking to avoid or at least
delay the inevitable. We find no error.
III. The Pitchess
Motion
Defendant
requests that we review the in camera proceedings of his Pitchess motion to determine whether the trial court properly ruled
on the discoverability of information contained in the personnel and
administrative files of the arresting officers, Officers Moreno and Charley. We review the trial court’s ruling on the
discretion. (People v. Hughes (2002) 27 Cal.4th 287, 330.) The trial court conducted an in camera
hearing at which the custodian of records was placed under oath and presented
the personnel files of Officers Moreno and Charley. The court reviewed the potentially responsive
documents outside the presence of all persons except the custodian and his
counsel. The trial court made the
appropriate inquiries concerning whether the custodian had produced all
potentially responsive documents, and described thoroughly, in the sealed
transcript of the hearing, the documents produced. (People
v. Mooc (2001) 26 Cal.4th 1216, 1229.)
We have reviewed the sealed record of the in camera proceeding and
conclude the trial court appropriately exercised its discretion in finding
discoverable certain documents from the personnel records of each officer, and
otherwise concluding that there was no further relevant, discoverable material
to be disclosed. We find no error in the
trial court’s ruling.
disposition
The
judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA,
J.
We concur:
EPSTEIN, P.
J.
MANELLA, J.
name="_ftn1" title="">[1] All further undesignated statutory references are to the
Penal Code.
name="_ftn2" title="">[2] Pitchess v. Superior
Court (1974) 11 Cal.3d 531.
