Filed 8/31/17 P. v. Lesser CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, David G. Brown, and Richard Monroy, Judges. Reversed.

Boyce & Schaefer and Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Barry Carlton and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.

After the trial court found Ricky Lesser unable to competently represent himself at trial, a jury convicted him of making a criminal threat (Pen. Code,[1] § 422) and battery

(§ 242). In a bifurcated proceeding, the jury found true allegations that he had suffered two prior convictions that qualified as serious felonies (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)), and strikes (§§ 667, subds. (b)-(i), 668, 1170.12). The court sentenced Lesser to 25 years to life in state prison for the criminal threat, plus 10 years for the two serious felony prior convictions. It sentenced Lesser to a concurrent term of 180 days in jail for the battery.

Lesser contends the court violated his Sixth Amendment right to self-representation by revoking his pro per status after an eleven-minute change of venue hearing. He maintains the court's order was a per se abuse of discretion, requiring reversal, or alternatively it lacked substantial evidence that he suffered a severe mental illness rendering him incapable of carrying out his defense. We conclude the court committed structural error by revoking Lesser's right to self-representation, and therefore reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Lesser was arrested by sheriff's deputies after he entered a liquor store and directed racial slurs at the clerk, then spit in the clerk's face. Lesser told the arresting officers, including Sheriff's Deputy Noah Zarnow, "I'll fucking get all of you" and other similar comments, and he repeated that he would "get" or "hunt down" Deputy Zarnow while in the back of the police car. Zarnow did not take the comments seriously.

While Lesser was being booked into jail and evaluated by nurses, he looked back and forth to Zarnow's name tag and face. According to Zarnow, Lesser then threatened to "hunt him down" and kill him and his family by hanging them or setting them on fire. Deputy Zarnow feared for his family's safety, even up to the time of trial.

In February 2015, trial counsel declared a doubt about Lesser's competency, after which Judge Michael Popkins suspended proceedings and forensic psychiatrist Sanjay Rao examined Lesser. Dr. Rao observed Lesser to be appropriately groomed, "calm and cooperative," and made appropriate eye contact during the interview. The doctor found Lesser oriented to person, place, time and current situation, and his "thought process was organized, linear, and goal-directed." Dr. Rao determined "to a reasonable medical certainty" that Lesser "does not suffer from a severe mental disorder." On April 3, 2015, Judge Steven Stone found Lesser was mentally competent to stand trial.

Days later, Lesser moved to represent himself, and Judge Popkins granted the motion, finding Lesser understood the charges and the nature of the proceedings. Lesser represented himself through the preliminary hearing before Judge Sim von Kalinowski, readiness conferences, and a bail review before Judge Carlos Armour.

In December 2015, Lesser filed a motion for change of venue, which was heard by Judge Richard Monroy. In a handwritten pleading, Lesser asserted that for several decades forensic psychiatrists and police had "every race psychologically abusing [him]"; calling him names and holding their noses when he walked by. He wrote they "conspired to get [him] in[to] fights" using "provocative words and spitting." Lesser asserted that his "personal rights" were violated; he believed "everyone is biased toward me, and cannot get a fair trial." He concluded, "Being a Vietnam War vet I don't believe I can get due process, as civil and criminal laws are being violated."

The United States Supreme Court has held the Sixth Amendment to the federal Constitution gives a defendant the right to self-representation. ([i]Faretta v. California (1975) 422 U.S. 806 (Faretta).) That right is not without limits, however. (Indiana v. Edwards (2008) 554 U.S. 164, 171.) " '[The] government's interest in ensuring the integrity and efficiency of the trial at times outweighs the defendant's interest in acting as his own lawyer.' " (People v. Williams (2013) 58 Cal.4th 197, 253; see also Faretta, at pp. 834-835, fn. 46.) "Termination of the right of self-representation is a severe sanction and must not be imposed lightly." (People v. Carson (2005) 35 Cal.4th 1, 7 (Carson).).

"A trial court need not routinely inquire into the mental competence of a defendant seeking self-representation. It needs to do so only if it is considering denying self-representation due to doubts about the defendant's mental competence. When a court doubts a defendant's competence to stand trial, it 'shall appoint a psychiatrist or licensed psychologist, and any other expert the court may deem appropriate, to examine the defendant.' [(§ 1369, subd. (a).)] Similarly, when it doubts the defendant's mental competence for self-representation, it may order a psychological or psychiatric examination to inquire into that question. To minimize the risk of improperly denying self-representation to a competent defendant, 'trial courts should be cautious about making an incompetence finding without benefit of an expert evaluation, though the judge's own observations of the defendant's in-court behavior will also provide key support for an incompetence finding and should be expressly placed on the record.' " (People v. Johnson (2012) 53 Cal.4th 519, 530-531.)

On review, we accord due deference to the trial court's exercise of its discretion, which " 'will not be disturbed in the absence of a strong showing of clear abuse.' " (People v. Welch (1999) 20 Cal.4th 701, 735.) But it is incumbent upon the court to create a record that permits meaningful review of the basis for its rulings. As the Carson court stated, when terminating self-representation, the trial court must "preserve a chronology of relevant events for possible appellate review" and "document its decision." (Carson, supra, 35 Cal.4th at p. 11.)

As shown above, the court here did not comply with the requirement that it document its reasons for revoking Lesser's pro per status, and the record does not disclose any obvious reason for that decision. In light of the court's doubts about Lesser's mental capacity to represent himself, it failed to comply with section 1369's requirement that a psychiatrist or other expert examine Lesser. (People v. Johnson, supra, 53 Cal.App.4th at p. 530.) We acknowledge that Lesser's explanation of his reasons for wanting a change of venue was rambling, and his reference to people having him on "frequencies" could be construed as "bizarre." But he was competent to represent himself previously; and "even bizarre statements and actions are not enough to require a further inquiry." (People v. Marks (2003) 31 Cal.4th 197, 220.) Further, the record here shows this was the only proceeding over which Judge Monroy presided. In that regard, this case is unlike Johnson, in which the court concluded: "Defendant had represented himself for almost seven months of preliminary proceedings during which he filed a number of nonsensical motions and conducted himself in a bizarre and disruptive manner. The trial judge, who had presided over all these matters, was well acquainted with defendant's limitations and reasonably concluded that defendant lacked the mental capacity to conduct his defense without the assistance of counsel." (People v. Johnson, supra, at

p. 532.)

As the United States Supreme Court has reiterated recently, the erroneous denial of the right to self-representation is structural error: "[A]n error has been deemed structural in some instances if the right at issue is not designed to protect the defendant from erroneous conviction but instead protects some other interest. This is true of the defendant's right to conduct his own defense, which, when exercised, 'usually increases the likelihood of a trial outcome unfavorable to the defendant.' [Citation.] That right is based on the fundamental legal principle that a defendant must be allowed to make his own choices about the proper way to protect his own liberty. [Citation.] Because harm is irrelevant to the basis underlying the right, the Court has deemed a violation of that right structural error." (Weaver v. Massachusetts (2017) 137 S.Ct. 1899, 1908.) The California Supreme Court has likewise ruled, "Erroneous denial of a Faretta motion is reversible per se. [Citations.] The same standard applies to erroneous revocation of pro. per. status." (People v. Butler (2009) 47 Cal.4th 814, 824-825.) As in Butler, "[w]e decide this case under compulsion of United States Supreme Court precedent" and "prevailing constitutional standards." (Id. at p. 829.) "The record before us is bereft of information to support the trial court's revocation of defendant's propria persona status. In such a circumstance, controlling precedent compels this result." (People v. Becerra (2016) 63 Cal.4th 511, 520.)

DISPOSITON

The judgment is reversed.

O'ROURKE, J.

WE CONCUR:

BENKE, Acting P. J.

HUFFMAN, J.