Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SA062650, Amy D. Hogue, Judge.
Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.
PERLUSS, P. J.
Henry Lee Boykins appeals from the judgment entered following his conviction after a jury trial on one count of selling, transporting or offering to sell a controlled substance (Health & Saf. Code, § 11352, subd. (a)), with special findings by the court in a bifurcated proceeding he had suffered eight prior convictions, six of which were for the same offense as the current charge. Boykins contends the trial court abused its discretion in failing to suspend all proceedings to permit the question of his mental competency to be determined pursuant to section 1369. Boykins also contends the court erred in failing to instruct the jury on possession of a controlled substance or possession of a controlled substance with intent to sell, although he concedes these are not lesser included offenses of the crime charged, apparently as a means of permitting the jury to engage in jury nullification. We affirm.
Boykins was sentenced to a state prison term of four years, the middle term for selling, transporting or offering to sell a controlled substance. The trial court exercised its discretion under Penal Code section 1385 to dismiss all of the enhancements based on Boykins’s prior convictions. The court also revoked Boykins’s probation for a 2006 conviction for possession of cocaine and sentenced Boykins to a concurrent, two-year state prison term on that offense.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Evidence of Boykins’s Sale of a Controlled Substance
On December 31, 2006 at approximately 5:00 p.m., Santa Monica Vice-Narcotics Officer Cody Green and his partner, Officer Rodriguez, both dressed in casual street clothes and riding in an unmarked car, were on patrol in a neighborhood known for low- to mid-level narcotics transactions when they drove past Boykins walking in an alley. After the officers passed Boykins a few times, Boykins yelled out, “I know what you’re looking for.” Green stopped the car; Boykins approached and asked Green what he was looking for; Green replied, “[a] 20 of rock,” which Green testified meant $20 worth of rock cocaine.
Boykins asked Officer Green several times whether he was a police officer. Green denied he was. After satisfying himself Green was not a police officer (including looking at Green’s wallet but apparently not seeing Green’s police identification), Boykins directed Green to follow him on his bicycle to an alley several blocks away, where Green was told to park behind an apartment building. Boykins requested $20 from Green to buy the narcotics. Green gave Boykins the money. Boykins told Green to wait, explaining, if someone were to be arrested, Boykins wanted to be the only one. According to Green’s trial testimony, Boykins appeared to be acting as a runner.
A minute or two later Boykins returned with two off-white items cupped in his hands, which Officer Green testified appeared to be quarter-inch pieces of cocaine. (Subsequent testing established the presence of .35 grams of cocaine in the substances.) Boykins asked Green to break off a piece from one rock. Green then got out of his car, identified himself as a police officer and arrested Boykins.
Boykins, a homeless man, testified on his own behalf against his counsel’s advice (as communicated to the trial court outside the presence of the jury). Boykins insisted the incident occurred on January 7, 2007, a week later than Officer Green had indicated in his testimony. Boykins explained he initiated the contact with the officers after they had driven past him several times, remarking “What are you guys doing running up and down my alley? What do you guys want?” Green then asked, “You got a 20?” Boykins responded, “Man I don’t sell no dope . . . I smoke plenty of it.” After further entreaties from the men about purchasing cocaine, Boykins inquired whether they were police officers or with the FBI and then, assured they were not, agreed to obtain the cocaine for them in return for a small amount of money or a piece of the rock cocaine for his own use. Boykins also testified, following his arrest, the officers asked him to act as a police informant in connection with three more drug transactions and said in return they would not pursue the current offense. Boykins declined because he feared for his life if he acted as an informant.
On cross-examination Boykins confirmed he had initiated contact with the officers and admitted he went and obtained $20 worth of rock cocaine for them. Boykins’s counsel on further direction examination then asked, “Mr. Boykins, essentially what you’ve testified to is essentially that you did, in fact, commit this crime. Why would you want to take the stand and testify to that?” Boykins responded, “Because the officer -- I asked him three times, were they officers? They lied. That’s like they, they entrap me to go make a drug transaction for them, and then they want me to be an informant. That was the -- that was the bottom -- that was the bottom to the whole thing. . . . I’m sleeping in the alley. I’m homeless out there. So they say, ‘well, maybe if we get him to help us, we’d clean up the neighborhood, get rid of all the drug dealers.’ But I ain’t trying to put my life on the line like that. You entrap me on a drug transaction, and then want me to be an informant? No.”
In rebuttal testimony Officer Green confirmed he had asked Boykins to act as an informant and said he would request dismissal of the current charges if Boykins agreed. Green testified he omitted this aspect of the encounter with Boykins from the police report to protect the safety of potential informants.
2. Jury Deliberations
Boykins was charged with one count of selling, transporting or offering to sell a controlled substance. Trial of the special allegations relating to Boykins’s prior convictions was bifurcated, and Boykins waived his right to a jury trial on those questions.
During the discussion of instructions before the conclusion of testimony, the court inquired whether the People or Boykins wanted the jury instructed on simple possession or possession for sale, although observing “since the sale is admitted, I don’t know that either of them is really supported by the evidence.” Defense counsel asked that they be included, and the court initially responded, “all right.” Subsequently, however, the court declined to give the instructions, explaining, “I don’t think it’s proper for me to instruct on the lesser because he basically admitted the sale when he testified. . . . There have to be some facts to support the lesser. He admitted the sales . . . . I don’t think it’s appropriate to give the lesser instruction. I’m basically inviting nullity if I do.”
Opening statements, testimony, closing argument and instructions all took place on Monday, April 9, 2007. The jury began deliberating the following morning. Almost immediately, the jury sent a series of written questions to the court. First, the jury asked, “What constitutes the sale of a controlled substance? Does the act of being a runner and conducting a sales transaction as such, constitute the sale of a controlled substance?” The jury also asked, “Is the charge this person is being charged with an appropriate charge for a ‘runner’?” Finally, the jury asked, “Does the judge have broad latitude to take into account all circumstances, such as the defendant’s mental condition, when deciding sentencing?” With the concurrence of the People and Boykins’s counsel, the court responded in writing to the first two questions, “Selling means exchanging a controlled substance for money, services, or anything of value.” Also with the parties’ agreement the court responded to the third question, “The appropriateness of the charge is a legal matter for the court to decide and not for the jury to decide.” However, before the court decided on an appropriate response to the final question, the jury returned with a verdict of guilty on the charge of selling, transporting or offering to sell a controlled substance.
The court indicated it could respond to the final question by saying either, “Yes, but the jury is not to consider penalty or punishment,” or simply, “The jury is not to consider penalty or punishment.” The prosecutor urged the court use the first formulation to avoid any suggestion the court has no discretion. Defense counsel requested the court use the second version to emphatically advise the jury not to consider penalty at all in reaching its verdict. The court took the question under advisement and had not indicated its final decision on the point before the jury returned with the verdict.
DISCUSSION
1. The Trial Court Was Not Required To Suspend Proceedings For a Competency Hearing
“A person cannot be tried or adjudged to punishment while that person is mentally incompetent.” (§ 1367, subd. (a); see People v. Rogers (2006) 39 Cal.4th 826, 846 [due process prohibits trying or convicting defendant who is mentally incompetent].) A defendant is incompetent if it is proved, “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); see People v. Lawley (2002) 27 Cal.4th 102, 131.) However, “[a] defendant is presumed competent unless the contrary is proven by a preponderance of the evidence.” (Lawley, p. 131; see § 1369, subd. (f).)
Pursuant to section 1368, if the trial court and defense counsel express a doubt as to the defendant’s competence to stand trial, the court must hold a competency hearing to determine the question of the defendant’s mental competence in accordance with the specific procedures mandated by section 1369. (See generally People v. Howard (1992) 1 Cal.4th 1132, 1163-1164 [§ 1368 does not mandate a competency hearing based solely on defense counsel’s opinion without substantial supporting evidence]; People v. Panah (2005) 35 Cal.4th 395, 433 [defense counsel’s opinion, standing alone, is not dispositive but only one factor for trial court to consider in determining whether substantial evidence exists].) In this case, as Boykins concedes, neither the trial court nor his counsel declared a doubt as to his competency to stand trial or raised any question about his ability to assist in the conduct of his defense at any stage of the proceedings. Nonetheless, emphasizing due process requires a competency hearing be held whenever the record contains evidence that “raises a reasonable doubt about the defendant’s competence to stand trial” (People v. Koontz (2002) 27 Cal.4th 1041, 1064; see People v. Welch (1999) 20 Cal.4th 701, 729; see also People v. Jones (1991) 53 Cal.3d 1115, 1152), Boykins insists the court abused its discretion in failing to suspend proceedings and conduct a hearing to determine his competency. (See People v. Ramos (2004) 34 Cal.4th 494, 507 [“court’s decision whether to grant a competency hearing is reviewed under an abuse of discretion standard”].)
Section 1368 provides, “(a) If, during the pendency of an action and prior to judgment, a doubt arises in the mind of the judge as to the mental competence of the defendant, he or she shall state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent. If the defendant is not represented by counsel, the court shall appoint counsel. 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. [¶] (b) If counsel informs the court that he or she believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendant’s mental competence is to be determined in a hearing which is held pursuant to Sections 1368.1 and 1369. If counsel informs the court that he or she believes the defendant is mentally competent, the court may nevertheless order a hearing. Any hearing shall be held in the superior court. [¶] (c) Except as provided in Section 1368.1, when an order for a hearing into the present mental competence of the defendant has been issued, all proceedings in the criminal prosecution shall be suspended until the question of the present mental competence of the defendant has been determined. . . .”
Section 1369 states, “A trial by court or jury of the question of mental competence shall proceed in the following order: [¶] (a) The court shall appoint a psychiatrist or licensed psychologist, and any other expert the court may deem appropriate, to examine the defendant. . . . [¶] . . . [¶] (b)(1) The counsel for the defendant shall offer evidence in support of the allegation of mental incompetence. [¶] (2) If the defense declines to offer any evidence in support of the allegation of mental incompetence, the prosecution may do so. [¶] (c) The prosecution shall present its case regarding the issue of the defendant’s present mental competence. [¶] (d) Each party may offer rebutting testimony, unless the court, for good reason in furtherance of justice, also permits other evidence in support of the original contention. [¶] (e) When the evidence is concluded, unless the case is submitted without final argument, the prosecution shall make its final argument and the defense shall conclude with its final argument to the court or jury. [¶] (f) In a jury trial, the court shall charge the jury, instructing them on all matters of law necessary for the rendering of a verdict. 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. The verdict of the jury shall be unanimous.”
To preserve the defendant’s due process rights, the trial court must “conduct a competency hearing whenever the court is presented with substantial evidence of incompetence, that is, evidence that raises a reasonable or bona fide doubt concerning the defendant’s competence . . . .” (People v. Blair (2005) 36 Cal.4th 686, 711; People v. Welch, supra, 20 Cal.4th at pp. 737-738.) A defendant has a constitutional right to a competency hearing if there is “‘substantial evidence that he is incapable . . . of understanding the nature of the proceedings against him or of assisting in his defense. Once such substantial evidence appears, a doubt as to the sanity of the accused exists, no matter how persuasive other evidence -- testimony of prosecution witnesses or the court’s own observations of the accused -- may be to the contrary. . . . [W]hen [there is] . . . substantial evidence of present mental incompetence, he is entitled to a section 1368 hearing as a matter of right . . . . The judge then has no discretion to exercise.’” (People v. Laudermilk (1967) 67 Cal.2d 272, 283, second bracketed insertion added, disapproved on other grounds in People v. Leonard (2007) 40 Cal.4th 1370, 1390, fn. 2; see also People v. Castro (2000) 78 Cal.App.4th 1402, 1415-1416 [court has sua sponte duty to order competency hearing when aware of substantial evidence of incompetency].)
As discussed, the test for competency is whether the defendant has the “mental capacity to understand the nature and purpose of the proceedings against him or her”; the defendant's legal knowledge or ability is irrelevant. (People v. Blair, supra, 36 Cal.4th at p. 711; People v. Welch, supra, 20 Cal.4th at pp. 733-734.) To constitute substantial evidence of incompetency, the evidence must relate to the defendant’s inability to understand the proceedings. (See People v. Davis (1995) 10 Cal.4th 463, 527; People v. Rogers, supra, 39 Cal.4th at pp. 846-847.) Bizarre actions or statements, suicidal tendencies or a history of mental illness do not alone trigger the court’s constitutional duty to hold a competency hearing if they do not reflect on the defendant’s current mental capacity to understand the proceedings. (People v. Ramos, supra, 34 Cal.4th at p. 508 [“defendant must exhibit more than bizarre, paranoid behavior, strange words, or a preexisting psychiatric condition that has little bearing on the question of whether the defendant can assist his defense counsel”]; see Davis, at p. 527; Blair, at p. 714; Rogers, at pp. 847-848.) The question as to what constitutes substantial evidence of incompetency so as to compel a competency hearing “‘cannot be answered by a simple formula applicable to all situations.’” (People v. Laudermilk, supra, 67 Cal.2d at p. 283.) Although there is some suggestion in the record Boykins might suffer from an undefined mental problem (based primarily on a question asked by his counsel), there is absolutely no evidence he was unable to understand the nature of the criminal proceedings in which he was involved or to assist his counsel in the conduct of his defense. (See generally People v. Romero (July 14, 2008, S070686) __ Cal.4th __ [2008 Cal. Lexis 8668] [trial court’s duty to suspend proceedings and order competency hearing arises when there is “doubt as to defendant’s competency to stand trial (§1368, subd. (a)), not when there is merely a doubt as to the existence of a mental disorder or developmental disability that does not implicate a defendant's competency to stand trial”].) Notably, there is no psychiatric or other medical evidence supporting the conclusion Boykins was mentally ill. To the contrary, Boykins’s pre-conviction probation report, completed the month before trial, contains no mention of any prior diagnosis of a mental disorder or developmental disability and includes Boykins’s own statement “that mentally he is okay.” The postrial sentencing report reaffirmed that observation, “Defendant indicates that his health is OK.” In addition, several days before the beginning of the trial, Boykins coherently (albeit unsuccessfully) argued a motion for appointment of new counsel under People v. Marsden (1970) 2 Cal.3d 118.
Even if such medical testimony had been presented, a history of serious mental illness does not necessarily constitute substantial evidence of incompetence. (People v. Blair, supra, 36 Cal.4th at p. 714; People v. Ramos, supra, 34 Cal.4th at p. 508.)
To be sure, Boykins demonstrated his distress at the on-going trial procedures during voir dire and made an inappropriate comment following his counsel’s opening statement (complaining that counsel had not told the jury Boykins would be testifying on his own behalf). Additionally, he testified against his counsel’s advice and did so in a manner that undoubtedly contributed to his conviction on the offense charged. His testimony and courtroom demeanor were occasionally emotional. Although his counsel aptly described her client as “a scared defendant,” nothing about any of these incidents supports a conclusion Boykins did not understand the nature and purpose of the proceedings or was unable to rationally discuss with his lawyer how his defense should be conducted.
“Although a court may not rely solely on its observations of a defendant in the courtroom if there is substantial evidence of incompetence, the court’s observations and objective opinion do become important when no substantial evidence exists that the defendant is less than competent to plead guilty or stand trial.” (People v. Ramos, supra, 34 Cal.4th at pp. 508-509.) Based on its own observations of Boykins, as well as the absence of any indication from defense counsel that Boykins was not able to participate fully in the conduct of his own defense, the trial court did not err in failing to order a competency hearing.
2. The Trial Court Did Not Err in Refusing To Instruct on Simple Possession or Possession with Intent To Sell a Controlled Substance
Prompted by an inquiry from the court, Boykins’s counsel requested instructions on simple possession and possession with intent to sell as lesser included offenses of selling, transporting or offering to sell a controlled substance, the crime with which Boykins was charged. The court’s refusal to give the instructions was proper.
A trial court must instruct on a lesser-included offense, even in the absence of a request, when some evidence in the record, if believed by the trier of fact, would show the lesser, but not the greater offense was committed. (E.g., People v. Hagen (1998) 19 Cal.4th 652, 672; see People v. Breverman (1998) 19 Cal.4th 142, 162.) Simple possession and possession with intent to sell, however, are not lesser included offenses of the crime of selling or offering to sell a controlled substance, at least when that crime is charged using only the statutory language, as here, because Boykins could have offered the cocaine for sale or sold it to Officer Green without ever possessing it. (People v. Murphy (2007) 154 Cal.App.4th 979, 984 [“[A] conviction for the greater offense of selling the cocaine (count one) does not require, as one of its statutory elements, the lesser offense of possessing the cocaine for sale (count two); possession is not an essential element of the sale offense. For example, one can broker a sale of a controlled substance that is within the exclusive possession of another.”]; see People v. Peregrina-Larios (1994) 22 Cal.App.4th 1522, 1524 [possession of controlled substance “cannot be a necessarily lesser included offense of selling or offering to sell . . . because the former crime contains elements a sales offense does not: knowing possession of a usable quantity”].)
Two tests have traditionally been applied in determining whether an uncharged offense is necessarily included within a charged offense -- the statutory or legal “elements” test and the “accusatory pleading” test. “Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former.” (People v. Reed (2006) 38 Cal.4th 1224,1227-1228; accord, People v. Licas (2007) 41 Cal.4th 362, 366; People v. Birks (1998) 19 Cal.4th 108, 117.)
A criminal defendant has no right, absent agreement from the prosecution, to instructions on lesser offenses that are related to, but not necessarily included in, the charges actually filed. (People v. Birks, supra, 19 Cal.4th at p. 136; see Hopkins v. Reeves (1998) 524 U.S. 88 [118 S.Ct. 1895, 141 L.Ed.2d 76] [instructions on uncharged lesser related offenses not required as matter of federal due process].)
In addition, as the trial court ruled, the evidence at trial -- Officer Green’s description of the incident, as well as Boykins’s admissions during his own testimony -- clearly established the only crime that occurred, if one did at all, was the sale of a controlled substance. There is no duty to instruct on lesser included offenses “‘when there is no evidence that the offense was less than that charged.’” (People v. Barton (1995) 12 Cal.4th 186, 194-195; see People v. Hagen, supra, 19 Cal.4th at p. 672 [instructions on lesser included offenses required “only if the proof at trial includes substantial evidence that the lesser offense, but not the greater, was committed; such evidence is ‘substantial’ only if a reasonable jury could find it persuasive”].)
To the extent Boykins argues, notwithstanding these well-established rules governing the definition of lesser included offenses and the circumstances under which instructions on such offenses must be given, the jury should have been instructed on simple possession and possession with intent to sell to permit it to engage in “jury nullification,” we categorically reject his position. (See People v. Engelman (2002) 28 Cal.4th 436, 441 [“Court of Appeal was correct in determining that the jury has the duty to follow the court’s instructions and that the jury lacks the right to engage in nullification”]; People v. Estrada (2006) 141 Cal.App.4th 408, 410 [“although jurors have the ‘power’ to engage in jury nullification, they have no legal authority to do so”]; see generally People v. Williams (2001) 25 Cal.4th 441, 451-456, 463 [“Jury nullification is contrary to our ideal of equal justice for all . . . . A nullifying jury is essentially a lawless jury.”].)
DISPOSITION
The judgment is affirmed.
We concur: WOODS, J., ZELON, J.
Statutory references are to the Penal Code unless otherwise indicated.