Opinion
B293578
05-26-2020
THE PEOPLE, Plaintiff and Respondent, v. DAVID BRADSHAW, Defendant and Appellant.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. Los Angeles County Super. Ct. No. TA133699 APPEAL from a judgment of the Superior Court of Los Angeles County, Laura R. Walton, Judge. Affirmed. Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted defendant David Bradshaw of one count of second degree murder (Pen. Code, § 187, subd. (a)), two counts of premeditated attempted murder (§§ 187, subd. (a), 664), and one count of assault by means likely to cause great bodily injury (§ 245, subd. (a)(4)); it acquitted him of one count of murder and two counts of attempted murder. On appeal, Bradshaw contends the judgment must be reversed because the court erroneously denied his request to represent himself. He also contends the aggravated assault conviction must be reversed because the court did not sua sponte instruct on the lesser included offense of simple assault. We disagree with both contentions and affirm.
Undesignated statutory references are to the Penal Code.
Because the acquittals are not at issue, we omit any discussion of the facts related to them.
FACTUAL AND PROCEDURAL BACKGROUND
Bradshaw engaged in a series of attacks on individuals in and around the Nickerson Gardens Housing Project in Los Angeles. In January 2014, Bradshaw attacked Leslie Taylor, a homeless 62-year-old man. As Taylor described it, Bradshaw "came at my head with his fist pretty hard, so I covered up. But I went down, [and] I got kicked in the head severely." Bradshaw delivered four or five strong blows with a closed fist. There were "between three and five" kicks to Taylor's head by Bradshaw. Taylor blocked the punches, but said "what really fucked me up was the kicks to my head from his feet." The attack lasted between three and five minutes. When Taylor got up, he was "totally disorientated and blood was coming out of . . . everywhere for a long time." During the attack, Bradshaw did not say anything, and did not try to take any money; Bradshaw only stopped kicking Taylor after people exited a nearby house. After the attack, Taylor started walking but was "groggy," and thought he was going back the way he came when in fact he was headed a totally different direction.
In February 2014, Bradshaw attacked Joseph Bennett, stabbing him three times in the throat and shoulders. In March 2014, Bradshaw attacked Keith Parker, stabbing him in the neck with a screwdriver. In June 2014, Bradshaw murdered Viengkhan Hansaya by slashing him in the neck with a single-edge blade.
On June 10, 2014, the People charged Bradshaw by complaint. At Bradshaw's arraignment the same day, the following transpired between the court, defense counsel, and Bradshaw:
"[Defense counsel:] Mr. Bradshaw has informed us that he wants to go pro per; however, he is refusing to sign the Faretta waivers and he wants to exercise his Fifth Amendment right, he indicates. I'm asking the court to make a determination. I don't believe that it's—I don't believe that it's a mandate that he signs the Faretta waivers; however, the court must make a determination whether he can represent himself.
Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525, 45 L.Ed.2d 512] (Faretta).
"The Court: And he's
"[Defense counsel]: He wants to go pro per.
"The Court: This is Mr. Bradshaw?
"[Bradshaw]: Yes, it is.
"The Court: Why are you refusing, sir, to fill out the Faretta waiver?
"[Bradshaw]: Because I'm going on my—by myself. I don't need nobody helping me.
"The Court: Sir, I need you to understand that you—I need to be satisfied that you understand all your rights and so forth.
"[Bradshaw]: I got the right to represent myself so I'm going pro per.
"The Court: And you're refusing to fill out the form?
"[Bradshaw]: I just told you, yep.
"The Court: Okay. His request to go pro per is denied."
Immediately thereafter, the court explained its ruling in more detail: "Let me just say one more thing, just for the record, on Mr. Bradshaw. The court is making a finding that Mr. Bradshaw is being deliberately obstreperous, and that is why the court is denying his pro per privileges. He's refusing to speak. He says he's going to stand on his Fifth Amendment rights. He's refusing to fill out the paperwork that is required, a Faretta waiver, a written Faretta waiver. He's obstreperous. Under the circumstances, I'm denying his request to go pro per. I just want the record to be clear." Bradshaw did not again raise any request to represent himself during the course of proceedings resulting in his conviction.
On June 24, 2014, two weeks later and before a different judge, defense counsel expressed a doubt as to Bradshaw's competency. When the court asked Bradshaw questions, Bradshaw kept responding by saying that he had the right to remain silent. The court declared a doubt as to Bradshaw's mental competency, suspended criminal proceedings, and ordered an examination pursuant to section 1368.
On September 22, 2014, the court found Bradshaw mentally incompetent and committed him to Patton State Hospital. On July 7, 2015, after reviewing reports from Patton State Hospital and other materials, the court found Bradshaw had been restored to competency and reinstated criminal proceedings.
On April 26, 2016, defense counsel again declared a doubt as to Bradshaw's competency, and the court again suspended criminal proceedings. On August 23, 2016, the court found Bradshaw mentally competent and resumed criminal proceedings.
Bradshaw was thereafter convicted at trial on some of the charged counts and conduct enhancements, and acquitted on others. On October 25, 2018, the court sentenced Bradshaw to a term of 30 years to life.
DISCUSSION
A. The Trial Court Did Not Err in Refusing to Let Bradshaw Represent Himself
Bradshaw contends the judgment must be reversed because the court erroneously denied his request to represent himself. Bradshaw argues that "[n]one of the reasons upon which the trial court relied in denying [his] request excused its failure to determine whether [his] request stemmed from a knowing and intelligent decision." We disagree. Bradshaw's insistence that his Fifth Amendment rights permitted him not to answer the questions necessary to assess whether he was making a knowing and intelligent decision to represent himself prevented such a determination, and justified the trial court's denial of his request to represent himself.
A criminal defendant generally "has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so." (Faretta, supra, 422 U.S. at p. 807.) "A trial court must grant a defendant's request for self-representation if three conditions are met. First, the defendant must be mentally competent, and must make his request knowingly and intelligently, having been apprised of the dangers of self-representation. [Citations.] Second, he must make his request unequivocally. [Citations.] Third, he must make his request within a reasonable time before trial." (People v. Welch (1999) 20 Cal.4th 701, 729.) As a matter of federal constitutional law, "when a motion to proceed pro se is timely interposed, a trial court must permit a defendant to represent himself upon ascertaining that he has voluntarily and intelligently elected to do so, irrespective of how unwise such a choice might appear to be." (People v. Windham (1977) 19 Cal.3d 121, 128.) "Erroneous denial of a Faretta motion is reversible per se." (People v. Butler (2009) 47 Cal.4th 814, 824.)
We note that soon after his request to proceed in propria persona, Bradshaw was declared mentally incompetent. Although there is a significant question as to whether Bradshaw was mentally competent when he made his self-representation request (a request he did not renew once restored to competency), neither party addresses this issue. We accordingly assume for the sake of our analysis that Bradshaw was mentally competent at the time he made his Faretta request.
" ' "When confronted with a request" for self-representation, "a trial court must make the defendant 'aware of the dangers and disadvantages of self-representation, so that the record will establish that "he knows what he is doing and his choice is made with eyes open." ' [Citation.] . . . [Citation.]" [Citations.] In order to deem a defendant's Faretta waiver knowing and intelligent,' the trial court 'must insure that he understands 1) the nature of the charges against him, 2) the possible penalties, and 3) the "dangers and disadvantages of self-representation." [Citation.]' [Citation.]" (People v. Sullivan (2007) 151 Cal.App.4th 524, 545.) The Faretta form provided to Bradshaw is "a means by which the judge and the defendant seeking self-representation may have a meaningful dialogue concerning the dangers and responsibilities of self-representation." (People v. Silfa (2001) 88 Cal.App.4th 1311, 1322.) "The advisements in the form also serve to warn the defendant of the complexities of the task about to be undertaken." (Ibid.)
Here, Bradshaw indicated through counsel that he would invoke his right to remain silent in response to questions about whether he understood the rights he was giving up, and whether he was making a knowing and voluntary waiver. Indeed, Bradshaw persisted in this disruptive behavior of refusing any substantive discussion with the court at a hearing a short time thereafter, asserting his right to remain silent when the trial court attempted to ask questions to assess Bradshaw's competency. Bradshaw's refusal to sign the Faretta form or substantively discuss the dangers and responsibilities of self-representation with the trial court prevented the court from making an informed decision about whether the proposed waiver of counsel was knowing and intelligent. " '[C]ourts must draw every inference against supposing that the defendant wishes to waive the right to counsel. . . . A motion for self-representation made in passing anger or frustration, an ambivalent motion, or one made for the purpose of delay or to frustrate the orderly administration of justice may be denied.' [Citation.]" (People v. Ruffin (2017) 12 Cal.App.5th 536, 545.)
A trial court "possesses much discretion" in deciding whether to deny a defendant's motion for self-representation based on a defendant's disruptive behavior. (People v. Welch, supra, 20 Cal.4th at p. 735.) "[A] defendant requesting the right of self-representation must possess the ability and willingness 'to abide by rules of procedure and courtroom protocol.' [Citation.]" (People v. Watts (2009) 173 Cal.App.4th 621, 629, fn. omitted.) "We are . . . aware that the extent of a defendant's disruptive behavior may not be fully evident from the cold record, and that one reason for according deference to the trial court is that it is in the best position to judge defendant's demeanor." (People v. Welch, supra, 20 Cal.4th at p. 735.) The trial court's exercise of discretion in deciding whether to deny a motion for self-representation based on the defendant's disruptive behavior " 'will not be disturbed in the absence of a strong showing of clear abuse.' [Citations.]" (Ibid.)
The court found Bradshaw's refusal to sign the Faretta waiver form and to speak substantively about his understanding of the risks and responsibilities of self-representation indicated that Bradshaw was being "deliberately obstreperous." The trial court did not abuse its discretion in denying self-representation based on this finding. While Bradshaw did not necessarily need to sign the Faretta form to represent himself, his overbroad view that the Fifth Amendment permitted him not to respond to court questioning about self-representation risks disrupted the proceedings and prevented the court from determining if Bradshaw was making a knowing and intelligent election.
Bradshaw further argues the trial court erred because its denial was based in part on a view that remaining silent was an unsound trial strategy. We disagree. Bradshaw asserted his Fifth Amendment right to remain silent within the context of the Faretta motion; neither Bradshaw nor his defense counsel stated that Bradshaw's trial strategy was to remain silent. We accordingly find no error in the denial of Bradshaw's request to represent himself.
B. The Court Did Not Err In Instructing the Jury on the Assault Charge
Bradshaw contends the court erred in failing to instruct the jury sua sponte on the lesser included offense of simple assault. We disagree, as the evidence regarding Bradshaw's attack on Taylor did not support a simple assault instruction.
A lesser included offense is an offense that is encompassed within the charged offense. (People v. Breverman (1998) 19 Cal.4th 142, 162.) A trial court has a duty to instruct on a lesser included offense whenever the evidence would support a reasonable jury in concluding that the defendant is not guilty of the charged offense, but is guilty of the lesser included offense. (People v. Avila (2009) 46 Cal.4th 680, 705.) This duty exists whether or not a request is made for a lesser included offense instruction. (Id. at p. 704.) On appeal, we review independently whether the trial court improperly failed to instruct the jury on a lesser included offense. (People v. Souza (2012) 54 Cal.4th 90, 113.)
"To justify a lesser included offense instruction, the evidence supporting the instruction must be substantial—that is, it must be evidence from which a jury composed of reasonable persons could conclude that the facts underlying the particular instruction exist." (People v. Blair (2005) 36 Cal.4th 686, 745.) Any doubt as to the sufficiency of the evidence requiring a lesser included offense instruction should be resolved in favor of the defendant. (People v. Lemus (1988) 203 Cal.App.3d 470, 476.) That being said, "the existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense." (People v. Breverman, supra, 19 Cal.4th at p. 162.)
Simple assault (§ 240) is a lesser included offense of assault by means of force likely to cause great bodily harm (§ 245, subd. (a)(4)). One cannot commit the aggravated form of assault without also committing a simple assault. (People v. Berry (1976) 18 Cal.3d 509, 518-519; People v. Yeats (1977) 66 Cal.App.3d 874, 879.) Thus, the question posed by Bradshaw's claim is whether a reasonable jury could have found he committed only a simple assault and not an assault with force likely to produce great bodily injury.
Arguing a "yes" answer to this question, Bradshaw cites People v. Rupert (1971) 20 Cal.App.3d 961, 966 where the defendant struck five blows, knocking the victim to the floor and causing her to suffer several cuts, a concussion, and a scar to her left cheek. This evidence was sufficient to support the conviction for assault by means likely to cause great bodily injury, but the Court of Appeal held it was necessary on these facts to instruct the jury sua sponte on simple assault. (Id. at p. 968.) In this case, Bradshaw began similarly, punching Taylor several times and knocking him to the ground. Taylor sought to protect himself from these punches. If Bradshaw's attack had stopped at this point, Rupert might support his argument.
But Bradshaw did not stop attacking when Taylor went to the ground. Instead, Bradshaw began using force highly likely to cause great bodily injury. Taylor testified that after he was knocked down, his head "became exposed" and Bradshaw kicked him in the head "severely" as many as five times. The kicks were forceful enough to leave Taylor bleeding "for a long time" from "everywhere," and to leave him sufficiently groggy that he lost his sense of direction.
This evidence did not warrant the giving of a simple assault instruction. In his reply brief, Bradshaw appears to recognize as such, and argues a simple assault instruction was warranted because the jury could have believed some but not all of Taylor's testimony. Bradshaw provides no basis for discounting only the testimony about him kicking Taylor in the head. In any event, "[i]n deciding whether there is substantial evidence of a lesser offense, courts should not evaluate the credibility of witnesses, a task for the jury." (People v. Breverman, supra, 19 Cal.4th at p. 162.) Speculation about what testimony a jury might credit or not credit is insufficient to require the giving of an instruction on a lesser included offense. (People v. Williams (2015) 61 Cal.4th 1244, 1264.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------
ROTHSCHILD, P. J.
CHANEY, J.