Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County. No. VCF147434 Ronn M. Couillard, Judge.
Diane E. Berley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Craig S. Meyers, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
Defendant Gary Delmar Henderson was convicted of multiple crimes for a home invasion burglary and the heinous acts he committed on three women who were inside the home. The trial court sentenced him to 494 years to life in prison. On appeal, defendant contends (1) the trial court erred by failing to declare a doubt as to his mental competence and to hold a competence hearing, (2) the trial court erred by failing to hold a second Marsden hearing, and (3) the trial court erred by refusing to appoint counsel to represent him after he had chosen to represent himself. We will affirm.
The details of the crimes and the charges are not relevant to the issues.
People v. Marsden (1970) 2 Cal.3d 118.
DISCUSSION
I. Failure to Conduct Competence Hearing
Defendant contends the trial court erred by failing to declare a doubt about his mental competence and hold a competence hearing. He argues that his own comments -- in a letter he wrote to the trial court filed on February 7, 2006, and in a motion for conflict counsel filed on September 11, 2006 -- raised “the possibility of some type of paranoia” and therefore provided ample evidence to raise a question about his mental competence. We disagree.
A. Law
“Trial of an incompetent defendant violates the due process clause of the Fourteenth Amendment to the United States Constitution [citation] and article I, section 15 of the California Constitution. Those protections are implemented by statute in California. A criminal defendant is incompetent and may not be ‘tried or adjudged to punishment’ 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.’ [Citation.]” (People v. Hayes (1999) 21 Cal.4th 1211, 1281.) Thus, “the defendant must have a ‘“sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding -- and … a rational as well as [a] factual understanding of the proceedings against him.”’ [Citations.] The focus of the inquiry is the defendant’s mental capacity to understand the nature and purpose of the proceedings against him or her. [Citations.] The defendant’s ‘“technical legal knowledge”’ is irrelevant. [Citation.]” (People v. Blair (2005) 36 Cal.4th 686, 711.)
“[Penal Code s]ection 1368 mandates a competency hearing if a doubt as to a criminal defendant’s competence arises during trial. That may occur if counsel informs the court that he or she believes the defendant is incompetent [citation], or ‘[i]f 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.’ [Citation]” (People v. Hayes, supra, 21 Cal.4th at p. 1281.) As interpreted by the Supreme Court, “once the accused has come forward with substantial evidence of incompetence to stand trial, due process requires that a full competence hearing be held as a matter of right. [Citation.] In that event, the trial judge has no discretion to exercise. [Citation.]” (People v. Welch (1999) 20 Cal.4th 701, 738.) Thus, “where the substantial evidence test is satisfied and a full competence hearing is required but the trial court fails to hold one, the judgment must be reversed. [Citation.]” (Ibid.) On the other hand, when the evidence before the trial court does not amount to substantial evidence, the trial court has no duty to declare a doubt as to a defendant’s present competence and its decision not to do so is not an abuse of discretion. (Id. at p. 740.)
“‘Substantial evidence is evidence that raises a reasonable doubt about the defendant’s competence to stand trial.’ [Citation.] Evidence regarding past events that does no more than form the basis for speculation regarding possible current incompetence is not sufficient. [Citation.]” (People v. Hayes, supra, 21 Cal.4th at p. 1281.) “More is required than just bizarre actions or statements by the defendant to raise a doubt of competency. [Citation.] In addition, a reviewing court generally gives great deference to a trial court’s decision whether to hold a competency hearing…. ‘“An appellate court is in no position to appraise a defendant’s conduct in the trial court as indicating insanity, a calculated attempt to feign insanity and delay the proceedings, or sheer temper.”’ [Citation.]” (People v. Marshall (1997) 15 Cal.4th 1, 33.)
B. Analysis
With these principles in mind and after a review of the entire record, we conclude defendant did not present substantial evidence he was mentally incompetent to stand trial. Rather, the evidence established he was thoroughly dissatisfied with appointed counsel and the course his case was taking. We chronicle some of the many letters and motions defendant drafted and filed with the court, many of which contain statements of the type that defendant claims demonstrated his mental incompetence.
On January 11, 2006, defendant filed a letter with the court, requesting a Marsden hearing. He complained that appointed counsel’s representation fell below the standard of reasonableness. In an organized and rational fashion, defendant explained that counsel had not visited him in seven and one-half months, had not provided him with requested discovery, had not returned calls, had not obtained the DNA evidence, and had refused to replace the investigator who was intimidating exculpatory witnesses. Defendant stated: “So it seems [appointed counsel is] working for the D.A. not me.” Defendant expressly requested new counsel.
On January 17, 2006, defendant filed another letter with the court, again requesting a Marsden hearing. He reiterated his complaint that appointed counsel’s representation fell below the standard of reasonableness. He explained that counsel had not visited him in eight months, had not provided him with requested discovery, had refused to provide him a receipt for his DNA sample, and had refused to make Pitchess motions. Defendant requested a more suitable attorney, claiming appointed counsel did not care about his defense.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
On January 27, 2006, the court held a Marsden hearing. Defendant told the court he had not seen appointed counsel in eight months (other than in court), had seen the investigator only once for 15 minutes, and had received no discovery. Appointed counsel explained he had only been assigned to the case in November and he had visited defendant twice since then. The investigator had conducted the research requested by defendant, but the results were not what defendant had suggested they would be. Counsel had prepared the case and was ready to proceed, but defendant insisted on waiting for the DNA evidence, a tactic he advised against. The DNA evidence still was not ready; appointed counsel was not subverting the DNA evidence. The court refused to relieve counsel and denied defendant’s motion.
On February 7, 2006, defendant filed another letter with the court, requesting another Marsden hearing. He said he was certain appointed counsel was trying to help the district attorney convict him. Appointed counsel had not been to visit him since August or September and had not filed any motions. The investigator had not questioned all the witnesses. Defendant explained: “I have seen a psyc. [sic] But I[’]ve been seeing one on the outside for the last three years and three months.” Defendant accused counsel of lying at the Marsden hearing about visiting him. Counsel had still not provided him discovery and had gone on vacation. Defendant stated: “This is all to help the district attorney. I[’]m being deprived of due process …. [Appointed counsel has] been dealing in bad faith this entire time. [¶] … I’m requesting to represent myself, because I[’]d rather do that than let this man do nothing to help me, only lie to hurt me…. [¶] I[’]m not an attorney[,] Your Honor, but I do know when someone is trying to help me or hurt me. And this public defender is just in there hurting my case.”
On February 24, 2006, defendant filed another letter with the court. He claimed his due process rights had been violated, he had been a victim of officer misconduct for the last eight months, and appointed counsel’s representation fell below the standard of reasonableness. In addition, he stated that counsel had shown he could not be trusted with exculpatory evidence, had not visited defendant since the Marsden hearing, had already perjured himself in court, and had threatened defendant by saying he would make sure he was convicted if he went to trial. Defendant requested new counsel.
On April 18, 2006, the trial court held a Faretta hearing. Defendant told the court he had to represent himself because appointed counsel was not doing anything for him. The court tried to convince defendant to keep appointed counsel, telling defendant he would be at a distinct disadvantage due to his lack of legal experience. Defendant answered that he was at a distinct disadvantage due to appointed counsel. The court stated it did not share defendant’s opinion about appointed counsel. The court strongly urged defendant to stay with appointed counsel, but defendant insisted on representing himself. The court granted defendant’s motion.
Faretta v. California (1975) 422 U.S. 806.
On May 12, 2006, defendant filed another letter with the court. He complained that he had not yet received discovery from his former appointed counsel. He accused counsel of hiding exculpatory evidence from the start and of perjuring himself in court.
On September 11, 2006, defendant filed a motion for appointment of conflict counsel for the presentation of officer misconduct issues. He noted that he had been granted pro. per. status in April. Since then, he had suffered repeated delays. He said he had been in custody 15 months and, although it was not his choice to represent himself, he knew when someone was trying to help him and when they were trying to hurt him.
Defendant has singled out two of these documents, but he fails to mention that the record is full of the many letters and motions he wrote and filed with the court, and that he represented himself in a rational manner throughout much of the pretrial proceedings and part of the trial. The test for mental incompetence is whether defendant was unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner. (Pen. Code, § 1367, subd. (a).) The test is not whether defendant suffered from a mental illness, received psychiatric treatment, or distrusted his attorney and believed he was helping the district attorney convict him. (See, e.g., People v. Ramos (2004) 34 Cal.4th 494, 508 [a preexisting psychiatric condition is not enough; defendant’s death wish, history of psychiatric treatment, planned suicide attempt, propensity for violence, and psychiatric testimony that he suffered from a paranoid personality disorder did not constitute substantial evidence of incompetence]; People v. Koontz (2002) 27 Cal.4th 1041, 1068 [defendant’s inability to function socially was not substantial evidence of defendant’s incompetence to stand trial]; People v. Welch, supra, 20 Cal.4th at p. 742 [no incompetence shown where defendant and his counsel did not agree on which defense to employ, defendant had a paranoid distrust of the judicial system, and had stated his counsel was in league with the prosecution]; People v. Frye (1998) 18 Cal.4th 894, 952 [expert testimony that defendant was unable to tolerate stressful situations and that the stress of trial would make it difficult for him to testify on his own behalf was not sufficient to raise a doubt]; People v. Laudermilk (1967) 67 Cal.2d 272, 285 [more is required to raise a doubt than mere bizarre actions, bizarre statements, statements of defense counsel that defendant is incapable of cooperating in his defense, psychiatric testimony that defendant is immature, dangerous, psychopathic, or homicidal, or such diagnosis with little reference to defendant’s ability to assist in his own defense]; People v. Smith (2003) 110 Cal.App.4th 492, 502 [mere presence of a mental illness was not sufficient to raise a doubt].)
Defendant lost his temper and voluntarily absented himself from part of the trial. He later returned and engaged in cross-examination. He did not, however, call any witnesses for his defense.
Our review of the record shows no substantial evidence of mental incompetence. The trial court did not abuse its discretion in not declaring a doubt as to defendant’s mental competence.
II. Failure to Hold Second Marsden Hearing
Defendant argues that the trial court abused its discretion by failing to conduct a second Marsden hearing based on a letter defendant filed on February 7, 2006 -- 16 days after the first Marsden hearing.
A. Law
When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of counsel’s inadequate performance. (People v. Memro (1995) 11 Cal.4th 786, 857.) The trial court is “unable to intelligently deal with a defendant’s request for substitution of attorneys unless [it] is cognizant of the grounds which prompted the request.” (People v. Marsden, supra, 2 Cal.3d at p. 123.) Thus, a trial court abuses its discretion when it denies a motion for substitution of counsel without hearing the reasons for the motion. (Id. at p. 124.)
B. Analysis
As previously explained, defendant filed letters with the court on January 11, 2006, and on January 17, 2006. On January 27, 2006, the court held a Marsden hearing and denied defendant’s motion to replace his appointed counsel. On February 7, 2006, defendant filed another letter with the court, requesting another Marsden hearing. Even if we assume the trial court erred by failing to conduct a second Marsden hearing based on the third letter, we conclude any such error was harmless beyond a reasonable doubt. (People v. Marsden, supra, 2 Cal.3d at p. 126, citing Chapman v. California (1967) 386 U.S. 18, 24 [error is reversible unless record shows beyond a reasonable doubt error did not prejudice defendant]; accord, People v. Chavez (1980) 26 Cal.3d 334, 348-349 [Marsden does not establish a rule of per se reversible error].) The court had conducted a Marsden hearing 16 days earlier, at which time defendant raised nearly identical issues. The court found those issues to be an insufficient basis for appointing new counsel. The detailed letter defendant filed on February 7, 2006 fully informed the court that defendant continued to have the same concerns, such as no visits, no motions, no discovery, and harm to his case. (See People v. Terrill (1979) 98 Cal.App.3d 291, 299 [letter containing specific allegations fully apprised court of the complaints leveled against counsel].) Defendant had already been given the opportunity to fully voice these concerns before the court at the previous Marsden hearing. The court determined they were without merit, as it undoubtedly would have again 16 days later. Furthermore, at the Faretta hearing on April 18, 2006, the court expressly stated it did not agree with defendant’s opinion of appointed counsel and the court urged defendant to keep appointed counsel. These statements demonstrate that the court continued to hold the opinion that defendant’s complaints about appointed counsel were not valid, and that the court would have again denied a request for new counsel. For these reasons, any error in failing to hold a second Marsden hearing was harmless beyond a reasonable doubt.
III. Denial of Appointed Counsel
Defendant lastly contends the trial court erred by refusing to appoint counsel to represent him after he had chosen to represent himself. Defendant maintains that nothing changed from the morning that the court encouraged him to accept counsel to the afternoon when the court refused to grant his request for counsel. Based on an abridged version of the facts, defendant incorrectly suggests the court arbitrarily refused and “force[d] him to go forward without an attorney.” A more complete view of the record readily establishes this was not the case. Contrary to defendant’s representation, one obvious thing had changed between the court’s morning offer and its afternoon refusal: defendant discovered that the witnesses against him were anxious to get the trial over and one of them was leaving the state.
B. Facts
On January 16, 2007, the morning of the first day of trial, the court asked defendant if he would like appointed counsel, as follows:
“[THE COURT:] Let me ask you this: Do you have any change of mind here about representing yourself and wish to have an attorney appointed to represent you in this matter? This is a very serious -- obviously, a serious case, particularly with the strike allegations. Even standing alone without those allegations, this case carries with it a life sentence. With the allegations, it’s even more serious. [¶] I can only suggest, again, that you get an attorney, have an attorney appointed to represent you, because you are looking at the rest of your life in prison if you are convicted. Do you have any change of mind about this?
“THE DEFENDANT: No.
“THE COURT: You still want to represent yourself, is that correct?
“THE DEFENDANT: Yes.
“THE COURT: All right. That’s your right. I can only inform you I can’t help you and I won’t help you during the trial. The DA is an experienced trial attorney. You are at a distinct disadvantage. Certainly you are eligible to have counsel appointed for you. With the gravity of these offenses, I really am trying to impress upon you the fact that since we are in a little bit of a delay here, because of the fact the witnesses are being interviewed by your investigator, I certainly would entertain a change of heart on your part to have an attorney represent you. If you want[] to do that, I’ll be glad to appoint the public defender’s officer to do that.
“THE DEFENDANT: No.”
The court then addressed the possibility of trailing the case and the following occurred:
“[THE PROSECUTOR]: The problem I have with trailing is the victims want this case over and done with. I have one who wants to leave the State of California, who is pregnant and it’s a lot of stress on her just to remain and have this matter continue. So I would ask the court that we at least pick a jury today and then start testimony tomorrow…. [¶] … [¶]
“THE COURT: We can do that…. Is that agreeable? [¶] … [¶]
“THE DEFENDANT: Yes.”
Mid-afternoon, after jury selection, the following discussion took place outside the presence of the jury.
“THE COURT: The jury is gone. What did you wish to bring up in front of me?
“THE DEFENDANT: I wish to bring up I wish to be appointed an attorney….
“THE COURT: I asked you this morning.
“THE DEFENDANT: I talked to the bailiff about ten minutes after you left.
“[THE PROSECUTOR]: I would object to this. I mean, he’s had ample time to get an attorney.
“THE COURT: I’m going to deny it at this time. You can’t come in at the 11th hour and do this. This is a situation where all through the duration of the waiting period I asked you to reconsider, have an attorney appointed. I told you it would be difficult to try to defend yourself. You didn’t know anything about the law. You had never been through a jury trial before. It’s just a delaying tactic to come up here with the witnesses ready to leave out of state. The DA made special arrangements for your investigator to talk to them this morning, and I’ve been told he has done that, and he can discuss the case with you this afternoon. We’ll be ready to go. I’m going to deny the motion at this point.” (Italics added.)
A. Law
The ruling on a defendant’s request to change from self-representation to counsel-representation is within the trial court’s discretion. (People v. Elliott (1977) 70 Cal.App.3d 984, 997-998.) In determining whether the trial court abused its discretion in denying a request for appointment of counsel after a defendant has been granted his right to represent himself, we examine the totality of the circumstances surrounding the trial court’s ruling. (People v. Gallego (1990) 52 Cal.3d 115, 161, 163-164.) Relevant factors include: “‘(1) defendant’s prior history in the substitution of counsel and the desire to change from self-representation to counsel-representation, (2) the reasons set forth for the request, (3) the length and stage of the trial proceedings, (4) disruption or delay which reasonably might be expected to ensue from the granting of such motion, and (5) the likelihood of defendant’s effectiveness in defending against the charges if required to continue to act as his own attorney.’” (Id. at p. 164; People v. Elliott, supra, at pp. 993-994.) However, “‘[w]hile the consideration of these criteria is obviously relevant and helpful to a trial court in resolving the issue, they are not absolutes, and in the final analysis it is the totality of the facts and circumstances which the trial court must consider in exercising its discretion as to whether or not to permit a defendant to again change his mind regarding representation in midtrial.’” (People v. Gallego, supra, at p. 164.)
B. Analysis
In this case, defendant had complained about his appointed counsel for months. The trial court determined that his complaints were not valid and had refused to appoint new counsel. Eventually, the court granted defendant’s request that he be allowed to represent himself. But, even on the first day of trial, the court continued to warn against this choice and offered defendant an opportunity to accept appointment of new counsel, which he repeatedly and flatly refused. It was only after hearing that the witnesses against him (i.e., the victims) were anxious, and one was ready to leave the state, that defendant suddenly changed his mind and decided he wanted an attorney. Defendant explained that his switch was inspired by speaking to the bailiff. The trial court, however, determined defendant’s sudden request was a delay tactic intended to result in the loss of important prosecution witnesses. No other changes had occurred; no new legal issues had arisen that might have required more legal expertise (see People v. Elliott, supra, 70 Cal.App.3d at pp. 994-995 [prosecutor’s announced intention to call witnesses to testify about a prior uncharged offense made the trial suddenly more complicated].) The case had remained unchanged for months and defendant had represented himself for much of that time, preparing multiple letters and motions and receiving numerous continuances in order to prepare for trial. It is apparent that defendant was at this moment motivated by the prospect of preventing the victims from testifying against him. Under the totality of the circumstances, the trial court did not abuse its discretion in denying defendant’s request to relinquish his self-representation.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Harris, Acting P.J. Wiseman, J.