Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCR223595
NEEDHAM, J.
Alamar Houston (Houston) appeals from a judgment of conviction and sentence entered after he pled no contest pursuant to a plea agreement. He contends that, before he entered into the plea agreement, the trial court erred in (1) revoking his self-representation and (2) failing to suspend proceedings to have him evaluated for a third time for competency pursuant to Penal Code section 1368. We will affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
A felony complaint in April 2005 charged Houston with possession of illegal substances (marijuana and methamphetamine) in a prison facility on June 28, 2004. (Pen. Code, § 4573.6.) He thereafter had two competency evaluations pursuant to section 1368 and was permitted to represent himself, before the trial court revoked his self-representation and reappointed counsel.
Unless otherwise specified, all statutory references herein are to the Penal Code.
A. First Section 1368 Competency Evaluation
In May 2005, the trial court suspended proceedings and appointed two psychologists to evaluate Houston’s competency to stand trial pursuant to section 1368. Both psychologists found that Houston was not competent to stand trial. In July 2005, the court ordered that Houston was incompetent to stand trial and, pursuant to section 1370, committed him to Atascadero State Hospital until restoration to competency.
In September 2005, the Department of Mental Health concluded that Houston was malingering and advised the court that Houston was competent to stand trial. The court reinstated the criminal proceedings against him.
B. Second Section 1368 Competency Evaluation
On November 30, 2005, Houston’s attorney asserted that Houston was incompetent and requested that the proceedings again be suspended for an evaluation pursuant to section 1368. The court granted the request and appointed Dr. McGrew to evaluate Houston.
Dr. McGrew found that Houston did not appear to be psychotic, was aware of the charges against him and the possible consequences, had intelligence and knowledge of the law, and could participate in his defense if he chose to. Dr. McGrew concluded that Houston was “competent to proceed.”
On January 10, 2006, the court found Houston competent to stand trial and reinstated the proceedings.
C. Self-Representation Faretta Motion Granted
On January 18, 2006, the trial court heard Houston’s request to represent himself under Faretta v. California (1975) 422 U.S. 806 (Faretta). Because of its importance to the issues on appeal, we describe the hearing in substantial detail.
Houston began by complaining that no one had answered an “affidavit denying that this is a corporation” or his UCC-1 financing statement and security agreement, which had been filed “with the Secretary of the State on [his] diplomatic immunity” and sent to the court. The judge advised Houston that the court had not received those documents, and turned to Houston’s Faretta motion. Houston was informed that if he represented himself he might not be able to use the law library at the facility where he was being held. Houston replied that he did not understand, asked the judge his name, and asked if anyone in the courtroom had a claim against him. When Houston persisted in this manner, he was removed from the courtroom and placed in a holding cell.
When Houston’s case was recalled, the court warned Houston that he was not to interrupt the court and had to respond to the court’s questions. Houston did not respond. The court asked Houston if he was going to speak to the court, and Houston replied, “Yes, I understand that, your Honor, but I planned on intending not giving up any of my rights.” The court asked Houston if he understood that he was being represented by a lawyer, and Houston stated, “Sort of, kind of, because I never signed anything asking him to represent me, so I’m a little confused. How do I have a lawyer?” The following colloquy ensued: “THE COURT: Well, for the record, you’re clearly not confused. Your counsel is right there next to you but, in any event, you understand that it’s not a good idea to represent yourself? [¶] THE DEFENDANT: No, I don’t understand that. I’ve represented myself before. [¶] THE COURT: And you’re in prison, aren’t you? [¶] THE DEFENDANT: (No response) [¶] THE COURT: Mr. Houston, if you’re not responsive, then I can’t let you represent yourself, because I can’t let you disrupt the actions of the court—[¶] THE DEFENDANT: I’m not trying to disrupt the actions of—[¶] THE COURT:—and you’re not responding to the Court. [¶] THE DEFENDANT: Okay. I understand what you’re saying. I would like—[¶] THE COURT: Mr. Houston, you need to understand that when I speak, you need to be quiet. When I ask you questions, you need to respond. [¶] Now, do you understand that it’s not a good idea to represent yourself? [¶] THE DEFENDANT: No, I don’t understand that. [¶] THE COURT: Okay. Well, have you ever heard other people say that he who represents himself has a fool for a client? Have you ever heard that before? [¶] THE DEFENDANT: No. I did hear, “He who let’s his lawyer represent him is a fool.” [¶] THE COURT: Okay. You realize that you’re charged with a serious offense here? Do you understand that? [¶] THE DEFENDANT: No. I haven’t even received any kind of paperwork stipulating I’m charged with anything, so I don’t understand that.” (Italics added.)
The trial court explained the charge to Houston and that the maximum punishment was four years in state prison. Houston acknowledged that he understood. The court asked Houston if, knowing this, he still wanted to represent himself. Houston replied that “it was brought to the attention by this man here, who says two years with half time was a deal.” The court explained that “there’s no negotiations as to whether you represent yourself. Since Mr. Newman is your attorney up to this point, he’s been working to try to settle the case with the prosecution. If you want him to represent you, that’s more than fine with me. If he’s worked out some kind of deal, I’ll be happy to go along with it. I’ve known both lawyers for a long time. They know what they’re doing. If they’ve worked out a disposition, it’s a rare circumstance that I wouldn’t accept that. [¶] So if you want to work out some kind of deal and have Mr. Newman represent you, that’s great. If you want to represent yourself, and we can get through this proceeding, that will be great, too.”
The court asked Houston whether he wanted to confer with his attorney. Houston asked the court: “One question is that if I represent myself, am I entitled to my Sixth Amendment right?” The court replied that he was entitled to all of his constitutional rights whether he represented himself or not. Houston then asked if he had a right to cross-examine all witnesses against him if he represented himself, and the court said he did. Houston asked if he would have his right to appeal if counsel represented him and he entered into a plea bargain. The judge explained that generally he would give up his right to appeal if he entered into an agreed upon disposition, except as to a search or seizure question. Houston asserted that he had represented himself before, that he “took a deal,” and that he was “given [his] appeal rights by the judge that did the case.” The court replied that defendants have all their constitutional rights, but when they enter into a disposition, they give up certain rights. Nevertheless, the court explained, sometimes it is a better course of action to accept a plea bargain. Houston again asked if he would have his “appeal rights” if he entered into a plea agreement. The court answered, “If you want to enter into some kind of disposition that you’ve worked out with the other side, I’ll accept that, but part of that disposition is that you give up your right to appeal.”
Houston then asserted that he wanted to represent himself “under Faretta versus California.” The court reiterated that Houston was facing a maximum four-year prison term and self-representation was a “bad idea.” Houston indicated that he still wanted to represent himself. The court then warned Houston: “Okay. And you understand, sir, that if you’re disruptive in court, you’ll lose your right to represent yourself?” Houston confirmed that he understood.
The court again admonished Houston that he would be “setting [him]self up for a very difficult time” representing himself, because he would not get any special privileges and his inability to get to the law library would not constitute good cause for the court to “do anything.” Houston said he understood. Houston asked for a copy of the Supreme Court order pertaining to his rights to the law library; when the court refused, he accused the judge of denying him his rights.
The judge’s warnings concerning Houston’s in-court behavior continued. The court told Houston that he had to answer the court’s questions, and Houston responded that he was trying to make a record for appeal. The court warned Houston that the next time he interrupted the court or failed to respond to the court’s question, the hearing would be over, the court would find him disruptive, and he would not be allowed to represent himself.
The court next informed Houston that the prosecutor was well-trained and experienced and that he would have to in effect compete against her if he represented himself. Houston stated that he understood. The judge asked Houston if he had any legal training; Houston claimed he did, but when asked about it further, Houston referred to the “documents in here that I filed with the Secretary of State.” Houston understood that if he represented himself, he could not claim ineffective assistance of counsel.
Finally, the court asked Houston if he was going to “go along with the rules then and respond appropriately when [the court asked him] questions.” Houston responded, “As long as I don’t have to give up my rights or anything, yes, I would be willing to respond appropriately.”
The court granted Houston’s Faretta motion, stating: “Well, we’re going to let you represent yourself, Mr. Houston. The constitution says you get to, and so we’re going to let you.”
The judge advised Houston that his preliminary hearing would be on January 25. Houston then presented two handwritten motions to the court: a motion to withdraw his not guilty plea and a “motion for subpoena for production of documents and discovery.” The court denied the motion to withdraw his plea and denied the discovery motion as moot, in light of the discovery already provided by the prosecution.
D. Preliminary Hearing
Houston represented himself at the January 25, 2006 preliminary hearing. While the evidence at the hearing was held to be sufficient to require Houston to answer the charge, his conduct at the hearing is more significant for purposes of this appeal.
As to the evidence, Antronne Scotland, a sergeant at the California State Prison in Vacaville, testified that Houston, as an inmate in June 2004, told Scotland that he had ingested drugs, felt like he was having medical problems, and needed to get “them [the drugs] out.” Houston also told Sergeant Scotland that there were drugs in a can in his cell. Sergeant Scotland sent Houston to the infirmary and proceeded to Houston’s cell, where he found 9 to 15 bindles of drugs hidden in a small coffee can. Correctional Officer Juvenal Tamayo, assigned to observe Houston on “contraband watch,” went through Houston’s bowel movement and found six bindles, four containing a green leafy substance and two containing a crystal clear substance. Correctional Officer Paulo Ferreira, assigned to intensive supervision of Houston at the hospital in Manteca the next day, found three bindles wrapped in cellophane and several pieces of green latex in Houston’s feces. The green leafy material was later determined to be a usable amount of marijuana, and the crystalline substance was determined to be a usable amount of methamphetamine.
Houston cross-examined the prosecution witnesses at the hearing. Among other things, he inquired of Officer Tamayo whether he examined the feces for drugs out of Houston’s presence, thus creating the possibility that someone had planted the drugs in Houston’s feces.
Houston’s overall conduct at the hearing, however, continued to be disruptive. He asked irrelevant questions, including asking of one witness “Are you the injured party in this claim?” After the prosecutor’s objection was sustained, he asked the same question again. Houston then argued with the court after it made its rulings, claiming he had a right to ask the objectionable questions. He also accused the judge of violating his rights because the court had not filed Houston’s pro se documents. At one point, Houston stated: “But he doesn’t want to hear my documents. I’ve presented myself by special invitation as a secured party/creditor. He’s failing to answer these documents.” When given the opportunity to cross-examine one witness, he responded to the court: “No, satan. I would like—I would not like to cross-examine nobody, you devil.” Later, during the People’s direct examination of a witness, Houston interrupted: “Why don’t we hear these documents I got sitting on this table.” When the court asked Houston not to interrupt, he responded: “All right, satan.”
After the prosecution rested its case, Houston stated he “would like to call the People of the State of California to the stand.” The court advised that it was impossible to do so and asked Houston if he had any (particular) witnesses to call. Houston replied that it did not matter, because the court had been violating his rights “from day one.”
The court received a document from Houston entitled “Affidavit Denying Corporation Existence,” which contained a “Declaration & Certificate of Sovereign Status,” “Formal Sovereign Oath of Renunciation,” “Commercial Notice of Trade Name,” “UCC Financing Statement,” copies of Houston’s birth certificate and social security card, and a “Security Agreement.” Houston stated: “For the record, you guys have five days to answer this denying existence as a corporation. If no one answers it in five days, this matter is finished.”
The court held Houston to answer to the charges.
An information filed on January 30, 2006, charged Houston with possession of illegal substances (marijuana and methamphetamine) in prison (§ 4573.6) and alleged that Houston suffered a prior serious felony within the meaning of the three strikes law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and a prior prison term within the meaning of section 667.5, subdivision (b).
E. Termination of Houston’s Self-Representation
Court reconvened on February 8, 2006, for Houston’s arraignment. The court provided Houston with a copy of the information and asked if he wanted to waive arraignment, plead not guilty, and set the matter for trial. Houston responded: “Well, I would like to give this to the Court, the Information that you’ve given me. I accept it for value under Constitution Resolution 192, June 5th of 1933, under public policy; and I would like for you to answer the documents that I turned into you the last time I was here.”
The court again asked Houston if he wanted to enter a plea, and the following exchange ensued: “THE DEFENDANT: Under the First Amendment, freedom of religion, and also under the Sixth Amendment, to know the nature and causes of these charges. [¶] THE COURT: Okay. The court will enter a not guilty plea for Mr. Houston. [¶] THE DEFENDANT: I object to that. [¶] THE COURT: Mr. Houston, we’ve had this discussion. If you’re going to represent yourself, you have to abide by the Court rules. [¶] THE DEFENDANT: Well, I’m sovereign, and I don’t feel that I have to—[¶] THE COURT: All right. Mr. Houston, since you’ve continued to disrupt the court, I want you to be very clear about what’s going to happen. If you continue to interrupt me, and if you continue to fail to follow the rules of the Court, I’m going to revoke your right to represent yourself and appoint an attorney to represent you. [¶] THE DEFENDANT: Well, then fine, do that. Do what you feel is necessary. [¶] THE COURT: So you’re asking me to appoint a lawyer to represent you? [¶] THE DEFENDANT: No, I’m not asking you to do anything. I’m just going to let you violate my rights. If you don’t want to uphold justice, then fine. [¶] THE COURT: All right. That’s contemptuous of the Court, Mr. Houston. As I said, I can’t let you interrupt this court, so I am going to revoke your self-representation rights and reappoint Mr. Newman to—[¶] THE DEFENDANT: For the record—[¶] THE COURT: Mr. Houston, don’t interrupt the Court. Don’t interrupt the Court. [¶] THE DEFENDANT: Does anybody in here have a claim against me? [¶] THE COURT: We’ll appoint Mr. Newman and put it over one week for arraignment, and that will conclude today’s hearing.” (Italics added.)
F. No-Contest Plea and Sentence
On February 15, 2006, Houston was represented by counsel and entered into a plea bargain. Houston did not state that he wanted to represent himself or that he did not want counsel. Nor did his counsel seek another competency hearing.
Pursuant to the plea agreement, Houston pled no contest to the charge and admitted a “strike” prior. The court sentenced him to a four-year prison term (the two-year low term doubled under the three strikes law), to run consecutively to Houston’s commitment from another case. All other special allegations were dismissed.
Houston filed a notice of appeal and requested a certificate of probable cause, which the trial court denied. Houston’s appellate counsel subsequently applied for a certificate of probable cause, which the trial court granted.
II. DISCUSSION
Houston contends that the court erred in (1) revoking his self-representation and (2) failing to suspend proceedings sua sponte to have him evaluated for a third time pursuant to section 1368, in order to determine whether he was competent to stand trial. As framed by the parties, the essential question is whether Houston’s conduct at the January 18, January 25, and February 8 hearings was sufficiently disruptive for the court to revoke his self-representation, yet not so indicative of mental incompetence as to compel the court to order another section 1368 evaluation. In addition, respondent contends that the appeal should be dismissed because Houston waived his right to appeal in his plea agreement. We address the appealability issue first.
A. Appealability
Paragraph 6 of Houston’s written “Waiver of Constitutional Rights and Declaration in Support of Defendant’s Motion to Change Plea” states: “Even though I will be convicted in this case as a result of my plea, I have the right to appeal the judgment and rulings of the court. I give up my right of appeal.” (Italics added, bold omitted.) Houston initialed this provision and signed the waiver form, acknowledging that his attorney had read and explained the document to him, and that he freely, voluntarily and knowingly entered into the agreement.
Because Houston gave up his right to appeal as part of the plea bargain, respondent maintains that Houston’s appeal should be dismissed. We disagree. Houston entered into the plea agreement after the trial court revoked his self-representation and after the hearings at which Houston claims the court should have ordered another section 1368 evaluation. We will therefore turn to the resolution of the self-representation and section 1368 issues. (See also People v. Robinson (1997) 56 Cal.App.4th 363, 369-370 [denial of Faretta motion may be considered notwithstanding defendant’s subsequent plea]; People v. Castro (2000) 78 Cal.App.4th 1402, 1416 (Castro), [defendant’s competence to stand trial may be reviewed on appeal notwithstanding defense counsel’s failure to raise the issue], disapproved on other grounds in People v. Leonard (May 17, 2007, S054291) __ Cal.4th __ [2007 Cal. Lexis 5071].)
B. Termination of Houston’s Self-Representation
A criminal defendant has a right to represent himself at trial under the Sixth Amendment to the United States Constitution. (Faretta, supra, 422 U.S. 806; People v. Welch (1999) 20 Cal.4th 701, 729 (Welch).) However, the trial court may terminate self-representation if the defendant is disruptive. (See Faretta, supra, at pp. 834-835, fn. 46 [trial court “may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct”]; People v. Fitzpatrick (1998) 66 Cal.App.4th 86, 92 [the right of self-representation is not absolute and is not a license to abuse the dignity of the courtroom].)
A defendant’s request for self-representation must be granted if the defendant is mentally competent to waive his right to counsel and makes his request (1) knowingly and intelligently, having been apprised of the dangers of self-representation; (2) unequivocally; and (3) within a reasonable time before trial. (Welch, supra, 20 Cal.4th at p. 729.)
The trial court must therefore decide whether the defendant “is and will remain so disruptive, obstreperous, disobedient, disrespectful or obstructionist” as to preclude the exercise of the right to self-representation. (Welch, supra, 20 Cal.4th at p. 735.) In making this determination, the court shall consider the nature of the misconduct, how it threatens to impair the core integrity of the trial, and other factors such as: the “availability and suitability of alternative sanctions” short of complete withdrawal of the right of self-representation, where the misconduct was “more removed from the trial proceedings, more subject to rectification or correction, or otherwise less likely to affect the fairness of the trial”; whether the defendant had been warned that particular misconduct will result in termination of in propria persona status; and whether the defendant has intentionally sought to delay or disrupt the trial. (People v. Carson (2005) 35 Cal.4th 1, 10 (Carson).)
The trial court’s decision to terminate a defendant’s self-representation is reviewed for an abuse of discretion. (Carson, supra, 35 Cal.4th at p. 12.) The decision “will not be disturbed in the absence of a strong showing of clear abuse.” (People v. Davis (1987) 189 Cal.App.3d 1177, 1201, italics added, disapproved on other grounds in People v. Snow (1987) 44 Cal.3d 216, 225-226.) As our Supreme Court has admonished: “We have an obligation to interpret Faretta in a reasonable fashion to vindicate the legitimate rights of defendants while at the same time avoiding turning the trial into a charade in which a defendant can continually manipulate the proceedings in the hope of eventually injecting reversible error into the case no matter how the court rules. Defendant’s actions presented the court with a ‘judgment call’ under combat conditions upon which we may, and must, give deference to the trial court.” (People v. Clark (1992) 3 Cal.4th 41, 116.)
Here, the trial court did not abuse its discretion in revoking Houston’s self-representation, in light of the disruptive nature of his conduct at the arraignment as well as at prior hearings, the warnings given to him by the trial court, indications that his conduct was intended to disrupt, and the likelihood that he would continue to disrupt court proceedings and refuse to obey court rules in the future.
At the January 18 hearing on his Faretta motion, Houston kept asking the judge his name and if anyone had a claim against him, to the point that the court sent Houston to his holding cell. Upon his return, Houston refused to respond to the court’s questions. He claimed that he did not understand he was represented by a lawyer or that it was not a good idea to represent himself, and he refused to respond if he had been in prison before. He denied that he was charged with anything, until the court read the charges. When the court tried to explain the disadvantages of self-representation and waivers, Houston interrupted with irrelevant questions and accused the court of violating his rights. The court warned Houston that if he was disruptive, interrupted the court again, or failed to answer the court’s questions, he would not be allowed to represent himself.
Houston’s disruptive conduct nonetheless continued at the preliminary hearing on January 25, 2006. He argued with the court after it made rulings, claiming he had a right to ask irrelevant questions. He accused the judge of violating his rights because the court had purportedly not filed his documents. During the prosecutor’s examination of a witness, Houston again insisted on the court hearing his “documents” and kept interrupting the court. He twice referred to the judge as “satan.” After the court denied his request to “call” the “People of the State of California,” Houston accused the court of violating his rights “from day one.” Houston’s comments, by their content as well as their contrast to his ability to ask appropriate questions of Officer Tamayo on cross-examination, reasonably could have led the trial court to conclude that Houston was intentionally attempting to disrupt the proceedings and manufacture issues for appeal.
When Houston was examined by Dr. McGrew a few weeks earlier, Dr. McGrew observed that appeals were Houston’s hobby and that Houston admitted he had done the crime and was willing to do the “time” but believed there was always a loophole for purposes of appeal.
Houston’s disruptive conduct continued at his arraignment. He refused to enter a plea. When the court entered a not guilty plea on Houston’s behalf, Houston objected. The court again warned Houston that he had to follow the rules if he wanted to represent himself, to which Houston retorted: “Well, I’m sovereign, and I don’t feel that I have to.” The court once more warned Houston that if he disrupted the court and failed to follow the rules, his right to represent himself would be revoked. Houston responded, “Well, then fine, do that. Do what you feel is necessary.”
In sum, Houston’s repeatedly interrupted the court and refused to abide by courtroom rules. His misconduct continued for three separate hearings, despite multiple warnings from the court that he would lose his right to represent himself if he persisted. It was not unreasonable for the court to conclude that Houston’s conduct would continue at trial and threaten the fairness of the proceedings. Furthermore, when the court indicated it was about to terminate Houston’s pro per status, Houston responded: “Well, then fine, do that. Do what you feel is necessary.” (Italics added.) While this may fall short of a waiver of his right to self-representation, it is a further indication that, in the totality of the circumstances, the court did not abuse its discretion in terminating Houston’s self-representation.
Houston argues that the court acted arbitrarily and prematurely because his comments, though irrelevant and irritating, had not really been contemptuous or threatened the fairness of the proceedings, and they occurred at an arraignment rather than the actual trial. Therefore, Houston argues, the court could have merely entered the plea and set the matter for trial rather than revoking his pro per status.
We disagree. Houston’s conduct did not occur only at his arraignment, but at three separate hearings, including his preliminary hearing. In light of Houston’s persistence in such behavior despite repeated admonitions, it was reasonable to believe that he would also be unwilling to abide by rules of procedure and courtroom protocol even at trial. Indeed, Houston’s antics at the preliminary hearing—during the examination of witnesses—certainly gave an indication of how Houston would likely act at trial. The court was not required to permit Houston to engage in disruptive and insolent behavior at pretrial proceedings just to see if he would finally desist at trial. (See Faretta, supra, 422 U.S. at pp. 834-835, fn. 46 [right of self-representation “is not a license to abuse the dignity of the courtroom” or “a license not to comply with relevant rules of procedural and substantive law”].)
Carson, on which Houston relies, is factually distinguishable. There, the pro per defendant was stripped of his right to represent himself after he had engaged in the improper acquisition of discovery. Our Supreme Court first determined that out-of-court conduct, as well as in-court conduct, could be the basis for terminating a defendant’s pro per status. The matter was then remanded to the trial court for a full hearing on the reasons and necessity for terminating the defendant’s right of self-representation. (Carson, supra, 35 Cal.4th at pp. 12-13.) Here, by contrast, the basis for terminating Houston’s pro per status was not out-of-court conduct, which is more remote to trial, but in-court conduct. Furthermore, unlike the situation involving out-of-court conduct, the record in this matter is fully developed and no further hearing is necessary to determine the basis or reasonableness of the trial court’s decision.
Houston’s reliance on People v. Poplawski (1994) 25 Cal.App.4th 881 (Poplawski) is also misplaced. There, the trial court had revoked the defendant’s pro se status because, the court found, the defendant had problems with the English language, was unfamiliar with legal language (namely, the word “motion”), and did not have sufficient understanding of the proceedings. (Id. at p. 891.) The Court of Appeal held that the trial court had abused its discretion. In Poplawski, however,the defendant had not engaged in any disruptive behavior or abusive conduct. (Id. at p. 889.) Here, by contrast, Houston had repeatedly indulged in such behavior and conduct over the course of three hearings.
The trial court did not abuse its discretion in terminating Houston’s self-representation.
C. Denial of Houston’s Third Request for Evaluation of Competency
Houston maintains that the trial court should have questioned his competency at the “proceedings prior to and upon entry of plea.” Specifically, Houston contends, after Dr. McGrew opined that Houston was competent to proceed and the court reinstated proceedings on January 10, 2006, Houston exhibited bizarre behavior, showed a lack of understanding of the proceedings, and was fixated on irrelevant matters at the hearings on January 18, January 25, and February 8. Consequently, he maintains, the court should have suspended proceedings for a third time to evaluate Houston’s competency under section 1368.
Section 1367 states: “A defendant is mentally incompetent . . . if, as a result of mental disorder . . . 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.” If a doubt arises in the judge’s mind about the mental competence of the defendant, the court must sua sponte inquire into the matter. (§ 1368.) Thus, “when the court becomes aware of substantial evidence which objectively generates a doubt about whether the defendant is competent to stand trial, the trial court must on its own motion declare a doubt and suspend proceedings even if the trial judge’s personal observations lead the judge to a belief the defendant is competent.” (Castro, supra, 78 Cal.App.4th at pp. 1413-1416, italics added.) Evidence in this context is “substantial” if it raises a reasonable doubt about the defendant’s competence to stand trial. (People v. Kelly (1992) 1 Cal.4th 495, 542 (Kelly); Castro, supra, at pp. 1413-1416.) By contrast, evidence that “merely raises a suspicion that the defendant lacks present sanity or competence but does not disclose a present inability because of mental illness to participate rationally in the trial is not deemed ‘substantial’ evidence requiring a competence hearing.” (People v. Deere (1985) 41 Cal.3d 353, 358, disapproved on other grounds in People v. Bloom (1989) 48 Cal.3d 1194, 1228, fn. 9.)
A different standard applies where, as here, the defendant has previously been found to be competent. “‘When a competency hearing has already been held and 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.’” (Kelly, supra, 1 Cal.4th at p. 542, italics added.) Indeed, “once 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 (Marks); see People v. Danielson (1992) 3 Cal.4th 691, 727 (Danielson), disapproved on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)
“Reviewing courts give 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.” (Marks, supra, 31 Cal.4th at p. 220, internal quotations marks omitted.)
Here, on January 10, 2006, Houston had been found competent to stand trial after a second competency hearing. The question, therefore, is whether on January 18, January 25, and February 8, there was a substantial change of circumstances or new evidence casting a serious doubt on the validity of the competency finding of January 10. Houston fails to make this showing.
In the first place, Houston’s continuous interruptions and accusations against the court, including assertions that his “rights” were being violated, was the type of behavior he exhibited before he was found competent in January 2006. He complained to the doctor at Atascadero that his rights were being violated because he was not to go to the library to study his case. Dr. McGrew also noted that Houston had complaints about his rights being violated.
Furthermore, Houston’s behavior on January 18, January 25, and February 8 could be construed as conduct calculated to disrupt, rather than indications of mental incompetence. For example, when Houston claimed he was “confused” about whether he had a lawyer, the court observed: “Well, for the record, you’re clearly not confused. Your counsel is right there next to you.” (Italics added.) Houston asserted on January 18 that he did not understand that he was charged with a serious offense, because he had not received any paperwork “stipulating” that he was charged with anything; when the court read Houston the charges, however, Houston said he understood them. In addition, when the court warned Houston that he would not get something he wanted if he continued certain behavior, Houston was able to adjust his behavior to comply with the court’s directive. For example, when the court was taking the Faretta waiver, it asked Houston if he was in prison. Houston refused to respond. The court warned him that if he was not responsive or disruptive of the court, he could not represent himself. Houston then stated that he understood what the court was saying.
Houston’s behavior could also be construed as attempting to create error. He repeatedly asserted that the court was violating his rights by not filing his documents or allowing him to ask immaterial questions. At the February 8 hearing, he advised the court that he was “just going to let [the court] violate [his] rights” after the court warned that his right of self-representation was going to be revoked.
Moreover, the record of the preliminary hearing suggests that Houston understood the charges and was capable of assisting in his defense. On cross-examination of Sergeant Scotland, Houston asked Scotland if Houston had told Scotland what Houston thought was going to happen to him. Scotland asked Houston to clarify the question, and Houston appropriately responded, “did I tell you that I had a safety concern?” Houston then asked if he told Scotland that he was “pressured,” and Scotland said that he had.
Houston’s cross-examination of Officer Tamayo also suggested that Houston was mentally competent. On direct, the prosecutor had elicited from Tamayo that he found bindles of drugs in Houston’s feces. On cross-examination, Houston asked Tamayo if he ever took the feces out of Houston’s presence. The officer admitted he had. Houston then asserted: “So there is—there is a reason to believe that anything could have been put into that bag at any given time out of my presence.” When the trial court informed Houston that he was merely making a statement and needed instead to ask a question, Houston complied, asking the officer: “Well, is it possible that anything could have been put into that bag out of my presence?” The officer conceded, “Yes.”
Lastly, at the time he agreed to the plea bargain and entered his plea, Houston was represented by his previous attorney who had earlier asked that the proceedings be suspended to determine Houston’s competency. At the plea hearing, however, counsel did not express any doubt about Houston’s competency.
Certainly Houston engaged in behavior which, based on the written record and viewed in isolation, appears to be rather bizarre: giving illogical or nonresponsive answers to the court’s questions, characterizing himself as “sovereign,” calling the judge “satan,” and focusing on certain documents that appear irrelevant to the case. However, “‘“more is required to raise a doubt [of competence] than mere bizarre actions [citation] or bizarre statements [citation] . . . or 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 [citation].”’” (Danielson, supra, 3 Cal.4th at p. 727.) In the totality of circumstances and the context of Houston’s statements, it was reasonable for the court to conclude that Houston’s ostensibly bizarre conduct was not reflective of mental incompetence, but of Houston’s design to disrupt, delay, and create error.
Houston has failed to show that there was a “substantial change of circumstances or new evidence . . . casting serious doubt on the validity of the prior finding of [his] competence.” (People v. Medina (1995) 11 Cal.4th 694, 734; Kelly, supra, 1 Cal.4th at pp. 542-543.) He therefore has not demonstrated that the trial court had a sua sponteduty to suspend the proceedings for a third competency evaluation.
III. DISPOSITION
The judgment is affirmed.
We concur. SIMONS, Acting P. J., GEMELLO, J.