Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. INF059095, Edward D. Webster, Judge. Affirmed.
Dabney B. Finch, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Robin Derman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
Defendant and appellant Omero Ochoa Lopez appeals his jury conviction for one count of methamphetamine possession (Health & Saf. Code, § 11377, subd. (a)) and one count of resisting arrest (Pen. Code, § 148, subd. (a)(1)). On due process grounds, he argues his conviction should be reversed because he was deprived of his right to be mentally present during his trial.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant testified at trial and admitted possessing methamphetamine but contested the charge of resisting arrest. Two police officers testified they were on patrol in an apartment complex about 11:00 p.m. on June 27, 2007. They were looking for an individual who had an outstanding felony warrant when they noticed defendant. Defendant was sitting in a chair in front of a garage with the garage door open and talking to a woman who was standing nearby. The officers could see defendant because there were a number of lights on in the area, and one of the officer’s recognized defendant as a parolee. The officer was also aware defendant had recently been the victim of a shooting.
Based on his status as a parolee, the officers decided to do a parole compliance check and asked defendant to stand up. Defendant stood up and began to comply with an officer’s directive to place his hands behind his back, but then jerked away and reached for his front waistband. Defendant also lunged forward, so one of the officers grabbed him in a bear hug. The other officer then moved quickly toward defendant and pushed him down. All three men went down to the ground.
During the struggle, both officers repeatedly yelled at defendant to stop resisting and to take his hands out of his waistband. Defendant did not comply even though the officers struck him several times in the rib cage and on the back of his head. One of the officers called for backup, and they both used their weight to pin defendant on the ground so he could not get away. One of the officers then saw defendant pull his left hand out from his front waistband. According to the officer, defendant was holding a plastic baggy of methamphetamine in his left hand and began smearing it into the asphalt. Defendant was finally handcuffed and taken into custody when additional officers arrived to assist. The officers testified defendant never said anything or indicated he was in pain during the struggle and did not have any difficulty walking to the patrol car.
Defendant testified he had the methamphetamine in his left hand when the officer told him to stand up for a parole search. He told the officer he could not get up on his own, so the officer helped him up, and he “lost [his] step” while he was being searched. At this point, he said he pulled his hands away from the officer to break his fall and dropped the methamphetamine. The other officer thought defendant was going to run and “rushed” him. However, he said he was not trying to run and could not have run because his legs were still in poor condition from the recent gunshot incident. He had been shot just below his right knee and it was still painful and swollen. His left leg was also swollen as a result of complications from the gunshot incident. A bullet also traveled through his stomach and he was still having pain in his belly. At this point in time, he needed help just to get up or out of bed. He also said he put his hands on his stomach when he fell to the ground because he had recently had staples removed from surgery related to his gunshot wound, felt pain when the officers grabbed him, and feared further injury. He also claimed he told the officers more than once he was in distress because of the injuries to his belly. He did not recall the officers telling him to stop resisting. He said they just kept hitting him and telling him to shut up.
The woman who was talking to defendant when police arrived also testified for the defense. She said she did not see defendant reaching for his front waistband before he fell. In her opinion, defendant lost his balance and fell while the officers were patting him down, and the officers jumped on him and started hitting him. She heard defendant yelling he was in pain and just had surgery. She also heard the officers telling him to “shut up.”
The jury convicted defendant of both counts. In a bifurcated proceeding, the trial court also found defendant previously served three prison terms within the meaning of section 667.5, subdivision (b). The court sentenced defendant to a total of five years in state prison.
DISCUSSION
Because he slept through parts of his trial, defendant contends his constitutional right to be mentally present was violated, necessitating a reversal and remand for a new trial. Defendant believes the record shows he had no control over his falling asleep and was not voluntarily sleeping during his trial. Other than having him evaluated for drug use, defendant also argues the trial court did not fulfill its duty to determine what was causing him to fall asleep or to remedy the situation. Because he believes the evidence was “close” on the charge of resisting arrest and his credibility was essential to establishing reasonable doubt, defendant contends it was prejudicial for the jury to see him having trouble staying awake during the proceedings. He also believes he was precluded from assisting his counsel at a critical point, because he was falling asleep while his attorney was cross-examining one of the arresting officers.
Defendant cites two points in the record indicating he was having trouble staying awake during his trial. First, on the afternoon of October 1, 2008, after jury voir dire commenced and during “initial questioning,” the court reporter, court clerk, and courtroom deputy all noticed defendant had “fallen asleep... such that the head hit the table.” During a discussion on the record but outside the presence of the jury, the court indicated the deputy thought defendant might be under the influence. Defense counsel acknowledged he too had noticed defendant falling asleep and told him he needed to stay awake. He also sent defendant outside during a recess to get some coffee. Counsel offered to waive “anything he may have missed because of his temporary momentary unconsciousness.” The court suggested an evaluation by the deputy who was a drug recognition expert and noted it was a “bit unusual” for a defendant to fall asleep during trial, but counsel initially objected to an evaluation.
The court then asked the deputy to articulate his concerns, and the deputy said, “I’ve noticed him fall asleep four times since we’ve started and his eyes have been a little droopy. I’ve also been advised... he was a little over an hour late....” Defense counsel agreed to an examination of defendant by the deputy, but at counsel’s request, the court told the deputy to examine defendant “without asking any questions,” such as “when did you last sleep” or use drugs. Following a brief examination, the deputy reported defendant was not under the influence and was “just tired.”
The court admonished defendant: “The law is that if you choose to sleep or you choose to use drugs and so you’re not aware of what’s going on, that’s kind of a voluntary act and you bear the responsibility for that. But your attorney’s going to need your help.... If you’re not fully awake, not getting sleep at night, you can’t do that and you hurt yourself. [¶] Also, it’s really a bad impression that you give people that this case is not important enough to stay awake....” Defendant responded, “I understand, sir.” The court then decided to continue with voir dire, stating, “I don’t think he’s missed anything significant at this point. [¶]... [¶] We’re just in the initial questioning. Further, [he is] voluntarily going to sleep. The cases are clear if he chooses to do that that’s really his fault. Again, I don’t think I need to take a waiver at this point in time. I think it’s fair that he’s been now forewarned.” Defendant responded affirmatively when asked if he could stay awake for another hour.
The next morning, October 2, 2008, defendant was late to court because of transportation issues. Defense counsel explained this was because defendant did not have a car and had to travel all the way from Indio because his case had been transferred to Riverside. In the event he was late to court again in the future, defendant waived his right to be present and allowed counsel to appear and start trial on time.
As the proceedings began again on the morning of October 3, 2008, the court said to defendant, “It’s good to see you on time”; defendant replied, “Thank you.” Immediately thereafter, the second on-the-record discussion began about defendant’s problem with staying awake. Defense counsel said he noticed defendant “nodding off” on the previous afternoon while he was cross-examining one of the arresting officers. Counsel further reported his belief this problem was the result of medical and/or “blood sugar issues associated with his [gunshot] injuries.”
According to counsel, defendant had actually gotten out of his seat in the courtroom “on at least four occasions” the previous day to stay awake, but counsel had been advised this presented a security issue for the deputy. Counsel requested defendant be allowed to get up and move around if he felt drowsy. After a brief discussion, it was agreed defendant could do so if he first signaled the deputy. In addition, the court agreed to tell the jurors defendant may sometimes need to stand up “[t]o relieve discomfort.” The court also indicated it was willing to “take a short break to address this as well.” Defendant indicated he understood and said there was “no problem” with the agreed resolution.
“Due process prohibits the criminal prosecution of a defendant who is not competent to stand trial, and the state must provide procedures for determining the defendant’s competence. [Citations.] A state trial judge must conduct a competency hearing, regardless of whether defense counsel requests one, whenever the evidence before the judge raises a bona fide doubt about the defendant’s competence to stand trial. [Citations.] A bona fide doubt exists if there is ‘ “substantial evidence of incompetence” ’ [citations], or substantial evidence that the defendant lacks ‘sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding’ or ‘a rational as well as factual understanding of the proceedings against him.’ [Citations.] [¶]... Although no particular facts signal a defendant’s incompetence, suggestive evidence includes the defendant’s demeanor before the trial judge, irrational behavior of the defendant, and available medical evaluations of the defendant’s competence to stand trial. [Citations.]” (Williams v. Woodford (9th Cir. 2002) 384 F.3d 567, 603-604.)
“[T]here is no constitutional prohibition against the trial and conviction of a defendant who fails to pay attention in court—whether out of indifference, fear, confusion, boredom, or sleepiness—unless that defendant also cannot understand the nature of the proceedings against him or adequately assist counsel in conducting a defense.” (Watts v. Singletary (11th Cir. 1996) 87 F.3d 1282, 1287 (Watts).) “Because legal competency is primarily a function of defendant’s role in assisting counsel in conducting the defense, the defendant’s attorney is in the best position to determine whether the defendant’s competency is suspect. Accordingly, failure of defense counsel to raise the competency issue at trial, while not dispositive, is evidence that the defendant’s competency was not really in doubt....” (Id. at p. 1288.)
“It is a generally accepted rule that a trial judge should afford to a defendant [with a disability or some other affliction] such reasonable facilities for confronting and cross-examining the witnesses as the circumstances will permit. But [the court] cannot restore sight to the blind, hearing to the deaf or speech to the mute. [The court] need only give such aid to intelligent appreciation of the proceeding as a sound discretion may suggest.” (People v. Guillory (1960) 178 Cal.App.2d 854, 861 (Guillory).)
Self-induced or self-inflicted absences from trial cannot serve as the basis for establishing a violation of a defendant’s right to be mentally present during trial. (Guillory, supra, 178 Cal.App.2d at pp. 858-862.) For example, the defendant in Guillory wore a hearing aid to court but did not bring any batteries for the device with him. Based on the particular circumstances of the case, the appellate court concluded this “amounted to a waiver of the right to be mentally present....” (Id. at p. 861.) “If this were not the rule, many persons, by their own acts, could effectively prevent themselves from ever being tried.” (Ibid.) For example, a diabetic defendant could “put himself in insulin shock by simply taking insulin and then not eating, or by refusing to eat, or can disable himself by failing to take insulin.” (Ibid.)
In our view, there is nothing to support defendant’s contention the trial court did not fulfill its duty to make reasonable inquiries and accommodations. In both instances when the issue of defendant’s drowsiness was raised, the court acted appropriately. In the first instance, the court had the deputy evaluate defendant to determine whether he was under the influence of drugs and was advised defendant was “just tired.” At this time, the court also appropriately warned defendant about the importance of staying awake during trial and advised him the law would consider falling asleep during trial as a voluntary act. Defendant responded that he understood and also indicated he could stay awake for the remainder of the proceedings that day. These facts were simply not enough to cause the court to question defendant’s competency.
When the issue was raised again on the third day of trial, the court made a reasonable and appropriate accommodation by allowing defendant to stand when he felt drowsy. The court also provided a reasonable explanation to the jury to address any concerns of prejudice and told counsel he could request a break from the proceedings if his client was having difficulty staying awake. When questioned by the court, defendant indicated there was “no problem” with the agreed resolution. After this point, defendant cites no further references indicating he was unable to remain awake during the remainder of the proceedings. From these facts, it is reasonable to infer (1) defendant did have control over his drowsiness, and (2) the court’s accommodations were sufficient to resolve the problem. We therefore reject defendant’s claim he had no control over his drowsiness and was involuntarily sleeping during his trial.
Despite defendant’s arguments to the contrary, there is nothing to show defendant’s sleepiness affected his ability to understand the nature of the proceedings against him or to adequately assist his counsel. At all times when questioned by the court, defendant demonstrated competency by acting and responding appropriately. As outlined above, defendant’s counsel was in the best position to assess defendant’s competency. Counsel never presented any evidence that would have given the court reason to question defendant’s ability to consult with and assist his attorney as needed or his capacity to understand the nature of the proceedings against him.
The record also does not support defendant’s claim he was prejudiced because he fell asleep during the cross-examination of a key witness and was therefore precluded from assisting his counsel by pointing out any problematic aspects of the testimony. As the Eleventh Circuit observed in Watts, supra, 87 F.3d at page 1289, if defendant’s counsel had encountered any unforeseen or problematic testimony, “there is no reason to believe that he could not have awakened [the defendant]—requesting a recess if necessary—to explain and discuss the matter. The record reveals nothing to suggest that [the defendant] was incapable of providing the level of input necessary to mount an adequate defense.” (Fns. omitted.) Indeed, the record shows defendant was able to testify in his own defense, and during his testimony, he demonstrated an acute awareness of the evidence against him. At all times, he responded appropriately to questions, and his responses were clear, reasoned, and helpful to his defense. He was able to dispute the testimony of the officers in great detail. However, it is apparent the jury simply did not believe his version of the events. Thus, it is our view defendant merely speculates, without support, that his sleepiness during trial was prejudicial to his defense.
In reaching our decision, we reject defendant’s reliance on People v.Berling (1953) 115 Cal.App.2d 255 (Berling). The appellate court in Berling reversed the defendant’s conviction for murder and remanded the case for a new trial “because of the violation of defendant’s fundamental right to be physically and mentally present and fully conscious during all stages of the trial.” (Id. at p. 272.) The facts and circumstances of Berling are extreme and are thus easily distinguished from the facts presented in this case. In Berling, the record was replete with evidence strongly supporting a conclusion the defendant was actually incompetent during her lengthy trial, and there was nothing to suggest her condition was self-induced. Although there were numerous recesses, the trial was allowed to proceed despite the defendant’s poor mental condition. She not only “collapsed into unconsciousness while on the witness stand,” but also “fell from the witness box” several times. She “fainted some 11 times during the trial,” and was described as unconscious or only semiconscious, frequently dizzy, groggy, inattentive to surroundings, unable to think clearly, and most importantly, was “unable to advise with counsel.” (Id. at p. 270, italics added.)
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER, J., RICHLI, J.