Opinion
E047004
12-24-2009
THE PEOPLE, Plaintiff and Respondent, v. REGINALD GERMAN LOUIS TAYLOR, Defendant and Appellant.
Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Barry Carlton and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in Official Reports
On October 2, 2007, defendant Reginald German Louis Taylor confronted his ex-wife and her neighbor in front of their apartment complex. Defendant pulled out a knife, sliced open the neighbors stomach, and stabbed him two times before the knife could be wrestled away from him.
Defendant was convicted of attempted premeditated, deliberate, and willful murder; assault with a deadly weapon; and making criminal threats. Defendant now contends:
1. The trial court erred by refusing to grant his Faretta motion to represent himself made five months prior to trial. 2. The trial court should have stayed the sentence on the assault with a deadly weapon conviction pursuant to Penal Code section 654, and, in the alternative, if the sentence was properly imposed, the trial court erroneously imposed the attendant bodily injury enhancement to run consecutive to the life terms imposed. 3. He is entitled to presentence custody credits under section 2933.1.
Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525, 45 L.Ed.2d 562].
All future statutory references are to the Penal Code unless otherwise specified.
We conclude that even if the trial court erred by denying his Farretta motion, defendant thereafter abandoned his request to represent himself. Moreover, we agree that the trial court erred in sentencing and by denying presentence conduct credits. We will modify the sentence and order the trial court to modify the abstract of judgment.
I
PROCEDURAL BACKGROUND
A Riverside County Superior Court jury found defendant guilty of the attempted willful, premeditated, and deliberate murder of Alvin Jones (§§ 664/187) and assault with a deadly weapon (§ 245, subd. (a)(1)). For these counts, the jury found defendant had personally inflicted great bodily injury on Jones. (§ 12022.7, subd. (a).) The jury also found defendant guilty of one count of making criminal threats against his ex-wife. (§ 422.)
The jury also found true that defendant had suffered two prior serious and/or violent felony convictions (§§ 667, subds. (a), (c) and (e)(1), 1170.12, subd. (c)(1)) and that he had served two prior prison terms (§ 667.5, subd. (b)).
Defendant was sentenced to 25 years to life under the three strikes law for the attempted premeditated and deliberate murder conviction, plus 3 years for the great bodily injury enhancement, plus 2 years for each of the 667.5, subdivision (b) priors. For defendants assault with a deadly weapon and making criminal threats convictions, the trial court imposed 25 years to life for each to run concurrent to the attempted murder; however, the trial court ran the great bodily injury enhancement for the assault with a deadly weapon consecutive to the imposed sentence on the attempted murder. The resulting sentence was 25 years to life plus 8 years.
II
FACTUAL BACKGROUND
Since defendant does not raise a claim that the evidence was insufficient to support his conviction, we provide only a brief statement of facts.
On October 2, 2007, defendant called his ex-wife, Cathy Radcliffe Taylor, early in the morning and threatened to kill both her and her neighbor, Alvin Jones. Taylor believed defendant was serious.
Defendant and Mrs. Taylor had been married for six years and had officially divorced in 2005. Mrs. Taylor had told defendant on September 29, two days prior to the stabbing incident, that they were divorced. Defendant had not known about the divorce before that date because he had been incarcerated and had just been released.
That evening, Taylor and Jones drove back to their apartment complex in Desert Hot Springs and found defendant standing in front of the complex waiting for them. As they walked toward Taylors apartment, defendant blocked their way. Jones asked defendant what he wanted. Defendant had his hands behind his back. Defendant immediately approached Jones and sliced open his stomach with a knife. Defendant stabbed Jones two more times. When defendant tried a third time to stab Jones in the heart, Jones was able to struggle with defendant, and Mrs. Taylor got the knife away from him. Defendant fled the scene.
Jones had serious injuries to his chest, abdomen, and hand. He had six scars resulting from the stabbings. Taylor and Jones denied that Jones ever made aggressive motions toward defendant. Jones had not met defendant prior to that day.
Defendant testified on his own behalf. He claimed that Taylor had told him that Jones had been hitting her and a foster child who was staying with her. Two days prior to this incident, Taylor and defendant had had sex in a motel together. Defendant was waiting at Taylors apartment complex for her to come back so he could get some of his clothes.
When Taylor and Jones arrived back at the apartment complex, Jones asked defendant what he was doing there, since Taylor was no longer "his girl." Defendant told Jones he was just there to get his clothes. Jones put his fists up to defendant. Jones then punched defendant five or six times in the face and the same number of times in the stomach. Joness son came out of his apartment and started kicking defendant. Defendant pulled out a knife and "cut" Jones. Defendant was able to get away from Jones and ran away.
Defendant denied threatening Taylor prior to the incident. Police apprehended him while he was going to the bathroom in the bushes at the gas station. They sent a police dog after him, and he was bitten by the dog. Defendant did not have any visible injuries on his face when he was detained.
The jury was presented with evidence of fingerprint comparisons and section 969b packets showing defendant had suffered two prior serious and violent felony convictions and that he had served two prior prison terms.
III
DENIAL OF FARETTA MOTION
Defendant contends that the trial court erred by denying his Farretta motion brought several months before trial.
A. Additional Background
David Prendergast from the Riverside County Public Defenders office appeared for defendant on November 16, 2007. He questioned defendants competency to stand trial. He had attempted to have an Evidence Code section 1017 evaluation performed on defendant, but defendant had refused to meet with the doctor. The trial court ordered that defendant undergo a competency evaluation pursuant to Penal Code section 1368. After reviewing the doctors report on February 15, 2008, the trial court found defendant competent to stand trial.
Evidence Code section 1017 provides that an attorney can request the appointment of a psychotherapist to evaluate defendant for a potential defense based on a mental or emotional condition.
On March 18, 2008, defendant brought a Marsden motion against Prendergast that was denied by the trial court. On April 17, 2008, defendant advised the trial court that he wanted to represent himself. The trial court advised defendant that he needed to fill out the propria persona form. After a brief recess, defendant returned the form blank and advised the trial court that he was unable to read or write.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
The trial court then informed defendant that in order to represent himself, he would have to be familiar with legal procedures. Defendant indicated that he understood and that he had gone to school until the 12th grade.
Defendant advised the trial court he was aware he was being charged with attempted murder but did not know the penalty. He was not aware of the nature of the other charges. He had had someone read him the police reports. Defendant then indicated that he knew he could get "life" or a "whole lot of time" if convicted.
The trial court stated, " . . . Im going to tell you that self-representation is almost always unwise. You understand that, sir?" Defendant responded, "I understand a whole lot. This aint my first time. I represented myself before on other cases." When asked what other cases, defendant responded that it was on a manslaughter case in Los Angeles occurring 20 years prior. Defendant claimed that he was "released" on the case. The following exchanged then occurred:
"[THE COURT]: Do you understand, . . . if you represent yourself, that you would have to abide by all the same rules that lawyers abide by? "[THE DEFENDANT]: Yes, sir. "[THE COURT]: You understand that you would receive no help from the judge? "[THE DEFENDANT]: I understand as a young man I can ask for Court fees for private investigator. "[THE COURT]: . . . [T]hats not what I asked you. [¶] Do you understand that you will receive no help from the judge in this case if you represent yourself?" Defendant responded that he understood that he would receive no help. He also understood that the People would be represented by an experienced attorney. When the trial court asked defendant if he was aware that he would not receive special library privileges, he responded, "No, I didnt know that." The trial court then advised defendant, "Well, do you understand that you will not have a staff of investigators?" Defendant responded, "Im allowed to have that." When the trial court advised him that he was not entitled to a staff of investigators, defendant responded, "I have talked to several people that are fighting cases in the same dorm that Im in at this very moment, and I have that right for all access to all that stuff." The trial court repeated that defendant did not have that right, and defendant responded, "I do have a right." The following exchanged then occurred, "[THE COURT]: . . . [Y]ou can say it as much as you wish to; however, that does not make it true. [¶] . . . [¶] . . . Im advising you sir, that you have no special library privileges if you represent yourself. Do you understand that sir?" "[THE DEFENDANT]: I understand what youre saying, but I dont understand that I dont have the right to do it. I dont understand that. "[THE COURT]: Well . . . the law is what Im telling you about. The law says that you will have no special library privileges if you represent yourself. "[THE DEFENDANT]: I see guys every day going to the law library. "[THE COURT]: . . . Im not going to sit here and argue with you. Im advising you, and I want to know if you understand what Im advising you of; do you understand what Im saying? "[THE DEFENDANT]: No, I dont, because its wrong."
The trial court then ruled, "Well, if you dont understand what Im saying, . . . and Im speaking very clearly in English, then I cannot allow you to represent yourself. [¶] I will deny the request pursuant to Faretta at this time . . . . [¶] It does not appear to the Court that the defendant has the ability to represent himself or the mental capacity to make a knowing, intelligent waiver."
After the denial, defendant refused to respond to the trial court. Prendergast again asked for a section 1368 evaluation of defendants competency to stand trial. The People objected since he had already been found competent and suggested he was just being "obnoxious" with the court. The trial court ordered another evaluation.
On May 22, 2008, a different judge found defendant competent to stand trial based on the doctors report. Prendergast then advised the judge in open court that prior to the competency evaluation being ordered, the previous judge had denied defendants Faretta motion, believing defendant was not competent to represent himself. Prendergast was not sure if the issue needed to be revisited, and he was not sure what defendants position on self-representation was because defendant would not talk to him. Prendergast stated that he was ready for trial. Defendant made no comment in court.
At the next hearing on July 1, 2008, the People advised the trial court (yet another judge) that they opposed a requested continuance based on the fact that defense counsel was in trial on another matter. They suggested that defendant be allowed to proceed in propria persona. The trial court stated it was not going to revisit the Faretta motion, and defendant waived time.
On September 15, 2008, the case was called for trial. Defendant was now represented by Joe Torri from the public defenders office. In a discussion as to why defendant was being restrained, the People explained to the court that at a prior hearing where Torri had appeared on behalf of defendant, defendant became disruptive and asked to have Prendergast represent him. Torri also stated that defendant had called him a "punk-ass mother-fucker."
The trial court tried to get defendant to discuss his behavior during the prior proceedings, but he refused to discuss his behavior. He insisted he did not want Torri to represent him, but rather Prendergast.
The trial court then asked defendant, "All right. . . . [L]ets now get to the issue . . . of what attorney will be representing you. What . . . do you want right now in terms of an attorney? Do you want to represent yourself? Do you want Mr. Torri to represent you? Do you want someone other than Mr. Torri to represent you?" Defendant responded, "I would rather have someone else other than this young man right here, sir." Defendant indicated that he could not afford to hire a private attorney but did not want Torri. Defendant was willing to continue the case in order to get another attorney.
A Marsden hearing was then held. Defendant complained at the hearing that Torri had just been assigned to the case, had failed to visit him, and did not know anything about his case. Defendant was upset that Prendergast never advised him he was leaving the case. The court denied defendants Marsden motion. Defendant then insisted that trial proceed that day.
B. Analysis
"`. . . Faretta holds that the Sixth Amendment grants an accused personally the right to present a defense and thus to represent himself upon a timely and unequivocal request. [Citation.]" (People v. Halvorsen (2007) 42 Cal.4th 379, 433; see also Faretta v. California, supra, 422 U.S. at pp. 819-821.) A criminal defendant has a federal constitutional right to represent himself at trial only if he is mentally competent and "must make his request knowingly and intelligently." (People v. Stanley (2006) 39 Cal.4th 913, 931-932; see also Faretta, at pp. 835-836.)
"The right to self-representation . . . may be asserted by any defendant competent to stand trial — ones technical legal knowledge, as such, being irrelevant to the question whether he knowingly and voluntarily exercises the right. [Citations.]" (People v. Halvorsen, supra, 42 Cal.4th at p. 433.) The right to self-representation is unconditional if the request is made "within a reasonable time prior to the commencement of trial." (People v. Windham (1977) 19 Cal.3d 121, 128, fn. omitted.) The denial of the right to self-representation under Faretta is per se prejudicial. (People v. Joseph (1983) 34 Cal.3d 936, 939, 946-948.)
The People do not argue that the motion was untimely or equivocal. Regardless, that argument would not be successful, as defendant clearly stated he wanted to represent himself, and his motion was made five months prior to trial. Accordingly, the only issue was whether defendant was competent to knowingly and intelligently waive his right to counsel.
The standard for determining competency to stand trial has been found equivalent in California to the competency to make the determination to represent oneself. (People v. Blair (2005) 36 Cal.4th 686, 711; People v. Hightower (1996) 41 Cal.App.4th 1108, 1116.) Under the state standard for competency to stand trial, which essentially mirrors the federal standard, a defendant is mentally incompetent to stand trial 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." (§ 1367, subd. (a); see Dusky v. United States (1960) 362 U.S. 402, [80 S.Ct. 788, 4 L.Ed.2d 824] [legal competence standard is "`sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and a "`rational as well as factual understanding of the proceedings against him"].)
In Halvorsen, a capital case, the defendant made a motion for self-representation during the penalty phase of the trial, which the trial court denied. The California Supreme Court reversed the penalty phase verdict because "[t]he stated basis for the trial courts denial of defendants motion for self-representation — his supposed mental incapacity not amounting to incompetency to stand trial — . . . was invalid." (People v. Halvorsen, supra, 42 Cal.4th at p. 433.)
Halvorsen and the other cases cited predated Indiana v. Edwards (2008) ___ U.S. ___ [128 S.Ct. 2379, 171 L.Ed.2d 345]. In Edwards, the United States Supreme Court addressed whether states can insist upon representation by counsel for those who are competent to stand trial but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves. (Id. at p. 2381.) There, the court held, "[T]he Constitution permits States to insist upon representation by counsel for those competent enough to stand trial under Dusky but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves." (Id. at p. 2388.) In reaching this conclusion, the court differentiated the mental capacity necessary to stand trial and the capacity necessary to represent oneself.
The Edwards court concluded, "We consequently conclude that the Constitution permits judges to take a realistic account of the particular defendants mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally competent to do so." (Indiana v. Edwards, supra, 128 S.Ct. at pp. 2387-2388.) The court refused to set a strict standard for assessing severe mental illness that would render a defendant incapable of conducting the trial proceedings.
Our California Supreme Court has yet to address the effect of Edwards on Californias previous findings that once a defendant is found competent to stand trial and asks for self-representation in a timely and unequivocal manner, the trial court must allow the defendant to represent himself and has no discretion to deny it.
The People contend, based on Edwards, defendants behavior at the Faretta hearing, and defendants psychiatric history, that the trial court properly found defendant was not competent to waive his right to counsel. However, Edwards was decided (June 19, 2008) after the defendants Faretta motion was denied (April 17, 2008), so the trial court did not have its guidance in determining defendants competency to waive counsel. Moreover, Edwards has no practical effect here as the trial court never even made an attempt to determine that defendant was not mentally competent to waive his right to counsel. Defendant had already been found competent to stand trial. The exchange between the trial court and defendant showed that defendant disagreed with the trial courts explanation of his propria persona rights, not that he was suffering from a mental illness preventing him from competently waiving his right to counsel. As such, there was no reasonable grounds upon which defendants Faretta motion should have been denied. However, since we conclude that defendant abandoned his request to represent himself, reversal is not required.
Since a defendant is not entitled to be advised of the right to represent himself, "routinely the right of self-representation is impliedly and silently waived." (People v. Kenner (1990) 223 Cal.App.3d 56, 60.) Further, due to a defendants conduct, he may be found to have "ultimately waived or abandoned his asserted right of self-representation." (Stanley, supra, 39 Cal.4th at p. 929; see also People v. Dunkle (2005) 36 Cal.4th 861, 909.)
"[A]lthough in some cases a `personal dialogue between the court and the defendant may be advisable to determine whether there is a waiver, no such inquiry is necessary where all circumstances indicate that the defendant has abandoned his request to conduct his own defense. [Citation.]" (People v. Kenner, supra, 223 Cal.App.3d at p. 61.)
In Stanley, the court found that the trial court did not err by denying the defendants request for self-representation. However, it went on to conclude that the defendant had subsequently abandoned his desire to represent himself. It found, "In light of defendants subsequent acceptance of several appointed counsel to represent him without ever renewing his request for self-representation, we conclude he must further be found to have ultimately abandoned his desire to invoke his Faretta rights in these capital murder proceedings. [Citation.]" (People v. Stanley, supra, 39 Cal.4th at pp. 932-933.)
Here, after the denial of his Faretta motion, defendant appeared before a different trial judge, and Prendergast mentioned the Faretta motion and asked whether it should be revisited. Defendant remained silent. At another hearing, defendant apparently became disruptive and asked to have Prendergast appear for him. Thereafter, at a hearing in front of yet another trial judge, the judge asked defendant what attorney he wanted representing him, and also asked him if he wanted to represent himself. Defendant responded that he did not want Torri to represent him but asked for another attorney. He never stated that he sought to represent himself.
Although defendant was desirous of representing himself five months prior to trial, by the time of the trial, he clearly wanted to be represented by counsel. Defendant was silent about self-representation when asked by the trial court. As stated in Kenner, "[d]efendants who sincerely seek to represent themselves have a responsibility to speak up." (People v. Kenner, supra, 223 Cal.App.3d at p. 62.) If defendant continued to want to represent himself, he should have spoken up in front of the new judges in charge of his case and requested that he be granted the opportunity to represent himself. If defendant truly wanted to represent himself, he should have renewed his request. (See People v. Tena (2007) 156 Cal.App.4th 598, 610 [defendants failure to renew request when asked if he wanted to represent himself was evidence of abandonment of request].)
We find that defendant abandoned his request for self-representation, thereby precluding him from asserting a Sixth Amendment violation on appeal.
IV
SENTENCING
Defendant contends that the trial court erred by imposing a concurrent sentence on the assault with a deadly weapon charge instead of staying the sentence, since the conviction arose out of the same stabbing incident. He further asserts that, if this court does not stay the concurrent sentence on the assault charge, the abstract of judgment must be amended to show that the great bodily injury enhancement (§ 12022.7, subd. (a)) for the assault with a deadly weapon charge should be ordered to run concurrent, not consecutive, to the attempted murder.
At the time of sentencing, the trial court imposed a sentence of 25 years to life on the attempted murder, plus 3 years for the great bodily injury enhancement for that count, plus 2 years for the two prior prison term convictions. On the assault with a deadly weapon conviction, the trial court imposed a sentence of 25 years to life to run concurrent with the attempted murder sentence. However, the trial court ordered that enhancement for the great bodily injury enhancement — a three-year sentence — would run consecutive to the life term for the attempted murder. The trial court expressed on the record that all of the felonies arose from the same set of operative facts.
Section 654 provides that "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a).) The statute thus prohibits punishment for two crimes arising from a single, indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.)
The People concede that the attempted murder and assault with a deadly weapon convictions arose from the same set of operative facts. Accordingly, they concede that the trial court should have stayed the sentence and attendant great bodily injury enhancement under section 654. We agree and will order that the sentence be modified.
V
CUSTODY CREDITS
Defendant further contends that he is entitled to 58 days of presentence conduct credits under section 2933.1, and the abstract of judgment should be amended to reflect the additional credits.
In the probation report, the probation officer noted that defendant was not entitled to any section 2933.1 credits because "[a]ccording to People v. Bruner, 9C4th 1178 and In re Nickles, 231 C.A.3d 415, the strict causation rule applies. The defendant is on active parole and currently remains in custody on a parole hold. The defendant is not eligible for any PC 2933.1 credits, until the hold is lifted."
At the time for sentencing, the trial court noted, "The issue with credits is slightly more complicated. As counsel will note, the probation officers report in [the instant case] is, shall we say, less than clear. It indicates that he has earned 388 days of local time, but that he is not entitled to any statutory conduct credits because he was being held on a violation of parole hold at the time, and, therefore, he is limited to his actual local time credits. [¶] The total time credits of 446 days, the probation officer tells me, was a typographical error. That was intended to be 388 days." The minute order for sentencing and the abstract of judgment both show that defendant received 388 days of actual time credits and no presentence conduct credits.
"A defendant is not entitled to credit for presentence confinement unless he shows that the conduct which led to his conviction was the sole reason for his loss of liberty during the presentence period." (People v. Johnson (2007) 150 Cal.App.4th 1467, 1485.) In People v. Bruner (1995) 9 Cal.4th 1178, our Supreme Court held that "where a period of presentence custody stems from multiple, unrelated incidents of misconduct, such custody may not be credited against a subsequent formal term of incarceration if the prisoner has not shown that the conduct which underlies the term to be credited was also a `but for cause of the earlier restraint." (Id. at pp. 1193-1194.)
Here, it is unclear from the probation report the reason for the parole hold or if there even was a parole hold. At sentencing, defendant admitted a probation violation in Riverside County Superior court case No. RIF119300, and he was sentenced on the probation violation concurrent to the instant case. Since it is unclear whether the probation violation was the reason for defendants confinement and the People concede the issue, we will modify the judgment to award defendant 58 days of section 2933.1 presentence conduct credits, as it appears the reason for his presentence commitment was due to the current offenses.
VI
DISPOSITION
Defendants sentence is modified to reflect that execution of sentence on count 2, the assault with a deadly weapon and the great bodily injury enhancement, is stayed pursuant to section 654 pending completion of defendants sentence on his remaining convictions, such stay then to become permanent. In addition, defendant is entitled to presentence conduct credits pursuant to section 2933.1 in the amount of 58 days, giving him a total of 446 days of presentence credits. We direct the trial court to amend its October 24, 2008, sentencing order to reflect the above modifications of the judgment and to prepare an amended abstract of judgment to reflect the modifications to be forwarded to the Department of Corrections and Rehabilitation.
We concur:
McKINSTER, Acting P.J.
MILLER, J.