Opinion
D073892
10-30-2019
THE PEOPLE, Plaintiff and Respondent, v. DWAINE MAURICE THOMPSON, Defendant and Appellant.
Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Michael P. Pulos, Collette C. Cavalier and Joseph C. Anagnos, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD274815) APPEAL from a judgment of the Superior Court of San Diego County, Esteban Hernandez, Judge. Convictions affirmed; sentence vacated; and remanded with directions. Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Michael P. Pulos, Collette C. Cavalier and Joseph C. Anagnos, Deputy Attorneys General for Plaintiff and Respondent.
A jury convicted Dwaine Maurice Thompson of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); counts 1 and 2) and making a criminal threat (§ 422; count 3). It found true allegations that Thompson personally used a knife, a dangerous and deadly weapon (§ 1192.7, subd. (c)(3)) as to counts 1 and 2, and also as to count 3 (§ 12022, subd. (b)(1)).
Undesignated statutory references are to the Penal Code.
In bifurcated proceedings, the jury found true that Thompson had suffered a prior serious felony conviction, specifically an assault with a deadly weapon (§§ 667, subd. (a)(1), 668, & 1192.7, subd. (c)) and a strike prior conviction (§§ 667, subds. (b)-(i), 668, 1170.12).
The court sentenced Thompson to a total of 15 years in prison as follows: four years on count 1, one year on count 2, both doubled because of the strike prior conviction, plus five years on the serious felony prior conviction.
Thompson contends the court committed reversible error by failing to revoke his status as a self-represented litigant after he assertedly demonstrated he was not competent to stand trial. He further contends that in light of recently-enacted Senate Bill No. 1393, we should remand for the trial court to exercise its discretion on whether to strike the prior serious felony enhancement under sections 667, subdivision (a) and 1385, subdivision (b). The People concede the latter point, and we agree that a remand is necessary for resentencing. We otherwise affirm the judgment.
DISCUSSION
We omit the facts of the underlying offenses because they are not relevant for our disposition of this appeal. --------
I. Thompson's Status as a Self-Represented Litigant
Thompson does not challenge the court's initial decision to grant his right to represent himself under Faretta v. California (1975) 422 U.S. 806 (Faretta). Rather, he contends the court prejudicially failed to revoke that right when he later showed he was not competent to represent himself.
"Defendants in criminal cases have a federal constitutional right to represent themselves. [Citation.] In Indiana v. Edwards (2008) 554 U.S. 164[, 174] . . . (Edwards), however, the United States Supreme Court held that states may, but need not, deny self-representation to defendants who, although competent to stand trial, lack the mental health or capacity to represent themselves at trial—persons the court referred to as 'gray-area defendants.' " (People v. Johnson (2012) 53 Cal.4th 519, 523 (Johnson).) The Edwards rule applies in California. (Johnson, at p. 523.) Thus, California courts have the discretion to deny self-representation to gray-area defendants. (Id. at p. 528.)
"A trial court need not routinely inquire into the mental competence of a defendant seeking self-representation. It needs to do so only if it is considering denying self-representation due to doubts about the defendant's mental competence." (Johnson, supra, 53 Cal.4th at p. 530.) "[T]he standard that trial courts considering exercising their discretion to deny self-representation should apply is simply whether the defendant suffers from a severe mental illness to the point where he or she cannot carry out the basic tasks needed to present the defense without the help of counsel." (Ibid.)
"Because the Edwards rule is permissive, not mandatory, . . . Edwards 'does not support a claim of federal constitutional error in a case like the present one, in which defendant's request to represent himself was granted.' " (Johnson, supra, 53 Cal.4th at p. 527, quoting People v. Taylor (2009) 47 Cal.4th 850, 878 (Taylor).)
"[T]he right of self-representation is not absolute." (Edwards, supra, 554 U.S. at p. 171.) A trial judge may terminate self-representation "[w]henever 'deliberate dilatory or obstructive behavior' threatens to subvert 'the core concept of a trial' [citation] or to compromise the court's ability to conduct a fair trial." (People v. Carson (2005) 35 Cal.4th 1, 10. (Carson).) "Each case must be evaluated in its own context, on its own facts, in light of" relevant factors. (Ibid.) " '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.' " (People v. Danielson (1992) 3 Cal.4th 691, 727.) "As with other determinations regarding self-representation, we must defer largely to the trial court's discretion." (Johnson, supra, 53 Cal.4th at p. 531.)
Thompson contends the court should have terminated his self-representation because he tried to disqualify the judge in an untimely fashion, and he was disruptive in front of the jury. For example, he repeatedly requested a chair with wheels, and that the bailiff remove his handcuffs. Thompson adds: "In front of the jury [Thompson] accused either witnesses or opposing counsel [of] telling 'right out lies,' [sic] or accused them of being a liar, at least 17 times." Thompson argues that he "presented speaking objections disputing the evidence presented." Thompson asserts that "[d]uring cross[-]examination, he testified, badgered the witness, or was argumentative repeatedly."
"A trial court may revoke self-representation if the defendant engages in disruptive or obstructionist behavior. [Citations.] But a trial court is not compelled to revoke self-representation in such cases. 'The trial court possesses much discretion when it comes to terminating a defendant's right to self-representation and the exercise of that discretion "will not be disturbed in the absence of a strong showing of clear abuse." [Citations.]' [Citation.] The fact a defendant does a bad job, or even fails to contest the case, is not a basis to revoke self-representation." (People v. Weber (2013) 217 Cal.App.4th 1041, 1060.)
Here, we defer to the court's observations of Thompson's conduct during trial. Although Thompson had several outbursts during the trial in which he complained about the proceedings, he responded to the trial court's admonishments. The trial court could reasonably conclude Thompson was not out of control and his behavior did not impair the orderly progress of the trial. Thompson at times attempted to pursue irrelevant lines of questioning, and he accused witnesses of lying during examinations, but he also asked many pertinent questions and legitimately challenged the People's case. Specifically, he managed to get prior crimes on his rap sheet excluded from a trial exhibit, he clarified that the court would instruct the jury with CALCRIM No. 358 regarding his out-of-court statements, and he informed the court he would not argue self-defense because he never committed the charged crimes. The record offers no basis for this court to conclude Thompson's behavior adversely impacted the core integrity of the trial (Carson, supra, 35 Cal.4th at p. 9), such that the court was required to terminate his self-representation.
Thompson suggests the trial court should have been more aware of the potential need to terminate his self-representation because of questions regarding his competency. However, the record does not indicate Thompson engaged in behavior suggesting he suffered from a mental illness so severe that he was unable to carry out the basic tasks needed to present a defense without the help of counsel. (Johnson, supra, 53 Cal.4th at p. 530.) As noted, Thompson was at times frustrated with the criminal process and he displayed an unfamiliarity with the rules of evidence. Yet, he clearly understood the process and, while he expressed his displeasure and frustration, he was generally able to actively participate in the trial and carry out his defense. (See People v. Ramos (2004) 34 Cal.4th 494, 508 [to be deemed not competent defendant "must exhibit more than bizarre, paranoid behavior, strange words, or a preexisting psychiatric condition that has little bearing on the question of whether the defendant can assist his defense counsel"].)
In sum, although Thompson engaged in some disruptive or improper behavior, our review of the record does not reveal that his behavior was so detrimental to the integrity of the trial that the court abused its discretion by not sua sponte terminating his self-representation.
II. Senate Bill No. 1393
Thompson requests we remand this matter to allow the trial court to exercise discretion newly granted it by Senate Bill No. 1393 to strike his serious felony prior conviction used to support the five-year enhancement under section 667, subdivision (a)(1). Before Senate Bill No.1393's adoption, the law prohibited courts from striking felony priors used for purposes of the section 667 enhancement. (Former § 1385, subd. (b).) However, effective January 1, 2019, Senate Bill No. 1393 removed that prohibition. Thompson contends Senate Bill No. 1393 is retroactive and applies to all cases not yet final as of its effective date, such as this case.
Absent evidence to the contrary, statutory amendments that reduce the punishment for a crime or vest in trial courts the discretion to impose a lesser penalty, such as Senate Bill No. 1393, apply to all defendants whose judgments are not final as of the amendment's effective date. (In re Estrada (1965) 63 Cal.2d 740, 742; People v. Garcia (2018) 28 Cal.App.5th 961, 972.) When it enacted Senate Bill No. 1393, the Legislature did not indicate it intended the legislation to apply prospectively only. (Garcia, at p. 972.) The act thus applies retroactively to this issue.
We are required to remand in instances such as this "unless the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken [the] . . . enhancement" even if it had such discretion. (People v. McDaniels (2018) 22 Cal.App.5th 420, 425.) The record here contains no such "clear" indication. We thus remand for the court to consider striking the serious felony prior conviction that supports the enhancement imposed under section 667, subdivision (a)(1).
DISPOSITION
The judgment of conviction is affirmed. The matter is remanded for the court to conduct a new sentencing hearing to consider whether to exercise its discretion under amended sections 667, subdivision (a), and 1385, subdivision (b), to dismiss the punishment for Dwaine M. Thompson's prior serious felony conviction.
O'ROURKE, Acting P. J. WE CONCUR: AARON, J. DATO, J.