Opinion
B328626
07-12-2024
THE PEOPLE, Plaintiff and Respondent, v. JOSHUA ANTHONY TORRES, Defendant and Appellant.
Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General of California, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Ryan M. Smith, Deputy Attorney General, for Plaintiff and Respondent
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. LA097860, Thomas Rubinson, Judge. Affirmed.
Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General of California, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Ryan M. Smith, Deputy Attorney General, for Plaintiff and Respondent
FEUER, J.
Joshua Anthony Torres appeals from a judgment entered after a jury convicted her of assault with a deadly weapon. The jury also found true the special allegations Torres personally inflicted great bodily injury and suffered a prior serious or violent felony within the meaning of the three strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12).
At the time of trial Joshua Anthony Torres was legally and medically female. We use female pronouns to refer to her.
Further statutory references are to the Penal Code.
Torres contends the trial court committed structural error in violation of her Sixth and Fourteenth Amendment rights when it granted her request to represent herself despite her diagnoses of bipolar disorder and a learning disability. Torres also contends the court erred in failing to recognize its discretion to conduct an inquiry regarding Torres's mental competence to represent herself. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Evidence at Trial
1. The prosecution's case
In September 2022 Torres was living with her partner in an encampment located on an alley adjacent to private residences and a dance studio in Studio City. Matthew Gile lived in one of the homes next to the alley. Gile testified he had become concerned about Torres and her partner living there because they smoked drugs and defecated near Gile's garage. In late September Gile asked Torres's partner if they could move out of the area into a shelter offered by police. Torres's partner indicated a move was possible, but they would need two days to prepare.
On September 30, 2022 Gile checked whether Torres and her partner had moved to the shelter, but he found Torres lying down in the alley. Gile approached Torres and said he had spoken to her partner about going to a shelter. Torres stated that was not the plan and they would be staying in the alley because it was public land. Gile explained the land was private property belonging to the dance studio. Torres replied she always wanted to dance. She picked up her blanket and bag and walked out of sight. Gile assumed Torres was leaving.
At that point Torres's partner came down from the hillside and asked where Torres had gone. Gile stated he assumed Torres went to a shelter as they had discussed. Torres's partner screamed in response, "'She's going to fucking kill you.'" Suddenly, Gile felt incredible pain in his right shoulder blade, back, neck, and head. He thought he had been shot, and he collapsed to the ground. Gile then realized that a four-inch plastic pipe filled with steel, which he estimated weighed more than 25 pounds, had landed to his side. He looked up and saw Torres on the dance studio roof in the direction from which the object came.
While Gile was still on his back, Torres threw a metal box weighing five or 10 pounds from the rooftop, landing a few inches to the left of his head. Torres's partner picked up a railroad tie with spikes, and Torres and her partner screamed that they were going to kill Gile. A frantic and fearful Gile "scrambled" away and ran up the hill to call the police.
Gile was taken to the hospital by paramedics. Gile suffered a shattered shoulder blade, a broken rib, and a collapsed lung. A hole was cut in his chest, and a tube was placed inside his chest to reinflate his collapsed lung. Two days later, Gile was released from the hospital still intubated, with a broken rib.
A few days later police arrested Torres less than a mile from the scene of the incident.
2. The defense case
Torres did not testify on her own behalf but presented the testimony of two police officers. Los Angeles Police Officer Luke Burke responded to Gile's emergency call and accompanied Gile to the hospital. Gile complained of pain to his back and scapula area, but he did not tell Burke he had a rib injury. Burke wrote a narrative of the incident that was included in the arrest report without mentioning that Gile had fractured ribs.
Los Angeles Police Detective Daniel Fournier investigated the scene but did not find a weapon. He prepared an arrest report in which he included information written by other officers regarding Gile's three fractured ribs. Fournier did not have firsthand knowledge of Gile's fractured ribs and was not sure how he obtained the information on the fractured ribs.
B. The Verdict and Sentencing
The jury found Torres guilty of assault with a deadly weapon (§ 245, subd. (a)(1)) and found true the allegations Torres personally inflicted great bodily injury (§ 12022.7, subd. (a)) and she suffered a prior serious or violent felony within the meaning of the three strikes law.
The trial court sentenced Torres to an aggregate term of nine years in state prison: the middle term of three years for assault with a deadly weapon, doubled under the three strikes law, plus three years for the personal infliction of great bodily injury enhancement.
DISCUSSION \ A. Governing Law and Standard of Review
"'A criminal defendant has a right, under the Sixth Amendment to the federal Constitution, to conduct his own defense, provided that he knowingly and intelligently waives his Sixth Amendment right to the assistance of counsel.'" (People v. Burgener (2009) 46 Cal.4th 231, 240-241 (Burgener); see Faretta v. California (1975) 422 U.S. 806, 835-836 (Faretta).) In People v. Johnson (2012) 53 Cal.4th 519, 523, 528 (Johnson) the Supreme Court held that California courts have the discretion to deny self-representation to "gray-area defendants"-those who are determined competent to stand trial but "lack the mental health or capacity to represent themselves at trial." "The requirements for a valid waiver of the right to counsel are (1) a determination that the accused is competent to waive the right, i.e., he or she has the mental capacity to understand the nature and object of the proceedings against him or her; and (2) a finding that the waiver is knowing and voluntary, i.e., the accused understands the significance and consequences of the decisions and makes it without coercion." (People v. Koontz (2002) 27 Cal.4th 1041, 1069-1070; see People v. Mickel (2016) 2 Cal.5th 181, 205 (Mickel) ["A valid waiver requires that the defendant possess the mental capacity to comprehend the nature and object of the proceedings against him or her, and that the defendant waive the right knowingly and voluntarily."].)
"'A defendant seeking to represent himself "should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open.'"'" (Burgener, supra, 46 Cal.4th at p. 241.) "'"No particular form of words is required in admonishing a defendant who seeks to waive counsel and elect self-representation."'" (Ibid.)
"The scope of a trial court's inquiry into a defendant's ability to validly waive counsel 'depends on the particular facts and circumstances of the case.'" (People v. Waldon (2023) 14 Cal.5th 288, 308; see Burgener, supra, 46 Cal.4th at p. 242). 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; accord, People v. Shiga (2016) 6 Cal.App.5th 22, 39.) "When there is reason to doubt a defendant's mental capacity to waive counsel, the court's determination should be made after a careful inquiry into the defendant's competence, including consideration of psychiatric evidence." (Waldon, at pp. 307-308; accord, People v. Wycoff (2021) 12 Cal.5th 58, 90.) "[T]he appropriate standard is '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.'" (Mickel, supra, 2 Cal.5th at p. 207; accord, Johnson, at p. 530.) The "basic tasks" necessary for a defense include "organization of defense, making motions, arguing points of law, participating in voir dire, questioning witnesses, and addressing the court and jury." (Indiana v. Edwards (2008) 554 U.S. 164, 175-176.)
A defendant reserves his right to represent himself, "although he may conduct his own defense ultimately to his own detriment." (Faretta, supra, 422 U.S. at p. 834; accord, Mickel, supra, 2 Cal.5th at p. 206 ["[w]e have . . . rejected claims that the fact or likelihood that an unskilled, self-represented defendant will perform poorly in conducting his or her own defense must defeat the Faretta right"]; Johnson, supra, 53 Cal.4th at p. 531 ["[a] court may not deny self-representation merely because it believes the matter could be tried more efficiently, or even more fairly, with attorneys on both sides"]; People v. Butler (2009) 47 Cal.4th 814, 824-825, 828 ["[d]efendants untrained in the law may well provide themselves with inept representation"].)
On appeal, "[w]e review a Faretta waiver de novo, and examine the entire record to determine the validity of a defendant's waiver of the right to counsel." (Mickel, supra, 2 Cal.5th at p. 212; accord, Burgener, supra, 46 Cal.4th at p. 241.) "The record as a whole must establish that the defendant understood 'the dangers and disadvantages' of waiving the right to counsel, including the risks and intricacies of the case." (Mickel, at p. 212; see Burgener, at p. 241.) With respect to the defendant's competence to waive the right to counsel, "[t]he trial court's determination regarding a defendant's competence must be upheld if supported by substantial evidence." (Johnson, supra, 53 Cal.4th at p. 531.) We defer to the trial court's determination and review it for an abuse of discretion. (Id. at pp. 531-532 [the trial judge who presided over the proceedings and trial "'will often prove best able to make more fine-tuned mental capacity decisions, tailored to the individualized circumstances of a particular defendant'"].)
B. The Trial Court Did Not Err or Abuse Its Discretion in Allowing Torres To Represent Herself
1. Torres's request to represent herself
On December 12, 2022 Torres filled out, initialed, and dated an advisement and waiver of right to counsel form. At a pretrial hearing on January 4, 2023, Torres reiterated her request to represent herself.
The trial court engaged Torres in a lengthy colloquy regarding her request, first asking Torres if she had read and understood all the terms on the form. Torres confirmed she had. The court also inquired into Torres's native language, and she stated it was English. The court then asked whether Torres had ever been examined or treated for any mental illness. Torres responded, "I have a learning disability, but I also am bipolar since 1992. So I have a 1992 diagnosis as a child. And I've been off my medication for about a year. . . . I was in special ed classes when I was younger." Torres added that she did not have a high school diploma although she almost "got all the way through" the online classes she needed to graduate, but she did not complete the program because she ran out of money. The court then confirmed that Torres had personally initialed and signed the waiver form.
When asked if she knew what she was charged with, Torres answered "Yes, it's 245GBI. Assault with a deadly weapon likely to cause great bodily injury." The trial court asked Torres whether she knew the elements of the crime. Torres responded she did not know the elements, "[a]nd my attorney has not told me those things. And that was one of the reasons why I at first wanted to see if I can get another attorney . . . ." The court explained Torres could make a "Marsden motion" to replace her attorney, instead of representing herself, to which Torres replied she had previously thought about replacing her attorney, but decided to represent herself.
People v. Marsden (1970) 2 Cal.3d 118.
Torres also stated she had read the Penal Code and had requested discovery from her public defender without a response. Her attorney did not tell her what her defense would be and they "we're not communicating on that level." The trial court continued to try to dissuade Torres from representing herself, again suggesting she move to replace her counsel. At one point the court inquired, "You are not interested in doing a Marsden? You'd rather just go with the Faretta?" Torres responded, "I think so, yeah. I do want to go Faretta because I need to learn the specifics about this case because . . . something is really wrong with what happened that day, and I'm not sure what it is. So I have to know what happened, and I need the discovery to see what happened."
The trial court admonished Torres that "representing yourself is almost always a bad decision," because she would be overmatched in the courtroom and did not have legal training. The court then asked the prosecutor how long he had been prosecuting cases and how many jury trials he had done. The prosecutor stated he had 26 years of experience and had conducted 100 jury trials, and Torres responded that she understood and was "well aware of the disadvantage." The court also explained the possible consequences of representing herself given that Torres was facing up to 11 years in prison.
After Torres complained again that she and her attorney had a communication problem, the trial court stated it would take a break during which Torres and her counsel could attempt to work out their differences. The court advised Torres, "I would really like to see you get the best representation that you could possibly have. The stakes are too high. You have the right to be pro per. I'll let you do that, and we can go through the rest of this if you insist on it. It is your right. But you are making a big mistake . . . . I definitely think you will be better served having a professional attorney [who is] experienced and good."
After Torres spoke privately to defense counsel, she continued to insist on representing herself. The trial court asked two more times whether Torres was positive she wanted to represent herself and reminded her that, because she was in custody, she would have limited access to the telephone and law library. The court also explained Torres would not get any special help and would be expected to know how to do everything herself. Torres replied, "I understand. . . . I'm aware what the- I'm aware of those rules, yes." The court informed Torres of the risks that could mean the difference between an acquittal and conviction and asked if she understood that clearly. Torres replied, "I am aware of the risk of this case." Finally, the court asked Torres, "Are you sure you want to do this?" Torres answered, "I'm very sure."
The trial court found Torres's waiver of her constitutional right to counsel was knowing and intelligent. Further, the court found Torres "does have the cognizant and communicative skills necessary to represent herself, and factually understand the proceedings against her, and has a relevant understanding and rational (sic) [ability] to respond to [the] charges, and can coherently communicate that response to the trier of facts." The court granted the motion.
2. Torres made a knowing, intelligent, and voluntary waiver
Torres contends the trial court erred by granting her request to represent herself because her learning disability and bipolar disorder prevented her from making a knowing, intelligent, and voluntary waiver. There was no error or abuse discretion.
As discussed, the trial court repeatedly warned Torres of the risks of representing herself and asked her numerous times whether she was positive she wanted to undertake those risks. Each time Torres clearly and unequivocally expressed her strong desire to represent herself. The court also repeatedly advised Torres that she could instead take the less drastic measure of moving to replace her counsel. Torres appeared to understand the option and rejected it multiple times. Even after having time to consult privately with her attorney, Torres maintained her desire to represent herself. There is nothing in the record to suggest the waiver was not knowing, intelligent, and voluntary. (See People v. Taylor (2009) 47 Cal.4th 850, 879 [waiver was valid despite defendant's history of mental health issues where the court explained the risks and disadvantages and defendant repeatedly and clearly "chose self-representation with his eyes open"]; People v. Miranda (2015) 236 Cal.App.4th 978, 982, 986, 989 [trial court did not err in allowing defendant to represent himself despite testimony at trial that he was bipolar and schizophrenic and defendant described himself as mentally "'slow'" where defendant's statements to court "were clear and direct and showed a strong desire to represent himself," and defendant did a reasonable job at trial of defending himself]; see also People v. Orosco (2022) 82 Cal.App.5th 348, 360, 363-364 [trial court erred in denying Faretta motion despite defendant's "momentary misunderstanding" regarding the waiver form because there was no evidence of mental illness and "his 'answers to the form were also consistent with a voluntary and intelligent waiver'"].)
Torres's argument that her unspecified learning disorder and bipolar disorder prevented a valid waiver is unavailing.There is no indication in the record Torres suffered from a mental illness severe enough to prevent her from carrying out "the basic tasks needed to present [a] defense." (Mickel, supra, 2 Cal.5th at p. 207.) To the contrary, Torres understood the difference between a Marsden motion to replace counsel and a Faretta motion to represent herself, she conducted herself appropriately throughout her colloquy with the trial court, and she expressed her understanding that she was at a disadvantage and needed to learn more about the law and the case. Torres has not pointed to anything she did during the trial that shows she did not have the mental capacity to represent herself. Indeed, during the trial Torres presented an opening statement in which she pointed out inconsistent testimony she planned to elicit, objected to questions asked by the prosecutor, rephrased questions after the court directed her to do so, presented witnesses to testify about perceived discrepancies in the police reports, and made a coherent closing argument.
Torres did not specify the type of bipolar disorder with which she was diagnosed or the symptoms she experienced. The most recent version of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) designates two types of bipolar disorder with several potential diagnostic criteria, including "mood disturbance and increased energy or activity" and occurrence of hypomanic (extreme changes in mood, energy, or activity levels) or major depressive episodes. (American Psychiatric Assn., Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) pp. 123-139.) Although Torres on appeal highlights the impact bipolar disorder could have on an individual's ability to represent herself based on the descriptions of the illness on a Mayo Clinic website, there is nothing in the record that shows Torres was continuing to suffer from bipolar disorder or that she was currently experiencing any symptoms from a mental illness.
Nor has Torres demonstrated the trial court should have inquired further into her mental competency. She argues it was "obvious" she suffered from mental illness, pointing to three references in the record to mental illness. An October 26, 2022 pre-conviction probation report contains a statement by Los Angeles Police Detective Christopher Allen that "the defendant could suffer from a mental illness." In addition, the jury during deliberations sent a note to the court stating, "We want to know, has [defendant] Joshua Torres ever requested to receive or requested to get any mental health consultation between 2019 and today?" Torres also notes the trial court commented during sentencing, "I don't understand why you did what you did," referring to Torres's rush to trial without obtaining additional discovery.
Contrary to Torres's contention, it is not surprising that a police officer and jurors would wonder whether a person in a homeless encampment had a mental illness where the person threw two heavy objects from a roof on a local resident with no provocation (other than the resident's inquiry whether the person planned to move to a shelter). It would be sheer speculation to conclude from the detective's general comment or the jurors' question that Torres was at the time of trial suffering from a mental illness that impaired her ability to represent herself at trial. Likewise, the court's surprise that Torres, upon being granted her right to represent herself, would demand she be given a speedy trial without waiting to obtain discovery does not show she had a mental illness that prevented her from representing herself at trial.
Moreover, mental illness alone does not render a person incapable of "rationally perceiving his [or her] circumstances, and appreciating the risks and consequences of self-representation, and appropriately formulating and presenting a defense." (Waldon, supra, 12 Cal.5th at pp. 294-295.) In light of Torres's rational and deliberate demeanor throughout the proceedings, Torres's mental health diagnosis did not without more trigger the trial court's duty to inquire further.
Nor does the record reflect the trial court failed to recognize its discretion to conduct a further inquiry into Torres's mental competence. Indeed, the court specifically inquired whether Torres had been treated for a mental illness. People v. Shiga, supra, 6 Cal.App.5th at pp. 31, 44, relied on by Torres, is distinguishable. In Shiga, we held the trial court erred in failing to inquire further into the defendant's mental competence to represent himself where the defendant was housed in a mental ward prior to trial, one expert found before trial the defendant was not competent to stand trial (although the court concluded based on a second expert report that he was), and the defendant was diagnosed with schizophrenia and suffered from delusions. (Id. at pp. 30-31.) In reversing the judgment, we reasoned, "Because there was sufficient evidence then known to the trial judge to, at least, foster a doubt regarding defendant's mental competence to stand trial at that time, the trial court's failure to recognize it was within its discretion to make further inquiry regarding whether such evidence was substantial and/or warranted ordering a second competency hearing was error." (Id. at p. 44.) Here, as discussed, given Torres's cogent responses during her colloquy with the court, there was not sufficient evidence to foster a doubt as to Torres's competence to trigger a further inquiry or evaluation.
DISPOSITION
The judgment is affirmed.
We concur: MARTINEZ, P. J. SEGAL, J.