Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Tulare County, Super. Ct. Nos. VCF173312 & VCF167092, Ronn M. Couillard, Judge.
Richard J. Krech, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, David Andrew Eldridge and Laura Wetzel Simpton, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DAWSON, J.
Following a jury trial, Michael Lloyd Wynia (appellant) was convicted of (1) two felonies: assaulting a peace officer (Pen. Code, § 245, subd. (c)), with an enhancement of great bodily injury (§ 12022.7, subd. (a)), and resisting arrest (§ 69); and (2) four misdemeanors: two counts of damaging a prison (§ 4600, subd. (a)); battery causing injury to a peace officer (§ 243, subd. (c)(2); and resisting arrest (§ 148, subd. (a)(1)). The trial court sentenced appellant to the midterm of four years on the assault conviction, with a three-year enhancement, plus a consecutive eight months on the felony resisting arrest conviction. He was also sentenced to 30 days with 30 days credit for each misdemeanor.
All further statutory references are to the Penal Code unless otherwise stated.
On appeal, appellant contends the trial court erred when it failed to follow the requirements of section 4011.6, when it failed to hold a competency hearing pursuant to section 1368, and when it granted his Faretta motion. He also contends there was insufficient evidence to sustain his assault conviction. We disagree and affirm.
Faretta v. California (1975) 422 U.S. 806.
FACTS
While in custody for various charges at the Tulare County jail, appellant engaged in three separate incidents of assaultive behavior toward the staff and property.
July 15, 2006, Incident
At approximately 2:00 in the afternoon on July 15, 2006, Deputy Ricardo Mendoza, on duty at the jail, heard squeaking noises coming from appellant’s cell. When Deputy Mendoza asked appellant if he was “messing with his seat,” appellant replied “no.” Deputy Mendoza then heard loud banging noises coming from appellant’s cell.
Deputy Mendoza and his backup checked on appellant and confirmed that appellant had broken off the seat in his cell. Appellant complied when Deputy Mendoza asked him to kneel down to be handcuffed. The broken seat cost approximately $460 to repair.
July 24, 2006, Incident
On July 24, 2006, at approximately 10:00 in the morning, Deputy Mendoza noticed water on the floor of the dayroom. Deputy Mendoza traced the source of the water to appellant’s cell, which appellant had flooded by continuously flushing the toilet. Appellant also used toilet paper to cover the window to his cell and he placed his mattress in front of the cell door.
Deputy Mendoza asked appellant why he was flooding his cell, and appellant said he “wanted to go up front.” Deputy Mendoza entered appellant’s cell and, after a brief struggle, handcuffed him.
As Deputy Mendoza and appellant walked to the multipurpose room, appellant became “non-compliant” and “kept turning” away. Deputy Mendoza placed appellant in “an arm bar lock,” but appellant reacted by resisting “even more.” Appellant then slipped on the wet floor, and Deputy Mendoza fell with him. While on the ground, appellant kicked Deputy Mendoza’s legs. Deputy Mendoza managed to restrain appellant and waited for additional backup to arrive.
November 3, 2006, Incident
Appellant was confined to a cell with a steel bunk, sink, and toilet, with a steel door that had a six-inch square Plexiglas window and a six- by twelve-inch rectangular “pass door” used to deliver food and medication. At approximately 3:00 p.m. on November 3, 2006, appellant kicked and banged on his cell door and threatened to harm or possibly kill himself.
Roz Charles, the on-site mental health worker, spoke to appellant about his threats. Charles then advised the deputy that appellant needed to be transferred to a “safety cell,” a windowless cell with padded walls, for his own protection. But when the deputy and his backup approached appellant’s cell to transfer him, appellant refused to comply with their directives.
Lieutenant Keith Douglass arrived to assist and found appellant yelling and swearing at the other deputies. Appellant was standing toward the back of his cell and appeared agitated and hostile. He had ripped open his mattress and shoved the mattress material into his jumpsuit, which would render a Taser charge ineffective. He had flooded his cell “with fecal matter and things of that nature .…”
Lieutenant Douglass asked appellant, “‘Michael, what can I do to help you? What can we do to stop this?’” Appellant responded that he “‘didn’t give a shit, fuck you, you lied to me.’” When ordered to back up to the “pass door” so that deputies could cuff his hands, appellant said, “‘Fuck you.’” Douglass determined that he and the other deputies would have to enter appellant’s cell and physically restrain him with a deputy “assigned to each limb .…”
When the officer opened appellant’s cell door, appellant charged through the opening with a blanket he attempted to throw over Lieutenant Douglass. He also tried to punch Douglass in the head with a closed fist. Douglass grabbed appellant’s arm, preventing him from making contact. The officers brought appellant, along with Lieutenant Douglass, “to the ground” where appellant continued to struggle, kick, flail, and curse at the deputies. Eventually, they were able to handcuff him. Douglass was certain that, had appellant been able to free one of his limbs, he would have struck one of the deputies.
While Lieutenant Douglass was on the ground struggling to restrain appellant, his left leg slipped beneath an adjoining cell gate. He did not notice any pain until he stood up and put weight on his leg. At that point, the pain was intense. A subsequent X-ray revealed that Douglass’s left fibula was broken in two places. At the time of trial, Douglass still walked with a limp, still had “a great deal of pain,” and continued to undergo physical therapy.
DISCUSSION
1. Was appellant’s mental examination properly conducted in accordance with section 4011.6 and his right to due process?
Appellant contends that he was forced to stand trial while incompetent, in violation of his due process rights, because the trial court did not comply with the requirements of section 4011.6. Specifically, appellant argues that he was not transferred to a treatment facility and he was not observed for the statutory 72 hours, both of which he contends are violations of section 4011.6. We disagree.
Procedural background
The procedural record shows the following. As a result of appellant’s behavior on November 3, 2006, he was charged with assaulting a peace officer and resisting arrest. Appellant was not present at his scheduled arraignment on November 7, 2006, but remained, as explained by appointed counsel, in a protective cell. Counsel then added:
“My suggestion is [appellant] be referred pursuant to [section] 4011.6 for seventy-two hour exam and mental health evaluation. Mental health has been seeing [appellant]. They were first responders in the new case. Mental health has the ability to keep him in lock-down, if that is what is necessary, if it’s too dangerous to take him to the center over at Cypress. I believe they have the authority to have him retained at the jail as well while he’s getting evaluated for seventy-two hours. [¶] That would essentially trigger the provisions of the Welfare & Institutions Code under [section] 5150. Ultimately what happens with [appellant] is going to be a function of how they evaluate his current situation. I don’t have too many options about what to do with [appellant].”
The trial court determined, based on counsel’s representations and the probation report for the previous case, that it was “unsafe to transport [appellant] because he’s creating problems .…” The court concluded, with counsel’s agreement, that it would issue the order under section 4011.6, but would allow the mental health “director” to decide whether to transport appellant to the Cypress facility or to conduct the examination at the county jail.
On November 13, 2006, the next hearing for the previous case, the court stated that it had received a letter concerning appellant from “Health & Human Services” which indicated “[appellant’s] not their type of person, he does not meet the criteria for W&I 5150.” The letter, written by Licensed Social Worker Kathy Benjamin, stated:
“I evaluated [appellant] on 11-7-06, and discussed the case with Dr. Herbert Cruz, Mental Health Medical Director. [Appellant] does not meet criteria for W&I 5150. He firmly denied suicidal ideation, homicidal ideation and is not gravely disabled. He has recently threatened and harmed others, but that behavior does not appear to be due to a mental illness, nor is it a criteria for a W&I 5150 commitment while in jail.”
The court determined that, as a result of the evaluation, it intended to arraign appellant on the new case as “soon as he gets out of the safety cell .…”
Appellant appeared in court the following day for arraignment on the charges stemming from the November 3, 2006, incident. When the trial court referred to the letter from Benjamin, appellant personally interjected and asked whether he could “speak on that.” He then stated:
“What happened was I was in the safety cell. Kathy came and talked to me. I wanted to get out of the safety cell so I lied to her so I could try to attack an officer because I was pissed off because they’ve been treating me like shit and all that. So I lied to her about everything. That’s why I’m back in the safety cell. I keep on getting in fights with deputies and stuff like that. I can’t go to regular cell because I always get involved with somebody else.”
Appellant denied having “any ideas about hurting [himself].”
The court noted that the letter stated that appellant did “not meet the criteria for 5150.”
Thereafter appellant pled not guilty to the complaint and his criminal case continued. On November 30, 2006, appellant dismissed counsel under Faretta; on December 7, 2006, he obtained a limited reappointment of counsel to explain a plea offer; on January 12, 2007, he obtained a general reappointment of counsel for his upcoming trial; and on January 30, 2007, he again dismissed counsel under Faretta after his Marsden motion was denied. Consequently, appellant represented himself at trial.
People v. Marsden (1970) 2 Cal.3d 118.
Applicable Principles of Statutory Construction
The issue presented requires us to construe the requirements of section 4011.6. “‘“Our role in construing a statute is to ascertain the Legislature’s intent so as to effectuate the purpose of the law. [Citation.]”’” (People v. Canty (2004) 32 Cal.4th 1266, 1276.)
We first examine the language of the statute enacted, giving the words their usual, ordinary meaning. (People v. Canty, supra, 32 Cal.4th at p. 1276.) “If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature (in the case of a statute) .…” (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.) But the “plain meaning” rule does not prohibit a court from determining whether the literal meaning of a measure comports with its purpose or whether such a construction of one provision is consistent with other provisions of the statute. (Ibid.)
The meaning of a statute may not be determined from a single word or sentence; the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible. (Lungren v. Deukmejian, supra, 45 Cal.3d at p. 735 .)
“Literal construction should not prevail if it is contrary to the legislative intent apparent in the statute. The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act. [Citations.] An interpretation that renders related provisions nugatory must be avoided [citation]; each sentence must be read not in isolation but in the light of the statutory scheme [citation]; and if a statute is amenable to two alternative interpretations, the one that leads to the more reasonable result will be followed [citation].” (Ibid.)
If a statute is ambiguous, then, in addition to the statutory language, we may consider the Legislature’s intent, and may examine the history and background of the statute, in order to ascertain the most reasonable interpretation. (People v. Canty, supra, 32 Cal.4th at p. 1277.)
Analysis of statutory language
Section 4011.6, the statute at issue here, provides, in pertinent part:
“In any case in which it appears to … any judge of a court in the county in which the jail … is located, that a person in custody in that jail … may be mentally disordered, he or she may cause the prisoner to be taken to a facility for 72-hour treatment and evaluation pursuant to Section 5150 of the Welfare and Institutions Code .…”
In order to address appellant’s claim that section 4011.6 was not adequately followed, we first address Welfare and Institutions Code section 5150. The Lanterman-Petris-Short Act, codified at Welfare and Institutions Code section 5150 et seq., provides the standards for short-term involuntary commitment of “any person.” (Ibid.) Because an involuntary commitment represents a significant loss of liberty, “states must ensure due process protections and safeguard liberty interests when a person is civilly committed.” (People v. Allen (2007) 42 Cal.4th 91, 98.)
Under Welfare and Institutions Code section 5150, “any person” may be taken “into custody” and placed at “a facility designed by the county and approved by the State Department of Mental Health as a facility for 72-hour treatment and evaluation” if there is “probable cause to believe that the person is, as a result of mental disorder, a danger to others, or to himself or herself, or gravely disabled.” (Welf. & Inst. Code, § 5150.) In determining whether probable cause exists, the “authorized” professional must consider “available relevant information about the historical course of the person’s mental disorder,” including “evidence presented by the person” intended for commitment. (Id., § 5150.05, subds. (a)-(b).)
Once probable cause is found, the person may still not be admitted into the facility until the professional person in charge or his or her designee first “assess[es] the individual in person to determine the appropriateness of the involuntary detention.” (Welf. & Inst. Code, § 5151.) If the professional determines that “the person can be properly served without being detained, he or she shall be provided evaluation, crisis intervention, or other inpatient or outpatient services on a voluntary basis.” (Ibid.) If not, the person will be admitted into the facility “for evaluation and treatment for a period not to exceed 72 hours.” (Ibid.)
Once admitted, the person must receive an evaluation as soon as possible and the necessary treatment and care for the full period that he or she is held. (Welf. & Inst. Code, § 5152, subd. (a).) In addition, the person may be “released before 72 hours have elapsed only if the psychiatrist making the final decision believes, as a result of the psychiatrist’s personal observations, that the person no longer requires evaluation or treatment.” (Ibid.)
Section 4011.6 also provides for involuntary civil commitment, but applies in the specific context of a criminal defendant detained in county jail. The statute provides that a judge may, if it appears that a criminal defendant in custody may be mentally disordered, “cause the prisoner to be taken to a facility for 72-hour treatment and evaluation pursuant to Section 5150 of the Welfare and Institutions Code .…” Section 4011.6 further provides that the “local mental health director or his or her designee may examine the prisoner prior to transfer to a facility for treatment and evaluation.”
The plain meaning of section 4011.6, read in conjunction with Welfare and Institutions Code section 5150 et seq., does not, as appellant argues, require a criminal defendant be physically delivered to the premises of a qualified facility whenever the court believes the defendant may be a danger to self or others because of a mental condition. Instead, section 4011.6 specifically uses the permissive term “may” to both allow for examination of the prisoner prior to transfer to a facility and, depending upon the result of that evaluation, whether to actually transport the prisoner to the facility.
Nor does section 4011.6 guarantee the defendant a 72-hour observation period in a mental health facility, as also argued by appellant. Section 4011.6 provides that “[u]pon transfer to a facility” the provisions of Welfare and Institutions Code sections 5150 through 5350 “shall apply to the prisoner.” In other words, if it is determined that the defendant is a danger to self or others or is gravely disabled because of a mental disorder, and it is then further determined that the defendant cannot be properly served without admission, then that admission is controlled by the requirements of Welfare and Institutions Code section 5150 et seq., but not before.
We find no error occurred in applying the plain meaning of section 4011.6 to appellant’s case. The trial court properly ordered an examination of appellant, which took place at the jail at the request of defense counsel. The request was obviously based on appellant’s violent attacks on the deputies at the jail days earlier. The examination, done by a designee of the mental health facility director, was not challenged. And because the examination revealed no probable cause to believe appellant’s acts of violence resulted from a mental defect, he properly remained at the jail.
We also reject appellant’s claim that the trial court acted “‘in excess of its jurisdiction’” by depriving him of a fair trial when it failed to follow through on the 72-hour evaluation. Appellant claims his due process rights were violated because the trial court, in failing to follow through on the evaluation, violated his right “‘not to be tried or convicted while incompetent to stand trial .…’”
But the authority to which appellant cites are cases which address section 1368, which governs incompetence to stand trial. (See, e.g., People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 70 [finding reversible error, in excess of jurisdiction, where court expressed doubt about competency to stand trial, ordered a hearing, but failed to conduct one]; People v. Jenan (2007) 148 Cal.App.4th 1144, 1165 [finding reversible error where court twice expressed doubt about competency but failed to hold a competency hearing]; § 1368 [requiring a hearing any time court doubt’s defendant’s competency, and suspension of criminal proceedings].)
The concerns addressed by a section 4011.6 evaluation are significantly different from the issues addressed in a competency hearing. The purpose of section 4011.6 is to seek an evaluation of whether a defendant suffers from a mental disorder which makes him a danger to self or others. A competency hearing, pursuant to section 1368, requires an evaluation of whether a defendant understands the nature of the criminal proceedings and is able to rationally assist in a defense. (See People v. Lawley (2002) 27 Cal.4th 102, 139 [request that defendant be examined for signs of being under the influence of controlled substances is not the equivalent of a declaration of doubt as to defendant’s competency within the meaning of § 1367].) “[S]ection 4011.6 does not require a defendant to be examined at a mental health facility in order to determine whether the defendant is competent to stand trial, but merely to determine whether the defendant is a danger to himself or others, or is gravely disabled.” (People v. Ford (1997) 59 Cal.App.4th Supp. 1, 4-5.) And, in fact, a conclusion that a defendant is dangerous or gravely disabled does not necessarily mean the defendant is incompetent to stand trial. (Id. at p. Supp. 5.)
It is clear from the discussions at the hearing and the referral order that appellant’s referral was made solely pursuant to section 4011.6, under the belief that appellant was potentially dangerous to himself or others. While section 1368 requires “all proceedings in the criminal prosecution … be suspended,” section 4011.6 contains no such requirement. As such, the trial court did not act “in excess of its jurisdiction.”
2. Did the trial court err in failing to conduct a competency hearing pursuant to section 1368?
Appellant contends that the trial court violated his due process rights when it failed to hold a competency hearing under section 1368. He claims such a hearing was necessary because both counsel and the trial court expressed doubts about appellant’s ability to represent himself and because of his mental health history. We disagree.
Procedural background
Because appellant challenges not only the trial court’s failure to order a competency hearing but also its decision to allow appellant to represent himself (see part 3, post), and because both of these issues were discussed simultaneously at the January 30, 2007, hearing, we repeat significant portions of that hearing here.
Appellant represented himself at the preliminary hearing. Reappointed counsel appeared for him on January 29, 2007, the pretrial conference, although appellant was absent. The court explained appellant’s absence, stating, “[Appellant] is having problems again today. We sent him back to the jail. We’ll put it on tomorrow, the 30th, see what transpires.”
The following morning, appellant appeared with counsel. At the beginning of the session, counsel stated,
“There’s a couple things. Number one, I think he certainly understands the nature of these proceedings, but I don’t think he’s capable of any type of rational assistance to his attorney. [¶] Number two, he wants to fire me. I think he’s requesting a Marsden hearing. I don’t think he’s competent. I don’t think he’s able to rationally assist the attorney or himself, if he’s pro per again.”
Appellant described his relationship with counsel as “a constant battle.”
Outside the presence of the prosecutor, appellant complained that his attorney “seems like he wants to do it his way” and had predicted that appellant was “going to lose” at trial. Appellant described counsel as “kind of like … not even trying.” The trial court explained to appellant that his attorney was giving him his “best advice as to what your chances are at trial as far as losing or winning” in light of an offer made by the district attorney “that is far less than the charges that you are facing.” Appellant stated that he thought it was going to be a “constant battle if I told him this, if I say I want you to ask this question .…” The court reminded appellant that his counsel was experienced and was doing his best, even if his strategy conflicted with appellant’s suggestions.
The court told appellant, “If you want to have your suggestions be the prime defense, then perhaps you ought to go back and represent yourself.” Appellant stated, “I can’t do it anymore with him” and said he could be ready for trial on February 5. The court warned appellant about representing himself, and, although he had “been through this Faretta business” before, explained that if he did so, he would be at a disadvantage because he had not had any legal training.
The trial court then discussed several possible trial dates, and appellant insisted that he “would like it as soon as possible,” because he “just want[ed] to be the first pro per to win a jury trial.” The trial court again cautioned appellant, stating that his chances of winning “as a pro per are not all that good.” But appellant stated he understood, and “[s]ince I went to jury trial before, I think I know all the procedures and how to do it.”
At this point, the trial court stated, “I don’t think he’s 1368. I don’t see any problem,” although the court noted that a lack of cooperation with counsel was evident. Counsel stated that, after having reviewed the case with appellant, he had grave concerns that appellant did not comprehend what the defenses were and what elements had to be proved. The court stated that it appreciated counsel’s concern, which it described as identical to its own, but that those concerns did “not rise to a 1368 situation.” As noted by the court, appellant “know[s] the roles of all the parties. He does understand why he’s here. He understands the nature of the charge .…” Appellant interrupted stating, “I don’t need a psychologist to tell me I’m competent to stand trial.” The court reassured appellant stating, “I think you’re competent,” but “I think you’re foolish for trying to represent yourself.”
After some further discussion about scheduling, counsel asked whether the trial court was “technically” not ruling on the Marsden motion, but instead granting a Faretta motion. The court stated that it thought appellant had changed the Marsden motion into a Faretta motion. The court stated that it would grant appellant’s motion to represent himself, but again warned appellant that it had misgivings about his ability to represent himself. Appellant stated that he understood.
The trial court then asked, “You are still insisting on doing so, is that right?” Appellant said, “Yeah. You are saying, hey, Marsden is having a conflict attorney.” The court clarified:
“I’m finding a Marsden, where you and the attorney are not getting along and there’s a problem. The other problem is that you’ve also said you would rather represent yourself. I don’t think there’s Marsden evidence here. In other words, evidence to the extent that I have to relieve [defense counsel’s] office or him because I think the disagreement here, best I can understand it, is that you don’t like hearing what he’s telling you.”
Appellant responded, “Yeah,” and the court continued:
“Perhaps you might even have a disagreement on the strategy at trial. That’s not Marsden material, per se. Marsdens are—not very often we grant those. It has to be something very dynamic in respect to your ability not to get along. I’m still confident [defense counsel] could represent you in this case, could do as good as anybody could do, and he would do as good a job as anybody would do. [¶] It’s just the fact that you seem to be opposed to his views on the case and perhaps his strategy. You are saying you wish again to represent yourself. If that’s the case, if that’s truly what you want to do, I cannot deny you that opportunity.”
The court again asked appellant, “Is that where we are,” to which appellant replied, “Yeah.” The court then stated that it would relieve the public defender’s office and allow appellant to represent himself.
The court and appellant discussed discovery for the consolidated cases against him and scheduled trial for the following week. Appellant subsequently represented himself at trial, where he made a short opening statement asking the jurors to reserve judgment, cross-examined the four prosecution witnesses about key elements of the various offenses, and made a closing argument summarizing what he described as a lack of evidence against him.
Applicable law and analysis
A criminal defendant “cannot be tried or adjudged to punishment while … mentally incompetent.” (§ 1367, subd. (a).) “A defendant is mentally incompetent” if a mental disorder prevents him or her from understanding “the nature of the criminal proceedings” or assisting counsel “in the conduct of a defense in a rational manner.” (Ibid.) Under section 1369, subdivision (f), a defendant is presumed mentally competent unless proved otherwise by a preponderance of the evidence.
State law and federal due process bar the trial or conviction of a mentally incompetent defendant. (People v. Rogers (2006) 39 Cal.4th 826, 846.) Both
“require a trial judge to suspend trial proceedings and conduct a competency hearing whenever the court is presented with substantial evidence of incompetence, that is, evidence that raises a reasonable or bona fide doubt concerning the defendant’s competence to stand trial. [Citations.] The court’s duty to conduct a competency hearing may arise at any time prior to judgment. [Citations.] Evidence of incompetence may emanate from several sources, including the defendant’s demeanor, irrational behavior, and prior mental evaluations. [Citations.] But to be entitled to a competency hearing, ‘a defendant must exhibit more than … a preexisting psychiatric condition that has little bearing on the question … whether the defendant can assist his defense counsel.’ [Citations.]” (Id. at p. 847.)
Section 1368, subdivision (a), which sets forth the procedure for implementing section 1367 protections, provides: “If, during the pendency of an action and prior to judgment, a doubt arises in the mind of the judge as to the mental competence of the defendant, he or she shall state that doubt in the record and inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent.” If, in response, defense counsel informs the court of a belief that the defendant is or may be incompetent, the court shall order the question of the defendant’s mental competence determined at a formal hearing held pursuant to sections 1368.1 and 1369. (§ 1368, subd. (b).) The court may order a competency hearing even if counsel believes the defendant is competent. (§ 1368, subd. (b).) But, “[a] doubt in the mind of counsel, or anyone else other than the trial court is not sufficient to require a hearing” under section 1368. (People v. Wade (1959) 53 Cal.2d 322, 336, disapproved on other grounds in People v. Carpenter (1997) 15 Cal.4th 312, 381-382.)
When a trial court has ordered a hearing to determine a defendant’s competence, it must suspend all proceedings in the criminal prosecution until that determination has been made. (§ 1368, subd. (c).) Failure to do so renders any subsequent judgment a nullity, as an act in excess of jurisdiction. (People v. Superior Court (Marks), supra, 1 Cal.4th at pp. 70-71.)
“‘A trial court is required to conduct a competence hearing, sua sponte if necessary, whenever there is substantial evidence of mental incompetence. [Citations.] Substantial evidence for these purposes is evidence that raises a reasonable doubt on the issue. [Citation.]’” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1110, quoting People v. Howard (1992) 1 Cal.4th 1132, 1163.) “[T]his doubt which triggers the obligation of the trial judge to order a hearing on present sanity is not a subjective one but rather a doubt to be determined objectively from the record.” (People v. Sundberg (1981) 124 Cal.App.3d 944, 955-956; see People v. Tomas (1977) 74 Cal.App.3d 75, 90.)
On appeal, a “trial court’s decision whether or not to hold a competence hearing is entitled to deference, because the court has the opportunity to observe the defendant during trial.” (People v. Rogers, supra, 39 Cal.4th at p. 847.) Furthermore, “trial counsel’s failure to seek a competency hearing … is significant because trial counsel interacts with the defendant on a daily basis and is in the best position to evaluate whether the defendant is able to participate meaningfully in the proceedings.” (Id. at p. 848.) But the failure to declare a doubt and conduct a hearing when there is substantial evidence of incompetence also requires reversal of the judgment of conviction. (Id. at p. 847.)
For instance, we found error and reversed the judgment of conviction in People v. Jenan, supra, 148 Cal.App.4th 1144, when Judge Couillard, who also presided over the proceedings at issue here, twice expressed doubt about the mental competence of the defendant, who represented himself, and warned the defendant of a competency hearing, but did not order one. Neither did Judge Couillard appoint counsel pursuant to section 1368, subdivision (a), which provides, inter alia, that if a doubt arises in the mind of the judge as to the mental competence of the defendant, and the defendant is not represented by counsel, the court shall appoint counsel. At the preliminary hearing, the defendant and his brother, a codefendant, had engaged the court, the prosecutor, and the district attorney’s investigator in an incomprehensible dialogue. (Jenan, at pp. 1146-1164.) We determined that denying the defendant appointed counsel and forcing him to represent himself “at a time when his mental competence was at issue” compelled reversal of the judgment. (Id. at p. 1165.)
Here, appellant claims defense counsel’s statement at the January 30, 2007, hearing, that he had a doubt as to appellant’s competence, and that he did not have the ability “to rationally assist the attorney or himself, if he’s pro per again,” should have triggered a full competency hearing. We disagree.
Defense counsel did state at one point, “I don’t think he’s capable of any type of rational assistance to his attorney,” but he also stated appellant “certainly understands the nature of these proceedings.” Defense counsel then stated appellant wanted to “fire” him and was requesting a Marsden hearing, which was followed by the statement, “I don’t think he’s competent. I don’t think he’s able to rationally assist the attorney or himself, if he’s pro per again.” This statement was followed by appellant’s observation that he and defense counsel were involved in what appellant described twice as a “constant battle” because defense counsel wanted “to do it his way.”
Viewed in context, we see defense counsel’s statements as attempting to underscore appellant’s unwillingness to agree to his counsel’s preferred strategy of defense, as well as his concern with appellant’s ability to represent himself. In any event, even if defense counsel’s statements questioned appellant’s competence to stand trial or his ability to assist in his defense, “[a] declaration of doubt by counsel alone is not sufficient to trigger a statutory right to a competency hearing.” (People v. Garcia (2008) 159 Cal.App.4th 163, 170.)
Appellant nevertheless argues the trial court’s conclusion that he was competent to stand trial was not justified because of appellant’s erratic and self-destructive behavior, the fact that he was almost continuously in a safety cell during these proceedings, that he had been declared incompetent in another county, and that he had a history of mental problems since age seven.
But “[e]vidence regarding past events that does no more than form the basis for speculation regarding possible current incompetence is not sufficient.” (People v. Hayes (1999) 21 Cal.4th 1211, 1281.) In Hayes, the trial court denied the defendant’s motion that competency proceedings be undertaken. In support of his motion, the defendant read a statement which referred to his prior acquittal of murder on grounds of insanity, past psychiatric treatment, a prior finding of incompetence to stand trial, commitment to a mental institution in another state, and treatment with psychotropic medication. The court found “[n]one of this established present incompetence to stand trial.” (Id. at p. 1281, fn. 30.) “[N]othing in the record suggests that at any time during these proceedings appellant was unable to understand the nature of the proceedings or to assist counsel in conducting the defense in a rational manner. Defense counsel never expressed a doubt as to appellant’s competence.” (Id. at p. 1282.) Moreover, the defendant’s effort and work as cocounsel demonstrated that he was able to assist defense counsel, was completely aware of the nature of the proceedings, and made rational legal decisions. (Ibid.)
And in People v. Davis (1995) 10 Cal.4th 463, 525-526, the defendant asserted that the trial court had a sua sponte duty to conduct a section 1368 hearing based on reports of defense counsel concerning the defendant’s anger, fear of mistreatment in jail, lack of cooperation, and insistence on standing in the doorway of the courtroom during the penalty phase of trial. Rejecting this claim, our Supreme Court noted:
“Under the applicable substantial evidence test, ‘more is required to raise a doubt than mere bizarre actions [citation] or bizarre statements [citation] or statements of defense counsel that defendant is incapable of cooperating in his defense [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.’” (People v. Davis, supra, at p. 527, quoting People v. Laudermilk (1967) 67 Cal.2d 272, 285.)
Here, there was no substantial evidence of incompetency so as to require the commencement of competency proceedings. In fact, there was substantial evidence that appellant was competent. He firmly denied any suicidal intent and admitted that his recent threat was a ruse to attack one of the guards. He also admitted that he was confined to a safety cell because of his inability to get along with others. In addition, a mental health professional, who personally examined appellant, opined that appellant’s violent behavior was not due to mental illness. And finally, the trial court was able to observe appellant’s conduct in court, which up to that point included his first Faretta hearing, his request for limited reappointment of counsel, his self-representation at the preliminary hearing, and his request for reappointment of counsel.
In sum, we conclude that the trial court was at no point required to order a formal inquiry into appellant’s competency. There was no evidence to raise a doubt about appellant’s ability to understand the nature of the proceedings against him and to assist in his own defense. We reject appellant’s claim to the contrary.
3. Did the trial court err when it granted appellant’s request to represent himself?
Appellant contends his Faretta request should have been denied as it was equivocal. Specifically, appellant claims his request was that he no longer be represented by his appointed counsel, and “[i]t was the trial court that suggested that appellant obtain his request by opting to represent himself,” in essence changing his Marsden motion into a Faretta motion. We disagree.
A criminal defendant has a right to represent himself as long as he “‘knowingly and intelligently’ forgo[es] those relinquished benefits” associated with the right to counsel. (Faretta v. California, supra, 422 U.S. at p. 835.) To invoke the constitutional right to self-representation, a criminal defendant must make an unequivocal assertion of that right within a reasonable time prior to trial, or if a defendant has chosen to proceed to trial represented by counsel, his demand during trial to discharge counsel and proceed pro se is addressed to the sound discretion of the trial court. (People v. Lawley, supra, 27 Cal.4th at p. 149; People v. Windham (1977) 19 Cal.3d 121, 127-128.)
In considering the motion, the court must make the defendant aware of the dangers and disadvantages of self-representation, and “‘“[t]he right of self-representation is waived unless [the defendant] articulately and unmistakably demand[s] to proceed pro se.”’” (People v. Dent (2003) 30 Cal.4th 213, 218, quoting People v. Marshall (1997) 15 Cal.4th 1, 21.) The court should draw all reasonable inferences against waiver of the right to counsel. (People v. Dent, supra, at p. 218; People v. Marshall, supra, at p. 23.) On appeal, we review the entire record de novo to determine whether appellant invoked the right to self-representation. (People v. Dent, supra, at p. 218; People v. Marshall, supra, at pp. 24-25.)
Appellant contends his case is similar to People v. Scott (2001) 91 Cal.App.4th 1197, in which the defendant made his Faretta motion immediately after his Marsden motion was denied. In Scott, the defendant specifically stated, “If I can’t get a [new] state appointed attorney, then I represent myself,” and “For the record, I don’t want this attorney representing me. You the court is coercing me.” The court in Scott found the defendant’s comments equivocal, finding that he made the Faretta motion only because he wanted to get rid of the specific counsel appointed him. (People v. Scott, supra, at pp. 1205-1206.)
But in People v. Michaels (2002) 28 Cal.4th 486, our Supreme Court found nothing equivocal in a request that counsel be removed, and if not removed, that the defendant then wanted to represent himself. Appellant “confuses an ‘equivocal’ request with a ‘conditional’ request. There is nothing equivocal in a request that counsel be removed and, if not removed, that the defendant wants to represent himself. Once the court has decided not to remove counsel, the defendant has the choice of going ahead with existing counsel or representing himself. There is nothing improper in putting the defendant to this choice, so long as the court did not err in refusing to remove counsel. [Citations.]” (Id. at p. 524.) Moreover, even if the initial request for self-representation is equivocal, the trial court is not required to deny it without further inquiry. (Ibid.)
Here, after appellant complained about counsel’s representation, the trial court explained that counsel was experienced and “doing his best,” even if appellant did not agree with counsel’s strategy. Although the trial court did suggest that if appellant wanted to have his suggestions “be the prime defense,” “perhaps” appellant ought to represent himself, the trial court thereafter repeatedly warned appellant about the risks of self-representation and repeatedly asked appellant if he understood those risks. Each time appellant stated that he did, and at one point specifically stated that he wanted to be “the first pro per to win a jury trial.”
During the course of the hearing, the trial court stated that it thought appellant had “changed” the Marsden motion into a Faretta motion, but that, in any event, it would not have granted the Marsden motion, because appellant’s disagreement on the strategy at trial was “not Marsden material, per se.” Appellant does not assert that his Marsden motion was erroneously denied and the record demonstrates no such error.
Appellant also relies on People v. Hannibal (2006) 143 Cal.App.4th 1087 for the proposition that his request for self-representation was not unequivocal because he was willing to work with a different lawyer. In Hannibal, the defendant asked that he be allowed to discharge his attorney because he thought he could represent himself in a mentally disordered offender civil proceeding. The court in Hannibal noted that the defendant’s right to represent himself in the civil proceeding was purely statutory and denial of his request was a matter of judicial discretion. (Id. at p. 1092.) The trial court found no abuse of discretion in denying the defendant’s request for self-representation because the defendant did not fully understand the legal concepts of res judicata and collateral estoppel, which were pertinent to his case; he questioned his attorney’s wish to admit a doctor’s report into the proceeding, a report which was crucial to his defense; and the defendant indicated that he would be willing to accept a different lawyer, such as his former attorney. (Id. at p. 1092-1093.)
Appellant contends that he, too, was willing to work with other counsel when he stated that he couldn’t “do it anymore with [present counsel],” but that he liked the work Deputy Public Defender Patrick Hart did and wanted him to remain on his other cases. We read the context in which appellant’s statements were made slightly differently. At the hearing, the trial court stated it was only relieving the public defender’s office on the current case, but that it was not going to relieve counsel on the other case because “there’s a motion pending.” Appellant agreed, stating, “I want them to do that,” as Hart “was doing all the motions.” Nowhere in the hearing did appellant state that he was willing to work with other counsel on the current case.
We conclude the record does not establish that appellant’s request for self-representation was equivocal.
At oral argument, appellant argued that Indiana v. Edwards (2008) 554 U.S. __ [128 S.Ct. 2379] (Edwards), which was decided after briefing in this case was complete, held that the standard of competence to represent oneself at trial is higher than the standard of competence to stand trial, and that a rational and factual understanding of the charges against a criminal defendant, relied on by the trial court here, was not sufficient to allow appellant to represent himself. For two reasons, we find appellant’s reliance on the holding of Edwards to be of no avail.
First, the intersection between the right of self-representation and the requirement of competence arises in a different context in this case than it did in Edwards. The question presented there was “whether the Constitution permits a State to limit [a] defendant’s self-representation right by insisting upon representation by counsel at trial—on the ground that the defendant lacks the mental capacity to conduct his trial defense unless represented.” (Edwards, supra, 544 U.S. at p. __ [128 S.Ct. at pp. 2385-2386].) In this case, of course, the trial court did not deny but granted the right of self-representation. As noted in Edwards, the different contexts raise different issues and concerns. (Id. at p. __ [128 S.Ct. at pp. 2385-2388] [Godinez v. Moran (1993) 509 U.S. 389 “involved a State that sought to permit a gray-area defendant to represent himself. Godinez’s constitutional holding is that a State may do so. But that holding simply does not tell a State whether it may deny a gray-area defendant the right to represent himself—the matter at issue here”].) Edwards simply does not tell us whether or under what circumstances a trial court must, as opposed to may, apply a heightened test of competence to a defendant’s request for self-representation at trial.
Second, we find nothing in the record to show that, either at the time of his Faretta motion or during his trial, appellant was not competent under even a heightened standard. Counsel for appellant on appeal asks that we consider appellant’s history of mental illness, previous findings of incompetence under section 1368, and the very nature of the crimes alleged here to have occurred. Certainly, we agree with counsel that the record amply demonstrates appellant’s battle with mental illness. But as noted by the court in Edwards, “Mental illness itself is not a unitary concept. It varies in degree. It can vary over time. It interferes with an individual’s functioning at different times in different ways.” (Edwards, supra, 544 U.S. at p. __ [128 S.Ct. at p. 2386].)
The trial court repeatedly discussed the perils of self-representation with appellant, and in that discussion appellant made it unequivocally clear that he wanted to represent himself. Appellant has failed to establish that the court abused its discretion in granting his request for self-representation.
4. Was there sufficient evidence to find force likely to produce great bodily injury?
Finally, appellant argues there is insufficient evidence to support his conviction on the charge of violating section 245, subdivision (c), which prohibits assault on an officer engaged in the performance of his duties with a force likely to cause great bodily injury. We disagree.
The substantial evidence rule is the correct standard of review under which this court must view the lower court’s holding. This rule is based on the United States Supreme Court’s holding in Jackson v. Virginia (1979) 443 U.S. 307, which was followed by the California Supreme Court in People v. Johnson (1980) 26 Cal.3d 557 and again in People v. Cuevas (1995) 12 Cal.4th 252. Johnson held that “whenever the evidentiary support for a conviction faces a challenge on appeal, the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson, supra, at p. 562.) Substantial, for this purpose, is defined as “‘reasonable, credible, and of solid value.’” (People v. Cuevas, supra, at p. 260.) This standard does not require the appellate court to ask whether it believes the defendant is guilty beyond a reasonable doubt, instead it simply requires the appellate court to ask if it believes that any rational trier of fact could have come to the conclusion made in the case being reviewed. (Jackson v. Virginia, supra, at pp. 318-319.)
Section 245, subdivision (c) prohibits an assault on an officer engaged in the performance of his duties committed with force likely to cause great bodily injury. “Great bodily injury is bodily injury which is significant or substantial, not insignificant, trivial or moderate. [Citations.]” (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066.) The determination of whether there was great bodily injury is a factual one. (People v. Wells (1971) 14 Cal.App.3d 348, 358.)
It is also well established that whether the force used in commission of the assault was such as to have been likely to produce great bodily injury is fundamentally a question of fact to be determined by the jury based on all the evidence. (People v. Armstrong, supra, 8 Cal.App.4th at p. 1066; see also People v. Sargent (1999) 19 Cal.4th 1206, 1221 [noting that “[n]umerous cases have held that whether the force used by the defendant was likely to produce great bodily injury is a question for the trier of fact to decide”].) “‘The statute prohibits an assault by means of force likely to produce great bodily injury, not the use of force which does in fact produce such injury. While … the results of an assault are often highly probative of the amount of force used, they cannot be conclusive.’ [Citation.]” (People v. Armstrong, supra, at pp. 1065-1066.) Indeed, an assault may be punishable by section 245, subdivision (c) even if the assailant makes no physical contact with the victim at all. Because the statute focuses on force likely to produce great bodily injury, “whether the victim in fact suffers any harm is immaterial.” (People v. Aguilar (1997) 16 Cal.4th 1023, 1028.)
Appellant claims that he should not have been convicted of violating section 245, subdivision (c) because the type of assault alleged was not likely to inflict great bodily injury and therefore, as a matter of law, could not violate the statute. According to appellant, his actions “of throwing the blanket and flailing around with his arms and legs were not objectively likely to produce great bodily injury.” We disagree.
The use of hands or fists alone may support a conviction of assault by means of force likely to produce great bodily injury. (People v. Aguilar, supra, 16 Cal.4th at p. 1028.) “[T]he cases are legion in holding that an assault by means of force likely to produce great bodily injury may be committed with fists. [Citations.]” (People v. Chavez (1968) 268 Cal.App.2d 381, 384.) Indeed, a single blow with a fist is sufficient to support a conviction for assault by means likely to produce great bodily injury. (In re Nirran W. (1989) 207 Cal.App.3d 1157, 1161.)
Here, when Lieutenant Douglass opened appellant’s cell door, appellant charged through the door with a blanket he attempted to throw over Douglass’s head. He also tried to punch him in the head with a closed fist, but Douglass grabbed his arm and was able to prevent him from making contact. After the officers brought appellant to the ground, and in the process brought Douglass down as well, appellant continued to struggle, kick, and flail at Douglass, who continued to hold appellant’s left hand. As result, Douglass’s leg was broken in two places.
There is no question that appellant’s conduct, as described by the officers, fell within the definition of the crime. As respondent notes, it took a number of officers to subdue appellant. Lieutenant Douglass estimated that there were seven deputies involved in trying to restrain appellant. All the while appellant continued to kick and flail with such force that Douglass did not even realize his leg was broken until he stood up. Viewed in the light most favorable to the verdict, this evidence is unquestionably sufficient to permit a rational trier of fact to conclude that appellant used force likely to produce great bodily injury. That appellant’s conduct might also constitute the lesser related offense of assault, pursuant to section 240, is irrelevant. The jury was presented with this option and rejected it.
DISPOSITION
The judgment is affirmed.
WE CONCUR: CORNELL, Acting P.J., KANE, J.