Opinion
B293152
04-24-2020
THE PEOPLE, Plaintiff and Respondent, v. JASMINE ADAMS, Defendant and Appellant.
Teresa Biagini, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, and Susan Sullivan Pithey, Assistant Attorney Generals, Michael R. Johnsen and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA450869) APPEAL from a judgment of the Superior Court of Los Angeles County, Jose I Sandoval, Judge. Affirmed. Teresa Biagini, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, and Susan Sullivan Pithey, Assistant Attorney Generals, Michael R. Johnsen and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Jasmine Nicole Adams was involved in an altercation with several Sheriff's deputies while she was housed at the Twin Towers Correctional Facility. One of the deputies sustained a laceration or abrasion to her wrist, and another sustained an injury to his knee. After a trial from which defendant was absented due to repeated courtroom outbursts, a jury found defendant guilty of resisting an executive officer and battery with injury on a peace officer.
We refer to defendant by her preferred name, Jasmine Nicole Adams, rather than Arthur Able Garcia.
Defendant contends both convictions must be reversed due to two constitutional errors. First, she contends that the trial court violated her due process rights by failing to order a competency evaluation. Second, she contends the trial court deprived her of her right to testify by excluding her from the trial. Neither of these constitutional claims has merit. The trial court did not abuse its discretion by declining to declare a doubt as to defendant's competency, and defendant forfeited her right to testify by continually acting out during the proceedings.
Defendant also argues that the battery conviction should be reversed for two additional reasons. First, she contends that the prosecutor impermissibly amended the information by adding a victim about whom evidence was not adduced at the preliminary hearing, and her counsel rendered ineffective assistance by failing to object to the amendment. Second, she claims the evidence was insufficient to establish that either victim suffered an injury serious enough to require medical attention. We reject both contentions. Defendant forfeited any objection about the amendment, and we conclude she cannot demonstrate that her counsel was ineffective for failing to make the objection. As to the injuries, we find that the jury reasonably could have concluded they required medical attention. We accordingly affirm both of defendant's convictions. We also reject as forfeited her contention that she should have received an ability-to-pay hearing under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
PROCEDURAL HISTORY
On November 22, 2016, defendant was charged by information with one felony count of battery with injury on peace officer Haley Bermudez (Pen. Code, § 243, subd. (c)(2))and one felony count of resisting executive officers Louis Aguilar and Samuel Pangilinan(§ 69, subd. (a)). The information further alleged defendant suffered a prison prior (§ 667.5, subd. (b)) and was ineligible for probation (§ 1203, subd. (e)(4)).
All further statutory references are to the Penal Code unless otherwise indicated.
The court suspended criminal proceedings on January 11, 2017, after declaring a doubt as to defendant's competency. Defendant was found incompetent on May 3, 2017. Defendant regained competency after she was placed in a state hospital and involuntarily medicated. Criminal proceedings were reinstated on July 17, 2018.
Jury trial began on September 18, 2018. Defendant caused several disruptions and was removed from the courtroom. Toward the end of trial, the prosecutor amended the information to add Pangilinan as an additional victim in the battery with injury count. Defense counsel did not object to the amendment. The jury found defendant guilty of both offenses. The court struck defendant's prison prior and sentenced her to the midterm of two years in county jail on the battery count. The court also sentenced defendant to the midterm of two years on the resisting count and ran that sentence concurrently. Due to defendant's extensive presentence custody credit, however, the sentence effectively was for time served. The court imposed a restitution fine of $300 (§ 1202.4, subd. (b)), a criminal conviction facility assessment of $30 (Gov. Code, § 70373), and a court security fee of $40 (§ 1465.8, subd. (a)(1)). Defendant timely appealed.
FACTUAL BACKGROUND
On November 10, 2015, defendant was housed at the Twin Towers Correctional Facility in Los Angeles. Due to her violent behavior, defendant was classified as a "high observation" inmate and was required to wear a waist chain when outside her cell. Additionally, a sergeant was required to observe and videotape all attempts to remove defendant from her cell.
Defendant had a court appearance scheduled for November 10, 2015. Los Angeles County Sheriff's Department Sergeant Kellee Hicks was assigned to videotape the removal of defendant from her cell around 6:30 a.m. that morning. Bermudez and Pangilinan were among the deputies assigned to remove defendant from her cell.
Hicks, Bermudez, and Pangilinan all testified that defendant was cooperative while she was being waist chained but became upset when they told her she could not bring her property bag to court with her. Hicks, who testified that she had been through similar exchanges about the property bag with defendant "maybe about 15" times previously, told defendant she could either go to court without the property bag or return to her cell. When defendant refused to do either, Hicks ordered Bermudez, Pangilinan, and the other deputies to place defendant back in her cell.
Before they could do so, defendant grabbed the collar of Bermudez's jacket and "forcefully yank[ed]" her. As Bermudez attempted to disengage defendant, Hicks ordered the deputies to "take her down." Defendant "continued to fight" as the deputies moved her to the ground. Hicks testified that defendant kicked, grabbed, and attempted to bite the deputies while she recorded the incident with a handheld video camera. The altercation continued for "several minutes" before defendant was subdued and removed from the scene according to jail protocol. Hicks' video of the incident was played for the jury and admitted into evidence.
Bermudez and Pangilinan recounted the incident the same way as Hicks. Bermudez additionally testified that she received "an approximately two inch laceration" to her wrist during the incident. Bermudez described the pain she felt from the injury as a two on a scale of one to ten, and acknowledged that the injury "wasn't that serious." She nevertheless worried about contracting a communicable disease through the wound, because it bled and opened her skin. Bermudez went to the doctor "[t]o get it cleaned to get any diseases." She testified that jail protocol called for her to see a doctor, and that Hicks told her to, but that she would have gone regardless. The doctor did not give Bermudez any medicines, but drew a blood sample. Bermudez returned to the doctor periodically over the next year for additional blood tests.
Hicks described Bermudez's injury as "an abrasion." Bermudez agreed with the prosecutor's characterization of the injury as "a scratch."
Pangilinan testified that he injured his left knee during the incident. He was not sure precisely what happened to his knee— "I either landed hard on the cement floor or during the take down"—but noticed it was sore within about five or ten minutes of the incident. Pangilinan felt pain every time he "turned [his] knee to a 45 degree angle"; he described the pain as "[b]etween 7 and 8" on a scale of one to ten. Pangilinan went to the doctor that day and was diagnosed with "swollen-ness." The doctor gave him an ice pack and some pain medication, and told him to take two days off work.
Defendant did not sustain any injuries in the incident and did not present any evidence at trial.
DISCUSSION
I. Competency
A. Background
The court initially declared a doubt as to defendant's competency and suspended proceedings on January 11, 2017 "[b]ased on this court's observation of [defendant's] earlier appearances in this courtroom." It is unclear from the record how defendant behaved during those appearances, though the preliminary hearing transcript dated November 8, 2016 reveals that defendant engaged in a verbal outburst during that hearing. The court ordered defendant committed to a state mental hospital and authorized her involuntary medication with psychotropic drugs.
In a report dated February 13, 2018, defendant's treatment team opined that she remained incompetent at that time. The report noted that the doctor who initially evaluated defendant's competence in February 2017 determined that defendant experienced "a number of delusions about the deputies, inmates, and the belief that sexual acts were occurring in the jail in order to dissuade witnesses in the jail from testifying about what was going on in the jail," and was "so immersed in these delusions that she is unable to have a discussion about her current charges." When defendant was evaluated a second time, in June 2017, she "reported she had been held hostage illegally and was getting raped in jail and . . . planned to sue the sheriff's department for $235 million dollars for rape." The report noted that defendant refused to accept psychotropic medication at that time. It also noted, however, that she "continues to take hormone therapy."
In a report dated May 25, 2018 ("the May report"), defendant's treatment team concluded that she had attained competence. According to the May report, defendant had not had any behavioral issues for the past month, after "[m]edication adjustments were made and she was provided individual coaching." The report continued, "[defendant] demonstrates a clear and rational understanding of her legal situation, denying allegations of being raped while in the courtroom and identifying clear evidence which might be used in a case against her." "Although she continues to exhibit delusions of false imprisonment, these symptoms are no longer impeding her ability to cooperate with her treatment and thus with her counsel." The May report also noted that defendant "has been adherent to her prescribed medication" even though the involuntary medication order had lapsed and continued "to take hormone therapy."
Based on the May report, the court reinstated criminal proceedings on July 17, 2018. On September 18, 2018, a different court to which the matter was transferred for trial reviewed defendant's file and expressed concern "that there were lingering issues of her competence in that [May] report," namely defendant's continued delusions of false imprisonment. The court asked counsel if defendant remained compliant with her medication, and he stated, "I think she's under medication," and "I believe she's also getting some hormone therapy."
Before the court called in a jury panel, the prosecutor offered to globally resolve the case and another felony case pending against defendant if she pled guilty to two misdemeanors and accepted a sentence of time served. Defendant declined the offer. During a colloquy with the court, defendant explained that she wanted to go to trial because there were "some things I want to get out" about her alleged rape in jail. She further expressed concern that "the video was restored," and that her counsel had not subpoenaed other inmates who allegedly witnessed her predawn removal from her cell.
The court asked defendant to clarify what she meant by "restored video." She said, "Meaning say, for example, the video was darkened in the officers area that was - - they were assaulting me. It came to the point where the officer hit me twice and then I went ahead and protected myself in that assault. . . . There's two cases of an assault [this case and her other pending case], but in both the officers hit me first and then I assaulted them back." The prosecutor confirmed that there were in fact multiple videos of the incident, and that "defendant is correct one of them was a darker view." Defendant said she had only seen the allegedly "restored" one, evidently the one Hicks filmed. The court again asked defendant what she meant by "restored video," and she answered, "The videotape cut the part of where the officer assaulted me and it broke down to the video where all of a sudden in the video it's just cut into different - - several pieces instead of one length. It's cut - - this was a sergeant escort video. They did not give the actual video that was in the premises of the vicinity of the corner."
The prosecutor indicated that she had reviewed the second video, a surveillance video presumably taken from "the vicinity of the corner," with defense counsel that morning, and planned to use both videos at trial. The court then told defendant, "I just want to make sure you understand the evidence against you before you say I'm going to go trial [sic]. If you're saying . . . they monkeyed around with the videotape, I want to make sure you know exactly what videotape they're going to show and the strength of the people's case." Defendant said "Yes."
The court continued, "Now you mentioned that you were raped in jail." Defendant again said "Yes." The court said, "I am not going to allow that evidence to come into your trial absent some strong proof. . . . Please understand that's not going to come into this trial. Is that principally what's on your mind here, you're concerned that somebody monkeyed around with the videotape?" Defendant responded, "There was witnesses that actually seen the actual assault take place." The court said, "Well, it doesn't matter if the videotape covered everything." Defendant responded that the video "was restored most likely," but did not have an answer when the court asked if she had any proof to support that allegation.
Defendant then told the court that she would present evidence of the "restoration" during her appeal. The court explained that was not how appeals work; "[t]he court of appeal looks at the record and then bases their decision on what was admitted at the trial." Defendant responded, "You're not giving me anything to work with as well I've been asking the public defender to request for the witnesses to come forward as well as other things I have testimony of witnesses that heard the situation as well, he's not giving that to the DA, nothing." The court told defendant, "I will rely on his good judgment to determine what it is he should do in aid of your defense and I'm not going to stick my nose in any discussion you may have had with him, that's private attorney-client discussions. Would it help you . . . if we show you the videotapes that are going to come into evidence, exactly what the jury is going to see would that change your mind about possibly taking the offer?" Defendant replied, "No. Because I know what you guys are doing, this is not a fair trial." The court said, "All right. That's fine. Perfectly fine. [We'll] call up the jury, get them oriented, and we'll get going."
Defendant apparently had some sort of outburst in the presence of the prospective jurors during unreported voir dire. As the court was excusing the prospective jurors for the day, it said, "Please have a good evening, please don't discuss this please don't let this out burst [sic] affect your decision. . . ." After the prospective jurors left, the court told defendant, "I'm not going to tolerate that" and explained that defendant was "on warning." The court continued, "If you are going to engage in these kinds of outbursts, I'm going to assume that you're not going to cooperate here and you won't be participating in this trial." Defendant replied, "Then I won't be participating."
The next morning, before the prospective jurors arrived, defendant told the court that her mother had spoken with an attorney who informed her that defendant could introduce new evidence in her appeal. She continued, "That's what I was upset about. You told me that you couldn't. That the only thing you could bring in is what's on the table. I was upset and found out myself that you can bring in new evidence." The court told her, "I'm glad that's been resolved and that there's no basis for any further outbursts." Defendant concurred. When the prospective jurors arrived, the court admonished them not to consider defendant's previous outburst.
Defendant interrupted her counsel's opening statement and mentioned an assault before the court was able to excuse the jury. Once the jury left, defendant told the court, "You're not giving this the correct thing that happened for them assaulting me three times and then I protected myself. You're acting as if the cops didn't assault me at all to start with that." She also mentioned the "restored video." The court explained that the trial was "only at opening statements. The DA is offering what she believes the evidence will show your lawyer is doing the same thing [sic]." Defendant disputed that. "No, he's not. He's not doing anything. He's not bringing any of the witnesses, he's not doing anything to subpoena the witnesses to come forward with the restored video[.]" The court responded, "Ma'am, we've been through this again and again." Defendant replied, "Yeah, and you're not doing nothing."
The court then found that defendant had absented herself by virtue of her inappropriate courtroom behavior. It told her she was welcome to rejoin the trial if she was willing to behave. Defendant responded, "I'm willing to behave, but you're not giving myself a defense." She continued, "I'm asking for 20 million once I get convicted worth of damages, once the restored video and witnesses. . . ." The court ordered defendant taken into lockup, and reiterated that it would be "happy to have [her] back" if she decided to behave.
Before the jury returned, defendant's counsel told the court that "maybe I have a doubt as to her competency at this time." The court responded that it "was interested in her competence when this case came to me just two days ago," because the May report stated that defendant continued to experience delusions of false imprisonment. The court noted that the May report found defendant competent "just a few scant months ago," and asked counsel if defendant continued to comply with her medication regime.
Counsel responded that he had asked defendant about her medication that morning, and she said she was taking it. He suggested that defendant might have meant she was taking her hormone therapy. Counsel stated that defendant was not cooperating with him, whether she was compliant with her medication or not. He continued, "I'm trying to protect her rights. I'm very disappointed she cannot be present, but it's also obvious that - - not obvious, but there's a very good chance that she's going to continue her disruption. . . . And I know the court has given her a lot of rope, but I just have to bring up her competency."
The court responded, "And as well you should, you're her counsel . . . . We have a report certifying her competent, and it's dated just from May. Fair to say, and I don't mean any disrespect to your client, she's been a difficult person. She - - I'm just laying plain what I have observed in the last two days that I [have] known her. She has this idea that she was raped, she's going to sue the county. The [May] report also mentions that she's going to sue them for 250 million. She may be delusional as regards that as the report find[s]. But in terms of competence she is a difficult person who has her views on certain matters and is refusing to respect the court, but I don't find her incompetent based on the latest competency report that I have before me that I can rely on." The court later reiterated, "she is an insistent person on this area that she is going to drive home whatever I may say, whatever you may say, whatever the evidence may say. I don't find that evidence necessarily incompetent, I find that she's just fixed on this idea and she wants to make sure that this becomes part of the trial notwithstanding the fact that I've instructed the defendant that it's not coming in."
Proceedings continued that afternoon in defendant's absence. The following morning, in defendant's presence, defense counsel told the court he was unsure if defendant had "a rational understanding" of the charges against her, "due to the fact if she knew the nature of these proceedings she would be compliant in court and not attempt to destroy the defense in this matter by . . . making denigrating remarks about me." He continued, "she really has not been assisting me in the defense. She again is very difficult to deal with. She goes through periods of, I think, delusions. I - - it's my feeling, judge, that she's not assisting me in conducting a defense."
The court responded, "I understand what you're saying, and I've looked at this carefully. Again, she was deemed . . . competent to stand trial . . . by report May 25th, 2018 a few months ago. My understanding is that she may be under some medication. And I have no indication that she's not taking her medication, doesn't appear to me that she's not able to understand the procedure or the process. She understands it, but she simply disagrees with it. She simply disagrees with certain facts, certain defense efforts, and that's how I take it." Defendant interjected, "Yeah."
The court continued, "And I've looked at [as] much case law as I can. I certainly don't want to go forward in a situation where someone should be declared incompetent. I'm not finding that. I note the one case, People v. Marks, 31 Cal.4th 197 indicated that once a defendant has been found to be competent to stand trial even bizarre statements and actions [are] not enough to require a further inquiry. So I find myself again in a situation where she may be uncooperative, she may be difficult, she may be in disagreement with what you as counsel have indicated or selected as the appropriate and most successful defense, she may disagree with that, but I don't find her incompetent. Nor do I find based on what I've seen so far that she is unable to understand the nature of the process and what she's facing."
B. Legal Framework
Both the due process clause of the Fourteenth Amendment and state statutory law prohibit the state from trying or convicting a criminal defendant while she is mentally incompetent. (People v. Mai (2013) 57 Cal.4th 986, 1032 (Mai); see Drope v. Missouri (1975) 420 U.S. 162, 181; §1367.) A defendant is incompetent if she lacks the present ability to consult with her attorney with a reasonable degree of rational understanding, or lacks a rational and factual understanding of the proceedings against her. (Mai, supra, 57 Cal.4th at p. 1032.) "Under both the federal Constitution and state law, the trial court must suspend criminal proceedings and conduct a competency hearing if presented with substantial evidence that the defendant is incompetent." (Ibid.) Substantial evidence is evidence that raises a reasonable doubt about the defendant's capacity to stand trial. (People v. Ramos (2004) 34 Cal.4th 494, 507 (Ramos).) Such evidence "may emanate from several sources, including the defendant's demeanor, irrational behavior, and prior mental evaluations." (People v. Rogers (2006) 39 Cal.4th 826, 847.)
To be entitled to a competency hearing, "a 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 [her] defense counsel." (Ramos, supra, 34 Cal.4th at p. 508.) Similarly, "statements of defense counsel that defendant is incapable of cooperating in [her] defense" are not sufficient to mandate a competency hearing. (People v. Welch (1999) 20 Cal.4th 701, 742 (Welch).) If a defendant previously has been found competent, the trial court may rely on that finding unless it is presented with a substantial change of circumstances or new evidence casting serious doubt on the validity of the previous finding. (People v. Rodas (2018) 6 Cal.5th 219, 231.) "The court's decision whether to grant a competency hearing is reviewed under an abuse of discretion standard." (Ramos, supra, 34 Cal.4th at p. 507.)
C. Analysis
Defendant contends the trial court abused its discretion in refusing to order a competency hearing because it was presented with substantial evidence of her incompetence. Defendant points to the February 2018 and May 2018 reports as evidence that her "mental condition fluctuated, and she was only able to maintain competency when she was medicated." She argues it "remained unclear whether she was still taking the anti-psychotic medication that was critical to her competency," and that her "irrational behavior during trial was strong evidence that, medicated or not, she had decompensated to the point of being unable to understand the proceedings or assist her attorney." We are not persuaded.
The trial court relied on the May report's finding that defendant was competent while on her medication, as well as its own extensive observations of her behavior. This was not an abuse of discretion. Although defense counsel suggested defendant may have misunderstood his question about whether she was taking her medication, and answered yes because she continued to take her hormone therapy, nothing in the record supports such a conclusion. The record consistently uses different terms for psychotropic "medication" and hormone "therapy," and there is no evidence that defendant would have conflated the two.
Moreover, during trial, defendant did not exhibit any delusions about "false imprisonment," which were the sort described in the May report. Rather, like the defendant in Welch, supra, 20 Cal.4th at p. 742, defendant disagreed with defense counsel's strategic decisions and expressed general distrust of the judicial system. Defendant was recalcitrant, but apparently understood the proceedings against her. She was able to relay the court's comments about the appeal process to her mother, and relay her mother's comments back to the court. She apparently understood the court's warnings about her behavior, telling the court, "Then I'm not participating." She demonstrated an understanding of the primary evidence against her—the video tapes—and evidently comprehended, and agreed with, the court's remarks that she understood but disagreed with the proceedings.
We note that defense counsel argued that defendant acted in self-defense after the deputies "bull-rushed" her, and cross-examined Hicks about the completeness and integrity of her videotape. These tactics are at least somewhat aligned with defendant's claims that the officers assaulted her and the videotape was, to quote the trial court, "monkeyed with."
Defendant argues that her refusal to wear civilian clothing and, "[m]ost notably," her refusal to accept the prosecutor's plea deal constituted further evidence of her incompetence. We reject these arguments. A trial court may not compel a defendant to stand trial while dressed in identifiable jail clothing (Estelle v. Williams (1976) 425 U.S. 501, 512), but a defendant may choose to do so "in the hope of eliciting sympathy from the jury." (Id. at p. 508.) Defendant's decision to wear her jail clothing is not evidence that she was incompetent. Nor is her rejection of a plea deal. A defendant has an absolute right to proceed to jury trial (U.S. Const., 6th & 14th Amends.;Cal. Const., art. I, § 16; People v. Hoyt (2020) 8 Cal.5th 892, 919), and defendant's decision to exercise that right even in the face of strong evidence against her is not indicative of incompetence.
Defendant also contends the trial court's reliance on People v. Marks (2003) 31 Cal.4th 197 (Marks) was "misplaced," because "Marks did not involve substantial evidence of changed circumstances after the competency finding." We disagree. In Marks, as here, the defendant "showed he was able to cooperate with counsel but sometimes refused to do so." (Marks, supra, 31 Cal.4th at p. 220.) The defendant in Marks engaged in outbursts that "did not comport with courtroom protocol," but nevertheless "did reflect his attempt to provide advice to counsel." (Ibid.) The same is true here. Defendant's outbursts communicated her views of the evidence and desire to present a self-defense theory. They did not evidence a change in circumstances from the May report. The trial court accordingly did not abuse its discretion in relying on the May report and declining to hold a competency hearing.
II. Right to Testify
A. Background
During the first discussion about defendant's competency, defense counsel informed the court that defendant wanted to testify. The court said, "If she does take the stand, I can imagine it will be a very difficult process where there may be anticipated objections if she launches into certain tangents about this belief that she was sexually assaulted and the videotapes were improperly edited. I will have to simply deal with those objections when and if they are raised and we can get through it." Counsel expressed concern that defendant was not competent to testify: "I'm sitting with an empty seat[, but] I have a person that is going to insist that she testify. You've seen her demeanor . . . ." The court clarified, "I'm not barring her from testifying, I'm simply saying it will be a difficult road [sic] to hoe." The court said it would research the issue and invited defense counsel to do the same so that they could revisit the issue the following day.
The following day, after defendant again told the court that she did not "want to be a part of" the trial and was excused from the courtroom, defense counsel asked the court, "How am I going to put her on the stand, judge. You tell me." He continued, "She wants to testify and the problem is that's going to be her theater, her chance to say what she wants. And everything she says is probably going to be nonsensical." The prosecutor interjected to inform the court that defendant had taken the stand in her concurrently pending case, and "when the judge told her she was not permitted to go into certain topics she stormed off the witness stand and ended up kicking and assaulted a deputy." The court said that it understood both counsel's concerns, but it did not rule at that time.
Later that afternoon, the court and counsel again discussed the issue of defendant's absence from trial and its impact on defendant's desire to testify. The court reiterated that defendant "said on the record I don't want to be here despite the warnings by the judge," and that it had found her voluntarily absent from the proceedings. It summarized defendant's misbehavior on the stand at her other trial, which defense counsel confirmed, and stated that it "anticipate[d] and not without some support that . . . we'll have a repeat of that situation and to no benefit to her." The court further stated it was "having real difficulty," because it wanted to protect defendant's right to testify while also ensuring that the proceedings not devolve into "a continuing loop" in which her misbehavior on the stand would result in a mistrial. The court also noted that "some of the other issues external to my decision include the fact that she was offered a misdemeanor with time served and she could have had her freedom two days ago. . . . And for whatever reason she declined that. So I wonder to what degree her delusions may be getting in the way of her exercising better judgment to regain her freedom."
The court continued, "Factoring all that together, I'm going to continue to find that she has absented herself from her trial and I am not going to bring her out tomorrow when we continue trial. . . . Will that interfere with her right to testify in this case, yes, but I don't see any other choice. And I want to lay that out." Defense counsel objected, arguing that defendant "should be given that opportunity [to testify] if she wants it." The court overruled the objection. It explained, "This is not a normal situation. Of the 17 years I've been on the bench I have never had this kind of a situation. And I'm simply going to continue with my rulings and continue the trial without her for everything I've placed on the record."
Defendant did not return to the courtroom for the remainder of the trial; the court told the jury that it had "extended to her an invitation should she want to rejoin us, she has declined that through the deputy." At the close of the prosecution's case, the defense rested without presenting any evidence.
B. Legal Framework
Defendant contends her due process rights were violated "because she was excluded from the courtroom and was thus unable to testify in her own defense."
The state and federal constitutions both guarantee a criminal defendant the right to be present at his or her trial. (People v. Espinoza (2016) 1 Cal.5th 61, 72.) "But the right is not an absolute one. [Citation.] It may be expressly or impliedly waived." (Ibid.) This has been true for more than a century. In 1912, the United States Supreme Court explained, "where the offense is not capital and the accused is not in custody, the prevailing rule has been, that if, after the trial has begun in his presence, [a defendant] voluntarily absents himself, this does not nullify what has been done or prevent the completion of the trial, but, on the contrary, operates as a waiver of his right to be present and leaves the court free to proceed with the trial in like manner and with like effect as if he were present." (Diaz v. United States (1912) 223 U.S. 442, 455.) This principle is also codified in state statute. (See § 1043, subd. (b).) Waiver of a defendant's right to be present may be implied where "evidence indicates the defendant has chosen to be absent voluntarily." (People v. Gutierrez (2003) 29 Cal.4th 1196, 1206.)
Trial courts "should take reasonable steps to ensure that being absent from trial is the defendant's choice." (People v. Gutierrez, supra, 29 Cal.4th at p. 1206.) In determining whether a defendant is absent voluntarily, a court must consider the totality of the circumstances. (Id. at p. 1205.) "The role of an appellate court in reviewing a finding of voluntary absence is a limited one. Review is restricted to determining whether the finding is supported by substantial evidence." (People v. Espinoza, supra, 1 Cal.5th at p. 74.)
A defendant who is voluntarily absented from the courtroom due to her disorderly or disruptive behavior may forfeit other constitutionally protected rights, including the right to testify. (People v. Johnson (2018) 6 Cal.5th 541, 569 (Johnson).) The rights are forfeited due to the defendant's conduct, not the action of the state. (People v. Hayes (1991) 229 Cal.App.3d 1226, 1233.) The defendant's conduct is sufficient to effectuate forfeiture of the right to testify; no personal or explicit waiver is required. (Id. at p. 1234.)
C. Analysis
Defendant contends she did not forfeit her right to testify because she "made a timely and adequate assertion of the right through her attorney, who clearly communicated it to the judge." She argues that the trial court should have made "further inquiry" into "whether she would be able to testify without undue disruption," and warned her that her verbal outbursts would result in the forfeiture of her ability to testify. These arguments are not persuasive.
As detailed above, defendant engaged in multiple courtroom outbursts. The trial court patiently and repeatedly explained to her that such outbursts would not be tolerated, but that she was welcome to return to the courtroom if she chose to behave. Defendant told the court several times that she did not want to participate in the trial. Indeed, when the court invited her to participate, she stated, "I would rather step out. I'm going to have more comments about what is taking place." She also responded, "Yeah, I don't want to be with you guys when you guys commit fraud" when the court asked her if she was "asking to absent [her]self from the trial."
By repeatedly asking defendant whether she wanted to rejoin the proceedings, and giving her the opportunity to do so, the trial court took reasonable steps to ensure that her absence was voluntary. Defendant expressly acknowledged, through her words and behavior, that she wanted to be absent. Substantial evidence supports the trial court's finding that her absence was voluntary.
As a consequence of her voluntary absence, defendant forfeited her right to testify. (Johnson, supra, 6 Cal.5th at p. 569.) The trial court was not required to obtain from defendant a waiver of her right to testify or offer her other accommodations. (People v. Hayes, supra, 229 Cal.App.3d at p. 1234.) Defendant attempts to distinguish Johnson on the ground that the defendant in that case threatened the judge and was violent toward his attorney. However, the court here observed that it had "never had this kind of a situation" during its nearly two decades on the bench. Defendant's verbal outbursts, while less dangerous than the defendant's outbursts in Johnson, were no less disruptive to the proceedings or disrespectful to the court and jury. The trial court did not err by declining to engage her in further colloquy about the consequences of her voluntary absence.
III. Amendment of Information
A. Background
Bermudez was the only witness at defendant's preliminary hearing. She testified that she, Pangilinan, and two other deputies were involved in an altercation with defendant concerning defendant's property bag. Bermudez further testified that she and Pangilinan had their hands on defendant's arms when Hicks "directed us to take her to the ground because she was continuing to fight." Defendant "kicked, continued to grab with her hands, tried to scratch us. She threatened to bite us." In particular, Bermudez testified, defendant tried to bite Pangilinan and moved her entire body as the deputies sought to control her. Bermudez testified about the scratch she sustained and the treatment she received for it.
At the conclusion of the preliminary hearing, the court held defendant to answer to the charge of battery with injury on a peace officer. The information named Bermudez as the only victim of that offense. Pangilinan and another deputy involved in the incident, Aguilar, were named as victims in the charge for resisting an executive officer."
During a pretrial hearing, the prosecutor told the court that she had learned an additional deputy had been placed on light duty after the incident with defendant, and had apprised defense counsel of that information in discovery. The prosecutor further stated that if the testimony at trial established that the then-unnamed deputy sustained an injury during the altercation, she would seek to amend the information to add him as a victim of the battery with injury count. The court said, "On notice [defense counsel]?" Defense counsel said he was and raised no objection to the potential amendment.
As detailed above, deputy Pangilinan testified at trial that he sustained "swollen-ness" to his knee during the incident with defendant and was ordered to take two days off from work as a result. In light of that testimony, and in accordance with her earlier representation, the prosecutor asked the court to amend the information by interlineation to list Pangilinan as an additional victim on the battery count. Defense counsel did not object. The court subsequently instructed the jury that it could find defendant guilty of battery with injury on a peace officer if it found that she injured either Bermudez or Pangilinan. Defendant now contends the amendment was improper, because "[t]here had been no mention of injury to Deputy Pangilinan at [the] preliminary hearing."
B. Legal Framework
"Due process requires that 'an accused be advised of the charges against him so that he has a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial.' [Citation.]" (People v. Graff (2009) 170 Cal.App.4th 345, 360. "Thus, it is the rule that 'a defendant may not be prosecuted for an offense not shown by the evidence at the preliminary hearing or arising out of the transaction upon which the commitment was based.'" (Ibid; see also § 1009.) "The court may allow amendment of the accusatory pleading to correct or make more specific the factual allegations of the offense charged at any stage of the proceeding, up to and including the close of trial, if there would be no prejudice to the defendant." (People v. Graff, supra, 170 Cal.App.4th at p. 361.)
We review the trial court's decision to permit amendment of an information for abuse of discretion. (People v. Arevalo-Iraheta (2011) 193 Cal.App.4th 1574, 1581.)
C. Analysis
Defendant contends the court abused its discretion by allowing the prosecutor to amend the information because no evidence about injury to Pangilinan was introduced at her preliminary hearing. She further argues the error was prejudicial because the improper amendment allowed the jury to convict her on the legally invalid basis of injury to Pangilinan, and there is no way to determine whether the jury convicted her on that basis or on the legally valid basis of injury to Bermudez. We agree with respondent that these arguments are forfeited.
To preserve an argument about the amendment of an information, a defendant must object to the amendment. (People v. Fernandez (2013) 216 Cal.App.4th 540, 555.) Defendant did not do so, either when the prosecutor said before trial that she might request an amendment or when she actually made the request at the end of trial. Her claim of prejudicial error accordingly is forfeited.
Defendant alternatively contends her counsel was ineffective for failing to object to the amendment of the information. To prevail on a claim of ineffective assistance of counsel, a defendant must establish both that counsel's performance was deficient and that she was prejudiced by the deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) To establish deficient performance, a defendant must show that counsel's representation was objectively unreasonable "under prevailing professional norms." (Id. at p. 688.) To establish she was prejudiced, a defendant must show there is "a reasonable probability"—meaning "a probability sufficient to undermine confidence in the outcome"—"that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at p. 694.) On review of a claim of ineffective assistance of counsel, we presume that "counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy." (People v. Carter (2003) 30 Cal.4th 1166, 1211.)
Defendant has not overcome that presumption. If the record "'sheds no light on why counsel acted or failed to act in the manner challenged,' an appellate claim of ineffective assistance of counsel must be rejected 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.' [Citations.]" (People v. Ledesma (2006) 39 Cal.4th 641, 746.) Here, the record sheds no light on why counsel did not object to the proposed amendment. It does show, however, that counsel had notice of and discovery pertaining to Pangilinan's injury. It also shows that Pangilinan's injury arose out of the same transaction as Bermudez's. Moreover, testimony at the preliminary hearing established that defendant kicked, grabbed at, and attempted to bite Pangilinan. We accordingly reject defendant's claim that defense counsel performed deficiently.
IV. Sufficiency of the Evidence
Defendant contends the evidence was insufficient to establish that Bermudez or Pangilinan suffered an "injury" within the meaning of section 243. We disagree.
A. Legal Framework
To obtain a conviction for battery of a peace officer with injury, the prosecutor must prove that the victim was a peace officer engaged in the performance of his or her duties, that the defendant knew or reasonably should have known that the victim was a peace officer engaged in the performance of his or her duties, that the defendant willfully touched the victim in a harmful or offensive manner, and that the victim suffered an injury as a result of the touching. (See § 243, subd. (c)(2); In re D.W. (2015) 236 Cal.App.4th 313, 323-324.) The injury need not be serious. (In re D.W., supra, 236 Cal.App.4th at p. 324.) However, it must be a "physical injury which requires professional medical treatment." (§ 243, subd. (f)(5).) We use the term "injury" to denote an injury as defined by section 243, subdivision (f)(5).
"It is the nature, extent, and seriousness of the injury—not the inclination or disinclination of the victim to seek medical treatment—which is determinative." (People v. Longoria (1995) 34 Cal.App.4th 12, 17.) "A peace officer who obtains 'medical treatment' when none is required has not sustained an 'injury' within the meaning of section 243, subdivision (c). And a peace officer who does not obtain 'medical treatment' when such treatment is required, has sustained an 'injury'. . . . The test is objective and factual." (Ibid., footnote omitted.) The medical treatment must be causally related to the injury sustained by the victim. (In re D.W., supra, 236 Cal.App.4th at p. 325.)
When considering a claim of insufficient evidence, we review the entirety of the record to determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Hoyt (2020) 8 Cal.5th 892, 949-950.) The evidence in the record must be substantial, that is, reasonable in nature, credible, and of solid value. (Id. at p. 950.)
B. Analysis
1. Bermudez
Defendant contends the evidence was insufficient for the jury to find that she "injured" Bermudez within the meaning of section 243, because no rational trier of fact could find that Bermudez's "barely visible scratch required professional medical treatment."
The evidence was undisputed that Bermudez suffered a two-inch scratch on her arm during the altercation with defendant. The wound broke Bermudez's skin, made her bleed, and caused her pain. She sought medical treatment to clean the wound and ensure that she had not contracted a communicable disease. Bermudez returned to the doctor several more times over the course of a year for additional bloodwork and monitoring. This evidence is substantial and supports a finding of "injury."
The initial doctor's visit and all of the follow-up testing were necessitated by the physical wound to Bermudez's skin. That makes this case distinguishable from In re D.W., supra, on which defendant relies. There, a juvenile, D.W., spit in a detention officer's eye. (In re D.W., supra, 236 Cal.App.4th at p. 319.) The officer, Dutra, testified that his eye was irritated, but he was not in any pain. (Ibid.) Dutra "was sent to the occupational hospital," and was tested for communicable diseases "because D.W.'s bodily fluid penetrated his eye." (Id. at pp. 319-320.) The medical exam revealed no physical damage to Dutra's eye. (Id. at p. 320.) Dutra "had to do followup blood tests for several weeks" to ensure he did not develop a communicable disease. (Id. at pp. 319-320.) However, the court concluded that he did not suffer an "injury." The court explained: "there is evidence that Dutra underwent a series of tests over a period of months to ensure that D.W. had not infected him with a communicable disease. Assuming those measures can be characterized as treatment, and that this treatment was required, it was not treatment for an actual physical injury. In other words, at most, there may be substantial evidence that Dutra required prophylactic professional treatment to determine if D.W.'s spittle had infected Dutra with a communicable disease. However, that treatment was independent from, and not causally related to, any actual injury Dutra received. Thus, the medical monitoring that Dutra received was not for an actual physical injury." (Id. at p. 325.)
Unlike Dutra, Bermudez undisputedly suffered an actual physical injury. Her skin was broken open and she bled. The doctor cleaned the wound and performed numerous tests for communicable diseases. The cleaning and disease testing were not "independent from" the physical injury; they stemmed directly from it. This case thus is more analogous to People v. Lara (1994) 30 Cal.App.4th 658, 667 in which an officer, Mank, "bruised both his knees and received numerous cuts and abrasions on his hands" during an altercation with the defendant. Mank went to the emergency room, where his wounds were examined and cleaned. (Ibid.) The court rejected defendant's argument that Mank was not "injured" within the meaning of section 243. (Id. at pp. 667-668.) A rational jury could have done the same here.
2. Pangilinan
Pangilinan testified that he noticed his knee was sore within minutes of the altercation with defendant. He experienced significant pain, between seven and eight on a ten- point scale, when he turned his knee. He sought medical attention. The doctor who examined Pangilinan gave him an ice pack and pain medication, diagnosed him with "swollen-ness," and ordered him to take two days off work. A rational jury could conclude that a swollen, sore knee that hurts when it is moved requires medical attention.
We reject defendant's contention that this case is analogous to In re Michael P. (1996) 50 Cal.App.4th 1525. There, juvenile Michael kicked officer Paez in the chest and chin. (In re Michael P., supra, 50 Cal.App.4th at p. 1528.) Paez testified "he was sore in the chest and chin," but was not bruised. He did not report his injuries or seek medical attention. (Ibid.) The court found insufficient evidence of a section 243 "injury" because Paez merely testified that he suffered soreness. "Paez did not further describe how hard he was kicked or his injury so as to support a finding the soreness was the sort of injury requiring professional medical treatment. . . . [His] failure to further describe his injuries is fatal to respondent's position the evidence was indeed sufficient to support the juvenile court's finding of battery with injury on a peace officer." (Id. at p. 1529.) Here, although Pangilinan did not know exactly what caused his knee pain, his testimony tied the pain to the altercation and described his condition and the treatment in detail. A rational jury could conclude Pangilinan was "injured." V. Assessments, Fines, and Fees
At sentencing, the trial court imposed a restitution fine of $300 (§ 1202.4, subd. (b)), a criminal conviction facility assessment of $30 (Gov. Code, § 70373), and a court security fee of $40 (§ 1465.8, subd. (a)(1)). Defense counsel did not object. Relying on Dueñas, supra, 30 Cal.App.5th 1157, which was decided while her appeal was pending, defendant now contends the assessments, fines, and fees should be vacated until the trial court holds a hearing to determine whether she has the ability to pay them.
Because defendant failed to object to any fines or fees at sentencing, she has forfeited this challenge. (See People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153 (Frandsen); People v. Avila (2009) 46 Cal.4th 680, 729.) We agree with our sister court in Frandsen that the holding in Dueñas was foreseeable and therefore defendant was required to raise an objection to the imposition of fines and fees, and demonstrate an inability to pay, at the time of her sentencing. (Frandsen, supra, 33 Cal.App.5th at pp. 1154-1155.) Citing People v. Scott (1994) 9 Cal.4th 331, 354, Defendant contends no objection was necessary because the fees were legally unauthorized. Imposition of the fines and fees at issue here was not unauthorized in the sense discussed in Scott. To the extent Dueñas was correctly decided, it does not hold that fines and fees can never be imposed, only that the defendant's ability to pay must be considered as a predicate. (Dueñas, supra, 30 Cal.App.5th at p. 1172.) We accordingly reject defendant's contention.
As the court that decided Dueñas has noted, our Supreme Court is poised to resolve a split in authority regarding whether Dueñas was correctly decided, having granted review in People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, S257844, on the following issues: "'Must a court consider a defendant's ability to pay before imposing or executing fines, fees, and assessments? If so, which party bears the burden of proof regarding defendant's inability to pay?'" (People v. Belloso (2019) 42 Cal.App.5th 647, 649 & fn. 3.)
DISPOSITION
The judgment of the trial court is affirmed.
COLLINS, J. We concur: MANELLA, P. J. CURREY, J.