Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA346234, Charlaine S. Olmedo, Judge.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon, Supervising Deputy Attorney General, Joseph P. Lee, Deputy Attorney General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
A jury convicted defendant and appellant Preston Baldwin of custodial possession of a weapon (Pen. Code, § 4502, subd. (a) ) and found true the allegation that defendant suffered seven prior convictions within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)). The trial court sentenced defendant to 25 years to life in state prison.
All statutory citations are to the Penal Code unless otherwise noted.
On appeal, defendant contends that the trial court erred when it granted his request to be absent for his trial and when it failed to suspend proceedings and conduct an inquiry into his competence to proceed with his trial. We affirm.
BACKGROUND
Los Angeles County Sheriff’s Department deputies search inmates and their property before the inmates appear in court. On August 22, 2008, Deputy Sean Phaneuf searched defendant and his property in the 14th floor lockup or holding area at the Los Angeles County Superior Court building. From defendant’s Bible, Deputy Phaneuf recovered a razor blade that had been broken out of a “Bic type razor that the inmates are issued or purchased at the store.” Deputy Phaneuf informed Deputy James Mays about the razor blade. Deputy Mays, using a handheld metal detector, conducted an additional search of defendant’s property and found a second razor blade in defendant’s Bible and a third razor blade in an empty envelope. Deputy Mays testified that, in his experience, a disassembled razor blade can be used as a “slashing weapon” and that a razor blade can be used as a weapon either by attaching it to a handle or, without a handle, by wrapping something protective around the blade, such as paper.
DISCUSSION
I. The Trial Court Properly Granted Defendant’s Request To Be Absent From His Trial
Defendant contends that the trial court violated his state and federal constitutional rights and state statutory rights to be present at trial when it granted his request to be absent from his trial. Because defendant expressly waived his right to be present at his trial, the trial court did not err.
A. Background
On November 13, 2009, the parties announced they were ready for trial and the trial court set the matter for a jury trial on November 20, 2009. On November 20, 2009, defendant expressed dissatisfaction with his attorney. The trial court construed defendant’s complaints as a motion for substitute counsel under People v. Marsden (1970) 2 Cal.3d 118. The trial court conducted a Marsden hearing out of the presence of the prosecutor and denied defendant’s motion.
When the prosecutor returned to the courtroom following the Marsden hearing, the trial court stated that defendant had indicated that he wanted to voluntarily absent himself from “these proceedings.” The trial court informed defendant of his right to be present during his jury trial. The trial court stated, “We are not going to chain you to a chair to be here if you don’t want to be here, but I would assume you have a vested interest in wanting to see this done. But if you want to voluntarily absent yourself from these proceedings, that is your choice. [¶] I do have a speaker system. So if you wanted-” Defendant interjected, “Send me back upstairs like they did on the first trial.”
The trial court then informed defendant that he could sit in the “lockup” if he wanted and the trial court would ensure that he was able to hear the proceedings. The trial court emphasized that the trial would proceed even if defendant did not participate. The trial court informed defendant that it was going to start the jury trial and call for jurors.
The trial court stated to defendant, “I would assume that you are going to be here through these proceedings.” Defendant responded, “No, ma’am. I don’t want to be here. You can put me back up in the holding cell and you can go ahead and continue on with it, address whatever you are going to address. [¶] And I mean I am not crazy or nothing like that but I do not want to be railroaded again by the same attorney that have not done nothing because we can’t do two things at once. [¶] But you got a murder trial and then you got this trial here so if you-I mean how can you investigate and work on both cases?”
The trial court advised defendant that his right to a jury trial included the right to confront and cross-examine witnesses “through your attorney in your presence.” The trial court stated that if defendant wanted to absent himself, that was his choice. Defendant then raised the issue of representing himself and defense counsel expressed a doubt as to defendant’s competency. The trial court noted that defendant had “already been through the procedure” and had been found competent.
The trial court stated that it had heard nothing that indicated that defendant did not understand the nature of the proceedings. The trial court observed that defendant “certainly” understood the proceedings and stated that “[t]he question is your ability to assist in your defense and it seems to me the only question about that, you are not getting along with your attorney and you are not impressed with your attorney.” Defendant responded, “Well, you know something? When your attorney tells you that ‘I am working for the court system and not working for you, ’ it is a problem.... [¶] I mean I could have had an attorney on both cases, but for some reason, when they try to get in contact with her, it is bad news. I mean everything I have tried, I mean it seems like-” The trial court found that there was no basis to declare a doubt as to defendant’s competency.
The trial court stated that it was going to “call the jurors up here” and asked defendant if he wanted to be present. Defendant responded, “No. My desire is to be gone.” After further discussion not relevant here, the trial court stated, “We will take you into lockup for now. If you choose not to come back out when we start the jury selection, I want it clear that that was your decision. If you change your mind, let the bailiffs know and I will bring you back out.” Defendant responded that he would like to go back upstairs. Defendant added, “Like I said, I am in my right state of mind and I do not want [defense counsel] to represent me at all, not in this case or any other case, and I feel that if she represents anybody in any cases, it is not right. But I don’t want to be in court. And I let her go ahead and give me the 25 to life like she sit back and claimed upstairs. [¶] And that is all I can say.” The trial court stated that if defendant changed his mind about returning to court, defendant should so inform the trial court’s bailiff. Defendant responded that he would not change his mind. Thereafter, apparently in defendant’s absence, a panel of 55 prospective jurors was called and voir dire commenced.
When the proceedings resumed two days later on November 23, 2009, the trial court informed defense counsel that after defendant arrived at the courthouse that morning defendant informed the trial court’s bailiff that he did not want to be present at the trial. The trial court stated that it had had defendant brought to the lockup just outside the courtroom so that defense counsel could more easily speak with defendant. The trial court asked defense counsel if it was still defendant’s desire to not be present during trial. Defense counsel stated that she had verified that defendant still did not want to be present. Voir dire continued and a jury was impaneled in defendant’s absence. At the start of each day of the remainder of defendant’s trial, including the day of defendant’s sentencing, the trial court confirmed with defense counsel that she had spoken with defendant and that it was still defendant’s desire to absent himself from the trial.
Evidence was presented on defendant’s alleged substantive offense and prior conviction allegations on November 24 and 25, 2009. Defendant was sentenced on December 9, 2009.
B. Standard of Review
“‘An appellate court applies the independent or de novo standard of review to a trial court’s exclusion of a criminal defendant from trial, either in whole or in part, insofar as the trial court’s decision entails a measurement of the facts against the law.’ [Citation.]” (People v. Gutierrez (2003) 29 Cal.4th 1196, 1202.)
C. Application of Relevant Principles
“A criminal defendant’s right to be present at trial is protected under both the federal and state Constitutions. (U.S. Const., 6th & 14th Amends.; United States v. Gagnon (1985) 470 U.S. 522, 526 [105 S.Ct. 1482, 1484, 84 L.Ed.2d 486]; Cal. Const., art. I, § 15; People v. Waidla [(2000)] 22 Cal.4th [690, ] 741.) ‘The constitutional right to presence is rooted to a large extent in the Confrontation Clause of the Sixth Amendment, [citation], but we have recognized that this right is protected by the Due Process Clause in some situations where the defendant is not actually confronting witnesses or evidence against him.’ (United States v. Gagnon, supra, 470 U.S. at p. 526 [105 S.Ct. at p. 1484].) Our state Constitution guarantees that ‘[t]he defendant in a criminal cause has the right... to be personally present with counsel, and to be confronted with the witnesses against the defendant.’ (Cal. Const., art. I, § 15.)” (People v. Gutierrez, supra, 29 Cal.4th at p. 1202.)
“Sections 977 and 1043 implement the state constitutional protection. [Citations.]” (People v. Gutierrez, supra, 29 Cal.4th at p. 1202.) Section 977, subdivision (b)(1) requires a defendant to be present for five fundamental proceedings-the arraignment, the taking of a plea, the preliminary hearing, the presentation of evidence before the trier of fact, and the imposition of sentence-and entitles the defendant to be present for the remaining proceedings. (People v. Gutierrez, supra, 29 Cal.4th at p. 1203.) A defendant cannot waive his presence at the five fundamental proceedings. (Ibid.) Section 1043, subdivision (a) provides that a defendant in a felony case shall be personally present at trial except as otherwise provided in that section.
Section 977, subdivision (b)(1), provides, in pertinent part: “In all cases in which a felony is charged, the accused shall be present at the arraignment, at the time of plea, during the preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at the time of the imposition of sentence. The accused shall be personally present at all other proceedings unless he or she shall, with leave of court, execute in open court, a written waiver of his or her right to be personally present, as provided by paragraph (2)....”
“A defendant’s right to presence, however, is not absolute.” (People v. Gutierrez, supra, 29 Cal.4th at p. 1202.) With leave of court, a defendant may waive his presence at certain proceedings upon execution of a written waiver. (§ 977, subd. (b)(1) & (2); People v. Ruiz (2001) 92 Cal.App.4th 162, 165, fn. 3 [“Under both federal and state constitutional law, a defendant may validly waive presence at critical stages of the trial, ” citing People v. Price (1991) 1 Cal.4th 324, 405].) Moreover, a defendant’s absence “in a felony case after the trial has commenced in his presence shall not prevent continuing the trial to, and including, the return of the verdict in... [a]ny prosecution for an offense which is not punishable by death in which the defendant is voluntarily absent.” (§ 1043, subd. (b)(2).) Under section 1043, subdivision (b)(2), a custodial defendant orally may waive his right to presence. (See People v. Gutierrez, supra, 29 Cal.4th at p. 1206.) The presence requirement in section 977, subdivision (b)(1) “does not preclude a defendant from being ‘voluntarily absent’ during the taking of evidence under section 1043, subdivision (b)(2).” (People v. Gutierrez, supra, 29 Cal.4th at p. 1203.) Once “a trial has commenced in a defendant’s presence, section 1043 applies.” (Ibid.; see also id. at p. 1204 [if a defendant “was present when the trial began, section 1043, subdivision (b)(2) governs, notwithstanding section 977, subdivision (b)(1)’s presence requirement”].)
Section 977, subdivision (b)(2) provides, “The accused may execute a written waiver of his or her right to be personally present, approved by his or her counsel, and the waiver shall be filed with the court. However, the court may specifically direct the defendant to be personally present at any particular proceeding or portion thereof.” The subdivision then sets forth an example of the required waiver.
A trial “commences” for purposes of section 1043 if “the defendant is physically present in the courtroom where the trial is to be held, understands that the proceedings against him are underway, confronts the judge and voluntarily says he does not desire to participate any further in those proceedings.” (People v. Lewis (1983) 144 Cal.App.3d 267, 279; People v. Ruiz, supra, 92 Cal.App.4th at pp. 166-167, 169 [applying the Lewis test to find that trial commenced under section 1043, subdivision (b)(2) for a defendant who absented himself before jury selection].) Here, defendant was physically present in the courtroom where his trial was to be held, he understood that the proceedings against him were underway, and he confronted the judge and voluntarily stated that he did not desire to be present for the proceedings. Contrary to defendant’s argument on appeal, the record demonstrates that defendant was fully aware of his right to be present at trial, that he voluntarily waived that right, and that he was competent to waive his right. Accordingly, under People v. Lewis, supra, 144 Cal.App.3d at pages 278-279, defendant’s trial had “commenced” in defendant’s presence within the meaning of section 1043, subdivision (b)(2); defendant voluntarily waived his presence at trial; and the trial court did not violate defendant’s state or federal constitutional rights or state statutory rights in proceeding with the trial in defendant’s absence.
We address defendant’s competency claim post.
Defendant contends that we should follow People v. Molina (1976) 55 Cal.App.3d 173 or People v. Granderson (1998) 67 Cal.App.4th 703 to hold that trial commences within the meaning of section 1043 no earlier than the start of jury voir dire. In People v. Molina, the court held that trial commences as provided in Evidence Code section 12, subdivision (b)(1) and when jeopardy attaches. Under Evidence Code section 12, subdivision (b)(1), “A trial is commenced when the first witness is sworn or the first exhibit is admitted into evidence and is terminated when the issue upon which such evidence is received is submitted to the trier of fact.” Jeopardy attaches when the “jury is duly impanelled [sic] and sworn to try the cause. [Citations.]” (People v. Molina, supra, 55 Cal.App.3d at p. 177.) The court in People v. Lewis rejected the holding in People v. Molina on the ground that the policy goals underlying section 1043-(1) insuring that a defendant, personally present in court, has “voluntarily and knowingly waived his right to be present for his trial” and (2) to avoid a defendant’s claims that he was absent from trial “because he could not find the courtroom or thought the trial started on a different day” or some similar excuse-are different than the policy goals underlying Evidence Code section 12, subdivision (b)(1) or the attachment of jeopardy. (People v. Lewis, supra, 144 Cal.App.3d at pp. 278-279.) We agree with the People v. Lewis court’s reasoning in rejecting the holding in People v. Molina.
The court in People v. Granderson also rejected the holding in People v. Molina, holding instead that “[a]s a matter of constitutional law, common understanding, and common sense, ‘trial’ in a criminal case includes the critical stage of jury selection....” (People v. Granderson, supra, 67 Cal.App.4th at p. 707.) Thus, the court held, “in the ordinary sense, a criminal jury ‘trial’ has ‘commenced’ at least from the time that impaneling the jury begins, regardless of when jeopardy attaches.” (Id. at p. 708.) Contrary to defendant’s suggestion, the court in People v. Granderson did not hold that a criminal trial commences at the time that jury selection begins. Instead, the court held that a trial includes jury selection and that a trial commences “at least from the time that impaneling the jury begins.” (Id. at pp. 707-708, italics added.) Because the defendant in People v. Granderson absented himself after jury selection began, the court did not reach the question presented in this case-whether trial has commenced within the meaning of section 1043 for a defendant who absents himself when jury selection is about to begin.
II. The Trial Court Was Not Required To Hold A Competency Hearing
Defendant contends that the trial court erred in failing to hold a competency hearing after his defense counsel declared a doubt about his competence. We disagree.
Section 1368, subdivision (b) provides, in pertinent part, “If counsel informs the court that he or she believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendant’s mental competence is to be determined in a hearing which is held pursuant to Sections 1368.1 and 1369.”
A. Background
During its discussion with defendant concerning defendant’s desire to be absent from his trial the trial court stated to defendant, “I would assume that you are going to be here through these proceedings.” Defendant responded, “No, ma’am. I don’t want to be here. You can put me back up in the holding cell and you can go ahead and continue on with it, address whatever you are going to address. [¶] And I mean I am not crazy or nothing like that but I do not want to be railroaded again by the same attorney that have not done nothing because we can’t do two things at once. [¶] But you got a murder trial and then you got this trial here so if you-I mean how can you investigate and work on both cases?”
Defendant raised the issue of representing himself and defense counsel expressed a doubt as to defendant’s competency. The trial court noted that defendant had “already been through the procedure” and had been found competent. Defense counsel stated that she had declared a doubt as to defendant’s competency in connection with sentencing in another case and that the trial court had found defendant competent.
Defendant stated, “Your Honor, she is just covering up her tracks. That is all. That is all she is doing. I have seen a psychiatrist even before when I was in Division 35.” The trial court stated that it had not heard anything that indicated that defendant did not understand the nature of the proceedings. The trial court observed that defendant “certainly” understood what was “going on.” Defendant stated, “I understand what is going on.”
The trial court stated, “The question is your ability to assist in your defense and it seems to me the only question about that, you are not getting along with your attorney and you are not impressed with your attorney.” Defendant responded, “Well, you know something? When your attorney tells you that ‘I am working for the court system and not working for you, ’ it is a problem.” Defendant continued, “I mean I could have had an attorney on both cases, but for some reason, when they try to get in contact with her, it is bad news. I mean everything I have tried, I mean it seems like-” The trial court interjected, “Okay. I am going to go ahead and stop you there. I don’t find a basis at this point to declare a doubt for the reasons that I have stated. If that changes, I will let you know and we will proceed. [¶] Obviously I have had a limited contact with [defendant] at this point but I don’t see anything in his record that would necessarily indicate that nor have I heard anything today.”
B. Standard of Review
“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 (2006) 39 Cal.4th 826, 847.) We review a trial court’s decision whether to grant a competency hearing for an abuse of discretion. (People v. Ramos (2004) 34 Cal.4th 494, 507.)
C. Application of Relevant Principles
“A person cannot be tried or adjudged to punishment while mentally incompetent. (§ 1367, subd. (a).) A defendant is mentally incompetent if, as a result of a mental disorder or developmental disability, he or she is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner. (Ibid.) When the accused presents substantial evidence of incompetence, due process requires that the trial court conduct a full competency hearing. (People v. Stanley (1995) 10 Cal.4th 764, 804 [42 Cal.Rptr.2d 543, 897 P.2d 481]; Pate v. Robinson (1966) 383 U.S. 375, 377 [86 S.Ct. 836, 837-838, 15 L.Ed.2d 815].) ‘Evidence is “substantial” if it raises a reasonable doubt about the defendant’s competence to stand trial.’ (People v. Danielson (1992) 3 Cal.4th 691, 726 [13 Cal.Rptr.2d 1, 838 P.2d 729], overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13 [108 Cal.Rptr.2d 409, 25 P.3d 618].)” (People v. Lawley (2002) 27 Cal.4th 102, 131.)
Defendant contends that his “bizarre” behavior at trial was substantial evidence of incompetence. Defendant finds such alleged bizarre behavior in his desire to absent himself from trial and in his responses to the trial court during the discussion concerning his request to be absent from trial. The record clearly reflects that defendant’s desire to be absent from trial was based on his dissatisfaction with defense counsel’s performance. Defendant expressed that desire to the trial court rationally. Defendant stated that he believed that he had been “railroaded” by defense counsel in a prior case, that defense counsel had insufficient time to investigate his case, and that defense counsel was not motivated to help him. The trial court had the opportunity to observe defendant as defendant stated his reasons for desiring to be absent from trial. There is no indication in the record that defendant’s desire not to be present at trial manifested a mental disorder or developmental disability.
Defendant asserts that his willingness to “forego his presence for the entirety of trial, regardless of the reason, suggests a level of impaired judgment and extreme behavior inconsistent with the ability to rationally assist in his own defense.” Defendant’s desire to absent himself from trial may have been unwise, but it did not raise a reasonable doubt about defendant’s competence to stand trial-that is, a reasonable doubt about his ability to understand the nature of the criminal proceedings or to assist defense counsel in the conduct of his defense in a rational manner. (§ 1367, subd. (a); People v. Lawley, supra, 27 Cal.4th at p. 131.) Accordingly, the trial court did not abuse its discretion in deciding not to hold a competency hearing. (People v. Ramos, supra, 34 Cal.4th at p. 507.)
DISPOSITION
The judgment is affirmed.
We concur: TURNER, P. J., ARMSTRONG, J.