Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SCD170512, Kenneth K. So, Judge.
IRION, J.
A trial court convicted Brent Clark of kidnapping for robbery or rape (Pen. Code, § 209, subd. (b)(1)), forcible oral copulation (§ 288a, subd. (c)(2)), sexual battery by restraint (§ 243.4, subd. (a)), robbery (§ 211), and burglary (§ 459). The court sentenced Clark to 29 years to life in prison.
All further statutory references are to the Penal Code unless otherwise specified.
Clark appeals, contending that his convictions must be reversed because the trial court erred by: (i) failing to sua sponte conduct a fifth hearing regarding his competency to stand trial when it was apparent (Clark contends) that he was not competent; and (ii) granting Clark's request to represent himself at trial despite his incompetence. We conclude that Clark's contentions are without merit.
At trial, Clark stipulated to the admission of the transcript of the preliminary hearing as well as to the admission of relevant police reports and a videotape of his post arrest interview with police. We rely on these materials for our narration of the facts.
On October 16, 2002, Brenda D. was living with four roommates in a single-family residence in North Park. Clark knocked on the door to the home asking to see "Kim," one of the roommates, and claimed that Kim had a book for him. Brenda closed the door and searched inside the house for Kim's cell phone number to verify Clark's claim. As she did so, she suddenly encountered Clark in the residence. Clark ripped off all of Brenda's clothing, put his hands around her neck and forced her to commit oral copulation on him. Clark then told Brenda to call out to her roommates if she wanted to live. When the roommates did not respond to Brenda's calls, Clark dragged her out of the home, grabbing the car keys of one of Brenda's roommates as he left. When Clark discovered that the keys he had taken corresponded to a car that was blocked in the driveway, he led Brenda across the street and told her to go into an alley. Brenda escaped Clark's grasp and ran away from him.
Responding to Brenda's roommates' 911 calls, police soon arrived and found Clark chasing Brenda, who was naked. Officers detained Clark and, after witnesses identified him as Brenda's assailant, arrested him. In a postarrest interview with police, Clark admitted that he had committed the offense. He commented that he had previously committed rapes and was a predator who needed to be in jail.
PROCEDURAL HISTORY
Soon after Clark was charged, his appointed attorney filed a motion seeking to have Clark evaluated to determine if he was mentally competent to stand trial. The trial court suspended the proceedings and ordered an examination of Clark. (§ 1368, subd. (b) [requiring the court to suspend criminal proceedings and ascertain the defendant's competence to stand trial "[i]f counsel informs the court that he or she believes the defendant is or may be mentally incompetent"].) Clark was subsequently evaluated and determined to be competent to stand trial by a court-appointed psychiatrist, Dr. Carroll. Based on the psychiatrist's report, the trial court found Clark competent to stand trial and reinstated the proceedings against him.
On November 25, 2002, Clark's counsel, Michael Butler, stated that he had discussed Clark's competency with Dr. Carroll, and Dr. Carroll desired to "see [Clark] again." The trial court announced that "[b]ased on our discussion in chambers and the court's review of the previous information, the court has a doubt as to the mental competency of the defendant" and, again, suspended criminal proceedings. (See § 1368, subd. (a).) The court ordered a second competency examination at which Clark was found not mentally competent to stand trial. At a hearing to consider the new findings, the prosecution stipulated to the admission of the psychiatrist's report and, based on the report, the court found Clark "not mentally competent" and committed him to Patton State Hospital (Patton) for a term of three years.
On March 14, 2003, the doctors at Patton informed the court that Clark had regained competency. (See § 1372, subd. (a)(1) [requiring that when a medical director of a state hospital to which a defendant is committed "determines that the defendant has regained mental competence, the director shall immediately certify that fact to the court"].) Clark's counsel did not challenge the doctors' conclusion, and declined the court's offer to order another evaluation, agreeing that Clark "seems to be more stable." The court then found Clark competent to stand trial and reinstated the proceedings.
On June 4, 2003, Clark's counsel returned to court, stating that he believed Clark had stopped taking his medication, was "really in bad shape" and required another competency evaluation. The court again suspended proceedings and ordered a competency examination. Clark was evaluated by a court-appointed psychiatrist and determined to be incompetent to stand trial; the court, on July 2, found Clark incompetent and ordered him recommitted to Patton.
On December 2, 2003, the doctors at Patton certified that Clark was competent to stand trial, and Clark was returned to superior court. In a report, the Patton doctors informed the court that Clark was "malinger[ing]," that "[s]uch malingered behavior is . . . better dealt with in a jail setting," and that any genuine indications of mental illness were "well controlled through the use of medication at this time." At a subsequent hearing on January 7, 2004, the defense did not contest the Patton doctors' finding of competency and, based on the report, the trial court found Clark to be competent and, once again, reinstated the proceedings.
In a subsequent hearing, Clark was arraigned on an amended information. Clark pleaded not guilty and not guilty by reason of insanity to the amended information. The court appointed two psychiatrists to examine Clark for purposes of his not guilty by insanity plea.
Under the Penal Code, a defendant may plead "[n]ot guilty by reason of insanity" and join that plea with another plea, such as "[n]ot guilty." (§§ 1016, 1026.) The defendant is then tried on the question of his factual guilt and, if found guilty, receives a second trial with respect to sanity. (§ 1026.) If the fact finder finds that the defendant committed the offense but "was insane at the time the offense was committed," the trial court "shall direct that the defendant be confined in a state hospital" for the treatment of the mentally ill "until the court which committed the person shall, after notice and hearing, find and determine that the person's sanity has been restored." (Id., subds. (a), (b).)
On August 27, 2004, Clark announced his desire to represent himself at trial and submitted a Lopez waiver to the court. The court reviewed the completed waiver form on the record with Clark, with counsel present, and Clark indicated his understanding of the ramifications of the decision to represent himself as described in Lopez, supra, 71 Cal.App.3d 568. In finding that Clark made a knowing and voluntary waiver of his right to counsel, the court noted Clark did not appear to have "any mental problems" and "underst[oo]d the nature of the proceedings and the possible punishments." The court, consequently, relieved Clark's appointed attorney and permitted Clark to represent himself. After his counsel was relieved, Clark refused the court's offer to provide him with an investigator, explaining, "This case is cut and dried. I committed the crime."
See People v. Lopez (1977) 71 Cal.App.3d 568, 571 (Lopez).
On September 9, 2004, Clark appeared before the court and asked that his post arrest statements to police be suppressed. The court informed Clark that to challenge the admission of his statements, he would need to file a written motion; Clark, then, requested an attorney be appointed to act as "cocounsel." When the court refused that request, Clark requested an attorney to represent him, and his request was granted.
On Thursday, October 7, 2004, Clark appeared, again represented by his previously-appointed counsel, Butler. Butler informed the court that Clark wanted to represent himself, and suggested that the court conduct a Lopez inquiry, adding that "if it gets too strange, maybe some other type of motion might be in order." Clark then personally requested that he be allowed to represent himself, and stated that he was ready to proceed to trial. Clark noted, however, that he had not yet received the report of Dr. Abrams, a psychiatrist hired by his attorney to evaluate him after both court-appointed psychiatrists concluded that the available evidence did not support a conclusion that Clark was legally insane at the time of the offense. Clark added that he intended to present four witnesses in support of his insanity defense: (1) his wife; (2) Rene Endenow, an employee of the Veterans Administration; (3) Detective Ryan of the sex crimes division; and (4) Dr. Abrams.
The court summoned Dr. Abrams to appear in court; the next day, Dr. Abrams informed the court that he "absolutely" had sufficient information to reach a conclusion as to Clark's insanity defense and would be able to conclude his report by that afternoon.
Clark submitted a second Lopez waiver to the court and the court proceeded to review the waiver with Clark; Clark, again acknowledged that he understood the constitutional rights he would be waiving and significant disadvantages of self-representation as set forth in Lopez, supra, 71 Cal.App.3d 568. Clark stated that he had spoken to an attorney "at some length" at the jail who had "advised" him, and added that "I never denied it"; "I committed the offense." Clark also acknowledged that he was taking his psychiatric medication and felt "fine." The trial court, noting that it had reviewed the psychiatric records generated in the case, found that Clark had "made a voluntary, intelligent and understanding wavier of [his] right to a lawyer," and relieved Butler as counsel.
After a recess, Clark informed the court that he had "thought about everything" and decided that he would rather have a court trial than a jury trial. Clark also stated that he had read through all the discovery and would "stipulate to all the testimony of the witnesses" so that the prosecution would not have to "fly anybody in here" and so that the "victim would not have to come in and testify."
The prosecutor previously had noted that he arranged airline flights for witnesses from Hawaii and Texas to be available to testify.
The trial court confirmed that Clark was waiving his right to a jury trial both as to guilt and sanity, and would permit the court to determine his guilt based on the preliminary hearing transcript and other documentary evidence submitted by the parties. Clark explained that as he believed that the witnesses' testimony presented at the preliminary hearing was true, "I can only stand at the mercy of the court." Clark also agreed, with respect to the sanity phase of the trial, to stipulate to the admission of the reports prepared by the two court-appointed doctors, as well as Dr. Abrams, and to waive his right to cross-examine the doctors. Clark stated he no longer desired to present testimony from his wife, Endenow and Ryan —"character-type witness[es]" — who Clark did not want to inconvenience by subpoenaing to court. Finally, Clark stipulated to the admission of his videotaped interview with police. Clark emphasized that he "was hoping to speed the process up," and had "no evidence to present." Clark reiterated, "I hold myself responsible"; "I was the one that committed the crime."
The court set the case for trial the next week. At the trial, the court accepted into evidence the police reports, preliminary hearing transcript and Clark's videotaped interview with police; with respect to the sanity phase of the trial, the court accepted into evidence the reports of the doctors. In closing argument, Clark did not contest the evidence against him, but instead read from a book by a popular author, Wayne Dyer, which discussed forgiveness for past transgressions; Clark announced he was "a different person today than I was even 45 days ago"; "I feel remorse for my victim. I know better than to ever hurt another person. Always take my medication. Never drink alcohol again. I'm ashamed, and I repent to this Honorable Court for my actions." The prosecutor, in response, detailed Clark's guilt of each offense charged.
At the conclusion of the trial, the court found Clark guilty on each of the six counts for which he was charged and found that Clark had not established by a preponderance of the evidence that he was insane at the time of the offense. (§ 25, subd. (b) [insanity defense may be found "only when the accused person proves by a preponderance of the evidence that he or she was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense"].) With respect to the sanity finding, the court noted that the two court-appointed psychiatrists had concluded that the evidence did not support Clark's claim of insanity, and even the defense expert, Dr. Abrams, conceded that it was "a very close call" prior to concluding that "only the smallest scintilla over half of the evidence" weighs in favor of a finding of insanity. The court noted for purposes of sentencing that Clark "does have remorse," and stated that despite the earlier indications that Clark was not competent, "it seems to me that he does understand these proceedings, he understands what he did, [and] he feels sorry for what he did."
The court also commented on its decision to allow Clark to represent himself, stating:
"He's indicated several times he didn't want to waste any body's time because everybody kind of understood what the facts were and it was just a question of finding out and deciding what the results or ramifications of those facts were. And far from being something which would indicate that Mr. Clark has a serious psychological impairment, it seems to the court that it was a very rational realization of the cold hard facts of what happened that day. [I]t is not that often [to see] someone like you who's remorseful for what he's done in his life. [This is] one of those cases."
The court sentenced Clark to 29 years to life in prison. At the conclusion of the proceedings, Clark thanked the court for its "just sentence and for the time and your consideration that you've extended me during my trial."
Clark requests that we take judicial notice of the material contained in San Diego County Superior Court case files (case Nos. MH SMD 95164, 95255 and 95960), which contain the psychiatric reports prepared after Clark's competency evaluations in the proceedings below. Clark particularly emphasizes a portion of one competency review where the Patton State Hospital doctors emphasize that Clark should remain on medication to " 'ensure continued competency.' " We grant the request.
DISCUSSION
I.
The Trial Court Did Not Abuse Its Discretion in Declining to Sua Sponte Conduct a Fifth Competency Hearing
Clark contends that the trial court was required to conduct a fifth competency hearing to revisit its January 4 finding, at the conclusion of his fourth competency hearing, that he was competent to stand trial. Clark contends that the trial court's failure to do so constituted an abuse of discretion because the record demonstrates a change of circumstances necessitating a fifth hearing based on Clark's "admission that he was decreasing his medication," comments by his counsel and Dr. Abrams, and Clark's "erratic behavior" during the trial. We evaluate this contention after setting forth the applicable legal standards.
Under both the federal and California Constitutions, as well as under California statutory law, a defendant may not be "tried or sentenced while mentally incompetent." (People v. Dunkle (2005) 36 Cal.4th 861, 885, citing § 1367, subd. (a).) A defendant is mentally incompetent "if, 'as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.' " (People v. Marks (2003) 31 Cal.4th 197, 215 (Marks), quoting § 1367, subd. (a).) Whenever the defendant "presents substantial evidence of incompetence, due process requires that the trial court conduct a full competency hearing." (People v. Jones (1991) 53 Cal.3d 1115, 1152 (Jones); § 1368, subd. (a).)
Once a defendant has been found competent to stand trial, however, "a [subsequent] competency hearing is required only if the evidence discloses a substantial change of circumstances or new evidence is presented casting serious doubt on the validity of the prior finding of the defendant's competence." (People v. Medina (1995) 11 Cal.4th 694, 734 (Medina).) "The court's decision whether to grant a competency hearing is reviewed under an abuse of discretion standard." (People v. Ramos (2004) 34 Cal.4th 494, 507 (Ramos); People v. Huggins (2006) 38 Cal.4th 175, 220 ["We apply a deferential standard of review to a trial court's ruling concerning whether another competency hearing must be held"].) Neither a defense counsel's generic statements that the defendant is unable to assist with his defense nor "bizarre statements and actions" on the part of the defendant are sufficient evidence to require a trial court to hold a renewed competency hearing. (Marks, supra, 31 Cal.4th at p. 220; Jones, supra, 53 Cal.3d at p. 1153.)
Applying the legal principles discussed above, we conclude that Clark has failed to carry his burden of demonstrating that the trial court abused its discretion.
As the lengthy procedural history of this case shows, the trial court was particularly attentive to the requirement that a competency hearing be held whenever a substantial doubt arose as to Clark's competency. In fact, the court repeatedly, and with little hesitancy, adjourned the criminal proceedings whenever a question was raised regarding Clark's competency to stand trial. In each instance, the trial court then ordered a psychiatric evaluation to determine Clark's current competency and, upon receipt of the examining physician's report and, in the absence of any conflicting evidence submitted by the parties, deferred to the physicians' judgment as to Clark's competence. At the fourth competency hearing on January 4, 2004, the evaluating physician found Clark to be competent to stand trial and, after both parties submitted on the physician's report, the trial court found Clark competent to proceed.
Clark does not challenge the court's competency finding at the January 4, 2004 hearing.
Our review of the record does not reveal a substantial change of circumstances subsequent to the January 4 hearing that would warrant a conclusion that the trial court abused its discretion in declining to hold a renewed competency hearing.
The specific factors identified by Clark on appeal that purportedly evidence the requisite change of circumstances are unconvincing. First, Clark suggests that a substantial change of circumstances was demonstrated by evidence that Clark was "decreasing his medication." However, the fragments of the record that Clark cites on appeal suggest not that Clark unilaterally decreased or stopped taking his medication, but rather that Clark was gradually decreasing (or seeking to decrease) his medication with the support of his jail psychiatrist because he was responding well to the prescribed dosage. This evidence does not support a conclusion that a substantial change of circumstances required a renewed competency hearing.
For example, Clark informed the court, "I've . . . tried to get the psychiatrist to reduce my level of Depakote . . . since I've come back from Patton Hospital" because "I've been taken off medication little by little, and I feel fine."
Clark also references an episode where defense counsel stated that Clark had stopped taking his medication for 11 days, but that episode occurred prior to the court's fourth competency finding and thus is irrelevant to the question of whether a change of circumstances necessitated a subsequent hearing.
Second, Clark references two comments by his counsel, Butler, after the January 4 hearing where Butler implied that there could be a question as to Clark's competency. The referenced comments — (i) "if [the Lopez inquiry] gets too strange, maybe some other type of motion might be in order"; and (ii) that Butler would provide discovery to Clark at the completion of the Lopez inquiry, assuming the court "didn't have a question about competency" — did not indicate defense counsel's belief that Clark was not then competent. Rather, counsel's statements suggested that Clark might later become incompetent (or appear to be incompetent), at which point the court would need to conduct a hearing. (§ 1368, subd. (a).) These comments stood in sharp contrast to Butler's unequivocal requests for a competency examination at earlier proceedings, such as his statements at the June 4, 2003 hearing — "we're bringing another [section] 1368 motion" because Clark "hasn't been receiving medication," is "in bad shape" and "[w]e need to have another examination" — that resulted in immediate suspension of the proceedings and a subsequent competency hearing. Consequently, the isolated comments cited by Clark do not indicate a "substantial change of circumstances" requiring a renewed competency hearing. (Medina, supra, 11 Cal.4th at p. 734; § 1368, subd. (b) ["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"].)
Clark also highlights his "long and documented history of a settled mental disorder." Of course, this factor did not constitute a substantial change of circumstances, and thus did not necessitate a subsequent competency hearing. (Medina, supra, 11 Cal.4th at p. 734.)
Third, Clark points out that shortly before trial, Dr. Abrams inquired whether the court wanted him to address Clark's competency in his evaluation of Clark's not guilty by reason of insanity defense and stated in the completed report that Clark's mental disorder could result in " 'an abrupt deterioration in functioning.' " However, Clark omits that Abrams's report actually states that Clark appears "to be presently competent to stand trial." Consequently, while Abrams, like Butler, appeared to be concerned about the potential that Clark would become incompetent, neither his report nor his comments to the court supported a finding that a substantial change in circumstances had occurred warranting a renewed hearing regarding Clark's present competence.
Fourth, Clark contends that a substantial change in circumstance was demonstrated by his poor performance as his own counsel at trial. Specifically, Clark points to his failure to vigorously contest the evidence presented against him, and his acquiescence to the admission of evidence such as the preliminary hearing transcript, the psychiatric reports and videotaped interview with police that, in total, resulted in a "slow plea" of guilty. Clark's actions at trial, however, were not inconsistent with a conclusion that he was able to "understand the nature of the criminal proceedings" against him — the relevant competency standard. (§ 1367, subd. (a).) With respect to the guilt phase of the trial, Clark candidly recognized that the evidence against him was overwhelming. As demonstrated by the victim's testimony at the preliminary hearing and the numerous witness statements collected in the discovery materials he had been provided, it was inconceivable that Clark would have been acquitted no matter how skillful his cross-examination of prosecution witnesses or how thorough his presentation of defense evidence. Further, as the trial court noted, Clark appeared to be genuinely remorseful and thus reluctant to compound the harm he had already done to the victim by requiring her (and other witnesses) to testify at trial.
With respect to the sanity phase of the trial, Clark's decision not to cross-examine the doctors who had reported that he was sane (like the prosecution's failure to cross-examine Dr. Abrams, who concluded otherwise) also does not demonstrate mental incompetence. The decision not to cross-examine the doctors appears to be an outgrowth of Clark's desire to place himself "at the mercy of the court" and also may have been influenced by a rational perception of the slim likelihood that his cross-examination of the doctors would alter the court's ultimate conclusion. These choices, then, in context, do not demonstrate an inability to "understand the nature of the criminal proceedings" and thus cannot constitute the substantial change in circumstances that would have necessitated a renewed competency hearing. (§ 1367, subd. (a); see People v. Deere (1985) 41 Cal.3d 353, 359 [concluding that defendant's expressions of remorse, plea of guilt to capital offense and waiver of jury for purposes of penalty phase did not support contention on appeal that he was incompetent]; Ramos, supra, 34 Cal.4th at p. 509 ["a defendant's preference for the death penalty and overall death wish does not alone amount to substantial evidence of incompetence or evidence requiring the court to order an independent psychiatric evaluation"].)
Clark also highlights two places in the record where he raised issues with respect to the evidence, one as to whether he was wearing a shirt during the offense, and a second regarding the disposition of a purse he had been carrying. Clark argues that since these critiques of the evidence were not "relevant in light of [his] slow plea," they demonstrated the absence of a "capacity for rational decision-making." We disagree. Clark later conceded "after analyzing" the issue that the shirt "doesn't really have anything to do with" the evidence, and he appears to have raised the issue of the purse solely for purposes of having it returned to him. Consequently, Clark's comments are not at odds with his overall concession of guilt and expression of remorse, and, in any event, are far from the type of irrational behavior that would support reversal of a trial court's failure to conduct a renewed competency hearing on appeal. (Marks, supra, 31 Cal.4th at p. 220 ["once a defendant has been found to be competent, even bizarre statements and actions are not enough to require a further inquiry"].)
In sum, the record supports the trial court's view that Clark's unwillingness to contest much of the evidence presented against him was motivated by a subjective belief that he was guilty, remorse as to his crime, and a recognition that the evidence against him was overwhelming. The court could reasonably conclude, consequently, that Clark's actions at trial did not demonstrate a breakdown in Clark's mental functioning (thus necessitating a renewed competency hearing) but instead stemmed from a rational desire to minimize any additional pain to the victim, expense to the State and inconvenience for the witnesses, as well as, perhaps, creating the potential for lenience at sentencing. Thus, while there were, indeed, legitimate questions as to Clark's competency throughout the proceedings, the trial court acted within its discretion in responding to these questions. More specifically, we perceive no abuse of discretion in these circumstances when the court, after having found Clark competent at the January 4, 2004 competency hearing, declined to sua sponte revisit that finding during the trial.
The cases cited by Clark in support of his contrary contentions are plainly inapposite. In People v. Kaplan (2007) 149 Cal.App.4th 372, Division Three of this District found that a change of circumstances required a second competency hearing; the appellate court based this conclusion on the fact that the trial court had received an evaluation by a psychiatrist that "addressed at length how and why defendant was unable to assist counsel" and identified a number of changed circumstances that had led to that situation. (Kaplan, at p. 386.) Here, there was no such analogous evidence of a significant change of circumstances. In Pate v. Robinson (1966) 383 U.S. 375 and Drope v. Missouri (1975) 420 U.S. 162, the United States Supreme Court held that the trial court's failure to conduct any competency hearing at all violated the defendant's constitutional rights, particularly in light of the fact that "there was no [expert] opinion evidence as to [defendant's] competence to stand trial." (Drope, at pp. 180, 173, fn. 9; Pate, at pp. 384-385.) Here, the trial court conducted four competency hearings and proceeded with trial only after making a finding, supported by the psychiatric expert's opinion, at the fourth hearing that Clark was competent to stand trial.
Similarly, People v. Sundberg (1981) 124 Cal.App.3d 944 is inapposite. In that case, defense counsel, whose client had formerly been deemed incompetent, requested a subsequent competency hearing for the defendant because he " 'ha[d] a doubt right now' " about his competency, and informed the court that the evaluating psychiatrist had concluded that the defendant "was probably not mentally competent to stand trial." (Id. at pp. 952, 957.) As noted above, there was no such evidence of a substantial change in circumstances presented to the trial court in the instant case.
II.
The Record Does Not Demonstrate that Clark's Waiver of His Right to Counsel Was Invalid
As an alternative ground for reversal, Clark contends that the trial court erred in granting his request at the outset of his trial to represent himself because he "was mentally incompetent at the time he waived his right to counsel." We analyze this contention after setting out the applicable legal principles.
The federal Constitution requires that a criminal defendant "who is competent" be permitted to "waive the right to counsel and represent himself." (People v. Joseph (1983) 34 Cal.3d 936, 943; Faretta v. California (1975) 422 U.S. 806 (Faretta).) This right is premised on the "nearly universal conviction . . . that forcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so." (Faretta, at p. 817.) When confronted with a request for self-representation, "[t]he trial court is not concerned with the wisdom of defendant's decision to represent himself, or with how well he can do so. The sole relevant question is whether the defendant has the mental capacity to knowingly waive counsel while realizing the probable risks and consequences of self-representation." (People v. Clark (1992) 3 Cal.4th 41, 107; Godinez v. Moran (1993) 509 U.S. 389, 400 (Godinez) [explaining that "although the defendant 'may conduct his own defense ultimately to his own detriment, his choice must be honored,' " and "a criminal defendant's ability to represent himself has no bearing upon his competence to choose self-representation"].) The court's ruling regarding "the defendant's competence to waive counsel" will "not be disturbed on appeal absent an abuse of . . . discretion." (People v. Clark, supra, at p. 107.)
As the trial court is not asked to consider "how well" the defendant will be able to represent himself (People v. Clark, supra, 3 Cal.4th at p. 107), Clark's frequent references to his questionable performance as his own attorney (e.g., his stipulation to the admission of the videotaped confession, volunteered admissions of guilt in informal colloquies with the court, and his allowing the court's perceived preferences to "impact" his decisions) are not persuasive on the question of whether the trial court abused its discretion in allowing him to represent himself. (People v. Clark, supra, at p. 107; People v. Bloom (1989) 48 Cal.3d 1194, 1223 ["a capital defendant's announced intention to seek the death penalty does not compel denial of a motion for self-representation"].)
Echoing the contention we rejected in the preceding section, Clark contends his waiver of his right to counsel was invalid because he was not mentally competent. However, the "standard of competence" required for a valid waiver of counsel is no higher than that required for a defendant to stand trial. (Godinez, supra, 509 U.S. at pp. 401, 399; People v. Welch (1999) 20 Cal.4th 702, 732.) As noted above, prior to the court's ruling on his request to represent himself Clark was found competent to stand trial based on the evaluation by a court-appointed psychiatrist. As we have already concluded in part I ante, that the trial court did not abuse its discretion in declining to revisit that competency finding, it necessarily follows that the trial court also did not abuse its discretion in relying on that finding of competence, in concert with the absence of any contrary indications during its Lopez inquiry, in granting Clark's request to represent himself. Consequently, we reject Clark's contention that he could not enter a valid waiver of his right to counsel because he was mentally incompetent.
While the applicable standards for mental competency are equivalent, the determination that a defendant is competent to stand trial is not itself sufficient to demonstrate a valid waiver of a right to counsel. (Godinez, supra, 509 U.S. at pp. 401-402.) In addition to a defendant's mental competence, a valid waiver of the right to self-representation requires that "the waiver must also be intelligent and voluntary." (Id. at p. 402.) Here, the trial court evaluated whether Clark's waiver of his right to self-representation was intelligent and voluntary by reviewing his completed Lopez waiver form and engaging in a colloquy with Clark regarding the admonitions contained in the form. Apart from his general assertion of incompetence, Clark does not contend that his waiver was not knowing or voluntary — i.e., that the colloquy or written Lopez waiver were deficient — and no such deficiency appears in the record.
Clark also suggests that the trial court erred by granting his request for self-representation because it was presented just prior to trial and was, therefore, untimely. (People v. Clark, supra, 3 Cal.4th at p. 98 [noting that a defendant must assert his right to represent himself " ' " 'within a reasonable time prior to the commencement of trial,' " ' " and "[a] motion made after this period is addressed to the sound discretion of the trial court"].) However, in the instant case, the late nature of Clark's request would not have required its rejection because Clark stated he could proceed to trial without any continuance. (See id. at p. 110 [affirming trial court's grant of midtrial Faretta request where "[t]he Faretta motion was ultimately granted only when defendant expressly represented he was able to proceed without a continuance"].) In addition, our Supreme Court has held that a defendant cannot claim on appeal "that his own motion [for self-representation] should not have been granted" because it was untimely. (People v. Clark, supra, at p. 109 [holding that "[b]ecause the court granted defendant's motion for self-representation at his own insistence, he may not now complain of any error in the court's failure to weigh the . . . factors," such as that the motion was untimely].) Consequently, we would be required to reject this contention even were it meritorious.
We also reject Clark's suggestion that his history of mental illness and prior finding of incompetence effectively barred the assertion of his right to self-representation. While prior mental illness is a proper factor for a court to consider in evaluating a defendant's present competence for purposes of self-representation, it is not dispositive. Consequently, Clark's underlying mental illness and prior finding of incompetence did not preclude the trial court's later determination, after Clark was deemed competent, that he could waive his right to counsel. (See People v. Miller (1980) 110 Cal.App.3d 327, 332 [concluding that trial court acted reasonably in concluding that defendant could represent herself despite an earlier finding of incompetence]; cf. People v. Clark, supra, 3 Cal.4th at p. 108 [defense counsel's comments that defendant was " 'crazy' " and doctors' report that "defendant's personality disorders included self-destructive conduct, obnoxiousness and narcissistic self-focus" did not require hearing on defendant's mental competency to represent himself].)
In sum, while Clark, like virtually all defendants, would no doubt have received more vigorous representation at trial from his appointed counsel (Faretta, supra, 422 U.S. at p. 834), he has failed to demonstrate that the trial court abused its discretion in granting his request to represent himself. (Cf. People v. Blair (2005) 36 Cal.4th 686, 734 [defendant who represents himself cannot claim ineffective assistance of counsel on appeal].) Consequently, we reject Clark's contention that the trial court abused its discretion in granting his request.
DISPOSITION
Affirmed.
WE CONCUR: BENKE, Acting P. J., O'ROURKE, J.
Clark also references the published opinion in United States v. Wattenbarger (1983) 15 M.J. 1069 to support his contention that he was not competent. The cited case arose from Clark's (then known as Brent C. Wattenbarger) convictions for "assault with intent to commit rape, assault with a means likely to produce grievous bodily harm, and housebreaking" while serving in the United States Navy. (Id. at p. 1071.) According to the opinion, after drinking a significant amount of alcohol, Clark tried to rape a woman living in military housing in circumstances similar to those at issue in the instant case. (Ibid.) Clark contended at the military trial that he was not guilty by reason of insanity, but this defense was rejected by the members of the court martial and their conclusion was upheld on appeal. (Id. at p. 1076.)