People v. Durham

Full title: THE PEOPLE, Plaintiff and Respondent, v. WILLIAM LOGAN DURHAM, Defendant…

Court: California Court of Appeals

Date published: Apr 19, 2011

F058573 (Cal. Ct. App. Apr. 19, 2011)

Opinion

         NOT TO BE PUBLISHED

         APPEAL from a judgment of the Superior Court of Fresno County No. F08600722 James R. Oppliger, Judge.

          Julia J. Spikes, under appointment by the Court of Appeal, for Defendant and Appellant.

          Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.

          OPINION

          POOCHIGIAN, J.

         INTRODUCTION

         Appellant/defendant William Logan Durham was charged and convicted of making a criminal threat (Pen. Code, ¹ § 422) to Miriam Salas, the office manager at an outpatient clinic, when he threatened to kill Salas after she asked him to leave because of his disruptive behavior. He was sentenced to an aggregate term of nine years in prison.

1 All further statutory citations are to the Penal Code unless otherwise indicated.

         On appeal, defendant contends there is insufficient evidence to support his conviction because he never made a verbal threat to Salas, and section 422 cannot be violated by nonverbal conduct. He also contends the court should have given the unanimity instruction as to which acts constituted the charged offense, instructed on the lesser included offense of an attempted criminal threat, and instructed on mental defect as negating specific intent. Defendant further argues the court improperly admitted character evidence regarding his threats to kill one of the arresting officers.

         Defendant further argues the court improperly denied his motion to represent himself at his sentencing hearing, pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta), and it should have found him competent to represent himself since it had just found him competent for the reinstatement of criminal proceedings. Finally, defendant asserts the court improperly imposed a $30 assessment fee under Government Code section 70373. We will affirm.

         FACTS

         The Sierra Kings District Hospital operates an outpatient clinic for adults in Reedley. The hospital also runs a children’s clinic directly across the street from the adult clinic. Miriam Salas was the office manager for both clinics. The adult clinic does not provide mental health treatment, but the physicians provide follow-up care for mental health patients to make sure they are taking their medications.

         Defendant’s conduct in the examination room

         Around 2:00 p.m. on April 8, 2008, defendant was at the clinic and waiting to be seen by a physician. He was shown into an examination room, and his medical chart was placed in a slot on the outside of the door.

         Dr. Randy Taylor was treating other patients at the clinic and noticed defendant was pacing in and out of his assigned room. Defendant was agitated and could not sit still. He was rapidly mumbling but he did not say anything coherent.

         Sandra De La Rosa, a medical assistant, was advised by a coworker that defendant had grabbed his chart from the door slot. De La Rosa went into defendant’s room and found him sitting in a chair and looking through his chart. She asked defendant to please give her the chart and explained that she would be glad to provide him with a copy of his records. Defendant did not respond and continued reading the chart. De La Rosa tried to grab the chart from defendant and he yanked it away from her. She told defendant that she “didn’t need to take this, ” and she was going to call Salas, the office manager.

         De La Rosa tried to call for assistance but she could not reach Salas. De La Rosa heard noise and running water from defendant’s room. She returned to defendant’s room, and discovered that defendant was trying to destroy his medical chart in the sink. De La Rosa testified that defendant “aggressively” turned the pages and ripped them out of the chart, banged on the soap dispenser, and soaked the pages with soap and water in the sink. De La Rosa was frightened and decided to call for help.

         Dr. Taylor emerged from another room and De La Rosa explained what was going on. As they talked, defendant walked out of the examination room and said the chart was “full of lies.” Defendant walked out of the clinic. He appeared to be very upset but he did not say anything else.

         Salas’s first call to the police ²

2 As we will explain, Salas called the police three times that day. The prosecution played the 911 tapes at trial and introduced the transcripts into evidence.

         After defendant left, De La Rosa reached Salas and informed her about the incident. Salas found the remains of defendant’s chart in the examination room’s sink. Salas’s supervisor directed her to call the police, and Salas did so.

         According to the tape recording of the 911 call, Salas informed the police that defendant had been waiting to see a doctor, he threw his medical chart into the sink, tore it up, and left the building. Salas said she did not know if defendant was going to return, but she wanted to make a written report about the incident because “he’s mentally unstable.”

         Defendant returns to the clinic

         Salas decided to sit at the front desk for the rest of the day with Vanessa Padilla, the receptionist, in case defendant returned to the clinic.

         Around 5:00 p.m., defendant returned to the clinic, tried to sign in at the front desk, and asked to be seen by a physician. Salas advised defendant that he could no longer be seen at the clinic because of the earlier incident, and that he had to leave. Defendant apologized and said he needed to be seen. Salas repeated that the clinic would not accept him because he had destroyed his chart. Defendant replied, “Well, I have many charts in my garage, I can bring one.” Salas testified that defendant kept demanding to be seen. He was upset and refused to leave.

         Padilla, the receptionist, testified that defendant yelled and cursed at Salas when she refused to let him into the clinic. Defendant repeatedly called Salas a “stupid white bitch.” Defendant kept yelling but Padilla could not remember everything he said.

         Salas left the front desk and called the police from a back office. Salas reported defendant had returned to the clinic, he was being verbally abusive, and she had asked defendant to leave but he would not do so.

         Defendant remains at the reception desk

         As Salas was on the telephone with the 911 operator, one of the office assistants reported that defendant was cursing at the receptionist. Salas finished her call with the police, returned to the front office, and found defendant leaning over the reception desk.

         Salas testified that defendant was yelling at Padilla that it was “a bunch of shit [and] that he needed to be seen, that he needed to get his medications.” Defendant said the information in the chart was incorrect, “he was not schizophrenic, that’s a western disease [and he] just kept going on and on.” Padilla testified that defendant was yelling so loud that she could not hear anyone as she tried to continue answering the clinic’s telephone.

         Salas testified that defendant stayed at the receptionist’s desk for a total of 10 to 15 minutes, and he was yelling and using profanity during that time. Salas told defendant that she had called the police and he needed to leave. He “just kept going on, ” and became even more angry and upset.

         Defendant scratches marks into the window

         Defendant finally walked out of the clinic. Once he was outside, he walked up to an outside window and looked back inside to the reception area where Salas and Padilla could see him. Salas testified that defendant walked across the dirt and plants, approached the closed window, and pulled a knife from behind his back. Defendant looked at Salas through the window, opened the knife, and exposed the blade.

         Salas made her third 911 call and reported that defendant had a knife. As she was talking to the police, defendant stood in front of the window and used the knife to carve and scratch marks into the glass. Salas testified defendant was angry and spitting at the window as he carved into the glass. Salas described defendant’s conduct to the 911 operator and stayed on the line.

         Padilla testified defendant was “scribbling” on the window with the knife. Defendant continued to shout and yell while he was outside, but Padilla could not remember what he was saying. Defendant started to spit at the window and Padilla became frightened. She moved to another area of the clinic so she could continue to answer the clinic’s telephone. Defendant was still using the knife to scratch marks in the window when Padilla left the front desk.

         Defendant gestures with the knife

         Salas remained at the front desk and testified defendant scratched the glass for about one minute. Salas testified that defendant then looked at her through the window and gestured with the knife:

         “After he did the carving and the spitting at the window he took the knife and he had it in his hand and he did the gesture of putting it across his neck and then he pointed it at me and with his lips I read, I’m going to kill you.”

         Salas testified defendant ran the knife across his throat, from ear to ear, and then pointed the knife at her. Salas did not hear defendant’s voice through the window, but she saw him “mouth” what appeared to be “I will kill you, ” after he gestured with the knife.

         Salas testified that defendant stood at the window with the knife for about two or three more minutes. He then put away the knife and walked away from the building.

         Dr. Taylor testified that he watched defendant scratch marks into the glass window with the knife. Dr. Taylor testified that defendant “made a gesture with the knife through his throat, ” and “made a slashing mark with the knife across his throat.”

         Dr. Taylor did not notice if defendant pointed the knife at anyone during this time because he was waiting for an opportunity to get to the clinic’s front door and make sure defendant could not get back in. When defendant moved away from the window, Dr. Taylor ran to the door, and closed and locked it.

         Salas’s statements to the 911 operator

         Salas had stayed on the telephone with the 911 operator during the entire time that defendant was standing at the window and scratching the glass with his knife. According to the tape recording of the 911 call, Salas advised the operator that defendant was spitting at the window, and he was “making me think he’s going to slash my throat and has a gun and he’s going to shoot me.”³ Salas told the operator that defendant had a knife, and he had “threatened” her. Salas then reported that defendant was leaving, and she thought he was walking to the children’s clinic across the street. She said defendant was “a psych patient” and advised the operator that defendant was standing in front of the children’s clinic. Salas next reported that an officer had arrived but he did not see defendant. The operator said that she would advise the officer about defendant’s current location and the call ended.

3 At trial, Salas conceded she never saw defendant with a gun and he never threatened to shoot her.

         Defendant’s threats outside the clinic

         Reedley Police Officer Colin Unruh responded to the clinic and saw defendant crossing the street, walking away from the clinic very quickly. Unruh approached defendant and asked if he had a knife, and defendant said yes. Unruh grabbed defendant’s hands and placed them behind defendant’s back. He conducted a patdown search and found a folded knife in a waistband pouch. Defendant was agitated, very upset, and “cussing wildly and shouting.”

         In the meantime, Salas completed her call with the police, “waited a little bit, ” and walked across the street to the children’s clinic. She saw that an officer had taken defendant into custody and went to talk to the officer.

         Officer Unruh testified that defendant saw Salas when she was about 20 feet away from him. Unruh testified that when defendant saw Salas, he became very upset and yelled at her, “F*** you bitch. I’ll f***ing kill you and blow up the clinic.” Officer Unruh immediately placed defendant in handcuffs, and asked Salas to identify defendant and the knife. Salas did so.

         Officer Lowery arrived at the scene and described defendant as “pretty agitated or belligerent.” Defendant continued to yell obscenities at Salas, and looked at her and said “I’m going to kill you, you f***ing white bitch.”

         Defendant’s threats to Officer Lowery

         Officer Unruh placed defendant in the patrol car so he could calm down. Defendant continued to shout profanities and became even more irate. Defendant looked at Officer Lowery and yelled, “F*** you. I’ll kill you and I’ll kick your ass, ” and said he would “f***ing stab” and “kill” Lowery. Salas heard defendant yell at an officer “that he was going to kill him.”

         Officers Lowery and Unruh interviewed Salas about the incident. Salas was upset, very afraid, and extremely scared. She was crying and her hands were shaking. Salas was hysterical and said defendant had threatened her with a knife five minutes earlier. Salas said she feared for her life because of what defendant did, and she was afraid defendant was going to return to the clinic and “cut my throat.”

         Defendant’s postarrest statements

         Officer Unruh subsequently contacted defendant at the police department and advised him of the warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436, and defendant agreed to an interview. Unruh asked defendant why he was so upset with the clinic staff. Defendant said “he was refused as a patient.” Defendant denied threatening Salas with a knife, and claimed he just carved “a hospital symbol” into the window because he was angry.

         Unruh asked defendant additional questions about the incident, but defendant’s responses were “difficult to understand.” However, defendant made a random statement to Unruh, that “if he had a chance he would have killed me with the knife as well.”

         Charges, conviction, and sentence

         Defendant was initially charged with count I, making a criminal threat to Salas, and count II, assault with a deadly weapon, a knife, on Salas (§ 245, subd. (a)(1)), with the special allegations that defendant had one prior serious felony (§ 667, subd. (a)) and one prior strike conviction (§ 667, subd. (b)-(i)).

         The court granted defendant’s pretrial motion to dismiss count II. The trial was delayed on two occasions when the court suspended criminal proceedings because of doubts about defendant’s competency. After reviewing expert reports, the court found defendant was competent and reinstated the proceedings. The trial was again delayed when the court granted defendant’s pretrial motion to represent himself pursuant to Faretta. During the time that defendant represented himself, he failed to prepare for trial and destroyed documents in his criminal file. The court later appointed defense counsel who represented defendant throughout the trial.

         The case was eventually tried to the jury on the single count of making a criminal threat to Salas. As we will explain post, the prosecution’s theory of the case was that the charged offense of making a criminal threat to Salas was based on defendant’s continuous course of conduct, when he returned to the clinic at 5:00 p.m., yelled at Salas at the front desk, stood outside the window, gestured with the knife and mouthed a threat to her, and then yelled obscenities and threatened to kill her and blow up the clinic as he was being arrested by Officer Unruh. Defendant was convicted, the court found the special allegations true, and he was sentenced to nine years.

         DISCUSSION

         I. Defendant’s conviction is supported by substantial evidence

         Defendant contends his conviction for committing a criminal threat against Salas is not supported by substantial evidence. Defendant argues section 422 requires verbal threats and it cannot be violated by nonverbal conduct. Defendant asserts that his conviction was based solely on his conduct at the window  when he looked at Salas, drew the knife across his throat in a slashing motion, and mouthed the words “I will kill you.” Defendant argues his nonverbal conduct did not violate section 422 because Salas never heard his voice and only claimed to have read his lips. Respondent contends that the entirety of the circumstances demonstrates that defendant’s verbal threats to kill Salas, which he made outside the clinic, were part of the incident and support his conviction.

         “In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.)

         A. Section 422

         Section 422 defines the crime of “criminal threat.” (People v. Toledo (2001) 26 Cal.4th 221, 224, fn. 1 (Toledo).) It states:

         “Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.” (§ 422, italics added.)

         We look to “all the surrounding circumstances and not just on the words alone” to determine if there is substantial evidence to support a violation of section 422. (People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340; People v. Brooks (1994) 26 Cal.App.4th 142, 148-149 (Brooks).) “This includes the defendant’s mannerisms, affect, and actions involved in making the threat as well as subsequent actions taken by the defendant.” (People v. Solis (2001) 90 Cal.App.4th 1002, 1013 (Solis).) Threats are judged in their context and not solely on the specific words that were spoken. (Id. at p. 1014.) The fact finder “can properly consider a later action taken by a defendant in evaluating whether the crime of making a [criminal] threat has been committed.” (Ibid.)

         As we will explain, section 422 may not be violated by nonverbal conduct alone, but a combination of words and gestures may constitute a criminal threat under section 422. (People v. Franz (2001) 88 Cal.App.4th 1426, 1442, 1446 (Franz).) “A communication that is ambiguous on its face may nonetheless be found to be a criminal threat if the surrounding circumstances clarify the communication’s meaning. [Citation.]” (In re George T. (2004) 33 Cal.4th 620, 635.) “When the words are vague, context takes on added significance, but care must be taken not to diminish the requirements that the communicator have the specific intent to convey a threat and that the threat be of such a nature as to convey a gravity of purpose and immediate prospect of the threat’s execution.” (at p. 637.)

         B. Franz, Solis, and Brooks

         Defendant argues that section 422 cannot be violated by nonverbal conduct, his conviction was solely based on his gestures at the window, and his nonverbal conduct is insufficient to support his conviction. While nonverbal conduct may be insufficient by itself, a series of cases explain that the entirety of the circumstances, including the offender’s subsequent conduct, must be considered to determine whether substantial evidence supports a violation of section 422.

         Defendant’s arguments about nonverbal conduct are based on Franz, supra, 88 Cal.App.4th 1426. In that case, defendant followed his former girlfriend home and assaulted her. There were two witnesses to the assault, and defendant also assaulted them. They called for help and the police arrived. An officer interviewed the two witnesses while defendant, who was not in custody, stood behind the officer. As the witnesses spoke to the officer, defendant looked directly at them, made hand gestures and said “shush, ” shook his head, and ran his hand across his throat. After the police left, defendant told the witnesses not to say anything. Defendant was convicted of violating section 422 based on his threat to the two witnesses. (at pp. 1436-1437.)

         Franz held that defendant’s conviction could not be based on nonverbal conduct, because section 422 requires the criminal threat to be “ ‘made verbally, ’ i.e., that defendant orally made some noise or sound that was capable of conveying meaning.” (Franz, supra, 88 Cal.App.4th at p. 1442.) Franz agreed with defendant that his “gestures, unaccompanied by verbal sound, do not qualify as verbal statements under section 422” and could not support his conviction for making a criminal threat. (Id. at p. 1439.)

         In reaching this holding, Franz reviewed other statutes and concluded that the Legislature knew how “to make a statute applicable to nonverbal communication, ” and the omission “of any reference to ‘conduct’ in section 422 suggests the Legislature did not intend for communicative conduct to be penalized in that statute.” (Franz, supra, 88 Cal.App.4th at p. 1440.) Franz acknowledged that Evidence Code 225 defined a “ ‘[s]tatement’ ” to include nonverbal conduct intended “ ‘as a substitute for oral or written verbal expression.’ ” (Id. at p. 1441.) However, Franz held the Evidence Code’s definition did not apply to the interpretation of section 422:

         “[W]hile it is true that Evidence Code section 225 provides that a ‘statement’ may mean nonverbal conduct, it is equally true that the Evidence Code applies, ‘[e]xcept as otherwise provided by statute….’ [Citations.] Here, as pertinent, section 422 expressly provides that the ‘statement’ must be ‘made verbally.’ The Penal Code definition controls. Indeed, because Evidence Code section 225 expressly refers to ‘nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression, ’ the Evidence Code statute further demonstrates that the Legislature knows how to define nonverbal conduct, as a means of communication, when it wants to.” (Franz, supra, 88 Cal.App.4th at p. 1441.)⁴

4 Although Franz does appraise legislative intent, it is easy to envision examples of unequivocal expressions that do not involve sounds or written words, but which still satisfy the essence of section 422. For example, a prosecution for a violation of section 422 could not occur under a strict view of Franz when the perpetrator makes a verbal threat, but the victim has no auditory function; when the perpetrator uses sign language to convey each word of a specific threat; when the perpetrator uses a drawing or painting to convey a specific and unequivocal threat; or when a driver gestures to another driver with a firearm or other deadly weapon during an act of road rage.

         Franz reviewed the entirety of the record and held defendant’s conviction was still supported by substantial evidence. Franz found defendant’s “shushing” noise, heard by at least one of the witnesses, “constitutes substantial evidence of a verbal ‘statement, ’ the import of which was amplified by the throat-slashing gesture to constitute a threat to kill if the victim talked to the police.” (Franz, supra, 88 Cal.App.4th at p. 1446.)

         In Solis, supra, 90 Cal.App.4th 1002 , the court examined the entirety of the circumstances to determine if defendant’s words and conduct provided substantial evidence of a violation of section 422. Defendant was convicted of violating section 422 after he left a series of threatening messages on his ex-girlfriend’s answering machine, said he was on his way to her home, and that he was going to set it on fire and kill her. About an hour after he left the messages, defendant set fire to his ex-girlfriend’s apartment by throwing an accelerant through her bedroom window. (Solis, supra, 90 Cal.App.4th at p. 1009.)

         Solis held that defendant’s conduct after he left the messages, when he actually set fire to her apartment building, could be considered in determining whether his telephone messages constituted a criminal threat.

         “[I]t is clear a jury can properly consider a later action taken by a defendant in evaluating whether the crime of making a terrorist threat has been committed. The fact that in those cases the verbal threat was vague or ambiguous whereas in this case the threats left by defendant on the answering machine were not ambiguous is not dispositive. The point is that all of the circumstances can and should be considered in determining whether a terrorist threat has been made. It therefore follows that the court … properly informed the jury that the threatening statement does not have to be the sole cause of the victim's fear and that a statement the victim does not initially consider a threat can later be seen that way based upon a subsequent action taken by a defendant….” (Solis, supra, 90 Cal.App.4th at p. 1014, italics added, fn. omitted.)

         The entirety of defendant’s actions was also considered in Brooks, supra, 26 Cal.App.4th 142, where defendant approached a robbery witness after she testified against a fellow gang member. Defendant grabbed her by the throat, put a gun to her head, told her not to testify again “ ‘[o]r else we’ll hurt you, ’ ” and said “ ‘[i]f you go to court and testify, I’ll kill you.’ ” (Id. at p. 144.) A few weeks later, defendant pushed her against a car, put a gun in her mouth, and threatened to kill her “ ‘right then and there.’ ” Defendant’s friend encouraged him to kill her, and defendant said he should do it. He didn’t fire, but again said he would kill her if she went to the courthouse. (Id. at p. 145.) Defendant was convicted of violating section 422, plus assault with a deadly weapon and dissuading a witness. (Ibid.)

         Brooks primarily addressed defendant’s contention that his threats did not violate section 422 because they were conditional that he would kill her if she testified again. (Brooks, supra, 26 Cal.App.4th at p. 145.) Brooks rejected this argument and held “[c]onditional threats are true threats if their context reasonably conveys to the victim that they are intended.…” (Id. at p. 149.) Brooks further held that even if defendant’s arguments about conditional threats were accepted, the entirety of the record demonstrated that he made an unconditional threat when he placed the gun into her mouth and said he was going to kill her “ ‘right then and there, ’ ” such that his conviction was supported by substantial evidence. (Id. at pp. 149-150.)

         C. Defendant’s verbal statements and conduct

         Defendant relies on Franz and argues that his actions at the window—when he made the slashing gesture with the knife and mouthed to Salas that “I will kill you”—are insufficient to constitute a violation of section 422 because Salas never heard his voice, and he never made a “verbal” threat within the meaning of the statute.

         In making this argument, defendant only focuses on his conduct when he stood at the window, gestured with the knife, and mouthed the words. As demonstrated in Solis and Brooks, the entirety of the circumstances, including defendant’s subsequent conduct, must be examined to determine whether there is substantial evidence to support a conviction under section 422 for making a criminal threat. (Solis, supra, 90 Cal.App.4th at p. 1014; Brooks, supra, 26 Cal.App.4th at pp. 149-150.)

         The entirety of the circumstances in this case demonstrates that defendant made a criminal threat to Salas. From the time that defendant returned to the clinic at 5:00 p.m. and demanded to be seen, and up to the moment of his arrest, he repeatedly yelled and cursed at Salas. When he returned to the clinic, he stood at the front desk for 10 to 15 minutes, he was angry and upset, and he repeatedly called Salas a “stupid white bitch.” Padilla, the receptionist, testified that defendant was yelling so loud that she could not hear anyone as she tried to answer the clinic’s telephone.

         It was in this context that defendant suddenly walked out of the clinic and went up to the window, where Salas, Padilla, and Dr. Taylor could see him. Salas testified defendant was still angry. He pulled the knife and scratched marks into the glass, and then started to spit at the window. Padilla testified that defendant was shouting and yelling as he scratched the glass with his knife, but Padilla could not remember what he was saying. Padilla testified defendant was still yelling when she became frightened and decided to step away from the window.

         Both Dr. Taylor and Salas saw defendant make the slashing gesture across his throat with the knife. Salas testified defendant looked directly at her as he made that gesture, and then pointed the knife at her and mouthed the words, “I will kill you.” Salas did not hear his voice, but it is reasonable to infer that defendant was still yelling as he gestured with the knife and mouthed words at Salas.

         As in Franz, however, there is far more to this case than defendant’s gestures at the window. And as in Solis and Brooks, defendant’s subsequent words and actions must be considered because the incident was not over when defendant walked away from the window. Salas was still on the telephone with the 911 operator when Officer Unruh arrived at the scene, and she was afraid the officer did not see defendant walking away from the clinic. However, Unruh apprehended defendant almost immediately as he crossed the street and tried to quickly walk away from the clinic. Defendant was still yelling and screaming obscenities. A short time later, Salas went outside, defendant saw her, and there was no longer any doubt about what he might have been screaming earlier when he stood at the window. As Unruh placed defendant into custody, defendant repeatedly cursed Salas and verbally and unconditionally threatened to kill her and blow up the clinic.

         While defendant’s oral statements and gestures were not simultaneous, the uncontradicted evidence showed they occurred very close in time and place. Defendant was yelling at Salas while he was at the reception desk, Padilla testified he was still yelling when he was standing at the window, and Unruh testified he was yelling obscenities and threatened to kill Salas as he was being arrested. As in Brooks, any doubts as to defendant’s intent were eliminated by his unconditional verbal threats to Salas, which he yelled at her within minutes after walking away from the window. We find the entirety of the circumstances supports defendant’s conviction.

         D. Immediacy and the victim’s sustained fear

         Defendant argues that even if his conviction was partially based on the verbal threats he made to Salas as he was being arrested, those threats could not have reasonably caused Salas to be in fear because he “was handcuffed and in police custody” at the time, and those threats “would not invoke fear in a reasonable person.”

         Defendant’s arguments about the impact of his custodial status implicate different aspects of section 422. Section 422 requires the threat to convey a gravity of purpose and an immediate prospect of execution of the threat, but it does not require an immediate ability to carry out the threat. (People v. Wilson (2010) 186 Cal.App.4th 789, 807 (Wilson).) “To constitute a criminal threat, a communication need not be absolutely unequivocal, unconditional, immediate, and specific. The statute includes the qualifier ‘so’ unequivocal, etc., which establishes that the test is whether, in light of the surrounding circumstances, the communication was sufficiently unequivocal, unconditional, immediate, and specific as to convey to the victim a gravity of purpose and immediate prospect of execution. [Citation.]” (In re Ryan D. (2002) 100 Cal.App.4th 854, 861.)

         In addition, section 422 requires the victim “reasonably to be in sustained fear” for his or her own safety or the safety of his or her family. (§ 422.) “A victim must actually be in sustained fear, and the sustained fear must also be reasonable under the circumstances.” (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140.) “ ‘[S]ustained’ … means a period of time that extends beyond what is momentary, fleeting, or transitory.… The victim’s knowledge of defendant’s prior conduct is relevant in establishing that the victim was in a state of sustained fear. [Citation.]” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.)

         Several cases have held that defendants violated section 422 when they made threats while they were about to be arrested or were already in custody. As we have already explained, Franz involved a situation where defendant threatened two witnesses while an officer was present. Defendant argued there was insufficient evidence of immediacy because the officer was present when defendant made the “shush” sound and gestured across his throat at the witnesses, defendant was later taken into custody, and the witnesses never saw him again until the court proceedings. (Franz, supra, 88 Cal.App.4th at p. 1449.) Franz rejected this argument and held defendant’s threats were sufficiently immediate because “at the time of the threat the [witnesses] did not know when they would next see defendant. The immediacy factor was present in the surrounding circumstances that defendant was in a rage.… Although the officer was present when defendant made the threat, the threat and surrounding circumstances were a reminder that the officer would not always be there to protect the [witnesses].” (Ibid.)

         In Wilson, supra, 186 Cal.App.4th 789, this court found substantial evidence to support defendant’s conviction for violating section 422 based on a threat made in a custodial setting. Defendant was a prison inmate who was scheduled to be released in 10 months. He repeatedly told a correctional officer that he had killed officers, he had done it before and he would do it again, that he could “ ‘find anybody and blast them, ’ ” he was going to get out in 10 months, and he was going to find the officer and “ ‘blast’ ” him. Defendant used his hands to simulate the action of guns as he threatened to “ ‘blast’ ” the officer. (Id. at pp. 797-798, italics omitted.)

         Wilson held defendant’s threats were sufficiently immediate and specific, even though he was a custodial inmate, because defendant declared he had a history of finding and killing officers, he would “ ‘blast’ ” the officer when he was released in 10 months, he gave the threat “specificity, immediacy, and a date certain, ” and he “effectively made an appointment to kill [the officer] at his earliest possible opportunity—he would perform the act the instant he was set free.” (Id. at pp. 814, 815-816.)

         Finally, in People v. Gaut (2002) 95 Cal.App.4th 1425 (Gaut), defendant left threats on the victim’s answering machine that he was going to kill her. The victim obtained a restraining order and defendant was taken into custody for violating that order. While he was in jail, he continued to leave death threats on her answering machine, and said that he was going to be released within a few days after his parole hearing. Defendant was convicted of violating section 422 based on the telephonic threats he made while he was in custody. (Id. at pp. 1428-1431.)

         Gaut rejected defendant’s argument that his telephonic threats did not convey an immediate prospect of execution since he was incarcerated and unable to carry out the threats. (Gaut, supra, 95 Cal.App.4th at p. 1431.) Gaut noted that defendant had a lengthy history of domestic violence against the victim, in which he both threatened violence and actually assaulted her. Based on that history, it was reasonable for the victim to fear “that defendant would also follow through on the threats he made from jail based on the totality of the circumstances.” (Ibid.)

         In the instant case, as in Franz, Wilson, and Gaut, defendant’s imminent custodial status did not undermine the immediacy of his threat to Salas, or render her fear unreasonable. Defendant was angry, irate, and yelling from the time he stood at the front desk to when he looked through the window, and continued doing so when he was taken into custody outside the clinic. Officer Unruh’s intervention did not diminish the threat but only delayed its potential execution. Salas’s fear was objectively and subjectively reasonable and it was not dispelled by defendant’s arrest. As in Franz, defendant’s threat and the surrounding circumstances “were a reminder that the officer would not always be there” to protect Salas. (Franz, supra, 88 Cal.App.4th at p. 1449.)

         II. Defendant’s threat to Officer Lowery

         Defendant next contends that the court improperly admitted evidence about the statements he made as he was being arrested by Officer Unruh, when he threatened to kill Officer Lowery. Defendant argues his threats to Lowery were inadmissible propensity evidence because he was never charged with committing any crimes against Lowery.

         A. Background

         During the course of trial, the prosecutor moved to introduce the statements and threats defendant made to Salas and Lowery as he was being taken into custody outside the clinic. Defense counsel argued defendant’s threats to Lowery were inadmissible because he was not charged with threatening Lowery.

         The court found defendant’s contemporaneous statements outside the clinic, to both Salas and Lowery, were relevant and probative of “defendant’s state of agitation and therefore probative of the likelihood or corroborative of the fact that a threat was made.” The court further held defendant’s language outside the clinic was no more offensive than his other statements and the threat he “mouthed” to Salas.

         B. Analysis

         A trial court’s decision to admit or exclude evidence is reviewable for an abuse of discretion. The court’s ruling will not be disturbed in the absence of a showing that it exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a miscarriage of justice. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)

         We conclude that the trial court did not abuse its discretion in admitting defendant’s contemporaneous threats to Officer Lowery. While defendant was not charged with threatening Lowery, the evidence was still relevant and probative of defendant’s agitated state and corroborative of the fact that defendant was making criminal threats. Even if the court should have excluded the evidence, however, the error was not prejudicial. The erroneous admission of evidence is tested under the standard or prejudice set forth in People v. Watson (1956) 46 Cal.2d 818, 836, and warrants reversal only if it is reasonably probable that a more favorable result would have reached a different result if the challenged evidence had been excluded. (People v. Scheid (1997) 16 Cal.4th 1, 21.) It is not reasonably probable that a more favorable result would have occurred if the court had excluded defendant’s threats to Officer Lowery. The jury had already heard the evidence about defendant’s irate and angry conduct when he returned to the clinic at 5:00 p.m., that he gestured toward Salas with the knife, made a slashing motion from ear to ear, mouthed the words “I will kill you, ” and then yelled at her that he would kill her and blow up the clinic. His threats toward Lowery were not prejudicial in comparison to his other statements and actions. It is not reasonably probable the jury would have reached a different result if the court had excluded evidence of defendant’s threats to Lowery.

         III. The unanimity instruction was not required

         Defendant asserts the court should have given the unanimity instruction as to the single charge of committing a criminal threat because he made “several separate and distinct threats” against Salas—when he gestured at the window and mouthed certain words, and when he verbally threatened to kill her as he was being arrested—and the prosecution never clarified which threat was the basis for the charged offense.

         As we will explain, defendant’s arguments are meritless based on a review of the court’s discussion of the instructions with the parties, and the parties’ closing arguments, which reflect the prosecutor clearly relied on the “continuous course of conduct” exception to the unanimity instruction to prove the charged offense.

         A. Unanimity

         A defendant is entitled to a unanimous finding that he is guilty of a specific crime. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) “Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.]” (Ibid.) “This requirement of unanimity as to the criminal act ‘is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.’ [Citation.]” (Ibid.)

         However, the unanimity instruction is not required “if the case falls within the continuous-course-of-conduct exception, which arises ‘when the acts are so closely connected in time as to form part of one transaction’ [citation], or ‘when … the statute contemplates a continuous course of conduct of a series of acts over a period of time’ [citation]. There also is no need for a unanimity instruction if the defendant offers the same defense or defenses to the various acts constituting the charged crime. [Citation.]” (People v. Jennings (2010) 50 Cal.4th 616, 679.)

         B. The instructional phase

         During the instructional phase, the court and the parties discussed whether the unanimity instruction should be given as to the single count of making a criminal threat against Salas. The court noted the unanimity instruction was not required in a case “when the acts are so closely connected that they form part of one in the same transaction and thus one offense.” The court believed the charged offense was based on defendant’s conduct when he gestured with the knife across his throat and mouthed certain words to Salas. The court further believed it would be unfair to now base the charge on defendant’s statements as he was being arrested, when he yelled that he would kill Salas and blow up the clinic.

         The prosecutor stated the unanimity instruction was not required, and clarified that he intended to argue “this was one continuous course of conduct, that there was no cooling-down period and that [defendant] continued to act in a loud, threatening, rude, cursing manner. The behavior that started inside the clinic continued to the window, continued after he was arrested and during the time that Ms. Salas walked outside and was threatened again. That is all one continuous course of conduct that I intend to argue.”

         Defense counsel argued there was a “cooling-off” period between the time that defendant was standing at the reception desk, then standing at the window, and finally arrested outside, and the “continuous course of conduct” exception only applied to specific sex crimes. The court explained there were two aspects to continuous course of conduct exception, and the prosecutor’s election in this case covered the first aspect of how the offense was committed, while the second aspect of the exception was based on the definitions of certain sex offenses.⁵

5 The court’s comments referred to the well-settled principle that the continuous course of conduct exception “ ‘arises in two contexts. The first is when the acts are so closely connected that they form part of one and the same transaction, and thus one offense. [Citation.] The second is when... the statute contemplates a continuous course of conduct of a series of acts over a period of time. [Citation.] [¶] ‘This second category of the continuous course of conduct exception has been applied to a limited number of varying crimes, ’” including specific sexual abuse offenses. (People v. Avina (1993) 14 Cal.App.4th 1303, 1309; People v. Culuko (2000) 78 Cal.App.4th 307, 325.) As we will explain, post, the court correctly relied on the first aspect of the continuous course of conduct exception to deny the unanimity instruction in this case.

         The court decided it was not necessary to give the unanimity instruction and found the charged offense was based on a continuous course of conduct. However, the court asked the prosecutor to clarify that the jury could not convict defendant of the charged offense based solely on defendant’s statements as he was being arrested.

         C. Closing arguments

         In his closing argument, the prosecutor argued that defendant committed one continuous course of conduct “from the time he came back to the clinic after he destroyed his chart. He was loud, rude, angry and yelling at the staff there, ” referring to Salas and Padilla. “At no point was there a cooling off period from that time to the time he walks outside, … pulls out the knife and starts scratching on the window.” The prosecutor further argued that when defendant walked away from the clinic, he was immediately stopped by the police, Salas walked outside, and defendant was “still making threats to her life.”

         “So there are instances of multiple threats here, but my theory of the case is the main threat is the one at the window where he took out the knife, put it across his throat and said, I am going to kill you. But she couldn’t hear the words because the window was in the way. That’s the main threat. [¶] The other threat is just conduct following up the other threat.”

         The prosecutor asserted that the law “does not say that [the victim] has to hear” the threat, but admitted that section 422 required defendant to make “the threat orally.” The prosecutor cited to Padilla’s testimony, that defendant was yelling so loud that she couldn’t handle the clinic’s telephone calls, and argued that defendant made an oral threat at the window even though Salas did not hear defendant’s actual words. The prosecutor argued defendant intended his words and actions to be considered as a threat:

         “The reason he did it, every action he took while in that office, while outside that office, while he walked across the street and when he was brought back and he mentioned it again to Ms. Salas, I am going to kill you, the reason that that whole course of events happened was because [defendant] wanted to threaten her. He intended to threaten her and he did threaten her.” (Italics added.)

         In his closing argument, defense counsel argued that while defendant may have been rude and loud, there was no evidence that he threatened Salas. Salas did not have any training or experience to read lips, and “[w]ho knows what he said.” Defense counsel speculated that when defendant gestured with the knife, he was not threatening anyone and “[h]e might have been trying to kill himself.…” Defense counsel argued that while defendant acted “weird” at the clinic, he never intended to make a threat, and he never walked back into the clinic to confront and threaten Salas. Defense counsel also challenged Salas’s claim of fear, and asserted that she did not sound frightened on the tape recording of her final 911 call.

         In rebuttal, the prosecutor replied that the entirety of the circumstances showed that defendant was angry and upset, and supported Salas’s belief that defendant said, “I’ll kill you” through the window. The prosecutor further argued that defendant displayed consistent behavior when he repeatedly threatened Salas as he was being arrested, and he was not trying to kill himself.

         “… And when Ms. Salas walked back outside the clinic [defendant’s] behavior was consist[ent] … every step of the way. I’m going to kill you. I’m going to kill you. I’m going to kill you.… [¶] When you look at all the circumstances and you combine the gesture with the throat, with the words that are coming out of his mouth and what he’s consistently saying not only to [Salas] but to everybody.… [¶]…[¶] After he’s arrested or detained … he tells Ms. Salas, I’m going to kill you.”

         D. Analysis

         Defendant contends the court should have given the unanimity instruction because the jury could have relied on different acts and found him guilty based upon either his conduct at the window or his verbal threat to Salas as he was being arrested by Unruh. As we have explained, however, the unanimity instruction is not required “if the case falls within the continuous-course-of-conduct exception, which arises ‘when the acts are so closely connected in time as to form part of one transaction’ [citation], or ‘when … the statute contemplates a continuous course of conduct of a series of acts over a period of time’ [citation]. There also is no need for a unanimity instruction if the defendant offers the same defense or defenses to the various acts constituting the charged crime. [Citation.]” (People v. Jennings, supra, 50 Cal.4th at p. 679.)

         As applied to the instant case, the trial court correctly found that the entirety of defendant’s statements and actions toward Salas  at the reception desk, through the window, and as he was being arrested  fell within the first aspect of the continuous course of conduct exception, because the incidents were so closely connected that they formed part of a single transaction. (People v. Sanchez (2001) 94 Cal.App.4th 622, 631.)⁶

6 While the statutory definition of the offense of committing a criminal threat does not fall within the statutory aspect of the continuous course of conduct exception (People v. Salvato (1991) 234 Cal.App.3d 872, 882-883), that does not preclude a finding that acts constituting the crime were so closely connected that they formed part of one and the same transaction. (People v. Avina, supra, 14 Cal.App.4th at p. 1309.)

         Defendant argues that the court erroneously found the “continuous course of conduct” exception applied because there were “two distinct and separate events occurring in different places, ” and “two separate incidents of threatening behavior.” While defendant’s statements and gestures were not simultaneous, the uncontradicted evidence showed they occurred very close in time and place. As we have explained, a defendant’s subsequent words and actions can be considered in evaluating whether the crime of making a criminal threat was committed, and “a statement the victim did not initially consider a threat can later be seen that way.…” (Solis, supra, 90 Cal.App.4th at p. 1014.)

         This case is in stark contrast to People v. Melhado (1998) 60 Cal.App.4th 1529 (Melhado), which held that the continuous-course-of-conduct exception did not apply to the defendant’s words and actions for a violation of section 422 because there threats were made during separate and discrete incidents. Defendant had trouble paying his car repair bill and became angry at the victim, the repair shop owner. At 9:00 a.m., defendant told the victim that he would “ ‘blow [him] away’ ” and would get a grenade, and then left the shop. At 11:00 a.m., defendant returned, showed a grenade to the victim, repeated his threats, frightened the victim and some employees, and left the shop. At 4:00 p.m., defendant again returned and he was arrested. (Id. at pp. 1532-1534.) Defendant was charged with violating section 422, and the prosecutor advised the court that the charge was based on the 11:00 a.m. event, and he only mentioned the other events to show the seriousness of defendant’s threat and the reasonableness of the fear it induced. However, the jury was never told of this election. (Id. at pp. 1535-1536.)

         Melhado held the “9 a.m. event” was sufficient to establish liability, but the court’s failure to give the unanimity instruction was reversible error because there were two distinct episodes or threats, separated both by the lapse of time and defendant’s acts of leaving the repair shop after issuing the first threat, and then returning and repeating the threat. “[W]e cannot say that, beyond a reasonable doubt, each of the 12 jurors agreed unanimously” on the same event, the omission of a unanimity instruction was reversible error. (Melhado, supra, 60 Cal.App.4th at p. 1539.)

         In the instant case, defendant was at the clinic at two separate times—2:00 p.m., when he tried to destroy his medical chart and left, and 5:00 p.m., when he returned and his visit culminated in his arrest outside the clinic. In contrast to Melhado, however, the prosecutor did not rely on any of defendant’s acts when he was at the clinic at 2:00 p.m. as the basis for the charged offense of committing a criminal threat. If the prosecutor had done so, the unanimity instruction would have been required because the 2:00 p.m. and 5:00 p.m. incidents were clearly separated by a significant lapse of time and defendant’s acts of leaving and then returning. Instead, the entirety of the prosecutor’s arguments focused entirely on defendant’s conduct when he returned to the clinic at 5:00 p.m., stood at the front desk, looked through the window, and then tried to walk away from the clinic. All of these events occurred within a very short period, and defendant remained at the clinic during the entirety of the time. The fact that he walked in and out of the front door, and attempted to cross the street, does not constitute a sufficient separation in time and place to have required the unanimity instruction.

         Defendant further argues the prosecutor never made the election clear in closing argument and erroneously advised the jury that defendant could be convicted solely based on his “nonverbal” conduct at the window. As set forth ante, however, the prosecutor’s closing argument was consistent with the established law that in proving a violation of section 422, “a jury can properly consider a later action taken by a defendant in evaluating whether the crime of making a terrorist threat has been committed, ” and that “a statement the victim does not initially consider a threat can later be seen that way based upon a subsequent action taken by a defendant.…” (Solis, supra, 90 Cal.App.4th at p. 1014.)

         IV. The court was not required to instruct on attempt

         Defendant contends the court had a sua sponte duty to instruct on the lesser included offense of attempting to make a criminal threat because the charged offense was solely based on his “nonverbal” conduct at the window, and section 422 cannot be violated by nonverbal conduct.

         “[A] trial court must instruct a criminal jury on any lesser offense ‘necessarily included’ in the charged offense, if there is substantial evidence that only the lesser crime was committed, ” but not when there is no evidence the offense was less than that charged. (People v. Birks (1998) 19 Cal.4th 108, 112; People v. Koontz (2002) 27 Cal.4th 1041, 1085; People v. Barton (1995) 12 Cal.4th 186, 194-195.)

         Generally, an attempt to commit a crime is a lesser included offense of that completed crime, and an attempted criminal threat is a criminal offense. (Toledo, supra, 26 Cal.4th at p. 230; People v. Anderson (1979) 97 Cal.App.3d 419, 424-425.)

         “[A] defendant properly may be found guilty of attempted criminal threat whenever, acting with the specific intent to commit the offense of criminal threat, the defendant performs an act that goes beyond mere preparation and indicates that he or she is putting a plan into action.” (Toledo, supra, 26 Cal.4th at p. 230.)

         “A variety of potential circumstances fall within the reach of the offense of attempted criminal threat. For example, if a defendant takes all steps necessary to perpetrate the completed crime of criminal threat by means of a written threat, but the crime is not completed only because the written threat is intercepted before delivery to the threatened person, the defendant properly may be found guilty of attempted criminal threat. Similarly, if a defendant, with the requisite intent, orally makes a sufficient threat directly to the threatened person, but for some reason the threatened person does not understand the threat, an attempted criminal threat also would occur. Further, if a defendant, again acting with the requisite intent, makes a sufficient threat that is received and understood by the threatened person, but, for whatever reason, the threat does not actually cause the threatened person to be in sustained fear for his or her safety even though, under the circumstances, that person reasonably could have been placed in such fear, the defendant properly may be found to have committed the offense of attempted criminal threat. In each of these situations, only a fortuity, not intended by the defendant, has prevented the defendant from perpetrating the completed offense of criminal threat itself.” (Toledo, supra, 26 Cal.4th at p. 231, first italics in original, second italics added.)

         In the instant case, defendant initially requested an instruction on an attempted criminal threat as a lesser included offense. The court subsequently stated that defendant had withdrawn his request for this instruction. The court further stated there was “no substantial evidence that the alleged victim didn’t take this seriously.” The court properly rejected giving an attempt instruction on this basis because there was overwhelming evidence that Salas’s sustained fear was both objectively and subjectively reasonable.

         On appeal, defendant slightly changes his argument and contends the court had a sua sponte duty to instruct on attempt because there was no evidence defendant made a verbal threat to Salas, but there was evidence he “might have attempted to communicate the threat” if he tried to verbally threaten Salas through the window but she could not hear his words.

         Defendant’s argument is based on the premise that the charged offense was solely based on his “nonverbal” conduct at the window, and that his conduct was legally insufficient to constitute the crime of making a criminal threat. We have already explained that the unanimity instruction was not required in this case. We also note that defense counsel’s closing argument posited the theory that there was no evidence defendant threatened Salas, defendant might have been trying to kill himself when he pulled the knife at the window, Salas did not have any training or experience to read lips, and “[w]ho knows what he said.”

         The trial court did not have a sua sponte duty to instruct on attempt because there was no evidence the offense was less than that charged. The prosecutor clearly advised the court that the charged offense of making a criminal threat was based on “one continuous course of conduct” from his time at the front desk, to the window, to when he was arrested. In contrast, defendant argued there was no evidence he committed any type of threat or he had the specific intent to threaten Salas. We thus conclude that based on the nature of the evidence, the court did not have a sua sponte duty to instruct on attempt.

         V. The court was not required to give CALCRIM No. 3428

         Defendant next contends the court improperly refused to give his requested instruction, CALCRIM No. 3428, as to whether he suffered from a mental disease, defect, or disorder that prevented him from forming the specific intent to commit the charged offense. Defendant argues the instruction was supported by the trial testimony of Salas and Dr. Taylor that defendant had a mental health problem and he was taking medication for it.

         A. CALCRIM No. 3428

         Defendant requested the court to give CALCRIM No. 3428, a pattern instruction which states in relevant part:

         “You have heard evidence that the defendant may have suffered from a mental (disease[, ]/ [or] defect[, ]/ [or] disorder). You may consider this evidence only for the limited purpose of deciding whether, at the time of the charged crime, the defendant acted [or failed to act] with the intent or mental state required for that crime.

         “The People have the burden of proving beyond a reasonable doubt that the defendant acted [or failed to act] with the required intent or mental state, specifically: <insert specific intent or mental state required.…> If the People have not met this burden, you must find the defendant not guilty of <insert name of alleged offense>.…” (Italics in pattern instruction.)

         As we will further explain, post, the court does not have a sua sponte duty to instruct the jury with the substance of CALCRIM No. 3428 (formerly CALJIC No. 3.32). (People v. Saille (1991) 54 Cal.3d 1103, 1119 (Saille).) The court must give the instruction only when requested and when substantial evidence supports the defense, and expert medical testimony has been found necessary to establish such substantial evidence. (People v. Panah (2005) 35 Cal.4th 395, 484 (Panah); People v. Moore (2002) 96 Cal.App.4th 1005, 1115-1116, 1117 (Moore).)

         B. Trial evidence

         At trial, there was no expert or specific medical evidence introduced as to whether defendant suffered from a particular mental health problem at the time he committed the charged offense. Salas testified she had previously seen defendant at the clinic, but he had never acted inappropriately. She had never read defendant’s chart, and she only knew that he was at the clinic to get medication. Salas testified: “I knew he had some mental instability and I knew he would go [to the clinic] to get medications, but I never knew what type of medication or what he was diagnosed with.”

         During Salas’s first call to the police, after defendant destroyed his medical chart, she told the 911 operator that defendant was “mentally unstable.” At trial, Salas said she did not know why she said that, and explained she had never reviewed defendant’s medical records.

         Salas testified that when defendant returned to the clinic, “he asked to be seen so that he can get medication.” Salas did not know if defendant was taking any medication, and defendant did not say what medication he wanted. As defendant cursed Salas and the receptionist, he said that it was “a bunch of shit [and] that he needed to be seen, that he needed to get his medications.” Defendant said the information in the chart was incorrect, and that “he was not schizophrenic, that’s a western disease [and] just kept going on and on.”

         Dr. Taylor testified he had never seen or treated defendant, and explained the clinic did not treat mental health patients but offered follow-up care to make sure they were taking their medications. Dr. Taylor noticed defendant when he was pacing in and out of the examination room. Defendant was agitated and mumbling, but he was not saying anything coherent. Dr. Taylor did not testify to any opinions about defendant’s mental health status.

         C. Instructions

         Defendant requested CALCRIM No. 3428, mental impairment as a defense to a specific intent crime. The court questioned whether the instruction could be given in the absence of evidence from a mental health expert as to whether defendant had a mental impairment or disease. Defense counsel argued the testimony from Salas and Dr. Taylor was sufficient to support the instruction because they discussed defendant’s mental state, medication, and conduct at the clinic.

         The prosecutor pointed out there was no evidence as to whether defendant suffered from a specific mental health impairment, and whether such an impairment affected defendant’s ability to form specific intent to commit a criminal threat. The prosecutor argued the witnesses made vague references to defendant’s mental instability, and that he was taking medication, but there was no evidence that defendant suffered from a mental disease that would have prevented him from forming special intent, pursuant to the instruction.

         The court denied defendant’s request for CALCRIM No. 3428. The court acknowledged that expert medical testimony might not be necessary to support the instruction, but “there has to be some showing of mental disease disorder or impairment” to give the instruction, and there was no direct or circumstantial evidence to support the instruction.

         While the court declined to give CALCRIM No. 3428, it gave CALCRIM No. 225, as to whether defendant had specific intent to commit the offense. CALCRIM No. 225 stated:

         “The People must prove not only that the defendant did the acts charged, but also that he acted with a particular intent. The instruction for the crime explains the intent required.

         “Intent may be proved by circumstantial evidence. [¶] Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.

         “Also, before you may rely on circumstantial evidence to conclude that the defendant had the required intent, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required intent. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions supports a finding that the defendant did have the required intent and another reasonable conclusion supports a finding that the defendant did not, you must conclude that the required intent was not proved by the circumstantial evidence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.”

         D. The jury’s question and supplemental closing arguments

         During deliberations, the jury sent a note to the court and asked if it could “consider whether the defendant appeared to be so mentally agitated or disturbed that his ability to have the necessary intent to threaten is negated?”

         The court believed the jury was “off on a far-out tangent for which there is no evidence, ” but did not want to reinstruct the jury on a point favorable to the prosecution. The court offered to advise the jury that it could only consider the evidence before it and draw reasonable inferences from that evidence. The court also offered to allow the parties to reopen their closing arguments on this issue. Defense counsel agreed with the court’s suggestion.

         Thereafter, the court advised the jury pursuant to a special instruction, that the jury could only consider the evidence before it, and draw reasonable inferences from that evidence, but it could not speculate. The court explained the parties would be allowed to present brief supplemental arguments about the special instruction.

         The prosecutor argued to the jury that there was no evidence that defendant was “mentally agitated, ” and any evidence about defendant’s “possible mental illness” was “tangential at best.” The prosecutor acknowledged there was a reference to “a possible mental illness, schizophrenia, ” but there were no witnesses or evidence as to the definition of that mental illness, whether defendant had that mental illness, and how it might have affected him.

         In his argument, defense counsel asserted there was “a plethora” of evidence about defendant’s mental health and cited to the testimony of Salas and Dr. Taylor. “The fact that you have this question … alone confirms there is doubt, reasonable doubt.”

         E. Analysis

         Defendant argues the court should have granted his request for CALCRIM No. 3428 on mental disease, and renews his trial argument that the testimony of Salas and Dr. Taylor provided substantial evidence to support the instruction.

         “Evidence of mental disease, mental defect, or mental disorder shall not be admitted to show or negate the capacity to form any mental state … with which the accused committed the act. Evidence of mental disease, mental defect, or mental disorder is admissible solely on the issue of whether or not the accused actually formed a required specific intent, premeditated [or] deliberated....” (§ 28, subd. (a).) The Legislature enacted this statute as part of its abolishment of the diminished capacity defense. (Saille, supra, 54 Cal.3d at p. 1111.)

         A trial court does not have a sua sponte duty to instruct the jury with the substance of CALCRIM No. 3428 (formerly CALJIC No. 3.32). (Saille, supra, 54 Cal.3d at p. 1119.) “[W]ith the abolition of the mental disease/diminished capacity doctrine, ” the mental disorder instruction became a “pinpoint instruction[ ]” that the court must give “only on request where the evidence supports the defense theory.” (People v. Ervin (2000) 22 Cal.4th 48, 90-91 [discussing CALJIC No. 3.32, predecessor to CALCRIM No. 3428].) Thus, the court must give the instruction only when requested and when substantial evidence supports the defense. (Panah, supra, 35 Cal.4th at p. 484; Moore, supra, 96 Cal.App.4th at pp. 1115-1116.)

         Mental illness or defect is a medical diagnosis requiring expert evidence about the defendant’s mental state at the time of the commission of the crime. (People v. Kelly (1992) 1 Cal.4th 495, 540; Moore, supra, 96 Cal.App.4th at pp. 1116-1117; Panah, supra, 35 Cal.4th at p. 485.) “Expert medical testimony is necessary to establish a defendant suffered from a mental disease, mental defect, or mental disorder because jurors cannot make such a determination from common experience. [Citation.]” (Moore, supra, 96 Cal.App.4th at p. 1117.) “The cases we have found that approve the giving [of the instruction] have all done so where expert medical testimony was adduced on the question of defendant’s mental disease, etc. [Citations.]” (Ibid.)

         For example, in Panah, supra, 35 Cal.4th 395, the only evidence in support of defendant’s request for the mental disorder instruction was from an emergency physician, who testified that defendant was psychotic, agitated, delusional, and under the influence of controlled substances the day after the crime. However, witnesses who saw the defendant in the interim between the crime and the emergency room visit testified he interacted with them with no appearance of being under the influence of any substance. (Id. at pp. 484-485.) Panah held the physician’s testimony was insufficient to support the instruction where, at best, the evidence showed “that defendant may have suffered from long-standing latent psychosis and, at some point, his condition deteriorated. This does not constitute evidence of defendant’s mental state at the time of the commission of the crime.” (Id. at p. 485; see also Moore, supra, 96 Cal.App.4th at pp. 1116-1117 [mental impairment instruction not supported by evidence when medical expert did not examine or evaluate defendant, and only testified generally as to the impact of rock cocaine on chronic users].)

         In contrast, People v. Smithey (1999) 20 Cal.4th 936, held the mental disorder instruction was properly given, when three experts examined and tested the defendant, and concluded he had organic brain damage, a generally diffused brain dysfunction, and mild mental retardation. The trial evidence also showed defendant suffered from “classic amphetamine psychosis syndrome, ” and defendant had amnesia about the day of the crime. The experts testified that defendant would not have committed the crime if he had not suffered from these mental disorders. (Id. at pp. 955-956.) Based on this evidence, the court properly instructed the jury that it could consider evidence of mental disease, mental defect, mental disorder, or intoxication for the purpose of determining whether defendant formed the required mental state. (Id. at pp. 969, 986-989.)

         In this case, as in Panah, the court was not required to instruct on CALCRIM No. 3428 because defendant did not introduce any medical, psychological, or psychiatric evidence as to whether defendant suffered from a specific mental health problem at the time he committed the charged offense, if he was taking certain medications, and whether his purported mental health impaired his ability to form the specific intent to commit a criminal threat against Salas.

         Defendant asserts that independent expert opinions were not necessary in this case because both Dr. Taylor and Salas testified that defendant had mental health issues. Even assuming that lay opinion testimony could have sufficiently supported CALCRIM No. 3428, however, the testimony of the witnesses in this case merely established that defendant may have suffered from some type of mental health issue and he might have been receiving medication. Salas thought defendant had been to the clinic before for medication, but she had never read his medical chart and did not know if he was diagnosed with any type of mental health problem. Dr. Taylor testified as a percipient witness to defendant’s disruptive conduct at the clinic rather than as an expert about defendant’s possible mental health issues. Dr. Taylor had never seen defendant prior to this incident, he had never reviewed his medical chart, and he had no idea about his actual mental health condition or whether he was taking any medications. While Salas and Taylor testified that defendant engaged in certain disruptive behavior and conduct, they never offered any connection between defendant’s behavior and whether he had some type of mental disorder. Their testimony was insufficient to support the instruction as to whether defendant had a mental defect at the time of the crime. (Panah, supra, 35 Cal.4th at p. 485; Moore, supra, 96 Cal.App.4th at pp. 1116-1117.)

         Defendant argues the court should have given the instruction because it was concerned about defendant’s mental competence, since it previously suspended criminal proceedings pursuant to section 1368, and denied his postverdict motion to represent himself because it found defendant was not competent to do so. As we will discuss in issue VI, post, the court declared doubts about defendant’s competence on two occasions prior to trial, and suspended criminal proceedings. After the court reviewed the experts’ reports, however, the court found defendant was competent and reinstated criminal proceedings. At the scheduled sentencing hearing, the court again declared a doubt about defendant’s competence and suspended the proceedings. However, the court again found defendant competent after it reviewed the experts’ reports. It reinstated criminal proceedings but refused to allow defendant to represent himself.

         While the court may have been concerned about defendant’s competence to stand trial and/or represent himself, defendant never cited to the section 1368 reports when he requested the pinpoint instruction, and never introduced any independent evidence as to whether he suffered from a mental impairment that would have prevented defendant from forming specific intent.⁷ There was no evidence to support CALCRIM No. 3428.

7 As we will explain in section VI, post, the section 1368 psychiatric reports on defendant’s competency suggest a reason why defense counsel may not have pursued independent evidence about defendant’s mental health. There were conflicting opinions in the various reports as to whether defendant suffered from an actual mental health problem or whether he was malingering, and defendant admitted that he had been abusing his prescribed medications just before he was arrested in this case and he could not get his prescriptions refilled for that reason.

         VI. The court’s denial of defendant’s motion to represent himself

         As we have mentioned, on two occasions prior to trial, the court declared doubts about defendant’s competency, suspended criminal proceedings, and ordered section 1368 evaluations. The court subsequently found defendant was competent to stand trial. At the scheduled sentencing hearing, the court again declared a doubt about defendant’s competency pursuant to section 1368, and subsequently found he was competent and reinstated criminal proceedings. However, defendant then requested to represent himself at the sentencing hearing pursuant to Faretta. The court denied the motion and found that while defendant was competent to stand trial, he was not competent to represent himself.

         Defendant now contends the court erroneously denied his Faretta motion because he was competent to stand trial and the same standard applies to ruling on his competency to represent himself pursuant to Faretta. The Attorney General points out that in Indiana v. Edwards (2008) 554 U.S. 164 (Edwards), the United States Supreme Court clarified that even if a defendant is competent to stand trial, a state court may rely on a higher standard to find a defendant is not competent to represent himself and deny a Faretta motion.

         The California Supreme Court has not yet addressed the application of Edwards to Faretta motions, and whether trial courts may rely on a different competency standards to determine whether a defendant can stand trial and whether a defendant can represent himself. In any event, we will review the well-settled principles for Faretta motions, the prior reports about defendant’s competency, and the trial court’s findings at the sentencing hearing, and conclude the court properly denied defendant’s Faretta motion.

         A. Faretta

         A criminal defendant has a constitutional right to counsel at all critical stages of a criminal prosecution, including sentencing. (People v. Doolin (2009) 45 Cal.4th 390, 453 (Doolin).) However, a defendant also has the constitutional right to waive his right to counsel and represent himself upon a timely and unequivocal request. (Faretta, supra, 422 U.S. at pp. 810, 819, 835; People v. Marshall (1997) 15 Cal.4th 1, 20.)

         “A trial court must grant a defendant’s request for self-representation if the defendant unequivocally asserts that right within a reasonable time prior to the commencement of trial, and makes his request voluntarily, knowingly, and intelligently. [Citations.]” (People v. Lynch (2010) 50 Cal.4th 693, 721 (Lynch).)

         A sentencing hearing is a separate proceeding from trial, and an unequivocal Faretta motion made in advance of the sentencing hearing should be granted if defendant is mentally competent, and knowingly and intelligently waives his right to counsel. (People v. Miller (2007) 153 Cal.App.4th 1015, 1024 (Miller).)

         However, the right of self-representation under Faretta is not absolute. (Edwards, supra, 554 U.S. at p. 171; Lynch, supra, 50 Cal.4th at p. 721.) “Thus, a Faretta motion may be denied if the defendant is not competent to represent himself [citation], is disruptive in the courtroom or engages in misconduct outside the courtroom that ‘seriously threatens the core integrity of the trial’ [citations], or the motion is made for purpose of delay [citation].” (Lynch, supra, 50 Cal.4th at pp. 721-722.) The court may terminate self-representation by a defendant who deliberately engages “in serious and obstructionist misconduct.” (Faretta, supra, 422 U.S. at p. 834, fn. 46; People v. Carson (2005) 35 Cal.4th 1, 8-9.)

         The right to self-representation “is absolute only if asserted a reasonable time before trial begins; self-representation motions made after this time are addressed to the trial court's sound discretion. [Citation.]” (People v. Mayfield (1997) 14 Cal.4th 668, 809.) “In exercising that discretion, a trial court is required to consider (1) the quality of counsel's representation, (2) the defendant's prior proclivity to substitute counsel, (3) the reasons for the request, (4) the length and stage of the proceedings, and (5) the disruption or delay which might reasonably be expected to follow the granting of such a motion. [Citation.]” (People v. Scott (2001) 91 Cal.App.4th 1197, 1204.)

         On appeal, we independently review the entire record to determine if the defendant knowingly and intelligently invoked his right to self-representation. (Doolin, supra, 45 Cal.4th at p. 453.) If the trial court’s stated reason for denying a Faretta motion is found to be improper, the ruling still will be upheld if the record as a whole establishes that the motion could have been denied on an alternative ground. (People v. Dent (2003) 30 Cal.4th 213, 218.)

         With these principles in mind, we turn to the competency reports in this case and defendant’s Faretta motions.

         B. The first section 1368 proceeding

         On April 22, 2008, just a few weeks after his arrest, defendant appeared in court and the court declared a doubt about his competency. The court suspended criminal proceedings and appointed two experts to examine defendant. The first expert found defendant competent, and reported that defendant “may have” a psychiatric illness, but that did not impair his ability to understand the nature and purpose of the trial. Defendant stated that he was diagnosed with schizoaffective disorder, taken numerous psychotropic medications, and had been hospitalized in psychiatric units.⁸ Defendant was not taking his medication in jail even though it had been prescribed to him. While the first expert concluded defendant was competent to stand trial, he also reported that defendant was not able to represent himself in a rational manner because he did not have “the technical sophistication” to represent himself.

8 Defendant reported this information to every expert appointed to examine him.

         The second expert reported that defendant suffered from “a chronic mental disorder, Schizoaffective disorder, a combined mood and psychotic disorder, ” but he was competent to stand trial.

         On May 27, 2008, the court found defendant was competent and reinstated criminal proceedings.

         C. The second section 1368 proceeding

         On July 8, 2008, the information was filed.

         On August 21, 2008, defendant requested to replace his appointed counsel. The court conducted a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) and denied the motion. Thereafter, the court again declared a doubt about defendant’s competency, suspended criminal proceedings, and appointed two experts to examine him.

         The first expert reported that defendant received a psychiatric evaluation in jail in September 2008, and he was suffering from some symptoms of depression, but the evaluating psychiatrist did not find “any signs of a genuine psychosis or bipolarity, ” and believed defendant could be “malingering” or had a possible personality disorder. The expert concluded defendant was competent to stand trial but he would always “present with an idiosyncratic perspective.”

         The second expert reported defendant had “a serious mental illness” that was not currently being treated, he was resistant to psychiatric treatment, and he was not competent to stand trial.

         Given the difference of opinions, the court appointed a third expert to examine defendant. The third expert reported that defendant complained of mood disturbances, paranoia, racing thoughts, agitation, and impulsivity. Defendant admitted that prior to his incarceration, he was abusing prescribed medications by crushing and snorting the pills, this caused problems with his last treating psychiatrist, and he could not get his prescription refilled. Defendant admitted he was currently being prescribed medication and he refused to take it. The third expert concluded that defendant was competent to stand trial.

         On October 23, 2008, the court found defendant competent.

         D. Defendant’s first Faretta motion

         On November 20, 2008, defendant again requested to replace his appointed counsel. The court conducted a Marsden hearing, and defendant withdrew his Marsden motion. Thereafter, defendant requested to represent himself pursuant to Faretta. The court granted defendant’s Faretta motion and relieved defense counsel. The trial was tentatively scheduled to begin on December 1, 2008.

         E. The court’s appointment of counsel

         On January 8, 2009, the court appointed an attorney to represent defendant and granted defendant’s request for a continuance.

         On June 8, 2009, defendant’s jury trial began. Defendant was represented by counsel throughout trial. On June 11, 2009, defendant was convicted. The sentencing hearing was set for August 10, 2009.

         F. Postverdict section 1368 proceeding

         On August 10, 2009, the court convened the scheduled sentencing hearing. Defense counsel stated that defendant did not understand what was going on and thought he had not been convicted. Counsel also thought defendant was not taking his medication. Defendant asked for a new attorney to file a new trial motion because counsel got the witnesses “to tell lies.” Defendant insisted he was competent.

         The court suspended criminal proceedings and appointed two experts to examine defendant. The court advised defendant that it could not consider his Marsden or new trial motion until he was found competent.

         The first expert reported that defendant had a “psychiatric disorder of a psychotic nature” and “auditory hallucinations.” The expert concluded defendant was competent to stand trial, but he was not competent to prepare and conduct his own defense in a rational manner without counsel.

         The second expert reported defendant was competent to stand trial. Defendant’s trial competency was “in the borderline competent range given his strongly held persecutory belief about his attorney working against him, ” but those thoughts did not reach delusional proportions and defendant admitted he might be jumping to conclusions.

         G. The sentencing hearing and defendant’s Faretta motion

         On September 17, 2009, the court found defendant competent, reinstated criminal proceedings, and intended to conduct the sentencing hearing. Defendant requested to represent himself, and stated he had already done so during a two-month period earlier in the case. Defendant requested a one-week continuance to consider possible defense motions.

         The prosecutor advised the court that defendant previously represented himself for about two months prior to trial. When the case was scheduled to start, “it was clear and evident” that defendant “hadn’t prepared in those two months to be ready for trial, ” and the court had to appoint counsel to represent him. The prosecutor further stated that during that two-month period, defendant “destroyed his file. He destroyed the documentation within his file and I had to make a copy for [defense counsel] of a second copy of all the discovery.” The prosecutor urged the court to deny defendant’s Faretta motion given his prior conduct because he believed defendant would just “destroy [the file] again.”

         Defendant replied that he did not destroy his file, but he was attacked by a correctional officer, placed in another unit, and he did not know how his file was destroyed during that time.

         The court denied defendant’s Faretta motion. The court believed defendant was competent to stand trial but he was not competent to represent himself because he showed “a certain lack of being in touch.” The court acknowledged there was “a fine line” but found that “[b]ecause of a mental condition you fall in the crack of the law that allows you to go forward in competence and to not be, nevertheless competent to represent yourself.”

         Thereafter, defendant requested to substitute his appointed counsel. The court held a Marsden hearing and denied the motion. The court then conducted the sentencing hearing.

         H. Faretta and competence

         We now turn to defendant’s argument that the court improperly relied on a different standard to find he was not competent to represent himself, even though the court found he was competent to reinstate criminal proceedings.

         As explained ante, a defendant may not waive his right to counsel under Faretta unless he does so competently and intelligently. (Edwards, supra, 554 U.S. at pp. 177-178; Godinez v. Moran (1993) 509 U.S. 389, 396 (Godinez).) In Godinez, the United States Supreme Court held the same standard is used to determine a defendant’s competence to stand trial, and his or her competence to waive counsel under Faretta. (Godinez, supra, 509 U.S. at pp. 396-402.) This unitary competency standard is “whether the defendant has ‘sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding’ and has ‘a rational as well as factual understanding of the proceedings against him.’ [Citations.]” (Id. at p. 396.)

         The California Supreme Court followed Godinez and held the same standard applies to determine whether a defendant is competent to stand trial and whether he is competent to represent himself pursuant to Faretta. (People v. Welch (1999) 20 Cal.4th 701, 732; People v. Halvorsen (2007) 42 Cal.4th 379, 433.)

         I. Edwards and competency

         In Edwards, supra, 554 U.S. 164, the United States Supreme Court stepped back from Godinez and held the trial court was not required to permit a defendant to represent himself at trial if he evidenced mental illness even though he had been found competent to stand trial. Edwards held the ability to conduct one’s own defense requires a higher degree of functionality than does the lesser role of a represented defendant. (Id. at pp. 173-175.) Thus, one may be mentally competent to stand trial yet lack the expanded degree of competence necessary to represent oneself in that trial. (Id. at pp. 176-178.)

         “[T]he Constitution permits judges to take realistic account of the particular defendant's mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally competent to do so. That is to say, the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial... but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.” (Edwards, supra, 554 U.S. at pp. 177-178, italics added.)

         In reaching this conclusion, Edwards distinguished Godinez because the defendant in that case only sought to represent himself to enter a guilty plea rather than to conduct trial proceedings so that Godinez never considered the defendant’s ability to conduct a defense. (Edwards, supra, 554 U.S. at p. 173.) “Godinez involved a State that sought to permit a gray-area defendant [trial-competent but otherwise mentally impaired] to represent himself. Godinez’s constitutional holding is that a State may do so. But that holding simply does not tell a State whether it may deny a gray-area defendant the right to represent himself -- the matter at issue here.” (Ibid., italics in original.)

         “Mental illness itself is not a unitary concept. It varies in degree. It can vary over time. It interferes with an individual's functioning at different times in different ways.… In certain instances an individual may well be able to satisfy [the] mental competence standard, for he will be able to work with counsel at trial, yet at the same time he may be unable to carry out the basic tasks needed to present his own defense without the help of counsel.” (Edwards, supra, 554 U.S. at pp. 175-176.)

         Edwards thus recognized “a mental-illness-related limitation on the scope of the self-representation right.” (Edwards, supra, 554 U.S. at p. 171.) However, the court declined to adopt “a more specific standard” (id. at p. 178), leaving it instead to the discretion of the “trial judge … [who] will often prove best able to make more fine-tuned mental capacity decisions, tailored to the individualized circumstances of a particular defendant.” (Id. at p. 177.)

         The California Supreme Court has acknowledged that “in Edwards, the high court recently decided that ‘the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial … but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.’ [Citation.]” (People v. Butler (2009) 47 Cal.4th 814, 825; see also People v. Taylor (2009) 47 Cal.4th 850, 866-867, 877-878; Lynch, supra, 50 Cal.4th at p. 721 [the court cited to Edwards, without further comment, for the proposition that a Faretta motion may be denied if the defendant “is not competent to represent himself]”.) The court recently granted a petition for review in a nonpublished case to address whether trial courts should apply a higher standard of mental competence for self-representation than for competency to stand trial, as permitted by Edwards. (People v. Johnson, review granted Feb. 16, 2011, S188619.) ⁹

9 In United States v. Ferguson (9th Cir. 2009) 560 F.3d 1060, the Ninth Circuit adopted the Edwards standard for federal trials and held “the standard for a defendant’s mental competence to stand trial is now different from the standard for a defendant’s mental competence to represent himself or herself at trial.” (Id. at p. 1068, fn. omitted.)

         J. Analysis

         Defendant contends the trial court improperly relied on Edwards when it denied his Faretta motion. Defendant argues that Edwards only permitted states to require a higher standard of competency for Faretta motions, and since the California Supreme Court has yet to address this specific issue, we must still follow the pre-Edwards rulings from the California Supreme Court, which followed Godinez and held that the same competency standards applied for a defendant to stand trial and represent himself. Defendant thus argues the court should have granted his Faretta motion at the sentencing hearing since he had just been found competent for the reinstatement of criminal proceedings.

         A court’s erroneous denial of a timely Faretta motion is reversible error per se. However, a court’s erroneous denial of an untimely Faretta motion is reviewed under the harmless error test of People v. Watson, supra, 46 Cal.2d 818, 836. (People v. Rivers (1993) 20 Cal.App.4th 1040, 1050-1051; People v. Rogers (1995) 37 Cal.App.4th 1053, 1058.) If the trial court’s stated reason for denying a Faretta motion is found to be improper, the ruling still will be upheld if the record as a whole establishes that the motion could have been denied on an alternative ground. (People v. Dent, supra, 30 Cal.4th at p. 218.)

         The court in this case clearly relied on Edwards when it denied defendant’s Faretta motion, and found that he was not competent to represent himself even though he was competent to stand trial. The court’s finding on this point is supported by the court’s own observations and the competency report prepared just before the sentencing hearing, where the expert found defendant was competent for the purpose of criminal proceedings but he was not competent to prepare and conduct his own defense in a rational manner without counsel.

         While the California Supreme Court has not expressly addressed the application of Edwards to Faretta motions in this state, Edwards clearly holds that a state court may apply a different competency standard to deny a Faretta motion without violating a defendant’s constitutional rights. This court could thus conclude that the trial court’s ruling did not violate defendant’s constitutional rights based on Edwards.

         However, there were additional problems with defendant’s Faretta motion that were noted by the court and the prosecutor. Defendant brought his Faretta motion on the day scheduled for the sentencing hearing. As we have noted, a sentencing hearing is a separate proceeding from trial, and an unequivocal Faretta motion made in advance of the sentencing hearing should be granted if defendant is mentally competent, and knowingly and intelligently waives his right to counsel. (Miller, supra, 153 Cal.App.4th at p. 1024.) In Miller, defendant’s Faretta motion was made two months before the scheduled sentencing hearing. (Ibid.) In contrast to Miller, however, defendant’s Faretta motion was made on the date of the sentencing hearing.

         The trial court could have found defendant’s motion was untimely given the circumstances. The court had discretion to deny an untimely Faretta motion based on several factors, including the disruption or delay which might reasonably be expected to follow the granting of such a motion. (People v. Scott, supra, 91 Cal.App.4th at p. 1204.) The prosecutor advised the court that defendant represented himself for two months prior to trial, but during that time he failed to prepare, destroyed his criminal file and all discovery, and the prosecutor had to completely copy his own file when defense counsel was reappointed to represent defendant. Given defendant’s prior conduct, the court could have exercised its discretion and denied defendant’s untimely Faretta motion on grounds that it would have been reasonable to expect disruption or delay if defendant was allowed to represent himself again.

         VII. The court properly imposed the $30 assessment

         Defendant’s final issue is that the court improperly ordered him to pay a $30 court facilities assessment pursuant to Government Code section 70373, because that statute was enacted after he committed the offense in this case. This argument is meritless. This court has previously held that the application of this statute is controlled by the date of the conviction rather than by the date of the offense. (People v. Phillips (2010) 186 Cal.App.4th 475, 477.)

         DISPOSITION

         The judgment is affirmed.

          WE CONCUR: KANE, Acting P.J., DETJEN, J.