Opinion
A145959
03-22-2017
THE PEOPLE, Plaintiff and Respondent, v. TORIANO GERMAINE HUDSON, SR., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 05141930-8)
In accordance with Faretta v. California (1975) 422 U.S. 806 (Faretta), defendant Toriano Germaine Hudson, Sr., represented himself before the jury that in June 2015 convicted him of four vehicle-related offenses, two of which were felonies and involved the personal infliction of great bodily injury. Defendant was still representing himself when the trial court (Hon. Patricia Scanlon) found true allegations that defendant had four prior felony convictions, two of which qualified as "strikes" for purposes of the "Three Strikes" law. Defendant was still representing himself when Judge Scanlon sentenced him to state prison for a term of 35 years to life, with concurrent terms for the other three convictions.
On this timely appeal, defendant's primary contention is that it was prejudicial error for the trial court (Hon. Terri Mockler) to determine that he was mentally competent, and therefore to permit him to dispense with appointed counsel and represent himself. He also contends his motion pursuant to People v. Marsden (1970) 2 Cal.3d 118 was erroneously denied, and that he is entitled to additional custody credits. The Attorney General responds to this last point by countering that the number of credits awarded to defendant was "excessive." We agree with defendant on the issue of credits. We order preparation of a new abstract of judgment, but otherwise affirm.
Competency And Faretta
The details salient to these contentions are as follows:
On March 24, 2015, appointed counsel advised Judge Mockler of a doubt as to defendant's competency to stand trial. Pursuant to Penal Code section 1369, and over defendant's vehement protests, Judge Mockler appointed two psychologists to examine defendant. So far as the record reveals, only one of the psychologists contacted defendant and/or reported to the court. Dr. Jeremy Coles advised Judge Mockler: "I attempted to evaluate Mr. Hudson at the Contra Costa County Jail in Martinez . . . . However, when he entered the examination room and I informed him as to why I was there to see him, he responded, 'I'm competent man. They're full of shit because I wouldn't take their deal. They're saying I'm not competent. They're full of shit. I ain't got time.' He then exited the evaluation room." After speaking with defendant's counsel, and reviewing some jail records, Dr. Coles concluded: "Without a current interview, it is not possible to make a sufficiently informed determination regarding Mr. Hudson's legal competency" or "Mr. Hudson's need for psychiatric medication."
Statutory references are to this code.
At a subsequent hearing, defense counsel told Judge Mockler that "Mr. Hudson refused to talk to the other doctor as well." (See fn. 6, post.)
On April 30, 2015, following receipt of Dr. Coles's report, Judge Mockler held a hearing at which the following transpired:
"THE COURT: Mr. Hudson had been represented starting in August of 2014 by Mr. Daniel Cook, who was appointed counsel. He went through a preliminary examination with Mr. Cook and then through his arraignment up here. Then in November of 2014, Mr. Hudson requested to represent himself. I granted that. The matter was set for trial on December 17 of 2014. Mr. Hudson, who was representing himself at that point, was sent to a trial department and requested at that time that counsel be appointed. So on December 18th, the matter was back in front of me. And Mr. Briggs was appointed to represent Mr. Hudson. Mr. Briggs had made six appearances with Mr. Hudson up until and including March 19 of 2015. Then on March 24th of 2015, Mr. Briggs declared a doubt, criminal proceedings were suspended and two doctors were appointed . . . to evaluate Mr. Hudson. We did receive one doctor's report from Dr. Coles, which is—does not—let's put it this way, does not have an opinion by the doctor one way or the other as to Mr. Hudson's competence.
"The reason I'm making this record is because I do believe under Godinez vs. Moran, 509 U.S. 389 and Indiana vs. Edwards, 554 U.S. 164, that despite the fact that there has been a recent declaration by counsel of a doubt as to Mr. Hudson's competence, I don't—I think that I can still make a determination whether Mr. Hudson is competent to represent himself. There has been no opinion and no court finding that Mr. Hudson is not competent. And, in fact, I have no evidence before me that he's not competent. So I'm going to find at this point by [a] preponderance of evidence that Mr. Hudson is competent and criminal proceedings are reinstated.
" . . . Mr. Hudson, I see that you have initialed the appropriate paragraphs on the Faretta form.
"THE DEFENDANT: Yes.
"THE COURT: You do indicate . . . here as to—in answer to 2(d) that you did represent yourself in the year 2000, right?
"THE DEFENDANT: Correct.
"THE COURT: Under charges and consequences, I see you've written out all the charges you're facing and you've also indicated based on the enhancements that your maximum sentence is 35 [years] to life, which may be a little over-stating the maximum amount of time, but that's fine. The important thing is that you understand that you could potentially get a life sentence.
"So, Mr. Hudson, just so we make a record here, you understand that if you—if I grant your right [sic: request] to represent yourself, that you will be expected to conduct yourself in the court proceedings just the way any other attorney would be expected to conduct themselves. Do you understand that, sir?
"THE DEFENDANT: Yes, your Honor.
"THE COURT: You also understand that if you actually do go to a trial, or any type of contested hearing, a motion or whatever, that the judge who is hearing the trial or the motion can't help you out and that you will be up against a seasoned prosecutor who is going to know the rules of evidence and have tried cases before. Do you understand that?
"THE DEFENDANT: Yes, ma'am.
"MR. BOLEN [the prosecutor]: The Court should also be aware that last time he was in trial he said he couldn't do a trial. He's playing games [with] the Court. It should be clear to the Court he told the last judge in the trial department, I can't do a trial without an attorney. He was ready to go to trial with Mr. Briggs and started giving Mr. Briggs a hard time because he [defendant] didn't want to go to trial. And Mr. Hudson clearly doesn't want to go to trial. . . . . He's going to be back again asking for an attorney. . . .
"THE COURT: The Court is well aware of that, but the Court is also aware of the fact that it is reversible error per se for a judge to deny a person's right to represent themselves in the absence of evidence that they've been abusing the process or are patently mentally ill or are threatening witnesses. I don't have any of that evidence here.
"MR. BOLEN: It might be worth ordering the transcripts . . . when he asked for an attorney after the last trial appearance. Because, according to Mr. Hefron (phonetic), who was trying the case with him, Mr. Hudson told the Court he was willfully unprepared to try the case and needed the assistance of an attorney. So he's either lying then or he's lying now.
"THE DEFENDANT: This is just . . . another attempt for them to delay me being ready for trial. But I explained it. The only reason why I needed counsel was to have my motions filed in the proper manner . . . . As far as being ready for trial, I'm more than ready for trial. I believe I can try this case blindfolded.
"THE COURT: Well, Mr. Hudson, do you understand . . . . [¶] . . . [¶] [T]hat it's a warning—it's kind of a warning here, but you can't—at some point, a judge, either me or another judge, is going to say enough is enough. And you can't be getting into a trial department and saying you can't handle it and you want an attorney, only to find fault with every attorney who represents you.
"THE DEFENDANT: That was never said. Only thing that
"THE COURT: I'm just saying—I'm just kind of warning you, sir, that if that happens again—you know, you always have the right to ask for an attorney, but at some point, if the Court gets the impression that you're just engaging in dilatory delaying tactics, . . . your pro per status will be revoked and you're going to go to trial.
"THE DEFENDANT: I understand completely.
"THE COURT: All right. I am going to grant him the right to represent himself again. Mr. Briggs is relieved. [¶] So are you ready to set a trial date, Mr. Hudson?
"THE DEFENDANT: What does the Court have available? [¶] . . . [¶]
"THE COURT: . . . . We've been setting time not waived trials on June 8th.
"THE DEFENDANT: June 8th sounds fine."
Judge Mockler's decision would ordinarily be reviewed to determine whether, construing the record most favorably to that decision, it has the support of substantial evidence. (People v. Blacksher (2011) 52 Cal.4th 769, 797; People v. Hightower (1996) 41 Cal.App.4th 1108, 1111.) Defendant asks us to undertake this review, albeit in an oblique fashion. To quote the caption in his brief: "There was substantial evidence that appellant was not mentally competent to stand trial, despite the lack of an expert's opinion that he was mentally incompetent; the trial court therefore erred prejudicially by finding appellant was mentally competent without holding a competency hearing; the error requires reversal."
And that review is confined to "the record presented or otherwise made available to the trial court" "at the time of its decision." (People v. Mickel (2016) 2 Cal.5th 181, 197.) Thus, defendant's behavior at trial, or the quality of his performance representing himself, cannot be employed to impeach Judge Mockler's decision that he was mentally competent. We note that defendant does not contend that anything which occurred at trial triggered Judge Mockler's independent and continuing duty to suspend criminal proceedings if she had a doubt as to defendant's mental competency during the trial.
At the outset, we are not convinced of defendant's premise that Judge Mockler did not hold "a full competency hearing" as contemplated by section 1369. According to defendant, to the extent Judge Mockler believed she "could not make a finding of mental incompetence absent an 'opinion' in Dr. Coles' report," she "misunderstood the scope of [her] discretion." We do not discern that misunderstanding.
"Penal Code section 1369 establishes a presumption that the defendant is mentally competent unless he is proved by a preponderance of the evidence to be otherwise. In so doing, it operates to impose the burden of proof on the party, if any, who claims that the defendant is mentally incompetent . . . ." (People v. Rells (2000) 22 Cal.4th 860, 862.) This presumption "is applicable at a trial of the defendant's mental competence, in spite of the fact that it may run counter to any doubt expressed by the court [or] . . . his own counsel." (Id. at p. 867; see People v. Smith (2003) 110 Cal.App.4th 492, 504 [reviewing court "must presume appellant was competent in the absence of any showing that he was not"].) "A defendant is deemed competent to stand trial . . . if he ' "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." ' " (People v. Ary (2011) 51 Cal.4th 510, 517.)
It is clear that Judge Mockler understood the statutory procedures and complied with them. She did appoint psychologists, but defendant refused to cooperate with them. The only report produced by the referrals was from Dr. Coles. Despite defendant's attempt to recast it (see following paragraph), the bottom line of the report was Dr. Coles's unambiguous statement: "Without a current interview, it is not possible to make a sufficiently informed determination regarding Mr. Hudson's legal competency." Thus, there was no expert testimony to rebut the statutory presumption of defendant's competency.
Rule 4.130(e) of the California Rules of Court—which was not cited by either defendant or the Attorney General—specifies the procedures for a "Trial on mental competency":
"[T]he court must conduct a trial on the mental competency of the defendant if the court has initiated mental competency proceedings . . . . [¶] At the trial, the defendant is presumed to be mentally competent, and it is the burden of the party contending that the defendant is not mentally competent to prove the defendant's mental incompetence by a preponderance of the evidence. [¶] In addition to the testimony of the experts appointed by the court . . . , either party may call additional experts or other relevant witnesses. [¶] After the presentation of the evidence and closing argument, the trier of fact is to determine whether the defendant is mentally competent or mentally incompetent. [¶] . . . [¶] [T]he court's findings must be made in writing or placed orally in the record." (Cal. Rules of Court, rule 4.130(e)(1)-(4).)
Given the unusual circumstances, any noncompliance with the literal letter of these procedures could not be considered prejudicial.
Defendant's attorney did not call other experts to testify. He did not proffer any form of additional evidence. He did not cite to any of the statements he made to Dr. Coles. (See fn. 4 and accompanying text, post.) He did not draw Judge Mockler's attention to any behavior or in-court actions by defendant that were relevant to the issue of defendant's competency. (See People v. Ary (2004) 118 Cal.App.4th 1016, 1024, quoting Drope v. Missouri (1975) 420 U.S. 162, 180 [" 'evidence of a defendant's irrational behavior, his demeanor . . . are all relevant' "].) Notwithstanding defendant's extensive prior experience with criminal trials, he does not point to "any prior medical opinion on competence." (Ibid.) Even now, in his brief, defendant does not rely on anything except the contents of Dr. Coles's report. In short, there is no evidence that defendant had previously been examined by a mental health professional, or that he had ever been diagnosed with a syndrome or problem that would adversely impact his ability to reason or cooperate with his attorney.
It is therefore difficult to conceive what the "full competency hearing" desired by defendant would have revealed. In short, Judge Mockler did conduct a hearing on the issue of defendant's competency. (See People v. Stankewitz (1990) 51 Cal.3d 72, 89 ["permitting the matter to be submitted on the record of defendant's refusal to communicate with the court-appointed psychiatrists is not tantamount to the absence of a hearing"]; People v. Maxwell (1981) 115 Cal.App.3d 807, 811-812 [refusal of defendant to meet with psychiatrists and that "neither party chose to present evidence on the issue does not point to the absence of a hearing"].) It may have been truncated, but it did have the opportunity for defendant to present evidence rebutting the presumption of his mental competency. It did allow the parties to present argument on that issue. Judge Mockler's decision was stated on the record. And that decision is supported by substantial evidence. (People v. Blacksher, supra, 52 Cal.4th 769, 797.)
Next, we also cannot accept defendant's belief that Judge Mockler's statement that she "did 'not have an opinion' " from Dr. Coles "is belied by Dr. Coles'[s] report" an argument that runs as follows: "It is true that the first sentence of the 'OPINION' section of Dr. Coles'[s] report states: 'Without a current interview, it is not possible to make a sufficiently informed determination regarding Mr. Hudson's legal competency.' If Dr. Coles had stopped there, [Judge Mockler's] statement would have been an accurate one. But Dr. Coles continued: [¶] [']Based upon his attorney's report, he is not able to cooperate with his counsel in a meaningful manner. He became belligerent when asked to do so and also employed unusual and, perhaps, delusional thinking where he asserted he didn't mind a lengthy prison sentence because he would be awaiting millions of dollars when he was released from prison. It is worth noting as well that I told Mr. Hudson that he would most likely have to participate in a competency evaluation with me prior to his case proceeding. This did not seem to bother him and he became very loud and agitated with me. In summary, it is most probable that Mr. Hudson is not legally competent at the present time but an interview is necessary to confirm this provisional opinion.[']" Defendant reads this as proof that Judge Mockler " 'misunderstood the scope of [her] discretion.' " We do not.
At another point in his report, Dr. Coles stated under the heading "INTERVIEW WITH DEFENSE ATTORNEY, DAVID BRIGGS Mr. Briggs informed me that he questioned Mr. Hudson's competency due to the fact that he may have been suffering with grandiose delusions that were affecting his decision making process. Mr. Briggs felt he employed magical thinking as well. Apparently, Mr. Hudson goes back and forth as to whether he is guilty. He has been fixated on the resisting arrest charge and is convinced he was abused by police and that he is 'another Ferguson Missouri case.' When Mr. Briggs told Mr. Hudson that if he planned to contest the charges, they should work together on his testimony, he refused to cooperate. When told he might get a very long prison sentence in the neighborhood of 10-20 years, Mr. Hudson said that this was okay because he had a 4 million dollar lawsuit against [the] City of Richmond and he will sit and do time in prison, awaiting these riches when he is released from prison. He refused to help Mr. Briggs develop his case and became belligerent when pressed to do so." Parenthetically, the jury was unable to reach a verdict on the two resisting-officer charges, which were dismissed at the time of sentencing.
Judge Mockler's remark was literally true—Dr. Coles did not hazard a conclusion on the issue of defendant's competency. Hypothetical or speculative language recounted by Dr. Coles ("may have been suffering"), even his "most probable" comment about defendant's incompetency, do not require setting aside his actual conclusion.
The lack of a firm opinion from Dr. Coles does not establish the absence of substantial evidence, for expert evidence is not a requisite to a competency determination. (See People v. Mickel, supra, 2 Cal.5th 181, 202 ["To raise a doubt . . . we require more than . . . expert testimony"]; People v. Ary, supra, 118 Cal.App.4th 1016, 1024 ["We reject the People's suggestion that substantial evidence of incompetence must be established by an expert"].) Defendant's poor relations with Mr. Briggs are not probative. (See People v. Hightower, supra, 41 Cal.App.4th 1108, 1112 ["unwillingness to cooperate with defense counsel . . . does not constitute proof of mental incompetence. '[T]he test . . . is competency to cooperate, not cooperation.' "].) Because it was not Judge Mockler who declared a doubt as to defendant's competence, it may be presumed that nothing she observed led her to suspect that defendant was irrational or incompetent. (Cf. § 1368, subd. (a) ["If . . . a doubt arises in the mind of the judge as to the mental competence of the defendant, he or she shall state that doubt in the record and" "recess the proceedings for as long as may be reasonably necessary"].) Even the hearsay "delusions" attributed to defendant do not show that he failed to understand the nature of the proceedings against him. (See People v. Mickel, supra, at p. 202 ["we require more than 'mere bizarre actions' or statements"]; People v. Ary, supra, 51 Cal.4th 510, 517.) The fact that Judge Mockler had previously found defendant competent to waive his right to counsel is also significant, for that was certainly information "otherwise made available to the trial court" "at the time of its decision." (People v. Mickel, supra, at p. 197; see People v. Lawley (2002) 27 Cal.4th 102, 136 ["A trial court may appropriately take into account its own observations in determining whether the defendant's mental state has . . . changed"].)
Because defendant was competent to stand trial, he would ordinarily be deemed competent to waive his right to counsel and proceed under Faretta. (See People v. Taylor (2009) 47 Cal.4th 850, 874-876 and decisions cited.) There is a limited exception to this principle for "gray-area defendants," namely, those who are mentally competent to stand trial, but who suffer from severe mental illness that renders them incompetent to represent themselves. (See Indiana v. Edwards, supra, 554 U.S. at pp. 174, 177-178; People v. Mickel, supra, 2 Cal.5th 181, 206-207; People v. Johnson (2012) 53 Cal.4th 519, 528-530.) However, as previously defendant has no history or diagnosis of mental illness, severe or otherwise. Defendant cites Indiana v. Edwards in his briefs, but he points to no evidence that would warrant its application to him.
We think it worthy of mention that it was Judge Mockler who raised and considered the applicability of Indiana v. Edwards to defendant. This initiative refutes defendant's argument that Judge Mockler misunderstood the governing legal principles and the scope of her discretion in determining whether defendant was competent.
In light of the foregoing, we must reject defendant's claim of prejudicial procedural or substantive error undermines Judge Mockler's determination that he was mentally competent.
The Marsden Motion
On April 28, 2015—two days before Judge Mockler found defendant competent, granted his request to represent himself, and relieved Briggs as his counsel—defendant was in Judge Mockler's department for "receipt of [Dr. Coles's] report." Defendant stated "I would like to have a Marsden hearing" because Briggs "and I conflict a hundred percent." After a brief discussion of Dr. Coles's "report," Judge Mockler cleared the court except for defendant, Briggs, and court staff. Defendant was indignant that Briggs "labeled me incompetent" and was acting "like a surrogate prosecutor." In addition to having Briggs relieved, defendant stated "I would much rather have my case in my own hands," meaning "I would like to have my pro per status back." Judge Mockler stated she was "inclined to deny the Marsden" and "might grant" a renewed Faretta motion. Upon being reminded by Briggs that criminal proceedings were still suspended, Judge Mockler "den[ied] the Marsden," provided defendant with "the Faretta papers," and ordered everyone back in two days.
It was at this hearing that Judge Mockler learned that defendant had, in addition to Dr. Coles, refused to allow the other psychologist appointed to examine him. (See fn. 2, ante.)
Which did not preclude holding a Marsden hearing: "While it is true that section 1368 mandates the suspension of 'all proceedings in the criminal prosecution' once the court has ordered a hearing into the mental competence of the defendant [citations], it is equally true that the Sixth Amendment right to effective representation virtually compels a hearing and an order granting a motion for substitution of counsel when 'there is a sufficient showing that the defendant's right to the assistance of counsel would be substantially impaired if [the defendant's] request was denied.' " (People v. Stankewitz, supra, 51 Cal.3d 72, 87-88.) "[W]hile the trial court may not 'proceed with the case against the defendant' before it determines his competence in a section 1368 hearing [citation], it may and indeed must promptly consider a motion for substitution of counsel when the right to effective assistance 'would be substantially impaired' if his request were ignored." (Id. at p. 88.) --------
Defendant claims the denial was error. Even if, solely for purposes of this appeal, we agreed, the claimed error would not require reversal. The relief defendant sought was Briggs's removal and his own substitution to represent himself, both of which were granted two days. Given that nothing adverse to defendant occurred in those 48 hours, an erroneous denial of his Marsden motion would be harmless beyond any reasonable doubt. (See People v. Chavez (1980) 26 Cal.3d 334, 348-349; People v. Loya (2016) 1 Cal.App.5th 932, 945.)
CREDITS
The minutes of defendant's sentencing on July 31, 2015 state: "The defendant is entitled to 365 actual [custody] credits, and 365 conduct credits for total credits of 730. These credits to be applied to the determinate sentence. Defendant to receive the ½ time credits up to and including 7/31/15. After 7/31/15 the credits shall be applied at 15% Pursuant to [section] 1202.4(b)." Citing People v. Philpot (2004) 122 Cal.App.4th 893, defendant contends he "should have received 365 days of actual custody credits (Pen. Code, § 2900.5) and 54 days of conduct credits (Pen. Code,§ 2933.1), for a total of 419 days of presentence credits" on his determinate term. We agree. (See, e.g., People v. Duff (2010) 50 Cal.4th 787, 793; People v. Brewer (2011) 192 Cal.App.4th 457, 461-464; Couzens & Bigelow, Cal. Three Strikes Sentencing (The Rutter Group 2016) ¶ 6:5, p. 6-18.)
The Attorney General has a credit-related claim of her own. According to her, Judge Scanlon "erred in indicating on the abstract of judgment that appellant was to be awarded the full 365 days of conduct credits. As appellant acknowledges, he was convicted of a violent felony, and section 2933.1 limits presentence conduct credits on such convictions to 15 percent. The trial court indicated its intent to award only 15 percent. Therefore, this case should be remanded with direction to the trial court to correct the abstract of judgment and reduce the presentence conduct credits to 15 percent of the total time served." This appears to be correct. The abstract for defendant's determinate sentence shows "365" in the column for "Local Conduct" with the box for "4019," we assume is a reference to section 4019, which is the general statute for awarding such credits. If this does not accord with Judge Scanlon's intent, she may correct it when a new abstract is prepared.
The cause is remanded for the sole purpose of preparing a corrected abstract of judgment in conformity with the views expressed herein. A certified copy of the amended abstract shall be forwarded to the Department of Corrections and Rehabilitation. The judgment of conviction is affirmed in all other respects.
/s/_________
Richman, J. We concur: /s/_________
Kline, P.J. /s/_________
Stewart, J.