Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F10617
RAYE, J.Defendant Larry Wilber Kirk accosted bus driver Trina Anderson, calling her names and following her down the street. Defendant spat at Anderson, told her “I ought to cut your throat,” and threatened to have his girlfriend beat her up.
An information charged defendant with making terrorist threats and battery upon an on-duty public transit employee. (Pen. Code, §§ 422, 243.3.) A jury found defendant guilty of attempted making of terrorist threats and misdemeanor battery. (§§ 664/422.)
All further statutory references are to the Penal Code.
After defense counsel expressed concern about defendant’s competency, the court suspended criminal proceedings and appointed a panel of experts to assess defendant’s mental condition. After receiving the reports, the court found defendant competent. Sentenced to 16 months in state prison, defendant appeals, arguing: (1) the court erred in allowing defense counsel to withdraw an earlier declaration regarding defendant’s competence, (2) the court erred in denying defendant the right to represent himself, (3) the court failed to give a self-defense instruction, and (4) the court failed to give an assault instruction. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
An information charged defendant with making terrorist threats and battery upon an on-duty public transit employee. The information also alleged two serious prior felony convictions. (§ 667, subds. (b)-(i).) Defendant entered a plea of not guilty.
Before trial on the prior conviction allegations, the People dismissed one of the two priors alleged in the information. During trial, the court amended the battery count to battery without reference to a public transit employee.
As a bifurcated trial began, defendant moved to discharge his attorney and proceed in propria persona. The court denied the motion.
The jury heard the following evidence at trial. On a December morning, bus driver Anderson had just completed her shift. She was scheduled to transfer her bus to a relief driver, but the new driver had not arrived. Under Regional Transit’s policy, Anderson could not leave the area until the arrival of the relief driver.
Anderson got off the bus, and the waiting passengers attempted to board the bus. Anderson asked them to disembark until the arrival of the relief driver. As she walked toward the adjacent light rail station, defendant, one of the waiting passengers, began following her. He called her fat, ugly, and a bitch. Anderson had seen defendant once previously when he was a passenger on her bus.
Anderson, who was talking on her cell phone, tried to ignore defendant. Defendant continued to insult her, and Anderson told him to “F-off.”
Anderson walked to the end of the station, but defendant continued to follow her as she quickened her pace. Defendant kept up his flow of insults, repeating fat, ugly, and bitch and adding bald-headed. Anderson stopped and asked defendant if he wanted to get back to the bus before it left, but defendant merely continued the insults.
Defendant stood about three feet away and spat at Anderson; the spittle landed on her jacket. Anderson yelled, “You spit on me!”
Defendant told Anderson: “I ought to cut your throat” and reached into his pocket. Anderson feared defendant was reaching for a knife. Anderson did not know what to do; continuing down the street would have put her in a more isolated area, making her even more vulnerable, so she stayed where she was.
Instead of a knife, defendant took a cell phone out of his pocket. He told Anderson: “I’ll get my girlfriend to come out here and beat you up.” Defendant appeared to dial the phone and spoke into it, giving a physical description of Anderson as well as their location. Anderson believed she was in danger.
Anderson saw a police car and waved it down. She told the officers what happened. Defendant denied Anderson’s allegations. A witness told officers defendant had spit on Anderson, and officers arrested defendant.
Sandra Cooper, a bystander at the station that morning, saw defendant and a bus driver arguing. After the driver got off the bus, Cooper saw defendant follow her. Cooper heard them exchanging words. When the pair were approximately 20 feet away, Cooper heard defendant tell the bus driver he would have his girlfriend “kick her ass” and that he would “slit her throat.” Cooper saw defendant spit at the driver.
According to Cooper, the driver was trying to get away from defendant, but defendant kept following her. Cooper told officers what she had seen and saw them take defendant into custody.
Sacramento City Police Sergeant Elmo Banning, on duty that morning, observed a bus driver trying to flag him down. The driver, a short woman, looked scared. Anderson told Banning defendant spat on her.
Banning approached defendant and asked him what happened. Defendant said: “I didn’t spit on that lady.” Defendant did not tell Banning that Anderson had done anything wrong toward him. When handcuffed, defendant became remorseful.
According to Banning, defendant did not appear to be physically impaired. Banning remained on the scene for a very short time, assigning other officers to more completely interview the witnesses.
Defendant testified in his own behalf, denying the charges. The morning of the incident, defendant planned to have breakfast and go to the pharmacy. As he approached the bus he saw Anderson get off. Anderson told those waiting to board: “Don’t get your asses on my bus. Get off my bus.”
When a bystander replied, Anderson, looking directly at defendant, said: “[F]uck you, you fucking punk.” Defendant, trying to be nice, shrugged off Anderson’s words. Anderson continued cursing at him, calling into question his masculinity. Defendant finally responded, calling Anderson a whore and a slut and telling her, “I don’t fuck with black bitches of [your] caliber.”
Defendant did not follow Anderson, spit on her, or threaten to cut her throat. On the contrary, Anderson threatened to have someone kill defendant.
During cross-examination, defendant testified he took several psychotropic drugs. He is a borderline schizophrenic and bipolar. In addition, he tends to anger easily.
The jury found defendant guilty of attempted making of terrorist threats and misdemeanor battery. In a separate trial, the jury found the strike allegation true.
A short time later, defense counsel expressed doubts about defendant’s competence. The court suspended criminal proceedings and appointed a panel of experts to evaluate defendant’s mental condition. After reviewing the reports, the court found defendant competent and reinstated criminal proceedings.
The court sentenced defendant to 16 months in state prison: eight months for attempted terrorist threats, doubled by the operation of the single strike. The court imposed a concurrent 90-day county jail sentence for the battery conviction. Defendant filed a timely notice of appeal.
DISCUSSION
Defendant’s Competency
Defendant launches a two-pronged attack on the trial court’s determination of his competency to stand trial. First, defendant argues the court erred in allowing his counsel to withdraw a declaration of doubt as to defendant’s competency. Second, defendant asserts that the court’s receipt of one expert’s report indicating defendant lacked mental competency required the trial court to suspend the proceedings sua sponte.
Background
In December 2005, during a settlement conference, defense counsel stated: “We need to declare a doubt as to Mr. Kirk’s competence and ask doctors to be appointed.” The court responded by suspending criminal proceedings and having defendant interviewed by two doctors.
The following month, two weeks before the reports were to be submitted, defendant appeared at a bail motion hearing, at which time his counsel sought to withdraw the declaration of doubt regarding defendant’s competency. The court asked if defendant remembered his counsel asking the court to inquire into his competence. Defendant responded in the affirmative. The court asked: “Were you in a problem situation with your meds at that time?” Defendant replied: “Sir, in my opinion, that was done in error.” The court noted that defense counsel shared defendant’s opinion, and defendant stated: “I am still on medications now, which they contacted my psychiatrist, and they show the date this happened. I was supposed to be on medication.”
After defense counsel verbally concurred a mistake had been made, the court stated: “Then I will allow withdraws [sic] of the 1368 declaration. I will reinstate criminal proceedings at this time. If we can send a letter to the doctors as soon as possible to let them know that they can go ahead and bill for the work that was done, but I don’t need a report.”
However, prior to being contacted, one physician, Dr. Hoffman, filed his report several days after defendant withdrew his section 1368 motion.
In February 2006, after new defense counsel was appointed following a conflict of interest, defendant appeared for the scheduled preliminary examination. Defendant testified, presenting testimony mirroring his later trial testimony. During the preliminary examination, no mention was made of the prior section 1368 motion or of defendant’s competency.
The following month, dissatisfied with counsel, defendant made a Marsden motion, which the court denied. Later, defendant made second and third Marsden motions, which were also denied. During none of the motions was any reference made to the previously withdrawn section 1368 motion or to any doubts concerning defendant’s competency.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
In May 2006 on the date set for trial, the trial court heard various pretrial motions. Defendant made a fourth Marsden motion, which the court again denied. Defendant then moved to represent himself. The court denied defendant’s motion. At this point the parties discussed the issue of defendant’s competency.
The court asked defense counsel whether there had previously been a formal section 1368 proceeding. Defense counsel responded that the court had previously suspended the proceedings and then reinstated them. The court then provided the standard Faretta admonitions, asked defendant about his legal knowledge, and then inquired about a reference in the record to a section 1368 proceeding. The court asked defense counsel whether there had previously been a formal section 1368 proceeding. Defense counsel responded that previous counsel, the public defender, had expressed a doubt; one doctor had prepared a report, which counsel had not seen; but “the other one was called off somehow during the proceedings.”
Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562] (Faretta).
The court then inquired whether at that point in time defense counsel was expressing a doubt as to defendant’s mental competency. Defense counsel responded: “I’m expressing nothing within the meaning of 1368.” However, defense counsel believed it would be a miscarriage of justice for defendant to represent himself.
The court made a final inquiry: “But as you sit here right now, you are the counsel of record right now, you don’t see any reason for the Court to resurrect any 1368 proceedings?” Defense counsel answered: “No. And it would be absolutely contrary to every wish he’s ever expressed to me.”
After the jury returned its verdicts, defense counsel requested a hearing after learning that defendant was refusing medical treatment in jail. During the hearing, defense counsel informed the court: “. . . it’s rather reluctantly that I’m here to express a doubt as to Mr. Kirk’s present mental competence within the meaning of Penal Code Section 1368 et seq. I do so with great reluctance. I’m not sure that the message transmitted to the Court is accurate after talking to Mr. Kirk. He indicates that it was not on the order of refusing treatment, but that’s how it’s being interpreted.”
Defense counsel also noted his contact with defendant had raised concerns about defendant’s mental ability to cooperate with counsel: “. . . I’ve explained the practicalities [of sentencing] to him and they are just not taking.” The court agreed that, under section 1368, it had to at some point make a ruling as to defendant’s ability to assist in his defense.
At that point, the trial court broached the subject of the earlier, aborted section 1368 inquiry. Defense counsel responded: “Right. And I don’t know how you drop it without an adjudication.” The court replied: “Well, because apparently there was one report submitted and then the whole thing got aborted.” Defense counsel stated: “Right. And I don’t know that we can even go with that one [doctor’s] report, because it’s not at the present time.” The court agreed the report was stale.
The court referred the matter to two doctors for their reports and set a hearing to be held after receipt of the reports. At the section 1368 hearing, the court noted both doctors found defendant competent to continue in the case. The court found defendant competent within the meaning of section 1368 and scheduled a date for judgment and sentence.
Standard of Review
A mentally incompetent defendant cannot be tried. (People v. Hayes (1999) 21 Cal.4th 1211, 1281 (Hayes).) Under section 1368, “[i]f, during the pendency of an action and prior to judgment, 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 inquire of the attorney for the defendant whether, in the opinion of the attorney, the defendant is mentally competent. . . . At the request of the defendant or his or her counsel or upon its own motion, the court shall recess the proceedings for as long as may be reasonably necessary to permit counsel to confer with the defendant and to form an opinion as to the mental competence of the defendant at that point in time.” (§ 1368, subd. (a).) In addition, if defense counsel informs the court of a belief that the defendant is mentally incompetent, the court must order a hearing to determine the defendant’s competence. (§ 1368, subd. (b).)
A competency hearing must be held at any time before judgment when substantial evidence raising a doubt as to the defendant’s competence is presented to the trial court. (People v. Danielson (1992) 3 Cal.4th 691, 726.) However, evidence regarding past events that supports only speculation regarding the defendant’s possible current incompetence is not sufficient. (Hayes, supra, 21 Cal.4th at p. 1281.)
In reviewing a trial court’s decision not to hold a competency hearing, we defer to the trial court, which is in a better position to observe the defendant’s conduct and demeanor during trial. We reverse where substantial evidence of the defendant’s incompetence has been shown and the court declines to hold a hearing. (People v. Rogers (2006) 39 Cal.4th 826, 847.)
A court’s expression of concern about competency does not require commencement of competency proceedings. Once a trial court declares actual doubts about the defendant’s competency and orders a hearing, a failure to determine the competency issue strips the court of jurisdiction to conduct further criminal proceedings and requires reversal. Defense counsel may not waive these procedural requirements. (People v. Price (1991) 1 Cal.4th 324, 396-397; People v. Marks (1988) 45 Cal.3d 1335, 1337-1340.)
Withdrawal of Counsel’s Declaration of Competency Doubts
Defendant notes that after defense counsel declared doubt about defendant’s competency, the trial court declared doubt, suspended proceedings, and appointed two doctors to evaluate defendant. Once this process began, defendant contends, the trial court lacked jurisdiction to permit defense counsel to retract his concerns and resume criminal proceedings. The court’s actions, according to defendant, require reversal.
However, contrary to defendant’s assertion, the trial court never expressed a doubt about defendant’s competency. In this regard, the court’s actions are similar to those reviewed in People v. Johnson (1991) 235 Cal.App.3d 1157 (Johnson), where the trial court, at defense counsel’s request, suspended proceedings pursuant to section 1368 and appointed two physicians to examine the defendant. (Johnson, at p. 1160.) The physicians found the defendant competent, and defense counsel moved to withdraw the section 1368 request. The court granted the motion and the case proceeded. (Johnson,at p. 1160.)
The defendant appealed, arguing the court lacked jurisdiction to sentence her because of its failure to determine her competency under section 1368. The appellate court rejected the contention. The court carefully reviewed the record concerning the defendant’s competency and concluded: “At no time in these proceedings did the trial court ever express doubt about defendant’s competency; nor was there any evidence presented that defendant was incompetent. Thus the trial court did not abuse its discretion in granting defendant’s motion to withdraw her request for a competency hearing.” (Johnson, supra, 235 Cal.App.3d at p. 1166.)
Defendant questions whether Johnson was properly decided and argues it is distinguishable because in Johnson, defense counsel made no representation to the court as to her client’s competence; here defense counsel expressed such a doubt. In addition, defendant reasons the physicians’ reports finding the defendant in Johnson competent made the formality of a section 1368 hearing unnecessary because “on any reasonable assessment of the evidence, the court could not find the defendant incompetent.” We are not persuaded.
Here, as in Johnson, the trial court never expressed any doubt about defendant’s competency. Instead, as in Johnson, the court acceded to defense counsel’s request to suspend proceedings and appoint doctors to examine defendant. In Johnson, after the reports were received the court granted defense counsel’s motion to withdraw its section 1368 request. Here, the court received no reports; instead, defense counsel informed the court the section 1368 request had been in error, thereby removing the basis for further proceedings. Defendant’s argument elevates form over substance. Where the driving force behind a court’s inquiry into a defendant’s competence is a declaration of counsel and counsel, upon reflection, concludes the declaration was submitted in error, the court may suspend the inquiry and reinstate criminal proceedings. It is not the rule that words, once uttered, cannot be withdrawn.
The trial court did not abuse its discretion in permitting defense counsel to withdraw his request for a competency hearing.
Dr. Hoffman’s Report
On January 18, 2006, nine days after the court reinstated proceedings, Dr. Hoffman’s report was forwarded to the court. In his report, Dr. Hoffman concluded that “defendant’s ability to understand legal and court proceedings, and to assist counsel in a rational manner are currently impaired. He is not competent to stand trial.”
Defendant contends the report constitutes substantial evidence that defendant was mentally incompetent and argues that even if the court did not err in reinstating criminal proceedings, Dr. Hoffman’s report was a “separate event triggering a separate exercise of this trial court’s constitutional duty to ensure that the accused before it is legally competent to stand trial.”
Defendant’s argument would be compelling if the trial court had received and read the report. However, as the People point out, there is no evidence that the trial court was ever aware of the report. Following reinstatement of criminal proceedings, the court directed that the two doctors be informed that “I don’t need a report.” Thereafter, the court’s comments suggest total ignorance of the report’s contents.
Nevertheless, defendant insists that whether the court read the report is irrelevant under People v. Tomas (1977) 74 Cal.App.3d 75 (Tomas). In Tomas, the appellate court found it probable that, through an oversight, the trial court did not actually consider a doctor’s report concluding the defendant was legally incompetent. The report was submitted to the court under an order appointing the doctor to examine the defendant and to file his report with the court. (Id. at p. 91.) The appellate court found “Dr. Derring’s report was nonetheless available to the court and was substantial objective evidence giving rise to a doubt as to defendant’s competence.” (Id. at pp. 91-92.) The court reversed the judgment.
We understand the wisdom of a rule that imputes to the court knowledge of the contents of a report the court ordered but failed through oversight to consider. Here, unlike in Tomas, it was not an oversight that kept the trial court from considering the report. Indeed, the report was not “available” to be considered until after the reinstitution of proceedings, at which time the issue had been resolved and largely forgotten. No further reference was made to defendant’s possible incompetence throughout the remainder of the trial. We note defendant points to no other evidence of his incompetence to which the trial court was privy except for Dr. Hoffman’s belated report, which it appears the trial court never saw.
Right of Self-Representation
Defendant argues the trial court erred in denying his motion for self-representation under Faretta. According to defendant, he possessed a sufficient understanding of the proceedings to waive his right to counsel. The People assert that defendant’s request for self-representation was “in reality a thinly-disguised attempt to obtain still another substitution of attorneys . . . made ‘on the eve of trial.’”
Background
After the trial court denied defendant’s Marsden motion, defendant requested permission to represent himself. The trial court questioned defendant, on the record, regarding his ability to represent himself. Defendant stated he had no legal training, but his brother’s wife was an attorney. Although she lived in Philadelphia, defendant sometimes talked with his sister-in-law about legal matters.
Defense counsel stated defendant was a manic-depressive but that prescribed medication controlled his condition, making him competent to stand trial. According to defense counsel, it would be a miscarriage of justice if defendant were to represent himself.
As it prepared to announce its decision, the court told defendant, “you know, you have an absolute constitutional right to represent yourself” but then expressed reservations about defendant’s legal abilities. A colloquy between the court and defendant ensued:
“The Court: Okay. Let me ask you one question. If I was to grant your pro per status, what -- tell me -- give me the first two or three things you would do. What would you do procedurally, let’s say?
“The Defendant: Go back and get help.
“The Court: Meaning what?
“The Defendant: Call this lady named Ms. Tilley or whatever her name is.
“The Court: Uh-huh.
“The Defendant: Have her come and have a visit to see me. The law office right here.
“The Court: Who is that person?
“The Defendant: This is a lady -- she’s from a law office. The Law Office of -- that’s what I would do. And get help, because I feel like I’ve been railroaded.
“The Court: And you want to produce that lady here during the trial for -- to show what?
“The Defendant: If she’ll take the case, yeah.
“The Court: I see. You want to go -- you want somebody -- you want to contact that lady and find out if she’ll take the case?
“The Defendant: (Nodding head.)
“The Court: Well, it doesn’t sound like you want to represent yourself, Mr. Kirk. It sounds like you want a different lawyer.”
Standard of Review
A defendant has a right to represent himself if he voluntarily and intelligently elects to do so. (Faretta, supra, 422 U.S. at p. 819.) The request for self-representation must be unequivocal. The right is forfeited unless the defendant articulately and unmistakably requests to represent himself. (People v. Valdez (2004) 32 Cal.4th 73, 99.) A motion made out of a temporary whim, annoyance, or frustration is not unequivocal, even if the defendant states he is seeking self-representation. (People v. Marshall (1997) 15 Cal.4th 1, 21.)
A trial court possesses broad discretion in ruling on a Faretta motion. “When a trial court exercises its discretion to deny a motion for self-representation on the grounds it is untimely, a reviewing court must give ‘considerable weight’ to the court’s exercise of discretion and must examine the total circumstances confronting the court when the decision is made.” (People v. Howze (2001) 85 Cal.App.4th 1380, 1397-1398.)
Discussion
The People contend the trial court acted within its discretion in denying defendant’s request as untimely since it was made after the case had been assigned to a trial department and on the eve of trial. Defendant argues any objection based on the timeliness of his request was vitiated by the trial court’s ruling that defendant would not receive any additional time to prepare his case if he represented himself.
However, disruption or delay is not the sole factor in assessing a trial court’s exercise of its discretion in denying a Faretta motion based on timeliness. We consider the quality of counsel’s representation of the defendant, the defendant’s prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay that might reasonably be expected to follow the granting of such a motion. (People v. Barnett (1998) 17 Cal.4th 1044, 1104-1105.)
Here, defendant complained of defense counsel’s unwillingness to call witnesses he believed would be helpful to his case, the speed of the attorney’s handling of the case, and counsel’s unwillingness to file a Romero motion. Defendant filed four previous Marsden motions, all of which the court heard and denied. Defendant made his motion for self-representation on the eve of trial.
Romero v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
Given the timing of the motion and the disclosure that it was less an effort to secure the right of self-representation than an ill-conceived plan to secure the services of a different attorney, the court did not abuse its discretion in denying the motion.
Self-Defense Instruction
Defendant argues the trial court erred in failing to give a self-defense instruction sua sponte in conjunction with the charge of making terrorist threats. The People contend no evidence supports such an instruction.
In criminal cases, the trial court must instruct sua sponte on the general principles of law relevant to all issues that the evidence raises. This includes a duty to instruct on defenses. The obligation to instruct on defenses arises only if they are consistent with the defense theory of the case. (People v. Young (2001) 92 Cal.App.4th 229, 233.)
A trial court has no duty to instruct the jury on a defense unless the defense is supported by substantial evidence. (People v. Curtis (1994) 30 Cal.App.4th 1337, 1355.) A jury instruction need not be given whenever any evidence is presented, no matter how weak. Rather, the defendant must present evidence sufficient to deserve consideration by the jury. (People v. Strozier (1993) 20 Cal.App.4th 55, 63.)
Defendant contends he advanced the theory at trial that there was an argument between defendant and Anderson. Anderson was the aggressor, and defendant’s behavior was a “self-protective” reaction to Anderson’s hostile behavior. Under this scenario, defendant was the victim, not Anderson, and he reacted out of self-defense. In support, defendant cites his own testimony that Anderson threatened to harm him and have somebody kill him. Defendant argues his retaliatory and reciprocal threats against Anderson warrant a self-defense instruction.
We disagree. To act in self-defense, an individual must reasonably believe he or she is in imminent danger of suffering bodily injury or being touched unlawfully and, having been threatened, acted because he or she “reasonably believed that the immediate use of force was necessary to defend against that danger.” (CALCRIM No. 3470.)
Defendant concedes no criminal case supports his assertion that his threats against Anderson qualify as self-defense in the face of Anderson’s alleged threats. Defendant’s “retaliatory threats” do not constitute the reasonable and immediate use of force necessary to defend himself against Anderson’s alleged threats. Accordingly, no evidence supports defendant’s claim that the court erred in failing to instruct sua sponte on self-defense.
Instruction on Lesser Included Simple Assault
Finally, defendant faults the trial court for failing to instruct on the lesser included offense of simple assault in conjunction with the misdemeanor battery charge arising out of the spitting incident. Defendant contends, based on the evidence, the jury might have concluded that defendant spat in Anderson’s direction but failed to hit her.
The trial court has a duty sua sponte to instruct on lesser included offenses when the evidence raises a question as to whether all the elements of the charged offense were present and there is evidence that would justify a conviction of such a lesser offense. (People v. Hughes (2002) 27 Cal.4th 287, 365.)
At trial, Anderson testified defendant spit on her and the spittle landed on her uniform jacket. Cooper, who witnessed the incident from about 20 feet away, saw defendant spit at Anderson.
During cross-examination, Cooper testified she saw defendant spit on Anderson, but she could not see any spittle on Anderson. Cooper stated: “I don’t know if it landed on her, if it got into -- I don’t know that. All I know is he spit on her.” Defendant denied spitting on Anderson.
We are not persuaded by defendant’s attempt to fashion a simple assault out of the evidence surrounding the spitting incident. Anderson stated defendant spat on her, hitting her uniform. Cooper stated defendant spat at Anderson, but from her vantage point she could not see if the spittle struck Anderson. Defendant simply denied spitting at Anderson. No one testified that defendant’s spit did not strike Anderson. Anderson stated it did, Cooper could not say whether or not it had, and defendant stated he did not spit at her at all. No evidence supports defendant’s theory requiring an instruction on simple assault in connection with the spitting incident.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON , Acting P.J., CANTIL-SAKAUYE , J.