Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. TA076798, William R. Chidsey, Jr., Judge.
The Bucklin Law Firm and Stephen L. Bucklin for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.
William A. Miles appeals from the judgment entered following his conviction by jury of assault with a semiautomatic firearm and possession of an assault rifle. We reject Miles’s contention he was improperly denied his right to represent himself. However, we conclude the trial court failed to hold a proper hearing after it declared a doubt as to Mile’s competence to stand trial and remand for a new competency hearing.
PERLUSS, P. J.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Crimes Committed by Miles
At approximately 4:00 a.m. on October 20, 2004 Tenisha Wilcox was walking to a bus stop on her way to work. Miles got out of his parked car, approached Wilcox with an assault rifle, pointed and held it within a few inches of her nose and asked her where she was from, a common gang challenge. As Wilcox broke away and ran toward the approaching bus, the bus driver called the police. Miles was apprehended shortly thereafter.
The weapon used by Wilcox was a MAADI MISR 90, which is an AK47 series and thus an assault weapon pursuant to Penal Code section 12276, subdivision (e).
2. The Information
Miles was charged in a two-count information with one count of assault with a semiautomatic firearm (Pen. Code, § 245, subd. (a)(3)) (count 1) and one count of possession of an assault rifle (§ 12280, subd. (b)) (count 2). The information further alleged with respect to count 1 Miles had personally used an assault rifle within the meaning of section 12022.5, subdivision (b). Miles pleaded not guilty and denied the special allegation.
Statutory references are to the Penal Code.
3. The First Competency Proceedings
On the date set for his arraignment, Miles refused to leave his jail cell; the court arraigned Miles while he was in his cell. On January 3, 2005 the trial court declared doubt as to Miles’s competence to stand trial and suspended criminal proceedings. (§ 1368, subd. (a).) According to defense counsel, Miles’s mother indicated Miles had a psychiatric history of paranoid schizophrenia.
At the competency hearing on March 16, 2005 counsel submitted on the report of Dr. Kaushal Sharma, who had been appointed by the court to assess Miles. The prosecutor stated Dr. Sharma’s determination Miles was not competent to stand trial was a reasonable one. The court, noting “Dr. Sharma is not a doctor who lightly concludes somebody is not competent to stand trial,” found Miles not competent, ordered him to Patton State Hospital and authorized the hospital to administer psychotropic medication, which Dr. Sharma had concluded might facilitate Miles becoming competent.
4. The Second Competency Proceedings
On July 25, 2005 the trial court considered a report from Patton State Hospital, found Miles competent to stand trial and set the case for trial on September 23, 2005.
On September 23, 2005 the case was transferred to Judge Jack W. Morgan for trial. After counsel for Miles informed the court he believed Miles may be mentally disordered (§ 1368, subd. (b)), the trial court stated, “Based upon the circumstances that counsel and I discussed at sidebar, I’ll refer this to Department 95 for evaluation as to competency.” The court suspended proceedings “under 1368,” again appointed Dr. Sharma to evaluate Miles on behalf of the defense and appointed Dr. Ronald Markman on behalf of the prosecution. The minute order from the hearing states, “The court declares a doubt as to the defendant’s mental competence pursuant to Penal Code Section 1368.”
The minute order from the December 21, 2005 hearing reflects the case was called for a section 1368 hearing before Judge John T. Doyle. After asking Miles several questions and determining he knew where he was, what the charges were against him and that he could identify the judge and his attorney, the court stated, “He’s not 1368.” After some discussion with counsel, the court found Miles competent to stand trial, reinstated criminal proceedings and re-arraigned Miles.
5. Miles’s Requests To Represent Himself
On January 3, 2005, the date on which the court initially declared doubt as to Miles’s competency, his defense counsel advised the court Miles was insisting on representing himself although he was refusing to complete the required form for in propria persona status (the “Faretta waiver”). The court responded it needed to resolve the issue of Miles’s competence to stand trial before ruling on the self-representation request. As discussed, Miles had been found not competent to stand trial on March 16, 2005 and was sent to Patton State Hospital for treatment.
Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525, 45 L.Ed.2d 562] (Faretta) (Sixth Amendment grants accused right to represent himself upon timely and unequivocal request).
On September 23, 2005, when the trial court for a second time declared doubt as to Miles’s competency, Miles informed the court he did not like his counsel and asked to be allowed to represent himself. The trial court once again advised Miles the issue of self-representation could only be decided after the question of competency had been resolved. The issue of self-representation was not raised by Miles at either the December 21, 2005 competency hearing, at which a new trial date was set after determining Miles was competent, or at the commencement of trial on March 8, 2006.
On the second day of trial, during jury selection, Miles’s counsel again stated Miles wanted to represent himself. Both the prosecutor and defense counsel indicated Miles had made a similar request at the pretrial conference, initially held on January 24, 2006 and continued to February 7, 2006 and then to February 16, 2006, but Miles refused, as he had earlier in the proceedings, to execute a Faretta waiver form.
The appellate record does not contain a reporter’s transcript for any of the pretrial conferences.
The trial court denied Miles’s request as untimely, noting that, although he had not requested a continuance, based on Miles’s statements regarding information he needed to prepare himself for trial, the court “would have to grant a continuance so that he’s in a position to represent his interest to the fullest extent possible.” As to the earlier requests for self-representation, the court found Miles’s refusal to sign the self-representation forms prevented the court from making the required inquiry whether Miles’s waiver of his right to appointed counsel was knowing and intelligent. As a result, the court concluded Miles’s earlier requests to represent himself had not been sufficiently unequivocal.
6. The Jury’s Verdict and Sentence
The jury convicted Miles on both counts and found true the special allegation Miles had personally used an assault rifle. Miles was sentenced to an aggregate state prison term of 14 years: the middle term of eight years for assault with a semiautomatic firearm, plus six years (the middle term) for the assault weapon enhancement. The court imposed and stayed the sentence of two years for possession of an assault rifle pursuant to section 654.
DISCUSSION
1. The Trial Court Did Not Err in Denying Miles’s Requests To Represent Himself
A defendant has the constitutional right under the Sixth and Fourteenth Amendments to represent himself or herself and may waive the right to counsel in a criminal case. (Faretta, supra, 422 U.S. at p. 819.) If the defendant is mentally competent and within a reasonable time before trial makes an unequivocal request, knowingly and intelligently after having been advised by the court of the dangers of self-representation, the request must be granted. (Id. at p. 835; People v. Valdez (2004) 32 Cal.4th 73, 97-98; People v. Welch (1999) 20 Cal.4th 701, 729.) “[U]nlike the right to be represented by counsel, the right of self-representation is not self-executing. In Faretta, . . . the court held that a knowing, voluntary, and unequivocal assertion of the right of self-representation, made weeks before trial by a competent, literate defendant, should have been recognized [citation]; subsequent decisions of lower courts have required expressly that the defendant make a timely and unequivocal assertion of the right of self-representation.” (People v. Marshall (1997) 15 Cal.4th 1, 20-21; see People v. Scott (2001) 91 Cal.App.4th 1197, 1203.)
In People v. Valdez, supra, 32 Cal.4th at pages 98 to 99, the Supreme Court explained, “We have emphasized the importance of an unequivocal request for self-representation. ‘The court faced with a motion for self-representation should evaluate not only whether the defendant has stated the motion clearly, but also the defendant’s conduct and other words. Because the court should draw every reasonable inference against waiver of the right to counsel, the defendant’s conduct or words reflecting ambivalence about self-representation may support the court’s decision to deny the defendant’s motion. A motion for self-representation made in passing anger or frustration, an ambivalent motion, or one made for the purpose of delay or to frustrate the orderly administration of justice may be denied.’ [Citation.] Moreover, the Faretta right is forfeited unless the defendant “‘articulately and unmistakably”’ demands to proceed in propria persona.”
a. The court lacked jurisdiction to consider Miles’s requests for self- representation while it entertained doubt as to his competency
The trial court properly declined to consider Miles’s requests to represent himself made on January 3, 2005 and September 23, 2005 because on both occasions the court had declared a doubt as to his mental competency and, as a result, all criminal proceedings were suspended. (See People v. Horton (1995) 11 Cal.4th 1068, 1108 [“[a]s a result of the doubt declared as to defendant’s mental competency, the criminal proceedings were suspended. [Citation.] Thus, the court lacked jurisdiction to rule upon defendant’s motion [citation] and accordingly properly declined to do so”].) For the same reason, to the extent Miles repeated his request at the March 16, 2005 competency hearing at which the court found him not competent and ordered him to Patton State Hospital, the trial court properly declined to rule on the request.
b. Miles’s request at the pretrial conference was not unequivocal
With respect to the renewed request apparently made at one of the pretrial conferences held in late January and early February 2006, none of the court’s minute orders reflects the denial of a Faretta motion; and the absence of a reporter’s transcript for the relevant dates makes it impossible for us to consider on appeal whether Miles in fact made a timely and unequivocal demand to represent himself. (See People v. Barnett (1998) 17 Cal.4th 1044, 1087 [to invoke right of self-representation there must be timely and unequivocal assertion of that right]; People v. Marshall, supra, 15 Cal.4th at pp. 20-21 [same].) To the extent the trial court on March 9, 2006 attempted to reconstruct the reasoning of the different trial judge who had presided at the pretrial conferences, we agree with its assessment that Miles’s refusal to complete the court-supplied written waiver form impeded the inquiry whether Miles’s waiver of his right to counsel was being made knowingly and intelligently and, in the absence of a reporter’s transcript of the proceeding, affirm its implied finding that Miles’s conduct thus reflected ambivalence about self-representation (see People v. Valdez, supra, 32 Cal.4th at p. 99). That implied finding adequately supports the decision to deny Miles’s motion.
It is the appellant’s burden to provide an adequate appellate record. (People v. Gordon (1990) 50 Cal.3d 1223, 1250, overruled on another point in People v. Edwards (1991) 54 Cal.3d 787, 835 [to preserve point for review on appeal, “a defendant must of course provide an adequate record”]; People v. Siegenthaler (1972) 7 Cal.3d 465, 469 [absence of preliminary hearing transcript from record on appeal precludes review of denial of defendant’s § 995 motion].) “‘“For an appeal to engage the consideration of an appellate court, it must be brought up on a record which, in addition to being otherwise formally sufficient, shows the error calling for correction. Such error is never presumed, but must be affirmatively shown, and the burden is upon the appellant to present a record showing it, any uncertainty in the record in that respect being resolved against him.” This basic rule is a corollary of the equally fundamental principle that all presumptions and intendments are in favor of the regularity of the action of the lower court in the absence of a record to the contrary.’” (People v. Green (1979) 95 Cal.App.3d 991, 1001, quoting People v. Clifton (1969) 270 Cal.App.2d 860, 862.)
c. The court did not abuse its discretion in denying Miles’s request during jury selection on the ground it was untimely
“In order to invoke the constitutionally mandated unconditional right of self-representation, a defendant must assert that right within a reasonable time prior to trial.” (People v. Horton, supra, 11 Cal.4th at p. 1110.) A motion not made within a reasonable time prior to trial is addressed to the sound discretion of the trial court. (People v. Valdez, supra, 32 Cal.4th at p. 102; People v. Windham (1977) 19 Cal.3d 121, 128, fn. 5.) A motion made immediately before or on the day of trial is generally considered untimely. (See People v. Howze (2001) 85 Cal.App.4th 1380, 1397; People v. Fitzpatrick (1998) 66 Cal.App.4th 86, 91, 92.)
In exercising its discretion the trial court properly considers the quality of counsel’s representation, the defendant’s prior proclivity to substitute counsel, the reason 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. Jenkins (2000) 22 Cal.4th 900, 959; People v. Marshall (1996) 13 Cal.4th 799, 827.) When the trial court exercises its discretion to deny a motion for self-representation as 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, supra, 85 Cal.App.4th at pp. 1397-1398.)
There can be no question that Miles’s final request to represent himself, made on the second day of jury selection, was untimely. A review of “the entire record -- including proceedings after the purported invocation of the right of self-representation” (see People v. Marshall, supra, 15 Cal.4th at p. 24) -- establishes the trial court acted well within its discretion in denying the motion. First, although Miles did not expressly couple his request for self-representation with a motion for a continuance, based on his statements at the hearing regarding lack of information and documents, as well as comments made in connection with a contemporaneous motion to replace his appointed counsel (People v. Marsden (1970) 2 Cal.3d 118), the trial court appropriately concluded a continuance would be necessary if Miles were to represent himself. Second, the court found Miles’s current counsel was providing effective representation; and it appears it was dissatisfaction and frustration with his counsel’s tactical decisions, as evidenced by the Marsden motion to replace him, that motivated Miles’s request after being content to proceed with counsel at the start of trial the previous day. Giving the trial court’s decision the “considerable weight” it is due, denial of the motion was not improper.
2. The Trial Court Erred in Failing To Conduct a Proper Competency Hearing
“A defendant is presumed competent unless the contrary is proven by a preponderance of the evidence.” (People v. Lawley (2002) 27 Cal.4th 102, 131.) A defendant is incompetent if it is proved that “as a result of a mental disorder or developmental disability, he or she is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.” (Ibid.)
As reflected in both the minute order and reporter’s transcript from the September 23, 2005 hearing, the trial court declared doubt as to whether Miles was competent to stand trial and suspended criminal proceedings pursuant to section 1368, subdivisions (a) and (b). The court, therefore, was required to hold a competency hearing pursuant to section 1369, which mandates specific procedures for the conduct of such hearings, including the introduction of evidence and presentation of argument. “[A]vailable incidents of the hearing procedure,” which can be waived, include the defendant’s right “to confront and cross-examine witnesses.” (People v. McPeters (1992) 2 Cal.4th 1148, 1169.)
Section 1369 states, “A trial by court or jury of the question of mental competence shall proceed in the following order: [¶] (a) The court shall appoint a psychiatrist or licensed psychologist, and any other expert the court may deem appropriate, to examine the defendant. . . . [¶] . . . [¶] (b)(1) The counsel for the defendant shall offer evidence in support of the allegation of mental incompetence. [¶] (2) If the defense declines to offer any evidence in support of the allegation of mental incompetence, the prosecution may do so. [¶] (c) The prosecution shall present its case regarding the issue of the defendant’s present mental competence. [¶] (d) Each party may offer rebutting testimony, unless the court, for good reason in furtherance of justice, also permits other evidence in support of the original contention. [¶] (e) When the evidence is concluded, unless the case is submitted without final argument, the prosecution shall make its final argument and the defense shall conclude with its final argument to the court or jury. [¶] (f) In a jury trial, the court shall charge the jury, instructing them on all matters of law necessary for the rendering of a verdict. It shall be presumed that the defendant is mentally competent unless it is proved by a preponderance of the evidence that the defendant is mentally incompetent. The verdict of the jury shall be unanimous.”
Although the trial court apparently conducted what it considered to be a competency hearing on December 21, 2005 and concluded Miles was competent to stand trial, it failed to provide Miles the procedural protections required by section 1369. According to the prosecutor, Dr. Markman had prepared a report dated October 20, 2005 finding Miles competent; but there is no indication that report or any other medical or psychiatric evaluation of Miles was offered into evidence or considered by the court, nor was defense counsel given the opportunity to cross-examine Dr. Markman. Indeed, neither defense counsel nor the prosecutor believed a section 1369 hearing was taking place. After the court expressed its conclusion Miles was not “1368,” defense counsel stated, “I believe we could have a competency hearing at some point”; and the prosecutor replied, “I don’t think we need one at this point based on the inquiry that was just had, the court just made, and Dr. Markman’s finding.” Defense counsel later objected to setting the matter for a pretrial conference and renewed his request for a competency hearing.
According to defense counsel, because Miles refused to speak with Dr. Sharma, Dr. Sharma maintained his original opinion Miles was not competent. There is no indication the court considered Dr. Sharma’s initial report either.
In response to defense counsel’s statement the trial court declared, “Fine, but he seems to be snap dandy well to me today.”
Although a competency hearing need not progress strictly within the guidelines of section 1369 (see People v. Leonard (2007) 40 Cal.4th 1370, 1390 [trial court’s failure to appoint director of regional center for the developmentally disabled to evaluate defendant’s competency was harmless error]; People v. Maxwell (1981) 115 Cal.App.3d 807, 812 [court’s determination defendant was competent was proper when court “had conducted as much of a hearing under section 1369 as the parties permitted under the circumstances”]), on this record the court’s perfunctory determination Miles was competent, made without following even the most rudimentary trial procedures, was reversible error. “When a trial court suspends criminal proceedings based on a doubt that a criminal defendant is competent to stand trial, and the court thereafter fails to hold a competency hearing, the trial court ‘acts in excess of jurisdiction by depriving the defendant of a fair trial’ (People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 70), and any ensuing criminal conviction must be set aside (People v. Marks (1988) 45 Cal.3d 1335, 1340; People v. Hale (1988) 44 Cal.3d 531, 541).” (People v. Leonard (2007) 40 Cal.4th 1370, 1390.)
3. The Matter Is Remanded for the Trial Court To Determine Whether a Retrospective Hearing May Be Held
In rare cases a retrospective competency hearing may be constitutionally permissible. (People v. Kaplan (2007) 149 Cal.App.4th 372, 387-388; People v. Ary (2004) 118 Cal.App.4th 1016, 1028.) “The inherent difficulty of such a determination, of course, is that there will seldom be sufficient evidence of a defendant’s mental state at the time of trial on which to base a subsequent competency determination.” (Ary, at p. 1028.) However, when there is evidence regarding the defendant’s competency at the time of trial, the trial court may be able “to determine whether the available evidence and witnesses are sufficient to permit it to reach a ‘reasonable psychiatric judgment’ of defendant’s competence to stand trial.” (Id. at p. 1029; Kaplan, at p. 389 [case remanded to trial court to determine whether retrospective competency hearing should be held; defendant had been evaluated by two doctors at beginning of trial to determine his competency, doctors had filed reports summarizing their observations and conclusions and doctors may be available to testify at retrospective competency hearing].) It is the prosecution’s burden to prove such an effective retrospective competency hearing can be held. (Ary, at p. 1029; Kaplan, at p. 390.)
Here, the trial court’s error was not “rooted in a fundamental inattentiveness to the defendant’s mental condition” (People v. Ary, supra, 118 Cal.App.4th at p. 1028), but in its failure to have the available evidence properly evaluated. Dr. Markman had prepared a report, and Dr. Sharma was apparently going to stand by his initial report because Miles refused to meet with him. If Dr. Markman and Dr. Sharma are available to be cross-examined, it may be that sufficient evidence exists for the trial court to make a determination of Miles’s competency at the time of the trial. (Because Miles should not be rewarded for his unwillingness to meet with Dr. Sharma, the absence of a second or updated report from Dr. Sharma should not be dispositive.) Accordingly, we remand to the trial court to determine whether a retrospective competency hearing is appropriate.
DISPOSITION
The judgment is reversed, and the matter remanded to allow the trial court to decide whether a retrospective competency hearing should be held to determine if Miles was competent at the time of trial in March 2006. If a retrospective competency hearing is held and Miles is found to have been competent at the time of trial, the court shall reinstate the judgment. If a retrospective competency hearing is held and Miles is found to have been incompetent at the time of trial, or if the court determines a retrospective competency hearing cannot be held, a retrial is required.
We concur: WOODS, J., ZELON, J.