Opinion
B220185
12-01-2011
THE PEOPLE, Plaintiff and Respondent, v. ERIC MARK ROBINSON, Defendant and Appellant.
Lisa M. Bassis, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. PA063541)
APPEAL from a judgment of the Superior Court of Los Angeles County. Shari Silver, Judge. Affirmed.
Lisa M. Bassis, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Eric Mark Robinson (defendant) appeals from his conviction of one count of criminal threats and two counts of felony resisting arrest. Defendant contends that the trial court erred in finding him mentally competent to stand trial and in allowing him to represent himself during pretrial proceedings. He also contends that the evidence was insufficient to support his convictions of resisting arrest, that his removal for disruptive behavior during sentencing violated his constitutional and statutory rights to be present during a critical stage of the proceedings, and that the trial court made sentencing errors requiring reversal. We conclude that none of defendant's contentions has merit, and affirm the judgment.
BACKGROUND
1. Procedural Background
Defendant was charged in count 1 with making felony criminal threats to his brother Craig Robinson (Craig), in violation of Penal Code section 422, and misdemeanor resisting, obstructing, or delaying a peace officer (count 2), in violation of section 148, subdivision (a)(1). The information was later amended to add two counts of felony resisting an executive officer by means of threats and violence (Officer Nelson Fong in count 3 and Officer Mark Richardson in count 4), in violation of section 69. The amended information also alleged as to counts 1, 3, and 4, for purposes of the "Three Strikes" law, that defendant had suffered a 1993 conviction of manslaughter. The information also alleged the 1993 manslaughter conviction as to count 1, for purposes of section 667, subdivision (a)(1). The same allegation as to counts 3 and 4 was later stricken upon motion of the People, as it had been erroneously charged. Prior to the verdicts, the trial court dismissed count 2 upon motion of the prosecutor.
All further statutory references are to the Penal Code, unless otherwise indicated.
Sections 1170.12, subdivisions (a) through (d), and 667, subdivision (b).
On April 16, 2009, when jury trial was first scheduled to begin, defendant requested self-representation or new counsel and the trial court held a closed Marsden hearing. After hearing from defendant and his counsel, the trial court denied defendant's request for a new attorney, gave defendant the appropriate forms to apply for self-representation, and set that motion for hearing the following day.
See People v. Marsden (1970) 2 Cal.3d 118.
The next day, defendant continuously interrupted the court by arguing his innocence and criticizing his brother and the state of the evidence against him. This behavior coupled with the events of the day before, led the trial court to declare a doubt regarding defendant's mental competence to stand trial. The court appointed two mental health experts pursuant to Evidence Code section 730, adjourned the proceedings until May 19, 2009, and continued defendant's motion to proceed in propria persona to the same date.
At the May 19 hearing, defense counsel submitted the issue of competence on the reports of the two experts, psychologist Haig Kojian and psychiatrist Kory Knapke, without presenting other evidence or argument. The two experts came to different conclusions. Dr. Knapke found defendant competent to stand trial, while Dr. Kojian was of the opinion that defendant was not competent to proceed. The trial court found Dr. Knapke's report more persuasive and concluded that defendant was competent to stand trial. The proceedings resumed.
After continued discussions regarding self-representation, defendant persisted in his desire to represent himself. He filed an initialed and signed written advisement and waiver of his right to counsel ("Faretta Waiver"). After giving defendant additional time to confer with his attorney and explaining the disadvantages of self-representation, the trial court granted the motion and continued the trial to a later date.
Faretta v. California (1975) 422 U.S. 806.
Over the following three months, defendant filed several pretrial motions, one to set aside the information, one for discovery, two motions to suppress evidence, and motions to reduce the charges to misdemeanors, to strike prior convictions, to change venue, for transcripts, and for a Boykin/Tahl hearing. Defendant also made several oral motions, including a request for advisory counsel. The discovery motion was granted. All other motions were denied.
See Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.
On August 17, 1009, just before the voir dire began, defendant moved for a continuance. The following day, before the trial court ruled, defendant asked the court to terminate his pro. per. status and appoint stand-by counsel, Mr. Avery, to represent him. The trial court granted the request, but a few days later, defendant changed his mind, interrupted the prosecutor's opening statement, and once again requested self-representation. The trial court denied the motion and Mr. Avery represented defendant throughout the remainder of the trial.
The jury found defendant guilty of counts 1, 3, and 4, as charged. Defendant waived his right to a jury trial on the allegation that he had a prior manslaughter conviction in 1993. The trial court heard the evidence and found the allegation true.
At the October 29, 2009 sentencing hearing, defense counsel requested additional psychological testing to prepare for sentencing, but did not press for a ruling after defendant stated that he would not cooperate in such an evaluation. As his counsel was addressing the court regarding sentencing, defendant interrupted with comments or objections. After several such interruptions and a warning from the trial court, defendant was removed from the courtroom until after pronouncement of sentence.
The trial court sentenced defendant to a total prison term of 13 years 8 months, and ordered a DNA test, as well as the payment of mandatory fines and fees. As to count 1, the court selected the high term of three years and doubled it to six years under the Three Strikes law. The court found that defendant committed counts 3 and 4 against separate victims, Officer Richardson and Officer Fong, and thus sentenced defendant to two consecutive terms of eight months (one-third the two-year middle term), doubled to 16 months under the Three Strikes law. The court added five years for the prior conviction under section 667, subdivision (a). Defendant was awarded a total of 421 custody credits, which included 281 actual days in custody and 140 local conduct credits. Defendant was then brought back into the courtroom to hear his total sentence and his appeal rights.
Defendant filed a timely notice of appeal from the judgment.
2. Evidence
On January 22, 2009, defendant and his older brother Craig had one of their frequent arguments after consuming alcohol. Defendant said that he was going to get a gun or a bullet and shoot Craig and the "old lady," referring to Helen Robinson, their 89-year-old mother, in whose home they both lived. Defendant then threw milk or water in Craig's face, and Craig walked out of the house to call the police. Craig believed that defendant was capable of shooting him because defendant had threatened to shoot Craig in the past; had hit Craig and others; and had fatally shot another brother in 1992.
After learning from Craig about the threat, the presence of a shotgun, a BB gun, and Mrs. Robinson in the house, the responding officers observed defendant in the driveway. When the officers asked to speak to him, defendant belligerently said "no," went into the house, and locked the door. Additional officers and a SWAT unit arrived soon after they were summoned. Defendant refused several demands to come out with his hands raised and instead yelled profanities and said he did not trust the police department.
While inside defendant called the United States Marshall's office at the federal courthouse and spoke to Special Deputy Marshal George Gammon, the court security officer. Defendant told Deputy Gammon that he would not surrender to the police and that the front door was barricaded. Defendant said, "Fuck the LAPD. I'm going to hang them by their balls." Defendant refused to allow his mother to leave the house, but did allow Deputy Gammon to speak to her by telephone. Deputy Gammon asked about weapons, and she told him there was a rifle under the bed. Eventually, defendant moved the chair so that his mother could leave, but he remained in the house.
Defendant remained barricaded in the house for approximately 90 minutes as SWAT and other officers waited outside. Sometime after Mrs. Robinson was allowed to leave the house defendant emerged from the back door. SWAT supervisor Sergeant James Bilodeau, and SWAT officers Nelson Fong, Mark Richardson, and Rick Anzaldo all testified about the ensuing events. Officer Fong had told defendant, "Stop. Get down on the ground," and "Los Angeles Police. Get down on the ground." Defendant did not comply. Defendant seemed agitated and angry, and aggressively lurched toward the officers with clenched fists, despite their continued commands to stop and get down on the ground.
As defendant advanced toward them, Officer Anzaldo warned defendant that if he took another step forward he would get "zapped," and may be hurt. Defendant continued forward, and Officer Anzaldo discharged a taser from about 12 feet away. Although darts hit defendant, they were ineffective. Nevertheless Officers Fong and Richardson then reached for defendant's arms, each grabbing one side as one said, "Put your hands behind your back." Defendant tried to get away from them by flailing his arms and thrashing about. The officers used their body weight to force defendant to the ground where he continued to resist. Sergeant Bilodeau defined "thrashing" as moving the entire upper body in an aggressive way side to side with the back straight in an apparent attempt to pull away. Defendant continued to thrash about while Officers Fong and Richardson struggled to gain control so they could handcuff him. When he was not flailing his arms, defendant tensed them against his side, using his strength to keep the officers from pulling them behind his back.
Defendant became more agitated and aggressive and would not comply with commands. The taser was again activated. Although the darts were effective this time, defendant did not go completely limp. Sergeant Bilodeau had to assist as Officers Fong and Richardson struggled to pull defendant's thrashing arms behind him. Defendant finally relaxed and Sergeant Bilodeau was able to handcuff him.
On cross-examination defense counsel elicited from the officers that defendant did not spit, kick, punch, bite, strike, or claw at them during the struggle. Officer Anzaldo testified however, that he interpreted defendant's behavior as an attempt to harm the officers.
Craig's unloaded shotgun and ammunition were later removed from his bedroom closet. The bedroom and closet doors were unlocked and open. The shotgun was tested and found to be operational. The police also recovered a BB gun, a crossbow, and BB pellets.
Defendant presented no evidence.
DISCUSSION
I. Competence to Stand Trial
Defendant contends that the trial court used the wrong standard to determine that he was competent to stand trial.
The determination is "'whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding -- and whether he has a rational as well as factual understanding of the proceedings against him.'" (Dusky v. U.S. (1960) 362 U.S. 402, 402; People v. Ramos (2004) 34 Cal.4th 494, 507; § 1367, subd. (a).) Defendant was presumed competent and bore the burden to prove otherwise by a preponderance of the evidence. (See § 1369, subd. (f); People v. Ary (2011) 51 Cal.4th 510, 518.)
To demonstrate his contention that the trial court failed to apply the correct standard, defendant points to comments the court made while explaining why Dr. Kojian's opinion was not persuasive. The court stated:
"Dr. Kojian indicates that the defendant does understand the proceedings against him. He simply opines that because of the mental disorder, he's not able to . . . rationally cooperate with his attorney, but does not give any diagnosis of any kind of mental illness. He recommends the defendant be treated with medication. He has no idea as to what medication would be appropriate because there's no diagnosis."
Defendant points out that because Dr. Kojian was a psychologist it was not within the scope of his license to give an opinion as to the appropriate medication. (See § 1369, subd. (a).) Defendant argues that his failure to make a diagnosis or recommend a medication was not a proper basis to reject Dr. Kojian's opinion. Defendant suggests that the trial court based its determination of competence entirely on the absence of a diagnosis and identification of medication in Dr. Kojian's report.
We find nothing in the trial court's comments to indicate that the court did not engage in the appropriate inquiry into defendant's ability to consult with his lawyer and his understanding of the proceedings against him. On the contrary, the comments establish that the court did consider the two factors by noting Dr. Kojian's opinion that defendant understood the proceedings against him, while taking issue with his conclusion that defendant was not rationally able to cooperate with counsel. There are no "magic words" required of the court in making its determination, so long as the court clearly states its finding whether the defendant is mentally competent to stand trial. (People v. Marks (1988) 45 Cal.3d 1335, 1343.) Here, the trial court clearly made that finding.
Although couched in terms of the standard to be applied, defendant's real complaint is that he disagrees with the trial court's rejection of Dr. Kojian's opinion. He argues that reversal is required because the court may have misunderstood the scope of the psychologist's license. At the same time, defendant acknowledges that whatever medication might help him was irrelevant to the basic inquiry. Indeed, the issue of medication becomes relevant only when there is a finding of incompetence, which was not the case here. (See § 1369, subd. (a).) Defendant cites no authority for his suggestion that reversal is required due to possibly erroneous comments by the trial court regarding irrelevant issues.
In fact, the appropriate test on appeal is whether the trial court's ruling is supported by substantial evidence. (People v. Marks (2003) 31 Cal.4th 197, 214.) The test is not whether an expert's opinion was erroneously disregarded, as the weight to be given expert opinion rests exclusively with the trier of fact. (See People v. Wolff (1964) 61 Cal.2d 795, 804; § 1127b.) Evidence is not rendered insufficient by the rejection of the opinion of one or more experts. (People v. Bean (1988) 46 Cal.3d 919, 933, fn. 4.)
Defendant contends that Dr. Knapke's report was insufficient evidence of competence because it conflicted with Dr. Kojian's report. In addition, he argues that the court should also have considered defendant's behavior during the Marsden hearing.Defendant concludes that his behavior provided substantial evidence of an inability to assist his attorney. Defendant appears to confuse the test for finding mental incompetence to stand trial with the test for requiring the trial court to suspend the proceedings and hold a competency hearing. The latter requirement is triggered whenever substantial evidence of incompetence is introduced. (See Pate v. Robinson (1966) 383 U.S. 375, 384-386; People v. Welch (1999) 20 Cal.4th 701, 738 (Welch).) Here the proceedings were in fact suspended and defendant was afforded a competency hearing during which he bore the burden to prove his incompetence to stand trial. (§ 1369, subd. (f); People v. Ary, supra, 51 Cal.4th at p. 518.) Because defendant submitted to the court the issue of his competence on the two reports, he may not now be heard to complain that the trial court should have considered other evidence. (People v. Weaver (2001) 26 Cal.4th 876, 904.)
Defendant spoke very emphatically during the hearing, and showed difficulty in listening or accepting what the judge and his attorney said to him. He expressed the belief that his attorney had lied to him about witness statements and the law, and that he was working with the district attorney. Defendant also insisted that his brother had lied and was preventing his mother from testifying at the preliminary hearing.
In sum, the test on appeal is not whether substantial evidence of mental incompetence was presented or whether the trial court should have valued one expert opinion over another. Our task is to review all the evidence in the light most favorable to the court's finding of competence to determine whether substantial evidence supports that finding. (People v. Marks, supra, 31 Cal.4th at p. 214.) The opinion of a single witness, even an expert witness, may provide substantial evidence to support a finding by the trier of fact. (People v. Vega (2005) 130 Cal.App.4th 183, 190.)
Substantial evidence supports the trial court's ruling. Both of the experts' reports were before the court and it was Dr. Knapke's report the trial court found persuasive. Dr. Knapke reported that defendant was able to cooperate rationally during the interview; he was not psychotic or delusional, did not appear to be responding to any internal stimuli, and was able to focus on the interview. Dr. Knapke could not rule out a mood disorder such as bipolar disorder, because defendant's speech was pressured and he expressed highly emotionally charged feelings. However, Dr. Knapke had very limited information about defendant and found the likelihood of such an illness decreased due to the absence of past psychiatric hospitalizations or use of psychotropic medication. Dr. Knapke concluded on the limited information he had, that defendant's only significant psychiatric problem was alcohol dependence.
Dr. Knapke found that defendant understood the charges and the proceedings against him, demonstrated an understanding of basic courtroom proceedings, and although defendant was unhappy with his attorney, he had the capacity to cooperate rationally with an attorney if he chose to do so. Dr. Knapke concluded that defendant was competent to stand trial. In that defendant failed to overcome the presumption that he was competent to stand trial, we find no error in the trial court's conclusion. (See § 1369, subd. (f); People v. Marks, supra, 31 Cal.4th at p. 214.) II. Validity of Faretta Waiver
Defendant contends that the trial court erred in permitting him to represent himself. He argues that the trial court gave him inadequate admonitions on the risks of self-representation; failed to inquire into his education and familiarity with legal procedures; and failed to properly consider whether he was mentally competent to represent himself.
The Sixth Amendment to the United States Constitution grants criminal defendants the right to counsel in all proceedings that may substantially affect their rights. (Mempa v. Rhay (1967) 389 U.S. 128, 133-134.) The right to counsel may be waived, if the waiver is knowing and intelligent. (Faretta, supra, 422 U.S. at p. 807; People v. Bradford (1997) 15 Cal.4th 1229, 1363.) Defendant bears the burden to demonstrate that he did not intelligently and knowingly waive his right to counsel. (People v. McArthur (1992) 11 Cal.App.4th 619, 627.)
A. The Admonitions and Inquiry were Adequate
Defendant contends that the trial court inadequately advised him regarding the risks of self-representation and that the court failed to inquire into his education and familiarity with legal procedures.
Before accepting a waiver of counsel and permitting a defendant to represent himself, the court must make him "aware of the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open.' [Citation.]" (Faretta, supra, 422 U.S. at p. 835.)
"No particular form of words is required in admonishing a defendant who seeks to waive counsel and elect self-representation; the test is whether the record as a whole demonstrates that the defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case. [Citations.]" (People v. Koontz (2002) 27 Cal.4th 1041, 1070 (Koontz).) "On appeal, we examine de novo the whole record -- not merely the transcript of the hearing on the Faretta motion itself -- to determine the validity of the defendant's waiver of the right to counsel. [Citation.]" (Ibid.)
Defendant contends that the admonitions and inquiry were inadequate because they "fell short" of those recommended in People v. Lopez (1977) 71 Cal.App.3d 568 (Lopez). He argues that under Lopez the court was required to caution defendant not only that he must comply with all rules of law, criminal procedure and evidence, but also that he must comply with such rules when making motions and objections, presenting evidence, and during voir dire and argument. Defendant also argues that the trial court was required to warn him that he would have no more privileges than any other incarcerated self-represented defendant. (See Id. at pp. 572-573.)
The Lopez court did not establish "rigid standards." (Lopez, supra, 71 Cal.App.3d at p. 571.) "[T]he purpose of the suggested Lopez admonitions is to ensure a clear record of a knowing and voluntary waiver of counsel, not to create a threshold of competency to waive counsel. [Citations.]" (Koontz, supra, 27 Cal.4th at p. 1071.) The trial court was not required to specify that the law and rules applied to motions, objections, voir dire, and other proceedings. (Ibid.) Further, defendant cannot meet his burden to demonstrate an invalid waiver "simply pointing out that certain advisements were not given." (People v. Truman (1992) 6 Cal.App.4th 1816, 1824; see also Koontz, supra, at p. 1070 [entire record reviewed, not merely Faretta hearing].)
At the Faretta hearing the trial court amply warned defendant of the disadvantages and risks of self-representation. The trial court explained that self-representation would be unwise because defendant had not been to law school, and because he would be opposed by an attorney who was very experienced in the law and court procedure -- that he would be "outgunned." The trial court warned defendant that the court would not be able to give him legal advice or help him to present evidence. The court also warned that being in custody would cause difficulty, that he could not obtain a reversal on appeal on the ground that his self-representation was not competent, and that he was required to obey the rules of court. In addition, defendant signed a four-page Faretta waiver form that included thorough advisements including those that defendant contends the court should have given. The form also informed defendant of his right to be represented by counsel, as well as other trial rights.
Defendant's claim that the trial court made no inquiry into his education and familiarity with legal procedures also lacks merit. Defendant indicated on the Faretta waiver form that he was 44 years old, had graduated from high school, and could read and write. Further, the court had observed defendant in prior hearings and had previously questioned him regarding his understanding of law and procedure.
Defendant contends that regardless of the adequacy of the advisements, the record established that he was not in fact aware of the dangers and disadvantages of self-representation. He compares his behavior with that of the defendant in Welch, and argues that his similar behavior demonstrated that he did not in fact comprehend the risks of self-representation. Welch has no application here, as defendant's Faretta motion was granted, not denied.
It is evident from our review of the record that defendant "understood the disadvantages of self-representation, including the risks and complexities of the particular case." (Koontz, supra, 27 Cal.4th at p. 1070.) Defendant had many discussions regarding self-representation with his attorney prior to the trial court's oral admonitions, and the court called a recess in the Faretta hearing to give defendant additional time to confer with his attorney. Several times during the trial court's oral admonitions, defendant replied in the affirmative when asked whether he understood. When the court asked for questions, defendant had none.
Moreover, defendant's signature on the Faretta waiver form certified that he had read, understood, and considered all of the warnings. A Faretta form "serves as 'a means by which the judge and the defendant seeking self-representation may have a meaningful dialogue concerning the dangers and responsibilities of self-representation.' [Citation.]" (People v. Blair (2005) 36 Cal.4th 686, 709.) The trial court may question the defendant orally about his responses, but the failure to do so does not invalidate the waiver, so long as the warnings and the defendant's understanding are clear from the writing. (Ibid.) The warnings on the form were clear and defendant indicated his understanding of each advisement with his initials.
We thus find no merit to defendant's contention that the trial court's admonitions and inquiry were inadequate or to his claim that he did not understand them.
B. No Heightened Standard Required
Defendant contends that the trial court erred in failing to exercise the discretion afforded by the United States Supreme Court in Indiana v. Edwards (2008) 554 U.S. 164 (Edwards) to apply a standard of competence for self-representation higher than the standard of competence to stand trial.
A similar contention was made and rejected in People v. Taylor (2009) 47 Cal.4th 850 (Taylor). The California Supreme Court noted that while the holding of Edwards permits the states to adopt a different standard of competence for mentally ill defendants who wish to represent themselves, it did not mandate such a dual standard and California has not done so. (Taylor, supra, at pp. 877-878.) Thus the standard of competence for self-representation remains the same as the standard of competence to stand trial. (Id. at p. 880, citing People v. Hightower (1996) 41 Cal.App.4th 1108, 1116 (Hightower).)
Defendant contends that the holding of Taylor is limited to pre-Edwards trials in which the defendant was permitted to represent himself and that Edwards now requires a heightened standard. As respondent observes, defendant has misconstrued both Edwards and Taylor. The California Supreme Court in Taylor did not limit its holding to Faretta motions made prior to Edwards, and nothing in Edwards required California to adopt a heightened standard. (Taylor, supra, 47 Cal.4th at pp. 877-878.) It remains the rule in California that any defendant found mentally competent to stand trial can be mentally competent to represent himself. (Id. at p. 876.) The trial court did not err in allowing defendant his right of self-representation.
III. Substantial Evidence Supports Counts 3 and 4
Defendant contends that his convictions of violating section 69 were not supported by substantial evidence. Defendant further contends that counts 3 and 4 amounted to no more than misdemeanor violations of section 148, subdivision (a)(1). We disagree.
Section 148, subdivision (a)(1), provides that "[e]very person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician . . . in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed" is guilty of a misdemeanor.
When a criminal conviction is challenged as lacking evidentiary support, "the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578; see also Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) We must presume in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) Reversal on a substantial evidence 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.)
Certainly defendant's conduct prior to him emerging from his house constituted a violation of section 148. He disobeyed officers' demands that he come out of the house by barricading himself inside for approximately an hour and a half. A passive refusal to cooperate that delays officers in the discharge of their lawful duties is one of the ways section 148 can be violated. (In re Bacon (1966) 240 Cal.App.2d 34, 52, disapproved on another point in In re Brown (1973) 9 Cal.3d 612, 623-624.)
However, once defendant emerged from the house, he not only refused the officers' commands to stop and get down on the ground, he continued to approach them in an agitated and angry manner with clenched fists. Taking an aggressive posture and staring at the officers, he lurched toward them. He continued this behavior in the face of a warning that he might be hurt by a taser discharge, and even after he was struck by taser darts. When Officers Fong and Richardson each took one of defendant's arms, defendant struggled by flailing his arms, aggressively moving his entire upper body side to side, tensing his arms against his side, and using his strength to keep the officers from pulling his arms behind his back. Even after a second taser strike, defendant continued to thrash about, until a third officer moved in to assist Officers Fong and Richardson by handcuffing defendant.
Defendant first argues that his attempt to deter or prevent the officers from carrying out their duties was not accomplished by means of threat because he made no verbal threat. Defendant assumes that any threat must be verbal, but cites no authority which so holds. While most of the cases in which a defendant has been convicted of committing the first part of section 69 involved verbal threats (see, e.g., In re Manuel G. (1997) 16 Cal.4th 805, 819-820; People v. Hines (1997) 15 Cal.4th 997, 1060), neither the statute nor published authority limits the prohibited conduct to verbal expressions. Indeed, substantial evidence of a threat was found in People v. Patino (1979) 95 Cal.App.3d 11, 28, where the defendant had yelled, screamed and advanced toward officers in a threatening manner, without any indication that the defendant used any particular words. Similarly defendant had been yelling, had threatened to hang the police "by their balls," and his behavior in lurching toward officers in an agitated and angry manner with clenched fists was sufficiently threatening to cause the officers to bring in a taser before trying to take hold of him.
Regardless, we need not hold as a matter of law that nonverbal behavior may constitute "any threat" under the first part of the statute because we find substantial evidence that defendant resisted the officers by the use of force or violence, thus violating the second part of section 69. As we explain, defendant's contention that flailing, thrashing, and tensing the muscles are not acts of force or violence has no merit.
Because California law does not define force or violence for purposes of section 69, defendant relies on federal authority construing title 18 of the United States Code, section 16, which defines "crime of violence," as not including the negligent or reckless use of physical force against a person. (See Leocal v. Ashcroft (2004) 543 U.S. 1, 11 [negligence]; Fernandez-Ruiz v. Gonzales (2006) 466 F.3d 1121, 1129 [reckless].) Such authority is inapplicable, as defendant does not argue that the flailing, thrashing, and tensing was negligent or reckless. Instead, he focuses on one part of the federal statute's definition of crime of violence that includes physical force against the person of another. Observing that he did not attempt to punch, kick, claw, knee, or bite the officers, defendant argues that he used no force or violence against them.
Defendant was not convicted of violating federal law. Nevertheless, were we to apply the federal definition of crime of violence, section 69 and defendant's conduct would surely qualify. Defendant has picked out only those morsels of the federal statute that support his argument. However, title 18 of the United States Code, section 16(a), more expansively defines a crime of violence as "an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another." Section 16(b) broadly defines a crime of violence as "any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." At the very least, defendant's conduct involved a substantial risk that physical force would be used against the officers and was thus a crime of violence.
Moreover, we reject defendant's argument that section 69 does not proscribe violent resistance unless it consists of such conduct as hitting, kicking, or biting the officer. Defendant contends that his argument is supported by reasoning in People v. Martin (2005) 133 Cal.App.4th 776 (Martin). We disagree. Like respondent, we find that Martin defeats defendant's argument. There the defendant unsuccessfully argued that the multiple-victim exception to section 654 was inapplicable to section 69 because "'resisting arrest is not framed as a crime against the officers. In the definition of resisting an officer, the violence and force [are] implicitly used to get away from the officer not directed towards him.'" (Martin, supra, at p. 782.) Rejecting that argument, the appellate court explained that a violation of section 69 was in fact a crime of violence "against a person" although the statute did not use those words. (Martin, at p. 782.)
We conclude that defendant's flailing, thrashing, and tensing the muscles to prevent officers from handcuffing were acts of resistance "by the use of force or violence" as contemplated by section 69. As the evidence overwhelmingly established that defendant knowingly engaged in such behavior in order to resist the officers' attempt to detain him, we conclude that substantial evidence supported defendant's convictions under section 69.
IV. No Error in Removing Defendant at Sentencing
Defendant contends that by removing him during the sentencing hearing, the trial court violated his constitutional and statutory rights to be personally present during a critical stage of the proceedings.
A criminal defendant has a constitutional and statutory right to be present at all critical stages of the proceedings, including sentencing hearings. (U.S. Const., 6th & 14th Amends; Cal. Const., art. I, § 15; §§ 977, subd. (b)(1), 1043, subd. (a), 1193, subd. (b).) However, the right to be present at sentencing may be deemed waived if the defendant is disruptive. (Illinois v. Allen (1970) 397 U.S. 337, 343; Welch, supra, 20 Cal.4th at p. 773.)
Defendant acknowledges that a defendant may be removed for disruptive behavior, but he argues that his behavior was not sufficiently disruptive to warrant removal. He also argues that before removing him, the court was required to threaten to hold him in contempt, call a recess to allow him to cool off, and assure him that he could return as soon as he agreed to conduct himself in an orderly manner.
The cases cited by defendant do not hold that there is an established threshold of disruptive behavior below which the trial court may not remove a disruptive defendant. (See, e.g., Welch, supra, 20 Cal.4th at pp. 773-774; People v. El (2002) 102 Cal.App.4th 1047; El v. Lamarque (C.D.Cal. 2003) 293 F.Supp.2d 1107; Franco v. Costello (S.D.N.Y. 2004) 322 F.Supp.2d 474.) Further, the lesser measures cited by defendant (along with binding and gagging), are constitutionally permissible but not, as defendant suggests, prerequisites to removal. (Illinois v. Allen, supra, 397 U.S. at p. 343.) Indeed, courts "must be given sufficient discretion to meet the circumstances of each case. "It is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country. The flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated. We believe trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case. No one formula for maintaining the appropriate courtroom atmosphere will be best in all situations." (Ibid.; see also Welch, supra, at p. 773.)
Defendant was persistently disruptive, defiant and stubborn. At least 30 times during pretrial proceedings and trial, the trial court had to remind defendant not to interrupt, engage in outbursts, make faces, gesture, or raise his voice. When defendant disrupted the prosecution's opening statement, the court threatened to place him in lockup and admonished the jury to disregard his outburst. During the trial on defendant's prior conviction, after defendant refused to cooperate with the fingerprint expert and continuously interrupted the court, the trial court warned defendant that if he continued to disrupt court proceedings, he would be placed into lockup for the remainder of the trial and for sentencing. Defendant continued to interrupt the court and his own attorney during the trial and into sentencing.
During the sentencing hearing, the court again warned defendant that he would be removed from the courtroom and placed into lockup. Defendant continued to interject comments. The court finally said, "Sir, if you open your mouth one more time, you will be taken into lockup. Do you understand?" Hearing no response, the court repeated, "Do you understand? Yes or No?" Defendant answered, "Yes, Your Honor," but moments later, he once again interrupted his attorney's address to the court, saying, "I object. There is no proof of that." Defendant was then ordered out of the courtroom, and the hearing proceeded. After sentence was pronounced, defendant was brought back into the courtroom, and the sentence was explained to him.
The trial court was more than patient with defendant, took reasonable measures to avoid removing him, and gave him ample warning of the potential consequences of his behavior. We find no abuse of discretion.
We also reject defendant's contention that any error in removing him would be reversible per se. Had the trial court erred, its ruling would be subject to a harmless error analysis, unless defendant was deprived of his right to counsel as well as his presence during a critical stage. (See Rushen v. Spain (1983) 464 U.S. 114, 118-119 & fn. 2; In re Levi (1952) 39 Cal.2d 41, 44-45; People v. El, supra, 102 Cal.App.4th at pp. 1049-1050 & fn. 1.) Defendant was ably represented by counsel at sentencing -- more ably once defendant was removed and counsel was able to address the court without interruption. Though defendant has speculated that he was prejudiced by his absence, he has not specified any particular harm he might have suffered.
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V. No Error in Use of Sentencing Factors
Defendant contends that the trial court used the same facts to impose consecutive sentences as to counts 3 and 4 as it used to impose the upper term on count 1. Though not set out as a separate issue, defendant also contends that the court used improper factors to impose the upper term on count 1.
Respondent contends that defendant has forfeited his sentencing issues by not raising them first in the trial court. (See People v. Scott (1994) 9 Cal.4th 331, 356 [objections to reasons supporting discretionary sentencing must be made below to preserve challenge on appeal].) Defendant counters that if his contentions are forfeited, reversal is required by his counsel's ineffective assistance in failing to challenge the trial court's reasons to impose the upper and consecutive terms.
As defendant recognizes, a claim of ineffective assistance of counsel need not be addressed unless he has shown prejudice from counsel's act or omission. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694; People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.) Defendant has shown no prejudice here because there appears no probability of a different outcome had objections been made. (See Strickland, supra, at p. 694.)
A sentencing court may consider any circumstance in aggravation to impose consecutive terms, with some exceptions. (Cal. Rules of Court, rule 4.425(b).) One exception prohibits using the same fact to both impose the upper term and to run terms consecutively. (Ibid.) We agree with respondent's observation that defendant is "simply wrong" in his premise that the trial court used the same facts to impose the upper term on count 1 and to run the sentences on counts 3 and 4 consecutively.
In sentencing defendant to the upper term on count 1, the trial court cited escalating violence in defendant's criminal history, and his extreme threat to the safety of his brother and mother, an extremely frail woman, as shown by his lack of impulse control, his becoming nasty, agitated and verbally violent when things do not go his way, and his very disruptive behavior during the case. The trial court ordered the terms imposed as to counts 3 and 4 to run consecutively because there were two separate victims, and although they were not injured, each officer was affected by the defendant's behavior in resisting arrest. Defendant's separate acts of violence against the two officers justified the consecutive sentences. (See Cal. Rules of Court, rule 4.425(a)(2).)
We also reject defendant's contention that the court used an element of the crime of criminal threats to impose the upper term on count 1 when it cited the extreme threat to defendant's brother and mother. The trial court may use any "factor reasonably related to the sentencing decision" to impose the upper term, but may not use an element of the crime. (Cal. Rules of Court, rule 4.420(b), (d).) The court did not use an element of criminal threats to impose the upper term on count 1. A criminal threat is a statement which conveys an unequivocal, unconditional, immediate, and specific threat to the safety of the victim or his family. (§ 422.) Thus making a threat is an element of the crime; nowhere does the statute prohibit being a threat due to violent behavior and lack of impulse control.
Equally without merit is defendant's contention that the trial court erred in finding that his criminal history showed an escalation in violence when (in defendant's opinion) it showed a de-escalation in violence because his current crimes are not as violent as manslaughter. The trial court considered defendant's entire criminal history, from a misdemeanor driving while intoxicated in 1988, to carrying a loaded firearm and manslaughter, to the present threat to kill yet another brother. Defendant cites no authority for his suggestion that the trial court was limited to comparing this crime only to his last crime, rather than his entire criminal history.
A single factor in aggravation is sufficient to justify the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728-729.) As we have found one proper factor, defendant's threat to the safety of his mother and brother, and the trial court found no circumstances in mitigation, no prejudice appears. (Id. at p. 729.) We conclude that neither defendant's sentencing contentions nor his claim of ineffective assistance of counsel has merit.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
________________________________, J.
CHAVEZ
We concur:
________________________________, P. J.
BOREN
________________________________, J.
ASHMANN-GERST