Opinion
D047252
12-5-2006
THE PEOPLE, Plaintiff and Respondent, v. ROBERT A. SALZMAN, Defendant and Appellant.
A jury convicted Robert Salzman in a second trial of one count of possession of a controlled substance for sale (Health & Saf. Code, § 11351) and, in a bifurcated proceeding, found true the allegation that he had a previous drug conviction within the meaning of Health and Safety Code section 11370.2, subdivision (a). On appeal, Salzman argues the trial court erroneously found he was competent to waive his right to counsel when it granted his Faretta motion, and further erred when it did not sua sponte order a new competency hearing during trial.
Faretta v. California (1975) 422 U.S. 806.
I
FACTS
A. Prosecution Evidence
On March 2, 2005, officers found Salzman lying unconscious on a sidewalk. Salzman smelled of alcohol and was unresponsive to initial efforts to rouse him. After approximately 10 minutes, officers were able to awaken him and they arrested him for being under the influence of alcohol.
Officers searched Salzman and found eight fingers from medical latex gloves containing white pills. Salzman said the pills were Percocet and stated, "I dont take those. They make me feel freaky." Salzman was transported to the police department where officers identified the pills as Oxycodone, the generic name for Percocet, a controlled substance.
At the police department, approximately one hour after his arrest, Salzman stated, "I sell those pills all the time." The pills appeared to have been possessed for sale because they had been removed from the original single container and were separately packaged in smaller lots.
B. Defense Evidence
Salzman testified he had been released from a nursing home on February 28, 2005, after recuperating from an injury. He was busy performing a variety of errands on March 2, 2005, and therefore did not have time to become intoxicated. He denied possessing the fingers filled with Percocet and denied telling the officers that Percocet made him feel freaky.
II
ANALYSIS
A. Procedural Background
Shortly before Salzmans first trial, the court ordered a psychiatric evaluation pursuant to Penal Code section 1368 (section 1368) to determine whether he had the ability to understand the nature of the proceedings and assist counsel in defense of the charges. In April 2005, the psychiatrist who examined Salzman concluded, and the trial court found, that Salzman was competent to stand trial. Salzman subsequently moved to represent himself under Faretta, and the court granted his motion.
At his first trial in July 2005 the jury was unable to reach a verdict and the court declared a mistrial. Salzman then moved for dismissal of the charges, but the court denied the motion. Approximately six weeks later, after the trial judge who presided over the first trial was replaced following Salzmans successful challenge pursuant to Code of Civil Procedure section 170.6, trial commenced in the retrial of the charges. Salzman continued to represent himself. The jury in the second trial, which is the subject of this appeal, convicted Salzman.
B. The Trial Court Properly Allowed Salzman to Represent Himself
Salzman asserts his waiver of counsel was invalid because subsequent events showed he was delusional. Accordingly, Salzman asserts his waiver of counsel and election to represent himself was not a knowing and intelligent waiver of counsel and requires reversal per se.
Legal Standards
A defendant has a federal constitutional right to self-representation in a criminal proceeding. (Faretta v. California, supra, at 422 U.S. at p. 819.) A waiver of the right to counsel and election of self-representation must be intelligent and voluntary. (Id. at pp. 819, 835.) Faretta applies to California criminal proceedings (People v. Windham (1977) 19 Cal.3d 121, 128 [a trial court must grant a defendants Faretta motion "upon ascertaining that he [or she] has voluntarily and intelligently elected to do so, irrespective of how unwise such a choice might appear to be"]) and generally, "[a] trial court must grant a defendants request for self-representation if three conditions are met. First, the defendant must be mentally competent, and must make his [or her] request knowingly and intelligently, having been apprised of the dangers of self-representation. [Citations.] Second, [the defendant] must make his [or her] request unequivocally. [Citations.] Third, [the defendant] must make [the] request within a reasonable time before trial. [Citations.]" (People v. Welch (1999) 20 Cal.4th 701, 729, italics added.) Alternatively stated, "[t]he requirements for a valid waiver of the right to counsel are (1) a determination that the accused is competent to waive the right, i.e., he or she had the mental capacity to understand the nature and object of the proceedings against him or her; and (2) a finding that the waiver is knowing and voluntary, i.e., the accused understands the significance and consequences of the decision and makes it without coercion. [Citations.]" (People v. Koontz (2002) 27 Cal.4th 1041, 1069-1070.)
When ruling on the Faretta motion, "[t]he relevant inquiry is narrow. The trial court is not concerned with the wisdom of defendants decision to represent [him- or herself], or with how well he [or she] can do so. The sole relevant question is whether the defendant has the mental capacity to knowingly waive counsel while realizing the probable risks and consequences of self-representation. [Citations.] The court has discretion to determine the defendants competence to waive counsel; its ruling will not be disturbed on appeal absent an abuse of that discretion." (People v. Clark (1992) 3 Cal.4th 41, 107.) On appeal, we will not reverse if the evidence available to the trial court at the time of the Faretta hearing provided substantial evidence to support the conclusion that the defendant had the mental capacity to understand the nature and object of the proceedings against him or her and knowingly and voluntarily waived counsel with an understanding of the significance and consequences of the decision. (People v. Welch, supra, 20 Cal.4th at p. 739.)
Evaluation
Shortly before the Faretta hearing, the court found, based on a psychiatric evaluation, Salzman was mentally capable of standing trial under section 1368 because he had the mental capacity to understand the nature of the proceedings and to assist counsel in defense of the charges. At the May 12, 2005 Faretta hearing, the court orally advised Salzman of the risks and consequences of self-representation, and of the wisdom of permitting the public defender to continue representing him, and Salzman orally stated he was aware of the risks and consequences but nevertheless wished to represent himself. Moreover, Salzman signed a written waiver to further memorialize his understanding and acceptance of the risks, and the court found Salzman had sufficient mental capacity to knowingly undertake self-representation.
The standard for mental capacity to elect self-representation is the same as the capacity to stand trial required by section 1368 (People v. Blair (2005) 36 Cal.4th 686, 711), and the trial courts prior finding of capacity under section 1368 provided ample support for its finding of capacity to elect self-representation. Moreover, nothing at the Faretta hearing called into question Salzmans mental capacity. Salzman asserts, however, that his subsequent behavior during his second trial suggested he did not have the mental capacity to elect self-representation. The propriety of the courts Faretta motion ruling is based on the facts known to it at the time of the ruling, not on hindsight based on later events (People v. Teron (1979) 23 Cal.3d 103, 114, disapproved on other grounds by People v. Chadd (1981) 28 Cal.3d 739, 750, fn. 7), and the finding Salzman had the capacity to elect self-representation was proper on the facts before the court at the time of the ruling.
C. The Trial Courts Failure Sua Sponte to Order a New Section 1368 Competency Hearing Was Not an Abuse of Discretion
Salzman argues that, because he began exhibiting delusional behavior prior to and during his second trial, the court was obligated sua sponte to suspend the proceedings and order a new section 1368 evaluation.
Legal Standards
"When, at any time prior to judgment, a trial court is presented with substantial evidence of a defendants incompetence to stand trial, due process requires a full competency hearing." (People v. Lawley (2002) 27 Cal.4th 102, 136.) However, a defendant is presumed competent unless proved otherwise by a preponderance of the evidence (§ 1369, subd. (f)), and "a defendant must exhibit more than bizarre, paranoid behavior, strange words, or a preexisting psychiatric condition that has little bearing on the question of whether the defendant can assist his [or her] defense counsel" (People v. Ramos (2004) 34 Cal.4th 494, 508) before the trial court is obligated to order a competency hearing. Moreover, " [w]hen a competency hearing has already been held and defendant has been found competent to stand trial, . . . a trial court need not suspend proceedings to conduct a second competency hearing unless it "is presented with a substantial change of circumstances or with new evidence" casting a serious doubt on the validity of that finding. " (People v. Kelly (1992) 1 Cal.4th 495, 542.) A trial court may rely on its own observations in determining whether the defendants mental state has significantly changed during the course of trial to necessitate a new competency hearing. (People v. Jones (1991) 53 Cal.3d 1115, 1153.)
On appeal, we will not disturb the trial courts action in not holding a new competency hearing if the action is supported by substantial evidence. (People v. Huggins (2006) 38 Cal.4th 175, 220.) Indeed, when the defendant asserts on appeal the trial court should have ordered a second competency hearing on its own motion (People v. Koontz, supra, 27 Cal.4th at pp. 1063-1064 [court may sua sponte order competency hearing where trial court entertains substantial doubt regarding competence]), we will not reverse unless persuasive and virtually uncontradicted evidence (People v. Marshall (1997) 15 Cal.4th 1, 31) shows circumstances had substantially changed and created serious doubts over the validity of the prior finding of competence.
Analysis
Salzman asserts that aspects of his actions and comments during pretrial motions, and certain comments during the evidentiary presentation and closing arguments, showed that between April 2005 (his competency hearing) and August 2005 he had so lost his grip on reality that he was unable to understand and participate rationally in the legal proceedings. (People v. Deere (1985) 41 Cal.3d 353, 358, disapproved on other grounds by People v. Bloom (1989) 48 Cal.3d 1194, 1228, fn. 9.)
The record is replete with activity by Salzman demonstrating he understood the nature of the legal proceedings and rationally participated in conducting his defense. Less than two months earlier, Salzman had been so successful in representing himself that the first trial resulted in the jury being unable to reach a verdict, with four jurors favoring acquittal. During the next six weeks, Salzman filed numerous motions and requests for subpoenas, some of which were granted and others denied. When Salzman opposed the prosecutors motion in limine to exclude any reference to the first trial, Salzman argued he should be allowed to reference the testimony of the officers because their testimony "in all of these hearings all differ," and the court acknowledged Salzmans acumen because he had "[h]it it right on the head and most attorneys wouldnt."
When the court rejected Salzmans efforts to bring in extraneous evidence of his mistreatment by numerous third parties, the court noted that the evidence would (if true) support a major civil lawsuit and it "seemed to me you are bright enough and capable enough based upon the motions that you filed [in this action] to bring that [civil] lawsuit." Even the prosecutor noted, during the course of the trial, that Salzman was "a quick study, . . . no doubt about it."
During trial, Salzman continued to manifest an understanding of the proceedings and the capacity rationally to participate in his defense. He objected to certain jury instructions that a rational layperson could have perceived as harmful and incorrect, and proposed jury instructions that reflected a rational (albeit legally flawed) effort to mount a cognizable defense. Salzman also showed himself to be a rational participant in the evidentiary presentations. Salzman informed the judge in pretrial proceedings that he wanted to subpoena witness Houchin as a "key witness," and then attacked the credibility of Houchins testimony that he overheard Salzman state, "I sell those pills all the time" by eliciting Houchins testimony that Salzman was intoxicated, was "talking incoherent," and that Houchin had no memory of any other statements Salzman made during the evening. Salzman also pointed out the arresting officers trial testimony of the quantity of pills was inconsistent with the officers written report and testimony at Salzmans preliminary hearing. Salzman also cross-examined the criminalist to raise doubts as to the chain of custody of the pills, and sought to undermine the prosecutions expert opinion the pills were possessed for sale by eliciting the experts admission the pills have medicinal applications. He also presented his own testimony that supported his rational (albeit legally flawed) theory of defense that his actions were taken with an innocent state of mind and in good faith. Salzmans closing argument attempted to persuade the jury that he had been hamstrung in his evidentiary presentation, despite constitutional guarantees to the contrary, and implicitly appealed to the jurys patriotic instincts to sway their deliberations. Finally, he continued to display a grasp on reality after the verdict when he asked to poll the jury, gave oral notice of appeal, and sought to be released on bond pending appeal.
For example, Salzman sought instructions on whether he committed the offense with premeditation and whether temporary insanity was a defense. The court noted that specific intent (but not premeditation) was an element of the offense, and that temporary insanity was not a defense, but nevertheless complimented Salzman that he "did an excellent job."
Salzmans conduct during his second trial, viewed as a whole, confirms rather than undermines the earlier finding that he was competent to participate in the proceedings. We conclude Salzman has not shown there was persuasive and virtually uncontradicted evidence of a substantial change in circumstances casting doubt on the validity of the prior finding of competence. Although Salzman quotes snippets from the record to support his assertion that he had lost contact with reality, the cited comments considered in context did not provide uncontradicted evidence of a substantial change in circumstances casting doubt on his rationality.
For example, Salzmans stated belief that he couldnt be properly represented by the Public Defenders office, made in connection with his request to represent himself, was apparently based on his unhappy prior experiences with appointed counsel rather than a delusional paranoia. His unsuccessful motion for appointment of experts on religion and class prejudices, apparently seeking to support his claim that he had been targeted for persecution based on his Jewish heritage, was apparently based on Salzmans belief that duress and necessity were viable defenses and that he had been subjected to such duress during his life. This theory, although legally untenable, is equally explicable as an effort to raise a defense based on a misunderstanding of legal terms of art by a layman who is untutored in the legal nuances of concepts of duress and necessity. His unsuccessful motion for appointment of experts on nursing home abuse and medical malpractice, although legally irrelevant to the charged offenses, was apparently part of his effort to explain the suffering he underwent in the months leading to the arrest. Although a lawyer would understand the irrelevance of the picture Salzman wished to paint for the jury, a layman could rationally believe his suffering was a relevant consideration for the jury when assessing his state of mind.
We acknowledge that Salzmans comments—he had been harassed by Father Joe Carroll (a high profile operator of a local homeless shelter) because Salzman had complained to government agencies about Father Carroll abusing persons housed at his homeless shelter—provide some evidence Salzman suffered a persecution complex. However, apart from that single passage, every other remark cited on appeal as showing Salzman was delusional is equally explicable either as hyperbole or as the comments of a layperson confused about and frustrated by the limits imposed by legal principles.
For example, when Salzman argued at trial that he should be permitted to show the physical suffering he had undergone in the months leading to his arrest, he used the term "tortured" when describing his experience with the nursing home rehabilitation process. Many advocates employ hyperbole without being accused of being mentally incompetent.
In another passage cited by Salzman on appeal, he asked the trial court whether he could tell the jury of his belief in God. The trial court warned Salzman it had excluded his prior drug conviction from the prosecutions case-in-chief or to impeach Salzman for general truth or veracity, but that if Salzman introduced his belief in God as showing Salzmans good character, the prosecutor would be entitled to impeach him with the theretofore excluded prior conviction. Salzman, complaining about the ruling, expressed disbelief that "he wants to bring—because I believe in God . . . and I think God is working in my life that [the prosecutor] can bring up a 20 year old drug case." However, it appears Salzman immediately mused he might be willing to risk having the information come out because "I think the dead should talk. When you bring that up the dead will talk. They will speak . . . [¶] . . . [¶] . . . [b]ecause . . . Im going to tell you where the information is at." It appears that the "dead" to whom Salzman may have been referring was his prior conviction, and he might take this opportunity to relitigate the old conviction.
For example, the trial court reminded Salzman (during his testimony) it had ruled against admission of his description of his travails at the nursing home. Salzman complained "I cannot use this. I cant use any of that evidence. . . . [¶] . . . [¶] I cannot use my college form [and] cant describe the situations that I went through in college . . . ." When the court confirmed that Salzman could not introduce that evidence, Salzman told the jury "I cannot do that. I really wish I could, though. I cant tell you the classes I took and the miracle of God." Although Salzman on appeal suggests this latter statement shows he was disconnected from reality, we apprehend that it instead shows Salzman was frustrated that his evidentiary presentation was curtailed by legal rulings and that he fully comprehended that the court ruled against him. Rather than showing Salzman was irrational and delusional, this passage suggests he was frustrated because he understood fully what was transpiring around him.
An appellate court must accord great deference to a trial courts decision not to order a competency hearing because the trial court is uniquely situated to observe the defendants conduct and demeanor and relative ability to understand the nature of the proceedings and rationally conduct a defense. (People v. Danielson (1992) 3 Cal.4th 691, 726-727, disapproved on other grounds by Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) We conclude the trial court, who was aware Salzman had earlier been found competent and was able to observe Salzmans conduct at the second trial as a whole and in context, did not err by not sua sponte ordering a second competency hearing.
DISPOSITION
The judgment is affirmed.
We Concur:
NARES, Acting P. J.
McINTYRE, J.