Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 06CF2978, Richard F. Toohey, Judge.
Dennis L. Cava and Howard C. Cohen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Heather Crawford, Christine Levingston Bergman and Vincent La Pietra, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ARONSON, ACTING P. J.
A jury convicted Bruce Richard Senator of two counts of threatening injury to judges assigned to hear his workers’ compensation claim. (Pen. Code, § 71; all statutory references are to the Penal Code unless noted.) Defendant contends the trial court violated his federal right to due process and effective assistance of counsel by acquiescing to his demand to represent himself. In Indiana v. Edwards (2008) __ U.S. __ [128 S.Ct. 2379] (Edwards), the Supreme Court recently concluded a trial court may constitutionally deny a defendant the right of self-representation, though the defendant is competent to stand trial. The court held: “[T]he Constitution permits States to insist upon representation by counsel for those competent enough to stand trial[,] but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.” (Id. at p. 2388.) Left unresolved by Edwards, however, is whether the state must deny the right of self-representation to a so-called “gray-area defendant,” i.e., a person competent to stand trial but unable “to carry out the basic tasks needed to present his own defense without the help of counsel.” (Id. at pp. 2385-2386.) Also unresolved is whether the trial court must sua sponte ascertain whether a particular defendant is a gray-area defendant.
Even assuming arguendo the Sixth and Fourteenth Amendments require a trial court to ascertain the defendant’s mental competence relevant to self-representation and deny a gray-area defendant the right of self-representation, defendant identifies no evidence in the record to suggest he falls into that category. Appointed counsel expressly disclaims any contention defendant was incompetent to stand trial. While it is clear appointed counsel thinks little of the merits of the defense case defendant presented below, counsel points to nothing in the manner in which defendant conducted his defense — no bizarre comments or outbursts or other indicia of an inability to present his case — that would support reversal. Because defendant fails to demonstrate the trial court erred in honoring defendant’s right to represent himself, we affirm the judgment.
I FACTUAL AND PROCEDURAL BACKGROUND
According to defendant, he suffered a workplace injury to his spine in July 1988. Defendant’s friend, a neurosurgeon, examined him and concluded he likely injured a spinal disc, which an MRI confirmed. Defendant filed a workers’ compensation claim with his employer but, after years of delay, defendant became convinced the process was flawed and corrupt. When insurance company doctors concluded his chronic back pain had no connection to his workplace accident, defendant requested an independent medical examiner, who was finally appointed in 1994. According to defendant, the medical examiner confirmed defendant was disabled and that his injury stemmed at least in part from the 1988 incident, though he also suffered injury in an intervening car accident. Defendant’s frustration mounted when the administrative law judge (ALJ) assigned to his claim took no action on his request for a treating physician. The matter continued to languish, eventually wending its way before another ALJ on the Workers’ Compensation Appeals Board, who, according to defendant, “verified [his] disabilities under the Americans with Disabilities Act.”
In the meantime, defendant had, in his words, “‘issues arising in the courts.’” He was sentenced to prison in 1998 after making terrorist threats (§ 422) against one of the ALJ’s assigned to his claim. According to defendant, his bunkmate in prison was a former Orange County deputy district attorney incarcerated for drug offenses. Defendant became convinced he had suffered an unjust conviction based on unlawful ex parte “case trading” the deputy described between prosecutors and defense attorneys. His wrongful conviction had political overtones because, as defendant later explained to the jury in the present case, his defense attorney in the former case informed him, “‘Well, the judge says that she’ll let you go if you’ll stop putting your political writings on the Internet and stop using the computer.’” Defendant also felt persecuted in prison because other inmates received workers’ compensation benefits, but he did not since his claim still had not been resolved.
Following his release from prison, defendant’s workers’ compensation claim eventually came before ALJ Norman Delaterre in 2005. Delaterre appointed an independent medical examiner, Dr. Mark Brown, to evaluate the extent of defendant’s injury. Defendant disagreed with the examiner’s findings, contending he was “far more disabled” than Dr. Brown concluded. In April 2006, the FBI notified Delaterre it had intercepted an e-mail from defendant that contained threatening language. The e-mail alleged Dr. Brown was not independent but rather a stooge for the workers’ compensation insurance carrier and that, “furthermore, ALJ Delaterre had contact with Dr. Brown directing the outcome.” The e-mail concluded ominously, “‘[O]f course, Dr. Brown will answer himself for cooperating in this effort, a measured response to punish the government and all [“]actors[”] for these most recent actions.’”
Delaterre notified his supervisor, ALJ William Whitely, of the threat. Whitely contacted the California Highway Patrol and the Orange County Sheriff’s Office about the matter but, in an attempt to have defendant’s underlying claim resolved, agreed to hear the claim himself. After defendant failed to appear in April 2006, Whitely rescheduled the mandatory settlement conference for June 20, 2006. Defendant seemed “quite a gentleman” at first, putting Whitely at ease. But defendant’s demeanor changed after Whitely informed him trial was the next step in his case. Defendant advised Whitely he had spent several years in prison, he belonged to an organization “that could conduct military style tribunals,” and that his prison “acquaintances... could help him carry out the sentence of that tribunal.” Whitely terminated the hearing.
In July 2006, defendant filed an affidavit in his workers’ compensation case stating, “‘To be very clear, I have acquiesced to the use of all necessary force, not only against the Workers’ Compensation Appeals Board in general, but specifically I acquiesce[] to the use of violent force to PUNISH’... ‘those who accepted authority to uphold the law but in turn committed atrocity after atrocity over an 18-year period, committed terrorist acts by, of, and for the State of California.’” Defendant declared it was his right and duty to “‘throw off’” an oppressive government, and “‘to punish the current government and all persons in the employ of said government.’” Defendant had signed the affidavit on July 4th. Whitely notified the police, who arrested defendant.
Defendant waived appointment of counsel and instead represented himself at the preliminary hearing, despite the trial court’s admonishment concerning the risks. After the hearing, defendant requested appointment of cocounsel to assist him at trial. When the trial court denied the request, defendant withdrew his request to represent himself, and the trial court appointed the public defender as his attorney. Six months before trial, however, defendant again sought to waive counsel and represent himself because he disagreed with his appointed defender about trial strategy. The trial court advised defendant it was a “bad decision” to represent himself but relieved the public defender after confirming defendant understood the charges and potential punishment. A month later, defendant renewed his request for cocounsel, which the trial court denied. The trial court again discussed with defendant the disadvantages of self-representation, but defendant reiterated he wanted to proceed as his own attorney.
At trial, defendant gave a lengthy opening statement, testified on his own behalf, cross-examined Delaterre, Whitely, and several other witnesses, and made an impassioned closing argument. He explained to the jury his theory that the government’s handling of his workers’ compensation claim amounted to torture and terrorism, given the extreme back pain he suffered and his mental anguish over the process. He attempted to persuade the jury he did not represent a credible threat to Delaterre and Whitely. Rather, the charges amounted to government retaliation because he voiced a complaint against an unjust system. Attempting to bolster his credibility as political activist, he detailed his involvement in political activities contesting government overreaching, including seeking an end to the Contra war in Nicaragua in the 1980’s.
He also invoked the founding era repeatedly. Defendant’s theme throughout the case was, he reiterated to the trial court: “As I stated to the jury, I would be the same kind of guy back in the early 1700[’]s saying, you know, what are we doing hooked up with England. I would be hounded by the English Tories or by the Crown. And as you know, I brought the analogy up with the Star Chamber.” He explained, “So, you have, you have reasons why my case is here today and it’s here today not because... I’m here having threatened someone but because I responded to... the government’s outrageous conduct in committing torture and terrorism. And that’s part of my main defense. That’s part of the defense of not only the entrapment but it goes towards outrageous government conduct and it goes towards legal right and legal justification.” Defendant concluded, “[T]here’s a reason why the government does not like my writings because my writing calls for the People to think about throwing off the government. It’s as simple as that. They don’t like my writing.”
After the jury convicted defendant of two counts of threats to a public employee or officer, the trial court sentenced him to a prison term of six years and four months, and defendant now appeals.
As we have noted in several orders in this case, defendant’s attempts to relieve counsel appointed on appeal are without merit because there is no right of self-representation on appeal. (Martinez v. Court of Appeal of Cal., Fourth Appellate Dist. (2000) 528 U.S. 152.)
II DISCUSSION
In Faretta v. California (1975) 422 U.S. 806 (Faretta), the Supreme Court affirmed the Constitution protects an individual’s right to forego an attorney and represent oneself in criminal proceedings. Specifically, the court held the Sixth and Fourteenth Amendments include a “constitutional right to proceed without counsel when” a criminal defendant “voluntarily and intelligently elects to do so.” (Id. at p. 807, original italics.) In Godinez v. Moran (1993) 509 U.S. 389, the court “reject[ed] the notion that competence to plead guilty or to waive the right to counsel must be measured by a standard that is higher than (or even different from)” the standard for mental competence to stand trial. (Id. at p. 398.) Edwards recently distinguished Godinez in part because “the Godinez defendant sought only to change his plea to guilty, he did not seek to conduct trial proceedings, and his ability to conduct a defense at trial was expressly not at issue.” (Edwards, supra, 128 S.Ct. at p. 2385.) Additionally, the Edwards court observed that “Godinez simply did not consider whether the Constitution requires self-representation by gray-area defendants even in circumstances where the State seeks to disallow it (the question here).” (Ibid.)
In Edwards, the Supreme Court concluded “theConstitution permits judges to take realistic account of the particular defendant’s mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally competent to do so.” (Edwards, supra, 128 S.Ct. at pp. 2387-2388, italics added.) There, based on the defendant’s lengthy psychiatric records, the trial court denied the defendant’s self-representation request, finding “‘he’s competent to stand trial but I’m not going to find he’s competent to defend himself.’” (Id. at pp. 2382-2383.) As noted, Edwards did not hold — and the Supreme Court has not since held — that a trial court must ascertain whether a defendant who seeks to represent himself has sufficient mental capacity to conduct his or her defense without counsel. The Ninth Circuit recently took this step in United States v. Ferguson (9th Cir. Mar. 27, 2009, No. 07-50096) __ F.3d __ [2009 D.A.R. 4653, 2009 WL 792485] (Ferguson).
In Ferguson, the Ninth Circuit remanded the matter for the trial court to determine whether to exercise its discretion under Edwards to deny the defendant his self-representation right. (Ferguson, supra, 2009 D.A.R. at p. 4658.) The reviewing court observed there were “many indications in the record that Edwards might apply,” including “that Defendant’s behavior was decidedly bizarre, as even a cursory review of the transcripts reveals.” (Id. at p. 4657.) Faced with child pornography charges, the defendant “repeatedly demanded that his counsel follow his six made-up ‘duties’ and fired his lawyers when they were unable to meet those ‘duties.’ He repeatedly insisted that he was making only a ‘special appearance,’ asked to settle the case ‘in the private,’ requested the judge to recognize the ‘public policy’ exception in the U[niform] C[ommercial] C[ode] and dismiss the case ‘for value,’ and attempted to file a motion of ‘dishonor’ against his lawyers.” (Ibid.)
The reviewing court also noted, “Defendant’s behavior at trial and sentencing gives us pause, as it did the district court. At trial, Defendant did absolutely nothing — no voir dire questions for the judge to ask, no opening argument, no closing argument, no objections, no cross-examination, no evidence, and no witnesses. At sentencing, he submitted three nonsensical motions, did not object to the P[re] S[entence] R[eport], and did not make any legal arguments.” (Ferguson, supra, 2009 D.A.R. at p. 4657.)
“Perhaps most importantly,” the Ninth Circuit observed, “the record suggests that the district court might have forced counsel upon Defendant, had the court had the benefit of reading Edwards. Even the government’s lawyer was extremely keen to have Defendant represented, because he was concerned that self-representation in this case would be error. Reviewing the record, there was a lot of hand-wringing by the court — both when Defendant was present and when he was not — that Defendant’s self-representation would seriously jeopardize the fairness of the trial. For instance, the court stated at one point before trial that it ‘would be desirable to have him declared incompetent’ and, at another point, also before trial, ‘I think that it is terrible to let him represent himself.’ At the sentencing hearing, the court said that it had ‘never heard of an example of somebody that behaved at trial the way Defendant had,’ in 20 years on the federal bench.” (Ferguson, supra, 2009 D.A.R. at p. 4657.)
In Edwards, the Supreme Court relied in part on an amicus brief submitted by the American Psychiatric Association stating that “‘[d]isorganized thinking, deficits in sustaining attention and concentration, impaired expressive abilities, anxiety, and other common symptoms of severe mental illnesses can impair the defendant’s ability to play the significantly expanded role required for self-representation even if he can play the lesser role of represented defendant.’” (Edwards, supra, 128 S.Ct. at p. 2387.)
Here, defendant points to no evidence in the record that he suffered any of the mental illness deficits identified in Edwards, nor to any bizarre behavior like the defendant in Ferguson exhibited. Defendant does not say whether, as in Edwards, any psychiatric evidence cast doubt on his mental competency. To the contrary, appellate counsel concedes defendant was competent to stand trial, expressly affirming “appellant does not claim he was not competent to stand trial.” Appellate counsel also acknowledges defendant “clearly had a rational and factual understanding of the proceedings.” Unlike in Ferguson, appellate counsel does not suggest the trial court or the prosecutor had any qualms about defendant’s mental competence or his ability to try his case.
Appellate counsel simply views the defense theory defendant advanced below as “irrational.” The trial court and the prosecutor, however, recognized defendant was attempting to appeal to the jury with a necessity defense — he had no choice but to fight back against government oppression to make it stop. A case pending 18 years is reminiscent of Bleak House and would frustrate anyone. As a matter of law, of course, the violence promised in defendant’s threats would be unjustifiable in response to mere court proceedings. (See People v. Humphrey (1996) 13 Cal.4th 1073, 1082-1083 [mortal self-defense requires a threat of imminent great bodily injury or death].) But a defendant’s ignorance of the law is not a reason to deny the right of self-representation. (Faretta, supra, 422 U.S. at p. 836 [the defendant’s “technical legal knowledge” is “not relevant” to right to represent oneself].)
In sum, even assuming Edwards may be extended to require rather than simply permit trial courts to deny a defendant the right of self-representation, we conclude defendant has failed to demonstrate error. Defendant has failed to point to evidence in the record pertinent to the concerns raised in Edwards or demonstrated by the way the Ferguson defendant tried his case. Consequently, there is no basis shown for, as in Ferguson, remand to the trial court to consider whether to retroactively deny defendant’s right of self-representation.
III DISPOSITION
The judgment is affirmed.
WE CONCUR: FYBEL, J., IKOLA, J.