Opinion
A149320
07-26-2018
THE PEOPLE, Plaintiff and Respondent, v. RICKY PAUL SMITH, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 5-160078-2)
Ricky Paul Smith appeals from a judgment following his conviction by a jury for being a prohibited person in possession of ammunition. (Pen. Code, § 30305, subd. (a)(1).) Smith contends the trial court erred by failing to hold a pretrial competency hearing after expressing doubt about Smith's mental competency. We reject this contention and affirm the judgment.
Subsequent statutory references are to the Penal Code unless otherwise stated.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The 2015 Offense
On December 17, 2015, at around 1:00 a.m., a San Pablo police officer was on patrol when he noticed Smith and another man loitering outside a commercial building. There were several bags and electronic devices near Smith, and it appeared that he had plugged some devices into outlets on the building. As the officer parked and exited his patrol car, he saw Smith walk or run toward another man who was sitting nearby and pass something to him. The officer detained both men and found a 12-gauge shotgun round in Smith's pocket. The item Smith had passed to the other man was a flare gun loaded with a 12-gauge cartridge. Additional 12-gauge rounds were recovered from other items in Smith's possession.
B. Trial Court Proceedings
In January 2016, Smith was charged with one count of being a prohibited person in possession of ammunition (§ 3035, subd. (a)(1)), three probation violations (§ 1203.3), and several enhancements, including a prior strike conviction (§ 1170.12, subd. (b) & (c)). Following an unsuccessful motion to suppress evidence and a preliminary hearing, Smith entered a plea of not guilty. A hearing to set a trial date was scheduled for March 25.
Subsequent references to dates in this background summary refer to the 2016 calendar year.
1. Smith's Motion to Represent Himself
The March 25 hearing was held before the Honorable Garrett Grant. Smith's appointed counsel informed the court that Smith wanted to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta). Smith confirmed this fact, explaining that he wanted to "go pro per" for a few months while he sorted out a financial matter in a probate case he was involved in and found private representation through "Legal Shield." The court suggested Smith retain his public defender until he found a private attorney, but Smith said he did not want to do that. Smith reported that the deputies at the jail were "playing games" with him by preventing him from getting envelopes and paper so he could contact Legal Shield, and he thought he would be in a better position if he represented himself. The court gave Smith a waiver of right to counsel form to complete, conferred privately with counsel, and then passed the matter until later in the hearing.
When Smith's case was re-called, he told the court that he had money coming to him in a probate case, he was planning to enroll in a legal course, and he had represented himself in the past. The court received Smith's waiver of right form and began to review it with him. Smith interjected that he did not understand why he could not have a continuance, stating that his public defender had informed him that he "had to take a deal or start trial today." Defense counsel, Ms. Simon, denied making that statement. She explained that there was a pending plea offer that the defense was expected to address, but Smith had advised her that he "was going to possibly hire a private lawyer." The court asked Smith if he wanted to "entertain" the plea offer and Smith stated he did not, so the court conducted a line by line review of the waiver of counsel form to ensure that Smith understood the rights he was waiving. During this query, Smith asked some questions, which led to further discussion, and he consulted privately with Ms. Simon more than once.
When asked if he understood his right to subpoena witnesses and records, Smith responded that the deputies were preventing him from contacting his bank so he could get money for bail. Smith went on to explain that he believed that going pro. per. would make it easier for him to communicate directly with his bank and Legal Shield so that he could retain a private attorney because currently the "deputies [were] playing games" with him. The court responded, "You can't play games with me, okay? I got to make sure that you understand your right to represent yourself at this point." After consulting with Ms. Simon, Smith stated that he understood his right to subpoena witnesses and records.
Smith went on to confirm that he understood other rights that he had waived, but at one point interjected that when he "went pro per" in a prior case, he was denied a continuance to prepare for trial and he did not understand why. The court responded that a continuance was a different matter, and the only issue before the court was whether Smith had the mental competency to represent himself. Smith responded: "Yes, I do, sir. [¶] The last time I went pro per they made me go through two competency exams to represent myself, sir. So I am mentally competent. They made me go through two." After Smith stated that he understood the rights he was waiving, the court granted his request to represent himself, and relieved the public defender.
At the March 25 hearing, Smith was provided with pleadings, discovery, and other material pertinent to his case. He requested a two-month continuance to prepare for trial, but was granted 30 days, with the possibility of an additional continuance if necessary. The court also ordered that Smith be provided with the envelopes that he had complained were not being provided at the jail.
C. Reappointment of the Public Defender
On April 1, the Honorable Patricia Scanlon held a hearing on Smith's Faretta request. The record does not disclose who requested this hearing, but it began with an inquiry from the court about what happened at the March 25 hearing, which led to the following exchange:
"THE DEFENDANT: I was granted pro per, but I haven't been given anything by the jail as far as envelopes or anything to hire a paralegal, an attorney, or legal runner, any material at all.
"THE COURT: All right. Here's my problem. Your Faretta request states your employment experience—something with the Central Intelligence Agency recruitment center.
"THE DEFENDANT: Yeah, I sent them a letter.
"THE COURT: Yeah. It makes me be concerned about your ability to represent yourself if you believe employment experience means applying with the Central Intelligence Center.
"THE DEFENDANT: Well, I didn't have anything to put on the paperwork at the time, your Honor. It was—it is April Fool's day, but—"
The court questioned if it was the court that had been made the fool. Smith responded that this was not a joke and that he really had sent a letter to the Central Intelligence Agency. Then the court asked Smith if he knew the charges against him. Smith responded that he was charged with possession of ammunition and possession of methamphetamine. After checking the file and consulting with the prosecutor, the court advised Smith he was only being charged with possession of ammunition. Smith answered a few additional questions, but then began to complain that the public defender was not helping him with a probate case that he was trying to get taken care of while he was in custody. Smith told the court he understood that public defenders do not handle probate cases, but complained that if Ms. Simon had given him the help he asked for, he would have had the money he needed to hire a private attorney.
The court stated that it was not going to grant a Faretta request if what Smith was really trying to do was hire a private lawyer, because the two matters were very different, and, the court told Smith, "I have some serious doubts about whether you are capable of representing yourself if you don't even know what you're charged with." Smith responded that he knew he was being charged with possession of ammunition, but he was also given paperwork about a drug charge. The court pointed out that Smith had already participated in a preliminary hearing and motion to suppress hearing, so the charges should have been clear to him. Then, the following exchange occurred:
"THE COURT: . . . [¶] I'm gonna re-appoint the Public Defender. I am withdrawing the Faretta wavier at this time as I do not have confidence that
"THE DEFENDANT: Objection, your Honor.
"THE COURT: I understand. I'm not sure you're competent to have criminal proceedings go on
"THE DEFENDANT: Ma'am
"THE COURT: —let alone find that you can represent yourself.
"THE DEFENDANT: Well, can we have a competency hearing?
"THE COURT: Not until you have an attorney."
After this exchange, the court made the following ruling: "In the matter of People vs Ricky Paul Smith, I do not find at this time—I might find in the future—but based on his waiver and what he's had to say I don't find that he's capable of representing himself. I am gonna re-appoint the Public Defender's Office."
The court continued the hearing until April 8, so that Smith could appear with Ms. Simon. The court advised Smith that he could make another Faretta request at that time, when he had the benefit of counsel and the court could make a "reasoned decision." The court also advised Smith to bring any paperwork that would show that he had the funds to retain a private attorney.
It appears that the court held two subsequent hearings to resolve issues pertaining to Smith's representation, but neither proceeding was transcribed. According to the court's minute order, Ms. Simon appeared with Smith on April 8 and a trial date was set for early May. On April 14, however, Smith appeared with a different public defender and the court continued the trial date so his new counsel could become familiar with his case. Notably, at the April 14 hearing, Smith withdrew his Faretta motion.
D. Smith's Trial
Smith's jury trial began on July 25. The trial judge was the Honorable Barry Baskin. On July 27, the jury returned a verdict finding Smith guilty of the charged offense. The following day, the jury found that the charged enhancements were all true. On August 19, Smith was sentenced to an aggregate prison term of two years eight months.
II. DISCUSSION
Smith contends the trial court committed reversible error by failing to hold a hearing to determine whether Smith was competent to stand trial.
" ' "Both federal due process and state law require a trial judge to suspend trial proceedings and conduct a competency hearing whenever the court is presented with substantial evidence of incompetence, that is, evidence that raises a reasonable or bona fide doubt concerning the defendant's competence to stand trial. [Citations.] . . . Evidence of incompetence may emanate from several sources, including the defendant's demeanor, irrational behavior, and prior mental evaluations. [Citations.]" [Citation.] But to be entitled to a competency hearing, "a defendant must exhibit more than bizarre . . . behavior, strange words, or a preexisting psychiatric condition that has little bearing on the question of whether the defendant can assist his defense counsel. [Citations.]" [Citation.]' [Citation.]" (People v. Sattiewhite (2014) 59 Cal.4th 446, 464-465.)
"Counsel's assertion of a belief in a client's incompetence is entitled to some weight. But unless the court itself has declared a doubt as to the defendant's competence, and has asked for counsel's opinion on the subject, counsel's assertion that his or her client is or may be incompetent does not, in the absence of substantial evidence to that effect, require the court to hold a competency hearing. [Citations.] [¶] By the same token, and absent a showing of 'incompetence' that is 'substantial' as a matter of law, the trial judge's decision not to order a competency hearing is entitled to great deference, because the trial court is in the best position to observe the defendant during trial. [Citation.] ' "An appellate court is in no position to appraise a defendant's conduct in the trial court as indicating insanity, a calculated attempt to feign insanity and delay the proceedings, or sheer temper." [Citations.]' [Citation.]" (People v. Mai (2013) 57 Cal.4th 986, 1033.)
Applying these rules here, we conclude that the trial court did not abuse its discretion by failing to hold a competency hearing in this case. As best we can determine, neither of Smith's appointed public defenders requested a hearing or expressed any doubt about his competency. Nor does Smith contend that something occurred during his trial, which raised a concern about his competency. Instead, Smith focuses exclusively on the Faretta hearings. He posits that the court was required to hold a competency hearing because (1) Judge Scanlon made an express statement on the record that the court doubted Smith was competent to stand trial, and/or (2) the transcripts of the Faretta hearings constitute substantial evidence of his mental incompetence. We will separately consider these two claims.
A proper characterization of what Judge Scanlon said must account for the context in which the comments were made. The legal question before the court at that hearing was Smith's competency to represent himself, not his competency to stand trial. California courts have discretion to deny requests for self-representation by " 'gray-area defendants,' " individuals who are competent to stand trial but whose mental health issues render them incompetent to conduct trial proceedings by themselves. (People v. Johnson (2012) 53 Cal.4th 519, 527; see also People v. Gardner (2014) 231 Cal.App.4th 945, 956.) Ultimately though, Smith withdrew his Faretta motion, thus mooting the issue whether he was competent to represent himself. Indeed, Smith does not challenge any aspect of the trial court's Faretta rulings on appeal.
Instead, Smith now argues for the first time on appeal that he was entitled to a competency hearing before proceeding to trial because Judge Scanlon made an explicit statement that she was uncertain if Smith was competent. However, as we have just explained, when viewed in context, the most reasonable interpretation of the trial court's remarks at the April 1 hearing was that the court had a doubt about Smith's ability to represent himself. The court's aside that "I'm not sure you're component to have criminal proceedings go on . . ." was, in our view, hyperbole, intended to underscore the formal ruling that the court was actually making, which was that Smith was not qualified to represent himself. Furthermore, to the extent the court's remark spoke to the greater issue of Smith's competency to stand trial, that brief comment was at most an expression of a preliminary concern. Absent substantial evidence the defendant is mentally incompetent to stand trial, "[a] trial court's expression of preliminary concerns about competency does not require the commencement of competency proceedings. [Citation.]" (People v. Price (1991) 1 Cal.4th 324, 396-397.)
Which brings us to Smith's second argument, that the record of the Faretta hearings constitutes substantial evidence that he was incompetent to stand trial. " 'Evidence is "substantial" if it raises a reasonable doubt about the defendant's competence to stand trial.' [Citation.]" (People v. Lawley (2002) 27 Cal.4th 102, 131.) A defendant is not mentally competent to stand trial "if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner." (§ 1367, subd. (a).)
In this case, the record shows that Smith pursued two goals during the Faretta hearings. He sought to gain a tactical advantage with respect to games he was playing with the deputies at jail. And, he sought a continuance of the trial, which was looming. The idea that he could obtain these goals by exercising his Faretta right may have been misguided, but it was not evidence that he misunderstood the nature of the proceedings against him or that he lacked the ability to assist in his own defense.
On appeal, Smith characterizes his behavior at the Faretta hearings as "blatantly bizarre," but each of his examples takes liberty with the record. First, Smith contends he evinced uncertainty about the charges against him by stating that he was charged with possession of methamphetamine in addition to possession of ammunition. The record shows that the complaint against Smith alleged a single count for possession of ammunition. But that charge was supported by allegations that Smith was prohibited from possessing ammunition because of a series of prior convictions, the first of which was a 2002 conviction for drug possession. The complaint also charged Smith with a probation violation in a 2014 case in which he was convicted of drug possession. Finally, Smith's drug convictions were used to support the sentence enhancement allegations. As our factual summary reflects, the complaint was one of the documents provided to Smith at the March 25 hearing. Thus, when he subsequently told Judge Scanlon that he was charged with a drug offense, his statement was technically inaccurate, but it was not bizarre or irrational.
Second, Smith opines that he displayed mental incompetence by equating an application for employment with the Central Intelligence Agency with "employment experience." The record shows that Smith completed a section of a waiver of right to counsel form that inquired about "Employment Experience" by writing that he was applying to the Central Intelligence Agency Recruitment Center. Smith also provided an address for the agency's office in Washington, D.C. These statements are not evidence that Smith misunderstood the difference between an application and an actual job. At the April 1 hearing, Smith explained that he did not want to leave this section of the form blank, and he did send a letter to the agency, so he was not lying. Furthermore, although Smith's reference to the fact that it was April Fool's day might be evidence he was making a mockery of the form, it was not evidence that he lacked the ability to comprehend the nature of the charges against him or to assist in defending those charges.
Smith next contends that he revealed his incompetence by telling the court that he applied to Columbia Law School and Legal Shield "for legal training." Actually, Smith discussed those organizations with Judge Grant at the March 25 hearing, and he never said he applied to them for legal training. He told the court that (1) he sent a letter to Columbia Law School when he represented himself in a prior case, (2) he was currently attempting to contact Legal Shield so that he could obtain private counsel, and (3) he had applied to some unspecified paralegal program. These statements may or may not have been true, but they were not "blatantly bizarre," as Smith now contends.
The waiver of right to counsel form inquired about the defendant's "Legal Education (if any)." Smith stated that he was going to start a paralegal course at "Blackstone Career Institute," and provided a Web site and physical address for the company. Smith did not make any reference to Columbia Law School or Legal Shield on the form.
Finally, Smith argues that he was mentally incompetent because he "represented that he had a probate case going which involved a lot of money, as if this would be of some help in his criminal trial." However, the record shows that Smith never suggested the probate case was relevant to the criminal charges. Rather, he told the court that he wanted to find a way to use funds owed to him in the probate matter to hire a private attorney. There was nothing irrational about that plan.
In the end, "the record simply does not show that [Smith] lacked an understanding of the nature of the proceedings or the ability to assist in his defense." (See People v. Koontz (2002) 27 Cal.4th 1041, 1064.) Therefore, even if we could be convinced that some of Smith's conduct at the Faretta hearings was evidence of a mental illness, that would not alter our conclusion that the trial court was not required to hold a competency hearing in this case. (Ibid.)
III. DISPOSITION
The judgment is affirmed.
/s/_________
SMITH, J. We concur: /s/_________
STREETER, Acting P. J. /s/_________
REARDON, J.
Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------