Opinion
E044916
2-24-2009
THE PEOPLE, Plaintiff and Respondent, v. KENNETH SONNEMA, Defendant and Appellant.
Richard L. Schwartzberg, 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, Gil Gonzalez and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in Official Reports
A jury found true a petition to extend the commitment of defendant, who had previously pled not guilty by reason of insanity, to a treatment facility for two years and the court so ordered. Defendant here contends that the trial court erred in denying his motion to represent himself at the trial on the petition. We reject defendants contention and affirm. The facts attendant defendants crime are irrelevant to this issue.
ISSUE AND DISCUSSION
Defendant contends that he had a constitutional right to represent himself at his recommitment trial, identical to the right criminal defendants have. That being the case, an improper denial of the right requires reversal regardless of prejudice. (Faretta v. California (1975) 422 U.S. 806 (Faretta); People v. Joseph (1983) 34 Cal.3d 936, 939.) The People disagree, asserting that defendants right is purely statutory, as is that of mentally disordered offenders and sexually violent predators. (People v. Williams (2003) 110 Cal.App.4th 1577, 1580 [MDO]; People v. Fraser (2006) 138 Cal.App.4th 1430, 1440, 1449-1450 [SVP].) That being the case, the denial is governed by due process principles and is reviewed for abuse of discretion, with reversal being required only if it is reasonably probable that a different outcome would have occurred had the request been granted. (Williams at p. 1580; Fraser at p. 1450.) We need not decide this issue, because assuming, for purposes of this discussion only, that defendants right to self-representation is constitutional, we still affirm the trial courts ruling.
". . . [I]n order to represent oneself at trial, (1) a defendant must be competent to waive his . . . right to counsel . . . —a determination that must be made . . . under the same test that applies to competence to stand trial, that is, the defendant must have a `"sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and . . . "a rational as well as factual understanding of the proceedings against him" . . . and, (2) the waiver of counsel must be knowing and voluntary — that is, the defendant must `actually . . . understand the significance and consequences of the decision, and the decision must be `uncoerced . . . ." (People v. Stewart (2004) 33 Cal.4th 425, 513.) " . . . [C]ourts indulge every reasonable inference against . . . waiver [of the right to representation by counsel]." (People v. Dunkle (2005) 36 Cal.4th 861, 908, disapproved on other grounds in People v. Doolin (2009) 45 Cal. 4th 390, 421, fn. 22.) The record must establish that defendant "`knows what he is doing and his choice is made with eyes open. [Citation.]" (People v. Stanley (2006) 39 Cal.4th 913, 932.) "Even though the trial court denie[s] the request for an improper reason, if the record as a whole establishes defendants request was nonetheless properly denied on other grounds, we would uphold the trial courts ruling." (People v. Dent (2003) 30 Cal.4th 213, 218.)
In his points and authorities below concerning defendants request to represent himself, his attorney stated, " . . . [A]s long as defendant is competent to stand trial, . . . his request for self-representation is a question that is within the courts discretion."
This is, of course, consistent with the Peoples position.
During the hearing on defendants motion to represent himself, defendant told the trial court that he was aware that Penal Code section 1026.5, subdivision (b) meant that he was not guilty by reason of insanity, meaning he was "not in his right mind" when he committed the crime. He was able to recall that he had been arrested, sent to county jail, made the decision to plead not guilty by reason of insanity following a few court appearances and committed to Patton State Hospital (Patton). He acknowledged knowing that he could spend the rest of his life at Patton unless set free "by a trial or by the doctors." He stated his belief that he had recovered his sanity. He said he had represented himself for the first time four years before in an unsuccessful bid to be released. When the trial court asked him if he found it difficult to represent himself at that time, he responded, "There were some things that I think I should have done and things I shouldnt have done. [¶] . . . [¶] It was hard but not too difficult for me." The court asked defendant if the prosecutor asked one of the doctors who would be testifying a question that called for inadmissible evidence, how would defendant know on what grounds to object. Defendant replied, "It was untruthful or something like that?" The court explained that whether something was truthful or not, Evidence Code rules governing hearsay and leading questions might apply, and he asked defendant if he was aware of those. Defendant said he was. Defendant said he would object if any testimony that was hearsay or untruthful was offered. He said his understanding was that hearsay is something that is not true. The trial court then explained to him what it really was and he replied, "I see." The court pointed out that if defendant did not know what hearsay was, he might have a problem making objections. The court pointed out that the prosecutor would not be disinclined to solicit testimony that violated evidentiary rules merely because defendant was representing himself and the trial court could not help defendant make sure that objectionable evidence was not admitted. The court asked defendant if he wanted to put himself in a position where he was unable to make appropriate objections and allow in evidence that might be detrimental to him. Defendant replied, "No, I cross-examine everybody that comes and witnesses against me." The trial court said it realized defendant would cross-examine witnesses, but if defendant allowed in objectionable evidence, then nothing could be done. It asked defendant if he understood what the court meant. Defendant replied, "Well, Ill raise my hand [to make an objection]." The court explained that if defendant did not know the rules of evidence, he would not know on what basis to make an objection. It pointed out that defendants attorney was good and experienced and knew all the rules of evidence. It asked defendant if he wouldnt be better off having his attorney represent him. Defendant replied that at one of his previous trials, his lawyer [but not his current attorney] did not care what happened to him. He added that when he represented himself previously, "the judge saw me through[.]" The court pointed out that while that might have been nice of that judge, there was no requirement that a judge do that. In fact, the court added, a judge needed to treat him like any other attorney and not help him. Defendant replied, "All right, yeah. Okay." Defendant acknowledged that his current attorney had not represented him before. The court asked defendant if he had any reason to believe defense counsel would not fight for him as hard as he could. Defendant said his attorney told him during an appearance the previous week that he had not yet read defendants "chart." Defense counsel explained that he had just received discovery before that appearance, he had been in court on other cases between then and the present time and knew defendants motion to represent himself was pending. He said he wanted to wait until it was determined to spend his time on the matter. Defendant then said that there were no incidents or breaches of the rules on his inpatient record, therefore he could see no reason to go through a trial and "theres nothing to hold me as far as I can see." Defendant said the court could call off the trial and he could be released in about 6 weeks when his present commitment expired. The court pointed out that it could not do that—that the prosecutor could object to the court releasing defendant. Defendant then asked the prosecutor why he wanted a trial. The prosecutor explained that he brought the petition for recommitment based on the information in the medical reports. Defendant asked the prosecutor if he had read the reports and what information in them caused him to file the petition. While the prosecutor acknowledged reading the reports, he refused to answer defendants second question, saying it was inappropriate. Defendant responded that he did not think the prosecutor had read the reports. Defendant said, " . . . Id like three psychiatrists to come to see me, Im not waiving any time, and Im ready to run my own trial. Ive had enough of this bullshit. You know, these people dont even read my medical report and he wants to defend me, and th[e prosecutor] . . . acts like hes read the medical report but hes come up with no reason to hold me for trial." Defendant again asked the prosecutor why the former was being held for this trial. The prosecutor replied again that this was inappropriate. Defendant responded, "You see that, hes probably lying. I dont believe hes read the medical report, and you havent either. So Im taking over the trial. Its got to be that way. Both of these guys are incompetent, [meaning defense counsel and the prosecutor] yeah. [¶] Okay. I want three psychiatrists to come in and see me, and Im not waiving any time." Both counsel asked for the appointment of an independent medical commission, to which the court agreed.
Of course, Penal Code section 1026.5, subdivision (b) deals with the proceedings after one has been found not guilty by reason of insanity and committed to a treatment facility.
Actually, defendant was committed to Metropolitan State Hospital, but was transferred to Patton in 2006 after he attempted to escape the former.
In his declaration attached to the petition, the prosecutor said that he reviewed the evaluations and supporting documents that were attached to the petition.
The court denied defendants request to represent himself, saying, " . . . [T]he right to represent ones self in a Penal Code 1026.5[, subdivision] (b) proceeding is not a constitutional right. It is a right that is created by statute. However there are due process issues that are involved in this, and the Court believes that the standard is that the Court has discretion to decide whether or not to allow somebody to represent himself. [¶] And the Court has taken an opportunity to inquire of [defendant] regarding a variety of things concerning his rights and so on and so forth. In addition to that, the Court has in front of it the petition for an extended commitment. And the extended commitment petition contains a variety of things from the doctors at Patton State Hospital regarding [defendants] diagnosis. [¶] . . . [¶] And among the things that are mentioned here is on 8/18/06, [defendant] climbed onto a truck on the Metro[politan] State [Hospital] grounds and interdisciplinary notes indicate he left his walking group when the facilitator was not watching; found him laying on top of a Pepsi truck parked in front of the program offices. Described this as an impulse, relatively unplanned effort to escape prompted by his frustration at not receiving ConRep recommendation. To his credit he does attend the groups and is cooperative with his medication regime. [¶] They also go on to say, however, he does not fully understand the potential that he has for violence or dangerous situations. [Defendant] states that he does not play with his voices anymore. His voices are generated in his own mind. He attempts to have clear thinking, and he attributes his not hearing voices to his proper medication. [¶] Based upon the recommendations that I have which I can take into account and based upon— [¶] . . . [¶] . . . the dialog that Ive had with [defendant], it is the Courts belief that he is not in a position to represent himself, and the Court will exercise its discretion having made due inquiry of [defendant], and the Faretta Motion is respectfully denied and [defense counsel] will remain as [defendants] counsel."
See footnote 2, ante, page 4.
According to the report submitted by Patton, defendant suffered from paranoid schizophrenia and had "problems related to interaction with the legal system/crime/incarceration[.]" The report further stated, "[Defendant] does not fully understand the potential that he has for violence or dangerous situations. He states that . . . his voices . . . are generated in his own mind. He attempts to have clear thinking. He does attribute his `not hearing voices to the proper medication. [¶] . . . [H]e has had an AWOL attempt. Due to this AWOL attempt the clinical staff are of the opinion that [defendant] is unable to follow the rules and regulations of the hospital and therefore cannot effectively be treated in the community. [¶] It is the clinical opinion of the . . . [t]eam that [defendant] remains dangerous and should remain at the hospital for further treatment."
The crime which triggered this set of commitments and recommitments occurred in 1993 when defendant was at a bus bench and heard the voice of God telling him that another person waiting for the bus was going to steal his Social Security checks, so he took a steel bar, tiptoed 25 feet up to the victim and clubbed him in the head with the steel bar.
After the courts ruling, two of the three psychiatrists appointed to examine defendant concluded that he had not regained his sanity and he continued to represent a substantial danger to others. Defendant refused to be interviewed by the third doctor. A staff psychiatrist at Patton testified that defendant suffered from paranoid schizophrenia, a severe mental disorder, characterized by hallucinations and delusions and substantial changes in his ability to interact with his environment. When defendant decompensates, he becomes very angry, paranoid and assaultive. The doctor added that defendants feeling that he had been held too long in treatment "is likely to drive on aggressive behavior." He said that defendant "has demonstrated [an] inability to control his behavior even on medication." He added, "[Defendants] functioning has been described as between 40 to 60 [on a scale of 1 to 100]. This is significant type problems up to moderate problems. And that helps us to decide how well [he] get[s] along with others . . . [and his] ability to cope with stress." The doctor also stated, "[I]n periods of stress, he may be likely to break rules or act out on urges." A few months before the trial, defendant was observed having a conversation with himself and laughing and it was noted in his chart that he had an ongoing problem with paranoid ideation. Although defendant had agreed to his previous recommitment, he claimed that it was unfair. At trial, after defense counsel rested, defendant, apparently believing the jury would hear nothing else from the defense, including argument, said, "Well, Id like to get up there." After a brief recess, defense counsel informed the court that defendant had decided not to testify after all. Defendant never again asked to represent himself. At one point during his own attorneys argument to the jury, defendant interrupted, contradicting what counsel had just said. He did it again during the prosecutors closing argument. After the jury began deliberating, defendant informed the court that if the jury did not finish deliberations that day, he did not wish to be in court. When the jury returned its verdict, he was absent.
"[O]ur courts . . . review the entire record—including proceedings after the purported invocation of the right of self-representation—and determine de novo whether the defendants invocation was knowing and voluntary." (People v. Marshall (1997) 15 Cal.4th 1, 24; Accord, People v. Dent, supra, 30 Cal.4th at p. 222.) Of course, defendant must also be mentally competent to waive counsel.
In People v. Stanley, supra, 39 Cal.4th at page 933, the California Supreme Court upheld the trial courts denial of a self-representation motion by a criminal defendant, whom the People did not even argue was mentally incompetent to waive counsel, saying, " . . . [T]he lower court reasonably concluded defendant was not making a knowing and intelligent waiver of his right to counsel given his failure to fully comprehend that such a waiver would lead to a full relinquishment of that constitutional right." (Italics added.) The sticking point was defendants belief that if he found himself in trouble, he could petition for appointment of counsel. (Id. at p. 931.)
Defendant asserts that the trial court "engaged in a colloquy with [him] irrelevant" to the determination whether he was mentally competent to waive counsel and whether he knowingly and intelligent did so. We disagree. The trial court had to satisfy itself, first, that defendant had a reasonable degree of rational understanding and a rational and factual understanding of the proceedings against him. (People v. Stewart, supra, 33 Cal.4th at p. 513.) The record shows that defendant had a severe mental illness and had been deemed by his treatment professionals to still be in such need of treatment that he represented a danger to others. There was no evidence that defendant was mentally competent. Defendants assertion that the trial courts reliance on his escape from one treatment facility and his failure to appreciate the continued level of his dangerousness to society was not proper under Faretta is incorrect—they are indicative of defendants delusional thinking. They also suggested that defendant was not capable of understanding the significance and consequences of his decisions—a matter which is relevant to the inquiry whether his waiver of counsel was knowing and voluntary. Defendants colloquy with the trial court also indicated his inability to knowingly waive counsel. Much like the defendant in Stanley stubbornly clinging to the delusion that he could ask for counsel if things started going badly, defendant did not appear to grasp the fact that his lack of familiarity with the rules of evidence could easily work to his detriment. Defendant was unable to rationally articulate his objection to his attorney, and he irrationally accused both him and the prosecutor of being incompetent and the prosecutor of being a liar. He also appeared unable to grasp the fact that it wasnt up to the trial court to simply let him go free because he felt he was cured and had not violated any institutional rules lately. His colloquy with the court demonstrated what the expert later testified, i.e., that defendant becomes angry, paranoid and assaultive when he decompensates, he is unable to control himself when medicated and his inability to cope with stress results in his acting out. His outbursts during trial further supported this. Considering all the foregoing, the trial court acted reasonably in refusing to allow defendant to represent himself.
Thus, defendants assertion that "whether [he] understood the procedure and substance of [the] pending trial . . . w[as not] relevant to a Faretta inquiry" is absolutely incorrect.
DISPOSITION
The judgment is affirmed.
We concur:
RICHLI, J.
GAUT, J.