People v. Torres CA2/6 ( 2021 )

Filed 4/19/21 P. v. Torres CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B298408
(Super. Ct. No. 1496645)
Plaintiff and Respondent, (Santa Barbara County)
v.
MATTHEW ROBERT
TORRES,
Defendant and Appellant.
Matthew Robert Torres appeals a judgment following his
conviction of first degree residential burglary (Pen. Code,1 § 459),
a felony, with a finding that another person was present during
the crime (§ 667.5, subd. (c)(21) (count 1); forcible lewd act upon a
child under the age of 14 (§ 288, subd. (b)(1)), a felony, with a
finding he committed the offense during the commission of a first
degree burglary (§ 667.61, subds. (b), (e)(2), (j)(1) & (2)), with the
intent to commit one of the crimes charged in counts 2–5 (id.,
1 All statutory references are to the Penal Code.
subds. (d)(4), (j)(1) & (2)), and committed the offense against more
than one victim (id., subds. (b), (c)(4), (7) or (8), (e)(4)) (count 2);
lewd act upon a child under the age of 14 (§ 288, subd. (a)), a
felony, with a finding he committed the crime during the
commission of first degree burglary (§ 667.61, subds. (b), (e)(2),
(j)(1) & (2)), with the intent to commit one of the crimes charged
in counts 2–5 (§ 667.61, subds. (d)(4), (j)(1) & (2)), and committed
the offense against more than one victim (id., subds. (b), (c)(4), (7)
or (8), (e)(4)) (counts 3 and 4); oral copulation of a child under the
age of 14 (§ 288, subd. (c)(1)), a felony, with a finding that he
committed the offense during the commission of first degree
burglary, with the intent to commit one of the crimes charged in
counts 2–5, and committed the offense against more than one
victim (count 5); oral copulation of a child under the age of 14
(§ 288, subd. (c)(1)) (count 6).
The trial court sentenced Torres to an aggregate sentence
of life without the possibility of parole plus 50 years to life.
We conclude, among other things, that 1) the trial court
correctly found Torres was competent to stand trial; 2) it properly
denied his Marsden motions (People v. Marsden (1970) 2 Cal.3d
118); 3) it did not err by denying Torres’s Faretta motion (Faretta
v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562]) to represent
himself; but 4) in sentencing, the court did not properly
determine the fine it imposed under section 290.3. The court also
found the sentence it imposed was “so long and so harsh” that
“it’s somewhat absurd,” but it felt it was required to impose it by
statute and only an appellate court could reduce the punishment.
The court, however, did not consider its own authority to
determine whether the sentence it was imposing violated the
constitutional ban on cruel or unusual punishment as applied to
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this defendant. We remand for resentencing. In all other
respects, we affirm.
FACTS
In the summer of 2016, J.H. and his wife and two young
daughters, Jane Doe 1 and Jane Doe 2, took a trip to Santa
Barbara and rented an apartment. As part of their trip, the
family visited Santa Barbara and rented an apartment.
Jane Doe 1 and Jane Doe 2 were sleeping in their bedroom.
Jane Doe 1 testified at night Torres, a stranger, came through a
side door into their bedroom and got into bed with her and her
sister. It was dark and Jane Doe 1 thought Torres was her
father. She felt “something moist in-between” her legs. Torres
was licking her private area between her legs. He then forced her
head down toward his penis. Her head “didn’t touch anything
because [she] was pushing back.” Torres grabbed her arm. He
was pulling her. She resisted and pulled her arm back. She was
only six years old at that time and did not understand what was
happening.
Jane Doe 2 testified that on July 22, 2016, she was five
years old. Torres entered her bed and “licked between [her] legs.”
He also licked her buttocks.
J.H. woke up to “the sound of [his] daughters’ voices.” He
felt “a wiggle” on his foot. It “felt wet.” J.H. “sat up in bed” and
saw Torres in his room. J.H. got up, turned on the light, and
asked Torres who he was. Torres responded that his name was
Matthew. J.H. forced him out, unlocked the front door, and
pushed Torres out of the apartment. He then called 911.
Doctor Margot Roseman testified that she conducted a
sexual assault examination of Jane Doe 1 and Jane Doe 2. She
used a swab to collect DNA evidence. She swabbed the girls’
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vagina and buttocks areas, and placed the swabs in a container to
be sent to the Department of Justice laboratory.
Doctor Samantha Skotarczyk testified the laboratory
received the samples obtained by Doctor Roseman. It also
received Torres’s “buccal swab.” Jane Doe 1’s “vulva swab” and
“mons pubis swab” contained DNA evidence consistent with
Torres’s DNA. Jane Doe 2’s “buttocks swab” contained DNA
“consistent with the profile for Matthew Torres.”
In the defense case, Dr. Layth Hakim, a psychiatrist,
testified he prescribed Zyprexa for Torres because he has a
delusional disorder. Zyprexa may be used to treat “psychosis.”
Torres was on Zyprexa for some period and the side effects can
include “some dizziness.” Torres is not malingering or
manufacturing symptoms. One medical report shows “there’s an
indication of psychosis,” which is “indicative of a psychotic
disorder.” There was also a finding of “thought blocking,” which
is “typically seen in people [with] schizophrenia or schizoaffective
disorder.”
Torres testified that he was admitted to the emergency
room at Cottage Hospital. The doctors administered drugs. He
lost “consciousness.” He was released from the hospital on July
22. He did not recall leaving the hospital. He drank an alcoholic
beverage and felt “very sick.” He went to a bar and someone
placed drugs in his drink. He lost consciousness and blacked out.
He testified, “I cannot remember anything.” He next
remembered police officers placing him under arrest.
In rebuttal, Doctor Steven Mills of Cottage Hospital
testified he treated Torres after he was brought into the hospital
on July 24, at 1:38 a.m., by the police. Torres had no “acute
medical issues of concern.” There was a “smell of alcohol.” He
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was able to walk and he had a “steady gait.” His speech “was
normal.” His memory “was normal.” There were “[n]o focal
motor deficits and no focal sensory deficits.” Had Torres had any
“delusions or indications of psychiatric illness,” Mills would have
noted that in his report.
The trial court instructed the jury that the People had to
prove Torres committed the acts with “wrongful intent.” The jury
could consider the evidence concerning Torres’s mental disease in
deciding whether he acted with the requisite criminal intent for
certain offenses, and that he could not be found guilty if he
committed the acts “while unconscious” as a result of being
“involuntarily intoxicated.” Torres’s counsel told the jury that
Torres was in a “mentally out of it state.” He said Torres had a
“[d]elusional disorder,” “[s]chizophrenia,” and “[c]learly [had]
mental health issues going on.” The jury found Torres guilty.
Motions and Hearings
The trial court was informed before trial that Torres had
mental health issues. It held competency hearings. The court
ordered Torres to be evaluated by doctors. After receiving
medical evidence, it ultimately ruled Torres was competent to
stand trial.
Torres filed Marsden motions claiming his counsel was not
properly representing him. The trial court held hearings on these
motions and denied them.
Torres filed a Faretta motion to represent himself at trial.
The court denied the motion ruling that, although Torres was
competent to stand trial, he was not competent to represent
himself at trial.
After the jury verdicts, Torres filed a motion for new trial.
The trial court denied the motion.
5
At the sentencing hearing, the trial court imposed an
aggregate sentence of life without the possibility of parole plus 50
years to life. Torres’s counsel claimed the sentence was “cruel
and unusual punishment” because Torres was a “sick” person.
DISCUSSION
Was Torres Competent to Stand Trial?
Torres contends the trial court erred by finding he was
competent to stand trial.
“[T]he conviction of an accused when he is legally
incompetent violates due process.” (People v. Medina (1990) 51
Cal.3d 870, 881.) “[A] competency hearing is required whenever
substantial evidence of the accused’s incompetence has been
introduced.” (Id. at p. 882.)
“A defendant is mentally incompetent . . . if, as a result of a
mental health 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).) “It shall be presumed that
the defendant is mentally competent unless it is proved by a
preponderance of the evidence that the defendant is mentally
incompetent.” (§ 1369, subd. (f).)
“When . . . a competency hearing has already been held and
the defendant was found to be competent to stand trial, a trial
court is not required to conduct a second competency hearing
unless ‘it “is presented with a substantial change of
circumstances or with new evidence” ’ that gives rise to a ‘serious
doubt’ about the validity of the competency finding.” (People v.
Marshall (1997) 15 Cal.4th 1, 33.) “More is required than just
bizarre actions or statements by the defendant to raise a doubt of
competency.” (Ibid.) “[A] reviewing court generally gives great
6
deference to a trial court’s decision whether to hold a competency
hearing.” (Ibid.) “ ‘ “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.” ’ ” (Ibid.)
In reviewing the sufficiency of the evidence, we draw all
reasonable inferences from the record in support of the trial
court’s factual findings. We do not decide the credibility of the
witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Torres
cites to evidence in the record that he claims supports his
position. But the issue is not whether some evidence supports
appellant, it is whether substantial evidence supports the court’s
fact findings.
Torres contends the trial court erred because the record
shows he was not competent to stand trial.
The People respond that there were multiple competency
proceedings and each of the trial court’s rulings was supported by
the evidence. We agree.
The March 2017 Competency Proceedings
At this pre-trial proceeding, the trial court was aware of
Torres’s mental health issues. It initially received evidence in
the March 2017 trial court proceedings concerning Torres’s
competency to stand trial. In a report by James A. Tahmisian,
Ph.D., Tahmisian determined that 1) Torres understood the
charges against him; 2) Torres had the ability to cooperate with
his attorney; 3) Torres had the present ability to consult with his
lawyer; 4) there are “no indicators that [Torres] lacks rational as
well as factual understanding of the proceedings against him”;
and 5) Torres “is competent to stand trial.” (Boldface omitted.)
7
Torres notes that Katherine J. Emerick, Ph.D., concluded
that he was not competent to stand trial, but the trial court found
“Dr. Tahmisian’s report was better reasoned.” Tahmisian spent
more time interviewing Torres than Emerick, and his report
contained more detailed findings. The trial court initially decides
the weight and credibility of the evidence. The court could
reasonably find that there was a conflict in Emerick’s report
which raised questions about the report’s conclusions and
findings. One part of her report concluded Torres did not have
the ability to understand the proceedings, but another part found
he “understands the charges against him.” The finding that he
understands the charges against him is consistent with
Tahmisian’s conclusions. Emerick also found Torres “understood
the roles of the various Court officers.”
Torres has not shown the trial court erred in finding him
competent to stand trial. The court’s finding is supported by the
medical evidence presented by Dr. Tahmisian. (People v.
Blacksher (2011) 52 Cal.4th 769, 798 [trial court’s reliance on
single medical report to find defendant competent to stand trial
was not error]; People v. Williams (2015) 242 Cal.App.4th 861,
872; People v. Achrem (2013) 213 Cal.App.4th 153, 159; People v.
Zapisek (2007) 147 Cal.App.4th 1151, 1165; People v. Bowers
(2006) 145 Cal.App.4th 870, 879.)
The December 7, 2017, Competency Hearing
At a December 7 pre-trial hearing, Torres’s counsel again
raised an issue about Torres’s competency to stand trial. He
argued that Torres was not able to rationally cooperate with him
in presenting a defense.
The trial court suspended the proceedings and appointed
doctors to examine Torres. The court subsequently received
8
medical reports from two doctors which confirmed counsel’s
claims. The court found, “[B]oth doctors find that Mr. Torres
requires the administration of psychotropic medication in order
to regain competency.” It suspended the proceedings and ordered
the “community program director or his designee” to evaluate
Torres and file a report with the court. It later ordered Torres
transferred to a state hospital and stated, “Criminal proceedings
remain suspended until Mr. Torres has regained his competency
to stand trial.”
The trial court’s decision to temporarily suspend
proceedings until Torres’s competency could be determined and
potentially restored, instead of making a final ruling that he was
incompetent to be tried, was not an abuse of discretion. Dr.
Murphy, one of the appointed doctors, concluded Torres was
currently not competent to stand trial, but “medication is likely to
render the defendant competent to stand trial.” The court
properly relied on medical evidence that supported the view that
his current temporary incompetency could be successfully treated
and he could potentially be restored to competency after
treatment.
The August and September 2018 Competency Proceedings
The trial court subsequently received a report from Dr.
Fennell, the medical director of Atascadero State Hospital, in
August certifying that Torres was now competent. The court
found: 1) this was a “certification of mental competency pursuant
to [section] 1372”; and 2) the “medical staff” of the hospital
“believes that Mr. Torres is now competent to stand trial.”
At a competency hearing after the filing of a certification of
mental competence under section 1372, the party claiming the
9
defendant is not competent to stand trial has the burden of proof
on that issue. (People v. Rells (2000) 22 Cal.4th 860, 862.)
Torres’s counsel requested a hearing to show that Torres
was not competent to stand trial. Torres testified that he
understood that he was being charged with very serious offenses.
He knew that he could be facing a life sentence. He was
competent to stand trial. Torres said competency to stand trial
means, “I understand my criminal charges. And the courtroom
proceedings.” He understood the judge’s role, the role of the
lawyers and defense counsel. He knew the role of the prosecutor
is to “present the charges to the court.” Torres said he knew
there was video evidence that would be introduced at trial. He
described what he wanted as a defense strategy. Torres testified
he was willing to try to work with his counsel. He was willing to
allow counsel to see his medical records.
The trial court found Torres was competent to stand trial.
Torres has not shown this finding was not supported by the
evidence. The court had the medical certification of his
competency. It noted the medical staff at the hospital determined
Torres was competent to stand trial, and it was in the best
position to observe his demeanor and determine the credibility of
his testimony. (People v. Marshall, supra, 15 Cal.4th at p. 33;
People v. Bowers, supra, 145 Cal.App.4th at p. 879.) Torres
understood the charges, the potential punishment, the role of the
court and counsel, and he indicated his willingness to work with
his counsel. In observing Torres as he testified, the court said,
“[Y]ou sound competent.” (People v. Blacksher, supra, 52 Cal.4th
at p. 798.)
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The January 11, 2019, Competency Proceedings
Torres’s counsel again raised a “doubt” about Torres’s
competency. Counsel said there was a defense of not guilty by
reason of insanity, but Torres would not consider it. Torres was
not taking his medications.
The trial court declared a “doubt,” suspended the
proceedings, and appointed doctors to evaluate Torres. The
parties agreed to submit the issue on the January 25, 2019,
evaluation of Torres conducted by Dr. Tahmisian.
Tahmisian determined that Torres 1) “has a complete
understanding of the charges filed and courtroom personnel and
proceedings”; 2) has “sufficient present ability to consult with his
attorney with a reasonable degree of rational understanding”;
and 3) is “competent to proceed to trial at this time.”
The trial court found Torres was competent to stand trial
and it reinstated criminal proceedings. Torres has not shown
error. The finding of competence was supported Tahmisian’s
medical evidence. (People v. Blacksher, supra, 52 Cal.4th at
p. 798; People v. Achrem, supra, 213 Cal.App.4th at p. 159.)
The April 10, 2019, Incident
Torres argues the April 10, 2019, incident shows he was not
competent to stand trial.
During trial, the trial court received notice from the jail
that Torres made statements about suicide and he was placed in
“a safety cell.” The court temporarily suspended trial
proceedings. It had mental health staff evaluate Torres. Shortly
thereafter, the staff determined that Torres was cleared to come
to court.
The trial judge was familiar with Torres’s conduct during
trial. It found this was not a genuine mental health issue.
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Instead, the “timing” of this event was “a deliberate attempt to
kind of create some chaos and muck up the trial process.” The
court noted that on a prior occasion, after Torres received an
unfavorable ruling from the court, he falsely “claimed he was
faint.” When questioned by the court, Torres admitted, “I’m not
faint.” Here the mental health staff had cleared Torres to come
to trial this day. The trial court was in the best position to
determine whether a defendant is attempting “to feign insanity”
or trying to “delay the proceedings.” (People v. Marshall, supra,15 Cal.4th at p. 33.) Torres has not shown error or cited to any
medical evidence to support his position. (People v. Rogers (2006)
39 Cal.4th 826, 848 [evidence of defendant’s suicidal tendencies
does not, by itself, constitute substantial evidence of
incompetence unless it is accompanied by medical evidence to
support the claim].)
Torres’s Disputes with His Counsel about Defenses
Torres notes that his counsel told the trial court that he
(Torres) had been prescribed “antipsychotic medications” and
counsel wanted to present evidence at trial about his (Torres’s)
“mental” health conditions at the time of the offenses. Torres
disagreed with that approach. He wanted counsel not to use his
psychiatric records to show a mental disorder. Torres wanted his
counsel to introduce evidence to show his mental state was
impacted by Cottage Hospital’s treatment before the offenses and
“medications to help with withdrawals and to help with [his]
platelet disorder.”
Torres contends this should have raised a doubt about his
competency to stand trial and triggered the trial court to hold
another competency hearing. He claims his defense proposals
were irrational. But “[m]ore is required than just bizarre actions
12
or statements by the defendant to raise a doubt of competency.”
(People v. Marshall, supra, 15 Cal.4th at p. 33.)
That an attorney and a client have a difference of opinion
about the best defenses is not unusual. Nor does it automatically
classify the defendant as being incompetent to stand trial. “An
insistence upon innocence is not unknown among those accused
of crime.” (People v. Blacksher, supra, 52 Cal.4th at p. 798.) It is
not a sign of insanity. It reflects “an ability to formulate a
defense to the charges against [the defendant].” (Ibid.) A
“defendant’s refusal to present mitigating evidence,” such as a
mental illness insanity or incompetence defense suggested by his
counsel, “is not by itself substantial evidence of incompetence
requiring the trial court sua sponte to order a competency
hearing.” (People v. Stanley (1995) 10 Cal.4th 764, 806.) The
defendant’s personal belief that he is competent “is entitled to
respect.” (Ibid.)
Here the trial court did not consider Torres’s defense theory
and the theory proposed by his counsel to be mutually
inconsistent. Nor did it consider Torres’s theory to be absurd or a
sign of a mental disorder. In fact, the court suggested Torres’s
defense theory could be supported by calling the Cottage Hospital
doctor who administered the medication. Torres’s proposed
defense about intoxication-induced unconsciousness could
produce evidence relevant to determine whether he had the
requisite intent for committing some of the charged crimes, e.g.,
burglary. (People v. Navarette (2003) 30 Cal.4th 458, 503; People
v. Lewis (2001) 25 Cal.4th 610, 650; People v. Ervin (2000) 22
Cal.4th 48, 91.) He also had the right to testify and “to give an
exposition of his defense before a jury” even if it differed from his
13
counsel’s preferred strategy. (People v. Robles (1970) 2 Cal.3d
205, 215.)
The trial court also properly allowed Torres’s counsel to
present the evidence he felt was necessary to support a defense
based on mental illness. A defendant’s attorney is required to
“ ‘advocate the position counsel perceives to be in the client’s best
interests even when that interest conflicts with the client’s stated
position.’ ” (People v. Stanley, supra, 10 Cal.4th at p. 804.) As
the People note, Torres did not want his medical records used by
counsel. But the court found counsel could use the records to
protect Torres’s right to a fair trial. They could be used to show
Torres suffered from a “mental illness,” and as a result he could
not form the criminal “intent” to commit crimes and was not
“aware of what he was doing.”
The trial court’s approach properly “permitted the jury to
hear every side of the issue of defendant’s competence, thereby
assuring defendant a fair trial.” (People v. Stanley, supra, 10
Cal.4th at pp. 806-807.) It allowed jurors to decide whether
Torres had a delusional mental disorder as shown by Dr. Hakim’s
testimony, or a temporary drug-induced mental blackout as
shown by Torres’s testimony, or both.
Moreover, Torres has not shown that the decision not to
hold another competency hearing constituted error. The trial
court had previously reviewed medical records showing that he
was competent. It had a substantial opportunity to observe his
behavior in court. “[A]bsent 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
14
defendant during trial.” (People v. Mai (2013) 57 Cal.4th 986,
1033.)
Torres’s June 10, 2019, Post-Verdict Motion
After the jury verdict and before sentencing, Torres filed a
motion to enter a plea of not guilty by reason of insanity.
The trial court denied the motion. It found it was “too late”
post-verdict to enter an insanity plea. It would be “undoing what
the jury had done.” The plea would have to be entered prior to
trial.
The trial court did not err. “[A] motion to enter a plea of
not guilty by reason of insanity is not timely when the motion is
first made after the rendition of a jury verdict.” (People v.
Hagerman (1985) 164 Cal.App.3d 967, 977.)
Moreover, the trial court found the motion also was not
meritorious. It said Torres “was attempting to manipulate the
criminal justice system” by attempting to make an insanity plea
at this late stage of the proceedings. The court had sufficient
opportunity to view Torres’s conduct during trial to be able to
make this finding about the credibility of the filing of this motion
at this time. (People v. Marshall, supra, 15 Cal.4th at p. 33.)
Counsel’s Request for a Post-Verdict Sanity Hearing
Torres’s counsel requested a post-verdict hearing on
Torres’s sanity. The trial court rejected that request.
Torres suggests the trial court erred by not holding another
hearing on the insanity issue at that time. But Torres did not
meet his burden to present “a substantial change of
circumstances” or “new evidence” to support holding such a
hearing. (People v. Marshall, supra, 15 Cal.4th at p. 33.)
In denying the request for another sanity hearing, the trial
court made a series of factual findings based on its observation of
15
Torres at the various stages of the proceedings–pre-trial, during
trial, and post-verdict. It said it did not see “anything to suggest
he’s not competent” 1) “prior to the course of the trial,” 2) “during
the course of the trial,” 3) “during the return of the verdict,” or 4)
during the sentencing hearings. The court added that there was
nothing “even today that would suggest that he’s incompetent.”
These observations were relevant to the court’s determination on
this issue. (People v. Mai, supra, 57 Cal.4th at p. 1033.)
The trial court also made findings on Torres’s sanity based
on the medical reports it had reviewed. It said, “I think the latest
reports and evaluations that we received from mental health
experts is that he’s presently competent, he’s lucid, clearly
understands what he’s facing, in terms of a judgment.”
Torres contends his defense strategy that he proposed to
counsel showed that he was not competent and he lacked the
ability to understand the issues. But the trial court rejected
these claims. It said, “[Torres] clearly understood the issues that
were before the jury during the trial. He clearly had fashioned a
defense, if believed by the jury, would result in very different
verdicts.” The court’s consideration of Torres’s right to present
evidence in his defense case to support his defense theory was
proper. (People v. Stanley, supra, 10 Cal.4th at pp. 806-807.) In
addition, we are required to give “great deference to a trial court’s
decision whether to hold a competency hearing.” (People v.
Marshall, supra, 15 Cal.4th at p. 33.) Torres has not shown
error.
The Marsden Motions
Torres contends the trial court abused its discretion by
denying his Marsden motions seeking to change counsel.
16
The People respond that a review of each motion shows the
trial court committed no error. We agree.
A defendant has the right to a hearing involving his or her
request to change counsel. (People v. Marsden, supra, 2 Cal.3d at
p. 123.) “ ‘ “A defendant is entitled to relief if the record clearly
shows that the first appointed attorney is not providing adequate
representation . . . or that defendant and counsel have become
embroiled in such an irreconcilable conflict that ineffective
representation is likely to result . . . .” ’ ” (People v. Memro (1995)
11 Cal.4th 786, 857.) A defendant’s dislike of counsel is “ ‘not
enough [to show a conflict of interest].’ ” (Ibid.) “ ‘ “[I]f a
defendant’s claimed lack of trust in, or inability to get along with,
an appointed attorney were sufficient to compel appointment of
substitute counsel, defendants effectively would have a veto
power over any appointment and by a process of elimination
could obtain appointment of their preferred attorneys, which is
certainly not the law.” ’ ” (Ibid.) “We review the court’s rulings
for an abuse of discretion.” (Ibid.)
The January 6, 2017, Marsden Motion
Torres filed a Marsden motion seeking to replace his
counsel. He claimed he had “trust issue[s]” with attorney Hanley
because Hanley promised to send him discovery in October, but
he did not receive it until December 28. Torres said Hanley has
been “very nice and respectful.” He claimed he had difficulty
talking to Hanley and speaking with him confidentially, but he
acknowledged Hanley has been “very busy.”
The trial court asked Torres, “Do you think Mr. Hanley has
properly represented you so far?” Torres: “Well, Your Honor, I do.
I do.” (Italics added.)
17
Hanley told the trial court that he had been a public
defender for 21 years with “lots of experience” involving cases
such as Torres’s. He offered to send the redacted discovery to
Torres in jail. He had at least two conversations with Torres
about this, but Torres said not to send the discovery to the jail.
Hanley said Torres “requested [transcripts of] interviews with
the detectives,” and he told Torres that “we certainly will get
transcripts of those interviews.”
Hanley said, “[W]e have had multiple confidential
communications” in visitation, both “across the street” and
“through closed circuit video monitor from the jail to the public
defender’s office.” Torres wanted “a closed courtroom during the
proceedings.” Hanley explained to him that “the courts are open
courts.” Hanley said, however, “I made requests from the
prosecutor to please do what she could to not name the charges in
open court.” Torres has a list of motions that he wants filed.
Hanley said, “I’m very interested in whatever motions [Torres]
thinks should be filed. I really want to hear from him.” Torres
made a request that he be transported to court in a manner that
would prevent the public from seeing him. Hanley told him he
would speak with the sheriff’s deputies to see if that is possible.
As to his availability for receiving telephone calls from
Torres, Hanley said that “jail communications are difficult.”
“[I]nmates aren’t able to leave messages . . . . I am most of the
time not in my office. I . . . will make an effort to be more
available to him. I want to represent him.”
The trial court denied the motion. It found Hanley was
properly representing Torres and there was no “breakdown” in
his relationship with counsel that would lead to ineffective
representation.
18
Torres has not shown the trial court erred by denying his
motion. He admitted that Hanley was properly representing him.
(People v. Memro, supra, 11 Cal.4th at p. 857.) From Hanley’s
responses, the court could reasonably infer that counsel was
responsive to Torres’s requests and suggestions.
The March 16 and March 30, 2017, Marsden Motions
On March 16, Torres complained that there was a lack of
communication between himself and counsel. Hanley responded
that “he had had extensive communications with Mr. Torres
regarding his case.” (Italics added.)
At the March 30 Marsden motion hearing, Torres claimed
he was “entitled to a lawyer of his choice and that he could not be
forced to accept a lawyer over his objection.” He claimed his
counsel was not responsive to his calls, had not shared complete
discovery with him, and was not prepared for various court
hearings.
Hanley responded that 1) he was prepared to address the
issues at each court appearance; 2) he did not meet with Torres
“as frequently as Mr. Torres would have liked,” but he had met
with him “on enough occasions to keep him advised of the
evidence” and the issues; 3) he and his investigator met with
Torres after March 21; and 4) he had discussed the contents of
the video surveillance evidence.
The trial court denied these motions and found Hanley
“had met and provided Mr. Torres with a complete account of the
discovery.” Torres was not entitled to a “veto power over any
appointment” of counsel so he could select his “preferred”
attorney. (People v. Memro, supra, 11 Cal.4th at p. 857.)
19
The April 3, 2019, Marsden Motion
Torres claimed: 1) Hanley’s “work product is insufficient,”
and 2) he had not had a discussion with Hanley that lasted more
than 15 minutes. Hanley responded that he had adequate
contact with Torres; that he met with Torres in jail for three
hours with his investigator. There was no breakdown in his
relationship with Torres. He was providing the best defense for
Torres.
The trial court denied the motion. It did not find Torres’s
claims to be credible. It said, “[Y]ou don’t get to pick and choose
the attorney that is appointed to represent you at government
cost.” “You haven’t indicated to me anything that really
suggest[s] that what he’s doing isn’t beneficial to you . . . .” The
facts presented by Hanley supported the denial of this motion.
(People v. Memro, supra, 11 Cal.4th at p. 857.)
The April 10, 2019, Marsden Request
On April 10, 2019, Torres made a reference to the prior
Marsden hearing. He said, “I don’t feel like I had a fair hearing
on [the prior Marsden motion].” The court responded, “We’re not
going to have another Marsden motion at this time.”
Torres suggests the trial court erred by not holding another
hearing. But Torres did not state valid grounds for another
Marsden hearing. His claim was that the trial judge was “not
impartial” in the prior concluded hearing. The court had already
denied a series of Marsden motions. It could reasonably decide
not to grant another hearing based on a claim primarily directed
at the court’s impartiality, rather than on his counsel’s
effectiveness. (People v. Memro, supra, 11 Cal.4th at p. 857.)
20
Torres’s June 13, 2019, Motion for a New Trial
After the jury verdicts, Torres filed an in propria persona
motion for a new trial. This was largely another Marsden motion
where he complained about the performance of his trial counsel
and counsel’s defense strategies.
The trial court denied the motion. It found his counsel had
provided effective representation. The court said, “I don’t know
that any defense attorney could have done more for you, Mr.
Torres, than Mr. Hanley did. He bent over backwards to both
accommodate you, in terms of the issues and the defenses you
wanted to present to the jury . . . , he also supplemented that
with other kinds of arguments about whether you had the
capacity, or whether you had the ability to form the intent that
would be necessary for some of the offenses, including burglary.
So there was a lot that was presented to the jury, none of it really
inconsistent, all focusing on mental, your mental capacity,
whether it had to do primarily with intoxication, or just your
mental state. But I think you were provided much more than
competent defense, an outstanding defense.”
In summary, in all the Marsden hearings, the trial court
carefully considered all of Torres’s claims. It could reasonably
find: 1) Torres’s lawyer responded to Torres’s concerns and acted
in his best interest, and 2) any disagreement Torres had with
counsel over defense strategy did not compromise Torres’s right
to receive effective representation. (People v. Stanley, supra, 10
Cal.4th at pp. 806-807.)
The Faretta Motion
Torres contends the trial court improperly denied his right
to self-representation under Faretta v. California, supra, 422 U.S.
806 [45 L.Ed.2d 562]. We disagree.
21
“[T]he Sixth Amendment to the United States Constitution
gives criminal defendants the right to represent themselves.”
(People v. Johnson (2012) 53 Cal.4th 519, 525-526.) Here the
court ruled Torres was competent to stand trial. But “a
defendant may be denied the right to self-representation if he or
she, although competent to stand trial, suffers from a severe
mental illness and is unable to conduct trial proceedings without
assistance of counsel.” (People v. Buenrostro (2018) 6 Cal.5th
367, 426, fn. 25.)
In Johnson, the court held the defendant was competent to
stand trial, but “was not competent to conduct trial proceedings
by himself” as he had a “delusional thought disorder coupled with
conspiracy paranoia.” (People v. Johnson, supra, 53 Cal.4th at
p. 532.) The court noted that the “[trial] judge’s own observations
of the defendant’s in-court behavior will also provide key support
for an incompetence finding” for self-representation. (Id. at
p. 531.) The trial court in Johnson properly considered the
defendant’s thought deficiencies which could deprive him of a fair
trial. These included his “ ‘ “disorganized thinking, deficits in
sustaining attention and concentration, impaired expressive
abilities, anxiety and other common symptoms of severe mental
illness.” ’ ” (Id. at p. 532.) The trial court’s ruling on self-
representation based on the court’s observations of the defendant
is entitled to appropriate deference. “Such deference is especially
appropriate when, as here, the same judge has observed the
defendant on numerous occasions.” (Id. at p. 531.) We review the
trial court’s ruling for an abuse of discretion. (Id. at p. 532.)
Here the trial court had a substantial opportunity to
observe Torres’s ability to represent himself and his conduct
during court proceedings. At the initial pre-arraignment
22
proceedings on May 25, 2017, Torres was representing himself.
The court warned him that he “may be better served if [he was]
represented by a lawyer.” On June 22, 2017, Torres requested
the court to appoint a public defender to represent him. The
court appointed the public defender’s office. Attorney Michael
Hanley was the public defender selected to represent Torres.
On August 3, 2017, Torres requested the trial court to
appoint “somebody other than Mr. Hanley to represent [him].”
Despite having appointed counsel, Torres told the court, “I am
still pro. per.” The trial judge reminded Torres that he had made
a request for counsel. At the pre-arraignment hearing on August
24, 2017, Torres told the court, “I’m pro. per.” The trial judge had
to explain that he was “not pro. per.” and was represented by
counsel. On October 5, 2017, Torres requested the court to have
Hanley appear only “as advisory counsel.” Later at that hearing
Torres told the court, “If Michael Hanley was appointed to my
case, then I’ll just go ahead and accept that today.”
On April 3, 2019, Torres requested the trial court to allow
him to represent himself under Faretta. The court found the
request was untimely because the request should have been
made 18 months earlier. It was made during jury selection, when
witnesses had been travelling from out of the country to court
and on the “eve of trial.” A trial court may properly consider
these factors in determining whether a Faretta motion should be
denied as untimely. (People v. Buenrostro, supra, 6 Cal.5th at
p. 426.)
On the merits the trial court said Torres did not have “the
skills” necessary to represent himself.
But the trial court allowed Torres to raise the Faretta issue
again on April 5, 2019. At that hearing the court said it had
23
reviewed the “competency reports” that the doctors had filed with
the court. Torres had initially represented himself, but then he
“decided that [he] needed the help of an attorney.” The court felt
Torres was “fairly simplistic in [his] analysis of the issues,” that
he was “somewhat halting in . . . the manner in which [he]
communicate[s].” The court found Torres was not prepared: “I
can see by the lack of any work product from you that is
noticeable . . . .” It said, “I’m reluctant to continue the case for
you to get prepared.”
But the trial court took additional time to carefully
evaluate the Faretta issue. It decided to watch Torres and his
demeanor during the proceedings. The court told Torres that he
was competent to stand trial, but that “is a slightly different
issue than [his] competence to represent [him]self.” In watching
Torres during jury selection, the court noted that he appeared
“catatonic.” He was not observing the demeanor of the
prospective jurors. He was not “fully focused” on the proceedings.
He was only “shuffling” a few pieces of paper.
During one prior court hearing, Torres’s counsel advised
the court that Torres had been “diagnosed with schizophrenia
paranoid type” and had been prescribed “antipsychotic
medications.”
On April 8, 2019, the trial court issued its decision denying
the Faretta motion. It highlighted Torres’s serious mental health
issues. It noted that on July 6, 2017, the jail sent a notice that
Torres could not be transported “because of mental health
issues,” that he might be a “danger to himself or others,” and that
his medical condition required observation and treatment. On
August 3, Torres was “raising a variety of mental health issues.”
He had requested a psychologist “because of emotional and
24
psychological damages.” The court noted that doctors had
indicated that Torres has “mental health” issues that
“intermittently appear.” It said Torres continues to have
“paranoia regarding the role of the court and his attorney.” He
also “demonstrates paranoia about the various people involved in
the system.” It said Torres is “a little bit irrational in his
evaluation of the evidence.” He is “pretty consistently in denial
regarding . . . the defenses” his attorney claims are supported by
the record. The court found he is “competent to stand trial.” But
it also said, “I’m also completely convinced that based on my
observations and review of the record, his rather lengthy mental
health record that he’s not competent to represent himself.” For
Torres to represent himself “would be a travesty and would result
in a manifest injustice.”
The trial court had also previously found that on more than
one occasion Torres had engaged in deliberate tactics that were
intended to “create some chaos and muck up the trial process.”
The use of such tactics to interrupt trial is a relevant factor in
determining whether a defendant is capable of representing
himself. (People v. Carson (2005) 35 Cal.4th 1, 10; People v.
Smyers (1968) 261 Cal.App.2d 690, 701 [self-representation is not
a vehicle “to disrupt unreasonably the orderly processes of
justice”].) Torres has not shown that the trial court erred.
Moreover, Torres has not supported his claim that there
was a reasonable probability of a different result if he had been
permitted to represent himself at trial. Torres testified at trial
and he was allowed to present his defense theory as part of the
defense case. But the jury rejected the defense evidence. Dr.
Mills’s testimony in rebuttal refuted Torres’s claim about his
mental state at the time of the offenses. The People’s case was
25
strong. The evidence of the two child victims was uncontradicted.
It was also supported by highly incriminating DNA evidence
taken from swabs from the children’s vaginal and anal areas.
Sentencing
Torres and the People agree that the trial court in
sentencing erred by imposing an unauthorized fine under section
290.3. They contend the court imposed the fine of $1,230. But
they note that the statutory provision sets forth the specific fines
that are authorized under that provision, and the fine the court
imposed is not one of them.
The statute provides, “Every person who is convicted of any
offense specified in subdivision (c) of Section 290 shall, in
addition to any imprisonment or fine, or both, imposed for
commission of the underlying offense, be punished by a fine of
three hundred dollars ($300) upon the first conviction or a fine of
five hundred dollars ($500) upon the second and each subsequent
conviction, unless the court determines that the defendant does
not have the ability to pay the fine.” (§ 290.3, subd. (a).) The
trial court’s imposition of an unauthorized fine, which also did
not include adequate required findings, constitutes reversible
error. (People v. High (2004) 119 Cal.App.4th 1192, 1200-1201.)
The court may correct that error on remand for resentencing and
issue an amended abstract of judgment.
But we also have a sua sponte duty to correct other legal
errors the trial court made during sentencing. (People v. Smith
(2001) 24 Cal.4th 849, 852; In re Ricky H. (1981) 30 Cal.3d 176,
191; In re Sandel (1966) 64 Cal.2d 412, 418.) The court imposed
the aggregate sentence of life without the possibility of parole
plus 50 years to life, accompanied by the following findings, “So
anybody in these proceedings would undoubtedly come to the
26
conclusion that the sentence imposed is so long and so harsh that
it presents–that it’s somewhat absurd.” (Italics added.) The
court stated, “[T]hese are sentences that are mandated by the
Legislature . . . .” It ruled it could not reduce the sentence
“unless this case is reversed on appeal.” During sentencing, the
court did not appear to challenge or disagree with defense
counsel’s claims that the sentence was too harsh. Counsel
mentioned Torres’s mental health problems. The court had
previously highlighted the nature of those problems; and during a
March 29, 2019, hearing, the court asked the prosecutor to
consider a much shorter determinate sentence of 20 years for
Torres.
To the extent the trial court found it was bound by state
statutes to impose a sentence that it found to be too long, too
harsh and absurd, it was wrong. The trial court also had the
authority to consider the constitutional limitations of a sentence,
including whether the sentence violates the state and federal
constitutional bans on cruel or unusual punishment as applied to
a particular defendant. (In re Lynch (1972) 8 Cal.3d 410, 418
[where the application of state statutory law imposes a harsh and
unreasonable sentence for a defendant, “that same sentence must
also be measured against the constitutional test of cruel or
unusual punishment”].) Torres’s sentence is not constitutionally
disproportionate for Eighth Amendment purposes. (People v.
Reyes (2016) 246 Cal.App.4th 62, 82-86.)
But “[t]he punishment provided by law may . . . run afoul of
the constitutional prohibition against cruel or unusual
punishment in article 1, Section 17, of the California
Constitution.” (People v. Mora (1995) 39 Cal.App.4th 607, 615.)
The trial court may consider facts about the offender in making
27
its determination on this constitutional issue, including the
defendant’s age, prior criminality, personal characteristics, and
his or her state of mind, mental health condition, etc. (People v.
Dillon (1983) 34 Cal.3d 441, 479.) Successful challenges are rare,
but they are not precluded given the varying individual factors
that may be involved in each case. (People v. Reyes, supra, 246
Cal.App.4th at pp. 86-87.) The trial court in the first instance
has the authority to rule on this issue. (People v. Leigh (1985)
168 Cal.App.3d 217, 223-224.) A reversal is appropriate where
the trial court does not know its sentencing discretion. (In re
Large (2007) 41 Cal.4th 538, 550.)
Consequently, where the trial court sees a cruel or unusual
punishment issue, but incorrectly concludes only the appellate
court may decide it, a remand for resentencing is appropriate.
(People v. Leigh, supra, 168 Cal.App.3d at p. 223.) Torres’s
counsel raised a Dillon cruel and unusual punishment challenge
based on Torres’s mental health condition. “Where a challenge
based on Dillon is raised in the trial court, it is an issue to be
decided by the trial judge.” (People v. Williams (1986) 180
Cal.App.3d 922, 926, italics added.) On remand for resentencing,
the trial court will have another opportunity to consider this
issue.
The trial court indicated that it believed the Legislature
was trying to send a message in terms of sentencing. But the role
of the trial court is not to send a message; instead, its role is to
achieve a just sentence for the defendant consistent with the
constitution. The trial court has a duty to never impose a
sentence it reasonably believes to be “absurd” as applied to the
particular defendant in the case before it. (People v. Baker (2018)
20 Cal.App.5th 711, 719 [“Where a trial court concludes that a
28
mandatory minimum sentence is grossly disproportionate,” it has
“the constitutional duty–not to impose [it]” (italics added)].)
DISPOSITION
The case is remanded for resentencing. The hearing will be
limited to sentencing only. In all other respects, the judgment is
affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
TANGEMAN, J.
29
Brian E. Hill, Judge
Superior Court County of Santa Barbara
______________________________
Jennifer A. Mannix, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Jaime L. Fuster and Joseph P. Lee, Deputy
Attorneys General, for Plaintiff and Respondent.
30