People v. Hill CA2/4 ( 2013 )

Filed 11/4/13 P. v. Hill CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B243919
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA078617)
v.
TONY LEE HILL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Steven R. Van Sicklen, Judge. Affirmed.
Michele A. Douglass, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Lawrence M. Daniels and
Connie H. Kan, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted defendant Tony Lee Hill of second degree robbery (Pen. Code,
§ 211)1 and found true allegations that defendant had suffered nine prior convictions of
serious or violent felonies or juvenile adjudications (§§ 667, subds. (b)-(i), 1170.12,
subds. (a)-(d)), and had served one prior prison term (§ 667.5, subd. (b)). The trial court
sentenced defendant to 25 years to life in state prison, striking the prior prison term
allegation.
During the course of the proceedings, the trial court declared a doubt as to
defendant’s competence to stand trial (§ 1368), pursuant to defense counsel’s request.
After reviewing psychiatric evaluations of defendant, it concluded he was competent.
Thereafter, defense counsel repeatedly declared a doubt as to defendant’s competence but
the trial court refused to hold a second competency hearing. On appeal, defendant argues
this constituted reversible error.
In addition, defendant requested pro. per. status on the day trial commenced. The
trial court denied that request as untimely. Defendant argues on appeal that the trial court
erred in finding the request untimely because defendant did not request a continuance.
We disagree with both contentions raised by defendant and therefore affirm the
judgment. In addition, we have reviewed at defendant’s request the sealed transcript of
the trial court proceedings on his Pitchess2 motion to determine whether the trial court
failed to provide him with all discoverable information. We find no error in the trial
court’s handling of those proceedings.
1 All further undesignated statutory references are to the Penal Code.
2 Pitchess v. Superior Court (1974) 11 Cal.3d 531.
2
FACTUAL BACKGROUND
We only briefly recount the facts underlying the offense at issue because the
details are not relevant to the issues on appeal. On July 14, 2010, defendant went into a
convenience store wearing a mask and pointing his finger inside his shirt to mimic a gun,
and told the clerk, Muzzamil Syed, “it’s a robbery.” When Syed objected, defendant
pulled off the mask and said he was kidding. On July 16, 2010, defendant returned to the
store and again simulated holding a gun under his shirt. Syed told defendant to leave, but
defendant said he was really going to rob him and cut the telephone cord. Syed used his
cell phone to call the police. Defendant pushed Syed and left with the cash register,
driving away in a black truck. The store’s surveillance camera recorded these events.
Officers from the Torrance Police Department responded to the scene. They
spotted defendant in his black truck nearby and followed him. Defendant pulled over, but
after additional units arrived he sped away, pursued by the police. He drove erratically
then crashed into a stop sign. Defendant ran from the scene but was soon apprehended.
He yelled, said he was sorry, and looked tired.
Defendant was placed in a patrol car. He said, “I did it. I’m going to jail for the
rest of my life.” The police officer turned on a recording device and recorded defendant
confessing to the crime. After returning to defendant’s truck, the officer removed
defendant from the car to be viewed by Syed, who had been brought to the scene.
Defendant said, “Why do this? I’m telling you I did it.” Syed identified defendant and
his truck. The cash register was recovered from defendant’s truck. Defendant did not
appear to be under the influence of drugs.
Defendant testified that on both July 14, 2010, and July 16, 2010, he was under the
influence of drugs. He knew what he was doing was wrong but he could not control
himself. He said he had been addicted to crack cocaine for three and one-half months
prior to the offense.
Dr. Rodica Predescu, a substance abuse expert, said cocaine affects a person for
about 15 minutes to an hour, initially making them feel euphoria, sometimes followed by
3
deep depression and self-destructive behavior. After listening to the audiotape of
defendant’s police interview, Dr. Predescu opined defendant sounded more depressed
than high on cocaine. She did not know whether defendant had ingested cocaine that
night.
PROCEDURAL BACKGROUND
At the arraignment on September 2, 2010, the court asked defense counsel if he
was declaring a doubt as to defendant’s competence. Counsel was not ready to do so but
had begun the process of having an expert appointed to examine defendant. A Marsden3
hearing followed in which defendant complained the public defender had not come to see
him or kept him informed. Counsel explained he had told defendant at the preliminary
hearing he wanted to appoint a psychiatrist to evaluate him for competency and regarding
issues relevant to his defense. The court denied the motion to replace counsel.
On September 28, 2010, defendant again complained about counsel, telling the
court that everything his attorney said was a lie and that he wanted to file charges against
him for obstruction of justice. Defendant’s Marsden motion was denied, although a new
public defender would be appointed because the prior one was leaving the office.
On December 15, 2010, another Marsden hearing was held. Defendant told the
court a 350-pound police officer who assaulted him had been present in the courtroom
during defendant’s last appearance, and sat at the counsel table with his back to
defendant. He believed his counsel knew the officer would be in court but failed to tell
him. Defendant told the court he had filed documents with the Court of Appeal and the
FBI alleging discrimination and racism, and an internal affairs complaint as well as a
civil action against the police officers who arrested him.
3 People v. Marsden (1970) 2 Cal.3d 118.
4
I. The Initial Competency Hearing
The court held another Marsden hearing at defendant’s behest on January 25,
2011. He told the court he had filed habeas corpus writs with this court and had
contacted the United States Attorney General regarding his case. The court denied the
request. On that same date, defense counsel declared a doubt as to defendant’s
competence. The court agreed and suspended the criminal proceedings. The court
appointed Dr. Douglas Allen for the defense and Dr. Suzanne Dupee for the prosecution
to examine defendant and report on his competency.
Dr. Allen reported on March 15, 2011, that defendant was not competent, based on
his inability to rationally assist in his defense. He believed defendant might suffer from a
mood disorder, possibly bipolar disorder with psychotic features, and that this interfered
with his reasoning abilities. Defendant demonstrated paranoid delusional thinking.
Dr. Allen felt defendant could be stabilized in a structured mental health facility with the
use of psychotropic medication.
Dr. Dupee reported on March 16, 2011, that defendant was competent to stand
trial. She found him to be pleasant, polite, and cooperative. His speech was normal in
rate and rhythm, and he established a good rapport with her. His thoughts were linear,
logical, and goal-directed. She found no evidence of psychosis, mania, or depressive,
anxious, obsessive, or compulsive symptoms. His insight and judgment were good, and
he was grossly cognitively intact.
The court appointed a third psychiatrist, Dr. Ronald Markman. Dr. Markman
reported that he found defendant competent to stand trial and “has the capacity to
cooperate with counsel in a rational manner in his defense, if he chooses to do so.”
Defendant was cooperative and responsive, oriented and alert, and gave relevant and
coherent responses. His memory and concentration were unimpaired, and his affect was
appropriate. His judgment was adequate, although he possessed limited insight into his
situation. He found no evidence of psychosis or thought disorder. He believed defendant
suffered from antisocial personality disorder and cocaine dependence. Dr. Markman
5
recommended outpatient treatment with a psychiatrist to deal with underlying psychiatric
issues and a 12-step substance abuse program.
The matter was heard on April 21, 2011. Having considered the three reports, the
trial court found defendant competent to stand trial and reinstated criminal proceedings. 4
A sixth Marsden hearing took place on June 2, 2011. Defendant said his attorney
was not bringing the relevant facts of his case to light and argued he should not be
charged with robbery, essentially saying he took money from the business, not from the
cashier. Defense counsel explained defendant was attempting to file a lawsuit against the
Torrance Police Department arising out of their mistreatment of him in this case, which
could support a motion for change of venue. She said she had discussed the nature of the
robbery charge with him. The trial court denied defendant’s Marsden motion.
Defendant, represented by a new public defender, brought a seventh unsuccessful
Marsden motion on July 25, 2011. He said he could not trust his attorney, who was
conspiring with the prosecutor and the court due to racism and to protect the four
arresting officers who had assaulted him. He stated in some detail the names of the
arresting officers and what transpired when he was arrested, again argued the facts of the
case did not support robbery, and objected to counsel’s handling of his Pitchess motion.
He believed the jury was going to be paid to convict him. He said he had contacted the
Court of Appeal, the Commission on Judicial Performance, the State Bar, the Department
of Justice, and the FBI to help him.
On August 10, 2011, defendant brought his eighth unsuccessful Marsden motion.
He told the court his attorney had intentionally started an argument with him during a
video conference. He sent a complaint to the United States Department of Justice and the
FBI requesting an investigation and demanding his attorney’s arrest based on her lying to
his family and obstructing justice. He claimed she had altered portions of the audio and
4 Defendant also brought a fifth Marsden motion, but rather than address his
attorney’s performance he complained that Dr. Markman had discriminated against him.
The motion was denied.
6
video on the videotape taken at the convenience store on July 16, 2010. Defense counsel
informed the court that it was extremely difficult to communicate with defendant.
II. The Second Declaration of Doubt Regarding Defendant’s Competency
On August 17, 2011, defense counsel declared a doubt as to defendant’s
competency, saying he was unable to assist in his defense. She had played an audio
recording for him and asked him numerous times to stop talking to himself and listen to
the recording, but he had difficulty focusing. Counsel restarted the recording several
times until finally defendant said he did not need to hear any more, and refused to
communicate further. Defendant became fixated on irrelevant points and could not be
persuaded to move on. Counsel expressed concern at the paranoia defendant exhibited.
He believed she had altered the videotapes and could not be dissuaded from that belief.
The court declared a doubt as to defendant’s competency and suspended the criminal
proceedings. The court appointed Dr. Kaushal Sharma for the prosecution and
Dr. Gordon Plotkin for the defense to examine defendant and report on his competency.
On January 4, 2012, defense counsel filed a motion to disqualify Judge James R.
Brandlin (Code Civ. Proc., § 170.6), and the case was transferred to Judge Victor L.
Wright.
On February 10, 2012, the prosecution filed a motion seeking reinstatement of the
criminal proceedings. The prosecutor argued that defendant had failed to provide
sufficient evidence that a substantial change in his mental state had occurred and he was
therefore not entitled to a second competency hearing.
The trial court held a hearing on March 20, 2012, to determine whether there had
been changes in defendant’s circumstances to justify holding a second section 1368
hearing to determine competency. Dr. Kaushal Sharma had submitted a report dated
September 12, 2011, concluding that defendant was competent. He opined defendant
was suffering from “institutional paranoia”—Dr. Sharma’s own descriptive term and not
a diagnosis—indicating defendant did not trust anyone in the legal system, but that he
was not suffering from an identifiable mental disorder. Rather, Dr. Sharma stated that
7
defendant’s psychotic-type symptoms were exemplary of a longstanding antisocial
personality disorder, making him likely to be disruptive and demanding in court, and to
make farfetched requests and bizarre comments when his requests were not met.
Defendant insisted he was unjustly kept in jail and instead he should be in a drug
diversion program. Defendant told Dr. Sharma he had won $100,000 in a lawsuit for
false imprisonment but had used most of the money on drugs. His success in that lawsuit
amplified his sense that everyone else is wrong and he is right, and if they disagree with
him he wants to sue them. Dr. Sharma predicted defendant could be boisterous, loud,
demanding, and intrusive, and blame everyone else for his misfortunes, because he
perceives a sense of entitlement when things are not going his way.
At the hearing, the prosecutor asserted that defendant was “playing crazy” in order
to delay the proceedings. Defendant had been recorded stating to a friend during a
telephone call, “No, no, okay, okay, they want me to play crazy because they mad I been
filing all these complaints with the FBI. They said if I do that, I do three years in state
hospital or in Patton State Hospital. I can be released and all the charges would be
dismissed. Do you want me to do that?”
Dr. Plotkin, who evaluated defendant on February 2, 2011, September 26, 2011,
and March 19, 2012, testified that defendant understood the nature of the proceedings
against him, and further understood what would happen if he were found to be
incompetent. Dr. Plotkin nonetheless found defendant to be incompetent because
defendant was unable to cooperate with his attorney. Defendant exhibited prominent
paranoid delusions that his attorney was conspiring against him. In his report dated
September 30, 2011, Dr. Plotkin stated defendant had irritable affect and paranoia that
appeared to be an endogenous illness such as schizophrenia. At the hearing, Dr. Plotkin
stated that defendant continued to suffer from the same disorder as previously diagnosed,
but said that “its volume ha[d] ra[t]cheted up a little bit.” Dr. Plotkin noted that the
statement defendant made about “play[ing] crazy” over the telephone indicated he
understood what would happen if he were found incompetent, but opined that this did not
8
signify anything regarding his delusions, the existence of which was the reason
Dr. Plotkin believed he was incompetent.
The trial court took the matter under submission. Defendant addressed the court
on April 18, 2012, making a ninth unsuccessful Marsden request to replace his counsel
and engaging in a lengthy description of his belief that his counsel was conspiring against
him with the prosecutor and the police department, and had fabricated and destroyed
videotaped evidence. Counsel provided the court with a similarly comprehensive
recitation of the facts regarding her representation of defendant.
On April 18, 2012, the court issued a statement of decision denying the defense
request for a new section 1368 hearing. The court found there was no change in
circumstances to justify holding new section 1368 proceedings. The court indicated it
had reviewed the court file, Dr. Plotkin’s testimony and reports, and the reports submitted
by Drs. Sharma, Markman, Allen, and Dupee. The court noted its ruling was also based
on its observations of defendant, as well as the court’s experience as a judicial officer and
working in the Los Angeles County Jail in the past. The court found that defendant
understood the nature of the proceedings and could cooperate with counsel. However,
defendant “makes a concerted effort to display a disruptive attitude, and disrespectful
manners toward the Court, his counsel, and the prosecution, particularly when [he] does
not obtain his desired outcome at any stage.” He “excels at acting out, at being
disruptive, and at being uncooperative when he cannot control a situation.” The court
concluded his behavior was not due to a psychological disorder but instead stemmed
from his antisocial background and “from a sense o[f] entitlement.” The court ordered
the criminal proceedings reinstated.
III. The Pretrial Conference
On July 13, 2012, the matter was called for a pretrial hearing. Defense counsel
informed the court that a psychiatrist she had enlisted to assist in preparation of the
defense case had elected to perform a competency evaluation on defendant, and found
him to be psychotic. Defense counsel also told the court that she had visited defendant
9
recently and he had refused to speak to her. She argued this represented a change in
circumstances because previously he would speak to her. Specifically, defense counsel
had requested the appointment of Dr. Jack Rothberg to address defense issues but upon
meeting defendant Dr. Rothberg decided to perform a competency evaluation.
Dr. Rothberg concluded defendant was psychotic, incompetent, and in need of
medication. The court indicated it wanted to review Dr. Rothberg’s report. Defendant
interrupted and asked for a change of venue. The court replied that this request was
further evidence that defendant was attempting to manipulate the system. When
defendant persisted in speaking after the court asked him to stop, the court removed
defendant from the courtroom. Defendant said, “I can’t believe you, a Black man. Wow.
Working for the KKK.”
On July 24, 2012, the court held another hearing to consider Dr. Rothberg’s report.
Dr. Rothberg indicated he found it “impossible to discuss the facts of the case” with
defendant, as defendant kept insisting that he should be exonerated because he was on
crack cocaine and therefore not responsible for his actions. Defendant was unable to
engage in rational discussion, and was paranoid and delusional. His general intellectual
functioning was grossly impaired by psychosis, and Dr. Rothberg saw evidence of a
thought disorder. Dr. Rothberg believed defendant would likely be rendered competent
to stand trial if treated with anti-psychotic medication but it would likely have to be
administered against defendant’s will because he lacked the capacity to make a decision
about medication. After the court reviewed Dr. Rothberg’s report, defense counsel asked
the court to declare a doubt as to defendant’s competence. The court refused, finding that
defendant was attempting to manipulate the system and that he was capable of
cooperating with counsel if he chose to do so.
On July 30, 2012, defense counsel stated for the record her continuing belief that
defendant was incompetent. The court deemed the defense ready for trial and proceeded.
The court held yet another Marsden hearing, during which defendant objected to his
counsel’s failure to call a particular doctor as an expert witness on his behalf. The court
responded that it would not permit defendant to hijack the court proceedings. It
10
encouraged defendant to choose to cooperate with his counsel, and denied the Marsden
motion.
IV. The Trial
The matter was transferred to Judge Steven Van Sicklen’s courtroom for trial on
July 31, 2012. Defense counsel reiterated her belief that defendant was incompetent to
stand trial. The court noted that defendant’s competence had been recently adjudicated
and declined to revisit the issue. Defendant requested another Marsden hearing,
reiterating his claims of conspiracy, destruction and fabrication of evidence, and police
misconduct. The court denied the motion.
Later that day, during an evidentiary hearing, defendant disagreed with his
counsel’s tactics and said she was lying. He then asked to represent himself, which
request was denied as untimely. Shortly thereafter he repeated his request, and the court
again denied it.
Trial proceeded. On August 8, 2012, defendant again asked to represent himself.
The court again denied the request as untimely. Defense counsel reiterated her belief that
defendant was incompetent to stand trial. The trial court disagreed, observing that
defendant knew exactly what he was doing. Prior to closing arguments that day,
defendant told the jury that the preliminary hearing transcript showed the victim knew
defendant was under the influence of cocaine during the robbery, and that his attorney
was conspiring against him. The court excluded defendant from the courtroom. Defense
counsel moved to have defendant declared incompetent, and also for a mistrial. The trial
court denied both motions, stating that defendant’s outburst was calculated and
demonstrated that he was quite competent. Defendant refused to return to the courtroom.
During the sentencing hearing, defense counsel once again argued defendant’s
incompetency. However, the trial court found that defendant had “willfully chose[n] to
be noncooperative.”
This appeal from the judgment of conviction followed.
11
DISCUSSION
I. The Court’s Refusal to Hold a Second Competency Hearing
Due process prohibits trying or convicting a defendant who is mentally
incompetent. (People v. Rogers (2006) 39 Cal.4th 826, 846.) “A defendant is mentally
incompetent . . . 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).) “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).)
While a defendant is presumed mentally competent (§ 1369, subd. (f)), due
process requires that the trial court conduct a full competency hearing when the accused
presents substantial evidence of incompetence. (People v. Jones (1991) 53 Cal.3d 1115,
1152 (Jones).) “Evidence is ‘substantial’ if it raises a reasonable doubt about the
defendant’s competency to stand trial.” (Moore v. United States (9th Cir. 1972) 464 F.2d
663, 666.) “At the request of the defendant or his or her counsel or upon its own motion,
the court shall recess the proceedings for as long as may be reasonably necessary to
permit counsel to confer with the defendant and to form an opinion as to the mental
competence of the defendant at that point in time.” (§ 1368, subd. (a).)
However, “[w]hen a competency hearing has already been held and the defendant
has been found competent to stand trial, . . . a trial court need not suspend proceedings to
conduct a second competency hearing unless it ‘is presented with a substantial change of
circumstances or with new evidence’ casting a serious doubt on the validity of that
finding. [Citations.]” (Jones, supra, 53 Cal.3d at p. 1153.) “[O]nce a defendant has
been found to be competent, even bizarre statements and actions are not enough to
require a further inquiry.” (People v. Marks (2003) 31 Cal.4th 197, 220; see also People
v. Ramos (2004) 34 Cal.4th 494, 508.)
12
The question here is whether a substantial change of circumstances or new
evidence came to light after the first competency hearing in March 2011, such that the
trial court abused its discretion by refusing to hold a second competency hearing. We
note that although in March 2012 Judge Wright revisited Judge Brandlin’s prior decision
(made in Aug. 2011) to hold a second competency hearing, defendant does not argue that
this was error. He does not assign as error Judge Wright’s conclusion on April 18, 2012,
that there was no change in circumstances to justify holding new section 1368
proceedings. Rather, he argues that when defense counsel presented new evidence
(Dr. Rothberg’s evaluation) and again declared a doubt, and the court held a hearing to
consider the issue on July 24, 2012, the ensuing July 30, 2012 order by Judge Wright
concluding there was no substantial change in circumstances to justify holding a second
competency hearing constituted an abuse of discretion. Defendant contends that Judge
Van Sicklen’s refusal to reconsider the issue when it was assigned to his court for trial the
following day also was error.
In considering whether there was evidence of a substantial change of
circumstances or new evidence which cast a serious doubt on the validity of the trial
court’s initial finding of competence, the trial court considered Dr. Rothberg’s report,
defense counsel’s claim that defendant entirely refused to communicate with her, the
court file, all of the previous reports, defendant’s statement about “play[ing] crazy,” the
court’s own prior experience with competency matters, and its personal observations of
defendant. Regarding the latter, the trial court had observed defendant’s behavior on
numerous occasions. Defendant had addressed the court directly during 10 Marsden
motions, five of which took place before the prior trial judge (Judge Brandlin) found
defendant competent to stand trial, two of which occurred before defense counsel filed a
motion to disqualify Judge Brandlin, and two of which occurred before Judge Wright
determined that a change in circumstances or new evidence had not been presented to
justify holding a second competency hearing. Thus, the court had ample opportunity to
observe and interact with defendant, and appropriately took its personal observations into
13
account in determining whether there had been a significant change in the defendant’s
mental state. (Jones, supra, 53 Cal.3d at p. 1153.)
The court fully considered the written report by Dr. Rothberg in which he found
defendant to be psychotic, incompetent, in need of medication, and a danger to himself
because his behavior was likely to be misinterpreted by others who would in turn react
against him. Dr. Rothberg indicated he found it “impossible to discuss the facts of the
case” with defendant, as defendant kept insisting that he should be exonerated because he
was on crack cocaine and therefore not responsible for his actions. Defendant was unable
to engage in rational discussion, and was paranoid and delusional. His general
intellectual functioning was grossly impaired by psychosis, and Dr. Rothberg saw
evidence of a thought disorder. Dr. Rothberg believed defendant would likely be
rendered competent to stand trial if treated with anti-psychotic medication.
These same things were said of defendant previously, that he was delusional,
paranoid, and unable to assist in his defense. Dr. Plotkin had similarly found in March
2011 that defendant had a major mental disorder and in March 2012 that defendant
suffered from prominent paranoid delusions, possibly due to schizophrenia. In his report
dated September 30, 2011, Dr. Plotkin had stated defendant had irritable affect and
paranoia that appeared to be an endogenous illness such as schizophrenia. At the hearing
in March 2012, Dr. Plotkin stated that defendant continued to suffer from the same
disorder as previously diagnosed, but said that “its volume ha[d] ra[t]cheted up a little
bit.”
Although defendant argues on appeal that Dr. Rothberg’s evaluation demonstrated
that defendant’s condition had deteriorated significantly, we find no abuse of discretion
in the trial court’s disagreement with that characterization of the report and conclusion
that a substantial change in circumstances had not been shown. Defendant had grown
increasingly more uncooperative and irritable as trial approached, but that is readily
explained by the fact that his attempts to manipulate the proceedings were failing and he
was on the verge of standing trial. He continued to insist that he should be exonerated
because he was on crack cocaine when he committed the offense, refusing to accept that
14
this was not a relevant defense. He persisted in accusing the legal system of conspiring
against him. As Dr. Sharma stated, he was certainly exhibiting institutional paranoia and
distrust of the legal system, but that his psychotic-type symptoms were exemplary of a
longstanding antisocial personality disorder and sense of entitlement, not due to an
identifiable mental disorder. Dr. Sharma presciently stated that defendant’s antisocial
behavior made him likely to be disruptive and demanding in court, and to make
farfetched requests and bizarre comments when his requests were not met.
Agreeing with Dr. Sharma’s evaluation of defendant, the court refused to declare a
doubt as to defendant’s competency, finding that defendant was attempting to manipulate
the system and that he was capable of cooperating with counsel if he chose to do so. The
court noted that defendant was cooperative when he got what he wanted and
uncooperative when he did not. The trial court was in the best position to judge
defendant’s conduct and to evaluate whether his conduct had changed over time, and we
will not interfere with the court’s decision where no abuse of discretion has been shown.
(People v. Danielson (1992) 3 Cal.4th 691, 727, disapproved on another ground in Price
v. Superior Court (2001) 25 Cal.4th 1046.)
Defendant argues that this case is similar to People v. Melissakis (1976) 56
Cal.App.3d 52 (Melissakis), in which the appellate court concluded the trial court abused
its discretion when it found no substantial change in circumstances to justify holding a
second competency hearing. We conclude, however, that this case is readily
distinguishable from Melissakis.
In Melissakis, prior to trial defendant had undergone examinations by two
psychiatrists and was found sane. Several months later the trial court ordered the doctors
to reexamine defendant to determine his present sanity to stand trial. One doctor found
he was “laboring under a ‘delusional system’ and expressed the opinion that appellant
was not capable of trusting another person sufficiently to present an adequate defense.”
(Melissakis, supra, 56 Cal.App.3d at p. 56.) The trial court ordered a hearing and
appointed a third doctor to examine appellant; the latter found no evidence of any
significant mental illness. The court found appellant sane and the matter proceeded to
15
trial. On the third day of trial appellant requested the court to subpoena for his defense
two issues of Playboy magazine, certain newspaper articles, and various individuals; he
informed the court that he wanted to prove that certain organizations had put him in fear
for his life and that this in turn resulted in the incident for which he was standing trial.
He also said that a women’s liberation organization was involved with the military in
conspiring against him. Appellant’s trial counsel requested the court reconsider
appellant’s present sanity and his ability to stand trial, but the court denied the request
and ordered the trial to continue. (Id. at p. 57.) Appellant then testified that a year earlier
he became suspicious that a conspiracy was being perpetrated against him by various
organizations (narcotics agents, the FBI, military intelligence, a women’s liberation
organization, police officers, and various workmen), that he was under constant
surveillance, and that these groups were attempting to frighten him and physically attack
him. A jury found him guilty of assault with a deadly weapon. Thereafter, during a
hearing on appellant’s sanity, the two doctors who previously found him sane recanted
their earlier beliefs that appellant had no discernable psychiatric problem. They agreed
with the third doctor that appellant suffered from paranoid schizophrenia. (Id. at p. 59.)
Nonetheless, the jury found appellant sane at the time of the offense and found him
guilty. He appealed, arguing that the judge did not comply with section 1368 when it
became apparent during trial that he likely was incapable of understanding the nature of
the proceedings or unable to cooperate with his counsel in presenting a rational defense.
(Ibid.)
In reversing the judgment, the appellate court stated that when the trial court found
appellant sane, there also was substantial evidence to support the contrary conclusion,
and the factors which came to light at the beginning of and during trial “completely
undermined the medical opinions upon which the present sanity finding was predicated.”
(Melissakis, supra, 56 Cal.App.3d at p. 60.) “[A] trial judge may not avoid his own
responsibility to make proper inquiry regarding a defendant’s capacity to stand trial or to
understand the nature of the sentencing procedure by relying solely upon a pretrial
decision or pretrial psychiatric reports where, during the trial or prior to the sentencing,
16
he is presented with a substantial change of circumstances or with new evidence which
casts a serious doubt upon the validity of the pretrial finding of present sanity. (Cf.
People v. Munoz (1974) 41 Cal.App.3d 62, 66; In re Miller (1973) 33 Cal.App.3d 1005,
1021; People v. Groce (1971) 18 Cal.App.3d 292, 296-297.)” (Melissakis, supra, at
p. 62.)
The appellate court stressed that it was not second-guessing the trial judge: “If the
trial judge had conducted a hearing on the present sanity issue, and on the basis of
medical testimony or other evidence presented at the hearing had determined that
appellant presently was sane, we would not have disturbed his decision. Here the trial
judge made no inquiry of any kind into appellant’s mental capacity to stand trial or to
understand the sentencing procedure, despite the fact that there were ample reasons, in
addition to appellant’s bizarre testimony, for renewing the inquiry. For example, even
the doctors who testified for the People admitted that they were not aware that appellant
had any significant mental illness or that he was suffering from an insane delusion until
they heard him testify; yet, they were not asked whether the newly gained information
had any effect on their earlier opinions that appellant was able to understand the
proceedings in which he was involved and to cooperate with his counsel in the
presentation of a rational defense. It is this failure to perform an important judicial
function, not what may have resulted from a second hearing, that mandates the reversal.”
(Melissakis, supra, 56 Cal.App.3d at p. 62.)
In distinct contrast, in the case before us Dr. Rothberg’s report essentially
reiterated what Dr. Plotkin had previously found. Defendant continued to act as he had
before, making the same accusations that his attorney was conspiring against him and had
altered evidence, and arguing that he should be exonerated because he was high on
cocaine when he committed the offense. This was nothing new. He chose to be
obstreperous rather than cooperate with his attorney, but that too was precisely the same
behavior he had previously exhibited. Significantly, unlike in Melissakis, none of the
experts who determined defendant was competent to stand trial changed his opinion.
17
We conclude defendant failed to provide the court with substantial evidence of a
substantial change in circumstances or new evidence that would cast a serious doubt on
the validity of the previous finding of competence. We therefore find no error in either
Judge Wright’s or Judge Van Sicklen’s refusal to hold a second competency hearing.
II. Denial of Faretta Motions
Defendant next contends that the trial court erred when it denied his request, made
after the start of trial, to represent himself. He argues that because the request was not
accompanied by a request for a continuance, the court erred in refusing to allow it. We
disagree.
On July 31, 2012, following a Marsden hearing and just prior to jury selection on
day eight of ten, defendant said, “I would like to go pro per, Your Honor.” The court
denied the motion as untimely. Shortly thereafter he repeated his request, and the court
again denied it. Defendant again asked to represent himself on August 8, 2012, and the
court again denied the request as untimely.
In Faretta v. California (1975) 422 U.S. 806, 836 (Faretta), the United States
Supreme Court held that a defendant in a state criminal trial has a federal constitutional
right to represent himself or herself without counsel if he or she voluntarily and
intelligently elects to do so. As relevant here, the California Supreme Court has
described the right to self-representation under Faretta as conditional: “A trial court
must grant a defendant’s request for self-representation if the defendant unequivocally
asserts that right within a reasonable time prior to the commencement of trial, and makes
his request voluntarily, knowingly, and intelligently. [Citations.] As the high court has
stated, however, ‘Faretta itself and later cases have made clear that the right of self-
representation is not absolute.’ [Citations.]” (People v. Lynch (2010) 50 Cal.4th 693,
721 (Lynch), overruled on another ground in People v. McKinnon (2011) 52 Cal.4th 610,
636-638.) A Faretta motion thus may be denied if the defendant is not competent to
represent himself or herself, is disruptive or engages in misconduct that seriously
threatens the integrity of the trial, or if the motion is made for the purpose of delay.
18
(Lynch, supra, at pp. 721-722.) Likewise, our Supreme Court has long held that a self-
representation motion may be denied if it is untimely. (Id. at p. 722.)
“Under [People v. Windham (1977) 19 Cal.3d 121, 127-128 (Windham)], a motion
is timely if made ‘a reasonable time prior to the commencement of trial.’ [Citation.]”
(Lynch, supra, 50 Cal.4th at p. 722.) Neither the United States Supreme Court nor our
Supreme Court has articulated a bright line rule with respect to the timeliness of a Faretta
motion. In general, courts have held that Faretta motions made on the eve of trial are
untimely. (Id. at p. 723, citing cases.) Conversely, such motions made months before
trial have been considered timely. (Ibid.) “[O]utside these two extreme time periods,
pertinent considerations may extend beyond a mere counting of the days between the
motion and the scheduled trial date.” (Ibid.) The factors to be considered by the court in
assessing such requests made after the commencement of trial are “the quality of
counsel’s representation of the defendant, the defendant’s prior proclivity to substitute
counsel, the reasons for the request, the length and stage of the proceedings, and the
disruption or delay which might reasonably be expected to follow the granting of such a
motion.” (Windham, supra, at p. 128; Lynch, supra, at p. 722, fn. 10.)
Moreover, “a trial court may consider the totality of the circumstances in
determining whether a defendant’s pretrial motion for self-representation is timely. Thus,
a trial court properly considers not only the time between the motion and the scheduled
trial date, but also such factors as whether trial counsel is ready to proceed to trial, the
number of witnesses and the reluctance or availability of crucial trial witnesses, the
complexity of the case, any ongoing pretrial proceedings, and whether the defendant had
earlier opportunities to assert his right of self-representation.” (Lynch, supra, 50 Cal.4th
at p. 726.) “An analysis based on these considerations is in accord with the purpose of
the timeliness requirement, which is ‘to prevent the defendant from misusing the motion
to unjustifiably delay trial or obstruct the orderly administration of justice.’ [Citation.]”
(Id. at p. 724.)
The trial court was not required to explicitly cite the Windham factors or state its
reasons for denying an untimely request for self-representation. (Windham, supra, 19
19
Cal.3d at p. 129, fn. 6; People v. Bradford (2010) 187 Cal.App.4th 1345, 1354.) A trial
court’s denial of an untimely Faretta motion is properly affirmed if substantial evidence
supports the inference that the court had the Windham factors in mind when it ruled.
(Bradford, supra, at p. 1354.) Although defendant did not explicitly request a
continuance, the court was nonetheless entitled to consider the Windham factors. (Id. at
1355.)
Here, we conclude that the trial court properly rejected defendant’s untimely
request to represent himself for two primary reasons: (1) the trial court had reason to
believe the request was made by defendant in order to obstruct the orderly administration
of justice, and given defendant’s behavior that would be the inevitable outcome of
granting his request for self-representation, and (2) the request was equivocal in that the
court had reason to believe it was made solely for purposes of delay.
Implicit in the trial court’s denial of the request as untimely is the fact that
significant disruption might reasonably have been expected to follow the granting of
defendant’s motion. (Windham, supra, 19 Cal.3d at p. 128; Lynch, supra, 50 Cal.4th at
p. 722, fn. 10.) Defendant had been continuously disruptive and refused to follow the
basic rules of courtroom etiquette. Had he been allowed to take over his own
representation, the court undoubtedly believed that disruption of the proceedings was
certain to follow. Indeed, delay was likely to follow as well because defendant had
repeatedly wanted a Dr. Knapke to appear as his expert witness because defendant
believed that doctor would testify that the cocaine made defendant commit the charged
offense; thus, defendant would almost certainly have asked for a continuance to secure
that doctor’s presence.
Defendant had many previous opportunities to request leave to represent himself,
having been represented by three different public defenders, and having addressed the
court during numerous Marsden motions. Despite the numerous denials of his previous
Marsden motions and defendant’s vociferous distrust of his counsel, he never asked to
represent himself until faced with the immediate prospect of going to trial. While he did
not ask for a continuance, he also had not shown that he was prepared to proceed to trial
20
immediately. (Cf. People v. Tyner (1977) 76 Cal.App.3d 352 [appellate court found
denial of request for self-representation on eve of trial was erroneous where no indication
of a troubled history likely to lead to disruption of court proceedings, and defendant
demonstrated preparedness to proceed immediately by having written out 50 questions
with which to cross-examine witnesses].) It was therefore reasonable for the court to
conclude that defendant’s Faretta motion was made in response to the denial of his latest
Marsden motion and because defendant was faced with the imminent start of trial, rather
than because of a genuine desire to serve as his own attorney. This too was a proper
reason to deny the motion because such a request for self-representation was “not
unequivocal.” (People v. Scott (2001) 91 Cal.App.4th 1197, 1205-1206.) Defendant was
seeking to avoid or at least delay the inevitable. We find no error.
III. The Pitchess Motion
Defendant requests that we review the in camera proceedings of his Pitchess
motion to determine whether the trial court properly ruled on the discoverability of
information contained in the personnel and administrative files of the arresting officers,
Officers Moreno and Charley. We review the trial court’s ruling on the Pitchess motion
for abuse of discretion. (People v. Hughes (2002) 27 Cal.4th 287, 330.) The trial court
conducted an in camera hearing at which the custodian of records was placed under oath
and presented the personnel files of Officers Moreno and Charley. The court reviewed
the potentially responsive documents outside the presence of all persons except the
custodian and his counsel. The trial court made the appropriate inquiries concerning
whether the custodian had produced all potentially responsive documents, and described
thoroughly, in the sealed transcript of the hearing, the documents produced. (People v.
Mooc (2001) 26 Cal.4th 1216, 1229.) We have reviewed the sealed record of the in
camera proceeding and conclude the trial court appropriately exercised its discretion in
finding discoverable certain documents from the personnel records of each officer, and
otherwise concluding that there was no further relevant, discoverable material to be
disclosed. We find no error in the trial court’s ruling.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA, J.
We concur:
EPSTEIN, P. J.
MANELLA, J.
22