People v. Hatcher CA4/1 ( 2020 )

Filed 10/8/20 P. v. Hatcher CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D076078
Plaintiff and Respondent,
v.
(Super. Ct. No. SCN392247)
ROBERT HATCHER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
David G. Brown, Judge. Affirmed.
Kelly E. DuFord, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha
Cortina and Quisteen S. Shum, Deputy Attorneys General, for Plaintiff and
Respondent.
Defendant Robert Hatcher was charged with a single count of robbery
(Pen. Code, § 211)1 after he pushed, kneed, and kicked a thrift store employee
who tried unsuccessfully to stop Hatcher from stealing merchandise.
Hatcher represented himself throughout two trials. The jury at the first trial
was unable to reach a verdict, but the jury at the second trial found him
guilty. The trial court sentenced Hatcher to the upper term of five years.
Hatcher raises several issues on appeal. First, he contends the trial
court erred by failing to appoint counsel or conduct a competency hearing
after doubt arose as to his mental competence. Although the appellate record
suggests Hatcher has mental health issues that gave the trial court some
concern, the record does not indicate those issues raised a doubt sufficient to
compel the court to investigate Hatcher’s competence.
Second, Hatcher contends the trial court violated his right to counsel by
denying a posttrial motion to continue the sentencing hearing so that he
could retain counsel for posttrial proceedings, and by failing to appoint
counsel when a doubt arose as to his mental competence. This challenge fails
because the motion was not an unequivocal request by Hatcher to revoke his
self-represented status and, even if it were, the court did not abuse its
discretion by denying the belated motion. Moreover, the competency-based
claim fails in this context primarily for the same reasons as his general
competency-based challenge.
Third, Hatcher asks us to remand the case so the trial court can
consider whether to grant him pretrial mental health diversion under section
1001.36, which took effect months before Hatcher was charged. By failing to
request pretrial diversion in the trial court, Hatcher forfeited this issue on
1 Further undesignated statutory references are to the Penal Code.
2
appeal. And, in any event, the trial court’s comments before and during
sentencing indicate a remand would be futile.
Finally, Hatcher contends the trial court prevented or dissuaded him
from presenting evidence regarding his mental health. The appellate record
contradicts this claim.
Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Hatcher was charged by complaint with a single count of robbery based
on the theory he peaceably took possession of merchandise in a thrift store,
and then used force or fear to retain the merchandise when confronted by a
store employee. Hatcher represented himself in the trial court.
Prosecution Evidence
On August 16, 2018, Hatcher entered a thrift store in Carlsbad that
raises money for domestic-violence victims and the homeless. Sonia M. was
working as a sales associate, Rosanne O. was managing the store, and Lisa
M. was volunteering. Sonia and Rosanne had seen Hatcher shoplift from the
store on several prior occasions.
On this occasion, Sonia reported to Rosanne that Hatcher entered the
store and was holding a voucher, which churches commonly distribute to the
homeless. Vouchers are only issued in the amount of $10. Rosanne told
Sonia to “just keep an eye on” Hatcher. Sonia then observed Hatcher put
several pieces of clothing in a suitcase, which was also for sale. At Rosanne’s
direction, Sonia asked Hatcher if he would like her to hold the merchandise
for him behind the counter as he shopped. Hatcher declined, and Sonia
continued to watch him.
Hatcher grabbed two shirts from inside the store, then attempted to
walk out without paying. He did not stop at the sales counter or leave the
3
$10 voucher. Sonia tried to stop Hatcher by closing and locking the front
door, but she was too nervous to get the key out of her purse. Hatcher called
Sonia a “[s]hort, fat [racial epithet]”; pushed her shoulder; kneed her thigh;
and kicked her ankle. Sonia fell down, and her knee immediately turned
purple and became swollen. She screamed for help.
Rosanne and Lisa both responded. Lisa positioned herself between
Hatcher and Sonia, and took back one shirt from him. Hatcher told the
workers, “Fuck all you guys,” and left the store with the suitcase full of
merchandise, all of which was worth about $40. Lisa called 911, gave the
phone to Rosanne, then followed Hatcher outside to see where he went.
Rosanne also went outside and warned Hatcher she was calling the police.
Hatcher responded by giving her “the middle finger” and “walking like not a
care in the world.” Hatcher managed to get away.
About five months later, police arrested Hatcher on an arrest warrant
for robbery stemming from the thrift store incident.
At trial, the prosecution introduced records showing Hatcher had
pleaded guilty to larceny and shoplifting after he returned to the thrift store
in December 2018 (about four months after the alleged robbery) and stole
more merchandise. The prosecutor also cross-examined Hatcher about
punching a hardware store employee in the face when the employee tried to
stop Hatcher from stealing batteries.
Defense Evidence
Hatcher testified as the lone defense witness, denying he used force or
fear to take the merchandise. Instead, he maintained he had a voucher that
entitled him to an entire outfit (not merely for $10); that he tendered it to
Sonia before leaving the store; that Sonia said it was not enough to cover the
cost of the merchandise; so he left the voucher on the counter and took the
4
merchandise. Hatcher admitted he became “a little upset” because, although
Sonia sometimes used her own money when a homeless customer’s voucher
was insufficient to cover the cost of merchandise, she refused to do so for
Hatcher (because he had previously shoplifted from the store).2 Hatcher
denied ever touching Sonia, and claimed she must have mistaken him for
someone else who had.
Verdict and Sentencing
After a first trial, the trial court declared a mistrial when the jury
deadlocked 11 to one in favor of guilty.
After a second trial, the jury deliberated for just 17 minutes before
returning a guilty verdict.
Based on Hatcher’s extensive criminal record, the increasingly violent
nature of his offenses, and the disparity in size between Hatcher and Sonia,
the court followed the probation officer’s recommendation and sentenced
Hatcher to the upper term of five years in prison. The court also ordered
Hatcher to pay $1,763 in fines, fees, and assessments; and $40 in restitution
to the thrift store.
DISCUSSION
I. Mental Competency
If “a doubt arises in the mind of [a] judge as to the mental competence”
of a self-represented defendant, the judge must state that doubt on the record
and appoint counsel. (§ 1368, subd. (a).) If counsel or the court believe the
defendant is mentally incompetent, the court must suspend criminal
proceedings and conduct a competency hearing. (§ 1368, subds. (b)-(c).)
2 Hatcher also testified he became angry because he has bipolar disorder,
but the trial court struck this testimony as nonresponsive.
5
Hatcher contends the trial court violated his due process rights by failing to
appoint counsel and conduct a competency hearing even after (1) he moved to
continue the sentencing hearing to have counsel appointed “because of [his]
mental state at the time”; and (2) his conduct during trial caused the court to
“harbor[] a doubt as to [his] competency.” We are not persuaded. Hatcher’s
motion was not an unequivocal request to revoke his self-represented status
for purposes of pursuing a competency hearing, and his conduct during trial
did not raise a sufficient doubt about his competence so as to compel the court
to appoint counsel or conduct a competency hearing.
A. Background
1. Self-Representation
Following his arrest in January 2019, Hatcher was arraigned, the court
appointed the public defender’s office to represent him, and he pleaded not
guilty. He remained in custody on $100,000 bail.
Within 10 days of being arraigned, Hatcher moved to represent himself.
The trial court’s minutes reflect that Hatcher signed and filed a
“Faretta/Lopez Waiver”3 indicating he understood the rights he was giving
up—and the risks he was taking on—by choosing to represent himself. The
court (Judge Goldstein) granted the motion, relieved the public defender, and
appointed the Office of Assigned Counsel (OAC) to act as Hatcher’s legal
runner and to provide ancillary services.4
3 Faretta v. California (1975) 422 U.S. 806, 819; People v. Lopez (1977)
71 Cal.App.3d 568, 572.
4 Neither the “Faretta/Lopez Waiver” nor a reporter’s transcript of these
proceedings are in the appellate record.
6
2. Preliminary Hearing
Hatcher’s preliminary hearing was initially assigned to Judge Elias,
but Hatcher challenged the judge (Code Civ. Proc., § 170.6), and the matter
was reassigned to Judge Washington.
At the outset of the preliminary hearing, the court noted it had received
via email from OAC a document that was “labeled [a] motion to dismiss,” but
which really “seem[ed] to be . . . a request to subpoena” two psychotherapists.
As to the procedure of Hatcher’s “motion,” the court explained that because it
was insufficient to merely file subpoenas with the court—he had to actually
serve them on the subpoenaed parties—the court could not “take any
action[]”on the motion. The court advised Hatcher to seek assistance from
OAC if he wanted to serve subpoenas in the future.
Regarding the subject of Hatcher’s subpoenas, the court expressed
concern that Hatcher was suggesting there was “something about [his]
mental condition” that he believed precluded liability. Hatcher replied, “That
is not true, your Honor.” After noting the obvious tension between self-
representation and pursuit of an insanity defense, the court confirmed it did
not “find anything about [Hatcher’s] mental condition as [he] appear[ed] in
court now that suggests to [the court] that [he is] incapable of representing
[him]self.” The court also admonished Hatcher that it may be “self-defeating”
to pursue a mental health-based defense: “The fact that you’re saying I am
capable enough to know that there is a mental health problem may suggest to
some other judge that you don’t have one because you knew enough to try to
raise it.”
During the ensuing preliminary hearing, Hatcher cross-examined all
the prosecution witnesses and testified in his own defense. The court held
Hatcher to answer.
7
3. Trial Readiness Conferences
In advance of a March 2019 trial readiness conference, Hatcher filed 16
motions. Some of the motions related to (1) evidence Hatcher asserted would
support his claim that he had left a voucher on the thrift store counter the
day of the incident; (2) alleged deficiencies in a photo lineup the police had
conducted; (3) impeachment or exclusion of prosecution witnesses based on
conflicts in their preliminary hearing testimony and a recording of the 911
call; and (4) a request that the court appoint an investigator as an expert
witness. The trial court (Judge Kirkman) deferred many of the evidentiary
motions to the trial judge.
As to the motion requesting appointment of an investigator as an
expert witness, the court explained that factual investigation is not an expert
issue; rather, it is an issue for him to coordinate with OAC. The court
advised Hatcher there may be areas where he and OAC disagree about
whether investigation is “appropriate.” For example, the court noted Hatcher
had requested, without basis, that OAC subpoena Michelle Obama. Hatcher
then mentioned that he would like his psychiatrist in Chicago to testify as an
expert. The court responded that it would not bring a witness from Chicago,
but left open the possibility of appointing a psychotherapist if Hatcher
“establish[ed] a basis” and coordinated with OAC and the supervising judge.
Another of Hatcher’s motions requested that his bail be reduced on the
grounds the evidence against him was false. The court indicated his bail had
already been reduced from $100,000 to $50,000 (the record does not explain
why), and explained credibility issues were a matter for trial.
A few weeks later, the trial court (Judge Danielson) held a further
readiness conference and bail review. During the readiness portion, the
prosecution offered Hatcher the low term of two years. Hatcher countered
8
with “time served and on probation and to seek help with . . . get[ting] back
on my medication of being bipolar.” Hatcher argued this was reasonable
because the prosecution would not be able to prove the robbery count in light
of his claim he had a thrift store voucher. The prosecution rejected the
counteroffer.
During the bail review portion, Hatcher argued for a further reduction
because his charge stemmed from “a misunderstanding”—when the store
would not accept his voucher, he “got upset and just stormed out because [he]
wasn’t taking [his] medication” for bipolar disorder. Hatcher told the court
his “psychiatrist [in Chicago] could explain that situation.” Based on an
apparent history of failing to appear for hearings, the court left Hatcher’s bail
at $50,000.
4. First Trial
In connection with the first trial, Hatcher filed numerous pretrial and
in limine motions addressing his theories about the voucher and the “tainted”
photo lineup procedure. Hatcher also moved to preclude the prosecutor from
impeaching Hatcher with his prior convictions. The court (Judge Brown)
denied or deferred the motions.
Trial was initially delayed when Hatcher claimed a medical emergency.
The court admonished Hatcher that if his medical condition caused further
delay, the court would revoke his self-represented status.
Once trial began, Hatcher gave an opening statement and cross-
examined all prosecution witnesses. Hatcher did not present any defense
witnesses, and had no proofs of service for the witnesses he claimed to have
subpoenaed. He moved unsuccessfully to compel Judge Washington’s
appearance to testify about the preliminary hearing. Hatcher did not give a
closing argument because he was taken to receive medical treatment.
9
During deliberation, the jury asked several questions, then indicated a
single juror was refusing to deliberate any further. The court inquired
whether the parties would agree to replace the holdout juror with an
alternate, but Hatcher refused. The court found the jury was “hopelessly
deadlocked,” declared a mistrial, and set a new trial date for one week later.
5. Second Trial
At the outset of the second trial, the court (Judge Brown, again) warned
Hatcher, “upon pain of exclusion[,] to follow courtroom decorum.” The court
noted Hatcher had previously feigned seven heart attacks, and advised
Hatcher the court would not delay trial for purported medical issues.
Hatcher again made several motions in limine addressing his
voucher/receipt theory. Although the court denied these motions, it granted
Hatcher’s motion seeking permission to impeach prosecution witnesses “if
[he] can do it appropriately.”
In addressing other pretrial motions, Hatcher noted he had had
disagreements with OAC, which had not complied with his requests for an
investigator. Hatcher insisted, “I’m supposed to be the attorney, not them,”
and “[t]hey [are] supposed to follow my instructions.” The court responded
that although Hatcher’s behavior provided “substantial reason to revoke
[his]” self-represented status, doing so would be “fruitless” in light of the
delay it would cause and the court’s observation that Hatcher “ha[s] no
intention of seeking anyone’s advice other than [his] own.”
Once trial began, Hatcher participated in voir dire, gave an opening
statement, cross-examined all prosecution witnesses, testified in his own
defense, participated in the jury instruction conference, and gave a closing
argument.
10
After the jury returned its guilty verdict, the court set the sentencing
hearing for about one month later. When Hatcher asked “why . . . it take[s] a
month,” the court responded that it wanted a probation report so the court
could make an informed decision that balanced Hatcher’s needs against the
interest in public safety:
“I want Probation to talk to you, to take a look at your
various issues. And other than two years in jail—and I
can’t imagine it would be anything but local time. State
prison will do you absolutely no good, Mr. Hatcher. It
would be even more detrimental. So I’m wanting to come
up with a plan where, between the People, you and me, we
can come up with a way to best handle your issues, which I
feel are not just medical, but I feel you have some
additional issues that we would like to address to assist
you. And also at the same time, we have to do our best to
ensure that the public is safe because . . . the jury found
that you obviously attacked [Sonia]. The jury found that.
And the other incident at the [hardware store], which I did
not know until it came up in evidence, I think that shows
that if you were left out on the streets that you would be a
danger to public safety.”
Before the court adjourned, it encouraged Hatcher to cooperate in
earnest with the probation officer:
“But I’m just urging you, Mr. Hatcher. Go into Probation in
an accepting frame of mind. And between all three of us,
we can fashion a sentence that would meet the criteria that
the State requires us to consider, but also Probation will
allow you to get some help, both medically and
psychologically, because to be quite blunt, Mr. Hatcher, I
think you have difficulty. And why—and maybe you were.
I don’t know if you ever went through a Penal Code
[section] 1368 examination, but . . . I’ll say this on the
record and will continue to say it. I have some real doubts
about your mental competence. But you got to this point,
and the Court repeatedly allowed you to defend yourself.
And I think you did yourself a disservice by defending
yourself. But be that as it may, we are forced—we’re here.
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You’ve been convicted of . . . felony robbery. Okay? It is a
strike. There are ways to play these things, Mr. Hatcher.
And again, I doubt very seriously that . . . Probation would
recommend or I certainly wouldn’t recommend that you go
to state prison. I don’t think it would do a darn bit of good
for you. But that’s not here. Okay? So go in there openly,
and don’t make demands. Don’t try to bargain. And find
out what the County of San Diego can do for you. They
have a lot of resources.”
6. Probation Report
The probation report indicated Hatcher had an extensive criminal
history: 137 arrests, 18 misdemeanor convictions, 13 felony convictions, nine
grants of summary probation, and five grants of formal probation.
The report also indicated Hatcher stated he had been diagnosed with
bipolar disorder in the 1980’s but was not currently taking any medication.
Hatcher “said he is ‘okay’ when he is not around people, but he believes he
may need an assessment for possible use of psychotropic medications.”
The probation officer recommended that the court impose the upper
term of five years.
7. Sentencing
On the day of the sentencing hearing, Hatcher filed a one-page,
handwritten motion titled “motion for continuance, to hire a[n] attorney, for a
new hearing, and jury trial.” (Capitalization omitted.) The entire substance
of the motion reads:
“Now comes the defendant Robert Hatcher, pro per and
respectfully request[s] a continuance, to have a[n] attorney,
to prepare for a preliminary hearing and if needed, other
defense hearings, also if need[ed] a jury trial[.] [¶]
12
Exhibits [are] attach[ed] to this motion.”5 (Capitalization
omitted.)
At the outset of the hearing, the trial court announced its tentative
decision was to follow the probation officer’s recommendation and impose the
five-year upper term. When the court asked Hatcher if he would like to
“attempt to have the Court change its mind,” Hatcher replied, “Yes, your
Honor. I filed a motion to have [a] continuance to have an attorney to
represent me because of my mental state at the time.” The court responded,
“[T]his is the time set for sentencing. And I was going to
explain it to you and recommend to you that you are
entitled to an attorney post-sentencing for purposes of an
appeal. And if you cannot afford an attorney one will be
provided to you. . . .
“But if you are asking me to rule on that motion, in reading
between the lines, as I often have to do with your motions
Mr. Hatcher, if there is a request for a continuance of
sentencing, that is denied. [¶] And I would also remind
you, Mr. Hatcher, that you . . . refused to waive time for
purposes of sentencing on today’s date. And I believe this
is the statutorily end date.”
Hatcher confirmed he “didn’t waive time.” He then complained that the
probation officer was from the central division instead of the northern
division; that the probation officer interviewed Hatcher about his mental
health history but did not interview Hatcher’s psychotherapists; and that the
psychotherapists would have explained to probation and the court that
Hatcher’s “bipolar . . . status was the cause of this.”
The court responded that it was going to proceed with sentencing, that
Hatcher would have the opportunity to raise these issues on appeal, and that
5 The appellate record does not include any exhibits to this motion.
13
he would be entitled to appointed appellate counsel. As noted, the court
imposed the upper term of five years.
B. Legal Principles
“ ‘ “Both the due process clause of the Fourteenth Amendment . . . and
state law prohibit the state from trying or convicting a criminal defendant
while he or she is mentally incompetent. [Citations.]” ’ ” (People v. Mai
(2013) 57 Cal.4th 986, 1032; see § 1367, subd. (a); People v. Rodas (2018) 6
Cal.5th 219, 230.) “A defendant is incompetent to stand trial when he or she
lacks the ability to consult with defense counsel with a reasonable degree of
rational understanding or a rational and factual understanding of the
proceedings.” (People v. Johnson (2018) 6 Cal.5th 541, 575 (Johnson); see
§ 1367, subd. (a).)
“A trial judge must suspend proceedings and hold a hearing ‘whenever
the court is presented with substantial evidence of incompetence, that is,
evidence that raises a reasonable or bona fide doubt concerning the
defendant’s competence to stand trial.’ ” (Johnson, supra, 6 Cal.5th at p. 575;
see § 1368, subd. (a).)6 Short of expert testimony establishing “with
6 Section 1368 states in part: “(a) If, during the pendency of an action
and prior to judgment . . . a doubt arises in the mind of the judge as to the
mental competence of the defendant, he or she shall state that doubt in the
record and inquire of the attorney for the defendant whether, in the opinion
of the attorney, the defendant is mentally competent. If the defendant is not
represented by counsel, the court shall appoint counsel. 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. [¶] (b) If counsel informs
the court that he or she believes the defendant is or may be mentally
incompetent, the court shall order that the question of the defendant’s mental
competence is to be determined in a hearing . . . . If counsel informs the court
that he or she believes the defendant is mentally competent, the court may
14
particularity” the defendant’s incompetence, “no single factor is necessary to
establish sufficient doubt of a defendant’s competence as to require a hearing.
Rather, a court must consider the ‘aggregate of th[e] indicia’ of the
defendant’s competence. [Citation.] ‘Evidence of incompetence may emanate
from several sources, including the defendant’s demeanor, irrational
behavior, and prior mental evaluations. [Citations.]’ [Citation.]” (People v.
Ghobrial (2018) 5 Cal.5th 250, 270 (Ghobrial).) “ ‘[M]ore is required to raise
a doubt than mere bizarre actions [citation] or bizarre statements [citation]
or statements of defense counsel that defendant is incapable of cooperating in
his defense [citation] or psychiatric testimony that defendant is immature,
dangerous, psychopathic, or homicidal or such diagnosis with little reference
to defendant’s ability to assist in his own defense [citation].’ ” (Ibid.)
“[E]vidence of mental illness alone is not sufficient to raise a doubt about a
defendant’s competence to stand trial. The question is whether [the]
defendant’s mental illness interfered with his ability to understand the
nature and purpose of the criminal proceedings or to communicate with his
counsel about his defense. [Citations.]” (Id. at p. 271.)
“On appeal, our task is to examine ‘the inferences that were to be
drawn from the undisputed evidence’ and to ask ‘whether, in light of what
was then known, the failure to make further inquiry into [the defendant]’s
competence to stand trial, denied him a fair trial.’ [Citation.]” (Ghobrial,
supra, 5 Cal.5th at pp. 269-270.) “ ‘ “[A]bsent a showing of ‘incompetence’
that is ‘substantial’ as a matter of law, the trial judge’s decision not to order a
nevertheless order a hearing. . . . [¶] (c) Except as provided in Section
1368.1, when an order for a hearing into the present mental competence of
the defendant has been issued, all proceedings in the criminal prosecution
shall be suspended until the question of the present mental competence of the
defendant has been determined.”
15
competency hearing is entitled to great deference, because the trial court is in
the best position to observe the defendant during trial.” ’ [Citation.]
‘Whether to order a present sanity hearing is for the discretion of the trial
judge, and only where a doubt as to sanity may be said to appear as a matter
of law or where there is an abuse of discretion may the trial judge’s
determination be disturbed on appeal.’ ” (Id. at p. 269.)
C. Analysis
This is a close case. Judge Brown’s post-verdict observation that he
had “some real doubts about [Hatcher’s] mental competence” certainly
warrants scrutiny. But, ultimately, although it is clear from the record that
Hatcher suffers to some extent from mental health issues, substantial
evidence does not establish as a matter of law that those issues “interfered
with his ability to understand the nature and purpose of the criminal
proceedings . . . .” (Ghobrial, supra, 5 Cal.5th at p. 271.)
To the contrary, substantial evidence in the appellate record shows that
Hatcher, indeed, understood the nature and purpose of the criminal
proceedings. In connection with the preliminary hearing, he sought to
subpoena defense witnesses, cross-examined all prosecution witnesses, and
testified in his own defense as to a coherent legal theory. He subsequently
managed to get his bail reduced from $100,000 to $50,000, and sought a
further reduction.
Hatcher engaged in extensive pretrial motion practice that
demonstrated his understanding of material evidence (the thrift store
voucher/receipt theory), impeachment, and procedural concerns regarding
photo lineups. His plea negotiations at the readiness conference further
demonstrate his appreciation for the nature of the proceedings and potential
outcomes.
16
At his first trial, Hatcher filed motions in limine directed at pertinent
evidentiary and procedural issues, gave an opening statement, and cross-
examined all prosecution witnesses. And despite presenting no defense
evidence, Hatcher managed to obtain a hung jury, which he maintained by
refusing to consent to removal of the lone holdout juror.
At his second trial, Hatcher filed pertinent motions in limine, sought to
exclude his prior convictions as impeachment evidence, participated in voir
dire, gave an opening statement, cross-examined all prosecution witnesses,
testified in his own defense, participated in the jury instruction conference,
and gave a closing argument.
All of this evidence affirmatively demonstrates Hatcher understood the
nature and purpose of the proceedings. Thus, we are not surprised that none
of the several judges before whom Hatcher appeared over the course of about
six months felt compelled to hold a competency hearing. Indeed, after the
preliminary hearing, Judge Washington expressly stated he did not “find
anything about [Hatcher’s] mental condition . . . that suggest[ed] . . . [Hatcher
was] incapable of representing [him]self.”
This is not to say that Hatcher’s understanding of the proceedings
translated into legal acumen—it did not. For example, although he identified
many relevant witnesses and sought to subpoena them for trial, he
repeatedly failed to properly serve the subpoenas. He also filed numerous
unsuccessful or inapplicable motions. But Hatcher’s lack of legal acumen did
not compel the court to hold a competency hearing.
Contrary to his suggestion, Hatcher’s posttrial motion seeking
appointment of counsel “because of [his] mental state at the time” (italics
added) was not tantamount to a request to evaluate his present mental
competence. The most reasonable reading of the quoted phrase is that
17
Hatcher intended to use his mental state at the time of the offense as a basis
to somehow lessen his culpability. This construction is borne out by the fact
Hatcher attempted to testify during the second trial that his bipolar disorder
caused him to get angry at Sonia when they had a misunderstanding about
the vouchers. He gave similar explanations at the bail review hearing and to
the probation officer.7 Given this context, Hatcher’s request did not obligate
the trial court to appoint counsel or investigate Hatcher’s present mental
competence.
Nor did Hatcher’s pretrial references to psychotherapists amount to a
request for a competency hearing or otherwise signal to the court that
Hatcher presently lacked mental competence. First, as with his posttrial
motion, it appears Hatcher sought to introduce evidence of his mental state
at the time of the offense as some sort of defense, and not as a basis to
establish he was not competent to stand trial. Second, in this vein, Judge
Washington admonished Hatcher at the preliminary hearing that the very
fact that Hatcher was self-aware enough to seek evidence substantiating he
suffered from a mental condition could undermine a potential claim that he
lacked mental competence. Third, even if Hatcher had introduced expert
testimony establishing he suffered from bipolar disorder at the time of the
offense—or even at the time of trial—such testimony would not have
compelled the court to appoint counsel or conduct a competency hearing
absent additional testimony establishing with particularity that the disorder
7 As noted, Hatcher told the court at the bail review hearing that his
“psychiatrist [in Chicago] could explain” that Hatcher “got upset and just
stormed out” of the thrift store “because [he] wasn’t taking [his] medication”
for bipolar disorder. Hatcher gave no indication his psychiatrist would testify
that Hatcher’s bipolar disorder would preclude him from representing
himself.
18
prevented Hatcher from understanding the nature of the proceedings. (See
Ghobrial, supra, 5 Cal.5th at p. 271 [“[E]vidence of mental illness alone is not
sufficient to raise a doubt about a defendant’s competence to stand trial.”];
Johnson, supra, 6 Cal.5th at pp. 552, 578 [expert testimony that the
“defendant suffered some from psychosis with ‘some kind of a thinking
disorder’ ” did not obligate the trial court to conduct a competency hearing].)
Nothing in the record suggests an expert would have so testified.
Hatcher asserts his attempt to subpoena Michelle Obama was a red
flag regarding his mental competence. While this attempted discovery was
admittedly bizarre, “ ‘more is required to raise a doubt than mere bizarre
actions [citation] . . . .’ ” (Ghobrial, supra, 5 Cal.5th at p. 270.)
Hatcher cites several statements by the trial court that he contends
indicate the court harbored sufficient doubt as to his mental competence that
the court was obligated to appoint counsel and conduct a competency hearing.
We are not persuaded.
In one example, the court told Hatcher at sentencing that his
“motions are for the most part gibberish.” It is clear from our review of the
record that this was hyperbole. The fact that some of Hatcher’s motions may
have been poorly written, or ultimately proved unsuccessful, did not compel
the court to conduct a competency hearing.
In another cited example, the court told Hatcher, “[Y]ou’re not
perceiving things accurately. I mean, what you’re saying just did not happen
or what this impeachment would be.”8 (Italics added.) In context, however,
the court was merely disagreeing with Hatcher that Sonia’s trial testimony
was subject to impeachment for being inconsistent with a statement in a
8 Hatcher omitted the italicized portion of this quote from his brief.
19
police report about whether she had started ringing-up Hatcher’s
merchandise before the incident. Reasonable minds often disagree about
whether different statements are truly inconsistent.
Hatcher repeatedly cites an instance in which the trial court told him
he was “not competent.” But context indicates the court was clearly referring
to Hatcher’s legal acumen, not his mental competence.9 Hatcher’s ill-advised
decision to represent himself did not, without more, establish his lack of
mental competence.
This brings us to the trial court’s superficially problematic statement:
“I have some real doubts about your mental competence.” At first blush and
in isolation, this statement gives us pause. But we are satisfied that, in
context, the trial court did not harbor sufficient doubt as to obligate it to
appoint counsel for Hatcher or to hold a competency hearing.10
Most significantly, the fact the court expressly cited section 1368—the
statute that governs mental competency proceedings—indicates the court had
the relevant legal framework in mind. Moreover, the court’s observation that
9 Specifically, in trying to convince Hatcher to allow counsel to represent
him on appeal, the trial court stated: “[T]here may very well be appellate
issues in the trial that a competent and experienced appellate attorney would
be able to identify. Honestly, sir, you are not competent. And as I indicated
earlier my opinion is you did not represent yourself competently during both
trials.” (Italics added.)
10 For context, we repeat the entire relevant passage: “Probation will
allow you to get some help, both medically and psychologically, because to be
quite blunt, Mr. Hatcher, I think you have difficulty. And why—and maybe
you were. I don’t know if you ever went through a Penal Code [section] 1368
examination, but I have—and I’ll say this on the record and will continue to
say it. I have some real doubts about your mental competence. But you got to
this point, and the Court repeatedly allowed you to defend yourself. . . .”
(Italics added.)
20
Hatcher “got to this point” and that the court had allowed him to continue
representing himself strongly suggests the court believed Hatcher understood
the nature and purpose of the proceedings. In light of the trial court’s
extensive firsthand observation of Hatcher throughout two jury trials, we will
not second-guess the trial court’s implicit determination that Hatcher’s
mental health condition was not severe enough to trigger competency
proceedings. (See Ghobrial, supra, 5 Cal.5th at p. 269 [“ ‘ “the trial judge’s
decision not to order a competency hearing is entitled to great deference . . .
because the trial court is in the best position to observe the defendant during
trial” ’ ”].)
In sum, although the issue is close, we conclude the trial court did not
err by not appointing Hatcher counsel or conducting a competency hearing.
II. Request for Counsel
In a related challenge, Hatcher contends the trial court denied him his
Sixth Amendment right to counsel by (1) denying his “motion for continuance,
to hire a[n] attorney, for a new hearing, and jury trial” (capitalization
omitted); and (2) failing to inquire about his competence before allowing him
to continue to represent himself. We disagree in both respects.
A. Background11
After the court pronounced sentence and explained Hatcher’s appellate
rights, Hatcher stated he wanted to file his notice of appeal “right now.” The
court repeatedly recommended that Hatcher refrain from doing so until after
appellate counsel had been appointed. But Hatcher insisted on filing his
11 We have already set forth the background regarding Hatcher’s motion
in Discussion part I.A.7., ante, which we incorporate here in full.
Accordingly, we set forth here only the additional pertinent factual
background.
21
notice immediately, stating, “When I get an attorney then they will proceed
forward. But as of today I am . . . attorney of record . . . [and] I would like to
file my notice of appeal.”
When the court again encouraged Hatcher to wait to allow appellate
counsel to prepare the notice of appeal, Hatcher insisted on doing it himself,
stating, “Well, your Honor, I am representing myself in the trial.”
The court allowed Hatcher to file the notice of appeal. The court again
encouraged Hatcher to allow counsel to represent him on appeal, observing
the court was “fairly [confident]” Hatcher “would not be facing five years in
state prison” if he had not insisted on representing himself throughout trial.
B. Legal Principles
“A request to revoke in propria persona status and have an attorney
appointed is committed to the sound discretion of the trial court. [Citation.]
However, such a request must be unequivocal, just as a request to waive
counsel must be unequivocal.” (People v. Weber (2013) 217 Cal.App.4th 1041,
1061 (Weber); see People v. Lawrence (2009) 46 Cal.4th 186, 192 (Lawrence).)
When “a self-represented defendant . . . , after commencement of the
trial, seeks to relinquish responsibility for his own defense and obtain the
appointment of counsel to represent him for the remainder of the trial,” a
trial court “must consider the totality of the circumstances in exercising its
discretion.” (People v. Lawley (2002) 27 Cal.4th 102, 149.) “[A] trial court
should consider, along with any other relevant circumstances, ‘(1) [the]
defendant’s prior history in the substitution of counsel and in the desire to
change from self-representation to counsel-representation, (2) the reasons set
forth for the request, (3) the length and stage of the trial proceedings, (4)
disruption or delay which reasonably might be expected to ensue from the
granting of such motion, and (5) the likelihood of [the] defendant’s
22
effectiveness in defending against the charges if required to continue to act as
his own attorney.’ ” (Lawrence, supra, 46 Cal.4th at p. 192.) However,
“ ‘ “[w]hile the consideration of these criteria . . . is obviously relevant and
helpful to a trial court in resolving the issue, they are not absolutes, and in
the final analysis it is the totality of the facts and circumstances which the
trial court must consider in exercising its discretion as to whether or not to
permit a defendant to again change his mind regarding
representation . . . .” ’ ” (Ibid.)
“To establish an abuse of discretion, [a defendant] must demonstrate
that the trial court’s decision was so erroneous that it ‘falls outside the
bounds of reason.’ A merely debatable ruling cannot be deemed an abuse of
discretion. [Citations.] An abuse of discretion will be ‘established by “a
showing the trial court exercised its discretion in an arbitrary, capricious, or
patently absurd manner that resulted in a manifest miscarriage of
justice . . . .” ’ ” (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335,
390.)
C. Analysis
We conclude the trial court did not err by denying Hatcher’s motion or
by not inquiring about his mental competence.
Hatcher’s challenge to the court’s ruling on his motion fails for two
reasons. First, the motion was not an unequivocal request to have counsel
appointed, as required. (Weber, supra, 217 Cal.App.4th at p. 1061.) Instead,
the trial court stated it was construing the motion as one for a continuance.
This was a reasonable construction because (1) Hatcher did not object to it;
(2) the reasons he articulated for seeking counsel were unrelated to
sentencing (the issue then before the court); and (3) when the court
encouraged Hatcher to allow counsel to represent him on appeal, he
23
confirmed he was still representing himself at the sentencing hearing. Thus,
the trial court did not err in construing the nature of Hatcher’s motion.
Second, even were we to construe Hatcher’s motion as a request for the
immediate appointment of counsel, we would find no abuse of discretion in
the trial court’s denial of the motion. The trial court observed that Hatcher
had refused to waive time for sentencing, which Hatcher confirmed, and the
hearing was set for the last statutorily permissible day. Moreover, in light of
Hatcher’s history of dilatory tactics throughout both trials—about which the
trial court had repeatedly admonished Hatcher—the trial court could
reasonably have construed the last-minute request to appoint counsel as
nothing more than a further attempt to delay proceedings.
Hatcher argues the trial court should have granted his motion because
he did a poor job of representing himself at trial. But a defendant’s legal
acumen is only one of several factors trial courts may consider when ruling on
a request to revoke self-representation. (Lawrence, supra, 46 Cal.4th at p.
192.)
Turning to Hatcher’s claim that the court’s failure to inquire as to his
mental competence deprived him of his right to counsel, we conclude the
challenge fails primarily for the reasons discussed in part I, ante. In
addition, although the trial court commented critically on Hatcher’s legal
skills and suspected they resulted in a less favorable outcome than counsel
would have obtained, “[t]he fact a defendant does a bad job, or even fails to
contest the case, is not a basis to revoke self-representation.” (Weber, supra,
217 Cal.App.4th at p. 1060; see People v. Mickel (2016) 2 Cal.5th 181, 193,
208 [revocation of self-representation was not triggered even where a
psychotherapist opined the defendant’s competence was “ ‘highly
questionable because of his irrational thinking,’ ” the defendant presented a
24
legally nonviable defense, and then reacted emotionally to the court’s
rejection of the defense]; People v. Best (2020) 49 Cal.App.5th 747, 757-758
[the defendant was entitled to represent herself even though she
misunderstood concepts regarding speedy trial rights, statutes pertinent to
her offenses, posttrial motions, general versus specific intent crimes, and
questions from the court regarding her right not to testify at trial].)
III. Mental Health Diversion
Hatcher requests that we remand this matter for the trial court to
consider whether to grant him pretrial mental health diversion under section
1001.36. The Attorney General maintains Hatcher forfeited this issue by
failing to raise it in the trial court. We agree with the Attorney General.
Moreover, we conclude remand would be futile in light of the trial court’s
comments before and during sentencing.
Effective June 2018, the Legislature enacted sections 1001.35 and
1001.36, which give trial courts the discretion to grant pretrial mental health
diversion to defendants with qualifying mental disorders. (Stats. 2018, ch.
34, § 24; see People v. Frahs (2020) 9 Cal.5th 618, 624, 626-627 (Frahs).) “As
originally enacted, section 1001.36 provided that a trial court may grant
pretrial diversion if it finds all of the following: (1) the defendant suffers from
a qualifying mental disorder; (2) the disorder played a significant role in the
commission of the charged offense; (3) the defendant’s symptoms will respond
to mental health treatment; (4) the defendant consents to diversion and
waives his or her speedy trial right; (5) the defendant agrees to comply with
treatment; and (6) the defendant will not pose an unreasonable risk of danger
to public safety if treated in the community. [Citations.]”12 (Frahs, at pp.
12 “Section 1001.36 was subsequently amended . . . to specify that
defendants charged with certain crimes, such as murder and rape, are
25
626-627.) If a defendant successfully completes pretrial diversion, the trial
court must dismiss the pending charges, and the underlying arrest “shall be
deemed never to have occurred” for most purposes. (§ 1001.36, subd. (e).)
The complaint against Hatcher was filed in late October 2018, about
two months after the mental health diversion statute took effect. He made
his first appearance in late January 2019, about seven months after the
statute took effect. Thus, the statute was in effect the entire time Hatcher’s
case was pending below. By failing to invoke the statute in the trial court,
Hatcher has forfeited the issue on appeal. (See People v. Carmony (2004) 33
Cal.4th 367, 375-376 [failure to seek dismissal pursuant to section 1385
forfeits right to raise issue for first time on appeal]; People v. Scott (1994) 9
Cal.4th 331, 353 [failure to object to discretionary sentencing choices forfeits
challenges on appeal]; People v. Trujillo (2015) 60 Cal.4th 850, 856 [holding
forfeiture rule applies in context of challenges to a fee order; forfeiture results
from the failure to assert a right in the tribunal having jurisdiction to
determine it].) It is of no moment that Hatcher was representing himself
because “[s]elf-represented defendants are ‘held to the same standard of
knowledge of law and procedure as is an attorney.’ ” (People v. Frederickson
(2020) 8 Cal.5th 963, 1000; accord People v. Kiney (2007) 151 Cal.App.4th
807, 815 [“a pro se defendant is held to the same standard as an attorney”].)
Even if Hatcher had not forfeited the issue, we would find it
unnecessary to remand for further consideration because the trial court’s
comments before and during sentencing indicate a remand would be futile.
(See, e.g., People v. Fuhrman (1997) 16 Cal.4th 930, 944 [“remand is not
required where the trial court’s comments indicate that even if it had
ineligible for diversion.” (Frahs, supra, 9 Cal.5th at pp. 626-627.) This
amendment is not at issue here.
26
authority to strike a prior felony conviction allegation, it would decline to do
so”]; People v. McVey (2018) 24 Cal.App.5th 405, 418.)
After the jury returned its guilty verdict, the trial court admonished
Hatcher that the current offense and the prior offense at the hardware store
“show[] that if you were left out on the streets that you would be a danger to
public safety.” This negates the prerequisite that a court grant pretrial
diversion only if the court is “satisfied that the defendant will not pose an
unreasonable risk of danger to public safety . . . if treated in the community.”
(§ 1001.36, subd. (b)(1)(F).)
Additionally, although the trial court initially seemed somewhat
amenable to fashioning a sentence that would enable Hatcher to receive
services for his mental health issues, once the court learned from the
probation report of Hatcher’s “shock[ingly]” extensive criminal history—
which was “accelerating” in violence—the court denied probation and
imposed the upper term of five years.
On this record, we are confident the trial court would not grant
Hatcher pretrial mental health diversion were we to remand for
consideration of the issue.
IV. Preventing Presentation of Evidence
As already discussed in part I.A.2., ante, before the preliminary hearing
Hatcher filed a purported “motion to dismiss” that really “seem[ed] to be . . . a
request to subpoena” two psychotherapists to testify at the preliminary
hearing. The trial court explained it was unable to take action on the motion
because service of subpoenas was a matter for Hatcher to address with OAC.
The court also cautioned Hatcher that the very fact that he was self-aware
enough to seek evidence substantiating he suffered from a mental health
condition could undermine a potential defense or claim that he lacked mental
27
competence. Hatcher contends these actions by the trial court violated his
“right to present witnesses and evidence in his defense.” The contention is
without merit.
As to Hatcher’s motion, the trial court merely explained at the
preliminary hearing that it could not take action because filing subpoenas
with the court does not effectuate service on the subpoenaed party. The court
advised Hatcher to coordinate with OAC in the future when he needed to
serve subpoenas. This was not tantamount to preventing Hatcher from
introducing testimony by psychotherapists. Indeed, although the court told
Hatcher it would not compel his psychiatrist in Chicago to appear in San
Diego, the court expressly left open the possibility of appointing a
psychotherapist if Hatcher “establish[ed] a basis” and coordinated with OAC
and the supervising judge.
Nor did the trial court violate Hatcher’s rights by explaining that his
attempt to subpoena psychotherapists may be “self-defeating” as to potential
defenses based on his mental condition. The court merely offered its candid
assessment of the potential impact of Hatcher’s doing so. Nothing in the
record indicates the court unduly influenced Hatcher.
DISPOSITION
Affirmed.
HALLER, J.
WE CONCUR:
BENKE, Acting P. J.
HUFFMAN, J.
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