People v. Bosch CA2/6 ( 2024 )

Filed 2/26/24 P. v. Bosch CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B322840
(Super. Ct. No. 21CR05874)
Plaintiff and Respondent, (Santa Barbara County)
v.
MICHAEL BOSCH,
Defendant and Appellant.
Michael Bosch appeals from the judgment after a jury found
him guilty of assault with a deadly weapon (Pen. Code,1 § 245,
subd. (a)(1), count 1) and two counts of assault by means of force
likely to produce great bodily injury (force likely assault, § 245,
subd. (a)(4), counts 2 and 3). The jury found true enhancements
for inflicting great bodily injury on all three counts. (§ 12022.7,
subd. (a).) The trial court sentenced him to seven years in state
prison.
1 All statutory references are to the Penal Code.
Bosch contends he did not knowingly and intelligently waive
his right to counsel, the trial court erred in not appointing counsel,
and a hiking boot is not a deadly weapon. The parties agree Bosch
was improperly convicted of both assault with a deadly weapon
and force likely assault based on the same act for counts 1 and 2.
We order the judgment modified to consolidate these counts and in
all other respects affirm.
FACTUAL AND PROCEDURAL HISTORY
Bosch was charged in count 1 with assault with a deadly
weapon, i.e., a boot, on Hermilio A. Count 2 charged the same acts
as force likely assault. Count 3 charged a separate incident of
force likely assault against Serena S.
Counts 1 and 2
Hermilio A., age 75, planned to urinate near a wastewater
treatment plant when Bosch grabbed him from behind and threw
him to the ground. His head hit the cement. Bosch “kicked
[Hermilio A.] in the head a couple of times” and “stomp[ed] his
head in the ground.” Bosch “literally tried to bust [his] head
open.” Hermilio A. was diagnosed with a subdural hematoma
(brain bleed) and remained in the hospital for three days.
Count 3
Serena S., approximately 52 years old, asked Bosch for a
cigarette. Bosch grabbed her and punched her repeatedly in the
face. She did not fight back. When she fell to the ground, he
kicked her in the face and head. She lost consciousness and bled
from her nose and face. She was taken to the hospital with a head
injury, bruised scalp, and broken nose. Bosch told police he hit
Serena S. in the face 15 or 16 times, then kicked her in the face or
head with the goal of knocking her unconscious.
2
Waiver of counsel
Before the preliminary examination, Bosch moved to
represent himself. He completed a four-page Faretta2 waiver form
in which he acknowledged his constitutional rights and the
“DANGERS AND DISADVANTAGES OF SELF-
REPRESENTATION.” (A copy of the form is appended to this
opinion as Attachment A.) On the form, Bosch stated that he
graduated high school, completed two semesters at the University
of Vienna, had no legal education, and had never previously
represented himself. He acknowledged the right to be represented
by an attorney, including a court-appointed attorney at no cost.
He also acknowledged that if he represented himself, he would be
provided “no more access to legal research or legal information
than any other inmate who acts as his own attorney, and that
access is limited”; the trial would not be continued without good
cause; “the case against [him] will be handled by a prosecutor who
is an experience[d] trial attorney”; Bosch would not “receive any
special consideration or assistance from the Court”; and he would
be required, “WITHOUT THE ASSISTANCE OF A
PROFESSIONAL ATTORNEY, to follow all of the requirements of
the criminal law, criminal procedure, law of evidence, and rules of
court.”
The waiver form also outlined various stages of the trial
Bosch would need to conduct if he represented himself. Bosch
acknowledged “the advice and recommendation of [the] Court that
[he] . . . not act as [his] own attorney and that [he] accept a court-
appointed attorney.” He signed the form directly below the
statement, “I hereby certify that I have read, understood and
2 Faretta v. California (1975) 422 U.S. 806 (Faretta).
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considered all of the above warnings.”
Bosch appeared on the felony complaint with a deputy public
defender before Judge Vernon K. Nakahara. The court confirmed
that Bosch had read the waiver form. The court told Bosch that
self-representation was “not a good idea,” was not “the right
decision for you,” and “would be against your self interest.” The
court warned Bosch he was charged with “serious offenses” and
was “going up against a very experienced DA.”
The court asked, “Do you know the dangers and
disadvantages of self-representation?” Bosch replied, “Which
would be?” The court responded that Bosch was untrained in the
law, and warned that he would be required to follow the rules of
the court and decorum and “understand the various steps in the
trial.”
Bosch persisted in representing himself and declined the
court’s invitation to confer with the public defender. The court
asked Bosch if he was “of sound mind.” He responded that he was.
He said he was not under the influence of alcohol or drugs. The
court granted the motion for self-representation.
Pretrial proceedings in the trial court
Bosch appeared for arraignment on the information before
Judge Brian E. Hill, who presided over the jury trial. Bosch
insisted on representing himself. He acknowledged previously
reading the information and declined the court’s offer to read it
aloud. He also acknowledged receiving jury instructions that “set
forth the elements that have to be satisfied beyond a reasonable
doubt.”
The court stated that Bosch was “talking about some things
that didn’t make a lot of sense,” such as things he wanted the
court to do. The court raised “a question” about Bosch’s
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competence to represent himself. The court appointed clinical
psychologist James S. Angelos, Ph.D., to examine Bosch’s
competence to represent himself. Dr. Angelos’s report concluded
that Bosch “should not proceed without a lawyer” because Bosch’s
belief he had “enough legal expertise to defend himself” was “a
serious error of judgment.”
The court then suspended criminal proceedings and
appointed clinical psychologists Carolyn Murphy, Ph.D., and
James A. Tahmisian, Ph.D., to examine whether Bosch was
competent to stand trial. Based on their reports, which were
written more than three months after Dr. Angelo’s report, the
court found Bosch competent to stand trial.
At four later hearings, Bosch confirmed he wanted to
represent himself. On the day set for trial, the court advised
Bosch he could still change his mind about representing himself,
but that once the trial began, it would be too late. The court gave
Bosch a copy of the second amended information and read it to
him. Bosch acknowledged he had seen it before. He also
acknowledged he was aware of the prosecution’s settlement offer of
seven years in prison. The prosecutor stated the minimum
sentence was five years and the maximum sentence was 13 years.
Trial and sentencing
At trial, Bosch made an opening statement, cross-examined
witnesses, and gave a closing argument. The jury found him
guilty of all charges and found true the great bodily injury
allegations.
The court sentenced Bosch to the midterm of three years in
prison for count 1 plus a three-year enhancement for infliction of
great bodily injury. Pursuant to section 654, the court stayed a
three-year sentence and three-year great bodily injury
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enhancement for count 2. For count 3, the court imposed one year
consecutive and stayed the great bodily injury enhancement in the
interest of justice.
ARGUMENT
Faretta waiver
Bosch concedes his waiver of counsel was voluntary but
contends it was invalid because it was not knowing and intelligent.
We are not persuaded.
Criminal defendants have a Sixth Amendment right to
conduct their own defense if they knowingly and intelligently
waive the right to the assistance of counsel. (Faretta, supra, 422
U.S. at pp. 821, 835.) “The requirements for a valid waiver of the
right to counsel are (1) a determination that the accused is
competent to waive the right, i.e., he or she has the mental
capacity to understand the nature and object of the proceedings
against him or her; and (2) a finding that the waiver is knowing
and voluntary, i.e., the accused understands the significance and
consequences of the decision and makes it without coercion.”
(People v. Koontz (2002) 27 Cal.4th 1041, 1069-1070 (Koontz).)
“On appeal, we independently examine the entire record to
determine whether the defendant knowingly and intelligently
waived the right to counsel.” (People v. Burgener (2009) 46 Cal.4th
231, 241.) “ ‘The burden is on the defendant to demonstrate he did
not knowingly and intelligently waive his right to counsel.’ ”
(People v. Sullivan (2007) 151 Cal.App.4th 524, 547, italics
omitted.)
A defendant seeking to represent himself “should be made
aware of the dangers and disadvantages of self-representation, so
that the record will establish that ‘he knows what he is doing and
his choice is made with eyes open.’ [Citation].” (Faretta, supra,6
422 U.S. at p. 835.) “ ‘No particular form of words is required in
admonishing a defendant who seeks to waive counsel and elect
self-representation.’ [Citation.] Rather, ‘the test is whether the
record as a whole demonstrates that the defendant understood the
disadvantages of self-representation, including the risks and
complexities of the particular case.’ ” (People v. Blair (2005) 36
Cal.4th 686, 708.)
“Generally, a defendant should be told that ‘self-
representation is almost always unwise and that the defense he
conducts might be to his detriment; he will have to follow the same
rules that govern attorneys; the prosecution will be represented by
experienced, professional counsel who will have a significant
advantage over him in terms of skill, training, education,
experience, and ability; the court may terminate his right to
represent himself if he engages in disruptive conduct; and he will
lose the right to appeal his case on the grounds of ineffective
assistance of counsel. [Citation.] In addition, he should also be
told he will receive no help or special treatment from the court and
that he does not have a right to standby, advisory, or cocounsel.’ ”
(People v. Weber (2013) 217 Cal.App.4th 1041, 1057-1058; Koontz,
supra, 27 Cal.4th at pp. 1070-1071.)
In addition, the court should advise that “the defendant will
receive no more library privileges than those available to any other
self-represented defendant, or any additional time to prepare.”
(Koontz, supra, 27 Cal.4th at p. 1071.) It is recommended that the
court “inquire into the defendant’s education and familiarity with
legal procedures, . . . prob[e] the defendant’s understanding of the
alternative to self-representation, i.e., the right to counsel,
including court-appointed counsel at no cost to the defendant, and
explor[e] the nature of the proceedings, potential defenses and
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potential punishments.” (Ibid.)
We conclude that Bosch knowingly and intelligently waived
his right to counsel. Virtually all the recommended advisements
and waivers were included on Bosch’s Faretta waiver form. Bosch
was also advised of the potential consequences if convicted at trial
and he reiterated his desire to represent himself throughout the
court proceedings where the court repeated many of the
advisements on the form.
Bosch contends he could not knowingly and intelligently
waive his right to counsel because he was a homeless German
citizen with no prior criminal history. But our high court has
“ ‘rejected claims that the fact or likelihood that an unskilled, self-
represented defendant will perform poorly in conducting his or her
own defense must defeat the Faretta right. [¶] . . . Instead, we
have accepted that the cost of recognizing a criminal defendant’s
right to self-representation may result “ ‘in detriment to the
defendant, if not outright unfairness.’ ” [Citations.] But that is a
cost that we allow defendants the choice of paying, if they can do
so knowingly and voluntarily.’ ” (People v. Frederickson (2020) 8
Cal.5th 963, 1000.) Bosch’s allegations do not establish that the
trial court could lawfully reject his waiver. A defendant’s
“technical legal knowledge . . . [is] not relevant to an assessment of
his knowing exercise of the right to defend himself.” (Faretta,
supra, 422 U.S. at p. 836.)
This case is unlike People v. Ruffin (2017) 12 Cal.App.5th
536. There, “appellant’s request for self-representation was ‘made
in passing anger or frustration’ about the need to continue the
trial.” (Id. at p. 550.) When the case was assigned to a trial
courtroom later that day, Ruffin said, “ ‘Really I don’t want to
represent myself pro per.’ ” (Id. at p. 542.) But here Bosch
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consistently requested to represent himself, despite the court’s
numerous attempts to dissuade him.
The record here establishes that Bosch knowingly and
intelligently waived his right to counsel.
Competency for self-representation
Bosch contends the trial court erred because it did not
understand it had the discretion to appoint counsel even if Bosch
was competent to stand trial. The court stated, “United States
Supreme Court precedent . . . basically says that if . . . someone is
competent to stand trial, then they’re necessarily competent to
represent themselves. I quarrel with that precedent, but I’m
bound by it, and so we’ll honor it.”
We agree the court erred but conclude the error is harmless.
There is no substantial evidence that Bosch suffered from a severe
mental illness that would render him incompetent to represent
himself.
Competence to stand trial requires “the capacity to
understand the nature and object of the proceedings . . . , to
consult with counsel, and to assist in preparing [a] defense.”
(Indiana v. Edwards (2008) 554 U.S. 164, 170 (Edwards), italics
omitted; § 1367, subd. (a).) Competence to represent oneself at trial
requires the ability “to carry out the basic tasks needed to present
[one’s] own defense without the help of counsel.” (Edwards, at pp.
175-176.)
“[T]he Constitution permits States to insist upon
representation by counsel for those competent enough to stand
trial . . . but who still suffer from severe mental illness to the point
where they are not competent to conduct trial proceedings by
themselves.” (Edwards, supra, 554 U.S. at p. 178, italics added.)
The high court referred to such persons as “gray-area defendants.”
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(Id. at pp. 172-174.) Edwards relied on the position of the
American Psychiatric Association that “ ‘[d]isorganized thinking,
deficits in sustaining attention and concentration, impaired
expressive abilities, anxiety, and other common symptoms of
severe mental illnesses can impair the defendant’s ability to play
the significantly expanded role required for self-representation
even if he can play the lesser role of represented defendant.’ ” (Id.
at p. 176.) The high court upheld the rejection of Edwards’s
request to represent himself based on psychiatric and
neuropsychological evidence he was schizophrenic and suffered
from “serious thinking difficulties and delusions.” (Id. at p. 168.)
In People v. Johnson (2012) 53 Cal.4th 519 (Johnson), the
California Supreme Court “accept[ed] the high court’s invitation”
and held that “California courts [may] deny self-representation
when Edwards permits such denial.” (Johnson, at p. 525.) “A
court may not deny self-representation merely because it believes
the matter could be tried more efficiently, or even more fairly, with
attorneys on both sides.” (Id. at p. 531.) To deny self-
representation, a defendant must “suffer[] from a severe mental
illness to the point where he or she cannot carry out the basic
tasks needed to present the defense without the help of counsel.”
(Id. at p. 530, italics added.)
“Edwards and Johnson both require that the defendant’s
incompetence to represent [themselves] derive from a ‘severe
mental illness.’ ” (People v. Orosco (2022) 82 Cal.App.5th 348,
360.) The record here is devoid of substantial evidence that Bosch
suffered from a severe mental illness. (Id. at p. 363.) Dr. Angelos
reported that Bosch “vaguely described himself as having mental
health problems but has been unsuccessful or is unable to obtain
treatment for his mental health issues.” Dr. Angelos found Bosch
10
did not exhibit signs of hallucinations or delusional thinking.
Bosch’s memory, concentration, and attention were intact. His
intellectual functioning was within normal range. Dr. Angelos
concluded, “It is more likely than not he does not suffer from a
severe mood or severe thought disorder which impairs his factual
understanding of his status.” (Italics added.)
Dr. Angelos nevertheless stated, “It is more likely than not
he [Bosch] does suffer from a severe mood or severe thought
disorder which impairs his appreciation of his status in reference
to the proceedings.” (Italics added.) But Dr. Angelos’s report
contradicted this statement, concluding, “Mr. Bosch’s thought
processes were logical and goal-directed. . . . His mood appeared to
be neutral and his affect varied appropriately with the content of
our conversation.” Nor did Dr. Angelos’s report identify areas
where Bosch misunderstood his status regarding the proceedings.
Bosch stated he was facing serious charges at trial, gave his
versions of the two assaults, stated he intended to represent
himself, and noted possible outcomes of being found guilty or
innocent or having the charges dropped.
Dr. Angelos concluded Bosch “[i]s not ready to proceed to a
hearing,” and “[i]t is more likely than not he is not capable of
presenting his defense in a knowledgeable, effective and rational
manner.” But this conclusion was not based on a severe mental
illness. It was based on what Dr. Angelos viewed as “a serious
error of judgment” on Bosch’s part, i.e., that he believed “he has
accumulated enough legal expertise to defend himself” during his
approximately two months in custody.
Moreover, neither Dr. Murphy nor Dr. Tahmisian concluded
Bosch “suffer[ed] from severe mental illness to the point where [he
was] not competent to conduct trial proceedings by [himself].”
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(Johnson, supra, 53 Cal.4th at p. 527.) Rather, both doctors stated
Bosch did not exhibit delusions or hallucinations. Dr. Murphy
wrote that Bosch “denied any mental health history” or “drug
history.” She observed no “thought or mood disorder,” no “overt
symptoms of mental health difficulty,” and no evidence of “mental
illness interference with his functioning.”
Bosch told Dr. Tahmisian he attended drug rehabilitation
more than six years earlier, but he “was not clear on current
mental health contacts.” Dr. Tahmisian stated that Bosch’s
“pseud[o]-knowledge of legal terms and procedures” would create a
“challenge” for defense counsel, but it was “not sourced in mental
illness or cognitive impairment.” He noted that Bosch “volitionally
chooses” not to cooperate at times, but “this deficiency in
cooperation is not due to a mental disorder or cognitive disability
but a conscious choice.” As in People v. Taylor (2009) 47 Cal.4th
850, 864, “such conflicts were attributable to difficult aspects of
defendant’s personality rather than to a diagnosed mental illness.”
The unsupported statement in Dr. Angelo’s report about “a
severe mood or severe thought disorder” was inconsistent with the
rest of his report, and with the more current reports of Drs.
Murphy and Tahmisian. General concerns about a defendant’s
mental state, including statements by an expert that a defendant
suffers from mental illness, do not constitute substantial evidence
of incompetence for self-representation where, as here, they “offer
little insight into whether defendant lacked the ability to . . .
participate in and conduct his defense.” (People v. Mickel (2016) 2
Cal.5th 181, 204; People v. Laudermilk (1967) 67 Cal.2d 272, 285.)
The indications of mental illness here are far less than those in
People v. Halvorsen (2007) 42 Cal.4th 379, 402-403, where our
Supreme Court found the defendant’s “ ‘rambling, marginally
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relevant speeches’ ” and a forensic psychiatrist’s diagnosis of
psychosis did not constitute substantial evidence of incompetence.
Bosch’s reliance upon People v. Shiga (2016) 6 Cal.App.5th
22, is unavailing. As here, the trial court erroneously believed the
defendant’s competence to stand trial required the court to allow
self-representation. (Id. at p. 40.) Shiga “had been regularly
seeing a psychiatrist” and “had been diagnosed with schizophrenia
and delusions.” (Id. at p. 43.) But here, there was no substantial
evidence that Bosch suffered from a severe mental illness. Thus,
the trial court was not permitted to deny his request for self-
representation.
Sufficiency of the evidence
Bosch also contends the evidence of assault with a deadly
weapon is insufficient because his boot was not a deadly weapon.
We disagree.
The jury here was instructed: “A deadly weapon other than a
firearm is any object, instrument, or weapon that is used in such a
way that it is capable of causing and likely to cause death or great
bodily injury.” (CALCRIM No. 875 (modified); People v. Aguilar
(1997) 16 Cal.4th 1023, 1028-1029 (Aguilar).)
Aguilar held that “a ‘deadly weapon’ within the meaning of
section 245 must be an object extrinsic to the human body. Bare
hands or feet, therefore, cannot be deadly weapons.” (Aguilar,
supra, 16 Cal.4th at p. 1034.) Although the defendants there wore
shoes, the record did not indicate the type of footwear. (Id. at pp.
1034-1035.) The court recognized, “There can be no doubt that
some footwear, such as hobnailed or steel-toed boots, is capable of
being wielded in a way likely to produce death or serious injury,
and as such may constitute weapons within the meaning of section
245, subdivision (a)(1).” (Id. at p. 1035.) The examples of
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hobnailed and steel-toed boots were not exclusive and did not
preclude other kinds of boots from being used as deadly weapons.
Applying the substantial evidence standard of review (People
v. Navarro (2021) 12 Cal.5th 285, 302), we conclude the evidence
supports the jury’s conclusion that Bosch’s boot was used as a
deadly weapon. The jury was shown a photograph of the boots. A
police officer described them as “[a]verage hiking boots” that are
“more durable” than other footwear, encased with “thicker
leather,” and “a hardened shell on the nose of the shoe for kicking
rocks.” In the officer’s experience investigating assaults, hiking
boots inflict more damage and are more dangerous or deadly than
lighter footwear. The serious injuries Bosch inflicted support the
conclusion that his boot could cause and was used in a way likely
to cause great bodily injury.
Dual convictions
For the assault on Hermilio A., the jury convicted Bosch of
both assault with a deadly weapon (§ 245, subd. (a)(1), count 1)
and force likely assault (§ 245, subd. (a)(4), count 2). For each of
these counts, the court imposed a three-year sentence plus a three-
year enhancement for inflicting great bodily injury (§ 12022.7,
subd. (a)). The court stayed the sentence and enhancement for
count 2 pursuant to section 654.
After Bosch’s sentence, our Supreme Court held that assault
with a deadly weapon and force likely assault are different
statements of the same offense, and a defendant may not be
convicted of both if based on the same act or course of conduct.
(People v. Aguayo (2022) 13 Cal.5th 974, 993.) The parties agree
that Bosch cannot be convicted of both counts, but disagree on the
remedy. Bosch contends the assault with a deadly weapon
conviction should be stricken. The Attorney General contends the
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two counts should be consolidated.
We conclude consolidation is appropriate. Before 2011,
assault with a deadly weapon and force likely assault were
alternate ways to violate former section 245, subdivision (a)(1).
Consolidation reflects the “ ‘true nature’ ” of the conviction (People
v. Aguayo, supra, 13 Cal.5th at p. 987): the boot was a deadly
weapon because it was used in a way that was likely to cause great
bodily injury. (See People v. Craig (1941) 17 Cal.2d 453, 459,
overruled on other grounds, People v. White (2017) 2 Cal.5th 349,
359.)
DISPOSITION
The judgment is modified to consolidate the convictions of
assault with a deadly weapon (count 1) and assault with force
likely to cause great bodily injury (count 2) into a single violation
of subdivisions (a)(1) and (a)(4) of section 245. In all other
respects, the judgment is affirmed. The trial court is directed to
prepare an amended abstract of judgment and send a certified
copy to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED.
BALTODANO, J.
We concur:
YEGAN, Acting P.J. CODY, J.
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Attachment A
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Brian E. Hill, Judge
Superior Court County of Santa Barbara
______________________________
Adrian Dresel-Velasquez, under appointment by the Court
of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and David F. Glassman, Deputy
Attorneys General, for Plaintiff and Respondent.
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