People v. Dean CA4/1 ( 2024 )

Filed 10/25/24 P. v. Dean 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D081767
Plaintiff and Respondent,
v. (Super. Ct. No. SWF1500705)
DAVID ANTHONY DEAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County,
Jeffrey J. Prevost, Judge. Reversed and remanded with directions.
Christopher Love, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General,
Collette C. Cavalier and Nora S. Weyl, Deputy Attorneys General for Plaintiff
and Respondent.
In 2015, David Anthony Dean broke into his parents’ home and
assaulted his father and half-brother with a metal rod. Dean was charged
with one count of burglary and two counts of assault with a deadly weapon.
Dean pleaded not guilty by reason of insanity (NGI) and, after the guilt phase
of his trial, the jury found him guilty of all three counts. In the second phase
of trial, the jury rejected Dean’s insanity defense. The trial court, however,
granted Dean a new sanity trial after finding the jury failed to give proper
weight to the testimony of two court-appointed psychologists who opined
Dean was not sane when he committed the crimes.
The district attorney who prosecuted the case then unsuccessfully
appealed the trial court’s ruling. This court found the trial court’s decision
was supported by ample evidence and conditionally affirmed the new trial
order, directing the trial court to consider whether Dean was eligible for
mental health diversion in light of recently enacted legislation providing for
such relief. Shortly after remand, Dean was found incompetent to stand trial
and committed to the Department of State Hospitals (DSH) for a period of
around three months. After his competency was restored, Dean filed a
motion to represent himself under Faretta v. California (1975) 422 U.S. 806(Faretta), which the court granted. Dean then continued a campaign, which
he began after this court’s prior remand, of ex parte court filings asserting he
had been wrongly convicted and that he was the victim of a wide-ranging
conspiracy. Seven months later, unsurprisingly, the court declared a doubt
as to Dean’s competency and he was committed to the DSH a second time.
Three months after Dean was found to have regained his competency,
on January 6, 2022, he again successfully moved under Faretta to represent
himself. Thereafter, Dean withdrew his NGI plea. After mental health
2
diversion was denied, Dean continued to argue he was wrongly convicted.
Dean’s filings and appearances before the court during the year-long period
after his Faretta motion was granted clearly evidenced his competency
remained in question, but no doubt was declared. In January 2023, the trial
court sentenced Dean to 19 years in state prison.
On appeal from the judgment of conviction, Dean argues the court
erred by granting his Faretta motions because he was not competent to
represent himself at the time they were granted. The Attorney General
concedes that Dean’s final Faretta motion was improperly granted and
asserts the proper remedy is a conditional reversal for the trial court to
consider the feasibility of holding a retrospective competency hearing. We
agree with the parties that reversal of the judgment is appropriate but
conclude that a retrospective competency hearing is not feasible.
Accordingly, the judgment is reversed and, if Dean is presently competent to
stand trial, the court is directed to consider Dean’s eligibility for mental
health diversion and then, if necessary, proceed to the sanity phase of trial.
We also address the critical problem of Dean’s insistence on self-
representation because of his belief that his guilt remains at issue. Dean has
twice regained his competency, then been granted a waiver of his right to
counsel while “competent,” and then decompensated once he was no longer
under the supervision of the DSH. We have serious concerns that this
pattern will again repeat if Dean is permitted to waive his right to counsel
3
and delay the remaining proceedings.1 Thus, we strongly advise the trial
court to adjudicate Dean’s case as quickly as possible and to be exceedingly
circumspect in allowing Dean to exercise his rights under Faretta without
any mechanism to ensure his mental health remains stable thereafter.
FACTUAL AND PROCEDURAL BACKGROUND
A
In 2015, Dean’s father, stepmother, and their son, D.D., lived together
in a house in Murrieta. On April 14, 2015, around 11 p.m., D.D. was
awakened by a loud crash and Dean slamming open his upstairs bedroom
door. Dean walked into the room swinging a three-foot metal pipe. The
brothers engaged in a scuffle, and Dean left the room and walked a few stairs
down. D.D. grabbed a gun from his room. Dean’s father and stepmother
heard the commotion and came out of their adjacent bedroom. They saw
Dean on the stairs and Dean swung the metal pipe at his father. Dean’s
father raised his arm to block the blow and the pipe struck his arm. Dean’s
father fell down the stairs and could not walk. His face and arm were
bleeding. Dean’s stepmother called 911.
D.D. came out of his room with his gun, saw Dean lying on his back on
the stair’s landing area, and pointed the gun at him. Dean had a broken leg
and could not walk. Dean crawled down the stairs repeatedly yelling “I’m
King David, motherfucker. I’m King David. Shoot me. Shoot me.” Dean
made it to the downstairs living room while D.D. kept his gun trained on him.
1 Although nothing we have discovered in the record directly states so,
the record suggests Dean’s mental health decompensates once he returns to
jail and is no longer in the DSH’s care (and perhaps not taking antipsychotic
medication). For this reason, if after remand a doubt is declared as to Dean’s
competency, the evaluating experts should specifically opine on whether
Dean can remain competent while not in the care of the DSH.
4
Dean threw the pipe towards D.D., then hobbled into the kitchen and
grabbed a knife.
Police soon arrived at the house and found Dean lying on a couch
holding a knife to his throat. Dean was bleeding from his neck, refused to
put the knife down, and threatened to kill himself and the police officers.
The police attempted to negotiate with Dean, but he rambled incoherently
and repeatedly referred to himself as “the King.” Police eventually subdued
Dean by shooting him with a beanbag shotgun and turning a police dog on
him. Dean was taken into custody. After Dean’s arrest, a handwritten note
with blood on it was found in the family’s kitchen. The letter contained
delusions and incomprehensible statements.
B
Dean was charged by information with two counts of assault with a
deadly weapon other than a firearm (a metal pipe) (counts 1 & 2; Pen. Code,
§ 245, subd. (a)(1)2) and burglary of an inhabited dwelling house (count 3;
§ 459). As to count 3, the information alleged that another person other than
an accomplice was present at the time of the offense (§ 667.5, subd. (c)(21)).
The information also contained three allegations that Dean had previously
served time in prison pursuant to section 667.5, subdivision (a), an allegation
he had a serious prior conviction pursuant to section 667, subdivision (a), and
an allegation that he had a serious violent offense conviction within the
meaning of sections 667, subdivisions (c) and (e)(1) and 1170.12,
subdivision (c)(1). Dean pleaded not guilty and not guilty by reason of
insanity. As a result of his NGI plea, the court appointed two psychiatrists to
evaluate Dean under section 1026.
2 Subsequent undesignated statutory references are to the Penal Code.
5
On July 31, 2017, after the guilt phase trial, a jury found Dean guilty
on all counts and found true the allegation that the house was occupied at the
time of the burglary. The case then proceeded to the sanity phase trial.
During this phase, Dean’s trial counsel presented evidence of the
handwritten note found shortly after Dean was arrested. The note was
discovered on the kitchen floor where Dean had been the night of the crimes.
“There was blood and fluid around the kitchen and the note was wet with
blood. The note referred to Dean as a prince and to a dinosaur. The note was
fragmented and did not make sense.” (People v. Dean (Nov. 29, 2018,
D074700) [nonpub. opn.] (Dean).)
The two appointed psychologists, Dr. Robert Suiter and Dr. William
Jones, testified about their evaluations of Dean. “Dr. Suiter evaluated Dean
and reviewed historical mental health record, police reports, a letter from a
family member, and handwritten documents from Dean.” (Dean, supra,
D074700.) Dr. Suiter opined that “Dean had a history of psychosexual
delusions, which are fixed beliefs not based in reality. He believed his
[father] had sexually molested family members, who then engaged in
molestation of others as adults. He also believed family members were
suffering from Stockholm Syndrome.” (Ibid.) Dr. Suiter testified that “Dean
also had a history of auditory hallucinations, believing voices talked to him
from the television.” (Ibid.) Dr. Suiter stated that Dean told him “he
believed [his father] had been molesting individuals, including a child” and
that “Dean went to the house on the night of the incident to confront [his]
father.” (Ibid.)
“Dr. Suiter opined Dean had schizoaffective disorder and was not sane
at the time of the crimes. He based his opinion on Dean’s history of chronic
mental disorder along with symptoms at the time of the crime, which were
6
corroborated by police reports of the arresting officers.” (Dean, supra,
D074700.) Dr. Suiter believed that due to Dean’s “severe mental disorder,”
he “was experiencing an elaborate delusional system and was unable to
appreciate his beliefs were not based in reality. His confrontation of [his
father] based on the delusions led Dr. Suiter to conclude Dean was unable to
appreciate the wrongfulness of his actions at the time.” (Ibid.)
Dr. Jones testified that Dean told him that he thought his father and
half-brother “were molesting children or were about to molest children in the
family,” that he “heard the voice of a Las Vegas casino owner”, and that “his
cousin was communicating with him telepathically and they had a suicide
pact.” (Dean, supra, D074700.) Dean also told Dr. Jones that a “year or two
before the incident, [he] believed everyone in the world could hear or be
aware of his thoughts.” (Ibid.) Dean “said he went to the home on the night
of the incident because he was trying to prevent a child from being molested,”
that his half-brother “had Stockholm Syndrome,” and that he “believed the
police were ‘in on it.’ ” (Ibid.)
At trial, “Dr. Jones opined Dean had bipolar mood disorder, type I, with
psychotic features. In his opinion, Dean suffered from this mental illness at
the time of the incident. Dr. Jones saw no evidence to indicate malingering.
Dr. Jones considered Dean’s behavior leading up to the crime. Dr. Jones
opined Dean was legally insane at the time he committed the crimes. Dean
was not capable of knowing or understanding the nature of his acts or
distinguishing right from wrong.” (Dean, supra, D074700.) Dr. Jones also
testified that Dean’s act of stabbing “himself in the neck twice appeared to be
a significant suicidal effort, which is not consistent with malingering.” (Ibid.)
Following the sanity phase evidence, on August 8, 2017, the jury found
Dean sane as to counts 2 and 3. The jury hung as to count 1 and the trial
7
court declared a mistrial on that count. Count 1 was subsequently dismissed
in the interest of justice. Dean admitted his prior conviction was a strike
prior.
On October 13, 2017, the trial court granted Dean’s motion for a new
sanity phase trial. The People appealed the trial court’s ruling. This court
conditionally affirmed the trial court’s ruling and remanded the case for a
new sanity phase trial. (Dean, supra, D074700.) Based on recent changes to
the law at that time, we directed the trial court to first consider whether
Dean was eligible for mental health diversion under section 1001.36. If
diversion was granted and successfully completed, we directed the trial court
to dismiss the charges under the statute. If the trial court determined Dean
was ineligible for diversion, or he did not successfully complete diversion, we
directed the court to conduct a new trial on the issue of sanity. (Ibid.)
C
After remand, on December 21, 2018, Dean filed a motion under
Faretta to represent himself in the remaining proceedings. The court granted
the petition.
On January 30, 2019, the court scheduled a mental health diversion
hearing in accordance with our directions on remand. At the hearing on
February 14, 2019, Dean requested that the trial court appoint counsel to
represent him. The court granted the request, appointed counsel for Dean
and continued the mental health diversion hearing to March 5, 2019.
At the hearing, Dean’s newly appointed counsel declared a doubt as to
his competency under section 1368 and the court vacated the diversion
proceedings. The trial court then suspended criminal proceedings and
appointed a psychiatrist and a psychologist to prepare competency reports.
The reports were submitted to the court and both professionals opined that
8
Dean was not competent to stand trial. On April 26, 2019, based on the
mental health expert reports and the court’s own observations of Dean’s
behavior, the trial court found Dean mentally incompetent to stand trial and
ordered him committed to the custody of the DSH.
On July 12, 2019, the DSH filed a certificate of mental competency in
accordance with section 1372. The certificate was based on the report of a
forensic psychologist, who opined Dean was able to understand the nature of
the criminal proceedings and rationally assist his public defender in his
defense. On August 9, 2019, the trial court found Dean’s mental competency
restored and reinstituted criminal proceedings.
A few months later, during a hearing on November 21, 2019, Dean
made his second Faretta motion. Dean told the court he intended to seek to
dismiss his case, repeatedly asserting the guilt phase trial was “invalid” and
that the prosecutor had no “valid case body.”
After thoroughly explaining to Dean the risks of self-representation,
the trial court granted Dean’s motion and set a trial date for the sanity phase
of February 3, 2020. Thereafter, the court continued the trial several times
at Dean’s request and as a result of the Covid-19 pandemic. At each hearing
during this period, Dean displayed signs of irrational thinking and confusion,
repeatedly telling the court he was the victim of a conspiracy against him and
threatening individuals involved in the proceedings. Dean also submitted
hundreds of pages of documents to the court riddled with indecipherable
statements, and attaching various court filings from the present case and
other cases.
At a continued trial readiness conference on June 19, 2020 the trial
court again declared a doubt as to Dean’s competency to stand trial. Dean
was removed from the court for disruptive behavior. Thereafter, Dean’s prior
9
defense counsel, who was present, asked the court to continue the matter in
order to meet with Dean. At the continued hearing on June 24, 2020, Dean
was again removed from the courtroom for his disruptive behavior, including
making threats to kill, and the court suspended the criminal proceedings in
accordance with section 1368 and referred Dean for competency evaluations.
On August 6, 2020, after receiving the results of the two competency
evaluations (as well as hundreds of pages of additional documentary
submissions from Dean), the court found Dean incompetent to stand trial and
again committed him to the DHS. In addition, the court ordered a
psychological evaluation to determine whether Dean met the criteria to be
involuntarily administered antipsychotic medication under section 1370.3
Both psychologists who evaluated Dean opined he was not competent to
stand trial or assist counsel. One indicated in his report that Dean was
suffering from paranoid schizophrenia and that he was “verbalizing
delusional ideations of the grandiose and paranoid nature.” The psychologist
noted that his evaluation was largely impeded because Dean was focused
only on arguing he had been wrongly arrested and convicted.
On August 13, 2021, the trial court found that Dean’s mental
competency was restored based on a certificate of mental competency
prepared on July 29, 2021. The certification report noted that Dean had been
admitted to the state hospital on May 12, 2021 and that he had been
compliant with treatment and taking antipsychotic medication. The
psychologist who evaluated Dean concluded he sufficiently understood the
legal proceedings he was facing, and that although he continued to argue he
had been wrongly convicted and was the victim of a conspiracy, that his
3 The psychologist who evaluated Dean for this purpose found he met the
criteria to support a court order for the involuntary administration of
antipsychotic medication.
10
thinking had become “more flexible” and he was willing to admit his
understanding of the law was limited and that he should consider the advice
of counsel.
After Dean’s competency was again restored, he continued to barrage
the trial court with correspondence. In September 2021, Dean made a motion
under People v. Marsden (1970) 2 Cal.3d 118, to replace his counsel. The
record does not contain any indication concerning the resolution of Dean’s
motion. At a hearing on January 6, 2022, the trial court stated it had
received paperwork indicating Dean wanted to act as his own lawyer.4 After
asking Dean if he understood the general risks associated with self-
representation, the court granted Dean’s Faretta motion. The court made no
inquiry concerning Dean’s competence. Thereafter, Dean continued to
regularly submit ex parte documentation to the court asserting he had been
wrongly convicted.
At a hearing on February 4, 2022, before a different judge, the district
attorney explained Dean continued to insist he was wrongly convicted and his
case should be dismissed. The court stated it was in possession of a lengthy
“common law motion to dismiss” filed by Dean that had not been properly
served on the prosecution. Because it was not properly served, the court
continued the hearing for 30 days and also denied Dean’s request for
additional hours for his appointed investigator.
At a subsequent hearing on April 4, 2022, this time before the judge
who presided over Dean’s trial (Hon. Jeffrey J. Prevost), Dean argued his
motion to dismiss on various grounds. In essence, he contended the jury’s
verdict had been based on wrongdoing by the prosecutors and witnesses. The
prosecutor responded that Dean’s motion was improper, and that he had not
4 The judge at this hearing had never presided over Dean’s case before.
11
presented any basis for the court to reconsider the jury’s verdict after the
guilt phase of trial. The court denied Dean’s motion.
Then, on June 6, 2022, at a trial readiness conference, before Judge
Prevost, Dean argued his case should be dismissed “due to lack of speedy trial
violation.” He also stated if his motion to dismiss were again denied, he
intended to seek diversion, and if that was denied, he would “pull [his] plea
under People versus Kelly and have the court sentence [him] on no valid
conviction.” After the court denied Dean’s motion to dismiss and some
discussion concerning Dean’s requests for various documents from the
prosecutor, Dean withdrew his not guilty by reason of insanity plea, and
asked the court to “go ahead and sentence me on the conviction that was
fixed to convict me.” Dean also asked the court to construe his motion to
dismiss as an “amended Romero” and “find that not one valid conviction is
actually valid through legal means.”
When the court asked Dean if he understood that he had a right to trial
on the issue of his sanity at the time of the crimes, Dean responded with a
lack of understanding about the situation he was in. He told the court, “I’m
not wanting to go to a sanity portion when the guilt phase was malfeasance,
mischaracter of justice. ... It is obvious before the Court there was a
malfeasance and pollution and corruption by the district attorney and trial
defense to wrongfully convict me.” The court then pressed Dean on his
understanding of his rights, both to a trial and to be represented by counsel.
Dean responded that he understood, but also stated he wanted “to bring to
the court’s attention that there is not one valid confession” and no “valid
evidence” linking him to the crimes. The court granted Dean’s request to
withdraw his plea, and set a sentencing hearing for June 29, 2022.
12
At the sentencing hearing, Judge Prevost indicated he wanted to
address the issue of mental health diversion pursuant to this court’s
directions on remand, which the court stated had “kind of escaped [the]
attention” of the trial court and parties. Dean agreed with the court, and
stated that he was seeking diversion. The prosecutor asserted that because
Dean had made “no official application for mental health diversion,” the issue
was waived. The trial court found there was no waiver, ordered an
evaluation for Dean under section 1001.36 to assess his eligibility for mental
health diversion, and set a hearing for July 5, 2022.
The diversion hearing was then delayed by Dean’s repeated requests
for continuances. On July 22, 2022, and August 23, 2022, Dean filed letters
with the court titled “Amendment to Reinstate 6-06-22 Plea of N.G.I.,” in
which he stated he would “replea” to not guilty by reason of insanity “to
legally participate in diversion if court doesn’t reverse/dismiss guilt phase
illegal conviction with prejudice.” On August 15, 2022, the prosecution filed
an opposition to mental health diversion asserting Dean could not meet his
burden to show his eligibility for diversion under section 1001.36. At a
hearing the same day, the trial court again appointed a different doctor to
examine Dean for mental health diversion and to furnish a report to the
court.
On September 15, 2022, and September 26, 2022, Dean filed a “Motion
to Withdraw Diversion.” Therein, Dean stated he was withdrawing his
request for diversion because the court refused to dismiss the convictions
even though the guilt phase was “illegally fixed.” He also stated his case
should be “a dismissal or alternative a 100% illegal sentence.” On the same
dates, Dean filed Romero motions seeking to dismiss his prior strike
convictions.
13
By the time of a court hearing on November 14, 2022, the court had yet
to receive a report from the appointed psychologist on Dean’s eligibility for
mental health diversion. As a result, the court continued the hearing. The
report was finally received on January 4, 2023. The report explained that
Dean was currently suffering from mental illness, though the psychologist
noted she was not provided with reliable details of Dean’s mental health
history or the specific circumstances of his crimes. She opined that Dean met
four of the five criteria for mental health diversion under section 1001.36: he
suffered from a designated mental health disorder; his disorder played a
significant role in the commission of the charged offenses; his symptoms
motivating the criminal behavior would respond to treatment; and he
consented to complying with treatment as a condition of diversion. However,
she concluded Dean did not satisfy the fifth criteria, whether Dean posed an
unreasonable risk of danger to the public if treated in the community,
because of his “level of irritability” and current symptoms. She opined Dean
needed treatment in a “locked, supervised setting,” and that he had admitted
to engaging in violence on several occasions during his incarceration.
At a hearing two days later, the trial court denied Dean’s request for
mental health diversion. The court adopted the opinion of the evaluating
psychologist, concluding Dean satisfied four of the five criteria for diversion,
but that he was ineligible because he posed an unreasonable risk of danger if
treated in the community. The court also denied Dean’s Romero motion. At
the conclusion of the hearing, the court set Dean’s sentencing hearing for
January 27, 2023.
At the sentencing hearing, Dean objected to proceeding with
sentencing, repeating the arguments he made time and again that he was
wrongly convicted and that his rights had been violated throughout the
14
proceedings. The court overruled Dean’s objections. The court heard a victim
impact statement from Dean’s father, who told the court his son’s mental
health issues caused the crimes and that Dean never should have been
prosecuted. The prosecutor recommended Dean be sentenced to 19 years in
state prison. The trial court adopted the prosecutor’s recommendation and
sentenced Dean to 19 years in prison consisting of the upper term of six years
for Dean’s residential burglary conviction (count 3), doubled to twelve years
because of Dean’s prior strike, and one-third the midterm of three years for
the assault conviction (count 2), doubled to two years for the deadly weapon
enhancement, plus five years for Dean’s serious prior felony enhancement.
Finally, the court ordered the prior prison term enhancements stricken.
Dean timely appealed from the judgment of conviction.
DISCUSSION
Dean asserts the trial court erred by permitting him to represent
himself and that this error was prejudicial per se. The Attorney General
agrees the court erred by allowing Dean to proceed in pro per when the court
granted his third Faretta motion on January 6, 2022 and that substantial
evidence of his mental instability should have triggered competency
proceedings.
The parties, however, slightly disagree on the appropriate remedy this
court should provide. Dean argues we can retroactively determine he was not
competent to represent himself based on the appellate record. In the
alternative, he argues the trial court should retrospectively assess his
competency on remand. He also asserts that if the trial court conducts a
retrospective assessment and concludes Dean was competent to represent
himself, “the judgment may be affirmed.” Confusingly, however, he also
asserts that to preserve his right to a fair trial, he should not be permitted to
15
represent himself on remand because Dean has recently indicated in letters
to this court that he believes no lawyer can adequately represent him and
only he will be able to persuade the trial court he was wrongly convicted at
the guilt phase of his trial.5
The Attorney General asserts the proper remedy is a “conditional
reversal so the trial court can consider the feasibility of holding a
retrospective competency trial.” (People v. Wycoff (2021) 12 Cal.5th 58, 92.)
The People assert that if it is feasible to place Dean “ ‘in a position
comparable to the one he would have been placed in prior to the’ ” sanity
trial, “then a retrospective competency hearing [could] occur with no due
process violation.” If a retrospective competency hearing is not feasible, or if
Dean proves his incompetency at such a hearing, the Attorney General
contends the matter should be reversed and the sanity phase retried. On the
other hand, if Dean is found competent at a retrospective competency
proceeding, the judgment should be reinstated.
We agree with the parties that the trial court erred by granting Dean’s
third Faretta motion. As for the remedy, as we shall explain, we conclude a
retrospective competency hearing is not feasible. Therefore, we reverse the
judgment of conviction and, if Dean is presently competent, direct the trial
court to proceed to consider Dean’s eligibility for mental health diversion
under section 1001.36 and then, if necessary, to proceed to the sanity phase of
trial.
5 Dean submitted several letters to this court seeking to terminate his
appellate counsel and proceed in pro per. His appellate counsel filed a motion
to augment the record with one such letter. The motion to augment is
denied. (See In re K.M. (2015) 242 Cal.App.4th 450, 456 [“The augmentation
procedure cannot be used to bring up matters occurring during the pendency
of the appeal because those matters are outside the superior court record.”].)
16
I
Legal Standards
“A defendant has a federal constitutional right to the assistance of
counsel during all critical stages of a criminal prosecution.” (People v. Mickel
(2016) 2 Cal.5th 181, 205 (Mickel); see Faretta, supra, 422 U.S. at p. 807.) “A
defendant may also waive this right and personally represent him- or herself,
so long as the defendant’s waiver of the right to counsel is valid.” (Mickel, at
p. 205.) “A valid waiver requires that the defendant possess the mental
capacity to comprehend the nature and object of the proceedings against him
or her, and that the defendant waive the right knowingly and voluntarily.”
(Ibid.) “If a defendant has validly waived the right to counsel, a trial court
must grant a defendant’s request for self-representation.” (Ibid.)
The California Supreme Court recently reiterated the standard for
waiving counsel: “A two-part inquiry determines whether a defendant may
waive the right to counsel: (1) The defendant must be competent to stand
trial, and (2) the trial court must ‘satisfy itself’ that the waiver of
‘constitutional rights is knowing and voluntary.’ ” (People v. Waldon (2023)
14 Cal.5th 288, 307 (Waldon).)
“Section 1367 of the Penal Code, incorporating the applicable
constitutional standard, specifies that a person is incompetent to stand trial
‘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.’ ” (People v. Rodas
(2018) 6 Cal.5th 219, 230–231 (Rodas).) “When there is reason to doubt a
defendant’s mental capacity to waive counsel, the court’s determination
should be made after a careful inquiry into the defendant’s competence,
17
including consideration of psychiatric evidence.” (Waldon, supra, 14 Cal.5th
at p. 307.)
Further, the United States “ ‘Constitution permits judges to take
realistic account of the particular defendant’s mental capacities by asking
whether a defendant who seeks to conduct his own defense at trial is
mentally competent to do so. That is to say, the 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.’ ([Indiana v.]
Edwards [(2008) 554 U.S. 164,] 177–178.) The [United States Supreme
Court] call[s] those defendants competent to stand trial but not to represent
themselves ‘gray-area defendants.’ ” (People v. Johnson (2012) 53 Cal.4th
519, 527 (Johnson).) “[T]he standard that trial courts considering exercising
their discretion to deny self-representation should apply is simply whether
the defendant suffers 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.)
If the defendant is competent to represent himself or herself, “[n]o
particular form of words is required in admonishing a defendant who seeks to
waive counsel and elect self-representation.” (People v. Koontz (2002) 27
Cal.4th 1041, 1070.) Rather, a “ ‘defendant seeking to represent himself
“should be made aware of the danger 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.’ ” ’ ” (People v. Burgener (2009)
46 Cal.4th 231, 240–241.) The test is whether “ ‘the record as a whole shows
that the defendant understood the dangers of self-representation.’ ” (Id. at
p. 241.)
18
In addition, the “defendant ‘should at least be advised 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.’ ”
(People v. Sullivan (2007) 151 Cal.App.4th 524, 546 (Sullivan).) The
defendant “ ‘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.’ ” (Ibid.)
“The trial court’s determination regarding a defendant’s competence
must be upheld if supported by substantial evidence.” (Johnson, supra, 53
Cal.4th at p. 531.) Whether a waiver is knowing and voluntary is reviewed
de novo and requires an examination of the entire record. (Mickel, supra, 2
Cal.5th at p. 205.) The burden is on the defendant to demonstrate he did not
knowingly and intelligently waive his right to counsel. (Sullivan, supra, 151
Cal.App.4th at p. 547.)
II
Analysis
As stated, the parties agree the trial court erred by failing to declare a
doubt concerning Dean’s competence before allowing him to represent himself
at the third Faretta hearing, and so do we. As the Attorney General points
out, Dean has a lengthy history of severe mental illness, a pattern of
regaining competency and then again becoming incompetent, and there were
significant signs that he was not competent at the time the trial court
19
permitted him to again represent himself on January 6, 2022, and thereafter.
As stated, “[w]hen there is reason to doubt a defendant’s mental capacity to
waive counsel, the court’s determination should be made after a careful
inquiry into the defendant’s competence, including consideration of
psychiatric evidence.” (Waldon, supra, 14 Cal.5th at p. 307.) No such inquiry
was made here.
“If, after a competency hearing,” as here, “the defendant is found
competent to stand trial, a trial court may rely on that finding unless the
court ‘ “is presented with a substantial change of circumstances or with new
evidence” casting a serious doubt on the validity of that finding.’ ” (Rodas,
supra, 6 Cal.5th at p. 231.) In this case, at the time of the third Faretta
motion hearing, and in the months leading up to that hearing, Dean
submitted hundreds of pages of documents to the court that cast doubt on his
mental competence. Further, Dean’s history of gaining competence and
decompensating in the years after the guilt phase of trial, placed the trial
court on notice that his competency was unstable. (See id. at p. 238 [“the
evidence before the court went beyond a simple report that defendant was
speaking or acting bizarrely; against the background of medical reports
detailing defendant’s history of schizophrenia and the importance of
medication in controlling his symptoms, [defense] counsel’s report raised a
reasonable doubt as to defendant’s continued competence”].) As the parties
agree, the trial court erred by granting the Faretta motion without engaging
Dean at all about his mental state.
The trial court judge who granted the motion, Honorable Jorge C.
Hernandez, had not presided over Dean’s case before that day. At the
hearing, after Dean’s counsel made his appearance on the record, the court
stated it had received paperwork indicating Dean wanted to represent
20
himself. The trial court then asked Dean about his understanding of the
risks associated with self-representation, and then specifically asked whether
he understood no standby counsel would be provided, and that he would be
expected to know the rules of court, how to make pretrial motions, pick a
jury, make opening statements, cross-examine witnesses, subpoena and
present witnesses, make objections, ask for jury instructions, and make a
closing argument. To these two questions, Dean responded simply “Yes, sir.”
and “Yes. I do, sir.”
The trial court then explained that Dean could not file correspondence
ex parte and that although the court had seen a recent submission by Dean,
he would not read it until the People were served. After informing Dean the
court would appoint an investigator to assist him with filing of documents,
the trial court granted his request to proceed in pro per and relieved his
appointed counsel. Dean then asked the court for copies of some of his
previous filings. The trial court responded, “I looked at the history of your
case, I saw that you filed close to – maybe I’m exaggerating – it looked like
30, 40 different correspondence” and then stated the court would not make its
clerk Dean’s secretary.
Whether Judge Hernandez was aware of Dean’s mental health history
is unclear on this record. However, there was significant evidence before the
court that should have prompted inquiry into Dean’s competence to waive
counsel. The judge’s brief explanation and questioning of Dean’s
understanding of the right to counsel he was waiving entirely failed to
address Dean’s competence to waive that right, or to present a defense at his
sanity trial. Given Dean’s extensive documented history of mental
impairment, this was clear error. (Waldon, supra, 14 Cal.5th at pp. 309–310,
citing Indiana v. Edwards (2008) 554 U.S. 164, 176–177; Johnson, supra, 53
21
Cal.4th at p. 533.) At minimum, the record suggests that at the time the
motion was granted Dean was “suffer[ing] from a severe mental illness to the
point where he ... [could not] carry out the basic tasks needed to present [an
insanity] defense without the help of counsel.”6 (Johnson, at p. 530.)
III
Remedy
As discussed, the parties provide slightly different variations on the
proper disposition of the case. In Rodas, the California Supreme Court
considered the appropriate remedy for the type of error here, “sometimes
referred to as Pate [v. Robinson (1966) 383 U.S. 375, 385–386] error—that is,
a court’s due process error in failing to suspend criminal proceedings and
determine the defendant’s competence.” (Rodas, supra, 6 Cal.5th at p. 238.)
In Rodas, the trial court erred by failing to institute competency proceedings
prior to trial even though defendant’s counsel declared a doubt and the
defendant exhibited clear symptoms of mental incompetence. (Id. at p. 223.)
Like here, Rodas had been previously found incompetent in the same
criminal proceeding. (Ibid.) Also like this case, the Attorney General argued
in Rodas that the court should “order the case remanded to the trial court for
a hearing to determine whether defendant was in fact competent at the time
of his trial.” (Id. at p. 238.)
6 Dean also argues the court erred by granting his second Faretta motion
on November 19, 2020. The Attorney General responds that because Dean
had been recently found competent at that time, and the court gave a much
more thorough Faretta warning, there was no error. Because we agree with
the parties that Dean’s third Faretta motion was improperly granted and
reverse the judgment of conviction, we decline to reach this moot issue. (See
In re Arroyo (2019) 37 Cal.App.5th 727, 732 [“ ‘ “[a] case becomes moot when
a court ruling can have no practical impact” ’ ”].)
22
Without deciding whether such a retrospective competency hearing was
ever an appropriate remedy for Pate error, the high court concluded it was
not available in the case before it because “ ‘the inherent difficulties of such a
nunc pro tunc determination’ [citation] [could] not be overcome under the
circumstances of the case.” (Rodas, supra, 6 Cal.5th at p. 239.) The court
explained “the critical question in determining whether a retrospective
competency hearing is feasible is whether there is ‘sufficient evidence to
reliably determine the defendant’s mental competence when tried earlier.’
[Citation.] The burden of proof in a retrospective hearing is on the defendant,
and feasibility requires finding that such a hearing ‘will provide defendant a
fair opportunity to prove incompetence, not merely [that] some evidence
exists by which the trier of fact might reach a decision on the subject.’ ”
(Rodas, at pp. 239–240.)
Further, Rodas noted that “[s]everal factors might bear on this inquiry”
but in the case before it, the “dominant considerations [were] the fluctuating
nature of defendant’s symptoms, the passage of time, and the lack of
contemporaneous expert evaluations.” (Rodas, supra, 6 Cal.5th at p. 240)
The court held that “[t]o saddle defendant with the burden of proving his
incompetence ... around five years after the fact, without the benefit of any
contemporaneous psychiatric, psychological, or neurological evaluation,
would neither be fair nor produce a reliable result.” (Id. at p. 240.) “Had the
trial court declared a doubt about competence [before trial], the court would
have appointed two experts to examine defendant and report on aspects of his
mental condition relevant to competence, as well as the appropriateness of
medical treatment for any condition found. (Pen. Code, § 1369, subd. (a).) ...
A retrospective hearing, in contrast, would presumably require an attempt by
psychologists or psychiatrists to reconstruct defendant’s mental condition at
23
trial based on the prior medical reports and defendant’s behavior at the time
of trial.” (Id. at pp. 240–241.)
The Rodas court noted that the “most recent expert evaluation,” from
almost a year before the trial, “tied defendant’s competence to continuation of
his medication. Given the showing that by [trial the] defendant had long
since stopped taking his medication and had suffered a significant relapse
into a more florid psychotic condition, it is difficult to see how a psychologist
or psychiatrist appointed to make a retrospective evaluation could reliably
find defendant was nonetheless competent at the time of trial.” (Rodas,
supra, 6 Cal.5th at p. 241.) The court thus concluded, “[u]nder the particular
circumstances of this case, at a distance of around five years and without any
expert evaluations from the time of trial, we do not believe the trial court
could fairly come to a reliable conclusion that defendant was competent at
that time.” (Ibid.)
Likewise here, given the passage of time and the lack of any
contemporaneous evaluation of Dean’s mental health at the time of the third
Faretta hearing, conducting a retrospective competency hearing is simply not
feasible. The most recent psychological competency examination conducted of
Dean, which supported his restoration to competency in August 2021, was
prepared on July 29, 2021, six months prior to the Faretta hearing.7 Like the
defendant in Rodas, that report showed that Dean’s mental health was good
at that time, but—especially in conjunction with Dean’s long history of severe
mental illness—suggests the stability was a result of forced antipsychotic
medication while he was committed to the DSH. The record suggests that by
the time of the Faretta hearing, Dean’s mental state had decompensated
7 Dean was evaluated in late 2022 for purposes of mental health
diversion, but the reviewing psychologist did not consider Dean’s competency
to stand trial or represent himself.
24
likely because he was no longer taking that medication. “Under the
particular circumstances of this case, at a distance of [almost three and a half
years after his most recent psychological competency evaluation] and without
any expert evaluations from the time of [the Faretta hearing], we do not
believe the trial court could fairly come to a reliable conclusion that
defendant was competent at that time.” (Rodas, supra, 6 Cal.5th at p. 241.)
Accordingly, we conclude a retrospective competency “hearing would not
supply an adequate remedy.” (Ibid.) If on remand, the trial court declares a
doubt as to Dean’s competency, any expert appointed to evaluate Dean should
specifically consider his competency to stand trial and to represent himself,
and also whether Dean can maintain his competency while not in the care of
the DSH.
25
DISPOSITION
We reverse the judgment of conviction. On remand, if Dean is
presently competent, the trial court is directed to consider Dean’s eligibility
for mental health diversion in accordance with section 1001.36 and, if
necessary, proceed to the sanity phase of trial. If after remand a doubt is
declared as to Dean’s competency, any expert appointed to evaluate Dean
should specifically consider his competency to stand trial and to represent
himself, and also whether Dean can maintain his competency while not in the
care of the DSH.
McCONNELL, P. J.
WE CONCUR:
O’ROURKE, J.
DATO, J.
26