People v. Sumler CA2/8

Filed 12/21/20 P. v. Sumler CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B304018
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA459155)
v.
ELAJAH SUMLER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Mark S. Arnold, Judge. Affirmed.
Michelle T. LiVecchi-Raufi, under appointment by the
Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Wyatt E. Bloomfield and Michael C. Keller,
Deputy Attorneys General, for Plaintiff and Respondent.
**********
A jury found defendant and appellant Elajah Sumler guilty
of damaging jail property and found true the allegation the
damage was in excess of $950. Defendant does not challenge the
evidence in support of his conviction or raise any trial errors.
Rather, he challenges only two pretrial rulings from
September 27, 2019: the trial court’s order finding him
competent to stand trial and the court’s order revoking his right
to represent himself.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
While in custody at the Twin Towers Correctional Facility,
defendant yelled at a deputy from inside his cell and threatened
to “gas” him (throw feces, urine or other bodily fluid). When the
deputy began to tape plastic up on the cell door to prevent fluids
from passing through, defendant repeatedly kicked the lower
glass panel in the door, cracking it. The glass used to repair the
window was a type of shatter-resistant glass specially approved
by the California Department of Corrections and Rehabilitation
for use in custodial facilities and the total cost of repair was in
excess of $1,700. Defendant denied threatening to gas the deputy
or having any intent to break the window, although he admitted
kicking it several times.
Defendant was charged with one felony count of damaging
jail property in violation of Penal Code section 4600,
subdivision (a). It was alleged the damage was in excess of $950.
It was also alleged defendant had suffered three prison priors
(§ 667.5. subd. (b)). The prison priors were subsequently
dismissed.
At the preliminary hearing, defendant’s request to
represent himself was granted.
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At the next hearing, the court told defendant it appeared
advisable for standby counsel to be appointed. Defendant said if
that was to occur, he would want his attorney in two other
pending cases, Deputy Alternate Public Defender Alissa Sterling,
to be appointed in that capacity. Defendant also complained to
the court he was not being provided with necessary materials in
custody to represent himself. The court said the fact he was in
the high observation housing unit was complicating the process.
No appointment of standby counsel was made at that time.
On June 21, 2019, defendant reiterated his complaint about
not having access to what he needed to represent himself and
that the deputies at the jail were using his “mental health status”
against him. Defendant said he had been prescribed Seroquel (an
antipsychotic medication) but was refusing to take it. He told the
court, “You hear I am talking I am cognitive. [¶] I am not
hallucinating. They are trying to make it seem like I am not
eating as much as we are going to take away your rights and try
to make me incompetent. Whatever they are trying to do.” The
court addressed several other medical requests by defendant,
including that the jail provide him with vegan meals.
On July 8, 2019, defendant again said he was not able to
get the resources he needed in jail to represent himself, that he
still was not being provided a vegan diet and that he needed help
subpoenaing his medical records for trial. The court explained
that defendant was responsible for sending his own subpoena. At
defendant’s request, the case was continued to August.
In August 2019, defendant reported to the court that his
two other cases might be resolved. Defendant agreed to waive
time again and the case was put over for another 30 days.
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On September 10, 2019, Attorney Sterling, who
represented defendant in his two other cases, appeared at the
hearing with defendant. The court asked defendant about his
refusal to come to court earlier in the day. Defendant denied
refusing and said the deputies told him the appearance had been
canceled and would not transport him. Defendant then listed
various complaints about his custody status and various medical
issues, including a claim that he had been pepper-sprayed in the
face.
The court made reference to some sort of homemade glasses
defendant was wearing in court. Defendant responded, “I walk
by faith and not by sight, so these glasses are not deterring my
view in the slightest. My view is only deterred basically because
I got pepper sprayed directly in my eyes. I could see out of these
glasses, that’s why I made them. I have crafted them specifically
to be seen out of.”
The court noted defendant’s “bizarre[]” manner of clothing.
Defendant first indicated it was for his religion and then later
said, “I do fashion, so then, like, you know, like, let’s say I wanted
to create my defense—part of my defense, just make my own
style, you know, because we use civilian clothes during trial. So
it’s like instead of wearing civilian clothes, this is kind of the
epitome of me correlating everything I’ve seen and learned since
I’ve been in jail all together, based upon the style I had input on.
It’s called infinite style.”
The court asked defendant to allow Ms. Sterling to be
appointed to represent him. Defendant made a somewhat
rambling statement and said he no longer wanted her to
represent him in any of his cases, apparently because she had
declared a doubt as to his competency in those cases. Defendant
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said he wanted a hearing pursuant to People v. Marsden (1970)
2 Cal.3d 118.
Defendant said, in part, that the “specific things that I
want to be conveyed because proof of my innocence with every,
you know, piece of evidence. I wanted to suppress all evidence
because she didn’t want to testify about certain stuff and make
them testify and provide documents to prove certain stuff that I
wanted to compel. And then if they were to leave out anything, I
was going to file a motion to dismiss the case based upon
destruction of evidence because I feel like every piece of
testimony, everything that they say in that police report they
have to testify and provide proof—everything that you’re saying.
But they’re not—and she didn’t want to do that in trial.”
Ms. Sterling advised the court that a doubt had been
declared as to defendant’s competence in his other cases and that
a psychiatrist familiar with defendant from previous evaluations
(Dr. Chen) had been appointed to evaluate defendant again. She
also said that proceedings had been suspended all of last year in
those cases for mental health reasons.
The court agreed to entertain defendant’s request for a
Marsden hearing and cleared the courtroom. Defendant again
made various rambling statements. The court interjected and
said defendant was not making any sense, “You’re
incomprehensible.” The court repeated its concern about
defendant’s competence based on his rambling, rapid speech and
his tendency to jump from subject to subject without completing a
coherent thought. The court told defendant he had not identified
anything that “impinge[d] on Ms. Sterling’s ability to effectively
represent [him].” The court said it wanted to know what the
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psychiatrist had to say before it would revoke defendant’s in
propria persona status.
Once back on the record, the court ordered the criminal
proceedings suspended pending the completion of Dr. Chen’s
report. Defendant asked if he was being evaluated again for his
competence and the court said yes. Defendant responded, “Oh,
okay. I appreciate that. I sometimes—I don’t feel like I’m all
that competent as well. Sometimes.”
The parties returned on September 27, 2019. Ms. Sterling
appeared with defendant and confirmed with the court that
Dr. Chen, the appointed psychiatrist, had evaluated defendant
and stated her opinion that he was competent to stand trial. The
court reinstated criminal proceedings. Ms. Sterling told the court
that defendant wanted the case set for trial.
The court appointed Ms. Sterling as counsel for defendant
in the present case. Defendant interrupted and said “[y]ou’re
revoking my pro per status?” The court said it was and explained
that a finding of competence to stand trial is different than
competence to represent oneself at trial. Defendant responded,
“All right. Well, that’s fine.”
When the parties returned for pretrial on October 31, 2019,
the court said it wanted to clarify for the record the grounds for
denying defendant’s in propria persona status. The court
explained, “I reviewed the court file in its entirety, including a
report from Dr. Chen, C-H-E-N. The defendant has serious,
major mental illness, specifically bipolar disorder. He was found
incompetent on July the 1st of 2017. He was hospitalized on
July 23rd for being gravely disabled and a danger to himself. He
thought the FBI and the L.A. County Sheriff’s Department were
out to get him. [¶] He was incompetent for the periods of
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November 13, 2017 through December 12, 2017; April 23, 2018
through June the 4th, 2018; September 18th, 2018 through
December 24th of 2018. [¶] As of August the 13th of 2019,
[defendant] has been diagnosed with anti-social personality
disorder, unspecified impulse control disorder, and unspecified
mood disorder. [¶] Also, my experiences with him, he just
rambles from subject to subject.” The court also noted that
defendant had refused to come to court and was present in a
restraint chair. The court said that because of defendant’s
mental health status and the way he behaves, it did not believe
defendant was competent to represent himself even though he
was competent to stand trial.
Defendant again denied he had refused to come to court
and that he was not in a restraint chair but just a regular
wheelchair because of a problem with his leg.
The court asked about whether there was an offer by the
prosecution. Ms. Sterling said the prosecution offered to resolve
all three cases if defendant pled to a violation of Penal Code
section 69 and did ODR but defendant refused. Ms. Sterling said
she did not make a counteroffer because there was no offer she
could propose that would have been better than what the
prosecution offered.
The case was tried to a jury in December 2019. The jury
found defendant guilty as charged. The court sentenced
defendant to the midterm of two years in county jail. Defendant
was given credit for 730 days of presentence custody credits and
ordered released for time served. The court ordered restitution in
the amount of $1,692.63.
This appeal followed.
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DISCUSSION
Defendant contends the trial court erred both in finding
him competent to stand trial and in revoking his right to
represent himself.
A defendant is presumed competent to stand trial, unless
the contrary is established by a preponderance of the evidence.
(People v. Campbell (1976) 63 Cal.App.3d 599, 608; see also Pen.
Code, § 1369, subd. (f).) “A defendant is deemed incompetent to
stand trial if he lacks ‘ “ ‘sufficient present ability to consult with
his lawyer with a reasonable degree of rational understanding . . .
[or] a rational as well as factual understanding of the proceedings
against him [or her].’ ” ’ ” (People v. Lightsey (2012) 54 Cal.4th
668, 690, second brackets added; accord, People v. Mickel (2016)
2 Cal.5th 181, 194–195; see also § 1367, subd. (a).)
In reviewing a finding of competency, we are governed by
the substantial evidence test. (People v. Marshall (1997)
15 Cal.4th 1, 31 (Marshall).) Viewing the evidence in the light
most favorable to the court’s ruling, we conclude there is
substantial evidence supporting the competency finding.
At the hearing on September 27, 2019, defense counsel
confirmed with the court that a report had been prepared by
Dr. Chen and submitted to the court. Ms. Sterling said the
doctor’s opinion “is that at this time [defendant] is competent to
proceed forth with trial.” The court reinstated criminal
proceedings and asked how defendant wished to proceed.
Defendant indicated a desire to immediately proceed with setting
a trial date. The court and counsel then discussed setting dates
in all three of defendant’s pending cases. The court’s minute
order for that date states that “[t]he court finds that the
defendant is presently mentally competent to stand trial within
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the meaning of Penal Code section 1368 . . . . Criminal
proceedings resumed.”
The Supreme Court in People v. Marks (1988) 45 Cal.3d
1335, 1343 explained that “no ‘magic words’ are required of the
trial court” in making a competency finding and resuming
proceedings. But, a trial court must “expressly and unmistakably
state on the record, either orally or in writing, its determination
as to whether the defendant is mentally competent to stand
trial.” (Ibid., italics omitted.) Defendant contends the trial court
did not review and evaluate the expert’s report before declaring
him competent but instead relied on defense counsel’s
representation concerning the expert’s conclusion that defendant
was competent.
We agree with defendant the record of proceedings on
September 27, 2019, suggests the court had not read the expert’s
report but simply received it from defense counsel that day.
Defense counsel said, “Dr. Chen has written a report. I provided
a copy to the court to be placed in an envelope under seal.” We
also recognize that in a busy criminal courtroom where the same
counsel frequently appear before the same judge, many
preliminary proceedings are not reported on the record; and after
going on the record, counsel and the court may use familiar
“shorthand” language to summarize the informal proceedings
held just before going on the record. Since defense counsel gave
the unsealed report to the court, it may be the case that the court
reviewed it before going on the record.
Even if the court did not read the report before going on the
record on September 27, 2019, substantial evidence supports the
court’s finding that defendant was competent to stand trial. The
court had observed defendant at several hearings dating back
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several months to early July 2019 that raised the court’s concerns
about his competency. Upon being advised that a psychiatrist
had already been appointed in defendant’s other pending
criminal cases to render an opinion on competency, the court
suspended proceedings and prudently awaited the expert’s report
before concluding it was reasonable and appropriate to reinstate
criminal proceedings. Additional support for the court’s decision
was provided by the court’s clarifying statement made at the
subsequent hearing on October 31, 2019, at which the court
stated it had read Dr. Chen’s report and reviewed the entire file,
after which the court made a long and full record of why it had
revoked defendant’s in propria persona status. The court’s
October 31, 2019 findings also support its competency finding.
The record also supports the trial court’s ruling revoking
defendant’s in propria persona status.
In Indiana v. Edwards (2008) 554 U.S. 164, 177–178
(Edwards), the high court held the “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 under Dusky
[v. United States (1960) 362 U.S. 402] but who still suffer from
severe mental illness to the point where they are not competent
to conduct trial proceedings by themselves.”
Subsequently, in People v. Johnson (2012) 53 Cal.4th 519,
528 (Johnson), our Supreme Court held that “trial courts may
deny self-representation in those cases where Edwards permits
such denial.”
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Johnson instructs that the standard trial courts should
employ when considering whether to deny or revoke self-
representation “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.” (Johnson, supra, 53 Cal.4th at p. 530.) In
resolving this question, trial courts may, but are not required to,
“order a psychological or psychiatric examination to inquire into
that question.” (Ibid.) Johnson advised trial courts to be
cautious about denying self-representation without the benefit of
an expert evaluation, but explained that a judge’s “ ‘own
observations of the defendant’s in-court behavior will also provide
key support for an incompetence finding and should be expressly
placed on the record.’ ” (Id. at pp. 530–531.)
In this regard, substantial deference is appropriately
shown to a trial judge’s decision to revoke a defendant’s in
propria persona status especially “when, as here, the same judge
has observed the defendant on numerous occasions.” (Johnson,
supra, 53 Cal.4th at p. 531.) A trial judge “ ‘will often prove best
able to make more fine-tuned mental capacity decisions, tailored
to the individualized circumstances of a particular defendant.’ ”
(Id. at p. 532, quoting Edwards, supra, 554 U.S. at p. 177.)
Here, the court had observed defendant’s behavior at
numerous hearings and repeatedly expressed concern about his
incoherent statements, rapid speech, disorganized thoughts,
bizarre behavior (such as wearing peculiar clothing, singing as he
arrived in court and again as he left court)—concerns supported
by our review of the record. While the court did not appoint an
expert to render an opinion specifically on defendant’s ability to
represent himself, the court nonetheless waited for the report
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from Dr. Chen before making the decision to resume criminal
proceedings and revoke defendant’s in propria persona status
before trial began.
We do not believe the trial court was dismissive of
defendant’s Sixth Amendment right to represent himself.
Rather, given the court’s stated concerns about defendant’s
mental status, the court’s decision to revoke was in accord with
the concerns expressed in Edwards: “[A] right of self-
representation at trial will not ‘affirm the dignity’ of a defendant
who lacks the mental capacity to conduct his defense without the
assistance of counsel. [Citation.] To the contrary, given that
defendant’s uncertain mental state, the spectacle that could well
result from his self-representation at trial is at least as likely to
prove humiliating as ennobling. Moreover, insofar as a
defendant’s lack of capacity threatens an improper conviction or
sentence, self-representation in that exceptional context
undercuts the most basic of the Constitution’s criminal law
objectives, providing a fair trial.” (Edwards, supra, 554 U.S. at
pp. 176–177.)
DISPOSITION
The judgment of conviction is affirmed.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
STRATTON, J.
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