Opinion
C081557
07-18-2017
THE PEOPLE, Plaintiff and Respondent, v. LANCE MICHAEL CORDERO, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. MCYKCRBF131573)
Defendant Lance Michael Cordero received a grant of three years' probation based on his plea of no contest to possession of a firearm while under the influence of methamphetamine, driving on a suspended license with a prior conviction of the same offense, and driving under the influence of a drug. Before the trial court imposed sentence, defendant moved to represent himself in order to withdraw the plea. (Faretta v. California (1975) 422 U.S. 806 (Faretta).) After a hearing, the trial court denied the motion, finding defendant was not competent to represent himself and his attempt to do so would likely disrupt the proceedings. (People v. Welch (1999) 20 Cal.4th 701 (Welch).) Defendant appeals from the order denying his motion, having received a certificate of probable cause to do so. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Since defendant's contention does not require a detailed discussion of the underlying facts, we give the following summary taken from the probation report:
On October 27, 2013, a Lake Shastina police officer stopped defendant's vehicle after observing it weave from side to side, then pull abruptly onto the shoulder without signaling. The vehicle's registration had expired, and there was no current registration tag. Defendant's voice was loud and hurried, and his pupils did not constrict when exposed to direct light from the officer's flashlight. Defendant gave rambling responses and claimed he was headed for a destination in the opposite direction. He said his driver's license was suspended and he did not have vehicle insurance or documentation. Dispatch advised the officer defendant was on probation for vehicle theft out of Sacramento County. The officer suspected defendant was on methamphetamine and asked when he had last used it; he denied ever doing so. After verifying defendant's license suspension and arresting him, the officer found a handgun on the passenger seat. A urinalysis proved positive for methamphetamine, and defendant admitted he had smoked it the day before.
Defendant was charged by information with possession of a firearm by a felon (count 1; Pen. Code, § 29800, subd. (a)(1)), being under the influence of methamphetamine with a firearm (count 2; Health & Saf. Code, § 11550, subd. (e)), driving on a suspended license with one prior (count 3; Veh. Code, § 14601.1, subd. (a)), driving under the influence of alcohol or drugs (count 4; Veh. Code, § 23152, subd. (a)), being under the influence of a controlled substance (count 5; Health & Saf. Code, § 11550, subd. (a)), and driving without evidence of financial responsibility (count 6; Veh. Code, § 16028, subd. (a)).
Undesignated statutory references are to the Penal Code.
On November 7, 2013, after a preliminary hearing, the trial court held defendant to answer on all counts. Defendant was represented then and thereafter by the public defender's office.
On June 18, 2014, defense counsel declared a doubt about defendant's competence. (§ 1368.) The trial court suspended proceedings and appointed psychologists Ray Carlson and Kent Caruso to examine defendant. They found him competent to stand trial.
Both psychologists opined that defendant was intelligent, articulate, sophisticated about the legal system, and aware of the nature of the charges against him and their possible consequences. Neither found any signs of psychosis or brain damage. However, both noted that defendant seemed obsessed with alleged long-ago misdeeds against him by corrupt officials in the Sacramento County criminal justice system, appeared to think these alleged events would help him to raise a defense to the current charges, and had potentially unreasonable and unrealistic expectations of what his attorney and the court could do for him. Both agreed that defendant displayed narcissistic, paranoid, and antisocial personality features. Dr. Caruso diagnosed an unspecified personality disorder; Dr. Carlson diagnosed polysubstance abuse.
Both psychologists thought defendant was competent to stand trial because he could understand the nature of the pending charges and the proceedings, and could assist his attorney in a rational manner in the conduct of his defense—the issues on which the trial court had asked their opinions. They were not asked whether defendant was capable of representing himself at trial, and neither stated a view on that subject.
On July 31, 2015, the trial court found defendant competent to stand trial.
On August 4, 2015, defendant pleaded no contest to counts 2, 3, and 4, with all remaining counts and enhancements dismissed, in return for a promise of probation.
On September 9, 2015, defendant appeared for sentencing, but his counsel told the trial court that defendant wanted to withdraw his plea because of inadequate representation and a Marsden hearing would be needed. After the hearing, the court denied defendant's Marsden motion. The court instructed defense counsel to file a motion to withdraw the plea if counsel thought it had merit.
People v. Marsden (1970) 2 Cal.3d 118.
On September 30, 2015, defendant told the trial court that he was not ready to go forward with sentencing. Defense counsel stated that defendant had not yet explained why he wanted to withdraw his plea. The court continued the matter to October 28, 2015.
On October 26, 2015, defendant filed a motion to withdraw his plea in propria persona. On October 28, 2015, defendant refiled the motion.
On the morning of October 28, 2015, based on defendant's motion and defense counsel's statement that he had learned of it only the day before, the trial court (Judge Dixon) concluded defendant wanted to represent himself and gave him the required Faretta paperwork, which he executed. Judge Dixon then learned that she had been disqualified on the case by the prosecution pursuant to Code of Civil Procedure section 170.6.
When the hearing resumed with Judge Masunaga presiding, she recapped the lengthy history of the proceedings and noted the People's concerns about the timeliness of defendant's motion. Judge Masunaga then observed that on the Faretta questionnaire, under "education" defendant had put down " 'a lot.' " Defendant stated that after graduating from high school, he had passed a contractor's exam "without buying a book" and obtained a general contractor's license in 1988, had passed a "real estate exam" in 1986, had obtained a federal firearms license and a state liquor license, and had attended two community colleges (the second for "more than one or two or three or four years"). He could answer any question on "just about any topic": "All I do is read and study legal books, construction books, science books."
Immediately afterward, defendant shifted to the alleged wrongdoing in Sacramento County: "I passed a competency test in Sacramento, scored 97 percent, and still flunked it because there is something more going on here, and I can prove that to anyone in five seconds, or five minutes or less, I tell you how to prove it yourself --" He added: "I have been set up by the legal system in Sacramento, forged documents, forged signatures, forged plea agreements, forged fake warrants, when they came to my house and arrested me. [¶] I have been stabbed eleven times by other people that have since then murdered someone else or prior to that -- and stabbed eleven times. My bloody clothes are in the homicide locker. The homicide cops told me they know what the situation is and it's bigger than they can handle."
The homicide detectives told defendant they had found out who stabbed him. "They were trying to hide the concealment that they had shot someone in the face with an AR-15. [¶] After they stabbed me I came back and took their guns and their computers and whatever else because I needed the tape -- audio tape of a federal cop threatening to have someone -- who I don't want to say -- pull my teeth out in public if I didn't shut up and sit down."
After mentioning the firing of a former Sacramento County deputy district attorney (without clarifying his connection to defendant's affairs), defendant jumped to the subject of his allegedly fraudulent sentencing on October 16, 2003. According to defendant, a judge, the district attorney, defendant's counsel, and the clerk of the court swore that he was present in Sacramento County Superior Court on that date, but in fact he was in "Elk County Grove Jail" at the time; thus he was never "duly sentenced as a convicted felon." His signature had been forged on plea agreements. He "was arrested at [his] house with a warrant that was right there from Channel 40 TV, February 19th, 2003, but there is no warrant." He could "prove everything. It's not hard to determine that."
Judge Masunaga asked why all of that was relevant. Defendant answered that the prosecutor "brought it up for an enhancement which entered into this case." Judge Masunaga observed that in entering his plea defendant did not admit any enhancement. Defendant said, "Okay," then repeated what he had already said about the alleged Sacramento County events. According to defendant, "Niemeyer" (the assistant public defender who had formerly represented him in this case) had known about all this for a long time.
Defendant then jumped to September 2011, when Judge Masunaga supposedly "admonished me for speaking for saying I can't get my documents entered into this Court to prove why I am driving without a license and you sent the jury somewhere else --" Defendant added: "You told me, then I said -- you said just because you can't get your documents or your information entered into -- entered into proceedings does not mean that you necessarily did it, and I said, oh, I did it all right. But that's not why I did it."
The felony complaint in these proceedings was filed on October 30, 2013. The preliminary hearing, over which Judge Masunaga presided, took place on November 7, 2013. Thus, the record does not shed any light on these remarks.
Defendant then mentioned an unnamed local case in which he had supposedly been subpoenaed as a witness and threatened by the defendant, but had gotten no help from the local police force after reporting the threat. After that, defendant returned to the Sacramento County conspiracy: "I have audios of a federal cop threatening to have me killed in public if I don't shut up. I have registered complaints with the District Attorney's Office, Internal Affairs, until I'm blue in the face with it. No one will address any of these issues which are more important than any of these, in my perspective. [¶] They forged my documents, they hid my files, I can't get any documentation because if I did -- just the little bit that I have. [¶] And it's black and white. How can I be in this jail and miss this court appearance? How can they say that I was there that week, court appearance, being found guilty of weapons charges, when I was never there and they weren't my weapons? That's why I wasn't there. It would have went right back to where -- in Sacramento." Defendant asserted that he had explained to Niemeyer that he could not get his documents.
Defendant then jumped to the topic of his alleged failure to appear in the present case, on a date when he had been unable to reach the court due to a major fire in Weed. Judge Masunaga responded that the fire happened on or around September 17, 2014, but defendant did not turn himself in until July 31, 2015. Defendant expressed anger that no one from the public defender's office had told the court on the day of the fire that it might keep defendant from getting through. Judge Masunaga observed that defendant's bail bonds agency had evidently been trying to reach him for months to get him to turn himself in. Defendant again cited the local case in which he was allegedly threatened (although he was not sure whether that was before or after his failure to appear). Defendant then stated: "I said if you give me two minutes in the back talking to you in chambers I'll sign guilty to all this if you help me resolve what's happening in Sacramento. There is no place else to go."
So far as the record shows, defendant was not charged in this case with failure to appear.
Judge Masunaga asked: "Do you know why you are here in this case?" Defendant answered: "I'm here because I was forced to, under duress, take a plea because Niemeyer bailed out -- and the last time I saw Niemeyer, I remember it was at the arraignment, you said I need more time. And what happened? He has given me not one single document. Not even one, can I get from Niemeyer. He left town without even letting me know. . . . [¶] I have no representation. I had none. And on that note, might I add, I have never consented to, signed a document, saying that I would accept, in this case, Niemeyer." Judge Masunaga stated that the trial court had appointed the public defender, then started to explain why. Defendant interrupted, asserting that he was not asked whether he would rather represent himself or retain counsel, and he had never signed any document accepting representation by the public defender.
The record does not show that defendant ever objected to representation by the public defender's office prior to his Marsden motion of September 9, 2015, when Niemeyer was no longer on the case.
Reverting to the topic of his failure to appear, defendant claimed he had unsuccessfully tried to get back on calendar the day after. Then he added: "Why am I going to turn myself in and hope that they let me out when I know whatever else they have already done to me? [¶] And what happens to my dog? I don't have a mommy, a daddy, a best friend, or any other things. I make -- every dime I make I make on my own. I could take benefit from the state whatsoever and I certainly don't get any."
Judge Masunaga attempted to clarify that when defendant talked about everybody doing things to him, he was talking about Sacramento County, not the present case. Defendant agreed, but then reverted to his failure to appear and asked why he was the only one who got charged with it that day: "[D]id anyone who retained an attorney who missed that day get a failure to appear? I doubt not. I would call that insufficient lack of professional performance."
After another confusing colloquy during which defendant reiterated his claim that he had entered his plea under duress, the court reporter stated on the record that defendant could not cut off the judge when she was talking. Defendant replied: "I'm sorry. I am so pissed off. I apologize. I'm sorry about that. I can't help myself. Sorry."
Judge Masunaga stated that she was ready to rule. She then denied defendant's Faretta motion on the following grounds:
"I also want to indicate here that the Court, in considering your requests, has also listened to how you are presenting yourself today, what you want to do in your case, the reasons why you think you are here."
After citing the section 1368 evaluations, Judge Masunaga stated that defendant was "saying you are very intelligent and you have gotten all of these licenses and you can do things better in a legal sense than anybody else --" Defendant interrupted, claiming he was not saying that. Judge Masunaga continued: "Excuse me. You are saying that. And I will note that the psychologist was indicating that in terms of how you were presenting to the Court to the point that the attorney had indicated the doubt under PC [section] 1368, was because of the way you were presenting yourself, and how you are talking about other things that you are doing, and one of the things that Dr. Carus[]o indicated was that . . . you are an intelligent man, that you harbor a lot of animosity, generally, towards the system and the legal system, but you also are very demanding, potentially unreasonable and unrealistic, in terms of what you want from your attorney and from the Court."
Overriding defendant's repeated attempts to cut in, Judge Masunaga explained that defendant's motion to withdraw his plea was not before her now: this was only a Faretta proceeding. Judge Masunaga noted that although she was not finding the motion untimely, that was one of the issues to consider. It was also significant that defendant had originally filed his motion to withdraw pro se, though he was still represented by the public defender's office, which had given him "fairly good quality" representation up to now, and that he had not moved to represent himself until after his Marsden motion was denied.
Finally, "on the Faretta issue itself, it's this Court's perspective that your conduct -- there is a reasonable basis for believing that your self-representation will disrupt the court proceedings under People v. Welch[, supra], 20 Cal.4th 701. [¶] I am concerned in terms of how you have talked about the reasons that you want to go to Faretta, and that dialogue that you just engaged in. I -- this Court has some question as to whether or not you would be competent to represent yourself in a legal matter. [¶] You're competent to be here as a defendant in terms of this criminally, but I have some real concern and questions about whether or not you could competently represent yourself in a legal matter without being entirely disruptive to this Court's process. So with that I'm going to deny your Faretta request."
DISCUSSION
Defendant contends his Faretta request should have been granted because it was timely and he was legally competent to represent himself. We conclude that, regardless of whether the motion was timely, the trial court properly denied it under People v. Johnson (2012) 53 Cal.4th 519 (Johnson) and Welch, supra, 20 Cal.4th 701.
In Johnson, supra, 53 Cal.4th 519, our Supreme Court held, in reliance on Indiana v. Edwards (2008) 554 U.S. 164 that, contrary to prior California law (see People v. Taylor (2009) 47 Cal.4th 850, 874-876; People v. Halvorsen (2007) 42 Cal.4th 379, 431-434; see also Welch, supra, 20 Cal.4th at p. 732), the fact that a defendant was competent to stand trial did not necessarily mean that he was competent to represent himself. (Johnson, supra, 53 Cal.4th at pp. 523, 528-530.) Following Edwards, Johnson held: "[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.) This standard should be applied "cautiously" because the Sixth Amendment generally grants the right to self-representation: "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.)
A trial court may appoint experts to assist it in determining the defendant's competence to represent himself, separately from its appointment of experts to determine competence to stand trial; however, the court is not required to do so. (Johnson, supra, 53 Cal.4th at pp. 530-531.) " '[T]he 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.' [Citation.]" (Id. at p. 531.)
Defendant questions whether Johnson and Edwards apply to postconviction proceedings. However, defendant cites no authority holding that they do not. Furthermore, although defendant's Faretta motion was made just before sentencing, its underlying purpose was to withdraw defendant's plea and take the case to trial.
In Welch, supra, 20 Cal.4th 701, our high court held that in light of the federal rule that a trial court " 'may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct' " (Faretta, supra, 422 U.S. at pp. 834-835, fn. 46 ), a trial court may deny self-representation in the first place "when a defendant's conduct prior to the Faretta motion gives the trial court a reasonable basis for believing that his self-representation will create disruption." (Welch, supra, 20 Cal.4th at p. 734.)
Because Welch was decided before Edwards and Johnson, it applied the pre-Edwards rule that the standard for competence to represent oneself was the same as the standard for competence to stand trial. (Welch, supra, 20 Cal.4th at p. 732.) --------
"Thus, a trial court must undertake the task of deciding whether a defendant is and will remain so disruptive, obstreperous, disobedient, disrespectful or obstructionist in his or her actions or words as to preclude the exercise of the right to self-representation. The trial court possesses much discretion when it comes to terminating a defendant's right to self-representation and the exercise of that discretion 'will not be disturbed in the absence of a strong showing of clear abuse.' [Citations.] We see no reason not to use the same deference when it comes to deciding whether a defendant's motion for self-representation should be granted in the first instance." (Welch, supra, 20 Cal.4th at p. 735.) In the case at hand, the Welch court upheld the trial court's denial of self-representation because the defendant's actions had shown that he "could not or would not conform his conduct to the rules of procedure and courtroom protocol, and that his self-representation would be unacceptably disruptive." (Ibid.)
Considering Johnson and Welch together, we conclude that if a defendant's conduct shows he cannot or will not conform his conduct to the rules of the courtroom, rendering his exercise of self-representation unacceptably disruptive, this fact may evince "a severe mental illness to the point where he . . . cannot carry out the basic tasks needed to present the defense without the help of counsel." (Johnson, supra, 53 Cal.4th at p. 530.) The trial court was well within its discretion in finding that this was the case here.
The colloquy between defendant and the trial court on his Faretta motion showed that, because he was (1) obsessed with his supposed (and possibly imaginary) past wrongs, (2) determined to relitigate those events rather than to defend himself against the present charges, and (3) unable to focus on the matter at hand no matter how often the court tried to get him to do so, or to refrain from repeatedly interrupting the court because he was "pissed off," he was incompetent to represent himself under Johnson and Welch. As the court found, defendant's conduct confirmed the psychologists' observations about his paranoia and his unreasonable and unrealistic notions of what his attorney and the court could do for him. If defendant had been allowed to represent himself, and had further been allowed to withdraw his plea and go to trial, his obsessions and his inability to curb them would have had "the capacity to bring his trial to a standstill." (Welch, supra, 20 Cal.4th at p. 734.)
Defendant asserts that the Johnson standard was not met here because he was not so obviously and grossly unfit to represent himself as the defendants in Johnson and in People v. Gardner (2014) 231 Cal.App.4th 945, and because the psychologists appointed to do the section 1368 evaluation did not state that defendant was incompetent to represent himself. Comparisons to other cases with different facts are usually unhelpful in determining how to apply a legal standard, as the trial court's findings necessarily turn on the facts of the case before the court. And, as we have already mentioned, the psychologists asked to assess defendant's competence to stand trial in this case were not asked to assess his competence to represent himself, which is not the subject of a section 1368 proceeding. Furthermore, since the standard of competence for self-representation is higher than that for competence to stand trial (Johnson, supra, 53 Cal.4th at p. 523), their opinions that defendant met the lower standard do not tend to prove that he met the higher standard.
So far as defendant addresses the facts of this case, he glosses over them too lightly. He refrains from direct quotation of his extended and rambling remarks, instead giving only a brief and sanitized paraphrase. He also ignores the trial court's repeated efforts to get him back on track during the Faretta hearing and his repeated failures to do so.
Defendant has failed to show that the trial court abused its discretion by denying his Faretta motion.
DISPOSITION
The order denying defendant's Faretta motion is affirmed.
RAYE, P. J. We concur: BUTZ, J. MURRAY, J.