Opinion
D072570
07-12-2018
THE PEOPLE, Plaintiff and Respondent, v. ERIC DELONZO FRANKLIN, Defendant and Appellant.
Kurt David Hermansen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JCF32230) APPEAL from an order of the Superior Court of Imperial County, Christopher J. Plourd, Judge. Order vacated and remanded. Kurt David Hermansen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
This is the second time this case comes before this court. In a previous decision, this court determined the superior court did not err when it determined Franklin was not competent to represent himself at trial, but also remanded the matter for resentencing on separate grounds. (People v. Franklin (Jan. 27, 2017, D068891) [nonpub. opn.] (Franklin).) Franklin filed a motion to represent himself at the resentencing, and the superior court, with a different judge presiding, allowed him to do so. Franklin now appeals from the resentencing order, with counsel, and contends he did not knowingly waive his right to counsel and was not competent to represent himself at the resentencing hearing or to understand the resentencing proceedings. He asks this court to remand once again for further proceedings following a competency determination, and the People concede the case should be remanded. As the superior court made no inquiry into Franklin's competence despite substantial evidence indicating he remained incompetent to represent himself and unable to knowingly waive his rights to counsel, we remand the case once again.
FACTUAL AND PROCEDURAL BACKGROUND
Franklin was convicted and served time in prison for attacking and raping his wife after they separated. After his release and despite a protective order, Franklin continued to make threats against her and, on at least one occasion, showed up at her house in violation of the protective order. As a result, in the case from which he now appeals, a jury found him guilty of making a criminal threat in violation of Penal Code section 422 and disobeying a domestic relations order in violation of section 273.6, subdivision (a). In a bifurcated court trial, the court also found true allegations that he had two prior strike convictions and two prior serious felonies pursuant to section 667, subdivisions (a)-(i), and sentenced him to 25 years to life plus an additional 2 years.
All further statutory references are to the Penal Code.
Franklin appealed the conviction and contended the trial court erred when it denied his request to represent himself at trial. (Franklin, supra, D068891.) The People asserted, in their responsive briefing, that the trial court incorrectly sentenced Franklin, and Franklin conceded the sentence was unauthorized and subject to correction. (Ibid.) In a written unpublished decision concerning the prior appeal, this court determined the trial court had not erred in refusing to allow Franklin to represent himself. (Ibid.) In reaching that conclusion, the court noted Franklin's attorney had requested a hearing pursuant to section 1368 to evaluate Franklin's mental competency, that Franklin was declared incompetent for a period of time, and that Franklin had filed "an entirely incoherent motion to dismiss and made bizarre references" to various public figures. (Ibid.) Separately, this court also determined resentencing was appropriate, and specifically pointed out that remand would afford the trial court the opportunity to entertain application of its power under section 1385 as set forth in People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530-532." (Franklin, supra, D068891.)
Romero, supra, 13 Cal.4th at pp. 530-532, discusses the trial court's discretion to strike prior felony convictions at a subsequent sentencing.
Resentencing Proceedings
On remand, Franklin again filed a request to represent himself. He attached several documents, including a copy of a Faretta waiver that he executed three years earlier when he made the previous request to represent himself at trial, and a motion for dismissal based on ineffective counsel. The filing also included a motion accusing former President Barack Obama of mutiny, treason, and espionage for using "Obama Care" to allow "illegals" into jails and prisons. A few days later, Franklin filed another motion for self-representation, which also requested immediate release and compensation for being held after his case was dismissed and attached the same previously filed Faretta waiver along with several other documents.
In Faretta v. California (1975) 422 U.S. 806 (Faretta), the United States Supreme Court held a defendant has a constitutional right to self-representation in criminal proceedings, so long as he or she knowingly and intelligently waives his or her Sixth Amendment right to be represented by counsel. --------
The trial court held an initial hearing regarding resentencing on May 10, 2017, with a new judge presiding since the judge that had handled the trial and previous sentencing hearing was no longer available. At the outset of the hearing, the court informed Franklin—who was not represented by counsel at the time—that his previous court-appointed counsel was also no longer available and, in response, Franklin stated he had filed a request to represent himself and wanted to do so. The court then had the following exchange with Franklin:
"THE COURT: And you understand that the Court has to advise you that may not be a good idea, but you have a constitutional right to do exactly what you're doing?
"THE DEFENDANT: Yes, Fifth Amendment.
"THE COURT: And so I want to advise you that you're going to be treated just like any—like if you have a lawyer and you're going to have to follow all the rules and so forth. And you're aware of those, all of those risks?
"THE DEFENDANT: Yes, Your Honor.
"THE COURT: So you've attached to your motion a Faretta waiver that was previously signed by yourself. Are you still familiar with any and all of those Faretta waiver admonishments?
"THE DEFENDANT: Yes, Your Honor.
"THE COURT: Has anything changed as far as your understanding of what the Faretta waivers are?
"THE DEFENDANT: No, Your Honor, just a little bit more in depth in terms of—from the Title 15 from 2015 and 2017.
"THE COURT: So is it your desire to represent yourself at this time?
"THE DEFENDANT: Yes.
"THE COURT: I'll grant the request."
The court asked the parties how they wanted to proceed with respect to sentencing and Franklin responded by asking for discovery and stating, "the documentation is inconsistent pertaining to this case itself and the fact it was even a conviction." He said the case had been previously dismissed because "the Marsden motion cancelled the case" and asked the court to allow him to subpoena two judges whom he asserted had each dismissed the case. The prosecutor stated Franklin had raised these issues numerous times in the past and that the case had continued despite them, but that she would need time to review the files before responding, so the court continued the hearing.
Franklin filed another motion to dismiss and a request for immediate release and compensation, again attaching the Faretta waiver and several other previously filed documents, but did not file anything regarding sentencing or a request to strike his prior felonies. The prosecution nevertheless filed an "Opposition to Motion to Strike Priors Pursuant to California Penal Code [section] 1385". Franklin did not respond to the opposition.
Over the course of three more hearings, Franklin continued to assert the case had been dismissed by the trial court granting a Marsden motion. He also claimed the charges were void because there was never a warrant for his arrest, someone in the prison system had tampered with the documents he submitted to the court, and a letter from the Commission on Judicial Performance confirmed the case was dismissed but that the relevant language was contained in an encrypted footer at the bottom of the document. He never addressed the prior felonies or the sentencing, and the trial court indicated it had reviewed the motions he did file thoroughly.
At the final hearing, Franklin made clear that he did not understand the proceedings, stating, "[b]asically this hearing pertaining to—the appellate court kicked this back for sentences due to—I want to make sure before I type up a motion. The appellate court kicked this back because—help me finish the sentence—because I'm not sure the reason for the appellate court kicking it back, was the fact they didn't have no discovery." In response, the prosecutor and the court clarified that the only issue on remand was sentencing and, specifically, to consider a motion pursuant to section 1485 to strike any of the previous strikes. However, Franklin continued to discuss the letter from the Commission on Judicial Performance and his allegation that the case had been dismissed, even after the court specifically asked for his position on resentencing. Once again, he did not make any arguments regarding sentencing or his prior felonies.
Thereafter, the court stated it had looked at Franklin's prior record and considered the Romero decision and its authority pursuant to section 1385, but that it did not find this to be an appropriate case to dismiss any of the prior strikes. Franklin continued to argue it was improper for the court to resentence him because the case was dismissed and there was no arrest warrant. The court noted Franklin's objections and resentenced him to 25 years to life, plus an additional 10 years for the prior serious felony convictions.
Franklin appeals.
DISCUSSION
With the assistance of counsel on appeal, Franklin contends the trial court erred by resentencing him without holding a competency hearing despite substantial evidence suggesting he was not competent to be sentenced; abused its discretion in granting his Faretta motion without addressing his competence to represent himself; and failed to obtain a knowing, voluntary, and intelligent waiver of his Sixth Amendment right to counsel. The People concede that the trial court abused its discretion by allowing Franklin to represent himself without first determining whether he was competent to do so, and that the case should therefore be remanded for further proceedings regarding Franklin's competency and resentencing.
A defendant typically has a right to present a defense in a criminal proceeding without the assistance of counsel, but that right is not absolute. (Faretta, supra, 422 U.S. at p. 835.) When a defendant chooses to forego a lawyer, he or she foregoes many benefits associated with the constitutional right to counsel. (Ibid.) Accordingly, the defendant must have a full understanding of the associated dangers and disadvantages and must elect to proceed without counsel voluntarily and intelligently. (Ibid.) In addition, the defendant must also "possess the mental capacity to comprehend the nature and object of the proceedings against him or her" for a waiver of his or her rights to be valid. (People v. Mickel (2016) 2 Cal.5th 181, 205 (Mickel); People v. Koontz (2002) 27 Cal.4th 1041, 1070 (Koontz).)
Further, to protect the most fundamental constitutional criminal law protection of a right to a fair trial, a trial court may insist that a defendant be represented by counsel where the defendant is not competent to conduct his or her own defense. (Indiana v. Edwards (2008) 554 U.S. 164, 177-178 (Edwards); People v. Johnson (2012) 53 Cal.4th 519, 523 (Johnson) [adopting pronouncement in Edwards as California law].) In California, the standard "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, at p. 530.) Because this standard differs from the standard for competency to stand trial, a court may find that a defendant is competent to stand trial but not competent to proceed without the assistance of counsel. (Edwards, at pp. 174-176; Johnson, at p. 523.)
As the trial judge is typically in the best position to determine the defendant's competency, we defer to the trial court's determination and uphold it so long as it is supported by substantial evidence. (Johnson, supra, 53 Cal.4th at pp. 531-533.) However, we determine the validity of a defendant's Faretta waiver de novo after reviewing the entire record. (Mickel, supra, 2 Cal.5th at p. 205; Koontz 27 Cal.4th at p. 1070.) "The test of a valid waiver of counsel is not whether specific warnings or advisements were given but 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. Bloom (1989) 48 Cal.3d 1194, 1225.)
Here, we agree with the parties that there was substantial evidence indicating Franklin was not competent to represent himself and that the trial court erred in allowing him to proceed without any inquiry into his competence. The trial court acknowledged that the case had been remanded by this court, this court's previous decision was part of the record on remand, and the trial court indicated it had reviewed the opinion. Therein, this court noted that Franklin's mental capacity was in serious question throughout the trial, that the trial court had found Franklin incompetent to stand trial for a period of several months before ultimately resuming the trial, and that the trial court had denied Franklin's requests to represent himself after concluding he was not competent to do so. Further, this court concluded the record fully supported the trial court's previous determination that Franklin was not competent to represent himself and the trial court had not abused its discretion in requiring Franklin to accept counsel.
Despite this history, the trial court on remand allowed Franklin to represent himself without any significant discussion of his competency or ability to knowingly waive his right to counsel. First, after noting Franklin submitted a Faretta waiver that he had previously signed, the court had only a short and formulaic exchange with Franklin to confirm he understood the waiver. When the court asked if anything had changed as far as Franklin's understanding of the waiver since he signed it—several years prior when he attempted to represent himself at trial but was found incompetent to do so—Franklin stated, "No, Your Honor, just a little bit more in depth in terms of—from the Title 15 from 2015 and 2017." Thereafter, the court did not ask any further questions about the waiver or Franklin's understanding of it. In addition, despite being familiar with this court's previous opinion, the court did not ask a single question regarding Franklin's competence to represent himself or the bizarre claims made in the documents included in Franklin's motion before granting the request.
Moreover, Franklin's statements and actions throughout the various hearings suggested a lack of competence. He continued to relentlessly pursue the argument that his case had been dismissed and that he had been arrested without a warrant, made strange allegations such as claiming a footer on a letter contained encrypted language stating his case had been dismissed, and filed a motion asserting Barack Obama violated the constitution by allowing "illegals" in prisons and requesting $3 million in damages and exemplary damages in the form of death by hanging for treason, mutiny and espionage. He made no arguments about resentencing or his prior felonies and at one point even directly stated that he did not know what the issue was on remand. Regardless, the court never made any reference to or inquiry into Franklin's competence to understand the resentencing proceeding or to represent himself.
In Mickel, our Supreme Court held a trial court need not " 'routinely inquire' into a defendant's mental competence when evaluating a Faretta motion," but that it must do so "where it has doubts about the defendant's competence." (Mickel, supra, 2 Cal.5th at p. 208.) The record here—including this court's previous opinion—strongly suggests the trial court had ample reason to harbor such doubts, but there is no suggestion the trial court even considered whether Franklin was competent to represent himself or to knowingly execute a Faretta waiver. (See In re Galaviz (2018) 23 Cal.App.5th 491, 506-507 [finding previous expert findings indicating competency concerns triggered obligation to hold additional competency hearing].) Moreover, there is no suggestion in the record of changed circumstances, or that the trial court had any other reason to overlook the history in this case when it accepted the waiver and allowed Franklin to represent himself without further inquiry. On this record, we conclude that the Faretta waiver was not valid, and that the court erred by accepting the waiver and allowing Franklin to proceed without counsel without any inquiry into his competence.
We therefore vacate the July 26, 2017 sentencing order and remand the matter to the superior court with instructions for the superior court to afford Franklin the opportunity to file a Romero motion before resentencing. Further, if Franklin still wishes to represent himself, the superior court shall first determine whether he is able to voluntarily and intelligently waive his right to counsel pursuant to Faretta and whether he is competent to proceed without the assistance of counsel.
Because we remand on these grounds, we need not consider Franklin's remaining arguments regarding competency. However, we note that the superior court is compelled to hold an evidentiary hearing at any time that there is substantial evidence of incompetence to stand trial. (See Pate v. Robinson (1966) 383 U.S. 375, 384-386; People v. Jones (1991) 53 Cal.3d 1115, 1152.)
DISPOSITION
The superior court's July 26, 2017 sentencing order is vacated and the case is remanded for resentencing and for further proceedings, if necessary, consistent with this opinion.
BENKE, Acting P. J. WE CONCUR: O'ROURKE, J. DATO, J.