Opinion
A147669
12-12-2018
THE PEOPLE, Plaintiff and Respondent, v. OBADIAH DARTAGNAN LOMALYNDA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCR-660507)
Defendant Obadiah Dartagnan Lomalynda appeals his conviction at a court trial of attempted robbery (Pen. Code, §§ 211, 664), for which he was sentenced to six years four months imprisonment. The court also found numerous enhancements to be true. This court initially remanded the case to the trial court to reconsider several sentencing issues, all of which were resolved on remand. There remains to be considered only defendant's contention that the trial court erred in denying his request to represent himself at his preliminary hearing and, if the conviction is affirmed, his request for a further remand for the trial court to determine whether to strike a five-year enhancement under Penal Code section 667, subdivision (a)(1) authorized by a recently enacted amendment to Penal Code section 1385, subdivision (b). We shall affirm defendant's conviction and remand so that the trial court may consider whether to strike this enhancement.
Background
On January 2, 2015, defendant was charged in a felony complaint with attempted robbery, a drug offense that was subsequently dismissed, and several enhancements. When he appeared before the court (Hon. Shelly Averill), he requested to proceed in propria person and executed a declaration confirming that request, and the court signed a "Findings and Order" form that recited, "On the basis of the above declaration and of my observation of and discussion with the defendant, I find that the defendant has voluntarily, intelligently, and with full understanding as to the disadvantages of self-representation, has chosen to represent himself/herself and to give up his/her right to counsel, including court-appointed counsel without charge to him/her."
The court made these findings despite several statements by defendant during the course of the appearance that might have raised doubts about his mental competence and level of understanding: "I'm familiar with Faretta forms. Also I'll be appearing, a special appearance for myself as an American national and nation sovereign. I'd like to at this time submit the Delegation of Authorities, Article Three with the authority from Congress to accordingly so." Later, "Entry of no plea at this time. I'd like to stipulate on the record a couple things. The first thing is capitalization of a name is identifiable as a corporate entity. I'm not a corporate entity. I'm a flesh and blood human being." Later, "Also at this time the court delegation of authority from Congress or act as an Article 34 . . . ," and after the court interrupted defendant with the explanation that "[t]his court is actually an elected official, so I operate by Constitution of the State of California. And that is the only authority you are going to receive," the defendant continued, "Okay, as a sovereign I'm outside, so if you are going to proceed under the Penal Code I'm not obligated to the Penal Code. Nor am I obligated to answer to that which I am not a party or knowingly entered into such."
Three days later, on January 5, defendant appeared for arraignment. The court (Hon. Robert LaForge) first confirmed that defendant still wished to proceed in pro per and then asked defendant if he pled guilty or not guilty. Defendant responded as follows: "I will be proceeding in pro per as a natural person, i.e., flesh and blood being whose nomen [sic] is all lower case lettering with divine ecclesiastical inalienable rights—[¶] (INTERRUPTION) [¶] Flesh and blood being whose nomen [sic] is all lower case lettering with divine ecclesiastical inalienable rights bestowed and endowed by my creator as a sovereign and is of local origin and lands which holds [sic] all native lands and colonial title as an American national of the Wappo Nation of Alexander Valley."
The court then asked defendant to "slow down a little bit," and defendant continued: "American as defined in 1800 Webster's dictionary to all lands occupied then and now as a direct legal descendent of Angelo Triple by defined authority and burdened upon those contesting and challenging or in opposition to this proof positive that such is nonexistent. [¶] As a constructive trust—constructive trust number, being this case number, which I haven't access to, I have not been given a report, as to enter my plea is to concede jurisdiction to which I object. And I demand on, in, and for the record this Tribunal's delegation of authority from Congress as a lawful Article 3 Court with such jurisdiction being subject matter jurisdiction and not jurisdiction of the subject matter. As a natural person living flesh and blood divine being is not a res nor a thing subject to the Penal Code of the California Constitution forthwith accordingly as such international law and Uniform Commercial Code govern the right to sovereign nations and those who knowingly, intelligently were, is, are a party to the compact, accord, agreement, forthright, and those who were, are not, is not, nor in agreeance as stipulated supra are not liable to count nor responsible to as the meaning of without prejudice stands. [¶] Furthermore, as proven, capitalization of such is fictitious, and lawful identity of a corporate entity to which a natural person is not either, and resolution of such would to be acknowledge the foregoing and stipulate on record to whom this trust is constructed by in this matter as to correctly identify each party's role in the constructive case being this case before the Court to which I stand only as beneficiary with authority to consent to charge the trust as applicable and approve so discharging in debt and responsibility upon the natural person and securing their immediate release from custody as is the Court's expressed identity known as, all capitals, OBADIAH DARTANIAN LOMALYNDA, sole bearer and burdened by this."
At this point the court interrupted and entered a plea of not guilty and denial of all allegations on defendant's behalf. The court referred defendant to Doctor Ranish. Evidently construing this as an expression of doubt about his mental competence, defendant responded, "We already talked to mental health. We also have a—an agent with the POC parole division. My sanity is not in question at this time. Mr. Guccileone who would also testify in this court as well as my psychologist which I had for four months in the State of California parole division." The court replied, "We're done for now" and at defendant's request referred the matter to probation for a bail report.
On January 7, 2015, Dr. Ranish was present in court. After apparently conferring with the doctor off the record and concluding that defendant was competent to stand trial, and before defendant was brought into the courtroom, the court stated, "I am appointing the public defender. I know that [defendant is] pro per at this point, but I'm going to revoke his pro per status based on his activities in the courtroom the other day and appoint the public defender." The court later explained that at that point the defendant's behavior had led him to believe that he was not competent to represent himself. Defendant was represented by a public defender when a preliminary hearing was scheduled and at the preliminary hearing on January 20, 2015, at which defendant was held to answer.
At the outset of the preliminary hearing, defendant renewed his request to represent himself but the court (Hon. Peter Ottenweller) refused to modify the prior order by Judge LaForge denying the request and appointing the public defender to represent defendant.
Judge LaForge appointed another doctor, David Schneider, to evaluate defendant's competence to represent himself at trial. In a report dated January 28, 2015, Dr. Schneider set forth the substance of his examination of defendant. Although the doctor's report expressed the opinion that defendant was not competent to waive the right to counsel and represent himself, on February 19, 2015 Judge LaForge advised defendant, "After my further review of Dr. Schneider's report, as well as points and authorities filed by [the public defender], I do believe that you are competent to represent yourself, if you wish." Defendant confirmed that he still did wish to do so and, after determining that defendant understood the consequences of his waiver, the court relieved the public defender. Defendant represented himself at trial, at which he was found guilty.
As indicated above, several enhancement allegations were also found true, presenting a number of sentencing issues. All of those issues were resolved on remand and are no longer in dispute. However, based on an amendment to section 1385, subdivision (b), signed by the Governor on September 30, 2018, to become effective January 1, 2019, defendant has requested that, if his conviction is affirmed, the matter be remanded to permit the trial court to exercise the newly granted discretion to strike the five-year enhancement that was imposed pursuant to section 667, subdivision (a).
Discussion
Defendant contends that his constitutional right to represent himself, recognized in Faretta v. California (1974) 422 U.S. 806, was violated when the court refused to permit him to represent himself at his preliminary hearing. Faretta, however, was qualified by the United States Supreme Court in Indiana v. Edwards (2008) 554 U.S. 164, 171, holding that the right of self-representation is not absolute. The current state of the law was summarized by our Supreme Court in People v. Johnson (2012) 53 Cal.4th 519 (Johnson) as follows: "Edwards held that '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.' . . . The court called those defendants competent to stand trial but not to represent themselves 'grey-area defendants.' " (53 Cal.4th at p. 527.)
The court in Johnson went on to observe that "Edwards described competence to represent oneself at trial as the ability 'to carry out the basic tasks needed to present [one's] own defense without the help of counsel.' . . . It also said the states may deny self-representation to those competent to stand trial but who 'suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.' " (Johnson, supra, 55 Cal.4th at p. 530.) The court then articulated "the standard that trial courts considering exercising their discretion to deny self-representation should apply . . . [as] 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." (Ibid.)
In Johnson, the court upheld the trial court's revocation of the defendant's self-representation based largely on the court's own observations in preliminary proceedings "during which [the defendant] filed a number of nonsensical motions and conducted himself in a bizarre and disruptive manner." (Johnson, supra, 55 Cal.4th at p. 532.) Although the trial court there had not obtained an expert's opinion of the defendant's competence, the court stated that "[a]s with other determinations regarding self-representation, we must defer largely to the trial court's discretion. . . . The trial court's determination regarding a defendant's competence must be upheld if supported by substantial evidence." (Id. at p. 531.) Further, " 'trial courts should be cautious about making an incompetence finding without benefit of an expert evaluation, though the judge's own observations of the defendant's in-court behavior will also provide key support for an incompetence finding.' " (Id. at pp. 530-531.)
The situation was much the same here. Although the judge had not observed defendant's in-court conduct over many months as had the trial court in Johnson, defendant's response to Judge LaForge on January 5 certainly was bizarre, to say the least. The court did not revoke defendant's self-representation status simply because it considered defendant's allusions to a "flesh and blood defense" to be groundless or even frivolous, as defendant argues, but it did so because defendant's extended response reasonably led the court to believe that defendant could not rationally conduct trial proceedings by himself. As subsequent developments reflect, the court may have been better advised to have awaited the report from Dr. Schneider before revoking defendant's self-representation status (although ironically Dr. Schneider concluded defendant was not competent to represent himself but the substance of his report convinced the court otherwise). Nonetheless, in light of the manner in which defendant conducted himself on January 5, we cannot say that the court abused its discretion in revoking his right to represent himself at that point. (Johnson, supra, 55 Cal.4th 519; People v. Welch (1999) 20 Cal.4th 701, 729-736.) Indeed, on the basis of defendant's remarks on January 5, the failure to have revoked his self-representation status at that point could just as easily have prompted the accusation that the court had denied his Sixth Amendment right to counsel. (See, e.g., People v. Mickel (2016) 2 Cal.5th 181, 208-210; People v. Weber (2013) 217 Cal.App.4th 1041, 1051-1056.)
In all events, even assuming the court erred in refusing to permit him to represent himself at the preliminary hearing, the error was harmless because he was permitted to represent himself subsequent to February 19 and at trial. Although defendant contends that the error was "structural," requiring reversal without regard to prejudice, we adhere to the well-reasoned decision in People v. Tena (2007) 156 Cal.App.4th 598, 615, that denial of "the right to self-representation confined to the preliminary hearing is subject to harmless error analysis pursuant to Chapman [v. California (1967) 386 U.S. 18]."
Defendant contends that the denial of his right to represent himself at the preliminary hearing was not harmless beyond a reasonable doubt, but we are not persuaded. To show prejudice, defendant points only to the fact that his attorney did not call a character witness at the preliminary hearing that he wanted to call (who, defendant feared, might not be available at trial), and that he was unable to cross-examine the victim at the preliminary hearing. He argues, "Because it is impossible to know the outcome of the examination or how it would have affected the trial if appellant had been permitted to call his witness, the People cannot demonstrate that the deprivation of his right to represent himself at the preliminary hearing was harmless beyond a reasonable doubt." However, at trial the character witness did testify and defendant exhaustively cross-examined the victim of the attempted robbery. Having heard the testimony of both the witness and the victim at trial, defendant nonetheless points to nothing that he would have learned at the preliminary examination that he did not learn or that would have affected his examination of these witnesses at trial. The trial testimony suggests nothing and we cannot realistically conceive of anything. We confidently conclude beyond a reasonable doubt that defendant suffered no prejudice because he did not represent himself at the preliminary hearing.
The Attorney General does not oppose a remand to permit the trial court to exercise the newly conferred discretion to consider an application to strike defendant's section 667 subdivision (a)(1) sentence enhancement after the effective date of the statutory amendment.
The Attorney General correctly points out that the statutory amendment conferring discretion on the trial court to strike the enhancement does not become effective until January 1, 2019. However, since the amendment will apply to all cases not final as of the effective date of the amendment, and this case will not be final on that date, we direct remand at this point to avoid needless additional proceedings. (See People v. Garcia (2018) 28 Cal.App.5th 961.
Disposition
The judgment as amended on remand is affirmed, except that the matter is remanded to the trial court for consideration after January 1, 2019 of an application by defendant to strike the five-year enhancement imposed pursuant to section 667, subdivision (a)(1).
Pollak, J. We concur: Siggins, P.J.
Jenkins, J.
Presiding Justice of the Court of Appeal, First Appellate District, Division Four, sitting by assignment pursuant to article VI, section 6 of the California Constitution. --------